HB 80-CRUISE SHIP WASTEWATER DISCHARGE PERMITS  1:02:51 PM CO-CHAIR SADDLER announced that the first order of business is HOUSE BILL NO. 80, "An Act relating to the regulation of wastewater discharge from commercial passenger vessels in state waters; and providing for an effective date." CO-CHAIR SADDLER noted that Amendments 6 and 7, distributed at the committee's 1/28/13 meeting, have been replaced by amendments 6.1 and 7.1. He requested Representative Tarr to continue her discussion of Amendment 5, labeled 28-GH1987\A.6, Nauman, 1/26/13, which she had moved for adoption on 1/28/13 and to which Representatives Johnson and Hawker, and Co-Chair Feige had objected. 1:03:42 PM REPRESENTATIVE TARR resumed her discussion of Amendment 5, which read: Page 3, following line 22: Insert new bill sections to read:  "* Sec. 5. AS 46.03.463(h) is amended to read: (h) The provisions of (a) - (f), and (i) of this section do not apply to discharges made for the purpose of securing the safety of the commercial passenger vessel or saving life at sea if all reasonable precautions have been taken for the purpose of preventing or minimizing the discharge. * Sec. 6. AS 46.03.463 is amended by adding a new subsection to read: (i) Except as provided in (h) of this section or AS 46.03.462(c), a person may not discharge sewage, graywater, or other wastewater from a commercial passenger vessel into the marine waters of the state that has a copper concentration of more than two parts per billion for more than 10 minutes with a dilution factor not greater than 50,000." Renumber the following bill sections accordingly. REPRESENTATIVE TARR said that given the scientific research and concern about copper levels, Amendment 5 would be appropriate because it would set in statute a copper level of two parts per billion (ppb) rather than the current level of three ppb. While appreciating the Department of Environmental Conservation (DEC) might prefer doing this in regulation, she said Amendment 5 would give the public peace of mind that the state is doing what it can to protect its salmon. 1:04:43 PM LYNN TOMICH KENT, Deputy Commissioner, Office of the Commissioner, Department of Environmental Conservation (DEC), stated DEC has concerns about Amendment 5 because it gets into the types of very specific permitting conditions and standards that the department does by regulation and permits. It is not based on science; DEC's current water quality criteria for protection of marine aquatic life are based on the most current science regarding the effects of copper on marine life. She said the two ppb limit in the amendment is likely based on some fairly recent studies that identified a two microgram per liter level that was discussed in studies on salmonids in fresh water and the behavioral impacts of low levels of copper on the behavior of the fish. She said the researchers in that study have indicated that their work is not applicable to the marine environment, for which there are not yet any studies, because of the differing buffering capabilities in marine waters and because researchers have not looked at how the physiological changes that take place in fish when they move from saltwater to freshwater. More research is being done in this area, she continued, and DEC will be look at the latest research again next year when more information is available. She said DEC does update its water quality standards when new and better research drives a change in those standards. Ms. Kent added that Amendment 5 would essentially prohibit discharges when a vessel is stationary, and last year only seven vessels were permitted to discharge while they were stationary. Implementing the amendment would be difficult because the vessels do not have the ability to continuously monitor for copper. It is done in a laboratory setting, so a ship would not know precisely when its levels dipped below the two ppb. Also, the 10 minute limitation would be difficult to figure out because the amendment does not describe how often a vessel could have that 10 minute window to discharge. 1:07:24 PM CO-CHAIR FEIGE recalled Commissioner Hartig stating during his original presentation that the limits are set by the U.S. Environmental Protection Agency (EPA). MS. KENT confirmed this as correct, adding that for most of its standards DEC adopts federal developed criteria. In further response, she confirmed there is an extensive process for setting those particular limits that includes quite a bit of review, oversight, and opportunities for entities to weigh in. She said the standards are set through a significant effort looking at the toxic effects on a multitude of different types of organisms and plants. The EPA generally does those studies or relies on studies done by others and adopts criteria that are suitable for the country. Alaska normally adopts the criteria developed by EPA because it does not have the resources to do that kind of independent study work. Changing Alaska's water quality criteria is an extensive process that starts with a public notice asking people to come forward with any new studies or research that would affect the state's water quality standards. The department then sifts through that information to determine whether there is sufficient science to change criteria and, if so, that is proposed as a regulation change which also undergoes a public review process. Once that process is done, and assuming DEC adopts the revised criteria, it must be approved by EPA before the department can use it. 1:09:25 PM REPRESENTATIVE SEATON, noting that HB 80 would do away with the Cruise Ship Wastewater Science Advisory Panel ("Science Advisory Panel"), inquired how much data and what process would be necessary for changing the EPA standard, which is set country- wide for a multitude of plants and animals, to make the state's regulatory process override for salmon. MS. KENT answered that the Science Advisory Panel did not look at the water quality standards to determine whether it thought them appropriate or protective due to the process required for revising the standards. However, what DEC would look for through that public process is peer reviewed scientific research that is applicable to the standards. So, if the standards look at chronic effects and acute effects, and if there was research applicable to marine waters that demonstrated an olfactory behavioral problem with salmon that could affect their survivability and reproductive ability, then DEC would rely on that standard to propose a new water quality criterion. This new criteria would then go to public review and notice, and then it would go to EPA for final approval. 1:11:37 PM REPRESENTATIVE TUCK asked how tests are currently conducted for determining copper levels. MS. KENT replied DEC requires the cruise companies to test for copper and the other metals, but it is a sample that is taken and then transferred to a laboratory for analysis. Over 800 monitoring samples from cruise ships have been taken over the last 5 years. REPRESENTATIVE TUCK inquired what would have to be done differently if the standard was changed. MS. KENT responded the monitoring and analytical requirements for how a sample is tested would remain the same. If the water quality standard changed or a permit standard changed - an effluent limit changed - DEC would compare the results from the analysis at the laboratory to the permitted amount. 1:12:51 PM REPRESENTATIVE SEATON said he did not understand how copper levels could be measured if the standard is changed from end of pipe to a mixing zone while underway, given that the edge of such a mixing zone cannot be determined. MS. KENT answered that for any permitted discharge with a mixing zone, modeling is done to calculate the size of the mixing zone. This is done in addition to all the other criteria that are required for DEC to approve a mixing zone. The department looks at the past data and the concentrations of the contaminant and employs the same models that are used throughout the country to look at dispersion of that contaminant in a water body with certain characteristics. Mixing in the water body, freshwater lenses, other inputs, currents, and incoming and outgoing tides are looked at to calculate how big that area might be where the quality standard would be exceeded based on the level that is being discharged. Many of DEC's permits with a stationary component require the permittee to monitor the edge of the mixing zone to verify those models and, in most cases, the models are pretty good at predicting the distance needed from the discharge to meet the water quality standard. For a cruise ship that is underway with a 50,000:1 dilution, measurements in the water body would be unable to identify concentrations that could be attributed to the vessel because of the vast amount of dilution in such a short period of time. 1:15:25 PM REPRESENTATIVE SEATON surmised that what is being said is that the size of the mixing zone will be expanded to whatever dilution ratio the model indicates is needed for meeting the water quality standard. So, if science said that copper is affecting the olfactory sense of salmon, the model would be changed to double the dilution factor to half the concentration and therefore the problem has been taken care of. MS. KENT replied that the requirements for a mixing zone must be met with every renewal of a permit, most permits being on a five-year cycle. If a DEC standard changed during the life of a permit, the permittee would have to demonstrate again all of the requirements in order to be authorized for a mixing zone; one of those requirements is that DEC can only authorize a mixing zone that is as small as practicable. At that permit renewal cycle DEC would again look at whether a vessel is using the best technology that it can. So, if a standard changes and becomes more stringent, that does not automatically mean the vessels will get a bigger mixing zone. 1:17:26 PM REPRESENTATIVE TUCK understood the test uses a dye that is tracked; however, a concern is that metals may not have the same floating or mixing properties as dye. He inquired whether modeling has been done to determine similarity. MS. KENT qualified she is not a modeling guru, but responded that DEC generally uses computer models to calculate the mixing and the dilution of a contaminant in a surface water body. She suggested that the aforementioned reference is to dye studies that DEC worked on with EPA, where EPA used a dye to verify that the dilution was as predicted by the models. She offered her belief that there was a very close correlation between what was modeled and what was actually found by those dye studies. 1:18:52 PM CO-CHAIR SADDLER noted that the standards proposed in the amendment of 2 ppb in 10 minutes and [a dilution factor not greater than] 50,000 are pretty precise. He asked the maker of the amendment how those numbers were arrived at. REPRESENTATIVE TARR answered that when she looked through the Science Advisory Panel's preliminary report, this was an evidence-based standard that was suggested would be appropriate. 1:19:29 PM REPRESENTATIVE TUCK inquired how deep below the water's surface the modeling goes for a "surface water body." MS. KENT replied "surface water" is the jargon used for oceans, rivers, streams - anything that is not ground water. Some of the state's dischargers, not cruise ships, discharge right at the bottom, some part way in the column, and so forth. The model looks at where in the water body is the discharge. 1:20:24 PM REPRESENTATIVE TUCK asked whether "at the bottom" is the bottom of the water body or the bottom of the ship. MS. KENT responded a shore-based facility may have its discharge pipe anchored to the bottom of the water body. A cruise vessel's discharge port is approximately a couple meters below the water surface. 1:20:50 PM REPRESENTATIVE TARR read the following from a scientific article [Environmental Toxicology and Chemistry, Vol. 22, No. 10, 2003, "Sublethal Effects of Copper on Coho Salmon: Impacts on Nonoverlapping Receptor Pathways in the Peripheral Olfactory Nervous System"][original punctuation provided]: Collectively, examination of these data indicates that copper is broadly toxic to the salmon olfactory nervous system. Consequently, short-term influxes of copper to surface waters may interfere with olfactory- mediated behaviors that are critical for the survival and migratory success of wild salmonids. REPRESENTATIVE TARR further noted that 49 wastewater violations occurred between 1999 and 2009 involving discharges of ammonia, copper, zinc, and a variety of others. To provide a sense of scale she pointed out that one cruise ship per day generates 21,000 gallons of sewage and 170,000 gallons of wastewater from sinks, showers, and laundry. So, the volume for 5 ships daily in Juneau's port is 100,000 gallons of sewage daily and 850,000 gallons daily of wastewater, which is something to be concerned and careful about. 1:22:12 PM REPRESENTATIVE JOHNSON maintained his objection to Amendment 5. A roll call vote was taken. Representatives Tarr and Tuck voted in favor of Amendment 5. Representatives Seaton, P. Wilson, Hawker, Johnson, Olson, Feige, and Saddler voted against it. Therefore, Amendment 5 failed by a vote of 2-7. 1:23:01 PM REPRESENTATIVE TARR moved to adopt Amendment 6.1, labeled 28- GH1987\A.8, Nauman, 1/28/13, which read: Page 1, line 4, through page 2, line 9: Delete all material. Page 2, line 10: Delete "Sec. 2" Insert "Section 1" Renumber the following bill sections accordingly. Page 2, line 25, through page 3, line 5: Delete all material and insert:  * Sec. 2. AS 46.03.462(e) is amended to read: (e) When issuing, reissuing, renewing, or modifying a permit required under (a)(1) of this section, the department may include effluent limits or standards less stringent than those required under (b)(1) of this section [FOR NOT MORE THAN THREE YEARS DURATION] if the department finds that a permittee is using economically feasible methods of pollution prevention, control, and treatment the department considers to be the most technologically effective in controlling all wastes and other substances in the discharge but is unable to achieve compliance with Alaska Water Quality Standards at the point of discharge. A permit under this subsection may not  extend beyond December 31, 2020. Page 3, line 6: Delete "new subsections" Insert "a new subsection" Page 3, lines 13 - 22: Delete all material. Page 3, line 23: Delete "46.03.462(f)," Objection was voiced by Representatives Johnson and Hawker. REPRESENTATIVE TARR stated she has been trying to find a way to strike a balance between the cruise ship industry and protecting Alaska's coastal waters and the coastal economies and fishing industry that rely on those waters. She said she has offered a number of amendments in the hope of meeting her comfort level, which has not happened. She said Amendment 6.1 would allow the cruise ship industry to continue working on meeting the water quality standards set in the 2006 Alaska Cruise Ship Initiative ("2006 Initiative"). Amendment 6.1 would extend the compliance period to December 31, 2020, allowing DEC to issue a 5-year permit and extend it all the way through 2020, allowing the copper issue to be revisited. 1:24:32 PM REPRESENTATIVE HAWKER maintained his objection to Amendment 6.1. A roll call vote was taken. Representatives Seaton, Tarr, and Tuck voted in favor of Amendment 6.1. Representatives Hawker, Johnson, Olson, P. Wilson, Feige, and Saddler voted against it. Therefore, Amendment 6.1 failed by a vote of 3-6. 1:25:24 PM REPRESENTATIVE TUCK moved to adopt Amendment 7.1, labeled 28- GH1987\A.9, Nauman, 1/28/13, which read: Page 2, line 25, through page 3, line 5: Delete all material and insert:  * Sec. 3. AS 46.03.462(e) is repealed and reenacted to read: "(e) When issuing, reissuing, renewing, or modifying a permit required under (a)(1) of this section, the department may only include the authorization of a mixing zone for a commercial passenger vessel if (1) that vessel employs an advanced wastewater treatment system that falls within the class of systems identified by the department under (k) of this section or employs other means of pollution prevention, control, and treatment that the department finds can achieve a quality of effluent that is comparable to that of one or more vessels employing an advanced wastewater treatment system; and (2) the permit prohibits the discharge of untreated sewage, treated sewage, graywater, or other wastewater within three geographical miles of the coastline of the state unless a discharge is made for the purpose of securing the safety of the commercial passenger vessel or saving life at sea and all reasonable precautions have been taken for the purpose of preventing or minimizing the discharge; in this paragraph, "coastline" has the meaning given to "coast line" in 43. U.S.C. 1301." Page 3, following line 6: Insert a new subsection to read: "(i) Under (e)(1) of this section, if a commercial passenger vessel employs an advanced wastewater treatment system that satisfies the requirements of (e)(1) of this section, the department shall find the commercial passenger vessel satisfies all state technology-based treatment requirements for authorization of a mixing zone." Reletter the following subsections accordingly. Page 3, line 15: Delete "(e)" Insert "(e)(1)" Objection was voiced by Representatives Johnson, Hawker, and Olson. 1:26:05 PM REPRESENTATIVE TUCK explained that if mixing zones are going to be allowed he would like to ensure that those zones are three geographical miles away from the coastline where a lot of human, plant, and mammal activity occurs. He said he did not propose a farther distance because that would eliminate any discharge within waters controlled by the State of Alaska. He shared that California has implemented no mixing zones within three miles of its entire coastline, a standard he thinks Alaska should have. However, he did not want to jump into that standard right away because the ships might not have holding tanks that would allow them to go out that far. REPRESENTATIVE TUCK pointed out that because of the shape of Alaska's coastline, three miles might create a "donut hole," or gap, where ships would go to dump, creating excessive dumping in one spot. Therefore, he moved to amend line 13 of Amendment 7.1 by deleting "three" and inserting "two" geographical miles. There being no objection, the amendment to the amendment was adopted. 1:28:41 PM REPRESENTATIVE SEATON understood that Amendment 7.1, as amended, would permit the discharge of wastewater that did not meet water quality standards. REPRESENTATIVE TUCK confirmed that this is correct. 1:28:53 PM REPRESENTATIVE P. WILSON asked how big the holding tanks are and how far from the coastline do these tanks allow the ships to go. CO-CHAIR SADDLER requested Ms. Kent to address the practical effects of Amendment 7.1, as amended. MS. KENT replied she does not have that data with her, but of the 28 or so large cruise ships that register to come to Alaska, 10 do not discharge in Alaska waters. These 10 ships either go outside [state waters] or discharge in a port facility. The rest have the holding capacity to go into outside waters. In further response, she confirmed that shore-based facilities have less stringent discharge requirements than do the cruise ships; therefore any cruise ship wastewater going through a shore-based facility would not be treated to as high a degree and would not be as clean in terms of the effluent. 1:30:27 PM REPRESENTATIVE P. WILSON inquired why, then, would cruise ships be allowed to discharge into municipal facilities. She surmised it would be better to allow the ships to discharge where they are at. MS. KENT responded DEC regulates the discharge from facilities, not who can discharge into a facility. Right now, DEC does not prohibit a cruise ship from discharging to a municipal wastewater treatment system. REPRESENTATIVE TARR pointed out that the ship's wastewater would be treated in the municipal wastewater treatment system instead of untreated wastewater from the ship being discharged [into the ocean]. MS. KENT added that the wastewater is treated at the municipal system, but the level of treatment it receives at the municipal treatment system is not as good as it would be if it were treated through the advanced wastewater treatment system onboard the cruise ship. 1:32:39 PM REPRESENTATIVE TARR noted that California has no mixing zones as well as no discharge in its coastal waters. She related that even treated sewage can contain pathogens, nutrients, and other contaminants that affect human and environmental health and economic productivity. REPRESENTATIVE TUCK stated that Amendment 7.1, as amended, is an attempt to work with the industry. He wants the cruise ships to be efficient with their cruises and does not want them to have to skip port facilities, so he is trying to ease into having no mixing zones close to shore. He added that with stationary port facilities the location is known, measurements can be taken, and location of the edges is known, whereas testing is not accurate for moving ships. He said there is a big difference between a traveling city and a stationary city; salmon can navigate around a stationary area. An easy solution would be allowing cruise ships to dump into municipal facilities where there is control. 1:34:24 PM REPRESENTATIVE JOHNSON maintained his objection. A roll call vote was taken. Representatives Tarr and Tuck voted in favor of Amendment 7.1, as amended. Representatives Johnson, Olson, Seaton, P. Wilson, Hawker, Feige, and Saddler voted against it. Therefore, Amendment 7.1 failed by a vote of 2-7. 1:35:25 PM CO-CHAIR SADDLER announced the bill is now before the committee. REPRESENTATIVE SEATON said HB 80 concerns him for several reasons, one being overlapping mixing zones from numerous ships using the same area for mixing zones. He said the 2006 Initiative stimulated DEC and the industry to go through a process of reducing toxins being put into Alaska's waters. The mixing zones will not be monitored and individual vessels will again be able to be lax like they were in the past, resulting in more toxic discharge and cumulative discharge in Alaska's waters. Amendment 2 [labeled 28-GH1987\A.3, Nauman, 1/26/13], which he put forward [on 1/28/13] and which did not pass, was significant in that it would have disallowed mixing zone cruise ship discharges in legislatively designated state critical habitat areas. While DEC has said it wants the ability to make that decision on its own, the decision is not the question. The question is whether the legislature is going to give its authority over to the administration to administratively make the decision to allow cruise ship mixing zone discharges into critical habitat. While he will not vote against moving the bill from committee, he said the bill does not have his support at this time for the aforementioned reasons. Additionally, extension of the current permit to allow science to catch up may have accomplished the stringent control of pollutants in state waters that was expressed in the 2006 Initiative. 1:38:44 PM REPRESENTATIVE P. WILSON asked whether HB 80 would lower the state's standards. MS. KENT replied, "No." 1:39:31 PM CO-CHAIR FEIGE said the cruise ship industry has been operating for about three years under a general permit that allows ships to discharge, but never once during discussion of the bill were any instances brought up as to actual problems with discharges while operating under this general permit. Arguments against the bill were not, in his opinion, convincing-enough scientific evidence to warrant any changes in the bill as presented. Regarding overall philosophy, he recounted that while he was training to be a military officer, the mantra was to never make a rule that cannot be enforced. The corollary here is to never make a rule that cannot be achieved. The scientific panel appointed by the legislature delivered a report saying that the advanced wastewater treatment systems are the best economically feasible technology available today and, more than likely, in the near future. The DEC is capable of tracking emerging technology, and for the time being the advanced wastewater treatment systems will satisfy the legislature's requirement that the state's waters stay as pristine as possible yet still allow commerce and tourism activity to continue. He said he will therefore be voting in favor of the bill. 1:41:47 PM REPRESENTATIVE HAWKER stated that passage of HB 80 will free up resources, therefore the bill should have a negative, rather than a zero, fiscal note. He asked for there to be truth in budgeting when resources are freed up; for example, DEC indicated earlier that the freed-up resources will be put to work doing something else. He requested that the department ask for resources when it needs to accomplish something else and that its fiscal notes reflect relinquished resources. 1:43:04 PM REPRESENTATIVE TUCK said he is concerned about backsliding on what the public put forth [in the 2006 Initiative]. A balance can be achieved between the cruise industry and keeping Alaska's waters pristine and good for coastal economies, recreation, and public health. Fifteen violations occurred in 2011 and he wants to ensure the state helps the industry reach the standards so there are no violations. Because this was the goal of the Science Advisory Panel, he is disheartened to see it go away. While the state does not want to have a rule that cannot be achieved, the state must also have a vision and must also set goals. He recalled reading about a patent officer who, in the late 1800s or early 1900s, stated that the patent office might as well be closed because everything that can be invented is already invented. Engineering is only getting better and today miniaturization is driving economies, and this applies to the cruise ship wastewater treatment systems and their wastewater holding tanks. Some of the amendments were achievable, he said, and he is concerned about giving DEC the flexibility to allow mixing zones in critical habitat areas. No dumping at all is allowed in Glacier Bay National Park and Preserve, yet the newspaper reported that the [water from] four swimming pools was dumped into Glacier Bay. He said he will not be supporting the bill because it does not set goals and work with the industry to get there, and is a step backwards. 1:46:12 PM REPRESENTATIVE TARR stated she will not be supporting the bill at this time. As someone with a science background it is disappointing to her. She recalled that things used to be regulated under the saying that the solution to pollution is dilution. Regulation has long since moved on from that, so this is a terrible step backwards. In addition to the violations in 2011, there were 32 wastewater violations in 2009. Alaska should be encouraging new developments, but now it will not keep its status as a leader. In five years Alaska will have missed the boat for protecting salmon. She offered her hope that the legislature will not be looking back on this and regretting its move today. Steps should have been taken to at least extend the compliance period to continue working on this. 1:47:44 PM REPRESENTATIVE P. WILSON said nothing more can be done than what is currently being done. Additionally, the annual cost of about $100,000 for the Science Advisory Panel would continue for an undetermined amount of time. She said she feels justified in voting yes because the standards are not being lowered, nothing more can be done at this point in time, and general fund monies could be used for something else, especially given that the state is $400 million short. 1:49:17 PM REPRESENTATIVE JOHNSON stated that California's solution to a problem with permitting is to just say no rather than working through it and allowing industry to find a solution. He does not want to be compared to California and he does not want Alaska to be a state that just says no. He wants Alaska to be a state that continues to work with industry so that maybe the state can turn off the "not open for business" sign that seems to have been placed at its borders. 1:50:14 PM CO-CHAIR FEIGE moved to report HB 80 out of committee with individual recommendations and the accompanying [zero] fiscal notes. REPRESENTATIVE TUCK objected. A roll call vote was taken. Representatives Johnson, Olson, Seaton, P. Wilson, Hawker, Feige, and Saddler voted in favor of HB 80. Representatives Tarr and Tuck voted against it. Therefore, HB 80 was reported out of the House Resources Standing Committee by a vote of 7-2.