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EPA Reduces Regulatory Enforcement Burden, Targets Compliance Assistance

On November 21, 2018, the Environmental Protection Agency’s (“EPA”) Office of Civil Enforcement released a memo detailing new best practices for soliciting compliance and enforcement-related information from regulated entities (“OECA Memo”). In coordination with this agency-wide memo, the EPA Office of Water (“OW”) also issued a memo implementing procedures that are to be used specifically when issuing Clean Water Act Section 308 letters to nine or fewer entities for the purposes of regulating or rulemaking under the Clean Water Act (“CWA Memo”). These directives signal a shift in EPA’s enforcement approach by moving away from burdensome, often adversarial information collection requests toward a more collaborative, compliance assistance approach. Regulated entities should review these best practices to ensure that if they receive a letter, it has been sent in accordance with these new principles and that it has been authorized by EPA headquarters.

Federal environmental laws such as the Clean Air Act and Clean Water Act provide EPA with broad authority to conduct inspections and request information from the regulated community. Specifically, Section 114 of the Clean Air Act and Section 308 of the Clean Water Act allow EPA to require regulated entities to submit information on a one-time basis, periodically, or continuously. EPA exercises this authority by issuing “Section 114” or “Section 308” letter requests to collect information that can be used in a potential rulemaking, investigation or enforcement action. Many of the submissions often end up being used by third parties in litigation. 

Responding to these requests can be extremely burdensome and require considerable resources, including obligating the recipient to conduct testing, generate new data, or hire contractors in order to aggregate the information needed to respond to the request. Furthermore, these requests are exempt from the Paperwork Reduction Act, which generally requires that agencies reduce the burden of federal paperwork on the public. This exemption allows agencies broad authority to request large amounts of information while giving little consideration to the resources, costs, or time required for the company to produce the designated information.

The information collection process has often been criticized for creating an adversarial, rather than collaborative, relationship between federal agencies and the regulated community. In recent years, EPA has expanded its use of information request letters, in some cases issuing them to companies that may have information relevant to an enforcement action, even if the company itself is not a target of the enforcement action. Failure to accurately comply with these requests in a timely fashion can result in civil or criminal penalties.

The new OECA Memo sets out best practices when issuing information requests and works towards establishing a cooperative relationship between EPA and the regulated community. The stated goal is to ensure statutory authority is used appropriately and effectively to collect the information necessary to protect public health and the environment. The memo outlines five best practices EPA Regions and Office of Civil Enforcement Divisions are encouraged to use when issuing compliance and enforcement-related requests. They include 1) obtaining information using the most effective and efficient method; 2) minimizing transactional costs for both the recipient and the government; 3) using the appropriate tone in the request; 4) clearly communicating what is requested, the process for responding, and opportunities for the recipient to ask questions; and 5) giving the recipients a reasonable amount of time to respond. These best practices aim to provide consistency across EPA Regions, improve certainty for the regulated community, and allow EPA to collect the information it needs for regulatory compliance and enforcement.

The OW memo emphasizes early engagement with stakeholders prior to issuing a Section 308 letter. The memo requires that Section 308 letters be used as a “last resort” when the agency has been unable to obtain the information through early, informal stakeholder engagement and collaboration. These procedures mark a dramatic change in previous EPA procedures of sending an information request with a deadline, with little to no previous engagement with the recipient. In order to make sure that Section 308 letters seeking rulemaking information are sent only when necessary, senior EPA management will be required to approve any Section 308 letter sent out for this purpose.

These new information collection procedures reduce paperwork, administrative burden, and costs often faced by recipients. Further, the new process works towards establishing a collaborative and cooperative relationship with the regulated community that will assist EPA in achieving its mission of protecting the public health and the environment. With these new procedures in place, regulated entities should familiarize themselves with these procedures and be prepared to provide information to EPA promptly in the event an information request letter is received.

Clark Hill attorneys are experienced in working with clients to develop effective legal strategies and advocacy approaches to address regulatory and deregulatory initiatives. For more information, please contact Karen C. Bennett at kbennett@clarkhill.com | (202) 572-8676,  Jane C. Luxton at jluxton@clarkhill.com | (202) 572-8674, Kenneth von Schaumburg at kvonschaumburg@clarkhill.com | (202) 772-0904, Amanda L. Tharpe at atharpe@clarkhill.com | (202) 772-0913, or another member of Clark Hill's Environment, Energy & Natural Resources practice group.