Legislature(2007 - 2008)BARNES 124
03/19/2007 01:00 PM House RESOURCES
| Audio | Topic |
|---|---|
| Start | |
| HB165 | |
| HB149 | |
| HB128 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 165 | TELECONFERENCED | |
| + | HB 128 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 149 | TELECONFERENCED | |
HB 149-POLLUTANT DISCHARGE PERMITS 1:13:44 PM CO-CHAIR GATTO announced that the next order of business would be HOUSE BILL NO. 149, "An Act relating to the authority of the Department of Environmental Conservation to require certain monitoring, sampling, and reporting and to require permits for certain discharges of pollutants; relating to criminal penalties for violations of the permit program; and providing for an effective date." 1:14:36 PM REPRESENTATIVE GUTTENBERG expressed concern about the loss of some of the research that might not be directly related to a specific project. He asked if the loss of research could be a loss to permitting or to other projects in the future. 1:16:46 PM CAMERON LEONARD, Senior Assistant Attorney General, Natural Resources Section, Civil Division (Fairbanks), Department of Law, said that nothing in HB 149 will change or diminish the Department of Environmental Conservation's (DEC) ability and authority to do this kind of water body assessments and monitoring. The legislation merely has to do with which requirements, in connection with a particular project, belong in permits versus outside of the permits. 1:17:24 PM REPRESENTATIVE GUTTENBERG maintained that his concern is still who will do it. 1:17:55 PM REPRESENTATIVE WILSON moved that the committee adopt Amendment 1, which read [original punctuation provided]: Page 4, line 4: Following "pollutants": Delete "listed" Insert "as defined" Page 4, line 10: Following "(a)" Insert "and (d)" CO-CHAIR JOHNSON objected to Amendment 1 for discussion purposes. 1:18:36 PM MR. LEONARD stated that the changes in Amendment 1 are changes that were reached after considerable discussion with the Environmental Protection Agency (EPA) to address their concerns. The first change on page 4, line 4, addresses EPA's request that Alaska's term "waste material" be as broad as the EPA's term "pollutants." Although Section 6 of the legislation inserts a new subsection that would specify that, the EPA prefers that the language say, "includes pollutants as defined in" rather than "listed in". 1:19:37 PM CO-CHAIR GATTO asked if there is any possibility that something listed would be undefined. MR. LEONARD explained that the EPA wanted to be clear that Alaska's statute included those items listed as well as the definition. 1:20:12 PM MR. LEONARD then turned to the second portion of Amendment 1, which addresses the "state of mind" necessary to pursue criminal violations. He reminded the committee that negligent violations of the Clean Water Act (CWA) can give rise to criminal charges, although they do not have to. Alaska's statutes require criminal negligence under [AS 46.03].790 and thus to satisfy EPA and to show that the state's program is as stringent as EPA's, new subsection (i) is inserted. This new subsection specifies that for purposes of the Alaska Pollutant Discharge Elimination System (APDES) program, simple negligence is sufficient. To further clarify, the language "and (d)" was added to Section 8 in order to specify that the new program under subsection (i) would also apply to oil spills, subsection (d), since such would also be a violation of the CWA. 1:21:20 PM MR. LEONARD, in response to Representative Guttenberg, stated that the title of Section .790 is "Criminal penalties". He then confirmed Co-Chair Gatto's understanding that [statute] had simple negligence rather than criminal negligence in order to cover class A. Mr. Leonard further confirmed that this would also be under a class A misdemeanor. Therefore, no penalties are being changed. 1:21:57 PM REPRESENTATIVE SEATON asked whether this allows the state to select a gross negligence standard or something other than simple negligence. MR. LEONARD replied no, adding that a higher state of mind than EPA specifies cannot be required in order to have the program approved. He specified that [APDES] could require a higher state of mind if the desire is to pursue a felony charge or other higher charge. For a simple misdemeanor charge, more than negligence cannot be required and still meet EPA's approval criteria. 1:22:48 PM CO-CHAIR JOHNSON removed his objection to Amendment 1. There being no further objection, Amendment 1 was adopted. 1:23:07 PM REPRESENTATIVE SEATON expressed concern with regard to the scope of things that will be left out of NPDES permits and thus not available to the public. 1:24:59 PM LYNN TOMICH KENT, Director, Division of Water, Department of Environmental Conservation (DEC), related that revisions to the regulatory water quality standards are public noticed for comment, as well as all of the supporting science and information driving a potential change to the water quality standards. Therefore, basically anything the department has is available to the public also. 1:25:39 PM REPRESENTATIVE SEATON related his understanding that one of the intents for taking this primacy is to keep things outside of the permit requirement and thus it will not be available to third parties. Representative Seaton asked if information will still be available to third parties to propose additional revision of regulations for those requirements made outside the permit or does the information become public when the department decides to revise the regulations. MR. LYNN answered that any additional studies or additional information requested of the permittee outside the context of a permit is available for public review. 1:27:03 PM CO-CHAIR GATTO, referring to the language "into any waters" on page 3, line 1, clarified his understanding that the aforementioned language only refers to surface waters. He asked whether there is any value in adding the word "surface". MR. CAMERON highlighted that the full phrase is "waters of the United States", which is the language required in order to ensure that Alaska's program is as inclusive as that of the EPA's. The EPA was concerned, he related, that the former language "surface waters" isn't exactly the same as "waters of the United States". CO-CHAIR GATTO questioned whether the language refers to "surface water" or "subsurface waters." MR. CAMERON reminded the committee that the federal definition of "waters of the United States" also gets into wetlands, which may or may not be included in the definition of "surface waters" depending upon one's perspective. Mr. Cameron opined that the department felt it had to use the EPA's terminology in order to address their concerns. In further response to Co-Chair Gatto, Mr. Cameron related his agreement that HB 149 allows the state to deal with the federal government and take authority for enforcement as well as the permitting program itself. 1:28:45 PM MR. CAMERON, in response to Representative Seaton, said he believes that adopting the federal definition as was done in the regulations and using the terminology in HB 149 should not cause confusion, except that the federal definition itself is subject to ongoing litigation and recent decisions from the U.S. Supreme Court. If one reads the statute and regulations in tandem, the coverage of the program is clear. 1:30:08 PM REPRESENTATIVE SEATON related his understanding that one of the reasons [for HB 149] is to have less third-party suits for information. He noted that the department does not track the number of lawsuits threatened or filed and thus it does not know how many third-party suits about information that would not have been included under DEC's definition. REPRESENTATIVE SEATON expressed his concern that there is a $5.8 million fiscal note and the state is not gaining. He related his theory that when the state budget is reduced in future years and there are less [staff] then it will result in the delay of permit issuance. 1:31:43 PM MS. KENT clarified that the program is envisioned and budgeted as a $4.8 million program. She pointed out that DEC has already been engaged in a permitting program and working with EPA on its permitting program. The increase to the program was about $1.5 million which was the incremental amount that brought forward the full resources necessary to implement NPDES in the state. CO-CHAIR GATTO surmised that it is not a self-sustaining program and thus still needs general funds. MS. KENT related that currently the program has full funding under the base budget for implementation of the NPDES. In further response to Co-Chair Gatto, Ms. Kent opined that it would be up to the legislature how the funding goes in the future. She informed the committee that the DEC operates other programs under a primacy mode and all the programs that it takes on from the federal government are subject to ongoing federal review to ensure sufficient funding to implement the program. She then confirmed that [APDES] is funded in part by general funds, federal funds, and fees. The fees for the program were set by House Bill 361, which passed a number of years ago, that allows the department to charge for direct cost of providing services. 1:33:49 PM REPRESENTATIVE SEATON related his understanding that the fees are expected to almost double under NPDES primacy. MS. KENT replied yes. The department's direct cost of implementing the program in which the department writes, issues, and performs compliance work results in an increase in the department's direct costs by a factor of about 1.8. MS. KENT, in response to a question from Representative Guttenberg, related that at NPDES program approval, the department will need to revise the existing fees. The approach to the fees was established by House Bill 361 and that remains in place. The change is in regard to the direct work that will be done that supports the permitting and compliance, which will cause the fees to increase. 1:35:49 PM REPRESENTATIVE GUTTENBERG referred to the recommendations from the work group on page 20 of the NPDES Workgroup Report. He drew attention to the following language, "The large community wastewater workgroup member does not think primacy will provide significant benefits to this segment of the regulated community and does not support primacy." He invited comment. MS. KENT informed the committee that the large community wastewater workgroup member was from the Municipality of Anchorage (MOA). She related that the permit for Anchorage's facility will remain with EPA and will not transfer over to the state. Therefore, that member did not see any benefit to NPDES primacy since it would not impact Anchorage's facility. In further response to Representative Guttenberg, Ms. Kent related that DEC did not make any distinction, for work group purposes, regarding what is a large facility versus a small facility. 1:37:59 PM REPRESENTATIVE GUTTENBERG asked if Fairbanks, Wrangell, and Sitka are covered. CO-CHAIR GATTO surmised that Representative Guttenberg is interested in whether there is a fixed number that determines coverage or non-coverage. MS. KENT specified that all of the facilities with a discharge to a surface water body will need a NPDES permit. 1:38:44 PM MR. CAMERON related that the situation with MOA is unique in that it enjoys a waiver from the requirement of providing secondary treatment for its domestic wastewater. The waiver is only available to large municipalities that discharge to marine waters, and thus none of the Interior communities are eligible for that waiver. In fact, MOA may have the only facility enjoying that waiver. MS. KENT recalled that four to five communities qualify for the aforementioned waiver. She offered to provide the committee with a list of those facilities [enjoying the waiver]. She then pointed out that those facilities would still need to have a NPDES permit, but the EPA would maintain the responsibility to issue the permits and ensure compliance with those permits. The department would continue to certify those permits much like it already does with existing permits. 1:40:10 PM REPRESENTATIVE SEATON asked if the fees for those facilities would increase by a factor of 1.8 or would those fees remain at the level the EPA and the state charge. MS. KENT responded that the fees [for the facilities receiving a waiver] would be the same as they are today since those fees are based on the department certifying the permit. 1:41:23 PM REPRESENTATIVE EDGMON commented that this legislation addresses an enormous issue. He then asked whether HB 149 is all- encompassing to the point that one could say that it deals with the state's wastewater permitting program in its entirety. MS. KENT answered that HB 149 is all-encompassing in terms of wastewater discharges to waters of the U.S. Although the [department] does have other state authorities that require those discharging wastewater to the surface of the land or to ground water to obtain an authorization from DEC, that program is unaffected by these NPDES primacy efforts. 1:42:33 PM REPRESENTATIVE EDGMON, referring to the March 19, 2007, memorandum from Ms. Kent, highlighted that on the first page it relates that the CWA allows penalties of up to $31,500 per day per violation. Using the Pebble Mine as a backdrop, he inquired as to the amount of penalties. MR. CAMERON clarified that the department does not have the same penalty amounts as EPA because under the state's existing statutes the state can seek recovery in the amount of up to $100,000 for the initial violation and not more than $10,000 for each day after that. REPRESENTATIVE EDGMON clarified that his question was regarding placing HB 149 in relation to a project of the scope of the Pebble Mine. 1:44:57 PM REPRESENTATIVE EDGMON related his understanding that Section 2 seems to be straightforward in regard to requiring prior authorization from the department for the discharge of solid or liquid waste. However, Section 4(e)(4) includes the following qualifier "if the discharge is incidental to the activity and the activity does not produce a discharge from a point source". Therefore, he inquired as to why a similar qualifier is not included in Section 2. He also inquired as to whether [the aforementioned qualifying language] came from the original work group and is in addition to the EPA requirements. MR. CAMERON explained that Section 2(a) is the general statement that certain activities require authorization while Section 4(e) specifies exceptions that are not covered under Section 2(a). Section 4(e) specifies those activities that are exempt from the requirement of obtaining an authorization unless they result in a discharge into waters of the U.S. Therefore, discharges to land or ground water would not need prior state authorization. 1:47:27 PM REPRESENTATIVE EDGMON inquired as to who makes the determination as to whether the discharge is incidental to the activity. MR. CAMERON said that someone at DEC would have a judgment call to make. MS. KENT related that DEC's permit staff would make that decision when someone asks whether an authorization from DEC is necessary or from a public complaint in which someone questions what someone else is doing. 1:48:12 PM CO-CHAIR GATTO drew attention to page 2, line 25, which inserts the language "publicly owned treatment works". He asked if that language means only government owned. MR. CAMERON pointed out that it is a term that is defined in federal regulations to mean government owned, not privately owned. CO-CHAIR GATTO surmised then that if there was a privately owned treatment works that was larger than a similar government owned treatment works, there is an exclusion. MR. CAMERON noted his agreement, and related that the department tried to extend the scope of this exemption to include privately owned treatment works that have been authorized by the department. However, that would have gone beyond the exemption under federal law and could not be approved by EPA. 1:49:09 PM REPRESENTATIVE SEATON directed attention to page 3, line 19, which addresses firing/rifle ranges and the language: ", unless it results in a discharge into waters of the United States." In a situation in which a skeet or trap range and the pellets go into the water, he asked if these will be non-exempt and will DEC require a NPDES for lead in those areas. MS. KENT informed the committee that such facilities are currently required to obtain an NPDES permit from EPA and this [legislation] doesn't change the requirements for obtaining a NPDES permit for a firing range. 1:50:23 PM REPRESENTATIVE SEATON related his understanding that existing statute exempts such facilities, but the new language on page 3, line 19, changes that exemption to a non-exemption if the facility [discharges into] the water. MS. KENT reminded the committee that this portion of statute includes the disposal of liquids and solid waste to the lands and waters of the state. Therefore, the exemption was to remove the requirement to obtain a state authorization for firing munitions at a firing range. However, because EPA's NPDES permit program requires an NPDES permit for firing into waters of the U.S., the state NPDES does as well. Therefore, the department maintained a carve-out such that a permit is not required for a firing range that discharges to land. Still, a permit under the NPDES program run by the state or the EPA does require a NPDES permit. 1:51:47 PM CO-CHAIR GATTO recalled the firing range in Eagle River and reminded the committee that the lower end of the Eagle River is next to the inlet. If munitions land in wetlands, which ultimately end up in the waters of the U.S., "does that pretty much nullify everybody from doing anything every time," he asked. MS. KENT related her understanding that the EPA required the Eagle River Flats to apply for a NPDES permit for the range, which she opined is still an active range. She said she suspected that the EPA did not issue a permit, although it required a permit application to be submitted. 1:52:49 PM REPRESENTATIVE WILSON commented that in Sitka there is a firing range over waters, which led to a change in the makeup of the shot. 1:53:19 PM CO-CHAIR JOHNSON moved to report HB 149, as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 149(RES) was reported from the House Resources Standing Committee.
| Document Name | Date/Time | Subjects |
|---|