Legislature(2007 - 2008)CAPITOL 17
03/13/2007 01:30 PM House TRANSPORTATION
| Audio | Topic |
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| HB164 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| = | HB 164 | ||
ALASKA STATE LEGISLATURE
HOUSE TRANSPORTATION STANDING COMMITTEE
March 13, 2007
1:34 p.m.
MEMBERS PRESENT
Representative Kyle Johansen, Chair
Representative Mark Neuman, Vice Chair
Representative Anna Fairclough
Representative Craig Johnson
Representative Vic Kohring
Representative Mike Doogan
MEMBERS ABSENT
Representative Woodie Salmon
COMMITTEE CALENDAR
HOUSE BILL NO. 164
"An Act relating to reporting of vessel location by certain
commercial passenger vessels operating in the marine waters of
the state, to access to vessels by licensed marine engineers for
purposes of monitoring compliance with state and federal
requirements, and to the obligations of those engineers while
aboard the vessels; and providing for an effective date."
- MOVED HB 164 OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HB 164
SHORT TITLE: OCEAN RANGERS & REPORTING VESSEL LOCATION
SPONSOR(s): TRANSPORTATION
02/28/07 (H) READ THE FIRST TIME - REFERRALS
02/28/07 (H) TRA, FIN
03/08/07 (H) TRA AT 1:30 PM CAPITOL 17
03/08/07 (H) Heard & Held
03/08/07 (H) MINUTE(TRA)
03/13/07 (H) TRA AT 1:30 PM CAPITOL 17
WITNESS REGISTER
RANDALL RUARO, Staff
to Representative Johansen
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: As committee aide to House Transportation
Standing Committee, presented HB 164.
LYNN TOMICH KENT, Director
Division of Water
Department of Environmental Conservation
Anchorage, Alaska
POSITION STATEMENT: During hearing of HB 164, answered
questions.
RUTH HAMILTON HEESE, Assistant Attorney General
Environmental Section
Civil Division (Juneau)
Department of Law
Juneau, Alaska
POSITION STATEMENT: During hearing of HB 164, answered
questions.
ACTION NARRATIVE
CHAIR KYLE JOHANSEN called the House Transportation Standing
Committee meeting to order at 1:34:18 PM. Representatives
Johansen, Fairclough, Neuman, Johnson, Kohring, and Doogan were
present at the call to order.
HB 164-OCEAN RANGERS & REPORTING VESSEL LOCATION
1:34:30 PM
CHAIR JOHANSEN announced that the first order of business would
be HOUSE BILL NO. 164, "An Act relating to reporting of vessel
location by certain commercial passenger vessels operating in
the marine waters of the state, to access to vessels by licensed
marine engineers for purposes of monitoring compliance with
state and federal requirements, and to the obligations of those
engineers while aboard the vessels; and providing for an
effective date."
1:35:52 PM
RANDALL RUARO, Staff to Representative Johansen, Alaska State
Legislature, reminded the committee that last week it received
testimony about the difference between the cruise ship fleet
prior to 2002 and after 2002. Prior to 2002, only two out of 24
vessels in Alaska operated with an advanced wastewater treatment
system (AWTS). In today's fleet, 24 out of 29 large cruise
vessels operating in Alaska have AWTS. The number and trend is
growing every year, he said. In fact, the aforementioned
increase is an 1,100 percent increase over the past five years.
He highlighted testimony at the prior hearing in which it was
related that AWTS are state-of-the-art systems in wastewater
treatment technology that has been described as a system of
bioreactors and filters that basically treat wastewater through
enhanced aerobic digestion and low pressure membrane filtration.
MR. RUARO further recalled testimony from the prior hearing in
which it was related that AWTS allow the vessels to meet
discharge requirements and perform better, up to 50 percent
below the legal limits. Furthermore, the U.S. Coast Guard, in
documents provided to the committee, has said AWTS allow the
wastewater discharged by cruise ships traveling in Alaska's
waters to be clean enough to drink and is some of the cleanest
wastewater ever seen. Mr. Ruaro turned to DEC's report after
reviewing several years of cruise ship discharge data. He
highlighted the following statements made in DEC's February 9,
2004, report:
Since the passage of the Alaska cruise ship laws,
large cruise ships have installed AWTS systems that
meet the stringent U.S. Coast Guard requirements for
continuous discharge. The quality of the wastewater
on large ships has therefore improved dramatically.
WET testing results and a comparison of sample
results, indicate that the effluent from these
advanced systems is not expected to cause toxicity to
the marine environment. No human health risk is posed
by the low concentration of tested pollutants found in
wastewater samples and the wastewater samples indicate
that hazardous materials are not being discharged
through these wastewater treatment systems.
Test results indicated wastewater effluent from large
ships do not pose a risk to aquatic organisms, even
during stationary discharges. And none of the
pollutants mentioned above are present in
concentrations that would cause risk to human health.
1:39:51 PM
MR. RUARO, recalling the testimony regarding the monitoring and
testing of the samples that is currently being performed,
reminded the committee that some of the sampling of the cruise
ship wastewater systems is unannounced, staff work in teams of
two, the staff usually have a four-year degree in a science
field, and are trained how to properly take samples.
Furthermore, DEC has staff who monitor and evaluate the sample
taking. He noted that there's a list of 25 specific criteria
that DEC watches for and the results are reported to DEC and the
U.S. Coast Guard in writing. He recalled that the company
performing the monitoring has passed all the DEC audits of its
work in 2006. Additionally, a scientist with a PhD from the
University of Alaska Southeast periodically boards the cruise
ships to observe and report on the sampling procedures and
review the testing techniques of the laboratories. He recalled
that the monitoring company reported that it also passed all of
the audits by the professor as well. Mr. Ruaro highlighted that
all of the people involved in wastewater management for cruise
ships are required to follow the sampling and testing procedures
agreed upon by the U.S. Coast Guard and DEC in the Quality
Assurance/Quality Control Plan (QA/QCP), which is Tab 13 in the
committee packet. The aforementioned plan is reviewed and
updated annually. He also recalled Ms. Kent's, DEC, testimony
from the prior hearing in which she stated that the current
system is adequate and no further additions are necessary.
1:42:00 PM
MR. RUARO then turned to health and safety inspections. He
informed the committee that federal statutes provide the U.S.
public health service jurisdiction over health and safety on
cruise ships. The federal statutes are cited in the "Vessel
Sanitation Program Operations Manual" published by the Centers
for Disease Control. Mr. Ruaro mentioned that upon further
research he discovered that in 2006 the 27 cruise ships operated
by major lines in Alaska were inspected a total of 403 times by
trained federal inspectors. All but five of those inspections
were passed. Furthermore, none of the 27 vessels have had a
failed health and safety inspection in the last five years. Mr.
Ruaro characterized the standard on which these vessels are
being inspected as a white glove standard.
1:43:56 PM
MR. RUARO then moved on to the legislation itself, which
clarifies and amends the Ocean Ranger Program created by Ballot
Measure 2 [the Cruise Ship Ballot Initiative passed by Alaska
voters in August 2006]. He submitted that the legislation
aligns the scope of the program with the fairly low level of
risk presented to Alaska's waters by large cruise ships while
saving the state millions, as specified in DEC's fiscal note.
Section 1 clarifies that the U.S. Coast Guard will receive the
real-time hourly reports of vessel locations. Section 2
clarifies that owners or operators are only required to allow an
ocean ranger onboard the vessel at times designated by the
commissioner when the vessel is in the port. Therefore, HB 164
does amend the scope of the Ocean Ranger Program. Section 3
amends the scope of the public health duties to be performed by
ocean rangers by limiting them to duties associated with
monitoring, observing, and recording data and information
related to the recordkeeping and wastewater discharge functions
on the vessels required by state and federal law.
1:45:47 PM
REPRESENTATIVE NEUMAN highlighted the importance of recognizing
that a ballot initiative is the voice of the public. He then
asked if HB 164 will meet all the requirements specified in the
ballot initiative.
MR. RUARO stated that HB 164 reduces the scope of the Ocean
Ranger Program as well as the scope of the duties of the ocean
rangers. However, he opined that the overall goal of protecting
Alaska's waters isn't negatively impacted because the facts
illustrate that the aforementioned is already being adequately
accomplished.
1:46:55 PM
REPRESENTATIVE NEUMAN inquired as to which pollutants are tested
in the wastewater samples and the concentrations at which they
are found.
LYNN TOMICH KENT, Director, Division of Water, Department of
Environmental Conservation, said that she would have to review
the initial reports in order to determine all of the parameters
that are monitored. However, she recalled that conventional
pollutants, those pollutants that would normally be found in
sewage, are monitored. Furthermore, the analysis is run for
priority pollutants, which include metals and pesticides. The
standards that DEC uses to evaluate the sample data from the
Alaska water quality standards are designed to protect human
health.
1:48:09 PM
REPRESENTATIVE NEUMAN asked whether there is any way that the
cruise ships can bypass the treatment equipment. He expressed
the need to ensure that the equipment being used and monitored
by the environmental engineers can't be altered when no ocean
ranger is on board.
MR. RUARO recalled Mr. Phillips' testimony that it is difficult
to subvert the system and that usually there are two AWTS on
board these ships, which provides more than sufficient capacity
to handle the load.
1:49:20 PM
REPRESENTATIVE NEUMAN asked if there have been any penalties,
problems, or fines reported or levied by any oversight agencies
in the last several years.
MS. KENT answered that over the past few years the types of
violations that have occurred have primarily been related to air
opacity. The types of problems with wastewater discharges have
primarily been with how samples are collected. Ms. Kent said,
"By and large we've had very few situations that require the
department to take an enforcement action in the last few years."
1:50:57 PM
REPRESENTATIVE DOOGAN inquired as to how the testimony from the
industry and DEC change the fact that the initiative was
approved.
MR. RUARO replied that he didn't believe anything can change the
fact that the initiative was approved. However, the legislature
is given the express authority to amend initiatives. Mr. Ruaro
opined that the facts and the record support the legislature's
action in amending the initiative.
1:52:11 PM
REPRESENTATIVE DOOGAN recalled that DEC started the testing
program in 1999 or 2001 and the cruise ship industry began
improving the onboard wastewater treatment in 2002, and voters
approved the initiative in 2006. From that chain of events, can
we not assume that the voters were rejecting the notion that the
current wastewater treatment program was sufficient, he asked.
MR. RUARO acknowledged that the aforementioned is one assumption
that could be made. However, it remains within the
legislature's prerogative to review the facts and amend an
initiative, which he referred to as a check and balance on the
initiative process.
1:53:40 PM
CHAIR JOHANSEN added that the initiative didn't just address the
Ocean Ranger Program as it included other things, such as the
head tax and disclosure of business records.
1:54:06 PM
REPRESENTATIVE DOOGAN opined that the committee shouldn't
proceed under the assumption that 83,000 Alaskans didn't know
what they were doing when they voted for the initiative.
1:54:44 PM
REPRESENTATIVE NEUMAN recalled that when he was approached to
sign the ballot initiative, he discovered that some of the
proposed initiative language was different than how it was
verbally presented. Therefore, ballot initiatives can be
somewhat confusing, he opined.
1:55:47 PM
MS. KENT clarified that while she spoke to the effectiveness of
the current program at one of the prior hearings, she wanted to
be clear that DEC is moving ahead quickly with implementation of
the law as written. With regard to the enforcement data, Ms.
Kent related that in 2000 there were 15 air opacity violations,
which decreased to 2 in 2005. For the last few years, DEC has
issued either no or one notice of violation for fecal coliform
[counts that exceed the specifications]. Also, each year there
have been several compliance letters having to do with sampling
protocol issues.
MS. KENT, in response to Representative Neuman, explained that
the state has requirements with regard to the opacity of
emissions that come from the vessels and from other facilities.
There are limitations with regard to the thickness of the smoke
and how long it can last. In regard to how HB 164 would affect
DEC's plan, she stated that the ballot initiative [requires]
ocean rangers to ride with the vessels while in Alaskan waters,
while HB 164 would only require ocean rangers to be onboard the
vessel while it's in port. Under the ballot initiative, the
ocean rangers are also responsible for ensuring that passengers,
crew, and residents at ports are protected from improper
sanitation, health, and safety practices. However, under HB 164
the responsibilities of ocean rangers would be limited primarily
to wastewater discharge issues associated with the vessels.
1:58:29 PM
MR. RUARO noted that the legislature also has the authority to
determine whether to appropriate funds, which would seem to
automatically include a review of the facts of the initiative.
1:59:19 PM
REPRESENTATIVE JOHNSON, regarding the expanded responsibilities
of the ocean rangers, asked if the state is going to be
responsible if someone gets sick. If the aforementioned is the
case, he asked if the state could be [held liable] for [sick
passengers].
MS. KENT reiterated that the initiative requires that the ocean
rangers evaluate health and safety issues.
2:00:27 PM
RUTH HAMILTON HEESE, Assistant Attorney General, Environmental
Section, Civil Division (Juneau), Department of Law, opined that
it would be fair to say that there's some exposure for health,
sanitation, and safety issues given the current status of the
law and the broad language related to the duties of the ocean
rangers. However, the extent of exposure won't be known until a
suit is brought and an allegation that the ocean ranger didn't
fulfill his/her duty is made.
2:02:13 PM
REPRESENTATIVE JOHNSON opined that the only entities with deeper
pockets than the cruise ship industry and the oil industry,
would be the state. Therefore, he further opined that the state
would be the target of a suit [in which an ocean ranger is
alleged to have not fulfilled his/her duty in the protection of
the health and safety.]
2:02:26 PM
REPRESENTATIVE FAIRCLOUGH pointed out that usually the causer of
a particular incident is the proportionately responsible party
in any litigation. Therefore, while Alaska and an ocean ranger
may be held as a party in suit, the person who actually caused
the problem, the cruise industry in noncompliance, would be more
proportionately penalized. As with everything the [legislature]
does on behalf of the state, the state could be held in a liable
position. However, she opined that the industry would be held
to the standard in a court of law. She reiterated that in the
end the responsible party for an outbreak onboard a ship would
be the cruise ship and the particular governing body onboard at
the time.
REPRESENTATIVE JOHNSON clarified that his point is that the
state would be the governing body onboard the ship responsible
for the health and sanitation, as per statute.
MS. HEESE noted her agreement with Representative Fairclough
that there would be a variety of defendants reviewed in a
situation in which there is [an outbreak or accident]. However,
one must also remember that there are other agencies that also
hold primacy above the ocean rangers with regard to certain
precautions that are to occur onboard the ship. For instance,
the U.S. Center for Disease Control, the U.S. Coast Guard and
the Environmental Protection Agency may all have some supremacy
over the ocean rangers' duties. Still, the variety of
defendants doesn't eliminate the state from the potential risk
of exposure to suit.
2:04:42 PM
MR. RUARO then turned to the legislature's ability to amend
[initiatives] and recalled an article in the Juneau Empire that
described the Alaska Constitution as written in such a manner
that it's easy to understand, a characterization with which he
said he agreed. He pointed out that in Article XI, Section 6,
the constitution specifically grants the legislature the
authority to amend an initiative, although it can't repeal an
initiative. Mr. Ruaro submitted that the legislature has full
authority to amend initiatives. The plain language definition
of the term "amend" from Webster's and the American Heritage
Dictionary is to alter a measure formally by adding, deleting,
or rephrasing. Given the plain language of Article XI, he
opined that the legislature is free to amend the initiative in
the manner that HB 164 presents. Mr. Ruaro highlighted that the
constitution specifies that the legislature can amend the entire
initiative. Therefore, it's important to consider the
initiative as an entire piece rather than several small pieces.
In this case, this initiative reached the outer limits of the
single subject rule which it must follow. The proponents of the
initiative argued that the initiative was a single subject. The
legislation before the committee today only affects three parts
of the wastewater portions of the initiative. Mr. Ruaro related
his position that HB 164 is simply an amendment and does not
repeal the initiative, especially in light of the various things
the initiative does. Furthermore, the Warren v. Thomas case in
which the court addressed the scope of the legislature's
authority to amend an initiative regarding conflict of interest
laws. The legislature amended the initiative by expressly
repealing one section and two subsections as well as impliedly
repealing other sections. The court upheld the legislature's
act, noting that the legislature's actions didn't necessarily
mean that the act as a whole [the initiative] was repealed.
Therefore, Mr. Ruaro opined that HB 164 is constitutional.
2:08:59 PM
CHAIR JOHANSEN clarified that the intent of HB 164 is not to fly
in the face of what the voters wanted. However, the Alaska
State Constitution provides the legislature the authority to
amend initiatives to make them work properly. The [goal] is to
practically implement the program [passed through the
initiative].
2:10:32 PM
REPRESENTATIVE DOOGAN pointed out that while it is true that HB
164 only applies to a section of the initiative, it's the only
section before the committee. He suggested that the committee
review whether it is repealing the section of the initiative
before it in HB 164. Representative Doogan opined that this
legislation addresses the section of the initiative that places
observers onboard cruise ships and is changing that section to
"people who do something in ports." He said he wasn't sure what
these ocean rangers will be doing in the ports because there is
already an existing system that tests whether wastewater systems
work in ports. However, there is no existing program in which
individuals test wastewater while the cruise ships are at sea
and discharging waste. Therefore, HB 164 would eliminate the
program [specified in the initiative] in which individuals are
onboard the cruise ship at sea when the waste is being
discharged.
REPRESENTATIVE DOOGAN said that he has read the history of the
courts' rulings on the initiative process and he didn't see how
Section 3 [would be constitutional]. He opined, "I don't think
you can take a section that says, 'including but not limited to'
and then limit it and not in essence be repealing that section."
The one case in point refers to a State of Washington case in
which its legislature did exactly the opposite of what the
initiative said and the courts held that the legislature
exceeded its authority. The aforementioned was adopted by
reference as a precedence for the Warren v. Thomas case
mentioned earlier. Therefore, he surmised that the question is
what is the net affect of [HB 164]. He further surmised that
it's reasonable to assume that when voters approved the
initiative, they thought they would be placing independent
observers onboard these ships while in Alaska water. This
legislation changes the aforementioned, and thus Representative
Doogan opined that HB 164 is a repeal of that provision.
Furthermore, Representative Doogan said he didn't believe the
changes in HB 164, save the change in Section 1, can be made.
2:13:55 PM
REPRESENTATIVE FAIRCLOUGH recalled testimony, which she said is
swaying her to support HB 164, relating that the limited number
of marine engineers in the state are all working in the Alaska
Marine Highway System (AMHS). With regard to whether there is a
process to train marine engineers, she related that she was told
it would be a long process for someone to become an authorized
licensed marine engineer. Therefore, she opined that the
initiative is asking for something that can't be provided and
thus it seems that there has to be a change because what the
initiative requires can't be implemented.
2:16:06 PM
REPRESENTATIVE NEUMAN opined that the initiative process
provides the legislature with [information] regarding what the
citizens of the state want. He indicated that if a better way
to provide those services is found, it's the legislature's job
to do so. He recalled testimony from DEC reporting that there
haven't been any violations in wastewater treatment in recent
years and there isn't any way to bypass the ship's systems.
Therefore, Representative Neuman said that he feels comfortable
that the waters of Alaska are safe, which he opined was the
purpose of the initiative. Representative Neuman opined that
[with HB 164] the program has been improved.
2:18:07 PM
CHAIR JOHANSEN noted his agreement with Representative Neuman.
He highlighted that in the Warren v. Thomas case the majority
decision was that the Washington State Legislature did exercise
its discretion properly.
2:19:43 PM
REPRESENTATIVE DOOGAN related his understanding that the
initiative doesn't specify that the marine engineers have to be
residents of Alaska, and therefore he surmised that the pool of
qualifying people could be U.S. Coast Guard certified marine
engineers from any place.
REPRESENTATIVE FAIRCLOUGH acknowledged that employing
nonresidents is a possibility, but she said she didn't believe
that's what the voters voted for.
2:20:19 PM
CHAIR JOHANSEN recalled that this question was raised to one of
the authors of the initiative during the committee's overview of
the Ocean Ranger Program to which the response was that those
who aren't quite qualified to be in the engine rooms in other
places would probably be available. Chair Johansen then
questioned the effect of this [initiative] on the AMHS and
indicated that it will be problematic to simply open the gates
to all qualified engineers.
2:21:47 PM
REPRESENTATIVE FAIRCLOUGH acknowledged that there are others
[outside of Alaska] who are capable of becoming a licensed
marine engineer in Alaska. She then highlighted the seasonality
of the industry and that there would be a limited period of time
in which the part-time help would be necessary. Therefore, she
questioned whether the state would employ [these marine
engineers] all year when these positions may only be necessary
for four to six months.
2:22:56 PM
REPRESENTATIVE NEUMAN moved to report HB 164 out of committee
with individual recommendations and the accompanying fiscal
notes.
REPRESENTATIVE DOOGAN objected.
A roll call vote was taken. Representatives Neuman, Fairclough,
Johnson, Kohring, and Johansen voted in favor of reporting HB
164 from committee. Representative Doogan voted against it.
Therefore, HB 164 was reported out of the House Transportation
Standing Committee by a vote of 5-1.
2:24:33 PM
ADJOURNMENT
There being no further business before the committee, the House
Transportation Standing Committee meeting was adjourned at 2:24
p.m.
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