Legislature(1997 - 1998)
02/27/1997 01:45 PM House FIN
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
HOUSE BILL 51
"An Act relating to the Department of Environmental
Conservation."
Co-Chair Therriault reminded Committee members that a MOTION
had been left pending on Amendment #13 from a previous
meeting. Representative J. Davies WITHDREW Amendment #13
and Amendment #8. [Attachment #13 & #8]. He noted that the
bill's sponsor, Representative Rokeberg, had agreed to work
with him at a future date on those two amendments. There
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being NO OBJECTION, the amendments were withdrawn.
Representative Davies repeated that Amendments #8 & #13 were
the most important issues of the legislation and would most
definitely be addressed.
A new Amendment #1 was distributed to Committee members.
Representative J. Davies MOVED to adopt the new Amendment
purpose of discussion. Representative Davies spoke to the
amendment, stating that it was not State policy to enact
laws and regulations even if they were scientifically based.
He specified that the "policy" should be to protect human
health and habitat.
REPRESENTATIVE NORMAN ROKEBERG requested the Committee to
divide the amendment into two parts, noting that he could
support the first portion of the amendment, although, he
thought that portion (B) was the intent language of the
legislation and had been addressed in the body of the bill
on Page 2, Line 13. That section references adoption of
water quality standards in the State, and the
responsibilities of Department of Natural Resources (DNR) to
insure that human health and wildlife be taken into
consideration.
Co-Chair Therriault MOVED to divide the question. There
being NO OBJECTION, it was divided. Co-Chair Therriault
MOVED to adopt Section (A) of Amendment #1. There being NO
OBJECTION, it was adopted. Co-Chair Therriault asked if
there was objection to adopting the language in Section (B)
of Amendment #1. Representative Kelly OBJECTED.
Representative Rokeberg reiterated that the proposed
language would confuse interest expressed in the intent
language. Representative J. Davies pointed out that the
amendment addresses the area in the first sentence of the
bill, State policy. He suggested that the amendment would
clarify the policy purpose.
A roll call vote was taken on the MOTION to adopt Section
(B), Amendment #1.
IN FAVOR: Grussendorf, Moses, J. Davies, G. Davis
OPPOSED: Kelly, Kohring, Martin, Mulder, Foster,
Therriault
Representative Hanley was not present for the vote.
The MOTION FAILED (4-6).
Representative J. Davies MOVED to adopt Amendment #2.
[Attachment #2]. Co-Chair Therriault OBJECTED for the
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purpose of discussion. Representative Rokeberg noted that
he did not object to the amendment. Co-Chair Therriault
WITHDREW the OBJECTION. There being NO further OBJECTIONS,
Amendment #2 was adopted.
Representative J. Davies MOVED to adopt Amendment #3.
[Attachment #3]. Co-Chair Therriault OBJECTED.
Representative Rokeberg noted that he did not object to the
amendment. Co-Chair Therriault WITHDREW the OBJECTION.
There being NO further OBJECTIONS, Amendment #3 was adopted.
Representative J. Davies WITHDREW Amendments #4, #5 and #6.
[Attachments #4, #5, #6].
Representative J. Davies MOVED to adopt Amendment #7.
[Attachment #7]. Co-Chair Therriault OBJECTED for the
purpose of discussion. Representative J. Davies explained
that Amendment #7 would simply change the amount of time
that the Department has to respond to the initiation of a
procedure and response to a request.
Representative Rokeberg objected to the amendment. He
pointed out that concern had been addressed in subsection
[C], exempting any applicant from petitioning under the
Administrative Procedures Act. He pointed out that the 90
days was the agreed time needed to initiate the process.
Subsection [C] only comes into play in "reduction in" or
"elimination of" federal water quality standard criteria for
regulations. Representative Rokeberg suggested that the
section was prospective. That portion of the bill resulted
from the transition review by the Department, which in the
past, had taken up to four years to make some of the
corrections. If the federal government were to change any
provisions of the Clean Water Act and/or the regulations
relating to it, that section would allow an applicant to
make a request, the reduction in that regulation or the
complete elimination by the federal government. Given the
language of the bill, following the 90 day period, the
Department would be responsible to start the process.
Co-Chair Therriault pointed out that Page 2, Line 11, would
initiate the regulatory review process. Representative
Grussendorf interjected that the Department would then have
more responsibilities.
ALVIN EWING, DEPUTY COMMISSIONER, DEPARTMENT OF NATURAL
RESOURCES, commented that it was not the length of time, but
the issue of the new process which makes the legislation
prohibitive. Currently, the Administrative Procedures Act
allows companies to come forward to address their concerns.
Procedures are currently in place. He stressed that the
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role of the federal government would be to provide guidance,
which differs from the responsibilities of the Department
and the State.
Mr. Ewing emphasized that the process recommended through
the legislation was "flawed" and that the bill will create
an enormous work load for the Department. In regard to the
amendment, he stated that if a choice had to be made, the
Department would choose 180 days, but reiterated that the
process is not necessary.
A roll call vote was taken on the MOTION.
IN FAVOR: Moses, J. Davies, Grussendorf
OPPOSED: Kelly, Kohring, Martin, Mulder, G.
Davis, Foster, Therriault
Representative Hanley was not present for the vote.
The MOTION FAILED (3-7).
Representative J. Davies MOVED to adopt Amendment #9.
[Attachment #9]. Co-Chair Therriault OBJECTED for the
purpose of discussion.
Representative Rokeberg suggested that the amendment was
redundant and unnecessary. An applicant coming forward
would be required to submit their reasons and basis for
them. Scientific and economic aspects only come into "play"
if the Department chooses to make it a more stringent
regulation. Representative Mulder asked if there was any
other reason to make the request. Representative Rokeberg
pointed out that only subsection [C] would be addressed in
the amendment, and only if there was a reduction or
elimination in the federal government standard.
Representative J. Davies advised that the "process" would
relate to what the Department was responsible for "finding"
addressed on Page 4, Lines 11 & 12. He stated that
Amendment #9 specifies that when the request is made, the
change would be in the criteria, either a reduction or
elimination, which by definition would be a "scientific"
change. The economic portion would be the "new" section.
When an industry requests the State to change standards, it
would help the process to have the industry specify the
economic advantages. Representative Davies concluded that
step would facilitate the process.
Co-Chair Therriault suggested that if the federal standard
was discontinued, even if the State continued industry to
require it without justification, an automatic economic
reason would exist each time. Representative J. Davies
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disagreed, suggesting that it would not necessarily be
automatic. In some situations, the existing work could cost
money; the Department could address that concern without
changing the standard of the State. Just because the
federal government changes policy, the State will not
necessarily follow suit. He stressed that the more
information the Department has when the request is made, the
easier it would be to solve the problem.
Representative G. Davis spoke to the "unknown" and the
complication of those changes, suggesting that the amendment
would have merit.
A roll call vote was taken on the MOTION.
IN FAVOR: Moses, J. Davies, G. Davis, Grussendorf
OPPOSED: Kohring, Martin, Mulder, Foster, Kelly,
Therriault
Representative Hanley was not present for the vote.
The MOTION FAILED (4-6).
Representative J. Davies MOVED to adopt Amendment #10.
[Attachment #10]. Co-Chair Therriault OBJECTED for the
purpose of discussion.
Representative J. Davies explained that the amendment would
delete subsection [D], Page #3. He believed that section
determines what constitutes a measurement standard. He
stressed that the Department is competent in deciding what
an adequate test is and that it should not be submitted to
the Environmental Protection Agency (EPA). Representative
Rokeberg objected to the amendment.
BECKY GAYE, (TESTIFIED VIA TELECONFERENCE), RESOURCE
DEVELOPMENT COUNCIL (RDC), ANCHORAGE, testified that the EPA
approved methods are what the industry wants, knowing that
it could be approved in advance. She recommended not to
delete that section. The boundary of method should be
approved by EPA. If the State does not want to use EPA,
they would be required to reference the following page,
subsection [3]. Representative Kelly asked if the situation
would be in jeopardy by not having the approval in writing.
Ms. Gaye replied that whether it was in writing or not was
the concept of the amendment. Methods currently exist on
the books.
A roll call vote was taken on the MOTION.
IN FAVOR: Moses, J. Davies, Grussendorf
OPPOSED: Martin, Mulder, G. Davis, Foster, Kelly,
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Kohring, Therriault
Representative Hanley was not present for vote.
The MOTION FAILED (3-7).
Representative J. Davies MOVED to adopt Amendment #11.
[Attachment #11]. Co-Chair Therriault OBJECTED for the
purpose of discussion. Representative Davies noted that
subsection [E] specifics that the Department use the volume
metric off-cone method, pointing out that they do use it at
this time.
Representative Rokeberg responded that the cone is a simple
method of measurement which is good to use in the field.
There has been a lot of study regarding that concern. The
Department issued "findings" that they should use that
method, although, it has not been adopted into specific
regulations. Representative Rokeberg felt that the language
provided all the necessary flexibility and would be the EPA
recognized standard of measurement.
Representative J. Davies could not believe that the State
would put into statute a requirement that the Department
stay "lock-step" in with the federal government on any
issue. The in-lock cone is the measurement choice used at
this time. He observed that might not be true in the future
and questioned why the State would lock in statute something
that should be a regulatory issue. Techniques change and
that type of detail would not be good policy in statute.
(Tape Change HFC 97-43, Side 2).
Representative Mulder questioned if another alternative was
available. Representative Kelly replied that alternatives
are not the problem. He stated that the bill addresses the
leeway given to the experts referenced to by Representative
Davies, suggesting that current language was too broad.
A roll call vote was taken on the MOTION.
IN FAVOR: Moses, J. Davies, Grussendorf
OPPOSED: Mulder, G. Davis, Foster, Kelly,
Kohring, Therriault
Representatives Martin and Hanley were not present for the
vote.
The MOTION FAILED (3-6).
Representative J. Davies MOVED to adopt Amendment #12.
[Attachment #12]. Co-Chair Therriault OBJECTED for the
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purpose of discussion. Representative J. Davies explained
that the amendment would address the difference between the
biochemical and physical conditions, indicating that they
are different from those conditions upon which federal
standards are based. He believed that the intent was to
certify a change, if any of the conditions were found. The
language of the bill requires that all three exist, the
biological, chemical and physical conditions.
Representative Davies recommended replacing the "and" with
"or".
Representative Rokeberg replied that these conditions are
what exist in the entire world. The amendment would allow
the Department to consider everything, in case that they
would want to make the standard more stringent. He
suggested that it would be to the benefit of the Department
to keep the "and".
Representative J. Davies pointed out that "or" remained in
the body of the legislation in reference to the biological
and chemical discharge characteristics. Representative
Mulder suggested that the argument was one of semantics. He
agreed that a full range of options should be available.
Mr. Ewing stated that "or" would provide more latitude than
"and". The use of "and" would require that the Department
demonstrate each of the points. Committee members discussed
the semantic differences between using "or" or "and".
Co-Chair Therriault WITHDREW the OBJECTION to adopt
Amendment #12. Representative Foster proceeded to OBJECT.
A roll call vote was taken on the MOTION adopt Amendment
IN FAVOR: Mulder, J. Davies, G. Davis,
Grussendorf, Kelly, Moses, Therriault
OPPOSED: Foster, Martin, Kohring
Representative Hanley was not present for the vote.
The MOTION PASSED (7-3).
Co-Chair Therriault noted that Amendment #13 had been
WITHDRAWN by Representative J. Davies. [Attachment #13].
Representative Kelly corrected Amendment #14, on Page 2,
Line #4, deleting "and physical conditions;" and the
information on Page 2, Line #5 from the amendment.
[Attachment #14]. There were no objections to the changes
recommended by Representative Kelly.
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Representative Kelly MOVED to adopt the changed Amendment
discussion.
Representative Kelly noted that under current statute,
statutory authority has been given to the Department of
Environmental Conservation in stream classification. He
pointed out that sometimes the condition of the water is at
a lower standard than the conditions established as "uses"
in the regulations. The amendment would establish that the
natural occurring condition would establish the water
standard.
BRUCE CAMPBELL, STAFF, REPRESENTATIVE PETE KELLY, discussed
the deletion of the language "discharge" standards. That
language would establish a link with language created by
EPA.
Co-Chair Therriault WITHDREW his OBJECTION to adopting the
amendment. There being NO further OBJECTION, it was
adopted.
Co-Chair Therriault spoke to the new departmental fiscal
notes pointing out that the fiscal impact had been reduced
since the initial legislation. He stated that the initial
notes were contingent on Section #2, which had become
"permissive" language, thus, reducing the DEC fiscal note.
GERON BRUCE, LEGISLATIVE LIAISON, DEPARTMENT OF FISH AND
GAME, commented on the fiscal impact to the Department of
Fish and Game. Co-Chair Therriault asked if the amendments
adopted by the Committee would increase the fiscal pressure
to that Department. Mr. Bruce stated they would not.
Representative Foster MOVED to report CS HB 51 (FIN) out of
Committee with individual recommendations and with the
accompanying fiscal notes. Representative J. Davies
OBJECTED.
He voiced appreciation to Representative Rokeberg for
working with the minority members of the Committee.
Representative Davies stated that as the bill currently
exists, there are substantial problems and that he would not
vote to move it out of Committee because he felt it was not
in a passable form.
A roll call vote was taken on the MOTION.
IN FAVOR: Foster, Grussendorf, Kelly, Kohring,
Martin, Mulder, Therriault
OPPOSED: J. Davies, Moses
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Representatives G. Davis and Hanley were not present for the
vote.
The MOTION PASSED (7-2).
CS HB 51 (FIN) was reported out of Committee with a "do
pass" recommendation and with fiscal notes by the Department
of Fish and Game and the Department of Environmental
Conservation.
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