Senate Bill No. 146
(By Senators Buckalew, Dugan, Boley, Kimble, Helmick,
Deem, Minear, Anderson, Dittmar and Ross)
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[Introduced January 25, 1996; referred to the Committee
on Natural Resources; and then to the Committee on the
Judiciary.]
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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
persons 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 may 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-AUDIT PRIVILEGE.
§57-6-1. Legislative intent.
The Legislature hereby finds and declares that protection of
the environment and occupational health and safety rests principally on the public's voluntary compliance with
environmental, health and safety laws; that voluntary compliance
is most effectively achieved through the implementation of
regular self-evaluative activities such as audits of compliance
status and management systems to assure compliance; and that it
is in the public interest to encourage activities by assuring
limited protection of audit findings and of fair treatment of
those who report audit findings to regulatory authorities.
In order to encourage owners and operators of facilities and
other persons conducting activities regulated under the state's
environmental or occupational health and safety statutes both to
conduct voluntary internal environmental or occupational health
and safety audits of their compliance program and management
systems and to assess and improve compliance with such statutes,
an environmental or health and safety audit privilege is
recognized to protect the confidentiality of communications
relating to such voluntary internal audits.
§57-6-2. Definitions.
(a) "Environmental or health and safety audit" means a
voluntary, internal and comprehensive evaluation of a facility,
or specific activities or operation, 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 or health and safety laws. An environmental or health and safety audit may be
conducted by or on behalf of the owner or operator of a facility,
regardless of whether the environmental or health and safety
audit is conducted by the employees of the owner or operator, or
by outside consultants, contractors or agents retained by the
owner or operator for purposes of performing the audit.
(b) "Environmental or health and safety audit report" means
a set of documents prepared in the course of an environmental or
health and safety audit, labeled and marked as a privileged
document 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 or health and safety audit. An environmental or
health and safety 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; and
(2) An audit implementation plan that addresses correcting
past noncompliance, improving current compliance and preventing
future noncompliance. The environmental or health and safety
audit report includes any memorandum, information, communications or documents discussing part or all of the environmental or
health and safety audit report or implementation of compliance
plans: Provided, That regular inspections or monitoring, or both,
required by rule or permit are not considered part of an audit
report. An environmental or health and safety audit report may
include, but not be limited to, memorandum and documents
analyzing part or all of the audit report and discussing
implementation issues.
(c) "Environmental or health and safety 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 improve workplace safety
and 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 or
health and safety law.
§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 or health and safety self-
evaluations of their operations to assess and improve compliance
with statutory and regulatory requirements under environmental or
health and safety laws, a self-audit privilege is created to protect the confidentiality of communications relating to any
such environmental or health and safety audits. An environmental
or health and safety audit report and any materials created in
its development shall be privileged and may 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 or health and safety 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 or health and safety audit may not be examined in
any civil, criminal or administrative proceeding as to the
content of the audit or any environmental or health and safety
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
or health and safety audit;
(2) The owner or operator of the facility that is the
subject of the environmental or health and safety audit seeks to introduce the environmental or health and safety audit report as
evidence in any civil, criminal or administrative hearing; and
(3) In an administrative or civil proceeding, the court or
administrative body, after an in camera or confidential review
consistent with all rules of civil and administrative procedure,
may require disclosure of the otherwise privileged material upon
a finding by the 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 of section three of
this article, the material shows evidence of noncompliance with
the environmental or health and safety 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 criminal proceeding, the court, 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 or health and safety 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 having probable cause to believe
a criminal offense has been committed based upon information from
a source independent of an audit report and has a 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 or health
and safety laws;
(2) Information obtained by a regulatory agency through its
own observation, sampling or monitoring, or from any source
independent of the environmental or health and safety audit
report; or
(3) Information obtained from a source independent of the
environmental or health and safety audit.
(c) Failure to comply with the review, disclosure or use
prohibitions of section three of this article shall be the basis,
in any civil, criminal or administrative proceeding, for
suppression of any evidence arising or derived from the
unauthorized review, disclosure or use. Likewise, the party
failing to comply with this section shall have the burden of
proving that proffered evidence did not arise and was not derived
from the unauthorized activity.
§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 of any information
in an environmental or health and safety 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 or
health and safety audit report or obtained during the course of
an environmental or health and safety audit is subject to
disclosure under this article, only those portions of the
environmental or health and safety 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 sixty
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 taken
within one year of the completion of an environmental or health
and safety audit or such other period as is approved by the
administrative body.
§57-6-8. Existing privileges retained.
Nothing in this article may 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 or health
and safety audit report or a portion thereof to an administrative
body 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 or health and safety laws by creating
privileged communication and confidentiality of environmental or
health and safety audits.
Article six is new; therefore, strike-throughs and
underscoring have been omitted.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.