Legislature(2003 - 2004)
04/04/2003 03:36 PM Senate RES
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 116-EMISSION CONTROL PERMIT PROGRAM
CHAIR OGAN announced that a committee substitute was prepared
that incorporates the changes made to the House version of the
bill by the House Finance Committee.
SENATOR WAGONER moved to adopt the proposed committee substitute
to SB 116 (Version D) as the working document of the committee.
SENATOR LINCOLN objected for the purpose of an explanation of
the changes made in Version D.
MR. TOM CHAPPLE, Director of the Air and Water Quality Division,
Department of Environmental Conservation (DEC), affirmed that
Version H contains the same changes made in the House Finance
Committee to HB 160, the companion legislation. Those changes
are as follows:
· Page 5, Section 12 - on line 6, after the word "exempt" the
words "or defer" were inserted to take advantage of any
federal provisions to exempt or defer permitting of a
facility in Alaska.
· Page 5, Section 13, which pertains to who needs
construction permits - the changes reflect the federal
language by including the term "major stationary source"
and "major modification," terms of art in the federal law.
Subsection (3) adds the phrase, "a project subject to the
construction permitting requirements of 42 U.S.C. 7412(i)
Clean Air Act, sec. 112(i)." That refers to the section of
federal law that deals with hazardous air pollutants. The
purpose of Section 13 is to streamline the statutory
language to capture the terms of art in federal law and to
make sure that Alaska's law comports exactly with when
construction permits are required in federal law.
· Page 7, Section 15, line 21, paragraph (2) contains a new
insert. In this case, an operating permit pertains to
monitoring, record keeping, and reporting. This language
asserts that the State of Alaska permits will comply with
the requirements in the federal rules and provides
assurances those provisions will be used in Alaska. It also
provides the ability to modify those, taking into account
Alaska's unique conditions. The term "Alaska's unique
conditions" is one of the features of the work group's
report.
CHAIR OGAN asked if federal law provides the state with the
latitude to conform but takes into account its unique
conditions.
MR. CHAPPLE said DEC wants to be more site specific and
considerate of Alaska's business needs and its natural
environmental conditions when permitting. Sometimes the federal
law does not provide much latitude, but in the areas with room
to interpret and modify, SB 116 would allow DEC to do so.
SENATOR LINCOLN noted that a previous amendment contained the
term "major stationary source" yet Version D contains the term
"stationary source." She asked if the difference is significant.
MR. CHAPPLE said federal law contains a distinction. A
stationary source is any operation that has an air pollution
source. A major source is one that is big enough to require a
permit. Under federal law, "major source" is defined as 250 tons
per year of air pollution. This law also creates minor
permitting requirements that were previously called "major." It
separates the two permit programs.
MR. CHAPPLE told members the next change is in Section 25 on
page 12. Section 25 deals with general minor permits. This
change deletes a sentence at the end of this section that read,
"A general minor permit issued to a particular person takes
effect when the person's application is determined to be
complete unless the department notifies the applicant that the
general permit is not applicable to the person's stationary
source." He explained that was removed because a general permit
is developed and not issued to an individual applicant; the
permit is created and "put on the shelf" until someone applies
for it and the applicant is authorized to operate under that
general permit. That sentence was confusing and the parties that
opposed the amendment suggested it would be easier to deal with
those changes in regulations.
MR. CHAPPLE said one other change on page 12 in Section 26 deals
with temporary operations and changes 30 days to 10 days. When
this section of Alaska law was first created in 1993, the
federal law said temporary operations need to give notice before
they move but no calendar date is specified in federal law.
Since that time, the federal regulations used 10 days. This
change matches Alaska law to the federal regulations and
provides more flexibility for mobile operations.
SENATOR LINCOLN said that 10 days might be a very short period
for a business in a remote area and asked if notification could
entail a faxed notice.
MR. CHAPPLE said that written documentation, either faxed or
mailed, would be considered notification.
SENATOR LINCOLN asked if DEC feels 10 days is adequate.
MR. CHAPPLE said these operations are usually portable and are
originally permitted with the anticipation that they will move
around. The motivation is to ensure the operation would comply
with other environmental standards at numerous locations. The
notice would simply allow DEC to know the location and whether
an inspection would occur. Any considerations about unique site
conditions would be handled before the permit was issued.
MR. CHAPPLE continued with his explanation of the bill. The next
change is on page 23, in Section 54 of the bill. The definition
of "modification" was expanded to include "and 40 CFR § 60.14."
This change will incorporate the result of court cases at the
federal level where the definition was further resolved. It
creates some additional provisions of value in Alaska.
MR. CHAPPLE said the next change is in Section 59 on page 24,
where a definition of "major modification" was inserted. This is
linked to an earlier change, which determines who needs a
construction permit.
MR. CHAPPLE said the last change to the bill was made in Section
62, under the transition features. Beginning on line 29 the
first sentence is new. It addresses new federal regulations
adopted in December of 2002 to accomplish some streamlining for
construction permits. This language was inserted to assure that
DEC adopts these rules quickly. He summarized that the Alaska
Oil and Gas Association brought the changes in the committee
substitute to DEC. Most of the changes are for the purpose of
clarification. DEC supports these changes.
CHAIR OGAN asked Mr. Chapple to summarize any policy changes
that might result from the adoption of Version D.
MR. CHAPPLE said Version D clarifies that there are some
opportunities for exemptions in federal law that should be
applied in Alaska. It also speaks to the fact that during DEC's
workgroup process last fall, DEC said it wanted to adopt the new
federal rules. These changes commit DEC to moving forward
expeditiously with those changes. It also clarifies the language
about who needs a construction permit and makes it comport more
closely to federal law.
SENATOR ELTON asked if the members of the workgroup reviewed the
technical changes.
MR. CHAPPLE said he hasn't directly talked to all members of the
workgroup. He said Marilyn Crockett with AOGA has worked with
some of the other members and will be testifying today.
SENATOR LINCOLN removed her objection to the adoption of Version
D as the working draft before the committee, therefore the
motion carried.
CHAIR OGAN took public testimony.
MS. DANA OLSON gave the following testimony.
I've been very passionate about air quality issues for
many years. I believe there is a lot of hot air on
this bill. [Indisc.] some EPA determinations -
petitions that I have filed and got answers on and one
of them was a petition that I alleged that the
Southcentral Clean Air Authority was defunct and
provided no public participation. What I got from the
regional EPA administrator was a decision, which was
appealable, that said it was not defunct and that it
was a valid and legal authority in Alaska.
Now one of the problems I find is I sent you down an
[indisc.] - the first provision of the bill. I do not
have the committee substitute but I sent down a
question why is the implementation not under the
Southcentral Clean Air Authority. This is the public
process that was in desist of the 1972 standard that
was federally approved. When the ADEC decided to
appoint a committee of interested persons, they did
not allow the general public to apply. I did file and
raise objections.
First of all, if you're going to go in and narrow the
topic, then you have to allow the public a general
opportunity to apply at least. This was not done.
Furthermore, when I went to those meetings, the ones
that I did attend to and wasn't discouraged from, I
found that the people were not willing to represent
any of my issues. They would tell me about how to use
the computer or how to do this or that. They were not
willing to work with what I had and there is nothing
in state law, there is nothing in federal law that
says I must come to a group in order to participate.
Now one of the [indisc.], I find that I'd like to
address was [indisc.], when you go into Elmendorf Air
Force Base in Southcentral Alaska, outside of
Anchorage, you have to have an ion test certificate if
you intend to go on that base more than six times a
month. That's their policy. So, in other words, the
funds that are ion testing funds that are being used -
it doesn't matter where you live. If you come down
from Ft. Greeley and you go to Elmendorf Air Force
Base six times, you need an ion-testing certificate to
get on base. For you to go in and narrowly restrict
the funds that will be used, [indisc.] Elmendorf and
the federal government is recognizing that they are
using a statewide standard and not a restricted thing
is contrary to what is actually occurring here. That
seems to be one of your problems that needs resolving.
One of the things that I find that when you're in a
non-attainment area is that you have to have
conformity standards that are published in the federal
register. I'm hearing a lot of things that were done
to comply with federal law but the truth is they've
not been published in the federal register and for you
to go in and set up a provision of state law, to say
that based on a federal court case that you're going
to allow for characteristics of Alaska determined only
by this group for consideration of not complying with
standards is objected to on grounds that first of all
it's not a provision of federal law, it's an
interpretation and it may not be valid here. We have
no court case articulating that that is the premise of
which it can be relied on.
I wanted to also mention something about negotiated
rule making. Negotiated rule making has no
constitutional grounds for overriding copyrights, it
has no constitutional grounds for interfering with
public trust, and therefore when the legislature set
up negotiated rule making, it failed to show who was
the intended beneficiaries of this rule making would
be. Is it simply the permittees or was the public in
whole addressed? I have the advice of an attorney who
said that when there's not a remedy - in other words
when there's not a legal remedy - that one doesn't
have to comment. So, if this is a public process,
technically I don't have the process - I don't have to
participate because I don't have any remedy to enforce
one way or another your implementation.
One of the problems I found with this bill was a lot
of presumptions. One was that one could petition for
redress of a grievance. In the prior Administration, I
petitioned for air quality in the Chase area and my
petition was not even answered. I petitioned for an
administrative hearing many times on the Knik
incinerator. I've not even had an answer. AS 46.03.040
is the state's environmental plan and as I said down
here in my comments, if you find [indisc.], it doesn't
address - if you took out the statutes, you took out
the regulations and you said this is an environmental
plan.
CHAIR OGAN asked Ms. Olson to refine her testimony to the
statutory changes under consideration.
MS. OLSON said she meant to say if you call all of the
regulatory provisions a plan, it would be deficient because it
didn't address the public as a whole. She continued:
Now one of the things I found in your bill was that
you went in under statutory construction, you went in
and used proposed, futuristic law and made it a
[indisc.] existing law and implementation. This is
unconstitutional and it won't stand up.
So, in other words, I [indisc.] reading this bill -
remember I don't have your new committee substitute,
and it's not even in fact [indisc.]. The problem is
it's very confusing to be talking about something in
the future that hasn't occurred yet. It seems to me
that you're trying to rewrite a program and not simply
implement one. I would appreciate consideration of my
comments. I would like them on record. I have prior
given a 60-day notice to the state and to the federal
government alleging grievances under the Clean Air
Act. Thank you very much.
CHAIR OGAN thanked Ms. Olson and asked her if she is
representing herself.
MS. OLSON said she is representing the communities that she
lives in.
CHAIR OGAN continued to take public testimony.
MS. MARILYN CROCKETT, Deputy Director of the Alaska Oil and Gas
Association (AOGA), told members when SB 116 was first before
the Senate Resources Committee, she testified that the bill was
under review by AOGA and that she may come forward with
amendments. She said AOGA supports Version D. The amendments
reviewed by Mr. Chapple are intended to bring the bill directly
in line with the recommendations that the workgroup put together
by DEC last fall. The bill does two things:
· It revises the fee structure to give the department the
revenue it needs to run the program as required by the
Clean Air Act. It picks up the funding mechanism
unanimously adopted by the legislature three years ago. It
moves away from the hourly fee structure to a mix of flat
fees and negotiated fees.
· It provides statutory authority to DEC to revise its
permitting program so that they more closely mimic the
federal programs but retain DEC's ability to take into
account Alaska's unique conditions. This provides local
control on one hand while providing a more streamlined,
clear, and updated structure for DEC to work within.
MS. CROCKETT said AOGA believes the committee substitute
implements the recommendations of the workgroup and supports the
legislation.
SENATOR WAGONER said he checked with the industrial "folks" he
represents and they have no problem with the bill. He moved CSSB
116(RES) from committee with individual recommendations and its
zero fiscal note.
There being no objection, CHAIR OGAN announced the motion
carried. He adjourned the meeting at 4:08 p.m.
| Document Name | Date/Time | Subjects |
|---|