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S.J.R. 14 Enrolled
A JOINT RESOLUTION OF THE LEGISLATURE PROPOSING TO AMEND RULE 508 OF
THE UTAH RULES OF EVIDENCE REGARDING ENVIRONMENTAL
SELF-EVALUATION PRIVILEGE; AND PROVIDING AN EFFECTIVE DATE.
This resolution proposes to amend the Utah Rules of Evidence as follows:
AMENDS:
Rule 508, Utah Rules of Evidence
Be it resolved by the Legislature of the state of Utah, two-thirds of all members elected to each of
the two houses voting in favor thereof:
As provided in the Utah Constitution Article VIII, Section 4, the Legislature may amend
rules of procedure and evidence adopted by the Supreme Court upon a two-thirds vote of all
members of both houses of the Legislature:
Section 1. Rule 508, Utah Rules of Evidence is amended to read:
Rule 508. Environmental self-evaluation privilege.
(a) Definitions. As used in this rule:
(1) "Administrative proceeding" means an adjudicatory proceeding conducted by the
department or other government entity with authority to enforce any environmental law, including
any notice of violation proceeding, any department proceeding listed in Section 19-1-305, or any
proceeding conducted pursuant to Title 63, Chapter 46b, Utah Code Ann. (1953) Administrative
Procedures Act.
(2) "Department" means the Department of Environmental Quality.
(3) "Environmental audit report" means any document, information, report, finding,
communication, note drawing, graph, chart, photograph, survey, suggestion, or opinion, whether
in preliminary, draft, or final form, prepared as the result of or in response to an environmental
self-evaluation.
(4) "Environmental law" means any requirement contained in Title 19 Utah Code Ann.
(1953), or in rules made under Title 19 Utah Code Ann. (1953), or in any rules, orders, permits,
licenses, or closure plans issued or approved by the department, or in any other provision or
ordinance addressing protection of the environment.
(5) "Environmental self-evaluation" means a self-initiated assessment, audit, or review, not
otherwise expressly required by an environmental law, that is performed to determine whether a
person is in compliance with environmental laws. A person may perform an environmental
self-evaluation through the use of employees or the use of outside consultants.
(6) "In camera review" means a confidential review in which only the court has access to
the privileged information.
(7) "Judicial proceeding" means a civil proceeding [
(b) General rule of privilege. A person for whom an environmental self-evaluation is
conducted or for whom an environmental audit report is prepared can refuse to disclose and prevent
any other person from disclosing an environmental audit report. However, the existence of an
environmental audit report, but not its content, is subject to discovery but is not admissible as
evidence in an administrative or judicial proceeding. Use of an environmental audit report in a
criminal proceeding does not waive or eliminate the privilege in an administrative or civil
proceeding.
(c) Who may claim the privilege. The privilege may be claimed by the person for whom an
environmental self-evaluation is conducted or for whom an environmental audit report is prepared.
The privilege may also be claimed by such person's guardian, conservator, personal representative,
trustee, or successor in interest. Regardless of who prepared the environmental audit report, only the
person for whom the environmental audit report was prepared can waive the environmental
self-evaluation privilege under this rule. If the person is a corporation, company, or other business
entity, the power to waive the privilege is limited to the officers and directors who have the requisite
management authority to act for the entity.
(d) Exceptions. No privilege exists under this rule:
(1) Waiver. If the person for whom the audit report was prepared expressly waives the
privilege;
(2) Fraud. If the privilege is being asserted for a fraudulent purpose;
(3) Avoidance. If the environmental audit report was prepared to avoid disclosure of
information in a compliance investigation or proceeding that was already underway and known to
the person asserting the privilege;
(4) Danger to public health or environment. If the information contained in the
environmental audit report must be disclosed to avoid a clear and impending danger to public health
or the environment outside of the facility property;
(5) Failure to address noncompliance. If the environmental audit report conclusively shows
that the person for whom the environmental audit report was prepared is not or was not in
compliance with an environmental law and after the environmental audit report the person did not
initiate appropriate efforts to achieve compliance with the environmental law within a reasonable
amount of time. If an environmental audit report shows noncompliance with more than one
environmental law, or if the noncompliance will require substantial resources to achieve compliance,
the person may demonstrate that appropriate efforts to achieve compliance were or are being taken
by instituting a comprehensive program that establishes a phased schedule of actions to be taken to
bring the person into compliance within a reasonable amount of time;
(6) Required by law. If the document or information is specifically required to be available
or furnished to a regulatory agency by any environmental law or any other law or rule;
(7) Obtained by department. If the information is obtained by the department through
observation, sampling, or monitoring;
(8) Independent source. If the information is obtained through any source independent of
the voluntary environmental self-evaluation.
(e) In camera review.
(1) The person seeking disclosure of an environmental audit report shall request an in camera
review of the audit report by a court of record.
(2) During in camera review, the party seeking disclosure of the environmental audit report
may not have access to the environmental audit report.
(3) (A) If the court of record determines that part of an environmental audit report is not
privileged, the court shall order the disclosure of the nonprivileged portions of the environmental
audit report.
(B) The privileged portions of the environmental audit report may not be disclosed.
(f) Burden of proof. The person asserting the environmental self-evaluation privilege has the
burden of establishing a prima facie case of privilege. The person seeking disclosure of an
environmental audit report has the burden of proving that the environmental audit report is not
privileged.
(g) Other privileges not affected. Nothing in this rule:
(1) limits, waives, or abrogates the scope or nature of any other statutory or common law
privilege; or
(2) limits, waives, or abrogates the department's authority to obtain or use documents or
information that the department is required to have under federal law to obtain delegation of a federal
program.
(h) Scope of rule. This rule shall apply to all administrative and judicial proceedings
commenced on or after March 21, 1995.
Section 2. Effective date.
This act takes effect on May 5, 1997.
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