Legislature(1999 - 2000)

03/01/2000 03:15 PM Senate RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                    SENATE RESOURCES COMMITTEE                                                                                
                           March 1, 2000                                                                                        
                             3:15 p.m.                                                                                          
                                                                                                                              
MEMBERS PRESENT                                                                                                               
                                                                                                                              
Senator Rick Halford, Chairman                                                                                                  
Senator Pete Kelly                                                                                                              
Senator Jerry Mackie                                                                                                            
Senator Lyda Green                                                                                                              
Senator Sean Parnell                                                                                                            
                                                                                                                              
MEMBERS ABSENT                                                                                                                
                                                                                                                              
Senator Robin Taylor, Vice Chairman                                                                                             
Senator Georgianna Lincoln                                                                                                      
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                              
SENATE BILL NO. 255                                                                                                             
"An Act regarding best interest findings and land use permits                                                                   
issued by the Department of Natural Resources; and providing for an                                                             
effective date."                                                                                                                
                                                                                                                                
     -MOVED CSSB 255(RES) OUT OF COMMITTEE                                                                                    
                                                                                                                              
SENATE BILL NO. 266                                                                                                             
"An Act repealing the exemptions from state law relating to the                                                                 
sale and use of TBT-based marine antifouling paints; and providing                                                              
for an effective date."                                                                                                         
                                                                                                                              
     -MOVED CSSB 266(RES) OUT OF COMMITTEE                                                                                      
                                                                                                                              
PREVIOUS SENATE COMMITTEE ACTION                                                                                              
                                                                                                                              
SB 255 - See Resources Committee minutes dated 2/18/00 and 2/23/00.                                                             
                                                                                                                                
SB 266 - No previous action to record.                                                                                          
                                                                                                                              
WITNESS REGISTER                                                                                                              
                                                                                                                              
Mr. John Shively, Commissioner                                                                                                  
Department Of Natural Resources                                                                                                 
400 Willoughby Ave., 5th floor                                                                                                  
Juneau, AK 99801                                                                                                                
POSITION STATEMENT:  Supported SB 255.                                                                                          
                                                                                                                                
Ms. Annette Kreitzer                                                                                                            
Aide to Senator Leman                                                                                                           
Alaska State Capitol                                                                                                            
Juneau, AK 99811                                                                                                                
POSITION STATEMENT:  Commented on SB 266.                                                                                       
                                                                                                                                
Mr. John Hansen, President                                                                                                      
North West Cruise Ship Association                                                                                              
No address provided                                                                                                             
POSITION STATEMENT:  Supported CSSB 266.                                                                                        
                                                                                                                                
Dr. John Kelly                                                                                                                  
International Paint                                                                                                             
Representative to IMO Committee                                                                                                 
No address provided                                                                                                             
POSITION STATEMENT:  Supported CSSB 266.                                                                                        
                                                                                                                                
Mr. Gershon Cohen                                                                                                               
Haines, AK 99827                                                                                                                
POSITION STATEMENT:  Supported CSSB 266.                                                                                        
                                                                                                                                
Captain Ed Page, Chief                                                                                                          
Marine Safety                                                                                                                   
Environmental Protection                                                                                                        
U.S. Coast Guard                                                                                                                
Juneau, AK                                                                                                                      
POSITION STATEMENT: Supported CSSB 266.                                                                                         
                                                                                                                                
Mr. Joe LeBeau                                                                                                                  
Alaska Center For the Environment                                                                                               
PO Box 872922                                                                                                                   
Wasilla AK 99687                                                                                                                
POSITION STATEMENT:  Supported CSSB 266.                                                                                        
                                                                                                                                
ACTION NARRATIVE                                                                                                                
                                                                                                                              
TAPE 00-05, SIDE A                                                                                                            
Number 001                                                                                                                      
                                                                                                                              
         SB 255-PUB.LAND PERMITS/HEALY-FAIRBANKS INTERTIE                                                                   
                                                                                                                              
CHAIRMAN HALFORD called the Senate Resources Committee meeting to                                                               
order at 3:15 and announced SB 255 to be up for consideration.                                                                  
                                                                                                                              
SENATOR PETE  KELLY, sponsor, offered  a proposed CS to address  the                                                            
concerns expressed by committee  members at a previous meeting about                                                            
the public  notice Section  4(c). The proposed  CS provides  that if                                                            
the director  determines, by evaluation  of the nature and  duration                                                            
of the intended  use, that an easement or right-of-way  issued under                                                            
this section will not be  functionally revocable, the director shall                                                            
provide public  notice before issuing the easement  or right-of-way.                                                            
                                                                                                                                
CHAIRMAN HALFORD  asked if "functionally revocable"  is the term the                                                            
court used.                                                                                                                     
                                                                                                                                
SENATOR KELLY said that is correct.                                                                                             
                                                                                                                                
SENATOR   MACKIE   asked  if   that   Section  complies   with   the                                                            
Constitution.                                                                                                                   
                                                                                                                                
SENATOR KELLY responded yes.                                                                                                    
                                                                                                                              
CHAIRMAN HALFORD asked if that is the only change in the CS.                                                                    
                                                                                                                                
SENATOR KELLY indicated yes.                                                                                                    
                                                                                                                                
SENATOR LYDA  GREEN moved to adopt  the CS to SB 255, version  H (1-                                                            
LS1245).  There were no objections and it was so ordered.                                                                       
                                                                                                                                
Number 156                                                                                                                      
                                                                                                                                
COMMISSIONER  JOHN SHIVELY, Department  of Natural Resources  (DNR),                                                            
stated support  for SB 255  and said the  committee substitute  is a                                                            
great improvement  because  of the public  notice provisions,  which                                                            
DNR would do  anyway.  It solves a  problem because DNR interpreted                                                             
the  law  one way  while  the  Supreme  Court interpreted   it in  a                                                            
different  way.   The  Supreme  Court's  interpretation  would  have                                                            
substantially  increased DNR's workload  by requiring best  interest                                                            
findings  for  an undetermined  number  of  decisions  DNR makes  on                                                            
temporary disposals, such  as leases and right-of-way permits.   The                                                            
law  has been  interpreted  in the  past  the way  this legislation                                                             
refines it and appropriate public notice is provided for.                                                                       
                                                                                                                                
CHAIRMAN HALFORD asked if it specifically regards the Intertie.                                                                 
                                                                                                                                
COMMISSIONER  SHIVELY  answered that,  regarding  the Intertie,  DNR                                                            
actually  used the  federal EIS  process because  federal  decisions                                                            
were made  along with the  State's decisions.   DNR went through  an                                                            
environmental  assessment, an environmental  impact study,  and held                                                            
public  hearings with  the federal  government.   He  held a  public                                                            
hearing  in  Fairbanks,  which  was  totally  discretionary,  so  he                                                            
believes  there was a fair  amount of public  notice.  However,  the                                                            
Supreme Court said DNR didn't issue a best interest finding.                                                                    
                                                                                                                                
SENATOR  KELLY  said he  wanted  it on  the  record that  this  bill                                                            
doesn't  change the  way DNR  has  done business  in the  past.   If                                                            
anything, it enhances public notice.                                                                                            
                                                                                                                                
COMMISSIONER SHIVELY added  that the bill clarifies what DNR can do.                                                            
It  gives DNR  the discretion  to  use a  best interest  finding  in                                                            
certain instances.                                                                                                              
                                                                                                                                
CHAIRMAN  HALFORD commented  that a best interest  finding is  not a                                                            
constitutional requirement but a public notice is.                                                                              
                                                                                                                                
COMMISSIONER SHIVELY said that is correct.                                                                                      
                                                                                                                                
SENATOR  MACKIE moved  to  pass CSSB  255(RES) from  committee  with                                                            
individual recommendations.   There were no objections and it was so                                                            
ordered.                                                                                                                        
                                                                                                                                
                 SB 266-MARINE ANTI-FOULING PAINTS                                                                          
                                                                                                                                
CHAIRMAN  HALFORD announced  SB 266 to be  up for consideration  and                                                            
said that Senator Leman had a proposed CS and an amendment.                                                                     
                                                                                                                                
SENATOR LEMAN remarked  that on a complex bill like this, it's tough                                                            
to get  it right  the first  time.  He  explained  that SB 266  goes                                                            
hand-in-hand  with  1987 legislation  that  banned  the  use of  TBT                                                            
paints on vessels  in Alaska.  The 1987 legislation  made exceptions                                                            
for vessels of the U.S.  government, foreign vessels in state waters                                                            
fewer than 90  consecutive days, and vessels of 4,000  gross tons or                                                            
more.  Over the past 13  years, research done by many, including the                                                            
Environmental  Protection Agency  (EPA), reconfirmed  that TBT  does                                                            
have an effect on shellfish and other marine life.                                                                              
                                                                                                                                
SENATOR LEMAN  said he became aware  of this state law in  a Finance                                                            
subcommittee and decided  it made sense to remove the exceptions for                                                            
the other vessels.                                                                                                              
                                                                                                                                
SENATOR  LEMAN informed  committee  members that  the International                                                             
Maritime  Organization  (IMO) is  proposing to  ban the  use of  TBT                                                            
paints beginning in 2003  and to totally eliminate them by 2008.  SB
266,  as originally  introduced,   had a  slightly  more  aggressive                                                            
schedule than that.  After  working with people who will be affected                                                            
by  the ban,  he  prepared a  committee  substitute  that  prohibits                                                            
painting  or treating  beginning  in  2001.   The bill  contains  an                                                            
effective date.                                                                                                                 
                                                                                                                                
SENATOR  MACKIE  moved to  adopt  the proposed  CSSB  266  (1LS1148\                                                            
version G).  There were no objections and it was so ordered.                                                                    
                                                                                                                                
CHAIRMAN HALFORD  asked if Senator Leman is aware  of any opposition                                                            
to the legislation.                                                                                                             
                                                                                                                                
SENATOR LEMAN  answered no, but concerns  have been expressed  about                                                            
scheduling  and whether  U.S.  shipyards could  queue  up to do  the                                                            
work. One other  concern he heard is whether the EPA  will allow TBT                                                            
paint to be  removed from ships in  some of the U.S. shipyards.   If                                                            
not, ship  owners will have  to go to a  foreign shipyard,  which he                                                            
thinks is crazy since U.S.  people should be allowed to do the work.                                                            
He believes  this version  of the bill will  allow the work  to take                                                            
place in an orderly fashion.                                                                                                    
                                                                                                                                
CHAIRMAN  HALFORD asked  if this bill  requires  the removal  of TBT                                                            
based paint or whether it just says it cannot be reapplied.                                                                     
                                                                                                                              
SENATOR LEMAN  answered that it cannot be reapplied.   Another issue                                                            
that  was raised  is  that some  ship owners  who  have maintenance                                                             
scheduled  may have  already ordered  the paint,  which is why  they                                                            
suggested an effective  date of January 1, 2001.   A ship could have                                                            
the  TBT-based  paint on  a  hull after  that,  but it  couldn't  be                                                            
reapplied.                                                                                                                      
                                                                                                                                
CHAIRMAN HALFORD wondered  if anyone has a large stock of TBT paint.                                                            
                                                                                                                                
SENATOR LEMAN  responded that paint  suppliers have said  they would                                                            
be happy to sell the alternative  paint because they would make more                                                            
money.   It doesn't  last as long  and they could  sell more  of it.                                                            
From what  he can  tell personally,  the alternative  paint is  very                                                            
effective.                                                                                                                      
                                                                                                                                
CHAIRMAN HALFORD asked what the IMO deadline was otherwise.                                                                     
                                                                                                                                
SENATOR LEMAN  said the IMO proposed  the year 2003 for banning  the                                                            
reapplication  and 2008 to eliminate  it in its entirety.   The ship                                                          
owners say they can live with the proposed IMO schedule.                                                                        
                                                                                                                                
Number 883                                                                                                                      
                                                                                                                                
MS. ANNETTE KREITZER, staff  to Senator Leman, clarified that one of                                                            
the  problems   has  to  do  with  the  way  the  current   law,  AS                                                            
46.03.715(b), reads:                                                                                                            
                                                                                                                                
     TBT-based  marine antifouling  paint need  not be removed                                                                  
     from fishing gear or from  a vessel or other item that was                                                                 
     painted  or  treated  before  December 1,  1987,  but  the                                                                 
     vessel  gear or  item may  not be repainted  or retreated                                                                  
     with TBT-based marine anti-fouling paint or coating.                                                                       
                                                                                                                                
The concern is with the  way the bill was originally introduced. The                                                            
vessels that  fit under the exemption  might possibly be  subject to                                                            
someone misconstruing  the  law to mean that  they had been  painted                                                            
after 1987.   The original  bill left  a gap  between 1987 and  2003                                                            
(the IMO  phase-out date).   Today she talked  to John L.  Sullivan,                                                            
ARCO  Marine, who  told her  that many  companies  preorder the  TBT                                                            
paint and, if  the deadline is January 1, 2001, they  would have the                                                            
opportunity  to exhaust  the supplies  they have  on hand. She  also                                                            
spoke with  Mr. Al Parish  of Holland America,  who said they  could                                                            
also meet that deadline.                                                                                                        
                                                                                                                                
CHAIRMAN  HALFORD  asked  if the  existing  exemption  for  aluminum                                                            
vessels is perpetual.                                                                                                           
                                                                                                                                
MS. KREITZER explained  that it's perpetual under state law, but  no                                                            
one knows what  the IMO will do.   Right now the IMO is proposing  a                                                            
ban on everything  on aluminum boats.  Aluminum boats  were exempted                                                            
because of galvanic corrosion.   If you put a penny into an aluminum                                                            
boat,  it will eat  right through  it, so  copper-based antifouling                                                             
paints cannot  be used.  Aluminum boats typically  have a very heavy                                                            
epoxy coating.  Some people  apply a copper-based anti-fouling paint                                                            
over that but paint experts say that is dangerous.                                                                              
                                                                                                                                
CHAIRMAN  HALFORD  asked  if  the  aluminum   exemption  applies  to                                                            
aircraft floats.                                                                                                                
                                                                                                                                
MS. KREITZER answered yes - in state law.                                                                                       
                                                                                                                                
Number 1198                                                                                                                     
                                                                                                                                
MR.  JOHN HANSON,  President,  North  West Cruise  Ship Association                                                             
(NWCSA),  stated  support  for CSSB  266.   NWCSA  represents  eight                                                            
cruise  lines that  come to  Alaska, largely  from  Vancouver.   The                                                            
companies  include:  Holland  America,  Carnival,  Norwegian  Cruise                                                            
Lines, Princess Cruises,  Celebrity Royal Caribbean, World Explorer,                                                            
and Crystal Cruises.   These companies operate a total  of 21 ships.                                                            
They operate  in over  100 countries  and, in  North America  alone,                                                            
they are in  over 25 states and provinces.   Most of the  safety and                                                            
environmental protection  standards are established by international                                                            
agreement.  The IMO has  deliberated extensively during the last few                                                            
years over the  use of anti-fouling paint.  Senator  Leman's bill is                                                            
an informed  affirmation  of this  commitment  to replace  TBT-based                                                            
paint.  He  has checked with most  of his member lines and  they are                                                            
comfortable with the dates proposed in the legislation.                                                                         
                                                                                                                                
Number 1351                                                                                                                     
                                                                                                                                
DR. JOHN  KELLY, International  Paint, said  International  Paint is                                                            
the largest supplier  of marine paint in the world.   It supports SB
266.  He  is concerned about  the IMO ban  application date  of 2003                                                            
because other  commercial owners that have not been  mentioned might                                                            
be affected by it.                                                                                                              
                                                                                                                                
CHAIRMAN HALFORD  asked how effective  other paints are compared  to                                                            
TBT.  He asked  if TBT had a rating  of ten, whether other  coatings                                                            
now available have the same rating.                                                                                             
                                                                                                                                
MR. KELLY said  other coatings are now available that  are not toxic                                                            
but are as  effective.  Those coatings  are supplied to other  parts                                                            
of the world.   International Paint hopes to get them  registered in                                                            
the near future with the U.S. EPA.                                                                                              
                                                                                                                                
MR. GERSHON  COHEN, a Haines  resident, said  he is Project  Manager                                                            
for the Earth  Island Institute.  He thanked Senator  Leman for this                                                            
legislation  because it represents  a very positive step  toward the                                                            
continued protection  of Alaska's  marine ecosystems and  the people                                                            
who depend upon them.   Over the past several decades, a significant                                                            
amount of research  has been conducted on TBT compounds  and closely                                                            
related  compounds.    TBT  was  first  developed   and  applied  as                                                            
antifouling paint in the  1960s.  It killed a broad spectrum of life                                                            
forms.  It is very persistent  and active at the nanogram level of a                                                            
billionth  of a gram  per liter.   Organisms can  accumulate  TBT by                                                            
consuming food and water.                                                                                                       
                                                                                                                                
MR. COHEN  gave the following  history of  problems associated  with                                                            
TBT paint.  In the 1970s,  concerns about the toxin began to surface                                                            
when it  was demonstrated  to be almost instantly  lethal to  marine                                                            
fauna at doses of eight  parts per billion.  In the early 1980s, TBT                                                            
use  on boats  doing near-shore  activities  was  implicated in  the                                                            
crash  of  the French  oyster  market.  Similar  effects  were  soon                                                            
observed  on the  oyster  industry  in Great  Britain.   The  French                                                            
quickly  adopted national  regulations  banning  the use  of TBT  on                                                            
boats less than 25 meters in length.                                                                                            
                                                                                                                                
A broader prohibition for  TBT use on small vessels was subsequently                                                            
implemented  by the International  Maritime  Organizations.   By the                                                            
mid-1980s,   it   had  been   demonstrated   that   TBT   stimulated                                                            
testosterone  production,   causing  a condition   called  "imposex"                                                            
whereby females began to  take on male sexual characteristics.  This                                                            
abnormal sexual  development leads  to the abortion of eggs  in half                                                            
the females  and, therefore, sterility  for the species,  which soon                                                            
disappears entirely from  the location. Typical of many contaminants                                                            
possessing hormone disrupting  capacity, genetic effects, as well as                                                            
immune and  neurological  impairments, have  been recorded  with TBT                                                            
exposure.                                                                                                                       
                                                                                                                                
Recent research  has clearly  demonstrated  that the impacts  of TBT                                                            
and other  compounds  are not  restricted to  marine invertebrates.                                                             
Marine mammals  and bird populations in Asia are documented  to have                                                            
high  levels  of  TBT.    In  recent  studies   in  the  Journal  of                                                          
Environmental  Science  and Technology,  published  by the  American                                                          
Chemical  Society, high levels  of TBT were  found in the organs  of                                                            
dead bottle-nosed  dolphins stranded along the coast  of Florida and                                                            
Georgia in 1997-98.  Existing  TBT prohibitions, which were intended                                                            
to focus  on near shore  impacts, were no  longer believed  to offer                                                            
adequate protection.   Many species that feed almost  exclusively in                                                            
deep sea areas, such as  sperm whales, are demonstrating high levels                                                            
of TBT contamination also.                                                                                                      
                                                                                                                                
There is  no reason to  believe that people  consuming contaminated                                                             
organisms are not being  similarly affected.  Given TBT's ability to                                                            
persist in bioaccumulates  of the food chain and the fact that large                                                            
vessels applying  TBT paints spend extensive periods  of time in our                                                            
near  shore waters,  it  is prudent  for  the protection  of  public                                                            
health,  our marine  environment,  and our fisheries  industries  to                                                            
expand  the prohibition  of the  use of  TBT to all  ships that  ply                                                            
Alaskan waters.                                                                                                                 
                                                                                                                                
Alternatives  to TBT-based  paints exist today.   The U.S.  Navy and                                                            
Coast Guard, the Alaska  Ferry System, and Alaska's fishing fleet no                                                            
longer use TBT paints.                                                                                                          
                                                                                                                                
A  Coast Guard  representative  recently  informed  him  that it  is                                                            
difficult,  if not impossible, to  find a shipyard in the  U.S. that                                                            
will apply  TBT paint today.  He anticipates  that the full  banning                                                            
of TBT  paint use in Alaska  will stimulate  paint manufacturers  to                                                            
redouble their efforts to find new and better alternatives.                                                                     
                                                                                                                                
He asked the Committee  to add a sunset clause to the bill that sets                                                            
a date  by which all existing  TBT residues  are removed from  ships                                                            
and properly disposed  of, or that hulls be effectively  sealed with                                                            
less toxic  anti-fouling  coatings following  protocols approved  by                                                            
either the EPA or Coast Guard.                                                                                                  
                                                                                                                                
Number 1647                                                                                                                     
                                                                                                                                
CAPTAIN ED PAGE, U.S. Coast  Guard, Juneau, testified that the Coast                                                            
Guard and Navy  are already in compliance and don't  use TBT paints.                                                            
In general,  they are using copper-based  paints and coverings  that                                                            
are slippery  so that organisms  can't adhere  to hulls.  The  Coast                                                            
Guard approaches  any change in international  shipping regulations                                                             
through the  IMO for the sake of consistency  and to ensure  a level                                                            
playing field.  The IMO is meeting next week on this  very issue and                                                            
he expects it will make its law effective in 2003.                                                                              
                                                                                                                                
CHAIRMAN HALFORD  asked if the IMO  has not approved that  provision                                                            
yet.                                                                                                                            
                                                                                                                                
CAPTAIN PAGE  said that is  correct.  He was  not sure that  the IMO                                                            
would  act  on it  next  week.   One  concern  is that  the  "tramp"                                                            
industry,  which doesn't regularly  ply Alaska  waters, may  not get                                                            
the word that quickly.   It might be more difficult for those vessel                                                            
owners to comply in time.                                                                                                       
                                                                                                                                
CHAIRMAN HALFORD asked how the enforcement would work.                                                                          
                                                                                                                                
CAPTAIN PAGE  said the Coast  Guard would enforce  the law if  it is                                                            
eventually  adopted by the IMO.  He  encouraged the State  to use an                                                            
enforcement  regime similar  to the one used  by the IMO in  which a                                                            
certificate  of compliance is provided  by a classification  society                                                            
or the entity that oversees that vessel.                                                                                        
                                                                                                                                
CHAIRMAN HALFORD asked how the State enforces the law now.                                                                      
                                                                                                                                
MS. KREITZER replied that DEC would enforce it.                                                                                 
                                                                                                                                
CHAIRMAN  HALFORD noted that  DEC reported  a zero fiscal note.   He                                                            
asked if that implies DEC doesn't have to do it.                                                                                
                                                                                                                                
SENATOR LEMAN said it might  imply that once the law is in place and                                                            
people know about  it, TBT-based paints won't be used,  and that DEC                                                            
expects very few exceptions.                                                                                                    
                                                                                                                                
CHAIRMAN HALFORD  asked if Senator  Leman has had any response  from                                                            
DEC.                                                                                                                            
                                                                                                                                
MS. KREITZER  said when  the bill  was first  introduced, she  spoke                                                            
with Mr. David Rogers of DEC who said it did not.                                                                               
                                                                                                                                
SENATOR GREEN  asked if it would be appropriate to  wait for the IMO                                                            
to meet before taking action on this bill.                                                                                      
                                                                                                                                
CHAIRMAN HALFORD said he didn't think waiting would hurt the bill's                                                             
chances if the IMO was going to meet in a week.                                                                                 
                                                                                                                                
SENATOR LEMAN said the State has a more ambitious schedule than                                                                 
what the IMO is proposing.  He didn't think the IMO's actions would                                                             
affect what the committee did.                                                                                                  
                                                                                                                                
SENATOR PARNELL concurred with Senator Leman.                                                                                   
                                                                                                                                
MR. JOE LEBEAU, Alaska Center for the Environment, expressed total                                                              
support for SB 266.                                                                                                             
                                                                                                                                
SENATOR PARNELL moved to pass CSSB 266(RES) from committee with                                                                 
individual recommendations.  There were no objections and it was so                                                             
ordered.                                                                                                                        
                                                                                                                                
CHAIRMAN HALFORD adjourned the meeting at 3:55 p.m.                                                                             

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