Legislature(2017 - 2018)BUTROVICH 205
02/14/2018 03:30 PM RESOURCES
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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.