Legislature(2013 - 2014)BARNES 124
01/28/2013 01:00 PM RESOURCES
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* first hearing in first committee of referral
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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 community. REPRESENTATIVE P. WILSON surmised then that [the possible interpretation] has a large impact on the economy of Alaska as a whole. 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 Alaska. 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 Act. 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 that. 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 aforementioned. 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 language. 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 regulate. 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.