Mother Earth’s Guardian Angel or Corporate Greed’s Satanic Shield?

The War over SB 1003 (Environmental Audit Immunity

Opinion is so divided about SB 1003, which would shield internal corporate environmental, health and safety audits from public or court view, that combatants can’t even agree on its name.

Backers say it would entice chemical and energy industries to make safety and stringent environmental protection core corporate values. They call it an “environmental or health and safety law”.

Foes say it rewards corporate polluters who violate health and safety laws by dodging responsibility or even public disclosure.

While its official name is the “Environmental, Health and Safety Audit Privilege Act, critics call it the “Pollution Secrecy Act” or “Right to Know Nothing Bill”.

It sailed through the Senate with little notice March 14 by a 36-7 margin, with 5 senators excused, despite the act specifically excluding from the Oklahoma Open Records Act not just audits, but any documents used as exhibits or appendices or photographs—even ones not collected as audit components. Also secret would be communications “associated with an environmental or health and safety audit” (without defining “associated”), and even documents not marked as “Privileged.”

In fact, it jeopardizes public officials or employees who release documents not marked privileged if they “knew or had reason to know” the documents were secret. Those who violate the new law would face criminal penalties of up to six months in jail or a $500 fine—the same fine but six months less jail time than if they violated the Open Records Act [51 OS 24A .17(A)].

The rules of the state Penal Code would apply in cases under SB 1003 but don’t apply to the Open Records Act.

Although almost each of the bill’s 21 pages restricts the Open Records Act as it would otherwise apply to covered documents, it still specifically warns, “No audit report or any associated information or records shall be subject to the [Oklahoma Open Records Act]. All records collected pursuant to this act shall be deemed confidential.” [Engrossed version SB 1003, p. 8, lines 12-15. The entire bill is available at www.oksenate.gov using the Advanced Bill Search feature for this legislative session.]

What a choice for public officials facing an ORA request for material involving any environmental, health and safety documents which might be in any way related to a self-audit—even if not so marked. If they grant the request and are wrong the document(s) are releasable, they face a $500 fine and six month’s jail time with severe limits on their defenses. If they incorrectly deny the request they face the same fine, twice as much jail time, but perhaps more leniency in defending themselves.

Result--lots of taxpayer dollars will be spent on lawyers trying to sort out the conflicts.

The director of the Oklahoma Chapter of the Sierra Club has a very direct warning:

“People need to focus on the entire bill name--‘Public Health and safety’ is probably what should have ALL Oklahomans terrified. We know there will be a flood of lawsuits against the State of Oklahoma the day the law goes into effect,” Johnson Grimm-Bridgwater wrote us.

While he’s been battling the concept with his over 4,000 very active members for years and beaten versions back in the Legislature three times, the bill was introduced quietly and slid through quickly at first.     

 But interest exploded after Kelly Bostian, the outstanding Tulsa World Outdoors Writer, added environmental coverage to his portfolio. His front page story Wednesday, carried the next day in The Oklahoman, stirred up a hornet’s nest while the Sierra Club and other groups had ramped up their efforts..

That should spark great interest when the House Energy and Natural Resources Committee considers SB 1003 at 1:30 p.m. Tuesday in Room 432A of the State Capitol. If the opposition persuade the committee to not act or vote down the bill, it is almost certainly dead for this session.

It could come back next year, but if so it might be more subtle about the Open Records Act. Few candidates want to deal with seeming to try hiding things important to voters (like impacts to their health and safety) during an election year.

Even worse, they’d quake at the attack ads during the OU and OSU games vs. four Texas teams each. Big 12 football schedules aren’t set yet but more than enough games will hit before the Nov. 3 General Election—all jammed with political Ad-Bomb blasts able to drain all the mottled vile hues from a Klingon’s face.

That’s because the Oklahoma bill is in many ways almost a carbon copy of a statute from Texas (pushed by Energy and Environment Secretary Ken Wagner, an Oklahoman who most recently worked in Texas).

Sick or dead senior citizens look bad on TV and the images are there.

Examining just one plant operating under that Texas law in Woodville, a town of 2,500 an hour north of Beaumont, the Texas Observer reported Jan. 3 that in 2014 it was emitting ten times the amount of dangerous smoke and gasses allowed by its permit.

But Texas Commission on Environmental Quality regulators did nothing because the audit was covered by privilege and immunity. It only recently reached a deal agreeing to soon cut emissions by 96% from the 2014 level.

However, one 57-year-old grandmother of six living in her dream house (4,000 square feet, pool and basketball court) already has given up. She told the Observer that when the plant restarted before the deal, “the smoke smelled real bad and was filling up my whole house,” so thick that it blocked out the sun.

She’s selling: “I’m getting out of here if I can. I can’t keep dealing with this.”

What was the company’s penalty for all that? Due to the immunity law, nothing.

Another of its plants caused worse havoc in April 2017 in Port Arthur, where a massive fire broke out and smoldered for two months.

Lone Star Legal Aid attorney Amy Dinn, representing the historically black neighborhood most directly affected said children swooped in to rescue droves of their elderly parents suffering respiratory problems from the pall of smoke. Even so one died before her daughter reached her.

But Dinn said TEQ heard the case in March and decided said the blaze caused only moderate damage. The fine was $15,000—1.96% of the maximum $765,000 possible under its fine schedule and just 9% of the minimum fine schedule figure of $165,000.

“A slap on the wrist. Or a slap on the fingernail, I don’t even know,” Dinn’s Legal Aid colleague Colin Cox told the Observer.

Of course, many details will never be known because of the Texas secrecy law now being pushed here.

Grimm-Bridgwater told us the Oklahoma Bill is worse because its Open Records Act exemptions are so broad:

“It circumvents long-established norms regarding discovery [of evidence in legal cases] and public right to know.

 “We know in Texas, small farm towns and ag lands are often at the bad end of this law. Towns get poisoned for years, and the state doesn’t lift a finger, so the citizens stand up. But thanks to the Texas law, they walk away without any answers and without knowing what exactly was going on and why.”

In a recent letter to Senators shortly before they passed the bill he added, “Since when have Oklahomans been in such a rush to be like Texas?”

That line seems made for a 15-second spot for an OU or OSU game spot involving any team from south of the Red River.

The bill also has strong supporters.

A version first introduced in 1995 session of the legislature promised “limited protection of [self] audit findings and of fair treatment of those who report audit findings to regulatory agencies.” It doesn’t mention the Open Records Act and its scope is far narrower. It ran just nine pages compared to 21 for the current measure, and there was way more space between lines then).

The American Legislative Exchange Council (ALEC) introduced a more restrictive proposed bill for all states in 1996, which it modified and reaffirmed in 2013 and 2017. ALEC focuses research on state law proposals supporting “limited government, free markets and federalism”.

In explained, “Listen to any news broadcast…and it would be nearly impossible to not come away concerned or even fearful of imminent environmental disaster.

“The reality of the situation, however, is that it is an amazing time to be living in the U.S. and environmental quality has hardly ever been better than it is today. Sadly this story—easily one of the most significant and remarkable in human history—is hardly ever told.”

The model bill would help because it “is designed to give industry greater incentive to comply with environmental laws.”

A federal EPA report last updated Feb.7 lists 30 states as having some kind of law granting self-audit breaks: only privilege from disclosure in five states; only full or limited immunity in four, and some version of both in the remaining 21 [“State Audit Privilege and Immunity Laws and Self Disclosure Laws and Policies” at https://www.epa.gov/compliance ].

But Grimm-Bridgwater, citing a 1999 study by the National Conference of State Legislatures, said there was no evidence early in the process that the laws worked as intended [“Audit Privilege Laws: the right to know nothing”,  Richard Dahl, Environmental Health Perspectives, Vol. 107, No. 10, Oct. 1999; pp. A510-513] while real-world evidence such as the Texas incidents showed it did not.

Only one thing’s sure: No matter how this bill fares at the Capitol, the fight’s just begun.   

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