Oregon Revised Statutes Chapter 468 § 468.963 — Environmental audit privilege; exceptions; burden of proving privilege; waiver;

Environmental audit privilege; exceptions; burden of proving privilege; waiver; disclosure after in camera review. (1) In order to encourage owners and operators of facilities and persons conducting other activities regulated under ORS 824.050 to 824.110 or ORS chapter 465, 466, 468, 468A, 468B or 825, or the federal, regional or local counterpart or extension of such statutes, both to conduct voluntary internal environmental audits of their compliance programs and management systems and to assess and improve compliance with such statutes, an environmental audit privilege is recognized to protect the confidentiality of communications relating to such voluntary internal environmental audits. (2) An Environmental Audit Report shall be privileged and shall not be admissible as evidence in any civil or administrative proceeding, except as provided in subsections (3) and (4) of this section. The privilege provided in this subsection does not apply to a criminal investigation or proceeding. When an Environmental Audit Report is obtained in connection with a criminal investigation or proceeding, the privilege provided in this subsection related to civil or administrative proceedings is not waived. (3)(a) The privilege described in subsection (2) of this section does not apply to the extent that it is waived expressly or by implication by the owner or operator of a facility or persons conducting an activity that prepared or caused to be prepared the Environmental Audit Report. The release of an Environmental Audit Report by the owner or operator of a facility to any party or to any public body for purposes of negotiating, arranging or facilitating the sale, lease or financing of a property or a facility, or a portion of a property or facility: (A) Is not a waiver of the privilege; and (B) Does not create a right for a public body to require the release of an Environmental Audit Report. (b) In a civil or administrative proceeding, a court of record, after in camera review consistent with the Oregon Rules of Civil Procedure, shall require disclosure of material for which the privilege described in subsection (2) of this section is asserted, if such court determines that: (A) The privilege is asserted for a fraudulent purpose; (B) The material is not subject to the privilege; or (C) Even if subject to the privilege, the material shows evidence of noncompliance with ORS 824.050 to 824.110 or ORS chapter 465, 466, 468, 468A, 468B or 825, or with the federal, regional or local counterpart or extension of such statutes, appropriate efforts to achieve compliance with which were not promptly initiated and pursued with reasonable diligence. (c) A party asserting the environmental audit privilege described in subsection (2) of this section has the burden of proving the privilege, including, if there is evidence of noncompliance with ORS 824.050 to 824.110 or ORS chapter 465, 466, 468, 468A, 468B or 825, or the federal, regional or local counterpart or extension of such statutes, proof that appropriate efforts to achieve compliance were promptly initiated and pursued with reasonable diligence. A party seeking disclosure under subsection (3)(b)(A) of this section has the burden of proving that the privilege is asserted for a fraudulent purpose. (4)(a) A district attorney, the Attorney General or a governmental agency having probable cause to believe an offense has been committed under ORS 468.922 to 468.956 based upon information obtained from a source independent of an Environmental Audit Report, may obtain an Environmental Audit Report for which a privilege is asserted under subsection (2) of this section pursuant to search warrant, criminal subpoena or discovery as allowed by ORS 135.835. The district attorney, Attorney General or governmental agency shall immediately place the report under seal and shall not review or disclose its contents. (b) Within 30 days of the district attorney’s, Attorney General’s or governmental agency’s obtaining an Environmental Audit Report, the owner or operator who prepared or caused to be prepared the report may file with the appropriate court a petition requesting an in camera hearing on whether the Environmental Audit Report or portions thereof are privileged under this section or subject to disclosure. Failure by the owner or operator to file such petition shall waive the privilege. (c) Upon filing of such petition, the court shall issue an order scheduling an in camera hearing, within 45 days of the filing of the petition, to determine whether the Environmental Audit Report or portions thereof are privileged under this section or subject to disclosure. Such order further shall allow the district attorney, Attorney General or governmental agency to remove the seal from the report to review the report and shall place appropriate limitations on distribution and review of the report to protect against unnecessary disclosure. T