Programmatic 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 PrivileceJimmunity Law 

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

§§ 10.1-1198 and 1 O.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 assessmenL Not protected by the privilege are documents or 

information {1) tbat 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~ opinioDs, suggestions, conclusions, drafts, memoranda, ~ 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. 
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 penalties 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 "Enyirogmental Lgw" 

In the definition of"environmental assessment," Code § 10.1-1198 refers to "environmental 

laws and regulations." As noted in the September 4 letter, "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. 

1 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. 
For this additional reason, the Envirorunental Privilege/Immunity Law does not apply to criminal 

prosecutions or investigations. 

~. Do~uments Required by Law 

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

federally authorized envirorunental programs contain comprehensive monitoring, recordkeeping, 

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. 
Virginias 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 

infonnation addressed here. Public access is withheld only if one of the narrowly coDStl'Ued FOIA 

exceptions or exemptions apply. There is no exception or exemption in FOIA, 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 Privi1qellmmunity Law does not expn:ssly 

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

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

EPA Ml asked about the access of moving parties to documents as contemplated in § 1 O.l1198(C). As provided in that statute, in an administrative or judicial proceedina a movina party 

would be aiven 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§ 10.1·1198(C), whi~ provides for restrictions on that party's use of those documents 

and infonnation. Furthennore. as to§ 10.1-1198, if the fact-tinder in the administrative or judicial 

proceeding concludes that the privilege does not apply, ttu:: 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 environmen~ programs. 
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 aimina1 

enforcement of one of Viqpnia' 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 aDd c:riminal enforcement authority at least as stringent as the federal counterparts. 

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

The term "fedcrallaw" 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. 
~~onorable Becky Norton Dunlop 

The Honorable Robert C. Metcalf 

Randolph L. Gordon 

Thoma;i L. Hopkins 

Attorney General ofVirginia 

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

context.