HOUSE BILL 51 "An Act relating to the Department of Environmental Conservation." Co-Chair Therriault reminded Committee members that a MOTION had been left pending on Amendment #13 from a previous meeting. Representative J. Davies WITHDREW Amendment #13 and Amendment #8. [Attachment #13 & #8]. He noted that the bill's sponsor, Representative Rokeberg, had agreed to work with him at a future date on those two amendments. There 1 being NO OBJECTION, the amendments were withdrawn. Representative Davies repeated that Amendments #8 & #13 were the most important issues of the legislation and would most definitely be addressed. A new Amendment #1 was distributed to Committee members. Representative J. Davies MOVED to adopt the new Amendment purpose of discussion. Representative Davies spoke to the amendment, stating that it was not State policy to enact laws and regulations even if they were scientifically based. He specified that the "policy" should be to protect human health and habitat. REPRESENTATIVE NORMAN ROKEBERG requested the Committee to divide the amendment into two parts, noting that he could support the first portion of the amendment, although, he thought that portion (B) was the intent language of the legislation and had been addressed in the body of the bill on Page 2, Line 13. That section references adoption of water quality standards in the State, and the responsibilities of Department of Natural Resources (DNR) to insure that human health and wildlife be taken into consideration. Co-Chair Therriault MOVED to divide the question. There being NO OBJECTION, it was divided. Co-Chair Therriault MOVED to adopt Section (A) of Amendment #1. There being NO OBJECTION, it was adopted. Co-Chair Therriault asked if there was objection to adopting the language in Section (B) of Amendment #1. Representative Kelly OBJECTED. Representative Rokeberg reiterated that the proposed language would confuse interest expressed in the intent language. Representative J. Davies pointed out that the amendment addresses the area in the first sentence of the bill, State policy. He suggested that the amendment would clarify the policy purpose. A roll call vote was taken on the MOTION to adopt Section (B), Amendment #1. IN FAVOR: Grussendorf, Moses, J. Davies, G. Davis OPPOSED: Kelly, Kohring, Martin, Mulder, Foster, Therriault Representative Hanley was not present for the vote. The MOTION FAILED (4-6). Representative J. Davies MOVED to adopt Amendment #2. [Attachment #2]. Co-Chair Therriault OBJECTED for the 2 purpose of discussion. Representative Rokeberg noted that he did not object to the amendment. Co-Chair Therriault WITHDREW the OBJECTION. There being NO further OBJECTIONS, Amendment #2 was adopted. Representative J. Davies MOVED to adopt Amendment #3. [Attachment #3]. Co-Chair Therriault OBJECTED. Representative Rokeberg noted that he did not object to the amendment. Co-Chair Therriault WITHDREW the OBJECTION. There being NO further OBJECTIONS, Amendment #3 was adopted. Representative J. Davies WITHDREW Amendments #4, #5 and #6. [Attachments #4, #5, #6]. Representative J. Davies MOVED to adopt Amendment #7. [Attachment #7]. Co-Chair Therriault OBJECTED for the purpose of discussion. Representative J. Davies explained that Amendment #7 would simply change the amount of time that the Department has to respond to the initiation of a procedure and response to a request. Representative Rokeberg objected to the amendment. He pointed out that concern had been addressed in subsection [C], exempting any applicant from petitioning under the Administrative Procedures Act. He pointed out that the 90 days was the agreed time needed to initiate the process. Subsection [C] only comes into play in "reduction in" or "elimination of" federal water quality standard criteria for regulations. Representative Rokeberg suggested that the section was prospective. That portion of the bill resulted from the transition review by the Department, which in the past, had taken up to four years to make some of the corrections. If the federal government were to change any provisions of the Clean Water Act and/or the regulations relating to it, that section would allow an applicant to make a request, the reduction in that regulation or the complete elimination by the federal government. Given the language of the bill, following the 90 day period, the Department would be responsible to start the process. Co-Chair Therriault pointed out that Page 2, Line 11, would initiate the regulatory review process. Representative Grussendorf interjected that the Department would then have more responsibilities. ALVIN EWING, DEPUTY COMMISSIONER, DEPARTMENT OF NATURAL RESOURCES, commented that it was not the length of time, but the issue of the new process which makes the legislation prohibitive. Currently, the Administrative Procedures Act allows companies to come forward to address their concerns. Procedures are currently in place. He stressed that the 3 role of the federal government would be to provide guidance, which differs from the responsibilities of the Department and the State. Mr. Ewing emphasized that the process recommended through the legislation was "flawed" and that the bill will create an enormous work load for the Department. In regard to the amendment, he stated that if a choice had to be made, the Department would choose 180 days, but reiterated that the process is not necessary. A roll call vote was taken on the MOTION. IN FAVOR: Moses, J. Davies, Grussendorf OPPOSED: Kelly, Kohring, Martin, Mulder, G. Davis, Foster, Therriault Representative Hanley was not present for the vote. The MOTION FAILED (3-7). Representative J. Davies MOVED to adopt Amendment #9. [Attachment #9]. Co-Chair Therriault OBJECTED for the purpose of discussion. Representative Rokeberg suggested that the amendment was redundant and unnecessary. An applicant coming forward would be required to submit their reasons and basis for them. Scientific and economic aspects only come into "play" if the Department chooses to make it a more stringent regulation. Representative Mulder asked if there was any other reason to make the request. Representative Rokeberg pointed out that only subsection [C] would be addressed in the amendment, and only if there was a reduction or elimination in the federal government standard. Representative J. Davies advised that the "process" would relate to what the Department was responsible for "finding" addressed on Page 4, Lines 11 & 12. He stated that Amendment #9 specifies that when the request is made, the change would be in the criteria, either a reduction or elimination, which by definition would be a "scientific" change. The economic portion would be the "new" section. When an industry requests the State to change standards, it would help the process to have the industry specify the economic advantages. Representative Davies concluded that step would facilitate the process. Co-Chair Therriault suggested that if the federal standard was discontinued, even if the State continued industry to require it without justification, an automatic economic reason would exist each time. Representative J. Davies 4 disagreed, suggesting that it would not necessarily be automatic. In some situations, the existing work could cost money; the Department could address that concern without changing the standard of the State. Just because the federal government changes policy, the State will not necessarily follow suit. He stressed that the more information the Department has when the request is made, the easier it would be to solve the problem. Representative G. Davis spoke to the "unknown" and the complication of those changes, suggesting that the amendment would have merit. A roll call vote was taken on the MOTION. IN FAVOR: Moses, J. Davies, G. Davis, Grussendorf OPPOSED: Kohring, Martin, Mulder, Foster, Kelly, Therriault Representative Hanley was not present for the vote. The MOTION FAILED (4-6). Representative J. Davies MOVED to adopt Amendment #10. [Attachment #10]. Co-Chair Therriault OBJECTED for the purpose of discussion. Representative J. Davies explained that the amendment would delete subsection [D], Page #3. He believed that section determines what constitutes a measurement standard. He stressed that the Department is competent in deciding what an adequate test is and that it should not be submitted to the Environmental Protection Agency (EPA). Representative Rokeberg objected to the amendment. BECKY GAYE, (TESTIFIED VIA TELECONFERENCE), RESOURCE DEVELOPMENT COUNCIL (RDC), ANCHORAGE, testified that the EPA approved methods are what the industry wants, knowing that it could be approved in advance. She recommended not to delete that section. The boundary of method should be approved by EPA. If the State does not want to use EPA, they would be required to reference the following page, subsection [3]. Representative Kelly asked if the situation would be in jeopardy by not having the approval in writing. Ms. Gaye replied that whether it was in writing or not was the concept of the amendment. Methods currently exist on the books. A roll call vote was taken on the MOTION. IN FAVOR: Moses, J. Davies, Grussendorf OPPOSED: Martin, Mulder, G. Davis, Foster, Kelly, 5 Kohring, Therriault Representative Hanley was not present for vote. The MOTION FAILED (3-7). Representative J. Davies MOVED to adopt Amendment #11. [Attachment #11]. Co-Chair Therriault OBJECTED for the purpose of discussion. Representative Davies noted that subsection [E] specifics that the Department use the volume metric off-cone method, pointing out that they do use it at this time. Representative Rokeberg responded that the cone is a simple method of measurement which is good to use in the field. There has been a lot of study regarding that concern. The Department issued "findings" that they should use that method, although, it has not been adopted into specific regulations. Representative Rokeberg felt that the language provided all the necessary flexibility and would be the EPA recognized standard of measurement. Representative J. Davies could not believe that the State would put into statute a requirement that the Department stay "lock-step" in with the federal government on any issue. The in-lock cone is the measurement choice used at this time. He observed that might not be true in the future and questioned why the State would lock in statute something that should be a regulatory issue. Techniques change and that type of detail would not be good policy in statute. (Tape Change HFC 97-43, Side 2). Representative Mulder questioned if another alternative was available. Representative Kelly replied that alternatives are not the problem. He stated that the bill addresses the leeway given to the experts referenced to by Representative Davies, suggesting that current language was too broad. A roll call vote was taken on the MOTION. IN FAVOR: Moses, J. Davies, Grussendorf OPPOSED: Mulder, G. Davis, Foster, Kelly, Kohring, Therriault Representatives Martin and Hanley were not present for the vote. The MOTION FAILED (3-6). Representative J. Davies MOVED to adopt Amendment #12. [Attachment #12]. Co-Chair Therriault OBJECTED for the 6 purpose of discussion. Representative J. Davies explained that the amendment would address the difference between the biochemical and physical conditions, indicating that they are different from those conditions upon which federal standards are based. He believed that the intent was to certify a change, if any of the conditions were found. The language of the bill requires that all three exist, the biological, chemical and physical conditions. Representative Davies recommended replacing the "and" with "or". Representative Rokeberg replied that these conditions are what exist in the entire world. The amendment would allow the Department to consider everything, in case that they would want to make the standard more stringent. He suggested that it would be to the benefit of the Department to keep the "and". Representative J. Davies pointed out that "or" remained in the body of the legislation in reference to the biological and chemical discharge characteristics. Representative Mulder suggested that the argument was one of semantics. He agreed that a full range of options should be available. Mr. Ewing stated that "or" would provide more latitude than "and". The use of "and" would require that the Department demonstrate each of the points. Committee members discussed the semantic differences between using "or" or "and". Co-Chair Therriault WITHDREW the OBJECTION to adopt Amendment #12. Representative Foster proceeded to OBJECT. A roll call vote was taken on the MOTION adopt Amendment IN FAVOR: Mulder, J. Davies, G. Davis, Grussendorf, Kelly, Moses, Therriault OPPOSED: Foster, Martin, Kohring Representative Hanley was not present for the vote. The MOTION PASSED (7-3). Co-Chair Therriault noted that Amendment #13 had been WITHDRAWN by Representative J. Davies. [Attachment #13]. Representative Kelly corrected Amendment #14, on Page 2, Line #4, deleting "and physical conditions;" and the information on Page 2, Line #5 from the amendment. [Attachment #14]. There were no objections to the changes recommended by Representative Kelly. 7 Representative Kelly MOVED to adopt the changed Amendment discussion. Representative Kelly noted that under current statute, statutory authority has been given to the Department of Environmental Conservation in stream classification. He pointed out that sometimes the condition of the water is at a lower standard than the conditions established as "uses" in the regulations. The amendment would establish that the natural occurring condition would establish the water standard. BRUCE CAMPBELL, STAFF, REPRESENTATIVE PETE KELLY, discussed the deletion of the language "discharge" standards. That language would establish a link with language created by EPA. Co-Chair Therriault WITHDREW his OBJECTION to adopting the amendment. There being NO further OBJECTION, it was adopted. Co-Chair Therriault spoke to the new departmental fiscal notes pointing out that the fiscal impact had been reduced since the initial legislation. He stated that the initial notes were contingent on Section #2, which had become "permissive" language, thus, reducing the DEC fiscal note. GERON BRUCE, LEGISLATIVE LIAISON, DEPARTMENT OF FISH AND GAME, commented on the fiscal impact to the Department of Fish and Game. Co-Chair Therriault asked if the amendments adopted by the Committee would increase the fiscal pressure to that Department. Mr. Bruce stated they would not. Representative Foster MOVED to report CS HB 51 (FIN) out of Committee with individual recommendations and with the accompanying fiscal notes. Representative J. Davies OBJECTED. He voiced appreciation to Representative Rokeberg for working with the minority members of the Committee. Representative Davies stated that as the bill currently exists, there are substantial problems and that he would not vote to move it out of Committee because he felt it was not in a passable form. A roll call vote was taken on the MOTION. IN FAVOR: Foster, Grussendorf, Kelly, Kohring, Martin, Mulder, Therriault OPPOSED: J. Davies, Moses 8 Representatives G. Davis and Hanley were not present for the vote. The MOTION PASSED (7-2). CS HB 51 (FIN) was reported out of Committee with a "do pass" recommendation and with fiscal notes by the Department of Fish and Game and the Department of Environmental Conservation.