Legislature(1993 - 1994)
03/17/1994 01:30 PM House FIN
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE FINANCE COMMITTEE
March 17, 1994
1:30 P.M.
TAPE HFC 94 - 65, Side 2, #000 - end.
TAPE HFC 94 - 66, Side 1, #000 - end.
TAPE HFC 94 - 66, Side 2, #000 - #431.
CALL TO ORDER
Co-Chair Larson called the House Finance Committee meeting
to order at 1:30 P.M.
PRESENT
Co-Chair Larson Representative Hoffman
Co-Chair MacLean Representative Martin
Vice-Chair Hanley Representative Navarre
Representative Brown Representative Parnell
Representative Grussendorf Representative Therriault
Representative Foster
ALSO PRESENT
Dana Zimmerman, Retirement and Benefits, Department of
Administration; Theresa L. Bannister, Legal Counsel,
Division of Legal Services, Legislative Affairs Agency;
Stephen White, Assistant Attorney General-General Civil
Section, Department of Law; Mary Sansome, Assistant Attorney
General-General Civil Section, Department of Law; Mary
Nordale, Attorney, Robertson, Monagle & Eastaugh, Juneau;
Jim Clark, General Counsel, Alaska Forest Association,
Juneau; Avrum Gross, Attorney, Juneau.
SUMMARY
SB 178 An Act relating to civil nuisance actions; and
providing for an effective date.
SB 178 was HELD in Committee for further
discussion.
SENATE BILL 178
"An Act relating to civil nuisance actions; and
providing for an effective date."
Representative Therriault provided the Committee with a
House draft for CS SB 178, 8-LS0930\I, Bannister, 3/17/94.
[Copy on file].
1
THERESA L. BANNISTER, LEGAL COUNSEL, DIVISION OF LEGAL
SERVICES, LEGISLATIVE AFFAIRS AGENCY, explained the changes
made from the previously adopted committee substitute, 8-
LS0930\D, Bannister, 2/12/94.
Representative Therriault remarked that the potential
constitutional problem of the "retroactive provision" was
addressed by the addition of a separate clause clarifying
the constitutionality of the bill for the courts. This
retroactive provision will become part of the pending
lawsuit.
STEPHEN WHITE, ASSISTANT ATTORNEY GENERAL-GENERAL CIVIL
SECTION, DEPARTMENT OF LAW, remarked that the committee
substitute would recognize the constitutionality of the
"takings" issue. Although, he added, with regard to public
"takings", the State may be held liable.
Mr. White noted that the Department of Law provided the
working group an amendment which was not incorporated into
the committee substitute. [Copy on file]. The amendment
would have required a permit, which allows immunity from
suit, that the permittee not create emission which would
cause a nuisance. The placement of that language would be
Section B-2(c) in order to immunize a facility. The purpose
of the language would further clarify the legislation's
intent.
Representative Therriault advised that the permit currently
requires that authority. Mr. White disagreed stating that
the permits do not specify those conditions although they
are implied.
MARY NORDALE, ATTORNEY, ROBERTSON, MONAGLE & EASTAUGH,
JUNEAU, responded to Assistant Attorney General White's
testimony. She referenced A.S. 18 AAC 50.110, stating that
it indicates that air pollution requires a provision of
permit. [Copy on file]. She added that the amendment was
unnecessary to the proposed legislation.
Representative Brown questioned if there would be an impact
to the permitting process without the amendment. Ms.
Nordale advised that the regulation states that no person
may emit an air omission which would constitute injury to
human health. That language is currently in regulation.
The definition of pollution is contained in Alaska Statutes,
Title 46. She added that the provision proposed by the
Department of Law would require a massive effort in
rewriting permits.
Representative Brown asserted that proper procedure has not
been followed in preparation of the proposed legislation and
2
that private interest groups have received more current
access to the legislation than the Minority. She referenced
a memo received from Mary Nordale to Marie Sansome,
Department of Law, written 3/15/94. [Copy on file].
Representative Therriault advised that the committee
substitute had been made available to all members upon
receipt. Representative Brown asked who authorized to
exclude the amendment provided by the Department of Law.
Ms. Nordell clarified that the regulations of the Department
of Environmental Conservation (DEC) require a "showing" by
the applicant for the permit that the air emissions, waste
water or solid waste discharge would not constitute
pollution or a nuisance. She added that this would be an
explicit requirement of the permit and would be required by
the proposed amendment. Discussion followed regarding the
amendment provided by the Department of Law.
Representative Brown referenced a memo received from John
Stone, Department of Law, dated 3/09/94, which stated that
the public process has never addressed "nuisance", or
provided an average individual protective standards from
nuisance. [Copy on file].
(Tape Change, HFC 94-66, Side 1).
Co-Chair MacLean MOVED TO RESCIND previous action on
adoption of committee substitute 8-LS0930\D, Bannister,
2/12/94 as the version before the Committee. There being NO
OBJECTION, it was so ordered.
Co-Chair MacLean MOVED to adopt committee substitute 8-
LS0930\I, Bannister, 3/17/94, as the current version before
the Committee. There being NO OBJECTION, it was adopted.
Co-Chair MacLean MOVED to adopt Amendment #1 as proposed by
the Department of Law. Representative Therriault questioned
the impact on the legislation.
JIM CLARK, GENERAL COUNSEL, ALASKA FOREST ASSOCIATION,
JUNEAU, advised that the Department of Law did not consider
the amendment a condition of the permit, but instead
required that the applicant make a "showing". The language
currently included in the committee substitute requires that
the word "pollution" continues to be defined so as to
prevent a nuisance.
Representative Brown pointed out that at this time the
language is not required because the law contains explicit
definition of what constitutes a "nuisance". Representative
Brown stressed that the proposed legislation should clearly
define the provisions of the permitting process. Mr. Clark
3
disagreed, stating that language exists. The "showings" are
required and the applicant must pay for them as part of the
permit condition. Discussion followed regarding the
position of the "showing" language in the legislation.
AVRUM GROSS, ATTORNEY, JUNEAU, elaborated that the proposed
legislation was brought before the Committee although the
permit process presently provides for a forum, whereby
adjoining property owners can make clear what claims exist
for the permittee. He advised that the bill is retroactive
and would attempt to protect a corporation who has a permit,
and which did not go through the process. Mr. Gross
questioned the fairness to the injured party, those who have
not had their rights adjudicated and would be forbidden from
suing even though they have never been heard. Mr. Gross
emphasized that the legislation is unfair. He urged the
Committee to adopt Amendment #1.
MARIE SANSOME, ASSISTANT ATTORNEY GENERAL-GENERAL CIVIL
SECTION, DEPARTMENT OF LAW, advised that the environmental
standards and the permitting process are designed to protect
a public nuisance and that injuries would be to the public
at large and not the specific private property owner. Many
of the environmental standards are based on the type of
equipment available to control pollution and not necessarily
what the impact of the charge would be. She added, that
many federal permits focus on technology standards,
consequently, a permit may not address the impact to the
private land owner.
Ms. Sansome pointed out that many of DEC's permits are
issued to private individuals and very small businesses.
These individuals would not be able to afford the types of
"showings" requested.
Representative Hanley asked if the legislation would address
a violation of the Department's statute. Ms. Sansome
replied, that type of provision would be effective in
nuisance suits when the discharge was specifically
authorized in the statute, although she thought it unlikely
that a general regulation or statute would operate on a
nuisance suit. Discussion followed regarding the parameters
of the word "and", Page 1, Line 10.
Representative Brown questioned if the Department should
consider whether the permitted activity would cause a
private nuisance. Representative Hanley commented that
public interest impacts private interest and that
consideration must be given to both interests as well as
protection to those who have to go through that process.
Representative Brown disagreed advising that the legislation
would create a potential liability for the State.
4
Mr. White interjected that the amendment would provide
greater clarity in the permitting process. Representative
Therriault OBJECTED to adoption of Amendment #1.
A roll call vote was taken on the MOTION.
IN FAVOR: Hoffman, Brown, MacLean, Larson.
OPPOSED: Hanley, Martin, Parnell, Therriault,
Grussendorf.
Representatives Navarre and Foster were not present for the
vote.
The MOTION FAILED (4-5).
Representative Brown MOVED to adopt Amendment #2.
Representative Therriault OBJECTED stressing that the
language was too broad. Representative Brown explained that
Amendment #2 would apply to Page 3, Line 5 and would insure
that property owners, whose rights would be affected by the
issuance of a permit, would be given notice as part of the
process in order that this situation would be considered.
Representative Parnell pointed out that public notice is
provided for all permitting actions. Ms. Sansome disagreed
stating that public notice is not given on small permits.
(Tape Change, HFC 94-66, Side 2).
Ms. Bannister stated that when something is authorized by
statute or regulation, it would be shielded by option (1),
Page 1, Line 12. Representative Brown asserted that there
are permits which could be issued and would authorize the
discharges. The public would have no opportunity to know
that this would be occurring.
Ms. Sansome added that A.S. 46.03.110 requires notice for
DEC's waste disposal permits, however, it would not cover
other items proposed. Representative Therriault understood
that other concerns would be in compliance under (2), Page
1, Line 13. Ms. Sansome reiterated that administrative
orders are not always authorized for public hearings.
Mr. Clark interjected that there are a number of permits
currently issued in which there is no requirement for public
notice. He stated that the legislation specifically
requires, after a public hearing, the intent would be made
public and notice would be given. Discussion followed
regarding the public hearing and public notice process.
A roll call vote was taken on the MOTION to adopt Amendment
5
IN FAVOR: Hoffman, Navarre, Brown, MacLean.
OPPOSED: Martin, Parnell, Therriault,
Grussendorf, Hanley, Larson.
Representative Foster was not present for the vote.
The MOTION FAILED (4-6).
Representative Brown MOVED to withdraw Amendment #3. There
being NO OBJECTION, it was so ordered.
Representative Brown MOVED to withdraw Amendment #4 which is
contained in Section (f). There being NO OBJECTION, it was
so ordered.
Representative Brown MOVED to adopt Amendment #5 to Page 3,
Lines 12-14. Representative Therriault OBJECTED.
Representative Brown commented that the legislation would
not be good public policy and would result in a lawsuit with
the retroactive clause. The amendment would add language to
make such a process more difficult.
A roll call vote was taken on the MOTION.
IN FAVOR: Navarre, Brown, Hoffman, Larson.
OPPOSED: Martin, Parnell, Therriault,
Grussendorf, Hanley, MacLean.
Representative Foster was not present for the vote.
The MOTION FAILED (4-6).
Representative Brown MOVED to adopt Amendment #6 which would
change the effective date with the intent to give time to
the court to dispose of the lawsuit which is currently
pending. Representative Therriault OBJECTED.
A roll call vote was taken on the MOTION.
IN FAVOR: Navarre, Brown, Hoffman.
OPPOSED: Parnell, Therriault, Grussendorf,
Hanley, Martin, Larson, MacLean.
Representative Foster was not present for the vote.
The MOTION FAILED (3-7).
Representative Brown MOVED to withdraw Amendment #7. There
being NO OBJECTION, it was so ordered.
6
Representative Therriault MOVED to report HCS CS SB 178
(FIN) out of Committee with individual recommendations.
Representative Brown OBJECTED stressing that the proposed
legislation was a violation of private property rights. She
emphasized that her concerns were not addressed and asked to
have more time to read the proposed committee substitute.
SB 178 was HELD in Committee for further consideration.
ADJOURNMENT
The meeting adjourned at 3:25 P.M.
HOUSE FINANCE COMMITTEE
March 17, 1994
1:30 P.M.
TAPE HFC 94 - 65, Side 2, #000 - end.
TAPE HFC 94 - 66, Side 1, #000 - end.
TAPE HFC 94 - 66, Side 2, #000 - #431.
CALL TO ORDER
Co-Chair Larson called the House Finance Committee meeting
to order at 1:30 P.M.
PRESENT
Co-Chair Larson Representative Hoffman
Co-Chair MacLean Representative Martin
Vice-Chair Hanley Representative Navarre
Representative Brown Representative Parnell
Representative Grussendorf Representative Therriault
Representative Foster
ALSO PRESENT
Dana Zimmerman, Retirement and Benefits, Department of
Administration; Theresa L. Bannister, Legal Counsel,
Division of Legal Services, Legislative Affairs Agency;
Stephen White, Assistant Attorney General-General Civil
Section, Department of Law; Mary Sansome, Assistant Attorney
General-General Civil Section, Department of Law; Mary
Nordale, Attorney, Robertson, Monagle & Eastaugh, Juneau;
Jim Clark, General Counsel, Alaska Forest Association,
Juneau; Avrum Gross, Attorney, Juneau.
SUMMARY
SB 178 An Act relating to civil nuisance actions; and
providing for an effective date.
SB 178 was HELD in Committee for further
7
discussion.
SENATE BILL 178
"An Act relating to civil nuisance actions; and
providing for an effective date."
Representative Therriault provided the Committee with a
House draft for CS SB 178, 8-LS0930\I, Bannister, 3/17/94.
[Copy on file].
THERESA L. BANNISTER, LEGAL COUNSEL, DIVISION OF LEGAL
SERVICES, LEGISLATIVE AFFAIRS AGENCY, explained the changes
made from the previously adopted committee substitute, 8-
LS0930\D, Bannister, 2/12/94.
Representative Therriault remarked that the potential
constitutional problem of the "retroactive provision" was
addressed by the addition of a separate clause clarifying
the constitutionality of the bill for the courts. This
retroactive provision will become part of the pending
lawsuit.
STEPHEN WHITE, ASSISTANT ATTORNEY GENERAL-GENERAL CIVIL
SECTION, DEPARTMENT OF LAW, remarked that the committee
substitute would recognize the constitutionality of the
"takings" issue. Although, he added, with regard to public
"takings", the State may be held liable.
Mr. White noted that the Department of Law provided the
working group an amendment which was not incorporated into
the committee substitute. [Copy on file]. The amendment
would have required a permit, which allows immunity from
suit, that the permittee not create emission which would
cause a nuisance. The placement of that language would be
Section B-2(c) in order to immunize a facility. The purpose
of the language would further clarify the legislation's
intent.
Representative Therriault advised that the permit currently
requires that authority. Mr. White disagreed stating that
the permits do not specify those conditions although they
are implied.
MARY NORDALE, ATTORNEY, ROBERTSON, MONAGLE & EASTAUGH,
JUNEAU, responded to Assistant Attorney General White's
testimony. She referenced A.S. 18 AAC 50.110, stating that
it indicates that air pollution requires a provision of
permit. [Copy on file]. She added that the amendment was
unnecessary to the proposed legislation.
Representative Brown questioned if there would be an impact
8
to the permitting process without the amendment. Ms.
Nordale advised that the regulation states that no person
may emit an air omission which would constitute injury to
human health. That language is currently in regulation.
The definition of pollution is contained in Alaska Statutes,
Title 46. She added that the provision proposed by the
Department of Law would require a massive effort in
rewriting permits.
Representative Brown asserted that proper procedure has not
been followed in preparation of the proposed legislation and
that private interest groups have received more current
access to the legislation than the Minority. She referenced
a memo received from Mary Nordale to Marie Sansome,
Department of Law, written 3/15/94. [Copy on file].
Representative Therriault advised that the committee
substitute had been made available to all members upon
receipt. Representative Brown asked who authorized to
exclude the amendment provided by the Department of Law.
Ms. Nordell clarified that the regulations of the Department
of Environmental Conservation (DEC) require a "showing" by
the applicant for the permit that the air emissions, waste
water or solid waste discharge would not constitute
pollution or a nuisance. She added that this would be an
explicit requirement of the permit and would be required by
the proposed amendment. Discussion followed regarding the
amendment provided by the Department of Law.
Representative Brown referenced a memo received from John
Stone, Department of Law, dated 3/09/94, which stated that
the public process has never addressed "nuisance", or
provided an average individual protective standards from
nuisance. [Copy on file].
(Tape Change, HFC 94-66, Side 1).
Co-Chair MacLean MOVED TO RESCIND previous action on
adoption of committee substitute 8-LS0930\D, Bannister,
2/12/94 as the version before the Committee. There being NO
OBJECTION, it was so ordered.
Co-Chair MacLean MOVED to adopt committee substitute 8-
LS0930\I, Bannister, 3/17/94, as the current version before
the Committee. There being NO OBJECTION, it was adopted.
Co-Chair MacLean MOVED to adopt Amendment #1 as proposed by
the Department of Law. Representative Therriault questioned
the impact on the legislation.
JIM CLARK, GENERAL COUNSEL, ALASKA FOREST ASSOCIATION,
JUNEAU, advised that the Department of Law did not consider
9
the amendment a condition of the permit, but instead
required that the applicant make a "showing". The language
currently included in the committee substitute requires that
the word "pollution" continues to be defined so as to
prevent a nuisance.
Representative Brown pointed out that at this time the
language is not required because the law contains explicit
definition of what constitutes a "nuisance". Representative
Brown stressed that the proposed legislation should clearly
define the provisions of the permitting process. Mr. Clark
disagreed, stating that language exists. The "showings" are
required and the applicant must pay for them as part of the
permit condition. Discussion followed regarding the
position of the "showing" language in the legislation.
AVRUM GROSS, ATTORNEY, JUNEAU, elaborated that the proposed
legislation was brought before the Committee although the
permit process presently provides for a forum, whereby
adjoining property owners can make clear what claims exist
for the permittee. He advised that the bill is retroactive
and would attempt to protect a corporation who has a permit,
and which did not go through the process. Mr. Gross
questioned the fairness to the injured party, those who have
not had their rights adjudicated and would be forbidden from
suing even though they have never been heard. Mr. Gross
emphasized that the legislation is unfair. He urged the
Committee to adopt Amendment #1.
MARIE SANSOME, ASSISTANT ATTORNEY GENERAL-GENERAL CIVIL
SECTION, DEPARTMENT OF LAW, advised that the environmental
standards and the permitting process are designed to protect
a public nuisance and that injuries would be to the public
at large and not the specific private property owner. Many
of the environmental standards are based on the type of
equipment available to control pollution and not necessarily
what the impact of the charge would be. She added, that
many federal permits focus on technology standards,
consequently, a permit may not address the impact to the
private land owner.
Ms. Sansome pointed out that many of DEC's permits are
issued to private individuals and very small businesses.
These individuals would not be able to afford the types of
"showings" requested.
Representative Hanley asked if the legislation would address
a violation of the Department's statute. Ms. Sansome
replied, that type of provision would be effective in
nuisance suits when the discharge was specifically
authorized in the statute, although she thought it unlikely
that a general regulation or statute would operate on a
10
nuisance suit. Discussion followed regarding the parameters
of the word "and", Page 1, Line 10.
Representative Brown questioned if the Department should
consider whether the permitted activity would cause a
private nuisance. Representative Hanley commented that
public interest impacts private interest and that
consideration must be given to both interests as well as
protection to those who have to go through that process.
Representative Brown disagreed advising that the legislation
would create a potential liability for the State.
Mr. White interjected that the amendment would provide
greater clarity in the permitting process. Representative
Therriault OBJECTED to adoption of Amendment #1.
A roll call vote was taken on the MOTION.
IN FAVOR: Hoffman, Brown, MacLean, Larson.
OPPOSED: Hanley, Martin, Parnell, Therriault,
Grussendorf.
Representatives Navarre and Foster were not present for the
vote.
The MOTION FAILED (4-5).
Representative Brown MOVED to adopt Amendment #2.
Representative Therriault OBJECTED stressing that the
language was too broad. Representative Brown explained that
Amendment #2 would apply to Page 3, Line 5 and would insure
that property owners, whose rights would be affected by the
issuance of a permit, would be given notice as part of the
process in order that this situation would be considered.
Representative Parnell pointed out that public notice is
provided for all permitting actions. Ms. Sansome disagreed
stating that public notice is not given on small permits.
(Tape Change, HFC 94-66, Side 2).
Ms. Bannister stated that when something is authorized by
statute or regulation, it would be shielded by option (1),
Page 1, Line 12. Representative Brown asserted that there
are permits which could be issued and would authorize the
discharges. The public would have no opportunity to know
that this would be occurring.
Ms. Sansome added that A.S. 46.03.110 requires notice for
DEC's waste disposal permits, however, it would not cover
other items proposed. Representative Therriault understood
that other concerns would be in compliance under (2), Page
11
1, Line 13. Ms. Sansome reiterated that administrative
orders are not always authorized for public hearings.
Mr. Clark interjected that there are a number of permits
currently issued in which there is no requirement for public
notice. He stated that the legislation specifically
requires, after a public hearing, the intent would be made
public and notice would be given. Discussion followed
regarding the public hearing and public notice process.
A roll call vote was taken on the MOTION to adopt Amendment
IN FAVOR: Hoffman, Navarre, Brown, MacLean.
OPPOSED: Martin, Parnell, Therriault,
Grussendorf, Hanley, Larson.
Representative Foster was not present for the vote.
The MOTION FAILED (4-6).
Representative Brown MOVED to withdraw Amendment #3. There
being NO OBJECTION, it was so ordered.
Representative Brown MOVED to withdraw Amendment #4 which is
contained in Section (f). There being NO OBJECTION, it was
so ordered.
Representative Brown MOVED to adopt Amendment #5 to Page 3,
Lines 12-14. Representative Therriault OBJECTED.
Representative Brown commented that the legislation would
not be good public policy and would result in a lawsuit with
the retroactive clause. The amendment would add language to
make such a process more difficult.
A roll call vote was taken on the MOTION.
IN FAVOR: Navarre, Brown, Hoffman, Larson.
OPPOSED: Martin, Parnell, Therriault,
Grussendorf, Hanley, MacLean.
Representative Foster was not present for the vote.
The MOTION FAILED (4-6).
Representative Brown MOVED to adopt Amendment #6 which would
change the effective date with the intent to give time to
the court to dispose of the lawsuit which is currently
pending. Representative Therriault OBJECTED.
A roll call vote was taken on the MOTION.
12
IN FAVOR: Navarre, Brown, Hoffman.
OPPOSED: Parnell, Therriault, Grussendorf,
Hanley, Martin, Larson, MacLean.
Representative Foster was not present for the vote.
The MOTION FAILED (3-7).
Representative Brown MOVED to withdraw Amendment #7. There
being NO OBJECTION, it was so ordered.
Representative Therriault MOVED to report HCS CS SB 178
(FIN) out of Committee with individual recommendations.
Representative Brown OBJECTED stressing that the proposed
legislation was a violation of private property rights. She
emphasized that her concerns were not addressed and asked to
have more time to read the proposed committee substitute.
SB 178 was HELD in Committee for further consideration.
ADJOURNMENT
The meeting adjourned at 3:25 P.M.
13
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