Legislature(1995 - 1996)
05/03/1996 12:40 PM Senate RES
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* first hearing in first committee of referral
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+ teleconferenced
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SENATE RESOURCES COMMITTEE
May 3, 1996
12:40 p.m.
MEMBERS PRESENT
Senator Loren Leman, Chairman
Senator Drue Pearce, Vice Chairman
Senator Steve Frank
Senator Rick Halford
Senator Robin Taylor
Senator Georgianna Lincoln
MEMBERS ABSENT
Senator Lyman Hoffman
COMMITTEE CALENDAR
CS FOR HOUSE BILL NO. 342(RES) am
"An Act relating to water quality."
HOUSE JOINT RESOLUTION NO. 66 am
Relating to opposing the American Heritage Areas Program.
PREVIOUS SENATE COMMITTEE ACTION
HB 342 - See Resources minutes dated 5/1/96 & 5/2/96.
HJR 66 - See Resources minutes dated 5/1/96 & 5/2/96.
WITNESS REGISTER
Representative Norman Rokeberg
State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Prime sponsor of HB 342
Gershon Cohen, Executive Director
Alaska Clean Water Alliance
Haines, AK
POSITION STATEMENT: Has concerns with SCS CSHB 342(RES)
Julie Penn
Alaska Environmental Lobby
P.O. Box 22151
Juneau, AK 99801
POSITION STATEMENT: Voiced concerns with SCS CSHB 342(RES)
Janice Adair, Director
Division of Environmental Health
Department of Environmental Conservation
555 Cordova St.
Anchorage, AK 99501
POSITION STATEMENT: Outlined department's concerns with SCS CSHB
342(RES)
Bruce Campbell, Staff to Representative Pete Kelly
State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Offered information on SCS CSHB 342(RES)
Shirley Armstrong, Staff to Representative Norman Rokeberg
State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Offered information on SCS CSHB 342(RES)
Marieke Nordliner, Staff to Representative Gail Phillips
State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Offered information on HJR 66 am
Dick Bishop, Executive Director
Alaska Outdoor Council
P.O. Box 73902
Fairbanks, AK 99707
POSITION STATEMENT: Testified in support of HJR 66 am
ACTION NARRATIVE
TAPE 96-72, SIDE A
Number 001
CSHB 342(RES) am WATER QUALITY STANDARDS
CHAIRMAN LEMAN called the Senate Resources Committee meeting to
order at 12:40 p.m., and brought CSHB 342(RES) am before the
committee as the first order of business. He stated the committee
lacked a quorum, but that testimony would be taken on the
calendared legislation until a quorum was established.
CHAIRMAN LEMAN directed attention to a new draft SCS CSHB 342(RES),
version "Z." The committee had previously taken testimony on a
version "W" of the committee substitute from several people
including the Department of Environmental Conservation, as well as
receiving substantial written response. He said in the interest of
accommodating the various people who have written and provided
verbal response, several of those comments have been incorporated
into the new version. He then outlined the following differences
between version "W" and the new version "Z":
Section 2 has been reformatted. The four subsections have been
placed in a different order, going in the order from water quality
standards down to measurements. In the new subsection (a),
paragraph (4), the language "in a more restrictive use
classification or otherwise cleaner" has been deleted. The
department pointed out that "of a higher quality" and "or otherwise
cleaner" essentially have the same the meaning. The language "in
a more restrictive use classification" really does not relate to
the discharge water; it has to do with the receiving water. Under
"Special Procedures for Certain Water Quality Regulations" some
editorial changes were made that are not significant. Subparagraph
(B) under paragraph (3) has been moved under paragraph (2) and
reworded to make it read easier. The phrase "or contaminated sea
life consumption rates" and the definition of "contaminated sea
life" has been deleted where it appears in the section.
REPRESENTATIVE ROKEBERG , prime sponsor of HB 342, stated his
support for the minor changes in SCS CSHB 342(RES) version "Z."
Number 109
GERSHON COHEN , Executive Director, Alaska Clean Water Alliance,
testifying via teleconference from Haines, addressed his comments
to the new SCS CSHB 342(RES). He stated he has a number of
concerns with subparagraph (b) on page 2. He does not think the
department should adopt general language that prohibits the
adoption of water quality standards more protective than federal
standards because the water quality in most locations of Alaska far
exceeds the quality in waters in most of the United States. He
also does not believe the 90-day limitation on the review of an
applicant's request for regulatory changes is adequate because with
the current staffing levels at DEC, he does not think it is enough
time for the state to adequately review the application, as well as
there is no justification language for the request.
He referred to page 3, line 12, and he said he does not think that
the DEC people, by and large, are really qualified to make economic
considerations, and it is not clear in the bill even what criteria
will be used to make such a decision.
Referring to page 3, line 24, which relates to the management of
sediment, Mr. Cohen said that language isn't clear, as well as he
doesn't think the Imhoff cone method is an adequate surrogate for
measuring sediment.
Mr. Cohen thanked the committee for the opportunity to comment.
Number 200
CHAIRMAN LEMAN , referring to Mr. Cohen's comments on the
measurement of sediment, said when the permit requires sediment to
be measured under this bill, it will be by the Imhoff cone method
for settleable solids. Standard Methods provides for the
volumetric method and the gravimetric method for measuring
settleable solids. He clarified this section is saying that for
measuring sediment that will be method used, so it will be a
settleable solids test with the Imhoff cone, using the volumetric
method.
MR. COHEN said his concern goes back to discussions over the last
few years over the water quality standards and the dropping of the
sediment regulation because of the inappropriateness of that test.
He understands that DEC is looking into what tests, if any, should
be used for sediment, and they are supposed to be coming up with
something by midsummer for both sediment and hydrocarbons to see if
the tests that are listed in the regulations will actually do the
job.
CHAIRMAN LEMAN said he is aware of the study, and he would expect
that if at sometime DEC would propose to have a different
methodology, it could be addressed.
Number 235
JULIE PENN , representing the Alaska Environmental Lobby, said she
believes that HB 342 will weaken Alaska's water quality standards
for the benefit of industry and at the expense of the public good.
She thinks the 90-day period for DEC to complete a scientific
evaluation and to craft regulatory language is too brief, and the
written standards required of DEC in order to implement more
stringent standards are nearly impossible to meet.
Number 296
JANICE ADAIR , Director, Division of Environmental Health,
Department of Environmental Conservation, said that as testified to
earlier, the department has serious concern and does not support
the requirement that sediment only ever be settleable solids, which
is contrary to the agreement that DEC reached with interest groups
this past summer.
She said the special procedures for certain water quality
regulations now also include where DEC is going to do something
that's less restrictive. The essence of this now is that if DEC
proposes something more stringent, less stringent, or no federal
standard, they have to go through this process. So, in other
words, they will have to go through this process every time, and
the department cannot do that, she said.
Ms. Adair noted that the consideration of economic and
technological feasibility has now been elevated to a written
finding, and that is also something else the department does not
have the ability to do, particularly in 90 days.
Ms. Adair pointed out that when DEC veers from federal criteria,
they have to justify that to the EPA. When they are more stringent
than the EPA, they have to provide them with their scientific
justification for that.
Ms. Adair also voiced concern with the provision relating to a
request to the department to change its standards within a certain
time frame. She questioned if it is something that the department
can reasonably do in 90 days, or will they will turn into a
standard setting program as opposed to being able to certify and
issue permits.
Ms. Adair said if it is the intent of the Legislature to establish
parameters around which DEC adopts water quality standards and to
set up a process that the department has to follow to do something
different or more stringent than the federal government, she
believes it can be done in a reasonable, rational fashion that does
not threaten the other workload of the program staff. She added
that this is a chronically underfunded program.
CHAIRMAN LEMAN asked Ms. Adair what other word she would rather
have in the bill than "findings." MS. ADAIR responded that this
was discussed at length in House Resources, and the findings
language was changed to "considerations in writing" to get around
the problem of findings being something more formal, more
analytical, more in depth than what the department can do.
REPRESENTATIVE ROKEBERG acknowledged that accommodation was made in
the House Resources Committee, particularly as it related to the
economic feasibility, but not the technical feasibility.
Number 455
CHAIRMAN LEMAN stated that he believes it is because of a failure
in the department to adequately address needs of the public that
this legislation was introduced, and it would be his preference
that the Legislature not even be considering this bill. If the
department would have, over the years, addressed these in a common
sense approach, this bill would not be needed.
Responding to Chairman Leman's comments, MS. ADAIR said it is
absolutely a management issue, and she doesn't think anybody
disputes the fact that this program has not been the beneficiary of
the kind of management that it needs. She thinks the agreement, if
nothing else, was a first step in trying to categorize what needs
to be done, prioritize those things that need to be done, and then
get on with it.
CHAIRMAN LEMAN closed the public comment on HB 342 and stated the
bill would be set aside until a quorum was established.
Number 464
HJR 66 am OPPOSE AMERICAN HERITAGE AREAS
CHAIRMAN LEMAN brought HJR 66 am, sponsored by the House Rules
Committee, before the committee as the next order of business.
MARIEKE NORDLINER , staff to Representative Gail Phillips, explained
the resolution was drafted in response to a congressional bill
currently before Congress that is unfriendly to Alaska. In
opposing that bill, as currently drafted, HJR 66 requests
amendments specifically to protect private property rights, and it
specifically opposes the increased authority handed to the
Secretary of the Interior under the current bill.
DICK BISHOP , Executive Director, Alaska Outdoor Council, voiced
AOC's strong support for HJR 66. Under the bill in Congress, the
National Park Service would be able to administratively designate
natural heritage areas, and with that, could go restrictions that
in addition to being inconsistent with private property rights,
would be inconsistent with other uses by other people. The Council
feels that the legislation is not an appropriate measure to be
passed by Congress, and they will work to that end.
CHAIRMAN LEMAN asked if there was any testimony in the House
opposing this resolution. MS. NORDLINER responded that the
National Park Service called and they were upset at what they
perceive to be a slap in the face to the Park Service, and the
resolution was amended to remove the language they found
aggressive.
There being no further testimony on HJR 66 am, CHAIRMAN LEMAN
closed the public hearing and stated the committee would stand at
ease until a quorum was established.
CHAIRMAN LEMAN called the meeting back to order at 1:45 p.m., and
noted there was a quorum present.
CHAIRMAN LEMAN brought HJR 66 am (OPPOSE AMERICAN HERITAGE AREAS)
back before the committee. Hearing no further discussion on the
resolution, he asked for the pleasure of the committee.
SENATOR PEARCE moved HJR 66 am be passed out of committee with
individual recommendations. Hearing no objection, it was so
ordered.
CHAIRMAN LEMAN brought CSHB 342(RES) am (WATER QUALITY STANDARDS)
back before the committee.
SENATOR FRANK moved the adoption of SCS CSHB 342(RES), version "Z".
Hearing no objection, it was so ordered.
CHAIRMAN LEMAN then reviewed the changes made in SCS CSHB 342(RES)
for the committee members who were not present for the overview
earlier in the meeting. MS. ADAIR also restated DEC's concerns
with the legislation.
TAPE 96-72, SIDE B
Number 070
CHAIRMAN LEMAN pointed out that there had been an earlier
discussion on Ms. Adair's concern with the "findings" provision.
He stated, for the record, that it would be his intent that these
findings not become substantial documents, but that they would be
technically correct and, yet, common findings that the DEC staff
should have the capability to produce. It would be a written
justification for the action that would be technically based.
SENATOR TAYLOR referred to a press release from the Office of the
Governor, and he asked Ms. Adair if the committee substitute being
discussed comports with the provisions cited in the press release.
MS. ADAIR explained that the press release was intended to
demonstrate for the committee the agreement that was brokered by
former Commissioner Burden on settling a petition on water quality
standards. As a part of that agreement, the department agreed to
go ahead with some studies that are to be finished by July 1996.
In the department's opinion, this legislation would prejudge the
outcome of at least one of those studies.
Number 125
In response to a question from Senator Taylor, MS. ADAIR said the
Department of Law has concurred that without changing the
definition of "sediment," which is a standard definition, they
would not be able to have a measurement mechanism for total
suspended solids. This would mean that there would be no way to
then measure a standard, so there would no way to have an
enforceable standard for it. CHAIRMAN LEMAN commented that he did
not agree with Ms. Adair or the Department of Law, because he
believes all they have to do is to not write it in the permit as
sediment if they want to measure total suspended solids -- do it
the same way as for other effluent discharges.
SENATOR FRANK questioned the necessity of passing the bill and what
it would accomplish.
BRUCE CAMPBELL , staff to Representative Pete Kelly, said it was his
understanding that the purpose of the bill is to give some policy
guidance to the Department of Environmental Conservation on the
functions and parameters in which it is going to regulate members
of the public. One of those parameters that is used under 18 AC 70
020 is sediment. Those regulations define sediment and the
parameter has been and would continue to be under this bill the
Imhoff cone method for measuring settleable solids.
CHAIRMAN LEMAN further explained that the bill provides that if you
are requiring a measurement for sediment it shall be the volumetric
method for measuring settleable solids, but if you want to measure
for total suspended solids or total dissolved solids, etc., then
you define that and require that; there just has to be technical
justification for it.
SENATOR FRANK asked if this provision will lead the department
toward a settleable solids measurement rather than a turbidity
measurement. MR. CAMPBELL clarified there are two different
standards to meet, the settleable solids and the turbidity.
Number 224
SENATOR FRANK made reference to a letter from the Placer Miners of
Alaska suggesting that on page 2, line 21, remove the language "and
maintain the state's aquatic productivity," and he asked why that
language was in the bill. MR. CAMPBELL replied it was his
understanding that this language was added as a part of a
compromise between the sponsor and the Department of Fish & Game.
The department would like to continue to have their most
restrictive standards, which are the standards for aquatic
productivity, added to DEC's standards for compliance with permits.
Number 310
SENATOR TAYLOR asked if water flowing out of fish hatcheries are
exempt from these water standards. MS. ADAIR responded that it is
her understanding that there are some processors that do have these
permits, but the hatcheries typically do not because their
discharges are below the level that requires the permits. SENATOR
TAYLOR said he didn't think that was an accurate statement. He
thinks they were waived with DEC's regulations about seven or eight
years ago about three weeks after he asked the very same question
on a very similar bill in the Senate Judiciary Committee. The
regulations were amended so that the fish hatcheries would not have
to comply by putting in settling ponds, filtration plants, etc. He
pointed out that the fish food sacks in these hatcheries contain
some of the most toxic chemicals going, and he suggested perhaps
something should be inserted in this bill that absolutely makes
every single fish hatchery comply with the requirements for
settleable solids. MS. ADAIR said she would look into Senator
Taylor's concern.
Number 355
Returning to the standards for aquatic productivity language,
SENATOR FRANK asked if that language is existing law. BRUCE
CAMPBELL responded that it is part of the regulations. SENATOR
FRANK voiced his concern with having this language in the bill
because this state has done everything it can to shut down the
mining industry and he doesn't want to give them any more tools to
do it with. He said he hasn't a heard a good reason why those
words should be in the bill.
SHIRLEY ARMSTRONG , staff to Representative Rokeberg, explained the
language was a compromise with the Department of Fish & Game's
legislative liaison. They wanted to use the more generic term
"environment," and if they didn't get that term, they wanted to use
the term "to maintain and protect the aquatic productivity in
individual water bodies." BRUCE CAMPBELL added that the term is
already in the Fish & Game statutes, and adding it to this bill
clearly places that burden also on DEC, to be applying those same
concerns. He said the placer miners are concerned that the far
more restrictive standards that come from Fish & Game would then be
further applied and become even more stringent in this issue. He
noted it is the Department of Fish & Game that demanded to go more
stringent in the Governor's cabinet meeting.
SENATOR LINCOLN said she thought the language should be left in the
bill to ensure that when DEC reviews the water quality standards,
that they are protecting the aquatic productivity, and she thinks
they can work with the placer miners to make sure there is the
protection for the fish, as well as allowing the mining to
continue.
Number 520
After further discussion on the phrase, SENATOR TAYLOR moved that
on page 1, line 13, delete the words "and maintain the state's
aquatic productivity, and on page 3, line 18, delete the words "or
to maintain the state's aquatic productivity." SENATOR LINCOLN
objected. The roll was taken with the following result: Senators
Halford, Taylor and Frank voted "Yea" and Senators Lincoln and
Leman voted "Nay." The Chairman stated the amendment passed on a
3-2 vote.
Number 560
SENATOR TAYLOR noted Alaska has many streams that are glacier fed,
and he asked if those streams could ever meet any of the standards
that are being expected of other people. MS. ADAIR informed him
that in reading the water quality regulations she gleaned that the
natural condition of a water body is taken into account when a
permit would be issued to determine what standards have to be met.
TAPE 96-73, SIDE A
Number 010
SENATOR HALFORD moved that on page 1, line 12, at the end of the
sentence insert the words "and propagation of fish and wildlife"
and on page 3, line 18, after the word "welfare" insert
"propagation of fish and wildlife. SENATOR FRANK objected. The
roll was taken with the following result: Senators Taylor,
Halford, Lincoln and Leman voted "Yea" and Senator Frank voted
"Nay." The Chairman stated the amendment passed on a 4-1 vote.
There being no further amendments or testimony on SCS CSHB
342(RES), CHAIRMAN LEMAN asked for the pleasure of the committee.
SENATOR HALFORD moved that SCS CSHB 342(RES), as amended, and the
accompanying fiscal notes be passed out of committee with
individual recommendations. Hearing no objection, it was so
ordered.
There being no further business to come before the committee, the
meeting was adjourned at 2:45 p.m.
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