Legislature(1993 - 1994)

04/06/1993 01:00 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
  HB 167 AIR QUALITY CONTROL PROGRAM                                           
  Number 048                                                                   
  ENVIRONMENTAL LOBBY, testified that the Lobby was a                          
  coalition of 20 environmental groups.  Mr. Heath explained                   
  that the Lobby had been asked to participate in a working                    
  group to develop a proposal for the legislature to bring                     
  Alaska into conformity with the 1990 amendments to the                       
  federal Clean Air Act.  Mr. Heath further explained that the                 
  environmental community was offered one seat on a committee                  
  comprised mostly of industry representatives and that                        
  committee decisions were carried by a two-thirds vote.                       
  MR. HEATH stated that the legislation written by the working                 
  group, while not exactly what the Lobby would want, was                      
  supported by the Lobby.  Mr. Heath added that shortly after                  
  HB 39 was introduced, HB 167 was introduced, apparently on                   
  behalf of the timber industry.  Both bills had been                          
  discussed in detail by a Senate Resources subcommittee also                  
  considering SB 103 in order to produce a single bill.  Mr.                   
  Heath added that a representative of the timber industry was                 
  at the subcommittee's table when it discussed the bills.                     
  The product of that subcommittee work had been incorporated                  
  into HB 167.                                                                 
  MR. HEATH listed the following reasons that the Alaska                       
  Environmental Lobby opposed HB 167:                                          
  1)   The fee structure in HB 167 developed by the Department                 
       of Environmental Conservation (DEC) working committee                   
       subverted the key intent of the Clean Air Act, which                    
       was to reduce emissions.  The size of the fee should be                 
       tied directly to the amount emitted, providing a                        
       powerful incentive to reduce emissions.  The fee                        
       structure in HB 167 was instead based on the per-hour                   
       cost to DEC to process the permits.                                     
  2)   The "general permit" program was instituted to level                    
       the playing field for small emitters since they would                   
       have had to bear the burden of higher rates under the                   
       fee structure as it stood.  The general permit was a                    
       blanket permit which applied to all emitters of a                       
       similar type.  The problem was that at the time a                       
       general permit was developed, public review would be                    
       solicited statewide, but the public would not have an                   
       opportunity to comment when a specific business in a                    
       specific neighborhood was granted a general permit.                     
       This would close the public process.                                    
  3)   Currently, if a business was an historical violator,                    
       its permit was written for a shorter period of time so                  
       that the public had a chance to comment more frequently                 
       on its impact on the safety of the community.  The                      
       shorter permit period also provided the state with an                   
       opportunity to incorporate the best permit stipulations                 
       possible to assist the business to come into compliance                 
       with its permit.  The DEC working committee found this                  
       system to be fair, but it was removed from HB 167 and                   
       replaced with a fixed five-year permit which deleted                    
       these safeguards.                                                       
  4)   Felony penalties had been removed from the permit                       
       penalty section of HB 167.  This meant that if someone                  
       knowingly and maliciously caused a discharge which                      
       killed someone, he or she could only be charged with a                  
  5)   There were provisions in HB 167 which made it                           
       effectively impossible for state or local government to                 
       require standards more stringent than those required by                 
       the federal Clean Air Act.                                              
  Number 300                                                                   
  MR. HEATH stated that for the reasons listed above, the                      
  Lobby believed that this legislation would spawn a rat's                     
  nest of litigation and should be defeated.                                   
  Number 320                                                                   
  RESA JERREL, representing the NATIONAL FEDERATION OF                         
  INDEPENDENT BUSINESS (NFIB), spoke in favor of HB 167.  She                  
  stated that NFIB's main concern was that the DEC not go                      
  beyond the federal standards.                                                
  Number 363                                                                   
  THE ENVIRONMENT, spoke via teleconference from Anchorage in                  
  opposition to HB 167.  She stated that the DEC working group                 
  did not represent all factions interested in clean air                       
  issues.  Missing from the group were representatives from                    
  small business, public health and tourism.  The group also                   
  had as a rule that passage takes a two-thirds vote, which                    
  meant that industry had the upper hand.  Ms. Boulanger                       
  stated that her group felt that industry came to the table                   
  in good faith and with an attitude of compromise.  Because                   
  of the hard work and compromise, the product of the working                  
  group was good and fair and the Alaska Center for the                        
  Environment supported it.                                                    
  MS. BOULANGER noted, however, that HB 167 was not what came                  
  out of the working group.  Ms. Boulanger also noted that the                 
  timber industry was allowed to literally sit at the table                    
  and help craft HB 167.                                                       
  Number 483                                                                   
  CLAUDIA ECHAVAMA testified that HB 167 would not improve the                 
  air quality problems in Alaska.  Ms. Echavama believed that                  
  HB 167 should encourage reduction of pollution from                          
  businesses and motor vehicles.  Two cities in Alaska were in                 
  violation of the Clean Air Act, she said.  Ms. Echavama                      
  stated that HB 167 should be addressing not only how the                     
  state could maintain current air quality in Alaska, but how                  
  the state could go further than the status quo to clean up                   
  some problems that had already been created.                                 
  MS. ECHAVAMA noted that HB 167 decreased the amount of                       
  public participation instead of increasing it.                               
  CHAIRMAN PORTER noted that the next person to testify,                       
  CHERYL RICHARDSON, had addressed the committee at a previous                 
  hearing on HB 167 and, unless she had something to add, he                   
  would reserve her testimony.                                                 
  Number 529                                                                   
  MS. RICHARDSON stated that she was pleased that the                          
  committee was hearing this bill via teleconference and that                  
  she did not have anything to add at this time.                               
  Number 542                                                                   
  REP. MARK HANLEY, PRIME SPONSOR OF HB 167, testified that                    
  the fee structure, the general permits, and the judicial                     
  standing portion of HB 167 were a part of the working                        
  group's package.  Rep. Hanley expressed his opinion that                     
  some of the statements heard from the previous speakers were                 
  not entirely accurate.                                                       
  Number 594                                                                   
  CHAIRMAN PORTER asked MS. MARGOT KNUTH, from the DEPARTMENT                  
  OF LAW, and MR. TOM CHAPPLE, from the DEC, to join Rep.                      
  Hanley and the Judiciary Committee at the table to discuss                   
  the amendments forthcoming.                                                  
  REP. PHILLIPS moved to adopt the draft Judiciary Committee                   
  substitute dated April 2, 1993.  There being no objection,                   
  it was so ordered.                                                           
  Number 615                                                                   
  REP. NORDLUND asked that someone explain the difference                      
  between that committee substitute and an earlier draft dated                 
  April 1, 1993.                                                               
  Number 618                                                                   
  MR. CHAPPLE explained the changes which the Senate Resources                 
  subcommittee had made, and which were incorporated into the                  
  April 2, 1993, draft.                                                        
  Number 644                                                                   
  REP. DAVIDSON asked what effect these changes had.                           
  MR. CHAPPLE explained that the effect would be that the                      
  department could specify exactly what was required in                        
  specific types of applications.                                              
  Number 650                                                                   
  REP. DAVIDSON asked if this could not be done by regulation.                 
  MR. CHAPPLE commented that this bill provided for the                        
  flexibility needed in preparing applications.                                
  Number 691                                                                   
  REP. DAVIDSON asked for clarification on whether by taking                   
  out the term "monitoring" the statutes would have more or                    
  less flexibility.                                                            
  Number 696                                                                   
  REP. HANLEY stated that the bill allowed the department to                   
  ask for "other" information so that rather than utilizing                    
  the term "monitoring," the department could ask for specific                 
  Number 707                                                                   
  CHAIRMAN PORTER added that this gave DEC the authority to                    
  ask for additional information when the situation warranted.                 
  Number 713                                                                   
  REP. DAVIDSON stated his belief that taking out this                         
  particular section of statute, even with adding the                          
  flexibility of asking for "other information," lessened the                  
  overall standards, thus weakening the statute.                               
  Number 734                                                                   
  MR. CHAPPLE directed the attention of the committee to                       
  section 46.14.140 of the bill.  Mr. Chapple stated his                       
  belief that this section adequately met the federal                          
  Number 767                                                                   
  REP. HANLEY pointed out that this particular change was                      
  asked for by the DEC working group and was subsequently                      
  adopted by the Senate Resources subcommittee.                                
  Number 772                                                                   
  MR. CHAPPLE noted the clarifying changes in section                          
  Number 788                                                                   
  REP. DAVIDSON asked what set the standard for justification                  
  for the written requirement.                                                 
  Number 792                                                                   
  MR. CHAPPLE answered that there were provisions in the bill                  
  that stated that the regulations must be found reasonable                    
  based upon the best scientific information available to                      
  protect the public.                                                          
  TAPE 93-53, SIDE B                                                           
  Number 000                                                                   
  MR. CHAPPLE noted that the definition of "regulated air                      
  contaminant," which appeared on page 32 of HB 167, had been                  
  expanded in response to a comment by the Environmental                       
  Protection Agency that the previous definition was under-                    
  Number 041                                                                   
  REP. HANLEY pointed out that a definition regarding "lien                    
  expenditures" was pulled out because it was deemed                           
  Number 063                                                                   
  CHAIRMAN PORTER suggested that the committee now deal with                   
  the amendments to HB 167.                                                    
  REP. PHILLIPS  moved Amendment 1.  This amendment clarified                  
  the types of findings which had to be made before adopting                   
  regulations.  There being no objection, Amendment 1 was                      
  Number 093                                                                   
  REP. NORDLUND moved Amendment 2.  This amendment would allow                 
  for state or local governmental agencies other than the DEC                  
  to collect fees under HB 167.                                                
  Number 142                                                                   
  MS. KNUTH stated that she thought that the amendment was                     
  Number 147                                                                   
  REP. JAMES also supported the amendment but wondered about                   
  the mechanics of implementing the amendment.                                 
  Number 172                                                                   
  MR. CHAPPLE answered that HB 167 was developed with the                      
  concept that local governments would not issue separate                      
  billings.  The DEC would be the billing agency, but if a                     
  local government was a partner in reviewing permit                           
  applications, the cost incurred by it would be reflected in                  
  the bill generated by the DEC and then refunded back to the                  
  local government.                                                            
  REP. JAMES stated that the language seemed confusing.                        
  Number 192                                                                   
  REP. DAVIDSON noted that legal counsel had informed him that                 
  the amendment was probably a good idea.                                      
  Number 203                                                                   
  MS. KNUTH suggested that the committee get some advice from                  
  the Civil Division of the Department of Law.                                 
  Number 239                                                                   
  REP. NORDLUND inquired if this would create problems with                    
  duplicative billings.                                                        
  MR. CHAPPLE pointed out another section of the bill that                     
  prohibited anyone but the DEC from billing.                                  
  There being no objection, Amendment 2 was adopted.                           
  Number 274                                                                   
  REP. NORDLUND offered Amendment 3.  This amendment would                     
  prohibit a person from performing peer review for a                          
  regulation that, if adopted, would set a requirement that                    
  must be complied with by a facility owned or operated by the                 
  person or by the person's employer.                                          
  Number 292                                                                   
  REP. PHILLIPS inquired if the peer review panel changed with                 
  every permit.                                                                
  REP. NORDLUND answered that he understood it to be a                         
  different panel for each permit.                                             
  Number 303                                                                   
  MR. CHAPPLE noted that peer review would only be utilized                    
  when something was done that went beyond federal law.                        
  CHAIRMAN PORTER asked if the panels would address a                          
  particular problem in a particular circumstance or if they                   
  would be looking at a more across-the-board type of scenario                 
  which would, once decided, affect many different permits.                    
  MR. CHAPPLE answered that the panels could review a                          
  particular problem that would affect any number of                           
  permittees, but that would be a rare occurrence.                             
  There being no objection, Amendment 3 was adopted.                           
  Number 368                                                                   
  REP. NORDLUND moved Amendment 4.  This amendment would give                  
  the DEC the flexibility to issue permits for any amount of                   
  time up to five years.  Rep. Nordlund suggested that the DEC                 
  would then not be limited to giving five year permits to                     
  those permittees which had not come into compliance with the                 
  Number 393                                                                   
  REP. HANLEY noted that this issue had been discussed at the                  
  last hearing and the five year permits were thought to be                    
  MR. CHAPPLE explained in some detail the compliance section                  
  of HB 167.                                                                   
  A roll call vote was taken on Amendment 4 with the following                 
  Nordlund      yes                  Phillips      no                          
  Davidson      yes                  Green         no                          
                                     Kott          no                          
                                     James         no                          
                                     Porter        no                          
  So, Amendment 4 failed.                                                      
  Number 488                                                                   
  REP. NORDLUND moved Amendment 5 and explained that this                      
  amendment would increase the interest charged for nonpayment                 
  of penalties.                                                                
  Number 515                                                                   
  REP. HANLEY stated that the percentage rate in the present                   
  statute was meant to recoup actual costs, not to serve as a                  
  Number 532                                                                   
  REP. GREEN suggested a friendly amendment to Amendment 5 to                  
  state that the interest would be the prime interest rate                     
  plus two percent.                                                            
  REP. NORDLUND concurred with the friendly amendment to                       
  Amendment 5.                                                                 
  There being no objection, Amendment 5, as amended, was                       
  Number 564                                                                   
  REP. NORDLUND moved Amendment 6 and explained that the                       
  amendment would delete the words "private, substantive" from                 
  page 12, line 20.                                                            
  REP. NORDLUND believed that the language as it now stood was                 
  too narrow in scope and that standing to sue should be                       
  opened up to others who might be aggrieved under the law.                    
  REP. JAMES believed that it was important to define who                      
  could take action and who could not.                                         
  Number 612                                                                   
  REP. HANLEY quoted an opinion by Assistant Attorney General                  
  Robert Reges stating that he believed that the definition                    
  should be tightened up.                                                      
  A roll call vote was taken on Amendment 6 with the following                 
  Phillips    no                Davidson    absent                             
  Kott        no                Green       absent                             
  James       no                Nordlund    yes                                
  Porter      no                                                               
  So, Amendment 6 failed.                                                      
  Number 651                                                                   
  REP. NORDLUND moved Amendment 7 and explained that this                      
  would provide the public an opportunity to participate in                    
  amending and modifying permits.                                              
  REP. PHILLIPS asked if a modification of a permit would go                   
  through a peer review.                                                       
  Number 680                                                                   
  MR. CHAPPLE answered that it would not.                                      
  REP. HANLEY asked for clarification on what the federal law                  
  required regarding public participation.                                     
  Number 691                                                                   
  MR. CHAPPLE stated that he did not fully understand what was                 
  intended with Amendment 7.                                                   
  MR. CHAPPLE detailed what was currently required.                            
    1. In all cases for new permits there was a public comment                 
    2. There currently was not a public comment period for                     
       permit renewals but that would change under the new                     
       federal law.                                                            
    3. Permit amendments were reserved for minor changes such                  
       as address, name of owner, etc.; things that did not                    
       affect emissions did not require public comment.                        
    4. Minor changes to permits that did raise emission levels                 
       sometimes required public comment.                                      
    5. Significant changes to permits required public comment.                 
  MR. CHAPPLE noted again that he was unsure of what Rep.                      
  Nordlund's intentions were with Amendment 7.                                 
  TAPE 93-54, SIDE A                                                           
  Number 000                                                                   
  REP. NORDLUND stated that the intent of Amendment 7 was to                   
  give broad latitude to the DEC to decide what, if any, form                  
  of public participation would be allowed.                                    
  CHAIRMAN PORTER inquired if Rep. Nordlund intended this                      
  amendment to apply only to subsection 3.                                     
  Number 022                                                                   
  REP. NORDLUND responded that, as the amendment was currently                 
  drafted, it applied to subsections 1, 2 and 3, but that it                   
  would be best if it only applied to subsection 3.                            
  REP. PHILLIPS noted that under federal law, subsection 3                     
  already required public comment.                                             
  MR. CHAPPLE responded that Rep. Phillips was correct in her                  
  assessment, but added that there was some room for debate as                 
  to what changes to the permits would fall under subsections                  
  1, 2 and 3.                                                                  
  MR. CHAPPLE suggested that Amendment 7 not address                           
  subsection 1 and that the committee limit its discussion to                  
  subsections 2 and 3.                                                         
  Number 057                                                                   
  REP. NORDLUND asked for clarification on subsection 2.                       
  MR. CHAPPLE explained that subsection 2 was somewhat                         
  ambiguous due to pending litigation on the federal level.                    
  MR. CHAPPLE gave an example of the type of permit change                     
  that would fall under this section.                                          
  Number 123                                                                   
  REP. NORDLUND moved to modify the amendment to apply only to                 
  subsection 2.                                                                
  MR. CHAPPLE suggested that applying the amendment to                         
  subsection 3 would be redundant.                                             
  Number 137                                                                   
  REP. PHILLIPS asked what the reason was for needing this                     
  amendment to subsection 2.                                                   
  CHAIRMAN PORTER responded that the amendment would require                   
  public participation on some permit changes.                                 
  MR. CHAPPLE noted that there was litigation pending on the                   
  federal level regarding this issue.  The amendment would                     
  give DEC the authority to possibly avoid some of these                       
  Number 179                                                                   
  REP. JAMES stated that this section should not be amended to                 
  include discretionary public review as the changes covered                   
  in this section were minor.                                                  
  Number 198                                                                   
  REP. NORDLUND noted that the changes might be minor, but the                 
  amount of emissions could increase significantly.                            
  REP. DAVIDSON stated that he was in favor of Amendment 7 to                  
  encourage public participation and give DEC the discretion                   
  to ask for it when it felt necessary.                                        
  Number 227                                                                   
  REP. GREEN suggested that the word "shall" be changed to                     
  "may" in Amendment 7.                                                        
  REP. NORDLUND noted that the word "shall" applied to whether                 
  or not DEC would adopt regulations and not if they would                     
  require public participation.                                                
  Number 246                                                                   
  REP. HANLEY discussed further the use of the words "shall"                   
  and "may."                                                                   
  Number 273                                                                   
  CHAIRMAN PORTER stated that he believed that the amendment                   
  would add more confusion.                                                    
  REP. DAVIDSON wondered if, with or without the amendment,                    
  this section encouraged or discouraged public participation.                 
  Number 297                                                                   
  REP. NORDLUND moved that the amendment be amended to change                  
  the word "shall" to "may" and the word "section" to                          
  "paragraph" and delete "to implement this section."                          
  There being no objection to the amendment to Amendment 7, it                 
  was so amended.                                                              
  There being no objection to the adoption of Amendment 7 as                   
  amended, it was adopted.                                                     
  Number 340                                                                   
  REP. NORDLUND moved Amendment 8 and stated that section                      
  46.14.010 was more stringent than the federal regulations                    
  except under certain regulations and that it tied the DEC's                  
  REP. JAMES believed that the findings required under the                     
  current proposal should stand.                                               
  Number 360                                                                   
  REP. NORDLUND stated that the state needed to be responsible                 
  for its destiny and not simply rely on the federal                           
  government to set the standards.                                             
  Number 425                                                                   
  A roll call vote was taken on Amendment 8 with the following                 
  Green        no               Davidson     yes                               
  Kott         no               Nordlund     yes                               
  Phillips     no                                                              
  James        no                                                              
  Porter       no                                                              
  So, Amendment 8 failed.                                                      
  Number 447                                                                   
  MS. KNUTH testified regarding the criminal penalties HB 167                  
  would provide.  She explained that the bill gave the                         
  Department of Law all the flexibility it needed to prosecute                 
  criminal violations.  Ms. Knuth added that it was not true                   
  that HB 167 would allow what otherwise would be a felony                     
  under the law to be only prosecuted as a misdemeanor.                        
  Number 477                                                                   
  REP. PHILLIPS made a motion to move CSHB 167(JUD) as amended                 
  out of committee.  A roll call vote was taken, with the                      
  following result:                                                            
  Green      yes                 Nordlund   no                                 
  Kott       yes                 Davidson   no                                 
  Phillips   yes                                                               
  James      yes                                                               
  Porter     yes                                                               
  So, CSHB 167(JUD) was moved from committee.                                  
  CHAIRMAN PORTER announced that the committee would take up                   
  HB 93 next.                                                                  

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