H. B. 2494
(By Delegates Amores, Thompson, Sprouse, Seacrist,
Farris, J. Martin and Jenkins)
[Introduced February 15, 1995; referred to the
Committee on the Judiciay.]
A BILL to amend and reenact section two, article five, chapter
twenty-nine-a of the code of West Virginia, one thousand
nine hundred thirty-one, as amended; and to amend chapter
fifty-seven of said code by adding thereto a new article,
designated article six, all relating to creating a privilege
from discovery for self-evaluations of facility compliance
with environmental laws and providing exceptions therefor;
ensuring applicability of privilege to administrative
hearings; providing definitions; creating a privilege for
environmental audits and the performance thereof and the
preparation of environmental audit reports; providing
exceptions to the privilege; establishing burden of proof; limiting disclosure; requiring reasonable diligence upon
completion of an environmental audit; maintaining existing
privileges; and limiting waiver of the privilege.
Be it enacted by the Legislature of West Virginia:
That section two, article five, chapter twenty-nine-a of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that chapter fifty-seven
of said code be amended by adding thereto a new article,
designated article six, all to read as follows:
CHAPTER 29A. STATE ADMINISTRATIVE PROCEDURES ACT.
ARTICLE 5. CONTESTED CASES.
§29A-5-2. Rules of evidence; taking notice of facts; correction
of transcript.
(a) In contested cases irrelevant, immaterial, or unduly
repetitious evidence shall be excluded. The rules of evidence as
applied in civil cases in the circuit courts of this state shall
be followed. When necessary to ascertain facts not reasonably
susceptible of proof under those rules, evidence not admissible
thereunder may be admitted, except where precluded by statute, if
it is of a type commonly relied upon by reasonably prudent men in
the conduct of their affairs. Agencies shall be bound by the rules of privilege recognized by law, including those set forth
in article six, chapter fifty-seven of this code. Objections to
evidentiary offers shall be noted in the record. Any party to
any such hearing may vouch the record as to any excluded
testimony or other evidence.
(b) All evidence, including papers, records, agency staff
memoranda and documents in the possession of the agency, of which
it desires to avail itself, shall be offered and made a part of
the record in the case, and no other factual information or
evidence shall be considered in the determination of the case.
Documentary evidence may be received in the form of copies or
excerpts or by incorporation by reference.
(c) Every party shall have the right of cross-examination of
witnesses who testify, and shall have the right to submit
rebuttal evidence.
(d) Agencies may take notice of judicially cognizable facts.
All parties shall be notified either before or during hearing, or
by reference in preliminary reports or otherwise, of the material
so noticed, and they shall be afforded an opportunity to contest
the facts so noticed.
(e) Upon motion in writing served by any party as notice may
be served pursuant to section two, article seven of this chapter
and therein assigning error or omission in any part of any
transcript of the proceedings had and testimony taken at any such
hearing, the agency shall settle all differences arising as to
whether such transcript truly discloses what occurred at the
hearing and shall direct that the transcript be corrected and
revised in the respects designated by the agency, so as to make
it conform to the whole truth.
CHAPTER 57. EVIDENCE AND WITNESSES.
ARTICLE 6. SELF CRITICAL ANALYSIS.
§57-6-1. Legislative intent.
The Legislature hereby finds and declares that protection of
the environment is enhanced by the encouragement of voluntary
compliance with environmental laws and that the public will
benefit from incentives to identify and remedy environmental
noncompliance issues. It is further declared that providing a
protection from forced disclosure of such environmental
self-evaluations will encourage voluntary compliance efforts,
thereby improving environmental quality.
§57-6-2. Definitions.
(a) "Environmental audit" means a voluntary, good faith and
comprehensive evaluation of a facility or facilities, or specific
activities, processes or management systems, or local
counterparts or extensions thereof, or of management systems
related to a facility or activity, that is designed to identify
and prevent incidents of noncompliance and to promote future
compliance with environmental laws. An environmental audit may
be conducted by the owner or operator of a facility, by the
employees of the owner or operator, or by outside consultants or
agents retained by the owner or operator for purposes of
performing such an audit.
(b) "Environmental audit report" means a set of documents
prepared as a result of an environmental audit, including, but
not limited to, sampling results, test results, field notes and
records of observations, findings, suggestions, conclusions,
drafts, memoranda, drawings, photographs, computer-generated or
electronically recorded information, maps, charts, graphs,
surveys, provided that the information is collected or developed
in the course of conducting an environmental audit. An
environmental audit report may include, but not be limited to, the following: (1) Scope and date of the audit and the
information gained in the audit together with exhibits and
appendices, and may include conclusions and recommendations; (2)
memoranda and documents analyzing part or all of the audit report
and discussing implementation issues; and (3) an audit
implementation plan that addressed correcting past noncompliance,
improving current compliance and preventing future noncompliance.
The environmental audit report includes any memorandum,
information, communications or documents discussing part or all
of other environmental audit or implementation of compliance
plans.
(c) "Environmental law" means any federal, state or local
statute, law, ordinance, rule, permit standard, or regulation and
any order, consent decree, judicial or administrative decision or
directive applicable to a facility or the operations of a
facility designed to protect or enhance the land, air or water
for the protection of human health, natural resources or the
environment.
(d) "Facility" means any site, operation or activity that is
subject to regulations or requirements under any environmental law or laws.
§57-6-3. Privilege created, inadmissibility as evidence in any
proceeding.
(a) In order to encourage owners and operators of facilities
to conduct voluntary environmental self-evaluations of their
operations to assess and improve compliance with statutory and
regulatory requirements under environmental law, an environmental
audit privilege is created to protect the confidentiality of
communications relating to any such environmental audits. An
environmental audit report and any materials created in its
development shall be privileged and shall not be admissible as
evidence in any civil, criminal or administrative proceeding, and
shall be exempt from disclosure or discovery in connection with
or in anticipation of any such proceeding, except as provided in
section four of this article.
(b) If the privilege described in this section is applicable
to an environmental audit, the owner or operator, the employees
of the owner or operator, or outside consultants or agents who
engaged in the performance of an environmental audit may not be
examined in any civil, criminal or administrative proceeding as to the content of the audit or any environmental audit report
without the consent of the owner or operator of the affected
facility.
§57-6-4. Privilege inapplicable under certain conditions.
(a) The privilege described in section three of this article
does not apply under any of the following conditions:
(1) The privilege is expressly waived by the owner or
operator of the facility that is the subject of the environmental
audit;
(2) The owner or operator of the facility that is the
subject of the environmental audit seeks to introduce the
environmental audit report as evidence in any civil, criminal or
administrative hearing;
(3) In a civil or administrative proceeding, the court of
record or administrative body, as applicable, after an in camera
or confidential review consistent with all rules of civil and
administrative procedures, may require disclosure of the
otherwise privileged material upon a finding by such court or
administrative body that:
(A) The privilege is asserted for a fraudulent purpose;
(B) The material is not subject to the privilege; or
(C) Even if subject to the privilege, the material shows
evidence of noncompliance with the environmental laws and an
appropriate plan to achieve compliance was not promptly developed
and pursued with reasonable diligence upon the completion of the
audit; or
(4) In a criminal proceeding, a court of record after an in
camera review, may require disclosure of material for which the
privilege is asserted, upon the finding of the court that:
(A) The privilege is asserted for a fraudulent purpose;
(B) The material is not subject to the privilege;
(C) Even if subject to the privilege of section three of
this article, the material shows evidence of noncompliance with
the environmental laws and an appropriate plan to achieve
compliance was not promptly developed and pursued with reasonable
diligence upon the completion of the audit; or
(D) The material contains evidence relevant to commission of
an offense, and the government has substantial and compelling
need for the information, and the information cannot be obtained
from other independent sources.
(b) The privilege described in section three of this article
does not apply to any of the following types of information:
(1) Information that is subject to reporting or availability
requirements under existing permits or environmental laws;
(2) Information obtained by a regulatory agency through its
own observation, sampling or monitoring, or from any source
independent of the environmental audit report; or
(3) Information obtained from a source independent of the
environmental audit.
§57-6-5. Burden of proof.
A person or entity asserting a privilege has the burden of
proving a prima facie case as to the applicability of the
privilege. A party seeking forced disclosure or any information
in an environmental audit report has the burden of proving the
existence of conditions making the privilege under section three
of this article inapplicable.
§57-6-6. Disclosure of only relevant material required.
If any of the information contained in an environmental
audit report or obtained during the course of an environmental
audit is subject to disclosure under this article, only those portions of the environmental audit report relevant to the
applicable proceedings and subject to section four of this
article shall be disclosed.
§57-6-7. Reasonable diligence.
(a) If the noncompliance described in subsection (a),
subdivision (3), paragraph (C) or subsection (a), subdivision
(4), paragraph (C) of section four of this article is caused by
the failure to obtain a required permit, the owner or operator is
deemed to have pursued compliance with reasonable diligence if an
application for the required permit is filed not later than
ninety days after the date on which the owner or operator became
aware of the noncompliance.
(b) Action under an implementation plan, other than actions
requiring a permit as set forth in subsection (a) of this
section, is deemed to be reasonable diligence when it is
completed within two years of the completion of an environmental
audit or such other period as is approved by the government
agency.
§57-6-8. Existing privileges retained.
Nothing in this article shall limit, waive or abrogate the scope or nature of any other statutory or common law privileges,
including, but not limited to, the work product doctrine and the
attorney-client privilege.
§57-6-9. Confidential submission does not waive privilege.
An owner or operator may submit an environmental audit
report or a portion thereof to a governmental agency as a
confidential document without waiving a privilege to which the
owner or operator would otherwise be entitled under this chapter.
NOTE: The purpose of this bill is to encourage compliance
with environmental laws by creating privileged communication and
confidentiality of environmental audits.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§57-6 is new; therefore, strike-throughs and underscoring
have been omitted.