§ 25-21,259.Environmental audit; admissible as evidence; when.

Section 25-21,259 is where the environmental-audit privilege can give way in court. A court of record can admit the audit into evidence in a civil or administrative proceeding, or in a local-ordinance enforcement proceeding, if it finds any of three things. The first has two parts: the audit shows the person it was prepared for was not, or is not, in compliance with an environmental requirement, and that person failed to start appropriate efforts toward compliance, or failed to complete in good faith a necessary permit application promptly after discovering the noncompliance — so that compliance or the permit application will not happen within a reasonable time.

The second circumstance covers misuse of the privilege itself: the audit becomes admissible if the protection is being asserted for a fraudulent purpose, or if the audit was prepared to avoid disclosure of information in an investigative, administrative, or judicial proceeding that was already underway, imminent, or one the person had received written notice was starting. The third covers severity: an audit is admissible if it shows violations likely to cause, or that have caused, a significant adverse impact on public health or the environment, or if it shows water contamination.

Subsection (2) gives a company facing multiple violations a way to satisfy the first circumstance’s compliance-efforts requirement: by demonstrating to the court that it has instituted a comprehensive program with a phased schedule of actions to bring it into compliance with all the environmental requirements at issue, rather than addressing each violation piecemeal.