Legislature(2003 - 2004)

02/26/2004 01:33 PM House TRA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                    ALASKA STATE LEGISLATURE                                                                                  
            HOUSE TRANSPORTATION STANDING COMMITTEE                                                                           
                       February 26, 2004                                                                                        
                           1:33 p.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Representative Jim Holm, Chair                                                                                                  
Representative Beverly Masek                                                                                                    
Representative Dan Ogg                                                                                                          
Representative Nick Stepovich                                                                                                   
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
Representative Vic Kohring                                                                                                      
Representative Mary Kapsner                                                                                                     
Representative Albert Kookesh                                                                                                   
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
HOUSE BILL NO. 327                                                                                                              
"An Act  relating to the powers  and duties of the  Department of                                                               
Transportation   and   Public   Facilities;   and   repealing   a                                                               
requirement that  public facilities comply with  energy standards                                                               
adopted   by  the   Department  of   Transportation  and   Public                                                               
Facilities."                                                                                                                    
                                                                                                                                
     - MOVED CSHB 327(TRA) OUT OF COMMITTEE                                                                                     
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: HB 327                                                                                                                  
SHORT TITLE: POWERS/DUTIES DOTPF                                                                                                
SPONSOR(S): REPRESENTATIVE(S) HOLM                                                                                              
                                                                                                                                
05/16/03       (H)       READ THE FIRST TIME - REFERRALS                                                                        
05/16/03       (H)       TRA, STA                                                                                               
02/19/04       (H)       TRA AT 1:30 PM CAPITOL 17                                                                              
02/19/04       (H)       Heard & Held                                                                                           
02/19/04       (H)       MINUTE(TRA)                                                                                            
02/26/04       (H)       TRA AT 1:30 PM CAPITOL 17                                                                              
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
TODD LARKIN, Staff                                                                                                              
to Representative Jim Holm                                                                                                      
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION  STATEMENT:     During  hearing  on   HB  327,  provided                                                               
information and answered questions.                                                                                             
                                                                                                                                
JEFF OTTESEN, Statewide Planning Chief                                                                                          
Division of Statewide Planning                                                                                                  
Department of Transportation & Public Facilities                                                                                
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:   Testified  on HB 327;  provided information                                                               
and answered questions.                                                                                                         
                                                                                                                                
SUSAN URIG, Assistant Attorney General                                                                                          
Transportation Section                                                                                                          
Civil Division                                                                                                                  
Department of Law                                                                                                               
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:   During  hearing on  HB 327,  answered legal                                                               
questions.                                                                                                                      
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
TAPE 04-8, SIDE A                                                                                                             
Number 0001                                                                                                                     
                                                                                                                                
CHAIR  JIM   HOLM  called   the  House   Transportation  Standing                                                             
Committee meeting  to order at  1:33 p.m.   Representatives Holm,                                                               
Masek, Stepovich, and Ogg were present at the call to order.                                                                    
                                                                                                                                
HB 327-POWERS/DUTIES DOTPF                                                                                                    
                                                                                                                                
CHAIR HOLM announced that the only order of business would be                                                                   
HOUSE BILL NO. 327, "An Act  relating to the powers and duties of                                                               
the  Department  of  Transportation and  Public  Facilities;  and                                                               
repealing  a  requirement  that  public  facilities  comply  with                                                               
energy standards adopted by the  Department of Transportation and                                                               
Public Facilities."                                                                                                             
                                                                                                                                
Number 0068                                                                                                                     
                                                                                                                                
REPRESENTATIVE  MASEK  moved  to  adopt  the  proposed  committee                                                               
substitute (CS), labeled 23-LS1135\I,  Utermohle, 2/24/04, as the                                                               
work draft.   There being no objection, Version I  was before the                                                               
committee.                                                                                                                      
                                                                                                                                
Number 0116                                                                                                                     
                                                                                                                                
TODD  LARKIN,  Staff to  Representative  Jim  Holm, Alaska  State                                                               
Legislature, provided the following testimony:                                                                                  
                                                                                                                                
     Long ago, [an] executive order  ... found it's way into                                                                    
     statute through  the lack  of legislative  action; when                                                                    
     you  fail to  take action  it goes  into statute.   ...                                                                    
     Essentially,  it  was  outside  the  practices  of  the                                                                    
     department and the state;  the statute that's mentioned                                                                    
     here.  ... A gentlemen  who had some conflicts with one                                                                    
     of the projects that  DOT [Department of Transportation                                                                    
     &  Public  Facilities  (DOT&PF)] was  doing,  was  very                                                                    
     industrious and dug through the  statutes and found out                                                                    
     that  we  weren't  complying   with  this  statute  and                                                                    
     therefore stopped one of our state projects.                                                                               
                                                                                                                                
MR.  LARKIN said  the thrust  of  the bill  is the  same and  the                                                               
changes are technical.  He  said DOT&PF has reviewed this section                                                               
of statute  extensively, so it  can be matched up  with standards                                                               
and  practices  that  are  currently  being  done.    Mr.  Larkin                                                               
remarked, "We still endorse the  goal; we're happy to discuss the                                                               
... specific policy points of the bill."                                                                                        
                                                                                                                                
Number 0301                                                                                                                     
                                                                                                                                
JEFF  OTTESEN, Statewide  Planning Chief,  Division of  Statewide                                                               
Planning,  Department  of  Transportation  &  Public  Facilities,                                                               
testified that he  had been the state's lead on  the lawsuit that                                                               
Mr. Larkin had  mentioned, and had been doing a  lot of work with                                                               
the Department of Law (DOL).   He said he is fairly knowledgeable                                                               
about the  lawsuit and of  the recommended changes.   Mr. Ottesen                                                               
said  he  thought  this  could  be some  of  the  most  important                                                               
legislation  considered this  year because  it potentially  could                                                               
preserve  the  abilities   to  continue  building  transportation                                                               
projects.    Mr.  Ottesen  explained  Sections  3,6,  and  7  are                                                               
strictly housekeeping  measures that  reflect the  current powers                                                               
and duties of the department.                                                                                                   
                                                                                                                                
Number 0391                                                                                                                     
                                                                                                                                
MR. OTTESEN  further explained that  the substantive  sections of                                                               
the bill are directed  at the problem.  One of  the goals of this                                                               
legislation is to ensure that  the project between [Lake] Iliamna                                                               
and Nondalton  can continue  to proceed  with construction.   The                                                               
project has been stalled since 1977,  although most of it, save a                                                               
bridge and  the last three  miles of road,  has been built.   Mr.                                                               
Ottesen said this legislation also  tries to ensure that the same                                                               
issues  that are  at  hand in  the  aforementioned project  don't                                                               
contaminate the  entire state's  transportation program,  that is                                                               
the  state's ability  to proceed  on  aviation projects,  transit                                                               
projects, highway  projects all across  the state.  "This  is not                                                               
just  a rural  problem; this  is  potentially a  rural and  urban                                                               
problem,"  he remarked.   Section  1  of this  legislation is  an                                                               
intent section, which  was recommended by the  Department of Law.                                                               
The department  believes that Section  1 in concert  with Section                                                               
8,  the retroactive  clause, is  critical if  this law  is to  be                                                               
viewed  as applicable  to the  case before  the court  right now.                                                               
Section 2 applies to a  statutory requirement that existed in the                                                               
late  '70s. The  statutory requirement  said that  the department                                                               
would develop a  program with highway projects and  present it to                                                               
the legislature over time.  However,  now the new section of [AS]                                                               
44 speaks  to the  same kind of  requirement, and  therefore this                                                               
section  was changed  so that  these provisions  work in  concert                                                               
rather  than   potentially  being   perceived  as   two  slightly                                                               
different sets of requirements that have to be met.                                                                             
                                                                                                                                
Number 0530                                                                                                                     
                                                                                                                                
MR. OTTESEN  began discussion of  what later became  Amendment 1,                                                               
he noted that [DOT&PF] had  mistakenly sent a recommendation that                                                               
the  language  of  the  legislation should  refer  to  a  20-year                                                               
program of projects.  However, it  should refer to about a 2-year                                                               
program of projects.                                                                                                            
                                                                                                                                
MR. OTTESEN, in response to Chair  Holm, specified that is on the                                                               
top of the second page [of his written comments].  He explained:                                                                
                                                                                                                                
     The reason  it's here is  that the program  of projects                                                                    
     is being (indisc. - paper  shuffling) what can you have                                                                    
     found, what  is the scope,  how much money do  you have                                                                    
     available, and once you get  beyond three or four years                                                                    
     it's not  practical to make those  kind of predictions,                                                                    
     you really  are out there on  the end of the  limb, and                                                                    
     so  this  is not  the  plotting  product; this  is  the                                                                    
     actual what  are we going to  do in the next  couple of                                                                    
     years with  a known  amount of money,  ... so  we think                                                                    
     that should be two years.                                                                                                  
                                                                                                                                
CHAIR  HOLM clarified  that the  language being  discussed is  on                                                               
page 2, line 9.                                                                                                                 
                                                                                                                                
MR. OTTESEN turned attention to  Section 4, which he said applies                                                               
to  the  state's  requirement for  a  multi-modal  transportation                                                               
plan.   Section 4 clarifies  that the  plan is comprised  of many                                                               
different  documents  adopted  over  time,  he  explained.    The                                                               
transportation   plan  includes   plans   for  aviation,   marine                                                               
highways,  highways, borders,  urban  areas, and  subsets of  the                                                               
department  with  many  different  distinctions.    The  singular                                                               
language in current law really  doesn't reflect what the planning                                                               
process is all about.                                                                                                           
                                                                                                                                
Number 0641                                                                                                                     
                                                                                                                                
CHAIR HOLM asked Mr. Ottesen to  comment on page 4, line 25, with                                                               
respect to why the language was changed from "shall" to "may".                                                                  
                                                                                                                                
MR.  OTTESEN  said the  change  is  because  of [23  U.S.C.  135]                                                               
language being  added, which  refers to  the federal  statute for                                                               
surface  transportation planning;  it does  not speak  to harbor,                                                               
aviation, or  transit planning.   Furthermore, it  is a  law that                                                               
already has to be followed.  He remarked:                                                                                       
                                                                                                                                
     When it comes to something  like aviation, we would not                                                                    
     want to have a shall in front  of it and say we have to                                                                    
     consider  highway provisions  in federal  law ...  when                                                                    
     designing an airport, for example.                                                                                         
                                                                                                                                
CHAIR HOLM asked if it was not applicable.                                                                                      
                                                                                                                                
MR.  OTTESEN  said  there  were no  other  federal  statutes  the                                                               
[department] could find that would  be applicable to the aviation                                                               
aspect of  the bill, which  is the  reason for "may"  rather than                                                               
"shall".  He remarked:                                                                                                          
                                                                                                                                
     The language  starting at [line]  28, means  and costs,                                                                    
     and   then  ...   beyond   the   next  sentence   about                                                                    
     considering  the  views  of the  Alaska  Transportation                                                                    
     [Planning] Council.   These are  the exact  issues that                                                                    
     were  before the  court, and  it's the  means and  cost                                                                    
     language  that  the  court found  most  compelling  and                                                                    
     granted a preliminary injunction on.                                                                                       
                                                                                                                                
MR. LARKIN  clarified that the  council being referred to  in the                                                               
deleted section [page  4, lines 28-31, and page 5,  lines 1-3] is                                                               
the council that doesn't exist other than in statue.                                                                            
                                                                                                                                
Number 0794                                                                                                                     
                                                                                                                                
MR.  OTTESEN explained  that the  Alaska Transportation  Planning                                                               
Council was  seated during the  term of Governor Jay  Hammond and                                                               
has been  unseated since  then.   He mentioned  that it  was very                                                               
hard  to  find  people  who were  familiar  with  [transportation                                                               
planning].   Mr. Ottesen said Section  5 applies to a  listing of                                                               
projects  slated for  design and  construction;  it is  typically                                                               
known as the STIP  (Statewide Transportation Improvement Program)                                                               
for surface  transportation; the TIP  (Transportation Improvement                                                               
Program)  for  surface  transportation  within  the  metropolitan                                                               
areas  of   Fairbanks  and  Anchorage;  and   the  AIP  (Aviation                                                               
Improvement   Program).     He   explained   that  the   language                                                               
essentially aligns  this section  of law to  match up  to various                                                               
federal requirements  the state  must also  follow, and  it takes                                                               
out  some  antiquated  requirements  that  are  no  longer  being                                                               
conducted.                                                                                                                      
                                                                                                                                
MR. OTTESEN  explained that Section  8 provides that this  law is                                                               
retrospective  or  retroactive to  the  time  that AS  44.42  was                                                               
adopted as  a matter of  law.  He  said it  was not adopted  as a                                                               
matter of legislative act, "it was  adopted as a matter of nobody                                                               
was paying attention ... to  the administrative order that became                                                               
law."   He  explained that  Section  9 makes  the effective  date                                                               
immediate.   Mr. Ottesen specified  that the consequences  of not                                                               
passing  the legislation  may be  that the  Iliamna to  Nondalton                                                               
[project] may continue to be  delayed; the state's transportation                                                               
planning  process will  remain in  conflict with  various federal                                                               
requirements  and  the  emphasis  will  be  on  process  and  not                                                               
projects, which will  produce more paper and  less pavement; most                                                               
importantly, many  if not  most other  important projects  in all                                                               
areas of the state will be at risk for some litigation.                                                                         
                                                                                                                                
CHAIR HOLM  turned attention  to page 2,  subsection (b),  and he                                                               
asked if  there is the  potential for  a separation of  powers by                                                               
doing this.                                                                                                                     
                                                                                                                                
MR. OTTESEN  said there was a  lot of discussion between  DOL and                                                               
DOT&PF on  this matter.   Essentially, DOL maintained  its stance                                                               
that  this [section]  is not  only important  to this  particular                                                               
project, but it  is an important piece of language.   Mr. Ottesen                                                               
noted that  several members of  DOL are  involved, but he  is not                                                               
the one to give advice on a legal matter.                                                                                       
                                                                                                                                
Number 1001                                                                                                                     
                                                                                                                                
SUSAN URIG,  Assistant Attorney General,  Transportation Section,                                                               
Civil Division, Department  of Law, testified.  Ms.  Urig said it                                                               
was new  to her  too and  she had  discussed it  extensively with                                                               
Deborah Behr and James Cantor  [also with the Department of Law].                                                               
She explained that  the language comes from  legislation that Ms.                                                               
Behr worked on last session.  She remarked:                                                                                     
                                                                                                                                
     There  was discussion  about  whether,  ... in  general                                                                    
     terms, the problem could  be addressed without specific                                                                    
     focus on  this judge's decision  in the case.   ... The                                                                    
     risk that's  run is  that there  would be  ... argument                                                                    
     later  on that  the intent  wasn't to  be direct  about                                                                    
     this  piece  of  litigation.   ...  Judges  do  have  a                                                                    
     healthy  respect for  ... not  only  the separation  of                                                                    
     powers  but  the functions  of  each  of the  different                                                                    
     branches, and  ... the function  of the  legislature is                                                                    
     to enact the law the court must follow.                                                                                    
                                                                                                                                
CHAIR HOLM  remarked, "It just crossed  my mind that we  might be                                                               
stepping on grounds where we might want not to go."                                                                             
                                                                                                                                
MS. URIG said [DOL] was very concerned about that too.                                                                          
                                                                                                                                
Number 1082                                                                                                                     
                                                                                                                                
REPRESENTATIVE STEPOVICH asked how much money would be saved.                                                                   
                                                                                                                                
MR. OTTESEN said it was difficult to answer.                                                                                    
                                                                                                                                
REPRESENTATIVE STEPOVICH asked if there will be savings.                                                                        
                                                                                                                                
MR. OTTESEN  explained that the  state has a "bucket"  of federal                                                               
money that can  either be spent on process or  projects.  He said                                                               
it's a  finite amount  of money  that will not  be changed.   Mr.                                                               
Ottesen  said  [DOT&PF]  had  not been  doing  the  cost  benefit                                                               
studies,  but will  now  have to  start doing  them  in order  to                                                               
defend  [the state]  against  potential litigation.    He said  a                                                               
typical  cost  benefit  study  for  a  modest  project  can  cost                                                               
$100,000, and there are a lot of projects in a year.                                                                            
                                                                                                                                
Number 1128                                                                                                                     
                                                                                                                                
REPRESENTATIVE  OGG  asked  if  the  language  used  on  page  2,                                                               
subsection  (b), is  currently  standard  when [the  legislature]                                                               
wants to statutorily affect a court decision.                                                                                   
                                                                                                                                
MS. URIG said  she has been told  by Ms. Behr that it  is, and it                                                               
comes  from  her best  efforts  in  putting something  like  this                                                               
together.                                                                                                                       
                                                                                                                                
REPRESENTATIVE  OGG said  it is  a  power of  the legislature  to                                                               
change the  rule of  law that has  been decided by  a court.   He                                                               
said he was  curious if that was the language  that was generally                                                               
used.    Representative  Ogg  mentioned  visiting  Nondalton  and                                                               
flying  over the  road [Mr.  Ottesen  had discussed].   The  only                                                               
thing  that  keeps the  people  in  Nondalton from  getting  fire                                                               
equipment and  getting to the medical  center is the [lack  of a]                                                               
bridge and the lawsuit by  a fairly well-to-do individual who has                                                               
property  in  that area.    He  said it  was  very  nice of  that                                                               
individual, in  pursuing this lawsuit,  to bring up a  problem in                                                               
state statute that could have  brought the state's transportation                                                               
and  construction   program  to  a  halt.     Representative  Ogg                                                               
remarked, "So,  I must thank  that individual in his  largess for                                                               
helping  the state  move forward  with our  projects."   He noted                                                               
that  he  thought  DOT&PF  has  done a  very  good  job,  and  he                                                               
appreciated its  efforts in getting  the bridge to the  people in                                                               
Nondalton.                                                                                                                      
                                                                                                                                
REPRESENTATIVE STEPOVICH asked if the  word "may" on page 4, line                                                               
25, gives too much leeway to not do anything.                                                                                   
                                                                                                                                
MR. OTTESEN said he believed that  change would be fine.  He said                                                               
the intention wasn't  to not do it, but even  without the statute                                                               
[the state]  would have  to meet  these requirements  because the                                                               
money comes from the federal government.                                                                                        
                                                                                                                                
CHAIR  HOLM  pointed  out  that   23  U.S.C.  135  is  a  federal                                                               
requirement.  He said it was probably a moot point.                                                                             
                                                                                                                                
Number 1321                                                                                                                     
                                                                                                                                
REPRESENTATIVE OGG  moved to adopt  [Amendment 1], to  delete "0"                                                           
following the  "2" on page 2,  line 9 [thus changing  the "20" to                                                       
"2"].  There being no objection, it was so ordered.                                                                         
                                                                                                                                
Number 1342                                                                                                                     
                                                                                                                                
REPRESENTATIVE  OGG  moved  to  report  CSHB  327,  [Version  23-                                                               
LS1135\I, Utermohle, 2/24/04], as  amended, out of committee with                                                               
individual  recommendations and  the  accompanying fiscal  notes.                                                               
There being  no objection,  CSHB 327(TRA)  was reported  from the                                                               
House Transportation Standing Committee.                                                                                        
                                                                                                                                
ADJOURNMENT                                                                                                                   
                                                                                                                                
There being no  further business before the  committee, the House                                                               
Transportation Standing  Committee meeting was adjourned  at 1:51                                                               
p.m.                                                                                                                            
                                                                                                                                

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