03/28/2007 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB164 | |
| SB45 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 45 | TELECONFERENCED | |
| += | HB 90 | TELECONFERENCED | |
| + | HB 164 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 28, 2007
1:23 p.m.
MEMBERS PRESENT
Representative Jay Ramras, Chair
Representative Nancy Dahlstrom, Vice Chair
Representative John Coghill
Representative Bob Lynn
Representative Ralph Samuels
Representative Max Gruenberg
Representative Lindsey Holmes
MEMBERS ABSENT
All members present
OTHER LEGISLATORS PRESENT
Representative Andrea Doll
COMMITTEE CALENDAR
HOUSE BILL NO. 164
"An Act relating to reporting of vessel location by certain
commercial passenger vessels operating in the marine waters of
the state, to access to vessels by licensed marine engineers for
purposes of monitoring compliance with state and federal
requirements, and to the obligations of those engineers while
aboard the vessels; and providing for an effective date."
- HEARD AND HELD
CS FOR SENATE BILL NO. 45(JUD)
"An Act relating to murder in the first degree."
- MOVED HCS CSSB 45(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 90
"An Act relating to bail."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: HB 164
SHORT TITLE: OCEAN RANGERS & REPORTING VESSEL LOCATION
SPONSOR(S): TRANSPORTATION
02/28/07 (H) READ THE FIRST TIME - REFERRALS
02/28/07 (H) TRA, FIN
03/08/07 (H) TRA AT 1:30 PM CAPITOL 17
03/08/07 (H) Heard & Held
03/08/07 (H) MINUTE(TRA)
03/13/07 (H) TRA AT 1:30 PM CAPITOL 17
03/13/07 (H) Moved Out of Committee
03/13/07 (H) MINUTE(TRA)
03/14/07 (H) TRA RPT 2DP 1DNP 3NR
03/14/07 (H) DP: KOHRING, JOHANSEN
03/14/07 (H) DNP: DOOGAN
03/14/07 (H) NR: FAIRCLOUGH, JOHNSON, NEUMAN
03/14/07 (H) JUD REFERRAL ADDED AFTER TRA
03/28/07 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 45
SHORT TITLE: PEACE OFFICER CONVICTED OF MURDER
SPONSOR(S): SENATOR(S) OLSON
01/16/07 (S) PREFILE RELEASED 1/12/07
01/16/07 (S) READ THE FIRST TIME - REFERRALS
01/16/07 (S) STA, JUD
01/25/07 (S) STA AT 9:00 AM BELTZ 211
01/25/07 (S) Heard & Held
01/25/07 (S) MINUTE(STA)
01/30/07 (S) STA AT 9:00 AM BELTZ 211
01/30/07 (S) -- Rescheduled to 02/01/07 --
02/01/07 (S) STA AT 9:00 AM BELTZ 211
02/01/07 (S) Moved CSSB 45(STA) Out of Committee
02/01/07 (S) MINUTE(STA)
02/02/07 (S) STA RPT CS 4DP 1AM SAME TITLE
02/02/07 (S) DP: MCGUIRE, STEVENS, GREEN, BUNDE
02/02/07 (S) AM: FRENCH
02/05/07 (S) JUD AT 1:30 PM BELTZ 211
02/05/07 (S) -- Meeting Canceled --
02/08/07 (S) JUD AT 3:30 PM BUTROVICH 205
02/08/07 (S) Moved CSSB 45(JUD) Out of Committee
02/08/07 (S) MINUTE(JUD)
02/12/07 (S) JUD RPT CS 1DP 3NR 1AM SAME TITLE
02/12/07 (S) DP: FRENCH
02/12/07 (S) NR: THERRIAULT, WIELECHOWSKI, HUGGINS
02/12/07 (S) AM: MCGUIRE
03/02/07 (S) ENGROSSED
03/05/07 (S) TRANSMITTED TO (H)
03/05/07 (S) VERSION: CSSB 45(JUD)
03/07/07 (H) READ THE FIRST TIME - REFERRALS
03/07/07 (H) JUD
03/28/07 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE KYLE JOHANSEN
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: As chair of the House Transportation
Standing Committee, sponsor of HB 164, presented the bill and
responded to questions.
CHIP THOMA
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 164, provided
comments and responded to questions.
RANDALL RUARO, Staff
to Representative Kyle Johansen
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 164, provided
comments on behalf of Representative Johansen, chair of the
House Transportation Standing Committee, sponsor of HB 164.
DON HABEGER
Royal Caribbean Cruises, Ltd., and Celebrity Cruises, Inc.
Juneau, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 164.
DAVID OTNESS
(No address provided)
POSITION STATEMENT: Provided comments during discussion of
HB 164.
GERSHON COHEN
Haines, Alaska
POSITION STATEMENT: During discussion of HB 164, provided
comments as one of the joint prime sponsors of the ballot
initiative pertaining to cruise ship taxation, regulation, and
disclosure.
LYNN TOMICH KENT, Director
Division of Water
Department of Environmental Conservation (DEC)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during the
discussion of HB 164.
ALLEN SOULE
Anchorage, Alaska
POSITION STATEMENT: Provided comments during the discussion of
HB 164.
JOHN SHIVELY, Vice President
Government and Community Relations
Holland America Line
Anchorage, Alaska
POSITION STATEMENT: Provided comments during the discussion of
HB 164.
SENATOR DONNY OLSON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of SB 45.
GAIL SCHUBERT, Executive Vice President & General Counsel
Bering Straits Native Corporation
(No address provided)
POSITION STATEMENT: During discussion of HB 45, provided
comments and requested that the legislation be known as the
"Sonya Ivanoff Law".
ANNE CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Responded to questions during discussion of
SB 45.
ACTION NARRATIVE
CHAIR JAY RAMRAS called the House Judiciary Standing Committee
meeting to order at 1:23:35 PM. Representatives Dahlstrom,
Coghill, Lynn, Holmes, and Ramras were present at the call to
order. Representatives Samuels and Gruenberg arrived as the
meeting was in progress. Representative Doll was also in
attendance.
HB 164 - OCEAN RANGERS & REPORTING VESSEL LOCATION
1:25:45 PM
CHAIR RAMRAS announced that the first order of business would be
HOUSE BILL NO. 164, "An Act relating to reporting of vessel
location by certain commercial passenger vessels operating in
the marine waters of the state, to access to vessels by licensed
marine engineers for purposes of monitoring compliance with
state and federal requirements, and to the obligations of those
engineers while aboard the vessels; and providing for an
effective date."
CHAIR RAMRAS mentioned that he has a [business] relationship
with members of the cruise ship industry, and that he has
disclosed that relationship with both the Alaska Public Offices
Commission and the Select Committee on Legislative Ethics.
CHAIR RAMRAS turned the gavel over to Vice Chair Dahlstrom.
1:28:34 PM
REPRESENTATIVE KYLE JOHANSEN, Alaska State Legislature, as chair
of the House Transportation Standing Committee, sponsor of HB
164, introduced the bill. He relayed that when the ballot
initiative regarding cruise ship taxation, regulation, and
disclosure passed, he became cognizant of the potential cost of
the Ocean Ranger program, adding that because of various reports
he'd read he felt that such an expenditure didn't make sense.
Through overviews, the House Transportation Standing Committee
spoke to the Department of Environmental Conservation (DEC)
regarding how the department would be implementing the program,
and to various members of the cruise ship industry regarding
what steps they've taken in the last few years to meet and
exceed the standards - pertaining to the effluent coming off the
ships - set by both federal and state regulatory agencies. The
House Transportation Standing Committee also spoke with the
contractor that the DEC hires to go on board the cruise ships,
and to a professor from the University of Alaska regarding what
actually occurs on board ships right now. Representative
Johansen said that based on the information gathered at such
meetings, the House Transportation Standing Committee chose to
introduce HB 164 to address the issues raised.
REPRESENTATIVE JOHANSEN spoke of the initiative process and
pointed out that when the legislature considers issues, it has
the advantage of getting far more information than members of
the public do when they are considering whether to pass a ballot
initiative. He relayed that the House Transportation Standing
Committee has concluded, "We could have a program that met the
intent of the people," adding that most of the debate focused on
whether [the people serving as Ocean Rangers] would be riding on
the ships between ports. He suggested that the House Judiciary
Standing Committee ought to consider the constitutionality of
[replacing the language of the ballot initiative with HB 164],
and that the language passed by initiative was not vetted as
thoroughly as any proposed language that goes through the
committee process would have been. He assured committee members
that HB 164 is intended to reflect the intent of the voters
while being practical to implement and addressing a couple of
troublesome points in the initiative language such as the fact
that only a marine engineer can serve as an Ocean Ranger; this
is a troublesome requirement because "the only pool of marine
engineers" in the state are currently already working for the
Alaska Marine Highway System (AMHS).
REPRESENTATIVE JOHANSEN offered his understanding that the
fiscal note for HB 164 pares "the program" down to only seven
employees, and that the House Finance Committee will consider,
among other things, whether those positions ought to be
contracted out.
1:36:31 PM
CHAIR RAMRAS, noting that he himself has been the sponsor of a
ballot initiative, asked whether HB 164 is actually honoring the
Ocean Ranger program or is merely stealing the guts of the
initiative from its [joint prime] sponsors.
REPRESENTATIVE JOHANSEN offered his belief that the cruise ship
initiative was "sold" to the public as $50-head tax, and that it
doesn't apply to certain class and size cruise ships or to AMHS
vessels. He noted that the Alaska State Constitution says that
the legislature has the ability to amend, at any time, adopted
ballot initiatives, and offered his belief that ballot
initiatives don't go through the same drafting process as
legislation and are thus poorly written. He said that the DEC,
for example, has testified that it received no direction from
the initiative regarding how to implement the program, and so
his goal is to fine tune the policy adopted by the voters and
make implementation of the [Ocean Ranger] program practical. If
there isn't actually a problem [occurring on cruise ships], then
the legislature ought to be able to tailor the program to fit
the goals of the initiative, he opined.
1:42:44 PM
CHAIR RAMRAS asked whether, if HB 164 is adopted, the onboard
monitoring of vessels at sea would change to merely having the
U.S. Coast Guard receiving an hourly report via Global
Positioning System (GPS) and having the Ocean Rangers boarding
ships only while at port. If so, he questioned, would that be
undermining the will of the voters.
REPRESENTATIVE JOHANSEN [to the latter question] said he does
not think it would. Mentioning that he rarely reads the
entirety of a voter pamphlet, he opined that what the voters
wanted was to have the water that comes out of the cruise ships
meet or exceed all of the standards set by both the state and
federal government - that's the bottom line for clean water and
healthy fish. If this can be accomplished without spending $3.7
million, then it's something that he can support, he added.
REPRESENTATIVE LYNN said he likes to think that the voters are
casting informed votes, and he is not willing to question the
motives of the voters when they vote a particular way.
REPRESENTATIVE JOHANSEN surmised that whether voters understood
what they were voting on is now a moot point because the ballot
initiative did pass and is now being put into law. He said of
the ballot initiative language that it is not well drafted, that
it doesn't take certain information into consideration, and that
it is not workable for the state.
1:48:25 PM
CHAIR RAMRAS pointed out that although the different aspects of
the ballot initiative were severable, voters were required to
vote on the initiative in its entirety. One portion imposed a
$46 per-passenger per-voyage tax on commercial passenger vessels
with 250 or more berths, and one portion imposed a $4 per-
passenger per-voyage fee [to fund the Ocean Ranger program]. He
noted that the language under number "2" of the statement in
support of the initiative says:
Meet Alaska water quality standards - Alaskans need
clean water and healthy fish. Cruise ships are the
only major polluters not required to have a discharge
permit and meet ALL Alaska water quality standards.
Everyone else has a permit; no new permitting program
is necessary. Nearly every major cruise line has
felony convictions for dumping, tampering with
pollution control equipment, or falsifying documents
to the Coast Guard. This initiative places an
independent marine engineer observer on every ship
(paid through the passenger tax) to monitor
discharges, inspect equipment, and verify logbook
entries. The cruise lines have proven they cannot be
trusted to help keep Alaska's waters clean and
productive.
CHAIR RAMRAS said that the cruise ship industry that he knows
continues to improve its record of achievement in maintaining
clean water and taking care of fish habitats, adding that as a
restaurant owner he doesn't need an employee of the DEC to be on
hand in his kitchen to monitor the substances he pours down his
grease trap. He offered his belief that the will of the people
can be maintained, and that the bill can be modified via
amendment to allocate the balance of Ocean Ranger fee funds to
address the will of the people in a constructive fashion. He
thanked the bill sponsor for attempting to measure the people's
resources while maintaining the intent of the Ocean Ranger fund.
The amendment he will be offering, he relayed, will better honor
the intent of the people without providing for redundant
monitoring. He offered his belief that the cruise ship industry
has learned from its mistakes over the years and now has an
exemplary record.
REPRESENTATIVE JOHANSEN, referring to testimony heard in the
House Transportation Standing Committee, remarked that there is
quite a difference between the way cruise ships operated in the
past and how they've been operating since the laws were changed
significantly in the year 2000. He offered his hope that the
House Judiciary Standing Committee will focus its attention on
the constitutional issue pertaining to amending a ballot
initiative.
1:54:04 PM
CHIP THOMA relayed that he's provided members with additional
information for their packets, that he's a supporter of the
initiative and was involved in helping it get passed, that he
was involved with what he called the "cruise ship initiative"
that Governor Knowles "put together in the mid-90s," and that he
is very aware of the issues involving the cruise ships - the
issues that were the basis for the recent initiative. He
pointed out that 81,000 people voted to pass the initiative,
that [the Ocean Ranger program] is fully paid for and supported
by cruise ship passengers, and that every poll of passengers has
shown wide-spread support for "these antipollution measures
worldwide." He said this information raises the question of,
what is the cruise ship industry so afraid of, and suggested
that what it fears is having someone onboard while the ships are
running between ports; this is because sewage is discharged at
night, and the whole purpose of the [Ocean Ranger program] is to
have someone onboard the ships to observe that discharge.
MR. THOMA posited that the ballot initiative language does not
require "24/7 coverage." "We only want them there observing the
discharges," he remarked; consequently, only one ranger is
required per ship and he/she needn't stay on the ship while it
is in port. There is plenty of money in the program to provide
for this sort of monitoring. Most of the exaggerated costs, he
relayed, are associated with paying the ships $3,000 per week
for each observer to have a berth and meals. That is the stem
of the budget problem; without paying that unnecessary cost, the
state could save $1.5 million.
MR. THOMA offered his understanding that there has been a very
successful fisheries observer program in the North Pacific for
30 years and this program has never been a burden on the
industry. He expressed his hope that the governor and the
legislature will support the initiative process, adding that the
Alaska voters and cruise ship passengers approve of "this
measure," and that there are adequate funds for the program.
The onboard observer program [established by] the initiative is
vital in order to "trust but verify" the actions of foreign-
owned cruise ships as they do business in Alaska's waters. He
pointed out that pages 12 and 13 of the voter pamphlet contain
extensive language by both the Legislative Affairs Agency and
the DEC regarding the marine engineers that would serve as Ocean
Rangers, that the initiative's statutory language pertaining to
Ocean Rangers is located on page 17, and that the statement in
support and the statement in opposition to the initiative can be
found on pages 19 and 20.
MR. THOMA said that according to the initiative's sponsors,
polling done before the vote indicated that the highest approval
was specifically for the Ocean Ranger program. The people of
Alaska want to see that discharges are being made properly and
that there aren't any [extra] pipes under the sewage systems
like there were in the past. He mentioned that the reason he
became involved in this issue is that before the year 2000, the
ships' sewage systems, in almost every case, were not working
and were not properly maintained; the ships were therefore
targeting and dumping [untreated] sewage into what he referred
to as "doughnut holes" - home to a lot of fish and a lot of
whales - throughout the waters of Southeast Alaska, and because
these locations were three miles offshore, federal law allowed
the dumping. That practice ended due to efforts made by then-
U.S. Senator Frank Murkowski, and the goal of [current efforts
like the ballot initiative] is to ensure that such dumping never
happens again.
VICE CHAIR DAHLSTROM asked whether he is one of the sponsors of
the ballot initiative.
MR. THOMA said he is not. In response to questions, he offered
his belief that voters, particularly those in Southeast Alaska,
were voting to clean up cruise ships, that the issue wasn't
about taxing visitors to the state, and that the Ocean Ranger
program can probably function on only $2.5 million per year.
CHAIR RAMRAS opined that all that is needed is to monitor the
effluent and wastewater systems currently in place on cruise
ships to ensure that they are working, and that this can be done
while the ships are in port, thereby allowing any extra money to
be redirected to further honor the intent of the ballot measure
- that being to have clean oceans and healthy fish.
MR. THOMA, in response to a further question, explained that his
interest in the subject stemmed from the realization that [at
one point in time] members of the cruise ship industry were
lying about whether their sewage treatment systems were working;
once these lies were brought to light, members of the industry
immediately took steps to fix their systems. The Ocean Ranger
program is meant to provide a "trust but verify" situation with
regard to cruise ships and their discharge practices.
[Following was a brief discussion regarding how the committee
would be proceeding with regard to testimony.]
2:06:26 PM
RANDALL RUARO, Staff to Representative Kyle Johansen, Alaska
State Legislature, said, on behalf of Representative Johansen,
chair of the House Transportation Standing Committee, sponsor of
HB 164, that HB 164 is a reasonable response to the risks posed
to Alaska's waters by the cruise ship industry because the fleet
has recently been transformed dramatically such that 24 out of
29 vessels will be operating with advanced wastewater systems,
systems so efficient that they've been found by both the DEC and
the Environmental Protection Agency (EPA) to transform effluent
into clean water. Furthermore, the DEC, in its 2/9/04 report,
says that since the passage of "the Alaska cruise ship laws,"
large cruise ships have installed advanced wastewater treatment
systems that meet the U.S. Coast Guard's stringent requirements
pertaining to continuous discharge; that the wastewater quality
on large ships has improved dramatically; and that the
wastewater samples taken indicate that the wastewater is not
expected to cause toxicity to the marine environment and will
pose no human health risk. Similar results were garnered by
testing conducted by the EPA. Therefore, Mr. Ruaro opined,
today's cruise ship fleet is now completely different from the
fleet that Mr. Thoma became familiar with [when he began his
work on this issue].
REPRESENTATIVE COGHILL pondered whether it was the initiative
that generated the aforementioned fleet makeover.
2:11:39 PM
DON HABEGER, Royal Caribbean Cruises, Ltd., and Celebrity
Cruises, Inc., said that the state, at one time, responded to a
practice that is no longer part of the cruise ship industry,
that practice being the bypass of oily water separators. The
aforementioned felonies pertained to that practice, not to the
treatment of wastewater. However, even before that point in
time, the industry engaged in a common practice that was in
compliance with both international law and federal law, that
practice being that beyond either "the three-mile land mark" or
state waters, ships could discharge wastewater - both black and
gray wastewater. When the state brought its concern regarding
this practice to the industry, the industry agreed to dialog
with the DEC and stakeholder groups; this dialog led to some
investigative work wherein the "type two" marine sanitation
devices (MSDs) used at that time were found to produce "high
counts." In response, the state passed legislation, as did the
federal government, that prohibited discharging in the Alexander
Archipelago unless [the discharge] met certain standards. Via
research and development efforts, new technology was developed,
and his organization has committed $100 million to installing
the new technology in its whole fleet and anticipates being 100
percent compliant by next year.
MR. HABEGER, in response to a question, explained that at one
time, the "type two MSD" met the Coast Guard standard for marine
sanitation devices; that gray water comes from sinks,
washbasins, and galleys; that black water comes from urinals and
toilets; and that most ships handle gray and black water
separately though some do handle them together.
2:16:56 PM
DAVID OTNESS - after relaying that he is originally from
Petersburg, that his grandfather began fishing out of Petersburg
around the year 1910, and that he has been on the water his
whole life - said he is now engaged in shellfish mariculture.
He proffered that if any members were able to partake in the
"feed" put on by the Alaska Shellfish Growers Association
(ASGA), then they can appreciate how clean [the ASGA] wants to
keep Alaska's waters, particularly when selling raw products.
He mentioned that he is in the U.S. Merchant Marines currently
serving as a captain, also sails as an unlicensed engineer, and
has been following this issue pretty closely. He said he
continues to question the industry regarding whether it is
really "stepping up to the plate and doing what's right."
MR. OTNESS pointed out, for example, that when the
representative from the cruise ship industry gave an explanation
of what constitutes black water, Mr. Otness said the
representative neglected to mention that a large amount of
"photo chemicals" were also dumped in the waters that
constituted the fishing grounds of Mr. Otness's grandfather.
Even as recently as last year, Mr. Otness relayed, a friend of
his who was shrimp trawling in Wells Passage hauled up a whole
net full of "chef-cut cantaloupe and various melons"; the
dumping of such material is completely against the law and has
been since the 1980s. He mentioned the large volume of
passengers that cruise ships carry and the volume of sewage
created by those passengers, adding that [Alaskans] have had bad
luck with cruise ships and their discharging practices.
MR. OTNESS said the intent of the ballot initiative was clear,
and that members of the cruise ship industry have not proven to
be trustworthy enough for [citizens such as himself] to believe
them. As Mr. Thoma said, Mr. Otness remarked, "trust but
verify," and opined that [the Ocean Ranger program] is a pretty
cheap way of doing that. Discharging by cruise ships doesn't
occur at the dock, and so it is not redundant to have an Ocean
Ranger monitor a cruise ship while it is out of port, because
that is when discharging occurs. Although cruise ships are now
using the aforementioned new treatment systems, they will only
produce clean effluent when they are functioning, and given that
such systems can break down, he said he questions whether the
cruise ships have the capacity to hold all their sewage while
traveling through Alaska's waters - the answers to such
questions will only come to light if there are observers aboard
ship. In conclusion, he suggested that if the legislature
attempts to change the [ballot initiative], there will be many
who will fight against such a change.
REPRESENTATIVE GRUENBERG indicated that he has questions
regarding the state of the technology being used and why
engineers, specifically, are needed on board the cruise ships.
He noted that the summary on page 13 of the voter pamphlet says
in part: "Two marine engineers working alternating twelve-hour
ships would be placed on each cruise ship operating in Alaska
waters." This language appears to be somewhat at odds with Mr.
Thoma's comments about merely having observers [monitor the
ships while they are between ports], Representative Gruenberg
remarked.
2:22:57 PM
GERSHON COHEN explained that he is one of the joint prime
sponsors of the ballot initiative, and mentioned that they'd had
one of the most remarkable signature drives in that they'd spent
the least amount of money and had more districts represented
than any other ballot initiative to date. He relayed that the
"single subject rule" was originally raised when the ballot
initiative was submitted, and the attorney general reviewed the
initiative for five months and came back with a finding that it
did meet the single subject rule. Mr. Cohen said he was
troubled by Representative Johansen's comment that he didn't
actually read all the information available in the voter
pamphlet. With regard to the comment that the ballot initiative
was "sold" as a $50 head tax, Mr. Cohen pointed out that prior
to the election, the industry regularly made great efforts to
tell the voting public about all the different aspects of the
initiative.
MR. COHEN, with regard to the comment that there was an over
sight with regard to the AMHS and small ships, explained that
the ballot initiative was submitted in 2003, and the law
exempting small ships and the AMHS law passed in 2004, but by
that point the language in the initiative was already set;
should the legislature wish to remedy that issue, he remarked,
the initiative's sponsors would be amenable. He pointed out
that the concern the ballot initiative sponsors' have is one of
scale - the discharge from small boats with small numbers of
passengers doesn't matter to the same extent as the discharge
from ships carrying 5,000 to 7,000 passengers, particularly when
the treatment system onboard a cruise ship is not functioning.
MR. COHEN, with regard to the comment that there are not enough
engineers, remarked:
Unfortunately [the] DEC didn't really do very much
from the time that this measure passed back in August
until January, and now ... they seem to be getting
more up to speed in terms of getting these programs -
both this program and the permitting program - lined
out, and it's our belief that there are actually
plenty of engineers out there; if [the DEC] put out [a
request for proposals (RFP)] to a management firm that
does these types of services, [the DEC] will find that
we're not going to be robbing Peter to pay Paul here
in taking engineers off the ferries.
MR. COHEN, with regard to why the initiative's sponsors felt the
initiative was necessary, said the concern centered not so much
on the fact that the levels of fecal coliform bacteria being
discharged were way over the limit, but on the fact that the
cruise ship industry was using the gray wastewater and black
wastewater streams to mask the other chemicals that were being
dumped - for example, photo chemicals and dry cleaning fluids.
MR. COHEN opined that if the legislature amends an initiative to
the point of taking away its intent, the legislature is
essentially repealing the initiative - which is prohibited by
the Alaska State Constitution - and offered his belief that if
HB 164 passes as currently written, then it will be found to be
unconstitutional. He went on to say:
There seems to be a great confusion about the
difference between observing and testing. ... Other
portions of the new law directly address how often
sampling will be performed and what standards must be
attained for compliance. The Ocean Ranger program is
not primarily about testing - it is about observing.
As Chip Thoma mentioned earlier, for over 30 years
we've had observers in the open ocean fishing fleet.
I first came to Alaska in 1981 as an observer on a
Korean stern trawler in the Bering Sea; I moved here
permanently just over a year later. There's no doubt
in my mind that my presence on that foreign ship
helped stop the illegal capture of Alaska halibut,
crab, and salmon. And this is the main function of
the Ocean Ranger program; their presence will go a
long way [toward] deterring future failures of [the
cruise ship industry] to comply with our discharge
regulations. As has been mentioned, they've been
convicted on multiple occasions for dumping, and
[have] multiple felony convictions.
One of the issues that's always raised to me by folks
who are talking to me about this issue is that, "Well,
that was then and this is now, and why is this still
an issue to you - why do you still not trust the
cruise [ship] industry?" Well, I'll give you one very
recent example: Just a couple of months ago, a ship
in the south pacific - that is, a "P&O ship," ...
which is a subsidiary of Carnival Cruise lines, as is
Holland America and Princess and others - knowingly
contracted with a local person on a little island in
the south pacific ... called Vanuatu ... to remove
hundreds of thousands of gallons of oil sludge that
they were supposed to be taking to Australia to be
treated, and ... dumped them on that island. They
paid this guy to come meet the ship with a (indisc.)
truck and he took these ... hundreds of thousands of
gallons of oil sludge [and dumped them] ... into a
large ... hole in the volcanic rock on this island,
and the people on the island are so furious at this
point that to my knowledge they are still not picking
up passengers at the dock with the taxis and the
buses.
MR. COHEN said that the issue is not whether the cruise ship
industry is doing this sort of dumping in Alaska but rather
whether there is a corporate ethic, and has it existed for many
years, that would give Alaskans concern that although the ships
might have the equipment on board to perhaps do a good job of
treating the ship's waste, will that equipment actually be used,
particularly when no one is watching. The Ocean Ranger program
was included in the ballot measure because it is not sufficient
to simply have someone inspect the ships while they are in port;
someone must be on the ships at all times while they are in
Alaska waters because the industry has shown that it attempts to
get away with illegal dumping and discharge whenever possible.
MR. HABEGER, in response to a question, concurred that when his
company was discharging black wastewater beyond the three-mile
limit in Alaska, doing so was permissible at that time.
MR. COHEN asserted that the exemption under the Clean Water Act
that the industry has been claiming in order to be able to
discharge without a permit was never intended for use by ships
carrying 5,000 passengers - the exemption was intended to be
used by fishing boats and cargo ships.
2:34:13 PM
LYNN TOMICH KENT, Director, Division of Water, Department of
Environmental Conservation (DEC), in response to a question,
explained that the current cruise ship program that the DEC runs
includes annual registration - available online - for both large
and small cruise ships; that there are regulatory requirements
in place which limit the quality of wastewater discharges from
vessels; that there is a requirement for vessel-specific
sampling plans which will require the monitoring of wastewater
discharges two times per calendar year; that that data, which is
collected by independent third parties, is reported to the DEC;
that vessels must record the dates, times, locations, volumes,
and flow rates of sewage, gray water, and other wastes into
Alaska's waters; that cruise ship companies must make those
records available to the DEC; that the DEC does conduct
independent inspections of vessels, usually while they are in
port; that the DEC takes "visible emission readings" from the
smokestacks while ships are in port; that when necessary, the
DEC does take enforcement actions; and that occasionally the DEC
will conduct other types of studies.
MS. KENT, in response to a further question, said that the DEC,
to a certain extent, has the ability to conduct unannounced,
random inspections while ships are underway, but doing so is
challenging because of security issues. On rare occasions, DEC
staff have traveled with the vessel. The Ocean Ranger program
as provided for via the initiative included requirements that go
beyond what the DEC currently does; she offered her
understanding that there is a requirement that an Ocean Ranger
be on board a vessel when it enters "marine waters," and that
the Ocean Ranger is supposed to observe - for the purpose of
monitoring - state and federal requirements for marine discharge
and pollution requirements and ensure that passengers, crew, and
residents at port are protected from improper sanitation,
health, and safety practices.
MS. KENT, in response to another question, said that U.S. Coast
Guard licensed marine engineers, which are referenced in
Sections 2 and 3 of HB 164, are generally trained at a maritime
academy and have sufficient sea time and experience with vessel
power and propulsion systems. Although such personnel come with
a lot of training and significant experience, they are not
trained in the environmental and public health rules necessary
for acting as observers on cruise ships; therefore there is
still a significant training issue that must be addressed.
REPRESENTATIVE GRUENBERG asked what efforts the DEC is making to
comply with the initiative, what the cost of complying will be,
and how long the process of complying will take.
MS. KENT relayed that last fall the DEC put in a budget request
to fund the Ocean Ranger program, and "hired and completed a
contracted report for a contractor" to help the DEC consider
options for placing Ocean Rangers on board vessels; for example,
options pertaining to training requirements, scheduling, and
logistics. Currently, the DEC is working on a contract to
implement the Ocean Ranger program, and intends to "ramp up" the
program - as it was passed by the voters via the initiative - as
quickly as possible.
2:41:08 PM
MR. RUARO, responding to a question regarding the capacity of
the aforementioned advanced wastewater systems, said that
testimony [heard in the House Transportation Standing Committee]
indicates that ships often have two to three times, and
sometimes ten times, the capacity of the average daily flow of
waste from the ship, and that no ship operates without at least
two systems in place. He also mentioned that the 27 large
cruise ships which operated in Alaska in 2006 were inspected a
total of 403 times by U.S. health inspectors, and passed all but
five of those inspections.
CHAIR RAMRAS asked whether the text found under "FACT #5" of the
document provided in members' packets entitled, "Statement of
Facts from Testimony and Documents Presented to the House
Transportation Committee, EPA Records, and U.S. Public Health
Service Records Showing the Risk to Alaska From Wastewater
Pollution or Health and Sanitation Issues by Today's Fleet of
Large Cruise Ships is Very Low" provides an accurate
representation of what the DEC does.
MS. KENT indicated that that text appears to be accurate.
REPRESENTATIVE GRUENBERG asked why an Ocean Ranger program is
necessary or beneficial, given that all "these various systems"
are supposedly in place.
MS. KENT said the DEC is simply responding to the requirements
outlined in the ballot initiative, which go beyond what the DEC
is currently required to do.
REPRESENTATIVE GRUENBERG asked whether the DEC has taken a
position regarding whether the Ocean Ranger program is necessary
or beneficial.
VICE CHAIR DAHLSTROM reiterated that the DEC is merely
responding to the ballot initiative, and surmised that the DEC
is not in a position to comment on how it feels about the Ocean
Ranger program.
2:50:16 PM
ALLEN SOULE said he voted for the ballot initiative, and relayed
that he has some concerns regarding the Ocean Ranger program.
He offered his belief that the ballot initiative passed because
the people wanted the extra security and comfort of knowing that
the waters of Alaska are being protected, and so to remove the
Ocean Ranger program would be doing a disservice to the voters;
regardless that perhaps the Ocean Ranger program might need to
be adjusted, to simply remove it would not be honoring the
wishes of the voters. Mentioning that he has worked with the
U.S. Corps of Engineers and that it too at times has faced a
shortage of trained personnel, he suggested that the DEC ought
to be able to train sufficient personnel in order to make the
Ocean Ranger program workable. In conclusion, he said he wants
to believe that the legislature will do the right thing and will
work through the difficulties posed by the ballot initiative.
2:55:13 PM
JOHN SHIVELY, Vice President, Government and Community
Relations, Holland America Line, said that the company has
operated under standards set by the federal government and has
met those standards. He opined that the manpower issue is an
important one, remarking that in order to be certified by the
U.S. Coast Guard as a marine engineer, one must have extensive
training and experience, particularly when serving as an Ocean
Ranger. He offered his belief HB 164 makes sense because the
DEC can train a lesser number of people and obtain the necessary
information. In conclusion, he remarked that cruise ships also
discharge during the day, not just at night as some have
claimed, and, in some cases, with the right equipment, are
allowed to discharge wastewater continually. In response to a
question, he said there is a cost to his company for the Ocean
Ranger program because the person will have to be supervised by
ship personnel due to security considerations.
MR. COHEN, in response to a question, said that the [joint prime
sponsors] of the ballot initiative are himself and Joe Geldhof.
VICE CHAIR DAHLSTROM, after ascertaining that no one else wished
to testify, closed public testimony on HB 164.
2:59:17 PM
CHAIR RAMRAS referred to Amendment 1, labeled 25-LS0585\A.1,
Kane, 3/28/07, which read:
Page 1, line 4, following "vessels;":
Insert "creating the Alaska ocean protection and
enhancement fund and the Alaska ocean protection and
enhancement program;"
Page 2, following line 21:
Insert a new bill section to read:
"* Sec. 4. AS 46.03 is amended by adding new
sections to read:
Sec. 46.03.483. Alaska ocean protection and
enhancement fund. (a) The Alaska ocean protection and
enhancement fund is established as a sub-account in
the commercial passenger vessel environmental
compliance fund established in AS 46.03.482.
(b) The sub-account established in (a) of this
section consists of the following, all of which shall
be deposited in the sub-account on receipt:
(1) money received by the department in
payment for fees under AS 46.03.480(d);
(2) money appropriated to the sub-account
by the legislature;
(3) money received by the department from
private sources to be expended on the Alaska ocean
protection and enhancement program established in
AS 46.03.484; and
(4) earnings on the sub-account.
(c) The legislature may make appropriations from
the sub-account to
(1) pay for the Ocean Ranger program
established in AS 46.03.476;
(2) fund grants under the Alaska ocean
protection and enhancement program established in
AS 46.03.484; and
(3) fund the activities of the Alaska Ocean
Protection and Enhancement Advisory Board established
in AS 46.03.484(b).
(d) Nothing in this section creates a dedicated
fund.
Sec. 46.03.484. Alaska ocean protection and
enhancement program. (a) There is established in the
department the Alaska ocean protection and enhancement
program. The commissioner may, in consultation with
the Alaska Ocean Protection and Enhancement Advisory
Board established in (b) of this section, award grants
to eligible applicants for
(1) studies to assess the effects from
vessel traffic on air quality, water quality, and
marine life in and near Alaska marine water and to
recommend mitigation and prevention of adverse
effects;
(2) activities to remediate or clean up
pollution or debris from vessel traffic in or near
Alaska marine water;
(3) educational programs designed to inform
the public about the importance of maintaining air and
water quality standards for Alaska's marine water; and
(4) other activities that the commissioner
determines will foster the protection and enhancement
of Alaska marine water.
(b) There is established the Alaska Ocean
Protection and Enhancement Advisory Board consisting
of not more than seven and not fewer than five
members, as determined by the commissioner. The
governor shall appoint the board members. The governor
shall appoint at least two members of the board from
nominations provided by the owners or operators of
large commercial passenger vessels and at least two
members from nominations provided by nonprofit
corporations eligible to receive grants under this
section. Members of the advisory board serve without
compensation but are entitled to per diem and travel
expenses as authorized under AS 39.20.180.
(c) The department shall adopt regulations for
the administration of the Alaska ocean protection and
enhancement program, including
(1) additional criteria for eligible
applicants and eligible projects;
(2) application forms and deadlines for
receiving applications;
(3) grant evaluation criteria; and
(4) audit and other procedures to ensure
proper expenditure of grant funds.
(d) In this section, "eligible applicant" means
(1) a nonprofit corporation organized under
the laws of this state if the corporation has been in
existence for at least two years at the time of the
grant application and has as one of its purposes the
promotion of air or water quality in Alaska marine
water or the protection of marine life in Alaska
marine water;
(2) a municipality that demonstrates
potential effects from vessel traffic in the marine
water within the boundaries of the municipality;
(3) an entity under federal law that
demonstrates potential effects from vessel traffic
within the areas of subsistence use; or
(4) other entities that the commissioner
determines are affected by effects of vessel traffic
in Alaska marine water."
Renumber the following bill sections accordingly.
CHAIR RAMRAS, after relaying that Amendment 1 would create the
Alaska ocean protection and enhancement fund, referred to three
letters of support included in members' packets from three
nonprofit organizations: the Alaska SeaLife Center, the Gulf of
Alaska Keeper (GoAK), and the Alaska Ocean Observing System
(AOOS).
CHAIR RAMRAS made a motion to adopt Amendment 1.
REPRESENTATIVE LYNN objected.
CHAIR RAMRAS explained that the Alaska ocean protection and
enhancement fund would be governed by an Alaska Ocean Protection
And Enhancement Advisory Board consisting of between five and
seven members appointed by the governor; a couple of the board
members would be chosen by the cruise ship industry and a couple
of the board members would be nominated by the nonprofit
organizations that would be eligible for grants under the
provisions of Amendment 1. He said his intent is to craft a
solution to the concerns that have been raised. Rather than see
the $4 fee used for a redundant purpose, he relayed, Amendment
1, as the Ocean Ranger program is altered to bring monitors on
board ships while they're in port, would free up a great deal of
funds for the goal of ensuring that Alaska has clean water and
healthy fish. He then read Amendment 1's proposed AS
46.03.484(a)(1)-(4), and indicated that these would be the tasks
set for applicants applying for the aforementioned grants.
CHAIR RAMRAS opined that it is the purview of the legislature to
amend ballot initiatives, and said he is hopeful that
Amendment 1 will pass the test laid out by the courts regarding
amending ballot initiatives. He suggested that the committee
review Amendment 1 with that question in mind, as well as with
the question of whether it honors the intent of the ballot
initiative as the legislature interprets it. He said he does
not want to impact the collection of the $4 fee, but would
rather see it used for the greater good of the ocean's
ecosystem. He asked members to review the aforementioned
letters, and opined that Amendment 1 and HB 164 provide the
committee with the opportunity to be proactive in making the
oceans a better place. In conclusion, he indicated that
[Amendment 1] would allow individuals and private organizations
to donate additional monies to the Alaska ocean protection and
enhancement fund established by Amendment 1.
VICE CHAIR DAHLSTROM relayed that the committee would hold
HB 164 over with the motion of whether to adopt Amendment 1 left
pending.
SB 45 - PEACE OFFICER CONVICTED OF MURDER
3:08:35 PM
VICE CHAIR DAHLSTROM announced that the final order of business
would be CS FOR SENATE BILL NO. 45(JUD), "An Act relating to
murder in the first degree."
VICE CHAIR DAHLSTROM returned the gavel to Chair Ramras.
3:09:38 PM
SENATOR DONNY OLSON, Alaska State Legislature, sponsor, after
offering recognition of all the hard work done by Alaska's law
enforcement personnel, relayed that SB 45 is intended to address
a situation in which a police officer violates the public trust
by using his/her position to commit murder. He explained that
SB 45 mandates that the maximum penalty be applied in situations
where a police officer is found guilty of using his position to
commit the crime of murder in the first degree, noted that SB 45
is supported by the Department of Law (DOL), and asked that the
committee vote favorably on the bill.
3:12:30 PM
GAIL SCHUBERT, Executive Vice President & General Counsel,
Bering Straits Native Corporation, said that on behalf of the
corporation and the residents of the Bering Straits region, she
is respectfully requesting that the House Judiciary Standing
Committee name SB 45 the "Sonya Ivanoff Law." This name was not
included in the original bill, was added in the Senate State
Affairs Standing Committee, and was deleted by the Senate
Judiciary Standing Committee, Ms. Schubert explained. She then
provided some personal information about the late Sonya Ivanoff,
and relayed that on May 26, 2006, the corporation's board of
directors adopted a resolution in support of the proposed new
law as did the Norton Sound Health Corporation, the Alaska
Federation of Natives, and Kawerak, Inc. The Bering Straits
Native Corporation took this action for a variety of reasons,
one being that the law enforcement officer who murdered Sonya
Ivanoff had a fundamental and sworn duty to serve the community,
safeguard lives and property, protect the public, and respect
the constitutional rights of all to liberty, equality, and
justice.
MS. SCHUBERT said: "We believe that law enforcement officers
should rightfully be held to a higher standard because of their
position of authority and responsibility." At the trial, she
relayed, it was found that the law enforcement officer used his
authority to lure Sonya Ivanoff into his police vehicle, after
which he savagely murdered her. In doing so, the law
enforcement officer breached his fundamental duty as a police
officer and set forth a tidal wave of distrust against law
enforcement officers and the judicial system that has
reverberated throughout the Native community in western Alaska.
During the sentencing hearing, she relayed, the State's
prosecutor cited AS 12.55.125 as justification for imposing a
prison sentence of 99 years; the State's attorney - Rick
Svobodny - opined that an equivalent sentence should result if a
police officer is convicted of murder in the first degree for a
crime committed while the officer is on duty, and the presiding
judge - Ben Esch - agreed and imposed the maximum prison
sentence of 99 years.
MS. SCHUBERT said that the Bering Straits Native Corporation
board of directors believes that the legislature has an
opportunity to restore confidence in the justice system for all
Alaska residents and to ensure that justice is equally applied.
In conclusion, she said that the corporation's board and the
residents of the [Bering Strait region] strongly urge that SB 45
be named the "Sonya Ivanoff Law" so that the death of this
vibrant young woman will not have been in vain.
CHAIR RAMRAS said that the committee would research the issue of
whether it is possible to name legislation after someone
specific.
REPRESENTATIVE LYNN, noting that he is a former police officer,
observed that this type of crime gives a black eye to law
enforcement officers everywhere. Therefore, he opined, even if
it is possible to name SB 45 after Sonya Ivanoff, doing so would
remind the public of the evil deed of one police officer who did
not represent the law enforcement community as a whole.
REPRESENTATIVE DAHLSTROM opined that Mr. Svobodny represented
the State extremely well during the aforementioned trial.
3:18:49 PM
REPRESENTATIVE DAHLSTROM moved to report CSSB 45(JUD) out of
committee with individual recommendations and the accompanying
fiscal notes.
CHAIR RAMRAS, after ascertaining that no one else wished to
testify, closed public testimony on SB 45.
REPRESENTATIVE HOLMES said she doesn't want SB 45 to interfere
with the ability of law enforcement officers to perform their
duties.
SENATOR OLSON said it is not his intention to prohibit law
enforcement officers from fulfilling their duties. He pointed
out that SB 45 will only apply when a law enforcement officer is
found guilty of first degree murder and used his/her position to
commit that murder; SB 45 is not going to affect a police
officer during his/her normal line of duty.
REPRESENTATIVE LYNN offered his understanding that HB 45 won't
apply in accidental shooting situations; it would only apply in
instances of premeditated murder.
REPRESENTATIVE GRUENBERG characterized the title of the bill as
being very broad, and referred to the language being added to AS
12.55.125(a): "(5) the court finds by clear and convincing
evidence that the defendant is a peace officer who used the
officer's authority as a peace officer to facilitate the
murder". He referred to the Blakely v. Washington, 124 S. Ct.
2531 (U.S., 2004) case, and questioned whether the phrase, "the
court finds by clear and convincing evidence" would be
interpreted to be referring to a jury.
3:24:31 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL), said
that the DOL is of the opinion that SB 45 does not raise a
Blakely issue because it doesn't provide for a sentence beyond
the maximum sentence within a specific sentencing range; under
SB 45, the jury won't have to find an aggravating factor in
order to impose the sentence of 99 years because that sentence
is the only sentence available for the crime listed therein. In
response to comments and a question, she offered to provide the
committee with documentation that will support the DOL's opinion
on this issue.
REPRESENTATIVE GRUENBERG asked whether the phrase, "clear and
convincing evidence" provides a high enough standard to
withstand a constitutional challenge.
MS. CARPENETI offered her belief that it will, and offered to
get the committee further information on that point. In
response to further questions, she surmised that the definition
of "peace officer" found in Title 1 is broader than the
definition of "police officer" found in Title 18, and that the
sponsor intended to use the same term in proposed AS
12.55.125(a)(5) as is currently used in AS 12.55.125(a)(1) -
that term being "peace officer".
REPRESENTATIVE GRUENBERG said he is questioning whether the
definition should be broadened further.
MS. CARPENETI indicated that the term "peace officer" has been
used in the past, and that the DOL is comfortable with that term
as currently defined.
REPRESENTATIVE DAHLSTROM withdrew her motion to report CSSB
45(JUD) from committee.
3:30:45 PM
CHAIR RAMRAS made a motion to adopt Amendment 1, labeled 25-
LS0183\A.2, Luckhaupt, 1/29/07, which read:
Page 1, following line 2:
Insert a new bill section to read:
"* Section 1. The uncodified law of the State of
Alaska is amended by adding a new section to read:
SHORT TITLE. This Act may be known as the Sonya
Ivanoff Act."
Page 1, line 3:
Delete "Section 1"
Insert "Sec. 2"
Renumber the following bill section accordingly.
Page 2, line 13:
Delete "Section 1"
Insert "Section 2"
REPRESENTATIVE LYNN objected, and reiterated his belief that
naming the bill after the victim will tend to give a black eye
to law enforcement agencies.
CHAIR RAMRAS relayed that the sponsor has indicated to him that
he favors Amendment 1.
A roll call vote was taken. Representatives Coghill, Samuels,
Holmes, Gruenberg, Dahlstrom, and Ramras voted in favor of
Amendment 1. Representative Lynn voted against it. Therefore,
Amendment 1 was adopted by a vote of 6-1.
3:32:05 PM
REPRESENTATIVE DAHLSTROM moved to report CSSB 45(JUD), as
amended, out of committee with individual recommendations and
the accompanying zero fiscal notes. There being no objection,
HCS CSSB 45(JUD) was reported from the House Judiciary Standing
Committee.
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:32 p.m.
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