Article 33.--ACTIONS RELATING TO COMMERCIAL ACTIVITY
60-3334.Same; waiver of privilege; exceptions;burden of proof; review; return of report.(a) The privilege recognized inK.S.A. 60-3333, and amendments thereto, does not apply totheextent that the privilege is expressly waived in writing by theperson who owns or operates the facility at which the environmentalaudit was conducted and who prepared or caused to be prepared theenvironmental audit report.
(b) The environmental audit report and information generated by theaudit may be disclosedto any person employed by the owner or operator of the audited facility, anylegal representative of the owner or operator or any independentcontractor retained by the owner or operator to address an issue or issuesraised by the audit, without waiving the privilege recognized inK.S.A. 60-3333, and amendments thereto.
(c) Disclosure of the environmental audit report or any informationgenerated by the audit under the following circumstances shall not waive theprivilege recognized in K.S.A. 60-3333, and amendments thereto:
(1) Disclosure under the terms of an agreement which expressly provides thatthe information provided be kept confidential between theowner or operator of the facility audited and a potentialpurchaser of the operation or facility; or
(2) disclosure under the terms of a confidentiality agreement betweengovernmental officials and the owner or operator of the facilityaudited, which expressly provides that the information provided be keptconfidential.Nothing in this act shall prohibit the division of post audit from havingaccess during an audit approved by the legislative post audit committee to allenvironmental audit report documents in the custody of a governmentalagency.
(d) In a civil or administrative proceeding, a court oradministrative tribunal of record shall require disclosure of material forwhich the privilege recognized inK.S.A. 60-3333, and amendments thereto, is asserted, afterin camera review consistent with the code of civil procedure, ifsuch court oradministrative tribunal determines that:
(1) The privilege is asserted for a fraudulent purpose;
(2) the party asserting the privilege has not implemented a managementsystem toassurecompliance with environmentallaws. Depending on the nature of the facilityincluding itssize, its financial resources and assets and the environmental risks posed byits operations, and based on a qualitative assessment of the totality ofcircumstances, a management system shall be deemed to satisfy therequirementsof thisact if it contains the following primary characteristics:
(A) A system that covers all parts of the facility'soperations regulated under one or more environmental laws;
(B) a system that regularly takes steps to prevent and remedy noncompliance;
(C) a system that has the support of senior management;
(D) the facility owner or operator implements a systemthat has policies, standards and procedures that highlight theimportance of assuring compliance with all environmental laws;
(E) the facility owner or operator's policies,standards and procedures are communicatedeffectively to all in the facility whose activities couldaffect complianceachievement;
(F) specific individuals within both high-level and plant- oroperation-level management are assigned responsibility to oversee compliancewith such standards and procedures;
(G) the facility owner or operator undertakes regularreview of the status of compliance,including routine evaluation and periodic auditing of day-to-day monitoringefforts, to evaluate, detect, prevent and remedy noncompliance;
(H) the facility owner or operator has a reportingsystem which employees can use to reportunlawful conduct within the organization without fear of retribution; and
(I) the facility's standards and procedures to ensurecompliance areenforced through appropriate employee performance, evaluation and disciplinarymechanisms;
(3) the material is not subject to the privilege as provided in K.S.A.60-3336, and amendments thereto;
(4) even if subject to the privilege, the material shows evidence ofnoncompliance with the environmentallaws, andappropriate efforts to achieve compliance with such laws were not promptlyinitiated and pursued with reasonable diligence upon discovery ofnoncompliance;
(5) the environmental audit report was prepared to avoid disclosure ofinformation in an investigative, administrative, criminal or civil proceedingthat was underway or imminent or for which the facility owner or operator hadbeen provided written notification that an investigation into a specificviolation had been initiated;
(6) all or part of the environmental audit report shows evidence ofsubstantial actual personal injury, which information is not otherwiseavailable; or
(7) all or part of the environmental audit report shows an imminent andsubstantial endangerment to the public health or the environment.
(e) A person seeking disclosure of an environmental auditreport has the burden of provingthat the privilegedoes not exist under this section.
(f) A person seeking disclosure of an environmental audit report mayreview the report, but such review does not waive or make the administrative orcivil evidentiary privilege inapplicable to the report.
(g) Environmental audit reports shall be returned to the facility's owner oroperator upon completion of the review of the report.
History: L. 1995, ch. 204, § 3;L. 2006, ch. 30, § 4; July 1.
Article 33.--ACTIONS RELATING TO COMMERCIAL ACTIVITY
60-3334.Same; waiver of privilege; exceptions;burden of proof; review; return of report.(a) The privilege recognized inK.S.A. 60-3333, and amendments thereto, does not apply totheextent that the privilege is expressly waived in writing by theperson who owns or operates the facility at which the environmentalaudit was conducted and who prepared or caused to be prepared theenvironmental audit report.
(b) The environmental audit report and information generated by theaudit may be disclosedto any person employed by the owner or operator of the audited facility, anylegal representative of the owner or operator or any independentcontractor retained by the owner or operator to address an issue or issuesraised by the audit, without waiving the privilege recognized inK.S.A. 60-3333, and amendments thereto.
(c) Disclosure of the environmental audit report or any informationgenerated by the audit under the following circumstances shall not waive theprivilege recognized in K.S.A. 60-3333, and amendments thereto:
(1) Disclosure under the terms of an agreement which expressly provides thatthe information provided be kept confidential between theowner or operator of the facility audited and a potentialpurchaser of the operation or facility; or
(2) disclosure under the terms of a confidentiality agreement betweengovernmental officials and the owner or operator of the facilityaudited, which expressly provides that the information provided be keptconfidential.Nothing in this act shall prohibit the division of post audit from havingaccess during an audit approved by the legislative post audit committee to allenvironmental audit report documents in the custody of a governmentalagency.
(d) In a civil or administrative proceeding, a court oradministrative tribunal of record shall require disclosure of material forwhich the privilege recognized inK.S.A. 60-3333, and amendments thereto, is asserted, afterin camera review consistent with the code of civil procedure, ifsuch court oradministrative tribunal determines that:
(1) The privilege is asserted for a fraudulent purpose;
(2) the party asserting the privilege has not implemented a managementsystem toassurecompliance with environmentallaws. Depending on the nature of the facilityincluding itssize, its financial resources and assets and the environmental risks posed byits operations, and based on a qualitative assessment of the totality ofcircumstances, a management system shall be deemed to satisfy therequirementsof thisact if it contains the following primary characteristics:
(A) A system that covers all parts of the facility'soperations regulated under one or more environmental laws;
(B) a system that regularly takes steps to prevent and remedy noncompliance;
(C) a system that has the support of senior management;
(D) the facility owner or operator implements a systemthat has policies, standards and procedures that highlight theimportance of assuring compliance with all environmental laws;
(E) the facility owner or operator's policies,standards and procedures are communicatedeffectively to all in the facility whose activities couldaffect complianceachievement;
(F) specific individuals within both high-level and plant- oroperation-level management are assigned responsibility to oversee compliancewith such standards and procedures;
(G) the facility owner or operator undertakes regularreview of the status of compliance,including routine evaluation and periodic auditing of day-to-day monitoringefforts, to evaluate, detect, prevent and remedy noncompliance;
(H) the facility owner or operator has a reportingsystem which employees can use to reportunlawful conduct within the organization without fear of retribution; and
(I) the facility's standards and procedures to ensurecompliance areenforced through appropriate employee performance, evaluation and disciplinarymechanisms;
(3) the material is not subject to the privilege as provided in K.S.A.60-3336, and amendments thereto;
(4) even if subject to the privilege, the material shows evidence ofnoncompliance with the environmentallaws, andappropriate efforts to achieve compliance with such laws were not promptlyinitiated and pursued with reasonable diligence upon discovery ofnoncompliance;
(5) the environmental audit report was prepared to avoid disclosure ofinformation in an investigative, administrative, criminal or civil proceedingthat was underway or imminent or for which the facility owner or operator hadbeen provided written notification that an investigation into a specificviolation had been initiated;
(6) all or part of the environmental audit report shows evidence ofsubstantial actual personal injury, which information is not otherwiseavailable; or
(7) all or part of the environmental audit report shows an imminent andsubstantial endangerment to the public health or the environment.
(e) A person seeking disclosure of an environmental auditreport has the burden of provingthat the privilegedoes not exist under this section.
(f) A person seeking disclosure of an environmental audit report mayreview the report, but such review does not waive or make the administrative orcivil evidentiary privilege inapplicable to the report.
(g) Environmental audit reports shall be returned to the facility's owner oroperator upon completion of the review of the report.
History: L. 1995, ch. 204, § 3;L. 2006, ch. 30, § 4; July 1.
Article 33.--ACTIONS RELATING TO COMMERCIAL ACTIVITY
60-3334.Same; waiver of privilege; exceptions;burden of proof; review; return of report.(a) The privilege recognized inK.S.A. 60-3333, and amendments thereto, does not apply totheextent that the privilege is expressly waived in writing by theperson who owns or operates the facility at which the environmentalaudit was conducted and who prepared or caused to be prepared theenvironmental audit report.
(b) The environmental audit report and information generated by theaudit may be disclosedto any person employed by the owner or operator of the audited facility, anylegal representative of the owner or operator or any independentcontractor retained by the owner or operator to address an issue or issuesraised by the audit, without waiving the privilege recognized inK.S.A. 60-3333, and amendments thereto.
(c) Disclosure of the environmental audit report or any informationgenerated by the audit under the following circumstances shall not waive theprivilege recognized in K.S.A. 60-3333, and amendments thereto:
(1) Disclosure under the terms of an agreement which expressly provides thatthe information provided be kept confidential between theowner or operator of the facility audited and a potentialpurchaser of the operation or facility; or
(2) disclosure under the terms of a confidentiality agreement betweengovernmental officials and the owner or operator of the facilityaudited, which expressly provides that the information provided be keptconfidential.Nothing in this act shall prohibit the division of post audit from havingaccess during an audit approved by the legislative post audit committee to allenvironmental audit report documents in the custody of a governmentalagency.
(d) In a civil or administrative proceeding, a court oradministrative tribunal of record shall require disclosure of material forwhich the privilege recognized inK.S.A. 60-3333, and amendments thereto, is asserted, afterin camera review consistent with the code of civil procedure, ifsuch court oradministrative tribunal determines that:
(1) The privilege is asserted for a fraudulent purpose;
(2) the party asserting the privilege has not implemented a managementsystem toassurecompliance with environmentallaws. Depending on the nature of the facilityincluding itssize, its financial resources and assets and the environmental risks posed byits operations, and based on a qualitative assessment of the totality ofcircumstances, a management system shall be deemed to satisfy therequirementsof thisact if it contains the following primary characteristics:
(A) A system that covers all parts of the facility'soperations regulated under one or more environmental laws;
(B) a system that regularly takes steps to prevent and remedy noncompliance;
(C) a system that has the support of senior management;
(D) the facility owner or operator implements a systemthat has policies, standards and procedures that highlight theimportance of assuring compliance with all environmental laws;
(E) the facility owner or operator's policies,standards and procedures are communicatedeffectively to all in the facility whose activities couldaffect complianceachievement;
(F) specific individuals within both high-level and plant- oroperation-level management are assigned responsibility to oversee compliancewith such standards and procedures;
(G) the facility owner or operator undertakes regularreview of the status of compliance,including routine evaluation and periodic auditing of day-to-day monitoringefforts, to evaluate, detect, prevent and remedy noncompliance;
(H) the facility owner or operator has a reportingsystem which employees can use to reportunlawful conduct within the organization without fear of retribution; and
(I) the facility's standards and procedures to ensurecompliance areenforced through appropriate employee performance, evaluation and disciplinarymechanisms;
(3) the material is not subject to the privilege as provided in K.S.A.60-3336, and amendments thereto;
(4) even if subject to the privilege, the material shows evidence ofnoncompliance with the environmentallaws, andappropriate efforts to achieve compliance with such laws were not promptlyinitiated and pursued with reasonable diligence upon discovery ofnoncompliance;
(5) the environmental audit report was prepared to avoid disclosure ofinformation in an investigative, administrative, criminal or civil proceedingthat was underway or imminent or for which the facility owner or operator hadbeen provided written notification that an investigation into a specificviolation had been initiated;
(6) all or part of the environmental audit report shows evidence ofsubstantial actual personal injury, which information is not otherwiseavailable; or
(7) all or part of the environmental audit report shows an imminent andsubstantial endangerment to the public health or the environment.
(e) A person seeking disclosure of an environmental auditreport has the burden of provingthat the privilegedoes not exist under this section.
(f) A person seeking disclosure of an environmental audit report mayreview the report, but such review does not waive or make the administrative orcivil evidentiary privilege inapplicable to the report.
(g) Environmental audit reports shall be returned to the facility's owner oroperator upon completion of the review of the report.
History: L. 1995, ch. 204, § 3;L. 2006, ch. 30, § 4; July 1.
