Legislature(1999 - 2000)

03/24/1999 06:09 PM Senate FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                                                                                                                                
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 third hearing for this bill.                                                                                       
                                                                                                                                
Co-Chair John Torgerson noted the new CS Version "W" before                                                                     
the committee did not incorporate the removal of Section 8                                                                      
from CS Version "V", as amended by the committee in it's                                                                        
previous hearing.                                                                                                               
                                                                                                                                
Senator Dave Donley, as sponsor of that amendment,                                                                              
understood the difficulty in removing the section and had                                                                       
no objection to it remaining in the bill. He moved for                                                                          
adoption of CS SB 24 Version "W" as a Workdraft.  Without                                                                       
objection, it was adopted.                                                                                                      
                                                                                                                                
It was noted that earlier Amendments 2, 3 and 4 were                                                                            
redrafted and renumbered Amendments 5, 6 and 7 to conform                                                                       
to CS Version "W".                                                                                                              
                                                                                                                                
Senator Sean Parnell moved for adoption of Amendment #5.                                                                        
Co-Chair John Torgerson explained the amendment a technical                                                                     
recommendation from the Department of Law. It would delete                                                                      
"the division of habitat and restoration of" and insert                                                                         
"for habitat and restoration programs". The division was                                                                        
not created by statute but by regulation. Therefore there                                                                       
was no official division and this amendment would conform                                                                       
the bill to law.  The amendment would also delete,                                                                              
"designated state entity" and insert, "designated state                                                                         
agency".                                                                                                                        
                                                                                                                                
Senator Randy Phillips asked for clarification that the                                                                         
habitat and restoration division in the Department of Fish                                                                      
and Game was not created by statute. Co-Chair John                                                                              
Torgerson said it was created by Executive Order and then                                                                       
regulations were adopted to operate the programs.                                                                               
                                                                                                                                
Amendment #5 was adopted without objection.                                                                                     
                                                                                                                                
Senator Al Adams moved for adoption of Amendment #6.                                                                            
Senator Dave Donley objected. Senator Al Adams explained                                                                        
that this would limit the use of supplemental notices for                                                                       
Department of Environmental Conservation regulations                                                                            
relating to domestic wastewater disposal, food service                                                                          
programs and the solid waste management program. He said                                                                        
these regulations were most likely to affect citizens who                                                                       
were unfamiliar with the regulation process and would not                                                                       
benefit from the additional notices.  This would be cheaper                                                                     
to operate and make regulation adoption easier.                                                                                 
                                                                                                                                
DEBORAH BEHR, Assistant Attorney General, Legislation and                                                                       
Regulations Section, Civil Division, Department of Law,                                                                         
came to the table at the request of Senator Al Adams. The                                                                       
amendment would create a pilot project out of the programs                                                                      
of the Department of Environmental Conservation. These                                                                          
programs were selected because it was felt they affected                                                                        
citizens who did not regularly deal with regulations and                                                                        
therefore would have smaller fiscal notes.                                                                                      
                                                                                                                                
Senator Dave Donley commented that the bill as it was                                                                           
included the programs mentioned plus others from Department                                                                     
of Environmental Conservation. He said that the bill was                                                                        
narrowed to only include the Department of Environmental                                                                        
Conservation, Department of Natural Resources, and the                                                                          
Department of Fish and Game, habitat and restoration                                                                            
programs. Therefore, it was already focused to the most                                                                         
problematic programs.                                                                                                           
                                                                                                                                
Senator Gary Wilken asked if this amendment would narrow                                                                        
the bill down further.  Senator Dave Donley answered it                                                                         
would. Co-Chair John Torgerson added that it would exclude                                                                      
all the other programs listed in the current CS.                                                                                
                                                                                                                                
Amendment #6 failed to be adopted by a vote of 1-8. Senator                                                                     
Al Adams cast the yea vote.                                                                                                     
                                                                                                                                
Senator Al Adams moved for adoption of Amendment #7.                                                                            
Senator Dave Donley objected. Senator Al Adams spoke to the                                                                     
motion.                                                                                                                         
                                                                                                                                
                                                                                                                                
Tape: SFC - 99 #63, Side A    8:07 PM                                                                                           
                                                                                                                                
                                                                                                                                
Senator Al Adams continued to speak saying the amendment                                                                        
would reduce the number of public notices needing to be                                                                         
sent.  It would also make an efficient use of the Internet                                                                      
and allow for a shorter turn around time for comments on                                                                        
proposed regulations. It would make the process more                                                                            
predictable for business and eliminate reoccurring cycles                                                                       
of revisions and comment periods.                                                                                               
                                                                                                                                
Deborah Behr commented that this amendment addressed the                                                                        
most problematic sections of the bill. She explained the                                                                        
process for adopting regulations required under the current                                                                     
bill regarding timber sales. There was no end to the number                                                                     
of times required for a proposed regulation to be sent out                                                                      
for public comment. She spoke of concerns about missed                                                                          
construction seasons and missed timber sales. This                                                                              
amendment would reduce costs by limiting to provisions to                                                                       
pilot programs.                                                                                                                 
                                                                                                                                
Senator Randy Phillips asked when was the last time the                                                                         
state had a timber sale.  Deborah Behr did not know and                                                                         
said she would have to ask Department of Natural Resources.                                                                     
However, this provision would also apply to air quality                                                                         
issues.                                                                                                                         
                                                                                                                                
Senator Dave Donley asked what was different between this                                                                       
amendment from what the departments currently did.  Deborah                                                                     
Behr detailed the steps of the current process. So long as                                                                      
the proposed regulation fit the scope of the public notice,                                                                     
the commissioner had the discretion to adopt the change                                                                         
without further public comments.  This amendment would                                                                          
remove that discretion, but only for one round of public                                                                        
comments. Senator Dave Donley responded that while this was                                                                     
a step toward the original intent of the bill, it did not                                                                       
go far enough. It should not be limited to one round. If a                                                                      
person agreed with the first regulation proposal and chose                                                                      
not to comment, he or she would then not be notified of the                                                                     
next proposed change, which may be significantly different.                                                                     
                                                                                                                                
Senator Pete Kelly asked Deborah Behr to comment on Senator                                                                     
Dave Donley's statement. She said Senator Dave Donley                                                                           
raised a point. How do people who didn't comment the first                                                                      
round have an opportunity to be noticed of subsequent                                                                           
changes? She suggested that those interested would follow                                                                       
the process on the Internet.                                                                                                    
                                                                                                                                
Amendment #7 failed to be adopted by a vote of 1-8. Senator                                                                     
Al Adams cast the yea vote.                                                                                                     
                                                                                                                                
Senator Al Adams moved for adoption of Amendment #8. Co-                                                                        
Chair John Torgerson objected. Senator Al Adams explained                                                                       
the amendment would remove Section 4, requirement for a                                                                         
cost benefit analysis for new regulations, which would be                                                                       
costly.                                                                                                                         
                                                                                                                                
Deborah Behr further explained the problems the                                                                                 
Administration had with Section 4 of the bill because of                                                                        
its vagueness. It did not define the costs to benefit the                                                                       
public requirement. She spoke of the difficulty to decipher                                                                     
when there were competing interests to the public about a                                                                       
proposed regulation such as with timber sales, saying it                                                                        
would be difficult to figure what was appropriate.                                                                              
Determining the cultural impact to the community into the                                                                       
cost of development.  There would be many court challenges                                                                      
based on this point. She also referred to small business                                                                        
waivers and the need to determine if there was a public                                                                         
cost benefit under the requirement of the bill.                                                                                 
                                                                                                                                
She continued saying this amendment was an expansion of                                                                         
Senator Pete Kelly's suggestions for serious consideration                                                                      
of costs. The Department of Law felt this solution would be                                                                     
workable and would have no fiscal impact to the state.                                                                          
                                                                                                                                
Co-Chair John Torgerson noted he added the cost benefit                                                                         
analysis to the section of the CS after a sidebar with                                                                          
Senator Dave Donley. Senator Dave Donley commented that the                                                                     
added language was only to a portion of the section. This                                                                       
amendment would remove the entire section. He spoke to the                                                                      
rest of the section. First, the Senate Judiciary Committee                                                                      
had adopted many provisions to soften the effects of the                                                                        
cost benefit. He detailed those provisions noting the added                                                                     
flexibility and safeguards.                                                                                                     
                                                                                                                                
Co-Chair John Torgerson commented that the greatest                                                                             
flexibility his CS added to the bill was to page 2 lines                                                                        
24-28, which dictated that a cost benefit was not necessary                                                                     
if the cost to implement the regulation was identified in                                                                       
the fiscal note. He said the intention was to stop the                                                                          
Administration from adopting regulations that went beyond                                                                       
the scope of the enabling or authorizing legislation. If it                                                                     
would, the agency would have to return to the Legislature                                                                       
with a request to change the statute to conform to their                                                                        
proposal. The intent was to lessen the impact on the fiscal                                                                     
notes of this bill.                                                                                                             
                                                                                                                                
Senator Dave Donley pointed out a further ultimate                                                                              
safeguard. Although the Legislature hoped that the                                                                              
Administration would follow the intent of the limited                                                                           
application of the legislation, if something did go wrong,                                                                      
there would be this savings clause dictating that the                                                                           
regulation may not be adopted because the agency failed to                                                                      
comply with the section. This would prevent lawsuits,                                                                           
according to Senator Dave Donley.                                                                                               
                                                                                                                                
Co-Chair John Torgerson added that there was also                                                                               
conforming section on page 5 lines 11-16. It clearly stated                                                                     
that if a copy of the fiscal note identified in the front                                                                       
section were available from the designated state agency                                                                         
then the cost benefit analysis would not be required.  He                                                                       
felt that showed the clear intent of the Legislature.                                                                           
                                                                                                                                
Amendment #8 failed to be adopted by a vote of 1-8. Senator                                                                     
Al Adams cast the yea vote.                                                                                                     
                                                                                                                                
Senator Dave Donley spoke to Amendment #9. He noted the                                                                         
Senate Judiciary Committee version of the bill, which had                                                                       
applied to most of state government rather than the 3                                                                           
departments currently, there was a general provision that                                                                       
addressed problematic question of agency heads not                                                                              
accepting the findings of hearing officers. Under their                                                                         
existing powers of the Administrative Procedures Act, the                                                                       
commissioners would remand the decisions back to the                                                                            
hearing officers because they didn't agree with the                                                                             
findings. There was no standard in existing law dictating                                                                       
when a commissioner could remand a decision back for more                                                                       
facts. He felt there needed to be some sort of standard                                                                         
inserted. This amendment contained the language drafted in                                                                      
the Senate Judiciary Committee hearings. He said there had                                                                      
been discussion about another vehicle to do this. One was                                                                       
the proposed constitutional amendment recently introduced                                                                       
by the Senate Judiciary Committee providing that a separate                                                                     
department conduct regulation hearings. He felt that the                                                                        
odds of the constitutional amendment being adopted were                                                                         
slim and suggested this amendment would help the situation.                                                                     
He also felt a change to the Administrative Procedures Act                                                                      
would also be helpful.                                                                                                          
                                                                                                                                
He wished for these provisions to apply to all departments,                                                                     
not just the three left in the bill. He wanted a general                                                                        
across the board provision. He welcomed any suggestions to                                                                      
accomplish the goal of preventing the commissioners from                                                                        
remanding hearing officer decisions without valid grounds.                                                                      
                                                                                                                                
Senator Dave Donley moved for adoption of Amendment #9.                                                                         
Senator Al Adams objected.                                                                                                      
                                                                                                                                
Deborah Behr was invited to comment on the amendment.  She                                                                      
pointed out that hearing officers were not confirmed                                                                            
cabinet officers and never came before the Legislature for                                                                      
confirmation. Therefore, this amendment would allow an                                                                          
unconfirmed cabinet officer, generally a private attorney,                                                                      
to trump the decision of a confirmed cabinet officer.  Most                                                                     
regulations were adopted by boards or commissions made up                                                                       
of lay people appointed by the Governor and confirmed by                                                                        
the Legislature. There could be a hearing officer who was                                                                       
not a licensed doctor issuing a decision that went against                                                                      
medical practice, because the attorney had no knowledge. If                                                                     
the agency could not find a substantial factual question                                                                        
would be in court over what that the substantial question                                                                       
was. Even with that, the Lieutenant Governor would have to                                                                      
grant approval.  She felt this would change the balance of                                                                      
power.                                                                                                                          
                                                                                                                                
Senator Dave Donley asked if Deborah Behr had any                                                                               
suggestions for additional language to the Administrative                                                                       
Procedures Act. Deborah Behr offered to work with sponsor                                                                       
to find one.                                                                                                                    
                                                                                                                                
Senator Dave Donley offered to withdraw his motion.                                                                             
                                                                                                                                
Co-Chair John Torgerson said they could go back to the                                                                          
original language from an earlier workdraft. Senator Dave                                                                       
Donley said multiple hearings were held in the Senate                                                                           
Judiciary Committee and this was an ongoing discussion. He                                                                      
welcomed assistance in setting standards but thought there                                                                      
ought to be standards.                                                                                                          
                                                                                                                                
Deborah Behr restated her offer of assistance in detail.                                                                        
                                                                                                                                
Co-Chair John Torgerson told Deborah Behr this language was                                                                     
included in another version. Senator Dave Donley was                                                                            
willing to give them one more chance to come up with                                                                            
something smoother. He said he could address the matter on                                                                      
the Senate floor.                                                                                                               
                                                                                                                                
Senator Dave Donley withdrew his motion to adopt Amendment                                                                      
                                                                                                                                
Co-Chair John Torgerson turned the discussion to the fiscal                                                                     
notes. He noted that some of the department's fiscal notes                                                                      
went up. He commented the committee could take several                                                                          
approaches to reduce the amounts. The departments could                                                                         
testify to the reason the funding was needed.                                                                                   
                                                                                                                                
Deborah Behr mentioned that the fiscal notes were drafted                                                                       
against the "V" version. The fiscal notes to the "W"                                                                            
version would go down. Co-Chair John Torgerson noted that                                                                       
the CS Version "V" was substantially less restrictive than                                                                      
the versions before.                                                                                                            
                                                                                                                                
BOB LOEFFLER, Director, Division of Mining, Department of                                                                       
Natural Resources testified via teleconference from                                                                             
Anchorage.  He addressed the division's concerns with the                                                                       
cost benefit analysis requirement and its potential affects                                                                     
to the mining industry. He felt the cost benefit analysis                                                                       
might have the unintended consequence providing a                                                                               
significant legal handle that could unavoidably delay a                                                                         
number of important mining projects.                                                                                            
                                                                                                                                
Senator Dave Donley interrupted asking if the director was                                                                      
familiar with page 3 lines 12-14 of the bill. Bob Loeffler                                                                      
believed it said a regulation may not be voided but it                                                                          
didn't address temporary restraining orders or other court                                                                      
actions to remand for further analysis that would delay a                                                                       
project.                                                                                                                        
                                                                                                                                
Senator Dave Donley noted there was another section on page                                                                     
2 lines 10-12 that could address the concerns regarding                                                                         
restraining orders.  He offered the committee could                                                                             
incorporate that provision.  Bob Loeffler replied that                                                                          
would alleviate his concerns.                                                                                                   
                                                                                                                                
Bob continued his testimony saying that because a number of                                                                     
mining projects required a specific regulation to                                                                               
Department of Environmental Conservation's water quality                                                                        
standards, a cost benefit analysis would have to be done                                                                        
before a mine could be approved. He gave examples of the                                                                        
Kensington Mine that required site-specific criteria and a                                                                      
stream reclassification for the Red Dog Mine. He speculated                                                                     
that a company that designed their project to maintain                                                                          
clean water would have to jump another hurdle before                                                                            
getting approval.  That would be to prove their total                                                                           
benefits were greater than the total costs.  He didn't know                                                                     
if that was the intention of the legislation, but it was                                                                        
how he interpreted it.                                                                                                          
                                                                                                                                
He asked how good did an economic analysis have to be in                                                                        
order to pass that hurdle. His answer was that it would                                                                         
have to be better than that of any well-funded opposition.                                                                      
For a large industrial mine, that could be substantial.                                                                         
                                                                                                                                
Co-Chair John Torgerson asked if the division intended to                                                                       
adopt new regulations every time a mine opened. Bob                                                                             
Loeffler did not, but noted that no but certain mines                                                                           
needed regulations for water quality reasons.                                                                                   
                                                                                                                                
Senator Dave Donley said the Senate Judiciary Committee had                                                                     
been given a memo issued by Governor Knowles directing                                                                          
state agencies to do a cost benefit analysis before                                                                             
adopting regulations. He asked how the division implemented                                                                     
that order. Bob Loeffler responded that the regulations                                                                         
were typically done by Department of Environmental                                                                              
Conservation.  He had not done a cost benefit analysis of                                                                       
the scope called for in the proposed bill. Senator Dave                                                                         
Donley queried, "So you didn't comply with the Governor's                                                                       
directive to all the members of the bureaucracy?" Bob                                                                           
Loeffler said that before his division wrote new                                                                                
regulations, it analyzed the cost and benefits, but in a                                                                        
general manner rather than in the detail called for if a                                                                        
major industrial facility effect a significant portion of                                                                       
the population.                                                                                                                 
                                                                                                                                
Senator Dave Donley moved for adoption of Amendment #10.                                                                        
This would copy the language from page 2 lines 9-12, "A                                                                         
person may not obtain a temporary restraining order.based                                                                       
on a failure to comply with this subsection" and insert on                                                                      
page 3 after line 14. Without objection it was adopted.                                                                         
                                                                                                                                
The discussion returned to the fiscal notes. Senator Dave                                                                       
Donley suggested the committee direct departments do new                                                                        
fiscal notes based on Version "W" and justify any increases                                                                     
                                                                                                                                
Senator Al Adams commented that with the addition of                                                                            
Section 4 the cost benefit analysis added costs to the                                                                          
departments. Co-Chair John Torgerson retorted that the cost                                                                     
benefit analysis was only required if the regulations went                                                                      
outside the scope of the enabling statute's fiscal note.                                                                        
Therein lay the policy call.                                                                                                    
                                                                                                                                
Senator Dave Donley stated that it was surprising to him                                                                        
that the Administration was opposed to the cost benefit                                                                         
analysis. He detailed the arguments in favor of the                                                                             
analysis.                                                                                                                       
                                                                                                                                
Senator Al Adams asked if the sponsor wanted to start the                                                                       
regulation process with the cost benefit analysis after a                                                                       
new law was passed or from ground zero. Senator Dave Donley                                                                     
clarified to limit the applicability to regulations adopted                                                                     
for new statutes.  He said that would be another                                                                                
possibility but it didn't seem that radical. He noted that                                                                      
the federal government already did it and it would be                                                                           
reasonable to require state government as well.                                                                                 
                                                                                                                                
Senator Randy Phillips requested the departments be given a                                                                     
time limit for submitting the new fiscal notes.  Co-Chair                                                                       
John Torgerson said his office would request them in a                                                                          
timely manner.                                                                                                                  
                                                                                                                                
Co-Chair John Torgerson ordered the bill held in committee.                                                                     

Document Name Date/Time Subjects