Administrative
Procedures Act / Regulatory Reform
Position: NCCBI supports an
Administrative Procedures Act (APA) which clearly defines the process
for promulgating environmental regulations and provides for fair and
effective oversight by third parties, stakeholders and the General
Assembly, as well as providing for the promulgation of cost effective
rules. Specifically,
NCCBI supports:
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Use of Existing Rulemaking
Process: NCCBI believes that all parties should be held
accountable to the APA and should not deviate from its requirements. NCCBI will adhere to the APA
and work diligently to see that the APA is followed by other parties.
Specifically, NCCBI believes that the Department of Environment,
Health and Natural Resources (DENR) must be held accountable to the
APA and internal departmental documents referred to as “Policies,
Agreements, or Guidance” should not be considered valid for
enforcement if they are clearly regulatory in nature and have not been
through proper procedures for adoption of a regulation. If these
documents are to be enforceable under the law, each must be
promulgated under the requirements of the APA.
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Improvements in the
Rulemaking Process: NCCBI supports improvements in the rule
making process to assure that (1) all rules must be shown to be
necessary and cost effective, (2) controversial or expensive rules
should continue to be subject to oversight by the General Assembly,
(3) the Rules Review Commission’s (RRC) review of regulations should
be strengthened, (4) judicial review of rules should be reinstated,
and (5) the adoption of simple and/or noncontroversial rules should be
streamlined. NCCBI also supports improvement in
the oversight and review of administrative decisions by independent
third parties, such as administrative law judges (ALJs), having
adequate power and authority to apply meaningful review and oversight
to the decisions.
Explanation: In order to
have a fair and equitable rulemaking process, a clear APA is
necessary. This gives all stakeholders guidance as to their roles,
responsibilities and rights, as well as prescribing with some degree
of certainty the process for the general public, DENR, the
Environmental Management Commission (EMC) and the legislature.
Stakeholders, including businesses, industries and special interest
groups, as well as the EMC and the legislature, provide a system of
checks and balances. An appropriate APA assures a regulatory process
that considers a variety of aspects including the need for regulations
and the cost/benefit of the regulation.
Legislative oversight is an important element of the APA and
broadens the perspective of the rulemaking process.
Use of Existing Rulemaking
Process: The APA should be followed by all parties. Deviations
from and attempts to circumvent the APA jeopardize the system and the
rights of all stakeholders. DENR should not be allowed to impose
requirements that are regulatory in nature without following the
requirements of the APA which allow for public input.
Improvements in the
Rulemaking Process: NCCBI strongly believes in the maxim that
“he who governs least, governs best,” and that often,
administrative agencies have issued an excessive number of unnecessary
and unduly burdensome rules. However, NCCBI also recognizes that
narrow, specific, cost effective rules that are well-crafted and
subject to adequate oversight can provide guidance to the regulated
community in its efforts to comply with present-day comprehensive and
complicated statutory schemes, such as those found in the laws for the
protection of the environment, health and safety.
The promulgation and
review of administrative rules under the APA now allows for oversight
by the General Assembly, as well as enhanced review by the RRC.
However, the APA still fails to provide an overarching principle that
the State has the burden of demonstrating that every rule adopted is
needed and appropriate, drawn to be no broader than necessary, and
does so in the most cost-effective manner possible. These standards
should apply to all rules, in addition to the current requirements
that rules must be adopted using proper procedures, be based on
adequate statutory authority, and, provides clear guidance to the
regulated community.
NCCBI believes that,
before the adoption of any rule, its total monetary and other costs
should be quantified, and these costs should be compared to the
purported benefits that the supporter of the rule believes will accrue
from its adoption. It would be preferable that these measures, or at
least a comparison of these measures, be performed by some entity
other than the agency adopting the rules. In addition, judicial review
of these comparisons should be available beyond the RRC and the
General Assembly’s review.
The current system for
contested cases under the APA consists of a hearing before an
Administrative Law Judge (ALJ) that produces a record and a
recommended decision. The record and recommended decision are then
returned to the agency, board or commission, that made the original
decision. Statistics show that, where the ALJ recommends a position
contrary to that of the original agency, board or commission decision the agency, board or
commission rarely follows the different recommendation. These statistics support a
growing belief on the part of the regulated community, especially
individuals who may only be exposed to the process once, that the
whole hearing procedure is unjustified, because it is often composed
of a long hearing with many procedures, which produces a
recommendation that the agency ignores, anyway, particularly where the
decision is visible or controversial. This needs to be changed. At a minimum, the ALJ’s
findings of fact should be presumptively binding. Serious
consideration should also be given to making the ALJ’s decision
final, with appeal directly to court for judicial review.
If you have comments on any of the NCCBI positions
or other issues,
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Air Quality
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Brownfields Redevelopment
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Communications
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Endangered Species/Critical Habitats
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Environmental Protection Policy
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Environmental Justice
Executive Summary
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Pollution Prevention, Waste Reduction, And
Energy Management
Risk Management
Sustainable Development
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Science Education
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Water Quality Protection
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Wetlands Protection
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