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Developed and maintained by the Division of Legislative Automated Systems.
1995 SESSION
LD3773152Be it enacted by the General Assembly of Virginia:
1. That the Code of Virginia is amended by adding in Title 10.1 a chapter numbered 11.2, consisting of sections numbered 10.1-1193 and 10.1-1194 as follows:
§ 10.1-1193. Voluntary environmental assessment privilege.
A. For purposes of this chapter, unless the context requires a different meaning:
"Environmental assessment" means a voluntary evaluation of activities or facilities or of management systems related to such activities or facilities that is designed to identify noncompliance with environmental laws and regulations, promote compliance with environmental laws and regulations, or identify opportunities for improved efficiency or pollution prevention. An environmental assessment may be conducted by the owner or operator of a facility or an independent contractor at the request of the owner or operator.
"Document" means information collected, generated or developed in the course of, or resulting from, an environmental assessment, including but not limited to field notes, records of observation, findings, opinions, suggestions, conclusions, drafts, memoranda, drawings, photographs, videotape, computer-generated or electronically recorded information, maps, charts, graphs and surveys. "Document" does not mean information generated or developed before the commencement of a voluntary environmental assessment showing noncompliance with environmental laws or regulations or demonstrating a clear, imminent and substantial danger to the public health or environment.
B. No person involved in the preparation of or in possession of a document shall be compelled to disclose such document or information about its contents, or the details of its preparation. Such a document, portion of a document or information is not admissible without the written consent of the owner or operator in an administrative or judicial proceeding and need not be produced as a result of an information request of the Department or other agency of the Commonwealth or political subdivision. This privilege does not extend to a document, portion of a document or information that demonstrates a clear, imminent and substantial danger to the public health or the environment or to a document or a portion of a document required by law or prepared independently of the voluntary environmental assessment process. This privilege does not apply to a document or portion of a document collected, generated or developed in bad faith, nor does it alter, limit, waive or abrogate any other statutory or common law privilege.
C. A person or entity asserting a voluntary environmental assessment
privilege has the burden of proving a prima facie case as to the privilege.
A party seeking disclosure of a document, portion of a document, or
information has the burden of proving the applicability of an exception in
subsection B to the voluntary environmental assessment privilege. Upon a
showing, based upon independent knowledge, by any party to: (i) an informal
fact-finding proceeding held pursuant to § 9-6.14:11 at which a hearing
officer is present; (ii) a formal hearing pursuant to § 9-6.14:12; or (iii) a
judicial proceeding that probable cause exists to believe that an exception
listed in subsection B to the voluntary environmental assessment privilege is
applicable to all or a portion of a document or information, the hearing
officer or court may have [ limited ] access to the
relevant portion of such document or information for the purposes of an in
camera review only to determine whether such exception is applicable. The
court or hearing examiner may have [ such limited ]
access to the relevant portion of a document under such conditions as may
be necessary to protect its confidentiality. A moving party who obtains
access to the document or information may not divulge any information from
the document or other information except as specifically allowed by the
hearing examiner or the court.
§ 10.1-1194. Immunity against administrative [ ,
civil, or criminal or civil ] penalties for
voluntarily disclosed violation.
To the extent consistent with requirements imposed by federal law, any
person making a voluntary disclosure of information to a state or local
regulatory agency regarding a violation of an environmental statute,
regulation, permit or administrative order shall be accorded immunity from
administrative [ , civil or criminal or
civil ] penalty under such statute, regulation, permit or
administrative order. A disclosure is voluntary if (i) it is not otherwise
required by law, regulation, permit or administrative order, (ii) it is made
promptly after knowledge of the violation is obtained through a voluntary
environmental assessment, and (iii) the person making the disclosure corrects
the violation in a diligent manner in accordance with a compliance schedule
submitted to the appropriate state or local regulatory agencies demonstrating
such diligence. Immunity shall not be accorded if it is found that the
person making the voluntary disclosure has acted in bad faith. This section
does not bar the institution of a civil action claiming compensation for
injury to person or property against an owner or operator.