Legislature(2001 - 2002)
04/26/2002 01:53 PM House RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE RESOURCES STANDING COMMITTEE
April 26, 2002
1:53 p.m.
MEMBERS PRESENT
Representative Beverly Masek, Co-Chair
Representative Drew Scalzi, Co-Chair
Representative Joe Green
Representative Mike Chenault
Representative Gary Stevens
Representative Mary Kapsner
Representative Beth Kerttula
MEMBERS ABSENT
Representative Hugh Fate, Vice Chair
Representative Lesil McGuire
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 140(FIN)
"An Act relating to regulation and licensing of certain water-
power development projects; and providing for an effective
date."
- MOVED CSSB 140(FIN) OUT OF COMMITTEE
SENATE BILL NO. 356 am
"An Act relating to the authority of the Department of
Environmental Conservation to issue general and individual
permits for waste disposal; and providing for an effective
date."
- HEARD AND HELD
PREVIOUS ACTION
BILL: SB 140
SHORT TITLE:SMALL WATER-POWER DEVELOPMENT PROJECTS
SPONSOR(S): SENATOR(S) TORGERSON
Jrn-Date Jrn-Page Action
03/13/01 0641 (S) READ THE FIRST TIME -
REFERRALS
03/13/01 0641 (S) RES, FIN
03/21/01 (S) RES AT 3:30 PM BUTROVICH 205
03/21/01 (S) Heard & Held
03/21/01 (S) MINUTE(RES)
04/06/01 (S) RES AT 3:30 PM BUTROVICH 205
04/06/01 (S) -- Meeting Canceled --
02/08/02 (S) RES AT 3:30 PM BUTROVICH 205
02/08/02 (S) Moved Out of Committee
02/08/02 (S) MINUTE(RES)
02/11/02 2153 (S) RES RPT 4DP 2NR
02/11/02 2153 (S) DP: TORGERSON, STEVENS,
HALFORD,
02/11/02 2153 (S) WILKEN; NR: ELTON, LINCOLN
02/21/02 (S) FIN AT 9:30 AM SENATE FINANCE
532
02/21/02 (S) Heard & Held
02/21/02 (S) MINUTE(FIN)
03/01/02 2336 (S) FN1: (CED)
03/01/02 2336 (S) FN2: (DNR)
03/01/02 2336 (S) FN3: (DFG)
04/02/02 (S) FIN AT 4:00 PM SENATE FINANCE
532
04/02/02 (S) Heard & Held
04/03/02 (S) FIN AT 9:00 AM SENATE FINANCE
532
04/03/02 (S) Heard & Held -- Recessed to
4:00 pm --
04/03/02 (S) MINUTE(FIN)
04/04/02 2630 (S) FIN RPT CS 1DP 4NR TECH TITLE
CH
04/04/02 2630 (S) NR: KELLY, HOFFMAN, WILKEN,
OLSON;
04/04/02 2630 (S) DP: GREEN
04/04/02 2630 (S) FN1: (CED)
04/04/02 2630 (S) FN2: (DNR)
04/04/02 2630 (S) FN3: (DFG)
04/04/02 (S) FIN AT 9:00 AM SENATE FINANCE
532
04/04/02 (S) Moved CS(FIN) Out of
Committee
04/04/02 (S) MINUTE(FIN)
04/08/02 2658 (S) RULES TO CALENDAR 1OR 4/8/02
04/08/02 2659 (S) READ THE SECOND TIME
04/08/02 2659 (S) FIN CS ADOPTED UNAN CONSENT
04/08/02 2659 (S) COSPONSOR(S): LEMAN
04/08/02 2660 (S) ADVANCED TO 3RD READING FLD
Y14 N5 E1
04/08/02 2660 (S) ADVANCED TO THIRD READING 4/9
CALENDAR
04/08/02 (S) RLS AT 10:30 AM FAHRENKAMP
203
04/08/02 (S) MINUTE(RLS)
04/09/02 2687 (S) READ THE THIRD TIME CSSB
140(FIN)
04/09/02 2687 (S) PASSED Y17 N2 E1
04/09/02 2688 (S) EFFECTIVE DATE(S) SAME AS
PASSAGE
04/09/02 2688 (S) ELLIS NOTICE OF
RECONSIDERATION
04/10/02 2716 (S) RECON TAKEN UP - IN THIRD
READING
04/10/02 2717 (S) PASSED ON RECONSIDERATION Y15
N3 E1 A1
04/10/02 2717 (S) EFFECTIVE DATE(S) SAME AS
PASSAGE
04/10/02 2718 (S) TRANSMITTED TO (H)
04/10/02 2718 (S) VERSION: CSSB 140(FIN)
04/11/02 2877 (H) READ THE FIRST TIME -
REFERRALS
04/11/02 2877 (H) RES, FIN
04/26/02 (H) RES AT 1:30 PM CAPITOL 124
BILL: SB 356
SHORT TITLE:GENERAL PERMIT FOR WATER/WASTE DISPOSAL
SPONSOR(S): STATE AFFAIRS
Jrn-Date Jrn-Page Action
03/27/02 2542 (S) READ THE FIRST TIME -
REFERRALS
03/27/02 2542 (S) RES
04/03/02 (S) RES AT 3:30 PM BUTROVICH 205
04/03/02 (S) Moved Out of Committee
04/03/02 (S) MINUTE(RES)
04/03/02 (S) MINUTE(RES)
04/04/02 2631 (S) RES RPT 4DP
04/04/02 2631 (S) DP: TORGERSON, HALFORD,
STEVENS, WILKEN
04/04/02 2631 (S) FN1: ZERO(DEC)
04/08/02 (S) RLS AT 10:30 AM FAHRENKAMP
203
04/08/02 (S) MINUTE(RLS)
04/09/02 2683 (S) RULES TO CALENDAR 4/9/02
04/09/02 2686 (S) READ THE SECOND TIME
04/09/02 2686 (S) ADVANCED TO THIRD READING
UNAN CONSENT
04/09/02 2686 (S) READ THE THIRD TIME SB 356
04/09/02 2687 (S) PASSED Y17 N2 E1
04/09/02 2687 (S) EFFECTIVE DATE(S) SAME AS
PASSAGE
04/09/02 2687 (S) ELTON NOTICE OF
RECONSIDERATION
04/10/02 2715 (S) RECON TAKEN UP - IN THIRD
READING
04/10/02 2715 (S) RETURN TO SECOND FOR AM 1
UNAN CONSENT
04/10/02 2715 (S) AM NO 1 ADOPTED UNAN CONSENT
04/10/02 2716 (S) AUTOMATICALLY IN THIRD
READING ON RECON
04/10/02 2716 (S) PASSED ON RECONSIDERATION Y14
N3 E1 A2
04/10/02 2716 (S) EFFECTIVE DATE(S) SAME AS
PASSAGE
04/10/02 2718 (S) TRANSMITTED TO (H)
04/10/02 2718 (S) VERSION: SB 356 AM
04/11/02 2878 (H) READ THE FIRST TIME -
REFERRALS
04/11/02 2878 (H) RES
04/26/02 (H) RES AT 1:30 PM CAPITOL 124
WITNESS REGISTER
DARWIN PETERSON, Staff
to Senator John Torgerson
Alaska State Legislature
Capitol Building, Room 427
Juneau, Alaska 99801
POSITION STATEMENT: Presented SB 140 on behalf of Senator John
Torgerson, sponsor.
SALLY SADDLER, Legislative Liaison
Division of Community and Business Development
Department of Community & Economic Development
P.O. Box 110801
Juneau, Alaska 99811-0801
POSITION STATEMENT: Provided testimony and answered questions
relating to SB 140.
SUSAN SCHRADER
Alaska Conservation Voters (ACV)
P.O. Box 22151
Juneau, Alaska 99802
POSITION STATEMENT: Expressed ACV's concerns relating to SB 140
and SB 356.
JAN KONIGSBERG
Trout Unlimited
1399 West 34th, Suite 205
Anchorage, Alaska 99503
POSITION STATEMENT: Provided testimony on SB 140; on behalf of
the Alaska Public Waters Coalition he suggested that the current
federal program works but acknowledged that a few problems
exist; urged the committee to try to fix the current federal
program rather than start a new state program.
WILL ABBOTT, Commissioner
Regulatory Commission of Alaska (RCA)
Department of Community & Economic Development
1016 West 6th Avenue
Anchorage, Alaska 99501
POSITION STATEMENT: Provided testimony and answered questions
relating to SB 140.
CHIP DENNERLEIN, Director
Division of Habitat and Restoration
Alaska Department of Fish & Game
333 Raspberry Road
Anchorage, Alaska 99518-1579
POSITION STATEMENT: Testified on SB 140; expressed support for
the concept of the bill but also expressed related concerns and
he offered strong support for the adoption of the proposed
amendment seeking direction from the legislature.
JOE BALASH, Staff
to Senator Gene Therriault
Alaska State Legislature
Capitol Building, Room 121
Juneau, Alaska 99801
POSITION STATEMENT: Presented SB 356 on behalf of the Senate
State Affairs Standing Committee, sponsor, which Senator Gene
Therriault chairs.
COLONEL FRED LEHMAN, U.S. Army Alaska Garrison Commander
(Address not provided)
Fort Richardson, Alaska 99488
POSITION STATEMENT: Testified on SB 356; urged the committee to
include an amendment that would exempt training activities
involving munitions conducted by the U.S. Department of Defense
or a U.S. military agency.
JOHN McDONAGH, Environmental Counsel
U.S. Army Alaska
600 Richardson Drive, Number 5700
Fort Richardson, Alaska 99505-6700
POSITION STATEMENT: Testified on SB 356; urged the committee to
include an amendment that would exempt training activities
involving munitions conducted by the U.S. Department of Defense
or a U.S. military agency.
TOM CHAPPLE, Director
Division of Air and Water Quality
Department of Environmental Conservation
555 Cordova Street.
Anchorage, Alaska 99501
POSITION STATEMENT: Provided testimony and answered questions
relating to SB 356.
MATT GILL, Staff
to Representative Eldon Mulder
Alaska State Legislature
Capitol Building
Juneau, Alaska 99801
POSITION STATEMENT: Testified on SB 356 on behalf of
Representative Eldon Mulder in support of any amendment that
would clarify the U.S. Army's position regarding the use of the
Eagle River Flats artillery training range.
ACTION NARRATIVE
TAPE 02-39, SIDE A
Number 0001
CO-CHAIR BEVERLY MASEK called the House Resources Standing
Committee meeting to order at 1:53 p.m. Representatives Masek,
Scalzi, Green, Chenault, and Stevens were present at the call to
order. Representatives Kapsner and Kerttula arrived as the
meeting was in progress.
SB 140-SMALL WATER-POWER DEVELOPMENT PROJECTS
CO-CHAIR MASEK announced that the first order of business would
be CS FOR SENATE BILL NO. 140(FIN), "An Act relating to
regulation and licensing of certain water-power development
projects; and providing for an effective date."
Number 0075
DARWIN PETERSON, Staff to Senator John Torgerson, presented SB
140 on behalf of Senator Torgerson, sponsor. Mr. Peterson
explained that U.S. Senator Frank Murkowski had sponsored a bill
amending the Federal Power Act to provide state jurisdiction for
Alaska over small hydroelectric projects. Consequently, this
legislation transferred licensing and regulatory authority over
hydroelectric projects of five thousand kilowatts or less to the
State of Alaska.
MR. PETERSON suggested that bringing this regulatory authority
to the state will reduce the great time and expense associated
with federal licensing and the regulation of small hydro
projects in Alaska. He noted that the time and money required
for federal licensing is virtually prohibitive for some small
utility and personal projects. Before Alaska can acquire
jurisdiction from the Federal Energy Regulatory Commission
(FERC), the legislature must approve this bill and the governor
must submit a program satisfying FERC's regulatory requirements.
As SB 140 is currently drafted, the Regulatory Commission of
Alaska (RCA) would be the regulatory agency responsible. He
said all of the current environmental protections required under
federal law will still apply, and cannot be preempted by this
legislation.
Number 0228
CO-CHAIR SCALZI noted that the Alaska Department of Fish & Game
(ADF&G) had expressed concerns about the scope of review and the
time allotment, and he said ADF&G suggested that there hadn't
been adequate time to address issues that may occur in the
approximately six hundred different sites throughout the state.
He asked Mr. Peterson if there had been discussion with ADF&G on
remedying those concerns.
MR. PETERSON in response, noted that Senator Torgerson is
familiar with ADF&G's concerns. He offered his understanding
that the program will go forth by enacting this legislation;
subsequently, the RCA would establish a program very similar to
FERC's current program and would work with FERC to develop a
much better understanding of how this program is currently
regulated. Mr. Peterson suggested that the [new program] can't
be much different from FERC's current program or FERC would not
approve of it, and that FERC has ultimate veto power as to
whether the State of Alaska acquires jurisdiction over this
program. He said the unknown variables could not be addressed
in this legislation, but rather would be addressed by the
administration when developing the new program.
Number 0391
REPRESENTATIVE STEVENS referred to the sponsor statement and he
asked for clarification about hydroelectric projects [located on
Indian reservations, conservation units of [Alaska National
Interest Lands Conservation Act (ANILCA)], or rivers designated
for the Wild and Scenic Rivers System] that would not be
eligible for state jurisdiction.
MR. PETERSON explained that the language was taken directly from
federal legislation and that the only Indian reservation in
Alaska is Metlakatla, which the state wouldn't acquire
jurisdiction over. Mr. Peterson said he didn't know how many
Wild and Scenic Rivers there are in Alaska, but that any small
hydro projects on those rivers would not be applicable.
Number 0500
CO-CHAIR SCALZI moved to adopt CSSB 140(FIN). There being no
objection, it was so ordered.
Number 0510
CO-CHAIR SCALZI turned attention to a proposed written
amendment, which read [original punctuation provided]:
The Regulatory Commission of Alaska, in colsultation
[sic] with the Commissioners of DNR, DCED and DF&G,
will report to the legislature by February 15th 2003
with their assessment of how the licensing of small
hydro projects by the state of Alaska would be
accomplished. This report will include the impact on
the operating budget, funding mechanism, staff
requirements, potential statutory changes, timelines
and public participation for developing regulations
and any other items deemed important by the
administration.
CO-CHAIR SCALZI said he thought the proposed amendment
essentially asks for direction from the legislature and won't
have any effect on the bill. He asked if Senator Torgerson had
any problem with the proposed amendment.
MR. PETERSON, in response, said Senator Torgerson doesn't think
the proposed amendment is necessary because this bill would go
into effect January 1, 2003. He suggested the new
administration should be able to coordinate with those
departments and work together so the RCA can develop a program
that closely resembles FERC's program and satisfies all of the
agency's concerns. Mr. Peterson said it is the sponsors'
opinion that this [amendment] would complicate the issue. He
explained that the intent of the bill is to take the enabling
federal legislation and authorize the administration to begin
the process of discovering how the program will work and to work
with FERC to establish a program. Mr. Peterson noted that the
proposed amendment may have an unnecessary fiscal impact.
Number 0780
SALLY SADDLER, Legislative Liaison, Division of Community and
Business Development, Department of Community & Economic
Development, testified. She explained that when this bill was
introduced, the administration convened an interagency team that
consisted of DNR, ADF&G, [Alaska Coastal Management Program
(ACMP)], RCA, and DCED to look over the bill to try to determine
what the full effects and impacts would be. She said some of
those common points that had emerged from the interagency team's
review of the bill are that the RCA is an appropriate agency to
assume these duties, and while it represents an expansion of
what the RCA is currently doing, it is believed that the fiscal
notes will reflect those additional duties; that the development
of small hydro projects can support economic development and
improve the availability and cost of hydropower in rural Alaska;
and that a state program may have advantages by allowing the
focus of the process to be on those issues that are pertinent to
Alaska.
MS. SADDLER explained that when this federal legislation was
pending in Washington, D.C., then-Governor Knowles wrote a
letter that supported giving Alaska jurisdiction for the
takeover of those "FERC-like" responsibilities. She said the
governor also recognized that this is a complex undertaking and
the [importance] of a state program that results in the proper
protection of fish, wildlife, and the environment at least as
well as, or as rigorously as, FERC currently does it. Ms.
Saddler said the governor also acknowledged the importance of
establishing an appropriate funding mechanism for the process
that could either be a direct appropriation or based on a user-
fee system. Currently, she said, the RCA operates under the
regulatory cost-charge, which is a recovery system that passes
those fees on to different users. She offered her understanding
that [the RCA] is coming up against the regulatory cost-charge
cap.
MS. SADDLER noted that the packet contains three fiscal notes
for the RCA, DNR, and ADF&G, and she suggested it will take up
to two years to develop regulations that define the program
operations. She said once those regulations have been
recommended or are established, FERC would have up to one year
to approve the program before ceding authority to the state, and
that the interagency team believes it would be prudent to have
the RCA and respective commissioners report the results of the
scoping project back to the legislature. Ms. Saddler said
agencies currently understand their roles and responsibilities
under the FERC process, but it is not entirely clear whether all
that FERC does and what the state will be assuming are fully
understood.
MS. SADDLER said, for example, in the case of ADF&G, it is
unknown whether the state would have the statutory authority to
take on the FERC program. She explained that FERC has
jurisdiction over entire watersheds, while ADF&G only has
oversight over streambeds. She suggested that there may be a
mismatch and that some statutory requirements may need to be
implemented. Ms. Saddler said the thought is that with this
amendment, items like the impact on the operating budget, the
kind of funding mechanism that would be recommended, staffing
requirements, and any sort of statutory changes that are needed
for the smooth implementation of the provisions of this program
would be included.
Number 1078
SUSAN SCHRADER, Alaska Conservation Voters (ACV), testified.
Ms. Schrader explained that this bill does begin the process of
authorizing state takeover of FERC authority for licensing of
small hydro projects. She said ACV's main concern with this
program is the expense that will be entailed to do this
properly, and while it is realized that FERC will have ultimate
authority to approve whatever program the state comes up with,
it is pretty unrealistic to suggest that this is a place where
the state should be putting its limited funds. Ms. Schrader
acknowledged that there are some problems with the FERC process,
and she said an appropriate response would be what the
congressional delegation can do to address those problems with
FERC. She suggested that there are no particular advantages to
the state's taking over this costly process, and she expressed
concern as to whether RCA is the appropriate lead entity to be
looking at this.
MS. SCHRADER noted that FERC regulations are particularly
esoteric, and suggested that the RCA might find that it is quite
a daunting task to design a program [and implement] all of the
regulations within two years. She turned attention to the
ongoing funding [that would be necessary] for the departments to
implement this program, and she pointed out that DNR has had
problems with its water-quantity program because it doesn't have
enough funding or staff needed to process the applications, and
yet the legislature is looking at adding more tasks and jobs to
its [workload]. She suggested that one of two things is going
to happen: With not enough money to support the state's doing
this type of licensing, the small hydropower developers that
want the licenses are going to find that they're not gaining
time by the state having the authority and that it will be just
as timely a process as having FERC do it; in the alternative,
the process will be short-cut so that the developers don't have
long time delays, and that will come at the expense of
unavoidable environmental impacts, resulting in a lot of
outraged public.
MS. SCHRADER expressed concern about the language of the bill
and she said as it is currently written, there is no protection
for state special lands - state parks, state game refuges, and
critical habitat areas - leaving them all possibly open for
consideration for hydropower development. Certainly, she said,
any proposals to do projects in those areas are going to meet
with a lot of public opposition and lead to a lot of delays,
which, to her understanding, is one of the major points of the
state's taking over, to avoid the delays that already exist with
FERC. She said ACV is very interested in finding ways to bring
cleaner, more economically affordable power generation to the
rural communities and would like to see the reliance on diesel
generation minimized as much as possible.
Number 1312
MS. SCHRADER suggested that hydropower is not necessarily a
clean, environmentally friendly source; she said it can be under
certain situations but does require careful oversight. She said
ACV would like to see [rural communities] get away from diesel
generation and move toward hydropower, which, she suggested,
could still be done within the framework of the FERC process.
Ms. Schrader said there is no need for the state to assume what
she suspects will be a very costly program that the legislature
is going to have to deal with yearly to fund all those positions
at the various departments involved. She pointed out that
Alaska would be the very first state to which FERC would have
delegated the authority for this oversight. Ms. Schrader
suggested it may be a good thing, but she said she didn't know,
and that she thought it was little risky for the state to be
looking at that [because] it is the first time this has ever
been done.
CO-CHAIR MASEK noted that Representative Stevens' research
indicated that there are 27 rivers listed in the state
designated under the Wild and Scenic River System that are
exempt from this bill.
Number 1464
JAN KONIGSBERG, Trout Unlimited, noted that he was testifying on
behalf of Alaska Public Waters Coalition ("Coalition"). He
characterized the Coalition as an association that includes
sport fishing groups, conservation organizations, former members
of the "Alaska water board," and other individuals who are
concerned about executive actions or legislative and regulatory
initiatives that affect Alaska's water resources. Mr.
Konigsberg explained that SB 140 will allow the State of Alaska
to assume licensing authority for hydroelectric projects of five
megawatts or less. He said the Coalition believes that
regardless of the size, all proposed hydroelectric projects
should be scrutinized thorough a rigorous licensing process to
ensure that the project, once constructed and in operation, will
have the least environmental impact possible over the life of
the project. Mr. Konigsberg said the Coalition is not opposed
to this legislation if the state can accomplish this licensing
in a manner at least as stringent as FERC, but the Coalition
does not believe that this will necessarily be the case.
MR. KONIGSBERG said the Coalition is puzzled by the
legislatures' "seeming eagerness" to mandate that the state
assume a federal program for which there is no accompanying
appropriation, especially given the magnitude of the state's
current fiscal problems. He suggested that the fiscal note, of
approximately $300,000 after the three-year period, is probably
too conservative of an estimate. Mr. Konigsberg talked about
the legislature's rationale for embracing an unfunded federal
mandate, and he suggested that the proponents of this
legislation are convinced that a state licensing program will
provide regulatory relief from what they believe to be an
onerous federal process, but that these same proponents
acknowledge that the state process must be as rigorous as that
of the federal government. "How can both be true, we would like
to know," he asked.
MR. KONIGSBERG asked, if the program was to be funded at
$300,000 per year, how the general public would take that
appropriation that may come from a general fund, when other dire
needs exist within human service agencies. He pointed out that
some of these projects will be built by out-of-state hydropower
developers, some of whom will receive federal grants. Mr.
Konigsberg said not only will the state be incurring significant
administrative costs pursuant to hydropower licensing, it will
assume, "we believe," significant liability, particularly in the
area of dam safety. Currently, he explained, the state has no
liability for FERC-licensed projects; once the state undertakes
licensing, it will also be responsible for dam inspection.
Therefore, he said, in the case of a dam failure, should that
result in damage to life and private property or result in
natural resource damage, it may not be the dam owner alone that
is responsible or held accountable.
Number 1678
MR. KONIGSBERG suggested that if the state were sued, the cost
of litigation and actual damages could dwarf the annual cost of
the licensing program. He said it is wishful thinking to
presume that a state regulatory program will be any speedier
than the current federal program. First, he said, this will be
new terrain for the RCA, so startup missteps and delays can be
expected, and he pointed out that DNR has not been able to keep
up with a relatively simple and straightforward water rights
program. So, realistically, how would DNR deal with an increase
in workload in its water and dam safety programs as required by
state hydropower programs, he asked. Mr. Konigsberg suggested
if the real intent of this legislation is to achieve hydropower
licensing efficiency at the expense of stringent environmental
enforcement by skimping on environmental review and permitting,
then these projects will face lengthy delays due to legal
challenges. He suggested that the FERC process works but needs
improvement, and he said it would behoove the state to join with
others to improve the federal program rather than take on a new
program in this period of fiscal uncertainty.
Number 1753
WILL ABBOTT, Commissioner, Regulatory Commission of Alaska
(RCA), Department of Community and Economic Development,
testified briefly. Mr. Abbott concurred with Ms. Saddler's
testimony.
Number 1783
REPRESENTATIVE STEVENS turned attention to the fiscal notes and
he asked Mr. Abbott if he had an idea of what the costs to the
state would be and if licensing fees would cover the cost of
inspections.
MR. ABBOTT, in response, said federal legislation is silent on
whether the state will receive the funding that now goes to FERC
for those projects. Currently, he explained, each operating
project pays FERC a charge based on the kilowatts that it
generates. He indicated that FERC puts that money back into its
program to assist with staffing costs and to keep costs low for
future licensees. He questioned how the state would do that
without tapping into the general fund "a whole bunch." He also
questioned how the state would get [the program] started and
whether it would assume responsibility for existing hydro
projects of five megawatts or less. He indicated he did not
know whether the state would be receiving those funds and that
was one of the reasons the [department] wanted time to
communicate with FERC to try and resolve those issues.
Number 1878
REPRESENTATIVE KERTTULA asked, if the legislature gives the
department state authority to have licensing fees, whether that
will that resolve it or whether federal authority will also be
required.
MR. ABBOTT remarked, "Because it doesn't say on there, I would
assume that we'll get that; maybe that's optimistically assuming
on my part, but I'm assuming because it is silent, that we
will."
REPRESENTATIVE KERTTULA asked for clarification on whether he
was referring to the state bill or the federal law.
MR. ABBOTT, in response, said they are both silent.
Number 1929
REPRESENTATIVE STEVENS asked if giving [management] of the
licensing process to the state rather than the federal
government would be less rigorous and less demanding.
MR. ABBOTT suggested FERC was not going to let the [state] "get
away with a whole lot," and that the [objective of a state-
operated program] is not only to try to make it an easier
process, but also to get the process back to the state where
[residents] deal with the problems, rather than somebody in
Washington [D.C.]. He mentioned that many of the permitting
functions and the tasks done by the state agencies will require
sending the data back to the FERC for its decision.
Number 2003
CHIP DENNERLEIN, Director, Division of Habitat and Restoration
Alaska Department of Fish & Game (ADF&G), testified. Mr.
Dennerlein noted he had prior involvement with FERC in some of
his former capacities. He said the position of ADF&G is
supportive and consistent with the administration's position and
has been expressed throughout the development of the
congressional enabling legislation. Mr. Dennerlein speculated
that [restructuring the program] could be a positive
contribution to energy needs, particularly, in rural Alaska. He
suggested that the state program can provide at least the [same]
level of fish and wildlife resource protection as the current
FERC process. Mr. Dennerlein advised the committee that that
qualifier is very important because most of these projects will
be in or adjacent to rural Alaskan communities, in stream and
river valleys that are close to these communities, and that
local and state residents utilize fish and wildlife resources in
these areas.
MR. DENNERLEIN said the FERC process allows ADF&G to work
effectively with these issues on a watershed basis to get the
information needed to make good decisions and in defining what
information will be needed, both in helping to define the scope
of information needed from applicants and other sources and in
getting FERC as an agent in helping obtain that information.
Mr. Dennerlein said this is not unlike, in some ways, the state
coastal management process for coastal projects, where the
[department] works on a broader scale with other resource
agencies and puts a package of standards together for a project.
He remarked, "ACMP is the way we step out of the streambed where
Title 16 gives us clear authority bank to bank."
Number 2169
MR. DENNERLEIN mentioned that a mechanism that would allow this
to be done beyond an ACMP process in the Interior, outside of
the coastal zone, was unknown or could not be foreseen at this
time. He talked about an example involving a major interchange
that the Department of Transportation and Public Facilities
(DOT&PF) is building along the Parks Highway and Glenn Highway
and the permitting that is going forward the following summer.
He mentioned that an anadromous fish stream exists in the area
and it is very clear the [department] has Title 16 authority,
but the real issue is beyond the defined stream banks and the
flooded wetlands; [the issue is] that the area in between is a
host to 6,000 juvenile coho salmon per acre that go to five
streams.
MR. DENNERLEIN said this is one of the highest producing coho-
rearing areas in Upper Cook Inlet and is a major resource-
protection interest and major public interest. He said the
department works on that issue through the ACMP; in the FERC
process, the department is also able to work on a watershed
basis without a statutory basis. He noted that the department
is unsure how to do that in this legislation and that it is one
of the things that needs to be investigated. Mr. Dennerlein
mentioned an example of a project that was built in Kodiak in
which the major wildlife concern was brown bears. He said the
project is operational but did require some creative solutions.
Number 2291
MR. DENNERLEIN cited False Creek as an example because it fits
in this range as a 3.5 megawatt [project] and is unique because
it is a project that is proposed in Glacier Bay National Park
and Preserve, in congressionally designated wilderness. He said
it may well receive a license because of some creative
solutions, including a land exchange. He noted that False Creek
is similar and that it involved locals, property owners,
spawning fish, subsistence, and so forth. Mr. Dennerlein
offered support for the concept but expressed concern about
statutory authority, the front-end ability of funding, and the
follow-through and re-licensing of these projects. He said this
is why there is such strong support for the report back to the
legislature so the legislature has a clear chance to see what
exactly this takes for the job to be done right, because if it
goes wrong, it will go wrong for a lot of people.
Number 2394
CO-CHAIR MASEK, upon determining no one else wished to testify,
closed public testimony.
CO-CHAIR SCALZI noted his belief that this is a good bill and
should be moved forward. He said after listening to testimony,
he felt the amendment would be unnecessary.
Number 2453
REPRESENTATIVE KERTTULA asked if the commission has the
authority to charge a fee for licensing.
MR. PETERSON, in response, said it is his understanding that the
intent of the federal enabling legislation is that the RCA would
charge user fees in the same manner it does currently. He said
there will be some startup costs to get the program under the
state's jurisdiction, but eventually the program will be paid
for by the fees from the hydro projects.
REPRESENTATIVE KERTTULA asked if the bill has to contain
specific language that allows the agency to receive funds.
MR. PETERSON said he didn't believe so and that it is going to
be part of the discussion between the RCA and FERC when this
program is established. He suggested that the bill only needs
to [contain language] giving the administration authority to
develop the regulations for this project because FERC is going
to have the ultimate veto on whether [the state] is able to do
it. Mr. Peterson suggested that the RCA would ask for the
authority to charge those fees and use those fees to pay for the
project, which is what FERC currently does. He said hopefully,
[it would be approved] as long as it's not in direct conflict
with the way FERC currently manages the program in the state.
Number 2572
CO-CHAIR SCALZI moved to report CSSB 140(FIN) out of committee
with individual recommendations and the accompanying fiscal
notes. There being no objection, CSSB 140(FIN) was reported
from the House Resources Standing Committee.
SB 356-GENERAL PERMIT FOR WATER/WASTE DISPOSAL
CO-CHAIR MASEK announced that the next order of business would
be SENATE BILL NO. 356 am, "An Act relating to the authority of
the Department of Environmental Conservation to issue general
and individual permits for waste disposal; and providing for an
effective date."
Number 2634
JOE BALASH, Staff to Senator Gene Therriault, Alaska State
Legislature, presented SB 356 on behalf of the Senate State
Affairs Standing Committee, sponsor, which Senator Therriault
chairs. Mr. Balash characterized SB 356 as a bill that
establishes procedures for developing and issuing general
permits in the Department of Environmental Conservation's (DEC),
Division of Air & Water Quality. He explained that a general
permit is used to regulate a class of operation that is fairly
standard and similar throughout (indisc.) achieved across the
industry. He remarked:
A very handy example ... is the washing down of a
cement truck. If you own a cement truck, there's no
way you're going to let the cement harden inside the
container. It needs to be washed out on a daily
basis.
However, in order to wash that truck out, you don't
want the dirty water ... to go into a stream or any
other environmentally sensitive area, and so there
would be some general considerations given to how that
is done.
A general permit would be issued by the department
that would say anybody washing out their cement truck
would have to avoid doing it next to a stream. That's
a fairly simplistic example but useful for
illustration purposes.
MR. BALASH turned attention to page 2, line 26, and he said the
word "cumulatively" replaced the original proposed language. He
explained that the change was made at the request of the Alaska
Conservation Voters (ACV), but was done with a little bit of
concern because the word "cumulative" is a somewhat "loaded"
term in the regulatory community. He said in connection with
NEPA [National Environmental Policy Act of 1969], there is a
cumulative impact analysis statement in which a given action
calls for the determination of the cumulative impacts. He said
that's not at all what this [language] is intended to imply, and
in no way is the sponsor asking that a cumulative impact
analysis be done.
MR. BALASH said the word is only speaking to discharges,
including discharges that are currently ongoing, in addition to
the discharges proposed to be added by this general permit. He
said Senator Therriault asked him to inform the committee of a
number of amendments that have come to light in the last 48
hours, including one to be brought [forward] by the Army. Mr.
Balash said while Senator Therriault is not unsympathetic to the
concerns of the Army or its interests, the balance in this bill
has been struck by a working group of industry, the regulating
community, and the regulating bodies in state government. The
balance is a fine one, he said, and it is preferred that it not
be upset by any amendments at this time.
Number 2876
COLONEL FRED LEHMAN, U.S. Army Alaska Garrison Commander,
testified. Colonel Lehman reported that on 04/12/02 a group of
national and local environmental organizations sued the U.S.
Army and the U.S. Department of Defense in an attempt to close
down Fort Richardson's only artillery training range in the
Eagle River Flats. The Eagle River Flats, he explained, is the
only location south of the Alaska Range where soldiers conduct
live-fire heavy-artillery training, and that the military has
used this range as an artillery range for the last 50 years.
Colonel Lehman said proper training is essential to the success
of military operation and is a matter of troop readiness. He
remarked about the young men and women who risk their lives to
uphold the values that [U.S. citizens] so strongly cherish and
how before sending soldiers into life-and-death situations [the
military has] a legal and moral obligation to provide them with
full training required to achieve the military's objectives and
also minimize the risk of [harm] to themselves and innocent
civilians.
COLONEL LEHMAN talked about having half a dozen soldiers in
Afghanistan in harm's way and how they trained on those ranges
at Fort Richardson in regular training exercises that included
the use of live ammunition, artillery explosives, high-caliber
weaponry, et cetera. He said it also means that large land
areas such as Eagle River Flats must remain available for such
exercises and that the Army's ability to continue live-fire
training is critical to Fort Richardson's national defense
mission. Colonel Lehman explained that because [Fort
Richardson] is the only location south of the Alaska Range where
soldiers conduct live-fire training, its reason for existence is
to train soldiers for wartime operations. He said Fort
Richardson's future is at risk and that the Army is engaging a
new round of BRAC [Base Realignment and Closure] closures
starting in 2005.
TAPE 02-39, SIDE B
Number 2995
COLONEL LEHMAN explained that the plaintiffs in the lawsuit
argue that the federal courts should force the Army to close the
Eagle River Flats range because the Army has not obtained a DEC
solid waste disposal permit under AS 46.03.100 for the firing of
artillery munitions on the Eagle River Flats. He explained that
DEC has never required a permit under AS 46.03.100 for munitions
fired on active military ranges. He said the artillery that the
Army is firing are explosive rounds, not solid waste. He
suggested this has been done in the U.S. for about 240 years.
and he talked about activities that meet AS 46.03.100 permit
requirements, such as wastewater discharge or the construction
of solid waste landfills.
COLONEL LEHMAN suggested that the plaintiff's attempt to force
DEC to regulate live-fire military training activities on active
military ranges sets an unacceptable precedent. If the effort
succeeds, he said, DEC may well be pressured into attempting to
regulate other critical aspects of training exercises, such as
the type of munitions fired, firing locations, firing times, and
other parameters. He suggested that DEC is not equipped to do
so and that the Army has no reason to believe that DEC wishes to
assume this role. It's a bad idea all around, he commented. He
noted that this bill deals with DEC's authority to issue
disposal permits under AS 46.03.100 and that the bill already
contains a list of exceptions.
Number 2919
COLONEL LEHMAN brought attention to a written amendment that
read [original punctuation provided]:
SB 356 am shall be amended to add a new section that
reads as follows:
Sec._. AS 46.03.100(d) is amended to read:
(d) This section does not apply to
(1) disposals subject to regulation under
AS 31.05.030(e)(2);[OR]
(2) injection projects permitted under AS
31.05.030(h)[.]; or
(3) discharges resulting from the firing or
other use of munitions in training activities
conducted on active ranges operated by the United
States Department of Defense or a United States
military agency.
COLONEL LEHMAN explained that the Army is requesting the
legislature to adopt a short, simple amendment that would add
solid waste disposal activities resulting from the firing of
munitions in training activities conducted on active military
ranges to the list of activities exempted from this permit
requirement. He said by enacting a straightforward amendment,
the legislature will help ensure that the Army Alaska remains
able to properly train those people in the armed forces and that
Fort Richardson retains an important role in the nation's
defense strategy.
Number 2879
REPRESENTATIVE STEVENS said he was surprised to learn that Army
bases have to comply with state regulations. He asked if that
is the case throughout the country.
COLONEL LEHMAN said no; this is the first lawsuit of this type.
He explained that on [04/25/02] the Army filed a Clean Water Act
permit with the EPA [Environmental Protection Agency]. He
reported that he had been in consultation with the EPA region's
head environment chief for the past six months, and he
indicated that the EPA is uncertain about both it and the
state's involvement in the issue. However, he said, this issue
has to be addressed because a lawsuit has been filed against the
military.
Number 2836
REPRESENTATIVE KERTTULA asked whether permits are normally
required under these kinds of circumstances or if this is an
unusual situation. She asked for more information on the court
case.
Number 2817
JOHN McDONAGH, Environmental Counsel, U.S. Army Alaska,
testified. Mr. McDonagh explained that the lawsuit against the
U.S. Army, the Department of Defense, and Secretary Donald
Rumsfeld in his official capacity was filed in the U.S. District
Court, District of Alaska, on April 12, 2002. He said the
plaintiffs in the lawsuit are the Alaska Community Action on
Toxics (ACAT), Cook Inlet Keeper; the Chickaloon Village
Traditional Council; two individual plaintiffs, Janet Daniels
and Richard Martin; and the Military Toxics Project, which is a
national environmental group that has filed other lawsuits
against the military's use of ranges at other places throughout
the country. He explained that the lawsuit has three separate
primary claims: The first deals with the Army's alleged failure
to have a Clean Water Act permit. The second deals with the
failure to have a AS 46.03.100 solid waste disposal permit for
the firing of munitions into the Eagle River Flats. The third
is a claim under CERCLA [Comprehensive Environmental Response,
Compensation, and Liability Act], commonly known as Superfund,
alleging that the Army needs to have a remedial investigation or
feasibility study (RI/FS) done for Fort Richardson on the Eagle
River Flats.
MR. McDONAGH said this is very interesting because a CERCLA
RI/FS was conducted on Eagle River Flats and found only one
contaminant of concern - white phosphorus, which affects
waterfowl. That was addressed through a record of decision
signed by the EPA and DEC, and that remedy for white phosphorus
was implemented beginning a couple of years ago, he explained.
Mr. McDonagh reported that the record on decision also concluded
that no other contaminants of concern exist with respect to
Eagle River Flats. He said that's not the Army's conclusion;
that's EPA and DEC's conclusion as set forth in CERCLA.
Needless to say, the Army is very concerned about the ability to
continue to train for the reasons that Colonel Lehman stated, he
said. Mr. McDonagh said this is one of the highest profile
lawsuits that the Army has, and that the military has nationwide
implications on an issue it refers to as encroachment. He
explained that this is a major issue that impacts the ability to
train; impacts the future viability of Fort Richardson as a
training facility; it does potentially impact training
facilities at Fort Greely and Fort Wainwright, which is why the
Army is asking for the legislature's help.
Number 2669
REPRESENTATIVE KERTTULA asked Mr. McDonagh if the Army had any
type of restraining order in place or if training is allowed to
continue until the lawsuit is decided.
MR. McDONAGH, in response, explained that the complaint, as
filed, requests an injunctive relief prohibiting the Army from
continuing to conduct the activities at the Eagle River Flats.
However, he said, there has been no preliminary injunction
motion filed, so currently there is no injunction in place. Mr.
McDonagh clarified that because of concerns over wildlife and
the environment, the Army never fires at the Eagle River Flats
over the summer months, so there would be no need to seek an
injunction at the present period of time.
COLONEL LEHMAN said correct; the Army's SOPs [standard operating
procedures] require that there must be six inches of ice before
firing commences.
Number 2617
REPRESENTATIVE GREEN asked how long the arsenal had been used in
that area.
MR. McDONAGH, in response, said the Army has used the Eagle
River Flats since the 1940s and it was a major range in World
War II; it was also used throughout the Korean War and right up
to the present. Mr. McDonagh said the Army discovered white
phosphorus in the early 1980s, and when it was discovered to be
a problem, the Army ceased using it in 1990, but has continued
to use artillery at the range for practice.
CO-CHAIR MASEK asked if the Army has ever applied for a solid
waste permit.
MR. McDONAGH, in response, said no, the position taken by [DEC]
is that it has never requested the Army to [apply for a permit],
and the Army's position has always been that this is not solid
waste and is not subject to the permitting requirement. He said
he was informed that consistent with past practice, DEC has no
desire to regulate in this area and the Army has no desire to
have DEC regulate in this area. Mr. McDonagh remarked, "So, all
we're asking for is the status quo (indisc.)." The only reason
this is an issue before this committee is not because of
anything anyone in the Army is doing differently or anything
that the agency is doing differently; it is because it has been
raised as a claim by the plaintiffs in this lawsuit in an
attempt to shut [the Army's use of the Eagle River Flats for
training] down, he said.
Number 2544
REPRESENTATIVE STEVENS remarked, "I think of World War II and
when the Japanese had taken Attu and Kiska and we attacked them
to take them back, if these people had been around, you would
have been required to have ... permission before you could have
launched the attack; ... the whole thing is just bizarre." He
said it seems to him that Alaska's currently at the front on
this issue, and he suggested that there are a lot more bases
around the United States that use a lot more artillery than is
used in Alaska. He speculated that there must be a lot more
sites that are in worse condition than Alaska.
COLONEL LEHMAN, in response, said this will be a test case.
MR. McDONAGH said correct; this is an issue around the country
in many different ways. He mentioned a briefing he had attended
in the previous week in which some Marines from Camp Pendleton
explained what it's like to have 23 miles of beach and only be
able to use about a half mile of that beach. He said the
Marines can't even do a beach-to-beach diversion anymore and
that when they do hit the beach, instead of digging foxholes,
they have to lay out tape to mark where the foxhole would be
because they're not allowed to dig on that beach; then they go
back to the barracks and practice digging. He said if the issue
is called encroachment, it's one of the largest issues that the
U.S. military has facing it now. Mr. McDonagh remarked, "It's
come home to rest here in our little case in our military base
here in Alaska, and that's why we're here."
Number 2467
REPRESENTATIVE KERTTULA asked what the problem is with white
phosphorus.
COLONEL LEHMAN, in response, said it is used for a burning and
smoke agent and requires air for it to oxidize and go off. If
it stays under the water, it will stay in pellet form, but it
will oxidize and kill waterfowl if ingested. He explained that
the Army recognized the issue and subsequently spent millions of
dollars remediating it in a very public way such as inviting
groups out and asking for participation for quarterly
restoration advisory boards, et cetera.
REPRESENTATIVE KERTTULA asked whether local shooting ranges are
required to obtain permits to be able to use munitions for
shooting.
MR. McDONAGH said to his knowledge, solid waste disposal permits
are not required in Alaska for any other municipal ranges.
COLONEL LEHMAN clarified that this [lawsuit] has a community
impact that affects others that use or train on this range,
including: the U.S. National Guard, the Alaska State Troopers,
the Anchorage Police Department, the Federal Bureau of
Investigation, and private citizens.
REPRESENTATIVE KERTTULA said the court case should decide this
issue, and she talked about the possibility of an injunction.
She asked how onerous it is to go through a DEC permitting
process to get a permit.
MR. McDONAGH said the Army may be facing an injunction, but is
not facing one at this particular moment in time. He said the
notion that AS 46.03.100 would be expanded to cover these
activities and therefore potentially subject very detailed
military issues to the purview of an agency that admittedly has
no background or interest in this particular area is both
dangerous and unwise, in the Army's view.
COLONEL LEHMAN said when the military starts unexpected training
with high artillery ammunition, there is a reason for it, and
[the military] doesn't normally want to disclose why it's being
done, who is being trained, or what the purposes are.
Number 2298
REPRESENTATIVE STEVENS asked whether it would be in the purview
of Congress to exempt national defense exercises from state
management and control.
COLONEL LEHMAN said the issue is currently being addressed at
the executive level. He said this is a three-part [issue], and
one part is at the state level.
MR. McDONAGH said the Army is here [before the legislature]
because it has a specific state issue before it and a specific
lawsuit brought against a facility within the state. He said
this broader issue of encroachment is receiving very significant
attention at the national level. Unfortunately, he said, none
of that attention will come in time to help the Army at the
Eagle River Flats.
Number 2254
REPRESENTATIVE GREEN suggested that it is ironic that this
activity has been done for over 60 years and it seems incredible
that millions of dollars are being spent on national defense,
but there is a concern that maybe our troops shouldn't be
training to utilize arsenal. He said it doesn't make sense to
him.
Number 2186
SUSAN SCHRADER, Alaska Conservation Voters (ACV), testified.
Ms. Schrader said ACV does appreciate and agree with DEC that
there are certain activities that are very appropriately managed
with a general permit, and ACV does not have a problem with most
of the general permits that the department currently has. She
said ACV's understanding is that the bill will put some
clarifying language into statute that addresses DEC's authority
to issue general permits. She expressed concern that the bill
is ambiguous and overly broad, and because of that, is open to
abuse.
MS. SCHRADER said this bill goes far beyond what the department
needs to address for the washing out of cement trucks or high
school carwashes, which are not activities that are necessarily
of concern. She suggested having a bill that puts some
sidebars, structure, and limits on what can be covered by a
general permit.
MS. SCHRADER indicated that ACV is opposed to the bill because
of previously expressed concerns. Ms. Schrader said she was
just made aware of the military situation and is not prepared to
speak on the lawsuit, but that it is her observation that
[Colonel Lehman and Mr. McDonagh] are asking the legislature to
try this case right now in the form of this amendment and that
she thought that is totally unfair and truly the antithesis of
the government process. Ms. Schrader suggested that perhaps
members of the committee would like the opportunity to hear from
those other parties involved in this litigation and the reasons
this litigation was brought forward and some of the efforts that
the environmental groups have gone through to work with the
military to address the issues before they were forced to bring
litigation forward. She remarked, "I truly think it is
inappropriate for the committee to sit here as the judge of the
merits of litigation that I doubt any of us have had a chance to
look at ...."
CO-CHAIR MASEK reminded Ms. Schrader that the committee is
deliberating a bill, not acting as judges.
MS. SCHRADER suggested it is much more appropriate to address
the concerns through litigation and let the legal process
determine the merits of the plaintiff's case. She said in 1994,
Fort Richardson was listed as a Superfund site and that because
of military activities, there are 27,000 toxic "hot spots"
around the country. Ms. Schrader noted the Chickaloon tribe as
having concerns for their health and well-being, and she
suggested she herself would be concerned if she owned property
near one of these sites. She suggested the committee take a
look at the sincere concerns of folks who don't want their
ground water contaminated and don't want to have to depend on
living in an area that has potentially been polluted by military
activities.
Number 1915
MS. SCHRADER mentioned her sincere concerns about what has gone
on in the country and around the world and about military
issues, but she suggested that giving the military an exemption
from all environmental laws that are here to protect public
health is not in anybody's best interest. She said she finds it
a little ironic that the military is doing these exercises to
train its personnel to protect the resources and at the same
time, through its very activities - the request through federal
legislation and this amendment - [wishes to] be exempted from
those very laws that protect the water quality.
CO-CHAIR SCALZI talked about his experience at the local
shooting range and he said he wondered why the U.S. military is
targeted as the environmental "test spot" of such activity when
it is occurring in local communities throughout the U.S. He
suggested if the environmental community had real concerns about
pollutants, the issue would initially be addressed at a local
level.
Number 1780
MS. SCHRADER brought attention to the fact that there are
hundreds of environmental groups, from local groups to
international groups, that do their work at all levels, and she
said she cannot speak to the plaintiffs in this case or whether
they have worked on other local issues. Ms. Schrader noted that
she personally had the experience of working on an issue
surrounding the local gun range at Montana Creek, and she
suggested the potential contamination of that soil and ground
water with lead and other heavy metals from years of use is
quite high. She also mentioned that DEC had indicated it would
be ideal to regulate those sites "in the perfect world." She
suggested that in that scenario, DEC would have the ability to
regulate those sites and work to ensure that those toxic areas
are cleaned up. Ms. Schrader suggested housing developments are
encroaching on the gun range at Montana Creek and that the
ground water may be contaminated.
CO-CHAIR SCALZI suggested that large targets such as the
military or factory trawlers are "picked on," rather than local
targets, and have the potential to impact national security or
have large economic impacts to Alaska. He said he was amazed at
what the Cook Inlet Keeper was involved in with regard to the
lawsuit. He spoke to Ms. Schrader's suggestion that the Army is
asking the legislature to try the case, and he asked why the
environmental community didn't come to the legislature first to
get help. Going right to the courts is the "first line of
attack" rather than settling the [issue] through local
legislation, he suggested. He asked Ms. Schrader if she thought
that would have been a better method rather than going right to
the military and filing a lawsuit.
Number 1617
MS. SCHRADER said it is her understanding that the groups
involved in [the lawsuit] have worked with the military for
several years to try to cooperatively come to some alternative
arrangements.
CO-CHAIR SCALZI pointed out that this is the first that the
legislature has heard of this issue.
MS. SCHRADER noted that she had brought many environmental
issues and concerns forward to the legislature over the years,
and that it is a very frustrating proposition. She mentioned
the six amendments that had she brought forward to the sponsor
of this bill with the intention of helping to clarify the bill,
and the fact that every one of those amendments had been turned
down. She suggested that ACV has tried in sincere honesty to
work through the legislative process and that this is not an
"easy game" for an environmentalist to play with the
legislature. She maintained that there are two sides to every
story that and only one side of the story is being heard.
Number 1517
TOM CHAPPLE, Director, Division of Air and Water Quality,
Department of Environmental Conservation, testified. Mr.
Chapple said for about the last three and a half years, DEC has
been working to rebuild its wastewater permitting program and
had done so after assembling a stakeholder group composed of the
resource development community, local government, environmental
organizations, citizens' organizations such as the RCA, and
federal and other state agencies. He said that work resulted in
10 basic recommendations from the group and that this bill is an
outgrowth of a recommendation that the department should use
more general permits in overseeing certain activities and in
mitigating the impacts of discharges.
MR. CHAPPLE said the bill reflects a delicate balance among the
varied groups and that not all parties agreed that general
permits should be aggressively pursued. There was some
reluctance, but a majority of the members of the work group did
agree, he noted. He explained that it is the department's
belief that general permits are useful and appropriate when the
risk to the environment is low or when there is a common
treatment practice that will mitigate that risk. It is
important when general permits are developed, he explained, that
the public has an opportunity to comment on the development of
that [permit], as well as to know what activities are permitted
under a general permit; a general permit could apply to a number
of operations, so knowing where those operations are is
important. Mr. Chapple noted that this bill accomplishes those
two primary objectives for the department. He said the
department supports the bill and believes it is a positive bill
that it would like to see move forward.
Number 1377
MR. CHAPPLE called attention to the subject of the Eagle River
Flats, and he said the department has never requested that a
permit be required for solid waste or wastewater discharge and
has no intention or desire to impede the training activities.
Obviously, he said, that's an important function. He noted that
the bill is the result of an ongoing lawsuit and, paraphrasing
from AS 46.03.900, he explained that the definition of solid
waste basically means all unwanted, abandoned, or discarded
material. He said in regard to rifle ranges or munitions
ranges, the department's position is that it is not abandoned
waste until the site is no longer active. When the site is no
longer active and is intended to be closed, it could be handled
as solid waste if that's appropriate, he said. If there is
contamination of the ground water or [other] water, then it
would be handled as a contaminated site cleanup. He said the
department has never implemented [such permitting] or suggested
that a permit would be required. It is the department's belief
that the operative language the department has used, which is
part of the state's precedent for making those decisions, would
be beneficial to the court when this case is heard, as well as
the definition that the department is using, he explained.
MR. CHAPPLE said the department doesn't view that a change in
the law is necessary to accomplish what the Army might be
looking for and that the court will hear how the state has made
decisions in the past and what it rests [its decisions on]. He
suggested to the committee that the issue being heard is really
a different issue than the substance of the bill that is before
them, even though the title change would allow this change. Mr.
Chapple said the bill is structured to talk about general
permits and has been brought together by a number of people of
very diverse interests to strike a balance. He said if the bill
is amended to include the Eagle River Flats issue, it will bring
with it the other parties that are a part of that lawsuit and
the anxiety and the issues associated with that suit. Mr.
Chapple said the department is concerned and would prefer that
the bill stay simple and be completed the way it is.
Number 1171
REPRESENTATIVE GREEN asked whether an environmental review would
be required if a new rifle range were being established.
MR. CHAPPLE noted that he doesn't manage the solid waste
program, and he said he believes the answer is no, the
department does not permit and would not require a permit for
any rifle range, but local zoning requirements might come into
play.
Number 1098
REPRESENTATIVE KERTTULA asked if the Army is currently required
to live by federal and environmental laws.
MR. CHAPPLE said he had been doing environmental work for over
20 years and had seen a change in the laws when sovereign
immunity was asserted by the U.S. Department of Defense a number
of years ago and exempted from environmental laws. Those laws
have changed over the last 15 years, and the Department of
Defense is generally obligated to meet state and national
environmental laws. He said there is currently a discussion on
a national scale about the issue of sovereign immunity and
whether certain actions should be exempted. In fact, he said,
the commissioner of DEC is currently at a meeting with the
commissioners of all environmental agencies of the state, and
some of the discussion is focusing on the various aspects of the
sovereign immunity tasks, what would be exempted, and certain
proposals that are out. Mr. Chapple said this issue has come
forth as an adjustment in state law, but is that adjustment
going to be needed in every other state law? Mr. Chapple
suggested that the issue needs to be addressed on a national
scale and that national environmental laws need to be looked at
to try to strike the right balance.
Number 0945
MATT GILL, Staff to Representative Eldon Mulder, Alaska State
Legislature, testified. Mr. Gill said Representative Mulder
currently represents Fort Richardson Army base and supports any
amendments that would clarify the Army's position regarding the
use of the Eagle River Flats artillery training range.
Number 0875
CO-CHAIR MASEK, upon determining no one else wished to testify,
closed public testimony.
MR. BALASH said he didn't think the sponsor's position would
change and that there are a number of issues surrounding the
lawsuit. He indicated one of the main issues is whether this is
the only place in statute that needs to be changed, and he said
in the idea of good government and evenhandedness, Ms. Schrader
pointed out that there are a number of other individuals that
would be more than happy to provide testimony and information on
this issue if they were given the opportunity. Mr. Balash said
Senator Therriault has expressed to him that he would be happy
to support the introduction and passage of a separate piece of
legislation that would allow this issue to be addressed by the
legislature, would afford the public an opportunity to look at
the issue comprehensively, and also would allow the department
to perhaps take a more complete look at the position of the
state and where these types of issues should be addressed in
state statute.
Number 0700
COLONEL LEHMAN said he thought it was a paramount issue. He
talked about the BRAC closures and the need for the artillery
range to train. He said the Army is poised to put a brand new
formation called a IBCT [Interim Brigade Combat Team] that is
going to bring over $1 billion in new construction into the
state. He said he didn't think the Army is poised to invest
that much money if it will not be allowed to train here and that
it will probably move that element to somewhere else.
COLONEL LEHMAN said it would help the [Army's] cause to get a
piece of legislation pushed through. He said he was uncertain
about the success of the proposed amendment, but he wanted to
ensure that the legislature had the opportunity to express what
it would like the military's function and performance to be in
the state of Alaska. He remarked, "If the lawsuit says we file,
we will file; it just puts more burdens on the military to
perform their mission." He said he can understand the position
of Senator Therriault and his staff.
COLONEL LEHMAN said he never thought it was a requirement to
have special permits to fire normally assigned weapons that
Congress bought the military to train and use to defend this
land or that the [Army] would have to ask to fire those weapons
on lands that were set aside for that purpose. He said he is
willing to work with the legislature and the sponsor of the
bill, and he closed by saying that the Army just wanted the
opportunity for the legislature to hear its story.
MR. McDONAGH said the Army is not asking the legislature to try
the case; it is asking the legislature to confirm the present,
past, and intended future practices of DEC so as not to engage
itself in regulating military training exercises and allowing
those exercises to be precluded at a facility that's essential
for training its soldiers.
REPRESENTATIVE GREEN expressed concern about time constraints
that would hinder passage of new legislation, and the urgency of
the military to address this issue. He mentioned DEC's
disinterest in permitting rifle ranges and the artillery that
the military uses for training, and the fact that [the
artillery] explode and don't leave the same residue found at a
rifle range. He talked about including the proposed amendment
so that the military can continue training. He indicated he
doesn't foresee it upsetting the delicate balance of the bill.
The committee took an at-ease from 3:25 p.m. to 3:28 p.m.
Number 0361
CO-CHAIR MASEK noted that the committee would hold SB 356 am for
further review and the opportunity to work with the sponsor to
try to create a workable amendment.
Number 0268
REPRESENTATIVE STEVENS mentioned other types of military
artillery use and questioned whether it is related and should
also be looked at.
CO-CHAIR MASEK suggested that the subject be discussed with the
bill's sponsor and the drafter of the proposed amendment.
[SB 356 am was held over.]
ADJOURNMENT
There being no further business before the committee, the House
Resources Standing Committee meeting was adjourned at 3:29 p.m.
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