2017 ORS 468.963¹
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)(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)(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).

Law Review Cita­tions

26 EL 1241 (1996)

Chapter 468

See also annota­tions under ORS chapter 449 in permanent edi­tion.

Notes of Decisions

It was proper for Depart­ment of Environ­mental Quality to consider statutory pro­vi­sions of this chapter while acting on solid waste disposal permit applica­tion under ORS 459.205 (Permit required) to 459.265 (Hearings). Land Reclama­tion, Inc. v. DEQ, 55 Or App 996, 640 P2d 699 (1982), Sup Ct review denied

Atty. Gen. Opinions

Authority of depart­ment to review engineering data and design of wigwam waste burner or of air pollu­tion control equip­ment, or to prohibit construc­tion or installa­tion, (1971) Vol 35, p 917; state antipollu­tion regula­tions applicable to mining activities in wilderness areas in na­tional parks, (1972) Vol 35, p 1042; power of depart­ment to regulate mining activities or recovery of oil and geothermal resources, (1972) Vol 35, p 1100; authority of Environ­mental Quality Commission and Depart­ment of Environ­mental Quality to regulate disposi­tion of food processing byproducts to prevent air or wa­ter pollu­tion, (1979) Vol 39, p 770

Law Review Cita­tions

4 EL 339 (1974)

1 Legislative Counsel Committee, CHAPTER 468—Environmental Quality Generally, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors468.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 468, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano468.­html (2017) (last ac­cessed Mar. 30, 2018).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.