Legislature(2007 - 2008)CAPITOL 17
03/06/2008 01:00 PM House TRANSPORTATION
| Audio | Topic |
|---|---|
| Start | |
| SB78 | |
| HB372 | |
| HB283 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 283 | TELECONFERENCED | |
| *+ | HB 372 | TELECONFERENCED | |
| *+ | SB 78 | TELECONFERENCED | |
| *+ | HB 275 | TELECONFERENCED | |
HB 372-HIGHWAY DESIGN FLEXIBILITY/MUNICIPALITIES 2:11:40 PM CHAIR JOHANSEN announced that the next 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." REPRESENTATIVE BOB BUCH, Alaska State Legislature, noted that HB 372 is the result of many conversations with his constituents about the roads in District 27, which includes the Ted Stevens Anchorage International Airport. The bill would require the Department of Transportation & Public Facilities (DOT&PF) to implement Context Sensitive Solutions (CSS) when designing and reconfiguring roads. He explained that CSS is the process that expands community involvement and brings in experts with different perspectives when a road is being designed or redesigned. This process is being used to improve roads all over the U.S. with great success, he said, and because of its success, the Federal Highway Administration (FHWA) listed adoption of CSS in all 50 states by 2007 as one of its strategic goals. Context Sensitive Solutions would be a great system to improve Alaska's roads. He said there is a proposed committee substitute (CS) that is the result of a three-hour meeting yesterday between his staff, DOT&PF, and Frank McQueary of the Anchorage Road Coalition. REPRESENTATIVE NEUMAN moved that the committee adopt as its working document the proposed CS of HB 372, labeled 25-LSO525\K, Kane, 3/6/08 (Version K). There being no objection, Version K was adopted as the working document. JEFF OTTESEN, Director, Division of Program Development, Department of Transportation & Public Facilities (DOT&PF), stated that yesterday's three-hour meeting included discussions of the bill, examples of good and bad projects, and the things that could have been done better in the past. He said DOT&PF has a CSS policy that was adopted and is in use, and several projects that went through the CSS process have been built, including the new Elmore Road and the C Street extension. The proposed Bragaw Interchange at the Glenn Highway also went through the CSS process. Context Sensitive Solutions relies upon there being flexibility in design standards, explained Mr. Ottesen. While not every project has taken advantage of that flexibility, the department did adopt flexible design standards 10 years ago. Thus, CSS is not a new concept to the department, nor is flexible design standards. 2:16:23 PM MR. OTTESEN said the previous bill troubled the department because it mixed design standards with design process and used the two ideas interchangeably as if they were the same thing. They are quite different in a legal sense, he stressed. He said the department proposed that the section on standards be left alone and that the focus be on design process. So, Section 1 now adds a new subsection to the statute about following a CSS process and Section 2 speaks to the types of organizations that would be considered to be invited to the table depending upon the particulars of a project. Not every project is going to follow CSS, only those projects that involve design, or new construction, or some new change to the roadway. He said the department is now much more comfortable with the bill, but it is not yet 100 percent there. The bill is much better because it got rid of the legal conundrum, but there are still a few tweaks the department would like to work on with the sponsor. Time restraints precluded a full review, he explained. 2:18:48 PM REPRESENTATIVE NEUMAN requested Mr. Ottesen to go through the bill and tell the committee which areas it supports and which it does not and why. MR. OTTESEN responded the department's lack of support is not having had the chance to fully vet the bill with some other important people. The Department of Law (DOL), which defends DOT&PF in tort and other claims, has not seen the CS. He noted that DOT&PF submitted the long list of groups in Section 1(d). However, the question is when would these groups be necessary and could it create a legal challenge if every group is not consulted by the department for every project. Right now the department's process is in policy, he explained. When the process is put into statute, it carries greater weight and it creates a higher duty for the department and this is why there needs to be vetting by the DOL. 2:20:59 PM REPRESENTATIVE NEUMAN offered his opinion that DOT&PF could address a lot of this through regulations. He referenced a statement made by Mr. Ottesen at another hearing about the department needing to start over whenever changes are made to a federally funded project and how this adds costs. He requested Mr. Ottesen to address this issue within the context of HB 372. MR. OTTESEN replied an answer is hard because every project has a specific set of facts. It could be argued that CSS will make a project more successful because it brings all interests to the table and tries to satisfy as many points of view as possible. This is not to say that CSS will satisfy every point of view since some points of view will be tugging in different directions and the department must somehow find the common ground. For example, truckers may want wider lanes for a larger radius around corners, but pedestrians may want narrower lanes and a smaller radius at corners. The department must show that it went through the process as fairly as possible. He said he thinks CSS is a good process, but that the department does not want it to be used as a way to stall projects because it becomes something that can be litigated. 2:23:10 PM REPRESENTATIVE NEUMAN noted that DOT&PF already does everything it can to accommodate CSS in the best way possible through its extensive public process. Yet, the number of lawsuits against projects has increased and the delays have substantially increased the costs of construction. He inquired whether HB 372 would bring about more lawsuits against the department. MR. OTTESEN answered DOT&PF has not yet had a chance to ask the Department of Law for its opinion as to whether there is fuzzy language in the bill. It is fuzzy language that often leads to debates in front of a judge, he noted. While DOT&PF has a CSS policy and is implementing it, the department is not 100 percent there because it takes time and training for CSS to get inoculated into the brain of every design engineer so that each engineer knows he or she has the latitude to use CSS. Trainers have been brought in twice and the department is training CSS trainers within its ranks. One irony, he related, is that several of the examples raised in the discussion with Mr. McQueary would have been made better by CSS, but they were not DOT&PF projects and HB 372 would only apply to DOT&PF projects. 2:26:01 PM REPRESENTATIVE NEUMAN inquired whether use of the word "shall" [page 2, line 9] locks DOT&PF into having to consult all of the agencies that are listed on [page 2, lines 12-26]. MR. OTTESEN replied the department had a long philosophical conversation with Mr. McQueary about whether this was necessary since DOT&PF has already adopted this policy and is rapidly trying to implement it. The feeling that was heard, he related, is that it is important to cement this into law so that a change in DOT&PF leadership over time could not just wash it away. However, in his experience these things become standard practice and do not tend to go away - more processes tend to be added over time rather than taken away. REPRESENTATIVE DOOGAN asked whether DOT&PF is currently prevented from doing anything that is in HB 372. MR. OTTESEN answered no. The vast majority of this is being done now and that is why the department is at the 80 percent comfort level. 2:29:15 PM REPRESENTATIVE DOOGAN inquired whether Arctic Boulevard [in Anchorage] is an example that was not a DOT&PF project. MR. OTTESEN responded he does not know the details of the Arctic Boulevard project, but he knows it was controversial. REPRESENTATIVE DOOGAN remarked that if there is anything in HB 372 that would prevent a recurrence of the Arctic Boulevard controversy, then he will support this bill. He said he recognizes that CSS is a good thing, but he does not want to open up any more avenues for delay than what there already are. Would HB 372 open up more avenues, he asked. MR. OTTESEN replied he cannot say absolutely without talking to the Department of Law. He pointed out the language on page 2, lines 10-11, which states, "When appropriate for a particular project, the commissioner shall consult with...." Thus, he explained, there is a judgment about what is "appropriate" on a particular project and if the department chooses not to go to all 11 groups on every project, it could be challenged on that simple fact alone. 2:30:51 PM REPRESENTATIVE DOOGAN surmised Mr. Ottesen's concern is that someone will contest the department's interpretation of "appropriate". MR. OTTESEN answered, "Precisely." That is a judgment that is being made and judgments are often open to multiple interpretations. 2:31:23 PM REPRESENTATIVE KELLER inquired whether Mr. Ottesen thinks delays could be reduced if the spirit of HB 372 is followed through the early and effective involvement of the groups. MR. OTTESEN responded that is precisely the successes that people point to when they talk about CSS. Bringing all of the various interest groups to the table at the same time allows everyone to hear the concerns of the others in order to come up with alternatives that are suitable to all. REPRESENTATIVE KELLER suggested that some intent language in the bill might be appropriate. MR. OTTESEN stated he did not have an opportunity to speak with Representative Buch about the department's remaining concerns prior to this committee meeting because of the floor session. 2:34:13 PM REPRESENTATIVE DOOGAN asked how long Mr. Ottesen thought it would take to get the department's concerns checked out. MR. OTTESEN replied 24 hours. CHAIR JOHANSEN inquired whether the department currently has a specific list of groups that it contacts for proposed projects. MR. OTTESEN answered the project manager or the project engineer typically learns what the issues are from scoping meetings that are held in various communities. He cited the new Bragaw Interchange across the Glenn Highway in Anchorage as an example of this. CHAIR JOHANSEN surmised Mr. Ottesen's concern is that the flexibility the department now has for inviting groups to the table will be eliminated if the eleven groups are codified. MR. OTTESEN responded he would like to make sure it is the right 11 groups, maybe it should be 13. For instance, transit organizations were only added to the list yesterday. He said he would like to find a way to say that the department has talked to these groups without making it a "gotcha" if the right group is accidently not invited. CHAIR JOHANSEN stated that is his point. Having a codified list could result in needing to come back to the legislature periodically to add to the list of groups. The concept of having the various entities at the table gives them ownership of the process and ultimately reduces the problems of litigation. He presumed Mr. Ottesen is looking for a way to make the rigidity in the bill more flexible. MR. OTTESEN replied yes, flexible in both directions because maybe the department will invite groups that were not thought of during the previous three-hour work session. 2:38:27 PM REPRESENTATIVE DOOGAN agreed it is a lot better to fight skirmishes when they are small and at the front of the project rather than to fight them in court when trying to pour the concrete. He said he shares Chair Johansen's concern about having to periodically add groups to the list. As opposed to a list, he asked, was there any consideration given to just writing more general language that would allow DOT&PF to include the appropriate groups or individuals in the process. MR. OTTESEN answered there was a list in the previous version of HB 372 and the department added 3 or 4 categories to it. There was not enough time to think about that, he said, and this is the one section that troubles him. It is an evolving world and the groups that can be thought of today will not be the groups that are thought of five or fifteen years from now. 2:40:06 PM CHAIR JOHANSEN announced he will hold HB 372 in order to allow the sponsor and DOT&PF to fix the last 20 percent of the bill. 2:40:39 PM FRANK MCQUEARY, President, Anchorage Road Coalition, noted the Anchorage Road Coalition is a non-profit group comprised of members of the Anchorage community. He said the coalition's main function is education and advocating for the implementation of CSS. He informed the committee that Anchorage Metropolitan Area Transportation Solutions (AMATS) adopted the CSS policy and is now going through the public process to make it a statutory municipal policy. The concept of CSS is to involve all of the stakeholders in a community early and frequently in the process in order to eliminate many problems. It was started in 2000 at an American Association of State Highway and Transportation Officials (AASHTO) conference. A pilot project was started in five states to try to understand how something could be implemented that would improve processes, create greater satisfaction with projects, eliminate controversy and problems, and speed up the process. The conference title, "Thinking Beyond the Pavement," was the professional body's recognition that transportation actions have tremendous impact on lots of things besides just automobiles and moving traffic. 2:43:53 PM MR. MCQUEARY related that [AASHTO's] web page describes CSS as a collaborative, interdisciplinary approach that involves all stakeholders to develop a transportation facility that fits its physical setting, preserves scenic, aesthetic, historic, and environmental resources while maintaining safety and mobility. Alaska is unusual in that it was not the engineering profession itself that introduced this initiative, although the committee is being told that DOT&PF practices it. Mr. McQueary acknowledged that DOT&PF does practice some parts of CSS. He said the coalition is pushing for statutory implementation of CSS because, as seen from other parts of the country, CSS is most successful when implemented by statute. It has been implemented by statute in about half of the states where it is in practice. He stated good design takes time and bad design takes longer because if it is bad design there will be controversy and legal delays. 2:46:05 PM MR. MCQUEARY stated that a number of state, municipal, and private engineers have offered encouragement to the Anchorage Road Coalition, but they have not wanted to be leaders in this because of resistance at state and municipal levels. He said 14 states had implemented CSS statutorily by 2003, and he believes it had grown to about 28 states two years ago. It is a strategic goal of the Federal Highway Administration to have a 50-state adoption of this policy, he related. It is nice to say it is already being done, but if it is not a written policy it is subject to the vagaries of who is in office at any particular time. One real objective of [CSS] is to avoid the re-work cycle and the associated costs of doing something twice. 2:48:55 PM MR. MCQUEARY stated that the statutory language in the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) basically says stakeholders will be included early in the process. It is in the best interests of DOT&PF to recognize who the vested interests are - who will be damaged, who is going to benefit, and what the costs are. Improper pre-design analysis is the cause of much controversy and many delays. He said the language in SAFETEA-LU for inclusion of groups states "including but not limited to". He acknowledged there are notable instances where DOT&PF is trying to implement CSS. However, CSS is about much more than the public process, he said. The public is only one stakeholder. There is an economic impact, up or down, on property values. A freeway has one overriding purpose and that is maximum mobility. In urban areas there are conflicts because more is trying to be done than just maximum mobility and this is where CSS came from in the Lower 48. The CSS process is already developed and not something new, so the expertise and resources are already available for implementing it in Alaska. 2:53:11 PM MR. MCQUEARY noted that, according to statistical data, environmental issues were not the majority cause for project delays. The top causes for delay were lack of funding, controversy, or a low priority within the transportation departments themselves. The track record shows that states with CSS have more projects built quicker with less controversy. REPRESENTATIVE KELLER thanked Mr. McQueary for testifying and said he really likes the concept and hopes the wording can be worked out. MR. MCQUEARY said that, based on the experience of the other states, implementation of CSS would improve the process and would lower or have no impact on the legal risks of the transportation department. The FHWA has published a manual entitled, "Flexibility in Highway Design," which is specifically intended to educate the profession to how much latitude it has in using the "green book" as a starting point. He agreed with Mr. Ottesen that a lot of the engineers in DOT&PF are not there yet. 2:57:16 PM MR. MCQUEARY noted the multi-disciplinary team that addresses a lot of the issues going in actually prepares the engineers to better defend the project downstream in a much less controversial environment. If there is not a good process then there will not be a good result. Alaska needs to extract the most value out of every dollar that it can and the CSS process will help do that. He said he is willing to engage in some tweaking as long as it does not neutralize the value of the policy. He cautioned that sometimes the search for perfection is the enemy of progress. 2:59:20 PM CHAIR JOHANSEN reiterated he is holding HB 372 over so DOT&PF and the sponsor can get together. He inquired about the SAFETEA-LU language regarding organizations. MR. MCQUEARY advised the language should recognize the possibility that there could be other groups than those that are listed and it should recognize the possibility that there will be projects where some of the groups will not have any relevant interest or input. Part of CSS is that transportation departments pro-actively reach out and understand who the stakeholders are and then bring them into the discussion. Putting all of the stakeholders into a room provides a totally different result than when each stakeholder is talked to sequentially, as has been done in the past. The dynamic of successful negotiation is to have everyone in the same room so that everyone understands all of the issues and realizes that the end product is going to be a compromise. CHAIR JOHANSEN encouraged Mr. McQueary, the sponsor, and DOT&PF to get together. He invited Mr. McQueary to be online during the committee's discussion of the bill next week. 3:01:30 PM REPRESENTATIVE BUCH drew attention to page 2, line 10, of Version K. He explained that this is discretionary language and is inclusive language, not exclusive language. So, these are listed recommendations of parties to include, it is not designed to exclude. It is a starting point and is not meant to dictate for every project. He said as the sponsor he is trying to get projects started and completed in an efficient manner in an effort of saving consumer and public funds. REPRESENTATIVE NEUMAN asked whether it is DOT&PF that decides "When appropriate" as stated on page 2, line 10. REPRESENTATIVE BUCH responded it is the commissioner who shall deem when it is appropriate, and it does not exclude any group. It is up to the commissioner to decide which groups are pertinent. It is very discretionary language. CHAIR JOHANSEN stated the committee will look at this section next week. [HB 372 was held over.]
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