Legislature(2009 - 2010)BARNES 124

03/31/2009 10:15 AM FISHERIES


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ SB 3 CFEC AS INFORMATION RESOURCE TELECONFERENCED
Moved Out of Committee
*+ HB 46 MIXING ZONES/SEWAGE SYSTEMS TELECONFERENCED
Heard & Held
HB  46-MIXING ZONES/SEWAGE SYSTEMS                                                                                            
                                                                                                                                
10:33:56 AM                                                                                                                   
                                                                                                                                
CHAIR EDGMON announced that the  final order of business would be                                                               
HOUSE  BILL  NO.   46,  "An  Act  requiring   the  Department  of                                                               
Environmental Conservation  to collect and make  available to the                                                               
public   certain  information   relating   to  water   pollution;                                                               
prohibiting certain  mixing zones in freshwater  spawning waters;                                                               
and requiring a  public comment period for  certain sewage system                                                               
or treatment works modifications."                                                                                              
                                                                                                                                
10:34:09 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  PAUL SEATON,  Alaska State  Legislature, speaking                                                               
as the  prime sponsor of HB  46, informed the committee  that for                                                               
many  years  there  has  been  a  prohibition  against  having  a                                                               
pollution mixing  zone in a spawning  area.  A spawning  area, he                                                               
explained, is  an area in  which anadromous fish or  redds exist.                                                               
A  redd is  a nest.   The  previous prohibition  didn't apply  to                                                               
broadcast spawners and  that would remain in HB 46.   Most of the                                                               
freshwater fish,  subsistence reliance  fish, and  salmon species                                                               
reproduce  using  redds.     He  noted  that   under  a  previous                                                               
administration ADF&G  changed the  definition of  "spawning area"                                                               
from an  area and  a place  to a  place and  a time.   Therefore,                                                               
there was  the notion of a  temporal spawning area, such  that so                                                               
long as the fish weren't laying  eggs at the time the area wasn't                                                               
considered a  spawning area.   The aforementioned  is problematic                                                               
due to the  delicateness of the eggs.   This legislation attempts                                                               
to  reestablish the  protection  that existed  prior to  Governor                                                               
Murkowski's  Administration.    Therefore,   mixing  zones  in  a                                                               
spawning area wouldn't be allowed.                                                                                              
                                                                                                                                
REPRESENTATIVE SEATON explained that a  mixing zone is an area in                                                               
a water body  that's allowed to be polluted to  a level above the                                                               
state water quality  limits.  He noted that a  mixing zone permit                                                               
has  to   be  obtained  from  the   Department  of  Environmental                                                               
Conservation (DEC).   The permit  specifies the size of  the area                                                               
in the fresh water body where  the water quality standards can be                                                               
exceeded.    The  measurement  of the  standards  occurs  at  the                                                               
outside of the [discharge] area.   He noted that some zones are a                                                               
mile long from  the point of discharge to the  point at which the                                                               
concentration is  measured.   At this  point, the  public doesn't                                                               
have a  way of translating  the concentration reported to  DEC in                                                               
terms of how much of each  contaminant is being dumped in a year.                                                               
Therefore, HB 46  would require new or renewed  permits to report                                                               
the  estimated  amount of  contaminant  as  well as  the  already                                                               
required reporting of the concentration and the volume.                                                                         
                                                                                                                                
REPRESENTATIVE  SEATON explained  that  HB 46  requires a  public                                                               
comment period  when the size  of a sewage treatment  facility is                                                               
expanded  by 50  percent or  greater.   He pointed  out that  the                                                               
committee packet  includes documentation of a  situation in which                                                               
there was  a sewage  disposal area that  grew from  1,500 gallons                                                               
per day to 6,000  gallons per day 20 years later.   In this case,                                                               
the residents  weren't allowed to comment  on this administrative                                                               
change to the permit.  Therefore,  HB 46 protects the public when                                                               
expansion is  greater than 50  percent by providing for  a public                                                               
comment  period.    This  legislation,  he  opined,  is  consumer                                                               
protection legislation.                                                                                                         
                                                                                                                                
10:42:04 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE SEATON  then informed the committee  of a proposed                                                               
amendment that would insert  the language "commercially operated"                                                               
on  page  3, line  24,  following  the  language  "for a".    The                                                               
aforementioned  change   clarifies  that  the   sewage  treatment                                                               
facility  is   commercially  operated.    He   characterized  the                                                               
aforementioned as  a drafting error.   With regard to  the fiscal                                                               
note, Representative  Seaton explained  that the  legislation was                                                               
drafted so that  it wouldn't have to apply to  all the permits in                                                               
existence.   Therefore,  the fiscal  note is  somewhat confusing.                                                               
He clarified  that no existing  permits will have to  apply until                                                               
the permit  has to be  reissued or  modified, at which  point the                                                               
permittee would  be provided the  instructions regarding  what is                                                               
required to  be reported.  He  presumed that DEC would  utilize a                                                               
spreadsheet with  the calculations, which could  be easily posted                                                               
on the  department's web  site.  This  isn't something  that will                                                               
have to be supervised, he further clarified.                                                                                    
                                                                                                                                
10:45:50 AM                                                                                                                   
                                                                                                                                
CHAIR  EDGMON  noted  that the  committee  packet  includes  some                                                               
conceptual  amendments that  the  committee will  address at  the                                                               
next hearing on SB 46.                                                                                                          
                                                                                                                                
10:46:14 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE SEATON  noted that one of  the amendments provides                                                               
a definition of  the language "useful life" in order  to be clear                                                               
as  to the  specific statutory  reference to  "useful life"  that                                                               
would be  used.  The specific  definition of "useful life"  is as                                                               
follows:  "the anticipated time  in which a facility can continue                                                               
to be operated without replacement or major renovation."                                                                        
                                                                                                                                
10:46:50 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE MILLETT  asked if  DEC or  ADF&G reviews  the area                                                               
for spawning grounds prior to issuing or granting a permit                                                                      
                                                                                                                                
REPRESENTATIVE  SEATON   answered  that  the  department   has  a                                                               
registry for anadromous fish.   Furthermore, [ADF&G] is consulted                                                               
when there's a mixing zone permit  in order to review the area or                                                               
require the  permittee to  provide certain  information regarding                                                               
what is present in the area.                                                                                                    
                                                                                                                                
10:48:04 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  BUCH  asked  if   the  registry  is  upgraded  as                                                               
requirements change.                                                                                                            
                                                                                                                                
REPRESENTATIVE  SEATON replied  yes, the  anadromous registry  is                                                               
updated as reports  are submitted.  He  related his understanding                                                               
that  there  isn't  an  all-Alaska survey  every  year,  but  the                                                               
anadromous stream  designations are  updated.   This legislation,                                                               
he  clarified,  only addresses  fresh  water,  not marine  water.                                                               
Furthermore, HB 46 specifies  that artificially constructed ponds                                                               
or  channels that  are later  invaded by  fish species  cannot be                                                               
declared a  spawning area.  He  posed an example in  which a fish                                                               
species invades the  settling pond of a mine as  one in which the                                                               
aforementioned would apply.                                                                                                     
                                                                                                                                
10:50:46 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  MUNOZ related  her  understanding that  currently                                                               
mixing  zones have  been issued  for  seafood processing,  placer                                                               
mines, oil  and gas related  facilities, large  mines, fertilizer                                                               
plants,  et cetera.   She  inquired as  to how  many business  or                                                               
municipal entities will be affected by HB 46.                                                                                   
                                                                                                                                
REPRESENTATIVE  SEATON   pointed  out  that  HB   46  includes  a                                                               
grandfather  clause,  and therefore  any  area  that was  invaded                                                               
after  the   permit  would  be  classified   as  an  artificially                                                               
constructed pond or  channel.  Therefore, such  areas wouldn't be                                                               
classified as a spawning area.   He highlighted that fish do move                                                               
around.   He  noted that  another proposed  amendment to  page 3,                                                               
line 5, would  insert the following language:  ",  or for an area                                                               
where spawning was ongoing at  the time of initial authorization,                                                               
if that authorization occurred more  than five years prior to the                                                               
effective date of the bill."   The aforementioned addresses those                                                               
village   wastewater  facilities   that   weren't  permitted   or                                                               
authorized.                                                                                                                     
                                                                                                                                
10:52:39 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  MUNOZ  inquired  as  to how  many  businesses  or                                                               
municipal entities will be impacted.                                                                                            
                                                                                                                                
10:53:09 AM                                                                                                                   
                                                                                                                                
LOUIE   FLORA,  Staff,   Representative   Seaton,  Alaska   State                                                               
Legislature,  related his  understanding  that  the existing  DEC                                                               
regulations  for the  spawning  area allowance  haven't yet  been                                                               
certified   by  the   Environmental   Protection  Agency   (EPA).                                                               
Therefore, there would  be no businesses impacted  by the changes                                                               
proposed  in HB  46 because  no mixing  zone permits  in spawning                                                               
areas  have been  granted.   He noted  that the  committee packet                                                               
includes  a list  of  the authorized  mixing zones  in  2006.   A                                                               
number of  those listed are  for salt water and  this legislation                                                               
only addresses fresh water.                                                                                                     
                                                                                                                                
10:54:37 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  SEATON reiterated  that  the legislation  returns                                                               
the  mixing  zone  language  that  was  in  place  prior  to  the                                                               
Murkowski Administration.   He emphasized that every  mine in the                                                               
state was  permitted under the  conditions in place prior  to the                                                               
Murkowski Administration, save  the POGO Mine.   The question, he                                                               
stated,  is  whether to  have  criteria  to protect  the  state's                                                               
renewable resources.   The  bill contains  no language  that will                                                               
prevent  any operation  from being  permitted,  if the  operation                                                               
meets  the state's  water quality  standards.   The  only time  a                                                               
mixing zone  is required  is when the  discharge into  the stream                                                               
doesn't meet the  state's water quality standards.   The question                                                               
then is  how far downstream will  the area of water  that doesn't                                                               
meet the state's water quality standards be located, he noted.                                                                  
                                                                                                                                
10:57:06 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  MUNOZ  inquired as  to  how  the fish  processing                                                               
facilities on  the Nushagak River,  a major spawning  area, would                                                               
be impacted by HB 46.                                                                                                           
                                                                                                                                
CHAIR  EDGMON clarified  that the  seafood processing  facilities                                                               
are located  in the salt  water portion of  the river, and  HB 46                                                               
only addresses fresh water.                                                                                                     
                                                                                                                                
REPRESENTATIVE  SEATON  interjected  that HB  46  only  addresses                                                               
spawning areas, not migration routes.   He reminded the committee                                                               
that there was  a certified initiative that  had language similar                                                               
to that  in HB 46 except  that the definition of  "spawning area"                                                               
referred  to  anywhere that  fish  spawned,  reared, or  migrated                                                               
through.    That initiative  wasn't  forwarded,  he noted.    The                                                               
initiative would've  resulted in  no mixing zones  in any  of the                                                               
waters in the state.                                                                                                            
                                                                                                                                
10:58:36 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  MILLETT  inquired as  to  how  many mixing  zones                                                               
currently exist in spawning waters.                                                                                             
                                                                                                                                
MR.  FLORA  recalled that  he  has  information regarding  placer                                                               
mines that  were authorized with timing  restrictions in spawning                                                               
areas.   Although he offered  to provide that information  to the                                                               
committee,   he  suggested   that  perhaps   it  would   be  more                                                               
appropriate  for the  department  to update  its  materials.   He                                                               
noted  that  currently 59  placer  mines  are operating  under  a                                                               
general  permit, with  site specific  fresh  water mixing  zones.                                                               
Whether those are authorized for  spawning areas would have to be                                                               
detailed  by  the department.    He  mentioned  that HB  46  does                                                               
include  a blanket  exemption for  placer  mine turbidity  mixing                                                               
zones, which has been a  bone of contention for previous versions                                                               
of the legislation.  Therefore,  the sponsor wanted to "take that                                                               
off the  table" and protect  all the  mom and pop  businesses and                                                               
the placer  mines in order  to allow  a turbidity mixing  zone so                                                               
long as DEC approves such, in consultation with ADF&G.                                                                          
                                                                                                                                
11:00:12 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  MILLETT  surmised  then  that  placer  mines  are                                                               
exempt,  and  therefore  the  sponsor must  trust  that  DEC  can                                                               
recognize a spawning area for placer mines.                                                                                     
                                                                                                                                
MR. FLORA clarified that's the case for turbidity mixing zones.                                                                 
                                                                                                                                
REPRESENTATIVE  SEATON  explained  that   often  in  placer  mine                                                               
operations,  turbidity  has  been   used  as  a  replacement  for                                                               
arsenic.   This turbidity would  be from stirring the  water, not                                                               
putting anything  in the water,  he clarified.   This legislation                                                               
exempts the  turbidity requirement.   However,  if ADF&G  and DEC                                                               
find that  there is a placer  mine that will put  out enough silt                                                               
that it  will bury a spawning  ground, ADF&G would object  to the                                                               
permit.   Although there are  turbidity zones that are  1.5 miles                                                               
in length,  settling ponds are  often used rather  than turbidity                                                               
zones.    The intention,  he  specified,  is  to protect,  on  an                                                               
ongoing basis, the environment that  is necessary for the state's                                                               
sustainable resources  without placing  unreasonable restrictions                                                               
on the mining industry.                                                                                                         
                                                                                                                                
11:03:11 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  MILLETT  asked  whether  current  statutes  don't                                                               
protect spawning beds.   She also asked whether  DEC is currently                                                               
accomplishing levels of sustainability  with the state's spawning                                                               
areas.                                                                                                                          
                                                                                                                                
REPRESENTATIVE  SEATON  answered  that  to date  the  EPA  hasn't                                                               
implemented  the  regulations  allowing DEC  to  grant  pollution                                                               
mixing zones in spawning areas.   This legislation is a proactive                                                               
step  to reestablish  the  language that  existed  [prior to  the                                                               
Murkowski  Administration]  when  all  of the  large  mines  were                                                               
operating.  He opined that  it's important for the legislature to                                                               
take a  stance on  the best  means for  allowing mixing  zones in                                                               
relation to spawning areas.                                                                                                     
                                                                                                                                
11:06:03 AM                                                                                                                   
                                                                                                                                
LYNN  TOMICH KENT,  Director, Division  of  Water, Department  of                                                               
Environmental Conservation,  began by relating that  the division                                                               
is  a  bit confused  regarding  the  reasons  for  HB 46  or  the                                                               
problems  it intends  to solve.   She  related that  the division                                                               
isn't  aware of  any water  quality damage  or concerns  with the                                                               
existing   policy   or   with  DEC's   existing   water   quality                                                               
regulations.   Currently, a very  rigorous permitting  program is                                                               
in place,  a program that  includes water quality  monitoring and                                                               
reporting.  In  fact, many provisions in HB 46  seem to duplicate                                                               
already existing  protections.  For example,  regulations already                                                               
prohibit mixing zones  in anadromous salmon spawning  areas.  The                                                               
aforementioned  is  a  special protection  that  has  been  DEC's                                                               
regulations since 1975.  Furthermore,  the requirement in Section                                                               
3 of HB 46 for public  notice of specific permit modifications of                                                               
domestic wastewater discharges duplicates  existing state law and                                                               
regulation  in AS  46.03.110 and  18  AAC 15  respectively.   The                                                               
aforementioned laws already require  public notice for permits as                                                               
well  as for  any  significant permit  modifications.   Moreover,                                                               
existing  law  applies  to  all  permitted  facilities  not  just                                                               
domestic wastewater and sewage facilities.                                                                                      
                                                                                                                                
MS. KENT then opined:                                                                                                           
                                                                                                                                
     In our  view, the  details of protecting  water quality                                                                    
     really ought  to be left  to the agencies where  we can                                                                    
     look  at  very  site specific  issues,  the  conditions                                                                    
     associated with  a discharge and  the water  body where                                                                    
     we can consult  with the biologists at Fish  & Game and                                                                    
     make  those  decisions  based on  sound  science.    We                                                                    
     already  have a  duty under  state statute  to set  and                                                                    
     enforce standards  for prevention of pollution  and for                                                                    
     protection  of  Alaska's environment,  including  water                                                                    
     quality.   The  legislature  has directed  us, in  past                                                                    
     statutes, under  AS 46.03.070:  ...  "to determine what                                                                    
     qualities and  properties of water indicate  a polluted                                                                    
     condition,   actually   or   potentially   deleterious,                                                                    
     harmful, detrimental,  or injurious to aquatic  life or                                                                    
     their growth and propagation."   We think it's entirely                                                                    
     appropriate  that the  legislature hold  us accountable                                                                    
     for setting and enforcing  standards for water quality.                                                                    
     However, HB 46  seems to delve into  some very specific                                                                    
     types   of   facilities,    very   specific   permittee                                                                    
     monitoring  and reporting  requirements, and  even into                                                                    
     specific contaminants.  Finally,  we don't believe that                                                                    
     the  new  data  collection and  reporting  requirements                                                                    
     that  the bill  places  on  permittees really  provides                                                                    
     important  value.    The bill  requires  permittees  to                                                                    
     collect  new data,  including the  amount of  pollutant                                                                    
     and to  submit a new  annual report to  the department.                                                                    
     By  way of  background, for  most pollutants  our water                                                                    
     quality  standards, which  are set  in regulation,  are                                                                    
     based on a  concentration of the pollutant  that can be                                                                    
     present  in the  water body  without having  an adverse                                                                    
     impact on fish  or other aquatic life.   The wastewater                                                                    
     discharge permit limits, in the  permits that we issue,                                                                    
     are also  generally expressive of the  concentration of                                                                    
     the  pollutant  in the  district.    And that  data  is                                                                    
     already  required to  be  collected  by the  permittee,                                                                    
     reported to DEC,  and is available to the  public.  And                                                                    
     this is  very important because it's  the concentration                                                                    
     of  the contaminant  in  the water  body  that has  the                                                                    
     potential effect  on fish or  other aquatic  life; it's                                                                    
     really  not the  pounds or  the amount  of a  pollutant                                                                    
     discharge.     So,  we  are  thinking   that  this  new                                                                    
     permitting  requirement  for  reporting  on  amount  of                                                                    
     pollution doesn't  provide valuable information  to the                                                                    
     public   because  it   can't  be   compared  with   any                                                                    
     regulatory standards.   And it really can't  be used to                                                                    
     determine if there's any impact  or potential impact on                                                                    
     aquatic life.                                                                                                              
                                                                                                                                
MS. KENT then turned to the  fiscal note and opined that there is                                                               
a fiscal  impact associated  with HB  46.  The  DEC will  need to                                                               
revise its  regulations to implement the  new permittee reporting                                                               
requirements, upgrade the  permit data system, and  produce on an                                                               
ongoing basis a new annual report to be posted on the web.                                                                      
                                                                                                                                
11:11:11 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  SEATON related  his understanding  that for  many                                                               
years there were provisions that didn't  allow a mixing zone in a                                                               
spawning area.   In  fact, he  further related  his understanding                                                               
that  the aforementioned  statutory  language  was the  framework                                                               
under  which  most  mining operations  and  municipal  wastewater                                                               
operations were permitted.                                                                                                      
                                                                                                                                
MS.  KENT  confirmed  that DEC's  old  and  existing  regulations                                                               
prohibit  mixing  zones  in  salmon   spawning  areas,  with  one                                                               
exception.   She explained that the  exception is one in  which a                                                               
facility with a permitted discharge  that's invaded by a spawning                                                               
area can  retain its authorized mixing  zone so long as  it meets                                                               
all the  other permit conditions for  mixing zones.  The  old and                                                               
existing  DEC regulations  continue to  prohibit mixing  zones in                                                               
spawning  areas for  other listed  fish, the  same fish  that are                                                               
listed in  HB 46.   However, the  following exceptions exist:   a                                                               
mixing zone  that is authorized  when no  fish spawn in  the area                                                               
but do  so later and  if the discharged substance  doesn't impact                                                               
aquatic life.                                                                                                                   
                                                                                                                                
11:13:07 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE SEATON  asked if the  language in HB  46 regarding                                                               
mixing  zones in  resident spawning  areas is  the language  that                                                               
existed prior to the Murkowski Administration                                                                                   
                                                                                                                                
MS. KENT responded  that the language is similar;  however, HB 46                                                               
defines spawning area in a  manner that's very different from the                                                               
long-standing practice by the Division  of Habitat.  The division                                                               
has  defined spawning  areas to  include a  temporal aspect,  and                                                               
therefore  ADF&G considers  when  spawning is  occurring when  it                                                               
evaluates  projects  that  might  impact   a  water  body.    The                                                               
aforementioned  is considered  in  order to  determine whether  a                                                               
mixing  zone permit  could  be authorized  in  those areas  where                                                               
there  is intermittent  discharge by  having permit  restrictions                                                               
that  avoid  spawning areas  and  times  and  have no  impact  on                                                               
present or future  spawning.  In fact, under  the old regulations                                                               
permits  for  mixing  zones  have  been  authorized  with  timing                                                               
restrictions that  avoid spawning times and  impacts to spawning,                                                               
incubation, and rearing.                                                                                                        
                                                                                                                                
11:15:29 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  SEATON  returned  to  the  issue  of  the  public                                                               
process and public  notice.  He directed attention  to an October                                                               
23, 2007,  e-mail to  Louie Flora  from Renee  Evans.   Ms. Evans                                                               
says, "The public process occurs at  the time the State permit is                                                               
first   issued.     A   public   notice   is  not   required   to                                                               
administratively  continue a  permit  or to  renew  or amend  the                                                               
permit.    The  process  for   renewing  a  permit  is  found  in                                                               
regulation at  18 AAC 15.100."   He then pointed out  that 18 AAC                                                               
15.100 (d)  says, "An application for  a renewal of a  permit, or                                                               
amendment to  a permit or variance,  will be treated in  the same                                                               
manner as the  initial application, except that  public notice or                                                               
hearing  will not  be provided  for applications  for renewal  or                                                               
amendment."   Representative Seaton asked  if Ms. Kent  is saying                                                               
that  the   department  is  no   longer  operating   under  those                                                               
regulations.                                                                                                                    
                                                                                                                                
MS. KENT directed  attention to 18 AAC 15.100 (c),  which in part                                                               
read:   "A  permit  or variance  authorizes  only that  operation                                                               
specified   in  the   permit  or   variance.     Any   expansion,                                                               
modification, or other change in  a facility process or operation                                                               
which might result in an  increase in emissions or discharges, or                                                               
might  cause other  detrimental  environmental  impacts from  the                                                               
permittee's facility, requires  a new permit or  variance."  That                                                               
new permit would  have to go through a new  public process per 18                                                               
AAC 15.100(d).                                                                                                                  
                                                                                                                                
11:17:41 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  SEATON  said  that   he  finds  that  interesting                                                               
because he  has shared with  DEC the problems that  have resulted                                                               
in the expansion  of DEC's permit, such as with  the [Homer Honey                                                               
Bear    Septage   Disposal    Facility].       Furthermore,   the                                                               
aforementioned e-mail specifies that there  won't be a hearing on                                                               
the  application   for  renewal  or  amendment,   citing  18  AAC                                                               
15.100(d).                                                                                                                      
                                                                                                                                
MS.  KENT  said  that  although   she  isn't  familiar  with  the                                                               
particulars of the [Homer Honey  Bear Septage Disposal Facility],                                                               
it  is  possible that  a  facility  has increased  its  discharge                                                               
volume under  a general permit and  DEC didn't make it  to public                                                               
notice  on the  renewal of  that permit.   However,  generally if                                                               
there  is a  significant  change in  the  discharge, that  permit                                                               
would go out to public review when the permit is reissued.                                                                      
                                                                                                                                
REPRESENTATIVE SEATON  noted that  in this  case there  have been                                                               
public objections  due to the  expansion of the  facility without                                                               
public  notice.   Therefore, there  was the  need for  statute to                                                               
address the public notice.                                                                                                      
                                                                                                                                
MS. KENT remarked that Representative  Seaton may be referring to                                                               
a situation  in which the  general permit  has an upper  limit on                                                               
the amount of discharge and a  facility that is covered under the                                                               
general permit  with a  smaller discharge  subsequently increases                                                               
its volume, but remains within  the limits of the general permit.                                                               
The  aforementioned  situation  could   result  in  the  facility                                                               
increasing  its  discharge,  remaining  covered  under  the  same                                                               
permit  conditions,  and  not having  a  separate  public  notice                                                               
during  the  life of  the  general  permit.   However,  once  the                                                               
general permit  is renewed, public  comment would be taken.   She                                                               
noted  that  [general permits]  are  under  a five-year  rotation                                                               
basis.                                                                                                                          
                                                                                                                                
11:21:01 AM                                                                                                                   
                                                                                                                                
CHAIR  EDGMON  inquired  as  to   the  normal  circumstances  for                                                               
development when  DEC authorizes a  mixing zone permit  [with the                                                               
temporal aspect].  He asked if  the development would be a placer                                                               
mine or Title 16 activity.                                                                                                      
                                                                                                                                
MS. KENT  explained that  when a facility  applies for  a permit,                                                               
the permittee  is required to  report whether they  believe their                                                               
discharge may  be in a spawning  area.  The permittee's  claim is                                                               
not all that's relied upon, she  noted.  If there's a chance that                                                               
the  discharge will  be into  a  fresh water  spawning area,  the                                                               
application  and permit  information  are provided  to ADF&G  for                                                               
input.   The practice of DEC  is to have the  Division of Habitat                                                               
biologist review whether  or not the area is a  spawning area and                                                               
provide  times  when  the  area is  a  spawning,  incubation,  or                                                               
rearing  area.     Therefore,  if  the  discharge   can  be  made                                                               
intermittently to  avoid spawning,  incubation, and  rearing, the                                                               
facility may still  be permitted under current law.   If there is                                                               
not  a window  of opportunity  during which  the discharge  could                                                               
avoid impacts to spawning or  future spawning, then the permit is                                                               
denied.                                                                                                                         
                                                                                                                                
11:23:24 AM                                                                                                                   
                                                                                                                                
CHAIR  EDGMON related  his understanding  that all  of the  major                                                               
mines,  save the  POGO mine,  were permitted  under the  language                                                               
proposed  in  HB 46.    Therefore,  he  questioned what  type  of                                                               
development would  occur today that  would allow mixing  zones to                                                               
occur in spawning areas.                                                                                                        
                                                                                                                                
MS.  KENT answered  that placer  mines is  development for  which                                                               
timing restrictions  have been utilized  to avoid spawning.   The                                                               
state also  has sewage lagoons  throughout the state  that retain                                                               
the  water and  have  an occasional  discharge,  which are  often                                                               
timed  to avoid  impacts to  spawning.   There are  also drinking                                                               
water  systems  with filter  backwash  that  allow discharges  at                                                               
times when  there wouldn't be an  impact to spawning.   She noted                                                               
that  the   mines  have  been  permitted   largely  because  they                                                               
discharge in areas that aren't spawning areas.                                                                                  
                                                                                                                                
11:24:51 AM                                                                                                                   
                                                                                                                                
CHAIR  EDGMON inquired  as  to the  occurrence  level of  issuing                                                               
permits for mixing zones in spawning areas.                                                                                     
                                                                                                                                
MS.  KENT noted  that DEC's  data base  doesn't have  a field  to                                                               
allow a  mixing zone search.   However, a review of  the database                                                               
in 2006  found that there  are about 450 mixing  zones authorized                                                               
in the state.   Many of those mixing zones  are in marine waters,                                                               
which HB  46 would not impact.   The facilities with  mixing zone                                                               
permits  include   oil  and  gas,  seafood   processing,  mining,                                                               
construction,  and timber  facilities.   In  further response  to                                                               
Chair Edgmon, Ms.  Kent specified that there  are no [commercial]                                                               
wastewater discharge permits at the  Pebble Mine at this point as                                                               
the mine is still in the exploration phase.                                                                                     
                                                                                                                                
11:26:13 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  BUCH requested  a  report  regarding the  process                                                               
with the [Homer Honey Bear Septage Disposal Facility].                                                                          
                                                                                                                                
MS. KENT agreed to do so.                                                                                                       
                                                                                                                                
11:27:39 AM                                                                                                                   
                                                                                                                                
KIMBROUGH  MAUNEY, AmeriCorps  Volunteer, Alaska  Center for  the                                                               
Environment,  spoke in  favor of  HB 46.   She  then opined  that                                                               
agencies need to be strict  and serious about protecting spawning                                                               
grounds and  fresh water habitats.   This pro  active legislation                                                               
will  help  secure the  state's  future  fish populations.    Ms.                                                               
Mauney opined that factoring in  time of spawning seems dangerous                                                               
due  to  climate changes  that  can  alter life  cycle  patterns.                                                               
Furthermore,  the  agencies  seem  to need  clarity  on  defining                                                               
spawning  grounds and  their  location, which  HB  46 appears  to                                                               
address.   Recalling  her  work  on a  small  cruising vessel  in                                                               
Southeast  Alaska in  the  summer  and noting  that  she holds  a                                                               
degree in  oceanography, Ms. Mauney said  that tourists recognize                                                               
the fragility of contaminants to  the flora and fauna along fresh                                                               
water streams.   In  response to  the earlier  question regarding                                                               
how many businesses  would be impacted, she said  that it doesn't                                                               
matter because it  would be all the better for  businesses to pay                                                               
more  attention  to  their discharge  and  perhaps  develop  more                                                               
innovative ways to address discharge.   In conclusion, Ms. Mauney                                                               
encouraged the  committee to protect fish,  spawning grounds, and                                                               
migration routes whenever possible in  order to maintain a stable                                                               
and prosperous fish population.                                                                                                 
                                                                                                                                
11:31:05 AM                                                                                                                   
                                                                                                                                
CHAIR EDGMON announced  that public testimony would  be kept open                                                               
and HB 46 would be held over.                                                                                                 

Document Name Date/Time Subjects
CurrentlyAuthorizedMixingZones.PDF HFSH 3/31/2009 10:15:00 AM
HFSH 1/28/2010 10:15:00 AM
HB 46
DEC2006QandA.PDF HFSH 3/31/2009 10:15:00 AM
HFSH 1/28/2010 10:15:00 AM
HB 46
HB46--DECGeneralPermit.PDF HFSH 3/31/2009 10:15:00 AM
HFSH 1/28/2010 10:15:00 AM
HB 46
HB46--PermitRenewAmendRegs.PDF HFSH 3/31/2009 10:15:00 AM
HFSH 1/28/2010 10:15:00 AM
HB 46
SB3--3.31.09Packet.PDF HCRA 4/7/2009 8:00:00 AM
HFSH 3/31/2009 10:15:00 AM
SB 3
HB46--2007TestimonyDEC.PDF HFSH 3/31/2009 10:15:00 AM
HFSH 1/28/2010 10:15:00 AM
HB 46
HB46--SponsorStatementandSectional.PDF HFSH 3/31/2009 10:15:00 AM
HFSH 1/28/2010 10:15:00 AM
HB 46
HB46--HoneyBearCorrespondence.PDF HFSH 3/31/2009 10:15:00 AM
HFSH 1/28/2010 10:15:00 AM
HB 46
HB46--List of Past Supporters.PDF HFSH 3/31/2009 10:15:00 AM
HFSH 1/28/2010 10:15:00 AM
HB 46