# COMMONWEALTH

# ofVIRGINIA**~ichard** Cullen 

### AIICrl,., Gtinenll Office oftlu Attorney GeneTal Richmond23219 

### January 12, 1998

The Honorable Michael McCabe Regional Administrator, Region III 

### U.S. Environmental Protection Agency 841 Chestnut Building Philadelphia., Pennsylvania 19107

DearMr. McCabe: GeneralResponses ReaardingVirginia's EnvironmentalAssessment 

### PrivilmandImmunity 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 ofthe Code ofVirginia ("Code")) ("Environmental Privilege/Immunity Law") deprives the Commonwealth ofadequate authority to enforce various requirements ofour 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 subjectto the Environmental Privilege/Immunity Law.

1. Virginia's Environmental PrivilecetlmmunityLaw Virginia's Environmental Privilege/Immunity Law 

### was enacted in 1995 and is found at §§ 10.1-1198 and lO.l-1199 ofthe Code. Section 10.1-1198 provides aprivilege thatprotects from disclosure documents and information about the content ofthose 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 ofthe 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 ofobservations,**findin~** opiDioas., suggestions, conclusions, drafts, memoranda, drawings, photographs, videotape, computer-generatedorelectronicallyrecorded 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 aboutthe content ofthose documents) that
are needed for civil and criminal enforcement of Virginia's federally authorized environmental programs would notbe privileged.The Honorable Michael McCabe January 12. 1998 Page2

Section 10.1-1199 provides that immunity from administrative or civil penalty, "[t]o the extentconsistent with requirements imposedby 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 ofEnvironmental Privilege/ImmunityLaw

. 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 aprivilege 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 ofthese programs, the Commonwealth is required by federal law to have full authority to enforce those programs, both civilly and criminally. As such, 

### all aspects ofVirginia'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 "requiredby law."2
Regarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcementunderone ofthese 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 couldbe afforded from administrative. civil, orcriminal**~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 ofK£nyirogmental Lgw"

Intbedefinitionof"environmental assessment." Code§ 10.1-1198 

### refers to "environmental laws and regulations." As noted in the September4letter, "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 Softhe CrossProgrammatic Enclosure.

lAny 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 ofenvironmental programs.The Honorable Michael McCabe January 12. 1998 Page 3

public, mainly in terms ofair, 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 ofthe fact that they are issued pursuant to these statutes and regulations.

4. CriminalViolations

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 ofdocwnents 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 ofthe 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 contentofsuch document) that is the product ofavoluntary environmental assessment

. Moreover, as noted above, the Commonwealth retains full authority for criminal enforcement because it is a requirement offederal law that Virginia have such authority in orderto obtain and maintain full authorization, delegation, or approval from EPA for any ofthese programs. For this additional reason, the Environmental Privilege/Immunity Law does not apply to criminal prosecutions orinvestigations.

5.**Do~uments** Required byLaw

As noted in Number 8 ofthe Programmatic Enclosure to the September4 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 ofthe 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 relevantto 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

### ofthe Cross-Programmatic Enclosure, Inote thatthe 

### Environmental Privilege/Immunity Law does not impede 

### or adversely affect the 

### Commonwealth's authority to investigate possible violations ofany program requirement (including any requirement of statute, regulation, ordinance. pennit, order. consent agteement, 

### settlement agreement, or as otherwise providedby law), as well as the Commonwealth's authority to 

### verify adequate correction ofany such violations and to inspect 

### and copy any records pertaining to 

### compliance with program requirements forthe reasons set forth in the 

### introductory paragraphs.

1. Access ofPublicto 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 

### environmentalprograms. 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 orare collectedpursuantto

### 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 

### VirginiaFreedom ofInformation Act ("FOIA''), Code §§ 

### 2.1-340 

### etseq. 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 ofthe 

### 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 ofVirginia's information gathering authorities 

### based upon a claim ofprivilege 

### 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 ofprivilege for suchdocuments

### orinformationwouldbe 

### waived bysuch

### voluntary disclosure.


### EPA

### t.asked aboutthe 

### access ofmoving parties to documents

### as contemplated in 

### § 10.1- 1198(C). AI provided in

### tbat statute, 

### in an administrative orjudicial proceeding 

### a moving party would be

# amn limited access to 

### documents and 

### information claimed as privileged for the purpose 

### ofproving 

### an exception to

### the privilege. That limited access is 

### available is

### consistentwiththe last 

### sentence of§ 

### 1 0.1·1198(C),**whi~** 

### provides for restrictions on tbat 

### party's use ofthose documents and 

### information.**Furthenno~** 

### as to § 

### 10.1-1198, ifthe fact-tinder 

### in the administrative orjudicial 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 andenforcementofVirginia'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 meanthe documents and infonnation would be subjectto the provisions ofCode§ 9-6.14:13 of the Virginia Administrative 

### Process Act which authorizes the 

### fact-finder to 

### issue subpoenas requiring testimony orthe production ofbooks. papers. and physical and otherevidence.



### 8. Protection forWhistle Blowen

In Number 9 ofthe 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 orotherpersonfor disclosing suchadocument.



### 9. InjunctiveRelief. CMI

### Penalties, and Ememency Orden RegardinaHarmful 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 orcausing damage to public health
ortheenvironment 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 askedwhethervoluntary testing that indicated levels greaterthanregulatory limits, but not so highas to be a "clear, imminent. and substantial dangertopublic healthorenvironment," would be privileged. The 

### answer

### is no. As 

### noted 

### inthe introductory section above, documents and other information

- which would include results of such testing

- needed for civil or criminal enforcement ofone ofVifainia's federal environmental programs would not be privilegedbecause they 

### are required by law in 

### order for the Commonwealth to 

### meet the federal requim:nent to have full civil andc:riminal enforcement authority atleast as stringentas the federal counterparts.

10. 

### "Federal

## LaW" MUsedig 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 ofEvidence, 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 ofthe 

### 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 § 

### l0.1·1199 conditions the 

### use ofthat immunity 

### on it being 

### consisteDt with requirements imposed by federal law. Use ofthe immunity to preclude the 

### imposition ofcivil penalties in federal citizen suits would not be consistent with requirements 

### of federal 

### law.'

It is the Commonwealth's intentionto appendthis 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 

### ifany cbanges 

### in Virginia state 

### law alterthe 

### conclusions ofthis letter. Please let 

### me know 

### ifyouhave any questions aboutthe above. Sincerely yours,

# ·~~ RichardCullen

## ~~onorable Becky

### NortonDunlop 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.