Legislature(2001 - 2002)
05/03/2002 03:40 PM Senate RES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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.