(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.
(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.
(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.
(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.
(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;
(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.
(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.
(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.