Michigan Laws 324.14802 – Environmental audit and environmental audit report; conduct; creation; privilege and protection from disclosure; exception; testimony; admissibility as evidence
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(1) The owner or operator of a facility, or an employee or agent of the owner or operator on behalf of the owner or operator, at any time may conduct an environmental audit and may create an environmental audit report.
(2) Except as provided in subsection (3), an environmental audit report created pursuant to this part is privileged and protected from disclosure under this part.
Terms Used In Michigan Laws 324.14802
- Department: means the director of the department of natural resources or his or her designee to whom the director delegates a power or duty by written instrument. See Michigan Laws 324.301
- Discovery: Lawyers' examination, before trial, of facts and documents in possession of the opponents to help the lawyers prepare for trial.
- Environmental audit: means a voluntary and internal evaluation conducted on or after the effective date of this part of 1 or more facilities or an activity at 1 or more facilities regulated under state, federal, regional, or local laws or ordinances, or of environmental management systems or processes related to the facilities or activity, or of a previously corrected specific instance of noncompliance, that is designed to identify historical or current noncompliance and prevent noncompliance or improve compliance with 1 or more of those laws, or to identify an environmental hazard, contamination, or other adverse environmental condition, or to improve an environmental management system or process. See Michigan Laws 324.14801
- Environmental audit report: means a document or a set of documents, each labeled at the time it is created "environmental audit report: privileged document" and created as a result of an environmental audit. See Michigan Laws 324.14801
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Person: means an individual, partnership, corporation, association, governmental entity, or other legal entity. See Michigan Laws 324.301
- Privilege: means the privilege provided to an environmental audit report as provided in this part. See Michigan Laws 324.14801
- Rule: means a rule promulgated pursuant to the administrative procedures act of 1969, 1969 PA 306, MCL 24. See Michigan Laws 324.301
- state: when applied to the different parts of the United States, shall be construed to extend to and include the District of Columbia and the several territories belonging to the United States; and the words "United States" shall be construed to include the district and territories. See Michigan Laws 8.3o
- Statute: A law passed by a legislature.
- Testify: Answer questions in court.
(3) The privilege described in subsection (2) does not extend to any of the following regardless of whether or not they are included within an environmental audit report:
(a) Documents, communication, data, reports, or other information required to be collected, maintained, or made available or reported to a regulatory agency or any other person by statute, rule, ordinance, permit, order, consent agreement, or as otherwise provided by law.
(b) Information obtained by observation, sampling, or monitoring by any regulatory agency.
(c) Pretreatment monitoring results which a publicly owned treatment works or control authority requires any industrial user to report to a publicly owned treatment works or control authority, including, but not limited to, results establishing a violation of the industrial user’s discharge permit or applicable local ordinance.
(d) Information legally obtained from a source independent of the environmental audit or from a person who did not obtain the information from the environmental audit.
(e) Machinery and equipment maintenance records.
(f) Information in instances where the privilege is asserted for a fraudulent purpose.
(g) Information in instances where the material shows evidence of noncompliance with state, federal, regional, or local environmental laws, permits, consent agreements, regulations, ordinances, or orders and the owner or operator failed to either take prompt corrective action or eliminate any violation of law identified during the environmental audit within a reasonable time, but not exceeding 3 years after discovery of the noncompliance or violation unless a longer period of time is set forth in a schedule of compliance in an order issued by the department of environmental quality, after notice in the department’s calendar, and following the department’s determination that acceptable progress is being made.
(4) Except as otherwise provided in this part, a person who conducts an environmental audit and a person to whom the environmental audit results are disclosed shall not be compelled to testify regarding any information obtained solely through the environmental audit which is a privileged portion of the environmental audit report. Except as otherwise provided in this part, the privileged portions of an environmental audit report are not subject to discovery and are not admissible as evidence in any civil or administrative proceeding.