Improve and Amend Administrative Procedures
The Alaska Department of Environmental Conservation has a regulation amendment project underway that updates the regulation language dealing with informal reviews and adjudicatory hearings (appeals). These changes clarify the responsibilities of people who want to request a review of a department decision or want to participate in adjudicatory hearings, as well as clarifying the responsibilities of the department and the Office of Administrative Hearings. There are also conforming changes to a number of other regulations that reference 18 AAC 15 (Administrative Procedures).
The department’s goal is to ensure that public concerns are fully considered in department decisions and actions. If a person disagrees with a department decision, they can appeal that decision to a higher authority within the department. The department’s appeal process addresses the need to provide due process as outlined in the Alaska Constitution. Due process includes the right to a neutral and unbiased decision-maker that presides over proceedings that are fair to all parties. The department has a strong interest in being objective and fair to all parties and in hearing from all points of view before making a decision.
Questions and Answers
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- What are Informal Reviews?
- Informal reviews are conducted at the division director level and are intended to be a relatively quick, simple, and less strict way to appeal a staff decision.
- What are Adjudicatory Hearings?
- These appeals are conducted at the Commissioner’s Office level and involve formal steps of public notice, preparation and response to legal briefs, and potentially formal hearings before an administrative law judge. Requesters may also ask for a “stay” or hold of the decision or permit until the appeal has been decided.
- What is the Commissioner’s role when a request for adjudicatory hearing is filed?
- The Commissioner’s role is to determine:
- Does the requester have legal standing to file an appeal?
- Did the requester meet the criteria in the regulations for filing an appeal?
- Did the division follow the proper procedures to reach their decision?
- Does the division’s decision meet the required standards?
- If requested, should the decision be stayed during the appeal process?
- Grant the appeal
- Deny the appeal, or
- Remand (return) the decision back to the division to correct some flaw
The Commissioner’s role at this stage is limited to that of a “gatekeeper” to determine whether there is a genuine dispute over a material fact or a question of law. This determination only addresses whether the threshold standards in the regulations have been met, not whether the requester will successfully challenge the division’s decision. In other words, the Commissioner does not grant or deny an adjudicatory hearing request based on any apparent “soundness” of the division’s decision. It would be improper to pre-judge the outcome without having all the facts presented. The adjudicatory hearing process allows the facts to be presented and a decision made based on the facts and the applicable Alaska statutes and regulations. After a public notice of the request for hearing is issued, interested parties are provided with an opportunity to submit responses supporting their positions on the case. The Commissioner then reviews these responses and the department’s statutes and regulations in detail to determine the scope of the issues and if it would be proper to refer the matter to the Office of Administrative Hearings, based on the criteria noted above.
- What is the Office of Administrative Hearing’s role?
- The Office of Administrative Hearings (OAH) was created in 2004 to hear challenges to executive branch decisions. OAH is located in the Alaska Department of Administration, and their role is to provide fair, efficient, cost-effective hearings performed by administrative law judges. If an adjudicatory hearing is granted by the Commissioner, it will be referred to OAH and they will assign an administrative law judge to hear the arguments from both sides and prepare an informed decision for the Commissioner’s consideration.
- Why are the Administrative Procedures regulations being amended?
- These regulations are being amended in order to:
- eliminate conflicts with similar regulations under the Office of Administrative Hearings and harmonize the department’s regulations with established court standards
- clarify the requirements for parties who wish to appeal a department decision
- ensure that the requester’s due process is protected and that sufficient time is provided for all parties to address the issues in a clear and efficient manner
- allow for the use of email and the electronic sharing of documents
- Will these amendments make it more difficult to file an appeal?
- No. The purpose of these amendments is to make sure that DEC hears clearly from the public what their concerns are, so issues can be resolved before the department’s decision is finalized. The amendments clarify that the requester must raise an issue during the public comment period, so that DEC can review and possibly remedy the problem.
- Do these amendments change how an appeal will be handled?
- No. The amendments clarify that the gatekeeper function is a shared responsibility between the DEC Commissioner’s Office and the Office of Administrative Hearings (OAH). The amendments clarify the internal procedures that bring OAH into the process during the gatekeeper determination.
- Have the deadlines for filing an appeal been changed?
- Yes. The deadline for filing an informal review has been extended from 15 days to 20 days after the department issues a decision. We believe this change will benefit requesters and allow more time for them to read and understand complex permits or decisions. The deadline for filing an adjudicatory hearing has not changed.