Legislature(1997 - 1998)
04/09/1997 01:10 PM House JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
April 9, 1997
1:10 p.m.
MEMBERS PRESENT
Representative Joe Green, Chairman
Representative Con Bunde, Vice Chairman
Representative Brian Porter
Representative Norman Rokeberg
Representative Jeannette James
Representative Eric Croft
Representative Ethan Berkowitz
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
* HOUSE JOINT RESOLUTION NO. 30
Relating to the creation of a new United States Court of Appeals
for the Twelfth Circuit.
- MOVED HJR 30 OUT OF COMMITTEE
HOUSE BILL NO. 207
"An Act relating to employer drug and alcohol testing programs."
- HEARD AND HELD
CS FOR SENATE BILL NO. 41(FIN)
"An Act relating to environmental audits to determine compliance
with certain laws, permits, and regulations."
- MOVED HCS CSSB 41(JUD) OUT OF COMMITTEE
(* First public hearing)
PREVIOUS ACTION
BILL: HJR 30
SHORT TITLE: ENDORSE FED. CT. OF APP. FOR 12TH CIRCUIT
SPONSOR(S): JUDICIARY
JRN-DATE JRN-PG ACTION
03/17/97 691 (H) READ THE FIRST TIME - REFERRAL(S)
03/17/97 691 (H) JUDICIARY
04/09/97 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 207
SHORT TITLE: EMPLOYER DRUG TESTING PROGRAM
SPONSOR(S): REPRESENTATIVE(S) GREEN
JRN-DATE JRN-PG ACTION
03/21/97 785 (H) READ THE FIRST TIME - REFERRAL(S)
03/21/97 785 (H) LABOR & COMMERCE, JUDICIARY
04/04/97 (H) L&C AT 3:15 PM CAPITOL 17
04/09/97 (H) JUD AT 1:00 PM CAPITOL 120
04/09/97 1039 (H) L&C RPT CS(L&C) 2DP 3NR 1AM
04/09/97 1039 (H) DP: RYAN, ROKEBERG
04/09/97 1039 (H) NR: HUDSON, BRICE, COWDERY
04/09/97 1039 (H) AM: KUBINA
04/09/97 1039 (H) ZERO FISCAL NOTE (LABOR)
BILL: SB 41
SHORT TITLE: ENVIRONMENTAL AUDITS
SPONSOR(S): SENATOR(S) LEMAN, Pearce, Taylor
JRN-DATE JRN-PG ACTION
01/10/97 25 (S) PREFILE RELEASED 1/10/97
01/13/97 25 (S) READ THE FIRST TIME - REFERRAL(S)
01/13/97 25 (S) L&C, JUD, FIN
01/31/97 191 (S) L&C RPT CS 2DP 1NR SAME TITLE
01/31/97 191 (S) DP: LEMAN, MILLER; NR: MACKIE
02/12/97 306 (S) FISCAL NOTES TO CS (LAW, LABOR)
02/12/97 306 (S) INDETERMINATE FISCAL NOTE TO CS
(DHSS)
03/11/97 670 (S) FISCAL NOTE TO CS (COURT)
03/10/97 653 (S) JUD RPT CS 4DP 1DNP NEW TITLE
03/10/97 653 (S) DP: TAYLOR, PARNELL, MILLER, PEARCE
03/10/97 653 (S) DNP: ELLIS
03/14/97 740 (S) FISCAL NOTE TO CS (LAW)
03/13/97 717 (S) ZERO FN TO CS (DHSS)
03/18/97 766 (S) FIN RPT CS 3DP 1NR NEW TITLE
03/18/97 766 (S) DP: SHARP, PEARCE, PARNELL; NR:
PHILLIPS
03/18/97 766 (S) FISCAL NOTE TO CS (LAW, COURT)
03/18/97 766 (S) ZERO FISCAL NOTE (LABOR)
03/18/97 766 (S) PREVIOUS ZERO FN APPLIES (DHSS)
03/19/97 782 (S) RULES TO CALENDAR & OTHER RECS
3/19/97
03/19/97 783 (S) READ THE SECOND TIME
03/19/97 784 (S) FIN CS ADOPTED UNAN CONSENT
03/19/97 784 (S) AM NO 1 OFFERED BY DUNCAN
03/19/97 784 (S) AM NO 1 FAILED Y4 N15 E1
03/19/97 784 (S) AM NO 2 OFFERED BY DUNCAN
03/19/97 784 (S) AM NO 2 FAILED Y4 N15 E1
03/19/97 785 (S) ADVANCED TO THIRD READING
UNAN CONSENT
03/19/97 785 (S) READ THE THIRD TIME CSSB 41(FIN)
03/19/97 785 (S) PASSED Y16 N3 E1
03/19/97 786 (S) DUNCAN NOTICE OF RECONSIDERATION
03/21/97 810 (S) RECONSIDERATION NOT TAKEN UP
03/21/97 811 (S) TRANSMITTED TO (H)
03/24/97 801 (H) READ THE FIRST TIME - REFERRAL(S)
03/24/97 801 (H) JUDICIARY, FINANCE
WITNESS REGISTER
JEFF LOGAN, Legislative Assistant
to Representative Joe Green
Capitol Building, Room 118
Juneau, Alaska 99811
Telephone: (907) 465-4931
POSITION STATEMENT: Prime Sponsor HJR 30 and HB 207
JOANNE GRACE, Assistant Attorney General
Natural Resources Section
Department of Law
1031 West 4th Avenue, Suite 200
Anchorage, Alaska 99501
Telephone: (907) 269-5100
POSITION STATEMENT: Testified in support of HJR 30
FRANK DILLON, Executive Director
Alaska Trucking Association
3443 Minnesota Drive
Anchorage, Alaska
Telephone: (907) 269-5100
POSITION STATEMENT: Testified in support of HB 207
MATTHEW FAGNANI, President
Allvest Laboratories, Inc.
341 West Tudor Road, Suite 106
Anchorage, Alaska 99503
Telephone: (907) 563-8378
POSITION STATEMENT: Testified in support of HB 207
MICHAEL PAULEY, Legislative Assistant
to Senator Loren Leman
Capitol Building, Room 113
Juneau, Alaska 99811
Telephone: (907) 465-2095
POSITION STATEMENT: Prime Sponsor SB 41
JANICE ADAIR, Director
Division of Environmental Health
Department of Environmental Conservation
555 Cordova Street
Anchorage, Alaska 99501
Telephone: (907) 269-7644
POSITION STATEMENT: Testified on SB 41
MARIE SANSONE, Assistant Attorney General
Natural Resources Section
Department of Law
P.O. Box 110300
Juneau, Alaska 99811
Telephone: (907) 465-3600
POSITION STATEMENT: Provided testimony on SB 41
ACTION NARRATIVE
TAPE 97-52, SIDE A
Number 001
The House Judiciary Standing Committee was called to order by
Chairman Joe Green at 1:10 p.m. Members present at the call to
order were Representatives Con Bunde, Norman Rokeberg, Jeannette
James, Ethan Berkowitz and Chairman Joe Green. Representative Eric
Croft arrived at 1:12 p.m., and Representative Brian Porter arrived
at 1:14 p.m.
HJR 30 - ENDORSE FED. CT. OF APP. FOR 12TH CIRCUIT
Number 089
CHAIRMAN JOE GREEN announced that members would first consider HJR
30, relating to the creation of a new United States Court of
Appeals for the Twelfth Circuit.
JEFF LOGAN, Legislative Assistant to Representative Joe Green,
advised members that Representative Green, as the Chairman of the
House Judiciary Committee, had introduced HJR 30. He pointed out
that in member's bill packets they could find a letter dated
September 8, 1995 from Governor Tony Knowles, to U.S. Senator Orrin
Hatch, Chair of the U.S. Senate Committee on the Judiciary. Mr.
Logan advised members that he had contacted the governor's
legislative office and was assured that the governor was still in
favor of the creation of a new Twelfth Circuit United States Court
of Appeals, even though the letter was somewhat dated.
MR. LOGAN stated that additionally, members should have a letter
dated September 12, 1995, from Alaska State Attorney General, Bruce
Botelho. Mr. Logan spoke with Attorney General Botelho the
previous evening who had assured him that HJR 30 embodied his
position on the creation of the new Twelfth Circuit, and the other
five attorneys general, of the five states that would be included
in the Twelfth Circuit, were also still supportive of the creation
of the Twelfth Circuit U.S. Court of Appeals. Mr. Logan pointed
out that would explain why the old letters had been included in
member's bill packets.
MR. LOGAN directed members' attention to another document in their
bill packets entitled A BILL, which was a draft of S. 431, the bill
introduced by Senators Murkowski and Stevens and four other
Senators from western states. He noted that the final version was
not available in the Juneau Congressional Office; however, the
language in the document members had access to was the language
that the HJR spoke to. Mr. Logan advised members that S. 431 had
been referred to, and was still in the U.S. Senate Committee on the
Judiciary.
MR. LOGAN pointed out that the U.S. Senate Committee on the
Judiciary believed that HJR 30 deserved the support of the House
Judiciary Committee because the Ninth Circuit Court of Appeals was
too large to meet Alaska's needs, and was too backlogged to address
them in a timely fashion.
MR. LOGAN advised members that the first "WHEREAS" of HJR 30 stated
that Alaska was within jurisdiction of the Ninth Circuit; the
second "WHEREAS" provided the names of the states and federal
territories included in the Ninth Circuit Court of Appeals; the
third "WHEREAS" provided the names of U.S. Senators who had
introduced S. 431; and the fourth "WHEREAS" stipulated that
Portland, Oregon, and Seattle, Washington, would be the
headquarters for the new Twelfth Circuit Court of Appeals. Mr.
Logan pointed out that that language had been included in the
Resolution because two years ago, with respect to the old
legislation that Senator Hatch introduced, two additional states at
that time agreed that they would like to be included in the new
Twelfth Circuit Court of Appeals, and in exchange for their support
of the bill, they wanted Phoenix, Arizona to be the headquarters
for the new Twelfth Circuit, so that was the reason why HJR 30
specified that headquarters would be located in Portland, Oregon,
and Seattle, Washington.
MR. LOGAN referred to page 2 of HJR 30 which again reflected that
there would be five states within the new Twelfth Circuit Court of
Appeals. The Resolution pointed out that the Ninth Circuit Court
of Appeals was California heavy, of which 19 of the 28 Judges
within the Ninth Circuit had duty stations in the state of
California, with most of them living in San Francisco and Los
Angeles, California.
Number 385
REPRESENTATIVE ERIC CROFT advised members that he had clerked for
a federal judge in the U.S. District Court of Alaska, and they had
a running debate on the issue, although it always seemed like a
good idea to him. Representative Croft pointed out that the
concern of that federal judge was that to some extent, Alaska was
a medium, or small size fish in a big pond. He believed that
Alaska was part of a powerful circuit, and through that power
Alaska could assure itself more of a voice. Representative Croft
noted that it would not be fair to Judge Fitzgerald to not ask for
the committee's response on his views.
MR. LOGAN stated that what Representative Croft had just brought
attention to was the exact reason why HJR 30 had been introduced,
and why Senators' Stevens and Murkowski had introduced the bill in
Congress. He stated that Alaska was a small fish in a big pond,
and because of that the state did not get the necessary attention.
REPRESENTATIVE CROFT expressed the possibility that if the state
moved to a smaller pond, the pond would then not get noticed. He
stated that the Ninth Circuit, because of its power, got a fair
amount of attention, and asked if what was being said was that
Alaska did not get enough attention being within the Ninth Circuit
Court of Appeals.
CHAIRMAN GREEN advised members that when the majority of the
backlog resided in the state where the court was headquartered,
Alaska was way far removed. He stated that to be heard more often
in a smaller district certainly bided better for the state of
Alaska.
Number 574
REPRESENTATIVE NORMAN ROKEBERG stated that he would say that the
decisions rendered by circuit courts and the weight of authority
they carried nationally, depended on the quality of their
decisions, not their locale or size.
REPRESENTATIVE JEANNETTE JAMES stated that aside from the fact that
the Ninth Circuit Court of Appeals was backlogged, it covered a
huge area and dealt with many, many cases. She was somewhat
embarrassed to state the following; however, Representative James
advised members that she lacked faith in the judicial system, and
the reason she pointed that out was because in evaluating cases,
she had found that a lot of decisions were based on things other
than the law, and on public attitudes and where things were in a
society. Representative James stated that when they see decisions
coming out of a case where most of the judges are in California,
that she found very little in common with that state.
REPRESENTATIVE JAMES stated that if those judges rendered decisions
and were influenced, whatsoever, by the area in which they lived
and the news they heard everyday as to what was happening society,
she felt left out. Representative James felt that if a Court of
Appeals were moved close to Alaska and included states that Alaska
had more in common with, that Alaska would have a chance to be
recognized more fairly and according to the law. Representative
James believed that HJR 30 expressed the best interest for the
state of Alaska.
REPRESENTATIVE JAMES pointed out that the backlog issue was another
deterrent to the state for realizing prompt service from the Ninth
Circuit Court of Appeals.
REPRESENTATIVE BRIAN PORTER expressed to members that the same
resolution had been before the legislature the previous session,
and it passed unanimously. He stated that some of the decisions
that had come out of the Ninth Circuit made it plainly obvious that
they knew nothing about the state of Alaska, cared nothing about
the state of Alaska, and thought perhaps Alaska was analogous to
Iowa in 1850, or something really ridiculous.
REPRESENTATIVE PORTER pointed out the Ninth Circuit Court of
Appeals had been reversed more than any other Circuit, and that was
not the team he wanted to be on.
Number 760
REPRESENTATIVE ETHAN BERKOWITZ expressed that having grown up in
the shadow of the Ninth Circuit, literally, he did not think they
knew much about frozen ponds.
REPRESENTATIVE CROFT asked why Hawaii was not listed among the
states to be included in the proposed Twelfth Circuit Court of
Appeals.
MR. LOGAN expressed that the original idea was to have, in essence,
a Northwest court because there were so many social, cultural and
economic similarities, along with geographical similarities between
the five states listed.
REPRESENTATIVE BERKOWITZ noted that he had lived in other parts of
the country, and the complaint was not particular to Alaska that
the Ninth Circuit was too large. He felt a lot of the Circuits
were far too large when considering the District of Columbia had
two Circuits all by itself, and their population was roughly
equivalent to the state of Alaska.
Number 925
JOANNE GRACE, Assistant Attorney General, Natural Resources
Section, Department of Law, advised members she was testifying on
behalf of Attorney General Botelho who supported the Ninth Circuit
Court of Appeals Reorganization Act.
MS. GRACE advised members that the Ninth Circuit, by far, had the
most judges and the largest area served than any circuit court.
She stated that those facts did not serve the state of Alaska well.
Ms. Grace explained that it was a large court with judges so far
away that they could not adequately understand and appreciate the
issues unique to Alaska.
MS. GRACE advised members that in 1996, 60 percent of the cases the
court heard were California cases, with approximately 2 percent
being Alaska cases. She stated that of the judges currently
serving on the Ninth Circuit, 64 percent were from California, with
only one judge from the state of Alaska.
MS. GRACE pointed out that a new Circuit, comprised of Alaska,
Montana, Idaho, Oregon and Washington would eliminate the dominance
of California judges over those states. Ms. Grace stated that
proponents of splitting the Circuit had complained that
Californians, and other Southwestern judges, failed to appreciate
the effect of their environmental decisions on the economies of
states dependant on natural resource development, rather than on
high-tech industry. She stated with respect to Alaska, the lack of
understanding extended far beyond economics. Ms. Grace pointed out
that most judges on the Ninth Circuit Court of Appeals had
different sensibilities and perceptions of social, geographical,
political and economic matters.
MS. GRACE provided an example of the Ninth Circuit's interpretation
of the word "rural", as applied to the state of Alaska. She
explained that the Ninth Circuit panel, which consisted of three
judges from Pasadena, San Francisco and San Diego, California,
obviously applied a non-Alaskan understanding of its meaning. Ms.
Grace advised members that the issue in Kenaitze Indian Tribe v.
State of Alaska, 860 F.2d at 312 (9th Cir. 1988), was whether
ANILCA's rural subsistence priority applied to the Kenai Peninsula.
Ms. Grace advised members that the state regulation at issue
defined "rural" as it was generally understood in Alaska to mean
the "bush". It did so by excluding the areas characterized
primarily by a cash economy, which then excluded the Kenai
Peninsula.
MS. GRACE advised members that the Ninth Circuit vehemently
rejected that interpretation, calling it "unusual" and "exotic".
The court said: "The state's definition would exclude practically
all areas of the United States that we think of as rural, including
virtually the entirety of such farming and ranching states as Iowa
and Wyoming....The term rural is not difficult to understand; it is
not a term of art. It is a standard word in the English language
commonly understood to refer to areas of the country that are
sparsely populated where the economy centers on agriculture or
ranching...."
MS. GRACE pointed out that the court completely rejected the
possibility that "rural" might mean something different in the
state of Alaska, the only place where ANILCA applied, than it did
in the Midwest or West.
MS. GRACE advised members that another concern of the Attorney
General was the untimeliness of decisions that come from the Ninth
Circuit Court of Appeals. She stated that it was due, in part, to
the volume of cases the court heard, but was also escalated in
Alaska's case because of the court's oral argument calendar. Ms.
Grace stated that in general, the court heard argument each year,
12 times in San Francisco; 12 times in Pasadena; 12 times in
Seattle; six times in Portland; two times in Honolulu; and one time
in Anchorage. She advised members that a panel of three judges
travel to Anchorage each year in July or August to hear Alaska
cases. She pointed out that as a result, the Ninth Circuit saved
Alaska cases for its annual trip. Ms. Grace stated that while a
case in California may be set a month or two after briefing was
complete, Alaska cases were generally set for argument in July or
August, even if briefing was complete in January of February, which
created an unnecessary delay for Alaskan cases.
MS. GRACE further stated that Alaska, and the other states
included, would benefit from the creation of a Twelfth Circuit
Court of Appeals comprised of Northwestern states because the
Twelfth Circuit Court judges would not bring a foreign perspective
to their decisions.
CHAIRMAN GREEN asked if Ms. Grace would fax a copy of her testimony
to the House Judiciary Committee.
MS. GRACE responded in the affirmative.
Number 1156
REPRESENTATIVE ROKEBERG advised members that he was pleased to hear
the testimony of Ms. Grace because it corroborated his
understanding of the fact that, while he did attend a law school in
the state of California, and clearly, the understanding of the
California ethos, as related to the law, did not serve the purposes
of the state of Alaska well. He advised members that he strongly
supported HJR 30.
REPRESENTATIVE CON BUNDE moved to report HJR 30 out of committee
with individual recommendations and a zero fiscal note. There
being no objection, HJR 30 was reported out of the House Judiciary
Committee.
CHAIRMAN GREEN announced that the House Judiciary Committee would
go into recess for the purpose of attending the funeral of former
State Representative Bob Ward. The committee would recess at 2:15
p.m., and reconvene at 5:30 p.m. Chairman Green pointed out that
because of that, he would take testimony from two people on HB 207,
and they would then revert back to SB 41 when the committee
reconvened at 5:30 p.m.
HB 207 - EMPLOYER DRUG TESTING PROGRAM
Number 1275
JEFF LOGAN, Legislative Assistant to Representative Joe Green,
spoke regarding HB 207, "An Act relating to employer drug and
alcohol testing programs." He requested because of time
constraints that he be allowed to provide a more detailed
introduction of the bill when the committee reconvened at 5:30
p.m., after taking testimony on SB 41.
MR. LOGAN advised members that HB 207 offered certain, limited
immunity from law suit, in exchange for the employer developing a
written drug testing plan and policy. He noted that earlier during
the year, a number of legislators received a letter from a
gentleman in Anchorage, Alaska who was a member of a national
association who had model drug testing legislation. Mr. Logan
pointed out that the sponsor of HB 207, Representative Joe Green,
had requested that his staff research any legislation that existed
in other states, or was being introduced on drug testing policies.
He advised members that last year HB 522 had been introduced and he
had discussed with the sponsor of that legislation whether or not
they intended to reintroduce the legislation, and it was found out
that they had not intended to reintroduce the legislation. Because
of that, Mr. Logan advised members that they reviewed HB 522,
discussed it with employer and employee groups, and arrived at the
language contained in HB 207.
CHAIRMAN GREEN accepted comments via teleconference from Anchorage,
Alaska, and invited Frank Dillon to present his testimony on HB
207.
Number 1406
FRANK DILLON, Executive Director, Alaska Trucking Association,
advised members the Association was a 38-year-old trade association
which consisted of truck users from all over the state. He advised
members that they supported HB 207 and would like to see the bill
passed and implemented in an expeditious manner.
MR. DILLON stated that the Association saw the legislation as a
type of tort reform. He pointed out that if a problem arose and
damage had occurred that the person who was, basically, responsible
for the damage incur the liability. Mr. Dillon stated that seemed
logical and reasonable to the Trucking Association, and hoped that
members would support the bill.
Number 1435
MATTHEW FAGNANI, President of Allvest Laboratories, Inc., advised
members they were a third party drug, alcohol program
administrative company that provided drug and alcohol testing
programs for more than 1400 companies.
MR. FAGNANI advised members that he also served as a board member
for the National Organization of the Substance Abuse Programmers
Administration Association, which was an organization that
promulgated good policy and standardized policies, and proper
procedures throughout the nation. He noted that there were several
hundred members involved in that organization nationwide.
MR. FAGNANI advised members that HB 207 was necessary to establish
policy for drug testing. He expressed that currently there were
more than 53,000 Alaskan individuals involved in mandatory drug and
alcohol testing by a the federal government; the U.S. Department of
Transportation Industry, the Coast Guard, Airlines, Pipelines and
Trucking industries. Mr. Fagnani advised members that it did not
include all the non-mandated testing that was done, for instance,
at the Alyeska Ski Resort, or the many hotels, such as the Westmark
and the Hilton. He would estimate that the number of Alaskans
covered by mandatory drug testing programs was closer to possibly
75,000 to 80,000 statewide.
MR. FAGNANI expressed that when considering the state's population,
a huge chunk of that population was in a program where there was no
state guidelines as to how employers were supposed to establish
testing programs. He pointed out that HB 207 would assist
employers in establishing policies that would mandate the U.S.
Department of Health and Human Services requirement for stamps of
certified laboratories that were being used.
MR. FAGNANI further stated that the bill would establish policy to
have a standardized collection procedure, and also a policy to use
a physician in the event of a positive test result. Mr. Fagnani
pointed out that HB 207 was good legislation that would also
protect the employer, as well as the employee by allowing employees
the right to know what was expected of them through the vehicle of
the employee policy. He stated that HB 207 was the type of
legislation that required no fiscal note and was a voluntary
program. Mr. Fagnani advised members he would be available when
the committee reconvened at 5:30 p.m. in the event members should
have questions they might wish to ask.
Number 1566
REPRESENTATIVE BERKOWITZ asked if the testing that was currently
done on the 75,000 Alaskans was done in the state.
MR. FAGNANI advised members that it was not. He explained that
currently, there were no operators conducting tests in the state of
Alaska except for the Alaska Regional Hospital who did the
screening tests. Mr. Fagnani expressed that all confirmations of
positive tests were sent outside to a U.S. DHSS certified lab. Mr.
Fagnani advised members that they currently conducted over 30,000
tests a year, and the lab they use had conducted over 2.5 million
tests since 1989, and they were just a small regional lab.
REPRESENTATIVE BERKOWITZ asked if there was any reason why those
tests could not be conducted in the state of Alaska, adding that it
appeared as thought there were a lot of tests being generated.
MR. FAGNANI advised members that it was because of the volume, and
Alaska really did not conduct a lot of tests. He pointed out that
the lab they use was in Salt Lake City, Utah, who conduct
approximately 1000 tests per day, 25,000 tests a month. Mr.
Fagnani expressed that his volume would represent one month's
testing to a lab their size. He advised members that Allvest used
to be a drug testing laboratory in the state of Alaska, who had
technicians and equipment, but had since donated all of that to one
of the local schools. Mr. Fagnani expressed that there just was
not the economy in the state to make it worthwhile, adding that
Alaskans were price sensitive. He pointed out that currently a
test would cost a trucker $60, and that would cover all the costs,
including shipping costs to a lab in the Lower 48. Mr. Fagnani
explained that if that same test was conducted in the state of
Alaska, it would probably cost around $150 because a Ph.D.
Toxicologist would be required, and there was only a handful of
those in the state. Mr. Fagnani pointed out that start up costs
would amount to approximately $1.5 million in order to become a
certified lab. He stated that it was just cost prohibitive, and
expressed that Allvest had considered, seriously, providing the
service under their old ownership.
Number 1664
REPRESENTATIVE PORTER declared a possible conflict of interest
because he operated a security business for three years, that,
among other things, administered drug testing for several companies
in Anchorage, Alaska. He noted that they also looked into the
notion of performing the ultimate tests in Alaska, and agreed that
it was cost prohibitive.
CHAIRMAN GREEN thanked Representative Porter for putting that on
the record; however, it would not disqualify him from voting on the
proposed legislation.
REPRESENTATIVE ROKEBERG asked if Mr. Fagnani had had a chance to
review the proposed draft committee substitute.
MR. FAGNANI expressed that he had reviewed it, that Representative
Green's staff faxed him a copy of that version of the bill.
CSSB 41(FIN) - ENVIRONMENTAL AUDITS
Number 1726
CHAIRMAN GREEN advised members they would next consider CSSB
41(FIN), "An Act relating to environmental audits to determine
compliance with certain laws, permits, and regulations." He
apologized to people in the gallery, as well as to the committee
members, because of falling behind; however, it had been due to
circumstances beyond his control. He announced that they would
take testimony until 2:15 p.m., and reconvene at 5:30 p.m.
CHAIRMAN GREEN pointed out that public testimony had been closed on
SB 41, and advised members that amendments that had been discussed
during the previous hearing had been incorporated into a new House
draft committee substitute, Version "K".
REPRESENTATIVE JEANNETTE JAMES asked if any of the prior amendments
had not been included in the new House draft committee substitute.
CHAIRMAN GREEN advised members that prior amendments which had been
identified as proposed Amendments 3, and 9 had not been included in
the revised version, as well as other amendments that had been
added since that time. He noted that two of those amendments were
controversial, Amendment 3, and Amendment 9, and there were also a
couple of minor amendments, as well as two Amendments that had been
submitted by Representative Berkowitz that had not been
incorporated into the new House draft committee substitute, Version
"K".
REPRESENTATIVE NORMAN ROKEBERG moved to adopt HCS CSSB 41 ( ),
Version "K", as the committee's working document. There being no
objection, HCS CSSB 41 ( ), Version "K", was adopted as the
committee's working document.
Number 1882
MICHAEL PAULEY, Legislative Assistant to Senator Loren Leman, Prime
Sponsor, pointed out that as stated by Chairman Green, there were
nine proposed amendments at the previous hearing, and of those nine
amendments, only amendments 3 and 9, as they were designated on
Monday, were considered controversial by the sponsor; however, the
other seven amendments were amendments that the sponsor, the
administration and affected industries had all reviewed and had no
problem with those.
MR. PAULEY stated that the substantive changes could all be found
on page 10 of Version "K", beginning on lines 3 through 6. He
advised members that the wording of that paragraph had changed
slightly and used to contain the words "repeatedly" or
"continuously" committed, and those had been deleted and replaced
with the word pattern. Mr. Pauley advised members that had
addressed a concern brought forth by the some of the industries
because certain violations were measured for each day they were
committed. He explained that if a piece of machinery was not set
at the right setting, that it would considered a violation each,
and every day that it was not set right, even though one compliance
issue was involved. Mr. Pauley advised members that the use of the
word "pattern" was more accurate than the word "repeatedly".
MR. PAULEY pointed out that the second change occurred on page 10,
lines 10 and 11. On line 10 the word "authorized" had been added;
"the violation was authorized or committed intentionally,", and
that addressed a situation where an owner or operated authorized
someone else to violate. On line 11, the word recklessly had been
added, whereas previously it stated "intentionally or knowingly".
Mr. Pauley advised members that the third and final substantive
change could be found on page 10, beginning on line 21, in which a
new subsection (b) had been added, and read as follows: (b) There
is no immunity under AS 09.25.475 from an administrative or civil
penalty for the coalition of an administrative or court order or
for violation of a term or condition of an administrative or court
order. Mr. Pauley explained that that addressed where an audit had
been conducted and a problem was found, it would be reported and
immunity would be claimed; however, that same problem was something
that six months prior to starting the audit report was the subject
of an order which required the cleanup process. A violation, in
that sense, could not be claimed as an unknowing violation, or one
that had just been discovered the subject of an enforcement order.
MR. PAULEY stated that the other changes were largely of a
technical nature, and unless the committee wished, that in the
interest of time, he would conclude his testimony.
CHAIRMAN GREEN pointed out that subsection (c), on page 10, was
subsection (b) in the previous version, and he wanted to clarify
that the mitigation was still included in that bill section.
REPRESENTATIVE ETHAN BERKOWITZ moved to amend draft HCS CSSB 41 (
), page 4, line 4, following the ".", insert; The audit report must
indicate in writing the date on which it was completed. Page 7,
line 14, delete the word [promptly]; page 7, lines 14-15, delete
[after discovery of the noncompliance], and insert; within the time
limits applicable under AS 09.25.475(d). Page 8, line 3, delete,
[promptly after knowledge of the information disclosed is obtained
by the owner or operator], insert; within 10 days after the audit
report containing the disclosed information was completed. Page 8,
line 15, delete, [promptly], insert; within 10 days after the audit
report was completed. Page 8, line 17, delete, [promptly], insert;
within 10 days after the audit report was completed. Page 8, line
21, following the word "days", insert after the audit report was
completed.
REPRESENTATIVE JAMES objected.
REPRESENTATIVE BERKOWITZ expressed that Amendment 10 was,
basically, a technical amendment that would make sure that audits
were dated, and rather than relying on the variation of what people
might consider to be "prompt" notification, or reporting, that he
believed the standard that the EPA used was within 10 days.
REPRESENTATIVE BERKOWITZ pointed out that his line references
pertained to Version "H", so adjustments would be necessary because
they were considering Version "K".
REPRESENTATIVE JAMES advised members she would rather maintain the
word "prompt", rather than 10 days.
Number 2227
CHAIRMAN GREEN advised members that "promptly" could be adequate
time for a small "Mom and Pop" operation; however, a large
corporation's audit may be the size of a phone book, and to require
a report of that magnitude to be completed and provided promptly
might not be practical. He noted that he had a problem with a
fixed time because of the wide scope of the kinds of companies that
would be involved.
MR. PAULEY advised members the sponsor would be opposed to
Amendment 10, and one of the reasons was what Chairman Green
expressed. He stated that audit reports did vary in size, and for
a large company, such as Alyeska, the process could take longer
than 10 days. Mr. Pauley advised members that he had requested a
number of sample disclosures from the state of Texas, which he
distributed to the staff of committee members. He noted that in
those four disclosure samples, there was a considerable variance;
one was disclosed in two days after completion of the report, and
the longest period was 50 days.
MR. PAULEY pointed out that what he had heard from at least two
attorneys, who work with corporations, was if "promptly" was left
undefined, the tendency would be erring on the side of interpreting
that conservatively. He stated that a company would not want to
lose immunity based on a technical disqualification by the agency
because they might not feel the report was submitted promptly. Mr.
Pauley felt it would be best to leave it as an administrative
discretion where DEC would have the discretion to define what they
felt was prompt or not, given the nature of the audit and
complexity of the document.
REPRESENTATIVE ROKEBERG asked if there might be a case where there
could be an unclear area of responsibility between the contractor
and the principal. He stated that he could conceive of an instance
where there could be a contractual obligation between a contractor
and a principal that prior to any revelations of environmental
audits, that they would be informed and also have an opportunity to
review the report. Representative Rokeberg agreed that a set time
frame would be problematic. He pointed out that the House Labor
and Commerce Committee had an International Letter of Credit issue
before them on the UCC, and one of the topics of debate was when
the payments of the monies would be actually transferred from one
end to the other, and they were going from 30 days down to 7 days
in the Uniform Act. Representative Rokeberg advised members that
they were considering periods of time, which even in a monetary
instance, needed a certain amount of time in order to be verified
and handled in the proper manner.
MR. PAULEY agreed that there were relationships, particularly on
the North Slope, where there were contractors and principals who
each had their different responsibilities under the laws. He
stated that they each could be doing audit reports and under SB 41,
they would be allowed to share those reports without losing the
privilege otherwise. Mr. Pauley agreed that it could take some
time to sort out who had responsibility for which area.
REPRESENTATIVE BERKOWITZ asked if Ms. Adair might address the
proposed amendment.
Number 2455
JANICE ADAIR, Director, Division of Environmental Health
Department of Environmental Conservation, advised members that the
department shared the same concerns as expressed by Representative
James, that sometimes promptly meant less than 10 days. She stated
that if there was a situation where there was an ongoing violation
that was causing harm, the department would want immediate
attention to whatever the violation was.
TAPE 97-52, SIDE B
Number 000
MS. ADAIR stated that they were talking about promptly initiating
appropriate efforts to achieve compliance, or within 10 days, that
she felt it was appropriate that things be done promptly, or within
some set period of time.
CHAIRMAN GREEN asked Mr. Adair if using the word "promptly" would
pass muster because in some cases an audit could not be submitted
within 10 days.
MS. ADAIR agreed that sometimes promptly might be "right now", and
sometimes it could be a situation where the company needed to order
a part, or the need to wait until spring for construction purposes;
however, in no case could the company continue something that had
caused injury, but to correct the problem "promptly" might be
impacted by conditions outside the company's immediate control.
REPRESENTATIVE BERKOWITZ withdrew Amendment 10. There being no
objection, Amendment 10 was withdrawn.
REPRESENTATIVE BERKOWITZ moved to adopt Amendment 11, HCS CSSB 41,
page 7, line 6, following the word "court", insert; , hearing
officer, or arbitrator; page 7, following line 18, insert a new
paragraph to read: (4) audit report contains evidence that is
relevant to a claim by an employee of the owner or operator that
the employee's compensation, the employee's terms, conditions, or
privileges of employment, or decisions about the employee's
opportunities for promotions, pay increases, or changes of duties
were adversely affected by the employee's participation in the
audit; and renumber the following paragraphs accordingly. Page 7,
following line 23, insert a new subsection to read: (b) An
arbitrator may require disclosure of confidential self-evaluation
and analysis contained in an audit report in an employee grievance
proceeding if the arbitrator determines, after an in camera review
consistent with the appropriate rules of procedure, that the audit
report contains evidence that is relevant to a claim by an employee
of the owner or operator that the employee's compensation, the
employee's terms, conditions, or privileges of employment, or
decisions about the employee's opportunities for promotions, pay
increase, or changes of duties were adversely affected by the
employee's participation in the audit. Page 7, line 25, following
"(a)", insert; or (b), page 7, following line 25, insert a new
subsection to read: (d) In this section, "employee" includes a
former employee.
REPRESENTATIVE PORTER objected for the purpose of discussion.
REPRESENTATIVE BERKOWITZ advised members that proposed Amendment 11
would protect whistle blowers. He stated that if there was a
whistle blower incident which resulted in retaliatory employee
action, that the audit itself might be relevant material and the
whistle blower should have access to it for that proceeding.
Number 108
MR. PAULEY advised members the sponsor would be opposed to
Amendment 11. He stated that they would be adding in an entirely
new element to the bill, and directed members attention to lines 1
and 2 of the amendment which would provide the concept of an
arbitrator. Mr. Pauley pointed out that there were some people who
had a problem with including an administrative hearing officer in
the bill, that it ought to be limited to the courts. Mr. Pauley
pointed out that because he had only received a copy of the
amendment that morning, he had not had the time to speak with the
lawyers they had worked with on the proposed legislation to ask
them what the impact would be of including an entirely new concept
to the bill.
MR. PAULEY stated that the bill was not about whistle blowers, that
in his view, it neither granted or removed any rights which whistle
blowers already had under separate laws. He directed members
attention to page 7, line 22, that included a provision under the
exceptions section to overcome privilege if it was shown that it
would result in a miscarriage of justice or the denial of a fair
trial to the party challenging the privilege.
REPRESENTATIVE BERKOWITZ asked that members refer to page 2, the
last two lines, "the privileged information is not admissible as
evidence or subject to discovery in (1) a civil action.
Representative Berkowitz advised members that would include
employment action, in his reading of the language, and stated that
when a net is thrown out as broadly as "any civil action", whether
legal or equitable, he was attempting to make sure that the wrong
fish did not get caught. He was fully insistent that the rights of
whistle blowers be protected, especially in a circumstance where
the individual was subsequently unable to defend him or herself.
Representative Berkowitz pointed out that while the mention of an
arbitrator might be somewhat troubling to the bill sponsor, some
times those employment hearings were done with an arbitrator which
was equivalent to a hearing officer.
Number 252
REPRESENTATIVE CROFT stated that it seemed to him that Amendment 11
followed the in camera review procedures, and arbitrator to him was
not as alarming as it appeared to be with the bill sponsor, that it
could simply mean a court substitute where ever appropriate, and
read it as being equivalent to a hearing officer. He noted that
the in camera review was required to be done under the appropriate
rules of procedure and, whomever, would be bound by the same rules.
Representative Croft stated that language appeared to be taken from
the bill itself with respect to an audit report proceeding; "If the
court or administrative hearing officer determines, after an in
camera review consistent with the appropriate rules of procedure".
Representative Croft pointed out that he was glad to hear the
sponsor say that retaliation, discrimination and those types of
things would likely be under the catch all; however, he would be
more comfortable if it was specifically stated that they would fall
under the catch all. He did not believe Amendment 11 would burden
the bill, but helped to clarify an area that was so broad, and it
ought to state where the exceptions applied.
REPRESENTATIVE PORTER spoke in opposition to proposed Amendment 11.
He stated that it was necessary to look at those types of
provisions in their best light, and then consider them in their
worst light, and if they could be subject to something that could
be abused. Representative Porter advised members that he could
think of no more likely situation than employees who may have not
received promotions, pay increases, or changes in duties that they
did not like to use whatever means they had at their disposal to
mess with the employer. He advised members that he liked the
balance that was in the bill which stated that those were things
that were not to be used in civil cases and it also had an
exception, and he felt that would be looked at as something
serious, not some wage dispute, et cetera.
REPRESENTATIVE JAMES agreed with the comments of Representative
Porter, and expressed that she was comfortable with the bill and
Amendment 11 was not necessary. She stated that she also agreed
with the sponsor in that SB 41 was not about whistle blowing, but
a bill that would try to make whistle blowing not an issue.
REPRESENTATIVE BERKOWITZ advised members that it was interesting to
him that the assumption was that the individual employee who
stepped forward was the one who was stepping out of line in a
whistle blowing circumstance, and it might indeed, be a life and
death situation, rather than the company that's responsible being
the one who was not adhering to the rules. He stated that the good
honorable companies, as described by Representative Porter and
Representative James, would not be in a whistle blower situation
because they would be complying with the rules. Representative
Berkowitz advised members that his intent was for those companies
that did not pay attention to the rules.
REPRESENTATIVE BERKOWITZ pointed out that they were already
granting immunity by telling people who had broken the law to
confess and all would be forgiven. He stated if members were to
apply that provision to the criminal code, he felt they would see
more generally, an entirely different result. Representative
Berkowitz explained that his intention was that in the instance
where the corporation was misbehaving, and in the instance where
the corporation was taking retaliation against someone, that person
should have recourse to facts when it gets to the point of having
to go to court. He further stated that he was not saying that good
companies should be pilloried in wrongful cases, they would still
be subject to an in camera review and still subject to all the
protections that a corporation was entitled to in a suit. It would
only be in the instance where a corporation had done something
wrong that the whistle blower protection would kick in and was not
a blanket exemption for whistle blowers. He recognized that the
bill was not about whistle blowing, but about protecting the
environment. Representative Berkowitz advised members that whistle
blowers would be one last line of protecting the environment, and
urged that members consider Amendment 11 in that light.
REPRESENTATIVE CROFT pointed out that the line references were
three lines off and one could just add three lines to those
referred to and it would coincide with Version "K", HCS CSSB 41 ().
CHAIRMAN GREEN believed that whistle blowers were currently
afforded some protection in statute.
REPRESENTATIVE CROFT agreed; however, advised members that "whistle
blower" was specifically defined, but there was no generic whistle
blower standards provided in the law.
CHAIRMAN GREEN asked if the objection was maintained.
REPRESENTATIVE PORTER maintained his objection, so Chairman Green
requested a roll call vote. In favor: Representatives Berkowitz
and Croft. Opposed: Representatives Porter, Rokeberg, James and
Chairman Green. Amendment 11 failed adoption by a vote of 4 to 2.
Number 598
CHAIRMAN GREEN advised members the House Judiciary Committee would
stand in recess until 5:30 p.m.
CHAIRMAN GREEN reconvened the House Judiciary Committee meeting at
5:45 p.m. Members present at the call to order were
Representatives Bunde, James, Croft, Berkowitz and Chairman Green.
Representatives Bunde and Rokeberg arrived at 5:47 p.m.
CHAIRMAN GREEN reminded members they were considering amendments to
HCS CSSB 41 prior to going into recess. He noted that one of the
amendments that had met with controversy had been revised to the
point where both the sponsor and the department were in agreement.
Chairman Green advised members that amendment would be considered
Amendment 3-A.
REPRESENTATIVE CROFT advised members that there were two standards
of proof, one involved what would be necessary to get an in camera
review, and the second would be that the judge would have to decide
if the violation should be revealed to the public. He stated that
it would be relatively easy to get a judge to look at a violation,
but difficult to get the judge to reveal it to the public.
REPRESENTATIVE CROFT moved to adopt Amendment 3-A, HCS CSSB 41 ( ),
page 7, after line 23, insert a new subsection (b) to read: (b)
A party seeking an in camera review as provided under (a) of this
section shall provide to the court of administrative hearing
officer a factual basis adequate to support a good faith belief by
a reasonable person that the documents or communications for which
disclosure is sought are likely to reveal evidence to establish
that an exception in (a) of this sections applies. Renumber
subsections accordingly. And on page 7, line 24, reword the
subsection as follows; (c) A party seeking disclosure of
confidential self-evaluation and analysis during an in camera
review under this section has the burden of providing that an
exception in (a) of this section applies. There being no
objection, Amendment 3-A, HCS CSSB 41 ( ) was adopted.
Number 791
CHAIRMAN GREEN advised members they would next consider Amendment
9, HCS CSSB 41 ( ).
REPRESENTATIVE BERKOWITZ moved to adopt Amendment 9, HCS CSSB 41,
page 7, line 30, following "for the violation disclosed", delete
the comma and insert or. Page 7, lines 30 and 31, and page 8, line
1, delete [, and for a violation discovered because of a disclosure
that was unknown to the owner or operator making the disclosure].
REPRESENTATIVE ROKEBERG objected for the purpose of discussion. He
asked which version of the bill the amendment addressed.
REPRESENTATIVE BERKOWITZ advised members that the amendment
referred to "H" version, and again, members could just add three to
the line number referenced and it would coincide with version "K".
MARIE SANSONE, Assistant Attorney General, Natural Resources
Section, Department of Law, advised members that the amendment
before the committee grew out of a meeting that Janice Adair had
with the Environmental Protection Agency. Ms. Sansone pointed out
that Ms. Adair had asked the regional council in Seattle,
Washington, to review the bill, who had secured review from the EPA
headquarters in Washington D.C. Ms. Sansone explained that the EPA
had very few concerns; however, this was one area of concern they
did express.
MS. SANSONE stated that for the purpose of convenience, they had
termed it the "fruit of the poisonous tree" problem, which was when
there was a disclosure, or evidence that disclosed a violation,
sometimes an issue could arise when subsequent violations were
discovered and if they would stem from the initial disclosure, or
tainted somehow so that there could not be immunity. Ms. Sansone
advised members that immunity could be granted for violations
disclosed, but it also included language that would allow someone
to disclose a factual scenario, or circumstances, conditions and
occurrences, and as long as those were disclosed and met the other
criteria of the bill, and the company could receive immunity for
that disclosure even though it did not specifically identify the
violation.
MS. SANSONE stated that the concern was what would happen if there
should be discoveries by the agency, or by the municipality, who
might some years later decide to look at whether the company had
cleaned up the violation, and corrected the problem so it would not
reoccur. Ms. Sansone advised members that the department felt that
was outside the scope of what was intended by the bill, and should
not be immunized, and by leaving the last clause in the bill it
created an ambiguity. Ms. Sansone believed the sponsor objected to
Amendment 9.
Number 1113
REPRESENTATIVE JAMES was not specifically clear as to what the
proposed amendment was doing and asked that Ms. Sansone repeat her
explanation of the amendment.
MS. SANSONE explained that subsection (a) was an introduction to
what immunity could be obtained for. She stated that an owner or
operator who came forward and made a voluntary disclosure of a
violation of environmental law, could disclose the actual law that
was being violated by reference, or could come in and not,
actually, identify the law, but describe circumstances, conditions
or occurrences that constituted the violation. Ms. Sansone advised
members if that company met all the other requirements of the bill,
he could be immunized from the penalty. She stated that the
question arose in the last clause where a violation was discovered
because of a disclosure that was unknown to the owner or operator.
Ms. Sansone advised members that Amendment 9 proposed the deletion
of that last clause so the owner or operator would be limited to
the four corners of his disclosure whether through a description of
the violation or actually identifying the specific regulation he
believed he was in violation of.
MS. SANSONE further explained that the problem with the last
clause, if it was subject to abuse, could cover violations well
beyond any disclosure. He may have disclosed having oil stains on
one site, and later when DEC was inspecting another site remembered
a prior disclosure and looked for that at another site, which was
not intended to be immunized under the purpose of the bill. Ms.
Sansone advised members that the concern was that the owner or
operator could make the argument that the reason DEC even bothered
to look was because the department knew he had previously disclosed
a violation on another area or property.
Number 1333
REPRESENTATIVE JAMES advised members if the person did not conduct
a self audit on a particular piece of property, he would have no
immunity on that parcel, only the one he reported violations on.
So, she did not see a situation occurring as described by Ms.
Sansone.
CHAIRMAN GREEN advised members that he would tend to agree with
Representative James. He stated that the example provided by Ms.
Sansone appeared that there might be intent, and he believed there
would have to be some trust involved. Chairman Green advised
members that an unknown violation that had been discovered by the
violator because of another self audit disclosure should not be
subject to penalty, but instead be given the opportunity to
disclose at the time of discovery, clean it up and be granted
immunity because he was honestly unaware of the violation.
Chairman Green stated that if it was the true intent to clean up
the environment and correct environmental problems, that should be
allowed, rather than having a cloud hanging over someone's head.
REPRESENTATIVE CROFT stated with respect to Representative James
statement whereby the owner or operator wanted immunity from both
sites that he should disclose both sites, and he felt Amendment 9
would address such a situation; however, if the amendment was
rejected, he was glad to put on the record that the "fruit of the
poisonous tree" did not extend to things that were not some how
related in a location sense and in a logical sense to the original
violation.
REPRESENTATIVE ROKEBERG advised members that he looked at it as
almost constructive amnesty, which was really the intent of the
bill. He stated that the intent of the bill was to encourage
disclosure, and asked if there were other safeguards provided
within the bill so a situation would not occur as described by Ms.
Sansone.
MS. SANSONE advised members there were many safeguards in the bill
and that the sponsor had been very cooperative in working with the
department to make sure they were appropriate. She stated that she
brought the issue to the attention of the committee because of a
concern expressed by the EPA attorneys. She stated that Amendment
9 was one solution that would address their concern in a very
literal way, although the department did feel the bill had a lot of
protections against abuse. Ms. Sansone pointed out that with the
record indicating that one disclosure would not allow an owner or
operator to immunize countless, unrelated violations, that the
record would provide the same protection as was being sought
through Amendment 9.
CHAIRMAN GREEN advised members that subsections (b) and (c) would
impose the protection of the environment because immunization would
not work if it was a threat to substantial injury, et cetera, and
it goes on to say that, "disclosure must be done promptly", so he
felt that would do away with the two year problem.
REPRESENTATIVE ROKEBERG advised members that in a real estate
transaction, it was typical to have a piece of real property that
was contaminated in some manner, and there was the requirement for
remediation of the problem prior to the sale of the property. He
stated that the actual cause or timing of the violation could have
taken place a number of years previously. He pointed out that if
he was going to buy the parcel, he would want to conduct a self
audit and then fix the problem so he could be in compliance, but
would not want to be penalized for bringing it to the attention of
the department.
Number 1857
CHAIRMAN GREEN believed the bill would act just as Representative
Rokeberg explained because he thought that when bringing a problem
to the attention of the agency, and requested assistance as to the
means of cleanup, that immunity would be granted because conditions
for being granted immunity would have been satisfied.
REPRESENTATIVE CROFT believed that was exactly right because for
things reasonably within the scope of a single disclosure did not
mean that every piece of property a person owned would be
immunized.
CHAIRMAN GREEN asked if the objection to the adoption of Amendment
9 was maintained. Representative James maintained her objection,
so a roll call vote was taken. In favor: Representatives Croft
and Berkowitz. Opposed: Representatives James, Bunde, Rokeberg,
and Chairman Green. Amendment 9, HCS CSSB 41 failed adoption by a
vote of 4 to 2. Representative Porter was absent during this vote.
Number 1945
CHAIRMAN GREEN advised members they would next consider Amendment
12-A.
REPRESENTATIVE BERKOWITZ offered Amendment 12-A, HCS CSSB 41, page
4, line 11, following "AS 09.25.455(b), insert (3) or AS 09.25.475
-- 09.25.480. Representative Bunde objected for the purpose of
discussion.
REPRESENTATIVE CROFT pointed out that the next three amendments,
12-A, 13 and 14 were non-objectionable, and things could possibly
be expedited if addressed as a package.
MS. SANSONE advised members that the next three amendments had been
prompted by information that Mr. Bundy, the U.S. Attorney, had
included in his letter. She explained that one of the concerns he
raised was whether a person could use the self audit information in
any way during agency follow up inspection. Ms. Sansone stated
that one area of the bill that talked about that was in the
proposed section AS 09.25.450, which created the audit privilege.
Ms. Sansone stated that in subsection (h), it began "unless the
privilege has been waived under 455(a), which is a provision that
allows owners and operators to expressly waive the privilege, or a
disclosure is made under 455(b)", which in the context of a
government agency was under a claim of confidentiality that the
disclosure was kept confidential under the Public Records Act, that
if there had been a disclosure under either scenario, the
government agency could use the audit report during a subsequent
inspection. Ms. Sansone stated that in looking through the bill,
she realized that another type of disclosure could be made by an
owner or operator in the context of the immunity sections, which
were .475 and .480. She advised members that they could address
some of Mr. Bundy's concerns by inserting a reference to those
sections in the bill.
MS. SANSONE stated that most likely, an owner or operator, in an
immunity situation if they made a disclosure, would either come out
and expressly waive the privilege under .455(a), or they would
prepare the claim of confidentiality statement, and Amendment 12-A
would, possibly, cover anything that might slip through the cracks.
She explained that they were disclosures that were allowed and
recognized under the statute.
TAPE 97-53, SIDE A
Number 000
CHAIRMAN GREEN stated without objection, Amendment 12-A, HCS CSSB
41 was adopted.
REPRESENTATIVE BERKOWITZ moved to adopt Amendment 13, HCS CSSB 41,
page 4, following line 27, insert a new subsection (k) to read:
(k) There is no privilege under this section for documents or
communications in a criminal proceeding. There being no objection,
Amendment 13, HCS CSSB 41 was adopted.
REPRESENTATIVE BERKOWITZ moved to adopt Amendment 14, HCS CSSB 41,
page 7, line 14, following "the environment offsite", insert; , or
evidence of the causes and circumstances leading to such injury or
imminent or present threat of such injury. There being no
objection, Amendment 14, HCS CSSB 41 was adopted.
REPRESENTATIVE CROFT moved to adopt Amendment 15, HCS CSSB 41, page
14, following line 7, insert new bill sections to read: *Sec. 3.
Section 1 of this Act and AS 09.25.450, 09.25.455, 09.25.460,
09.25.465, 09.25.475, 09.25.480, 09.25.485, and 009.25.490, enacted
by sec. 2 of this Act, are repealed three years after the effective
date of this Act.
* Sec. 4 TRANSITIONAL PROVISION. Notwithstanding sec. 3 of
this Act,
(1) the privileged information in an audit report
that was completed before three years after the effective date of
this Act retains its privileged nature after that date to the same
extent as if the statutes repealed in sec. 3 of this Act had not
been repealed; and
(2) the immunity applicable to voluntary disclosure
under AS 09.25.475, enacted by sec. 2 of this act, remains in
effect for a voluntary disclosure made before three years after the
effective date of this Act to the same extent that the immunity
applied before AS 09.25.475 was repealed. Renumber the following
bill section accordingly. Page 14, line 10, following "Act",
insert; and before repeal of AS 09.25.450 - 09.25.490 under sec. 3
of this Act.
REPRESENTATIVE CROFT noted that the line references cited to
Version "H". He explained that Amendment 15 would provide for a
sunset date. Representative Croft pointed out that the state of
Idaho was allowing their legislation to sunset, either because of
problems with the bill, or it did not provide its intended benefit.
He advised members that he would like the state of Alaska to have
the option to sunset this Act. Representative Croft advised
members that the language was crafted in a manner where an owner or
operator would not lose the privileges or immunities that had
occurred over the three year period. He stated that information
that was privileged during that period would remain privileged, and
events that became immunized would remain immunized.
Representative Croft stated that the amendment would force the
legislature to revisit the issue at a time certain, which he felt
was prudent, in particular with the evidence the committee had
heard that other states had decided, for various reasons, to change
their laws or allow them to sunset.
Number 390
REPRESENTATIVE JAMES did not have a problem with implementing a
sunset provision; however, did not know if three years was an
appropriate length of time. She pointed out that if there happened
to be a lot of problems within three years, the legislature had the
right to address the issue anyway.
REPRESENTATIVE ROKEBERG felt what members were considering was
excellent legislation, it was not a board or commission, and any
statutory enactment put on the books should be reviewed for its
efficacy and currency and the realm of its use, not just some
arbitrary cutoff date, which politicizes it and brings it back into
the arena. He stated that if the bill did not work in three years
it should be repealed, not sunsetted.
REPRESENTATIVE BUNDE asked that the sponsor of the bill speak to
proposed Amendment 15.
MR. PAULEY advised members the sponsor would oppose Amendment 15.
He advised members that he became somewhat nervous when he heard
the state of Idaho brought up as a model to follow, because, to the
best of his knowledge, Idaho was the only state that passed their
law with a sunset provision. Mr. Pauley stated that while
researching the issue, he found that one of the reasons that the
sunset provision was enacted was that the governor did not like the
bill, and it was the type of deal where the only way the governor
would sign the bill was if it included a sunset provision.
MR. PAULEY had advised members that subsequent to the passage of
that bill, Idaho was one of the states that came under intense EPA
scrutiny, and it became a situation, politically, in Idaho where
the EPA was questioning whether the state would retain its primacy
for certain programs and other threats, which basically created a
lot of negative publicity for their law.
MR. PAULEY stated that he believed comments made by Representative
Rokeberg represented the views of the sponsor; if SB 41 was good
legislation it ought to be passed, and if it did not work, it would
be repealed. He stated that there was no reason to include a
sunset clause. Mr. Pauley advised members that he had spoken to a
gentleman in Michigan who was in charge of implementing their
state's self audit law who had had 25 years of experience in
environmental enforcement, and he thought their law had been a
success. When asked if the law had generated any excess or
needless litigation in his state, the response was no, that his
agency had not had to enter into a single case of litigation for
either the immunity or privileged elements. Mr. Pauley pointed out
that he had had similar reactions from the environmental personnel
in the state of Texas. Mr. Pauley believed those laws were
positive, and did not see any reason for adding on a sunset
provision.
Number 670
CHAIRMAN GREEN pointed out that earlier the committee had heard
that some states were thinking about changing their self audit
laws, or doing away with them completely. He asked that Mr. Pauley
refresh members' memories on that matter.
MR. PAULEY explained that that was an element expressed in Mr.
Bundy's letter that by selectively giving emphasis to certain
facts, Mr. Pauley felt he told a story that was not quite realistic
in nature. He stated that Texas was changing its laws because the
EPA came in and threatened that they were going to revoke Texas'
authority to implement certain state delegated programs. Because
of that, after months of negotiations, the state of Texas worked
out a deal with the EPA, where if they made certain changes to
their law the EPA would not challenge the primacy approach. Mr.
Pauley pointed out that a lot of those changes were largely things
that had been added into SB 41 through the committee process. He
felt that made it highly likely that Alaska would not face those
same types of problems with the EPA, but wanted to clarify that the
fact that some other states were revisiting their disclosure laws
and making changes, was not because of their dissatisfaction, but
because they were getting brow-beaten by the federal government.
Number 764
REPRESENTATIVE BERKOWITZ pointed out that the way he read what Mr.
Bundy said in his letter was a pretty straightforward fact that the
Governor of New York did not want to have those immunities, as well
as some of the other states, and if that was because the EPA was
coming down, Alaska should probably contemplate what would happen
if the EPA attempted to interfere in Alaska's law.
REPRESENTATIVE BUNDE referred to the Idaho experience and wondered
if it would be more likely that SB 41 would be signed by the
governor if a sunset provision was included.
MS. SANSONE advised members that the EPA could make things very
difficult when they have questions about what the law meant and
request endless attorney general opinions interpreting the law,
which she fully expected they would be doing. Ms. Sansone stated
that that was a concern because there was the Title 5, Air Quality
permitting program and primacy of the state's drinking water
program. She felt a sunset provision would allow for a greater
level of comfort, and if problems did begin to surface everyone
would understand they would be dealt with. Ms. Sansone stated that
the bill could not simply be repealed once enacted without
addressing people's privilege or immunity because they would have
relied on the bill and taken actions in good faith.
Number 912
REPRESENTATIVE ROKEBERG advised members that it had been his
experience that the environmental community in the state of Alaska
would be looking at the bill and law under a fine toothed comb, or
microscope, for the next couple years to determine how successful
it was in accomplishing its goals. He would venture to say that
because of the importance of the legislation and what it would do,
there would be more than enough oversight to determine whether it
was worth it or not. Representative Rokeberg suggested that the
maker of the amendment 15, keep the amendment to use as a bill
repealer, at such time, if he wished. Representative Rokeberg
opposed Amendment 15.
REPRESENTATIVE BERKOWITZ advised members that he was concerned with
the prospect of the EPA breathing down the state's neck, and if
including a sunset provision would keep them more distant was worth
contemplating. He pointed out that once in a spitting contest with
the federal government there were no winners and he was not anxious
to take them on in a way that would not be constructive.
Representative Berkowitz stated that if it was found that a sunset
provision was keeping the EPA at bay, the legislature could renew
the sunset provision at the appropriate time, three years, five
years, et cetera, and it would be an easy step to take.
REPRESENTATIVE ROKEBERG advised members that the EPA would not be
kept off the state's back, and in fact were on the state of Alaska
and actually housed in the DEC building in Juneau. He stated that
the whole concept that Alaska would gain any currency with the
federal government over the acceptance of a sunset provision he did
not see happening, or even valid.
REPRESENTATIVE BERKOWITZ advised members that through testimony, it
was his understanding that the EPA did visit states, excessively,
that did not have sunset provisions, and states that had adopted
immunity provisions, which was the cause of his concern.
Number 1081
REPRESENTATIVE JAMES did not believe the legislature should make a
law based on threats they might feel from the EPA. She thought the
legislature ought to make law in a manner it was felt that goals
could be reached. Representative James stated if the law was
repealed because it was not working, it would be necessary to take
an action against it. She advised members that if a law sunsetted,
and the legislature did not take action, the law would be gone, and
she would rather have a situation where if something was wrong
action was necessary, rather than a lack of action and the
possibility of letting something good go away. Representative
James pointed out that even with a three year sunset clause, they
were not talking about the present legislature or the 21st
Legislature, but the 22nd Legislature, and stated that she would
feel more comfortable if she had a commitment from the governor
that it did not make any difference. Representative James did not
feel three years was adequate time to see if the process was
working. She expressed that the goal of the bill was to have more
compliance with environmental laws because of the incentive of
providing for self audits and disclosure.
REPRESENTATIVE BUNDE asked whether the maker of the amendment would
consider a friendly amendment for the bill to sunset in five years,
rather than three.
REPRESENTATIVE CROFT accepted that as a friendly amendment to
Amendment 15, and stated that five would replace "three" on lines
5, 8 and 11.
REPRESENTATIVE ROKEBERG objected to the friendly amendment to
Amendment 15. He stood by his original statement of whether or not
the bill needed a sunset clause at all.
REPRESENTATIVE ROKEBERG withdrew his objection to the friendly
amendment to Amendment 15, so changing three years to five years
was adopted to Amendment 15.
CHAIRMAN GREEN pointed out that would bring members back to
consideration of Amendment 15 and asked if the objection was
maintained. Representative James and Rokeberg maintained their
objection to Amendment 15.
REPRESENTATIVE CROFT advised members he believed that there were
EPA differences on various substantive aspects of the bill, but he
did not believe that there were EPA requirements of a repealer, or
that they had any interest in the sunset provision. He stated that
he did not know the governor's position, although he felt a sunset
provision would be more acceptable. Representative Croft pointed
out that there were also very substantial risks to the environment
that result from blanket immunities, and sunset provisions were
seen in major dangerous sorts of areas, where the state was worried
about the effects and not just have the opportunity to take second
look, but be forced to take that second look. Representative Croft
advised members that he believed the legislature ought to be
forced, once in the life of the legislation, to look at what it had
done and determine at that point if they wanted to maintain the
law.
REPRESENTATIVE CROFT stated that the fact that the 23rd Legislature
would be reviewing the law seemed to be a positive for the
amendment, because it would be a whole new group that would be
forced to consider if the law was still good and accomplishing its
intent.
MR. PAULEY reemphasized that the sponsor was opposed to the
amendment. He reiterated that there was wide spread support of the
proposed legislation from the State Chamber of Commerce to the
Alaska Oil and Gas Association, the mining sector, forestry
industry and seafood processors because it was a good idea, not for
two years, or five years, but for as long as they intend to be
doing business in the state of Alaska and trying to be good
partners with the community and fulfilling their role in protecting
the environment. Mr. Pauley stated that to add a sunset provision,
in the sponsor's view, would be sending a message that there was an
element of doubt as to whether or not the law would work. He
stated, as indicated before, he had letters he would be happy to
share with committee members from the Governor of Michigan, New
Hampshire, and also an article about the Governor of Colorado, of
whom were all strongly defending their state's audit laws.
MR. PAULEY stated with regard to the EPA, the Senator's office
believed if a sunset provision were added, that if anything, it
would make it more likely that the EPA would add extra scrutiny,
rather than less likely because the EPA's objective was to try to
defeat the laws. If they knew the law included a sunset clause, he
felt it would increase the chance they would possibly conduct
double the number of inspections, increasing enforcement efforts
and other things in an attempt undermine public support for the
bill. Mr. Pauley pointed out that was exactly what he felt had
been the case in the state of Idaho.
MR. PAULEY stated that if SB 41 would become law without the sunset
provision, it would be necessary to acknowledge the fact, as stated
by Ms. Adair, that when she met with the Region 10 EPA Council,
they grudgingly admitted that from their perspective, SB 41 was the
best crafted self audit law that they had seen in the country.
Number 1666
MR. PAULEY stated with regard to the Governor's position, Janice
Adair testified in the Senate Finance Committee that the
administration did not have a philosophical difference with the
sponsor on the bill. He noted also, that he had repeatedly heard
from Mike Abbott, with the administration, that he was optimistic
that the governor would sign the bill.
Number 1728
MS. SANSONE added that some of the states that had been very active
and aggressive in the field, like Colorado and Texas, had
approached the EPA with the proposal that the EPA should allow a
test period of two or three years to see how the law was operating
and if it was producing results, or if some of the fears that the
EPA had expressed were materializing. Ms. Sansone stated that the
notion of revisiting the law had been advanced by a number of the
more aggressive states, and those states felt confident that they
would see results. Ms. Sansone advised members that the
transitional provisions would be important, and if the bill was to
be sunsetted or later revisited, that the advanced notice to the
people would be very important.
CHAIRMAN GREEN asked if the objection was maintained to Amendment
15, HCS CSSB 41. Representative Rokeberg maintained his objection,
so Chairman Green requested a roll call vote. In favor:
Representatives Bunde, Croft and Berkowitz. Opposed:
Representatives Rokeberg, James and Chairman Green. Representative
Porter was not in attendance during this vote. Amendment 15, HCS
CSSB 41 failed adoption by a vote of 3 to 3.
REPRESENTATIVE ROKEBERG moved to report HCS CSSB 41 (JUD) out of
committee with individual recommendations and attached fiscal
notes. There being no objection, HCS CSSB 41 (JUD) was reported
out of committee.
Number 1917
CHAIRMAN GREEN called a brief at ease at 6:52 p.m., and he
reconvened the meeting at 6:55 p.m.
HB 207 - EMPLOYER DRUG TESTING PROGRAM
Number 1930
CHAIRMAN GREEN advised members that Jeff Logan again would address
the committee on HB 207, "An Act relating to employer drug and
alcohol testing programs," which had been heard previously that
day.
JEFF LOGAN, Legislative Assistant to Representative Joe Green,
Sponsor of HB 207, explained that the two proposed amendments had
been requested by employee organizations. Mr. Logan advised
members that Amendment 1, as designated by the Chairman, dealt with
the privacy of the sample attainment process. He noted that there
was a horror story brought to the attention of the sponsor that
there was the case where an employer, basically, went out to the
field and said, okay, we're going to do a test, and there was no
provision for privacy made to the employees. Mr. Logan advised
members that the amendment simply required that sample collection
should be performed in a manner that guaranteed the individual's
privacy, as well as to assure that by doing so, the sample would
not be contaminated, adulterated or misidentified.
MR. LOGAN pointed out that the concern with the last three terms of
the amendment was that there was still the chain of custody
procedures called for in the bill.
REPRESENTATIVE JOE GREEN moved to adopt Amendment 1, HB 207, page
5, line 17 following ".", insert; Sample collection shall be
performed in a manner that guarantees the individual's privacy to
the maximum extent consistent with ensuring that the sample is not
contaminated, adulterated, or misidentified. There being no
objection, Amendment 1, HB 207 was adopted.
REPRESENTATIVE JOE GREEN moved to adopt Amendment 2, HB 207, page
6, following line 16, insert a new subsection to read; (e) A drug
test conducted under this section for a drug for which the United
States Department of Health and Human Services has established a
cutoff level shall be considered to have yielded a positive result
if the test establishes the presence of the drug at levels equal to
or greater than that cutoff level. For a drug for which the United
States Department of Health and Human Services has not established
a cutoff level, the employer shall, in the written policy under AS
23.10.620, inform employees of the cutoff level that the employer
will use to establish the presence of the drug.
MR. LOGAN explained that the second amendment was also brought to
the sponsor's attention by an employee organization. He advised
members that the concern was that the bill spoke to testing, but
did not reference the levels that illegal substances were being
tested for. Mr. Logan stated that Amendment 2 adopted the federal
standards for cutoff levels. He provided an example of the cutoff
level for marijuana which was 50 nanograms per milliliter. Mr.
Logan explained that if the test results showed 40 nanograms per
milliliter it would fall below the level. Mr. Logan explained that
the concern was that employees know up front what was going to be
tested for and Amendment 2 should address that concern.
CHAIRMAN GREEN advised members that hearing no objection, Amendment
2, HB 207, was adopted.
CHAIRMAN GREEN offered Amendment 3, HB 207, page 5, line 1,
following ".", insert; Each employer shall ensure that all persons
designated to supervise employees receive at least 60 minutes of
training on alcohol misuse and receive at least an additional 60
minutes of training on controlled substances use. The training
will be used by the supervisors to determine whether reasonable
suspicion exists to require an employee to undergo testing under
23.10.640.
REPRESENTATIVE ROKEBERG objected.
MR. LOGAN explained that Amendment 3 was another item brought to
Representative Green's attention by employee organizations
regarding the concern that the current version of HB 207 did not
mention how, or who, would be observing the behavior that might
lead to an indication or conclusion of drug abuse, or alcohol
misuse. He advised members that the proposed language was the same
as in the federal code.
REPRESENTATIVE ROKEBERG noted that the question had been raised in
the House Labor and Commerce Committee, and Amendment 3 was an
endeavor on the part of Representative Joe Green, and commended the
maker of the amendment and the sponsor of the bill for looking into
the concern that had been expressed. He advised members that one
of his concerns was requiring two hours of training for every
supervisor in the state and the private sector, and questioned what
the fiscal note would be from the private sector.
REPRESENTATIVE ROKEBERG felt it was the intent to allow for
supervisors to have some training, but the amendment, again, would
require all supervisors to have the training. He asked Mr. Logan
how that was applied in federal law in regards to the private
sector's fiscal impact.
Number 2210
MR. LOGAN explained that it would not be every private sector
employee in the state that would fall under the provisions of
Amendment 3, but only those employers who had established a drug
and alcohol program and sought the indemnity that the statute
offered. Mr. Logan noted that he could not speak to the cost
effect of how the federal code was applied.
CHAIRMAN GREEN pointed out that while he shared the concern
expressed by Representative Rokeberg, that by the same token, it
was an indemnity that the company would be getting in return for
training some personnel to know what to look for. He expressed
that it could be bad in the fact that all persons designated by a
company would be required to receive training; however, by that
training, those supervisors would be able to identify problem
employees before they actually became a problem.
REPRESENTATIVE ROKEBERG advised members that he would have no
problem with the amendment if there was a means to limit the number
of people who would be trained and performing the act of suspicion.
He pointed out that to limit the number of supervisors required, it
would also limit the cost effects and also not have everyone be the
local in-house drug detective. Representative Rokeberg felt a
limited number, or designated number of supervisors could be
reflected in the amendment and that would reduce his concern to a
great extent.
MATTHEW FAGNANI, President, Allvest Laboratories, Inc., advised
members that the training for supervisors was currently done both
ways. He advised members that the Federal Department of
Transportation, Federal Highways Administration had amended their
rules approximately 18 months ago to include all supervisors who
had supervisory authority over employees to receive the training.
He pointed that they follow the Federal DOT for guideline purposes
to establish policies, such as HB 207. Mr. Fagnani advised members
that the supervisors would only be required to undergo the training
one time, and did not require recurrent training, while others did.
MR. FAGNANI pointed out that the training methods varied. He
advised members that he taught a class of 35 people that afternoon
where each paid $69 to sit in a two hour training class. Mr.
Fagnani noted that there were also video tapes available that could
be repeatedly shown to all new supervisors. He did not believe it
would be a huge financial burden on the companies, but the idea was
that someone within the company undergo training to identify when
there was reasonable cause to suspect in the workplace.
Number 2382
CHAIRMAN GREEN suggested amending Amendment 3 by deleting the word
[all] on line 1 of the amendment, and insert; at least one
designated [to] person shall, and delete [designated to supervise
employees], and on line 6, delete [supervisors] and insert
designee(s). The amendment would then read: Each employer shall
ensure that at least one designated person shall receive at least
60 minutes of training on alcohol misuse and receive at least an
additional 60 minutes of training on controlled substances use.
The training will be used by the designee(s) to determine whether
reasonable suspicion exists to require an employee to undergo
testing under 23.10.630.
REPRESENTATIVE ROKEBERG advised members that anything that would
clarify the language and limit the number of supervisors required
to undergo the training he would go along with. He pointed out
that $69 for a 2 hour session, plus the individual losing 2 hours
of employment time could result in a cost of over $100 per person,
and pointed out that there was a definite economic impact.
CHAIRMAN GREEN advised members he certainly understood
Representative Rokeberg's concern, and agreed.
REPRESENTATIVE ROKEBERG moved a conceptual amendment that would
limit the number of people designated, unless the Chair was
satisfied with the language he proposed.
CHAIRMAN GREEN felt the amendment to Amendment 3, as he stated it,
would accomplish the concern that was being expressed.
TAPE 97-53, SIDE B
Number 000
REPRESENTATIVE ROKEBERG agreed with the amendment to Amendment 3,
as recommended by Chairman Green. There being no objection, the
amendment to Amendment 3 was adopted.
CHAIRMAN GREEN asked if there were any objections to Amendment 3.
Representative Rokeberg removed his objection to Amendment 3.
There being no objection, Amendment 3, HB 207, as amended was
adopted.
Number 033
REPRESENTATIVE JAMES pointed out that Mr. Logan had stated, prior
to the recess, that he would explain the bill, and she did not know
why the committee was addressing the issue.
REPRESENTATIVE CROFT stated that because members were late for
evening meetings, if it would be the Chair's desire that Mr. Logan
provide further explanation at a later date.
REPRESENTATIVE JAMES questioned whether they were addressing tort
reform, in some respect, with HB 207.
CHAIRMAN GREEN stated that it was not, that it was a drug test to
provide for a safe workplace.
REPRESENTATIVE JAMES asked if the bill was introduced to provide
protection for employers.
CHAIRMAN GREEN advised members that it would protect the employer
from litigation from drug testing its employees.
REPRESENTATIVE JAMES asked if the proposed legislation was a bill
that put more government in the lives of the public.
CHAIRMAN GREEN stated that it was not, that it put the burden on
the employer to conduct his own drug screening for the immunity he
would gain by having a posted, outlined drug program.
REPRESENTATIVE CROFT stated that he had some concerns he would like
to express also.
ADJOURNMENT
Number 085
CHAIRMAN GREEN adjourned the House Judiciary Committee meeting at
7:15 p.m.
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