Legislature(2017 - 2018)BUTROVICH 205

02/14/2018 03:30 PM RESOURCES

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= SB 158 OIL/HAZARDOUS SUB.:CLEANUP/REIMBURSEMENT TELECONFERENCED
Moved SB 158 Out of Committee
-- Testimony <Invitation Only> --
+= SB 173 LIABILITY: PESTICIDES & UTILITY POLES TELECONFERENCED
Heard & Held
-- Testimony <Invitation Only> --
+= SB 92 VESSELS: REGISTRATION/TITLES; DERELICTS TELECONFERENCED
Heard & Held
-- Public Testimony --
+ Bills Previously Heard/Scheduled TELECONFERENCED
          SB 173-LIABILITY: PESTICIDES & UTILITY POLES                                                                      
                                                                                                                                
3:36:13 PM                                                                                                                    
CHAIR  GIESSEL called  the meeting  back to  order and  announced                                                               
consideration  of  SB  173.  It would  limit  the  liability  for                                                               
utilities  using  a specific  pesticide  on  wood utility  poles.                                                               
Public  testimony  was opened  and  closed  on February  12.  The                                                               
sponsor asked for some clarifying  changes and that is the reason                                                               
for the proposed committee substitute.                                                                                          
                                                                                                                                
SENATOR COGHILL moved to adopt the work draft CSSB 173( ),                                                                      
version 30-LS1332\D, as the working document.                                                                                   
                                                                                                                                
CHAIR GIESSEL objected for discussion purposes and invited her                                                                  
staff to review the changes.                                                                                                    
                                                                                                                                
3:37:20 PM                                                                                                                    
AKIS GIALOPSOS, staff to Senator Giessel and the Senate                                                                         
Resources Committee, Alaska State Legislature, Juneau, Alaska,                                                                  
explained:                                                                                                                      
        CS for Senate Bill 173 CORRECTED Explanation of                                                                       
              Changes from Version A to Version D                                                                             
                                                                                                                                
     1. Page 1, Lines 1-2: Amends  the title to read "An Act                                                                    
     relating to the  liability of a person  for the release                                                                    
     of  certain pesticides  on a  wood utility  pole." [The                                                                    
     title in the previous version  read "An Act relating to                                                                    
     the liability of a person  or the state for the release                                                                    
     of certain  pesticides during application on  a utility                                                                    
     pole."]                                                                                                                    
                                                                                                                                
     2. Page  1, Line Six:  Amends Section. 1  (the proposed                                                                    
     newly  created  AS  09.65.243) by  removing  the  words                                                                    
     "neither the  state nor" [The Committee  Substitute, in                                                                    
     Change  4, add  the definition  of person  given in  AS                                                                    
     46.03.900.  Because the  state is  considered a  person                                                                    
     under  AS 46.03.900,  the references  to  the state  in                                                                    
     Section. 1 were redundant and removed.]                                                                                    
                                                                                                                                
     3.  Page  1,  Lines   10-11:  Amends  Section.  1  (the                                                                    
     proposed  newly  created  AS 09.65.243),  by  rewriting                                                                    
     paragraph (1) to read "the  release resulted during the                                                                    
     installation, use,  or removal  of a wood  utility pole                                                                    
     treated  with a  registered  pesticide;" [The  previous                                                                    
     paragraph  (1)  read  "the release  resulted  from  the                                                                    
     application  of the  pesticide on  a wood  utility pole                                                                    
     during  the  installation,  use,   or  removal  of  the                                                                    
     utility pole;]                                                                                                             
                                                                                                                                
     4.  Page  1,  Lines   14-15:  Amends  Section.  1  (the                                                                    
     proposed newly  created AS 09.65.243)  by adding  a new                                                                    
     subsection  (b)  to read:  "For  the  purposes of  this                                                                    
     section,  "person"   has  the   meaning  given   in  AS                                                                    
     46.03.900"                                                                                                                 
                                                                                                                                
3:39:52 PM                                                                                                                    
CHAIR  GIESSEL  removed  her objection  and  finding  no  further                                                               
objections,  announced that  CSSB 173(RES),  version 30-LS1332\D,                                                               
was  adopted and  that  she  would set  it  aside until  Friday's                                                               
hearing, which will allow time  for amendments to be submitted by                                                               
5 p.m. on Thursday.                                                                                                             
                                                                                                                                
3:40:55 PM                                                                                                                    
SENATOR WIELECHOWSKI  said he understood that  AS 46.03.822 deals                                                               
with  strict  liability, so  now  if  there  is  a release  of  a                                                               
pesticide the utility  would be strictly liable. He  asked if the                                                               
bill removes all liability including gross negligence.                                                                          
                                                                                                                                
EMILY   NAUMAN,  Attorney,   Legislative   Legal,  Alaska   State                                                               
Legislature, said  she didn't know  the answer to  his questions,                                                               
but would  be happy to do  research on how AS  46.03.822 has been                                                               
applied.                                                                                                                        
                                                                                                                                
3:42:59 PM                                                                                                                    
SENATOR  WIELECHOWSKI asked  the  sponsor  if he  was  open to  a                                                               
provision  saying  there  would  still  be  liability  for  gross                                                               
negligence or reckless conduct on behalf of an installer.                                                                       
                                                                                                                                
SENATOR MICCICHE answered that the  utility companies don't apply                                                               
the  pesticide.  The  poles  are  treated  in  the  manufacturing                                                               
process and the  utility company installs it. He  didn't think it                                                               
fits in this case.                                                                                                              
                                                                                                                                
SENATOR WIELECHOWSKI  said that was  a good point. He  recalled a                                                               
recent incidence in which hundreds  of wells were polluted. Under                                                               
strict  liability Flint  Hills is  responsible.  But this  swings                                                               
responsibility to the other side  of the pendulum and his concern                                                               
is that  utilities have easements  all across the state.  So, who                                                               
is responsible  if they are  eliminating liability for  a person,                                                               
defined  as  anyone? Who  is  responsible?  The manufacturer?  It                                                               
shouldn't be a  person who has absolutely no say  about where the                                                               
poles go. And Pentachlorophenol, called  "Penta," is banned in 26                                                               
countries. Private home owners are  being forced to put a product                                                               
on  their property  that is  a  known carcinogen,  that has  been                                                               
listed  by  the  EPA  as  being extremely  toxic,  and  that  has                                                               
contaminated water  wells in other  states. His reasoning  was if                                                               
someone was  grossly negligent, at  least keep the  liability for                                                               
the applicator or the manufacturer.                                                                                             
                                                                                                                                
SENATOR MICCICHE said he was sure  there is a place in Alaska law                                                               
saying if gross  negligence occurs in the installation  of a pole                                                               
- penetrate  an aquifer,  for instance, not  with Penta  but with                                                               
some geologic  damage - this  does not release a  utility company                                                               
from  gross  negligence  as  they  carry  out  their  duties.  It                                                               
releases them from  the effects of Penta. In this  case, Penta is                                                               
what  is used  for power  poles in  the United  States. It's  not                                                               
banned in the U.S. In fact,  it is specifically exempted if it is                                                               
used under  the Federal  Insecticide, Fungicide,  and Rodenticide                                                               
Act (FIFRA).                                                                                                                    
                                                                                                                                
SENATOR  GIESSEL  said  they  have  heard  that  a  pole  somehow                                                               
contaminated an aquafer for a shall  well in Vermont and asked if                                                               
he knew how  deep the poles are inserted into  the ground and how                                                               
deep are  wells are  that are  certified by  DEC. She  knows that                                                               
people in the  Hillside area of Anchorage seal the  tops of their                                                               
wells because  natural nitrates  seep in  from the  vegetation on                                                               
the surface.                                                                                                                    
                                                                                                                                
3:49:40 PM                                                                                                                    
RACHEL   HANKE,  staff   to   Senator   Micciche,  Alaska   State                                                               
Legislature, answered  that the utility poles  are inserted eight                                                               
feet below ground level.                                                                                                        
                                                                                                                                
SENATOR  WIELECHOWSKI  asked if  the  federal  government or  any                                                               
other  state  provides  absolute  exemption  from  liability  for                                                               
damages caused by Penta in a utility setting.                                                                                   
                                                                                                                                
SENATOR MICCICHE said he would have to get that answer for him.                                                                 
                                                                                                                                
3:50:55 PM                                                                                                                    
KRISTIN  RYAN,   Director,  Division  of  Spill   Prevention  and                                                               
Response (SPAR), Department  of Environmental Conservation (DEC),                                                               
Anchorage, Alaska, answered  that she wasn't aware  of any states                                                               
or the federal government doing that.                                                                                           
                                                                                                                                
SENATOR WIELECHOWSKI  said the one  thing Vermont did  was create                                                               
best management practices,  and he wondered if  the sponsor would                                                               
support  an amendment  that required  DEC  to come  up with  best                                                               
management  practices for  installing and  removal of  poles that                                                               
are treated with registered pesticides.                                                                                         
                                                                                                                                
SENATOR MICCICHE responded that he expects the DEC to do that.                                                                  
                                                                                                                                
SENATOR  WIELECHOWSKI  asked  if  the  sponsor  would  object  to                                                               
redefining  "person" so  that  the ones  that  are excluded  from                                                               
liability are the utilities and  the state but not the applicator                                                               
or manufacturer of the pesticide.                                                                                               
                                                                                                                                
SENATOR MICCICHE replied that he  wanted to think that over until                                                               
tomorrow.  The utilities  and  the state  might  already have  an                                                               
exemption under FIFRA.                                                                                                          
                                                                                                                                
He  said Rotenone  is an  insecticide/pesticide,  that the  state                                                               
uses to poison  entire water systems to kill  pike. When Rotenone                                                               
arrives in a  container it has a dangerous sticker  on it because                                                               
in a concentrated  form it is dangerous. It is  applied in a much                                                               
less concentrated form. The toxicity is  gone in five to six days                                                               
in spring  sunlight. It quickly  reaches its half-life and  is no                                                               
longer toxic.  He is  bringing this up  because they  are talking                                                               
about  permitted  use  for  a  very  specific  case.  The  Alaska                                                               
Department of  Fish and Game (ADF&G)  - when one talks  about its                                                               
risk to fish - uses Rotenone because it is not good for fish.                                                                   
                                                                                                                                
SENATOR  MICCICHE said  in the  case of  utility poles,  Penta is                                                               
used very locally. When samples  have been taken, it remains very                                                               
close to  the pole and  in very low  levels. When it  is exempted                                                               
under FIFRA  it is for  a specific use,  which is related  to the                                                               
installation, removal,  and replacement  of power poles  that are                                                               
treated with a substance that is used all over the country.                                                                     
                                                                                                                                
3:56:51 PM                                                                                                                    
SENATOR WIELECHOWSKI said there  are 250,000 poles across Alaska,                                                               
and  he agreed  that  it  is extremely  rare  for  someone to  be                                                               
damaged, but  he wasn't  aware of any  waiver of  liability under                                                               
federal law for  using these substances. He was  curious if ADF&G                                                               
had undertaken any  studies of the impacts of  Penta on wildlife,                                                               
humans, and the environment in Alaska.                                                                                          
                                                                                                                                
MS. RYAN  answered that SPAR  is doing  a study right  now called                                                               
the  Contaminated  Sites  Program  on some  poles  in  the  Kenai                                                               
Wildlife  Refuge. The  results aren't  out  yet, and  she is  not                                                               
aware of  any other work being  done on Penta. She  said they all                                                               
rely heavily  on EPA work  when it  comes to pesticides,  and the                                                               
work they  have done on Penta  is very thorough as  well as being                                                               
accessible on line.                                                                                                             
                                                                                                                                
SENATOR  WIELECHOWSKI asked  how far  the study  has gone  and if                                                               
they had  found anything.  Maybe they don't  have to  worry about                                                               
this issue.                                                                                                                     
                                                                                                                                
MS. RYAN answered  that the contractor is  collecting samples now                                                               
and  the  data  is  being  coordinated  with  a  project  in  the                                                               
Department of  Transportation and Public Facilities  (DOTPF) that                                                               
is  adjusting a  road and  therefore, moving  some poles  nearby.                                                               
The samples  are being collected  and the results won't  be ready                                                               
for  several  weeks. The  question  they  are trying  to  answer,                                                               
knowing the product's toxicity through  the EPA, is if it behaves                                                               
the same way in the Alaskan  environment as it does in Vermont to                                                               
figure  out how  to  develop best  management  practices for  the                                                               
industry when the poles are used in wetlands.                                                                                   
                                                                                                                                
4:01:10 PM                                                                                                                    
SENATOR  WIELECHOWSKI said  it  looks like  this  issue is  being                                                               
rushed and  he wondered  if that  was premature  in light  of the                                                               
fact that a  study is going on  right now. They don't  know if it                                                               
is permeating into waters or not. He urged them to slow down.                                                                   
                                                                                                                                
SENATOR MICCICHE  said he wanted  to clarify that there  has been                                                               
no damage. They are talking  today because a detectable level was                                                               
found in one  instance of unscientific sampling.  He welcomes any                                                               
research by  the department,  but the reality  is that  the state                                                               
has 250,000 poles,  and if something is learned, they  may have a                                                               
different  way of  handling poles  in  the future.  This bill  is                                                               
about existing exposure to the  ratepayers and the utilities that                                                               
provide those services in Alaska.                                                                                               
                                                                                                                                
4:03:05 PM                                                                                                                    
CHAIR  GIESSEL  held  SB  173  in  committee  until  Friday  with                                                               
amendments due by 5 p.m. tomorrow.                                                                                              

Document Name Date/Time Subjects
Senate Resources - Updated Agenda - 2 - 14 - 18.pdf SRES 2/14/2018 3:30:00 PM
CSSB92- Version J - 2 - 7 - 2018.pdf SRES 2/14/2018 3:30:00 PM
SB 92
CSSB92 - Explanation of Changes - Version D to Version J - 2 - 12 - 2018.pdf SRES 2/14/2018 3:30:00 PM
SB 92
CSSB92 - Sectional Analysis Ver. J - 2 - 9 - 2018.PDF SRES 2/14/2018 3:30:00 PM
SB 92
CSSB92 - Fiscal Note - Dept Administration - 2 - 11 - 2018.pdf SRES 2/14/2018 3:30:00 PM
SB 92
CSSB92 - Fiscal Note - Dept Env Conservation - 2 - 9 - 2018.pdf SRES 2/14/2018 3:30:00 PM
SB 92
CCSB92 - Various Support - 2 - 9 - 2018.pdf SRES 2/14/2018 3:30:00 PM
SB 92
CSSB92 - Supporting Document - Additional Various Support - 2 - 10 - 2018.pdf SRES 2/14/2018 3:30:00 PM
SB 92
CSSB92 - Supporting Document - Letter Juneau Port Director - 2 - 11 - 2018.pdf SRES 2/14/2018 3:30:00 PM
SB 92
CSSB92- Supporting Document - Updated Letter AK Muni League - 2 - 12 - 2018.PDF SRES 2/14/2018 3:30:00 PM
SB 92
SB92 - Supporting Document - Letter Jakolof Bay Oyster Co - 2 - 13 - 2018.pdf SRES 2/14/2018 3:30:00 PM
SB 92
CSSB173 - Version D.pdf SRES 2/14/2018 3:30:00 PM
SB 173
CSSB173 - Legislative Legal Memorandum.pdf SRES 2/14/2018 3:30:00 PM
SB 173
SB173 - Testimony - Phil Steyer - Chugach Electric Assoc .pdf SRES 2/14/2018 3:30:00 PM
SB 173
CSSB173 - CORRECTED Explanation of Changes From Version A to Version D - 2 - 14 - 2018 .pdf SRES 2/14/2018 3:30:00 PM
SB 173
SB173 - Comments - Cook Inlet Keeper - 2 - 14 - 2018.pdf SRES 2/14/2018 3:30:00 PM
SB 173
CSSB92 - Fiscal Note - Dept Natural Resources - 2 - 13 - 2018.pdf SRES 2/14/2018 3:30:00 PM
SB 92
SB173 - Document - Penta Overview - EPA - 2 - 15 - 2018.pdf SRES 2/14/2018 3:30:00 PM
SB 173
SB173 - Document - Penta Mat Safety Data Sheet - Cumberland Electric Membership Corp - 2 - 15 - 2018.pdf SRES 2/14/2018 3:30:00 PM
SB 173
SB173 - Document - Penta Contam Drink Water from Utility Poles - Amer Journal Public Health - 2 - 15 - 2018.pdf SRES 2/14/2018 3:30:00 PM
SB 173