Legislature(1997 - 1998)
02/20/1997 01:43 PM House FIN
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE BILL NO. 51
"An Act relating to the Department of Environmental
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Conservation."
REPRESENTATIVE NORMAN ROKEBERG noted that the Resource
Development Council supported HB 342 and HB 51. He observed
that HB 51 is similar to HB 342 which was passed by the
Nineteenth Alaska State Legislature and vetoed by the
Governor. He noted that provisions relating to Arsenic,
mixing zones, and statutory authority for state
administration of the federal National Pollutant Discharge
Elimination System (NPDES) program differ in the two bills.
He stated that HB 51 is a regulatory reform bill. He
maintained that a number of companies and industries in the
State have experienced substantial problems under the
current permit process. He observed that private business
is willing to contribute to the cost associated with the
issuance of permits by providing outside expertise and data.
Representative Rokeberg referred to the findings and intent
section. He quoted section 1: "The people of Alaska
express their will through the legislature and regulations
implement legislative action." He alleged that "many of the
people that come out for public hearings are "professional
nea-sayers", that have nothing else to do, and by and large
don't truly represent the will of the people of the State of
Alaska and that is why we have a legislature." He
maintained that it is the legislature that determines the
policy of state government, not the administrative
bureaucracy that implements the laws.
Representative Rokeberg reviewed HB 51. He noted that the
legislation defines water discharge and background
conditions; requires the State to speak to mixing zones in
regulation; and clarifies that new state regulations cannot
be more restrictive than federal EPA water quality
standards. New regulations must conform to EPA standards
when those standards are made less restrictive and/or are
eliminated. He observed that if federal EPA standards are
modified there is no mechanism to modify corresponding state
regulations. The legislation would require the Department
of Environmental Conservation to go through the entire
Administrative Procedures Act to lower or eliminate Alaska
water quality standards if federal standards are eliminated
or reduced. The legislation requires the Department of
Environmental Conservation to comply with this provision
during their federally mandated triennial review period. If
a state standard does not conform to its federal counterpart
the Department would implement the process contained in AS
46.03.087. He maintained that the intent is not to create a
burden on the Department. The Department is required to
take action on eliminated or reduced federal regulations
within 90 days. The state regulation must conform to
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federal regulation or go through the process in AS
46.03.087. He observed that the Department will be exempt
from the petitioning provisions of the Administrative
Procedures Act. He added that anyone can request a review
of a regulation. Review must take place within 30 days.
Representative Rokeberg maintained that section AS
446.03.087 allows state regulations to be more stringent
than federal regulations. He stressed that stable water
quality standards are important to investment in interstate
commerce, particularly in the minerals industry. He
maintained that this reflects the will of the House in
regards to state policy. He discussed the hearing process.
He demonstrated that HB 342 received extensive hearings
during the Nineteenth Alaska State Legislature. He pointed
out that the legislation will adopt the volumetric Imhoff
cone method for measurement of settleable solids as
recommended by the Department of Environmental Conservation.
Representative Davies questioned what the bill is trying to
fix or address. Representative Rokeberg replied that the
legislation is an important symbol, that the State is open
for business. It also shows who is going to set state
policy. He emphasized that industry has expressed interest
and support for this type of legislation.
Representative Grussendorf referred to page 4, line 12. He
asked what is expected of the Department of Environmental
Conservation in regards to the requirement for a written
finding to assess the economic and technological feasibility
of a proposal.
Representative Rokeberg asserted that the Department of
Environmental Conservation has adequate personnel to comply
with the provision. The intent is that the Department take
on these elements when drafting regulations. He stated that
many of the requirements of the EPA do not have a technical
method of measurement to meet the published quantitative
number required. He emphasized that "consider" was added at
the request of the Department.
Representative Grussendorf pointed out that the legislation
requires the Department of Environmental Conservation to
"consider and prepare" a written finding. He questioned if
there will be a budgetary commitment to assure that the
agency possess the necessary expertise to implement the
provisions of HB 51. Representative Rokeberg stated that the
Department of Environmental Conservation already has the
technical ability to implement the provisions.
Representative Grussendorf stressed that the written
findings that the Department of Environmental Conservation
is required to prepare must consider the economic and
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technological feasibility. He observed that they are
expected to accomplish this in 90 days or a mutually
agreeable time. Representative Rokeberg clarified that the
Department only has to enter into the process within 90
days. He agreed that the Department should not be asked to
do something that they do not have the capability of
accomplishing. He added that the scope of the required work
does not demand full economic analysis from fully qualified
Ph. D.'s. He stated that the Department should have the
ability to make technological assessments. He acknowledged
that a consultant should be retained for discreet
information or areas the Department is lacking in expertise.
He stated that there would be value for a modest fiscal
note. He observed that there will be some additional
burdens and regulatory undertakings.
Representative Grussendorf summarized that staff do not have
to be experts or Ph. D.'s, but if an applicant is turned
down and challenges the feasibility or economic study by the
Department, then nothing is accomplished. Representative
Rokeberg replied, "not if the applicant's right."
SCOTT THORSON, PRESIDENT, RESOURCE DEVELOPMENT COUNCIL
testified in support of HB 51. He asserted that the
legislation solves a number of problems that have gone
unaddressed for a number of years. He stressed that water
quality issues are key to promoting different types of
resource development in the State. He maintained that the
Department of Environmental Conservation has been unwilling
or unable to address a lot of the concerns. He observed
that, under current law, a mining operation would have to
replace turbid, glacier type water with drinking quality
water. He noted that the legislation addresses this
concern. He stressed that the Resource Development Council
is in strong support of the legislation.
BECKY GAYE, EXECUTIVE DIRECTOR, RESOURCE DEVELOPMENT COUNCIL
spoke in support of HB 51. She stated that HB 342 was a
good bill. She added that HB 51 is a better bill. She
stressed that congruence between the executive and
administrative branches is important on critical choices
facing the State. She maintained that the focus needs to be
on permits and the ability to do business while protecting
state waters for all users. She stressed that congruence
will reduce frivolous lawsuits. She asserted that the
legislation will minimize wasted efforts.
Ms. Gaye noted that there is no state adjustment policy in
regards to the lowering or removal of a federal standard.
There is a federal law that addresses compliance with
stricter federal standards. She spoke in support of an
automatic requirement to adjust state standards when federal
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changes result in less strict standards or the deletion of
federal mandates. She maintained that HB 51 requires the
Department of Environmental Conservation to set
scientifically supportable, detectable standards that are
consistent with existing federal standards and realistic for
Alaska. She stressed that where possible HB 51 gives the
Department of Environmental Conservation statutory authority
and backing for efforts already underway, using background
conditions and mixing zones. It specifically allows for the
State to have stricter standards than federally required.
She maintained that HB 51:
* Provides an efficient change mechanism for the
Department to respond to changes in federal
regulations;
* Allows a definitive process (similar to, but not
as rigorous as the air program) for evaluating
agency conclusions which result in state standards
being set stricter than federal requirements;
* Provides an allowance for discharge waters to
match the quality of the receiving waters; and
* Provides a statutory mandate that mixing zones
will be provided for by regulation.
Ms. Gaye referred to page 2, line 1. She observed that the
Department of Environmental Conservation is given statutory
guidance to continue their investigation of NPDES. She
expressed concern with state implementation of this program.
Ms. Gaye observed that reference to the Clean Water Act was
added on page 2, line 10. She acknowledged that the Clean
Water Act protects more than the requirements contained in
section 3(1).
Ms. Gaye spoke in support of the use of "background
conditions" as contained in the bill.
Ms. Gaye referred to page 1, line 29. She maintained that
subsection (b) assures that federal standards will be
exceeded for shellfish growing areas. She agreed that
shellfish beds should have a higher standard for human fecal
coliform. She noted that the Department "may adopt a water
quality standard or other regulation related to water
quality that is more restrictive then applicable federal
water quality criteria or regulations only after following
the procedures in AS 46.03.087(b).
Ms. Gaye stressed that if they are not in agreement with
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what the Department of Environmental Conservation is doing
then the Resource Development Council will fight in the
public process and court. The written request is only in
response to incorporation of a future reduction or
elimination in water quality. She acknowledged that it
would be a lot of work for the Department to compare
existing state standards to federal standards. She
maintained that there should not be an additional cost for
review of the standards during the triennial review process.
She emphasized that they want to have a scientific
explanation for stricter standards.
Ms. Gaye referred to page 4, lines 10 - 13. She observed
that the Department of Environmental Conservation has
included economic considerations in the regulatory arena.
She emphasized that they want the Department to make a case
for stricter regulations based on scientific methodology.
Co-Chair Therriault discussed the use of "may" on page 2,
line 31. He maintained that the power of the commissioner
to have a higher standard, without going through the
process, is retained.
Representative Davies questioned the status of mixing zones
in regulations. Ms. Gaye stated that there are regulations
regarding mixing zones. She observed that the Department of
Environmental Conservation is working to change mixing zone
regulations. She maintained that there is no statutory
authority in state law. She asserted that the Legislature
should give the Department of Environmental Conservation
statutory authority for mixing zones.
In response to a question by Representative Grussendorf, Ms.
Gaye noted that NPDES is a federal program that can be
assumed at the state primacy level.
(Tape Change, HFC 97-34, Side 2)
Ms. Gaye stated that they would "much rather have everything
here than in region ten." Representative Grussendorf
pointed out that state administration of the NPDES program
would result in a large fiscal note. Ms. Gaye emphasized
the need for debate.
Representative Davies referred to a letter from the EPA to
Michele Brown, Commissioner, Department of Environmental
Conservation, dated 2/14/97 (copy on file). Ms. Gaye stated
that she discussed the issue with someone in the Division of
Air and Water. She stated that she would be willing to
adjust the legislation based on issues raised in the EPA's
letter, "to the extent that we agreed with them."
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Representative Davis noted that there is a large fee to
applicants of NPDES permits. He asked to what degree they
cover the cost.
Ms. Gaye discussed a letter from the Department of
Environmental Conservation, to the House Finance Committee
Co-Chairs, dated 2/20/97 (copy on file). She quoted the
Department of Environmental Conservation as saying on page 3
that: "As a result, this 'special' procedure would come
into play nearly every time the state proposed any water
quality standard or discharge limit, including mixing
zones." She asserted that the Department of Environmental
Conservation is wrong in their assessment. She maintained
that the procedure would only come into play if state
regulation is stricter than federal regulations, if there is
a law that doesn't exist, or if federal regulations change.
She referred to a "closed door" meeting with Governor
Knowles that occurred two and a half years ago regarding the
State's EPA petition on mixing zones. She noted that mixing
zone regulations have not been completed.
NEIL PLESTED, NORTHERN ALASKA ENVIRONMENTAL CENTER,
ANCHORAGE testified via the teleconference network in
opposition to HB 51. He maintained that the legislation is
"blatantly destructive to the health and welfare concerns of
Alaskans." He asserted that the legislation will lower
water quality in Alaska to the lowest standards nationwide.
He alleged that the bill will cripple the Department of
Environmental Conservation's review process. He maintained
that water quality should not be equated to economic
feasibility of any entity. He stressed that water quality
standards should not be sacrificed at any price.
DAN WINN, COMMERCIAL FISHERMAN, HOMER testified via the
teleconference network in opposition to HB 51. He stressed
the importance of clean water to the fishing industry. He
observed that the Washington salmon industry has been
adversely affected by water quality. He commented on
remarks by Representative Rokeberg concerning the public
process.
DENNIS RANDA, ALASKA CHAIRMAN, TROUT UNLIMITED testified via
the teleconference network in opposition to HB 51. He
provided members with written testimony (copy on file). He
emphasized the importance of clean water. He maintained
that drinking water and fish habitat standards do not
equate. He expressed concern with the impact of the
legislation on the Department of Environmental Conservation.
He maintained that mixing zones establish an exclusive use
of the water by a single user. He expressed concern that a
single user group has spoken directly to the Legislature
without input from the other side. He maintained that
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"there has not been a salmon stream anywhere in the world
that has withstood the urbanization of man, along its
banks." He maintained that turbidity standards should be
addressed with a variance. He observed that constituents
trust their representatives to take care of their resources.
He suggested that changes occurring in the Department of
Environmental Conservation address some of the concerns
incorporated in the legislation.
JEFF PARKER, ALASKA SPORT FISHING ASSOCIATION testified via
the teleconference network. He noted that the Association
passed a resolution in opposition to HB 51. He disagreed
with Ms. Gaye's comments regarding application of the
special procedures provisions. He referred to subsection
(c), page 3. He stressed that AS 46.03.085 utilizes the
special procedures contained in AS 46.03.087. He maintained
that a proposal to reduce state regulations below federal
water quality standards would activate the special
procedures. He asserted that the legislation will not
achieve its goal. He maintained that the legislation will
add costs. He asserted that the legislation will not result
in stable state regulations. He stressed that the
legislation will result in frequent, repetitive, multiple,
and over lapping efforts by industry to petition for
regulatory changes that will have to be adopted. He
acknowledged that the legislation is symbolic, but
emphasized that "symbols do not create good law."
PATTY GINGSBURG, REGIONAL CITIZENS' ADVISORY COUNCIL OF
PRINCE WILLIAM SOUND (RCAC) testified via the teleconference
network in opposition to HB 51. She maintained that HB 51
moves the emphasis away from prevention, to a wait and see
approach. She asserted that the legislation puts a much
higher priority on some types of jobs. She maintained that
it relegates the fishing and tourism industries to a distant
second. "Under this bill, state regulators would have to
prove fish are dying in order to set standards higher than
the federal minimum." She asserted that the legislation
takes away the Department's flexibility to address site-
specific needs and issues. Representative Kelly maintained
that Ms. Ginsburg's comments were exaggerated.
Ms. Ginsburg expressed concern regarding aqueous
hydrocarbons. She noted that there is no federal limit on
total aqueous hydrocarbons. She added that it is imperative
that the Department of Environmental Conservation have
adequate funding for administration of the federal National
Pollutant Discharge Elimination System, if the State takes
over the program. She urged the Committee to reject HB 51.
In response to a question by Representative Kelly, Ms.
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Ginsburg observed that current statutes allow the Department
of Environmental Conservation to regulate pollutants if they
could have a detrimental impact. She understood that the
legislation would require that the Department prove a
deleterious effect is actually occurring before a standard
could be changed.
STAN STEPHANS, VALDEZ testified via the teleconference
network in opposition to HB 51. He stated that HB 51 brings
confusion to the process of developing water quality
standards. He maintained that the current process is
effective in bringing agencies, industry, and citizens
together to resolve issues. He asserted that no one
business or combination of businesses have the right to
destroy another for jobs or economic development. He
alleged that the legislation could destroy fisheries and
tourism.
CRAIG MCCORMICK, HAINES CHAPTER, UNITED SOUTHEAST
GILLNETTERS ASSOCIATION testified via the teleconference
network in opposition to HB 51. He emphasized the
importance of the fishing industry and clean water.
MIKE VANNOTE, COMMERCIAL FISHERMAN, HAINES testified via the
teleconference network in opposition to HB 51. He observed
that Chile claims that its salmon is from the "cleanest
waters on earth." He asserted that the fishing industry
employs more people than the oil, gas, timber and mining
industries combined. He stated that a study is needed to
assess the affect on the fishing industry.
In response to a question by Representative Kelly, Mr.
VanNote observed that fishing vessels are not allowed to
leave any oil in the water. Human waste is retained and
pumped out. He spoke against degradation from mixing zones.
He observed that there they cannot process fish with waters
outside of Sitka due to pollution from the mill.
Representative Grussendorf pointed out that sport fisherman
and commercial fisherman agree on the importance of habitat
protection.
Co-Chair Therriault stressed that a balance has to be found.
GREG BISBY, COMMERCIAL FISHERMAN, HAINES testified via the
teleconference network in opposition to HB 51. He stated
that pollutants in mixing zones can be taken into fish.
MIKE SAUNDERS, COMMERCIAL FISHERMAN, HAINES testified via
the teleconference network in opposition to HB 51.
(Tape Change, HFC 97-35, Side 1)
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Mr. Saunders stressed that Alaskan fish are marketed with
the claim that they are taken from pristine waters. He
emphasized that the mining industry can operate without
degradation to the fishing industry.
NORMAN HUGHES, COMMERCIAL FISHERMAN, HAINES testified via
the teleconference network in opposition to HB 51. He
emphasized the importance of clean water. He maintained
that current water standards are working.
ELDON DENNIS, COMMERCIAL FISHERMAN, JUNEAU testified in
opposition to HB 51. He stressed that he is not opposed to
oil or timber development. He insisted that oil and timber
industries not impact the fishing industry in a negative
manner. He maintained that HB 51 will have a negative
impact. He observed the importance of Alaska's marketing
image. He referred to the Kensington project as an example
of how current regulations have worked well. He spoke in
support of site-specific exemptions.
STEVE BEHNKE, EXECUTIVE DIRECTOR, ALASKA WILDERNESS
RECREATION AND TOURISM ASSOCIATION testified in opposition
to HB 51. He alleged that the legislation symbolizes that
the State is open to certain business, that businesses that
result in dirty water will be at the expense of businesses
that require clean water. He stressed that Alaska's
reputation as pristine and unspoiled attracts visitors. He
asserted that the legislation "makes the dirtiest uses of
water the dominate uses." He maintained that commercial
fishing and tourism industries combined are the largest in
the State. He emphasized that the tourism and commercial
fishing industries spend huge sums to market Alaska as a
place where clean water and a pristine environment mean the
highest quality products and experiences. He stressed that
the legislation sends the opposite message.
Representative Kelly quoted from Governor Knowles' 2/11/97
press release: "Common sense tells you that current EPA
standards are unreasonable. The EPA says that it is okay to
drink a glass of water from an Alaskan stream, but if you
pour that water back into the stream you are violating the
law because the level of natural occurring Arsenic is too
high for the federal government." He agreed with Governor
Knowles' statement. He asserted that the legislation is
trying to bring common sense to state regulations.
Mr. Behnke stated that concerns should be addressed through
the ongoing regulatory process. He acknowledged that
standards in regards to Arsenic do not make sense. He
observed that the legislation does more than correct this
problem.
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Representative Davies observed that the Arsenic issue is
being fought on a federal level and state law will not
affect the issue. Representatives Davies and Kelly debated
the reasonableness of state regulations.
KATY HANSEN, EXECUTIVE DIRECTOR, UNITED SOUTHEAST ALASKA
GILLNETTERS ASSOCIATION testified in opposition to HB 51.
She observed that Alaska's image of pristine waters is
important. She suggested that specific problems should be
addressed through regulation. She noted that statutes do
not allow the Department of Environmental Conservation
flexibility to work with industry. She emphasized the
economics of industries currently using the waters. She
stressed that fishing is the number one private employer in
the State. She maintained that fishing, timber and mining
industries can work together as long as habitat is
protected.
DICK MYRON, SIERRA CLUB, JUNEAU testified in opposition to
HB 51. He provided members with a declaration of his
credentials (copy on file). He noted that he is a retired
fishery research biologist. He discovered that flush rate
calculations for the mixing zone in Lynn Canal was in error
by a factor of 10. The flushing rate of Lynn Canal was
incorrectly figured at 20 days. The correct rate is 200
days. He pointed out that agencies are under-funded. He
maintained that the State does not have the staff to
adequately analyze water quality. He asserted that there
are serious impacts from logging occurring on salmon
streams. He asserted that salmon stock will crash if
degradation continues.
SUSAN SCHRADER, EXECUTIVE DIRECTOR, ALASKA ENVIRONMENTAL
LOBBY testified in opposition to HB 51. She observed that
the sponsors of the legislation have stated that:
It is the Legislature's intent that Alaska's water
quality regulations be adopted and implemented in a
credible manner; be based on scientifically measurable
criteria; and be economically feasible to comply with.
Ms. Schrader alleged that HB 51 will not achieve this goal.
She observed that clean water is critical to the economic
prosperity and health of Alaskans. Unlike a majority of
states, Alaska enjoys a reputation of having pristine
waters. She maintained that the resource extractive
industries in Alaska should be willing to meet high water
quality standards designed to protect Alaska's pristine
waters. She observed that the Alaska Environmental Lobby
opposes the bill because it would:
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* Jeopardize the health and welfare of Alaskans and
their ability to protect their water resources by
lowering Alaska's water quality standards to the
lowest standards nationwide;
* The bill will lead to great confusion, delays and
litigation in the permitting process;
* It violates the basic principle of the clean water
act by ignoring the concept of multiple users;
* It introduces a definition of "background
condition" that would make polluted water the
standard for further discharges; and
* The legislation requires the Department of
Environmental Conservation to deal with new, time-
intensive, confusing procedures for administering
water quality standards.
Ms. Schrader observed that the Department of Environmental
Conservation has been subject to budget reductions in the
past several years. She maintained that HB 51 will hand
over the power to determine the quality of Alaska's water to
the federal government. She stated that at a time when
Alaska is attempting to convince the nation of our good
stewardship in order to open up ANWR and NPR-A, HB 51 would
show that the State is willing to compromise our water
quality to placate industry. She asserted that the State's
unique attributes must be protected by unique standards that
can be in excess of federal criteria.
Co-Chair Therriault pointed out that the State is adopting
federal standards. He questioned Ms. Schrader's contention
that the State would receive a "black eye" for adopting the
standards that most of the states live by. If a lower
standard is adopted scientific processes must be met. He
observed that the State must define "pristine" waters.
AL EWING, DEPUTY COMMISSIONER, DEPARTMENT OF ENVIRONMENTAL
CONSERVATION noted that the Department has strong concerns
regarding HB 51. He provided members with a letter from
Commissioner Brown and a letter from the Regional
Administrator of Region 10 of the U.S. Environmental
Protection Agency (EPA) detailing their concerns (copies on
file).
Mr. Ewing maintained that the language of HB 51 seems to
indicate confusion about some of the basics of the Clean
Water Act (CWA). There are three major provisions of the
CWA that are relevant to HB 51. The first has to do with
technology-based standards, the second is focused on water
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quality standards and the third concerns permitting of
pollutant discharges.
Mr. Ewing explained that development of technology-based
standards is the domain of the EPA. The EPA, through
exhaustive examination of available treatment technology on
an industry by industry basis, determines what level of
treatment is technologically and economically practicable.
The EPA is also charged with identifying best available
treatment technology. Out of this examination comes
effluent limits or limits on the concentration of pollutants
that an industry can discharge. The CWA objective is zero
discharge of pollutants, and for a number of industries
technology is available to achieve zero discharge of
pollutants.
Mr. Ewing clarified that technology standards are not based
on the conditions of a particular water body. They are
applicable in all states and territories of the United
States, without regard to the water body to which the
discharge goes. A technology based standard may require the
discharge to be cleaner than the receiving water. Setting
technology-based standards is the domain of the EPA.
Mr. Ewing observed that the CWA gives states the
responsibility for setting water quality standards. Alaska
determines what uses are possible for state waters and sets
standards to protect those uses. The EPA assists in this
effort by providing both numerical and narrative criteria on
which the states can base water quality standards. They
also provide guidance on the process and procedures for
establishing water quality standards. When states fail to
carry out their responsibility for setting water quality
standards, the EPA may prescribe federal standards in lieu
of state standards. That is how Alaska came to be covered
by the National Toxic Rule (NTR), which has created numerous
problems for permitting. He noted that standards and
criteria are two different things. Criteria are a subset of
water quality standards.
Mr. Ewing explained that both technology-based standards and
water quality standards may come into play when permit
limits are set for a particular discharger. If effluent
limits, federally established technology-based limits,
result in a discharge that is as clean or cleaner than the
water quality standards for the water body receiving the
discharge, then nothing more needs to be done. If the
federally established technology-based limits are
insufficient to meet water quality standards, then one of
two things, or a combination of these two things needs to be
considered - a mixing zone may be utilized, or additional
treatment technology may be employed, or a combination of
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the two.
Mr. Ewing maintained that a very serious problem with HB 51,
is that it confuses the concepts and the terminology
associated with water quality criteria, water quality
standards, technology based effluent limits, permitting, and
compliance. He acknowledged that Alaska's water quality
standards are not as good as they could be. He observed
that the Department has a major effort underway to improve
standards.
Mr. Ewing asserted that Governor Knowles has given the
Department of Environmental Conservation the charge to
ensure that standards protect Alaskan waters for all users
and to actively consult with Alaskans in setting those
standards. He maintained that the Department is
aggressively making changes where needed.
Mr. Ewing stressed that after an evaluation of regulations
regarding suspended sediments and petroleum hydrocarbon
particulates, the Department concluded that no changes are
appropriate.
Mr. Ewing observed that the Department is rewriting their
mixing zone regulations in an effort to make these
regulations understandable, workable, and adequately
protective of Alaskan resources. He noted that the
regulations will have an additional period of public review.
He stated that negotiations with EPA have resulted in an
agreement by EPA to withdraw Alaska from coverage by 19
acute aquatic criteria. When withdrawal is completed,
Alaska will be able to utilize site specific procedures.
Mr. Ewing explained that Arsenic limits are also currently
prescribed by the NTR. The Department has focused on
freeing Alaska from "this overly restrictive" federal limit.
He observed that Commissioner Brown has written letters and
discussed this issue with regional and national EPA leaders.
In addition, she has written in support of an Alaska Miners
Association petition to have this limit removed. He
observed that Governor Knowles signed a petition to the
Administrator of EPA demanding that the NTR criteria, which
is 277 times more restrictive than Alaska's drinking water
standard, be lifted until research has been completed to
determine an appropriate limit. The Department expects to
see results from these efforts.
Mr. Ewing observed that Governor Knowles sent a letter to
1200 Alaskans asking them to identify the most critical
water quality standards issues having an impact on
permitting, resource protection or compliance. That survey
identified 12 issues including such things as petroleum
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hydrocarbons, total dissolved solids, coliform bacteria, and
procedures for setting site specific standards and
reclassifying water bodies. Working in conjunction with a
water quality advisory group, the Department of
Environmental Conservation has teams of people working on
each of these issues with the charge to develop
scientifically sound solutions. The Department expects to
bring all twelve of these issues to resolution over the next
10 months.
He emphasized that the Department's goal is to carefully
protect Alaska's water resources, but at the same time to
remove unnecessary obstacles and expense for development.
He asserted that the Department is committed to partnership
with industry.
He observed that resources available to the Department of
Environmental Conservation to accomplish these goals are
very limited. He maintained that the Department can achieve
their goals if they do not have obstacles. He asserted that
HB 51 is an obstacle. He alleged that HB 51 would not help
the Department to remove Alaska from the NTR or to be
released from coverage by the federal arsenic limit, which
is 277 times more restrictive than Alaska's drinking water
standard.
He emphasized that HB 51 creates new and costly bureaucratic
procedures which will divert scarce resources.
In response to a question by Co-Chair Therriault, Mr. Ewing
observed that the Department of Environmental Conservation
has approved dozens of mixing zones. Co-Chair Therriault
asked if the Department is philosophically opposed to having
the authority for mixing zones in statute. Mr. Ewing noted
that states have been allowed to create mixing zones as a
matter of discretion in federal law, based on site-specific
additions and science. He cautioned that statutory
authority may create problems.
In response to a question by Co-Chair Hanley, Mr. Ewing
noted that the Department does not have state or federal
authority to create mixing zones. He maintained that mixing
zones are in the discretionary authority given to states, by
interpretation, from the federal government. He did not
think that the Department would have a chance of losing a
situation due to the lack of authority. The State has not
been challenged in regards to implementation of mixing
zones.
Co-Chair Hanley observed that regulations have to be
supported by state or federal authority. Mr. Ewing
clarified that there is no specific authority under state or
15
local law. He stated that the authority goes back to state
and federal law under the broader state water laws.
In response to a question by Representative Grussendorf, Mr.
Ewing agreed that the legislation shifts the burden of
proof. He stated that it is not clear if mixing zones are
mandatory under HB 51. He expressed concern with the
processes the Department would have to follow. He stressed
that the processes will divert the Department's attention
from other issues.
(Tape Change, HFC 97-35, Side 2)
Mr. Ewing stated that HB 51 would put an additional burden
on the Department.
Co-Chair Hanley summarized that the regulation process
justifies the adoption of standards. Mr. Ewing explained
that the Department uses federal criteria and guidance in
setting state water quality standards. He reiterated that
the State does not have the resources for economic analysis
that the federal government does. He acknowledged that the
Department looks at impacts and costs, but not to the extent
that is contemplated by the legislation.
Co-Chair Hanley summarized that if the State adopts stricter
standards than there is some justification. There could be
a biological or chemical problem, or a physical condition or
characteristic of the area that requires stricter standards.
Stricter standards can also be adopted to protect the human
health, welfare or propagation of fish and wildlife. He
asked what the Department of Environmental Conservation
would be required to do that they are not currently doing.
Mr. Ewing referred to the requirement that the Department
review all state regulations in regards to federal
standards. He asserted that this requirement would create
an enormous additional workload. He stated that the
Department would prefer to tackle problems on a priority
basis as they are brought to the Department.
Co-Chair Hanley noted that the Department has submitted a
$273 thousand dollar fiscal note to perform the review. Mr.
Ewing acknowledged that it is the policy call of the
Legislature to determine if the review is worth the time.
He stated that the Department does not think it is worth the
time. He stressed that problems are resolved when they are
brought forward. He maintained that looking for problems is
a waste of time and resources.
Co-Chair Hanley questioned what specific problems could be
identified that the Department would not normally find. Mr.
16
Ewing responded that the provision does not improve the
basic process, "it adds process and procedure to no
particular end."
HB 51 was HELD in Committee for further consideration.
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