Legislature(2003 - 2004)
03/03/2004 01:50 PM RES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 524-WASTE MANAGEMENT/DISPOSAL Number 2802 CO-CHAIR DAHLSTROM announced that the next order of business would be HOUSE BILL NO. 524, "An Act relating to the protection of land and water from waste disposal; providing for the regulation of waste management; making conforming amendments; and providing for an effective date." ERNESTA BALLARD, Commissioner, Department of Environmental Conservation (DEC), testified. She said the governor has a very ambitious program for environmental protection and resource development. She remarked, "They compliment each other and the governor expects excellence in both." Commissioner Ballard said this bill is an essential piece of [DEC's] ability to support any resource development program and to assure that the environment is protected at the time that the resources are developed. She said she is proud to report to the committee in support of the governor's overall program that each of the budgets that have been presented to the legislature by Governor Murkowski has increased DEC's core capabilities with additions to its permit staff. Number 2888 COMMISSIONER BALLARD said DEC's environmental protection role is defined by legislation passed over many legislative sessions over the last 30 years that assigns clear responsibility to DEC control water, land, and air pollution in Alaska and to also fulfill the state's obligations under the Clean Water Act, the Clean Air Act, and other federal legislation, which establish a two-tiered approach to protecting the nation's environment. The first tier is national air and water quality standards. The second tier is state implementation that is responsive to the unique needs of each state. She stated that she is a relentless advocate of a strong state budget and a strong state program for environmental protection and the comprehensive regulatory program necessary to carry that out. She said the Clean Water Act is ultimately the subject of HB 524 and is designed to provide states with the latitude to shape water pollution control programs to fit their own unique circumstances. The Alaska Legislature, following the opportunity presented by the Clean Water Act, has charted a course in state law that governs water, as well as air, energy, and environmental conservation. COMMISSIONER BALLARD said HB 524 expands the responsibilities already designated by the legislature for DEC. It expands DEC's ability to control pollution and it refocuses DEC's approach to the complex issues of solid and mine wastes. She said HB 524 provides important "tools" DEC will use to authorize its waste disposal activities. She said "the tools are arrayed by risk" and there are "different tools for different risks." She said this bill grew from [DEC's] comprehensive review of its programs that followed Administrative Order 202, the first administrative order passed by Governor Murkowski when he first took office in December 2002. She said Administrative Order 202 directed all departments of state government to do a comprehensive review of their statutory authorities and their programs to assure that they are using state resources efficiently and effectively. Commissioner Ballard said HB 524 is part of DEC's overall effort to clarify, streamline, and adhere to federal and state statutes. TAPE 04-11, SIDE B COMMISSIONER BALLARD it is DEC's goal with its environmental protection program to assure that all program components from legislative budgeting and oversight to fieldwork and enforcement are conducted in the state, with Alaskan solutions, and specifically addressing Alaskan challenges. She said HB 524 is an essential piece of bringing Alaskan program home to Alaska to assure that the priorities negotiated between the governor and the legislature, at the time the budgets are approved, are translated into "on the ground" programs to protect the state's resources. Number 2950 COMMISSIONER BALLARD said [HB 524] clarifies [DEC's] "statutory foundation," and she called attention to handout in the packet provided by DEC. She said the handout begins by asserting that this is a key piece of [DEC's] statutory foundation. The bill has a zero fiscal note because it is clarification of the department's authorities and does not add any additional staff or expenses. She said [the bill] is part of a rational water protection program that the state has not enjoyed over the 30 years as it has developed its environmental protection program. Commissioner Ballard said DEC calls that program "raindrops to oceans" and the term is used because water begins as condensate in the air and ultimately falls to the earth as rain; it cycles through surface water, ground water, and ultimately goes out to the sea. She remarked, "If we don't have a comprehensive and a rational approach to it, we're going to miss the boat." She said if it is protected in one area and not another area, "we" haven't done ourselves any good. COMMISSIONER BALLARD explained that the water is looked at as a continuum from raindrops to ocean, and this bill is a key component of filling in gaps that [DEC] feels it has now in its statutory foundation to protect the water. She said it is a bill that primarily gives [DEC] a set of risk-based authorizations, which can be used to address the riskiest impacts to water with the "sharpest tools." She said remarked, "We can still by rule and therefore, with public comment, with opportunity for all stakeholders to participate; by rule we can address even the most minimal risks." She said the bill has five components of authorization for waste disposal activities depending on risks, which are identified in the handout by the bullet points. This an extremely important change from the current authority DEC has. The current authority simply references a permit; it doesn't make clear that a permit may be a different type of authorization then an individual permit with the name of the discharger on it, and developing an individual relationship with DEC. COMMISSIONER BALLARD said the tool DEC would use for the riskiest impacts to water would be an individual permit in which DEC would negotiate specific discharge requirements for an individual discharger. The next tool in reduction of risk would be a general permit in which DEC would authorize one permit for a number of similar activities in a geographic area. Each individual discharger would still need to contact DEC, and DEC would still have an individual relationship with them, but would not negotiate independent or promulgate independent permit terms for them. Number 2812 COMMISSIONER BALLARD called attention the third bullet, and she said this tool is one that DEC is very eager to have. It's called "permit by rule" or sometimes "regulatory rule" or "permission by regulation," she said. She said the best example she can give for people who are unfamiliar with environmental regulations is a building permit. In some communities, if a person is doing simple remodeling at a cost of less than $5,000, that individual does not need an individual permit. She said if the remodeling does not include moving a bearing wall or putting in plumbing, the home owner would simply conform to "best practices," which are usually listed in a sheet that the city can provide. She said this is a permit by rule, and the rule is that person complies with the conditions that are on the sheet of paper, but does not need an individual permit or a building inspector. She said the difference between a permit by rule and nothing is, first, [DEC] goes through rule making and promulgates the terms and conditions under which, for instance, bilges could be pumped. She offered some examples. COMMISSIONER BALLARD said if [DEC] goes through rule making to identify the best practices for a low risk activity, then it has the opportunity for stakeholder comment, and equally important, DEC would have the opportunity to enforce. She said if there is a blatant violation and somebody observes somebody else doing wrong and points it out to DEC, and if DEC had done nothing and had no regulatory relationship with the general public, it is helpless. He said if DEC has a permit by rule, it is a low impact risk and a very low impact regulatory activity, but it provides the protection [DEC] believes the environment deserves and needs. She turned attention to "plan approvals," and she said [DEC] has many places, in both statute and regulation in state law and state code, in which plans are submitted to various agencies for review. Commissioner Ballard said this bill gives [DEC] specific authority to not just review, but approve a plan when it's necessary, and that approval step provides the control [DEC] thinks it needs to achieve environmental protection. COMMISSIONER BALLARD said something extremely important to large mines is the opportunity for DEC to issue a consolidated waste management permit for complex facilities which now require more than one permit. She said this is permit streamlining, and this administration had talked a lot about it and this is an example of it. She said HB 524 also allows an administrative extension of DEC permits, and she remarked, "We are good, but we're not perfect." She said DEC sometimes doesn't have the staff or the resources to renew a permit at the time the permit has expired. COMMISSIONER BALLARD said it is extremely important for DEC to have the permits administratively extended so the regulated community, municipalities, and industrial permit holders are not out of compliance because [DEC] does not have the resources to get to the permits. She said the next issue is extremely important to stakeholders and developers because it allows [DEC] to require proof of financial responsibility under certain waste circumstances. She said DEC uses proof of financial responsibilities in several places in DEC regulation, and it is the tool by which DEC assures that financial resources are set aside and dedicated to long-term clean up or maintenance of a long-term treatment system for a solid waste facility or a mine waste facility. This assures citizens in the future that when an undertaking is over and there is a residual waste system or pile in place, that financial resources are available to assure that it is maintained. COMMISSIONER BALLARD said the last major component of HB 524 is modification to the definitions of solid waste and municipal solid waste. It is important for DEC to be able to distinguish between municipal wastes and industrial wastes. She said DEC has different provisions in law and in regulation and it ultimately needs the ability to allow the small municipal waste facilities that are operated in Alaska's many small villages and communities to operate under a much less rigorous regulatory regime than more large and complex facilities. She said this changes to the definition makes DEC's authority to do that clear. Number 2579 CO-CHAIR DAHLSTROM asked that testimony be limited to three minutes each. Number 2542 MARILYN CROCKETT, Deputy Director, Alaska Oil and Gas Association (AOGA), testified, and stated she is in support of HB 524. She said the bill is a very important and necessary streamlining mechanism that the department has proposed. The ability to use the additional regulatory tools is very important, not only to the applicants but to the department, which has to operate with limited resources, she said. She said the other component of the bill that AOGA is very interested in and is strongly supporting is the ability of the department to administratively present permits when they expire. That does allow DEC to focus and prioritize on the authorizations and the permits that have the higher risk, and it allows DEC to prioritize those activities. She said it provides protection to the regulated community, as well, in the event that a permit or an authorization that is currently held is about to expire and there is not time to get it renewed. She said this is a procedure that is routinely used by the federal government through the Environmental Protection Agency (EPA), and AOGA commends the department for including it in this provision. Number 2463 STEVE BORELL, Executive Director, Alaska Miners Association (AMA), testified. He said AMA supports this bill, which would make important changes, specifically, the administrative extension of permits, which [AMA] believes is crucial and will help both industry and DEC in that situation. He said the use of permit by rule was well described, and he suggested it is much simpler for all [parties] involved to have a set of rules "and if a person follows those rules, they are indeed in compliance with the law and they don't need to actually go and apply for a permit, wait for the processing, worry about not getting the permit on time, and then ... they need to review the permit." He said he believes these are all important changes to the law, and AMA supports them. Number 2386 MYRL THOMPSON, Ogan Is So Gone, testified. He directed attention to Section 3, subparagraph (C), and asked if this is an exemption for coal bed methane drilling. COMMISSIONER BALLARD said this language is in existing statute and there is no change proposed. She said subparagraph (C) refers to "exploratory drilling the produced water," and the exemption was put in by the legislature a number of years ago. She stated that DEC is not proposing any change. MR. THOMPSON asked how that exemption would affect drilling in the Matanuska Valley with respect to [HB 524]. COMMISSIONER BALLARD said there would be no change to the current regulatory regime since there is no change proposed to statute. MR. THOMPSON said he didn't have any problem with the bill per se, but he does have a problem with that particular exemption due to the ongoing process in the Matanuska Valley. Number 2263 REPRESENTATIVE HEINZE asked how the proof of financial responsibility integrate with reclamation and reclamation bonding or funds. COMMISSIONER BALLARD mentioned that the Department of Natural Resources had recently presented the committee with some statutory language. She noted that it was pointed out in the handout that DEC will coordinate with a "financial assurance vehicle," which is provided through DNR requirements. She said both requirements are important and "their" reclamation bonding is extremely important for the physical acts of reclamation. COMMISSIONER BALLARD said DEC's proof of financial assurance is important for the environmental protection that it seeks for future potential waste management issues. She said if a mining developer offers a financial instrument which has adequate asset depth to cover both requirements, [DEC and DNR] will both accept the same instrument but can't put up the same assets to pledge for two different responsibilities. Number 2191 REPRESENTATIVE GUTTENBERG turned attention to page 2, [paragraph 2], and he asked if that section would have been dealt with if Fairbanks had made a different determination on its last election. COMMISSIONER BALLARD said that language will not have any impact on the I/M program in Fairbanks. REPRESENTATIVE GUTTENBERG turned attention to page 5, Section 4, and he said it looks like the bill is changing who does the forms from the EPA to the state. He asked if it was assumed that could be done with no cost. COMMISSIONER BALLARD answered in the affirmative. Number 2140 REPRESENTATIVE HEINZE moved to report HB 524 out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, HB 524 was reported from the House Resources Standing Committee. CO-CHAIR DAHLSTROM turned the gavel over to Co-Chair Masek.