Legislature(1993 - 1994)

02/22/1994 01:36 PM House FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
  SENATE BILL NO. 178                                                          
                                                                               
       "An  Act  relating  to  civil  nuisance   actions;  and                 
       providing for an effective date."                                       
                                                                               
  Representative Therriault  provided members with  Work Draft                 
  the work draft substantially narrows the scope of the  bill,                 
  in order to address concerns expressed in previous hearings.                 
  He summarized changes made by the work draft.  He noted that                 
  the legislation would  be limited in  effect to those  under                 
                                                                               
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  air, water or solid waste discharge  permits.  If a facility                 
  has  acquired  a  permit  subject  to continuing  compliance                 
  monitoring,  periodic  review  by  the  issuing  agency  and                 
  renewal on a  periodic basis than  a nuisance lawsuit  would                 
  not  be  allowed.   The  legislation  contains  an immediate                 
  effective  date.    Section  3  would make  the  legislation                 
  retroactive to any  action currently  under litigation  that                 
  has not come to a final judgement.                                           
                                                                               
  FLORIAN SEVER, SITKA testified against CSSB 178 (JUD) am(efd                 
  fld),  via  the  teleconference  network  from  Sitka.    He                 
  asserted  that the  legislation works  against the  public's                 
  interest.  He  maintained that the legislation  infringes on                 
  the public's right to  due process and self protection.   He                 
  felt that the legislation would encourage pollution.                         
                                                                               
  STEVE   BORRELL,   EXECUTIVE   DIRECTOR,    ALASKA   MINER'S                 
  ASSOCIATION testified in  support of  CSSB 178 (JUD)  am(efd                 
  fld), via  the teleconference  network from  Anchorage.   He                 
  emphasized that individuals or companies conducting business                 
  within the law should not  be subject to nuisance  lawsuits.                 
  He stressed that Alaska mining activities are in competition                 
  for investment dollars from countries around the world.                      
                                                                               
  DON MULLER, SITKA  testified against  CSSB 178 (JUD)  am(efd                 
  fld),  via  the  teleconference  network  from  Sitka.    He                 
  asserted that the  Alaska Pulp Company does not  respect the                 
  rights of the community in which it has operated.                            
                                                                               
  JOEL KAWAHARA, SITKA testified against CSSB 178 (JUD) am(efd                 
  fld), via teleconference network from Sitka.  He referred to                 
  the definition of "nuisance".                                                
                                                                               
  RON  DICK,  ASSOCIATE  PROFESSOR,  SHELDON  JACKSON  COLLEGE                 
  testified  in opposition to CSSB 178  (JUD) am(efd fld), via                 
  the teleconference network from Sitka.  He asserted that the                 
  legislation is a  direct response to  a lawsuit against  the                 
  Alaska  Pulp  Corporation  (APC).   He  maintained  that the                 
  legislation exempts any polluter from liability if they have                 
  the  permission of  the government to  pollute by  virtue of                 
  statute, regulation, license, or permit.                                     
                                                                               
  Mr. Dick observed that the APC had numerous private meetings                 
  with  the Department of  Environmental Conservation to agree                 
  upon acceptable pollution standards.  He maintained that the                 
  Environmental Protection Agency  is contemplating a  lawsuit                 
  against the  Department of Environmental  Conservation (EPA)                 
  for  their failure to  enforce air quality  regulations.  He                 
  asserted that the  Department of Environmental  Conservation                 
  has been too lenient with APC.                                               
                                                                               
  Mr.  Dick  alleged that  CSSB  178 (JUD)  am(efd  fld) would                 
                                                                               
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  disenfranchise the public "from  seeking legal redress  when                 
  the state government and industry  collude to circumvent the                 
  laws and regulations of the state."                                          
                                                                               
  RAY JENNINGS, SITKA testified against  CSSB 178 (JUD) am(efd                 
  fld),  via  the  teleconference  network  from  Sitka.    He                 
  asserted that the right of an  Alaskan to maintain a private                 
  nuisance action to protect his property is fundamental.                      
                                                                               
  NANCY LETTICOE, PRESIDENT, ALASKA WILDERNESS, RECREATION AND                 
  TOURISM  ASSOCIATION testified  in  opposition to  CSSB  178                 
  (JUD)  am(efd  fld),  via the  teleconference  network  from                 
  Valdez.    She  asserted  that  the  impact  on  the tourism                 
  industry  could  be  considerable.    She gave  examples  of                 
  instances  of   pollution  by  industry  that  could  effect                 
  tourism.  She alleged that the legislation was introduced to                 
  help APC fight specific court action.  She stressed, that if                 
  the  right of  business to  bring  civil action  for damages                 
  resulting  from  civil  nuisance   is  withdrawn,  the  only                 
  recourse will be to sue the State of Alaska.                                 
                                                                               
  Mr.  Sever provided  the Committee with  an overview  of the                 
  litigation  against  the  APC.    He stated  that  discharge                 
  monitoring  reports by  APC  to EPA  showed  that levels  of                 
  solids being discharged in their waste  stream were over the                 
  amount  allotted  by   their  permit.    He   asserted  that                 
  discoloration  and  damage  to the  water  and  ecosystem of                 
  Silver  Bay  resulted.   He  added  that  in  1991 and  1992                 
  polluting sludge from APC's  waste water treatment  facility                 
  was showing  up in  Silver  Bay.   The sludge  was found  to                 
  contain significant amounts  of toxins  when tested by  EPA.                 
  In 1991, EPA found  that APC had intentionally violated  the                 
  Clean  Water  Act.    A  fish  advisory was  issued  by  the                 
  Department  of  Environmental  Conservation  advising  local                 
  processors not to wash  fish caught in the waters  of Silver                 
  Bay due to  the contamination of  the water.  He  maintained                 
  that  beach  front  property  values  were effected  by  the                 
  activities of APC.                                                           
                                                                               
  Mr. Sever understood that the legislation would provide that                 
  as long as  a business is  operating under a  permit and  is                 
  covered  by the terms of  the permit they  cannot be sued in                 
  state court for any  damage done from discharges  covered by                 
  the permit.                                                                  
                                                                               
  RUSSELL   HEATH,   DIRECTOR,   ALASKA  ENVIRONMENTAL   LOBBY                 
  testified in opposition to  CSSB 178 (JUD) am(efd fld).   He                 
  stressed  that  Alaska  does  not  have  a problem  with  an                 
  unacceptably large  number of suits to abate  nuisances.  He                 
  asserted  that  the  legislation was  introduced  to  kill a                 
  specific nuisance suit against APC.   He noted that CSSB 178                 
  (JUD) am(efd fld) was  introduced only days after  the court                 
                                                                               
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  ordered APC's  Japanese parent  corporation to disclose  its                 
  financial  records.    He  maintained  that APC  has  evaded                 
  complying with air and water quality standards  for years by                 
  claiming  that  it was  financially  unable  to do  so.   He                 
  concluded  that the  record disclosure  could destroy  APC's                 
  last defense to avoid compliance.                                            
                                                                               
  Mr. Heath observed  that APC's air emissions  contain sulfur                 
  dioxide.  He  noted that sulfur dioxide turns  into sulfuric                 
  acid and  can burn  eyes and  throats.   He emphasized  that                 
  there  were  vociferous  complaints  against  APC  at public                 
  hearings   regarding   their  Department   of  Environmental                 
  Conservation  air  quality  permit.     He  added  that  the                 
  Department of  Environmental Conservation has  also received                 
  hundreds of  written complaints.   He  asserted that  public                 
  concerns have been  ignored.   He alleged  that permits  are                 
  negotiated  behind  closed   doors.    He  noted   that  the                 
  Department  of  Environmental  Conservation's administrative                 
  appeal hearing officer directed the  Department to work more                 
  closely with the public.                                                     
                                                                               
  Mr. Heath emphasized  that the  permitting process does  not                 
  guarantee  that private property  rights will  be protected.                 
  He  asserted  that the  State of  Alaska  has failed  in its                 
  administration of the  permitting process.  He  alleged that                 
  CSSB 178 (JUD) am(efd fld) "restricts the property rights of                 
  600,000 Alaskans in  order to shield a  Japanese corporation                 
  form an American Court."                                                     
                                                                               
  In response to a question by Representative Brown, Mr. Heath                 
  noted  that  APC  has  received   variances  on  its  permit                 
  stipulations.  He  was uncertain how the  proposed committee                 
  substitute would effect the litigation against APC.                          
                                                                               
  JIM  CLARK,  GENERAL  COUNSEL,  ALASKA  FOREST   ASSOCIATION                 
  testified  in  favor of  CSSB  178  (JUD) am(efd  fld).   He                 
  stressed that nuisance laws were crafted to protect property                 
  not otherwise regulated.   He  emphasized that permits  take                 
  several years  to obtain.   He  maintained that  regulations                 
  intersect in  terms of obtaining permits.   He observed that                 
  water permits are obtained from EPA.  Air permits are issued                 
  by the  State of Alaska  and overseen by  EPA.  Solid  waste                 
  permits are issued by the State of Alaska.  He discussed the                 
  permitting process.  He added that permits are renewed every                 
  five   years.    He  emphasized  that  the  public  has  the                 
  opportunity  to object  during  the permitting  process  and                 
  permit  renewal.   He  noted  that  permits are  subject  to                 
  adjudicatory hearings  by any  aggrieved party.   Those  not                 
  satisfied  by  the adjudicatory  hearing  can appeal  to the                 
  ninth circuit court of appeals.                                              
                                                                               
  Mr. Clark discussed the EPA water  permit process.  He noted                 
                                                                               
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  that the permit process was developed over a number of years                 
  with input from the  public.  He asserted that  human health                 
  risk factors, protection of private property, and the effect                 
  on animal life  and vegetation are  taken into account.   He                 
  maintained that the permit process provides safety.                          
                                                                               
  Mr. Clark stressed that permit conditions must be met at the                 
  property line.  Water  requirements must be met at  the edge                 
  of  the mixing zone.  Air permit requirements must be met at                 
  the  border  of the  property  line.    Solid  waste  permit                 
  requirements must be met at the boundary of the facility.                    
                                                                               
  He asserted  that these projections are built  in to protect                 
  unreasonable interference  with  property  rights  of  other                 
  property  owners.     He  stressed  that  there   are  three                 
  opportunities  for  lawsuits in  addition  to administrative                 
  appeals during the permit process.  He maintained  that once                 
  a permit holder has met the  requirements of the issuance it                 
  is reasonable to cut off litigation possibilities.                           
                                                                               
  Representative Navarre asked  why a  retroactive clause  was                 
  added  to  the legislation.    Mr. Clark  stressed  that the                 
  retroactive clause is an effective date.   Any case that has                 
  not reached a final judgement loses the opportunity to bring                 
  further action.                                                              
                                                                               
  Representative  Brown noted  that the state's  legal counsel                 
  has advised that the legislation may be unconstitutional due                 
  to the retroactive  provision.  Mr. Clark  observed that the                 
  state of California has similar provisions.  He did not know                 
  if the California provisions were enacted with a retroactive                 
  date.  He argued that the retroactive date is supportable.                   
                                                                               
  Mr. Clark  noted  that  legislation,  sponsored  by  Senator                 
  Kerttula, passed in 1986, cut off nuisance actions for those                 
  that moved to  the nuisance.   He added that North  Carolina                 
  has similar provisions.                                                      
                                                                               
  In response to a question by Representative Grussendorf, Mr.                 
  Clark acknowledged that  permit holders that do  not fulfill                 
  the  terms of  their permit  will be subject  to litigation.                 
  Only  permit  holders  meeting  the  requirements  of  their                 
  permits are covered  by the legislation.   He observed  that                 
  violations  would   not   be  protected   by   the   permit.                 
  Representative  Grussendorf  observed  that  if  the  permit                 
  holder was using  a chemical or  process not covered by  the                 
  permit they could be subject to a lawsuit.  Mr. Clark  added                 
  that if an impact not anticipated by  the permitting process                 
  was the cause of injury it could be subject to litigation.                   
                                                                               
  Mr. Clark concluded that the  permit holder must be strictly                 
  in  accordance  with  the  permit,  the permit  cannot  have                 
                                                                               
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  unanticipated consequences, and if  there are violations  of                 
  the permit  terms, the  holder's legal  protection would  be                 
  lost.   He  stressed that  the legislation  will provide  an                 
  incentive to meet the terms of the permit.                                   
                                                                               
  (Tape Change, HFC 94-38, Side 2)                                             
                                                                               
  Representative Therriault clarified that if the public feels                 
  that they  do not  have an  avenue  to have  input into  the                 
  permit process there  are administrative appeals  available.                 
  Mr. Clark  detailed administrative appeals  available to the                 
  public.                                                                      
                                                                               
  Representative  Therriault  MOVED to  ADOPT  Work  Draft #8-                 
  LS0903\D dated 2\22\94.  There being NO OBJECTION, it was so                 
  ordered.                                                                     
                                                                               
  HCS CSSB  178  (FIN)  was  HELD  in  Committee  for  further                 
  discussion.                                                                  

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