Legislature(1997 - 1998)

04/09/1997 01:10 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                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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