Legislature(2003 - 2004)
03/31/2004 01:34 PM Senate CRA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE COMMUNITY AND REGIONAL AFFAIRS STANDING COMMITTEE
March 31, 2004
1:34 p.m.
TAPE (S) 04-9
MEMBERS PRESENT
Senator Bert Stedman, Chair
Senator Thomas Wagoner, Vice Chair
Senator Gary Stevens
Senator Kim Elton
Senator Georgianna Lincoln
MEMBERS ABSENT
COMMITTEE CALENDAR
SENATE BILL NO. 361
"An Act relating to discharges from small commercial passenger
vessels; and providing for an effective date."
MOVED CSSB 361(CRA) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: SB 361
SHORT TITLE: SMALL CRUISE SHIP DISCHARGES
SPONSOR(s): RESOURCES
03/04/04 (S) READ THE FIRST TIME - REFERRALS
03/04/04 (S) CRA, RES
03/31/04 (S) CRA AT 1:30 PM FAHRENKAMP 203
WITNESS REGISTER
Linda Hay
Aide to Senator Scott Ogan
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Introduced SB 361
Dan Eastman
Director, Division of Water
Department of Environmental Conservation
410 Willoughby
Juneau, AK 99801-1795
POSITION STATEMENT: Testified on SB 361
Denise Koch
Division of Environmental Health
Department of Environmental Conservation
410 Willoughby
Juneau, AK 99801-1795
POSITION STATEMENT: Testified on SB 361
Brice Brockway
Vice President of Operations, Cruise West
2401 Fourth Ave. Suite 700
Seattle, WA 98121
POSITION STATEMENT: Testified in support of SB 361
Captain Michael Jones
Lindblad Expeditions
1415 Western Ave. Suite 700
Seattle, WA 98101
POSITION STATEMENT: Testified in support of SB 361
Chip Thoma
Box 21884
Juneau, AK 99802
POSITION STATEMENT: Testified on SB 361
Ray Gilespie
Lobbyist, Small Cruise Vessel Association
POSITION STATEMENT: Testified on SB 361
ACTION NARRATIVE
TAPE 04-9, SIDE A
CHAIR BERT STEDMAN called the Senate Community and Regional
Affairs Standing Committee meeting to order at 1:34 p.m. Present
were Senators Gary Stevens, Wagoner, and Lincoln. Senator Elton
arrived one minute later.
SB 361-SMALL CRUISE SHIP DISCHARGES
CHAIR BERT STEDMAN announced SB 361 to be up for consideration
and asked Ms. Hay to come forward and introduce the bill.
LINDA HAY, aide to Senator Scott Ogan, called attention to the
sponsor statement in the packets and explained that the intent
of the bill is to create a regulatory system allowing older
small passenger vessels to continue to operate in Alaska waters
while taking steps to minimize discharge and harm to the marine
environment.
CHAIR STEDMAN asked if there was someone from DEC who would like
to speak.
DAN EASTMAN, director of the Division of Water with the
Department of Environmental Conservation (DEC), introduced
himself and proceeded to explain that in 2001 the Legislature
passed a bill directing DEC to regulate the discharge of
wastewater from cruise ships. In February 2004 DEC released the
report "Assessment of Cruise Ship and Ferry Wastewater Impacts
in Alaska." According to the report, the news regarding
wastewater discharges from cruise ships is good.
Mr. Eastman explained that large cruise ships, which have more
than 250 passengers, are complying with the terms and conditions
set forth in the 2001 legislation. Small cruise ships are those
carrying between 50 and 250 passengers and although they are
compliant while underway, they are having difficulties when they
are stationary.
Early in the session the small cruise ship industry approached
the department seeking to work cooperatively to deal with small
cruise ship compliance problems. DEC suggested:
1. All new vessels must comply with the full force
and intent of the 2001 legislation. "So that we
would be dealing and talking about only existing
vessels."
2. Both new and existing vessels must maintain
compliance with the requirements of the bill
including those for registration, for sampling,
for reporting and inspection.
3. DEC would work with existing vessels on
legislation to develop best management practices
in regulation, which would seek to optimize
wastewater quality and to the extent possible,
provide compliance with water quality standards.
4. There must be an end point so that this interim
arrangement is of limited duration and not for
all time.
He concluded, "So the bill that you have in front of you
reflects and meets these four conditions in our opinion. We
consequently support the bill. We have provided a zero
fiscal note."
CHAIR STEDMAN recapped that this addresses small already built
cruise ships in state waters that aren't large enough to have
waste treatment facilities aboard. He then asked for an
explanation of what these vessels do with gray and black water
when they are underway as well as when they are in port or at
anchor.
MR. EASTMAN told him that cruise industry representatives might
be better able to describe their current practices.
SENATOR GARY STEVENS asked if he is comfortable that new vessels
are capable of carrying sewage and gray water treatment systems
to make themselves compliant.
MR. EASTMAN said that based on their discussions with the
industry, new vessels can be designed to comply with water
quality standards in the 2001 cruise ship legislation.
SENATOR GARY STEVENS asked if the bill has a date for when new
vessels have to be built to compliance.
MR. EASTMAN thought it was for vessels whose keels were laid as
of January 1, 2004.
SENATOR GEORGIANNA LINCOLN asked if it was correct that older
vessels wouldn't have to comply with the same standards as the
new vessels.
MR. EASTMAN replied, "The limit in the bill is that we couldn't
require physical changes to the vessels such that it would
require that the vessels undergo new stability testing by the
Coast Guard." Short of requiring major structural changes and
through best management practices that are promulgated as
regulations, they would require that the industry do everything
that is feasible to improve wastewater quality.
SENATOR LINCOLN said that didn't really answer her question
because she couldn't tell what would prevent someone from
purchasing an old vessel that didn't require wastewater
discharge compliance instead of having a new vessel built.
Regardless of the fact that "best management practices" are
defined on page 3, lines 24-26, those practices call for
protecting the environment "to the maximum extent feasible." The
meaning of that, she said, is in the eyes of the beholder. Why
wouldn't you take the easy and less expensive way out and buy an
old vessel rather than face a retrofit?
MR. EASTMAN replied:
Vessels with their keel laid before January 1, 2004
that aren't currently in service could be put into
service. It's important, I think, to understand though
that we would promulgate by regulation best management
practices. It's not a free ticket, it means that we
will regulate the vessels in a way that doesn't
require substantial retrofitting or changes - physical
changes to the vessel that are either currently in
service or the older vessels that would be put into
service.
As to your second point - the maximum extent feasible
- I agree is in the eyes of the beholder, but as the
beholder, in this case, it's always difficult to draw
a line in terms of use of words such as "practicable."
This was a compromise. It seemed to work to us. It
incorporates the two concepts: One, the maximum extent
- as much as possible, and then feasible with some
sort of practical limitations. The judgment basically
leaves it to the agency to define that phrase in
regulation.
CHAIR STEDMAN said his understanding is that the older ships
would have to be in Alaska already. He asked if it is correct
that, "They couldn't, in two or three years, bring in a ship out
of California or Florida that didn't comply."
MR. EASTMAN acknowledged that he didn't know and said that would
be a good question for the sponsor.
SENATOR KIM ELTON recalled that when the cruise ship legislation
was passed, the assumption was that it would spark technology
changes on large cruise ships that could then be adapted to
smaller cruise ships. That didn't work as planned though because
instead of adopting new technologies, they elected to discharge
3 miles off shore and he questioned whether that isn't why there
isn't more new technology.
MR. EASTMAN didn't agree entirely. The technology is there for
the larger cruise ships, but the problem is that it hasn't been
scaled down for smaller vessels.
SENATOR ELTON said:
So it's not necessarily the case that the technology
isn't being employed because they're discharging
elsewhere. You're saying they do have the technology.
Are you then saying that they are discharging within
state waters using the new technology?
DENISE KOCH, commercial passenger vessel program manager with
DEC, told him:
The majority of large ships have installed what I
broadly refer to as advanced wastewater technology. So
technology beyond typical marine sanitation device
that employs technology such as reverse osmosis or
ultra filtration and for large vessels, the majority
of those vessels have, as of 2003, and we expect this
trend to continue - that most vessels have installed
advanced technology and they do discharge in Alaska
waters - for large vessels.
SENATOR ELTON asked how many ships fall into the small passenger
vessel category compared to the total number of cruise vessels
in Alaska.
MS. KOCH replied it's probably in the 5 to 10 percent range.
CHAIR STEDMAN restated her answer saying that is for the small
ships versus the small and large combined.
MS. KOCH conferred with Mr. Eastman then said, "5 to 10
percent."
SENATOR LINCOLN made the point that more operators could
potentially enter the state as a result of SB 361 and questioned
how many ships comprise the current 5 to 10 percent and whether
there was a projected number in the near future.
MS. KOCH said that as of 2003, there were 5 state ferries and 14
small cruise ships.
SENATOR LINCOLN asked again whether she anticipated an increase
in the numbers of cruise ships as a result of this legislation.
MR. EASTMAN told her they have no information on that, but they
don't anticipate this legislation having a great impact on the
small cruise ship market.
SENATOR GARY STEVENS said the point Senator Lincoln brought up
regarding additional old vessels coming into the state is
interesting. He then asked if the same vessels operate in the
state from year to year.
MS. KOCH said that's correct, DEC hasn't seen much turnover in
the small cruise ship industry since 2003. The Cruise West and
Lindblad Expedition vessels are substantially the same.
SENATOR GARY STEVENS asked if there's anything she's identified
in the bill that wouldn't allow different older vessels to enter
the market in Alaska.
MS. KOCH said she saw nothing in the bill that would prevent a
new older small vessel from coming up to Alaska.
SENATOR ELTON said he was going to pull on that string a bit
more and asked:
If in fact a new old vessel does enter the market,
would they have to ... meet that three-year
requirement that they have a permitted wastewater
discharge regime or recipe?
MR. EASTMAN replied they would have to comply with best
management practices for the three-year approval.
CHAIR STEDMAN told Mr. Eastman to speak up.
MR. EASTMAN repeated his answer saying:
That's correct Senator Elton. The premise that a new
old vessel - older vessel - arriving newly or being
placed newly in service would still have to comply
with the best management practices that we would
promulgate by regulation and get approval for a three
year period to operate using [indisc.] best management
practices from DEC.
CHAIR STEDMAN reconfirmed that they must get approval from DEC
to not comply with the large ship requirements.
MR. EASTMAN said that's basically correct; instead they would
have to comply with the regulations established as best
management practices.
SENATOR ELTON asked for verification that these are vessel based
rather than fleet based provisions.
MR. EASTMAN replied the best management practices would apply to
the fleet and then continued to say, "there may be parts of the
regulations that provide for vessel specific practices, but
generally the regulations would be developed and promulgated for
the fleet."
SENATOR LINCOLN continued to question best management practices
because of the latitude in defining those practices. She also
questioned the language stating that the department may adopt
regulations arguing that it doesn't say the department shall or
will adopt regulations to implement the subsection. She opined
that the permissive language would allow the commissioner to
decide whether there will be regulations.
MR. EASTMAN conceded that he hadn't considered that point, but
DEC's intent is to draft regulations.
SENATOR ELTON read from page 3, lines 15-17 and opined that the
sentence sounds as though the requirements are vessel specific
rather than fleet specific.
MR. EASTMAN agreed with his interpretation and clarified that
the regulations are broadly written to be fleet specific, but
the actual plans that are submitted are vessel specific.
CHAIR STEDMAN announced that he would take testimony from two
off-net sites then return to the committee room for additional
testimony before bringing the matter back before the committee.
BRICE BROCKWAY, vice presidents of operations for Cruise West,
described the two New World Ship Management/Clifford Cruises
ships. The first is a 300-foot vessel that caries 204 passengers
and crew in the Bering Sea and the other is a 237-foot vessel
that carries 170 passengers and crew in Southeast waters. Next
he described Cruise West as a company that has been conducting
tours in Alaska since 1946. Currently they operate six vessels
in the state that carry from 70 to 114 passengers.
He emphasized that the wastewater these vessels process and
discharge meets the national/international standards. They
discharge while underway at 6 knots and DEC has determined that
this meets Alaska standards. What is at issue in this bill is
stationary discharge because the best management practices
include no discharge when stationary. It is vessel specific
because each vessel has different tankage ability.
To accommodate the vessel differences and adhere to best
management practices they limit the use of certain facilities
and carefully schedule their time in port. In addition they
limit time at anchor because they don't discharge while
stationary.
He noted the letters in the packets addressing the concern about
the stability change issue. The letter from the Elliott Bay
Design Group naval architects should answer why the cruise
companies don't want to undergo new stability tests or re-
licensing and certification.
CHAIR STEDMAN asked Mr. Brockway:
Why would you pump out your holding tanks and bring
your boats empty into the harbor? Why not stop your
discharge, bring you ships into the harbors and then
pump out your holding tanks?
MR. BROCKWAY said that would be ideal, but the problem is that
there aren't pump-out stations in Alaska. "So what we do is
we'll process through our type II equipment as we're under way
and then shut things down," he said.
CHAIR STEDMAN said he understands that a number of these ships
aren't moored very far from municipal sewer systems.
MR. BROCKWAY replied he was probably referring to the larger
communities, but there are no such facilities in smaller
villages and towns.
CHAIR STEDMAN said he was thinking of Petersburg, Wrangell,
Ketchikan and Juneau.
MR. BROCKWAY said correct.
SENATOR LINCOLN asked if they use the pump out facilities in
those larger communities whenever they are available.
MR. BROCKWAY said, "No we're not. But we are looking into them
and we're actually suggesting that maybe some more of the towns
and so on look into this." Their vessels don't tie up in small
yacht basins, which is more typically where pump stations are
located.
SENATOR LINCOLN remarked that she would encourage them to do
that. She then asked what it would cost to retrofit one of their
vessels.
MR. BROCKWAY explained that retrofitting is very involved. To
add more tankage, the vessels would have to be lengthened and
widened. "So you're going to be running into millions of dollars
in some cases." Changing a vessel to this extent would entail
adhering to other cruise ship construction regulations. "At that
point I think you would either opt to not run them in Alaska or
try to build new."
SENATOR GARY STEVENS indicated he had a number of questions on
the operations. He asked what the vessel lifespan is, the age of
the fleet, and whether the company favors running older vessels
or purchasing new compliant ones.
MR. BROCKWAY replied the average age of their fleet is 23 years
and they are exploring the option of new construction.
SENATOR GARY STEVENS asked how many years they plan to use their
vessels.
MR. BROCKWAY told him that when vessels are maintained and are
inspected regularly they could be used indefinitely. The
limiting factor is guest preference and they're finding that
their guests prefer new ships.
There were no further questions for Mr. Brockway.
CAPTAIN MICHAEL JONES, director of marine operations for
Lindblad Expeditions, testified via teleconference in support of
SB 361. His company has operated in Alaska since 1982 conducting
natural history cruises throughout Southeast Alaska. The Sea
Lion and Sea Bird are 152-foot sister-ships that carry 70
passengers and 24 crewmembers.
He noted that economic impact statements for both Lindblad
Expeditions and Cruise West were included in the bill packets as
background material. They give some idea of the companies'
Alaska marketing and money spent on fuel provisions and docking.
Referring to the discussion about technologies that have been
developed since the 2001 legislation, he pointed out that most
of it is designed for much larger ships and the footprint of the
wastewater treatment systems are typically larger than can be
accommodated by the smaller vessels. In addition, the larger
vessels have been able to convert their ballast tanks to solid
waste holding tanks, but the smaller vessels don't usually have
ballast tanks and therefore don't have that capability.
As part of the best management practices, Lindblad Expeditions
is working with communities to explore waste pump out options.
In particular, their agents have been in contact with the ports
in Sitka, Juneau and Petersburg to discuss the different
alternatives. They are also adjusting times in port or at anchor
and they are limiting laundry schedules so that the ships spend
less stationary time since that is when wastewater disposal is
at issue.
Lindblad Expeditions continues to work with the manufacturer of
their existing equipment and others to try to improve and/or
downsize new wastewater technology to fit the systems into
existing smaller vessels. They are trying to meet the standards
without having to reconstruct the vessels and that's quite a
challenge, he said. Recent estimates indicate that it would cost
$1 million to modify the Sea Bird, the vessel would be out of
service for three to four months, and after the refit it would
accommodate six fewer guests.
CHAIR STEDMAN asked him to elaborate on the procedures for
handling wastewater discharge when at anchor in restricted bays
for daytime excursions and also for overnight moorage.
CAPTAIN JONES explained that the idea is to discharge all the
wastewater when they are cruising offshore at six knots. When at
anchor, their ships have the capability of remaining stationary
for about six hours before they have to get underway again to
pump. The boat is anchored while guests go on day excursions,
which seldom last longer than four hours and they are often
underway during the night. He said he couldn't think of any
small bays that they anchor in overnight.
There were no further questions for Captain Jones.
CHIP THOMA, representing himself, informed members that he
served as a citizen representative on the 2001 cruise ship
initiative. DEC, the Coast Guard, and citizens collaborated and
eventually came to a consensus on cruise ship discharge testing.
Giving some background, he told members that according to
onboard pilots, the approximately 25 large ships operating in
Alaska were targeting donut holes to legally discharge sewage in
inside waters. "Some of those existed right down here in
Fredrick Sound, some in Icy Strait at Point Adolphus. These were
areas that were three miles away from shore so they were legally
outside state jurisdiction."
These large ships were discharging large amounts of sewage in
these donut holes and as a consequence, Senator Frank Murkowski
sponsored federal legislation to test the ships' discharge of
black and grey water. He described the levels as "through the
roof" due largely to the fact that the onboard treatment systems
were not maintained. Since then the larger ships have gotten new
treatment systems and use their ballast tanks as wastewater
holding tanks. When the legislation was passed the small ships
were given a three-year exemption. Mr. Thoma said this was
justified because the ships were all U.S. built and crewed.
Although SB 361 is an effort to address the gap in coverage, he
is concerned with the statements saying that the vessels can't
feasibly comply with the program to eliminate the unacceptably
high levels of grey and black water because of technology
limitations. Referring to the letter from marine engineer John
Waterhouse, he said he appreciates the concerns about adding
volume to the vessels, but the letter didn't address replacement
with new treatment systems of equal or comparable weight. There
shouldn't be a problem with that concept he said, but the bill
doesn't encourage such replacements. "I personally believe that
technology can cure the ships' discharge problems without adding
any weight or volume or stability problems," he declared.
He suggested the following changes:
· Page 3, line 20 - change "protecting the
environment" to "safeguarding public health and
protecting important wildlife habitat"
· Page 3, line 21 - change "may" to "shall"
· Page 3, lines 21-24 - the sentence is too
permissive, it may preclude DEC from talking to
small ships about replacing or retrofitting their
systems because you could get a marine engineer
to say that there will be testing or re-
licensing.
· The technology is changing quickly and extending
the exemption until 2016 isn't necessary. Change
the date to 2010 and if an extension is needed at
that time then revisit the issue then.
· Page 6, lines 1-10 - Subsections (1)-(4) are
important and without specific identification,
they are referring to the donut holes. The small
cruise ships are targeting these areas because
they are wildlife rich, but they are also able to
dump their sewage there. Under this bill, there
is no opportunity to change that for 10-12 years.
He recommended that DEC reference some of the
sensitive areas in the bill and designate them
and stay 2-3 miles away when discharging.
SENATOR ELTON referred to the suggested change in wording on
page 3, line 20 and argued that "protecting the environment" is
broad language and the substitution might make it too specific
and more difficult for the department to regulate wastewater
discharge.
MR. THOMA said his interpretation was the opposite.
SENATOR ELTON contended that "protecting the environment" is a
large umbrella and "protecting important wildlife habitat" is a
smaller one and could be construed too specifically.
He then asked DEC about the suggestion that it might be possible
to shop for a marine engineer to receive an exclusion from
retrofitting.
MR. EASTMAN admitted to knowing little about Coast Guard
stability testing regulations, but he did know that retesting is
triggered by a 2 percent change in vessel displacement. That
being said, he pointed out that others knew more than he about
stability testing. He asserted that he certainly didn't know
whether it is possible to shop around for a marine architect who
would say that most any change would require new stability
testing.
SENATOR LINCOLN asked where the information sheet came from that
began, "Small Cruise Vessel Alternate Compliance Program is not
an exemption from environmental laws." She commented that point
(2) specifically refers to just 12 older vessels built before
2003.
CHAIR STEDMAN remarked that it is his understanding that this is
a specific list of the ships and ferries that were identified
earlier and under these rules the ability of bringing in a new
older vessel doesn't exist.
SENATOR LINCOLN pointed to page 2, line 8 of the bill and read
(b). She agreed with the Chair and interpreted that as including
just those existing 12 vessels, but she wanted to make sure that
was the case. She asked DEC to interpret the subsection.
MR. EASTMAN said the department didn't author the bill, but
"There is nothing in the bill that I see that would prohibit a
company from taking a vessel whose keel was laid before January
1, [indisc.] vessel not currently in Alaska's small cruise
vessel market and putting it into service in Alaska. There's
nothing in the bill that I'm aware of that would prohibit that."
SENATOR LINCOLN repeated, "So that portion, 'to continue to
operate in Alaska waters,' on page 2 - you wouldn't interpret it
that way?"
MR. EASTMAN said just in a broader sense, "not the specific
vessels would continue, but that older vessels generally could
continue to operate in Alaska waters."
SENATOR ELTON asked for his opinion as to whether the
"protecting the environment" terminology in Section 6 was too
vague because he thought it accommodated broader regulatory
authority than the suggested change.
MR. EASTMAN told Senator Elton he agreed with his comments and
interpretation.
SENATOR WAGONER noted Senator Lincoln's first question asking
who wrote the document hadn't been answered.
RAY GILESPIE, lobbyist representing the Small Cruise Vessel
Association, came forward and said he authored the document as
an outline for his clients to use in discussions with vendors.
When he stated that 12 older vessels would remain in the
program, he used that number because it was the number that was
given to him. However, "I don't know that that is precisely the
number that the department would say because I think from year
to year it might vary by one or two vessels," and "You'll notice
that's a parenthetical, it wasn't meant to limit - in my
estimation it wasn't intended to limit the scope of this
legislation."
SENATOR WAGONER asked him if that means it's just a working
document that he provided for his clients.
MR. GILESPIE replied that's correct, but in their discussions
with the department the issue was raised that if you were to
restrict other competitors from operating on the same basis,
significant anti trust questions would arise. The department
wasn't interested in that occurring.
SENATOR LINCOLN referred to page 2, line 8 and asked if he would
interpret the sentence to mean those existing vessels and not
new older vessels coming into Alaska.
MR. GILESPIE replied, "My interpretation of that, based on our
discussions with DEC is that new older vessels would be allowed
to come into the Alaska trade because the impact of interpreting
it the other way is you implicate some sort of restrictive anti
trust measure that limits your existing tourist vessels, and I
think it would probably raise some real significant issues in
terms of federal anti trust as well as state anti trust laws."
SENATOR LINCOLN asked whether the same anti trust issues would
arise if a cutoff date were inserted for older small vessels to
enter the Alaska market.
MR. GILESPIE thought there would be significant anti trust
implications if the number of small vessels were limited to
those existing in the trade.
SENATOR GARY STEVENS asked if it's true that older vessels have
to comply at some point and if so, where that is mentioned in
the bill.
MR. GILESPIE explained that under the legislation the Alternate
Compliance Program expires in 2016. "In the meantime, the vessel
operators intend to, and are required under this bill, submit
three year best management practice programs," and if there are
technology developments, the department can certainly require
them as a best management practice. So if a smaller wastewater
system were developed prior to 2016 that didn't implicate the 2
percent stability, the department would be empowered to require
that.
SENATOR ELTON said the 2 percent stability testing seems to draw
a rather bright line and he wondered whether Mr. Gilespie agreed
or did he think that you could shop for a surveyor that would
give you different opinions.
MR. GILESPIE said that Mr. Brockway or Mr. Jones were better
able to answer the question than he, but he thought the 2
percent figure came from Coast Guard regulation.
CHAIR STEDMAN asked whether Senator Elton wanted one of the men
to respond.
SENATOR ELTON replied he would like either of them to respond.
CHAIR STEDMAN asked Mr. Brockway to answer Senator Elton's
question.
MR. BROCKWAY said it would be difficult for a naval architect to
write a letter stating that you're into a situation of 2
percent. Providing further explanation he said that when a
modification is done, everything that's taken off the ship is
weighed then everything that is put on is weighed as well to
determine whether there is a net change. If the change
approaches 2 percent then the Coast Guard will require incline
and stability testing and additional buoyancy might be required.
There was no further testimony.
CHAIR STEDMAN asked Senator Lincoln if she had an amendment to
offer.
SENATOR LINCOLN offered the following amendment: On page 3,
lines 15 and 21 change the word "may" to "shall."
CHAIR STEDMAN asked if there was objection and Senator Elton
said he would object for the purpose of getting a reaction from
DEC.
MR. EASTMAN advised that the department had no objection to
changing may to shall on line 21 because it simply reflects
their plans, but he wasn't so sure on the change on line 15. AS
46.03.462 (e) offers one of three ways that a vessel can comply
with the cruise ship legislation. He continued to say:
A vessel, small or large, can comply by simply
complying with the standard terms - that would be 462
(b) [AS .03.462 (b)]. It can comply through submission
of something we call interim protective measures but
it's another form of alternative compliance so that
would be 462 (c) [AS 46.03.462 (c)]. And then (e) -
this new provision (e) [AS 46.03.462 (e)] would be a
third way that a vessel could comply. And by making
this a mandatory submission, I would I guess just want
to make sure that this recognizes that a vessel may
not choose 462 (e) at all, it may decide to go with
prior subsections. So it's the only reason I can see
to keep the permissive may in there.
SENATOR LINCOLN responded that it just says that the owner
operator shall submit a plan for alternative terms and
conditions for vessel discharges if a keel is laid before
January 1, 2004. "They may do all of these other things as well,
but in addition they would have to have a plan submitted to the
department." What would be the harm of making that "shall" she
asked.
CHAIR STEDMAN asked Mr. Eastman whether he wanted to respond.
MR. EASTMAN said he really didn't want to respond because he
really wasn't sure.
SENATOR ELTON reasoned that if the first may were changed to
shall and you decided to comply with either the first or second
option the use of "shall" would make it sound as though you
would still have to comply with the third alternative (e) as
well. "But if they're complying with the law by not asking for
an exemption, why should they have to apply for an alternative
way of discharging. I think that's what Dan was saying," he
said.
SENATOR GARY STEVENS asked Mr. Eastman to restate the three ways
to comply and point them out in the bill.
MR. EASTMAN told him that the bill doesn't specifically speak to
the first two options.
SENATOR GARY STEVENS asked him to restate the first two
compliance options.
MR. EASTMAN referred to the statute book and said:
The first one is simply to comply with the standard
terms and conditions established in the legislation.
The second is - and I'll point out this is in [AS]
46.03.462 (c) it says the department may - and there's
a may here not a mandatory shall - the department may
establish alternative terms and conditions. So the
second is an existing alternative terms and conditions
provision. There's a third (d) it says [AS] 46.03.462
(d) provides another alternative terms and conditions
provision again. And then there's the new (e), which
is the last alternative terms and conditions.
MR. EASTMAN questioned whether he confused everyone with that
explanation, but the idea is that there are three ways to
comply. His concern is that if you have a choice and one choice
says you shall submit a plan, which doesn't seem like a choice.
SENATOR WAGONER understood that any of the three ways are
acceptable to DEC so you don't want to force doing all three.
"Does that kind of sum it up," he asked.
MR. EASTMAN said it does then added, "Or at least certainly not
one of the three."
CHAIR STEDMAN asked Senator Lincoln if she wanted to modify her
amendment.
SENATOR LINCOLN said she would split the amendment. She motioned
to adopt amendment 1, which would be to change "may" to "shall"
on page 3, line 21.
CHAIR STEDMAN announced that the original amendment was off the
table and this was a modified version. He asked if there was
objection and there was none.
SENATOR LINCOLN said she wouldn't offer the second amendment at
that time. The bill was referred to the Resources Committee next
and she would do more research and perhaps offer it in that
committee. She said look at page 3, line 27 where it says, "A
plan submitted under (e)." That's the subsection that says they
"may" and that places a cutoff on December 31, 2015. She said,
"I want to make sure, if they have a choice and they're not
going to submit a plan and they go through these other two then
does that mean that they can extend beyond 2015?" She agreed
with Mr. Thoma and didn't want vessels exempted too many years
out.
MR. EASTMAN said, "In the current existing other ways to comply,
using alternative terms and conditions, there is no sunset
provisions.... But they are also more restrictive.... They set a
higher standard to execute compliance through alternative terms
and conditions." An example of that would be a request for
alternative terms and conditions because the vessel is using
experimental technology. The other options are more specific
than the new proposed subsection (e). He said, "I assume that
the Legislature decided they were specific enough that they
didn't see fit to actually end it on a date certain and was
comfortable in allowing it to continue basically forever."
CHAIR STEDMAN asked Senator Lincoln if that was satisfactory or
would she like to hear from DEC between now and the Resource
hearing.
SENATOR LINCOLN said, "I would love that."
CHAIR STEDMAN asked Mr. Eastman to clarify that with Senator
Lincoln's office.
SENATOR ELTON asked for leeway to expand on that request and ask
DEC to distribute their comments to the Resource Committee
regarding whether the language on page 3, lines 21-24 may
preclude DEC's ability to discuss replacement of MSD systems
with small ships.
SENATOR LINCOLN added one more request. She wanted the
department to review page 2, line 8 and comment on the federal
and state anti trust implications that were previously
discussed.
There was no further discussion.
CHAIR STEDMAN asked for a motion.
SENATOR WAGONER motioned to move CSSB 361(CRA) from committee
with individual recommendations and attached fiscal note. There
being no objection, it was so ordered.
CHAIR STEDMAN adjourned the meeting at 3:00 pm.
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