Legislature(2021 - 2022)SENATE FINANCE 532
04/20/2022 09:00 AM Senate FINANCE
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| Audio | Topic |
|---|---|
| Start | |
| SB121 | |
| SB199 | |
| SB243 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 199 | TELECONFERENCED | |
| += | SB 121 | TELECONFERENCED | |
| *+ | SB 243 | TELECONFERENCED | |
| + | TELECONFERENCED |
SENATE BILL NO. 121
"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."
9:05:59 AM
Co-Chair Bishop relayed that it was the second hearing for
SB 121. It was the committees intention to hear a
presentation from the Department of Environmental
Conservation (DEC) and then hear from the sponsor.
9:06:49 AM
TIFFANY LARSON, DIRECTOR, SPILL PREVENTION AND RESPONSE,
DEPARTMENT OF ENVIRONMENTAL CONSERVATION (via
teleconference), discussed SB 121. She defined that
polyfluoroalkyl substances (PFAS) was a family of 5,000 to
10,000 manmade chemical compounds that were carbon-bonded
to fluorine, which was one of the strongest bonds known to
exist. She continued that PFAS were water, oil, and heat
resistant, and water soluble. Additionally, PFAS persisted
in the environment and bioaccumulated and magnified. She
stated that while the department had some concerns with the
bill, DEC appreciated the sponsor Kiehl bringing attention
to the very important topic.
Ms. Larson discussed what DEC had done in the absence of
legislation to protect the environment, which included
listing PFAS and Perfluorooctanoic acid (PFOA) as hazardous
substances. She cited that in 2016, Alaska was one of the
first states to promulgate soil and groundwater cleanup
levels for two PFAS compounds. In 2019 the department
incorporated (through its technical memo) the use of a
lifetime health advisory at of 70 parts per trillion for
PFOA and PFOS, individually or combined. Since 2018, DEC
and the Department of Transportation and Public Facilities
(DOT) had been voluntarily testing drinking water wells at
airports required to use aqueous reforming foam. As part of
the effort, there were procedures developed for alternate
drinking water when needed.
Ms. Larson asserted that DEC was actively working on the
issue and had published a strategic road map in fall of the
previous year. There was a science advisory board reviewing
documents for PFAS and PFOA that would likely set a lower
lifetime health advisory. The draft report was expected to
be released the following May and was expected to reduce
the lifetime health advisory by an order of magnitude, at
or near 7 parts per trillion or lower.
Ms. Larson noted that in fall of 2022, the Environmental
Protection Agency (EPA) expected to issue a proposed
rulemaking for the National Primary Drinking Water Act
regulations for PFOA and PFAS, with the final rule in 2023.
In winter of the current year, the EPA expected to publish
its ambient water quality criteria and begin identifying
PFAS in categories versus regulating in a compound-by-
compound basis. She reiterated that there were 5,000 to
10,000 compounds in the PFAS family, so science was moving
towards categorical regulation. In the summer of 2023, the
EPA would have a final rulemaking, designating PFOA and
PFAS in the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), known also as
Superfund.
9:10:27 AM
JENNIFER CURRIE, CHIEF ASSISTANT ATTORNEY GENERAL,
DEPARTMENT OF LAW (via teleconference), wanted to discuss
four legal issues with the bill. She highlighted that there
were two distinct ways that DEC could identify a hazardous
substance under state law, by the definition of hazardous
substance or by listing a hazardous substance in its
promulgating regulation. She recounted that in instances
where DEC had found a substance as hazardous according to
definition and not by regulation, there had been
responsible parties that had tried to eliminate liability
by arguing the substance was not in regulation as
hazardous. She suggested that listing hazardous substances
in statute would lead to responsible parties trying to
avoid liability by claiming that a valid determination of
another hazardous substance must be in statute.
She discussed DEC's required disposal of PFAS as proposed
in the bill and cited the potential creation of
contaminated sites that could cause future state liability.
She mentioned the federal governments sovereign immunity
from lawsuits and the difficulty of obtaining a waiver. She
contended that any provision that named the federal
government under state statute would be subject to
challenge unless there was a valid waiver from Congress,
and it was likely the state would have to enter into costly
litigation to hold the federal government liable.
Ms. Currie continued her testimony. She pointed out that it
was unclear as to whether the bill declared PFAS substances
as hazardous substances under state law, as it was only
referred to as PFAS substances. She noted that DEC's
liability statues only imposed joint and several liability
upon the release of hazardous substances.
9:13:37 AM
Ms. Larson discussed challenges that existed with DEC in
implementing the bill. She mentioned the lack of a database
for the firefighting foam (containing PFAS) used in the
state. She mentioned potential liability associated with
disposal of PFAS. She asserted that there was no mechanism
for DEC to accept, handle, or dispose of any amount of
PFAS. She asserted that the bill would require DEC to apply
unnecessary and expensive administrative procedures without
changing the monitoring requirement. She stressed that DEC
had and used the authority to require responsible parties
to respond to PFAS contamination, and to regulate hazardous
substances. She thought to statutorily declare any
substance as a pollutant could jump ahead of the science,
and could also take the decision-making out of the hands of
DECs technical experts.
Ms. Larson relayed that the department understood the
publics concern regarding PFAS, and the desire to have
clear lines of safety. She continued that the scientific
community was still working to determine the critical
levels of PFAS in food, water, and bodies, and she
emphasized that the bill would not make the process happen
any faster.
Senator Wilson wondered if the committee could get Ms.
Larson's and Ms. Currie's testimony in writing.
Co-Chair Bishop requested the testimony in writing.
9:16:53 AM
Senator Olson thought the state was facing a significant
chemical issue. He remarked that he liked the fact that the
state had firefighting foams that were effective. He asked
Ms. Larson about any alternatives she would propose in
order to mitigate damage to future generations from the use
of PFAS. He referenced the past use of asbestos.
Ms. Larson thought Senator Olson was asking if there was an
alternative firefighting treatment substance.
Senator Olson asked what Ms. Larson's alternative was to
the proposed legislation.
Ms. Larson did not have an alternative to put forward, but
thought it was important that the state fell in line with
science and gave researchers the ability to find the best
way to regulate the substances. She reiterated that there
were somewhere between 5,000 and 10,000 compounds in the
PFAS family and contended that if the state continued to
address the issue on a compound-by-compound basis, the
conversation would last for generations. She asserted that
the scientific community was putting forward a concentrated
effort towards investigating the substances, and one of the
efforts was to categorize the substances into a category
based on research. She thought the best path forward was to
follow the science and allow the substances to be
categorized.
Senator Olson mentioned the sovereign immunity and
differences between the state and federal levels of
government. He asked Ms. Currie about her area of law
expertise.
Ms. Currie stated she had been practicing law in the
Department of Law's Environmental Section for 17 years,
prior to which she had practiced environmental law for 5
years and worked in litigation for approximately 7 years.
Senator Olson asked Ms. Currie what she perceived as the
best public policy pathway to protect the public from PFAS.
Ms. Currie was prepared to speak to legal issues but
declined to address questions related to policy and thought
the agency could better address the topic.
Senator Olson observed that people who had voiced
opposition to the bill had made it apparent that there was
no alternative other than changing statute. He emphasized
the importance of addressing the problem.
9:21:41 AM
Senator Wielechowski heard DEC say that PFAS was listed as
"hazardous" by the state. He asked what hazards the
department had found were associated with exposure to PFAS.
Ms. Larson relayed that once the department would take the
human health toxicological data and list PFAS as a
hazardous substance, it would allow the department to
regulate the substance and talk about ultimate disposal
options.
Senator Wielechowski relayed that he was trying to gauge
how hazardous the department believed PFAS to be and what
kind of human health problems exposure caused.
Ms. Larson did not have a list of potential health problems
caused by exposure to PFAS. She detailed that DEC used the
EPAs and Agency for Toxic Substances and Disease
Registrys assessments. She offered to provide a follow-up
in writing.
Senator Wielechowski assumed that the department had listed
PFAS as a hazardous substance and would be interested in
knowing what the department believed the hazards to be. He
mentioned the concern expressed over AS 46.033.45 (b) by
the Department of Law, in that the department could get
potentially involved in litigation with the federal
government. He asked what agencies of the federal
government required release of a fire-fighting substances
containing PFAS.
Ms. Larson believed the Federal Aviation Administration
(FAA) required testing of PFAS substances at federally
certified airports.
Senator Wilson asked about current state mapping of PFAS-
contaminated sites.
Ms. Larson stated that there was a map published on the DEC
website that identified all contaminated sites. Upon
reporting, the sites were added to the database, and there
was 100 percent mapping of known sites.
Senator Wilson asked about the sites that were not known
and asked for an estimation of the ratio of known to
unknown sites.
Ms. Larson could not speculate about unknown sites.
9:26:02 AM
SENATOR JESSE KIEHL, SPONSOR, appreciated the conversation
and DECs contribution to the discussion. He asserted that
DEC had made some contributions over the years and the
problems that the state had arose from two things. He
asserted that the levels that DEC had set (for two
chemicals only) were set at a much higher level than was
safe. He agreed with a previous testifier from DEC who
testified that the best was to protect health was to list
thousands of the chemicals by class at lower levels, but
the bill did not do so. He emphasized that the research was
abundantly clear regarding PFAS substances, and there were
still some questions about a class. The bill involved
substances about which there was no question.
Senator Kiehl thought it was important to note that nothing
in the bill would prevent DEC from setting lower limits,
nor from regulating classes of chemicals.
Co-Chair Bishop thought he had heard Ms. Larson say that by
May it appeared the level would go from 70 parts per
million to 7 parts per million.
Senator Kiehl deferred to DEC in predicting what the EPA
would do. He noted that the bill proposed to set limits for
the two substances and 8 parts per million and 16 parts per
million as the highest amounts the state could allow. He
cited that research showed with even more risk the limits
could go lower.
Senator Kiehl objected to DEC's notions that the
legislature should never declare anything hazardous by
statute, which he thought the legislature did all the time.
He cited that the DEC statutes declared crude oil (in
uncontrolled release the environment), DDT, and other
pesticides as hazardous. He emphasized that the bill did
not propose a new or novel approach. He was sure that
potentially responsible parties might come to court with an
argument about other pollutants as the Department of Law
had suggested. He thought the department would also say
that the arguments had been unsuccessful in the past. He
deferred to the department regarding the history of
litigation.
9:30:15 AM
Senator Kiehl addressed the question of whether the bill
should speak to federal agencies that required the releases
being jointly and severally liable. He noted that the
subject had been vigorously discussed in the Senate
Resources Committee, and members of the committee had felt
strongly that the party that required spilling of the
substance into the environment should share joint and
several liability. The provision did not reduce the states
ability to recover the costs of clean drinking water for
Alaskans from other parties. He referenced the committee
addressing lawsuits and emphasized that the provision in SB
121 was not significantly different than many things the
legislature had done in challenging wrongdoing by the
federal government.
Senator Kiehl summarized that there were other important
provisions in the bill that would not be solved when the
EPA got around to a more protective health standard. He
mentioned protection for local fire departments and their
liability, and the phase-out for the oil and gas industry.
He referenced Senator Olson's remarks about safe
replacements for fire-fighting foams for everything save
for the oil and gas industry.
Senator Kiehl reminded that the bill gave the fire marshal
the ability to only trigger the firefighting foam phase-out
when there was a safe alternative available. He discussed
the up to 25 gallons of substance take-back and provide a
way for small communities to get rid of the foam. He
emphasized that the state had a lot of PFAS foam. He
mentioned the large amounts of PFAS that DEC had warehoused
at airports.
Co-Chair Bishop set an amendment deadline of Friday April
22, at five oclock.
SB 121 was HEARD and HELD in committee for further
consideration.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 121 Support Szczepanski PFAS.pdf |
SFIN 4/20/2022 9:00:00 AM |
SB 121 |
| SB 121 Support Sylvester PFAS.pdf |
SFIN 4/20/2022 9:00:00 AM |
SB 121 |
| SB 121 Support Miller.pdf |
SFIN 4/20/2022 9:00:00 AM |
SB 121 |
| SB 121 ACC testimony on SB 121 - April 12.pdf |
SFIN 4/20/2022 9:00:00 AM |
SB 121 |
| SB 121 Support PWSRCAC.pdf |
SFIN 4/20/2022 9:00:00 AM |
SB 121 |
| SB 243 Sectional Analysis ver. B 4.19.22.pdf |
SFIN 4/20/2022 9:00:00 AM |
SB 243 |
| SB 243 Supporting Document - AEA PCE Analysis from 500 to750.pdf |
SFIN 4/20/2022 9:00:00 AM |
SB 243 |
| SB 199 SFIN Fiscal Modeling Presentation 4-20-22 UPDATED.pdf |
SFIN 4/20/2022 9:00:00 AM |
SB 199 |