SENATE BILL NO. 178 "An Act relating to civil nuisance actions; and 2 providing for an effective date." Representative Brown provided members with AMENDMENTS 8 and 9 (copies on file). She explained that Amendment 8 would clarify the definitions of "nuisance" as a civil public or private nuisance. Representative Parnell noted that a motion was pending from the 3/17/94 House Finance Committee meeting, to report HCS CSSB178 (FIN) out of Committee. Representative Therriault WITHDREW HIS MOTION to report HCS CSSB178 (FIN) out of Committee. Representative Brown MOVED to ADOPT AMENDMENT 8. She stressed that Amendment 8 attempts to clarify that current statutes and regulations regarding "nuisances" cover private and public nuisances. She observed that court interpretations have found that "nuisance" means public nuisance. MARIE SANSOME, ASSISTANT ATTORNEY GENERAL-GENERAL CIVIL SECTION, DEPARTMENT OF LAW agreed that Amendment 8 would clarify the private nuisances would be included in the context of air pollution statutes which cover public nuisances. Representative Hanley referenced 18 AAC 50.110. He suggested that if there is a violation of the terms or conditions of a statute or regulation then a person has the right to sue for a private nuisance. Ms. Sansome stressed that definitions of nuisances addressed by the amendment are related only to the application of the statutes as to public nuisances. She suggested that the amendment would clarify subsection (d). JIM CLARK, GENERAL COUNSEL, ALASKA FOREST ASSOCIATION, JUNEAU observed that the point of measurement is at the property line. He alleged that because showings are made at the property line it does not matter if it is a public or private nuisance. Representative Hanley questioned if 18 ACC 50.110 defines air pollution as a nuisance. Representative Brown suggested that the Committee expects and intends that page 1, line 12 triggers statutes and regulations that protect people from private nuisances and therefore Amendment 8 is unnecessary. Ms. Sansome referred to subsection (d) she noted that it was added at the request of Mr. Clark. She emphasized that 3 there are legal opinions that statutes cited would only cover public nuisances. She suggested that if the intent is to reflect that the statute definitions should apply to a private nuisance then Amendment 8 should be adopted. She suggested that there is a potential conflict between subsection (d) and section 2. Mr. Clark reiterated that permits are issued based on conditions at the property line. Ms. Sansome and Mr. Clark disagreed with the interpretation of statutes in regards to public and private nuisances. Mr. Clark asserted that Amendment 8 would interfere with the affect of the shield provided by subsection (d). He alleged that adoption of Amendment 8 would require changes to AS 46.03.900. (Tape Change, HFC 94-68, Side 2) Co-Chair Larson reiterated Representative Brown's concern that the legislation apply to private nuisances. Mr. Clark stressed that if a violation of the permit occurs a private nuisance suit could be initiated. Representative Navarre observed that permits deal with public nuisances. He stressed that if the permit is not violated and a civil claim existed the private property owner would not be able to bring action. He restated that if there is a private nuisance caused by something that did not violate a public permit process an action could not be brought. He summarized that the issue is whether or not private nuisances are included in the public permit process. Mr. Clark reiterated that if there is a violation of the regulation the shield is down. Ms. Sansome noted that according to AS 46.03.870 (a), permits and regulations issued by the state are for the benefit of the state and public and do not create a right in a person. She doubted that a person could demonstrate that the violation of the air nuisances statute created a right to a remedy. Mr. Clark asserted that private nuisance suits are available except when the shield is up. He observed that the legislation describes when the shield is up and when it is down. Ms. Sansome questioned if air pollution regulations would cover private nuisances if the legislation is adopted. Mr. Clark maintained that the right of action for a private nuisance is created in section 1 of the legislation. Representative Brown restated her motion to ADOPT AMENDMENT 8. Representative Therriault OBJECTED. A roll call vote was taken on the motion. IN FAVOR: Brown, Hoffman, Navarre 4 OPPOSED: Parnell, Therriault, Foster, Grussendorf, Martin, MacLean, Larson The MOTION FAILED (3-8). Representative Brown MOVED to ADOPT AMENDMENT 9 (copy on file). She explained that the amendment rephrases AMENDMENT 1. The amendment would provide that the shield is up when there is a "showing by the licensee, permittee, or person subject to the order that the proposed activity will not result in any emission or discharge that is injurious to human health or welfare, animal or plant life, or property, or that would injuriously interfere with the enjoyment of life or property; or". She stated that she understood that Amendment 8 was not adopted because the Committee feels that it is unnecessary and that private nuisances are covered. She explained that Amendment 9 will make clear that private nuisances are expressly addressed in the permitting process. Mr. Clark noted that Amendment 1 was offered by the Department of Law. He clarified that a nuisance showing is not currently being made in respect to water. He maintained that Amendment 9 would create a new condition which would make the legislation prospective. There are regulations requiring showings in regards to air and solid waste. Representative Therriault OBJECTED to the motion to ADOPT AMENDMENT 9. A roll call vote was taken on the motion. IN FAVOR: Brown, Grussendorf, Hoffman, Navarre, MacLean OPPOSED: Therriault, Foster, Hanley, Martin, Parnell, Larson The MOTION FAILED (5-6). Representative Brown referred to subsection (f). Subsection (f) provides that the state is held harmless from inverse condemnation. She observed that the state of California has a similar shield in respect to timber operations. She stressed that individuals are suing the state of California, not for inverse condemnation, but for violations under the permitting processes. Representative Brown objected to line 30, page 2, to award full reasonable attorney fees and costs to a person who prevails in defense of a claim or court action. She opposed changing the rules of civil procedure in this way. She emphasized that there is currently judicial discretion to look at the circumstances and determine how court costs are spread. 5 Representative Therriault MOVED to REPORT HCS CSSB 178 (FIN) out of Committee with individual recommendations and with the accompanying fiscal note. Representative Navarre OBJECTED.A roll call vote was taken on the motion. IN FAVOR: Foster, Grussendorf, Hanley, Martin, Parnell, Therriault, MacLean, Larson OPPOSED: Hoffman, Navarre, Brown The MOTION PASSED (8-3). HCS CSSB 178 (FIN) was reported out of Committee with "no recommendation" and with a zero fiscal note by the Department of Law.