Misc Reports

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SECRETARY KRANCER ADDRESSES PENNSYLVANIA RECYCLING INDUSTRIES CONGRESS
By Jason Gottesman, PLS
1-22-13

Secretary of the Department of Environmental Protection Michael Krancer this afternoon addressed the 2013 Pennsylvania Recycling Industries Congress, which was held in the State Capitol’s East Wing Rotunda.
Robert Bylone, President of the Recycling Markets Center, noted the goal of the congress is to grow the importance of recycling in the state’s economy where 3,800 businesses already participate in current recycling programs. He said the theme of the congress is “Serving the Recycling Spectrum” where recycled materials are used on the other end of the line.
Mark Pederson, President of the Pennsylvania Waste Industries Association, applauded the recent advances in technology allowing for “single stream” recycling which has broadened the appeal of recycling materials and allowed for current municipal recycling programs. He said it is the goal of his organization to ensure progress and the additional success of the recycling programs.

Sec. Krancer spoke on the need to celebrate the economic and environmental benefits recycling brings to Pennsylvania. He applauded the breadth by which there is participation in recycling programs and noted the speakers from the prior two organizations bring together the supply and demand side of the recycling.

He also took time to celebrate the Covered Device Recycling Act, which was passed in 2010 and will be effective in the coming days. He said the new law will disallow electronics from being put in landfills or incinerators, thereby protecting the environment from the heavy metals carried in these devices. He noted people owning these devices can contact their
municipality or the device’s manufacturer for additional recycling details.

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Please note: This information is provided as a service to PFSC by PA Legislative Services. The information may not be copied or posted on other message boards or web sites. Links may be provided to this site.


PENNSYLVANIA RESPONSIBLE CITIZENS RALLY AT CAPITOL
By Jason Gottesman, PLS
1-23-13

Pennsylvania Responsible Citizens, a pro-gun advocacy group, held a rally on the steps of the State Capitol this morning to advocate for gun rights in response to a Presidential executive order affecting gun owners and comments by state officials concerning possible action regarding gun owners.

Bob Sclar of Pennsylvania Responsible Citizens noted he is a medical professor and a firearms instructor and went on to reflect on what it means to protect the Constitution. He said the Constitution is protected for flag-burners and the ability for anti-war protestors to demonstrate at the funeral of soldiers while noting that gun owners are people that are seen every day and opined that the Second Amendment to the United States Constitution is not to just protect hunting, but acts as another essential check and balance on government built into the Constitution, something he called “the most fundamental check between the government and citizens.” He said Pennsylvania Responsible Citizens and similar group will stand firm to protect their rights using all legal and responsible means.

Rep. Jeff Pyle (R-Armstrong) said he is one of the legislators that wants to protect gun rights, but noted there is not a member of the General Assembly that does not mourn for those who suffered in the mass shooting in Newtown, Connecticut. Despite this, Rep. Pyle said, many believe that the solution to the problem does not include additional gun laws. He spoke with disfavor on President Barack Obama issuing an executive order on guns and said if the executive order restricts gun rights,
he will ask the State Attorney General to file a Tenth Amendment lawsuit since he said such executive action is tantamount to treason. Rep. Pyle added Article One, Section 21 of the Pennsylvania Constitution states the right of citizens to keep and bear arms “shall not be questioned” and said it is a “liberal myth” that guns kills people. He argued if that myth is true,
then ladders and cars kill people in greater numbers. Rep. Pyle concluded by noting there are people in Pennsylvania’s legislature that are willing to stand up for gun owners and defeat any measure restricting gun rights.

Sen. Tim Solobay (D-Washington) said it is “common sense” to defend the constitution and said the increase in violence can be attributed to a failing mental health system that has been dramatically reduced in Pennsylvania over the last several decades. He said the focus on violence reform should be here and on the prevalence of violent video games that send the wrong message about guns and not on gun ownership.

Rep. Matt Gabler (R-Elk) began his remarks by quoting Article 1, Section 21’s “shall not be questioned” language and said “those inside want to question” the ability of Pennsylvanians to own guns freely. He argued “when you outlaw guns, only the outlaws have guns.” He opined it is standing up for the victims of violent crimes by standing up for the right for people to own guns that they might protect themselves. He encouraged those in attendance to “keep up the fight.”

Rep. Daryl Metcalfe (R-Butler) told the protesters they are “showing liberal gun grabbers your rights are important.” He said he supports the Second Amendment and will defend it, but told Pennsylvania citizens they have stronger protection in the Commonwealth with the Constitution’s “shall not be questioned language.” Rep. Metcalfe said House Bill 357 has been introduced to protect gun rights by making it a felony for law enforcement to restrict gun ownership outside of the law
and requires the Attorney General to take action if the Federal government infringes upon Pennsylvanian’s rights to own firearms. He said it is time for patriots to stand up and get legislative protection for the constitutional right to own and use firearms.

Rep. Tommy Sankey (R-Clearfield) said he is a hunter and has a brother involved in fighting the War on Terror. He said the Second Amendment is not for deer, but to keep politicians in place and noted armed guards protect politicians and money, so people should be able to protect themselves via the same means. “If they want our guns,” he said, “let them try and get them.”

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CEASEFIRE PA HOLDS DAY OF ACTION AGAINST GUN VIOLENCE
By Jason Gottesman, PLS
1-23-13

CeaseFirePA, an anti-gun violence advocacy group, was joined in the Capitol’s East Wing Rotunda by other advocates and legislators to speak out against gun violence in Pennsylvania.

Shira Goodman, head of CeaseFirePA, said today is the beginning of a long process to demand change in Pennsylvania. She said the change will include legislative action to adopt safe policies for the protection of people against gun violence.

After an opening prayer, Goodman continued explaining that her organization and the people of Pennsylvania became more active after the shootings in Newtown, Connecticut, and said her organization is continuing to bring people together and educate them about gun violence and trying to defeat it. She said the advocacy will not end today, but those in attendance will see why it is important to have their voices heard. She said the process will be long and hard work but can be achieved if all interested parties work together. She then played a brief video kicking off the next anti-gun violence campaign, which
is also being launched online.

Philadelphia Managing Director and Deputy Mayor Richard Negrin spoke about his personal story as a victim of gun violence; his father was killed with a Mac-10 submachine gun in his presence when he was a child. He called the weapon that killed his father “a weapon of mass destruction” that has no legitimate use. He said this gun was subject to the assault weapons ban, but can now be found on the internet for purchase of less than $500 and can easily be made in to an automatic weapon.

“Today is the start of a national conversation,” he said, that has been spurred on by Newtown and the feeling of something is now different. He said individual gun tragedies happen every single day and their anguish is no less than his own or that suffered by those in Newtown. He closed saying “our country needs to use this tragedy, this anguish as a driving force to a better union, a more perfect union.”

Mary Beth Hacke, a CeaseFirePA Board member, said she is here today because her son Ryan was killed at the age of 14 months as a result of gun violence. She said she is here today to tell elected officials “I am tired of watching children die.”

She asked how many children have to be buried before the epidemic of gun violence is ended. She said it needs to be demanded elected officials do all they can to curb gun violence and let them know that doing nothing is not an option. “My baby’s voice was silenced,” she said, “but mine won’t be.” She said she wants elected officials to know that those seeking
less violence will not go away and will not stand for more acts of violence. “We’ve had enough,” she said.

Faye Dawson, founder of the Vincent Woods Foundation, noted her son was shot and killed as a result of gun violence after being caught in the crossfire of a gun fight broke. She asked elected officials “to please find a way to stop gun violence in our communities.”

Lisa Haber, a Philadelphia resident, noted her son was shot five years ago with an illegal gun and lived as a quadriplegic for four years before he died. She noted her son did not want what happened to him to happen to anyone else. She said her family will remain members of CeaseFirePA because nobody should be cut down by a gun for no reason. “We are not going away, we will be back,” she said.

Goodman announced a number of legislators in attendance including Representatives Matt Bradford (D-Montgomery), Steve Santarsiero (D-Bucks), Tim Briggs (D-Montgomery), James Roebuck (D-Philadelphia), Mark Cohen (D-Philadelphia), Ed Gainey (D-Allegheny), Mike Schlossberg (D-Lehigh), Jordan Harris (D-Philadelphia), Thaddeus Kirkland (D-Chester),
and Kevin Boyle (D-Philadelphia).

Rep. Dan Frankel (D-Allegheny) addressed attendees and said it has been well articulated that the Commonwealth needs to come together and solve the issue of gun violence. He said gun safety is an issue that can easily define this legislative session and said it is his hope that the incredible pain suffered by victims and families of victims of gun violence will result in something being done on a bicameral, bipartisan basis to get something done about gun violence. He said all have to come together to find commonsense solutions that balance individual liberties and safety. “With every right that we have come responsibilities,” Rep. Frankel argued. He noted a number of issues need to be explored including limiting clip size, conducting and reporting background checks, and allocating state funds towards the effort of reducing gun violence. “This is
a work in progress,” he said and noted the New York legislature set an example which can be duplicated in Pennsylvania. He said legislators are putting together the PA Safe Caucus, which will work to solve these issues with any available legislative means. “It is too important to stop now, we must work together,” he said.

Rep. Ron Waters (D-Philadelphia) noted the mayors in attendance have taken action in their own municipalities to increase protections from gun violence. He said the state government should not punish municipalities for doing this and asked when action is going to come from the General Assembly to stand up for these communities and the people that elected them to office. “We will continue to stand up for little girls like the one standing right here,” he said, adding that assault rifles should be taken off the market. He argued the government is not going after reasonable people, but just trying to protect the health and safety of the citizens.

Rep. Madeleine Dean (D-Montgomery) said all in attendance want to say one word: “enough.” She said an important part of this rally is showing that common sense solutions need to be put forward in a uniquely bipartisan way. She noted those that suffer from gun violence “are our children” and said “each child’s death diminishes us.” She said communities from across the country are hearing the funeral bells tolling calling elected officials in to action to bring in a new era of nonviolence. “Let’s not let technology and weaponry trump common sense and humanity,” she said.

Sen. Larry Farnese (D-Philadelphia) noted those telling stories today relive their horror each and every day. “If that doesn’t motivate you, I don’t know what can,” he said. Sen. Farnese also pointed out that for the first time in over a decade common sense legislation is being discussed and supported at the state and federal level. He argued that this is not just a city issue, but an issue that permeates through each and every fabric of everyone’s lives. He said assault weapons have no other purpose than to kill a lot of people. “I support common sense gun laws and I support them right now, not just for Philadelphia, not just for Pennsylvania, but for the United States of America.”

Sen. Daylin Leach (D-Montgomery) noted nobody wants to take people’s guns away and disarm the citizens. He said this is a lie told and perpetuated by organizations that thrive by stoking the fears of its members and said not every bill with the word “gun” in it infringes upon the Second Amendment. Sen. Leach also said the Second Amendment does not prohibit reasonable gun legislation, much like other parts of the Bill of Rights. “The Second Amendment has nothing to do with this discussion,” he said. He said he hopes this can lead to a reasonable discussion about how to protect the right to own weapons and protect people.

Harrisburg Mayor Linda Thompson said “it is a false hope to believe that when mayors band together, you are more powerful than us. You are not.” She called for state legislators to enact legislation to make Pennsylvania a national leader in gun safety. She argued it is time to stand up to the gun manufacturers and pass gun control legislation once and for all.

John Linder, Mayor of Chester, noted “America is a nation of rights” but said no one person’s rights should supersede the rest to where people get mowed down by automatic firearms. “In America, we can control anything we want to control if we do it together,” he said.

Carolyn Comitta, Mayor of West Chester, noted her borough council unanimously passed a resolution to support common sense gun laws at the state and the federal level. She discussed the competing interests of protecting citizens while defending the constitution, but noted they can work together with reasonable gun control laws.

Rick Lowe, Mayor of Swarthmore, said “we do not want another Virginia Tech in any of our towns and cities.”He said in 50 years time people will look back and say this is the time when common sense took over and stated lawmakers will soon be judged as to whether they support the end of gun violence, not gun manufacturers.

Vaughn Spencer, Mayor of Reading, said he is standing here “because we need help from the state and federal government.” He noted all mayors in attendance are from municipalities that have passed resolutions against gun violence in the face of threats of litigation, but said he is involved due to the high number of homicides in Reading due to illegal firearms. He said
mayors across the country have been fighting urban warfare for decades and argued “enough is enough.”

Mike Crossy, President of the Pennsylvania State Teachers Association, said his organization is here because its members are united because of the large numbers of students, teachers, and administrators killed in schools as a result of gun violence. “It is up to us to work together on common sense solutions to prevent another tragedy like Sandy Hook,” he said. “We can no longer sit back,” he said, until schools are places go to learn and teachers go to teach.

Sal Panto, Mayor of Easton, called for federal action and prosecutions to keep gun violators off the streets and further argued there should be universal background checks, the federal criminalization of straw purchases of firearms, and limits on clip size. He said the purpose of the coalition of mayors is not to stop people from legally owning guns, but to keep people from possessing illegal guns. He said something needs to be done about violent video games and the mental health system, where the Commonwealth closed state hospitals releasing the mentally ill on to the streets. He said it is the important to note the mass shootings have taken place in the suburbs, and not the cities and said gun violence is treated differently because “they fear the National Rifle Association.” He challenged the National Rifle Association to join the majority of their members that agree with common sense gun legislation.

Kim Bracey, Mayor of York, noted 200 mayors are part of the Mayors Against Illegal Guns in Pennsylvania. She said the coalition supports President Obama’s executive orders and said pressure should be put on elected officials so that more is done to end bloodshed in the communities they serve.

Four middle school children then spoke on the agenda for common sense gun legislation including background checks, mandatory reporting of lost or stolen firearms, closing the Florida loophole, and banning semi-automatic assault weapons and high capacity magazines.

Goodman noted Pennsylvania has submitted all mental health records to the national database.

Tim Stevens, Co-Convener of the Coalition Against Violence, said he encourages all those that believe in sensible gun legislation to vote in each and every election. He said he believes in the right to own guns, but noted the NRA is not the only group with votes. “Now is the time, now is the moment to change Pennsylvania. Now is the moment to change the nation,” he said. He encouraged supporters to become believers in their power in order to get something done and use their political will to become the will of Pennsylvania and the nation. He pointed to an Antonin Scalia quote saying the Second Amendment is not unlimited and said “Newtown should be the beginning of a new day for common sense gun legislation.”

A Rabbi spoke in favor of changing attitudes and a course of action beginning by noting the truth that Congress has denied the will of the people for more than 30 years. He called for an end to cowardice and legislation making a significant dent in the problem of illegal firearms. He called for those in attendance to take the moral offensive and let elected officials know that action must be taken. He said the task is to challenge the nation’s conscience to end gun violence.

Corin Shrively noted as a mother of three small children she was shaken by the Newtown shooting and that caused her to build a memorial of silhouettes in a field in recognition of the lives lost. She said she is heartbroken that the lives were lost at Sandy Hook due to gun violence and noted the message of her memorial is simple: “peace, love, and solidarity.” She called for sensible solutions to ending gun violence, something she said is owed to all children and the victims of the Newtown
shooting. “From this tragedy, we must ensure a safer nation,” she said.
Goodman ended by calling for action on sensible gun legislation and asked those in attendance to go talk to their elected officials.

Following the rally held by CeaseFirePA, Heeding God’s Call held an anti-gun violence prayer reflection and vigil.

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House Tourism and Recreational Development Committee
3/18/13, 11:00 a.m., Room 205 Ryan Office Building
By Matt Hess, PLS

The committee held a public hearing on HB 544. (Protects the landowner from liability if users cause problem.)

HB 544 Moul, Dan - (PN 600) Amends “An act encouraging landowners to make land and water areas available to the public for recreational purposes by limiting liability in connection therewith, and repealing certain acts,” to make editorial changes to the purpose and definitions sections and allows a court to award attorneys fees and direct legal costs to an owner, lessee, manager, holder of an easement or occupant of real property who is found not to be liable for the injury to a person or property pursuant to this Act.

Chairman Stern explained that the bill is similar to legislation that was authored last session and discussed the original intent of the Recreational Use of Land and Water Act (RULWA). “Pennsylvania enacted this law in 1966 and currently 49 states have a similar one,” he stated. “The law has been very successful at encouraging more people to open up private land for public access.”

Devin DeMario, Legislative Liaison, Fish and Boat Commission, spoke in favor of the legislation and cited a report from the Legislative Budget and Finance Committee which highlighted the need to change RULWA. “In its most recent triennial audit of our agency, the Legislative Budget and Finance Committee (LBFC) repeated a finding from a similar audit done in 2008,” she stated. “In each case, the LBFC acknowledged the shortcomings of RULWA and recommended that the General Assembly consider amending RULWA consistent with HB 544.” She added “we support HB 544 as a means to provide landowners further incentives to maintain those lands currently open to recreational fishing and boating and hopefully encourage additional landowners to allow public access to more miles of Pennsylvania’s waterways.”

Andrew Loza, Executive Director, Pennsylvania Land Trust Association, said the legislation is necessary to protect landowners and charitable organizations and explained that many landowners who donate conservation easements do not open the land up to public access because of liability concerns. “They are deeply afraid of liability and they want to hear from the Land Trust that if they do this they won’t get sued but we can’t deliver that to them,” he stated. “It shuts off opportunities to have generous private landowners from working with us to opening lands for the public.” He added “even when they do open land to the public their legal counsels often tell them ‘be careful, don’t improve this with benches, parking lots, the more you do that kind of stuff the more you run the risk of liability.’”

Ron Grutza, Regulatory Affairs Coordinator, Pennsylvania Association of Boroughs, also expressed support for RULWA and the proposed amendments to the act. “Pennsylvania’s local governments support the RULWA for three reasons,” he stated. “First, by enacting a statute such as the RULWA, Pennsylvania expands the areas of recreational use open to sportsman and recreationalists, thus reducing the costs for government to provide this need. Second, the act specifically covers leases for land to the state or political subdivisions, thereby not excluding them by virtue of the fee rule. Third, the Act has been used by local governments throughout the years as a defense from injury claims on recreational lands.”

Grutza emphasized that HB 544 would update the act to “further achieve the original intent of the act” and noted that “broadening and clarifying the definition of ‘land’ and allowing certain types of de minimus in-kind contributions will further expand the lands in Pennsylvania available for recreational use.”

Fredrick Brown, Advisor, Pennsylvania Off-Highway Vehicle Association, expressed support for the bill and addressed the issue of liability concerns. “There is nothing in this bill that prohibits injured parties from filing an action against a landowner,” he stated. “Concerns of liability and the costs associated with the defense of litigation have caused, and continue to cause, landowners to be reluctant to open their land. The amendments detailed in HB 544 are intended to reaffirm the original intent of the act and to further encourage landowners to make and keep land open and available for recreational use.”

Brown also discussed the “attorney fees” provision in the bill. “Opponents assert that the language providing for the reimbursement of attorney fees is ‘not constitutional because it infringes upon the Pennsylvania Supreme Court’s rulemaking by warding attorney’s fees and costs and that legislation makes awards of these fees and costs without providing the same corresponding award to those who are successful in overcoming the strict immunity,’” he stated. “A word search review of the LDP system reveals that there are scores of references related to ‘attorney fees’ in Pennsylvania statutes, the most notable example was in the passage and enactment of the Castle Doctrine.”

John Bell, Governmental Affairs Counsel, Pennsylvania Farm Bureau, also expressed support for the bill and explained that the legislation clarifies the intended scope of “malicious or willful” conduct for which a landowner would not be protected under the RULWA. “HB 544 would more clearly state the more extreme degree of conduct that the landowner must exude in order to be denied protection under the act,” he stated. “To be the type of’ willful’ or ‘malicious’ conduct for which the Act’s protection from liability would not apply, the bill would require that the landowner intentionally intended to cause harm or showed utter indifference or conscious disregard for the safety of others through his or her failure to warn or guard against the injury causing condition.”

Rep. Longietti inquired about the provision regarding attorney fees and asked if the injured party must pay for defense’s attorney fees if their claim is unsuccessful. Brown stated “yes, the way the bill is written that would be the case” but emphasized “the statute is built for the property owner to encourage them and protections are afforded to the property owner.”

Rep. Longietti explained that there are three levels of liability and asked why “reckless conduct” is excluded from the bill. Bell stated “if the land owner is actively doing something to harm the person coming on to the property we might not be talking about the Act at all but at least this bill focuses on failure to warn of a dangerous condition.” Rep. Longietti expressed concern about expanding the scope of RULWA and emphasized “liability law modifies conduct because now they can be held responsible.”

Turning back to attorney fees, Rep. Longietti discussed an incident his legislative district that involved RULWA. “There was a piece of land that was open to the public for use and people walked and hiked on it and people road motor cycle on it,” he stated. “Somebody took it upon themselves to string a cable about neck high across two trees and a young person was riding their motor bike and came across it and was killed. A lawsuit resulted from that and this Act was used as the defense. It was very significant defense because you could not prove that the landowner put up the cable and there was no responsibly for reckless conduct on the owners part. Now you have a provision in here that says you’re responsible for attorney fees if you lose.” Loza stated the revisions to the Act is a “matter of balancing public interest” and reiterated that RULWA was created to encourage private landowners to open up their land to the public. Bell noted “the Act only protects those landowners who allow for public recreation without charging.”

Mark Phenicie, Legislative Counsel, Pennsylvania Association for Justice, urged the committee to reject HB 544. “HB 544 is not necessary and represents a departure from even the most strict immunity statues, without any purported justification,” he stated. “We are not aware of any verdicts or large settlements against the landowner of an unimproved or improved land under the current law, except one case in the Allentown area several years back, which was ultimately dismissed without verdict.”

Phenicie took issue with a number of provisions in the bill and said the legislation protects instances of “abhorrent behavior” such as gross negligence or reckless conduct. “In these cases, a landowner may not have acted intentionally or criminally but certainly with a wanton and reckless indifference to the rights of others and still be immune,” he stated. “This bill does not adequately protect those injured as a result of recklessness, or what is known as gross negligence. In those types of instances a person could actually be liable for punitive damages, but under HB 544 these actions would be immune. Therefore, in a case where a child is injured or killed as a result of gross negligence or recklessness the wrongful landowner is immune.”
Rep. Heffley said bill “applies some commonsense to the law, people that are going on property have a responsibility to be responsible” and emphasize that the private land owners will still be liable if there is a intentional action to cause harm.” Phenicie stated “this entire purpose of the bill, by the lack of standard of care, attorney fees, and every other aspect of this, is to prevent people, whether or not they have a good case, to ever bring a lawsuit; no other area of the law that I know of protects the type of conduct that’s here.”

Rep. Moul asked how the legislation prevents someone from filing a lawsuit against a private landowner. Phenicie stated “the standard you have here is almost impossible to reach for a plaintiff; this bill makes successfully filing a lawsuit virtually impossible whether they were injured legitimately or not.” He added “this is essentially a total immunity bill.”

Rep. Moul said the bill is a “step forward to encouraging people to open their land for recreational purposes” and thanked the committee for holding a hearing on it.

Chairman Stern noted there are 19 organizations that support of the bill and thanked the testifiers and committee members for participating in the hearing.

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KEYSTONE PARTNERS CELEBRATE 20th ANNIVERSARY OF KEYSTONE FUND
3/18/13
By Kimberly Hess, PLS

Supporters of the Keystone Recreation, Park, and Conservation Fund gathered in the Capitol Rotunda this afternoon to cel¬ebrate the 20th anniversary of the fund, and to present the Keystone 20th anniversary awards, which recognized successful Keystone projects around the commonwealth. Additionally, speakers highlight the release of a new report on the economic impacts of the fund.

“Since 1993, grant investments through the Keystone program have worked to bolster our vision for the strength of our economy, the vibrancy of our communities, the health of our families and our quality of life in Pennsylvania,” Department of Conservation and Natural Resources Secretary Richard Allan stated in a release. “The legacy of the Keystone program is that it allows us to partner with communities so that they can expand and improve the wonderful assets that make the places we call home vital and attractive.”

Jessica Sargent, director of conservation economics for The Trust for Public Land, announced the release of the report, Pennsylvania’s Return on Investment in the Keystone, Recreation, Park, and Conservation Fund. She stated the report demonstrates that the fund is an important investment in Pennsylvania jobs and strong economy, noting that the fund has enabled the projection of more than 100,000 acres of land and water, which provide natural goods and services such as drinking water, flood control, and clean air. For every dollar invested returns $7 in natural goods and services, Sargent stated, which she called “a great return on investment.” Additionally, the fund supports thousands of jobs in a variety of sectors, ranging from construction to engineering to libraries.

“Some of the key economic benefits of land conservation through programs like Keystone come in the form of natural goods and services,” Sargent stated “Protected parks and open space remove air pollutants, protect and enhance water quality and supplies, provide fish and game habitat, produce food, manage stormwater, and provide flood control and other necessary functions.”

“For more than two decades, the Keystone Fund has been helping communities protect open space, develop community parks and recreation areas, support libraries, preserve historic sites, and protect and improve our state game, forest, and park lands,” said Robert Griffith, former executive director of the Pennsylvania Recreation & Park Society.

Griffith then presented the six awards for exemplary projects in six categories: library, recreation, trail, historic preservation, state park, and conservation; and assisted in cutting the celebratory cake.

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House State Government Committee
3/19/13, 9:00 a.m., Room 60 East Wing
By Jeff Cox, PLS

The committee conducted a public hearing on legislation changing the regulatory review process.

HB 211 Grove, Seth - (PN 215) Amends the Regulatory Review Act to require the provisions of the Act to apply to agencies promulgating regulations and to require agencies to undergo a public interest analysis of their regulations every five years. If it is determined a regulation is not in the public interest, the legislation provides considerations the agency must undertake in its revision of the regulation.

HB 549 Scavello, Mario - (PN 604) Amends the Regulatory Review Act to allow for the review, upon petition of the General Assembly or the commission, of regulations by the commission that have been in effect for at least two years.

HB 868 Moul, Dan - (PN 1011) Amends Regulatory Review Act further providing for definitions and detailing that if a standing committee of either legislative chamber disapproves of a regulation, an administrative agency may either withdraw the regulation or revise and resubmit the regulation to the standing committees and the Independent Regulatory Review Commission. If a regulation is disapproved a second time, the agency must withdraw the regulation and is disallowed from promulgating it. The legislation requires the approval of both legislative standing committees before a regulation may be promulgated.

Rep. Moul, prime sponsor of House Bill 868, told committee members, “The purpose of my bill is to ensure that the regulation that comes from any department or agency in Harrisburg is reviewed by those of us who are actually elected officials and approved by those who are actually elected officials in Harrisburg,” He explained that before any regulation could be implemented it would have to be approved by a simple majority vote in the appropriate standing committee in the House and in the Senate. Rep. Moul further explained if the regulation is not approved by one of the committees, the agency or department would have the option to redo the regulation and present it again.

Rep. Grove, prime sponsor of House Bill 211, explained his legislation is based on Executive Order 1996-1 signed by Gov. Ridge on February 6, 1996. He said the bill requires every agency to review its existing regulations every five years but allows the agency to exclude any regulation adopted in the past three years. According to Rep. Grove, if an agency finds a regulation to be not in the public interest, the agency would be required to provide recommended changes based on the criteria established in the legislation.

Republican research analyst Josiah Shelly provided members with a brief summary of House Bill 549. He explained that under the current Regulatory Review Act a member of the General Assembly or a committee of the House or Senate may request a review of an existing regulation that has been in effect for at least three years. Shelly said the bill would change the provision from three years to two years.

Shawn Good, Director of Government Affairs, Pennsylvania Chamber of Business & Industry, testified, “I would like to be clear that under the current regulatory review process, the Pennsylvania Chamber and its members have long-standing working relationships with the regulatory agencies and these relationships are of great benefit to our overall, broad-based membership.” He added, “There is always room for improvement, however, and we believe House Bills 211, 549, and 868 provide for such improvement.” Regarding House Bill 211, Good commented, “The Pennsylvania Chamber believes that the regular and ongoing review of existing regulations to determine their relevance and necessity, according to the criteria in Section 5.2, is necessary to ensure that such regulations are not duplicated elsewhere in the Pennsylvania Code and that they are, in fact still addressing the problem that they were intended to address when originally promulgated.” With regard to House Bill 868, Good argued the legislation “would provide greater assurance that a final-form regulation reflects the interests of all stakeholders involved in the regulatory review process, not just the regulatory agency’s, so that everyone involved in the process can agree to the contents of such a regulation or to whether a new regulation is even necessary.”

Rep. Sims noted that in his testimony Good had said a standing committee could not bar an agency from promulgating a final regulation if it is needed to ensure that state government is in compliance with a court order. He wanted to know the procedure for determining that. Good did not know what the procedure would be, noting that he had been asked “to testify about how the regulatory review process impacts our members.” He agreed to get back to the committee in writing with a response.

Rep. Moul wanted to know if Good saw any constitutional problems with his legislation. Good responded, “I am not an attorney and not an expert on the Regulatory Review Act but as a lay person I would say no.” He iterated his belief that the three bills improve the process. Good continued, “The process generally works good for the Chamber’s members but your bill would improve it.”

Rep. Grove asked how previous regulations affect business and economic growth. Good commented, “I don’t think I ever met a business person who has said that a regulation is good for economic development.” He said, “I am not here to say all regulations are bad. Certainly some are necessary to address the real problems that exist.” Good continued, “But the reality is every regulation that is promulgated by a regulatory agency has costs associated with it.” He added that his members have to hire new people to comply with the new regulations instead of hiring people to engage in research and development or business expansion. Good observed, “Every single regulation has a cost and the costs keep going up.”

Rep. Daley expressed her concern that reviewing regulations could be costly and reducing the review period from three years to two years could mean additional costs for government to comply. She also wanted to know whether regulatory changes on a more frequent basis would affect businesses. Good responded there would probably be additional cost for government but it would be worth the initial cost to ensure that regulations are still addressing the problem they were originally intended to address. He believes businesses would welcome the opportunity that an existing regulation might be modified to better address concerns or be repealed. Good also said, “Overall, if the regulation is not addressing a problem it should not exist.” Rep. Daley said she is concerned that the regular five year review under House Bill 211 and the shortening of the time for requests for review under House Bill 549 could make the regulatory process more costly and confusing. She said she would prefer to see a “strong review” at the beginning of the process. Good said within two to five years things change especially in many environmental regulations. He again described the regulatory review process as a “consensus building process.” Good argued that if all stakeholders agree a regulation should be repealed then it should be repealed.

Rep. Saccone offered a scenario where an environmental regulation has been enacted and two or three years later a business finds the science has changed. He wanted to know if the business would go to its legislator or to the regulatory agency. Good explained the Chamber would go to the Department of Environmental Protection (DEP) while at the same time talk with members of the legislature. Rep. Saccone wanted to know if these types of regulations are being identified now. Good said the Chamber has not done so but added it is something they need to work on.

Dr. Patrick McLaughlin, Senior Research Fellow, Mercatus Center, said that it is his understanding that the goals of the three bills are requiring more review of existing regulations and creating more oversight for the creation of new regulations. He discussed what relevant information is needed when reviewing existing regulations or analyzing the effects of new regulations. McLaughlin said “there are relatively simple steps that could be followed to ensure that at least some useful information is considered in the regulatory decision-making process.” He continued, “A simple, two-step process requiring analysts to clearly identify the problem that a regulation would attempt to fix and to evaluate alternative approaches to doing so could go a long way toward crafting an environment that fosters competiveness and economic efficiency without sacrificing the outcomes that regulations are intended to achieve.”

Pointing out McLaughlin’s testimony included a chart indicating the number of federal regulations continued to grow during the period of 1997 through 2010 through multiple presidential administrations; Rep. O’Brien wanted to know what has caused this rise in the number of regulations. McLaughlin responded that the regulatory agencies themselves at the federal level have every incentive to continue to produce new regulations and as they do that their budgets get expanded, gain more staff and more power. He added that is probably true at the state level as well. McLaughlin pointed out to the committee members that he wanted to create a similar chart indicating the number of regulations promulgated in Pennsylvania but it was “impossible to chart Pennsylvania regulations digitally.”

Rep. Sims asked if any Pennsylvania regulations were promulgated by somebody who may have had a profit motive to do it. McLaughlin responded, “I am afraid I am not an expert on Pennsylvania regulations.” He explained that at the federal level he does not believe fraud is deliberately committed in the regulatory analyses that are performed. McLaughlin said he is suggesting that the reward to the economist or analyst only comes about when the regulation is promulgated. He added it is human nature to respond to incentives.

Rep. Knowles wanted to know if changes in the regulatory review process help ensure costs are monitored better. McLaughlin commented, “This is one of those ‘the devil is in the details’ sort of answers.” He said if changes in the review process result in changes in the incentives for those providing the information then yes.

Rep. Saccone wanted to know how to judge what constitutes “high quality analysis.” McLaughlin one way is to create an independent panel to review the regulations utilizing experts in cost/benefit analysis.

Rep. Sims asked McLaughlin what weight the committee should give to the funding sources of his organization. McLaughlin responded, “I don’t have an answer for that. I would hope you would judge my testimony based on the merit of its content in and of itself.”

Dr. Debra Borie-Holtz, Bluestein School of Planning & Public Policy, told lawmakers, “For a fairly industrialized and populated state, Pennsylvania has one of the lowest rulemaking volumes in the country.” Noting a colleague and she are working on a book on regulatory reform, Borie-Holtz explained they conducted interviews with stakeholders in Pennsylvania including the members and staff of the Independent Regulatory Review Commission (IRRC), individuals who have served in the Governor’s office in various administrations, a person in the Office of Attorney General, and individuals from regulatory agencies and interest groups. She commented, “When we conducted our interviews with stakeholders in Pennsylvania, we found a system with many redundancies.” Boise-Holtz commented, “Although in this case, that does not imply a negative effect, but rather it reflects the depth of the reviews being conducted under the current statutory and executive regime.” She noted that “in a separate analysis conducted in 2009 by the Institute for Policy Integrity at the New York School of Law, Pennsylvania received a ‘B-’ grade, which is actually one of its higher scores in grading the regulatory regimes in the state.”

Chairman Metcalfe wanted to know who Boise-Holtz and her colleagues interviewed in Pennsylvania. Boise-Holtz said they interviewed lobbyists, the regulated community, the IRRC members and staff, and others. She added that complaints about the current process were about its length but not the final results. Chairman Metcalfe commented that he receives many complaints from the regulated community. He disputed Boise-Holtz assertion that the legislation would shift power to the executive branch and argued it would shift it back to the General Assembly. Boise-Holtz pointed out that under the current regulatory review process the standings committees of the General Assembly have the opportunity to comment on proposed regulations and vote on final regulations. She said IRRC does not always hear from the committees. Boise-Holtz added that some current tools in the Regulatory Review Act are “under-utilized.”

Cara Sullivan, Director, Commerce, Insurance, & Economic Development Task Force, American Legislative Exchange Council (ALEC), testified, “The legislation being considered today would increase government accountability, provide for the careful consideration of proposed and existing rules and regulations, and help prevent unintended consequences such as the regressive nature of regulations targeted at small risks.” She argued, “Because laws change, technologies progress, and economic and political situations transform, there are many reasons a regulation may no longer be as efficient or equitable as when it was first adopted.” Sullivan went onto say, “To account for potential changes, agencies should regularly assess the efficacy and consequences of their rules and regulations.” She said, “Some argue that the costs to agencies of frequently reviewing regulations outweigh the benefits realized by cutting unnecessary, outdated or overly burdensome regulations. However, this ignores the direct costs to businesses and individuals as well as the opportunity costs of regulatory compliance.”

Rep. Sims wanted to know how much of the proposed legislation was written directly by ALEC. Sullivan responded, “None of it.” Rep. Sims then asked Sullivan if she could point to any Pennsylvania regulations that are unnecessary or unfair. Sullivan replied, “Unfortunately, I am not an expert on Pennsylvania regulations.” Chairman Metcalfe explained to Rep. Sims that the representatives from ALEC and the Mercatus Center are not from Pennsylvania and they were asked to testify about the general regulatory environment nationwide and not specifically about Pennsylvania regulations.

Chairman Cohen said it is his understanding that ALEC’s positions are determined by a board of legislators and a board of business leaders and that each board takes a vote. He wanted to know the votes of each board. Sullivan did not have a record of the board votes. She pointed out the board of legislators is the only board that votes on final approval of ALEC policies and the private enterprise council is only advisory. Chairman Cohen asked if ALEC has done a state by state analyses comparing Pennsylvania with other states. Sullivan said ALEC has looked at the states’ regulatory review processes. She added the states have many different review processes. Chairman Cohen wanted to know how many states have the procedure recommended by ALEC. Sullivan said it is hard to say because the bills being considered by the committee are quite different and do different things. Chairman Cohen expressed concern that the proposed regulatory review under House Bill 211 will increase the hourly costs for business every time a regulation came up. He wanted to know if ALEC has looked at the potential costs to business if the legislation is enacted. Sullivan responded, “There are obviously costs associated with regulatory review and the process involved in reviewing every regulation but there are also opportunities for great cost savings.” She said it is difficult to ascertain at this point what cost savings would result.

Rep. Saccone asked why businesses being affected by adverse regulations wouldn’t be a better driver of the review process instead of requiring a review every so many years. Sullivan said there should be opportunities for stakeholders, businesses and taxpayers to comment on the process and to comment on the regulations.

Rep. Sims asked if any members of ALEC will benefit from deregulation. Sullivan responded, “I can’t comment on whether they will or not, but that’s not what I am here to testify about.”

Robert Keaton, Legislative Director, NFIB/Pennsylvania, spoke about the impact of government regulations on small business owners. He noted his organization “has been a champion for regulatory reform and our sensible regulation campaign is specifically focused on writing smarter regulations that don’t burden small business.” Keaton told committee members, “The bills you’re addressing today are representative of what we feel will help to protect the public and grow jobs.” He argued, “It is critical for policymakers increase scrutiny of new and existing rules to ensure that each is necessary and that costs are minimized.” Keaton expressed support for House Bill 211, which he said “gives small business owners recourse when regulations become burdensome by simplifying compliance, establishing performance standards, and making the reporting standards and schedules less stringent.”

Chairman Cohen asked if NFIB supports House Bill 549 and House Bill 868. Keaton explained his members reviewed all three bills but he only received comment on House Bill 211. Noting Keaton’s testimony indicated a typical NFIB member reports gross sales of $350,000, Chairman Cohen asked if there are members that make considerably more than that. Keaton said NFIB has larger members “but 60 percent are the small guy.” Chairman Cohen asserted that many of the surveys that use small business use a much higher threshold. Keaton responded that sometimes that is correct. Chairman Cohen wanted to know if Keaton could cite specific regulations the effect dry cleaning. Keaton said he could not talk specifically about dry cleaning, but his members in the development and construction business have complained about regulatory overlap and lack of consistency. He added that small business is looking for regulations that are creditable, predictable, and consistent.

Chairman Cohen asked Keaton to cite some specific regulations. Keaton suggested speaking with Rep. Sankey and the regulatory problems he has faced with his small business. Chairman Cohen asked if NFIB has considered the cost of the increased number of legislative session days that would be necessary if the legislation is enacted. Keaton said he has not talked to his members about that specific issue.

Rep. Saccone spoke about the problems a small business owner in his district has had in getting permission to add a pipe to his property in order to expand the parking lot for his restaurant.

Rep. Daley asked if there is more specific information on the regulations that are burdensome to small business. Keaton said he would provide it to Rep. Daley. She asked if small businesses are also being impacted by federal and local regulations. Keaton said small business owners are conscious of all regulations whether federal, state, or local. Rep. Daley commented that the bills being considered will become more burdensome for the agencies and increase costs.

Chairman Cohen commented that Pennsylvania issues 60 regulations per year and the number of regulations that would be considered under House Bill 211 will be far higher than 60 each year. Keaton said regulations are already on the books which may or may not have to be reviewed. Chairman Cohen asked about limiting the review process to those regulations producing one or more complaints statewide. Chairman Metcalfe commented that Rep. Grove’s bill asks the agencies to review their regulations every five years and not necessarily be taken before the IRRC. Chairman Cohen pointed out that legislators can already comment on regulations through the IRRC process. He then asked Keaton if the current process is adequate for new regulations. Keaton responded that the current review process is “highly vetted” but a review process is needed after a regulation is promulgated.

Rep. Saccone said he has concerns with a mandated review of all regulations and whether it will lead to increased costs and a larger bureaucracy. He added, “I am torn and I want to get this right.”

Chairman Metcalfe said the committee will have an informational meeting on the legislation at a later date where the committee members can debate the merits of the proposals.

The following groups submitted written testimony:
• Pennsylvania School Boards Association
• Community Legal Services of Philadelphia