HB 46-MIXING ZONES/SEWAGE SYSTEMS  10:21:38 AM CHAIR EDGMON announced that the first order of business would be HOUSE BILL NO. 46, "An Act requiring the Department of Environmental Conservation to collect and make available to the public certain information relating to water pollution; prohibiting certain mixing zones in freshwater spawning waters; and requiring a public comment period for certain sewage system or treatment works modifications." He then noted that public testimony on HB 46 was closed. 10:23:06 AM REPRESENTATIVE PAUL SEATON, Alaska State Legislature, informed the committee that the bill asks three questions: Should citizens have the right to know Department of Environmental Conservation (DEC) information on freshwater pollution without having to file a Freedom of Information Act request? Should pollution above the state toxic standards be allowed to be discharged on freshwater spawning beds as mixing zones? Should neighbors have the right to a public hearing if a commercially operated sewage lagoon is going to be expanded over 50 percent in their neighborhood? Representative Seaton stated that the biggest of these questions is regarding mixing zones, and explained that mixing zones are areas where the state allows toxic pollutants to be discharged. He pointed out that the bill restricts this discharge in a spawning area; in fact, this is a return to the law previous to 2002, when mines "were permitted under those situations." For example, the Donlin Creek [mine] was required to move its mixing zone upstream, away from a spawning area. He noted that HB 46 will ensure that there is an exemption for problems with turbidity from placer mining operations, and the bill does not affect other permits for in- stream crossings. 10:25:15 AM REPRESENTATIVE KELLER recalled that amendments have been discussed at previous hearings. He moved to adopt Amendment 1. CHAIR EDGMON objected for the purpose of discussion. 10:25:33 AM REPRESENTATIVE SEATON explained Amendment 1, which read as follows: Page 3, line 24, following "for a": Insert "commercially operated" REPRESENTATIVE SEATON said that the amendment eliminates the question of whether a sewage lagoon is a disposal site on private property. 10:26:03 AM CHAIR EDGMON removed his objection. Hearing no further objection, Amendment 1 was adopted. 10:26:12 AM REPRESENTATIVE KELLER moved to adopt Amendment 2. CHAIR EDGMON objected for the purpose of discussion. 10:26:25 AM REPRESENTATIVE SEATON explained Amendment 2, which read as follows: Page 3, following line 21 Insert: (4) "useful life" means the anticipated time in which a facility can continue to be operated without replacement or major renovation. REPRESENTATIVE SEATON said that the amendment adds clarity to the intent of the statute. 10:26:44 AM CHAIR EDGMON removed his objection. Hearing no further objection, Amendment 2 was adopted. 10:26:49 AM REPRESENTATIVE KELLER moved to adopt Amendment 3. CHAIR EDGMON objected for the purpose of discussion. 10:26:59 AM REPRESENTATIVE SEATON explained Amendment 3 which read as follows: Page 3, line 5 After "authorization" delete "." Insert: ", or for an area where spawning was ongoing at the time of initial authorization, if that authorization occurred more than five years prior to the effective date of the bill." REPRESENTATIVE SEATON said the amendment provides clarity for rural villages that have sewage outfalls which have not been officially permitted. 10:27:47 AM CHAIR EDGMON removed his objection. Hearing no further objection, Amendment 3 was adopted. 10:28:01 AM CHAIR EDGMON called for discussion on HB 46, as amended. 10:28:20 AM REPRESENTATIVE MILLETT maintained her concern about the effect of changing mixing zone requirements on small, undeveloped communities. In addition, the fiscal note indicates the addition of staff, and she opined that DEC is "doing a good job with the statutes as they stand on mixing zones." She said she will not be able to support the bill in its present form. 10:30:01 AM REPRESENTATIVE SEATON responded that the remaining question was whether the committee believes it is good public policy to discharge toxics above the state standards for aquatic life on freshwater spawning areas. He clarified the spawning areas are nesting areas for the named species, such as salmon, when the salmon are not actively laying eggs. Furthermore, there have been no mine permits denied because of this accommodation. Representative Seaton opined not protecting spawning grounds is "trading away our renewable resources and our fisheries resources on which all our communities depend." The bill does not prevent mixing zones in rivers, but makes modifications so that a mixing zone does not occur in a spawning area. 10:31:38 AM REPRESENTATIVE MILLETT expressed her belief that the legislation elevates one resource over another for development. She said, "In my walk around the state, have seen that [miners] are doing the upmost to protect all resources equally." She concluded that the bill may not allow permitting for some mines and is "over-reaching." 10:32:50 AM CHAIR EDGMON pointed out that HB 46 has safeguards to exempt municipalities and placer mines, and asked Representative Seaton to speak about the exemptions. 10:33:54 AM REPRESENTATIVE SEATON provided the example of the Donlin Creek mine, which applied for a permit prior to the change in law. The mine was required to move its mixing zone 1,400 feet to a "boulder patch area" that was not in a spawning area. After this change, the mine received its permit. Furthermore, the bill exempts artificial settling ponds or channels that are later "invaded by one of the fish species," so they may not be reclassified as spawning areas. In addition, the bill accommodates turbidity caused by placer mines. He restated the intent of the bill is to prevent pollution, above the level that the state sets as safe for aquatic life, from being discharged in spawning areas. 10:36:54 AM REPRESENTATIVE KELLER recalled testimony from DEC indicating that regulations already prohibit mixing zones in spawning areas "with the time element." He stated that the above information, along with the "unknowns" surrounding the bill's impact on municipalities, prevent him from supporting the bill. 10:37:53 AM REPRESENTATIVE SEATON advised that comments from the municipalities and villages have indicated that one of the amendments adopted "took care of that problem that DEC had identified, that there were some things that they hadn't permitted." Therefore, unpermitted discharges that are normal in some parts of rural Alaska are taken care of. However, after the useful life of facilities is past, the replacement should be "at a level of what we want to see for Alaska." 10:38:54 AM REPRESENTATIVE MUNOZ observed HB 46 also affects lakes and resident fish, such as Arctic char and other species. The bill is very broad, and she cited the difficulty of permitting the tailings disposal plan for the Kensington Mine in Juneau that occurred over the discovery of an introduced trout species. Although the Kensington Mine did not require a mixing zone, she maintained her concern about adding uncertainty to the permitting process. She asked for a response regarding the aforementioned issue and on the influence of the Clean Water Act (CWA) on this legislation. 10:40:14 AM REPRESENTATIVE SEATON concurred that the Kensington Mine did not require a mixing zone. Although freshwater fish in lakes are included in the language of the bill, he pointed out that HB 46 does not cover broadcast spawners, but only species that spawn in redds, or nests. He acknowledged that the CWA requires public process for its tri-annual review; however, public process for adopting standards is set "as appropriate" by 33 United States Code (USC) 1313(c)(1). He assured the committee that the idea that the state can, or cannot, disallow mixing zones is not the issue as proven by the statute that was enacted affecting the cruise line industry. The bill does not change the toxic standards, but merely disallows the ability to exceed the established standards on spawning grounds. 10:43:27 AM REPRESENTATIVE MUNOZ opined legislation affecting the cruise ship industry has proven to be a very onerous and unscientific method of regulating water quality. She maintained her concern that legislating water quality without the regulation process leads to unintended consequences. REPRESENTATIVE SEATON reminded the committee that in 2002, the Murkowski administration eliminated the standard that prevented mixing zones from being part of spawning areas, and this bill reinstates the previous standard. 10:44:53 AM REPRESENTATIVE JOHNSON asked whether salmon always spawn in the same area. REPRESENTATIVE SEATON responded that spawning areas are identified by the Alaska Department of Fish & Game (ADF&G) and are not extremely variable. The fish tend to return to the same area that has gravel and upwelling waters. 10:45:46 AM REPRESENTATIVE JOHNSON further asked whether water temperature is a factor. REPRESENTATIVE SEATON answered that water temperature varies year to year, and with salmon, ADF&G has surveys that indicate the established spawning areas. Some species, such as pink salmon, are more mobile and may invade a new area. 10:47:05 AM REPRESENTATIVE JOHNSON observed that ADF&G may determine that there has not been an invasion because the fish have been in a certain area years before. He said, " ... to get to the point of my questioning, are we talking about eliminating a mixing zone, anywhere on a river that's a potential spawning zone, based upon the invasion ...? Are we basically excluding any place that could ever potentially be a spawning zone in a river?" REPRESENTATIVE SEATON said no. An application for discharge will require findings to determine whether the area is a spawning area and the permit will be granted, or not, based on that finding. 10:48:21 AM REPRESENTATIVE JOHNSON expressed his belief that the legislation leaves open to interpretation "is it a spawning zone, was it a spawning zone, is it going to be a spawning zone?" His primary concern is that this bill eliminates basically any habitat that could potentially be a spawning zone. 10:49:03 AM REPRESENTATIVE SEATON explained that when a permit is considered, ADF&G determines whether the area is a spawning area. 10:49:31 AM LYNN KENT, Director, Division of Water, Department of Environmental Conservation (DEC), clarified that the cruise ship law did not affect the water quality standards, but addressed effluent levels. However, HB 46 does make changes to the water quality standard, because the Environmental Protection Agency (EPA) views the mixing zone regulations as a part of the water quality standards. She then deferred to testimony from the Department of Law (DOL) on the EPA process. 10:50:37 AM CAMERON LEONARD, Senior Assistant Attorney General, Natural Resources Section, Civil Division (Fairbanks), Department of Law (DOL), advised the committee the bill would require EPA approval through a process governed by federal regulations. He directed attention to his written response to "Mixing Zone Bill Questions, Our File No. 665-09-0019," dated 2/11/10, and provided in the committee packet. 10:51:13 AM REPRESENTATIVE SEATON referred to the letter response and pointed out that Section 303(c)(2)(B), which is cited in the letter, is specific to toxic pollutants and does not apply to the mixing zone requirements. Furthermore, Sections (c)(3) and (4) pertain to EPA's approval and disapproval process; thus, although it would be good to put these things in findings, pollutants, mixings zones, and the EPA process are different topics. 10:52:03 AM MR. LEONARD disagreed, and said that anytime DEC promulgates any water quality standard it does go through the same federal approval process. The applicable requirements of the CWA are Sections 303(c)(1) and (c)(2)(A), and are not limited to toxins, but apply to any water quality standard. REPRESENTATIVE SEATON opined the new existing standards have not been approved by EPA; however, the standards in the bill have been approved. 10:53:08 AM REPRESENTATIVE MUNOZ observed Mr. Leonard's letter indicates an analysis occurs before a change is made. She read from page 3 [original punctuation provided]: Federal regulations require that a state seeking EPA approval of a proposed revision to a water quality standard submit the following information: analyses conducted to support the standard; an explanation of the scientific basis for the standard; and certification by the Attorney General or other legal authority this it was duly adopted. ... the sponsor of a bill proposing a change to an existing standard should make the first two items available to the committees considering the bill, and to the public, before the bill is enacted. 10:54:07 AM MR. LEONARD further explained that these requirements can be found in federal regulation 40 Code of Federal Regulations (CFR) Section 131.6. The regulation lists what the state is required to submit to EPA in support of a water quality standard project and there is a separate regulation for governance of public hearings. Mr. Leonard advised these requirements "would be triggered by this bill, just as they are triggered every time DEC promulgates water quality standards as regulations." 10:54:57 AM REPRESENTATIVE SEATON reiterated that the water quality standards are in place and the new ones are those being applied for; furthermore, the prohibition on the pollution of mixing zones in spawning streams has been in place before. The authority [for this] has been previously adopted in state law. 10:55:38 AM CHAIR EDGMON noted he represents a fishing district that has concerns about a nonrenewable resource encroaching on its valuable fishery, and stated his support for the bill. He opined the bill warrants passage to another committee to continue the discussion during this legislative session. 10:57:01 AM REPRESENTATIVE BUCH moved to report HB 46 out of committee with individual recommendations and the accompanying fiscal notes. 10:57:13 AM REPRESENTATIVE JOHNSON objected. He said that the committee should not move a bill in order for more discussion, but only if the committee feels it is good policy and should become law. During a 90-day session, committees must start making policy decisions, instead of the tendency to "move every bill to finance, or every bill to judiciary, or every bill to resources." 10:58:39 AM REPRESENTATIVE MILLETT said she would not vote for the bill because she did not think there is a current deficiency in water regulations; in fact, the legislation is far-reaching with unknown implications to EPA and water quality standards. Alaska already has a burden of federal policies on resource extraction; furthermore, DEC has "done a great job." 10:59:55 AM REPRESENTATIVE JOHNSON suggested the committee table the legislation because of the need for further information. 11:00:17 AM REPRESENTATIVE BUCH objected and maintained his motion to move the bill. 11:00:30 AM The committee took an at-ease from 11:00 a.m. to 11:02 a.m. 11:02:59 AM REPRESENTATIVE JOHNSON made a motion to table the bill. 11:03:25 AM REPRESENTATIVE BUCH objected. 11:03:46 AM CHAIR EDGMON offered the floor to Representative Buch. 11:03:56 AM REPRESENTATIVE BUCH said that HB 46 is restorative legislation. 11:04:36 AM A roll call vote was taken. Representatives Johnson, Munoz, Keller, and Millett voted in favor of tabling HB 46. Representatives Edgmon, Kawasaki, and Buch voted against it. Therefore, HB 46 was tabled in the House Special Committee on Fisheries by a vote of 4-3.