ADMINISTRATIVE RULES REVIEW COMMITTEE Rules Digest -- April 1999 Scheduled for committee review - May 12, 1999 - Room #22 For further information, please contact Joe Royce, Legal Counsel, Administrative Rules Review Committee

HIGHLIGHTS IN THIS ISSUE:

ECONOMIC DEVELOPMENT DEPARTMENT Emergency shelter grants

ECONOMIC DEVELOPMENT DEPARTMENT "A taste of Iowa" logo

EDUCATION DEPARTMENT Accreditation standards

ENVIRONMENTAL QUALITY DIVISION Waste management

ENVIRONMENTAL PROTECTION DIVISION Water quality regulations

ENVIRONMENTAL PROTECTION DIVISION Aquifer storage

ENVIRONMENTAL PROTECTION DIVISION Composting facilities

ENVIRONMENTAL PROTECTION DIVISION Feedlot regulation

PROFESSIONAL LICENSURE DIVISION - Chiropractic Examiners Chiropractic definitions

DEPARTMENT OF PUBLIC HEALTH Maternal and child health program

DEPARTMENT OF WORKFORCE DEVELOPMENT Contested case procedures

DEPARTMENT OF WORKFORCE DEVELOPMENT Unemployment benefits

The department proposes a general update of the emergency shelter program. This is essentially a federal program that provides funding for labor, materials, tools, and other costs of improving buildings including repair directed toward an accumulation of deferred maintenance; replacement of principal fixtures and components of existing buildings; installation of security devices; and improvement through alterations or additions to, or enhancements of, existing buildings, including improvements to increase the efficient use of energy in buildings. The program also funds homeless prevention programs and some direct services to the homeless.

Eligible applicants under the grants program include city and county governments, and private nonprofit organizations. Each recipient must match the grant amount with an equal amount. In calculating the amount of matching funds, the following may be included: the value of any donated material or building, the value of any lease on a building, any salary paid to staff of the grantee or to any state recipient in carrying out the emergency shelter program; and the time and services contributed by volunteers at the rate of $5 per hour. Exemptions from this match are available for up to $100,000.

The department also proposes a new program funding the operation of homeless shelters. Eligible applicants under the grants program include city and county governments, and private nonprofit organizations. The program funds the rehabilitation of buildings used by service providers, operational expenses of service providers and homeless prevention programs. There is no matching requirement for this program.

The department implements a "Taste of Iowa" marketing program; the program is filed emergency to implement it as soon as possible. Applicants to use this logo include companies whose products are manufactured, processed or originates in Iowa and service-oriented firms including financial, wholesalers and distribution centers who deal with Iowa products. The applicant must:

• The company shall have a credible reputation as confirmed by the local chamber of commerce, the better business bureau, the regional coordinating council, or a local economic development group.
• The applicant's product or service shall be manufactured or processed or shall originate in Iowa.
• Any applicant whose license to use the logo was terminated is ineligible to reapply for five years from the date of termination.
• The company shall furnish a signed and completed application .

1998 Iowa Act Chapter 1176 provides that the department adopt rules by July 1, 1999, incorporating accountability for student achievement into the standards and accreditation process. The rules must provide for all of the following:

a. Requirements that all school districts and accredited nonpublic schools utilize a comprehensive school improvement plan that includes provides for school, parental, and community involvement in assessing educational needs, establishing local education standards and student achievement levels. This plan is defined as a design that describes how the school or school district will increase student learning, achievement, and performance; it may be more comprehensive.

b. A set of core academic indicators in mathematics and reading in grades four, eight, and eleven, a set of core academic indicators in science in grades eight and eleven, and another set of core indicators that includes, but is not limited to, graduation rate, post-secondary education, and successful employment in Iowa. Annually, the department shall report state data for each indicator in the condition of education report. These indicators are to provide information concerning the general status, quality or performance of the educational system.

c. A requirement that all school districts and accredited nonpublic schools annually report to the department and the local community the district-wide progress made in attaining student achievement goals.

Item 12 of the notice creates a new division: accountability for student achievement. As part of the comprehensive plan set out in this division, each school board must adopt "clear, rigorous and challenging content standards and benchmarks in reading, mathematics and science_" Benchmarks are defined as specific knowledge and skills anchored to content standards that a student needs to accomplish by a specific grade. In short, they are actual examples of what the student knows. Another part of the plan involves a district-wide assessments of student progress, using state indicators.

The rules also set out a comprehensive school improvement and accreditation process. Phase I includes monitoring by the department to determine whether the goals of the plan and the accreditation standards are being met. This includes an annual desk audit and a comprehensive site visit, once every five years.

A phase II process occurs when a district is not taking necessary actions to meet the accreditation standards, or when petitions have been signed by 20% of the district voters or 20% of the families having enrolled students. This monitoring process begins with the creation of an accreditation committee made up of department staff and various school personnel. The committee will make at least one site visit. The committee may make a "recommendation" to the director. The state board will ultimately determine the accreditation status of the local district.

The Division adopts a partial revision of its grant program funding landfill alternatives; only minor changes have been made to the original notice. These provisions have been in effect since 1988 and are unchanged since 1994. The rules eliminate the current preference for the funding of waste reduction and recycling programs, thus allowing each application to be considered on an individual basis. The changes also eliminate a listing of the specific types of projects that are eligible for funding. Instead the notice sets out three broad categories:

• Best practices--practices and programs that will move Iowa toward long-term pollution prevention, waste reduction and recycling sustainability;
• Education--practices and programs that are consistent with a coordinated statewide message on pollution prevention, waste reduction, and recycling to ensure ongoing support of these integrated solid waste management activities; and
• Market development--practices and programs that develop a demand for value-added recyclables sufficient to provide increased and stable commodity markets.

It should be noted that the required applicant match is being eliminated from the rules and instead placed in the application manual.

In a series of notices the division proposes amendments to chapters 567 IAC 40-43 chapter 55 and chapter 83. Chapter 40 includes rules of practice, including designation of forms, applicable to the public in the department's administration of the subject matter of this division. Chapter 41 contains the drinking water standards and specific monitoring requirements for the public water supply program. Chapter 42 contains the public notification, public education, consumer confidence reporting, and record-keeping requirements for the public water supply program. Chapter 43 contains specific design, construction, fee, operating, and operation permit requirements for the public water supply program. These amendments include minor changes; a provision for "point-of-use" devices at non-community supplies for contaminant level compliance; bottled water standard; certain engineering provisions; and a new viability assessment program. Chapter 83 relates to the certification of water testing laboratories; the filing contains various minor amendments.

Chapter 42, relating to public notification, public education, consumer confidence reporting, and record-keeping combines existing requirements and add a new "consumer confidence report", mandated by the federal government. Each notice required by this filing must provide a clear explanation of the violation, any potential adverse health effects, the population at risk, the steps that the public water system is taking to correct the violation, the necessity for seeking alternative water supplies, if any, and any preventive measures the consumer should take until the violation is corrected. The notice must be in plain English (and multi-lingual) and easily readable; it must include the telephone number of the owner, operator, or designee of the public water supply system. Most notices may be published in a local newspaper, but violation that pose an acute risk to public health must be forwarded to broadcast media within 72 hours.

Consumer confidence reports apply to all community public water supply systems and establish the minimum requirements for annual reports that community water systems must deliver to their customers. These reports must contain information on the quality of the water delivered by the systems and characterize the risks from exposure to contaminants in the drinking water in an accurate and understandable manner. The department may assign public notification requirements and assess administrative penalties to any community public water supply system which fails to fulfill the requirements of this rule.

Chapter 43 largely contains engineering-type changes, but it does propose a new "viability assessment program" applicable to all facilities. The purpose of the viability assessment program is to ensure the safety of drinking water supplies and ensure the viability of new public water supply systems. The viability assessment must address the areas of technical, financial, and managerial viability for a public water supply system and may include additional information as directed by the department. The viability of a system should be forecast for a 20-year period.

The department proposes a new permitting process allowing treated drinking water to be stored and recovered in underground aquifers. This program would allow water systems to obtain a permit for storage and withdrawal, upon a showing that the permitted use will not adversely affect other users. The permit is issued for twenty years, but can be revoked "to prevent or mitigate injury to other water users".

The division proposes to centralize its provisions relating to composting into one central provision. Composting is defined as "the controlled biological decomposition of organic matter under aerobic conditions resulting in a stable, innocuous final product." Composting facilities may include vermicomposting, turned windrows, aerated static piles, aerated in-vessel systems, or other methods approved by the department. A composting facility includes all related receiving, processing, production, curing, and storage areas.

Under Iowa law yard waste may not be buried in a sanitary landfill; thus yard waste is a common product at composting facilities. Some facilities also process solid waste, but these require a separate permit from the department. Facilities must meet the following conditions:

• The facility must be 500 feet from any existing habitable.
• Access must be restricted and the gate must be locked when an attendant is not on duty.
• Emergency access and fire lanes shall be maintained to provide access for fire fighting equipment.
• A permanent sign posted at the entrance must state:
  1. Name of operation,
  2. Operating hours,
  3. Name and telephone number of the responsible official,
  4. Materials which are accepted, and
  5. Name and telephone number of emergency contact person.
• Solid waste shall be unloaded at the composting facility only when an operator is on duty.
• Solid waste which cannot be composted or which is removed during processing shall be disposed of in accordance with Iowa law.
• Measures must be taken to prevent water from running onto the facility from adjacent land and to prevent water from running off the composting facility.
• Facilities shall be designed, constructed, and maintained so as to avoid or minimize ponding.
• The operating area must be surrounded with barriers to prevent litter from blowing.
• Solid waste materials shall be managed through the entire process in accordance with best management practices.
• Storage of finished compost is limited to 12 months.
• If finished compost is offered for sale as a soil conditioner or fertilizer, the compost must be registered the Iowa fertilizer law.
• The composting facility shall obtain an NPDES permit.

House File 2494 has established new requirements for livestock operations, necessitating a number of changes in the EPC's rules set out in chapter 65. In drafting these rules the division worked with the Animal Agriculture Consulting Organization {AACO}. The division and AACO did not fully agree on new language, thus the notice at times sets out alternative language. The 1998 legislation has made numerous changes in the permitting process:

• A county is prohibited from regulating feeding operations unless the regulation is expressly authorized by state law. County legislation adopted in violation of this section is void.
• Habitual violators may not receive permits and existing permits may be revoked as warranted. The restrictions apply for five years.
• Complaints may be filed either with the division or the county board of supervisors. This provision is implemented in rule 65.10. County representatives may accompany department investigators. The department has adopted the AACO recommendation that if a landowner chooses to deny access to investigators, the department must seek a search warrant from the district court, to be issued on a showing of probable cause.
• Greater separation distances are created for new construction.
• The commission is required to adopt rules relating to the construction, including expansion, or operation of feeding operations and structures. The requirements include minimum manure control, the issuance of permits, and departmental investigations, inspections, and testing. The division has adopted the staff recommendation on the issue of revocations and refusals to renew: the division will simply determine whether the operation constitutes a clear, present and impending danger to the public.
• The county board of supervisors is entitled to comment on any permit application and may contest the division decision. It should be noted this action is not a contested case, either under the statute or the rules_that determination is left to the EPC. This means that the EPC does not have to support its decision by evidence "on the record"; nor is there any right to an unbiased decision-maker.
• The division is required to approve all manure management plans prior to implementation.
• The division is required to adopt requirements for manure applicator certification, including educational program requirements. These new requirements appear in 65.19. An examination must be passed and a $50 certification fee paid, which will be good for three years. Farmers and their employees are generally exempted from this requirement.
• The division is required to adopt rules establishing certification standards for the handling, application, and storage of manure, the potential effects of manure upon surface water and groundwater, and procedures to remediate the potential effects on surface water or groundwater.
• The division is required to adopt rules governing the application of manure. The rules shall establish application rates and practices to minimize groundwater or surface water pollution resulting from application. The rules shall establish different application rates and practices based on the water holding capacity of the soil. The rules implementing this provision appear in 65.16 and .17. With the exception of small feeding operations, all operations must file such a plan with the department.
• The division must adopt engineering standards for the construction of manure storage structures.

The division completes action on a filing which was controversial when placed under notice in January. That notice contained a definition of "chiropractic physiotherapy procedures". This definition for physiotherapy was controversial because it was similar to the statutory definition of the licensed practice of physical therapy, as set out in %#167+148A.1. The lack of a statutory definition for chiropractic physiotherapy clearly implies the authority to define the term by rule, but the issue was whether this definition encroaches on the practice of physical therapy. In response to these concerns, the chiropractic board has dropped this definition.

The department adopts a general update of its maternal and child health program {MCH}; the last significant revision was in January, 1996. The program has existed since 1988. The MCH is largely funded though the federal government. Under the program the department contracts with local entities to provide prenatal, postpartum and child health services. The services available under the proposal are expanded beyond actual client care. Various health-related community wide programs are now added to the direct client services currently provided.

Income guidelines are 185% of the poverty guidelines, with persons between 185% and 300% eligible on a sliding scale basis {no change from current policy}.

Provisions for client appeals and grant application procedures are substantially similar to the existing provisions.

In response to the revision of the Iowa Administrative Procedure Act {1998 Iowa Acts, Chapter 1202} the department is revising its rules relating to contested cases. This proposal is controversial because of subrule 26.14(1), which provides in part: "Each contested case hearing shall be held and decided by an administrative law judge a presiding officer who is an administrative law judge employed by the department of workforce development." This provision is echoed by rule 26.2 which states in part: ""Presiding officer" means an administrative law judge employed by the department of workforce development."

These provisions in part conflict with the Iowa Administrative Procedure Act, as amended by 1998 Iowa Acts Chapter 1202. Section 15 of the Act provides in part that the presiding officer must be either the head of the agency, one or more members of a board or commission, or an ALJ provided by the division of administrative hearings, "if the agency is a named party to that proceeding or a real party in interest_"

This phrase means that under certain circumstances agencies may use their own cadre of ALJ's -- specifically where the agency serves to adjudicate a contested case rather than actively participate as a party. The department employs 14 ALJ's hearing over 15,000 unemployment insurance cases each year. During the debate over Chapter 1202 the department vigorously resisted having these ALJ's moved to the division of administrative hearings, arguing that the speed and efficiency of this unit might be compromised if it was moved to the division of administrative hearings.

The exemption in section 15 is not total; in those cases where the agency is a party to the contested case, an ALJ from the division of administrative hearings must be used. The legislature considered giving the department of workforce development expanding the exemption to specifically include both claims for benefits hearings (where the departments acts as an adjudicator) and also employer liability determination hearings, where the department has a direct interest in the matter; this legislation was not enacted {see: House File 717}.

Item 13 states that an applicant may receive unemployment benefits after a voluntary quit in the following circumstance:

"24.26(14) The individual left employment due to workplace or domestic violence perpetrated against the individual at, around or in connection with the work. The individual must make all reasonable efforts to continue in the employment and be forced to quit in order to protect the individual's own safety".

This new subrules comes from the federal Department of Labor and various abused spouse organizations and state civil rights organizations. The test for eligibility is whether a reasonable person would feel compelled to quit his or her employment; there must be evidence of stalking, such as a restraining order, police calls to work, advice of police, actual violence, etc. In short, evidence must be provided that a reasonable person would conclude compels that person to leave for his or her own safety.

The rule is controversial because the end result is that the benefits paid under this rule are charged to the employers' account even though the employer had no role or fault in the underlying dispute. More particularly, opponents note that the underlying statute--%#167+96.5(1) sets out nine specific circumstances where a voluntary quit still entitles the applicant to unemployment benefits. None of these paragraphs relate to workplace or domestic violence. The basic doctrine in such cases states the express mention of one thing in a statute implies the exclusion of those things not mentioned. Bennett v. Iowa Dept. of Natural Resources, 573 N.W.2d 25 (Iowa 1997).

The department responds with a number of Iowa cases in which the court opines on the meaning of "voluntary quit". Generally the cases stand for the proposition that what appears to be a voluntary quit under the statute may in fact be involuntary, depending on the surrounding circumstances; under those circumstances the claimant would receive unemployment benefits. The basic principle states:

"The section 96.5(1) disqualification is expressly couched in terms of "voluntary" leaving. The words "attributable to the employer", which appear in this statute, serve to identify those instances in which a claimant voluntarily absent from employment may nevertheless avoid disqualification from benefits. If the facts show, as they did in the Deere Manufacturing Co. case, that the employee was absent involuntarily, then under a proper interpretation of the statute, the words "attributable to the employer" simply have no application. Ames v. Employment Appeal Bd., 439 NW2d 669, 674 (Iowa 1989).

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