Legislature(1995 - 1996)
05/01/1996 08:10 AM House RES
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE RESOURCES STANDING COMMITTEE
May 1, 1996
8:10 a.m.
MEMBERS PRESENT
Representative Joe Green, Co-Chairman
Representative William K. "Bill" Williams, Co-Chairman
Representative Scott Ogan, Vice Chairman
Representative Alan Austerman
Representative Pete Kott
Representative Don Long
Representative Irene Nicholia
Representative John Davies
Representative Ramona Barnes
MEMBERS ABSENT
All Members Present
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 283(RLS)
"An Act relating to filing, recording, and indexing of documents
with or by the Department of Natural Resources; repealing certain
filing requirements concerning property involving nonresident
aliens; and providing for an effective date."
- PASSED CSSB 283(RLS) OUT OF COMMITTEE
SENATE BILL NO. 257 am
"An Act relating to the taking of game or fish for public safety
purposes."
- PASSED SB 257 am OUT OF COMMITTEE
CS FOR SENATE BILL NO. 262(RES)(ct rule fld)
"An Act relating to management of game populations for maximum
sustained yield for human harvest and providing for the replacement
of areas closed to consumptive uses of game; relating to management
of fish and game areas."
- PASSED HCS CSSB 262(RES) OUT OF COMMITTEE
CS FOR SENATE BILL NO. 199(FIN)
"An Act relating to environmental audits and health and safety
audits to determine compliance with certain laws, permits, and
regulations."
- PASSED HCS CSSB 199(RES) OUT OF COMMITTEE
CS FOR SENATE BILL NO. 247(RLS) am(efd fld)(ct rule fld)
"An Act restricting the use of certain funds deposited in the fish
and game fund; and relating to the powers and duties of the
commissioner of fish and game."
- SCHEDULED BUT NOT HEARD
PREVIOUS ACTION
BILL: SB 283
SHORT TITLE: DOCUMENT FILING, INDEXING, & RECORDING
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
JRN-DATE JRN-PG ACTION
02/09/96 2353 (S) READ THE FIRST TIME - REFERRAL(S)
02/09/96 2353 (S) RES, STA, FIN
02/09/96 2353 (S) FISCAL NOTE (DNR)
02/09/96 2354 (S) GOVERNOR'S TRANSMITTAL LETTER
03/08/96 (S) RES AT 3:30 PM BUTROVICH ROOM 205
03/08/96 (S) MINUTE(RES)
03/11/96 (S) RES AT 3:30 PM BUTROVICH ROOM 205
03/11/96 (S) MINUTE(RES)
03/13/96 (S) RES AT 3:30 PM BUTROVICH ROOM 205
03/13/96 (S) MINUTE(RES)
03/14/96 2737 (S) RES RPT 4DP 1NR
03/14/96 2737 (S) PREVIOUS FN (DNR)
04/10/96 3135 (S) STA REFERRAL WAIVED
04/17/96 (S) FIN AT 5:00 PM SENATE FINANCE 532
04/18/96 (S) FIN AT 9:00 AM SENATE FINANCE 532
04/19/96 (S) FIN AT 8:30 AM SENATE FINANCE 532
04/23/96 (S) FIN AT 8:30 AM SENATE FINANCE 532
04/23/96 3445 (S) FIN RPT 1DP 6NR
04/23/96 3445 (S) PREVIOUS FN (DNR)
04/24/96 (S) RLS AT 10:30 AM FAHRENKAMP RM 203
04/24/96 (S) MINUTE(RLS)
04/25/96 (S) RLS AT 10:30 AM FAHRENKAMP RM 203
04/25/96 (S) MINUTE(RLS)
04/25/96 3555 (S) RULES TO CALENDAR WITH CS 4/25/96
04/25/96 3557 (S) READ THE SECOND TIME
04/25/96 3558 (S) RLS CS ADOPTED UNAN CONSENT
04/25/96 3558 (S) ADVANCED TO THIRD READING UNAN
CONSENT
04/25/96 3558 (S) READ THE THIRD TIME CSSB 283(RLS)
04/25/96 3558 (S) PASSED Y20 N-
04/25/96 3558 (S) EFFECTIVE DATE(S) SAME AS PASSAGE
04/25/96 3581 (S) TRANSMITTED TO (H)
04/26/96 4034 (H) READ THE FIRST TIME - REFERRAL(S)
04/26/96 4034 (H) RESOURCES, FINANCE
04/29/96 (H) RES AT 8:00 AM CAPITOL 124
04/29/96 (H) MINUTE(RES)
05/01/96 (H) RES AT 8:00 AM CAPITOL 124
BILL: SB 257
SHORT TITLE: TAKING FISH OR GAME FOR PUBLIC SAFETY
SPONSOR(S): SENATOR(S) ZHAROFF
JRN-DATE JRN-PG ACTION
02/02/96 2282 (S) READ THE FIRST TIME - REFERRAL(S)
02/02/96 2282 (S) RES, JUD
02/19/96 (S) RES AT 3:30 PM BUTROVICH ROOM 205
02/19/96 (S) MINUTE(RES)
02/21/96 2488 (S) RES RPT 5DP
02/21/96 2488 (S) ZERO FISCAL NOTE (F&G)
03/22/96 (S) JUD AT 9:00 AM BELTZ ROOM 211
03/22/96 (S) MINUTE(JUD)
03/25/96 (S) RLS AT 7:00 PM FAHRENKAMP RM 203
03/25/96 (S) MINUTE(RLS)
03/25/96 2862 (S) JUD RPT 4DP
03/25/96 2862 (S) ZERO FISCAL NOTES (DPS-2)
03/25/96 2862 (S) PREVIOUS ZERO FN (F&G)
04/03/96 3045 (S) RULES TO CALENDAR 4/3/96
04/03/96 3045 (S) READ THE SECOND TIME
04/03/96 3046 (S) ADVANCED TO THIRD READING UNAN
CONSENT
04/03/96 3046 (S) READ THE THIRD TIME SB 257
04/03/96 3046 (S) PASSED Y12 N7 E1
04/03/96 3046 (S) MILLER NOTICE OF RECONSIDERATION
04/04/96 3070 (S) HELD ON RECONSIDERATION TO 4/9
CALENDAR
04/09/96 3097 (S) HELD ON RECONSIDERATION TO 4/10
CALENDAR
04/10/96 3129 (S) PLACED AT BOTTOM OF CALENDAR
04/10/96 3134 (S) RECON TAKEN UP - IN THIRD READING
04/10/96 3134 (S) RETURN TO SECOND FOR AM 1 UNAN
CONSENT
04/10/96 3134 (S) AM NO 1 ADOPTED UNAN CONSENT
04/10/96 3134 (S) AUTOMATICALLY IN THIRD READING
04/10/96 3134 (S) PASSED ON RECONSIDERATION Y20 N-
04/10/96 3136 (S) TRANSMITTED TO (H)
04/12/96 3690 (H) READ THE FIRST TIME - REFERRAL(S)
04/12/96 3690 (H) RESOURCES, JUDICIARY
04/26/96 (H) RES AT 8:00 AM CAPITOL 124
04/26/96 (H) MINUTE(RES)
04/29/96 (H) RES AT 8:00 AM CAPITOL 124
04/29/96 (H) MINUTE(RES)
05/01/96 (H) RES AT 8:00 AM CAPITOL 124
BILL: SB 262
SHORT TITLE: MANAGEMENT OF FISH/GAME POPULATION & AREA
SPONSOR(S): SENATOR(S) MILLER, Sharp, Pearce, Halford, Green,
Frank, Taylor
JRN-DATE JRN-PG ACTION
02/02/96 2286 (S) READ THE FIRST TIME - REFERRAL(S)
02/02/96 2286 (S) RES, JUD
02/05/96 2309 (S) COSPONSOR(S): TAYLOR
02/12/96 (S) RES AT 3:30 PM BUTROVICH ROOM 205
02/12/96 (S) MINUTE(RES)
03/08/96 (S) RES AT 3:30 PM BUTROVICH ROOM 205
03/08/96 (S) MINUTE(RES)
03/11/96 (S) RES AT 3:30 PM BUTROVICH ROOM 205
03/11/96 (S) MINUTE(RES)
03/12/96 2709 (S) RES RPT CS 5DP 1NR SAME TITLE
03/12/96 2709 (S) FISCAL NOTE TO SB & CS (F&G)
03/18/96 2785 (S) FIN REFERRAL ADDED
03/26/96 2910 (S) JUD REFERRAL WAIVED Y12 N8
04/03/96 (S) FIN AT 9:00 AM SENATE FINANCE 532
04/03/96 (S) MINUTE(FIN)
04/04/96 3065 (S) FIN RPT 2DP 2NR (RES)CS
04/04/96 3065 (S) PREVIOUS FN (F&G)
04/09/96 (S) RLS AT 12:20 PM FAHRENKAMP RM 203
04/09/96 (S) MINUTE(RLS)
04/10/96 3112 (S) RULES TO CAL & 1 NR 4/10/96
04/10/96 3116 (S) READ THE SECOND TIME
04/10/96 3116 (S) RES CS ADOPTED UNAN CONSENT
04/10/96 3116 (S) ADVANCE TO THIRD READING FLD Y12 N8
04/10/96 3116 (S) THIRD READING 4/11 CALENDAR
04/11/96 3168 (S) READ THE THIRD TIME CSSB 262(RES)
04/11/96 3168 (S) PASSED Y12 N8
04/11/96 3169 (S) COURT RULE CHANGES FAILED Y13 N7
04/11/96 3176 (S) TRANSMITTED TO (H)
04/12/96 3690 (H) READ THE FIRST TIME - REFERRAL(S)
04/12/96 3690 (H) RESOURCES, JUDICIARY
04/26/96 (H) RES AT 8:00 AM CAPITOL 124
04/26/96 (H) MINUTE(RES)
04/29/96 (H) RES AT 8:00 AM CAPITOL 124
04/29/96 (H) MINUTE(RES)
05/01/96 (H) RES AT 8:00 AM CAPITOL 124
BILL: SB 199
SHORT TITLE: ENVIRONMENTAL & HEALTH/SAFETY AUDITS
SPONSOR(S): SENATOR(S) LEMAN,Pearce
JRN-DATE JRN-PG ACTION
01/05/96 2058 (S) PREFILE RELEASED - 1/5/96
01/08/96 2058 (S) READ THE FIRST TIME - REFERRAL(S)
01/08/96 2058 (S) RESOURCES
01/31/96 (S) RES AT 3:30 PM BUTROVICH ROOM 205
01/31/96 (S) MINUTE(RES)
02/02/96 2287 (S) FIN REFERRAL ADDED
03/06/96 (S) RES AT 3:30 PM BUTROVICH ROOM 205
03/06/96 (S) MINUTE(RES)
03/11/96 (S) RES AT 3:30 PM BUTROVICH ROOM 205
03/11/96 (S) MINUTE(RES)
03/12/96 2708 (S) RES RPT CS 4DP 1NR NEW TITLE
03/12/96 2708 (S) FISCAL NOTES TO SB & CS (DEC, F&G)
03/12/96 2708 (S) INDETERMINATE FISCAL NOTE (DNR)
03/12/96 2708 (S) ZERO FISCAL NOTES TO SB & CS
(DOT, MVA)
03/20/96 (S) FIN AT 9:00 AM SENATE FINANCE 532
03/21/96 (S) MINUTE(FIN)
03/26/96 (S) FIN AT 9:00 AM SENATE FINANCE 532
03/27/96 (S) MINUTE(FIN)
04/02/96 (S) FIN AT 9:00 AM SENATE FINANCE 532
04/03/96 (S) FIN AT 9:00 AM SENATE FINANCE 532
04/03/96 (S) RLS AT 1:15 PM FAHRENKAMP RM 203
04/03/96 (S) MINUTE(FIN)
04/03/96 (S) MINUTE(RLS)
04/03/96 3041 (S) FIN RPT CS 1DP 4NR 1AM NEW TITLE
04/03/96 3041 (S) FNS TO CS (DEC, DNR)
04/03/96 3041 (S) ZERO FN TO CS (DOT)
04/03/96 3041 (S) PREVIOUS FN (F&G)
04/03/96 3041 (S) PREVIOUS ZERO FN (DMVA)
04/09/96 3092 (S) RULES TO CALENDAR & 1NR 4/9/96
04/09/96 3094 (S) READ THE SECOND TIME
04/09/96 3094 (S) FIN CS ADOPTED Y11 N5 E4
04/09/96 3095 (S) ADVANCE TO THIRD READING FLD
Y11 N5 E4
04/09/96 3095 (S) THIRD READING 4/10 CALENDAR
04/10/96 3128 (S) READ THE THIRD TIME CSSB 199(FIN)
04/10/96 3128 (S) PASSED Y11 N9
04/10/96 3128 (S) SALO NOTICE OF RECONSIDERATION
04/11/96 3161 (S) RECON TAKEN UP - IN THIRD READING
04/11/96 3161 (S) PLACED AT BOTTOM OF CALENDAR
04/11/96 3171 (S) PASSED Y11 N9
04/11/96 3176 (S) TRANSMITTED TO (H)
04/12/96 3689 (H) READ THE FIRST TIME - REFERRAL(S)
04/12/96 3690 (H) RESOURCES, LABOR & COMMERCE
04/17/96 (H) RES AT 8:00 AM CAPITOL 124
04/17/96 (H) L&C AT 3:00 PM CAPITOL 17
04/17/96 (H) MINUTE(RES)
04/17/96 (H) MINUTE(L&C)
04/19/96 (H) L&C AT 3:00 PM CAPITOL 17
04/19/96 (H) MINUTE(L&C)
04/22/96 (H) RES AT 8:00 AM CAPITOL 124
04/22/96 (H) MINUTE(RES)
04/23/96 (H) RES AT 3:00 PM CAPITOL 124
04/23/96 (H) MINUTE(RES)
04/24/96 (H) RES AT 8:00 AM CAPITOL 124
04/24/96 (H) MINUTE(RES)
04/29/96 (H) RES AT 10:00 AM CAPITOL 17
04/29/96 (H) MINUTE(RES)
04/30/96 (H) RES AT 8:00 AM CAPITOL 17
04/30/96 (H) MINUTE(RES)
05/01/96 (H) RES AT 8:00 AM CAPITOL 124
WITNESS REGISTER
NICO BUS, Acting Director
Division of Support Services
Department of Natural Resources
400 Willoughby Avenue
Juneau, Alaska 99801-1724
Telephone: (907) 465-2406
POSITION STATEMENT: Testified in support of CSSB 283(RLS)
GORDON WILLIAMS, Legislative Assistant
to Senator Fred Zharoff
Alaska State Legislature
Capitol Building, Room 121
Juneau, Alaska 99801-1182
Telephone: (907) 465-3473
POSITION STATEMENT: Gave sponsor statement for SB 257 am
WAYNE REGELIN, Director
Division of Wildlife Conservation
Department of Fish & Game
P.O. Box 25526
Juneau, Alaska 99802-5526
Telephone: (907) 465-4190
POSITION STATEMENT: Testified on CSSB 262(RES) (ct rule fld)
KEVIN SAXBY, Assistant Attorney General
Natural Resources Section
Department of Law
1031 West 4th Avenue, Suite 200
Anchorage, Alaska 99501-1994
Telephone: (907) 269-5100
POSITION STATEMENT: Testified on CSSB 262(RES) (ct rule fld)
STEVEN DAUGHERTY, Assistant Attorney General
Natural Resources Section
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3600
POSITION STATEMENT: Testified on CSSB 262(RES) (ct rule fld)
SENATOR LOREN LEMAN
Alaska State Legislature
Capitol Building, Room 115
Juneau, Alaska 99801-1182
Telephone: (907) 465-2095
POSITION STATEMENT: Sponsor of SB 199
J. DAVENPORT
Address Unknown
Telephone: (918) 584-1962
POSITION STATEMENT: Testified in support of CSSB 199(FIN)
JOHN RILEY, Director
Litigation Support
Texas Natural Resources Conservation Commission
Address and Telephone Number Unknown
POSITION STATEMENT: Testified on CSSB 199(FIN)
SARA HANNAN, Representative
Alaska Environmental Lobby, Inc.
P.O. Box 22151
Juneau, Alaska 99802
Telephone: (907) 463-3366
POSITION STATEMENT: Testified in opposition to CSSB 199(FIN)
DWIGHT PERKINS, Special Assistant
Office of the Commissioner
Department of Labor
P.O. Box 21149
Juneau, Alaska 99802-1149
Telephone: (907) 465-2700
POSITION STATEMENT: Testified on the Proposed Committee Substitute
for CSSB 199(FIN)
MARIE SANSONE, Assistant Attorney General
Natural Resources Section
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3600
POSITION STATEMENT: Testified on the Proposed Committee Substitute
for CSSB 199(FIN)
NANCY WELLER, Medical Assistance Administrator
Division of Medical Assistance
Department of Health & Social Services
P.O. Box 110660
Juneau, Alaska 99811-0660
Telephone: (907) 465-3355
POSITION STATEMENT: Testified in support of the Proposed Committee
Substitute for CSSB 199(FIN)
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 the Proposed Committee Substitute
for CSSB 199(FIN)
MIKE PAULEY, Legislative Administrative Assistant
to Senator Loren Leman
Alaska State Legislature
Capitol Building, Room 115
Juneau, Alaska 99801-1182
Telephone: (907) 465-2095
POSITION STATEMENT: Testified on the Proposed Committee Substitute
for CSSB 199(FIN)
ACTION NARRATIVE
TAPE 96-73, SIDE A
Number 001
CO-CHAIRMAN JOE GREEN called the House Resources Committee meeting
to order at 8:10 a.m. Members present at the call to order were
Representatives Green, Williams, Ogan, Austerman and Davies.
Members absent at the call to order were Representatives Barnes,
Kott, Long and Nicholia.
CSSB 283(RLS) - DOCUMENT FILING, INDEXING, & RECORDING
CO-CHAIRMAN GREEN announced the first order of business would be
CSSB 283(RLS). He asked Nico Bus to come forward to testify.
Number 043
NICO BUS, Acting Director, Division of Support Services, Department
of Natural Resources, said that Senate Bill 283 is a combination of
bills. House Bill 438 sponsored by Representative Tom Brice is the
recording bill by location index and the essence of that bill is
that the Recorder's Office has been doing recording by location
indexing since 1972 on a discretionary basis. When the workload
would get too heavy, that would be dropped and the Recorder's
Office would simply do grant or grantee. Section 5 of CSSB
283(RLS) would make that mandatory and guarantee a better quality
record in terms of researching the real estate files.
Number 123
MR. BUS further explained the other part of CSSB 283(RLS) is the
result of many years of process analyses by the Recorder's Office.
Knowing they have to do more with less, the office has tried to
streamline the operation to make it more uniform and easily
understood by the public and by the 14 different offices. In doing
so, the Recorder's Office has done everything they could on the
administrative side and those things which they were unable to do
are contained in this bill. The housekeeping measures would
actually make the recording process easier, there would be less
rejection and the documents could be turned around faster. The
department has met with their customers - the mining industry and
the title companies and they all support this legislation. He
noted the department will be saving some money and has prepared a
positive fiscal note. If CSSB 283(RLS) is passed, the department
projects a savings between $140,000 and $145,000 annually. He
commented that in budget deliberations, the Senate recognized they
had reduced the department's budget immediately for 1997; the
department had hoped that could be delayed in order to catch up on
the backlog of archiving.
MR. BUS directed the committee's attention to a letter of support
from Alaska Land Title Association which represents all the title
companies which is 40 percent of the customers of the Recorder's
Office. He urged the committee's support of CSSB 283(RLS).
Number 293
CO-CHAIRMAN GREEN noted that Mr. Bus had testified that with this
legislation the department could do a better job, a faster job and
also save money. He asked what was wrong with the bill?
MR. BUS said this is a win/win for everyone involved.
Number 315
REPRESENTATIVE SCOTT OGAN made a motion and asked unanimous consent
to pass CSSB 283(RLS), Version C from the House Resources Committee
with individual recommendations and the attached positive fiscal
note. Hearing no objection, it was so ordered.
SB 257 am - TAKING FISH OR GAME FOR PUBLIC SAFETY
Number 352
CO-CHAIRMAN GREEN announced that SB 257 am was the next bill to be
heard.
Number 371
GORDON WILLIAMS, Legislative Assistant to Senator Fred Zharoff,
testified that SB 257 amended was introduced by Senator Zharoff in
response to a lot of problems expressed by individuals throughout
his district about habituated bears in communities which was
affecting people's feeling of safety. Additionally, it was felt
that the defense of life and property laws were not addressing the
situation with the habituated animals. Senator Zharoff met with
the Department of Fish & Game and the Board of Game last fall and
through those discussions, it was determined that at this point
neither the department nor the board had the clear authority to
make regulations for the taking of fish or game for public safety
reasons.
Number 474
MR. WILLIAMS explained that Section 1 of the bill provides that the
commissioner of the Department of Fish & Game can authorize the
taking of fish or game for public safety reasons. Section 2
addresses the Board of Game's authority in this area. In December,
Senator Zharoff addressed the Board of Game and the Attorney
General's Office was also present to notify the board that they
probably had never had the authority to make regulations for public
safety, clearly did not have it, probably couldn't adopt the
regulations that were before them at that meeting and probably
didn't have the authority to do some of the things they had done in
the past including defense of life and property, hunter education
classes, taking birds around airports and those types of things
that are done for public safety reasons. The Attorney General's
Office advised the board they needed to addressed the issue and out
of that came this legislation.
Number 563
CO-CHAIRMAN BILL WILLIAMS made a motion to pass SB 257 amended from
committee with individual recommendations.
CO-CHAIRMAN GREEN commented the committee had heard this bill
previously; however, not all the members were present. He asked if
there was further discussion.
Number 579
REPRESENTATIVE JOHN DAVIES referred to Section 1 and asked Mr.
Williams if there would be some consideration to alternate means
rather than disposing of the animal.
MR. WILLIAMS responded they envision the department working with
the board to establish criteria for how this will be implemented.
That will be done through a public process to establish steps that
a community or group would go through to contact the department and
explain what they have done to alleviate the habituated bear, moose
or whatever. He noted that Haines has put together a community
policy on exactly what needs to be done and he foresees something
along those guidelines but it would be developed along with the
board. While there's been no opposition to this bill, individuals
have expressed concern in that they don't want this bill viewed as
relieving the community responsibility for not attracting animals
in the first place. Those things need to be addressed on a
continuing basis to remove the attractions for the animals;
however, when the animals are clearly habituated, he thinks this is
a needed tool.
Number 709
REPRESENTATIVE OGAN asked what methodology would be in place to
ensure that this wasn't abused. The way he interpreted the statute
was for example, if there was a problem with birds at an airport,
as we've had recently, you could technically blast the birds, take
eggs or whatever. He asked if that was a fair interpretation of
the statute?
MR. WILLIAMS said it is envisioned that both the board and
department would establish the criteria. He noted the board has
done some things with regard to birds, but they're being told now
that they never clearly had the authority to implement regulations
for public safety so they can't do that type of thing unless it's
clarified in statute that they have those powers.
Number 808
CO-CHAIRMAN WILLIAMS made a motion to pass SB 257 am out of
committee with individual recommendations. Hearing no objection,
it was so ordered.
CSSB 262(RES) (ct rule fld) - MANAGEMENT OF FISH/GAME POPULATION &
AREA
CO-CHAIRMAN GREEN announced that CSSB 262(RES) would be the next
bill for consideration.
Number 868
REPRESENTATIVE ALAN AUSTERMAN noted that he had spoken against the
bill last week and would probably continue to have opposition, but
a number of legislators had contacted him with reference to their
wishes to have the opportunity to vote on this legislation on the
House floor. Therefore, he was going to withdraw his objection to
voting it out of committee.
CO-CHAIRMAN GREEN noted there had been some minor changes made.
The committee had before them proposed Committee Substitute,
Version O.
REPRESENTATIVE OGAN made a motion to adopt Committee Substitute,
Draft 9-LS 1431\O, dated 4/29/96 as the working draft. Hearing no
objection, it was so ordered.
Number 938
REPRESENTATIVE IRENE NICHOLIA inquired if the Department of Fish &
Game was going to comment on the Committee Substitute just adopted
by the committee.
CO-CHAIRMAN GREEN asked Wayne Regelin if he wished to comment on
the Committee Substitute?
Number 955
WAYNE REGELIN, Director, Division of Wildlife Conservation,
Department of Fish & Game, said, "I think the CS changed it from
replacing one acre for one acre rather than one for three and then
took out some of this where you were going to guarantee any lawyer
that sued us that they'd get rich." That helps a little bit, but
he didn't think it solves the basic problems the department has
with the bill and they are still very strongly opposed to it. He
said the Department of Law had some concerns about the trust
relationship. It's the first time it would be in statute and he
had expected a representative from the Department of Law to be
present at this hearing.
CO-CHAIRMAN GREEN noted this committee had also expressed some
concern about the trust aspect. Even though the "almost
invitation" to litigation only deals with closing, there is still
a concern if it also energizes further litigation. He had
expressed his concern at the previous hearing and still maintains
that concern.
Number 1034
REPRESENTATIVE DAVIES asked Mr. Regelin to comment on the
harvestable surplus, highest levels of human harvest and maximum
sustained yield definition.
MR. REGELIN responded, "I think those definitions, tied together,
would require the department in areas that are going to be managed
for intensive purposes to harvest one-third of the number of
animals born each year. Our feeling is that it's very difficult to
achieve that in most areas of Alaska. We approach it on areas
where we don't have any predators, such as on the Army bases in
Anchorage and that place, but in most areas of Alaska where you
have severe winters in the farther north in those areas, that it's
just not a level of harvest that's sustainable over time. Even if
we would reduce the wolf and bear populations to very, very low
levels, we probably couldn't achieve that level over time because
of the severe winter weather we have. So we have some real
concerns with that. It's the same language and definitions that
were in SB 77."
REPRESENTATIVE DAVIES commented that he was trying to contemplate
how the department would manage this if it's simply an unworkable
level. Based on Mr. Regelin's testimony that these goals were
simply unattainable, he wondered if in Mr. Regelin's view, there
would be litigation as a result of not meeting those goals.
MR. REGELIN said if this became law, the department would do their
very best to achieve those goals. They would probably reduce the
wolf and bear populations and see what they could maintain. He
didn't think that biological reality could be mandated by
legislation; the department would probably not achieve it and then
he'd probably get sued according to the way this bill is drafted.
Number 1214
REPRESENTATIVE DAVIES said, "I guess the next question I had is in
terms of this opening up new habitat that's called no net loss
features of this and based on restrictions -- is it your reading of
this bill that even a change in the methods of access would be
viewed as a restriction, if the change were to eliminate one method
of access?"
MR. REGELIN replied yes, he thought it's very clear that is what
this law does.
REPRESENTATIVE DAVIES asked if in Mr. Regelin's view it was
possible to find one for one? What are the typical sizes of an
area that those kinds of changes and restriction might apply to and
would those comparable areas be available within the geographic
regions all over the state?
MR. REGELIN said the way the Board of Game usually does that is
when they make regulations, it's a good sized area for the
convenience of the hunter. He noted there are 26 game management
units in the area, many with sub-units, so often it's done on a
sub-unit basis. In certain places where it's not necessary, it's
restricted by portions of the sub-unit if there's rivers or roads
that allow the hunter to know where they're at in the woods. These
areas are typically large. For example, on the North Slope where
the moose harvest was restricted in a big area even though the
moose are only along the river corridors and to find a replacement
for that size that the Board of Game could look at just doesn't
exist. He thought the result would be that the Board of Game
wouldn't be able to restrict because there's nothing else to open
up. He noted the Department of Law is looking at this and may be
able to provide additional information.
Number 1323
REPRESENTATIVE DAVIES referred to page 4, line 15, which states,
"The Board shall adopt regulations guaranteeing access to and for
continued consumptive uses" and asked if that was a similar kind of
restriction against any kind of restrictions?
MR. REGELIN said he thought the guarantee of access is a different
part of the bill and has its own special problems in his mind
because in many areas they allow hunting but they restrict it by
the number of permits. If the opportunity to hunt is guaranteed in
statute, he didn't think the department could by regulation
restrict them by permits. So in many of the trophy areas or where
they have to limit the number of animals taken, they probably won't
be able to do that. The other alternative is shorter seasons which
presents a "Catch 22" situation because if the season is shortened,
then another place has to be found to replace that.
Number 1382
CO-CHAIRMAN GREEN said, "On that same idea, under harvestable
surplus, where it talks about excluding those animals that are
taken for predation and human harvest, am I misreading that or does
that lead to a convolution of reducing the number of game?"
MR. REGELIN replied, "Over time, you would be mandated by the
regulation to always harvest one-third of the number born less
those that die from natural causes other than predation. And when
you have severe winters and you lose 10, 15 and even 30 percent of
the populations at times, you wouldn't be allowed to reduce the
harvest levels to allow the herds to rebuild. That's one of the
basic concerns we've had with this language from the beginning. I
should also say on the closure of these areas where restrictions,
there's a clause in there that says, `except for biological
emergencies' so what that means, I'm not sure. The Board of Game
doesn't manage by emergency, they try to think ahead so I would
think it would be difficult to say that the board was taking this
action for an emergency. Now the department has emergency
authority to close seasons when we reach certain harvest levels or
something unusual happens, so I don't think they'd be restricted in
that case because we call it emergency order. I'm not sure if
that's what they meant or not - the drafters."
CO-CHAIRMAN GREEN remarked like the severe winter when there were
so many killed by the railroad and also by freezing, etc.
MR. REGELIN thought the goals of the bill were to ensure higher
harvest levels which he didn't object to, but he didn't think the
means of getting there in this case were not very wise.
Number 1491
REPRESENTATIVE DAVIES asked, "Do you think it's possible that this
bill might have the opposite result in the sense that -- I'm trying
to envision being on the Board of Game and contemplating increasing
access to an area where suppose the population has increased and
you wanted to maybe add another method of access or add to the
length of the season - I might under the terms of this bill, be
pretty uncomfortable with making those additions when I knew that
if I had at some point in the future to produce that, I would be
prohibited from doing that. Wouldn't this actually - I think in
some respects have a dampening effect on opening up access when
there was some possibility that you might have to withdraw that
three or four years in the future?"
MR. REGELIN said it was a possibility that the Board of Game would
be reluctant to take a short term opportunity to harvest more
wildlife because in the long term, that level couldn't be
sustained. He added, "Or for instance in Unit 13, where we're
trying to reduce the caribou population and harvest, I think 15,000
caribou this year, if they're going to be forced to maintain that
harvest level some way, they probably wouldn't be able to do it.
They probably wouldn't do it in the first place."
Number 1567
REPRESENTATIVE OGAN said this subsection does not apply to
temporary closure based on biological emergency. If it's a tough
winter, it means that's a biological emergency. There is still
latitude in this legislation to manage wildlife. Section 1 says
that it's to be managed solely on a biological basis. The
legislation simply says that if an area is going to be closed, it
has to be closed for a good reason; not because some special
interest group wants to have the area closed.
Number 1626
MR. REGELIN said he agreed that that's probably what the intent of
the bill is, but individuals from the Departments of Fish & Game
and Law who have analyzed the bill believe these are real problems
and the department would probably end up in court.
Number 1647
CO-CHAIRMAN WILLIAMS referred to the deer and timber in the
Southeast area and asked how this would affect the timber industry.
MR. REGELIN said he didn't think it would have any affect on the
timber industry, but the Department of Law had some concerns with
the trust language so perhaps they should address that question.
Number 1683
REPRESENTATIVE NICHOLIA asked how this legislation would affect the
controlled use areas, which in her district are used to rebuild
their big game populations.
MR. REGELIN responded, "The way that we feel the bill is
structured, and it guarantees access by different methods and
means, that you wouldn't be able to do that. I'm not sure that we
wouldn't be able to maintain the ones that are in place now, but
new controlled use areas that restrict methods of access - I don't
think they'd be allowed because it's very clear that you can't
restrict methods of access except to protect habitat. You can't do
it to use methods of access to restrict harvest."
Number 1735
REPRESENTATIVE NICHOLIA commented, "Then, if we can't use
controlled use areas then you're probably going to tell me that we
can't use the restricting the human consumption uses - restricting
human uses?"
MR. REGELIN thought the board would still be able to restrict
seasons and bag limits but when they do, they would have to find
another area to open. He added that if this could be interpreted
that it's for a biological emergency, then they wouldn't have to do
that. It's the language regarding the emergency that concerns him
because he didn't think the actions taken by the Board of Game
could be construed as emergencies. During his 13 years of working
with the board, he recalled only twice when the board did emergency
actions because of having to give advance notice of a meeting.
Number 1815
REPRESENTATIVE NICHOLIA said, "I first got involved in fish and
game activities since 1984 and then I learned that the Yukon Flats
had a low moose population and they've been rebuilding every since.
They had low moose populations across the whole Yukon Flats, so I
don't see how that provision would help them because you don't
really want to open up one part of it and restrict one part of it
because then you would decrease the population in that one section
some more. It says if you restrict one area, then you have to open
up another portion of another area. I just don't see how that
would work."
MR. REGELIN said he thought it would be difficult for the board to
do that because there wouldn't be other areas to open.
Number 1868
REPRESENTATIVE NICHOLIA said under this bill if one area is
restricted for moose for example, then another area is supposed to
be opened up but what happens if the department doesn't open
another area.
MR. REGELIN said there are two things that would happen. The Board
of Game would not be allowed to close the area or the Department of
Fish and Game would be sued and he didn't know what the relief
would be if there's no area to open.
Number 1902
REPRESENTATIVE DAVIES said he was also concerned about the
restrictions on the use of revenues. He referred to page 3 which
includes a restriction on the utilization of revenue generated from
taxes, license fees and other fees paid by sportsmen or funds
received from federal aid in sport fish and wildlife programs and
prohibits the use of those funds in an area where consumptive use
of fish and game is not permitted or for the use for management of
nongame species and asked how these funds are used and what the
impact of this language would be on how the funds are used now.
MR. REGELIN replied that since the department has lost their
general funds, they are using fish and game funds which are license
fees, to help manage areas like Pack Creek, Cramer's Field and
McNeil River - although some of these are paid somewhat by user
fees - this legislation would prohibit the use of fish and game
funds for those in addition to prohibiting the use of those funds
for work on endangered species or nongame species. He noted the
department does a small amount of that now but mostly on species
that are either endangered, threatened or being petitioned to be
threatened. The reason they do that is that most of the time once
they start doing the research, they find there are more animals
than what people thought and the department feels the decisions on
listings should be based on the best data available so they try to
collect it. He thought the department had a good record of keeping
lots of species that were petitioned to be listed or actually
started through the process to stop them, like the goshawk in
Southeast.
Number 1992
REPRESENTATIVE OGAN asked if Mr. Regelin's discomfort would be
eased somewhat if the language on page 2, line 7, regarding
biological emergency was changed to biological basis?
MR. REGELIN responded it would certainly make it better in that
section about replacing the one for one. He would still have
concerns about the guaranteeing of access to hunt and no
restrictions on access by any kind of methods and means. He was
proud of some of their trophy areas and the walk in areas for
trophy management and quality hunting experiences where access is
restricted by various means and he would hate to lose those. Those
are areas were put in by hunters working in conjunction with the
department and he felt it was something that Alaska should continue
to offer to the hunting public.
Number 2055
REPRESENTATIVE OGAN asked if it was Mr. Regelin's contention that
they would lose controlled use areas?
MR. REGELIN said, "When it guarantees access to hunting and you
guarantee something in statute, and then I say that only 10 people
can go or 100 people - or the Board of Game does - you're no longer
guaranteeing and the one hundred and first person can sue us, the
way I read it."
Number 2077
REPRESENTATIVE OGAN said if it's managed on a biological basis and
then determined for biological reasons that only 10 people can go
in there, then that's a legitimate restriction. He asked if that
was correct.
MR. REGELIN replied that was a completely separate part of the bill
and the lawyers would need to explain whether that was a
possibility. He thought controlled use areas are used as a tool
for the Board of Game to help spread out pressure and for a whole
variety of reasons to protect the local users and give them more
opportunities in places. He thought those would go away.
CO-CHAIRMAN GREEN asked if the committee had any other questions of
Mr. Regelin. Hearing none, he called on Kevin Saxby to testify.
Number 2126
KEVIN SAXBY, Assistant Attorney General, Natural Resources Section,
Department of Law, said he was assigned to both represent the Board
of Game and in Anchorage does most of the work for the Division of
Forestry, also. He stated, "I want to assure you that we haven't
yet spotted all the legal issues on this bill yet, but there's a
few important ones that the department thought that members might
want to be aware of as they engage in final debate on this. The
first one, probably the most important one we've spotted so far is
this public trust issue that Wayne has just talked about a little
bit. The public trust doctrine is that an established - it's a
term of art in the law and when you buy into that language, you're
buying into - just by the fact of using it, you're buying into
many, many decades of jurisprudence on that issue. There's already
a lot of law on the public trust doctrine. Being the person who
both defends timber sales that are planned by the Department of
Natural Resources (DNR) and who defends the decisions of the Board
of Game, I can tell you that I'm uniquely (indisc.) to explain to
you some of the ways that the public trust doctrine might be
popping up in the future."
Number 2196
MR. SAXBY continued, "One of the ways that we've often seen it in
litigation in the past is when anti-development proponents want to
halt, say a timber sale or some other commodity use of resources,
they'll come in and argue that the wildlife in that particular area
or some other resource on the land in that particular area must,
under our constitution, be managed as a public trust and that the
(indisc.) agency hasn't given sufficient consideration to the
public trust value - the higher values that are implicated if you
have a public trust there. (Indisc.) the Department of Law has
successfully defended against that kind of an argument by arguing
that the public trust doctrine historically applies only in
navigable waters. It doesn't apply on the land. To my knowledge,
this is the first time that the public trust doctrine would be
exclusively applied on the land. So the point is I guess, I think
that you need to be aware that if you decide to use this kind of
language and for the first time take the important step of applying
the public trust doctrine on land, you'll be taking a tool away
from the Department of Law that we've used to defend disposals of
resources in the past and handing a tool to those who would want to
delay government action or prohibit it."
Number 2279
MR. SAXBY stated, "The second issue is, as Wayne pointed out, this
issue about some of the definitions and he pointed out the
biological implications of the maximum sustained yield and
harvestable surplus and highest level of human harvest definitions.
I just want to add to that that because these will be viewed as
implementing the sustained yield clause of Article VIII, Section 4
of the State Constitution, there's a pretty strong chance that
these will eventually be interpreted as what sustained yield
management means for game resources. And that's really an
important step to take and given that the record is that this isn't
what managers have in the past thought of sustained management as,
it's a really narrow definition of sustained yield management. It
will have very broad implications. To the extent that these
definitions are equated with sustained yield management, they could
have very broad implications requiring severe re-thinking of most
game management (indisc.) that appear to have been accepted as
appropriate."
Number 2306
MR. SAXBY further stated, "The third issue I wanted to point out
very quickly for you is the citizen suit provisions. There are two
-- I realize I may be looking at a version of the bill that perhaps
has changed recently, although I think they just tried to get me
the most current draft -- but as I read it, there are two citizens
suit provisions both of which allow suits to be brought against
public officials other than members of the Board of Game to enforce
the other provisions of the bill. There are some problems in that.
The first citizen suit provision on - in my version, it's on page
2, beginning at line 8, authorizes citizens to sue public officials
other than members of the Board of Game for an injunction to compel
compliance with the preceding section. The preceding section says
that the Board of Game and other state agencies, if they close
areas, must open other areas. Well, I'm (indisc.) this provision
authorizes is a suit against someone for action that the Board of
Game has taken - someone who is powerless to change the action of
the Board of Game. That problem could possibly be fixed by
changing language somewhere. But the underlying problem is still
there which is that's it's generally the Board of Game that adopts
means and methods, seasons, bag limits, all the restrictions
applicable to hunting and it's just inappropriate to authorize suit
against other state officials when it's the Board of Game itself
that's (indisc.). Of course, I'm not recommending that you change
the language and allow suit against the Board of Game. I think if
that were the case, you'd have major problems recruiting and
keeping good Board of Game members. The second citizen suit
provision has basically the same problem." In an attempt to keep
his testimony brief, he reiterated that he hadn't identified all
the issues. He offered to answer any questions the committee might
have.
REPRESENTATIVE RAMONA BARNES joined the meeting at 8:55 a.m.
Number 2388
CO-CHAIRMAN GREEN asked if there were any questions of Mr. Saxby.
Number 2392
REPRESENTATIVE DAVIES said, "Under these -- the possibility of
bring suit against public officials -- just suppose that an area
was closed or a method of access to an area was restricted and then
somebody sued to open up an equivalent area and the cognizant
public official could not find an area to open that was equivalent
in size. What would then ensue?"
Number 2419
MR. SAXBY replied, "We'd be faced with a couple of problems. First
of all, there'd be so much - depending on which public official was
sued, let's say it's Wayne as he was talking earlier, one of the
first points that would be made, I guess is that Wayne doesn't have
authority to open and close areas except in cases of biological
emergency, like he earlier testified. So it (indisc.-coughing) to
sue him, although there'd be a lot of confusion because this
statute purports to authorize people to can sue him. The next
issue raised would be if we're dealing with the right person -
someone who does have authority to open an area and we still can't
find an area large enough, it becomes a question of reconciling a
constitutional sustained yield management mandate with this
statutory mandate to open up areas and we'd have to do some real
work in preparing the defense of that case and get the department
and perhaps the board and perhaps others to look at establishing a
record proving that there is no where else in the state that can be
opened up to the use that was closed down for biological....
TAPE 96-73, SIDE B
Number 001
MR. SAXBY continued..."I'm kind of saying this off the top of my
head, but that would be the first place I would advise the decision
makers to look - at reconciling the Constitution with the statute."
Number 015
REPRESENTATIVE DAVIES inquired given the complexities discussed by
Mr. Saxby, is it his opinion that if this bill were to be enacted
into law that it would invite numerous lawsuits and they would be
fairly expensive to defend.
Number 026
MR. SAXBY said he agreed with that. He thought the citizen suit
provisions in this bill are among the strongest that he's ever seen
in statute and as others have mentioned, that is essentially an
invitation to sue.
Number 044
CO-CHAIRMAN WILLIAMS asked Mr. Saxby to explain how this might
affect the timber industry in Southeast or anywhere else for that
matter and how this might affect a challenge on the timber sale.
MR. SAXBY responded that he was currently defending (indisc.)
decision to conduct salvage logging on the Kenai Peninsula. A
number of different organizations have challenged the entire five-
year schedule and also each individual timber sale that was
proposed last year - a total of, he thought 10 or 11 sales to try
to deal to some extent at least with the bark beetle infestation
that's ongoing there. He pointed out, "That the bark beetle
infestation is the worst or one of the worst places and one of the
places where a lot of those sales have been proposed and have
actually been initiated, is in the southern part of the Kenai
Peninsula adjacent to or actually within the Rich Creek critical
habitat area. Of course, this bill deals a lot with what gets to
happen in critical habitat areas." He noted that one of the
arguments made by the environmental organizations and other groups
who want to halt the timber sale or perhaps halt a proposed mine or
some other commodity use is that the Department of Natural
Resources has failed to consider other uses or failed to adequately
consider other uses or failed to adequately allow for other uses.
Their hand in making that argument is greatly strengthened to the
extent that those other uses are recognized as coming within the
rubric of the public trust doctrine. In the past, these groups
have argued that these were public trust type concerns and we've
defeated them by and large by saying the public trust doesn't apply
here; it's never been applied here and it shouldn't be applied here
now and it doesn't (indisc.-coughing) apply here by any law or by
our Constitution. What this would change is that this now
explicitly does apply public trust principles to what many would
view as competing uses to logging or mining or some of the
commodity uses. It strengthens their arguments.
Number 147
REPRESENTATIVE DAVIES referred to page 4, line 15 which is a new
instruction to the Board of Game to adopt regulations that would
guarantee access to and for continued consumptive use and asked Mr.
Saxby to comment on the possibilities for lawsuits under that
language with respect to trophy areas and other areas where for
some reason there exist restrictions at the present time.
MR. SAXBY replied that he agreed with Mr. Regelin that it certainly
raises questions about the continued validity of areas that have
limited access regardless of the way that access is limited. He
pointed out that in many, if not most of the trophy areas, the
restriction was not entered based on a biological justification or
at least not solely a biological justification. Often it was an
allocation decision not solely based on biology but based also on
managing competing types of allocated uses. He said that's also a
reason for a lot of controlled use areas. For example, providing
reasonable opportunity for subsistence as opposed to sport hunting
where the board finds that one or the other of those uses is more
important in that particular area. He agreed that it would
increase the likelihood of lawsuits. He commented there was
another problem with that provision and that is that it's always
been thought that the Board of Game doesn't have authority over
most state land to guarantee that anything happens on that state
land. The Board of Game has authority to control means and methods
of hunting but this language that says the Board of Game shall
adopt regulations to guarantee access to land would throw a wrench
into the works when they're trying to decide whether it's DNR, the
Board of Game or what agency has the authority to decide what
happens in this particular area. He recommended that some thought
be put into some qualifying language in that area.
CO-CHAIRMAN GREEN noted that Steven Daugherty from the Attorney
General's Office was present to testify.
Number 270
STEVEN DAUGHERTY, Assistant Attorney General, Natural Resources
Section, Department of Law, testified that he is the lead attorney
for the Alaska Board of Fisheries and wanted to point out that
there are a few fisheries implications of this bill as well as game
implications. He said, "The Board of Fisheries allocates between
competing user groups and this includes non-consumptive as well as
consumptive sport uses. The Board of Fisheries also closes areas
to fishing and these are not always on a biological emergency
basis. This is sometimes on a habitat basis trying to protect the
habitat for the long term conservation of the stock. The Board of
Fisheries recently adopted regulations allowing the closure of
areas along the Kenai River and they felt these regulations were
critical to the long-term preservation of king salmon in the Kenai
River. This bill would have definite negative implications for
that. A lot of those areas along that river might fall into some
of these areas. They've been purchased - some of this Exxon Valdez
restoration funds have been used to purchase areas and with the
goal of defining these areas as critical habitat just so they can
protect the habitat, protect spawning areas for salmon."
Number 329
MR. DAUGHERTY continued, "The Board of Fisheries has a number of
catch and release trophy type fisheries where you can only keep a
trout if it's above 30 inches or under 12 inches, where the
majority of the trout fall into the 12 to 30 inch range and you
cannot retain them for consumptive use because in these areas the
Board of Fisheries is trying to promote trophy fishing. It's a big
draw for sportsmen to come to Alaska to fish and for Alaska
sportsmen to get out and get a trophy fish. Without the ability to
do this, there will basically be no trophy fish. If the board has
to regulate for consumptive use, they won't be able to regulate to
allow the development of these trophy fish that have to stay in the
system for years in order to reach that size."
Number 369
MR. DAUGHERTY said, "Kevin Saxby has touched on most of the issues
with the public trust doctrine; however, I would note that the
public trust doctrine is being applied to a fund here as well as
just applying it to land and you're implicating all these funds
that come in for our sport fish and this might - I can't say right
now - the public trust doctrine is such a fuzzy issue that's out
there. There's so much case law on it; it can be applied in some
many different ways, but it's possible that if you were saying that
there's a public trust to support fish funds, this could have
negative implications for commercial fisheries. The Board of
Fisheries might be required as a result of some lawsuit that might
arise to restrict commercial fisheries in order to protect that
public trust that is being assigned to the sport fish funds."
Number 400
MR. DAUGHERTY remarked, "I also wanted to touch on one other point.
It's not relating to the Board of Fisheries but to the biological
emergency clause. The Alaska Supreme Court does look very narrowly
on what constitutes an emergency and that language does present
problems." He offered to entertain questions from the committee
regarding the Board of Fisheries.
Number 415
CO-CHAIRMAN GREEN commented that Representative Ogan had indicated
there might be a change on page 2, line 7, which would change
"emergency" to "basis" and asked if that would alleviate the last
problem discussed by Mr. Daugherty?
MR. DAUGHERTY said, "That would help with the emergency thing. I
don't think that particular clause would apply to management of
fisheries; however, I can say that it would prohibit - if you were
doing things on a biological basis that would not allow you to
develop these trophy fish. That would be something that would be
ruled out because that's not something that is biologically
necessary in order to promote maximum sustained yield. It is
something that would actually decrease the pounds of fish that are
harvested when you manage for trophy fish."
Number 451
CO-CHAIRMAN GREEN said it appears that other than the fact that
there may not be lands, river banks or types of lands available to
go along with this, most of the problems that have been raised are
of a legal nature. Inasmuch as the next committee of referral for
this bill was the Judiciary Committee, he thought that would be the
appropriate place to address the legal problems that have been
raised. He asked Mr. Daugherty what would happen in a situation
where River A is a fantastic fishing area but because it's being
over fished, you restrict or maybe even close and you would make
another area and there isn't another area like that. What happens
when you cannot do what is physically do what is required?
MR. DAUGHERTY wasn't sure what the courts would do in that
situation. He added that in the fisheries area, nearly every area
in the state is open to fishing. The Board of Fisheries only
closes areas traditionally when there is a problem in that area and
since most of the waters in the state are open to fishing, there
isn't any other area that can be opened up because everything is
already open that can permissibly be open without threatening the
stocks.
Number 520
REPRESENTATIVE OGAN stated, "On that point, I believe that - you
mentioned that I was considering - I'd like to move an amendment
when it's time to delete that "emergency" word from Section 1 and
then if there was a biological basis for closing an area through
the depletion of stocks or whatever, then they wouldn't be forced
to open another area in the same geographic area if there wasn't
another area to open. It would give them a little bit more of a
management tool. I think the intent of the bill is simply to try
to keep no net loss for hunting areas unless there's a biological
reason to close an area. That's simply the intent. I think it's
a laudable goal. If we soften that language somewhat, it would
give them some more latitude. Whenever you're ready for an
amendment, I'll be moving that amendment."
CO-CHAIRMAN GREEN remarked that an amendment at this point might be
helpful.
Number 574
REPRESENTATIVE OGAN made a motion to amend page 2, line 7, delete
"emergency" and insert "basis". Page 2, line 7 would then read
"does not apply to a temporary closure based upon a biological
basis."
CO-CHAIRMAN GREEN asked if there was discussion or objection.
Number 666
REPRESENTATIVE DAVIES objected for the discussion purposes. In
conjunction with that, he inquired what "temporary" means.
Number 676
REPRESENTATIVE OGAN said "I would interpret temporary as - for
example to get into a situation, let's use the Nelchina Caribou
Herd - it's a rather well known situation. They've gone into a
tier-2 hunt, but if there's a depletion of a particular game or
fish, they can temporarily close an area to let the stocks
replenish for a biological basis. This clause gives them the
ability - they don't necessarily have to reopen an area in another
area immediately if it's a biological reason they're closing it.
If there's another reason - political reason or special interest
pressure group, ecotourism or whatever - that wouldn't be allowable
but if it was simply for a biological basis, they would not have to
reopen another area of equal size under this clause and hopefully,
allow them to replenish the stocks and manage the game and fish or
whatever, and when it's back to a level that can harvested again,
then open it back up."
CO-CHAIRMAN GREEN thought that whatever the biological basis was
for closure would determine how temporary, temporary is.
Number 695
REPRESENTATIVE DAVIES asked how that is different from what the
department is doing right now.
REPRESENTATIVE OGAN said there are some areas that are being closed
by the Board of Game not for biological reasons. For example, the
Paint River area for brown bear hunting. There's been a long
history of three bears in that area for decades. There's an
abundance of bears there and no biological reason to close that
area; it was simply for political reasons and ecotourism reasons.
REPRESENTATIVE DAVIES inquired if ecotourism would not be a valid
reason to take any particular Board of Game action.
REPRESENTATIVE OGAN remarked it is Board of Game, not Board of
Tourism.
REPRESENTATIVE DAVIES said, "Suppose that the residents of an area
came and asked to have the means of access altered for their own
economic reasons, but it turned out it was not a biological reason;
it was an economic reason. Would that be prohibited under this?"
REPRESENTATIVE OGAN commented that he is not an expert on this, he
didn't write this legislation. He commented there had been a lot
of areas closed in Alaska. He thought there was 40 million acres
off limits for tourist reasons and various other reasons and the
hunters are saying enough is enough. If an area is going to be for
any reason other than a biological reason, then another area of
equal size should be opened up. It noted it was originally three
times bigger, but was softened to one for one. He asked if that
area for example, in Paint River was not closed, would it affect
the number of bears and the quality of experience there? He
didn't think it would; there's still a lot of bears in that area.
It hasn't affected it in the past. It's become an incredibly
attractive tourist attraction, which he felt was a good thing.
There has been hunting in there for many years and it hasn't
affected it. He asked is there a biological reason to close that
area down? If the bear population takes a crash, then absolutely
it should be closed down and the tourists will benefit from that.
Number 813
REPRESENTATIVE DAVIES asked if Mr. Regelin could come forward to
answer some additional questions.
CO-CHAIRMAN GREEN invited the assistant attorney general to join
Mr. Regelin.
Number 843
REPRESENTATIVE DAVIES asked Mr. Regelin to explain the effect of
the word "temporary" and how would it differ from the present
management?
MR. REGELIN responded that he considers every action taken by the
Board of Game is temporary in a way, because the next board can
change it. There is nothing that is permanent versus temporary and
it's not defined. The next Board of Game as it changes, can review
the action and it's done on a schedule of every other year. He
didn't think the word "temporary" meant a whole lot.
Number 888
CO-CHAIRMAN GREEN inquired if on that basis, his earlier statement
that "temporary" as it relates to page 2 would be dictated by
whatever the biological concern was.
MR. REGELIN said that was correct. He thought the board could
change it as soon as (indisc.) changed or it could just be a
different philosophy of the board, also.
Number 905
REPRESENTATIVE DAVIES commented that with respect to biological
issues, this would probably have no effect then on the way the
board makes decisions. He asked Mr. Regelin if that was correct.
MR. REGELIN said, "Temporary versus...
REPRESENTATIVE DAVIES interjected, "In other words, if we change
this wording so it reads `This subsection does not apply to a
temporary closure based on a biological basis.'"
MR. REGELIN replied, "I think what it would do is it would remove -
if you make the decision for a biological basis, then you would not
have to open another area equal in size somewhere else. If you
made that closure for other reasons - social, political or whatever
- then you'd have to find another area to open. And again, I guess
the only area that I -- I think we're coming back to McNeil River
and all the time I've worked on the Board of Game, they've closed
an area to hunting that had been opened -- the Board of Game did --
and that was at the McNeil River area. That was not done for
biology and we talked about it at great length with the board. It
had been before them, I think, three consecutive meetings and it
became a real divisive issue and an issue that was very harmful for
hunters, in our opinion, throughout the Nation and the state
because it was being exploited as making it look like hunters were
really up there shooting bears at the falls. It wasn't happening,
but that's the reason the board took that action. In that case,
they'd have to find another area to open. The board did that.
After they took that, they passed the no net loss policy of the
Board of Game and instructed us to review all closed areas in the
state and come back to them to open whichever ones we could. We've
started doing that - that's why the Delta closed area was reopened
at the last board meeting."
Number 1013
CO-CHAIRMAN GREEN commented the committee had an amendment that
should be acted on and most of the questions could be more
appropriately addressed in the Judiciary Committee. He asked if
there was other discussion relating to the proposed amendment.
Number 1030
REPRESENTATIVE NICHOLIA requested the amendment be read again.
Number 1035
REPRESENTATIVE OGAN explained the proposed amendment was on page 2,
line 7, delete "emergency" and insert "basis."
CO-CHAIRMAN GREEN asked if all committee members understood the
amendment and if there was further objection.
REPRESENTATIVE DAVIES withdrew his objection.
CO-CHAIRMAN GREEN announced that Amendment 1 was adopted.
Number 1056
REPRESENTATIVE NICHOLIA said she had a proposed amendment on page
3, line 7, insert "except for controlled use areas" after the word
"game." She explained this addressed the concern she had raised
earlier that this bill would wipe out the use of the controlled use
areas which are used in her district to rebuild the big game
population. She noted there have been moose population problems in
her area and they have used the controlled use area to bring the
population back up.
CO-CHAIRMAN GREEN asked if there was discussion or objection to the
amendment. Hearing none, Amendment 2 was adopted.
CO-CHAIRMAN GREEN inquired if there were other amendments or
discussion.
Number 1119
REPRESENTATIVE NICHOLIA referred to page 2, line 8, and asked if a
person couldn't bring a civil action suit against a state agency or
a public official already?
Number 1139
MR. DAUGHERTY replied that a member of the public already has the
ability to bring an action if a state official is doing something
that is ultra vires; that is something that is not within their
statutory authority. However, he thought this provision was
widening and inviting suit where it may even be a person who does
not have the authority to do anything about the issue in question
or it may be something that is within their authority and someone
would have the ability under this provision to bring a suit. They
probably would not have had the ability or been encouraged to bring
that suit if this provision was not there.
Number 1886
CO-CHAIRMAN GREEN said, "If that were the case and a person were
not directly involved with this particular issue, would that be
considered deleterious? I mean if you were going to sue the
commissioner of health for something that -- there was a closure
and this is actually talking about closure and opening another area
-- would that actually hold then if they weren't in a position --
I mean, that's all this says is that it's that particular narrow
issue. Or does it invite suit to other areas?"
Number 1217
MR. DAUGHERTY said he wasn't certain if there's any situation where
someone involved in the health area would be sued under this. He
was certain there were cases in which state agencies that affect
lands would be sued even though they do not have the direct
authority to manage the game. If there's some type of land action
that closes an area or closes an easement to access, that type of
thing could result in a suit even though that person would have no
authority to do anything about the game issues.
CO-CHAIRMAN GREEN asked, "So would the suit then say that - you,
person A don't have any authority under this bill but you litigated
anyway, does that render it kind of neutral though. What would he
lose and what would he be required to do because he doesn't have
the authority to act under this legislation."
MR. DAUGHERTY responded that anyone who sues under this would
probably claim that they're a public interest litigant.
CO-CHAIRMAN GREEN said he understood that, but he was talking about
the person who doesn't have any authority to change it.
MR. DAUGHERTY replied basically the state would defend that person
and it would just be an expense to the state in defending that
suit. The person who was suing would not bear any responsibility
for attorney fees if they are public interest litigants, so they
have no incentive to not bring suit while the state is going to be
put to great expense in defending these officials even if the judge
does dismiss it as soon as a motion is filed.
CO-CHAIRMAN GREEN commented these issues should be addressed in the
Judiciary Committee and asked if there were other questions.
Number 1310
REPRESENTATIVE DON LONG referred to page 2, lines 11 and 12, and
said it appeared to him that if this legislation is passed, we're
inviting lawsuits, but if the legislation isn't passed, there won't
be the lawsuits.
CO-CHAIRMAN GREEN remarked that issue should be addressed in the
Judiciary Committee. He agreed that it does invite litigation and
while it may be dismissed as frivolous or even carried on, the
person can't respond and couldn't be held accountable for any kind
of damages. It's just that it's an expense that's incurred by the
state.
Number 1358
REPRESENTATIVE RAMONA BARNES made a motion to unanimously move CSSB
262(RES) as amended out of committee with individual
recommendations with accompanying fiscal note.
REPRESENTATIVE DAVIES objected.
CO-CHAIRMAN GREEN asked for a roll call vote. Voting in favor of
the motion were Representatives Barnes, Kott, Ogan, Williams and
Green. Voting against the motion were Representatives Davies, Long
and Nicholia. Co-Chairman Green announced that HCS CSSB 262(RES)
moved from the House Resources Committee with individual
recommendations and accompanying fiscal note.
CO-CHAIRMAN GREEN noted the committee would take a five minute at
ease.
CSSB 199(FIN) - ENVIRONMENTAL & HEALTH/SAFETY AUDITS
CO-CHAIRMAN GREEN called the meeting back to order at 9:35 a.m. He
announced the committee would next hear CSSB 199(FIN) and asked
Senator Loren Leman, Sponsor, for his remarks.
Number 1519
SENATOR LOREN LEMAN, Sponsor, said, "I was hoping that the other
members of the committee would be here to hear this because I think
it's really important that they are. But since you're short on
time and so am I, I'll take this opportunity. This is an
opportunity to do some proactive work to help improve the
responsibility of Alaskan businesses, of Alaska individuals in
meeting their environmental responsibilities and health and safety.
Unfortunately, a lot of people have misrepresented what the bill
does and quite frankly, a lot of people still misunderstand it.
Notwithstanding the headline article in yesterday's Anchorage Daily
News, this bill does not create loopholes for environmental
polluters. In fact, it does just the opposite. Unfortunately,
people in the copy room, who want to establish headlines to get
people drawn to an article will often do that and will totally
misrepresent what the bill does."
SENATOR LEMAN continued, "We have worked with the subcommittee to
try to create some greater comfort for those who believe that
additional sideboards are necessary. I believe the bill that came
from the Senate, as is, provides that adequate protection. It does
not protect bad actors; it doesn't do these things that the U.S.
Attorney for Alaska all of sudden seems to have such great interest
in protecting Alaska even though he claims he came here as a
private citizen. What this is, is a national campaign to discredit
a movement among states to begin taking on their own responsibility
and dealing with these issues in a very positive way.
Unfortunately, there's a lot of effort and even in this
Administration, while we began in the very beginning of the
session, in a very constructive, positive way, got unanimous
endorsement for the concept, there's been nothing but foot dragging
a long the way from these people. I will say that in the time that
it's taken us to move from the Senate to the House, I've learned
that two more states have adopted legislation similar to this;
bringing that total up to 20. I believe that we'll see several
more states by the time this legislative session has concluded who
are added to that list. Alaska should be on that list and I would
support that."
Number 1680
SENATOR LEMAN stated, "In response to the subcommittee's work, one
of the major changes is deleting the health and safety audits from
the bill. I believe that's a step backwards because I believe that
workers are also entitled to have safe work places and we ought to
be taking a proactive approach for businesses to identify the
health and safety aspects in the workplace also. But if this
committee believes that we shouldn't be providing that benefit so
businesses will practically be seeking that through audits, then I
will accede to the wishes of the committee. I just would urge you,
however, to not diminish the benefits from this because we know
there are many industries in Alaska that are unsafe and we need to
be doing what we can to protect workers." He invited questions
from the committee.
Number 1743
CO-CHAIRMAN GREEN noted the committee was on a very short time
schedule and would be recessing in a few minutes.
CO-CHAIRMAN GREEN stated, "One of the questions that has been
pretty prevalent - that I've heard lots of hall talk about is the
concern that has permeated most of the conversation is the immunity
portion of this. That that does seem like `Boy, anybody feels like
they're in jeopardy of being found out, they'll rush in and claim
they found this leak and now want immunity while it takes time to
fix it.' Would you care to just kind of gloss over -- I know
there's a lot more detail to it than that and it is covered in the
bill, but just for the record would you kind of give us your view
on that."
Number 1814
SENATOR LEMAN said, "Let me respond to it - there's at least two
ways the bill addresses it. One is that this - there is no
protection for anybody who knowingly violates law. This bill
doesn't provide any immunity and the privilege doesn't apply to
that. The second element is that there is no privilege for any
substantial environmental damage offsite. So if you're off your
own property and cause environmental damage, it doesn't apply.
That's all that these writers and these naysayers would have to do
is read the bill. It doesn't apply. I don't know how much more I
need to say than that. The bill addresses that. There is
protection against the bad actors. That is not the intent of the
bill and that is not what the bill does."
CO-CHAIRMAN GREEN asked if there were other questions of the
sponsor.
Number 1906
J. DAVENPORT testified offnet in support of CSSB 199(FIN).
CO-CHAIRMAN GREEN asked if he was testifying for himself or on
behalf of some organization.
MR. DAVENPORT said, "I do represent clients that are interested in
it, but primarily I am testifying on behalf of myself as a person
that's been active in audit policy and audit privilege bills. I do
represent MAPCO in a number of cases. I don't represent anyone
else in this particular matter."
Number 1957
MR. DAVENPORT continued, "I do support the bill. I've been
involved both with the ABA (ph) focus group in Washington that work
with the Environmental Protection Agency (EPA) on developing their
policy which does focus more upon the penalty side. You had
indicated there was a concern about the immunity portion. That is
the area that was dealt with by the EPA in their policy that was
promulgated December 22. I worked with the Oklahoma Department of
Environmental Quality in developing their environment policy which
also worked on the penalty side. I've been involved in auditing
and overseeing audits. Essentially, when an audit is performed, it
is a very expensive procedure. We need to bring in knowledgeable
people to review the number of regulations that are involved.
Typically, with the federal regulations, there's over 13,000 pages
and there's a sense in the regulating community that it is
virtually impossible to stay in compliance."
Number 2054
MR. DAVENPORT stated, "When an audit is performed, typically the
findings include primarily reporting violations where records were
not kept as required by specific regulations or reports are not
filed as required by specific regulations. These are not findings
of pollution. They're not problems that involve environmental
impact but they are difficult to keep up with and it is very
helpful in maintaining a high level of compliance to have outside
auditors come and review them. The difficulty with that, of course
is that reporting violations must in fact be reported. I've had
occasion with other clients who have reported violations who have
then been penalized for seeking out problems and trying to correct
them in bringing them to the state's attention. This is the area
which is very vexing to managers and an area that this bill needs
to address. Those who actually audit are not the companies who are
trying or regulated entities that trying to avoid regulations.
They are the ones who are seeking to stay in a high level of
compliance. What they are seeking with this bill is to avoid being
punished for acting proactively to stay in a high level of
compliance. We think the bill does that."
MR. DAVENPORT further stated, "It encourages companies. It only
provides penalty relief for those that do not have knowing
violations and do actively undertake efforts to achieve compliance.
And that is probably the strongest and most important from a policy
standpoint - from a state standpoint - that aspect of the bill as
it encourages early and active efforts to comply. Secondly, those
who find problems must cooperate with the appropriate agency in
investigating and correcting the claim. This gets the state
involved and provides for a cooperative partnership in resolving
the issues. Whether it's an audit privilege, the audit privilege
while it is provided in the bill, it certainly cannot provide a
shield for a company to avoid reporting those things that are
otherwise reportable. No responsible person would recommend that
any company audit without being prepared before they know what they
(indisc.) to actively deal with any findings that they come up
with. This bill provides the carrot to encourage companies to seek
out their problems and to correct them and does not inhibit the
state in any way from using the stick as it needs to, to punish
those companies that are not willing to take those proactive
steps."
Number 2330
MR. DAVENPORT commented, "We do feel this bill provides a balance
in encouraging cooperation with the state. It encourages in a time
of short budget resources, the encouragement for companies and
regulated entities to go out and seek their problems. When I say
regulated entities - two types of companies or entities that are
strongly affected by this are governmental (indisc.) and
municipalities, both of which have extensive environmental health
and safety requirements that are imposed upon them. In fact, under
the Oklahoma policy, the first two entities that took advantage of
the voluntary disclosure policy were two air force bases in the
state, both of which are very important to the economy." He
offered to answer questions for the committee.
Number 2402
CO-CHAIRMAN GREEN thanked Mr. Davenport for his testimony. He
said,"You are in a state that has enacted this and I know your
border state has been very, very much on the forefront of this kind
of self-audit. Can you tell us, do you have a problem between....
TAPE 96-74, SIDE A
Number 001
MR. DAVENPORT..."environmental law section of the Oklahoma Bar
Section with the representatives of the Oklahoma DEQ, and the state
is very supportive of this type of program. I just talked to the
general counsel and his only regret is that more companies have not
availed themselves of it. They're in favor of it for a couple of
reasons. They want the companies to go out and find the problem.
We don't have extra money here in Oklahoma to fund the inspectors
to go out and find problems. They want to encourage companies to
come in and -- seek out their problems and come in and work with
the state in solving them. Secondly, frankly it frees the agency
up of some complaints they occasionally get from - even from the
legislative side where a large employer may be enforced again and
they contact their legislator to ask why they're being picked at.
The agency has, with this policy, provided every opportunity to the
regulated community to voluntarily come into compliance and there's
no sympathy at that point for companies that don't avail themselves
of that. They're very supportive of this concept. In Texas, the
bill was put together by working together between the industry and
Texas Natural Resources Conservation Commission (TNRCC). At the
Senate committee, Mr. John Riley of TNRCC testified that in the
first six months, over 170 reports had been made to the agency of
intended audit. I thought that was simply remarkable and a sign of
the success of this group."
Number 213
REPRESENTATIVE DAVIES inquired if Mr. Davenport had done some
practice in Alaska.
MR. DAVENPORT responded that he had.
REPRESENTATIVE DAVIES asked if Mr. Davenport could cite one or more
instances where a company had been penalized for engaging in an
environmental self-audit?
MR. DAVENPORT replied, "No, I cannot. I can from other states for
those companies that do operate in more than one state, they're
concerned wherever they do business."
Number 256
REPRESENTATIVE OGAN remarked, "You stated that 170 violations were
found in these audits that -- what would the same amount of
violations would be found in that same time period before the law
was enacted."
MR. DAVENPORT responded, "The testimony was not concerning the
number of violations but concerning the number of companies that
notified the TNRCC that they intended to undertake audits and would
bring them in when they were completed."
Number 306
REPRESENTATIVE NICHOLIA said she was confused when Mr. Davenport
introduced himself and asked if he represented MAPCO or himself?
CO-CHAIRMAN GREEN remarked that Mr. Davenport had said he was
representing himself but that he had done work for MAPCO.
CO-CHAIRMAN GREEN announced the committee would stand in recess
until 5:00 p.m.
Number 338
CO-CHAIRMAN GREEN reconvened the House Resources Committee at 5:08
p.m. Members present were Representatives Kott, Davies, Long,
Williams and Green. A quorum was present to conduct business.
He said that discussion would resume on CSSB 199(FIN). He noted
there was a new Committee Substitute, Version W.
CO-CHAIRMAN WILLIAMS made a motion to adopt Committee Substitute,
Version W, 9-LS 1312\Lauterbach dated 5/1/96 as the working
document.
CO-CHAIRMAN GREEN asked if there was any objection.
REPRESENTATIVE DAVIES objected and asked if someone would explain
the changes.
Number 435
REPRESENTATIVE PETE KOTT said, "Essentially, as I understand it,
the difference between Versions U and W is that in Draft U during
the exercise in the subcommittee, we removed criminal intent from
the immunity section and when it was conveyed to the drafter, they
removed it throughout the entire bill, in the privilege section as
well. That's the only difference. We went back in and put it back
in to the privilege section of the bill. That's the difference
between the two. I'll go through both drafts and do a comparison,
if you like."
CO-CHAIRMAN GREEN asked Representative Davies if he removed his
objection.
REPRESENTATIVE DAVIES withdrew his objection.
CO-CHAIRMAN GREEN said, "Without objection then, we are on Version
W."
REPRESENTATIVE KOTT remarked, "Mr. Chairman, what I'm going to do
is I have the original CS that we had in the committee that we had
before us when this was sent to subcommittee. It was Version O.
It's my understanding as I was not here for that afternoon session,
that Version O was not adopted by the subcommittee - by the main
committee - what we did in subcommittee was to adopt Version O as
the working document. So, that is the document I will reference as
far as the changes go as it is laid out in the new Version W."
CO-CHAIRMAN GREEN inquired if there was any objection from the
committee.
CO-CHAIRMAN GREEN noted for the record that Representatives
Austerman, Ogan and Barnes were in attendance.
REPRESENTATIVE KOTT said, "Again, I appreciate the indulgence of
the subcommittee members who sat through this laborious task - we
had four meetings. We did make some headway. I hope we have
improved the bill. I'll start off by referring you to Version O
and in Version O on page 8, line 9, the phrase "on or after the
effective date of this Act....
REPRESENTATIVE BARNES interjected that she did not have Version O.
CO-CHAIRMAN GREEN said, "We just passed out the W, O was in your
packet before. It's a prior version. And what Representative Kott
is doing is comparing what the committee did with what we got from
the Senate."
REPRESENTATIVE AUSTERMAN said, "So, O is what we got from the
Senate; W is what we just....
REPRESENTATIVE DAVIES explained that Version W was just adopted.
REPRESENTATIVE KOTT commented, "Actually, Mr. Chairman, I'm not so
sure even that is correct. I think what we got was a different
version from the Senate. We had the CS before us when we sent this
to a subcommittee. I think Version O was not adopted by the
committee. That was the document we had before us when we went to
subcommittee and we adopted Version O as the working document.
Again, I wasn't here that afternoon so I'm kind of....
CO-CHAIRMAN GREEN said, "I believe you're right, Representative
Kott. We had Version M - you're right."
Number 728
REPRESENTATIVE KOTT explained, "We had another amendment - number
2 which was superseded by number 3, so I won't cover 2. Page 8,
line 9, we just deleted the language, `on or after the effective
date of the Act' so there's no inclusion insertion in the new
draft. The next amendment which is an effective amendment -
operative amendment - would be number 3. Page 8, line 16, we
deleted starting from the words `in order to be considered' to `or
property' at the end. Starting on line 16, `in order to be
considered' through the end of line 18 - that was additionally
deleted. There is no inclusion in the new version."
Number 784
CO-CHAIRMAN GREEN questioned, "Then the bill drafter has...."
REPRESENTATIVE KOTT said, "Yeah, everything else is - actually,
we're okay there. We just deleted part of that sub-parenthesis
(2). So parenthesis (2) on line 8 now reads, `Not attempting to
bring the facility, operation or property into compliance so as to
constitute a pattern of disregard of environmental or health and
safety laws.'"
REPRESENTATIVE DAVIES asked him to repeat that.
REPRESENTATIVE KOTT responded, "I just repeated what I mentioned
earlier. On line 16.... starting with the words, `in order' on
page 8, line 16, working under Version O - we haven't done anything
yet with Version W - these are the terms that we had excluded. You
won't find them in the new version W. We've taken these words out
of the bill. There's nothing to refer to yet in Version W. The
next amendment number 4 was an insertion and that is in Section 1
of the bill, Version W, the Findings and Intent is all new
language. That was brought to us by the council (indisc.) and the
Alaska Oil and Gas Association (AOGA) folks. All of new Section 1
is new."
CO-CHAIRMAN GREEN asked, "In that new Section 1, in essence that is
what - just...
REPRESENTATIVE KOTT interjected, "It's just intent language. The
sponsor objected to the intent language going in primarily because
the sponsor never puts intent language in bills. It makes it a
little more clearer as to what direction we're really heading here.
No one else objected, as I recall - none of the departments or Law
and they were active participants at the table - we just had a
round table discussion that involved the Department of Law, the
Department of Environmental Conservation (DEC), Department of
Labor, Sara Hannan was there and members of the committee as well
as a member from the (indisc.) Council and a member from AOGA,
representing them."
Number 981
REPRESENTATIVE KOTT went to on explain, "The next amendment is on
page 5, line 22, and this is inclusion - excuse me, on Version W,
page 6, lines 19-21, Section (c) is new and reads, `An audit report
is not privileged and is admissible as evidence and subject to
discovery if the report was commenced after the owner or operator
knew of an impending inspection or investigation by a regulatory
agency.'"
Number 1035
REPRESENTATIVE KOTT said, "Amendment 6 on page - going back to
Version O - we're making a deletion here on page 5, lines 25-26.
Basically, what we have done in this particular area was to delete
`criminal penalty' from that section and essentially it is a
conforming amendment throughout the section dealing with voluntary
disclosures and immunity. This is what I was referring to
earlier."
REPRESENTATIVE BARNES inquired if it was lines 25 and 26 being
discussed.
REPRESENTATIVE KOTT said, "It's the term or the concept of
`criminal penalty.' That term was removed so now we're applying
this only to administrative or civil. And that has been changed
throughout this particular section of the bill."
CO-CHAIRMAN GREEN asked, "So there are several places under
voluntary disclosure where `criminal penalty' has been removed from
the O Version?"
REPRESENTATIVE KOTT confirmed that. Just as a reference to show
you where that would have fell into place, on page 7, line 26,
that's one area that reflects this - we've taken out the criminal.
This just says, `administrative or civil penalty may be imposed...'
we've taken out the criminal. We felt that should be removed from
that particular area. We didn't want to reward bad actors."
CO-CHAIRMAN GREEN asked if Representative Kott was referring to
page 6, line 26 on the O Version.
REPRESENTATIVE KOTT responded affirmatively and added, "Again,
that's conforming language. The next amendment that was adopted on
page 7, line 31 of the O Version - we've deleted, `an extension is
approved by the governmental entity with regulatory authority over
the regulated facility, operation or property based on reasonable
grounds'".
REPRESENTATIVE DAVIES questioned what lines Representative Kott was
referring to.
REPRESENTATIVE KOTT replied, "That's right at the bottom - 31.
Last two words on page 7, line 31, and then the subsequent two
lines on page 8. That is what was in fact deleted."
CO-CHAIRMAN GREEN clarified that Representative Kott was referred
to Version O, the last two words on page 7 and the first two lines
on page 8....
REPRESENTATIVE KOTT said, "...were deleted. They were replaced
with - turn to the new Version W, page 8, lines 30 and 31 are where
the changes start and commences on page 9, line 1. So we replaced
that earlier language with `except that the audit period may be
extended for up to 60 days if the facility gives notice of the
extension and its duration to the appropriate regulatory agency by
certified mail before the original time period expires.' That's
what we've done there - we've offered an opportunity for an
extension, basically."
Number 1254
REPRESENTATIVE KOTT stated, "The next amendment on page 10 of the
old bill - we deleted lines 1-8 in their entirety."
CO-CHAIRMAN GREEN noted that takes out all of parenthesis (2).
REPRESENTATIVE KOTT confirmed that. He added, "Subsection 2
parenthesis (a) and (b), that was replaced in the new version, page
10, (2), starting on line 26 where it defines environmental audit."
CO-CHAIRMAN GREEN inquired if that went over to page 11, line 2.
REPRESENTATIVE KOTT said, "Actually line 4."
REPRESENTATIVE KOTT commented, "The last substantial amendment and
you'll have to take my word for this - it was in the O Version, we
deleted all references to occupational safety and health. I can go
through the O Version based on the amendment that was turned in to
us by the department - it was a two page -- primarily, it just
deletes the words `occupational health and safety' from the bill
with the exception of the title - as I mentioned, we did not want
to cause alarm with a title change so we had the drafters, in the
definition section of the audit, include the words `health and
safety' which retains the title in legitimate terms."
CO-CHAIRMAN GREEN commented, "We can see that the title hasn't
changed, but you said there is a reference within the W Version,
near the end someplace. He inquired if it was on page 11, line 25,
where it talks about self-audits and environmental audit."
REPRESENTATIVE KOTT stated, "On page 11, line 19 of the new bill --
see that on line 22, we've included the words `occupational health
and safety' - that's what was added to ensure that the title would
conform to the bill and thus would not need a title change.
Otherwise, if we did not do that, the safety and audit aspect of it
would be removed from the bill throughout and it would require a
title change because the title does not refer to occupational
safety and health in any respect once it's removed. We checked
with the drafters on this."
Number 1427
REPRESENTATIVE DAVIES commented, "I appreciate what they've done
there but I don't think that that's required as long as the title
covers what's in the bill, that's sufficient."
REPRESENTATIVE KOTT said, "It was basically a concurrence with the
drafters in ensuring that a title change would not be required....
Mr. Chairman, that's basically the areas that were identified as
being changed. I think we came a long ways - probably still some
concern within the - perhaps the Department of Law. I hope we have
quelled, for the most part, the Department of Labor's concern. I
think we've taken them out of play. I think we've taken the
Department of Health & Social Services out of play. I'm not sure
if we've taken DEC out of play or not. And obviously, I think the
Department of Law still has some problems. We did at the
conclusion of our work session before we agreed to move the bill
back before the parent committee here, we did agree to allow the
Department of Law to bring forth an amendment that would conform to
the Reichhold decision which is a federal case that has been
resolved. Whether or not the committee wants (indisc.- tape
garbled) amendment remains to be seen, but I assured her that we
would allow for that to come forth because it was pretty complex at
the time rather than to hold this up another day or so."
CO-CHAIRMAN GREEN inquired what the Reichhold decision was.
REPRESENTATIVE KOTT said it was basically an environmental audit
case, he believed.
Number 1546
CO-CHAIRMAN GREEN commented, "So, as I understand this fairly
significant redraft then is to try and keep this from having a
problem legally as well as re-directing it under the Department of
Labor and so this version now is, in your opinion, has cleaned up
all that."
Number 1571
REPRESENTATIVE KOTT said, "Mr. Chairman, we've come a long ways to
remedy some of the problematic areas. But we think it's still a
test tube for litigation based on just some general terms, I would
suspect. Of course, any thing is subject to litigation but when
you have some very liberal terms and speak in generalities, it
leaves some openness as to where you're really going and where
you've really come from, I think that potential still could be
there, especially in this kind of an area - environmental cleanups
and waste disposals - we've seen a lot of that in the past and I
suspect it will continue in the future. But we have, I think, made
some headway. I know there's still concerns out there."
Number 1606
CO-CHAIRMAN GREEN inquired, "Will we get some discussion then of
the fact that we have changed this significantly from what has been
indicated to us by the sponsor to be a similar type bill that is
used in now up to 20 states - will that be discussed by...."
REPRESENTATIVE KOTT responded, "I think, Mr. Chairman, that that's
a good point. During the subcommittee hearings and I think maybe
before us, it was brought out that 18 states had passed something
and two more had it on the governor's desk. It was brought out in
subcommittee that 24 states have rejected it - I don't know where
that came from - if that's an outright rejection or if it's a bill
still sitting in somebody's committee. If that's what we're
considering a rejection, I would submit that's probably going a
little bit to the extreme but if someone as far as a governor has
vetoed a bill, then I would say it was rejected or if there was a
vote in either body and it failed to pass, that would, I believe
construe to be rejected. As far as the other 20 states and my
understanding - and again, it's a very narrow understanding that I
have - many of the states that have passed this kind of legislation
includes either privileges or immunities or a combination thereof -
a little mixed bag or they might include both. We took out the
OSHA portion of it because in the testimony that we heard, Texas
was the only state that included OSHA and their plan is a little
bit different than our plan - it was conveyed to us that we have
what's called a state plan, where the feds convey in excess of $2
million to us and we essentially implement the OSHA regulations
under the guidance, if you will, of the federal government. And
several discussions surrounding that issue - the department
basically confesses that they're already doing what the bill was
required to do. They are already providing consultation.
Privileges and immunities are already there for those that are
involved in investigations and if my understanding is correct, the
enforcement division does not have access to those records - at
least, if I get this right - so that was the main reason why we
took the Department of Labor out of play."
Number 1747
REPRESENTATIVE AUSTERMAN said, "Just to reinforce what
Representative Kott's saying (indisc.-tape garbled) health and
safety issues and OSHA, Texas was the only state that had those set
of criteria in here - that's what we were told and because the
Department of Labor is basically the only department that was there
that said they actually go out and do consultations with these
different companies to help them get through some of these audits
and make sure they're doing everything correctly. The DEC didn't
have it and the rest of them didn't. That was kind of what sold me
on removing OSHA and health and safety (indisc.). I think one of
the things we'll probably hear from the Department of Law is on the
privilege section, starting on page 2, in Section 2, line 20 -
whether privileges should be in this bill or whether the immunity
should just be in here and I think it was after either the second
or third meeting of the Department of Law saying privileges are not
a good thing to have in here that we finally said if you don't have
anything in writing, let's move onto something different because we
didn't have anything. All they were doing was talking about it.
Maybe tonight they'll have some amendments in writing that will
address some of their concerns about the privilege being too broad.
We discussed the different type of privileges that the Department
of Law had dealt with - confidentiality like an attorney which is
fairly narrow, while this is a little bit more broad than they
wanted to see. Maybe this other court case that they were talking
about might cover some of those things. Those are really the two
biggest issues."
Number 1827
CO-CHAIRMAN GREEN noted that Mr. Davenport from Oklahoma had
indicated in his testimony that the self-audit was in place in
Oklahoma and it was working. He questioned if Oklahoma had the
privileges portion.
REPRESENTATIVE AUSTERMAN said he assumed they have the privilege
aspects and the immunity aspects of it but not the health and
safety OSHA because as he understood it, Texas was the only state
that has that. Again, it was a different type of program.
CO-CHAIRMAN WILLIAMS asked if the sponsor had been at the meetings.
Number 1876
REPRESENTATIVE AUSTERMAN said a representative of the sponsor was
there. He noted the sponsor does not agree with all the changes
that were made in the subcommittee meetings. Neither do the
Departments of Environmental Conservation and Law, nor did he, but
there had to be some give and take to come up with the best
possible bill.
CO-CHAIRMAN GREEN announced that John Riley, Director, Litigation
Support, Texas Natural Resources Conservation Commission would be
testifying next via teleconference.
CO-CHAIRMAN GREEN asked Mr. Riley to inform the committee how the
self-audit was working in Texas.
Number 1918
JOHN RILEY, Director, Litigation Support, Texas Natural Resources
Conservation Commission, said he hadn't seen the latest draft of
the legislation before the committee but Texas had passed similar
legislation which became effective May 23, 1995. The Texas law
does incorporate and include health and safety laws, so his agency
is not specifically involved with the administration of the
statute. From listening to the discussion in the committee
meeting, he gathered that Alaska administers the federal OSHA
standard. He noted the health and safety aspects of Texas' law
would not extend to the federal enforcement (indisc.). He said
since March 23, 1995, they've had 165 notices of intent to audit
from various and diverse groups of regulated entities. Texas law
requires that in order to avail oneself of the immunity provision,
there must be a notice of intent to audit. He thought that was
evidence of some of the level of interest in the regulated
community for this type of legislation. Anyone seeking the
immunity is required to report any violations detected in their
audit process. It's completely voluntary - giving notice and then
later if a company later decides they either didn't find anything
or didn't care to report what they did find, but if you go to the
next step there are several requirements for immunity under the
Texas statute. He believed that so far what they've found is a
pretty beneficial effect in terms of enhancing the enforcement
functions of his agency. They have a huge regulated community and
as with most state agencies, they have limited resources to
actually do on-site inspections and respond to complaints. They've
had about 30 disclosures under the immunity provision since the
inception of the law. The disclosures have been somewhat
interesting ranging from relatively small companies of about 50
employees to large multinational companies. They have found that
many of these violations that are revealed in the (indisc.) process
are types of violations that the agency would not ordinary have
discovered in a routine inspection or a response to a complaint.
Texas law requires that after discovery, the company must disclose
whatever information they generate and cooperate with the agency
toward the remediation. Texas law does not require them to give up
their (indisc.) authority. He said, "And all you're really talking
about what we talk in the terms of immunity, is the penalty
mitigation or penalty elimination might be more appropriate. And
that's the trade, I supposed. We can still re-contemplate in
longer term, technical fixes or remedial projects that we will
actually enter into like traditional enforcement order (indisc.).
But for the ones that we think that fixes are in place or can
quickly be put in place or not too long before they're in place, we
probably would not pursue it any further from an enforcement point
of view." He offered to answer questions from committee members.
Number 2131
REPRESENTATIVE AUSTERMAN asked Mr. Riley to repeat how many self-
audits had been turned in since the law was enacted.
MR. RILEY replied, "We've had - (indisc.) measures the numbers of
audits being conducted because our bill gives opportunity for
privilege so an audit can be conducted and the agency would not
necessarily know about them. But in terms of the immunity section,
we received notice of intent to audit from 165 companies. Of that
165, approximately 30 have come in with disclosure, seeking the
immunity for the violation."
REPRESENTATIVE AUSTERMAN commented that it hasn't turned out to be
something where everybody just files an intent to audit to cover
themselves.
MR. RILEY said not as far as he could tell. He thought there had
been some pretty positive results in terms of the people who are
coming in and exposing their violations and working toward
solutions that ordinarily they may not reach in their traditional
enforcement process.
Number 2180
REPRESENTATIVE AUSTERMAN asked if Mr. Riley had been sent a copy of
the original draft of SB 199.
MR. RILEY replied yes, he did have a copy.
REPRESENTATIVE AUSTERMAN asked how similar the privilege statutes
as compared to those passed by the state of Texas.
MR. RILEY recalled they were very similar in the original draft.
REPRESENTATIVE AUSTERMAN inquired if it had created a problem for
the state of Texas.
MR. RILEY responded not so far. He added there has been some
confusion in implementation with some of their regional offices as
to what information they may receive and under what circumstances
they may receive it. But that has been very limited. There's been
a couple of occasions where a company was not asserting the
privilege and the confusion at the regional level resulted in the
agency refusing to discuss certain aspects. That has been cleared
up.
Number 2224
REPRESENTATIVE AUSTERMAN noted the law had been on the books in
Texas about 11 months and wondered if there were things they were
contemplating changing in statute to make it a better concept.
MR. RILEY said there were a couple of things in their law that
could use some clarification. They have provisions for overcoming
the privilege and there's two sections in the Texas law; one
relating to civil or administrative proceedings which provides for
an in camera review and the other section in criminal context also
provides for in camera reviews. He noted there had been some
confusion but he didn't believe it was ambiguous or as unclear as
some people think it is. He thought that some standards could be
inserted that would make it clear on what basis the tribunal may
make a decision on whether the information can be disclosed and
used in the proceeding. He believed the law was pretty tight
except for that area.
Number 2275
REPRESENTATIVE AUSTERMAN thanked Mr. Riley for his comments and
input.
CO-CHAIRMAN GREEN asked if committee members had any questions of
Mr. Riley. He said, "So, I guess the overall response, with a
slight difference since we have federal OSHA acting here, is that
so far it seems to working in Texas."
MR. RILEY replied he believes it's working very well. He added
that Texas has taken the position under their law that both the
notice of intent to audit as well as the disclosures made in
initial form, are public.
Number 2317
CO-CHAIRMAN GREEN noted that Mr. Riley had indicated there was a
way to overcome the immunity portion.
MR. RILEY said there are several requirements through their
immunity section. One is the threshold requirement providing
notice before the audit is conducted of the intent to conduct an
audit and then there are seven other criteria that he believed were
reflected in SB 199. He said essentially, it amounts to the
disclosure is made promptly, there's cooperation with the agency in
investigation of the aspect of the violations that are disclosed,
that remedial measures are taken within a reasonable time. There
is no immunity for violations that cause harm to humans on-site or
harm to people, the environment off-site. He thought the most
important aspect is the solution within a reasonable time and that
applies to both the privilege and immunity. So both the privilege
and immunity can be overcome if there isn't swift, remedial action.
Number 2390
CO-CHAIRMAN GREEN inquired, "Let's say Company A comes to Texas and
says `We intend to do the audit, we've found this issue' and you go
through this litany of conditions and then you can't reach
agreement as to what needs to be done or in what time it needs to
be done. Now the company has exposed themselves, but it sounds
like you have this either time to do or what effect would happen --
where does that place the company that has come forward?"
MR. RILEY responded that essentially the company has taken that
risk of coming forward and the benefit they'll retain if an
agreement can't be reached on remedial measures, is that they will
still retain the penalty. He noted there were some questions as to
whether they would consider to have been cooperative in the
investigation, but he's assuming in Co-Chairman Green's question
that this is a good faith disagreement as to what's necessary and
the state would still retain their ability to seek the injunctive
provision so they could proceed with their normal enforcement
action. They could go ahead and bring an enforcement action
against the company, go to a hearing, each party would put on their
evidence and eventually reach a decision, hopefully.
Number 2448
CO-CHAIRMAN GREEN asked if there had been any problems working this
out with the various agencies within the state.
MR. RILEY said he had spoken with other agencies, but he could only
speak to the experiences within his agency. He added he is not
aware of any problems with any other agencies.
TAPE 96-74, SIDE B
Number 001
CO-CHAIRMAN GREEN thanked Mr. Riley for his testimony and called
Sara Hannan to testify.
Number 027
SARA HANNAN, Representative, Alaska Environmental Lobby, Inc.,
applauded the subcommittee for their work. She said, "I've spent
a lot of hours reading and dialoguing about this bill for several
months, both on the other side and while this bill has been on the
House side. As much as I would say that the bill that you see
today in Version W is substantially different than the original
version and substantially different and improved over the version
you first got before you, I don't have anything good to say about
this bill because I believe it creates a fundamental shift in
judicial procedures and policy that is major. You've heard that
and my statistic that I threw out in the subcommittee was
referenced when the subcommittee chairperson gave their report,
that many states have sponsored this bill into law and many states
have rejected it. My study comes from a community study and they
had done a Price Waterhouse audits and coverage of this legislation
across the country as referenced and I wasn't able to quickly flip
through my footnotes to find - from their study that this
(indisc.), but that 1995, 24 states rejected this legislation. So
across the country it's being talked about at legislatures and it's
being constructed and in every state, local laws are different."
Number 097
MS. HANNAN continued, "Texas may be the state with the most closely
paralleling legislation to what we've proposed or what's being
proposed here, but there's some fundamental differences. They're
not a state OSHA state, primacy.....that's not a current issue, but
there are other fundamental differences. First, I want to talk
about privilege and what that means because when the attorneys talk
about it, it's fairly complex and it's something they study clearly
and there's something - there's 250 years of judicial precedent
about, but the clearest example that I recall through four months
of listening to this debate, came in the other body when one of the
attorneys talking about it said, `Here's what privilege means.
Privilege is when you go to your attorney and you say I shot my
husband and here's the handgun I used and I was pissed off and
drunk and there you go' and your attorney extends to you the
privilege - the attorney-client privilege that we hear mentioned on
every cop show and they turn to the police and say here's the gun
and the police say where did you get it and the answer is I invoke
my attorney-client privilege and I can't tell you anymore and I
don't have to tell you any more. Now the police have to prove that
that's my gun and that I killed my husband. But what I said to my
attorney is privileged. The evidence that the attorney has is not
privileged. It is one example of when the judicial privilege is
extended, it's fairly specific and it's fairly limited."
MS. HANNAN further stated, " One of the problems with this bill all
along has been that the privilege is very broad and I believe the
Department of Law will probably talk to you in more detail about
why it's broad. When we look at the Texas bill, it's much broader
than the Texas law because there is a way that the Texas law, the
privilege can be overcome if the judicial tribunal says that they
haven't in a swift and reasonable fashion, remedied the solution.
Our law still does not have a way to overcome the privilege unless
it's criminal."
Number 168
MS. HANNAN explained, "But in a civil proceeding, as in the case of
most white collar crime, the evidence that's important to prove the
case whether it's civil damage or civil neglect, is the paper trail
- what did you know, when did you know it, who knew it, who's
responsible for knowing it, who had the authority to remedy it if
they knew it. Who's the guy that the buck stops at? And many of
the problems with this bill apply in audit and privileges - who
conducts the audit, how are they conducted, who's notified and who
has the authority to remedy the situation if they know about it,
and is the audit credible. If you were being audited by the IRS,
the guy who comes in and audits you is a CPA. And when you say
you're a CPA, that means very specific things all across the U.S.
There's certain education and certain licensure. When you say I'm
doing an environmental self-audit of my corporation that's
regulated by the state of Alaska, we don't have any other terms
defined in statute except for what's in this bill and they're still
fairly broad about what the means. Who can come in and do it, what
credentials do they have to have, what do they have to know about
the regulations, who are they responsible to, did I get hired by
the owner, did I get hired by the operator, did I get hired by the
landowner, did I get hired by the incinerator operator who may not
own the land who may be on a public leasehold and may decide that
he goes bankrupt during the middle of his audit and the state who
is the leaseholder never knows what that sludge was when we come to
clean it up. And we may never know because privilege was involved.
Maybe there was no crime committed but maybe there's something we
need to know because we have to remedy the situation. So where
privilege is invoked, how it's applied, and who holds the bag are
important things to define when you're establishing this new very
broad privilege."
Number 252
MS. HANNAN stated, "When you're giving immunity and we think that
privilege is something very specific and it's probably where the
greatest heartburn about this comes from, because what paper trail
do you get access to and who gets access to it and when is very
important. Now immunity is a separate section and that is if I
want to cooperate with you and I want to tell you, the IRS, that
I've gone through my books and I've cooperated and we've gotten
along and you have evidence and information about me that's pretty
important to our company's doing business. Am I liable for what
you find? Now Joe Hazelwood got immunity for doing something that
we know when we put those federal laws in place that provided Joe
Hazelwood immunity from reporting, it was because we wanted to give
people in a certain environmental regulatory position - if they
spilled oil - an incentive to come forward, come clean as soon as
they knew they spilled oil because we want compliance with the law;
we built an immunity into that and that's what we're doing with
this law at the state level. We're building an immunity into it
but we're not specifying where narrowly that immunity is going to
be granted. We're saying, you self-audit, you're immune unless
it's criminal. Now this version has taken out criminal and we've
narrowed it. No longer work place safety or health issues; it's
purely environmental. Maybe that's the right incentive. But now
I'm going to drag you back to the very onset of this bill."
Number 343
MS. HANNAN continued, "We don't have a problem in Alaska. The
Department of Environmental Conservation cannot come into your
plant, walk through it, find something that you're non-compliant
with, and say you have been a bad operator and I'm going to fine
you a million dollars today because we don't like the way you've
acted and if you come forward with information and say we've been
a bad operator - gosh, yesterday I walked in the plant and there
was something green and oozy coming out - I shut it off - we've
remedied it, we've cleaned it up, we've sent it to the chemist and
we're gonna take care it - they can't come in a week later and say
`bad operator - million dollar fine.' They don't have the penalty
authority. They have to go to court to do that. The rhetoric from
other states about why we have to do that is because sometimes
state agencies have the authority to do that and it's created a
hostile environment for companies to work in their states. We
don't have that in Alaska. We have not had much civil tort
precedent where companies who are auditing or confidentially doing
compliance orders, reviewing their operations have said, `we're
trying to comply, we're working with it and you're using our tools
against us - you're making it difficult for our employees to talk
to us about what's going on in our plants.' We don't have a
problem in Alaska. In some other states there have been some huge
civil tort damages between workers and operators where the
operators have revealed information or the employees have sought
information and found out that the reason that they're sick is
because at work the ventilation system wasn't keeping the air clean
enough."
Number 362
MS. HANNAN concluded, "Immunity and privilege are very, very
significant issues and when you're giving them broadly, there are
ramifications. I think this is a bad law. I don't think it's a
road we can go down and as much as this bill is vastly improved
over where it started in January, I don't think it can be improved
enough to be an important statute change in Alaska. If we have
problems with our civil laws regulating companies, if we've got
laws on the books that shouldn't be there, let's repeal them. But
I don't think we have them. I'd be happy to give you the citation
about the states that have rejected it. I think that there's much
controversy about whether this provides a significant incentive to
benefit of businesses in Alaska and I think that it would be unwise
for you to pass this into law."
Number 395
CO-CHAIRMAN GREEN asked Ms. Hannan to give the committee the
citation for the record.
MS. HANNAN responded, "It's from a report that I'm happy to leave
with Jeff - a copy of."
CO-CHAIRMAN GREEN asked if the committee had any questions of Ms.
Hannan. Hearing none, he asked Dwight Perkins to come forward and
present his testimony.
Number 411
DWIGHT PERKINS, Special Assistant, Office of the Commissioner,
Department of Labor, testified that Version W before the committee,
does remove the health and safety audits from the bill. He said
the committee had heard today from the states of Oklahoma and Texas
as well as numerous other testimonies from outside the state of
Alaska about this bill and he submitted that to date, no employer
or shop owner has come forward and said the Department of Labor was
causing them great problems. He pointed out the committee had
heard that somewhere between 18-24 states have this legislation.
That may be so, but every state that has it is only in the
environmental audit side with the exception of Texas. Mr. Riley
from Texas couldn't speak on behalf of OSHA there but as
Representative Kott mentioned, the Department of Labor in the state
of Alaska has been given the authority to run as an effective plan
as the federal OSHA and receives revenue in excess of $2 million to
run the state plan. To put it in perspective, Mr. Perkins
mentioned the concerns and problems the Department of Fish & Game
is experiencing with the federal government threatening to take
back that plan and he noted it could very well happen with this.
The Department of Labor thinks it is in the best interest for the
state to handle their own matters. Even though there is a movement
nationwide, we don't care how they do it "Outside." He noted the
Department of Labor is already doing a lot of what is addressed in
the bill. For example, he distributed a pamphlet "Free,
Confidential Consulting Services" which goes to employers
explaining how it works. As Representative Kott had indicated
earlier, it is confidential and it does not go to the enforcement
side and companies are given the opportunity to make sure it's a
safe environment for workers. He said, in addition, the department
promotes safety and well-being in the work place by giving courses,
tapes, videos and information to companies for their employees.
Number 643
MR. PERKINS stated, "In the trying to keep with this timely and
your indulgence with this, what has come before you today is - the
Department of Labor feels that this is in the best interest." He
thanked committee members for placing the legislation in a
subcommittee to allow them time to work on it. He believed it was
very valuable and the Department of Labor agrees with the product.
With respect to the health and safety issues he urged committee
members to concur with the draft that was before them. He
commented the department wants to ensure this is a clean bill and
perhaps it's something that should be worked on during the interim.
He had committed to working with the bill sponsor during the
interim and the sponsor's office could be the conduit to the
companies to enhance communications. He reiterated that to date no
company has come forward to express a problem with the Department
of Labor, Alaska Occupational Safety & Health.
Number 714
CO-CHAIRMAN GREEN noted that a prior testifier had indicated that
Alaska doesn't have the punitive effect that some states may have.
He asked if that applied also with OSHA violations as it does in
environmental violations?
MR. PERKINS responded yes. The consultation section of Alaska OSHA
performs confidential audits for employers and the audit results
are not shared with the enforcement side. The employer is not
fined for violations found in the course of consultation audits.
A consultation survey in process can stop an enforcement inspection
from being initiated. When enforcement does an inspection and
penalties do arise, they can be reduced as much as 97.5 percent
based on good faith, size of employer and the history.
Number 796
REPRESENTATIVE AUSTERMAN asked Mr. Perkins to explain what the
enforcement side referred to.
MR. PERKINS pointed out that when complaints have been generated or
an accident has happened, the enforcement side goes in, checks and
finds violations. Because of certain violations, there are certain
fines attached to each violation of occurrence, depending on what
it is and severity of it. He added, "So, on the enforcement side,
if you will, that is going in and doing the audit because of
complaint matters or checking to make sure the safety of the
workers are protected. Then those fees can be reduced up to 97.5
percent."
Number 842
REPRESENTATIVE AUSTERMAN followed up, "So, when the enforcement
side of the Department of Labor goes out and inspects a seafood
processing plant - which is what I'm most familiar with - and finds
the settling tanks too close to oxygen tanks, railings that are
under repair and not roped off property, the normal process then is
for the enforcement officer to write all this stuff up and then six
months down the road somebody goes in and says, `Here's your
violations and here's what your fines are and now let's sit down
and negotiate what the fine is really going to be.' That's
basically what happens."
MR. PERKINS responded that was basically correct but he believed
that somewhere in the process, the employer has the opportunity,
with OSHA, to remedy the problem. If the problem isn't remedied,
then they're into the fine section.
Number 892
REPRESENTATIVE AUSTERMAN stated that was the aspect of the problem
that he would like the department to take a look at. It appeared
to him that in the instances he had been involved with OSHA
inspections in Kodiak, enforcement comes in and inspects but then
it takes the department about six months to go through the
paperwork before they get back to the employer. At that time, it's
negotiating over what the fine is going to be rather than "please
remedy the problem."
Number 920
MR. PERKINS said he'd look into that. With respect to inspections,
he read, "The safety and health compliance officer will present his
credentials before inspecting a place of employment. The purpose
of an inspection is to determine the work place is in compliance
with Alaska's Occupational Safety and Health standards and regs.
Both the employer and the employee shall be given the opportunity
to accompany the compliance officer during his inspection of the
work place, opening and closing conferences will be held, but
advance notice of inspections will not be given to an employer
prior to the time of actual entry upon property except in the
following situations: In cases of apparent eminent danger to
enable an employer to abate the danger as quickly as possible." So
if it is a life threatening situation, they will not issue a notice
that they're coming, but normally they do.
Number 977
REPRESENTATIVE AUSTERMAN asked if the fines were called program
receipts?
MR. PERKINS wasn't sure if they go into the general fund or back to
the federal government.
Number 1003
REPRESENTATIVE LONG inquired if the last two committee substitutes
had been reviewed by OSHA?
MR. PERKINS replied yes, they had been. He stated, "The concern
that the federal Department of Labor has is that we have to be as
stringent or as effective as the federal plan. And that's the
difference again, where Texas has put it into safety and health
issues, the feds can come in and those people will stand down --
Texas stands down, while the feds collect their information. They
cannot be less effective than the federal plan so regardless of how
many laws that the Texas Department of Labor - I'll call it because
I'm not sure or OSHA - however that falls in that category -
regardless of how many laws they put in that safety and health
audits can be addressed this way as we're talking, the federal
government supersedes them and goes in and they get the information
they need. So, it's a law with no teeth. They can walk right in
and get that information - and they do, because the federal OSHA
does not allow any plan to have privileges and immunities."
Number 1103
CO-CHAIRMAN GREEN asked if there were additional questions for Mr.
Perkins? Hearing none, he asked Marie Sansone to present her
testimony.
Number 1130
MARIE SANSONE, Assistant Attorney General, Natural Resources
Section, Department of Law, said the department has been following
this bill through the entire process and appreciated the changes
that have been made up to date. However, the department does have
serious concerns with the privilege and she had drafted some
language that would codify the privilege that's recognized in
federal case law. Discussions were still underway as to whether
that approach could be agreed upon or not. She feels it has some
very important advantages. She said, "There are two federal cases,
one in the Ninth Circuit that describe and set out all the
requirements for the privilege known as the `self-evaluative
privilege.' Those requirements are fairly succinct and clear.
There are limitations and the cases where they have been applied
are basically reacting to about 25 years of the development of this
privilege of evaluating your own conduct. So, I feel that there's
a body of law there, examples you could look at and information
that you could use to make sense out of this privilege. So to my
thinking, it's a very logical way to proceed. It has some other
important advantages in that we would not get into a federal versus
state law conflict. If we had a case involving environmental laws
and this bill applies to federal, state and local environmental
laws, and there was a question what's the evidence and where are
you going to proceed - in federal court or state court - the
lawyers and parties in that case would have to struggle long and
hard with this question of `Should I apply the federal privilege
law or should I apply the state privilege law' and by using the
federal privilege law, it eliminates that conflict - that dispute
and that would tend to probably -- if we enacted the privilege as
it is in this state law and there was a federal law that was
different and people perceived it was a more narrow, workable
privilege, that would probably tend to force litigants into federal
court where they had something defined and workable. It just seems
to me that this is a good way to preserve our state law - keep
people in having access to state court - not force them into forum
shopping and not get (indisc.) up in lengthy disputes over what
comes into evidence and what doesn't."
Number 1280
MS. SANSONE said, "It also has another advantage in that agencies
like the EPA that are tracking the audit privilege legislation have
indicated they will scrutinize the privilege very carefully. The
federal government does not -- the federal Justice Department and
the Environmental Protection Agency are on record as being strongly
opposed to any statutory audit privilege legislation and they've
stated they will scrutinize our federally delegated programs. So
if we had a privilege law that matched federal law, that wouldn't
create a problem there because we could simply point to the federal
case law and say, `Well, the remedy or the privilege really is no
different than if you went to federal court and so our program
stays fine - it stays consistent with what you can do at a federal
level.' So we feel those are important advantages. I think the
reason for concern maybe is that this privilege operates more like
a normal attorney-client privilege or a trade secret privilege
where if you are the party asserting the privilege, you have the
obligation to assert it to keep the communication confidential -
that's your responsibility, you can't shift that off to someone
else to try to disprove it or enter into confidentiality agreements
and get into trouble if you break those - it keeps the burden where
it belongs on the party that feels that information is highly
sensitive, that it is not the kind of information they want out in
public or need to have out in public - if they keep that
confidential, then that's how it stays. It also has the feature
that if you do evaluate your own conduct, you find problems and
then you don't act on that, that privilege ceases. You have to act
on your knowledge of violations and correct your problems to keep
the information privileged. So that's an important feature to us.
So we will work some more with the other parties on that to see if
it's acceptable. It differs from the bill and perhaps it won't be
so..."
Number 1419
MS. SANSONE further stated, "There's a couple other points I'd like
to make. I was very interested in the testimony from J. Davenport,
the environmental auditor from Oklahoma. I checked - I believe I
have copies of all the state audit privilege laws and I do not have
a copy and I believe Oklahoma does not have an audit privilege law.
He described working on Oklahoma with an audit policy and that is
an alternative to the type of legislation that's before us - is an
agency policies or, particularly maybe with immunity, and he
informed us that was working well. We do have state programs that
do work well where people evaluate their own conduct. Within the
DEC, within the Department of Law, we allow people to - if they did
get into trouble with violations, we have incorporated audits into
settlement agreements to resolve their problem. So that would be
an alternative to the bill. He also mentioned though that these
audits - in Oklahoma, he referred to them as external audits - that
has been an important concern to us. The bill we have before us
refers to internal audits or audits -- a person could audit their
own conduct not necessarily hire someone independent or external,
and we felt that for a long time that has a problem that the
auditor in an internal setting, if there are not appropriate
controls in place, that bias, conflict of interest or perhaps fear
of retaliation or retribution might enter into play and affect the
auditor's work. Another concern has also been that if it's an
internal audit and there's no standard as to who can authorize that
audit and who can conduct it, that there's no assurance that the
auditor will be trained or qualified or have the appropriate
experience. And we still feel those features are really missing
from this bill. That there be some assurance of accountability.
The auditor from Oklahoma mentioned he always made sure the owner
or operator had the wherewithal to conduct and complete the audit
and make the corrections and that's a feature we would like to see,
too. That it really does not help environmental compliance very
well if you can audit but you don't have the money or the authority
to make the corrections. That is critical to us; that the owner or
operator of the facility be the party that is authorizing the audit
and will carry through with it. That's very important."
Number 1592
MS. SANSONE remarked, "He also mentioned the EPA policy. The EPA
policy is another alternative that we feel is very good. It sets
out conditions and requirements that protect the public. So those
are alternatives that would not necessarily have to be in a law
that could achieve the same results. In the bill, we have taken
out the occupational safety and health penalties section completely
and then we've also removed criminal penalties from the
environmental violations. The consequence of that for the
Department of Environmental Conservation is that DEC does not have
administrative penalty authority, so if someone were to audit and
come to DEC and say, `Here's my audit, here's my corrections. I'd
like the immunity from administrative penalties,' they can't get
anything. There's nothing - there is no penalty to immunize them
from, so in a way that's kind of false advertising as far as DEC is
concerned. That would raise the question in my mind, `Is this
really an incentive if you can't get the remedy you want?'"
MS. SANSONE continued, "There's a similar problem with the civil
penalties. The DEC can go to court to get civil penalties for
catastrophic oil spills, well they would not be covered by
immunity. The DEC can also get civil penalties in the area of
hazardous waste although I think Ms. Adair can probably inform you,
most of the hazardous waste enforcement is handled at the federal
level by the EPA under the (indisc.) scheme, so even though that's
theoretically possible, it's not a very great reality. The only
other area where there's a civil penalty is air quality and that's
been in connection with the new Title V permit program. So the
civil penalties are also extremely limited. And the concept then
of giving someone an incentive to come forward and getting immunity
from penalties, there's nothing much to get immunity from and I
guess I see that as a problem to put a lot verbiage in the books
that might lead people to believe they're getting a benefit when
there really isn't that possibility there."
Number 1766
MS. SANSONE said, "Sara Hannan indicated some of the states with
the audit privilege had strict penalties. That is true. This
whole idea commenced in the state of Oregon. They dramatically
increased their criminal penalties for environmental violations
raising them in all areas to felonies and expanding the number of
misdemeanors. So when they created the audit privilege, it was
part of a compromise in that legislation. It was part of a package
deal that if we dramatically increase the penalties, we need some
mechanism to help people not get into a punitive situation. We
just don't have that there to negotiate with or to give away. So
it does raise the question in my mind, `Is the immunity provision
really necessary? Is it really an incentive?'"
MS. SANSONE said, "We had offered in the Senate Finance Committee
that even our criminal division would consider audits as a
mitigator. That seems to make more sense. I don't think we need
all the detailed provisions to achieve that but I would just really
question is the immunity necessary. It just doesn't seem it is."
MS. SANSONE concluded, "I do think the privilege would hurt the
state in our cost recovery cases where we're trying to recover
money for contaminated properties whether it's through DEC trying
to recover money expended from the cost recovery fund or from the
Department of Natural Resources (DNR) or perhaps the Department of
Transportation, Fish and Game or any of the departments that have
property or manage property, they would be at a disadvantage. And
I think the privilege would hurt us in enforcing the law when we
really do need to take those official steps."
Number 1902
REPRESENTATIVE LONG asked, "Will the federal government still
oppose, you know these immunities to the privilege (indisc.) will
fulfill the federal requirements, you know under OSHA and stuff?"
MS. SANSONE responded, "The federal government has indicated that
if the immunities were constructed in such a way as to reduce the
effectiveness of an enforcement program, that they would oppose
that and where they have a delegated program, consider withdrawing
the delegation. The federal government also has the option in that
circumstance of bringing its own enforcement action. So it is
possible that if the immunity does interfere with what is a fair
enforcement policy, they would step in and take their action."
Number 1985
REPRESENTATIVE LONG inquired if this bill as it is written would
interfere with the federal law.
MS. SANSONE said, "It potentially interferes in the area of air
quality because that is one area where the legislature gave DEC
statutory authority to go to court to collect civil penalties for
violations of the air regulations. And it also potentially would
undermine the underground injection control program in the Alaska
Oil and Gas Conservation Commission. That commission has a
delegation from the EPA to regulate pollution - or disposal of
waste into underground injection wells. So that would be another
area. It's potentially more serious for the Oil and Gas Commission
because they do have administrative and civil penalty authority, I
believe. So they need to be as effective."
Number 2073
REPRESENTATIVE NICHOLIA said that Ms. Sansone had made reference to
Oklahoma not having privilege and asked how she felt about the
privilege being in the legislation before the committee.
MS. SANSONE stated, "What I was referring to was that Oklahoma had
not enacted a program into statute. They apparently - according to
the earlier witness, have a policy. Oklahoma would have probably
on its books some privileges to protect evidence like the attorney-
client privilege and the work product doctrine, trade secret
privileges. These are pretty widely consistent throughout the
United States. So they probably do have some privilege that a
person could assert to protect highly sensitive information,
although they don't have an audit privilege, per se."
Number 2164
REPRESENTATIVE NICHOLIA again asked how Ms. Sansone felt about
having the privilege in this legislation.
MS. SANSONE replied, "We do not support the privilege as it's
drafted and incorporated into this document. We feel it is very
broad and subject to abuse. And even though we have a number of
conditions that have been put into this bill to try to guard
against abuse, that there is so much opportunity for litigation and
dispute over what those terms mean. There's also a problem with
the provision in the bill about how to get disclosure through an in
camera proceeding if we believe there's been fraud or if someone
has not acted in good faith. In that exception, the burden of
proof would be on the state to come into the judge's chambers and
try to prove that a party had engaged in a fraud or was protecting
-- engaged in audit and was protecting information for a fraudulent
reason or basically acting in bad faith. But to do that, we do not
get access to the documents that we would need to prove that we
essentially -- we would be in front of the judge and the judge
would have the documents and be able to review them, but we would
be arguing about something that we could not see or evaluate. We
don't feel that that is very realistic or that that would work."
Number 2291
CO-CHAIRMAN GREEN thanked Ms. Sansone for her testimony and asked
if there were any questions from the committee.
Number 2317
NANCY WELLER, Medical Assistance Administrator, Division of Medical
Assistance, Department of Health & Social Services, testified the
division supports the subcommittee's recommendation to take out
health and safety because it eliminates the department's concerns
with this bill. She concluded that it was never anyone's intent
that this bill apply to the Medicaid program in the way they saw it
would have with the definition of environmental and health and
safety audit that had been in all the previous versions of the
bill. She explained they guarantee that health care provided in
facilities is safe and try to guarantee that the federal and state
dollars that are spent to pay for health care for Medicaid
recipients is paid appropriately. She stated the immunity and
privilege make absolutely no sense when it comes down to these
functions because she couldn't believe that anyone would want to
give an individual the right to provide health care that was not
done in a safe manner or hide from their responsibility to pay back
funds that were inappropriately paid to them by the state and
federal government for the Medicaid program."
Number 2422
MS. WELLER concluded they could only see that this bill as it
applied to their functions would allow people who wanted to be
dishonest to take money they were not entitled to. She reiterated
the Department of Health and Social Services supports the
subcommittee proposal.
TAPE 96-75, SIDE A
Number 026
JANICE ADAIR, Director, Division of Environmental Health,
Department of Environmental Conservation, thanked members of the
subcommittee for their hard work but the department still has
problems with the privilege. She thought the immunity is closer to
what the department currently does, particularly with the criminal
provisions being deleted. She hoped that in a couple of years,
they wouldn't be trying to back track from the privilege because
something had been kept a secret from the people of Alaska and
there has been a bad result that came from that. She stressed that
is really the department's concern. They deal not only with the
good operators, but operators who are less than honorable, so they
come at this with a full range of experience. It isn't
supposition, it's real stuff. She has strong concern that a
privilege will complicate that even more than what's currently
happening. Testimony from other individuals and on other bills has
indicated that DEC's enforcement authority is really very limited.
They don't have administrative penalty authority, they only have
civil penalty authority for two different programs, so they often
have to take people to court. This just takes it back one more
step and it's the people of the state that end up suffering from
that, which is the department's concern.
Number 235
CO-CHAIRMAN GREEN inquired, "If you had an organization that was
burning refuse and for some reason they were in violation - they
come to you under this immunity and privilege system and then begin
to drag on and on about correction. Would this bill even as it's
modified give them some sort of a hedge against acting like a good
operator?"
MS. ADAIR responded she thought that it could. She stated, "There
is a provision in here that says that we can still have injunctive
relief. We can still do what we can but they can hide things and
that is really -- the immunity presumes that all your cards are on
the table - we're all looking at the same things and we're saying,
`Okay, we see what you're dealing with here and we won't take any
action against you so long as you do these things.' But the
privilege allows people - and the folks that you have heard from
are not the ones that we're concerned about. The ones that we're
concerned about aren't here - they can take that stuff, call it an
audit, hide it and we won't be able to. And years from now someone
ends up or a community ends up with a problem and we may never be
able to figure out what happened. And there have been cases like
that in this state. Many of them have involved the military, but
I think that we've seen the problems that the kind of a secrecy
that the military shields things with and we get mad about that and
now we're kinda gonna do that."
Number 395
REPRESENTATIVE OGAN referred to page 6 of Version W which lists the
things that are not privileged and asked Ms. Adair if she was
familiar with that list.
MS. ADAIR responded affirmatively.
Number 395
REPRESENTATIVE OGAN commented that as he reads the list of things
that aren't privileged materials, it appears to him the department
still has a great deal of authority in these areas. He brought up
the issue of paranoia and thought that as a business owner he would
feel a whole lot better if he did an environmental audit for his
own health and safety if he was around chemicals and things of that
nature.
MS. ADAIR commented, "One of the things that we're trying to do in
sort of a government reduction - because we're out of room for all
the paper - is try not to ask people to give us everything in the
world. That has been our department's operating procedure over the
years - we want to look at everything you've got and then we'll
tell you what we think. What we're moving to now is we're trying
to get away from that because we're trying to develop that better
good neighbor policy with the people that we regulate in
understanding that their documents are open to us now so that we
can look at them. Instead of giving us everything, it will be only
when we need to see it. So yes, there is a laundry list here and
we certainly appreciate that list, but there's a lot of things that
we don't require and we don't require them on the premise that we
can access them if we need them. That's particularly the case
where there's a problem with compliance. People typically don't
keep records that would indicate noncompliance, it takes putting
together sort of a case." She referred to the paranoia issue that
was brought up by Representative Ogan and said the immunity gets to
the situation Representative Ogan brought up. If a business owner
knows he/she could look at their operation, find a problem, report
that problem to DEC and be immune from the department's "storm
troopers," that's really what Representative Ogan was talking
about. But the privilege is separate and distinct from that. She
explained the privilege says that you may or may not report it to
the department, but you can take the documentation that you find
and stamp it privileged and no one will ever see it again. She
said, "That's one of the fallacies here is that those things work
separately. So you have the documentation - we'll use somebody
else as an example - that finds a violation and you mark it as
privileged and it goes away. You don't ever report the violation
to us, so immunity isn't even a question. Because you've not
reported it to us, we can't go back and get that documentation that
shows the violation. Perhaps through an observation, we find a
problem and we come to this operator and say, `We've observed this,
can you give us some documentation on your discharges' and they
say, `I'm sorry, that was part of an audit and it's privileged.'
Then we're stuck with having to go back perhaps and re-create
information if we can or do a separate investigation to uncover
what we might have been able to more easily obtain through the
documents that were part of the audit."
Number 811
REPRESENTATIVE OGAN said, "On that point, but you said that if you
find something by observation and the violator said, `I'm sorry
that was privileged' however, under this section it's not
privileged and it would seem to me that if there were things --
that you could require things by regulation that would not be
privileged by simply maybe adjusting some of the things that are
required." He believed that's what it said in the legislation.
MS. ADAIR said, "We read this and I could certainly be reading this
wrong as well, but the information that we gather wouldn't be
privileged but that the person we are inspecting doesn't have to
give us information that was done as part of their audit - that
that still says privileged but to the extent that we gather it or
we observe it, that there's a distinction made there. That's how
I read it and if I am incorrect, then Ms. Sansone can correct me.
And yes, we could amend our regulations to require people give us
a bunch of stuff. It just kind of goes against what we've been
trying to do which is not be so anal-retentive about this and
understand that there's going to be a whole lot of information in
people's files that we can get to when we need it but they don't
need to give it to us, report to us and have it be in our files and
in their files. We were just trying to get away from that whole
mode of doing business."
Number 911
REPRESENTATIVE OGAN commented, "It seems to me that what you just
said is that if you discover the information somehow or a problem
somehow, that that information is not privileged, but their audit
is. But you still have the ability to inspect and discover and do
this stuff anyway. It's just that if they went ahead and did it,
they don't have to give you the information."
Number 951
CO-CHAIRMAN GREEN said, "Perhaps, quite often there has to be shown
that there has been - it's not just a one time shot - and what I
think Ms. Adair is saying is that if you go in and make this audit
just ahead of a normal inspection by DEC, all the monitoring that
you may have been doing suddenly becomes privileged and so now
you're kind of handcuffed as to what you could say. We saw a - a
black smoke incident or something - that's not the same as saying,
`Well ya, there have been black smoke incidents every week for the
last five years' because that's all now privileged information."
MS. ADAIR remarked that would be one example, but that is the
distinction. She added, "What we see, we can use but we can't get
the information that might back it up. We'd have to re-create that
in some fashion."
Number 985
REPRESENTATIVE NICHOLIA recalled that a person had died from
drinking water that was contaminated with chlorine and asked what
would have happened in that case if this legislation had been in
effect.
MS. ADAIR didn't believe that case would have been impacted by this
legislation. Drinking water systems are legally required to
monitor for different constituents in the drinking water. If
chlorine is used, that is one that has to be monitored. She didn't
know all the details of the case that may have been impacted by
this bill.
Number 1125
MS. SANSONE added, "In a case like that, DEC would have a lot of
required records in its file that they had been submitting. They
may not have other records that indicated what the owner/operator
of that system really knew about the management of the system.
That is a type of record that you would be concerned about in that
incident - are there audits or reports that indicate the operator
or owner should have been on notice that the chlorine was being put
in at an excessive rate and didn't act - that would be a question
the state would want to ask and the victim's family would want to
ask just what was going on at that facility. That information DEC
probably would not have the full spectrum of that - it's not all
required. So I don't know that it did impact that case. It could
impact a similar case."
REPRESENTATIVE NICHOLIA said she was wondering if this bill passed,
would it have a negative impact on a case like that?
Number 1145
MS. SANSONE replied, "This bill would have a negative impact on
cases like that because the evidence that you conducted an audit
and you found you had a problem or series of problems and the
auditor told you what you needed to do to fix those problems, if
years go by and the problem is not fixed and then a person is
injured or dies as a result, that audit report is probably the most
valuable evidence of negligence that the business was not
fulfilling its obligations to maintain safe operations. That they
knew they had a problem, the auditor told them what needed to be
done to fix it and then they don't fix it. That is extremely
valuable evidence - that is crucial evidence. And the audit
privilege in this bill is drafted so broadly that it could exclude
that evidence."
Number 1184
REPRESENTATIVE AUSTERMAN inquired, "Doesn't this bill come back to
knowingly and this kind of stuff where you're actually committing
a crime basically when you do that and somebody dies that you're
exempt from this."
MS. ADAIR responded the privilege applies to criminal proceedings.
The immunity doesn't, but the privilege does and what Ms. Sansone
was talking about was keeping evidence privileged that could
indicate negligence and the department wouldn't be able to obtain
that.
Number 1224
MS. SANSONE added, "The conditions that are in the bill about
immunity not being available if you had knowingly committed a
violation or intentionally or recklessly, those provisions are
found beginning on page 7 in Section 475 of the bill which is the
immunity provision and this is a concern that we've had throughout
- they don't carry over to the privilege. The limitations and
restrictions all kick in for immunity - the privilege is still wide
open as to whether you truly are a bad actor, whether you're
intentionally engaged in wrongful conduct. And that is the major
problem with the privilege that we see. The limitations are all
built in for immunity but they don't carry over to the first part
of the bill - the privilege."
Number 1283
CO-CHAIRMAN WILLIAMS commented that from what he was hearing, the
department would rather not see the privilege in the bill at all.
MS. ADAIR responded that was correct.
CO-CHAIRMAN WILLIAMS asked if the department could live with the
other portion of the bill?
MS. ADAIR believed the department could live with the other portion
of the bill, as currently drafted.
CO-CHAIRMAN WILLIAMS remarked he would like to hear comments from
the bill sponsor.
Number 1351
MIKE PAULEY, Legislative Administrative Assistant to Senator Loren
Leman, said, "Let me start with the question of privilege. You
know, it's an interesting thing that as this bill has moved through
the legislature, the element of privilege has been the most
controversial element of it. There have been concerns raised on
the immunity and whether it reaches too far in certain areas or
not, but at least conceptually no one has had as much problem with
the immunity as they have with the privilege. The reason I find
this interesting is that we've had a lot of discussion about the
other states that have passed these laws and in the other states
the privilege is the more uniform element that has been included in
the other incentive laws in the other states. The 17 states that
have enacted these laws so far, 16 of the 17 provide privilege.
Only South Dakota has enacted a law which does not grant privilege.
Their bill is immunity only. So it is the privilege that has been
the unifying factor in the self-audit incentive bills and it's been
the immunity that has kinda gone 50/50 in the other states. Ten of
the 17 states provide privilege and immunity and, of course, the
Alaskan legislation is in that spirit. In addition, there's two
other bills - Ohio and South Carolina where the legislatures have
approved them; they're sitting on the governor's desk and are
expected to be signed. To be honest, I do not know - I can't tell
the committee how those 2 bills stand with regard to privilege and
immunity but at least of the 17 that I'm informed about, all but 1
include the privilege. We think the privilege is an essential
thing. If you look at the Constitution and read the Fifth
Amendment, there is a sense in which it is almost in that spirit -
you know - the right not to incriminate oneself."
Number 1476
MR. PAULEY continued, "When we talk about audit reports, we're
talking about things that are not required by the law and I would
refer the committee to the section of the bill that Representative
Ogan read from that anything that you're required to report already
- anything that you already do in the course of a normal business
activity, such as inventory records - you know, things that aren't
required by law but that you just do anyway as a normal business
activity - that is not protected by privilege. So when we talk
about what is protected by the privilege, we're talking about a
very narrow thing that where you're going, you're going above and
beyond what the law minimally requires. You're being a good
citizen, you're taking money out of your business profits and
valuable time and having a compliance audit done that no agency is
requiring you to do - no one is forcing you to do it - but you're
being proactive to try to evaluate your operations and see if
you're in compliance with the law. Off the documents to be used in
essence, as a rope to hang you with. A lot of companies think
that's exactly what will happen. You know, the Price Waterhouse
survey which I referred to in my testimony last week - 369
companies polled nationwide and 10 percent of the companies that
are doing audits now reported that those documents had been used in
enforcement actions against them; 15 percent of them reported that
their audit documents had successfully been obtained from hostile
third parties in litigation actions. So, it is a perception. The
critics say, `Give us some examples in Alaska.' The fact of the
matter is, is that we're talking about an issue of perceptions. As
Mr. Davenport stated this morning, many of the companies that
operate in Alaska, operate in other states. The experiences
they've had in other states color their attitudes about their
operations up here and you know, I used the example earlier of the
Internal Revenue Service. I think if we were to go out on a
sidewalk and just do the man-on-the-street interview and ask people
if you discovered - you're going through your files and you
discovered you did a little bit of short-term work last year - you
earned $2,000 and forgot to report that to the IRS - when you ask
the average citizen, `Do you think that if you voluntarily report
to the IRS that you unknowingly forgot to disclose this income, do
you think they are just going to say okay fine, pay the money and
the interest that you owe and no penalty since you were a good
citizen in turning yourself in.' I think you would find most
people - you know 90 percent probably - would say no way, they're
going to nail me and I'm just going to pretend that I never saw
this and that unfortunately is what a lot of people in the
regulated community are doing. It's the old adage that no good
deed goes unpunished and what the sponsor of this legislation is
trying to do is turn that adage on its head and say that we aren't
going to punish good deeds, we're going to nail bad actors but we
are not going to take conscientious people and punish them."
REPRESENTATIVE AUSTERMAN inquired, "To the points you were just
making, Mike - in reference to what was stated by DEC and the
Department of Law a few minutes ago in reference to immunity versus
privilege in reference to committing an act - knowingly committing
an act and then trying to cover it up with the privilege. How do
you respond to the fact that you can't get in then if they've done
their self-audit and use any of their stuff that they could tie up
under the privilege."
MR. PAULEY replied, "There's a couple of different levels. First,
again we have to start with the exceptions for non-privileged
materials and you'd have to ask the question of `What is it that an
agency ordinarily has access to in its enforcement actions that are
going to be denied under the privilege law, given the fact that we
have this very long list of exceptions.' That's one issue. The
second issue is that to the extent that this bill encourages
regulated entities to be performing audits that would not otherwise
exist, you have to ask yourself, `If the documents weren't there in
the first place, you know they wouldn't be there for the agency to
even be attempting to subpoena them or confiscate them in the first
place.' That's the second issue. The third issue is that we have
a section in the bill that provides for an in camera review where
if an agency believes - if they have grounds to suspect that an
audit is being asserted for a fraudulent purpose or that the audit
was being used to cover up documents that were in response to an
investigation that was ongoing or if the audit report shows
evidence that there is non-compliance and that attempts to bring
the entity into compliance were not taken - if any of those things
can be demonstrated in an in camera review, the privilege is
jeopardized."
Number 1719
CO-CHAIRMAN GREEN announced that due to time constraints, the
committee needed to wrap up. He thanked the subcommittee for an
exemplary job.
Number 1740
REPRESENTATIVE OGAN remarked that the clearest testimony he had
heard was that of Mike Pauley. He made a motion to move Amendment
1, Revised W.
CO-CHAIRMAN GREEN asked if there was objection to Amendment 1?
Representative Kott objected for discussion purposes.
MR. PAULEY commented, "When we first introduced this bill, from the
beginning it was our intent to have the broadest possible
application to include not only incentives for environmental
compliance but also for work place safety. And I do want to
emphasis that in the bill health and safety is defined as
occupational health and safety, so we're only talking about work
place safety, not patient care standards or drinking water or blood
supply or any of the other number of things that have been raised
during the discussion. The reason why we think it's important to
include the occupational safety element to this bill is that
companies that currently conduct compliance audits - it's been our
experience that most of them do so for both areas. I referenced a
popular textbook in my last hearing that is used to guide companies
in how to do this, this is one that's called `Environmental Health
and Safety Audit Handbook.' You know, companies that do these
usually do them together. I spoke with the person from ARCO Alaska
who does their audits and his business card says `Environmental
Health Safety Compliance Unit.' So companies group these things
together and I just want to reiterate the argument I made in the
subcommittee that if the committee believes that the bill is a good
incentive for environmental compliance, then we think the same
incentive would be good for worker safety as well and we would just
urge that that be included in the bill."
CO-CHAIRMAN GREEN asked if the objection was maintained. The
objection was maintained and Co-Chairman Green called for a roll
call vote. Voting in favor to adopt Amendment 1 were
Representatives Ogan and Green. Voting against the adoption of
Amendment 1 were Representatives Austerman, Kott, Long, Nicholia
and Williams. Amendment 1 failed.
Number 1869
CO-CHAIRMAN WILLIAMS made a motion to pass HCS CSSB 199, Version W
from the House Resources Committee with individual recommendations.
CO-CHAIRMAN GREEN noted there was an objection. He asked for a
roll call vote. Voting in favor of the motion were Representatives
Austerman, Kott, Ogan, Williams and Green. Voting against the
motion were Representatives Long and Nicholia. CO-CHAIRMAN GREEN
announced that HCS CSSB 199(RES) passed out of committee.
CO-CHAIRMAN GREEN announced the committee would recess to the call
of the Chair and they would try to hear SB 247 the following day.
| Document Name | Date/Time | Subjects |
|---|