AB356: Bill Text

AB356,6,24 (b) "Environmental requirement" means a federal, state or local environmental law, including any rule, regulation, ordinance, permit, license, approval or special order issued under those laws. State environmental laws include chs. 160 and 280 to 299 and s. 166.20.

AB356,7,6 (c) "Supporting information" means any collection of data or material in any format, including field notes, records of observations, findings, opinions, suggestions, conclusions, drafts, memoranda, reports, drawings, photographs and computer-generated or electronically recorded data, maps, charts, graphs and surveys, if that collection of data or material was created or prepared for the primary purpose of and in the course of or as a result of an environmental audit.

AB356,7,12 (2) General rule of privilege. (a) An owner or operator of a site or facility has a privilege to refuse to disclose and to prevent any other person from disclosing any environmental audit report related to the owner's or operator's site or facility. This privilege is in addition to any other privilege provided under this chapter. This privilege may be claimed in any civil action or administrative proceeding, including a contested case, as defined in s. 227.01 (3).

AB356,7,19 (b) Before beginning an environmental audit, the person requesting the environmental audit shall notify the department of natural resources in writing of the date on which the environmental audit will begin, the site or facility or activity or management system related to a site or facility to be audited and the general scope of the environmental audit. The department of natural resources may not reveal to any person that the department has received a notice under this paragraph or the contents of any notice received under this paragraph.

AB356,7,21 (c) Disclosure of any part of an environmental audit report to any of the following does not waive the privilege under this section:

AB356,7,23 1. An employe, agent, successor, assignee, director or shareholder of the owner or operator of the site or facility.

AB356,7,24 2. An attorney of the owner or operator of the site or facility.

AB356,8,2 3. An independent contractor retained by the owner or operator of the site or facility to review an issue raised as a result of the environmental audit.

AB356,8,5 4. A partner or lender of the owner or operator of the site or facility or a person whom the owner or operator is currently negotiating with regarding partnership, transfer of ownership or lending of money.

AB356,8,7 5. A state or federal official or employe under the terms of an agreement between a state or federal agency and the owner or operator of the site or facility.

AB356,8,9 6. The department of natural resources if the disclosure meets the conditions under s. 299.94 (2) (a).

AB356,8,15 (3) Who may claim the privilege. (a) The privilege may be claimed by the owner or operator of the site or facility. If the owner or operator of the site or facility is a governmental unit, as defined in s. 939.648 (1), or a business, the privilege may be claimed by a director, officer, official, shareholder, trustee or managing employe, as defined in s. 49.498 (1) (e), or by any other employe. The authority to claim the privilege under this paragraph is presumed without evidence to the contrary.

AB356,8,19 (b) Any person who may otherwise claim a privilege under par. (a) retains the right to claim the privilege in any civil or administrative proceeding, notwithstanding the use of an environmental audit in any proceeding under sub. (4) (c) 1., in which the privilege does not apply.

AB356,8,25 (4) Exceptions. (a) The privilege does not apply if a court of record, after an in camera review of the environmental audit report and a statement listing any activities undertaken as a result of the environmental audit to achieve compliance with environmental requirements, determines that the person seeking access to the environmental audit report proves by a preponderance of the evidence any of the following:

AB356,9,1 1. That the privilege is asserted for a fraudulent purpose.

AB356,9,8 2. That the owner or operator of the site or facility failed to take the appropriate action that would result in compliance being achieved within a reasonable time after any noncompliance was discovered as the result of an environmental audit, but not exceeding 3 years after the discovery. The department of natural resources may extend the time to achieve compliance beyond the 3-year limit in an order scheduling compliance if the department determines that acceptable progress is being made in achieving compliance.

AB356,9,12 3. That the environmental audit report provides information about a site or facility that constitutes a violation of an environmental requirement and that the violation was committed with knowledge by an owner or operator of the site or facility that the site or facility violated an environmental requirement.

AB356,9,13 (b) The privilege does not apply to any of the following:

AB356,9,17 1. Documents, communication, data, reports or other information required to be made available or reported to a regulatory or enforcement agency or any other person by statute, rule, ordinance, permit, license, approval, order or consent agreement, or as otherwise provided by law.

AB356,9,20 2. Information obtained by the observation, sampling or monitoring conducted by a state or federal agency that regulates or enforces compliance with federal environmental requirements.

AB356,9,22 3. Information legally obtained from a source independent of an environmental audit.

AB356,9,23 (c) The privilege does not apply in any of the following:

AB356,9,24 1. An action for contribution or indemnity under an insurance contract.

AB356,9,25 2. A criminal investigation.

AB356,10,2 (5) Penalties. A person who uses this section to commit fraud may be fined not more than $25,000.

AB356, s. 3 Section 3. Initial applicability.

AB356,10,5 (1) This act first applies to environmental audits completed on the effective date of this subsection.

AB356, s. 4 Section 4. Effective date.

AB356,10,7 (1) This act takes effect on July 1, 2000.

AB356,10,8 (End)