Legislature(1999 - 2000)
03/31/1999 06:00 PM Senate FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CS FOR SENATE BILL NO. 24(JUD)
"An Act relating to regulations; relating to
administrative adjudications; amending Rule 65, Alaska
Rules of Civil Procedure; and providing for an
effective date."
This was the fifth hearing for this bill.
Co-Chair John Torgerson reminded the committee that a
motion to adopt Amendment #14 was on the table.
Senator Dave Donley moved to withdraw his motion to adopt
Amendment #14. There was no objection.
Senator Dave Donley moved for adoption of the CS Version
"Y". It was adopted without objection.
Senator Dave Donley stated he would not offer Amendment
Senator Dave Donley spoke to Amendment #16 and moved for
adoption. Senator Lyda Green asked how Section 3 would
read. Senator Dave Donley read into the record. Without
objection adopted.
Senator Dave Donley moved for adoption of Amendment #17.
Co-Chair John Torgerson explained his amendment that
clarified language to page 2 line 25. Without objection, it
was adopted.
Senator Dave Donley moved for adoption of Amendment #18.
Co-Chair John Torgerson explained. Senator Gary Wilken
wanted to make sure that it changed the * substantially. So
the burden was up to the commissioner? Co-Chair John
Torgerson believed the burden would be up to the plaintiff.
Senator Dave Donley explained it would first be up to the
Department of Law then the plaintiff. Co-Chair John
Torgerson commented it should reduce the number of times
the regulation had to go out for public notice.
Senator Gary Wilken question. Co-Chair John Torgerson
respond.
Without objection Amendment #18 was adopted.
Senator Dave Donley moved for adoption of Amendment #19.
Co-Chair John Torgerson explained. The burden of proof
would be the same.
Without objection, Amendment #19 was adopted.
Senator Dave Donley moved for adoption of Amendment #20 and
explained that it had the same scheme as Amendment #16 and
addressed the cost benefit analysis. Without objection,
adopted.
JANICE ADAIR, Director, Division of Environmental Health,
Department of Environmental Conservation, testified to the
fiscal note. She appreciated the work on the bill but
still had some concerns about how the department would
instigate some of the changes. She spoke to the number of
comments received on some of the proposed regulations. If
she received only 13 comments, they would be required to
send out second notices to all 3000 people on the mailing
list. While she would like to hear from more people, she
did not.
She noted the prior amendment to the fiscal note. The
highest cost to do the notices was newspaper publishing and
printing of the notices. Those costs were contained in the
contractual component.
Senator Loren Leman spoke to the number and length of
public notices published in newspapers. Janice Adair
detailed the requirements of public notices.
Senator Gary Wilken referred to Amendment #18 and the
addition of the word, "substantially" Janice Adair said it
did somewhat, but she was still unsure what substantially
meant in relationship to regulation changes.
Senator Gary Wilken thought it was the intent of the
amendment was to prevent from re-sending additional public
notices. Co-Chair John Torgerson responded not
necessarily. Senator Dave Donley agreed and said there was
a reason because if there was a substantial change, the
public may want to know of the changes.
Senator Gary Wilken referred to page 2 line 25 and the
relationship between the cost benefit analysis and the
fiscal note. He asked for clarification. Senator Dave
Donley replied there were three potential scenarios. The
department could research in the Legislative Library.
Second, *. If the commissioner found that the cost of doing
the analysis was greater than the benefit of the
regulation, there was an exemption. He said there were
about five other options.
Senator Gary Wilken asked if that applied to legislation
that was in place for over ten years. Senator Dave Donley
said it was. Senator Gary Wilken asked if Senator Dave
Donley would consider an amendment to limit this bill to
legislation passed in the past few years. Senator Dave
Donley said the point was to require the cost benefit
analysis to determine the impact to the public.
Senator Gary Wilken moved for adoption of Amendment #21.
This would delete language from page 4 lines 21-29. Co-
Chair John Torgerson objected and asked if this reflected
current statute. Senator Gary Wilken affirmed.
Senator Loren Leman felt that to delete members of the
standing committees would be a mistake. Senator Gary Wilken
withdrew his motion.
Senator Loren Leman questioned the mailing list of 3000
names and wondered how that list could be shortened.
Janice Adair noted the provision in the bill requiring all
interested parties be included.
Senator Loren Leman asked how good Janice Adair felt that
list was. Janice Adair replied that they did remove names
for undeliverable mail. Senator Loren Leman asked if they
ever did mailouts to determine interest in remaining on the
mailing list. She did not have very good response and then
received complaints from those who were purged as a result.
She added that the regulations were posted on the Internet.
Senator Dave Donley moved to amend the Department of
Environmental Conservation fiscal note as Amendment #22 to
delete all components but supplies and contractual for each
year. The contractual component would be reduced to $35.75.
Without objection, it was adopted.
Senator Dave Donley moved to amend the Department of Law
fiscal note to reflect the Department of Law memo as
Amendment #23. Without objection, it was also adopted.
Carol Carroll testified to the Department of Natural
Resources fiscal note.
Senator Dave Donley moved for adoption of Amendment #24,
which would amend the Department of Natural Resources
fiscal note. Without objection, it was adopted.
JACK KREINHEDER, Senior Policy Analysis, Office of
Management and Budget, testified. He asked for
clarification of dec fiscal note. Senator Dave Donley said
the contractual component was reduced 50 % and the supplies
remained the same. All other components were deleted.
Tape: SFC - 99 #76, Side B
Jack Kreinheder said that helped. However, the extent of
the fiscal note reductions would make it difficult to
implement the bill. He had trouble understanding the intent
for exemptions of the cost benefit analysis. They were not
done in an hour.
It seemed clear to him that the regulatory staff in the
state was already under funded. Therefore the ability to
absorb the costs of the analysis was limited.
He detailed that an acceptable cost benefit analysis would
not be possible under this provision so he assumed the
committee intended only cursurary analysis be done.
Senator Dave Donley said that was not the intent. They
wanted the agencies to exercise common sense.
Co-Chair John Torgerson noted that many regulations were
outside the statutory authority.
DEBORAH BEHR, Assistant Attorney General, Legislation and
Regulations Section, Civil Division, Department of Law,
testified. She had questioned many in the timber and other
industries on this matter and was told that this would be a
new tool that could be used to halt development. Parties
wishing to prevent timber sales and other development could
use this process to stop or slow such sales.
In the section addressing supplemental notices, there was
some question on whether the burden of proof would be
placed on the person contesting the regulation. Several
areas of the bill lent the process to inadvertent errors.
She suggested if the intent was to place the burden of
proof on the challenger, it needed to be stated in the
supplemental notice as it was done in other provisions.
She addressed the fiscal note. Some of the costs listed
would be to cover the preparation of the regulation to
ensure they would be defensible in court. The remaining
costs would be incurred for defense of the regulations when
they actually went to court.
She spoke to the Department of Law's ability to defend the
provisions of the bill. She referred to sections 2, 3 and
13 as the greatest concerns. There would need to be an
excellent record to show that the regulation was necessary.
Frankly, most regulations in the environmental area were
compromises, she warned. The result was that these were
often not the least intrusive methods, but rather the
agreement of the involved parties as a compromise.
She believed that very few state regulations would be
required by substantial state interest, which was another
provision of the bill.
She anticipated litigation to determine the provisions of
the bill.
She felt this would result in an unsettling environment for
business and investment in the state.
GARVAN BUCARIA, testified via teleconference from Mat-Su.
He spoke to the definition of "reasonable" and suggested
that word meant different things to different people. He
commented that the bill contained superlative language and
needed to be cleaned up.
He was unsure which state agencies the current bill would
encompass.
Co-Chair John Torgerson clarified that the bill excluded
everyone but Department of Environmental Conservation, the
Department of Natural Resources and the Division of Habitat
and Restoration. Garvan Bucaria could not go along with
that since those agencies were responsible for the health
and safety of the state. They had enough to do without the
extra burden placed on them by the Legislature to do these
analyses. He spoke of water quality standards in Wasilla
saying the only protection was these regulations.
Co-Chair John Torgerson debated that this would not change
the way water would flow into Wasilla Lake. Garvan Bucaria
countered. He was concerned about the regulations being
less effective since the agencies were working on limited
resources.
TERESA WILLIAMS, via teleconference from Anchorage. She
was on line to address Amendment #11, which was not
offered. She was concerned that the sponsor might offer it
in the future.
Senator Dave Donley took the testimony from Office of
Management and Budget to heart and noted language on page 2
line 19 saying that was included early in the process and
was no longer needed.
Senator Dave Donley moved to delete page 2 line 17 "or that
the cost and benefits cannot be easily determined" as
Amendment #25. Senator Loren Leman or Senator Gary Wilken
objected. Senator Dave Donley commented that the preceding
line in the bill addressed the issue of when the cost of
the analysis was prohibitive.
Senator Gary Wilken felt they should defer to the
commissioner's judgement and this amendment would nail down
the options more than what was necessary.
Amendment #25 was adopted by a vote of 4/2/3. Senator Gary
Wilken and Senator Loren Leman voted nay. Senator Al Adams,
Senator Randy Phillips and Senator Sean Parnell were
absent.
Senator Dave Donley made a motion to move from committee CS
SB 24 (FIN). Senator Pete Kelly objected.
Break 7:05 PM / 7:06 PM
Senator Pete Kelly removed his objection and the bill moved
from committee without objection.
Break 7:08 PM
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