March 19, 2026 · 12,371 words · 12 speakers · 143 segments
Representative Camacho. Here.
Senator Carson. Present. Senator Gonzalez. Excused.
Representative Joseph. Right here. Representative Luck. Excused.
Senator Roberts. Here. Representative Soper. Excused.
Senator Wiseman. Good morning.
Madam Vice Chair. Present. Mr. Chair. Here. All right, members. Hopefully we'll be able to get through our agenda in an hour today. We're going to go over a review of new rules. Specifically, we're going over rules of the Solid and Hazardous Waste Commission from the Department of Public Health and Environment. We've gotten a few memos on this and have a witness list. And first, we are going to hear from, I'm so sorry, I don't have your name on the list here. Thank you, Mr. Chair.
Jennifer Berman, Legislative Legal Services.
Okay. All right. We'll start with Jennifer Berman. Go ahead.
Thank you, Mr. Chair, members of the committee. Good morning. I am Jennifer Berman from the Office of Legislative Legal Services, and I'm here to present on an out-of-cycle rule issue regarding the rules of the Solid and Hazardous Waste Commission concerning solid waste sites and facilities, and to recommend the repeal of Rule 18.2.7 of those rules. For a bit of background, in 2022, the General Assembly enacted the producer responsibility program for statewide recycling act to improve the state's recycling rates by providing a sustainable funding mechanism by assessing dues against producers of packaging materials the act requires a nonprofit organization to develop and implement a program and to assess producer responsibility dues that produce participating producers pay annually to finance the program the act also creates an advisory board with 13 voting members appointed by the executive director of the department of public health and environment the advisory board includes local government environmental industry and recycling facility representatives i do want to thank the ag's office for correcting the record in my memo incorrectly indicated that the board includes producers but the board members who represent packaging material a packaging material supplier a manufacturer of recycled paper products, and a retailer must not be producers under the statute. As noted on page 2 of my memo, Section 2517-704 lists the responsibilities of the advisory board, which all listed responsibilities are described as advising, reviewing, consulting, or recommending. None of them include the responsibility to hold a hearing. Moreover, the list of responsibilities set forth in section 2517.704 purports to be an exhaustive list prefaced with the language the advisory board shall and lacking indications that the list can be added to such as with words like includes or catch all language at the end of the list indicating that the department the division or the commission could add to the list of the advisory board responsibilities Rule 18 of the commission rules concerns the means by which a producer may contest the factors used to determine the amount of dues owed by the producer. The rule authorizes the advisory board to conduct an evidentiary hearing about the factors, to consider evidence at the hearing and to make recommendations to the director of the Hazardous Materials and Waste Management Division. The rule further provides that the director must make their determination based only on the evidentiary hearing record developed by the advisory board. By authorizing the advisory board to conduct an evidentiary hearing on an adjudicatory matter, the Commission's Rule 18.2.7 exceeded the rulemaking authority because the The evidentiary hearing is not contemplated in statute and is not part of the statutory responsibilities afforded to the advisory board. Moreover the rule conflicts with section 244.105, subsection 3 of the state administrative procedure act which requires that a hearing be presided over by the agency, an administrative law judge or a hearing officer who is a member of the agency. The advisory board, which as its name suggests and as spelled out in section 2517-704, serves merely an advisory function and therefore is not an appropriate executive agency authorized to hear, consider, and weigh evidence at an adjudicatory hearing held pursuant to the APA. Therefore we recommend that rule 18.2.7 of the rules of the Solid and Hazardous Waste Commission be repealed because the rule exceeds the agency's rulemaking authority and conflicts with statute. Mr. Chair, if I may, I would like a few minutes to address some of the contentions raised in the AG's responsive memo. Yes, please go ahead. Wonderful. Thank you. The Attorney General's responsive memo cites to the broad rulemaking authority afforded commission under section 2517 7057 as authorizing rule 18.2.7 despite the deficiencies i've laid out even if the statute grants the commission broad will making authority that broad will making authority would not include the authority to grant an advisory board the power to oversee an evidentiary hearing which as discussed directly conflicts with section 24 4 105 subsection 3 of of the APA. An agency's broad rulemaking authority does not afford the agency the power to adopt rules that directly conflict with statute. Additionally, the AG's responsive memo focuses on the word necessary in the rulemaking authority granted to the commission, where in section 2517-7057, the General Assembly authorizes the commission to, quote, promulgate rules in accordance with Article 4 of Title 24, as may be necessary for the administration, end quote, of the Act. The Attorney General argues that because the rulemaking authority is broad and the rules concern producer dues, which are themselves contemplated in statute in Section 2517-709, then that renders the rule delegating the authority to hold an evidentiary hearing about the dues necessary. However, it is not clear why such delegation would be necessary, meaning inescapable, logically unavoidable, or compulsory. Even if the hearing itself could be viewed as necessary why would it be necessary that an advisory body that has no decision authority under the statutes be given the authority to preside over the hearing In their responsive memo, the Attorney General notes that the statute sets out the advisory board's duties, but not its powers, and therefore the list of responsibilities set forth in section 2517 704 is somehow not relevant to this rule issue. As for whether the statute sets out the advisory board's powers or duties, I'm not sure that is a distinction with a difference for purposes of this hearing. It is noteworthy that the attorney general's responsive memo does not cite to any portion of the statute that in fact grants the advisory board powers, and I am unaware of any such statute. Moreover, as an advisory board, it is not identified in statute as either a Type 1 or a Type 2 executive agency, varied types of agencies with executive powers under the Administrative Organization Act. Rather, it is clear from the statutory list of responsibilities given the advisory board, which again uses words such as advise, review, consult, and recommend, and not words such as find, decide, or determine that the advisory board was not statutorily granted the types of powers authorizing it to hold an evidentiary hearing or on an adjudicatory matter. If the Attorney General's contention is that where the statute is silent regarding a body's executive powers, the commission and that the commission itself may then grant those executive powers, that is precisely the kind of overly expansive rulemaking that the APA protects against. And finally, with respect to the reference to the word board in the definition of agency, and claiming that that reference gives the advisory board the authority to hold a hearing, it is telling that the definition of agency does not also include the word advisory. As noted in the Attorney General's responsive memo, one, quote, must accept the General Assembly's choice of language and not add or imply words that simply are not there. The word advisory should not be added to or implied in the definition of agency, because the advisory board serves a very different function from an executive board with regulatory authority, such as the Colorado Medical Board or the Banking Board. Therefore, the definition of agency under the APA should not be interpreted as extending to an advisory board. For all of these reasons, we would again recommend that the committee repeal Rule 18.2.7 of the Solid and Hazardous Waste Commission's rules. Thank you.
Thank you. Committee members, questions for Ms. Berman.
Rob Camacho. Thank you, Mr. Chair, and thank you, Ms. Berman, for the testimony. I think I've heard over the last few days some very hyperbolic terms about if this rule is repealed, that the entire program would be dismantled. In your analysis of this rule, does that argument hold water? If this rule goes away, does the entire program go away?
Ms. Perrin.
Thank you, Mr. Chair. Rep. Camacho, I'm not sure how much I can really speak to that. I can say that the statutes granting the authority of an EPR program are still in place. As I understand it, the plans that have been developed are still in place. All of the other rules of the commission are still in place, and what would be removed very narrowly is Rule 18 which authorizes the advisory board to hold a hearing regarding the amount of dues Rep Camacho Thank you Mr Chair So just from my own understanding repealing this rule really just addresses an adjudicatory function of the advisory board, but the remainder of the program essentially would remain intact. Is that right? Ms. Barber. That is correct. and let the record show we've been joined by Senators Gonzalez, Rep Luck and Rep Soper further questions for Ms. Furman
Rep Joseph can you thank you thank you for your presentation it was great and very informative but I'm still even as a lawyer it's still very fuzzy for me my question to you is then you would like to repeal this advisory commission because of my understanding that it grants it additional powers and because of that it needs to be repealed is that my understanding
thank you mr. chair rep joseph to be just to be clear for the record um repealing rule 18.2.7 would not repeal the advisory board in any way. The advisory board was created in statute. It would continue with its statutory functions of reviewing plans and making recommendations and all of the things that the General Assembly in 2022 authorized the advisory board to do. The only thing that would be repealed is the advisory board's ability to hold an evidentiary hearing based on the dues being contested. That limited portion of the rules is all that would be repealed. The advisory board would continue.
Rob Joseph. Thank you. So we passed a bill, right, that dictates this issue on the advisory being able to take on that particular issue. So why are we trying to – I still don't understand. Is this a constitutional issue? Is it a statutory issue? Why are we here having this conversation about repealing this particular mandate in a bill that we pass as a legislature? Thank you.
Thank you. Representative Joseph, this is a statutory issue. And in 2022, the General Assembly did not authorize the advisory board to hold any hearings. There's nothing in statute indicating such authority. And so the commission then adopts rules delegating to the advisory board the ability to hold an evidentiary hearing on an adjudicatory matter, which is clearly an executive function afforded to executive agencies of the principal departments, of which the advisory board is not. The advisory board serves merely an advisory function as indicated in the statute, specifically in 2517-7047 of the Colorado Revised Statutes. So this is a statutory issue in which, in reviewing the rules, we've determined that the Commission's rules, first of all, exceed its rulemaking authority by delegating such power to an advisory board. That statute did not delegate to the advisory board. And second of all, that having Having the advisory board preside over an evidentiary hearing and make findings and develop an evidentiary record, that conflicts with section 244.105 of the State Administrative Procedure Act. So that is why we present this rule issue to you. Further questions? Rep Black. Thank you, Mr. Chair, and good morning. Thank you for this. On page 4 of the memo that you provided to us, the second paragraph, it reads in part, the commission has rulemaking authority to, quote, promulgate rules in accordance with Article 4 of Title 24 as may be necessary for the administration of this Part 7 and the enforcement of this Part 7 pursuant to Section 25, 17, 7, 10. But that authority is not so broad as to create a hearing when none is contemplated by the statutory framework of the program. I'd like you to further explain that when I read enforcement, rulemaking authority as relates to enforcement, that triggers in me the thought of due process, and hearings are an integral part of that. And so I'm wondering how you reach the conclusion that no hearing is contemplated under this statutory framework.
Ms. Barman. Thank you. So Representative Luck, I think were we presented with rules in which the commission itself were presiding over the hearing? I've been wondering whether we would have brought this issue. It would be a lot closer. Even though that hearing was not contemplated in statute, to your point, you know, maybe that brings us closer to due process. maybe the idea of it being necessary for enforcement fits under this delegation of rulemaking authority. But to delegate that rulemaking – sorry, to delegate the ability to preside over the hearing and to make an evidentiary record to an advisory board that has no such authority under statute, And by virtue of being a board with an advisory capacity, it just does not seem that the General Assembly contemplated the possibility that such a board would be taking on such a clearly executive function. That is not contemplated in the statute. It is not contemplated by the rulemaking authority. And again, it conflicts with the APA.
Rep. Black. Thank you, Madam. Mr. Chair, sorry. Thank you, Mr. Chair. Thank you for that answer. So if I'm hearing you properly, this statement, I follow your logic with respect to the advisory board. What I am struggling to understand is the logic related to the commission having enough authority to include due process structures under its enforcement rulemaking power. because that speaks into a whole host of other rules and conversations that happen in this place. And so if I'm hearing you correctly, you not only have the problem with the advisory board from a very strict understanding, whether under the APA or under the delegated authority by statute specifically to that advisory board, but can you just help me understand a little bit better, not anything as relates to the advisory board, the Commission and why you think that even the Commission if they had designated this hearing power to themselves that that might be outside of their authority to do Ms Berman Thank you Mr Chair
Thank you, Representative Luck. For the sake of this hearing, would it help if I conceded that perhaps the commission could have itself established rules in creating the hearing and delegating to itself the authority to preside over the hearing. Those are not the facts we have before us. Under the facts we have before us, there is this issue of exceeding its authority by delegating that power to an advisory board. and of course that conflicts with the portion of the APA that I've discussed but in that hypothetical situation perhaps the commission would have been able to do that. Thank you.
Further questions? Reb Sober. Thank you Mr. Chair and thank you Ms. Berman. One thing I've been struggling with and looking at is back in 2022 when this law was passed, the General Assembly would have most certainly been aware of the APA and been aware of the fact that when you are standing up in administrative hearing process, that 24-4-105 was in place and that it's the agency, an administrative law judge, or an office of the administrative courts directed by them. At any time do we see where they would have, I guess, thought differently, thought that this somehow didn't apply to them at that point in time. In your search, was this ever contemplated back in 2022 that the APA somehow was also involved?
Ms. Berman. Thank you, Mr. Chair. Representative Soper, it's hard to answer that. I didn't go through all the legislative history from 2022, but what I can say is that section 24.4.105 of the Administrative Procedure Act is explicitly referenced in the act that created the EPR program. And I, oh, thankfully I have it in my memo right here. Under Section 2517.710.2b of that act, which grants the commission the authority to conduct hearings regarding alleged violations of the program, it states that they have the authority to conduct the hearings in accordance with Section 244.105. So the legislature clearly had the APA in mind, and specifically Section 24.4.105, regarding how the hearings proceed when it was crafting the legislation for this.
Rep. Sepp, are you good?
Senator Gonzalez. Thank you. Thank you, Mr. Chair.
Ms. Berman, thank you so much for the memo.
My question is when did you receive the request for this memo this barron thank you mr chair reps and gonzalez senator gonzalez i sorry
i'm not sure i can answer that under our out-of-cycle rule review process, any one of you can ask us to review a rule that is out-of-cycle. That request is confidential at the time that we perform that review and until the member asks that the issue be put on the Committee on Legal Services agenda. So I'm not sure I can answer that.
Senator Gonzalez. Thank you.
Representative Camacho, can you help us understand the timeline for requesting this rule review? Rep. Camacho. Thank you, Mr. Chair, and thank you, Representative Gonzalez. I was going to text you separately, but I'm happily to put it on the record. I requested this rule review in January when it came to my attention that this rule was in contravention to the law.
Senator Gonzalez. Can you help us understand how you came to become aware that this allegedly contravened law, in your opinion?
Happy to be at the witness table here. Thank you, Mr. Chair. Thank you, Senator Gonzalez. The producer who was responsible for implementing this was concerned that they were not on solid legal ground, and they would be spending a lot of the money required to implement this program, fighting lawsuits that were not necessary because this is clearly, in their view, was outside of the statute and outside of their authority.
Senator Gonzalez. And so, to be clear, you're saying that the organization itself, the PRO, was the organization who requested this, or who specifically?
Rob Camacho. Thank you, Mr. Chair. representatives from the PRO. So their team brought it to my attention.
Senator Gonzalez? Thank you.
Okay. Further questions for Ms. Berman? Rob Soper. Thank you, Mr. Chair. Just to follow up on that, a question about out-of-cycle rule reviews. If this had not been requested to have been done now, when would the first opportunity have occurred for the legislature to review the rule?
Ms. Berman. Thank you. Representative SOPR, under Section 244-103 of the APA, which sets forth rulemaking authority and also the legislature's oversight of rulemaking authority through our rule review process, rules are considered either in-cycle or out-of-cycle. In-cycle rules happened between November 1st of one year and October 31st of the next year. Right now, our in-cycle rules were all adopted November 1, 2024 through October 31, 2025. This rule was adopted in November of 2025, so just outside of that cycle. The rule review bill that you're all going to hear concerns those rules that are in cycle. All of those rules under Section 244 of the APA will expire unless continued by bill which is the annual rule review bill um so this rule is not part of that in cycle review it would be part of next interims in cycle review so we would have reviewed the rule this interim assuming we would have found the same issue we would have presented it to the committee that next fall. And then if you all agreed with our recommendation, it would be put in the 2027 annual rule review bill, which any rules that are not continued through that bill are then, they are discontinued as of May 15th of that year. So this rule would have been, under all of that hypothetical, would have been discontinued May 15, 2027.
Rep. Selber, we do have many other witnesses. I'll just make this quick. Thank you, Mr. Chair. So in understanding the timeline of what would happen, the rule would be in effect for an entire year, which if lawsuits are going to start circling around this particular rule and then let's say it's struck down a year later, all of a sudden we've created a lot of legal uncertainty. Would that be a fair statement?
Ms. Barman. Thank you, Mr. Chair. Representative Soper, I can agree to the first part of the statement that the rule would be in place for at least a year.
Okay. We're going to move on. We have a witness from the Department of Law. I'm going to call up Senior Assistant Attorney General Lucas Starks.
Mr. Starks. Good morning. Thank you, Mr. Chair and Madam Vice Chair. My name is Lucas Starks. I'm Senior Assistant Attorney General and represent the Colorado Solid and Hazardous Waste Commission. I appreciate the opportunity to present to this committee. We respect the work of the Office of Legislative Legal Services, but humbly disagree with their assessment of Rule 18.2.7. I will provide just a little bit of additional background on the extended producer responsibility program beyond the great outline of the program provided by Ms. Berman. and then I'll explain how the rule creating an advisory committee is within the commission's authority and how it is appropriate to involve the advisory board in that appeal. With respect to the EPR, the Extended Producer Responsibility Program, I'd point out that the general criteria for setting and adjusting producer dues are set out in a program plan that is approved by the Department of Public Health and Environment after being reviewed and assessed by the statutorily created advisory board. the trade organization the pro then uses the program plan to calculate and collect dues from individual producers i would note that for background oregon was the first state to create this type of epr program and the colorado legislature considered oregon's program when passing the state act after the colorado legislature passed the act a wholesaler group challenged oregon's program alleging it failed to offer due process over how dues are assessed and collected collected there to help defend colorado's program from similar claims and after extensive stakeholder engagement. The commission promulgated rule 18.2.7. The rule enhances due process by allowing producers to bring an administrative appeal of the pros assessment of dues. The rule causes the appeal to be decided by the department after the advisory board holds a hearing on the issues. The advisory board is not delegated or vested. with any authority to decide this appeal. Instead, the rule causes the advisory board to hold a hearing, after which it makes a recommendation to the department. In this rule, the advisory board is advising. To take advantage of the appeals process, a producer must first participate in mediation with and pay dues to the pro to help prevent frivolous appeals and program disruption. From a legal standpoint, the commission had statutory authority to create this appeal through regulation. We acknowledge the appeals process is not explicitly called for in the act. However, the Colorado Supreme Court has recognized that, quote, the General Assembly cannot delegate explicitly for every contingency. Therefore, it's well established that agencies possess implied and incidental powers filling the interstices between express powers to effectuate their mandates. Here, the unforeseen contingencies are lawsuits that claim Colorado's EPR law provides insufficient due process with respect to producer dues. The Commission's implied and inherent powers needed to fulfill its mandate come from Section 705 of the Act, where the legislature directs the Commission to promulgate rules as may be necessary for the administration of the Act and the enforcement of the Act. As outlined in the... And so I guess to go back to some conversation earlier of if this is a statutory or a constitutional issue, This is a statutory issue that is responding to a constitutional threat to the program. As outlined in the Department of Law's memo, a rule that creates an appeals process falls within the range of what courts have found are acceptable executive actions taken as may be necessary to implement legislative directives. We're also aware of other Colorado advisory boards that can hear administrative appeals without explicit statutory authority. In another part of the act, Section 709 specifically calls for department involvement and regulations to address the criteria through which the pro modifies dues. This is the exact issue subject to due process challenges. Therefore, an appeal back to the department on how those modification rules are being implemented helps to satisfy the legislative directive for the commission to promulgate rules necessary to account for due process contingencies. So an appeal adding due process is lawful. the rule 18.2.7 does not just empower the advisory board to hold a hearing it creates the entire appeals process without 18.2.7 there is no opportunity for a producer to seek an appeal of their dues to the department the advisory board's role is an intervening role The act created an advisory board comprised of various experts in the recycling field. The act requires this advisory board by statute to help develop, modify, and approve the plan that the program plan that sets up the dues assessment process in the first place. Yes, the act does not explicitly require the advisory board to participate in a dues hearing because the act itself does not require a dues hearing. But the act clearly authorizes the advisory board to make recommendations to the department about how the program plan establishes the assessment and collection of dues. Any regulatory appeal to the department concerning dues should involve recommendations from the advisory board in order to remain consistent with the legislation. This recommendations process could be potentially relatively informal, but the contingency being addressed concerns due process. The gold star approach for assuring that an administrative appeals provides due process IS TO CONDUCT THAT APPEAL ACCORDING TO SECTION 105 OF THE STATE ADMINISTRATIVE PROCEDURE ACT, OR STATE APA. THE ADVISORY BOARD, FORTUNATELY, FALLS WITHIN THE STATE APA DEFINITION OF AN AGENCY WHO CAN HOLD SUCH A HEARING BECAUSE IT IS A STATE BOARD THEREFORE BY CREATING AN APPEAL AND HAVING THE GROUP definition of an agency who can hold such a hearing because it is a state board Therefore by creating an appeal and having the group of experts that the legislature has decided should provide recommendations to the department about program plans and dues, having that advisory board make recommendations to the department through the Gold Star appeals process and APA 105 is warranted and lawful. So not only is Rule 18.2.7 legal and consistent with the Act, but it also protects Colorado from litigation risks. So thank you, and I would now be happy to answer committee questions.
Okay, questions for Mr. Stacks.
Rep. Camacho. Thank you, Mr. Chairman. Just briefly dialogue. I think that might be faster. You may dialogue. Thank you for your testimony. I don't think anyone's arguing that the policy of having an adjudicatory function is a necessary one. I think the issue before us is whether or not it's being done appropriately. Why didn't you just delegate this story to the commission itself?
Well, Mr. Sachs, you can just respond directly.
Thank you. Thank you, Mr. Chair. Thank you, Representative. The commission or the department can, just like the board, preside over an APA 105 hearing. But the legislation makes clear that this advisory board is supposed to be involved in making recommendations to the department concerning the program plan, which includes the eco-modulation of those dues. There are supposed to be extra regulations under Section 709 that focuses on that very issue, and it seemed necessary to have that advisory board to uphold the intent of the legislation and to give this advisory board a proper role in advising the department that it be the entity that hold the hearing. I also would add that as a practical matter, The advisory board are the experts. They're the ones who can more readily weed out frivolous claims. They're the ones who might focus on the correct questions to get at the issue much faster and better and more efficiently than the commissioner of the department, which, again, we want to minimize disruption to the program through this appeals process, and the advisory board is the correct entity to do that.
So I'm going to push back a little bit. My understanding is the advisory board, one of the requirements to be on there is not to be an attorney. And you're talking about making findings of facts, conclusions of law, determination of whether something is frivolous, which all have terms of legal significance, yet the advisory board has no attorneys on it. How do you square that? Why do you think that is the proper role when that could have been done at the commission and appeal could be held by the executive director?
Thank you, Representative. The commission also doesn't have attorneys on it. I think it actually happens to have an attorney on it right now, but it's not required to have attorneys. The Commission and the Advisory Board are represented by the Attorney General's office that serve as their counsel and can help facilitate and help either entity hold the hearing as necessary.
Further questions? Yep. Brad Black. Thank you, Mr. Chair. Two questions for right now. The first part is, are you aware of any other system in our state where this kind of relationship exists? and two, or set up, right? And two, if this rule were to be struck down, how long will it take you to make a new rule that just allows for the commission to exert its own authority under this act?
Mr. Sachs. In preparing over the past week for this hearing, we were able to find three other Colorado advisory boards that hear administrative appeals without explicit statutory authority. there a domestic violence program advisory committee that is an advisory committee that reviews appeals regarding restrictions placed on program funding There a foster youth successful transition to adult grant program advisory board that assists the Division of Child Welfare with administrative hearings And there's a Colorado Shines Assessment Advisory Board that hears appeals regarding an early childhood education program's ratings. As far as we can tell, I mean, the only basis for comparison is that as far as we can tell, there's not a statutory directive that these advisory boards hold, conduct administrative reviews or hearings. And it's, so I don't know how prevalent or common it is outside of the setting, but it seems like there are other examples of this happening.
Please remind me of your second question. I apologize. Brad Block. Thank you, Mr. Chair. How long would it take you to promulgate new rules that remove the advisory board from this particular task?
Mr. Stacks. The APA, the State Administrative Procedure Act, sets forth some notice and posting proposed regulations. I think it takes a minimum of safely probably 60 to 90 days to get a regulation noticed and up vetted. The more complicated or controversial the regulation, the more it's important to the commission to have a robust stakeholder process. There already was a very robust stakeholder process on these very issues. And so I think the notion of, I would presume that the notion of changing this regulation at this point would involve a similarly lengthy stakeholder process. And I don't know how long that would take.
Senator Roberts.
Okay. Rep. Joseph. Thank you, Mr. Chair. Thank you for the presentation. As you were talking, you mentioned that the advisory board's duties are to develop and modify programs. And my question to you, how closely related is the dues to the program's planning? Because as you were talking, and I read the memo as well that was sent to us, It notes, which you expressed earlier, that the act authorized the commission to promulgate rules to implement and administer the program. This statutory authority extends to rule deemed necessary by the commission to administer and enforce program requirement. And also I'm looking at the memo on the advisory board's mandate, basically, from the A through G, and I'm trying to understand how closely related are the dues to the program planning and modification. because I can see your perspective that, hey, the commission may be able to extend these rules to the advisory committee, but at the same time, you also mentioned in your statement earlier, as per statute, the General Assembly cannot delegate explicitly for every contingencies. And you mentioned also that it that give me a second here that the duties in themselves I had my notes it too early But my point is I trying to understand whether this is something that falls within the purview of the advisory committee based on incidental and implied powers right How closely related are the dues to the programming and planning?
Thank you. Mr. Stacks. Thank you, Mr. Chair. Representative, I appreciate the question. I may need to fully answer the question. I would probably need to consult with someone from the department who works on this. But the statute calls for, you know, it lists seven duties and three of those, it lists seven duties for the advisory board. Three of those relate directly to the proposed plan, and the proposed plan is what sets the dues, how they're assessed, certain schedules, and how they may be modified. And that is exactly where the due process issues lie. that this rule is attending to address with additional due process. The advisory board is supposed to consult at the beginning during the development of the plan. It is supposed to consult with the pro for any amendments to the plan, and it is supposed to make recommendations to the department with respect to approval or disapproval of the plan. To the extent an appeals process is necessary, the advisory board's legislative role to make recommendations to the department and to engage with the other stakeholders in this process makes it natural and appropriate that its duties to make those recommendations flow right into this appeals process as well. that it's appropriate to have the experts that the legislature wants convening and advising the department in these matters is also involved with the appeal.
Senator Weissman. Thank you. Rep. Joseph has just gotten to it, but I think we need to keep drilling in on the due process question and specifically the word necessary in 705 sub 7. It's a pretty unusual procedure that we're in here given active federal litigation in another jurisdiction about a program that's at least somewhat similar. I asked for a transcript of a hearing out there related to cross motions and was looking at it last night. And it seems the judge intends to move pretty quickly out there. You know, necessary is a word that gathers meaning from context, like probably any word. arguably if there weren't the pendency of this litigation, maybe such a rule here would not be necessary. But given what we have come to know, in my case relatively recently, in the case of the department, and I think you and others in the AGO responsible for legally supporting the department, I think the prospect of that necessity must have been known to you weeks or months ago. At any rate, here we are. the general assembly passed the underlying 1355 to achieve a policy and it went through by cameralism and presentment and it's now the law however one voted on it and that did include the authorization to make necessary rules maybe we didn't foresee this kind of challenge at the time but here it is um So my thinking about this is that the content of that necessity is probably enlarging, if unusually, and certainly in a way that I hope is not oft replicated around here for this kind of reason. I'm trying to sharpen this down to a question for you. I mean, I just I think going back to what Ms. Berman said to what is a necessary rule in the context, even if it's an unusual context, is a question that is doing a lot of work in our review of the appropriateness of this rule. So maybe let me just invite you to say more or again why you think the rule is necessary. And I believe I might have heard the representative from Denver even agree that due process is a necessary part of this kind of framework, even if we're also debating other questions. So I'll stop there.
Mr. Stacks. Thank you, Senator. Thank you, Mr. Chair, and thank you, Senator, for the question. Yes, this, in fact, as some committee members may know, others may not, the department was actually served with a complaint alleging due process violations of Colorado's plan just last week. So these are no longer potential contingencies. They are active contingencies. And this entity brings due process allegations with respect to the program. So I can't speak too much as to what is necessary and what, you know, with the contours of due process as it exists under the Act today. But what I can say is that it's very important. I guess it was prescient by some of my colleagues to recognize the contingencies in other states could be here, and they were proven correct. so there is necessity to address the due process afforded by the act
thank you this is a significantly different set of facts on the ground than I understood coming in this morning appreciate that if you're now in the position of advising a client in a litigation posture there's going to be a limit to what you can say here But I'd sure like it if somebody would send me that complaint to put on my reading stack. Thank you.
Rob Sober.
Thank you, Mr. Chair. And Mr. Stacks, going back to Section 710 that talks about violations and enforcement, when I drop down to 2B, the statute talks about producer responsibility organization, they may submit a written request for a hearing to the executive director by certified mail within 35 calendar days. And then it says the commission shall conduct the hearing in accordance with section 24.4.105. Is the commission the advisory board?
Mr. Stacks. Thank you, Mr. Chair. Representative, to answer your question, the commission is not the advisory board, no.
I'm sober. Thank you, Mr. Chair. And Mr Stacks you know in reading 1355 where it is in law how would one come to know that if they having to appeal that they have to go through an advisory board when the statute clearly says commission
Mr. Stacks. Thank you, Mr. Chair, and thank you for the question, Representative. There are several additional regulations that help implement what is written in the Act, and any producer and the pro are responsible for knowing both the Act and the regulations. So I think they would get notice of this process through there. Section 710 says that when the pro or a producer violate the act, the department basically takes enforcement actions by leveling civil penalties against the party through an administrative order. that entity receiving the order can then appeal that to the Commission and the Commission will assess that under APA an APA 105 administrative hearing again with pending litigation over the contours of due process afforded by that provision I would note that the court in Oregon that in the preliminary injunction hearing that court noted that the specter of waiting through until an enforcement action where penalties are applying to a producer who has a dispute with their dues create serious due process concerns. Rather than rely on an enforcement directive penalties and to streamline and to resolve these dues process more expeditiously, Rule 18.2.7, before someone is found to be in trouble, they can appeal to the department to find out what their dues should actually be.
Thank you, Mr. Chair. One last follow-up. Mr. Stack, so in what you just said, it's between regulation and statute is how the producer knows that they're first having to go before the administrative board, before going to the commission. So are they presumed to have to interpret the regulations as somehow trumping statute in terms of supplanting the word board with commission?
Mr. Stax. Thank you, Mr. Chair. Representative, I don't think that the producers will – I hope that the producers won't be confused by a statutory provision that says that once you've gotten in trouble and are hit with civil penalties by the department, then you can appeal having been in trouble with where all the action is right now in this arena. a lot of the action is, not all of it, is where is the assessment of dues. And the regulations themselves, I mean, these producers have to be looking at the regulations because in section 709, there has to be specific rulemaking regarding these regulations and how they're adjusted. And so a producer will have to be looking at the regulations to understand what those modulations look like. And right there, the next provision is that if you don't like how the pro modulated them, there's this appeals process you should take. Senator Gonzalez with the last question for this witness. Okay. Great.
Rob Camacho. Thank you, Mr. Chair. It's my understanding that the PRO has offered some solutions or some alternatives. Have those been considered by you?
Mr. Stacks. Thank you Mr Chair and thank you Representative In my understanding the department was emailed a PDF 48 hours ago that it had no part in creating and that purports to try and work through some of the conflicts that can arise in setting dues I would say that ultimately, though, due process is incumbent on the government to provide. And so while we think it's a good thing that the pro and producers and the department can set up situations, hopefully that that works and there are ways to avoid the appeals process any solution to due process needs to happen in state law to be effective.
Thank you Mr. Chair so for clarity the answer is you have not considered the solutions that were offered 48 hours ago. Mr. Stacks. I don't know thank you Mr.
Chair thank you representative I don't know what the what the department has has how it has reviewed this email in the last 48 hours. We knew that we had to be here today to explain the rule, and that's where we are. Okay. Thank you, Mr. Stacks. We have a list of witnesses signed up for questions only. Brian Loma, Randy Mormon, Samantha Sabrin should be online, and Jessica Roth should be online. Okay, committee members. Again, these witnesses are signed up for questions only. To the witnesses, if you just want to introduce yourself, any organizations you represent, and then we'll open up for questions. Mr. Lama. Thank you, Chair. My name is Brian Loma. I am the Hazardous Materials and Waste Diversion Advocate for Green Latinos Colorado. I also serve on the advisory board for EPR, extended producer responsibility in the environmental justice seat, but I am here not as a representative of the board today. Mr. Mormon. Thank you, Mr. Chair. My name is Randy Mormon. I'm the Director of Policy and Community Campaigns with EcoCycle. We are a nonprofit recycler now in our 50th year in the state, and we are one of the original proponents of House Bowl 22-1355 and are in strong support of this rule. Thank you. Okay, and then online, Ms. Sabrin. If you just want to introduce yourself. Okay, Jessica Roth. Okay, Maria Guayen. Can they hear us? They're all muted. Okay. Hi, my name is Samantha Saverin. I'm a staff attorney at Just Zero, a national nonprofit that advances. Oh, can you hear me? Yes, we can hear you. Continue. Jessica Roth. Good morning. I am Maria Giang, and I'm speaking for Jessica Roth. Okay. Could you state any organization you all represent? Thank you Okay I think there a delay Mr. Lama? Yes, Your Honor. Maria and Jessica are with the Global Alliance for Incinerator Alternatives, and Samantha is with Just Zero, an organization focused on eliminating single-use waste. Okay. Committee members, we have questions. Rep Soper. Can I proceed or can you hear me? Ms. Gwayne, we are having technical difficulties. There's a delay. Can you hear me now? Yeah. Rep Soper.
Thank you, Mr. Chair. My question will be for our two here in person. We're obviously considering whether the rule falls under statute or whether it's ultra-virus. The question I have for you is we've also heard about Oregon has a similar program. It's my understanding that Oregon's program is a state-run program, but Colorado's program is a producer-run program with state oversight because otherwise the fee would be in violation of the Taxpayer Bill of Rights. Is that distinction significant in your opinion?
Mr. Marmon? Yes, thank you, Mr. Chair and Representative Soper. I do not believe that distinction is significant here because what we're looking at nationally are legal challenges to producer responsibility programs under the U.S. Constitution. And what we have seen, and I will preface, I am not a lawyer, so I'm a minority here in the room. But I will say that our understanding is that the judge in Oregon ruled that binding arbitration to resolve contract disputes with producers is not constitutionally sufficient, which is why we need the appeals process in our rule. Rob Black.
Thank you, Mr. Chair. My question, actually I have a couple for Mr. Loma. Can I just dialogue? Yes. Thank you, Mr. Chair. So, Mr. Loma, when were you appointed to the advisory board?
Thank you. I think I've served about a year now. Post spring of 25? Yes, yes. And I actually was participating as a member of the public with the advisory board from the beginning.
Okay. And during those conversations of setting this up and your initial discussion about what your roles would be and what have you, was it ever raised to you that you could be filling a role of hearing disputes?
Absolutely it was, yes. Through the process of approving the plan, the advisory board has been very intentional about a variety of aspects and making recommendations to CDPHE. and we were very well aware of the issue that the assignment of dues was proprietary to the Circular Action Alliance, which also oversees the Oregon EPR and other states as they're being developed, and that their due setting process was proprietary. We don't know the fact It's not public information. And that a appeals process of that would come before the board. It was discussed how we would do that. We, you know, as we approved that recommendation to CDPG and, and that it would be a recommendation, not a ruling. So we would not have the final say. The executive director of the division would be the one who made the final determination. And that has happened previously. We can't hear you and the chat is disabled. on a factor called free allocation mass balance accounting, where the board reviewed the methodologies of math for considering what post-consumer content was. And it took us like months to determine. And we made a recommendation. We couldn't come into consensus, but we made a recommendation. Because the chat is disabled for participants. Executive director, make a ruling on that. so it's not unprecedented that the board sent things to the ED for a final determination.
Thank you for that. So if I'm understanding correctly, the advisory board doesn't actually have any real control over the rates that are set?
No, there is no control or knowledge on how they are set.
Thank you.
Okay, Senator Roberts.
Thank you, Mr. Chair. I don't know if there will be another opportunity to offer this, so I'm doing it now with proponents of the EPR program, and it's a bill I voted for. I want to see it succeed. It seems that regardless of what decision this committee makes this morning, that litigation is going to ensue. If we keep the rule in place, the pro organizations are going to continue to litigate the issue as to whether the rule is legally valid. if we repeal the rule, the EPR program is threatened because it doesn't have an appeals process. Why can't we just figure this out in a separate venue? We have 55-something days left in the legislative session. If we need to pass a bill, that's plenty of time. If the program needs to be, if new rulemaking needs to occur, it seems that regardless of the decision we make today, that litigation is going to ensue that threatens the success of the EPR program. So as advocates of the EPR program, is this your preferred option that this legal services committee determine the fate of the EPR program? Or maybe we could work this out through a more traditional process.
Mr. Mormon. Mr. Mormon. Thank you, Mr. Chair. And thank you, Senator Roberts, for the question. I would say that our preferred option right now, because the program is getting started and getting implemented, and we're at a very major crucial point in the program that we preserve the rule now so that we can get that program set up. And we are, you know, the producers are already paying dues, and we have not heard of significant challenges to that due process to this point. So I think it's important that we get that program going and get the services started as they are planned in June. So that would be our preference. Okay, further questions? If I may add to that. Mr. Lama. The understanding is that the current litigation, our brief knowledge of it because we haven't seen all of it, is that the organization that's suing is suing because they were not aware of this appeals process. And that is my understanding of what the current lawsuit is is the lack of knowledge that the appeals process exists Other questions Okay Seeing none we have one more witness Deborah Nelson. Okay, Ms. Nelson, same as the last panel, I'll just have you introduce yourself, any organization you represent, and then if committee members have questions. Thank you so much, Mr. Chairman, members of the committee. My name is Deborah Nelson. I serve as the EPR reporting manager for Circular Action Alliance Colorado. Circular Action Alliance Colorado is the producer responsibility organization charged with implementing the EPR act. We are a non-profit organization. That is a requirement. Happy to entertain any questions the members may have. Committee members, questions for Ms. Nelson. Replik.
Thank you, Mr. Chair. I'm curious your thoughts on the last question that Senator Roberts had asked.
Yes, may I have the question restated?
I want to make sure I hear it correctly in terms of it's about this venue versus another vehicle.
Senator Roberts.
Thank you, Mr. Chair. Yes, essentially, the decision we make today is certainly consequential, I agree, but it will result in litigation regardless of our decision. And for someone who wants the EPR program to succeed, wouldn't it be more beneficial for the program for this to be addressed in a different way? Ms. Nelson.
Thank you, Mr. Chairman. Thank you, Senator Roberts, for the question. I do agree completely that we have been told by the trade associations that they would be working to muster the support to sue the first five states that implement EPR. It doesn't matter which of those five states. It doesn't matter how well written those laws are or how well we are doing in our implementation. They plan to sue, and it is a very long list of claims. So we do know that that litigation risk is coming. It is not accurate to say that your holding up Rule 18.2.7 will reduce that litigation risk. It's actually the opinion of CAA Colorado that increases the litigation risk. In terms of whether or not we need to modify the act, I would actually argue that the EPR Act already provides you the solution. It has been touched upon here by various members of the committee. essentially what it says is that the State Department is the regulator responsible for both regulating the producer as well as regulating the producer responsibility organization. So they already have that authority. And as discussed here, if an entity is aggrieved by a determination, they get to have an administrative hearing already under the EPR Act that goes to the Solid and Hazardous Waste Commission. So, Representative Luck, this goes to your point. That already exists in our statute. If someone doesn't receive that relief through the Solid and Hazardous Waste Commission, they then have the opportunity for that judicial review. The process delineated in the EPR Act provides the notice. It provides the opportunity for administrative hearing and judicial review. I would like to provide an example, if I may, for how this would work. So for example, a producer receives our invoice. Our first invoices went out in January. They disagree with that amount. We identify it We ask them hey you haven paid You underpaid nonpayment whatever it may be They get an opportunity to correct with us If they do not correct with us they disagree with that invoice we then escalate that concern to CDPHE as the state regulator. It is for CDPHE, the ball is then in their court to review, to determine if the producer needs to be paying on that invoice. In the course of that review, they may find that it was actually Circular Action Alliance as the pro that made an error, in which case they would then be able to look at enforcing against the pro in order to ensure compliance with the act. Now, to the discussions that I've had here today, do we want to move faster? Do we not want it to maybe go through that escalation process, that opportunity to correct? There are absolutely things that we could do to allow that to be fast-tracked to get it in front of the state regulator. The issue that we have is with the process created in 18.2.7, you have no longer created that parity between the producer and the producer responsibility organization. They have the exact same process right now. What has happened with 18.2.7 is that they move into an advisory board. That advisory board doesn't have that statutory authority to hear that no member has been recruited to provide that function. The ecomodulation rules were promulgated much later in the process and in fact 18.2.7 was added at the very end of the stakeholder process for the ecomodulation rulemaking with minimal discussion that happened. Then they'll be able to challenge any of those determinations along with all of our current litigation risk that we're managing. So we now have our state regulator not implementing the EPR Act, violating the Administrative Procedure Act, and violating the Administrative Organization Act, and leading to arbitrary and capricious decision making. So to reduce that risk, we would say, please just use the EPR Act as written, and we don't need additional legislation at this time. Okay. Oh, Senator Weissman.
Thank you. Ma'am, I think I agree, based on what I've come to understand in the last week, that whatever happens here this morning, there's going to be litigation. I think we're talking more about outcomes, how certain claims go, than the fact of whether anybody chooses to file or not. At any rate, so you are speaking on behalf of CAA, the entity that was designated originally under 1355. Is that accurate?
Ms. Nelson. Thank you, Mr. Chair. Senator Weissman, that is correct. Thank you.
As a bit of context, is it your concern that CAA or is it the concern of like PROs in sister states that on top of various claims that might run against governments, that you yourself face possible financial exposure in litigation? Might somebody who has agreed by what's going on name you on top of naming the state? Is that part of what's going on here?
Thank you, Mr. Chair. Thank you, Senator Weissman. If I'm understanding the question, what I'm hearing is the likelihood of Circular Action Alliance basically getting named in the lawsuit themselves and needing to – yes. Okay great I tracking Thank you very much for confirming So yes I think it dependent upon each state regulator as to whether or not they bringing Circular Action Alliance to the table So in the first state that was challenged that did not occur As to the litigation that was recently filed, it actually doesn't directly concern the pro, so that nature of that litigation is not quite the way that it was perceived in terms of straight-up challenge to the program plan. There are some other moving parts that go there. And that said, they do absolutely list CAA as part of that. I'm sure that we'll be exploring ourselves and in partnership with the state regulator as to whether or not we would join. Okay. Okay, we have one final witness again, just for questions only. So I'm going to call you up. You can introduce yourself. And if members have questions, please, members, I think the House is getting started. We do need to move on to a vote, but I will call you up. Is it Mr. Cray? Okay, introduce yourself, any organization you represent. Good morning, members of the committee. My name is Wolf Cray. It's K-R-A-Y. I am the Materials Management Unit Leader with the Colorado Department of Public Health and Environment. Okay, committee members. Senator Gonzalez.
Thank you, Mr. Chair. Mr. Craig, can you just help us understand the allegations that are contained in the litigation that CDPHE received? I believe it was March the 12th.
Mr. Craig. Thank you, Mr. Chair. Thank you, Senator Gonzalez. I will do my best as a non-attorney. We're trying to still work through that claim brought forward. Some of the claims, there's a couple of different levels there, but one of the most notable ones is the lack of due process that was brought forward. We certainly have concerns because of the fact that we now have section 18.2.7 in the regulations. That creates due process for producers to appeal, whether they have concerns with the dues that are assessed by the PRO or an individual program plan. AND THAT IS VERY IMPORTANT BECAUSE THE PROCESS OF MOVING THROUGH WHAT IS LAID OUT THROUGH AN APPEAL WITH THE COMMISSION IS SPECIFIC TO A COMPLIANCE ORDER. If the department takes an enforcement action against a producer for not paying their dues, that is a completely different issue than looking at whether or not the producer is being charged or assessed the correct amount by the pro. So these are two very different issues that we're talking about here. One is related to enforcement from the department. The other is related to the producer participating in the program, paying their dues to the pro. Other questions?
Rep. Joseph? Thank you. Can you please talk a little bit more about the appeals process?
Absolutely. Mr. Craig. Thank you, Mr. Chair. Thank you for having me, Joseph. Yes, so the appeals process is laid out under the regulations so that a producer, if they have concerns specific for eco-modulation, AND LET'S BE CLEAR, THIS HAS NEVER BEEN DONE IN THE UNITED STATES BEFORE. IT IS A BRAND NEW PROCESS. THERE IS A LOT OF QUESTIONS. AND WHILE THE PRODUCER DUE IS SET IN THE PROGRAM PLAN, THEY ARE FACTORED AND ADJUSTED FOR INDIVIDUAL PRODUCERS BASED UPON THEIR VARIOUS ATTRIBUTES, SUCH AS RECYCLE CONTENT, VARIOUS OTHER CRITERIA. THERE'S EIGHT CRITERIA IN THE PLAN, AND THEN FOUR ADDITIONAL CRITERIA THAT WAS ESTABLISHED BY THE DEPARTMENT IN REGULATION. SO THOSE MUST BE APPLIED FOR THE PRODUCER DUE. and if the producers are unsure or uncomfortable if they're being assessed the correct due, they can bring an appeal to the department. That process goes first to the commission. I'm sorry, excuse me. It goes to the board and the board reviews that and the board simply makes a recommendation. Now these are technical experts, experts who have been appointed to understand the recycling industry and they make a recommendation. The department makes the ultimate decision. It's our division director as far as whether or not the appeal is accurate. Other questions? Okay, seeing none. Thank you for being here. Thank you, Mr. Chair. Okay, committee members, now we're going to move on to our first agenda item and taking action on it. Before I call this for a vote, you know, we're going to be voting on if we agree with the staff recommendation that the specified rule should be repealed. After the motion is made, you will vote yes if you agree with the staff recommendation. Any further discussion before we move on to the vote?
Senator Roberts. Thank you, Mr. Chair. I don't know if this is a proper motion, but if you would entertain it. I know we have another Committee on Legal Services meeting, at least one more during the legislative session. I don't think we need to make this decision today. I think the parties have started some good discussions and would encourage them to continue those and see if there's an alternative way for this to be resolved. So that is not a proper motion, but I will entertain it for discussion.
I will say Director Jaceko and I had conversations about how, in terms of the timeline, that it would fit within our ability to make this determination at a later hearing. We had considered taking this up for action in the April hearing and ultimately decided to call people in and have this conversation today.
We don't have to make this decision today.
I guess I'd be interested in how other committee members felt about that. Thank you, Mr. Chair. The way the conversation has gone at this point is that maybe are there people in the room that are relying on our decisions today on either side? I am sure that there are.
Senator Weissman. Thank you. Just in terms of process matter, the rule is valid now. it's being proposed to be pulled forward out of cycle as we heard earlier normally this question wouldn't come up for 12 months if we do nothing either in the form of declining to follow the staff recommendation or taking no action whatsoever the rule continues in force which frankly is the outcome that i want however we get there uh because see discussion unnecessary i think the rule should continue in force um obviously if one is a different opinion than i have, then you don't want to wait today. Then you want to put this question to a vote today, and you want to vote to follow the staff recommendation, which, again, I'll just jump ahead and say I don't think that we should do.
Senator, I agree with you. There other conversations to be had about this issue And personally I started to have some of those myself But that how I see the procedure of rule review intersecting with the question that you put Further discussion. Rep Camacho.
Thank you, Mr. Chair. It occurs to me that if we accept the staff's rule, it would actually accelerate those conversations because to Senator Weissman's point, that rule would no longer be enforced, and those conversations would have to happen.
Okay, further discussion. Rep Sober.
Thank you, Mr. Chair. I would agree with Representative Camacho that forcing the acceleration of the conversation, we also could draft and probably be granted late bill authority right away to be able to find that third way if need be.
okay um i am going to um this has taken up a lot of this committee's time we're taking up time on the floor initially i i do really appreciate your comments senator roberts i am inclined to keep us moving as originally intended and so i am going to entertain a motion and we'll take a vote on it.
Vice Chair Frizzell. Thank you, Mr. Chair. I move that the rules of the Solid and Hazardous Waste Commission Department of Public Health and Environment Concerning Solid Waste Sites and Facilities 6 CCR 1007-2 Part 1 Rule 18.2.7 specified in the recommendation on page 5 of the memorandum on such rule dated March 6, 2026 be repealed. Okay. Before we take the vote, if any members would
like to explain their vote, I am going to be a no on this because I agree with Senator Weissman on the terms of necessary, also the statute specifically contemplates enforcement. I also heard in addition to a lot of the conversation was concerned about litigation. but it seems like litigation could happen either way. I really appreciate the comments of Senator Roberts in terms of it seems like we might be able to solve at least the litigation risk in terms of this board having the ability to do what it does to solve that through express legislative grants of authority, which I think is something we should bring up a leadership, see if we can get done at the session. Anyone else? Rep. Camacho.
Thank you, Mr. Chair, and thank you for all the witnesses and the long testimony. I think I will be a yes on this because I really do believe in this program and I want it to succeed. But if our basis for allowing this to move forward is doing something outside the bounds of the law, then we need to fix that, and ignoring it is not the answer. So I will be a yes today, and hopefully that drives the parties to fixing the underlying legal issue, because this program is vitally important to the state. So that's where I'll be today.
Rep Sober.
Thank you, Mr. Chair. And I also concur with what was just said, that I want the program to succeed as well. I was in support back in 2022. to, but we shouldn't be looking at what's happening in Oregon or the potential of lawsuit which has already been filed. Our question before us today is whether or not a rule or regulation exceeded a statute and whether it ultra in a you know comparing the two memos that we have before us and looking at the statute itself i would have to conclude that it says commission it talks about a hearing it references back to the apa within the statute of 24 4 105 it's pretty clear that an advisory board was not even mentioned in the statute that's creating this process itself and then yet the rule does create that. And that I have a problem with. And that's where we can fix that as a legislature but we shouldn't be creating a legal fiction here just to save this part of the program. We have time and the session's still going. We can clearly fix this. So I'll be a yes.
Further closing comments to PrEP Joseph? Thank you Mr. Chair.
I will be a no today because I believe it is within the necessary power of the Commission to delegate to the advisory board the duty of to recommend whether to adjust the eco-modulated dues after holding an evidentiary hearing because based on my understanding the dues are an essential part of programming. and if the advisory board may modify and develop the plans, I believe they should be able to hold these hearings in order to be able to make robust recommendations to the commission. So I will be a no today. Thank you.
Any further closing comments? Red Black.
Thank you, Mr. Chair. And I too want to thank everybody who did all the work that was done and looking at this issue and coming here today. I will be in support of this particular motion to put this in and remove this rule. I am one of the loudest voices in this place to talk about the administrative state superseding its authority and not living within the bounds that is given. While I do believe the commission has the authority to set up a hearing process under its enforcement powers, I do not see that the General Assembly contemplated that as relates to the advisory board itself, especially if you look at sections C and D of 25 17 704 when you're talking about reviewing a plan proposal submitted and then consulting on amendments i would think that if there were challenges to that plan proposal or if there was an opportunity for additional insight that we would have wanted to give to them it would have fallen between those two items not talk about what the plan should be and then once it's determined THAT MAYBE THE PLAN DIDN'T WORK TO THEN LOOK AT AMENDMENTS. IT'S IN THAT INTERVENING SPACE THAT THEY WOULD HAVE BEEN GIVEN THE ABILITY TO ACTUALLY ADDRESS ANY SORT OF ISSUES THAT WERE RAISED. AND SINCE THAT'S NOT REALLY IN MY MIND CONTEMPLATED HERE BECAUSE IT WOULD REQUIRE AN AMENDMENT, NOT THIS HEARING PROCESS TO THE OVERARCHING PLAN, I DON'T THINK THAT WE HAVE GIVEN THEM AN AUTHORITY. AND AS TO REP SOPER'S POINT, IT IS EASY ENOUGH FOR US THIS YEAR TO to put forth a bill if that is desired for this advisory board to have that to explicitly give them authority to do it. I don't know about you, but I'm not particularly keen on the idea that the legislature makes guidelines for the administrative state to work within and then they take it upon themselves to work outside of those in accordance whatever they think best. They weren't elected for this role, we were. And so if we give them that clear direction and they do not follow it, then I think that that is a separation of powers issues that should be addressed by us. WE WANT THIS PROGRAM TO CONTINUE FINE SO BE IT PUT IT IN THERE PULL A BILL BUT DON ALLOW THEM TO SUPERSEDE WHAT WE OTHERWISE ASKED THEM TO DO SO I WILL BE IN SUPPORT You fine so be it put it in there pull a bill but don allow them to supersede what we otherwise asked them to do So I will be in support Okay further closing comments
All right, seeing none, Mr. Nearnack, please call the roll. Representative Camacho?
Yes.
Senator Carson? Yes.
Senator Gonzalez?
No. Representative Joseph?
No.
Representative Luck Yes Senator Roberts
No
Representative Soper Yes
Senator Wiseman
No Madam Vice Chair
Yes
Mr. Chair No Okay That fails on a vote of five to five. Okay. We'll now head to our next agenda item. I'm sorry, guys. I'm bringing House Judiciary energy to this. Okay. House members explaining your votes. We have Michael Doerr to talk about Senate Bill. Do this first. Michael Doerr is here to talk about Senate Bill 2683, which is the rule review bill. Mr. Doerr.
Thank you, Mr. Chair, members of the committee, Michael Doerr, the Office of Legislative Legal Services. Before you is Senate Bill 2683, which is the annual rule review bill. The rule review bill in this year will just extend all of the rules that were from last cycle because the committee did not vote to have any rules not extended. So the rule review bill is very simple this year.
Thank you, Mr. Chair. And Mr. Doerr, how does our previous action impact Senate Bill 83?
Since the motion failed, there would be no amendment to Senate Bill 83. There would have been had the motion passed, then there would have been an amendment to Senate Bill 83 to reflect that.
OK, members, further questions for Mr. Door. OK, and I will remind the committee we are the committee of reference for Senate Bill 83. And so our next order of business is referring it to the committee of the whole. oh we do have a witness Greer oh okay we appreciate that Jimmy Reed texted me said no thanks too we scared all the witnesses away okay Vice Chair Frizzell
thank you Mr. Chair I move Senate Bill 2683 to the Committee of the Whole with a favorable recommendation Okay, that's proper motion. Any discussion?
Okay, Mr. Nearnick, please call the roll. Representative Camacho? Yes.
Senator Carson?
Yes. Senator Gonzalez?
Excused.
Representative Joseph? Yes.
Representative Luck?
No. Senator Roberts? Aye.
Representative Souther.
Yes. Senator Wiseman?
Yes.
Madam Vice Chair?
Aye.
Mr. Chair? Mr. Nunez, can we count Senator Gonzalez? As an aye. Sorry. And I am also a yes. Okay, that motion is adopted, 9 to 1. We also have on the agenda a litigation update. Committee members, can we just agree that that can be an email? Okay, with that, the Legal Services Committee is adjourned.