Legislature(1997 - 1998)

03/12/1997 09:08 AM Senate FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
Senate Bill No. 41                                                           
                                                                               
     "An Act relating to environmental audits to determine                     
     compliance    with   certain    laws,   permits,    and                   
     regulations."                                                             
                                                                               
                                                                               
Senator  Loren Leman,  related  that SB  41  was similar  to                   
legislation that he had introduced  in the 19th Alaska State                   
Legislature with SB 199;  furthermore, the prior legislation                   
had passed  the Senate,  but had been  in the  House Finance                   
Committee  when  the  legislature had  adjourned  the  prior                   
year.  He  noted that  when  the  bill had  been  originally                   
introduced,  it had  provided for  environmental audits,  as                   
well  as health  and safety  self-audits; however,  the bill                   
had  been  amended  in  the  judiciary  committee  over  his                   
objections and the health and  safety self-audit portion had                   
been deleted. He opined that  deleting the health and safety                   
self-audit portion  of legislation  was a mistake  and urged                   
the committee to  take another look at it  because having it                   
in the  bill would  provide additional benefits  to Alaska's                   
workers.  He reported  that SB  41 created  2 incentives  to                   
encourage  businesses   and  other  regulated   entities  to                   
conduct voluntary  self-audits of their  internal operations                   
and explained  that the  purpose of the  audits would  be to                   
identify and  correct any non-compliance  with environmental                   
regulations. He related that the  bill's first incentive was                   
limited immunity and explained  that entities that conducted                   
environmental  self-audits would  be immune  from civil  and                   
administrative   penalties   for    violations   that   were                   
discovered, provided  that several  conditions were  met. He                   
stated  that  the  regulated  entity  must  take  action  to                   
correct  the  identified  problem  and  prevent  its  future                   
occurrence  and that  immunity would  not  be available  for                   
violations   that  caused   substantial  offsite-damage   or                   
serious onsite  or offsite injury; additionally,  there were                   
several other conditions that must  be, which were contained                   
in the bill.                                                                   
                                                                               
Senator Leman continued  to speak to SB 41  and related that                   
the second  incentive in the  bill was  qualified privilege.                   
He  stated   that  the   self-critical  analysis   that  was                   
contained  within  an  audit   report  would  be  considered                   
privileged  and  therefore  not admissible  as  evidence  or                   
subject   to   discovery    in   civil   or   administrative                   
proceedings; this provision recognized  that an audit report                   
by nature was a  self-incriminating document that discovered                   
problems,   identified   what    personnel   or   management                   
deficiencies  were responsible,  and recommended  corrective                   
action.  He  offered  that  many   studies  had  shown  that                   
businesses or individuals opted  not to perform audits based                   
on  the fear  that the  resulting reports  would be  used by                   
agencies  or   hostile  3rd  parties   as  a   "roadmap"  to                   
prosecution;  as  with  the bill's  immunity  benefit,  this                   
privilege  also  had  limitations.  He  expounded  that  the                   
privilege  could  be  overcome  if it  was  asserted  for  a                   
fraudulent purpose or if the  regulated entity had failed to                   
take  the required  actions  to correct  the  areas of  non-                   
compliance. He  opined that  some people  had misrepresented                   
what the privilege did and had  referred to it as a cloak of                   
secrecy, but  offered that  this was not  the intent  of the                   
bill. He  stated that the  intent of the legislation  was to                   
create the  incentive for  people to  make changes  to their                   
operations, not to  create a cloak of secrecy  and urged the                   
committee to  see through the  language of the  opponents of                   
the  bill's  concept  and  details.  He  asserted  that  the                   
purpose  of  self-auditing  would  be to  bring  about  full                   
compliance with  regulations that  were designed  to protect                   
the  environment  and  that  the  intent  was  to  encourage                   
businesses    and   public    institutions   to    integrate                   
environmental   protection   measures  into   their   normal                   
operating  procedures. He  stated that  currently more  than                   
1,000  of the  world's  larger  corporations had  self-audit                   
programs  and that  the state  needed  to encourage  smaller                   
companies to  adopt those  programs as  well. He  noted that                   
many  of  the larger  companies  in  Alaska were  conducting                   
self-audits  and  that  the  bill  would  help  the  smaller                   
businesses to participate. He expressed  a desire to improve                   
and expand  the existing audit  programs and noted  that the                   
state could  not totally depend on  government inspectors to                   
regulate  business.  He offered  that  the  bill would  help                   
bring people into compliance.                                                  
                                                                               
Senator Leman  continued to discuss  SB 41 and  related that                   
20  other   states  had  passed  some   form  of  self-audit                   
incentive  legislation; additionally,  8  other states  were                   
debating the same measures  in their respective legislatures                   
in the current  year. He thought that the  success from this                   
type of legislation  had been very good and  related that he                   
had recently  returned from a conference  in Washington D.C.                   
where  he  had spoken  with  legislators  from other  states                   
regarding  the issue.  He stated  that self-audit  incentive                   
bills had been in  place in Texas for 2 or  3 years and that                   
the  program had  completed about  400 audits;  furthermore,                   
there  had been  substantial evidence  that the  program was                   
working as  intended. He stated  that in addition  to Texas,                   
several other states with  similar environmental concerns as                   
Alaska had  self-audit laws;  these states  included Oregon,                   
Idaho,  Utah, Colorado,  and Wyoming.  He  pointed out  that                   
legislation to  encourage self-auditing had  been introduced                   
in  the  last  congressional  session  and  understood  that                   
similar  legislation  would  be   introduced  in  the  105th                   
Congress. He  pointed out that  while other  measures talked                   
about making Alaska  open for business, SB  41 actually took                   
Alaska in that direction  and concluded that the legislation                   
would make  it clear  that Alaska  wanted a  cooperative and                   
not  a   confrontational  relationship  with   the  business                   
community.                                                                     
                                                                               
Senator Adams  noted that  he was  trying to  understand the                   
bill and  inquired if  it encouraged  companies to  clean up                   
their  acts   without  penalties  from  the   Department  of                   
Environmental   Conservation   (DEC)  through   self-audits.                   
Senator   Leman  replied   that  the   bill  would   provide                   
incentives  so that  companies would  make changes  to their                   
existing operations  if they had identified  shortcomings in                   
operations  that  they  did  not  know  existed  outside  of                   
conducting the  audit; in this  case there would  be limited                   
immunity and privilege.                                                        
                                                                               
Senator Adams inquired  if the bill provided  the same right                   
to   municipalities.   Senator   Leman  responded   in   the                   
affirmative and stated that municipalities  would be able to                   
participate. He  related that in  the Texas,  the university                   
and the municipalities had profound participation.                             
                                                                               
Senator Adams directed the committee's  attention to page 6,                   
line  27  through  page  7,  line  15  of  the  bill,  which                   
discussed  an  exemption  of disclosure  by  the  court;  he                   
inquired  if  this  section represented  a  "catch  22"  and                   
further queried  how a party  seeking disclosure  under this                   
section would prove  anything if they did not  know what the                   
report   contained  and   therefore,   did   not  have   the                   
information.  Senator Leman  responded that  the section  in                   
question provided  for an in-camera  review and it  would be                   
looked  at in  the  judge's chambers.  Senator Adams  opined                   
that this represented a problem.                                               
                                                                               
JANICE  ADAIR,  DEPARTMENT  OF  ENVIRONMENTAL  CONSERVATION,                   
ANCHORAGE (via teleconference), stated  that the sponsor had                   
been working with  DEC on the bill, but  that the department                   
still had areas of concern.  She related that the department                   
thought there  was a way  to properly construct  a privilege                   
and immunity  for self-audits that would  not jeopardize the                   
primacy  of federally  delegated programs.  She stated  that                   
the  bill's  sponsors  had  been  open  to  several  of  the                   
department's suggestions, but that  there were still several                   
areas  that needed  to  be addressed;  the  burden of  proof                   
section  that Senator  Adams had  pointed out  was one  area                   
that the department felt should  be addressed. She explained                   
that the department  wanted to ensure that  the objective or                   
underlined  facts were  not subject  to  the privilege.  She                   
thought that  some of the  definitions had been  affected by                   
amendments  that  had  been made  in  the  Senate  Judiciary                   
Committee   and  that   those  needed   to  be   looked  at;                   
additionally,  similar  terms  in  the  bill  needed  to  be                   
reviewed. She  related that there  was concern in  DEC about                   
how the bill would impact pipeline-tariff cases.                               
                                                                               
Co-Chair  Sharp  inquired  if Ms.  Adair  had  Amendments  1                   
through 7.  Ms. Adair  replied in the  affirmative. Co-Chair                   
Sharp requested Ms.  Adair to address any  of the amendments                   
that the department felt would meet some of its concerns.                      
                                                                               
Ms. Adair stated  that Amendment 6 was  the tariff amendment                   
that the  department had offered to  address those concerns;                   
however,  the  other amendments  had  not  been designed  to                   
address concerns of the department.                                            
                                                                               
Senator  Adams  requested  an  explanation  of  the  section                   
contained within page 6, line 17  through page 7, line 15 of                   
the bill  and admitted  that he  was having  difficulty with                   
that section. She explained that  the section stated that if                   
a   person   believed   that    the   privilege   had   been                   
inappropriately  applied to  the  audit  report, they  could                   
request  the  court or  hearing  officer  to set  aside  the                   
privilege; furthermore,  the bill lined out  the reasons why                   
a person could  make such a request. She  explained that the                   
problem was that  subsection (b), which was on  page 7, line                   
15, put  the burden of proof  on the person that  any of the                   
exceptions applied.  She explained  that case  law indicated                   
that asking somebody  prove something for which  they had no                   
knowledge   was   an   extremely   difficult   hurdle;   the                   
department's suggestion was that  a party seeking disclosure                   
could make  a prima facie  case that  gave a reason  why the                   
exception should  apply. She offered that  asking someone to                   
prove something from  a document that they had  not seen was                   
impossible.                                                                    
                                                                               
Senator Adams  observed that needing  an exception  would be                   
difficult  to  prove  without  the  information.  Ms.  Adair                   
stated for  example that  a prima  facie case  might involve                   
the second  exception, which was injury;  she explained that                   
if  a party  was injured  and believed  that an  audit would                   
show  that  the  company  in  question  knew  the  potential                   
existed  but  did not  take  action  or contributed  to  the                   
injury,  then the  party would  have to  demonstrate to  the                   
court why  they thought that.  She explained that  the prima                   
facie  case would  not require  someone to  prove something,                   
but would  require a  reasonable explanation  as to  why the                   
party thought  there was  an exception;  at this  point, the                   
court would be  in a position to agree or  disagree with the                   
case  and   whether  or  not   the  information   should  be                   
disclosed.                                                                     
                                                                               
MIKE  HANUS, SENIOR  STAFF  ENGINEER,  EXXON COMPANY  U.S.A.                   
(via  teleconference), stated  that the  Alaska Oil  and Gas                   
Association  (AOGA)  supported  the  intent  of  SB  41.  He                   
explained  that  AOGA  was  a  19-member  trade  association                   
company  that accounted  for  the majority  of  oil and  gas                   
exploration,   production,  transportation,   refining,  and                   
marketing  activities  in  Alaska.   He  related  that  AGOA                   
supported   the    intent   of    environmental   self-audit                   
legislation  that  provided   immunity  from  penalties  and                   
ensured confidentiality  and explained that the  majority of                   
AGOA members  currently conducted self-audits as  a means of                   
ensuring compliance;  furthermore, the company saw  value in                   
legislation  that  encouraged  the  regular  utilization  of                   
self-audits   by  providing   immunity  and   privilege.  He                   
explained  that  immunity  would  act as  an  incentive  for                   
companies   to   identify,    correct,   and   prevent   the                   
reoccurrence of non-compliant  behavior; privilege protected                   
the   company   from   the  unnecessary   repercussions   of                   
disclosing  all  of  it  results  and  helped  preserve  the                   
integrity of the  audit process. He stated  that looking for                   
deficiencies,  identifying  them,  disclosing  them  to  the                   
appropriate  agencies,  and  making  corrections  were  what                   
self-auditing was  about. He offered that  self-auditing was                   
an  important tool  for voluntary  compliance and  that AOGA                   
believed  the  legislation moved  the  lines  in a  positive                   
direction  towards encouraging  self-auditing. He  concluded                   
that AOGA  would continue to  work with DEC,  the Department                   
of Law, and bill's sponsors on SB 41.                                          
                                                                               
SUSAN  SCHRADER,  EXECUTIVE DIRECTOR,  ALASKA  ENVIRONMENTAL                   
LOBBY  (via teleconference),  testified against  SB 41.  She                   
explained  that   the  Alaska  Environmental  Lobby   was  a                   
coalition  of   different  conservation   groups  throughout                   
Alaska  that represented  about 10,000  members. She  shared                   
that she  had been  the draftee of  the position  paper that                   
Senator  Leman "has  suggested  perhaps misrepresented  this                   
legislation." She  respectfully disagreed that  her position                   
paper misrepresented the bill and  opined that it offered an                   
alternative interpretation  of "these"  bills that  had been                   
passed  in  other  states.  She  reported  that  the  Alaska                   
Environmental Lobby  supported the  goal of the  bill, which                   
was  to encourage  compliance  by  providing incentives  for                   
regulated  industry  to   voluntarily  find,  disclose,  and                   
correct  violations  of  environmental  laws;  however,  the                   
lobby was  of the  opinion that the  bill would  not achieve                   
this  goal. She  offered that  responsible corporations  did                   
not need the added secrecy  and immunity privileges in order                   
to  audit their  operations. She  stated that  in 1997,  the                   
Environmental  Protection Agency  adopted its  self-policing                   
program  and  reported  that  the  program  appeared  to  be                   
working  nicely;  to  date, 105  companies  had  voluntarily                   
disclosed  violations at  over 350  facilities. She  offered                   
that  responsible  companies  were doing  fine  without  the                   
added privilege  and secrecy provisions within  the bill and                   
opined that  the legislation  would make  it easier  for the                   
industries that  were irresponsible to continue  to act that                   
way.  She stated  that the  Alaska Environmental  Lobby felt                   
that  the bill  was one  of  secrecy that  would keep  vital                   
information hidden  from review by the  agencies that Alaska                   
depended on to  enforce the laws, as well as  keep it hidden                   
from the legal system. She  pointed out that the legislation                   
limited employees'  right to know,  as well as the  right to                   
know  of  property  owners  who  were  adjacent  to  certain                   
industries.  She related  that in  other states,  there were                   
cases in which residents who  were living near landfills had                   
great  difficulty obtaining  information regarding  concerns                   
of possible contaminated ground  water and problems with air                   
quality due to methane escapes.                                                
                                                                               
Ms.  Schrader continued  to speak  to the  bill and  offered                   
that  it would  increase litigation  because the  people who                   
needed  the  information  would   have  to  undergo  a  long                   
laborious  court process  to try  to overcome  the privilege                   
requirement   in  the   legislation;  furthermore,   in  the                   
meantime,  drinking water  may have  been contaminated.  She                   
opined  that  the  legislation   would  allow  companies  to                   
conceal and  condone non-compliance and that  the supporters                   
of the bill were making  the assumption that companies would                   
come forward  with their  violations and  correct them  in a                   
timely manner;  however, she did  not see the  incentive for                   
companies to come forward with  their violations and correct                   
them in  a timely  manner. She  opined that  past experience                   
had shown that  prompt compliance was not  always the course                   
of action that industry would  choose. She reported that the                   
Alaska Environmental  Lobby felt that the  bill would create                   
more  confusion, litigation,  and  expense  and pointed  out                   
that DOL  had offered over  a 12  amendments to the  bill in                   
previous committees  in order to clarify  the legal language                   
in  the  legislation;  this  was  a  prime  example  of  the                   
problems that the courts would  be facing if the legislation                   
was  enacted.  She  pointed out  that  the  term  "construed                   
broadly" in the legislation's  definition section would pull                   
in all  manner of  federal, state,  and municipal  laws. She                   
offered  that legislation  that safeguarded  the environment                   
was passed out of necessity  and was typically a reaction to                   
a  nasty problem  that  needed  to be  fixed.  She spoke  of                   
industry's "less  than admirable" record  of self-regulating                   
and  opined that  the bill  would only  weaken a  process in                   
Alaska  that  was  already  weakened  by  budget  cuts.  She                   
offered that  the bill's intent  could and should be  met by                   
simple  legislation that  provided clear  incentives through                   
leniency  for  self-disclosure  and  correction  that  would                   
define  the time  windows and  would  not contain  privilege                   
provisions.                                                                    
                                                                               
SB  41  was   HEARD  and  HELD  in   committee  for  further                   
consideration.                                                                 
                                                                               
SB 35 was SCHEDULED but not HEARD.                                             
                                                                               
SB 109 was SCHEDULED but not HEARD.                                            
                                                                               
Co-Chair Sharp discussed the following meeting's agenda.                       
                                                                               

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