SENATE COMMUNITY & REGIONAL AFFAIRS January 13, 1994 9:01 a.m. MEMBERS PRESENT Senator Randy Phillips, Chairman Senator Robin Taylor, Vice Chairman Senator Loren Leman Senator Al Adams Senator Fred Zharoff MEMBERS ABSENT All members present COMMITTEE CALENDAR SENATE BILL NO. 203 "An Act requiring unified municipalities to provide police protection and law enforcement services; and providing for an effective date." SENATE BILL NO. 202 "An Act relating to the removal, appropriation, and purchase of state water by municipalities; and providing for an effective date." SENATE BILL NO. 35 "An Act providing immunity for the Alaska State Emergency Response Commission, the local emergency planning committees, the Hazardous Substance Spill Technology Review Council, and their members for official actions; and providing for an effective date." PREVIOUS SENATE COMMITTEE ACTION SB 203 - See Community & Regional Affairs minutes dated 11/3/93. SB 202 - No previous action to record. SB 35 - See Community & Regional Affairs minutes dated 2/23/93, and State Affairs minutes dated 11/29/93. WITNESS REGISTER John Cowdery Special Assistant to Mayor Fink, Municipality of Anchorage P.O. Box 196650 Anchorage, Alaska 99519-6650 POSITION STATEMENT: Supported SB 202. Jerry Gallagher Legislative Liaison for DNR Juneau, Alaska POSITION STATEMENT: No position on SB 202. Kevin Kochlein Chair of Mat-Su Borough LEPC 680 N. Seward Meridian Wasilla, Alaska 99654 POSITION STATEMENT: Supported SB 35. Ernest Meloche Chair of Ketchikan LEPC P.O. Box 6058 Ketchikan, Alaska 99901 POSITION STATEMENT: Supported SB 35. Robert Spencer Coordinator of Fairbanks LEPC P.O. Box 84747 Fairbanks, Alaska 99708 POSITION STATEMENT: Supported SB 35. Jim Studley Northern Southeastern LEPC Box 946 Haines, Alaska 99827 POSITION STATEMENT: Supported SB 35. Doug Welde Chair of Petersburg/Wrangell LEPC Box 75 Petersburg, Alaska 9983 POSITION STATEMENT: Supported SB 35. Bob Stewart Emergency Management Director Municipality of Anchorage POSITION STATEMENT: Supported SB 35. Michael Conway Division of Spill Containment & Response, DEC, Juneau, Alaska POSITION STATEMENT: Supported SB 35. Marie Sansone Assistant Attorney General Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 POSITION STATEMENT: Reviewed SB 35. Annette Krietzer Staff to Senator Leman State Capitol, Room 113 Juneau, Alaska 99801-1182 POSITION STATEMENT: Reviewed SB 35. ACTION NARRATIVE TAPE 94-2, SIDE A Number 001 The Senate Community & Regional Affairs Committee was called to order by Senator Randy Phillips, Chairman, at 9:01 a.m. He rescheduled SB 203 (MANDATORY MUNICIPAL POLICE SERVICES) for January 20th. Number 012 Chairman Randy Phillips introduced SB 202 (SALE OF STATE WATER TO MUNICIPALITIES) as the first order of business. SENATOR MILLER stated in his sponsor statement that SB 202 gives municipalities another mechanism to replace revenue. SENATOR LEMAN asked which municipalities have an ample supply of water and may be interested in selling. Senator Miller replied that they are mainly in Southeast Alaska. Number 065 JOHN COWDERY, representing the Municipality of Anchorage, discussed existing statutes and the changes SB 202 would make. He questioned if the conservation fee would generate enough revenues to cover a full operation. He urged passage of SB 202 to the next committee of referral. SENATOR ADAMS asked if the sale of water from the Municipality of Anchorage to cargo ships would increase costs. Mr. Cowdery said that at present there is a surplus of water, so there should be no increase. Number 135 SENATOR LEMAN questioned if the Municipality of Anchorage pays a conservation fee to the Department of Natural Resources (DNR). Mr. Cowdery stated that currently DNR's water division has not implemented any regulations to form the network for collecting any fees. Senator Leman said that this legislation is clarification of original intent. Number 190 SENATOR ZHAROFF asked what volume of excess water would be sold and the cost recovery. Mr. Cowdery said that some inquiries for large quantities of water had been made and the cost was unknown at this time. He believed that the sale and money of this water should go directly to the municipalities. Number 245 JERRY GALLAGHER, Legislative Liaison, Department of Natural Resources, explained that DNR is reviewing water fees and costs across the board, however DNR has no position regarding SB 202 yet. Number 264 SENATOR ADAMS inquired if Governor Hickel's proposed water pipeline would have any effect on SB 202. Mr. Cowdery stated it would have no effect. Number 272 JERRY GALLAGHER addressed the fiscal note and speculated a small net decrease in revenue to the state. Currently, under the water conservation fee, the state was not collecting anything because collecting regulations are not in place. Number 294 SENATOR ADAMS requested a fiscal note from the Department of Revenue. The bill with the fiscal note will be brought before the committee on Tuesday. SENATOR TAYLOR stated support of SB 202 by Ketchikan and Sitka. Number 318 CHAIRMAN RANDY PHILLIPS brought SB 35 (IMMUNITY FOR ACTIONS TAKEN UNDER AS 46.13) before the committee. SENATOR LEMAN reviewed his sponsor statement emphasizing that SB 35 will help clarify the law regarding immunity in emergency planning functions. Number 342 KEVIN KOCHLEIN, Chair of Local Emergency Planning Committee for the Mat-Su Borough, voiced support for SB 35 and urged rapid passage of SB 35. ERNEST MELOCHE, Chair of the Ketchikan LEPC and a founding member of the LEPC Association, supported SB 35. He pointed out the critical nature of providing blanket immunity. Number 395 ROBERT SPENCER, Coordinator of the Fairbanks LEPC, supported SB 35 and urged its passage. He expressed that people preforming coordination and administration duties for LEPCs who are not members of the LEPC or the state commission should be provided with some sort of community liability protection. JIM STUDLEY, Northern Southeast LEPC Emergency Planner, supported SB 35 and also recommended its passage. Number 430 DOUG WELDE, Chairman of the Petersburg/Wrangell LEPC, supported SB 35 and urged passage of SB 35 because without immunity the volunteer seats are difficult to fill. BOB STEWART, Emergency Management Director for the Municipality of Anchorage, LEPC and SERC member, noted that the bill will be an impetus to local governments because it eliminates the long-term liability concerns. He said that SB 35 will enhance overall state planning. He supported SB 35. SENATOR RANDY PHILLIPS requested the positions of the Chugiak Fire Department and the South Fork Fire Department regarding this bill. JEFF MORRISON, Director of Administrative and Support Services Division, Department of Military and Veteran Affairs, stated he was present for questions. Number 490 MICHAEL CONWAY, Department of Environmental Conservation (DEC), said that the Department supports SB 35. SENATOR TAYLOR questioned the circumstances for possible liability of individual volunteers without the state being also held responsible. He does not want to defend these volunteers and hold them harmless. MARIE SANSONE, Assistant Attorney General, Department of Law, confirmed that the possibility of liability is remote. The planning is no longer a discretionary act but rather a mandatory act. Failure to follow the Emergency Planning and Community Right to Know Act's requirements or gross negligence within those requirements could result in liability. She discussed the Indemnification Agreement. SENATOR TAYLOR said that the state already has a written agreement that will indemnify and defend those volunteers. He added that the legislation does not intend to provide immunity for gross negligence. Number 552 MARIE SANSONE agreed with Senator Taylor, but pointed out that the agreement in place was only temporary until legislation was enacted. She emphasized that indemnification binds future legislatures to make an appropriation which could be unconstitutional. SENATOR ZHAROFF asked if indemnification is only in effect if their is a spill and some coordinated effort is already in place. Marie Sansone responded that the Indemnity Agreement only covers planning for emergencies not response. The SERC and LEPCs are only responsible for planning. TAPE 94-2, SIDE B Number 580 MARIE SANSONE, in answer to Senator Zharoff, explained the last section of SB 35 and the protections built into the law. The last sentence recognizes that even if immunity were provided to these committees, the federal law is supreme. Number 570 SENATOR TAYLOR explained that federal law will not allow immunity to volunteers in certain situations, therefore there must be an ongoing agreement. He reiterated that SB 35 is covering only the planners, not those volunteers who execute the plans. Ms Sansone informed the committee that other immunity statutes deal with responders and municipal governments. Senator Taylor emphasized the need to address the whole problem and all those affected. Number 540 SENATOR LEMAN clarified that SB 35 identifies who cannot be sued and provides some immunity, but still leaves the state as an umbrella. MARIE SANSONE answered that SB 35 does not immunize the state, the state departments involved, the responder, or the local government. The victims would not be left without any remedies. SENATOR TAYLOR asserted that SB 35 does not provide for responders. He reiterated the need to address the whole problem. Ms. Sansome suggested looking at her memorandum for some existing responder liability statutes. SENATOR ZHAROFF asked if SB 35 could be expanded to include responders. Ms. Sansone suggested going through the statutes she cited in her opinion which do provide some protection for responders. Number 467 ANNETTE KRIETZER, staff to Senator Leman, said that many who testified were planners as well as responders. These people realize their liability as responders, however, they are concerned with the planning aspect. SENATOR ADAMS noted that there is no money from the State nor from the Response Fund. SENATOR TAYLOR asked for examples of liability suits and a clarification of the remoteness of such liability suits. Ms. Krietzer did not know either, but commented that the LEPCs do not like the odds whatever they are. SENATOR LEMAN moved that SB 35 with the attached fiscal note be passed out of committee with individual recommendations. Senator Adams objected, then removed his objection. Chairman Randy Phillips called for a voice vote on the motion. Senators Randy Phillips, Leman, and Taylor voted "Yea". Chairman Randy Phillips stated that the motion carried. There being no further business, the meeting adjourned at 10:10 a.m.