HB 128 - WATER QUALITY; WATER SCIENCE OVERSIGHT BD CHAIRMAN HALFORD called the Senate Resources Committee meeting to order at 3:40 p.m. and announced HB 128 to be up for consideration. REPRESENTATIVE HUDSON said he introduced HB 128 to identify a better way to establish water quality standards in Alaska. It seeks a scientific fact based understanding of our unique water bodies and uses, and establishes a mechanism for DEC to form a partnership with interested parties to seek funding for water quality research. The goal of the research is to substitute science and certainty for the emotional political debate that characterizes water quality regulations in the State. Without Alaska specific arctic/subarctic research, the federal Environmental Protection Agency (EPA) will not accept Alaska specific changes to our own water quality regulations. The vast majority of interested parties agree to a concept of forming a partnership to seek funding for five years of technical research. The Alaska Science and Technology Foundation, monies direct from Washington D.C. and Senator Stevens, and industry money are potential sources of funding. However, they can only accept application from a public agency if it's in partnership with a private organization. Federal funds may be sought at a future date and it's not his intent to request general funds for this research. He said this is not simply pro-mining legislation; it affects minerals development, fisheries and processing, municipal out falls, and any discharge into a body of water in Alaska. This bill is about the preservation of the image and quality of clear, pristine waters in Alaska and embodies the concept of multiple use. The mining industry has said they can support a water standard, if it is based on science. CHAIRMAN HALFORD noted that DEC indicated using general fund monies. REPRESENTATIVE HUDSON clarified that he is not asking for general funds to finance the science. DEC has a need for funds to establish the partnering, but not for the five years of scientific basis. SENATOR TAYLOR offered technical amendments for the dates on page 4, line 18 to change "1997" to "1998;" also on page 4, line 20 to change "2002" to "2003." There were no objections and the amendments were adopted. SENATOR TAYLOR offered another technical amendment on page 3, line 13 where the Board members are compensated for $300 per day. It would seem more appropriate, if they are compensated at least at the same rate that legislators received per day which when you divide the $24,000 salary into 365 days, comes out to a daily rate of $65.78. So he rounded it off to $66 saying they would still get per diem on top of that. CHAIRMAN HALFORD said he would take that under advisement since he didn't formally offer the amendment. SENATOR LEMAN asked if it would be reasonable to limit any one who is a contractor to the Department as a Board member or would that eliminate some of the talent they want on that Board. REPRESENTATIVE HUDSON said he would like to think about that and talk to some people from the mining industry and other industries he is trying to help. MR. MIKE CONWAY, Director, Air and Water Quality Division, said they supported this bill. MR. CLYNT NAUMAN, President, Council of Alaska Producers, supported this bill, also. They see water quality at a point where it is critical to the industry and to the State. MS. CHARLOTTE MACKAY, Cominco, stated that water criteria for the State of Alaska is based on criteria adapted from studies conducted in more temperate areas of the United States. One of the main inhibitors in getting water quality research is that once the study is completed, there is no balanced credible audience of appropriate expertise to evaluate the study's conclusions and there is no commitment on behalf of the State to apply scientifically supported recommendations. HB 128 sets up a Water Quality Board that will provide for the credible evaluation of water quality research studies to serve the State as well as convince the EPA. It also provides for a commitment on behalf of the State to seriously consider the Board's recommendations. It should be noted that neither the State nor the industries pursuing this research can predict the outcome of these studies, but are committed to living with the results of standards based on sound science. At present, they have initiated studies through the Alaska Science and Technology Foundation as co- applicants with DEC and ADF&G to determine the level at which totally dissolved solids become toxic. Further studies regarding PH and [indisc] toxicity are anticipated in the future. SENATOR TAYLOR said he understood that Alaska had one water quality standard which was for drinking water. MS. MACKAY responded no; that there are various standards for protection of aquatic life, industrial uses, etc. Number 254 MS. PEGGY WILCOX testified on behalf of herself and said there are a few things that concerned her. Although the legislative intent is fantastic, she looked at the Water Science Oversight Board which would be qualified individuals, but political appointees. They would review a plan put together by DEC and interested parties, and if you remove DEC, the interested parties who have the education are probably going to be employed by the industry. Of the three things they are to examine, the third one is relative costs and benefits of toxicity testing methods. She was also concerned with the removal of drinking water (the human element) from the bill, or making differentiation between water that's going to be coming out of the outfall of a mine pipe and water that could potentially be consumed. She also agreed with Senator Taylor about the $300 fee which would come out to $12,000 for five members at a minimum of four days. She thought the $12,000 could be better used in hiring another scientist. SENATOR LEMAN asked her to clarify what she meant by removal of the human element. MS. WILCOX explained on page 2, lines 9, 11, and 14 talk about aquatic life criteria, toxicity testing procedures, and relative costs and benefits of testing methods. This would be what the Board would be addressing. She thought adding a fourth criteria regarding the extent toxics are already present and affecting public health would be useful. REPRESENTATIVE HUDSON said the intent was to set up as impartial a board as can possibly be done as an oversight board of scientific research that will be done by real scientists. Both industry and the regulators will, then, have a basis on which they can establish standards on which they can manipulate the water. He didn't think there was any lack of the human element and there will be testing of what the water body currently consists of as they start up. From that they will determine what the effects would be on that base for various applications. Number 350 MR. CONWAY commented that the human health criteria is well documented because human beings are pretty much the same here as they are in other parts of the country. Human health isn't at issue, but the kinds of species we find in Alaska and what is their ability is to respond to things that occur naturally in Alaska that may not be occurring in other places. He added that any time there is an operation that goes into place there is a permitting process which takes these standards and applies them to the situation that is at hand. There is rigorous criteria to go through to make sure public health would not be in danger. MS. WILCOX said the term "cost benefit of toxicity" makes her cringe. MR. CONWAY explained that was directed at the methods of getting the information you need. If you can get it from a field test kit or something easy like that, why should you have to send samples potentially out of state and spend thousands of dollars. MS. WILCOX thanked them for answering her questions. MS. BETH CARLSON, Sierra Club, said they do not support the bill as written. She questioned that the Board would be reliable because of legislative budget cuts and because section 26.03.85(b) allows the Board to set its own compensation level for partial work days and such a cost is an unknown factor. This leads to their second concern. While the legislature finds it is important for the DEC to conduct adequate research prior to proposing and implementing water quality regulations and the Department has often had to act without specific data about the State's water, this proposed legislation rather than providing additional funding to address these concerns, places an additional burden or duty on Department officials by requiring them to seek funds to perform research. Surely this added duty can only detract from research we all agree is necessary. She wonders when DEC will come to them to ask for money since they are involved in water sports, although she doubts that would happen. It appears that "interested parties" does not actually include all parties interested in water quality. Her third concern is the increased bureaucracy it creates. She agrees that citizen oversight and involvement in government is important, but they think that such oversight and involvement already exists through the pubic review and comment process. The public would be better served by hiring more scientists to work for the Department in allocating adequate funds for them to perform the necessary research they all agree is necessary. MS. CARLSON said also that the Governor is fully qualified for appointing an oversight board comprised of individuals who satisfy the requirements in section 46.03.85(a). MS. PATTI SAUNDERS, Assistant Director, Alaska Conservation Voice, said they agree with the intent of this bill that the policy of the State is to protect the quality and uses of the State's water. They also support the concept of promulgating regulations based on good research, however the solution proposed in HB 128 is ill- advised and is not likely to further the goal of protecting Alaska's water quality and public health. If the problem is that DEC doesn't have sufficient staff to get enough research to promulgate toxicity standards, the easiest and best solution is to give DEC the funds necessary to do the work. Creation of an oversight board is problematic because empowering the legislature to appoint board members inappropriately and unnecessarily politicizes the development of toxicity standards in direct contravention of the purported purpose of the bill. The qualifications required for board members all but guarantees that qualified people with a public interest perspective will be excluded from the board, while individuals who may be technically qualified, but are none-the-less employed by industry as staff and consultants, would undoubtedly fill most of the seats. The Board research plan is limited to how much toxicity ought to be allowed in State waters and further is limited to toxic effects on aquatic life. The bill does not provide for toxicity standards based on public health considerations, nor does it provide any mechanisms for dealing with accumulations of toxic material already present in our environment from past industrial practices. The notion of using private (industry) money to fund this project goes against every principal of good government. If good research is so important to protecting good Alaskan water quality and the public interest, we ought to be willing to pay for it using public funds. It would preserve the appearance and reality of unbiased objective science. This bill will ensure that only the parts that industry is willing to pay for will move forward. She concluded that they should adequately fund DEC to do the research that would help protect the public and the environment. Number 450 SENATOR LEMAN noted that Ms. Carlson was concerned about the political issues with the legislature in appointing board members, but wasn't concerned about the same thing with the Governor. The legislature is meant to represent the people and is to just suggest two lists of three names each. SENATOR TAYLOR said he appreciated the vote of confidence, since he was intending to change the Governor in the next election. MS. CARLSON responded that her concern is that this procedure is substantially different from the normal procedure for the appointment of boards and she didn't think it was appropriate nor was there any justification for changing the appointment process. It also clearly puts control in the hands of the legislature. SENATOR LEMAN asked if this board would require legislative confirmation. CHAIRMAN HALFORD answered that it didn't, because it's not regulatory; it's quasi-judicial. SENATOR GREEN added that there were other lists of board members submitted by the University of Alaska, the Governor, and the Commissioner or the Commissioner's designee. MS. CARLSON responded that her concern is with the process and the extent to which this differs from the normal process for appointing boards and then confirmation. CHAIRMAN HALFORD asked if this is a five-year board. REPRESENTATIVE HUDSON replied yes. CHAIRMAN HALFORD said he was concerned if it's not their intent to have a sunset review and this is a temporary board, that should be clarified. REPRESENTATIVE HUDSON said the intent is to have a temporary board. They want to get in, establish the science, establish the regulations, then be done with it. CHAIRMAN HALFORD asked if he would object to a sunset date that would direct a repeal after five years. He said they are already going to change the date anyway. He said it would have to be after the Department submits its research. REPRESENTATIVE HUDSON said he would accept an actual sunset at the end of five full years of research. Number 529 CHAIRMAN HALFORD said they would hold the bill for further work before passing it.