Legislature(2007 - 2008)CAPITOL 124
02/12/2007 08:30 AM House FISHERIES
| Audio | Topic |
|---|---|
| Start | |
| HB74 | |
| HB41 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 74 | TELECONFERENCED | |
| += | HB 41 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 74-BAN MIXING ZONES IN SPAWNING AREAS 8:35:28 AM CHAIR SEATON announced that the first order of business would be HOUSE BILL NO. 74, "An Act prohibiting mixing zones in freshwater spawning waters." [Before the committee is CSHB 74, Version LS0337\M, Bullock, 2/6/07, adopted on February 7, 2007.] 8:36:54 AM CHAIR SEATON directed the committee's attention to a generalized discussion of the definition of "placer mine" and "mechanical dredging" as well as the covers of three fact sheets from the Environmental Protection Agency (EPA) that discuss the aforementioned. 8:38:19 AM LYNN TOMICH KENT, Director, Division of Water, Department of Environmental Conservation (DEC), provided testimony in opposition of HB 74. Ms. Kent paraphrased from the following written statement [original punctuation provided]: The Department is opposed to CSHB 74(FSH) for the following reasons: 1. CSHB 74(FSH) is not necessary to protect anadromous salmon from either a scientific or a perception basis. The Department of Environmental Conservation's regulations prohibit mixing zones in anadromous salmon spawning areas. CSHB 74(FSH) would put in statute the same protections for the five species of anadromous salmon that have been part of DEC's regulations since 1995. While these protections are not necessary from a scientific perspective, they go beyond science to address the need to protect salmon marketing and the public perception that Alaska's salmon are clean and healthy. 2. There is no justification for extending the current mixing zone prohibition designed to protect the salmon marketing effort to protect "non-salmon" fish species. CSHB 74(FSH) would prevent DEC from authorizing a mixing zone in a non-salmon fish spawning area even in cases where science can show the mixing zone will have no adverse effect on spawning. There is no justification for extending the mixing zone prohibition which is intended to protect salmon marketing efforts to non-salmon fish species. Alaska needs to encourage and support responsible community growth and development of its natural resources. DEC's regulations allow exceptions to the prohibition of a mixing zone in "non-salmon" spawning areas when site specific conditions show that the fish species will be protected or any adverse impacts will be mitigated as determined by habitat and fisheries biologists with the Departments of Fish and Game, and Natural Resources, under their mitigation requirements, just as they do for other activities that occur in waterbodies. Alaska's communities and businesses should be allowed to use mixing zones if fish are protected. There is no justification for restricting responsible community growth and resource development that can comply with the state's requirements for the growth and propagation of fish. 3. CSHB 74(FSH) would prohibit mixing zones in spawning areas for lampreys and smelts. DEC would be prevented from authorizing a mixing zone in all anadromous fish spawning areas. Lampreys and smelts are fish species included in the definition of anadromous fish. Unlike the importance of salmon to Alaska's social and economic wellbeing, DEC does not believe non-salmon anadromous fish species justify an absolute prohibition on mixing zones that can comply with the scientifically based water quality standards for growth and propagation of fish. 4. CSHB 74(FSH) would prohibit reauthorization of mixing zones that have become a fish spawning area unless the discharge was from a municipal wastewater facility, or the waterbody is an artificially constructed facility. It is possible for mixing zones to become spawning areas even though spawning was not occurring when the mixing zone was first authorized. DFG has discovered fish spawning in a mixing zone previously authorized for a drinking water utility, and in some cases for domestic wastewater facilities. Successful fish spawning in a mixing zone is at least partial evidence that the water quality in the mixing zone is not harmful to fish. Allowing mixing zones in areas that have become successful spawning areas should be allowed for any facility type, not just municipal wastewater facilities or artificially constructed facilities. Businesses and communities should not lose their mixing zones just because they are doing such a good job treating their wastewater that fish start spawning in them. 5. CSHB 74(FSH) includes a definition of "area" that is counter to both past and current practices by the Departments of Fish and Game and Natural Resources when determining spawning areas on both a spatial and temporal basis. The relative sensitivity of Alaska's fish resources is seasonal. Impacts from responsible community and resource development can be avoided by limiting uses and activities to times of the year when the fish resources are not there or other seasonal conditions eliminate adverse impacts to the fish resources. Alaska's resource agencies have traditionally employed "seasonal restrictions" to control development impacts to the environment. There are dozens of currently permitted facilities with discharges that do not have an adverse effect on fish, in part due to timing restrictions imposed on their discharge via permit conditions. DEC's regulations also prohibit mixing zones that would adversely affect the capability of the area to support future spawning, incubation, and rearing activities. CSHB 74(FSH) would require the Department to cancel those permits (other than for placer mines) and limit future permitting in similar situations without any net environmental benefit to the fish. 6. CSHB 74(FSH) will create a temporary inequity between existing placer miners and new placer miners. Placer mines with mixing zone authorizations under the current general permit do not have to comply with the proposed CSHB 74(FSH) restrictions of AS 46.03.065(c) until the general permit is reauthorized - currently scheduled for the fall of 2010. Any new placer mines seeking permit coverage would have to comply with the new restrictions of CSHB 74(FSH) immediately. This would set up a double-standard for existing vs. new placer mines during the next few mining seasons. 7. CSHB 74(FSH) would prohibit re-authorization of mixing zones for placer mines that cannot operate with a mixing zone limited to 500 feet. There are approximately 28 placer mines that have an authorized mixing zone greater than 500 feet in length - the proposed limitation in CSHB 74(FSH). These facilities, under current regulatory requirements, have already done everything they can do to ensure the mixing zone is as small as practicable. It is likely that many of these facilities could not be re-permited under the proposed 500 foot mixing zone limitation, even though they are currently operating without an adverse impact to spawning. 8. CSHB 74(FSH) relies upon a new undefined term, "useful life" when referring to renewal of a mixing zone authorization for a municipal wastewater facility. As many facilities age, they are upgraded to varying degrees from minor modifications to almost complete reconstruction. DEC knows of no standard or criteria for determining a facility's "useful life." Introduction of the concept of a "useful life" raises questions about what constitutes a modification or upgrade to a facility vs. reconstruction at the end of a facility's "useful life." The "useful life" of a facility is also irrelevant to the properties and effects of a mixing zone or the methods necessary to protect fish. 9. CSHB 74(FSH) is inconsistent with the current statute for protection of fish and game (AS 41.14.870), interference with salmon spawning streams and waters (AS 16.10.010), or submission of plans and specifications (AS 16.20.060). Alaska's legislature has enacted a protective legal framework for all waters important to fish with additional protections for rivers, lakes and streams that are important for salmon spawning, rearing, or migration. State approval must be received from DEC, DNR, or DFG prior to the construction in, or use of waters important to fish spawning, rearing or migration. CSHB 74(FSH) prohibits all mixing zones in all anadromous fish and other specifically listed fish spawning areas. However, CSHB 74(FSH) does not amend or repeal the provisions in other state law that permit the use of fish spawning areas if there are no adverse impacts from that use. CSHB 74(FSH) conflicts with current legislative policy not specifically amended or repealed by CSHB 74(FSH). 10. CSHB 74(FSH) will impact Alaska's municipalities and villages. CSHB 74(FSH) provides for renewal of existing mixing zones for municipal or village treated sewage discharges when spawning begins to occur in the mixing zone after one is authorized. In all other cases, though, the bill prohibits mixing zones for discharges of treated municipal sewage to anadromous and other fish spawning areas. Some fish species, Arctic grayling for example, are ubiquitous and spawn throughout Alaska's river systems. CSHB 74(FSH) would preclude the use of mixing zones to authorize the discharge of treated sewage from a large number of village sewage treatment lagoons that discharge to interior river systems where Arctic grayling spawn. The alternative of treating sewage from villages to a level where no mixing zone would be required would involve exorbitant costs and is simply not feasible. 11. Mixing zones are already strictly regulated under existing regulations. Before authorizing any mixing zone in any waters (fresh or marine, with or without spawning area considerations), the Department must consider 19 specific regulatory provisions. Many of them are designed specifically to protect aquatic life. For example, the Department must find that the designated and existing uses of the waterbody as a whole, including growth and propagation of aquatic life, will be maintained and protected, and that overall biological integrity of the waterbody will not be impaired. In addition, a mixing zone cannot be authorized if it will result in an acute or chronic toxic effect in the water column, sediments, or biota outside the boundaries of the mixing zone; result in a reduction in fish or shellfish population levels; result in permanent or irreparable displacement of indigenous organisms; adversely affect threatened or endangered species; form a barrier to migratory species or fish passage; contain pollutants that bioaccumulate, bioconcentrate, or persist above natural levels in sediments, water, or biota; or cause lethality to passing organisms. In summary, mixing zones are not a blanket approval to discharge pollutants into water. Their size and shape are calculated by engineers using mathematical models and site specific information including the concentration of pollutants, water volumes and flow rates. Once authorized, many permits require the permittee to monitor the concentration of pollutants in the discharge and to monitor the waterbody at the edge of the mixing zone to ensure that all water quality standards are being met at the edge of the mixing zone. DEC also conducts independent inspections and independent monitoring of permittees. 8:48:35 AM CHAIR SEATON asked if, prior to 2006 and the implementation of the new regulations [which are mirrored in HB 74], the division denied villages mixing zones for municipal wastewater treatment plants. MS. KENT explained that many villages have lagoon systems and the lagoons are nondischarging for most of the year. Those lagoons and facilities have been permitted to discharge at certain times of the year in order to avoid spawning times. Therefore, if the seasonal restrictions aren't available to the village, the village won't be able to discharge its lagoons. 8:49:42 AM CHAIR SEATON asked, "Under the current regulations, as written, that define spawning areas, you had not denied any permits. Is that correct?" He also asked if that was correct in the previous decade. MS. KENT answered, "I'm not sure." In response to Representative LeDoux, Ms. Kent agreed to find out whether permits had been denied under the current regulations. She then related that the mixing zone authorization for the Pogo Mine's domestic wastewater discharge from its mining man camp wasn't denied. However, the company was required to perform extensive studies of the Good Paster River in order to find a small place in the river that was underlain by bedrock and unsuitable for fish spawning, which would be used for its domestic wastewater discharge outfall. In response to Representative Johnson, Ms. Kent agreed to inform the committee of the number of applications. 8:51:50 AM CHAIR SEATON inquired as to why Ms. Kent believes the language "useful life," which is used throughout statute, is different in this case. He requested that Ms. Kent update her testimony with regard to that distinction. MS. KENT said that she hasn't reviewed the other statutes referring to "useful life." However, she said that she's well aware of the facility upgrades occurring in rural Alaska. She noted that she would review that language. 8:53:04 AM CHAIR SEATON related his understanding that there may be some inordinate discrimination between new placer miners and existing placer miners. He recalled the practice of provisions grandfathering in existing facilities until new permits are available, such as the general permit that will be reissued in 2010. MS. KENT explained that the legislation is written such that anyone who isn't currently placer mining but wishes to be covered this summer will need to apply for coverage under the existing general permit and comply with the restrictions specified in HB 74. For instance, any new placer miners would have to comply with the limitation on the length of the mixing zone. In further response to Chair Seaton, Ms. Kent said that the only difference is that HB 74 is drafted such that it would apply differently to the existing permitted placer mines and those seeking a permit between now and the reauthorization of the general permit. 8:55:06 AM KRISTIN SMITH, Copper River Watershed Project, informed the committee that the Copper River Watershed Project is a membership nonprofit that focuses on the entire Copper River region. The project represents the salmon economies of the Copper River region. She further informed the committee that the Copper River watershed relies on a commercial salmon fishing economy, subsistence salmon economy, and a growing sportfishing salmon economy. She related that the Copper River region's salmon economy amounts to about $20 million annually on average. Therefore, [the Copper River Watershed Project] supports banning mixing zones in spawning areas. She emphasized that fish are a public resource and should be managed for the public benefit. Allowing mixing zone pollution in public waters benefits a few, not the general public. Furthermore, mixing zones need to be banned from spawning areas at all times because of the harm caused by residual pollutants. Public waters have to be managed for all forms of pollution in order to be effective and spawning areas have to be treated as such rather than a particular point in time. Ms. Smith related that water quality treatment in the Copper River region has illustrated that the long-term polycyclic aromatic hydrocarbons bioaccumulate and micro- organisms can accumulate in their tissue. However, the state water quality standards don't take bioaccumulation into account, but rather only measure acute episodes of pollution. It's critical to move HB 74 through, she said. She then expressed her outrage at having to testify on this subject again. 8:58:54 AM STEVE BORRELL, Executive Director, Alaska Miners Association, provided testimony in opposition to HB 74 as well as Version M, which he characterized as more onerous than the original legislation. Mr. Borrell provided the following testimony: States are allowed to authorize mixing zones under the Clean Water Act because in some situations no other alternative exists to handle some discharges. In Alaska most of the mixing zones are for sewage discharges by municipalities and a few mining operations also need mixing zones to comply with the very stringent discharge limits that are in place. Mixing zones are the option of last resort and authorized by DEC only after no other feasible alternative is determined. Mixing zones are sized based on the flow of the receiving water and by law must be "as small as practicable". That term appears in law throughout EPA regulations, in statute, and in state. Mixing zones are not allowed when salmon spawning is occurring; timing restrictions currently placed on mixing zones so they cannot be used when salmon are spawning. The CS to House Bill 74 adds the words "at any time" and would eliminate use of mixing zones even when spawning was not occurring. DEC would not be able to issue mixing zones "at any time" if spawning ever occurs in that area. The second change made ... by the committee substitute adds the term "a turbidity mixing zone". There is a hidden problem within this addition of the term. Turbidity modifications are currently allowed for placer and dredge miners and this is, in essence, the mixing zone. However, EPA and DEC, after several years of study and multiple legal challenges, determined that turbidity was a reasonable surrogate for naturally occurring arsenic and that if a very low limit was placed on turbidity, the permit would be protected for arsenic in the discharged water as well. Therefore, with the change made by the CS, the use of turbidity as a surrogate would likely not be allowed. The bill appears to grandfather municipalities that currently have mixing zones that become a spawning area after the mixing zone is approved. However, if the municipality needs to expand, to modify, or make some change to the sewage plant, it would require a different permit and it would no longer qualify and could no longer have the same mixing zone or any mixing zone. It is my understanding that this is the situation for the City of Palmer where changes have occurred in the Matanuska River since the permit was issued and the discharge area for the Palmer sewage is now a spawning bed for salmon. This bill is likely to contribute to the demise and closure of some villages. By not being able to obtain a mixing zone, the bill will add one more huge costly hurdle to villages that are already struggling to survive. The bill makes no provisions for the many villages and municipalities that do not now have a discharge permit, and therefore do not have a mixing zone. These villages ... typically have a sewage lagoon and each spring when water is either pumped or drained off the top and pumped into an adjacent stream or river. In the spring of the year, the river is high and provides a mixing zone for the discharge from the lagoon. A cursory view of discharge permits now in effect provides some interesting results. First off, it appears that every fish processing plant in either fresh or salt water already has a mixing zone. These mixing zones vary from a few meters to several hundred meters in size. MR. BORRELL then reviewed the specifics of mixing zones in the following areas: Palmer, Point Barrow, Soldotna, Kenai, Dillingham, King Salmon, and Homer. He mentioned that there are various fish processing plants on the Kenai River, but he didn't have the details of the permits. Mr. Borrell opined: This bill does not address the real question. The real question: Is there adverse impact due to these mixing zones or due to any other mixing zones. If there is adverse impact, no mixing zone should be allowed irrespective of whether it involves a municipality, a fish processing plant, a village, or a mine. If there is no adverse impact and that's the purpose of the science that's required to obtain such a permit and there are no other practical alternatives, a mixing zone may be appropriate. All discharges must be treated equally and the same rigorous science must be applied before any mixing zone is approved. 9:07:04 AM CHAIR SEATON noted that the City of Palmer has provided a letter in support of HB 74. 9:07:41 AM REPRESENTATIVE LEDOUX asked how villages and municipalities have faired prior to the regulatory change last year. MR. BORRELL said that he didn't know the details of the situation prior to the regulatory change. Under the current regulations, it appears that a village can obtain a mixing zone [permit] in a resident fish spawning area, he surmised. However, under the legislation those villages that don't currently have a mixing zone wouldn't be able to obtain one. He recalled a DEC EPA meeting several years ago in which the EPA representative admitted that many remote villages don't have permits of any kind and mentioned that they can't get to everything. 9:09:50 AM CHAIR SEATON, in response to Representative Johnson, clarified that in essence House Bill 328 of the Twenty-Fourth Alaska State Legislature is identical to [HB 74]. 9:10:29 AM DR. ROLAND MAW, United Cook Inlet Drift Fishermen's Association; Past President, Kenai Wild, began by noting his agreement with Ms. Smith's comments regarding the hydrocarbon issue. Dr. Maw related his support of HB 74. With regard to marketing salmon, he said that perception is the reality. He then recalled his attendance at the Chefs of America convention where he displayed the Kenai Wild salmon product. The chefs held cards that specify endorsed products available to them, products that are in question for consumption, and products that wouldn't be purchased. There was some question about Alaska salmon as some of the salmon products from Alaska were listed in the questionable category. However, Kenai Wild, Kenai, and Bristol Bay salmon as well as southeast troll salmon were listed in the endorsed products category. He recalled spending a lot of time discussing the handling procedures, environment in which the fish were raised, and about heavy metals and other contaminants. Therefore, he surmised that if Alaska isn't careful with this mixing zone issue, some of Alaska's products won't be supported or listed in the endorsed category. 9:16:21 AM JOHN NELSON stated support for HB 74. He highlighted that he lives in an area with pristine waters. In fact, the area is part of the sockeye capital of the world. Additionally, the village utilizes Lake Iliamna water for human consumption. With regard to earlier testimony that villages have the obligation to pump/discharge their sewer lagoons in fresh water, Mr. Nelson stated his disagreement. He informed the committee of various villages, including the Village of Kokhanok that don't discharge contaminated water into [fresh water]. 9:18:26 AM REPRESENTATIVE LEDOUX related her understanding then that the Village of Kokhanok isn't concerned about any dire consequences that Mr. Borrell discussed in relation to village wastewater systems. MR. NELSON replied, "No, no I wasn't. No, I just wanted to make a commentary of that." 9:19:04 AM JIM KULAS, Environmental Manager, Red Dog Mine, Teck Cominco Alaska Incorporated, began by saying that he is calling on behalf of Teck Cominco and its partner NANA Regional Corporation. He related Red Dog's opposition to HB 74, and opined that existing regulations adequately protect spawning. He explained that at the Red Dog Mine two mixing zones are necessary and are used, although they are only used as a last resort. The mine has done exhaustive work to treat its discharge to meet the best standards possible. The discharge permitting process is very rigorous and detailed. For instance, the Red Dog Mine had a permit renewed by EPA that took eight years to obtain. Furthermore, to obtain a mixing zone permit requires considerable study and science to justify it. He explained how this is monitored by the state annually and how the Red Dog Mine spends over $1 million per year to monitor its discharge. Again, the mixing zones were a last resort as the mine was spending almost $5 million per year to treat and discharge water and roughly $50 million in capital costs to construct the [treatment] plant. The aforementioned illustrates the effort before requesting a mixing zone. In the case of Red Dog Mine, what it discharges meets drinking water standards for metals. However, the mixing zone is necessary for pH and dissolved solids. Mr. Kulas pointed out that the Red Dog Mine has been discharging for 18 years and through all the exhaustive studies, no aquatic harm has been identified. In fact, the fish population downstream from the mine's discharge has increased over the life of the operation. Therefore, Mr. Kulas reiterated that the existing regulations allow for protection. With regard to the question of grandfathering, he pointed out that all of the permits issued by EPA only have a five-year life. Therefore, he questioned how satisfactory grandfathering would be for a permit with a limited life. 9:23:16 AM CHAIR SEATON related his understanding, "So, you were able to get your mixing zone permit and do this for the decade before January 1, 2006, you've been able to operate. Is that correct?" MR. KULAS replied yes, adding that the Red Dog Mine has been discharging since 1990. 9:23:40 AM CHAIR SEATON inquired as to the difference between the situation 10-12 years ago and today. He also inquired as to why Red Dog Mine was able to operate and survive under the previous regulations and why it would be difficult to return to those previous regulations. MR. KULAS explained that in the case of the Red Dog Mine, the original discharge permit was based on a technology standard. That permit and those limits were relatively easy to achieve. Subsequent to the issuance of that permit, EPA changed its permitting requirements to what's considered a water-quality based standard. At that point, the permit limits were much lower and thus the mixing zone was required. He informed the committee that the Red Dog Mine has to change its operation to respond to the Grayling spawning period such that the discharge is decreased so that the mixing zone isn't required. The aforementioned is achieved with state oversight during which a biologist is brought on site to observe spawning and inform the mine when it has concluded. 9:26:08 AM REPRESENTATIVE WILSON asked if Mr. Kulas is saying that the standards and requirements are more stringent now. MR. KULAS replied yes. When EPA changed the basis for writing the permit limits from a technology basis to a water-quality basis, the permit limits were ratcheted down considerably. For example, in the case of zinc the Red Dog Mine was allowed 1,500 parts per million (ppm) in its discharge and that was decreased to 198 ppm, which is almost 10-fold. The aforementioned occurred on virtually every permit limit. 9:26:59 AM CHAIR SEATON, upon determining no one else wished to testify, closed public testimony. [HB 74 was held over.]
| Document Name | Date/Time | Subjects |
|---|