Legislature(2001 - 2002)

05/03/2002 03:40 PM Senate RES

Audio Topic
* first hearing in first committee of referral
+ 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                                                              
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                                                              
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                                                              
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                                                              
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                                                              
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                                                              
SENATOR THERRIAULT  replied that he thought the  wording was broad                                                              
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                                                              
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                                                              
          SB 371-WASTE PERMIT & COASTAL ZONE EXEMPTIONS                                                                     
CHAIRMAN  TORGERSON   announced  SB  371   to  be  up   again  for                                                              
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                                                              
     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                                                              
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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