Legislature(1997 - 1998)
01/30/1997 01:37 PM Senate L&C
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
SB 41 ENVIRONMENTAL & HEALTH/SAFETY AUDITS
CHAIRMAN LEMAN called the Senate Labor and Commerce Committee
meeting to order at 1:37 p.m. and announced SB 41 to be up for
consideration and noted the proposed CS before them incorporating
a number of changes.
SENATOR MACKIE moved to adopt the work draft 299E 1/30/97 as the
CS. There were no objections and it was so ordered.
MS. ANNETTE KREITZER, Staff to the Senate Labor and Commerce
Committee, said they did extensive work with the Department of Law
and the Department of Environmental Conservation and achieved
consensus on many points.
Two major areas of concern with DEC, and possibly DOL, are: the
trigger to make immunity unavailable if a federally delegated
program requires imposition of a penalty for a violation; and the
definition of the term "commence" when it is used in conjunction
with commencing an audit. Both of these concerns could be worked
on in the next committee (Judiciary).
MS. KREITZER directed the committee's attention to the explanation
of changes to SB 41 that was before them. She noted that the
Department of Law changes restructured the bill so it flowed
smoother, was more consistent and much easier to understand.
Number 356
SENATOR MACKIE moved the intent on page 11, line 2 state that th
Department means either the Department of Environmental
Conservation, Department of Labor, or the Department of Health and
Social Services. There were no objections and the motion carried
as amendment #1.
Regarding the trigger to make the immunity available if a federally
delegated program requires imposition of a penalty for a violation,
CHAIRMAN LEMAN said, it was his intent to have the Judiciary
Committee consider this issue specifically. He said he didn't
intend that it be triggered just if the program requires an
imposition, but if we don't include it, it would jeopardize the
primacy of the State of Alaska in administering that program.
CHAIRMAN LEMAN also noted that throughout the CS the term for
giving notice is "by mail" and since we now have many electronic
forms of transmission, fax and e-mail, that are probably more
efficient, faster, and perhaps less costly, he thought they could
be incorporated into the bill as long as the items were receipted.
MS. JANICE ADAIR, Director, Division of Environmental Health, said
the CS was getting close from their perspective, although primacy
language was still a problem. One thing in particular was
overlooked on page 4, line 30 where it says "legal representative
of the owner or operator." That is a fairly broad phrase where
they thought the term "attorney" was the intent. They still have
concerns about the burden of proof, and she added, that she was
willing to continue to work on that.
Number 434
MR. DWIGHT PERKINS, Special Assistant, Department of Labor,
emphasized that they are also willing to work on SB 41 with the
sponsor. He provided the Committee with a letter from the U.S.
Department of Labor noting its concerns with privileges and
immunities relating to disclosure of certain self-audits. It says
that the privileges and immunities proposed in this bill would
significantly impair the credibility and effectiveness of Alaska's
OSHA enforcement program. It concluded, "Because an effective
enforcement program is a statutory mandate for all State plans,
enactment of such a provision by the State would seriously
undermine the continued provability of the Alaska OSHA program and
may result in a recommendation to the Assistant Secretary that
federal approval and funding of the Alaska program be withdrawn."
MR. PERKINS said they would continue working with staff and the
next committee of referral. They will also forward this draft back
to the U.S. Department of Labor.
On page 6, line 17 which says "a court with jurisdiction may
require disclosure of self-evaluation" they preferred the old
language used "a court or administrative hearing officer." Ms.
Steinberger, their Assistant Attorney General, he said, was
concerned that it would be very costly for State agencies to go to
a court for these kinds of things.
CHAIRMAN LEMAN asked Mr. Perkins what he meant by "less effective
than the federal program." He deferred to MS. STEINBERGER who
reviewed a federal statute referring to state jurisdiction of
plans. Under the conditions for a state approved plan it says our
enforcement has to be as effective as federal enforcement and we
also have to have the right of entry and inspection. She thought
that inspection included the right to conduct inspections and get
all the information. Having an audit privilege would not allow the
State to get all the information. Immunity would not allow the
State to be as effective enforcement-wise because you would not be
able to bring citations that federal OSHA would bring. Also, she
said, the trigger language only addresses immunity and this
privilege would jeopardize the program. So the trigger language
should be broadened to include both.
CHAIRMAN LEMAN said he would incorporate the trigger language in
the request they send with the bill to the Judiciary Committee. He
noted on page 4, line 12 it says this section may not be construed
to prevent the agency from doing these things, including
independently obtaining relevant facts and conducting necessary
inspections. An audit privilege and immunity doesn't and shouldn't
keep that from happening. MS. STEINBERGER responded that an
inspection would include all documents. She explained that there
are different levels of penalties and the burden of proof would be
on the State. This means we would have to go to court or a hearing
officer which would be very complex procedurally and we might not
even be able to get the documents after that. Federal OSHA could
get them with a simple request.
SENATOR MACKIE asked if the State couldn't get that information
independently just by conducting interviews. MS. STEINBERGER
replied that people are often afraid to speak against their
employer because they think there will be retaliation. Having an
actual document is very helpful. A willful can be either civil or
criminal; the criminal one would be if there was a death.
CHAIRMAN LEMAN asked her to request language from Mr. Terrill that
would help this legislation reach its goal of providing a safer
workplace and providing employers an opportunity to get some things
done without worrying about enforcement.
SENATOR MACKIE also asked her to pass on to the federal agent that
citizen legislators are trying to achieve a worthy goal and get
turned off with the threat of taking away our funding. MS.
STEINBERGER pointed out that the State Department of Labor has been
given a lot of discretion in interpreting congressional statute and
regulations, but a court of law would defer to the federal
interpretation.
TAPE 97-3, SIDE B
Number 590
SENATOR MACKIE asked if she had been directed to make the bill not
work or to find a way to make it work with their intent. MS.
STEINBERGER answered that she would like to have it work; and she
was concerned with the trigger language because it could take away
our 18E Certification which means that the State can still do
enforcement, but in cases where the State is not as effective, the
federal agency will come in. She explained that now Alaska has th
best certification out of 11 different types. "We have exclusive
jurisdiction, except for maritime, to do an OSHA inspection. This
has been delegated to us by the federal government. The least that
would happen is that we lose our 18E Certification and the feds
would do the inspections. The more drastic remedy would be to take
away our whole program," she said. She explained that of all the
state plans, none of them have anything like this legislation.
They may have an environmental one, but they do not have a health
and safety one. Texas does not have 18E Certification; they do not
do any enforcement. The federal government does all the
enforcement in Texas. They are not the same as us.
CHAIRMAN LEMAN restated he wanted the record to state that his
meaning of "effect" was in the dictionary as "having an expected or
intended effect, producing or designed to produce a desired effect"
and that he didn't see how the bill disallowed any of those things.
MS. STEINBERGER said she thought a court would defer to the federal
interpretation.
Number 546
MR. DWYER commented that he did not think the feds would take away
our funding. He thought we would end up with concurrent
jurisdiction, and under this legislation employers would be
subjected to two agencies.
Number 529
MARIE SANSONE, Assistant Attorney General, said she appreciated
working with Senator Leman's staff and the many changes made in the
bill are a good improvement. She said the reason they have worked
really hard on this bill is because many courts have said that
privileges are not to be created lightly because they're in
derogation of the search for the truth. This means when you are in
a court room, you swear to tell the whole truth and nothing, but
the truth. When someone can assert the privilege, they are not
going to tell the whole truth. A court, a jury, a hearing officer,
or even a legislative body, whenever this privilege is claimed,
will not be hearing the whole story about what happened. That is
why it is so important to make sure this bill is clear and will not
be abused. She thought they had made a lot of progress, but there
was more work to do.
Privileges are also important when talking about discovery or the
stage of a case where you are trying to learn about what happened
because it is generally thought that the more information you have
at that stage of the proceeding, the more likely you are to have a
settlement or a reasonable solution. There is no philosophical
opposition to the bill, at all. To create a privilege is truly an
extraordinary step and should be done to advance important public
policies and should be as narrow as possible in order to achieve
that. She thought a lot of progress had been made in that regard.
MS. SANSONE explained language in this bill that was retained
developed last year relating to the portion of the audit that will
be privileged which is the analytic or the evaluative material, but
not the underlying facts, was retained. Many of those provisions
that appear in that definition come from a federal court decision
called Rycold Chemicals 157FRD522, out of the Northern District
Court in Florida in 1984. She thought that was a very fair
approach. The criteria that are required were developed in the
context of a specific court case involving clean up of a
contaminated site. So the judge that created these criteria and
the parties had a chance to work out some of the kinks. This may
keep people from feeling that they are being forced into federal
court because there may be broader discovery in federal court and
not in State court.
They had meant the definition of an environmental audit to be a
little bit broader using the concept that what was privileged was
a very narrow part of the audit, but the audit itself might be
broad. She didn't think that was adequately communicated to the
staff, working on this draft.
Finally, MS. SANSONE, said that the concept for the audit privilege
and immunity bills first came up in Oregon about four years ago.
It came up when the Oregon legislature was creating a bill to make
the environmental penalties for environmental crimes very serious -
into felonies. As part of the compromise in the bill the industry
extracted this concept of an audit privilege and immunity in
exchange for having the much more severe penalties. Most of the
bills developed in the states from then on have been about
environmental law and based on environmental premises and problems
and the particular procedures that are used in that field. When
Texas came up with its bill, it was the first state to try to
attempt to bring in health and safety. They simply tried to graft
that on to a lot of previous bills that had all been environmental.
The OSHA procedures and practices are very different from what is
happening in the environmental arena. So some of the language that
is in the bill may not be appropriate to the way our State OSHA
does business. Some of the solutions are appropriate to DEC, but
they may not be the same concerns or solution that are appropriate
to the Department of Labor or the Department of Health and Social
Services.
Number 472
MR. JACK PHELPS, Executive Director, Alaska Forest Association
(AFA), supported the concept of environmental and safety self
audits embodied in SB 41. AFA believes environmental laws do not
exist to provide job security to bureaucrats and their purpose is
not to maintain a flow of federal dollars to the State of Alaska.
Their true purpose is to protect the environment and the true
purpose of safety laws is to protect people. Self audits promote
those purposes. It's the legislature's responsibility to ensure
that environmental and safety laws do not overreach these purposes
and become unnecessary impediments to economic development.
He expressed concern with dropping the liability clause for breach
of confidentiality because there is no incentive without it.
Number 426
MR. JAY FRANK, Director, Policy Analysis, Concerned Alaskans for
Resources and Environment, supported SB 41. He did not think it
would compromise the mission of the State agencies, but it requires
them to refocus.
MR. BARRY NOLL, Federal Occupational Safety and Health Act (OSHA)
representative, said there are separate federal/state jurisdictions
in Alaska. He is responsible for the maritime industries and the
State is responsible for the occupational safety and health work
that occurs on land. He noted that the State has a consultation
program which already does a lot of what is being mentioned in this
bill and yet it works within the framework of the existing OSHA
organization. He said the consultation work is free and he thought
this should be enhanced. He also said he had not had a chance to
see the letter from Mr. Terrill. He agreed with Mr. Dwyer that the
feds would most likely reduce the 18E Certification.
MR. NOLL also wondered if there was an intent to open the door to
third parties who could offer their audit services. He also
wondered about the 90 days for the employer to abate hazards that
have been identified. Now typically OSHA looks at 30 days, the
logic being to reduce the employees' exposure to the hazard.
Number 392
CHAIRMAN LEMAN answered that their intent is to make the
opportunity available for an owner to conduct his own audit or to
hire a third party to do it. He agreed that a lot of the workplace
safety items should be corrected a lot sooner than 90 days, but
there may be times it could take longer to complete something
because of the construction season or something like that.
SUSAN SCHRADER, Executive Director, Alaska Environmental Lobby,
acknowledged the efforts of the staff to work with the different
agencies involved. She said that current regulations are there in
response to problems that have occurred with industries that
pollute and put their employees at risk. These industries, through
the years, have had ample time to do self audits, and many have.
Those that have are now more competitive. This legislation, rather
than encouraging those companies that haven't, will simply make it
easier for them to continue to be irresponsible.
She said this is a bill of secrecy. It will keep information vital
to the public's health and safety from agency review and keep the
same information away from our legal system which the public
depends on to help remedy violations. It will limit the employees
right to know and limit the right to know of a property owner who
lives next door to a polluting industry.
She said that this bill is one of amnesty which allows industry to
conceal or condone non-compliance. She thought the supporters of
this bill make a very large assumption - if a self-audit reveals
non-compliance, that company will come forward. Past experience
would suggest that prompt compliance is not always the course of
action a company decides.
Immunity from civil and administrative penalties is simply bad
policy and effectively awards non-compliance. Finally, she said,
that the language in the bill is confusing and will promote
litigation.
CHAIRMAN LEMAN said her statements misrepresent this bill
egregiously in several major areas. Number one, he said, this bill
has nothing to do with protecting polluters. That is covered under
other law, regulation, and permits. This bill clearly specifies
that it is not privileged material that will continue to be
required of business. Regarding the right-to-know, there are other
elements in law that require the reporting of materials like the
community right-to-know ordinances, the local emergency planning
committees, and others in legislative form (SB 39 on placarding
with information that will be available by computer and modem).
The statement that immunity is bad public policy is not consistent
with what the departments are doing now.
CHAIRMAN LEMAN said regarding Texas, which has a lot more industry,
this law has not generated a lot of litigation.
Number 253
NANCY WELLER, Division of Medical Assistance, said she had provided
a letter from Commissioner Perdue outlining their concerns which
are all related to the Medicaid Program, a $325 million program
that funds health care for low income people. The functions are in
three different areas: licensing and certification of health
facilities, the auditing and utilization review, and the setting of
rates. They are concerned that this bill will have some unintended
consequences related to the Medicaid Program and feel this is not
the intent. They, therefore, they request removing references to
the Department of Health and Social Services from the CS.
Number 234
CHAIRMAN LEMAN asked if there was anyway short of removing
reference to the department that they could accomplish his
objectives. MS. WELLER replied that they could define occupational
health.
Number 210
SENATOR MACKIE asked if just a line saying this has no effect on
the Medicaid Program would work.
MIKE PAULEY, Staff to Senator Leman, said in the draft there were
no agencies specified. Then the Department of Health and Social
Services approached them with their concerns. He said they had not
been able to determine the linkage between their bill and the
effects on the Medicaid Program that were just stated.
CHAIRMAN LEMAN stated that he did not intend this legislation to
adversely affect the Medicaid Program and thought they could work
on specific language to express that.
SENATOR MACKIE said that he wanted the State funding concerns in
Mr. Terrill's letter reviewed so they would for sure not be
impacted. He then moved to pass CSSB 41 (am) from Committee with
individual recommendations. There were no objections and it was so
ordered.
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