Protective Privilege

Article excerpt

Like many bills with relatively simple purposes, Sen. Billy Mickle's Senate Bill 679 creating the Environmental, Health and Safety Audit Privilege Act, raises some complex questions.

It is a very important issue for businesses and corporations operating in Oklahoma. Efforts to pass such legislation have been unsuccessful in recent years leaving Oklahoma at a disadvantage with surrounding states that have enacted it. Past opposition has come from environmental groups.

Mickle, D-Durant, an attorney and Senate majority floor leader, was successful in getting the bill through the Senate Judiciary Committee last week by a vote of nine to one, with the title crippled. He called it a "work in progress," indicating further study of its provisions, more changes to be made and the possibility of it going to a conference committee. The original intent of those sponsoring the legislation was to encourage voluntary compliance with environmental and occupational health and safety laws, similar to the Texas law. It accomplishes this by providing incentives for companies to conduct self-audits to determine if there are violations of these laws and to implement corrective action. Probably in no other area is voluntary compliance more necessary than in the vast and massive body of state and federal environmental rules and regulations. James R. Barnett, president of the Environmental Federation of Oklahoma points out there simply are not enough enforcement personnel in the state and federal governments to enforce all the laws, rules and regulations without it. He believes the conduct of voluntary audits of their operations by companies should be encouraged and supported by the state. Key features of the legislation is the granting of evidentiary privilege for certain information gathered in a voluntary self- audit process and providing immunity from administrative and civil sanctions by regulatory agencies for violations uncovered and voluntarily disclosed as a result of the audit. Mickle told the committee his bill is substantially different from the one two years ago. That bill was authored in the Senate by Sen. Paul Muegge, D-Tonkawa, who refused to bring his own bill up for consideration in his own committee. He has consulted with environmental and business groups to work out the differences, Mickle said. In addition, most of the recommendations of the State Department of Environmental Quality either have been or will be included in the measure. Some believe the Committee Substitute for SB 679 would apply only to the DEQ because of its definition of regulated facility, but other language implies differently. Such a limitation certainly could divide or lessen support for the legislation. There are a number of state agencies that have environmental and occupational health and safety regulatory authority that should be included. Mark Coleman, DEQ director, points out his agency, through its rules, already has a program that provides immunity from civil penalties under the circumstances delineated in the legislation. It is one of the longest standing immunity programs in the nation. It was developed by a committee of the Oklahoma Bar Association, and was the model for the Federal Environmental Protection Agency's voluntary audit immunity policy. …