(a) In a civil or administrative proceeding, a court of record or administrative tribunal, after an in-camera review, shall require disclosure of material for which the privilege described in § 8-1-303 is asserted if the court or administrative tribunal determines one (1) of the following:
(1) The privilege is asserted for a fraudulent purpose;
(2) The material is not subject to the privilege;
(3) The material is subject to the privilege and the material shows evidence of noncompliance with:
(A) Federal or state law or extensions of such statutes;
(B) Any rule adopted by the Arkansas Pollution Control and Ecology Commission; or
(C) A determination, permit, or order issued by the commission or the Director of the Division of Environmental Quality; and
(4) The person claiming the privilege did not promptly initiate and pursue appropriate efforts to achieve compliance with reasonable diligence.
(b)
(1) If the noncompliance described in subdivision (a)(3) of this section constitutes a failure to obtain a required permit, the person is deemed to have made appropriate efforts to achieve compliance if the person filed an application for the required permit not later than ninety (90) days after the date the person became aware of the noncompliance.
(2)
(A) In the event additional time is required to prepare a permit application, the person shall, within ninety (90) days, submit a schedule to the Division of Environmental Quality that identifies the activities required to complete the application, and, if the schedule is acceptable to the division, the filing of the application pursuant to the submitted schedule shall constitute reasonable diligence to achieve compliance for a failure to obtain a required permit.
(B) Nothing in this section authorizes a facility to operate without the proper permit having been issued.