Legislature(1999 - 2000)
03/01/2000 03:15 PM Senate RES
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SENATE RESOURCES COMMITTEE
March 1, 2000
3:15 p.m.
MEMBERS PRESENT
Senator Rick Halford, Chairman
Senator Pete Kelly
Senator Jerry Mackie
Senator Lyda Green
Senator Sean Parnell
MEMBERS ABSENT
Senator Robin Taylor, Vice Chairman
Senator Georgianna Lincoln
COMMITTEE CALENDAR
SENATE BILL NO. 255
"An Act regarding best interest findings and land use permits
issued by the Department of Natural Resources; and providing for an
effective date."
-MOVED CSSB 255(RES) OUT OF COMMITTEE
SENATE BILL NO. 266
"An Act repealing the exemptions from state law relating to the
sale and use of TBT-based marine antifouling paints; and providing
for an effective date."
-MOVED CSSB 266(RES) OUT OF COMMITTEE
PREVIOUS SENATE COMMITTEE ACTION
SB 255 - See Resources Committee minutes dated 2/18/00 and 2/23/00.
SB 266 - No previous action to record.
WITNESS REGISTER
Mr. John Shively, Commissioner
Department Of Natural Resources
400 Willoughby Ave., 5th floor
Juneau, AK 99801
POSITION STATEMENT: Supported SB 255.
Ms. Annette Kreitzer
Aide to Senator Leman
Alaska State Capitol
Juneau, AK 99811
POSITION STATEMENT: Commented on SB 266.
Mr. John Hansen, President
North West Cruise Ship Association
No address provided
POSITION STATEMENT: Supported CSSB 266.
Dr. John Kelly
International Paint
Representative to IMO Committee
No address provided
POSITION STATEMENT: Supported CSSB 266.
Mr. Gershon Cohen
Haines, AK 99827
POSITION STATEMENT: Supported CSSB 266.
Captain Ed Page, Chief
Marine Safety
Environmental Protection
U.S. Coast Guard
Juneau, AK
POSITION STATEMENT: Supported CSSB 266.
Mr. Joe LeBeau
Alaska Center For the Environment
PO Box 872922
Wasilla AK 99687
POSITION STATEMENT: Supported CSSB 266.
ACTION NARRATIVE
TAPE 00-05, SIDE A
Number 001
SB 255-PUB.LAND PERMITS/HEALY-FAIRBANKS INTERTIE
CHAIRMAN HALFORD called the Senate Resources Committee meeting to
order at 3:15 and announced SB 255 to be up for consideration.
SENATOR PETE KELLY, sponsor, offered a proposed CS to address the
concerns expressed by committee members at a previous meeting about
the public notice Section 4(c). The proposed CS provides that if
the director determines, by evaluation of the nature and duration
of the intended use, that an easement or right-of-way issued under
this section will not be functionally revocable, the director shall
provide public notice before issuing the easement or right-of-way.
CHAIRMAN HALFORD asked if "functionally revocable" is the term the
court used.
SENATOR KELLY said that is correct.
SENATOR MACKIE asked if that Section complies with the
Constitution.
SENATOR KELLY responded yes.
CHAIRMAN HALFORD asked if that is the only change in the CS.
SENATOR KELLY indicated yes.
SENATOR LYDA GREEN moved to adopt the CS to SB 255, version H (1-
LS1245). There were no objections and it was so ordered.
Number 156
COMMISSIONER JOHN SHIVELY, Department of Natural Resources (DNR),
stated support for SB 255 and said the committee substitute is a
great improvement because of the public notice provisions, which
DNR would do anyway. It solves a problem because DNR interpreted
the law one way while the Supreme Court interpreted it in a
different way. The Supreme Court's interpretation would have
substantially increased DNR's workload by requiring best interest
findings for an undetermined number of decisions DNR makes on
temporary disposals, such as leases and right-of-way permits. The
law has been interpreted in the past the way this legislation
refines it and appropriate public notice is provided for.
CHAIRMAN HALFORD asked if it specifically regards the Intertie.
COMMISSIONER SHIVELY answered that, regarding the Intertie, DNR
actually used the federal EIS process because federal decisions
were made along with the State's decisions. DNR went through an
environmental assessment, an environmental impact study, and held
public hearings with the federal government. He held a public
hearing in Fairbanks, which was totally discretionary, so he
believes there was a fair amount of public notice. However, the
Supreme Court said DNR didn't issue a best interest finding.
SENATOR KELLY said he wanted it on the record that this bill
doesn't change the way DNR has done business in the past. If
anything, it enhances public notice.
COMMISSIONER SHIVELY added that the bill clarifies what DNR can do.
It gives DNR the discretion to use a best interest finding in
certain instances.
CHAIRMAN HALFORD commented that a best interest finding is not a
constitutional requirement but a public notice is.
COMMISSIONER SHIVELY said that is correct.
SENATOR MACKIE moved to pass CSSB 255(RES) from committee with
individual recommendations. There were no objections and it was so
ordered.
SB 266-MARINE ANTI-FOULING PAINTS
CHAIRMAN HALFORD announced SB 266 to be up for consideration and
said that Senator Leman had a proposed CS and an amendment.
SENATOR LEMAN remarked that on a complex bill like this, it's tough
to get it right the first time. He explained that SB 266 goes
hand-in-hand with 1987 legislation that banned the use of TBT
paints on vessels in Alaska. The 1987 legislation made exceptions
for vessels of the U.S. government, foreign vessels in state waters
fewer than 90 consecutive days, and vessels of 4,000 gross tons or
more. Over the past 13 years, research done by many, including the
Environmental Protection Agency (EPA), reconfirmed that TBT does
have an effect on shellfish and other marine life.
SENATOR LEMAN said he became aware of this state law in a Finance
subcommittee and decided it made sense to remove the exceptions for
the other vessels.
SENATOR LEMAN informed committee members that the International
Maritime Organization (IMO) is proposing to ban the use of TBT
paints beginning in 2003 and to totally eliminate them by 2008. SB
266, as originally introduced, had a slightly more aggressive
schedule than that. After working with people who will be affected
by the ban, he prepared a committee substitute that prohibits
painting or treating beginning in 2001. The bill contains an
effective date.
SENATOR MACKIE moved to adopt the proposed CSSB 266 (1LS1148\
version G). There were no objections and it was so ordered.
CHAIRMAN HALFORD asked if Senator Leman is aware of any opposition
to the legislation.
SENATOR LEMAN answered no, but concerns have been expressed about
scheduling and whether U.S. shipyards could queue up to do the
work. One other concern he heard is whether the EPA will allow TBT
paint to be removed from ships in some of the U.S. shipyards. If
not, ship owners will have to go to a foreign shipyard, which he
thinks is crazy since U.S. people should be allowed to do the work.
He believes this version of the bill will allow the work to take
place in an orderly fashion.
CHAIRMAN HALFORD asked if this bill requires the removal of TBT
based paint or whether it just says it cannot be reapplied.
SENATOR LEMAN answered that it cannot be reapplied. Another issue
that was raised is that some ship owners who have maintenance
scheduled may have already ordered the paint, which is why they
suggested an effective date of January 1, 2001. A ship could have
the TBT-based paint on a hull after that, but it couldn't be
reapplied.
CHAIRMAN HALFORD wondered if anyone has a large stock of TBT paint.
SENATOR LEMAN responded that paint suppliers have said they would
be happy to sell the alternative paint because they would make more
money. It doesn't last as long and they could sell more of it.
From what he can tell personally, the alternative paint is very
effective.
CHAIRMAN HALFORD asked what the IMO deadline was otherwise.
SENATOR LEMAN said the IMO proposed the year 2003 for banning the
reapplication and 2008 to eliminate it in its entirety. The ship
owners say they can live with the proposed IMO schedule.
Number 883
MS. ANNETTE KREITZER, staff to Senator Leman, clarified that one of
the problems has to do with the way the current law, AS
46.03.715(b), reads:
TBT-based marine antifouling paint need not be removed
from fishing gear or from a vessel or other item that was
painted or treated before December 1, 1987, but the
vessel gear or item may not be repainted or retreated
with TBT-based marine anti-fouling paint or coating.
The concern is with the way the bill was originally introduced. The
vessels that fit under the exemption might possibly be subject to
someone misconstruing the law to mean that they had been painted
after 1987. The original bill left a gap between 1987 and 2003
(the IMO phase-out date). Today she talked to John L. Sullivan,
ARCO Marine, who told her that many companies preorder the TBT
paint and, if the deadline is January 1, 2001, they would have the
opportunity to exhaust the supplies they have on hand. She also
spoke with Mr. Al Parish of Holland America, who said they could
also meet that deadline.
CHAIRMAN HALFORD asked if the existing exemption for aluminum
vessels is perpetual.
MS. KREITZER explained that it's perpetual under state law, but no
one knows what the IMO will do. Right now the IMO is proposing a
ban on everything on aluminum boats. Aluminum boats were exempted
because of galvanic corrosion. If you put a penny into an aluminum
boat, it will eat right through it, so copper-based antifouling
paints cannot be used. Aluminum boats typically have a very heavy
epoxy coating. Some people apply a copper-based anti-fouling paint
over that but paint experts say that is dangerous.
CHAIRMAN HALFORD asked if the aluminum exemption applies to
aircraft floats.
MS. KREITZER answered yes - in state law.
Number 1198
MR. JOHN HANSON, President, North West Cruise Ship Association
(NWCSA), stated support for CSSB 266. NWCSA represents eight
cruise lines that come to Alaska, largely from Vancouver. The
companies include: Holland America, Carnival, Norwegian Cruise
Lines, Princess Cruises, Celebrity Royal Caribbean, World Explorer,
and Crystal Cruises. These companies operate a total of 21 ships.
They operate in over 100 countries and, in North America alone,
they are in over 25 states and provinces. Most of the safety and
environmental protection standards are established by international
agreement. The IMO has deliberated extensively during the last few
years over the use of anti-fouling paint. Senator Leman's bill is
an informed affirmation of this commitment to replace TBT-based
paint. He has checked with most of his member lines and they are
comfortable with the dates proposed in the legislation.
Number 1351
DR. JOHN KELLY, International Paint, said International Paint is
the largest supplier of marine paint in the world. It supports SB
266. He is concerned about the IMO ban application date of 2003
because other commercial owners that have not been mentioned might
be affected by it.
CHAIRMAN HALFORD asked how effective other paints are compared to
TBT. He asked if TBT had a rating of ten, whether other coatings
now available have the same rating.
MR. KELLY said other coatings are now available that are not toxic
but are as effective. Those coatings are supplied to other parts
of the world. International Paint hopes to get them registered in
the near future with the U.S. EPA.
MR. GERSHON COHEN, a Haines resident, said he is Project Manager
for the Earth Island Institute. He thanked Senator Leman for this
legislation because it represents a very positive step toward the
continued protection of Alaska's marine ecosystems and the people
who depend upon them. Over the past several decades, a significant
amount of research has been conducted on TBT compounds and closely
related compounds. TBT was first developed and applied as
antifouling paint in the 1960s. It killed a broad spectrum of life
forms. It is very persistent and active at the nanogram level of a
billionth of a gram per liter. Organisms can accumulate TBT by
consuming food and water.
MR. COHEN gave the following history of problems associated with
TBT paint. In the 1970s, concerns about the toxin began to surface
when it was demonstrated to be almost instantly lethal to marine
fauna at doses of eight parts per billion. In the early 1980s, TBT
use on boats doing near-shore activities was implicated in the
crash of the French oyster market. Similar effects were soon
observed on the oyster industry in Great Britain. The French
quickly adopted national regulations banning the use of TBT on
boats less than 25 meters in length.
A broader prohibition for TBT use on small vessels was subsequently
implemented by the International Maritime Organizations. By the
mid-1980s, it had been demonstrated that TBT stimulated
testosterone production, causing a condition called "imposex"
whereby females began to take on male sexual characteristics. This
abnormal sexual development leads to the abortion of eggs in half
the females and, therefore, sterility for the species, which soon
disappears entirely from the location. Typical of many contaminants
possessing hormone disrupting capacity, genetic effects, as well as
immune and neurological impairments, have been recorded with TBT
exposure.
Recent research has clearly demonstrated that the impacts of TBT
and other compounds are not restricted to marine invertebrates.
Marine mammals and bird populations in Asia are documented to have
high levels of TBT. In recent studies in the Journal of
Environmental Science and Technology, published by the American
Chemical Society, high levels of TBT were found in the organs of
dead bottle-nosed dolphins stranded along the coast of Florida and
Georgia in 1997-98. Existing TBT prohibitions, which were intended
to focus on near shore impacts, were no longer believed to offer
adequate protection. Many species that feed almost exclusively in
deep sea areas, such as sperm whales, are demonstrating high levels
of TBT contamination also.
There is no reason to believe that people consuming contaminated
organisms are not being similarly affected. Given TBT's ability to
persist in bioaccumulates of the food chain and the fact that large
vessels applying TBT paints spend extensive periods of time in our
near shore waters, it is prudent for the protection of public
health, our marine environment, and our fisheries industries to
expand the prohibition of the use of TBT to all ships that ply
Alaskan waters.
Alternatives to TBT-based paints exist today. The U.S. Navy and
Coast Guard, the Alaska Ferry System, and Alaska's fishing fleet no
longer use TBT paints.
A Coast Guard representative recently informed him that it is
difficult, if not impossible, to find a shipyard in the U.S. that
will apply TBT paint today. He anticipates that the full banning
of TBT paint use in Alaska will stimulate paint manufacturers to
redouble their efforts to find new and better alternatives.
He asked the Committee to add a sunset clause to the bill that sets
a date by which all existing TBT residues are removed from ships
and properly disposed of, or that hulls be effectively sealed with
less toxic anti-fouling coatings following protocols approved by
either the EPA or Coast Guard.
Number 1647
CAPTAIN ED PAGE, U.S. Coast Guard, Juneau, testified that the Coast
Guard and Navy are already in compliance and don't use TBT paints.
In general, they are using copper-based paints and coverings that
are slippery so that organisms can't adhere to hulls. The Coast
Guard approaches any change in international shipping regulations
through the IMO for the sake of consistency and to ensure a level
playing field. The IMO is meeting next week on this very issue and
he expects it will make its law effective in 2003.
CHAIRMAN HALFORD asked if the IMO has not approved that provision
yet.
CAPTAIN PAGE said that is correct. He was not sure that the IMO
would act on it next week. One concern is that the "tramp"
industry, which doesn't regularly ply Alaska waters, may not get
the word that quickly. It might be more difficult for those vessel
owners to comply in time.
CHAIRMAN HALFORD asked how the enforcement would work.
CAPTAIN PAGE said the Coast Guard would enforce the law if it is
eventually adopted by the IMO. He encouraged the State to use an
enforcement regime similar to the one used by the IMO in which a
certificate of compliance is provided by a classification society
or the entity that oversees that vessel.
CHAIRMAN HALFORD asked how the State enforces the law now.
MS. KREITZER replied that DEC would enforce it.
CHAIRMAN HALFORD noted that DEC reported a zero fiscal note. He
asked if that implies DEC doesn't have to do it.
SENATOR LEMAN said it might imply that once the law is in place and
people know about it, TBT-based paints won't be used, and that DEC
expects very few exceptions.
CHAIRMAN HALFORD asked if Senator Leman has had any response from
DEC.
MS. KREITZER said when the bill was first introduced, she spoke
with Mr. David Rogers of DEC who said it did not.
SENATOR GREEN asked if it would be appropriate to wait for the IMO
to meet before taking action on this bill.
CHAIRMAN HALFORD said he didn't think waiting would hurt the bill's
chances if the IMO was going to meet in a week.
SENATOR LEMAN said the State has a more ambitious schedule than
what the IMO is proposing. He didn't think the IMO's actions would
affect what the committee did.
SENATOR PARNELL concurred with Senator Leman.
MR. JOE LEBEAU, Alaska Center for the Environment, expressed total
support for SB 266.
SENATOR PARNELL moved to pass CSSB 266(RES) from committee with
individual recommendations. There were no objections and it was so
ordered.
CHAIRMAN HALFORD adjourned the meeting at 3:55 p.m.
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