Legislature(1999 - 2000)
03/20/2000 03:10 PM RES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SB 273-OIL SPILL RESPONSE; NONTANK VESSELS & RR CHAIRMAN HALFORD called the Senate Resources Committee meeting to order at 3:10 p.m. and announced SB 273 to be up for consideration. He announced the committee already adopted a committee substitute (CS). SENATOR TAYLOR moved to adopt Amendment 1. SENATOR GREEN objected for an explanation. SENATOR PEARCE explained there was some concern that the timing to put regulations for the contingency plans in place was too short. To remedy that concern, the date of June 1 was changed to November 1 on page 1, line 9 following the word "effectively." In addition. that date change was made throughout the bill. The second change was made on page 2, line 7, in response to questions about where a vessel that had persistent product, such as fuel or in bulk, or nonpersistent product, would fall under the bill. Following the word "greater," new language was added that reads: (C) Both persistent product, as fuel or in bulk, and nonpersistent product at the applicable financial responsibility rate established in (A) or (B) of this paragraph for the storage capacity of the vessel for persistent product or nonpersistent product that predominates on the vessel. She summarized that the vessel owner would determine which category applies depending on the predominant fuel on board. This was worked out with the Department of Environmental Conservation (DEC) and some of the folks who would be affected by the bill. SENATOR PEARCE said that she and Senator Taylor are working on language to limit a portion of the liability of the response action contractors, such that in a neg/reg process they could possibly become contingency plan holders themselves, which should streamline the whole process dramatically. That change will take some liability changes. She requested that the bill be moved out of committee while they continue working on that liability language. SENATOR PEARCE said a number of shippers have said the bill is not necessary so she would like to enter into the record the first paragraph of a letter dated February 22, 2000 from the Commander of the U.S. Coast Guard, Officer in Charge of Marine Inspections for Southeast Alaska, R.C. Lorigan, to NorthStar Maritime in Anchorage, acting as agents. The same letter went to other organizations. She read: I am writing this letter to express my concern about the increased incidents that deep draft vessel operators failing to comply with the navigation safety regulations contained in 33 CFR 64.33. Specifically, in the course of routine boardings, my inspectors have noted that vessels have navigated far within the internal waters of Southeast Alaska with inadequate charts. This poses a significant risk to safe navigation and protection of the pristine Alaska marine environment." SENATOR PEARCE said this letter and other actions the Coast Guard has taken in Southwest Alaska make it clear to her that ships are navigating in Alaskan waters that the Coast Guard doesn't consider to be safe. That's one reason she thought ships that come into our waters should have to show financial responsibility and have contingency plans in case they end up on the rocks as they, unfortunately, all too often do. At members' request, SENATOR PEARCE offered to provide a copy of Officer Lorrigan's letter to them. SENATOR TAYLOR said he knew the U.S. Supreme Court ruled on Washington tanker regulations. He asked if Senator Pearce addressed that. Number 450 SENATOR PEARCE replied that it's her understanding that the Washington law that was thrown out had to do with other than protection of the state's waters. The contingency plans (CP) and financial responsibility areas of Washington's laws were not thrown out by the courts. The Supreme Court said Washington could not get into the business of trying to be the entity that decides how many people must be on the bridge of a ship, what language they speak, and what bridge accommodations there had to be. Bridge management is not something that a state can push. CHAIRMAN HALFORD said he just read the decision and thinks there is a bigger problem but he doesn't know that it's laid out at this point. She said that DEC looked at it and doesn't believe Alaska's contingency planning regulations nor the financial responsibility regulations would be impacted by that decision and certainly not in the scope of this bill. SENATOR TAYLOR asked if other provisions of Alaska law may be impacted by the decision. SENATOR PEARCE said she doesn't know whether any of the provisions of Alaska's tanker laws are going to be impacted. Under state law, there are no requirements for bridge management. One of the concerns after the Exxon Valdez spill was whether the number of crew members onboard was too small to operate a ship that size. At that time, the number was down to about 18 onboard; now it is up to 22. When those ships were first operated, 27 people were onboard. The Exxon Valdez didn't have a third officer. Those are the sorts of things that can't be required under state law. Number 900 SENATOR TAYLOR said he is considering amending page 5, line 4 to change the definition of "nontank vessel" from 300 gross tons to 400. He asked what types of vessels would be excluded or included. CHAIRMAN HALFORD asked if a Coast Guard person was available to tell them if there is another classification that would make sense. SENATOR PEARCE responded that the original number was chosen to comply with the size the State of Washington used in its law. That way, ships that travel in Washington waters would then be covered when they come into Alaskan waters. The Coast Guard uses gross tonnage as opposed to displacement or other ways you can use to measure the bulk of a ship. If the definition is changed to 400 gross tons, she is not familiar with how many ships would be excluded. SENATOR TAYLOR asked if anyone could give a ballpark idea of the difference in size between a 300 and 400 gross ton vessel. MR. HANS ANTONSON, Southeast Sea Pilots Association, responded that in many instances, the gross tonnage doesn't reflect the actual size of the vessel. Small vessels can have a greater gross tonnage because of the way the space is divided up. Passenger vessels can be affected by design features, such as whether the cabins open to the outside deck or an inside corridor. SENATOR PEARCE noted that the regulations that were overturned by the Supreme Court include crew training, English language proficiency, navigation watch requirements, accident reporting, and containment boom requirements for some tankers. She said that her understanding is that the basis for contingency plans and the ability to clean up petroleum spills will not be affected by this federal decision. SENATOR GREEN asked Senator Pearce if she believes the scope of the ruling is limited by paragraph 2. SENATOR PEARCE replied that she was reading from an article, not from the opinion itself. Intertanko actually sued on the points it thought the Coast Guard had primacy over, not Washington State. The issue of who has primacy is clear under this decision. Alaska laws don't require drug and alcohol testing, although the U.S. Department of Transportation requires testing on the tankers. Proving financial responsibility for a spill and requiring a contingency plan are not the issues that Intertanko had thrown out of the federal courts. It is possible that Intertanko will sue over some of the other requirements in the future. She said she wouldn't discount that the industry worldwide will try to get out from under any regulations it can. That doesn't mean we shouldn't try to protect our waters. CHAIRMAN HALFORD commented that booming is one of the things that's not mentioned in that paragraph. SENATOR PEARCE responded that the article refers to booming during a transfer. She didn't know where in Washington state ships do lightering. She said she would be surprised if the Coast Guard didn't require booming when there was lightering anyway. SENATOR PEARCE repeated that DEC looked at the opinion and doesn't believe it will affect any of our state laws. CHAIRMAN HALFORD announced a brief at-ease at 3:32 p.m. Shortly after, he called the meeting back to order. COMMISSIONER MICHELE BROWN, DEC, testifying via teleconference, announced that she was available to answer questions. CHAIRMAN HALFORD asked why a distinction is made at 300 tons and whether another Coast Guard category is close to that but larger. MR. BRECK TOSTEVIN, Assistant Attorney General, Department of Law, said his understanding of the 300 gross ton distinction is that it was used by the states of Oregon, Washington, and California in their nontank contingency planning legislation. Those states, in turn, relied on that distinction based on the Coast Guard, which used 300 gross tons as a regulatory threshold. Ships above that size have to meet various requirements. CHAIRMAN HALFORD asked what provisions of the current legislation are brought into question by the Supreme Court opinion. MR. TOSTEVIN explained that the current legislation would not be affected. Contingency planning requirements and cleanup equipment were not addressed in the decision. The Supreme Court focused on vessel design, equipment, manning, qualifications of the crew, and navigation. He didn't think that decision affected current Alaska laws either. He thought that DEC, in implementing the contingency plans, will be mindful of the uniformity requirements and the Coast Guard regulations. The Supreme Court did say state liability laws can be more stringent than federal law. CHAIRMAN HALFORD said the one thing that might be in question is the equipment requirements that are tied to the spill response capability. MR. TOSTEVIN said that the Supreme Court was focused on requirements of vessel design. For example, Washington required that two [indisc.] be onboard while the Coast Guard only required one. The Supreme Court said there was no uniformity and that states could not change that standard. Washington has contingency plan requirements regarding the kind of cleanup equipment that must be available. That was not challenged in the Washington case. Number 1400 SENATOR TAYLOR moved to adopt Amendment 1 which reads: A M E N D M E N T 1 OFFERED IN THE SENATE TO: CSSB 273( ), Draft Version "D" Page 1, line 9, following "effective": Delete "June 1" Insert "November 1" Page 2, line 3, following "(A)": Insert "only" Page 2, line 5: Delete "and" Page 2, line 6, following "(B)": Insert "only" Page 2, line 7, following "greater": Insert "; and (C) both persistent product as fuel or in bulk, and nonpersistent product, at the applicable financial responsibility rate established in (A) or (B) of this paragraph for the storage capacity of the vessel for persistent product or nonpersistent product that predominates on the vessel" Page 2, line 10, following "effective": Delete "June 1" Insert "November 1" Page 2, line 23, following "effective": Delete "June 1" Insert "November 1" CHAIRMAN HALFORD asked if there was any objection to the adoption of Amendment 1. There were no objections and it was so ordered. SENATOR TAYLOR moved to adopt Amendment 2, which would delete "300" and insert "400" on page 5, line 4. SENATOR PEARCE explained that 300 gross tons was chosen because it is consistent with the rest of the West Coast and with the Coast Guard threshold. She didn't know how many ships will be left out of the requirement if it is changed to 400 but the ships that have been involved in the latest groundings in our state would not be excluded from compliance because of this change. SENATOR TAYLOR said his first thought was to go to 500. He wanted to go to a number that wouldn't capture a whole bunch of little guys - like packers and tenders in the fishing fleet. He said he is willing to do more research on that number and provide examples of vessels that would be excluded. CHAIRMAN HALFORD noted that if the same vessel can fall between 100 and 1000 gross tons based on whether the cabin doors open in or out on deck, this standard is strange. SENATOR PARNELL said he would vote against the bill because he wants to know what the impact is on specific ships. A roll call vote was taken on Amendment 2. SENATORS HALFORD, KELLY, GREEN, TAYLOR, and MACKIE voted yea; SENATOR PARNELL voted nay. The amendment passed five to one. SENATOR TAYLOR moved to pass CSSB 273(RES) from committee with individual recommendations. There were no objections and it was so ordered.