Senate Bill No. 362
(By Senator Buckalew)
[Introduced February 15, 1995;
referred to the Committee on Natural Resources.]
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
(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.
(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 the 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
(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 laws,
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
(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 an administrative proceeding, the administrative
body after an in camera or confidential review consistent with
all rules of administrative procedure, may require disclosure
of the otherwise privileged material upon a finding by 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 the 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;
(4) In a civil proceeding the environmental audit report
shall be confidential and is discoverable but may not be
admissable in evidence in any civil action arising out of or
relating to matters raised in the environmental audit report.
The admissibility of the report shall be determined by the
court utilizing the criteria set forth in the preceding
(5) 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
(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 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
(1) Information that is subject to reporting or
availability requirements under existing permits or
(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 paragraph (C),
subdivision (3), subsection (a), section four of this article
or paragraph (C), subdivision (4) of said subsection 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
(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
taken within two years of the completion of an environment audit or such other period as is approved by the governmental
§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