§ 35-11-1105 — Environmental audit privilege; exceptions; burden of proof; waiver; disclosure after in camera review; application

(a) As used in this section:
(i) "Environmental audit" means a voluntary, internal
and comprehensive evaluation of one (1) or more facilities or an
activity at one (1) or more facilities regulated under this act,
or of management systems related to the facility or activity,
that is designed to identify and prevent noncompliance and to
improve compliance with this act. An environmental audit may be
conducted by the owner or operator, by the owner's or operator's
employees or by independent contractors. Once initiated the
voluntary environmental audit shall be completed within one
hundred eighty (180) days. Nothing in this section shall be
construed to authorize uninterrupted voluntary environmental
audits;
(ii) "Environmental audit report" means a set of
documents, each labeled "Environmental Audit Report: Privileged
Document," prepared as a result of an environmental audit and
may include field notes and records of observations, findings,
opinions, suggestions, conclusions, drafts, memoranda, drawings,
photographs, computer-generated or electronically recorded
information, maps, charts, graphs and surveys if supporting
information is generated or developed for the primary purpose
and in the course of an environmental audit. An environmental
audit report, when completed, shall have three (3) components:
(A) An audit report prepared by the auditor,
including the scope, commencement and completion dates of the
audit, the information gained in the audit, conclusions and
recommendations, together with exhibits and appendices;
(B) Memoranda and documents analyzing the audit
report and discussing implementation issues; and
(C) An audit implementation plan that corrects
past noncompliance, improves current compliance and prevents
future noncompliance.
(iii) "In camera review" means a hearing or review in
a courtroom, hearing room or chambers to which the general
public is not admitted. However, all parties to a civil or
administrative proceeding may attend an in camera hearing and
shall have a reasonable opportunity to review the documents for
which the privilege is claimed and challenge the application of
privilege to an environmental audit report. After such hearing
or review, the content of oral and other evidence and statements
of the judge, counsel and all parties shall be held in
confidence by those participating in or present at the hearing
or review, and any transcript of the hearing or review shall be
sealed and not considered a public record until its contents are
disclosed, pursuant to this section, by a court having
jurisdiction over the matter.
(b) Owners and operators of facilities and persons whose
activities are regulated under this act may conduct a voluntary
internal environmental audit of compliance programs and
management systems to assess and improve compliance with this
act. An environmental audit privilege is created to protect the
confidentiality of communications relating to these audits.
(c) An environmental audit report is privileged and shall
not be admissible as evidence in any civil or administrative
proceeding, except as follows:
(i) The owner or operator of a facility may waive
this privilege in whole or in part. If an owner or operator of
a facility or person conducting an activity seeks to introduce
any part of an environmental audit report as evidence in any
proceeding, including reporting of violations under W.S.
35-11-1106(a), the privilege is waived as to those sections of
the report dealing with that media sought to be introduced into
evidence;
(ii) In a civil or administrative proceeding, the
court or hearing officer after in camera review consistent with
the Wyoming Rules of Civil Procedure, shall require disclosure
of all or part of the report if it determines:
(A) The privilege is asserted for a fraudulent
purpose;
(B) The material is not subject to the
privilege;
(C) The material shows evidence of noncompliance
with this act or any federal environmental law or regulation and
appropriate efforts to achieve compliance were not pursued as
promptly as circumstances permit and completed with reasonable
diligence; or
(D) The information contained in the
environmental audit report demonstrates a substantial threat to
the public health or environment or damage to real property or
tangible personal property in areas outside of the facility
property.
(iii) Repealed By Laws 1998, ch. 80, § 2.
(iv) A party asserting the privilege granted under
this section has the burden of proving the privilege, including
proof that appropriate efforts to achieve compliance with this
act or any federal environmental law or regulation were promptly
pursued and completed with reasonable diligence. A party
seeking disclosure under subparagraph (c)(ii)(A) of this section
has the burden of proving that the privilege is asserted for a
fraudulent purpose;
(v) Repealed By Laws 1998, ch. 80, § 2.
(vi) Repealed By Laws 1998, ch. 80, § 2.
(vii) Repealed By Laws 1998, ch. 80, § 2.
(viii) The parties may at any time stipulate to entry
of an order directing whether specific information contained in
an environmental audit report is subject to the privilege
provided under this section;
(ix) Upon making a determination under paragraph
(c)(ii) of this section, the court shall compel disclosure of
those portions of an environmental audit report relevant to
issues in dispute in the proceeding.
(d) The privilege described in this section shall not
extend to:
(i) Documents, communications, data, reports or other
information required to be collected, developed, maintained,
reported or otherwise made available to a regulatory agency or
to any person pursuant to any regulatory requirement of this act
or any other federal or state law or regulation;
(ii) Information obtained by observation, sampling or
monitoring by any regulatory agency;
(iii) Information obtained from a source independent
of the environmental audit;
(iv) Documents existing prior to the commencement of
the environmental audit; or
(v) Documents prepared subsequent to and independent
of the completion of the environmental audit.
(e) Nothing in this section shall limit, waive or abrogate
the scope or nature of any statutory or common law privilege,
including the work product doctrine and the attorney-client
privilege.