Senate Bill 949 (Kasunic) would create the Bituminous Coal Mine Safety Act to re-write Pennsylvania's bituminous coal mining safety laws.  The Department of Environmental Protection (DEP) would be responsible for administering the mine safety program.  The bill would establish a seven-member Board of Coal Mine Safety to develop regulations and to review and incorporate, where appropriate, federal mine safety regulatory changes.  The Board would consist of the Secretary of DEP who would serve as the chair and six members appointed by the Governor -- three members representing coal mine operators and three members representing working miners.  Any action by the Board would require five affirmative votes.  The Board would be authorized to establish fees to cover the Department's cost of administering the act.

The Department of Environmental Protection would be authorized to establish a mine rescue program for mines which are not able to provide their own mine rescue crew.  The mine rescue program would instruct mine employees on how to care for persons injured in a mine accident and train mine employees in the use of mine rescue equipment.  The Department would be required to purchase and maintain adequate quantities of emergency response vehicles and equipment to ensure a rapid and effective response to mine emergencies.  In the event of an emergency response, the Department would be authorized to use emergency contracting provisions to lease additional services or equipment.  The bill delineates the actions mine operators and the Department would be required to take in the event of a mine accident.  The Department would coordinate and assist in responding to all mine emergencies in the Commonwealth and could seek reimbursement of funds expended in responding to an emergency from a mine operator.  A Mine Safety Fund would be established for these funds and all fees, fines, and penalties received under the provisions of the act.  The monies in the Fund would be used for mine safety activities and the administration of the act.

Emergency medical personnel would have to be employed at every mine site.  At least one emergency medical technician would be on duty at any time when miners are engaged in the extraction, production, or preparation of coal.  The Department of Health would promulgate rules and regulations necessary to train and certify emergency medical technicians.  Each mine operator would have to provide every new employee who has not received the training required under the act within the previous six months with the first aid training required by the Department.  The bill outlines general safety requirements and mapping and surveying standards that would have to be met by mine operators.  Other health and safety requirements address proper ventilation, roof support, transportation of individuals, fire protection and mining close to abandoned workings.  In addition, separate chapters would address the use of electrical and diesel-powered equipment in mines.

The Department would be required to prepare and administer examinations for the certification of mine foremen, assistant mine foremen, mine examiners and mine electricians.  In addition, DEP would be authorized and directed to obtain and copy all maps of mining conducted in Pennsylvania.  Any person who has possession of a mine map would be required to make the map available to the Department for inspection and copying.  The Department would have to organize the maps and make them available for general public review.

The Department would be required to inspect each mine in Pennsylvania at least semi-annually for electrical purposes and at least quarterly for general purposes.  The Department could issue written orders to enforce the act and to protect the health and safety of miners and persons in and around mines.  The Department could assess an administrative penalty of up to $2,500 against a mine official or operator who is responsible for actions which pose an imminent and substantial threat to the health and safety of miners.  If the Department finds that an operator directed or condoned an unsafe act or violation of the act, the Department could assess an administrative penalty of not less than $10,000 and not more than $200,000.  The person that directed or condoned the action shall be removed from any positions of command and control.  The bill also provides for criminal penalties for violations of the act.  Passed:  49-0. 

Senate Resolution 237 (Brubaker) designates the week of February 16 through 23, 2008 as "FFA Week" in Pennsylvania.  Adopted by Voice Vote. 

Senate Resolution 238 (Baker) designates March 1, 2008 as "St. David's Day" and honors the many Pennsylvanians of Welsh heritage.  Adopted by Voice Vote. 

Executive Session 

Nominations to Various Boards and Commissions.  (See Attached)  Confirmed:  49-0. 

Tuesday, February 12, 2008 

Senate Bill 1 (Pileggi) would create the Right-to-Know Law.  The bill would specifically require a Commonwealth agency, a local agency and a legislative agency to provide public records or legislative records in accordance with the act.  The agencies would be prohibited from denying a requester access to a public record or legislative record due to the intended use of the record by the requester.  A judicial agency would be required to provide financial records in accordance with the act or any rule or order of court providing equal or greater access to the records.  Similarly, a judicial agency could not deny a requester access to a financial record due to the intended use of the record by the requester.  A record in the possession of a Commonwealth agency or local agency would be presumed to be a public record unless the record is exempt under Section 708 of the act, it is protected by a privilege, or it is exempt from disclosure under any other federal or state law or regulation, or judicial order or decree.  The same presumption would apply to legislative records and judicial financial records.  Nothing in the act would supersede or modify the public or confidential nature of a record or document established in federal or state law, regulation, or judicial order or decree.

The bill would establish an Office of Open Records in the Department of Community and Economic Development to provide information relating to implementation and enforcement of the act, to provide training courses, to establish an internet website with information relating to the act, to conduct a biannual review of the fees charged under the act, and to review appeals of decisions by Commonwealth agencies.  The Office would be required to employ or contract with attorneys to serve as appeals officers.  Each appeals officer would be required to complete a training course.  The Governor would appoint an executive director of the Office who would serve for a term of six years.  The executive director could not serve more than two terms or seek election or accept appointment to any political office during his or her tenure and for one year thereafter.  The appropriation for the Office would be a separate line item and would be under the jurisdiction of the executive director.  The Office would have to report annually to the Governor and the General Assembly on its activities.

All agencies covered by the act would be required to designate an open-records officer who would receive requests for records, direct requests to the appropriate person, track the agency's response to the requests and maintain the required records.  The Office of Open Records would be required to designate an appeals officer for all Commonwealth and local agencies.  The other agencies and offices covered by the act would also be required to designate an appeals officer.  An agency could promulgate regulations, rules or policies necessary to implement the act.  The following information would have to be posted at each agency and, if the agency maintains an internet website, on the agency's website:  contact information for the open records officer, contact information for the applicable appeals officer, a form which could be used to file a request, and the regulations and policies of the agency relating to the act.  The Office of Open Records would be required to develop a uniform form which must be accepted by all Commonwealth and local agencies, in addition to any form used by the agency to file a request under the act.  The uniform form would be published in the Pennsylvania Bulletin and on the office's website.  Judicial agencies and legislative agencies could develop their own forms or use the one developed by the Office of Open Records.

Public records, legislative records or financial records would be available for access during the regular business hours of an agency.  An agency could make its records available through any publicly accessible electronic means.  If a requester is unwilling or unable to use the electronic access, the requester could submit a written request to have the record converted to paper.  The agency would be required to provide the paper version of the record within five days of the receipt of the request.  Nothing in the act could be construed to require access to the computer of an agency or individual employee of an agency.

An agency could deny a requester access to a record if the requester has made repeated requests for that same record which have placed an undue burden on the agency.  Such a denial would not restrict the ability to request a different record.  An agency could exercise discretion to make an otherwise exempt record accessible for inspection or copying if the conditions outlined in the bill are met.  A public record that is not in the possession of an agency but is in the possession of a party with whom the agency has contracted to perform a governmental function, and which is directly related to the governmental function and not otherwise exempt, would be considered a public record.  Nothing in the act could be construed to modify, rescind, or supersede any record retention disposition schedule of an agency established pursuant to law, regulation, policy or other directive.

If information which is not subject to access is an integral part of a public record, legislative record, or financial record, the agency would be required to redact the information which is not subject to access and grant access to the other information.  Information which an agency redacts would be considered a denial.  If, in response to a request, an agency produces a record that is not a public record, legislative record or financial record, the agency would be required to notify any third party that provided the record to the agency, the person that is the subject of the record and the requester.  An agency would also be required to notify, within five business days, a third party of a request if the third party provided the record and included a written statement that the record contains a trade secret or confidential proprietary information.  The third party would have five business days from receipt of the notification to provide input on the release of the record.  The agency would be required to deny the request or release the information within ten business days of the provision of notice to the third party and notify the third party of the decision.  An agency would not be required to create a record which does not exist or to compile a record in a manner in which the agency does not currently compile, maintain or organize the record.  The burden of proving that a record, legislative record, or financial record is exempt from public access would be on the agency receiving the request by a preponderance of the evidence.  Section 708 of the proposed act lists the records that would be exempted from access by a requester.  In determining whether a record is exempt from access, an agency would be required to consider and apply each exemption separately.

The time to respond to a request could not exceed five business days from the date a written request is received by an open records officer.  If the agency fails to send the response within the five business days, the written request for access would be deemed denied.  The bill provides for an extension of the five business days if certain circumstances, such as the need for redaction or legal review, apply.  In these instances, the open records officer would send a written notice within the five business days notifying the requester that the request for access is being reviewed, the reason for the review, and a reasonable date that a response is expected to be provided.  If an agency's response is a denial of a written request, a written response would have to be issued detailing, among other information, the specific reasons for denial, including a citation of supporting legal authority.

A requester could file an appeal with the Office of Open Records or other appropriate appeals officer within 15 business days of the mailing date of the agency's response or within 15 business days of a deemed denial.  The appeal would have to state the grounds upon which the requester asserts that the record is a public record, legislative record or financial record and address any grounds stated by the agency for delaying or denying the request.  A person other than the agency or requester with a direct interest in the record could file a written request to provide information.  Prior to issuing a final determination, the appeals officer could hold a hearing.  A decision to hold or not hold a hearing would not be appealable.  The appeals officer would be required to make a final decision within 30 days of the receipt of the appeal.  The bill provides for judicial review of the decision.  A court could award reasonable attorney fees and costs if it finds that an agency willfully or with wanton disregard deprived the requester of access to a public record or otherwise acted in bad faith; or, the exemptions, exclusions, or defenses asserted by the agency in its final determination were not based on a reasonable interpretation of the law.  The court could also award reasonable attorney fees and costs to the requester or agency if it finds the legal challenge was frivolous.  A court could impose a civil penalty of not more than $1,500 if an agency denied access to a public record in bad faith.  An agency or public official who does not comply with a court order under the act would be subject to a civil penalty of not more than $500 per day until the public record is provided.

Fees for duplication would be established by the Office of Open Records for Commonwealth and local agencies and by each judicial and legislative agency.  The fees would have to be reasonable and based on prevailing fees for comparable duplication services provided by local business entities.  Fees for copying complex and extensive data sets of geographic information systems or integrated property assessment lists could be based on consideration of reasonable market value of the same or closely related data sets unless the information is being provided to the media for publication or broadcast or to a non-profit organization.  An agency could also establish user fees specifically for the provision of the enhanced electronic access, but only to the extent that the enhanced electronic access is in addition to making records accessible for inspection and duplication as required by the act.  Except as otherwise provided by statute, no other fees could be imposed unless the agency incurs costs for complying with the request.  No fees could be imposed for an agency's review of a record to determine if the record is a public, legislative or financial record.

A policy, rule or regulation adopted under the act could not limit the number of records which may be requested or require the disclosure of the purpose or motive for the request for access to records.

No later than May 30 of each year, a state-related university would be required to file a report with the Governor's Office, the General Assembly, the Auditor General, and the State Library containing the following:  all information required by Form 990 (Return of Organization Exempt from Income Tax); the salaries of all officers and directors of the state-related institution; and the highest 25 salaries paid to employees.  The report would not include information relating to individual donors.  The bill would also require Commonwealth agencies, legislative agencies and judicial agencies to provide copies of contracts in excess of $5,000 to the Treasury Department.  The Treasury Department would be required to make the contracts available for public inspection either by posting a copy of the contract or a contract summary on its website.  The Treasury Department would be required to post the information in a way that allows the public to search the contracts or the summaries.  The Treasury Department would also be required to maintain a page on its website with instructions on how to review a contract on its website.

The bill would repeal the existing Right-to-Know Law (Act 212 of 1957.  Concurrence in House Amendments to Senate Amendments:  50-0.

Senate Bill 1027 (Greenleaf) would amend Title 42 (Judiciary and Judicial Procedures) of the Pennsylvania Consolidated Statutes to establish a procedure for the Department of Corrections to identify offenders for the drug offender treatment program under the state intermediate punishment program provisions.  The bill would require the Department of Corrections to establish a selection committee within each diagnostic and classification center.  The selection committee could identify a defendant on its own as a possible candidate or a defendant could apply to the committee for permission to be considered for the program.  The selection committee would have to provide for an evaluation of the defendant to determine whether the defendant would benefit from a drug offender treatment program and whether placement in the program is appropriate.  If the selection committee determines that the defendant is an eligible offender, would benefit from the program, and placement is appropriate, the department could recommend to the court that the offender be re-sentenced to the program.  The district attorney and the defendant would have to agree to the modification.  Passed:  50-0. 

Senate Bill 1172 (Robbins) would amend Title 35 (Health and Safety) of the Pennsylvania Consolidated Statutes to remove the current authority of the Governor to suspend or limit the sale or transportation of firearms during a declared emergency.  Passed:  50-0. 

Senate Resolution 224 (Vance) directs the Legislative Budget and Finance Committee to study the cost for wastewater treatment plants to comply with Pennsylvania's Chesapeake Bay Tributary Strategy.  Adopted by Voice Vote. 

Senate Resolution 233 (Earll) observes the week of March 9 through 15, 2008 as "Problem Gambling Awareness Week" in Pennsylvania.  Adopted by Voice Vote. 

Senate Resolution 234 (Wonderling) designates March 6, 2008 as "Lymphedema D-Day" in Pennsylvania.  Adopted by Voice Vote. 

Senate Resolution 240 (Erickson) congratulates Cheyney University of Pennsylvania on its 171-year tradition of providing access, opportunity and academic excellence for African Americans and honors the contributions of Laura Wheeler Waring.  Adopted by Voice Vote. 

Senate Resolution 241 (Wonderling) recognizes the Pennsylvania Public Television Network on the occasion of its 40^th anniversary.  Adopted by Voice Vote. 

Senate Resolution 242 (M. White) recognizes the week of March 9 through 15, 2008 as "Girl Scout Week" in Pennsylvania.  Adopted by Voice Vote. 

House Bill 1691 (W. Keller) would authorize the Department of Conservation and Natural Resources, Department of Transportation, Department of Environmental Protection and the Philadelphia Regional Port Authority, acting for the Commonwealth, to agree to hold the United States Army Corps of Engineers free from all damages arising from construction, operation and maintenance of the Delaware River Main Channel Deepening Project, and related projects, involving cooperative agreements between the Commonwealth and the Army Corps of Engineers, except for damages due to the fault or negligence of the Army Corps of Engineers.  Passed:  49-1.