Legislature(2017 - 2018)BUTROVICH 205

02/16/2018 03:30 PM RESOURCES

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Bills Previously Heard/Scheduled: TELECONFERENCED
Moved CSSB 173(RES) Out of Committee
-- Testimony <Invitation Only> --
Moved CSSB 92(RES) Out of Committee
-- Testimony <Invitation Only> --
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE RESOURCES STANDING COMMITTEE                                                                             
                       February 16, 2018                                                                                        
                           3:32 p.m.                                                                                            
MEMBERS PRESENT                                                                                                               
Senator Cathy Giessel, Chair                                                                                                    
Senator John Coghill, Vice Chair                                                                                                
Senator Natasha von Imhof                                                                                                       
Senator Kevin Meyer                                                                                                             
Senator Click Bishop                                                                                                            
MEMBERS ABSENT                                                                                                                
Senator Bert Stedman                                                                                                            
Senator Bill Wielechowski                                                                                                       
COMMITTEE CALENDAR                                                                                                            
SENATE BILL NO. 173                                                                                                             
"An Act  relating to the liability  of a person or  the state for                                                               
the  release  of  certain  pesticides  during  application  on  a                                                               
utility pole."                                                                                                                  
     - MOVED CSSB 173(RES) OUT OF COMMITTEE                                                                                     
SENATE BILL NO. 92                                                                                                              
"An Act relating  to abandoned and derelict  vessels; relating to                                                               
the registration  of vessels; relating  to certificates  of title                                                               
for  vessels;  relating  to  the  duties  of  the  Department  of                                                               
Administration;  relating  to the  duties  of  the Department  of                                                               
Natural  Resources; establishing  the derelict  vessel prevention                                                               
program;  establishing  the  derelict vessel  prevention  program                                                               
fund; and providing for an effective date."                                                                                     
     - MOVED CSSB 92(RES) OUT OF COMMITTEE                                                                                      
PREVIOUS COMMITTEE ACTION                                                                                                     
BILL: SB 173                                                                                                                  
SHORT TITLE: LIABILITY: PESTICIDES & UTILITY POLES                                                                              
SPONSOR(s): SENATOR(s) MICCICHE                                                                                                 
02/02/18       (S)       READ THE FIRST TIME - REFERRALS                                                                        
02/02/18       (S)       RES                                                                                                    
02/12/18       (S)       RES AT 3:30 PM BUTROVICH 205                                                                           
02/12/18       (S)       Heard & Held                                                                                           
02/12/18       (S)       MINUTE(RES)                                                                                            
02/14/18       (S)       RES AT 3:30 PM BUTROVICH 205                                                                           
02/14/18       (S)       Heard & Held                                                                                           
02/14/18       (S)       MINUTE(RES)                                                                                            
02/16/18       (S)       RES AT 3:30 PM BUTROVICH 205                                                                           
BILL: SB  92                                                                                                                  
SHORT TITLE: VESSELS: REGISTRATION/TITLES; DERELICTS                                                                            
SPONSOR(s): SENATOR(s) MICCICHE                                                                                                 
03/10/17       (S)       READ THE FIRST TIME - REFERRALS                                                                        
03/10/17       (S)       RES, FIN                                                                                               
03/27/17       (S)       RES AT 3:30 PM BUTROVICH 205                                                                           
03/27/17       (S)       Heard & Held                                                                                           
03/27/17       (S)       MINUTE(RES)                                                                                            
03/31/17       (S)       RES AT 3:30 PM BUTROVICH 205                                                                           
03/31/17       (S)       Heard & Held                                                                                           
03/31/17       (S)       MINUTE(RES)                                                                                            
02/12/18       (S)       RES AT 3:30 PM BUTROVICH 205                                                                           
02/12/18       (S)       Scheduled but Not Heard                                                                                
02/14/18       (S)       RES AT 3:30 PM BUTROVICH 205                                                                           
02/14/18       (S)       Heard & Held                                                                                           
02/14/18       (S)       MINUTE(RES)                                                                                            
02/16/18       (S)       RES AT 3:30 PM BUTROVICH 205                                                                           
WITNESS REGISTER                                                                                                              
SENATOR MICCICHE                                                                                                                
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Sponsor of SB 173 and SB 92.                                                                              
ERIC FJELSTAD, Attorney                                                                                                         
Perkins Coie                                                                                                                    
Representing Homer Electric Association                                                                                         
Anchorage, Alaska                                                                                                               
POSITION STATEMENT: Answered questions on SB 173.                                                                             
EMILY NAUMAN, Attorney                                                                                                          
Division of Legislative Legal                                                                                                   
Legislative Affairs Agency                                                                                                      
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Answered questions on SB 173.                                                                             
KRISTIN RYAN, Director                                                                                                          
Division Spill Prevention and Response                                                                                          
Department of Environmental Conservation (DEC)                                                                                  
Anchorage, Alaska                                                                                                               
POSITION STATEMENT: Supported SB 173.                                                                                         
ACTION NARRATIVE                                                                                                              
3:32:13 PM                                                                                                                    
CHAIR  CATHY   GIESSEL  called  the  Senate   Resources  Standing                                                             
Committee meeting  to order at 3:32  p.m. Present at the  call to                                                               
order were Senators Coghill, Meyer,  Von Imhof, Bishop, and Chair                                                               
Giessel. Senators Wielechowski and Stedman were excused.                                                                        
          SB 173-LIABILITY: PESTICIDES & UTILITY POLES                                                                      
3:32:44 PM                                                                                                                    
CHAIR GIESSEL  announced consideration of SB  173 [CSSB 173(RES),                                                               
version  30-LS1332\D, was  before  the committee].  She said  the                                                               
bill  was heard  on Monday  at  which time  public testimony  was                                                               
opened  and closed.  It was  heard  again on  Wednesday when  the                                                               
committee  adopted a  committee substitute  (CS) and  had initial                                                               
discussion. No  amendments were submitted. Today  they would have                                                               
a final discussion and consider some legal questions.                                                                           
3:33:25 PM                                                                                                                    
SENATOR MICCICHE, Alaska State  Legislature, Juneau, Alaska, said                                                               
he wanted  to make sure  Alaskans were protected  from negligence                                                               
and gross negligence  [from pesticides on utility  poles] with SB                                                               
173. This bill is designed to  remove strict liability only for a                                                               
specific  reason [from  pesticides on  utility poles].  Other law                                                               
covers  regular liability,  public nuisance,  nuisance, trespass,                                                               
negligence, and gross negligence.                                                                                               
CHAIR GIESSEL  asked what liability  the utilities would  have or                                                               
if they are completely absolved.                                                                                                
ERIC  FJELSTAD,   Attorney,  Perkins  Coie,   representing  Homer                                                               
Electric Association, Anchorage, Alaska,  answered that this bill                                                               
only modifies  the strict liability  scheme in AS  46.03.822 that                                                               
is sometimes called the State  Super Fund Law. All other statutes                                                               
and regulations  that would apply  to this situation  continue to                                                               
be in force.                                                                                                                    
He said discussion at the  outset included whether all applicable                                                               
laws  should be  changed,  and  the answer  was  "no." This  just                                                               
modifies one  law, which is  the strict liability  scheme. Common                                                               
law and nuisance trespass are still in play.                                                                                    
3:35:40 PM                                                                                                                    
SENATOR  COGHILL asked  if contamination  is affecting  someone's                                                               
groundwater, are they saying there is no liability.                                                                             
MR.  FJELSTAD  answered  that they  are  saying  this  particular                                                               
statute  cannot be  used to  recover costs  or require  clean-up.                                                               
However, they are not saying there  isn't a full panoply of other                                                               
authorities  that DEC  and others  can avail  themselves of  like                                                               
water quality  standards and  various other  statutory provisions                                                               
in Title 46 that are not changed at all by this legislation.                                                                    
SENATOR COGHILL said  the question he wanted answered  is if this                                                               
pesticide is used, there is no liability, period.                                                                               
MR. FJELSTAD  replied there is  no liability under  this statute.                                                               
It's not  true that there  is no  liability, period. There  is no                                                               
liability under this statute to require clean-up costs.                                                                         
Focusing on two points, Mr. Fjelstad  said one is what the intent                                                               
of this  issue is. These  poles use pesticides that  are approved                                                               
by EPA and  applied. When the pesticide is  applied in accordance                                                               
with EPA  - a  key point -  EPA has made  a policy  decision that                                                               
that is  appropriate use: it's  common to  have a little  area of                                                               
contamination of the ground around  the pole. So, this focuses on                                                               
the  question of  whether  appropriate to  require  a utility  to                                                               
clean  up that  zone of  impact, which  might be  18 inches  out.                                                               
Testimony has indicated  that is not inexpensive. It  can cost up                                                               
to $30,000/pole.                                                                                                                
MR. FJELSTAD  said the  question has been  asked why  this hasn't                                                               
come up before  and the answer is positive: these  poles have not                                                               
been significant issues.  There aren't any examples  of a utility                                                               
pole  causing ground  contamination  or showing  up in  someone's                                                               
well in Alaska.                                                                                                                 
CHAIR GIESSEL  summarized that he  is saying the small  amount of                                                               
leaching doesn't create a super fund site.                                                                                      
MR. FJELSTAD said that was correct.                                                                                             
3:39:49 PM                                                                                                                    
SENATOR  BISHOP  said Fairbanks  has  contaminated  wells and  he                                                               
understands  what Mr.  Fjelstad is  saying, but  what if  a water                                                               
well had trace elements of Penta  in it, would those people still                                                               
have some recourse?                                                                                                             
MR. FJELSTAD  answered the  other tools in  the toolbox  - common                                                               
law, nuisance  and trespass -  are there and that  DEC absolutely                                                               
has recourse under common law.                                                                                                  
CHAIR GIESSEL  asked MS. Nauman, Legislative  Legal Attorney, who                                                               
drafted the bill if she agreed with that answer.                                                                                
3:41:01 PM                                                                                                                    
EMILY   NAUMAN,   Attorney,   Division  of   Legislative   Legal,                                                               
Legislative  Affairs Agency,  Alaska  State Legislature,  Juneau,                                                               
Alaska, answered yes, she agrees.                                                                                               
SENATOR COGHILL asked what other  tools outside of the Super Fund                                                               
Act would a liability issue follow under these pole conditions.                                                                 
3:42:01 PM                                                                                                                    
KRISTIN RYAN,  Director, Division Spill Prevention  and Response,                                                               
Department  of   Environmental  Conservation   (DEC),  Anchorage,                                                               
Alaska,  answered that  this legislation  would  say the  utility                                                               
company  is not  liable for  contamination or  leeching from  the                                                               
SENATOR COGHILL asked what the  middle ground is if liability was                                                               
found, because the Super Fund is pretty big hammer.                                                                             
MS. RYAN  replied that the  department recognizes  the situation:                                                               
if six inches of soil is  contaminated around a utility pole. But                                                               
if  contamination has  leaked further  and is  of a  more serious                                                               
nature, it's  nice to have this  tool in the toolbox  to say they                                                               
caused damage.                                                                                                                  
She said the department uses  discretion and only uses the hammer                                                               
when it  is needed.  They try  to work  with operators  with best                                                               
management practices and other methods  and don't need the hammer                                                               
in this situation.                                                                                                              
3:44:32 PM                                                                                                                    
SENATOR BISHOP asked  if she has a toxicology report  and when it                                                               
will be available.                                                                                                              
MS. RYAN  answered yes; some tests  are being done on  some poles                                                               
that  have been  moved on  the Kenai  Peninsula by  a DOTPF  road                                                               
project to see if there has  been any leeching onto wetlands. The                                                               
goal  for  that  work  is  to  help  the  department  draft  best                                                               
management practices. The research is  on-going, and they hope to                                                               
have some results by the end of March.                                                                                          
SENATOR BISHOP asked  if they have baseline data to  say there is                                                               
a real problem.                                                                                                                 
MS.  RYAN responded  that  some  data was  taken  from the  Kenai                                                               
Wildlife Refuge  that started  this conversation,  but it  was an                                                               
unscientific  process  and  no significant  event  is  triggering                                                               
concern at the moment.                                                                                                          
3:46:34 PM                                                                                                                    
CHAIR  GIESSEL asked  how long  this pesticide  has been  used to                                                               
treat poles in Alaska.                                                                                                          
MS. RYAN  replied Penta  has been  approved for  this use  by the                                                               
Environmental Protection  Agency (EPA)  at least since  2008. She                                                               
added that some  committee members wanted to  know the difference                                                               
between Penta and  creosote. The EPA still allows  Creosote to be                                                               
used, but  they encourage  using Penta instead  for a  variety of                                                               
reasons, the main one being  safety of utility workers; Creosote-                                                               
covered poles are slippery and  cause injuries. Penta tends to be                                                               
a drier inhibitor of growth that is being used all over the U.S.                                                                
3:47:59 PM                                                                                                                    
CHAIR   GIESSEL  asked   if  the   Department  of   Environmental                                                               
Conservation (DEC) is the agency  that tests and approves on-site                                                               
water wells for homes.                                                                                                          
MS. RYAN answered that the  Department of Natural Resources (DNR)                                                               
provides water use  rights; the DEC protects  and approves public                                                               
water systems,  which are defined as  being used by 25  people or                                                               
3:48:34 PM                                                                                                                    
CHAIR  GIESSEL asked  if Penta  had shown  up in  any of  the DEC                                                               
tests from these wells.                                                                                                         
MS. RYAN answered no.                                                                                                           
SENATOR MICCICHE said this issue  isn't about calculation of risk                                                               
because  the U.S.  has  tens  of millions  of  treated poles  and                                                               
they've heard  a story about one  well in the Northeast  that may                                                               
have had  a problem. The  reality is that  all they are  doing is                                                               
changing the  level of state  liability to the  liability defined                                                               
under the  federal EPA, a  very conservative agency.  Language is                                                               
being changed  from not  observing the  federal law  exemption to                                                               
observing  it  under  the  Federal  Insecticide,  Fungicide,  and                                                               
Rodenticide Act (FIFRA).                                                                                                        
SENATOR  COGHILL  said the  line  of  questioning is  appropriate                                                               
because a strict exemption needs  context and that there is still                                                               
some recourse.                                                                                                                  
SENATOR MICCICHE said  he wanted to be able  to look constituents                                                               
in the  eye and tell them  that there is other  recourse if there                                                               
is that  minute nearly non-existent  probability that  Penta ever                                                               
transfers to a water table that it has to be evaluated.                                                                         
3:51:03 PM                                                                                                                    
SENATOR  COGHILL moved  to  report CSSB  173  (RES), version  30-                                                               
LS1332\D,  from  committee  with individual  recommendations  and                                                               
attached zero  fiscal note. There  were no objections and  it was                                                               
so ordered.                                                                                                                     
3:51:41 PM                                                                                                                    
At ease                                                                                                                         
         SB  92-VESSELS: REGISTRATION/TITLES; DERELICTS                                                                     
3:52:46 PM                                                                                                                    
CHAIR  GIESSEL called  the meeting  back to  order and  announced                                                               
consideration of  SB 92 [CSSB  92(RES), version  30-LS0481\J, was                                                               
before  the  committee].  This  is  its  third  hearing  in  this                                                               
committee  and   a  committee  substitute  was   adopted;  public                                                               
testimony  was concluded.  A deadline  for amendments  was for  5                                                               
p.m. yesterday and none were received.                                                                                          
SENATOR  MICCICHE, sponsor  of SB  92, Alaska  State Legislature,                                                               
Juneau, Alaska,  said this  bill originally  had two  pieces: one                                                               
was  identifying ownership  and responsibility  for a  vessel and                                                               
the other  was financial capacity  to be responsible.  Because of                                                               
difficulties  some  people  had,   they  decided  to  remove  the                                                               
insurance  requirement, but  more  work  needs to  be  done on  a                                                               
cradle-to-grave situation.                                                                                                      
He related that  one of his vessels he has  owned since 1985, and                                                               
when  he gets  to the  point  of moving  on to  a new  commercial                                                               
fishing vessel,  his boat will  probably be purchased  by someone                                                               
who is  in a different  stage of vessel  care and the  ability to                                                               
invest in that vessel. At some point  it could end up in a harbor                                                               
with a lot  of marine growth and will eventually  start sitting a                                                               
little bit lower in the water.                                                                                                  
Things happen  to vessels over time.  When it gets to  that point                                                               
harbor master  will have the  tools to  know who owns  the vessel                                                               
and to  be able to notify  him of problems. If  the problem isn't                                                               
dealt with,  the boat will get  pulled out of the  water while it                                                               
is still  afloat for just  a fraction of  the cost of  lifting it                                                               
from the bottom of the harbor or  a channel. This is a first step                                                               
in that process.                                                                                                                
SENATOR COGHILL asked  what the intent is of  the forfeiture rule                                                               
on page 5, line 25.                                                                                                             
SENATOR MICCICHE  replied that "or"  is because  the municipality                                                               
or state  has the flexibility to  realize taking a vessel  out of                                                               
the water  is the best option.  Hopefully, it never results  in a                                                               
misdemeanor or  a fine;  hopefully one can  arrive at  a solution                                                               
that avoids a  vessel being on the bottom. But  the state must be                                                               
given the opportunity to act and that includes up to forfeiture.                                                                
He  added that  sometimes a  boat owner  no longer  lives in  the                                                               
state and  forfeiture may be the  only way to remove  the vessel.                                                               
In other cases,  an owner may not be financially  capable of even                                                               
removing the  vessel from the  water. This measure  delivers some                                                               
options  and a  little  bit of  a  stick for  folks  that may  be                                                               
fighting to have the vessel dealt with.                                                                                         
SENATOR  COGHILL said  the testimony  from the  working group  on                                                               
this was "truly  impressive," and this is a  partial solution. He                                                               
didn't want to  go down the road  of tools that were  going to be                                                               
costlier to do or could be misused.                                                                                             
He  noted that  SB  92  has civil  penalties  and forfeiture  and                                                               
should probably should go to the Judiciary Committee.                                                                           
CHAIR  GIESSEL  reminded  the   committee  that  Senator  Coghill                                                               
brought up the  cost involved, and the fiscal note  is there from                                                               
DMV  and not  yet from  DNR. But  they heard  that one  vessel in                                                               
Dutch Hour  cost 250 hours of  DNR Division of Mining,  Land, and                                                               
Water staff time.                                                                                                               
4:00:55 PM                                                                                                                    
SENATOR  BISHOP  asked  if  a  vessel  is  deemed  worthy  to  be                                                               
preserved by the division, would that be honored.                                                                               
The DNR commissioner [in the audience] indicated yes.                                                                           
CHAIR GIESSEL noted three fiscal notes attached to the bill; one                                                                
from DNR, one from DEC, and one from the Division of Motor                                                                      
Vehicles (DMV).                                                                                                                 
SENATOR  COGHILL  moved  to  report  CSSB  92(RES),  version  30-                                                               
LS0481\J,  from  committee  with individual  recommendations  and                                                               
attached fiscal note(s).  There were no objections and  it was so                                                               
4:02:45 PM                                                                                                                    
CHAIR GIESSEL finding no further business to come before the                                                                    
committee, adjourned the Senate Resources Committee meeting at                                                                  
4:02 p.m.                                                                                                                       

Document Name Date/Time Subjects
Senate Resources - Agenda - 2 - 16 - 18.pdf SRES 2/16/2018 3:30:00 PM
SB173 - Supporting Document - Response from Homer Electric Assoc.pdf SRES 2/16/2018 3:30:00 PM
SB 173
SB173 - Comments - AK Comm Act on Toxics - 2 - 15 - 2018.pdf SRES 2/16/2018 3:30:00 PM
SB 173