Legislature(1995 - 1996)
03/11/1996 03:37 PM Senate RES
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
SB 199 ENVIRONMENTAL & HEALTH/SAFETY AUDITS
SENATOR PEARCE moved to adopt the workdraft (f)Lauterback 3/9/96 as
their working document. There were no objections and it was so
ordered.
MIKE PAULEY, Staff to Senator Leman, said the new committee
substitute incorporates certain recommendations they received from
both the business community and the administration. Many changes
are technical matters. They have added clarifying language in the
area of privilege saying that if one part of an audit report is
disclosed for any reason, the privilege still applies to the
remaining portions of the audit report. This is necessary because
some federal courts have adopted a four part test for determining
claims of privilege on the basis of self critical analysis.
They have added to the list of nonprivilege materials such
information that is required in order to obtain, maintain, or renew
a license and also such information that is required under a
contract with the State. These changes were made to address
concerns of administration representatives.
In the area of immunities they clarified that a regulated entity
which voluntarily reports instances of noncompliance is not only
eligible for immunity for the violations reported, but also
violations that are based on the facts disclosed and which were
unknown to the person making the disclosure. This change was made
because of the concern that a person might not be covered by
immunity for violations that were discovered as a result of a
voluntary disclosure, but were not declared as violations in the
disclosure. This possibility could be a powerful disincentive to
voluntarily report violations.
An extra requirement has been added for immunity. A regulated
entity is required to disclose under terms of the confidentiality
agreement that part of an audit report which deals with the plan
for compliance, but only if the information is requested by the
appropriate regulatory agency.
A new paragraph has been added to the bill clarifying that a
regulatory agency may not initiate an investigation of a regulated
entity based solely on the fact that the entity has provided a
notice of intent to perform a self audit.
He said that the circumvention by regulation prohibited regulation
was deleted because it is already covered in another part of State
law.
SENATOR LEMAN noted that made three major changes that were
requested by DEC.
SENATOR LEMAN noted that the circumvention regulation was addressed
in AS44.62.030. He said they wanted to make sure it was covered
not only by regulation, but by permit and other administrative
action as well. They do not want to do things that are contrary to
statute.
DWIGHT PERKINS, Special Assistant, Department of Labor, said in the
hearing on this bill last week Mr. Paul Grossi, Director, Workers
Compensation, and Mr. Jeff Carpenter, Occupational Safety both
testified why they have concerns. The Commissioner didn't have a
problem with the legislation prior to introduction of the bill.
After going through the bill they found that it does significantly
change their role in Workers Compensation. On March 5 they had a
letter prepared reviewing their concerns and he noted it was in
their packets. He said they would be happy to work with the
committee.
TAPE 96-26, SIDE B
Number 582
SENATOR LEMAN commented he was frustrated that they were notified
of concerns after the first hearing when the bill had been out for
60 days. MR. PERKINS responded that during the first hearing the
DOL and DEC did speak, but they ran out of time and the Department
of Labor didn't go on record. SENATOR LEMAN apologized.
MR. WHEELER, Alaska Environmental Lobby, commented that none of
their concerns had been addressed in this CS. He said they are
worried about the health and safety of the citizens of Alaska.
This legislation shows a blatant disregard for the health of the
public. The bill seems to make it harder for DEC and other State
agencies to do their jobs by extending the right of privilege to
information disclosed in self audits, by allowing industry to get
around working toward compliance by excusing persons ignorant of
the law and granting immunity for violations which industry hasn't
even acknowledged breaking.
MR. WHEELER said there was little evidence for protection against
bad actors. There's not much talk about repeat violators. They
are also concerned with interjecting "substantial" when referring
to injury on page 4 of the summary of changes.
SENATOR LEMAN said the intent of this legislation was to get people
to come in compliance with environmental laws and he thought the
bill accomplished that. He wanted to address some of his concerns.
Number 525
JANICE ADAIR, Director , Division of Environmental Health, said she
continues to have concerns with the privilege and that immunity is
provided for criminal activity, and continue to have concerns with
the broad definition of environmental health and safety law. She
also pointed out that in the section regarding substantial harm and
substantial injury she had pointed out that there was
inconsistency.
SENATOR TAYLOR asked if there was anyone here from ADF&G who wanted
to address the $66,500 fiscal note submitted with the bill. He
asked specifically why they would need additional staff to
encourage people to come into compliance.
GERON BRUCE, ADF&G, said they are looking at their authority under
AS16.05.870 which regards anadromous streams, crossing, and other
activities in the streams. Because of the broad application of
privilege and immunity to information provided by this legislation
they feel they would have to have some increased effort to develop
their own sources of information when they suspect violations are
occurring. In the past they have enjoyed good relationships with
the companies in the field and they have gone to them for a lot of
information, but they don't think that is likely to continue under
this legislation.
SENATOR TAYLOR countered that the self audit would be an effort to
comply and would only impact the law if, in fact, it did.
MR. BRUCE said he thought they were seeing things differently
developing the balance between allowing private industry to conduct
their business and our responsibility to protect the public
resources. They are not eager to prosecute people. They have very
few prosecutions under their authorities to protect anadromous fish
streams. They generally try to work with operators up front to
prevent problems and when problems are detected to then work with
them to correct them. Because of the broad nature of the
legislation some operators may not be willing to cooperate the same
way they have in past. The Department may have to develop
independent information where they think violations have occurred,
because they will see this as a way to shield themselves from
actions which were not in compliance.
SENATOR LEMAN noted that the protection of the self audit only
applies if the party who does the audit performs immediate
compliance with the law. He thought the Committee should be seeing
negative fiscal notes from all departments.
SENATOR TAYLOR asked for an example of how this could be used as a
shield. In response MR. BRUCE explained that someone going to
engage in some kind of activities in an anadromous fish stream is
supposed to notify the Department, supply plans about their
intentions, and then receive a permit from them. After that, they
pretty much operate on their own. For some reason, if they
deviated from the terms of the permit that resulted in some damage
of the stream, they could conduct one of these audits, disclose the
information, then perhaps engage in some activity to correct the
problem. The State would be in the position of arguing whether or
not their corrective action was actually equal to what they thought
it should be.
SENATOR TAYLOR said he thought their department would probably be
consulted on what was the best remedial action. They don't get the
shield unless they haven't cleaned up their act.
MR. BRUCE said their fiscal note addresses the cost of collecting
information to demonstrate that a violation has occurred since
under this legislation they can't get the information from the
operator themselves if they have conducted an audit and the
information is then confidential.
SENATOR LEMAN commented that he thought they had the capacity to
put in permit conditions which are not protected under the audit.
MR. BRUCE said he thought it would be helpful for his staff to get
together with some of their field people to walk them through some
other examples.
Number 312
SENATOR TAYLOR asked if he had conferred with other States to see
if they needed additional funding for self audit programs. MR.
BRUCE said they didn't and one of the reasons they didn't contact
the state of Texas is there's so much difference between the two
states. Texas, for instance, doesn't have salmon resources. He
wasn't sure their experience would help us that much with the
unique laws we have on the books to protect our salmon resources.
Number 299
SENATOR HOFFMAN moved to adopt the Department of Labor amendment to
add "except for worker's compensation proceedings." There were no
objections and it was so ordered.
SENATOR TAYLOR moved to pass CSSB 199 am from committee with
individual recommendations. There were no objections and it was so
ordered.
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