HB 185-EXEMPT DISCHARGES FROM USE OF MUNITIONS  2:15:14 PM CO-CHAIR SEATON announced that the next order of business is HOUSE BILL NO. 185, "An Act relating to an exemption from authorizations that may be required by the Department of Environmental Conservation for the firing or other use of munitions on active ranges." 2:16:03 PM REPRESENTATIVE TAMMIE WILSON, Alaska State Legislature, noted that she would like to address a proposed amended version of HB 185. CO-CHAIR FEIGE moved to adopt the proposed committee substitute (CS) for HB 185, Version 27-LS0506\E, Bullard, 3/14/11, as the work draft. REPRESENTATIVE P. WILSON objected for discussion purposes. CO-CHAIR SEATON requested an explanation of the differences between the original bill and Version E. REPRESENTATIVE T. WILSON replied that the change is necessary because a long federal vetting process was accomplished and Version E is the version that they agreed to. REPRESENTATIVE P. WILSON removed her objection. There being no further objection Version E was before the committee. 2:17:30 PM REPRESENTATIVE T. WILSON spoke as follows: In 2008 the state sought EPA approval of its Clean Water Act program. From this, the statutory exclusion for active military ranges under Title 46 was amended so that now it excludes the firing or other use of munitions in training activities conducted on active ranges, including active ranges operated by the Department of Defense or military agencies, unless it results in the discharge into waters of the United States. ... HB 185 clarifies section (e)(7) such that it cannot be misinterpreted to restrict military exercises on ranges other than instances where the federal Clean Water Act [Federal Water Pollution Control Act] would apply. REPRESENTATIVE T. WILSON added that HB 185 is a collaboration between the Department of Environmental Conservation (DEC) and the Department of Military & Veterans' Affairs (DMVA). She deferred to DMVA and other military experts to provide further technical information. 2:19:29 PM REPRESENTATIVE GARDNER understood that the purpose of the bill is to ensure that military exercises are not restricted except when it would result in discharge of waste into federal waters. REPRESENTATIVE T. WILSON said her understanding is that right now when training exercises take place and munitions end up in the waterway there is a potential for a lawsuit to happen, and HB 185 would prevent such lawsuits. 2:20:26 PM MAJOR GENERAL THOMAS KATKUS, Commissioner, Department of Military & Veterans' Affairs (DMVA), noted that he also serves as the Adjutant General for the Alaska National Guard and that today he is representing the State of Alaska. He said the military is well supported by Alaska's communities and the state is a good place for military operations and training. He was approached some time ago about a potential problem in the training, in the development of areas like the Joint Pacific Alaska Range Complex. The statutes covering clean water constraints in Alaska are more restrictive and/or vague, and can be interpreted more restrictively, than the federal requirements. The bill would not reduce the constraints or make it weaker than the federal requirements; HB 185 would make the Alaska statute clear so that someone taking the military to task in a training area does not have the advantage of playing in those vague areas. The bill would clarify that the constraints of military development in training areas are to be held to the federal standards. The insertion specifies exactly what those standards are going to be. 2:22:08 PM CO-CHAIR SEATON asked whether the problem has been with white phosphorus shells, lead, or another issue. MAJOR GENERAL KATKUS replied that the issues would be almost any by-product that comes off of the ordinance used in the training for military; so, those military ordinances could be covered that affects the water. It would clarify what the constraints are on the environment. 2:22:53 PM CO-CHAIR SEATON recalled a court order requiring the cleanup of white phosphorous due to its impact on migratory waterfowl. He inquired whether there would not have been an order for white phosphorus clean up had the provisions of HB 185 been in place. MAJOR GENERAL KATKUS responded that the U.S. military is a very good steward of the environment and would have cleaned up the environment whether this bill had been in effect or not. As the military looks at developing areas, it cannot predict exactly what areas will be challenged in court for constraining the training. The bill would clarify exactly what in the clean water laws can be used and narrows the scope of different groups that may not support training range development. He said it would not be a lesser standard. 2:24:19 PM MCHUGH PIERRE, Deputy Commissioner, Department of Military & Veterans' Affairs (DMVA), said HB 185 would not at all take away from the cleanup or the responsibility of the military, any agency or department thereof, of taking care of the lands in Alaska. The white phosphorus in the Eagle River drainage is absolutely going to be cleaned up and was cleaned up. The specific language that would be replaced is "of the United States" which is very vague because there is a lot of water of the United States. He said DMVA worked with the lawyers at the Department of Law who work on DEC issues, as well as with the environmental section of the Department of Defense, to narrow it down specifically to the waters mentioned in 33 U.S.C. 1251 - 1376. He said there is currently discharge into water in certain training areas and that all will be cleaned up, is cleaned up, and will be cleaned up in the future; it is just a matter of defining what water is in each training area. 2:26:32 PM CO-CHAIR SEATON informed committee members and the public that HB 185 will be held over to give people a chance to review it. He then continued with agency testimony. 2:27:18 PM MAJOR JUSTIN TRUMBO, Regional Environmental Coordinator, U.S. Air Force, Region X, U.S. Department of Defense (DOD), said he is the chief environmental legal counsel for state law matters that affect the Department of Defense. He offered support for HB 185 on behalf of the military services in Alaska. He thanked Representative T. Wilson for her efforts to promote Alaska's continued partnership with the Department of Defense. The Department of Defense has a long and proud history of cooperation. Alaska's military installations are vital to DOD's worldwide mission. In the spirit of cooperation DOD has worked with the Department of Environmental Conservation, the Office of the Attorney General, the U.S. Environmental Protection Agency, and General Katkus's staff and other stakeholders to develop this amendment. MAJOR TRUMBO noted that the statute that would be amended prohibits the disposal of solid or liquid waste into waters or onto lands of the State of Alaska without authorization by the Department of Environmental Conservation. This statute was amended in 2008 when Alaska sought the U.S. Environmental Agency's approval of its clean water program. As a result, the statutory exclusion for military ranges was modified so that it now excludes the firing or other use of munitions unless it results into a discharge into water of the United States. It is the phrase "discharge into waters of the United States" that has created some confusion and HB 185 would eliminate that. The bill would not repeal any protections under federal law and will help ensure that military ranges can be used and will be used in accordance with federal law. Additionally, it would benefit the State of Alaska in that federal and Alaska state agencies agree that this amendment would not jeopardize continued U.S. Environmental Protection Agency approval of Alaska's Clean Water Act program. 2:30:15 PM MAJOR TRUMBO said the benefit of the proposed amendment specifically to the Department of Defense will ensure that questions regarding the application of Alaska law to military ranges are determined in accordance with the federal Clean Water Act. While there may be uncertainty as to how that federal Clean Water Act program might apply to military ranges, the proposed amendment will not preclude agencies, the military, the U.S. Environmental Protection Agency, or private parties from making appropriate arguments under the federal statute. But unless amended, the application of the "Alaska Clean Water Act" to military ranges might be inconsistent with the application of clean water programs to the military in other states. MAJOR TRUMBO pointed out that because DEC plans to apply its clean water program to munitions starting October 2011, the Department of Defense strongly supports passage of HB 185 this legislative session. The amendment provided by HB 185 will help ensure that Alaska's continuing capacity to host sustainable military readiness training for outstanding airman, soldiers, and sailors is not jeopardized. 2:31:24 PM CO-CHAIR SEATON related that he was told HB 185 would not apply to civilian or other ranges. However, page 2, line 17, of the bill, states that the exemption is for "the firing or other use of munitions in training activities conducted on active ranges, including active ranges operated by the United States Department of Defense...." This language appears to mean any range, whether it is local, state, or sport, if it is an active training range because the language says including DOD ranges rather than limited to DOD ranges. He requested that this be investigated and the committee be informed as to what the military needs and wants to ensure that the bill addresses only the areas that are intended to be addressed. MR. PIERRE suggested this question be posed to the Department of Law to explain why the wording is as it is. He said his understanding is that this part of the statute for including other ranges has not changed, but where the new language was put in and why it was put in was to impact ranges operated by the Department of Defense or a U.S. military agency. 2:33:37 PM CO-CHAIR SEATON maintained that it is all the ranges that would be modified, because it has been left in that same statute, and not just a DOD range. He reiterated his question to the Department of Law. LINDSAY WOLTER, Assistant Attorney General, Environmental Section, Civil Division (Anchorage), Department of Law, replied she has the same understanding as Co-Chair Seaton that it would apply to both military active ranges and other active ranges. CO-CHAIR SEATON said that since this is not the intention related to him by the sponsor, he would like to request that the sponsor get it clarified. 2:34:53 PM REPRESENTATIVE GARDNER understood that HB 185 would effectively give primacy to federal regulations for discharge to water for munitions and active training ranges. MR. PIERRE replied no, the goal is to "specify very clearly in our approving process what waters of the United States we are referring to." Thus, it enables reference to a specific section when there is discussion about development of future military ranges in the state of Alaska. This way there is not a wide swath of questioning that would or would not allow active military use of future ranges - not existing ranges - to be permitted. 2:35:58 PM CO-CHAIR SEATON directed Representative Gardner's question to the Department of Environmental Conservation. LYNN KENT, Director, Division of Water, Department of Environmental Conservation, regarding what ranges are included, explained that long before the Department of Environmental Conservation (DEC) sought primacy for the permitting program from the U.S. Environmental Protection Agency (EPA), there was already legislatively mandated state policy to exempt training ranges, including military ranges, from the requirements to get a state discharge permit. When DEC took on primacy for the federal program, the state statute was revised to include the phrase "unless it results in a discharge into waters of the United States" because in certain circumstances ranges may require a permit under the Clean Water Act. However, DEC has learned that that language could have the effect of requiring a state permit under state law even if it was not required under the Federal Water Pollution Control Act (Clean Water Act). The new language being proposed today would very clearly exempt training ranges and military ranges from the permitting requirement that was similar to what was under state law unless it is required by the Clean Water Act. This proposed language is consistent with the Clean Water Act and consistent with the U.S. Environmental Protection Agency's approval of DEC's program and would not result in any adverse impact on the program that DEC is operating right now under the EPA primacy. CO-CHAIR SEATON requested Ms. Kent to send definitions and descriptions of the waters being talked about and what would and would not be exempt. 2:38:51 PM REPRESENTATIVE P. WILSON asked for the definitions of an active range and an inactive range. In response to Co-Chair Seaton, she confirmed that she is asking about any active range and whether it is different for a DOD range versus private range. MR. PIERRE replied that as the military looks to expand its role in Alaska for training and to provide a more unique joint force opportunity in the state, the Department of Military & Veterans' Affairs is looking at the state's laws to determine how to develop new ranges and what are the causes for concern. An active range is one that is currently being used and will be used in the future. There are ranges that have been abandoned and the DMVA has received funding from the National Guard Bureau to clean up abandoned National Guard ranges. Clean up includes removing the lead bullets and contaminated dirt and DEC makes sure that this takes place. The bill is not for abandoned ranges or ranges that will be re-used because that is a whole new permitting process; it is for active ranges that are currently being used and will be used in the future. 2:41:04 PM REPRESENTATIVE P. WILSON inquired whether all the ranges being talked about are military. MR. PIERRE responded that DMVA's concern is for military ranges. However, as pointed out by Co-Chair Seaton, the language looks to read that civilian ranges could be impacted as well. The department will work with the co-chair and DEC to make sure it does everything right and meets the intent of the language. CO-CHAIR SEATON stated that the Department of Law will be requested to send the committee a written definition of an active range and whether a permit is needed before using a civilian range. CO-CHAIR SEATON held over HB 185.