PRINTER'S NO. 3264
No. 2566 Session of 1994
INTRODUCED BY SAURMAN, REBER, MARKOSEK, HENNESSEY, WOZNIAK,
VAN HORNE, ARMSTRONG, BUNT, LAUB, L. I. COHEN, FICHTER AND
LEH, MARCH 7, 1994
REFERRED TO COMMITTEE ON CONSERVATION, MARCH 7, 1994
AN ACT
1 Providing for environmental audits and environmental audit
2 reports and for the exclusion of same as evidence.
3 The General Assembly of the Commonwealth of Pennsylvania
4 hereby enacts as follows:
5 Section 1. Short title.
6 This act shall be known and may be cited as the Environmental
7 Audit Privilege Act.
8 Section 2. Definitions.
9 The following words and phrases when used in this act shall
10 have the meanings given to them in this section unless the
11 context clearly indicates otherwise:
12 "Department." The Department of Environmental Resources of
13 the Commonwealth.
14 "Environmental audit." A voluntary, internal and
15 comprehensive evaluation of one or more facilities or an
16 activity at one or more facilities regulated under the
17 environmental laws of this Commonwealth, or the Federal,
1 regional or local counterpart or extension of such statutes, or
2 of management systems related to such facility or activity, that
3 is designed to identify and prevent noncompliance and to improve
4 compliance with these statutes.
5 "Environmental audit report." A set of documents, each
6 labeled "Environmental Audit Report: Privileged Document" and
7 prepared as a result of an environmental audit.
8 "Environmental laws of this Commonwealth." The following
9 statutes together with the regulations promulgated thereunder:
10 (1) Act of July 7, 1980 (P.L.380, No.97), known as the
11 Solid Waste Management Act.
12 (2) Act of July 28, 1988 (P.L.556, No.101), known as the
13 Municipal Waste Planning, Recycling and Waste Reduction Act.
14 (3) Act of October 18, 1988 (P.L.756, No.108), known as
15 the Hazardous Sites Cleanup Act.
16 Section 3. Environmental audit privilege.
17 (a) Recognition and purpose.--In order to encourage owners
18 and operators of facilities and other persons conducting
19 activities regulated under the environmental laws of this
20 Commonwealth or the Federal, regional or local counterpart or
21 extension of these statutes, both to conduct voluntary internal
22 environmental audits of their compliance programs and management
23 systems and to assess and improve compliance with these
24 statutes, an environmental audit privilege is recognized to
25 protect the confidentiality of communications relating to such
26 voluntary internal environmental audits.
27 (b) Conduct.--An environmental audit may be conducted by the
28 owner or operator, by the owner's or operator's employees or by
29 independent contractors.
30 Section 4. Environmental audit report.
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1 (a) Components.--An environmental audit report, when
2 completed, may have three components:
3 (1) An audit report prepared by the auditor, which may
4 include the scope of the audit, the information gained in the
5 audit, conclusions and recommendations, together with
6 exhibits and appendices.
7 (2) Memoranda and documents analyzing portions or all of
8 the audit report and potentially discussing implementation
9 issues.
10 (3) An implementation plan that addresses correcting
11 past noncompliance, improving current compliance and
12 preventing future noncompliance.
13 (b) Other inclusions.--An environmental audit report may
14 include field notes and records of observations, findings,
15 opinions, suggestions, conclusions, drafts, memoranda, drawings,
16 photographs, computer-generated or electronically recorded
17 information, maps, charts, graphs and surveys, provided such
18 supporting information is collected or developed for the primary
19 purpose and in the course of an environmental audit.
20 (c) Report not admissible as evidence.--An environmental
21 audit report shall be privileged and shall not be admissible as
22 evidence in any legal action in any civil, criminal or
23 administrative proceeding, except as provided in section 5.
24 Section 5. Privilege.
25 (a) Effect of waiver.--The privilege described in section
26 4(c) does not apply to the extent that it is waived by the owner
27 or operator of a facility at which an environmental audit was
28 conducted and who prepared or caused to be prepared the
29 environmental audit report as a result of the audit.
30 (b) Disclosure.--In a civil, criminal or administrative
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1 proceeding, a court of record, after in camera review consistent
2 with the Rules of Civil Procedure, shall require disclosure of
3 material for which the privilege described in section 4(c) is
4 asserted, if such court determines that:
5 (1) the privilege is asserted for a fraudulent purpose;
6 (2) the material is not subject to the privilege; or
7 (3) even if subject to the privilege, the material shows
8 evidence of noncompliance with the environmental laws of this
9 Commonwealth, or with the Federal, regional or local
10 counterpart or extension of such statutes, and appropriate
11 efforts to achieve compliance with such laws were not
12 promptly initiated and pursued with reasonable diligence upon
13 discovery of noncompliance.
14 (c) Applicability of privilege.--A party asserting the
15 environmental audit privilege described in section 4(c) has the
16 burden of demonstrating the applicability of the privilege,
17 including, if there is evidence of noncompliance with the
18 environmental laws of this Commonwealth or the Federal, regional
19 or local counterpart or extension of such statutes, proof that
20 appropriate efforts to achieve compliance were promptly
21 initiated and pursued with reasonable diligence; provided,
22 however, that a party seeking disclosure under subsection (b)(1)
23 has the burden of proving that the privilege is asserted for a
24 fraudulent purpose and, in a criminal proceeding, the
25 Commonwealth has the burden of proving the conditions for
26 disclosure set forth in subsection (b)(2).
27 Section 6. Criminal offense.
28 (a) Obtaining of report by Commonwealth.--The Commonwealth,
29 having probable cause to believe a criminal offense has been
30 committed under the environmental laws of this Commonwealth
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1 based upon information obtained from a source independent of an
2 environmental audit report, may obtain an environmental audit
3 report for which a privilege is asserted under section 4(c)
4 pursuant to a search warrant, criminal subpoena or discovery as
5 allowed by the Rules of Criminal Procedure. The Commonwealth
6 shall immediately place the report under seal and shall not
7 review or disclose the contents of the report.
8 (b) In camera review.--Within 30 days of the State's
9 obtaining an environmental audit report, the owner or operator
10 who prepared or caused to be prepared the report may file with
11 the appropriate court a petition requesting an in camera review
12 on whether the environmental audit report or portions thereof
13 are privileged or subject to disclosure under this act. Failure
14 by the owner or operator to file this petition shall waive the
15 privilege.
16 (c) Procedure.--Upon filing of such petition, the court
17 shall issue an order scheduling an in camera review, within 45
18 days of the filing of the petition, to determine whether the
19 environmental audit report or portions thereof are privileged or
20 subject to disclosure under this act. Such order further shall
21 allow the district attorney or Attorney General to remove the
22 seal from the report to review the report and shall place
23 appropriate limitations on distribution and review of the report
24 to protect against unnecessary disclosure. The district attorney
25 or Attorney General may consult with enforcement agencies
26 regarding the contents of the report as necessary to prepare for
27 the in camera review. However, the information used in
28 preparation for the use in camera review shall not be used in
29 any investigation or in any legal proceeding, and shall
30 otherwise be kept confidential, unless and until such
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1 information is found by the court to be subject to disclosure.
2 (d) Suppression of evidence.--Failure to comply with the
3 review, disclosure or use prohibitions of this section shall be
4 the basis, in any civil, criminal or administrative proceeding,
5 for suppression of any evidence arising or derived from the
6 unauthorized review, disclosure or use. The party failing to
7 comply with this section shall have the burden of proving that
8 proffered evidence did not arise and was not derived from the
9 unauthorized activity.
10 (e) Stipulation.--The parties may at any time stipulate to
11 entry of an order directing that specific information contained
12 in an environmental audit report is or is not subject to the
13 privilege provided under section 4(c).
14 (f) Relevant issues.--Upon making a disclosure determination
15 under section 5(b), the court may compel the disclosure only of
16 those portions of an environmental audit report relevant to
17 issues in dispute in the proceeding.
18 Section 7. Limitation on privilege.
19 The privilege described in section 4(c) shall not extend to
20 any of the following:
21 (1) Documents, communications, data, reports or other
22 information required to be collected, developed, maintained,
23 reported or otherwise made available to a regulatory agency
24 pursuant to the environmental laws of this Commonwealth or
25 other Federal, State or local law, ordinance, regulation,
26 permit or order.
27 (2) Information obtained by observation, sampling or
28 monitoring by any regulatory agency.
29 (3) Information obtained from a source independent of
30 the environmental audit.
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1 Section 8. Construction of act.
2 Nothing in this act shall limit, waive or abrogate the scope
3 or nature of any statutory or common law privilege, including
4 the work product doctrine and the attorney-client privilege.
5 Section 9. Effective date.
6 This act shall take effect in 60 days.
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