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Rule 508. ?EnvironmentalSelf-Evaluation Privilege.

 

(a)      Definitions.

(a)(1)   "Administrativeproceeding" means an adjudicatory proceeding conducted by the departmentor other government entity with authority to enforce any environmental law, includingany notice of violation proceeding, any department proceeding listed in UtahCode ? 19-1-305, or any proceeding conducted pursuant to Title63G, Chapter 4, Utah Code, Utah Administrative Procedures Act.

 

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

 

(a)(3)   "Environmental audit report"means any document, information, report, finding, communication, note drawing,graph, chart, photograph, survey, suggestion, or opinion, whether inpreliminary, draft, or final form, prepared as the result of or in response toan environmental self-evaluation.

 

(a)(4)   "Environmental law" means anyrequirement contained in Title19 Utah Code, or in rules made under Title 19, Utah Code, or in any rules,orders, permits, licenses, or closure plans issued or approved by thedepartment, or in any other provision or ordinance addressing protection of theenvironment.

 

(a)(5)   "Environmental self-evaluation"means a self-initiated assessment, audit, or review, not otherwise expresslyrequired 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.

 

(a)(6)   "In camera review" means aconfidential review in which only the court has access to the privilegedinformation.

 

(a)(7)   "Judicialproceeding" means a civil proceeding.

 

(b)      Statement of the Privilege. 

(b)(1)   A person for whom an environmentalself-evaluation is conducted or for whom an environmental audit report isprepared has a privilege to refuse to disclose, and prevent any other personfrom disclosing, an environmental audit report.

 

(b)(2)   The existence of an environmental auditreport, but not its content, is subject to discovery but is not admissible inan administrative or judicial proceeding.

 

(b)(3)   Use of an environmental audit report in acriminal proceeding does not waive or eliminate the privilege in anadministrative or civil proceeding.

 

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

(c)(1)   the person for whom an environmental self-evaluation isconducted or for whom an environmental audit report is prepared; and

 

(c)(2)   that person's guardian, conservator, personalrepresentative, trustee, or successor in interest.

 

(d)       Exceptions to the Privilege. The privilege does not apply in the followingcircumstances:

(d)(1)   Waiver. 

(d)(1)(A)   If the person for whom the audit reportwas prepared expressly waives the privilege;

 

(d)(1)(B)   Regardless of who prepared theenvironmental audit report, only the person for whom the environmental auditreport was prepared can waive the environmental self-evaluation privilege;

 

(d)(1)(C)   If that person is a corporation, company,or other business entity, the power to waive the privilege is limited to theofficers and directors who have the requisite management authority to act forthe entity.

 

(d)(2)   Fraud. If the privilege is being asserted for a fraudulentpurpose;

 

(d)(3)   Avoidance. If the environmental audit report was prepared to avoiddisclosure of information in a compliance investigation or proceedingthat was already underway and known to the person asserting the privilege;

 

(d)(4)   Dangerto Public Health or Environment. Ifthe information contained in the environmental audit report must be disclosedto avoid a clear and impending danger to public health or the environmentoutside of the facility property;

 

(d)(5)   Failure to Address Noncompliance.

(d)(5)(A)   If the environmental audit reportconclusively shows that the person for whom the environmental audit report wasprepared is not or was not in compliance with an environmental law and afterthe environmental audit report the person did not initiate appropriate effortsto achieve compliance with the environmental law within a reasonable amount oftime.

 

(d)(5)(B)   If an environmental audit report showsnoncompliance with more than one environmental law, or if the noncompliancewill require substantial resources to achieve compliance, and the person doesnot demonstrate that appropriate efforts to achieve compliance were or arebeing taken by instituting a comprehensive program that establishes a phasedschedule of actions to be taken to bring the person into compliance within areasonable amount of time;

 

(d)(6)   Requiredby Law. If the document orinformation is specifically required to be available or furnished to aregulatory agency by any environmental law or any other law or rule;

 

(d)(7)   Obtainedby Department. If the information isobtained by the department through observation, sampling, or monitoring;

 

(d)(8)   IndependentSource. If the information is obtainedthrough any source independent of the voluntary environmental self-evaluation.

 

(e)      ? In Camera Review. 

(e)(1)   The person seeking disclosure of anenvironmental audit report shall request an in camera review of the auditreport by a court of record.

 

(e)(2)   During in camera review, the partyseeking disclosure of the environmental audit report may not have access to theenvironmental audit report.

(e)(3)(A)   If the court of record determines thatpart of an environmental audit report is not privileged, the court shall orderthe disclosure of the non-privileged portions of the environmental auditreport.

 

(e)(3)(B)   The privileged portions of theenvironmental audit report may not be disclosed.

 

(f)       Burden of Proof. 

(f)(1)   The person asserting the environmentalself-evaluation privilege has the burden of establishing a prima facie case ofprivilege.

 

(f)(2)   The person seeking disclosure of anenvironmental audit report has the burden of proving that the environmentalaudit report is not privileged.

 

(g)      Other Privileges Not Affected. Nothingin this rule: 

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

 

(g)(2)   limits, waives, or abrogates thedepartment's authority to obtain or use documents or information that thedepartment is required to have under federal law to obtain delegation of afederal program.

 

(h)      Scope of Rule. This rule applies toall administrative and judicial proceedings commenced on or after March 21,1995.

 

 

2011 Advisory Committee Note.? The language of this rule has been amended as part of therestyling of the Evidence Rules to make them more easily understood and to makestyle and terminology consistent throughout the rules. These changes areintended to be stylistic only. There is no intent to change any result in anyruling on evidence admissibility.