Agenda - 11-23-2015 - Item E.1 - Abstract - Session Law Effects

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90 Disclosure made under the terms of a confidentiality agreement between governmental officials and the owner or operator of the facility audited. Disclosure made under the terms of a confidentiality agreement between a customer, lending institution, or insurance company with an existing or proposed relationship with the facility_ 8-58.55. Notification of audit. In order to assert the privilege established under G.S. 8-58.53, the owner or operator of the facility conducting the environmental audit shall, upon inspection of the facility by an enforcement agency, or no later than 10 working days after completion of an agency's inspection, notify the enforcement agency of the existence of any audit relevant to the subject of the agency's inspection, as well as the beginning date and completion date of that audit. Any environmental audit report shall include a signed certification from the owner or operator of the facility that documents the date the audit began and the completion date of the audit. 8-58.56. Revocation of privilege in civil and administrative proceedings. In a civil or administrative proceeding, an enforcement agency may seek by motion a declaratory ruling on the issue of whether an environmental audit report is privileged. The court shall revoke the privilege established under G.S. 8-58.53 for an audit report if the factors set forth in this section aply. In a civil proceeding, the court, after an in camera review, shall revoke the privilege established under G.S. 8-58.53 if the court determines that disclosure of the environmental audit report was sought after the effective date of this Part and either of the following aply: The privilege is asserted for purposes of deception or evasion. The material shows evidence of significant noncompliance with aplicable environmental laws; the owner or operator of the facility has not promptly initiated and pursued with diligence apropriate action to achieve compliance with these environmental laws or has not made reasonable efforts to complete any necessary permit aplication; and, as a result, the owner or operator of the facility did not or will not achieve compliance with applicable environmental laws or did not or will not complete the necessary permit aplication within a reasonable period of time. 8-58.57. Privilege in criminal proceedings. The privilege established under G.S. 8-58.53 is not aplicable in any criminal proceeding, 8-58.58. Burden of proof. A party asserting the privilege established under G.S. 8-58.53 has the burden of proving that (i) the materials claimed as privileged constitute an environmental audit report as defined by this Part, and (ii) compliance has been achieved or will be achieved within a reasonable period of time. A party seeking disclosure under G.S. 8-58.56 has the burden of proving the condition for disclosure set forth in that section. 8-58.59. Stipulations; declaratory rulings. The parties to a proceeding may at any time stipulate to entry of an order directing that specific information contained in an environmental audit report is or is not subject to the privilege. In the absence of an ongoing proceeding, where the parties are not in agreement, an enforcement agency may seek a declaratory ruling from a court on the issue of whether the materials are privileged under G.S. 8-58.53 and whether the privilege, if existing, should be revoked pursuant to G.S. 8-58.56. 8-58.60. Construction of Part. Nothing in this Part limits, waives, or abrogates any of the following The scope or nature of any statutory or common law privilege, including the work-product privilege or the attorney-client privilege. Any existing ability or authority under State law to challenge privilege. An enforcement agency's ability to obtain or use documents or information that the agency otherwise has the authority to obtain under State law adopted pursuant to federally delegated programs. "§ 8-58.61. Voluntary disclosure; limited immunity from civil and administrative penalties and fines. (a) An owner or operator of a facility is immune from imposition of civil and administrative penalties and fines for a violation of environmental laws voluntarily disclosed subject to the requirements and criteria set forth in this section. Provided, however, that waiver of penalties and fines shall not be granted until the aplicable enforcement agency has certified Page 16 Session Law 2015-286 House Bill 765-Ratified