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