Legislature(2003 - 2004)
04/05/2004 01:27 PM House RES
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* first hearing in first committee of referral
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+ 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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