Virginia Administrative Code › Title 9 - ENVIRONMENT › Agency 5 - STATE AIR POLLUTION CONTROL BOARD › Chapter 210 - REGULATION FOR DISPUTE RESOLUTION › Part II - General Provisions › Section 9VAC5-210-80 - Confidentiality

Current through Register Vol. 40, No. 24, July 15, 2024
A. The provisions
				  of § 8.01-576.10 of the Code of Virginia concerning the confidentiality of
				  dispute resolution shall govern all dispute resolution proceedings held
				  pursuant to this chapter except when the board uses or relies on information
				  obtained in the course of such proceeding in issuing a permit or promulgating a
				  regulation. The board shall inform the parties in the order of referral issued
				  under 9VAC5-210-150 what this information
				  is expected to be. If the board later decides that it will need additional
				  information before it can issue the permit or promulgate the regulation, it
				  shall so notify the parties as expeditiously as possible. If any of the
				  information requested by the board would normally be protected by the
				  confidentiality provisions of this section, the parties shall waive that
				  protection when delivering the requested information to the board.
				  Notwithstanding the above, any information qualifying as confidential under the
				  Air Pollution Control Law shall remain confidential.
B. With the exception noted in subsection A
				  of this section, all memoranda, work products, and other materials contained in
				  the case files of a neutral or dispute resolution program are confidential. Any
				  communication made during dispute resolution that relates to the controversy ,
				  including screening, intake, and scheduling a dispute resolution proceeding,
				  whether made to the neutral or dispute resolution program staff, to a party, or
				  to any other person, is confidential. Any party's lack of consent to
				  participate in the dispute resolution process, at any point in the process, is
				  confidential.
C. A written
				  settlement agreement shall not be confidential, unless the parties otherwise
				  agree in writing.
D. Confidential
				  materials and communications are not subject to disclosure in discovery or in
				  any judicial or administrative proceeding except:
1. When all parties to the dispute resolution
				  process agree, in writing, to waive the confidentiality;
2. To the extent necessary, in a subsequent
				  action between the neutral or dispute resolution program and a party to the
				  dispute resolution proceeding for damages arising out of the dispute resolution
				  process;
3. Statements, memoranda,
				  materials, and other tangible evidence, otherwise subject to discovery, which
				  were not prepared specifically for use in the dispute resolution
				  procedure;
4. Where a threat to
				  inflict bodily injury is made;
5.
				  Where communications are intentionally used to plan, attempt to commit, or
				  commit a crime or conceal an ongoing crime;
6. Where an ethics complaint is made against
				  the neutral by a party to the dispute resolution proceeding to the extent
				  necessary for the complainant to prove misconduct and the neutral to defend
				  against such complaint;
7. Where
				  communications are sought or offered to prove or disprove a claim or complaint
				  of misconduct or malpractice filed against a party's legal representative based
				  on conduct occurring during a mediation;
8. Where communications are sought or offered
				  to prove or disprove any of the grounds listed in § 8.01-576.12 of the
				  Code of Virginia in a proceeding to vacate a mediated agreement; or
9. As provided by law or rule other than the
				  Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of
				  Virginia).