Iowa Code 455K.3 – Privilege
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1. Material included in an environmental audit report generated during an environmental audit conducted after July 1, 1998, is privileged and confidential and is not discoverable or admissible as evidence in any civil or administrative proceeding, except as otherwise provided in this chapter. The environmental audit report shall be labeled “ENVIRONMENTAL AUDIT REPORT: PRIVILEGED DOCUMENT”. Failure to label each document within the report does not constitute a waiver of the environmental audit privilege or create a presumption that the privilege does or does not apply.
Terms Used In Iowa Code 455K.3
- Environmental audit: means a voluntary evaluation of a facility or operation, of an activity at a facility or operation, or of an environmental management system at a facility or operation when the facility, operation, or activity is regulated under state or federal environmental laws, rules, or permit conditions, conducted by an owner or operator, an employee of the owner or operator, or an independent contractor retained by the owner or operator that is designed to identify historical or current noncompliance with environmental laws, rules, ordinances, or permit conditions, discover environmental contamination or hazards, remedy noncompliance or improve compliance with environmental laws, or improve an environmental management system. See Iowa Code 455K.2
- environmental audit report: includes supporting information which may include, but is not limited to, the report document itself, observations, samples, analytical results, exhibits, findings, opinions, suggestions, recommendations, conclusions, drafts, memoranda, drawings, photographs, computer-generated or electronically recorded information, maps, charts, graphs, surveys, implementation plans, interviews, discussions, correspondence, and communications related to the environmental audit. See Iowa Code 455K.2
- 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.
- following: when used by way of reference to a chapter or other part of a statute mean the next preceding or next following chapter or other part. See Iowa Code 4.1
- Person: means an individual, partnership, firm, corporation, or association. See Iowa Code 462A.2
- Privilege: means the protections provided in regard to an environmental audit report as provided in this chapter. See Iowa Code 455K.2
- state: when applied to the different parts of the United States, includes the District of Columbia and the territories, and the words "United States" may include the said district and territories. See Iowa Code 4.1
- Testify: Answer questions in court.
- Testimony: Evidence presented orally by witnesses during trials or before grand juries.
- Use: means to operate, navigate, or employ a vessel. See Iowa Code 462A.2
2. A person shall not be compelled to testify in regard to or produce a document included in an environmental audit report in any of the following circumstances:
a. If the testimony or document discloses any component listed in section 455K.2, subsection 3, that was made as part of the preparation of an environmental audit report and that is addressed in a privileged part of an environmental audit report.
b. If the person is any of the following:
(1) A person who conducted any portion of the environmental audit but did not personally observe the physical events of an environmental violation.
(2) A person to whom the results of the environmental audit report are disclosed under section 455K.4, subsection 2.
(3) A custodian of the environmental audit report.
3. A person who conducts or participates in the preparation of an environmental audit report and who has observed physical events of an environmental violation may testify about those events but shall not be compelled to testify about or produce documents related to the preparation of or any privileged part of an environmental audit or any component listed in section 455K.2, subsection 3.
4. An employee of a state agency or other governmental employee shall not request, review, or otherwise use an environmental audit report during an agency inspection of a regulated facility or operation, or an activity of a regulated facility or operation.
5. A party asserting the privilege under this section has the burden of establishing the applicability of the privilege.
6. The privilege provided in this section is in addition to the privilege provided to assistance programs pursuant to section 455B.484A.