Legislature(2001 - 2002)
05/03/2002 03:40 PM Senate RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 371-WASTE PERMIT & COASTAL ZONE EXEMPTIONS
CHAIRMAN TORGERSON announced SB 371 to be up for consideration.
MR. JOE BALASH, staff to Senator Therriault, said SB 371 came
about after the U.S. Army contacted Senator Therriault in
relation to the passage of SB 356. On April 12, 2002, a group of
people sued the U.S. Army for allegedly operating an artillery
range without obtaining a waste disposal permit. In discussing
the matter with the Department of Environmental Conservation
(DEC), department staff said they never interpreted the statutes
to require a waste disposal permit for operating an artillery
range. Rather than chance having a federal judge interpret a
state law in a particular way, the Army requested that the
legislature make it clear in statute that a waste disposal permit
is not required on an active range. He said the House adopted a
committee substitute (CS) in a companion bill that clarifies that
this language would cover state and private ranges as well.
SENATOR LINCOLN said she has concerns because live ammunition
exists on some military ranges, therefore fires cannot be fought
on those ranges. She said she has heard repeated concerns in her
district that the military is not cleaning up its site. She
stated, "I am concerned that we are taking another check off of
having a waste disposal permit. I don't know what the problem is
with getting a permit for the military." She questioned whether
the process is time consuming and why this bill is before the
legislature.
MR. BALASH said that regarding the unexploded munitions
ordinance, DEC has testified that it fully intends to maintain
its ability to maintain oversight of it. In addition, this bill
will not restrict DEC's ability to continue to deal with
contaminated areas. He pointed out the lawsuit is asking the
judge to consider projectiles as waste. DEC's current definition
of solid waste doesn't apply to projectiles.
MS. PAM MILLER said she represented the plaintiffs. The major
points they are seeking in this litigation are to define what
portions of the Federal Clean Water Act and other federal laws
apply to this range and to cleanup the unexploded ordinance under
the Superfund law. Her group tried to settle this matter out of
court. They know the Army has more than 10,000 unexploded
munitions in and around the Eagle River flats and the toxicity of
those munitions poses a danger to wildlife and people in the
area. The exemption from existing state law is not necessary and
would undermine the state's authority to administer pollution
control laws and endanger state program certification. The
Department of Defense is also seeking exemptions under federal
law. She opposed passage of SB 371.
MR. STEVE CLEARY, Alaska Public Information Research Group
(AkPIRG), stated opposition to SB 371 and said:
No agency should be above the law, particularly one
responsible for six different [indisc.] sites in
Alaska, which the military is responsible for and
should be held accountable to. We hear our Governor
talk a lot about doing development right and I think we
need to apply that to the U.S. military as well,
particularly when they are creating public health and
safety hazards.
MR. CLEARY said he couldn't understand the purpose of this bill
other than to avoid responsibility for cleaning up Eagle River
flats and to avoid being held accountable in a court of law.
MS. NANCY HILLSTRAND opposed SB 371. She said it is a health and
safety issue and, as the other speakers have said, U.S. citizens
have the responsibility to keep everything clean and orderly and
the U.S. Government should be a shining example of how to do
business.
MR. TOM CHAPPLE, Director, Division of Air and Water Quality,
DEC, said the bill before them actually covers several functions
at DEC, both its Solid Waste Program, its Contaminated Sites
Program and wastewater permitting. He said he has three points to
make. First, the legislation makes changes to the permitting
authority for an activity that in their view does not need a
permit. DEC doesn't intend to require permits for the current
activities on an active military firing range or training range.
DEC's current reading of existing law is that current practices
do not constitute solid waste and do not require a permit.
However, once a site is closed, DEC may require a site closure
plan.
The second point is, that while no permit is required for this
activity, DEC has other responsibilities in primarily two areas.
First, if the range activity causes pollution, even if the site
is still active, DEC has an obligation to address that problem
with the Army. Furthermore, upon closure of the range, DEC will
ensure that the site poses no ongoing threat to the health or the
environment. It's clear that this legislation is not intended to
affect DEC's ability to deal with contamination at an active
firing range should contamination pose a risk. DEC has worked in
the past with the Army to determine that ingestion of white
phosphorus was killing waterfowl and as a result the Army has
quit using white phosphorous nationwide where it would impact
wetlands. In addition, on the Eagle River flats the problem
occurred only when the ground was frozen.
Due to historic hazardous substances releases, in 1994 Fort
Richardson was put on the Superfund list and the Army, the State,
and EPA eventually signed a three-way agreement that detailed how
the facility was going to be investigated and cleaned up.
His third point was that there is a significant national effort
under way right now by the Department of Defense to address what,
if any, changes to national and state environmental laws are
necessary for national security and combat readiness. The
Department of Defense addressed a meeting last week in Wisconsin
of all states' environmental staff. The Department of Defense
promised the states that the limitations it is seeking will be
surgical.
He added that SB 371 is not the result of any problem the Army
has had working with DEC. While he worked cooperatively with the
sponsor and the Army on this legislation to ensure that the
language does not jeopardize other important work that DEC is
doing, he is concerned that this change might lead to litigation.
He urged committee members to consider whether this would be more
appropriately done at a national level first.
CHAIRMAN TORGERSON announced an at-ease while teleconference
equipment was being fixed. He called the meeting back to order at
4:10 p.m.
MR. CHAPPLE asked the committee to consider that a significant
effort is underway at the national level to try to address what
exclusions to environmental laws are necessary for combat
readiness. He asked the committee to consider whether it is
appropriate to address this issue at the state level or to allow
the national level to take the lead.
CHAIRMAN TORGERSON asked if it is correct to say that Mr. Chapple
has no position on the bill because it doesn't really affect DEC
and that he does not intend to permit military ranges. If issues
with hazardous materials or air quality arise, he would respond
to that anyway.
MR. CHAPPLE said that is a very good summary of what he said.
SENATOR ELTON asked if DEC's definition of solid waste is in
statute or regulation.
MR. CHAPPLE replied that the definition is in AS 46.03.900 and is
definition 25.
SENATOR ELTON asked Mr. Chapple how DEC deals with the Department
of Transportation and Public Facilities (DOTPF) when it does
avalanche work.
MR. CHAPPLE said DEC does not require any permits for avalanche
control. He explained that the definition of solid waste hinges
upon whether the waste material is being disposed of or
abandoned. Until a military site is closed, the waste material is
not being disposed of or abandoned.
SENATOR ELTON clarified that his question surrounds the fact that
avalanche control work is accomplished by firing explosives into
cornices.
MR. CHAPPLE said DEC has never required a permit for a discharge
out of an artillery weapon.
SENATOR STEVENS proposed a conceptual amendment (number 1) to:
Insert "conventional military" on line 6, after "of" and to
delete "active" and insert "designated lived fire ranges". The
reworded sentence would read:
This section does not apply to discharges resulting
from the firing or other use of conventional military
munitions in training activities conducted on
designated live fire ranges operated by the United
States Department of Defense or a United States
military agency.
SENATOR LINCOLN asked how that would improve the bill.
SENATOR STEVENS responded that he talked to senior military
officials when they were here for the Joint Armed Services
Committee. In the Lauterbach legal opinion, there was some
concern about the definition of a live fire range and the
definitions of what munitions would be exempt under this proposed
legislation. He explained:
This essentially confines it to conventional military
munitions and leaves it at active designated live fire
ranges. Therefore, it doesn't bring up any indication
or allow anything to be considered in terms of remedial
of sites that have occurred in the past. It only occurs
to live sites and conventional military munitions.
SENATOR LINCOLN asked if the word "active" will be deleted.
SENATOR STEVENS said that is correct and that it will be changed
to designated.
SENATOR LINCOLN asked if that means that a designated live fire
range has to be an active designated live fire range.
SENATOR STEVENS replied that the explanation he heard is that a
range is either a designated range or it's not. If it's not
designated, it goes into a remedial work status.
SENATOR THERRIAULT said the bill is worded to also cover
municipal rifle ranges. His concern is if it's limited to apply
only to military ranges that, by omission, might mean that a
solid waste permit is now going to be required on municipal rifle
ranges or at areas where hunters traditionally site their rifles,
for example at abandoned DOTPF gravel pits. He said that might
create a problem for DEC at areas where it does not require solid
waste permits.
CHAIRMAN TORGERSON responded, "Didn't you have that problem
before?"
SENATOR THERRIAULT replied that he thought the wording was broad
enough.
CHAIRMAN TORGERSON noted the amendment says firing ranges
operated by the Department of Defense. He said the House
Resources Committee added the word "including" before "active" so
that it reads, "including active ranges operated by the United
States..."
MR. BALASH explained that the House Resources language states,
"This section does not apply to the firing or other use of
munitions in training activities conducted on active ranges,".
MR. BALASH said they could accommodate Senator Stevens' language
following the comma so that it is clear it applies to
conventional military ordinance being used on a designated range.
SENATOR ELTON said the problem seems to be the language on line
7, which limits activity.
CHAIRMAN TORGERSON asked Mr. Balash and Mr. Chapple to work on
that language while the committee took up the confirmation
hearings.
SB 371-WASTE PERMIT & COASTAL ZONE EXEMPTIONS
CHAIRMAN TORGERSON announced SB 371 to be up again for
consideration.
SENATOR STEVENS moved to withdraw Amendment 1. There were no
objections and it was so ordered.
CHAIRMAN TORGERSON noted that the language they were considering
was House language that was adopted earlier in the meeting.
SENATOR TAYLOR moved to adopt Amendment 2.
SENATOR LINCOLN objected and explained that Amendment 2 is so
broad that it doesn't apply to firing or other use of munitions
in training activities conducted on active ranges including those
by the military. The sponsor stated it wasn't the intent to have
municipalities involved in the exemption for firing ranges.
The motion to adopt Amendment 2 carried with SENATORS WILKEN,
TAYLOR, STEVENS and CHAIRMAN TORGERSON voting in favor, and
SENATORS ELTON and LINCOLN opposed.
SENATOR TAYLOR moved to pass CSSB 371(RES) from committee with
individual recommendations.
SENATOR ELTON objected, saying that the committee had taken a
bill that addressed a very discrete problem and dramatically
increased its scope without taking any testimony at all on the
impacts. He said that he couldn't recall any problems Juneau had
in establishing a safe and active firing rang. He added:
The most compelling testimony was that we may be in a
position of making a change to state law, but will
maybe need to return following the national initiative
that is going to try to standardize the rules under
which the military operates. I think we've broadened it
to a great extent and we may be getting ahead of a
process that will hopefully provide a standardized
method for the military to operate when dealing with
these issues.
SENATOR TAYLOR said he made the motion to move the bill for a
specific purpose:
My son-in-law serves today as a captain in Special
Forces in the United States Army. He's based at Fort
Cole where he's doing reviews of special forces unit
teams that come through and go through various
difficult training exercises and he must review them.
Those same young men end up in places like Afghanistan
and other places in the world today. Before shipping
them into harms way, I want them to have every single
opportunity available, the finest training we can
provide. Alaska retains its military bases in light of
the [indisc.] base closures primarily because we do
have the free fire training ranges that we have
available for that personnel in this state. If
political correctness is going to get in the way of
defending this nation, then I want to be standing right
out in front and say I'm not going to be politically
correct on this one and I'm very proud of it…
SENATOR WILKEN said he wanted to associate himself with those
remarks. His son-in-law is Major Cameron Curry, an A-10 pilot
stationed at Eielson Air Force Base. He stated, "In no way, shape
or form would I sit at this table while I do anything to diminish
his training capabilities unless there is a clear and present
danger to the people of Alaska…"
SENATOR ELTON said he didn't know how to begin to respond. He
agreed with the comments from the previous speakers. He
personally trained on live fire ranges and that training was very
beneficial to him when he was in a live fire zone in Vietnam. He
would hate to leave the impression that his vote on this bill has
anything to do with political correctness or with wanting to
interfere with the training mission of the U.S. military. He
said:
We have not heard testimony that would even suggest
that. So I want to make it very clear to the members of
this committee that my negative vote has absolutely
nothing to do with the comments that were made
previously…We have not heard testimony that that would
happen. I, too, believe as they do that we ought to do
nothing that would minimize the kind of training our
men in uniform have.
SENATOR LINCOLN said she was offended that members suggested that
voting against moving this bill from committee means that she's
not patriotic or supportive of the military. She added:
To the contrary, I support the military 100% and have
done so my 12 years here. My problem with this is that
we're exempting a permit requirement and I didn't hear
from Tom that that stopped in any way the process from
going on, in that if we need to expedite a permit,
that's one thing, but just to eliminate a permit
requirement is of concern to me, regardless who it is.
SENATOR THERRIAULT responded that he wanted to make it clear to
the committee that passage of the CS does nothing more than
enshrine a current administrative interpretation of the statutes.
It doesn't remove a current permit regulation. It does mean that
a federal court is not going to broaden or change our
administrative interpretation of our own statutes against our
will.
CHAIRMAN TORGERSON asked for a roll call vote on the motion to
move the bill out of committee.
The motion carried with SENATORS LINCOLN and ELTON opposed and
SENATORS TAYLOR, WILKEN, STEVENS and TORGERSON in favor.
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