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S.J.R. 14
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5 A JOINT RESOLUTION OF THE LEGISLATURE PROPOSING TO AMEND RULE 508 OF
6 THE UTAH RULES OF EVIDENCE REGARDING ENVIRONMENTAL
7 SELF-EVALUATION PRIVILEGE; AND PROVIDING AN EFFECTIVE DATE.
8 This resolution proposes to amend the Utah Rules of Evidence as follows:
9 AMENDS:
10 Rule 508, Utah Rules of Evidence
11 Be it resolved by the Legislature of the state of Utah, two-thirds of all members elected to each of
12 the two houses voting in favor thereof:
13 As provided in the Utah Constitution Article VIII, Section 4, the Legislature may amend
14 rules of procedure and evidence adopted by the Supreme Court upon a two-thirds vote of all
15 members of both houses of the Legislature:
16 Section 1. Rule 508, Utah Rules of Evidence is amended to read:
17 Rule 508. Environmental self-evaluation privilege.
18 (a) Definitions. As used in this rule:
19 (1) "Administrative proceeding" means an adjudicatory proceeding conducted by the
20 department or other government entity with authority to enforce any environmental law, including
21 any notice of violation proceeding, any department proceeding listed in Section 19-1-305, or any
22 proceeding conducted pursuant to Title 63, Chapter 46b, Utah Code Ann. (1953) Administrative
23 Procedures Act.
24 (2) "Department" means the Department of Environmental Quality.
25 (3) "Environmental audit report" means any document, information, report, finding,
26 communication, note drawing, graph, chart, photograph, survey, suggestion, or opinion, whether
27 in preliminary, draft, or final form, prepared as the result of or in response to an environmental
1 self-evaluation.
2 (4) "Environmental law" means any requirement contained in Title 19 Utah Code Ann.
3 (1953), or in rules made under Title 19 Utah Code Ann. (1953), or in any rules, orders, permits,
4 licenses, or closure plans issued or approved by the department, or in any other provision or
5 ordinance addressing protection of the environment.
6 (5) "Environmental self-evaluation" means a self-initiated assessment, audit, or review,
7 not otherwise expressly required by an environmental law, that is performed to determine whether
8 a person is in compliance with environmental laws. A person may perform an environmental
9 self-evaluation through the use of employees or the use of outside consultants.
10 (6) "In camera review" means a confidential review in which only the court has access to
11 the privileged information.
12 (7) "Judicial proceeding" means a civil proceeding [
13 (b) General rule of privilege. A person for whom an environmental self-evaluation is
14 conducted or for whom an environmental audit report is prepared can refuse to disclose and
15 prevent any other person from disclosing an environmental audit report. However, the existence
16 of an environmental audit report, but not its content, is subject to discovery but is not admissible
17 as evidence in an administrative or judicial proceeding. Use of an environmental audit report in
18 a criminal proceeding does not waive or eliminate the privilege in an administrative or civil
19 proceeding.
20 (c) Who may claim the privilege. The privilege may be claimed by the person for whom
21 an environmental self-evaluation is conducted or for whom an environmental audit report is
22 prepared. The privilege may also be claimed by such person's guardian, conservator, personal
23 representative, trustee, or successor in interest. Regardless of who prepared the environmental
24 audit report, only the person for whom the environmental audit report was prepared can waive the
25 environmental self-evaluation privilege under this rule. If the person is a corporation, company,
26 or other business entity, the power to waive the privilege is limited to the officers and directors
27 who have the requisite management authority to act for the entity.
28 (d) Exceptions. No privilege exists under this rule:
29 (1) Waiver. If the person for whom the audit report was prepared expressly waives the
30 privilege;
31 (2) Fraud. If the privilege is being asserted for a fraudulent purpose;
1 (3) Avoidance. If the environmental audit report was prepared to avoid disclosure of
2 information in a compliance investigation or proceeding that was already underway and known
3 to the person asserting the privilege;
4 (4) Danger to public health or environment. If the information contained in the
5 environmental audit report must be disclosed to avoid a clear and impending danger to public
6 health or the environment outside of the facility property;
7 (5) Failure to address noncompliance. If the environmental audit report conclusively shows
8 that the person for whom the environmental audit report was prepared is not or was not in
9 compliance with an environmental law and after the environmental audit report the person did not
10 initiate appropriate efforts to achieve compliance with the environmental law within a reasonable
11 amount of time. If an environmental audit report shows noncompliance with more than one
12 environmental law, or if the noncompliance will require substantial resources to achieve
13 compliance, the person may demonstrate that appropriate efforts to achieve compliance were or
14 are being taken by instituting a comprehensive program that establishes a phased schedule of
15 actions to be taken to bring the person into compliance within a reasonable amount of time;
16 (6) Required by law. If the document or information is specifically required to be available
17 or furnished to a regulatory agency by any environmental law or any other law or rule;
18 (7) Obtained by department. If the information is obtained by the department through
19 observation, sampling, or monitoring;
20 (8) Independent source. If the information is obtained through any source independent of
21 the voluntary environmental self-evaluation.
22 (e) In camera review.
23 (1) The person seeking disclosure of an environmental audit report shall request an in
24 camera review of the audit report by a court of record.
25 (2) During in camera review, the party seeking disclosure of the environmental audit report
26 may not have access to the environmental audit report.
27 (3) (A) If the court of record determines that part of an environmental audit report is not
28 privileged, the court shall order the disclosure of the nonprivileged portions of the environmental
29 audit report.
30 (B) The privileged portions of the environmental audit report may not be disclosed.
31 (f) Burden of proof. The person asserting the environmental self-evaluation privilege has
1 the burden of establishing a prima facie case of privilege. The person seeking disclosure of an
2 environmental audit report has the burden of proving that the environmental audit report is not
3 privileged.
4 (g) Other privileges not affected. Nothing in this rule:
5 (1) limits, waives, or abrogates the scope or nature of any other statutory or common law
6 privilege; or
7 (2) limits, waives, or abrogates the department's authority to obtain or use documents or
8 information that the department is required to have under federal law to obtain delegation of a
9 federal program.
10 (h) Scope of rule. This rule shall apply to all administrative and judicial proceedings
11 commenced on or after March 21, 1995.
12 Section 2. Effective date.
13 This act takes effect on May 5, 1997.
Legislative Review Note
as of 2-19-97 10:04 AM
A limited legal review of this bill raises no obvious constitutional or statutory concerns.
Office of Legislative Research and General Counsel
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