Legislature(1999 - 2000)

03/29/2000 03:15 PM Senate RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                 SB 296-FEES FOR STATE SERVICE                                                                                  
                                                                                                                                
CHAIRMAN HALFORD announced SB 296 to be up for consideration.                                                                   
                                                                                                                                
MR. MIKE TIBBLES, Aide to Representative Therriault, said he has                                                                
the companion bill in the House. He said this bill establishes                                                                  
three categories of services, a standard designated regulatory                                                                  
service, a designated regulatory service, and regulatory services.                                                              
They are each applied differently in the bill.                                                                                  
                                                                                                                                
The standard designated regulatory services are services that they                                                              
believe are not complex.  The bill mandates that DEC fix as many of                                                             
them as possible.  That fixed fee would be based upon the average                                                               
actual reasonable and direct cost in providing the service.                                                                     
                                                                                                                                
The bill also provides for negotiated agreements between DEC and                                                                
the industry.  There is no mandatory provision that they reach                                                                  
agreement, but it provides that if the permittee requests                                                                       
negotiation, DEC at least make the attempt.  If negotiations are                                                                
unsuccessful, billing would fall back to time and expense which is                                                              
actual and reasonable direct costs of providing the service.                                                                    
                                                                                                                                
Additionally, the bill establishes a process for petitioning the                                                                
agency or agencies involved. If you desire a single project fee, a                                                              
permittee can petition DGC to come up with a single fee.  There is                                                              
also a provision regarding invoicing which they require on a                                                                    
monthly basis.  There is a provision for the industry to petition                                                               
a resource agency to adopt additional fixed fees if they believe                                                                
they have a category of services that would be suitable for a fixed                                                             
fee.  This perhaps is a repetitive permit that is used on an annual                                                             
basis or every four years.                                                                                                      
                                                                                                                                
The designated regulatory services that are used in this bill are                                                               
limited to water, waste water, and solid waste.                                                                                 
                                                                                                                                
CHAIRMAN HALFORD asked regarding page 8, section 3, where line 14                                                               
deletes "not including travel" as a basis of fees.  The laundry                                                                 
list includes all the agriculture inspections, food, drugs,                                                                     
cosmetics, public accommodation.  That looks like a broad list                                                                  
that's outside of the interests of the advocates of this                                                                        
legislation.  And yet by taking out the exclusion on travel their                                                               
fees may be increasing.  He asked if that was a necessary part of                                                               
this bill.                                                                                                                      
                                                                                                                                
MR. TIBBLES responded that they are opening the possibility that                                                                
additional services under AS 44.46.025(a) may see an increase in                                                                
their fees for travel.  It wouldn't be every single program.  Some                                                              
of them don't even charge.  For drugs and cosmetics there's no fee.                                                             
Some individuals in the industry felt they should be able to pay                                                                
for travel.  There were concerns from small operators that they                                                                 
were going to be "killed" by the travel.                                                                                        
                                                                                                                                
CHAIRMAN HALFORD said this was not a service that the owner of a                                                                
small bed and breakfast in a rural area with expensive travel                                                                   
particularly wants.  He asked if that section was essential for the                                                             
bill.                                                                                                                           
                                                                                                                                
MR. TIBBLES replied that language was added in this section for                                                                 
consistency.  The goal of this bill is to establish a model for                                                                 
particular programs - water, waste water, and solid waste.  This                                                                
provision is outside the model they are attempting to build.                                                                    
                                                                                                                                
SENATOR TAYLOR said his concern was that by adding more words to                                                                
the statute they are trying to get a handle on these folks and                                                                  
still you are leaving the fox in charge of the hen house.  You                                                                  
still have the agency telling you what is a reasonable time.                                                                    
                                                                                                                                
TAPE 00-15, SIDE B                                                                                                              
                                                                                                                                
MS. JANICE ADAIR, Director, Division of Environmental Health, said                                                              
that all issues they agreed upon are reflected in SB 296, but there                                                             
are few issues remaining that she hopes are minor that they will be                                                             
meeting with the RDC on.  Their overriding concern with this                                                                    
legislation is that it doesn't answer the policy question of how                                                                
the cost of state services should be divided between the users of                                                               
those services and the public.  They believe the State desperately                                                              
needs a rational basis for apportioning costs to State programs in                                                              
setting fees.  There has never been a holistic debate on how the                                                                
cost of government services should be apportioned.  They believe                                                                
equity must be a cornerstone of any allocation of costs.  To the                                                                
extent there are inequities, there should be some rational basis.                                                               
While this bill may result in an equitable distribution of costs                                                                
for those programs and users covered by it, not all the programs                                                                
within DEC for which fees are charged are included in it.  In some                                                              
cases, some of the smallest and least profitable businesses                                                                     
permitted by DEC are not covered by this bill.  That remains a                                                                  
significant concern to them.                                                                                                    
                                                                                                                                
CHAIRMAN HALFORD said it sounded like she said it's unfair not to                                                               
charge those who can't afford to pay.                                                                                           
                                                                                                                                
MS. ADAIR responded that they believe this bill is equitable for                                                                
the people it covers; it should be equally equitable for those who                                                              
aren't covered by it.                                                                                                           
                                                                                                                                
Number 2270                                                                                                                     
                                                                                                                                
SENATOR TAYLOR noted that last year the legislature did an                                                                      
unallocated cut across the board and her department chose where to                                                              
take it.  She took out the food inspectors and then told the press                                                              
how dangerous it was to go to restaurants because the legislature                                                               
had cut them.  They, then increased fees (by $1.1 million)to all                                                                
the people who were out there and were licensed that had anything                                                               
to do with food preparation.  He thought they made a profit for the                                                             
Department of $700,000 - $800,000.                                                                                              
                                                                                                                                
MS. ADAIR responded that there were two cuts; one was an                                                                        
unallocated reduction of $340,000 and that was taken in the Water                                                               
Quality Program.  Another cut was taken specific to the Food Safety                                                             
and Sanitation Component of $339,000.  That was a reduction to that                                                             
component and was made by the Conference Committee.  In addition,                                                               
another $548,000 was switched from general funds to general fund                                                                
program receipts in Seafood Safety and Sanitation component.  They                                                              
increased fees by $548,000.  So their fee authority totals $1.5                                                                 
million. Prior to that it was about $1 million.  That is if every                                                               
single person pays.                                                                                                             
                                                                                                                                
SENATOR TAYLOR said it still looked like they are raising more fees                                                             
than the amount of their cuts.                                                                                                  
                                                                                                                                
MS. ADAIR responded that they had raised their fees to the level                                                                
necessary to bring in the amount in their budget that is authorized                                                             
as general fund program receipts which is $1,530,000.  Their                                                                    
analysis shows that they will actually under-collect, because not                                                               
every single person paid.                                                                                                       
                                                                                                                                
SENATOR TAYLOR asked if they didn't have flat fees 10 or 15 years                                                               
ago.                                                                                                                            
                                                                                                                                
MS. ADAIR recollected when fees were first established for this                                                                 
program, there was a flat $50 fee for some time.  This program is                                                               
general funded; there are very little federal dollars and those are                                                             
contract dollars to hire people to go out and do inspections.                                                                   
                                                                                                                                
SENATOR TAYLOR asked if some of the choices made within the                                                                     
department as to the level of interest or risk.                                                                                 
                                                                                                                                
MS. ADAIR answered that the number of positions any agency has to                                                               
be authorized; the total amount of fees they are authorized to                                                                  
collect has to also be authorized.  How they allocate those costs                                                               
amongst the permittees is part of the regulatory process.  They                                                                 
make a proposal to the public; they mail out to areas that are                                                                  
going to be affected and work with them to the maximum extent they                                                              
can.                                                                                                                            
                                                                                                                                
CHAIRMAN HALFORD asked how the section worked if you're an employer                                                             
of less than 20 in the category of fees that are going to be                                                                    
covered.                                                                                                                        
                                                                                                                                
Number 1900                                                                                                                     
                                                                                                                                
MS. ADAIR said that was the definition of direct deposit fee and is                                                             
on page 7, line 5.  This is an amendment made in House Finance.  It                                                             
was explained that there may be placer miners out in remote areas                                                               
of the state, people would call up and complain about them and DEC                                                              
would have to out numerous times to follow up on essentially                                                                    
specious complaints.  The maker of the amendment does not want the                                                              
businesses to have to pay for that travel.  They agree with the                                                                 
goal and don't charge people the inspection fee for a complaint                                                                 
that turns out to be invalid.  People do that to their competitors.                                                             
However, the language in the bill doesn't read that way and the way                                                             
they think it will work is to have two separate flat fees - one for                                                             
businesses with 20 or more employees and one for businesses with                                                                
less than 20.  They haven't figured out yet how they will know how                                                              
many employees a business has.  It's somewhat problematic the way                                                               
it is written.                                                                                                                  
                                                                                                                                
SENATOR TAYLOR said he was troubled that there was an incentive                                                                 
within the Department to do more inspections, because the revenues                                                              
upon which it is based will depend upon the level of inspection.                                                                
He wouldn't want to go into a court where the judge's salary                                                                    
depended upon whether or not he was convicted.                                                                                  
                                                                                                                                
MS. ADAIR said in this case, the bill is premised on the Department                                                             
having as many flat fees as possible.  A permittee would pay a flat                                                             
fee annually and that fee would be the same whether they were                                                                   
inspected once or five times.                                                                                                   
                                                                                                                                
Number 1774                                                                                                                     
                                                                                                                                
MS. CHARLOTTE MACCAY, Senior Administrator, Environmental Affairs,                                                              
Cominco Alaska, and Vice President, Producers Council, said as Red                                                              
Dog Operations they have paid hundreds of thousands of dollars in                                                               
fees to DEC.  They supported this bill so there are some side bars                                                              
and structures, some consistencies and accountability for the fees                                                              
they have paid.  There has been very little of that in the past.                                                                
Regarding the travel, they have often gone into legal uncertainties                                                             
to be able to request to pay DEC to travel up to see the operation                                                              
before they attempt to regulate it - as well as legal obstacles to                                                              
being able to pay to get everyone to Seattle and coordinate with                                                                
the federal agencies.  They can't pay to bring EPA up here.                                                                     
Having the travel in the bill is so they have clear ability to do                                                               
so.  They feel that other solutions could help protect the small                                                                
operators from having it imposed on them unwillingly.  They have                                                                
viewed this bill as part of a multi-faceted solution.                                                                           
                                                                                                                                
MS. MACCAY said that industry has a responsibility to pay for some                                                              
of the permitting; but they also feel the need to pay for a core                                                                
management within those permitting functions that is experienced,                                                               
seasoned, and also knows their authority and when not to bow to                                                                 
EPA's authority.  Third party consultants and new inexperienced                                                                 
people do not have that confidence to do so.  Third party                                                                       
consultants do need to be brought in for the permitting staffing                                                                
for the technical work and the general permit writing.                                                                          
                                                                                                                                
Number 1585                                                                                                                     
                                                                                                                                
MR. KEN FREEMAN, Executive Director, Resource Development Counsel                                                               
(RDC), said their work group had worked over the last 13 months to                                                              
develop a permit fee structure based upon two underlying principles                                                             
- predictability and accountability.  He stressed the productive                                                                
working relationship their group has developed with both the                                                                    
legislature and the administration on this bill.  He said he could                                                              
address Senator Taylor's concerns one of which was the agencies                                                                 
ability to determine reasonable and direct costs.  There are a                                                                  
couple of protections within the bill that give industry comfort.                                                               
First, fixed fees will go through a regulatory process and the                                                                  
public has the to test the reasonable question.  Page 6, line 18                                                                
has the definition of direct costs.  Those things which will not be                                                             
allowed to be in direct costs include the cost of salaries of                                                                   
administrative support and supervisory personnel who are not                                                                    
directly engaged in providing a service, other budgeted overhead                                                                
expenses, interagency charges that would not meet the requirements                                                              
if those charges were incurred or invoiced by the agency providing                                                              
the designated regulatory service.                                                                                              
                                                                                                                                
Secondly, if negotiated permit activity doesn't come together for                                                               
the permittee and the agency, time and expense invoices can be                                                                  
appealed to OMB, an opportunity for an additional check for the                                                                 
permittee.                                                                                                                      
                                                                                                                                
Thirdly, negotiated contracts as written in the bill are contracts                                                              
(page 3, line 12).                                                                                                              
                                                                                                                                
SENATOR MACKIE said he first became aware of the need for this bill                                                             
last year. He asked him what the concerns of the agencies were and                                                              
what had been done to accommodate them.                                                                                         
                                                                                                                                
MR. FREEMAN said RDC met for over a year and Mr. Jon Tillinghast                                                                
helped them craft the initial draft which was given to DEC.  They                                                               
reviewed it with some changes which were incorporated.  That                                                                    
exchange before the legislative process happened three or four                                                                  
times.  When they got to the Finance Committee, agency staff had                                                                
all been giving them input on a daily basis.                                                                                    
                                                                                                                                
SENATOR MACKIE asked if he was satisfied that they had accommodated                                                             
90% of agency concerns with DNR.                                                                                                
                                                                                                                                
MR. FREEMAN replied that all of DNR's concerns were taken care of.                                                              
DEC's original fiscal note was within the millions of dollars and                                                               
at this point in time it's down to $0.                                                                                          
                                                                                                                                
MR. FREEMAN said with regard to Senator Taylor's concern about                                                                  
giving DEC the discretion to come up with what is reasonable and                                                                
direct costs, that there are several clauses that give comfort.                                                                 
First is the establishment of fixed fees.  The second is if there                                                               
is a dispute on time and expense invoices, it can first be appealed                                                             
within the agency.  If you still have a dispute, particularly with                                                              
regard to direct and reasonable cost, you can appeal to OMB.  The                                                               
objective there was to appeal to an entity outside of DEC.  A third                                                             
item is on page 3, line 12 where their intent was to have the                                                                   
negotiated agreements actually be contracts.                                                                                    
Number 466                                                                                                                      
                                                                                                                                
SENATOR TAYLOR said he had gone over interport cost differential                                                                
with DNR where he wrote it into law and foolishly believed someone                                                              
would try to enforce it.  Our boats continued to not be worked on                                                               
in Alaska because he didn't have listed specifically what interport                                                             
cost differential would be.  He didn't think he had to tell them to                                                             
include cost of travel.  What they did to diminish the cost of                                                                  
interport differential is to put nothing down or they would bid the                                                             
contracts out with the differential being figured off of Seattle,                                                               
Washington, because that's where they would end the run.                                                                        
                                                                                                                                
MR. FREEMAN said there was a lot of discussion about this issue.                                                                
He didn't think they had accomplished all the goals of the members                                                              
in the legislation, but he thought they had something they could                                                                
all support.                                                                                                                    
                                                                                                                                
MR. STEVEN DAUGHERTY, Department of Law, said they had resolved                                                                 
most of the legal issues that had existed with the original version                                                             
of this bill.  They have worked to give the departments adequate                                                                
regulatory authority so they could adopt regulations to implement                                                               
the bills.  There are still some significant costs for the                                                                      
Department of Law under reimbursable service agreements will be                                                                 
from contracts that will have to be reviewed according to statute.                                                              
Another cost is increased regulation lawsuits and appeals generated                                                             
out of what is a reasonable and direct cost.                                                                                    
                                                                                                                                
SENATOR MACKIE asked him to explain the fiscal note.  He asked if                                                               
it is was for the review of contracts and wasn't that what DOL is                                                               
being paid to do right now or do they have to hire new people.                                                                  
                                                                                                                                
MR. DAUGHERTY answered that they are operating beyond capacity                                                                  
right now, particularly in the natural resources area.  In order to                                                             
take on new functions, they have to either drop work that is                                                                    
currently being done or hire new employees.                                                                                     
                                                                                                                                
SENATOR MACKIE said he didn't know money was an issue with the                                                                  
Department of Law.                                                                                                              
                                                                                                                                
MR. DAUGHERTY responded that particularly in the environmental                                                                  
arena they worked largely on reimbursable service agreements from                                                               
the agencies and not on general funds.  If they don't get the money                                                             
from DEC for the services, basically the Department of Law can't                                                                
provide them.  They have some environmental general funds, but they                                                             
are quite limited.  In the first two years, the costs are                                                                       
approximately $74,000.  After that they would have a quarter of an                                                              
attorney primarily for contract review and review of regulations.                                                               
                                                                                                                                
CHAIRMAN HALFORD asked if there was any legal problem with the                                                                  
provision that doesn't apply travel to employers of less than 20.                                                               
                                                                                                                                
MR. DAUGHERTY answered that he didn't see a real legal problem.                                                                 
The number of regulations is increasing, but they could argue that                                                              
equal protection isn't applicable, because they aren't similarly                                                                
situated.  There would also be some problems with defining what is                                                              
20 employees. That can be resolved through court action or                                                                      
regulation.                                                                                                                     
                                                                                                                                
Number 466                                                                                                                      
                                                                                                                                
SENATOR TAYLOR asked about the reimbursable fee agreements that are                                                             
contracts and if there was anything in the fiscal note about the                                                                
times when the State makes a mistake and gets sued under the                                                                    
contract.                                                                                                                       
                                                                                                                                
MR. DAUGHERTY answered that he didn't think that was taken into                                                                 
consideration since it was a normal risk of doing businesses.  They                                                             
don't normally put that in a fiscal note unless they are certain                                                                
they will incur the expenses.                                                                                                   
                                                                                                                                
SENATOR TAYLOR asked if they had thought about the constitutional                                                               
aspect of this and the legislature's power of appropriation.                                                                    
                                                                                                                                
MR. DAUGHERTY said they hadn't looked at that particular question,                                                              
but he didn't believe that was a problem because DEC will always be                                                             
operating off its appropriation from a previous year.  They will                                                                
just be using the reimbursable service agreements to collect the                                                                
fees to collect the money that was already authorized by the                                                                    
legislature.                                                                                                                    
                                                                                                                                
SENATOR TAYLOR said then the legislature's power of appropriation                                                               
merely becomes a rubber stamp each year annually to grant to the                                                                
Department a certain level of authorization to use receipts                                                                     
sufficient to allow these arrangements to move forward.                                                                         
                                                                                                                                
MR. DAUGHERTY said he saw his point - with a multi-year contract                                                                
that could be a problem.  Normally that's not the case.  Permitting                                                             
is usually a year and, at most, two.  On-going projects are not                                                                 
covered by this bill.                                                                                                           
                                                                                                                                
SENATOR TAYLOR said he was concerned about the overall pattern of                                                               
agencies working out a fee arrangement with the people they                                                                     
service.                                                                                                                        
                                                                                                                                
MR. DAUGHERTY said he would suggest adding the standard language                                                                
"subject to appropriation" to the contracts to deal with his                                                                    
concern.  On the policy issue of fees being set by the legislature,                                                             
that is an issue DEC is concerned with.  He thought Ms. Adair                                                                   
should answer that question.                                                                                                    
                                                                                                                                
TAPE 00-16, SIDE A                                                                                                              
Number 001                                                                                                                      
                                                                                                                                
MR. DAUGHERTY said they try to avoid any violation of the                                                                       
Constitution and believe that appropriations go through the                                                                     
legislature and that program receipts do not violate the                                                                        
Constitution just from the fact that they are being raised because                                                              
they are still subject to appropriation by the legislature.                                                                     
                                                                                                                                
CHAIRMAN HALFORD said on line 14 he wanted to put back "not                                                                     
including travel" so they're not passing something that's going to                                                              
add to the rate base for all the little guys.                                                                                   
                                                                                                                                
SENATOR MACKIE said his only concern was what effect it has in                                                                  
terms of the consensus building approach that's been taken.                                                                     
                                                                                                                                
CHAIRMAN HALFORD said the reason he mentioned it is because this is                                                             
an area that's not in the group that's working on it.  His goal is                                                              
to not change the provisions as it applies to the inspections of                                                                
others than this working group.                                                                                                 
                                                                                                                                
MR. TIBBLES pointed out, if they remove the deletion and put back                                                               
in the prohibition to charge travel they will take out DEC's                                                                    
ability to charge travel in all cases.  That's including the                                                                    
designated regulatory services.                                                                                                 
                                                                                                                                
CHAIRMAN HALFORD asked how to do it so they didn't include their                                                                
friends in CHAR, etc.                                                                                                           
                                                                                                                                
SENATOR MACKIE said he understands what he wants to do and supports                                                             
that, but wondered what the overall effect was to non-RDC                                                                       
industries as well.                                                                                                             
                                                                                                                                
Number 372                                                                                                                      
                                                                                                                                
CHAIRMAN HALFORD said if RDC and their group is willing to accept                                                               
travel because of the other things they gain in this process and                                                                
the side boards they get on the whole process, that's fine.  This                                                               
part of the bill (page 7, line 5) goes back to an existing statute                                                              
that was an exemption and applied to everybody else.  Conceptually,                                                             
he wanted to delete "not including travel" for any of the services                                                              
that are part of the RDC package. If it is agreeable to have a                                                                  
conceptual amendment that deletes number one in whatever way the                                                                
legal department says to do it, that's clear enough so that                                                                     
everyone knows what they are doing.                                                                                             
                                                                                                                                
MR. TIBBLES suggested adding "However travel may be charged for                                                                 
designated regulatory services under AS 37.10.058.  They have a                                                                 
specific definition of what a designated regulatory service is in                                                               
this bill.  It only includes water, waste water, and solid waste.                                                               
                                                                                                                                
SENATOR MACKIE asked if all the industry would fall within that                                                                 
category anyway.                                                                                                                
                                                                                                                                
MR. TIBBLES said that was correct.                                                                                              
                                                                                                                                
CHAIRMAN HALFORD asked if they would go back to the original                                                                    
language of not including travel and add that phrase.                                                                           
                                                                                                                                
MR. TIBBLES said that was right.                                                                                                
                                                                                                                                
SENATOR TAYLOR said this was still going to include anyone out                                                                  
there who has a trailer court with a water or sewer system hooked                                                               
up to it.  By making this change, people who have been sending in                                                               
water samples will now have to pay the cost of travel for some DEC                                                              
inspector to come out.  He asked if the 20 employee exemption would                                                             
keep them from being involved.                                                                                                  
                                                                                                                                
CHAIRMAN HALFORD explained that the 20 employee exemption was a                                                                 
blanket exemption for everyone.                                                                                                 
                                                                                                                                
MR. TIBBLES said that was correct.                                                                                              
                                                                                                                                
SENATOR TAYLOR moved Mr. Tibble's amendment.  There were no                                                                     
objections and it was so ordered.                                                                                               
                                                                                                                                
SENATOR TAYLOR moved to pass CSSB 296 from committee with the                                                                   
accompanying fiscal note with individual recommendations.  There                                                                
were no objections and it was so ordered.                                                                                       

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