Legislature(2003 - 2004)

04/05/2004 01:27 PM RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                    ALASKA STATE LEGISLATURE                                                                                  
               HOUSE RESOURCES STANDING COMMITTEE                                                                             
                         April 5, 2004                                                                                          
                           1:27 p.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Representative Nancy Dahlstrom, Co-Chair                                                                                        
Representative Beverly Masek, Co-Chair                                                                                          
Representative Cheryll Heinze, Vice Chair                                                                                       
Representative Carl Gatto                                                                                                       
Representative Bob Lynn                                                                                                         
Representative Nick Stepovich                                                                                                   
Representative Kelly Wolf                                                                                                       
Representative Beth Kerttula                                                                                                    
Representative David Guttenberg                                                                                                 
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
All members present                                                                                                             
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
HOUSE BILL NO. 546                                                                                                              
"An Act  relating to  regulation of  the discharge  of pollutants                                                               
from  timber-related  activities  under  the  National  Pollutant                                                               
Discharge  Elimination System;  relating to  waste treatment  and                                                               
disposal  permits; making  conforming  amendments; and  providing                                                               
for an effective date."                                                                                                         
                                                                                                                                
     - MOVED HB 546 OUT OF COMMITTEE                                                                                            
                                                                                                                                
HOUSE BILL NO. 309                                                                                                              
"An Act prohibiting the release of nonindigenous predatory fish                                                                 
into public water."                                                                                                             
                                                                                                                                
     - HEARD AND HELD                                                                                                           
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: HB 546                                                                                                                  
SHORT TITLE: POLLUTION DISCHARGE & WASTE TRMT/DISPOSAL                                                                          
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR                                                                                    
                                                                                                                                
03/25/04       (H)       READ THE FIRST TIME - REFERRALS                                                                        
03/25/04       (H)       RES, JUD                                                                                               
04/05/04       (H)       RES AT 1:00 PM CAPITOL 124                                                                             
                                                                                                                                
BILL: HB 309                                                                                                                  
SHORT TITLE: PROHIBIT RELEASE OF PREDATORY FISH                                                                                 
SPONSOR(S): REPRESENTATIVE(S) WOLF                                                                                              
                                                                                                                                
05/08/03       (H)       READ THE FIRST TIME - REFERRALS                                                                        
05/08/03       (H)       FSH, RES                                                                                               
05/16/03       (H)       FSH AT 7:30 AM CAPITOL 124                                                                             
05/16/03       (H)       Heard & Held                                                                                           
05/16/03       (H)       MINUTE(FSH)                                                                                            
03/22/04       (H)       FSH AT 9:00 AM CAPITOL 124                                                                             
03/22/04       (H)       Moved CSHB 309(FSH) Out of Committee                                                                   
03/22/04       (H)       MINUTE(FSH)                                                                                            
03/24/04       (H)       FSH RPT CS(FSH) NT 3DP 2NR                                                                             
03/24/04       (H)       DP: GARA, WILSON, SEATON; NR: OGG,                                                                     
03/24/04       (H)       GUTTENBERG                                                                                             
03/31/04       (H)       RES AT 1:00 PM CAPITOL 124                                                                             
03/31/04       (H)       Heard & Held                                                                                           
03/31/04       (H)       MINUTE(RES)                                                                                            
04/01/04       (H)       JUD REFERRAL ADDED AFTER RES                                                                           
04/05/04       (H)       RES AT 1:00 PM CAPITOL 124                                                                             
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
ERNESTA BALLARD, Commissioner                                                                                                   
Department of Environmental Conservation (DEC)                                                                                  
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Presented HB 546.                                                                                          
                                                                                                                                
DAN EASTON, Director                                                                                                            
Division of Water                                                                                                               
Department of Environmental Conservation                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Answered questions relating to HB 546.                                                                     
                                                                                                                                
OWEN GRAHAM, Executive Director                                                                                                 
Alaska Forest Association                                                                                                       
Ketchikan, Alaska                                                                                                               
POSITION STATEMENT:  Testified in favor of HB 546.                                                                              
                                                                                                                                
JONATHAN TILLINGHAST, Attorney at Law                                                                                           
Simpson, Tillinghast, Sorensen & Longenbaugh                                                                                    
Lobbyist for Sealaska Corporation                                                                                               
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Testified in support of HB 546.                                                                            
                                                                                                                                
MYRL THOMPSON, Member                                                                                                           
Ogan is So Gone                                                                                                                 
Wasilla, Alaska                                                                                                                 
POSITION STATEMENT:  Testified during the discussion of HB 546.                                                                 
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
TAPE 04-18, SIDE A                                                                                                            
Number 0001                                                                                                                     
                                                                                                                                
CO-CHAIR  NANCY DAHLSTROM  called  the  House Resources  Standing                                                             
Committee  meeting  to  order  at   1:27  p.m.    Representatives                                                               
Dahlstrom,  Masek, Gatto,  Lynn, Wolf,  Guttenberg, and  Kerttula                                                               
were present  at the call  to order.  Representatives  Heinze and                                                               
Stepovich arrived as the meeting was in progress.                                                                               
                                                                                                                                
HB 546-POLLUTION DISCHARGE & WASTE TRMT/DISPOSAL                                                                              
                                                                                                                                
Number 0080                                                                                                                     
                                                                                                                                
CO-CHAIR  DAHLSTROM announced  that the  first order  of business                                                               
would be  HOUSE BILL NO. 546,  "An Act relating to  regulation of                                                               
the discharge of pollutants  from timber-related activities under                                                               
the National Pollutant Discharge  Elimination System; relating to                                                               
waste   treatment  and   disposal   permits;  making   conforming                                                               
amendments; and providing for an effective date."                                                                               
                                                                                                                                
Number 0148                                                                                                                     
                                                                                                                                
ERNESTA  BALLARD,   Commissioner,  Department   of  Environmental                                                               
Conservation, (DEC), presented HB 546  on behalf of the Office of                                                               
the  Governor.   She  said  she and  the  governor are  extremely                                                               
interested  in  the   National  Pollutant  Discharge  Elimination                                                               
System  (NPDES) program  because it  is  the core  tool that  the                                                               
state   should   have   available    to   it   to   fulfill   its                                                               
responsibilities under the Clean Water Act (CWA).                                                                               
                                                                                                                                
COMMISSIONER BALLARD explained that HB  546 would instruct DEC to                                                               
seek   primacy,  the   primary  responsibility   from  the   U.S.                                                               
Environmental  Protection   Agency  (EPA)  for   permitting  just                                                               
timber-related waste discharges under  the federal NPDES program.                                                               
Upon approval, DEC and not  EPA would issue discharge permits for                                                               
the timber-industry sector  in Alaska, she explained.   The NPDES                                                               
program actually  covers a number  of important  industry sectors                                                               
including  not just  timber, but  also seafood,  mining, oil  and                                                               
gas,  and  municipal  sewage treatment  facilities,  which  would                                                               
remain under the jurisdiction of EPA.                                                                                           
                                                                                                                                
COMMISSIONER BALLARD  said this bill is  simply a partial-primacy                                                               
bill  and gives  DEC an  opportunity to  work out  the method  of                                                               
assuming  primacy in  an  industry sector  where  DEC has  better                                                               
expertise  than  EPA  does.    It  is  the  state  water  quality                                                               
standards and  certification of a  federal permit that  allow the                                                               
site-specific and  risk-based conditions  that make all  of these                                                               
permits possible  and feasible in  the unique  circumstances that                                                               
DEC encounters in Alaska, she said.                                                                                             
                                                                                                                                
COMMISSIONER BALLARD went  on to say that  with a partial-primacy                                                               
program, the other  industry sectors have the  opportunity to see                                                               
how  DEC approaches  the  regulations  and works  with  EPA in  a                                                               
primacy situation.   Referring  to a letter  of support  from the                                                               
Resource  Development  Council (RDC),  she  said  DEC has  worked                                                               
closely  with  other  industry   sectors  to  ensure  that  there                                                               
wouldn't be industry opposition to a partial-primacy approach.                                                                  
                                                                                                                                
Number 0342                                                                                                                     
                                                                                                                                
COMMISSIONER  BALLARD said  primacy has  a number  of advantages.                                                               
Referring to  a DEC handout  entitled "Partial NPDES  Primacy for                                                               
Timber-Related   Wastewater  Discharges,"   she  said   the  most                                                               
important expected benefit  is that giving DEC  primacy even just                                                               
for  the  timber  industry  would begin  a  move  toward  holding                                                               
Alaskans  accountable to  Alaskans for  this extremely  important                                                               
activity in developing resources and protecting the environment.                                                                
                                                                                                                                
COMMISSIONER BALLARD,  noting that the mission  priorities, level                                                               
of effort, and performance measures  in DEC's regulatory programs                                                               
are subject to annual review  and approval by the legislature, an                                                               
extremely  important  process, added,  "As  long  as EPA  retains                                                               
primacy, that opportunity is lost  to Alaskans.  The planning and                                                               
budgeting for a  federally run NPDES program does  not offer this                                                               
opportunity  for  state comment  and  control."   Noting  that  a                                                               
second important benefit  is that a state-run  program focuses on                                                               
results, not process, she explained:                                                                                            
                                                                                                                                
     The state  tools in our  water quality  standards allow                                                                    
     us to  do site-specific and risk-based  permitting.  We                                                                    
     can  adjust mixing  zones, site-specific  criteria, and                                                                    
     naturally occurring conditions.   We can look at issues                                                                    
     that pertain to the  circumstances of the discharge and                                                                    
     write a  permit that suits  that discharge, and  we are                                                                    
     not bound by a single, common approach by all permits.                                                                     
                                                                                                                                
     This  ability has  allowed us  to work  with situations                                                                    
     which are unfamiliar to the  EPA staff, as they are not                                                                    
     Alaskans, they're not here, they're  not on the ground,                                                                    
     and they're not  often able to travel  to the locations                                                                    
     where the permits actually are located.                                                                                    
                                                                                                                                
Number 0580                                                                                                                     
                                                                                                                                
REPRESENTATIVE WOLF asked how many  positions would be increased.                                                               
He  said  he  sees  one  position   in  the  fiscal  note  and  a                                                               
contractual amount of $300,000 in fiscal years 2005 and 2006.                                                                   
                                                                                                                                
CO-CHAIR DAHLSTROM  noted the presence of  Representatives Heinze                                                               
and Stepovich.                                                                                                                  
                                                                                                                                
Number 0668                                                                                                                     
                                                                                                                                
DAN   EASTON,  Director,   Division  of   Water,  Department   of                                                               
Environmental Conservation, said a large  part of [the amount] is                                                               
for contractual  legal assistance  through the Department  of Law                                                               
(DOL) and for technical assistance.                                                                                             
                                                                                                                                
REPRESENTATIVE WOLF  asked if,  in two  years, that  amount would                                                               
drop to less than 15 percent.                                                                                                   
                                                                                                                                
COMMISSIONER  BALLARD replied  that it  would take  two years  to                                                               
write the  regulations to implement the  new statutory authority;                                                               
once those are adopted, those requirements go away.                                                                             
                                                                                                                                
Number 0707                                                                                                                     
                                                                                                                                
REPRESENTATIVE STEPOVICH spoke in favor  of giving the state more                                                               
control over discharge permits.   He asked what problems would be                                                               
alleviated by this bill.                                                                                                        
                                                                                                                                
COMMISSIONER BALLARD  replied that 45  of 50 states  have assumed                                                               
primacy.  The  Clean Water Act is structured on  the premise that                                                               
states would  assume primacy  and run  their own  water discharge                                                               
programs.  Alaska is only one  of five states that have not taken                                                               
that  step.     She   said  EPA   is  responsible   for  writing,                                                               
administrating,  and   enforcing  water  discharge   permits  for                                                               
industry.   That program has  been barely satisfactory  in recent                                                               
years,  she opined;  it is  understaffed, and  processing permits                                                               
took years.   It will not cost  the state less, but  more, to run                                                               
its own program,  but it will provide timely  responses to permit                                                               
applicants, she concluded.                                                                                                      
                                                                                                                                
REPRESENTATIVE STEPOVICH  said it will  cost the state  more, but                                                               
surmised that  more will  get done and  the safety  concerns will                                                               
all be  met.  He  remarked, "It sounds like  we can go  after the                                                               
resources in  a safe manner, and  we can finally do  that instead                                                               
of doing nothing and sitting on our hands."                                                                                     
                                                                                                                                
COMMISSIONER BALLARD responded that DEC  has not been "sitting on                                                               
our hands,"  and, ironically, the  federal CWA has  two pertinent                                                               
sections  to  these  permits:   Section  402,  which  writes  the                                                               
permit,  and  Section  401,  which  is  the  requirement  that  a                                                               
federally issued  permit or any  permit is certified  to maintain                                                               
state   water   quality   standards,  and   DEC   provides   that                                                               
certification.  The way that  the program presently runs is this:                                                               
the federal  government proposes  the permit,  and then  DEC goes                                                               
through  a  second process,  side-by-side,  to  certify that  the                                                               
federal  permit will  meet state  water quality  standards.   She                                                               
said DEC's water quality standards  are already the basis for the                                                               
federal  permits, as  well as  the state  permits, and  there are                                                               
often differences  in interpretation of standards;  this leads to                                                               
protracted debates between EPA and DEC.                                                                                         
                                                                                                                                
Number 1038                                                                                                                     
                                                                                                                                
REPRESENTATIVE GATTO pointed  to the analysis in  the fiscal note                                                               
where it  says the bill directs  DEC to seek authority  from EPA.                                                               
He asked if  the bill is simply requesting EPA  to "turn over the                                                               
reins" to DEC.                                                                                                                  
                                                                                                                                
COMMISSIONER   BALLARD  replied   that   it   is  slightly   more                                                               
complicated than that.   Before EPA will even  receive a request,                                                               
it  needs assurance  that DEC  has adequate  statutory authority,                                                               
and there are a few small fixes in this bill.  She explained:                                                                   
                                                                                                                                
     It's  primarily an  amendment  to  our core  permitting                                                                    
     statutory authorities.   Those  fixes are  necessary to                                                                    
     get the question  asked, and they primarily  have to do                                                                    
     with our ability  to charge fees, to fine,  and to hold                                                                    
     people negligent at the criminal  level.  Without those                                                                    
     authorities, EPA  would be inclined to  say, "The state                                                                    
     legislature hasn't  really given you  enough authority.                                                                    
     We're not ready to talk yet."                                                                                              
                                                                                                                                
     This bill  gives us all  the authorities we need  to be                                                                    
     ready to  talk; then  we spend ...  the next  period of                                                                    
     months  working out  with EPA  all of  the requirements                                                                    
     that  they will  hold  us to  before  they release  the                                                                    
     reins.     You  have  to  demonstrate   that  you  have                                                                    
       equestrian skills before the reins are put in your                                                                       
     hands.                                                                                                                     
                                                                                                                                
Number 1133                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GUTTENBERG said,  "Why  don't we  grab the  whole                                                               
pizza instead of just taking the slice that says timber?"                                                                       
                                                                                                                                
COMMISSIONER  BALLARD said  that  was  the department's  original                                                               
intent,  but   it  was   unable  in  the   first  year   of  this                                                               
administration to  successfully address  all of the  questions of                                                               
all of  the industry sectors, a  number of which first  wanted to                                                               
see how  this new  program works  out.   The timber  industry was                                                               
ready,  she said,  and DEC  and EPA  had agreed  to go  ahead and                                                               
pilot it.                                                                                                                       
                                                                                                                                
REPRESENTATIVE  GUTTENBERG asked  what it  meant that  the timber                                                               
industry was ready.                                                                                                             
                                                                                                                                
COMMISSIONER  BALLARD  said  that  the  timber  industry's  major                                                               
permitting issue  is the  log transfer  facility (LTF),  of which                                                               
there are just under 100,  divided among the U.S. Forest Service,                                                               
Native corporations,  and a few  municipal facilities.   The last                                                               
five years have been characterized  by pretty intensive effort on                                                               
the  part  of   the  state  and  federal   permitting  staffs  to                                                               
understand and properly permit these LTFs.   Most of the work has                                                               
been done by DEC, which has  the expertise, she said.  That's why                                                               
it makes  sense to go ahead  in the timber industry,  where there                                                               
is clearly established technical and regulatory excellence.                                                                     
                                                                                                                                
REPRESENTATIVE GUTTENBERG  asked if  this is limited  to transfer                                                               
facilities, not sawmills and other discharge processors.                                                                        
                                                                                                                                
COMMISSIONER  BALLARD  answered  that  the  statute  is  for  all                                                               
timber-industry activities, the bulk of which are LTFs.                                                                         
                                                                                                                                
Number 1310                                                                                                                     
                                                                                                                                
REPRESENTATIVE  HEINZE  asked  Commissioner  Ballard  to  further                                                               
describe pollutants.                                                                                                            
                                                                                                                                
COMMISSIONER  BALLARD replied  that  the principal  issue in  the                                                               
timber  industry  is  the  residue   from  log  loading  and  log                                                               
handling,  which is  bark  and chips.   She  said  what is  being                                                               
discussed is the effects of wood  in the marine environment:  the                                                               
bark that has  fallen, the pile that has  accumulated, the proper                                                               
management  of that  pile,  and  the degree  to  which that  pile                                                               
influences the  sea floor on which  it sits and the  water column                                                               
above it.                                                                                                                       
                                                                                                                                
REPRESENTATIVE  HEINZE  asked  if  the resins  in  the  bark  are                                                               
poisonous to marine life.                                                                                                       
                                                                                                                                
COMMISSIONER  BALLARD replied  that  the principal  environmental                                                               
issue is the  smothering of the benthic community  and the degree                                                               
to  which that  smothering might  have a  population-level impact                                                               
versus  a  site-specific  impact.     There  are  compounds  that                                                               
ultimately  might result  from the  breakdown of  that wood,  and                                                               
those  issues would  also be  covered, as  they are  now, as  the                                                               
water quality  standards are applied  to the permitting  of LTFs,                                                               
she related.                                                                                                                    
                                                                                                                                
REPRESENTATIVE STEPOVICH  remarked, "Safely  and by the  book, we                                                               
make sure  that the water's  fine."  He  asked if the  bill would                                                               
speed up the permitting process.                                                                                                
                                                                                                                                
COMMISSIONER BALLARD said yes.                                                                                                  
                                                                                                                                
Number 1440                                                                                                                     
                                                                                                                                
REPRESENTATIVE GATTO asked if there  is a solution to correct the                                                               
problem after the bark and residue have polluted the water.                                                                     
                                                                                                                                
COMMISSIONER  BALLARD said  the  ideal  permitting program  would                                                               
anticipate such issues before permitting  to begin with, in order                                                               
to  protect the  life  of  the benthic  community  and the  water                                                               
column.  Once  wood debris is on the floor,  there are relatively                                                               
few opportunities to  correct it, such as capping  it or dredging                                                               
it, she added.                                                                                                                  
                                                                                                                                
REPRESENTATIVE GATTO  asked if  both fresh  water and  salt water                                                               
are being addressed.                                                                                                            
                                                                                                                                
COMMISSIONER BALLARD replied yes,  it is a comprehensive program,                                                               
but said she couldn't recall a freshwater impact.                                                                               
                                                                                                                                
REPRESENTATIVE  GATTO  suggested  an  accidental  discharge  into                                                               
fresh water such as a river.                                                                                                    
                                                                                                                                
COMMISSIONER  BALLARD said  the bill  would cover  it, and  added                                                               
that The  New York  Times had  referred to  Tongass Narrows  as a                                                             
river.                                                                                                                          
                                                                                                                                
REPRESENTATIVE  WOLF  suggested that  the  icing  in fresh  water                                                               
would deal with the wood debris and tannic acid byproducts.                                                                     
                                                                                                                                
COMMISSIONER BALLARD said  if there was an application  for a log                                                               
transfer in  fresh water, DEC  would take into  consideration all                                                               
of the site-specific characteristics including temperature.                                                                     
                                                                                                                                
Number 1613                                                                                                                     
                                                                                                                                
REPRESENTATIVE  KERTTULA  asked if  any  other  states split  out                                                               
industries in getting their primacy programs in place.                                                                          
                                                                                                                                
COMMISSIONER BALLARD deferred  to Mr. Tillinghast.   She said she                                                               
believes there have been other instances.                                                                                       
                                                                                                                                
REPRESENTATIVE KERTTULA referred to Section  5 of the bill, where                                                               
it  says notice  can  be given  of the  availability  of a  draft                                                               
permit.   She  asked  if  that is  a  real  change and  requested                                                               
clarification.                                                                                                                  
                                                                                                                                
COMMISSIONER BALLARD  said it is  a real change, and  it conforms                                                               
to all  of DEC's other permitting  programs.  It makes  sense for                                                               
DEC  to  notice  a  draft  permit and  not  an  application,  she                                                               
suggested.  A good deal of  work normally goes into perfecting an                                                               
application,  and it  is inappropriate  to  encourage comment  on                                                               
something  that  DEC has  not  acknowledged  as a  completed  and                                                               
acceptable application, she explained.                                                                                          
                                                                                                                                
Number 1745                                                                                                                     
                                                                                                                                
REPRESENTATIVE GUTTENBERG  asked what the  status of the  LTFs is                                                               
and how the bill would affect permitting them.                                                                                  
                                                                                                                                
COMMISSIONER  BALLARD replied  that LTFs  in the  state currently                                                               
are permitted by  EPA under a general permit.   If the statute is                                                               
passed, a  transition period  will be  negotiated that  will move                                                               
those permits into DEC's jurisdiction,  and the permit applicants                                                               
will not be disadvantaged by that,  she opined.  At renewal time,                                                               
DEC would be  the responsible party for renewal,  and there would                                                               
be a continuity of permit coverage through the transition.                                                                      
                                                                                                                                
REPRESENTATIVE  GATTO  inquired if  the  disposal  of sawdust  is                                                               
covered by this bill.                                                                                                           
                                                                                                                                
COMMISSIONER BALLARD said [HB 546]  would authorize DEC to assume                                                               
primacy for all timber-industry activities.                                                                                     
                                                                                                                                
REPRESENTATIVE  GATTO said  the question  comes up  between clean                                                               
air  and   clean  water,  and   many  times  sawdust   is  simply                                                               
incinerated,  and  sometimes there  is  a  conflict.   He  stated                                                               
support for the bill.                                                                                                           
                                                                                                                                
COMMISSIONER BALLARD said DEC is  the agency for jurisdiction for                                                               
air also,  and one advantage  to having  state primacy is  that a                                                               
situation like that is taken into consideration all the time.                                                                   
                                                                                                                                
Number 1921                                                                                                                     
                                                                                                                                
OWEN  GRAHAM,  Executive  Director,  Alaska  Forest  Association,                                                               
spoke in favor  of HB 546, saying it will  help ensure that site-                                                               
specific permits  take into  account local  conditions.   He also                                                               
said it  is an  opportunity to achieve  water quality  goals that                                                               
the state has while streamlining the permitting process.                                                                        
                                                                                                                                
REPRESENTATIVE  GUTTENBERG asked  Mr. Graham  how he  feels about                                                               
shifting the costs over to the industry.                                                                                        
                                                                                                                                
MR. GRAHAM  said he  has talked  to DEC about  it, and  the costs                                                               
don't seem to  be prohibitive for the large companies.   He added                                                               
that  his organization  may ask  the state  for an  exemption for                                                               
some of the smaller operations.                                                                                                 
                                                                                                                                
Number 2015                                                                                                                     
                                                                                                                                
JONATHAN  TILLINGHAST,  Attorney  at Law,  Simpson,  Tillinghast,                                                               
Sorensen  &  Longenbaugh,   Lobbyist  for  Sealaska  Corporation,                                                               
commented on  the terms  and limitations  in the  current general                                                               
permitting  for  LTFs  with  the  hope of  putting  some  of  the                                                               
concerns about  the discharge to  rest.  The general  permit only                                                               
authorizes  discharges  into salt  water  where  there is  strong                                                               
tidal flushing  so that the  bark disperses,  he said.   The site                                                               
cannot  be   located  close  to  fish   habitat  or  concentrated                                                               
shellfish  beds.   These guidelines  were developed  back in  the                                                               
'80s by a  team of federal, state, and  private scientists called                                                               
the  Alaska Timber  Task Force,  he explained.   The  permit also                                                               
provides  that if  the  bark  pile should  ever  exceed an  acre,                                                               
remediation is required, he noted.                                                                                              
                                                                                                                                
MR. TILLINGHAST  responded to  the question  of whether  the bark                                                               
leaches toxic chemicals.  He  referred to a two-year adjudication                                                               
of that  issue, saying experts  had testified and  an independent                                                               
hearing  had led  to  the conclusion  that if  the  terms of  the                                                               
general  permit  are  in compliance,  toxic  chemicals  won't  be                                                               
leached.                                                                                                                        
                                                                                                                                
Number 2175                                                                                                                     
                                                                                                                                
MR.  TILLINGHAST related  that now  two permits  are needed,  one                                                               
from EPA and one  from the state.  The Clean  Water Act does give                                                               
states the opportunity to put  that package together and have the                                                               
state issue  the whole thing,  but Alaska  is one of  five states                                                               
that  have not  done  that,  he said.    Worse  than needing  two                                                               
permits is  that if someone  wants to challenge the  permit, that                                                               
person can  file two overlapping, duplicative  legal proceedings,                                                               
one in front of a state  hearing officer and the other before the                                                               
9th Circuit Court of Appeals.                                                                                                   
                                                                                                                                
MR.  TILLINGHAST     said  the  9th  Circuit   Court  of  Appeals                                                               
proceedings have caused  concern for many reasons.   If this bill                                                               
passes,  the  federal  judiciary  is taken  out  of  the  process                                                               
entirely,  and  any  challenge  to  the  permit  would  be  heard                                                               
exclusively  through the  state  process.   Another advantage  is                                                               
that primacy  "defederalizes" the permit decision  and it becomes                                                               
exclusively a state action; therefore,  the possibility of having                                                               
to  do  an  environmental  impact   statement  goes  away,  which                                                               
significantly streamlines the permit process.                                                                                   
                                                                                                                                
MR. TILLINGHAST emphasized  that primacy is a big  deal; for some                                                               
industries, it may significantly change  the way that permits are                                                               
issued, but  it's hard for  those industries to predict  how that                                                               
is going to happen.  Timber  just has one general permit that DEC                                                               
has already spent  two years adjudicating and working  on, and so                                                               
all of the expertise is in  Alaska already, he explained.  If the                                                               
NPDES program for  the oil industry is  changed, refinery permits                                                               
would  need  to be  dealt  with,  which would  involve  difficult                                                               
engineering issues,  as opposed  to LTF  permits, which  are more                                                               
straightforward, he said.                                                                                                       
                                                                                                                                
Number 2391                                                                                                                     
                                                                                                                                
REPRESENTATIVE  KERTTULA  asked  if  the  9th  Circuit  Court  of                                                               
Appeals has original jurisdiction.                                                                                              
                                                                                                                                
MR.  TILLINGHAST explained  that  a person  doesn't  even get  an                                                               
administrative hearing  in front  of EPA;  it goes  straight from                                                               
the  administrator's pre-adjudicatory  decision to  a three-judge                                                               
panel in the 9th Circuit Court of Appeals.                                                                                      
                                                                                                                                
REPRESENTATIVE KERTTULA  opined that [HB  546] is a  good change.                                                               
She asked for Mr. Tillinghast's take  on LTFs and wondered if the                                                               
streamlining still allowed for environmental protection.                                                                        
                                                                                                                                
MR.  TILLINGHAST  replied that  the  concerns  that underlie  the                                                               
Endangered  Species Act  and the  Essential Fish  Habitat Program                                                               
are in  the state standards  already and have been  applied quite                                                               
awhile.                                                                                                                         
                                                                                                                                
Number 2518                                                                                                                     
                                                                                                                                
MYRL THOMPSON,  Member, Ogan is  So Gone, Wasilla,  inquired what                                                               
the difference is  between the cost of the EPA  permit versus the                                                               
DEC proposal.  He also asked  about the funding cuts in [coal bed                                                               
methane]  regulations and  how this  program could  afford to  be                                                               
funded.    He asked  how  many  timber-related permits  had  been                                                               
issued in recent years.  He  wondered if the tidal movement would                                                               
move the bark  out where it could collect away  from the one-acre                                                               
area,  and  whether the  streamlined  process  means less  public                                                               
notice and public input.                                                                                                        
                                                                                                                                
COMMISSIONER BALLARD  replied that  she didn't  have in  front of                                                               
her the schedule of the  costs associated with the present timber                                                               
program,  but  she  explained  what  the  costs  would  be  under                                                               
primacy.    Currently, EPA  doesn't  charge  for the  service  it                                                               
provides to  run the  NPDES program,  except through  income tax.                                                               
However,  DEC charges  a fee  for certification  and for  general                                                               
fund support.  She said EPA  won't provide any money to the state                                                               
to run a  primacy program, so those costs would  have to be split                                                               
between a general fund appropriation,  which would be sought from                                                               
the legislature, and fee income.   This particular industry would                                                               
not have  excessive costs associated  with it, because  a general                                                               
permit  would continue  to  be  used for  the  98 LTFs  currently                                                               
eligible for participation, she added.   They would all share the                                                               
cost of the one general permit.                                                                                                 
                                                                                                                                
Number 2708                                                                                                                     
                                                                                                                                
COMMISSIONER BALLARD went  on to say EPA favors  states that take                                                               
primacy, and there  is a $40,000 grant available,  which would be                                                               
split between the  two years; that would bear  a significant cost                                                               
of writing  the regulations.   Responding  to the  question about                                                               
bark,  Commissioner Ballard  said  the  general permit  currently                                                               
requires, as would a state  permit, observation that is performed                                                               
through a  dive.   There is  a protocol for  diving; if  there is                                                               
movement  of the  bark, it  would be  noticed, she  surmised, and                                                               
reported in the dive survey.                                                                                                    
                                                                                                                                
COMMISSIONER BALLARD  said the streamlining mentioned  earlier by                                                               
Mr.  Graham   referred  to  the  consolidation   of  the  federal                                                               
government  with  jurisdiction  for  Section 402  and  the  state                                                               
government  with jurisdiction  for Section  401 processes,  which                                                               
means  the  permit applicant  needs  to  deal with  two  separate                                                               
agencies.   The  streamlining  would be  to  consolidate the  two                                                               
sections of the Clean Water Act under the jurisdiction of DEC.                                                                  
                                                                                                                                
REPRESENTATIVE  GUTTENBERG asked  whether the  difference between                                                               
fees  generated  and  costs  would be  about  $100,000  once  the                                                               
transition costs have been met.                                                                                                 
                                                                                                                                
COMMISSIONER BALLARD affirmed that, saying  it is about one staff                                                               
person.                                                                                                                         
                                                                                                                                
REPRESENTATIVE GUTTENBERG  asked if a second  person would reduce                                                               
expenses by bringing  in more fee income because  more work would                                                               
be done.                                                                                                                        
                                                                                                                                
COMMISSIONER  BALLARD  replied that  the  new  employee would  be                                                               
added to a program group of about 25 employees.                                                                                 
                                                                                                                                
REPRESENTATIVE  GUTTENBERG  asked   about  spreading  around  the                                                               
$100,000 hole in general funds to get rid of it.                                                                                
                                                                                                                                
COMMISSIONER  BALLARD  responded that  the  air  program is  more                                                               
heavily  permit-recipient funded  than the  water program  is, so                                                               
the legislature  has dealt with  such issues; from time  to time,                                                               
the balance  has been  shifted, which could  be discussed  at the                                                               
time the program is implemented.                                                                                                
                                                                                                                                
Number 2882                                                                                                                     
                                                                                                                                
REPRESENTATIVE  HEINZE  asked  what  the  Department  of  Natural                                                               
Resources (DNR) thinks of the bill.                                                                                             
                                                                                                                                
COMMISSIONER BALLARD  said it is  an administration bill  and, by                                                               
virtue of that, is supported by all departments.                                                                                
                                                                                                                                
REPRESENTATIVE GATTO  used the  terms "biological  oxygen demand"                                                               
and "anaerobic  decomposition" and  asked about the  effects that                                                               
spread well  beyond the acre  [of bark].   He asked if  those two                                                               
terms were considered in the two-year study.                                                                                    
                                                                                                                                
COMMISSIONER   BALLARD  answered   that  those   are  among   the                                                               
parameters  within  the  state  water  quality  standards.    The                                                               
department is  responsible to affirm  that a  permitted situation                                                               
is likely to  achieve state water quality  standards.  Therefore,                                                               
the  permitting authority  has the  responsibility to  assert and                                                               
demonstrate that the permit will  achieve the state water quality                                                               
standards.                                                                                                                      
                                                                                                                                
Number 2959                                                                                                                     
                                                                                                                                
CO-CHAIR  MASEK moved  to report  HB 546  out of  committee [with                                                               
individual recommendations and the accompanying fiscal notes].                                                                  
                                                                                                                                
[Not on  tape, but reconstructed  from the  committee secretary's                                                               
log  notes, was  that  there  was no  objection  and  HB 546  was                                                               
reported from the House Resources Standing Committee.]                                                                          
                                                                                                                                
HB 309-PROHIBIT RELEASE OF PREDATORY FISH                                                                                     
                                                                                                                                
TAPE 04-18, SIDE B                                                                                                            
Number 2960                                                                                                                     
                                                                                                                                
CO-CHAIR  DAHLSTROM announced  that the  final order  of business                                                               
would be HOUSE  BILL NO. 309, "An Act prohibiting  the release of                                                               
nonindigenous  predatory fish  into public  water."   [Before the                                                               
committee, adopted  as a  work draft on  3/31/04, was  Version W,                                                               
labeled 23-LS1097\W, Utermohle, 3/23/04.]                                                                                       
                                                                                                                                
Number 2930                                                                                                                     
                                                                                                                                
REPRESENTATIVE  WOLF,   sponsor  of  HB  309,   said  some  legal                                                               
questions had been brought forward  at the last bill hearing, and                                                               
he thought  it would be appropriate  for the bill to  be reviewed                                                               
by the House Judiciary Standing Committee.                                                                                      
                                                                                                                                
CO-CHAIR DAHLSTROM  commended Representative Wolf  for requesting                                                               
that the  bill receive another  committee of referral,  which she                                                               
said she thought was appropriate.                                                                                               
                                                                                                                                
Number 2910                                                                                                                     
                                                                                                                                
CO-CHAIR  MASEK moved  to report  CSHB 309,  Version 23-LS1097\W,                                                               
Utermohle,   3/23/04,   out    of   committee   with   individual                                                               
recommendations and the accompanying  fiscal notes, and asked for                                                               
unanimous consent.                                                                                                              
                                                                                                                                
REPRESENTATIVE GUTTENBERG  objected.   He asked  if the  bill had                                                               
received a [referral] to the House Judiciary Standing Committee.                                                                
                                                                                                                                
CO-CHAIR DAHLSTROM answered yes.                                                                                                
                                                                                                                                
REPRESENTATIVE  STEPOVICH  expressed   concerns  that  previously                                                               
asked  questions  should  be  answered  by  the  House  Judiciary                                                               
Standing Committee  before the bill  leaves committee.   He asked                                                               
what recourse there  would be if the [$1,500  fine amount] wasn't                                                               
changed in that committee.                                                                                                      
                                                                                                                                
Number 2844                                                                                                                     
                                                                                                                                
REPRESENTATIVE WOLF explained that he'd  talked with the chair of                                                               
the  House   Judiciary  Standing  Committee  and   had  expressed                                                               
concerns about  [the amount of the  fine].  He said  he wanted to                                                               
give the  department a few  more "teeth" with regard  to catching                                                               
people who  are transporting  live pike, because  it is  an issue                                                               
that costs  the State  of Alaska  a tremendous  amount.   He said                                                               
$40,000 [the cost to ADF&G  to exterminate yellow perch knowingly                                                               
deposited  in  a  lake  on  the  Kenai  Peninsula]  isn't  "small                                                               
change."                                                                                                                        
                                                                                                                                
CO-CHAIR  DAHLSTROM  said  she'd  also had  a  conversation  with                                                               
members  of the  House  Judiciary  Standing Committee  concerning                                                               
several items  such as the  class C  felony and the  fine amount,                                                               
and whether  those are  equitable and  equal to  the crime.   She                                                               
said she  believes that  committee is  the appropriate  place for                                                               
[the bill]  to go.  She  said it would  then go to the  floor and                                                               
"if people don't feel right about it, it won't leave the floor."                                                                
                                                                                                                                
[HB 309  was held over.   The motion to report  CSHB 309, Version                                                               
23-LS1097\W,  Utermohle,  3/23/04,  out  of  committee  was  left                                                               
pending with an objection.]                                                                                                     
                                                                                                                                
ADJOURNMENT                                                                                                                   
                                                                                                                                
There being no  further business before the  committee, the House                                                               
Resources Standing Committee meeting was adjourned at 2:18 p.m.                                                                 

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