SENATE RESOURCES COMMITTEE May 3, 1996 12:40 p.m. MEMBERS PRESENT Senator Loren Leman, Chairman Senator Drue Pearce, Vice Chairman Senator Steve Frank Senator Rick Halford Senator Robin Taylor Senator Georgianna Lincoln MEMBERS ABSENT Senator Lyman Hoffman COMMITTEE CALENDAR CS FOR HOUSE BILL NO. 342(RES) am "An Act relating to water quality." HOUSE JOINT RESOLUTION NO. 66 am Relating to opposing the American Heritage Areas Program. PREVIOUS SENATE COMMITTEE ACTION HB 342 - See Resources minutes dated 5/1/96 & 5/2/96. HJR 66 - See Resources minutes dated 5/1/96 & 5/2/96. WITNESS REGISTER Representative Norman Rokeberg State Capitol Juneau, AK 99801-1182 POSITION STATEMENT: Prime sponsor of HB 342 Gershon Cohen, Executive Director Alaska Clean Water Alliance Haines, AK POSITION STATEMENT: Has concerns with SCS CSHB 342(RES) Julie Penn Alaska Environmental Lobby P.O. Box 22151 Juneau, AK 99801 POSITION STATEMENT: Voiced concerns with SCS CSHB 342(RES) Janice Adair, Director Division of Environmental Health Department of Environmental Conservation 555 Cordova St. Anchorage, AK 99501 POSITION STATEMENT: Outlined department's concerns with SCS CSHB 342(RES) Bruce Campbell, Staff to Representative Pete Kelly State Capitol Juneau, AK 99801-1182 POSITION STATEMENT: Offered information on SCS CSHB 342(RES) Shirley Armstrong, Staff to Representative Norman Rokeberg State Capitol Juneau, AK 99801-1182 POSITION STATEMENT: Offered information on SCS CSHB 342(RES) Marieke Nordliner, Staff to Representative Gail Phillips State Capitol Juneau, AK 99801-1182 POSITION STATEMENT: Offered information on HJR 66 am Dick Bishop, Executive Director Alaska Outdoor Council P.O. Box 73902 Fairbanks, AK 99707 POSITION STATEMENT: Testified in support of HJR 66 am ACTION NARRATIVE TAPE 96-72, SIDE A Number 001 CSHB 342(RES) am WATER QUALITY STANDARDS  CHAIRMAN LEMAN called the Senate Resources Committee meeting to order at 12:40 p.m., and brought CSHB 342(RES) am before the committee as the first order of business. He stated the committee lacked a quorum, but that testimony would be taken on the calendared legislation until a quorum was established. CHAIRMAN LEMAN directed attention to a new draft SCS CSHB 342(RES), version "Z." The committee had previously taken testimony on a version "W" of the committee substitute from several people including the Department of Environmental Conservation, as well as receiving substantial written response. He said in the interest of accommodating the various people who have written and provided verbal response, several of those comments have been incorporated into the new version. He then outlined the following differences between version "W" and the new version "Z": Section 2 has been reformatted. The four subsections have been placed in a different order, going in the order from water quality standards down to measurements. In the new subsection (a), paragraph (4), the language "in a more restrictive use classification or otherwise cleaner" has been deleted. The department pointed out that "of a higher quality" and "or otherwise cleaner" essentially have the same the meaning. The language "in a more restrictive use classification" really does not relate to the discharge water; it has to do with the receiving water. Under "Special Procedures for Certain Water Quality Regulations" some editorial changes were made that are not significant. Subparagraph (B) under paragraph (3) has been moved under paragraph (2) and reworded to make it read easier. The phrase "or contaminated sea life consumption rates" and the definition of "contaminated sea life" has been deleted where it appears in the section. REPRESENTATIVE ROKEBERG , prime sponsor of HB 342, stated his support for the minor changes in SCS CSHB 342(RES) version "Z." Number 109 GERSHON COHEN , Executive Director, Alaska Clean Water Alliance, testifying via teleconference from Haines, addressed his comments to the new SCS CSHB 342(RES). He stated he has a number of concerns with subparagraph (b) on page 2. He does not think the department should adopt general language that prohibits the adoption of water quality standards more protective than federal standards because the water quality in most locations of Alaska far exceeds the quality in waters in most of the United States. He also does not believe the 90-day limitation on the review of an applicant's request for regulatory changes is adequate because with the current staffing levels at DEC, he does not think it is enough time for the state to adequately review the application, as well as there is no justification language for the request. He referred to page 3, line 12, and he said he does not think that the DEC people, by and large, are really qualified to make economic considerations, and it is not clear in the bill even what criteria will be used to make such a decision. Referring to page 3, line 24, which relates to the management of sediment, Mr. Cohen said that language isn't clear, as well as he doesn't think the Imhoff cone method is an adequate surrogate for measuring sediment. Mr. Cohen thanked the committee for the opportunity to comment. Number 200 CHAIRMAN LEMAN , referring to Mr. Cohen's comments on the measurement of sediment, said when the permit requires sediment to be measured under this bill, it will be by the Imhoff cone method for settleable solids. Standard Methods provides for the volumetric method and the gravimetric method for measuring settleable solids. He clarified this section is saying that for measuring sediment that will be method used, so it will be a settleable solids test with the Imhoff cone, using the volumetric method. MR. COHEN said his concern goes back to discussions over the last few years over the water quality standards and the dropping of the sediment regulation because of the inappropriateness of that test. He understands that DEC is looking into what tests, if any, should be used for sediment, and they are supposed to be coming up with something by midsummer for both sediment and hydrocarbons to see if the tests that are listed in the regulations will actually do the job. CHAIRMAN LEMAN said he is aware of the study, and he would expect that if at sometime DEC would propose to have a different methodology, it could be addressed. Number 235 JULIE PENN , representing the Alaska Environmental Lobby, said she believes that HB 342 will weaken Alaska's water quality standards for the benefit of industry and at the expense of the public good. She thinks the 90-day period for DEC to complete a scientific evaluation and to craft regulatory language is too brief, and the written standards required of DEC in order to implement more stringent standards are nearly impossible to meet. Number 296 JANICE ADAIR , Director, Division of Environmental Health, Department of Environmental Conservation, said that as testified to earlier, the department has serious concern and does not support the requirement that sediment only ever be settleable solids, which is contrary to the agreement that DEC reached with interest groups this past summer. She said the special procedures for certain water quality regulations now also include where DEC is going to do something that's less restrictive. The essence of this now is that if DEC proposes something more stringent, less stringent, or no federal standard, they have to go through this process. So, in other words, they will have to go through this process every time, and the department cannot do that, she said. Ms. Adair noted that the consideration of economic and technological feasibility has now been elevated to a written finding, and that is also something else the department does not have the ability to do, particularly in 90 days. Ms. Adair pointed out that when DEC veers from federal criteria, they have to justify that to the EPA. When they are more stringent than the EPA, they have to provide them with their scientific justification for that. Ms. Adair also voiced concern with the provision relating to a request to the department to change its standards within a certain time frame. She questioned if it is something that the department can reasonably do in 90 days, or will they will turn into a standard setting program as opposed to being able to certify and issue permits. Ms. Adair said if it is the intent of the Legislature to establish parameters around which DEC adopts water quality standards and to set up a process that the department has to follow to do something different or more stringent than the federal government, she believes it can be done in a reasonable, rational fashion that does not threaten the other workload of the program staff. She added that this is a chronically underfunded program. CHAIRMAN LEMAN asked Ms. Adair what other word she would rather have in the bill than "findings." MS. ADAIR responded that this was discussed at length in House Resources, and the findings language was changed to "considerations in writing" to get around the problem of findings being something more formal, more analytical, more in depth than what the department can do. REPRESENTATIVE ROKEBERG acknowledged that accommodation was made in the House Resources Committee, particularly as it related to the economic feasibility, but not the technical feasibility. Number 455 CHAIRMAN LEMAN stated that he believes it is because of a failure in the department to adequately address needs of the public that this legislation was introduced, and it would be his preference that the Legislature not even be considering this bill. If the department would have, over the years, addressed these in a common sense approach, this bill would not be needed. Responding to Chairman Leman's comments, MS. ADAIR said it is absolutely a management issue, and she doesn't think anybody disputes the fact that this program has not been the beneficiary of the kind of management that it needs. She thinks the agreement, if nothing else, was a first step in trying to categorize what needs to be done, prioritize those things that need to be done, and then get on with it. CHAIRMAN LEMAN closed the public comment on HB 342 and stated the bill would be set aside until a quorum was established. Number 464 HJR 66 am OPPOSE AMERICAN HERITAGE AREAS  CHAIRMAN LEMAN brought HJR 66 am, sponsored by the House Rules Committee, before the committee as the next order of business. MARIEKE NORDLINER , staff to Representative Gail Phillips, explained the resolution was drafted in response to a congressional bill currently before Congress that is unfriendly to Alaska. In opposing that bill, as currently drafted, HJR 66 requests amendments specifically to protect private property rights, and it specifically opposes the increased authority handed to the Secretary of the Interior under the current bill. DICK BISHOP , Executive Director, Alaska Outdoor Council, voiced AOC's strong support for HJR 66. Under the bill in Congress, the National Park Service would be able to administratively designate natural heritage areas, and with that, could go restrictions that in addition to being inconsistent with private property rights, would be inconsistent with other uses by other people. The Council feels that the legislation is not an appropriate measure to be passed by Congress, and they will work to that end. CHAIRMAN LEMAN asked if there was any testimony in the House opposing this resolution. MS. NORDLINER responded that the National Park Service called and they were upset at what they perceive to be a slap in the face to the Park Service, and the resolution was amended to remove the language they found aggressive. There being no further testimony on HJR 66 am, CHAIRMAN LEMAN closed the public hearing and stated the committee would stand at ease until a quorum was established. CHAIRMAN LEMAN called the meeting back to order at 1:45 p.m., and noted there was a quorum present. CHAIRMAN LEMAN brought HJR 66 am (OPPOSE AMERICAN HERITAGE AREAS) back before the committee. Hearing no further discussion on the resolution, he asked for the pleasure of the committee. SENATOR PEARCE moved HJR 66 am be passed out of committee with individual recommendations. Hearing no objection, it was so ordered. CHAIRMAN LEMAN brought CSHB 342(RES) am (WATER QUALITY STANDARDS) back before the committee. SENATOR FRANK moved the adoption of SCS CSHB 342(RES), version "Z". Hearing no objection, it was so ordered. CHAIRMAN LEMAN then reviewed the changes made in SCS CSHB 342(RES) for the committee members who were not present for the overview earlier in the meeting. MS. ADAIR also restated DEC's concerns with the legislation. TAPE 96-72, SIDE B Number 070 CHAIRMAN LEMAN pointed out that there had been an earlier discussion on Ms. Adair's concern with the "findings" provision. He stated, for the record, that it would be his intent that these findings not become substantial documents, but that they would be technically correct and, yet, common findings that the DEC staff should have the capability to produce. It would be a written justification for the action that would be technically based. SENATOR TAYLOR referred to a press release from the Office of the Governor, and he asked Ms. Adair if the committee substitute being discussed comports with the provisions cited in the press release. MS. ADAIR explained that the press release was intended to demonstrate for the committee the agreement that was brokered by former Commissioner Burden on settling a petition on water quality standards. As a part of that agreement, the department agreed to go ahead with some studies that are to be finished by July 1996. In the department's opinion, this legislation would prejudge the outcome of at least one of those studies. Number 125 In response to a question from Senator Taylor, MS. ADAIR said the Department of Law has concurred that without changing the definition of "sediment," which is a standard definition, they would not be able to have a measurement mechanism for total suspended solids. This would mean that there would be no way to then measure a standard, so there would no way to have an enforceable standard for it. CHAIRMAN LEMAN commented that he did not agree with Ms. Adair or the Department of Law, because he believes all they have to do is to not write it in the permit as sediment if they want to measure total suspended solids -- do it the same way as for other effluent discharges. SENATOR FRANK questioned the necessity of passing the bill and what it would accomplish. BRUCE CAMPBELL , staff to Representative Pete Kelly, said it was his understanding that the purpose of the bill is to give some policy guidance to the Department of Environmental Conservation on the functions and parameters in which it is going to regulate members of the public. One of those parameters that is used under 18 AC 70 020 is sediment. Those regulations define sediment and the parameter has been and would continue to be under this bill the Imhoff cone method for measuring settleable solids. CHAIRMAN LEMAN further explained that the bill provides that if you are requiring a measurement for sediment it shall be the volumetric method for measuring settleable solids, but if you want to measure for total suspended solids or total dissolved solids, etc., then you define that and require that; there just has to be technical justification for it. SENATOR FRANK asked if this provision will lead the department toward a settleable solids measurement rather than a turbidity measurement. MR. CAMPBELL clarified there are two different standards to meet, the settleable solids and the turbidity. Number 224 SENATOR FRANK made reference to a letter from the Placer Miners of Alaska suggesting that on page 2, line 21, remove the language "and maintain the state's aquatic productivity," and he asked why that language was in the bill. MR. CAMPBELL replied it was his understanding that this language was added as a part of a compromise between the sponsor and the Department of Fish & Game. The department would like to continue to have their most restrictive standards, which are the standards for aquatic productivity, added to DEC's standards for compliance with permits. Number 310 SENATOR TAYLOR asked if water flowing out of fish hatcheries are exempt from these water standards. MS. ADAIR responded that it is her understanding that there are some processors that do have these permits, but the hatcheries typically do not because their discharges are below the level that requires the permits. SENATOR TAYLOR said he didn't think that was an accurate statement. He thinks they were waived with DEC's regulations about seven or eight years ago about three weeks after he asked the very same question on a very similar bill in the Senate Judiciary Committee. The regulations were amended so that the fish hatcheries would not have to comply by putting in settling ponds, filtration plants, etc. He pointed out that the fish food sacks in these hatcheries contain some of the most toxic chemicals going, and he suggested perhaps something should be inserted in this bill that absolutely makes every single fish hatchery comply with the requirements for settleable solids. MS. ADAIR said she would look into Senator Taylor's concern. Number 355 Returning to the standards for aquatic productivity language, SENATOR FRANK asked if that language is existing law. BRUCE CAMPBELL responded that it is part of the regulations. SENATOR FRANK voiced his concern with having this language in the bill because this state has done everything it can to shut down the mining industry and he doesn't want to give them any more tools to do it with. He said he hasn't a heard a good reason why those words should be in the bill. SHIRLEY ARMSTRONG , staff to Representative Rokeberg, explained the language was a compromise with the Department of Fish & Game's legislative liaison. They wanted to use the more generic term "environment," and if they didn't get that term, they wanted to use the term "to maintain and protect the aquatic productivity in individual water bodies." BRUCE CAMPBELL added that the term is already in the Fish & Game statutes, and adding it to this bill clearly places that burden also on DEC, to be applying those same concerns. He said the placer miners are concerned that the far more restrictive standards that come from Fish & Game would then be further applied and become even more stringent in this issue. He noted it is the Department of Fish & Game that demanded to go more stringent in the Governor's cabinet meeting. SENATOR LINCOLN said she thought the language should be left in the bill to ensure that when DEC reviews the water quality standards, that they are protecting the aquatic productivity, and she thinks they can work with the placer miners to make sure there is the protection for the fish, as well as allowing the mining to continue. Number 520 After further discussion on the phrase, SENATOR TAYLOR moved that on page 1, line 13, delete the words "and maintain the state's aquatic productivity, and on page 3, line 18, delete the words "or to maintain the state's aquatic productivity." SENATOR LINCOLN objected. The roll was taken with the following result: Senators Halford, Taylor and Frank voted "Yea" and Senators Lincoln and Leman voted "Nay." The Chairman stated the amendment passed on a 3-2 vote. Number 560 SENATOR TAYLOR noted Alaska has many streams that are glacier fed, and he asked if those streams could ever meet any of the standards that are being expected of other people. MS. ADAIR informed him that in reading the water quality regulations she gleaned that the natural condition of a water body is taken into account when a permit would be issued to determine what standards have to be met. TAPE 96-73, SIDE A Number 010 SENATOR HALFORD moved that on page 1, line 12, at the end of the sentence insert the words "and propagation of fish and wildlife" and on page 3, line 18, after the word "welfare" insert "propagation of fish and wildlife. SENATOR FRANK objected. The roll was taken with the following result: Senators Taylor, Halford, Lincoln and Leman voted "Yea" and Senator Frank voted "Nay." The Chairman stated the amendment passed on a 4-1 vote. There being no further amendments or testimony on SCS CSHB 342(RES), CHAIRMAN LEMAN asked for the pleasure of the committee. SENATOR HALFORD moved that SCS CSHB 342(RES), as amended, and the accompanying fiscal notes be passed out of committee with individual recommendations. Hearing no objection, it was so ordered. There being no further business to come before the committee, the meeting was adjourned at 2:45 p.m.