Legislature(1995 - 1996)

03/11/1996 03:37 PM RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
 Number 192                                                                    
          SJR 39 EPA'S NPDES PERMIT FOR PLACER MINING                         
 STEVE BORELL, Executive Director, Alaska Miners Association,                  
 supported SJR 39.  He suggested two potential changes.  He said the           
 resolution references dredge and recreational mining; however, the            
 issue goes far beyond just dredge and recreational mining and it              
 affects any commercial mining operation.  The resolution should               
 address how it affects commercial operators and should give full              
 due deference to the folks that have caused the problem by                    
 litigants being included in addition to their attorneys.                      
 SENATOR LEMAN noted that they had two proposed amendments from the            
 Alaska Miners and he thought they were friendly amendments and                
 would improve the resolution.                                                 
 SENATOR TAYLOR moved to adopt amendment number one.  There were no            
 objections and it was so ordered.                                             
 SENATOR TAYLOR moved to adopt amendment number two.  There were no            
 objections and it was so ordered.                                             
 Number 219                                                                    
 SENATOR TAYLOR moved to pass SJR 39 from committee as amended.                
 SENATOR LEMAN asked him to hold the motion as there were people who           
 wanted to testify.                                                            
 DAVID CHAMBERS, Mining Analyst, Sierra Club Legal Defense Fund,               
 said he is a geophysicist by training, not an attorney.  He was one           
 of the people involved in the settlement agreement that is at issue           
 with this resolution.  He wanted to clear up some of the misleading           
 statements in SJR 39.                                                         
 The first "Whereas" requires all dredges to have a NPDES permit               
 despite the fact that EPA does not have the personnel to process              
 all of the newly required permits.  While the settlement agreement            
 requires small suction dredgers to send their names and addresses             
 to EPA and in turn they receive a one page sheet listing specific             
 practices to follow.  He did not think that was an onerous                    
 The second concern was the arsenic level of .18 parts per billion.            
 While that is factually correct and is a requirement of state and             
 federal law, during the course of the year and a half of                      
 negotiations they never once discussed the arsenic level at its               
 numeric limits.  This is just a number EPA is putting in the                  
 permit; it's required to do so by law.  Should EPA change its                 
 standard as is referred to in the next line, to 50 parts per                  
 billion, he assumed that would become a part of this permit as it             
 would all other permits.  He said there were numerous compromises             
 in the agreement and at the end of the discussions, the miners were           
 invited to comment and they chose not to do so.                               
 MR. CHAMBERS said he thought EPA entered into this settlement                 
 agreement because its position under their legal challenge was                
 weak.  He said the settlement agreement was in the best interests             
 of the State.  If the terms of the settlement agreement aren't                
 complied with and we end up in court, they would go back to their             
 original negotiating position and he did not think it best to have            
 a court imposed solution.                                                     
 He said if there are perceived weaknesses in the settlement                   
 agreement the door is open to miners or anyone else.                          
 SENATOR LEMAN noted that there are some things the legislature                
 doesn't agree with and asked why the arsenic level was set a .18              
 parts per billion which is considerably lower than the requirement            
 for drinking water.                                                           
 MR. CHAMBERS explained .18 is just a reflection of what the State             
 and federal standard is.  It is not an element of the settlement.             
 SENATOR TAYLOR asked if the Sierra Club Legal Defense Fund had                
 filed a suit against EPA.  MR. CHAMBERS answered that they                    
 challenged the EPA permit on behalf of their clients, American                
 Rivers and the Northern Alaskan Environmental Center.                         
 Number 318                                                                    
 MARK WHEELER, Alaska Environmental Lobby, said the recent draft               
 NPDA permit for placer mining in Alaska is a result of one and a              
 half years of settlement negotiations between the EPA, the State of           
 Alaska, and the Sierra Club Legal Defense Fund.  It is a good                 
 compromise agreement which seeks to protect water quality in                  
 Alaska.  He encouraged the legislature to support this compromise             
 agreement by rejecting the proposed resolution.                               
 SENATOR TAYLOR asked if .18 parts per billion is a lower standard             
 than the current standard for drinking water.  MR. CHAMBERS replied           
 the current standard is 50 parts per billion, so .18 is quite                 
 lower.  It is based on a human carcinogenic health risk.                      
 SENATOR TAYLOR asked if the 50 parts per billion which municipal              
 water systems use was based on a health standard.  MR. CHAMBERS               
 replied that it was not based on risk of arsenic as a carcinogen;             
 that is what the .18 per billion is based on.  He elaborated that             
 the .18 applies to all discharges in the State of Alaska, not just            
 to placer miners.                                                             
 SENATOR TAYLOR remarked that normal water running off a hillside              
 would be higher than what the number would be.  He asked if someone           
 wanted to extract gravel would they have to set up a filtration               
 system that would take out the normal background levels of arsenic.           
 SENATOR LEMAN answered that he doubted that a filtration system               
 would do that.                                                                
 Number 388                                                                    
 SENATOR PEARCE asked if the administration had a position on this             
 SENATOR HALFORD asked if the administration agreed to this                    
 settlement?  MR. CHAMBERS replied that yes, they did.                         
 MR. BORELL disagreed and said the administration, in a letter for             
 Deputy Commissioner Michelle Brown, said if a series of things were           
 met they would look kindly on it, but the details of the letter               
 were not met and they haven't heard if they have withdrawn their              
 SENATOR PEARCE asked how the State became involved.  MR. BORELL               
 replied that the State was questioned during various points during            
 the negotiations and involved by the EPA.                                     
 SENATOR PEARCE asked if the Miners Association was asked what they            
 thought of the new regulations.  MR. BORELL replied that they were            
 asked.  COMMISSIONER BURDEN specifically called on a couple of                
 different occasions asking for comments.  There may have been one             
 occasion when the EPA attorney called, but they did not see a copy            
 of the draft permit until it was put out for public notice.  They             
 were not aware of the multitude of details in that general permit             
 that had never been discussed with EPA, DEC, or with them.                    
 SENATOR PEARCE asked why the Miners did not actually try to inject            
 themselves into the suit?  MR. BORELL said there were two reasons:            
 there was a group of miners at the time who felt they had an                  
 agreement between themselves and EPA that the existing general                
 permit was going to be satisfactory.  With that promise they were             
 not interested in pursuing it.  The other reason is that the                  
 industry was just burned out on being in court.                               
 SENATOR TAYLOR asked if the settlement decision had been given back           
 to the judge, yet, for approval.  MR. BORELL replied that it hadn't           
 been approved by the court.  It depends on this draft of the                  
 general permit going forward and EPA meeting several other                    
 SENATOR TAYLOR asked if they would be involved at that point.  MR.            
 BORELL replied that they would like to, but they don't have access            
 at this point because they were not involved at any earlier stage.            
 Number 480                                                                    
 SENATOR TAYLOR commented that this seems to be a pattern that the             
 environmental community files a suit against a federal monitoring             
 agency and by filing that suit they are able to go into a back room           
 with the attorneys on behalf of the federal government who talk               
 with their friends about what kind of a settlement should be                  
 achieved on their litigation.  The settlements that come down,                
 then, establish through court order new standards and new                     
 requirements without any of the effected people being in the room             
 or being allowed to participate.                                              
 SENATOR PEARCE moved to pass SJR 39 am with a $0 fiscal note and              
 individual recommendations.  There were no objections and it was so           

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