Legislature(1999 - 2000)

03/31/1999 06:00 PM Senate FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
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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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