Protecting Your Position When Responding to Clean Air Act Information Requests from EPA

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1 Protecting Your Position When Responding to Clean Air Act Information Requests from EPA Association of Corporate Counsel Laura LaValle May 12, 2016 Laura K. McAfee Beveridge & Diamond, P.C.

2 What Gives EPA the Right? Most statutes give EPA broad authority to collect information to further purposes of the statute. Clean Air Act ( CAA ) 114 Clean Water Act ( CWA ) 308 Resource Conservation and Recovery Act ( RCRA ) 3007(a) Comprehensive Environmental Response, Compensation, and Liability Act ( CERCLA ) 104(e) More specific objectives include: Identifying violations (CAA, CWA, RCRA) Developing rules (CAA, CWA, RCRA) Identifying materials stored/released at site and ability to pay (CERCLA) Focus today: use of information requests in CAA enforcement 2

3 False: Just Tell the Truth And You Won t Get in Trouble. Information requests are frequently Step 1 in enforcement EPA National Enforcement Initiatives (identified enforcement priorities): Begins with standardized requests to select companies NOVs are issued, with invitation to discuss global settlement Early settlements are used to leverage later settlements Individual enforcement Frequently arises from inspection or citizen complaint Less formalized process Purpose is to build an enforcement case This is not an objective compliance assessment Do not be fooled by long delays 3

4 Put Your Best Foot Forward Take requests seriously Information will be used to support NOVs Plan for short response time Obligation to produce is generally limited to information EPA may reasonably require Normal course of business vs. EPA-specified formats Emissions data must always be provided Explain any interpretations, objections, and limitations in written responses or cover letter 4

5 On Your Mark, Get Set, GO! Requests received outside of Legal should be forwarded immediately Once a request is received, do not destroy any potentially relevant documents Legal department should issue a litigation hold including electronic records Identify documents that can be produced quickly, and use those to negotiate extension/phased production schedule 5

6 Let s Get This Party Started Actual production is similar to any big litigation Establish team Outside contractor to assist in-house team? Team lead + specific team member assignments Identify scope of your search Types/locations of documents that may contain responsive information Keepers of the documents in each category who would know? Plan logistics Litigation database vs. hard copies Designate the keeper of documents gathered Establish targeted but flexible schedule 6

7 Success is 99% Perspiration: Preparing the Response Identify objections and limitations to the response Are requests within scope of statutory language? What reasonable constraints can be placed on the inquiry? What terms are vague or require a legal conclusion? Review all documents for relevance/privilege Redact as necessary Prepare written response with objections, qualifications, etc. Iterative process Broader, possibly full team review of written drafts can help ensure accuracy and completeness of information provided 7

8 Certifiable Demand by EPA? EPA will likely demand a certification of truth, accuracy, and completeness of the underlying documents Attests to the truth of the documents contents False certification is grounds for criminal prosecution Can limit ability to rely on subsequently discovered information Clean Air Act does not provide any basis for this kind of certification Choices are to certify, or Object with limited certification or no certification Remember: Any statements made may still be prosecuted as false statements, even without certification All responses must be complete and accurate Object and clarify where necessary to avoid future misunderstandings about scope and intent 8

9 I ve Got a Secret: Confidential Biz Info ( CBI ) Federal law provides a clear right to request protection for CBI 5 U.S.C. 552(b)(4) Penalties may be imposed on agency personnel who violate these rights 18 U.S.C EPA FOIA regulations contain specific provisions for managing CBI 40 C.F.R (basic rules), (statute-specific) Why should you care? Provides opportunity to protect/defend against disclosure Requires EPA to notify you if anyone asks to see the CBI Emissions data are never trade secrets 9

10 Can You Keep a Secret? Any CBI must be identified and marked in initial response, or claim is most likely waived Headers/footers, stamps, cover sheets Confidential documents must usually be sent to a separate address, with a redacted copy sent to the original requestor Information request will provide instructions EPA may follow up and request documentation for CBI claims. Factors in the confidentiality determination include: Public availability Efforts taken to protect confidentiality Harm Any statutory disclosure obligations (beyond the information request) 10

11 I ll Take Potpourri for $300, Alex. Attorney/client privilege protects communications Audit policy opportunities EPA and most state policies no longer apply once an information request is issued May still apply to facilities not covered by the 114 request Compliance assessment Safe to assume that response will generate NOVs Consider conducting internal compliance assessment and risk analysis contemporaneously with document production to prepare for NOVs 11

12 It s Not What You Say, But How You Say It. In addition to supporting EPA enforcement, may be used as admissions by EPA/NGOs Can form the basis for criminal charges Provide your first opportunity to state your case Can communicate that you are knowledgeable and prepared 12

13 Questions? Thank you! Laura LaValle Principal Austin (512)

Legal Quick Hits: Preparing for and Responding to EPA Information Requests

Legal Quick Hits: Preparing for and Responding to EPA Information Requests Laura K. McAfee Beveridge & Diamond, P.C. April 11, 2013 What Authority does EPA Have to Request Information? Most environmental