SENATE BILL NO. 121 "An Act relating to pollutants; relating to perfluoroalkyl and polyfluoroalkyl substances; relating to the duties of the Department of Environmental Conservation; relating to firefighting substances; relating to thermal remediation of perfluoroalkyl and polyfluoroalkyl substance contamination; and providing for an effective date." 9:05:59 AM Co-Chair Bishop relayed that it was the second hearing for SB 121. It was the committees intention to hear a presentation from the Department of Environmental Conservation (DEC) and then hear from the sponsor. 9:06:49 AM TIFFANY LARSON, DIRECTOR, SPILL PREVENTION AND RESPONSE, DEPARTMENT OF ENVIRONMENTAL CONSERVATION (via teleconference), discussed SB 121. She defined that polyfluoroalkyl substances (PFAS) was a family of 5,000 to 10,000 manmade chemical compounds that were carbon-bonded to fluorine, which was one of the strongest bonds known to exist. She continued that PFAS were water, oil, and heat resistant, and water soluble. Additionally, PFAS persisted in the environment and bioaccumulated and magnified. She stated that while the department had some concerns with the bill, DEC appreciated the sponsor Kiehl bringing attention to the very important topic. Ms. Larson discussed what DEC had done in the absence of legislation to protect the environment, which included listing PFAS and Perfluorooctanoic acid (PFOA) as hazardous substances. She cited that in 2016, Alaska was one of the first states to promulgate soil and groundwater cleanup levels for two PFAS compounds. In 2019 the department incorporated (through its technical memo) the use of a lifetime health advisory at of 70 parts per trillion for PFOA and PFOS, individually or combined. Since 2018, DEC and the Department of Transportation and Public Facilities (DOT) had been voluntarily testing drinking water wells at airports required to use aqueous reforming foam. As part of the effort, there were procedures developed for alternate drinking water when needed. Ms. Larson asserted that DEC was actively working on the issue and had published a strategic road map in fall of the previous year. There was a science advisory board reviewing documents for PFAS and PFOA that would likely set a lower lifetime health advisory. The draft report was expected to be released the following May and was expected to reduce the lifetime health advisory by an order of magnitude, at or near 7 parts per trillion or lower. Ms. Larson noted that in fall of 2022, the Environmental Protection Agency (EPA) expected to issue a proposed rulemaking for the National Primary Drinking Water Act regulations for PFOA and PFAS, with the final rule in 2023. In winter of the current year, the EPA expected to publish its ambient water quality criteria and begin identifying PFAS in categories versus regulating in a compound-by- compound basis. She reiterated that there were 5,000 to 10,000 compounds in the PFAS family, so science was moving towards categorical regulation. In the summer of 2023, the EPA would have a final rulemaking, designating PFOA and PFAS in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), known also as Superfund. 9:10:27 AM JENNIFER CURRIE, CHIEF ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF LAW (via teleconference), wanted to discuss four legal issues with the bill. She highlighted that there were two distinct ways that DEC could identify a hazardous substance under state law, by the definition of hazardous substance or by listing a hazardous substance in its promulgating regulation. She recounted that in instances where DEC had found a substance as hazardous according to definition and not by regulation, there had been responsible parties that had tried to eliminate liability by arguing the substance was not in regulation as hazardous. She suggested that listing hazardous substances in statute would lead to responsible parties trying to avoid liability by claiming that a valid determination of another hazardous substance must be in statute. She discussed DEC's required disposal of PFAS as proposed in the bill and cited the potential creation of contaminated sites that could cause future state liability. She mentioned the federal governments sovereign immunity from lawsuits and the difficulty of obtaining a waiver. She contended that any provision that named the federal government under state statute would be subject to challenge unless there was a valid waiver from Congress, and it was likely the state would have to enter into costly litigation to hold the federal government liable. Ms. Currie continued her testimony. She pointed out that it was unclear as to whether the bill declared PFAS substances as hazardous substances under state law, as it was only referred to as PFAS substances. She noted that DEC's liability statues only imposed joint and several liability upon the release of hazardous substances. 9:13:37 AM Ms. Larson discussed challenges that existed with DEC in implementing the bill. She mentioned the lack of a database for the firefighting foam (containing PFAS) used in the state. She mentioned potential liability associated with disposal of PFAS. She asserted that there was no mechanism for DEC to accept, handle, or dispose of any amount of PFAS. She asserted that the bill would require DEC to apply unnecessary and expensive administrative procedures without changing the monitoring requirement. She stressed that DEC had and used the authority to require responsible parties to respond to PFAS contamination, and to regulate hazardous substances. She thought to statutorily declare any substance as a pollutant could jump ahead of the science, and could also take the decision-making out of the hands of DECs technical experts. Ms. Larson relayed that the department understood the publics concern regarding PFAS, and the desire to have clear lines of safety. She continued that the scientific community was still working to determine the critical levels of PFAS in food, water, and bodies, and she emphasized that the bill would not make the process happen any faster. Senator Wilson wondered if the committee could get Ms. Larson's and Ms. Currie's testimony in writing. Co-Chair Bishop requested the testimony in writing. 9:16:53 AM Senator Olson thought the state was facing a significant chemical issue. He remarked that he liked the fact that the state had firefighting foams that were effective. He asked Ms. Larson about any alternatives she would propose in order to mitigate damage to future generations from the use of PFAS. He referenced the past use of asbestos. Ms. Larson thought Senator Olson was asking if there was an alternative firefighting treatment substance. Senator Olson asked what Ms. Larson's alternative was to the proposed legislation. Ms. Larson did not have an alternative to put forward, but thought it was important that the state fell in line with science and gave researchers the ability to find the best way to regulate the substances. She reiterated that there were somewhere between 5,000 and 10,000 compounds in the PFAS family and contended that if the state continued to address the issue on a compound-by-compound basis, the conversation would last for generations. She asserted that the scientific community was putting forward a concentrated effort towards investigating the substances, and one of the efforts was to categorize the substances into a category based on research. She thought the best path forward was to follow the science and allow the substances to be categorized. Senator Olson mentioned the sovereign immunity and differences between the state and federal levels of government. He asked Ms. Currie about her area of law expertise. Ms. Currie stated she had been practicing law in the Department of Law's Environmental Section for 17 years, prior to which she had practiced environmental law for 5 years and worked in litigation for approximately 7 years. Senator Olson asked Ms. Currie what she perceived as the best public policy pathway to protect the public from PFAS. Ms. Currie was prepared to speak to legal issues but declined to address questions related to policy and thought the agency could better address the topic. Senator Olson observed that people who had voiced opposition to the bill had made it apparent that there was no alternative other than changing statute. He emphasized the importance of addressing the problem. 9:21:41 AM Senator Wielechowski heard DEC say that PFAS was listed as "hazardous" by the state. He asked what hazards the department had found were associated with exposure to PFAS. Ms. Larson relayed that once the department would take the human health toxicological data and list PFAS as a hazardous substance, it would allow the department to regulate the substance and talk about ultimate disposal options. Senator Wielechowski relayed that he was trying to gauge how hazardous the department believed PFAS to be and what kind of human health problems exposure caused. Ms. Larson did not have a list of potential health problems caused by exposure to PFAS. She detailed that DEC used the EPAs and Agency for Toxic Substances and Disease Registrys assessments. She offered to provide a follow-up in writing. Senator Wielechowski assumed that the department had listed PFAS as a hazardous substance and would be interested in knowing what the department believed the hazards to be. He mentioned the concern expressed over AS 46.033.45 (b) by the Department of Law, in that the department could get potentially involved in litigation with the federal government. He asked what agencies of the federal government required release of a fire-fighting substances containing PFAS. Ms. Larson believed the Federal Aviation Administration (FAA) required testing of PFAS substances at federally certified airports. Senator Wilson asked about current state mapping of PFAS- contaminated sites. Ms. Larson stated that there was a map published on the DEC website that identified all contaminated sites. Upon reporting, the sites were added to the database, and there was 100 percent mapping of known sites. Senator Wilson asked about the sites that were not known and asked for an estimation of the ratio of known to unknown sites. Ms. Larson could not speculate about unknown sites. 9:26:02 AM SENATOR JESSE KIEHL, SPONSOR, appreciated the conversation and DECs contribution to the discussion. He asserted that DEC had made some contributions over the years and the problems that the state had arose from two things. He asserted that the levels that DEC had set (for two chemicals only) were set at a much higher level than was safe. He agreed with a previous testifier from DEC who testified that the best was to protect health was to list thousands of the chemicals by class at lower levels, but the bill did not do so. He emphasized that the research was abundantly clear regarding PFAS substances, and there were still some questions about a class. The bill involved substances about which there was no question. Senator Kiehl thought it was important to note that nothing in the bill would prevent DEC from setting lower limits, nor from regulating classes of chemicals. Co-Chair Bishop thought he had heard Ms. Larson say that by May it appeared the level would go from 70 parts per million to 7 parts per million. Senator Kiehl deferred to DEC in predicting what the EPA would do. He noted that the bill proposed to set limits for the two substances and 8 parts per million and 16 parts per million as the highest amounts the state could allow. He cited that research showed with even more risk the limits could go lower. Senator Kiehl objected to DEC's notions that the legislature should never declare anything hazardous by statute, which he thought the legislature did all the time. He cited that the DEC statutes declared crude oil (in uncontrolled release the environment), DDT, and other pesticides as hazardous. He emphasized that the bill did not propose a new or novel approach. He was sure that potentially responsible parties might come to court with an argument about other pollutants as the Department of Law had suggested. He thought the department would also say that the arguments had been unsuccessful in the past. He deferred to the department regarding the history of litigation. 9:30:15 AM Senator Kiehl addressed the question of whether the bill should speak to federal agencies that required the releases being jointly and severally liable. He noted that the subject had been vigorously discussed in the Senate Resources Committee, and members of the committee had felt strongly that the party that required spilling of the substance into the environment should share joint and several liability. The provision did not reduce the states ability to recover the costs of clean drinking water for Alaskans from other parties. He referenced the committee addressing lawsuits and emphasized that the provision in SB 121 was not significantly different than many things the legislature had done in challenging wrongdoing by the federal government. Senator Kiehl summarized that there were other important provisions in the bill that would not be solved when the EPA got around to a more protective health standard. He mentioned protection for local fire departments and their liability, and the phase-out for the oil and gas industry. He referenced Senator Olson's remarks about safe replacements for fire-fighting foams for everything save for the oil and gas industry. Senator Kiehl reminded that the bill gave the fire marshal the ability to only trigger the firefighting foam phase-out when there was a safe alternative available. He discussed the up to 25 gallons of substance take-back and provide a way for small communities to get rid of the foam. He emphasized that the state had a lot of PFAS foam. He mentioned the large amounts of PFAS that DEC had warehoused at airports. Co-Chair Bishop set an amendment deadline of Friday April 22, at five oclock. SB 121 was HEARD and HELD in committee for further consideration.