Legislature(2009 - 2010)BARNES 124
03/25/2009 01:00 PM House RESOURCES
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| HB134 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
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| += | HB 134 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE RESOURCES STANDING COMMITTEE
March 25, 2009
1:02 p.m.
MEMBERS PRESENT
Representative Craig Johnson, Co-Chair
Representative Mark Neuman, Co-Chair
Representative Bryce Edgmon
Representative Kurt Olson
Representative Paul Seaton
Representative Peggy Wilson
Representative David Guttenberg
Representative Scott Kawasaki
Representative Chris Tuck
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 134
"An Act relating to the terms and conditions of commercial
vessel permits for the discharge of graywater, treated sewage,
and other waste water; and providing for an effective date."
- HEARD AND HELD
OVERVIEW(S):
LARGE MINE PERMIT PROCESS
- OVERVIEW CANCELED
BRIEFING ON THE ENDANGERED SPECIES ACT
- OVERVIEW CANCELED
PREVIOUS COMMITTEE ACTION
BILL: HB 134
SHORT TITLE: CRUISE SHIP WASTEWATER DISCHARGE PERMITS
SPONSOR(s): REPRESENTATIVE(s) HARRIS
02/13/09 (H) READ THE FIRST TIME - REFERRALS
02/13/09 (H) CRA, RES
02/17/09 (H) CRA AT 8:00 AM BARNES 124
02/17/09 (H) Moved CSHB 134(CRA) Out of Committee
02/17/09 (H) MINUTE(CRA)
02/18/09 (H) CRA RPT CS(CRA) NT 5DP
02/18/09 (H) DP: HARRIS, MILLETT, KELLER, HERRON,
MUNOZ
03/02/09 (H) RES AT 1:00 PM BARNES 124
03/02/09 (H) Heard & Held
03/02/09 (H) MINUTE(RES)
03/16/09 (H) RES AT 1:00 PM BARNES 124
03/16/09 (H) Heard & Held
03/16/09 (H) MINUTE(RES)
03/25/09 (H) RES AT 1:00 PM BARNES 124
WITNESS REGISTER
REPRESENTATIVE JOHN HARRIS
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: As sponsor of HB 134, presented an
amendment for the committee's consideration.
LARRY HARTIG, Commissioner
Department of Environmental Conservation
Juneau, Alaska
POSITION STATEMENT: During hearing on HB 134, provided an
overview of the sponsor's amendment and answered questions.
LYNN TOMICH KENT, Director
Division of Water
Department of Environmental Conservation
Anchorage, Alaska
POSITION STATEMENT: Answered questions regarding HB 134.
ACTION NARRATIVE
1:01:59 PM
CO-CHAIR MARK NEUMAN called the House Resources Standing
Committee meeting to order at 1:02 p.m. Representatives Neuman,
Johnson, Guttenberg, Kawasaki, Tuck, and Olson were present at
the call to order. Representatives Wilson, Edgmon, and Seaton
arrived as the meeting was in progress.
HB 134-CRUISE SHIP WASTEWATER DISCHARGE PERMITS
1:02:48 PM
CO-CHAIR NEUMAN announced that the first order of business would
be HOUSE BILL NO. 134, "An Act relating to the terms and
conditions of commercial vessel permits for the discharge of
graywater, treated sewage, and other waste water; and providing
for an effective date." [Before the committee was CSHB
134(CRA).]
CO-CHAIR NEUMAN said much hard work was done over the past two
weeks to come up with a solution that everyone could work with.
On behalf of Representative Harris, he offered Amendment 3,
labeled 26-LS0570\E.6, Bullard, 3/25/09, which read [original
punctuation provided]:
Page 1, line 2, following "water;":
Insert "establishing a science advisory panel on
wastewater treatment in the Department of
Environmental Conservation;"
Page 1, following line 4:
Insert a new bill section to read:
"* Section 1. The uncodified law of the State of
Alaska is amended by adding a new section to read:
LEGISLATIVE INTENT. It is the intent of the
legislature that the minimum standards for the terms
and conditions of wastewater discharge permits for
large commercial passenger vessels meet all applicable
state and federal effluent limits or standards,
including Alaska Water Quality Standards, governing
pollution at the point of discharge if the Department
of Environmental Conservation, in consultation with
its science advisory panel on wastewater treatment,
determines that compliance with those limits or
standards is technologically and economically
feasible."
Page 1, line 5:
Delete "Section 1"
Insert "Sec. 2"
Page 1, line 11:
Delete "[AT THE POINT OF DISCHARGE]"
Insert "at the point of discharge, except as
provided in 46.03.462(e)."
Page 2, line 9:
Delete all material and insert:
"* Sec. 3. AS 46.03.462 is amended by adding new
subsections to read:
(e) When issuing, reissuing, renewing or
modifying a permit required under (a)(1) of this
section, the department may include effluent limits or
standards less stringent than those required under
(b)(1) of this section if the department finds that a
permittee is using methods of pollution prevention,
control and treatment found by the department to be
the most effective, technologically and economically
feasible in controlling all wastes and other
substances in the discharge but is unable to achieve
compliance with Alaska Water Quality Standards at the
point of discharge.
(f) In developing an effluent limit or standard
under (e) of this section, the department shall
(1) require use of methods of pollution
prevention, control and treatment found by the
department to be the most effective, technologically
economically feasible; and
(2) apply all other applicable provisions
of state law and this section.
(g) When reissuing, renewing or modifying a
permit required under this section that was issued
after the effective date of this bill section, the
department may not include effluent limits or
standards less stringent than the comparable effluent
limitations in a previous permit issued under this
section.
(h) Nothing in this section shall be construed
to limit the authority of the department to
(1) restrict the areas in which discharges
permitted under this section may occur; or
(2) impose additional terms and conditions
on the manner in which discharges permitted under this
section may be made in a specific area.
* Sec. 4. AS 46.03 is amended by adding a new
section to read:
Sec. 46.03.464 Advisory panel on wastewater
treatment; commissioner's reports to the legislature.
(a) A science advisory panel is established in the
department. The panel consists of members selected by
the commissioner. Members of the panel serve without
compensation but are entitled to transportation
expenses and per diem as authorized for members of
boards and commissions under AS 39.20.180.
(b) The panel shall
(1) meet at the call of the commissioner
and give public notice of meetings of the panel as
required under AS 44.62.310 and 44.62.312;
(2) hold one or more public conferences or
workshops; and
(3) assist and advise the commissioner in
conducting the analyses and preparing the reports
required in (c) and (d) of this section.
(c) On or before January 1, 2012, the
commissioner, in consultation with the panel, shall
provide a preliminary report to the legislature that
summarizes
(1) methods of pollution prevention,
control and treatment in use and the level of effluent
quality achieved by commercial passenger vessels;
(2) additional methods of pollution
prevention, control and treatment that could be
employed to provide the most effective,
technologically and economically feasible measures to
control all wastes and other substances in the
discharge; and
(3) the environmental benefit and cost of
implementing additional methods of pollution
prevention, control and treatment identified in (c)(2)
of this section.
(d) On or before January 1, 2014, the
commissioner, in consultation with the panel, shall
provide a final report to the legislature that
includes the topics identified in (c)(1) - (3) of this
section.
* Sec. 5. AS 46.03.465 is amended by adding a new
subsection to read:
(h) On request, the owner or operator of a
commercial passenger vessel discharging wastewater
under AS 46.03.462(b) shall provide the department
with information relating to wastewater treatment,
pollution avoidance, and pollution reduction measures
used on the vessel, including testing and evaluation
procedures and economic and technical feasibility
analyses.
* Sec. 6. AS 46.03.464 is repealed.
* Sec. 7. Section 6 of this Act takes effect
June 1, 2014.
* Sec. 8. Sections 1 through 5 of this Act take
effect immediately under AS 01.10.070(c)."
CO-CHAIR JOHNSON objected for discussion purposes.
1:03:28 PM
REPRESENTATIVE JOHN HARRIS, Alaska State Legislature, sponsor of
HB 134, explained that Amendment 3 was developed in consort with
the Department of Environmental Conservation, as well as in
consultation with the governor and the Department of Law.
Amendment 3 would ensure through statute that there is no
backsliding by the cruise ship industry and would encourage
ongoing development of science.
REPRESENTATIVE HARRIS said HB 134 does not advocate for or
tolerate a worsening of the current water quality standards for
cruise ships. Rather, it advocates for more stringent
regulation up to the 2010 standard when those technologies
become available and can be economically installed on board the
ships. Amendment 3 gets the state where it wants to go. Both
the cruise ship industry and the Department of Environmental
Conservation would be in compliance with the statute, and the
ships can stay in port longer, allowing crews and passengers to
spend money in the port communities. He urged that HB 134 be
amended and moved out of committee today.
1:07:34 PM
CO-CHAIR NEUMAN read from a March 19, 2009, letter written to
Representative Harris by Governor Palin. The full text of the
letter is as follows [original punctuation provided]:
Thank you for your letter requesting my help
clarifying expectations for the Department of
Environmental Conservation (DEC) should your
legislation, known as HB 134, pass the Legislature and
become law. I share your confidence index's abilities
and efforts, and agree that DEC officials are working
hard to implement the best treatment technology as
quickly as possible.
I would like to assure you, and anyone else
interested in this issue, that in the event that this
legislation passes, DEC will retain the ability to
preserve and protect water quality through their
existing permitting authority. While discharge
permits could be modified to include mixing zones
where appropriate, cruise ships would still have to
obtain and comply with permits that will fully protect
aquatic life and other uses of Alaska's waters.
Permits could include a variety of conditions to
ensure water quality is protected.
DEC would retain the authority to prevent
backsliding by reassuring that any standards currently
achieved must continue to be met and would have the
ability to mandate that the best and most feasible
treatment technology be used. As you may know, DEC is
aware of no technologies currently available for
widespread shipboard use that would allow standards to
be met. From DEC's technology conference held last
month, it appears there are new waste reduction and
treatment options that could become commercially
available in the future. We want to encourage
improvement, and continue to explore these options.
I appreciate your interest and efforts in this
issue and hope this information is helpful as you
continue hearings on this legislation.
1:09:10 PM
REPRESENTATIVE SEATON inquired whether Amendment 2 [which he
offered on March 16, 2009] was still on the table.
CO-CHAIR NEUMAN said Amendment 2 had been tabled, but that it
could be addressed, pulled, or left as tabled.
REPRESENTATIVE SEATON agreed to leave Amendment 2 tabled.
CO-CHAIR NEUMAN noted that DEC Commissioner Hartig has worked
hard on Amendment 3 and supports the amendment.
1:10:07 PM
LARRY HARTIG, Commissioner, Department of Environmental
Conservation, thanked the committee and Representative Harris
for the opportunity to work on possible amendments to HB 134.
Amendment 3 addresses some of the issues that DEC had, he said,
and is hopefully something that everyone can agree on.
COMMISSIONER HARTIG recognized that under the 2006 Alaska Cruise
Ship Initiative voters called for a higher level of treatment.
However, he explained, at DEC's February 2009 technology
conference it was determined that the technology for vessels is
not yet there for meeting all state water quality standards in
the pipe. It was therefore recognized that there needed to be
some kind of relief to the requirements of the initiative that
had been embodied in state law. The question was how to provide
that relief, and over what time period, and how to proceed, and
this is the substance of the amended bill. He said HB 134
retains the at-the-point-of-discharge requirement, but in the
interim vessels would be allowed relief from the standard if DEC
finds that the most effective technology is being employed that
is both technically and economically feasible.
1:12:11 PM
COMMISSIONER HARTIG explained that in addition to the minimum
treatment standard, Amendment 3 would create a science advisory
panel. This panel would work with DEC to review both on-vessel
and on-shore technologies that would provide a higher level of
treatment. The panel would provide an interim report to the
legislature in two years and a final report in four years as to
what advances in technology had been achieved during that period
of time. These reports and input would allow DEC to apply the
latest technology and standards when the permit for cruise ships
next comes up for renewal. Thus, if cruise ships could not meet
the at-the-point-of-discharge standard for certain pollutants,
DEC would know what technology is available and could implement
that into the permit.
COMMISSIONER HARTIG noted that a technology-forcing element
already exists in DEC's powers, so it is not included in the
amended bill. If a permittee cannot achieve the effluent limits
in a permit, DEC can require a compliance schedule with specific
steps and deadlines by which a permittee must install new
equipment or take other action to reduce pollution. If HB 134
passes, DEC will evaluate the technology information from the
conference and the source reduction evaluation reports and
monthly discharge monitoring reports filed by the cruise ship
companies to determine what the technology standard would be in
the new modified permit. The department would then develop
compliance schedules for those ships that are not already
achieving the standards, thus implementing technology-forcing
vessel by vessel. At the end of that period, the four year
final report would be complete and DEC would see whether the
standard could be raised again five years from now when the
permit comes up for renewal.
COMMISSIONER HARTIG pointed out that Amendment 3 has an anti-
backsliding provision that prevents DEC from issuing a permit
that loosens the standard. Given the aforementioned technology-
forcing, this means the standard can only get tighter and
tighter over the permit cycles.
1:15:45 PM
CO-CHAIR NEUMAN inquired whether Commissioner Hartig believes
that Alaska's waters and fisheries would be protected under
Amendment 3.
COMMISSIONER HARTIG answered yes.
COMMISSIONER HARTIG, in response to Co-Chair Johnson, said DEC
envisions the science advisory panel being made up of some
government members such as the U.S. Coast Guard and
Environmental Protection Agency (EPA). The U.S. Coast Guard
currently regulates treatment systems on vessels and EPA
regulates certain discharges that are covered by this permit.
The department also envisions members from the public sector,
primarily people with an expertise in water treatment as it
relates to vessels or on shore where vessels can use treatment,
chemical and environmental engineers, marine architects and
others who understand the modification of vessels, key
stakeholders with an interest and expertise in this issue, and
operational people. It is important for the panel to have
technical people as well as people who understand the
implementation issues, he said.
COMMISSIONER HARTIG, in further response to Co-Chair Johnson,
explained that vessel treatment systems is a fairly narrow area,
so there would be few experts available for such a long time
period. Thus, a large group would be needed for the panel
because only half the members would likely be able to show up
for each meeting. He said he therefore anticipates that the
panel would have eight to twelve members.
1:19:12 PM
CO-CHAIR NEUMAN surmised that the DEC commissioner would decide
the panel members.
COMMISSIONER HARTIG responded correct.
REPRESENTATIVE WILSON inquired whether having a science advisory
panel would change the zero fiscal note.
COMMISSIONER HARTIG said there is no fiscal note because this is
already in DEC's base budget. The department has been relying
on the cruise ship registration fees to fund its current
studies, so these fees would be used to support the panel and
the additional studies that DEC has in mind.
1:20:10 PM
REPRESENTATIVE WILSON requested Commissioner Hartig to discuss
the term "economically feasible" as written on page 1, line 15,
in Amendment 3. She expressed her concern that this could be a
loophole.
COMMISSIONER HARTIG answered that this is not unique and is the
standard that DEC expects any industry to be held to. He said
he envisions getting everyone together in the room - vendors,
academics, EPA, U.S. Coast Guard, and so forth - to get their
thoughts. The language says it has to be the "most effective"
technology that is technologically and economically feasible.
The department would then use its best professional judgment to
set the standard. For those that cannot immediately meet that
standard, DEC would use its existing authorities to set up a
schedule for attainment under the permit.
1:22:21 PM
REPRESENTATIVE WILSON remarked that the date of January 1, 2014,
on page 3, line 20, of Amendment 3, seems like a long time [for
receipt of the final report by the legislature]. She asked
whether the timeline could instead be every other year.
CO-CHAIR NEUMAN pointed out that page 3, line 9, of Amendment 3
requires a preliminary report be provided to the legislature by
January 1, 2012.
COMMISSIONER HARTIG added that DEC will be issuing a report this
April from the [February 2009] technology conference, so it is
pretty much a two-year cycle. It was reported at this
conference that there may be some new technologies, one in
particular that would address ammonia, but that these are two
years out; so this is one reason why the department picked two
year intervals. The second two-year interval would end one year
prior to the end of the next normal five-year permit cycle.
1:24:07 PM
REPRESENTATIVE SEATON inquired how DEC determines what is
economically feasible from an agency standpoint, as opposed to
what the cruise ships would say is economically feasible.
COMMISSIONER HARTIG explained that under the Clean Water Act,
the EPA sets regulations for what technology should be able to
achieve for different industries. However, EPA has not done
that for the cruise ship industry. Normally, DEC looks to the
EPA technology requirements, called effluent limitation
guidelines, to see what EPA prescribes for a particular industry
sector and then relies on that. Therefore, since EPA has not
set a standard for this industry, DEC must rely on its best
professional judgment.
1:26:43 PM
REPRESENTATIVE SEATON asked whether DEC's science advisor will
be determining what is economically feasible or what is
technologically feasible.
COMMISSIONER HARTIG responded that he does not know that those
two can be split apart. He reiterated that this is not unique,
and the cruise ships are not being treated differently or given
a break because the term economically is included in the
language. These sorts of evaluations apply to all the
industries in the state. The department looks at the various
technologies and evaluates and compares the options to see what
can be achieved at what cost.
1:29:37 PM
CO-CHAIR NEUMAN interjected that Commissioner Hartig has been
put in the hard spot of the cruise ship industry saying this is
either not achievable or not economically feasible along with
the financial impacts to Alaska's communities if there is no
cruise industry. The commissioner has to make the decision of
where economically feasible starts and stops and he must depend
on the best advice that he can get to distinguish that.
REPRESENTATIVE SEATON countered that there is a difference
between what an industry player might say is economically
feasible. He said he interprets DEC's support of a bill that
would eliminate the point-of-discharge requirement to mean that
the department thinks mixing zones are clean enough.
CO-CHAIR NEUMAN disagreed.
1:31:23 PM
REPRESENTATIVE SEATON asked for further definition of what
constitutes economically feasible.
COMMISSIONER HARTIG clarified that DEC does want point of
discharge in the legislation and this language is in Amendment
3. He explained that DEC can relax the point-of-discharge
standard only if the cruise ships cannot achieve it despite
using the most effective treatment that is both technologically
and economically feasible. Right now the cruise ships are
meeting that standard for the majority of the pollutants, he
said. Only a handful of ships are not achieving this and even
those are pretty close. Whether it is the state or the EPA
implementing the Clean Water Act, there must still be some
reliance on judgment calls in terms of evaluating the economic
aspects of various treatment technologies. There is nothing in
either state or federal law that pins down what is considered
economic.
COMMISSIONER HARTIG continued, explaining that Amendment 3 adds
even more checks and balances than there already are. The
department will implement this by evaluating the technologies as
part of a permit modification, which is a public process that
allows the public to review the information and weigh in on it.
If the public disagrees with DEC's decision, an appeal can be
filed through the courts. The science advisory panel and
technology conferences provided by Amendment 3 add two more
levels of review. The conferences already have a successful
track record, he pointed out.
1:35:11 PM
CO-CHAIR NEUMAN added that the purpose of the science advisory
panel is to take the politics out of it, provide advice from all
interested parties, and bring everything to the legislature for
a final decision.
REPRESENTATIVE GUTTENBERG agreed that taking out the politics is
an important role. He noted that Amendment 3 spans more than
just the next election and is needed to ensure that the
legislature's direction is known to whoever might be
commissioner of DEC. Thus, the panel's membership will be an
important part of HB 134. He requested Commissioner Hartig to
walk the committee through the provisions of Amendment 3 that
prevent backsliding.
COMMISSIONER HARTIG advised that Section 3, subsection (g), must
be read in context with all of Amendment 3 and DEC's existing
authority. The idea is to progress as quickly as technology
will allow toward meeting at the point of discharge for all
pollutants, he said. The technology conference showed this
cannot be achieved now, but Amendment 3 addresses getting there.
Over the five-year life of this next permit, DEC will be
investigating all the technology options to find those that will
get closer to, or all the way to, the goal of at the point of
discharge. Those options would then be implemented in either
the next modified permit or the renewed permit. Although the
permit is on a five-year cycle, DEC has the authority to modify
the permit prior to the next renewal should a technology be
found sooner. Subsection (g) prevents DEC from backtracking
below the standard that is in place today. The assumption is
that technology will always advance, so the permit standard will
either stay where it is or get tighter. Thus, over time as
technology advances, it can only go in the direction of
ultimately being at the point of discharge for all pollutants.
1:38:36 PM
REPRESENTATIVE SEATON inquired whether the backsliding provision
is already in federal law and state regulations.
COMMISSIONER HARTIG answered that the backsliding provision is
in the federal Clean Water Act as well as in Alaska Pollutant
Discharge Elimination System (APDES) regulations, where the
state is now getting primacy to issue Clean Water Act permits.
However, commercial passenger vessels do not need a Clean Water
Act permit for their wastewater discharges, so the APDES
regulations and the Clean Water Act requirements relating to
that program do not apply here. This is why the state is
putting in its own provision and adapting it specifically to
this situation.
CO-CHAIR JOHNSON removed his objection to Amendment 3.
REPRESENTATIVE SEATON objected to Amendment 3.
1:40:13 PM
REPRESENTATIVE SEATON asked whether there is anything in
Amendment 3 that would prevent the DEC commissioner from having
only three people on the science advisory panel.
COMMISSIONER HARTIG replied that DEC did not prescribe that and
does not have a minimum in mind, but the legislature could weigh
in. He said the department is interested in getting good input
from a variety of people with science, technological, and
implementation knowledge, as well as key people interested in
this issue and the initiative.
COMMISSIONER HARTIG, in response to Co-Chair Neuman, said DEC
will make sure this is an effective panel.
1:41:26 PM
REPRESENTATIVE KAWASAKI noted that Amendment 3 does not mention
qualifications for members of the science advisory panel, how
many members the panel must have, or whether the DEC
commissioner must listen to the panel's recommendations.
COMMISSIONER HARTIG agreed that the qualifications are not
spelled out. He said his vision for this language is that he
would convene a panel that would include experts in water
treatment for both on-shore and on-vessel systems, chemical and
environmental engineers with understanding of treatment systems,
people who understand implementation issues on vessels such as
weight and balance, people who understand regulatory programs
like the EPA and U.S. Coast Guard, and people from the public
with a technical background and a particular interest in the
purposes of the initiative and the panel.
REPRESENTATIVE KAWASAKI observed that all other state boards and
commissions have specific definitions for how many people, who
the people would be, and what their actual jobs are. He said he
does not know the value of this science advisory panel.
CO-CHAIR NEUMAN interjected that the value is the DEC
commissioner testifying before the House Resources Standing
Committee on what the intent is, and passing this amendment is
the legislative intent of what was heard.
REPRESENTATIVE KAWASAKI pointed out that the reports will not be
until 2012 and 2014 and this particular person may not be
commissioner at that point in time.
1:44:40 PM
REPRESENTATIVE SEATON said he shares the same concern about
establishing a panel that has no defined makeup, qualifications,
or number of meetings. The only requirement is one conference
before 2012. This is not to say that this particular
commissioner will not work to make this panel effective, he
said, but this issue is of concern because it is being put into
a law for resolving this water quality issue. He asked for
Commissioner Hartig's definition of how many meetings there
would be.
COMMISSIONER HARTIG noted that the idea of the science advisory
panel stems from 2004 when such a panel was successfully
convened to look at DEC's initial dilution studies for cruise
ships. This panel of public and private members discussed the
information publicly. People were generally satisfied with what
came out of this and that the information had been peer reviewed
from a technical standpoint, thus filtering out any biases.
This is what DEC is looking to achieve here, he said. When the
legislature gets the reports it will be clear whether the
reports are biased or good peer-reviewed products. The number
of meetings depends on when there is the background information
to make a meeting productive, coupled with where DEC is at in
the cycle of its own work. Right now DEC staff is busy gearing
up for this cruise season, so the first meeting will be this
fall to identify the key issues and then another meeting in a
matter of months. He said he envisions one to two meetings per
year, with probably two meetings the first year, although there
could be more. The idea is to have a group that is helpful to
the department, that provides peer review, and that screens out
any potential for bias so the report is something the
legislature can rely on.
CO-CHAIR NEUMAN added that there will be a report in 2012, so
the legislature would have a second shot if it does not like the
report it receives. This is trying to allow the flexibility
that the commissioner needs, he said.
1:50:09 PM
REPRESENTATIVE HARRIS recommended that a minimum number of panel
members should be spelled out for the comfort of legislators.
He offered to work with Representative Seaton, Commissioner
Hartig, and others to come up with an amendment for the floor
that spells out a minimum number of panel members and that
directs the panel to report to the legislature as well as the
commissioner.
CO-CHAIR NEUMAN responded that the intent is to continue working
on this with the commissioner even if the bill passes.
REPRESENTATIVE HARRIS said he is hearing members of the
legislature expressing concerns. There should be a minimum
number of people representing certain agencies on the panel, he
advised. The panel will not set the policy, but it will make
recommendations to the commissioner and to the legislature
through the reports. In regard to the concern about economic
feasibility, he said that is a tough issue because sometimes the
answer is unknown until the technology becomes available for
sale and because feasibility can be different for each company.
Representative Harris said he sees the advisory panel as having
two purposes for its reports to the commissioner: to determine
the cost and effectiveness of the products available and whether
the product will meet the standards. The people on the panel
need to have those qualifications to do this.
1:53:57 PM
CO-CHAIR NEUMAN stated that this bill needs to be moved along
and discussion will continue to happen and the recommendations
will happen for the floor. He expressed his trust in
Commissioner Hartig to set up the appropriate science advisory
panel in consultation with Representatives Harris and Seaton.
REPRESENTATIVE SEATON said he believes the legislative process
is that legislators offer their opinions through amendments and
through committee. A law is being passed; this is not just
giving the administration the flexibility to do what it wants.
Amendment 3 was not seen until 11:00 a.m. today, he added, so
there was no time to review it and work on the issues.
1:57:07 PM
REPRESENTATIVE SEATON referenced Sections 6 and 7 of Amendment 3
which would repeal AS 46.03.464 as of June 1, 2014. He
understood this repeal to mean that the science advisory panel
would be eliminated, while Section 3, subsection (e), of
Amendment 3, which provides an exception for allowing less
stringent effluent standards, would remain in effect.
COMMISSIONER HARTIG answered correct. He said DEC's belief is
that the panel would have served its purpose after five years.
By the panel's 2014 sunset date, a minimum of two technology
conferences would have been held and there would be seven years
of data and source evaluation reports from the cruise ships, so
the technology would be understood by that point.
1:58:46 PM
REPRESENTATIVE SEATON surmised that after 2014 the law would not
require meeting the standards at the point of discharge but
rather meeting them in mixing zones.
COMMISSIONER HARTIG replied that this is incorrect. The at-the-
point-of-discharge requirement is the expectation, he said.
Right now a handful of pollutants are close but not quite there.
Last month's technology conference found that the cruise ships
would be able to get closer to that standard, if not there, if
given more time. So, what is being said is that, at a minimum,
the cruise ships must achieve what can be achieved with the most
effective pollution reduction technology that is technologically
and economically feasible at each point in time. When new
technology is available the bar will be raised and the cruise
ships will have to meet that new standard. This will continue
until the at-the-point-of-discharge requirement is met and at
which point there will be no ability to get an exception and
backslide.
2:00:34 PM
REPRESENTATIVE SEATON understood that this is DEC's goal, but he
pointed out that Amendment 3 only repeals the science panel and
not the exception granted under Section 3, subsection (e). He
asked for further clarification.
COMMISSIONER HARTIG explained that subsection (e) "is a self-
executing sunset provision". The at-the-point-of-discharge
requirement must be met. Relaxation from this standard can only
be done if the available technologies cannot meet the
requirement. However, once the technology is there, there is no
exception. There is no date included because it is unknown when
the technology that can meet the requirement will be there.
Once there is technology that achieves the at-the-point-of-
discharge requirement for all parameters, it becomes the
standard and there are no exceptions.
2:03:13 PM
REPRESENTATIVE KAWASAKI inquired whether Commissioner Hartig
thinks the 2006 Alaska Cruise Ship Initiative had an impact on
the industry as far as effluent discharge.
COMMISSIONER HARTIG responded that he has not had discussion in
this regard with the industry or anyone else, but DEC is seeing
consistent improvement in the treatment. However, he continued,
that is not unique because this improvement happens in most
industries as technology advances and standards are tightened.
He said he is therefore unable to say whether the improvement
relates specifically to the initiative.
2:04:07 PM
REPRESENTATIVE KAWASAKI offered his belief that previous
testimony indicated the advancements were due in part to the
initiative's requirements. He asked what the incentive would be
for the cruise industry to keep moving forward in pursuing
technology if the standard is reduced by allowing the exception
provided by Section 3, subsection (e).
COMMISSIONER HARTIG answered that there are several technology
forcing measures in the amendment. The department is satisfied
that these measures will be sufficient to move this along, he
said. If they are insufficient, DEC will know pretty quickly
given the science advisory panel, public conferences, and the
first report due to the legislature in two years. If technology
advances and is available for use on cruise ships, DEC will know
and the public will know, and the cruise companies will have to
respond to that. If a company drags its feet, then the
legislature or the courts will step in.
2:06:24 PM
COMMISSIONER HARTIG, in response to Co-Chair Neuman, clarified
that it is not the constitution but the federal Clean Water Act
and Alaska law that require DEC to review the state Water
Quality Standards every three years to determine whether they
adequately protect aquatic life and other uses. This review is
different than the technology forcing being talked about here,
he explained, but DEC does look at the technologies regularly,
as does EPA. When DEC writes permits, it looks at what
technology can achieve. For any water quality permit it issues,
whether for cruise ships, a mine, or oil and gas facilities, DEC
starts with at the point of discharge. If the point of
discharge cannot be achieved, then DEC looks at what technology
can achieve. Therefore, this is not unique.
2:07:45 PM
REPRESENTATIVE SEATON inquired as to how many permits with a
reduced mixing zone standard have been issued to mines by DEC
and that have not been re-permitted.
CO-CHAIR NEUMAN said today's discussion is not about mines, but
about HB 134 and cruise ships.
REPRESENTATIVE SEATON responded that the testimony was about how
business is done, but agreed to refrain from further questions
related to mining.
CO-CHAIR NEUMAN added that this topic could be discussed during
the presentation on the large mine permit process that is
scheduled next.
2:08:39 PM
REPRESENTATIVE SEATON asked whether onshore treatment of
effluent, as would be provided under the tabled Amendment 2,
would be economically feasible, given there would be no capital
outlay by the cruise ships for this type of treatment.
COMMISSIONER HARTIG answered that DEC was mindful of Amendment 2
when it was looking at Amendment 3. Therefore, the options
described in Amendment 3 were left broad enough to be
interpreted as treatment on-shore, on-vessel, or a combination.
REPRESENTATIVE SEATON inquired whether Amendment 3 looks at a
funding source or would the ships be required to capitalize the
treatment facility regardless of whether it is on-vessel or on-
shore.
COMMISSIONER HARTIG said this type of information would be
included in DEC's report to the legislature. The report would
present the option that DEC thinks is best, as well as discuss
the pros and cons of the other options that were considered.
Thus, the report would identify any on-shore opportunities that
required legislative or economic incentive.
2:11:15 PM
REPRESENTATIVE SEATON asked whether Commissioner Hartig still
stands by the following statement made by his department in a
request for an adjudication on the large commercial passenger
vessel wastewater discharge general permit:
The staff believes that there may be existing
technology, developing technology, and other actions
including treatment process, source, and source
reductions that could potentially and reasonably be
applied to resolve the cruise ship compliance problems
with long-term effluent limits set under the general
permit. However, staff also believes that it is
equally reasonable to allow the cruise ship lines more
time to explore and obtain technology or other actions
by extending the stay through December 31, 2009, as
long as the cruise industry's efforts, progress
reports, and answers to DEC inquiries reflect a
genuine intent to pursue compliance solutions.
COMMISSIONER HARTIG said the aforementioned statement is from a
report that came to him from the department in the context of an
adjudication. He said he cannot take a position on the
statement because he is basically sitting separate from the
department as the judge in that adjudication. He explained that
he was asking for a status report as to whether he should
proceed with that adjudication to a decision or continue to stay
it as the parties tried to work it out. The statement reflects
the conclusions of the Division of Water, which then came to him
as the adjudicator, he said.
2:13:20 PM
REPRESENTATIVE SEATON inquired why Amendment 3 provides for a
five year extension, given that the position of DEC staff is to
consider a one-year extension as long as progress is being made
toward compliance with the standards.
COMMISSIONER HARTIG reiterated that the aforementioned statement
is in a status report dealing with the issue of whether he
should continue the stay of that adjudicatory appeal; it does
not go toward staying permit compliance and it does not have
anything to do with permit compliance. The appellant in that
matter was raising certain legal questions regarding the general
permit that DEC had issued, he explained. The stay was whether
DEC should stay the consideration of those issues raised by the
appellant, pending resolution of some of those issues through
this legislation or some other matter. The aforementioned
statement is a response to the concern that was raised by those
on the other side of the appeal that staying the adjudication
would slow down the effort of the cruise ship companies to try
to come into compliance. So, it is in a different context.
2:15:55 PM
REPRESENTATIVE TUCK offered his thanks for the work that was
done to address the committee's concerns. He noted that he did
not receive Amendment 3 until 11:00 today. He asked whether
Amendment 3 would permit ships individually and, if so, how
often those permits would be reviewed.
COMMISSIONER HARTIG answered that right now DEC has a general
permit and any vessel can ask to be authorized for discharge by
the general permit or an individual permit. If the vessel
decides to be authorized under the general permit, then it must
meet all of those standards. Regardless of this, DEC can decide
to issue an individual permit if it decides that an individual
vessel is different enough. The department also has the option
to issue a general permit but still require special conditions
that are applicable to particular vessels, such as defined steps
for the compliance schedule. He said he envisions that within
the next year DEC will be issuing a modified permit and could
require special conditions for particular vessels, if warranted,
or do individual permits.
2:18:39 PM
REPRESENTATIVE TUCK surmised that the general permit is by
classification of ship and not by cruise line industry.
COMMISSIONER HARTIG replied correct.
REPRESENTATIVE TUCK inquired whether it was DEC's forecast at
the time the deadline was previously extended from the
initiative that the cruise industry would meet the standards.
COMMISSIONER HARTIG responded that when the original permit was
extended he did not know what the schedule would be so he chose
the minimum possible. He explained that this was one of several
purposes for the February 2009 technology conference because he
knew that DEC would probably need to extend that deadline again.
However, under DEC's existing statutory and regulatory authority
a compliance deadline can only be extended if there is a plan
and a schedule for getting the permittee into compliance. So,
DEC needed to have a handle on whether there was a technology
that would get the cruise ships there and how long that might
take so that the schedule could be lawfully extended.
2:19:56 PM
REPRESENTATIVE TUCK asked whether Amendment 3 will give DEC the
plan and schedule to do that.
COMMISSIONER HARTIG said DEC will look at doing a modified
permit within the year. In issuing the modified permit, DEC
would consider what it has learned from the technology
conference and what it has learned from the cruise ships
existing reports. Under the current general permit, he
explained, the cruise ship companies must provide DEC with
source reduction evaluation reports which identify pollutants on
the vessels, whether the ship is achieving water quality
criteria at the point of discharge, what efforts the ship has
made, and what efforts the ship thinks it can make to reduce
pollutants to come into compliance. The cruise ships also
supply DEC with monthly monitoring data as to what they have
been able to achieve. He noted that in the modified permit, DEC
would set a minimum standard for what technology can meet for
only those parameters that the ships are not meeting at the
point of discharge. This would continue to be revisited and
included in modified permits.
2:21:22 PM
REPRESENTATIVE TUCK, in regard to the [zero] fiscal note,
understood that DEC already has revenues coming in that could be
used to meet the parameters of Amendment 3.
COMMISSIONER HARTIG deferred to Director Kent.
LYNN TOMICH KENT, Director, Division of Water, Department of
Environmental Conservation, explained that DEC's base budget
contains a certain amount of funding to fund a portion of the
cruise ship program. This funding was established by
legislative direction as a per berth fee and the funds are used
for annual cruise ship registration. When the 2006 cruise ship
initiative passed, DEC said it would transfer the work that it
was doing under the prior rules for cruise ships, and how DEC
regulated them, to the permitting process. So, in its base
budget, DEC has money in contractual funds to enable the
department to conduct various studies, such as looking at the
opacity from vessels, testing any new pollutants that might be
identified, or addressing any changes there might be in the
potential for discharges. Over the past year, DEC used those
funds to hire a contractor to help with the technology review
conference and to produce a report on that conference, as well
as to hire a contractor to review the source reduction
evaluation reports submitted by the cruise ships. If HB 134
passes, DEC will use some of those funds next year to get
started on the next technology review and the science advisory
panel.
2:23:28 PM
REPRESENTATIVE TUCK inquired as to whether the standards
established by the initiative will be met by 2014.
COMMISSIONER HARTIG said that is difficult to answer. The
cruise ships have come a long way, and some of the vendors and
academics at the technology conference were optimistic for
ammonia and a little less optimistic for copper. Things are
really close on nickel and zinc; an improvement in copper will
also improve the other metals. He pointed out that percentage-
wise it may sound larger, but when looking at the difference
between what the Water Quality Standard is and what is currently
being achieved, the difference for copper is measured in parts
per billion, so it is very close already. Even if the standards
are not met by 2015, he said, it will be very, very close.
2:25:58 PM
REPRESENTATIVE TUCK asked whether some cruise ships would be
unable to get a permit should Amendment 3 become law.
COMMISSIONER HARTIG answered that some ships may choose not to
apply, but based on current DEC data there are no cruise ships
that are so far off that DEC would be unable to permit them.
Some ships may have different compliance requirements than
others if DEC thinks more needs to be done to reach a level that
technology can achieve for the handful of parameters that are
not currently meeting the at-the-point-of-discharge requirement.
He anticipated that anyone wanting to get a permit would get it,
but some may have more strings attached.
2:27:14 PM
REPRESENTATIVE TUCK inquired what gives DEC the meat to ensure
that any technology advancements are really implemented.
COMMISSIONER HARTIG urged that members not look at this too
narrowly because the treatment technologies that the cruise
ships would employ are not unique to cruise ships. These
technologies are being used in a lot of other contexts, he
explained. The pollutants are not unique and the systems are
not unique. People are already looking at putting technologies
into smaller packages and making them more efficient, so the
technology is advancing outside the cruise ship world. It is
just a matter of when developing technology can be transferred
to a cruise ship. There are vendors interested in getting their
systems to a point where they can be sold to cruise ships, so
there is pressure moving this along. All DEC is doing is
shining a light so that the vendors and ships know it is
important to keep advancing.
REPRESENTATIVE TUCK asked how often the permits will be reviewed
and re-permitted.
COMMISSIONER HARTIG replied that the normal permit cycle is five
years, but DEC has the discretion to issue a modified permit at
any point in time if the laws change or there is new technology.
Currently, DEC is on a two year technology review schedule,
having just finished the February 2009 conference and two more
conferences scheduled, each two years apart.
2:29:59 PM
REPRESENTATIVE EDGMON asked whether the economically feasible
standard is built into other permits for mixing zones that are
under the Alaska Water Quality Standards.
COMMISSIONER HARTIG responded that this standard appears in
several places, such as DEC's anti-degradation policy that
applies to all discharges in the state. When the water quality
of the receiving water is of a higher quality than is required
to protect aquatic life and other uses, the anti-degradation
policy allows that water to be degraded only if certain findings
are made by the department, and one of those is a technology
requirement. The standard similarly comes up in the context of
authorizing a mixing zone. In this regard, the 19 factors that
were previously discussed before the committee must meet the
technology standards.
REPRESENTATIVE EDGMON commented that in terms of having the
expertise within DEC to measure economically feasible, the realm
is very different in this context. He said he supports the bill
sponsor coming forward to work with the committee to reach the
middle ground that everyone is interested in achieving. He
urged that someone with expertise in the economic feasibility
standard be included on the science advisory panel.
2:31:47 PM
CO-CHAIR JOHNSON remarked that no one is more skeptical of the
various state departments than he. However, there comes a point
where a department can be micro-managed to death and the
committee is almost at that point. He said he trusts that the
sponsor will work to solve the problems the committee has
regarding the number of people on the science advisory panel.
The bill can go to the House Rules Committee for amendments so
that committee work is not being done on the floor. He called
the vote on Amendment 3.
REPRESENTATIVE SEATON objected.
REPRESENTATIVE KAWASAKI objected.
The committee took an at-ease from 2:33 p.m. to 2:39 p.m.
2:39:09 PM
CO-CHAIR NEUMAN specified that since there has been a call for
the amendment, a vote must be taken on the amendment.
REPRESENTATIVE EDGMON asked for clarification as to what exactly
is being voted on.
CO-CHAIR NEUMAN responded that the vote is on whether to accept
Amendment 3.
A roll call vote was taken. Representatives Neuman, Guttenberg,
Johnson, Tuck, Wilson, and Olson voted in favor of Amendment 3.
Representatives Edgmon, Kawasaki, and Seaton voted against it.
Therefore, Amendment 3 was adopted by a vote of 6-3.
2:40:49 PM
REPRESENTATIVE TUCK noted that in Amendment 3 the three terms
"the most effective, technologically and economically feasible"
appear together on page 2, line 9, and on page 3, line 14; but
not on page 1, line 14. To provide consistency, he moved that
the committee adopt [Conceptual] Amendment 4 to Amendment 3 as
follows:
Page 1, line 14, of Amendment 3, following "is"
Insert "the most effective,"
Thus, page 1, lines 13-15 of Amendment 3 would read as follows:
Environmental Conservation, in consultation with its
science advisory panel on wastewater treatment,
determines that compliance with those limits or
standards is the most effective, technologically and
economically feasible."
REPRESENTATIVE KAWASAKI objected.
REPRESENTATIVE GUTTENBERG objected and asked for clarification
on whether "most effective" or "effective" would be inserted.
REPRESENTATIVE TUCK said "the most effective".
REPRESENTATIVE WILSON suggested adding a comma after effective.
CO-CHAIR NEUMAN restated Conceptual Amendment 4 [see above].
2:43:28 PM
REPRESENTATIVE GUTTENBERG withdrew his objection.
[Representative Kawasaki's objection was treated as withdrawn.]
There being no further objection, Amendment 4 was adopted.
CO-CHAIR JOHNSON asked for clarification that Representative
Tuck's amendment is Amendment 4.
CO-CHAIR NEUMAN responded yes.
REPRESENTATIVE TUCK noted that he thought the call of the vote
was to put Amendment 3 on the table, but instead the vote was to
pass Amendment 3. He said he therefore agrees that his
amendment would be Amendment 4.
2:44:49 PM
REPRESENTATIVE SEATON moved that the committee adopt Conceptual
Amendment 5 to Amendment 3 as follows:
Page 2, line 7, of Amendment 3, following "section"
Insert "for no more than two years duration"
Thus, page 2, line 7, of Amendment 3, would read as follows:
stringent than those required under (b)(1) of this
section for no more than two years duration if the
department finds that a
CO-CHAIR NEUMAN noted that Amendment 3 replaces [CSHB 134(CRA)].
2:45:28 PM
CO-CHAIR JOHNSON objected in order to hear Commissioner Hartig's
opinion.
CO-CHAIR NEUMAN requested Commissioner Hartig to address how
Conceptual Amendment 5 would impact DEC.
COMMISSIONER HARTIG said DEC typically issues water discharge
permits on a five-year basis, unless there is a change in
circumstances, statutes, or a big change in technology. These
permits take a lot of time and effort to put together and they
go through an extensive public process, he explained. While he
understood there is a high degree of interest in achieving the
at-the-point-of-discharge standard for all pollutants as soon as
possible, he said it would be very difficult and burdensome to
make it less than a five-year rotation period. In further
response to Co-Chair Neuman, Commissioner Hartig agreed that the
department already has the ability to shorten the time period if
needed.
2:47:05 PM
REPRESENTATIVE WILSON understood that under Amendment 3, DEC
would already be looking at things every two years, given the
schedule of the future technology conferences.
COMMISSIONER HARTIG answered correct.
REPRESENTATIVE SEATON maintained that the bill does not say
this. He cited page 3, line 6, of Amendment 3, which states,
"hold one or more public conferences or workshops". It does not
say that there will be two conferences, he argued, and it does
not say that there will be one conference every two years. Nor
does it say that there will be a conference before the
preliminary permit and one before the final report. So, if that
is the desire, then there needs to be an amendment. Speaking to
Amendment 5, he said the committee has heard that progress is
being made, that technology will have to be used as it becomes
available, and that backsliding cannot occur at the end of the
permit but this backsliding is not on an ongoing basis in
between permit cycles without revoking the permit. Thus, the
logical thing is to make sure there is a mechanism that ensures
the two-year schedule rather than leaving it on an ad-hoc basis.
The permit does not provide that it can be revoked if the
commissioner decides that better technology has come along.
CO-CHAIR NEUMAN said Commissioner Hartig testified that this is
provided by other statutes.
REPRESENTATIVE WILSON surmised that Amendment 3 does mean that
these things need to be done because page 3, line 9 of the
amendment states, "On or before January 1, 2012, the
commissioner, in consultation with the panel, shall provide a
preliminary report to the legislature that summarizes....".
2:50:20 PM
REPRESENTATIVE GUTTENBERG asked when the permits will next be
renewed.
COMMISSIONER HARTIG explained each individual permit is renewed
every five years, so all of them do not come up at once every
five years.
REPRESENTATIVE GUTTENBERG inquired how many permits will be
coming up in the next cycle that would be affected by HB 134 and
Conceptual Amendment 5.
COMMISSIONER HARTIG responded that right now all of the cruise
ships are discharging under one general permit. Ships that
choose not to discharge under this one general permit go more
than three miles out to discharge. Although it is just one
permit for cruise ships, DEC administers thousands of other
water discharge permits, he explained. When DEC looks at this
individual permit, it looks at the permit in the context of all
of the department's permits.
2:52:30 PM
REPRESENTATIVE SEATON pointed out that Amendment 5 would affect
the special subsection related to cruise ships that is being
added to AS 46.03.462. Amendment 5 would be for a two-year
permit, he said, and then if technology improves there would be
a re-issuance of the permit to incorporate the new technology.
Otherwise, under the current five-year cycle, the permit would
have to be revoked to incorporate the new technology that
testimony has indicated is moving quickly.
COMMISSIONER HARTIG explained that while two years is the number
used [in Amendment 3], it is still a guess as to when treatment
might be available to bring ammonia to at the point of
discharge; however, he has not heard that for metals. He
further explained that two years is the guess as to when the
technology might become available and then it would still have
to be implemented. The ships already have schedules and
implementation means bringing them into dry dock for
modification. Additionally, a modification can affect the
vessel in other ways due to the weight and so forth. The
department thought this five year period was realistic, he said.
Consideration was not about what was convenient for DEC and its
workload and what is fair to other permittees waiting for
permits, it was about what DEC thought was feasible in terms of
reviewing and vetting, and getting it implemented.
2:54:59 PM
REPRESENTATIVE SEATON understood that AS 46.03.462 applies to
cruise ship discharges at the point of discharge.
COMMISSIONER HARTIG answered correct, AS 46.03.462 applies just
to cruise ships and addresses the at-the-point-of-discharge
requirement.
REPRESENTATIVE SEATON maintained that AS 46.03.462 affects only
the one general permit for cruise ships and not the thousands of
other water quality permits. He said he therefore believes that
Amendment 5 is in line with the testimony that has been received
about technological upgrades.
CO-CHAIR NEUMAN offered his belief that DEC already has this
ability.
COMMISSIONER HARTIG replied correct. The permit issued to
cruise ships under AS 46.03.462 has a cross reference to AS
46.03.100, which is DEC's general permitting authority. Under
this general permitting authority, DEC can modify and re-issue
permits when it deems this to be appropriate.
A roll call vote was taken. Representatives Kawasaki, Edgmon,
Tuck, Seaton, Guttenberg, and Wilson voted in favor of Amendment
5 to Amendment 3. Representatives Olson, Neuman, and Johnson
voted against it. Therefore, Amendment 5 passed by a vote of 6-
3.
[CSHB 134(CRA), as amended, was held over.]
2:58:34 PM
ADJOURNMENT
The House Resources Standing Committee meeting was recessed at
2:59 p.m. to a call of the co-chair. [The meeting was
reconvened March 26, 2009.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| AK Large Mine Permit Process Presentation.pdf |
HRES 3/25/2009 1:00:00 PM |
|
| Governor Palin Ltr - 19 Mar 2009.pdf |
HRES 3/25/2009 1:00:00 PM |
HB 134 |
| HB 134 Amend 3.pdf |
HRES 3/25/2009 1:00:00 PM |
HB 134 |