Legislature(1999 - 2000)

03/20/2000 03:10 PM RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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                                                            
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                                                            
     (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                                                            
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                                                            
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                                                            
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                                                            

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