ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 11, 2007
1:06 p.m.
MEMBERS PRESENT
Representative Jay Ramras, Chair
Representative John Coghill
Representative Bob Lynn
Representative Ralph Samuels
Representative Max Gruenberg
Representative Lindsey Holmes
MEMBERS ABSENT
Representative Nancy Dahlstrom, Vice Chair
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 19(FIN) am
"An Act relating to a public officer's taking official action
regarding, or influencing, a matter in which the public officer
has a personal or financial interest; relating to restrictions
on employment after leaving state service; prohibiting certain
persons from engaging in activity as lobbyists; relating to
financial disclosures from former public officials; and defining
'official action' under the Alaska Executive Branch Ethics Act
and related law."
- HEARD AND HELD
CS FOR SENATE BILL NO. 20(STA) am(efd fld)
"An Act relating to disclosures by legislators, legislative
employees, public members of the Select Committee on Legislative
Ethics, and legislative directors subject to the Legislative
Ethics Act; and relating to the applicability of the Legislative
Ethics Act."
- HEARD AND HELD
HOUSE BILL NO. 149
"An Act relating to the authority of the Department of
Environmental Conservation to require certain monitoring,
sampling, and reporting and to require permits for certain
discharges of pollutants; relating to criminal penalties for
violations of the permit program; and providing for an effective
date."
- MOVED CSHB 149(RES) OUT OF COMMITTEE
HOUSE BILL NO. 14
"An Act relating to the purchase of alcoholic beverages and to
access to licensed premises; relating to civil liability for
certain persons accessing licensed premises; requiring driver's
licenses and identification cards to be marked if a person is
restricted from consuming alcoholic beverages as a result of a
conviction or condition of probation or parole and relating to
fees for the marked license; and requiring the surrender and
cancellation of driver's licenses under certain circumstances."
- BILL HEARING POSTPONED TO 4/13/07
HOUSE BILL NO. 159
"An Act relating to the issuance of a certificate of birth
resulting in a stillbirth."
- BILL HEARING CANCELED
PREVIOUS COMMITTEE ACTION
BILL: SB 19
SHORT TITLE: ETHICS: EXECUTIVE BRANCH & MUNICIPAL
SPONSOR(S): SENATOR(S) FRENCH, ELTON, MCGUIRE, WIELECHOWSKI,
THOMAS, HUGGINS
01/16/07 (S) PREFILE RELEASED 1/5/07
01/16/07 (S) READ THE FIRST TIME - REFERRALS
01/16/07 (S) JUD, STA, FIN
01/22/07 (S) JUD AT 1:30 PM BELTZ 211
01/22/07 (S) Heard & Held
01/22/07 (S) MINUTE(JUD)
01/24/07 (S) JUD AT 1:30 PM BUTROVICH 205
01/24/07 (S) Moved CSSB 19(JUD) Out of Committee
01/24/07 (S) MINUTE(JUD)
01/26/07 (S) JUD RPT CS 5DP NEW TITLE
01/26/07 (S) DP: FRENCH, HUGGINS, WIELECHOWSKI,
THERRIAULT, MCGUIRE
01/30/07 (S) STA AT 9:00 AM BELTZ 211
01/30/07 (S) Meeting Postponed to 2/1/07
02/01/07 (S) STA AT 9:00 AM BELTZ 211
02/01/07 (S) Moved CSSB 19(STA) Out of Committee
02/01/07 (S) MINUTE(STA)
02/02/07 (S) STA RPT CS 3DP 2NR NEW TITLE
02/02/07 (S) DP: MCGUIRE, FRENCH, GREEN
02/02/07 (S) NR: STEVENS, BUNDE
02/07/07 (S) FIN AT 9:00 AM SENATE FINANCE 532
02/07/07 (S) Heard & Held
02/07/07 (S) MINUTE(FIN)
02/12/07 (S) FIN AT 9:00 AM SENATE FINANCE 532
02/12/07 (S) Moved CSSB 19(FIN) Out of Committee
02/12/07 (S) MINUTE(FIN)
02/12/07 (S) FIN RPT CS FORTHCOMING 6DP
02/12/07 (S) DP: HOFFMAN, STEDMAN, ELTON, THOMAS,
HUGGINS, OLSON
02/14/07 (S) FIN CS RECEIVED NEW TITLE
03/07/07 (S) TRANSMITTED TO (H)
03/07/07 (S) VERSION: CSSB 19(FIN) AM
03/12/07 (H) READ THE FIRST TIME - REFERRALS
03/12/07 (H) JUD
04/11/07 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 20
SHORT TITLE: LEGISLATIVE DISCLOSURES
SPONSOR(S): SENATOR(S) FRENCH, ELTON, MCGUIRE, WIELECHOWSKI,
THOMAS, HUGGINS
01/16/07 (S) PREFILE RELEASED 1/5/07
01/16/07 (S) READ THE FIRST TIME - REFERRALS
01/16/07 (S) JUD, STA, FIN
01/22/07 (S) JUD AT 1:30 PM BELTZ 211
01/22/07 (S) Heard & Held
01/22/07 (S) MINUTE(JUD)
01/24/07 (S) JUD AT 1:30 PM BUTROVICH 205
01/24/07 (S) Moved CSSB 20(JUD) Out of Committee
01/24/07 (S) MINUTE(JUD)
01/26/07 (S) JUD RPT CS 2DP 3AM SAME TITLE
01/26/07 (S) DP: FRENCH, MCGUIRE
01/26/07 (S) AM: HUGGINS, WIELECHOWSKI, THERRIAULT
01/30/07 (S) STA AT 9:00 AM BELTZ 211
01/30/07 (S) Meeting Postponed to 2/1/07
02/01/07 (S) STA AT 9:00 AM BELTZ 211
02/01/07 (S) Moved CSSB 20(JUD) Out of Committee
02/01/07 (S) MINUTE(STA)
02/02/07 (S) STA RPT CS 5DP NEW TITLE
02/02/07 (S) DP: MCGUIRE, FRENCH, STEVENS, GREEN,
BUNDE
02/07/07 (S) FIN AT 9:00 AM SENATE FINANCE 532
02/07/07 (S) Heard & Held
02/07/07 (S) MINUTE(FIN)
02/12/07 (S) FIN AT 9:00 AM SENATE FINANCE 532
02/12/07 (S) Moved CSSB 20(STA) Out of Committee
02/12/07 (S) MINUTE(FIN)
02/12/07 (S) FIN RPT CS(STA) 5DP
02/12/07 (S) DP: HOFFMAN, STEDMAN, ELTON, THOMAS,
HOFFMAN
03/07/07 (S) TRANSMITTED TO (H)
03/07/07 (S) VERSION: CSSB 20(STA) AM(EFD FLD)
03/12/07 (H) READ THE FIRST TIME - REFERRALS
03/12/07 (H) JUD
04/11/07 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 149
SHORT TITLE: POLLUTANT DISCHARGE PERMITS
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
02/21/07 (H) READ THE FIRST TIME - REFERRALS
02/21/07 (H) RES, JUD
03/12/07 (H) RES AT 1:00 PM BARNES 124
03/12/07 (H) Heard & Held
03/12/07 (H) MINUTE(RES)
03/19/07 (H) RES AT 1:00 PM BARNES 124
03/19/07 (H) Moved CSHB 149(RES) Out of Committee
03/19/07 (H) MINUTE(RES)
03/21/07 (H) RES RPT CS(RES) 4DP 1DNP 4NR
03/21/07 (H) DP: WILSON, ROSES, JOHNSON, GATTO
03/21/07 (H) DNP: SEATON
03/21/07 (H) NR: KAWASAKI, GUTTENBERG, EDGMON,
KOHRING
04/11/07 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
SENATOR HOLLIS FRENCH
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: As joint prime sponsor, presented SB 19 and
SB 20.
LARRY HARTIG, Commissioner
Department of Environmental Conservation (DEC)
Juneau, Alaska
POSITION STATEMENT: Presented HB 149 on behalf of the
administration.
CAMERON LEONARD, Senior Assistant Attorney General
Natural Resources Section
Civil Division (Fairbanks)
Department of Law (DOL)
Fairbanks, Alaska
POSITION STATEMENT: Assisted with the presentation of HB 149.
LYNN TOMICH KENT, Director
Division of Water
Department of Environmental Conservation (DEC)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 149.
ACTION NARRATIVE
CHAIR JAY RAMRAS called the House Judiciary Standing Committee
meeting to order at 1:06:19 PM. Representatives Gruenberg,
Coghill, Samuels, Lynn, and Ramras were present at the call to
order. Representative Holmes arrived as the meeting was in
progress.
SB 19 - ETHICS: EXECUTIVE BRANCH & MUNICIPAL
SB 20 - LEGISLATIVE DISCLOSURES
1:06:43 PM
CHAIR RAMRAS announced that the first order of business would be
CS FOR SENATE BILL NO. 19(FIN) am, "An Act relating to a public
officer's taking official action regarding, or influencing, a
matter in which the public officer has a personal or financial
interest; relating to restrictions on employment after leaving
state service; prohibiting certain persons from engaging in
activity as lobbyists; relating to financial disclosures from
former public officials; and defining 'official action' under
the Alaska Executive Branch Ethics Act and related law."; and CS
FOR SENATE BILL NO. 20(STA) am(efd fld), "An Act relating to
disclosures by legislators, legislative employees, public
members of the Select Committee on Legislative Ethics, and
legislative directors subject to the Legislative Ethics Act; and
relating to the applicability of the Legislative Ethics Act."
1:07:25 PM
SENATOR HOLLIS FRENCH, Alaska State Legislature, joint prime
sponsor of SB 19 and SB 20, said that SB 19 was engendered by
the problem which arose several years ago when then-Attorney
General Renkes maintained [substantial] investments in certain
entities and then took public action on those entities. The
subsequent investigation revealed a weakness in the state's
ethics laws, and [SB 19] seeks to better define what amount of
investment a public official can maintain and still take public
action on the entity involved. He relayed that under Section 3
of SB 19, it would not be a violation for a public official to
take an action if the action has only an insignificant effect on
his/her investment regardless of how much he/she has invested,
but it would be a violation if the action has a significant
effect on his/her investment and the investment is greater than
$5,000.
SENATOR FRENCH explained that Section 1 of SB 19 provides that a
former executive branch public official may not act as a
lobbyist, except as a representational or volunteer lobbyist,
for one year after leaving public service. Section 2 provides
that a former executive branch public official must file a final
report of financial and business interests upon leaving public
office. Section 4 [provides that stock or ownership interest in
an amount less than $5,000 is presumed to be insignificant]; he
offered his understanding that this presumption is rebuttable
should a public official take an action that increases the value
of the stock or ownership interest to $5,000 or more.
1:13:25 PM
SENATOR FRENCH relayed that Section 5 would preclude a public
official - for two years after leaving state service - from
representing, advising, or assisting a person for compensation
regarding a legislative or regulatory matter that was under
consideration by the administrative unit the public official
served. Section 6 expands the list of those public officials
that would be precluded - for one year after leaving state
service - from acting as a lobbyist; the additional persons are
deputy heads of principal departments, division directors,
legislative liaisons, employees of the governor and lieutenant
governor who've held policy-making positions, members of boards
or commissions that have the authority to adopt regulations, and
members of the governing board and executive officer of a state
public corporation.
REPRESENTATIVE SAMUELS asked why Section 5 has a two-year
limitation and Section 6 has a one-year limitation.
SENATOR FRENCH indicated that Section 5 would apply to all
public officers who would have participated in a matter
personally and substantially through the exercise of official
action, whereas the public officers specifically referenced in
Section 6 wouldn't necessarily have done so.
REPRESENTATIVE HOLMES asked whether the two-year limitation
established via Section 5 would also apply to someone
specifically listed in Section 6 who actually does participate
personally and substantially through the exercise of official
action.
SENATOR FRENCH surmised that it would apply.
REPRESENTATIVE GRUENBERG opined that not all who are listed in
Section 6 are actually public officers as defined in AS
39.52.960, whereas Section 5 appears to apply specifically only
to public officers.
SENATOR FRENCH suggested that a representative from the
Department of Law (DOL) might be able to clarify that point.
REPRESENTATIVE HOLMES offered her understanding that AS
39.52.960 includes all public employees, and surmised,
therefore, that all who are listed in Section 6 would be covered
by Section 5.
REPRESENTATIVE COGHILL pointed out that Section 6 specifically
precludes lobbying, whereas Section 5 precludes representing,
advising, and assisting for compensation.
1:23:15 PM
REPRESENTATIVE SAMUELS offered an example involving a
legislative liaison for the Department of Environmental
Conservation (DEC): under Section 6, such a person could become
a lobbyist one year after leaving state service, but under
Section 5, he/she would have to wait two years after leaving
state service before addressing matters that fall under the
purview of the DEC. Following this example, the governor's
legislative liaison, because he/she works on matters involving
all departments, would be precluded for two years after leaving
state service from addressing any matter.
SENATOR FRENCH acknowledged that it would be hard to identify
concretely which specific matters the governor's legislative
liaison participated personally and substantially through the
exercise of official action.
REPRESENTATIVE SAMUELS questioned whether the two-year
limitation set out in Section 5 would make it difficult to
recruit someone for the position of governor's legislative
liaison.
SENATOR FRENCH said:
I know you have wrestled with these topics like we
wrestled with them, and there's no right answer - ...
there just isn't. You just have to find some balance
point where you're satisfied that you're protecting
the public good vis-a-vis ... the demands of public
service and the requirement that you get qualified
individuals [to] fill positions. ... I wish I could
tell you there's a bright line. ... My default
response is, if you're called to public service,
you're called to public service, and there's a reason
why you're called and there's a reason why you want to
do it, and it involves sacrifice. The person that you
mentioned, I believe, could probably find lots of
valuable work in that profession, whether it's DEC or
some other related field, they just can't come to the
building and use that influence they gained, at public
expense, and push pieces of legislation. They can
write laws, they can draft laws, they can analyze
laws, they can ... work in the office, they can go to
trade groups, they can promote all kinds of agendas
without being a lobbyist. I think that's the special
point of influence that the public is concerned about.
1:27:53 PM
SENATOR FRENCH said that SB 20 pertains to legislative
disclosures, and embodies the concept of informing the public
more concretely and more specifically, though this may also put
more of a burden on legislators. "We should ... disclose to the
public what it is we do in exchange for the money we earn
outside the building," he added. Characterizing Section 3 of
SB 20 as the heart of the bill, he explained that it lowers the
monetary threshold requiring disclosure to $1,000, and requires
a clear description of services performed, hours worked, and
income received and/or deferred.
REPRESENTATIVE COGHILL noted that Section 3 of SB 20 proposes to
significantly change statutory language adopted recently via
ballot initiative.
SENATOR FRENCH characterized the language created by the ballot
initiative as burdensome. In response to another question, he
indicated that other Senate legislation currently going through
the process specifically precludes a legislator from being paid
for work that mirrors his/her legislative work.
CHAIR RAMRAS surmised that such legislation could impede the
ability of many legislators to perform the duties of their
chosen non-legislative profession.
REPRESENTATIVE COGHILL said he would be doing further research
on the restrictions imposed by Sections 5 and 6 of SB 19.
REPRESENTATIVE SAMUELS surmised that as currently written,
Section 5 of SB 19 would preclude a public officer from doing
any legislation/regulation-related work for compensation for two
years after leaving state service, and offered his belief that
such a person would essentially become unemployable for that
time period.
1:35:37 PM
REPRESENTATIVE HOLMES pointed out that that two-year limitation
in Section 5 is part of existing law.
REPRESENTATIVE COGHILL concurred, but noted that that existing
law currently provides an exemption [for legislation-related
matters], and this exemption would be removed via the change
proposed via Section 5.
CHAIR RAMRAS relayed that SB 19 and SB 20 would be held over.
HB 149 - POLLUTANT DISCHARGE PERMITS
1:38:17 PM
CHAIR RAMRAS announced that the final order of business would be
HOUSE BILL NO. 149, "An Act relating to the authority of the
Department of Environmental Conservation to require certain
monitoring, sampling, and reporting and to require permits for
certain discharges of pollutants; relating to criminal penalties
for violations of the permit program; and providing for an
effective date." [Before the committee was CSHB 149(RES).]
CHAIR RAMRAS offered his understanding that HB 149 is intended
to fix aspects of the legislation [passed in 2005] that
pertained to the federal Clean Water Act's National Pollutant
Discharge Elimination System (NPDES) permit program, and would
allow Alaska to enjoy primacy regarding discharges into its own
waters.
1:41:31 PM
[Chair Ramras turned the gavel over to Representative Coghill.]
LARRY HARTIG, Commissioner, Department of Environmental
Conservation (DEC), relayed that HB 149 is essential in the
state's pursuit of primacy and enjoys the support of industry.
There's been a lot of work done between the Environmental
Protection Agency (EPA) and the DEC on putting together the
state's application, getting the EPA's initial reaction to that
application, and resolving the EPA's concerns on that
application; furthermore, the EPA and the DEC have worked out a
schedule whereby the EPA will receive from the state a revised,
complete application for primacy, which will then be reviewed
with the goal of being able to give the DEC primacy [by] Spring
of 2008.
COMMISSIONER HARTIG relayed that the state still needs several
things: new statutes and regulations; an attorney general's
statement regarding the DEC's authority under state law; and a
program description that would include budgetary information.
The goal is for the DEC to have an exemplary program that will
fulfill the desires and expectations of Alaskans. Again, HB 149
constitutes a critical piece of the package; without it, the
state will not have a complete application, even though the
state has already expended approximately $3.7 million towards
obtaining primacy.
[Representative Coghill returned the gavel to Chair Ramras.]
1:45:58 PM
CAMERON LEONARD, Senior Assistant Attorney General, Natural
Resources Section, Civil Division (Fairbanks), Department of Law
(DOL), relayed that all of the bill's sections resulted from
discussions and negotiations between the administration and the
EPA, and are intended to address the EPA's concerns regarding
Alaska's existing statutes. The underlying principal of all of
those concerns is that the EPA can only approve a state program
if it is as stringent as the federal program being replaced.
MR. LEONARD explained that Sections 1 and 5 go together somewhat
because they both address the question of where requirements for
monitoring and reporting should be placed; one option would be
to place them in the discharge permits, and another option would
be to place them in "orders" outside the context of the permit.
The permits themselves would be enforceable by third parties via
"citizen suits," and so placing a requirement in the permit as a
permit condition would allow the requirement to be enforced by
either the EPA, the DEC, or third party suits. Section 1
provides the DEC with the authority to place requirements on
facilities even outside the context of a permit, and Section 5
clarifies that the DEC has the same authority as the EPA to
place [requirements] in the permit itself as a permit condition.
MR. LEONARD, in response to a question, offered his
understanding that the term, "facility" is broadly defined
statutorily; in general, a "facility" would include any
operation that resulted in a discharge which triggered the
aforementioned permitting requirements. In response to another
question, he relayed that the terms used in Section 1 are the
same terms used in the federal law referenced in Section 1.
Typically, the term "monitoring" as it is used in the bill
refers to monitoring the effluent itself to measure the
concentrations of pollutants in the effluent, ambient monitoring
sampling in the receiving environment, and biological
monitoring.
REPRESENTATIVE COGHILL noted that AS 46.03.900(8) defines
"facility" as:
(8) "facility" means any offshore or onshore
structure, improvement, vessel, vehicle, land,
enterprise, or endeavor;
1:49:19 PM
CHAIR RAMRAS asked whether there should be 24-hour monitoring of
facilities [by the DEC].
COMMISSIONER HARTIG said that the NPDES program is a self-
monitoring/self-reporting type of program; this is how it
currently works under the EPA and how it would work under the
DEC. Therefore, neither the EPA nor the DEC would have a
representative at each facility, but a facility - under the
terms of the permit - would be required to periodically sample
its discharge, send that sample to a laboratory for analyses,
and report the results to the appropriate agency. The frequency
of the monitoring and what would be monitored would be dependant
upon a review of the types and variability of materials that
could be present in the discharge. For example, if a facility
would be monitoring for a substance the amount of which doesn't
fluctuate much over time, the monitoring frequency would be less
than if the facility is monitoring for a substance the amount of
which does fluctuate greatly over time.
COMMISSIONER HARTIG, in response to a question, indicated that
on-site, 24-hour monitoring of all permitted facilities would
not be possible as a practical matter because of budgetary
constraints. Furthermore, there are strict civil and criminal
penalties for noncompliance; a facility may not tamper with any
monitoring or falsely report results, and the discharge
monitoring reports must be certified for accuracy and
completeness by a manager of the facility. Additionally, the
DEC will be conducting periodic inspections of facilities, will
be collecting samples during those visits, and will be comparing
its testing results with the facilities' results. The DEC will
have as rigorous a program as the EPA in terms of monitoring and
inspecting, he opined, no different than what all the other
states that have been granted primacy are required to have.
CHAIR RAMRAS expressed concern that the state would be
instituting two different standards regarding facilities that
are vessels: one standard for vessels [that are permitted by
the DEC], and one standard for cruise ships traveling through
Alaska waters.
1:56:03 PM
MR. LEONARD went on to explain that Section 2 of the bill
proposes to conform the language in state statute with the
language in the Clean Water Act; this change will alleviate the
EPA's concern that the terms used by the DEC are [not] as broad
as those used by the EPA. He also noted that some of the
language being deleted from existing AS 46.03.100(a) via Section
2 is being reinserted into existing AS 46.03.100(e) via Section
4. He then explained that Section 3 of the bill proposes to
clarify that it would be the DEC's responsibility to decide
whether a particular discharge needed an individual permit or a
general permit or could simply be covered under regulations. In
response to a question, he mentioned that the term, "effluent"
is used interchangeably with the term, "wastewater"; that both
terms refer to what is discharged from a particular operation;
that there is a wide variety of wastewater, including domestic
wastewater and industrial wastewater; and that the bill
addresses only effluent discharges to surface waters - not land
waters or ground waters - regardless of whether the surface
waters are fresh or marine.
1:59:28 PM
LYNN TOMICH KENT, Director, Division of Water, Department of
Environmental Conservation (DEC), in response to a question,
explained that the types of discharges that the DEC oversees
include sewage from community systems; discharges from the oil
and gas industry; discharges associated with the timber
industry, though such discharges are not generally considered to
be liquid waste; discharges associated with mining operations;
domestic discharges from "camps"; discharges associated with
seafood processing facilities; and storm water discharges
related to construction activities and some permanent
facilities.
MR. LEONARD, in response to a question, relayed that discharges
from cruise ships are exempted from the NPDES.
MS. KENT, in response to other questions, indicated that
discharge from a cruise ship - although cleaner if run through
an advanced wastewater treatment system - might most closely
resemble discharge from a community wastewater system but might
also resemble discharge from a facility involved in the oil and
gas industry.
MS. KENT, in response to further questions, relayed that
community wastewater systems discharge into both fresh and
marine waters, and the dominant constituents include fecal
coliform bacteria, total suspended solids, metals, and "pH and
ammonia"; that oil and gas industry discharges - generally into
marine waters - include hydrocarbons and metals such as arsenic,
lead, cadmium, zinc, and other trace metals; that timber
industry discharges from log transfer facilities consist of bark
and debris from the lumber being transferred - generally via
marine waters - and storm water discharges from "upland"
facilities; that mining industry discharges include suspended
solids - naturally-occurring fine particles of rock and sand -
and metals; that camps have discharges similar to community
wastewater systems; that seafood industry discharges - generally
into marine waters - include ground up waste leftover from
processing seafood; and that storm water discharges include oils
and grease from parking lots, and suspended solids. The
facilities that are required to obtain a storm water discharge
permit include construction facilities and other facilities with
ongoing operations that could result in discharges to a surface
water body.
MR. LEONARD, in response to a question, indicated that Section 8
of the bill [establishes a class A misdemeanor for violations
and uses a simple "negligence" standard].
CHAIR RAMRAS surmised that this standard mirrors the federal
standard under the Clean Water Act.
MR. LEONARD concurred.
2:10:08 PM
REPRESENTATIVE SAMUELS offered his understanding that the prior
authorization referenced in Section 3 isn't currently mandatory
and won't be even with passage of the bill.
MR. LEONARD concurred; Section 3 just clarifies that it will be
the DEC that decides "which form to use."
CHAIR RAMRAS asked whether the DEC has adequate funding for the
NPDES program.
MS. KENT said that funding was included in the fiscal note
pertaining to the legislation that passed in 2005, and so
funding for the NPDES program is part of the DEC's base budget.
COMMISSIONER HARTIG, in response to a question, said that the
governor supports state primacy, which will only be achieved if
the EPA believes that the DEC has adequate funding for the NPDES
program.
MR. LEONARD, in response to comments, clarified that Section 1
only addresses the DEC's authority to require facility operators
to perform monitoring, sampling, and reporting activities
outside the context of a permit, even though there is much more
to the NPDES program.
CHAIR RAMRAS asked why one might want the EPA to implement the
NPDES program instead of the DEC.
COMMISSIONER HARTIG suggested that one reason might be that the
EPA currently provides permits for free whereas the DEC charges
for permits, and although some of the industries that seek
discharge permits initially raised that issue as a concern, they
have since reached a consensus in favor of having the DEC
implement the NPDES program. Another issue that has been raised
- primarily by those concerned with protecting the environment -
is whether the DEC will take enforcement as seriously as the
EPA.
MS. KENT, in response to questions, reiterated that funding for
the NPDES program has already been provided through the
legislation that passed in 2005, and offered her understanding
that the annual cost of the NPDES program is [about] $4.8
million.
2:16:45 PM
MS. KENT, in response to further questions, offered her
understanding that that amount is sufficient since some
facilities are smaller and [permitting costs] will be covered
under a general permit, which specifies the maximum quantity of
waste that can be discharged from a facility; that currently
there are about 2,000 permitted facilities; and that in
performing a resource-needs analysis for the NPDES program, the
DEC found its needs be comparable with the needs of the other
"Region 10" states that have already implemented the program.
CHAIR RAMRAS asked Ms. Kent to provide the committee with
statistics grouping facilities together by type and illustrating
the cost allocations for each type.
MS. KENT said she would provide that data.
REPRESENTATIVE HOLMES asked why the state would want to take on
the additional fiscal burden associated with having primacy,
particularly given that the state might be facing a fiscal
deficit in future years.
MS. KENT said that when the [administration] decided to pursue
primacy for the NPDES program, a workgroup that included
representatives of the major [types] of permit holders was
formed, and one of the charges of the workgroup was to consider
the potential costs and benefits of such a program. Attaining
primacy, the workgroup reported, would result in permit holders
being regulated by just one government entity rather than two;
would result in Alaskans writing the permits rather than those
that might not be familiar with Alaska-specific conditions;
would result in permits being issued faster without requiring
applicants to go out of state; and would result in the program
being held accountable by Alaska's lawmakers and public.
MS. KENT, in response to a question, explained that after the
state attains primacy, the EPA will maintain an oversight role
and will be looking over the state's shoulder to ensure that the
state program is run the way the EPA thinks it should be run,
that the state program meets the standards established in the
federal Clean Water Act, and that the state's funding of the
program doesn't dip below the level necessary to run a credible
program. In response to another question, she said that in
order to rank the different types of discharges according to
cleanliness, the DEC would use "water quality standards" to
define "clean water" and would consider facility-specific
[criteria].
COMMISSIONER HARTIG added that any discharges must meet the
water quality criteria established by regulation and that
criteria would cover "drinking water standards," though there
may be secondary issues such as taste, appearance, and smell;
from an environmental standpoint, all discharges should be
relatively equal. In response to a further question, he said
that if all discharges are meeting water quality standards, then
they are meeting Alaska law, which is designed to protect the
environment, and that if permit holders are meeting the
monitoring requirements of the NPDES program, they will be
meeting all the requirements of Alaska law.
CHAIR RAMRAS surmised that failure to properly monitor, sample,
and report would result in a criminal violation.
2:27:22 PM
MR. LEONARD said that a negligent failure to comply with any of
the [NPDES} program requirements would subject a permit holder
to the criminal penalty established by Section 8 of HB 149. In
response to another question, he said that any such violations
could also be pursued civilly.
CHAIR RAMRAS asked why the NPDES program contains an exemption
for cruise ships.
MR. LEONARD offered his understanding that the NPDES program
generally exempts discharges from all vessels, not just cruise
ships.
COMMISSIONER HARTIG, in response to a question regarding
monitoring cruise ships, said that the DEC would do as directed
by the legislature.
CHAIR RAMRAS asked whether the standards outlined in the NPDES
program would provide adequate protection.
COMMISSIONER HARTIG offered his belief that the monitoring
aspect of the NPDES program, coupled with periodic inspections,
would provide adequate protection, particularly given the
histories of the facilities that would be covered under the
program. In response to comments, he relayed that if the state
doesn't attain primacy, it won't result in a cost savings to the
state, since it would still need those funds to run the existing
DEC program.
MR. LEONARD, in response to questions, said that Section 4
proposes to alter the exemptions outlined in AS 46.03.100(e) so
that they align with federal law; that these changes are
required in order for the EPA to approve the state's program;
and that under proposed AS 46.03.100(e)(1), a person discharging
only domestic sewage into a publicly owned treatment works would
be exempted from the permitting requirements outlined in AS
46.03.100. Again, Section 4 would merely align the state's
exemptions with the federal exemptions.
REPRESENTATIVE COGHILL expressed disfavor with Section 4's
proposal - via paragraphs (4) and (7) - to insert the term,
"waters of the United States" into state statute. He questioned
whether doing so would result in the state surrendering
something.
MR. LEONARD, returning to his sectional analysis of HB 149,
reiterated his explanations of Sections 5 and 8, and relayed
that Sections 6 and 7 address terminology and clarify that the
term "waste material" as used in state law includes "pollutants"
as defined under the Clean Water Act.
2:39:42 PM
REPRESENTATIVE COGHILL asked whether the code referenced in
Section 6 regarding the definition of "pollutants" could be
amended.
MR. LEONARD said that that definition could be changed by
Congress, though it hasn't been changed for quite some time.
Because Section 6 merely references the federal code, any change
to that code would, by reference, be incorporated into Alaska
law.
REPRESENTATIVE COGHILL opined that the bill should instead use
the terminology used in the referenced code - rather than merely
referencing that code - and surmised that doing so would enable
the state to become aware of any changes made to the federal
code.
REPRESENTATIVE GRUENBERG asked whether the aforementioned code
must be referenced in state statute - rather than having its
verbiage merely duplicated - in order for the state to be in
compliance for purposes of attaining primacy.
MR. LEONARD indicated that the code did need to be referenced.
REPRESENTATIVE HOLMES asked whether the bill proposes to make
any changes other than what is strictly required to attain
primacy.
MR. LEONARD said it does not. In response to another question,
he said that the state may establish more stringent standards
than those outlined in federal law.
COMMISSIONER HARTIG, in response to a further question, relayed
that the EPA will retain its authority in the other
environmental programs it shares with the state, and that HB 149
only addresses primacy as it relates to the NPDES program.
MS. KENT, in response to a question, said that 43 employees
currently administer the state's existing program.
2:44:27 PM
REPRESENTATIVE GRUENBERG, referring to a letter from the
Sealaska Corporation dated 4/10/07, asked whether currently all
litigation pertaining to discharge permits goes through the
federal courts.
COMMISSIONER HARTIG said that currently, with the EPA
administering the NPDES program, an appeal regarding an NPDES
permit is initially heard by the EPA's Environmental Appeals
Board and then by the 9th Circuit Court of Appeals if someone
wishes to pursue the appeal further. In response to a question,
he offered his understanding that after the state attains
primacy and after July 1, 2007, such an appeal would be dealt
with via the state's Office of Administrative Hearings, and then
by the Alaska Superior Court.
MR. LEONARD relayed that currently, in addition to the federal
appeal process, a person could raise a challenge - through the
state appeal process - regarding the state's role in certifying
an NPDES permit. One advantage of attaining primacy is that
there will only be one avenue of judicial review.
REPRESENTATIVE GRUENBERG characterized that as a major advantage
from a legal point of view.
2:48:16 PM
REPRESENTATIVE SAMUELS moved to report CSHB 149(RES) out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSHB 149(RES) was
reported from the House Judiciary Standing Committee.
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:48 p.m.