ORS 468.963
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 (Inspection of, recommendations on and orders concerning railroad equipment and facilities) to 824.110 (Administrative authority of department) 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)

Intentionally left blank —Ed.

(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 (Inspection of, recommendations on and orders concerning railroad equipment and facilities) to 824.110 (Administrative authority of department) 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 (Inspection of, recommendations on and orders concerning railroad equipment and facilities) to 824.110 (Administrative authority of department) 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)

Intentionally left blank —Ed.

(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 (Unlawful disposal, storage or treatment of hazardous waste in the second degree) to 468.956 (Refusal to produce material subpoenaed by commission) 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 (Disclosure to the state). 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. The district attorney, Attorney General or governmental agency may consult with enforcement agencies regarding the contents of the report as necessary to prepare for the in camera hearing. However, the information used in preparation for the in camera hearing shall not be used in any investigation or in any proceeding against the defendant, and shall otherwise be kept confidential, unless and until such information is found by the court to be subject to disclosure.

(d)

The parties 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 provided under subsection (2) of this section.

(e)

Upon making a determination under subsection (3)(b) of this section, the court may compel the disclosure only of those portions of an Environmental Audit Report relevant to issues in dispute in the proceeding.

(5)

The privilege described in subsection (2) of this section shall not extend to:

(a)

Documents, communications, data, reports or other information required to be collected, developed, maintained, reported or otherwise made available to a regulatory agency pursuant to ORS 824.050 (Inspection of, recommendations on and orders concerning railroad equipment and facilities) to 824.110 (Administrative authority of department) or ORS chapter 465, 466, 468, 468A, 468B or 825, or other federal, state or local law, ordinance, regulation, permit or order;

(b)

Information obtained by observation, sampling or monitoring by any regulatory agency; or

(c)

Information obtained from a source independent of the environmental audit.

(6)

As used in this section:

(a)

“Environmental audit” means a voluntary, internal and comprehensive evaluation of one or more facilities or an activity at one or more facilities regulated under ORS 824.050 (Inspection of, recommendations on and orders concerning railroad equipment and facilities) to 824.110 (Administrative authority of department) or ORS chapter 465, 466, 468, 468A, 468B or 825, or the federal, regional or local counterpart or extension of such statutes, or of management systems related to such facility or activity, that is designed to identify and prevent noncompliance and to improve compliance with such statutes. An environmental audit may be conducted by the owner or operator, by the owner’s or operator’s employees or by independent contractors.

(b)

“Environmental Audit Report” means a set of documents, each labeled “Environmental Audit Report: Privileged Document” and prepared as a result of an environmental audit. An Environmental Audit Report 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, provided such supporting information is collected or developed for the primary purpose and in the course of an environmental audit. An Environmental Audit Report, when completed, may have three components:

(A)

An audit report prepared by the auditor, which may include the scope of the audit, the information gained in the audit, conclusions and recommendations, together with exhibits and appendices;

(B)

Memoranda and documents analyzing portions or all of the audit report and potentially discussing implementation issues; and

(C)

An implementation plan that addresses correcting past noncompliance, improving current compliance and preventing future noncompliance.

(7)

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. [1993 c.422 §20; 1997 c.320 §1; 2001 c.630 §1]
Note: See note under 468.961 (Approval of Attorney General or district attorney before bringing felony charge).

Source: Section 468.963 — Environmental audit privilege; exceptions; burden of proving privilege; waiver; disclosure after in camera review, https://www.­oregonlegislature.­gov/bills_laws/ors/ors468.­html.

Law Review Citations

26 EL 1241 (1996)

468.005
Definitions
468.010
Environmental Quality Commission
468.015
Functions of commission
468.020
Rules and standards
468.030
Department of Environmental Quality
468.035
Functions of department
468.040
Director
468.045
Functions of director
468.050
Deputy director
468.052
Payment by credit card
468.053
Surcharge on fee or invoice
468.054
Environmental Data Management System Fund
468.055
Contracts with Oregon Health Authority
468.060
Enforcement of rules by local health authorities
468.062
Authority of Department of Environmental Quality to require fingerprints
468.065
Issuance of permits
468.066
History of compliance with environmental quality laws
468.067
Organizational standing to seek judicial review of final order in Title V permit proceeding
468.070
Denial, modification, suspension or revocation of permits
468.073
Expedited or enhanced regulatory process
468.075
Revolving fund
468.076
Definitions for ORS 468.076 to 468.089
468.078
Action for pollution originating in Oregon
468.079
Action for pollution originating in reciprocating jurisdiction
468.080
Applicability of Oregon law
468.081
Rights of injured person
468.083
Right conferred under ORS 468.076 to 468.087 in addition to other rights
468.085
Sovereign immunity defense
468.087
Application and construction of ORS 468.076 to 468.087
468.089
Short title
468.090
Complaint procedure
468.095
Investigatory authority
468.100
Enforcement procedures
468.110
Appeal
468.115
Enforcement in cases of emergency
468.120
Public hearings
468.126
Advance notice
468.130
Schedule of civil penalties
468.135
Imposition of civil penalties
468.140
Civil penalties for specified violations
468.148
Legislative findings and declarations
468.149
Assessment of final changes to federal environmental law
468.150
Field sanitation and straw utilization and disposal methods as “pollution control facilities.”
468.153
Legislative findings and declarations
468.155
Definitions for ORS 468.155 to 468.190
468.160
Policy
468.163
Commencement of construction or installation of facility
468.165
Application for certification of pollution control facilities
468.167
Application for precertification
468.170
Action on application
468.172
“Environmental management system” defined
468.173
Applicable percentage of certified cost of facility eligible for tax credit
468.180
Conditions for issuance of certificate under ORS 468.170
468.183
Revocation of certification for loss of Green Permit
468.185
Procedure to revoke certification
468.190
Allocation of costs to pollution control
468.195
Issuance of bonds authorized
468.215
Pollution Control Fund
468.220
Department to administer fund
468.225
Investment of gross proceeds of agency bonds or other obligations
468.230
Pollution Control Sinking Fund
468.240
Remedy where default occurs on payment to state
468.245
Acceptance of federal funds
468.250
Participation in matching fund programs with federal government
468.253
Authority of director to act to benefit fund
468.255
Limit on grants and loans
468.260
Return of unexpended funds to state required
468.263
Definitions for ORS 468.263 to 468.272
468.264
Policy
468.265
Powers of county over pollution control facilities
468.266
Issuance of bonds
468.267
Security for bonds
468.268
Enforcement of bond obligation
468.269
Trustees
468.270
Tax status of leasehold interest in facilities
468.271
Effect on procedure of awarding contracts
468.272
Application of other laws relating to bonds
468.423
Definitions for ORS 468.423 to 468.440
468.425
Policy
468.427
Water Pollution Control Revolving Fund
468.428
Lottery bonds
468.429
Uses of revolving fund
468.431
Water Pollution Control Administration Fund
468.433
Duties of department
468.437
Loan applications
468.439
Borrowing authority of public agency
468.440
Loan terms and interest rates
468.442
Definitions
468.444
Zero-emission and electric vehicle rebate program
468.446
Charge Ahead Oregon Program
468.448
Audits
468.449
Zero-Emission Incentive Fund
468.501
Definitions for ORS 468.501 to 468.521
468.503
Purpose of Green Permits
468.506
Commission rulemaking to carry out Green Permit program
468.508
Eligibility for Green Permit
468.511
Environmental laws not applicable to facility operating under Green Permit
468.513
Judicial review of agency decision on issuance of Green Permit
468.516
Termination of Green Permit
468.518
Application for permit or approval affected by termination of Green Permit
468.521
Recovery of costs of agency in developing, negotiating and publicizing Green Permit
468.531
Legislative findings
468.533
Willamette River Cleanup Authority
468.581
Definitions for ORS 468.581 to 468.587
468.583
Policy
468.585
Legislative findings
468.587
State agencies and ecosystem services
468.920
Definitions for ORS 468.922 to 468.956
468.922
Unlawful disposal, storage or treatment of hazardous waste in the second degree
468.924
Applicability of ORS 161.655
468.926
Unlawful disposal, storage or treatment of hazardous waste in the first degree
468.929
Unlawful transport of hazardous waste in the second degree
468.931
Unlawful transport of hazardous waste in the first degree
468.933
Determination of number of punishable offenses under ORS 468.922, 468.926, 468.929 and 468.931
468.936
Unlawful air pollution in the second degree
468.939
Unlawful air pollution in the first degree
468.941
Determination of number of punishable offenses under ORS 468.936 and 468.939
468.943
Unlawful water pollution in the second degree
468.946
Unlawful water pollution in the first degree
468.948
Unlawful motorized in-stream placer mining
468.949
Determination of number of punishable offenses under ORS 468.943 and 468.946
468.951
Environmental endangerment
468.953
Supplying false information to agency
468.956
Refusal to produce material subpoenaed by commission
468.959
Upset or bypass as affirmative defense
468.961
Approval of Attorney General or district attorney before bringing felony charge
468.962
Notice to Department of Revenue of environmental felony
468.963
Environmental audit privilege
468.996
Civil penalty for intentional or reckless violation
468.997
Joinder of certain offenses
Green check means up to date. Up to date