Legislature(1993 - 1994)

03/17/1994 01:30 PM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                                                                               
                                                                               
                     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                                              

Document Name Date/Time Subjects