Legislature(2007 - 2008)BELTZ 211
01/25/2008 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB151 | |
| HB7 | |
| HB149 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HB 149 | TELECONFERENCED | |
| += | HB 7 | TELECONFERENCED | |
| = | HB 151 | ||
CSHB 149(RES)-POLLUTANT DISCHARGE PERMITS
CHAIR FRENCH announced the consideration of HB 149. [Before the
committee was CSHB 149(RES).]
2:18:31 PM
LARRY HARTIG, Commissioner, Alaska Department of Environmental
Conservation (DEC), described HB 149 as a clean-up bill. Several
years ago the legislature passed a bill directing DEC to apply
to EPA (Environmental Protection Agency) to transfer primacy,
which is the authority to issue National Pollutant Discharge
Elimination System (NPDES) permits in Alaska. He explained that
the federal Clean Water Act (CWA) requires that certain
dischargers are required to have an NPDES permit and then they
must comply with the terms of the permit.
COMMISSIONER HARTIG explained that EPA has identified several
areas where state statutes must be changed in order for the
state to get primacy The concern is that Alaska law must be at
least as rigorous as the federal law. The Palin Administration
recognizes the importance of having local decisions made with
local input and oversight and is strongly supporting HB 149.
2:23:17 PM
COMMISSIONER HARTIG explained that primacy does not change the
standard for making decisions about permits. In fact, the
permits that EPA currently issues are based on state approved
water quality standards and DEC certifies that those permits
comply with state law. When DEC assumes primacy it will base
permit decision on those same water quality standards. Also, EPA
will continue to provide oversight once DEC begins to administer
the program.
COMMISSIONER HARTIG stated that DEC's objective is to have an
exemplary program that's based on the best science, the best
public process, and founded on good public policy.
2:24:55 PM
CAMERON LEONARD, Assistant Attorney General, Civil Division,
Environmental Section, Department of Law (DOL), Fairbanks, drew
attention to several documents in the packet that might be
helpful: "NPDES Program Approval Criteria" and "Sectional
Analysis of CSHB 149(RES). He explained that the statutory
changes will make the state program at least as stringent and
comprehensive as the federal law, which is necessary to receive
EPA sanction.
2:26:58 PM
MR. LEONARD said he will give a sectional analysis. Sections 1
and 5 address the kinds of monitoring, sampling, and reporting
requirements that can be placed within or outside a discharge
permit. Section 1 gives DEC authority to require monitoring,
sampling, and reporting outside the permit that is equivalent to
Section 308 of the federal Clean Water Act (CWA). Section 5
deals with monitoring, sampling, and reporting within a permit.
The state law will be equivalent to the federal law with regard
to what can be put in a permit.
MR. LEONARD said Section 2 addresses differences in terminology.
The CWA uses the term "discharges" and Alaska Statute uses a
different term, which caused EPA concern about equivalent
authority. To address the concern, the phrase "or discharge" is
added to Alaska Statute to ensure that the scope of DEC's
permitting authority is as broad as the federal law. Also, the
last sentence in this section is deleted because it is redundant
and inconsistent. Discharges into publicly owned treatment works
is addressed in Section 4.
Section 3 simply clarifies that DEC makes the decision about
which form of authorization to use for any given discharge or
activity.
2:31:02 PM
MR. LEONARD pointed out that Section 4 changes three current
exemptions in AS 46.03.100(e). EPA was concerned that the
federal exemptions were not as broad so the state exemptions
were tightened. The first change in .100(e)(1) deletes reference
to "sewerage system" and inserts "publicly owned treatment
works" to match the federal exemption.
CHAIR FRENCH clarified that neither EPA nor DEC would require a
permit for discharge into a publicly owned treatment plant.
MR. LEONARD agreed.
CHAIR FRENCH asked if there's really a difference or if it's a
matter of semantics.
MR. LEONARD explained that under state law the term "sewerage
system" is defined more broadly than "publicly owned treatment
works." That could be interpreted to include a pipe running from
your house to the river so it was probably too broad.
CHAIR FRENCH asked if he would say that this is more restrictive
than under current state law.
MR. LEONARD said there's no question about that.
2:33:23 PM
MR. LEONARD said the second change occurs in .100(e)(4) and
relates to incidental discharges such as water from trenching,
drilling, or ditching. It's referred to as the incidental
discharge exception, but basically there was only an exemption
if the activity did not result in a discharge into surface
waters. Current state law uses the term "surface water of the
state" and federal law uses "waters of the United States." The
phrases are similar but not identical, so this ensures that the
state exemption isn't any broader than what is allowed under
federal law.
The third change occurs in .100(e)(7) and relates to discharge
of munitions. Generally, the discharge of munitions is exempted
from the requirement of getting state authorization unless it
results in a discharge into water. To match federal law the
phrase "unless it results in a discharge into waters of the
United States" is added.
CHAIR FRENCH asked if this will impact the enormous amount of
military training exercises that occur around Anchorage and the
Interior.
MR. LEONARD replied it's really just a change in the permitting
agency. Applications will go to the state instead of EPA.
2:35:28 PM
MR. LEONARD reminded members that Section 5 is linked to Section
1. It expands DEC's authority to include monitoring and
reporting requirements in permits to be equivalent to EPA
authority under the CWA.
He explained that Sections 6 and 7 clarify that the state's use
of the term "waste material" includes "pollutants" as defined in
the CWA.
MR. LEONARD said Section 8 adds a new subsection (i) to AS
46.03.790. Current state law bases its criminal program for
environmental issues on criminal negligence, which is higher
state of mind as defined in the statute. EPA didn't agree with
that because the state is requiring a higher level of
culpability to do criminal prosecutions than is required under
the CWA. For purposes of the APDES program only, criminal
enforcement is based on ordinary negligence.
MR. LEONARD said Section 9 provides an immediate effective date.
2:38:05 PM
CHAIR FRENCH asked where lawsuits would take place if a citizen
is unhappy about a decision DEC made about issuing a permit.
MR. LEONARD explained that an appeal of a permitting decision
has two stages. Appeals of DEC permits are referred to the
Office of Administrative Hearings (OAH). Following the hearing,
AOH typically makes a recommendation to the commissioner of DEC
who then makes a final decision on the permit. If the citizen is
still unhappy, he or she could appeal to the state superior
court and ultimately to the state supreme court.
The other kind of litigation in this program is called a citizen
suit. That's when a citizen sues for violation of an existing
permit. Those cases would continue to go to federal district
court and those decisions are appealed to the Ninth Circuit.
CHAIR FRENCH asked why a citizen would be forced to go to
federal court when a state agency issued the permit and is
overseeing the program.
2:40:13 PM
MR. LEONARD replied those are the provisions of a citizen suit
under the CWA. He further explained that a suit can't be brought
if the agency that issued the permit is already enforcing it. So
if EPA attorneys bring enforcement action on a federally issued
permit a citizen suit is precluded. It will work the same with
the state. If DEC is already enforcing the terms of a permit
that it issued, the suit will be in state court and that
precludes a citizen suit in federal court. He added that EPA
attorneys have said that most citizen suits are for minor
violations and EPA usually isn't a participant.
SENATOR WIELECHOWSKI asked how many cases have been brought
under the first scenario that in the future will be under OAH.
MR. LEONARD said according to a Region 10 attorney, there are
very few permit appeals that go to the federal environmental
appeals board (EAB) and fewer yet to the Ninth Circuit. There's
not a high volume of appeals on the state side either, he added.
SENATOR WIELECHOWSKI highlighted the zero fiscal note from the
Department of Law and asked if this wouldn't have fiscal
ramification.
MR. LEONARD replied this bill doesn't affect the resources that
DOL will have to invest in the program.
SENATOR WIELECHOWSKI asked if the DEC and EPA fine structures
are comparable.
MR. LEONARD explained that the difference is that EPA has the
authority to assess a penalty administratively and DEC has to go
to court. However, that's not an obstacle to program approval
because the amount of damages DEC can recover satisfies EPA
requirements. He agreed to provide the numbers.
SENATOR WIELECHOWSKI again highlighted the fiscal notes and said
he hopes they adequately reflect the additional legal work.
Referring to testimony in the other body, he asked if DEC
intends to list the same requirements within the permit that EPA
lists or if some of those requirements would be listed outside
the permit.
MR. LEONARD referred to his discussion about the monitoring and
reporting requirements and said that's the only area that the
state has said it may list outside the permits. The testimony in
the other body reflected the belief that information that wasn't
tied to compliance with effluent limits could inappropriately be
subject to citizen suit enforcement if it was listed within the
permit.
2:45:57 PM
SENATOR WIELECHOWSKI summarized that when the state assumes
primacy there will be less monitoring and reporting issues
within the DEC permit.
COMMISSIONER HARTIG stepped in to clarify that there will be no
difference between an EPA and a DEC issued NPDES permit in terms
of the requirements for meeting water quality standards.
Likewise, there will be no difference in the monitoring and
reporting requirements for compliance with those water quality
standards. The difference is that DEC wants more flexibility to
ask permit holders to provide additional data. Currently DEC and
EPA can ask for more data, but EPA does it under the permit. He
described a hypothetical situation of a discharger in a remote
area in Alaska that is asked to collect additional information.
The permit holder knows that the additional data doesn't relate
to compliance with any law. Although they're willing to collect
the data, agreeing to do so within the permit is worrisome
because if they miss even one collection they could be subject
to a citizen suit. Under the CWA there is strict liability so
the fact that the weather was too bad to collect the data one
day is not a defense. The permit holder could be exposed to a
potentially severe penalty.
COMMISSIONER HARTIG said the state wants the flexibility of
putting the request in a separate agreement that's outside the
permit. If anything it increases monitoring because the permit
holder is more likely to agree to enhanced monitoring if they
know it won't expose them to liability that they would not
otherwise have.
2:49:15 PM
CHAIR FRENCH said the obvious policy choice if whether the state
wants control over its own permitting. The potential tradeoff is
whether the entity that assumes control is as tough as the EPA.
The next administration may view these matters differently. He
asked if any state has returned primacy to the EPA.
COMMISSIONER HARTIG said he knows that Alaska is one of five
states that does not have primacy, but he doesn't know the
answer to the specific question.
MR. LEONARD said he isn't aware of any state that has given it
back.
2:50:38 PM
SENATOR THERRIAULT referred to work he did years ago to take
over the 404 discharge permits. He said he doesn't recall any
state that ever gave that authority back. He also worked on this
legislation initially and in doing that research he doesn't
recall any state that gave primacy back.
SENATOR McGUIRE highlighted the document titled "NPDES Permits"
and read the following:
Under federal regulations, any state permit program
must be as stringent as EPA's program in order for EPA
to approve it. That means that the state must require
permits for the same operations as does EPA. Stated
another way, Alaska cannot exempt from permit coverage
anyone who needs a federal permit.
SENATOR McGUIRE said that although it appears that states have
never given back control, any administration that wasn't doing a
good job would attract the attention of lawmakers or the federal
government. "I like the fact that the EPA has to continue to
approve it," she added.
2:52:12 PM
SENATOR WIELECHOWSKI asked if there are requirements for DEC to
consult with other agencies such as U.S Fish and Wildlife or
National Marine Fisheries over critical habitat issues or
endangered species listings.
MR. LEONARD explained that most of the federal consultation
duties do not apply to a state permit decision. However, most
major projects that require an NPDES permit also require some
other federal permit so consultation will go on base on those
permits.
SENATOR WIELECHOWSKI asked if that won't result in more third-
party lawsuits.
MR. LEONARD explained that DEC is required by regulation to send
copies of draft permits to all the relevant federal agencies.
Only time will tell if more citizen suits will be brought.
COMMISSIONER HARTIG added that the basic requirements of the
Endangered Species Act still apply. Although the Section 7
requirement that one federal agency consult another federal
agency doesn't apply, the taking prohibition under Section 9 is
there. It would be a violation of the federal act if the
permitted action resulted in the taking of an endangered
species. DEC doesn't want to set anyone up to violate the
Endangered Species Act. Currently the APDES workgroup is
reviewing a guidance document that will be available to the
public in several weeks. It discusses communication with federal
agencies, local communities and individuals to assure everyone
that nothing will be lost when the state gets primacy. Federal
agencies, including the EPA, will review that document. He
offered to share it with the committee.
2:55:39 PM
COMMISSIONER HARTIG said his last point is that the EPA has
oversight on each permit, not just the overall program. It has
its own memorandum of agreement established with the federal
agencies that DEC consults with under essential fish habitat or
the Endangered Species Act. It establishes to how EPA will
review the state's permits and consult with the agencies. It
also sets out the procedure if it is disgruntled with a proposed
permit action.
SENATOR WIELECHOWSKI reiterated the importance for having
guidelines in place to protect the state from lawsuits. Little
or no consultation increases the likelihood of lawsuits, he
said.
SENATOR THERRIAULT asked if he is specifically referring to
consultation with federal agencies.
SENATOR WIELECHOWSKI said yes; the EPA is required to consult
with those federal agencies, but DEC doesn't have that
requirement.
Commissioner HARTIG relayed that DEC provides draft copies of
all its permits to the agencies directly. They can comment
directly to DEC or they can work through EPA. He reiterated that
EPA has the authority to veto DEC permits.
2:57:31 PM
SENATOR HUGGINS asked if this impacts DEC's role at Pebble Mine.
COMMISSIONER HARTIG said Pebble is on the radar, but it's a bit
far off. The timeline is that the state will hopefully get
primacy about a year from now. Then there will be a three-year
phase-in during which time the state will address the less
complicated permits first. Unless the Pebble application comes
in 3-4 years from now, it's more than likely that the EPA will
write that permit.
2:59:07 PM
SENATOR HUGGINS asked if any individuals or organizations will
have "their hair on fire" over DEC receiving this authority.
COMMISSIONER HARTIG acknowledged that some people have expressed
concerns and those are being addressed in various ways including
the guidance document. For example, that document calls for
consultation with tribes. Although some are concerned that the
EPA is more rigorous than the state, he agrees with Senator
McGuire. If people don't respect the job DEC is doing, he firmly
believes that the legislature, the EPA, and the courts will do
something about it.
3:00:58 PM
CHAIR FRENCH commented that it says something that a long list
of environmental groups has not signed up to testify today. He
thanked Commissioner Hartig and announced that he would hold HB
149 in committee.
| Document Name | Date/Time | Subjects |
|---|