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Bill would let some companies keep pollution info secret

[MIKE SIMONS/Tulsa World file]
[MIKE SIMONS/Tulsa World file]

Conservation groups are taking aim at the Oklahoma Environmental, Health and Safety Audit Privilege Act as a poison pill that favors industry over those who seek to protect Oklahoma’s environment.

But Secretary of Energy and Environment Ken Wagner said the intention behind Senate Bill 1003, which passed 36-7 in the Senate and is now in the House Energy and Natural Resources Committee, will help, not hinder, environmental interests.

David Page, a longtime Tulsa environmental attorney, does not share the secretary’s view of the bill.

“It’s the most comprehensive act I’ve ever seen that will protect people who have caused pollution. They will be able to hide information that is typically is available to the people impacted to protect themselves and their property,” he said.

At the crux of the issue is the creation of “privileged” status for reports created by entities that self-audit or hire contractors to conduct environmental compliance audits of their facilities. Those audit records would be sealed and not available publicly via an Oklahoma Open Records Act request or for court proceedings. Anyone releasing the information, including public officials, could be subject to penalties.

Opponents argue that this would open the door to bad actors that might pollute and then conceal the impacts, or the causes of those impacts, from the public.

Wagner said he understands the concern.

“Anytime you hear about immunity and privilege, it can cause the hairs to go up on the back of your neck,” he said.

Wagner said the root of his personal advocacy for the bill in his home state comes from his time with the federal Environmental Protection Agency as senior adviser to the administrator for regional and state affairs. He’s seen the measure work for other states, including Texas, he said.

Oklahoma would become the 30th state to offer potential polluters privilege or immunity from penalty for self-auditing and reporting.

Environmental enforcement agencies typically have fewer resources to monitor potential pollution sources as those potential sources continue to increase, Wagner said. The EPA might find a problem and take months in reporting the problem to a company or the public.

Under the proposed act, a problem found by a company in a self-audit could be addressed faster, and the company would contact the agency to let it know it is self-auditing, he said.

“If you want companies to do this, you have to give them some incentive,” he said. “To give them protection that their audit documents will receive legal privilege and third parties won’t be able to use those documents to sue them, it removes a chilling effect. Otherwise, companies aren’t going to do it.”

The former Tulsa attorney likened the process to that of medical peer reviews in hospitals, which also are privileged.

“We want hospitals to review their processes and improve their operations, but what would be better for someone wanting to file a lawsuit than testimony from doctors about how they goofed here or there or how they could have done something better? The reviews help the hospitals perform better, and that is better overall for the public. The same goes for wanting to have cleaner air, water and fewer contaminations to the land,” he said.

He said the bill would not undo existing environmental rules.

“It’s important to note that this does not change one substantial aspect of existing law, statute or regulation. If you have a requirement for inspections or to meet regulations, you still have that requirement,” he said.

Pat Daly, conservation coordinator for the Oklahoma Chapter of Trout Unlimited, is not buying the sales pitch, and his group and others, such as the Oklahoma Conservation Coalition and the Sierra Club of Oklahoma, are doing all they can to urge state representatives to wait on this one.

The bill is too vague on several points, and the potential for harm is grave and needs a closer look, Daly said.

“Our read of it is if I have a pollution incident or am a heavy polluter, all I have to do is indicate I have a pollution issue and that I’m going to come up with a mitigation plan,” he said. “What really gets us is the records are going to be barred from public view, permanently sealed, and not even the judicial branch can see the records. As long as you say you have a plan to stop polluting, the public will never even know about it.”

Oklahoma Sierra Club Vice Chairman Mark Derichsweiler said it took some sorting to find the bill’s pitfalls.

“We’re still figuring out all the potential consequences,” he said. “From the outset, though, official public secrecy is hardly ever a good policy.”