Legislature(2017 - 2018)BUTROVICH 205
02/16/2018 03:30 PM Senate RESOURCES
Note: the audio ![]()
and video ![]()
recordings are distinct records and are obtained from different sources. As such there may be key differences between the two. The audio recordings are captured by our records offices as the official record of the meeting and will have more accurate timestamps. Use the icons to switch between them.
| Audio | Topic |
|---|---|
| Start | |
| SB173 | |
| SB92 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | SB 173 | TELECONFERENCED | |
| += | SB 92 | TELECONFERENCED | |
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
pole.
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
more.
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
ordered.
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 |