Legislature(1997 - 1998)
02/03/1997 02:10 PM Senate JUD
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* first hearing in first committee of referral
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SENATE JUDICIARY COMMITTEE
February 3, 1997
2:10 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chair
Senator Drue Pearce, Vice-chair
Senator Mike Miller
Senator Sean Parnell
Senator Johnny Ellis
MEMBERS ABSENT
None
COMMITTEE CALENDAR
SENATE BILL NO. 39
"An Act relating to hazardous chemicals, hazardous materials, and
hazardous waste."
HEARD AND HELD
PREVIOUS SENATE COMMITTEE ACTION
SB 39 - No previous Senate committee action to report.
WITNESS REGISTER
Senator Loren Leman
Alaska State Capitol
Juneau, Alaska 99801-1182
POSITION STATEMENT: Sponsor of SB 39
Marie Sansone
Assistant Attorney General
Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Answered questions on SB 39
Chris Kennedy
Assistant Attorney General
Department of Law
1031 W 4th Ave., Suite 200
Anchorage, AK 99501-1994
POSITION STATEMENT: Commented on Sections 1 and 14 of SB 39
Penny Goodstein
ARCO
P.O. Box 100360
Anchorage, AK 99510
POSITION STATEMENT: Supports SB 39
Chet Weger
Assistant State Fire Marshall
Department of Public Safety
5700 E. Tudor Rd.
Anchorage, AK 99507-1225
POSITION STATEMENT: Supports SB 39
Rita Venta
Anchorage Fire Department
1301 E 80th Ave.
Anchorage, AK 99518
POSITION STATEMENT: Supports SB 39
Gale Foster
Inspector
Anchorage Fire Department
1301 E 80th Ave.
Anchorage, AK 99518
POSITION STATEMENT: Commented on SB 39
ACTION NARRATIVE
TAPE 97-4, SIDE A
Number 000
DUE TO TRANSMISSION DIFFICULTIES, NO TAPE IS AVAILABLE FOR THIS
MEETING.
SB 39 HAZARDOUS CHEMICALS, MATERIALS, AND WASTE
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 2:10 p.m. Senators Taylor, Miller and Parnell were
present. The first order of business before the committee was SB
39.
SENATOR LOREN LEMAN , sponsor of SB 39, gave the following overview.
Businesses are currently required to report virtually the same
information about hazardous chemicals, materials and wastes in four
different formats to four different entities. SB 39 eliminates
three of those formats and one entity. It revises the quantities
of reportable materials to be consistent with recent changes to the
classification system in federal law. The elimination of
placarding will allow businesses to file reports using an
electronic format which should be easier and make the information
more readily accessible. Sections 1, 12, and 14 were included as
a response to the Toksook Bay lawsuit and protect the state from
strict liability for oil spills or other environmental releases.
CHAIRMAN TAYLOR noted there are two sectional analyses, dated
1/17/96 and 1/30/97.
Number 091
CHAIRMAN TAYLOR concluded, after a review of this issue last year,
Alaska to have the most convoluted, multi-layered system of
hazardous materials reporting requirements. The local emergency
planning committees (LEPCs), that comprise the first layer, are
required to have 17 members which makes group activities difficult
to coordinate. The entire structure appears extremely cumbersome
to use in the design of a prompt response system.
SENATOR LEMAN stated the committees can have up to 17 members, but
are not required to.
CHAIRMAN TAYLOR asked about the penalties for eliminating a
federally mandated program and referred to AS 11.04.046. That
statute provides that any person may commence a civil action
against the administrator of state provision (c) or may propose or
bring a civil action against the administrator, a state governor,
or a state emergency response commission for failure to provide a
mechanism for public availability of information. He assumed that
information to be the data sheets on chemical storage. Section (d)
allows a person to sue a state governor or state emergency response
commission for failure to respond to a request for Tier II
information within 120 days after receipt of a request.
SENATOR LEMAN explained the intent of SB 39 is not to eliminate
reporting, but to make the requirements as user friendly as
possible while continuing to protect the public's interest in
information required under federal law. The purpose of the LEPCs
is to have a plan in place so that when an emergency occurs, people
know how to respond quickly and appropriately. LEPCs are
responsible for the plans; the front-line work is often performed
under contract.
Number 185
CHAIRMAN TAYLOR remarked many plans have never even been approved
and many oil storage delivery businesses have created their own
response plans. He added the plans are not nearly as useful as the
people who are at the scene when an emergency occurs.
SENATOR LEMAN believed some of the information compiled by LEPCs is
useful to communities. Plans often include balloon modeling to
determine what areas are, and will be, affected and evacuation
procedures in case of a large scale chemical leak.
MARIE SANSONE , Assistant Attorney General, Department of Law,
submitted two amendments proposed by the Department of
Environmental Conservation. SB 39 eliminates the State Fire
Marshall's placarding program and redesigns the reporting
procedure. The amendments are technical in nature, and further
clarify which entities will be responsible for collecting and
distributing the compiled information.
SENATOR LEMAN agreed the amendments will correct drafting
oversights.
Number 293
SENATOR PARNELL moved to adopt Amendment #1 which reads:
Page 4, line 8:
Amend the section heading as follows:
Sec. 29.35.530. Duties of municipality [DIVISION OF
FIRE PREVENTION].
Page 4, line 8:
Following "(a) The":
Delete " Department of Environmental Conservation "
Insert "municipality"
Page 4, line 10:
Following "under AS 29.35.500"
Delete "or of a municipality"
Page 4, line 14:
Following "inventory forms"
Insert "approved by the Alaska State Emergency
Response Commission"
There being no objection, Amendment #1 was adopted.
SENATOR PARNELL moved to adopt Amendment #2, that reads:
Page 6, line 31 to page 7, line 1
Following "available for distribution":
Delete "the Department of Environmental
Conservation"
Insert "to municipalities"
There being no objection, Amendment #2 was adopted.
CHRIS KENNEDY , Assistant Attorney General, testified on Sections 1
and 14 of SB 39. Those sections are identical to an amendment
offered to similar legislation last year and were proposed by the
Department of Education as part of the Administration's response to
problems discovered by the Toksook Bay law suit. The law suit was
filed against the state by 500 plaintiffs after an oil spill
occurred on a former BIA school site. A permanent fuel pipe,
installed by the BIA, gave way shortly after the school was
transferred from BIA to state ownership. Historically, the state
and REAAs have strict and joint liability for 100 percent of any
damages from a spill of this kind, regardless of fault. Section 1
eliminates strict and joint liability for damages; however, the
state and REAAs would continue to be liable under common law for
negligence. Section 1 is aimed at the unique circumstance when the
state inherits schools with potential latent problems. Section 14
defines the applicability of Section 1, and establishes that it
only applies to future claims.
CHAIRMAN TAYLOR asked Mr. Kennedy if he supported those two
provisions. MR. KENNEDY replied that he did.
Number 341
PENNY GOODSTEIN , with ARCO Alaska, testified in strong support of
SB 39 because it helps streamline the inventory reporting process.
CHET WEGER , Assistant State Fire Marshall, testified in support of
SB 39. The current placarding program is not enforceable given
available resources. Over the past three years, only 15 sites have
been placarded; the majority did so voluntarily through Alyeska
Pipeline. The placarding program puts an added responsibility on
communities that serves no useful purpose in many instances. He
added the Soldotna Fire Department believes subsections (D) and (E)
in Section 9 conflict with the federal requirement to report highly
toxic substances, such as fertilizers, fumigants, and pesticides,
and should not be enacted.
CHAIRMAN TAYLOR stated Senator Leman's staff would check on
subsections (D) and (E), and thanked Mr. Weger for bringing the
issue to the committee's attention.
RITA VENTA , Anchorage Fire Department, testified in support of SB
39.
GALE FOSTER , inspector for the Anchorage Fire Department, expressed
concern with Section 5, lines 24 and 25, which eliminates the
requirement to report the storage of compressed gases. She asked
the committee to reconsider the elimination of that requirement, as
well as Section 9 (D) and (E), since the elimination of those
reporting requirements makes SB 39 less restrictive than federal
law.
CHAIRMAN TAYLOR repeated Senator Leman's staff will review those
sections to determine whether they conflict with federal law. He
did not think federal law requires reporting of compressed gas
inventories, in which case, SB 39 would be consistent with federal
law.
MR. WEGER asked for information about the amendments that were
adopted. CHAIRMAN TAYLOR informed teleconference participants the
amendments were submitted by the Department of Environmental
Conservation and were technical clean up amendments to make the
various provisions of SB 39 consistent.
CHAIRMAN TAYLOR announced his intention to have a committee
substitute prepared and distributed prior to the next hearing.
SENATOR LEMAN confirmed he would check into the requirement for
compressed gases, but clarified that SB 39 does not preclude
municipalities from requiring such reporting, it merely removes the
requirement from state law.
Number 455
SENATOR PARNELL asked representatives of the Department of Law to
describe the scope of the state's liability under SB 39. MR.
KENNEDY explained the state will remain liable for its own
negligence under common law, but only for the percent of damage it
is responsible for. MS. SANSONE agreed and noted AS 46.03.822
(page 1, line 10) is the strict liability statute. She added a
negligence action is more difficult to prove because one must
establish the state's responsibilities and it would be subject to
state discretionary immunity.
SENATOR PARNELL asked if the sovereign immunity principles would
still apply. MS. SANSONE replied affirmatively.
CHAIRMAN TAYLOR asked for details about the Toksook Bay oil spill.
MR. KENNEDY replied the fuel line that broke was about 30 years
old. The state took ownership of the property about one year
before the fuel line corroded. CHAIRMAN TAYLOR commented under
most proposals currently before the Legislature, the statute of
limitations would run out in 15 years so no one could be sued
anyway.
MR. KENNEDY explained the title transfer process also complicated
the lawsuit. The state settled and received some financial
concessions from the federal government.
CHAIRMAN TAYLOR adjourned the meeting at 2:43 p.m.
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