Legislature(2021 - 2022)BARNES 124
04/27/2022 01:00 PM House RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| HB349 | |
| HB171 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 349 | TELECONFERENCED | |
| += | HB 171 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 171-PFAS USE & REMEDIATION; FIRE/WATER SAFETY
1:39:55 PM
CHAIR PATKOTAK announced that the final order of business would
be HOUSE BILL NO. 171, "An Act relating to pollutants; relating
to perfluoroalkyl and polyfluoroalkyl substances; relating to
the duties of the Department of Environmental Conservation;
relating to firefighting substances; relating to thermal
remediation of perfluoroalkyl and polyfluoroalkyl substance
contamination; and providing for an effective date."
CHAIR PATKOTAK stated that today's goal is to bring the bill up
to date based on the changes made in the Senate Resources
Standing Committee, and to take testimony from the sponsor and
affected agencies. He said the sponsor has asked that the
committee adopt a committee substitute (CS) to HB 171 that
matches the version currently in the works in the other body.
1:40:23 PM
REPRESENTATIVE HOPKINS moved to adopt the proposed CS for HB
171, Version 32-LS0788\I, Radford, 4/23/22 as the working
document. There being no objection, Version I was before the
committee.
1:40:59 PM
REPRESENTATIVE HANNAN, as prime sponsor of HB 171, explained
that the bill would set in statute health protective levels for
drinking water that limit perfluoroalkyl and polyfluoroalkyl
substances (PFAS) and perfluorooctanoic acid (PFOA) compounds.
The major change in the CS, she related, is removal of the blood
test collection and monitoring. She said the bill continues to
affirm that the polluter pays and that the liability for the
pollution remains with the polluter; exempt the oil and gas
industry; and exempt the use until there is an alternative that
is acceptable by the state fire marshal. She stated that
PFAS/PFOA aqueous film forming foam (AFFF) is the best
[firefighting response] for oil and gas fires because they burn
hot and long. Representative Hannan pointed out that most of
the PFAS/PFOA pollution in Alaska is not from actual fire
response but from required testing at airports. She said it is
a compound that does not dissipate and does not dilute, but it
does migrate in the water column, and it has migrated into
drinking water systems from the sites that were required to
deploy it. This chemical compound is very toxic to humans, she
continued, and contributes to low birth weight, thyroid disease,
and a list of cancers.
1:43:37 PM
TIMOTHY CLARK, Staff, Representative Sara Hannan, Alaska State
Legislature, on behalf of Representative Hannan, prime sponsor
of HB 171, explained the changes in Version I, the proposed
committee substitute for the bill. He stated that other than
the removal of the blood testing requirements, the only other
change is an updating of the effective date of the bill from
1/1/2022 to 1/1/2023.
1:44:07 PM
REPRESENTATIVE HOPKINS referred to the [North Pole Refinery]
where sulfolane pollution occurred under the refinery's builder
and original owner, but the pollution wasn't discovered until
after purchase of the refinery by another company and now there
have been many court cases over who is liable. He asked whether
the original polluter or the current landowner would be
responsible for the cleanup and remediation.
REPRESENTATIVE HANNAN replied that in that specific case the
lawyers will have to fight it out because she doesn't know.
REPRESENTATIVE HOPKINS posed a scenario in which a government
entity, such as the U.S. Department of Defense, is the polluter.
He asked whether the government entity would be the responsible
polluter.
REPRESENTATIVE HANNAN responded yes.
1:45:55 PM
REPRESENTATIVE RAUSCHER asked whether provisions in HB 171 would
dictate the answer to Representative Hopkins' question.
MR. CLARK answered that the foundational premise for liabilities
in HB 171 is the concept that the polluter pays. So, he said,
the liability would rest with the entity that caused the
discharge of the pollutant into the environment.
REPRESENTATIVE RAUSCHER asked who the polluter would be if the
federal government gave the okay for use at, say, an airport.
MR. CLARK replied that until the present, the Federal Aviation
Administration (FAA) required airports to train with PFAS-
bearing foams on a regular basis. He said it seems conceivable
to him that the FAA would be the liable entity.
1:47:49 PM
REPRESENTATIVE GILLHAM asked how the origin of PFAS pollution
can be determined. For example, he said, Juneau's dump is only
a mile or two from the airport. He further noted that sludge
washes into [Gastineau] Channel and asked where the liability
would be there.
REPRESENTATIVE HANNAN responded that the bill addresses PFAS in
foam. She said the bill does not address PFAS in things like
Gore-Tex jackets or containers for fast food, although
legislation in some states does address that. She related that
Juneau residents have been assured the landfill has a liner [to
prevent] leaching into the water table. She said Alaska's water
column issues are related to the dispersing of the foam and are
primarily associated with use at airports from mandated testing.
Regarding liability, she stated, what is being talked about is
the cleanup and providing clean drinking water. Representative
Hannan pointed out that the Juneau airport is in a saltwater
area, and it is not where Juneau gets its drinking water. The
community of Gustavus, she continued, has no community water
system and PFAS from the airport have leached into the water
table, polluting wells, including the school's well. For five
years now, she specified, the Department of Transportation and
Public Facilities (DOT&PF) has provided an alternative source of
drinking water to the citizens whose wells were polluted by the
PFAS plume from the Gustavus airport. Cleanup and mitigation
are ongoing, and DOT&PF and the Department of Environmental
Conservation (DEC) and DOT&PF have taken the responsibility for
it, she added.
1:51:57 PM
REPRESENTATIVE RAUSCHER referred to page 2, lines 18-27 of
Version I, which read:
Sec. 46.03.345. Liability for drinking water and
drinking water testing. (a) A person who causes a fire
that results in a release of a firefighting substance
containing a perfluoroalkyl substance or
polyfluoroalkyl substance is liable for the costs of
providing drinking water and drinking water testing
under AS 46.03.340. This subsection does not apply to
a release of a firefighting substance to extinguish a
fire in a residential building or motor vehicle.
(b) A person who extinguishes a fire by releasing
a firefighting substance that contains a
perfluoroalkyl substance of polyfluoroalkyl substance
is not liable for the costs of providing drinking
water and drinking water testing under AS 46.03.340 or
site cleanup under this chapter, AS 46.08, AS 46.09,
or another state law unless the firefighting substance
was released for training or testing purposes.
REPRESENTATIVE RAUSCHER noted that under subsection (a) the
person causing the fire is not the one who released the
substances, but that person is liable for what happens
afterward. He further noted that under subsection (b) the
person who extinguishes the fire by using such substances is not
liable for the cost of providing drinking water. He maintained
that those two provisions contradict each other somewhat.
MR. CLARK answered that when reference is made to a person in
that paragraph, most likely that would be a company because in
U.S. law companies are persons. He said the entity that caused
a fire where PFAS was used to put out that fire would be liable.
The next paragraph, he continued, is differentiating that fire
departments that are forced to use these substances to put out a
fire will not be held liable because of the circumstances in
which they found themselves.
1:54:15 PM
REPRESENTATIVE MCKAY posed an example of airplane engine failure
forcing [the pilot] to crash land on a Gustavus airport runway,
causing the plane to erupt in fire and firefighting trucks
responding by hitting the fire with PFAS because that is what
they have. That [the pilot] would be held liable seems a
stretch, he stated, because it wasn't intentional, it was an
accident. Liability per line 18, he argued, cannot be connected
to unintentional accidental acts.
1:56:24 PM
CATHY SCHLINGHEYDE, Staff, Senator Jesse Kiehl, Alaska State
Legislature, responded on behalf of Senator Kiehl, prime sponsor
of the companion bill, SB 121. She explained that the liability
provisions in these bills are designed to match the existing DEC
rules about liability, which means that with all these hazardous
substances the polluter pays, or the spiller pays, and that
includes accidental releases. So, she said, someone who spills
a carcinogen into the environment, even if it's an accident,
would still be liable for the cleanup. The responsible party
wouldn't have criminal liability because there is not that
intent, she continued, but the party would have civil
liabilities. Ms. Schlingheyde noted that the bill adds some
protections not existing in current law. For example, she
specified, under current law a volunteer fire department is
responsible when it uses foam that contains PFAS or sprays
anything else while fighting a fire. This will give them a
liability shield that they wouldn't otherwise have because there
is concern about the ability for volunteer fire departments and
others to be able to pay for this, she advised, but it doesn't
create a new type of liability.
1:57:54 PM
REPRESENTATIVE MCKAY offered his understanding that there are
PFAS at airports in Alaska right now.
MS. SCHLINGHEYDE answered yes.
REPRESENTATIVE MCKAY offered his understanding that the airport
fire department people are shielded from liability to use on a
fire the PFAS currently at the airports.
MS. SCHLINGHEYDE replied that this would give them a liability
shield if this were a fire but not for a training or for an
accidental release.
REPRESENTATIVE MCKAY stated it is unfair in a situation like his
aircraft example. The saving of human life is more important
than the groundwater, he maintained, and he doesn't have any
choice in this accidental situation that the firefighters are
using PFAS. He pointed out that as the pilot he can't say that
if he were to crash, the firefighters should let him burn to
death rather than using PFAS. It isn't right and doesn't make
sense, he added.
REPRESENTATIVE HANNAN responded by noting that Gustavus is a
second-class city that provides two examples. One example is
DOT&PF being held liable for the practice discharge of PFAS at
the airport. Now DOT&PF is having to provide drinking water.
The other example is the Gustavus Volunteer Fire Department
being held liable by DEC for using PFAS [to extinguish] a real
fire because currently volunteer fire departments are liable for
discharging PFAS. For four years DEC has pursued collecting
from the Gustavus volunteer fire department because it used a
fire truck donated by the state that was full of PFAS foam.
2:00:33 PM
CHAIR PATKOTAK announced that the committee would hear invited
testimony.
2:01:07 PM
CHRIS HLADICK provided invited testimony in support of HB 171.
He qualified that he is speaking on behalf of himself but that
he formerly was the Region 10 administrator for the
Environmental Protection Agency (EPA), the former commissioner
of the Department of Commerce, Community, and Economic
Development, and a city manager in the state for 27 years. He
said he is testifying in support of HB 171 because he thinks it
is a good first step.
MR. HLADICK advised that today's discussion has been a good
discussion about some of the complicating issues with PFAS,
called "forever chemicals" by the EPA. He related that the EPA
is in the process of developing a [maximum] contaminant level
(MCL) for drinking water that is supposed to be done by summer
2023. However, he pointed out, there is nothing to say that the
state can't set levels of its own and then adjust in the future
or keep at levels less than what the EPA develops. He offered
his belief that the EPA is working on 22 chemicals and noted
that the PFAS/PFOA family includes over 4,500 chemicals.
Liability is an issue, he affirmed, and working out the legal
interpretation on the liability issue is an important first step
in the process going forward.
2:03:54 PM
TIFFANY LARSON, Director, Division of Spill Prevention and
Response (SPAR), Department of Environmental Conservation (DEC),
provided invited testimony expressing DEC's concerns with HB
171. She noted that her written testimony provided in the
committee packet, titled "HB 171 Prepared Statements for House
Resources Committee April 27, 2022," contemplates the original
version of the bill, so she will skip the points that are no
longer valid. She explained that PFAS is a family of chemicals
with 5,000-10,000 man-made compounds of carbon bonded to
fluorine, one of the strongest bonds to exist. She said PFAS
chemicals are water, heat, and oil resistant, as well as water
soluble and persistent in the environment, and they
bioaccumulate. She stated that while DEC has concerns about the
content of HB 171, the department appreciates Representative
Hannan bringing attention to this important subject.
MS. LARSON addressed the question, "What has DEC done in the
absence of legislation to protect Alaskans and the environment?"
She said Alaska pro-actively listed perfluorooctanoic acid
(PFOA) and perfluorooctane sulfonate (PFOS) as hazardous
substances. In 2016, she related, Alaska was one of the first
states to promulgate soil and groundwater cleanup levels for two
PFAS compounds. In 2019, she stated, [DEC] incorporated through
its technical memorandum ("memo") the lifetime health advisory
(LHA) of 70 parts per trillion (ppt) for PFOA and PFOS,
individual or combined. This number, she explained, is the
threshold for when a responsible party (RP) is required to
provide alternative drinking water. Since 2018, she continued,
DEC and DOT&PF have been voluntarily testing drinking water
wells at the airports that have been required to use AFFF. As
part of that effort, DEC implemented expedited procedures to
sample wells that it suspected of contamination, Ms. Larson
specified, and where drinking water impacts were found,
alternative drinking water has been provided. She noted that
DEC also issued two state permits for thermal remediation that
are protective of human health and the environment consistent
with developed testing requirements for limits and emissions.
2:06:46 PM
MS. LARSON related that the EPA is actively working on the issue
of 5,000-10,000 compounds of PFAS by developing a strategic
roadmap, which EPA published in October 2021. Existing research
was reviewed through EPA's Science Advisory Board for PFOS and
PFOA, she said. The result of that review will be released in
May [2022], she continued, and DEC anticipates the review board
will set a lower LHA and DEC expects it to be reduced by an
order of magnitude - from 70 ppt down to 7 ppt or lower. It is
further expected, she advised, that in fall 2022 EPA will issue
a proposed rulemaking for National Primary Drinking Water Act
regulations, with a final rule promulgated in fall 2023. In
winter 2022, Ms. Larson added, the EPA is expected to publish
ambient water quality criteria. Plus, she specified, the EPA is
looking at identifying categories of PFAS to regulate on an
individual compound basis. She said DEC expects that by summer
2023 the EPA will have published a final rule for Comprehensive
Environmental Response, Compensation, and Liability Act
(CERCLA)("Superfund") designation for PFOA and PFOS. She
deferred to Ms. Jennifer Currie to provide testimony on behalf
of the Department of Law.
2:08:46 PM
JENNIFER CURRIE, Senior Assistant Attorney General, Statewide
Section Supervisor, Environmental Section, Department of Law
(DOL), provided invited testimony expressing DOL's concerns with
HB 171. She said there are two distinct ways that DEC can
identify a substance as hazardous: first, DEC can make a
determination based on the definition of hazardous substance
contained in statute; second, DEC can list the hazardous
substance in its promulgated regulations. She stated that when
DEC has decided that a substance especially an emerging
contaminant - is hazardous according to the definition only and
not by regulation, responsible properties have tried to evade
liability by improperly arguing that the determination is not
valid because it is not regulation.
MS. CURRIE advised that if HB 171 is enacted, there is concern
that liable parties will try to evade liability by arguing that
other emerging contaminants are non-hazardous substance if they
are not named in statute. She said the language of HB 171 is
unclear as to whether the bill is defining hazardous substances
under state law to include PFAS because it's referred to only as
a substance, and DEC liability statutes impose joint and several
liability only on releases of hazardous substances. She drew
attention to Sec. 46.03.350(c) of Version I that requires DEC to
accept certain amounts of PFAS each year, all of which must be
disposed of by DEC. She counseled that if at any point in the
future the PFAS disposal site has a release or receives a
determination that it is not appropriate for PFAS disposal, the
site will be deemed a contaminated site directly under state or
federal law. She specified that because DEC is the entity which
disposed of PFAS at the site, the state will be held jointly and
severally liable for addressing the contamination at that site.
MS. CURRIE pointed out that another issue is that Sec.
46.03.345(b) names the federal government as liable if it
requires the use of PFAS substance. She advised that any
provision that makes the federal government liable under a state
statute would be subject to challenge unless there is a valid
waiver of sovereign immunity. The United States, she said, has
sovereign immunity for lawsuits just as the state does. For a
waiver of sovereign immunity to be valid, she continued,
Congress must specify what it intends to waive, or courts will
hold the waiver as not occurred. To enforce .345(b), she
counseled, the state will likely have to enter cost of
litigation without a likelihood of success to attempt to hold
the federal government liable. She deferred to Ms. Larson to
continue with DEC's testimony.
2:12:15 PM
MS. LARSON resumed her testimony. She addressed the question,
"What challenges exist for DEC with implementing the bill as
written?" She said there is not currently an existing database
of where aqueous film forming foam (AFFF) has been used in
Alaska, so DEC would have to do the research to find it. She
noted that there is significant liability to the state and for
ultimate disposal. She related that there is not a current
mechanism by which DEC can accept, handle, or dispose of any
amount of PFAS containing firefighting substances. She pointed
out that the federal permitting for thermal remediation doesn't
change the monitoring requirements and only adds time and
expense for those permit applicants. She advised that the
minimal release language for thermal remediation requires
contract development of a numerical pollutant limit and special
procedures more stringent than federal requirements on a
timeline ahead of EPA and the science.
MS. LARSON concluded her testimony by stating that DEC has the
necessary authority, and has used it, to require responsible
parties to respond to PFAS contamination and to regulate
hazardous substances. To statutorily declare a substance as
hazardous could jump ahead of the science, she submitted, and
takes that decision making out of the hands of DEC's technical
staff. She said DEC understands the public's concern regarding
PFAS, and the desire for clear lines of what is safe and not
safe. However, she stated, the scientific community is still
working to determine the critical levels of PFAS in drinking
water and in human blood and bodies, and this bill doesn't make
that process happen any faster.
2:15:07 PM
REPRESENTATIVE MCKAY referred to the list of substances and
their cutoff concentrations on page 2, lines 8-16 of Version I.
He submitted that the measurement in parts per trillion (ppt) is
so small and exact that it is like passing a speed limit law of
64.3876 miles per hour, no more, no less. He argued that these
limits could change as the EPA and other agencies do more
testing and therefore suggested that DEC could set these numbers
independently of the legislature. He reiterated his belief that
assigning liability in the plane crash example he posed earlier
seems like a stretch. He posed another example where a forklift
driver accidentally puts a fork through a drum of aviation gas
causing it to ignite and said holding the forklift driver liable
for the groundwater contamination seems like a stretch.
2:18:28 PM
RANDY BATES, Director, Division of Water, Department of
Environmental Conservation (DEC), responded that these are very
specific drinking water provisions, which are different from
clean water provisions.
2:19:05 PM
MS. LARSON, regarding the numbers being very specific and akin
to writing a speed limit sign of [64.3876] miles per hour,
explained that the State of Alaska didn't originate the limits
in the bill and that the sponsor probably has a better awareness
of the origin of the limits. Regarding whether it is somehow
different from the way drinking water standards are established
in the orders of magnitude in the numbers, she advised that
those standards usually are prescriptive. She deferred to Ms.
Currie to address accidental liability.
2:20:12 PM
MS. CURRIE specified that environmental statutes for liability
don't take into account accidents; they are "no fault." She
said there is some confusion with the bill because Alaska's
liability statute for contamination is AS 46.03.822, which
establishes four different categories of people liable jointly
and separately, so each one is responsible for the fault all
themselves. For example, she continued, if two people were
liable and one went bankrupt, the one that was left would be
responsible for all of it that is joint and several liability.
She said the legislation establishes sort of two new categories
of liability but doesn't note whether they are jointly and
severally liable in conjunction with .822. Also, she noted, the
bill doesn't establish that PFAS are hazardous substances, which
is required for .822. She further noted that in an accident
like those posed by Representative McKay, the traditional
liability for contamination does not take into account the
person's mental state.
2:22:03 PM
REPRESENTATIVE RAUSCHER asked what data was used for the limits
in HB 171 given the [EPA] report won't be out until May [2022].
REPRESENTATIVE HANNAN replied that the limits came from the
"Michigan PFAS Science Advisory Working Group." Michigan is one
of the leading states [in addressing] PFAS pollution, she said,
and this research was shared when the bill was introduced. She
offered to provide the studies again.
REPRESENTATIVE RAUSCHER asked how long the study was and why it
was chosen.
REPRESENTATIVE HANNAN responded that Michigan is a leading state
establishing standards. She said the report is based in 2019
and she first introduced the bill in 2020.
REPRESENTATIVE RAUSCHER, regarding the [limit] of 25 gallons
annually from every entity, noted that the substances could be
coming from an oil company or a firefighting outfit. He asked
whether there is any idea about the volume that the state could
expect to be warehousing every year.
REPRESENTATIVE HANNAN answered, "We don't, ... it is limited to
25 per year." She related that DOT&PF has identified 34
airports at which there is PFAS aqueous foam. She offered her
belief that it would be better to move it from diverse locations
where a forklift driver might puncture a container to a more
centralized collection location for disposal or monitoring.
2:24:42 PM
REPRESENTATIVE RAUSCHER, regarding the 10,000 compounds, offered
his belief that these compounds are contained in many plastics.
He asked how contamination is going to be differentiated when
looking at the chemical makeup of thousands of compounds.
REPRESENTATIVE HANNAN replied that this legislation is focusing
on the PFAS and PFOA compounds used in AFFF, the firefighting
foam. The bill is not looking at plastics or Gore-Tex, she
explained, because there are no manufacturing sites in Alaska
for those.
REPRESENTATIVE RAUSCHER inquired whether the sponsor thinks that
the data in the forthcoming [EPA] report will be different or
the same.
REPRESENTATIVE HANNAN responded that she does not think the EPA
will have research that correlates to what Alaska's clean
drinking water standards are. She stated that the EPA must work
on a national level to address the hundreds of PFAS compounds.
The impetus for the bill, she continued, is because of waiting
on the EPA to address clean drinking water standards and the EPA
is not doing it in a fast enough way to address the safety,
security, and health protection of Alaskans. In response to
Chair Patkotak, she said drinking water standards are a viable
element to ensuring Alaskans are protected.
REPRESENTATIVE RAUSCHER offered his belief that the bill has
some retroactive provisions. This worries him, he said, because
the federal government has maintained levels at the airports, so
other entities have looked at that and have thought it okay to
utilize them.
2:27:26 PM
REPRESENTATIVE SCHRAGE asked whether he is correct in thinking
that the dumping into water of raw materials comprised of PFAS
chemicals, such as petroleum products, will cause instant
pollution whereas the dumping of plastics made of these same
PFAS chemicals will not instantly pollute the water.
MS. LARSON responded that the answer isn't simple as to whether
a small amount of petroleum being dumped into a well will result
in contamination. She explained that pollution is talked about
in terms of the product release relative to the environment to
which it is released. So, she said, when talking about these
limits and the concentrations in the type of environment, such
as soil, groundwater, and drinking water, it is specific to what
is being addressed. In this bill, she continued, the limit is
420 ppt for PFOS in drinking water, so anything below that is
okay.
REPRESENTATIVE SCHRAGE clarified that he is asking about the
pollution potential for products that have PFAS chemicals bound
into them as part of the production process versus firefighting
foams. He asked whether he is right that when bound into a
product one can be pretty sure that that is not the source of
PFAS contamination.
MS. LARSON confirmed that that is correct and said the principal
source of PFAS in groundwater in Alaska is from AFFF release.
2:30:36 PM
REPRESENTATIVE SCHRAGE posed a scenario in which he accidentally
knocks a barrel of a known contaminant out of his truck into a
lake. He asked whether he would be held liable under current
statute.
MS. CURRIE confirmed that he would be liable under AS 46.03.822.
CHAIR PATKOTAK remarked that he understands the idea of ensuring
that volunteer fire departments aren't liable but that the
liability now would be "kicked over" to somebody.
REPRESENTATIVE GILLHAM commented that the numbers are "mind-
boggling" because by his calculation someone would have to drink
42,000 gallons of water per day [to be in the PFAS danger zone].
2:33:54 PM
REPRESENTATIVE RAUSCHER noted that the bill's language states
"PFAS substances" and argued that if it was talking about AFFF
it would be listed that way. He said he is trying to get an
understanding of the generics versus absolutes and how that is
being looked at legally.
REPRESENTATIVE HANNAN replied that there are hundreds of PFAS
compounds and components, and the legislation is focusing on the
seven that are the primary components in AFFF, which is
firefighting foam.
REPRESENTATIVE RAUSCHER responded, "It doesn't say that."
REPRESENTATIVE HANNAN drew attention to page 2 of Version I and
stated that the seven substances listed [on lines 10-16 are the
seven primary components in AFFF]. She then explained that
Alaska laws are not written in colloquial speech, and with
hazardous substances "they've" asked to be very specific.
REPRESENTATIVE RAUSCHER said he will visit with Legislative
Legal Services to figure out why it is written the way it.
CHAIR PATKOTAK interjected that he understands the concerns
about opening the can of worms not specific to AFFF. He
observed that Section 1, Sec. 46.03.340, doesn't say anything
about firefighting substances until page 2, line 18. He said
there is a general understanding amongst committee members that
PFAS/PFOA is an issue, but it is a matter of differences in how
to find a way to address the issue, which will require work with
the bill sponsors in both bodies.
2:37:08 PM
REPRESENTATIVE SCHRAGE related that he has been thinking about
the scenario of someone causing a fire that requires the use of
PFAS firefighting foams. He said the scenario presented by
Representative McKay seems like a genuine concern, because as a
private pilot himself it would be a hard decision as to whether
to let the fire burn or put it out at the risk of permanently
polluting the drinking water of thousands of people. He
inquired about the intent and who was in mind when this
liability was envisioned. For example, he continued, he is
thinking about chemical production facilities that deal with
hazardous materials all the time and whether there are other
laws on the books requiring special liability insurance for
cleanups that would be massive.
MS. CURRIE responded that AS 46.03.822 establishes liability for
the release of hazardous substances. She said it does not have
this as a category of people that are liable; this is a new
category of people that are liable under state law. She stated
she doesn't know if other states have established the person who
causes the fire as a person liable either regular liability or
joint and several liability.
REPRESENTATIVE SCHRAGE said this will have to be worked on
offline.
CHAIR PATKOTAK stated there is plenty of work for committee
members to do offline together with either the bill sponsor or
the department to answer the committee's specific questions.
2:40:10 PM
REPRESENTATIVE MCKAY asked whether "these types of things" must
be shipped to the Lower 48 for proper disposal.
JASON OLDS, Acting Director, Division of Air Quality, Department
of Environmental Conservation (DEC), answered that [DEC] has
permitted two facilities that are currently capable of thermally
remediating PFAS. In further response regarding their location,
he said one facility is in Moose Creek near North Pole and the
other in Valdez.
CHAIR PATKOTAK inquired whether the PFAS/PFOA is eliminated when
incinerated or whether it becomes caught up in the filters,
thereby contaminating the filters.
MR. OLDS replied that it is 99.9999 percent destruction. He
said there are several treatment technologies in the process
where it would be captured or where other product pollutants are
captured. It's an industrial process, he continued, but a lot
of controls go on with that.
2:42:25 PM
REPRESENTATIVE CRONK asked whether water that is contaminated
with PFAS is contaminated forever.
MR. BATES responded that once PFAS are in the water they are in
the water column and persist. In what concentration they
persist is a different question, he added.
2:43:15 PM
REPRESENTATIVE RAUSCHER asked how PFAS arrive in Alaska and in
what form.
MS. LARSON answered that it comes up in the form of aqueous film
forming foam (AFFF), which is a firefighting substance. Apart
from that, she said, the family of PFAS compounds is ubiquitous
and comes in all kinds of forms, such as nonstick pans and
microwavable popcorn bags. The AFFF comes to Alaska by tug or
barge and all the rest comes via the common shipping pathways.
It is everywhere, she noted, and it is in every person in some
form or another.
2:44:44 PM
REPRESENTATIVE HANNAN provided closing comments. She said DEC
currently lists two of the PFAS/PFOA compounds as hazardous, but
[she] believes all seven in the bill are significantly toxic to
humans and exist in the water columns because of AFFF. She
related that DEC says it doesn't have a database of where it is
and where it has been used. But, she maintained, it is long
past due given at least two state agencies have been collecting
data since 2018. So, as the data is collected on where these
forever chemicals have been used, stored, or spilled, the
database needs to be built because whether it is addressed this
legislature or 10 years down the road, it is being found by the
EPA and state agencies that the exposure limits that create
toxic response go down. Representative Hannan agreed that the
small [concentrations] for significant health concern are mind
blowing but added that while not letting it into Alaska's water
system is best, [it is good] to know where it is and try to
remove it. One of the earliest PFAS contamination sites in
Alaska is in Representative Cronk's district, she stated, and it
was caused by the U.S. Department of Defense (DoD). The fish
from the lakes cannot be eaten due to PFAS in the water, she
continued, and while that is rare in Alaska, it isn't rare
across the U.S. She stressed that Alaska doesn't want to be
like the rest of the U.S., so Alaska cannot wait for federal EPA
decisions to be had because it will be years, not months given
that the EPA is dealing with hundreds of compounds and not just
AFFF. She urged that the state start with [these seven
substances] for the health and safety of Alaskans.
CHAIR PATKOTAK recounted that in preparing for today's meeting
there was discussion about a list that prioritized the safe
drinking water limits throughout Alaska into which AFFF was
leaked. He said he looks forward to that follow-up from the
department and making it available to all committee members in
preparation for the bill's next hearing.
CHAIR PATKOTAK announced that HB 171 was held over.