SB 205: "An Act relating to occupational health and safety audits to determine compliance with certain laws, permits, and regulations."
00SENATE BILL NO. 205 01 "An Act relating to occupational health and safety audits to determine compliance 02 with certain laws, permits, and regulations." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. FINDINGS; INTENT. The legislature finds and intends as follows: 05 (1) as occupational health and safety regulations evolve, performance-based 06 standards will increasingly replace the traditional command-and-control approach of state 07 regulatory practices; this shift is expected to save money for both the state and regulated 08 entities and to lead to the integration of occupational health and safety protections and normal 09 operating procedures for regulated facilities and operations; in order to foster a partnership 10 between the public and private sectors and promote this integration, it is the intent of the 11 legislature to establish under this Act a responsible incentive program to encourage voluntary, 12 critical self-evaluation and analysis by regulated entities of their compliance with occupational 13 health and safety requirements by authorizing certain qualified privileges and immunities 14 related to those self-evaluations;
01 (2) the public has a strong interest in encouraging routine self-review of 02 occupational health and safety business practices and procedures; this encouragement can best 03 be achieved by preserving the free flow of information; the free flow of the kind of 04 information that is generated by self-audits would be curtailed if a privilege for the audits 05 were not available; therefore, it is the intent of the legislature to recognize an audit privilege 06 under this Act to protect the confidentiality of communications related to voluntary internal 07 occupational health and safety audits; however, the legislature does not intend that the parts 08 of an audit report consisting of confidential self-evaluation and analysis that are privileged 09 under this Act may be used to shield a person from liability under applicable laws and 10 regulations by blocking access to underlying facts; 11 (3) the public also has a strong interest in obtaining cost-effective correction 12 of inadvertent occupational health and safety violations; this goal can best be achieved by 13 offering qualified immunity from administrative and civil penalties to regulated persons who 14 promptly report known violations of occupational health and safety regulations that are 15 uncovered as part of an audit so that the violations can promptly be corrected and a 16 compliance plan can be negotiated with the appropriate government agency; 17 (4) an effective enforcement program is also necessary to protect the public 18 health and welfare and the environment; the legislature intends that the audit privilege and the 19 immunities established in this Act should be applied in a manner that promotes compliance 20 with occupational health and safety laws, whether through voluntary compliance or through 21 enforcement efforts. 22 * Sec. 2. AS 09.25 is amended by adding new sections to read: 23 Article 5. Privileges and Immunities 24 Related to Disclosure of Certain Self-Audits and Violations. 25 Sec. 09.25.450. Audit report privilege. (a) Except as provided in 26 AS 09.25.460, an owner or operator who prepares an audit report or causes an audit 27 report to be prepared has a privilege to refuse to disclose, and to prevent another 28 person from disclosing, the parts of the report that consist of confidential self- 29 evaluation and analysis of the owner's or operator's compliance with occupational health and 30 safety laws. Except as provided in AS 09.25.455 - 09.25.480, the privileged information is 31 not admissible as evidence or subject to discovery in
01 (1) a civil action, whether legal or equitable; or 02 (2) an administrative proceeding, except for workers' compensation 03 proceedings. 04 (b) With respect to confidential self-evaluation and analysis in an occupational 05 health and safety audit, in order to qualify for the privilege under this section and the 06 immunity under AS 09.25.475, at least 15 days before conducting the audit, the owner 07 or operator conducting the audit must give notice by electronic filing that complies 08 with an ordinance or regulation authorized under (j) of this section or by certified mail 09 with return receipt requested to the commissioner's office of the department, and, when 10 the audit includes an assessment of compliance with a municipality's ordinances, to 11 the municipal clerk, of the fact that it is planning to commence the audit. The notice 12 must specify the facility, operation, or property or portion of the facility, operation, or 13 property to be audited, the date the audit will begin and end, and the general scope of 14 the audit. The notice may provide notification of more than one scheduled 15 occupational health and safety audit at a time. Once initiated, an audit shall be 16 completed within a reasonable time, but no longer than 90 days, unless a longer period 17 of time is agreed upon between the owner or operator and the department or the 18 municipality, as appropriate. The audit report must be completed in a timely manner. 19 (c) The following persons may claim the privilege available under (a) of this 20 section: 21 (1) the owner or operator who prepared the audit report or caused the 22 audit report to be prepared; 23 (2) a person who conducted all or a portion of the audit but did not 24 personally observe or participate in the relevant instances or events being reviewed for 25 compliance; 26 (3) a person to whom confidential self-evaluation or analysis is 27 disclosed under AS 09.25.455(b); or 28 (4) a custodian of the audit results. 29 (d) A person who conducts or participates in the preparation of an audit report 30 and who actually observed or participated in conditions or events being reviewed for 31 compliance may testify about those conditions or events but may not, in a proceeding
01 covered by (a) of this section, be compelled to testify about or produce documents 02 consisting of confidential self-evaluation and analysis. 03 (e) A person claiming the privilege described in this section has the burden of 04 establishing the applicability of the privilege. 05 (f) To facilitate identification, each document in an audit report that contains 06 confidential self-evaluation or analysis shall be labeled "AUDIT REPORT: 07 PRIVILEGED DOCUMENT." 08 (g) A government agency or its employees or agents may not, as a condition 09 of a permit, license, or approval issued under an occupational health and safety law, 10 require an owner or operator to waive the privilege available under this section. 11 (h) Except when the privilege is waived under AS 09.25.455(a) or disclosure 12 is made under AS 09.25.455(b)(3) or 09.25.475 or 09.25.480, neither a government 13 agency nor its employees or agents may review or otherwise use the part of an audit 14 report consisting of confidential self-evaluation or analysis during an inspection of a 15 regulated facility, operation, or property or an activity of a regulated facility, operation, 16 or property. 17 (i) This section may not be construed to 18 (1) prevent a government agency from issuing an emergency order, 19 seeking injunctive relief, independently obtaining relevant facts, conducting necessary 20 inspections, or taking other appropriate action regarding implementation and 21 enforcement of an applicable occupational health and safety law, except as otherwise 22 provided in AS 09.25.475; or 23 (2) authorize a privilege for uninterrupted or continuous occupational 24 health and safety audits. 25 (j) The department or municipality may, by regulation or ordinance, 26 respectively, allow the notice required under (b) of this section to be filed by facsimile 27 or other electronic means if the means ensures adequate proof of 28 (1) submittal of the notice by the owner or operator; and 29 (2) receipt by the department or municipality. 30 (k) There is no privilege under this section for documents or communications 31 in a criminal proceeding.
01 Sec. 09.25.455. Waiver and disclosure. (a) The privilege in AS 09.25.450 02 does not apply to the extent the privilege is expressly waived in writing by the owner 03 or operator who prepared the audit report or caused the report to be prepared. 04 (b) Disclosure of the part of an audit report or information consisting of 05 confidential self-evaluation or analysis does not waive the privilege established by 06 AS 09.25.450 if the disclosure is made 07 (1) to address or correct a matter raised by the occupational health and 08 safety audit and is made to 09 (A) a person employed by the owner or operator, including 10 temporary and contract employees; 11 (B) the owner's or operator's lawyer or the lawyer's 12 representative; 13 (C) an officer or director of the regulated facility, operation, or 14 property; 15 (D) a partner of the owner or operator; 16 (E) an independent contractor retained by the owner or operator; 17 or 18 (F) the principal of the independent contractor who conducted 19 an audit on the principal's behalf; 20 (2) under the terms of a confidentiality agreement between the owner 21 or operator who prepared the audit report or caused the audit report to be prepared and 22 (A) a partner or potential partner of the owner or operator of the 23 facility, operation, or property; 24 (B) a transferee or potential transferee of an interest in the 25 facility, operation, or property; 26 (C) a lender or potential lender for the facility, operation, or 27 property; 28 (D) a person engaged in the business of insuring, underwriting, 29 or indemnifying the facility, operation, or property; or 30 (E) a person who, along with the person who prepared the audit 31 report or caused the audit report to be prepared, also is an owner or operator
01 of part or all of the facility, operation, or property; or 02 (3) under a written claim of confidentiality to a government official or 03 agency by the owner or operator who prepared the audit report or who caused the audit 04 report to be prepared. 05 (c) Documents consisting of confidential self-evaluation and analysis that are 06 disclosed under (b)(3) of this section are required to be kept confidential and are not 07 subject to disclosure under AS 09.25.110 - 09.25.220. 08 (d) A party to a confidentiality agreement described in (b)(2) of this section 09 who violates the agreement is liable for damages caused by the violation and for other 10 penalties stipulated in the agreement. 11 Sec. 09.25.460. Nonprivileged materials. There is no privilege under 12 AS 09.25.450 for that part of an audit report that contains the following: 13 (1) a document, communication, datum, report, or other information 14 required by a government agency to be collected, developed, maintained, or reported 15 under an occupational health and safety law, under a permit issued under an 16 occupational health and safety law, as a requirement for obtaining, maintaining, or 17 renewing a license, as a requirement under a contract or lease with the state or a 18 municipality, or as a requirement under an administrative order or court order or 19 decree; 20 (2) information that a government agency obtains by observation, 21 sampling, or monitoring; 22 (3) information that a government agency obtains from a source that 23 was not involved in compiling, preparing, or conducting the occupational health and 24 safety audit report; 25 (4) a document, communication, datum, report, or other information 26 collected, developed, or maintained in the course of a regularly conducted business 27 activity or regular practice other than an occupational health and safety audit; 28 (5) a document, communication, datum, report, or other information 29 that is independent of the occupational health and safety audit, whether prepared or 30 existing before, during, or after the audit; and 31 (6) a document, communication, datum, report, or other information,
01 including an agreement or order between a government agency and an owner or 02 operator, regarding a compliance plan or strategy. 03 Sec. 09.25.465. Exception: disclosure required by court. (a) A court or 04 administrative hearing officer with jurisdiction may require disclosure of confidential 05 self-evaluation and analysis contained in an audit report in a civil or administrative 06 proceeding if the court or administrative hearing officer determines, after an in camera 07 review consistent with the appropriate rules of procedure, that the 08 (1) privilege is asserted for a criminal or fraudulent purpose; 09 (2) information for which the privilege is claimed is evidence of 10 substantial injury, or the imminent or present threat of substantial injury, to one or 11 more persons at the site audited or to persons, property, or the environment offsite or 12 is evidence of the causes and circumstances leading to such injury or the imminent or 13 present threat of such injury; 14 (3) audit report shows evidence of noncompliance with an occupational 15 health and safety law and appropriate efforts to achieve compliance with the law were 16 not promptly initiated and pursued with reasonable diligence after discovery of 17 noncompliance; 18 (4) audit report was prepared for the purpose of avoiding disclosure of 19 information required for an investigative, administrative, or judicial proceeding that, 20 at the time of the report's preparation, was imminent or in progress; or 21 (5) privilege would result in a miscarriage of justice or the denial of 22 a fair trial to the party challenging the privilege. 23 (b) A party seeking an in camera review as provided under (a) of this section 24 shall provide to the court or administrative hearing officer a factual basis adequate to 25 support a good faith belief by a reasonable person that the documents or 26 communications for which disclosure is sought are likely to reveal evidence to 27 establish that an exception in (a) of this section applies. 28 (c) A party seeking disclosure of confidential self-evaluation and analysis 29 during an in camera review under this section has the burden of proving that an 30 exception in (a) of this section applies. 31 Sec. 09.25.475. Voluntary disclosure; immunity. (a) Except as provided by
01 this section, an owner or operator who makes a voluntary disclosure of a violation of 02 an occupational health and safety law, or of circumstances, conditions, or occurrences 03 that constitute or may constitute such a violation, is immune from an administrative 04 or civil penalty for the violation disclosed, for a violation based on the facts disclosed, 05 and for a violation discovered because of the disclosure that was unknown to the 06 owner or operator making the disclosure. 07 (b) Immunity is not available under this section if the violation resulted in, or 08 poses or posed an imminent or present threat of, substantial injury to one or more 09 persons at the site audited or to persons, property, or the environment offsite. 10 (c) A disclosure is voluntary for the purposes of this section only if 11 (1) the disclosure is made promptly after knowledge of the information 12 disclosed is obtained by the owner or operator; 13 (2) the disclosure is made in writing by certified mail to the department 14 or a municipality with enforcement jurisdiction with regard to the violation disclosed; 15 (3) an investigation of the violation was not initiated or the violation 16 was not independently detected by the department or a municipality with enforcement 17 jurisdiction before the disclosure was made using certified mail; under this paragraph, 18 the department or municipality has the burden of proving that an investigation of the 19 violation was initiated or the violation was detected before receipt of the certified mail; 20 and 21 (4) the disclosure arises out of a voluntary occupational health and 22 safety audit. 23 (d) To qualify for immunity under this section, the owner or operator making 24 the disclosure must 25 (1) promptly initiate appropriate efforts to achieve compliance and 26 remediation and pursue those efforts with due diligence; 27 (2) promptly initiate appropriate efforts to discontinue, abate, or 28 mitigate any conditions or activities causing injury or likely to cause imminent injury 29 to one or more persons at the site audited or to person, property, or the environment 30 offsite; 31 (3) correct the violation within 90 days or enter into a compliance
01 agreement with the department or the municipality, as appropriate, that provides for 02 completion of corrective and remedial measures within a reasonable time; 03 (4) implement appropriate measures designed to prevent the recurrence 04 of the violation; and 05 (5) cooperate with the department or municipality, as appropriate, in 06 connection with an investigation of the issues identified in the disclosure; the 07 department or municipality may request that the owner or operator allow the 08 department or municipality to review, under a written claim of confidentiality as 09 described in AS 09.25.455(b)(3), the part of the audit report that describes the 10 implementation plan or tracking system developed to correct past noncompliance, 11 improve current compliance, or prevent future noncompliance. 12 (e) A disclosure is not voluntary for purposes of this section if it is a 13 disclosure to the department or municipality expressly required by an occupational 14 health and safety law, a permit, a license, or an enforcement order or decree. 15 (f) Immunity under this section for violation of an occupational health and 16 safety law is available only for a violation that is discovered as a result of information 17 or documents first produced or obtained during the time period specified in the notice 18 required under AS 09.25.450(b). 19 (g) During the period between receipt of the audit notice required under 20 AS 09.25.450(b) and the specified end date of the audit, the department or 21 municipality may not initiate an inspection, monitoring, or other investigative activity 22 concerning the audited facility, operation, or property based on the receipt of a notice 23 under AS 09.25.450. The department or municipality has the burden of proving that 24 an inspection, monitoring, or other investigative activity concerning the audited facility, 25 operation, or property initiated after receiving a notice under AS 09.25.450 was not 26 initiated based on receiving the notice. 27 (h) A violation that has been voluntarily disclosed and to which immunity 28 applies under this section shall be identified by the department or municipality in its 29 compliance history report as having been voluntarily disclosed. 30 (i) This section may not be construed to prevent the department or 31 municipality from
01 (1) seeking injunctive relief; or 02 (2) issuing an emergency order in a situation involving an imminent 03 and substantial danger to public health or welfare or the environment. 04 Sec. 09.25.480. Exceptions to immunity; mitigation. (a) There is no 05 immunity under AS 09.25.475 if a court or administrative hearing officer finds that 06 (1) the owner or operator claiming the immunity has 07 (A) intentionally, knowingly, or recklessly committed or 08 authorized the violation; 09 (B) within the 36 months preceding the violation, committed, 10 at the same facility or associated facilities located in the state, a pattern of 11 violations that are the same as or closely related to the violation for which the 12 immunity is sought; or 13 (C) not attempted to bring the facility, operation, or property 14 into compliance so as to constitute a pattern of disregard of occupational health 15 and safety laws; 16 (2) the violation was authorized or committed intentionally, knowingly, 17 or recklessly by a member of the owner's or operator's management and the owner's 18 or operator's policies contributed materially to the occurrence of the violation; or 19 (3) the owner or operator, after taking into account the cost of 20 completing corrective and remedial measures within a reasonable time and 21 implementing appropriate measures to prevent recurrence of the violation, realized 22 substantial economic savings in not complying with the requirement for which a 23 violation is charged; the exception to immunity in this paragraph applies only to that 24 portion of a penalty that reflects the economic savings of noncompliance after taking 25 into account the cost of completing the corrective, remedial, and preventive measures 26 necessary to qualify for immunity. 27 (b) There is no immunity under AS 09.25.475 from an administrative or civil 28 penalty for the violation of an administrative or court order or for violation of a term 29 or condition of an administrative or court order. 30 (c) An administrative or civil penalty that is imposed on an owner or operator 31 for violation of an occupational health and safety law when the owner or operator has
01 made a voluntary disclosure under AS 09.25.475(a) but is not granted immunity 02 because of (a) of this section may, to the extent appropriate and not prohibited by law, 03 be mitigated by 04 (1) the good faith actions of the owner or operator in disclosing the 05 violation; 06 (2) efforts by the owner or operator to conduct occupational health and 07 safety audits and to complete any resulting implementation plan or tracking system for 08 corrective and preventive action; 09 (3) remediation; 10 (4) cooperation with government officials investigating the disclosed 11 violation; 12 (5) the nature of the violation; and 13 (6) other relevant considerations. 14 Sec. 09.25.485. Relationship to other recognized privileges. AS 09.25.450 - 15 09.25.490 do not limit, waive, or abrogate the scope or nature of a statutory or 16 common law privilege, including the work product doctrine, the attorney-client 17 privilege, and any other privilege recognized by a court with appropriate authority in 18 this state. 19 Sec. 09.25.490. Definitions. (a) In AS 09.25.450 - 09.25.490, 20 (1) "audit report" means a report that includes each document and 21 communication, other than those set out in AS 09.25.460, produced from an 22 occupational health and safety audit; general components that may be contained in a 23 completed audit report include 24 (A) a report, prepared by an auditor, monitor, or similar person, 25 including the scope of the audit, the dates the audit began and ended, the 26 information gained in the audit, findings, conclusions, recommendations, 27 exhibits, and appendices; the types of exhibits and appendices that may be 28 contained in an audit report include supporting information that is collected or 29 developed for the primary purpose and in the course of an occupational health 30 and safety audit, including 31 (i) interviews with current or former employees;
01 (ii) field notes and records of observations; 02 (iii) findings, opinions, suggestions, conclusions, 03 guidance, notes, drafts, and memoranda; 04 (iv) legal analyses; 05 (v) drawings; 06 (vi) photographs; 07 (vii) laboratory analyses and other analytical data; 08 (viii) computer generated or electronically recorded 09 information; 10 (ix) maps, charts, graphs, and surveys; and 11 (x) other communications and documents associated with 12 an occupational health and safety audit; 13 (B) memoranda and documents analyzing all or a portion of the 14 materials described in (A) of this paragraph or discussing implementation 15 issues; and 16 (C) an implementation plan or tracking system to correct past 17 noncompliance, improve current compliance, or prevent future noncompliance; 18 (2) "confidential self-evaluation and analysis" means the part of an 19 audit report that consists of interviews with current or former employees conducted by 20 the auditor; field notes and records of observations made by the auditor; findings, 21 opinions, suggestions, conclusions, guidance, notes, drafts, and analyses performed by 22 the auditor; memoranda and documents that evaluate or analyze all or part of the 23 material contained in the audit report, including findings, conclusions, opinions, 24 recommendations made by the auditor, and an audit implementation plan or tracking 25 system to correct past noncompliance, improve current compliance, or prevent future 26 noncompliance with an occupational health and safety law; and that is 27 (A) a voluntary, confidential, critical, internal, and retrospective 28 review, self-evaluation, or analysis of conduct, practices, and occurrences and 29 their resulting consequences; and 30 (B) prepared and maintained with the expectation that it will be 31 kept confidential;
01 (3) "department" means the Department of Labor; 02 (4) "occupational health and safety audit" means a voluntary audit that 03 an owner or operator of a regulated facility, operation, or property conducts or causes 04 to be conducted, whether or not on a regular basis or in response to a particular event, 05 that is specifically designed and undertaken to assess compliance with occupational 06 health and safety laws or a permit, license, or approval issued under those laws, 07 including an assessment that is part of the owner's or operator's compliance 08 management system and that is a 09 (A) systematic, objective, and periodic review of the facility, 10 operation, or property related to meeting the requirements of occupational 11 health and safety laws or a permit, license, or approval issued under those laws; 12 or 13 (B) documented, systematic procedure or practice that reflects 14 the owner's or operator's due diligence in preventing, detecting, and correcting 15 violations of occupational health and safety laws or a permit, license, or 16 approval issued under those laws at the facility, operation, or property; 17 (5) "occupational health and safety law" means 18 (A) a federal or state occupational health and safety law 19 implemented by the department; or 20 (B) a rule, regulation, or municipal ordinance adopted in 21 conjunction with or to implement a law described by (A) of this paragraph; 22 (6) "operator" means a person or persons who direct, control, or 23 supervise all or part of a regulated facility, operation, or property; 24 (7) "owner" means a person or persons with a proprietary or possessory 25 interest in a regulated facility, operation, or property; 26 (8) "penalty" means an administrative or civil sanction imposed by the 27 state or a municipality to punish a person for a violation of a statute, rule, regulation, 28 or ordinance; the term does not include a technical or remedial provision ordered by 29 a government agency; 30 (9) "regulated facility, operation, or property" means a facility, 31 operation, or property that is regulated under an occupational health and safety law.
01 (b) To fully implement the privilege and immunity established under 02 AS 09.25.450 - 09.25.490, the term "occupational health and safety law" shall be 03 construed broadly. 04 (c) For purposes of this chapter, unless the context requires otherwise, a person 05 acts 06 (1) "intentionally" with respect to a result described by a provision of 07 law defining a violation when the person's conscious objective is to cause that result; 08 when intentionally causing a particular result is an element of a violation, that intent 09 need not be the person's only objective; 10 (2) "knowingly" with respect to conduct or to a circumstance described 11 by a provision of law defining a violation when the person is aware that the conduct 12 is of that nature or that the circumstance exists; when knowledge of the existence of 13 a particular fact is an element of a violation, that knowledge is established if a person 14 is aware of a substantial probability of its existence, unless the person actually believes 15 it does not exist; a person who is unaware of conduct or a circumstance of which the 16 person would have been aware had that person not been intoxicated acts knowingly 17 with respect to that conduct or circumstance; 18 (3) "recklessly" with respect to a result or to a circumstance described 19 by a provision of law defining a violation when the person is aware of and consciously 20 disregards a substantial and unjustifiable risk that the result will occur or that the 21 circumstance exists; the risk must be of such a nature and degree that disregard of it 22 constitutes a gross deviation from the standard of conduct that a reasonable person 23 would observe in the situation; a person who is unaware of a risk of which the person 24 would have been aware had that person not been intoxicated acts recklessly with 25 respect to the risk. 26 * Sec. 3. APPLICABILITY. The privilege and immunity created by AS 09.25.450 - 27 09.25.490, added by sec. 2 of this Act, apply to occupational health and safety audits that are 28 conducted on or after the effective date of this Act.