Legislature(2001 - 2002)
03/01/2002 01:10 PM House RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE RESOURCES STANDING COMMITTEE
March 1, 2002
1:10 p.m.
MEMBERS PRESENT
Representative Beverly Masek, Co-Chair
Representative Drew Scalzi, Co-Chair
Representative Hugh Fate, Vice Chair
Representative Joe Green
Representative Mike Chenault
Representative Lesil McGuire
Representative Gary Stevens
Representative Mary Kapsner
Representative Beth Kerttula
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 368
"An Act authorizing the commissioner of community and economic
development to refinance and extend the term of a fishery
enhancement loan."
- MOVED CSHB 368(FSH) OUT OF COMMITTEE
HOUSE BILL NO. 376
"An Act relating to management of fish and game in and on the
navigable waters and submerged lands of Alaska."
- HEARD AND HELD
HOUSE BILL NO. 382
"An Act relating to the evaluation and cleanup of sites where
certain controlled substances may have been manufactured or
stored."
- MOVED CSHB 382(RES) OUT OF COMMITTEE
CONFIRMATION HEARING
Board of Game
- CONFIRMATION HEARING POSTPONED
PREVIOUS ACTION
BILL: HB 368
SHORT TITLE:FISHERY ENHANCEMENT LOANS
SPONSOR(S): REPRESENTATIVE(S)HARRIS
Jrn-Date Jrn-Page Action
02/01/02 2116 (H) READ THE FIRST TIME -
REFERRALS
02/01/02 2116 (H) FSH, RES
02/08/02 2192 (H) COSPONSOR(S): WILSON
02/13/02 2257 (H) COSPONSOR(S): MCGUIRE
02/15/02 2292 (H) COSPONSOR(S): KERTTULA
02/25/02 (H) FSH AT 3:30 PM CAPITOL 124
02/25/02 (H) Moved CSHB 368(FSH) Out of
Committee
02/25/02 (H) MINUTE(FSH)
02/27/02 2404 (H) FSH RPT CS(FSH) 5DP 1NR
02/27/02 2405 (H) DP: DYSON, SCALZI, KERTTULA,
STEVENS,
02/27/02 2405 (H) WILSON; NR: COGHILL
02/27/02 2405 (H) FN1: (CED)
02/27/02 2418 (H) COSPONSOR(S): LANCASTER
03/01/02 (H) RES AT 1:00 PM CAPITOL 124
BILL: HB 376
SHORT TITLE:FISH & GAME IN NAVIGABLE WATERS
SPONSOR(S): REPRESENTATIVE(S)OGAN
Jrn-Date Jrn-Page Action
02/01/02 2121 (H) READ THE FIRST TIME -
REFERRALS
02/01/02 2121 (H) RES, JUD
03/01/02 (H) RES AT 1:00 PM CAPITOL 124
BILL: HB 382
SHORT TITLE:CLEANUP OF ILLEGAL DRUG SITES
SPONSOR(S): REPRESENTATIVE(S)GUESS
Jrn-Date Jrn-Page Action
02/04/02 2144 (H) READ THE FIRST TIME -
REFERRALS
02/04/02 2144 (H) RES, FIN
03/01/02 (H) RES AT 1:00 PM CAPITOL 124
WITNESS REGISTER
JOHN MANLY, Staff
to Representative John Harris
Alaska State Legislature
Capitol Building, Room 513
Juneau, Alaska 99801
POSITION STATEMENT: Presented HB 368 on behalf of
Representative Harris, sponsor.
GREG WINEGAR, Director
Division of Investments
Department of Community and Economic Development (DCED)
P.O. Box 34159
Juneau, Alaska 99803-4159
POSITION STATEMENT: Testified that DEC is neutral on HB 368,
which would allow aquaculture associations to refinance existing
loans to take advantage of lower interest rates.
JOHN CARTER, Director
Douglas Island Pink & Chum, Inc. (DIPAC)
2697 Channel Drive
Juneau, Alaska 99801
POSITION STATEMENT: Testified in support of HB 368; indicated
refinancing is a good business practice.
DAVE COBB, Business Manager
Valdez Fisheries Development Association (VFDA)
P.O. Box 125
Valdez, Alaska 99686
POSITION STATEMENT: Testified in support of HB 368; indicated
the bill is needed by the commercial fishing industry and the
hatchery system to remain competitive in today's global
fisheries environment.
REPRESENTATIVE SCOTT OGAN
Alaska State Legislature
Capitol Building, Room 108
Juneau, Alaska 99801-1182
POSITION STATEMENT: Spoke as sponsor of HB 376.
DICK BISHOP
Alaska Outdoor Council (AOC)
1555 Gus's Grind
Fairbanks, Alaska 99709
POSITION STATEMENT: Testified that AOC supports HB 376 and
believes it is important to reemphasize the Alaska Supreme
Court's finding.
REPRESENTATIVE GRETCHEN GUESS
Alaska State Legislature
Capitol Building, Room 112
Juneau, Alaska 99801-1182
POSITION STATEMENT: Testified as sponsor of HB 382.
NATHAN JOHNSON, Staff
to Representative Gretchen Guess
Alaska State Legislature
716 West 4th, Suite 200
Anchorage, Alaska 99501
POSITION STATEMENT: Testified on HB 382.
JULIA GRIMES, Lieutenant
Alaska State Troopers
Department of Public Safety
5700 East Tudor Road
Anchorage, Alaska 99507
POSITION STATEMENT: Testified in support of HB 382; indicated
the state has an obligation to be aggressive in evaluating
harmfulness of sites and protecting public health.
TIM ROGERS, Legislative Program Coordinator
Municipality of Anchorage
P.O. Box 196650
Anchorage, Alaska 99519
POSITION STATEMENT: Testified in support of HB 382; indicated
the bill sets up a very good process to ensure that properties
are made safe for future tenants.
KURT KORNCHUCK, Detective
Anchorage Police Department
1630 East Tudor Road
Anchorage, Alaska 99507
POSITION STATEMENT: Testified in support of HB 382; indicated
illegal drug labs are a very big problem and that the bill
provides a tremendous benefit for people with children who
unknowingly rent these sites.
JANICE ADAIR, Director
Division of Environmental Health
Department of Environmental Conservation
555 Cordova Street
Anchorage, Alaska 99501
POSITION STATEMENT: Testified on HB 382; answered technical
questions regarding testing of substances.
ACTION NARRATIVE
TAPE 02-12, SIDE A
Number 0001
CO-CHAIR DREW SCALZI called the House Resources Standing
Committee meeting to order at 1:10 p.m. Representatives Scalzi,
Masek, Fate, Kapsner, Chenault, and Stevens were present at the
call to order. Representatives McGuire, Green, and Kerttula
arrived as the meeting was in progress.
HB 368-FISHERY ENHANCEMENT LOANS
Number 0010
CO-CHAIR DREW SCALZI announced the first order of business,
HOUSE BILL NO. 368, "An Act authorizing the commissioner of
community and economic development to refinance and extend the
term of a fishery enhancement loan." [Before the committee was
CSHB 368(FSH).]
Number 0089
JOHN MANLY, Staff to Representative John Harris, Alaska State
Legislature, presented HB 368 on behalf of Representative
Harris, sponsor. Mr. Manly told the committee the bill would
allow the commissioner to reduce interest rates and perhaps
extend the term on the fisheries enhancement loan to ensure that
the hatcheries are more viable.
Number 0275
GREG WINEGAR, Director, Division of Investments, Department of
Community and Economic Development (DCED), explained that [HB
368] would allow aquaculture associations to refinance existing
loans and thereby take advantage of lower interest rates
[presently] in effect; the process is similar to that for a
homeowner refinancing a home loan. He said [DCED] has the
ability under the commercial fishing revolving loan fund. Mr.
Winegar mentioned that similar legislation was passed a few
years ago. He said a number of commercial fishermen are also
refinancing their loans at this time
MR. WINEGAR indicated although there will be an impact on the
[revenue], as shown in the fiscal note, this won't adversely
impact the fund, which is very strong; furthermore, the fund is
completely revolving and doesn't get any money from the general
fund, so it won't impact the integrity of that fund. He pointed
out that lowering the interest rate on these loans will improve
the financial picture of [aquaculture] associations, so it will
increase their ability to service existing debt. Finally, [HB
368] will not have an negative impact from an administrative
standpoint. There is a very streamlined process in place to
handle these kinds of requests and it won't create any
difficulties, he said. In response to a question from Co-Chair
Scalzi, he said DCED has no difficulties with [HB 368]; the
official position is neutral.
CO-CHAIR SCALZI asked Mr. Winegar if he had contacted the
Department of Revenue and [determined] that the fiscal impact
would be minimal to the fund itself.
MR. WINEGAR answered in the affirmative.
Number 0516
JOHN CARTER, Director, Douglas Island Pink & Chum, Inc. (DIPAC),
testified before the committee. He reported that during a
presentation of the fish caucus, the McDowell Group had
demonstrated that the enhancement program across the state has
become a serious economic engine for Alaska. He said, "In the
last ten years, the economic output - the first wholesale value
- was something on the order of $1.4 billion." Given the
troubled times occurring now, he said those kinds of numbers are
very important. In 2000, it was over $200 million, and
approximately $7 million to $10 million in sport-fish revenue
through charters and so forth.
MR. CARTER told members the McDowell Group's presentation was
interesting because [it highlighted] how many areas of the state
are impacted. He said the situation is "use or pay." It used
to be that the state, through the Alaska Department of Fish and
Game (ADF&G), paid for the enhancement program in Alaska with
annual appropriations. He explained that fishermen pay a
percentage to their regional [aquaculture association] for the
enhancement and cost-recovery, so the state doesn't really have
to pay out anything.
MR. CARTER referred to questions about the general fund. He
offered his thinking that there's a positive impact because the
raw fish tax adds up to between $1 million and $2 million
annually, which goes into the general fund. A similar amount
goes to communities where the money was raised or where the fish
were caught. He said he thinks it's good business to allow
refinancing; in private industry, it's going on across the
country. It would help hatcheries become more financially sound
and, in many cases, would allow more fish to get to the
fishermen. In the case of DIPAC, for example, he said a lot of
what "we" do is for the sport fish community; it's one more
chance to allow "us" to do that work. He told the committee
that he would appreciate support of [HB 368].
CO-CHAIR SCALZI remarked that it was a very good presentation at
the fish caucus; moreover, the hatcheries did a great job
showing the financial impact to the state. He referred to an
information sheet and said about 11 hatcheries will be affected
by [HB 368]. He said if the loans are received today, they
could be as low as 6 percent, compared to 9 percent. He pointed
out that the savings on the interest the hatcheries [realize]
goes directly to the common property; moreover, it would offset
the expenses of running a hatchery, so there is more available
for the harvesters. He remarked that any savings to the
hatchery is, in turn, put back into the economy.
Number 0871
DAVE COBB, Business Manager, Valdez Fisheries Development
Association (VFDA), testified via teleconference. Mr. Cobb told
the committee [HB 368] is one of the "tools" needed by the
commercial fishing industry and the hatchery system to remain
competitive in today's global fisheries environment. The
refinancing of hatchery loans at the prevailing interest rate
will allow most hatcheries to reduce their annual loan payments
and cost of operations significantly, he said. Any reduction in
the overall operation budget of VFDA will mean more fish to the
commercial fishermen in the area.
MR. COBB said VFDA believes although this bill is important to
the state hatchery system, it is only one of many changes that
must occur if the Alaskan fishing industry is to survive. The
hatchery system established by the legislature in 1974 has met
or exceeded expectations, he suggested. The commercial common
property harvest [of] hatchery salmon exceeds 1 billion pounds;
there has been an ex-vessel value of more than $340 million over
the last ten years. Every opportunity the hatchery system has
to become more cost-effective and cost-efficient only makes good
business sense, he added.
MR. COBB told members, "We have been good stewards of the public
funds entrusted to us to raise fish; this bill allows us to
manage those funds more effectively and efficiently." He
suggested the competitive playing field has changed for Alaska
from a strong market presence to massive global competition in
dumping fisheries products on the market at less than the cost
of production. Alaska, VFDA, and all industry players must
change in order to survive in this competitive global
marketplace, he said. He reiterated that [HB 368] makes good
business sense and will have no impact on the general fund
dollars.
Number 1034
REPRESENTATIVE FATE remarked that [HB 368] is a good bill. He
referred to [page 3, paragraph (11)] and suggested adding, "or a
condition which jeopardizes the fishery or the hatchery," after
the word "borrower". He indicated this would give the
commissioner a better tool in ascertaining the condition of that
fishery and possibly allowing a blanket reduction of term, if
applied for. He indicated that [the suggested change] would
create fairness and extend the bill to do a better job.
MR. WINEGAR said he didn't have any difficulty with adding that
language, which would [result in] broader abilities. He added
that the current wording also works well.
CO-CHAIR SCALZI expressed concern about an unforeseen
consequence.
REPRESENTATIVE KERTTULA asked Mr. Winegar if there is a risk of
having a problem with his fiduciary duty in the trust.
MR. WINEGAR explained that each [borrower] would be looked at on
an individual basis, which is how [the department] handles this.
REPRESENTATIVE KERTTULA asked Mr. Winegar how a fishery is
looked at, and whether the [suggested language change] is
unnecessary and runs the risk of "opening you up somehow."
MR. WINEGAR reiterated that each would be looked at on an
individual basis, to ensure that the particular aquaculture
association is in good standing. He said he didn't think the
[suggested language change] would preclude [the department] from
doing so. He said there is a streamlined process, but the
[borrower] would need to apply for the refinancing.
Number 1336
REPRESENTATIVE STEVENS requested clarification of the
"conditions" in the [suggested language change].
REPRESENTATIVE FATE offered the example of a borrower that is a
fleet [belonging to a company]. He remarked, "If that fleet
were to go under because you didn't extend the term, it would
affect the fishery, and that has to be taken into
consideration." He said he was thinking beyond just the
individual borrower and of the effect it might have on a fishery
under certain circumstances. He said he wanted to expand [the
language] so the department wasn't "hand-tied." The perception
would be that there would be an even playing field. This goes
beyond the perception, he said - it goes to the actual world of
finance where things can happen. He mentioned the recent Enron
[financial collapse] and how it affected the entire financial
world.
CO-CHAIR SCALZI expressed concerns that the present fisheries
and the state of the loan programs are very "touchy." He said
he can appreciate the concern and the broadening of the term,
but without having a lot of discussion about what [the suggested
language change] would mean from a legal standpoint, it might be
[better] to leave it as it is. In regard to hardship on the
borrower, the department has a good latitude of how far [a
borrower] can go, he said. He said he would be nervous about
tying the fishery in, because the fisheries are in jeopardy now.
Moreover, he said he wouldn't want to put undue pressure on the
department to extend a loan that was bad.
REPRESENTATIVE FATE agreed it warranted discussion. He
recounted a personal experience that made him familiar with what
can happen when these loans occur.
CO-CHAIR MASEK referred to backup in the bill packet.
Currently, she said, DCED is unable to refinance loans from the
Fisheries Enhancement Revolving Loan Fund for the hatchery
system; similarly, prior to 1993, loans from the other fund -
the Commercial Fisheries Revolving Loan Fund - could not be
refinanced. This change [provides] that the hatcheries would be
asking for comparable changes for their industry, resulting in
more fish to commercial and sports fishermen, she read. She
indicated that if HB 368 is enacted, she would like more
equality in the expenditure for sport-catch species for king and
coho salmon because currently pink and chum salmon are primarily
targeted. She remarked that she'd like it [applied equally].
CO-CHAIR MASEK continued to read, "Currently, approximately 40
percent of Alaska's entire salmon harvest is enhanced fish."
She continued, "Salmon are also produced that are taken by
resident and nonresident sports fishermen and utilized in the
personal use fisheries." From that perspective, she said,
favorable financing rates would be a normal business practice.
She indicated she is a cosponsor of HB 368. She mentioned that
she would like to move HB 368 out of committee because the bill
could help in all parameters of fishing.
CO-CHAIR SCALZI said the amount of fish that goes to sport and
personal use is in excess of a substantial amount that is paid
for through the "commercial fisheries enhancement pact." He
said it's very beneficial to both sport and personal use, as
well as commercial use, even though it's paid for out of the
revenue through the enhancement pact.
Number 1745
REPRESENTATIVE McGUIRE moved to report CSHB 368(FSH) out of
committee with individual recommendations and the accompanying
zero fiscal note. There being no objection, CSHB 368(FSH) was
moved out of the House Resources Standing Committee.
CO-CHAIR SCALZI called a brief at-ease at 1:34 p.m., which
lasted until 1:36 p.m. [He turned the gavel over to Co-Chair
Masek.]
HB 376-FISH & GAME IN NAVIGABLE WATERS
Number 1800
CO-CHAIR MASEK announced the next order of business, HOUSE BILL
NO. 376, "An Act relating to management of fish and game in and
on the navigable waters and submerged lands of Alaska."
Number 1815
REPRESENTATIVE SCOTT OGAN, Alaska State Legislature, testified
via teleconference as sponsor of HB 376. He referred to AS
16.020.010 and explained that the state had not assented to
federal control of the Alaska Department of Fish and Game
(ADF&G) and those areas set apart as national bird and wildlife
refuges when Alaska was a U.S. territory. He said legislation
was enacted when Alaska became a state. He said apparently
there was a dispute over control of ADF&G and those areas: the
state wanted to say unequivocally that it didn't assent to
control of those areas. He indicated it was his [prior] change
to have [AS 16.20.010(a) read, as found on page 2, Section 2,
subparagraph (B), of the current bill]: "Glacier Bay National
Park and Preserve or the navigable waters within or adjoining
the park and preserve".
REPRESENTATIVE OGAN noted that a point of contention is still in
the courts; moreover, it's a case the governor has not dropped,
asserting state control of the submerged lands and the resources
in Glacier Bay National Park and Preserve. He recalled that
there was a buyout program in place after the [National] Park
Service (NPS) decided commercial fishing boats were an eyesore
to the cruise ships there, although he suggested it was probably
the opposite: people on cruise ships look outward and don't
realize how obtrusive [their ships] are. Commercial fishing was
deemed an inappropriate activity in Glacier Bay, he noted. He
mentioned that the bill was passed at that time and was widely
supported.
Number 1992
REPRESENTATIVE OGAN remarked that the situation is interesting
because the governor didn't pursue the lawsuit in John v. United
States [known as the Katie John case] to the U.S. Supreme Court,
even though he'd previously said no governor of any state should
ever voluntarily relinquish authority back to the federal
government, and that he believed it was his "clear
responsibility, even in the face of a difficult political
battle, to vigorously defend this important aspect of state
sovereignty."
REPRESENTATIVE OGAN said the federal government, through the
reserved water rights doctrine, has taken over management of
subsistence fishing in state sovereign waters. He referred to
the Totemoff case and said the state supreme court unanimously
ruled that submerged land gives ownership of title to and
management powers over lands beneath navigable waters of Alaska,
navigable waters themselves, and fish and other marine life
located in Alaska's navigable waters. Moreover, navigable
waters are generally not public lands under the Alaska National
Interest Lands Conservation Act (ANILCA).
Number 2188
REPRESENTATIVE OGAN said the [federal] Submerged Lands Act of
1953 specifically gives the state authority over fish and
animals in navigable waters and precludes [navigational]
servitude or reserved rights from being used to erode that
authority. He said [navigational] servitude and reserved water
rights are not interests to which title can be held. He offered
his understanding that both servitude and reserved water rights
are limited interests, and do not give the federal government
power over navigable reserved waters unrelated to those areas.
REPRESENTATIVE OGAN offered his understanding that the Alaska
Supreme Court is not bound by decisions of federal courts other
than the U.S. Supreme Court on questions of federal law. He
said [the state] has the right to manage its resources. He said
the Submerged Lands Act was mentioned in the Statehood Act, and
it was mentioned that Alaska was admitted to [statehood] on an
equal footing with the rest of the states; this included the
1953 Submerged Lands Act, which gave to the states fee-simple
title [to] submerged lands and the right to control the
resources within those submerged lands. Referring to a
Submerged Lands Act handout he'd provided, Representative Ogan
read from a portion that said, "... the U.S. releases and
relinquishes to the states all rights, title and interest it may
have, unless otherwise reserved, in lands, improvements and
natural resources beneath or within the navigable waters".
Number 2269
REPRESENTATIVE OGAN mentioned a case in which [U.S. Supreme
Court] Justice Sandra Day O'Connor wrote that the state has a
right to control fishing. He explained that Section 1 [of HB
376] has a [number] of legislative findings; Section 2, in
addition to the other areas, says [the state] doesn't assent to
federal control and lists the navigable waters and submerged
lands; and Section 3 talks about various findings and recognizes
that the state hasn't assented to federal control and that the
federal government cannot commandeer the lawmaking processes of
the state to compel the state to enact and enforce a federal
regulatory program. Indicating there is case law from the U.S.
Supreme Court, he said this section also mentions that it
doesn't prohibit the agency or an agent from taking an action
necessary to protect life or property, commenting on federal
statutes or regulations, or participating and cooperating with
the established programs.
REPRESENTATIVE OGAN, in response to Representative McGuire,
clarified that the bill adds a new subsection in Section 3;
however, it doesn't change Title 16 on those other four
[paragraphs in AS 16.20.010(b)]. Aside from Section 2, nothing
eliminates existing statute.
Number 2491
REPRESENTATIVE KAPSNER mentioned the constitutional mandate to
manage for sustained yield. She asked Representative Ogan if he
thought it irresponsible to prohibit state managers from working
with federal managers.
REPRESENTATIVE OGAN said the problem is that the [state] doesn't
have the ability to manage those resources for subsistence use
because the [federal government] has taken over. He said the
federal government doesn't have an obligation to manage on a
sustained yield [basis], and prior to statehood the federal
government didn't manage for sustained yield. He indicated the
federal government would be prohibited from compelling the state
to enact and enforce a federal regulatory program. He mentioned
that he thought ADF&G had a clear responsibility to [monitor the
federal government's management of resources]. He suggested
ADF&G can comment on proposed federal statutes and regulations.
He added, "It just is saying that we don't assent to their
control; it's a matter of fundamental state sovereignty."
REPRESENTATIVE KAPSNER offered her understanding that federal
law preempts any state law, across the board.
REPRESENTATIVE OGAN replied that federal law didn't preempt
state law; furthermore, it gave the state the right to manage
its resources. Moreover, he said the Alaska Supreme Court
unanimously agreed to that position in the Totemoff case, and
there is a mandate from the [Alaska] Supreme Court that the
state, not the federal government, manage its resources.
Representative Ogan said the [Alaska] Supreme Court has [ruled]
that the state is not obligated to follow any court ruling on
the issue other than [from] the United States Supreme Court. He
said when the governor decided to "cede sovereign authority" to
the federal government [by not pursuing the lawsuit], he ignored
the constitution, the state's sovereignty, and the [Alaska]
Supreme Court.
Number 2666
REPRESENTATIVE KERTTULA asked if the goal is to regain state
management.
REPRESENTATIVE OGAN said, "Sure." He mentioned the governor's
statements about not voluntarily relinquishing authority and why
he had to appeal the case.
REPRESENTATIVE KERTTULA suggested the state should be monitoring
and participating [with the federal government's management of
resources] to get as much information as possible. She
expressed concern that the bill might limit that ability.
REPRESENTATIVE OGAN said he didn't believe that was the
intention of HB 376. The bill would allow the state to have its
biologists [monitor] the federal [government], comment on
proposed federal statutes and regulations, and still fund the
positions. Representative Ogan acknowledged that HB 376 is
basically posturing until the matter is settled in court. He
pointed out that this had been done [regarding] Glacier Bay.
REPRESENTATIVE KERTTULA reiterated her concern about the
language of HB 376.
REPRESENTATIVE KAPSNER pointed out that Representative Ogan's
answer to a previous question had made it sound as though the
reason the state has federal management is because the governor
didn't appeal the Katie John case. Representative Kapsner
suggested the reason the state has federal management, however,
is because the state has failed to comply with ANILCA. The
federal government allowed the state three moratoriums so it
could come into compliance, but the legislature refused, she
recalled. She mentioned a legislative remedy of putting a vote
to the public to change the constitution to come into compliance
with ANILCA. She said the court is not the solution to the
subsistence [issue].
Number 2836
REPRESENTATIVE OGAN referred to the Totemoff case, which he said
[found] that navigable waters are generally not public lands
under ANILCA. He said the Submerged Lands Act of 1953
specifically gave state authority over fish and animals in
navigable waters; moreover, it mentioned navigational servitude
or reserved rights. He mentioned that the federal government
has maintained that it has the right to manage fish up to three
miles [from the coastline], which the Alaska Supreme Court found
to be incorrect. Furthermore, the Alaska Supreme Court is not
bound by decisions of federal courts other than the U.S. Supreme
Court on questions of federal law, he suggested.
REPRESENTATIVE OGAN offered his belief that HB 376 is consistent
with the Alaska Supreme Court's ruling. He offered his opinion
that the governor's actions have made Alaska a second-class
state, not on equal footing with the other states of the Union.
Representative Ogan said 14 other states had filed amicus curiae
briefs on [Alaska's] behalf in the John v. United States suit
because they worry about their sovereign rights as states to
manage their resources. This sets a precedent that goes far
beyond the State of Alaska, he said. He mentioned remarks from
[U.S.] Senator Murkowski about appealing the John v. United
States case. Representative Ogan again suggested that this
issue is not about subsistence, but about Alaska's sovereign
rights as a state.
TAPE 02-12 SIDE B
Number 2990
REPRESENTATIVE FATE indicated his reason for cosponsoring HB 376
was because there had been no adjudication by the [Alaska]
Supreme Court in contract law. He said the Submerged Lands Act
of 1953 is incorporated within the Statehood Act and the compact
that the people of Alaska signed saying that compact is no
longer valid. He agreed that ordinarily congressional laws
supersede state law, but not contract law. To get the [issue]
adjudicated by a court of the land is probably going to be the
only way to settle the issue of the Submerged Lands Act, he
suggested. He said the [Submerged Lands Act] was [related] not
to subsistence, but rather to the sovereign right to manage
navigable waterways. He indicated there hasn't been harmony
between the federal government [and the state] as it endeavors
to manage a state waterway and [ADF&G].
REPRESENTATIVE OGAN mentioned that he thought the federal
government didn't honor the deals made at statehood.
Number 2842
DICK BISHOP, Alaska Outdoor Council (AOC), testified via
teleconference, informing the committee that AOC supports HB
376. Moreover, he said AOC believes it is important to
reemphasize what the Alaska Supreme Court has already
enunciated: the state's authority over navigable waters and
submerged lands, and the management of resources found there.
He said AOC appreciates the recognition of the state's public-
trust responsibility for renewable resources. However, it's
also important to ensure that the state, in its efforts to be a
good neighbor and to ensure sound conservation of resources,
does not contribute to the perception of federal authority where
none exists, he said. This bill addresses that potential
problem while also citing federal laws that authorize legitimate
federal authority. Therefore, AOC urges the passage of HB 376
to ensure the authorities are clear and that the state's
authority and responsibility is clear and is followed, he said.
MR. BISHOP told members he doesn't believe federal law
supersedes state law in all cases. There are limitations that
vary from federal law to federal law; for example, it has often
been cited that the federal government has management authority
for fish and game on public lands through the property clause,
but that's not necessarily the case unless Congress has
specifically said that should be the case. Another example is
that nowhere in ANILCA was that specific authority given to the
federal government by Congress; consequently, that's still an
open question, even though it has not been adequately pursued in
court, he told members.
Number 2703
REPRESENTATIVE OGAN asked Mr. Bishop if he was aware of the case
of New York v. United States. He read from the case [original
text provided]:
This case instead concerns the circumstances under
which Congress may use the States as implements of
regulation; that is, whether Congress may direct or
otherwise motivate the States to regulate in a
particular field or a particular way. Our cases have
established a few principles that guide our resolution
of the issue. As an initial matter, Congress may not
simply "commandee[r] the legislative processes of the
States by directly compelling them to enact and
enforce a federal regulatory program." Hodel v.
Virginia Surface Mining & Reclamation Assn., Inc., 452
U.S. 264, 288 (1981).
MR. BISHOP indicated he wasn't familiar with the aforementioned
case. He said it's very reassuring that there are limitations
on the reach of the federal government in compelling states to
do things they might not otherwise be willing to do. He said it
is a good example that the federal government does not, in all
cases, have the option of preempting the state's authority. He
mentioned that ownership, authority, and responsibility for
management of navigable waters have been granted to the states
and upheld until the circumstances in Alaska. Mr. Bishop spoke
about limitations and lack of clarity on the relative
authorities of federal and state governments in the management
of fish and wildlife and renewable resources in the state.
Number 2565
CO-CHAIR MASEK mentioned the Submerged Lands Act. She spoke
about the intent of Congress, the appeal to the Ninth Circuit
Court, and the impact on the state. She asked if [HB 376] would
clear up [the issue].
MR. BISHOP said he thought it would clear it up by laying out
the matters of law and the relative authorities; however, it
won't clear up what authority the state will be able to retain
and what authority the federal government will attempt to
assume. What the federal government assumes and what it chooses
to do under the [John v. United States] ruling will be
consistent with the ruling, he said. He indicated that the
federal government is not going to subside in its position
because of the passage of HB 376. It is an important expression
of a recognition of the state's sovereignty with regard to the
ownership, authority, and responsibility over navigable waters
and submerged lands, he concluded.
Number 2463
CO-CHAIR MASEK referred to a set of documents in the committee
packet, the first page of which was headed, "Alaska Digest Email
News; September 3-9, 2001; Murkowski Laments State Decision Not
To Appeal 9th Circuit Case." She offered an excerpt attributed
to U.S. Senator Murkowski, which read:
"Even if we succeed in passing a constitutional
amendment to protect subsistence and solve the
subsistence problem, which I have supported and will
continue to work for, Alaskans will not be afforded
the chance to recover control over state waters, which
the Governor has chosen to give away."
MR. BISHOP offered his belief that if the state were to adopt a
rural subsistence-priority amendment in its constitution, it
wouldn't solve the dilemma relating to state sovereignty in
navigable waters. Moreover, it would address the ability of the
state to assume the responsibility for administering the federal
law, but wouldn't return management to the State of Alaska, he
said. The state would be obligated to implement the terms of
federal law, and the federal court would enforce them. He said
that was the situation that existed from 1986 to 1989, when the
state was in conformity with the federal law. If the state were
to come into conformity with the federal subsistence law [now],
then the same terms would dictate the state's operation
[regarding] the state's implementation of that federal law. It
leaves the issue of authority of the state over navigable waters
unresolved, he added.
Number 2314
REPRESENTATIVE KERTTULA referred to John v. United States and
offered her understanding that the court had said if the state
followed ANILCA and changed the state constitution, then the
state would regain jurisdiction over navigable waters.
MR. BISHOP said he didn't recall that particular passage.
However, if that was [the case], then perhaps the issue is that
the state would be able to implement the federal law with regard
to the regulation of subsistence uses. It wouldn't necessarily
affect the state's options or autonomy in deciding other
questions with regard to the use of navigable waters, he said.
He asked how it would relate to timber harvests, tourism, or
mining, for example. Mr. Bishop said if those are federal
reserved waters and the authority of the federal government
remains unchallenged, then the federal policies would prevail on
what can and cannot be done, regardless of what the state
thinks. If the rural priority [were] in the constitution, then
the state would be compelled to administer subsistence
regulations consistent with federal law, he said.
Number 2212
CO-CHAIR MASEK mentioned the issue of judicial oversight
extending toward the navigable waters.
REPRESENTATIVE KERTTULA referred to page 704 of John v. United
States. She reiterated her point that the court said [the
state] could resume management of subsistence uses on public
lands including navigable waters. She added [referring to the
Katie John case]:
It never reached any of the other issues, and ... I
think that this is segueing over into some kind of an
argument that just doesn't exist anymore. ... This
was a subsistence case; it's a subsistence argument.
The court may have reached somewhat to get there, but
that's what it concerns. So, just from my standpoint,
I am not as concerned, as we seem to be building this
concern up about other issues.
Number 2161
MR. BISHOP said he couldn't disagree more. He offered his
belief that clearly the federal jurisdiction on reserved waters
under the John v. United States decision goes far beyond the
issue of the provision for subsistence uses. Furthermore, he
suggested, the court failed to recognize that in making that
statement, and doesn't have a clue about what is or isn't state
management. When [the court] said fish and game [management]
would return to the state, that is simply not the case; it's not
atypical of the Ninth Circuit Court to make that kind of leap in
logic, he contended.
REPRESENTATIVE OGAN said the Ninth Circuit Court can say what it
wants, but the [Alaska] Supreme Court said [Alaska] is not bound
by those decisions. He mentioned that reserved water rights are
precluded from being used to erode that authority, and that the
[Alaska] Supreme Court cannot be ignored. He added, "We have
this authority, and that's all this bill does."
Number 1999
CO-CHAIR MASEK indicated HB 376 would be held for further
consideration.
HB 382-CLEANUP OF ILLEGAL DRUG SITES
Number 1982
CO-CHAIR MASEK announced the next order of business, HOUSE BILL
NO. 382, "An Act relating to the evaluation and cleanup of sites
where certain controlled substances may have been manufactured
or stored."
Number 1971
REPRESENTATIVE GRETCHEN GUESS, Alaska State Legislature, sponsor
of HB 382, told the committee that when an illegal [drug
manufacturing] laboratory is raided in Alaska, law enforcement
sends the residential property owner notice [of the raid] and
removes major contaminants [from the site]. However, there are
no guidelines or any direction for the [property] owner on how
to clean up the site before [another tenant] moves in or the
[property] is sold. There is no penalty if the [property owner]
decides to repaint the walls and rent the property rather than
clean it up. She said there are responsible [property] owners
who want to clean up the sites, but the state doesn't have
guidelines set forth. However, other [property] owners aren't
so responsible and rent the site, even though there could still
be [drug residue] on the walls and in the carpet, which could
pose a health hazard to [an occupant].
Number 1798
REPRESENTATIVE GUESS turned attention to Section 2 and said it
would provide direction regarding the cleanup of an [illegal
drug] site. The law enforcement agency would notify the
property owner and the department, and the owner would be
provided with guidelines for cleaning up the site.
REPRESENTATIVE GUESS pointed out that the [cleanup] would be the
responsibility of the property owner, and the state wouldn't pay
any part of that. The bill stipulates that if the site is to be
used for residential purposes, then it must be cleaned up. She
said the [property] owner has the choice not to clean up, but
the site cannot be occupied or sold until it is done.
REPRESENTATIVE GUESS turned attention to [proposed AS 46.03.510]
and said the property has to be determined fit for use before it
can be transferred, sold, leased, or rented. Also, it makes any
current contracts on the property voidable, but it doesn't make
any past contracts voidable, so a mortgage would still be valid,
for example. Property can be sold if written disclosure is made
to the prospective transferee or purchaser that the property has
been determined to be an illegal drug manufacturing site and
hasn't been determined to be fit for use. Furthermore, [under
subsection (c)] a person who knowingly uses, transfers, sells,
leases, rents, or occupies property of [in violation of the
section] is guilty of a class A misdemeanor.
REPRESENTATIVE KERTTULA referred to page 3, lines 21-23, and
asked why the disclosure doesn't accompany the transfer of a
sale document.
REPRESENTATIVE GUESS deferred to Nathan Johnson.
Number 1650
NATHAN JOHNSON, Staff to Representative Gretchen Guess, Alaska
State Legislature, answered that the reason for the
aforementioned provision is because of concern in the real-
estate community about having the disclosure recorded. That
would create a [permanent] record, which some people find
objectionable. He said that was an effort to appease that
concern.
CO-CHAIR MASEK remarked that if the property owner complied,
then it wouldn't be necessary [to record the disclosure].
REPRESENTATIVE GUESS offered that if [the disclosure] was
recorded, it would be a [permanent] record.
REPRESENTATIVE KERTTULA asked if sale of the property would be
permitted if the property wasn't cleaned up. She also inquired
whether there would still be protection for the buyer.
REPRESENTATIVE GUESS answered in the affirmative. She turned
attention to [proposed AS 45.03.520] and said the Department of
Environmental Conservation (DEC) would establish procedures for
testing the property and establish a list of laboratories in the
state that have the capacity to perform the testing procedures.
This is to ensure that the property owner uses a laboratory that
can perform the appropriate testing of the property.
Number 1455
REPRESENTATIVE GUESS brought attention to [proposed AS
46.03.530] and mentioned the four substances [lead, mercury,
methamphetamines, and volatile organic compounds] that are known
to cause health hazards, and that the department would set forth
in regulation the levels required to be met for [determining]
fitness. She said this was put into regulation, rather than
into statute, because science constantly changes regarding what
levels are appropriate. She mentioned concerns that there are
many more chemicals which are harmful, and that there's not an
easy way for those to be [included] in regulation or statute.
REPRESENTATIVE GUESS highlighted [proposed AS 46.03.540]. She
told members it is important that the guidelines are followed,
not only so the [site] is safely cleaned up, but also so that
the hazardous material is disposed of correctly. She mentioned
that disposal has been more of a problem than anything else.
Number 1358
REPRESENTATIVE GUESS turned attention to [proposed AS 46.03.550]
and indicated the determination would be made by the department
regarding whether a property would be fit for use if the owner
had submitted satisfactory evidence to the department that the
property was cleaned up according to the guidelines, that
testing had been performed, and that it had been determined that
the chemical levels meet the requirements.
REPRESENTATIVE GUESS brought attention to [proposed AS
46.03.560] and indicated the section sets forth the number of
days from the time the property owner receives notice that the
owner has to comply. Regarding [proposed AS 46.03.570], she
indicated the section sets forth the duties of the department
and regulations.
REPRESENTATIVE GUESS mentioned an outline that highlights the
general impacts of the illegal [manufacturing] labs and the
health [risks] involved, especially in regard to lead and
mercury. She addressed questions that she'd received regarding
HB 382. The first question asked was why the [property owner]
isn't [required] to clean up the [site] if the owner isn't going
to [rent or sell] it. Her response was that the levels of
[hazardous chemicals] are harmful if there is an occupant
[living in the site], but not if it is vacant. She added that
it seemed "overreaching" to tell the [property owner] that
he/she had to [clean up the site if it was vacant]. She added
that there is no disclosure [required] at this time.
Number 1281
REPRESENTATIVE GUESS said there were lots of questions on why
DEC [would be the administering department]. She explained that
in states with similar statutes, the responsible department is
usually health and social services. However, it would be more
expensive to have [a department other than DEC administer the
provision] because DEC already has the equipment and the
procedures in place. The fiscal note reflects a cost of $10,000
to [initiate the program] and $2,000 a year [in expenses]
thereafter. She added that putting the responsibility with [the
Department of Health and Social Services (DHSS)] "would have
been a whole new position and department, which didn't seem very
responsible."
REPRESENTATIVE GUESS reported that Oregon and Washington State
have [addressed this issue]. Washington [State] is finding that
it should have [addressed] this at a state level [rather than] a
local level. Alaska has many small communities, she noted, and
[it doesn't make sense] to force the local government to have
the expertise; it is more efficiently done at a state level.
REPRESENTATIVE GUESS highlighted letters of support from the
Anchorage Police Department, the Alaska State Troopers, and
[municipalities]. She mentioned that Alaska State Troopers have
been put in the position of telling a property owner there has
been an illegal [manufacturing] site, but they haven't been able
to direct the owner anywhere to ensure the site is cleaned up.
Number 1130
REPRESENTATIVE McGUIRE asked if there is any recourse for a
[property owner] to civilly recover the [cost] of cleaning up
the site.
REPRESENTATIVE GUESS answered that she hadn't addressed that
issue. She said her intent was that the option should be open.
She said she doesn't think it is the government's
responsibility; it's the [owner's] responsibility because it is
that person's property. She said it is costly to test and clean
up, and that she has no problem with [recovering those] costs.
She mentioned that she is unsure whether [a method for
recovering costs] should be included in the bill, but said she
is willing to look into it and ensure that the option is
available.
Number 0959
MR. JOHNSON suggested that almost every existing housing lease
would cover that situation and give the [property owner] civil
recourse.
REPRESENTATIVE McGUIRE agreed that most leases would [provide an
avenue] for civil recourse. She said, however, she would like
to have a specific right of action in the bill for the property
owner to recover those actual fees and costs that incur.
REPRESENTATIVE GUESS indicated she would address the [cost-
recovery] issue.
Number 0860
CO-CHAIR SCALZI asked if the bill was in the current committee -
rather than the House Health, Education and Social Services
Standing Committee - because DEC would be the [administering
entity].
REPRESENTATIVE GUESS answered in the affirmative.
Number 0800
REPRESENTATIVE KAPSNER requested an estimate of the number of
[illegal manufacturing] labs located in rural Alaska.
REPRESENTATIVE GUESS referred the question to the Alaska State
Troopers. She mentioned that the [illegal manufacturing labs]
are a problem in Anchorage; because of aggressive law
enforcement efforts in that area, the labs are moving toward the
Matanuska-Susitna area and Kenai. She said according to the
Alaska State Troopers, there are some labs in Ketchikan. She
referred to the chemicals involved in illegal labs and the
transportation needed. Fortunately, she said, there have not
been [illegal labs] found in rural Alaska. She also mentioned
that there would be additional costs for the testing to be done
in rural areas.
CO-CHAIR MASEK referred to an article from the Frontiersman in
Wasilla, dated February 15, 2002, which said Palmer's district
attorney office has received 54 new "meth" [methamphetamine]
cases to prosecute this quarter, compared to Anchorage's 57 new
cases for the same period. She indicated the problem is growing
in that region.
REPRESENTATIVE KAPSNER mentioned a case involving a
[methamphetamine] lab found in Juneau in a duplex. She said the
neighboring tenants' infant had experienced [increased] sickness
[during that time]. She asked what the recourse was for the
parent of a young child who has sustained health problems
because of a methamphetamine lab.
REPRESENTATIVE GUESS offered her understanding that there
wouldn't be recourse under HB 382 because it only addresses
cleanup of the site. She asked [Mr. Johnson]: If there were an
illegal manufacturing lab in a duplex, could the other side
still be rented out?
Number 0583
MR. JOHNSON answered that it would be at the discretion of the
police officers involved, depending on the heating system; if
there was a forced air system, for example, the chemicals could
be spread throughout the entire duplex. Mr. Johnson also said
that in terms of recourse, HB 382 does address it. He mentioned
that other states have worked on legislation specifically to
address [illegal manufacturing labs'] effects on children and to
increase penalties, which could be considered in future
legislation.
Number 0534
REPRESENTATIVE FATE referred to AS 46.03.530 and asked why
asbestos wasn't included in the [bill].
REPRESENTATIVE GUESS indicated asbestos isn't a chemical used in
manufacturing illegal drugs.
REPRESENTATIVE FATE said asbestos is used when there is a large
amount of heat in a specific area; although asbestos hasn't been
used in quite some time, it is readily available. Moreover,
asbestos used in those labs is usually secondhand, which is more
dangerous, he suggested.
REPRESENTATIVE GUESS deferred to Mr. Johnson.
MR. JOHNSON said none of the other states [HB 382 was modeled
after] had a problem with asbestos at methamphetamine lab sites.
He added that although it might exist at some sites, this [issue
addressed in the bill] relates to specific things used in
methamphetamine labs only, because "we don't want people ... to
feel as though, as we come for a drug lab, that we're looking to
address other shortcomings of their property."
REPRESENTATIVE GUESS referred back to Representative Fate's
question. She said the [specific language] referring to the
four substances [was included] because those are the known four
[substances used in drug labs]. She indicated her two proposed
solutions [for later changes as more information becomes
available] were these: to simply give DEC the authority to add
in regulation other substances known to be harmful; or to have
the legislature, after a year, evaluate whether there should be
a change [in statute reflecting such regulations implemented by
the DEC]. She said she had amendments drawn up for both
scenarios. She told Representative Fate the problem is that
there could be other things that are used but which aren't
specified in the bill, "and we need to grapple with that."
REPRESENTATIVE FATE said asbestos is not general and is illegal
to have in a public facility. It is not cumulative like lead,
[which is included in the bill], he said. He offered his view
that asbestos is much more dangerous than lead. He indicated he
would like asbestos to be added to the statute.
REPRESENTATIVE GUESS indicated she wouldn't object to amending
HB 382 to include asbestos.
Number 0201
REPRESENTATIVE STEVENS mentioned that [HB 382] is not intended
to correct conditions in homes that haven't had illegal drug
manufacturing. He offered his view that there are probably
rules elsewhere which require that homes be safe.
REPRESENTATIVE FATE offered his belief that usually asbestos
isn't found in the home; it is brought in for protection against
the high [temperature] necessary to manufacture [drugs].
Number 0077
REPRESENTATIVE CHENAULT mentioned that older-style linoleum
found in some homes is laced with asbestos. He also said he has
concerns that some of the aforementioned chemicals are
potentially more dangerous than the four [substances listed in
the statute]. He suggested that the scope of the bill be kept
to a methamphetamine [lab] scenario.
CO-CHAIR MASEK remarked that she thought the [bill's scope was
being broadened] too much.
TAPE 02-13, SIDE A
Number 0001
REPRESENTATIVE FATE proposed a conceptual amendment, to have the
language read, "any harmful chemical or substance associated
with methamphetamine production".
MR. JOHNSON suggested "clandestine" lab, because although this
legislation largely addresses meth labs, other [drug labs need
to be included]. He said the two amendments [mentioned by
Representative Guess] would open up the issue for DEC to
consider and add chemicals and substances in the future.
CO-CHAIR MASEK referred to page 4 [lines 14-21], standard for
determining fitness, and said it was spelled out clearly and
didn't require more items to be added. What is already listed
should deal with the bill's intent, to ensure that these
chemicals are going to be cleaned up and taken away, so that
whether it's a house or an apartment, it would be cleaned up,
ready, and safe for someone to rent. She asked that
Representative [Fate] withdraw his [conceptual amendment].
Number 0275
REPRESENTATIVE FATE indicated the conceptual amendment was
withdrawn.
Number 0304
JULIA GRIMES, Lieutenant, Alaska State Troopers, testified via
teleconference in support of HB 382. She said clandestine
methamphetamine labs are a dangerous problem all over the United
States and, as with every drug trend, have reached Alaska. Law
enforcement in Alaska has heeded the experiences of states in
the Northwest and Midwest, taking an aggressive stance toward
detection and eradication of meth labs, and prosecuting suspects
found to be associated with them. She explained that because of
that aggressive stance, the number in the state dropped from 50
labs in year 2000 to 21 labs in year 2001, based on statistics
from the annual drug report.
MS. GRIMES said detecting, eradicating, and prosecution are only
a part of the [solution]; she feels [Alaska] has an obligation
to be equally aggressive in evaluating how harmful the sites are
once they are vacated by law enforcement officers and to protect
the health of innocent [people] seeking [a residence]. She
said, "We would just support this bill, and see it as being
another aggressive and progressive way to keep from getting
behind the eight ball, if you will, in a problem that can easily
overrun an area, and a dangerous problem."
Number 0526
TIM ROGERS, Legislative Program Coordinator, Municipality of
Anchorage, testified via teleconference. He told the committee
[illegal manufacturing laboratories] are an increasing problem
throughout Alaska that needs to be addressed. He said the
belief is that [HB 382] sets up a very good process to ensure
that properties are made safe for future tenants. Despite added
cost to rental property owners, he said the belief is that the
safety of the future definitely outweighs the added cost. He
concluded, "We commend this bill to you for passage."
Number 0597
REPRESENTATIVE FATE asked if lead and mercury are part of the
manufacturing process of these [types of] drugs.
Number 0605
KURT KORNCHUCK, Detective, Anchorage Police Department (APD),
via teleconference, answered that mercuric chloride and lead
acetate are essential ingredients in a process for manufacturing
methamphetamine. He mentioned that asbestos is used in large-
scale drug manufacturing labs, but hasn't been seen in Alaska
since 1996. Most of the heating is done on small, portable
electric burners with glassware, rather than a commercial-type
reaction vessel.
REPRESENTATIVE FATE asked if a [property owner] would be forced
to strip the walls if lead were found on them.. He also asked
whether the background level is taken into consideration with
regard t the lead.
MR. KORNCHUCK said the [question] falls beyond [APD's] level of
expertise. He added:
We're very thankful for this kind of bill because
we're a little frustrated when we go in. Of course,
we're wearing all of the protective gear, protective
suits, breathing apparatus, rubber boots, and gloves.
And when we leave, we simply notify the landlord and
post the property.
MR. KORNCHUCK said he didn't know what the testing procedures
entail. He mentioned that [illegal drug labs] are a very big
problem. He said when he'd worked on [enforcement relating to]
clandestine laboratories in California, some local health
departments would come out [to the site] and take samples so
they could have an idea of the manufacturing process and what
they should look for when they went back in, to give a piece of
property a clean bill of health.
Number 0810
MR. KORNCHUCK concluded by saying HB 382 is outstanding
legislation that he was very surprised and happy to see come
forth. He said [HB 382] provides a tremendous benefit for
people with children who unknowingly rent [these sites].
CO-CHAIR MASEK asked whether the law enforcement officers who
[raid] meth labs are in the [federal Drug Enforcement Agency
(DEA)].
MR. KORNCHUCK answered that specialized, trained officers
including state troopers, local police officers, and federal
investigators go through one-week training in which they learn
industrial-hygiene techniques, proper use of equipment, what to
look for, and how to be safe. Only those who are certified to
enter clandestine drug laboratories are allowed to participate
in the raids and the cleanup process. In addition, a highly
specialized group of individuals in the state get together for
annual certification every year and talk about the new drug
trends.
CO-CHAIR MASEK remarked that Section 2 requires testing of
property before continued use if a law enforcement officer has
determined that the property was an illegal drug manufacturing
or storage site.
Number 1021
JANICE ADAIR, Director, Division of Environmental Health,
Department of Environmental Conservation, testified via
teleconference, relating her understanding that there is a
possibility of false positives for lead and mercury. There are
guidelines for laboratories to use to recognize that
possibility, she said.
Number 1087
REPRESENTATIVE GUESS offered Amendment 1, which read:
Page 4, line 22-24, following "Sec.46.03.540.
Decontamination requirements. (a) If"
Delete "testing under AS 46.46.03.520 shows the
presence of a substance that exceeds the limits set by
regulations adopted under AS 46.03.530 and"
Page 4, line 25, following "property,"
Insert "for which a notice has been issued under
AS 46.03.500,"
REPRESENTATIVE GUESS explained that if property is found to be
the site of an illegal manufacturing lab, and if the property
owner knows he/she wants to clean up the property, Amendment 1
would allow the property owner to skip initial testing of the
property, clean up the property in accordance with the
guidelines, and then have the property tested to ensure that the
standards have been met. This would save the owner the expense
of testing the property twice.
Number 1220
REPRESENTATIVE FATE moved that the committee adopt the foregoing
as Amendment 1. There being no objection, Amendment 1 was
adopted.
Number 1248
REPRESENTATIVE GUESS again addressed the subject of new
substances that might be used in illegal drug manufacturing.
She offered two slightly different amendments [discussed
previously] that would broaden the language in [AS 46.03.530]
and allow the department to [periodically] review information
related to illegal drug manufacturing, identify hazardous
substances used in the manufacturing, and add [regulations].
Representative Guess mentioned concern among law enforcement
officers about limiting the number of substances included in
this section.
[There was an at-ease from 3:06 p.m. to 3:08 p.m., during which
the two amendments mentioned by Representative Guess were
withdrawn.]
CO-CHAIR MASEK explained on the record that she thought the
amendments were too broad and shouldn't be included. She said
the bill already identifies hazardous chemicals associated with
illegal manufacturing laboratories. She therefore had asked
that the proposed amendments be recalled.
Number 1492
REPRESENTATIVE KERTTULA began discussion of conceptual Amendment
2. Referring to page 3, lines 4-7, she asked what the property
owner's recourse would be when a lease is voided because of
illegal drug manufacturing. Representative Kerttula suggested
amending paragraph 1, line 8, to include "or lease" after
"promissory note".
MR. JOHNSON said it would be beneficial because if the renter
has a clandestine lab, then the lease [can be voided]; moreover,
it would provide the property owner recourse for the voided
lease.
Number 1650
REPRESENTATIVE GREEN asked why only the renter would be excluded
and not the user or lessee.
REPRESENTATIVE KERTTULA pointed out that subsection (b) covers
the transfer and sale. She said including the word "lease"
would probably cover [Representative Green's concern]. She
indicated the amendment should be conceptual so the correct
language can be used to provide protection for the landlord.
Number 1759
REPRESENTATIVE KERTTULA moved to adopt the foregoing as
conceptual Amendment 2. There being no objection, conceptual
Amendment 2 was adopted.
Number 1772
CO-CHAIR MASEK turned attention to the fiscal note for DEC. She
gave a brief synopsis of the fiscal note expenditures. She
indicated operating costs would be $12,000 for FY 2003 and
$2,000 per year thereafter.
Number 1917
REPRESENTATIVE McGUIRE moved to report CSHB 382 [HB 382, as
amended] out of committee with individual recommendations and
the accompanying fiscal note. There being no objection, CSHB
382(RES) was moved out of the House Resources Standing
Committee.
ADJOURNMENT
There being no further business before the committee, the House
Resources Standing Committee meeting was adjourned at 3:20 p.m.
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