Show me your papers! Responding to EPA Information Requests

Most federal environmental laws authorize the EPA to request information from the regulated community.  These requests have different names depending on the underlying statute: “Section 114 Requests” for the Clean Air Act, “Section 308 Requests” for the Clean Water Act, “Section 3007 Orders” for RCRA, and “Section 104(e) Requests” for CERCLA. Information obtained through information requests can be used for rulemaking, compliance investigations, and enforcement.   Here are some best practices if you receive an EPA information request.

Take the request seriously.  The duty to respond to an EPA information request is mandatory. Failure to respond may result in penalties.

Request an extension as soon as you think you may need one.  Typically, EPA information requests contain a 30-day response deadline.  Gathering the documents and data necessary for a full and accurate response often requires significant time and resources.  At the outset, evaluate how long it will take to prepare the response and, if necessary, request an extension.  EPA is often willing to agree to an extension if the responding party acts in good faith and reaches out to the agency early in the process.  Do not wait until the deadline has almost passed before requesting an extension.

Assess the scope of the information request.  EPA should reference the specific statutory provision under which the information request is issued.   Sometimes EPA seeks information outside of the scope of the statute.   Understanding the legal basis for the request allows a responding party to appropriately limit the scope of its response.  To the extent that a request is overbroad, consider contacting EPA to negotiate limitations regarding the scope of the request.

Clarify ambiguities.  Often the questions posed by EPA are subject to more than one interpretation.  In these cases, the responding party should either seek clarification from the agency or, in its response, state how the ambiguous question was interpreted.

Protect confidential information.  Sometimes information requested includes customer information, process descriptions, trade secrets, or other data that could be used by your competitors.  Unless you take certain steps to protect such confidential information, EPA may disclose the information to third parties.

If it’s not in writing, it didn’t happen.  Do not rely on verbal agreements with the agency.  All modifications to a request and all responses should be in writing to establish a record and to avoid a later allegation that you failed to fully and accurately respond.

Ask, “Why is EPA requesting this information?”  Certain information requests, particularly those related to rulemaking where EPA is trying to obtain data about an entire industry, are relatively innocuous.  But more targeted requests, asking about equipment, changes to a facility, or specific events, are likely a prelude to an investigation or formal enforcement.  These requests should be taken very seriously.

Frame responses to provide an accurate and complete picture.  Generally, the response to an information request is a public document.  Responses should be well thought out in anticipation that they may be used in an enforcement action or appear in a news story.

Respond accurately.  EPA requires a company official to certify the accuracy of a response. Knowingly certifying a false or incomplete response could expose the certifying individual and the company to substantial penalties, including criminal prosecution.  

What about informal information requests?  (Show me your papers, please) Occasionally, EPA will ask a company to answer questions outside of the scope of the formal, statutory information request process.  This is akin to a police officer asking to search your car without probable cause.  In certain, limited circumstances it may make sense to agree to respond to informal requests.  But engaging in an informal dialogue with regulators can be a high-risk endeavor and should be carefully considered.

And the big question, “Do I need a lawyer to respond to an EPA information request?”  Perhaps not.  Some companies respond to EPA information requests without engaging a lawyer.    But involving an experienced environmental lawyer early in the process is often beneficial. The most important advantage of involving an attorney is that it allows the responding company to ask questions, discuss the request, and prepare responses under the protection of attorney-client privilege.  A lawyer can also provide advice on drafting responses, make sure the appropriate steps to protect confidential information are followed, and take the lead in negotiating with EPA.

Chris Smith