Legislature(2005 - 2006)CAPITOL 124

03/16/2005 01:00 PM House RESOURCES

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01:15:14 PM Start
01:25:31 PM HB153
02:23:11 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Bills Previously Heard/Scheduled
Moved CSHB 153(RES) Out of Committee
HB 153-POLLUTION DISCHARGE & WASTE TRMT/DISPOSAL                                                                              
CO-CHAIR RAMRAS announced  that the only order  of business would                                                               
be  HOUSE BILL  NO. 153  "An Act  relating to  regulation of  the                                                               
discharge of  pollutants under  the National  Pollutant Discharge                                                               
Elimination System; and providing for an effective date."                                                                       
BRIAN  KRAFT, Owner,  Fishing  Lodge, said  he  helped start  the                                                               
Bristol  Bay Alliance,  which is  a non-profit  group devoted  to                                                               
help educate locals about issues  that may adversely affect their                                                               
Native cultural  ways of  life.   He said  state primacy  for the                                                               
National  Pollutant  Discharge  Elimination System  (NPDES)  will                                                               
mean less  staff to  help enforce  and inspect  activities, which                                                               
could  adversely affect  habitat  and waterways.    The state  of                                                               
Alaska has spent  time and financial resources  in promoting wild                                                               
and fresh  Alaska salmon,  and should look  at more  staffing and                                                               
enforcement instead  of less  to ensure  that habitat  and salmon                                                               
bearing  streams are  protected.   He said  people who  depend so                                                               
heavily on salmon for subsistence deserve more consideration.                                                                   
MR.  KRAFT said  primacy  would create  bigger state  government.                                                               
The federal government is willing  to oversee and bear the costs,                                                               
he  said, and  Alaska should  be  looking at  ways to  streamline                                                               
state  government.   He concluded  that he  finds it  troublesome                                                               
that permit writers will be  working closely or contracted by the                                                               
permittees, as if the  fox is in charge of the  henhouse.  If the                                                               
state is  leaning one  way or  another, pro-development  or anti-                                                               
development, it would be too easy  for local permit writers to be                                                               
influenced, he said.                                                                                                            
REPRESENTATIVE  CRAWFORD suggested  that both  federal and  state                                                               
programs run  the risk of  being politicized, and wouldn't  it be                                                               
better to have regulators closer to the operations.                                                                             
MR. KRAFT said he sees the current administration as pro-                                                                       
development, and  if a  company wants to  develop a  mine, Alaska                                                               
Department  of Environmental  Conservation  (DEC) permit  writers                                                               
will be working for a governor who  is pushing it.  He added that                                                               
it  is  easier   to  be  influenced  by   the  local  government,                                                               
especially  in the  small  state  that Alaska  is.   The  federal                                                               
regulators  are   further  away  from  the   pressures  of  local                                                               
government, he stated.                                                                                                          
CO-CHAIR SAMUELS said  it could cut both ways,  because Mr. Kraft                                                               
could get  frustrated with delays if  he wanted a permit  for his                                                               
lodge.  The bill is not trying to pick a side of pro or anti-                                                                   
development, he said.                                                                                                           
1:25:31 PM                                                                                                                    
MR.  KRAFT   said  the  reduction   in  staff  looks   like  less                                                               
enforcement, and the costs will be shouldered by Alaskans.                                                                      
1:27:53 PM                                                                                                                    
REPRESENTATIVE SEATON asked if small permits are done by DEC.                                                                   
DAN   EASTON,  Director,   Division  of   Water,  Department   of                                                               
Environmental Conservation, said DEC  does the small permits, but                                                               
the Environmental Protection Agency  (EPA) does the vast majority                                                               
of the permits.                                                                                                                 
REPRESENTATIVE LEDOUX noted  that in the current  system there is                                                               
a special  relationship between the  EPA and  tribal governments,                                                               
and asked what the state will do about that.                                                                                    
MR. EASTON  said it  is complex,  but EPA  has an  obligation for                                                               
government-to-government   consultation,  and   when  the   state                                                               
applies to  EPA for primacy,  EPA will  have to consult  with the                                                               
tribes.  At  that time, the tribes  will likely ask EPA  to add a                                                               
condition  that  the  state  will  have to  do  the  same  during                                                               
permitting.   It will  be less  formal, but it  still will  be an                                                               
obligation, he said.                                                                                                            
REPRESENTATIVE LEDOUX  said there are many  communities that have                                                               
tribal governments.   What happens  when they need a  permit, she                                                               
MR. EASTON  said DEC would treat  a tribal permittee just  as any                                                               
other permittee.                                                                                                                
REPRESENTATIVE SEATON  said EPA  and tribes have  a sovereign-to-                                                               
sovereign relationship, and he asked  what the state relationship                                                               
would be with the tribes.                                                                                                       
MR. EASTON said DEC discussed  this issue with attorneys, and the                                                               
obligation  is  not  sovereign   recognition,  it  is  simply  an                                                               
obligation  for consultation  before  taking  actions that  could                                                               
have a  significant impact on a  tribe.  There will  be no change                                                               
on the status of tribal governments in Alaska.                                                                                  
REPRESENTATIVE SEATON  asked if there  will be a  different level                                                               
of consultation for tribes than any other group of citizens.                                                                    
MR.  EASTON said  DEC's  obligation is  for  public comment,  and                                                               
consultation is not  an obligation of DEC.   Tribes, DEC expects,                                                               
would get consultation in addition to public notices.                                                                           
REPRESENTATIVE  CRAWFORD asked  who decides  what tribe  is being                                                               
CAMERON  LEONARD,  Senior  Assistant  Attorney  General,  Natural                                                               
Resources  Section,  Department  of  Law,  Fairbanks,  said  that                                                               
currently the  EPA decides  itself what tribes  are likely  to be                                                               
affected,  and sometimes  the  state does  not  agree with  EPA's                                                               
decisions.  He  said he is not  sure how it would  work under the                                                               
state program.                                                                                                                  
ROBERT  ROBICHAUD,  Manager,  Wastewater Permit  Unit,  Northwest                                                               
Region,  Environmental  Protection  Agency, said  EPA  identifies                                                               
what tribes might  be impacted by proposed permits,  and then EPA                                                               
will  invite the  tribe  to meet  with  them--usually before  the                                                               
public  notice.   If the  tribe requires  formal consultation,  a                                                               
representative also  meets with EPA  when the permit is  ready to                                                               
be issued.   The state would develop similar  procedures and work                                                               
with EPA on such when applying for primacy.                                                                                     
1:39:39 PM                                                                                                                      
REPRESENTATIVE  SEATON  said he  talked  with  DEC and  expressed                                                               
concern with page 2, lines 3  and 4, regarding expanding the work                                                               
group beyond the permittees so that the public will be involved.                                                                
MR. EASTON  said DEC did  not prepare  anything.  "The  bill says                                                               
the permittee will  have access to the permit after  the close of                                                               
the  public comment  period.   We have  said on  the record  that                                                               
[DEC's] intent...[would  be that] we couldn't  give the permittee                                                               
exclusive access  to the permit at  that point in time,  and that                                                               
would  be our  intent that  the  permit would  be made  available                                                               
after  the public  comment  period closes  to  the permittee;  it                                                               
would  be posted  on  the web;  and would  be  made available  to                                                               
anybody that  would have  provided comment  on the  draft permit.                                                               
We do  think that  is a  legitimate and good  point, but  at this                                                               
point we haven't prepared an amendment."                                                                                        
REPRESENTATIVE SEATON  said that  was one of  his points  he will                                                               
bring up later, but currently  he is speaking about the exclusive                                                               
make-up of the work group.                                                                                                      
MR. EASTON apologized  and said DEC believes that  the work group                                                               
consisting of  the permittees but  open to the public  works very                                                               
well.  He said he suspects it  would be fine to open the meetings                                                               
up to one or two members of the public.                                                                                         
1:43:45 p.m.                                                                                                                    
REPRESENTATIVE SEATON  moved to adopt conceptual  Amendment 1, as                                                               
     Page 2, line 3, after "permittees"                                                                                         
     Insert ", the public"                                                                                                      
     Page 2, line 4, after "meet"                                                                                               
        Insert "in a public forum noticed under rules of                                                                        
CO-CHAIR SAMUELS objected  so DEC can tell the  committee what it                                                               
does now with public notices.   He said he doesn't have a problem                                                               
with someone like Mr. Kraft joining  the group, but "I would have                                                               
a lot of problem  with a work group this size,  and we've got the                                                               
Sierra Club and the Audubon  Society and the Trustees for Alaska,                                                               
and, and,  and, because that's not  what we're after, and  I want                                                               
to clarify  that on  the record  that we  don't want  millions of                                                               
dollars  of outside  money coming  in with  a vested  interest in                                                               
simply stopping development."                                                                                                   
REPRESENTATIVE SEATON said the goal  is to broaden the work group                                                               
to include  members of the  public.   We, as a  legislative body,                                                               
need to ensure that the Alaska  public is involved, he said.  The                                                               
amendment does  not define  who that  would be,  and he  does not                                                               
want the public to be the majority of the work group.                                                                           
CO-CHAIR  SAMUELS  said  the  public   member  should  not  be  a                                                               
permittee who is not affected  by the particular permit involved.                                                               
He removed his objection.                                                                                                       
There being no objection, Amendment 1 carried.                                                                                  
REPRESENTATIVE SEATON noted  that page 5, lines  12-14, gives the                                                               
permittee an  opportunity to  discuss the  permit with  DEC after                                                               
the public  comment period and not  in a public forum.   "This is                                                               
very problematic," he  said.  He stated that DEC  just said it is                                                               
not their  intent.  This could  allow for a lot  of pressure upon                                                               
DEC staff  while preparing  a permit.   A  closed meeting  is not                                                               
DEC's  intent,  but  that  is  what  the  legislation  says,  and                                                               
Representative Seaton said he would like to amend it.                                                                           
MR. EASTON said on line 12  after program, insert "or comments on                                                               
a draft permit", and this would open the process to others.                                                                     
REPRESENTATIVE  SEATON  said  line 13--where  the  permittee  can                                                               
discuss the  permit with  staff--allows for  private negotiations                                                               
after a  draft permit  is issued.   He  said normally  people can                                                               
submit  comments after  a draft  comes out,  and no  one has  the                                                               
statutory ability to discuss it privately with staff.                                                                           
CO-CHAIR RAMRAS  said he has  many times gone  to DEC prior  to a                                                               
final permit  for his food  service operations,  "without forcing                                                               
DEC to  come out  in a formal  capacity."  He  said he  has lived                                                               
under item  three and finds  it a  positive part of  the process.                                                               
"Item 3,  here, is  one of the  best features of  DEC, as  I find                                                               
them to be  a very accessible state agency that  has been helpful                                                               
and has  accelerated the  process in my  dealings with  them," he                                                               
1:53:28 PM                                                                                                                    
REPRESENTATIVE SEATON said this is  not just a kitchen permit; it                                                               
can be  discharges that  affect the general  public.   He offered                                                               
conceptual Amendment 2 which will read:                                                                                         
     Page 5, line 12, after "program"                                                                                           
     Insert "or comments on a draft permit"                                                                                     
REPRESENTATIVE SEATON said, in  response to Representative Gatto,                                                               
someone applying for a permit might  need to talk with DEC before                                                               
the application  or permit goes  out for public review,  and that                                                               
is the appropriate  time for give and take.   But Section 3 gives                                                               
the permittee  the right  to have  private negotiations  with DEC                                                               
after  public comments  are done.   This  is not  the appropriate                                                               
time  to change  a permit,  he  opined.   "It is  a very  unusual                                                               
situation," he said.                                                                                                            
CO-CHAIR SAMUELS said  in the real world  sometimes the permittee                                                               
knows  the most  about the  problems of  a permit,  and sometimes                                                               
that expertise  can help  fix poor  interpretations.   "You don't                                                               
want to change  the general gist.  You don't  want someone coming                                                               
in there and gutting it," he said.                                                                                              
REPRESENTATIVE SEATON said  that is why, in the  development of a                                                               
permit,  it is  a good  idea, but  after the  agency makes  draft                                                               
regulations, this  amendment would allow the  permittee or anyone                                                               
who has commented to review the final permit.                                                                                   
1:58:15 PM                                                                                                                    
CO-CHAIR  RAMRAS  said  he  believes   the  committee  agrees  on                                                               
conceptual  Amendment  2  which  says "or  comments  on  a  draft                                                               
permit", but the current discussion  is on a third amendment that                                                               
hasn't been proposed.                                                                                                           
Hearing no objection, Amendment 2 carried.                                                                                      
REPRESENTATIVE SEATON offered conceptual Amendment 3:                                                                           
     Page 5, line 13,                                                                                                           
         remove ", and to discuss it with staff of the                                                                          
CO-CHAIR RAMRAS objected.                                                                                                       
REPRESENTATIVE SEATON says this still  allows a person to comment                                                               
to the department  to make clarifications, just like  you do, but                                                               
it does not become a negotiation outside of the public arena.                                                                   
CO-CHAIR RAMRAS said  closed caucuses are "where we get  a lot of                                                               
our work done."                                                                                                                 
CO-CHAIR  SAMUELS asked  what  the appeal  process  is after  the                                                               
final permit.                                                                                                                   
MR. EASTON  said the  state has an  informal appeal  process, and                                                               
there  is  an  opportunity  for an  adjudicatory  appeal  to  the                                                               
CO-CHAIR SAMUELS asked  if a permittee talked DEC  into gutting a                                                               
permit, would there  be a process and a paper  trail to take care                                                               
of it.                                                                                                                          
MR. EASTON said that is correct.                                                                                                
CO-CHAIR SAMUELS  said the  original rule  of the  Federal Energy                                                               
Regulatory Commission  (FERC) "was  180 degrees and  10,000 miles                                                               
from where  we ended up.   If we had  to work off of  the working                                                               
draft model  and not  been able  to interact  with the  staff, we                                                               
don't know  where we would have  ended up," he said,  because the                                                               
legislature and all  of the players were at the  table to discuss                                                               
common sense issues.                                                                                                            
REPRESENTATIVE CRAWFORD said the  chronology of Co-Chair Samuels'                                                               
example  is confused.    The  FERC rule  was  changed during  the                                                               
public  comment period.   Representative  Seaton is  referring to                                                               
the  permittee's  opportunity  to  go in  later  with  no  public                                                               
REPRESENTATIVE  SEATON clarified  that what  Co-Chair Samuels  is                                                               
talking about  is Section 2,  "which I  didn't modify.   You have                                                               
draft regulations,  you work  through those,"  he said,  and then                                                               
this legislation allows  the permittee to go in  after the public                                                               
process, after everything has been  worked out, and negotiate for                                                               
CO-CHAIR RAMRAS said he likes the  way the bill reads now because                                                               
it is useful for his  restaurant to have one-on-one meetings with                                                               
health inspectors to  clarify and clean up things  before a final                                                               
permit.   He opined  that it  is efficient and  a time  and money                                                               
saver.  "I haven't found  that it circumvents the public process;                                                               
I have found that it has enhanced  my ability, as a member of the                                                               
private  sector,  to  have  a   responsive  relationship  with  a                                                               
government agency."                                                                                                             
REPRESENTATIVE SEATON asked if currently  a permittee can come in                                                               
and discuss a final rule before  it is issued and after the draft                                                               
and public comment process.                                                                                                     
MR. LEONARD  said he believes that  EPA does not allow  that kind                                                               
of  consultation with  the applicant.    He added  that there  is                                                               
nothing  under  state  law  that  would  prohibit  this  kind  of                                                               
consultation after public notice.                                                                                               
MR. ROBICHAUD said  that once a permit has gone  through a public                                                               
process, EPA does not have  consultation with anyone.  He pointed                                                               
out that  if DEC  makes significant  changes resulting  from such                                                               
consultation,  there  will  be a  requirement  to  re-notice  the                                                               
2:09:20 PM                                                                                                                      
A roll call vote was  taken.  Representatives Seaton, Kapsner and                                                               
Crawford   voted   in   favor    of   conceptual   Amendment   3.                                                               
Representatives Elkins, LeDoux, Olson,  Gatto, Samuels and Ramras                                                               
voted against it.  Therefore,  conceptual Amendment 3 failed by a                                                               
vote of 3-6.                                                                                                                    
REPRESENTATIVE CRAWFORD asked about the use of contractors.                                                                     
MR.  EASTON  replied  that  the   work  group  recommended  using                                                               
contractors  to  make  sure  DEC   has  sufficient  resources  to                                                               
expedite complex permits.                                                                                                       
2:12:05 PM                                                                                                                    
REPRESENTATIVE  CRAWFORD asked  if that  is why  there are  fewer                                                               
employees needed.                                                                                                               
MR. EASTON said that is true in  part, "but I don't want to leave                                                               
you with the impression that the  way that we can run the program                                                               
with  eight fewer  employees is  solely because  we've privatized                                                               
some of the work and given it to contractors...probably some of                                                                 
2:12:50 PM                                                                                                                    
MR. EASTON said that EPA makes good use of contractors.                                                                         
REPRESENTATIVE SEATON inquired if the fiscal note contains the                                                                  
cost of contractors.                                                                                                            
MR. EASTON said it does.                                                                                                        
CO-CHAIR SAMUELS moved conceptual Amendment 4, which read                                                                       
[original punctuation provided]:                                                                                                
     Page 5, Line 1                                                                                                             
     Add a new Section to read:                                                                                                 
   · Sec. 6 The uncodified law of the State of Alaska is                                                                      
     amended by adding a new section to read:                                                                                   
     Annual Reports on Program Assumption and Execution                                                                       
     Within the  first ten days  of each  annual Legislative                                                                    
     session the  department shall submit  a report  to both                                                                    
     houses  of the  Legislature  and to  the Governor  that                                                                    
     includes the following information:                                                                                        
   (1)    the Department's progress in preparing and                                                                            
     submitting its  application to the EPA  by the intended                                                                    
     deadline of June 30, 2006;                                                                                                 
   (2)    EPA's   progress   in    reviewing   the   state's                                                                    
     application and  expected or  actual date  and contents                                                                    
     of EPA's approval;                                                                                                         
   (3)    the Departments and EPA's progress during the                                                                         
     five-year NPDES  program transition  period, describing                                                                    
     which  program responsibilities  have been  transferred                                                                    
     to the  Department, which retained by  EPA, and whether                                                                    
     the transition is on schedule; and                                                                                         
   (4)    once the Department is running an approved NPDES                                                                      
     permitting program, the time  and costs associated with                                                                    
     issuance of permits, compared to  the time and costs it                                                                    
     formerly took EPA to issue such permits.                                                                                   
   (a)    The report under this section shall include:                                                                          
   (1)       Time for each permit issued from initial                                                                           
     application to actual issuance of the permit;                                                                              
   (2)       An explanation as to why, if the permitting                                                                        
     process exceeds 18 months.                                                                                                 
   (3)       The costs of issuing the permit to the                                                                             
   (4)       The costs of issuing the permit to the                                                                             
   (5)       Whether these costs are an increase or                                                                             
     decrease; and                                                                                                              
   (6)       How and why the increase or decrease was                                                                           
CO-CHAIR RAMRAS objected for discussion purposes.                                                                               
CO-CHAIR SAMUELS  said if  timesavings are  not realized  with HB
153,  the legislature  has not  done  much.   He said  conceptual                                                               
Amendment 4 will  require DEC to report on the  transition and if                                                               
and  why any  permit takes  longer  than 18  months.   This is  a                                                               
"hammer in here  as that there'll be  some consequences that...if                                                               
the time  savings do  not happen and  we're not  streamlining the                                                               
process,  we want  to know  why, and  we can  revisit the  entire                                                               
CO-CHAIR RAMRAS assured that it  is a friendly amendment that DEC                                                               
agrees with.                                                                                                                    
REPRESENTATIVE LEDOUX said we may  be closing the barn door after                                                               
the horse leaves.  She  questioned spending time and money before                                                               
being assured of the benefits.                                                                                                  
CO-CHAIR RAMRAS  noted that all  but five states have  taken over                                                               
2:16:30 P.M.                                                                                                                    
BEN  BROWN,  Legislative  Liaison,  Department  of  Environmental                                                               
Conservation, said,  "All prognostications are imperfect."   This                                                               
legislation begins  a process towards  assumption of  primacy, he                                                               
said, and  the amendment  is not  just a  report once  primacy is                                                               
gained, but it provides the  legislature with information through                                                               
the  process.   The  supposition  that  state primacy  will  work                                                               
better is in the fact that  no state "has ever had primacy yanked                                                               
back by the EPA."                                                                                                               
CO-CHAIR SAMUELS  said, "We know it  is taking too long  now," to                                                               
have to  deal with both the  federal and state government,  so he                                                               
will support  the legislation in  order to try to  streamline the                                                               
CO-CHAIR RAMRAS removed his objection.                                                                                          
There being no objection, Amendment 4 carried.                                                                                  
REPRESENTATIVE  SEATON said  he  is concerned  that  the bill  is                                                               
adding 13 new employees in addition  to the 254 that are proposed                                                               
elsewhere  in  the   governor's  budget.    He   added  that  the                                                               
legislature has  tried to  shift funding  sources to  the federal                                                               
government  instead of  the general  fund,  and HB  153 does  the                                                               
opposite.   He sees a  similar issue  with the state  taking over                                                               
the Alaska Coastal  Management Program, and it is "one  heck of a                                                               
mess."  Alaska is clashing with  the federal government.  He said                                                               
the state  will lose a lot  of federal funds, and  he hasn't seen                                                               
enough  evidence that  there  will be  streamlining  in time  and                                                               
money.  He said he does not want to move forward on HB 153.                                                                     
REPRESENTATIVE CRAWFORD said  he likes the idea  of having things                                                               
done  here  in Alaska,  but  he  has  concerns  over the  use  of                                                               
contractors.   Privatizing  work  that state  employees could  do                                                               
usually brings  little or  no savings, and  sometimes there  is a                                                               
financial loss.                                                                                                                 
CO-CHAIR SAMUELS moved to report HB  153 as amended out of out of                                                               
committee  with  individual   recommendations  and  the  attached                                                               
fiscal notes.   Hearing no objection, CSHB  153(RES) was reported                                                               
from the House Resources Standing Committee.                                                                                    

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