03/22/2004 01:10 PM House RES
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ALASKA STATE LEGISLATURE
HOUSE RESOURCES STANDING COMMITTEE
March 22, 2004
1:10 p.m.
MEMBERS PRESENT
Representative Nancy Dahlstrom, Co-Chair
Representative Beverly Masek, Co-Chair
Representative Cheryll Heinze, Vice Chair
Representative Bob Lynn
Representative Nick Stepovich
Representative Kelly Wolf
Representative Beth Kerttula
Representative David Guttenberg
MEMBERS ABSENT
Representative Carl Gatto
COMMITTEE CALENDAR
HOUSE BILL NO. 297
"An Act relating to wildfires and other natural disasters."
- HEARD AND HELD
SENATE BILL NO. 264
"An Act repealing the time limitation on the authority of the
Department of Natural Resources to enter into agreements with a
person or persons desiring to own an oil or natural gas pipeline
proposed to be located on state land for the purposes of
providing for payment of the reasonable costs incurred in
preparing for activities before receipt of an application under
the Alaska Right-of-Way Leasing Act; and providing for an
effective date."
- MOVED SB 264 OUT OF COMMITTEE
HOUSE BILL NO. 531
"An Act relating to natural gas exploration and development and
to nonconventional gas, and amending the section under which
shallow natural gas leases may be issued; and providing for an
effective date."
- SCHEDULED BUT NOT REFERRED
PREVIOUS COMMITTEE ACTION
BILL: HB 297
SHORT TITLE: WILDFIRES AND NATURAL DISASTERS
SPONSOR(S): REPRESENTATIVE(S) STOLTZE
05/05/03 (H) READ THE FIRST TIME - REFERRALS
05/05/03 (H) STA, RES
01/13/04 (H) STA AT 8:00 AM CAPITOL 102
01/13/04 (H) <Bill Hearing Postponed>
02/03/04 (H) STA AT 8:00 AM CAPITOL 102
02/03/04 (H) Scheduled But Not Heard
02/05/04 (H) STA AT 8:00 AM CAPITOL 102
02/05/04 (H) Heard & Held
02/05/04 (H) MINUTE(STA)
02/26/04 (H) STA AT 8:00 AM CAPITOL 102
02/26/04 (H) Moved Out of Committee
02/26/04 (H) MINUTE(STA)
03/15/04 (H) STA RPT 1DP 1NR 4AM
03/15/04 (H) DP: LYNN; NR: GRUENBERG; AM: SEATON,
03/15/04 (H) HOLM, BERKOWITZ, WEYHRAUCH
03/15/04 (H) STA REQUESTS JUD REFERRAL
03/15/04 (H) FIN REFERRAL ADDED AFTER RES
03/22/04 (H) RES AT 1:00 PM CAPITOL 124
BILL: SB 264
SHORT TITLE: REPEAL PIPELINE PREAPPLICATION DEADLINE
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
01/14/04 (S) READ THE FIRST TIME - REFERRALS
01/14/04 (S) RES
01/28/04 (S) RES AT 3:30 PM BUTROVICH 205
01/28/04 (S) Moved SB 264 Out of Committee
01/28/04 (S) MINUTE(RES)
01/30/04 (S) RES RPT 4DP 1NR
01/30/04 (S) DP: OGAN, STEVENS B, SEEKINS, DYSON
01/30/04 (S) NR: ELTON
02/25/04 (S) TRANSMITTED TO (H)
02/25/04 (S) VERSION: SB 264
02/26/04 (H) READ THE FIRST TIME - REFERRALS
02/26/04 (H) O&G, RES
03/16/04 (H) O&G AT 3:15 PM CAPITOL 124
03/16/04 (H) Moved Out of Committee
03/16/04 (H) MINUTE(O&G)
03/18/04 (H) O&G RPT 4DP 1NR
03/18/04 (H) DP: HEINZE, KERTTULA, ROKEBERG,
03/18/04 (H) KOHRING; NR: CRAWFORD
03/22/04 (H) RES AT 1:00 PM CAPITOL 124
WITNESS REGISTER
BEN MULLIGAN, Staff
to Representative Bill Stoltze
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented CSHB 297 on half of
Representative Stoltze, sponsor, and answered questions from the
members.
GAIL VOIGTLANDER, Assistant Attorney General
Supervisor, Torts and Worker's Compensation Section
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Testified on HB 297 and answered questions
from the members.
LIEUTENANT ALLEN STOREY, Director of Staff
Alaska State Troopers
Department of Public Safety
Anchorage, Alaska
POSITION STATEMENT: Testified on HB 297 and answered questions
from the members.
DEAN BROWN, Deputy Director
Division of Forestry
Department of Natural Resources
Anchorage, Alaska
POSITION STATEMENT: Testified on HB 297 and answered questions
from the members.
RICHARD LeFEBVRE, Deputy Commissioner
Office of the Commissioner
Department of Natural Resources
Anchorage, Alaska
POSITION STATEMENT: Testified in support of SB 264; explained
the preapplication process and the purpose for the bill.
ACTION NARRATIVE
TAPE 04-16, SIDE A
Number 0001
CO-CHAIR NANCY DAHLSTROM called the House Resources Standing
Committee meeting to order at 1:10 p.m. Representatives
Dahlstrom, Masek, Lynn, Stepovich, and Guttenberg were present
at the call to order. Representatives Heinze, Wolf, and
Kerttula arrived as the meeting was in progress.
HB 297-WILDFIRES AND NATURAL DISASTERS
Number 0037
CO-CHAIR DAHLSTROM announced that the first order of business
would be HOUSE BILL NO. 297, "An Act relating to wildfires and
other natural disasters."
Number 0078
BEN MULLIGAN, Staff to Representative Bill Stoltze, Alaska State
Legislature, presented CSHB 297 on half of Representative
Stoltze, sponsor.
Number 0099
CO-CHAIR MASEK moved to adopt CSHB 297, 23-LS1073\H, Luckhaupt,
3/18/04, as the working document. There being no objection,
CSHB 297, version H, was before the committee.
MR. MULLIGAN told the members that this bill came about due to
Miller's Reach fire, and then later, the Lazy Mountain fire. He
explained that a lot of people were forced to evacuate the area.
Some individuals were able to regain entry to the area and were
able to personally save their homes. Representative Stoltze
introduced this legislation in an effort to allow individuals to
either regain entry or remain at their place of residence in
order to save their property.
Number 0240
REPRESENTATIVE GUTTENBERG asked if Mr. Mulligan could review the
differences between the CS and the original bill.
MR. MULLIGAN replied that one change addresses the issue of
minors accessing the area. The change indicates that the person
gaining reentry or remaining must be an adult, he said.
MR. MULLIGAN said another change refers to (b) on page 2, [lines
30 and 31, and page 3, lines 1 through 3], which reads as
follows:
(b) Notwithstanding another provision of law, the
state, a municipality, a fire department, an emergency
medical, rescue, or emergency services organization or
an employee or volunteer of the state, a municipality,
a fire department, or an emergency medical, rescue, or
an emergency services organization is not liable for
property damage or the injury or death ...
MR. MULLIGAN explained that this language was expanded to
include the removal of liability of emergency personnel for
property damage.
CO-CHAIR DAHLSTROM announced for the record that Representative
Heinze and Kerttula have joined the meeting.
Number 0365
GAIL VOIGTLANDER, Assistant Attorney General, Supervisor, Torts
and Worker's Compensation Section, Department of Law, testified
on HB 297 and answered questions from the members. She
acknowledged that she has not seen the CS which is being
discussed; however, if she understands the presentation
correctly some of the department's concerns have been addressed.
Ms. Voigtlander explained that she did have concerns with the
original bill where there could be competing statutes and
children could be placed at risk. The CS addresses that point.
As she understands it, she said, the CS only provides for adults
to remain or return to an evacuated area. Ms. Voigtlander said
if that is the case it removes any conflict with child
protective statutes.
MS. VOIGTLANDER commented that another concern the department
had was with the scope of immunity that was being provided by
the bill. It appears that property damage has been added into
the CS so immunity for both personal injury and property damage
are included.
Number 0448
MS. VOIGTLANDER pointed out that there remains a couple of
issues that do not seem to be addressed by the CS. She pointed
to the need for clarity on the scope of immunity which is
discussed in (b) [page 2, lines 30 and 31, and page 3, lines 1
through 3, text previously provided]. Ms. Voigtlander explained
that this language could be read to include claims by any person
or it could be read to only include claims by the person who is
allowed to reenter or stay in an evacuated area. When there is
personal injury or property damages often times it involves
others interests as well, she said. Ms. Voigtlander suggested
that subsection (b) be tightened up so that no civil action may
be filed for injury, death, or property damage out of provisions
of the section.
MS. VOIGTLANDER said that another issue which needs to be
addressed in subsection (b) is a concern that if individuals are
allowed to remain in or reenter an evacuated area, there may be
claims made by their neighbors if their neighbors believe that
individuals who stay in the area may do things to their property
which causes them loss or theft. She referred to some suggested
wording that would provide for that issue so that emergency
providers would also be immunized from third party claims.
MS. VOIGTLANDER made a final suggestion to include broader
language which would take care of the issue of paper trails in
order to defend tort claims that might arise. She explained
that as the bill is presently drafted, if for example someone is
allowed to reenter or to stay in an evacuated area, and the
emergency provider has given that individual a list of rights,
which is required by the bill, it would also require that a
determination be made that the person who wishes to remain or
reenter is competent to make that decision in order to defend
against claims downstream. Ms. Voigtlander emphasized that it
is not an issue of whether the emergency personnel are qualified
to make these determinations, but that in order to defend a law
suit two years downstream, it is necessary to have the documents
that would show that the person was informed of their rights and
that competency was determined. She said it is important to be
mindful that this bill is written to address issues in an
emergency situation, so this poses some procedural problems in
ensuring that everything in the bill is followed and then
documented.
Number 0895
CO-CHAIR MASEK noted that the fiscal note is the same for the CS
the committee adopted as the working document. She referred to
the analysis in the fiscal note from the Department of Law that
says the following:
...expected to have a fiscal impact on the Department
of Law that will arise in the event that an emergency
worker's on-the-spot decision is challenged...
CO-CHAIR MASEK asked Ms. Voigtlander to comment on that point.
MS. VOIGTLANDER replied that the Department of Law would be
challenging lawsuits that challenge whether or not everything
that was required under the law was actually done. This would
include issues of fact rather than issues of law, so it could
not be summarily disposed of and could in all likelihood result
in jury trials on these issues. Since this bill does not take
care of third party claims it is quite possible that there would
be tort claims raised by family members of someone who was
allowed to remain or reenter or by other property owners who
have third party claims.
Number 1029
REPRESENTATIVE GUTTENBERG commented that even though this bill
deals with wildfires and natural disasters, he said it is his
belief that this bill should have a House Judiciary Standing
Committee referral because many of his concerns deal with issues
under judiciary purview.
REPRESENTATIVE GUTTENBERG pointed out that individuals who are
allowed to reenter or remain in an evacuated area are facing
very high stress levels. He said he is concerned that
individuals would be presented with a list of conditions under
which the individual is permit to enter. What if the family
comes back later and says the person who may have died in the
fire was not rational and should never have been allowed to
remain or reenter. Representative Guttenberg asked what the
state's role is in this.
Number 1110
MS. VOIGTLANDER responded that the emergency evacuation may have
been done by state agents or agencies, or local agents or
agencies, or it could be done by coordinated teams of state,
federal, and local personnel. She said that Representative
Guttenberg's point is exactly the issue that she was referring
to in her earlier statement. If after the fact, someone were to
challenge whether the determination was properly made or whether
the resident was or was not competent to understand the risks
he/she were putting themselves in, the state could face
liability, she said.
MS. VOIGTLANDER told the members that last session there was
legislation passed that included immunity provisions in Title 41
that relate to wildfires. There are sections in there for
reckless conduct or things of that nature. She said that since
this bill provides for immunities there may be an issue as to
whether it is the intent of the legislature to make in roads
into immunities that passed last session related to wildfires
and emergency situations. The legal issue that this raises is
whether or not this bill is intended to cut back on those
immunities. Ms. Voigtlander said that if it is not intended to
do so, but that the intent is to allow residents to enter or
remain in an evacuated area, the way to avoid liability to
local, state, and federal governments would be to provide
broader language such as "there may be no claims arising out of
this bill". That way there would be no incompatibility between
HB 297 and the statutes that were passed last session, Ms.
Voigtlander summarized.
CO-CHAIR DAHLSTROM told the members that after hearing the other
testifiers, it is her intention to hold the bill. There have
been significant concerns brought forward both from the sponsor
and the testifiers.
Number 1349
REPRESENTATIVE KERTTULA asked if Ms. Voigtlander knows if any
other state has laws similar to what is being proposed in this
bill.
MS. VOIGTLANDER replied that she has not looked at the issue of
how other states handle individuals reentering [or remaining] in
an evacuated area.
REPRESENTATIVE KERTTULA commented that she thinks this is
unusual.
Number 1403
LIEUTENANT ALLEN STOREY, Director of Staff, Alaska State
Troopers, Department of Public Safety (DPS), testified on HB 297
and answered questions from the members. He preferenced his
comments by saying that he just received a copy of the CS and
has not had an opportunity to discuss it with the commissioner
of the DPS, so his testimony is based upon past discussions of
the issues, and not necessarily in light of the CS. Lieutenant
Storey told the members that the lessons of the Big Lake fire
and the Lazy Mountain fire were not lost on the department and
those lessons that were learned will help the department manage
instances like that in the future.
LIEUTENANT STOREY explained that the department is in compliance
with the governor's Administrative Order 170 which was signed in
January of 1997. From this order a plan was put together which
was primarily spearheaded by the Department of Natural Resources
(DNR) with DPS, local, and other agency involvement, to outline
in great detail how to manage these kinds of incidents. He said
that DNR and DPS use this plan now when dealing with natural
disasters and other events that are applicable. The plan has
many of the same provisions that are in the proposed bill,
Lieutenant Storey commented. The plan is actually more
resident-friendly and provides for more flexibility, he added.
He emphasized that the plan which already exists is very dynamic
and has the input of all the agencies. Don Savage, who at the
time was a captain with the Alaska State Troopers in Palmer and
is now the chief of the Wasilla Police Department, is an expert
in the incident command system, he said. Lieutenant Storey
reaffirmed his belief that the plan is more comprehensive than
the provisions of the bill.
LIEUTENANT STOREY clarified that the authority to evacuate an
area is very limited. It is primarily centered at the feet of
firefighters who can order an evacuation, he said. He
summarized that DPS would be working through the incident
command system. He reiterated that the exiting plan is more
user-friendly, has greater flexibility, and addresses the issues
that HB 279 is targeting.
Number 1638
REPRESENTATIVE WOLF referred to the Kenai Lake fire in 2001
where there was tremendous community support to protect
structures. There was an ordered evacuation to take citizens to
Seward; however, it is his understanding that very few people
left. They remained behind to protect their homes, he added.
Representative Wolf asked if it is up to individuals to
determine whether they leave or not after an evacuation order is
given.
LIEUTENANT STOREY replied that is a prime example where this
plan was used. He said he understands from previous hearings
that the plan has been used on three wildfires. Lieutenant
Storey said the plan does not have the enforced evacuation
provisions in it, it allows people to stay and try to protect
their property. However, in the public safety industry it is
their responsibility to make people aware of the dangers and
seek voluntary compliance if it is appropriate to do so.
REPRESENTATIVE WOLF commented that the volunteer support during
that fire is the very reason there is a Trail Lakes Campground
on the Kenai Lake. A volunteer firefighter, who did not have
his red card, jumped on a CAT and cut a fire line around the
Trail Lakes Campground. The fact that he was discovered that he
was not certified about half way through the process, so a
certified firefighter jumped on the CAT and rode with him,
Representative Wolf said.
Number 1790
DEAN BROWN, Deputy Director, Division of Forestry, Department of
Natural Resources, testified on HB 297 and answered questions
from the members. He told the members that he supports the
testimony provided to the committee. Mr. Brown offered that the
department has utilized and refined the evacuation guidelines
that were developed in order to essentially implement
evacuations. There is a working process ongoing with the
homeowners' association on Lazy Mountain, Alaska State Troopers,
and the Department of Military and Veteran Affairs.
Number 1843
REPRESENTATIVE HEINZE said she recalls that the priority in
fighting fires was saving lives, first; saving cabins, second,
and acreage, third. Is that correct she asked.
MR. BROWN agreed.
REPRESENTATIVE HEINZE posed a hypothetical question where an
individual either remains or reenters an evacuated area. Does
that mean that firefighting efforts will be shifted to save the
person who refuses to leave, she asked.
MR. BROWN commented that is a good observation. There have been
internal discussions about risking the lives of firefighters or
other support personnel to save the lives of individuals who
have gone back into an area that is known to be risky. That is
a concern and will be factored into any decision that is made,
he said.
REPRESENTATIVE HEINZE agreed that is a major concern. She
suggested that an obstinate person or one who for whatever
reason refuses to leave an area, can put a firefighter or rescue
personnel in jeopardy because they are charged with saving
lives. It also affects the strategy in fighting the fire,
Representative Heinze added.
MR. BROWN acknowledged that this is an important concern. Much
depends on the facts that are known at the time the decision is
made. He emphasized that [saving] lives is the primary mission,
then saving property.
REPRESENTATIVE HEINZE posed a hypothetical question where a fire
was threatening Talkeetna. However, there is one person who is
90 degrees South of there, and manpower will have to be pulled
to protect that person and possibly endanger other lives. What
if the decision was made to have greater security in Talkeetna,
and the one person who lives South of there is lost. She asked
what would happen then.
MR. BROWN suggested that question be posed to the Department of
Law. The incident commander makes decisions in many situations,
and while speculation is important in preplanning what might be
faced, he said he is not comfortable providing an answer without
having actual situation.
Number 2081
REPRESENTATIVE HEINZE commented that this bill may put the
department in a situation where it cannot get out.
MR. BROWN replied that he believes the comments that Ms.
Voigtlander made regarding exposure to liability for individual
firefighters and local municipalities are good ones.
REPRESENTATIVE GUTTENBERG shared that in his youth he fought a
lot of forest fires both in urban and rural settings. He noted
that there is a zero fiscal note and questioned whether a
component would be added for liability. He also asked if a
protocol would be written for individuals who come up a road or
trail and want a decision on whether or not he/she can go into
an area. Will there be a component for training with respect to
this, he asked.
MR. BROWN responded that policy and procedures are in place, and
there has already been training of firefighters. The liability
question is not one that he can address, he said. Mr. Brown
told the members that it is not the department's intention to
add a fiscal note for firefighter training at the point.
Number 2192
CO-CHAIR DAHLSTROM announced the HB 297 will be held in
committee.
[Co-Chair Dahlstrom passed the gavel over to Co-Chair Masek.]
SB 264-REPEAL PIPELINE PREAPPLICATION DEADLINE
CO-CHAIR MASEK announced that the final order of business would
be SENATE BILL NO. 264, "An Act repealing the time limitation on
the authority of the Department of Natural Resources to enter
into agreements with a person or persons desiring to own an oil
or natural gas pipeline proposed to be located on state land for
the purposes of providing for payment of the reasonable costs
incurred in preparing for activities before receipt of an
application under the Alaska Right-of-Way Leasing Act; and
providing for an effective date."
Number 2239
RICHARD LeFEBVRE, Deputy Commissioner, Office of the
Commissioner, Department of Natural Resources (DNR), testified,
and stated support for SB 264. He explained that the purpose of
the bill is to repeal the sunset date in AS 38.35.145(c). This
statute allows DNR to enter into agreements with prospective
lessees to recover the costs of preliminary work or
"preapplication work" on a pipeline right-of-way lease
application. He said the provision ended on December 31, 2003.
Mr. LeFebvre offered some background on the subject by
explaining that the pipeline right-of-way lease applicants must
submit very detailed applications that require significant
engineering, detail and design work. The requirement for that
is under AS 38.35.050 and .100. He said in doing this the
[applicant] must invest significant financial resources into a
project just to complete the application. He said applicants
have found that this is very useful, to have agencies involved
in pre-application phase, so [DNR] is aware of the permitting
issues at an early stage, and can address those issues in the
applications.
MR. LeFEBVRE said it provides both sides, the applicant and the
agencies, to get a good feel for what the requirements will be
for the final application. He explained that DNR has also found
that the preapplication participation of agencies expedites the
review and approval of the project. It also provides for more
certainty up front and less uncertainty further into the
process, he noted.
MR. LeFEBVRE said the aforementioned provision has been used
most recently in a preapplication work done on the Point
Thompson project before it was delayed, and was also used on the
Kenai-Kachemak pipeline extension. He explained that the types
of assistance that are provided at the preapplication stage
include identification and explanation of applicable state laws
and regulatory requirements, as well as explanation of the
regulatory process itself. Mr. LeFebvre said the identification
of land ownership, including state, federal, and private land,
affects the applicant and must be dealt with. He said it
benefits both sides to get a good feel exactly where the
alignment is or the corridor may be, and how that interaction
and interface would be with either the private sector, federal
agencies, or state agencies.
Number 2380
MR. LeFEBVRE explained that the identification of any
restrictions that exist on the affected state lands that might
interfere with authorizing the right-of-way or hinder the
applicant's construction itself might include third-party
interests such as utility rights-of-ways or other outside
influences such as possibly archeological sites. He said [DNR]
also gets into the identification of potential environmental
issues such as stream crossings and how those will be handled.
He said it is beneficial to both sides to resolve those issues
in a preapplication period instead of having to do modifications
to the applications later on or something to that effect. He
explained that the preapplication process could also include
assistance in reaching out to other affected parties such as the
utilities themselves, other landowners, or competing applicants
who understand the issues, and to help resolve them. He said
DNR also provides assistance with development of the
application's initial project description and application.
MR. LeFEBVRE explained that it also allows DNR to staff up in a
timely fashion, so when the applicant does turn in the
application; DNR is ready to move quickly into the project and
through the process. He pointed out that the preapplication
work is completely applicant initiated and voluntary, and he
explained that an applicant may initiate the request for the
preapplication services but are under no obligation to do so.
However, he said without this legislation DNR is not able to
work with applicants until an application is received.
MR. LeFEBVRE said DNR uses the funds it receives to allow the
staff to participate in that particular project. He said there
is no fiscal impact for having this legislation, but the impact
of not passing it is significant because without it [DNR] cannot
enter into the reimbursable agreements with the applicants
desiring the preapplication assistance [DNR] offers. Mr.
LeFebvre noted that DNR does not have any general funds
available to use to provide this preapplication assistance.
Number 2498
REPRESENTATIVE STEPOVICH asked if this new legislation would
have sped up the Point Thompson project and how long ago that
occurred. He also asked how often the applications are done.
MR. LeFEBVRE asked for clarification.
REPRESENTATIVE STEPOVICH clarified that he was asking how many
applications were submitted with regard to the Point Thompson
project.
MR. LeFEBVRE said [ExxonMobil Corporation] submitted one
application related to the Point Thompson project. He said a
total of approximately six applications have been received on
pipeline right-of-way leases.
REPRESENTATIVE STEPOVICH asked if these applications are part of
the unitization process.
MR. LeFEBVRE replied that it is totally separate and is part of
the development process "once they have all their other
paperwork in order and they want to go ahead and actually do the
development work." He said there were two portions to the Point
Thompson project - the right-of-way lease itself to the
pipeline, which would go from Point Thompson to Prudhoe Bay, and
the authorizations that were being sought for the project
development itself right at Point Thompson.
Number 2581
CO-CHAIR MASEK, upon determining no one else wished to testify,
closed public testimony.
Number 2586
CO-CHAIR DAHLSTROM moved to report SB 264 out of committee with
individual recommendations and the accompanying fiscal notes.
There being no objection, SB 264 was reported from the House
Resources Standing Committee.
ADJOURNMENT
There being no further business before the committee, the House
Resources Standing Committee meeting was adjourned at 1:50 p.m.
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