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Minutes for SB212 - Committee on Commerce

Short Title

Directing the secretary of labor to submit a plan and negotiate an agreement for state enforcement of OSHA standards.

Minutes Content for Thu, Mar 16, 2017

Chairperson Lynn continued the hearing on SB 212.  She recognized Reed Holwegner, Kansas Legislative Research Department, who reviewed a list of states who currently administer OSHA. (Attachment 1)

Chairperson Lynn recognized Brad Burke, Deputy Secretary and Chief Attorney, Kansas Department of Labor (KDOL), who provided testimony neutral to the bill.  Mr. Burke said a state OSHA plan, also known as a "State Plan" is a federal-state partnership in which the State of Kansas would be required to seek assistance and approval from OSHA in order to develop, implement and administer a State operated program to relieve the federal government of its obligations under the Occupational Safety and Health Act of 1970. 

Mr. Burke's testimony included information on the legal background on OSHA State Plans and the criteria required for an OSHA State Plan.  Before a State Plan can be considered for approval, the following must be included and addressed: 

 - Designation of State Agency

 - Standards

 - Enforcement

 - Right of Entry and Inspection

 - Prohibition Against Advance Notice

 - Legal Authority

 - Personnel

 - Resources

 - Employer Records and Reports

 - State Agency Reports to the Assistant Secretary

Mr. Burke's testimony included a copy of the OSHA State Plan Policies and Procedure Manual.  In addition, a copy of the report provided in January, 2015 to the Legislature concerning what would be required in order for Kansas to develop and operate a Kansas job safety and health programs "State Plan" was distributed.  (Attachment 2)  (Attachment 3)  (Attachment 4)  (Attachment 5)

Mr. Burke provided information concerning several points that were discussed during the testimony provided on March 15, 2017, concerning this bill.  He said 20 states have private sector OSHA plans and  6 states have public sector only plans.  Twenty-four states do not have a State OSHA Plan.  The KDOL has jurisdiction over all public sector employers concerning OSHA standards.   He explained the KDOL participates in the OSHA 21 (d) Consultation Program in which an employer can request the State to consult with the employer concerning OSHA standards in achieving a safe, working environment.  The observations made by KDOL are confidential and are not shared with OSHA. 

Mr. Burke explained in order to have a State OSHA Plan, the State must go through a very detailed process.   He indicated it has taken some states 3 to 10 years from the initial application process to receiving final approval.   The 50 percent federal fund match is not available until initial approval for the State Plan has been received.    

Mr. Burke explained the State does not have to be fully staffed during the approval phase, however, it is required to have a certain level of staff.  During this time period, OSHA has concurrent jurisdiction. 

Mr. Burke referred to the proponent testimony concerning the benefits of collaboration with a State Plan.  He said KDOL has invited employers since 2013 to collaborate and provide input on a State OSHA Plan, however, there have been no respondents to the invitation for collaboration. 

Mr. Burke explained SB 212 requires KDOL to submit the State Plan to the federal government by September 1, 2017.  In order to accomplish this, $250,000 would be needed to hire a consultant to develop the plan.  Mr. Burke's testimony included the projected costs associated with developing the plan.  He noted, however, that the fiscal note did not include funds for administrative hearings related to OSHA citations.  Chairperson Lynn requested Mr. Burke to provide an estimate on the additional expenses he referenced. 

Senator Holland asked, based on recent testimony and the information provided in 2015 concerning this subject, if there was any additional information which  would promote a decision to move forward toward a State OSHA Plan.   Mr. Burke responded a driving issue from proponents has been the punitive nature of OSHA under the Obama administration.   Under the current administration, Mr. Burke indicated there has been a new directive from Washington for OSHA to be of greater assistance to employers.   

Senator Holland noted the testimony from proponents expressing a desire for a more collaborative environment.  He asked if there are things the state can do, in additional to the 21 (d) Consultation Program, to promote a friendlier environment with employers concerning OSHA standards.  Mr. Burke referred to the Safety and Health Achievement Recognition Program (SHARP), which provides an avenue for networking and mentoring Kansas employers on safety initiatives.     

Senator Alley asked Mr. Burke to review the 21 (d) Consultation Program process.  

Senator Alley suggested KDOL consider again requesting employers to provide input concerning the development of a State Plan.   He requested Mr. Burke to review the funding available for development of the plan.  Mr. Burke explained KDOL receives funding streams for certain types of work.   In order to develop a State  Plan, the funds would need to come from the general fund and KDOL does not have funds in its general fund for this task.  The fiscal note outlines the estimated cost to develop and maintain a State Plan.    

Senator Suellentrop said it was his interpretation that nothing would move forward until the Legislature approved the plan.  Mr. Burke explained it was his understanding the plan must be developed and some staff must be brought on board in order to receive initial approval.   Senator Suellentrop suggested additional time, different than the time frame outlined in SB 212, might be needed in order for the Legislature to work with KDOL to clearly understand whether a State Plan would be beneficial.  He asked if KDOL would be interested in working with the Legislature in a collaborative effort to review and address these issues.  Mr. Burke responded affirmatively. 

Chairperson Lynn acknowledged the complexity of the issue.   She noted an opponent had suggested the Legislature pause for one year  to allow for additional vetting on the subject.  She inquired if the Committee was agreeable to this suggestion.  It was the consensus of the group to not pursue the legislation at this time.  

Chairperson Lynn closed the hearing on SB 212.