Legislature(2009 - 2010)BARNES 124

03/09/2010 10:15 AM House FISHERIES

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Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
               HB  46-MIXING ZONES/SEWAGE SYSTEMS                                                                           
10:21:38 AM                                                                                                                   
CHAIR EDGMON announced that the  first 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."   He  then noted  that public                                                               
testimony on HB 46 was closed.                                                                                                  
10:23:06 AM                                                                                                                   
REPRESENTATIVE  PAUL SEATON,  Alaska State  Legislature, informed                                                               
the  committee  that  the  bill asks  three  questions:    Should                                                               
citizens  have  the right  to  know  Department of  Environmental                                                               
Conservation  (DEC) information  on freshwater  pollution without                                                               
having  to file  a Freedom  of Information  Act request?   Should                                                               
pollution  above  the state  toxic  standards  be allowed  to  be                                                               
discharged on freshwater  spawning beds as mixing  zones?  Should                                                               
neighbors have  the right to  a public hearing if  a commercially                                                               
operated sewage  lagoon is going  to be expanded over  50 percent                                                               
in  their neighborhood?   Representative  Seaton stated  that the                                                               
biggest  of  these  questions  is  regarding  mixing  zones,  and                                                               
explained  that mixing  zones are  areas where  the state  allows                                                               
toxic pollutants to be discharged.   He pointed out that the bill                                                               
restricts this discharge  in a spawning area; in fact,  this is a                                                               
return to  the law previous  to 2002, when mines  "were permitted                                                               
under those  situations."  For  example, the Donlin  Creek [mine]                                                               
was  required to  move  its  mixing zone  upstream,  away from  a                                                               
spawning area.  He noted that HB  46 will ensure that there is an                                                               
exemption  for   problems  with  turbidity  from   placer  mining                                                               
operations, and  the bill does  not affect other permits  for in-                                                               
stream crossings.                                                                                                               
10:25:15 AM                                                                                                                   
REPRESENTATIVE   KELLER  recalled   that  amendments   have  been                                                               
discussed at previous hearings.  He moved to adopt Amendment 1.                                                                 
CHAIR EDGMON objected for the purpose of discussion.                                                                            
10:25:33 AM                                                                                                                   
REPRESENTATIVE  SEATON  explained  Amendment  1,  which  read  as                                                               
     Page 3, line 24, following "for a":                                                                                        
            Insert "commercially operated"                                                                                      
REPRESENTATIVE  SEATON said  that  the  amendment eliminates  the                                                               
question  of  whether a  sewage  lagoon  is  a disposal  site  on                                                               
private property.                                                                                                               
10:26:03 AM                                                                                                                   
CHAIR  EDGMON   removed  his  objection.     Hearing  no  further                                                               
objection, Amendment 1 was adopted.                                                                                             
10:26:12 AM                                                                                                                   
REPRESENTATIVE KELLER moved to adopt Amendment 2.                                                                               
CHAIR EDGMON objected for the purpose of discussion.                                                                            
10:26:25 AM                                                                                                                   
REPRESENTATIVE SEATON explained Amendment 2, which read as                                                                      
     Page 3, following line 21                                                                                                  
     (4) "useful life" means the anticipated time in which                                                                      
         a facility can continue to be operated without                                                                         
     replacement or major renovation.                                                                                           
REPRESENTATIVE SEATON said that the amendment adds clarity                                                                      
to the intent of the statute.                                                                                                   
10:26:44 AM                                                                                                                   
CHAIR EDGMON removed his objection.  Hearing no further                                                                         
objection, Amendment 2 was adopted.                                                                                             
10:26:49 AM                                                                                                                   
REPRESENTATIVE KELLER moved to adopt Amendment 3.                                                                               
CHAIR EDGMON objected for the purpose of discussion.                                                                            
10:26:59 AM                                                                                                                   
REPRESENTATIVE SEATON explained Amendment 3 which read as                                                                       
     Page 3, line 5                                                                                                             
     After "authorization" delete "."                                                                                           
     ", 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."                                                                                                         
REPRESENTATIVE  SEATON said  the amendment  provides clarity  for                                                               
rural  villages that  have sewage  outfalls which  have not  been                                                               
officially permitted.                                                                                                           
10:27:47 AM                                                                                                                   
CHAIR  EDGMON   removed  his  objection.     Hearing  no  further                                                               
objection, Amendment 3 was adopted.                                                                                             
10:28:01 AM                                                                                                                   
CHAIR EDGMON called for discussion on HB 46, as amended.                                                                        
10:28:20 AM                                                                                                                   
REPRESENTATIVE MILLETT  maintained her  concern about  the effect                                                               
of  changing  mixing  zone  requirements  on  small,  undeveloped                                                               
communities.    In  addition,  the   fiscal  note  indicates  the                                                               
addition of staff,  and she opined that DEC is  "doing a good job                                                               
with the statutes  as they stand on mixing zones."   She said she                                                               
will not be able to support the bill in its present form.                                                                       
10:30:01 AM                                                                                                                   
REPRESENTATIVE SEATON  responded that the remaining  question was                                                               
whether  the  committee believes  it  is  good public  policy  to                                                               
discharge toxics  above the state  standards for aquatic  life on                                                               
freshwater spawning areas.   He clarified the  spawning areas are                                                               
nesting areas  for the  named species, such  as salmon,  when the                                                               
salmon are  not actively  laying eggs.   Furthermore,  there have                                                               
been  no  mine  permits  denied because  of  this  accommodation.                                                               
Representative Seaton  opined not protecting spawning  grounds is                                                               
"trading  away   our  renewable   resources  and   our  fisheries                                                               
resources on  which all our  communities depend."  The  bill does                                                               
not prevent  mixing zones in  rivers, but makes  modifications so                                                               
that a mixing zone does not occur in a spawning area.                                                                           
10:31:38 AM                                                                                                                   
REPRESENTATIVE MILLETT expressed her  belief that the legislation                                                               
elevates one  resource over another  for development.   She said,                                                               
"In my walk  around the state, have seen that  [miners] are doing                                                               
the  upmost to  protect all  resources equally."   She  concluded                                                               
that the  bill may  not allow  permitting for  some mines  and is                                                               
10:32:50 AM                                                                                                                   
CHAIR  EDGMON pointed  out that  HB 46  has safeguards  to exempt                                                               
municipalities and placer mines,  and asked Representative Seaton                                                               
to speak about the exemptions.                                                                                                  
10:33:54 AM                                                                                                                   
REPRESENTATIVE SEATON  provided the  example of the  Donlin Creek                                                               
mine, which  applied for  a permit  prior to  the change  in law.                                                               
The mine  was required to  move its mixing  zone 1,400 feet  to a                                                               
"boulder patch  area" that  was not  in a  spawning area.   After                                                               
this  change, the  mine received  its permit.   Furthermore,  the                                                               
bill  exempts  artificial settling  ponds  or  channels that  are                                                               
later "invaded  by one of the  fish species," so they  may not be                                                               
reclassified  as   spawning  areas.     In  addition,   the  bill                                                               
accommodates turbidity caused  by placer mines.   He restated the                                                               
intent of the bill is to  prevent pollution, above the level that                                                               
the state  sets as safe  for aquatic life, from  being discharged                                                               
in spawning areas.                                                                                                              
10:36:54 AM                                                                                                                   
REPRESENTATIVE  KELLER  recalled  testimony from  DEC  indicating                                                               
that regulations already prohibit  mixing zones in spawning areas                                                               
"with the time  element."  He stated that  the above information,                                                               
along  with  the  "unknowns" surrounding  the  bill's  impact  on                                                               
municipalities, prevent him from supporting the bill.                                                                           
10:37:53 AM                                                                                                                   
REPRESENTATIVE   SEATON   advised    that   comments   from   the                                                               
municipalities  and  villages  have  indicated that  one  of  the                                                               
amendments  adopted  "took care  of  that  problem that  DEC  had                                                               
identified,  that  there  were   some  things  that  they  hadn't                                                               
permitted."   Therefore, unpermitted  discharges that  are normal                                                               
in some parts of rural Alaska  are taken care of.  However, after                                                               
the useful life of facilities  is past, the replacement should be                                                               
"at a level of what we want to see for Alaska."                                                                                 
10:38:54 AM                                                                                                                   
REPRESENTATIVE  MUNOZ  observed  HB  46 also  affects  lakes  and                                                               
resident fish, such  as Arctic char and other species.   The bill                                                               
is very  broad, and  she cited the  difficulty of  permitting the                                                               
tailings disposal  plan for  the Kensington  Mine in  Juneau that                                                               
occurred  over  the discovery  of  an  introduced trout  species.                                                               
Although the Kensington  Mine did not require a  mixing zone, she                                                               
maintained   her  concern   about  adding   uncertainty  to   the                                                               
permitting  process.   She  asked for  a  response regarding  the                                                               
aforementioned issue and on the  influence of the Clean Water Act                                                               
(CWA) on this legislation.                                                                                                      
10:40:14 AM                                                                                                                   
REPRESENTATIVE SEATON concurred that  the Kensington Mine did not                                                               
require a  mixing zone.   Although freshwater  fish in  lakes are                                                               
included in the  language of the bill, he pointed  out that HB 46                                                               
does not  cover broadcast spawners,  but only species  that spawn                                                               
in  redds, or  nests.    He acknowledged  that  the CWA  requires                                                               
public  process  for  its   tri-annual  review;  however,  public                                                               
process  for adopting  standards is  set "as  appropriate" by  33                                                               
United States  Code (USC) 1313(c)(1).   He assured  the committee                                                               
that  the idea  that the  state can,  or cannot,  disallow mixing                                                               
zones is not the issue as  proven by the statute that was enacted                                                               
affecting the  cruise line  industry.  The  bill does  not change                                                               
the toxic standards,  but merely disallows the  ability to exceed                                                               
the established standards on spawning grounds.                                                                                  
10:43:27 AM                                                                                                                   
REPRESENTATIVE  MUNOZ  opined  legislation affecting  the  cruise                                                               
ship industry  has proven to  be a very onerous  and unscientific                                                               
method of regulating  water quality.  She  maintained her concern                                                               
that  legislating water  quality without  the regulation  process                                                               
leads to unintended consequences.                                                                                               
REPRESENTATIVE SEATON  reminded the  committee that in  2002, the                                                               
Murkowski administration  eliminated the standard  that prevented                                                               
mixing zones  from being  part of spawning  areas, and  this bill                                                               
reinstates the previous standard.                                                                                               
10:44:53 AM                                                                                                                   
REPRESENTATIVE JOHNSON  asked whether salmon always  spawn in the                                                               
same area.                                                                                                                      
REPRESENTATIVE   SEATON  responded   that   spawning  areas   are                                                               
identified by  the Alaska Department  of Fish & Game  (ADF&G) and                                                               
are not extremely variable.  The  fish tend to return to the same                                                               
area that has gravel and upwelling waters.                                                                                      
10:45:46 AM                                                                                                                   
REPRESENTATIVE  JOHNSON further  asked whether  water temperature                                                               
is a factor.                                                                                                                    
REPRESENTATIVE  SEATON  answered  that water  temperature  varies                                                               
year to  year, and with  salmon, ADF&G has surveys  that indicate                                                               
the  established spawning  areas.   Some  species,  such as  pink                                                               
salmon, are more mobile and may invade a new area.                                                                              
10:47:05 AM                                                                                                                   
REPRESENTATIVE  JOHNSON observed  that ADF&G  may determine  that                                                               
there has  not been an invasion  because the fish have  been in a                                                               
certain area years  before.  He said,  " ... to get  to the point                                                               
of  my questioning,  are we  talking about  eliminating a  mixing                                                               
zone,  anywhere on  a  river that's  a  potential spawning  zone,                                                               
based  upon the  invasion ...?   Are  we basically  excluding any                                                               
place  that  could ever  potentially  be  a  spawning zone  in  a                                                               
REPRESENTATIVE  SEATON said  no.   An  application for  discharge                                                               
will  require  findings  to  determine  whether  the  area  is  a                                                               
spawning area  and the permit will  be granted, or not,  based on                                                               
that finding.                                                                                                                   
10:48:21 AM                                                                                                                   
REPRESENTATIVE JOHNSON expressed his  belief that the legislation                                                               
leaves open  to interpretation "is it  a spawning zone, was  it a                                                               
spawning zone, is  it going to be a spawning  zone?"  His primary                                                               
concern is that  this bill eliminates basically  any habitat that                                                               
could potentially be a spawning zone.                                                                                           
10:49:03 AM                                                                                                                   
REPRESENTATIVE   SEATON  explained   that   when   a  permit   is                                                               
considered,  ADF&G  determines whether  the  area  is a  spawning                                                               
10:49:31 AM                                                                                                                   
LYNN   KENT,  Director,   Division   of   Water,  Department   of                                                               
Environmental Conservation (DEC), clarified  that the cruise ship                                                               
law did  not affect  the water  quality standards,  but addressed                                                               
effluent levels.   However, HB 46 does make changes  to the water                                                               
quality  standard, because  the  Environmental Protection  Agency                                                               
(EPA) views  the mixing zone regulations  as a part of  the water                                                               
quality  standards.   She  then deferred  to  testimony from  the                                                               
Department of Law (DOL) on the EPA process.                                                                                     
10:50:37 AM                                                                                                                   
CAMERON  LEONARD,  Senior  Assistant  Attorney  General,  Natural                                                               
Resources Section, Civil Division  (Fairbanks), Department of Law                                                               
(DOL), advised the committee the  bill would require EPA approval                                                               
through a process  governed by federal regulations.   He directed                                                               
attention  to   his  written  response   to  "Mixing   Zone  Bill                                                               
Questions,  Our   File  No.  665-09-0019,"  dated   2/11/10,  and                                                               
provided in the committee packet.                                                                                               
10:51:13 AM                                                                                                                   
REPRESENTATIVE  SEATON  referred  to   the  letter  response  and                                                               
pointed  out that  Section 303(c)(2)(B),  which is  cited in  the                                                               
letter, is  specific to  toxic pollutants and  does not  apply to                                                               
the mixing  zone requirements.  Furthermore,  Sections (c)(3) and                                                               
(4) pertain  to EPA's  approval and  disapproval process;   thus,                                                               
although  it would  be  good  to put  these  things in  findings,                                                               
pollutants,  mixings zones,  and  the EPA  process are  different                                                               
10:52:03 AM                                                                                                                   
MR. LEONARD disagreed, and said  that anytime DEC promulgates any                                                               
water  quality  standard it  does  go  through the  same  federal                                                               
approval process.   The  applicable requirements  of the  CWA are                                                               
Sections 303(c)(1) and (c)(2)(A), and  are not limited to toxins,                                                               
but apply to any water quality standard.                                                                                        
REPRESENTATIVE SEATON opined the  new existing standards have not                                                               
been approved  by EPA;  however, the standards  in the  bill have                                                               
been approved.                                                                                                                  
10:53:08 AM                                                                                                                   
REPRESENTATIVE MUNOZ  observed Mr. Leonard's letter  indicates an                                                               
analysis occurs  before a change is  made.  She read  from page 3                                                               
[original punctuation provided]:                                                                                                
     Federal regulations  require that  a state  seeking EPA                                                                    
     approval  of a  proposed  revision to  a water  quality                                                                    
     standard  submit the  following information:   analyses                                                                    
     conducted to  support the  standard; an  explanation of                                                                    
     the   scientific   basis    for   the   standard;   and                                                                    
     certification by  the Attorney  General or  other legal                                                                    
     authority this  it was duly  adopted.  ...  the sponsor                                                                    
     of a  bill proposing a  change to an  existing standard                                                                    
     should  make  the  first two  items  available  to  the                                                                    
     committees  considering the  bill, and  to the  public,                                                                    
     before the bill is enacted.                                                                                                
10:54:07 AM                                                                                                                   
MR.  LEONARD further  explained  that these  requirements can  be                                                               
found in federal regulation 40  Code of Federal Regulations (CFR)                                                               
Section 131.6.   The regulation lists what the  state is required                                                               
to submit to  EPA in support of a water  quality standard project                                                               
and  there is  a  separate regulation  for  governance of  public                                                               
hearings.    Mr. Leonard  advised  these  requirements "would  be                                                               
triggered by  this bill,  just as they  are triggered  every time                                                               
DEC promulgates water quality standards as regulations."                                                                        
10:54:57 AM                                                                                                                   
REPRESENTATIVE   SEATON  reiterated   that   the  water   quality                                                               
standards are in  place and the new ones are  those being applied                                                               
for;  furthermore, the  prohibition  on the  pollution of  mixing                                                               
zones  in  spawning  streams  has  been in  place  before.    The                                                               
authority [for this] has been previously adopted in state law.                                                                  
10:55:38 AM                                                                                                                   
CHAIR  EDGMON noted  he represents  a fishing  district that  has                                                               
concerns  about  a  nonrenewable   resource  encroaching  on  its                                                               
valuable  fishery, and  stated  his  support for  the  bill.   He                                                               
opined  the  bill  warrants  passage   to  another  committee  to                                                               
continue the discussion during this legislative session.                                                                        
10:57:01 AM                                                                                                                   
REPRESENTATIVE BUCH moved  to report HB 46 out  of committee with                                                               
individual recommendations and the accompanying fiscal notes.                                                                   
10:57:13 AM                                                                                                                   
REPRESENTATIVE  JOHNSON objected.    He said  that the  committee                                                               
should not move a bill in  order for more discussion, but only if                                                               
the  committee feels  it is  good policy  and should  become law.                                                               
During  a 90-day  session, committees  must  start making  policy                                                               
decisions,  instead  of  the  tendency to  "move  every  bill  to                                                               
finance,  or   every  bill  to   judiciary,  or  every   bill  to                                                               
10:58:39 AM                                                                                                                   
REPRESENTATIVE  MILLETT said  she  would not  vote  for the  bill                                                               
because she did not think there  is a current deficiency in water                                                               
regulations;  in  fact,  the  legislation  is  far-reaching  with                                                               
unknown implications to EPA and  water quality standards.  Alaska                                                               
already has a burden of  federal policies on resource extraction;                                                               
furthermore, DEC has "done a great job."                                                                                        
10:59:55 AM                                                                                                                   
REPRESENTATIVE   JOHNSON  suggested   the  committee   table  the                                                               
legislation because of the need for further information.                                                                        
11:00:17 AM                                                                                                                   
REPRESENTATIVE BUCH  objected and  maintained his motion  to move                                                               
the bill.                                                                                                                       
11:00:30 AM                                                                                                                   
The committee took an at-ease from 11:00 a.m. to 11:02 a.m.                                                                     
11:02:59 AM                                                                                                                   
REPRESENTATIVE JOHNSON made a motion to table the bill.                                                                         
11:03:25 AM                                                                                                                   
REPRESENTATIVE BUCH objected.                                                                                                   
11:03:46 AM                                                                                                                   
CHAIR EDGMON offered the floor to Representative Buch.                                                                          
11:03:56 AM                                                                                                                   
REPRESENTATIVE BUCH said that HB 46 is restorative legislation.                                                                 
11:04:36 AM                                                                                                                   
A  roll call  vote was  taken.   Representatives Johnson,  Munoz,                                                               
Keller,  and   Millett  voted   in  favor   of  tabling   HB  46.                                                               
Representatives  Edgmon, Kawasaki,  and  Buch  voted against  it.                                                               
Therefore, HB  46 was  tabled in the  House Special  Committee on                                                               
Fisheries by a vote of 4-3.                                                                                                     

Document Name Date/Time Subjects
HCR 15 Sponsor Statement.pdf HFSH 3/9/2010 10:15:00 AM
HCR 15
HCR 15--AK Miners Assc Ltr 2.15.2010.PDF HFSH 3/9/2010 10:15:00 AM
HCR 15
HB 365--Sponsor Statement.PDF HFSH 3/9/2010 10:15:00 AM
HB 365
HB 365--UFA Ltr..PDF HFSH 3/9/2010 10:15:00 AM
HB 365
HB 365--SE AK Seiners Assoc Ltr..PDF HFSH 3/9/2010 10:15:00 AM
HB 365
HB365--CFEC Info on SE Seiners.PDF HFSH 3/9/2010 10:15:00 AM
HB 365
HB 365--AS 16.40.250.PDF HFSH 3/9/2010 10:15:00 AM
HB 365
HB 365--Capacity Reduction Summary-SE Revitalization Assn.PDF HFSH 3/9/2010 10:15:00 AM
HB 365
HB 365--Sec. 121 US Public Law 109-479 2007.PDF HFSH 3/9/2010 10:15:00 AM
HB 365
HB 46--Munoz, Johnson, et al to AG.PDF HFSH 3/9/2010 10:15:00 AM
HB 46
HB 46--AG to Munoz, Johnson, et al.PDF HFSH 3/9/2010 10:15:00 AM
HB 46
HB365-DFG-CFEC-03-05-10 Fiscal Note.pdf HFSH 3/9/2010 10:15:00 AM
HB 365
HB 365--SE Fishermen's Alliance Ltr.pdf HFSH 3/9/2010 10:15:00 AM
HB 365
HB 365--CFEC Ltr..PDF HFSH 3/9/2010 10:15:00 AM
HB 365
HB 365--Sectional Analysis.PDF HFSH 3/9/2010 10:15:00 AM
HB 365
HCR15-LEG-COU-3-8-2010 Fiscal Note.pdf HFSH 3/9/2010 10:15:00 AM
HCR 15
HCR 15--United Fishermen of Alaska Letter.PDF HFSH 3/9/2010 10:15:00 AM
HCR 15
HCR 15--BBEDC Letter of Support.pdf HFSH 3/9/2010 10:15:00 AM
HCR 15
HCR 15--Trident Seafoods Ltr..pdf HFSH 3/9/2010 10:15:00 AM
HCR 15
HCR 15--BBNC Ltr.pdf HFSH 3/9/2010 10:15:00 AM
HCR 15
HB365-REV-TAX-03-08-10 Fiscal Note.pdf HFSH 3/9/2010 10:15:00 AM
HB 365
HCR 15--Peter Pan Ltr.pdf HFSH 3/9/2010 10:15:00 AM
HCR 15
HCR 15--BBNA Ltr.PDF HFSH 3/9/2010 10:15:00 AM
HCR 15