Legislature(2001 - 2002)
03/22/2002 08:40 AM House O&G
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE SPECIAL COMMITTEE ON OIL AND GAS
March 22, 2002
8:40 a.m.
MEMBERS PRESENT
Representative Hugh Fate, Vice Chair
Representative Fred Dyson
Representative Mike Chenault
Representative Vic Kohring
Representative Gretchen Guess
Representative Reggie Joule
MEMBERS ABSENT
Representative Scott Ogan, Chair
OTHER LEGISLATORS PRESENT
Representative Ken Lancaster
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 343(RES)
"An Act clarifying the term 'best technology' required for use
in oil discharge prevention and contingency plans; affirming
existing Department of Environmental Conservation regulations
defining 'best technology' and oil discharge prevention and
contingency plans approved using those regulations; and
providing for an effective date."
- MOVED CSSB 343(RES) OUT OF COMMITTEE
PREVIOUS ACTION
BILL: SB 343
SHORT TITLE:BEST AVAILABLE TECHNOLOGY:DISCHARGE PLAN
SPONSOR(S): RESOURCES
Jrn-Date Jrn-Page Action
02/27/02 2319 (S) READ THE FIRST TIME -
REFERRALS
02/27/02 2319 (S) RES
03/04/02 (S) RES AT 3:30 PM BUTROVICH 205
03/04/02 (S) Moved CS(RES) Out of
Committee
03/04/02 (S) MINUTE(RES)
03/04/02 (S) MINUTE(RES)
03/06/02 2386 (S) RES RPT CS 6DP 1NR SAME TITLE
03/06/02 2386 (S) DP: TORGERSON, TAYLOR,
HALFORD,
03/06/02 2386 (S) STEVENS, WILKEN, LINCOLN; NR:
ELTON
03/06/02 2387 (S) FN1: ZERO(DEC)
03/13/02 (S) RLS AT 11:00 AM FAHRENKAMP
203
03/13/02 (S) MINUTE(RLS)
03/13/02 2416 (S) RULES TO CALENDAR 3/13/02
03/13/02 2417 (S) READ THE SECOND TIME
03/13/02 2417 (S) RES CS ADOPTED UNAN CONSENT
03/13/02 2417 (S) ADVANCED TO THIRD READING
UNAN CONSENT
03/13/02 2417 (S) READ THE THIRD TIME CSSB
343(RES)
03/13/02 2417 (S) PASSED Y17 N1 E1 A1
03/13/02 2418 (S) EFFECTIVE DATE(S) SAME AS
PASSAGE
03/13/02 2420 (S) TRANSMITTED TO (H)
03/13/02 2420 (S) VERSION: CSSB 343(RES)
03/15/02 2538 (H) READ THE FIRST TIME -
REFERRALS
03/15/02 2538 (H) O&G, RES
03/22/02 (H) O&G AT 8:00 AM CAPITOL 124
WITNESS REGISTER
SENATOR JOHN TORGERSON
Alaska State Legislature
Capitol Building, Room 427
Juneau, Alaska 99801
POSITION STATEMENT: Presented SB 343 on behalf of the Senate
Resources Standing Committee, sponsor, which he chairs.
KURT FREDRIKSSON, Deputy Commissioner
Office of the Commissioner
Department of Environmental Conservation (DEC)
410 Willoughby, Suite 303
Juneau, Alaska 99801-1795
POSITION STATEMENT: Testified in support of SB 343 as an
appropriate response to the recent supreme court ruling.
MARILYN CROCKETT, Deputy Director
Alaska Oil and Gas Association (AOGA)
121 West Fireweed, Number 207
Anchorage, Alaska 99503
POSITION STATEMENT: Testified in support of SB 343 in order
that the legislature can clarify the legislative intent.
DOUG MERTZ
Prince William Sound Regional Citizens' Advisory Council (RCAC)
319 Seward Street
Juneau, Alaska 99801
POSITION STATEMENT: Expressed concern about the amount of
discretion under SB 343; requested amending it to specify that
there shall be a conference on best available technology every
five years.
SUSAN SCHRADER
Alaska Conservation Voters (ACV)
P.O. Box 22151
Juneau, Alaska 99802
POSITION STATEMENT: Testified in opposition to SB 343.
BRECK C. TOSTEVIN, Assistant Attorney General
Environmental Section
Civil Division (Anchorage)
Department of Law
1031 West 4th Avenue, Suite 200
Anchorage, Alaska 99501-1994
POSITION STATEMENT: Testified on SB 343.
TOM LAKOSH
P.O. Box 100648
Anchorage, Alaska 99510
POSITION STATEMENT: Testified on SB 343, requesting that it be
amended and cautioning against haste.
ROSS COEN
Alaska Forum for Environmental Responsibility
P.O. Box 82718
Fairbanks, Alaska 99708
POSITION STATEMENT: Testified in opposition to SB 343.
DARWIN PETERSON, Staff
to Senator John Torgerson
Alaska State Legislature
Capitol Building, Room 427
Juneau, Alaska 99801
POSITION STATEMENT: Answered questions on behalf of the Senate
Resources Standing Committee, sponsor of SB 343, which Senator
Torgerson chairs.
ACTION NARRATIVE
TAPE 02-17, SIDE A
Number 0001
VICE CHAIR HUGH FATE reconvened the House Special Committee on
Oil and Gas meeting at 8:40 a.m. Present at the call back to
order were Representatives Fate, Chenault, Kohring, and Joule;
Representatives Guess and Dyson joined the meeting in progress.
[For the overview by XTO Energy, see the 8:07 a.m. minutes for
this date.]
SB 343-BEST AVAILABLE TECHNOLOGY:DISCHARGE PLAN
VICE CHAIR FATE announced that the committee would hear CS FOR
SENATE BILL NO. 343(RES), "An Act clarifying the term 'best
technology' required for use in oil discharge prevention and
contingency plans; affirming existing Department of
Environmental Conservation regulations defining 'best
technology' and oil discharge prevention and contingency plans
approved using those regulations; and providing for an effective
date."
Number 0050
SENATOR JOHN TORGERSON, Alaska State Legislature, chair of the
Senate Resources Standing Committee, sponsor of SB 343,
explained that the bill responds to the Alaska Supreme Court's
February 1, 2002, ruling in Lakosh v. DEC by clarifying and
affirming the "best available technology" (BAT) requirement for
oil spill contingency plans ("C Plans"). It accomplishes three
things: clarifies that the 1997 negotiated rulemaking
regulations that established a three-tiered approach for BAT
determinations is a correct interpretation of the statute;
affirms the continued validity and effect of the 1997
regulations utilized in approving over 100 C Plans since April
1997; and affirms the continued effect of C-Plan approvals
issued under the 1997 regulations and ensures that plan holders
can continue to operate under those approvals.
SENATOR TORGERSON said the bill doesn't eliminate or weaken the
BAT requirement, which has been part of the "contingency
statute" since 1980, long before the Exxon Valdez spill. In
1990, the legislature amended the existing law to avoid rigorous
oil response-planning standards, he said, but the legislature
didn't address the relationship between the planning standards
and the best available technology. He remarked, "This bill
would ensure the 1997 consensus criteria developed in the
negotiated rulemaking and that has been used for making best
available technology determinations for the last five years,
criteria that [have] ... resulted in major improvements to oil
spill prevention and response." He informed members that
technical questions could be addressed by staff member Darwin
[Peterson] or consultant Patrick Coughlin.
Number 0290
KURT FREDRIKSSON, Deputy Commissioner, Office of the
Commissioner, Department of Environmental Conservation (DEC),
came forward to testify, noting that he'd provided written
testimony. He told members DEC is responsible for reviewing and
approving oil discharge prevention and contingency plans for
more than 120 facilities in Alaska, including oil terminals,
pipelines, exploration [and] production facilities, tank
vessels, oil barges, nontank vessels, and the railroad.
MR. FREDRIKSSON said DEC supports passage of SB 343 as an
appropriate response to the recent supreme court ruling on "best
available technology" that's described in C Plans. At the heart
of the court's ruling is the legislative intent for best
available technology requirements. He told members:
Following the Exxon Valdez oil spill, the legislature
established the toughest spill-response planning
standards in the world; DEC interpreted the statute to
mean that meeting Alaska tough response-planning
standards also satisfies the "best available
technology" requirement if the equipment has proven
reliable and appropriate for its intended use and
[the] magnitude of the spill it's addressing. This
interpretation was developed through an extensive
workgroup process when the regulations were developed
in 1997.
The court recognized that this approach has
considerable merit, but only to the extent that the
legislature actually granted DEC authority to define
best available technology in terms of reliance on ...
the response-planning standards. The court has raised
a rather narrow question regarding whether or not our
regulatory interpretation meets the legislature's
intent in dealing with this issue.
The court has interpreted the current statute to mean
that the legislature intended to impose two separate
best available technology requirements that [preclude]
DEC from ... relying on the response-planning
standards or performance standards established in
regulations to satisfy the best available technology
requirements. In their ruling, the court has invited
the legislature to clarify its intent for best
available technology. SB 343 would clarify the
legislature's intent, consistent with our current way
of doing business.
Number 0519
MR. FREDRIKSSON advised the committee that DEC believes any
legislation should meet the following five goals: first, it
must be limited to what is necessary to address the court
ruling; second, to eliminate the cloud of uncertainty from the
court ruling regarding the validity of existing plan approvals
made since 1997 for Alaskan facilities, it must be passed this
session; third, it must validate existing regulations and
preserve the approach used for making BAT determinations as
envisioned by the 1997 taskforce; fourth, it mustn't diminish
the existing response capability in support of Alaska's
facilities today; and fifth, it must continue to support [DEC's]
evaluation of new technologies and "best available" findings.
MR. FREDRIKSSON said SB 343 meets the foregoing five goals and
provides straightforward language that clarifies the legislative
intent. It also validates the best available technology
approach taken by the department in the 1997 negotiated
rulemaking process, and affirms the continued effect of C Plans
approved by the department to date. He offered his belief that
the bill doesn't reduce the rigor of existing C-Plan review or
diminish the response readiness and capability of industry. He
said the bill provides for the department's periodic examination
of new technologies to keep Alaska in the forefront of
environmental protection statewide. He reiterated DEC's support
for SB 343.
Number 0692
MARILYN CROCKETT, Deputy Director, Alaska Oil and Gas
Association (AOGA), came forward to testify, noting that AOGA is
a trade association whose 19 member companies "represent the
majority of oil and gas activities in Alaska." Its membership
includes the in-state producers, the three in-state refiners,
and Alyeska Pipeline [Service Company]; all must have oil
discharge prevention and contingency plans in place and
therefore are heavily vested in this issue. She agreed that the
heart of the matter is to respond to the supreme court's
decision that eliminated two sections in [DEC's] regulations
dealing with BAT determinations; those were promulgated by the
department in 1997 after a stakeholder group was established.
She said AOGA participated along with others including
municipalities, environmental groups, and the RCACs [Regional
Citizens' Advisory Councils]. Ms. Crockett stated:
We supported the regulations at that time, and we
continue to support them today, including this
specific provision in the regulations for the "best
available technology" conference; there seems to have
been some questions about whether industry supports
that conference, and we do, in fact, support the
conference that's required by the regulations, which
we support.
MS. CROCKETT said the court decision has placed everyone -
including AOGA's members, the department, and the public - in a
tenuous position because of the inability to complete C-Plan
renewals or new plan approvals. Potentially, the department,
instead of being able to focus on getting the best C Plans
possible, will have to go through a rulemaking process that will
divert its attention; she suggested that absent the specific
legislative intent provided by SB 343, that rulemaking process
later could be called into question through litigation, which
AOGA hopes to avoid.
Number 0875
MS. CROCKETT emphasized that AOGA's only objective in
encouraging support of SB 343 is to clarify the legislative
intent. She explained:
We are in no way supportive of any attempt to reduce
the requirements of the department, nor are we asking
... to be relieved of many of the requirements. This
is a very simple and straightforward matter, from our
point of view, and it's to respond to the supreme
court decision by saying that the process that the
department has used following the stakeholder efforts,
is, in fact, the process that the legislature
intended.
MS. CROCKETT suggested this is a time-critical issue because
some companies have projects for which they cannot get C-Plan
approval or consistency determinations because of the inability
to get the plans approved. She encouraged moving SB 343 out of
committee that day.
Number 0933
REPRESENTATIVE DYSON announced that he had to testify before
another committee at 9 a.m. Because he planned to vote for the
bill, he asked to hear next from anybody who planned to testify
against it.
VICE CHAIR FATE agreed, offering his belief that two testifiers
had concerns.
Number 0998
DOUG MERTZ, Prince William Sound Regional Citizens' Advisory
Council (RCAC), came forward to testify, noting that the RCAC is
a coalition of 18 municipalities and other groups in the area
affected by the Exxon Valdez oil spill. He said the RCAC
understands the need for the legislation to clarify the intent
with regard to the BAT, but has some real concerns.
Principally, the bill as written gives DEC an enormous amount of
discretion on how to implement the BAT requirement. Throughout
the bill, it says "may" find, prepare, require, administer, and
enforce; this provides, by implication, the choice not to do
those things. Therefore, DEC could "make it terribly onerous or
can make it a meaningless walkthrough, or anything in between."
MR. MERTZ mentioned reference to the 1997 regulations that were
done cooperatively, which he said almost everybody is still
pleased with. He expressed particular concern that DEC can
effectively gut those under this bill. He explained that one
"leg" that makes those regulations meaningful is the requirement
of a conference on BAT every five years at which the industry,
DEC, and other "interested and expert parties" would come
together to find a consensus on what the current BAT is.
However, DEC hasn't held that conference in the past when the
deadline has come.
Number 1101
MR. MERTZ said that right now [DEC] supports [the conference]
and has an appropriation request for it, and that industry and
"basically everybody" is supporting it. He therefore requested
a reference to that regulatory requirement in the bill, to be
placed in the findings section, as suggested in a letter
provided to the committee from Mr. [John] Devens [Executive
Director, Prince William Sound RCAC]. That would clarify that
DEC really does have to hold this conference, as its own
regulations now say.
Number 1180
REPRESENTATIVE GUESS asked whether, if the statute were to
specify [a conference every five years], the state perhaps would
be unable to review the best available technology within a
shorter amount of time.
MR. MERTZ answered that the current law and that proposed in the
bill give DEC authority to make an interim definition at any
time if new technology comes along that clearly is superior to
"what they had a consensus on the last time that they met and
conferred and declared something to be a BAT." However, he said
the every-five-year conference would be the opportunity and the
place where all parties would know they'd reexamine it all.
REPRESENTATIVE DYSON expressed appreciation for the work of the
RCAC.
Number 1270
SUSAN SCHRADER, Alaska Conservation Voters (ACV), came forward
to testify in opposition to SB 343, noting that her written
testimony was in members' packets. She advised the committee
that ACV respectfully disagrees with the views of DEC and the
administration, and with the assistant attorney general's
interpretation of the [Lakosh v. DEC] court decision. She
explained that ACV believes the bill does two things: it
creates a major disincentive for the oil industry to put money
into research and development for BAT technology, and it
provides a "major way to let DEC off the hook" for taking a
close look at alternative technologies. She said:
Our reading of the bill suggests that under the bill's
language, simply the first technology that [an]
applicant proposes in a C Plan to meet the response-
planning standard could easily be written off by DEC
as best available technology - that that would meet
the definition of "best available technology." And
... in our view, this is not looking for best
available technology; it's looking merely for whatever
will meet the planning standard, second-best available
technology, or bare-minimum technology, as the case
may be, depending on DEC's wishes.
We would suggest that at this point there are draft
regulations out for comment to address the court
decision, that that process be continued. We think
it's appropriate for DEC's regulatory process to
address the court decision. We further disagree with
statements from the administration that there must be
a statutory response to the court decision. We
believe it can be handled in regulation. And we think
that DEC needs to make and take a complete look at all
the alternatives, to do the alternative analysis
before determining best available technology. And ...
that type of analysis needs to have ... plenty of
opportunity for public review and comment.
Number 1494
BRECK C. TOSTEVIN, Assistant Attorney General, Environmental
Section, Civil Division (Anchorage), Department of Law,
testified via teleconference. He paraphrased his written
testimony [in packets] as follows:
I'd like to cover two topics in my testimony. The
first is the reasoning and effect of the supreme
court's recent decision concerning the statutory "best
available technology" requirement for oil-spill
C Plans. And the second is how this legislation
responds to the supreme court's decision in a focused
and measured way.
The legislation before you today seeks to clarify the
statutory requirement that oil spill contingency plans
use best available technology, in light of the Alaska
Supreme Court's ruling in the Lakosh v. DEC case. The
best available technology requirement had been in
place since 1990 for response equipment which [is]
used in C Plans. And because of the addition of oil-
spill prevention to the C-Plan statute in 1990, the
BAT requirement ... became applicable to prevention
equipment at that point. In addition, the 1990
amendments added the rigorous oil-spill response-
planning standards to the C-Plan statute, but the
legislature did not address the relationship between
those planning standards and the BAT requirement.
In its recent ruling, the Alaska Supreme Court found
two parts of DEC's regulatory ... criteria for
determining whether a C Plan uses best available
technology ... to be inconsistent with the statute.
And these regulatory criteria were developed as part
of the 1997 negotiated rulemaking, and that included
numerous stakeholders from throughout the state with a
broad range of interests.
In the Lakosh case, the Alaska Supreme Court was
confronted with a general challenge to the
regulations. The court's ruling was a narrow legal
decision which focused on the language of the
regulations, as opposed to a technical determination
of whether any particular piece of equipment or
technology is indeed "best available."
In finding parts of the regulations inconsistent with
the statute, the court relied upon the dictionary
definition of the term "best," and concluded that in
the absence of legislative history to the contrary,
the BAT regulations could not ... rely on the
stringent response-planning standards in determining
BAT or rely on performance standards, which are set in
regulation, for determining BAT for oil-spill
prevention technology. The Alaska Supreme Court
concluded that while reliance on performance standards
for determining BAT had considerable ... theoretical
merit and was used in other federal environmental
statutes in lieu of the one-size-fits-all
technological rule, the absence of specific
legislative history on the interplay between those
standards and the BAT requirement led the court to its
conclusion that the criteria were inconsistent with
the statute.
Number 1658
MR. TOSTEVIN continued:
Now, given that the Alaska Supreme Court's ruling
overturning the 1997 workgroup's use of the statutory
response-planning standard and the performance
standards in determining best available technology,
the BAT statutory requirement is ripe for legislative
clarification.
The legislation you have before you today would
restore the regulatory criteria adopted in the 1997
negotiated rulemaking and that has been utilized in
approving over a hundred C Plans since April of 1997.
This legislation does not weaken the best available
technology requirement, but rather is an effort to
restore the consensus criteria that [have] been used
for making BAT determinations for the last five years,
criteria that [have] resulted in major improvements in
oil-spill prevention and response. ...
Senate Bill 343 accomplishes three things. It
clarifies that the 1997 negotiated rulemaking
regulations, which establish a three-tier approach for
making BAT determinations, is a permissible
interpretation of the statute. Second, it affirms the
continued validity and effect of the 1997 regulations.
If Senate Bill 343 is enacted, DEC would not be
required to revise its BAT regulations. And third and
finally, the legislature would affirm the continued
effect of contingency plan's approvals issued under
the 1997 regulations, and assure that the plan holders
can continue to operate under those approvals.
Number 1741
MR. TOSTEVIN responded to testimony that this gives too much
discretion to DEC; he said as currently written, the statute
simply says the C Plan must use best available technology,
without defining what it is. Thus the legislation is an attempt
to clarify that the regulations' approach is a permissible
interpretation of the statute. He said the role of the C-Plan
review process is to provide a certain amount of discretion to
DEC in making those determinations. This legislation attempts
to allow the 1997 criteria to be used. In essence, he said, it
doesn't diminish the statutory requirement at all.
Number 1830
TOM LAKOSH testified via teleconference, noting that he was the
successful pro per litigant before the supreme court in this
matter. He told members that the parties' positions really
aren't that far apart; it's just a matter of having "more timely
reviews of plans consistent with other sections of the statute,
which you're not considering here today," and implementing the
breakthrough technology and integrating it into systems in an
orderly and incremental manner.
MR. LAKOSH noted that he'd sent suggested amendment language to
the committee [in an e-mail dated March 18, 2002] to emphasize
that the parties really aren't that far apart and that it would
be "much more appropriate for this committee to provide a
solution for the court as far as a reasonable interpretation of
law, rather than one that is clearly still at odds with entire
... other sections of the statute and constitutional mandates."
MR. LAKOSH informed members of what he was hoping to obtain from
the still-pending [court] case: for the breakthrough-technology
symposium and analysis process to happen every two years instead
of every five, to be more consistent with statutory language for
adoption of BAT response and prevention equipment at the time of
permit renewal. In addition, he was hoping the committee could
amend the bill to clarify "exactly what we're looking for in
best technology."
Number 1960
MR. LAKOSH said the equipment deemed best elsewhere, worldwide,
isn't designed for Alaska's severe conditions. He explained:
The best response inventory in the state, held by
Alyeska [Pipeline Service Company], is quite ... an
array of equipment, but because ... of the products
that they selected and the way that they have to be
operated, they ... have to stop responding in seas
over six feet because of hazard to crews of operating
the types of equipment that require over-the-board
crane operations and so forth. The best technology
that they have there can work in ten-foot seas, but it
can only operate at ... its maximum capacity ... for
15 minutes, because it then would have to stop to
lighter "storage."
We have virtually no ability ... to respond to the
response-planning-standard levels in broken ice or
sheet ice. And ... despite the improvements that we
had, we're still a very long way from trying to
eliminate the types of hazards to our resource use
that our constitution was specifically designed to
prohibit, ... because there's no difference between an
oil spill and a fish trap, that our Article VIII ...
specifically tried to make it impossible to ever allow
again ... where one ... user of a natural resource,
whether they're transporting a hazardous cargo through
or otherwise exploiting the environment, has the right
to exploit it to the exclusion of everyone else. And
that's exactly what a catastrophic oil spill does.
And we all know the seas get higher than six feet. We
all know that there's ice out in front of the glaciers
and in Cook Inlet and on the North Slope and on the
... rivers along the TAPS [Trans-Alaska Pipeline
System] right-of-way. We now have a 25-year-old
pipeline, ... TAPS. We have 40-year-old pipelines on
the peninsula. We have aging platforms and underwater
pipes.
Number 2096
MR. LAKOSH continued:
And now is not the time to shy away from the problem
that is confronting the legislature at this time, ...
that DEC has been caught not enforcing the law. And
this legislation does not wipe away the damages
sustained by the Alaska citizens for the last 21
years. ... The best clause in this legislation
actually grew out of the circumstance that arose from
Chevron [U.S.A., Inc.] v. Hammond, where in fact ...
the state tried to set what [were] clear limits for
double-hulled tankers; the industry balked, even
though they had promised us the best technology in
double-hulled tankers in their right-of-way leases.
And so, we were ... stuck with having to try and
enforce the "through ... best technology" provision in
our statute that was passed in '80, repassed in 1990.
But what the legislature doesn't seem to comprehend,
and no one is really setting forth, is that our
standards have always been highest. The ... response-
planning standards ... and spill-prevention measures
that were put in place along the pipeline were
supposed to be the best, and ... they were supposed to
recover 200,000 barrels of oil in 48 hours, which, if
you ... average out, is exactly the same or more
demanding than the present regulatory standard of
300,000 barrels in 72 hours.
Number 2185
MR. LAKOSH continued:
So ... I beg the committee ... to not make a hasty
move to try and correct a situation that is near
resolution between the parties in any event. The
comments of the Alaska Conservation Voters clearly
[indicate] that there's an ongoing regulatory process.
The prior negotiated process ... didn't involve all of
the parties, and there was obviously no attention paid
to the very clear statement that won me the case in
the supreme court: this regulation is inconsistent
with statute; you cannot put this into play. ...
Unfortunately, it took five judges of the supreme
court ... to drive that point home. And now that we
have that point home and we know that we have to face
an additional 250 to 500 permittees in the nontank-
vessel category, I think it's time that we sat down
among the affected communities and allowed this
process to go forward with ... a rewriting of the
regulations, not simply to try and make up for the
poor job that DEC's done in advancing technologies
over the last 21 years, but also to try and make the
system more streamlined for industry.
It's clear ... that the type of response system that
is necessary to address the some-thousand vessels and
numerous pipelines, platforms, and other production
facilities ... that the department has ... to permit
is, in itself, ... an inherent monopoly; it's like a
cable company or a telephone company ... or a
circumstance where you have to cover such [a] wide
area with such a capital-intensive infrastructure that
... to try and allow ... competitive private services
to fill the niches will invariably lead to a
misallocation of resources ... by overreplication of
the equipment. That drives the average cost of
coverage high.
The response capability in the state today does not
cover ... the permittees, and leaves them exposed
because they are not capable of responding in severe
Alaska conditions. And everybody still has to
transport their oil - has to transport their hazardous
cargo - in those conditions. So we need to do a
better job both for the industry that must be
permitted and the citizens, who deserve the mandated
protections of Article VIII and ... the whole system
of statutes and regulations that have been built up to
support a regular and timely advancement of spill
prevention and response technologies.
Number 2365
ROSS COEN, Alaska Forum for Environmental Responsibility,
testified via teleconference in opposition to SB 343, noting
that his nonprofit organization is dedicated to holding industry
and government accountable to environmental laws and
regulations. He reported that at this bill's first hearing on
March 4 before the Senate Resources Standing Committee, his
testimony "apparently caused such a stir that assistant
[attorney general] Tostevin was compelled to write the
committee's chair and rebut arguments made by myself and other
testifiers." Surmising that the present committee would pass
the bill regardless of opposing testimony, he offered what he
characterized as two broad points:
While the Alaska Department of Environmental
Conservation claims that their current BAT standard is
adequate, one must consider just how strong that
argument is - or is not - when a nonlawyer who
researches this issue as an avocation, not a career,
is able to argue the case before the Alaska Supreme
Court and win. Additionally, I wish to express my
frustration that [DEC] is foregoing the opportunity to
strengthen BAT requirements and instead is choosing
the path of least resistance. Environmental
protection has never been achieved by following the
path of least resistance. [DEC] should be ashamed.
VICE CHAIR FATE announced that testimony was concluded and
requested that any written testimony be submitted. He also
noted that Representative Dyson had rejoined the hearing.
Number 2487
VICE CHAIR FATE called an at-ease at 9:18 a.m. He called the
meeting back to order at 9:19 a.m.
Number 2496
REPRESENTATIVE KOHRING, noting that Senator Torgerson no longer
was present, asked his staff to address the testimony conveying
concern about the discretion allowed DEC by use of the word
"may" throughout the bill.
Number 2528
DARWIN PETERSON, Staff to Senator John Torgerson, Alaska State
Legislature, speaking on behalf of the Senate Resources Standing
Committee, sponsor of the bill, which Senator Torgerson chairs,
responded:
I believe the intent of the legislation in 1990 was to
give DEC that discretion so that they could define
what ... the best spill-response and spill-prevention
standards are, and use that as their definition for
best available technology. They've done a really good
job of that; ... we do have the best standards in the
world. So, we don't have any illusions that DEC ...
would fall back ... on that and ... promulgate
regulations that would ... weaken the standards.
That's not the intent of this legislation at all.
REPRESENTATIVE KOHRING asked whether it opens up a situation
that could be detrimental to the industry by having regulations
that would be too stringent or unreasonable to the industry.
MR. DARWIN answered, "We don't believe so." He suggested asking
someone from the department. He then reiterated his belief that
[DEC] has done a fine job with the regulations. He added that
the 1997 negotiated rulemaking process involved all members of
the industry, environmental groups, public interest groups, and
the department; the standards developed through that are the
best available technology, he said.
Number 2612
REPRESENTATIVE DYSON moved to report [CSSB 343(RES)] out of
committee with individual recommendations and the accompanying
fiscal note. There being no objection, CSSB 343(RES) was moved
out of the House Special Committee on Oil and Gas.
ADJOURNMENT
There being no further business before the committee, the House
Special Committee on Oil and Gas meeting was adjourned at
9:21 a.m. [For the overview by XTO Energy, see the 8:07 a.m.
minutes for this date.]
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