HB 85-MIXING ZONES/SEWAGE SYSTEMS  5:49:56 PM CHAIR THOMPSON announced that the final order of business would be HOUSE BILL NO. 85, "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." 5:52:28 PM REPRESENTATIVE PAUL SEATON, Alaska State Legislature, presented HB 85, paraphrasing from the sponsor statement, which read as follows [original punctuation provided]: A water discharge permit is a privilege to use our public water. Alaska waters receive varying amounts of pollution under the parameters of discharge permits as specified by the Department of Environmental Conservation. Mixing zones are areas permitted in a water body surrounding or downstream of a discharge where state water quality standards may be exceeded while the effluent plume is diluted by the receiving water. Current regulations allow freshwater spawning areas to be designated as mixing zones if salmon are not actively spawning (laying eggs) at the time of wastewater discharge and allows a mixing zone in the area even while other species are laying eggs. HB 85 would change that regulation to prevent discharge of pollutants into any freshwater spawning area of the species identified on the statutory list if they spawn in nests. HB 85 is also a public right-to-know bill. It seeks to create accountability by allowing the public to have clear and easy access to information regarding the amount and nature of pollutants that are discharged under permit into Alaska water. HB 85 allows the public to be involved if a commercial sewage lagoon is expanded by more than 50 percent of its originally permitted size. Current law doesn't adequately provide opportunity for public awareness and involvement in a comment process for the expansion of commercial sewage containment facilities. 5:57:03 PM REPRESENTATIVE HERRON queried whether HB 85 will, or may, grandfather in existing waste water facilities that have mixing zones, such as an unpermitted village wastewater mixing zone. REPRESENTATIVE SEATON responded that existing facilities will be grandfathered in. 5:58:05 PM REPRESENTATIVE MILLER questioned whether statute exists regarding what constitutes water pollution, or if HB 85 establishes a definition. REPRESENTATIVE SEATON said that the water quality standards, established by the state, are used for determining amounts and levels of discharges that can be permitted. He noted that the bill specifies exceptions for streambed disturbance, water turbidity, and private sewage systems. The mixing zone permit designates discharge concentrations and identifies the areas of a discharge plume where water quality standards must be met. 5:59:10 PM REPRESENTATIVE AUSTERMAN recalled a situation where a permitted discharge was allowed into a stream that did not initially host a salmon run but later became a spawning area. REPRESENTATIVE SEATON acknowledged that this concern arose when a manmade wastewater canal, in Valdez, had a pink salmon run establish a spawning area, jeopardizing the facilities ability to continue discharging, under an early version of the bill. However, HB 85 addresses freshwater discharges only, and exempts artificial channels, or settling ponds invaded by a listed spawning species. 6:01:58 PM LYNN KENT, Director, Division of Water, Department of Environmental Conservation (DEC), stated official opposition to HB 85, and said the bill goes beyond what is necessary to protect fish. She directed attention to the committee packet and the written testimony provided by DEC [dated March 29, 2011]. 6:02:55 PM REPRESENTATIVE HERRON referred to the DEC testimony, page 2, paragraph 2, and read: While these protections are not necessary from a scientific perspective ... REPRESENTATIVE HERRON surmised and asked: It's not scientifically necessary to protect anadromous salmon spawning streams from mixing zones. So, what is your scientific evidence that supports this statement. 6:03:30 PM MS. KENT answered: You don't need a flat out prohibition on mixing zones in spawning areas for any fish, including salmon, although DEC regulations do prohibit mixing zones in salmon spawning areas. We say that because there are certain contaminants that don't have a negative effect on fish; fecal coliform is a good example of that. ... A fecal coliform mixing zone ... wouldn't have any impact on salmon or spawning salmon. ... We did, in our DEC regulation revisions for mixing zones, go ahead and retain the prohibition on mixing zones for salmon spawning areas more for the public perception issue than because there was a risk to salmon from authorized mixing zones. 6:04:34 PM REPRESENTATIVE MILLER directed attention to the DEC written testimony, page 1, and read: Some pollutants cannot be reported in terms of "amount", such as fecal coliform, radioactivity, and turbidity. REPRESENTATIVE MILLER asked how these pollutants are measured. MS. KENT responded that the water quality standards are usually based on a concentration of contaminant in the water body. It is not the measure of discharge, but the resultant concentration, which is considered. The water quality standards are based on micrograms per liter often referred to as parts per million or trillion. 6:06:16 PM REPRESENTATIVE AUSTERMAN stated his understanding that DEC prefers internal regulation to statutory law to govern this issue. MS. KENT explained that regulations, adopted in 1975, prohibited mixing zones in anadromous fish spawning areas. The regulations were changed in 2006 to allow mixing zones in non-salmon spawning areas. REPRESENTATIVE AUSTERMAN argued that if DEC is already following the parameters under regulation why would the department object to having statute reflect the same language. MS. KENT said that the bill goes beyond what is in current regulation. REPRESENTATIVE AUSTERMAN referred to the DEC written testimony, statement 5, and asked whether satisfactory, departmental action has been taken on this point. [Statement 5 reads: HB 85 would prohibit mixing zones that have become a fish spawning area unless the discharge was from a public or private domestic wastewater facility.] MS. KENT answered yes. 6:09:48 PM REPRESENTATIVE HERRON referred to the DEC testimony document, statement 4, which states that it is not necessary to protect non-salmon species, from mixing zones, because they aren't economically important. He said: You don't recognize subsistence [use] as an economically important activity. And smelt are a major food/prey species for salmon, and ... help support healthy salmon stocks. They aren't economically important from that perspective. MS. KENT maintained that a flat out prohibition on mixing zones in non-salmon spawning areas is not necessary. A nineteen part requirement check list is necessary to obtain a permit, which considers all of the aquatic life in a stream. 6:11:37 PM REPRESENTATIVE AUSTERMAN queried whether documented cases exist regarding domestic or industrialized discharge, which this bill might help. MS. KENT said that there are mixing zones that are authorized on a temporal basis, allowing discharge into a stream as long as fish are not present, and the bill would restrict these discharges. CHAIR THOMPSON opened public testimony 6:14:18 PM BRIAN KRAFT, Lodge Owner, stated support for HB 85, and said visitors expect to fish in unpolluted waters. Because of this expectation, he said, charter operators are altering the type of motors used on the river boats to minimize oil discharge. The waterways should be kept as pristine as possible, as fishery economics depends on the perception held by the public. Additionally, there is a continuous cycle that needs to be supported for the incubation of spawning fish. 6:16:57 PM BRENDA DOLMA, stated support for HB 85, and said it is important to protect the water and the perception that Alaskan salmon have clean rearing conditions; an important image to maintain in perpetuity. 6:18:55 PM MICHAEL SATRE, Executive Director, Council of Alaska Producers, testified in opposition to HB 85, paraphrasing from a prepared statement, which read as follows [original punctuation provided]: The Council of Alaska Producers is a non-profit trade association representing the producing large metal mines and developmental projects in the state of Alaska. One of the many challenges of developing communities and projects within our great state is managing the impacts that we have on our aquatic resources. Every community and camp generates some sort of wastewater and most, if not all, projects have some sort of process or contact water. If this water is to be discharged back into the environment, there are very strict water quality standards that must be met in order to avoid impacting our surface waters. Unfortunately, even with the best available treatment technologies, it is still possible that treated water may not meet our very stringent standards at the point of discharge. This is why the State of Alaska, with authority granted by the Clean Water Act and the EPA, allows for the permitting of mixing zones in order for wastewater that is slightly out of compliance to be diluted into a permittable discharge. These zones, whether they are in fresh or saltwater, are permitted through a rigorous scientific process and are truly a method of last resort to allow communities and projects to meet water quality standards. In freshwater, the requirements for a mixing zone are even stricter. Most importantly, if a proposed mixing zone contains a spawning area for any of the five Pacific Salmon species ... it cannot be permitted! Mixing zones in freshwater spawning areas of other fish must: Meet statewide water quality standards plus other conditions imposed by ADF&G and DEC. Have an approved mitigation plan. Not adversely affect the capability of an area to support future spawning, incubation and rearing activities. Existing mixing zone regulations allow our communities and our projects to meet our strict water quality standards and ensure that we can strike a balance between developing our state and protecting our environment. HB85 will disrupt this balance by introducing a blanket prohibition on allowing mixing zones where any anadromous fish spawn or where the resident fish redds are located for the long list of fish species listed in the proposed AS.46.03.065(2). This lack of flexibility will place additional, possibly insurmountable, hindrances on the development of our state. CAP urges you to not pass the bill out of committee. 6:24:20 PM REPRESENTATIVE SEATON clarified that the bill only applies to freshwater, and excludes saltwater zones. Neither does it apply to turbidity mixing zones, and referred to the bill, page 3, line 6, to paraphrase from the language, which read: (c) The prohibition in (a) of this section does not apply to a turbidity mixing zone for a suction dredge placer mine or a mechanical placer mine that the department finds, with the concurrence of the division of the Department of Fish and Game that has responsibility for fish habitat, will not adversely affect the present or future spawning, incubation, or rearing of fish included under (a) of this section. REPRESENTATIVE SEATON pointed out that mixing zones are allowed, during spawning times for a list of species, which includes: Arctic char, Dolly Varden, lake trout, landlocked coho, king, and sockeye salmon, rainbow trout, sheefish and whitefish. These are important subsistence species in Alaska's inland waters. He said: I think that DEC's comments that, "yes we have an allowance, or grandfathering, for the wastewater discharge," but they would like the ability to do industrial pollutants, or industrial discharges that are above the level on those spawning areas, that's what I wish to say no to. ... Development should occur in a way that protects our renewable resources, and our fish species are important to all Alaskan residents. REPRESENTATIVE SEATON directed attention to the committee packet and the chart in the DEC handout titled, "Mixing Zones & Spawning Areas," to point out that the "old" 2003 regulations are what the department currently enforces, and align with the provisions proposed in HB 85. The 2006 regulations have not been approved by the EPA (Environmental Protection Agency), and the chart should be read bearing this in mind. He explained that, since the original adoption in 1975 and through lack of regulatory or statutory action, interpretation of the term "spawning area" has changed. The department has written policy and adopted regulations allowing higher levels of pollution, based on the reinterpretation. The idea that pollution discharges will not have future effects on an area where fish spawn is dubious, he cautioned. He asked the committee to focus attention on particular discharges, such as copper. The meaning of concentration and the scope of a mixing zone are also important to understand. He stressed: I know DEC says ... "our [regulations] say we're not going to influence future [conditions]." But unless we know what those amounts are that are going out there over time, then we're not going to really be able to understand what the potential impact is. That's what this bill is trying to get to: to make sure that our renewable resources ... are protected. 6:29:56 PM REPRESENTATIVE HERRON asked for comment on the testimony statement that, "No problem has been identified that this bill is meant to correct." REPRESENTATIVE SEATON replied that it is difficult to determine to which part of the bill the statement refers. However, he said, HB 85 corrects the public having no knowledge of what chemicals are being discharged and concentrating over time in a particular system, by requiring understandable disclosure. Also, DEC has allowed a vastly increased sewage lagoon discharge, in a residential area without public notice or a right to comment. Thirdly, he said mixing zones in areas of subsistence fish populations are a problem. He said: Can I go out and show you a fish kill? I want to prevent that from ever happening, just like the regulations were before 2003, that that was not allowed, and I don't think it should be allowed now. I think that development should go forward, but we want responsible development ... done in a way that we never have those problems where I can come to you and say, 'Here's a picture of a big fish kill.' We never want to see that, and that's what this bill is hoping to accomplish. 6:31:56 PM CHAIR THOMPSON announced that HB 85 would be held.