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91_HB2638
LRB9104827LDmb
1 AN ACT to amend the Environmental Protection Act by
2 changing Section 52.2.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The Environmental Protection Act is amended
6 by changing Section 52.2 as follows:
7 (415 ILCS 5/52.2)
8 Sec. 52.2. Environmental audit privilege.
9 (a) In order To encourage owners and operators of
10 facilities and persons conducting other activities regulated
11 under State, federal, regional, or local laws, ordinances,
12 regulations, permits, or orders to conduct voluntary internal
13 environmental audits of their compliance programs and
14 management systems and to assess and improve compliance with
15 those laws, an environmental audit privilege is recognized to
16 protect the confidentiality of communications relating to
17 voluntary internal environmental audits.
18 (b) An environmental audit report is privileged
19 information and is not admissible as evidence in any legal
20 action in any civil, criminal, or administrative proceeding,
21 except as provided in subsections (d) and (e) of this
22 Section.
23 (c) If an owner or operator performs or directs the
24 performance of an environmental audit, an officer or employee
25 involved with the environmental audit, or any consultant who
26 is hired for the purpose of performing the environmental
27 audit, may not be examined as to the environmental audit or
28 any environmental audit report as defined in this Section.
29 This subsection does not apply if the privilege set forth in
30 subsection (b) of this Section is determined under subsection
31 (d) or (e) not to apply.
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1 (d) (1) The privilege set forth in subsection (b) of
2 this Section does not apply to the extent that it is
3 expressly waived by the owner or operator of a facility who
4 prepared or caused to be prepared the environmental audit
5 report.
6 (2) In a civil, criminal, or administrative proceeding,
7 a court of record or the Board, after an in camera review,
8 shall require disclosure of material for which the privilege
9 in subsection (b) of this Section is asserted, if the court
10 or the Board determines one of the following:
11 (A) The privilege is asserted for a fraudulent
12 purpose.
13 (B) The material is not subject to the privilege.
14 (C) The material shows evidence of noncompliance
15 with State, federal or local environmental laws,
16 regulations, ordinances, permits, or orders, and the
17 owner or operator failed to undertake appropriate
18 corrective action or eliminate any reported violation
19 within a reasonable time.
20 (3) An owner or operator asserting the environmental
21 audit privilege set forth in subsection (b) of this Section
22 has the burden of demonstrating the applicability of the
23 privilege. However, the State's Attorney or Attorney General,
24 when seeking disclosure under part (A), (B), or (C) of
25 paragraph (2) of this subsection, has the burden of proving
26 the elements set forth in part (A), (B), or (C) of paragraph
27 (2) of this subsection.
28 (4) An owner or operator asserting the environmental
29 audit privilege in response to a request for disclosure under
30 subsection (d) shall provide to the State's Attorney,
31 Attorney General or other person, as the case may be, at the
32 time of filing any objection to the disclosure, all of the
33 following information:
34 (A) The date of the environmental audit report.
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1 (B) The identity of the entity conducting the
2 audit.
3 (C) The name and location of the audited facility.
4 (D) An identification of the portions of the
5 environmental audit report for which the privilege is
6 being asserted.
7 (5) Whenever a State's Attorney or the Attorney General
8 has sought and been denied, in any civil, criminal, or
9 administrative proceeding, disclosure of material found by a
10 court or the Board to be privileged under this Section, the
11 State's Attorney or Attorney General shall not thereafter
12 initiate a written request for the material under subsection
13 (d) or (e) from any owner or operator who was a party to that
14 proceeding.
15 (e) (1) Within 30 days after the State's Attorney or
16 Attorney General makes a written request by certified mail
17 for disclosure of an environmental audit report under this
18 subsection, the owner or operator who prepared or caused the
19 report to be prepared may file with the appropriate court, or
20 the Board, a petition requesting an in camera hearing on
21 whether the environmental audit report or portions of the
22 report are privileged under this Section or subject to
23 disclosure. The circuit court or the Board has jurisdiction
24 over a petition filed by an owner or operator under this
25 subsection requesting an in camera hearing on whether the
26 environmental audit report or portions of the report are
27 privileged or subject to disclosure. Failure by the owner or
28 operator to file a petition waives the privilege.
29 (2) An owner or operator asserting the environmental
30 audit privilege in response to a request for disclosure shall
31 include in its request for an in camera hearing all of the
32 following:
33 (A) The year the environmental audit report was
34 prepared.
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1 (B) The identity of the entity conducting the
2 audit.
3 (C) The name of the audited facility.
4 (D) The portion of the environmental audit report
5 for which the privilege is being asserted.
6 (3) Upon the filing of a petition under subsection (e),
7 the court or the Board shall issue an order scheduling,
8 within 45 days after the filing of the petition, an in camera
9 hearing to determine whether the environmental audit report
10 or portions of the report are privileged under this Section
11 or subject to disclosure.
12 (4) The court or the Board, after an in camera review,
13 shall require disclosure of material for which the privilege
14 in subsection (b) of this Section is asserted, if the court
15 or the Board determines one of the following:
16 (A) The privilege is asserted for a fraudulent
17 purpose.
18 (B) The material is not subject to the privilege.
19 (C) The material shows evidence of noncompliance
20 with State, federal, or local environmental laws,
21 regulations, ordinances, permits, or orders and the owner
22 or operator failed to undertake appropriate corrective
23 action or eliminate any violation of law identified
24 during the environmental audit within a reasonable time.
25 (5) An owner or operator asserting the environmental
26 audit privilege set forth in subsection (b) of this Section
27 has the burden of demonstrating the applicability of the
28 privilege. However, the State's Attorney or the Attorney
29 General when seeking disclosure under part (A), (B), or (C)
30 of paragraph (4) of this subsection has the burden of proving
31 the elements set forth in part (A), (B), or (C) of paragraph
32 (4) of this subsection.
33 (f) The parties may at any time stipulate to entry of an
34 order directing that specific information contained in an
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1 environmental audit report is or is not subject to the
2 privilege provided under subsection (b) of this Section.
3 (g) Upon making a determination under subsection (d) or
4 (e) of this Section, the court or the Board shall compel the
5 disclosure of only those portions of an environmental audit
6 report that are relevant to issues in dispute in the
7 proceeding.
8 (h) The privilege set forth in subsection (b) of this
9 Section does not extend to any of the following:
10 (1) Documents, communications, data, reports, or
11 other information required to be collected, developed,
12 maintained, reported, or otherwise made available to a
13 regulatory agency under this Act or federal, State, or
14 local law, ordinance, regulation, permit, or order.
15 (2) Information obtained by observation, sampling,
16 or monitoring by any regulatory agency.
17 (3) Information obtained from a source independent
18 of the environmental audit.
19 Nothing in this Section limits, waives, or abrogates
20 existing or future obligations of regulated entities to
21 monitor, record, or report information required under State,
22 federal, regional, or local laws, ordinances, regulations,
23 permits, or orders.
24 (i) As used in this Section:
25 "Environmental audit" means a voluntary, internal, and
26 comprehensive evaluation of one or more facilities or any
27 activity at one or more facilities regulated under State,
28 federal, regional, or local laws or ordinances, or of
29 management systems related to the facilities or activity,
30 that is designed to identify and prevent noncompliance and to
31 improve compliance with those laws. An environmental audit
32 may be conducted by the owner or operator, by the owner's or
33 operator's employees, or by independent contractors.
34 "Environmental audit report" means a set of documents,
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1 each labeled "Environmental Audit Report: Privileged
2 Document" and prepared as a result of an environmental audit.
3 An environmental audit report shall include a written
4 response to the findings of the audit. An environmental audit
5 report shall also include, as applicable, field notes and
6 records of observations, findings, opinions, suggestions,
7 conclusions, drafts, memoranda, drawings, photographs,
8 computer-generated or electronically recorded information,
9 maps, charts, graphs, and surveys, provided that this
10 supporting information is collected or developed for the
11 primary purpose and in the course of an environmental audit.
12 An environmental audit report, when completed, may have 4
13 components:
14 (1) An audit report prepared by the auditor, which
15 may include the scope of the audit, the information
16 gained in the audit, conclusions, and recommendations,
17 together with exhibits and appendices.
18 (2) Memoranda analyzing portions or all of the
19 audit report and discussing potential implementation
20 issues.
21 (3) An implementation plan that addresses
22 correcting past noncompliance, improving current
23 compliance, and preventing future noncompliance.
24 (4) Analytic data generated in the course of
25 conducting the environmental audit.
26 (j) Nothing in this Section limits, waives, or abrogates
27 the scope or nature of any statutory or common law privilege,
28 including the work product doctrine and the attorney-client
29 privilege.
30 (Source: P.A. 88-690, eff. 1-24-95.)