Legislature(2007 - 2008)BELTZ 211
01/25/2008 01:30 PM Senate JUDICIARY
Audio | Topic |
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Start | |
HB151 | |
HB7 | |
HB149 | |
Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
+ | TELECONFERENCED | ||
+= | HB 149 | TELECONFERENCED | |
+= | HB 7 | TELECONFERENCED | |
= | HB 151 | ||
CSHB 149(RES)-POLLUTANT DISCHARGE PERMITS CHAIR FRENCH announced the consideration of HB 149. [Before the committee was CSHB 149(RES).] 2:18:31 PM LARRY HARTIG, Commissioner, Alaska Department of Environmental Conservation (DEC), described HB 149 as a clean-up bill. Several years ago the legislature passed a bill directing DEC to apply to EPA (Environmental Protection Agency) to transfer primacy, which is the authority to issue National Pollutant Discharge Elimination System (NPDES) permits in Alaska. He explained that the federal Clean Water Act (CWA) requires that certain dischargers are required to have an NPDES permit and then they must comply with the terms of the permit. COMMISSIONER HARTIG explained that EPA has identified several areas where state statutes must be changed in order for the state to get primacy The concern is that Alaska law must be at least as rigorous as the federal law. The Palin Administration recognizes the importance of having local decisions made with local input and oversight and is strongly supporting HB 149. 2:23:17 PM COMMISSIONER HARTIG explained that primacy does not change the standard for making decisions about permits. In fact, the permits that EPA currently issues are based on state approved water quality standards and DEC certifies that those permits comply with state law. When DEC assumes primacy it will base permit decision on those same water quality standards. Also, EPA will continue to provide oversight once DEC begins to administer the program. COMMISSIONER HARTIG stated that DEC's objective is to have an exemplary program that's based on the best science, the best public process, and founded on good public policy. 2:24:55 PM CAMERON LEONARD, Assistant Attorney General, Civil Division, Environmental Section, Department of Law (DOL), Fairbanks, drew attention to several documents in the packet that might be helpful: "NPDES Program Approval Criteria" and "Sectional Analysis of CSHB 149(RES). He explained that the statutory changes will make the state program at least as stringent and comprehensive as the federal law, which is necessary to receive EPA sanction. 2:26:58 PM MR. LEONARD said he will give a sectional analysis. Sections 1 and 5 address the kinds of monitoring, sampling, and reporting requirements that can be placed within or outside a discharge permit. Section 1 gives DEC authority to require monitoring, sampling, and reporting outside the permit that is equivalent to Section 308 of the federal Clean Water Act (CWA). Section 5 deals with monitoring, sampling, and reporting within a permit. The state law will be equivalent to the federal law with regard to what can be put in a permit. MR. LEONARD said Section 2 addresses differences in terminology. The CWA uses the term "discharges" and Alaska Statute uses a different term, which caused EPA concern about equivalent authority. To address the concern, the phrase "or discharge" is added to Alaska Statute to ensure that the scope of DEC's permitting authority is as broad as the federal law. Also, the last sentence in this section is deleted because it is redundant and inconsistent. Discharges into publicly owned treatment works is addressed in Section 4. Section 3 simply clarifies that DEC makes the decision about which form of authorization to use for any given discharge or activity. 2:31:02 PM MR. LEONARD pointed out that Section 4 changes three current exemptions in AS 46.03.100(e). EPA was concerned that the federal exemptions were not as broad so the state exemptions were tightened. The first change in .100(e)(1) deletes reference to "sewerage system" and inserts "publicly owned treatment works" to match the federal exemption. CHAIR FRENCH clarified that neither EPA nor DEC would require a permit for discharge into a publicly owned treatment plant. MR. LEONARD agreed. CHAIR FRENCH asked if there's really a difference or if it's a matter of semantics. MR. LEONARD explained that under state law the term "sewerage system" is defined more broadly than "publicly owned treatment works." That could be interpreted to include a pipe running from your house to the river so it was probably too broad. CHAIR FRENCH asked if he would say that this is more restrictive than under current state law. MR. LEONARD said there's no question about that. 2:33:23 PM MR. LEONARD said the second change occurs in .100(e)(4) and relates to incidental discharges such as water from trenching, drilling, or ditching. It's referred to as the incidental discharge exception, but basically there was only an exemption if the activity did not result in a discharge into surface waters. Current state law uses the term "surface water of the state" and federal law uses "waters of the United States." The phrases are similar but not identical, so this ensures that the state exemption isn't any broader than what is allowed under federal law. The third change occurs in .100(e)(7) and relates to discharge of munitions. Generally, the discharge of munitions is exempted from the requirement of getting state authorization unless it results in a discharge into water. To match federal law the phrase "unless it results in a discharge into waters of the United States" is added. CHAIR FRENCH asked if this will impact the enormous amount of military training exercises that occur around Anchorage and the Interior. MR. LEONARD replied it's really just a change in the permitting agency. Applications will go to the state instead of EPA. 2:35:28 PM MR. LEONARD reminded members that Section 5 is linked to Section 1. It expands DEC's authority to include monitoring and reporting requirements in permits to be equivalent to EPA authority under the CWA. He explained that Sections 6 and 7 clarify that the state's use of the term "waste material" includes "pollutants" as defined in the CWA. MR. LEONARD said Section 8 adds a new subsection (i) to AS 46.03.790. Current state law bases its criminal program for environmental issues on criminal negligence, which is higher state of mind as defined in the statute. EPA didn't agree with that because the state is requiring a higher level of culpability to do criminal prosecutions than is required under the CWA. For purposes of the APDES program only, criminal enforcement is based on ordinary negligence. MR. LEONARD said Section 9 provides an immediate effective date. 2:38:05 PM CHAIR FRENCH asked where lawsuits would take place if a citizen is unhappy about a decision DEC made about issuing a permit. MR. LEONARD explained that an appeal of a permitting decision has two stages. Appeals of DEC permits are referred to the Office of Administrative Hearings (OAH). Following the hearing, AOH typically makes a recommendation to the commissioner of DEC who then makes a final decision on the permit. If the citizen is still unhappy, he or she could appeal to the state superior court and ultimately to the state supreme court. The other kind of litigation in this program is called a citizen suit. That's when a citizen sues for violation of an existing permit. Those cases would continue to go to federal district court and those decisions are appealed to the Ninth Circuit. CHAIR FRENCH asked why a citizen would be forced to go to federal court when a state agency issued the permit and is overseeing the program. 2:40:13 PM MR. LEONARD replied those are the provisions of a citizen suit under the CWA. He further explained that a suit can't be brought if the agency that issued the permit is already enforcing it. So if EPA attorneys bring enforcement action on a federally issued permit a citizen suit is precluded. It will work the same with the state. If DEC is already enforcing the terms of a permit that it issued, the suit will be in state court and that precludes a citizen suit in federal court. He added that EPA attorneys have said that most citizen suits are for minor violations and EPA usually isn't a participant. SENATOR WIELECHOWSKI asked how many cases have been brought under the first scenario that in the future will be under OAH. MR. LEONARD said according to a Region 10 attorney, there are very few permit appeals that go to the federal environmental appeals board (EAB) and fewer yet to the Ninth Circuit. There's not a high volume of appeals on the state side either, he added. SENATOR WIELECHOWSKI highlighted the zero fiscal note from the Department of Law and asked if this wouldn't have fiscal ramification. MR. LEONARD replied this bill doesn't affect the resources that DOL will have to invest in the program. SENATOR WIELECHOWSKI asked if the DEC and EPA fine structures are comparable. MR. LEONARD explained that the difference is that EPA has the authority to assess a penalty administratively and DEC has to go to court. However, that's not an obstacle to program approval because the amount of damages DEC can recover satisfies EPA requirements. He agreed to provide the numbers. SENATOR WIELECHOWSKI again highlighted the fiscal notes and said he hopes they adequately reflect the additional legal work. Referring to testimony in the other body, he asked if DEC intends to list the same requirements within the permit that EPA lists or if some of those requirements would be listed outside the permit. MR. LEONARD referred to his discussion about the monitoring and reporting requirements and said that's the only area that the state has said it may list outside the permits. The testimony in the other body reflected the belief that information that wasn't tied to compliance with effluent limits could inappropriately be subject to citizen suit enforcement if it was listed within the permit. 2:45:57 PM SENATOR WIELECHOWSKI summarized that when the state assumes primacy there will be less monitoring and reporting issues within the DEC permit. COMMISSIONER HARTIG stepped in to clarify that there will be no difference between an EPA and a DEC issued NPDES permit in terms of the requirements for meeting water quality standards. Likewise, there will be no difference in the monitoring and reporting requirements for compliance with those water quality standards. The difference is that DEC wants more flexibility to ask permit holders to provide additional data. Currently DEC and EPA can ask for more data, but EPA does it under the permit. He described a hypothetical situation of a discharger in a remote area in Alaska that is asked to collect additional information. The permit holder knows that the additional data doesn't relate to compliance with any law. Although they're willing to collect the data, agreeing to do so within the permit is worrisome because if they miss even one collection they could be subject to a citizen suit. Under the CWA there is strict liability so the fact that the weather was too bad to collect the data one day is not a defense. The permit holder could be exposed to a potentially severe penalty. COMMISSIONER HARTIG said the state wants the flexibility of putting the request in a separate agreement that's outside the permit. If anything it increases monitoring because the permit holder is more likely to agree to enhanced monitoring if they know it won't expose them to liability that they would not otherwise have. 2:49:15 PM CHAIR FRENCH said the obvious policy choice if whether the state wants control over its own permitting. The potential tradeoff is whether the entity that assumes control is as tough as the EPA. The next administration may view these matters differently. He asked if any state has returned primacy to the EPA. COMMISSIONER HARTIG said he knows that Alaska is one of five states that does not have primacy, but he doesn't know the answer to the specific question. MR. LEONARD said he isn't aware of any state that has given it back. 2:50:38 PM SENATOR THERRIAULT referred to work he did years ago to take over the 404 discharge permits. He said he doesn't recall any state that ever gave that authority back. He also worked on this legislation initially and in doing that research he doesn't recall any state that gave primacy back. SENATOR McGUIRE highlighted the document titled "NPDES Permits" and read the following: Under federal regulations, any state permit program must be as stringent as EPA's program in order for EPA to approve it. That means that the state must require permits for the same operations as does EPA. Stated another way, Alaska cannot exempt from permit coverage anyone who needs a federal permit. SENATOR McGUIRE said that although it appears that states have never given back control, any administration that wasn't doing a good job would attract the attention of lawmakers or the federal government. "I like the fact that the EPA has to continue to approve it," she added. 2:52:12 PM SENATOR WIELECHOWSKI asked if there are requirements for DEC to consult with other agencies such as U.S Fish and Wildlife or National Marine Fisheries over critical habitat issues or endangered species listings. MR. LEONARD explained that most of the federal consultation duties do not apply to a state permit decision. However, most major projects that require an NPDES permit also require some other federal permit so consultation will go on base on those permits. SENATOR WIELECHOWSKI asked if that won't result in more third- party lawsuits. MR. LEONARD explained that DEC is required by regulation to send copies of draft permits to all the relevant federal agencies. Only time will tell if more citizen suits will be brought. COMMISSIONER HARTIG added that the basic requirements of the Endangered Species Act still apply. Although the Section 7 requirement that one federal agency consult another federal agency doesn't apply, the taking prohibition under Section 9 is there. It would be a violation of the federal act if the permitted action resulted in the taking of an endangered species. DEC doesn't want to set anyone up to violate the Endangered Species Act. Currently the APDES workgroup is reviewing a guidance document that will be available to the public in several weeks. It discusses communication with federal agencies, local communities and individuals to assure everyone that nothing will be lost when the state gets primacy. Federal agencies, including the EPA, will review that document. He offered to share it with the committee. 2:55:39 PM COMMISSIONER HARTIG said his last point is that the EPA has oversight on each permit, not just the overall program. It has its own memorandum of agreement established with the federal agencies that DEC consults with under essential fish habitat or the Endangered Species Act. It establishes to how EPA will review the state's permits and consult with the agencies. It also sets out the procedure if it is disgruntled with a proposed permit action. SENATOR WIELECHOWSKI reiterated the importance for having guidelines in place to protect the state from lawsuits. Little or no consultation increases the likelihood of lawsuits, he said. SENATOR THERRIAULT asked if he is specifically referring to consultation with federal agencies. SENATOR WIELECHOWSKI said yes; the EPA is required to consult with those federal agencies, but DEC doesn't have that requirement. Commissioner HARTIG relayed that DEC provides draft copies of all its permits to the agencies directly. They can comment directly to DEC or they can work through EPA. He reiterated that EPA has the authority to veto DEC permits. 2:57:31 PM SENATOR HUGGINS asked if this impacts DEC's role at Pebble Mine. COMMISSIONER HARTIG said Pebble is on the radar, but it's a bit far off. The timeline is that the state will hopefully get primacy about a year from now. Then there will be a three-year phase-in during which time the state will address the less complicated permits first. Unless the Pebble application comes in 3-4 years from now, it's more than likely that the EPA will write that permit. 2:59:07 PM SENATOR HUGGINS asked if any individuals or organizations will have "their hair on fire" over DEC receiving this authority. COMMISSIONER HARTIG acknowledged that some people have expressed concerns and those are being addressed in various ways including the guidance document. For example, that document calls for consultation with tribes. Although some are concerned that the EPA is more rigorous than the state, he agrees with Senator McGuire. If people don't respect the job DEC is doing, he firmly believes that the legislature, the EPA, and the courts will do something about it. 3:00:58 PM CHAIR FRENCH commented that it says something that a long list of environmental groups has not signed up to testify today. He thanked Commissioner Hartig and announced that he would hold HB 149 in committee.
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