Legislature(2001 - 2002)
04/02/2001 03:35 PM Senate RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 121-RIGHT-OF-WAY LEASING ACT
CHAIRMAN TORGERSON announced SB 121 to be up for consideration.
MS. ANNETTE KREITZER, staff to Senator Leman, sponsor of SB 121,
said:
During the last hearing there were three concerns brought
to the committee's attention concerning this bill. One
was changes in the routing of a pipeline, another was
changes from above ground to below ground pipeline and a
third was a change in the diameter of a pipeline. The
department has dealt administratively with the diameter
and changing from above ground to below ground issues. So
we think the only remaining issue is the routing issue.
MS. KREITZER indicated there was an amendment to clarify that
language on page 2, lines 5 - 7.
MS. KREITZER said:
I want to put Senator Leman's intention on the record. He
intends that the amendment addressing routing makes clear
that routing changes would not be considered substantial
changes, which trigger all the provisions of the Pipeline
Right-of-way Leasing Act. Specifically, his intention is
not to prohibit a pipeline from being built on one side
of a creek or the other. This type of deviation from the
pipeline would not be considered a substantial change.
MS. KREITZER used a map to illustrate his point.
SENATOR PEARCE said as long as the route roughly parallels the
Alaska Highway that would not be a substantial change, even though
it might move a little bit.
MS. KRIETZER responded that the intent is to allow those decisions
to be made onsite.
CHAIRMAN TORGERSON asked if it would still have to meet the test of
a net increase of 10 percent in subsection (1).
MS. KRIETZER replied that was correct.
SENATOR PEARCE moved to adopt Amendment 1.
SENATOR ELTON asked for further clarification and said, "For
instance, if you take an elbow out to save two miles and it goes
through a neighborhood, would the sponsor of this amendment
consider that a substantial change?"
MS. KRIETZER said that she would defer to Mr. Britt's answer on
that, but she didn't think a deviation of two miles would show up
on her map.
MR. BRITT responded that he thought Senator Elton was discussing
the situation on a case-by-case basis. He remarked, "The wording I
have in front of me is a fundamental change proposed by the
applicant and the general route as set out in the original
application."
CHAIRMAN TORGERSON said that is correct.
MR. BRITT said depending on the length of the pipeline, a deviation
of less than two miles with generally the same origin and the same
end points would probably not be considered to be a fundamental
change.
CHAIRMAN TORGERSON asked if he favored the amendment and the bill
as amended.
MR. BRITT replied that he could administer the bill in front of him
but they are seeking clarification of the undefined term.
SENATOR ELTON said:
It seems to me that what we've had put on the record is
we held up a map that's 18 x 24 inches that has a green
line running down through it with the only geographical
demarcation being Fairbanks, and it seems to me that what
the maker of the amendment proposes is that, if you can
see a change in that line across the room, then that's a
substantial change. To me that seems to be an unworkable
definition of 'substantial change.'
CHAIRMAN TORGERSON said, "I did clarify that it had to meet the
rest of page 1, 10 percent. You have the same test regardless of
what she was pointing at on the map."
SENATOR ELTON responded, "Absolutely, Mr. Chair, but I think we
established through the discussion on this bill previously that you
could completely change the route and still not have a problem with
the 10 percent threshold. You'd just be exchanging some state land
for other state property."
CHAIRMAN TORGERSON said, "That isn't the way I read it." He asked
Mr. Britt if that was the way he read it.
MR. BRITT replied it is.
MR. JIM EASON, Foothills Pipe Lines, attempted to clarify the
situation by saying:
I think there may be some misunderstanding about what
happens in a circumstance where the hypothetical that has
been proposed by Senator Elton might occur. My
understanding is, and our belief in supporting this bill
is, that there are provisions, which Mr. Britt will
administer to have public notice and to have a
commissioner's best interest finding about changes that
occur in a proposed application.
The issue that we're trying to address and, hopefully,
this bill will address is whether all the provisions of
the Pipeline Right-of-Way Act are implicated any time you
have a substantial change and how you define substantial
change. So the intent is not to do something that would
not have notice, in the case that Senator Elton has
proposed or provided as a hypothetical, but with the
amendment that is under consideration here, you're
defining a third standard with the first two being the
option of proposing the use of 10 percent or more
additional state acreage that was originally proposed in
an application.
Secondly, if you propose to substitute less effective and
environmental protection or technology, once you've
submitted an application; and thirdly, if you proposed a
fundamental change in the general route. The reason for
the selection of those words is important because, as all
of us would agree, changes in a route are gradational and
they are in the eye of the beholder. We think it is
fundamentally unfair and probably not a good idea for the
state or an applicant to leave open the question of
whether minimal changes where they are proposed by the
applicant or by the agencies in order to accommodate
routing selection criteria that the agency develops or to
avoid communities or to do whatever an applicant has to
do after he has submitted a requested proposed route,
those things should not be the triggers for all the
provisions in the chapter. In other words, if you're down
a year or so into an application and it's determined
that, to use the example of the map, that you have to
cross a creek for whatever reason from a different angle,
we think that is entirely appropriate, if that's what the
agencies decide or if they decide based upon public
comment that some accommodation of the route is needed
but there's a difference between having full public
comment and agency review of those kinds of decisions,
and the thing we're hoping we can all agree on that we
need to avoid. That is retriggering all the provisions of
Title 38.35, which would include going back and refiling
an application and going through every procedure that's
outlined in that statute.
SENATOR ELTON said he understands that, but they have just heard
testimony from Mr. Britt that his hypothetical scenario does, in
fact, preclude him from defining that as a substantial change and
that bothers him [Senator Elton]. He thought that provision
essentially says: "The pipeline, if you take away 1,000 state acres
here and you add 1,080 state acres there, that is precluded as a
substantial change. "
MR. BRITT commented, "While that's correct, what Mr. Eason was
indicating is, in fact, correct as well. Many of the safeguards to
the public process would occur after such a change - by which I
mean that we promulgate a commissioner's analysis on a proposed
lease and we've public noticed those vehicles in and around
potentially affected areas. If there is sufficient public interest,
we hold a public hearing prior to making a decision. So the
commissioner's analysis would ultimately have to reflect whatever
piece of ground it is we finally are talking about."
SENATOR PEARCE tried to clarify the situation and said in the
beginning someone has to come up with a route and if a community
wanted to change it from north of town to south of town, the
company would have to start the application process from the
beginning as opposed to being able to move forward with a change
that everyone wants. She asked if that's what the bill does.
MR. BRITT replied, "It depends. We make those decisions on a case
by case basis based on what we have in front of us." He thought the
example the committee was using was outside of the realm of any
process. It would be up to the department to decide if that was a
substantial change and that decision would be open to litigation
potentially.
CHAIRMAN TORGERSON announced an at-ease from 4:10 to 4:25 p.m. He
asked if there was any further discussion on Amendment 1. There
were no further questions and it was adopted.
SENATOR PEARCE moved to pass CSSB 121(RES) from committee with
individual recommendations and its zero fiscal note. There were no
objections and it was so ordered.
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