Legislature(1997 - 1998)
02/26/1997 01:40 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 41 ENVIRONMENTAL & HEALTH/SAFETY AUDITS
MR. MIKE PAULEY, staff to Senator Leman, sponsor of SB 41, noted
submitted a packet of 24 amendments from various sources: the
sponsor, industries affected by the bill, DEC, and the Department
of Law. (A COPY OF THE AMENDMENTS IS ATTACHED TO THE END OF THIS
DOCUMENT.)
CHAIRMAN TAYLOR said the subject of the second amendment was
reasonable: 90 days instead of 30. MR. PAULEY said DEC does not
oppose amendments 1 and 2.
CHAIRMAN TAYLOR asked what impact deleting the word "only" in
amendment #4 would have. MR. PAULEY explained it refers to the
circumstances in which one could disclose the audit report, but not
waive the privilege.
MR. PAULEY said amendment #5 specifies privileged information can
only be disclosed to a lawyer or someone who works for that lawyer.
Amendment #6 provides that if an audit report is shared with
someone else under terms of a confidentiality agreement, anyone who
violates that agreement is liable for damages. He thought that
provision was omitted inadvertently.
MR. PAULEY continued explaining the amendments.
Amendment #7 clarifies that all parties agree that the
privilege described in this bill does not shield underlying
facts.
Amendment #8 relates to privilege for information relating to
pipeline tariffs.
Amendment #9 provides that privilege and immunity can be
overcome if the violation in question poses an imminent threat
of injury, and is one of the things EPA looks for.
Amendment #10 adds an administrative hearing officer, in
addition to the courts.
Amendment #11 is a semantic change for the purpose of
consistency.
Amendment #12 specifies which portions of an audit can be
viewed during an investigation.
Amendment #13 addresses EPA's concern by conditioning
immunity.
Amendment #14 pertains to the notice requirement for audits.
Amendment #15 establishes that nothing in the bill will
prevent a regulatory agency from seeking injunctive relief or
issuing an emergency order in situations involving imminent
and substantial danger.
Amendment #16 clarifies conditions for immunity for repeat
violations by companies with facilities located in other
states.
Amendment #17 is a grammatical correction.
Amendment #18 replaces "offense" with "violation" to conform
with civil procedure language in Alaska.
Amendment #19 deals with economic benefit if the non-compliant
owner/operator has gained an economic benefit from non-
compliance.
Amendment #20 allows electronic filing of audit disclosures.
Amendment #21 adds language to the definition of what might be
included in an audit report.
Amendment #22 adds material to the definition of "confidential
self-evaluation and analysis" to specify employee interview
notes or field notes are included in the definition of
privileged audit information.
CHAIRMAN TAYLOR clarified the interviewer's words are provided
immunity, but not necessarily the documents of the interviewee.
MR. PAULEY continued.
Amendment #23 deletes any reference to DHSS.
Amendment #24 contains definitions for the words
"intentionally," "knowingly," and "recklessly" from the
criminal code.
Number 240
SENATOR TAYLOR said his intention was to entertain a motion to
adopt all 24 amendments. If any member has objection to any
specific amendment within that package, he would withdraw it from
the motion and address it individually.
SENATOR ELLIS objected to amendments #7 and #8 because Ms. Adair of
DEC had to drop off the teleconference and was unable to comment.
SENATOR PEARCE moved to adopt Amendments 1-24, except for #7 and
Number 260
SENATOR MILLER moved to adopt Amendment #7. SENATOR ELLIS objecte
for the purpose of hearing DEC's comments.
Number 279
MS. MARIE SANSONE, Department of Law, said the inclusion of the
term "objective facts" was very important because they do not want
subjective opinions.
CHAIRMAN TAYLOR asked her to give him an example of how one could
write a self-audit report and not make reference to objective facts
that make up the report. MS. SANSONE answered the portion of the
report that is to remain privileged concerns the auditor's
evaluation: findings, conclusions, opinions, and the recommended
plan for corrective action. The actual facts gathered and relied
on to make conclusions would not be privileged. CHAIRMAN TAYLOR
asked why a pulp mill would hire an expert to gather samples hourly
to review its operations and ensure compliance if that data is not
privileged. Why hire anyone to do anything other than give
conjecture and recommendations if that is the only thing that can
be shielded?
Number 311
MS. SANSONE explained if the privilege is used to shield objective
facts, it can be used to sweep up a lot of valuable information
used to determine violations. To allow privilege to shield that
information would jeopardize the credibility of the enforcement
program. People should have access to objective facts but not to
the auditor's thoughts about sampling methods or conclusions about
the samples.
Number 319
CHAIRMAN TAYLOR repeated if the facts are not going to be
privileged, he does not believe anyone will ever hire someone to
come in and do tests.
Number 364
MS. SANSONE explained the purpose of the audit privilege is to
encourage people to evaluate their own conduct and undertake
activities to correct and prevent violations. Most businesses have
an incentive to do that anyway. The Administration does not
believe that incentive should extend to the objective facts.
SENATOR ELLIS reminded the Chairman there was a packet of
amendments from him as well.
CHAIRMAN TAYLOR asked the question. SENATOR ELLIS maintained his
objection. SENATORS PEARCE, MILLER, PARNELL AND TAYLOR voted yes;
SENATOR ELLIS voted no. The motion to adopt Amendment #7 passed.
CHAIRMAN TAYLOR announced the remaining amendments would be heard
at the next hearing and adjourned the meeting at 3:44 p.m.
The following amendments were submitted by Senator Leman.
A M E N D M E N T #1
Page 3, line 7:
Following "certified mail":
Insert: "with return receipt requested"
Page 3, line 7:
Following "to the":
Insert: "commissioner's office of the"
A M E N D M E N T #2
Page 3, lines 12-13:
Change wording as follows:
Once initiated, an audit shall be completed within a
reasonable time, but no longer than 90 days [30 DAYS] unless
a longer period of time is agreed upon between the owner or
operator and the department.
A M E N D M E N T #3
Page 3, lines 30-31:
Change wording as follows:
A person claiming the privilege described in this section
has the burden of establishing [PROVING] the applicability
of the privilege.
A M E N D M E N T #4
Page 4, lines 23-27:
In subsection (b), delete the word "only":
(b) Disclosure of the part of an audit report or
information consisting of confidential self-evaluation or
analysis does not waive the privilege established by AS
09.25.450 if the disclosure is made [ONLY]
(1) to address or correct a matter raised by the
environmental or health and safety audit and is made [ONLY]
to....
A M E N D M E N T #5
Page 4, line 30:
Delete all material.
Insert: "(B) the owner or operator's lawyer or the lawyer's
representative;"
A M E N D M E N T #6
Page 5, after line 22:
Add a new subsection (d) as follows:
(d) A party to a confidentiality agreement described in
(b)(2) of this section who violates that agreement is liable
for damages caused by the disclosure and for other penalties
stipulated in the confidentiality agreement.
A M E N D M E N T #7
Page 5, line 25:
Delete the reference to "objective facts" in 09.25.460 (a):
(a) There is no privilege under AS 09.25.450 for that
part of an audit report that contains the following:
[ (1)OBJECTIVE FACTS; ]
A M E N D M E N T #8
Page 6, lines 15-16:
Reword subsection (b) as follows:
The parts of an audit report that consist of information
necessary to determine pipeline rates, tariffs, fares, or
charges are not privileged and are admissible as evidence
and subject to discovery in a proceeding relating to
pipeline rates, tariffs, fares, or charges. [AN AUDIT
REPORT IS NOT PRIVILEGED AND IS ADMISSIBLE AS EVIDENCE AND
SUBJECT TO DISCOVERY IN A PROCEEDING RELATING TO PIPELINE
RATES, TARIFFS, FARES, OR CHARGES.]
A M E N D M E N T #9
Page 6, line 24:
Following "offsite":
Insert: "or the imminent or present threat of such injury"
Page 7, line 13:
Following "offsite":
Insert: ", or if the violation poses an imminent or present
threat of such injury"
A M E N D M E N T #10
Page 6, line 17:
Following "court":
Insert "or administrative hearing officer"
Page 6, line 19:
Following "civil":
Insert "or administrative"
Page 6, line 19:
Following "court":
Insert "or administrative hearing officer"
Page 9, line 7:
Following "court":
Insert "or administrative hearing officer"
A M E N D M E N T #11
Page 7, line 16:
Following "obtained by the ":
Delete "person"
Insert "owner or operator"
A M E N D M E N T #12
Page 7, line 26 through page 8, lines 4:
Delete all material.
Page 8, lines 14 - 19:
Reword paragraph as follows:
(4) cooperate with the appropriate agency in connection
with an investigation of the issues identified in the
disclosure; an agency may request that the owner or operator
allow the agency to review, under an agreement as described
in AS 09.25.455(b)(3), the part of the audit report that
describes the implementation plan or tracking system
developed to correct past noncompliance, improve current
compliance, or prevent future noncompliance. [RELEVANT
PORTIONS OF THE CONFIDENTIAL SELF-EVALUATION AND ANALYSIS AS
NECESSARY TO DETERMINE THAT APPROPRIATE CORRECTIVE ACTIONS
HAVE BEEN IDENTIFIED].
A M E N D M E N T #13
Page 8, after line 8:
Add a new paragraph (d) (2) as follows:
(2) promptly initiate appropriate efforts to discontinue,
abate, or mitigate any conditions or activities causing
injury or likely to cause imminent injury to one or more
persons at the site audited or to persons, property, or the
environment offsite.
A M E N D M E N T #14
Page 8, lines 20-22; Page 9, lines 1-2:
Reword subsection (g) as follows:
(g) During the period between receipt of the audit notice
required under AS 09.25.450(b) and the specified end date of
the audit [AUDIT PERIOD SPECIFIED IN THE NOTICE REQUIRED
UNDER AS 09.25.450(b)], the department may not initiate an
inspection, monitoring, or other investigative activity
concerning the audited facility, operation, or property
based [SOLELY] on the receipt of a notice under AS
09.25.450. The department has the burden of proving that an
inspection, monitoring, or other investigative activity
concerning the audited facility, operation, or property
initiated after receiving a notice under AS 09.25.450 was
not initiated based [SOLELY] on receiving the notice.
A M E N D M E N T #15
Page 9, after line 5:
Insert new subsection:
(i) This section may not be construed to prevent a
regulatory agency from(1) seeking injunctive relief; or
(2) issuing an emergency order in situations involving an
imminent and substantial danger to public health or welfare
or the environment.
A M E N D M E N T #16
Page 9, lines 11-13:
Amend 09.25.480(a)(1)(B) as follows:
(B) within the 36 months preceding the violation,
repeatedly or continuously committed, at the same facility
or associated facilities located in the state, the specific
violation or closely related violation for which immunity is
sought; or [VIOLATIONS THAT ARE THE SAME AS, OR SIMILAR TO,
THE VIOLATION FOR WHICH THE IMMUNITY IS SOUGHT;]
A M E N D M E N T #17
Page 9, line 15:
Following "into compliance and":
Delete: "and this failure"
Insert: "so as to constitute"
A M E N D M E N T #18
Page 9, lines 17-20:
Reword paragraph (a)(2) as follows:
(2) the violation [OFFENSE] was committed intentionally or
knowingly by a member of the owner's or operator's
management or an agent of the owner or operator and the
owner's or operator's policies or failure to have in place
systems reasonably designed to prevent such violations [LACK
OF PREVENTION SYSTEMS CONTRIBUTED MATERIALLY TO THE
OCCURRENCE OF THE VIOLATION.]
A M E N D M E N T #21
Page 10, lines 13-16:
Add new language to 09.25.490 (a)(1)(A) as follows:
(A) a report, prepared by an auditor, monitor, or similar
person, including the scope of the audit, the dates the
audit began and ended, the information gained in the audit,
findings, conclusions, recommendations, exhibits, and
appendices; the types of exhibits and appendices that may be
contained in an audit report include supporting information
that is collected or developed for the primary purpose of
and in the course of an environmental or health and safety
audit, including
(i) interviews with current or former employees;
(ii) field note and records of observations;
(iii) findings, opinions, suggestions, conclusions,
guidance, notes, drafts, and memoranda;
(iv) legal analyses;
(v) drawings;
(vi) photographs;
(vii) laboratory analyses and other analytical data;
(viii) computer generated or electronically recorded
information;
(ix) maps, charts, graphs, and surveys; and
(x) other communications and documents associated
with an environmental or health and safety audit;
A M E N D M E N T #22
Page 10, lines 22-27:
Add new language to definition of "confidential self-
evaluation and analysis" as follows:
(2) "confidential self-evaluation and analysis" means the
part of an audit report that consists of interviews with
current or former employees; field notes and records of
observations made by the auditor; findings, opinions,
suggestions, conclusions, guidance, notes, drafts, and
analyses performed by the auditor; memoranda and documents
that evaluate or analyze all or part of the material
described in the audit report, including implementation
issues or an audit implementation plan or tracking system to
correct past noncompliance, improve current compliance, or
prevent future noncompliance with an environmental or
health and safety law, and that is...
A M E N D M E N T #23
Page 11, line 2:
Delete the words "Department of Health and Social Services":
(3) "department" means the Department of Environmental
Conservation, the Department of Labor, [AND THE DEPARTMENT
OF HEALTH AND SOCIAL SERVICES,] as appropriate;
A M E N D M E N T #24
Page 11, line 21:
Delete all material.
Page 11, line 22:
Delete all material.
Page 11, line 28:
Delete all material.
Re-number definitions accordingly.
Page 12 following line 3:
Add a new subsection as follows:
"(c) For purposes of this chapter, unless the context
requires otherwise,
(1) a person acts "intentionally" with respect to a result
described by a provision of law defining a violation when the
person's conscious objective is to cause that result; when
intentionally causing a particular result is an element of a
violation, that intent need not be the person's only objective;
(2) a person acts "knowingly" with respect to conduct or to
a circumstance described by a provision of law defining a
violation when the person is aware that the conduct is of that
nature or that the circumstance exists; when knowledge of the
existence of a particular fact is an element of a violation, that
knowledge is established if a person is aware of a substantial
probability of its existence, unless the person actually believes
it does not exist; a person who is unaware of conduct or a
circumstance of which the person would have been aware had that
person not been intoxicated acts knowingly with respect to that
conduct or circumstance;
(3) a person acts "recklessly" with respect to a result or
to a circumstance described by a provision of law defining a
violation when the person is aware of and consciously disregards
a substantial and unjustifiable risk that the result will occur
or that the circumstance exists; the risk must be of such a
nature and degree that disregard of it constitutes a gross
deviation from the standard of conduct that a reasonable person
would have been aware had that person not been intoxicated acts
recklessly with respect to the risk.
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