Legislature(1995 - 1996)
03/29/1996 08:10 AM House RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE RESOURCES STANDING COMMITTEE
March 29, 1996
8:10 a.m.
MEMBERS PRESENT
Representative Joe Green, Co-Chairman
Representative William K. "Bill" Williams, Co-Chairman
Representative Scott Ogan, Vice Chairman
Representative Alan Austerman
Representative Ramona Barnes
Representative John Davies
Representative Pete Kott
Representative Don Long
MEMBERS ABSENT
Representative Irene Nicholia
COMMITTEE CALENDAR
CS FOR SENATE JOINT RESOLUTION NO. 39(RES)
Relating to the U.S. Environmental Protection Agency draft National
Pollutant Discharge Elimination System general permit for placer
mining in Alaska.
- MOVED SJR 39 (RES) OUT OF COMMITTEE
HOUSE BILL 342
"An Act relating to water quality."
- HEARD AND HELD
PREVIOUS ACTION
BILL: SJR 39
SHORT TITLE: EPA'S NPDES PERMIT FOR PLACER MINING
SPONSOR(S): RESOURCES
JRN-DATE JRN-PG ACTION
03/11/96 (S) RES AT 3:30 PM BUTROVICH ROOM 205
03/11/96 2686 (S) READ THE FIRST TIME - REFERRAL(S)
03/11/96 2686 (S) RESOURCES
03/11/96 2690 (S) RES WAIVED 5 DAY & PUB HRG NTC,RULE 23
03/12/96 2705 (S) RES RPT CS 4DP 1NR SAME TITLE
03/12/96 2705 (S) ZERO FISCAL NOTE TO SJR & CS (S.RES)
03/13/96 (S) RLS AT 11:00 AM FAHRENKAMP RM 203
03/13/96 (S) MINUTE(RLS)
03/14/96 2737 (S) RULES TO CALENDAR 3/14/96
03/14/96 2744 (S) READ THE SECOND TIME
03/14/96 2744 (S) RES CS ADOPTED UNAN CONSENT
03/14/96 2744 (S) ADVANCE TO THIRD READING FLD Y11 N7 E2
03/14/96 2745 (S) THIRD READING 3/18 CALENDAR
03/18/96 2784 (S) READ THE THIRD TIME CSSJR 39(RES)
03/18/96 2784 (S) PASSED Y16 N2 E2
03/18/96 2785 (S) Duncan NOTICE OF RECONSIDERATION
03/20/96 (H) RES AT 8:00 AM CAPITOL 124
03/20/96 2816 (S) RECONSIDERATION NOT TAKEN UP
03/20/96 2816 (S) TRANSMITTED TO (H)
03/21/96 3233 (H) READ THE FIRST TIME - REFERRAL(S)
03/21/96 3233 (H) RESOURCES
03/22/96 (H) RES AT 8:00 AM CAPITOL 124
03/29/96 (H) RES AT 8:00 AM CAPITOL 124
BILL: HB 342
SHORT TITLE: WATER QUALITY STANDARDS
SPONSOR(S): REPRESENTATIVE(S) ROKEBERG
JRN-DATE JRN-PG ACTION
05/09/95 2042 (H) READ THE FIRST TIME - REFERRAL(S)
05/09/95 2042 (H) O&G, RESOURCES
10/17/95 (H) O&G AT 1:00 PM ANCHORAGE LIO
10/17/95 (H) MINUTE(O&G)
02/13/96 (H) O&G AT 10:00 AM CAPITOL 124
02/13/96 (H) MINUTE(O&G)
02/20/96 (H) O&G AT 10:00 AM CAPITOL 124
02/20/96 (H) MINUTE(O&G)
03/21/96 (H) O&G AT 10:00 AM CAPITOL 124
03/22/96 3267 (H) O&G RPT CS(O&G) 1DP 3NR
03/22/96 3268 (H) DP: ROKEBERG
03/22/96 3268 (H) NR: G.DAVIS, B.DAVIS, WILLIAMS
03/22/96 3268 (H) 2 FISCAL NOTES (DEC, F&G)
03/22/96 3268 (H) REFERRED TO RESOURCES
03/27/96 (H) RES AT 8:00 AM CAPITOL 124
03/27/96 (H) MINUTE(RES)
03/29/96 (H) RES AT 8:00 AM CAPITOL 124
WITNESS REGISTER
REPRESENTATIVE NORMAN ROKEBERG
Alaska State Legislature
State Capitol, Room 110
Juneau, AK 99801
Telephone: (907) 465-4968
POSITION STATEMENT: Sponsor of HB 342.
MARILYN CROCKETT, Assistant Executive Director
Alaska Oil and Gas Association
121 West Fireweed, Suite 207
Anchorage, AK 99503
Telephone: (907) 272-1481
POSITION STATEMENT: Testified on CS HB 342.
SUSAN BRALEY, Section Chief
Water Quality Technical Services
Division of Air and Water Quality
Department of Environmental Conservation
440 Willoughby Avenue, Suite
Telephone: (907) 465-5308
POSITION STATEMENT: Testified on CS HB 342.
ROBERT F. McLEAN, Habitat Biologist
Habitat and Restoration Division
Alaska Department of Fish and Game
1500 College Road
Fairbanks, Alaska 99701
Telephone: (907) 459-7281
POSITION STATEMENT: Testified on CSHB 342
ACTION NARRATIVE
TAPE 96-44, SIDE A
Number 000
CO-CHAIRMAN JOE GREEN called the House Resources Committee meeting
to order at 8:10 a.m. Members present at the call to order were
Representatives Green, Williams, Ogan, Austerman, Kott and Long.
Representatives Barnes and Davies were late. Representative
Nicholia was absent. A quorum was present. This meeting was
teleconferenced to Anchorage.
SJR 39 - EPA'S NPDES PERMIT FOR PLACER MINING
CO-CHAIRMAN GREEN announced the calendar and the order of the
agenda beginning with CSSJR 39 (RES). He stated that CSSJR 39
(RES) was heard previously on March 22 and, unless there were
objections, he would entertain a motion to pass SJR 39 out of
committee.
Number 89
REPRESENTATIVE PETE KOTT moved that CS SJR 39 (RES) move from the
House Resources Committee with individual recommendations and
attached fiscal note. Hearing no objection, it was so ordered.
HB 342 - WATER QUALITY STANDARDS
CO-CHAIRMAN GREEN introduced witnesses on the teleconference
network while awaiting the arrival of the sponsor of HB 342.
Number 233
REPRESENTATIVE NORMAN ROKEBERG referred to the draft committee
substitute, CSHB 342, prepared by Marilyn Crockett, Alaska Oil and
Gas Association (AOGA). He said new information from the Resource
Development Council (RDC) was included. He said RDC,
fundamentally, supports the approach taken in the draft committee
substitute. He said Marilyn Crockett would explain CSHB 342 and
added that he, conceptually, likes the direction the bill is
taking.
Number 297
CO-CHAIRMAN GREEN asked Ms. Crockett if the proposed committee
substitute incorporated his previous concerns on page 1, lines 5
and 8 in CSHB 342, version C, "(b) The commissioner may not require
a higher discharge water quality standard for water used than the
existing quality of water received for the use." and a concern with
the "volumetric Imhoff Cone method."
Number 340
MARILYN CROCKETT, Assistant Executive Director, Alaska Oil and Gas
Association, was next to testify. She said the proposed language
in CSHB 342, "(b) Except for a waterbody included on an
Environmental Protection Agency (EPA) approved 303(d) Impaired
Waterbodies List, the commissioner may not require a more
restrictive water quality for discharged water than the existing
quality of the receiving water."
MS. CROCKETT said the Imhoff Cone method requirement is contained
within CSHB 342. She said another amendment proposed by AOGA would
require the use of EPA methods within the state and clarified that
there were two versions of the testing method subject matter.
Number 370
MS. CROCKETT said she manages AOGA's environmental committee and
acknowledged the draft language might appear overwhelming, but it
is language which has been tried and tested by both the state
administrative process and the legislature through the air program.
CO-CHAIRMAN GREEN interrupted to announce that the committee was
awaiting the arrival of Mr. McLean via offnet in Fairbanks.
Number 468
MS. CROCKETT referred to a document, titled, "Description of
Amendments to CSHB 342 proposed by the Alaska Oil and Gas
Association, dated March 27, 1996." She said Sections 1 and 2 are
identical, "what we have done in those two sections is to add a
provision at the beginning that said except for water quality
included on EPA approved 303(d) Impaired Waterbodies List, we
recognize the concerns that the Department of Environmental
Conservation (DEC) has identified, and others. Frankly, we had the
same concern that there were waterbodies in the state that had been
degraded for whatever reason, naturally or because of other impacts
that we are trying to clean up, would be included (indisc.) at the
beginning of these two sections and that the waterbodies included
in the 303(d) Impaired Waterbodies List are those waterbodies. In
those cases, discharges should be required to discharge a higher
water quality to that waterbody so that the waterbody can be
approved."
Number 551
MS. CROCKETT said other changes, to these two sections, take into
account concerns that the DEC has expressed on the possible misuse
of terms, such as "criteria" or "standard" and AOGA changed the
word "standard" in one section as a result.
MS. CROCKETT said that the rest of the backup, in Sections 1 and 2,
requires discharge to not be more restrictive than the existing
quality of the receiving water. She said it is this receiving
waterbody, the one receiving the discharge, which is the waterbody
of concern.
Number 627
REPRESENTATIVE JOHN DAVIES addressed DEC's concern about including
the reference to 303(d) Impaired Waterbodies List in CSHB 342. He
said the reason for the concern is that it makes whether or not a
waterbody is included on the list a contentious issue. He said,
currently, DEC has been able to work back and forth on the list and
whether or not a stream is or is not on this list has not been a
major issue. He said DEC is concerned that the inclusion into
statute will elevate those concerns to a possible source of
litigation.
Number 684
MS. CROCKETT answered that she had not heard that concern. "I
think that, obviously, the 303(d) and 305(b) Water Quality
Assessment Report has been a rather contentious issue since the
state started conducting that analysis in the late 1980s. The most
recent review that the state has done, the DEC did a very good job
of identifying waterbodies as being candidates for inclusion of the
303(d) list, they are taking a much closer look at criteria and the
data that they have on these waterbodies before they actually put
them on that list." She said she could not address the litigation
aspect, but said DEC has elevated the standard that they are now
using. She said before DEC puts a waterbody on the 303(D) list
hard data and good information should be provided to justify
listing that waterbody.
Number 753
CO-CHAIRMAN GREEN announced the arrival of Mr. McLean on the
network.
Number 790
MS. CROCKETT referred to Section 3, line 14, and said it addresses
the Imhoff Cone requirement. She said Section 3(b)n regards
measurement by EPA approved methods to determine compliance with
permit limitations. She added that the state should use EPA
methods for determining compliance in all cases because they have
gone through significant review and examination before they were
implemented.
Number 842
REPRESENTATIVE ALAN AUSTERMAN asked whether the EPA standards are
tougher than the state of Alaska standards.
Number 853
MS. CROCKETT said the state rules are consistent with the federal
rules to remain in compliance and said the state could not keep its
programs unless the rules were, at least, as stringent as the
federal requirements.
Number 876
ROBERT F. McLEAN, Habitat Biologist, Habitat and Restoration
Division, Alaska Department of Fish and Game, was next to testify.
He asked for clarification about the state moving toward a dissolve
parameter for toxins and metals. He said EPA's criteria is,
currently, totally accountable. He asked, to what extent would
putting this parameter in statute limit the state's ability to go
to a representative analysis of metals.
Number 911
REPRESENTATIVE ROKEBERG felt Mr. McLean was addressing the arsenic
situation and how that fits in with (indisc.).
Number 923
SUSAN BRALEY, Section Chief, Water Quality Technical Services,
Division of Air and Water Quality, Department of Environmental
Conservation, replied that she had just received CSHB 342 and had
not had the chance to look at it and fully assess the language to
see how it would fit with the DEC's statutes.
MS. BRALEY said that she was not sure how to answer Mr. McLean's
question at this time but she could check with DEC staff and
respond. "Right now, what we are doing with the water quality
standards, we are doing a lot of evaluation and a lot of research.
There was a question raised about total suspended solids and
whether we need a standard in Alaska. I do not believe that EPA
has a standard for suspended solids. They have monitoring
requirements but I do not believe that they have an actual
standard, but I would need to check with my technical staff. We do
not, at this time, our standard for sediment, in the water quality
standards, is a settleable solids method using the Imhoff Cone
method. During the Sierra Club Legal Defense Fund (SCLDF) petition
that was filed in January, they raised questions about whether the
state needed to have total suspended solids. They actually were
suggesting that we need to go back and make immediate changes to
the regulations to include total suspended solids."
Number 1054
MS. BRALEY informed, "What we committed to in August, when the
Governor's Office met with four representatives of both development
and environmental groups, we agreed to do a study and come out with
a report in July on the need for a total suspended solids criteria
and the other thing we are researching is the need for particulate
petroleum hydrocarbon criteria. Both of those studies have been
delegated to staff who have expertise in that particular area and
we are actively working on it now."
Number 1086
MS. BRALEY said, "I can't say, to answer Mac's question, whether or
not the language in the proposed committee substitute would
preclude us from coming up with a system that works better in
Alaska." She said she could not see any immediate problems with
having a statement that says, "we shall use methods approved by the
Environmental Protection Agency." She deferred to Ms. Crockett and
asked if that issue was directly related to the petroleum
hydrocarbon criteria and the methods that the DEC cited to be used.
Number 1125
MS. CROCKETT responded, "It is not directed, specifically, at that
but (indisc.) entire water quality regulations. We just believe
that there is no reason to spend a lot of time and effort
identifying other methods when we have EPA approved methods which
has gone through significant review and drill, if you will, that
would serve our (indisc.) use as well.
Number 1152
MS. CROCKETT said the language in CSHB 342 suggests that state
regulations be no more stringent and consistent with the federal
regulations. She said the language provides a mechanism for
situations where the state might want to have a more restrictive
standard or a standard that is not included in federal regulations.
She said these testing methods fall into the same caveat and cited
the example where the state identified a standard, that the federal
government did not have test for a sample. She said the language
in CSHB 342 would allow the state to do this as long as the state
went through a demonstration process.
MS. BRALEY said the DEC, currently, has this ability in the water
quality standards. She said DEC cites the standard methods for the
examination of water and waste water. She said, where applicable,
DEC has made specific recommendations on a particular method of
testing for that criteria.
CO-CHAIRMAN GREEN said if CSHB 342 specifies some tests and does
not specify other tests, he asked whether the state was in jeopardy
of possibly limiting the range of tests. He said if you have a
huge list of tests, sometimes the omission of one test leads to the
conclusion that the test is no longer admissible. He asked if
limiting the language, to be consistent with the federal government
regulations, would be the best choice in this situation.
Number 1262
MS. CROCKETT referred to the amended Section (a) which requires
that all of the methods, the state uses, be approved by the EPA.
She said this language would meet AOGA's concerns.
CO-CHAIR GREEN announced, for the record, that Representative
Davies and Co-Chair Williams joined the committee meeting for the
record a "while back."
REPRESENTATIVE DAVIES asked if Ms. Crockett would be resistant to
language covering a circumstance where the state had a standard,
which the EPA did not have, and DEC placed the rationale for using
the different standard in writing.
MS. CROCKETT said that language would be acceptable to AOGA and
suggested that it could be added to Section (f) which addresses the
situation where the state would want to adopt a more restrictive
standard or a standard which the federal government does not have.
Number 1345
REPRESENTATIVE ROKEBERG referred to testimony where there are some
standards where no "standard" exists for them.
CO-CHAIR GREEN said language could be inserted to avoid getting
into that problem.
Number 1373
MS. CROCKETT referred to page two, line four, and said the
amendments that were suggested for that section applies to lines 4
through 13. She said the first amendment reads, "except for a
water body that addresses the situation that we talked about a few
minutes ago with the two amendments on the previous page." She
said the rest of the changes, suggested for this section, alter the
terminology to make it consistent with the concerns raised by DEC.
She said AOGA also suggested paragraph two, and said this paragraph
is not necessary if the other proposed amendments are adopted. She
said there would not be a case where permit limits or standards
would be more restrictive than the applicable federal requirements,
except those that had gone through a demonstration process.
Number 1430
MS. BRALEY expressed concerns with carrying the EPA 303 (d) list in
the statutes. She said Section 303(d) of the Clean Water Act says
that the state must come up with a list of waters which currently
are not meeting water quality standards because the controls in
place are not cleaning up that water. The Section 303(d) then
requires, in regulation, that the state do a Total Maximum Daily
Load Allocation (TMDLA). She said the TMDLA is done on specific
water bodies.
Number 1548
MS. BRALEY said the EPA had a lofty goal, with the Clean Water Act,
of wanting all the waters in the nation cleaned up by the year
2000. She said the original EPA method to get there was through
the National Pollutant Discharge Elimination System (NPDES), a
permit program which requires any person that discharges into a
water of the United States to get a permit, unless the EPA deems it
unnecessary. She said the NPDES did a good job of issuing permits
and putting controls on industries, but the EPA found that waters
were not getting cleaner even with controls in place and a good
faith effort by industries to meet their permit.
MS. BRALEY said, as a result, Congress then created Section 303(d)
which said, in those situations where a water body wasn't meeting
water quality standards, even though permits and controls were in
place, a TMDLA method would be utilized. She said the EPA would
collectively look at the water body, all the industries within the
water body, and do a TMDLA for the possible pollutants being
discharged. She said, through the TMDLA process, the EPA would
allocate the amount of discharge pollutants each industry, within
an area, could discharge to allow the water body to improve. She
said Section 303(d) was originally a point source discharge
program, but since then EPA has realized that where a lot of
pollution is coming into the water, you have non-point source
discharge where there is run-off coming from roads, agriculture and
other land use activities. She said non-point discharge is not
easy to prevent.
MS. BRALEY said EPA took the Section 303(d) list and turned it into
a broad, undefined list. She said, for her, it has lost the
meaning of the TMDLA because there is not a concrete amount of
pollutants that can be discharged, because of undefined pollutant
sources. She said, in Region 10 EPA, states are required to submit
303(d) lists every two years. She said in 1992 and 1994, the state
of Alaska submitted a list of 39 water bodies that met the
definition of a 303(d) TMDLA. She said EPA was being sued, in
Idaho in 1994, by trustees or an environmental group which said
that the state of Idaho wasn't doing a good enough job of
developing the list of identified waters, which either had water
quality problems or were threatened by some impending development.
She said Idaho came out with a list of 150 water bodies, EPA,
because of the lawsuit, disapproved of the list and required Idaho
to go out and examine every water body which they had any kind of
information on. She said the result, of that process as well as
the result of the lawsuit, was that the Idaho list increased to 900
water bodies which incorporated the worst case scenario.
MS. BRALEY said the same situation happened in Washington and
Alaska. She said the EPA disapproved of the DEC's 303(d) list and
required the state go out and examine 130 water bodies. She said
the state had other lists of water bodies, but did not put them
into the 303(d) list because DEC did not feel they met the
criteria. She said, as a result of the public process which
included a year of working with EPA, DEC finalized a list in 1994
of 56 water bodies. She said this list means something different
to everyone she talks with. For the industry, getting a water on
the 303(d) list it means that they are not going to get to do what
you want to do. The perception by some environmental groups is
that once a water body is on the 303(d) list it does not allow
industry to do anything. She said she perceives it as a place
where there are problems which need to be addressed and the list is
a tool to use when working with industries, communities and land
use developers to get everything back on track.
Number 1835
MS. BRALEY said on Monday, April 1, 1996, DEC will be turning in
the 1996 303(d) list to EPA. She said she is trying to defuse all
the different perceptions regarding the 303(d) list. She said it
is important for DEC, the public and the industry to have the
303(d) list as it recognizes that there are problems being
addressed and said a problem was that once waters were on the list,
no water body was ever taken off the list. She said DEC received
guidance from EPA, in November of 1995, that if DEC had an approved
TMDLA, which the state of Alaska has changed to a Water Body
Recovery Plan, the state can put the water body on a tracking list
to monitor it. She said DEC is going to take those water bodies
off the list where there is evidence of improvement.
Number 1916
MS. BRALEY expressed concern regarding the language in CSHB 342 and
referred to the comment about the hard data which should be needed
to put a water body on the list. She said, quite frankly, in the
state of Alaska, we will always be data poor, we will never have
enough information to trully make a decision, for example, I think
you could turn that argument right around and say, when can you
pull something off the list if you are not quite sure that it is
meeting water quality standards." She said you can look at the
controls in place, whether DEC is working with the industry to
monitor them or to take them off the list. She said putting the
303(d) list in statute elevates it and potentially makes it broader
because, in some people's opinion, if a water body is not on the
list no one is going to pay attention to it. She said that
perception is not true and said a good system is being put into
place which would allow DEC to make improvements, track where
improvements are being made and make the 303(d) list work like it
should.
Number 1974
CO-CHAIR GREEN asked if glacier feed streams where selected to be
on the 303(d) list because of their natural turbidity.
MS. BRALEY said no streams were selected because of naturally
occurring conditions.
CO-CHAIR GREEN clarified that many streams had man-induced
sediments.
Number 2019
MS. BRALEY said his statement was true. She said one of the
criteria that DEC looks at, when a water body goes on the list, is
whether or not it is human induced. She said DEC has gone through
some deliberations regarding abandoned mining streams where EPA
feels that manganese is coming off a stream, caused by a mine that
was abandoned 40 years ago. She said this situation falls into a
grey area, because if there is reclamation that can be done because
the activity, which caused this mineralization, was human induced.
She said DEC carefully evaluates the situation to determine and
evaluate other streams in the area to see if manganese is naturally
occurring versus human induced.
Number 2055
MS. BRALEY said DEC had several streams that were identified in the
Anchorage area for fecal coliform which is an indicator that septic
systems are failing. She said DEC worked with the municipality of
Anchorage to look at where there were septic systems, in the
identified water bodies, which might have public sewage treatment
going through. She said it was determined that the fecal coliform
was caused by migrating water fowl and those identified water
bodies were taken off the list. She said there are still two water
bodies that are still on the list, because those water bodies have
more septic systems than another area. She said this is an example
where DEC is not including a water body if the pollutant is
naturally occurring.
Number 2107
CO-CHAIR GREEN said the name change to Water Body Recovery Plan
indicates that something needs to be fixed rather than a water body
that needs to be watched. He asked if there was a name that was
perhaps more "user friendly."
Number 2123
MS. BRALEY said DEC was open to suggestions regarding this name.
She said there is baseline criteria which is used to develop a
Water Body Recovery Plan. She said Hammer's Slough in Petersburg
had been identified as an area of concern by the EPA, due to a
complaint by a staff person from the DFG. The staff had noticed
sediment coming into the creek from the airport. She said DEC did
a field study, met with the DFG and the city manager. She said DEC
determined that there was some sediment washing off of an area
where timber harvesting had occurred. She said three things were
identified which could be done to prevent this sediment and said
after two days, DEC left with what they felt was a good Water Body
Recovery Plan after receiving commitments from both the city and
from the DFG. She said DEC will track this situation this summer
and will visit the site at the end of the summer.
Number 2198
MS. BRALEY referred to another Water Body Recovery Plan on Birch
Creek out of Fairbanks which has taken several months. She agreed
that DEC needs to show the steps that are done to formulate a Water
Body Recovery Plan. She said with some water bodies you might stop
at step one and with others you might need to go down to the tenth
step.
CO-CHAIR GREEN suggested changing the name to Water Quality Control
Plan.
REPRESENTATIVE DON LONG referred to the original listing of 30
water bodies which was revised to 110 water bodies.
Number 2231
MS. BRALEY said DEC had a list of suspect water bodies where
someone had given DEC information that there might be a problem
regarding them. She said DEC also had a list of impaired water
bodies where DEC sees water quality problems but doesn't think
there need to be any additional controls as it might relate to an
enforcement issue. She said EPA required that DEC come out to the
public with a much broader list to give them the opportunity to
comment on waters that the public might not have otherwise seen.
She said the public comment on those 130 water bodies derived a
list of 56 water bodies.
Number 2289
MS. CROCKETT questioned the use of the EPA approved 303(d) Impaired
Water Bodies List. She said AOGA's interest is to make sure that
there is a provision for a qualifier, contained within CSHB 342,
which recognizes that there are water bodies which could not take
the additional load from discharges and that a more restrictive
standard needs to be in place for those water bodies to bring it
back up to par. She said another interest of AOGA is that there is
not an inclusion of a phrase, which gives the opportunity to impose
stricter limits, if there is a thought that the water body might be
impaired. She said there should be some standard, justification or
measurement for having a water body in that category and said it
should not be in that category because someone suspects that there
is a problem there. She said language should be found which makes
sense and doesn't perhaps raise the deterrents but has some
technical justifications for it.
Number 2347
MS. BRALEY said the original intent of HB 342, on her reading, was
that the state did not want to force water quality standards on a
stream which has a pollutant but the discharge is naturally
occurring rather than human induced pollution. She cited Red Dog
Creek as being the prime example where you have natural ore body
water washing out into a stream.
Number 2386
MS. BRALEY said she appreciated the changes submitted by AOGA
regarding the language that the commissioner might not offer more
restrictive water quality for discharged water than the existing
quality of the receiving water. She suggested changing the
language from "existing" to "natural quality" in order to get away
from what the state does not want. She said DEC is in wholehearted
agreement that they don't want to prevent a glacier from putting
sediment into a stream or a river. She said the intent at DEC is
that human activities and industrial discharges are not putting
human induced pollution into a stream that is not naturally caused.
Number 2431
REPRESENTATIVE ROKEBERG referred to the CSHB 342 (O&G) and said the
language there had no consideration for receiving water if it had
been substantially polluted. He suggested that a standard be
found.
TAPE 96-44, SIDE B
Number 0000
REPRESENTATIVE ROKEBERG said there seemed to be a problem because
the words being used had certain meanings by the people in the
field.
Number 0037
MS. BRALEY said EPA told the DEC that they would disapprove their
regulations if they did not include an anti-degradation policy.
She said the anti-degradation policy requires states to allow
pollution to occur right down to the edge of what the water is
going to be able to handle. She said the policy says, in part, is
that water with natural characteristics of higher quality than the
water quality criteria must be kept within the existing quality and
includes a provision of an applicant coming in with a particular
variance. She said, basically, EPA recognized that the state has
waters of high quality and they should not be degraded down to the
point where they are still meeting water quality standards, but are
no longer in pristine condition. She said the state would probably
have conflicts with the federal requirement and state regulation,
which was put in because of the EPA and the Clean Water Act
required it, regarding this high quality waters which needed to be
considered. She said a perception that the 303(d) list of waters
is the only thing that is going to be considered is inaccurate.
Number 0142
MS. CROCKETT said she was familiar with the anti-degradation policy
and that it was adopted by DEC September of 1995 and became
effective under the Alaska regulations on March 15, 1996. She said
AOGA would not have any concern with changing the two existing
references from "existing" to "natural" and said that was the
initial intent of the language.
Number 0173
REPRESENTATIVE ROKEBERG said the Mining Association recommended the
insertion of "natural" into CSHB 342. He asked for information
regarding the Congressional reappeal of the anti-degradation
policy.
Number 0225
MS. BRALEY said nothing is concrete regarding this change, but
there have been rumors regarding this and another rumor regarding
a change in the arsenic standard. In the January of 1995
regulations, DEC included two provisions in the anti-degradation
policy. She said DEC did not include the third provision,
regarding the Outstanding Natural Resource Waters (ONRW), in the
regulations. She said the reason DEC did not add this provision at
the time was because the Department questioned how an Outstanding
Natural Resource Water would be determined and what would be the
significance of doing so. She said EPA was insistent that if DEC
did not include this third provision they would be in violation of
the Clean Water Act. She said it was this third provision that
came into effect in March of 1996.
Number 0256
CO-CHAIR GREEN referred to a situation which occurred in California
regarding natural seeps and asked how the DEC would compile data to
determine whether or not it was natural and then questioned the
expense.
Number 0303
MS. BRALEY said this situation identifies a gray area where DEC has
to work on a case by case basis with the particular water body or
industry in question.
Number 0313
CO-CHAIR BILL WILLIAMS asked for information on the anti-
degradation policy.
Number 0344
MS. BRALEY referred to a handout title, "The Alaska Water Quality
Standards 18 AAC 70," and apologized for bringing the January 4,
1995 regulation as it does not include the March 15, 1996 anti-
degradation clause. She referred to page two, subsection (c), and
said it explains the anti-degradation policy.
CO-CHAIR WILLIAMS said Ketchikan Pulp is made to discharge pristine
water and asked if this section of the water quality standards
addressed this particular concern.
Number 0393
MS. BRALEY said the anti-degradation policy has some steps to
determine that clause and said that the scenario mentioned did not
appear to fit the situations that the anti-degradation policy would
address. She said the anti-degradation policy addresses the water
body that the discharge is going in to. She said, regarding the
Ketchikan Pulp Company, the discharge the mill puts out, through
their process and the chemicals that they use, is considered a
toxic pollutant. She said a portion of this water is not allowed
to be released and it is this portion that causes the most concern.
MS. BRALEY said despite the fact that the water the Ketchikan Pulp
took in might not have been pure because of turbidity, sediment or
color the company is still putting more pollutants into that water
and then discharging a different type of human induced pollutant.
Number 0504
MS. CROCKETT resumed her overview of CSHB 342. She referred to
page two, line 14, subparagraph (d), and said it requires DEC to
review the state water quality standards and requirements to insure
that they are consistent with the federal standards within 12
months to the date of enactment of CSHB 342. She said subparagraph
(e) requires DEC to amend the state regulations within 12 months of
any amended federal regulations so, if the federal standards were
changed or decreased, the state would have 12 months to amend its
regulations to bring it into a consistent format with the federal
requirements.
Number 0563
MS. BRALEY said all states are required, every three years, to do
a triennial review of their regulations under the Clean Water Act.
She said the purpose of this review is to look at the state and
federal regulations that have been promulgated and then have the
state determine whether the new federal regulations are appropriate
and which things should be put out for public review. She said
many new regulations are promulgated and the reason for the
triennial review is that the federal government realizes that every
now and then the process must stop in order for the states to
realize what has been occurring.
Number 0630
CO-CHAIR GREEN expressed concern over having to wait for a three
year evaluation.
Number 0657
MS. CROCKETT said an alternative to the language might be to say
"as of January 1, of every year DEC will amend its regulations to
be consistent with the EPA regulations that were effect as of
January 1." She said this language might allow a yearly review.
Number 0710
MS. CROCKETT referred to paragraph (f) and said it allows the state
to adopt standards and methods that would be more restrictive than
the federal requirements or for situations where there is no
corresponding federal requirements, if the state went through a
demonstration process. She said the rest of CSHB 342 is taken from
AS 46.14, the Title 5 Air Legislation. She said the only changes
to this language is to change "air" to "water" and to eliminate the
provisions within the air statute that are air related. She said
the air statute was developed in draft form by the air quality
legislative working group which had representatives from the
environmental community, the oil and gas industry, other
industries, municipalities and DEC. She said this air legislation
was presented to and passed from the legislature three years ago.
She said this is a tried and true process which requires a
demonstration of the need for the more restrictive standard through
peer review and DEC findings on why those more restrictive
standards are appropriate for the state.
Number 0777
CO-CHAIR GREEN asked if this was a process rather than a particular
pollutant.
MS. BRALEY said that language is "probably not a bad idea."
Number 0791
REPRESENTATIVE ROKEBERG said this would be an excellent way to
accomplish something that the state wants to do in a way that
provides more flexibility and a higher standard if the facts
warrant that higher standard.
Number 0806
REPRESENTATIVE DAVIES questioned the demonstration project as to
what it required and also what is accomplished.
Number 0840
MS. CROCKETT referred to page three, line 25, and said the
demonstration would require that the state to apply an exposure
profile and hydrological conditions or the discharge
characteristics require a more restrictive standard in order to
protect (indiscernible) the environment. She said this
demonstration requires technological feasibility and a written
analysis of the economic feasibility of the proposal. She said it
goes on to require that the proposed standard go through a peer
review process with three independent consultants, retained by the
state, who would have no financial or personal interest in the
proposal. She said all of these prepared documents would be
brought before the public along with the proposed rule for comment
before it would be adopted by the state. She said this process is
not directed towards a particular water body, but towards a water
quality standard or method.
Number 0888
MS. BRALEY said she was not familiar with the air program, but said
she would talk with the director to find out if this process works
and if it is effective. She asked if this process is just for
those regulations where the state might want to be more restrictive
and not for all the regulations.
Number 0915
MS. CROCKETT said this process would apply to two situations;
standards that the state would like to have that are more
restrictive than the federal standards and standards that the state
would like to have that are not addressed by EPA standards.
CO-CHAIR GREEN clarified that all other regulations would be
comparable to the federal regulations.
Number 0939
MS. BRALEY referred to the language, "consistent with or not more
restrictive" and said DEC did not want to be in a position of
having to adopt or be consistent with the federal government if DEC
determined that the federal guidelines do not fit the state of
Alaska. She said arsenic is the best example as there is so much
naturally occurring arsenic in the state, a situation which is
sometimes hard for the federal government to understand. She
encouraged the committee to think about this example and the fact
that when she reads, "consistent with," she assumes that the state
adopts what the federal government requires.
Number 1000
MS. BRALEY said DEC has adopted 6,000 pages of federal registers
that are all EPA criteria, most narrative and some numbers. She
said DEC is following the federal guidelines to the degree the DEC
feels it needs to be in statute. She said the state needs to give
itself some flexibility to not be consistent with the federal
government.
Number 1019
REPRESENTATIVE AUSTERMAN expressed concern over the fact that the
state would have more restrictive standards than the EPA standards,
especially when some of the EPA standards are higher than the
public wants.
CO-CHAIR GREEN said it depends on the particular pollutant.
Number 1093
MS. BRALEY said there might be circumstances in Alaska that meet
the criteria that Ms. Crockett mentioned and said this situation
might be something that is not recognized under federal
regulations. She said this substance might cause a pollution
problem which becomes a health issue where the state has strong
concerns. She said this is an example where the state might want
to have a higher criteria than the federal government.
Number 1137
MS. BRALEY said the state set their human health criteria risk
level at ten to the minus five, yet the state must fall back to
national defaults. She said the national default fish consumption
rate is something like 4.5 pounds per year. She said one of the
strong arguments raised, from throughout the state, is that the
state in compiling their human health criteria number was using a
national default number that was lower than what was true for the
state. She said this might not be the best example, but it is an
example where we, as a state, want to be stricter on something that
has been set at the national standards.
Number 1160
MS. BRALEY said there could be circumstances where the federal
government does not consider it important to the nation as a whole,
but it is a circumstance of which Alaska has concerns.
Number 1196
REPRESENTATIVE DAVIES said that this language identifies the
exceptional case which would have other language attached to it.
He said it, would more likely, be a case where EPA does not have a
standards at all.
Number 1247
REPRESENTATIVE BARNES referred to the Anchorage discharge water
and said her understanding (indiscernible due to coughing) and may
have happened more than once, but the water that Anchorage
discharged was cleaner and the municipality had to make the water
more dirty before the municipality could discharge that water. She
asked if this situation occurred because of a state or a federal
standard.
MS. BRALEY said she was not familiar with the circumstance
described. She said, because of her position, she touches on some
of these issues that are being dealt with in the field offices of
DEC. She said the issue with the municipality, as she understood
it, had to do with a natural occurrence regarding arsenic. She
said the municipality had to take arsenic out of the water, even
though the source they were getting it from had naturally occurring
arsenic.
Number 1291
REPRESENTATIVE ROKEBERG said the mayor had to introduce tailings
from a fish processing plant in Anchorage in order to meet the
effluent discharge standard.
Number 1304
MS. BRALEY said she would follow up on this situation although she
said she could not speak for what had happened. She said what is
ridiculous and unreasonable is not a part of what DEC should be
doing.
Number 1338
CO-CHAIR WILLIAMS said one of the problems industry has is when the
state standard is higher than the EPA standards. He asked if DEC
had a problem with the peer review language that was suggested.
Number 1374
MS. BRALEY said she thought "peer review" would need to be defined
in the language to insure objectivity. She said she would support
a peer review process which got down to the involved issues rather
than political issues. She said a failing of DEC in the past is
that well-intended staff have not made the effort to get all the
information to make a determination. In some cases, decisions have
been made without all the available information. She said the
bottom line of CSHB 342 is that these regulations are technical,
complex and extremely important to the state, but that the state
cannot be operating in a vacuum and concluded that she would
support a peer review process that was not "politically
identified."
Number 1508
CO-CHAIR GREEN referred to several points in the language of CSHB
342 which needed to be clarified including the 303(d) situation in
Sections 1 and 2, the more or less restrictive issue, the 12 month
versus a three year review of federal changes issue, the concern
about specific cases where the state might want to be above or
below the federal standard, as well as looking at the sewage
effluent discharge in Anchorage and coming up with a definition of
peer review.
Number 1578
REPRESENTATIVE DAVIES said there was also the issue of "existing"
versus "natural."
Number 1597
REPRESENTATIVE ROKEBERG said CSHB 342 might want to include
language regarding a lower standard in the state.
Number 1651
MS. CROCKETT concurred that language would not want to be included
which would do anything inadvertently that would not allow the
state to do something that was less restrictive than the federal
government.
CO-CHAIR GREEN asked that DEC, AOGA and the sponsor review these
points to clarify them over the weekend to resolve them by Monday
morning.
Number 1692
REPRESENTATIVE DAVIES said another issue involved the EPA approved
methods, specifically found on page one, line 17. He said language
could be included that such a method exists first and secondly that
if the state placed in writing a reason for deviating from that
standard.
REPRESENTATIVE ROKEBERG asked Representative Davies to help him on
this point.
Number 1755
ROBERT F. McLEAN, Habitat Biologist, Habitat and Restoration
Division, Department of Fish and Game, testified via teleconference
from Fairbanks. He referred to Section 1 of CSHB 342, and said
given that the DFG does not condition its permits with numerical
and (indiscernible) limitations. He said, in the permitting
process water quality issues are deferred to DEC. He asked what
CSHB 342 was trying to address in terms of the DFG permitting
program.
CO-CHAIR GREEN clarified that CSHB 342 addresses water quality
rather than "critters."
MR. McLEAN said Section 1 includes the provision that would relate
to DFG and asked what was trying to be addressed in this section.
Number 1867
REPRESENTATIVE ROKEBERG said CSHB 342 attempts to have all the
Departments in the Administration consistent in the application of
the statute and policy in a coordinated manner.
ADJOURNMENT
There being no further business to come before the House Standing
Committee on Resources the meeting was adjourned at 9:37 a.m.
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