Legislature(2013 - 2014)BARNES 124

01/28/2013 01:00 PM RESOURCES

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Moved Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
Heard & Held
         HB  36-EXEMPT DISCHARGES FROM USE OF MUNITIONS                                                                     
1:03:04 PM                                                                                                                    
CO-CHAIR  SADDLER  announced  that  the first  order  of  business                                                              
would  be HOUSE BILL  NO. 36,  "An Act  exempting certain  federal                                                              
agencies  or  military  services  firing  or  using  munitions  on                                                              
active  ranges  from  prior  authorization   requirements  of  the                                                              
Department of Environmental Conservation."                                                                                      
1:03:42 PM                                                                                                                    
REPRESENTATIVE TAMMIE  WILSON, Alaska State  Legislature, speaking                                                              
as the  prime sponsor  of HB  36, informed  the committee  that in                                                              
2008 when  the Alaska Clean Water  Act was amended to  its current                                                              
form,  a  problem  was  created  with  the  state's  long-standing                                                              
military  munitions   exemption.    The  legislation   before  the                                                              
committee  proposes  to  amend AS  46.03.100(e)(7)  such  that  it                                                              
can't be misinterpreted  to restrict military exercises  on ranges                                                              
other  than in situations  in which  the federal  Clean Water  Act                                                              
applies.   She  pointed  out  that HB  36  reduces  the chance  of                                                              
litigation  in trying  to interpret  waters of  the U.S. and  said                                                              
Alaska is the  only state with this unclear interpretation  of the                                                              
Clean Water  Act.  Without the  proposed amendment in HB  36 there                                                              
is  the possibility  that military  ranges would  need to  curtail                                                              
operations  due to misinterpretation  of Alaska  law, even  if the                                                              
ranges are in  compliance with federal law.   She highlighted that                                                              
the proposed  amendment in HB 36  was vetted by  the Environmental                                                              
Protection Agency,  the Department of Environmental  Conservation,                                                              
the Department of  Defense, and the Alaska Department  of Military                                                              
& Veterans'  Affairs.   This legislation,  she related,  maintains                                                              
primacy, protects  the environment, and allows  military exercises                                                              
to continue without potential litigation.                                                                                       
1:05:39 PM                                                                                                                    
MAJOR  GENERAL   THOMAS  KATKUS,  Adjutant   General/Commissioner,                                                              
Department  of  Military  &  Veterans'  Affairs,  highlighted  the                                                              
strategic importance  of Alaska to the military as  a military and                                                              
training  platform.   No  other  places have  ranges  such as  the                                                              
Joint  Pacific Alaska  Range  Complex  (JPARC).   He  acknowledged                                                              
that in  this time  of constrained  resources,  all of the  states                                                              
and  all  of the  locations  in  which  the  U.S. has  forces  are                                                              
seeking areas  to be relevant and  to train vigorously.   Although                                                              
Alaska  has  great  areas  to  offer,  it  comes  at  an  expense.                                                              
Therefore,  Alaska needs to  ensure that  it's balanced,  not more                                                              
or  less restrictive  than other  areas,  and remain  fair and  in                                                              
line  with all  competitors.   Moving HB  36 forward  accomplishes                                                              
just that, he opined.                                                                                                           
1:07:00 PM                                                                                                                    
REPRESENTATIVE  SEATON,  referring  to  the language  on  page  2,                                                              
lines 18-19,  asked if HB 36 would  apply to all rifle  ranges not                                                              
just military active ranges.                                                                                                    
MAJOR GENERAL KATKUS deferred to others on line.                                                                                
1:07:51 PM                                                                                                                    
REPRESENTATIVE  TUCK  inquired  as  to whether  the  term  "active                                                              
ranges" means a  range where there is firing as  well as training.                                                              
He further  asked whether  any types  of maneuvers  take place  on                                                              
"active ranges."                                                                                                                
MAJOR  GENERAL KATKUS  clarified  that "active  ranges"  encompass                                                              
the  full suite  of military  training.   For  more specifics,  he                                                              
deferred to others on line.                                                                                                     
1:08:19 PM                                                                                                                    
CO-CHAIR SADDLER  inquired as  to the number  of active  ranges in                                                              
Alaska and their size.                                                                                                          
MAJOR GENERAL  KATKUS responded that  although most of  the active                                                              
ranges  are   located  on  the   federal  facilities,   there  are                                                              
different   types   of   ranges,  including   space   and   cyber.                                                              
Therefore, the ranges could be broadly defined.                                                                                 
CO-CHAIR SADDLER  then inquired as  to what risks the  active duty                                                              
component would encounter if HB 36 is not enacted.                                                                              
MAJOR   GENERAL   KATKUS   reiterated  that   in   this   resource                                                              
constrained environment  everyone is working  very hard to  be the                                                              
best location  for the military.   In a  worst case  scenario, the                                                              
possible  interpretation that  Alaska's law  restricts the  use of                                                              
Alaska military  ranges in  a manner not  required by  federal law                                                              
could be the tipping point and of critical importance.                                                                          
1:09:44 PM                                                                                                                    
REPRESENTATIVE  P. WILSON asked  whether it  is a moneymaker  when                                                              
other entities train in Alaska.                                                                                                 
MAJOR  GENERAL KATKUS  answered that  the National  Guard sees  no                                                              
benefit,  but there  is a  huge  impact to  the local  area.   For                                                              
instance, Red  Flag in the Eielson  Air Force Base  (Eielson) area                                                              
has  a huge  impact  in  the local  community.   The  presence  of                                                              
military  has  a significant  and  positive  impact on  the  local                                                              
REPRESENTATIVE  P.   WILSON  surmised  then  that   [the  possible                                                              
interpretation] has a  large impact on the economy  of Alaska as a                                                              
MAJOR GENERAL  KATKUS agreed  it could have  a very big  impact if                                                              
the interpretation  that Alaska's military ranges  were restricted                                                              
in a  manner not  required by  federal law  was the sole  decision                                                              
point regarding whether  to place, train, or station  resources in                                                              
1:11:21 PM                                                                                                                    
KEVIN WARD,  Regional Counsel,  Regional Environmental  and Energy                                                              
Office   -  Western,   Assistant   Secretary  of   the  Army   for                                                              
Installations,  Energy  &  Environment,  U.S.  Army,  speaking  on                                                              
behalf of the  Department of Defense (DoD)  Regional Environmental                                                              
Coordinator's Office  and military services in Alaska,  noted that                                                              
the committee  packet should  include a letter  of support  for HB
36   from    Clare   Mendelsohn,   DoD   Regional    Environmental                                                              
Coordinator, Region  10.  He said  the bill clarifies  language in                                                              
the  Alaska  Clean  Water  Act  so that  it  will  only  apply  to                                                              
military  ranges  if  required  by  the  federal  Water  Pollution                                                              
Control Act.   In other words, Alaska Department  of Environmental                                                              
Conservation (DEC)  remains the  permitting authority,  Alaska and                                                              
Alaska state government  remains the agency making  permitting and                                                              
enforcement  decisions.    For decisions  pertaining  to  military                                                              
ranges, Alaska  will look to  the federal Water  Pollution Control                                                              
1:12:35 PM                                                                                                                    
MR.  WARD explained  that the  committee  is being  asked to  pass                                                              
HB 36  because until  2008,  the Environmental  Protection  Agency                                                              
(EPA)  held   primacy  and  was   the  enforcing   and  permitting                                                              
authority in Alaska  for the Clean Water Act.   When Alaska sought                                                              
that  primacy,  the  EPA  told  DEC  it  must  amend  an  existing                                                              
exception  for  military ranges,  which  was  changed  in 2008  to                                                              
read:  "there would  be exception unless there was  a discharge to                                                              
waters of  the United  States".   The aforementioned language  has                                                              
been  the subject  of much  litigation, including  at least  three                                                              
U.S. Supreme Court  decisions over the last several  years and EPA                                                              
and  U.S.  Army  Corps  of  Engineers  regulations  and  guidance.                                                              
Furthermore, the  definition of "waters  of the United  States" is                                                              
some  30 lines  long.    Despite  the aforementioned,  it  remains                                                              
unclear  as to  what  that  term means  and  there  appears to  be                                                              
another case  that may go  before the U.S.  Supreme Court  and the                                                              
EPA  and U.S.  Army Corps  of Engineers  are  working on  guidance                                                              
with  regard to  the  earlier mentioned  phrase.   Therefore,  Mr.                                                              
Ward supports  passage  of HB 36  that replaces  the language  "it                                                              
results in  a discharge  into waters of  the United  States." with                                                              
"otherwise  regulated under  33  U.S.C. 1251-1376  (Federal  Water                                                              
Pollution  Control  Act)"  so that  there  is  a  body of  law  to                                                              
utilize  when determinations  are necessary.   He  noted that  DEC                                                              
remains in the decision-making process.                                                                                         
1:14:26 PM                                                                                                                    
REPRESENTATIVE SEATON  related his understanding that  under HB 36                                                              
the Kachemak  Bay gun club, an active  range, from which  a lot of                                                              
lead ends  up in a  wetlands area would  be exempt even  though it                                                              
is not an active military range.                                                                                                
MR.  WARD  understood   the  basis  for   Representative  Seaton's                                                              
reading of  the language,  but pointed out  that the  language was                                                              
in the existing  statute prior to 2008.   He said he  did not know                                                              
if that  is how DEC  applied the language  until 2008 nor  how DEC                                                              
would read the language.                                                                                                        
REPRESENTATIVE  SEATON clarified  that he does  not object  to the                                                              
legislation, but  rather to an unintended consequence  of allowing                                                              
the potential for  contaminants to enter water for  which there is                                                              
no intention to have this military exemption.                                                                                   
1:17:17 PM                                                                                                                    
SETH   BEAUSANG,   Assistant   Attorney   General,   Environmental                                                              
Section,  Civil Division  (Anchorage),  Department  of Law  (DOL),                                                              
pointed  out that  the  terms  "training activities"  and  "active                                                              
ranges"  are not  defined in  statute, and  thus he  was not  sure                                                              
there  is  a  clear  answer.     However,  in  the  past  DEC  has                                                              
interpreted  the  language  broadly  so  that  AS  46.03.100(e)(7)                                                              
applies to both military and non-military ranges.                                                                               
REPRESENTATIVE SEATON  opined that it  is not the intent  to allow                                                              
the  discharge  in  the  waters  of the  United  States  for  non-                                                              
military  ranges.   Therefore,  he expressed  the  need to  review                                                              
1:18:40 PM                                                                                                                    
CO-CHAIR FEIGE  asked whether  ranges that  [do not have  military                                                              
activities] would be regulated under the EPA regulations.                                                                       
REPRESENTATIVE T. WILSON  clarified that any range that  has to be                                                              
permitted  will  still have  to  be  permitted because  the  Clean                                                              
Water Act must be  followed.  The change proposed  in HB 36 speaks                                                              
only  to military  ranges, the  language  to which  Representative                                                              
Seaton is  referring was already in  statute and [HB 36]  will not                                                              
change  anything DEC  was doing  prior to this  legislation.   The                                                              
change  proposed in  HB 36 merely  clarifies  one sentence  as all                                                              
the other language is already in place.                                                                                         
1:20:27 PM                                                                                                                    
REPRESENTATIVE  TARR recalled  that  Mr. Ward  testified that  the                                                              
language  is being  interpreted as  more inclusive.   By  removing                                                              
the language  ", including active  ranges" would be  definitive in                                                              
terms of what ranges are being addressed.                                                                                       
REPRESENTATIVE  T. WILSON  offered  to ask  that,  but noted  that                                                              
[HB 36] was  vetted through  four agencies  and word-smithed  such                                                              
that there  would not  be any  consequences.   She suggested  that                                                              
deleting  the  language  suggested by  Representative  Tarr  would                                                              
likely impact  other ranges.  She  opined that DEC will  take care                                                              
of the permitting  and the bill as written is  what the department                                                              
needs in its toolbox.                                                                                                           
1:22:30 PM                                                                                                                    
REPRESENTATIVE  SEATON,  referring  to  the language  on  page  2,                                                              
lines  17-18, asked  whether this  language  would include  ranges                                                              
used  for  civilian  training  or  other  local  activities.    He                                                              
further  asked  whether  the language  covers  ranges  other  than                                                              
military ranges.                                                                                                                
EMILY  NAUMAN,  Attorney,  Legislative  Legal  Services  Division,                                                              
Legislative  Affairs Agency, said  she did  not know,  but offered                                                              
to research the matter and provide the committee with an answer.                                                                
1:23:30 PM                                                                                                                    
CO-CHAIR  SADDLER  asked whether  there  are permitted  ranges  in                                                              
Alaska that do discharge in the water.                                                                                          
MR. BEAUSANG  related his understanding  that in the past  DEC has                                                              
not issued permits for munitions ranges.                                                                                        
REPRESENTATIVE   SEATON  informed  the   committee  that   he  was                                                              
involved  with  the  Kachemak  Bay   gun  range,  and  there  were                                                              
considerations,  permits  required, and  restrictions  on an  area                                                              
because it would  have put lead shot into water  discharges, which                                                              
is waters  of the U.S.  or the state.   He reiterated the  need to                                                              
avoid  any unintended  consequences, especially  since there  have                                                              
been  expensive mitigation  efforts  to clean  up  lead shot  that                                                              
went into wetlands.                                                                                                             
REPRESENTATIVE  P. WILSON related  that this  same thing  has come                                                              
up in Sitka.                                                                                                                    
MICHELLE BONNET  HALE, Director, Division of Water,  Department of                                                              
Environmental   Conservation,  understood   the  question   to  be                                                              
whether  there  are  any  ranges  that are  permitted  now.    She                                                              
clarified  that  the  permit  being   discussed  is  considered  a                                                              
wastewater discharge  permit and would be issued  under the Alaska                                                              
Pollutant  Discharge Elimination  System program.   She said  that                                                              
as far  as she  knows there  are no [ranges  that are  permitted].                                                              
Prior  to  October  2012  the  EPA  retained  authority  for  that                                                              
discharge, which  was one of  the final phases.   The DEC  has not                                                              
issued  any permits  in  that interim  time  and  she related  her                                                              
understanding that  none were in place when the  EPA had authority                                                              
for  the  program.    She  said   that  to  consider  munitions  a                                                              
wastewater discharge is an odd category.                                                                                        
1:26:36 PM                                                                                                                    
CO-CHAIR SADDLER inquired  as to the risks to the  state should HB
36 pass as written.                                                                                                             
MS. BONNET  HALE responded that  DEC has reviewed  the legislation                                                              
and there  is no  risk to primacy,  and it  has been cleared  with                                                              
the EPA.   The legislation returns  [the statute] to  the original                                                              
intent,  such that  if  the Clean  Water Act  is  changed so  that                                                              
permits  are  not  required  for munitions,  the  state  would  be                                                              
consistent  with the  Clean Water  Act.   Therefore,  there is  no                                                              
risk to the program.                                                                                                            
1:27:12 PM                                                                                                                    
REPRESENTATIVE TARR  surmised then that  because there has  been a                                                              
limited time  since the state took  over and completed  the fourth                                                              
phase  of primacy  from the  federal government,  there would  not                                                              
have been an opportunity  for DEC to have issued  any permits, and                                                              
thus [ranges]  would have  been operating  under any existing  EPA                                                              
permits,  were  there any.    She  requested verification  of  the                                                              
MS.  BONNET  HALE  agreed  to  verify  that,  but  reiterated  her                                                              
understanding  that  the  EPA  did  not issue  any  permits.    In                                                              
further  response to  Representative  Tarr, Ms.  Bonnet Hale  said                                                              
she would specifically review the Rabbit Creek [range].                                                                         
1:28:02 PM                                                                                                                    
REPRESENTATIVE  JOHNSON pointed  out  that the  statute refers  to                                                              
ranges  operated  by the  DoD  or a  U.S.  military  agency.   The                                                              
Rabbit Creek  range is operated  by the Alaska Department  of Fish                                                              
& Game  (ADF&G) and the military  does not operate  private ranges                                                              
such as  the one  in Homer.   He requested  confirmation  that the                                                              
military does not manage [non-military] ranges.                                                                                 
MAJOR GENERAL KATKUS shook his head no.                                                                                         
1:28:51 PM                                                                                                                    
CO-CHAIR   SADDLER   highlighted  that   the   title   of  HB   36                                                              
specifically   refers  to  "An   Act  exempting  certain   federal                                                              
agencies or  military services  ...."  He  then asked  whether the                                                              
title  provides  any comfort  that  HB 36  specifically  addresses                                                              
military ranges and not other private ranges.                                                                                   
MS. NAUMAN  directed attention  to the language  on page  2, lines                                                              
17-18,  and stated  that  the  language "including  active  ranges                                                              
operated  by the  United States  Department of  Defense ..."  does                                                              
not foreclose other  types of active ranges.   The language merely                                                              
provides examples of  some of the ranges that would  apply to this                                                              
proposed law.                                                                                                                   
CO-CHAIR   SADDLER  remarked   then  that   the  title  does   not                                                              
specifically limit the legislation to [military ranges].                                                                        
1:29:57 PM                                                                                                                    
REPRESENTATIVE SEATON  surmised then that the  language "including                                                              
active ranges  operated by"  actually means  that the  legislation                                                              
applies  to both  those  operated by  DOD  as well  as others  not                                                              
operated by  DoD.   He related his  understanding that  the intent                                                              
of the  legislation is  to address active  ranges operated  by DoD                                                              
and  he has  no  opposition to  that,  but the  existing  language                                                              
creates unintended consequences.                                                                                                
1:31:07 PM                                                                                                                    
LIEUTENANT  COLONEL  JUSTIN  TRUMBO,  Regional  Counsel,  Regional                                                              
Environmental  Coordinator,   Western  Region,  U.S.   Air  Force,                                                              
Department  of  Defense  (DoD),  began by  relating  DoD's  strong                                                              
support for HB  36.  Regarding the application  to private ranges,                                                              
he clarified  that HB 36 does not  create any new exemptions.   He                                                              
then  directed attention  to page  2, lines  19-20, of  HB 36  and                                                              
stated  that   the  language   "unless  otherwise  regulated"   is                                                          
important.    The legislation, he specified, does  not do anything                                                              
that federal  law does not  do.  The  language does not  create an                                                              
exemption per  se, rather it would  conform Alaska law  to federal                                                              
law.   Therefore,  he did  not believe  changing  the language  at                                                              
this  point  would  be  advisable.   With  regard  to  the  impact                                                              
military ranges have  on the state's economy, he  highlighted that                                                              
the  military  is Alaska's  largest  employer  and has  an  annual                                                              
impact of nearly  $5 billion a year.   Therefore, HB 36  will help                                                              
provide  consistency and  predictability with  Alaska's water  law                                                              
and will provide  protection to Alaska in accordance  with federal                                                              
law.   The aforementioned is  why he urges  the committee  to move                                                              
forward  with  HB  36.   In  closing,  he  thanked  prime  sponsor                                                              
Representative  T. Wilson  and co-sponsor  Representative  Johnson                                                              
for their work.                                                                                                                 
The committee took an at-ease from 1:33 p.m. to 1:37 p.m.                                                                       
1:37:37 PM                                                                                                                    
REPRESENTATIVE  HAWKER reviewed  AS  46.03.100(a)-(e) and  related                                                              
that subsection  (a) specifies there  must be prior  authorization                                                              
of the department  for waste management, disposal,  and discharge.                                                              
Subsections   (b)-(d)   address   how   to   obtain   that   prior                                                              
authorization.    Subsection  (e)  is  a  specific  carve-out  for                                                              
certain activities.   He said he didn't see anything  that changes                                                              
the  regulatory  authority  the  state has  vested  over  shooting                                                              
ranges  that  exist  for recreational  purposes,  which  were  the                                                              
types  of  ranges  cited  before  the  committee.    He  requested                                                              
confirmation that  HB 36 has no effect, increasing  or decreasing,                                                              
Alaska's  regulatory  structure  or intent  to  regulate  shooting                                                              
facilities maintained for the recreational use of the public.                                                                   
MR. BEAUSANG  concurred with  Representative Hawker  and confirmed                                                              
that HB 36 would  not change any of the existing  state permitting                                                              
requirements  as it  applies to  munitions.   The  only change  is                                                              
that in the  future any federal  law changes with respect  to what                                                              
permits,  HB  36   would  ensure  that  both  federal   and  state                                                              
permitting requirements are the same.                                                                                           
REPRESENTATIVE HAWKER  remarked that  he is very  comfortable with                                                              
HB 36 as it is currently written.                                                                                               
1:40:46 PM                                                                                                                    
REPRESENTATIVE   SEATON  then  withdrew   his  objection   to  the                                                              
1:41:39 PM                                                                                                                    
REPRESENTATIVE TUCK  asked whether the drafter concurred  with Mr.                                                              
Beausang's interpretation.                                                                                                      
MS. NAUMAN  stated her  agreement with  the previous speaker  that                                                              
HB  36 makes  no  change to  what  the state  will  be allowed  to                                                              
1:42:23 PM                                                                                                                    
CO-CHAIR SADDLER opened public testimony.                                                                                       
KARLA  HART,   Lobbyist,  Alaska   Community  Action   on  Toxics,                                                              
expressed concern  that HB 36 would  take away the  public's right                                                              
to know about  what is dispersed  into waters.  As  was mentioned,                                                              
Alaska is  strategically located in  terms of exercises  and those                                                              
exercises are at  a greater scope, scale, and  volume which create                                                              
the potential of  placing more hazards into the  environment.  She                                                              
then informed  the  committee that  DoD has an  initiative  to get                                                              
its   activities   exempted   from   the   federal   environmental                                                              
protection laws,  including the Marine Mammal Protection  Act, the                                                              
Endangered Species  Act, and elements  of the Clean Water  Act. If                                                              
DoD is  successful in exempting  themselves from the  federal law,                                                              
then DoD  will be in compliance  with the federal law  when exempt                                                              
from it.   Therefore,  Alaska is  giving up  its right  to protect                                                              
its waters  and to understand what  is being placed in  the waters                                                              
of  the state.    Given what  can  be found  in  munitions, it  is                                                              
worthwhile for Alaska to have knowledge of it.                                                                                  
1:44:40 PM                                                                                                                    
JIM POWELL  began by informing the  committee that he is  a former                                                              
25-year employee  of DEC during  which he performed  water quality                                                              
standards.    With  regard  to an  earlier  question  about  state                                                              
permitting  on  rifle  ranges,  Mr. Powell  said  that  there  was                                                              
permitting  through a  401 certification,  which is  a dredge  and                                                              
fill permit,  under the Clean  Water Act.   Most of the  ranges in                                                              
the state  are located  on wetlands,  and thus  a wetlands  permit                                                              
would be  necessary.   In fact,  [DEC] did a  permit for  the Hank                                                              
Harmon Range,  which provided  a reasonable  assurance that  state                                                              
and  federal water  standards were  met  through the  permit.   In                                                              
conclusion, Mr. Powell stated that he has no position on HB 36.                                                                 
1:46:00 PM                                                                                                                    
REPRESENTATIVE TUCK  inquired as to the size of  the largest range                                                              
in the state.                                                                                                                   
MAJOR  GENERAL KATKUS  responded  he did  not know  the number  of                                                              
acres, but the JPARC  is a significant sized range  that is larger                                                              
than  the state  of  Massachusetts.   However,  he clarified  that                                                              
that does  not mean  every square inch  is impacted  by ordinates.                                                              
Although the  ranges are  very large  in Alaska, this  legislation                                                              
changes  nothing   in  how   those  ranges   are  managed.     The                                                              
legislation provides  a clarification that allows Alaska  to be on                                                              
a level playing field with every other state.                                                                                   
1:47:26 PM                                                                                                                    
CO-CHAIR  SADDLER,   upon  determining  no  one   else  wished  to                                                              
testify, closed public testimony.                                                                                               
REPRESENTATIVE  HAWKER  observed   that  a  zero  fiscal  note  is                                                              
associated with HB 36.                                                                                                          
REPRESENTATIVE JOHNSON  related that  during his meeting  with the                                                              
minister  of Alberta  he  learned that  Alberta  has an  agreement                                                              
with the  University of Nevada  to provide [unmanned  air vehicle]                                                              
(UAV)  ranges.    Although  that  opportunity  is  no  longer,  he                                                              
expressed  the  need  to  ensure  Alaska  does  not  miss  further                                                              
opportunities.  To that end, he stated his support of HB 36.                                                                    
1:48:43 PM                                                                                                                    
CO-CHAIR  FEIGE  moved to  report  HB  36  out of  committee  with                                                              
individual  recommendations  and   the  accompanying  zero  fiscal                                                              
note.   There  being no  objection, HB  36 was  reported from  the                                                              
House Resources Standing Committee.                                                                                             

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