GRL
Congress has given USEPA broad powers to request information as part of USEPA’s investigation of compliance with environmental laws and regulations and to further USEPA’s efforts to enforce such laws and regulations. Pursuant to Section 308 of the Clean Water Act (“CWA”), USEPA can require any owner or operator of any point source to provide such information as USEPA “may reasonably require” to investigate compliance with the CWA. See 33 U.S.C. § 1318(a). The Resource Conservation and Recovery Act (“RCRA”) and CERCLA include similar provisions that permit USEPA to request specified information to aid USEPA in its investigation of compliance with the acts and regulations adopted pursuant to the acts. See 42 U.S.C. § 6927(a); 42 U.S.C. § 9604.
Typically, by the time USEPA issues a Request for Information (“RFI”) letter, an investigation of potential violations of the cited environmental laws or regulations is already underway, and it is reasonable to assume USEPA anticipates bringing an enforcement action at some point in the future. Because a company’s response to an RFI letter is often the company’s first formal interaction with USEPA, the response to the RFI letter is critical. This article offers eight steps companies may want to take when responding to an RFI.
1. Hire an Experienced Environmental Attorney
As soon as you receive a RFI from USEPA, you contact an attorney who has experience responding to RFI letters and representing clients in regulatory enforcement actions. RFI letters are almost always precursors to enforcement actions, and your response to the RFI is your first opportunity to formally interact with USEPA. You only get one chance at a first impression, and an experienced environmental attorney can help start things off on the right foot with USEPA. An experienced attorney should be able to: (1) help you identify and assemble the information requested by USEPA; (2) negotiate with USEPA regarding the scope of the RFI and the deadline for responding to the RFI; (3) raise appropriate objections to the RFI requests; and (4) assist in adopting the proper tone for the RFI response. An experienced environmental attorney should also be able to: (1) advise you regarding the potential violations being investigated and potential defenses; (2) assist with your internal investigation of potential violations; (3) defend you in any future enforcement action; and (4) if appropriate, negotiate a settlement (or administrative order on consent) with USEPA.
2. Hire an Environmental Engineer
You or your attorney should also consider hiring an experienced environmental engineer. Like an experienced environmental attorney, an experienced engineer can be invaluable in responding to an RFI request from USEPA. The engineer should have experience assisting clients with RFI responses and also in assisting clients with responses to regulatory enforcement actions. Engineers can help: (1) investigate facts relevant to an claims likely to be asserted by USEPA in a subsequent enforcement action (for example, soil, groundwater or surface water testing and analysis); (2) develop or assemble other information that you may need to fully respond to USEPA’s request for information; (3) advise clients on potential remedial options and the likely costs of such remedial actions; and (4) share their own insight and experiences when dealing with USEPA with you.
3. Get More Time
RFI letters include a deadline by which the requested information must be provided to USEPA. The time provided to respond in the RFI is typically far too short in light of the amount of information requested and the effort required to assemble, review and produce the information to USEPA. Accordingly, after reviewing the RFI and evaluating the time necessary to assemble and review the requested information, you should ask USEPA for additional time to respond to the RFI if needed. In my experience, USEPA has been willing to agree to reasonable requests for additional time to respond to its RFIs. This has included permitting a respondent to produce information on a “rolling basis” as the information is assembled and reviewed.
4. Take Steps to Preserve the Requested Information
When you receive a request for information, you should take reasonable steps to preserve any documents or electronic information that may be responsive to requests included in the RFI. Reasonable steps may include:
(1) identifying key individuals who may have relevant information and ensuring that their documents and electronic records, e.g., computer files and e-mails, are preserved;
(2) notifying key individuals about the obligation to preserve information that may be relevant to USEPA’s request;
(3) preserving the records and electronic information of any former employees who may have relevant information;
(4) suspending automated or routine document and record destruction practices; and
(5) preserving data stored as part of any back-up process,including back-up tapes, back-up servers or other back-up storage devices.
5. Assert Reasonable Objections
In some instances, USEPA’s requests may be overly broad, unduly burdensome, seek information that is duplicative of other requested information or be otherwise objectionable. You should feel free to object to the requests or indicate that you are providing a limited response to USEPA’s requests. In my experience, well-founded objections have been well-received by USEPA, particularly when clients demonstrate that they have diligently worked to provide responses to USEPA’s other requests.
I encourage clients not to take the same approach to objections to a RFI as many clients and attorneys take when responding to written discovery requests in litigation. In my view, an aggressive approach to objections sets the wrong tone and may get things off on the wrong foot with USEPA.
6. Adopt the Right Tone in Your Response
Your RFI response may be the first formal interaction you will have with USEPA, and it is critical to adopt the right tone in your response. I encourage clients to adopt a cooperative tone in their RFI response. This does not mean that clients should not raise appropriate objections or otherwise stand their ground when appropriate. It means that objections and other responses should be limited to reasonable and well-founded objections that are raised respectfully in a context indicating the client's wiliness to provide reasonable responses in response to USEPA's request for information.
In responding to a RFI, you should keep in mind that this is not civil litigation. In litigation, parties battle on a relatively level playing field and the decision-maker is a neutral judge, jury or arbitrator. In contrast, modern regulatory agencies have the power to act as judge, jury and executioner. As Chief Justice Roberts recently explained, as a practical matter, modern administrative agencies “exercise legislative power, by promulgating regulations with the force of law; executive power, by policing compliance with those regulations; and judicial power, by adjudicating enforcement actions and imposing sanctions on those found to have violated their rules.” City of Arlington, Texas v. FCC, (J. Roberts dissent). As a result, it is rarely, if ever, in your best interest to adopt a hostile or overly adversarial tone in your initial response to USEPA.
7. Have Your Attorney Call the Designated Point of Contact for the RFI
RFIs include contact information for the attorney or other person at USEPA responsible for the RFI. I recommend that you try to set up an initial phone call with the USEPA attorney soon after receiving the RFI. This initial phone call serves a number of purposes. First, the call is your first opportunity to demonstrate my clients’ commitment to responding to the RFI and to cooperate with USEPA in providing a response. Second, the call provides an opportunity to get an even better sense of “the lay of the land” with respect to USEPA’s investigation. USEPA attorneys are typically willing to discuss the RFI and also other information relevant to their investigation, including the violation or violations being investigated. During this or subsequent phone calls, the attorney may shed light on the impending enforcement action or remedies USEPA will likely seek in the enforcement action. The earlier your clients get this information, the better.
8. Anticipate and Prepare for an Enforcement Action
RFIs are often precursors to regulatory enforcement actions. Accordingly, once you get an RFI you should expect an administrative enforcement action will be forthcoming and take any steps necessary to prepare for the impending enforcement action. A good first step, and one that demonstrates good corporate environmental citizenship, is to take immediate action to cease any existing violations. You should also consider immediate remedial actions if such actions will limit the cost of any future remedial actions likely to be required by USEPA. I also suggest reviewing USEPA’s Policies and Guidance webpage which provides access to national policy and guidance documents regarding USEPA’s enforcement of environmental statutes and regulations. It can be found here.