Legislature(2009 - 2010)BARNES 124

01/28/2010 10:15 AM FISHERIES


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10:21:16 AM Start
10:21:38 AM HB46
11:15:51 AM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= HB 46 MIXING ZONES/SEWAGE SYSTEMS TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
               HB 46-MIXING ZONES/SEWAGE SYSTEMS                                                                            
                                                                                                                                
CHAIR EDGMON announced  that the only 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."                                                                                              
                                                                                                                                
10:23:58 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  SEATON, Alaska  State Legislature,  explained the                                                               
purpose of mixing zones.  He  said that that anyone can discharge                                                               
effluent,  as  long  as  it meets  the  water  quality  standards                                                               
established by  the state.   If the  discharge does not  meet the                                                               
standards,  they can  apply for  a  mixing zone  permit from  the                                                               
Department  of  Environmental  Conservation (DEC).    The  permit                                                               
allows an  area of  water to  be designated  for dilution  of the                                                               
discharge, creating  a mixing  zone.   It is at  the edge  of the                                                               
mixing zone that  the water quality standard must be  met.  There                                                               
are parameters regarding  size, but some zones are as  large as 1                                                               
1/2  miles long  to  allow  enough area  for  dissipation of  the                                                               
pollutants  to occur.   He  said that  formulating the  discharge                                                               
rate and  volume, and the  dilution rate, establishes  the mixing                                                               
zone area.  The current bill  has three components.  The first is                                                               
that it would  reflect the pre 2002  understanding for permitting                                                               
a mixing  zone in a spawning  area.  A progression  of regulation                                                               
changes has resulted in the  identification of a spawning area by                                                               
the  presence   of  fish  actively   spawning.    This   type  of                                                               
identification resulted  in the  permitting of  temporal permits,                                                               
and allows  mixing zones to occur  if fish are not  present.  The                                                               
bill re-establishes charted spawning areas  to be the gravel beds                                                               
where nests occur.  The  bill does not affect broadcast spawners,                                                               
but only nest building fish.   The second component is the public                                                               
disclosure aspect  of the bill,  which allows Alaskans  the right                                                               
to  know what  is being  discharged  into the  state's lakes  and                                                               
rivers.   He said  that discharge  monitoring and  data recording                                                               
requirements are  established under the  Environmental Protection                                                               
Act  (EPA).   The bill  upholds  the Freedom  of Information  Act                                                               
(FOIA) in  requiring accessible reports  to be posted on  the DEC                                                               
website.  Finally, the law  addresses waste water sewage lagoons.                                                               
The current  law does  not require public  notice, when  a sewage                                                               
lagoon  is expanded.   Specifically,  he reported  that a  lagoon                                                               
near Homer  increased discharge from  1,500 to 6,000  gallons per                                                               
day  (gpd).   The  zone  is  near  a  residential area,  and  the                                                               
residents were not  notified of the change, or  provided a public                                                               
process for comment.  The bill  stipulates that an expansion of a                                                               
sewage  lagoon, to  over 50  percent  of the  original size,  DEC                                                               
would  require  DEC  to  notify area  residents  and  provide  an                                                               
opportunity  for public  in a  similar  way as  occurred for  the                                                               
original permit.                                                                                                                
                                                                                                                                
10:29:22 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  SEATON directed  attention to  the amendments  in                                                               
the committee packet.  The first amendment:                                                                                     
                                                                                                                                
     Page 3, line 24, following "for a":                                                                                        
             Insert "commercially operated".                                                                                
                                                                                                                                
The intent is  to clarify that a sewage lagoon  is a commercially                                                               
operated  facility,  not   a  home  septic  system.     The  next                                                               
amendment:                                                                                                                      
                                                                                                                                
     Page 3, following line 21,                                                                                                 
             Insert "(4) "useful life" to mean the                                                                          
      anticipated time in which a facility can continue to                                                                  
     be operated without replacement or major renovation."                                                                  
                                                                                                                                
The  intent is  to provide  a  definition paragraph.   The  final                                                               
amendment reads:                                                                                                                
                                                                                                                                
     Page 3, line 5.  After "authorization" deletes "."                                                                         
             Insert ", 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."                                                                                       
                                                                                                                                
He explained  that all  three amendments are  in response  to DEC                                                               
concerns contained in the department's  letter dated February 13,                                                               
2007, [Re:  HB 74].                                                                                                             
                                                                                                                                
10:32:43 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  JOHNSON  asked  if   there  is  a  definition  of                                                               
commercially operated.                                                                                                          
                                                                                                                                
REPRESENTATIVE  SEATON  responded that  the  bill  pertains to  a                                                               
facility  that receives  waste from  outside  sources, charges  a                                                               
fee, and discharges the waste material.                                                                                         
                                                                                                                                
REPRESENTATIVE JOHNSON  pointed out that municipalities  may also                                                               
accept offsite waste.                                                                                                           
                                                                                                                                
10:34:04 AM                                                                                                                   
                                                                                                                                
The committee took an at-ease from 10:34 to 10:35.                                                                              
                                                                                                                                
10:35:38 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  MILLETT queried  whether  this  legislation is  a                                                               
reaction to a situation or pro-active protection.                                                                               
                                                                                                                                
REPRESENTATIVE   SEATON   said   that   it   re-establishes   the                                                               
legislation  that was  in effect  prior to  2002, which  provided                                                               
protection  for spawning  areas  but  was changed  in  2003.   He                                                               
pointed out that  nearly all of the current  mines were permitted                                                               
under the legislation prior to the  2003 changes.  The pro active                                                               
aspects  of the  bill includes  the disclosure  aspect, which  is                                                               
information  that is  gathered  routinely and  will  now be  made                                                               
available to the  public in line with disclosure laws.   The bill                                                               
does react to the situation at  a sewage facility, located in the                                                               
sponsor's  district, which  has  been allowed  to expand  without                                                               
public notice.   The odor and associated  concerns were apparent,                                                               
but  a public  hearing  was not  required,  and this  legislation                                                               
establishes a requirement for public process.                                                                                   
                                                                                                                                
10:38:34 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  MILLETT inquired  why  the  mixing zone  statutes                                                               
changed in 2003.                                                                                                                
                                                                                                                                
REPRESENTATIVE SEATON  explained that the 2002  election resulted                                                               
in legislation  that was focused on  streamlining, which affected                                                               
a number  of procedures.   The coastal zone  management districts                                                               
were no  longer allowed  to qualify or  designate habitat,  as an                                                               
example.   At the time there  was a concern for  the Donlin Creek                                                               
Mine  request  for  a  discharge  pipe permit  to  empty  into  a                                                               
spawning area.   Under  the existing  2002 requirements  the pipe                                                               
would have required  relocation upstream, and this  may have been                                                               
the  catalyst for  changes to  the mixing  zone regulations  that                                                               
occurred in 2003.                                                                                                               
                                                                                                                                
CHAIR EDGMON underscored  that the 2003 mixing  zone changes were                                                               
made in regulation not statute.                                                                                                 
                                                                                                                                
REPRESENTATIVE  SEATON said  that a  question has  arisen whether                                                               
DEC  should be  deferred to  regarding this  topic, but  there is                                                               
precedent  for this  action, given  the  statute established  for                                                               
cruise ship mixing zones.                                                                                                       
                                                                                                                                
10:41:46 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  MUNOZ  noted that  it  appears  these issues  are                                                               
covered by  the federal Clean  Water Act (CWA), and  supported by                                                               
DEC,  and  she  questioned  the  need  for  statutory  change  to                                                               
existing standards.                                                                                                             
                                                                                                                                
REPRESENTATIVE SEATON stressed  that this will not  set or change                                                               
established standards.  However, when  effluent does not meet the                                                               
standards, certain conditions must be  met in order to discharge.                                                               
Standards may not be exceeded in a spawning area, for instance.                                                                 
                                                                                                                                
REPRESENTATIVE MUNOZ asked whether an  entity would be allowed to                                                               
exceed the  standards under  the current  legislation, and  if so                                                               
how is it possible.                                                                                                             
                                                                                                                                
REPRESENTATIVE SEATON answered  that a permit is  issued to allow                                                               
discharge  of material  that exceeds  the standards;  essentially                                                               
using public water to meet  the standards through dilution to the                                                               
edge  of the  mixing  zone.   It  is the  reason  why DEC  issues                                                               
permits, which are not needed  if water quality standards are not                                                               
exceeded.  The  bill does not preclude  permitted discharge, save                                                               
for discharges that would impinge upon spawning areas.                                                                          
                                                                                                                                
REPRESENTATIVE MUNOZ  asked if there  are examples  of discharges                                                               
that are currently allowed in spawning areas.                                                                                   
                                                                                                                                
REPRESENTATIVE SEATON directed attention  to the committee packet                                                               
and the list  of mixing zones, and what will  be exempt from this                                                               
legislation.                                                                                                                    
                                                                                                                                
10:47:44 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE KELLER asked whether  this would prevent expansion                                                               
of some existing sewage facilities.                                                                                             
                                                                                                                                
10:48:32 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE SEATON pointed out  that the useful life exemption                                                               
covers  current   facilities,  and  allows  for   expansions  and                                                               
upgrades.                                                                                                                       
                                                                                                                                
10:49:04 AM                                                                                                                   
                                                                                                                                
LYNN  TOMICH KENT,  Director, Division  of  Water, Department  of                                                               
Environmental Conservation  (DEC), pointed out that  mixing zones                                                               
are part  of DEC water  quality standards, and are  allowed under                                                               
federal  law.    The  public  process  to  revise  water  quality                                                               
standards, including  mixing zone regulations, allows  for public                                                               
review and comment.  Once changes  are adopted by the state, they                                                               
are also subject to review and  approval by the EPA.  The changes                                                               
made to  DEC regulations  in 2006 are  still pending  approval by                                                               
EPA,  thus,   the  department  is   operating  under   the  "old"                                                               
regulations.    The old  regulations  included  a prohibition  on                                                               
mixing  zones   in  spawning  areas  for   all  anadromous  fish,                                                               
including  trout and  grayling.   A  recognition  was made,  when                                                               
these regulations were adopted, that  exceptions would need to be                                                               
made to  the prohibition, but  none were included.   The pending,                                                               
2006 regulations,  have retained the prohibition  of mixing zones                                                               
in  salmon   spawning  areas,  with   the  one  exception   of  a                                                               
grandfather clause  that recognizes  salmon invading  a permitted                                                               
area.  The  regulations pertain to domestic  and industrial waste                                                               
water facilities,  should salmon move into  a permitted discharge                                                               
area.   An important change, she  pointed out, is that  under the                                                               
new regulations, DEC could authorize  a mixing zone in a spawning                                                               
area if  the pollutants were found  to not have an  effect on the                                                               
fish.   Regarding the  public notice issue,  she stated  that any                                                               
permit request  to discharge into  surface water  requires public                                                               
notice and a  comment period, even if the  facility is unchanged.                                                               
Only small  facilities, discharging less than  2,500 gallons, are                                                               
excluded from this requirement, and  are usually discharging to a                                                               
subsurface location.                                                                                                            
                                                                                                                                
10:54:00 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE MUNOZ  referred to  Page 2,  and the  inclusion in                                                               
Sec. 2, subparagraph  (J), the species rainbow trout.   She asked                                                               
how this legislation would affect  permitting a mine, such as the                                                               
one  near Juneau,  which has  been permitted  to use  Lower Slate                                                               
Lake as a depository for tailings.                                                                                              
                                                                                                                                
10:54:46 AM                                                                                                                   
                                                                                                                                
MS. KENT indicated  that the permitting for Lower  Slate Lake was                                                               
provided under a  different section of the CWA,  allowing for the                                                               
disposal of  solid material.   She stated that she  would provide                                                               
further  information  regarding  the  terms  of  this  EPA  NPDES                                                               
(natural pollutant  discharge elimination  system) permit  to the                                                               
committee.                                                                                                                      
                                                                                                                                
10:55:55 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  SEATON  pointed out  that  it  is not  considered                                                               
discharge  into Lower  Slate  Lake, but  rather  fill, hence  the                                                               
different permit.                                                                                                               
                                                                                                                                
10:56:31 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  MUNOZ opined  that in  discharging the  tailings,                                                               
water is involved, and she requested further information.                                                                       
                                                                                                                                
10:57:08 AM                                                                                                                   
                                                                                                                                
CHAIR  EDGMON inquired  whether  the regulations  in place  today                                                               
define salmon mixing zones, both temporally and spatially.                                                                      
                                                                                                                                
10:57:29 AM                                                                                                                   
                                                                                                                                
MS. KENT responded that the  pending regulations recognize salmon                                                               
spawning areas  as specific locales,  as well as a  timing issue.                                                               
These regulations specify that a  mixing zone may neither have an                                                               
impact during spawning activity, nor on future spawning.                                                                        
                                                                                                                                
10:58:22 AM                                                                                                                   
                                                                                                                                
CHAIR  EDGMON concluded  that the  temporal and  spatial concerns                                                               
are addressed.  He then opened public testimony.                                                                                
                                                                                                                                
10:59:02 AM                                                                                                                   
                                                                                                                                
TOBY  SHIELDS, directed  attention  to Section  3,  line 25,  and                                                               
read:   "will result in an  increase in discharge volume  of more                                                               
than  50 percent  from the  volume originally  authorized..." and                                                               
stated  his  understanding  that  currently if  the  permit  were                                                               
modified by 10 percent it  would require public testimony.  Also,                                                               
would an increase in volume  require public testimony, if it were                                                               
part of the design.                                                                                                             
                                                                                                                                
11:00:28 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE SEATON explained  that municipal wastewater/sewage                                                               
plants  operate  under  different regulations  than  do  private,                                                               
commercially  operated  facilities.   The  50  percent  expansion                                                               
clause pertains  to the  private facilities  and does  not affect                                                               
municipal operations.                                                                                                           
                                                                                                                                
11:01:29 AM                                                                                                                   
                                                                                                                                
MS. KENT reminded  the committee that any permit,  even a renewal                                                               
of an existing permit, to  discharge to surface water, requires a                                                               
public review.                                                                                                                  
                                                                                                                                
REPRESENTATIVE SEATON  referred to the committee  packet, and the                                                               
letter,  dated  October  17,  2007,  from  Renee  Evans  of  DEC,                                                               
regarding the  Homer Honey Bear  Septage Disposal Facility.   The                                                               
letter indicates that the expansion  of the facility, to increase                                                               
discharge  from   1,500  to  6,000  gpd,   was  acknowledged  and                                                               
accomplished via  an internal administrative plan  review in lieu                                                               
of the permit process, negating the  need for a public review.  A                                                               
public process  was requested, but  denied, and  public objection                                                               
persists.    He  reported  that  the  local  residents  have  not                                                               
received any satisfaction.                                                                                                      
                                                                                                                                
11:03:28 AM                                                                                                                   
                                                                                                                                
MS. KENT  drew attention to her  letter of April 9,  2009, to the                                                               
committee chair,  clarifying the  situation.  In  this particular                                                               
case, the  septage lagoon  percolates to  the subsurface  with no                                                               
discharge to  surface water.   The original permit was  for 1,500                                                               
gpd.   A  recent inspection  revealed  that the  facility has  an                                                               
average discharge of  just over 1,600 gpd, which  is not directed                                                               
to surface  water.   Because the  facility is  discharging beyond                                                               
their  permit  limit, the  owners  are  undergoing a  design  and                                                               
engineering  review  for  approval  by DEC  to  ensure  that  the                                                               
facility can handle the increased volume.   She said, that to her                                                               
knowledge, the facility  has not sought an  increase to discharge                                                               
6,000   gpd.     It  is   departmental  policy   that  facilities                                                               
discharging less than  2,500 gpd to the  subsurface be authorized                                                               
to operate  via a plan  review in lieu  of a permit.   Regulation                                                               
does not require public notice for this type of authorization.                                                                  
                                                                                                                                
11:05:42 AM                                                                                                                   
                                                                                                                                
BOB  SHAVELSON,  Executive  Director,  Cook  Inletkeeper,  stated                                                               
support  for  HB  46  and  reported  that  Inletkeeper  has  been                                                               
involved in the mixing zone issue  since it surfaced in 2003.  He                                                               
opined that  the streamlining  effort resulted  in a  rollback of                                                               
coastal  management  protection,   creating  devastation  to  the                                                               
habitat at  that time, and  spawning the contentious  mixing zone                                                               
issue.    The  use  of  mixing zones  embraces  the  belief  that                                                               
dilution  is  the solution  to  pollution,  despite the  public's                                                               
concern  that  toxic substances  and  fish  habitat do  not  mix.                                                               
Correcting  MS  Kent's  previous  statement,  he  clarified  that                                                               
within the complicated CWA, the  term mixing zone does not exist.                                                               
Mixing zones  were crafted  through creative  rule making.   When                                                               
Congress passed the  CWA, in 1972, the intent  was for pollutants                                                               
to meet a standard at the end  of a discharge pipe.  Mixing zones                                                               
have  become  the exception  that  has  swallowed the  rule,  and                                                               
instead of  decreasing toxins in  our nation's waters,  they have                                                               
become a permit to pollute.   Returning to Representative Munoz's                                                               
question  of  why this  issue  should  not  be  left to  the  EPA                                                               
process, he  said, in  EPA Region  10, Alaska  is the  only state                                                               
that does not have their  salmon listed as an endangered species.                                                               
With the  support of stringent  state regulation and  law, Alaska                                                               
has avoided the  pitfalls of the other states.   Pro active state                                                               
protection  for  Alaska's fisheries  is  imperative.   Without  a                                                               
statutory  change, decisions  will be  left to  discretion, which                                                               
has a way  of creating problems.  He provided  an example in Cook                                                               
Inlet where the  Trading Bay oil and gas  separation facility has                                                               
an authorized   mixing zone that  stretches for more than  a mile                                                               
across.  The volume of toxins  that the company can discharge was                                                               
tripled  when this  permit was  issued, and  the CWA  is not  met                                                               
within the  mile zone.   He opined that  Alaska is not  immune to                                                               
negative  impacts on  its  fisheries.   The  world class  sockeye                                                               
salmon run to the Frazier  River, in British Columbia, Canada, is                                                               
a  case in  point.   Over  the past  20  years 37,000,000  salmon                                                               
returned to that  river.  In the past ten  years that fishery has                                                               
collapsed.    He   opined  that  this  is   due  to  governmental                                                               
mismanagement, and  short sited  development goals,  and stressed                                                               
that HB 46  is one step towards ensuring  continued future salmon                                                               
production throughout Alaska.                                                                                                   
                                                                                                                                
11:11:23 AM                                                                                                                   
                                                                                                                                
CHAIR EDGMON closed public testimony.                                                                                           
                                                                                                                                
11:11:30 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE SEATON responded to  a previous question referring                                                               
to a  DEC letter  of June  17, 2005,  contained in  the committee                                                               
packet,  from  Gretchen  Keiser.   Turning  to  the  fourth  page                                                               
headings  for "Outfall  001-Dishcarge  of mine  water to  Sherman                                                               
Creek,"  and "Outfall  002-Dishcarge of  tailings effluent  water                                                               
from  the Tailings  Storage  Facility (TSF)  to  East Fork  Slate                                                               
Creek,"  he  paraphrased from  the  fourth  page, which  read  as                                                               
follows [original punctuation provided]:                                                                                        
                                                                                                                                
     Effluent limitations  and monitoring frequency  for the                                                                    
     parameters  contained in  Table  1  of the  Preliminary                                                                    
     Final  Permit.    No mixing  zone  is  authorized.  ...                                                                    
     Effluent limitations  and monitoring frequency  for the                                                                    
     parameters  contained in  Table  3  of the  Preliminary                                                                    
     Final Permit.  No mixing zone is authorized.                                                                               
                                                                                                                                
REPRESENTATIVE  SEATON presumed  that apparently  no mixing  zone                                                               
was necessary for that mining operation to continue development.                                                                
                                                                                                                                
11:13:06 AM                                                                                                                   
                                                                                                                                
MS. KENT concurred,  and will provide further  information to the                                                               
committee regarding the Kensington Mine permit.                                                                                 
                                                                                                                                
11:13:45 AM                                                                                                                   
                                                                                                                                
CHAIR EDGMON requested the department's position on the bill.                                                                   
                                                                                                                                
11:14:16 AM                                                                                                                   
                                                                                                                                
MS.  KENT  stated  that  the  department has  not  taken  a  firm                                                               
position on the bill because "there  are a lot of provisions that                                                               
we think are unclear and duplicative of things that are already                                                                 
in place."                                                                                                                      
                                                                                                                                
11:14:31 AM                                                                                                                   
                                                                                                                                
CHAIR EDGMON stated that the bill would be held for further                                                                     
consideration.                                                                                                                  
                                                                                                                                

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
HB46--SponsorStatementandSectional.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
HB46--2007TestimonyDEC.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
HB46-DEC Fiscal Note Issued 2010.pdf HFSH 1/28/2010 10:15:00 AM
HB 46
HB46--DEC Answers to 2007 Seaton Office Honey Bear Questions.PDF HFSH 1/28/2010 10:15:00 AM
HB 46
HB 46--DEC Answer to Seaton Questions on Honey Bear 4.9.09.PDF HFSH 1/28/2010 10:15:00 AM
HB 46