SENATE JUDICIARY COMMITTEE February 3, 1997 2:10 p.m. MEMBERS PRESENT Senator Robin Taylor, Chair Senator Drue Pearce, Vice-chair Senator Mike Miller Senator Sean Parnell Senator Johnny Ellis MEMBERS ABSENT None COMMITTEE CALENDAR SENATE BILL NO. 39 "An Act relating to hazardous chemicals, hazardous materials, and hazardous waste." HEARD AND HELD PREVIOUS SENATE COMMITTEE ACTION SB 39 - No previous Senate committee action to report. WITNESS REGISTER Senator Loren Leman Alaska State Capitol Juneau, Alaska 99801-1182 POSITION STATEMENT: Sponsor of SB 39 Marie Sansone Assistant Attorney General Department of Law P.O. Box 110300 Juneau, AK 99811-0300 POSITION STATEMENT: Answered questions on SB 39 Chris Kennedy Assistant Attorney General Department of Law 1031 W 4th Ave., Suite 200 Anchorage, AK 99501-1994 POSITION STATEMENT: Commented on Sections 1 and 14 of SB 39 Penny Goodstein ARCO P.O. Box 100360 Anchorage, AK 99510 POSITION STATEMENT: Supports SB 39 Chet Weger Assistant State Fire Marshall Department of Public Safety 5700 E. Tudor Rd. Anchorage, AK 99507-1225 POSITION STATEMENT: Supports SB 39 Rita Venta Anchorage Fire Department 1301 E 80th Ave. Anchorage, AK 99518 POSITION STATEMENT: Supports SB 39 Gale Foster Inspector Anchorage Fire Department 1301 E 80th Ave. Anchorage, AK 99518 POSITION STATEMENT: Commented on SB 39 ACTION NARRATIVE TAPE 97-4, SIDE A Number 000 DUE TO TRANSMISSION DIFFICULTIES, NO TAPE IS AVAILABLE FOR THIS MEETING. SB 39 HAZARDOUS CHEMICALS, MATERIALS, AND WASTE  CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 2:10 p.m. Senators Taylor, Miller and Parnell were present. The first order of business before the committee was SB 39. SENATOR LOREN LEMAN , sponsor of SB 39, gave the following overview. Businesses are currently required to report virtually the same information about hazardous chemicals, materials and wastes in four different formats to four different entities. SB 39 eliminates three of those formats and one entity. It revises the quantities of reportable materials to be consistent with recent changes to the classification system in federal law. The elimination of placarding will allow businesses to file reports using an electronic format which should be easier and make the information more readily accessible. Sections 1, 12, and 14 were included as a response to the Toksook Bay lawsuit and protect the state from strict liability for oil spills or other environmental releases. CHAIRMAN TAYLOR noted there are two sectional analyses, dated 1/17/96 and 1/30/97. Number 091 CHAIRMAN TAYLOR concluded, after a review of this issue last year, Alaska to have the most convoluted, multi-layered system of hazardous materials reporting requirements. The local emergency planning committees (LEPCs), that comprise the first layer, are required to have 17 members which makes group activities difficult to coordinate. The entire structure appears extremely cumbersome to use in the design of a prompt response system. SENATOR LEMAN stated the committees can have up to 17 members, but are not required to. CHAIRMAN TAYLOR asked about the penalties for eliminating a federally mandated program and referred to AS 11.04.046. That statute provides that any person may commence a civil action against the administrator of state provision (c) or may propose or bring a civil action against the administrator, a state governor, or a state emergency response commission for failure to provide a mechanism for public availability of information. He assumed that information to be the data sheets on chemical storage. Section (d) allows a person to sue a state governor or state emergency response commission for failure to respond to a request for Tier II information within 120 days after receipt of a request. SENATOR LEMAN explained the intent of SB 39 is not to eliminate reporting, but to make the requirements as user friendly as possible while continuing to protect the public's interest in information required under federal law. The purpose of the LEPCs is to have a plan in place so that when an emergency occurs, people know how to respond quickly and appropriately. LEPCs are responsible for the plans; the front-line work is often performed under contract. Number 185 CHAIRMAN TAYLOR remarked many plans have never even been approved and many oil storage delivery businesses have created their own response plans. He added the plans are not nearly as useful as the people who are at the scene when an emergency occurs. SENATOR LEMAN believed some of the information compiled by LEPCs is useful to communities. Plans often include balloon modeling to determine what areas are, and will be, affected and evacuation procedures in case of a large scale chemical leak. MARIE SANSONE , Assistant Attorney General, Department of Law, submitted two amendments proposed by the Department of Environmental Conservation. SB 39 eliminates the State Fire Marshall's placarding program and redesigns the reporting procedure. The amendments are technical in nature, and further clarify which entities will be responsible for collecting and distributing the compiled information. SENATOR LEMAN agreed the amendments will correct drafting oversights. Number 293 SENATOR PARNELL moved to adopt Amendment #1 which reads: Page 4, line 8: Amend the section heading as follows: Sec. 29.35.530. Duties of  municipality [DIVISION OF FIRE PREVENTION]. Page 4, line 8: Following "(a) The": Delete " Department of Environmental Conservation " Insert "municipality" Page 4, line 10: Following "under AS 29.35.500" Delete "or of a municipality" Page 4, line 14: Following "inventory forms" Insert "approved by the Alaska State Emergency Response Commission" There being no objection, Amendment #1 was adopted. SENATOR PARNELL moved to adopt Amendment #2, that reads: Page 6, line 31 to page 7, line 1 Following "available for distribution": Delete "the Department of Environmental Conservation" Insert "to municipalities" There being no objection, Amendment #2 was adopted. CHRIS KENNEDY , Assistant Attorney General, testified on Sections 1 and 14 of SB 39. Those sections are identical to an amendment offered to similar legislation last year and were proposed by the Department of Education as part of the Administration's response to problems discovered by the Toksook Bay law suit. The law suit was filed against the state by 500 plaintiffs after an oil spill occurred on a former BIA school site. A permanent fuel pipe, installed by the BIA, gave way shortly after the school was transferred from BIA to state ownership. Historically, the state and REAAs have strict and joint liability for 100 percent of any damages from a spill of this kind, regardless of fault. Section 1 eliminates strict and joint liability for damages; however, the state and REAAs would continue to be liable under common law for negligence. Section 1 is aimed at the unique circumstance when the state inherits schools with potential latent problems. Section 14 defines the applicability of Section 1, and establishes that it only applies to future claims. CHAIRMAN TAYLOR asked Mr. Kennedy if he supported those two provisions. MR. KENNEDY replied that he did. Number 341 PENNY GOODSTEIN , with ARCO Alaska, testified in strong support of SB 39 because it helps streamline the inventory reporting process. CHET WEGER , Assistant State Fire Marshall, testified in support of SB 39. The current placarding program is not enforceable given available resources. Over the past three years, only 15 sites have been placarded; the majority did so voluntarily through Alyeska Pipeline. The placarding program puts an added responsibility on communities that serves no useful purpose in many instances. He added the Soldotna Fire Department believes subsections (D) and (E) in Section 9 conflict with the federal requirement to report highly toxic substances, such as fertilizers, fumigants, and pesticides, and should not be enacted. CHAIRMAN TAYLOR stated Senator Leman's staff would check on subsections (D) and (E), and thanked Mr. Weger for bringing the issue to the committee's attention. RITA VENTA , Anchorage Fire Department, testified in support of SB 39. GALE FOSTER , inspector for the Anchorage Fire Department, expressed concern with Section 5, lines 24 and 25, which eliminates the requirement to report the storage of compressed gases. She asked the committee to reconsider the elimination of that requirement, as well as Section 9 (D) and (E), since the elimination of those reporting requirements makes SB 39 less restrictive than federal law. CHAIRMAN TAYLOR repeated Senator Leman's staff will review those sections to determine whether they conflict with federal law. He did not think federal law requires reporting of compressed gas inventories, in which case, SB 39 would be consistent with federal law. MR. WEGER asked for information about the amendments that were adopted. CHAIRMAN TAYLOR informed teleconference participants the amendments were submitted by the Department of Environmental Conservation and were technical clean up amendments to make the various provisions of SB 39 consistent. CHAIRMAN TAYLOR announced his intention to have a committee substitute prepared and distributed prior to the next hearing. SENATOR LEMAN confirmed he would check into the requirement for compressed gases, but clarified that SB 39 does not preclude municipalities from requiring such reporting, it merely removes the requirement from state law. Number 455 SENATOR PARNELL asked representatives of the Department of Law to describe the scope of the state's liability under SB 39. MR. KENNEDY explained the state will remain liable for its own negligence under common law, but only for the percent of damage it is responsible for. MS. SANSONE agreed and noted AS 46.03.822 (page 1, line 10) is the strict liability statute. She added a negligence action is more difficult to prove because one must establish the state's responsibilities and it would be subject to state discretionary immunity. SENATOR PARNELL asked if the sovereign immunity principles would still apply. MS. SANSONE replied affirmatively. CHAIRMAN TAYLOR asked for details about the Toksook Bay oil spill. MR. KENNEDY replied the fuel line that broke was about 30 years old. The state took ownership of the property about one year before the fuel line corroded. CHAIRMAN TAYLOR commented under most proposals currently before the Legislature, the statute of limitations would run out in 15 years so no one could be sued anyway. MR. KENNEDY explained the title transfer process also complicated the lawsuit. The state settled and received some financial concessions from the federal government. CHAIRMAN TAYLOR adjourned the meeting at 2:43 p.m.