Legislature(2001 - 2002)
01/17/2001 03:40 PM Senate RES
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ALASKA STATE LEGISLATURE
SENATE RESOURCES COMMITTEE
January 17, 2001
3:40 p.m.
MEMBERS PRESENT
Senator John Torgerson, Chair
Senator Drue Pearce, Vice Chair
Senator Rick Halford
Senator Pete Kelly
Senator Kim Elton
Senator Georgianna Lincoln
MEMBERS ABSENT
Senator Robin Taylor
COMMITTEE CALENDAR
SENATE BILL NO. 16
"An Act regarding oil discharge prevention and cleanup involving
self-propelled nontank vessels exceeding 400 gross registered
tonnage and railroad tank cars and related facilities and
operations and requiring preparation and implementation of oil
discharge contingency plans for those nontank vessels and railroad
tank cars; amending the definition of 'response action' that
relates to releases or threatened releases of oil and thereby
amending the duties and liabilities of response action contractors;
and authorizing compliance verification for nontank vessels and for
trains and related facilities and operations; and providing for an
effective date."
HEARD AND HELD
PREVIOUS COMMITTEE ACTION
SB 16 - No previous action to record.
WITNESS REGISTER
Mr. Larry Dietrick, Director
Division of Spill Prevention and Response
Department of Environmental Conservation
410 Willoughby Ave., Suite 105
Juneau AK 99801
POSITION STATEMENT: Supported SB 16.
Mr. Brian Rogers
Info Insights Task Force
751 Old Richardson Hwy., Suite 235
Fairbanks AK 99701
POSITION STATEMENT: Supported SB 16.
Mr. Breck Tostevin
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Commented on SB 16.
Mr. Jerry Rusher
HC33 Box 2866
Wasilla AK 99687
POSITION STATEMENT: Commented on SB 16.
Mr. Joseph LeBeau
Alaska Center for the Environment
642 S. Alaska
Palmer AK 99645
POSITION STATEMENT: Commented on SB 16.
Phyllis Johnson, General Counsel
Alaska Railroad Corporation (ARRC)
P.O. Box 107500
Anchorage AK 99510
POSITION STATEMENT: Supported SB 16.
Paul Fuhs, Technical Advisor on Marine Issues
No address provided
POSITION STATEMENT: Commented on SB 16.
ACTION NARRATIVE
TAPE 01-01, SIDE A
Number 001
SB 16-OIL DISCH PREVENTION: NONTANK VESSELS/RR
CHAIRMAN JOHN TORGERSON called the Senate Resources Committee
meeting to order at 3:40 p.m. and announced SB 16 to be up for
consideration.
SENATOR PEARCE said she was a member of the steering committee for
the Task Force on Motorized Oil Transport (TFMOT) and the prime
sponsor of SB 273 last year. She gave a heart-felt thank you to
all the other steering committee members who came together for many
long hours and worked together to find consensus solutions to
problems for the state's safety net for marine transportation.
MR. LARRY DIETRICK, Director, Division of Spill Prevention and
Response, said he was addressing them on behalf of Commissioner
Brown, Chair of the TFMOT. He said the goal of SB 16 is simple:
"to protect Alaska's renewable resources and keep Alaska's waters
the cleanest and most pristine in the world by including large
seagoing marine nontank vessels and the Alaska Railroad and Alaska
Safety Net for Oil Spill Prevention and Response."
The TFMOT was commissioned "to work out the details of how to
implement oil spill contingency plans (c-plans) and achieve the
response planning standard in a way that was acceptable to those
who would be affected." Although the requirement for financial
responsibility was made effective last year, Mr. Dietrick said, the
requirement to have an oil spill c-plan to meet the response
planning standard was not and the legislature commissioned the Task
Force through SB 273 and SCR 1 to determine how to implement the
standards and provide opportunities for streamlining them. Those
standards were set out in SB 273 as the "containment and control of
15 percent of the maximum oil capacity of a nontank vessel or train
within 48 hours and cleanup of the discharge within the shortest
possible time consistent with minimizing damage to the
environment."
Nontank vessels were defined as self-propelled vessels over 400
gross tons, not including tank vessels, oil barges, or public
vessels.
MR. DIETRICK said SCR 1 created 23 member task force to ensure
diversity of viewpoints and adequate representation of all groups
to be regulated. Many more people who were not appointed
representatives attended the work group sessions and formal task
force meetings. There were 11 meetings over a five-month period.
Three work groups were created to address specific areas of
concern.
He said that the recommendations of the Task Force are practical
and include implementation measures that use a market-based economy
approach to keep costs down. They are based on Alaska's existing
oil spill response infrastructure and provide maximum flexibility
for meeting the requirements. Private sector initiatives have
already been fostered that significantly increase the resources
that will be brought to bear on a spill. "Alliances between ship
agents, stevedoring companies, and spill response cooperatives are
now being explored to meet response needs and a new marine exchange
covering the entire state of Alaska is being created." The Task
Force unanimously agreed to support 31 separate recommendations and
recommended that they be adopted without amendment since the legal
nuances and details have all been agreed to. He said that the Task
Force recommendations are in the interests of all Alaskans and will
help protect Alaska's natural resources and make the state's spill
response the best in the world.
Number 729
MR. BRIAN ROGERS, Principal and CRO of Info Insights and a Task
Force member, said the process of negotiated rule making worked
very well in this case. The legislation is straightforward, but
the total process is somewhat complex and is designed to address
very different kinds of businesses that are operating in Alaskan
waters, ranging from cruise ships on a fixed predictable course to
spot charter vessels that may announce their arrival only five days
in advance to the Alaska Railroad.
He pointed out that the objectives of the Task Force (on page 8 of
the report) are:
· that this process be realistic - capable of being implemented
within available technology and expertise in a reasonable time
frame;
· that it's effective - providing real protection to the
environment at the level required by law;
· that it is economically feasible - it can be implemented
without imposing unreasonable cost increases on the vessel
owners, operators, or on their customers; and
· that it's flexible - providing for improvements and changes in
methods and requirements to reflect changes in technology,
vessel volumes, tank car trade, expertise, and other
parameters.
Number 858
MR. ROGERS said that one group dealt with the response planning
standard, another with contingency planning, one with prevention
and one with the Alaska Railroad.
The response planning standard in the report calls for vessels to
have boom three times their length and the ability to deploy it.
Cleanup in the shortest time possible means there needs to be a
skimmer appropriate to the type of oil in the area or able to be
deployed to that area within 24 hours.
There are several different options available under contingency
planning. The market approach, that Mr. Dietrick referred to,
attempts to address the different needs of different industrial
groups. Everyone has to file and show proof of financial
responsibility. Every vessel needs to say whom the qualified
individual is that can make decisions that bind the company. Each
vessel will need a response action plan detailing notification
procedures if there is a problem, have a contract with a primary
response action contractor, and a contract with an incident
management team, and comply with federal and international rules.
In lieu of these contracts, vessel owners can show they can respond
themselves with equivalent resources or some combination of
contracts and equivalent resources.
"In addition, to accommodate the different fleets, there is the
option for fleet plans where a group of vessels can band together
to meet the requirements and the development of generic c-plans -
basically a plan that is ready to be activated on the signature of
a vessel owner." This was designed for spot charter, Mr. Rogers
said, in case someone comes in to pick up a load and will be there
in five days and doesn't have time to write a plan. The vessel
agents will develop generic plans that will be ready to be
activated in advance.
MR. ROGERS said that prevention is much more of a challenge.
Due to federal and international preemption, there is not much the
State of Alaska can do. The prevention measures that are called
for in the report are voluntary, but there is a good credit program
to give credit to those vessels that are able to come up with
prevention measures.
The basic recommendation for the Alaska Railroad is that they
undergo c-plan review in the same fashion as other facilities. The
Railroad has assured the Task Force that they will be in a position
to respond within the time line that is laid out in the report.
Number 1032
MR. ROGERS explained the Task Force went through all the
recommendations to figure out which ones needed legislation, which
ones needed regulatory change, and which ones required changes in
processes. The legislation is designed for three things primarily:
· to activate the c-plan process;
· to enable the adoption of the regulations as recommended by
the Task Force; and
· to limit liability for certain participants in the process
(the folks who are arranging for a response and the ones who
are involved in the incident management teams).
He summarized that this legislation uses a market-based approach
that provides opportunities for alternative compliance and is
phased. A rough time-line might be 12 months to adopt the entire
regulatory adoption process for legislation that passes this May.
That would put regulations in effect by June 2002. Vessel owners
would then have six months to prepare their c-plans. At that
point, January 2003, they would have to have the boom and ability
to deploy it for containment. The cleanup equipment, particularly
the high-priced nonpersistent fuel skimmer would have to be in
place would happen by the summer of 2004. He said they are not
asking the nontank vessels to move faster than the tank vessels
did.
Number 1185
MR. ROGERS gave a sectional analysis of the bill.
· Sections 1-3 amend AS 46.03.825, the section that limits the
civil liability of oil response action contractors. The
amendment adds statutory references to the new plans for
nontank vessels, and basically provides the same limitation to
the response action contractors working on nontank vessels
that the response action contractors on tank vessels currently
have.
· Section 4 adds two kinds of services to the response action
that are critical in the nontank vessel arena - incident
management team and response plan facilitator services. The
response plan facilitator is the person who puts together the
generic plan that has everything ready to go for a vessel
that's about to enter Alaska. The indication was that no one
would be willing to perform that function if they might get
some of the liability if there actually were a spill. SB 16
extends the same immunity existing today to those response
plan facilitators and to those who manage the incident.
· Section 5 amends what the legislature passed last year on
proof of financial responsibility for nontank vessels. It
changes the wording of the applicability section from "a
person may not cause or permit the operation of a nontank
vessel" without the financial responsibility to "a person may
not operate a nontank vessel." This wording was recommended
by the Task Force so that it's exactly the same wording
applicable to tank vessels. People know what that means since
it's been out there for a while.
· Section 6 extends the existing innocent passage exemptions to
the requirement for nontank vessel c-plans. A vessel is in
innocent passage if it's not intending to call at an Alaskan
port-of-call, and is transiting state waters under the
Convention on the Territorial Sea and Contiguous Zone. MR.
ROGERS said that the state is prevented from exercising state
jurisdiction over those vessels. This section makes it clear
that the program only extends to vessels that are entering the
waters of the state generally within three miles.
· Section 7 adds the new provisions that require oil discharge
prevention and c-plans for nontank vessels and railroad cars
that are transporting oil. This is the implementation of last
year's legislation in AS 46.04.055(c).
o (f) requires approved c-plans for nontank vessels six
months after the effective date of the regulations
adopted by DEC. Included in those regulations will be
conditional approval of the new c-plans. In other words,
if a c-plan is filed on time, it is contingently approved
by DEC. That way the department can receive all of them
at once, but will be able to stagger the review and
renewal process. He explained that all vessels come in
the first year, but because it's a three-year renewal
cycle, they will be spaced out over that time.
o (g) sets forth the content requirement for the new
nontank vessel c-plans: vessel specific information, a
response plan, and a prevention plan certification
stating that the nontank vessel for which c-plan approval
is made complies with federal and international
organization requirements. The response plan consists of
initial notification procedures in the event of a release
or threatened release, a certification that the applicant
is a member of or has a contract with an oil spill
organization that is an oil spill primary response action
contractor with a response plan approved by the
department that meets response planning standards for the
maximum oil capacity of the vessel. Finally, a
certification requires that the applicant has contracted
with a contractor to provide incident management team
services in the event of a release or threatened release.
o (h) is the alternative section that says if you don't
want to hire a contractor and show evidence that you can
do it yourself or you have equivalent equipment,
personnel, and resources to meet the requirement, you can
show this alternative compliance.
o (i) applies the existing c-plan provisions of AS
46.04.030 to nontank vessels, to nontank vessel c-plans,
and to a person who applies for and holds an approved
nontank vessel c-plan.
o (j)&(k) apply to railroad tank cars that transport oil
and require c-plans to meet the response planning
standard that was adopted. These sections require an
approved plan six months after the effective date of the
regulations (January 2003). Section (k) applies the c-
plan provisions to railroad tank cars, railroad tank car
c-plans, and a person applying for or holding an approved
nontank railroad tank car contingency plan.
o (l) directs DEC to adopt the regulations to implement
this legislation.
· Section 8 creates a new section that authorizes DEC, in order
to assure compliance with the chapter relating to oil
pollution control to "at reasonable times in a safe manner
enter and examine nontank vessels, trains, railroad tracks,
and associated facilities for verification purposes."
· Section 9 requires the lieutenant governor to certify or
revise the statutes regarding the effective dates of the
implementing regulations.
· Section 10 is the immediate effective date of the bill.
Number 1579
CHAIRMAN TORGERSON asked in (j) and (k) if it was his intent to put
these regulations on railroad cars that may be on skids that are
towed around.
MR. ROGERS replied that he understands that the bill applies to
railroad cars, which would not be something on skids, but the
Department of Law might have a different answer.
CHAIRMAN TORGERSON asked why DEC would want to inspect railroad
tracks.
MR. ROGERS answered that the railroad explained to the Task Force
that the dynamic of what causes a spill is the interaction of the
cars, the tracks, and the speed. The condition of the tracks
affects the likelihood of a derailment. Mr. Rogers assumed that
since that is part of the vessel in this case, the legislation
includes the tracks as part of that whole environment that leads to
a spill.
CHAIRMAN TORGERSON said he just wondered about the expertise within
DEC to go and inspect railroad tracks.
Number 1672
SENATOR ELTON applauded Senator Pearce whose efforts started the
process that led to this. He asked if a petroprocessor from
Seattle who transits False Pass to access the Bering Sea and then
leaves the Bering Sea and goes directly back to Seattle would fall
under the provisions of innocent passage.
MR. ROGERS replied that he wasn't an expert on the subject, but if
the vessel is otherwise not going to be entering state waters, if
it's going to be at least three miles off-shore, except for the
transit of Unimak Pass, that vessel would be in innocent passage
and would not be covered by this legislation. However, if the
vessel would call at Dutch Harbor for any purpose, it then is
subject to it, because it is entering state waters.
SENATOR ELTON asked if there was any discussion by the Task Force
on the possible implications this may have for seafood ports. Is
there any anticipation that some vessels, in order to not have to
comply with this, would no longer be calling at Alaska ports for
provisions, fuel, and off-loading product.
MR. ROGERS answered there was discussion about vessels responding
to this by staying further off-shore than they had been which is in
itself a prevention measure. However, he didn't think there was
any testimony or discussion from vessel owners who thought they
would change and not call at Dutch Harbor that currently call there
now. There was some talk of vessels that are currently operating
within three miles, in Norton Sound for instance, that could avoid
the cost of compliance in that sub region by staying further
offshore. They can save costs and the state has the reduced
likelihood of an oil spill by their staying further offshore.
Number 1793
SENATOR LINCOLN asked if there was public comment made during the
process.
MR. ROGERS answered that there was an amazing opportunity for
public dialogue during the process. They insured that all
documents went on the website within 72 hours of the meeting.
Transcripts took a little longer, but they were also on the
website.
SENATOR LINCOLN asked if the recommendations of the public members
were incorporated into the overall plan. She asked him to
highlight some of the major ones that were left out.
MR. ROGERS replied that as a facilitator, he tries to "move away
from who owns what idea." He couldn't tell her who came up with
most of the recommendations.
SENATOR LINCOLN asked him how compliance will work.
MR. ROGERS replied that they didn't get into the mechanics within
the department, but the Division of Spill Prevention and Response
was part of the process and compliance clearly falls within that
group's requirements.
SENATOR PEARCE noted that although there were no members from the
Coast Guard in the audience, they had been with the Task Force all
through the process and had been very helpful.
MR. BRECK TOSTEVIN, Department of Law, announced that he would
answer questions and elaborated that the last legislature enacted a
definition of "railroad tank car" in AS 46.04.900(28) as being
"rolling stock used to transport oil in bulk as cargo by rail," so
there is the concept that the tank car has to be on rail. He also
explained that "innocent passage" is an international law concept
which allows a foreign vessel to travel through another country's
waters as long as the vessel is transiting through. It can stop,
but it has to be expeditious in moving through the country's
waters. It can't engage in activities such as fishing and can't
call on ports. SB 273 extended the international innocent passage
concept to all vessels, both U.S. and foreign, that aren't fishing
or transferring fuel, etc.
SENATOR ELTON asked if innocent passage covers a vessel that leaves
the Port of Seattle, transits through the Aleutians to the Bering
Sea to catch and process fish and then returns to the same port, or
whether innocent passage only cover vessels that are going from
port A to port B.
MR. TOSTEVIN answered that you can't call on a port in Alaska.
Leaving a port outside Alaska and transiting through waters in
Alaska to get to a port outside Alaska is considered innocent
passage. A vessel can't anchor or call on a port.
CHAIRMAN TORGERSON asked if the Coast Guard would enforce this.
MR. TOSTEVIN answered his understanding is that DEC and the Coast
Guard have a memorandum of understanding in which they share
information and cooperate with each other.
MR. JERRY RUSHER, Wasilla resident, said he was concerned with the
180-day time frame for applications on page 15.
CHAIRMAN TORGERSON explained that this section meant the law would
go into effect 180 days after the adoption of the regulations.
MR. RUSHER said he was interested in the time frame out to 2003.
CHAIRMAN TORGERSON explained Mr. Rogers' testimony on the time
frame.
MR. JOSEPH LEBEAU, Alaska Center for the Environment (ACE), thanked
all the members of the industrial community who attended the Task
Force meetings.
TAPE 01-01, SIDE B
MR. LEBEAU commented that a 15 percent response-planning standard
is not enough.
MS. PHYLLIS JOHNSON, Alaska Railroad Corporation (ARRC), supported
SB 16. She thought there were several items in the bill that have
the potential for conflict in the federal/state relationship. She
said ARRC is okay with the timeline, but "the feds are a little
touchy about jurisdictional disputes." A couple of federal laws
require common carriers to accept a cargo that is exempted.
Another place for potential conflict is the right to enter and
examine the railroad properties - track and other facilities. The
Federal Railroad Administration, which is charged with trying to
ensure the safety in rail operations, has a lot of rules and
regulations about when you can walk on a railroad track without
certain kinds of protection. She thought language, such as
"consistent with FRA safety standards" could be added in
regulation.
Number 2216
SENATOR PEARCE asked if jet A is a hazardous material under the
Hazardous Materials Transportation Act (HMTA).
MS. JOHNSON responded that petroleum and petroleum products are
hazardous materials within the definition in the HMTA. Not all
products are included under other acts.
SENATOR PEARCE asked how the state was able to regulate the
Transalaska Pipeline System (TAPS) under our spill laws.
MS. JOHNSON said she would look into getting the answer for her.
SENATOR PEARCE said she didn't see how this is different from TAPS.
Number 2150
MR. PAUL FUHS, technical advisor to the Task Force on marine
issues, clarified that to get the cost savings, the Task Force
relied a lot on affidavits. People swear that they have a spill
response contractor and there are pretty severe criminal penalties
for falsifying an affidavit. A company would also lose it's c-plan
until the problem was fixed.
He noted that military vessels are not included in this bill,
unless they are involved in commerce. Alaska's marine highway
system is covered by it, but the Coast Guard and military vessels
are not.
MR. FUHS also noted that there is a letter of intent that covers
implementation details that might not be covered in regulation.
SENATOR ELTON asked if there was anything in the legislation that
contravenes any information in the packet.
MR. FUHS replied that the legislation was considered by the group
and was recommended as part of the packet.
CHAIRMAN TORGERSON said they would hold the bill until the fiscal
note came in and adjourned the meeting at 4:38 p.m.
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