Legislature(1993 - 1994)
04/06/1993 01:00 PM House JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 167 AIR QUALITY CONTROL PROGRAM Number 048 RUSSELL HEATH, EXECUTIVE DIRECTOR OF THE ALASKA ENVIRONMENTAL LOBBY, testified that the Lobby was a coalition of 20 environmental groups. Mr. Heath explained that the Lobby had been asked to participate in a working group to develop a proposal for the legislature to bring Alaska into conformity with the 1990 amendments to the federal Clean Air Act. Mr. Heath further explained that the environmental community was offered one seat on a committee comprised mostly of industry representatives and that committee decisions were carried by a two-thirds vote. MR. HEATH stated that the legislation written by the working group, while not exactly what the Lobby would want, was supported by the Lobby. Mr. Heath added that shortly after HB 39 was introduced, HB 167 was introduced, apparently on behalf of the timber industry. Both bills had been discussed in detail by a Senate Resources subcommittee also considering SB 103 in order to produce a single bill. Mr. Heath added that a representative of the timber industry was at the subcommittee's table when it discussed the bills. The product of that subcommittee work had been incorporated into HB 167. MR. HEATH listed the following reasons that the Alaska Environmental Lobby opposed HB 167: 1) The fee structure in HB 167 developed by the Department of Environmental Conservation (DEC) working committee subverted the key intent of the Clean Air Act, which was to reduce emissions. The size of the fee should be tied directly to the amount emitted, providing a powerful incentive to reduce emissions. The fee structure in HB 167 was instead based on the per-hour cost to DEC to process the permits. 2) The "general permit" program was instituted to level the playing field for small emitters since they would have had to bear the burden of higher rates under the fee structure as it stood. The general permit was a blanket permit which applied to all emitters of a similar type. The problem was that at the time a general permit was developed, public review would be solicited statewide, but the public would not have an opportunity to comment when a specific business in a specific neighborhood was granted a general permit. This would close the public process. 3) Currently, if a business was an historical violator, its permit was written for a shorter period of time so that the public had a chance to comment more frequently on its impact on the safety of the community. The shorter permit period also provided the state with an opportunity to incorporate the best permit stipulations possible to assist the business to come into compliance with its permit. The DEC working committee found this system to be fair, but it was removed from HB 167 and replaced with a fixed five-year permit which deleted these safeguards. 4) Felony penalties had been removed from the permit penalty section of HB 167. This meant that if someone knowingly and maliciously caused a discharge which killed someone, he or she could only be charged with a misdemeanor. 5) There were provisions in HB 167 which made it effectively impossible for state or local government to require standards more stringent than those required by the federal Clean Air Act. Number 300 MR. HEATH stated that for the reasons listed above, the Lobby believed that this legislation would spawn a rat's nest of litigation and should be defeated. Number 320 RESA JERREL, representing the NATIONAL FEDERATION OF INDEPENDENT BUSINESS (NFIB), spoke in favor of HB 167. She stated that NFIB's main concern was that the DEC not go beyond the federal standards. Number 363 AIMEE BOULANGER, COMMUNITY COORDINATOR, ALASKA CENTER FOR THE ENVIRONMENT, spoke via teleconference from Anchorage in opposition to HB 167. She stated that the DEC working group did not represent all factions interested in clean air issues. Missing from the group were representatives from small business, public health and tourism. The group also had as a rule that passage takes a two-thirds vote, which meant that industry had the upper hand. Ms. Boulanger stated that her group felt that industry came to the table in good faith and with an attitude of compromise. Because of the hard work and compromise, the product of the working group was good and fair and the Alaska Center for the Environment supported it. MS. BOULANGER noted, however, that HB 167 was not what came out of the working group. Ms. Boulanger also noted that the timber industry was allowed to literally sit at the table and help craft HB 167. Number 483 CLAUDIA ECHAVAMA testified that HB 167 would not improve the air quality problems in Alaska. Ms. Echavama believed that HB 167 should encourage reduction of pollution from businesses and motor vehicles. Two cities in Alaska were in violation of the Clean Air Act, she said. Ms. Echavama stated that HB 167 should be addressing not only how the state could maintain current air quality in Alaska, but how the state could go further than the status quo to clean up some problems that had already been created. MS. ECHAVAMA noted that HB 167 decreased the amount of public participation instead of increasing it. CHAIRMAN PORTER noted that the next person to testify, CHERYL RICHARDSON, had addressed the committee at a previous hearing on HB 167 and, unless she had something to add, he would reserve her testimony. Number 529 MS. RICHARDSON stated that she was pleased that the committee was hearing this bill via teleconference and that she did not have anything to add at this time. Number 542 REP. MARK HANLEY, PRIME SPONSOR OF HB 167, testified that the fee structure, the general permits, and the judicial standing portion of HB 167 were a part of the working group's package. Rep. Hanley expressed his opinion that some of the statements heard from the previous speakers were not entirely accurate. Number 594 CHAIRMAN PORTER asked MS. MARGOT KNUTH, from the DEPARTMENT OF LAW, and MR. TOM CHAPPLE, from the DEC, to join Rep. Hanley and the Judiciary Committee at the table to discuss the amendments forthcoming. REP. PHILLIPS moved to adopt the draft Judiciary Committee substitute dated April 2, 1993. There being no objection, it was so ordered. Number 615 REP. NORDLUND asked that someone explain the difference between that committee substitute and an earlier draft dated April 1, 1993. Number 618 MR. CHAPPLE explained the changes which the Senate Resources subcommittee had made, and which were incorporated into the April 2, 1993, draft. Number 644 REP. DAVIDSON asked what effect these changes had. MR. CHAPPLE explained that the effect would be that the department could specify exactly what was required in specific types of applications. Number 650 REP. DAVIDSON asked if this could not be done by regulation. MR. CHAPPLE commented that this bill provided for the flexibility needed in preparing applications. Number 691 REP. DAVIDSON asked for clarification on whether by taking out the term "monitoring" the statutes would have more or less flexibility. Number 696 REP. HANLEY stated that the bill allowed the department to ask for "other" information so that rather than utilizing the term "monitoring," the department could ask for specific information. Number 707 CHAIRMAN PORTER added that this gave DEC the authority to ask for additional information when the situation warranted. Number 713 REP. DAVIDSON stated his belief that taking out this particular section of statute, even with adding the flexibility of asking for "other information," lessened the overall standards, thus weakening the statute. Number 734 MR. CHAPPLE directed the attention of the committee to section 46.14.140 of the bill. Mr. Chapple stated his belief that this section adequately met the federal requirements. Number 767 REP. HANLEY pointed out that this particular change was asked for by the DEC working group and was subsequently adopted by the Senate Resources subcommittee. Number 772 MR. CHAPPLE noted the clarifying changes in section 46.14.015. Number 788 REP. DAVIDSON asked what set the standard for justification for the written requirement. Number 792 MR. CHAPPLE answered that there were provisions in the bill that stated that the regulations must be found reasonable based upon the best scientific information available to protect the public. TAPE 93-53, SIDE B Number 000 MR. CHAPPLE noted that the definition of "regulated air contaminant," which appeared on page 32 of HB 167, had been expanded in response to a comment by the Environmental Protection Agency that the previous definition was under- inclusive. Number 041 REP. HANLEY pointed out that a definition regarding "lien expenditures" was pulled out because it was deemed unnecessary. Number 063 CHAIRMAN PORTER suggested that the committee now deal with the amendments to HB 167. REP. PHILLIPS moved Amendment 1. This amendment clarified the types of findings which had to be made before adopting regulations. There being no objection, Amendment 1 was adopted. Number 093 REP. NORDLUND moved Amendment 2. This amendment would allow for state or local governmental agencies other than the DEC to collect fees under HB 167. Number 142 MS. KNUTH stated that she thought that the amendment was appropriate. Number 147 REP. JAMES also supported the amendment but wondered about the mechanics of implementing the amendment. Number 172 MR. CHAPPLE answered that HB 167 was developed with the concept that local governments would not issue separate billings. The DEC would be the billing agency, but if a local government was a partner in reviewing permit applications, the cost incurred by it would be reflected in the bill generated by the DEC and then refunded back to the local government. REP. JAMES stated that the language seemed confusing. Number 192 REP. DAVIDSON noted that legal counsel had informed him that the amendment was probably a good idea. Number 203 MS. KNUTH suggested that the committee get some advice from the Civil Division of the Department of Law. Number 239 REP. NORDLUND inquired if this would create problems with duplicative billings. MR. CHAPPLE pointed out another section of the bill that prohibited anyone but the DEC from billing. There being no objection, Amendment 2 was adopted. Number 274 REP. NORDLUND offered Amendment 3. This amendment would prohibit a person from performing peer review for a regulation that, if adopted, would set a requirement that must be complied with by a facility owned or operated by the person or by the person's employer. Number 292 REP. PHILLIPS inquired if the peer review panel changed with every permit. REP. NORDLUND answered that he understood it to be a different panel for each permit. Number 303 MR. CHAPPLE noted that peer review would only be utilized when something was done that went beyond federal law. CHAIRMAN PORTER asked if the panels would address a particular problem in a particular circumstance or if they would be looking at a more across-the-board type of scenario which would, once decided, affect many different permits. MR. CHAPPLE answered that the panels could review a particular problem that would affect any number of permittees, but that would be a rare occurrence. There being no objection, Amendment 3 was adopted. Number 368 REP. NORDLUND moved Amendment 4. This amendment would give the DEC the flexibility to issue permits for any amount of time up to five years. Rep. Nordlund suggested that the DEC would then not be limited to giving five year permits to those permittees which had not come into compliance with the law. Number 393 REP. HANLEY noted that this issue had been discussed at the last hearing and the five year permits were thought to be adequate. MR. CHAPPLE explained in some detail the compliance section of HB 167. A roll call vote was taken on Amendment 4 with the following result: Nordlund yes Phillips no Davidson yes Green no Kott no James no Porter no So, Amendment 4 failed. Number 488 REP. NORDLUND moved Amendment 5 and explained that this amendment would increase the interest charged for nonpayment of penalties. Number 515 REP. HANLEY stated that the percentage rate in the present statute was meant to recoup actual costs, not to serve as a penalty. Number 532 REP. GREEN suggested a friendly amendment to Amendment 5 to state that the interest would be the prime interest rate plus two percent. REP. NORDLUND concurred with the friendly amendment to Amendment 5. There being no objection, Amendment 5, as amended, was adopted. Number 564 REP. NORDLUND moved Amendment 6 and explained that the amendment would delete the words "private, substantive" from page 12, line 20. REP. NORDLUND believed that the language as it now stood was too narrow in scope and that standing to sue should be opened up to others who might be aggrieved under the law. REP. JAMES believed that it was important to define who could take action and who could not. Number 612 REP. HANLEY quoted an opinion by Assistant Attorney General Robert Reges stating that he believed that the definition should be tightened up. A roll call vote was taken on Amendment 6 with the following result: Phillips no Davidson absent Kott no Green absent James no Nordlund yes Porter no So, Amendment 6 failed. Number 651 REP. NORDLUND moved Amendment 7 and explained that this would provide the public an opportunity to participate in amending and modifying permits. REP. PHILLIPS asked if a modification of a permit would go through a peer review. Number 680 MR. CHAPPLE answered that it would not. REP. HANLEY asked for clarification on what the federal law required regarding public participation. Number 691 MR. CHAPPLE stated that he did not fully understand what was intended with Amendment 7. MR. CHAPPLE detailed what was currently required. 1. In all cases for new permits there was a public comment period. 2. There currently was not a public comment period for permit renewals but that would change under the new federal law. 3. Permit amendments were reserved for minor changes such as address, name of owner, etc.; things that did not affect emissions did not require public comment. 4. Minor changes to permits that did raise emission levels sometimes required public comment. 5. Significant changes to permits required public comment. MR. CHAPPLE noted again that he was unsure of what Rep. Nordlund's intentions were with Amendment 7. TAPE 93-54, SIDE A Number 000 REP. NORDLUND stated that the intent of Amendment 7 was to give broad latitude to the DEC to decide what, if any, form of public participation would be allowed. CHAIRMAN PORTER inquired if Rep. Nordlund intended this amendment to apply only to subsection 3. Number 022 REP. NORDLUND responded that, as the amendment was currently drafted, it applied to subsections 1, 2 and 3, but that it would be best if it only applied to subsection 3. REP. PHILLIPS noted that under federal law, subsection 3 already required public comment. MR. CHAPPLE responded that Rep. Phillips was correct in her assessment, but added that there was some room for debate as to what changes to the permits would fall under subsections 1, 2 and 3. MR. CHAPPLE suggested that Amendment 7 not address subsection 1 and that the committee limit its discussion to subsections 2 and 3. Number 057 REP. NORDLUND asked for clarification on subsection 2. MR. CHAPPLE explained that subsection 2 was somewhat ambiguous due to pending litigation on the federal level. MR. CHAPPLE gave an example of the type of permit change that would fall under this section. Number 123 REP. NORDLUND moved to modify the amendment to apply only to subsection 2. MR. CHAPPLE suggested that applying the amendment to subsection 3 would be redundant. Number 137 REP. PHILLIPS asked what the reason was for needing this amendment to subsection 2. CHAIRMAN PORTER responded that the amendment would require public participation on some permit changes. MR. CHAPPLE noted that there was litigation pending on the federal level regarding this issue. The amendment would give DEC the authority to possibly avoid some of these problems. Number 179 REP. JAMES stated that this section should not be amended to include discretionary public review as the changes covered in this section were minor. Number 198 REP. NORDLUND noted that the changes might be minor, but the amount of emissions could increase significantly. REP. DAVIDSON stated that he was in favor of Amendment 7 to encourage public participation and give DEC the discretion to ask for it when it felt necessary. Number 227 REP. GREEN suggested that the word "shall" be changed to "may" in Amendment 7. REP. NORDLUND noted that the word "shall" applied to whether or not DEC would adopt regulations and not if they would require public participation. Number 246 REP. HANLEY discussed further the use of the words "shall" and "may." Number 273 CHAIRMAN PORTER stated that he believed that the amendment would add more confusion. REP. DAVIDSON wondered if, with or without the amendment, this section encouraged or discouraged public participation. Number 297 REP. NORDLUND moved that the amendment be amended to change the word "shall" to "may" and the word "section" to "paragraph" and delete "to implement this section." There being no objection to the amendment to Amendment 7, it was so amended. There being no objection to the adoption of Amendment 7 as amended, it was adopted. Number 340 REP. NORDLUND moved Amendment 8 and stated that section 46.14.010 was more stringent than the federal regulations except under certain regulations and that it tied the DEC's hands. REP. JAMES believed that the findings required under the current proposal should stand. Number 360 REP. NORDLUND stated that the state needed to be responsible for its destiny and not simply rely on the federal government to set the standards. Number 425 A roll call vote was taken on Amendment 8 with the following result: Green no Davidson yes Kott no Nordlund yes Phillips no James no Porter no So, Amendment 8 failed. Number 447 MS. KNUTH testified regarding the criminal penalties HB 167 would provide. She explained that the bill gave the Department of Law all the flexibility it needed to prosecute criminal violations. Ms. Knuth added that it was not true that HB 167 would allow what otherwise would be a felony under the law to be only prosecuted as a misdemeanor. Number 477 REP. PHILLIPS made a motion to move CSHB 167(JUD) as amended out of committee. A roll call vote was taken, with the following result: Green yes Nordlund no Kott yes Davidson no Phillips yes James yes Porter yes So, CSHB 167(JUD) was moved from committee. CHAIRMAN PORTER announced that the committee would take up HB 93 next.