Legislature(2017 - 2018)BUTROVICH 205
02/14/2018 03:30 PM Senate RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| SB158 | |
| SB173 | |
| SB92 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 158 | TELECONFERENCED | |
| += | SB 173 | TELECONFERENCED | |
| += | SB 92 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 173-LIABILITY: PESTICIDES & UTILITY POLES
3:36:13 PM
CHAIR GIESSEL called the meeting back to order and announced
consideration of SB 173. It would limit the liability for
utilities using a specific pesticide on wood utility poles.
Public testimony was opened and closed on February 12. The
sponsor asked for some clarifying changes and that is the reason
for the proposed committee substitute.
SENATOR COGHILL moved to adopt the work draft CSSB 173( ),
version 30-LS1332\D, as the working document.
CHAIR GIESSEL objected for discussion purposes and invited her
staff to review the changes.
3:37:20 PM
AKIS GIALOPSOS, staff to Senator Giessel and the Senate
Resources Committee, Alaska State Legislature, Juneau, Alaska,
explained:
CS for Senate Bill 173 CORRECTED Explanation of
Changes from Version A to Version D
1. Page 1, Lines 1-2: Amends the title to read "An Act
relating to the liability of a person for the release
of certain pesticides on a wood utility pole." [The
title in the previous version read "An Act relating to
the liability of a person or the state for the release
of certain pesticides during application on a utility
pole."]
2. Page 1, Line Six: Amends Section. 1 (the proposed
newly created AS 09.65.243) by removing the words
"neither the state nor" [The Committee Substitute, in
Change 4, add the definition of person given in AS
46.03.900. Because the state is considered a person
under AS 46.03.900, the references to the state in
Section. 1 were redundant and removed.]
3. Page 1, Lines 10-11: Amends Section. 1 (the
proposed newly created AS 09.65.243), by rewriting
paragraph (1) to read "the release resulted during the
installation, use, or removal of a wood utility pole
treated with a registered pesticide;" [The previous
paragraph (1) read "the release resulted from the
application of the pesticide on a wood utility pole
during the installation, use, or removal of the
utility pole;]
4. Page 1, Lines 14-15: Amends Section. 1 (the
proposed newly created AS 09.65.243) by adding a new
subsection (b) to read: "For the purposes of this
section, "person" has the meaning given in AS
46.03.900"
3:39:52 PM
CHAIR GIESSEL removed her objection and finding no further
objections, announced that CSSB 173(RES), version 30-LS1332\D,
was adopted and that she would set it aside until Friday's
hearing, which will allow time for amendments to be submitted by
5 p.m. on Thursday.
3:40:55 PM
SENATOR WIELECHOWSKI said he understood that AS 46.03.822 deals
with strict liability, so now if there is a release of a
pesticide the utility would be strictly liable. He asked if the
bill removes all liability including gross negligence.
EMILY NAUMAN, Attorney, Legislative Legal, Alaska State
Legislature, said she didn't know the answer to his questions,
but would be happy to do research on how AS 46.03.822 has been
applied.
3:42:59 PM
SENATOR WIELECHOWSKI asked the sponsor if he was open to a
provision saying there would still be liability for gross
negligence or reckless conduct on behalf of an installer.
SENATOR MICCICHE answered that the utility companies don't apply
the pesticide. The poles are treated in the manufacturing
process and the utility company installs it. He didn't think it
fits in this case.
SENATOR WIELECHOWSKI said that was a good point. He recalled a
recent incidence in which hundreds of wells were polluted. Under
strict liability Flint Hills is responsible. But this swings
responsibility to the other side of the pendulum and his concern
is that utilities have easements all across the state. So, who
is responsible if they are eliminating liability for a person,
defined as anyone? Who is responsible? The manufacturer? It
shouldn't be a person who has absolutely no say about where the
poles go. And Pentachlorophenol, called "Penta," is banned in 26
countries. Private home owners are being forced to put a product
on their property that is a known carcinogen, that has been
listed by the EPA as being extremely toxic, and that has
contaminated water wells in other states. His reasoning was if
someone was grossly negligent, at least keep the liability for
the applicator or the manufacturer.
SENATOR MICCICHE said he was sure there is a place in Alaska law
saying if gross negligence occurs in the installation of a pole
- penetrate an aquifer, for instance, not with Penta but with
some geologic damage - this does not release a utility company
from gross negligence as they carry out their duties. It
releases them from the effects of Penta. In this case, Penta is
what is used for power poles in the United States. It's not
banned in the U.S. In fact, it is specifically exempted if it is
used under the Federal Insecticide, Fungicide, and Rodenticide
Act (FIFRA).
SENATOR GIESSEL said they have heard that a pole somehow
contaminated an aquafer for a shall well in Vermont and asked if
he knew how deep the poles are inserted into the ground and how
deep are wells are that are certified by DEC. She knows that
people in the Hillside area of Anchorage seal the tops of their
wells because natural nitrates seep in from the vegetation on
the surface.
3:49:40 PM
RACHEL HANKE, staff to Senator Micciche, Alaska State
Legislature, answered that the utility poles are inserted eight
feet below ground level.
SENATOR WIELECHOWSKI asked if the federal government or any
other state provides absolute exemption from liability for
damages caused by Penta in a utility setting.
SENATOR MICCICHE said he would have to get that answer for him.
3:50:55 PM
KRISTIN RYAN, Director, Division of Spill Prevention and
Response (SPAR), Department of Environmental Conservation (DEC),
Anchorage, Alaska, answered that she wasn't aware of any states
or the federal government doing that.
SENATOR WIELECHOWSKI said the one thing Vermont did was create
best management practices, and he wondered if the sponsor would
support an amendment that required DEC to come up with best
management practices for installing and removal of poles that
are treated with registered pesticides.
SENATOR MICCICHE responded that he expects the DEC to do that.
SENATOR WIELECHOWSKI asked if the sponsor would object to
redefining "person" so that the ones that are excluded from
liability are the utilities and the state but not the applicator
or manufacturer of the pesticide.
SENATOR MICCICHE replied that he wanted to think that over until
tomorrow. The utilities and the state might already have an
exemption under FIFRA.
He said Rotenone is an insecticide/pesticide, that the state
uses to poison entire water systems to kill pike. When Rotenone
arrives in a container it has a dangerous sticker on it because
in a concentrated form it is dangerous. It is applied in a much
less concentrated form. The toxicity is gone in five to six days
in spring sunlight. It quickly reaches its half-life and is no
longer toxic. He is bringing this up because they are talking
about permitted use for a very specific case. The Alaska
Department of Fish and Game (ADF&G) - when one talks about its
risk to fish - uses Rotenone because it is not good for fish.
SENATOR MICCICHE said in the case of utility poles, Penta is
used very locally. When samples have been taken, it remains very
close to the pole and in very low levels. When it is exempted
under FIFRA it is for a specific use, which is related to the
installation, removal, and replacement of power poles that are
treated with a substance that is used all over the country.
3:56:51 PM
SENATOR WIELECHOWSKI said there are 250,000 poles across Alaska,
and he agreed that it is extremely rare for someone to be
damaged, but he wasn't aware of any waiver of liability under
federal law for using these substances. He was curious if ADF&G
had undertaken any studies of the impacts of Penta on wildlife,
humans, and the environment in Alaska.
MS. RYAN answered that SPAR is doing a study right now called
the Contaminated Sites Program on some poles in the Kenai
Wildlife Refuge. The results aren't out yet, and she is not
aware of any other work being done on Penta. She said they all
rely heavily on EPA work when it comes to pesticides, and the
work they have done on Penta is very thorough as well as being
accessible on line.
SENATOR WIELECHOWSKI asked how far the study has gone and if
they had found anything. Maybe they don't have to worry about
this issue.
MS. RYAN answered that the contractor is collecting samples now
and the data is being coordinated with a project in the
Department of Transportation and Public Facilities (DOTPF) that
is adjusting a road and therefore, moving some poles nearby.
The samples are being collected and the results won't be ready
for several weeks. The question they are trying to answer,
knowing the product's toxicity through the EPA, is if it behaves
the same way in the Alaskan environment as it does in Vermont to
figure out how to develop best management practices for the
industry when the poles are used in wetlands.
4:01:10 PM
SENATOR WIELECHOWSKI said it looks like this issue is being
rushed and he wondered if that was premature in light of the
fact that a study is going on right now. They don't know if it
is permeating into waters or not. He urged them to slow down.
SENATOR MICCICHE said he wanted to clarify that there has been
no damage. They are talking today because a detectable level was
found in one instance of unscientific sampling. He welcomes any
research by the department, but the reality is that the state
has 250,000 poles, and if something is learned, they may have a
different way of handling poles in the future. This bill is
about existing exposure to the ratepayers and the utilities that
provide those services in Alaska.
4:03:05 PM
CHAIR GIESSEL held SB 173 in committee until Friday with
amendments due by 5 p.m. tomorrow.