60-3333. Environmental audit report; privilege; admissibility of report's contents; exceptions; burden to establish applicability of privilege.
60-3333
60-3333. Environmental audit report; privilege;admissibility ofreport's contents;exceptions; burden to establish applicability of privilege.(a) Material that is included in anenvironmental audit report generated during an environmental audit conductedafter July 1, 1995, is privileged and confidential and is not discoverable oradmissible as evidence in any civil or administrative proceeding, except asspecifically provided by this act.Failure to label each document within the environmental audit report as aprivileged document does not constitute a waiver of the environmental auditprivilege or create a presumption that the privilege does not apply.
(b) If an environmental audit report, or any part thereof, is subjectto the privilegerecognized in this section, neither any person who conducted the audit noranyone to whom the audit results are disclosed, unless such disclosureconstitutes a waiver of the privilege underK.S.A. 60-3334, can becompelled totestify regarding any matter which was the subject of the audit and which isaddressed in a privileged part of the audit report.
(c) A person who conducts or participates in the preparation of anenvironmental audit report and who has observed physical events of anenvironmental violation may testify about those events but shall not becompelled to testify or produce documents related to the preparation of or anyprivileged part of an environmental audit or any component listed in subsection(b) of K.S.A. 60-3332, and amendments thereto.
(d) An employee of a regulatory agency or other governmental employee shallnot request, review or otherwise use an environmental audit report during anagency inspection of a regulated facility or operation or activity at aregulated facility or operation.
(e) A party asserting the privilege under this section has the burden ofestablishing the applicability of the privilege. If there is evidence ofnoncompliance with environmental laws, such party must prove that appropriateefforts to achieve compliance were initiated promptly upon discovery andpursued with reasonable diligence.
History: L. 1995, ch. 204, § 2;L. 2006, ch. 30, § 3; July 1.