Legislature(2021 - 2022)GRUENBERG 120

03/22/2021 01:30 PM House JUDICIARY

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               HB  29-ELECTRIC UTILITY LIABILITY                                                                            
2:02:41 PM                                                                                                                    
CHAIR CLAMAN announced that the  final order of business would be                                                               
HOUSE BILL NO.  29, "An Act relating to liability  of an electric                                                               
utility  for   contact  between  vegetation  and   the  utility's                                                               
facilities; and relating to vegetation management plans."                                                                       
2:03:22 PM                                                                                                                    
REPRESENTATIVE  GEORGE  RAUSCHER,  Alaska State  Legislature,  as                                                               
prime sponsor,  introduced HB  29.   He stated  that HB  29 makes                                                               
clear that  an electric utility  would not  be held liable  for a                                                               
fire  caused   by  vegetation  outside  the   utility's  easement                                                               
contacting  electric  facilities.    He said  the  bill  requires                                                               
utilities  to   create,  adopt,   and  adhere  to   a  vegetation                                                               
management plan  that would  mitigate the  risks of  contact with                                                               
electrical facility's lines for  vegetation within their easement                                                               
and  right-of-way.   Ultimately,  he continued,  this bill  helps                                                               
protect utilities  from lawsuits  that arise from  things outside                                                               
of the  utilities' control and  thus helps protect  ratepayers by                                                               
keeping their costs down.                                                                                                       
2:04:35 PM                                                                                                                    
JESSE LOGAN, Staff, Representative  George Rauscher, Alaska State                                                               
Legislature,  presented   HB  29  on  behalf   of  Representative                                                               
Rauscher,  prime sponsor.   He  reiterated  that HB  29 helps  to                                                               
protect utility customers  by clarifying that the  utility is not                                                               
liable for fire  damage caused by vegetation  outside the utility                                                               
right-of-way and  outside the  utility's control.   He  said that                                                               
without  this  clarity, legal  liability  with  wildfire that  is                                                               
caused by vegetation contacting  electrical lines poses a serious                                                               
threat  to  Alaska's  electrical utilities  and  consequently  to                                                               
their  customers.   The  bill, he  explained,  stipulates that  a                                                               
utility will  be held liable for  damages that are the  result of                                                               
fire from  vegetation located entirely  within the boundary  of a                                                               
right-of-way  or  if   the  utility  fails  to   have  a  written                                                               
vegetation  management   plan  or   fails  to  comply   with  the                                                               
management plan.   He pointed  out that utilities  are prohibited                                                               
from  entering adjacent  properties  without the  consent of  the                                                               
property  owner,  yet they  can  still  be  held liable  for  the                                                               
damages that are the result  of the vegetation located where they                                                               
are prohibited to enter or manage.                                                                                              
MR. LOGAN drew attention to  the document in the committee packet                                                               
titled ["Alaska Electric Utility  Liability Bill (House Bill 29),                                                               
General  Information"], which  was produced  by the  Alaska Power                                                               
Association (APA).   He  cited an example  given in  the document                                                               
from  a  2015  case  where  litigation  was  brought  against  an                                                               
electrical cooperative.   In that instance, he  related, a spruce                                                               
tree located  beyond the  boundary of  the utility  easement fell                                                               
and contacted  the cooperative's distribution line,  resulting in                                                               
a wildfire.   Damaged  property owners sued  the utility  and the                                                               
case was  eventually settled,  he said,  but the  cooperative was                                                               
required  to  defend the  lawsuit.    Those  costs of  the  legal                                                               
defense  and  the settlement,  he  continued,  would most  likely                                                               
result in a rate increase to the cooperative customers.                                                                         
2:06:04 PM                                                                                                                    
MR.  LOGAN  reminded  committee  members that  one  of  the  main                                                               
missions of  an electric  utility is  to provide  reliable power.                                                               
It  is in  the best  interest of  the utility  and therefore  its                                                               
customers,  he  stated,  to  manage  vegetation  in  a  way  that                                                               
mitigates any  risks that  may occur.   He  related that  all the                                                               
utilities  he  is aware  of  have  adopted vegetation  management                                                               
plans as  one of  the many  safety policies.   As an  example, he                                                               
drew attention  to a draft  plan from the Copper  Valley Electric                                                               
Association (CVEA) provided in the  committee packet.  He pointed                                                               
out that these management plans  include such things as right-of-                                                               
way  maintenance schedules,  hazard tree  identification, removal                                                               
methods,  and notification.   He  said  he formerly  worked as  a                                                               
renewable energy  project manager  and safety  policy coordinator                                                               
for Kotzebue  Electric Association  and even thought  there isn't                                                               
one tree  within 20  miles of the  utility lines  the association                                                               
had  a  vegetation  management   plan,  illustrating  that  these                                                               
management plans are commonplace and taken seriously.                                                                           
MR. LOGAN concluded his presentation  by stating that without the                                                               
proposed  reforms  in HB  29  electric  utilities would  be  held                                                               
liable for  things outside  their control, or  they must  look at                                                               
other options that are prohibitively  expensive to consumers such                                                               
as burying  the electric lines  or widening the  easements, costs                                                               
that would be passed on to  consumers.  He stressed the bill does                                                               
not  give immunity  to  electric utilities,  instead  it sets  up                                                               
clear rules and expectations for vegetation management.                                                                         
2:08:26 PM                                                                                                                    
REPRESENTATIVE VANCE  referenced last year's wildfires  and asked                                                               
how  HB  29 would  impact  a  broader  scope  of fires,  how  the                                                               
utilities would need to respond,  and whether any liability would                                                               
be had versus a singular tree.                                                                                                  
2:09:28 PM                                                                                                                    
CRYSTAL  ENKVIST, Executive  Director,  Alaska Power  Association                                                               
(APA),  requested  that the  question  be  answered by  Mr.  Andy                                                               
Leman, APA's general counsel.                                                                                                   
2:09:40 PM                                                                                                                    
JOHN ANDREW  LEMAN, Attorney, Kemppel,  Huffman and  Ellis, P.C.,                                                               
General  Counsel, Alaska  Power Association  (APA), replied  that                                                               
the impact  of the bill is  dependent on the determined  cause of                                                               
the  fire.   "If  it  was  because  vegetation from  outside  the                                                               
easement contacted a  tree then this says ... the  utility is not                                                               
going to  be responsible for  that," he stated.   If the  fire is                                                               
inside the easement, he continued, then  a look would be taken at                                                               
the vegetation  management plan and whether  the utility followed                                                               
it.   He said he  isn't personally  familiar with the  details of                                                               
what  was  determined  to  be   the  cause  of  last  year's  big                                                               
wildfires, but  "you would  certainly be looking  at a  bill like                                                               
this  in a  situation where  you had  a fire  around the  utility                                                               
2:10:33 PM                                                                                                                    
REPRESENTATIVE VANCE recalled that the  during the Swan Lake Fire                                                               
the  Homer  Electric  Association's  transmission  line  received                                                               
considerable damage.   She inquired  whether the  association was                                                               
responsible  for  paying to  get  that  repaired or  whether  the                                                               
federal  government was  responsible because  it was  a federally                                                               
managed wildfire.                                                                                                               
2:12:07 PM                                                                                                                    
JIM  BUTLER, Attorney,  Baldwin &  Butler LLC,  Advisor, Incident                                                               
Response Group, Homer Electric  Association (HEA), responded that                                                               
the large Swan Lake Fire burned  throughout summer 2019.  He said                                                               
the fire  originated off  the [federal]  wildlife refuge  and was                                                               
started   by  lightening.     It   came  in   through  electrical                                                               
facilities, he stated, and HEA  worked closely with the different                                                               
fire  teams,  but  the  fire  did not  originate  because  of  an                                                               
electrical energized  line.  However,  he continued, HEA  has had                                                               
those in  the urban  interface context  and those  have typically                                                               
been  from either  a failure  to  an old  electrical facility  or                                                               
related to  vegetation that had  come in from outside  the right-                                                               
of-way into  the energized line.   "In  each of those  cases," he                                                               
related, "[HEA] worked  with forestry to do  an investigation and                                                               
resolve  any causal  factors  that might  lead  to assessment  of                                                               
suppression cause."                                                                                                             
2:13:18 PM                                                                                                                    
REPRESENTATIVE VANCE asked whether HEA  was held liable to repair                                                               
the lines that were destroyed through that fire.                                                                                
MR. BUTLER  answered that  the damaged  transmission line  in the                                                               
Swan Lake Fire carried electrical  power from the Kenai Peninsula                                                               
to the  Railbelt.   He said  other parties  were involved  in the                                                               
ownership administration of that line  and the repair cost to the                                                               
facility was  the responsibility  of the  utilities.   Of primary                                                               
concern,  he  explained, was  the  exposure  to suppression  cost                                                               
because those  costs can far  exceed any potential  coverage that                                                               
utilities might have.                                                                                                           
REPRESENTATIVE VANCE mused about whether  HB 29 would have helped                                                               
put repair liability  for the transmission line  onto the federal                                                               
government or whether she is conflating two different issues.                                                                   
CHAIR CLAMAN  asked whether repair  of electric lines  damaged by                                                               
lightening caused  fires is considered  a cost of  doing business                                                               
in the utility world.                                                                                                           
MR. BUTLER  replied yes,  in most cases  the utility  absorbs the                                                               
repair cost of a damaged facility if  it is through an act of God                                                               
where it is  hard to find a third party  that may be responsible,                                                               
which  has been  the case  on several  large fires  on the  Kenai                                                               
Peninsula.   In  instances where  a facility  is damaged  through                                                               
someone's  negligence, he  continued,  HEA looks  at options  for                                                               
pursuing a claim for third party liability.                                                                                     
2:16:05 PM                                                                                                                    
REPRESENTATIVE KREISS-TOMKINS, regarding  the cost of suppression                                                               
being of foremost  interest, surmised the cost  of suppression is                                                               
a part  of the liability  that electric cooperatives assume.   He                                                               
requested elaboration on that relationship.                                                                                     
MR.  LEMAN   responded  that  suppression   costs  are   a  civil                                                               
liability.  He  stated that in a situation where  it is something                                                               
outside  the  utility's control,  such  as  a tree  entering  the                                                               
easement  that causes  a  fire, the  utility  and its  ratepayers                                                               
should not be looked to for paying those suppression costs.                                                                     
2:17:39 PM                                                                                                                    
REPRESENTATIVE  KREISS-TOMKINS  noted  the bill  clarifies  where                                                               
liability ultimately exists.  He  asked whether there has been an                                                               
instance in Alaska in which a  utility was held liable for a fire                                                               
which  started  because  of  vegetation   that  was  outside  the                                                               
utility's legal right-of-way.                                                                                                   
MR. LEMAN  offered his belief  that there  has been at  least one                                                               
case involving  an electric utility from  which suppression costs                                                               
were sought,  but he is  unsure whether  that was a  tree matter.                                                               
He pointed  out that sometimes  when the state  seeks suppression                                                               
costs  it can  be quite  a  while after  the fire  occurred.   He                                                               
deferred to Mr.  Butler for further response as  to whether there                                                               
have been recent examples.                                                                                                      
MR. BUTLER  answered that the  instances of property  damage seem                                                               
to be more  likely than the ones for wildland  fire, but wildland                                                               
fire suppression  costs are growing.   He added that  the concept                                                               
of  utilities being  held responsible  for the  large suppression                                                               
costs of  wildland fire is a  national trend and he  thinks it is                                                               
just a matter of  time before it gets to Alaska.   In general, he                                                               
continued, the  utilities have tried to  do a good job.   He said                                                               
it's  whether  vegetation  from outside  the  utility  could  add                                                               
confusion  in seeking  the suppression  cost  for a  high-expense                                                               
fire or a  high-damage fire and how a utility  might be forced to                                                               
defend itself in protracted litigation to get to a resolution.                                                                  
2:20:56 PM                                                                                                                    
REPRESENTATIVE KREISS-TOMKINS said his takeaway  is that HB 29 is                                                               
mostly preemptive  and prophylactic, and  it is instances  in the                                                               
Lower 48 that  are prompting this legislation.   As presented, he                                                               
continued,  it does  seem  that electric  cooperatives  are in  a                                                               
powerless position that there be  vegetation outside their right-                                                               
of-way that  could potentially  foul their  lines or  cause fire.                                                               
He  stated  he  is  surprised that  the  rights-of-way  would  be                                                               
sufficiently narrow  in the first  place that  utilities couldn't                                                               
attend to  vegetation that is  problematic.   He asked how  it is                                                               
that this  situation is in place,  and nothing can be  done about                                                               
trees  outside the  legal right-of  way  that could  take down  a                                                               
utility's lines and cause wildfires.                                                                                            
MR.  BUTLER explained  a right-of-way  is a  portion of  property                                                               
that  allows the  utility to  run powerlines  through that  area.                                                               
Most  rights-of-way are  narrow, he  further explained,  anywhere                                                               
between 20  and 30 feet,  which means 15  feet on either  side of                                                               
the line.   Many trees  grow much taller  than the height  of the                                                               
facility, i.e., the powerline poles,  and can easily blow or fall                                                               
into that energized facility and cause  a fire, he continued.  In                                                               
many  cases  on private  property,  the  ability to  clean  those                                                               
rights-of-way  from the  ground  to the  sky  is limited  because                                                               
private property owners  must grant access and  most people don't                                                               
prefer to have  their trees trimmed or maintained over  time.  It                                                               
is  over time  that  is problematic,  he  noted, particularly  in                                                               
Alaska with the spruce bark beetle infestation.                                                                                 
2:23:51 PM                                                                                                                    
CHAIR CLAMAN  invited Mr. Leman  to respond to the  question from                                                               
Representative Kreiss-Tomkins.                                                                                                  
MR. LEMAN  agreed with Mr.  Butler.   He noted that  when utility                                                               
facilities are in  another easement, such as  a highway easement,                                                               
there  sometimes  isn't  much  extra  room to  begin  with.    In                                                               
dedicated  utility   easements,  such  as  municipal   or  public                                                               
easements,  the utility  may not  even  have a  choice about  the                                                               
width.  Regarding easements from  utility customers, he specified                                                               
that   most  electric   consumers   in  Alaska   are  served   by                                                               
cooperatives and most cooperatives require  a member to provide a                                                               
free easement so  service can be delivered.  He  pointed out that                                                               
having  those easements  on one's  private property  is a  burden                                                               
because the  trees get cut or  the property owner cannot  build a                                                               
house in the  easement or get permission to build  a deck or shed                                                               
within  the easement.   So,  he  continued, there  are some  good                                                               
reasons why easements  tend to be as narrow as  possible to allow                                                               
the utility to  install the facilities, get access  for them, and                                                               
get access for things like guy wires.                                                                                           
2:25:31 PM                                                                                                                    
REPRESENTATIVE EASTMAN  observed page 1  of the bill  talks about                                                               
civil  liability.    He inquired  whether  workers'  compensation                                                               
claims would, in this case, fall under that civil liability.                                                                    
MR.  LEMAN offered  his  belief this  would  not impact  workers'                                                               
compensation.   He  stated workers'  compensation  is a  separate                                                               
system of compensation for workplace  injuries that is apart from                                                               
Alaska's civil litigation system.                                                                                               
REPRESENTATIVE EASTMAN  requested Mr.  Leman to explain  how that                                                               
would not  be interpreted  at some  point down  the line  to deny                                                               
someone a workers' compensation claim.                                                                                          
MR. LEMAN responded  he doesn't believe that that  is the intent,                                                               
nor would it  be the outcome, of the civil  liability language in                                                               
HB 29 because  workers' compensation and the  obligation to carry                                                               
insurance  and  for insurers  to  pay  those claims  wouldn't  be                                                               
changed  by  the  bill.    He qualified  he  is  not  a  workers'                                                               
compensation lawyer, but said an  administrative system is set up                                                               
for adjudicating  workers' compensation  claims.  One  purpose of                                                               
workers'  compensation,  he  explained,   is  to  preclude  civil                                                               
liability  for employers  for workplace  injuries.   Part of  the                                                               
grand bargain of workers' compensation,  he continued, is that in                                                               
exchange for not  having to fight over causation  the worker gets                                                               
his or her workplace injuries taken care of.                                                                                    
2:28:03 PM                                                                                                                    
REPRESENTATIVE EASTMAN stated he would  like to hear from someone                                                               
on  the  workers  advocate  side  to  confirm  that  Mr.  Leman's                                                               
interpretation  is their  interpretation as  well.   He explained                                                               
that  his  question stems  from  having  been involved  with  and                                                               
hearing  of cases  where firefighters  have  incurred some  nasty                                                               
injuries  dealing  with  these  types  of  situations.    If  the                                                               
liability  is now  not on  the side  of the  utility, what  other                                                               
sidebars are  there other than following  a vegetation management                                                               
plan.  He pointed out that  a vegetation management plan could be                                                               
written that  is lacking  and only dealt  with grass  and ignored                                                               
trees and if  there is a fire dealing with  trees and that wasn't                                                               
part of their  management plan and by the way  he is reading this                                                               
language the  utility would be  off the  hook.  He  asked whether                                                               
there is somewhere else that  spells out all the different things                                                               
that must be included in that management plan.                                                                                  
MS. ENKVIST suggested that Mr.  Travis Million is the person best                                                               
able to  answer this question  because he provided  the committee                                                               
with CVEA's draft vegetation management plan.                                                                                   
2:30:06 PM                                                                                                                    
TRAVIS  MILLION, Chief  Executive  Officer  (CEO), Copper  Valley                                                               
Electric  Association (CVEA),  related that  the CVEA  plan gives                                                               
criteria regarding rotation of the  vegetation management and how                                                               
often, and  that this is based  on what the utility  sees prudent                                                               
for  the different  areas  it  serves.   He  said  the plan  also                                                               
establishes the  methods of clearing the  right-of-way, what type                                                               
of machine is  used, and the width of the  right-of-way.  That is                                                               
the  generalized criteria  that would  be covered  in a  standard                                                               
vegetation management plan,  he explained.  Some  plans will have                                                               
more detail than  others based on location  of the rights-of-way,                                                               
he added; for example, some areas  of Alaska don't have any trees                                                               
or vegetation that the utility needs to worry about.                                                                            
2:31:07 PM                                                                                                                    
REPRESENTATIVE  EASTMAN  posed a  scenario  in  which HB  29  has                                                               
passed and  a utility's  vegetation management  plan calls  for a                                                               
good look at trees every 20 years,  but a fire occurs in year 15.                                                               
He asked whether the utility would be covered.                                                                                  
MR. MILLION deferred to Mr. Leman to answer the question.                                                                       
CHAIR  CLAMAN added  to Representative  Eastman's question  about                                                               
the adequacy of  the plan.  He  asked whether it would  go to the                                                               
reasonableness of  the plan  itself if the  plan doesn't  seem to                                                               
have worked, which may or may  not come under a question of would                                                               
time and circumstances.                                                                                                         
MR.  LEMAN  answered, "Exactly."    Responding  further to  Chair                                                               
Claman, he stated HB 29 does  not include a set standard for what                                                               
would  go into  a vegetation  management plan  because there  are                                                               
such different circumstances  across the state.   For example, he                                                               
continued, there  may be  no vegetation  at all  or, if  there is                                                               
vegetation, then what  is the vegetation, how fast  does it grow,                                                               
and how  susceptible is it to  damage; so, it would  be difficult                                                               
to have a one-size-fits-all vegetation  management plan.  He said                                                               
that even without the protection that  is being offered by HB 29,                                                               
utilities  across  Alaska   already  have  vegetation  management                                                               
plans, including Kotzebue  where it's hard to come up  with a lot                                                               
of  vegetation  that could  contact  electrical  facilities.   He                                                               
explained  that utilities  already  have these  plans because  to                                                               
assure their operations they must.   He stated that no utility is                                                               
going to have  a plan that says  its plan is to have  no plan, or                                                               
that its  plan is to look  every 50 years, because  they wouldn't                                                               
be able  to operate.   The  utilities already  have all  kinds of                                                               
incentives  operationally   and  financially  to   protect  their                                                               
transmission  lines, he  noted.    He pointed  out  that even  if                                                               
utilities  or  cooperatives do  everything  that  they can  under                                                               
their plans  that were developed  to protect their  ratepayers or                                                               
member  owners, they  still can  be sued  by someone  saying they                                                               
were  not being  reasonable enough.   He  said that  tying it  to                                                               
these  vegetation management  plans  that  the utilities  already                                                               
have will provide  a clear standard that the  utilities and their                                                               
ratepayers can rely on.                                                                                                         
2:34:47 PM                                                                                                                    
REPRESENTATIVE   EASTMAN  inquired   how  the   committee  should                                                               
understand  the language  "entirely  within" that  is located  on                                                               
page 1, line 14.  He posed  a scenario of a stand-alone tree that                                                               
is entirely  within versus a  scenario of  a root system  that is                                                               
partly  within   and  further  inquired  about   the  meaning  of                                                               
"entirely within."                                                                                                              
MR.  LEMAN  replied  that  the   "entirely  within"  language  is                                                               
included because there is a  difference in how liability would be                                                               
evaluated  for something  the utility  could control,  vegetation                                                               
that is  within the easement,  and vegetation that is  outside of                                                               
the easement.   The idea,  he said, is  for situations such  as a                                                               
tree growing  partly inside and  partly outside the  easement and                                                               
whether it is  completely within the utility's  control given the                                                               
utility would  probably have to  work with the landowner  who may                                                               
or may not be willing to  cooperate.  From the perspective of the                                                               
utility,  the utility  would much  rather deal  with a  tree like                                                               
that, he  continued.   Utilities will trim  or remove  trees that                                                               
are outside the easement if the  utility thinks the tree is going                                                               
to  threaten   the  powerline,  he  stated,   but  that  requires                                                               
cooperation with the landowner that is not always there.                                                                        
2:37:09 PM                                                                                                                    
REPRESENTATIVE  KURKA  asked  whether  HB  29  would  affect  the                                                               
liability of  large property owners  like the State of  Alaska or                                                               
the federal  government regarding  stewardship of  the vegetation                                                               
on their  property; for  example, managing  dead trees  killed by                                                               
spruce bark beetles.                                                                                                            
MR. LEMAN  responded that  HB 29 is  a shield, not  a sword.   He                                                               
stated he doesn't  think it changes the situation one  way or the                                                               
other for  a utility  if the utility  thinks its  facilities have                                                               
been damaged by anyone, whether  it is someone crashing a vehicle                                                               
into a pole or someone causing a  fire.  He said the bill is just                                                               
about  what  happens when  there  is  a  tree  or other  form  of                                                               
vegetation that contacts a powerline.                                                                                           
REPRESENTATIVE KURKA inquired whether  it would be appropriate to                                                               
consider that in an amendment or  in terms of the consequences to                                                               
be consistent.                                                                                                                  
CHAIR CLAMAN  asked whether  Mr. Leman has  any opinion  about an                                                               
amendment  that  addresses  the liability  of  adjacent  property                                                               
owners,  whether   they  be  a   private  property  owner   or  a                                                               
governmental property owner.                                                                                                    
MR. LEMAN  answered that  it is an  interesting question,  but he                                                               
does not have an opinion at this time.                                                                                          
2:40:21 PM                                                                                                                    
REPRESENTATIVE  SNYDER  posed  a  scenario in  which  a  tree  is                                                               
growing on  the boundary  of the  easement or  is outside  of the                                                               
easement  and the  tree  has  a limb  that  is  growing into  the                                                               
easement.   She asked whether it  is correct that the  utility is                                                               
not allowed to remove that limb.                                                                                                
CHAIR  CLAMAN  requested  Mr.  Million  to  answer  the  question                                                               
because  CVEA   has  a  vegetation  clearance   plan  within  its                                                               
vegetation practices.                                                                                                           
MR. MILLION replied  that CVEA's easement or  right-of-way is, in                                                               
most  places, 30  feet wide  ground  to sky.   He  said CVEA  has                                                               
equipment that allows it to  stay within its right-of-way and mow                                                               
or cut  the trees  or cut  the limbs  growing into  the easement.                                                               
So, he continued,  if a tree outside the right-of-way  has a limb                                                               
coming inside  the right-of-way,  CVEA has the  means to  clip it                                                               
and that is how CVEA practices it within its utility.                                                                           
REPRESENTATIVE  SNYDER qualified  she  would not  suggest that  a                                                               
utility would  find any value  in not continuing the  practice of                                                               
removing  limbs that  cross into  [the easement].   However,  she                                                               
stated, it  seems the  bill's current language  that if  it's not                                                               
completely  within the  easement could  release the  utility from                                                               
liability should  the utility not  clear those limbs.   She asked                                                               
for comment on her interpretation of this possible loophole.                                                                    
MR. MILLION responded  that one of CVEA's main  drivers for being                                                               
an electric cooperative is reliable,  economic, and safe electric                                                               
services for  members.  Even  if there  was a small  loophole, he                                                               
said,  from  a  liability  standpoint that  could  affect  CVEA's                                                               
reliability to  its members.   So, he  continued, just  from good                                                               
utility  practice  CVEA would  be  clearing  those regardless  of                                                               
whether  there  was a  liability  loophole  just because  of  the                                                               
reliability of the electric service to its members.                                                                             
2:43:14 PM                                                                                                                    
REPRESENTATIVE  SNYDER,  regarding  who the  liability  might  be                                                               
shifted to  and its implications,  inquired about  the percentage                                                               
of the  different entities  that are  adjacent to  the easements,                                                               
such as the  State of Alaska, federal  government, and individual                                                               
2:43:56 PM                                                                                                                    
JOHN  BURNS, President  & Chief  Executive Officer  (CEO), Golden                                                               
Valley  Electric  Association (GVEA),  stated  that  there is  no                                                               
shifting of liability, the utilities  are not trying to avoid any                                                               
responsibility for  that which  the utilities  control.   He said                                                               
the clarification being  requested here is within  the context of                                                               
the right-of-way,  which is  the only area  that any  utility has                                                               
the authority to control.  He  pointed out that if a utility were                                                               
to arbitrarily go on to someone's property and expand its right-                                                                
of-way, the utility would be  subject to trespass and potentially                                                               
treble  damages under  state statute.   He  said the  legislation                                                               
seeks  to clarify  that  a utility  is not  liable  for trees  or                                                               
vegetation that  are outside of  its right-of-way that  fall into                                                               
the  utility's right-of-way.    He related  that  GVEA has  2,600                                                               
miles of  right-of-way easements and has  a vegetation management                                                               
plan under  which it  tries to  clear on a  five-year cycle  at a                                                               
cost of about  $3 million annually.  He pointed  out that weather                                                               
patterns have  changed, and Fairbanks  is now  experiencing heavy                                                               
winds,   freezing  rains   in  November   and  December,   and  a                                                               
proliferation of  growth on trees.   If  heavy winds knock  a 60-                                                               
foot-tall  tree  that is  two  feet  outside GVEA's  30-foot-wide                                                               
easement into GVEA's line and causes  a fire, this bill says that                                                               
GVEA is not liable for that  fire.  The bill doesn't say somebody                                                               
else is  liable for  it, he  continued; the  bill makes  it clear                                                               
that  GVEA  would not  be  liable  for  that  provided it  has  a                                                               
vegetation management plan.                                                                                                     
2:48:07 PM                                                                                                                    
CHAIR CLAMAN  opened public testimony  on HB  29.  He  noted that                                                               
the  only  people  online  for public  testimony  are  those  the                                                               
committee has  already been hearing  from and that  the committee                                                               
understands  that  all the  people  online  support  HB 29.    He                                                               
invited those online to add testimony if they so wished.                                                                        
2:49:20 PM                                                                                                                    
MR. LEMAN indicated he did not have anything to add.                                                                            
2:49:26 PM                                                                                                                    
MR.  MILLION said  everything has  been covered  on which  he had                                                               
planned to testify,                                                                                                             
2:49:37 PM                                                                                                                    
MS. ENKVIST  stated that several  of the points in  her testimony                                                               
had been covered.                                                                                                               
2:49:49 PM                                                                                                                    
MR. BUTLER clarified  he is an attorney, has worked  with HEA for                                                               
many years, and  his practice is dealing  primarily with incident                                                               
2:50:28 PM                                                                                                                    
MR. BURNS added that GVEA  has a vegetative management plan, that                                                               
it  is best  practices,  and that  it is  always  evaluated.   He                                                               
stated  that  it  is  the  reasonableness of  the  plan  that  is                                                               
evaluated.  Just because a utility  has a plan doesn't make it an                                                               
appropriate  plan, he  said; for  example, a  plan that  says the                                                               
utility is  not going to  have a plan  is not a  reasonable plan,                                                               
and that will always come into  question.  He reiterated that the                                                               
bill is not  shifting liability, it is posing  liability for that                                                               
which a utility has control over.                                                                                               
CHAIR CLAMAN  noted Mr. Burns is  a licensed attorney as  well as                                                               
the CEO of GVEA.                                                                                                                
MR. BUTLER confirmed he is still a licensed attorney.                                                                           
2:51:42 PM                                                                                                                    
CHAIR CLAMAN closed public testimony  on HB 29 after ascertaining                                                               
no one else wished to testify.                                                                                                  
2:51:58 PM                                                                                                                    
REPRESENTATIVE EASTMAN said  he doesn't see any  exception in the                                                               
bill for negligence.  He asked  whether the bill would preclude a                                                               
utility being held  liable for a claim of negligence  on the part                                                               
of the utility.                                                                                                                 
MR. BURNS  responded that the  answer is no from  the perspective                                                               
that if  a utility  fails to  do something  which it  should have                                                               
done, which  is within  the utility's  control, then  the utility                                                               
would not be shielded from negligence.   From the standpoint of a                                                               
utility's right-of-way,  side to side  clearing, he said  he does                                                               
not  see   the  bill  shielding  utility   companies  from  basic                                                               
negligence.  The  bill says utility companies are  not liable for                                                               
that which  they cannot control,  he continued, and if  a utility                                                               
can control and fails to do it, then the utility is negligent.                                                                  
MR. LEMAN  responded that HB 29  makes it clearer what  the legal                                                               
standard is  that the  utility is going  to be held  to.   In the                                                               
absence of HB  29, he said, the situation is  that lawyers get to                                                               
argue  about whether  a utility  was negligent.   He  said HB  29                                                               
makes it  clearer for landowners  and the utilities about  when a                                                               
utility is going  to be liable for a wildfire  that resulted from                                                               
vegetation  contacting the  facilities.   If  that vegetation  is                                                               
outside the  easement the utility is  not going to be  liable, he                                                               
continued, and if  the utility is liable a look  will be taken at                                                               
the vegetation management  plan and when the  utility follows it.                                                               
He  further stated  that  in  the industry's  mind,  the bill  is                                                               
providing more certainty and more  clarity than would be had with                                                               
a negligence  standard, which  is very general  and with  lots of                                                               
room for lawyers to argue about what it means.                                                                                  
2:55:13 PM                                                                                                                    
REPRESENTATIVE EASTMAN said a question  that might be asked later                                                               
is  whether there  is  anything wrong  in  pulling out  liability                                                               
after  negligence or  gross negligence  here  since that  doesn't                                                               
seem to  be what the bill  is about.   He said there is  also the                                                               
question of timing.  For  example, he noted, negligence can occur                                                               
after the  fire has already happened  and so it's not  a question                                                               
of  negligence on  the vegetation  management plan.   He  related                                                               
that  there have  been times  when  [firefighters] receive  calls                                                               
about  sparking from  vegetation  contact but  the  fire may  not                                                               
start until several  days later.  He inquired about  the point at                                                               
which the liability happens.                                                                                                    
MR. LEMAN  answered that he  would turn  back to the  language of                                                               
the  bill -  if  the  tree that  eventually  caused  the fire  by                                                               
contacting  the facility  is outside  the easement  it's got  the                                                               
standard in  there; if  it's inside the  easement it's  the other                                                               
standard.    He  maintained  it  would  be  unlikely  to  have  a                                                               
situation  where  vegetation  sits  for a  week  on  a  powerline                                                               
without that  becoming obvious  operationally and  something that                                                               
somebody would deal with quickly.                                                                                               
2:57:24 PM                                                                                                                    
REPRESENTATIVE VANCE  stated the committee  may need to  speak to                                                               
its  legislative intent  about  what is  a reasonable  management                                                               
plan.  She observed that  HB 29 specifically speaks to vegetation                                                               
and  the liability.   She  asked whether  there are  instances of                                                               
liability that  involve a buildup  of ice which causes  damage or                                                               
possible flooding that is not being addressed.                                                                                  
MR. BURNS  replied he is  not aware of  that type of  incident in                                                               
GVEA's service territory.                                                                                                       
MR.  BUTLER  responded  he  is   not  aware  of  those  types  of                                                               
circumstances which arguably  are an act of God  or force majeure                                                               
beyond the ability of the utility  to practically manage for.  He                                                               
said  utilities  manage  their  facilities  for  reliability  and                                                               
safety; if something that was  outside the control of the utility                                                               
caused the problem, then that  would probably be beyond the scope                                                               
of what this bill is trying  to do.  He offered his understanding                                                               
that HB 29 is trying to just  make clear that if a utility adopts                                                               
best practices  and has an  effective vegetation  management plan                                                               
that the lines of responsibility  and liability are clear and not                                                               
as ambiguous as they are now.                                                                                                   
2:59:48 PM                                                                                                                    
CHAIR CLAMAN held over HB 29.                                                                                                   

Document Name Date/Time Subjects
HB 109 v. A 2.22.2021.PDF HJUD 3/22/2021 1:30:00 PM
HJUD 3/24/2021 1:30:00 PM
HB 109
HB 109 Sponsor Statement v. A 3.20.2021.pdf HJUD 3/22/2021 1:30:00 PM
HJUD 3/24/2021 1:30:00 PM
HB 109
HB 109 Additional Document - A Sunset Review of the Board of Governors of the Alaska Bar Association 6.9.2020.pdf HJUD 3/22/2021 1:30:00 PM
HJUD 3/24/2021 1:30:00 PM
HB 109
HB 109 Statement of Zero Fiscal Impact 3.21.2021.pdf HJUD 3/22/2021 1:30:00 PM
HJUD 3/24/2021 1:30:00 PM
HB 109
HB 29 v. A 2.18.2021.PDF HJUD 3/22/2021 1:30:00 PM
HJUD 3/29/2021 1:00:00 PM
HJUD 4/9/2021 1:00:00 PM
HJUD 4/16/2021 1:00:00 PM
HB 29
HB 29 Sponsor Statement 3.22.2021.pdf HJUD 3/22/2021 1:30:00 PM
HJUD 3/29/2021 1:00:00 PM
HJUD 4/9/2021 1:00:00 PM
HJUD 4/16/2021 1:00:00 PM
HB 29
HB 29 Supporting Document - Electric Utility Liability Information 3.22.2021.pdf HJUD 3/22/2021 1:30:00 PM
HJUD 3/29/2021 1:00:00 PM
HJUD 4/9/2021 1:00:00 PM
HJUD 4/16/2021 1:00:00 PM
HB 29
HB 29 Supporting Document - APA Letter 3.1.2021.pdf HJUD 3/22/2021 1:30:00 PM
HJUD 3/29/2021 1:00:00 PM
HJUD 4/9/2021 1:00:00 PM
HJUD 4/16/2021 1:00:00 PM
HB 29
HB 29 Supporting Document - CVEA Letter 3.9.2021.pdf HJUD 3/22/2021 1:30:00 PM
HJUD 3/29/2021 1:00:00 PM
HJUD 4/9/2021 1:00:00 PM
HJUD 4/16/2021 1:00:00 PM
HB 29
HB 29 Supporting Document - GVEA Letter 3.16.2021.pdf HJUD 3/22/2021 1:30:00 PM
HJUD 3/29/2021 1:00:00 PM
HJUD 4/9/2021 1:00:00 PM
HJUD 4/16/2021 1:00:00 PM
HB 29
HB 29 Supporting Document - CVEA Vegetation Management Draft March 2021 3.22.2021.pdf HJUD 3/22/2021 1:30:00 PM
HJUD 3/29/2021 1:00:00 PM
HJUD 4/16/2021 1:00:00 PM
HB 29
HB 29 Fiscal Note LAW-CIV 3.12.2021.pdf HJUD 3/22/2021 1:30:00 PM
HJUD 3/29/2021 1:00:00 PM
HJUD 4/9/2021 1:00:00 PM
HB 29