By Freedom S.N. Smith
Even the best companies occasionally attract the attention of regulators. Recently, the United States Environmental Protection Agency announced that it will be focusing on addressing noncompliance issues and vigorous enforcement. EPA commonly investigates compliance and potential enforcement with an “Information Request.”
Information Requests are formal, written requests for information related to activities subject to environmental laws and generally seek historic data for different processes and equipment. Information Requests are known as Clean Air Act “Section 114 Requests,” Clean Water Act “Section 308 Requests,” Resources Conservation and Recovery Act “Section 3007 Orders,” and Comprehensive Environmental Response Compensation and Liability Act “Section 104(e) Requests.” While EPA’s authority under these statutes varies, EPA may generally request information about past events as well as require that new data be created.
Because the amount of information sought by EPA can seem overwhelming, consider this approach for your response:
1. Do not ignore the request. EPA has the authority to ask you to provide records. Failure to respond completely, timely and accurately can lead to significant penalties, including fines.
2. Act strategically and involve appropriate personnel. Information Requests often require the recipient to gather and produce information and data that can be years old. Having an action plan and a list of tasks required and resources available will help ensure all EPA requirements are met. A company should engage individuals who understand the company’s operations, equipment or other systems relevant to an Information Request (i.e. corporate, environmental and operations).
3. Engage counsel early. Unless officially told otherwise, you should assume that your business is under investigation and may be subject to fines, penalties or an enforcement action. An experienced environmental attorney can provide advice regarding your rights and responsibilities. Furthermore, counsel can carefully supervise and coordinate the response effort, allowing discussions and strategies for your response to be protected by the attorney-client or work-product privileges.
4. Determine EPA’s authority. Although an Information Request should specify the statutory authority for the request, do not assume that EPA actually has the authority it alleges. Knowing the source and extent of EPA’s authority is imperative in limiting the scope of your response and protecting your business interests.
5. Contact EPA early. Since Information Request responses are generally due within 30 days of receipt, you may need more time to respond. The response time and scope can usually be negotiated if you expeditiously contact EPA in good faith. Preparation for negotiation with EPA is essential. You should be able to articulate your limitations and bases for objections to the scope and timing of the Information Requests. Prior to talking with EPA, it usually helps to have an internal meeting to address the scope of the requests and realistic timeframes for gathering the requested information.
6. Assess and address compliance issues. Analyze the information requested by EPA, applicable permits and conduct a concurrent internal investigation so you can identify any potential noncompliance issues before EPA actually conducts an enforcement activity. For instance, if the Information Request contains multiple questions about a piece of equipment, you should explore why EPA may be interested in that equipment. Investigations may lead to improvements that may help in negotiating with EPA. It is also important to inquire whether similar issues might apply to other facilities within your company. Depending on what is found, a face-to-face negotiation with EPA may be warranted.
Counsel should be included in these actions to ensure that privileged, frank and open discussions regarding compliance occur without having to worry whether any statements will be available to EPA later.
7. Details are important. Information Requests will have detailed instructions on how information is to be produced and what, if any, additional written explanation is required to provide context for submitted data. In many ways, EPA’s requests are like litigation discovery requests. Accordingly, responses should be carefully structured, in light of any facts or circumstances, to address a particular request. Information must also be reviewed to ensure submission will not waive any attorney related privileges or confidential business information rights. Unless deemed confidential business information, everything submitted to EPA can be subject to public information requests. Moreover, information provided as confidential business information may still be released to the public upon request if EPA ultimately finds the information is not confidential.
You should know exactly what you are providing to the EPA and maintain records of your company’s responses. If a subsequent administrative or litigation action results in discrepancies in the company’s position, the discrepancies may be used against the company.
8. Do not respond to verbal requests. Get requests in writing. Without a written request, you risk being accused of failing to fully comply with a verbal request that you may have simply misunderstood.
9. Provide a good-faith response. This is important because a company employee must certify the accuracy of all submitted responses.
10. Maintain awareness. After submitting your response, EPA can ask for follow-up information. EPA can perform on-site facility inspections after receiving consent from the owner or a warrant from a court. In this regard, many facilities have permits that effectively grant EPA consent to perform an inspection. If the Information Requests are related to an enforcement investigation, a formal Notice of Violation may follow your response. EPA can take months or even years to ask for additional information or bring an enforcement action. Alternatively, you may not hear from EPA again regarding this issue.
If you receive an Information Request, remember the involvement of experienced legal counsel, along with thoughtful action, can help your company respond with limited workplace disruption, while simultaneously minimizing legal exposure for failure to properly respond.•
Freedom S.N. Smith is an associate in Ice Miller LLP’s Indianapolis office. She concentrates her practice in the areas of environmental insurance litigation, environmental and toxic tort litigation, product liability and general business litigation. The opinions expressed are those of the author.