Legislature(1993 - 1994)
03/28/1994 08:15 AM RES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE RESOURCES STANDING COMMITTEE March 28, 1994 8:15 a.m. MEMBERS PRESENT Representative Bill Williams, Chairman Representative Bill Hudson, Vice Chairman Representative Con Bunde Representative Pat Carney Representative John Davies Representative David Finkelstein Representative Joe Green Representative Jeannette James Representative Eldon Mulder MEMBERS ABSENT None OTHER LEGISLATORS PRESENT Representative Al Vezey COMMITTEE CALENDAR *HB 286 "An Act relating to certain activities within rivers, lakes, and streams that are important for spawning, rearing, or migration of anadromous fish." HEARD AND HELD IN COMMITTEE HB 436 "An Act prohibiting the Department of Environmental Conservation from adopting or enforcing a regulation that establishes an ambient air quality standard or emission standard that is more stringent than a corresponding federal standard; and providing for an effective date." HEARD AND HELD IN COMMITTEE * (First Public Hearing) WITNESS REGISTER REPRESENTATIVE PAT CARNEY Alaska State Legislature State Capitol, Room 434 Juneau, Alaska 99801-1182 Phone: 465-2186 POSITION STATEMENT: Prime Sponsor HB 286 FRANK RUE, Director Division of Habitat and Restoration Alaska Department of Fish and Game P.O. Box 25526 Juneau, Alaska 99802-5526 Phone: 465-4105 POSITION STATEMENT: Opposed HB 286 TED SMITH P.O. Box 1026 Willow, Alaska 99688 Phone: 495-6637 POSITION STATEMENT: Supported HB 286 DAVE CRUZ P.O. Box 2027 Wasilla, Alaska 99645 Phone: 746-3144 POSITION STATEMENT: Supported HB 286 PAUL HEADLEE, Water Resources Specialist Tanana Chiefs Conference 122 1st Avenue Fairbanks, Alaska 99701 Phone: 452-8251 POSITION STATEMENT: Opposed HB 286 DORN HAWXHURST, Representative Cordova District Fishermen United P.O. Box 939 Cordova, Alaska 99574 Phone: 424-3447 POSITION STATEMENT: Opposed HB 286 DALE BONDURANT HC1 Box 1197 Soldotna, Alaska 99669 Phone: 262-1691 POSITION STATEMENT: Opposed HB 286 BEN ELLIS, Executive Director Kenai River Sport Fishing Chairman, Habitat Protection Advisory Council P.O. Box 1228 Soldotna, Alaska 99669 Phone: 262-8588 POSITION STATEMENT: Opposed HB 286 GREG BELL 2048 Esquire Drive Anchorage, Alaska 99517 Phone: 563-3436 POSITION STATEMENT: Supported HB 286 KATE TROLL, Executive Director Southeast Alaska Seiners Association Executive Committee Member, United Fishermen of Alaska 9226 Long Run Juneau, Alaska 99801 Phone: 789-5117 POSITION STATEMENT: Opposed HB 286 JOHN GEORGE, Representative Alaska Outdoor Council 9515 Moraine Way Juneau, Alaska 99801 Phone: 789-0172 POSITION STATEMENT: Opposed HB 286 CARL LONDON 6231 Old Seward Highway Anchorage, Alaska 99518 Phone: 276-0560 POSITION STATEMENT: Supported HB 286 PAUL MCLAUGHLIN 4916 Castle Court Anchorage, Alaska 99508 Phone: 333-5485 POSITION STATEMENT: Supported HB 286 JERRY MCCUNE United Fisherman of Alaska 211 Fourth Street, #211 Juneau, Alaska 99801 Phone: 586-2820 POSITION STATEMENT: Opposed HB 286 TROY REINHART, Executive Director Alaska Forest Association 111 Stedman, #200 Ketchikan, Alaska 99901 Phone: 225-6114 POSITION STATEMENT: Supported HB 286 JOE WEHRMAN Konkor Forest Products 3527 Vassar Drive Anchorage, Alaska 99508 Phone: 276-6852 POSITION STATEMENT: Supported HB 286 JEFF PARKER, Representative Anchorage Fish and Game Advisory Committee 1207 Hyder Anchorage, Alaska 99507 Phone: 274-5418 POSITION STATEMENT: Opposed HB 286 JOSEPH EASAW, JR., Aide Representative Al Vezey State Capitol, Room 102 Juneau, Alaska 99801-1182 Phone: 465-3719 POSITION STATEMENT: Provided sponsor statement on HB 436 MICHAEL MENGE, Director Division of Environmental Quality Department of Environmental Conservation 410 Willoughby Ave., Suite 105 Juneau, Alaska 99801-1795 Phone: 465-5260 POSITION STATEMENT: Opposed HB 436 LEN VERRELLI, Program Manager Air Quality Management Section Department of Environmental Conservation 410 Willoughby Ave., Suite 105 Juneau, Alaska 99801-1795 Phone: 465-5100 POSITION STATEMENT: Opposed HB 436 STAN STEPHENS, President Prince William Sound Regional Citizens Advisory Council P.O. Box 1297 Valdez, Alaska 99686 Phone: 835-4731 POSITION STATEMENT: Opposed HB 436 MEAD TREADWELL, Deputy Commissioner Department of Environmental Conservation 410 Willoughby Ave., Suite 105 Juneau, Alaska 99801-1795 Phone: 465-5050 POSITION STATEMENT: Opposed HB 436 RICK LAUBER, Representative Pacific Seafood Processors Association 321 Highland Drive Juneau, Alaska 99801 Phone: 586-6366 POSITION STATEMENT: No position on HB 436 PREVIOUS ACTION BILL: HB 286 SHORT TITLE: ACTIVITIES IN ANADROMOUS FISH STREAMS SPONSOR(S): REPRESENTATIVE(S) CARNEY JRN-DATE JRN-PG ACTION 04/20/93 1355 (H) READ THE FIRST TIME/REFERRAL(S) 04/20/93 1355 (H) FISHERIES,RESOURCES,JUDICIARY, FINANCE 03/21/94 2915 (H) FSH REFERRAL WAIVED 03/21/94 2916 (H) REFERRED TO RESOURCES 03/28/94 (H) RES AT 08:15 AM CAPITOL 124 BILL: HB 436 SHORT TITLE: STRICTNESS OF AIR QUALITY REGS SPONSOR(S): REPRESENTATIVE(S) VEZEY,Sitton JRN-DATE JRN-PG ACTION 02/04/94 2255 (H) READ THE FIRST TIME/REFERRAL(S) 02/04/94 2255 (H) STATE AFFAIRS, RESOURCES 02/07/94 2291 (H) COSPONSOR(S): SITTON 02/24/94 2519 (H) STA RPT 2DP 3NR 02/24/94 2519 (H) DP: VEZEY, OLBERG 02/24/94 2519 (H) NR: KOTT, SANDERS, G.DAVIS 02/24/94 2519 (H) -ZERO FISCAL NOTE (DEC) 2/24/94 02/24/94 2519 (H) REFERRED TO RESOURCES 02/24/94 (H) STA AT 08:00 AM CAPITOL 102 02/24/94 (H) MINUTE(STA) 03/05/94 (H) MINUTE(ECO) 03/28/94 (H) RES AT 08:15 AM CAPITOL 124 ACTION NARRATIVE TAPE 94-43, SIDE A Number 000 The House Resources Committee was called to order by Chairman Bill Williams at 8:21 a.m. Members present at the call to order were Representatives Williams, Hudson, Bunde, Carney, Davies, Finkelstein and Green. Members absent were Representatives James and Mulder. CHAIRMAN BILL WILLIAMS announced there is a quorum present. He stated the meeting is on teleconference with Anchorage, Cordova, Fairbanks, Mat-Su, Sitka, Kenai/Soldotna and Valdez. HB 286 - Activities In Anadromous Fish Streams REPRESENTATIVE PAT CARNEY, PRIME SPONSOR, stated HB 286 addresses two issues: 1) it authorizes the commissioner of the Alaska Department of Fish and Game (ADF&G) to exempt certain portions of anadromous fish streams that are used for crossings; and 2) it provides a lesser penalty for violations of current statute (AS 16.05.870 -16.05.895) that were unintentionally committed, such as a piece of equipment falling through ice, as long as the violation did not act recklessly. REPRESENTATIVE CARNEY said according to Article VIII, Section 1 of Alaska's Constitution, the state's policy is to "encourage...the development of its resources by making them available for maximum use consistent with the public interest." This legislation attempts to correct an inequity in current statute. An anadromous stream cannot be crossed if there is even a possibility of fish production. He stated this would seem to favor one resource, fish, over another such as timber, even when it can be shown that spawning grounds will not be harmed nor fish stocks reduced as a result of an attempted stream crossing with a piece of equipment or a vehicle. REPRESENTATIVE CARNEY stated while it is important to protect anadromous streams from damage by recreational vehicles or equipment used for logging, flexibility must be permitted for the department to allow for unintentional violations and to exempt certain portions of streams, where there is no possibility fish stocks will be harmed. (CHAIRMAN WILLIAMS noted for the record that REPRESENTATIVES JAMES and MULDER had joined the committee at 8:25 a.m.) REPRESENTATIVE DAVID FINKELSTEIN asked for an explanation of the difference between the program which ADF&G currently uses and what HB 286 provides. He wondered if under HB 286, a permit will not be required. REPRESENTATIVE CARNEY responded a major difference is the penalty for a violation is reduced and HB 286 makes it possible for the commissioner to create certain crossings. He felt HB 286 takes a little control away from the commissioner. He said ADF&G issues permits but only during a window of opportunity when the department knows there are no eggs in a stream. He wondered how much damage one piece of machinery causes when crossing one stream. REPRESENTATIVE FINKELSTEIN said he is attempting to understand the difference between Section 1 in HB 286 and existing law. He stated current law says the department has the power to provide general permits, etc. He wondered what power Section 1 gives to the department they do not already have. REPRESENTATIVE CARNEY said he cannot answer the question. REPRESENTATIVE JOHN DAVIES asked if the reduction of penalty applies to all violations or just inadvertent violations. REPRESENTATIVE CARNEY replied the reduction applies to all violations. REPRESENTATIVE DAVIES stated if HB 286 passes making it easier to cross streams legally, why is there a need to also reduce the penalties. REPRESENTATIVE CARNEY responded HB 286 requires the department to prove it is a willful crossing. REPRESENTATIVE DAVIES thought Representative Carney had said even in the case of a willful crossing, the penalty will be reduced. REPRESENTATIVE CARNEY said that is correct. Number 130 FRANK RUE, DIRECTOR, DIVISION OF HABITAT AND RESTORATION, (ADF&G), stated the packet in committee member's folders contains a one page analysis of what HB 286 does and does not do, a one page excerpt of a review which ADF&G did about the department's permitting program, a one page permit summary enabling committee members to see how many permits are issued, timing, etc., and examples of general permits from each region. He showed committee members the anadromous stream atlas and a catalog of anadromous streams. He stressed that under statute, the department has to, by regulation, go through a public process identifying those streams which have anadromous fish in them which then go into the atlas and catalog, resulting in people being aware of where the statute does and does not apply. MR. RUE said under present law, there are two ways a person can cross an anadromous stream. An individual permit can be applied for at one of ADF&G's offices and ADF&G then issues the person an individual permit to cross a stream for whatever particular project the permit is for. He said the department issued 1,198 Title 16 permits last year, it took the department an average of 18 days to issue the permits, and only three permits were denied. He pointed out those facts emphasize that the department is trying to work with people, allowing them to cross the streams, while also maintaining fish in the streams. MR. RUE, referring to the review, said people are generally pleased with the permit process as long as the department follows three principles: 1) ADF&G knows what is going on in the streams; 2) ADF&G understands the permittee's objectives and is clear that the department is trying to accommodate their interest in going across a stream; and 3) ADF&G is flexible. He said when ADF&G does those three things, they are usually successful. Number 187 MR. RUE explained there are general permits around the state which are areas where ADF&G can authorize a crossing for anyone in the public without application. He stated ADF&G advertises those crossings to make people aware of them. ADF&G does occasionally condition those permits if there is a sensitive area involved such as a weight limit. He said HB 286 will basically end the department's general permitting process. Instead, ADF&G will have to exempt an area totally from regulation. He felt the bill is an all or nothing decision. He added that once an area is exempted, the department cannot apply conditions such as weight limits, not cutting the banks, or if the banks are cut, restoring them, etc. Mr. Rue said HB 286 will also change the standard of proof and the penalties for different violations. MR. RUE said under HB 286, ADF&G will exempt an area from regulation by petition--an individual can petition ADF&G to remove a part of a stream to make it a ford. He stated when ADF&G writes regulations for the catalog every year, the general public is asked if there are streams or segments of streams which ought to be removed from the catalog. Every year, the department does find a few streams not significant for fish and they are removed from the catalog. Number 226 MR. RUE felt HB 286 will make it difficult for ADF&G to put in crossings or fords because the department will not be able to condition them. He said it will become more expensive because everything will be done by regulation, as opposed to having an administrative general permit. Appeals will be handled by hearing officers costing anywhere from $5,000 to $15,000. People who are unhappy about ADF&G denying a petition can appeal it. Likewise, people unhappy that ADF&G agreed to a petition can appeal it. He explained there will be a small increase in costs in the requirement for additional training for enforcing the different statutory penalty provisions. MR. RUE stressed ADF&G does not object to the idea of trying to get fords. He said ADF&G prefers the current process of establishing fords by general permit where appropriate conditions can be applied. ADF&G does accept the fact that if one is going to cross or build a structure, some impact will be created but they are just trying to keep that impact at a minimum if possible and still achieve the objectives of the individual. Number 271 REPRESENTATIVE JOE GREEN agreed that ADF&G has made great strides in cooperating with industry while protecting fish and wildlife. He expressed concern that if legislation such as HB 286 is not passed, how will ADF&G avoid a situation like what happened to Mr. Bell, an individual who got the permit, did what the permit said, fell through the ice and then got fined $2,000. MR. RUE stressed ADF&G does not cite someone who accidentally falls through the ice while following the department's permit. He said Mr. Bell waited until the end of a three year timber sale to get a permit. The department got him a permit in four days, but he was getting toward the end of the window to get across on the ice. He went across the ice, broke through, kept going, and even though he had been told many times not to drive through the area on the gravel, he went ahead and did that on bad advice from another agency, contrary to what he had been told by ADF&G. Mr. Rue stated after that, ADF&G then worked with Mr. Bell to try and get him across in another area using landing mats to decrease the pressure. MR. RUE pointed out there is an emergency provision in present statute which allows people to proceed with a project if there is an emergency involved and inform ADF&G about it later. ADF&G also issues verbal permits on the telephone if there is a problem. He said if the department is frivolous about citing people, that is why there are courts and the courts will determine the department is frivolous. Number 316 REPRESENTATIVE GREEN clarified if a person is acting in good faith in what ADF&G has permitted him to do and has an inadvertent problem, the person will not be cited. MR. RUE said the person will not be cited by ADF&G. He added Fish and Wildlife Protection could try and get the attorney general's office to take a case without asking ADF&G. REPRESENTATIVE CON BUNDE observed that this is another example which gives strength to moving protection back into the department. REPRESENTATIVE CARNEY felt it was significant that Mr. Bell was required to get an attorney, go to court and was given probation, yet the error in judgment which Mr. Bell made was to turn around and go back through the stream. He wondered what other options Mr. Bell had. REPRESENTATIVE JEANNETTE JAMES asked if a person has a permit to cross a stream, is doing so according to the rules and falls through, what are that person's options. MR. RUE stated he should rescue his life and equipment and then contact ADF&G about what he should do next. Number 350 REPRESENTATIVE JAMES asked if in Section 1, language could be added saying it is a defense if the violation was innocent and the person responded in a reasonable way to get his equipment out of the stream. If a person finds themselves in a stream, how do they get out with existing law and what is the penalty. MR. RUE responded if a person has a permit from ADF&G to go through a stream, the person is complying with the permit and an accident happens, it is not a citable offense. He said ADF&G does not have many violations each year. Number 403 REPRESENTATIVE FINKELSTEIN asked what the existing penalties are for violations. MR. RUE replied currently, the maximum penalty a person can receive is a Class A misdemeanor which is different for individuals and corporations. He said the penalty for a corporation is up to $200,000 and for an individual it is up to $5,000 or one year in jail. He emphasized the court has never imposed that level of penalty. REPRESENTATIVE FINKELSTEIN recalled Mr. Rue had said of the 1,200 permits given out, approximately three were denied. MR. RUE said that is correct. REPRESENTATIVE FINKELSTEIN asked of the others, how many of them received modification. MR. RUE replied ADF&G's favorite kind of permit is one the department approves as designed or proposed. He said ADF&G does condition permits, most often during construction seasons. He explained there is usually a six weeks or two month window when the juvenile fish have left the gravel, before the adults return and begin to spawn and people can get into the stream and construct things not causing major problems. He said not every contractor knows all of the details of any particular system or what its sensitivities are, so ADF&G tries to work with the person on those types of things. REPRESENTATIVE FINKELSTEIN asked of those 1,200 permits in an average year, how many result in going to court for enforcement. MR. RUE replied maybe three. Number 464 REPRESENTATIVE BILL HUDSON asked how many of the permits are small. MR. RUE said he is not sure but thought the small permits are not a big percentage. REPRESENTATIVE HUDSON asked if he wanted a permit, what process would he follow. MR. RUE responded it would depend on where he lives. A person living in the Fairbanks area would go to the Fairbanks ADF&G office and get a Title 16 application form. If a person lives in the coastal zone, that person will also complete a coastal project questionnaire which has the Title 16 form attached. REPRESENTATIVE HUDSON asked if a person has a piece of property, would that person be able to call an ADF&G office and get verbal approval to make a crossing for a temporary operation. MR. RUE said it would depend on the situation. If the situation was an emergency, ADF&G will give a verbal approval. He stressed ADF&G prefers not to give verbal permits, especially if the department has time to look at the actual plan. REPRESENTATIVE JAMES said in considering the permit application for crossing streams, is the amount of usage which the crossing might have ever considered in determining the possibility of a permanent crossing. MR. RUE said the department does. For example, in Fairbanks, ADF&G works with the Department of Transportation (DOT) and people in the Nome area to identify those places people generally use and a general permit is issued. He gave other examples. Number 543 REPRESENTATIVE JAMES felt a permanent crossing is the wisest decision because if there is danger to fish, a permanent structure will be less damaging than if individuals get permits to cross time after time. MR. RUE agreed, but said many times the department faces the problem of financing. ADF&G likes to work with local governments to determine capital projects to build permanent structures and/or DOT where there is enough crossing going on. REPRESENTATIVE CARNEY asked Mr. Rue to comment on how many potential salmon eggs will be damaged by a 40 foot ford. MR. RUE replied it would depend on how much spawning was occurring in the area. He said if intense spawning has been occurring, thousands and thousands of eggs will be killed, possibly up to 100,000 eggs. REPRESENTATIVE CARNEY asked how many salmon eggs it takes to produce one salmon. MR. RUE responded it depends on the species but he estimated 100 to 1,000. REPRESENTATIVE CARNEY asked what the penalty is if a person crosses a salmon stream with a four wheeler or a farm tractor without a permit. MR. RUE stated the penalty can be up to a full Class A misdemeanor which is $5,000 and up to one year in jail. He stressed he has never seen that type of penalty imposed. Number 620 CHAIRMAN WILLIAMS asked Mr. Rue to explain the fiscal note. MR. RUE stated it is difficult to estimate, but ADF&G is assuming they will have five petitions and three appeals annually to remove sections of stream from regulation. The department's experience with hearing officers, which will be required to deal with the petitions, will cost from $5,000 to $15,000 each. He said most of the costs will come from any appeals of petitions which ADF&G denies or approves which someone is unhappy with. He noted there will also be some increase costs in training. CHAIRMAN WILLIAMS said he did not understand where the increases will come from. MR. RUE stated the process to create a ford is now one of exempting a chunk of stream formally, by regulation from the statute. With HB 286, a section of stream is no longer subject to statute and because of that, ADF&G will need to use the Administrative Procedures Act to establish that regulation. That decision can be appealed through the Administrative Procedures Act which means a hearing officer must be used costing between $5,000 to $15,000 each, depending on how significant the appeal is. It is a very formal way to exempt sections of streams for fords as opposed to the present process of general permits. It is a regulatory exemption. TAPE 94-43, SIDE B Number 000 REPRESENTATIVE JAMES referring to the Bell case, asked if Mr. Bell would have come to ADF&G after falling through the ice and bringing his vehicle back, what would have been his chances of getting a permit to continue to cross where he was, assuming the ice was not going to refreeze. MR. RUE responded ADF&G told him they would be willing to work with him to either move upstream or downstream where the ice was firm or use something like landing mats which spreads the pressure from the vehicle. He said there was a case in Haines where a logging company had to cross the Chilkat River when the coho were spawning, as the company would have had to leave their equipment on the other side for an entire year if they were going to use the ice. ADF&G determined that was not reasonable. In exchange, the company gave ADF&G two days of backhoe time to work on rearing ponds near the Haines airport. REPRESENTATIVE CARNEY asked how deep the water was where Mr. Bell fell through. MR. RUE said he would have to look at the records to answer the question. REPRESENTATIVE CARNEY wondered if there were salmon eggs present when Mr. Bell fell through. MR. RUE replied he would have to check with the staff who dealt with that issue. Number 045 REPRESENTATIVE GREEN noted there are many different accounts of the Greg Bell case and asked how many such cases does ADF&G have where people are trying to comply with their permit but for some reason, usually nature, result in a problem. MR. RUE stated there are very few situations where there is a violation. Usually ADF&G issues a notice of violation and asks that the problem be fixed. As mentioned earlier, an accident is not a citable offense. He estimated there are less than five citations a year which go to court. REPRESENTATIVE JAMES asked how the violations are determined. MR. RUE replied usually the general public complains to ADF&G. REPRESENTATIVE JAMES clarified it is possible there are more violations which the department is unaware of. MR. RUE said that is correct. TED SMITH, WILLOW, testified via teleconference and stated there are two points which need to be mentioned. He said ADF&G does not use the permit system very often and stressed HB 286 would not be before the committee if the permit system had worked correctly. Mr. Bell went through the individual permit process, but a more rational approach would have been for ADF&G and the Department of Natural Resources (DNR) to work together and get a general permit in advance. He said this particular location is on a slough and had been used for prior logging. He felt it was irrational to believe that every inch of every anadromous water is equally valuable. MR. SMITH stated HB 286 will provide an element of intent. He said AS 16.05.900 presently says a person who violates AS 16.05.870 - 16.05.895 is guilty of a class A misdemeanor. This bill will provide an element of intent and provide for a lesser citation in situations where there is no willful violation of the law. Number 157 DAVE CRUZ, WASILLA, testified via teleconference and stated his logging company has had similar problems of ice breaking and being caught in precarious conditions with equipment. He pointed out that one pound per square inch exerted by a bulldozer, if it is just graveling across a ford, is less than that of a person walking along the edge of a river. He felt Mr. Rue's assessment of the damage of heavy equipment is incorrect. He said many of these crossings date back to the gold rush days and added there are not many roads but there are many trails. He stated these crossings serve as a highway in the winter and there is a need to keep them open for the benefit of the public. He felt changes are needed. PAUL HEADLEE, WATER RESOURCES SPECIALIST, TANANA CHIEFS CONFERENCE (TCC), testified via teleconference and stated TCC needs clarification why upland resource utilization, which is not very well defined, will be exempt from subsections (b) -(d). He said these subsections are the heart and soul of the statute and that heart and soul is (indiscernible) in anadromous streams (indiscernible) salmon. He pointed out that subsections (b) - (d) include a notification process, as well as a plan for specifications for the activity. MR. HEADLEE felt this process works very well currently. If the department determines that plans are insufficient, the applicant is notified and can either submit additional plans or request a hearing. TCC is not asking that any activity be restricted but rather, just allow the activity to go through the necessary process and be looked at objectively, so irreparable mistakes are not made. He felt the state cannot afford any mistakes at a time when it is trying to rebuild a very depressed chum salmon stock. He said TCC is opposed to HB 286. Number 223 DORN HAWXHURST, REPRESENTATIVE, CORDOVA DISTRICT FISHERMEN UNITED (CDFU) testified via teleconference and expressed opposition to HB 286 on behalf of CDFU. CDFU is opposed to activities which adversely affect spawning, rearing, or migration of anadromous fish. She said this proposed legislation dilutes existing law and makes it easier for individuals and government agencies to interfere with rivers, lakes and streams. The proposed legislation seems to penalize only those who willfully violate the law instead of the current law, which penalizes those who cause harm to these areas whether intentionally, knowingly, recklessly, or otherwise. She stated HB 286 makes ignorance an acceptable excuse. MS. HAWXHURST stated in regard to Section 1, the commissioner already does have the power to provide permits and this permitting process adequately serves the public. She felt there is no reason for any additional blanket exemptions. She stressed existing law is not an example of resource favoritism--it is an example of responsible resource management. She urged members to reject HB 286 and leave the existing law alone. Number 247 DALE BONDURANT, SOLDOTNA, testified via teleconference and expressed opposition to HB 286. He felt the intent of the bill is to lower the responsibility and liability for damages to the state's fishery habitat. He stated either ADF&G must be given a strong tool to protect the habitat or it should be admitted that the state has no more concern shown in other states, where there are declines and in some instances, a complete loss of fish protection. In regard to multiple use of the state's resources, he thought there is a need to expand the control of potential damage practices and more strictly scrutinizing any exemptions of that control. In addition to the concern about how many salmon eggs which can be potentially damaged, he felt turbidity is an important factor in the protection of the raising of salmon. MR. BONDURANT stated anyone can say they did not believe any damage could be done and use it as an excuse. He felt people need to be responsible for their mistakes, whether they are intently or accidental. He thought protection of fish and habitat remain the full responsibility of ADF&G. He strongly supports ADF&G's position on HB 286. Number 290 BEN ELLIS, EXECUTIVE DIRECTOR, KENAI RIVER SPORT FISHING, AND CHAIRMAN, HABITAT PROTECTION ADVISORY COUNCIL, testified via teleconference and stated his comments are also supported by the Alaska Sport Fishing Association. He expressed opposition of HB 286. He said while it seems Representative Carney's intent is to streamline the state's regulatory process without putting anadromous fish habitat at risk, he believes that passage of HB 286 will lead to the harm of critical fish habitat. HB 286 will reduce the protection of anadromous fish and will allow anyone who wants to ford an anadromous spring without restrictions, to submit a petition to do so, regardless of how important the area is for the protection of anadromous fish. He said the department can deny petitions but department costs will likely increase substantially because administrative actions (indiscernible) that will be possible under this change. MR. ELLIS felt the petition amendment is unnecessary because the department issues hundreds of permits to cross anadromous streams, including fords, annually. He stated in 1993, more than 99 percent of all persons who applied for permits received their permit within an average of 17 days. The department has also issued a number of general permits to the public for (indiscernible) for a large number of streams and portions of state game refuges and critical habitat areas using recreational vehicles and highway vehicles. He pointed out there is an existing process whereby citizens can petition the commissioner to remove a water body from the anadromous water catalog. The department receives petitions from the public and if the water body or a portion is determined not to be important for anadromous fish, the department removes it from the catalog. ADF&G annually removes a number of these water bodies. He stressed there is no real problem in attaining a permit to cross a specific anadromous water body. MR. ELLIS stated the reduction of penalties and the increased burden of prosecution will make the Anadromous Fish Act less of a deterrent to violators, who under the current law, can face a potential $5,000 fine and up to one year in jail for working in an anadromous stream without an ADF&G approval. He said though the possible intent of this change may be to provide more assurances that the rights of a violator be protected, the net effect will likely be to increase the costs of investigations, decrease the deterrent effect of the law, and even further reduce the small number of cases prosecuted. Number 338 GREG BELL, ANCHORAGE, testified via teleconference and pointed out in regard to his case, a permit had already been issued on the Susitna Crossing to the Division of Forestry. He said it was his first process and he had told ADF&G at the time, he (indiscernible) in the Title 16 permitting process. He noted he had been in business for 15 years and had never had a violation. He got a permit and then determined another permit was required. He said Mr. Rue had indicated that he had waited until the last minute to get his permit. He explained the snow was seven feet deep for two years and that is why he could not get into the sale. Nature is a big factor and that is why there is a need to have as big of a window as possible. MR. BELL stated the permitting process is cumbersome. He said when he went to court, he received a bigger fine than drug dealers or driving while intoxicated offenders receive. He explained a month after he fell through the ice there was no water in that spot. He said he did receive an open water crossing permit. When that permit became valid, the water had risen eight feet. He went out with ADF&G the next day along with a fish biologist and they looked at the area upstream and downstream. There was a place to cross but one of the persons said no, so they left. He stressed the process is not easy and added that most people do not have as much energy as he does in determining how to change the process. Number 390 MR. BELL said he had asked a fish biologist what damage a fish stream crossing does to the fish stock and that biologist replied very little, if any. He felt what happened to him was unjust and that is why this legislation is before the committee. He stated HB 286 gives more control to the commissioner. He thought ADF&G has something against the timber industry. Number 410 KATE TROLL, EXECUTIVE DIRECTOR, SOUTHEAST ALASKA SEINERS ASSOCIATION, AND EXECUTIVE COMMITTEE MEMBER, UNITED FISHERMEN OF ALASKA, said she is one of few people still around who was involved in the negotiations of the state Forest Practices Act which passed the legislature in 1991. In that process, the fishing industry recognized there were other uses of the forest and there would be a loss of habitat but also there was a need to make accommodations for the economic interests of the timber industry. That was accomplished in various ways and it was a process which recognized the give and take, and cooperation of both industries. MS. TROLL stated in going through that process, those involved looked at what was established and how ADF&G currently reviews their anadromous catalog and how they exempt streams from that process. The key point accepted throughout the process was that Title 16, as it relates to stream crossings, works. She expressed opposition to HB 286 because it begins to erode that process and begins to back away all the give and take agreements which were recognized. The bill also says the process is broken and earlier testimony says just the opposite. The process is working. MS. TROLL told committee members they not only need to recognize that the permit process is working, but to also recognize there is a need for the process of the entire Forest Practices Act and the agreement to continue to work. She expressed opposition to HB 286 also based on the fact that Title 16 is used to defend the state's position on PACFISH and other federal rules coming into play. She felt it was prudent and incumbent upon the legislature to maintain those laws which are working for the state as a defense against other federal initiatives. She felt it is important to be consistent. MS. TROLL pointed out in many other arenas of the legislature currently, there is a desire to get tougher on violations and crime including the fishing industry. She felt it is unfair to make exceptions for another industry-- an industry which could potentially harm another economic interest. She stated HB 286 addresses a law which is not broken and to act on it, will undermine all the good put forward in protecting Title 16 and making it work reasonably, and standing behind the Forest Practices Act in protecting the state's rights to manage for the balance of the state's resources. She urged committee members to reject HB 286. Number 532 JOHN GEORGE, REPRESENTATIVE, ALASKA OUTDOOR COUNCIL (AOC), expressed opposition to HB 286. He said although AOC fights for access to areas for hunting and fishing, crossing anadromous streams with four wheel drive vehicles or bulldozers adversely impacts AOC's interests. He stated testimony has verified that permits are issued on a regular basis, in a timely manner. There has been no indication that the permits are complicated or expensive to get. He noted other testimony indicated the fines can be relatively substantial. He felt there is a need for substantial penalties to apply in the most egregious cases. MR. GEORGE said the system does work--it allows substantial penalties where they are appropriate and allows minor or no penalties where appropriate and people get permits. He asked what better system is there. Number 575 CARL LONDON, ANCHORAGE, testified teleconference and stated the public owns fish yet there is no value put on the fish. He felt the state should begin putting a value on the fish harvested and let the harvester pay for the fish taken away from the public. He said the timber industry has to pay for its harvest, so the fishermen should pay likewise. In regard to the government having less revenue from the oil tax which will require a cut in the state's budget, he suggested the state should cut agencies' budgets that proliferate with unnecessary regulations such as (indiscernible). He suggested cutting their budgets and letting them reorganize under another agency, requiring them to become more responsive to the constitutional rights of the individual. MR. LONDON stated the average of 17 days to get a permit means 17 working days, which is almost a month. He said the constitutional right of resources being equal is (indiscernible) of the fishing industry at this time and totally ignores the rights of access to crossings and to resources such as timber or mineral rights. He encouraged scrutiny of ADF&G which has gone amok with a power grab (indiscernible) the individuals who support that system. Number 631 PAUL MCLAUGHLIN, ANCHORAGE, testified via teleconference and expressed support of HB 286. He said the bill will give more leniency for business people. He stated it has become more and more difficult to remain in business over the years, especially small businesses, because of rules and regulations. He noted there are several examples of people crossing the stream, referred to in the Bell case, over a number of years and ADF&G did not do anything about it. He pointed out there are hunters, fishers and homesteaders who probably cross these streams 100 times more than business people do for a small timber sale. He felt people trying to do business in Alaska should be given a fair shake. He wondered if anyone had evaluated how much damage is done by a track of a vehicle crossing a stream eight feet wide as compared to a stream several miles long. TAPE 94-44, SIDE A Number 000 JERRY MCCUNE, PRESIDENT, UNITED FISHERMEN OF ALASKA (UFA), stated UFA opposes HB 286 and does not feel anything is wrong with Title 16 as written. UFA does not agree with the opinion that the state should accept some temporary loss of fish habitat for the benefit of other users. He said there has to be other compromises for putting equipment in streams as determined by the commissioner of ADF&G. He gave personal testimony of using the permitting process himself. He stated the salmon eggs in streams are the fisher's bank in the future and are the state's bank for the future. He stressed it is difficult to put a value on salmon eggs. The value of those eggs is the future of that stream to be able to produce salmon. In the Prince William Sound area, there are 926 numbered streams and working together, those streams produce 25 million fish. He said there is room for growth in all industries. He felt Title 16 is fine as is. Number 040 TROY REINHART, EXECUTIVE DIRECTOR, ALASKA FOREST ASSOCIATION (AFA), stated AFA supports HB 286 to authorize the commissioner to designate stream crossings. He pointed out the first line of the bill says the commissioner "may by regulation" which does not mean he will. AFA looks at HB 286 from the standpoint of wanting to protect fish as well as the forest products industry. He said AFA views HB 286 as an opportunity for the commissioner to designate areas which will minimize the impacts on fish or cause no impacts on fish, while allowing for crossings in general areas excluded for fording. AFA also believes HB 286 will help in enforcement actions because people will know crossings were done through regulation. He stated the bill will not take away ADF&G's power to issue general or specific permits nor will the bill stop ADF&G from putting conditions on those permits through the regulation process. Number 058 MR. REINHART said AFA believes HB 286 is a streamline of the present process which will continue to protect fish and continue to make Title 16 work. He stated in regard to the criminal penalty section, there is some question as to how much leniency or discretion the department has once a violation occurs. AFA believes that question can be cleared up through negligence and wrongdoing. He said currently there is an administrative agency going forward with criminal prosecution and there needs to be some sort of standard rather than just an incident occurring before a person will go through a Class A or Class B misdemeanor. MR. REINHART stated AFA feels HB 286 can protect fish and will facilitate the ability of people like Mr. Bell to harvest timber sales in a timely fashion and an environmentally sound manner, doing so for the benefit of their communities and their employees. Number 078 JOE WEHRMAN, REPRESENTATIVE, KONKOR FOREST PRODUCTS, testified via teleconference and expressed support of HB 286. He said HB 286 will allow ADF&G to focus their efforts on protecting streams where significant numbers of fish actively spawn, rather than worry over every inch of an anadromous stream, which might possibly be used by a single fish. Regulations resulting from HB 286 should effectively eliminate the need for hearings for individual exemptions which Mr. Rue alluded to, thereby making the fiscal note unnecessary. He noted much has been said about the 1,200 permits every year and pointed out that in total, the permits only represent a total of less than ten acres being subjected to any risk of habitat disturbance. He stated Konkor Forest Products believes that more damage is done to fish habitat by fishermen wading, than what is allowed in the permitting process. MR. WEHRMAN stated anybody in the state can propose a stream to be in the anadromous stream catalog yet it is very difficult to get the stream out of the catalog once it is in there. He pointed out there is no requirement for ADF&G to let landowners or land managers know that they are adding streams to the catalog. He suggested that in AS 16.05.870(e), page 1, line 5, the word "may" be changed to "shall". He stressed if the word remains "may", everyone can be assured there will not be any changes resulting from HB 286. He has been told by ADF&G employees that the department's long-term goal is to completely prohibit both fords and culverts as legal methods of crossing any stream, whether anadromous or not. He pointed out that goal will make small development areas infeasible statewide. MR. WEHRMAN said the present law is a zero tolerance. He stressed Alaska needs to get back to allowing rational resource development and HB 286 is one step in that direction. Number 115 JEFF PARKER, REPRESENTATIVE, ANCHORAGE FISH AND GAME ADVISORY COMMITTEE, testified via teleconference and expressed opposition to HB 286 because it reduces penalties, makes convictions more difficult, (indiscernible) value of the Anadromous Fish Act. He said from the economic perspective, the present law is good law. The present law tries to assure (indiscernible) resource development, whether it is commercial fishing, recreation, or timber harvest--all are allowed to operate in a manner which is compatible with each other and assures that each of those resource uses continues as an economic venture. MR. PARKER said to weaken the present law puts one resource development ahead of others. He felt the characterization that the present law puts fish ahead of timber is a mischaracterization. He expressed hope that the legislature is sensitive to what HB 286 will do from an outside or non- Alaskan perspective. Alaska is frequently criticized unjustly for not caring about the protection of its fish and wildlife resources. The present statute is a good example of the state legislature caring about protection of fish and wildlife resources. To weaken it, appeals and reenforces outside interests to criticize this state unjustly. He gave an example. MR. PARKER stated the issue is not about the harvest of one resource over another, it is about the mutual harvest of both types of resources--fish and timber. The issue is not about favoring one resource over the other, it is allowing both to continue. The issue is not a question of keeping access open, because the permit system does that and it works. It is not a question about philosophy. He stressed the legislature should be careful about requiring the substantial violation being a willful violation. That is not required in speeding, drunk driving, or of legislators themselves in their compliance with financial disclosure or campaign financing. He felt it is much better to mitigate the circumstances of any particular violation--that is, its willfulness in the context of sentencing rather than in the context of the classification of the crime itself. Number 172 MR. PARKER said there has been testimony about how other resource users, such as fishermen, should pay for their resource use. He agrees with that concept. However, the implication that recreational fishermen do not pay is inaccurate. He pointed out that recreational fishermen not only pay for their license fees but also pay through the (indiscernible) federal excise taxes which pay every cent going into the sport fishing division. That division is the only agency within the state government not funded by general revenue, but solely by user fees. Number 185 MR. PARKER stated with respect to constitutional rights to use natural resources, there needs to be a clarification of a prior statement made. Constitutional rights of common use relate to fish, wildlife, and water, not timber or other natural resources. He said the timber industry expressing concern about the extent of the impact on the fisheries is highly analogous to the timber industry saying they would express concern or be opposed to fishermen expressing concern over reforestation requirements. He pointed out what protecting fish habitat does is essentially reforestation of a fishery. One never hears the timber industry opposing reforestation or (indiscernible) because that is very reasonable, sensible, natural resource management. That is the same thing as what is before the committee except this is concerning fish. CHAIRMAN WILLIAMS announced HB 286 will be held in committee for further consideration. Number 223 HB 436 - Strictness of Air Quality Regs. JOSEPH EASAW, AIDE, REPRESENTATIVE AL VEZEY, stated HB 436 is designed to preclude the Department of Environmental Conservation (DEC) from adopting by regulation, any ambient air quality or emission standard that is more stringent than the federal standards in the Clean Air Act. This bill will limit that authority to the legislature which can adopt by statute any standard deemed in the state's best interest. Number 235 REPRESENTATIVE FINKELSTEIN wondered how this bill will work if there is a new industry with a new pollutant being put out and there is a health hazard. He said there are areas presently where DEC has the authority to regulate that activity, something not addressed at the federal level. He asked if that authority is being taken away in HB 436. Number 249 MR. EASAW responded that authority is not being taken away. He said HB 436 limits the authority of DEC to not set forth any regulation which is more stringent than those of the federal regulations. The bill does allow DEC to set regulations where no federal regulations are addressed. REPRESENTATIVE FINKELSTEIN asked if subsections (b) (3) and Section 2 address that issue. MR. EASAW said that is correct. Number 265 CHAIRMAN WILLIAMS pointed out the legislature went through HB 167 last year and there was a lot of discussion and debate on the bill, with many compromises made to arrive at an agreement. He wondered how HB 436 will affect HB 167. MR. EASAW stated he does not dispute the time which DEC may have put into HB 167 and the compromises made. He said the intent of HB 436 does not negate any of the work done on HB 167. The bill simply says DEC cannot set forth regulation standards which are greater than the federal regulations. CHAIRMAN WILLIAMS clarified HB 436 will not affect anything in HB 167. MR. EASAW stated HB 436 does not necessarily impact the work of HB 167. Section 5 of HB 436 adds a definition of regulated air contaminant and does say any regulation adopted under AS 46.14.010(b)(2), meaning those regulations adopted which were greater than the federal standards could be affected. REPRESENTATIVE FINKELSTEIN asked what is the reason for HB 436. MR. EASAW responded there are two prominent reasons. First, there is a feeling that anything that is in the state's best interest which is beyond the guidelines of the federal regulations should be left to the legislature. Second, when guidelines are set forth which are greater than those of the federal regulations, years of permitting processing is required for certain industries and the economy is affected. Number 322 MICHAEL MENGE, DIRECTOR, DIVISION OF ENVIRONMENTAL QUALITY, DEC, stated HB 436 is not good for Alaska's business community or the state's citizens. DEC feels under appropriate conditions and circumstances it does make sense for DEC to proceed beyond where the federal government sets a standard. He noted the situations which develop in the state are principally in the area of ambient air standards, where DEC is looking at an air shed and the ability to step into that air shed and restrict emission values (indiscernible) than the federal government would authorize where it makes sense to do so. He agreed that could be accomplished through the legislative process but noted how slow that process can be. He pointed out, with the flexibility DEC currently has, DEC can accomplish this with one-on-one negotiations with the permittee or those seeking permits and do it fairly quickly. MR. MENGE stated another key component is the two year process it has taken to get to the current point. He said although HB 167 is just one component within a very large statutory package, it is a balanced equation. DEC worked for two years to strike a balance, which represents protection for the environment plus allows an environment in which business can also work. He stressed there was unanimous support across all the environmental and business communities for HB 167. Therefore, DEC does not feel it is a good time to step in and tinker with that equation especially since DEC is currently in the process of writing the regulations for the statute. REPRESENTATIVE JAMES noted the last sentence of the sponsor statement says, "This bill will limit that authority to the legislature which can adopt by statute any standard deemed in the state's best interest." She thought the Air Quality Act passed last year contained provisions making the rules more restrictive than the federal standards, which she does not believe HB 436 affects. She stated HB 436 affects the authority of the regulators to regulate past what is contained in HB 167 and/or other federal regulations not necessarily addressed in that bill. HB 436 takes the ability to make those determinations and puts it in the lap of the legislature, as opposed to the regulators. She asked why that is not a good idea. LEN VERRELLI, PROGRAM MANAGER, AIR QUALITY MANAGEMENT SECTION, DEC, responded there are two points to look at regarding the authority to regulate. One is a situation like Unicol which has an ammonia standard currently which they did not have before. The federal government does not have an ammonia standard. Therefore, through a four year intense process, a regulation was established, resulting in an agreement between the community and the industry to establish that standard. He said in the new statute, if DEC decides to do something like that again, it will come before the legislature, a committee is formed of the peers of that particular pollutant and a resolution is found. MR. VERRELLI stated the other point is what DEC does at a request of the permittee. He mentioned the Healy Clean Coal Project, as an example. He said the only reason that permit was able to be issued by DEC is that the source came to DEC, saying they wanted more stringent emission standards, enabling them to keep emissions lower and get the National Park Service to agree the project will not impact Denali National Park. He stressed HB 436 will require going through a more stringent permit process. Number 444 STAN STEPHENS, PRESIDENT, PRINCE WILLIAM SOUND REGIONAL CITIZENS' ADVISORY COUNCIL (RCAC), testified via teleconference and stated HB 436 will prohibit DEC from adopting or enforcing a regulation which establishes an ambient air quality or emission standard more stringent than federal standards. With the considerable time devoted by numerous Alaskans over the past two years on HB 167, RCAC was extremely surprised to see HB 436 proposed. RCAC was even more surprised to see HB 436 scheduled for a hearing. He stated the effort devoted to HB 167 was a multi-year endeavor by representatives of many diverse interests in the state. The result of this effort is Alaska's current air quality statutes, regulations and public policies. These results also represent a compromise among those different perspectives. He noted those who represented the public interest dedicated a significant amount of time and resources to develop the compromise. Those same people largely accepted the compromise, despite that industry clearly fared better than the public. Number 464 MR. STEPHENS stressed it is extremely disheartening after this process and good faith effort to see HB 436. In the past, DEC has not been overbearing in adopting regulations more stringent than federal law requires. For example, in the air pollution area, DEC has adopted only two additional ambient air quality standards which were for ammonia and reduced sulphur compos and both were for special industrial pollution problems in Alaska. DEC has adopted smoke capacity rules particularly important for vessel traffic in Juneau, Seward, and Valdez. DEC has a program to control ice fog, hardly a concern to the Environmental Protection Agency (EPA) or the rest of the country. DEC has adopted special rules applicable to the port of Anchorage allowing liquid loading racks and delivery tanks to come to the Government Hill neighborhood. Mr. Stephens said few will argue those regulations are necessary to protect public health and welfare and natural resources, even though they were not forced by federal law and are more stringent than federal law. Number 484 MR. STEPHENS stated it is also not clear that HB 436 will accomplish anything. Specifically, the state will give up considerable flexibility if this legislation passes. For example, the Golden Valley Electric Association recently agreed to alter air emissions to make room for the Healy Coal facility emissions (indiscernible) Denali Park. He said in the port of Valdez, the EPA is setting emission standards for organic vapor emissions due to tanker operations at Alyeska's Valdez Marine Terminal. Valdez is the largest single source of organic vapor emissions. Number 504 MR. STEPHENS stressed state involvement and flexibility is not in the best interest of the public or industry. RCAC strongly opposes HB 436. The ability to set air quality emission standards to protect the health of Alaskans is an important state's rights issue which should not be casually given away. Number 515 REPRESENTATIVE JAMES asked why the state should have regulations which are more stringent than federal standards. She added that she does not consider permitting the same as establishing regulations. MR. VERRELLI responded it is. When an emission standard is put in a permit, it becomes law for that particular permit and that particular source. Number 525 REPRESENTATIVE JAMES asked if that permit requirement and regulation is at the request of the permittee, will HB 436 disallow DEC from doing that. MR. VERRELLI replied yes. REPRESENTATIVE JAMES asked what the time frame is for establishing regulations relating to ambient air quality standards. MR. VERRELLI estimated it takes approximately one year to go through the entire process. REPRESENTATIVE JAMES wondered since HB 436 will still allow the legislature to make rules and regulations more strict than existing federal regulations, if it would be wise in instances where there should be more strict regulations for DEC to bring that situation to the legislature to make that decision. MR. MENGE stated timing is a very crucial issue. DEC oftentimes enters into an air permit situation where there is a fairly polarized community with a variety of industrial interests. DEC negotiates the numbers which all of the constituents can live with, by incorporating them into the permit and then running the permit through the permit approval process. That then becomes a part of the public record and public acceptance, thus affecting the overall permit. If DEC was to bring that process before the legislature, it will be more difficult to arrive at an agreement. He said the process tends to attract additional concerns and policy issues, so the narrow focus, in a specific geographic area, with a very narrow constituency, oftentimes provides an opportunity to resolve a problem before it begins to grow out of proportion. He felt it is a question of timing. Number 585 REPRESENTATIVE JAMES clarified that when someone applies for a permit where state and federal laws apply, because the public wants something even bigger, DEC, in issuing the permit, should be able to do what the public asks. She asked where does the public's right come into play in getting something which is more than what state and federal laws require. MR. MENGE responded if the permittee is within the air increment of a region, the public is entitled to that. He said the public interest is represented through the permit process. He noted the Healy project is a good example. There is one emitting source well within permit limitations and a second emitting source is coming in there. The affected community was unprepared and unwilling to accept an increase above the ambience standard. The public had a vested interest and became fairly vocal through the permit process. The permittee recognized a difficult situation, so it made sense for the permittee to request a lower standard, which had to be done in conjunction with the existing source. Therefore, there were three groups along with the state, together determining what the appropriate limitations for all the permits should be, which allowed both to proceed forward while still allowing the public to accept the decisions made since they were a part of the process. REPRESENTATIVE JAMES stated it appears the legislative process is being circumvented. MR. MENGE responded the public does not have a voice beyond the existing air limitations standards. The public's voice comes into play when a permit is being written and the permittee is requesting to pull back. Once the permit is reviewed and sent out for public comment, the public has an opportunity to comment. He said if the standard is to be strictly adhered to and the law does not allow going beyond a certain limitation, then the permittee is not going to be able to submit their permit because there will not be room for the permittee within that air shed. The permittee will have to stand back and wait until the older industrial entity goes away or a process is developed allowing them to fit into the remaining air increment. MR. VERRELLI stated all regulations proposed by the department and the permits go to a legislative committee, so that interest does come to the legislature. There is a committee that reviews these permits and regulations while DEC is developing them. MEAD TREADWELL, DEPUTY COMMISSIONER, DEC, stated the legislature has given the department authority to protect public health. The legislature has not looked at that authority in terms of what the federal government has determined what public health is. Rather, the legislature says DEC has the capability to look at Alaska's needs, to protect Alaskans. Therefore, there is a state's rights issue as well. He said DEC was also given strong binders last year in the compromise reached through HB 167. The compromise requires if DEC does something different than the federal requirements, DEC must commission a peer review panel and go through an extensive risk assessment process which is somewhat expensive. He felt there already is a strong bind on DEC if the department decides to move forward and do something the federal government is not doing. MR. TREADWELL said many times, DEC can see down the road and determine the federal government is going some place which DEC does not want to go. If DEC has a regulatory process in place, the federal government is likely to defer to DEC's process in some cases, rather than adopt their own. He pointed out that is what is happening in relation to Valdez. The federal government is setting air standards for organic contaminants for marine terminals around the country-- terminals one hundredth the size of the Valdez terminal. He added the technology the federal government is requiring is one Alyeska may not be able to meet. DEC can meet the needs of Alaskans by having a standard in place ahead of the federal government, which is stronger than what the federal government has presently. He felt in the end, DEC will be deferred to and a different, more flexible standard than the federal standard will be put in place. He said industry is working with DEC on this issue. TAPE 94-44, SIDE B Number 000 MR. TREADWELL stated DEC has been told if they do not have certain things adopted in the National Toxic (indiscernible), they will have to defer to a tougher federal standard. Therefore, DEC went ahead and adopted some things. At the time DEC adopted them, they would have been illegal had HB 436 been applied to the water. He stressed the flexibility has been very helpful. REPRESENTATIVE JAMES asked if the situation in Valdez should have been dealt with by the legislature this year. MR. TREADWELL said that process is one where scientists were paid hundreds of thousands of dollars by each side, doing extensive studies making a very difficult determination of scientific health risk. If the process was tied to a legislative session, the 120 day rule and delayed for another year, there may have been further losses of state flexibility versus the federal government. He felt the legislature probably does not want to get into that level of detail. He pointed out that the legislature has passed laws authorizing a public process to go forward to review health risks and he added that public process works very well. He said the legislature has authority to tell DEC to get out of that business in Valdez and make a determination. He felt to do it with a law which says the legislature always wants to be doing that will be very difficult. He gave examples. He stressed DEC has not abused the flexibility. DEC asked the sponsor of HB 436 if there were any particular examples where DEC may have made mistakes and the sponsor could not give any examples. Number 055 REPRESENTATIVE GREEN clarified the Lieutenant Governor signed the air quality bill last week. MR. VERRELLI stated it was the state implementation plan, which is not the Title 5 process coming from HB 167. REPRESENTATIVE GREEN asked if that plan would be affected if HB 436 became law. MR. VERRELLI said the one thing which falls under the transportation control regulation package is the nonattainment areas of Anchorage and Fairbanks. If there is construction in that area, HB 436 will affect the plan because DEC will have to set limits lower than federal standards since it is a nonattainment area for carbon monoxide. REPRESENTATIVE GREEN clarified there are three pollutants very closely watched in nonattainment areas and asked what the risk is. MR. VERRELLI responded there have been seasonal changes in Anchorage and a haze has built up over the Seward Highway. He said that haze is (indiscernible) chemical smog. The smog usually occurs twice a year and gives an indication that the state is on the threshold because DEC does not control hydrocarbons, which is part of the ozone package. REPRESENTATIVE GREEN wondered if the state is working under the agreement from last year, would the state be more or less likely to not come under federal regulation with HB 436. MR. VERRELLI said that is a difficult question to answer because of the different considerations. He stated as an overall policy, the federal government likes to see a state taking the initiative to protect its citizens and is always supportive because sometimes federal laws are lagging. He noted the wood stove standards are a good example. Number 110 REPRESENTATIVE GREEN asked if HB 436 will have any adverse impact on getting available federal funding. MR. TREADWELL responded the Clean and Mitigate Air Quality funds are federal highway funds which have to be committed to mitigation of air quality problems. When DOT spends that money, they have to spend it in conjunction with a plan to improve air quality. DEC is in a bureaucratic never-never land currently with oxyfuels. The law says oxyfuels should be used yet they are not being used. DEC may have to defend that decision in court. MR. TREADWELL said just because DEC cannot be as stringent as the federal government does not mean DEC has to be as stupid as the federal government. Many times the federal government gives DEC dumb things to do. DEC oftentimes goes to the federal government and asks them to let the department manage for the desired result, rather than managing the way the federal government tells them to. He continued to discuss the issue. He cannot say the state will be limited from using federal funds. DEC has thought about using those funds in conjunction with local governments. However, asking DEC to work on a standard more stringent than the federal government will require a long and unnecessary delay for DEC if the HB 436 process is used. Number 159 RICK LAUBER, REPRESENTATIVE, PACIFIC SEAFOOD PROCESSORS ASSOCIATION (PSPA), stated PSPA has not taken a position on HB 436. He said PSPA participated, as an industry, on the task force which worked on HB 167. He pointed out that all major industries were invited to participate on that task force and most of them did. Out of that work came HB 167 which passed largely intact. He said the concept in HB 436 was discussed extensively by the committee but the majority of the committee felt this type of legislation was not needed. The task force felt there were times when there should be more strict regulations. Number 200 MR. LAUBER noted the task force realized that before DEC could impose more stringent regulations, there would be a review by industry, public, etc. HB 167 resulted from many compromises. He cautioned committee members that before they make any significant adjustments, they have the same type of process and review which was used to put HB 167 together. Number 221 CHAIRMAN WILLIAMS asked the sponsor if he had been asked by industry to sponsor HB 436. REPRESENTATIVE VEZEY stated the impetus of the bill came from a recommendation from the Governor's Task Force on Regulatory Reform. He said the general statement that state regulations should not exceed federal standards is very generic and broad based. He explained given the time restraints, this was the only area he had time to address because the subject matter of the clean air bill was still fresh in people's minds. He said there was no push by any individual nor was there any specific problem which instigated HB 436, but rather a general concern of many people in very broad terms. CHAIRMAN WILLIAMS stated since the House Resources Committee is the last committee to hear HB 436, it will be held for further consideration. ANNOUNCEMENTS CHAIRMAN WILLIAMS announced the committee will meet on Wednesday, March 30 at 8:15 a.m. to hear HB 515. ADJOURNMENT There being no further business to come before the House Resources Committee, Chairman Williams adjourned the meeting at 11:00 a.m.