Legislature(2007 - 2008)BARNES 124

03/19/2007 01:00 PM House RESOURCES


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= HB 165 BIG GAME GUIDES AND TRANSPORTERS TELECONFERENCED
Moved Out of Committee
+ HB 128 OIL & GAS PRODUCTION TAX: EXPENDITURES TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
+= HB 149 POLLUTANT DISCHARGE PERMITS TELECONFERENCED
Moved CSHB 149(RES) Out of Committee
                    ALASKA STATE LEGISLATURE                                                                                  
               HOUSE RESOURCES STANDING COMMITTEE                                                                             
                         March 19, 2007                                                                                         
                           1:05 p.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Representative Carl Gatto, Co-Chair                                                                                             
Representative Craig Johnson, Co-Chair                                                                                          
Representative Vic Kohring                                                                                                      
Representative Bob Roses                                                                                                        
Representative Paul Seaton                                                                                                      
Representative Peggy Wilson                                                                                                     
Representative Bryce Edgmon                                                                                                     
Representative David Guttenberg                                                                                                 
Representative Scott Kawasaki                                                                                                   
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
All members present                                                                                                             
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                              
HOUSE BILL NO. 165                                                                                                              
"An Act relating  to providing field accommodations  for big game                                                               
hunters."                                                                                                                       
                                                                                                                                
     - MOVED HB 165 OUT OF COMMITTEE                                                                                            
                                                                                                                                
HOUSE BILL NO. 149                                                                                                              
"An  Act  relating   to  the  authority  of   the  Department  of                                                               
Environmental   Conservation  to   require  certain   monitoring,                                                               
sampling,  and  reporting  and to  require  permits  for  certain                                                               
discharges  of pollutants;  relating  to  criminal penalties  for                                                               
violations of the permit program;  and providing for an effective                                                               
date."                                                                                                                          
                                                                                                                                
     - MOVED CSHB 149(RES) OUT OF COMMITTEE                                                                                     
                                                                                                                                
HOUSE BILL NO. 128                                                                                                              
"An Act relating to allowable  lease expenditures for the purpose                                                               
of determining  the production tax value  of oil and gas  for the                                                               
purposes of the oil and gas  production tax; and providing for an                                                               
effective date."                                                                                                                
                                                                                                                                
     - HEARD AND HELD                                                                                                           
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: HB 165                                                                                                                  
SHORT TITLE: BIG GAME GUIDES AND TRANSPORTERS                                                                                   
SPONSOR(s): REPRESENTATIVE(s) LEDOUX                                                                                            
                                                                                                                                
02/28/07       (H)       READ THE FIRST TIME - REFERRALS                                                                        
02/28/07       (H)       RES                                                                                                    
03/12/07       (H)       RES AT 1:00 PM BARNES 124                                                                              
03/12/07       (H)       Heard & Held                                                                                           
03/12/07       (H)       MINUTE(RES)                                                                                            
03/19/07       (H)       RES AT 1:00 PM BARNES 124                                                                              
                                                                                                                                
BILL: HB 149                                                                                                                  
SHORT TITLE: POLLUTANT DISCHARGE PERMITS                                                                                        
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR                                                                                    
                                                                                                                                
02/21/07       (H)       READ THE FIRST TIME - REFERRALS                                                                        
02/21/07       (H)       RES, JUD                                                                                               
03/12/07       (H)       RES AT 1:00 PM BARNES 124                                                                              
03/12/07       (H)       Heard & Held                                                                                           
03/12/07       (H)       MINUTE(RES)                                                                                            
03/19/07       (H)       RES AT 1:00 PM BARNES 124                                                                              
                                                                                                                                
BILL: HB 128                                                                                                                  
SHORT TITLE: OIL & GAS PRODUCTION TAX: EXPENDITURES                                                                             
SPONSOR(s): REPRESENTATIVE(s) OLSON                                                                                             
                                                                                                                                
02/12/07       (H)       READ THE FIRST TIME - REFERRALS                                                                        
02/12/07       (H)       O&G, RES, FIN                                                                                          
02/22/07       (H)       O&G AT 3:00 PM CAPITOL 124                                                                             
02/22/07       (H)       Heard & Held                                                                                           
02/22/07       (H)       MINUTE(O&G)                                                                                            
03/01/07       (H)       O&G AT 3:00 PM CAPITOL 124                                                                             
03/01/07       (H)       Moved CSHB 128(O&G) Out of Committee                                                                   
03/01/07       (H)       MINUTE(O&G)                                                                                            
03/05/07       (H)       O&G RPT CS(O&G) 3DP 1NR                                                                                
03/05/07       (H)       DP: DOOGAN, RAMRAS, OLSON                                                                              
03/05/07       (H)       NR: SAMUELS                                                                                            
03/19/07       (H)       RES AT 1:00 PM BARNES 124                                                                              
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
RICK METZGER                                                                                                                    
Akhiok, Alaska                                                                                                                  
POSITION STATEMENT:  Testified on HB 165.                                                                                       
                                                                                                                                
DICK ROHRER, Member                                                                                                             
Big Game Commercial Services Board                                                                                              
Fairbanks, Alaska                                                                                                               
POSITION STATEMENT:  Explained the process that led to the                                                                      
introduction of HB 165.                                                                                                         
                                                                                                                                
RICK ELLINGSON, Commercial Fisherman                                                                                            
Kodiak, Alaska                                                                                                                  
POSITION STATEMENT:  Testified in support of HB 165.                                                                            
                                                                                                                                
PETE HANNAH                                                                                                                     
Kodiak, Alaska                                                                                                                  
POSITION STATEMENT:  Testified in support of HB 165.                                                                            
                                                                                                                                
CAMERON LEONARD, Senior Assistant Attorney General                                                                              
Natural Resources Section                                                                                                       
Civil Division (Fairbanks)                                                                                                      
Department of Law                                                                                                               
Fairbanks, Alaska                                                                                                               
POSITION STATEMENT:  During hearing of HB 149, answered                                                                         
questions.                                                                                                                      
                                                                                                                                
LYNN TOMICH KENT, Director                                                                                                      
Division of Water                                                                                                               
Department of Environmental Conservation                                                                                        
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  During hearing of HB 149, answered                                                                         
questions.                                                                                                                      
                                                                                                                                
CONRAD JACKSON, Staff                                                                                                           
to Representative Kurt Olson                                                                                                    
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Presented HB 128 on behalf of the sponsor,                                                                 
Representative Olson.                                                                                                           
                                                                                                                                
JONATHON IVERSEN, Director                                                                                                      
Anchorage Office                                                                                                                
Tax Division                                                                                                                    
Department of Revenue                                                                                                           
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Testified in support of HB 128.                                                                            
                                                                                                                                
JONNE SLEMONS, Acting Coordinator                                                                                               
Engineering Integrity Coordinator's Office                                                                                      
Division of Oil & Gas                                                                                                           
Department of Natural Resources                                                                                                 
Anchorage, Alaska                                                                                                               
POSITION  STATEMENT:     During  hearing  of   HB  128,  answered                                                               
questions.                                                                                                                      
                                                                                                                                
ROD MINTZ, Attorney at Law                                                                                                      
K & L Gates                                                                                                                     
Anchorage, Alaska                                                                                                               
POSITION  STATEMENT:     During  hearing  of   HB  128,  answered                                                               
questions in  his capacity as  an attorney for the  Department of                                                               
Revenue  and  the  Department of  Law  regarding  production  tax                                                               
matters.                                                                                                                        
                                                                                                                                
JOHN NORMAN, Commissioner/Chair                                                                                                 
Alaska Oil & Gas Conservation Commission                                                                                        
Department of Administration                                                                                                    
Anchorage, Alaska                                                                                                               
POSITION  STATEMENT:     During  hearing  of   HB  128,  answered                                                               
questions.                                                                                                                      
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
CO-CHAIR  CARL   GATTO  called   the  House   Resources  Standing                                                             
Committee  meeting  to  order at  1:05:31  PM.    Representatives                                                             
Gatto,  Johnson, Edgmon,  Kawasaki,  Kohring,  Wilson, and  Roses                                                               
were present  at the call  to order.   Representatives Guttenberg                                                               
and Seaton arrived as the meeting was in progress.                                                                              
                                                                                                                                
HB 165-BIG GAME GUIDES AND TRANSPORTERS                                                                                       
                                                                                                                                
1:05:58 PM                                                                                                                    
                                                                                                                                
CO-CHAIR GATTO announced  that the first order  of business would                                                               
be  HOUSE BILL  NO.  165,  "An Act  relating  to providing  field                                                               
accommodations for big game hunters."                                                                                           
                                                                                                                                
1:06:25 PM                                                                                                                    
                                                                                                                                
RICK   METZGER   began   by    informing   the   committee   that                                                               
Representative  LeDoux  sponsored  HB  165  in  response  to  his                                                               
urging.  He  related that the language of HB  165 was unanimously                                                               
approved by the Big Game Commercial Services Board.                                                                             
                                                                                                                                
1:07:28 PM                                                                                                                    
                                                                                                                                
DICK  ROHRER, Member,  Big Game  Commercial Services  Board, said                                                               
that he concurs with everything  that Mr. Metzger said during the                                                               
first  hearing of  HB 165.   He  related that  Mr. Metzger  first                                                               
brought his  concerns to the  Big Game Commercial  Services Board                                                               
in December  2006.   At that meeting  all necessary  parties were                                                               
gathered in  the same place to  agree on what was  needed for Mr.                                                               
Metzger  to  rent  his  cabin.     It  was  determined  that  the                                                               
transporter license did not exactly  fit what Mr. Metzger desired                                                               
and that the Big Game  Commercial Services Board could not change                                                               
a  regulation as  it  needed to  be  a statutory  change.   At  a                                                               
[later] teleconference  it was determined  that the  simplest way                                                               
to address the situation was  through an exemption from the Guide                                                               
Transporter  statute requirements  for  those who  own a  private                                                               
cabin, lodge, or house that is located in the field.                                                                            
                                                                                                                                
1:10:15 PM                                                                                                                    
                                                                                                                                
RICK ELLINGSON, Commercial Fisherman,  related his support for HB
165.  Mr. Ellingson  opined that it is tough to  make a living in                                                               
rural Alaska.   He further  opined that the [original]  ruling by                                                               
the Big  Game Commercial  Services Board did  not make  sense and                                                               
thus he  said he was encouraged  with the introduction of  HB 165                                                               
as it will put Mr. Metzger and a few others back in business.                                                                   
                                                                                                                                
1:11:45 PM                                                                                                                    
                                                                                                                                
PETE  HANNAH  informed  the  committee   that  he  is  a  private                                                               
landowner in Kodiak who supports HB 165.                                                                                        
                                                                                                                                
1:12:08 PM                                                                                                                    
                                                                                                                                
CO-CHAIR GATTO, upon  determining no one else  wished to testify,                                                               
closed public testimony.                                                                                                        
                                                                                                                                
1:12:45 PM                                                                                                                    
                                                                                                                                
CO-CHAIR JOHNSON  moved to  report HB 165  out of  committee with                                                               
individual  recommendations and  the  accompanying fiscal  notes.                                                               
There being no objection, it was so ordered.                                                                                    
                                                                                                                                
HB 149-POLLUTANT DISCHARGE PERMITS                                                                                            
                                                                                                                                
1:13:44 PM                                                                                                                    
                                                                                                                                
CO-CHAIR GATTO  announced that the  next order of  business would                                                               
be HOUSE BILL  NO. 149, "An Act relating to  the authority of the                                                               
Department  of  Environmental  Conservation  to  require  certain                                                               
monitoring, sampling,  and reporting  and to require  permits for                                                               
certain discharges of pollutants;  relating to criminal penalties                                                               
for  violations  of the  permit  program;  and providing  for  an                                                               
effective date."                                                                                                                
                                                                                                                                
1:14:36 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GUTTENBERG expressed  concern about  the loss  of                                                               
some of  the research  that might  not be  directly related  to a                                                               
specific project.   He asked if  the loss of research  could be a                                                               
loss to permitting or to other projects in the future.                                                                          
                                                                                                                                
1:16:46 PM                                                                                                                    
                                                                                                                                
CAMERON  LEONARD,  Senior  Assistant  Attorney  General,  Natural                                                               
Resources  Section,  Civil  Division (Fairbanks),  Department  of                                                               
Law, said  that nothing  in HB  149 will  change or  diminish the                                                               
Department  of  Environmental  Conservation's (DEC)  ability  and                                                               
authority  to  do  this  kind   of  water  body  assessments  and                                                               
monitoring.    The  legislation  merely  has  to  do  with  which                                                               
requirements, in connection with  a particular project, belong in                                                               
permits versus outside of the permits.                                                                                          
                                                                                                                                
1:17:24 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GUTTENBERG  maintained that  his concern  is still                                                               
who will do it.                                                                                                                 
                                                                                                                                
1:17:55 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE WILSON  moved that  the committee  adopt Amendment                                                               
1, which read [original punctuation provided]:                                                                                  
                                                                                                                                
     Page 4, line 4:                                                                                                            
          Following "pollutants":                                                                                               
               Delete "listed"                                                                                                  
               Insert "as defined"                                                                                              
                                                                                                                                
     Page 4, line 10:                                                                                                           
          Following "(a)"                                                                                                       
               Insert "and (d)"                                                                                                 
                                                                                                                                
CO-CHAIR  JOHNSON   objected  to   Amendment  1   for  discussion                                                               
purposes.                                                                                                                       
                                                                                                                                
1:18:36 PM                                                                                                                    
                                                                                                                                
MR. LEONARD  stated that the  changes in Amendment 1  are changes                                                               
that  were   reached  after  considerable  discussion   with  the                                                               
Environmental Protection Agency (EPA)  to address their concerns.                                                               
The first change on page 4,  line 4, addresses EPA's request that                                                               
Alaska's  term "waste  material" be  as broad  as the  EPA's term                                                               
"pollutants."   Although Section 6  of the legislation  inserts a                                                               
new subsection that would specify  that, the EPA prefers that the                                                               
language  say, "includes  pollutants as  defined in"  rather than                                                               
"listed in".                                                                                                                    
                                                                                                                                
1:19:37 PM                                                                                                                    
                                                                                                                                
CO-CHAIR GATTO asked  if there is any  possibility that something                                                               
listed would be undefined.                                                                                                      
                                                                                                                                
MR.  LEONARD explained  that  the  EPA wanted  to  be clear  that                                                               
Alaska's  statute included  those  items listed  as  well as  the                                                               
definition.                                                                                                                     
                                                                                                                                
1:20:12 PM                                                                                                                    
                                                                                                                                
MR. LEONARD  then turned  to the second  portion of  Amendment 1,                                                               
which addresses the "state of  mind" necessary to pursue criminal                                                               
violations.  He reminded the  committee that negligent violations                                                               
of the Clean  Water Act (CWA) can give rise  to criminal charges,                                                               
although  they  do  not  have  to.    Alaska's  statutes  require                                                               
criminal negligence under [AS 46.03].790  and thus to satisfy EPA                                                               
and to  show that the state's  program is as stringent  as EPA's,                                                               
new subsection  (i) is inserted.   This new  subsection specifies                                                               
that for  purposes of the Alaska  Pollutant Discharge Elimination                                                               
System  (APDES) program,  simple  negligence is  sufficient.   To                                                               
further clarify,  the language "and  (d)" was added to  Section 8                                                               
in order  to specify  that the new  program under  subsection (i)                                                               
would also apply to oil  spills, subsection (d), since such would                                                               
also be a violation of the CWA.                                                                                                 
                                                                                                                                
1:21:20 PM                                                                                                                    
                                                                                                                                
MR.  LEONARD, in  response to  Representative Guttenberg,  stated                                                               
that the title of Section .790  is "Criminal penalties".  He then                                                               
confirmed  Co-Chair  Gatto's  understanding  that  [statute]  had                                                               
simple  negligence rather  than criminal  negligence in  order to                                                               
cover class  A.   Mr. Leonard further  confirmed that  this would                                                               
also be  under a  class A misdemeanor.   Therefore,  no penalties                                                               
are being changed.                                                                                                              
                                                                                                                                
1:21:57 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SEATON asked  whether  this allows  the state  to                                                               
select  a  gross  negligence standard  or  something  other  than                                                               
simple negligence.                                                                                                              
                                                                                                                                
MR. LEONARD replied  no, adding that a higher state  of mind than                                                               
EPA specifies  cannot be  required in order  to have  the program                                                               
approved.   He  specified  that [APDES]  could  require a  higher                                                               
state  of mind  if the  desire is  to pursue  a felony  charge or                                                               
other higher charge.  For  a simple misdemeanor charge, more than                                                               
negligence  cannot  be required  and  still  meet EPA's  approval                                                               
criteria.                                                                                                                       
                                                                                                                                
1:22:48 PM                                                                                                                    
                                                                                                                                
CO-CHAIR JOHNSON  removed his  objection to  Amendment 1.   There                                                               
being no further objection, Amendment 1 was adopted.                                                                            
                                                                                                                                
1:23:07 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SEATON expressed concern  with regard to the scope                                                               
of things  that will be  left out of  NPDES permits and  thus not                                                               
available to the public.                                                                                                        
                                                                                                                                
1:24:59 PM                                                                                                                    
                                                                                                                                
LYNN  TOMICH KENT,  Director, Division  of  Water, Department  of                                                               
Environmental Conservation  (DEC), related that revisions  to the                                                               
regulatory  water  quality  standards   are  public  noticed  for                                                               
comment,  as   well  as  all   of  the  supporting   science  and                                                               
information  driving  a potential  change  to  the water  quality                                                               
standards.   Therefore, basically anything the  department has is                                                               
available to the public also.                                                                                                   
                                                                                                                                
1:25:39 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SEATON  related his understanding that  one of the                                                               
intents for taking this primacy is  to keep things outside of the                                                               
permit requirement  and thus  it will not  be available  to third                                                               
parties.   Representative Seaton asked if  information will still                                                               
be available to  third parties to propose  additional revision of                                                               
regulations  for those  requirements made  outside the  permit or                                                               
does the  information become public  when the  department decides                                                               
to revise the regulations.                                                                                                      
                                                                                                                                
MR.  LYNN  answered that  any  additional  studies or  additional                                                               
information requested of  the permittee outside the  context of a                                                               
permit is available for public review.                                                                                          
                                                                                                                                
1:27:03 PM                                                                                                                    
                                                                                                                                
CO-CHAIR GATTO,  referring to the  language "into any  waters" on                                                           
page   3,  line   1,  clarified   his   understanding  that   the                                                               
aforementioned language only refers to  surface waters.  He asked                                                               
whether there is any value in adding the word "surface".                                                                        
                                                                                                                                
MR. CAMERON  highlighted that the  full phrase is "waters  of the                                                           
United  States",  which is  the  language  required in  order  to                                                           
ensure  that Alaska's  program is  as  inclusive as  that of  the                                                               
EPA's.   The  EPA  was  concerned, he  related,  that the  former                                                               
language "surface  waters" isn't exactly  the same as  "waters of                                                           
the United States".                                                                                                         
                                                                                                                                
CO-CHAIR  GATTO   questioned  whether  the  language   refers  to                                                               
"surface water" or "subsurface waters."                                                                                         
                                                                                                                                
MR. CAMERON  reminded the committee  that the  federal definition                                                               
of "waters of  the United States" also gets  into wetlands, which                                                       
may or may not be included  in the definition of "surface waters"                                                               
depending upon  one's perspective.   Mr. Cameron opined  that the                                                               
department felt it  had to use the EPA's terminology  in order to                                                               
address their concerns.   In further response  to Co-Chair Gatto,                                                               
Mr. Cameron  related his agreement  that HB 149 allows  the state                                                               
to  deal  with the  federal  government  and take  authority  for                                                               
enforcement as well as the permitting program itself.                                                                           
                                                                                                                                
1:28:45 PM                                                                                                                    
                                                                                                                                
MR.  CAMERON,  in  response to  Representative  Seaton,  said  he                                                               
believes that adopting the federal  definition as was done in the                                                               
regulations and using the terminology  in HB 149 should not cause                                                               
confusion, except  that the federal definition  itself is subject                                                               
to ongoing litigation and recent  decisions from the U.S. Supreme                                                               
Court.  If  one reads the statute and regulations  in tandem, the                                                               
coverage of the program is clear.                                                                                               
                                                                                                                                
1:30:08 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SEATON  related his understanding that  one of the                                                               
reasons  [for HB  149]  is  to have  less  third-party suits  for                                                               
information.   He noted  that the department  does not  track the                                                               
number of lawsuits threatened or filed  and thus it does not know                                                               
how many third-party suits about  information that would not have                                                               
been included under DEC's definition.                                                                                           
                                                                                                                                
REPRESENTATIVE SEATON expressed his concern  that there is a $5.8                                                               
million fiscal  note and the  state is  not gaining.   He related                                                               
his theory that when the state  budget is reduced in future years                                                               
and there  are less [staff] then  it will result in  the delay of                                                               
permit issuance.                                                                                                                
                                                                                                                                
1:31:43 PM                                                                                                                    
                                                                                                                                
MS. KENT  clarified that the  program is envisioned  and budgeted                                                               
as a $4.8 million program.   She pointed out that DEC has already                                                               
been engaged in a permitting program  and working with EPA on its                                                               
permitting program.   The increase to the program  was about $1.5                                                               
million  which was  the incremental  amount that  brought forward                                                               
the full resources necessary to implement NPDES in the state.                                                                   
                                                                                                                                
CO-CHAIR GATTO surmised that it  is not a self-sustaining program                                                               
and thus still needs general funds.                                                                                             
                                                                                                                                
MS.  KENT related  that currently  the program  has full  funding                                                               
under  the base  budget  for  implementation of  the  NPDES.   In                                                               
further  response to  Co-Chair  Gatto, Ms.  Kent  opined that  it                                                               
would  be up  to  the legislature  how the  funding  goes in  the                                                               
future.  She  informed the committee that the  DEC operates other                                                               
programs under a primacy mode and  all the programs that it takes                                                               
on from  the federal  government are  subject to  ongoing federal                                                               
review  to ensure  sufficient funding  to implement  the program.                                                               
She  then confirmed  that [APDES]  is funded  in part  by general                                                               
funds, federal  funds, and fees.   The fees for the  program were                                                               
set by House  Bill 361, which passed a number  of years ago, that                                                               
allows  the department  to charge  for direct  cost of  providing                                                               
services.                                                                                                                       
                                                                                                                                
1:33:49 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SEATON related  his understanding  that the  fees                                                               
are expected to almost double under NPDES primacy.                                                                              
                                                                                                                                
MS.  KENT  replied   yes.    The  department's   direct  cost  of                                                               
implementing the program in which  the department writes, issues,                                                               
and  performs  compliance work  results  in  an increase  in  the                                                               
department's direct costs by a factor of about 1.8.                                                                             
                                                                                                                                
MS.  KENT,   in  response  to  a   question  from  Representative                                                               
Guttenberg,  related   that  at   NPDES  program   approval,  the                                                               
department will need  to revise the existing fees.   The approach                                                               
to the  fees was established by  House Bill 361 and  that remains                                                               
in place.  The  change is in regard to the  direct work that will                                                               
be done that  supports the permitting and  compliance, which will                                                               
cause the fees to increase.                                                                                                     
                                                                                                                                
1:35:49 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GUTTENBERG referred  to the  recommendations from                                                               
the work  group on  page 20  of the NPDES  Workgroup Report.   He                                                               
drew attention  to the following  language, "The  large community                                                               
wastewater workgroup  member does not think  primacy will provide                                                               
significant benefits  to this segment of  the regulated community                                                               
and does not support primacy."  He invited comment.                                                                             
                                                                                                                                
MS.  KENT  informed  the  committee   that  the  large  community                                                               
wastewater  workgroup   member  was  from  the   Municipality  of                                                               
Anchorage (MOA).   She  related that  the permit  for Anchorage's                                                               
facility will remain  with EPA and will not transfer  over to the                                                               
state.  Therefore,  that member did not see any  benefit to NPDES                                                               
primacy  since it  would  not impact  Anchorage's  facility.   In                                                               
further response  to Representative Guttenberg, Ms.  Kent related                                                               
that DEC did  not make any distinction, for  work group purposes,                                                               
regarding what is a large facility versus a small facility.                                                                     
                                                                                                                                
1:37:59 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GUTTENBERG  asked  if  Fairbanks,  Wrangell,  and                                                               
Sitka are covered.                                                                                                              
                                                                                                                                
CO-CHAIR  GATTO   surmised  that  Representative   Guttenberg  is                                                               
interested in  whether there  is a  fixed number  that determines                                                               
coverage or non-coverage.                                                                                                       
                                                                                                                                
MS. KENT  specified that all  of the facilities with  a discharge                                                               
to a surface water body will need a NPDES permit.                                                                               
                                                                                                                                
1:38:44 PM                                                                                                                    
                                                                                                                                
MR.  CAMERON related  that the  situation with  MOA is  unique in                                                               
that  it  enjoys  a  waiver from  the  requirement  of  providing                                                               
secondary treatment for  its domestic wastewater.   The waiver is                                                               
only available  to large municipalities that  discharge to marine                                                               
waters, and  thus none of  the Interior communities  are eligible                                                               
for  that waiver.    In  fact, MOA  may  have  the only  facility                                                               
enjoying that waiver.                                                                                                           
                                                                                                                                
MS. KENT recalled  that four to five communities  qualify for the                                                               
aforementioned  waiver.   She offered  to  provide the  committee                                                               
with a list of those facilities  [enjoying the waiver].  She then                                                               
pointed  out that  those facilities  would still  need to  have a                                                               
NPDES permit,  but the EPA  would maintain the  responsibility to                                                               
issue the permits and ensure  compliance with those permits.  The                                                               
department would continue  to certify those permits  much like it                                                               
already does with existing permits.                                                                                             
                                                                                                                                
1:40:10 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SEATON asked  if  the fees  for those  facilities                                                               
would increase by  a factor of 1.8 or would  those fees remain at                                                               
the level the EPA and the state charge.                                                                                         
                                                                                                                                
MS. KENT responded that the  fees [for the facilities receiving a                                                               
waiver] would be the same as  they are today since those fees are                                                               
based on the department certifying the permit.                                                                                  
                                                                                                                                
1:41:23 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE EDGMON  commented that this  legislation addresses                                                               
an  enormous  issue.   He  then  asked  whether  HB 149  is  all-                                                               
encompassing to the  point that one could say that  it deals with                                                               
the state's wastewater permitting program in its entirety.                                                                      
                                                                                                                                
MS. KENT  answered that  HB 149 is  all-encompassing in  terms of                                                               
wastewater  discharges  to  waters  of the  U.S.    Although  the                                                               
[department]  does  have  other state  authorities  that  require                                                               
those discharging  wastewater to  the surface of  the land  or to                                                               
ground water  to obtain an  authorization from DEC,  that program                                                               
is unaffected by these NPDES primacy efforts.                                                                                   
                                                                                                                                
1:42:33 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  EDGMON,   referring  to   the  March   19,  2007,                                                               
memorandum from Ms.  Kent, highlighted that on the  first page it                                                               
relates that  the CWA allows penalties  of up to $31,500  per day                                                               
per violation.  Using the Pebble  Mine as a backdrop, he inquired                                                               
as to the amount of penalties.                                                                                                  
                                                                                                                                
MR. CAMERON clarified that the  department does not have the same                                                               
penalty  amounts  as  EPA  because  under  the  state's  existing                                                               
statutes  the state  can seek  recovery in  the amount  of up  to                                                               
$100,000 for the initial violation  and not more than $10,000 for                                                               
each day after that.                                                                                                            
                                                                                                                                
REPRESENTATIVE EDGMON  clarified that his question  was regarding                                                               
placing  HB 149  in relation  to a  project of  the scope  of the                                                               
Pebble Mine.                                                                                                                    
                                                                                                                                
1:44:57 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE EDGMON  related his  understanding that  Section 2                                                               
seems  to  be  straightforward   in  regard  to  requiring  prior                                                               
authorization from the  department for the discharge  of solid or                                                               
liquid waste.   However, Section  4(e)(4) includes  the following                                                               
qualifier "if  the discharge  is incidental  to the  activity and                                                               
the activity does  not produce a discharge from  a point source".                                                               
Therefore,  he inquired  as to  why  a similar  qualifier is  not                                                               
included  in Section  2.   He also  inquired as  to whether  [the                                                               
aforementioned qualifying  language] came from the  original work                                                               
group and is in addition to the EPA requirements.                                                                               
                                                                                                                                
MR. CAMERON explained that Section  2(a) is the general statement                                                               
that certain activities require  authorization while Section 4(e)                                                               
specifies  exceptions that  are not  covered under  Section 2(a).                                                               
Section 4(e) specifies those activities  that are exempt from the                                                               
requirement of  obtaining an authorization unless  they result in                                                               
a discharge  into waters  of the U.S.   Therefore,  discharges to                                                               
land or ground water would not need prior state authorization.                                                                  
                                                                                                                                
1:47:27 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE EDGMON inquired as  to who makes the determination                                                               
as to whether the discharge is incidental to the activity.                                                                      
                                                                                                                                
MR. CAMERON said  that someone at DEC would have  a judgment call                                                               
to make.                                                                                                                        
                                                                                                                                
MS.  KENT  related  that  DEC's  permit  staff  would  make  that                                                               
decision when someone  asks whether an authorization  from DEC is                                                               
necessary or from  a public complaint in  which someone questions                                                               
what someone else is doing.                                                                                                     
                                                                                                                                
1:48:12 PM                                                                                                                    
                                                                                                                                
CO-CHAIR GATTO drew  attention to page 2, line  25, which inserts                                                               
the language "publicly owned treatment  works".  He asked if that                                                           
language means only government owned.                                                                                           
                                                                                                                                
MR. CAMERON  pointed out  that it  is a term  that is  defined in                                                               
federal  regulations  to  mean government  owned,  not  privately                                                               
owned.                                                                                                                          
                                                                                                                                
CO-CHAIR GATTO surmised then that  if there was a privately owned                                                               
treatment works that  was larger than a  similar government owned                                                               
treatment works, there is an exclusion.                                                                                         
                                                                                                                                
MR. CAMERON noted his agreement,  and related that the department                                                               
tried to extend the scope  of this exemption to include privately                                                               
owned  treatment   works  that   have  been  authorized   by  the                                                               
department.  However,  that would have gone  beyond the exemption                                                               
under federal law and could not be approved by EPA.                                                                             
                                                                                                                                
1:49:09 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SEATON directed  attention  to page  3, line  19,                                                               
which addresses firing/rifle ranges and  the language:  ", unless                                                           
it results in a discharge into  waters of the United States."  In                                                           
a situation  in which a  skeet or trap  range and the  pellets go                                                               
into the  water, he asked  if these  will be non-exempt  and will                                                               
DEC require a NPDES for lead in those areas.                                                                                    
                                                                                                                                
MS.  KENT  informed  the  committee   that  such  facilities  are                                                               
currently required  to obtain an  NPDES permit from EPA  and this                                                               
[legislation]  doesn't change  the requirements  for obtaining  a                                                               
NPDES permit for a firing range.                                                                                                
                                                                                                                                
1:50:23 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SEATON related  his  understanding that  existing                                                               
statute exempts such facilities, but  the new language on page 3,                                                               
line  19,  changes  that  exemption to  a  non-exemption  if  the                                                               
facility [discharges into] the water.                                                                                           
                                                                                                                                
MS.  KENT reminded  the committee  that this  portion of  statute                                                               
includes the  disposal of  liquids and solid  waste to  the lands                                                               
and waters of the state.   Therefore, the exemption was to remove                                                               
the  requirement  to  obtain a  state  authorization  for  firing                                                               
munitions  at  a firing  range.    However, because  EPA's  NPDES                                                               
permit program  requires an NPDES  permit for firing  into waters                                                               
of  the U.S.,  the  state NPDES  does as  well.   Therefore,  the                                                               
department  maintained a  carve-out  such that  a  permit is  not                                                               
required for  a firing range that  discharges to land.   Still, a                                                               
permit under the  NPDES program run by the state  or the EPA does                                                               
require a NPDES permit.                                                                                                         
                                                                                                                                
1:51:47 PM                                                                                                                    
                                                                                                                                
CO-CHAIR  GATTO recalled  the  firing range  in  Eagle River  and                                                               
reminded the committee  that the lower end of the  Eagle River is                                                               
next  to  the  inlet.    If munitions  land  in  wetlands,  which                                                               
ultimately end  up in the waters  of the U.S., "does  that pretty                                                               
much  nullify  everybody  from doing  anything  every  time,"  he                                                               
asked.                                                                                                                          
                                                                                                                                
MS.  KENT related  her understanding  that the  EPA required  the                                                               
Eagle River  Flats to  apply for  a NPDES  permit for  the range,                                                               
which  she  opined is  still  an  active  range.   She  said  she                                                               
suspected  that the  EPA  did  not issue  a  permit, although  it                                                               
required a permit application to be submitted.                                                                                  
                                                                                                                                
1:52:49 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE WILSON commented  that in Sitka there  is a firing                                                               
range over  waters, which led  to a change  in the makeup  of the                                                               
shot.                                                                                                                           
                                                                                                                                
1:53:19 PM                                                                                                                    
                                                                                                                                
CO-CHAIR  JOHNSON moved  to report  HB  149, as  amended, out  of                                                               
committee  with individual  recommendations and  the accompanying                                                               
fiscal  notes.   There  being  no  objection, CSHB  149(RES)  was                                                               
reported from the House Resources Standing Committee.                                                                           
                                                                                                                                
HB 128-OIL & GAS PRODUCTION TAX: EXPENDITURES                                                                                 
                                                                                                                                
1:53:46 PM                                                                                                                    
                                                                                                                                
CO-CHAIR GATTO announced  that the final order  of business would                                                               
be  HOUSE BILL  NO.  128,  "An Act  relating  to allowable  lease                                                               
expenditures for  the purpose of  determining the  production tax                                                               
value  of  oil and  gas  for  the purposes  of  the  oil and  gas                                                               
production tax; and providing for an effective date."                                                                           
                                                                                                                                
1:54:27 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SEATON  moved  that   the  committee  adopt  CSHB
128(O&G)  for discussion  purposes.   There  being no  objection,                                                               
CSHB 128(O&G) was before the committee.                                                                                         
                                                                                                                                
1:55:20 PM                                                                                                                    
                                                                                                                                
CONRAD JACKSON, Staff to Representative  Kurt Olson, Alaska State                                                               
Legislature, speaking  on behalf  of the sponsor,  explained that                                                               
HB 128  was introduced in  order to close the  perceived loophole                                                               
in AS  43.55.163 that specifies  the lease expenditures  that are                                                               
not  available for  credit or  deduction  against the  production                                                               
profits tax (PPT).  The sponsor,  he related, believes that it is                                                               
not  appropriate for  Alaskans  to be  held  responsible for  the                                                               
expenses of repair  or replacement of property  or equipment that                                                               
is improperly maintained  or not maintained at all.   The sponsor                                                               
does not  intend to open up  the entire PPT, he  further related.                                                               
Mr. Jackson  pointed out that  CSHB 128(O&G) includes  some minor                                                               
changes on  page 3 such as  the inclusion of the  commissioner of                                                               
the Department of  Natural Resources (DNR) and  the entire Alaska                                                               
Oil and Gas  Conservation Commission (AOGCC), and  inclusion of a                                                               
provision that  would address equipment that  was not maintained.                                                               
He noted  that the committee  packet should include  an amendment                                                               
that has been  suggested by the Department of Revenue  (DOR).  He                                                               
indicated that  the sponsor  is amenable to  the adoption  of the                                                               
amendment.                                                                                                                      
                                                                                                                                
1:58:19 PM                                                                                                                    
                                                                                                                                
CO-CHAIR  GATTO  asked  if  the  oil  companies,  in  failing  to                                                               
properly maintain  [their equipment],  did something  "not right"                                                               
or something illegal.                                                                                                           
                                                                                                                                
MR.  CONRAD  deferred  to  Mr.  Bullock  with  Legislative  Legal                                                               
Services.  He  then related his understanding that  under the PPT                                                               
if an oil company does not  properly maintain a transit line, for                                                               
example, which creates the need  for repair, those expenses would                                                               
ultimately be deductible from the PPT.                                                                                          
                                                                                                                                
CO-CHAIR  GATTO  related his  understanding  that  under the  PPT                                                               
expenses, maintenance, and repairs  are deductible.  Furthermore,                                                               
replacement is  probably deductible,  he opined.   Co-Chair Gatto                                                               
expressed  his  desire  to  be on  firm  legal  ground  regarding                                                               
whether what  the oil companies did  not do was a  violation that                                                               
would  cause the  introduction of  legislation  removing the  oil                                                               
companies' ability to take deductions.                                                                                          
                                                                                                                                
2:00:58 PM                                                                                                                    
                                                                                                                                
JONATHON  IVERSEN,  Director,  Anchorage Office,  Tax  Divisions,                                                               
Department of  Revenue, related  DOR's support for  HB 128.   The                                                               
administration,  he  clarified,  supports excluding  these  costs                                                               
from being deducted  or from being allowed as  credits.  Although                                                               
the current law, depending upon  the factual circumstances, would                                                               
provide the  ability to  exclude a cost  that is  attributable to                                                               
gross negligence,  for example.   Therefore, some  or potentially                                                               
all of  the costs [being  targeted by  HB 128] would  be excluded                                                               
under the current law.  Mr.  Iverson related that DOR supports HB
128  because  it   clarifies  the  actual  status   of  the  law.                                                               
Furthermore,   the  legislation   would  add   strength  to   any                                                               
regulation that  DOR would  write.  If  the legislature  wants to                                                               
have a  clear manner  in which  to exclude  these costs,  then it                                                               
should be done  in the statute because  regulations written under                                                               
the current law would be subject to legal challenge.                                                                            
                                                                                                                                
MR.   IVERSEN   then   turned   to   DOR's   interpretations   of                                                               
[subparagraphs]  (B) and  (C)  on page  3.   At  this point,  DOR                                                               
interprets  subparagraph   (B)  to  address  costs   incurred  to                                                               
maintain  operational  capability   of  facilities  or  equipment                                                               
during  a shut  down  due to  improper  maintenance or  practice.                                                               
Therefore,  an auditor  would  completely  exclude all  operating                                                               
costs for equipment or facilities during  a shut down when due to                                                               
improper maintenance or  lack thereof.  Subparagraph  (C) on page                                                               
3, he related, would come  into effect during times of diminished                                                               
production  such as  when production  is reduced  by half  due to                                                               
improper  maintenance  while  the  costs of  operation  are  only                                                               
reduced by  one-third, for  instance.  In  such a  situation, the                                                               
portion of the  reduction in operating costs that  does not track                                                               
the reduction in  production would be excluded.   In other words,                                                               
an  auditor would  exclude an  operating cost  to the  extent the                                                               
percentage   reduction  in   production  is   greater  than   the                                                               
percentage reduction  in operating  costs when the  production is                                                               
reduced due  to failure to  properly maintain the property.   Mr.                                                               
Iversen  noted  that  HB  128 incorporates  one  of  DOR's  early                                                               
suggestions [in  paragraph (19)  on page 3]  to use  the language                                                               
"taking into  consideration".  The aforementioned  was desired in                                                           
the case  the standards do  not apply  to the situation  and thus                                                               
DOR is given more flexibility  to have the discretion to consider                                                               
or  give  weight  to  any  given  practice,  depending  upon  the                                                               
circumstances.                                                                                                                  
                                                                                                                                
2:05:50 PM                                                                                                                    
                                                                                                                                
CO-CHAIR  GATTO  highlighted  the difficulty  with  the  language                                                               
"improperly maintained"  because "proper" versus  "improper" will                                                           
have  to be  defined.   He  then  posed a  situation  in which  a                                                               
company saved $100 from improper  maintenance and then spent $100                                                               
on fixing the improper maintenance.   In such a situation, should                                                               
the company be penalized if it is a wash in money?                                                                              
                                                                                                                                
2:08:08 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE ROSES,  in terms  of allowed deductions,  asked if                                                               
the companies  are allowed  to depreciate the  line.   He further                                                               
asked  if  the  companies  take   a  depreciation  off  of  their                                                               
corporate taxes or their PPT.                                                                                                   
                                                                                                                                
MR.  IVERSEN answered  that capital  expenditures  under PPT  are                                                               
both "deducted" immediately and subject  to a credit.  Therefore,                                                               
there  is  not a  depreciation  type  of  expense under  the  net                                                               
profits scenario.   In further response  to Representative Roses,                                                               
Mr. Iversen specified  that the line itself is  not a depreciable                                                               
commodity, if there were no repairs or replacements.                                                                            
                                                                                                                                
REPRESENTATIVE ROSES  posed a situation  in which a  company, due                                                               
to negligence, has  to replace the pipe in the  18th or 19th year                                                               
of its  15- to 20-year  [estimated life].   In such  a situation,                                                               
would  the entire  amount of  that repair  not be  allowed [as  a                                                               
deduction]  since in  another year  the pipe  would have  to have                                                               
been replaced.   Representative Roses specified  that his concern                                                               
is one  of equitability since  he recalled that the  PPT included                                                               
language  stating  that any  negligence  [was  not allowed  as  a                                                               
deduction].                                                                                                                     
                                                                                                                                
2:09:57 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE WILSON  pointed out  that a  company for  which it                                                               
was costly  to maintain something  and that company chose  not to                                                               
maintain it  for a while  knowing that when  it had to  be fixed,                                                               
the cost of  doing so could be  deducted.  On the  other hand, if                                                               
such a repair cannot be deducted,  the company may maintain it in                                                               
order  to avoid  more  costly  repairs later  that  would not  be                                                               
deductible.                                                                                                                     
                                                                                                                                
MR. IVERSON opined that those  would be business-driven decisions                                                               
rather than tax-driven decisions.   The equipment at issue was in                                                               
place prior to the enactment of the PPT, he noted.                                                                              
                                                                                                                                
REPRESENTATIVE WILSON  asked if  HB 128  would make  a difference                                                               
from now on.                                                                                                                    
                                                                                                                                
MR. IVERSON said that he believes  HB 128 would make a difference                                                               
because  it improves  the incentives.    As a  policy matter,  it                                                               
pushes  the incentives  toward proper  maintenance  and giving  a                                                               
limit as  to where the credits  would be allowed and  whether the                                                               
costs being discussed would be deductible.                                                                                      
                                                                                                                                
2:12:45 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  ROSES  related  his understanding  that  although                                                               
negligence  already  disallows  a   deduction,  HB  128  provides                                                               
clarity.    However,  once  it's  retroactive  the  situation  is                                                               
changed due  to an  occurrence rather  than predicting  it prior.                                                               
Therefore, Representative  Roses said  that he supported  HB 128,                                                               
save the retroactivity provision.                                                                                               
                                                                                                                                
2:14:32 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SEATON,   returning  to  depreciation,   posed  a                                                               
situation in which  something in the oil field is  designed for a                                                               
useful  life of  30 years.    Under this  provision if  something                                                               
happens to it  even when it lasted through its  full design life,                                                               
would it be considered nondeductible  because the company did not                                                               
expend a  lot of money to  obtain a lifetime beyond  its expected                                                               
life.                                                                                                                           
                                                                                                                                
MR. IVERSON clarified  that under current law costs  due to gross                                                               
negligence can be  excluded.  He then opined that  it is really a                                                               
facts and  circumstance type  of determination,  especially since                                                               
the   life   of  technology   is   constantly   changing.     The                                                               
aforementioned, he further  opined, is why DNR and  the AOGCC are                                                               
involved so that they would  have the ability to evaluate whether                                                               
a  pipeline would  reasonably be  expected to  last to  a certain                                                               
age.                                                                                                                            
                                                                                                                                
2:16:43 PM                                                                                                                    
                                                                                                                                
CO-CHAIR GATTO commented  that none of the  committee members are                                                               
experts on  pipelines, but everyone  is an expert with  regard to                                                               
maintenance and make  choices on maintenance every day.   He then                                                               
questioned whether  anything could have  been done to  extend the                                                               
life of the pipeline to 35 years  when it would have needed to be                                                               
replaced  even with  maintenance.   Co-Chair Gatto  asked whether                                                               
the state  is going too far  in penalizing a company  for failing                                                               
to  do a  certain  amount  of maintenance  not  knowing what  the                                                               
appropriate amount was.                                                                                                         
                                                                                                                                
MR.  IVERSON  reminded  the committee  that  under  the  Pipeline                                                               
Systems  Integrity   Office  (PSIO)   within  DNR,   the  quality                                                               
assurance   programs   required   should   address   an   ongoing                                                               
maintenance  plan  in  which revisions  to  life  expectancy  and                                                               
related revisions to planned maintenance are incorporated.                                                                      
                                                                                                                                
2:18:31 PM                                                                                                                    
                                                                                                                                
JONNE   SLEMONS,   Acting  Coordinator,   Engineering   Integrity                                                               
Coordinator's  Office,  Division  of  Oil &  Gas,  Department  of                                                               
Natural Resources, in response to  Co-Chair Gatto, explained that                                                               
the  Leak  Monitoring  and  Engineering  Integrity  Coordinator's                                                               
Office (LMEICO) was not actually  an emergency order, although it                                                               
may have had  that appearance since it  was initiated immediately                                                               
after  the August  shutdown of  a portion  of Prudhoe  Bay.   She                                                               
related that LMEICO  was intended to be  a long-term plan/project                                                               
and  the PSIO  replaces it  in order  to distinguish  between the                                                               
scopes  of the  two programs,  which are  significantly different                                                               
from an administrative point of view.                                                                                           
                                                                                                                                
2:19:56 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SEATON  surmised then that  if anything has  to be                                                               
replaced and it did not have  proper maintenance, then it may not                                                               
be deductible.  He further  surmised that the aforementioned will                                                               
be determined by the commissioners.   Representative Seaton said,                                                               
"Whether  it's pumps  or  valves, or  well  casings, or  anything                                                               
else, if  there was any  possible way they could've  extended the                                                               
life of that  and not whether it's an emergency  shutdown, but if                                                               
it just  has to be  replaced, then  ... this calls  into question                                                               
whether that's  going to be  deductible and creditable.   Is that                                                               
correct?"                                                                                                                       
                                                                                                                                
MR. IVERSON  said it does  call that into question,  although how                                                               
far  that determination  is to  go should  be made  clear by  the                                                               
legislature  on   the  record.     He  confirmed   that  improper                                                               
maintenance  will  be  called  into  question,  but  it  may  not                                                               
necessarily  only be  in regard  to the  extension of  the item's                                                               
useful life.                                                                                                                    
                                                                                                                                
2:21:23 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SEATON  clarified  that the  [legislation]  isn't                                                               
necessarily addressing breakdowns.   He related his understanding                                                               
that  any  time something  is  being  replaced  it would  have  a                                                               
capital credit when it is replaced  because the item is worn out.                                                               
He asked  if the deductibility  and creditability of  the capital                                                               
expenditure and  operation money  would be called  into question,                                                               
if  an  item is  showing  wear  and  tear  that could  have  been                                                               
maintained in order to extend the item's useful life.                                                                           
                                                                                                                                
MR. IVERSON responded  that he believes that is  correct with the                                                               
caveat that the  issue is whether the item  "achieves" its useful                                                               
life rather than extending its useful life.                                                                                     
                                                                                                                                
2:22:37 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SEATON then posed a  situation in which a facility                                                               
with a 30-year  design life expectancy that  exceeds that 30-year                                                               
design life, "we're  now going to ... or we  have the possibility                                                               
of disallowing the capital replacements or not."                                                                                
                                                                                                                                
MR. IVERSON said he thinks that  is an option in either case, but                                                               
it  would depend  on the  facts of  any given  case.   The actual                                                               
useful life  of an  item may change  depending on  technology and                                                               
practices in the field.                                                                                                         
                                                                                                                                
2:23:42 PM                                                                                                                    
                                                                                                                                
ROD MINTZ, Attorney, K & L  Gates, informed the committee that he                                                               
is  working  with  the  Department   of  Revenue  (DOR)  and  the                                                               
Department of Law  (DOL) on production tax matters.   With regard                                                               
to Representative  Seaton's question, Mr. Mintz  posed an example                                                               
of a facility  with an expected useful life of  25 years that had                                                               
to be  replaced after 23 years  due to improper maintenance.   He                                                               
said  he  understood  Representative   Seaton's  question  to  be                                                               
whether  in the  aforementioned situation  the legislation  would                                                               
disallow the  entire replacement costs although  only two-twenty-                                                               
fifths   of  that   would  be   attributable   to  the   improper                                                               
maintenance.   The current  legislation could  be read  as having                                                               
that effect.  However, the  introductory language of the proposed                                                               
paragraph  (19) refers  to  "that portion  of  the costs",  which                                                           
could mean an allocation as to  the portion of the costs that are                                                               
attributable to  the improper maintenance versus  the replacement                                                               
costs  necessary in  the ordinary  course of  events.   Mr. Mintz                                                               
said that this is a situation  in which it might be beneficial to                                                               
have  some legislative  clarification  as to  the  intent of  the                                                               
sponsors on this matter.                                                                                                        
                                                                                                                                
2:25:42 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SEATON   surmised  then  that   clarification  is                                                               
necessary.                                                                                                                      
                                                                                                                                
2:26:26 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  ROSES recalled  that early  on the  committee was                                                               
told  that this  language would  help clarify  the situation  and                                                               
thus [the department]  would not have to depend  on negligence or                                                               
gross  negligence  to  determine   whether  the  situation  under                                                               
discussion  would be  deductible.   Representative Roses  related                                                               
his understanding  from Mr. Mintz  that even if the  language was                                                               
interpreted to mean an allocation as  to the portion of the costs                                                               
attributable  to   the  improper   maintenance,  the   amount  of                                                               
maintenance that  contributed to  the item  not meeting  its full                                                               
life  would have  to  be  determined.   Would  that  be any  less                                                               
difficult  legally to  define or  defend as  negligence or  gross                                                               
negligence, he asked.                                                                                                           
                                                                                                                                
MR.  MINTZ said  that there  are really  two issues:   the  legal                                                               
standard and what the facts show.   Under any legal standard, the                                                               
department  will have  to review  the facts,  consult with  other                                                               
agencies, and apply the legal standard  to the facts.  There will                                                               
be controversy  about that, especially  when lots of money  is at                                                               
stake.  With regard to whether  there is sufficient clarity as to                                                               
what  the   legal  standard  is,   Mr.  Mintz  opined   that  the                                                               
legislation would clarify that there  is a broader legal standard                                                               
in terms of disallowing costs  than exists under the current law.                                                               
The  current  law  essentially   utilizes  a  standard  of  gross                                                               
negligence.   If  improper  or  lack of  maintenance  was due  to                                                               
something  lesser  than  gross   negligence,  such  as  imprudent                                                               
conduct or ordinary  negligence, then it would  be more difficult                                                               
to  exclude that  under the  current standard  than the  standard                                                               
being proposed  in HB 128.   Therefore, if the desire  is to make                                                               
the  applicable  standard  more   bullet  proof,  that  would  be                                                               
beneficial.   The need to  evaluate the facts under  a particular                                                               
circumstance  would  remain, although  there  would  be a  better                                                               
standard in terms of the  policy the legislature is interested in                                                               
implementing.                                                                                                                   
                                                                                                                                
2:29:31 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  ROSES asked  if it  would be  difficult to  prove                                                               
gross  negligence in  a  situation in  which  someone uses  water                                                               
instead of corrosion inhibitors.                                                                                                
                                                                                                                                
MR.  MINTZ reiterated  the  need  to apply  the  standard to  the                                                               
facts.  He  opined that there are surely situations  in which the                                                               
conduct or failures and omissions on  the part of a person are so                                                               
egregious  that  it would  be  easy  to prove  gross  negligence.                                                               
However, gross  negligence is certainly a  narrower standard that                                                               
would apply  to fewer  cases than  either ordinary  negligence or                                                               
the standard proposed in HB 128.                                                                                                
                                                                                                                                
2:30:38 PM                                                                                                                    
                                                                                                                                
CO-CHAIR GATTO  opined that the language  "improperly maintained"                                                           
is difficult  because there could  be situations in which  only a                                                               
section  of the  pipe  is corroded.   In  such  a situation,  the                                                               
question becomes whether the pipe  was improperly maintained over                                                               
its entire length  or would the corroded portion  only be subject                                                               
to the improper maintenance rule.                                                                                               
                                                                                                                                
MR.  MINTZ said  that the  question is  the extent  to which  the                                                               
phrase  "portion  of  the  costs"   is  intended  to  provide  an                                                           
allocation between the costs actually  due to lack of maintenance                                                               
and  the  costs that  would  have  been  incurred in  any  event.                                                               
Again, he reiterated  that the state could  benefit from guidance                                                               
from the legislature as to what it intends.                                                                                     
                                                                                                                                
2:32:02 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE   SEATON  related   his  understanding   that  the                                                               
standard being implied  in HB 128 is  improper maintenance rather                                                               
than negligence.   He pointed out that  improper maintenance does                                                               
not need to  be negligence.  He inquired as  to the "bullet-proof                                                               
relationship"  between improper  maintenance and  negligence that                                                               
would be utilized in all cases.                                                                                                 
                                                                                                                                
MR.  MINTZ  stated  that negligence  is  a  very  well-recognized                                                               
concept in the  law while improper maintenance seems to  be a new                                                               
concept for which  he was not sure of the  guidance available for                                                               
it.  It seems that by  adopting something other than a negligence                                                               
standard seems to  indicate legislative intent to  have a broader                                                               
standard.   Furthermore,  rather than  reviewing the  standard of                                                               
care the  operator/producer is using,  it reviews the  results of                                                               
the  maintenance practices  or omissions.   Therefore,  Mr. Mintz                                                               
opined that  it would  be possible that  costs would  be excluded                                                               
under   the  improper   maintenance   standard   but  would   not                                                               
necessarily be excluded under a negligence standard.                                                                            
                                                                                                                                
REPRESENTATIVE  SEATON surmised  then  that improper  maintenance                                                               
and negligence  are not identical  terms.   Furthermore, improper                                                               
maintenance can cover  more things than negligence and  thus is a                                                               
much broader standard.                                                                                                          
                                                                                                                                
MR. MINTZ  replied, "I  don't know  that I  could quantify  it as                                                               
being much  broader or  somewhat broader,  but I  do think  it is                                                               
broader."                                                                                                                       
                                                                                                                                
2:34:59 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GUTTENBERG highlighted that  this state has a long                                                               
history of litigation  with the oil industry and  often simply to                                                               
define terms.  He asked if  the state's relationship with the oil                                                               
industry  has resulted  in definitions  of  the following  terms:                                                               
"not    maintained,"    "improperly   maintained,"    "diminished                                                               
capacity,"  "standard  practices  of   the  industry,"  or  "good                                                               
practices of the industry."                                                                                                     
                                                                                                                                
MR. MINTZ answered  that as far as the tax  law is concerned, the                                                               
state does  not have those  definitions.  However, there  is some                                                               
jurisprudence  in  regard  to  "good  oil  field  practices"  and                                                               
"reasonable  producer standards."    As to  what standards  exist                                                               
that  would   address  this,  he   deferred  to  DNR   and  AOGCC                                                               
representatives.                                                                                                                
                                                                                                                                
2:36:49 PM                                                                                                                    
                                                                                                                                
JOHN NORMAN,  Commissioner/Chair, Alaska  Oil &  Gas Conservation                                                               
Commission (AOGCC), Department  of Administration, explained that                                                               
the AOGCC  is reviewing  this from  the viewpoint  of the  law of                                                               
general  application  that  will  reach  into  the  years  ahead,                                                               
although recent  events may be driving  this.  If HB  128 passes,                                                               
AOGCC will do its best to  implement it.  Mr. Norman then offered                                                               
that  there  are basically  four  categories  of behavior  of  an                                                               
individual or  company.   Those four  categories are  as follows:                                                               
an intentional  or willful  act; gross  negligence or  willful or                                                               
wanton conduct  done in careless  disregard to  the consequences;                                                               
negligence; and strict liability in  which no concern is given to                                                               
what  led up  to  the incident.   The  first  two categories,  an                                                               
intentional  act and  gross negligence,  are already  included in                                                               
the  legislation in  Section  1(e)(6).   The  category of  strict                                                               
liability  is  partially addressed  in  Section  1(e)(16).   That                                                               
leaves the third category of  negligence [in question].  He noted                                                               
his agreement with Mr. Mintz that  an argument could be made that                                                               
the  legislation   disallows  property  that  was   not  properly                                                               
maintained  or that  was negligently  maintained.   "Normally, in                                                               
gross negligence it often leaps out  at you and the obvious cases                                                               
and situations will sort themselves  out," he opined.  He further                                                               
opined that such  cases will be screened out  by Section 1(e)(6).                                                               
He  suggested  that  Section  1(e)(19)  will  be  more  difficult                                                               
because  it seems  to address  ordinary  negligence, although  he                                                               
said he did  not presume to know.  Therefore,  if the legislation                                                               
used the language "negligently  maintained," the discussion would                                                               
be ended.                                                                                                                       
                                                                                                                                
2:42:57 PM                                                                                                                    
                                                                                                                                
MR.  NORMAN  suggested  that  if the  intention  is  to  penalize                                                               
negligent maintenance  without imposing a strict  liability, then                                                               
it might  be best to use  the term "negligence" for  clarity.  He                                                               
said that the  words "good oil field practices"  are preferred by                                                               
the AOGCC,  and that it is  his understanding that they  are also                                                               
preferred by DNR  and DOR.  Those terms already  appear in Alaska                                                               
law, specifically in  AS 31.05.170(15) and in a  number of places                                                               
in the state's regulations.  He  said that it is a more objective                                                               
and precise  standard than one  that says "standard  practices of                                                               
the  industry" which  might  invite  a company  to  look at  what                                                               
others in the oil field are  doing and it is conceivable that the                                                               
prevailing number  of operators  there are  all operating  not in                                                               
accordance with good oil field practices.   If they are all doing                                                               
it, they  could argue  that this is  "standard practice"  in this                                                               
field.   He noted that  there are a number  of oil fields  in the                                                               
world that  do not practice  what AOGCC would consider  "good oil                                                               
field practices."                                                                                                               
                                                                                                                                
MR. NORMAN  addressed the  issue of replacement.   He  noted that                                                               
various components - compressors and  gaskets, for example - have                                                               
a certain  useful life, but  that this is not  necessarily exact.                                                               
Consequently,  this  could  be   inviting  early  replacement  of                                                               
component parts  that actually  still have a  longer life.   When                                                               
the time comes to implement  the bill's provisions by regulation,                                                               
AOGCC would  strive to  promulgate regulations  in a  manner that                                                               
does not  discourage innovation,  such as  the pioneering  of new                                                               
techniques and  production methodologies.   He said that  this is                                                               
necessary because  it sometimes  takes years  to figure  out that                                                               
something does not work.                                                                                                        
                                                                                                                                
2:46:09 PM                                                                                                                    
                                                                                                                                
MR. NORMAN  advised the  committee to  re-think the  policy being                                                               
established  by Section  1, paragraphs  (19)(A) and  (B), because                                                               
operators  are often  reacting to  an event.   Paragraph  (19)(A)                                                               
denies  the  cost  of  repair  and  replacement  of  property  or                                                               
equipment that  was not maintained or  was improperly maintained.                                                               
Paragraph (19)(B) denies  the cost of an  operational shutdown of                                                               
the  entire facility  if  it  occurs as  the  result of  improper                                                               
maintenance.  He  stated that AOGCC believes  operators should be                                                               
allowed a certain  amount of latitude in determining  what is the                                                               
best way  to respond to  an event.   For example, the  safest and                                                               
most prudent  way to  handle a  particular repair  or replacement                                                               
might be to shut down the  facility for a certain period of time.                                                               
However, under this new policy,  an operator may instead elect to                                                               
keep everything  running so as  not to lose the  deductibility of                                                               
the repair or replacement.                                                                                                      
                                                                                                                                
2:49:13 PM                                                                                                                    
                                                                                                                                
MR. NORMAN pointed out that  in partnership operating agreements,                                                               
the  operating partners,  as among  themselves,  do not  normally                                                               
penalize an  operating partner for simple  negligence, because no                                                               
one would  want to be an  operator if, in effect,  they are being                                                               
required  to  become an  insurer  of  a  perfect operation.    He                                                               
requested  that   the  legislature   give  AOGCC   some  guidance                                                               
regarding  whether  Section  1,  paragraphs (6)  and  (16),  mean                                                               
"negligence"  or  something  broader   than  that,  perhaps  even                                                               
approaching strict liability.                                                                                                   
                                                                                                                                
2:50:09 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  ROSES  asked whether  the  term  "good oil  field                                                               
practices"  is the  measure  that would  be  used in  determining                                                               
intentional, wilful, or gross negligence.                                                                                       
                                                                                                                                
2:50:36 PM                                                                                                                    
                                                                                                                                
MR.  NORMAN  stated  yes,  it   would  certainly  be  a  measure.                                                               
However,  he  said that  what  is  looked  for  is the  level  of                                                               
culpability, or  the degree  of fault.   For example,  whether an                                                               
incident  is  not  only  a  failure  to  follow  good  oil  field                                                               
practices,  but it  is  done  in a  knowing  way  and often  with                                                               
careless disregard  of the consequences.   Occasionally  in these                                                               
types of  incidents, there will  be memoranda to  management with                                                               
management replying  "Yes, we  hear you, but  we're opting  to go                                                               
forward."  He reiterated that  usually gross negligence cases are                                                               
egregious  violations that  "jump out  at you."   He  stated that                                                               
AOGCC's approach,  unless directed otherwise by  the legislature,                                                               
is  to measure  this  type  of incident  against  good oil  field                                                               
engineering practice.  He said  that it is the operator's conduct                                                               
that identifies and  brands the incident as  gross negligence, as                                                               
opposed to  just simple  negligence where no  one was  aware that                                                               
this type of incident might occur.                                                                                              
                                                                                                                                
2:52:41 PM                                                                                                                    
                                                                                                                                
MR. NORMAN, in  response to a question, noted  that [the incident                                                               
which  triggered this  legislation]  occurred in  a transit  line                                                               
exiting  a treatment  facility.   He said  that, in  theory, this                                                               
line should  have carried  pipeline quality  oil that  would have                                                               
flowed on through  and that is why this was  a surprise, at least                                                               
on  the one  event  that  occurred.   He  related  that there  is                                                               
testimony  by various  operators  that supports  the notion  that                                                               
maintenance is performed  up to the anticipated  length of useful                                                               
life.    He  stated that  he  did  not  know  the facts  in  this                                                               
particular situation,  and that if he  did he would be  unable to                                                               
comment because it would prejudge  something that will ultimately                                                               
come  before the  AOGCC.   However, he  said that  he can  safely                                                               
state that it  is less likely to find this  level of corrosion in                                                               
a transit  line as  opposed to  what is  expected in  a gathering                                                               
line.   Foreseeability is  always an element  of negligence  - if                                                               
something  occurs and  it is  not foreseeable,  then normally  an                                                               
operator is not held to have been negligent.                                                                                    
                                                                                                                                
2:54:17 PM                                                                                                                    
                                                                                                                                
CO-CHAIR GATTO announced that CSHB 128(O&G) is being held over.                                                                 
                                                                                                                                
2:54:34 PM                                                                                                                    
                                                                                                                                
ADJOURNMENT                                                                                                                   
                                                                                                                                
There being no  further business before the  committee, the House                                                               
Resources Standing Committee meeting was adjourned at 2:54 p.m.                                                                 

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