Legislature(2019 - 2020)BARNES 124
04/01/2019 06:30 PM House RESOURCES
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| Audio | Topic |
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| Start | |
| Confirmation Hearing(s):|| Commissioner, Department of Environmental Conservation | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
ALASKA STATE LEGISLATURE
HOUSE RESOURCES STANDING COMMITTEE
April 1, 2019
6:32 p.m.
MEMBERS PRESENT
Representative Geran Tarr, Co-Chair
Representative Grier Hopkins, Vice Chair
Representative Sara Hannan
Representative Ivy Spohnholz
Representative Chris Tuck
Representative Dave Talerico
Representative George Rauscher
Representative Sara Rasmussen
MEMBERS ABSENT
Representative John Lincoln, Co-Chair
OTHER LEGISLATORS PRESENT
Representative Chuck Kopp
Representative Steve Thompson
Representative Sarah Vance
Representative Kelly Merrick
COMMITTEE CALENDAR
CONFIRMATION HEARING(S):
Commissioner, Department of Environmental Conservation
Jason Brune - Anchorage
- CONFIRMATION(S) ADVANCED
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
JASON BRUNE, Commissioner Designee
Department of Environmental Conservation
Juneau, Alaska
POSITION STATEMENT: Speaking as commissioner designee to the
Department of Environmental Conservation, answered questions.
ACTION NARRATIVE
6:32:01 PM
CO-CHAIR GERAN TARR called the House Resources Standing
Committee meeting to order at 6:32 p.m. Representatives Hannan,
Hopkins, Rasmussen, Rauscher, Talerico, Tuck, and Tarr were
present at the call to order. Representative Spohnholz arrived
as the meeting was in progress. Representatives Kopp, Thompson,
Vance, and Merrick were also present.
^CONFIRMATION HEARING(S):
^Commissioner, Department of Environmental Conservation
CONFIRMATION HEARING(S):
Commissioner, Department of Environmental Conservations
6:32:27 PM
CO-CHAIR TARR announced the only order of business would be the
confirmation hearing of Commissioner Designee Jason Brune,
Department of Environmental Conservation (DEC).
REPRESENTATIVE RASMUSSEN asked Commissioner Brune whether he
holds any financial interest in companies or industries overseen
by DEC and how he would use an unbiased approach in permitting
decisions related to companies with which he was previously
involved.
6:35:35 PM
JASON BRUNE, Commissioner Designee, DEC, said on [12/3/18] he
sold all of the stock he owned in any resource development
company doing business in Alaska. Further, his money is
invested in a blind trust for retirement. Turning to the
subject of conflict of interest, he said the DEC commissioner
has a responsibility to do no more or less than authorized by
the legislature, or by Congress, when authorization is delegated
to the commissioner by Congress. He said his job is to produce
science-based, legally defensible permits that will not be
challenged. The team at DEC is focused on science-based
permits, therefore, it is impossible for him to be biased.
REPRESENTATIVE HANNAN recalled Commissioner Brune's statement
that Alaska has an unstable permitting process, ranked behind
"the Congo" in the predictability of permitting. She advised in
Africa, projects do not advance without bribes, and asked which
aspects of Alaska's permitting process are unpredictable and
need reform.
COMMISSIONER BRUNE said he was repeating information from an
annual study by the Fraser Institute that reported on the
predictability of permitting in all mining regimes worldwide.
In geology, Alaska "ranks in the top five." For predictability
in its permitting regime, mining executives ranked Alaska behind
"the Congo." From his personal perspective, he said there have
been constant changes made by previous administrations.
Commissioner Brune said the state permitting regime should
follow certain steps - laid out by the legislature or Congress -
and grant permits based on the rules; the governor should
support the process so that companies can come and invest
without fear. He said he seeks to bring back predictability,
ensure due process for companies, and put the onus to prove a
project can be developed safely on the project proponent.
6:40:52 PM
REPRESENTATIVE HANNAN noted proposed legislation [SB 51, related
to the Clean Water Act's antidegradation regulation Tier 3 water
designation] would create a process finalized by the
legislature, which is a political entity. She asked whether
Commissioner Brune would support a Tier 3 water designation
based on a science-based process.
COMMISSIONER BRUNE said Alaska's process to designate Tier 3
waterbodies directs the legislature to vote on the designation.
He provided a brief background of the process and noted the goal
of SB 51 is to codify that the legislature has the final
decision on water use and land use designation. He advised
proposed SB 51, section B, requires that DEC, the Department of
Natural Resources, and the Alaska Department of Fish and Game
provide "science-based justification" for the Tier 3
designation. Furthermore, proposed SB 51 would codify
regulations and transfer powers from the executive branch to the
legislature.
REPRESENTATIVE HANNAN asked for Commissioner Brune's stance on
the restoration of the [Alaska Coastal Management Program
(ACMP)] and on other ballot measures that would affect Alaska's
permitting process.
COMMISSIONER BRUNE informed the committee in 2010 he
[represented the Resource Development Council (RDC)] and worked
on [failed] legislation to maintain ACMP. He said RDC probably
opposed the initiative to reinstate ACMP because RDC was
concerned that initiatives do not undergo a deliberative
legislative process. He said he worked to oppose "the cruise
ship initiative, the clean water initiative ... [and] the gas
reserves tax issue."
6:46:29 PM
REPRESENTATIVE SPOHNHOLZ asked Commissioner Brune to describe
the rules that are changing.
COMMISSIONER BRUNE said, in relation specifically to the Pebble
project, at the federal level there was concern by the mining
industry about [the Clean Water Act section 404(c)] proposal to
stop Pebble before its application was submitted, and federal
action to stop an Arch Coal project that had been permitted. At
the state level, the previous governor took a position in
opposition to a project on state land that was designated for
mining; further, the chief of staff for the previous
administration was an adamant Pebble opponent. This raised
concern that Pebble was not going to be treated fairly by the
previous administration. He opined there are certain areas of
the state that should never have mining, oil and gas, or other
development; however, the Pebble mine site was designated for
mining, and companies have made investments, so they should not
be stopped from participating in a fair permitting process.
REPRESENTATIVE SPOHNHOLZ questioned whether the aforementioned
Fraser Institute's study was based solely on a change in
administration.
COMMISSIONER BRUNE said he could not speak to the reason;
however, he opined the thought is "... it should not be a, an
executive decision that's made ...." He pointed out [the Fraser
Institute issued] a confidential study.
REPRESENTATIVE SPOHNHOLZ questioned the generalization that
Alaska's permitting structure is unstable due to a change of
governor. She surmised in the U.S., a change in administration
brings a mandate for an agenda, but Alaska's underlying
structure did not substantially change in the last four years.
6:51:01 PM
COMMISSIONER BRUNE referred to [Alaska Bristol Bay Mining Ban
Question, Ballot Measure 4, passed 11/4/14, known as Bristol Bay
Forever] that requires after a project has been permitted, the
legislature can make a final decision, which makes mining in
Bristol Bay a political process as well as a permitting process,
and sends a "very dangerous message."
REPRESENTATIVE HOPKINS reminded the speaker the aforementioned
ballot initiative was found unconstitutional by the Alaska
Supreme Court thus is no longer in effect. Furthermore, this
process was not a regulation change brought by the
administration or the legislature but was a process made
available to the citizens of Alaska by its state constitution.
He remarked:
If a resource company wants to hold the legislature in
Alaska responsible for our citizens being able to pass
an initiative every two years, so be it, but that's
not going to be changing with an administration or
not, that's going to be up to its people's will.
COMMISSIONER BRUNE restated the point of the Fraser Institute
study is related to the unpredictably of the permitting regime
regardless of its source.
6:54:25 PM
REPRESENTATIVE HOPKINS directed attention to Commissioner
Brune's perception on the influence of local voices and
governments to the permitting process. For example, a number of
communities throughout the region of the Donlin mine project
have urged the developers to use a dry stacking method to store
the tailings and thereby avoid storing tailings in a pond for
1,000 years. However, the economic viability of the mine would
be affected. He asked where the commissioner's priorities would
lie.
COMMISSIONER BRUNE acknowledged the value of local, Tribal,
village corporation, and regional corporation input is
incredibly important. However, when a permitting agency
reflects on a local community's participation in the workings of
a project, the local community's desires may not be consistent
with the best available technology or the best science. He said
it is important to "weigh" the community's input and to mitigate
local concerns as much as possible.
6:56:38 PM
REPRESENTATIVE HOPKINS expressed his understanding dry stacking
technology is currently in use in Alaska; he asked if a
technology is well-known and favored by local governments,
should Alaska require a developer to absorb additional costs and
comply.
COMMISSIONER BRUNE said investment decisions are made by
developers; he cautioned extra costs may mean projects leave the
state. He said he was unsure as to the best technology for the
Donlin project; however, if a company can meet permitting
requirements, it should have the opportunity [to advance its
project].
REPRESENTATIVE HOPKINS recalled the Pebble mine site was
designated for mining development in the '70s before it was
known the full Pebble deposit is nearly one mile deep. He
asked:
Why should we continue to maintain our same ideas
about what needs to happen on that land from an
agreement 50 years ago, when we didn't have the
technology and the facts then that we do now?
Shouldn't we be able to understand that when the facts
change our opinions should change as well?
COMMISSIONER BRUNE agreed one should not use 50-year-old
technology to build a mine today.
REPRESENTATIVE HOPKINS clarified his question is also directed
to what is known about the land and the possible effects of
aspects of a mine; for example, it is now known the mine will be
a hole 5,000 feet deep.
COMMISSIONER BRUNE cautioned against the possibility of the
state becoming liable for a [prohibition on taking property
without just compensation] claim. He urged for the best use of
technology, science, and strong regulation to ensure a safe
project; however, after an area has been designated for resource
development, and leases or claims are granted, if the state
prevents developers from following a federal or state permitting
process, that sends a very a dangerous message. He restated
companies should be required to meet very high standards at the
state and federal level.
7:01:07 PM
CO-CHAIR TARR observed Commissioner Brune speaks in favor of a
science-based policy but recalled the governor removed
references to climate change from "the website," and thus there
is evidence that leadership at the federal and state levels may
not be using science-based systems; in fact, although one may
believe permitting processes work independently of the
administration, that is not what is happening. She expressed
her concern about a certain project being fast-tracked on both
federal and state levels, which is a conflicting message with
the commissioner's statement.
COMMISSIONER BRUNE assured the committee his emphasis on science
is "spot on." He restated DEC can do no more and no less than
what it has authority to do through legislation. Further, DEC
is directed by regulation from the Clean Water Act and the Clean
Air Act, including the National Pollutant Discharge Elimination
System, by rulings that are specific to Alaska, but delegated by
the U.S. Environmental Protection Agency (EPA). Turning to the
Climate Action for Alaska Leadership Team, he advised there is
no delegation of authority from the legislature on climate
change, but said Alaska is impacted by climate change, no matter
the cause, and he gave examples. He said he and the governor
want to take action to mitigate the impacts of climate change.
REPRESENTATIVE RASMUSSEN asked for the commissioner's goals for
DEC.
7:06:06 PM
COMMISSIONER BRUNE said he is excited about working with good
scientists at DEC and those who are passionate about their work.
He said he retained all but one director from the prior
administration. Currently, DEC will focus on working with
industry to develop communities and resources, and to focus on
protecting human health and the environment, which is the
mission of DEC. He found many DEC employees did not have
current evaluations and now all do, and he emphasized the need
to develop employees, promote employees from within, and create
new opportunities.
REPRESENTATIVE SPOHNHOLZ expressed her ongoing concern that
budget downsizing at DEC has slowed water quality testing in
senior centers, and daycare centers, and that kitchens are not
being inspected in a timely manner.
COMMISSIONER BRUNE agreed restaurant and water-quality
inspections have decreased, although an emphasis has been placed
on areas of highest risk; DEC seeks to cross train "rainbow"
employees who can perform multiple tasks in rural communities
thereby fully utilizing travel funds. In addition, DEC proposes
to share flights to rural Alaska with the Department of Public
Safety. He suggested there can be local solutions; for example,
Anchorage has taken over DEC authority for restaurant
inspections and other communities may do so.
7:12:39 PM
REPRESENTATIVE SPOHNHOLZ inquired as to the date of the
aforementioned Fraser Institute report.
COMMISSIONER BRUNE said 2018.
REPRESENTATIVE SPOHNHOLZ related in 2016, the Fraser Institute
rated Alaska as the highest jurisdiction in the U.S. for mining
exploration and reported 75 percent of the time respondents
received permits within six months. She said she was curious as
to the circumstances of the change in rating.
COMMISSIONER BRUNE stressed Alaska needs the highest standards
in the world for development and the highest environmental
oversight; he said he was unsure of what affected the study.
REPRESENTATIVE TUCK recalled Commissioner Brune has identified
regulations that are unnecessary and asked for an example.
COMMISSIONER BRUNE explained the governor wishes to eliminate
unnecessary or duplicative regulation within all departments.
At DEC, regulatory reform will address contingency plans that
are so complicated they are unusable. He said DEC will work
with the environmental community and industry to improve
contingency plans.
7:17:17 PM
REPRESENTATIVE TUCK appreciated Commissioner Brune's science-
based focus, and he pointed out sufficient time is needed to
ensure for transparency and peer-review evaluations [of proposed
projects]. He related there have been concerns expressed
regarding the draft environmental impact statement (DEIS)
[issued 2/20/19 by the U.S. Army Corps of Engineers (USACE) on
the proposed Pebble Project] and asked whether USACE might have
made a mistake.
COMMISSIONER BRUNE said it is possible. He agreed science and
peer review are important; he observed industry's concern about
the Bristol Bay watershed assessment was that the peer review of
that process was insufficient. He said it is possible for a
federal agency to get something wrong.
CO-CHAIR TARR gave examples of statements made by Commissioner
Brune in social media in support of Pebble mine and relating to
the cost of doing business in Alaska. She said the cost of
doing business is irrelevant to the mission of DEC. Further,
although Commissioner Brune raised questions related to bias by
the previous executive branch in certain resource development
proposals, in the same manner, others have questioned
Commissioner Brune's objectivity in light of his previous work
history.
7:21:05 PM
COMMISSIONER BRUNE said at the time of his appointment he did
not delete his social media history in order to be transparent.
He reviewed his employment history with Anglo American, RDC, and
Cook Inlet Region, Incorporated (CIRI), and his service to the
Alaska Miners Association. While working in the private sector,
he supported "that project." As commissioner of DEC, he said
science must be the foundation for the decisions made by DEC; in
fact, a commissioner cannot unilaterally permit any project
without supporting documentation that will survive legal
challenges.
CO-CHAIR TARR read a quote that indicated Commissioner Brune
made a favorable decision about the Pebble project before it was
evaluated. She has heard from those who are troubled by that
statement.
COMMISSIONER BRUNE explained a commissioner needs "relevant
real-world experience" and that he brings experience from every
side. He restated his background as a representative of
industry, a biologist, in the private sector for a large mining
company, and for a regional Native corporation; therefore, he
has considered projects from different perspectives, which will
be an asset to DEC and the state.
7:26:23 PM
REPRESENTATIVE HOPKINS directed attention to the health and
economic concerns about air quality in Fairbanks. He asked for
the status of [the EPA grants] to address the [wood smoke fine
particulate matter (PM)2.5] issue and how to ensure the state
fulfills its responsibility to develop an effective improvement
plan that will be acceptable to EPA.
COMMISSIONER BRUNE said DEC has developed a Serious State
Implementation Plan (SIP) that will be released in early May
[2019]. There has been contact with the governor's office,
local stakeholders, the private sector, and throughout the
community of Fairbanks. He said he was frustrated by the [2018
citizen's initiative] passed in the Fairbanks North Star Borough
because he seeks local solutions for local problems; however,
DEC put together a plan that would not have a negative impact on
development, but would address the issue. He said progress has
been made by the local community to reduce burning on inversion
days; for example, although the PM2.5 attainment level is 35
[micrograms per cubic meter], PM2.5 levels have been reduced
from 150 to 60-65. No Other Adequate Source of Heat (NOASH)
waivers are issued for those who have no other options.
REPRESENTATIVE HOPKINS asked whether DEC will be in contact with
the Interior delegation in this regard.
COMMISSIONER BRUNE said yes, possibly on [4/16/19].
7:31:47 PM
REPRESENTATIVE KOPP inquired as to the background of former DEC
commissioner, Larry Hartig.
COMMISSIONER BRUNE said Mr. Hartig was on the board of RDC and
was a lawyer who represented Alyeska Pipeline Service Company,
the Red Dog mine, and other resource development companies. Mr.
Hartig was a well-respected commissioner; in fact, there is a
long history of DEC commissioners who have worked for industry.
7:33:27 PM
REPRESENTATIVE KOPP referred to issues, particularly in downtown
Anchorage, where businesses cannot make improvements to their
properties. Representative Kopp related businessowners feel DEC
regulations do not provide a solution to problems related to
contaminants on land that were not treated by previous owners.
He pointed out previous legislation has addressed this issue on
land owned by Alaska Native corporations.
7:35:29 PM
COMMISSIONER BRUNE explained [the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA)] requires
that a party in the chain of title to land is potentially a
responsible party even if there is no prior knowledge of
contaminants; in the case of Alaska Native Claims Settlement Act
(ANCSA) lands, he suggested DEC should provide indemnification
to developers to clean up ANCSA land instead of creating new
wetlands. He said this is an "outside of the box [idea]" that
may provide a way to get non ANCSA contaminated land cleaned up.
He said he would review the circumstances of properties in
downtown Anchorage.
REPRESENTATIVE HANNAN reviewed the implementation and purpose of
the Ocean Ranger Program, Division of Water, DEC, that was
created by ballot initiative and that operates at no cost to the
state. She pointed out the cruise ship industry brings 2
million visitors and crew to the Southeast region and residents
do not support the repeal of the Ocean Ranger program, without
additional oversight, due to a history of violations by the
industry. The cruise ship industry is not similar to other
industries because discharge permits normally are for facilities
located in a fixed location that are more easily reported. She
said she could not support repealing the program without a
replacement to assure safe and clean water in Southeast Alaska.
7:40:12 PM
COMMISSIONER BRUNE stated he will work for a better Ocean Ranger
program. He said there is technology that can monitor cruise
ships; he acknowledged the program was necessary when it began,
but it is not necessary now. Ocean Ranger program funds can be
used by DEC to develop technology that is more transparent to
the public; further, DEC can make inspections at any point. He
said there is no other industry that has [24 hours-per-day/7
days-per-week (24/7)] oversight and the state seeks to be fair
to industry. In addition, DEC holds the cruise ship industry to
higher standards for water quality than are required of Alaska
towns and cities.
REPRESENTATIVE SPOHNHOLZ returned to the issue of contaminated
land in Anchorage and noted, in addition to business owners,
residents are also affected.
REPRESENTATIVE TUCK pointed out the number of cruise ship
visitors continues to grow, and the Ocean Ranger program does
not hinder that growth. He agreed with Commissioner Brune's
recommendation to raise the standards of local communities. He
related the commissioner stressed that the designation of the
Pebble mine site was done 50 years ago, although there could be
new information. Earlier today, there was testimony that
information in [the DEIS issued by USACE on the proposed Pebble
Project] might have been hidden, omitted or was conflicting. He
asked Commissioner Brune how "red flags" raised about any
project should be handled.
7:46:31 PM
COMMISSIONER BRUNE, to response to Representative Tuck's comment
on the Ocean Ranger program, said cruise ship passengers pay $4
each for a program that is duplicative and unnecessary. He said
the state should be good stewards of others' money and should
use technology to improve the program if appropriate. In regard
to the Pebble project, at this time DEC is evaluating the USACE
permit application and will provide comments. When any project
submits a formal application, DEC will incorporate the best
science and technology available to formulate permits.
CO-CHAIR TARR reminded the committee prior to the Ocean Ranger
program cruise ships were dumping damaging chemicals, which made
oversight necessary. She turned to the subject of per- and
polyfluroralkyl substances (PFAS) and cautioned awaiting action
by the federal government could mean a delay of 20 years. For
example, there are chemicals that have never been evaluated for
impacts to human health or the environment, and new research
shows there are harmful effects to both. She opined the state
has the opportunity to prevent pollution in its drinking water
and should not wait for federal regulations related to PFAS
contamination.
7:51:43 PM
COMMISSIONER BRUNE agreed "if they're dumping in Alaska's water
that's grossly inappropriate ...." He said he met with the
executive director of Alaska Community Action on Toxins (ACAT),
heard her concerns about four pesticide chemicals identified by
ACAT, and referred her concerns to the regional administrator.
The state has released revised regulations for pesticide
application used to control invasive species, which requires a
quick response. He opined Alaska has taken the lead on PFAS
contamination by working with the Department of Transportation
and Public Facilities on a risk matrix to determine locations
where there may be contamination - from the use of firefighting
foam - and to identify areas where drinking water supplies may
have been affected. He listed the affected communities and
noted Kenai and Valdez [airports] have been tested and PFAS were
not found. For communities where PFAS or perfluorooctanoic acid
(PFOA) levels above 70 parts per trillion have been found, the
state is providing drinking water. The Federal Aviation
Administration (FAA), U.S. Department of Transportation,
requires the firefighting foam to be available at every
certified airport and also requires annual testing of the foam;
however, the commissioner of DOT&PF has stopped testing of the
foam. He said equally effective alternatives to aqueous film
forming foam (AFFF) need to be developed to prevent further
contamination. He reported EPA's evaluation of the foam will
not be a multiyear process and that he will be meeting with his
counterparts in other states on this issue.
7:57:39 PM
CO-CHAIR TARR urged for the state to take action and thereby
prompt a federal response.
COMMISSIONER BRUNE noted the state is the responsible party at
many airports in Alaska, therefore, addressing the needs of
affected communities is a high priority.
REPRESENTATIVE HOPKINS pointed out DEC needs to work in close
contact with local authorities and responsible parties, such as
volunteer fire departments in volunteer service areas.
COMMISSIONER BRUNE agreed and observed some industries also
maintain firefighting teams. He pointed out another emerging
aspect of the issue is how to dispose of contaminated soil; in
2016, DEC set a regulation limit of 400 parts per trillion and a
pilot project is underway to burn contaminated soil excavated at
Eielson Air Force Base.
REPRESENTATIVE TALERICO pointed out [mining] engineering is left
out in discussions; for example, when [the science of building a
dam] is discussed, also included should be aspects of
engineering such as compression, compaction, and the materials
used in building a dam. Further, his personal experience is
that graduates of the University of Alaska Fairbanks are
engineers who are knowledgeable about Alaska's environment.
COMMISSIONER BRUNE agreed and noted Alaska has engineering
marvels that have allowed for responsible resource development
in the state: the Trans-Alaska Pipeline System was engineered
to endure a major earthquake; new technology for tailings
facilities are specific to Alaska; Alaska utilizes engineering
to ensure concurrent reclamation during development projects.
8:08:10 PM
REPRESENTATIVE HOPKINS paraphrased from the following written
statement:
The House Resources Standing Committee has reviewed
the qualifications of the governor's appointee,
Department of Environmental Conservation designee
Jason Brune, and recommends the name be forwarded to a
joint session for consideration. This does not
reflect the intent by any of the members to vote for
or against this individual during any sessions for the
purposes of confirmation.
8:08:41 PM
ADJOURNMENT
There being no further business before the committee, the House
Resources Standing Committee meeting was adjourned at 8:08 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Brune Supporting Document - Letters of Opposition Combined 4.1.19.pdf |
HRES 4/1/2019 6:30:00 PM |
Commissioner Brune |
| Brune Supporting Document - Letters of Support Combined 4.1.19.pdf |
HRES 4/1/2019 6:30:00 PM |
Commissioner Brune |
| Jason Brune Resume.pdf |
HRES 3/15/2019 1:20:00 PM HRES 3/25/2019 6:30:00 PM HRES 4/1/2019 6:30:00 PM |
Brune Commissioner Brune |
| Brune Supporting Document - Letters of Support Set One 3.25.19.pdf |
HRES 3/25/2019 6:30:00 PM HRES 4/1/2019 6:30:00 PM |
Brune |
| Brune Supporting Document - Letters of Support Set Two 3.25.19.pdf |
HRES 3/25/2019 6:30:00 PM HRES 4/1/2019 6:30:00 PM |
Brune |
| Brune Supporting Document - Letters of Opposition Set One 3.25.19.pdf |
HRES 3/25/2019 6:30:00 PM HRES 4/1/2019 6:30:00 PM |
Brune |