Legislature(2007 - 2008)
03/18/2008 02:40 PM House TRA
| Audio | Topic |
|---|---|
| Start | |
| HB415 | |
| HB294 | |
| HB372 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 372-HIGHWAY DESIGN FLEXIBILITY/MUNICIPALITIES [Due to technical difficulties there is no audio for the following five minutes. The minutes were reconstructed from the secretary's notes.] 4:01:55 PM CHAIR JOHANSEN announced that the final order of business would be HOUSE BILL NO. 372, "An Act relating to highway design flexibility and to the assumption by municipalities of certain duties related to highways." 4:02:16 PM REPRESENTATIVE FAIRCLOUGH moved that the committee adopt as the working document Version 25-LS0525\L, Kane, 3/13/08. There being no objection, Version L was before the committee. 4:02:35 PM REPRESENTATIVE BOB BUCH, Alaska State Legislature, reminded the committee that context sensitive solutions (CSS) is a process for the design of new roads and redesign of old roads in which all of the stakeholders are involved from the beginning. Under CSS, community involvement is expanded when the road is being designed and also includes experts with different perspectives. Most importantly, these folks are brought in early in order to take into account all the different uses of the road. Representative Buch related that CSS is being used all over the nation with great success. In fact, the Federal Highway [Administration] (FHWA) has as one of its strategic goals to have CSS adopted in all 50 states by 2007. Representative Buch opined that CSS has reduced controversies in roads, the number of lawsuits, and has resulted in better roads. According to the FHWA, 43 states have implemented CSS. REPRESENTATIVE BUCH acknowledged that last week the committee expressed concerns, which he subsequently discussed with the Department of Transportation & Public Facilities (DOT&PF) and addressed in Version L. He mentioned that to this point there have been four committee substitutes (CS), every concern has been addressed, and Legislative Legal and Research Services has made it legally sound. Therefore, Representative Buch asked the committee to support [Version L]. 4:05:16 PM REPRESENTATIVE FAIRCLOUGH asked from who the facts Representative Buch related come. REPRESENTATIVE BUCH related that he has worked with a community council on this matter for years and has received much information from a community councilman who has been involved with this issue for over a decade and who testified at a prior hearing. Furthermore, there is a web site that has all of the aforementioned information. 4:05:35 PM [Recording starts.] REPRESENTATIVE BUCH recalled giving staff a DVD that reviewed this and included web sites and information. Basically, this is something that the FHWA has been promoting for some time, and therefore most of the information came from FHWA. 4:06:24 PM REPRESENTATIVE FAIRCLOUGH said she will check with the FHWA. 4:06:39 PM DEBORAH BREVOORT, Staff to Representative Bob Buch, Alaska State Legislature, speaking on behalf of the sponsor, Representative Buch, noted that she will be referring to Version 25-LS0525\L. She recalled that last week the committee expressed the need for the legislation to contain language that allows DOT&PF to scale the CSS process to the complexity, size, and scope of a particular project. She further recalled that Representative Neuman and DOT&PF were concerned with the long list of stakeholders in the previous version because different folks would come forward and ask to be added to the list. To address those concerns, on page 2, lines 9-14, the following language was added: (d) In carrying out the design process described in (c) of this section, the commissioner may (1) consult with affected citizens, elected officials, interest groups, and other stakeholders appropriate for a particular project; and (2) scale the process commensurate with the scope, complexity, and effect of the project. MS. BREVOORT noted that the aforementioned language was provided by DOT&PF. Another key change in the above subsection is use of the word "may" rather than "shall." The belief, she related, was that the term "may" would provide the commissioner more flexibility and avoid lawsuits due to the discretion it provides. Ms. Brevoort then recalled that DOT&PF wanted to be sure that this legislation only applied to those projects beginning after the effective date of the legislation, which is now specified on page 2, lines 30-31. The other change embodied in Version L is on page 1, line 6, which uses the term "principles" rather than "standards." 4:10:13 PM MS. BREVOORT, in response to Representative Buch, said that she can provide members a handout from the CSS web site, which is in partnership with FHWA. The web site relates that Alaska is not one of the 43 states employing CSS. The information also comes from the Anchorage Road Coalition and the American Association of State Highway and Transportation Officials (AASHTO). 4:11:19 PM REPRESENTATIVE FAIRCLOUGH clarified that she is interested in specific studies with specific report dates in order to know who collected the specific data. MS. BREVOORT offered to obtain that information. 4:12:11 PM REPRESENTATIVE FAIRCLOUGH then inquired as to who testified for the Anchorage Road Coalition. REPRESENTATIVE DOOGAN answered that it was a gentleman named, Frank McQueary. REPRESENTATIVE BUCH, in further response to Representative Fairclough, specified that Mr. McQueary was with the Sand Lake Community Council. Mr. McQueary has been involved with this process for 15 years, although he doesn't have an engineering degree. The research mainly came through highway engineers and their particular design process in the Lower 48. REPRESENTATIVE FAIRCLOUGH informed the committee that she has been involved in multiple projects that used CSS, and thus she has a different perspective after serving on the Anchorage Metropolitan Area Transportation Solutions (AMATS). 4:13:40 PM JEFF OTTESEN, Director, Division of Program Development, Department of Transportation & Public Facilities (DOT&PF), opined that Representative Buch and DOT&PF have worked hard to develop legislation that everyone can support, although it's not quite there. He expressed concern that the legislation is prescriptive rather than permissive, which is a risk. Forty- three states have implemented CSS. Alaska should be on the list, but Alaska isn't listed because the state's policy doesn't use the term CSS. Mr. Ottesen related that DOT&PF takes issue with the term CSS, which he characterized as a moving target. Mr. Ottesen said Alaska adopted flexible design standards and involved stakeholders in design much earlier than most states. Furthermore, [DOT&PF] has been training with a nationally prominent training center to involve nontraditional stakeholders since the early 1990s. Since CSS has become a term of art, the department has received training in CSS. Currently, CSS approaches are utilized in all relevant projects and all regions. For example, the highway-to-highway request for proposals (RFP) specifically speaks to the team being trained in CSS. 4:16:05 PM MR. OTTESEN clarified that DOT&PF supports and already uses CSS. The department's concern is how it's put on paper. From experience, the department knows that prescriptive statutes can be used to stall or kill a project. Most states that adopt the CSS policy don't do so in statute. Of the four states that did adopt the CSS policy in statute, three states utilized very permissive language and the fourth state, without the permissive language, has an exemption of liability. Therefore, those states have allowed for the fact that the state shouldn't be sued for these issues should they proceed to use CSS. Mr. Ottesen related that the department's concern that CSS is a term of art. The legislation points to a policy of the FHWA, and therefore the state is tying its future to the policy of a third party that can change its policies and can do so without any notification or involvement of the state. As an example, Mr. Ottesen informed the committee that the FHWA has a policy regarding how scenic byway grants are selected. In 2008, FHWA changed those criteria, didn't announce that to the states, or ask states for input. The department happened to learn about this after staff read about it on a web site. 4:18:37 PM MR. OTTESEN then expressed concern that HB 372 doesn't allow any exemptions. There are frequently categories of projects that need exemption. For instance, an emergency response on a failing bridge or a wash out during a flood. Again, prescriptive language often gets interpreted in very specific ways before a judge and without exemption language there is no way out. In conclusion, Mr. Ottesen said that DOT&PF has implemented and already does CSS and the risk is that this legislation is prescriptive. 4:19:57 PM REPRESENTATIVE DOOGAN asked if Mr. Ottesen considers the use of the term "shall" as prescriptive. MR. OTTESEN replied yes, adding that he's also referring to [the way in which] it ties it to a list of things that the department has to do. He reiterated his earlier comments that there are other states with much more permissive language than that specified in HB 372. 4:20:29 PM REPRESENTATIVE DOOGAN related his understanding that HB 372 is intended to get DOT&PF to design projects in a certain way, which he said he wasn't sure how that could be achieved with permissive language. Therefore, he surmised that at times the department doesn't want to follow these requirements. MR. OTTESEN replied no, and added "We don't want to have ... someone be able to use this as a club against us if we have not talked to every single group because we didn't know about the new group that formed last week." Mr. Ottesen opined that the reference to all stakeholders is a fairly broad list. He then reiterated that DOT&PF already uses [CSS] in policy and design manuals and the department isn't being sued, and therefore [the existing process] is working successfully. He highlighted that the department does flex its design standards and engage stakeholders in the process. 4:22:33 PM CHAIR JOHANSEN suggested that Representative Doogan and Mr. Ottesen may be talking about two different "shalls." REPRESENTATIVE DOOGAN inquired as to what Mr. Ottesen means when he refers to prescriptive language. MR. OTTESEN deferred to other staff scheduled to testify. He then reiterated that only four states out of 42 or 43 have chosen to go the statutory route. If 90 percent of the states that have adopted CSS are doing so without statute, it can be done other ways, he opined. 4:23:43 PM REPRESENTATIVE DOOGAN surmised that DOT&PF would prefer not to pass HB 372, but if it is passed the department wants it changed. MR. OTTESEN, in response to Representative Doogan, confirmed that DOT&PF would prefer not to pass HB 372. However, if the legislation is passed, it would want to change it. In fact, the department did have a version of the legislation that doesn't use the CSS term of art, but it speaks to the principles of CSS. 4:24:19 PM PETER PUTZIER, Senior Assistant Attorney General, Transportation Section, Civil Division (Juneau), Department of Law, echoed Mr. Ottesen's testimony that the principle of CSS by itself isn't problematic. The question is regarding how to get it on paper if it is decided to be placed in statute. Mr. Putzier said he will discuss the six legal issues with Version L. Firstly, Section 1 is a mandate, but it is unclear how to meet that mandate. For instance, he questioned how early is "early enough" and what does "ongoing" mean. Section 1 opens up an immediate problem of implementation, which he said he would discuss later. Secondly, Version L requires DOT&PF to use a design process that ensures consistency with federal CSS principles. However, to his knowledge, no one can point to where these principles are or exactly how these principles are defined. A vague and ambiguous term is being applied. He then questioned how the standard can be met and compliance proven. He opined that CSS appears to be an "aspirational" goal, which really isn't a principle, to get the community involved in the design process. Thirdly, consideration of many specific factors must occur. The aforementioned is what Mr. Ottesen refers to as the prescriptive factors. Section 1 lists nine different factors. In so far as those factors are required, the question regarding whether each was adequately addressed is invited. Therefore, anyone who is disgruntled with any given project could challenge on the basis that the specific factors weren't adequately met. The best analogy is with the National Environmental Policy Act (NEPA), which is a procedural statute that was passed in 1970 by the federal government to consider environmental consequences. As everyone is aware, NEPA has engendered massive amounts of litigation charging that there was failure to adequately consider environmental consequences, the analysis was flawed in some manner, or all viable alternatives weren't considered. Therefore, even if the statute is merely procedural, it can engender a tremendous amount of litigation, he stated. 4:28:46 PM MR. PUTZIER turned to the fourth issue, which is something that he said he would need to follow-up. He noted that AS 19.10.160(a) specifies that DOT&PF must conform its standards as closely as practicable to those adopted by AASHTO, while in proposed AS 19.10.160(c) the legislation mandates compliance with principles in the CSS system. Therefore, he expressed the need to ensure that those two subsections aren't in conflict. Mr. Putzier moved on to his fifth concern regarding the conflict between AS 19.10.160(c) and (d) in which it's unclear whether it's permissive or mandatory to consult with affected citizens. Therefore, AS 19.10.160(c) and (d) need to be harmonized. With regard to the sixth concern, Mr. Putzier opined that there is a tort and civil liability aspect to this legislation that needs to be explored. A spectrum of design choices can result in a situation in which community/citizen involvement would've resulted in one choice, while the process resulted in another choice. The aforementioned, he opined, invites plaintiffs' attorneys to challenge the design decisions made as a result of this process. This is a very real danger, which seemed to be recognized in Hawaii where waiver of liability provisions were included. Mr. Putzier concluded by clarifying that he isn't arguing against CSS as an idea, which he characterized as a worthy concept. However, this legislation in its current form requires uncertain procedures and principles, and virtually guarantees litigation. 4:31:04 PM REPRESENTATIVE FAIRCLOUGH requested that Mr. Putzier speak to his experience with litigation on transportation projects. MR. PUTZIER informed the committee that he has been representing DOT&PF since December 1999 and represented DOT&PF, in a broad spectrum, regarding construction claims, administrative proceedings, and environmental litigation. He said that he has represented DOT&PF in numerous venues. REPRESENTATIVE FAIRCLOUGH inquired as to Mr. Putzier's experience with challenges to the NEPA process and the impact in terms of cost of the project and time involved. MR. PUTZIER acknowledged that once a project is disputed, it can take years and cost untold amounts of money in litigation fees and additional studies. In further response to Representative Fairclough, Mr. Putzier confirmed that DOL does bill DOT&PF, but he didn't know what it totals at the end of the year. He noted that he bills project by project, and thus could inform the committee of the legal fees by project. REPRESENTATIVE FAIRCLOUGH related her understanding that legal fees can cut both ways, that is litigation can mean that the department is challenged a lot or it isn't doing its job appropriately. 4:34:09 PM MR. PUTZIER, in response to Representative Doogan, confirmed that DOT&PF gets sued as it is. In further response to Representative Doogan, Mr. Putzier related his opinion that this legislation would result in more litigation. He echoed his earlier remarks that as consideration of these various factors are required, it invites the question regarding whether DOT&PF has done its job adequately. Therefore, an individual disgruntled with a project can result in a good faith argument that the department didn't adequately consider a specific matter or group. He further pointed out that the factors aren't very tangible and are factors on which reasonable people can differ. "In so far as reasonable can differ and we're requiring compliance, I see no other outcome but that there's probably going to be litigation engendered," he opined. 4:36:09 PM REPRESENTATIVE DOOGAN surmised then that there would be litigation to define what is not defined or insufficiently defined for the legal profession. Therefore, he asked if the lawsuits would taper off or continue. MR. PUTZIER reiterated his earlier analogy with NEPA litigation, for which there has been no clarity. In further response to Representative Doogan, Mr. Putzier confirmed that it's his opinion that this proposed legislation opens up a legal hole of undetermined depth for DOT&PF. 4:37:38 PM REPRESENTATIVE FAIRCLOUGH outlined the steps in the process of project proposal, public notification, design, and public comment. She opined that the time when one can make the most difference is about 15 years before a project starts. When a project is first proposed and public notice goes out, few come forward to speak. However, by the time the project reaches its design phase, more community members come forward since the project seems more real. The litigation arises in the first phase, she noted. As the process continues, more people become aware of the projects. Representative Fairclough related that she supports CSS, but recalled when it was used on 15th Avenue in Anchorage and the project went from a $1 million project to a $15 million project. The more groups that are involved, different ideas come forward, she said. She relayed that she has watched projects languish for 10 years because various groups feel disenfranchised. She suggested that she would be supportive if there was a site on which notice [of projects] was posted versus the state having to reach out to all groups. 4:42:50 PM REPRESENTATIVE DOOGAN clarified that he was trying to get a handle on the scope of the litigation on these projects. He said he is unwilling to open up more options to delay things, particularly when he believes there is already adequate opportunity to do so. Therefore, he said he will have trouble supporting HB 372 if it means that there will be more lawsuits, more delays, and higher cost projects. 4:44:02 PM REPRESENTATIVE FAIRCLOUGH pointed out that the legislature establishes law at a "30,000-foot level" and allows the departments to interpret that law. If CSS or its principles are already being utilized by DOT&PF, then it would seem to solve some of the problems, she remarked. 4:45:16 PM MARK NEIDHOLD, Chief Design & Construction Standards, Division of Design & Engineering Standards, Department of Transportation & Public Facilities, echoed earlier testimony that DOT&PF is already applying the principles of early and ongoing stakeholder involvement in the project development process. He specified that he chose not to use the term CSS because it's a moving target. As early as 1991 DOT&PF offered training classes to DOT&PF staff and consultants because it was the right thing to do to meet the needs of all the affected people. In 2003 and 2004 additional training regarding the flexibility that existed in the design standards was provided. Alaska is an AASHTO state and per the federal regulations, Alaska is required to use AASHTO's design standards on all highway projects that are part of the National Highway System. He noted that virtually all of those standards have been adopted for non-NHS projects and state-funded projects. Mr. Neidhold reiterated that the flexibility of CSS already exists in the [design] standards. There is a range of values/standards; AASHTO and FHWA have offered guidance with regard to applying flexibility in design issues. He informed the committee that the current environmental procedures manual and design procedures manual identify the department's expectation at a management level that the design project development staff use the early and ongoing stakeholder development and coordination process when the projects are developed. Currently, CSS isn't recognized by name. With regard to the comment that CSS is a moving target, Mr. Neidhold related that he has sat in on meetings of the AASHTO subcommittee on design at the federal level during which people have said that CSS stands for Consensus by all Stakeholders. The aforementioned is untenable and would be like trying to pass a bill unanimously. Furthermore, CSS includes language specifying involving all stakeholders, which Mr. Neidhold said is an impossible task. Mr. Neidhold informed the committee that his staff is updating the environmental procedures manual to include CSS, by name, while taking care to incorporate CSS, as practiced by Alaska DOT&PF. He echoed earlier testimony that since DOT&PF already uses CSS, it doesn't see the need to address it in statute due to the potential liability exposure. 4:50:56 PM MR. NEIDHOLD recalled Representative Doogan's earlier comment that DOT&PF doesn't want to have to apply CSS all the time, to which Mr. Neidhold noted his agreement. He related that there are many classes of projects in which the response to the public's need warrants moving ahead without an involved public involvement process. For example, a highway safety improvement project in which the department has identified a guardrail end terminal that isn't safe. It would be unreasonable to say that DOT&PF has to go through an involved public process in order to address that particular safety issue. Therefore, there are projects on which DOT&PF doesn't want to be required to use CSS. Mr. Neidhold then turned to Representative Fairclough's statements regarding the process. He pointed out that DOT&PF is charged with balancing the public need for the transportation system with the impacts to the individual property owners and other interest groups. The department, he opined, works hard to address the balance in a manner that results in the greatest public good with the least private harm. If prescriptive statutory language that could potentially be construed as requiring steps that the department was judged to have not done or done inadequately is used, it could potentially impair DOT&PF's ability to deliver projects, he opined. In conclusion, Mr. Neidhold said, "And the bottom line is it's not DOT's transportation system; the department is responding to the public's need for their transportation system and we work very hard through the public process to deliver projects that do just that ...." 4:54:52 PM MR. NEIDHOLD, in response to Representative Fairclough, confirmed that principles or early and ongoing public involvement are included. In further response to Representative Fairclough, Mr. Neidhold confirmed that as a matter of federal law, as part of Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), public involvement is required in the development of the initial plan. Under SAFETEA-LU, the federal funding for the highway transportation bill further required state transportation organizations to engage the public with amendments to that statewide transportation improvement plan (STIP). Therefore, there's a very prescriptive requirement for public involvement on the STIP. 4:56:01 PM REPRESENTATIVE FAIRCLOUGH clarified that she is interested in whether the federal government is already requiring CSS or not and whether the state is applying it through principles in the department's regulations, or is the department meeting the federal requirements in a different method than outlined in CSS. MR. NEIDHOLD responded that under the federal requirements for the development of the STIP for the development of highway system projects, early on in the development of the program/plan as well as in the development of individual projects, there are requirements for public involvement. Those requirements are being met under the department's current procedures. Under federal projects, the language in HB 372 wouldn't substantially change how the department does business with respect to those federal projects. With regard to state-funded projects, although there isn't law that requires that process, DOT&PF is already applying those. 4:57:45 PM REPRESENTATIVE FAIRCLOUGH asked if all the factors specified in the proposed legislation are being taken into account now and the sponsor is seeking alignment with the federal requirements. She then inquired as to what isn't in the legislation, besides early and often public involvement, that the sponsor is trying to address. MR. NEIDHOLD responded that he believes the answer to that is nothing. With regard to whether the department is addressing all those issues specified in every project, Mr. Neidhold reiterated that the department doesn't address all the issues for certain classes of projects whereas for the significant projects they are addressed. Version L, with the language which allows scaling the process commensurate with the complexity of the project, would change nothing short of any litigation regarding how effectively the department administered the process. The department's concern with HB 327 is in regard to the exposure to litigation because of the prescriptive list and the removal of the department's ability to apply principles that are appropriate for an individual project. 5:01:18 PM CHAIR JOHANSEN surmised that this committee is in favor of the concept of CSS, while the department is saying that it's already doing some of the things specified in the legislation. He related his understanding that the department's real concern is in regard to exposure to litigation. However, this committee's jurisdiction doesn't extend to legal matters. Therefore, he said he hesitated to have the drafter comment. Chair Johansen then said he would feel most comfortable requesting that HB 372 be sent to the House Judiciary Standing Committee. 5:03:06 PM REPRESENTATIVE BUCH said that while he can understand the issues raised by DOT&PF, those concerns have been addressed in Version L. In fact, he opined that the legislation offers less litigious language than the department already faces. The reason for coming forth with this idea is because of the existing process that has been prolonged due to litigation. By having early involvement in the process, it removes the chances of litigation and shortens the length of projects, he opined. With regard to the proposal to refer HB 372 to the House Judiciary Standing Committee, Representative Buch deferred to the committee's experience and expertise. 5:05:25 PM CHAIR JOHANSEN closed public testimony on HB 372. 5:05:41 PM REPRESENTATIVE FAIRCLOUGH moved to report CSHB 372, Version 25- LS0525\L, Kane, 3/13/08, out of committee with individual recommendations and the accompanying fiscal notes. REPRESENTATIVE DOOGAN objected. 5:06:04 PM REPRESENTATIVE FAIRCLOUGH clarified that she isn't trying to stop the process with her questions, but she noted the she hasn't had good experience with this in the past. Representative Fairclough informed the committee that she won't oppose moving Version L from committee, but will recommend Do Not Pass in the bill report. She opined that she has experienced so much litigation, in the form of delay tactics, along the lines of NEPA. She then related that she doesn't know how to appropriately allow community members who see something is wrong with the process to express that in an equitable manner without having the cost of the project increase. 5:07:44 PM REPRESENTATIVE DOOGAN withdrew his objection. 5:07:54 PM There being no further objection, CSHB 372(TRA) was reported from the House Transportation Standing Committee.
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