Legislature(2009 - 2010)BARNES 124

03/11/2010 08:00 AM House COMMUNITY & REGIONAL AFFAIRS

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Meeting Postponed to 8:30 am --
Heard & Held
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
            HB 318-UNREGULATED POTABLE WATER SYSTEMS                                                                        
8:34:38 AM                                                                                                                    
CO-CHAIR HERRON announced that the  first order of business would                                                               
be  HOUSE  BILL NO.  318,  "An  Act  relating  to public  use  of                                                               
unregulated water systems."                                                                                                     
[Before the committee is CSHB  318, Version 26-LS1357\R, Bullard,                                                               
1/29/10, adopted at the February 25, 2010 meeting.]                                                                             
8:34:43 AM                                                                                                                    
PETE  FELLMAN, Staff,  Representative John  Harris, Alaska  State                                                               
Legislature, said  that it's clear  that water is the  most basic                                                               
human need.  He opined  that with proper disclosure people should                                                               
have  the  right to  choose.    He  further  opined that  if  the                                                               
Department of  Environmental Conservation (DEC) had  followed its                                                               
own  regulations,   this  legislation  wouldn't  be   before  the                                                               
committee today and people wouldn't  have been forced to drive 45                                                               
miles to  haul water.   He pointed out  that the Code  of Federal                                                               
Regulations  (CFR) 40  §141.2 provides  for variances  for up  to                                                               
five years  while DEC  helps people  upgrade their  water systems                                                               
via time  and funds.    He stressed that  the well in  Salcha has                                                               
never tested positive for any contaminants.                                                                                     
8:36:29 AM                                                                                                                    
CO-CHAIR MUNOZ  recalled that  once there are  25 or  more people                                                               
using a well,  a more restrictive standard is put  in place.  She                                                               
inquired as to how many people are using the well in Salcha.                                                                    
MR.  FELLMAN answered  that up  to 40  families use  the well  in                                                               
Salcha.   However, DEC regulations  require that  each individual                                                               
be counted.  He noted that  the committee packet should include a                                                               
list of the individuals using the Salcha well.                                                                                  
CO-CHAIR  MUNOZ  related  her  understanding  that  many  of  the                                                               
individuals used the Salcha well seasonally.                                                                                    
MR. FELLMAN  confirmed that to  be the  case, and added  that the                                                               
list  he  provided  to  the  committee  covered  a  fairly  broad                                                               
spectrum of time.  He recalled that  when the lock was put on the                                                               
well  there were  about 32  individuals using  it, and  thus from                                                               
that time  forward only  24 individuals were  allowed to  use the                                                               
8:37:57 AM                                                                                                                    
CO-CHAIR HERRON requested that Mr. Fellman describe Salcha.                                                                     
MR. FELLMAN related  that Salcha, which is part  of the Fairbanks                                                               
North Star Borough, doesn't have a  government.  Salcha is one of                                                               
the longest  communities in  Alaska as it  covers about  40 miles                                                               
along the Richardson  Highway south of Fairbanks.   The geography                                                               
is such that most people can't  drill wells for water unless they                                                               
live down by the river.                                                                                                         
8:38:55 AM                                                                                                                    
REPRESENTATIVE CISSNA  inquired as to  the number of  children in                                                               
the Salcha area.                                                                                                                
MR.  FELLMAN estimated  that  perhaps 100  children  live in  the                                                               
8:39:47 AM                                                                                                                    
CO-CHAIR MUNOZ asked  if DEC currently has a  standard in statute                                                               
for unregulated water.                                                                                                          
MR. FELLMAN specified that the  department can provide variances.                                                               
For instance,  for some  wells DEC  provides variances  such that                                                               
there is unregulated  water when [the well] is used  less than 60                                                               
days.  Therefore, in the case  of Salcha the sponsor is concerned                                                               
that  DEC didn't  provide the  opportunity to  use a  variance to                                                               
allow for  the Salcha well to  be upgraded.  In  further response                                                               
to  Co-Chair  Munoz,  Mr.  Fellman  explained  that  DEC  is  the                                                               
regulating authority and  CFR 40 has been adopted  in the state's                                                               
regulations.    He expressed  concern  that  DEC didn't  come  to                                                               
Salcha  and offer  the opportunity  to help  and provide  time to                                                               
address any problems.                                                                                                           
8:42:43 AM                                                                                                                    
KRISTIN   RYAN,   Director,    Division   Environmental   Health,                                                               
Department of  Environmental Conservation, explained that  HB 318                                                               
technically prohibits DNR from stopping  the consumption of water                                                               
from a  public water  system that's posted  a warning.   However,                                                               
DEC assumes  the intent is  to modify DEC's authority  since it's                                                               
the  department  that  regulates   public  water  systems.    The                                                               
authority of DNR is restricted  to ensuring people have access to                                                               
water, while DEC  has the authority to  regulate consumption from                                                               
a  public  water  system.     She  opined  that  modifying  DNR's                                                               
authority rather than DEC's authority  was a drafting error.  Ms.                                                               
Ryan then  emphasized that  the state  has primacy  over drinking                                                               
water  from  the  Environmental Protection  Agency  (EPA),  which                                                               
means the  state has primary  enforcement authority for  the U.S.                                                               
Safe  Drinking  Water   Act.    Therefore,  the   state  via  DEC                                                               
implements the federal laws in Alaska  as long as an adequate job                                                               
is done  and the state's  rules are  equal to the  EPA guidelines                                                               
for the Safe Drinking Water  Act.  Unfortunately, HB 318 wouldn't                                                               
meet  that standard  as it  changes  the definition  of a  public                                                               
water  system and  allows a  public water  system to  opt out  of                                                               
being  a water  system  so long  as  a warning  is  posted.   The                                                               
federal definition, she explained,  defines a public water system                                                               
and if that definition is met,  then a public water system exists                                                               
and there is no opt-out provision.   Therefore, if HB 318 passes,                                                               
the EPA  would revoke DEC's  enforcement authority and  EPA would                                                               
enforce the [federal] rule that  already exists.  Ms. Ryan opined                                                               
that  the legislation  doesn't accomplish  the desired  effect of                                                               
eliminating any burden  on the water system,  rather it increases                                                               
the burden  because the  EPA would  take over  enforcement rather                                                               
than the state.  She noted  that of the many benefits of primacy,                                                               
significant funding is  the top benefit.   Currently, the federal                                                               
government gives the  state $4.2 million to  implement its rules,                                                               
while the  state match is  $1.6 million.   In addition  the state                                                               
receives  funding  that's loaned  or  granted  to communities  to                                                               
construct  or  repair  existing   water  systems.    The  state's                                                               
capitalization  grant this  year  is $13  million,  which can  be                                                               
utilized  by  small  public  water systems  to  comply  with  the                                                               
standard.  This year's state  capitalization grant is higher than                                                               
the average $8  million because of the  stimulus recovery effort.                                                               
She then pointed out that there is  a cadre of tools the state is                                                               
able  to utilize  that EPA  wouldn't be  able to  if the  EPA had                                                               
primacy.   For  instance, DEC  can hire  third party  inspectors.                                                               
She related her  understanding that Alaska is the  only state she                                                               
knows about  that pays private  engineers to inspect  and provide                                                               
technical  assistance  to  water  systems.   In  fact,  about  75                                                               
percent  of the  sanitary surveys  are performed  by third  party                                                               
inspectors.   An additional benefit  to the state  having primacy                                                               
is the  state's ability  to grant variances  or exemptions.   The                                                               
EPA has drafted 23 rules with  which public water systems have to                                                               
comply.   The state doesn't have  primacy for all of  those rules                                                               
and  is  working on  obtaining  primacy  for  rules 17-19.    She                                                               
explained that variances or  exemptions have specific limitations                                                               
such that  they can't be  granted for a  rule that could  have an                                                               
immediate impact on  human health.  Variances  and exemptions are                                                               
allowed for chronic  contaminants.  For example,  DEC has granted                                                               
many  variances  and  exemptions   on  the  Kenai  Peninsula  for                                                               
arsenic.  Variances and exemptions,  she further explained, can't                                                               
be  granted for  water systems  to  never apply,  but rather  are                                                               
tools that allow  time to find a better source  of water, collect                                                               
necessary  resources.   Although  variances  and exemptions  have                                                               
limitations, they're incredibly useful  and allow many systems to                                                               
remain in compliance that wouldn't otherwise.                                                                                   
MS. RYAN  informed the committee that  in the case of  the Salcha                                                               
water system, the [owners of  the Salcha water system] don't want                                                               
to test at all.  However, a  variance or exemption to not test or                                                               
not be  a water  system can't  be granted.   She  reiterated that                                                               
variances and exemptions  can only be granted to  provide time to                                                               
comply with specific  rules.  With regard to  an earlier question                                                               
regarding standards, the state also  regulates water systems that                                                               
fall below  the federal definition, but  doesn't regulate private                                                               
wells.  For example, the state  regulates, albeit to a much lower                                                               
standard,   those  water   systems  that   serve  less   than  25                                                               
individuals  per day  and  don't  serve a  duplex,  which is  the                                                               
position in which  Salcha is.  Therefore, systems  such as Salcha                                                               
are required  to do monitoring,  although to a lesser  scale than                                                               
federally regulated water systems.                                                                                              
8:52:08 AM                                                                                                                    
MS. RYAN,  in response to  Representative Keller,  confirmed that                                                               
there is a  definition of a "public water system"  in the federal                                                               
regulations, which were implemented  because of the Safe Drinking                                                               
Water Act.   However, the State  of Alaska also has  a definition                                                               
of a "public  water system" in its regulations  that goes further                                                               
because  it covers  the smaller  water systems  that the  federal                                                               
government  doesn't regulate.    Because  Alaska's definition  is                                                               
more stringent than the federal  definitions, Alaska's program is                                                               
acceptable and has been  approved by the EPA.  If  HB 318 were to                                                               
pass,  then the  state's definition  of a  "public water  system"                                                               
would  be less  stringent  than that  of the  EPA,  and thus  the                                                               
state's program wouldn't be approvable.                                                                                         
8:53:32 AM                                                                                                                    
MS.  RYAN, in  further  response to  Representative Keller,  said                                                               
that water  systems shift  [in and  out of  being a  public water                                                               
system and  not being a  public water system].   Furthermore, the                                                               
federal government  is mostly concerned about  water systems that                                                               
serve  a non  transient community,  people who  are drinking  the                                                               
water  all  the time.    She  pointed  out  that there  are  many                                                               
federally regulated public water systems  in Alaska that are only                                                               
considered a  public water  system during the  summer.   Ms. Ryan                                                               
clarified that a  public water system is only  considered as such                                                               
when it's  a watering point  with a well  or a piped  system that                                                               
feeds  the water  at the  end of  the pipe.   However,  25 people                                                               
drinking  water from  a river  without utilizing  a piped  system                                                               
wouldn't be considered a federally regulated water system.                                                                      
8:55:26 AM                                                                                                                    
REPRESENTATIVE GARDNER asked  if it's certain that  passage of HB
318 would  revoke state primacy  on drinking  water.  If  so, she                                                               
inquired as to how long the process would take.                                                                                 
MS. RYAN  answered that although  DEC is waiting on  the official                                                               
EPA document that would specify  the aforementioned, DEC has been                                                               
informed that  passage of HB  318 would result in  the revocation                                                               
of the  state's primacy.   The department has also  been informed                                                               
that the  revocation of  the state's  primacy would  occur rather                                                               
swiftly  and  that  funding  from   this  fiscal  year  would  be                                                               
withdrawn, and thus may need to  be repaid.  Furthermore, the EPA                                                               
has warned DEC that the situation is being watched closely.                                                                     
8:56:33 AM                                                                                                                    
CO-CHAIR HERRON  emphasized that just because  the legislature is                                                               
discussing  something, doesn't  mean  that it  will  happen.   He                                                               
asked if DEC has shared the aforementioned with the EPA.                                                                        
MS. RYAN explained  that the EPA is  aware of HB 318  and DEC has                                                               
related  to  the  EPA  the  steps it  will  take  to  inform  the                                                               
legislature of  the impacts of  HB 318.   The EPA has  warned DEC                                                               
that passage  of HB 318  would result  in the EPA  not certifying                                                               
the state's program.  Although she  said that she didn't know how                                                               
quickly  it  would occur,  the  EPA  seemed fairly  serious,  she                                                               
CO-CHAIR HERRON expressed concern  regarding this threat from the                                                               
federal government  that it will  pull current year  funding just                                                               
because  the  legislature  is  discussing  a  local  issue.    He                                                               
suggested that  Ms. Ryan  relate to  the federal  government that                                                               
the legislation has a long way to go before it could become law.                                                                
MS. RYAN  related that she  has told the EPA  the aforementioned.                                                               
She  clarified that  the EPA  would  only revoke  funding if  the                                                               
legislation passes and becomes law.                                                                                             
8:58:20 AM                                                                                                                    
REPRESENTATIVE CISSNA inquired  as to how much it  would cost the                                                               
state  to  help   Salcha  achieve  a  better   water  system  and                                                               
MS. RYAN answered that it wouldn't  take much at all.  The Salcha                                                               
water system  is a  ground water  system that  seems to  be clean                                                               
from the  limited testing the  department has  seen.  For  such a                                                               
water   system,   Ms.  Ryan   estimated   that   it  would   cost                                                               
approximately  $15,000  for  the   initial  engineer  review  and                                                               
checking  to  ensure the  well  is  cased  correctly.   Also  the                                                               
average testing  costs for  an average  ground water  system that                                                               
doesn't have any treatments is about $500 per year.                                                                             
9:00:21 AM                                                                                                                    
REPRESENTATIVE  CISSNA related  that  she  attended the  National                                                               
Public Health  Conference during  which there was  a presentation                                                               
on  safe water,  which  focused  mainly on  Alaska.   During  the                                                               
presentation  it was  said that  nationally about  99 percent  of                                                               
water is clean,  whereas only about 70 percent or  so of Alaska's                                                               
water  is  considered  clean.   The  presentation  provided  much                                                               
information  regarding the  impacts of  unclean water  on Alaskan                                                               
infants.   She opined that  physical and emotional  damage occurs                                                               
when one in  three children in communities with  unsafe water are                                                               
sent  to hospitals  [outside  the community  in  which the  child                                                               
lives] and away from the  parents.  Therefore, she understood the                                                               
concern  for the  safety  of humans,  especially  children.   She                                                               
asked if DEC contemplates the aforementioned.                                                                                   
MS.  RYAN   said  she  isn't  familiar   with  those  statistics.                                                               
However,  she  related  her   understanding  that  Dr.  Hurlburt,                                                               
Director,  Division of  Public Health,  has related  his personal                                                               
experiences  when  villages  didn't   have  safe  drinking  water                                                               
sources and the high rates of  disease and sickness in infants in                                                               
particular.   Ms. Ryan emphasized  that there is a  marked change                                                               
in  the health  of communities  when  they have  a safe  drinking                                                               
water source.   Since most of Alaska's communities  have had safe                                                               
drinking  water  since  the  1970s, she  said  that  nothing  has                                                               
dramatically changed since then.                                                                                                
9:03:08 AM                                                                                                                    
CO-CHAIR  HERRON inquired  as  to why  the  Fairbanks North  Star                                                               
Borough isn't involved since Salcha is in the borough.                                                                          
MS. RYAN said that while a public  water system is often run by a                                                               
government organization, they aren't  necessarily run by the city                                                               
and borough  government.  The  DEC isn't concerned with  who runs                                                               
the water system; the concern is that it's run safely.                                                                          
9:04:28 AM                                                                                                                    
CO-CHAIR HERRON  announced the intent  of the co-chairs  to bring                                                               
HB 318 before the committee again next week.                                                                                    
9:05:18 AM                                                                                                                    
WARD HURLBURT, M.D., Chief  Medical Officer/Director, Division of                                                               
Public  Health JILL  LEWIS, Deputy  Director, Division  of Public                                                               
Health, Department of Health and  Social Services (DHSS), had his                                                               
testimony  read  by  Jill Lewis,  Deputy  Director,  Division  of                                                               
Public Health, DHSS, as follows:                                                                                                
     As I read  the background about this  bill, I certainly                                                                    
     sympathize  with the  residents of  Salcha who  clearly                                                                    
     felt  that  they were  doing  a  good thing  for  their                                                                    
     neighbors, to  provide a well  for them in  a community                                                                    
     location.   I  also  understand the  intent  to try  to                                                                    
     shield  the  residents  of   Salcha  and  other  Alaska                                                                    
     communities  from  unnecessary   and  burdensome  state                                                                    
     regulation.   I first worked  in Alaska as  a physician                                                                    
     in 1961 when I lived  in Dillingham, in the days before                                                                    
     the state  and federal government began  to collaborate                                                                    
     on  projects  to bring  safe  water  and sanitation  to                                                                    
     remote and  rural communities across Alaska;  a process                                                                    
     that is ongoing  and certainly not yet complete.   As a                                                                    
     young physician,  I was impressed  with a  large number                                                                    
     of  very sick  toddlers and  infants who  needed to  be                                                                    
     hospitalized and  placed on  intravenous fluids  due to                                                                    
     severe  gastroenteritis  and  diarrhea.     In  1962  I                                                                    
     presented a scientific paper  at the National Institute                                                                    
     of  Health contrasting  the incidents  of this  serious                                                                    
     and sometimes  fatal health problem between  breast fed                                                                    
     and bottle fed infants.   The breast fed infants seldom                                                                    
     contracted this condition and it  was all too common in                                                                    
     bottle fed  infants and toddlers.   Over the  years, as                                                                    
     safe  water  and   sanitation  systems  were  installed                                                                    
     across  Alaska the  number of  sick young  children and                                                                    
     infants  with  gastroenteritis  dramatically  declined.                                                                    
     Today  there  are fewer  in  patients  in each  of  the                                                                    
     tribal health  system field  hospitals than  there were                                                                    
     in  the 1960s.    The major  reason  for this  dramatic                                                                    
     change has been the reduced  number of sick infants and                                                                    
     young  children  with   gastroenteritis  and  those  of                                                                    
     similar  age who  were ill  with  complications of  now                                                                    
     vaccine   preventable  communicable   diseases.     The                                                                    
     regulations  that  were put  in  place  to protect  the                                                                    
     public  from  unsafe  water  were  a  response  to  the                                                                    
     serious morbidity  and mortality occasioned by  the use                                                                    
     of unsafe water  by Alaskans.  The  regulations are not                                                                    
     onerous,  but are  common sense  and responsible.   You                                                                    
     have heard from DEC that  they tried to administer this                                                                    
     regulation  in a  supportive, helping  manner.   You've                                                                    
     also   heard  that   in  the   absence  of   an  Alaska                                                                    
     regulation,   the   federal  Environmental   Protection                                                                    
     Agency  will administer  the  federal requirements  and                                                                    
     take  away  the  $7.5  million federal  grant  used  to                                                                    
     administer  this public  service regulation.   While  I                                                                    
     sympathize with  the good  intentions behind  this bill                                                                    
     and  the   frustration  on  the  part   of  the  Salcha                                                                    
     residents  who felt  they were  doing a  good thing,  I                                                                    
     must express  concerns with this  bill.   The assurance                                                                    
     of  safe water  supplies  is a  core responsibility  of                                                                    
     good government.                                                                                                           
9:08:40 AM                                                                                                                    
MR. FELLMAN, in  response to Co-Chair Herron,  specified that the                                                               
well  is  maintained  by  the Salcha  Fair  Association  as  it's                                                               
located  on  the  fairgrounds'  property.    One  individual  has                                                               
control of the keys to the well.                                                                                                
CO-CHAIR  HERRON  then  inquired  as   to  why  the  Salcha  Fair                                                               
Association isn't interested in having a water system.                                                                          
MR.  FELLMAN related  that the  Salcha Fair  Association and  the                                                               
residents in  the area  are interested in  having a  water system                                                               
and the  well has been tested  twice yearly and been  clean.  The                                                               
issue is  the cost of the  engineering to upgrade the  well.  Mr.                                                               
Fellman opined  that because  of CFR 40,  DEC has  regulations in                                                               
place  that  provide,  in certain  economic  situations,  federal                                                               
funds  to the  state to  upgrade, educate,  and help  [construct]                                                               
safe  water  systems.   He  explained  that  three years  can  be                                                               
provided  to  upgrade a  well  and  then a  five-year  extension.                                                               
However,  a certain  standard must  be met.   Mr.  Fellman opined                                                               
that Salcha merely  needs a variance to meet a  standard within a                                                               
reasonable timeframe.   Such a  variance could allow  Salcha time                                                               
to  obtain   the  funding  for  the   engineering  and  upgrades.                                                               
However,  DEC chose  to  cut  off people  from  the Salcha  water                                                               
9:11:12 AM                                                                                                                    
CO-CHAIR  MUNOZ  asked  if  Salcha residents  pay  taxes  to  the                                                               
MR. FELLMAN replied yes.   In further response to Co-Chair Munoz,                                                               
Mr.  Fellman  said  that  he   didn't  know  whether  the  Salcha                                                               
residents have petitioned the borough government for assistance.                                                                
9:11:36 AM                                                                                                                    
CO-CHAIR  HERRON  asked  if  DEC  has  worked  with  the  borough                                                               
government since  there is no  tribal or city  government related                                                               
to this well.                                                                                                                   
MS.  RYAN  replied no.    She  informed  the committee  that  the                                                               
Fairbanks North  Star Borough doesn't  even run the  public water                                                               
system in Fairbanks.  The  public waters systems in the Fairbanks                                                               
North Star Borough tend to be privately held.                                                                                   
CO-CHAIR HERRON  suggested that [HB 318]  provides an opportunity                                                               
to create a new way to provide safe water.                                                                                      
MS.  RYAN  reiterated  that many  privately  held  entities  have                                                               
chosen to run  their water system to ensure  safe drinking water.                                                               
She  explained  that  water  system   members  can  approach  the                                                               
department or  other funding sources  to obtain resources  to get                                                               
their system into  compliance.  The program  provides millions of                                                               
dollars  in loans  and  grants are  available  to communities  to                                                               
perform  upgrades.     The   department  works   with  interested                                                               
entities,  but  the department  can't  make  entities seek  these                                                               
9:14:20 AM                                                                                                                    
CO-CHAIR HERRON announced  the intent of the sponsor  and the co-                                                               
chairs to  work on this  legislation.  He further  announced that                                                               
the  fiscal  note  will  change  to a  net  zero  as  he  doesn't                                                               
appreciate  the  threat  [from   the  federal  government].    He                                                               
reiterated that HB 318 would be held over.                                                                                      
9:14:56 AM                                                                                                                    
REPRESENTATIVE  CISSNA asked  if it's  possible for  DEC to  give                                                               
loans to communities, which the communities could repay.                                                                        
MR. FELLMAN  acknowledged that there is  federal money available.                                                               
He emphasized that  the community just needed  time and technical                                                               
assistance to upgrade the well.   He opined that the community of                                                               
Salcha  isn't opposed  to gathering  the $15,000  to upgrade  the                                                               
well, the community  just needed a variance in order  to have the                                                               
time to work with DEC to craft a  plan to upgrade the well.  With                                                               
regard  to health  concerns, Mr.  Fellman expressed  concern with                                                               
the  regulation  that  essentially   isn't  concerned  [with  the                                                               
health] of  those using a water  system when there are  less than                                                               
25 people who use it.                                                                                                           
[HB 318 was held over.]                                                                                                         

Document Name Date/Time Subjects
CS HB 202 version R (same as CSSB 129 M).PDF HCRA 3/11/2010 8:00:00 AM
HB 202
SB 129
CS SB129 - AFCA Letter.pdf HCRA 3/11/2010 8:00:00 AM
HB 202
SB 129
HB 202 LTRS of Support I.PDF HCRA 3/11/2010 8:00:00 AM
HB 202
HB 202 Plumbers Union LTR against.PDF HCRA 3/11/2010 8:00:00 AM
HB 202
HB 202 - AFCA Comments on Side by Side Comparison.pdf HCRA 3/11/2010 8:00:00 AM
HB 202
HB 202 - Municipal Code Adoption Processes.pdf HCRA 3/11/2010 8:00:00 AM
HB 202
HB 202 - Summary of Adoption Process.pdf HCRA 3/11/2010 8:00:00 AM
HB 202
HB 202 Letters Against.PDF HCRA 3/11/2010 8:00:00 AM
HB 202
CS HB 202 (version R) Sponsor Statement.PDF HCRA 3/11/2010 8:00:00 AM
HB 202
HB202-DPS-FLS-03-08-10.pdf HCRA 3/11/2010 8:00:00 AM
HB 202
HB 202