HB 318-UNREGULATED POTABLE WATER SYSTEMS  8:34:38 AM CO-CHAIR HERRON announced that the first order of business would be HOUSE BILL NO. 318, "An Act relating to public use of unregulated water systems." [Before the committee is CSHB 318, Version 26-LS1357\R, Bullard, 1/29/10, adopted at the February 25, 2010 meeting.] 8:34:43 AM PETE FELLMAN, Staff, Representative John Harris, Alaska State Legislature, said that it's clear that water is the most basic human need. He opined that with proper disclosure people should have the right to choose. He further opined that if the Department of Environmental Conservation (DEC) had followed its own regulations, this legislation wouldn't be before the committee today and people wouldn't have been forced to drive 45 miles to haul water. He pointed out that the Code of Federal Regulations (CFR) 40 ยง141.2 provides for variances for up to five years while DEC helps people upgrade their water systems via time and funds. He stressed that the well in Salcha has never tested positive for any contaminants. 8:36:29 AM CO-CHAIR MUNOZ recalled that once there are 25 or more people using a well, a more restrictive standard is put in place. She inquired as to how many people are using the well in Salcha. MR. FELLMAN answered that up to 40 families use the well in Salcha. However, DEC regulations require that each individual be counted. He noted that the committee packet should include a list of the individuals using the Salcha well. CO-CHAIR MUNOZ related her understanding that many of the individuals used the Salcha well seasonally. MR. FELLMAN confirmed that to be the case, and added that the list he provided to the committee covered a fairly broad spectrum of time. He recalled that when the lock was put on the well there were about 32 individuals using it, and thus from that time forward only 24 individuals were allowed to use the well. 8:37:57 AM CO-CHAIR HERRON requested that Mr. Fellman describe Salcha. MR. FELLMAN related that Salcha, which is part of the Fairbanks North Star Borough, doesn't have a government. Salcha is one of the longest communities in Alaska as it covers about 40 miles along the Richardson Highway south of Fairbanks. The geography is such that most people can't drill wells for water unless they live down by the river. 8:38:55 AM REPRESENTATIVE CISSNA inquired as to the number of children in the Salcha area. MR. FELLMAN estimated that perhaps 100 children live in the area. 8:39:47 AM CO-CHAIR MUNOZ asked if DEC currently has a standard in statute for unregulated water. MR. FELLMAN specified that the department can provide variances. For instance, for some wells DEC provides variances such that there is unregulated water when [the well] is used less than 60 days. Therefore, in the case of Salcha the sponsor is concerned that DEC didn't provide the opportunity to use a variance to allow for the Salcha well to be upgraded. In further response to Co-Chair Munoz, Mr. Fellman explained that DEC is the regulating authority and CFR 40 has been adopted in the state's regulations. He expressed concern that DEC didn't come to Salcha and offer the opportunity to help and provide time to address any problems. 8:42:43 AM KRISTIN RYAN, Director, Division Environmental Health, Department of Environmental Conservation, explained that HB 318 technically prohibits DNR from stopping the consumption of water from a public water system that's posted a warning. However, DEC assumes the intent is to modify DEC's authority since it's the department that regulates public water systems. The authority of DNR is restricted to ensuring people have access to water, while DEC has the authority to regulate consumption from a public water system. She opined that modifying DNR's authority rather than DEC's authority was a drafting error. Ms. Ryan then emphasized that the state has primacy over drinking water from the Environmental Protection Agency (EPA), which means the state has primary enforcement authority for the U.S. Safe Drinking Water Act. Therefore, the state via DEC implements the federal laws in Alaska as long as an adequate job is done and the state's rules are equal to the EPA guidelines for the Safe Drinking Water Act. Unfortunately, HB 318 wouldn't meet that standard as it changes the definition of a public water system and allows a public water system to opt out of being a water system so long as a warning is posted. The federal definition, she explained, defines a public water system and if that definition is met, then a public water system exists and there is no opt-out provision. Therefore, if HB 318 passes, the EPA would revoke DEC's enforcement authority and EPA would enforce the [federal] rule that already exists. Ms. Ryan opined that the legislation doesn't accomplish the desired effect of eliminating any burden on the water system, rather it increases the burden because the EPA would take over enforcement rather than the state. She noted that of the many benefits of primacy, significant funding is the top benefit. Currently, the federal government gives the state $4.2 million to implement its rules, while the state match is $1.6 million. In addition the state receives funding that's loaned or granted to communities to construct or repair existing water systems. The state's capitalization grant this year is $13 million, which can be utilized by small public water systems to comply with the standard. This year's state capitalization grant is higher than the average $8 million because of the stimulus recovery effort. She then pointed out that there is a cadre of tools the state is able to utilize that EPA wouldn't be able to if the EPA had primacy. For instance, DEC can hire third party inspectors. She related her understanding that Alaska is the only state she knows about that pays private engineers to inspect and provide technical assistance to water systems. In fact, about 75 percent of the sanitary surveys are performed by third party inspectors. An additional benefit to the state having primacy is the state's ability to grant variances or exemptions. The EPA has drafted 23 rules with which public water systems have to comply. The state doesn't have primacy for all of those rules and is working on obtaining primacy for rules 17-19. She explained that variances or exemptions have specific limitations such that they can't be granted for a rule that could have an immediate impact on human health. Variances and exemptions are allowed for chronic contaminants. For example, DEC has granted many variances and exemptions on the Kenai Peninsula for arsenic. Variances and exemptions, she further explained, can't be granted for water systems to never apply, but rather are tools that allow time to find a better source of water, collect necessary resources. Although variances and exemptions have limitations, they're incredibly useful and allow many systems to remain in compliance that wouldn't otherwise. MS. RYAN informed the committee that in the case of the Salcha water system, the [owners of the Salcha water system] don't want to test at all. However, a variance or exemption to not test or not be a water system can't be granted. She reiterated that variances and exemptions can only be granted to provide time to comply with specific rules. With regard to an earlier question regarding standards, the state also regulates water systems that fall below the federal definition, but doesn't regulate private wells. For example, the state regulates, albeit to a much lower standard, those water systems that serve less than 25 individuals per day and don't serve a duplex, which is the position in which Salcha is. Therefore, systems such as Salcha are required to do monitoring, although to a lesser scale than federally regulated water systems. 8:52:08 AM MS. RYAN, in response to Representative Keller, confirmed that there is a definition of a "public water system" in the federal regulations, which were implemented because of the Safe Drinking Water Act. However, the State of Alaska also has a definition of a "public water system" in its regulations that goes further because it covers the smaller water systems that the federal government doesn't regulate. Because Alaska's definition is more stringent than the federal definitions, Alaska's program is acceptable and has been approved by the EPA. If HB 318 were to pass, then the state's definition of a "public water system" would be less stringent than that of the EPA, and thus the state's program wouldn't be approvable. 8:53:32 AM MS. RYAN, in further response to Representative Keller, said that water systems shift [in and out of being a public water system and not being a public water system]. Furthermore, the federal government is mostly concerned about water systems that serve a non transient community, people who are drinking the water all the time. She pointed out that there are many federally regulated public water systems in Alaska that are only considered a public water system during the summer. Ms. Ryan clarified that a public water system is only considered as such when it's a watering point with a well or a piped system that feeds the water at the end of the pipe. However, 25 people drinking water from a river without utilizing a piped system wouldn't be considered a federally regulated water system. 8:55:26 AM REPRESENTATIVE GARDNER asked if it's certain that passage of HB 318 would revoke state primacy on drinking water. If so, she inquired as to how long the process would take. MS. RYAN answered that although DEC is waiting on the official EPA document that would specify the aforementioned, DEC has been informed that passage of HB 318 would result in the revocation of the state's primacy. The department has also been informed that the revocation of the state's primacy would occur rather swiftly and that funding from this fiscal year would be withdrawn, and thus may need to be repaid. Furthermore, the EPA has warned DEC that the situation is being watched closely. 8:56:33 AM CO-CHAIR HERRON emphasized that just because the legislature is discussing something, doesn't mean that it will happen. He asked if DEC has shared the aforementioned with the EPA. MS. RYAN explained that the EPA is aware of HB 318 and DEC has related to the EPA the steps it will take to inform the legislature of the impacts of HB 318. The EPA has warned DEC that passage of HB 318 would result in the EPA not certifying the state's program. Although she said that she didn't know how quickly it would occur, the EPA seemed fairly serious, she related. CO-CHAIR HERRON expressed concern regarding this threat from the federal government that it will pull current year funding just because the legislature is discussing a local issue. He suggested that Ms. Ryan relate to the federal government that the legislation has a long way to go before it could become law. MS. RYAN related that she has told the EPA the aforementioned. She clarified that the EPA would only revoke funding if the legislation passes and becomes law. 8:58:20 AM REPRESENTATIVE CISSNA inquired as to how much it would cost the state to help Salcha achieve a better water system and standards. MS. RYAN answered that it wouldn't take much at all. The Salcha water system is a ground water system that seems to be clean from the limited testing the department has seen. For such a water system, Ms. Ryan estimated that it would cost approximately $15,000 for the initial engineer review and checking to ensure the well is cased correctly. Also the average testing costs for an average ground water system that doesn't have any treatments is about $500 per year. 9:00:21 AM REPRESENTATIVE CISSNA related that she attended the National Public Health Conference during which there was a presentation on safe water, which focused mainly on Alaska. During the presentation it was said that nationally about 99 percent of water is clean, whereas only about 70 percent or so of Alaska's water is considered clean. The presentation provided much information regarding the impacts of unclean water on Alaskan infants. She opined that physical and emotional damage occurs when one in three children in communities with unsafe water are sent to hospitals [outside the community in which the child lives] and away from the parents. Therefore, she understood the concern for the safety of humans, especially children. She asked if DEC contemplates the aforementioned. MS. RYAN said she isn't familiar with those statistics. However, she related her understanding that Dr. Hurlburt, Director, Division of Public Health, has related his personal experiences when villages didn't have safe drinking water sources and the high rates of disease and sickness in infants in particular. Ms. Ryan emphasized that there is a marked change in the health of communities when they have a safe drinking water source. Since most of Alaska's communities have had safe drinking water since the 1970s, she said that nothing has dramatically changed since then. 9:03:08 AM CO-CHAIR HERRON inquired as to why the Fairbanks North Star Borough isn't involved since Salcha is in the borough. MS. RYAN said that while a public water system is often run by a government organization, they aren't necessarily run by the city and borough government. The DEC isn't concerned with who runs the water system; the concern is that it's run safely. 9:04:28 AM CO-CHAIR HERRON announced the intent of the co-chairs to bring HB 318 before the committee again next week. 9:05:18 AM WARD HURLBURT, M.D., Chief Medical Officer/Director, Division of Public Health JILL LEWIS, Deputy Director, Division of Public Health, Department of Health and Social Services (DHSS), had his testimony read by Jill Lewis, Deputy Director, Division of Public Health, DHSS, as follows: As I read the background about this bill, I certainly sympathize with the residents of Salcha who clearly felt that they were doing a good thing for their neighbors, to provide a well for them in a community location. I also understand the intent to try to shield the residents of Salcha and other Alaska communities from unnecessary and burdensome state regulation. I first worked in Alaska as a physician in 1961 when I lived in Dillingham, in the days before the state and federal government began to collaborate on projects to bring safe water and sanitation to remote and rural communities across Alaska; a process that is ongoing and certainly not yet complete. As a young physician, I was impressed with a large number of very sick toddlers and infants who needed to be hospitalized and placed on intravenous fluids due to severe gastroenteritis and diarrhea. In 1962 I presented a scientific paper at the National Institute of Health contrasting the incidents of this serious and sometimes fatal health problem between breast fed and bottle fed infants. The breast fed infants seldom contracted this condition and it was all too common in bottle fed infants and toddlers. Over the years, as safe water and sanitation systems were installed across Alaska the number of sick young children and infants with gastroenteritis dramatically declined. Today there are fewer in patients in each of the tribal health system field hospitals than there were in the 1960s. The major reason for this dramatic change has been the reduced number of sick infants and young children with gastroenteritis and those of similar age who were ill with complications of now vaccine preventable communicable diseases. The regulations that were put in place to protect the public from unsafe water were a response to the serious morbidity and mortality occasioned by the use of unsafe water by Alaskans. The regulations are not onerous, but are common sense and responsible. You have heard from DEC that they tried to administer this regulation in a supportive, helping manner. You've also heard that in the absence of an Alaska regulation, the federal Environmental Protection Agency will administer the federal requirements and take away the $7.5 million federal grant used to administer this public service regulation. While I sympathize with the good intentions behind this bill and the frustration on the part of the Salcha residents who felt they were doing a good thing, I must express concerns with this bill. The assurance of safe water supplies is a core responsibility of good government. 9:08:40 AM MR. FELLMAN, in response to Co-Chair Herron, specified that the well is maintained by the Salcha Fair Association as it's located on the fairgrounds' property. One individual has control of the keys to the well. CO-CHAIR HERRON then inquired as to why the Salcha Fair Association isn't interested in having a water system. MR. FELLMAN related that the Salcha Fair Association and the residents in the area are interested in having a water system and the well has been tested twice yearly and been clean. The issue is the cost of the engineering to upgrade the well. Mr. Fellman opined that because of CFR 40, DEC has regulations in place that provide, in certain economic situations, federal funds to the state to upgrade, educate, and help [construct] safe water systems. He explained that three years can be provided to upgrade a well and then a five-year extension. However, a certain standard must be met. Mr. Fellman opined that Salcha merely needs a variance to meet a standard within a reasonable timeframe. Such a variance could allow Salcha time to obtain the funding for the engineering and upgrades. However, DEC chose to cut off people from the Salcha water system. 9:11:12 AM CO-CHAIR MUNOZ asked if Salcha residents pay taxes to the borough. MR. FELLMAN replied yes. In further response to Co-Chair Munoz, Mr. Fellman said that he didn't know whether the Salcha residents have petitioned the borough government for assistance. 9:11:36 AM CO-CHAIR HERRON asked if DEC has worked with the borough government since there is no tribal or city government related to this well. MS. RYAN replied no. She informed the committee that the Fairbanks North Star Borough doesn't even run the public water system in Fairbanks. The public waters systems in the Fairbanks North Star Borough tend to be privately held. CO-CHAIR HERRON suggested that [HB 318] provides an opportunity to create a new way to provide safe water. MS. RYAN reiterated that many privately held entities have chosen to run their water system to ensure safe drinking water. She explained that water system members can approach the department or other funding sources to obtain resources to get their system into compliance. The program provides millions of dollars in loans and grants are available to communities to perform upgrades. The department works with interested entities, but the department can't make entities seek these opportunities. 9:14:20 AM CO-CHAIR HERRON announced the intent of the sponsor and the co- chairs to work on this legislation. He further announced that the fiscal note will change to a net zero as he doesn't appreciate the threat [from the federal government]. He reiterated that HB 318 would be held over. 9:14:56 AM REPRESENTATIVE CISSNA asked if it's possible for DEC to give loans to communities, which the communities could repay. MR. FELLMAN acknowledged that there is federal money available. He emphasized that the community just needed time and technical assistance to upgrade the well. He opined that the community of Salcha isn't opposed to gathering the $15,000 to upgrade the well, the community just needed a variance in order to have the time to work with DEC to craft a plan to upgrade the well. With regard to health concerns, Mr. Fellman expressed concern with the regulation that essentially isn't concerned [with the health] of those using a water system when there are less than 25 people who use it. [HB 318 was held over.]