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Rule 508. EnvironmentalSelf-Evaluation Privilege.


(a)      Definitions.


(1)   "Administrativeproceeding" means an adjudicatory proceeding conducted by the departmentor other government entity with authority to enforce any environmental law,including any notice of violation proceeding, any department proceeding listedin Utah Code 19-1-305, or any proceeding conducted pursuant to Title 63G,Chapter 4, Utah Code, Utah Administrative Procedures Act.


(2)   "Department"means the Department of Environmental Quality.


(3)   "Environmentalaudit report" means any document, information, report, finding,communication, note drawing, graph, chart, photograph, survey, suggestion, oropinion, whether in preliminary, draft, or final form, prepared as the resultof or in response to an environmental self-evaluation.


(4)   "Environmentallaw" means any requirement contained in Title 19 Utah Code, or in rulesmade under Title 19, Utah Code, or in any rules, orders, permits, licenses, orclosure plans issued or approved by the department, or in any other provisionor ordinance addressing protection of the environment.


(5)   "Environmentalself-evaluation" means a self-initiated assessment, audit, or review, nototherwise expressly required by an environmental law, that is performed todetermine whether a person is in compliance with environmental laws. A personmay perform an environmental self-evaluation through the use of employees orthe use of outside consultants.


(6)   "Incamera review" means a confidential review in which only the court hasaccess to the privileged information.


(7)   "Judicialproceeding" means a civil proceeding.


(b)      Statementof the Privilege.


(1)   Aperson for whom an environmental self-evaluation is conducted or for whom anenvironmental audit report is prepared has a privilege to refuse to disclose,and prevent any other person from disclosing, an environmental audit report.


(2)   Theexistence of an environmental audit report, but not its content, is subject todiscovery but is not admissible in an administrative or judicial proceeding.


(3)   Useof an environmental audit report in a criminal proceeding does not waive oreliminate the privilege in an administrative or civil proceeding.


(c)      WhoMay Claim the Privilege.The privilege may be claimed by


(1)   theperson for whom an environmental self-evaluation is conducted or for whom anenvironmental audit report is prepared; and


(2)   thatperson's guardian, conservator, personal representative, trustee, or successorin interest.


(d)      Exceptionsto the Privilege. Theprivilege does not apply in the following circumstances:


(1)   Waiver.


(A)   Ifthe person for whom the audit report was prepared expressly waives the privilege;


(B)   Regardlessof who prepared the environmental audit report, only the person for whom theenvironmental audit report was prepared can waive the environmentalself-evaluation privilege;


(C)   Ifthat person is a corporation, company, or other business entity, the power towaive the privilege is limited to the officers and directors who have therequisite management authority to act for the entity.


(2)   Fraud. If the privilege is being assertedfor a fraudulent purpose;


(3)   Avoidance. If the environmental audit reportwas prepared to avoid disclosure of information in a compliance investigationor proceeding that was already underway and known to the person asserting theprivilege;


(4)   Danger to PublicHealth or Environment.If the information contained in the environmental audit report must bedisclosed to avoid a clear and impending danger to public health or theenvironment outside of the facility property;


(5)   Failure toAddress Noncompliance.


(A)   Ifthe environmental audit report conclusively shows that the person for whom theenvironmental audit report was prepared is not or was not in compliance with anenvironmental law and after the environmental audit report the person did notinitiate appropriate efforts to achieve compliance with the environmental lawwithin a reasonable amount of time.


(B)   Ifan environmental audit report shows noncompliance with more than oneenvironmental law, or if the noncompliance will require substantial resourcesto achieve compliance, and the person does not demonstrate that appropriateefforts to achieve compliance were or are being taken by instituting acomprehensive program that establishes a phased schedule of actions to be takento bring the person into compliance within a reasonable amount of time;


(6)   Required by Law. If the document or information isspecifically required to be available or furnished to a regulatory agency byany environmental law or any other law or rule;


(7)   Obtained byDepartment. If theinformation is obtained by the department through observation, sampling, ormonitoring;


(8)   IndependentSource. If theinformation is obtained through any source independent of the voluntaryenvironmental self-evaluation.


(e)      InCamera Review.


(1)   Theperson seeking disclosure of an environmental audit report shall request an incamera review of the audit report by a court of record.


(2)   Duringin camera review, the party seeking disclosure of the environmental auditreport may not have access to the environmental audit report.


(3)     (A)   Ifthe court of record determines that part of an environmental audit report isnot privileged, the court shall order the disclosure of the non-privilegedportions of the environmental audit report.


(B)   Theprivileged portions of the environmental audit report may not be disclosed.


(f)       Burdenof Proof.


(1)   Theperson asserting the environmental self-evaluation privilege has the burden ofestablishing a prima facie case of privilege.


(2)   Theperson seeking disclosure of an environmental audit report has the burden ofproving that the environmental audit report is not privileged.


(g)      OtherPrivileges Not Affected.Nothing in this rule:


(1)   limits,waives, or abrogates the scope or nature of any other statutory or common lawprivilege; or


(2)   limits,waives, or abrogates the department's authority to obtain or use documents orinformation that the department is required to have under federal law to obtaindelegation of a federal program.


(h)      Scopeof Rule. This ruleapplies to all administrative and judicial proceedings commenced on or afterMarch 21, 1995.


2011Advisory Committee Note. The language of this rule has been amended as part of the restyling of theEvidence Rules to make them more easily understood and to make style andterminology consistent throughout the rules. These changes are intended to bestylistic only. There is no intent to change any result in any ruling onevidence admissibility.