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PAG LIN
1 1 SUBCHAPTER I
1 2 Section 1. NEW SECTION. 88.0A TITLE.
1 3 This chapter shall be known and may be cited as the
1 4 "Occupational Safety and Health Inspections and Audit Act".
1 5 SUBCHAPTER III
1 6 SAFETY AUDIT PRIVILEGE AND IMMUNITY
1 7 Sec. 2. NEW SECTION. 88.31 DEFINITIONS.
1 8 As used in this subchapter, unless the context otherwise
1 9 requires:
1 10 1. "Commissioner" means the same as defined in section
1 11 88.3.
1 12 2. "Employee" means the same as defined in section 88.3.
1 13 3. "Employer" means the same as defined in section 88.3.
1 14 4. "Inquiring party" means any party appearing before a
1 15 court or a presiding officer in an administrative proceeding
1 16 seeking to review or obtain an in camera review of a safety
1 17 audit report.
1 18 5. "Privilege" means the protections provided in regard to
1 19 a safety audit report as provided in this subchapter.
1 20 6. "Safety audit" means a voluntary evaluation of any
1 21 factory, plant, establishment, construction site, or other
1 22 area, workplace, or environment where work is performed by an
1 23 employee of an employer, of an activity or operation at the
1 24 business when the activity or operation is regulated under
1 25 state or federal occupational safety and health laws, rules,
1 26 or variance conditions, conducted by an employer, an employee
1 27 of the employer, or an independent contractor retained by the
1 28 employer, that is designed to identify historical or current
1 29 noncompliance with state and federal occupational safety and
1 30 health standards, laws, rules, or variance conditions,
1 31 discover hazards, and remedy noncompliance or improve
1 32 compliance with occupational safety and health laws.
1 33 7. "Safety audit report" means a document or set of
1 34 documents generated and developed for the primary purpose and
1 35 in the course of or as a result of conducting a safety audit.
2 1 A "safety audit report" includes supporting information that
2 2 may include, but is not limited to, the report document
2 3 itself, observations, samples, analytical results, exhibits,
2 4 findings, opinions, suggestions, recommendations, conclusions,
2 5 drafts, memoranda, drawings, photographs, computer-generated
2 6 or electronically recorded information, maps, charts, graphs,
2 7 surveys, implementation plans, interviews, discussions,
2 8 correspondence, and communications related to the safety
2 9 audit. A "safety audit report" may include any of the
2 10 following components:
2 11 a. An executive summary prepared by the person conducting
2 12 the safety audit, which may include the scope of the safety
2 13 audit, the information gained in the safety audit,
2 14 conclusions, recommendations, exhibits, and appendices.
2 15 b. Memoranda and documents analyzing portions or all of
2 16 the report and discussing implementation issues.
2 17 c. An implementation plan which addresses correcting past
2 18 noncompliance, improving current compliance, or preventing
2 19 future noncompliance.
2 20 d. Periodic updates documenting progress in completing the
2 21 implementation plan.
2 22 Sec. 3. NEW SECTION. 88.32 PRIVILEGE.
2 23 1. Material included in a safety audit report generated
2 24 during a safety audit conducted on or after July 1, 2004, is
2 25 privileged and confidential and is not discoverable or
2 26 admissible as evidence in any civil or administrative
2 27 proceeding, except as otherwise provided in this subchapter.
2 28 The safety audit report shall be labeled "SAFETY AUDIT REPORT:
2 29 PRIVILEGED DOCUMENT". Failure to label each document within
2 30 the report does not constitute a waiver of the safety audit
2 31 privilege or create a presumption that the privilege does or
2 32 does not apply.
2 33 2. A person shall not be compelled to testify in regard to
2 34 or produce a document included in a safety audit report in any
2 35 of the following circumstances:
3 1 a. If the testimony or document discloses any component
3 2 listed in section 88.31, subsection 7, that was made as part
3 3 of the preparation of a safety audit report and that is
3 4 addressed in a privileged part of a safety audit report.
3 5 b. If the person is any of the following:
3 6 (1) A person who conducted any portion of the safety audit
3 7 but did not personally observe the physical events of a safety
3 8 violation.
3 9 (2) A person to whom the results of the safety audit
3 10 report are disclosed under section 88.33, subsection 2.
3 11 (3) A custodian of the safety audit report.
3 12 3. A person who conducts or participates in the
3 13 preparation of a safety audit report and who has observed
3 14 physical events of a safety violation may testify about those
3 15 events but shall not be compelled to testify about or produce
3 16 documents related to the preparation of or any privileged part
3 17 of a safety audit or any component listed in section 88.31,
3 18 subsection 7.
3 19 4. An employee of a state agency or other governmental
3 20 employee shall not request, review, or otherwise use a safety
3 21 audit report during an agency inspection of a regulated
3 22 facility or operation, or an activity of a regulated facility
3 23 or operation.
3 24 5. A party asserting the privilege under this section has
3 25 the burden of establishing the applicability of the privilege.
3 26 6. The privilege provided in this section is in addition
3 27 to the confidentiality requirements applicable to educational
3 28 and informational programs under section 88.16.
3 29 Sec. 4. NEW SECTION. 88.33 WAIVER OF PRIVILEGE –
3 30 DISCLOSURE.
3 31 1. The privilege described in section 88.32 shall not
3 32 apply to the extent that the privilege is expressly waived in
3 33 writing by the employer who prepared the safety audit report
3 34 or caused the report to be prepared.
3 35 2. Disclosure of a safety audit report or any other
4 1 information generated by a safety audit does not waive the
4 2 privilege established in section 88.32 if the disclosure meets
4 3 any of the following criteria:
4 4 a. The disclosure is made to address or correct a matter
4 5 raised by the safety audit and the disclosure is made to any
4 6 of the following:
4 7 (1) A person employed by the employer, including temporary
4 8 and contract employees.
4 9 (2) A legal representative of the employer.
4 10 (3) An officer or director of the regulated business or a
4 11 partner of the employer.
4 12 (4) An independent contractor retained by the employer.
4 13 b. The disclosure is made under the terms of a
4 14 confidentiality agreement between any person and the audited
4 15 employer.
4 16 3. A party to a confidentiality agreement described in
4 17 subsection 2, paragraph "b", who violates that agreement is
4 18 liable for damages caused by the disclosure and for any other
4 19 penalties stipulated in the confidentiality agreement.
4 20 4. Information that is disclosed under subsection 2,
4 21 paragraph "b", is confidential and is not subject to
4 22 disclosure under chapter 22. A governmental entity,
4 23 governmental employee, or governmental official who discloses
4 24 information in violation of this subsection is subject to the
4 25 penalty provided in section 22.6.
4 26 5. The protections provided by federal or state law shall
4 27 be afforded to individuals who disclose information to law
4 28 enforcement authorities.
4 29 6. The provisions of this chapter shall not abrogate the
4 30 protections provided by federal and state law regarding
4 31 confidentiality and trade secrets.
4 32 Sec. 5. NEW SECTION. 88.34 REQUIRED DISCLOSURE.
4 33 1. A court or a presiding officer in an administrative
4 34 hearing may require disclosure of a portion of a safety audit
4 35 report in a civil or administrative proceeding if the court or
5 1 presiding officer affirmatively determines, after an in camera
5 2 review, that any of the following exists:
5 3 a. The privilege is asserted for a fraudulent purpose.
5 4 b. The portion of the safety audit report is not subject
5 5 to the privilege under section 88.35.
5 6 c. The portion of the safety audit report shows evidence
5 7 of noncompliance with a state or federal occupational safety
5 8 and health standard or other law, rule, or variance condition
5 9 and appropriate efforts to achieve compliance with the
5 10 standard or other law, rule, or variance condition were not
5 11 promptly initiated and pursued with reasonable diligence after
5 12 discovery of noncompliance.
5 13 d. The portion of the safety audit report shows clear and
5 14 convincing evidence of substantial actual personal injury,
5 15 which information is not otherwise available.
5 16 e. The portion of the safety audit report shows a clear
5 17 and present danger to the public health or safety.
5 18 2. A party seeking disclosure under this section has the
5 19 burden of proving that subsection 1 applies.
5 20 3. A decision of a presiding officer in an administrative
5 21 hearing under subsection 1 may be directly appealed to the
5 22 district court without disclosure of the safety audit report
5 23 to any person unless so ordered by the court.
5 24 4. A determination of a court under this section is
5 25 subject to interlocutory appeal to an appropriate appellate
5 26 court.
5 27 5. If a court finds that a person claiming privilege under
5 28 this subchapter intentionally claimed the privilege for
5 29 material not privileged as provided in section 88.35, the
5 30 person is guilty of a serious misdemeanor punishable by a fine
5 31 not to exceed one thousand dollars.
5 32 6. Privilege provided in this subchapter does not apply if
5 33 the employer has been found in a civil or administrative
5 34 proceeding to have committed serious violations in this state
5 35 that constitute a pattern of continuous or repeated violations
6 1 of state or federal occupational safety and health laws,
6 2 administrative rules, or variance conditions, that were due to
6 3 separate and distinct events giving rise to the violations
6 4 within the three-year period prior to the date of disclosure.
6 5 Sec. 6. NEW SECTION. 88.35 MATERIALS NOT PRIVILEGED.
6 6 1. The privilege described in this subchapter does not
6 7 apply to any of the following:
6 8 a. A document, communication, datum, report, or other
6 9 information the commissioner is required to collect, develop,
6 10 retain, or report under a state or federal occupational safety
6 11 and health law, rule, or variance condition.
6 12 b. Information obtained by observation, sampling, or
6 13 monitoring by the commissioner or the commissioner's
6 14 authorized designee.
6 15 c. Information obtained from a source not involved in the
6 16 preparation of the safety audit report.
6 17 2. This section does not limit the right of a person to
6 18 agree to conduct a safety audit and disclose a safety audit
6 19 report.
6 20 Sec. 7. NEW SECTION. 88.36 CRIMINAL PROCEEDINGS –
6 21 REVIEW OF PRIVILEGED DOCUMENTS.
6 22 1. The privileges created in this subchapter shall not
6 23 apply to criminal investigations or proceedings. A safety
6 24 audit report, supporting documents, and testimony relating
6 25 thereto may be obtained by a prosecutor's subpoena pursuant to
6 26 the rules of criminal procedure. If a safety audit report is
6 27 obtained, reviewed, or used in a criminal investigation or
6 28 proceeding, the administrative and civil evidentiary privilege
6 29 established in this subchapter is not waived or made
6 30 inapplicable for any purpose other than for the criminal
6 31 investigation or proceeding.
6 32 2. Notwithstanding the privilege established in this
6 33 subchapter, the commissioner may review information in a
6 34 safety audit report, but such review does not waive or make
6 35 the administrative and civil evidentiary privilege
7 1 inapplicable to the report. The commissioner shall not adopt
7 2 a rule or impose a condition that circumvents the purpose of
7 3 this subchapter.
7 4 3. If information is required to be made available to the
7 5 public by operation of a specific state or federal law, rule,
7 6 or variance condition, the commissioner shall notify the
7 7 person claiming the privilege of the potential for public
7 8 disclosure prior to obtaining such information under
7 9 subsection 1 or 2.
7 10 4. If privileged information is disclosed under subsection
7 11 2 or 3, on the motion of a party, a court or the presiding
7 12 officer in an administrative hearing shall suppress evidence
7 13 offered in any civil or administrative proceeding that arises
7 14 or is derived from review, disclosure, or use of information
7 15 obtained under this section if the review, disclosure, or use
7 16 is not authorized under section 88.35. A party having
7 17 received information under subsection 2 or 3 has the burden of
7 18 proving that the evidence offered did not arise and was not
7 19 derived from the review of privileged information.
7 20 Sec. 8. NEW SECTION. 88.37 VOLUNTARY DISCLOSURE OF
7 21 SAFETY VIOLATION – IMMUNITY.
7 22 1. An employer is eligible for immunity under this section
7 23 from the time the commissioner receives official notification
7 24 from the employer of a scheduled safety audit. Once
7 25 notification is given to the commissioner, a safety audit
7 26 shall be completed within a reasonable time not to exceed six
7 27 months unless an extension is approved by the commissioner
7 28 based on reasonable grounds. An employer is immune from any
7 29 administrative or civil penalty associated with the
7 30 information disclosed if the employer makes a prompt voluntary
7 31 disclosure to the commissioner regarding an occupational
7 32 safety and health violation that is discovered through the
7 33 safety audit. The employer's actions in disclosing
7 34 information create a rebuttable presumption that the
7 35 disclosure is voluntary by meeting the criteria provided in
8 1 subsection 2 at the time of disclosure. To rebut the
8 2 presumption that a disclosure is voluntary, the commissioner
8 3 or other party has the burden of proving that the disclosure
8 4 was not voluntary. Immunity is not provided if the violations
8 5 of state or federal occupational safety and health law, rule,
8 6 or variance condition are intentional or if the violations of
8 7 state or federal law, rule, or variance condition resulted in
8 8 substantial actual injury or imminent and substantial risk of
8 9 injury to an employee.
8 10 2. The disclosure of information is voluntary if all of
8 11 the following circumstances exist:
8 12 a. The disclosure arises out of a safety audit and relates
8 13 to privileged information as provided in section 88.32.
8 14 b. The person making the disclosure uses reasonable
8 15 efforts to pursue compliance and to correct the noncompliance
8 16 within a reasonable period of time after completion of the
8 17 safety audit in accordance with a remediation schedule
8 18 submitted to and approved by the commissioner. If evidence
8 19 shows that the noncompliance is due to the failure to obtain a
8 20 variance, reasonable effort may be demonstrated by the
8 21 submittal of a complete variance application within a
8 22 reasonable time. Disclosure of information required to be
8 23 reported by state or federal law, rule, or variance condition
8 24 is not considered to be voluntary disclosure and the immunity
8 25 provisions in this section are not applicable.
8 26 c. Occupational safety and health violations are
8 27 identified in a safety audit report and disclosed to the
8 28 commissioner before there is notice of a citizen suit or a
8 29 legal complaint by a third party.
8 30 d. Occupational safety and health violations are
8 31 identified in a safety audit report and disclosed to the
8 32 commissioner before the violations are reported by any person
8 33 not involved in conducting the safety audit or to whom the
8 34 audit report was disclosed.
8 35 3. If an employer has not provided the commissioner with
9 1 notification of a scheduled safety audit prior to performing
9 2 the audit, a disclosure of information is voluntary if the
9 3 occupational safety and health violations are identified in a
9 4 safety audit report and disclosed by certified mail to the
9 5 commissioner prior to the commissioner's commencement of an
9 6 investigation.
9 7 4. If a person is required to make a disclosure relating
9 8 to a specific issue under a specific variance condition or
9 9 under an order issued by the commissioner, the disclosure is
9 10 not voluntary with respect to that issue.
9 11 5. Except as provided in this section, this section does
9 12 not impair the authority of the commissioner to require a
9 13 technical or remedial action or to order injunctive relief.
9 14 6. Upon application to the commissioner, the time period
9 15 within which the disclosed violation is corrected under
9 16 subsection 2 may be extended if it is not practical to correct
9 17 the noncompliance within the reasonable period of time
9 18 initially approved by the commissioner. The commissioner
9 19 shall not unreasonably withhold granting an extension. If the
9 20 commissioner denies an extension, the commissioner shall
9 21 provide the requesting party with a written explanation of the
9 22 reasons for the denial. A request for de novo review of the
9 23 commissioner's decision may be made to the appropriate court.
9 24 7. Immunity provided under this section from
9 25 administrative or civil penalties does not apply under any of
9 26 the following circumstances:
9 27 a. If an employer has been found in a civil or
9 28 administrative proceeding to have committed serious violations
9 29 in this state that constitute a pattern of continuous or
9 30 repeated violations of occupational safety and health laws,
9 31 administrative rules, and variance conditions and that were
9 32 due to separate and distinct events giving rise to the
9 33 violations within the three-year period prior to the date of
9 34 disclosure.
9 35 b. If a violation of an occupational safety and health
10 1 law, administrative rule, variance condition, settlement
10 2 agreement, or order on consent, final order, or judicial order
10 3 results in a substantial economic benefit which gives the
10 4 violator a clear advantage over its business competitors.
10 5 8. In cases where the conditions of a voluntary disclosure
10 6 are not met but a good faith effort was made to voluntarily
10 7 disclose and resolve a violation detected in a safety audit,
10 8 the state regulatory authorities shall consider the nature and
10 9 extent of any good faith effort in deciding the appropriate
10 10 enforcement response and shall consider reducing any
10 11 administrative or civil penalties based on mitigating factors
10 12 showing that one or more of the conditions for voluntary
10 13 disclosure have been met.
10 14 9. The immunity provided by this section does not abrogate
10 15 the responsibility of a person as provided by applicable law
10 16 to report a violation, correct the violation, conduct
10 17 necessary remediation, or respond to third-party actions.
10 18 This chapter shall not be construed to confer immunity from
10 19 liability in any private civil action.
10 20 10. Information required by rule to be submitted to the
10 21 commissioner as part of a disclosure made pursuant to this
10 22 section is not privileged information.
10 23 Sec. 9. NEW SECTION. 88.38 OTHER PRIVILEGES NOT
10 24 AFFECTED.
10 25 This subchapter does not limit, waive, or abrogate the
10 26 scope or nature of any statutory or common-law privilege,
10 27 including the work product doctrine and the attorney-client
10 28 privilege.
10 29 Sec. 10. NEW SECTION. 88.39 SAFETY AUDITOR TRAINING
10 30 PROGRAM.
10 31 A training program for, and standards for certification of,
10 32 safety auditors shall be developed and administered by the
10 33 commissioner. The program shall provide training on the
10 34 proper conduct of a safety audit; local, state, and federal
10 35 environmental ordinances, rules, and laws that apply to
11 1 businesses in this state; and the safety audit laws in this
11 2 state. The program shall be made available to small and large
11 3 business owners and operators, consulting engineers,
11 4 regulatory personnel, and citizens through the community
11 5 college system. A fee may be assessed for participation in
11 6 the program. Upon completion of the training program, program
11 7 participants may elect to be tested by the commissioner for
11 8 certification as a safety auditor for the purposes of this
11 9 subchapter.
11 10 Sec. 11. NEW SECTION. 88.40 SUMMARY.
11 11 On or before December 1 of each year, the commissioner
11 12 shall make available a summary of the number of safety audit
11 13 notices received, the violations, and the remediation status
11 14 of the violations reported pursuant to this subchapter during
11 15 the preceding fiscal year.
11 16 Sec. 12. NEW SECTION. 88.41 RULEMAKING.
11 17 The commissioner shall adopt rules pursuant to chapter 17A
11 18 necessary to administer this subchapter.
11 19 Sec. 13. NEW SECTION. 88.42 COSTS.
11 20 The necessary costs incurred by the commissioner under this
11 21 subchapter shall be funded from appropriations made to the
11 22 commissioner from the general fund of the state.
11 23 Sec. 14. CODIFICATION. The Code editor shall divide the
11 24 provisions of chapter 88, Code 2003 and Code Supplement 2003,
11 25 into subchapters consistent with this Act in Code 2005, and is
11 26 directed to change references from chapter to subchapter as
11 27 necessary.
11 28 EXPLANATION
11 29 This bill relates to the occupational safety and health
11 30 provisions of the Code by establishing provisions granting
11 31 privilege and immunity protections to an employer that
11 32 conducts a safety audit that meets certain criteria.
11 33 The bill provides that a safety audit is a voluntary
11 34 evaluation of a business or of an activity or operation at the
11 35 business when the activity or operation is regulated under
12 1 state or federal occupational safety and health laws, rules,
12 2 or variance conditions. The audit is conducted by an
12 3 employer, an employee, or an independent contractor, and is
12 4 designed to identify historical or current noncompliance with
12 5 occupational safety and health laws, rules, ordinances, or
12 6 variance conditions; discover hazards; and remedy
12 7 noncompliance or improve compliance with occupational safety
12 8 and health laws. Once notification is given to the
12 9 commissioner, the audit must be completed within a reasonable
12 10 time not to exceed six months.
12 11 Material included in a safety audit report and generated
12 12 during the audit is privileged and confidential and is not
12 13 discoverable or admissible as evidence in any civil or
12 14 administrative proceeding. The bill provides circumstances
12 15 under which certain persons shall not be compelled to testify
12 16 about or produce a document related to a safety audit. The
12 17 privilege may be waived and circumstances are provided under
12 18 which information is not privileged.
12 19 Disclosure of a portion of an audit may be required by a
12 20 court or presiding officer in a civil or administrative
12 21 proceeding. The bill provides an appeal process. If a court
12 22 finds that a person claiming privilege intentionally claimed
12 23 the privilege for material that is not entitled to be
12 24 privileged, the person is guilty of a serious misdemeanor
12 25 punishable by a fine not to exceed $1,000. Privilege does not
12 26 apply if an employer has been found in a civil or
12 27 administrative proceeding to have committed serious violations
12 28 in this state that constitute a pattern of continuous or
12 29 repeated violations.
12 30 Privilege for safety audits does not apply to criminal
12 31 proceedings; however, if an audit report is obtained,
12 32 reviewed, or used in a criminal investigation or proceeding,
12 33 or reviewed by the commissioner, the administrative and civil
12 34 evidentiary privilege is not waived or made inapplicable.
12 35 The bill provides that an employer is eligible for immunity
13 1 from the time the commissioner receives official notification
13 2 from the employer of a scheduled safety audit. An employer is
13 3 immune from any administrative or civil penalty associated
13 4 with the information disclosed if the employer makes a prompt
13 5 voluntary disclosure to the commissioner regarding the
13 6 violation discovered. The bill provides for the circumstances
13 7 under which disclosure is considered voluntary, and provides
13 8 that immunity does not apply if the violations are intentional
13 9 or if the violations resulted in substantial actual injury or
13 10 imminent and substantial risk of injury to an employee.
13 11 Immunity also does not apply if an employer is found to have
13 12 committed serious violations that constitute a pattern of
13 13 continuous or repeated violations or if a violation results in
13 14 a substantial economic benefit which gives the violator a
13 15 clear advantage over its business competitors.
13 16 The bill requires the commissioner to develop and
13 17 administer a training program and standards for certification
13 18 of safety auditors, and to annually make available a summary
13 19 of the number of safety audit notices received, the
13 20 violations, and the remediation status of the violations
13 21 reported during the preceding fiscal year.
13 22 LSB 5325SV 80
13 23 kh/sh/8
Text: SF02205 Text: SF02207 Text: SF02200 - SF02299 Text: SF Index Bills and Amendments: General Index Bill History: General Index
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