In an administrative proceeding before an administrative law judge, the department may seek by motion a declaratory ruling on the issue of whether an environmental audit report is privileged. The administrative law judge shall revoke the privilege granted in Section 48-57-30 to an audit report if the factors set forth in this section apply. In a civil proceeding, the court, after an in camera review, shall revoke the privilege provided for in Section 48-57-30 if the court determines that disclosure of the environmental audit report was sought after the effective date of this chapter, and:

1. (1) the privilege is asserted for purposes of deception or evasion; or

2. (2) even if subject to the privilege provided for in Section 48-57-30:

   1. (a) the material shows evidence of significant noncompliance with applicable environmental laws;
   2. (b) the owner or operator of the facility has not promptly initiated and pursued with diligence appropriate action to achieve compliance with these environmental laws or has not made reasonable efforts to complete any necessary permit application; and
   3. (c) as a result, the owner or operator of the facility did not or will not achieve compliance with applicable environmental laws or did not or will not complete the necessary permit application within a reasonable period of time.

HISTORY: 1996 Act No. 384, Section 26; 2000 Act No. 270, Section 1.