Legislature(1993 - 1994)

03/22/1994 09:07 AM Senate FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                                                                               
                                                                               
                             MINUTES                                           
                    SENATE FINANCE COMMITTEE                                   
                         March 22, 1994                                        
                            9:07 a.m.                                          
  TAPES                                                                        
                                                                               
  SFC-94, #34, Side 1 (325-end)                                                
  SFC-94, #34, Side 2 (575-end)                                                
  SFC-94, #36, Side 1 (000-430)                                                
                                                                               
  CALL TO ORDER                                                                
                                                                               
  Co-chair Drue Pearce  convened the meeting  at approximately                 
  9:07 a.m.                                                                    
                                                                               
  PRESENT                                                                      
                                                                               
  In addition  to Co-chair Pearce,  Senators Kerttula, Rieger,                 
  and Sharp were  present.  Co-chair  Steve Frank and  Senator                 
  Kelly arrived soon  after the meeting began.   Senator Jacko                 
  arrived as it was in progress.                                               
                                                                               
  ALSO ATTENDING:  Senator Leman;  Senator Salo; David Rogers,                 
  Attorney At Law,  Counsel to  the Senate Finance  Committee;                 
  Jack Chenoweth, Legal Services,  Legislative Affairs Agency;                 
  Bob   Poe,    Director,   Division   of    Information   and                 
  Administrative    Services,    Dept.     of    Environmental                 
  Conservation;  Mike  Conway,  Director,  Division  of  Spill                 
  Prevention    and    Response,   Dept.    of   Environmental                 
  Conservation;   Kyle Parker,  Office of  the Governor;  Mike                 
  Greany, Director, Legislative Finance Division; and aides to                 
  committee members and other members of the legislature.                      
                                                                               
  ALSO  PARTICIPATING  VIA   TELECONFERENCE  FROM   ANCHORAGE:                 
  Barbara  Fullmer, Division of Oil and  Gas, Dept. of Natural                 
  Resources; Mary  Ann Lundquist, Assistant  Attorney General,                 
  Dept. of Law; and James Eason, Director, Division of Oil and                 
  Gas, Dept. of Natural Resources.                                             
                                                                               
  SUMMARY INFORMATION                                                          
                                                                               
  SB 215 -  OIL/HAZARDOUS SUBS. RELEASE RESPONSE FUND                          
                                                                               
            A  draft  CSSB  215  (Finance),  "I"  version  was                 
            distributed  for committee  review.   David Rogers                 
            and Jack Chenoweth  spoke to changes  incorporated                 
            within the  new draft.   Senator  Sharp moved  for                 
            adoption  as a working document.  Senator Kerttula                 
            objected.   Additional testimony  relating to  the                 
            draft was  presented by  Bob Poe.    The bill  was                 
            subsequently  HELD  in  committee  for  additional                 
            public testimony.                                                  
                                                                               
  SB 308 -  ADMIN ACTION RE LAND/RESOURCES/PROPERTY                            
                                                                               
                                                                               
            Background  information  on  litigation  regarding                 
            past state oil  and gas lease sales  was presented                 
            by  Kyle Parker.    The  bill  was assigned  to  a                 
            working group under the  direction of David Rogers                 
            to work throughout the week on problem language.                   
                                                                               
                                                                               
  SENATE BILL NO. 215                                                          
                                                                               
       An  Act  relating  to  and  redesignating the  oil  and                 
       hazardous  substance release  response fund and  to its                 
       use in the event of a disaster emergency; repealing the                 
       authority in law by which marine highway vessels may be                 
       designed and constructed  to aid  in oil and  hazardous                 
       substance  spill cleanup  in state  marine water  using                 
       money  in  the  oil  and  hazardous  substance  release                 
       response fund;  amending requirements  relating to  the                 
       revision  of state  and regional master  prevention and                 
       contingency plans; altering requirements  applicable to                 
       liens for recovery of state expenditures related to oil                 
       or hazardous  substances;  amending  the  authority  to                 
       contract to provide  personnel to respond to  a release                 
       or threatened release  of oil or a  hazardous substance                 
       and  to contract  to  conduct  spill related  research;                 
       reassigning  responsibility for  the oil  and hazardous                 
       substance response corps and for the emergency response                 
       depots to the Department of Environmental Conservation,                 
       and for the  operation of the state  emergency response                 
       commission and its  attendant responsibilities for  the                 
       local emergency planning commissions to the  Department                 
       of  Military  and   Veterans'  Affairs;  and  modifying                 
       definitions  of   terms  relating   to  the   preceding                 
       provisions;  terminating   the  nickel-per-barrel   oil                 
       conservation surcharge; levying  and collecting two new                 
       oil  surcharges; and providing  for the  suspension and                 
       reimposition  of   one  of  the  new   surcharges;  and                 
       providing for an effective date.                                        
                                                                               
  Co-chair  Pearce directed  that  SB 215  be  brought on  for                 
  discussion and referenced  a draft committee substitute  (8-                 
  LS1107\I, Chenoweth, 3/21/94).  She explained that the draft                 
  was  received  by   committee  last  evening  and   was  not                 
  distributed  for members'  review until  shortly before  the                 
  meeting.  The intent is to conduct section-by-section review                 
  by drafters, Mr.  Chenoweth and Mr.  Rogers.  The bill  will                 
  then  be held for  subsequent public testimony  later in the                 
  week.  Senator Sharp MOVED for adoption of CSSB 215 (version                 
  "I") for discussion purposes.  Senator Kerttula OBJECTED.                    
                                                                               
  JACK  CHENOWETH,  Attorney,   Legal  Services,   Legislative                 
  Affairs Agency, and  DAVID ROGERS, Contract Attorney  to the                 
  Senate Finance Committee,  came forward to speak  to changes                 
                                                                               
                                                                               
  incorporated within the new draft.                                           
                                                                               
  Mr. Rogers first  directed attention to  Secs. 1 and 5,  and                 
  explained  that  amending  provisions,  proposed by  Senator                 
  Miller, resolve  a problem identified by Senator Frank.  New                 
  language   authorizes   appropriation   of  a   portion   of                 
  reimbursements for expenditures, related to the EXXON VALDEZ                 
  oil  spill  and  contained in  the  release  contingency and                 
  abatement  mitigation account,  to  the underground  storage                 
  tank assistance fund.  (Sec. 1 contains findings, and Sec. 5                 
  contains   specific  provisions.)      The  portion   to  be                 
  appropriated is  within the  discretion of  the legislature.                 
  In  response  to  a  question   from  Co-chair  Pearce,  Mr.                 
  Chrenoweth explained that provisions within  Sec. 5 apply to                 
  "money either  already placed  there or  money that  will be                 
  placed there in the course of  the fiscal year."  Responding                 
  to a question from Senator Rieger, Mr. Chenoweth  noted that                 
  the legislature typically appropriates both  on the basis of                 
  present amounts and amounts estimated  to be received during                 
  the fiscal year.                                                             
                                                                               
  The second change,  requested by Senator Leman,  revises and                 
  corrects  an  amendment  adopted  by  the  Senate  Resources                 
  Committee which attempted to establish an inflation-proofing                 
  mechanism for the  response account.   The mechanism  allows                 
  part of the  interest earned on  the response account to  be                 
  appropriated  back  into  the account  to  maintain  the $50                 
  million balance.   Remaining interest could be  appropriated                 
  to  the  Dept.  of Environmental  Conservation  for  oil and                 
  hazardous  substance operations.   Mr.  Chenoweth referenced                 
  page 6, line  2, and explained  that the $50,000,000  figure                 
  was restored to inflation-proofing language.  Page 11, lines                 
  17  through  20, contains  language  relating  to use  of  a                 
  portion  of  the  interest  for  inflation-proofing  of  the                 
  response  account.   Sections  relating  to use  of interest                 
  earnings  for the  contingency  abatement  account  for  DEC                 
  operations are set forth at page 10, lines 5 through 11.                     
                                                                               
  In  response  to  a  question  from  Senator  Kerttula,  Mr.                 
  Chenoweth  referenced page  11, lines 19  and 20,  and noted                 
  that  language  ties  inflation  proofing  to  rates  in  AS                 
  37.13.145(c)(1) and (2)  which are "cross-referenced to  the                 
  rates that are used to inflation  proof the permanent fund."                 
  That  portion  is made  available  to the  response account.                 
  Earnings  in excess of that are available to the contingency                 
  and abatement account--the source of support for  operations                 
  in DEC.                                                                      
                                                                               
  SENATOR LEMAN  explained that  his intent  was to  inflation                 
  proof the response account.  The amendment offered in Senate                 
  Resources   accomplished  that   but  also   triggered  some                 
  unintended  consequences.     The  intent  of   the  current                 
  amendment is to  inflation proof  the account while  keeping                 
  other things in place.                                                       
                                                                               
                                                                               
  [Co-chair Frank arrived at the meeting at this time.]                        
                                                                               
  Further discussion  followed between Senator  Rieger and Mr.                 
  Chenoweth regarding inflation proofing and the triggering of                 
  the surcharge.  Mr. Chenoweth stressed that changes at pages                 
  10 and 11 direct  that interest earned on investment  of 470                 
  fund moneys  be first used  to inflation proof  the response                 
  fund.  Remaining  interest amounts will then be  credited to                 
  the contingency and abatement mitigation  account.  There is                 
  no direct relationship between page 6 provisions relating to                 
  operation of the surcharge and language providing for use of                 
  interest earnings set forth at pages 10 and 11.                              
                                                                               
  Mr. Rogers explained that the third change, requested by Co-                 
  chair Pearce, is incorporated  at page 9, Sec. 15,  and page                 
  14, lines 2 through 6 (subparagraph v.).                                     
                                                                               
  [Senator Kelly arrived at this time.]                                        
                                                                               
  Co-chair  Pearce  explained that  because  of  problems with                 
  statutory language relating to the 470 fund, use of  capital                 
  moneys provided by the  legislature last year for the  Dept.                 
  of  Military  and  Veterans Affairs'  emergency  center  was                 
  disallowed  by  the Office  of Management  and Budget.   New                 
  language would  allow the legislature  to use 470  funds for                 
  "acquisition,  repair, and improvement of assets or disaster                 
  emergency preparedness."   Language is  narrowly defined  to                 
  preclude use of 470 moneys  for new ferries, buildings, etc.                 
                                                                               
                                                                               
  Mr. Rogers next directed attention to  page 16, lines 21 and                 
  22, where  the phrase  "and the  response under  way by  the                 
  department" was added to Sec. 22.  The report, required as a                 
  precondition  to  obtaining an  administrative order  to use                 
  money from the response fund,  previously related to release                 
  or threatened release of hazardous substances.  New language                 
  requires  that  the  report also  discuss  response  efforts                 
  underway  at the time.   Co-chair Pearce  explained that she                 
  proposed the change because she could see "absolutely no way                 
  a governor could make  a decision whether to stop  action if                 
  he doesn't have any idea what action is being taken."                        
                                                                               
  Mr. Rogers next referenced a  series of technical amendments                 
  proposed by Mr. Chenoweth.  Mr. Chenoweth directed attention                 
  to  new Sec. 2 and explained  that it relates to response at                 
  the  municipal  level.   It  was  deemed wise  to  revise AS                 
  29.60.510(a) to take into account  changes in the manner  in                 
  which moneys may  be removed from  the response account  and                 
  the 120-hour report  requirement.   Other changes relate  to                 
  shortened references by referring to the  "response account"                 
  and "the contingency and abatement account."                                 
                                                                               
  Directing  attention  to  page 2,  line  11,  Senator Rieger                 
                                                                               
                                                                               
  inquired concerning  the reference  to "commissioner."   Mr.                 
  Chenoweth  explained that under  AS 29.60.510, the reference                 
  is to the  Commissioner of  Community and Regional  Affairs.                 
  In  response to  further  questions, Mr.  Chenoweth informed                 
  members  that the  Dept. of  Environmental Conservation  has                 
  principal responsibility.  Sec. 2  provisions stem from 1989                 
  legislative action which authorized use of  a portion of the                 
  proceeds  of  the   fund  for  grants.     The  grant-making                 
  responsibility for municipalities  and villages was assigned                 
  to the Dept. of Community and Regional Affairs.                              
                                                                               
  Responding to questions regarding access to the  fund by the                 
  Dept.  of Environmental Conservation, Dept. of Community and                 
  Regional  Affairs,  and  Dept.  of   Military  and  Veterans                 
  Affairs,  Mr.  Chenoweth  reiterated   that  the  Dept.   of                 
  Environmental  Conservation  continues  to   have  principal                 
  responsibility  for the  fund.   The  Dept. of  Military and                 
  Veterans  Affairs will have "money out of the abatement side                 
  . . .  , based upon  appropriations made by the  legislature                 
  for things  that  Senator  Pearce  described:  the  response                 
  center in  Anchorage . . . ."    The Dept.  of Community and                 
  Regional  Affairs,  in  agreement  with  DEC,  could,  in  a                 
  response  situation, provide  grants  to municipalities  and                 
  villages.    Grants relating to  spills subject to the  120-                 
  hour  report  are drawn  from the  response account.   Other                 
  grants, for smaller spills, would  flow from the contingency                 
  and abatement account.   Mr. Chenoweth added, "What  is done                 
  in  the  contingency  and abatement  account  is  subject to                 
  specific  legislative  appropriation."    Large  spills  are                 
  responded to from the response fund, and  smaller spills are                 
  responded  to from  the contingency  and abatement  account.                 
  For  large spills,  general  appropriation language  in  the                 
  front section of the budget moving  moneys from the 470 fund                 
  into   the  response   account  is  sufficient.     Specific                 
  appropriation by the legislature is  required for everything                 
  else.                                                                        
                                                                               
  Senator  Rieger  asked  if  reimbursement  collections   for                 
  cleanup costs would automatically return to the  fund and be                 
  subject  to appropriation.    Mr.  Chenoweth explained  that                 
  division of  the fund into two accounts attempts to reassign                 
  recovered moneys  to the  respective sources.   He  directed                 
  attention to page 9, lines 19 through 28, and page 11, lines                 
  6 through 12.                                                                
                                                                               
  End:      SFC-94, #34, Side 1                                                
  Begin:    SFC-94, #34, Side 2                                                
                                                                               
  Discussion followed regarding claims and liens by the state.                 
  Mr. Chenoweth pointed to  language at page 18, Sec.  25, and                 
  noted that the  law already  provides that the  state has  a                 
  lien for expenditures from the fund.  The fact that the fund                 
  is renamed and split into two  accounts does not change that                 
  situation.  Provisions further  broaden application to allow                 
                                                                               
                                                                               
  for liens not only for  expenditures for releases/spills but                 
  for threatened releases as well.                                             
                                                                               
  BOB  POE,  Director,   Administrative  Services,  Dept.   of                 
  Environmental Conservation, came before committee, presented                 
  a  packet of  information,  and described  the  flow of  the                 
  nickel  surcharge  through three  accounts:    the surcharge                 
  account, the mitigation account, and the response fund.  Mr.                 
  Poe specifically  noted incentive provisions  within version                 
  "I" of CSSB 215 which shut off the surcharge for one year if                 
  the legislature  does not  appropriate all  of the  2.5 cent                 
  surcharge  on the catastrophic  spill side of  the split and                 
  all cost recovery related to use of the spill response fund.                 
  That language is set forth at Sec. 9, page 6, line 20.                       
                                                                               
  Discussion followed regarding past use of mitigation account                 
  funding for underground storage tanks.  Mr. Poe advised that                 
  language added  to  the bill,  at  the request  of  Co-chair                 
  Frank, does not  change the situation.   The only change  is                 
  that cost recovery  must be  identified and appropriated  to                 
  the response fund (the catastrophic  spill reserve) in order                 
  for the surcharge  to continue.   In response to a  question                 
  from  Co-chair  Pearce,  asking if  cost  recovery  could be                 
  appropriated to the  storage tank  assistance fund, Mr.  Poe                 
  indicated that cost recovery must flow to the response fund,                 
  or the  surcharge will shut off for a year.  However, moneys                 
  from fines, penalties,  and settlements may  be appropriated                 
  to  the  storage  tank fund.    Further  discussion followed                 
  between  Co-chair  Pearce and  Mr.  Poe regarding  annual $5                 
  million  expenditures from the  fund.  Mr.  Poe advised that                 
  cost recovery up to  this time has not been  great enough to                 
  reimburse a large portion of the expenditure.  Cost recovery                 
  has typically reimbursed $300.0 to $400.0 of the $5 million.                 
  That amount is expected to grow.                                             
                                                                               
  Referencing  a  flow  chart (appended  to  these  minutes as                 
  Attachment  A),  Mr. Poe  explained  that moneys  would flow                 
  through surcharge accounts, to mitigation accounts, and then                 
  into  reserves   accounts  within  the   oil  and  hazardous                 
  substance release prevention and response fund.  One reserve                 
  is the  catastrophic oil  release response  account and  the                 
  other is the oil and hazardous substance release contingency                 
  and  abatement   account.    The  catastrophic  oil  release                 
  response account is the account that will accumulate the $50                 
  million.   Past limitations  on the fund  have been  changed                 
  within  the  proposed  bill  so   that  the  100,000  barrel                 
  threshold  is  no  longer  required.   The  contingency  and                 
  abatement  account will  accumulate revenues to  cover state                 
  programs  for  spill prevention  response  as well  as other                 
  department  (DMVA,  DNR,  DF&G)  efforts  relating  thereto.                 
  Grants to  communities for  smaller spills  would also  flow                 
  from this account.                                                           
                                                                               
  Mr. Poe next directed attention  to a tabulation (Attachment                 
                                                                               
                                                                               
  B) and explained that it presents dollar amounts and revenue                 
  flows under five different scenarios.  He specifically noted                 
  that under Sec.  34 of the  draft bill, moneys presently  in                 
  the spill reserve account would be moved to the catastrophic                 
  account.     Incentives  within  the  bill   encourage  that                 
  appropriation.  That  has an important impact  in that since                 
  the spill reserve would then total more than $50 million, no                 
  further surcharge would be paid during FY 95.  The surcharge                 
  is effectively  turned off  immediately.   The third  column                 
  reflects  the   financial  situation  if  both   the  nickel                 
  surcharge and the  response fund  are split equally  between                 
  the catastrophic account  and the abatement account.   There                 
  is a valid argument for appropriating in this manner because                 
  $74.5 million of the  response fund came from general  funds                 
  appropriated to  the fund  before the  nickel surcharge  was                 
  enacted.  It is  thus appropriate that those funds  be split                 
  for dual purposes:  preventing spills as well as cleaning up                 
  spills.      An   additional   argument   for   the  divided                 
  appropriation rests  in the  fact that  provisions added  to                 
  version  "I" will  be  difficult to  finance  on 2.5  cents.                 
  Other revenue sources  will be needed.   Mr. Poe noted  that                 
  under the third  scenario, the surcharge  would shut off  at                 
  the end of the second year.                                                  
                                                                               
  Mr. Poe next  spoke to the  3-cent/2-cent spilt proposed  by                 
  the  administration   and  explained   that  scenario   four                 
  represents a  split of  both the surcharge  and the  reserve                 
  fund  balance.    Scenario  five  splits the  surcharge  but                 
  deposits the balance of the fund into the catastrophic spill                 
  account.   He noted  specifically that  scenario five  would                 
  also shut off the surcharge in the first year.                               
                                                                               
  Discussion  followed  between  Mr. Poe  and  Senator  Rieger                 
  concerning funding shown for existing statutes.                              
                                                                               
  Speaking  again to the proposed bill, Mr. Poe voiced concern                 
  that  it underfunds existing  programs for  all departments.                 
  If   spill   prevention   activities   are   expanded,   the                 
  underfunding is even greater.  Funding would be short $600.0                 
  the first  year, $800.0  the  second, $1.7  the third,  $2.4                 
  million the  fourth, and  $3.3 million  in  the fifth  year.                 
  Total underfunding over five years would equal $8.7 million.                 
  Underfunding would not occur  if the response fund  is split                 
  between catastrophic and abatement accounts.                                 
                                                                               
  Mr.  Poe  next   directed  attention  to  a   chart  showing                 
  historical spending from  the response  fund.  The  proposed                 
  bill would provide less  than the bare minimum to  support a                 
  spill prevention and  response program.  He  further pointed                 
  to a recent legislative audit which indicated that the spill                 
  prevention and  response  program, at  existing  levels,  is                 
  marginal, at best.                                                           
                                                                               
  Co-chair  Pearce  raised   questions  regarding  deposit  of                 
                                                                               
                                                                               
  interest earnings  on  the  two funds  and  advised  of  her                 
  understanding that interest  of $2.5  million would flow  to                 
  the spill account on an annual basis.  Mr. Poe observed that                 
  that  would  occur   only  if   the  legislature  chose   to                 
  appropriate  the  funds.   There  is no  legislative history                 
  supporting that appropriation.   Up  to this time,  interest                 
  has been placed in the  general fund.  Mr. Poe referenced  a                 
  graph evidencing the seventeen changes  made to existing law                 
  since imposition of  the surcharge and "how  the legislature                 
  has changed spending from the fund."                                         
                                                                               
  Directing attention to a chart  demonstrating the history of                 
  revenues and  expenditures for the fund, Mr.  Poe noted that                 
  moneys from the surcharge  were first collected in 1990  and                 
  appropriated  to  the fund  in  1991.   Prior  to  that, all                 
  revenue to the  fund flowed  from general  funds or  program                 
  receipts.  Those payments between 1987  and 1990, as well as                 
  general  funds received  since  the surcharge,  total  $76.7                 
  million.  Revenues  and expenditures shown on the chart were                 
  calculated on  a ratio  of surcharge  moneys versus  general                 
  funds.  Those ratios indicate that of the $37.4 million fund                 
  balance, 41.29% is general funds and 58.71% accrued from the                 
  nickel  surcharge.    That  supports  the   administration's                 
  argument that the $37.4 million  should be split between the                 
  abatement and mitigation account and the catastrophic  spill                 
  account.                                                                     
                                                                               
  Co-chair Pearce directed  that the bill be HELD in committee                 
  pending  public  testimony.    She  then directed  that  the                 
  meeting be  briefly recessed  prior to  proceeding with  the                 
  agenda.                                                                      
                                                                               
                       RECESS - 10:10 A.M.                                     
                     RECONVENE - 10:20 A.M.                                    
                                                                               
                                                                               
  SENATE BILL NO. 308                                                          
                                                                               
       An   Act   modifying   administrative  procedures   and                 
       decisions by  state agencies  that relate  to uses  and                 
       dispositions  of state  land, property,  and resources,                 
       and to the  interests within them,  and that relate  to                 
       land, property,  and  resources, and  to the  interests                 
       within them, that are subject to the coastal management                 
       program; and providing for an effective date.                           
                                                                               
  Upon reconvening the meeting, Co-chair Pearce announced that                 
  discussion   of   SB  308   would   constitute  subcommittee                 
  deliberation  on the  bill.   She  explained  that it  would                 
  provide  the  Dept.  of  Law an  opportunity  to  advise  of                 
  background  information  on  lawsuits  that  encouraged  the                 
  department to introduce  the legislation.  Further,  a group                 
  meeting in Anchorage has worked through discussion on two of                 
                                                                               
                                                                               
  three major portions  of the bill.   The  group has not  yet                 
  considered changes  to  Title 46.   Subsequent  subcommittee                 
  meetings will be had with working group members as suggested                 
  language  is developed  for  presentation to  committee next                 
  week.     Co-chair   Pearce   directed   attention  to   new                 
  correspondence  from various  interests which she  noted had                 
  been copied and placed in members' files.                                    
                                                                               
  End:      SFC-94, #34, Side 2                                                
  Begin:    SFC-94, #36, Side 1                                                
                                                                               
                                                                               
  KYLE PARKER, Office  of the Governor, came  before committee                 
  and  read  from   a  prepared   text  providing   background                 
  information and  a summary  of resource disposal  litigation                 
  (Mr. Parker's comments were subsequently incorporated within                 
  a memo  dated March 28,  1994, (copy appended  as Attachment                 
  D).  He explained that  the court decision in the Good  News                 
  Bay sale evidences that, absent some legislative action, the                 
  courts are driving the state  toward a federal environmental                 
  impact process.                                                              
                                                                               
  BARBARA FULLMER,  Legal Counsel,  Division of  Oil and  Gas,                 
  Dept. of  Natural Resources,  next spoke  via teleconference                 
  from  Anchorage.    She outlined  the  basics  of litigation                 
  relating to Sale 78, advising that  one day after the appeal                 
  period, the sale was appealed by a group including fishermen                 
  organizations, a local traditional council, and Trustees for                 
  Alaska.    The points  on  appeal  were quite  broad.   They                 
  claimed that the division of oil  and gas had not adequately                 
  considered the pros and  cons of the lease sale.   The state                 
  moved  for  a  more specific  accounting  of  the  points on                 
  appeal.    The  court  denied that  motion.    Court  action                 
  indicates  that  the court  is  willing to  accept anything.                 
  There was no requirement that  appellants identify what they                 
  are  appealing  or  that conjecture  appear  earlier  in the                 
  record.  Two weeks prior to the sale, appellants moved for a                 
  stay.    The court  granted that  motion,  based not  on the                 
  points  of  appeal  but  upon   apparent  court  perusal  of                 
  regulations  under  ACMP and  selection  of an  argument not                 
  raised  by  appellants.   Oral arguments  are  to be  had in                 
  September.  That time frame is after the point when the sale                 
  could properly go  forward without having to  again commence                 
  the administrative process from the beginning.                               
                                                                               
  Senator  Rieger   inquired  concerning   the  position   the                 
  administration seeks  to assert  through the  proposed bill.                 
  Barbara Fullmer explained  that the administration  hopes to                 
  ensure that the scope of review  is molded by public comment                 
  received by the  department.  It is not the  intent to limit                 
  what  the  public comments  on.   The  scope of  review must                 
  address  any  public  comments received  during  the  public                 
  comment  period.   The  cutoff point  is the  materiality of                 
  facts  and  issues raised  or known  to  the director.   The                 
                                                                               
                                                                               
  director must find that  the fact or issue is  material, and                 
  that finding must rest on the record.  Senator Rieger voiced                 
  his understanding that public comment would occur prior to a                 
  determination by the director concerning  to what extent the                 
  administrative review is limited.  He further advised of his                 
  understanding that  problems arise  when a  second round  of                 
  public  comment  is  allowed  at  the   court  level.    The                 
  department then becomes trapped when it is alleged  that the                 
  department  did not consider  something that,  in actuality,                 
  was never brought up.                                                        
                                                                               
  SENATOR SALO  commented upon difficulties associated  with a                 
  subjective  decision as  to whether something  is or  is not                 
  material.    She  then asked  if  pending  legislation would                 
  impact Sale 78.   Mr. Parker explained that, if  enacted, SB
  322  (Oil  and Gas  Lease Sales:  Schedule and  Delay) would                 
  allow the department to proceed with the sale as soon as the                 
  stay is lifted.   Mr.  Parker acknowledged that  he did  not                 
  know  when  that might  occur.   He  further noted  that the                 
  department has been in court, in some instances, up to seven                 
  years.                                                                       
                                                                               
  Senator Salo  next  inquired about  a  potential  settlement                 
  involving  removal  of  key  fishing  tracts.    JIM  EASON,                 
  Director,  Division  of  Oil  and   Gas,  Dept.  of  Natural                 
  Resources,  responded from  Anchorage.   He reiterated  that                 
  allegations in Sale 78 are very  broad.  They include claims                 
  that  the  state  failed to  properly  consider  impacts and                 
  effects on "this fishing corridor"  as well as archeological                 
  artifacts, view sheds, etc.  There  is nothing in the record                 
  to indicate  that resolution  of  any one  issue would  have                 
  avoided litigation.  That  is particularly true in light  of                 
  the diversity of interests of  appellants.  Further, to this                 
  date,  no  one has  been able  to specifically  identify the                 
  fishing corridor.                                                            
  In response  to a  further question from  Senator Salo,  Mr.                 
  Eason  acknowledged  an  offer  of  settlement presented  by                 
  Trustees for  Alaska.   Appellants have  requested that  the                 
  offer remain confidential.   The  state rejected the  offer.                 
  The state response is a matter of record.  Mr. Eason advised                 
  of  correspondence  from  Assistant  Attorney  General  Mary                 
  Lundquist rejecting the offer and  setting forth reasons for                 
  rejection.    Mr.  Eason agreed  to  provide  copies of  the                 
  correspondence (Attachment E) to committee.                                  
                                                                               
  ADJOURNMENT                                                                  
                                                                               
  The meeting was adjourned at approximately 11:05 a.m.                        
                                                                               

Document Name Date/Time Subjects