Legislature(1997 - 1998)
02/24/1997 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
SENATE JUDICIARY COMMITTEE
February 24, 1997
1:40 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chair
Senator Drue Pearce, Vice-chair
Senator Mike Miller
Senator Sean Parnell
Senator Johnny Ellis
MEMBERS ABSENT
None
COMMITTEE CALENDAR
SENATE BILL NO. 41
"An Act relating to environmental audits and health and safety
audits to determine compliance with certain laws, permits, and
regulations."
HEARD AND HELD
PREVIOUS SENATE COMMITTEE ACTION
SB 41 - See Senate Labor & Commerce Committee minutes dated
1/23/97, 1/28/97, and 1/30/97.
WITNESS REGISTER
Senator Loren Leman
Alaska State Capitol
Juneau, Alaska 99801-1182
POSITION STATEMENT: Sponsor of SB 41.
Randy Ruedrich, Chairman
Alaska Chapter
International Assn. of Drilling Contractors
Doyon Drilling
101 West Benson Blvd. Ste. 503
Anchorage, AK 99503
POSITION STATEMENT: Supports SB 41.
Chris Ross
Alaska Safety Advisory Committee
3701 Eagle, #305
Anchorage, AK 99510
POSITION STATEMENT: Opposed to SB 41 as written.
Janice Adair
Department of Environmental Conservation
555 Cordova St.
Anchorage, AK 99503
POSITION STATEMENT: Supports SB 41 if amended.
Steve Trosper
1255 Old Seward Highway
Anchorage, AK 99604
POSITION STATEMENT: Opposed to SB 41 as written.
Wayne Coleman
1612 Simeonoff
Kodiak, AK 99615
POSITION STATEMENT: Opposed to SB 41 as written.
Nancy Weller
Medicaid Services Unit
Division of Public Health
Dept. of Health and Social Services
PO Box 110610
Juneau, AK 99811-0610
POSITION STATEMENT: Commented on SB 41.
Marie Sansone
Assistant Attorney General
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Commented on SB 41.
Sue Schrader
Alaska Environmental Lobby
P.O. Box 22151
Juneau, AK 99802
POSITION STATEMENT: Opposed to SB 41 as written.
ACTION NARRATIVE
TAPE 97-11, SIDE A
Number 000
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 1:40 p.m. All members were present. The committee took
up SB 41.
SB 41 ENVIRONMENTAL & HEALTH/SAFETY AUDITS
SENATOR LOREN LEMAN , sponsor of SB 41, gave the following overview.
SB 41 is similar to SB 199, which passed the Senate last year and
was in the House Finance Committee at the time of adjournment.
Since then, he has worked with the Departments of Law,
Environmental Conservation (DEC) and Labor to craft a new version.
The Department of Labor disagrees with the concept of self-audits,
and is concerned it will lose primacy in workplace safety matters.
Most criticism of the bill is aimed at implementation, not the
concept of self-auditing, privilege and immunity. He asked the
committee to apply the concept to both environmental audits and
workplace safety audits to enable businesses to come into higher
compliance with both environmental and workplace laws.
SB 41 creates two incentives to encourage businesses and other
regulated entities to correct non-compliance with environmental or
occupational health and safety regulations. The first incentive is
limited immunity. Entities that conduct voluntary self-audits will
be immune from civil and administrative penalties for violations
discovered, provided the entity takes corrective action to prevent
a recurrence. Immunity is not available for substantial off-site
damage or on-site injury and several other minor conditions must be
met. The second incentive is qualified privilege. The self-
critical analysis contained in an audit report will be considered
privileged and not admissible as evidence, or subject to discovery,
in civil or administrative proceedings. This provision recognizes
that an audit report is a self-incriminating document. It
discovers problems and identifies what personnel or management
deficiencies are responsible, and recommends corrective action.
Number 114
SENATOR LEMAN continued. Studies show that many businesses opt not
to conduct audits out of fear that the resulting reports will be
used by agencies or hostile third parties for prosecution purposes.
He discussed the results of a Price Waterhouse survey in 1995 in
which 75 percent of 369 companies reported conducting self-audits;
two-thirds of those conducting environmental self-audits would
expand such programs if penalties were eliminated for identified
and corrected problems. Among the companies not conducting audits,
20 percent fear the information will be used against them and 25
percent report attempts by outside parties to collect audit data.
SENATOR LEMAN explained the immunity benefit can be overcome if
asserted for a fraudulent purpose, or if the regulated entity has
failed to take required actions to correct areas of non-compliance.
SB 41 will be of greatest benefit to small businesses. Twenty
other states have passed some form of self-audit legislation, and
eight others are debating similar legislation.
Number 156
SENATOR LEMAN noted proposed amendments have been submitted by DEC
and the Department of Law, and industry members.
CHAIRMAN TAYLOR asked Senator Leman to highlight the differences
between SB 41 and SB 199. SENATOR LEMAN replied most of the
changes were editorial to simplify the language and reduce
confusion. SB 199 included health and safety audits but that
provision was removed in the House Labor and Commerce Committee
last year. The changes to SB 41 have been iterations toward
positions that the Department of Law and DEC are more comfortable
with.
Number 208
SENATOR PEARCE discussed the Department of Law's assertion that
OSHA will revoke Alaska's 18E certification if SB 41 passes and
asked whether that has happened in any other state with similar
legislation. SENATOR LEMAN replied it has not because the other
states did not include health and safety self-auditing in their
legislation, with the exception of Texas. Texas, however, does not
have 18E certification regarding its OSHA program therefore, Alaska
would be blazing new ground.
SENATOR LEMAN remarked he does not believe information received by
the Department of Labor from federal agencies is conclusive
regarding the loss of state primacy if SB 41 is enacted. He added
the Department of Health and Social Services (DHSS) has requested
any references to it be eliminated from SB 41 so that self-audits
do not apply to health facilities.
Number 264
CHAIRMAN TAYLOR noted he has watched many small hospitals waste as
much as one month per year doing audits for Medicare, Medicaid, the
Veterans' Administration, DHSS, and other certifying boards, all of
whom audit using a similar checklist, but cannot share any of the
information with each other. He believed eliminating any of those
audits will reduce wasted medical resources and money.
Number 286
RANDY RUEDRICH, Chairman of the Alaska Chapter of the Internationa
Association of Drilling Contractors (IEDC), stated the self-audit
concept, as embodied in SB 41, deserves favorable consideration
from the Legislature this year. The Senate Labor and Commerce
Committee version is a constructive step in regulatory reform
however the IEDC is concerned the bill may not cover an independent
contractor's disclosure of an audit of its own operations at a
shared facility; the new self-audit privilege should be made
applicable to these disclosures. In Alaska, owners of drilling
rigs have improved their health and safety, and environmental,
records for nearly three decades. IEDC believes SB 41 will allow
the industry to concentrate on the reduction of the remaining
deficiencies in the system, rather than focussing on the legal
nuances of protecting audits and restricting the sharing of
information with other entities in the workplace. IEDC has
submitted four amendments for the committee's consideration.
CHAIRMAN TAYLOR asked Mr. Ruedrich to review written testimony
submitted to the committee by the Alaska Forum for Environmental
Responsibility and respond at a later time.
Number 381
CHRIS ROSS testified on behalf of the Alaska Safety Advisory
Council. The Council specifically opposes the inclusion of the
Department of Labor in SB 41, otherwise it has no position on the
bill. The Council's concerns are twofold: first, providing
employer immunity from audit discovery by the Department of Labor
presumes there is a significant deterrent to self-audits in current
law. That is a fallacy for several reasons. Companies with good
safety systems routinely perform self-audits, companies without
will be unlikely to conduct them in the future as a result of SB
41. SB 41 provides immunity only from the Department of Labor's
ability to fine employers. There is no immunity from criminal, and
much civil, litigation. Since the actual penalties, or threat of
penalties, from the Department of Labor are small compared to the
cost of litigation, there is little incentive to start performing
audits for the sake of immunity. The sole reason for audits is to
perform a measurement of existing safety systems. If there is no
effective safety system in place, there is nothing to audit and
nowhere in SB 41 is there an incentive for employers to develop
effective safety systems. The second main issue deals with state
funding of AKOSH. The Department of Labor has received a letter
from OSHA's Acting Assistant Secretary indicating OSHA would assume
a lead role in any investigation where immunity was invoked, if SB
41 is enacted. In general, employers prefer to deal with a state
agency as opposed to a federal agency. If OSHA was called in on
several occasions, it is conceivable it would assume control of the
state compliance program and the state would lose 18E
certification. The Council sees no benefit in the passage of SB 41
and believes it would cause overall harm to the existing safety and
health system managed by the Department of Labor.
Number 416
AL DWYER , Director for Labor Standards and Safety, Department of
Labor, summarized written testimony submitted to committee members.
Alaskan businesses have nothing to gain by the passage of CSSB
41(L&C): it will undermine the Alaska Occupational Safety and
Health Enforcement Program (AKOSH) by limiting the department's
access to employer safety audits and by obstructing the department
in its mission to penalize employers who disregard safety rules.
While the intention of SB 41 is to enhance the safety of the
worker, in reality it will tie the hands of the agency charged with
protecting the worker from the few dishonest, unscrupulous
employers who would hide behind the protection this bill provides.
Allowing immunity from citations, and making safety audits
privileged documents, could encourage the unscrupulous employer to
disregard safety rules and would result in the government revoking
Alaska's hard won 18E certification. OSHA could then conduct
safety inspections in Alaska whenever an employer asserts the
privilege or claims immunity. OSHA and the federal courts will not
apply the audit privilege or immunity provisions in CSSB 41(L&C);
consequently, Alaskan businesses will gain nothing from this bill.
MR. DWYER explained the federal government monitored the Department
of Labor on a quarterly basis for many years before granting 18E
certification to the State. To turn over exclusive inspection
authority to the State, OSHA had to be sure the State followed
federal procedures for enforcement, citations, consultations, and
the rest. Alaska was the third state to receive 18E certification.
Since then, 23 states and two territories have state enforcement
plans. If CSSB 41(L&C) passes, employers will have to deal with
two enforcement agencies until OSHA decides to take over the
program. If the Alaska Department of Labor has to deal with a
privilege case, it will have to bring the case before a judge to
have an evidentiary hearing, which is both time consuming and
costly. Alaska would lose federal funding and both public and
private sector enforcement. Currently, the federal program only
oversees maritime safety issues.
Number 470
CHAIRMAN TAYLOR asked why less than half of the states have 18E
certification, if it is so important. MR. DWYER responded it is
very difficult to meet the match requirements. The consultation
match is 90 percent federal, and 10 percent state. The enforcement
match is 50/50. California eliminated their state program, but
took it back one or two years later, at a tremendous cost, because
employers did not like federal administration of the program.
CHAIRMAN TAYLOR questioned what difference it would make to an
Alaskan business whether its neighbor enforces a federal law or
someone from New Mexico, and why it took so long for Alaska to
prove to OSHA it was capable of administering the program. MR.
DWYER said Alaska had to prove that it could enforce the law
blindfolded and that it would do a better job in consultation
because the state is familiar with requirements here. The
Department of Labor settles most of its cases before they become
major confrontations and charges lower penalties than OSHA.
Businesses deal with an Alaska review board.
CHAIRMAN TAYLOR asked how the programs in the states without 18E
certification are designed. MR. DWYER explained a lot of those
states have 7C1 which covers consultation and training programs;
enforcement remains with OSHA.
Number 503
CHAIRMAN TAYLOR asked if the enforcement standards used in those
states are the federal standards. MR. DWYER answered those states
without enforcement programs do follow federal standards.
CHAIRMAN TAYLOR noted if Alaska chooses not to have its own
program, it would be bound by the federal standards, which in many
instances are lower than the standards currently required by the
Alaska Department of Labor. MR. DWYER replied the state has only
a few rules that are more stringent than the federal standards;
living space is one.
CHAIRMAN TAYLOR stated that would benefit a union that wants to
bust an employer and increase living space - that same living space
requirement is not applied in Wyoming or any other rural camp
situation outside of Alaska. MR. DWYER said most of the people
benefitting from the living space requirement are non-union and
most union workers have a steward to watch out for their welfare.
CHAIRMAN TAYLOR emphasized his concern is that we are setting up a
different level of enforcement in Alaska. He commented DEC
enforces significantly different standards than the federal
standards, plus we are taking precious state dollars to do the work
for the federal agency. He questioned whether losing 18E
certification is bad if the state will end up enforcing basically
the same standards.
MR. DWYER stated the reason the state sought 18E certification was
to involve Alaskans in the policy-making side. When imposing
penalties on businesses, the Alaska Department of Labor takes a lot
of things into consideration that Washington, D.C. does not.
Number 530
JANICE ADAIR, Director of the Division of Environmental Health in
DEC, testified via teleconference. DEC has been working
cooperatively with Senator Leman and his staff on this bill. DEC
believes some areas need correction and has submitted proposed
amendments. SB 41 could impact DEC's primacy for the Clean Air Act
and Safe Drinking Water Act. Primacy of those programs allows for
some flexibility in state implementation not allowed under the
federal law. Implementation of the Clean Air Act is paid for by
permitholders. The federal presumptive minimum is significantly
higher than the amount charged by DEC, so if SB 41 is enacted,
those fees could increase. Under the Safe Drinking Water Act, DEC
is able to issue waivers for monitoring requirements that EPA is
unable to issue, as well as other things. Also, when Congress
reauthorized the Safe Drinking Water Act in 1996, it required
primacy as a condition for access to the state revolving loan fund,
which provides construction funds for primarily urban drinking
water systems. The state's share of that fund, in 1998, will be
about $27 million. If DEC loses primacy for that program, it will
lose access to those funds. The Underground Injection Control
Program, operated by the Alaska Oil and Gas Conservation
Commission, could also be impacted by SB 41 as written. DEC has
worked hard on SB 41 to provide businesses with the protection they
feel is necessary to conduct self-audits, but needs to protect
primacy and other aspects of environmental protection in the State.
CHAIRMAN TAYLOR asked Ms. Adair if DEC will support SB 41 if its
proposed amendments are adopted. MS. ADAIR responded she is not
familiar with all of the amendments that have been submitted, but
if the final version of SB 41 addresses DEC's concerns, it will.
She noted DEC agrees provisions regarding the Departments of Labor
and Health and Social Services should not be included in the bill.
Number 564
TOBY STEINBERGER , Assistant Attorney General, testified about the
possible negative impacts passage of SB 41 will have on the AKOSH
program. Congress passed the OSHA Act in the 1970s and gave the
U.S. Department of Labor the authority to conduct workplace safety
inspections, collect evidence, and fine employers who violate the
law. That Act gave the U.S. Secretary of Labor the authority to
authorize state programs, if state plans are as effective as
federal plans. SB 41 would render AKOSH less effective in
inspections and enforcement because it could no longer obtain
evidence and businesses could claim immunity. OSHA would not be
limited by those statutory provisions so would be more effective.
There are several levels of certification, AKOSH has the highest
(18E) which gives it exclusive jurisdiction to go into workplaces
OSHA cannot.
MS. STEINBERGER continued. If Alaska loses 18E certification,
concurrent jurisdiction with OSHA will occur. Alaskan employers
will not gain because they will lose immunities offered by the
State, and OSHA will not recognize privilege. In addition, Alaska
employers will no longer be dealing with the Alaska review board;
hearings will be held before an administrative law judge.
Currently, an employer can appeal a decision made by the Alaska
review board to the Superior Court. Under SB 41, the employer will
have to go before an administrative law judge from Seattle, then
appeal the decision to the OSHA Review Commission in Washington,
D.C., and then to the federal courts. There would be no advantage
to the Alaskan employer.
TAPE 97-11, SIDE B
MS. STEINBERGER noted a similar bill was introduced before Congress
several years ago. The Acting Secretary of Labor, Mr. Deere,
testified against the bill. AKOSH believes the U.S. Department of
Labor will come down hard on the first state to enact such
legislation. Of the 26 states with approved plans, none have a law
similar to SB 41. Many states have adopted laws pertaining to
environmental self-auditing, but none have included health and
safety, except for Texas. Texas does not have a state OSHA plan so
its law does not affect federal enforcement.
Number 557
STEVE TROSPER, Safety Director for Teamsters Local 959, testified
via teleconference. Teamsters Local 959 is opposed to SB 41 for
several reasons. Teamsters Local 959 is concerned about changes to
its current relationship with management regarding health and
safety in the workplace. That relationship is based on the
position that worker safety should be taken out of the arena of
confrontation and worked on cooperatively. To that end, it has
implemented a policy of joint safety and health inspections, where
union representatives conduct safety/health inspections with
company safety representatives. It has been an effective tool for
identifying hazards and establishing abatement periods. One
advantage is that employers do not get fined for hazards that are
uncovered and corrected. Occasionally, when employers are
reluctant to comply with corrections, union representatives go to
a regulatory agency to get issues addressed in a timely manner.
That tool would be removed by SB 41 and, if an inspection was part
of an audit, the immunities and privilege provisions might apply to
union representatives, as well as the employer, as part of the
audit team. Union representatives would have to establish
themselves as a separate entity which goes against the cooperative
arrangement they have been trying to develop over the last few
years.
MR. TROSPER said the Teamsters' response from AKOSH has been very
good: AKOSH is cooperative, an excellent source of information, and
not quick to impose fines when people are trying to work
cooperatively. OSHA might be more likely to impose fines. OSHA
considers violations by national companies as repeat offenses if a
violation previously occurred in another state, and fines up to ten
times as much for a second offense. The Teamsters believe SB 41
will negatively affect labor relations and suggests, as an
alternative, encouraging small businesses to use AKOSH's voluntary
inspection service.
Number 491
CHAIRMAN TAYLOR asked if the Van Been case was ever resolved. MS.
STEINBERGER responded it was.
CHAIRMAN TAYLOR asked if a union is participating in self-audits
with an employer, whether the union might be placed in a position
of liability with the employer.
MR. TROSPER replied the Teamsters' concern is not with liability,
but with its ability to maintain some control over the abatement
period once a hazard has been recognized. If a voluntary audit was
conducted and no corrections were made, the Teamsters, under the
privileges and immunities clause in SB 41, could not go to AKOSH
and request an inspection based on a recognized hazard, or a more
reasonable abatement period. CHAIRMAN TAYLOR noted the union
representative would be better off not participating in audits, so
that the representative could turn the employer in for uncorrected
violations. MR. TROSPER agreed.
Number 439
CHAIRMAN TAYLOR again questioned whether a liability issue exists
for participants. MR. TROSPER answered his organization has an
agreement with the employer that establishes the employer's
responsibility for safety in the workplace. The Teamsters do not
assume any liability for failing to uncover a hazard or for
misrecognizing a hazard. He was unsure whether the Van Been
decision was broad enough to cover third party audits.
CHAIRMAN TAYLOR commented that if an employee died as a result of
a recognized hazard that had not yet been corrected, the employee's
family could most likely sue members of the auditing team,
including the union representative. MR. TROSPER thought Chairman
Taylor was correct, and noted an employer, under SB 41, may believe
he/she has immunity which will not exist at the federal level. He
stated Mr. Ross believes the Van Been decision is specific to
immunity for insurance inspectors.
WAYNE COLEMAN , representing the Kodiak Island Borough on the Prince
William Sound Regional Citizens Advisory Council (RCAC) Board of
Directors, testified via teleconference. RCAC supports the
underlying goal of SB 41 and supports a cooperative approach to
encourage regulated entities to find and correct environmental
problems, however that goal can be met while still protecting the
public's right-to-know and the government's responsibilities to
enforce. SB 41 goes too far by granting blanket immunity from
legitimate litigation for self-disclosed offenses; blanket immunity
does not serve the public interest. RCAC suggests rewriting SB 41
to prohibit agencies from initiating civil or administrative
litigation based solely on an environmental audit report, similar
to EPA's policy. That policy ensures fairness to the regulated
entity, and provides appropriate protections to the public.
Number 356
NANCY WELLER , Division of Medical Assistance, DHSS, explained DHSS
has two primary concerns with its inclusion in SB 41: certification
and licensing of health facilities; and programs of surveillance,
utilization review, provider fraud, and rate setting. DHSS
licenses health facilities under State licensing laws and
simultaneously certifies health facilities to receive Medicaid and
Medicare payments. The facility surveyors review physical plans of
facilities, and patient care and financial records to determine
whether care is provided in a safe way and appropriately
documented. The entities are encouraged to do complete program
reviews and self-audits. If routine access to documentation is
prevented, potentially life-threatening situations could go
undetected and federally required verification that Medicaid
services were correctly provided and billed could not occur. In
addition, a provider could claim an audit privilege and prevent the
division from imposing sanctions related to program abuse. Federal
regulations require recoupment of Medicaid overpayments made to a
provider. The State would be unable to collect funds it is
required to return to the federal government within 60 days of
identification. The Medicaid Rate Advisory Commission sets rates
for health facilities and is concerned that the Commission's
ability to set rates could be impacted by an inability to secure
facility records. Lack of access to these documents could prevent
rate compliance with the federal Borne amendment to ensure that
payments relate to economically and efficiently operated
facilities. DHSS believes SB 41 needs to be amended to delete
references to it in order to protect the significant public
investment in the Medicaid program and guarantee the health of
Alaskans who receive care in health facilities.
Number 317
CHAIRMAN TAYLOR stated the Attorney General's opinion on behalf of
DHSS cited several bothersome examples - one a case of a young
woman who was scalded to death in a bath - and a case where five of
eight residents in one nursing home facility were found underweight
from malnutrition, with one close to death. He asked who conducted
the audits on those facilities during the few years prior to the
discovery of the inadequate conditions. MS. WELLER replied the
malnutrition situation went undetected by the facility until DHSS
surveyors made their annual licensing visit, and in the case of the
scalding, the water temperature mixer was malfunctioning. The
problem had been identified but corrective action was not taken.
CHAIRMAN TAYLOR asked why no employee checked the temperature
before immersing the patient. MS. WELLER was unsure. CHAIRMAN
TAYLOR commented DHSS's audit procedure is to take action when a
patient is near death or dead. MS. WELLER responded in those
specific situations, had SB 41 been enacted, the facilities could
have conducted self-audits and kept the information from state
surveyors. Had the surveyors been unable to review patient
nutrition records, the problem may have gone uncorrected. CHAIRMAN
TAYLOR asked if the facilities were run by the State. MS. WELLER
replied the facilities are privately owned.
Number 265
SENATOR PEARCE asked if SB 41 provides immunity only when a problem
has been identified and corrected, which would not apply to the
cases cited. SENATOR LEMAN answered that is correct; SB 41 grants
limited immunity and privilege, one of the conditions being
correction of identified problems within a reasonable time limit.
SENATOR PEARCE asked if DHSS can continue to review records and
reports but not use that information as evidence in court. SENATOR
LEMAN clarified the entity would submit a report to DHSS of
identified deficiencies and a compliance schedule.
CHAIRMAN TAYLOR added DHSS could not take action to fine or
penalize the entity when a report is voluntarily filed because the
immunity provision immunizes the entity from the enforcement tools
that might be assessed.
SENATOR PEARCE remarked no immunity is available for violations
that are knowingly committed or that result from recklessness; both
examples cited by the Attorney General could be considered reckless
therefore would not be immune.
SENATOR PARNELL noted on page 7, line 11, the bill reads immunity
is not available if the violation results in substantial injury of
one or more persons at the site audited, which would cover the
cases cited.
Number 200
SENATOR PEARCE commented in trying to take care of problems the
departments have that are reasonable, the examples cited by the
Department of Law created a paper chase.
MARIE SANSONE , Assistant Attorney General, testified primarily on
the provisions in SB 41 related to compliance with environmental
regulations. The Department of Law has provided Senator Leman
with a number of amendments, its concerns are as follows:
1. Remove references to DHSS and the Department of Labor.
2. Tighten the term "health and safety," used throughout SB
41, to narrow the scope of the bill and exclude municipal
ordinances.
3. Change the trigger for the privilege and immunity
exception section. To trigger exceptions, a request must be
made before a judge. If an administrative hearing is
occurring for a permit issuance or revocation, for example, SB
41 requires the administrative proceeding to stop, and a court
to rule on the exceptions. This system could be costly and
result in delays.
4. Extend the exceptions for substantial injury to people on-
site or off-site, or to property or the environment off-site,
to include circumstances where there is imminent or present
threat of serious or substantial injuries.
5. Change the burden of proof on privilege when determining
whether an exception applies as that burden is insurmountable
without access to privileged information. DOL proposes that
the person seeking disclosure go forward, make a prima facie
case that the exception applies, at which point the burden
would shift back to the person trying to protect the
information.
6. SB 41 requires self-auditing entities to correct
violations. DOL feels an additional condition should be that
entities with violations causing injury, or risk of injury,
should be required to take necessary steps to abate the
violation and mitigate the damages immediately.
7. The Labor and Commerce Committee substitute omitted an
exception for tariff cases which rely on environmental, health
and safety audits to establish proper tariffs.
8. DOL proposed an amendment relating to federal trigger
language which would have required the CEO of the federal
agency involved to notify the commissioner of the relevant
department, in writing, that a state program, as a result of
the self-audit privilege, was inconsistent with federal
requirements.
9. The definition of "audit" needs to be corrected, as well
as other overall corrections for the purpose of clarification.
SUE SCHRADER , Executive Director of the Alaskan Environmental Lobby
(AEL), testified. AEL supports the goal of SB 41 but does not
believe it will encourage businesses to self-audit, correct
problems, and protect workers. Regulated industries have had ample
opportunity to self-audit. Those businesses that have done so have
found it to be economically and competitively advantageous.
Unfortunately many companies do not take responsibility for their
actions, and SB 41 will make it easier for those companies to
continue non-compliance. AEL believes SB 41 will keep information
vital to public health and safety hidden from review by the
agencies we depend on to enforce health and safety laws. It will
also keep that same information hidden from the legal system we
rely on to remedy violations of these laws. SB 41 will have a
chilling effect on the employee's ability to speak the truth about
what is going on in the workplace when they are faced with reprisal
by their employer. The concerned worker who speaks out will find
himself without the ability to access the documents needed to
defend him/herself against retaliation from employers. SB 41 is a
bill of amnesty and will allow industries to conceal or condone
non-compliance. The sponsor is making the assumption that if a
self-audit reveals non-compliance, that entity will come forth and
correct the underlying problem. AEL suggests reviewing EPA's policy
for self-policing, and crafting simple legislation to provide clear
incentives through leniency, definite time windows, and no
privilege provision.
Number 97-12, SIDE A
Number 034
CHAIRMAN TAYLOR stated Ms. Schrader is advocating that corporate
polluters be required to take responsibility for their actions, and
asked her whether that should be applied to everyone. MS. SCHRADER
replied it should.
CHAIRMAN TAYLOR commented he has asked for AEL's membership list
many times over the last 10-12 years but was always told the list
is not public.
SENATOR PEARCE commented that previous speakers have expressed
concern about SB 41's impact on worker disclosure of workplace
violations and asked Senator Leman if the bill contains a provision
to prevent workers from disclosing violations.
SENATOR LEMAN responded there is nothing in the bill to prevent
workers from disclosing uncorrected violations, and it would be a
very unwise business policy to try to hide uncorrected violations.
A company may conduct a self-audit and not file it with an agency,
but SB 41 will not provide immunity or privilege. It is not to a
business's advantage to hide problems that could cause damage or
injury.
Number 165
CHAIRMAN TAYLOR asked Mr. Ruedrich to respond to the Alaska Forum's
letter to the committee, and specifically to Ms. Ott's allegation
about Doyon Drilling. MR. RUEDRICH remarked none of the aspects of
whistleblowing protection will be modified by SB 41. Individuals
will be free to proceed to take any actions available today. With
respect to corporate responsibility and accountability being
converted to secrecy and diminished, the limited immunity and
privilege provisions would be given to entities after deficiencies
are disclosed and problems corrected. There is a higher likelihood
problems will be corrected in order to get immunity and privilege.
SB 41 proposes to improve the workplace for the employee, employer,
and the people of the State.
Number 195
CHAIRMAN TAYLOR asked Senator Leman to provide the committee with
a package of the proposed amendments he supports at Wednesday's
meeting, and have the other proposed amendments prepared in a
packet as well.
SENATOR PEARCE asked Senator Leman to discuss whether SB 41 will
jeopardize Alaska's 18E certification. SENATOR LEMAN said he
believes the threat of revocation is real, but it does not need to
be. OSHA is responding to requests from, and corroborating with,
Alaska's Department of Labor, but they are misrepresenting what
needs to be done. As long as the state law is as effective as the
federal requirements, we should not be in jeopardy of losing
primacy, which he does not advocate. Alaska can demonstrate,
especially with passage of SB 41, it can be as effective as the
federal program.
CHAIRMAN TAYLOR repeated his intent to have the committee review
packets of amendments on SB 41 and pass the bill out as amended,
rather than have a committee substitute drafted at this time. He
adjourned the meeting at 3:27 p.m.
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