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ARIZONA STATE LEGISLATURE
Fiftieth Legislature – First Regular Session
SENATE NATURAL RESOURCES AND TRANSPORTATION AND
HOUSE OF REPRESENTATIVES ENVIRONMENT
COMMITTEE OF REFERENCE FOR THE SUNSET HEARING OF
WATER QUALITY APPEALS BOARD
Minutes of Interim Meeting
Monday, October 17, 2011
Senate Hearing Room 109 -- 11:00 a.m.
CoChairman Nelson called the meeting to order at 11:13 a.m. and attendance was noted by the secretary.
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Senator John Nelson, CoChairman |
Representative Amanda Reeve, CoChairman |
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Senator Jack Jackson Jr. |
Representative Lela Alston |
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Senator Don Shooter |
Representative Heather Carter |
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Representative Karen Fann |
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Senator Olivia Cajero Bedford |
Representative Eddie Ableser |
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Senator Gail Griffin |
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Opening Remarks
Sharon Langford, Senate Research Assistant Analyst, explained the sunset review process and the configuration of the Committee of Reference. In response to a question from Senator Shooter, Ms. Langford explained that the Water Quality Appeals Board was established in 1986 and hears appeals on decisions by the Arizona Department of Environmental Quality (ADEQ) to grant, deny, or modify individual water quality permits and aquifer protection.
Presentation by the Water Quality Appeals Board
Laurie Woodall, Chairman, Water Quality Appeals Board (Board), explained to the Members that the Water Quality Appeals Board has three members and was established to provide an independent and efficient forum to review appeals by regulated entities of orders issued by ADEQ. The Board’s decisions are final, subject to review only by the Maricopa County Superior Court.
Ms. Woodall explained that there are specific time frames to the appeal and the hearing and that the standard of review used by the Board is that it must affirm the ADEQ decision unless the decision was arbitrary, unreasonable, unlawful, or based on a technical judgment that was clearly invalid. She described the technical configuration of the Board, which is comprised of two geologists and an attorney.
CoChairman Reeve inquired about the efficiency of the Board’s review process and about sending the review to the Office of Administrative Hearings (OAH). Ms. Woodall replied that the time periods for sending a matter to OAH would be longer than if the Board were to hear the matter. She stated that once a decision is issued by ADEQ, the appellant has 40 days to appeal it to the Board, ADEQ must respond within 20 days after that and the hearing must be held no later than 60 days from the date that the appellant files a notice of appeal. The Board must issue its final decision not less than 15 days after the hearing is held. She added that the party may request a review or re-hearing, or can go directly to Superior Court.
CoChairman Reeve asked if there would be any reason to refer these decisions to OAH. Ms. Woodall replied that there are so few appeals and therefore not much controversy that the Board is capable of handling them. She added that OAH would not have the technical expertise to review these decisions in many cases; Senator Shooter stated his concurrence.
In response to a question from CoChairman Reeve, Ms. Woodall explained that Board members cannot derive income from the water industry, so there would be no reason for Board members to recuse themselves from a review.
Senator Shooter asked the compensation of the Board members. Ms. Woodall replied that compensation is $30 per day. Discussion ensued on the composition, background and competency of the Board members, which are enumerated in statute. CoChairman Nelson added that Senate confirmation is required for the Board members.
Representative Fann asked if the $30 per day is charged only for working days; Ms. Woodall answered in the affirmative.
Representative Fann asked about the annual cost or budget for the Board. Ms. Woodall replied that the annual cost, provided by the Department of Administration, is approximately $500 per year.
Representative Fann asked for an example of the type of case that would be heard by the Board, and also how many cases are seen per year. Ms. Woodall described an example dealing with aquifer protection permits, which are of great concern to ADEQ; the Board can make a technical judgment when determinations are subject to interpretation. Ms. Woodall added that the Board sees perhaps five cases per year.
Representative Fann asked about the resolutions of the appeals. Ms. Woodall replied that most occurrences were resolved with the appellant not being granted relief: some appeals were negotiated between the parties, some were withdrawn, some were denied.
CoChairman Nelson related his personal experience on an Appeals Board; he stated that good people on a Board result in good decisions.
Mike Fulton, Director, Water Quality Division, Arizona Department of Environmental Quality, stated that the Board, with its technical expertise, is better suited than OAH to rule on technical issues. He added that other permitting issues could go to OAH or be left to the ADEQ director.
In response to a question from CoChairman Nelson, Mr. Fulton stated that there is not an appeals board for any other permitting, such as air or waste; the ADEQ director makes decisions for those programs. He stated that ADEQ would prefer to do the appeal review, but with the Board in place and competently staffed, Mr. Fulton stated that it is wise to leave the process as it is.
CoChairman Nelson stated his concern that there are no comments from Central Arizona Groundwater Replenishment District (CAGRD).
Discussion ensued about why decisions go to OAH and if that is an efficient or streamlined process. Mr. Fulton explained that appeals are typically worked out prior to hearings and that the Board is efficient as long as the appeal doesn’t go to OAH.
Public Testimony
There was no public testimony.
Discussion
CoChairman Reeve expressed concern about the ten-year sunset interval. CoChairman Nelson replied that the Auditor General must audit prior to a sunset review, so reducing the review time requires more staff time and with budget cuts the Auditor General cannot keep up with the workload. CoChairman Nelson stated that the ten-year audit interval is preferable and stressed that the Legislature can call for a sunset review at any time.
Senator Jackson asked about the Auditor General’s report. CoChairman Nelson replied that it will be in the forms of a full report and a summary report.
Representative Carter asked about the first review of this Board and the history of continuation reviews. Ms. Langford replied that the Board was established in 1986 and had its first continuation in 2001 by a Committee of Reference, without an audit, for ten years. Representative Carter expressed concern that twenty years have gone by without an audit, and a ten-year continuance now would extend that to thirty years. Discussion ensued.
Representative Alston stated that she is comfortable with a ten-year interval without an audit because of the good performance of the Board.
Senator Shooter stated that the
Board’s performance for only $500 per year is money well spent. Representative
Fann stated her agreement, as long as the processes are carefully reviewed.
CoChairman Nelson stated that, in an effort to reduce the cost of government to
the public, an audit of this size is not a good use of resources.
Recommendations by the Committee of Reference
CoChairman Reeve moved that the Committee of Reference recommend to the full Legislature that the Water Quality Appeals Board be continued for ten years. The motion carried by a voice vote.
Without objection, the meeting adjourned at 12:10 p.m.
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Jane Dooley, Committee Secretary
November 10, 2011
(Original minutes, attachments and audio on file in the Office of the Chief Clerk; video archives available at http://www.azleg.gov)
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COR - SENATE NRT AND HOUSE ENV
October 17, 2011
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