Legislature(2017 - 2018)BUTROVICH 205
02/16/2018 03:30 PM Senate RESOURCES
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| 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 | |
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.
| 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 |