COMMONWEALTH of VIRGINIA 

~ichard Cullen AIICrl,., Gtinenll 

Office of tlu Attorney GeneTal 

Richmond 23219 

January 12, 1998 

The Honorable Michael McCabe 

Regional Administrator, Region III 

U.S. Environmental Protection Agency 

841 Chestnut Building 

Philadelphia., Pennsylvania 19107 

Dear Mr. McCabe: 

General Responses Reaarding Virginia's 

Environmental Assessment Privilm and Immunity Law 

900 East Main Slrwet 

Rienl'nCII"'I. Vi9flla 23219 

804 • 78& • 2071 

804 • 371 • 8946 TOO 

We have received EPA's September 4, 1997 letter requesting information regarding 

whether Virginia's Environmental Assessment Privilege and Immunity Law (§§ 10.1-1198 and 

10.1-1199 of the Code of Virginia ("Code")) ("Environmental Privilege/Immunity Law") deprives 

the Commonwealth of adequate authority to enforce various requirements of our environmental 

programs that have been authorized, delegated, or approved by EPA or whose authorization, 

delegation, or approval by EPA is pending (collectively, "Virginia's federally authorized 

environmental programs"). With this letter, I respond to the questions presented in the CrossProgrammatic Enclosure to that letter. As explained fully below, none of Virginia's federally 

authorized environmental programs are subject to the Environmental Privilege/Immunity Law. 

1. Virginia's Environmental Privilecetlmmunity Law 

Virginia's Environmental Privilege/Immunity Law was enacted in 1995 and is found at 

§§ 10.1-1198 and lO.l-1199 of the Code. Section 10.1-1198 provides a privilege that protects from 

disclosure documents and information about the content of those documents that are the product of 

a voluntary environmental assessment. Not protected by the privilege are documents or 

information (1) that are generated or ·developed before the commencement of a voluntary 

environmental assessment; (2) that are prepared independently of the assessment process; (3) that 

demonstrate a clear, imminent. and substantial danger to the public health or environment; or (4) 

that are required by law. '~Document" is defined to include "field notes, records of observations, 

findin~ opiDioas., suggestions, conclusions, drafts, memoranda, drawings, photographs, videotape, 

computer-generated or electronically recorded information, maps, charts, graphs and surveys." Any 

document submitted to the Commonwealth pursuant to its federally authorized environmental 

programs would fall within this definition. See Cross-Programmatic Enclosure, No. 3. As 

discussed below, however, documents (and information about the content of those documents) that 

are needed for civil and criminal enforcement of Virginia's federally authorized environmental 

programs would not be privileged. 
The Honorable Michael McCabe 

January 12. 1998 

Page2 

Section 10.1-1199 provides that immunity from administrative or civil penalty, "[t]o the 

extent consistent with requirements imposed by federal law," may be accorded to persons making a 

voluntary disclosure of information to a state agency regarding a violation of an environmental 

statute. regulation. permit. or administrative order. As explained below, this immunity is not 

available in civil and criminal enforcement of Virginia's federally authorized environmental 

programs. 

z. Non-Applicability of Environmental Privilege/Immunity Law . 

In general, the Environmental Privilege/Immunity Law does not limit the Commonwealth's 

civil and criminal enforcement authority for Virginia's federally authorized environmental 

programs because § 10.1-1198 precludes granting a privilege to documents required by law and any 

immunity accorded under§ 10.1-1199 is conditioned on its being consistent with federal law.' As 

you know, in order to obtain full authorization. delegation, or approval from EPA for any of these 

programs, the Commonwealth is required by federal law to have full authority to enforce those 

programs, both civilly and criminally. As such, all aspects of Virginia's environmental laws and 

regulations that are necessary to implement and enforce Virginia's federally authorized 

environmental programs in a manner that is no less stringent than their federal counterparts are 

necessarily "required by law."2 

Regarding § 10.1-1198, therefore, documents or other information needed for civil or 

criminal enforcement under one of these programs could not be privileged because such documents 

and information are essential to pursuing enforcement in the manner required by federal law to 

maintain program delegation, authorization, or approval. As to§ 10.1-1199, no immunity could be 

afforded from administrative. civil, or criminal ~ties because granting such an immunity would 

not be consistent with federal law, which is one of the criteria for the immunity. Granting 

immunity would be inconsistent with the federal requirement to have full civil and criminal 

enforcement authority, which is necessary for the Commonwealth's programs to remain at least as 

stringent as the federal counterparts. . 

3. Definition of K£nyirogmental Lgw" 

In tbe definition of"environmental assessment." Code§ 10.1-1198 refers to "environmental 

laws and regulations." As noted in the September 4letter, "environmental laws" is not defined in 

§ 10.1-1191. See Cross-Programmatic Enclosure, No. 1. "Environmental laws" would include 

statutes adopted by the Virginia General Assembly to protect Virginia•s environment and the 

1 Accordingly, I will not respond to the questions set forth in Number 1 S of the CrossProgrammatic Enclosure. 

l Any other interpretation would conflict with a variety of general and specific grants of 

authority to state agencies to obtain federal authorizations, delegations, and approvals for 

implementation of environmental programs. 
The Honorable Michael McCabe 

January 12. 1998 

Page 3 

public, mainly in terms of air, water. and waste pollution. "Regulations" would include any and all 

regulations adopted pursuant to these environmental laws. In addition, "environmental laws and 

regulations" includes permits, consent agreements, and orders by virtue of the fact that they are 

issued pursuant to these statutes and regulations. 

4. Criminal Violations 

The Environmental Privilege/Immunity Law applies by its terms only to administrative and 

civil enforcement actions. Thus, it does not provide a privilege from disclosure of docwnents and 

does not authorize immunity to be accorded from prosecution from criminal violations of 

environmental laws, regulations, permits, or orders pertaining to any of Virginia's federally 

authorized envirorunental programs. The Commonwealth retains full enforcement authority to 

·prosecute criminal conduct. As such, the Environmental Privilege/Immunity Law has no effect on 

the activities listed in Number 2 of the Cross-Programmatic Enclosure. A privilege cannot be 

asserted under. § 1 0.1-1198 in any criminal investigation arising under any federally authorized, 

delegated, or approved environmental program for any document (and information about the 

content of such document) that is the product of a voluntary environmental assessment . 

Moreover, as noted above, the Commonwealth retains full authority for criminal 

enforcement because it is a requirement of federal law that Virginia have such authority in order to 

obtain and maintain full authorization, delegation, or approval from EPA for any of these programs. 

For this additional reason, the Environmental Privilege/Immunity Law does not apply to criminal 

prosecutions or investigations. 

5. Do~uments Required by Law 

As noted in Number 8 of the Programmatic Enclosure to the September 4 letter, Virginia's 

federally authorized environmental programs contain comprehensive monitoring, record.keeping, 

compliance certification, and reporting requirements. For this very reason, the phrase "documents 

required by law" in Code § 10.1-1198 renc:lers the privilege provision in that statute inapplicable to 

these programs. L~ the phrase ''to the extent consistent with requirements imposed by 

federal law" in Code § 10.1-1199 renderS the immunity provisions of the statutes inapplicable to 

these programs. 

Similarly, in response to Number 4 of the Cross-Programmatic Enclosure, Code § 10.1-

1198 does not provide a privilege for documents and information required to be collected. 

maintained. reported, or otherwise made available to the Commonwealth by statute, regulation, 

ordinance, permit, order, consent agreement, settlement agreement, or otherwise as provided _by 

law. Accordingly, the privilege in§ 10.1-1198 would not apply to any documents or information 

relevant to noncompliance with Virginia's federally authorized environmental programs. 
The Honorable Michael McCabe 

January 1~ 1998 

Page4 

6. lnvestiptions by DEO 

In response to the inquiry in Number S of the Cross-Programmatic Enclosure, I note that the 

Environmental Privilege/Immunity Law does not impede or adversely affect the Commonwealth's 

authority to investigate possible violations of any program requirement (including any requirement 

of statute, regulation, ordinance. pennit, order. consent agteement, settlement agreement, or as 

otherwise provided by law), as well as the Commonwealth's authority to verify adequate correction 

of any such violations and to inspect and copy any records pertaining to compliance with program 

requirements for the reasons set forth in the introductory paragraphs. 

1. Access of Public to Documents 

The Environmental Privilege/Immunity Law does not impede the public's access to 

documents that are required to be collected, maintained. reported, or otherwise made available to 

the Commonwealth or made available directly to the public under Virginia's federally autborized 

environmental programs. Cross-Programmatic Enclosure, No. 6. 

The Law also does not impede public access to documents and information in the 

Commonwealth's files, whether those documents and information are voluntarily submitted or are 

collected pursuant to Virginia's information gathering authorities. 3 Cross-Programmatic Enclosure, 

No. 7. This is true because the Environmental Privilegcllmm.unity Law does not alter the right of 

Virginia's citizens to acquire any such documents pursuant to the Virginia Freedom of Information 

Act ("FOIA''), Code §§ 2.1-340 et seq. FOIA ensures that the public has ready access to records in 

the custody of public officials and agencies, which would include the types of documents and 

information addressed here. Public access is withheld only if one of the narrowly construed FOIA 

exceptions or exemptions apply. There is no exception or exemption in FO~ however, for 

documents and information claimed as privileged under the Environmental Privilege/Immunity 

Law. The public, therefore, would not be precluded access to documents and information in the 

possession of Virginia's information gathering authorities based upon a claim of privilege under · § 10.1-1198. Further, because the Environmental Privilege/Immunity Law does not expressly 

retain the privilege for voluntarily discl0$ed documents or information, any claim of privilege for 

such documents or information would be waived by such voluntary disclosure. 

EPA t. asked about the access of moving parties to documents as contemplated in § 10.1-

1198( C). AI provided in tbat statute, in an administrative or judicial proceeding a moving party 

would be amn limited access to documents and information claimed as privileged for the purpose 

of proving an exception to the privilege. That limited access is available is consistent with the last 

sentence of § 1 0.1·1198(C), whi~ provides for restrictions on tbat party's use of those documents 

and information. Furthenno~ as to § 10.1-1198, if the fact-tinder in the administrative or judicial 

proceeding concludes that the privilege does not apply, ~ documents or information would be 

3

"Virginia's information gathering authorities" means any agency responsible for the 

administration and enforcement of Virginia's federally authorized environm~ programs. 
The Honorable Michael McCabe 

January 12. 1998 

PageS 

subject to production through the nonnal discovery process. In the administrative crintext, this 

would mean the documents and infonnation would be subject to the provisions of Code§ 9-6.14:13 

of the Virginia Administrative Process Act which authorizes the fact-finder to issue subpoenas 

requiring testimony or the production of books. papers. and physical and other evidence. 

8. Protection for Whistle Blowen 

In Number 9 of the Cross-Programmatic Enclosure~ EPA asks whether Code § 10.1-1198 

conflicts with various federal statutory protections for employee disclosure or ·~bistle blowers" 

provided for public and private employees. The Environmental Privilege/Immunity Law has no 

effect on any such protections. The Law serves only to prevent the Commonwealth from 

compelling a person to produce a document covered by the privilege. It would not sanction an 

employee or other person for disclosing such a document. 

9. Injunctive Relief. CMI Penalties, and Ememency Orden 

Regardina Harmful Ac:tiyities 

As noted above, documents and information that demonstrate a clear, immin~ and 

substantial dariger to the public health or environment are not protected under the Environmental 

Privilege/Immunity Law. Accordingly, Virginia's ability to obtain injunctive relief, civil penaltie5y 

and emergency orders to restrain activities that are endangering or causing damage to public health 

or the environment would not be affected. See Cross-Programmatic Enclosure, No. 10 and No. 12. 

The Commonwealth would not be obstructed in the collection of evidence in such situations 

because the evidence, pursuant to Code § 10.1-1189~ would not be protected under the 

Environmental Privilege/Immunity Law. 

EPA has asked whether voluntary testing that indicated levels greater than regulatory limits, 

but not so high as to be a "clear, imminent. and substantial danger to public health or environment," 

would be privileged. The answer is no. As noted in the introductory section above, documents and 

other information - which would include results of such testing - needed for civil or criminal 

enforcement of one ofVifainia's federal environmental programs would not be privileged because 

they are required by law in order for the Commonwealth to meet the federal requim:nent to have 

full civil and c:riminal enforcement authority at least as stringent as the federal counterparts. 

10. "Federal LaW" MUsed ig Code§ 10.1·1199 

The term "federal law" in Code § 10.1-1199 includes federal statutes, federal common law 

(as decided by federal courts and administrative tribunals), federal regulations, and the Federal 

Rules of Evidence, Civil Procedure, and Appellate Procedure. See Cross-Programmatic Enclosure.. 

No. 11. 
The Honorable Michael McCabe 

January 12, 1998 

Page6 

11. Citizen Suits 

In Nwnber 13 of the Cross--Programmatic Enclosure, EPA inquires whether Code § 10.1· 

1199 would bar civil penalty recovery by citizens pursuant to § 304 of the CAA and § 7002 of 

RCRA. Section 10.1·1199 would not bar citizen suits and civil penalty recovery by citizens 

bringing those suits because the immunity could not be used to defend against an action in federal 

court. That defense is available only in suits brought in Virginia state court. In addition, the 

immunity would not be available because § l 0.1·1199 conditions the use of that immunity on it 

being consisteDt with requirements imposed by federal law. Use of the immunity to preclude the 

imposition of civil penalties in federal citizen suits would not be consistent with requirements of 

federal law.' 

It is the Commonwealth's intention to append this letter to and incorporate it by reference in 

all Attorney General's statements or certifications included in applications for any program tbat is 

to be delegated, approved, or authorized by EPA. Further, we will apprise you if any cbanges in 

Virginia state law alter the conclusions of this letter. Please let me know if you have any questions 

about the above. 

Sincerely yours, 

·~~ 

Richard Cullen 

~~onorable Becky Norton Dunlop 

The Honorable Robert C. Metcalf 

Randolph L. Gordon 

Tho1118$ L. Hopkins 

Attorney General ofVirginia 

4

Virginia law does not provide for citizen suits, so your inquiry does not apply in tbat 

context.