Legislature(2007 - 2008)BELTZ 211
03/28/2008 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB183 | |
| HB149 | |
| HB286 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 149 | TELECONFERENCED | |
| + | HB 286 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 183 | ||
HB 149-POLLUTANT DISCHARGE PERMITS
CHAIR FRENCH announced the consideration of HB 149. Before the
committee was CSHB 149(RES). The bill was heard previously.
1:41:05 PM
RON WOLFE, Natural Resource Manager for Sealaska Corporation,
said that Sealaska has significant interest in 22 log transfer
facilities (LTF) in Southeast Alaska, all of which are covered
by a general National Pollutant Discharge Elimination System
(NPDES) permit. For years Sealaska has supported state
assumption of the NPDES program just as 45 other states have
done.
The three issues regarding NPDES primacy are whether the Alaska
Department of Environmental Conservation (DEC) may be a less
trustworthy steward of Alaska's waters than the Environmental
Protection Agency (EPA); whether DEC personnel have the
qualifications to administer the program; and Sealaska's comfort
level as a federally-recognized Indian tribe regarding the
degree of consultation it will receive if DEC assumes primary
for the NPDES program.
To illustrate the DEC commitment to protecting water quality he
compared provisions of the LTF permits that were inserted by EPA
and those that were imposed by DEC. The permits are intended to
limit bark on the ocean floor as logs are transferred for
shipment by sea. EPA permit conditions are the typical
operational restrictions found in any NPDES permit, while DEC
created a plan process that forces operators to begin
remediation of bark accumulation at very low thresholds.
1:43:52 PM
MR. WOLFE said DEC personnel are qualified to regulate LTF
operations because of their on-the-ground knowledge. DEC
regulators have made a great effort to visit the LTFs, examine
the operations, and carefully review water quality around the
facilities. In contrast, gaining field experience with Alaska
LTFs has never been an EPA priority. That's understandable given
the significant water quality issues in this region. When
Sealaska's LTF permits were renewed, EPA contracted with DEC to
draft the permits.
1:45:38 PM
Finally, although Sealaska has always had the opportunity to
comment on EPA proposals, that federal agency has never sought
tribal consultation. In contrast, DEC has always sought Sealaska
views on policy initiatives affecting Southeast Alaska at the
earliest stages of those proposals. Oftentimes Sealaska's views
have not prevailed, but it has always felt that DEC was very
mindful of the need to bring affected tribes into the policy
development process. DEC has not relegated Sealaska to the role
of reacting to policy decisions through general public comments.
1:46:31 PM
KATHIE WASSERMAN, Executive Director, Alaska Municipal League
(AML), said the AML has submitted written testimony supporting
HB 149. She explained that when she became the mayor of Pelican
she learned that their NPDES permit had expired six years ago,
but the EPA had never contacted the city. When she contacted EPA
it became clear that they knew nothing about small remote Alaska
communities. DEC helped Pelican get the permit back on track. As
she said in her letter, there are some concerns with DEC, but at
least it has a process and everyone knows who to call and talk
to. AML is in favor of primacy going to the State of Alaska, she
said.
1:49:02 PM
VANESSA SALINAS, Campaign Director, Alaskans for Responsible
Mining, said giving the state primacy sounds like a good idea
because permitting responsibilities should be close to the
projects, but she questions the feasibility of such a move when
DEC is so woefully under staffed. The fiscal note attached to SB
110 that mandated this move back in 2005 required more than $1.5
million in general funds revenue each year. Industry fees are
capped at 16 percent and she wonders where the funds will come
from to fund this initiative.
According to a program coordinator with DEC, just 7 of the 17
environmental health officers that have been hired in the last
seven years are still employed and five have been with the
agency for six months or less. The additional long-term
employees may retire in the next 5 years. Clearly, DEC is
experiencing a staffing shortage and there is no solution in
sight. State salaries are down and the benefit package for new
hires has been severely cut. Until new hires can be offered a
competitive employment package, qualified candidates won't be
knocking at agency doors. The division of geological and
geophysical survey director has stated that the increased
mineral activity this year will test that section. According to
a DNR career development coordinator, state government is
looking at a 45 percent retirement rate through 2011.
Another area of concern is tribal sovereignty. EPA has the legal
obligation to formally consult with Alaska Native tribes on a
government-to-government basis on all permits. Under the
proposed Alaska program, tribes will lose sovereign authority
because the state doesn't formally recognize tribes.
1:51:46 PM
MS. SALINAS said that DEC is only committed to making reasonable
efforts to inform and seek participation of local and federally
recognized tribes. She urged the committee to halt the transfer
of the NPDES permit authority until funds are allocated for
adequate departmental staffing, and tribal trust obligations of
government-to-government relations are addressed in a manner
that is acceptable to tribes.
1:52:24 PM
JASON BRUNE, Executive Director, Resource Development Council
(RDC), said RDC's diverse membership of includes: oil and gas,
tourism, fisheries, mining, timber, construction, labor
organizations, all of the regional Native corporations, local
communities, and a variety of industry support firms. He
characterized HB 149 as a cleanup bill that relates to what the
legislature charged DEC to do in 2005 under SB 110; these
provisions are required by EPA for Alaska to assume primacy over
NPDES. Currently only five states do not have primacy. For a
state to obtain primacy its requirements must be at least as
strong as the EPA requirements, and HB 149 makes the changes to
ensure that Alaska statutes achieve this. It goes without saying
that Alaskans have a strong interest in ensuring that things are
done right in their state so NPDES primacy for Alaska is a no-
brainer. He urged the committee to move HB 149 so that the final
steps toward assuming this program can be completed.
1:54:52 PM
BOB SHAVELSON, Executive Director, Cook Inlet Keeper, said the
organization has worked on water quality and fish habitat
protection for about 13 years. There are a lot of good arguments
for getting primacy, but the bill that passed under the
Murkowski Administration has a number of flaws, principally the
workgroup that set up the process was dominated by industry
dischargers. There was a municipal seat for wastewater
dischargers, but the public was not part of the process, so it
was a lopsided prospect. The notion of states rights arises
because that workgroup recommended not allowing the state to
have more strict laws than the federal government. That denies
the fact that Alaska has the best fish management program in the
country and it ties Alaska's hands. "If we're concerned about
states rights we should recognize that there's a provision in
there that undermines those rights," he said.
MR. SHAVELSON pointed out that the bill caps fees for industry
so the general fund and the public will pick up any cost
overruns from the very low $1.5 million fiscal note attached to
SB 110. By comparison industry pays 57 percent of the fees in
Oregon, 75 percent in Washington, and 100 percent in Montana.
Alaska will be providing a public subsidy. Looking at
streamlining is good, but when it goes too far, permit quality
is diminished. As currently proposed the permitting staff is
reduced by 28 percent, and the compliance and enforcement staff
is reduced by 16 percent, so DEC would be trying to do the same
amount of work that EPA has done with less staff. RDC fears that
will result in rollbacks to protection of fish and water
quality.
Referring to comments Mr. Wolfe made about tribal sovereignty,
he said that RDC understands that the executive order was meant
to cover federally recognized sovereign tribes, not
corporations. In working with tribes in Cook Inlet he found that
EPA has been very good in the government-to-government
consultation required by that executive order. DEC has made a
good effort, but there is no legal recognition of tribes at the
state level. That is reflected in this final plan and there is
considerable loss of tribal sovereignty. He suggested that there
is a need for a third-party review to understand the fiscal and
substantive impacts. The system in place works and it would be a
good idea to look carefully and get an objective opinion on what
this change will mean.
1:58:28 PM
CHAIR FRENCH asked who would conduct the third-party review.
MR. SHAVELSON suggested a broad-based commission that includes:
industry, tribes, fishing, conservation, and the public.
EARL HUBBARD, Vice President of Regulatory Affairs, Trident
Seafoods, said the more Trident tunes in to the advantages of
primacy, the more it looks at it as a problem solver. He
explained that to process seafood in Alaska a company needs a
general or individual federal NPDES discharge permit. A problem
with EPA is that resources to reissue or write new permits are
severely limited. In fact, every single general permit that EPA
has issued has expired. A new discharger wishing to get into the
fish processing business could not do so legally because EPA
does not have the resources to write a new permit. That is a
difficulty when you look at the considerable contribution that
seafood processing makes to the economy of Alaska, he said. It
most definitely is not possible to have allowed every NPDES
discharge permit in the state to expire and at the same time to
argue that EPA has adequate resources to cover its
responsibilities.
2:03:05 PM
MR. HUBBARD said that the alternative to a general permit is an
individual permit and for those there's a 3-5 year waiting list.
Consider, he said, that every general permit has expired and
there is no opportunity to discharge legally for 3-5 years for
any newcomer to the industry. The impact to coastal and rural
communities in Alaska is stunning. EPA does offer enforcement
discretion in the absence of an authority, but enforcement
discretion isn't needed unless you're breaking the law. In these
litigious times nobody wants to rely on that. These are good
people, but there aren't enough of them.
MR. HUBBARD acknowledged that there have been issues with DEC,
but that agency does respond and listen to find ways that are
legal and appropriate. Primacy is an opportunity with good
timing because the components are in place, he said. You have
DEC professionalism, the tools, and an application that's ready
to go. EPA is probably thankful that Alaska can do this so it
can focus on the three other Region 10 states.
2:07:04 PM
NIKOS PASTOS, Environmental Coordinator, Alaska Inter-Tribal
Council, said he's also treasurer of a non-profit called The
Center for Water Advocacy. He read a resolution opposing NPDES
primacy until the State of Alaska demonstrates tribal
consultation. It resolves that transferring NPDES primacy to the
state is an act of cultural destruction in violation of federal
statutory and trust obligation. Until the state has demonstrated
a record of government-to-government consultation with tribal
governments. All the tribes that have been consulted are opposed
to the state taking primacy. It would be a mistake to say that
the state would manage discharge permits as well as EPA. The
federal government is obligated to include tribes and the state
hasn't even recognized the legitimacy of long-standing tribal
governments that existed before the United States became a
country.
2:11:13 PM
MR. PASTOS said there is a consensus among tribes that water is
sacred; it's vital to the well being of the people and their
traditional food. He doesn't understand why foreign corporations
have more priority than people who have lived in Alaska since
time immemorial. There are flaws in the way the permitting
process would be streamlined for large mining industry, foreign
fishing fleets, and outside timber interests. The Alaska Inter-
Tribal Council is opposed to HB 149 and to the state taking
primacy.
2:12:43 PM
CHAIR FRENCH asked for a copy of the resolution to make it part
of the record.
CARL WASSILIE, Yupik Alaskan and member of Resisting
Environmental Destruction on Indigenous Lands (REDOIL), said he
is speaking on behalf of Alaska Action Center (AAC). AAC
supports communities that are impacted by outside interests that
threaten the well-being and health of future generations. REDOIL
is a group of Alaska Natives that addresses human and
environmental impacts of the fossil fuel industry in Alaska, and
supports sustainable development on indigenous lands. He
supports tribal self-determination and the recognition that the
state has failed to recognize the tribes of Alaska. That needs
to be addressed before the issues about the permitting system ,
he said. The relationship between the state and the tribes and
the communities in Alaska need to be well defined and
established.
MR. WASSILIE said he and REDOIL are opposed to HB 149. It'
important to know the history of the Clean Water Act to
understand its relation with human health impacts. The fact that
that has been forgotten can be seen in Cook Inlet in the
streamlined process of waiving permits for more pollution. These
issues need to be addressed before permitting is turned over to
the state, he said. At this time the state doesn't have the
personnel capacity or the relationship with communities to
recognize tribes even though most industry is operating in or
around tribal waters.
2:17:00 PM
SENATOR WIELECHOWSKI asked DEC to respond to the testimony on
the loss of tribal sovereignty, government-to-government
interaction, and whether DEC has a plan to consult sovereign
tribes as EPA does now.
2:18:31 PM
LARRY HARTIG, Commissioner, Alaska Department of Environmental
Conservation, explained that tribal consultation does not go
away with state primacy. EPA still has its government-to-
government obligations to the tribe and its oversight of all
permits that DEC would issue. Tribes would not have direct
consultation with DEC, but they could consult with EPA and have
all the rights they have now. If EPA thought that DEC wasn't
listening to the tribe it would say so. The other point is that
DEC is making a concerted effort to have in place an equivalent
government-to-government consultation for the APDES program. DEC
developed a guidance document to get tribes interested and is
sending copies to tribes that have expressed a concern. The
document is still in draft form and comments are being
accepting. That will be part of the application package to EPA,
which is scheduled to be presented on May 1. As part of the
application package, it will become part of the program.
However, if better ways of doing the consultation are found that
could be modified. DEC is attuned to the issue and ready to
provide the functional equivalent of what tribes have now with
the federal government. Because the State of Alaska is not a
nation there can only be a state-to-tribe relationship, which by
its very nature will be different than the government-to-tribe
relationship. It will have to be different, but it doesn't mean
the DEC won't listen to their concerns.
2:21:21 PM
SENATOR WIELECHOWSKI asked about DEC recruitment and retention
and the statement that it may not be able handle the increased
workload associated with primacy.
COMMISSIONER HARTIG said that Mr. Shavelson brought up good
points, but they also apply to federal and state agencies and
private industry. Everyone is faced with those demographics. It
comes down to whether the state will be a competitive employer.
He is a member of the Governor's task force on recruitment and
retention and she is acting on recommendations that have been
made, he said. DEC has an internal advisory group, and it has
also contracted for a private survey to improve recruitment and
retention. DEC probably compares with EPA or any other agency on
this issue, he said.
2:23:53 PM
COMMISSIONER HARTIG said the other point that Mr. Shavelson
raised about DEC having fewer people to work on primacy than EPA
doesn't take into account the current DEC permitting staff. His
recollection is that the combination of the current permitting
staff and the NPDES staff will be larger than the current EPA
permitting staff.
LYNN TOMICH KENT, Director, Division of Water, Department of
Environmental Conservation, explained that to implement NPDES
primacy DEC will have 43 positions dedicated to the program.
That includes compliance, permitting, record keeping, and data
management.
SENATOR WIELECHOWSKI asked if 43 new positions will be created.
MS. KENT replied that includes existing staff and the 13
additional positions that were allotted under SB 110; 12 of
those positions have been filled.
2:25:35 PM
SENATOR WIELECHOWSKI asked what percentage of the fees will be
paid by industry.
COMMISSIONER HARTIG explained that it varies among states, but
there is a misassumption here that only industry gets NPDES
permits. Everybody that has a discharge of pollutants to waters
of the United States needs a permit so , municipalities and
small villages would carry the ball too. Few states cover 100
percent of the program. In the last year or so the General
Accounting Office (GAO) tried to get EPA to require states to
fully fund NPDES programs by providing a disincentive for
federal grant dollars. There was pushback from the states and
GAO backed off. The states said they shouldn't be told how to
spend their general fund dollars. He believes Alaska's
percentage is about the same as other states, and the oil and
gas industry already supports a large portion of the program
through general fund contributions. He added that the fee
structure is up to the legislature and not DEC.
2:27:48 PM
CHAIR FRENCH clarified that he is commenting tangentially on Mr.
Shavelson's point that some states get from 57-100 percent of
their fees paid by industry, and he is saying that is something
the legislature has the authority to institute.
COMMISSIONER HARTIG replied that is up to the state. Currently
Alaska permittees pay 16 percent of the program fees and more
municipalities than industry folks have permits.
SENATOR WIELECHOWSKI recalled that there was a question about
DEC writing letters to EPA on behalf of industry dischargers,
and asked if DEC would continue that practice if the state
assumes primacy.
COMMISSIONER HARTIG replied it's not a policy.
SENATOR WIELECHOWSKI asked if DEC would do that anymore if this
bill is enacted.
COMMISSIONER HARTIG said no.
2:29:09 PM
SENATOR THERRIAULT asked if the dynamic before was that DEC was
encouraging the EPA to issue a permit. If the state assumes
primacy it would be the issuing entity so it wouldn't write a
letter to itself.
COMMISSIONER HARTIG explained that DEC will regulate by
following the law, the science, the facts, and good public
policy.
CHAIR FRENCH asked if DEC has contacted the Inter Tribal Council
to discuss sovereign-to-sovereign relations.
COMMISSIONER HARTIG said he welcomes that conversation; he has
an open door. "We're serious about wanting to have a good
relationship with the tribes." Good input is part of that and he
looks forward to any comments or discussion on the draft
guidance.
2:31:07 PM
SENATOR MCGUIRE motioned to report CSHB 149 from committee with
individual recommendations and attached fiscal note(s).
CHAIR FRENCH announced that without objection, CSHB 149(RES) is
moved from the Senate Judiciary Committee.
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