CHAPTER 4. VOLUNTARY ENVIRONMENTAL AUDITS
IC 13-28-4
Chapter 4. Voluntary Environmental Audits
IC 13-28-4-1
Reports privileged
Sec. 1. (a) The privilege created by this section does not apply tocriminal investigations or proceedings. Environmental audit reportsare admissible in criminal investigations or proceedings.
(b) Except as provided in section 2 of this chapter, anenvironmental audit report:
(1) is privileged; and
(2) is not admissible as evidence in a civil or an administrativelegal action, including enforcement actions under IC 13-30-3.
As added by P.L.1-1996, SEC.18. Amended by P.L.224-1999,SEC.12.
IC 13-28-4-2
Reports not privileged; civil or administrative actions
Sec. 2. (a) In a civil or an administrative proceeding, a court ofrecord, after an in camera review, shall require disclosure of materialfor which the privilege described in section 1 of this chapter isasserted if the court determines that both subdivisions (1) and (2)apply:
(1) The environmental audit report was first issued after July 1,1994.
(2) One (1) of the following applies:
(A) The privilege is asserted for a fraudulent purpose.
(B) The material is not subject to the privilege.
(C) The material is subject to the privilege and the materialshows evidence of noncompliance with:
(i) this title or a rule or standard adopted by one (1) of theboards;
(ii) a determination, a permit, or an order issued by thecommissioner under this title; or
(iii) the federal, regional, or local counterpart of item (i) or(ii);
and the person claiming the privilege did not promptlyinitiate and pursue appropriate efforts to achieve compliancewith reasonable diligence.
(b) If the noncompliance described in subsection (a)(2)(C)constitutes a failure to obtain a required permit, the person isconsidered to have made appropriate efforts to achieve complianceif the person filed an application for the required permit not laterthan ninety (90) days after the date the person became aware of thenoncompliance.
As added by P.L.1-1996, SEC.18.
IC 13-28-4-3
Repealed
(Repealed by P.L.224-1999, SEC.17.)
IC 13-28-4-4
Burden of proof regarding privilege
Sec. 4. (a) A party asserting the privilege described in section 1 ofthis chapter has the burden of proving that the party may exercise theprivilege.
(b) A party asserting the privilege described in section 1 of thischapter has the burden of establishing evidence that the person madeappropriate efforts to achieve compliance as described in section 2(b)of this chapter if the evidence indicates that the person was innoncompliance as described in section 2(a)(2)(C) of this chapter.
(c) A party seeking disclosure of material in an environmentalaudit report under section 2(a)(2)(A) of this chapter has the burdenof proving that the privilege is being asserted for a fraudulentpurpose.
As added by P.L.1-1996, SEC.18. Amended by P.L.224-1999,SEC.13.
IC 13-28-4-5
Repealed
(Repealed by P.L.224-1999, SEC.17.)
IC 13-28-4-6
Disclosure limited to relevant portions of reports
Sec. 6. Upon making a determination under section 2 of thischapter, the court may compel the disclosure of only those parts ofan environmental audit report that are relevant to issues in dispute inthe proceeding.
As added by P.L.1-1996, SEC.18. Amended by P.L.224-1999,SEC.14.
IC 13-28-4-7
Waiver of privilege
Sec. 7. (a) Subject to subsections (b) and (c), the privilegedescribed in section 1 of this chapter does not apply to the extent thatthe privilege is waived:
(1) expressly; or
(2) by implication;
by the owner or operator who prepared the environmental report orcaused the report to be prepared.
(b) A party that submits an environmental audit report to thedepartment waives any privilege to which the party would otherwisebe entitled under this chapter. If the department determines underIC 5-14-3-4(a) that part of an environmental audit report is exceptedfrom IC 5-14-3-3, then that part of the environmental audit reportmay not be disclosed by a public agency unless access to the reportis required by a state or federal statute or is ordered by a court asprovided under IC 5-14-3-4(a).
(c) When the department or a prosecuting attorney obtains,reviews, or uses an environmental audit report in a criminalproceeding, the administrative or civil evidentiary privilege created
by this chapter is not waived or eliminated for any other purpose.
As added by P.L.1-1996, SEC.18. Amended by P.L.224-1999,SEC.15.
IC 13-28-4-8
Stipulations regarding privilege
Sec. 8. The parties to a legal action may at any time stipulate tothe entry of an order that directs that specific information containedin an environmental audit report is or is not subject to the privilegeprovided under section 1 of this chapter.
As added by P.L.1-1996, SEC.18.
IC 13-28-4-9
Applicability of privilege
Sec. 9. (a) The privilege described in section 1 of this chapterdoes not apply to the following:
(1) Documents, communications, data, reports, or otherinformation that must be collected, developed, maintained,reported, or otherwise made available to a regulatory agencyunder:
(A) this title;
(B) a rule or standard adopted under this title;
(C) a determination, a permit, or an order made or issued bythe commissioner under this title; or
(D) any other federal, state, or local law, permit, or order.
(2) Information obtained by observation, sampling, ormonitoring by any regulatory agency.
(3) Information obtained from a source independent of theenvironmental audit.
(b) This section does not allow the regulatory agency to adopt arule or a permit condition for the purpose of circumventing theprivilege established in this chapter by requiring disclosure of areport of a voluntarily conducted audit.
As added by P.L.1-1996, SEC.18.
IC 13-28-4-10
Effect on other privileges
Sec. 10. This chapter does not limit, waive, or abrogate the scopeor nature of any statutory or common law privilege, including thefollowing:
(1) The work product doctrine.
(2) The attorney client privilege.
As added by P.L.1-1996, SEC.18.
IC 13-28-4-11
Statistics on use of reports; enforcement policy
Sec. 11. (a) The department shall maintain statistics on the use ofenvironmental audit reports in department compliance andenforcement activities, including statistics on:
(1) the number of times the reports are disclosed to the
department;
(2) the number and types of violations disclosed to thedepartment through the reports;
(3) the civil penalties collected for the violations; and
(4) the time necessary for the violations to be corrected.
The department shall report annually to the environmental qualityservice council on the use of environmental audit reports.
(b) The department shall propose an enforcement policy, pursuantto IC 13-14-1-11.5, that provides relief from civil penalties for avoluntary disclosure that results from an internal environmentalaudit. In developing this enforcement policy, the department shallconsider similar policies implemented by:
(1) the United States Environmental Protection Agency; and
(2) states contiguous to Indiana.
(c) The department shall report annually to the environmentalquality service council on the use and effectiveness of theenforcement policy.
As added by P.L.224-1999, SEC.16.