Legislature(2015 - 2016)BELTZ 105 (TSBldg)
01/28/2016 09:00 AM Senate ADMINISTRATIVE REGULATION REVIEW
| Audio | Topic |
|---|---|
| Start | |
| Department of Environmental Conservation Proposed Cleanup Level Amendments for 18 Aac 75 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
ALASKA STATE LEGISLATURE
ADMINISTRATIVE REGULATION REVIEW COMMITTEE
January 28, 2016
9:03 a.m.
MEMBERS PRESENT
Representative Jim Colver, Vice Chair
Senator Mia Costello
Senator Berta Gardner
Representative Mike Hawker
Representative Adam Wool
MEMBERS ABSENT
Senator Lesil McGuire, Chair
COMMITTEE CALENDAR
DEPARTMENT OF ENVIRONMENTAL CONSERVATION PROPOSED CLEANUP LEVEL
AMENDMENTS FOR 18 AAC 75
- HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
KRISTIN RYAN, Director
Division of Spill Prevention and Response
Department of Environmental Conservation (DEC)
Anchorage, Alaska
POSITION STATEMENT: Discussed the proposed cleanup level
amendments for 18 AAC 75.
RALPH HULBERT, representing himself
AlasChem Engineering
Palmer, Alaska
POSITION STATEMENT: Commented on the proposed cleanup level
amendments for 18 AAC 75.
LARRY ACOMB, Environmental Consultant
Geosphere, Inc.
Anchorage, Alaska
POSITION STATEMENT: Commented on the proposed cleanup level
amendments for 18 AAC 75.
ACTION NARRATIVE
9:03:51 AM
VICE CHAIR JIM COLVER called the Administrative Regulation
Review Committee meeting to order at 9:03 a.m. Present at the
call to order were Senators Costello and Gardner and
Representatives Wool and Vice Chair Colver.
^Department of Environmental Conservation Proposed Cleanup Level
Amendments for 18 AAC 75
Department of Environmental Conservation Proposed Cleanup Level
Amendments for 18 AAC 75
9:04:49 AM
VICE CHAIR COLVER announced the committee would hear a review of
the Department of Environmental Conservation (DEC) proposed
cleanup level amendments for 18 AAC 75. Because the proposed
regulations have generated such concern from experts, the
purpose of the hearing is to shine a light on their relevance
and necessity, he said.
9:05:38 AM
REPRESENTATIVE HAWKER joined the committee.
9:06:03 AM
KRISTIN RYAN, Director, Division of Spill Prevention and
Response, Department of Environmental Conservation (DEC), stated
that the division is responsible for the immediate response to a
spill and oversight of long-term mitigation. The Contaminated
Sites Program oversees long-term cleanup of contaminant
releases, but has not updated the regulations for quite some
time. What the committee is interested in today, she said, are
the updates to one of the tables in the proposed regulations
regarding cleanup levels for soil and groundwater and how they
are calculated for contaminated sites. She emphasized that the
new numbers are based on new science.
She explained that the division held three public workshops to
discuss the proposed changes; one was teleconferenced, one was
held in Anchorage, and one was held in Fairbanks. She described
the regulations for contaminated sites as a cafeteria plan with
a variety of options available to a responsible party who has a
contamination release. The table under discussion today is one
option that is similar to a general permit. It's a one-size-
fits-all approach and is meant to protect human health in all
situations. A second option available to a responsible party is
a more customized cleanup process. She noted that the division
has been updating the manuals and calculators to simplify the
customized process. She assured the committee that there are
multiple options available to a responsible party to determine
the best and most cost-effective way to clean up contamination
that has occurred.
MS. RYAN related that the division received quite a few comments
on the proposed regulations and is now in a deliberative process
deciding how to accommodate the articulated concerns before the
regulation package is finalized and adopted. She emphasized that
the decisions about the proposed contaminant levels are based on
the best science available about the risks associated with the
different contaminants. The driving focus in the proposed new
levels is to do no harm to human health. She offered to answer
questions.
9:11:25 AM
SENATOR COSTELLO asked what statute provides DEC the authority
to make these regulatory changes.
MS. RYAN said she would follow up with the specific statute.
REPRESENTATIVE WOOL asked if the table includes just the new
requirements.
MS. RYAN explained that the table was repealed and readopted.
Returning to Senator Costello's question, she advised that AS
46.09.020 gives the department broad authority to develop
guidelines for setting up cleanup of hazardous substances.
REPRESENTATIVE WOOL expressed interest in a side-by-side
comparison of the old and new contamination numbers.
MS. RYAN agreed to provide a comparison.
VICE CHAIR COLVER asked if DEC is adopting more stringent
standards than the U.S. Environmental Protection Agency (EPA)
for arsenic in groundwater.
MS. RYAN answered yes; the proposed standard is higher than what
public water systems have to meet for water that comes out of
the tap. The standard for public drinking water systems
considers many different factors, including the ability for the
water system to treat the water. The levels DEC is obligated to
establish are for groundwater, which can be used for a variety
of things. She clarified that the proposed regulations do not
change the requirements for arsenic removal for drinking water
systems in the state. The proposed regulations establish the
cleanup level a responsible party is expected to achieve when
they have released arsenic into the environment.
MS. RYAN said the division is trying to decide how to address
the concerns that the Table reflects a level for arsenic that is
lower than the background level for a lot of the state, while
also recognizing that that number is best known to be protective
of human health and the environment. That being said, she
assured members that DEC does not expect a responsible party to
cleanup a contaminated site to more than the background level in
the particular site.
VICE CHAIR COLVER asked if DEC would be flexible in enforcing
these regulations based on the existence or absence of baseline
data on the levels of naturally occurring arsenic in soil and
groundwater.
MS. RYAN answered yes, but the expectation is that a responsible
party will need to collect samples to prove that they did not
contribute more arsenic to the environment than existed
previously. She advised that just 100 sites in the state have
been identified as having arsenic as a contaminate of concern.
She also noted that DEC has a lot of background information
about arsenic, particularly around military bases, and is able
to utilize that information for nearby sites.
9:20:37 AM
SENATOR COSTELLO read AS 46.09.020 and commented that it appears
as though there is a conversation between the entity doing the
cleanup and the department, but it isn't clear that the section
actually provides the authority to make the regulatory changes.
MS. RYAN replied their statutory authority is mingled with the
statute on spills, and is based on immediate response. The
statute relating to longer term remediation was added later. She
confirmed that DEC does have a conversation at most sites about
what and how much the responsible party is expected to clean up,
but there's a lot of give and take weighing what is good for the
community and the environment. Often they establish
institutional controls which allows the contamination to stay in
the ground if it is determined to be unfeasible or uneconomical
to remove.
9:24:18 AM
VICE CHAIR COLVER opened public testimony.
9:24:29 AM
RALPH HULBERT, representing himself, AlasChem Engineering, said
everybody that commented on the proposed arsenic levels being
below the background levels should understand that arsenic in
the groundwater has to do with the historic groundwater
chemistry, not surface arsenic. He opined that this is more
complex than what the CSP has in any of its guidance. He pointed
out that the CSP for arsenic describes altered or disturbed
areas that may contain naturally occurring arsenic, but it's not
possible to prove that something was added. He also commented on
the problems with the proposed chromium levels, the limits on
polycyclic aromatic hydrocarbons, and the problems associated
with the proposed cleanup levels of volatiles. He concluded his
comments suggesting that a valid and robust risk management
policy is needed.
9:31:52 AM
VICE CHAIR COLVER asked what the proposed regulations will mean
in the field.
MR. HULBERT replied a lot of time and money will be spent lining
up to talk to DEC.
VICE CHAIR COLVER asked if it's fair to say that the additional
DEC staff proposed to interface with the business community will
drive up costs for the state.
MR. HULBERT replied globally yes but individually no, because
DEC has a policy to bill everybody for their conversations.
VICE CHAIR COLVER asked what the impact will be if these
regulations are adopted.
MR. HULBERT opined that the aggressive remediation that DEC
seems to prefer will most likely cause more human health risks
than they will solve.
9:35:59 AM
SENATOR COSTELLO asked Ms. Ryan if the department charges for
the time it spends talking to the party it is working with.
MS. RYAN answered yes; the division is statutorily required to
recover all costs.
SENATOR COSTELLO asked if that includes conversations on the
telephone and in person.
MS. RYAN replied DEC doesn't bill for telephone conversations,
but the clock generally is turned on when they go out to a site
and have more lengthy conversations.
SENATOR COSTELLO cited the statute and asked if the responsible
party is charged if the state takes over the remediation.
MS. RYAN said that is correct, but that statute was intended for
spill response and the need for an immediate response to limit
the risk to the environment. She didn't recall that being done
on a contaminated site.
REPRESENTATIVE WOOL asked if she said that the arsenic level in
the table reflects the level for drinking water.
MS. RYAN replied the table does not reflect drinking water. It
reflects ground water, which can be used for drinking water or
any other activity.
SENATOR GARDNER asked her to speak to the risk to humans
associated with the cleanup of arsenic as opposed to leaving the
arsenic in the ground. She noted that insurance requirements are
perhaps reflecting the high risks associated with exposure.
MS. RYAN said any kind of cleanup has to be done by a contractor
who knows how to control the risks to ensure that individuals
aren't exposed to unsafe levels of a contaminant. Every site is
different, but DEC oftentimes allows the contaminant to stay
where it is and naturally attenuate. Cleanup is required in
situations where the public might be exposed.
9:42:50 AM
LARRY ACOMB, Environmental Consultant, Geosphere, Inc., said he
typically works as a subcontractor to larger consulting firms
and the responsible party generally is the federal government or
a large oil company.
He said the technical issues with the proposed regulations are
well documented and should be used as a starting point to
continue the revision of the regulations. He stressed that DEC
should not try to promulgate the regulations without going back
out for public comment and without working with the
environmental professionals in the community to solve the
problems with the current regulation package. He cited the
example of the use of the Andelman equation in some of the
calculations of drinking water cleanup levels.
MR. ACOMB said Ms. Ryan indicated that there are alternate
options for calculating cleanup levels, but DEC doesn't offer an
alternative to the Andelman equation that's used to calculate
Table C groundwater cleanup levels. The ramification of that
ripples throughout the rest of the regulations, he said.
VICE CHAIR COLVER asked him to expand on the last statement.
MR. ACOMB explained that the EPA uses the relatively
conservative Andelman equation to set screening levels but not
for conducting risk calculations or for setting alternative
cleanup levels at sites. DEC proposes to use the equation to
assess the concentration of contaminants that volatize from tap
water in residential use, and effectively offers no alternative.
The result of that calculation is used to set the Table C
cleanup levels and those values are used in the calculation of
the other soil cleanup levels listed in Table B1. Thus the
statement that the ramifications of using the Andelman equation
ripple through the rest of the regulations. He described this as
a technical detail that has great significance.
9:48:54 AM
MR. ACOMB maintained that the requirement for DEC to assess the
impact of the proposed regulation changes has not been
adequately addressed. He relayed that he is making a
presentation at the Alaska Forum on the Environment in two weeks
and part of that will be to quantify some of the costs
associated with the regulation change package. He offered to
share the calculations, noting it will be a crude quantification
but more than currently exists in the DEC documentation.
VICE CHAIR COLVER confirmed the committee would like to receive
the information.
REPRESENTATIVE WOOL asked if using the Andelman equation in
Table C and using that calculation to determine values in Table
B1 is a new methodology.
MR. ACOMB replied it's an old equation, but what's significant
is that this is the first time that DEC has looked at the risk
of breathing volatiles that emanate from contaminated tap water.
REPRESENTATIVE WOOL asked if all the levels are based on
ingesting or breathing volatiles from tap water and then those
levels are reverse engineered for groundwater. He posed a
hypothetical example involving arsenic.
MR. ACOMB said that's generally correct, but not the reference
to arsenic because it isn't a volatile organic compound (VOC).
He reiterated that this is the first time DEC has considered
volatilization from groundwater and dermal contact, and the
volatilization from tap water or groundwater is the more
restrictive pathway.
VICE CHAIR COLVER asked him to continue his testimony.
MR. ACOMB said he is pointing out technical details, but they
need to be ironed out before the regulations are implemented. He
again suggested that DEC use the existing comments and not try
to implement the regulation package without first working with
environmental professionals in the community. He noted that Ms.
Ryan said DEC is trying to develop human health risk-based
cleanup levels but the proposed regulations cap the groundwater
and soil concentrations at the Csat or solubility values instead
of using risk-based concentrations. So not everything in the
Table is truly risk-based, he said, and that should be
corrected.
He highlighted that DEC also said there are other options than
using the table value, but those options won't be available
until DEC updates the calculations for the new exposure routes
it wants to address in the proposed regulations. In particular,
the hydrocarbon risk calculator should be available for the
individual compounds before the regulations are promulgated.
However, the equations that drive that tool first need to be
reviewed by DEC and the environmental community to make certain
that it is doing what they want it to do. If the tool is
revised, it would have to include the Andelman equation or some
alternative, but there's been no decision about what would be a
good alternative.
VICE CHAIR COLVER summarized that the environmental and
scientific community believes that DEC should reopen public
comment, work with the professionals in the field and the
private sector to retool this regulation, and develop the [the
hydrocarbon risk calculator] tool before proceeding with
implementation.
MR. ACOMB answered yes, but the first step is for DEC to work
with environmental professionals in the community to address the
technical concerns that have been brought up. He suggested
convening several working groups to address the different
issues.
VICE CHAIR COLVER asked him to give his perspective of the
public comment periods that DEC held.
MR. ACOMB characterized the October 14 workshop he attended as
an overview or introduction to the proposed regulation package.
It was well attended and people from the audience asked
questions and brought up issues. He said a conversation that a
DEC chemist and three chemists in the audience had about arsenic
demonstrates the type of input the environmental community can
offer that could help DEC develop a better, more easily
implemented package of regulations.
10:01:33 AM
SENATOR COSTELLO asked if the proposed regulations require
reopening sites that were previously closed.
MR. ACOMB said if DEC decided to evaluate how these regulation
changes impact closed sites, there is the potential for many
sites to be reopened.
SENATOR GARDNER thanked Mr. Acomb for his testimony saying it
gave her a template for thinking about these issues.
REPRESENTATIVE WOOL asked if the new levels are based on new
science or new methodology.
MR. ACOMB offered his belief that the decision to assess risk of
inhalation of volatiles in tap water caused DEC to include the
Andelman equation. It's a simple but overly conservative
equation, which is why the EPA only uses it for screening
purposes.
10:05:58 AM
REPRESENTATIVE HAWKER asked Ms. Ryan to clarify where the agency
is in the process of promulgating these regulations and what
steps it anticipates taking to resolve the questions that have
been raised.
MS. RYAN said the extended comment period has closed and the
workshops were a success. The comments have been informative and
the regulation drafting process has been productive. DEC is
still reviewing the comments and she didn't know what the next
steps would be.
REPRESENTATIVE HAWKER asked if DEC intends to incorporate the
points that have been raised into a revised regulatory package
or move forward with the package as originally promulgated.
MS. RYAN replied they definitely will make changes based on the
comments, but she didn't know if they'd go back out for more
public comment.
10:09:34 AM
REPRESENTATIVE HAWKER summarized that DEC intends to make
changes to the original regulatory package but isn't sure when
or how those changes will be made and isn't sure if there will
be additional public comment.
MS. RYAN agreed with the summary.
REPRESENTATIVE HAWKER offered the following counsel for the
agency:
Kristin, if I look at the package that we've been
provided, which is basically the entirety of the
published public comment, and quite frankly and in the
hypothetical if I completely discount and ignore all
the comments from corporate and business entities
under the hypothetical presumption that they're simply
out for their own best economic interests and really
do not have the interests that you are charged with
regulating as their primary objective. Let's just
discount them; completely take them off the board and
not consider them.
That leaves me with the comments from other government
regulatory agencies, particularly the Department of
the Army, the Department of Defense and most
particularly the U.S. Army Corps of Engineers'
comments on your regulations. And since the Army and
the Department of Defense have had some really bad
experiences in Alaska and have left us with some,
literally some tragic environmental challenges, let's
take them off the board and presume they're just
trying to protect themselves.
But let's look at the Corps of Engineers. They serve
the regulatory purpose that we do as well. I mean
they're the guys that we have to go to for permitting,
for corporate projects, for engineering projects,
water projects. They're the guys that have a similar
mission to you. So if we confine our examination only
to their comments on your regulations, I would really
ask you to look at those comments.
To me they are a really significant criticism of the
entirety of your package of regulations. I think they
point out that they are basically not doable; they
create standards that are unachievable; they create
a... You can go through the whole thing, but I think
the points raised by the Corps of Engineers are an
absolutely succinct statement, an encapsulation from
another government regulatory agency of all the
comments that have been placed on record. And I've got
to tell you personally, I as a legislature would be
really, really and have incredible problems with your
going forward with a regulatory package that does not
directly and publically address the problems and
issues raised by the Corps of Engineers, and that you
specifically - because there are such manifest
problems with these regulations - that you absolutely
must take these out for a complete review, public
review so the other entities who do have legitimate
concerns raised, have a second bite at the apple to
work this through with you.
But again, if you use the Corps of Engineers' comments
as your roadmap, I think you're on the right trail
here. And again, this is when I would strongly
admonish you to take that approach and recognize that
this package is just not ready for prime time. And I
appreciate you indulging my thoughts there Kristin,
and I know you'll pass it up the line.
10:13:08 AM
VICE CHAIR COLVER concurred with the comments and noted that
other committee members were nodding in agreement. He said the
committee can't necessarily mandate anything, but it is the
public's voice and interface with the agencies to bring light to
issues in an effort to do a better job.
SENATOR COSTELLO agreed with Representative Hawker's comments
and said she would be grieved to learn that the department may
not go out for another round of public comments. She also
pointed out that the EPA only uses the Andelman equation for
screening purposes and DEC proposes using it to set cleanup
levels despite the fact that AS 46.09.020(a)(1)(B) says the
department's guidelines shall be consistent with national
guidelines.
10:16:19 AM
MS. RYAN explained that the national contingency plan referred
to in statute is a specific document related to spill response
so it doesn't apply in this situation.
SENATOR COSTELLO asked which statute provides DEC the authority
for the proposed regulations.
MS. RYAN replied it is the beginning of that section as well as
some other broad authorities the department has to establish
regulations.
10:17:23 AM
VICE CHAIR COLVER recommended the committee draft a letter
directing DEC to revise the regulations for 18 AAC 75, submit
the package to a working group of experts and government
entities, and then open a public comment period. He noted nods
of approval and opined that the consensus is that it is
inappropriate to move forward with the adoption of the proposed
regulations at this time.
10:19:17 AM
There being no further business to come before the committee,
Vice Chair Colver adjourned the Administrative Regulation Review
Committee at 10:19 a.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Hulbert comments on 2015 proposed cleanup levels.pdf |
JARR 1/28/2016 9:00:00 AM |
|
| Public Comments Received on the Cleanup Level Amendments (002).pdf |
JARR 1/28/2016 9:00:00 AM |
|
| Public Comments Received on the Risk Assessment Amendments.pdf |
JARR 1/28/2016 9:00:00 AM |
|
| Public Notice SPAR Cleanup Level Amendments.pdf |
JARR 1/28/2016 9:00:00 AM |
|
| Second Supplemental Public Notice SPAR Cleanup Level Amendments (004).pdf |
JARR 1/28/2016 9:00:00 AM |
|
| Supplemental Notice - SPAR Cleanup Level Amendments.pdf |
JARR 1/28/2016 9:00:00 AM |
|
| 18_AAC_75_Cleanup_Level_Amendments_October_22_2015.pdf |
JARR 1/28/2016 9:00:00 AM |