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 statutes give EPA broad authority to collect information to further the purposes of statute. ~ CAA 114 ~ CWA 308 ~ RCRA 3007(a) ~ CERCLA 104(e) Language is typically broad ( to carry out the objectives of this chapter ) (CWA) ~ Objectives can include: Identifying violations (CAA, CWA, RCRA) Developing rules (CAA, CWA, RCRA) Identifying nature/extent/quantity of materials stored/released at site and ability to pay (CERCLA) Focus today: use of information request in enforcement 2 1
Information Requests in Enforcement Information requests are frequently Step 1 in enforcement ~ Global enforcement (identified EPA enforcement priorities): Begins with standardized information requests to select companies Responses used to craft NOVs NOVs are issued, along with invitation to discuss global settlement Early settlements used to leverage later settlements throughout industry ~ Individual enforcement Less formalized process Frequently arises from inspection or citizen complaint In either case, purpose is to build an enforcement case ~ This is not an objective compliance assessment ~ Always assume your response will lead to an NOV ~ Don t be fooled by long delays 3 Rights and Duties Requests must be taken seriously ~ EPA s authority is broad, and time to respond is short ~ Failure to respond may be penalized ~ Information will be used to support NOVs Responses may be considered admissions in future litigation But obligation to produce is generally limited to information EPA may reasonably require (CAA/CWA) ~ Normal course of busines vs. EPA-specified formats ~ Old computer programs/accessibility constraints ~ Emissions data must always be provided Explain any interpretations, objections, and limitations in written responses or cover letter 4 2
Initial Steps Any requests received outside of Legal should be forwarded immediately ~ Requests typically provide only 30-45 days to respond; immediate action is critical 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 Planning a Response Actual production is similar to any big litigation Establish team ~ Team lead: responsible for coordinating overall production ~ Identify team member responsible for each question Identify scope of review ~ Types/locations of documents that may contain responsive information ~ Keepers of the document in each category who would know? Plan logistics ~ Litigation database vs. hard copies ~ Outside contractors vs. in-house Establish schedule ~ Regular team updates to answer questions ~ Plan for delays/problems 6 3
Preparing a Response Evaluate any limitations on the response ~ Are requests within scope of statutory language? ~ What reasonable constraints can be placed on the scope of review? Identify, object, and explain ~ What terms are vague or require a legal conclusion? E.g., modification = term of art under CAA Review all documents for relevance/privilege ~ Redact as necessary Prepare written response with objections, qualifications, etc. ~ Iterative process: objections can limit scope of review; team review of written response can clarify scope and location of responsive information 7 Specific Issues: Certification 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 ~ Statutes generally do not provide any basis for this kind of certification Object and refuse to sign Object and limit certification Remember: any statements made may still be prosecuted as False Statements, even without certification. ~ Any descriptions must be careful and precise ~ Object and clarify where necessary to avoid future misunderstandings about scope and intent 8 4
Specific Issues: CBI Federal law provides a clear right to request protection for Confidential Business Information (CBI) 5 U.S.C. 552(b)(4) ~ Penalties may be imposed on Agency personnel who violate these rights 18 U.S.C. 1905 ~ EPA FOIA regulations contain specific provisions for managing CBI 40 C.F.R. 2.201-2.215 (basic rules), 2.301-2.311 (statute-specific) Why should you care? ~ Requires EPA to notify you if anyone asks to see the CBI Can provide early warning of potential citizens suits ~ Provides opportunity to defend against disclosure before access is granted Protection is limited to trade secrets and commercial or financial information that is privileged and confidential ~ Emissions data are never trade secrets 9 Specific Issues: CBI 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 other statutory disclosure obligations (outside of information request) 10 5
Other Considerations Use of privilege ~ Attorney/client protects communications ~ Work product immunity pros/cons Audit policy opportunities ~ EPA and most state policies no longer apply once an information request issued ~ May still apply to facilities not covered by initial request Compliance assessment ~ Safe to assume that response will generate NOVs ~ Consider performing internal compliance assessment and risk analysis contemporaneously with document production to prepare for NOVs Can assist with privilege claim 11 Takeaways Take any information request seriously ~ Responses to information requests have formed the basis for criminal charges (False Statements) ~ Response: Will likely form the basis for an NOV May be used as admissions by EPA/NGOs ~ But it also: Is your first opportunity to state your case Can send a message that you are knowledgeable and prepared 12 6