EPA Information Requests—Eight Tips for Effective Responses
Don't be surprised if you receive an EPA information request. The COVID-19 pandemic has triggered many changes in EPA practices, and one is the proliferation of information requests. For the last year, whether under Section 114 of the Clean Air Act, Section 308 of the Clean Water Act, Section 104(e) of CERCLA, or Section 3007 of RCRA, EPA staff have often used information requests instead of site visits to collect information for enforcement purposes. Here are eight points to consider in responding to these requests.
- Get the request in writing. EPA information requests are usually written, but they sometimes begin with a phone call. Make sure that you get the request in writing before you respond.
- Request an extension of your time to respond. The EPA typically demands responses within 10 to 30 days but, in our experience, always grants reasonable extensions. If you decide to request an extension, do so early and have a clear and defensible rationale. Begin with a phone call and then follow up with either a written request or confirmation, as the EPA may direct. If you want more than an extra two weeks, offer a rolling production schedule where you provide easy responses early and more difficult ones later.
- Respond as if it were litigation. There may be many reasons that the EPA sends an information request, but often the EPA is looking for evidence of violations. Treat all responses to information requests as if you were responding to discovery in litigation.
- Interpose appropriate objections. Information requests will contain boilerplate instructions that must be read closely. Common instructions include "provide as much information as possible"; "if information or documents … should later become known or available to you, you must supplement your response"; "'Respondent' shall mean the addressee of this Request, the addressee's officers, managers, employees, contractors, trustees, successors, assigns, and agents"; etc. All of these are objectionable, and the response should object to them.
- Tailor your responses to the requests. If the information requests are overbroad and open-ended, then your answers must be precise. For example, if the request calls for "all training records," the response should specify the dates and nature of the records provided rather than a simple "see attached." Otherwise, the EPA may interpret your response as a representation that you have attached all training records of all types from the beginning of time. If the request calls for specific documents, however, then a simple "see attached" may be exactly the right response.
- Take corrective actions as appropriate. Read the documents that you send with an eye to possible enforcement, and promptly correct any issues that you discover. This may not stop enforcement, but it will reduce its consequences and show good faith. The ultimate point of the request is to compel compliance, and the sooner you get there the better.
- Assert claims of confidentiality. Often information requests seek information that companies prefer to keep out of the hands of their competitors. If that happens, pay close attention to the confidentiality procedures in the information request. In some cases, notice in compliance with 40 C.F.R. § 2.203 is sufficient; in other cases, the EPA demands full confidentiality demonstrations at the time of submittal.
- Expect follow-up requests. The first request is rarely the last, so expect follow-up requests and try to anticipate the information that might be requested. If you discover that the follow-up requests might disclose additional issues, it's better to take corrective action before you receive the request.
© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.