The U.S. Environmental Protection Agency
Office of General Counsel
Presents
National Counseling Attorneys Conference (NCAC II)
April 23-25, 2002
Washington, D.C.
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TABLE OF CONTENTS
OGC National Counseling Attorney’s Conference
Radisson Barcelo, Washington, DC
April 23-25, 2002
Agenda (front pouch)
Restaurant List (front pouch)
Evaluation Form (front pouch)
List of Participants
Coordinators Biographies
Topic 1. Interaction with Agency Clients: Living Together
•Speaker Biographies - Lisa Friedman, Gail Ginsberg, Walter Mugdan,
Marcia Mulkey and David Ulirich
‘Memorandums
- Agency Actions Clearly Inconsistent
- Reporting Violations to the Inspector General
Topic 2. Non-Binding Guidance vs. Legislative Rule
‘Speaker Biographies - John Hannon, Barbara Pace and Tim Williamson
‘What Is ‘Guidance” and How Is it Created?
•When Will Courts Let You Challenge Guidance?
‘When Is Guidance Considered a Substantive Rule Requiring Notice and
Comment?
‘Case Studies - Guidance vs. Rule
Topic 3. Spotting Cross-Cutting Issues
‘Speaker Biographies - John Havard, Tad Siegal, Gaylene Vasaturo and
Alan Waits
‘Hypothetical: U Cross-cutting Issues”
‘The National Environmental Policy Act and Environmental Protection
Agency Programs
‘Endangered Species Act Outline
‘National Historic Preservation Act Outline
‘Paperwork Reduction Act Outline
‘Federal Advisory Committee Act Outline
- FACA Question Tree
- Groups Exempt From FACA
- General Requirements of FACA
‘Environmental Justice Outline
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Topic 4. Development and Management of Administrative Records for Rules,
Informal Adjudications, and Non-Binding Guidance
•Speaker Biographies - Marilyn Kuray, Mark Stein and Carrie Wehling
‘Development and Management of Administrative Records
•Hypothetical: ‘The strange case of the State of Laredo, or, everything
you always wanted to know about administrative records* (*but were a
afraid to ask)”
Topic 5. Information Exchange (Electronic and Otherwise) in the National Law
Office
‘Speaker Biographies - Craig Annear and Nancy Marvel
‘Top Ten List of Tools that Effectively Promote Good Communication,
Efficient Collaboration, and Legal Consistency Among the ORCs and
OGC
Topic 6. Judicial Deference
•Speaker Biography - Randy Hill
‘ Chevron : What’s the Deference?
Topic 7. Consultation with Tribes
‘Speaker Biographies - Rich McAllister and Tod Siegal
‘Consultation with Tribes Outline
Topic 8. “You Can Pay [ Attention to] Me Now, or Pay Me Later”: Information
Law at EPA
‘Speaker Biographies - Pat Hirsch, Steven Moores, and Renee Sarajian
‘Background — Basic Legal Authorities Involved In Information Law
‘Discussion Topics
- Ashcroft Memo
- Post-September 11 Use of Exemption 2
- Deliberative Process in Litigation, FOIA and with Congress
- Exemption 5 - States, Tribes and Kiamath
- Touhy
- Record Retention and Everything E! — E-FOIA,
E-record, E-mail, E-reading room
- Confidentiality Issues including Suggested Template for CBI
Determination
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‘Appendices
- Appendix A - Short Guide to FOIA
- Appendix B - Personal Privacy
- Appendix C - Touhv Samples
Topic 9. When State and Federal Law Are Out of Synch
•Speaker Biographies - Mary Beth Gleaves, Gary A. Jonesi, and Rett
Nelson
‘Who Implements and Enforces in Authorized States?
‘What Requirements are Federally Enforceable in States with Authorized
Programs?
‘When Significant Problems Are Alleged in State Program Adequacy -
The “Ohio Review ’ Experience
Topic 10. OGC, ORC and DOJ: Working Together
•Speaker Biographies - Rich Ossias, Manisha Patel, Lee Schroer and Ann
Williams
•Western States Petroleum Association, et al. v. EPA ,
87 F.3d 280 ( 9 th Cir.)
•Puerto Rican Cement ComDanv. Inc. v. EPA ,
889 F.3d 292 (lSt Cir.)
‘Memorandum of Understanding
•Procedures to Improve Coordination before the Environmental Appeals
Board
‘Revised Procedures to Strengthen Enforcement Program’s Advocacy in
Environmental Appeals Board Matters
Alternative Dispute Resolution Law Office Conflict Prevention & Resolution Center
(back pouch)
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2002 NCA C II Participants by Region
Region 1
Jeanhee Hong
Betsy Mason
Jill Metcalf
Mark Stein
Tim Williamson
Ann Williams
Region 2
Phyllis Feinmark
Diane Gomes
Carl Howard
Flaire Mills
Amelia Wagner
Region 3
Diane AjI
Mary Coe
Chris Day
Stephen Field
Susan Hodges
Natalie Katz
Renee Sarajian
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Region 4
Rolando Bascumbe
Wilda Cobb
Craig Higgason
Michi Kono
Peg Kroening
Kevin Smith
Region 5
Ignacio Arrazola
Ann Coyle
Sandra Lee
Jacqueline Miller
Leverett Nelson
Lilian Pinzon
Gary Prichard
Gaylene Vasaturo
Alan Waits
Barbara Wester
Region 6
Bruce Jones
Vickie Johnson
Manisha Patel
Chuck Sheehan
Ragan Tate
Paul Witthoeft
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Region 7
Alex Chen
Belinda Holmes
Pat Miller
Dana Skelley
Jenna Wischmeyer
Region 8
Mike Gleason
Sara Laumann
Steven Moores
Region 9
Jo Ann Asami
Bethany Dreyfus
Ivan Lieben
Nancy Marvel (Regional Counsel)
Ann Nutt
Jeff Wehling
Region 10
Lori Cora
Stephanie Mairs
Juliane Matthews
Rich McAllister
Meg Silver
Julie Vergeront
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OGC/Headquarters ____
Ken Wernick (Alternate Agency Ethics Official)
Anna Wolgast (Principal Deputy General Counsel)
Air and Radiation Law Office (ARLO )
Lea Anderson
Apple Chapman
Carol Holmes
Ccci Kim
Diane McConkey
Richard Ossias ( Deputy Associate General Counsel)
Kerry Rodgers
Rick Vetter
Geoff Wilcox
Alternate Dispute Resolution Law Office (ADRLO )
Cynthia Irmer
Civil Rights Law Office ( CRLO
Wendy Adams
Cross Cutting Issues Law Office (CCILO)
Craig Annear
Mark Kataoka
Marilyn Kuray
Tom Marshall
Barbara Pace
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Finance and Operations Law Office (FOLO )
Wendel Askew
Byron Brown
Leslie Darman
Maria Diamond (Associate General Counsel)
Jim Drummond
Ariadne Goerke
Steve Hess
Pat Hirsch
Susanne Lee
Lucille Liem
Steve Pressman (Deputy Associate)
Laura Scalise
Charles Starrs
Paul Versace
International Environmental Law Office (IELO )
Padmini Singh
Pesticides and Toxic Substances Law Office (P TSL 0 )
Elaine Bueschen
Scott Garrison
Jeffrey Herrema
Susan Krolikowski
Michael Mayer
Andrea Medici
Kevin Minoli
Robert Penis
Robert Wing
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Solid Waste and Emergency Response Law Office
(S VERL 0)
Brian Grant
Sylvia Horwitz
Karan Kraus
Water Law Office (WLO)
David Alnutt
David Gravallese
Randy Hill
Lee Scbroer
Carrie Wehling
Karyn Wendelowski
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COORDINATORS BIOGRAPHIES
CRAIG ANNEAR
Craig Annear is a Senior Counsel in the Office of General Counsel and
part Of the Cross-Cutting Issues Law Office. He serves as OGCs Regional
Counsel Liaison. Craig also provides legal support to the Agency’s
Standards Executive and counsel with respect to the Governments use of
voluntary consensus standards in rulemaking and procurement;
coordinates OGC’s participation with the Department Of Justice in amicus
cases when issues involve two or more media programs; provides general
legal assistance to the Office of Research and Development; and assists the
Associate General Counsel in ensuring Agency review of draft Executive
Orders and Presidential Memoranda.
Craig previously served as Associate General Counsel for the
Management and Administration Division; the Grants, Contracts, and
General Law Division; and the Inspector General Division. He earlier worked
as an Associate General Counsel at the Federal Emergency Management
Agency, the Senior Attorney for the Federal Disaster Assistance
Administration, HUD, and a staff attorney at the Federal Trade Commission.
Craig has a J.D. from the University of Michigan and an A.B. from Cornell
university.
EUDORA BOW HEATH
Eudora came to EPA and 0CC in June of 1990. Her roles included
Confidential Assistant to the General Counsel, Recruitment and Hiring
Coordinator, Training Coordinator, and Conference Coordinator in the
Resource Management Office. Proud to be a native Washingtonian, Eudora
survived her education in Washington’s parochial school system and began
her Federal government career in the Civil Division of the Department of
Justice in 1968. Eudora left DOJ in 1980 to explore life in a corporate law
firm. While in the private sector she served as legal secretary to E. Don
Elliott, who later insisted she follow him to EPA.
in her personal life, Eudora Heath is a newly-wed (not quite 3 years),
the proud parent of three grown children (Felece, Ronald and Olivia), and
two bossy cats (Precious and Jasmine). Eudora is a grateful breast cancer
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survivor and devotes time counseling other breast cancer patients for the
American Cancer Society Reach-to-Recovery program. Eudora is a Bible
college graduate, a children’s church minister and faculty member at the
Bible college, where she teaches ‘Biblical Peacemaking Principles” to adults.
PAMELA HILL
Pamela Hill is the Deputy Regional Counsel for the Environmental
Protection Agency Region I New England Office. She has been with the EPA
since graduating from Boston University School of Law in 1977, first at EPA
Headquarters in Washington and, after 1978, in the New England office.
Prior to assuming responsibilities as Deputy Regional Counsel in 1991, she
was a staff attorney, and for several years a supervising attorney in the
hazardous waste and Superfund areas.
Pam regularly teaches environmental law at Boston University School
of Law; she has also taught at Northeastern University School of Law.
ANDREA MEDICI
Andrea Med ici joined the Pesticides and Toxic Substances Law Office
in 1991 immediately after graduating from Rutgers School of Law-Newark.
She counsels the Office of Prevention, Pesticides and Toxic Substances on
numerous matters arising under the Federal Insecticide, Fungicide and
Rodenticide Act, the Federal Food, Drug, and Cosmetic Act, and the Toxic
Substances Control Act. Andrea serves as a coordinator of OGC’s Summer
Honors Program, and also acted on a detail as the Special Assistant to the
Principal Deputy General Counsel.
Having successfully integrated nearly all aspects of her personal and
professional lives, Andrea is married to an EPA enforcement attorney;
socializes primarily with EPA and other government officials; has enrolled
both of her children in EPA’S on-site daycare center; and practices -
integrated pest management at home on her three cats (1L no flea
collars), who were obtained from one Of her OPP clients.
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BARBARA PACE
Barbara Pace joined the Cross-Cutting Issues law Office (CCILO) of 0CC
in May 2000. Her responsibilities include Administrative Procedure Act
issues, Paperwork Reduction Act, and enforcement issues. She came to
CCILO after spending two years as Chief of the Multi-Media Counseling
Branch in EPA’S Region 6 Office of Regional Counsel. Prior to that, she was
the Assistant General Counsel for RCRA in occ. she was a staff attorney in
0CC for more than ten years, handling primarily RCRA, pesticides, toxics
and enforcement. She is a recipient of the General Counsel’s Award for
Excellence. Barbara was an Associate at the law firm of Hogan and Hartson
in 1987-88. She obtained her J.D. from the Yale Law School in 1984 and was
a member of the Yale Law Journal.
MARGARET SILVER
Meg Silver has worked for EPA since 1980. Since moving to Region 10
(please don’t call us Region X!) in 1989, she has headed one of the three
multi-media units in the Office of Regional Counsel. This unit handles
enforcement and counseling work under the Clean Water Act and clean Air
Act. Before that, she worked six years in the Office Of General Counsel,
handling primarily Clean Water Act and Safe Drinking Water Act work, and
some Superfund and RCRA assignments as well. She spent her first 21/2
years at EPA in the Office Of Toxic Substances at EPA Headquarters. She
received the first General Counsel’s Award for Excellence in 1987, an EPA
Gold Medal in 1993, and four EPA Bronze Medals.
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iMPORTANT NOT S=
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Topic I
Interaction with Agency Clients: Living Together
•Speaker Biographies - Lisa Friedman, Gail Ginsberg,
Walter Mugdan, Marcia Mulkey and David Ulirich
•Me mo rand urns
- Agency Actions Clearly Inconsistent
- Reporting Violations to the Inspector General
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TOPIC I BIOGRAPHIES
LISA FRIEDMAN
Lisa Friedman is Currently EPA’S Associate General Counsel for Solid
Waste & Emergency Response, responsible for managing the 0CC law
office that provides legal advice under RCRA, CERCLA, EPCRA, CWA § 311,
and OPA. Lisa has also Served as OGC’s Acting Principal Deputy General
Counsel and Associate General Counsel for Cross-Cutting Issues.
Lisa is a graduate Of Brown University and Harvard Law School. Her
professional activities have included adjunct teaching at George
Washington university Law Center, working as a chair or vice-chair on the
ABA’S Solid & Hazardous Waste Committee, and serving as a member Of the
Environmental Law Reporter’s editorial board.
GAIL C. GINSBERG
Gail C. Ginsberg is the Regional Counsel for the U.S. Environmental
Protection Agency, Region V. She was appointed to that position effective
May 5,1991. MS. Ginsberg is currently on detail to EPA’S Title VI Task Force,
which she chairs. Administrator Christine Todd Whitman announced the
creation Of this national task force on May 31, 2001, in order to address the
Agency’s backlog Of cases filed under Title VI Of the Civil Rights Act Of 1964.
Prior to becoming Regional Counsel, MS. Ginsberg served as an
Assistant United states Attorney for the Northern District Of Illinois for
nearly 12 years. in that position, she handled affirmative and defensive
civil litigation on behalf Of numerous federal agencies. Her experience as
an AUSA included both trial and appellate work.
From 1974 until 1979, MS. Ginsberg worked as an attorney in the
Enforcement Division of U.S. EPA, Region V. prom 1977 to 1979, she was
Chief Of the Litigation Support Section within the Enforcement Division.
MS. Ginsberg received a B.A. in political science from Brown
University and received her J.D. from the American University, Washington
college Of Law, she is admitted to the bar in both Virginia and Illinois.
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WALTER E. MUGDAN
Walter Mugclan has served since 1995 as Regional Counsel for Region
2 oi the U.S. Environmental Protection Agency, where he heads a staff Of
about 80 attorneys. Prior to that time, he served as Deputy Regional
Counsel for ten years. He joined EPA Region 2 in 1975 as a staff attorney,
and subsequently served in various supervisory positions in the Office Of
Regional Counsel, including as Chief of units responsible for Superfund,
RCRA, TSCA and the Clean Air Act. lfl 1998 Mr. Mugdan spent eight months
on a temporary detail as Acting Director of Region 2’s Division of
Enforcement and Compliance Assistance, where he managed a staff Of 150
engineers, scientists and field inspectors.
Mr. Mugdan has authored numerous publications on environmental
law topics, particularly with respect to hazardous waste regulation and
remediation. He is a frequent speaker and lecturer on these subjects.
From 1991 to 1997 he was an Adjunct Professor at Pace University Law
School, where he taught a course on Superfund law. Since 1992 Mr.
Mugdan has been the Director Of the U.S. EPA’S annual Trial Advocacy
Institute. M . Mugdan is a member of the Executive Committee Of the New
York State ar Association, Environmental Law Section. He has served as
Co-Chair Of that Section’s Solid & Hazardous Waste Management
Committee (1985-1993); Co-Chair Of the Hazardous Site Remediation
Committee (1993-present); and Chair of the Nominating Committee (1987
and 1990). He earned his J.D. (1975) and his B.A. (1972) from the University
of Michigan in Ann Arbor.
MARCIA E. MULKEY
Marcia E. Mulkey is Director of EPA’S Office Of Pesticide Programs
(OPP). In this position, she is responsible for the overall leadership and
management of the pesticide programs under the authority Of the
Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), and the Federal
Food, Drug and Cosmetic Act (FFDCA), both Of which were amended by the
landmark statute, the Food Quality and Protection Act (FOPA) Of 1996.
Responsible for almost 900 employees and a budget Of about $150 million,
Ms. Mulkey has direct management and operational responsibilities over
EPA’S largest, and conceivably most complex, Headquarters’ programs.
Previously, Ms. Mulkey served as Regional Counsel Of EPA’S Region Ill Office
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in Philadelphia where she presided over the development of several
significant and precedential decisions involving all of the key
environmental statutes. In 1992, Ms. Mulkey Served on an extended detail
to the Inspectorate for the Environment in The Netherlands, and in 1995
she served as Acting Deputy General Counsel Of EPA. A cum laude graduate
Of Harvard Law School in 1976, MS. Mulkey was the Coach of Debating at
Harvard from 1974 to 1976. She graduated cum laude from the University
of Georgia where she received her B.A. in 1967 and M.A. In 1968, both in
Communications.
DAVID A. ULLRICH
David A. Ulirich is the Deputy Regional Administrator for Region 5 Of
the United states Environmental Protection Agency. Along with the
Regional Administrator, he is responsible for leading the Region’s efforts
to work with communities and other partners to solve environmental
problems and achieve a more sustainable environment. The Region gives
special attention to the Great Lakes, the Mississippi and Ohio Rivers, and
other important resources and areas in the upper Midwest. Prior to
assuming his current position, he served as Acting Regional Administrator.
His other previous responsibilities included Director of the Waste
Management Division, Deputy Regional Counsel, Chief of Air Enforcement,
and water enforcement attorney. He also serves as the U.S. Co-Chair Of the
Water Quality Board of the International Joint Commission, working with
Canada on Great Lakes issues. He has worked for EPA since 1973.
Mr. Ullrich worked for the German Interior Ministry on
environmental matters for 6 months in 1985 as part Of an executive
exchange program. His focus was on hazardous waste and enforcement
issues. He also worked with other Western European governments on a
variety of issues.
EPA has recognized Mr. Ulirich’s accomplishments a number Of times
over the years, including the Presidential Rank Award for meritorious
service in the Senior Executive Service, 3 gold medals for exceptional
service, and several bronze medals for a variety Of accomplishments. He
has been directly involved in bringing major environmental improvements
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to many parts Of the region, and has served on numerous national task
forces to increase the effectiveness of EPA’S management and
environmental problem solving approaches.
Mr. Ullrich graduated from Dartmouth College in 1970 with a degree
in English and from the University Of Wisconsin Law School in 1973, with an
emphasis in environmental law. In college, he competed in intercollegiate
track and cross country and is an active runner. He was born and reared in
wausau, Wisconsin, and has lived in Chicago since 1973. Mr. Ullrich is
married to Polly UlIrich, an art critic. They have a son Eric, who was born
in 1990 and is an avid snowboarder, skateboarder, wakeboarder, and
soccer player.
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#“
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
4 pç Ø
July 9, 1992 OFFICEOF
GENE ML COUNSEL
MEMORANDUM
SUBJECT: Agency Actions Clearly Inconsistent
With Legal Requirements
FROM: Raymond B. Ludwiszews i
Acting General Counsel
TO: OGC Attorneys
In our capacity as legal advisors to the Agency, we are
frequently asked by Agency officials and employees to review a
proposed decision or action for legal sufficiency or to
participate in a deliberative process that will lead to an Agency
decision or action. In carrying out any of our activities, I
direct each of you to bring to my attention y proposed decision
or action that is clearly inconsistent with any legal
requirements (especially issues implicating criminal laws) and
that is being given serious consideration. Whenever we conclude
that any proposed decision or action is clearly either legally
indefensible or a violation-of law, we must communicate
unequivocally our advice to the appropriate management officials.
In addition, if you believe that adequate corrective action is
not taken to remedy the problem, you must inform me so that I can
take the appropriate steps t.o elevate the issue within the Agency
to ensure compliance with the law.
If you become aware of any criminal or conflict of interest
violation, you have a responsibility to report it to me or if
necessary directly to the Office of Inspector General. See also
attached Ethics Advisory 91-7.
In my absence, you should contact the Principal Deputy
General Counsel if you are in need of guidance related to this
memorandum.
Attachment
Fruited on Recycled Paper
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i O S14p
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C 20460
JUL 121991
GENERAL COUNSEL
EPA Ethics Advisory 91—7
SUBJECT: Reporting Violations to the Inspector General
FROM: Gerald H. Yamada
Principal Dep eneral icn’sei
Designated Agency Ethics Tidal
TO: Deputy Ethics Officials
The purpose of this Ethics Advisory is to remind
supervisors that employees are instructed to report known or
suspected violations of law or fraud, waste and abuse to their
supervisors. The supervisors must then report the suspected
violations to the Office of the Inspector General. In addition,
supervisors, like other employees, should report to the Office of
the Inspector General any suspected violations of law or fraud,
waste and abuse which they discover independent of reports from
their employees.
Paragraph 2.b., Chapter 3, of EPA manual 6500, “Functions
and Activities of the Office of the Inspector General” (January
22, 1985) states:
All employees of the Agency, within the limits of
their authority and duties, are responsible for (1)
fostering the enforcement of laws, executive orders,
regulations, and other applicable directives; (2)
maintaining high standards of ethical conduct; and (3)
promoting efficiency and effectiveness in the
administration of the Agency’s programs and
activities.
These responsibilities require that all employees
promptly report instances of and information on any
known or suspected violation of law, rules, or
regulations; mismanagement; gross waste of funds;
abuse of authority; or substantial and specific danger
to the public health and safety. Employees should
report such instances to their supervisors, or if
necessary directly to the Office of Inspector General
(see paragraph 6 of this chapter). (Emphasis added).
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The identity of a supervisor who reports a complaint or
information received from his or her employee is not entitled to
confidentiality by the Office of the Inspector General. However,
if a supervisor becomes aware of suspected violations of law or
fraud, waste and abuse independent of his or her official
capacity, the contact with the Office of the Inspector General
will be kept confidential. gg Paragraph 6.a., Chapter 3, EPA
Manual 6500, “Functions and Activities of the Office of
Inspector General” (Jan. 22, 1985).
A copy of the relevant provisions of EPA Manual 6500 is
attached. Please ensure that this Ethics Advisory is widely
distributed among supervisors in your organizations.
Attachment
cc: Office of Government Ethics
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iI 1PORi T NQT St
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Topic 2
Non-Binding Guidance vs. Legislative Rule
•Speaker Biographies - John Hannon, Barbara Pace and
Tim Williamson
‘What Is “Guidance” and How Is it Created?
‘When Will Courts Let You Challenge Guidance?
‘When Is Guidance Considered a Substantive Rule
Requiring Notice and Comment?
‘Case Studies - Guidance vs. Rule
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TOPIC 2 BIOGRAPHIES
JOHN HANNON
since September 1995, JOhn Hannon has been an Assistant General
Counsel In the Air and Radiation Law Office of the Office of General
Counsel. He leads a group of lawyers responsible for counseling and
litigation under Title II Of the Clean ir Act and related provisions, and a
group of lawyers responsible for counseling and litigation involving the
NAAQS provisions Of the Act. He Joined that office as a staff attorney in
December 1990, with his work focused In the areas of mobile sources,
ozone depleting substances, and radiation. prom 1985 to 1990 he was an
attorney-advisor in the Office of Mobile sources in the Office of Air and
Radiation, where he participated In a wide variety of rulemakings and
administrative enforcement actions. Prior to joining EPA, he worked for
several years in legal aid and related organizations in Washington, D.C. He
received his J.D. from Georgetown University Law center, and his B.A. from
Cornell University.
BARBARA PACE
Barbara race joined the Cross-Cutting Issues Law Office (CCILO) Of OGC
in May 2000. Her responsibilities include Administrative Procedure Act
issues, Paperwork Reduction Act, and enforcement issues. She came to
CCILO after spending two years as Chief of the Multi-Media Counseling
Branch in EPA’S Region 6 Office of Regional Counsel. Prior to that, she was
the Assistant General Counsel for RCRA in OGC. She was a staff attorney in
OGC for more than ten years, handling primarily RCRA, pesticides, toxics
and enforcement. She is a recipient of the General Counsel’s Award for
Excellence. Barbara was an Associate at the law firm Of Hogan and Hartson
in 1987-88. she obtained her J.D. from the Yale Law School in 1984 and was
a member of the Yale Law Journal.
TIMOTHY L. WILLIAMSON
Tim Williamson serves as a senior attorney with U.S. EPA New
England, Office Of Regional counsel. He is the region’s practice group
leader for Clean Air Act program development counseling, advising on all
aspects of CAA implementation and coordinating air program legal advice
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across the region’s attorneys. Recently, he has also ventured into a variety
Of counseling areas beyond the CAA, including Indian jurisdiction in Maine,
labor relations law, and sensitive FOIA responses. From 1991 to 1993 he got
to be a client, working as a Senior Policy Analyst in the Office Of Air and
Radiation at EPA headquarters. From 1985 to 1991 he worked as an
attorney in what was then EPA’S Region I, enforcing state implementation
plans under the Clean Air Act in the New England states. From 1983 to
1985 he worked at the law firm Of Palmer & Dodge in Boston,
Massachusetts. He received his B.A. magna from Amherst college in 1979
and his J.D. cum laude from the university of Michigan Law School in 1983.
AS an adjunct professor, he has taught an advanced environmental law
seminar on the CM at Boston College and Boston University Law Schools.
Since 1985, he has received a bronze (or one gold) medal each year Of his
service at EPA, a streak which his presentation here should put to rest.
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WHAT IS “GUIDANCE” AND HOW IS IT CREATED?
Barbara Pace, OGC, Cross Cutting Issues Law Office
What is “guidance”?
A. To decide what legal standards apply to a document you are drafting, you
need to decide what types of statements the document contains. Some
statements are categorized as “rules” under the APA. A “rule” is “an
agency statement of general or particular applicability and future effect.”
B. Under section 553 of the Administrative Procedure Act, notice and
comment rulemaking requirements do not apply:
“(A) to interpretative rules, general statements of policy, or rules of
agency organization, procedure, or practice.”
C. In the case law, the line between these activities, often labeled
“guidance,” is less than clear. Agency policy or interpretive guidance may
be in the form of “guidance documents” generated by EPA program
offices. But the same issues may be raised by statements in any format
Examples of formats that courts have reviewed include preambles,
internal staff manuals, application instructions, enforcement policies,
memos from program offices to the Regions, letters from program offices
or Regions to states or other parties, interagency MOAs, notices of
violation, and draft policies.
What distinguishes nonbinding policy or interpretive guidance from a
substantive rule subject to rulemaking requirements?
A In drafting guidance, one can apply the following definitions in
determining whether a statement is a substantive rule.
B. Substantive (or “legislative” rules)
1. Substantive rules are “rules, other than organizational or
procedural. . . issued by an agency pursuant to statutory authority
and which implement the statute.” Attorney General’s Manual on
the Administrative Procedure Act at 30 n.3 (1947). Substantive
rules are issued by an agency pursuant to statutory authority to
implement the statute.
2 A substantive rule has the force and effect of law and is legally
binding on the public and the agency in the same way as a statute.
American Mining Congress v. Mine Safety & Health Administration ,
995 F.2d 1106, 1109 (D.C. Cir. 1993). A substantive rule modifies
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or adds to an existing legal norm, based on the agency’s own
authority. It supplements a statute by resolving inconsistencies or
filling in gaps, rather than simply construing existing requirements.
Syncor Intern Corp. v. Shalala , 127 F.3d 90, 94 & n.5, 95 (D.C.
Cir. 1997).
C. Interpretative rules (“interpretive rules”)
Interpretative rules are “rules or statements issued by an agency to
advise the public of the agency’s construction of the statutes and
rules it administers.” Attorney General’s Manual on the
Administrative Procedure Act at 30 n.3 (1947)
2. An interpretative rule may clarify or explain existing law or
regulations, remind parties of existing statutory duties, or explain
something the statute already requires. In issuing an interpretation
that does not go through notice and comment rulemaking
procedures, the agency does not claim to be exercising its
authority to engage in lawmaking. National Family Planning and
Reproductive Health Ass’n v. Sullivan , 979 F.2d 227, 236-37 (D.C.
Cir. 1992); American Mining Conaress v. Mine Safety & Health
Administration , 995 F.2d 1106 (D.C. Cir. 1993).
3. The distinction between an interpretative rule and a substantive
rule “likely turns on how tightly the agency’s interpretation is drawn
linguistically from the actual language of the statute.” Syncor
Intern. Corp. v. Shalala , 127 F.3d 90, 94 (D.C Cir. 1997).
a. If a statutory or regulatory provision uses very general terms
like “equitable” or “fair” a statement explaining the provision
may be considered substantive rather than interpretive. The
issue is whether the “interpretation” gives content to the
provision, rather than construing the actual meaning of the
provision. See Syncor , 127 F.3d at 94 n.6, Paralyzed
Veterans of America v D.C. Arena L.P. , 117 F.3d 579, 588
(D.C Cir 1997), cert. denied, 523 U.S. 1003 (1998)
4. Courts have held that agency interpretations may have a practical
binding effect on regulated parties. This effect derives from the
statutory or regulatory provision that is being construed. See
American Mining Congress v. Mine Safety & Health Administration ,
995 F 2d 1106 (0 C Cir. 1993) (summarizing effect of
interpretative rules) This does not necessarily mean that the
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interpretation is subject to notice and comment rulemaking
requirements. However, allegations that an interpretation has a
practical impact on regulated parties may increase the likelihood
that it will be found final and ripe for review when it is issued.
5. For purposes of analysis, be sure to identify whether the action
interprets a regulation or a statute, since the standard of review
may differ.
0. Policy statements (“general statements of policy”)
Policy statements are “statements issued by an agency to advise
the public prospectively of the manner in which the agency
proposes to exercise a discretionary power.” Attorney General’s
Manual on the Administrative Procedure Act at 30 n.3 (1947). See
American Mining Congress , 995 F 2d at 1109.
2. A policy statement does not interpret laws or regulations. It informs
the public of the agency’s views, genuinely leaves the agency free
to exercise discretion to change its position in a particular case,
and is subject to challenge in individual cases. The agency must
be prepared to defend both the applicability to the facts of a given
case and the underlying validity of the policy itself. Policy
statements are not binding on the agency or the public.
E. Procedural rules
A procedural rule is a statement adescribing the organization,
procedure, or practice requirements of an agency.” 5 u.s C.
551(4).
2. A procedural rule does not ualter the rights or interests of parties,
although it may alter the manner in which the parties present
themselves or their viewpoints to the agency.” Even a purely
procedural rule can affect the outcome of an agency proceeding,
but agencies have an interest in retaining latitude to organize their
internal operations. Chamber of Commerce v. DOL , 174 F.3d 206,
211 (D.C. Cir. 1999), citing Batterton v Marshall , 648 F 2d 694,
707 (D.C. Cir. 1980) See also National Whistleblower Center v.
NRC , 208 F.3d 256, 262-63 (D.C. Cir. 2000), cert. denied, 531 u.s.
1070 (2001) (agency housekeeping rules may embody judgment
about what mechanics and processes are most efficient without
being considered substantive).
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F Other kinds of statements — Dissemination of information
1. EPA may issue documents containing information not covered by
any of the categories above, such as dissemination of data,
reports, or other information, or recommendations to the public in
areas where EPA lacks statutory authority.
2. The D.C. Circuit has observed that, in general, a government
agency’s publication of material adverse to a party is not agency
action under the APA, and hence is immune from judicial review.
Industrial Safety EcluiDment Ass’n v. EPA , 837 F.2d 1115, 1117-
1119 (D.C. Cir. 1988) (respirator guide not “agency action” subject
to review under the APA).
3 However, courts may sometimes agree to hear claims asking for a
remedy under the APA for the release of the information. These
may include instances alleging that the statement is:
a. a decisional pronouncement that affects legal rights and
obligations
b. designed to penalize otherwise lawful action, e g., by
generating adverse publicity to pressure a party
c. a “sanction” under 5 U.S.C. 551(10) because it is
intentionally false or deliberately generates adverse
publicity that results in a penalty such as a revocation of a
license or destruction of property
d. in conflict with a legal mandate
e. a substantive rule because it changes an existing regulatory
requirement or triggers other regulatory obligations.
See, Industrial Safety , 837 F.2d at 1118-19; Tozzi v.
HHS , 271 F.3d 301, 310-11 (2001) (carcinogen
classification scheme reviewable but upheld as valid
regulatory interpretation)
G When drafting guidance, realize that a document may contain several
types of statements which would be analyzed under different standards.
It may refer to substantive rules or other legally binding requirements,
even though it is not itself a legally binding rule. It may contain policy
statements and interpretations. It may disseminate information such as
technical information, data, descriptions of other actions and events,
analysis, or opinions.
1. When drafting or defending a guidance document, be aware that a
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party can challenge one component of a document. ,
National Association of Home Builders v. COE , 2001 U.S. App.
LEXIS 646 ( 4 th Cir. Jan. 17, 2001) (rejecting argument that
sentence in footnote of guidance memorandum constituted a
legislative rule). Make sure you accurately characterize that
particular portion of the document.
Ill. What procedural requirements apply to substantive rules?
A. Notice and comment rulemaking requirements
1. Under the Administrative Procedure Act, notice and comment
rulemaking procedures apply when an agency issues, amends, or
repeals a rule 5 U S.C. § 553
a. Particular statutes, such as CAA § 307(d), may augment or
substitute for some or all of the procedures in § 553.
2. The agency must provide notice of proposed rulemaking in the
Federal Register or through actual notice. The agency must
provide an opportunity to submit written comments. 5 U S.C. §
553(b).
3 The final rule must contain a concise general statement of basis
and purpose. 5 u.s c. § 553(c). The agency must publish the
final rule in the Federal Register . Publication generally must be at
least 30 days before the effective date, unless the agency for good
cause provides an earlier effective date.
B. Exemptions. APA notice and comment rulemaking procedures do not
apply to the following.
I Rules relating to military or foreign affairs functions, agency
management or personnel, public property, loans, grants, benefits
or contracts. 5 u S.C. § 553(a).
2. Interpretative rules, general statements of policy, and rules of
agency organization, procedure, or practice. 5 U.S.C. § 553(b)(A)
3. Rules for which the agency for good cause finds that notice and
comment are impracticable, unnecessary, or contrary to the public
interest. 5 U.S.C. § 553(b)(B).
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C. Special rulemaking procedures
Direct final rules. A direct final rule is a variation of notice and
comment rulemaking. The agency issues a rule in final form,
without prior notice and comment, that becomes effective on a
particular date unless adverse comment is submitted within a
specified period of time. If the agency receives adverse comment,
it withdraws the direct final rule. In a more streamlined version, the
agency publishes a parallel proposal simultaneously with the direct
final rule and cross-references the proposal in the direct final rule.
If the agency receives adverse comment, it can withdraw the direct
final rule, then finalize the proposal and respond to the comment at
that time.
a. One commentator has observed that direct final rules
generally presuppose that the agency can rely on an APA
exemption from notice and comment rulemaking (e.g., the
ugood cause” exception). However, the “good cause” case
law is quite narrow, and there is a question whether a court
would uphold its application to direct final rules.
Accordingly, OGC and ORCs generally advise program staff
to withdraw a direct final rule if there is a likelihood that it
could be challenged.
2. “Interim final” rules. This term is generally used for final rules
issued without notice and comment that are intended to be of
limited duration. An agency may issue an “interim final” rule to
address an emergency situation, in order to allow enough time to
go through notice and comment rulemaking. The rule would be
“final” in the “interim” between its publication and the Agency’s
decision to revise it or let it stand. A true “interim final” rule is
based on the “good cause” exemption. Generally, a “good cause”
argument, if valid, may support leaving the interim final rule in
place for a short time. If the good cause argument is not valid, or if
the rule stays in place long beyond the original emergency period,
it may be vulnerable to challenge for failure to adhere to APA
rulemaking procedures.
) Administrative requirements for rulemaking - Rulemakings are subject
to a number of administrative requirements including:
Paperwork Reduction Act (collection of information)
2 National Technology Transfer and Advancement Act (voluntary
consensus standards)
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3. Unfunded Mandates Reform Act (federal mandates)
4. Regulatory Flexibility Act (small entities)
5. E 0. 13175 (consultation with tribal governments)
6. EQ. 12866 (0MB review)
7. E.0 13045 (children’s health)
8. E.0. 13132 (federalism)
9. EQ. 12898 (environmental justice)
10. E.0. 13211 (energy)
11. Congressional Review Act (congressional review of final rules)
The latest guidance documents and template language are in EPA’s
regulatory development Web site, at http //intranet epa gov/reg-dev
IV. What EPA procedures apply to issuing guidance?
A. EPA procedures and policies for issuing guidance include the Courtesy
Copy Policy (CCP) and Access to Interpretive Documents Project (AID)
B. The AID Web site makes available to the public policy and interpretive
guidance documents that EPA uses to implement or enforce its statutory
and regulatory programs. The same universe of documents is covered by
the CCP, under which EPA sends copies of its non-binding guidance
documents to Congress and GAO. If a document contains binding legal
requirements, it may have to be submitted to Congress and GAO under
the Congressional Review Act (CRA). A draft EPA Order memorializing
the Agency CC P/AID policy is currently in review.
C. Program office roIe EPA and Regional program offices are responsible
for deciding in the first instance which documents should be included in
AID and CCP.
0. Attorneys’ roleS The role of OGC/ORC is to determine that the document
is non-binding guidance (i.e., that it does not contain any binding legal
requirements), and can go to the Hill under the CCP rather than the CRA
V. How do rules and guidance differ from adjudications?
A. What is an adjudication?
1. The Administrative Procedure Act generally divides agency actions
into two broad categories: rules and adjudications. The APA
merely defines adjudications as the agency process for formulating
an order, with “order” in turn defined as a final disposition in a
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matter other than rulemaking. 5 U.S.C. § 551(6), (7).
a. The D.C. Circuit has expanded on these terms, defining
adjudications as proceedings to determine the rights and
liabilities of individuals. Ass’n of Nat’l Advertisers v.
FTC , 627 F.2d 1151, 1160-61 & n.17 (DC. Cir. 1979), cert.
denied, 447 U.S. 921 (1980).
2 Whether a particular action must be taken through rulemaking is a
matter of congressional intent.
B Why should we care whether an action is an adjudication rather than
a substantive rule? Some thoughts:
1. The Congressional Review Act requires EPA to submit rules (but
not adjudications) to the Hill before they can become effective.
2. Adjudications (but not rules) are subject to due process
considerations, which may include ex parte restrictions for formal
adjudications
3. Non-parties may not have standing to challenge the agency’s order
in an adjudication.
4 Note, however, that if an agency repeatedly takes a particular
position in many individual adjudications, a court may find that the
agency has established a position that cannot be changed without
notice and comment rulemaking. See. e.g., Shell Offshore, Inc. v.
Babbitt , 238 F.3d 622 (D.C. Cir. 2001) (when Interior applied a new
interpretation that reversed the interpretation applied in several
previous adjudications, it was the application of a new substantive
rule requiring notice and comment rulemaking).
C. Why should we care whether an action is an adjudication rather than
an interpretive rule or policy statement? Some thoughts:
1. There may be a better argument that an agency’s interpretation of
a statute should receive Chevron deference if it is the product of an
adjudication rather than an interpretive rule. Some actions may be
difficult to characterize. See. e.g., Mead v. United States
(assuming without deciding that Customs letter ruling classifying
Mead’s day planners as “diaries” under the relevant statutory
definition was interpretive rule).
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2. Orders in adjudications will likely be reviewable. Interpretive rules
and policy statements may not be reviewable.
VI. Has it become a substantive rule? Legal risks arising from implementing
guidance
A. Implementation issues may arise with policy guidance when the Agency
fails to retain its discretion in individual cases.
1. Implementing policy guidance as if it were a substantive rule may
provide a basis for a court to find that the policy is final and ripe for
review and is subject to notice and comment rulemaking even if it
was properly drafted in the first instance.
a. Courts may look at how the Agency applies a policy. The
Agency may treat policy as a substantive rule if it refuses to
respond to comments in the context of a particular case, or
in other ways treats a policy as deciding a particular matter.
See McLouth Steel Products Corp v Thomas , 838 F 2d
1317 (D.C Cir. 1988) (where EPA stated that “comments
would not be entertained” on certain issues, it treated model
as legislative rule that conclusively disposed of certain
issues)
b. Courts may look at the language the Agency uses to
characterize a policy. The Agency may be creating a
substantive rule if it characterizes a policy as a requirement,
e.g., by responding to comments on a proposal with a
statement that a policy “requires” certain actions.
c. The same principles apply to enforcement guidance,
including penalty policies, as to other types of policies. See
Steeltech. Ltd v EPA , 273 F.3d 652 ( 6 th Cir. 2001)
(rejecting argument that EPA treated EPCRA enforcement
response policy as a rule when AU clearly understood she
had discretion to depart from the policy and cited statutory
factors to support decision not to deviate from the policy)
B Implementation issues may arise with interpretive guidance if a court can
conclude that the Agency is coercing regulated parties to comply with the
guidance even when they are not legally bound to comply.
Appalachian Power Co. v. EPA , 208 F.3d 1015 (DC Cir. 2000).
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C The accumulation of statements and actions over time may establish an
agency position that can be reviewed by the courts, even if the statements
taken individually might not be enough to establish a position.
In the absence of evidence that Congress intended to prohibit it, a
court can consider the “cumulative effect of the agency’s actions”
on the petitioner. Ciba-Geigy Corn. v. EPA , 801 F.2d 430, 435 n. 7
(D.C. Cir. 1986). See also NRDC v EPA , 22 F.3d 1125, 1132-
1133 (D.C. Cir. 1994) (considering EPA position set forth in
preamble, Office Director memo to Regions, and Assistant
Administrator letter to NRDC, and considering subsequent
application of interpretation to another party as a factor); Barrick
Goldstrike Mines v. Browner , 215 F.3d 45 (D.C. Cir. 2000) (position
in preamble, guidance, branch chief letter held final); Washington
Legal Foundation v. Kessler , 880 F.Supp. 26, 35 (D.D.C. 1995)
(position in draft policy, warning letters, remarks by high-ranking
officers held final; “the aggregate effect of these acts must be
analyzed to determine whether the agency by its conduct has
objectively demonstrated the existence of such a policy”).
2. There is some case law to the effect that a statement must have a
certain level of formality to be considered as evidence of an
agency’s position. See. e.g, Paralyzed Veterans of America v.
D.C Arena L.P. , 117 F.3d 579, 587 (D.C. Cir 1997) (speech of a
mid-level agency official is not an authoritative agency position
representing formal agency action). However, the degree of
formality is a case-specific decision, and many factors can go into
the determination of the degree of formality.
a. The government itself may tend to undercut the case law on
formality to the extent it takes the position that an agency
position may be represented by an assemblage of informal
statements. See, e.g., United States v American National
Can Co. , No. 98-C-5133 (N.D. III. July 31, 2000) (court
declined to give deference to regulatory interpretation
advanced in government’s pleadings, based on language in
EPA regulatory background document and witness
statements from EPA engineer).
b If you are trying to determine whether EPA has a position on
an issue, you should consider the possible precedential
effects of arguing that the position is established through an
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assemblage of documents.
3. Inconsistent statements may prevent the Agency from enforcing a
requirement to the extent that a party lacks “fair notice.” kg .,
United States v. Hoechst Celanese Corp , 128 F.3d 216, 225 ( 4 th
Cir 1997) (unclear wording in preamble and inconsistent
implementation in Regions deprived facility of fair notice of EPA’s
position).
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WHEN WILL COURTS LET YOU CHALLENGE GUIDANCE?
Finality and Ripeness
Tim Williamson, ORC EPA New England
This outline presents the basic contours of the law of finality and ripeness. For an
excellent, more detailed survey of the law, see Barbara Pace’s draft “Outline of
Guidance Issues.” Jan 12, 2001 (available on the OGC E-Library in the APA section)
I. Finality and Ripeness - Two Separate Conditions for Review
Courts will only hear challenges to final agency actions, and then only when those
challenges are ripe A petition for review must satisfy both conditions. The analysis for
each doctrine overlaps substantially with the other. Understandably then, the facts in
many cases result in identical findings for both the finality and ripeness analysis, that a
matter is both final and ripe or is neither final nor ripe Nevertheless, it is possible for a
court to conclude that a final agency action is not yet ripe for challenge Toilet Goods
Assoc. v. Gardner , 387 U.S. 158, 162-63 (1967); Her Majesty the Queen in Rt of
Ontario v. EPA , 912 F 2d 1525, 1534 (D.C Cir. 1990)
II. Finality - Is the Agency Done Yet?
A. Foundation and Policy Considerations
Finality is a jurisdictional prerequisite for court review of an agency decision in most
cases. American Trucking Assoc. v. EPA , 195 F.3d 4, 8 (D.C. Cir. 1999), reversed on
other grounds sub nom. Whitman v. American Trucking Assoc , -- U.S. —‘ 121 S.Ct. 903
(2001 )(a court must satisfy itself of its own jurisdiction and determine whether an action
is final, even when the government may not have timely raised the issue). Under the
Administrative Procedure Act, courts may review “final agency actions.” 5 U.S.C. §
704. Similarly, the judicial review provisions in the statutes EPA implements generally
provide for judicial review of final actions or promulgated agency rules. See e g., 42
U S C § 7607(b)(1 )(CAA § 307); 42 U.S.C. § 6976(a)(RCRA/SWDA § 7006), 33 U.S.C.
§ 1369(b)(CWA § 509); and 15 U.S.C. § 261 8(a)(TSCA § 19).
The finality requirement assures a court that it is not wasting judicial time and
resources jumping into an issue with a piecemeal review before the agency has had a
chance to complete its own administrative decision making. Courts should not preempt
the possibility that the agency might change its decision or be convinced of the error of
its ways in further administrative deliberations. Moreover, pre-enforcement review risks
circumventing an agency’s choice of enforcement mechanisms “b]udicial review. .
should not be a means of turning prosecutor into defendant.” Dow Chemical v. EPA ,
832 F 2d 319, 324 n 30 (5” Cir. 1987) quoting FTC v SOCALI 449 U.S. 232, 243
(1980).
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B. Finality Analysis
To be final, an action must meet two criteria. First, it must be the consummation of the
agency’s decision making process. Whitman v. Am. Trucking , 121 S.Ct. at 915.
Second, it must determine a party’s rights or obligations, or have legal consequences.
Bennet v. Spear , 520 u.s 154, 177-78 (1997). This is a “flexible and pragmatic”
assessment, where labels on a document do not control. Her Maiesty the Queen , 912
F.2d at 1531. The following are some factors courts have used to assess these
criteria
1 Consummation of Agency’s Decision Making
Final Version Following Prior Drafts
Whitman v Am. Trucking , 121 U S. at 915 where EPA proposed an interpretation of
CM NAAQS implementation requirements, took comment, responded to comments,
and then announced a “ [ fJinal decision” in conjunction with a directive from the White
House, court had “little trouble concluding that this constitutes final agency action.”
Appalachian Power v. EPA , 208 F.3d 1015, 1022 (D.C. Cir. 2000): periodic monitoring
guidance issued after EPA circulated two previous drafts was final.
Is Author Authorized to Sneak for Agency?
Her Maiesty the Queen , 912 F 2d at 1531 -32: EPA argued that the Assistant
Administrator for Air and Radiation was a “subordinate agency official,” but the court
found that he spoke for EPA, especially when he used collective “wee to speak in an
official, not personal capacity.
NRDC v Thomas , 845 F 2d 1088, 1094 (D.C. Cir. 1988). the Director of OAQPS, an
office within OAR, may be a subordinate, but he spoke for the office that controls the
issue of ambient air monitoring and he gave the states “their marching orders” for
monitoring, making his memo a final action.
Consistent Agency Position - EsDecially When We Decline To Change Our Mind
Whitman v Am Trucking , 121 S.Ct at 915: since EPA issued its decision about
NAAQS implementation in 1997, the Agency had explicitly refused to reconsider its
interpretation; EPA’s “own behavior thus belies the claim that its interpretation is not
final.”
Her Ma esty the Queen , 912 F 2d at 1532: EPA maintained an unequivocal position on
meaning of CM section 115 from 1984 through 1990, indicating the interpretation was
final.
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A Series of FinlActions Can be Final
Barrick Goldstrike Mines v. Browner , 215 F.3d 45, 49 (D.C. Cir. 2000): “a preamble
plus a guidance plus an enforcement letter from EPA could crystallize an agency
position into final agency action.
Her Maiestv the Queen , 912 F.2d at 1531: agency inaction can equal action if “inaction
has the same impact on the rights of the parties as an express denial of relief.”
Does It Matter that the Agency Can Change Its Mind ?
Compare:
Dow , 832 F 2d at 323 just because EPA had no intention of changing its interpretation
of a regulation did not make an information request or amended administrative
complaint based on that interpretation a final action;
Appalachian Power , 208 F.3d at 1022-23 but even where EPA specifically announced
in “boilerplate” that its monitoring guidance created no rights and Agency argued in
briefs that its guidance was subject to change, Appalachian court still found the
guidance to be final because it imposed new requirements for air permitting;
Her Maiesty the Queen , 912 F.2d at 1532: EPA’s interpretation was unambiguous and
the record was “devoid of any suggestion that it might be subject to subsequent
revision;” therefore, letter announcing the interpretation was a final action.
2. Rights, Obligations, and Legal Consequences
Mandatory Language
Appalachian Power , 208 F.3d at 1023: “the entire Guidance, from beginning to end
reads like a ukase. It commands, it requires, it orders, it dictates.”
NRDC v. Thomas , 845 F.2d at 1093-94: when an EPA memo referred to block
averaging as “the proper interpretation” of EPA monitoring requirements, rather than as
“a proper interpretation,” the memo was a final action.
Final Opinion v. Reported Data
Bennet , 520 U.S. at 178: a Fish and Wildlife Service biological opinion that imposed
conditions on the release of water to protect endangered species had legal
consequences and was reviewable, unlike the Commerce Secretary’s report of census
data with recommendations
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Litigation Burden Not Necessarily an Obligation
Dow , 832 F 3d at 325: an amendment adding a count to an administrative complaint
was not final action, because the obligation to defend the complaint does “not impose
the kind of legal obligations with which finality doctrine is concerned.”
Ill Ripeness - Is the Issue Ready for the Court?
A. Foundation and Policy Considerations
Ripeness is more a prudential consideration. Courts can decline to review final agency
actions if they are not sufficiently developed to make judicial review constructive at the
time Ripeness has its roots in the constitutional requirement that federal courts can
only review a “case or controversy.” U.S. Const. Art. Ill sec 2 ci. 1. It is possible,
however, for a matter to be sufficiently joined to be a case under Article Ill, but not yet
ripe enough to merit judicial review. NRDC v Thomas , 845 F.2d at 1092-93.
As a practical matter, courts want to be sure that they have an adequate record to
review, especially if an issue raises important factual questions and is not purely legal.
Where the application of a policy might significantly shape its effect and content, it
might waste a court’s time to review that policy in the abstract, prior to seeing how the
agency actually uses it
B. Ripeness Analysis
The ripeness analysis balances two factors. First, is the issue developed to the point
where it is “fit” for judicial review? Second, what hardship would the petitioner suffer if
the court deferred review’? Whitman v. Am Trucking , 121 S.Ct at 91 5-1 6; Abbot
Laboratories v Gardner , 387 U.S. 136, 149 (1967); Toilet Goods Assoc v. Gardner ,
387 U.S. 158, 162-63 (1967). The D.C. Circuit briefly summarizes the history of
ripeness jurisprudence in Clean Air Implementation Proiect v. EPA , 150 F.3d 1200,
1204 (1998)
Note that by statute, Congress can avoid, or at least minimize, the hardship analysis in
the second prong by implicitly finding that any final, fit matter merits judicial review.
Whitman v. Am Trucking , 121 S.Ct. at 916 (statutes such as CM section 307 “permit
‘judicial review directly, even before the concrete effects normally required for APA
review are felt,” quoting Lujan v. National Wildlife Federation , 497 U.S 871, 891
(1990)); Her Malesty the Queen , 912 F.2d at 1533 (finding that CAA section 307(b)
declares Congress’ preference for prompt review); but see CAIP , 150 F.3d at 1204
(“We have not considered [ CM section 307(b)], or like provisions in other regulatory
statutes, as requiring the court to adjudicate issues raised in a preenforcement
challenge to a rule unless those issues are suitable for decision.”)
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1. Fitness for Review - Is the Issue Ready for the Court?
Purely Legal Issue
Abbot Laboratories , 387 U.S. at 149: the Court will decide the purely legal issue
whether Food, Drug, and Cosmetic Act authorizes Food and Drug Administration to
require drug company literature to repeat the generic drug name every time it uses the
proprietary name; “the Government made no effort to justify the regulation in factual
terms.”
Whitman v. Am. Trucking , 121 U.S. at 915: EPA’s interpretation of how to implement
CM NAAQS “is purely one of statutory interpretation that would not ‘benefit from
further factual development of the issues presented” (quoting Ohio Forestry
Assn v. Sierra Club , 523 U.S. 726 (1998))
Appalachian Power , 208 F 3d at 1023 n. 18: the mandate in monitoring guidance was
ripe for review because the issue would not be “more focused in the context of a
challenge to a particular permit”
Record Needs Factual Development
Toilet Goods , 387 U.S. at 163-64: the Court declined to review FDA’s authority to
revoke cosmetic manufacturers’ certifications in the abstract, because a reviewing court
would benefit from seeing the facts surrounding the FDA’s decision to revoke in a
particular case; the basis for a revocation ‘ 1 will depend not merely on an inquiry into
statutory purpose, but concurrently on an understanding of what types of enforcement
problems are encountered by the FDA, the need for various sorts of supervision. . . to
effectuate the goals of the Act, and the safeguards devised to protect legitimate trade
secrets.”
Her Majesty the Queen , 912 F 2d at 1534: EPA’s interpretation that CM section 115
requires a SIP call at the same time as an endangerment finding is a purely legal issue
and ripe; but EPA’s failure to make a finding of endangerment was not ripe because
EPA was still evaluating a complex factual record about the source of air emissions
CAIP , 150 F.3d at 1205: EPA’s CM credible evidence rule was not ripe because the
court could not assess its impact on any of the various 130 reference test methods in
the abstract without seeing what type of evidence might be used under the rule, “An
enforcement action brought on the basis of credible evidence would. . . provide the
factual development necessary to determine whether the new rule has affected
whatever existing standard is involved.”
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2. Hardship - Will the Petitioner Suffer if the Court Defers
Review?
Affecting Day-to-Day Business and the “Hard Choice”
Abbot , 387 U.S. at 152: Court will review labeling regulation when drug manufacturers
must comply or risk prosecution; ‘ [ e]ither they must comply with the every time
[ labeling] requirement and incur the costs of changing over their promotional material
and labeling or they must follow their present course and risk prosecution” (quoting 228
F Supp. at 861).
Whitman v. Am. Trucking , 121 U.S. at 916: “States must -- on pain of forfeiting to the
EPA control over implementation of the NAAQS -- promptly undertake the lengthy and
expensive task of developing state implementation plans.”
Later Review Available
Toilet Goods , 387 U.S. at 165. cosmetics manufacturers can challenge FDA’s
suspension of a certification in a later administrative proceeding, therefore, the Court
need not decide now if FDA has authority to order a suspension; ua refusal to admit an
inspector. . . would at most lead only to a suspension of certification. .
determination that can then be promptly challenged through an administrative
procedure, which is in turn reviewable by a court.’
Sensitive Industry - Reputational Impact of Delayed Review
Abbot , 387 U.S. at 153: it is unreasonable to ask drug manufacturers to wait until the
government prosecutes them for labeling violations before deciding on validity of
labeling regulations; “petitioners deal in a sensitive industry, in which public confidence
in their drug products is especially important.”
Multiple Parties Affected
Compare Abbot , 387 U.S. at 154 with Toilet Goods , id. at 163-64: Court allowed review
when a whole class of drug manufacturers had to comply with labeling regulations
immediately, but denied review when cosmetics manufacturers would lose certification
only one at a time and only if they chose to exclude FDA inspectors from their facility.
Appalachian Power , 208 F.3d at 1023 n. 18: In the CM, Congress gave the D.C.
Circuit authority to review nationally applicable actions, and the court did not want to
defer review of monitoring guidance to individual permitting actions that would be heard
one party at a time in courts across the nation.
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Delay and LitiQation Burden Not Necessarily a Hardship
Toilet Goods , 387 U.S. at 164-65: “no irremediable adverse consequences flow from
requiring a later challenge to this regulation by a manufacturer who refuses to allow this
type of inspection.”
Clean Air Implementation Prolect v. EPA , 150 F.3d 1200, 1205 (D.C. Cir 1998). court
will defer review of a rule permitting the use of credible evidence to prove CM
violations until an enforcement action based on the rule where sources must a.lready
comply with emission limits; “The burden of participating in future proceedings does not
‘constitute sufficient hardship for the purposes of ripeness” (quoting Florida Power &
Light v EPA , 145 F.3d 1414, 1421 (D.C. Cir 1998).
IV. Policies and Interpretations: Practice Tips for Guidance-Givers
o Focus on the substantive impact of what you expect your document to
accomplish. If you need the document you are issuing to force action by
regulated community or the states, odds are you will have a final action
o Avoid mandatory language unless you really need it and mean it.
o Explain how parties who might be affected by a policy or interpretation will have
a chance to challenge its application to them in the future.
o Explain why the burdens parties might bear while they wait to challenge the
policy are reasonable.
o Do not get a pronouncement from higher in the bureaucratic food chain than
absolutely necessary to give the regulated community fair notice of EPA’s
interpretation.
TLWIAflMRIVGCR’ AC F1NALRIPE
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WHEN IS GUIDANCE CONSIDERED A SUBSTANTIVE RULE
REQUIRING NOTICE AND COMMENT?
John Hannon, OGC, Air and Radiation Law Office
I. Interpretive Rules
A. Notice and Comment
Interpretive rules are not subject to Notice and Comment under the APA. 5
U.S.C. 553(b)(A).
While this Notice and Comment rule is easy to state, II is often difficult to
distinguish between an interpretive and a substantive rule. There are two basic
reasons.
(1) The terminology and criteria described in the case law to distinguish between
interpretive and substantive rules are neither clear nor precise. Applying them directly
does not readily answer the question. They should be used as general guidelines to
the analytical concepts you need to apply.
(2) D.C. Cir. case law holds that in certain circumstances a rule that revises a
prior interpretation of a substantive regulation should itself be considered a substantive
rule requiring notice and comment. Paralyzed Veterans of America v. D.C. Arena , 117
F.3d 579 (D.C.Cir. 1997).
B. Terminology and criteria in the case law.
1. Substantive rules:
are issued pursuant to statutory authority,
implement the statute
add to or modify the existing legal norm, based on the agency’s own authority
and flowing from a delegation of substantive or “law making” authority,
supplement a statute by resolving inconsistences or filling in gaps, rather than
construing existing requirements. U.S. Atty Geni Manual, Syncor International
CorD. v. Shalala , 127 F.3d 90 (D.C. Cir. 1997).
2. Interpretive rules:
advise the public of the agency’s construction of a statute or regulation,
clarify or explain existing law or regulations, reminding parties of existing duties,
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explain something the statute already requires, does not purport to modify the
legal norm or engage in ‘law making.”
construe the actual meaning of the provision as compared to giving content to it.
U.S. Atty Gent Manual, National Family Planning & Reproductive Health Ass’n v.
Sullivan , 979 F.2d 227 (0 C Cir. 1992), Syncor.
3. The terminology and criteria are hard to apply because, read literally, an
interpretive rule will meet many of the elements or be similar in important conceptual
ways to a substantive rule.
It is issued by an agency with delegated authority to administer the statute and it
clearly is part of implementing the statute. See. e.g., Kelly v. EPA , 15 F.3d 1100 (D.C.
Cir. 1994).
In most cases, an interpretive rule clarifies an ambiguous statutory or regulatory
provision. This often modifies or adds meaning to the legal norm, the statutory
terms. This exercise of interpretive discretion typically gives important content to
the provision, “making law ’ in a real sense and making the same kind of
legislative choices used in “substantive” rulemaking. However, the degree of
judicial deference due the interpretation may vary.
4. The terminology and criteria are best seen as providing general concepts to
follow. The case law often appears to apply these terms in an “I know it when I see it”
approach.
5. The conceptual framework seems to be that Congress acts in two relevant ways:
(A) the terms of the statute set out a legal norm, and
(B) the statute delegates authority to the agency to issue substantive rules to
implement the legal norm.
An interpretive rule should be limited to explaining and clarifying the legal norm
[ A], but should not extend into further, more substantive implementation [ B] under the
guise of “interpretation.”
6. A substantive rule typically has all the hallmarks of an interpretive rule but often
goes beyond that. For example, both substantive and interpretive rules typically clarify
or interpret a statutory term or terms, advise the public of the agency’s interpretation,
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and remind parties of their obligations. A substantive rule typically goes further and
adds details and content that flesh out a more complicated implementation strategy.
7. Both rules involve a degree of law making and legislative type decision making.
Interpretive rules may be seen as a narrow subset along this continuum of rulemaking
discretion.
8. Perhaps because the line between the rules is unclear, the case law indicates a
clear intention to hold the aciencv by a short leash when determining whether a rule is
substantive or interpretive. This is to avoid agency over-reaching.
The distinction ‘likely turns on how tightly the agency’s interpretation is drawn
linguistically from the actual language of the statute.” Syncor , 127 F.3d at 95,
Paralyzed Veterans , 117 F.3d at 588.
Where the statutory term is broad and general in nature, such as the terms “fair ’
or “equitable,” the court will look at whether the “interpretation” in effect provides all of•
the real meaning and substance, and not the statutory term, and therefore should be
considered a substantive rule. Syncor,127 F.3d at 95, Paralyzed Veterans , 117 F.3d at
588.
9. Factors to consider:
How closely is the rule tied to explaining the actual words of the statute or
regulation?
How readily can the interpretation be described as doing no more than
explaining what Congress meant? or providing the agency’s position on the most
appropriate interpretation of what Congress meant?
How complicated or detailed is the implementation strategy announced in the
interpretation?
Note: A yes/no decision on the legal boundaries of a statutory norm is more
likely to be considered interpretive than a more complicated and detailed set of
provisions designed to flesh out and implement the same statutory term.
How much meaning does the statute have without the interpretation? Very
general statutory terms that have little meaning independent of a narrowing
agency interpretation are more likely to lead the rule to be considered
substantive.
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C. Modifications of prior agency interpretation of its regulations.
1. D.C. Cir. case law holds that certain re-interpretations of a substantive
regulation amount to a revision or modification of the regulation, and therefore are
themselves substantive rules requiring notice and comment under the APA.
2. In the D.C. Cir., if the agency (1) issues an authoritative, definitive interpretation,
of the regulation, including in an official proceeding or action, and (2) later significantly
or fundamentally revises that interpretation, then the agency in effect has modified the
regulation. Under the APA, modifying a legislative rule requires notice and comment
rulemaking. Paralyzed Veterans, Alaska Professional Hunters Assoc.. Inc. v. FAA , 177
F.3d 1030 (D.C Cir 1999), Association of American Railroads v. DOT , 198 F.3d 944
(D.C Cir. 1999).
3. The conceptual framework seems to be that once the agency interprets an
ambiguous regulation, giving it a clear and definitive meaning, then the regulation is no
longer ambiguous. A subsequent significant change to this interpretation amounts to
an amendment of the now un-ambiguous regulation, as compared to an interpretation.
4. Factors to consider:
How definitive, authoritative, and official was the prior interpretation?
Does the prior interpretation leave the regulation clear and unambiguous on the
issue of concern?
How fundamental is the change from the prior interpretation?
5. Other Circuits: The 5th Circuit follows this case law. Shell Offshore Inc. v.
Babbitt , 238 F 3d 622 (5th Cir. 2001). The 1St Circuit does not accept it. Warder v.
Shalala , 149 F.3d 73(1st Cir. 1998).
D. The factors used to differentiate between an interpretive and substantive
rule are different from the factors used to determine finality and ripeness.
1. An interpretive rule may be final and ripe for review and still be an interpretive
rule that does not require notice and comment.
Aviators for Safe and Fairer Regulation. Inc. v. FAA , 221 F. 3d 222 (1St Cir.
2000)
Edison Elec. Inst. v EPA , 996 F. 2d 326 (D.C. Cir. 1993)
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Franklin Federal Savinas Bank v. Office of Thrift Supervision , 927 F.2d 1332
(6th Cir. 1990)
Her Majesty the Queen ex rel. Ontario v. EPA , 912 F.2d 1525 (D.C. Cir 1990).
2. You look at different factors to determine interpretive v. substantive, compared to
determining finality and ripeness. An interpretation may clearly represent the
culmination of the agency decision making, and may have very concrete and immediate
practical or legal impacts on parties. It can still be tied linguistically closely to the terms
of the statute, advising the public of the agency’s view on the boundaries of
Congressional intent.
II. Statements of Policy
A. Notice and Comment.
Statements of policy are not subject to notice and comment under the APA. 5
U.S.C. 553(b)(A).
B. Terminology and criteria in the case law.
1. Statements of policy:
advise the public prospectively of the manner in which an agency
proposes to exercise a discretionary power . (emphasis added)
U.S. Atty GenI Manual, Syncor
Substantive rules:
are issued pursuant to statutory authority,
implement the statute,
add to or modify the existing legal norm, based on the agency’s own
authority and flowing from a delegation of substantive or ulaw making”
authority,
supplement a statute by resolving inconsistencies or filling in gaps, rather
than construing exhibiting requirements. U.S. Atty Genl Manual, Syncor
There is an overlap in concepts. A statement of policy may also be issued
pursuant to statutory authority. It typically involves implementing the statute or
regulation. Here, the legal norm is typically the authority to exercise a discretionary
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power, and a statement of policy would typically add to or modify the legal norm in the
sense that the agency’s guidance can change in a significant way the practical
meaning of the legal norm.
Nonetheless, the, distinction between policy statements and substantive rules is
somewhat more clear than the distinction between interpretive and substantive rules.
2. For policy statements, the conceptual framework appears to be that:
(a) the agency has authority in the statute or the regs to exercise a discretionary
power, and
(b) the statement of policy describes how the agency intends to exercise that
discretion, in the future, in a proposed and not in a final or binding manner.
3. The first criterion focuses on the kind of discretionary authority at issue.
Typically a policy statement addresses how we intend to exercise discretion in a future
context, such as adjudications (issuing permits, granting waivers, approving alternative
test procedures), rulemaking, enforcement discretion, or other agency activities such as
risk assessments.
This kind of discretion differs from the discretion to interpret or define a statutory
term. For example, an interpretive rule might typically define who is regulated under
the statute or regulations, or what activities are prohibited. An interpretive rule will
more typically define the boundaries of our authority. A policy statement will more
typically describe how we intend to work within those boundaries, such as making a
future decision that involves consideration of balancing various factors within those
boundaries.
4. The second criterion identifies a major distinction between a statement of policy
and a substantive rule - the definitive and decision making nature of the statement. A
policy statement does not bind the agency or outside parties, and preserves final
decisions to the future. It preserves the agency’s ability to deviate from the policy and
exercise its discretion as appropriate in the future.
5. Factors to consider:
Does the guidance document make clear that there is no intention to bind either
the agency or the public? Does it leave the agency free to change its position in a
particular case, free to exercise discretion?
Does it impose obligations or requirements, or establish a legal norm? Is the
guidance document open to attack upon application?
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Does the guidance document appear to be a final agency decision on the
matter?
Does it address future decision making and explain our current intention on how
we might exercise our discretion in that future action?
As with interpretive rules, an agency should expect courts to keep it on a short
leash when distinguishing between policy statement and substantive rules.
C. The factors used to differentiate between an interpretive and substantive
rule are similar to the factors used to determine finality and ripeness.
The factors that determine finality and ripeness are very relevant to determining
whether the guidance document is properly considered a policy statement.
If the guidance document is the agency’s last word on the matter, and reflects
the culmination of an agency decision making process, then it may be final and by
definition it also will not be a statement of policy. If the guidance document has
concrete current impacts, and does not need future application to individual facts to
permit adequate judicial review, this may indicate ripeness. Correspondingly, it will
also indicate that the guidance document is not a policy statement that preserves
discretion to future decision making when individual facts are applied to the legal norm.
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CASE STUDIES - GUIDANCE VS. RULE
Note: Excerpts have been selected for discussion purposes only. Do not rely on
this document for summaries of documents or decisions. Th discussion is
designed to highlight selected issues and does not represent EPA policy.
1. CM TITLE V PERIODIC MONITORING GUIDANCE
Under CM Title V, EPA grants approval tó state permitting authorities to administer
the federal operating permit program. Under Title V, state permits are subject to
notice and cdmment and judicial review in state court. CM § 307(b) provides
appellate review of “final agency actions” and requires petitions for review to be filed
within 60 days after publication in the Federal Register.
EPA has issued a number of statements relating to the scope of monitoring
requirements in Title V permits. An especially difficult issue is whether the permit
should contain additional monitoring when an applicable requirement requires some
monitoring, but does not require periodic monitoring sufficient to ssure compliance
with applicable requirements. EPA regulations at 40 C.F.R. § 70.6(a)(3) read, in part.
Each permit shall contain the following requirements with respect to monitoring:
Where the applicable requirement does not require periodic testing or ... monitoring
periodic monitoring sufficient to yield reliable data from the relevant time period that are
representative of the source’s compliance with the permit....
A document titled “Periodic Monitoring Guidance,” issued under a cover memo signed
by the Directors of OECAJORE and OARIOAQPS on September 15, 1998 and
addressed to Regional Air Division Directors, reads in part as follows:
The purpose of this guidance is to clarify certain principles to be applied when
implementing the periodic monitoring requirements contained in 40 C.F.R., sections
70.6(a)(3) and 71.6(a)(3).
ll.A. Periodic Monitoring is Required by the Act and its Implementing Regulations
All title V permits must contain sufficient monitoring, including periodic
monitoring, to assure compliance with the applicable requirements in the permit.
The regulations at 40 C.F.R., sections 70.6(a)(3) and 71 .6(a)(3), specifically note that
each permit shall contain periodic monitoring sufficient to yield reliable data ...
Consistent with this view of “compliance” and with our stated approach in the
compliance assurance monitoring (CAM) rule (40 C.F.R. part 64), we believe that
periodic monitoring requirements in title V permits must provide a reasonable
assurance of compliance over all anticipated operating conditions.1
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1 This guidance interprets sections 70.6(a)(3)’s and 71 .6(a)(3)’s requirement
that periodic monitoring be sufficient to yield reliable data that are
“representative of the source’s compliance with the permit” to’ require the same
level of compliance assurance as part 64’s requirement that monitoripg and
monitoring data provide “reasonable assurance of compliance ...
* *
VII. Effect of This Guidance
While offering specific recommendations, this guidance is not intended to
prescribe or prohibit periodic monitoring for specific applicable requirements or
emissions’sources. The policies set forth in this paper are intended solely as guidance,
do not represent fina Agency action, and cannot be relied upon to create any rights
enforceable by any party. The Agency may choose to issue more detailed, technical
guidance in the future. ... Finally, nothing in this guidance is intended to limit EPA’s
authority and ability to object to periodic monitoring that the Agency determines to be
inadequate or otherwise not in compliance with part 70.
A host of industry petitioners seek review in the D.C. Circuit EPA’s primary argument
is that the guidance merely reiterates positions already taken by EPA in previous
Federal Register preambles. EPA also argues:
(T]he particular document being challenged here is a non-binding guidance
document, and Petitioners’ challenges to it therefore are premature. Periodic
monitoring determinations for any particular facility will only be made in state permit
decisions or possible later EPA actions in response to those permit decisions. If a
State or EPA chooses to follow any of the disputed aspects of the Guidance in such a
future permit proceeding, the reviewing court will be able to judge the issues raised by
Petitioners in the context of a specific and fully-developed factual record, and will have
completely adequate authority to remand the permit decision if the Court agrees with
Petitioners’ concerns. On the other hand, allowing judicial review of the Guidance at
this juncture will place the Court in the difficult position of attempting to judge issues
that would be far more concrete if presented in a specific factual setting.’
* ** * *
Nor is the Guidance “final” because it allegedly will have a coercive effect on
States. Pet. Br. at 43. . . . This conclusion is reinforced by the Title V statutory scheme
which, as EPA emphasized, makes state permitting authorities “the primary
implementer [ s] of the title V permit program.. . .“ Guidance at 17.
In its decision in Appalachian Power Co. v. EPA , 208 F.3d 1015 (D.C. Cir. 2000), the
D C. Circuit finds the guidance reviewable on the grounds that it is binding in practice:
If an agency acts as if a document issued at headquarters is controlling in the field, if it
treats the document in the same manner as it treats a legislative rule, if it bases
enforcement actions on the policies or interpretations formulated in the document, if it
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leads private parties or State permitting authorities to believe that it will declare permits
invalid unless they comply with the terms of the document, then the agency’s document
is for all practi al purposes “binding.”
* ** * *
[ Wjhatever EPA may think of its Guidance generally, the elements of the Guidance
petitioners challenge consist of the agency’s settled position, a position it plans to
follow in reviewing State-issued permits, a position it will insist State and local
authorities comply with in setting the terms and conditions of permits issued to
petitioners, a position EPA officials in the field are bound to apply.
The court also finds that the guidance amended EPA’S periodic monitoring
interpretations because it’ creates a new legal regime that significantly broadens the
rule.
1. What type of guidance is this? Policy? Interpretive? How can you tell?
2. The court appeared to accept the parties’ claims that the guidance
imposed immediate burdens and obligations on them. What additional
language could the document use to explain the burdens or to indicate that
the guidance really does not impose any burdens?
One possible approach is illustrated in Public Service Co. v. EPA , 225 F.3d
1144 (1 0 th Cir. 2000). Note the differences between the draft and the final
version, which the court approvingly finds to be less “aefinitive” than the draft.
PSC0 contends that a draft of the October 1 letter which was earlier sent to the
CDPHE did determine Colorado’s obligation to deny the minor source permit
and require a PSD permit when it stated the following: Ulf Colorado issues the
signed [ minor source] permit to the applicant, the State will not be acting in
compliance with requirements of the Act relating to the construction and
modification of new sources. EPA Region VIII, is considering what action to
take to prevent such non-compliance....” The nature of this letter as a mere
draft and the deletion of this purported threat from the finalized version of the
letter sent on October 1, however, suggest that the EPA had not definitively
determined the obligations of the state of Colorado when it sent the October 1
letter. The October 1 letter itself began with far more temperate language,
stating “this letter outlines the [ EPA’s] views,” and it never ordered the state or
any other party to take any particular action.
3. What could EPA say in the guidance to explain how parties who might be
affected by the guidance could challenge its application to them in the
future?
One possible approach is set out in the following DRAFT that would explain in
more detail the effect of EPA’s interpretation of the monitoring requirements:
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The following discussion lays out EPA’s current interpretation of the statutory
and regulatory requirements relating to monitoring in Title V permits in light of
these judicial decisions. This interpçetation may ‘be applied by the Agency in
exercising its authority under Title V, such as in reviewing a SIP revision,
evaluating the adequacy of a draft State permit, responding to a petition
challenging a State permit, or issuing a Title V permit in a state without an
approved program. In each of these situations, interested parties will be free to
raise questions about the propriety of this interpretation and EPA will consider
whether the application of this interpretation in the, particular situation is
appropriate at that time. Any decision applying this interpretation will be made
based on the applicable statute and reguldtions. Accordingly, this interpretation
does not impose legally-binding requirements on EPA, States, or the regulated
community. While this interpret tion reflects EPA’s current legal judgment on
the’scope of the Agency’s statutory obligations and implementing regulatory
requirements, the interpretation is subject to change or reconsideration.
4. What arguments could EPA use to respond to allegations that EPA
interpretive guidance “coerces” states or regulated parties? Is there more
that EPA can say in addition to noting that nothing in the guidance or
administrative record supports such an allegation?
5. What difference would it have made if the coui t agreed with EPA that the
guidance merely reiterated positions taken in earlier Fe 1eral Register final
rule preambles?
6. Assume the D.C. Circuit agreed that the interpretation was within the scope
of the regulation, but found that this interpretation substantially changed
EPA’s previous interpretation of the regulation. What result?
An order signed by the Administrator on November 16, 2000, partially grants a citizen
petition asking EPA to object to a permit issued to Pacificorp by Wyoming on the
grounds that the state failed to require certain monitoring. The order refers to a
provision, §70.6(c)(1), not considered in ADpalachian Power :
Recent decisions by the U.S. Court of Appea’s for the District of Columbia Circuit shed
light on the proper interpretation of these requirements. ... [ describes ApDalachian
Power and case law on § 70.6(c)(1), concluding that the separate sufficiency
requirement of § 70.6(c)(1) remains in place.] In accordance with these judicial
precedents, ... [ w]here the applicable requirement already requires periodic testing or
monitoring, ... the court of appeals [ in Aipalachian Powerl has ruled that the periodic
monitoring rule in § 70.6(a)(3) does not apply even if that monitoring is not sufficient to
assure compliance. In such cases, the separate regulatory standard at § 70.6(c)(1)
applies instead. By its terms, § 70.6(c)(1) - like the statutory provisions it implements -
calls for ... monitoring through the permit as necessary to be sufficient to assure
compliance
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A second order signed by the Administrator on December 22, 2000, partially grants a
citizen position asking EPA to object to a permit issued by Washington to Fort James
Camas Mi’l, saying in part: I
In a recent order, ... see FPacificorpl , EPA summarized the [ applicable caseS] and
described their impact on monitoring provisions under the Clean Air Act. Please see
pages 16-19 of the Pacificorp order for 1 EPA’s complete discussion of these issues. In
brief, EPA concluded ... [ summarizes and quotes from Pacificorp order].
7. Assume that a third party (other than Paciticorp ) were to challenge these
orders on the grounds that EPA i issuing a rule without notice and
comment. Does issuing the interpretation in an adjudicatory Qrder rather
than i a guidance document give EPA additional or different ripeness and
finality arguments?
8. Assume EPA’s Office of Multimedia Obfuscations issues an “FYI”
memorandum to the Regional Air Division Directors summarizing and
attaching the Pacificorp order. Would the finality and ripeness arguments
be different than if EPA had not issued the memo?
A letter signed by a Region 2 Division Director on December 12, 2001 responds to
NYPIRG’s letter arguing that New York’s Title V program is deficient because state-
issued permits lack sufficient monitoring. The Region 2 letter states in ‘part:
EPA summarized the [ applicable cases] and described their impact on monitoring
provisions under the Clean Air Act in two recent orders responding to petitions under
Title V. ... See pages 16-19 of the Pacificorp order for EPA’s complete discussion of
these issues. In brief, EPA concluded ... [ summarizes and quotes from Pacificorp
order].
9. How should this letter be characterized? Guidance? Order? Would
someone other than the recipient of the letter have a basis to challenge the
interpretation?
A January 2001 revision to an instruction manual for applications for EPA-issued Title
V permits under the Federal Operating Permits Program, states, with respect to
§71 .6(c)(1) [ the language is identical to §70.6(c)(1 )]:
If the applicable requirement requires periodic testing or monitoring, but it is not
sufficient to assure compliance, the permit must enhance that testing or monitoring in
order to establish monitoring that is sufficient to assure compliance with the terms and
conditions of the permit
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Utility Air Regulatory Group files a petition for review of what it characterizes as EPA’s
“interpretation of the ‘Title V Monitoring’ provisions at 40 C.F.R. § 70.6(c)(1) and
71 .6(c)(1), as set out in the Agency’s Order on Petition for Objection to State Operating
Permit for Fort James Camas Mill (and numerous other subsequent documents), and in
the Agency’s revised “Instruction Manual ...“.
10. What arguments support UARG’s ability to gain review of individual
statements in these various documents? Is challenging statements in the
documents different from challenging the actions themselves?
II. What is the best ay for EPA to characterize its position? Should EPA
concede there is an “action” but not final action? Final but nt ripe? What
is the action? Does it make a difference that various EPA documents use
very similar language?
12. As in this case, the government generally argues that interpretive guidance
is not final or ripe until it is a plied. Is it worth it? Why should we care?
2. RCRA SUBTITLE C DRAFT HUMAN HEALTH RISK ASSESSMENT PROTOCOL
FOR HAZARDOUS WASTE COMBUSTION FACILITIES
Under RCRA subtitle C, EPA grants approval to state permitting authorities to
administer the hazardous waste permit program. State permits are subject to notice
and comment and judicial review in state court.
In July 1998, OSWER issues a “Peer Review Draft” HHRI P, which reads in part:
DISCLAIMER
This document provides guidance to U.S. EPA Regions and States on how best to
implement RCRA and U.S. EPA’s regulations to facilitate permitting decisions for
hazardous waste combustion facilities. It also provides guidance to the public and to
the regulated community on how U.S. EPA intends to exercise its discretion in
implementing its regulations. The document does not substitute for U.S. EPA’s
regulations, nor is it a regulation itself. Thus, it cannot impose legally-binding
requirements on U.S. EPA, States, or the regulated community. It may not apply to a
particular situation based upon the circumstances. U.S. EPA may change this guidance
in the future, as appropriate.
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Chapter 1 - INTRODUCTION
This Human Health Risk Assessment Protocol (HHRAP) has been developed as
national guidance to consolidate information presented in other risk assessment
guidance and methodology documents previously prepared by U.S. EPA and state
environmental agencies. In addition, the HH AP also addresses issues that have been
identified while conducting risk assessments for existing hazardous waste combustion
units. The overall purpose of this document is to explain how risk assessments should
be performed at hazardous waste combustion facilities. This document is intended as
(1) guidance for personnel conducting risk assessments, and (2) an information
resource for permit writers, risk managers, and community relations per 1 sonnel.
.Often, the determination of whether or not a permit is sufficiently protective can be
based on its conformance to the applicable technical standards specified in the
regulations. Since the time that the current regulations for hazardous waste incinerators
and boilers/industrial furnaces were issued (1981 and 1991, respectively), however,
information has become available to suggest that these performance standards may
not fully address potentially significant risks
The RCRA “omnibus” authority of §3005(c)(3) of RCRA, 42 U.S.C. §6925(c)(3) and 40
C.F.R. §270.32(b)(2) gives the Agency both the authority and the responsibility to
establish permit conditions on a case-by-case basis as necessary to protect human
health and the environment. Performance of a site-specific risk assessment can provide
the information necessary to determine what, if any, additional permit conditions are
necessary for each situation to ensure that operation of the combustion unit is
protective of human health and the environment Any decision to add permit
conditions based on a site-specific risk assessment under this authority must be
justified in the administrative record for each facility, and the implementing agency
should explain the basis for the conditions. I
The permitting agency should consider several factors in its evaluation df the need to
perform a risk assessment (human health and ecological). These factors include:
- whether any proposed or final regulatory standards exist that U.S. EPA has
shown to be protective for site-specific receptors
- whether the facility is exceeding any final technical standards
- the current level of hazardous constituents being emitted by a facility,
particularly in comparison to proposed or final technical standards, and to levels
at other facilities where risks have been estimated
- the scope of waste minimization efforts and the status of implementation of a
facility waste minimization plan
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- particular site-specific considerations related to the exposure setting (such as
physical, land use, and sensitive subpopulation characteristics) and the impact
of these characteristics on potential nsks
- the hazardous constituents’ most likely to be found and those most lil ely to
pose significant risk
- the volume and types of wastes being burned
- the level of public interest and community involvement attributable to the
facility
This list is by no means exhaustive, bu is meant only to suggest significant factors that
have thus far been identified. Others may be equally or more important.
I.
13. What type of guidance is this? Policy? Interpretive? How can you tell?
RCRA § 7006 provides for review in the D.C. Circuit of EPA actions in promulgating
any regulation or requirement. Petitions for review must be filed within 90 days of
promulgation. On July 10, 2000, the Cement Kiln Recycling Coalition petitions for
review of the HHRAP and other EPA guidance documen s, all issi ed more than 90
days before the date the petition was filed.
The D.C. Circuit, in a per curiam decision, CKRC v. EPA , 2000 U.S. App. LEXIS 35399.
(Dec. 19, 2000), grants EPA’s “motion to dismiss” CKRC’s petition for review (though
EPA had actually filed a’ motion for a show cause order), stating that it lacked
jurisdiction to hear the petition. Specifically, the court holds that Ao alachian Power
does not constitute new grounds for review under RCRA § 7006(ä), nor does it fit within
the reopener doctrine which applies to newly-promulgated EPA requirements.
14. Assume CKRC had filed its petition within the 90-day window for review.
What result if EPA responds to CKRC’s challenge by using the same
arguments used in EPA’s Appalachian Power brief (quoted above)?
15. Would it make a difference to the argument that this is a “draft”?
16. Would it make a difference if EPA said the guidance waS “subject to
change”?
On August 10, 2000, OSW issues a document titled “Hazardous Waste Combustion
National Emission Standards for Hazardous Air Pollutants Final Rule Fact Sheet:
Resource Conservation and Recovery Act Site-Specific Risk Assessment Policy for
8
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Hazardous Waste Combustion Facilities.” Among other things, the
HWCNESHAPFRFSRCRASSRAP (or “fact sheet,” as EF 1 A’s brief unimaginatively
terms it) summarizes statements in earlier documents, including the HHRAP.
On September 28, 2000 CKRC files a petition for review in the D.C. Circuit, seeking
review of what it characterizes as “requirements promulgated” by the fact sheet.
17. CKRC argues that the fact sheet “crystallized” previously articulated EPA
stateme its. How should EPA respond?
18. The Region 12 Waste Division Director issues a letter objectipig to a draft
combustion permit proposed by the state of Laredo. The letter states, “If
Laredo issues the permit, the State will not be acting in compliance with
requirements of HHRAP. EPA Region 12 Is considering what action to take
to prevent such non-compliance.” An industry group’petitions for review
of the letter in the D.C. Circuit, arguing that EPA has issued a rule without
notice and comment rulemaking. What should EPA argue? Does it make a
difference that the letter is issued by Region 12’s Division Director rath r
than by an official further up the bureaucratic food chain?
19. Region 12 is responsible for issuing a permit to a facility in a state that is
not yet authorized to issue combustion permits. During the comment
period, the facility comments that a risk assessment is not needed because
of site-specific factors. In its response to comment, EPA states that a risk
assessment is required, and cites to the HHRAP without additional
explanation.
a. The facility petitions for review of the permit, arguing that EPA’s
decision is arbitrary and capricious because EPA is treating the
HHRAP as if it were a rule. What is EPA’s response?
b. An industry group petitions in the D.C. Circuit for review of the EPA
permit, arguing that it shows that EPA is now treating the HHRAP as
a rule. What is EPA’s response? Is the petitioner’s argument
improved if it challenges both the letter to Laredo and the response
to comment? What is the petitioner’s best argument?
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3
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‘ll •PO NT NOTES
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Topic 3
Spotting Cross-Cutting Issues
•Speaker Biographies - Jim Havard, Tod Siegal, Gaylene
Vasaturo and Alan Waits
•Hypothetical: “Cross-cutting issues”
•The National Environmental Policy Act and Environmental
Protection Agency Programs
•Endangered Species Act Outline
•National Historic Preservation Act Outline
•Paperwork Reduction Act Outline
•Federal Advisory Committee Act Outline
- FACA Question Tree
- Groups Exempt From FACA
- General Requirements of FACA
•Environmental Justice Outline
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TOPIC 3 BIOGRAPHIES
JIM HAVARD
Jim Havard is an attorney with EPA’S Office Of General Counsel in
Washington, D.C. M . Havard provides counseling to the Agency on Indian
law and policy issues relating to EPA’S programs. He is also responsible for
counseling on EPA’S reviews of other agencies’ actions under the National
Environmental Policy Act.
Before joining EPA in August 1994, Jim taught Environmental Policy
for a semester at the University Of Michigan-Dearborn. While in law school,
he had legal internships with the law firm Of Hughes Hubbard & Reed in
New York and several environmental groups, including the Sierra Club
Legal Defense Fund, the National Wildlife Federation, and the
Massachusetts Public Interest Research Group. Before attending law
school, he was a paralegal with Hughes Hubbard & Reed.
Jim received his J.D. from the University Of Michigan Law School in
1993, his M.S. from the University Of Michigan School of Natural Resources
and the Environment in 1994, and his B.A. in political science and
economics from Union College in New York in 1987.
TOD SIEGAL
Tod Siegal is an attorney with EPA’S Office of General Counsel, cross-
Cutting Issues Law Office in Washington, D.C. Tod provides counseling to
the Agency on Indian law and policy issues and on issues arising under the
Endangered Species Act, the Migratory Bird Treaty Act, and the National
Historic Preservation Act.
Before joining EPA in September 1998, Tod worked as a litigation
associate in the New York and Washington, D.C. offices Of Shearman &
Sterling. Tod received his J.D. from the University of Michigan LaW School
in 1992 and his B.A. in biology from Columbia University in New York in
1989.
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GAYLENE VASATURO
Gaylene Vasaturo is an associate regional counsel for EPA Region 5 in
Chicago, where she handles enforcement cases under all environmental
laws administered by EPA. She also leads a practice group for the Office Of
Regional Counsel for issues arising under the Paperwork Reduction Act and
EPA’S information gathering authority in CERCLA, RCRA, CWA, CAA, and
TSCA. Prior to enjoying life in Chicago, from 1984 to 1995, Caylene worked
as a staff attorney in the Office of General Counsel, mostly in the Pesticides
and Toxic Substances Division. Gaylene received her J.D. from the
University of san Diego School Of Law, magna cum laude, and was a
member of the law review.
ALAN WALTS
Alan waits is an attorney with EPA Region 5’S Office of Regional
Counsel in Chicago, where he enforces and counsels in a wide range Of
program contexts. Since 1998, he has also worked on environmental
justice issues in Region 5. He is now on detail to the Title VI Task Force,
which is investigating existing administrative complaints filed under 40
CFR Part 7 and Title VI Of the civil Rights Act Of 1964.
Before joining EPA In October 1996, Alan worked under a fellowship
at the Foundation for international Environmental Law and Development
(FIELD), a legal advocacy and research organization based at the University
of London. Alan received his J.D., magna cum laude, from the University
of Michigan Law School in 1995; and his B.A. from Wesleyan University in
1991.
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Cross-Cutting Issues
A large energy producing company, NewPower Co , is proposing to construct and ultimately
operate a new steam electric power plant along the Snake River in v estern Idaho NewPower has
determined that this power plant will be a “major source” of NOx, SO 2 , and PM-b, and must
apply to Idaho for a construction permit that meets Clean Air Act requirements for prevention of
significant deterioration of air quality (PSD permit) Among other necessary permits for the
project, NewPower has also determined that it will need National Pollutant Discharge Elimination
System (NPDES) permit coverage under section 402 of the Clean Water Act Because the State
of Idaho has not been approved by EPA to run the NPDES program. Nev Power has applied for
permit coverage directly to EPA. NewPower is seeking coverage under both the Construction
General Permit for storrnv ater discharges associated ith constn.c:ion ci the nev facility and an
individual permit for discharges resulting from operation of the plant
The new facility is being proposed along an environmentally and culturally sensitive stretch of the
Snake River. For instance, the local rverine system is known to comprise portions of the
spawning migration run for both the Spring/Summer Run Chinook and the Socke e Salmon The
area also provides nesting grounds for the Bald Eagle and has been proposed by the U S. Fish and
Wildlife Service as critical habitat for the Grizzly Bear Some older reports also indicate the
presence of the MacFarlane’s Four-O’Clock, although the perennial hasn’t been seen for some
time in the area. All of these species are listed as threatened or endangered under the Endangered
Species Act in addition, the construction site partially falls within an abandoned nineteenth
century mining town known as Shadow Creek Although not likely to appear on many tourist
itineraries, Shadow Creek does retain much of’ its original historic character including se’. eral
standing structures, some dirt roadways and fences, and some irrigation ditches And since
history hardly began in the nineteenth century, we shouldn’t be surprised to learn that recent
surveys in the area have also revealed Indian artifacts and indications of an ancient campsite along
the river. In fact, the local Nez Perce Tribe has long claimed that the area is an ancient pathway
of Tribal ancestors
As if that weren’t enough, it appears that part of the new facility will co er at least one of the
many mine tailing piles left behind by previous mining interests The tailing piles, which cover
over 100 acres in the general area, have for some time been a suspected source of heavy metals
seeping into local groundwater as well as the Snake River Local health authorities ha% e been
evaluating the site for potential health effects on nearby villages, including at least one low-
income community of Indians believed to consume locally obtained tish at higher rates than
a erage communities
Environmental groups and many local community members hate joined together protesting to
EPA that the mine tailings area must be cleaned up under CERCLA. Before deciding what action
is appropriate, EPA plans to do several things First, EPA plans to cor ene a meeting with the
environmental groups, local communities, and tnbes to solicit their input A local health
department has provided EPA with a scientific report on the health effects of fish consumption
from the Snake River in v estern Idaho The report was prepared by a committee of leading
scientists, organized by the National Academy of Science In addition, EPA plans to issue an
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miomiation request under CERCLA 104(e) to all mining companies in the v estem U S to find
out which companies may be responsible for the piles of mine tailings Fmally, EPA will survey
local communities, tribes, and local health departments on fish consumption from the Snake River
in v estern Idaho
EPA is also currently evaluating the project in Light of the potential NPDES permitting action, and
is preparing comments to the State of Idaho on its draft PSD permit Several western power
companies have requested to meet with the Regional Administrator to discuss the power shortage
in the west and the need for streamlining the NPDES permit process.
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Discussion Topics
1) What are EPA’s responsibilities to conduct an environmental review of its permitting action
under the National Environmental Policy Act” Does the Clean Water Act exempt EPA from
NEPA review Is the answer different for permit coverage under the Construction General
Permit as opposed to the individual operating permit”
2) Does EPA need to conduct a consultation under the Endangered Species Act” Are ESA
responsibilities the same for plant and wildlife species” Are they the same for proposed and listed
species/critical habitat”
3) Who, if anyone, should EPA consult with under the National Historic Preser aiion Act” What
are the Nez Perce Tribe’s roles in an NHPA consultation”
4) What analysis should EPA conduct under Executive Order 12898 — Federal Actions To
Address Environmental Justice In Minority Populations And Low-Income Populations — and how
should that analysis be reflected in the administrati e record”
5) What environmental justice issues might be raised in the context of Title VI of the Civil Rights
Act of 1964” How should EPA address these issues”
6) What Paperwork Reduction Act issues arc raised by EPA’s plans concerning the mine tailings
issue” Regarding the survey of local communities, tribes, and health departments on fish
consumption, v ould the answer be different if the health department conducted the survey instead
of EPA”
7) What Federal Advisory Committee Act issues are raised by the hypothetical”
8) Would the analysis of EPA’s responsibilities under the various cross-cutting authorities change
if the State of Idaho were the permitting entity under an EPA-approved NPDES permitting
program”
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rn NATIONAL ENVIRONMENTAL POLICY ACT
AND
ENVIRONMENTAL PROTECTION AGENCY PROGRAMS
October 12, 1993
Prepared by the EPA Workgroup on NEPA
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TABLE OF CONTENTS
PAGE
Executive Summary 7
Introduction 13
1.0 Background on the National
Environmental Policy Act (NEPA) 15
2.0 NEPA and Key Environmental Goals 18
3.0 EPAProgramsandNEPA 19
4.0 History of EPA Functional
Equivalency to NEPA 22
5.0 EPA Program Procedures and NEPA 26
5.1 AirandRadiation 27
5.11 Clean Air Act Standard Setting 27
5.12 EPA Approvals Under the Clean Air Act 29
5.13 Atomic Energy Act Programs 31
5.2 Clean Water Act Programs 34
5.21 State/Tribal Water Quality
Standards Approvals 34
5.22 Nonpoint Source and Clean
Lakes Grants 39
5.23 Water Quality Planning 41
5.24 National Water Quality Cnteria 42
5.25 Wetlands 44
5.25.1 Section 4.04 Wetland
Permit Reviews 44
5.25.2 Section 404 State/Tribal
Program Approval 47
5.26 Wastewater Treatment 49
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5.26.1 Municipal Wastewater Treatment
Constniction Grants .... 49
5.26.2 State Revolving Loan
Fund (SRF) 51
5.27 Estuaries and Oceans 53
5.27.1 National Estuary Program 53
5.27.2 Ocean Discharge Program 55
5.27.3 Ocean Dumping Program 57
5.28 Wastewater Enforcement
and Compliance 60
5.29 Effluent Guidelines Program 63
5.3 Safe Drinking Water Act Programs 65
5.31 Drinking Water and Underground
Injection Control (UIC) Regulations . 65
5.32 EPA and delegated State
Permitting - UIC Pennits 67
5.33 State Program Approvals: Public Water
Supply Systems and UIC Primacy 69
5.4 Pesticides and Toxic Substances Programs 71
5.41 Pesticides Regulation 71
5.42 Toxic Substances 74
5.42.1 Regulation of
Toxic Substances 74
5.42.2 PCB Permits 76
5.42.3 New Chemicals Program 78
5.5 Resource Conservation and Recovery Act Programs 80
5.51 Standard-setting under RCRA 80
5.52 EPA Permits for Hazardous
Waste Facilities 82
5.53 Authorized State Permits for
Hazardous Waste Facilities 83
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5.6 CERCLA/SARA (Superfund) Programs . 84
5.7 EPA Research and Development Activities . 87
5.8 EPA Facilities 89
5.9 Other EPA Programs 91
5.91 International Activities 91
5.92 Environmental Justice 93
5.93 Other Grant Assistance 95
6.0 Recommendations for Agency-wide
Operations 96
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i NATIONAL ENVIRONMENTAL POLICY ACT
AND
ENVJRONMENTAL PROTECTION AGENCY (EPA) PROGRAMS
EXECUTIVE SUMMARY
In late March 1993, Administrator Browner formed an internal EPA Workgroup to
examine how EPA can improve the use of the National Environmental Policy Act (NEPA)
policy mandate to achieve the goal of better environmental management among EPA
programs. This report summarizes the Workgroup’s effort to outline the application of the
core NEPA elements to the procedures of all of the major EPA programs. Key conclusions of
this report are summarized below.
NEPA, signed into law 1970, requires federal agencies to evaluate the environmental
impacts of proposed actions. It has created a “quiet revolution” in federal decisionmaking. As
a result of NEPA, a standard process is in place for environmental analysis, including
consideration of alternatives for proposed federal actions, public participation, and integration
of other environmental requirements. The 1978 Council on Environmental Quality (CEQ)
regulations, which implement NBPA across the federal government, provide a model for
individual federal agency NEPA regulations. These establish the framework under NEPA for
public participation, the procedural steps for preparation of environmental assessments (EAs)
and environmental impact statements (EISs), and requirements for consideration of alternatives
and indirect impacts.
EPA is required to comply with the procedural requirements of NEPA for its
research and development activities, facilities constniction, wastewater treatment constniction
grants, and EPA-issued National Pollution Discharge Elimination System (NPDBS) permits for
new sources. The Agency is legally exempt from the procedural requirements of NEPA for its
other activities, although EPA has voluntarily prepared EISs for a number of its actions
pursuant to a long-standing statement of policy.
EPA ’s exemption from NEPA procedures is based on two factors: (1) the Agency is
exempted by statute for actions taken under the Clean Air Act and for most Clean Water Act
programs (EPA is also exempted from the procedural requirements of environmental laws,
including NEPA, for CERCLA response actions); and (2) for other programs, courts have
found EPA procedures, or the use of environmental review procedures under program
legislation, to be “functionally equivalent t ’ to the NEPA process and thus to be exempt from
the procedural requirements in NEPA. However, the agency recognizes the value of
environmental analysis, consideration of public participation and integration of other
environmental requirements across the broad range of its program activities.
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This report expmines EPA’s programs in terms of how the elements above are
addressed, and develops recommendations on ways to enhance the Agency’s efforts. Program-
specific recommendations are included in the separate program discussions below. The
general Agency-wide recommendations are as follows:
1. EPA should strive to ensure that NEPA documents government-wide are clear, readable
and focused on key issues. This should be done in EPA’s own NEPA actions, and through the
use of EPA EIS review authority under Section 309 of the Clean Air Act. In particular, EPA
should make efforts to ensure that all NEPA documents are responsive to the environmental
concerns of minority and low-income groups with interests in a federal action.
2. EPA should revise its “voluntary EIS” policy to:
o allow preparation of “environmental assessments” where warranted, and
o encourage the use of voluntary EISs by EPA program managers to address,
among other things, issues involving multi-media impacts, indirect effects, equity
issues, large-scale ecological impacts, or public controversy, provided that such
voluntary EISs are not duplicative of existing procedures and do not significantly
delay actions.
3. The Agency should accelerate efforts to improve its management of other federal cross-
cutting environmental statutes, particularly the Endangered Species Act. In addition, EPA
should address the extent to which federal environmental “cross-cutters” (e.g., the National
Historic Preservation Act) apply to actions under EPA authorized state programs.
4. EPA should carry out enhanced training efforts for “cross-cutting” environmental statutes
(already underway for Historic Preservation). Training programs for EPA program office
staff should include information on NEPA and NEPA-related areas.
5. EPA should continue efforts to develop environmental impact assessment (EIA)
methodologies. Expanded training should be made available for EPA staff on NEPA/EIA
methodologies. Efforts should be continued to work with other agencies, states, tribes and
foreign governments on EIA methods and issues.
6. EPA should develop a simple guide for the public, setting out EPA program procedures.
This guide also should include information on how states and tribes, which are operating EPA-
authorized programs, carry out public participation, environmental analysis and alternatives
evaluation for environmental programs.
7. A long-term effort should be made to standardize, as feasible, EPA procedures across
programs with the goal of achieving a uniform terminology and consistent procedures
concerning the NEPA-Iike elements discussed in this report.
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8. EPA should initiate discussions with the Office of Management and Budget (0MB), with
the goal of enhancing the environmental analysis and public involvement in Regulatory Impact
Analyses as a means of furthering the functional equivalence of this document to NEPA
analyses. This could be carried out in connection with the new Executive Order 12866 on
Regulatory Review.
9. All EPA programs not subject to NEPA’s procedural requirements should further
examine their procedures to ensure that their programs fully address all appropriate elements
of the NEPA process.
The main fmdings for each of the EPA programs are:
o Air and Radiation Plograms
-- The EPA Office of Air and Radiations’s Programs are grouped into three
classes: (1) Clean Air Act (CAA) Standard-setting prograins;(2) EPA
Approvals under the CAA; and (3) Atomic Energy Act Programs. All
activities follow a uniform procedure.
- - All CAA programs are exempted from the procedural requirements of
NEPA under Section 7 (c)(1) of the Energy Supply and Environmental
Coordination Act.
- - Air and Radiation programs prepare voluntary EISs in the following areas:
New Source Performance Standards (NSPS); National Emissions Standards
for Hazardous Air Pollutants (NESHAPS); Section 109 National Ambient
Air Quality Standards (NAAQS); regulations affecting State Implementation
Plans (SIPs); Section 202 motor vehicle emissions standards; Section 211(c)
fuel/fuel additives; and generally applicable radiation standards.
o Water Programs
- - The EPA Office of Water oversees these programs under the Clean Water
Act (CWA): State/Tribal Water Quality Standards approvals; Nonpoint
Source and Clean Lakes grants; Water Quality Planning; National Water
Quality Criteria development; Wetlands permitting for dredge and fill
material; National Pollution Discharge Elimination System (NPDES)
permitting for wastewater discharges; the State Revolving Loan Fund (SRF)
and construction grants for municipal wastewater treatment; and
development of Effluent Guidelines. The Office of Water also administers
programs for the protection of estuaries and oceans under the Marine
Protection, Research and Sanctuaries Act (MPRSA) and programs under the
Safe Drinking Water Act (SDWA).
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- Most CWA programs are exempted by statute from the procedural
requirements of NEPA, except for wastewater treatment construction grants
and issuance of NPDES permits for new sources. EPA actions under the
SDWA are exempted from NEPA procedures on the basis of their
functional equivalence to the NEPA process.
-- Procedures under the Marine Protection, Research and Sanctuaries Act
(MPRSA), for issuance of ocean dumping permits, are considered to be the
functional equivalent of NEPA. However, voluntary EISs are prepared for
designation of ocean disposal sites and for criteria for evaluation of ocean
disposal permit applications under MPRSA.
o Pesticides and Toxic Substances
-- Pesticides and toxic substances programs are managed by the EPA Office of
Prevention, Pesticides and Toxic Substances.
-- The Toxic Substances Control Act (TSCA); the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA) and the Federal Food Drug and
Cosmetic Act respectively mandate that EPA use its authority to prevent
unreasonable risks of injury to health or the environment from a chemical at
any stage in its lifecycle and regulate certain conditions of distribution, sale
and use of products intended for use as pesticides.
-- A significant portion of the activities of the pesticide programs have been
deemed by the courts to be the functional equivalent of NEPA. These
include decisions involving pesticide cancellation and emergency
registration and experimental use permits. Rulemaldng in the regulatory
program for toxic chemicals, and procedures for control of new chemicals
and permitting of PCBs are considered to be the functional equivalent of
NEPA.
-- Voluntary EISs are prepared for activities under FIFRA involving Section
6(b), cancellation of pesticide registrations and Section 19 pesticide disposal
regulations.
o Resource Conservation and Recovery Act ( RCRA) Proarams
-- The EPA Office of Solid Waste and Emergency Response has oversight of
the RCRA programs. RCRA requires the Agency to develop the regulatory
framework to identify wastes that must be managed as hazardous under
Subtitle C of RCRA.
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-- Three basic areas of activity are carried out under RCRA: (1) EPA
Standard Setting; (2) EPA Permits for Hazardous Waste Facilities; and (3)
Authorized State Permits for Hazardous Waste Facilities.
-- The processes governing regulatory framework development and permitting
under RCRA are considered to be the functional equivalent of the NEPA
process.
o Comprehensive Environmental Response. Compensation. and Liability Act
( CERCLA). as amended by the Superfund Amendments and Reauthorization
Act ( SARA )
-- The EPA Office of Solid Waste and Emergency Response oversees the
CERCLA/SARA (Superfund) program.
-- The Superfund program is responsible for addressing the nation’s
abandoned or uncontrolled hazardous waste sites.
-- The Superfund program establishes procedures for remedial investigation
and feasibility studies for hazardous waste sites. By statute Superfund
remedies are not required to comply with the procedural requirements of
other environmental laws, including NEPA. However, the procedures
detailed in the National Contingency Plan (NCP) for assessing the
environmental and other impacts of potential remedies are considered to be
the functional equivalent of NEPA. The NCP allows for an extensive
analysis of alternatives and environmental impacts, and an aggressive
community involvement program.
o Research and Development Activities
-- Research and Development (R&D) activities are managed in the Office of
Research and Development.
-- R&D activities provide scientific support for setting environmental
standards as well as the technology needed to prevent, monitor, and control
pollution.
-- R&D activities are subject to NEPA and must comply with CEQ
regulations at 40 CFR Parts 1500-1508 and EPA’s regulations at 40 CFR
Part 6, Subpart G, “Environmental Review Procedures for Office of
Research and Development Projects.”
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o EPA Facilities
-- EPA Facilities are managed in the Office of Administration and Resources
Management.
- - This program includes construction and modification of EPA facilities.
-- EPA’s facilities construction activities are subject to NEPA and must
comply with CEQ regulations at 40 CFR Paits 1500-1508 and EPA’s
regulations at 40 CFR Part 6, Subpart I, “Environmental Review
Procedures for EPA Facifity Support Activities”.
o International Activities
- - The Office of International Activities (OIA) provides technical and policy
support for U.S. international environmental work in bilateral and
multilateral forums.
- - The majority of OIA activities are advisory for which the use of NEPA or
NEPA-like procedures is not applicable. Under existing U.S. Government
interpretation, NEPA does not apply to U.S. activity in bilateral contexts.
OIA and the Office of Federal Activities, in coordination with the regions,
provide training and technical assistance to other countries on
environmental impact assessment methods.
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NOTES: FOR THE ENTIRE REPORT, SEE OGC E-LIBRARY. IN ADDITION, SINCE
THIS REPORT, A FEW IMPORTANT NEPA DOCUMENTS RAVE BEEN FINALIZED
INCLUDING THE FOLLOWING:
1) EPA HAS REVISED iTS VOLUNTARY NIEPA POLICY. 11th NEW POLICY CAN
BE FOUND AT http://es.epa.gov/oecaIofa/voleis.html AND AT 63 FR 58045 (OCTOBER 28,
1988);
2) EPA HAS FINALIZED ITS GUIDANCE FOR INCORPORATING
ENVIRONMENTAL JUSTICE CONCERNS IN EPA’S NEPA COMPLIANCE
ANALYSES. THE GUIDANCE CAN BE FOUND AT http://es.epa.gov/oeca/ofblejepa.html.
3) CEQ HAS FINALIZED ITS ENVIRONMENTAL JUSTICEINEPA GUiDANCE. IT
CAN BE FOUND AT http://ceq.eh.doe.gov/nepairegs/ej/justice.pdf.
II
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Endangered Species Act (16 U.S.C. § 1531, et. seq.)
Select overview of the Act.
A. Fish & Wildlife ServicefNational Marine Fisheries Service administration of the
ESA.
1. Listing species as threatened or endangered. (ESA § 4)
2 Designating “critical habitat”. areas essential for conservation of the listed
species (ESA § 4).
3 Developing recovery plans (ESA § 4).
4 Permitting non-federal activities likely to “take” listed fish or wildlife
(ESA § 10, 50 C F R. § 17.22(b) and 222 307 specif i permit
requirements)
• Listed plants protected from non-federal activity generally only in
areas under federal jurisdiction.
B Major substantive obligationsof Federal agencies
1. Utilize authorities to conserve listed species:
Federal agencies shall, in consultation with and with the
assistance of the [ FWS and/or NMFS], utilize their authorities in
furtherance of the purposes of this chapter by carrying out
programs for the conservation of endangered species and
threatened species .“ (ESA § 7(a)(1)).
2 Ensure actions are not likely to jeopardize the continued existence of
listed species
• “Each federal agency shall, in consultation with and with the
assistance of the [ FWS and/or NMFS], insure that any action
authorized, flinded, or carried out by such agency is not likely to
jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse
modification of [ designated critical habitat] of such species
(ESA § 7(a)(2))
3 Avoid unauthorized “take” of even one individual of a listed fish or
wildlife species. (ESA § 9 and 7(o)(2)). Note , the prohibition against
“take” applies to all “persons,” including Federal agencies.
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“.with respect to any endangered species of fish or wildlife listed
pursuant to [ ESA § 4] it is unlawftil for any person subject to the
jurisdiction of the United States to— (B) take any such species
within the United States or the territorial sea of the United
States. “ (ESA § 9(a)(1)(B)).
• “Take” means to harass, harm, pursue, hunt, shoot, wound, kill,
trap, capture or collect, or to attempt to engage in any such
conduct. (ESA § 3(19)) Harm is defined as “an act which actually
kills or injures wildlife Such act may include significant habitat
modification or degradation where it actually kills or injures wildlife
by significantly impairing essential behavioral patterns, including
breeding, feeding, or sheltering” (50 C F R § 17 3, 50 C F R
§ 222 102).
• Take prohibition also generally applies to threatened wildlife (ESA
§ 4(d), 50 C F.R. § 17 31). (Check recent listings, in particular, for
more flexible protections for certain threatened species.)
IL EPA and the ESA — Compliance with ESA § 7(a)(2) and (9).
A Threshold issue #1 Is there action “authorized, funded, or carried out” by EPA
under § 7(a)(2)?
Broad range of EPA actions potentially included 50 C F R § 402 02
defines “action” to include permits, grants, rulemakings, and actions
indirectly causing modifications to the environment
B Threshold issue #2 Is it action that “may affect” listed species or critical habitat?
“Effects” include minor and beneficial effects (J)reamble to FWSINIMFS
regulations, 51 Fed. Reg 19926, 19949 (June 3, 1986))
2 “Effects” include indirect effects and the effects of interrelated and
interdependent activities (50 C.F R. § 402 02, defh “effects of the action”)
a. “Indirect effects” are effects caused by the action, later in time, and
reasonably certain to occur
b. “Interrelated and interdependent activities” are activities that would
not occur but for the action (51 Fed Reg at 19932; 50 C.F R. §
402 02 definition under “effects of the action”).
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3 If conclusion is “no effect,” then no consultation duty triggered. Action
agency controls determination of no effect/may affect. (51 Fed. Reg. at
19949).
4 if action “may affect,” then informal or formal consultation with FWS
and/or NMIFS must be completed. (50 C.F.R § 402.14(a), (b))
C. General Issues Regarding Consultation:
1 Upon initiation of consultation (formal or informal), action agency and any
applicant are prohibited under ESA § 7(d) from making irreversible or
irretrievable resource commitments that foreclose alternatives that
would avoid jeopardy.
• Agency should document consistency with § 7(d) where action or
part of action must proceed prior to completion of consultation (50
C F R § 402.09; § 402 02 deth. “applicant”)
2 Is a “biological assessment” (BA) analyzing effects of the action required?
• BA is required only for “major construction activity” Defined at
50 C.F.R § 402 02 (must also be major federal action under
NEPA. non-construction activity included if similar physical
impacts).
• If BA required, § 402.12 process governs preparation Must use
“best data.. available” (ESA § 7(a)(2))
• If no BA required, still need to do a biological evaluation (BE) of
effects of the action (no procedural reg. requirements) Must use
“best data. available” (ESA § 7(a)(2)).
3. If multiple federal agency actions involved, may designate lead agency to
fulfill consultation duty. Must notif ,’ FWS/N1 ’vIFS of designation (50
C.F R. § 402 07).
4 In emergency circumstances, consultation can be dramatically streamlined
during the emergency. (50 C F R. § 402.05).
D. Consultation Option #1 : Informal Consultation (50 C F R § 402.13) Informal
consultation is optional, so action agency can proceed directly to formal
consultation.
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Analysis of effects of the action (BA or BE) determines whether the action
is “not likely to adversely affect” listed species or critical habitat. It may
be helpfttl to get FWSINMFS input into the analysis. It is also usefW to
consider modifications to the action to avoid any identified likely adverse
effects.
a. FWSINIvIFS must concur in writing with EPA determination of
“not likely to adversely affect.” for informal consultation to be
concluded (50 C F R § 402 13).
b If EPA determines action is likely to adversely affect or if
FWS/NMFS will not concur with EPA “not likely to adversely
affect” determination, “formal” consultation is required (50 C F R
§ 402.14(b)(I)).
2 Agency may designate a “non-federal representative” (e.g., a permit
applicant) to prepare analysis of effects of the action and/or conduct
informal consultation. (50 C.F R. § 402.08).
E Consultation Option #2 Formal Consultation (50 C.F R § 402.14)
50 C F R. § 402 14(c) specifies requirements for initiation of formal
consultation. Service(s) may request additional data, but action agency
may reject request (50 C.F.R. § 402.14(f), 51 Fed. Reg. at 19951-52).
2 Formal consultation with FWS/NMFS generally concludes within 90 days
(50 C F R § 402.14(e)).
3 Next 45 days FWS/NMFS develop “biological opinion” (BO) re whether
action is likely to jeopardize listed species and whether jeopardy-level
adverse modification of critical habitat will result. EPA should
specifically request to review a draft of the BO . (50 C F.R.
§ 402.14(g)(5)).
4 If FWS/N?S4FS find likely jeopardy or adverse modification, they must
propose “reasonable and prudent alternatives” (RPAs) to the action, if
available, that would avoid jeopardy/adverse modification. (50 C.F R.
§ 402 14(h)(3); see also, § 402.02 defn. jeopardy).
• RPAs must be consistent with the intended purpose of the action
and the scope of the action agency’s legal authority, as well as
economically and technologically feasible. (50 C.F R § 402 02
defn RPAs)
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5 BO must also authorize any incidental “take” anticipated by FWS/NMFS
(ESA § 7(b)(4); 50 C F.R. § 402.14(i)).
Incidental take is taking that results from, but is not the purpose of,
an otherwise lawfl.il activity (i.e., does not violate prohibition
against likely jeopardy) of the Federal agency or applicant. (50
CFR § 402.02).
Incidental take is authorized contingent upon reasonable and
prudent measures (RPMs) (along with terms and conditions to
implement RPMs) to minimize take RPMs cannot alter the basic
design, location, scope, duration, or timing of the action and may
involve only minor changes (ESA § 7(b)(4); 50 C F.R
§ 402. 14(i)).
Non-federal activities (e.g., activities of an applicant) may be
covered in the incidental take statement
6 BO also specifies “conservation recommendations” to promote recovery of
listed species. (50 C.F R § 402 14 (j), ESA § 7(a)(1))
7 EPA determines how to proceed in light of the BO. Duty to insure no
jeopardy rests with action agency, so EPA may deviate from FWS/NMFS
determination and RPM if justified
• In contrast, any incidental take is authorized only if RPMs specified
by FWS/NtvIFS are actually implemented
8. Duty to reinitiate consultation. Must reinitiate consultation if discretionary
involvement or control over the action is retained or authorized, and 1)
level of authorized incidental take is exceeded, 2) significant new
information, 3) significant modification of the action, or 4) new species
listed or new critical habitat designated (50 C F R. § 402 16)
UI. ESA Section 7 obligations for Proposed and Candidate Species.
A. If agency action is likely to jeopardize species proposed to be listed or adversely
modify proposed critical habitat, action agency must “confer” with FWS/NMFS
(ESA § 7(a)(4)). 50 C.F.R § 402.10 details conference process Results not
binding on action agency.
• Conference duty not triggered if potential effects are below jeopardy
Purpose of conference, however, is to identify potential conflicts when
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proposed listing is finalized, so a voluntary conference even below jeopardy
may be advisable
B “Candidate” species (imperiled but not yet proposed for listing) and other species
of concern may also be considered in a conference or consultation.
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BIOLOGICAL FACTS
• — 1,250 U S “species” are listed as threatened or endangered
• — 150,000 known U S. species; 31% are at risk of extinction (Stein, B., ed., “Precious
Heritage: The Status of Biodiversity in the United States,” The Nature Conservancy, et
a! , 2000)
• Mean number of individuals of a fish or wildlife species remaining at time of listing
— 1,000 (Wilcove, D., et al, “What Exactly Is An Endangered Species 7 An Analysis of
the U S. Endangered Species List,” Conservation Biolo&v 7(1). 87-93, 1993)
• Mean number of individual plants left at time of listing 120 (Wilcove, et al)
• Pollution generally ranks third behind habitat loss and non-native species invasions as a
threat to imperiled species, pollution threatens approx. 25% of imperiled species; for
aquatic species, however, pollution ranks second behind habitat loss (Wilcove, D, et al,
“Quantifying Threats to Imperiled Species in the United States,” BioScience , 48:607-615,
1998)
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Relevant Citations
Endangered Species Act — 16 U S.C § 1531, etseq.
50 C F R Part 402 — Interagency Cooperation — Endangered Species Act of 1973, As Amended
(FWS/NMFS section 7 implementing regulations), see also, 51 Fed Reg 19926 (June 3, 1986)
50 C F R Part 17 — Endangered and Threatened Wildlife and Plants
50 C F R Part 222 — General Endangered and Threatened Marine Species
Endangered Species Consultation Handbook; Procedures for Conducting Consultation and
Conference Activities Under Section 7 of the Endangered Species Act U.S Fish & Wildlife
Service and National Marine Fisheries Service, March 1998
66 Fed Reg 11202 (February 22, 2001) — Memorandum of Agreement Between the
Environmental Protection Agency, Fish and Wildlife Service and National Marine Fisheries
Service Regarding Enhanced Coordination Under the Clean Water Act and Endangered Species
Act.
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National Historic Preservation Act (16 U.S.C. § 470, eL seq.)
What is the NHPA?
• The NHPA was enacted by Congress in 1966 in response to the increasing loss of
historic properties significant to the Nation’s heritage largely as a result of
extensions of urban centers and highway, residential, commercial, and industrial
development. Among the goals of the NHPA was to preserve the historic and
cultural foundations of the Nation for the benefit of the American people and
future generations
• The NHPA is a multifaceted statute with a variety of initiatives, including
programs for the identification and listing of significant historic resources,
partnerships with federally-approved State and Tribal historic preservation
programs to preserve protected resources, grants, and Federal agency obligations
to consider effects on protected resources in connection with agency undertakings
• Among other things, Congress found that an increased knowledge of historic
resources and the encouragement of their preservation would improve the planning
and execution of Federal and federally-assisted projects 16 U S C § 470(b)(6).
LI. Who Implements the N11PA?
A. The U S Department of the Interior Responsibilities include
• Maintenance of the National Register of Historic Places (a listing of -
significant historic resources protected under the NI-EPA) and promulgation
of eligibility criteria and nomination procedures for the National Register
16 U S.C § 470a(a)(l)-(6).
• Review and approval of State and Tribal historic preservation programs
16 U S C. § 470a(b)-(d)
• Administration of various grant programs 16 U S.C § 470a(e)
• Promulgation of guidelines for Federal agency responsibilities under section
llOoftheNHPA 16USC §470a(g)
B The Advisory Council On Historic Preservation Responsibilities include
• Advising the President and Congress on matters relating to historic
preservation 16 U.S C § 470j
• Promulgation of regulations implementing Federal agency obligations
under of section 106 of the NHPA to consider, and consult on, the effects
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of their undertakings on protected historic resources. 16 U.s.c § 470s
Promulgation of regulations or guidelines regarding appropriate
exemptions from NI-IPA requirements for Federal programs or
undertakings 16 U S C. § 470v.
C What is the Advisory Council On Historic Preservation?
• The ACFIP is an independent Federal agency headquartered in Washington,
D.C at the historic Old Post Office Building at 1100 Pennsylvania Avenue,
NW
• The Council has broad membership consisting of a variety of Federal,
State, Tribal, and local representatives as well as members of the general
public Among the Federal members are the Secretary of the Interior, the
Secretary of Agriculture, and the heads of four other agencies ( currently
including the Administrator of the EPA )
m. What are EPA’s obligations under section 106 of the N11PA?
A Section 106 EPA-is-principal obligation under-the NHPA is the procedural
requirement at-section -106 to considerthe effect of-Agency undertakings_on
protected historic -resources:and to- afford the ACHP an -opportunity tp comment
on-such undertakings Section 106 states
“The head of any Federal agency having direct or indirect jurisdiction over a
proposed Federal or federally assisted undertaking in any State and the head of any
Federal department or independent agency having authority to license any
undertaking shall, prior to the approval of the expenditure of any Federal funds on
the undertaking or prior to the issuance of any license, as the case may be, take
into account the effect of the undertaking on any district, site, building, structure,
or object that is included in or eligible for inclusion in the National Register The
head of AdT 5i Cöthicil onHi toric
Preservation established under Title II of this Act a reasonable opportunity to
comment with regard to such undertaking” 16 U S C § 470f
ACHP implementing regulations for section 106 are located at 36 CFR Part 800
(65 Fed Reg. 77698 (December 12, 2000)) - -
Note: Section 106 and the implementing regulations impose procedural obligations
to consider effects of agency actions on historic resources, to consult with
appropriate entities, and to develop and evaluate ways to minimize or mitigate any
adverse effects There is no substantive requirement to actually avoid or minimize
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adverse effects
B “ Undertakings” triggering section 106 consultation . EPA’s obligations to consult
under section 106 are only triggered where the Agency engages in an undertaking.
The NHPA defines “undertaking” as follows:
‘“Undertaking’ means a project, activity, or program funded in whole or in part
under the direct or indirect jurisdiction of a Federal agency, including -- (A) those
carried out by or on behalf of the agency; (B) those carried out with Federal
financial assistance; (C) those requiring a Federal permit, license, or approval, and
(D) those subject to State or local regulation administered pursuant to a delegation
or approval by a Federal agency” 16 U.S C § 470w(7). see also, 36 CFR
§ 800 16(y).
Under this -definition, ----EPA -has-considered- such actions-as-issuance of Federal
pernjits,. approval of State NPDES programs,- EPA-lead-CERCLA remedial
actions,-and-projects directly funded under the Clean Water Act State water
pollution control revolving fIind program to.co.nstitute undertakings.
C Key steps in the section 106 process
1. Threshold Issue #1 . Determine whether the Agency action constitutes an
undertaking The:Federalaction:agency determines whether its action is an
u ertaki g within the -NHPA definition 36 CFR § 800 3(a)
2 Threshold Issue #2 Determine whether the undertaking has the potential
to affect historic properties Certain undertakings have no potential to
affect historic properties. At training seminars, the ACHP has indicated
that this will likely be a very limited class of undertakings’ including such
actions as Federal funding for a library to purchase books. If there is no
potential to affect historic properties, there is no obligation to consult
under section 106. The Federal action agency makes this determination
36 CFR § 800 3(a)(1).
3 Identify the appropriate State or Tribal Historic Preservation Officer
(SHPO or TFEPO) Althoughundercertaincircumstances the ACHP may
become directly involved m the section 106 ro ess, ithas largely deferred
the consuhation r e to local SHPO’s and THPO’ The e7al actiorc
agency needs to identi& the SHPOITHPO having appropriate jurisdiction
over the relevant area and initiate the consultation. All subsequent
determinations in the process are made in consultation with the appropriate
entities . 36 CFR § 800.3(c)
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4 Involve other appropriate consulting entities In consultation with the
SHPOITHPO, the action agency identifie and includes other entities (local
governments, I diàn Tub iñteiièd rties, theTpübiië) in the section
106 process. 36 CFR § 800 3(e)-(f)
5 Determine the area of potential effects (APE) of the undertaking 36 CFR
§ 800.4(a)( 1). The APE is defined, in relevant part, as “the geographic
area or areas within which an undertaking may directly or indirectly cause
alterations in the character or use of historic properties, if any such
properties exist” 36 CFR § 800. 16(d)
6 Identif ’ any historic properties within the APE As part of the
consultation, the action agency needs to make a reasonable and good faith
effort to identi& historic properties 36 CFR § 80,0 4
• Historic properties protected under the NT-EPA include prehistoric
or historic districts, sites, buildings, structures, or objects included
in or eligible for inclusion in the National Register of Historic
Places, including artifacts, records, and material remains related to
such properties 16 U S C. § 470w(5)
• The NHPA specifically notes that properties of traditional religious
and cultural importance to Indian Tribes or Native Hawaiian
organizations may be eligible for inclusion in the National Register
16 U S C. § 470a(d)(6)(A) At training seminars the ACHP has
noted Tribal assertions of eligibility for culturally significant areas
including traditional dance/ceremonial locations, gathering areas for
sacred grasses, and sacred viewsheds
• Identification of historic properties includes identi ing properties
already listed in (or already determined to be eligible for listing in)
the National Register as well as evaluating properties for eligibility
for listing DOl standards and guidelines f5 id tification ani ’
‘evaliiaIi irof historic properties are located at 48 Fed Reg 44716
(September 29, 1983) Specific eligibility criteria for inclusion in
the National Register are found at 36 CFR Part 60 It may also be
necessary to request DO! eligibility determinations for specific
properties pursuant to 36 CFR Part 63
7 effects:o(f-the undertaking o J Ientified historic properties As
to pl the:critei ia—of
\ —---- 1
.adverse- effect to determihethe pf hce of any adverse effects on historic
properties 36 CFR § 800 5
4
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• An adverse effect exists “when an undertaking may alter, directly or
indirectly, any of the characteristics of a historic property that
qualif r the property for inclusion in the National Register in a
manner that would diminish the integrity of the property’s location,
design, setting, materials, workmanship, feeling, or association.”
36 CFR § 800 5(a)(1)
• Note: “Adverse effects may include reasonably foreseeable effects
caused by the undertaking that may occur later in time, be farther
removed in distance or be cumulative” 36 CFR § 800 5(a)(1)
8 ( esolvea efse effects As part of the consultation, the parties evaluate
alternatives-or modifications to the undertaking that could avoid, minimize.
or mitigate any adverse effects on historic properties 36 CFR § 800 6
• Measures that are adopted to resolve adverse effects are often
documented in memoranda of agreement or programmatic
agreements which then govern the undertaking
• Note: Where no agreement can be reached to resolve adverse
effects, consultations can be concluded through termination 36
CFR § 800.7.
D. Potential legal downside Litigation challenging agency compliance with section
I 06:is generaEly:directed at:allegedfailures:to:fully:implement -the consultation
process-with:respect to a:particular:undertaking Appropriate remedies may
include injunction of agency actions pending compliance with the procedural.
requirements.
IV. What are EPA’s responsibilities under section 110 of the NHPA (16 U.s.c.
§ 470h-2)?
Section 110 contains a variety of provisions generally aimed at promoting internal Federal
agency programs related to historic preservation and appropriate stewardship and
preservation of historic properties under the jurisdiction of Federal agencies
Relevant provisions of section 110 require Federal agencies (i) to establish a
preservation program to ensure that historic properties that may be affected by
agency actions are given full consideration in planning and that agency procedures
to comply with section 106 are consistent with ACHP regulations, (ii) to ensure
appropriate documentation of historic properties substantially altered or
demolished by agency action and of decisions made under section 106 where no
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agreement resolving adverse effects has been reached, and (iii) to consider and
carry out (consistent with agency mandates and missions) programs and projects
which will further the purposes of the N}LPA.
• DOl standards and guidelines implementing section 110 are located at 63 Fed
Reg 20496 (April 24, 1998)
• Section 110 also contains two provisions imposing substantive requirements on
Federal agencies
National Historic Landmarks With respect to any undertaking which may
directly and adversely affect a property designated as a National Historic
Landmark, Federal agencies must (prior to approving such undertaking and
to the maximum extent possible) “undertake such planning and actions as
may be necessary to minimize harm to such landmark” and afford the
ACHP an opportunity to comment on the undertaking. 16 U S C § 470h-
2(f ), see also, 36 CFR § 800 10 (ACFIP implementing regulation), 63 Fed
Reg. at 20503 -04 (DOl implementing guidelines)
2 Anticipatory Demolition Federal agencies must not grant loans, loan
guarantees, permits, licenses, or other assistance to any “applicant who,
with intent to avoid the requirements of section 106, has intentionally
significantly adversely affected a historic property to which the grant would
relate, or having legal power to prevent it, allowed such significant adverse
effect to occur, unless the agency, after consultation with the Council,
determines that circumstances justify granting such assistance despite the
adverse effect created or permitted by the applicant” 16 U S C § 470h-
2(k), see also, 36 CFR § 800 9(c) (ACHP implementing regulation), 63
Fed Reg at 20503 (DOl implementing guidelines)
V. What roles does the NIIPA create for Indian Tribes?
A Tribes may apply to DOl to assume all or part of the functions of State Historic
Preservation Officers, including the role of consulting party in the section 106
process, with respect to Tribal lands 16 U S C § 470a(d)(2)
• Tribal lands include all lands within the exterior boundaries of an Indian
reservation and all dependent Indian communities 16 U S C § 470w( 14)
• The Tribal Historic Preservation Officer (THPO), in lieu of the SHPO, is
the appropriate section 106 consulting party for undertakings occurring on,
or affecting historic properties located on, Tribal lands 36 CFR
§ 800 2(c)(2)(i)(A), 800 3(c)(1)
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• Note. For undertakings occurring on Tribal lands but affecting historic
properties located off Tribal lands, the SF [ PO participates in the section
106 process in addition to the THPO 36 CFR § 800 2(c)(1)(ii)
• Note: Owners of properties on Tribal lands which are neither owned by a
member of the Tribe nor held in trust by the Federal government for the
benefit of the Tribe may request that the relevant SHPO participate in the
section 106 process in addition to the THPO 16 U.s c
§ 470a(d)(2)(D)(iii); 36 CFR § 800 2(c)(1)(ii), 800 3(c)(1).
B Tribes that have not assumed the frmnctions of a SHPO for purposes of the section
106 process are still required consulting parties for undertakings occurring on, or
affecting historic properties located on, Tribal lands Action agencies consult with
a designated representative of such Tribes in addition to the relevant SHPO. 36
CFR § 800 2(c)(2)(i)(B)
C As part of the section 106 process, action agencies must also consult with any
Indian Tribe or Native Hawaiian organization that attaches religious and cultural
significance to historic properties that may be affected by an undertaking 1 6
U S C § 470a(d)(6)(B), 36 CFR § 800 2(c)(2)(ii)
• This requirement applies regardless of the location of the historic
properties (i.e., both on and off Tribal lands)
Action agencies must make a reasonable and good faith effort to identify
such interested Tribes/Native Hawaiian Organizations
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EPA Contacts
Headquarters Contacts
Patricia Haman
Federal Preservation Officer
Office of Federal Activities
202-564-7152
Tod Siegal
Office of General Counsel
Cross-Cutting Issues Law Office
202-564-5552
Regional Preservation Contacts
Region 1 Jean Brochi—617-918-1536
Region 2 Bob Hargrove — 212-637-3504
John Vetter — 212-637-3739
Region 3 Catherine King — 215-814-2657
Region 4 Ramona McConney — 404-562-9615
Region 5 Virginia Laszewski — 312-886-7501
Region 6 David Bond — 214-665-643 1
Region 7 vacant (NEPA program coordinator Joe Cothern — 913-551-7148)
Region 8 vacant (acting NEPA program coordinator Elyana Sutin — 303-312-6899)
Region 9 Nova Blazej — 415-972-3846
Region 10 Mike Fagan — 206-533-6646
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Relevant Citations
National Historic Preservation Act — 16 U S.C § 470, el. seq.
36 CFR Part 800 — Protection of Historic Properties (ACHP section 106 implementing
regulations), see also, 65 Fed. Reg 77698 (December 12, 2000)
36 CFR Part 60 — National Register of Historic Places
36 CFR Part 63 — Determinations of Eligibility for Inclusion in the National Register of Historic
Places
63 Fed Reg 20496 (April 24, 1998) — The Secretary of the Interior’s Standards and Guidelines
for Federal Agency Historic Preservation Programs Pursuant to the National Historic Preservation
Act (Section 110 implementing guidelines).
48 Fed Reg 44716 (September 29, 1983) — Archaeology and Historic Preservation, Secretary of
the Interior’s Standards and Guidelines
Advisory Council On Historic Preservation web site — www achp gov
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Privileged — For internal agency use only — Do not release under FOL4
OUTLINE OF PAPERWORK REDUCTION ACT
for
EPA ENFORCEMENT PERSONNEL
presented by
Barbara Pace, OGC, Cross-Cutting Issues Law Office
June 20, 2001
• Introduction - What is the Paperwork Reduction Act?
0 The Paperwork Reduction Act of 1995 requires federal agencies, including EPA,
to obtain 0MB approval before “obtaining, causing to be obtained, soliciting, or
requiring the disclosure to third parties or the public, of facts or opinions by or for
an agency, regardless of form or format,” calling for answers to “identical
questions posed to, or reporting or recordkeeping requirements imposed on, ten or
more persons, other than agencies, instrumentalities, or employees of the United
States” 44 U.S C §3502(3).
o The purposes of the PRA include minimizing the paperwork burden for the public,
and ensuring the greatest possible public benefit from information collected by or
for the federal government.
o 0MB is the agency authorized to administer and interpret the PRA, thus, OMB’s
regulations and interpretations get deference from the courts 0MB has issued
regulations and draft guidance implementing the PRA.
• What “persons” are covered? 5 C FR. § 1320 3
o PRA applies to information collected from individuals and entities, including
partnerships, associations, and corporations.
o Includes requests to state, local and tribal governments, and other political
subdivisions
— The state, local or tribal government may include its own questions in a
collection of information that were not requested by a federal agency If
these added questions do not need federal approval or change the nature of
the federal collection of information, they are considered to be a collection
of information by the state or local entity 6/2/99 0MB draft guidance sec
H.A.4
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Privileged — POT internal agency use only — Do not release under FOJA
Does not include current employees of the federal government if the questions
relate to their official capacities, unless the questions are to be used for general
statistical compilations showing the status or implementation of federal activities
and programs.
• uw do you count “ten or more persons”? 5 C FR. § 1320 3(c)(4)
- includes the persons to whom the agency addresses a collection of information
within any I 2-month period
t’ Includes “any independent entities to which the initial addressee may reasonably be
expected to transmit the collection of information, . . including independent State,
territorial, tribal or local entities and separately incorporated subsidiaries or
affiliates.” Possible examples trade associations or associations of state agencies
who would get the requested information from their members; states who would
get requested information from regulated parties; companies who would get
information from parents, affiliates or subsidiaries Center for Auto Safety v
NHTSA , 244 F 3d 144, 148-149 (D.C. Cir 2001).
Any recordkeeping, reporting or disclosure requirement contained in a “rule of
general applicability” is deemed to involve ten or more persons. The PR.A does
not apply to rules that are explicitly limited to 9 or fewer persons.
C Any collection of information addressed to all or a substantial majority of an
industry is presumed to involve 10 or more persons. EPA can rebut this
presumption by showing that 9 or fewer persons are affected
• Vhat does it mean to “conduct” or “sponsor” a collection of information? 5 C F R.
p320 3(d)
0’ Under 0MB regulations, EPA must obtain 0MB approval if it either “conducts”
or “sponsors” a collection of information
0 EPA “conducts” a collection of information if it collects the information using its
own staff and resources
0 EPA “sponsors” a collection of information if it
— causes another person or agency to collect, obtain, retain, or solicit
information,
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Privileged — For internal agency use only — Do not release under FOL4
— requires a person to disclose or provide information to a third party or the
public (“third party disclosure”).
U Disclosure may include posting, notification, labeling or similar
disclosure requirements, including training programs when the
agency specifies the content of the training. It also includes
requirements that individuals provide information to state, local or
tribal governments. 0MB 6/2/99 draft guidance secs H A 2 b,
11C5
• However, the PRA does not apply if an agency requires a person to
provide a label or otherwise disclose information where the text is
completely supplied by the agency.
— “contracts or enters into a cooperative agreement with a person to collect
the information”
0 If the collection of information is undertaken by a grant recipient, EPA is
considered the sponsor if either one of the following conditions applies (If neither
of the conditions applies, EPA may still be considered the sponsor if the Agency
exercises control or gives the appearance of sponsorship) Note that these
conditions apply only to grants, and not to contracts or cooperative agreements
— (1) EPA is the sponsor if the grant recipient is conducting the collection of
information at the “specific request” of the Agency (e.g., in the grant
solicitation).
— (2) EPA is the sponsor if the terms and conditions of the grant require
specific approval by EPA of the collection of information or collection
procedures.
o Section ll.A. of the 6/2/99 0MB draft guidance provides that an agency may be
considered the sponsor of a privately conducted survey if the agency
— exercises control over or tacitly approves the survey (e.g, by reviewing
and commenting on the text of the survey) or
— gives the appearance of sponsorship, e g, if the agency publicly endorses
the survey, the survey uses the agency seal, or there are statements in the
instructions indicating that the survey is being conducted to meet the
agency’s needs.
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Pri&ged — For internal agency use only — Do not release under FOJA
S What t es of collections are covered? 5 C F R. § 1320.3
0 R A applies if information is requested via “identical questions” or “identical
Eporting, recordkeeping or disclosure requirements”
-- 0MB’ s 6/2/99 draft guidance indicates that questions do not need to be
phrased exactly the same way each time they are asked, nor does each
respondent need to be asked the same set of questions For example,
survey information can be obtained by means of one general question or by
variants of the general question that are tailored to each respondent. If
both types of questions request the same information, they should be
viewed as “identical questions” under the PRA. 6/2/99 0MB draft
guidance sec H.C 4.
o &ludes requirements that are mandatory, voluntary, or required to obtain or
iiain a benefit.
o hcludes questions in any form or format - numerical, graphic, narrative; oral,
witten, electronic
— Includes, among other things, report forms, application forms,
questionnaires, surveys, reporting or recordkeeping requirements, plans,
rules or regulations, requests for proposal or other procurement
requirements, oral communications, posting, notification, labeling,
telephone requests, electronic requests, techniques used to monitor
compliance.
• What types of information are j covered by the PRA?
o lizesrigative/Enforcement exemption - Collections of information in certain
e rcement- or national security-related situations are exempt from the PRA
1 se include, among others, collections of information during the conduct of a
fe eral criminal investigation or prosecution, during the conduct of a civil action in
v 11ch the U S. is a party, or during the conduct of an administrative action,
inestigation or audit involving an agency against specific individuals or entities 5
CFR. §1320.4
— The exemption applies only after a case file or equivalent is opened with
respect to a particular party 5 C F R. § 1320 4(c), 6/2/99 0MB draft
4
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Privileged — For internal agency use only — Do not release under FOL4
guidance sec ll.D. Neither the regulations nor 0MB guidance ftirther
explain the meaning of “case file or its equivalent.”
— The exemption applies during the entire course of the investigation, audit,
or action, whether before or after the agency files formal charges or
complaints. 5 C.F.R. §1320.4(c).
• Section ll.D. of OMB’s 6/2/99 draft guidance explains that the
exemption ends when the relevant decisionmaker (e g, federal
judge, AU, agency inspector) issues an order or opinion and all
appeals or opportunities to appeal are completed The exemption
continues to apply during any subsequent action to determine fines
or penalties.
— The exemption does not apply to information collected from a category of
individuals or entities, such as a class of licensees or an industry. 5 C.F.R.
§ 1320.4(c).
• Section ll.D. of OMB’s 6/2/99 draft guidance explains that the
exemption does not apply to general investigations or audits that
are not directed against a particular party. The exemption does
apply to collections from some or all members of a category if the
agency collects the information after opening a case file directed
against a particular party and the collection is “designed to obtain
information relative to the complaint or allegation, or to follow-up
administrative or judicial proceedings.”
0 Identical questions - Some types of questions may not be covered by the PRA
because they may not be considered “identical questions” 6/2/99 0MB draft
guidance sec H C.4 The draft guidance indicates that whether a question is
“identical” depends on whether respondents are being asked to provide the same
level of information on the same subject. Nonspecific or nondirective questions
may not be considered “identical” if they allow respondents to choose the
information to be provided and allow each respondent to interpret the collection
differently. Examples given by 0MB includeS
— Requests for information that the respondent wishes to provide on a
specific topic, when the agency does not further speciI y the information
being sought or a means of demonstrating compliance.
— A nondirective request for a respondent’s experience with a Federal
program.
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Privileged — For internal agency use only — Do not release under FOJA
— A request for public comment on a published report
— An undifferentiated “suggestion box” format or general solicitation of
comments, such as a request for “ideas, comments, suggestions or anything
else you would like to tell us to improve the web site,” or a request that “if
you experience any technical problems with our site, or have any
suggestions for improving it, please let us know,” or a request asking about
the possible need for additional information on a web site
0 Not “information ” - Under 0MB regulations, certain items are not considered to
be “information” and thus are not subject to the PRA. 5 C F R. § 1320 3(h).
— (1) Certifications, receipts, changes of address, consents or
acknowledgments, provided they entail no burden other than that necessary
to identil\j the respondent, the date, the respondent’s address, and the
nature of the instrument However, the PRA likely would apply if the
certification is a substitute for a collection of information to monitor
compliance with regulatory standards, which would generally entail
additional burden.
— (2) Samples of products or other physical objects
• 0MB construes this to include copies of written material (e.g
material disseminated or used at a training session) that is already
available in a form suitable for distribution and is provided in that
form to all requesters However, a request is not exempt if the
information has to be compiled, or if it is not provided to any
person who requests it. 6/2/99 0MB draft guidance sec H E.2.
— (3) Facts or opinions obtained through direct observation or through
nonstandardized oral communication in connection with direct
observations
—. (4) Facts or opinions submitted in response to general solicitations of
comments from the public, published in the Federal Register or other
publications, regardless of the form or format The exemption does not
apply if EPA asks for specific information pertaining to the commenter as a
condition of the agency’s fill consideration of the comment, other than
information necessary for the comnienter to identif& itself.
• Section H.EA. of OMB’s 6/2/99 draft guidance explains that this
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Privileged — For internal agency use only — Do not release under FOJA
includes any general request for comment published in the Federal
Register or other publications, even if the agency asks for specific
comment about certain matters.
— (5) Facts or opinions obtained from individuals under treatment or clinical
examination. Information must be obtained in connection with research on
or prophylaxis to prevent a clinical disorder, direct treatment of the
disorder, or the interpretation, identification or classification of specimens
— (6) A request for facts or opinions addressed to a single person
— (7) Examinations designed to test the aptitude, abilities, or knowledge of
the persons tested, and collection of information for identification or
classification in connection with such examinations
— (8) Facts or opinions obtained or solicited at or in connection with public
hearings or meetings
• Section ll.E.8. of OMB’s 6/2/99 draft guidance indicates that this
includes questions addressed to a specific person or group of
persons, or the general public, to indicate their intention to
participate in a public hearing or meeting; questions that ask the
participants to identify themselves and the topics they wish to speak
about; and all questions that may be asked at the hearing or
meeting Neither the regulations nor 0MB guidance fI.irther explain
the meaning of “public hearings or meetings.”
— (9) Facts or opinions obtained or solicited through nonstandardized
follow-up questions designed to clarify responses to approved collections
of information, and
— (10) Like items designated by 0MB
How is the public protected by the PRA? 5 C F R § 1320 3, 1320 6
0 If a collection of information that is subject to the PRA does not display a
currently valid 0MB control number, EPA may not impose a “penalty” on a
person for failing to comply with it.
— “Penalty” not only includes fines, judgments and other types of relief, it
also includes the revocation, suspension, reduction or denial of a grant or
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Rivileged — For internal agency use only — Do not release under FOL4
benefit 5C.FR §13203(j)
— 0MB regulations provide that if EPA has imposed a collection of
information as a means of qualifying for a benefit, and EPA has not
complied with the PRA, the Agency cannot use the person’s failure to
comply, in and of itseli as grounds for withholding the benefit The
Agency must instead permit respondents to show they satisfy the legal
conditions in any other reasonable manner
o The PRA defense may be raised at any time
— A recent case holds that a respondent may use the PRA as a defense even
after submitting the information Center for Auto Safety v NHTSA , 244
F 3d 144, 149-50 (D C Cir 2001)
o Even if EPA has not complied with the PRA, the Agency may still enforce a
collection of information that is “imposed on the person by statute,” such as a
statutory requirement for a person to provide notification before exporting
hazardous waste 5 C F R §1320.6(e). However, this principle does not extend
to situations in which the statute authorizes EPA to impose a collection of
information, and the Agency does so, as when EPA issues a recordkeeping
requirement under the general rulemaking authority of a statute
o OMB’s failure to approve the information collection provisions in a final rule does
not prevent these provisions of the rule from becoming final and effective Rather,
a affects EPA’s ability to enforce the information collection requirements an
affected party may raise the PRA as a defense if the agency attempts to impose a
penalty for the party’s failure to respond to a collection of information If a
provision contains substantive as well as information collection requirements, the
Agency can still enforce the underlying substantive requirements. $ , g, Saco
River Cellular. Inc v FCC , 133 F 3d 15 (D C Cir 1998), United States v LTV
Steel Co. , 116 F Supp.Zd 624 (W D. Pa 2000).
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FEDERAL ADVISORY COMMITTEE ACT (FACA)
Summary of Legal Requirements
By Marilyn Kuray
What is FACA?
I The Federal Advisory Committee Act, or FACA, (5 U.s C App 2) is the statute
that governs all EPA advisory committees
2 FACA sets out meeting procedures that all advisory committees must follow.
H. What is an Advisory Committee?
1 An “advisory committee” is any committee or other group that is established or
utilized by the President or a federal agency to provide group advice or
recommendations and which includes individuals who are not full-time federal
employees
2 Federal advisory committee members are drawn from many different occupational
and industry groups and geographical sections of the United States and its
territories
ifi. The Purpose of an Advisory Committee
1 Advisory committees are established to provide advice to the Administrator of
EPA. Each advisory committee is charged with providing advice on a particular
area or issue.
2 The objectives and scope of activities for each advisory committee are set out in
the committee’s charter.
IV. Legal Requirements For FACA Committees
I. Each advisory committee must have a charter that contains 1) the committee’s
objectives and the scope of its activities, 2) the period of time necessary for the
committee to carry out its objectives; 3) the agency responsible for providing the
necessary support for the committee, and 4) a description of the duties for which
the committee is responsible
2. Advisory committees must be “fairly balanced” in points of view represented
3 Generally, advisory committee meetings must be open to the public In certain
cases a meeting can be closed providing specific procedures are followed
4 Timely notice of each advisory committee meeting must be published in the Federal
Register.
5. Minutes must be kept of all advisory committee meetings.
6. Interested persons may file written statements with any advisory committee, attend
any advisory committee meeting (unless closed), and appear before any advisory
committee.
May 1, 2001
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7 A Designated Federal Official (DFO), who is a full-time EPA employee, must
attend each meeting This person approves meeting agendas, calls the meetings,
and adjourns any meeting upon a determination that to do so is in the public
interest.
S All advisory committee documents, including draft reports, working papers and
other documents prepared by or for an advisory committee must be made available
to the public Drafts prepared by individual members alone or in a work group
setting before they are presented to the advisory committee as a whole may be
exempt from this requirement . -
V. Parent Committees and Subcommittees
I Both the parent committee (the chartered committee) and its subcommittees are
subject to all of the FACA requirements, including balanced membership, open
meetings and availability of records (See section IV above.)
2 Subcommittees may not provide advice or recommendations directly to EPA The
subcommittee must present all recommendations to the parent committee for
further deliberations and adoption. The parent committee may not rubber stamp
subcommittee recommendations
VI. Working Groups
I A working group is a meeting of two or more advisory committee members for the
purpose of analyzing relevant issues and facts, drafting proposed position papers, or
conducting research for a chartered committee or subcommittee These meetings
are exempt from the FACA openness requirements.
2 Working groups can meet in closed session to
a. develop work plans to guide activities of the advisory committee;
b gather facts and information for later review by the parent committee or
subcommittee,
c formulate possible recommendations for later review by the parent
committee or subcommittee;
d. perform studies for later review by the parent committee or subcommittee, and
e draft reports for later review by the parent committee or subcommittee
3 Consultants and advisors (including EPA and other Federal employees) who are
not necessarily members of the parent committee or subcommittee may attend
working group meetings
4 Working groups cannot give advice and recommendations directly to EPA, they
must work through the parent committee Moreover, EPA staff may not use the
advice and recommendations of a working group (or subcommittee) prior to it
being forwarded to EPA as a recommendation of the chartered advisory
committee.
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5 EPA encourages working groups to allow interested members of the public to
attend working group meetings when practicable
VII. Invitational Travel Expenses
Travel and per diem expenses of advisory committee members may be paid only
under 5 U S C § 5703 through the issuance of invitational travel orders. These
invitational travel and per diem expenses must be charged to an appropriate EPA
travel account.
2. Invitational travel orders may be issued only when an individual is requested to
confer on a matter of official business, to make a presentation, or other wise
provide some direct service face-to-face- with an Agency official. An individual
who is attending a meeting simply to observe is not providing a direct service to
the Agency and is not entitled to payment of expenses under 5 U S C § 5703
3 Invitational travel orders may be issued to work group participants, advisory
committee consultants, or others who are not members of a subcommittee or the
parent committee to provide a participatory service to EPA at an advisory
committee meeting However, as discussed above, they may not receive
invitational travel orders to attend an advisory committee meeting merely to
observe
4 Invitational travel may not be used to allow a group of interested stakeholders to
convene and discuss issues if EPA is not present at the meeting.
5 EPA can appoint special Government employees (SGEs) to serve as staff members
or consultants to an advisory committee and its subcommittees. Such individuals
provide technical, scientific, or other assistance.
Vifi. Appointment and Removal of Advisory Committee Members
I Most EPA advisory committee members are appointed by the Administrator of
EPA or her designee. EPA also has a few advisory committees whose members
are appointed by the President
2 While the appointing official may consult interested parties regarding these
appointments (for instance by soliciting comments through a Federal Register
notice or discussing potential nominees with current advisory committee
members), the appointing official is the ultimate decision maker concerning all
membership matters.
3. All advisory committee members serve at the discretion of the appointing official.
The Administrator or her designee has the authority to remove individuals from
advisory committees. Even if the advisory committee member was given a term of
appointment, it is clear that any such provision merely means that an appointee
cannot serve beyond the assigned term.
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IX. Anti-Lobbying Restrictions
1 Legislation affecting EPA routinely is pending in Congress Therefore. it is
important to remember the restrictions against “grass roots” lobbying These
restrictions are based on a criminal statute, 18 U S C § 1913
2 The only “official” function of advisory committee members is to provide advice
and assistance to EPA
3 Members may not lobby Congress in their capacity as advisory committee
members Members should not identif ’ themselves as such in oral or written
communications to Congress. Of course, this in no way restricts advisory
committee members from communicating with Congress on any matter, including
those that concern EPA, in their personal capacities without reference to their
affiliation with the advisory committee.
4 EPA employees may not direct or encourage advisory committee members to
contact Congress concerning pending legislation.
5 Advisory committee funds or official advisory committee meetings may not be used
to develop a strategy for lobbying Congress
6 To avoid the appearance of impropriety, if a advisory committee member receives
travel and per diem funds from EPA to travel to Washington for a meeting, that
member should not contact Congress on the days he/she is performing duties as a
member
X. Conflicts of Interest
1 Most EPA advisory committee members serve as representatives to present the
view s of a non-governmental organization or group to which they belong.
Representative members are not officers or employees of the Federal Government
and, therefore, are not subject toe the conflict of interest laws.
2 However, EPA may impose certain case-by-case restrictions for advisory committee
members For instance, even representative advisory committee members should not
participate personally and substantially as members in particular matters (such as
grants, contracts, licenses, permits, or litigation) to which they or their employers are
a party
May 1, 2001 -4-
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FACA ____________
01. Does collection of Individuals Include
Question Non 2 Govemm ñt personnel ?
Tree Yes
+ FACA does I ot apply
02. Do Individuals Have a Cohesive Or ani ational
Structure ?
Yes No
03. - Is That Cohesive Organizational Structure -
a Result of Agency Effort? 04. Is Group Sub jeci to Strict Agency Man genient
or Control ?
Yes No
Yes No
FACA applies FACA does not apply
FACA does not apply
05. Does Controlled Group Render Specific Advice or
Recommendatiot ?
No
4,
FACA applies FACA does ot apply
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GROUPS EXEMPT FROM FACA
• Groups composed of Federal employees
• Meetings with state, local, and tribal officials
• Fact-finding and information exchange committees
• Meetings with persons providing individual advice and
recommendations as opposed to collective advice
• Meetings with Federal officials initiated by a group for the
purpose of expressing their view , provided that the group
is not subject to strict government management or control
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GENERAL REQUIREMENTS OF FACA
• Obtain a charter
• Maintain a balanced membership
• Hold open public meetings
• Allow the public to speak or file written statements
• Announce all meeting in the Federal Register - 15 days in
advance
• Keep minutes or summaries
• Maintain all committee documents for public inspection
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IDEWTWYING AND ADDRESSING ENVIRONMENTAL JUSTICE ISSUES
Ho does EPA define environmental justice?
a. “The Agency defines environmental justice to mean the fair treatment of people of
all races, cultures, and incomes with respect to the development, implementation,
and enforcement of environmental laws and policies, and their meaningful
involvement in the decisionmaking processes of the government.” Administrator’s
Memorandum, “EPA’s Commitment to Environmental Justice”(Aug. 9, 2001)
[ Note: this document and most others cited below are on EPA’s environmental
justice website, at (“EJ website”)]
b Fair treatment: “no group of people, including a racial, ethnic, or a socioeconomic
group, should bear a disproportionate share of the negative environmental
consequences resulting from industrial, municipal, and commercial operations or
the execution of federal, state, local, and tribal programs and policies.” (EJ
website)
c Meaningful involvement: “(1) potentially affected community residents have an
appropriate opportunity to participate in decisions about a proposed activity that
will affect their environment and/or health, (2) the public’s contribution can
influence the regulatory agency’s decision, (3) the concerns of all participants
involved will be considered in the decision making process; and (4) the decision
makers seek out and facilitate the involvement of those potentially affected.” (EJ
website)
2 Wbt. is EPA’s authority to identify and address environmental justice in its
acthns?
a EPA is committed to a policy of integrating environmental justice into all of its
actions under existing authorities.
“To the greatest extent practicable and penmtted by law each Federal agency
shall make achieving environmental justice part of its mission by identifying and
addressing, as appropriate, disproportionately high and adverse human health or
environmental effects of its programs, policies, and activities on minority
populations and low-income populations . .“ Exec. Order 12,898, Sec. 1-101
(Feb. 11, 1994)
“The Environmental Protection Agency has a firm commitment to the issue of
environmental justice and its integration into all programs, policies, and activities,
consistent with existing environmental laws and their implementing regulations
Environmental statutes provide many opportunities to address environmental
risks and hazards in minority communities and/or low-income communities.
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App 1 lication of these existing statutory provisions is an important part of this
Agency’s effort to prevent those communities from being subject to
disproportionately high and adverse impacts, and environmental effects.”
Administrator’s Memorandum, “EPA’s Commitment to Environmental Justice,”
(Aug 9, 20Q1).
b This commitment to environmental justice has been supported by reference to
cross-cutting statutory authorities (see, e g, the Presidential Memorandum issued
withEO. 12, 898):
NEPA and CAA Section 309 (for federal actions)
ii Title ‘/1 (for federal oversight of state or local government actions)
c Agency authoritv E 0. 12, 898 calls upon federal agencies to implement its
provisions “consistent with, and to the extent permitted by, existing law.” E. 0.
12,g98, Section 6-608. Thus, its implementation depends upon an agency’s
underlying legal authority. At EPA, the Office of General Counsel has considered
in some contexts how EPA’s statutory and regulatory authority may provide
opportunities for the Agency to promote environmental justice A recent OGC
memorandum examines this subject with respect to EPA permitting programs See
Memorandum from Gary Guzy, General Counsel, to EPA Assistant Administrators
for Enforcement and Compliance Assurance, “EPA Statutory and Regulatory
Authorities Under Which Environmental Justice Issues May Be Addressed in
Permitting” (December 1, 2000).
d Environmental Appeals Board . The EAB has considered the extent of EPA’s
discvetion to implement E.O 12, 898 in some permitting contexts See, e g.,
Che,rncal Waste Management of Indiana, RCRA Appeal Nos. 95-2 & 95-3, 6
E.AD 66 (June 29, 1995).
3. What guidance is available when identifying and addressing environmental justice
issues in particular EPA actions?
Environmental justice concerns are implicated in any EPA action that distributes
environmental benefits and burdens — from broad actions such as rulemaking and policy
development, to specific enforcement, permitting, or site remediation activities.
Environmental justice concerns may also be raised by citizen allegations, which do not
always tailor themselves to EPA’ s usual understanding of its roles and authorities in
protecting human health and the environment. Developing general guidance on addressing
environmental justice in such a range of factual and legal contexts presents obvious
difficulties The following documents may suggest useful approaches and tools even when
not directly applicable to your decisionmaking context
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a General approaches : Several regional guidances offer procedures to assess and
address issues related to environmental justice in a variety of relatively discrete
EPA actions (permitting, enforcement, public participation activities). These
procedures are generally supported by geographical information system (GIS)
tools tailored to the guidance, to help make the approach more functional and less
resource-intensive in practice — and thus more likely to be integrated into existing
decisionmaking processes. (See materials developed by Regions 2, 5, and 6. Other
regions also have significant expertise in use of GIS tools for environmental justice
analysis, and hands-on experience in addressing citizen concerns)
National guidance is pending from the Office of Environmental Justice
Among other elements, this document offers a general approach to assessing
allegations related to environmental justice As it stands, this document offers an
extensive set of tools and data sources to use in an environmental justice
assessment. [ NB: This draft document will receive a 120-day public comment
period, and was under internal review when this outline was prepared.]
b. Approach under NEPA and CAA 309 : “Final Guidance For Incorporating
Environmental Justice Concerns in EPA’s NEPA Compliance Analyses,” Office of
Federal Activities (April 1998), “Environmental Justice Guidance Under NEPA,”
Council on Environmental Quality (December 1997) These documents offer
available tools and possible approaches that could be useful in a variety of
contexts, given the breadth of issues normally considered in NEPA reviews. The
CEQ guidance also includes a “Guidance for Agencies on Key Terms in E.O
12,898’ (see Appendix A), including guidance on key terms such as “minority,”
“low-income,” “minority or low-income population,” and “disproportionately high
and adverse” While superseded in some respects by later policy development,
review of these definitions can offer a clear and concise starting point to think
about various issues central to assessing and addressing environmental justice
“Guidance for Consideration of Environmental Justice in Clean Air Act
Section 309 Reviews,” Office of Federal Activities (July 1999). This document
provides guidance when EPA is commenting on environmental impacts associated
with certain proposed actions of other federal agencies. It offers a useful Q&A on
issues commonly encountered in environmental justice analyses
c Facility siting “Social Aspects of Siting RCRA Hazardous Waste Facilities,”
OSWER (April 2000)
This is a booklet developed for industry and state and local government to
use during the siting process. It is a good source of basic information on ways to
identif ’ and address environmental justice concerns early in any permitting process.
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d Multidimensional issues : “Status Report on the Environmental Justice
Collaborative Model: a Framework to Ensure Local Problem-solving,” Federal
Interagency Working Group on Environmental Justice (1WG) (February 2002).
(Note. The IWG, comprised of 11 federal agencies, was created by E 0. 12,898 to
assist with its implementation.)
While not guidance per Se, this document summarizes 15 ongoing projects
throughout the country that are part of a developing approach to “comprehensively
and proactively” address “the interrelated environmental, public health, economic,
and social concerns collectively known as environmental justice issues “ The
projects involve two or more federal agencies working with various local
stakeholders They use various tools and techniques, and are directed to issues
that “(1) cut across [ federal] agency jurisdictions or areas of expertise; (2) involve
many stakeholders holding mutually inconsistent perspectives about the nature of
the issues confronting them; and (3) involve parties having longstanding,
adversarial relationships.” Whçn sufficient information has been collected from
these demonstration projects, the LWG expects to develop more generalized
guidance for addressing such issues. In a sense, collaborative problem-solving
picks up where an action-specific environmental justice analysis leaves off It is
worth keeping in mind as a long-term response where an analysis finds significant
issues that cannot be addressed within the context of a discrete EPA action.
4. Wkn should EPA carry out an environmental justice analysis?
11i threshold question gets to the heart of EPA’s commitment to environmental justice:
whi. does it mean to integrate environmental justice into “all programs, policies, and
acti. ities?” For counseling purposes, the question most often arises in the (large) subset
of latively discrete Agency actions permitting and approvals, enforcement actions
(inázding targeting, prosecution, and resolution); and cleanups (including CERCLA site
relEdiation and RCRA corrective action)
Cuii ntly, the decision whether to conduct an environmental justice analysis is left mainly
to Qse-speciflc discretion, as informed by existing policy. Some relevant factors for this
decsion include
• whether allegations related to environmental justice have been raised,
• what resources are available,
• whether pre-screening analysis indicates that there are likely to be environmental
justice concerns (based on demographics and/or indicators of heightened risk) [ The
general goals of pre-screening, as used in regional guidance documents, are to
allocate limited assessment resources to populations most likely to be of concern
under the terms of E.0 12,898; and to promote routine and consistent
consideration of the potential for environmental injustice by program stafi],
4
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• whether the contemplated decision allows for a potentially significant residual
impact (e.g, a human health or environmental impact that is ordinarily considered
acceptable as part of a final Agency decision, but that could be recognized as
unacceptable if other factors such as background concentrations andIor sub-
populations were considered).
5 How should EPA carry out an environmental justice analysis?
As indicated above, there are variations within available (and expected fliture) guidance on
how to assess issues related to environmental justice in the context of specific actions.
Available guidance leaves significant room for case-specific judgment.
That said, there are core components shared by all analyses (a) the demographic
evaluation, (b) the impact evaluation; and (c) the mitigation plan. In other words - who is
affected, what are the effects, and what can and should be done about it?
Some general points to keep in mind
• In addition to the knowledge and resources provided by the Office of
Environmental Justice, every Region and Headquarters Office has environmental
justice contacts. Contact information is posted on the EJ website. This is an area
of practice where institutional knowledge is especially important, and these people
are an invaluable resource
• Decisions where environmental justice issues may be raised often are made through
federally delegated, authorized, or approved environmental programs In this
context, EPA oversight personnel can play a valuable role simply by sharing
information with their state, local or tribal colleagues, and suggesting ways in
which environmental justice concerns can be addressed. Another possible tool in
this context is the use of alternative dispute resolution (ADR), whether informal or
formaL State and local environmental agencies that receive EPA financial
assistance also have obligations under Title VI of the Civil Rights Act of 1964
The Office of Civil Rights is responsible for enforcement of these obligations — see
Section 7, below (“What is EPA’s authority to address environmental justice in the
actions of state and local environmental agencies that receive financial assistance
from EPA?”)
• At the outset, the personnel involved in a particular decision should develop and
record a strategy for analyzing and addressing environmental justice, incorporating
this strategy into the timeframes, decision points, and scope of discretionary legal
authority relevant to that decision. This is important to make the analysis an
effective component of the decision, tailored to staff time, finding, and legal
constraints. It is also crucial to ensure that external communications on how
5
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environmental justice is being considered will be accurate and will foster
appropriate expectations.
• To be of most value, the analysis should start as soon as possible in the
decisionmaking process. This allows the demographic and impact evaluations to
be developed through an iterative process that makes the best use of available
resources, including the information developed as part of the environmental
decisionmaking process (i.e., a screening-level analysis followed by more detailed
analyses as appropriate). This also opens up the greatest range of mitigation
options (especially regarding public participation, which is generally more
meaningful the sooner it is initiated in a decision process)
6 Bow should the environmental justice analysis be reflected in the administrative
record?
The policy goal is to integrate environmental justice as a factor in EPA’s decision, so that
the final action as a whole is consistent with environmental justice principles. The
environmental justice analysis should be viewed primarily as a vehicle for making sure that
this is the case. Preferably, it will be documented in a written environmental analysis, and
summarized in a memo.
The Environmental Appeals Board has had occasion to consider permit appeals that raise
environmental justice claims, and in such cases has referred to environmental justice
analyses conducted as part of the permitting process and included in the record. See, e.g,
Chemical Waste Management of Indiana, RCRA Appeal Nos. 95-2 & 95-3, 6 E A D 66
(June 29, 1995)
7. What is EPA’s authority to address environmental justice in the actions of state and
local environmental agencies that receive financial assistance from EPA?
Title VI of the Civil Rights Act of 1964, Section 601, prohibits recipients of federal
funding from intentional discrimination based on race, color, or national origin in any of
their programs or activities Section 602 of Title VI empowers federal agencies to
promulgate regulations that effectuate the statute. EPA’s regulations, at 40 C F R. Part 7,
incorporate the prohibition on intentional discrimination EPA’s regulations, like those of
other federal agencies, also prohibit discriminatory effects (a/Ida disparate impacts) based
on race, color, or national origin.
a Administrative complaints. Title VI administrative complaints provide a distinct
legal context for citizens to allege discrimination based on race, color, or national
origin by recipients of EPA assistance. 40 C F.R 7 120 Since the early 1990’s,
these complaints have been used to raise claims regarding environmental justice.
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b Guidance. The Office of Civil Rights has proposed draft revised guidance on
investigating Title VI administrative complaints challenging permits (Investigation
Guidance), together with draft guidance for recipients of federal assistance who
administer environmental permitting programs (Recipient Guidance). 65 g
39650 (June 27, 2000). The Recipient Guidance is voluntary in nature and offers
suggestions to recipients of EPA assistance about possible approaches to address
potential Title VI issues before complaints arise The Recipient Guidance provides
information and flexible tools that may help recipients achieve compliance with
Title VI.. This guidance could be a valuable starting-point for discussions with
states in order to address environmental justice concerns that do not occur in the
context of an administrative complaint EPA currently intends to finalize the
Recipient Guidance in Spring 2002
c Distinction from environmental justice analysis in EPA actions. Title VI is
recognized as an important legal avenue to seek environmental justice in certain
cases. However, it is distinct from federal environmental justice actions conducted
under E 0 12, 898 in some important respects
1. Title VI does not apply to assessment of environmental justice in
EPA actions;
2 Title VI prohibits recipients of federal financial assistance (e.g.,
states, universities, local governments) from discriminating on the
basis of race, color, or national origin in their programs or
activities It does no! address issues based on income or class
3. The investigation under Title VI focuses on discriminatory or
disparate effects, rather than disproportionately high and adverse
impacts While functionally similar in some ways, the analyses are
distinct
4. EPA’s Office of Civil Rights is responsible for the Agency’s
administration of Title VI, including complaint investigation and
compliance reviews Title VI claims should be immediately
forwarded to OCR, to ensure that they are properly processed
However, by effectively addressing environmental justice issues
before a Title VI complaint is filed, EPA and local government can
reduce the likelihood that such a complaint will ever be filed
7
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4
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IMPOF TANT NOT S
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Topic 4
Development and Management of Administrative
Records for Rules, Informal Adjudications, and
Non-Binding Guidance
•Speaker Biographies - Marilyn Kuray, Mark Stein and
Carrie Wehling
•Development and Management of Administrative Records
•Hypothetical: “The strange case of the State of Laredo,
or, everything you always wanted to know about
administrative records* (*but were afraid to ask)”
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TOPIC 4 BIOGRAPHIES
MARILYN KURAY
Marilyn Kuray is an attorney with the Office Of General Counsel, cross-
cutting Issues Law Office. Marilyn provides legal counsel on various cross-
cutting issues, including the Regulatory Flexibility Act, the Federal Advisory
Committee Act, the Unfunded Mandates Reform Act, the Federalism
Executive Order, and EPA’S compliance with the National Environmental
Policy Act.
Prior to joining EPA In November of 2000, Marilyn was in private
practice where she worked on environmental and criminal defense issues.
Marilyn received her J.D. from the George Washington University National
Law Center. She has a B.A. from the University of Delaware, and an M.Ed.
in Special Education from the University Of San Diego.
MARK A. STEIN
Mark A. Stein serves as a Senior Assistant Regional Counsel with U.S.
EPA Region I, Office of Regional counsel. He is the lead Region I attorney
for counseling matters under the Safe Drinking Water Act, the National
Environmental Policy Act, the Marine Protection, Research and Sanctuaries
Act and certain programs under the Clean Water Act. He joined EPA in
1986 and since that time has worked on numerous matters, including
major enforcement and defensive litigation in the federal courts under a
variety Of statutes. Prior to joining EPA, Mr. Stein worked for two years
with the Boston law firm Of Crloate, Hell & Stewart, focusing on land use
planning law and litigation. He graduated from Yale College in 1980 and
Harvard Law School in 1984.
CARRIE WEHLING
Carrie Wehling holds an earth science degree from Stanford
University and a law degree from Harvard University. She joined the U.S.
EPA in 1985, working in the Office Of General Counsel as a staff attorney on
a variety of issues under RCRA, EPCRA, Superfund, and the CWA. In 1993,
Carrie spent a year working for the Administrator on hazardous waste
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issues and for the Office of Solid Waste on international waste transport
issues, and then returned to the Office of General Counsel as Assistant
General Counsel in the Water Law Office. In 1997, Carrie returned from
maternity leave as a staff attorney in the Water Law Office working on a
part-time basis, primarily on Safe Drinking Water Act issues.
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Development and Management of Administrative Records
Hyp9thetical:
“The strange case of the State of Lar edo, or,
everything you always wanted to know about administrative records*
(* but were afraid to ask)”
Since 1985, a large State, let’s just call it the State of Laredo, has repeatedly applied to
Region 12 for approval to administer the Clean Water Act NPDES permit program The
Region’s Water Division has more or less continuously kept a docket for most of that time,
adding all documents received by.the Division that relate to the State’s application(s) In
November 199 , EPA proposed to approve the State’s most recent submission, and it looks like
t •s one will go through. The comment period closed in January, 1999. Some of EPA’s major
issues have included the adequacy of the State’s enforcement program, and the State’s enactment
of laws (for example, a “takings” law) that may interfere with its ability to run the program The
Region’s ORC, Water Division, and Enforcement Division, as well as OGC, OW, and OECA,
have all been involved in evaluating information and writing responses to comments To help
EPA respond to comments, the State has also sent data and information to various Regional staff
members At last, an approval notice is on the verge of being signed Litigation is a virtual
certainty.
Which of the following should be part of the record?
Pre-proposal materials
I EPA’s 1991 letter to the State finding the State’s previous submission inadequate and
detailing the actions the State needs to take to cure the defects
2 EPA’s 1994 letter to the State saying EPA believes that recently enacted State legislation
has cured the defect in the State’s takings law
3 April 1998 comments by environmental group arguing that the State’s enforcement
program is inadequate c
4 August 1998 letter from Office of Water to Region 6 transmitting HQ comments on the
draft Federal Register notice
5 Court cases relating to approval of state NPDES programs
6 Guidance documents on program approvals from HQ
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c
7 Data which the program reviewed in connection with the proposed action but ultimately
did not rely on in making the approval decision
data from Region 12’s contractor containing a detailed review of each of the permits
by the tate of I aredo dun g the pqst 10 ye .rs
I i ( (3 Qj ) - y-- T Q& i 5
Draft (stamped, “do not cite or quote”) State of Laredo AG opinion on an issue related to
the approval
C m 5 - 7 L _
December, 1998 letter from Office of Water to Region\transmitting congressional
‘ correspondence on the proposed program approval
11 December, 1998 comments from the U S Department of Transportation criticizing the
efficiency of the State environmental agency and predicting that there will be problems
with permit issuance if the State’s program is approved
ES 12 December, 1998 comments from an industry group attaching voluminous background data
13 December, 1998 comments from an industry group attaching documents of FOLA’ d
material from the Region that are of dubious relevance to the approval
14 December, 1998 comments from another Region concerning a related program approval
and the need for consistency
15 December, 1998 comments from an ORC attorney, not working on this matter, on behalf
of herself as a citizen of the State of Laredo
16 April, 1999 comments from an environmental group enclosing new data on enforcement
staffing
Supporting materials for final decision
17 Staff memoranda laying out options for responding to comments
18 Information collected by the Region’s Enforcement Division and used to respond to
comments, but not included in the Water Division’s docket for the proposal
19 Information regarding enforcement staffing marked “confidential,” sent by the State to
I
2
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EPA staff and used by EPA staff in responding to comments
20. April, 1999 briefing document from meeting between the Administrator and Laredo’s
Governor relating to the approval, meeting was principals only, the RA for the Region did
not attend
21. Staff in the Water Division included reference to several technical journals in the approval
notice, but did not include them in the docket.
22 Comments submitted by the Laredo Business Council and two individuals referenced
several technical journals but did not attach them EPA did not consider the journals
23 In support of the final decision, the agency decisionmakers relied on modeling data
developed and submitted by a private party. The submitter requested that the model (not
the data) be classified as CBI.
Epilogue
After the approval document was signed and published in the Federal Register in January
2000, EPA is sued by a variety of groups and individuals Shortly after publication, a new
Regional Administrator is appointed and is concerned about the approval She announces that she
is suspending the approval pending further review and issues a Federal Register notice delaying
the effective date of the approval for one year EPA is sued over the delay of effective date
Water Division staff ask several well-respected independent organizations to review several key
technical questions and provide independent reports In July, 2000 the RA reopens public
comment on whether the program should be approved The comment period closes October 31,
2000 After receiving their reports, which generally support the original decision, on October 31,
2000, the RA announces in a short press release that she is satisfied with the original decision
The approval goes into effect. EPA is sued over the new announcement The Court in which
these cases are filed consolidates all of them into one case
Which of the materials generated after January 2000 are part of the record for this
consolidated case?
1 The press release from the RA announcing that she intends to suspend the approval
2 The voluminous comments from irate members of the public concerning the suspension of the
approval, received during the spring and summer of 2000
3 The independent reports submitted to EPA during the summer of 2000
4 The July 2002 notice reopening public comment on the approval
3
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5 The comments on the July, 2000 notice reopening public comment on the approval that were
received before October 31
6. The comments on the July, 2000 notice reopening public comment on the approval that were
received on or after October 31, but postmarked on or before October 31.
7. The internal papers providing technical information and recommendations to the new RA on
the original approval and the independent reports.
8. The October 31, 2000 press release
9 A December, 2000 letter from the Water Division explaining that the press release had no
impact on the July, 2000 proposal and that EPA would consider comments on that proposal and
the recommendations in the independent reports as part of its periodic review of the approved
program
4
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EPA practices in compiling administrative records
Briefing for OGC Front Office
May 2006
Background on Administrative Records
1. The Administrative Procedure Act (APA) provides that judicial review of agency
decisions is based on “the whole record” — 5 U.S.C. 706.
2. This means the “full administrative record that was before the [ decision maker] at the
time he made his decision.” Citizens to Preserve Overton Park v. Volpe , 401 U.S. 402 (1971).
After-the-fact explanations of administrative decisions, through affidavit or otherwise
(sometimes referred to as “post-hoc rationalization”), are inadequate for judicial review. Id. See
also Camp v. Pitts, 411 U.S. 138, 142 (1973) (“focal point for judicial review should be the
administrative record already in existence, not some new record made initially in the reviewing
court”). At the same time, judicial inquiry into the deliberative process of decision makers is not
permitted. Citizens to Preserve Overton Park , 401 U.S. 402 (1971).
How EPA compiles Administrative Records for Judicial Review
1. The administrative record includes the documents upon which an Agency decision is
based. This will include the documents or materials that the decision maker relied on either
directly or indirectly in making the decision at issue but exclude deliberative documents. The
record includes factual documents that Agency personnel relied on as part of the decision-
making process even if the ultimate decision maker did not specifically consider the document.
For example, if a staff person reviews data and develops a summary of the data as part of the
decision-making process, then the summary and data should be in the record.
2. If there are public comments or consultations required as part of the decision-making
process, then the record includes all of those comments and consultations, regardless of whether
they support the ultimate decision.
3. Deliberative documents. EPA’s position is that the administrative record generally
does not include internal deliberative documents or attorney-client communications. This is
because judicial inquiry into the deliberative process of decision makers is not permitted.
Citizens to Preserve Overton Park , 401 U.S. 402 (1971). Because the actual subjective
motivation of Agency decision makers is immaterial as a matter of law under Overton Park ,
documentation of the deliberations is also unnecessary. In Re: Subpoena Duces Tecum ,
156 F.3d 1279-80 (D.C. Cir. 1998); San Luis Obispo Mothers for Peace v. NRC , 751 F.2d 1287,
1324-26 (D.C. Cir. 1984)(noting weight of precedent and policy favoring exclusion of
deliberative documents). See also Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Insurance
Co., 463 U.S. 29, 50 (1983) (agency action must be upheld, if at all, on the basis articulated by
the agency itself); Ad Hoc Metals Coalition v. Whitman , 227 F. Supp. 2d 134, 142 - 143 (D.D.C.
2002) (judicial review of agency action should be based on an agency’s stated justification, not
the predecisional process that led up to the final, articulated decision) (citations omitted); Ohio
Valley Environmental Coalition v. Whitman , 2003 U.S. Dist. LEXIS 148, [ *22] - [ *23]
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(S.D.W.Va., Jan. 6, 2003), 33 ELR 20156; “Blackletter Statement of Federal Administrative
Law” in the ABA Administrative Law Review. Examples of documents that would generally be
excluded from the record under this principle would be briefing papers, draft decision
documents, and internal EPA memos stating opinions or recommendations concerning a pending
agency decision, see g., Chemical Weapons Working Group v. U.S. EPA , 185 F.R.D. I (D.D.C.
1999), whether or not these materials have otherwise been made public. EPA’s position
concerning exclusion of deliberative materials is codified, for Superfund response action
purposes, in the National Contingency Plan (“NCP”). 40 CFR Part 300, Subpart I
4. Exceptions. There may be some cases where we do place otherwise-deliberative
documents in the record; for example, where the document contains factual information or
records policy decisions found nowhere else in the record or where the document, while labeled
draft, was not superseded by a final document and was part of the Agency’s consideration (this
often happens with voluminous technical documents). In this case, the documents should be
included in the record, perhaps with a cover note that explains why the document is material.
Alternatively, and the preferred course of action, would be to create a record document
containing the necessary information.
In addition, there are also limited grounds for supplementation of the administrative
record (e.g. bad faith).
5. DOJ’s position. The Department of Justice’s position on inclusion of deliberative
documents is unclear. While DOJ has generally defended our administrative records, they have
also apparently defended other agencies’ practices. In addition, in 1999, DOJ circulated an
unsigned “internal” guidance document stating that all materials relating to a final decision,
regardless of the materials’ deliberative status, should be included in the administrative record.
Privileged materials would not be provided to the court or the parties but would be redacted and
listed on a privilege index. However, in a later (2003) brief filed defending exclusion of 0MB
documents from an EPA record, DOJ stated that courts have “overwhelmingly recognized” that
deliberative documents are not part of the record for judicial review. Waterkeeper Alliance, Inc .
v. U.S. EPA (2 Cir. No. 03-4470 and consolidated cases) (Opposition to Motion to Clarify
Administrative Record).
6. Reasons for EPA’s position. EPA has vigorously defended this position for a
number of reasons. First, including deliberative materials position is highly impractical (e.g., all
comments from all reviewers on each draft of a decision document would be included). Second,
inclusion of deliberative materials results in all kinds of immaterial and potentially confusing
documents (such as staff comments that were ultimately rejected) being included in the Agency
record. Third, inclusion of deliberative materials may chill internal discussion of important legal
and policy matters, thereby reducing the quality of decision-making. For the same reasons, we
have not followed DOJ’s apparent “compromise” of including these documents in a “privileged”
section of the record. In addition, adding a “privileged” section to the record index invites
litigants to seek disclosure of the documents.
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OGC National Counseling Attorneys’ Conference
Topic 4: Development and Manaaement of Administrative Records
Presented by: Carrie Wehiirig
OGC-Water
(202)564-5492
Marilyn Kuray
OGC-CCILO
(202)564-3449
Mark Stein
ORC-Region I
(617)918-1077
Presented on: April 24, 2002
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I. General Administrative Law on Records
A. Why are administrative records important?
1. The Administrative Procedure Act (APA) provides thatjudicial review of
agency decisions is based on “the whole record” -5 U.S.C. 706.
2. This means the “full administrative record that was before the
[ decisionmaker] at the time he made his decision.” Citizens to Preserve
Overton Park v. VoIce , 401 U.S. 402 (1971). After-the-fact explanations
of administrative decisions, through affidavit or otherwise (sometimes
referred to as “post-hoc rationalization”), are inadequate for judicial
review. i . also CamD v. Pills , 411 U.S. 138, 142 (1973)(”focal point
for judicial reviewshould be the administrative record already in
existence, not some new record made initially in the reviewing court”).
Thus, you will generally not be allowed to compile either the factual or
legal “record” during litigation. Nor will adversaries in litigation generally
be permitted to supplement the record for review by entering non-record
materials into evidence or compelling discovery. You should also note
that while some courts will on occasion allow strictly legal arguments to
be raised for the first time in litigation, you won’t want to rely on that.
3. The record is where courts will look to determine whether the agency
action was consistent with the basic standards set under APA Section
706. Under that section, courts must set aside agency action which is,
among other things, “arbitrary, capricious, [ or] an abuse of discretion”, “in
excess of statutory... authority”, or “without observance of procedure
required by law ’. Thus, all of the justifications for agency action—
statutory basis, reasonableness, procedural correctness—must be in the
agency record for the decision.
4. In addition, under Chevron principles, courts are more likely to defer to
agency interpretations where the agency has clearly stated its
interpretation and its underlying reasoning.
5. To the extent that there is a question about whether record review is
applicable to an agency action, you will generally argue for it because it
avoids resource-intensive discovery and trial proceedings.
6. While administrative records are a critical part of litigation, they also
serve other useful purposes, including providing a vehicle for public
access to, and comment on, the basis for a proposed agency action. As a
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result, for some agency actions, such as rulemakings, state program
approvals, and Superfund response actions, EPA must generally compile
and make available administrative records long before litigation over a
final decilion.
B. Why should counseling attorneys in particular care about compiling the
record?
1. It’s critical for your legal defense of an agency decision in most cases
and is oft n required as part of public participation in Agency
decisionmaking. See section l.A.
2. No one else cares abdüt or understands records. Program offices
often see record compilatiop as busywork, especially because they almost
never need to use it. Also, program staff often do not know which
documents can and should be included.
3. You can’t escape from it. All defensive cases are handled by
counseling attorneys in OGCIORC so the record is ultimately your
responsibility even if you had no involvement in the action challenged.
C. What is the “administrative record”?
1. a set of documents that is the basis of an administrative decision—this
could include underlying data, guidances, reports, FR notices, public
comments or other correspondence, response to comment documents,
and the final agency decision document. Under Overton Park , the
purpose of the record is to document that the Agency considered the
relevant regulatory and statutory factors in reaching the decision in
question and made no clear error in judgment. Overton Park at 416. As a
result, you should include in the record any document generated prior to
the decision in question that shows how the Agency considered the
relevant factors and any required public comments, and the rationale for
the selected decision.
2. every decision has a “record”; however, not all administrative
decisions have records that are assembled formally or prior to litigation.
D. What materials belong in the administrative record?
1. The administrative record must include all documents upon which an
Agency decision is based. This will generally include the documents or
materials that the decisionmaker relied on either directly or indirectly in
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making the decision at issue. If there are public comment or
consultations required as part of the decisionmaking process, then the
recàrd includes’ all bf those comments and consultations, regardless of
whether they support the ultimate decision. Also, the record includes
factual documents that Agency personnel relied on as part of the
decisionmaking process even if the ultimate decisionmaker did not
specifically consider the document. For example, if a staff person reviews
data and develops a summary of the data as part of the decisionmaking
process, then the summary and data should be in the record.
2. Materials that should be included in the record include relevant
technical documents, data files, graphs, charts, guidance, manuals, and
directives, inälüding information stored in electronic form or on microfilm
or microfithe. It does not generally include personal notes of individuals
taken at a meeting unless those notes contain information relevant to the
Agency decision that are not contained elsewhere in the record. You
should generally have your program clients write memos to officially
record important meeting information rather than relying on notes.
3. In addition to the record supporting the Agency decision, don’t forget
that the record also includes supporting material for Agency statements in
the administrative “boilerplate” section of the action, where applicable.
This would include such things as any Economic Analysis prepared
pursuant to Executive Order 12866, initial and final regulatory flexibility
analyses prepared under the Regulatory Flexibility Act or documentation
upon which EPA based a finding bf no significant economic impact on a
substantial number of small entities, and documentation of any
consultations or analyses under UMRA, the Federalism Executive Order
(1 31 32), and the Tribal Consultation Executive Order (13175).
E. Do internal, pre-decisional or other privileged materials belong in the
record?
1. EPA’s position is that the administrative record generally does not
include internal deliberative documents or attorney-client
communications. This is because judicial inquiry into the deliberative
process of decisionmakers is not allowed. Citizens to Preserve Overton
Park , 401 U.S. 402 (1971). In other words, the actual subjective
motivation of Agency decisionmakers is immaterial as a matter of law
under Overton Park , so documentation of the deliberations is also
immaterial. See . .g. In Re: Subpoena Duces Tecum,156 F.3d 1279-80
(D.C. Cir. 1998); San Luis ObisDo Mothers for Peace v. NRC , 751 F.2d
1287, 1324-26 (D.C. Cir. I 984)(noting weight of precedent and policy
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favoring exclusion of deliberative documents). Examples of documents
that would generally be excluded from the record under this principle
would be briefing papers, draft decision documents, and internal EPA
memos stating opinions or recommendations concerning a pending
agency decision, see Chemical WeaDons Working Group v. U.S.
EPA , 185 F.R.D. I (D.D.C. 1999), whether or not these materials have
otherwise been made public.
2. However, you should note that there may be some cases where you
will want to place the otherwise-privileged document in the, record; for
example, where the document contains factual information or records
policy decisions found nowhere else in the record or where the document,
while labeled draft, was notsuperceded by a final document and was part
of the Agency’s consideration (often happens with voluminous technical
documents). In this case, the documents should be included in the record;
you may want to attach a cover note that explains why the document is
material.
3. The Department of Justice appears to take a different position with
respect to privileged documents. An unsigned 1999 DOJ guidance
document takes the position that all relevant materials, regardless of the
materials’ privilege status, should be included in the administrative
record. Under DOJ’s guidance, privileged materials would not be
provided to the court or the parties but would be redacted and listed on a
privilege index.
4. While there is case law that supports both points of view, EPA has
S vigorously defended its position and continues to adhere to this in
compiling administrative records, both because the 1999 DOJ position is
highly impractical (e.g. all comments from all reviewers on each draft of a
decision document would need to be listed) and because it results in all
kinds of immaterial and potentially confusing documents (such as staff
comments that were ultimately rejected) being labeled as the Agency
record. EPA’s position is also codified, for Superfund response action
purposes, in the NCP. 40 CFR 300, Subpart I.
F. Should Confidential Business Information (CBI) be included in the record?
1. the administrative record does include CBI if that was the basis for a
decision. Generally, however, although CBI materials are listed in the
index to the record, the documents are either redacted or placed in a
secured (not publicly accessible) portion of the record. The best
approach is to include as much of the CBI materials in the publicly
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accessible portion of the record as possible through redaction or some
other technique that shields the confidential information. This approach
protects the CBI information while making the general information
available to the public.
2. CBI status is governed at EPA by the “Confidentiality of Business
Information” regulations found at 40 CFR part 2, subpart B.
C. Should communications from States or other federal agencies be included
in the record?
Yes, the record also generally includes written communications from
states, other federal agencies, and Congress. However, policy/political
level discussions or deliberative documents shared between EPA and
other federal agencies may be treated as internal deliberative
discussions.
H. Is the record the same thing as the “docket”’?
1. The docket is a collection of documents that is made available for
public viewing. (Note that for Superfund response actions, this is known
as the “administrative record file”, as opposed to the “administrative
record”, which are two different compilations.) Unless the contents of the
docket are mandèted by statute or regulation, the docket may omit
materials that are included in the administrative record, such as CBI or
references cited in background documents, and may also include other
materials that are not part ? the record, such as comments received on a
proposal that were received too late to be considered.
2. However, you should try to assure that the docket tracks the record as
closely as possible to avoid confusion and unnecessary litigation over
what is in the record. You should check the docket before proposal, after
the comment period and before final action. Some pointers for reviewing
the docket:
* Make sure nothing is in the docket that shouldn’t be there, such
as deliberative and draft materials. Check for materials that may
not be intended as public comments (for example, comments from
other EPA offices).
* Make sure all supporting materials are included.
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* Prevent confusion about what’s in the record by including
language in proposed actions to address issues such as late
comments, consideration of “early comments”, and description of
the docket.
* Create necessary record documents, such as meeting
summaries, as you proceed with the action.
3. Many agency actions that can be challenged have no format docket
because the action was not subject to any formal request for public
comment. In this case, the collection of documents available to the public
may simply be someone’s file, available upon request or there may be no
docket of any kind. Regardless of whether there is a docket, however,
there is an administrative record, which is simply the documentation of the
decision whether or not that decision was subject to prior public review.
4. Some statutes and regulations specify what materials must be
included in the record and/or the docket. These include CAA 307(d),
TSCA Section 19, and the Superfund NCP. Executive Order 12866 also
has certain docket requirements pertaining to 0MB review of EPA
rulemakings. Those provisions control over general administrative law
principles.
I. When is record review not available?
1. Record review is generally to the benefit of you and the Agency.
However, it is sometimes not available. Such cases may include where
the Agency action in question is not a final decision (e.g. informal
interpretative guidance from the program office) or where the litigation
concerns a failure of the Agency to make a decision and EPA does not
have documents that show the rationale for such inaction (e.g. a suit to
enforce a statutory deadline for Agency action on a rule, a suit against
EPA for failure to initiate enforcement or State program withdrawal, or a
suit alleging “unreasonable delay of Agency action). Friends of
the Clearwater v. Dombeck , 222 F.3d 552, 560 (gth Cir. 2000)(suit to
compel agency action not limited to the record because there is no final
agency action). j American Canoe Ass’n v. EPA , C.A. No. 98-979-A
(E.D. Va. Apr. 29, 1999) (limiting judicial review to the record to determine
whether EPA complied with mandatory duty concerning TMDLs).
2. In addition, you may have to generate the record for the phase of
litigation concerning the remedy in a citizen suit (such as a schedule for
agency action) after the court has found that the agency has failed to
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comply with a mandatory. In those cases, you may need to draft an
affidavit providing an Agency explanation for the Court and be prepared
for discovery and depositions.
3. There are also cases where a reviewing Court will not limit itself solely
to the record as compiled by the Agency. These can be thought of as
exceptions to the basic rule of limiting judicial review of an administrative
decision to the administrative record. Town of Norfolk v. United
States Army Corns of Engineers , 968 F.2d 1438, 1458-59 (1 Cir. 1992);
Valley Citizens for a Safe Environment v. Aldridge , 886 F.2d 458, 460 (1
Cir. 1989); Friends of the Earth v. Hintz , 800 F.2d 822, 828 ( 9 th Cir. 1986).
The court has substantial discretion in deciding whether supplementation
of the record is warranted in a particular case, Valley Citizens , 886 F.2d
at 460-61; Town of Norfolk v. U.S. EPA , 761 F.Supp. 867, 875 (D. Mass.
1991), although courts generally require “a strong showing of bad faith or
improper behavior before ordering the supplementation of the
administrative record.” Town of Norfolk v. U.S. Army Corns of Engineers ,
968 F.2d at 1458-59. Reasons that supplementation of the record might
be allowed include the following: a) to “illuminéte reasons obscured by
implicit in the adrninistrativerecord,” Clifford v. Peña , 77 F.3d 1414, 1418
(D.C. Cir. 1996); b) if necessary to explain the agency’s decision where
lack of clarity “frustrates” judicial review, Friends of the Earth , 800 F.2d at
829; C) to assist the court in understanding highly technical or scientific
matters in the record, Valley Citizens , 886 F.2d at 460; Town of Norfolk ,
761 F.Supp. at 875; d) to determine whether the agency actually knew
about some important issue but ignored it and failed to identify it to the
public, or whether the agency relied on some important information that
was kept secret and was not identified in the record, Valley Citizens , 886
F.2d at 460; Town of Norfolk , 761 at 874-75.
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Responding to Comments/Record Support: Some basic Q’s and A’s.
QI. Who is responsible for responding fo comments?
Al. The program office responsible for the Agency action generat ñg the
comments should prepare the response to comment document. However,
counsel must review the document to make èure that all comments are
responded to and that the responses are adequate and consistent with the final
agency action. As a practical matter, you may, as a result, be involved in
drafting a significant part of the document.
Q2. Do responses to comments have tobe in a particular document?
A2. No. The response to comments can be in the final decision document’(e.g.
a Federal Register preamble) orin a separate document or both.
Q3. Do we have to respond to every comment?
A3. Yes, you should respond to every comment. Some regulations and statutes
specify that only “significant” comments need to have responses, but because 1)
ignificance is in the eye of the beholder, 2) it isn’t worth spending a lot of time
figuring out whether a comment is “significant” or not, and 3) “insignificant” or
irrelevant pomments should, by definition, be easy to respond to, it’s best just to
respond to them all. To the extent that a comment is outside the scope of the
proceeding (for example, it comments on another unrelated matter), it is a
sufficient response to explain that it is outside the scope of the proceeding.
Q4. Do we have to respond to each comment separately?
A4. No. Comments can certainly be grouped together, and a single response
cover many comments. However, while comments can be grouped for response,
they should be quoted verbatim , otherwise subtleties can be lost. For example,
the comment “this facility should not be permitted because the air in this
community is already bad” and the comment “this facility should not be permitted
because the air in this poor, predominantly-Hispanic neighborhood is already
bad” can be grouped for a single response, but you will want to make sure that
the environmental justice angle in the second comment is also addressed. This
angle might have been missed if the comments were summarized instead of
quoted verbatim .
05. How do I determine whether a response is adequate?
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A5. The response should address all aspects of the comment or comments,
explaining whether the Agency agrees or disagrees and and what action
the Agency intends to take, if any (e.g. modify the proposed action), to address
the comment. A response should not just state “the agency disagrees with this
comment”; the response should always explain why the Agency disagrees.
Without an explanation, the response does not give the basis for the Agency
action and why the action is reasonable (as opposed to arbitrary and
capricious). Ultimately, a federal court will be the judge of the adequacy of
responses, so you should think about whether a federal judge would find the
response in question sufficient.
Q6. Who has to sign the response to comment document?
A6. The response to comment document does not have to be signed by anyone.
It should be reviewed and approved by counsel prior to signature on the final
decision document that is supported by the response to comment document.
Q7. When does the response to comment document need to be completed?
A7. It must be completed prior to signature by the Agency decisionmaker on the
final decision document (permit, ROD, etc.) You should make sure that the
decisionmaker withholds signature until you (or someone else in OGCIORC)
have reviewed and approved the response to comment document.
Q8. How much of the raw data generated for the final decision have to be
included in the record?
A8. The conservative legal advice would be that the raw data is part of the
record and should all be included. However, a summary of the raw data may be
sufficient, particularly if no one requests to see the raw data during any public
comment period. However, if anyone requests to see raw data during a public
comment period, or if any of the raw data is particularly pertinent to the deciêion
or highly controversial, then you should include it.
Q9. What should we do with comments that come in after the close ofthe
comment period?
A9. You do not have to consider comments that are received after the close of
the comment period. Typically, such comments are placed in the docket or
record with a special notation that they were late. However, we can consider
late comments at our option and as long as the comments are not so late as to
make it impossible to give consideration to them, it is generally a good idea to
consider late comments with the other comments or at least make sure that the
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comments do not raise a significant new concern. After all, part of the point of
public comment periods is to get information that confirms whether the Agency is
doing the right thing and if a comment, late or otherwise, demonstrates that the
Agency action in question is inadvisable, then the Agency decisionmakers
should be advised of that concern.
Q10. When must we reopen the comment period?
AlO. The Agency’s final decision must be a logical outgrowth” from the
proposed action. Fertilizer Inst . v. EPA , 935 F.2d 1303, 1311 (D.C. Cir. 1991).
This means that any changes made to the action must be based on what EPA
proposed to do and the public comments on that proposal. Changes cannot be
based solely on public comment or on EPA information that was not discussed in
the proposal or available in the docket or record. As a result, if the Agency
selects an option for the final decision that was not discussed or implied in the
proposal, whether or not based on public comment, then EPA should reopen the
comment period for consideration of that option. Similarly, if EPA’s final decision
may be based on critical information the Agency generated or received after
proposal, this information should be made available for review in a reopened
public comment period. For rulemakings, this is most often accomplished with a
notice of data availability or a supplemental proposal.
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Ill. Logistics of Assembling the Record
A. General
1. One of first activities in most defensive litigation and other cases
involving administrative records (e.g. superfund enforcement cases).
2. Process varies with the type of defensive case:
a. challenges to formal HQ decisions
(e.g. rulemakings, CWA 404(c) permit “veto” decisions)
b. challenges to formal Regional decIsions
(e.g. permit issuances/denials, state program approvals, TMDLs,
Superfund enforcement cases)
c. schedule suits
d. other types of challenges
(e.g. suits challenging guidance documents/letters/memos, suits
seeking preenforcement review, suits challenging EPA failure to
enforce)
B. Challenges to formal HQ decisions
1. Location of record: HQ. Where there is a formal public docket for the
decision, that usually is the same as the administrative record.
2. Assembler: program, docket personnel. You should ask the program
or document personnel for a draft of the docket index prior to signature on
the final decision document so that you can make sure that key
documents have been completed and placed in the record and that no
privileged or other extraneous documents have been placed in the record.
3. When: during the decisionmaking process and completed prior to
signature on the final decision.
4. OGC role:
a. provide counsel to program office
* advice on what documents belong in the record and which
ones don’t
* reminders to assemble the necessary documentation of
oral communications and factual findings
* advice on timing of assembly—documents must be
reviewed by OGC and put in docket by date of
signature , not publication
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b. review record during development-key times:
* workgroup closure on proposal
* Post-proposal comments, data gathering
* workgroup closure for final
c. key items to look for on review
* missing documents
* data developed after proposal but not publicly noticed
* documents that do not belong in the record esp. internal
comments/memos, drafts
* a completed response to comment document that you
have reviewed and approved
5. Certification of record for litigation:
a. cover page, plus docket index for proposal, final and any
intervening FR notices
b. signed by relevant HQ manager, generally office director or
above
C. Challenges to formal Regional decisions
1. Location of record: Region
2. Assembler: Should be the regional program office or docket
personnel, but may be you
3. When: During the decisionmaking process, completed upon date
decision is final
4. OGC/ORC role:
a. assemble (if necessary)
b. review (as for formal HQ decisions)
5. Certification for litigation:
a. cover page, plus list of record documents
b. signed by relevant Regional manager
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D. Schedule suits
1. Generally, no record
2. Basis of agency failure to act and/or proposed agency schedule for
action will usually have to be explained in affidavits of relevant HQ or
regional managers.
E. Other challenges
1. Location of record: probably none
Where challenges involve agency decisions, even preliminary or
informal ones, there should be a record of some sort; it just may
not be assembled in any one place.
2. Assembler: you, with aid of program personnel
When: after litigation filed
4. OGCIORC role: assembler of record
5. Certification: as described above for formal HQ or Regional decisions,
as appropriate
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5
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flWllPOL TAff T h 1OT1 S
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Topic 5
Information Exchange (Electronic and
Otherwise) in the National Law Office
•Speaker Biographies - Craig Annear and Nancy Marvel
‘Top Ten List of Tools that Effectively Promote Good
Communication, Efficient Collaboration, and Legal
Consistency Among the ORCs and OGC
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TOPIC 5 BIOGRAPHIES
CRAIG ANNEAR
Craig An near is a Senior Counsel in the Office of General Counsel and
part Of the Cross-Cutting issues Law Office. He serves as OGC’s Regional
Counsel Liaison. Craig also provides legal support to the Agency’s
Standards Executive and counsel with respect to the Government’s use of
voluntary consensus standards in rulemaking and procurement;
coordinates OGC’S participation with the Department of Justice in amicus
cases when issues involve two or more media programs; provides general
legal assistance to the Office Of Research and Development; and assists the
Associate General Counsel in ensuring Agency review Of draft Executive
Orders and Presidential Memoranda.
Craig previously served as Associate General Counsel for the
Management and Administration Division; the Grants, Contracts, and
General Law Division; and the Inspector General Division. He earlier worked
as an Associate General Counsel at the Federal Emergency Management
Agency, the Senior Attorney for the Federal Disaster Assistance
Administration, HUD, and a staff attorney at the Federal Trade
Commission. Craig has a J.D. from the University Of Michigan and an A.B.
from Cornell University.
NANCY J. MARVEL
Nancy Marvel has been Regional Counsel Of Region 9 since 1987. AS
Regional Counsel, she manages a law office of 65 attorneys and provides
counsel to the senior managers of Region 9. From 1983 to 1987, she served
as Air Branch Chief in the same office, specializing in Clean Air Act matters.
Before coming to EPA, Nancy worked as Deputy City Attorney for the City
Of Santa Monica, California, and as a Trial Attorney in the (then) Land and
Natural Resources Division of the U.S. Department of Justice, where she
specialized in wetlands litigation, she also served as a judicial clerk in the
United States Court of Claims, focusing on Indian law, and was staff
attorney to a Department Of Health and Human Resources task force
investigating the Food and Drug Administration 1 s regulation of new drugs.
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Nancy received her law degree from Georgetown University Law
Center and her A. B. from Princeton University. She is a member of the
bar in California and the District Of Columbia. In 1997, she received the
Senior Executive Service Meritorious Executive Presidential Rank Award for
her achievements over the course of her EPA career.
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WARD ERTIF1CATE
In Appreciation for Your Efforts to Promote Good Will
and Levity During Holiday Periods Through Poetic
Renderings of the OGC Staff Meeting Notes
this
by
PRESENTED TO:.
Maria Diamond
24th day of April 2002
The Second National Counseling Attorneys Conference
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Areas of responsibiUty lists
Copies of OGC ethics advisories and
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WARD ERTIFIcATE
In Appreciation for Your Creativity, Persistence, and
Skill in Creating and Continuously Improving the OGC
Intranet Website
P ESFNTI D Tth
Mary Grady
this 24th day of April 2002
The Second National Counseling Attorneys Conference
by
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Number 6: RC-OGC MJonthlly
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Thanks to CCLLO’ 2 s Jim Nelson and
Patsy Curry
Is widely appreciated
Special Award...
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In Recognition of Your Persistence in Encouraging Staff
to Contribute to the OGC Monthly Reports and Your
Dedication to Communicating Legal News to the
Offices of Regional Counsel and OGC
P ES.ENTED TO
Susan Lepow
24th
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The Second National Counseling Attorneys Conference
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An increasingly comprehensi vie
corn pillatilon of OGC and ORG attorney
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Stylish format 1 easy to use andi
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CaD Miary Grady for assistance
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Steve Hess (FOLO)
Earl Salo (SWERLO)
Dave Gravaliliese (WLO)
Charles Openjhowski (SWERLO)
> Renee Sarajilan (Region 3)
Kathy Niam (SWERLO)
John Michaud (SWERLO)
Malcom Woolf (SWERLO)
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Running Monthly Practice
Area Conference Call
Voted the most effectilve and efficient
means of OGC ORC coflaborationj and
coope ratiion
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area ask around
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Information Law caIil Pat
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I PORThNT NO77 S
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Topic 6
Judicial Deference
‘Speaker Biography - Randy Hill
‘ Chevron : What’s the Deference?
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TOPIC 6 BIOGRAPHY
RANDOLPH HILL
Since January 1997, Randy Hill has been Assistant General Counsel in
the Water Law Office of the Office of General Counsel. He leads a team of
attorneys responsible for counseling and litigation arising under the Clean
Water Act and Safe Drinking Water Act. Prior to that, he spent nearly ten
years as a staff attorney in the same office. He has received EPA’S Gold
Medal for Exceptional Service twice, and EPA’S Silver Medal for Superior
Service once, as well as several Bronze Medals. He received the General
Counsel Award for Leadership Excellence in 2001.
Randy was a Visiting Professor of Law at Tulane University in 1995,
teaching courses on the Clean Water Act and intergovernmental disputes
over environmental protection. He teaches his clean water course each
summer at the Vermont Law School. He has also served the past 12 years
as adjunct Professor at the University of Maryland, University College,
where he teaches Business/Government Relations and Public Sector
Management. He was a finalist for the University’s Excellence in Teaching
Award in 1998. Randy obtained his J.D. and a Masters Of PLiblic Policy from
the University of California, Berkeley and was elected to the Order of the
Coif.
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CHEVRON : WHAT’S THE DEFERENCE?’
(Outline prepared by Barbara Pace and Randy Hill, March 2002)
Updated Primer on Chevron
A The Threshold Principle (or “ Chevron Step 0”):
o The Agency to whom the Court should defer must be “charged with
administering the statutory provision at issue” 463 U.S. at 842.
B The Two-Step Test
Step 1 . if the intent of Congress behind the relevant statutory provision is
clear, then the agency’s interpretation must follow that intent.
a The reviewing court first examines the plain language of the
statute to determine whether Congressional intent is clear.
b If analysis of the statutory language is unclear, the court
looks to the relevant legislative history.
— The application of Chevron to a “clear statute” may
be a somewhat academic exercise. As the Supreme
Court recently observed, in a case involving
interpretation of an EEOC regulation, that “ [ w]e
find the EEOC rule not only a reasonable one, but
the position we would adopt even if there were no
formal rule and we were interpreting the statute
from scratch. Because we so clearly agree with the
EEOC, there is no occasion to defer and no point in
asking what kind of deference, or how much.”
Edelman v. Lynchburg College , 122 S.Ct. 1145
(2002).
Step 2. If Congressional intent is unclear, the reviewing court must defer to
the interpretation of the administering agency, so long as that
interpretation is “reasonable in light of the goals and purposes of
the statute.”
‘I can’t take credit for this pun. William David Kissinger, Judicial Review of an
Agency’s Statutory Construction: Chemical Manufacturers Association v. Natural Resources
Defense Council. Inc.: What’s the Deference? , 13 Ec0L L.Q 643 (1986) (discussing early post-
Chevron decision of the Supreme Court arising under the CWA).
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CHEVRON WHAT’S THE DEFERENCE? Page 2
-- Chevron presumes that Congress has delegated the
authority to interpret statutes to the administering agency,
whose leaders are politically accountable to the electorate
through the President, rather than to unelected courts 467
U S. at 843-44, 865-66.
C. Problems Which Ajise at “Step 0”
1. Has Congress delegated the authority to the agency to interpret the statute?
If the answer is no, Chevron deference is not appropriate
o Adams Fruit Co . v. Barrett , 494 U S. 638 (1990) (agency
interpretation regarding the scope of private judicial
remedies available not entitled to deference, agency was not
given authority to regulate the scope of court jurisdiction in
this statute)
o Crandon v. United States , 494 U.S. 152, 168-84 (1990)
(Scalia, J., concurring) (legal opinions of DOJ Office of
Legal Counsel not entitled to deference because they
involved matters over which OLC had no enforcement
responsibility).
Courts seem to be especially unwilling to defer to agency
interpretations on matters involving court authority (e.g., scope of
review, extent of court jurisdiction or judicial remedies).
o Adams Fruit, supra .
o United States v. Fausto , 484 U.S. 439 (1988) (no deference
to agency interpretation regarding whether the agency’s
actions are judicially reviewable). Accord, Love v. Thomas ,
858 F 2d 1347, 1352 (9th Cir. 1988), cert. denied . 490 U S.
1035 (1989) (no deference accorded to EPA interpretation
of FIFRA judicial review provision; EPA lacks the authority
to administer that provision)
-- But see NLRB v United Food & Commercial
Workers Union , 484 U.S. 112 (1987) ( Chevron
deference accorded to agency interpretation of
scope of agency enforcement authority which had
the effect of precluding judicial review); Boston v
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CHEVRON WHAT’S THE DEFERENCE? Page 3
HUD , 898 F.2d 828, 830 (1 ’ Cir 1990) ( Love v.
Thomas does not apply where judicial review
provision of statute uses same words as other part of
statute implemented by the Agency)
o Pierce v. Underwood , 487 U.S. 552 (1988) (no deference to
agency interpretation regarding availability of attorneys fees
in suits against the agency).
o Linemaster Switch Corp . v EPA , 938 F.2d 1299, 1303
(D.C. Cir 1991) (no deference to agency’s interpretation of
the legal effect of the agency missing a statutory deadline on
the regulated community, there was no congressional
intention to delegate to the agency “the authority to devise a
remedy for its own untimeliness”).
o But see Wagner Seed Co inc v Bush , 946 F.2d 918 (D.C.
Cir. 1991) (deference to EPA interpretation of whether
parties were eligible for reimbursement of response costs
incurred prior to enactment of CERCLA provision
providing for reimbursement; Adams Fruit held inapplicable
because Agency was responsible for making initial
determination on reimbursement request).
A separate line of cases also suggests that if more than one agency
is charged with administering the same statutory provision, no
agency will receive Chevron deference, because there’s no evidence
that Congress intended to delegate interpretive authority.
o CF Industries v. FERC , 925 F.2d 476, 478 (D.C. Cir. 1991)
(deference not appropriate where FERC and ICC authority
overlap); Guam v. Sea-Land Serv. , 958 F.2d 1150 (D.C.
Cir. 1992) ( FMC & ICC).
o v. Sims , 471 U S. 159 (1985) (no deference to agency
interpretation of FOIA regarding the need to release
documents). See also Anderson v. HHS , 907 F.2d 936
(10th Cir. 1990); Reporters v U S Dept. of Justice , 816
F.2d 730 (DC. Cir. 1987), rev’d on other grounds . 489
U.S 749 (1989) (same)
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CHEVRON WHAT’S THE DEFERENCE? Page 4
o United States v. S.A Empresa de Viacao Aerea Rio
Grandense , 467 U.S. 797 (1984) (no deference to agency
interpretation of its own liability under Federal Tort Claims
Act).
o Scales v. INS , 232 F.3d 1159, 1165 (9th Cir. 2000)
(concluding that a State Department Foreign Affairs Manual
is not entitled to deference because the Attorney General,
not the State Department, has statutory authority to
interpret immigration statutes).
o The rule of law may be different where one Agency
administers the statute, and other Agencies are subject to
compliance with it PUD No I v Wash. Dept. of Ecology ,
511 U.S. 700 (1994) (according Chevron deference to EPA
interpretation of CWA Section 401); American Rivers v
FERC , 129 F.3d 99 (2d. Cir. 1997) (refusing to accord
deference to FERC interpretation of 401).
Many of the cases cited above also suggest the court will not defer
to an agency interpretation where the agency has a vested interest
concerning the outcome. Fausto, Pierce, Linemaster Switch,
Sims, S.A. Empresa. See also, Meadow Green-Wildcat Corp . v
Hathaway , 936 F.2d 601 (1st Cir 1991) ( Chevron deference
inappropriate to an agency’s interpretation of contracts to which it
is a party).
D. Problems Which Arise at “Step 1”
Can the Court resort to other provisions of the statute or the legislative
history to decide whether Congress was clear?
Davis County v. EPA. , 101 F.3d 1395, 1405 (D.C. Cir. 1996)
(“Even though we find the meaning of [ the statutory section] clear
from its text, we will examine the legislative history of [ the] section
to determine whether reading [ the] section according to its literal
meaning will frustrate congressional intent.”)
Chevron itself makes it clear that the court may resort to secondary
indicators of Congressional intent such as legislative history to
determine whether it must proceed to Step 2. 463 U.S. at 843 &
n.9. See also, American Mining Congress v EPA , 824 F.2d 1177,
1182 (D.C. Cir. 1987).
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CHEVRON WHAT’S THE DEFERENCE? Page 5
— But the courts will not resort to legislative history when the text of
the statute itself is clear and unambiguous. HLTD v Rucker , —
U.S __, 2002 U.S. LEXIS 2144 (Mar 26, 2002)
2 Do traditional canons of statutory construction still apply to determine
Congressional intent or defeat the agency’s interpretation?
The answer generally appears to be yes.
o Bowen v. Georgetown University Hosp. , 109 S Ct 468
(1988) (agency interpretation rejected under principle that
statutes apply retroactively only with clear Congressional
intent)
o DeBartolo, supra; Rust, supra (agency interpretations which
create serious constitutional problems will not get
deference); but see, HUD v. Rucker . — U.S.__, 2002
U.S. LEXIS 2144 (Mar. 26, 2002) (rule against avoiding
constitutional problems in interpretation applies only when
statutory language is ambiguous)
o But see Michigan Citizens for an Independent Press v.
Thornburgh , 868 F.2d 1285, 1292-93 (D.C. Cir.). affd by
an equally divided court , 493 U.S. 38 (1989) ( Chevron
supersedes canons based on substantive policy
considerations, e g., the canon that exceptions to the
antitrust laws should be narrowly construed).
o See also. Environmental Defense Fund v EPA , 82 F.3d
451, 467-69 (D.C. Cir. 1996) (using canon of construction
that Congress does not intend statutory language to lead to
absurd results; after concluding that a literal application of
the text would actually “frustrate” the statute’s very
purpose, court deferred to EPA’s alternative construction).
o But see, Barnhart v. Sigmon Coal Co. , 122 S.Ct. 941
(2002) (refusing to give deference to Agency interpretation
of statute despite arguments that the statutory language led
to “absurd results”; also refusing to credit floor statements
of individual senators supporting Agency’s interpretation):
“Where the statutory language is clear and unambiguous,
we need neither accept nor reject a particular ‘plausible’
explanation for why Congress would have written a statute
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CHEVRON : WHAT’S THE DEFERENCE’? Page 6
[ in the manner objected to by the agency]. Dissatisfied
with the text of the statute, the [ agency] attempts to search
for and apply an overarching legislative purpose to each
section of the statute. Dissatisfaction, however, is often the
cost of legislative compromise And negotiations
surrounding enactment of this bill tell a typical story of
legislative battle among interest groups, Congress, and the
President. Indeed, this legislation failed to ease tensions
among many of the interested parties. Its delicate crafting
reflected a compromise amidst highly interested parties
attempting to pull the provisions in different directions. As
such, a change in any individual provision could have
unraveled the whole. It is quite possible that a bill that [ was
consistent with Agency interpretation] would not have
survived the legislative process The deals brokered during a
Committee markup, on the floor of the two Houses, during
a joint House and Senate Conference, or in negotiations
with the President are not for us to judge or second-guess”
122 S.Ct. at 955-56.
3 Does Congressional Failure to Deny Explicitly an Agency the Authority to Adopt a
Particular Interpretation Create a “Step 2” Ambiguity?
The Courts seem to be split on this question.
o American Mining Congress v. EPA , 965 F.2d 759 (9th Cir. 1992)
(Court examines Agency interpretation under Step 2 unless
“Congress has explicitly sanctioned” the desired interpretation).
o Ethyl Corp . v EPA , 51 F.3d 1053, 1060 (D.C. Cir 1995) (“To
suggest, as the [ agency] effectively does, that Chevron step two is
implicated any time a statute does not expressly negate the
existence of a claimed administrative power ... is both flatly
unfaithful to the principles of administrative law ... and refuted by
precedent.”)
o Engine Manufacturer’s Ass’n v. EPA , 88 F.3d 1075, 1088 (DC.
Cir. 1996) (“The most traditional tool, of course, is to read the text;
if it clearly requires a particular outcome, then the mere fact that it
does so implicitly rather than expressly does not mean that it is
“silent” in the Chevron sense.”)
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CHEVRON : WHAT’S THE DEFERENCE? Page 7
— See also, Barnhart v Walton , _U.S. __, 2002 U S
LEXIS 2145 (moving to step 2 in face of statutory
provision where one phrase was modified to prohibit a
certain result, but not the other parallel phrase). “This
linguistic point is insufficient. It shows that the particular
statutory provision says nothing explicitly about the
[ interpretation at issue] But such silence, after all, normally
creates ambiguity it does not resolve it.”
E. Problems Which Arise at “Step 2”
Does the Agency have support for its policy rationale, and was it explained
on the record?
Before a court will defer to a change in an agency’s statutory
interpretation, the agency must provide a reasoned explanation for
the change Leeco v. Hays , 965 F 2d 1081 (D.C. Cir. 1992)
But the court may defer to an agency’s interpretation that forms the
logical basis for a regulatory decision, even if the specific
interpretation is not well-articulated in the decision. Nat’l R.R
Passenger Corp . v. Boston & Maine Corp. , 112 S.Ct. 1394 (1992).
In the case, the statute gives ICC authority to order condemnation
of property “required for intercity.. service.” Amtrak took the
property after an ICC order, then sold it to another railroad The
ICC decision does not specifically outline why it thought the
property was “required” for Amtrak use, but the ICC argued on
appeal it also refers to property which Amtrak intends for use by
another rail service. The Court upheld the decision because the
ICC’s interpretation of the term “required” was implicit in its final
decision. . at 1403. But see . at 1406-07 (3 judges dissent,
saying Chevron does not apply to post-hoc rationalizations by
counsel not clearly articulated in the Agency’s decision).
2. How consistent is the Agency’s interpretation with past policy or practice?
The age and consistency of the agency interpretation is a factor in
determining its reasonableness.
0 Pauley v. Bethener Mines. Inc. . 111 S.Ct. 2524 (1991).
0 CFTC v. Schor , 478 U.S. 833 (1986).
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CHEVRON WHAT’S THE DEFERENCE? Page 8
0 Nonetheless, agencies are entitled to make “sharp breaks”
with their prior statutory interpretations Rust v Sullivan ,
111 S Ct. at 1769. The agency must explain the basis for its
prior departure, however Leeco v Hays , 965 F 2d at
1085. See also. Good Samaritan Hospital v. Shalala , 508
U.s. 402 (1993) (following but at least suggesting
there is less somewhat less deference for a changed
interpretation).
o The Courts will treat an interpretation as “long-standing”,
even if it is adopted initially by “non-formal means” and
later formalized in a notice & comment rulemaking.
Barnhart v Walton , U.S __, 2002 U S. LEXIS 2145
(Mar. 27, 2002)
3 What constitutes a “reasonable” agency interpretation?
-- Relationship to goals and purposes of the statute.
o Kerr McGee Corp . v. NRC , 903 F.2d 1 (D C. Cir. 1990)
(rejecting agency interpretation narrowing the scope of a
regulatory program because it recreated a jurisdictional gap
that Congress intended to close).
-- Interrelationship of “Step I” to “Step 2”.
o Mead Corp . v. Browner , 100 F.3d 152 (D.C Cir. 1996)
(although governed by Step 2, Agency interpretation is
“unreasonable” because inconsistent with apparent (though
unclear) Congressional intent of statutory language at issue)
II What degree of deference is due to agency interpretations?
A. Interpretation of regulations
Courts will generally defer to an agency’s interpretation of its own
ambiguous regulation unless the interpretation is plainly erroneous or
inconsistent with the regulation, regardless of format (e.g., deference is
generally due even if the interpretation appears for the first time in
litigation). Auer v. Robbins , 519 U.S. 452, 460 (1997). Christensen and
Mead , below, do not change this standard.
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CHEVRON : WHAT’S THE DEFERENCE’? Page 9
Interpretation need not be contemporaneous. Paragon Health Network.
Inc v Thompson , 251 F.3d 1141 ( 7 th Cir 2001). Can be advanced for the
first time in litigation. Auer, supra (upholding Dept. of Labor
interpretation of long-standing regulations as applied to new factual
situation and described in an amicus brief) “Petitioners complain that the
Secretary’s interpretation comes to us in the form of a legal brief; but that
does not, in the circumstances of this case, make it unworthy of deference.
The Secretary’s position is in no sense a “post hoc rationalization”
advanced by an agency seeking to defend past agency action against attack.
There is simply no reason to suspect that the interpretation does not reflect
the agency’s fair and considered judgment on the matter in question” 519
U S. at 462 (citation omitted)
Interpretation can be changed without notice and comment Syncor Int’l
Corp v Shalala , 127 F.3d 90, 95 (DC Cir. 1997); but compare Paralyzed
Veterans of Americav DC Arena , 117 F.3d 579, 588 (D.C Cir. 1997)
(interpretations of regulations cannot be changed w/o notice and
comment). [ Note — for further information on this issue, see the outline of
John Hannon elsewhere in this notebook.]
— However , an interpretation of a regulation that conflicts with a
prior interpretation will, in practice, get much less deference than a
consistently held view. Thomas Jefferson Univ. v Shalala , 512
U.S. 504, 515 (1994); Western States Petroleum Ass’n v. EPA , 87
F.3d 280 ( 9 th Cir. 1996).
B Interpretation of statutes
Christensen v. Harris County . 120 S. Ct. 1655 (2000)
-- Found Chevron deference appropriate for statutory interpretations
in actions such as rules and formal adjudications, but not
appropriate for interpretations in formats such as opinion letters
policy statements, agency manuals, or enforcement guidelines,
which “lack the force of law” These may receive “ Skidmore ”
deference.
-- in Skidmore v. Swift & Co. , 323 U.S. 134 (1944), the
Supreme Court explained that “an agency’s interpretation
may merit some deference whatever its form, given the
‘specialized experience and broader investigations and
information’ available to the agency.” Mead , infra, 121 S.Ct
at 2175 (quoting 323 U.S. at 139). The Court instructed
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CHEVRON : WHAT’S THE DEFERENCE? Page 10
that determining whether Skidmore deference is owed turns
on the “thoroughness evident in [ the agency’s]
consideration, the validity of its reasoning, its consistency
with earlier and later pronouncements, and all those factors
which give it power to persuade, if lacking power to
control.” 121 S.Ct. at 2172 (quoting Skidmore , 323 U.S. at
140) Generally, pursuant to Skidmore deference, an
agency’s position may be accorded respect depending on its
persuasiveness See 121 S. Ct at 2175-76
2 United States v. Mead Corp. , 513 U S. 218 (2001)
Held that a statutory interpretation qualifies for Chevron deference
when it appears that Congress “delegated authority to the agency
generally to make rules carrying the force of law, and that the
agency interpretation claiming deference was promulgated in the
exercise of that authority.” Delegation may be shown “in a variety
of ways, as by an agency’s power to engage in adjudication or
notice-and-comment rulemaking, or by some other indication of a
comparable congressional intent”
— “The fair measure of deference to an agency administering its own
statute has been understood to vary with circumstances, and courts
have looked to the degree of the agency’s care, its consistency,
formality, and relative expertness, and to the persuasiveness of the
agency’s position” . at 228.
3. Practical impact of Christensen and Mead
a Manuals, letter rulings. compliance bulletins, opinion letters.
interpretive bulletins. advisory opinions, Os and As. briefs
-- Courts routinely deny Chevron deference to statutory
interpretations in these formats. g., Catskill
Mountains Chapter of Trout Unlimited. Inc. v. City of New
York , 273 F.3d 481 (2d Cir. 2001) (disapproving previous
cases that gave Chevron deference to longstanding EPA
interpretation of “discharge” in letters, reports, and briefs);
Bowen v Georgetown Univ. Hosp. , 488 U.S. 202, 212
(1988) ( Chevron deference is not afforded to interpretations
announced for the first time in litigation); Parker v. Office
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CHEVRON WHAT’S THE DEFERENCE? Page 11
of Personnel Mgmt. , 974 F 2d 164 (Fed. Cir. 1992) (no
deference accorded to affidavit purporting to describe
agency’s “long standing” practice).
b. Informal adjudications (i e., actions that are neither formal
adjudications nor rulemakings)
Several cases give Chevron deference, applying varying
interpretations of the Mead standard. , kg., FEC v.
NRA , 254 F.3d 173 (D C. Cir. 2001) ( Chevron deference
for FEC opinion issued under detailed statutory
framework); In re Sealed Case , 223 F.3d 775 (D C Cir.
2000) (FEC probable cause determination issued pursuant
to statutory procedures, binding on FEC and parties);
American Wildiands v Browner , 260 F 3d 1192 (lOth Cir
2001) (CWA water quality standards approval); SKF USA.
Inc v. United States , 263 F.3d 1369 (Fed. Cir. 2001)
(Commerce Dept. antidumping proceedings); Gonzalez v.
Reno , 215 F.3d 1243 (1 1 th Cir. 2000) (INS deportation
hearing). But see Pitsker v. OPM , 234 F.3d 1378 (Fed. Cir
2000) (MSPB denial of disability benefits is “informal
interpretation” meriting Skidmore deference)
c. Formal adjudications
One case holds interpretation promulgated pursuant to a
formal adjudication receives Chevron deference when
applied in a second case. Piney Run Preservation Ass’n v.
County Commissioners , 268 F.3d 255 ( 4 th Cir. 2001)
( Chevron deference for EAB interpretation of NPDES
permit coverage).
d. Rulemakings :
Courts will generally accord Chevron deference, but courts
may ask:
1) Was the rule promulgated under delegated
rulemaking authority? Madison v. Resources v.
Human Dev.. Inc. , 133 F.3d 175 (3d Cir. 2000)
( Skidmore deference to interpretive rule codified in
the C F.R. but not issued through rulemaking);
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CHEVRON . WHAT’S THE DEFERENCE? Page 12
National Organization of Veterans’ Advocates. inc.
v Secretary of Veterans Affairs , 260 F 3d 1365
(Fed. Cir. 2001) (same).
2) Is there some other reason the rule doesn’t have the
“force of law” 7 Hall v. EPA , 273 F.3d 1146 ( 9 th
Cir. 2001) (according only Skid more deference,
rather than Chevron deference, for SIP rule that
explicitly states that rule has no precedential effect).
3) Is the rule final? Utah Wilderness Alliance v.
Dabney , 222 F 3d 819, 829 (10th Cir. 2000)
(National Park Service policies still in draft form are
not entitled to Chevron deference)
e. Final rule preambles : Open question.
-- Supreme Court in Whitman v. American Trucking Ass’n .
j ., 531 U S 457 (2001) finds final rule preamble that
interprets the statute (but is not tied to rule text) is final and
ripe Assumes w/o deciding that Chevron applies; no
discussion. No reference to Christensen
f. Procedural rules exempt from notice and comment rulemaking :
— Chevron deference is afforded to such rule. Edelman v
Lynchburg College , 122 S.Ct. 1145 (2002).
g. Substantive rules exempt from notice and comment rulemaking
(Examples grants, benefits, property, foreign affairs.): Open
question.
— The Supreme Court said in Mead that, “ [ w]e have
sometimes found reasons for Chevron deference even when
no such administrative formality was required and none was
afforded.” 533 U.S. at 230-3 1
h. “ Good cause” rules : Open question.
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CHEVRON : WHAT’S THE DEFERENCE? Page 13
C. Where are we now?
Guidance interpreting statutes may be found final and reviewable yet not
merit Chevron deference. See EEOC v Borg-Warner , 245 F.3d 831 (D C.
Cir. 2001)
-- Consistency in interpretation is important. Western States , 87 F.3d
at 284.
2. How do you decide whether you are in the Auer realm or the Mead realm?
See. e.g., Matz v Household Int’l Tax Reduction mv. Plan , 265 F.3d 572
( 7 th Cir. 2001) (declining to accord Chevron deference to IRS statutory
interpretation in an amicus brief per Mead , though noting that
interpretation in Auer was announced in an amicus brief)
— Although the case is arguably about statutory, not regulatory
interpretation, court seems to suggest that Mead somewhat
supersedes Auer .
— A number of cases find that fill deference under the Auer/Thomas
Jefferson Univ. v. Shalala line of cases is due to the agency’s
interpretation of its own regulations, regardless of the format of the
interpretation, citing to the discussion in Christensen indicating that
this standard is still good law $ , Takacs v. Hahn Auto.
Corp. , 246 F.3d 776 ( 6 th Cir. 2001); In re Sealed Case , 237 F.3d
657 (D.C. Cir. 2001); Bigelow v. DOD , 217 F.3d 875 (D C. Cir
2000); Akzo Nobel Salt. Inc. v. FMSHRC , 212 F.3d 1301 (D.C
Cir. 2000). Cunningham v Scibana , 259 F 3d 303 ( 4 th Cir.
2001) (deference under Auer not appropriate for interpretation of
regulation when the regulation merely repeats statutory language)
- - Navarro v. Pfizer Corp . 261 F.3d 90 (1M Cir. 2001) ( Chevron
deference not appropriate to EEOC interpretation of Dept. of
Labor regulations, where EEOC lacked authority to issue
regulations itself even though Dept. of Labor regulations were
based on prior EEOC regulations issued under similar but different
statute).
- - U.S. Freightways Corp v Commissioner of Internal Revenue , 270
F.3d 1137, 1142 ( 7 fh Cir. 2001) (declining to accord Chevron
deference to IRS interpretation of its own regulations described in
litigation “Both the informality of this interpretation and the
context in which it has arisen persuade us that fill Chevron
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CHEVRON WHAT’S THE DEFERENCE9 Page 14
deference is not appropriate here. Mead expressly disapproved of
the exercise of [ ].deference in [ the non-rulemaking context] ... in
part because of the boot-strapping that could otherwise occur. With
full Chevron deference, agencies could pass broad or vague
regulations through notice-and-comment procedures, and then
proceed to create rules through ad hoc interpretations that were
subject only to limited judicial review.”)
3 How does this relate to the “guidance” vs “rule” issue? Well, in the D.C.
Circuit and 5 th Circuits, an Agency must go through notice and comment to
change an interpretation of an existing regulation, but if that
interpretation was “definitive” or “official.” Ass’n of American RR’s v
Dept. of Transportation , 198 F.3d 944 (D C. Cir. 1999), Alaska
Professional Hunters Ass’n.. Inc v. FAA , 177 F.3d 1030 (D.C. Cir. 1999).
Yet, even such “definitive” interpretations may get only “ Skidmore ”
deference, to the extent that a court applies the Chevron/Skidmore
standard rather than the AuerlThomas Jefferson standard of deference to
regulatory interpretations.
-- But, if EPA goes through notice and comment rulemaking to
change an interpretation of a regulation, wouldn’t it be issuing what
is in effect a new substantive rule?
— While this appears to be an open question, in such a case,
the Agency could at least argue that the new substantive
regulation is entitled to the greater Chevron deference
rather than just Skidmore deference.
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7
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:ll PO 7 T E 1OTL
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Topic 7
Consultation with Tribes
•Speaker Biographies - Rich McAllister and Tod Siegal
•Consultation with Tribes Outline
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TOPIC 7 BIOGRAPHIES
RICH MCALLISTER
Rich McAllister has been an Assistant Regional Counsel for EPA Region
10 since 1990. In addition to being the Office of Regional Counsel’s contact
for Indian law matters, he works on Superfund, Clean Air Act and Clean
Water Act counseling and enforcement. Rich has worked In two other EPA
offices since 1979. First, he was an environmental protection specialist in
EPA’S Office Of Toxic Substances in Washington, D.C., working on asbestos
and chemical industry rules. In 1983 Rich moved to Boston for law school,
and then joined EPA Region I ORC to work on CERCLA and RCRA matters.
Rich has been awarded two gold, I silver, and 7 Bronze medals.
Rich received his J.D. from Northeastern University School of Law, a
Masters of Public Administration from the University Of Colorado Graduate
School of Public Affairs, and a B.A. from Rutgers University.
TOD SIEGAL
Tod Siegal is an attorney with EPA’S Office of General Counsel, Cross-
Cutting Issues Law Office in Washington, D.C. Tod provides counseling to
the Agency on Indian law and policy issues and on issues arising under the
Endangered Species Act, the Migratory Bird Treaty Act, and the National
Historic Preservation Act.
Before joining EPA in September 1998, Tod worked as a litigation
associate in the New York and Washington, D.C. offices of Shearman &
Sterling. Tod received his J.D. from the University of Michigan Law School
in 1992 and his B.A. in biology from Columbia University in New York in
1989.
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TOPIC 7. CONSULTATION WITH TRIBES
EPA Guidance on Tribal Consultation
EPA 1984 Indian Policy (http //www.epa.govlindian/1984.htm)
which was affirmed by Administrator Whitman in July 2001
( http //www.epa gov/indian/pdfs/reafflrmindpolOl pdt)
EPA’s “Resource Guide” for Working Effectively with Tribal Governments ,
section on Trust Responsibility (p 46)
( hnp !/v viw epa gov/indian/resource/resource htm
Executive Order 13 175 ( http1/% v epa gov/indianll 3175 pdfl
R8 Policy for Environmental Protection in Indian Country
( http //www epa ov/indian/r8pol htm)
RiO Tribal Consultation Framework ( http I/www epa gov/rlOcarth / and then click
on “Tribes”)
OECA Guidance on the Enforcement Principles Outlined in the 1984 Indian
Policy, Jan 17, 2001
II. When Should EPA Consult with a Tribe?
A. Activities in Indian Country 1 The following are examples of the types of
activities which EPA undertakes in Indian country, and about which EPA should
consult with a tribe as it plans, and prior to completing, the action
1. Clean Water Act (CWA)
• Issuing National Pollutant Discharge Elimination System (NPDES)
permits
• Promulgating water quality standards that apply to reservation
waters
Indian country is defined at 18 U S C § 1151 and includes reservations, allotments in restricted
status, and dependent Indian communities Indian country also includes, among other types of land, lands
held in trust by the United States for tribes, Indian Pueblos. Indian colonies, and ranchenas.
—1—
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• Issuing CWA 401 certifications for CWA § 404 permits
• Establishing total maximum daily loads (TMDLs)
2. Clean Air Act
• Issuing Title V permits
• Designation/redesignation of areas for attainment of a national
ambient air quality standard (NAAQS)
• Promulgating federal implementation plans for Indian country
3. Safe Drinking Water Act
• Identifying public water systems subject to EPA requirements
• Issuing Underground Injection Control (IJIC) permits and
evaluating wellhead protection areas
4. RCRA
• Issuing hazardous waste permits for transportation, storage, or
disposal facilities (TSDFs)
• Approving TSDF closure plans
PRACTICE TIP: State program approvals or authorizations
State program approvals or authorizations by EPA (e.g, approval of State
Implementation Plans (SIP), approval of State primacy or authorization applications)
should expressly limit the ap.proved state program as not extending into Indian country,
unless the state makes an express showing of authority and EPA expressly approves the
state to implement the program in Indian country
5. National Environmental Policy Act (NEPA) and CAA § 309
• Reviewing the environmental impacts of proposed federal actions
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6. National Historic Preservation Act (NHPA) § 106
Approving an undertaking that may cause effects on an historic
property
Under the NHPA . EPA is responsible for determining whether an action is an
“ undertaking ” and whether the action has the potential to cause effects on historic
properties . If “yes,” then EPA should determine whether historic properties are present,
including sites that have traditional religious and cultural importance to an Indian tribe
or native Hawaiian organization, 36 CFR 800 16(1) If the activity is an underlalang
with the potential to cause effects to historic properties of a tribe, EPA must consult with
the affected tribe.
7. CERCLA
• Assessing sites, deciding whether to add a site in Indian country to
National Priorities List (NPL)
• Negotiating with potentially responsible parties (PRPs)
• Identif ying ARARs, establishing future use and cleanup levels
• Establishing work plans, clean-up schedules
TAS under CERCLA Sec 126 of CERCLA lists certain out ho rities for which tribes may
be “treated as a state. ‘ and the National Contingency Plan (NCP) at 40 CFR
§ 300 515(b) lists criteria a tribe must meet in order “to be afforded substantial/v the
same treatment as a state (TAS) under section 104 of CERCIA.” EPA responsibility
to consult is independent of whether a tribe qualifies for TAS.
B. Activities Outside of Indian Country For EPA actions outside of Indian
country, there may be a need to consult with a tribe if the EPA action may affect
the Indian country environment or tribal resources. Examples of such activities
are listed below
1. CWA (in a state where a tribe has reserved fishing, hunting, and gathering
rights outside of Indian country)
• Reviewing and approving/disapproving state water quality
standards, including the triennial review of state standards
• Issuing or reviewing an NPDES permit
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Establishing or reviewing a TMDL for water segments that are
upstream of a reservation or share reservation waters
CWA 401(a) ( 2 ) To the extent thai the activities covered by the CWA outside of
indian country would violate the water quality standards of the downstream Indian
country area, the permit or license must be conditioned to ensure compliance
2. RCRA
• Permitting or approving closure of a hazardous waste TSDF if it may affect
the environment within Indian country (e g, air emissions, groundwater)
or tribal resources outside of Indian country
3. CAA
• Approving redesignation of a reservation airshed to Class I under CAA
§ 164, if it may affect another Indian reservation that is upwind
4. CERCLA (applies at a site which includes areas outside of Indian country
and resources in which a tribe has rights)
• Listing a site on the NPL
• Identifying ARARs, establishing future use and cleanup levels
• Establishing cleanup levels or identifying ARARs, when developing a risk
assessment, and when selecting the response action
Natural Resource Dama2es : If the natui al resources of the tribe may have been
damaged, EPA must notify the tribe and accord it the status of a natural resource
trustee (NCP at 40 CFR § 300.610)
5. NHPA
• Approving an undertaking occurring outside of Indian country that may
cause effects to an historic property located within Indian country or
outside of Indian country if the site has traditional religious and cultural
importance to an Indian tribe
C. EPA Enforcement actions - administrative and judicial . When undertaking
any type of compliance monitoring and enforcement activity within Indian country,
EPA should notify the tribal government, invite participation by tribal staff, and
consult with the tribe on EPA’s response. Specifically, EPA should
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1. Coordinate inspections and contemplated enforcement with tribal
governments, including litigation schedules
2. At the request of a tribe, evaluate the applicability of tribal laws and
penalties, and consider deferring to a tribe to take action to address the
situation.
3. Explore the possibility of joining a tribe in an enforcement action so the
tribe can assess a penalty under its own authority.
4. Consult with a tribe when negotiating Supplemental Environmental
Projects (SEPs) to be carried out in lieu of paying penalties to the U S
Treasury
5. With facilities owned or managed by a tribal government or in which a
tribal government has a substantial proprietary interest or over which a
tribal government has control, look to EPA’s 1984 Indian Policy which
states that EPA will work cooperatively with the tribal government to
achieve compliance, and will resort to a formal enforcement action only if
necessary
PRAC11CE TIP: Get help with Indian country boundaries or status
In cases here a state, local government, or owner/operator disputes that the fac lht% or regulated
actwitv is located in Indian country, EPA should consult ‘v ith the tnbal government to obtain its
views on EPA direct implementation before proceeding
D. When a Tribe has an EPA-aDproved Program (e.g., water quality standards
Approval of a tribe for TAS may require additional consultation with that tribe
about proposed actions by EPA.
1. Upon approval of a tribe’s TAS eligibility to administer water quality
standards and issue CWA § 401 certifications, the tribe will be able to
adopt tribal standards for reservation waters that would be in effect under
the CWA upon EPA approval.
When tribal standards are in effect on one segment of a waterbody, EPA
must consider those standards when taking a number of actions that could
affect those waters, whether they are waters within the reservation or
waters upstream of a reservation.
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• Any NPDES permits issued by EPA to a facility discharging to reservation
waters would have to meet the approved tribal standards, and any NPDES
permit off-reservation that would affect reservation waters would have to
ensure consistency with the tribal standards.
• If the tribal water quality standards are not being met on a reservation
waterbody, the tribe may request that EPA publish a § 303(d) list and
prepare a TMDL.
2. If a tribe is approved for lAS to assume authorities under the CAA, this
will affect EPA’s administration of the CAA within Indian country For
example
• When a tribe is approved for lAS as an “affected state” under § 505(a)(2)
of the CAA, the EPA Region preparing Title V permits for Indian country
or within 50 miles of the area of Indian country for which the tribe is
approved must notify the tribe and provide an opportunity for the tribe to
submit recommendations respecting issuance of the permit
• When EPA approves a Tribal Implementation Plan (TIP), the approved
tribal law requirements constitute applicable requirements for purposes of
Title V permits issued by EPA, may affect the requirements for Prevention
of Significant Deterioration (PSD) pre-construction permits, and are
federally enforceable
ifi. How Does EPA Consult Government-to-Government?
A. Generally, ORC or OGC will rely on the program office client to maintain
communications and consult with affected tribes As requested by the media
program client office, ORC and OGC may help to plan appropriate consultation
and participate in meetings as requested. The attorney may have a greater role in
tribal consultation involving enforcement matters
B. Within OGC, the Cross-Cutting Issues Office has an Indian Law Team which
involves other media-specific OGC attorneys as appropriate
C. Within each ORC, there is at least one attorney who has lead responsibilities for
Indian issues, and is a member of EPA’s National Indian Law Work Group
D. Generally, it is expected that the OGC or ORC staff attorney responsible for a
particular matter will seek assistance from OGC’a Indian Law Team or ORC’s
Indian law contact when questions arise about I) whether an action has tribal
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implications, 2) how to coordinate and consult with a tribal government, 3) the
Indian country status or the status of treaty and statutory rights in the area where
the action is taking place, and 4) any other questions about the application of
federal environmental statutes to tribal facilities
PRACTICE TIP: Guiding Principles for Tribal Consultation
-4 Contact and provide any available materials necessary to the potentially affected federally
recognized tribes as early as practicable, to provide time for consultation pnor to makmg
a decision
4 Interact through officials of appropriate stature and authonty. and as determined b the
Regional Administrator and tribal government
4 Offer to meet if the tribe’s leaders request it.
4 Try to hold meetings with federally recognized tribal governments on theLr homelands
4 Keep in mind that public participation which involves individual citizens of Indian
country is not the same as consultation with affected federally-recognized tribal
governments
4 It is important to remember that tribal consultation does not replace requirements to
promote public participation that may apply to a given proposed federal action
LV. Confidentiality Considerations
A. FOLA Generally : As part of the consultation process, EPA should discuss with
the tribe how to handle privileged information that the United States may want to
protect from disclosure under the Freedom of Information Act (FOIA), 5 U S C
§ 552, or from discovery in litigation. EPA should emphasize to its tribal
counterparts that, although the United States will take all steps to protect from
disclosure shared information to the maximum extent permitted by law, the United
States cannot guarantee that information shared with or submitted by Tribal
governments will remain protected
B. Common FOIA exemptions .
Deliberative Process Exemption 5 of the FOIA, 5 U S C. § 552(b)(5), applies
to “inter-agency or intra-agency memorandums or letters which would not be
available by law to a party other than an agency in litigation with the agency”
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Enforcement Confidential. Exemption 7(A) of the FOJA, 5 U S.C.
§ 552(b)(7)(A), protects from disclosure “records or information compiled for law
enforcement purposes, but only to the extent that the production of such law
enforcement records or information (A) could reasonably be expected to interfere
with enforcement proceedings.”
PRACTICE TIP: Be careful about sharing confidential documents or promising to
protect documents submitted by a tribe .
EPA offices should be veiy cautious in sharing documents with a Tribal government that the United
States will want to protect from disclosure under FOIA or in litigation One strategy is to encourage
oral and in-person sharing of information and strategies
In Dep ‘t of the Interior v. Klamaih Water Users Protective Association, 121 S.Ct. 1060 (2001),
the Supreme Court ruled that Exemption 5 of the FOIA cannot be extended to protect all confidential
communications between the Department of the Interior (DO!) and Indian tribes. DO! withheld seven
records exchanged between DO! and several Indian tnbes located m the Kiamath River Basin under
the attorney work-product and deliberative process privileges The court ruled a document must
satisfy two conditions to be withheld its source must be a government agency, and it must fall within
the ambit of a pnvilege The court recognized that some Courts of Appeals have held that a document
prepared for a government agency by an outside consultant qualifies as an intra-agency”
memorandum However, a consultant does not represent its own interest, or the interest of any other
client, when it advises the agency that lures it, while a tribe would necessarily communicate with its
own, albeit entirely legitimate, interests in mind. The Court rejected DO!’s argument that compelled
release of the documents at issue would impair the Department’s performance of its fiduciar
obligation to protect the confidentiality of communications with tribes
withheld its source must be a government agency, and it must fall within the ambit of a privilege The
court recognized that some Courts of Appeals have held that a document prepared for a government agency
by an outside consultant qualifies as an “intra-agency” memorandum. However, a consultant does not
represent its own interest, or the interest of any other client, when it advises the agency that hires it, while a
tribe would necessarily communicate with its own, albeit entirely legitimate, interests in mind. The Court
rejected DOl’s argument that compelled release of the documents at issue
C Statute-specific exemptions . Exemption 3 of the FOIA, 5 U S C. § 552(b)(3),
protects information specifically exempted from disclosure by another statute in
specific situations. Tribes may be reluctant to provide information for EPA to
consider when assessing the potential impact of a planned EPA action, e g,
information identifying the location of an important cultural site or disclosing the
source of a traditional food used by tribal members There are at least two statutes
which may provide a basis for withholding such information from disclosure
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National Historic Preservation Act (16 Usc § 470w) The head of a Federal
agency, after consultation with the Secretary, shall withhold from disclosure to the public,
information relating to the location, character or ownership of a historic resource if the
disclosure may cause a significant invasion of privacy, risk harm to the resources, or
impede use of a traditional religious site.
Archaeological Resources Protection Act (16 USC § 470hh) Information
concerning the nature and location of any archaeological resource for which the excavation
or removal requires a pennit or other permission under this Act or under any other
provision of Federal law may not be made available to the public under FOIA or under any
other provision of law unless the Federal land manager concerned determines that such
disclosure would --(1) further the purposes of this Act, and (2) not create a nsk of harm to
such resources or to the site at which such resources are located
TRIBAL CONSULTATION
Case Study presentations with questions, discussion, possible answers
What are EPA’s consultation responsibilities?
Who should you coordinate with at EPA ?
Who should be contacted at the tribe?
EPA is working with a state environmental agency which is developing a TMDL
for a water body listed under sec 303(d) of the CWA. The listed water segment
enters and then leaves the reservation, with no reservation boundary identified
2. EPA is reviewing an application by the State for a revision to its SIP, but the
application does not mention Indian reservations.
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3 EPA has inspected a sewage treatment facility owned and operated by the tribal
government pursuant to an NPDES permit issued by EPA, and found there are a
number of violations.
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llllYllPOPffA T ff BOT
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Topic 8
“You Can Pay [ Attention to] Me Now, or Pay Me
Later”: Information Law at EPA
•Speaker Biographies - Pat Hirsch, Steven Moores, and
Renee Sarajian
‘Background — Basic Legal Authorities Involved In
Information Law
‘Discussion Topics
- Ashcroft Memo
- Post-September 11 Use of Exemption 2
- Deliberative Process in Litigation, FOIA and with
Congress
- Exemption 5 - States, Tribes and Kiamath
- Touhy
- Record Retention and Everything E! — E-FOIA,
E-record, E-mail, E-reading room
- Confidentiality Issues including Suggested Template
for CBI Determination
•Append ices
- Appendix A - Short Guide to FOIA
- Appendix B - Personal Privacy
- Appendix C - Touhy Samples
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TOPIC 8 BIOGRAPHIES
PAT HIRSCH
Since October, 2000, Pat Hirsch has been an Assistant General Counsel
for the 0CC, Finance and Operations Law Office, Information Law Practice
Group. AS FOIA Queen, Pat leads the Information Law Princes and
Princesses through their fiefdom Of records, privacy, electronic/internet
issues, and, of course, FOIA appeals and litigation. Pat began her EPA
career in 1986 in Region 7, after serving time in private firms in Wichita
and Kansas City, and clerking for the Chief Judge Of the Federal District
Court in Kansas. She moved to 0CC in 1998. She still has the most
tastefully decorated office in EPA. Pat would like to thank the University
of Kansas for her BA and JD, but most Of all, her Masters in clinical social
work, which included a year-long practicum working in an in-patient
psychiatric hospital, which, in hindsight, has proven to be most helpful in
preparing her for the move from Kansas City to Washington, D.C.
STEVEN MOORES
Steven Moores is an Associate Regional Counsel in the Office of
Regional Counsel, EPA Region 8. Steven is responsible for defensive
litigation, administrative and judicial appeals, and a full range of cross-
cutting legal issues for all media and offices within the Region. Steven also
serves as counsel to the Region’s Environmental Justice corps and as the
Regional contact for issues arising under Title VI Of the Civil Rights Act Of
1964. Steven’s previous federal experience includes serving as an Assistant
Regional Counsel in EPA Region 9 and as a Trial Attorney for the
Environmental Enforcement Section Of the Environment and Natural
Resources Division of the U.S. Department of Justice in San Francisco,
California.
steven has participated as a training instructor for inspector training
and in classes in negotiations, Title VI, depositions, and FOIA. In addition,
Steven is a member Of the Regional Incident Coordination seam and has
participated with the EPA Office of International Affairs in training and
consultation with the environmental agencies of the governments Of
Thailand and Vietnam.
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Steven has a B.S. in Journalism from the University Of Colorado, an
M.S. in Fishery and Wildlife Biology from Colorado State University, and a
J.D. from tile University of Louisville, where he served as an editor for the
Journal of Family Law. After graduation from law school and before
beginning federal service, Steven was in private practice in Santa Fe and
worked or the Office Of the New Mexico Attorney General.
REPIEE SARAJIAN
Renée Sarajian is currently the Regional Judicial Officer/Presiding
Officer for the United States Environmental Protection Agency, Middle
Atlantic States, Philadelphia, PA. She has been with the EPA for over 20
years. Prior to her present position she was a Senior Assistant Regional
Counsel, Special Deputy Ethics Official and Ethics Team Leader. During that
time she also served as the Lead Regional Counsel for issues arising under
the Freedom Of Information Act and Privacy Act. Her duties continue to
entail those matters as well as issues that arise under the Federal Records
Act. Renée received her B.A. degree from Temple University and her J.D.
degree from the Dickinson School of Law.
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NATIONAL COUNSELING ATTORNEYS CONFERENCE
TOPIC 8
YOU CAN PAY [ ATTENTION TO J ME NOW, OR PAY ME LATER:
INFORMATION LAW AT EPA
BACKGROUND-- BASIC LEGAL AUTHORITIES INVOLVED IN INFORMATION
LAW
Collection of Information
Agencies may not collect information from ten or more persons by means of identical
questions, or identical reporting or record-keeping requirements, unless the collection is cleared
by the Office of Manageme it and Budget (0MB) This is required by the Paperwork Reduction
Act, 44 U S.C § 3501 el seq. If information is requested from ten or more persons by means of
identical questions, the Agency must obtain a control number from 0MB, and display the control
number in accordance with 0MB regulatory requirements
Storage and Maintenance of Information
The Federal Records Act (FRA), 44 U SC § 3101 etseq,and § 3301 etseq The FRA
requires agencies to maintain and dispose of official records in accordance with formally adopted
records retention schedules Official records include material that is required by law to be
developed or that documents EPA actions or the formulation of EPA policies or decisions Data
files and raw data may be official records for purposes of the FRA if the data is necessary to
document the decision trail of the Agency’s action The records retention schedules and other
information about the FRA may be found at http //w . r epa gov/records
In the Fiscal Year 2001 Consolidated Appropriation Act (Pub Law 106-5 54), §515 (a)
requiring 0MB to issue guidelines for ensuring and maximizing the quality, objectivity, utility and
integrity of information disseminated by the Federal agencies, and provide affected persons to
seek and obtain correction of information maintained and disseminated by the agency that is not
accurate or otherwise does not comply with the guidelines. OMB’s information quality
guidelines were published February 22, 2002, at 67 Fed Reg 8452, EPA ’s notice concerning the
development of its guidelines was published March 14, 2002, at 67 Fed Reg 11483
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Release Pursuant to the Freedom of Information Act
The Freedom of Information Act (FOIA), 5 U.s.c § 552, provides that agencies will
make certain records available to the public by publishing in the Federal Register, and others by
making them available for public inspection and copying (either in person or electronically) All
other records are to be made available upon written request, unless one of nine specific
exemptions apply The Electronic FOIA amendments of 1996 (“E-F01A), Pub L No. 104-231,
require agencies to provide records in electronic format if requested, and if reasonably possible
Agencies must also develop electronic reading rooms and make agency-created documents that
have been requested and released available electronically if the agency decides they will be subject
to subsequent requests
It is important to note that, for the purposes of responding to FOIA requests, agency
“records”are not necessarily limited to agency “records” as defined under the FRA Responsive
records for FOIA purposes include all non-personal documents in existence at the time of the
FOIA request that are in the agency’s possession Once records have been identified as
responsive to a FOIA request, they must be retained pursuant to the FOJA records retention
schedule even if they otherwise would not be agency records under the FRA.
EPA FOLA regulations are found at 40 C F R. Part 2, the Department of Justice FOIA
Guide may be accessed on the internet at http !Iw vw usdoj govIoip/foi-act htm A short FOIA
outline is attached as Appendix A.
Confidential Business Information
Information may be claimed by a company to be confidential business information, or
“CBI” EPA regulations governing the detennination of CBI claims are found at 40 CFR Part 2,
Subpart B Pursuant to delegations, the Offices of Regional Counsel are responsible for CBI
determinations in the regions except for TSCA and FIFRA CBI OGC is responsible for HQ
determinations, and all TSCA and FIFRA CBI determinations
Privacy Information
The Privacy Act, 5 U S C § 552a, covers systems of records from which information is
retrieved by an individual’s personal identifier, such as name or Social Security Number For the
Agency’s Privacy Act records, a systems notice must be published which details what types of
information are contained in the system, and the routine uses of the information anticipated by the
Agency Most Agency records are not maintained in Privacy Act systems However, many other
agency records may contain information that is personal to an individual, and if the personal
privacy interest of the individual outweighs the public’s interest in the information, the
information is withheld from public disclosure pursuant to Exemption 6 of the FOIA. An outline
of privacy issues is attached as Appendix B.
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In addition, there are prohibitions on the use of information generated from research on
human subjects. See, for example, 28 C.F.R. Part 46, Protection of Human Subjects; 28 C F.R
Part 22, Confidentiality of Identifiable Research and Statistical Information.
A-lb
In 1997 EPA reftised to obtain data from the Harvard School of Public Health that had
been used in EPA grant-funded studies Due in large part to adverse reaction to this situation,
Congress directed 0MB to revise 0MB Circular A- 110 to “require Federal awarding agencies to
ensure that all data produced under an award will be made available to the public (pursuant to
FOIA).” The Supreme Court had previously ruled that records in the possession of a Federal
grantee but not in the agency’s possession were not “agency records” and not subject to FOIA
Therefore, agencies previously had no obligation to obtain records from grantees
0MB published its final revision to Circular A- 110 on October 8, 1999 (64 Fed. Reg
54926), and EPA adopted the amendment March 16, 2000 (65 Fed Reg. 14407, 14417) Under
new 40 C.F R. §30.36(d), in response to a FOIA request, EPA must request from its recipients,
and the recipients must provide, “research data relating to published research findings produced
under an award that were used by EPA in developing an agency action that has the force and
effect of law” The term “published” is defined as either when the findings are published in a
peer-reviewed scientific or technical journal or when a Federal agency publicly and officially cites
the findings in support of agency action that has “the force and effect of law.”
The revised regulation also narrows the, definition of “research data” to exclude
preliminary analyses, drafts of scientific papers, plans for future research, peer reviews,
communications with colleagues, and physical objects. It also excludes confidential business
information, personal privacy material, and similar information protected by exemptions under
FOIA.
Toxics Release Inventory (TRI )
The TRI is a publicly available, searchable database that includes information on over
20,000 facilities and the releases and transfers of toxic chemicals at or from those facilities The
TRI was developed under the Emergency Planning and Community Right-to-Know Act
(EPCRA), 42 USC § 11001-11050 and the Pollution Prevention Act (PPA), 42 USC § 13101-
13109, and is required by statute to be made publicly available by computer telecommunications
and other means. Currently the main methods of accessing the data are the internet and EPA’s
Public Data Release, which is a report that compiles much of the data on a yearly basis
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Information as Intellectual Property
EPA produces and receives many types of data in the course of carrying out its statutory
and regulatory responsibilities While data itself is not generally subject to copyright protection
under the Copyright Act, 17 U.S.C. § 101 et. seq, the presentation of data, and software
programs, may be copyrighted. In addition to holding copyright protection on its programs, the
software industry commonly enters into licensing agreements with purchasers of its products. If
the software is developed under contract with the Agency, the Agency retains a license to use the
program, and EPA may allow the contractor /developer to copyright the program. Since the
licensing agreements are contracts binding the Agency, they must be re iewed by Agency legal
counsel to ensure compliance with federal law
Internet Information
The Children’s Online Privacy Protection Act (COPPA) limits private sector websites in
the collection of information from children 0MB has directed all executive branch agencies to
also comply with the standards set forth in the statute. COPPA, 15 U.S C. 6501-6505; Federal
Trade Commission Rule implementing COPPA, 16 C.F.R. Part 312; EPA also has implemented a
policy to comply with COPPA.
The Child Online Protection Act, COPA, (47 U S C 231) prohibits distribution to minors
via commercial websites of material that is “harmful to minors,’ i.e., obscene material Successor
to Communications Decency Act, which U.S Supreme Court struck down, ACLU v Reno , 521
U.S. 844 (1997). COPA is being challenged before U.S. Supreme Court, ACLU v Ashcroft , 217
F.3d 162 (3rd Cir. 2000), cert. granted . 2001 U S. App. LEXIS 3820, (March 13, 2001), argued .
Nov 28, 2001. While EPA does not maintain a commercial website, we are concerned about
linking to other sites or posting comments from the public that may be “harmful to minors.”
In addition, 0MB has issued 0MB Memorandum 00-13, “Prvacv Policies and Data
Collection on Federal Web Sites, “June 22, 2000, instructing agencies on the use of persistent
and session “cookies” on agency websites. A cookie is a small bit of software that is placed on an
internet user’s hard drive by a server While cookies can speed the information delivered to the
user and aid navigation through web pages, they can also gather personal information and track
web sites accessed by individuals, which, of course, raise privacy concerns
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DISCUSSION TOPICS
I. Ashcroft Memo
Nearly every Attorney General since Griffin Bell in 1977 has issued a policy memorandum
on FOIA implementation. Attorney General Ashcroft issued his on October 12, 2001. This
memorandum supersedes the 1993 Reno memorandum, which imposed a “foreseeable harm” test,
with a “sound legal basis” test that is similar to the Reagan administration policy that had been in
effect prior to 1993. Historically, these memos have reflected the pendulum swings of
administrations from emphasizing discretionary disclosure to protecting information, and back
again.
The text of the memorandum is as follows:
Memorandum for Heads of all Federal Departments and Agencies
From: John Ashcroft, Attorney General
Subject: The Freedom of Information Act
As you know, the Department of Justice and this Administration are committed
to fill compliance with the Freedom of Information Act (FOIA), 5 U.S.C. § 552
(2000). It is only through a well-informed citizenry that the leaders of our nation
remain accountable to the governed and the American people can be assured that
neither fraud nor government waste is concealed.
The Department of Justice and this Administration are equally committed to
protecting other fundamental values that are held by our society. Among them are
safeguarding our national security, enhancing the effectiveness of our law
enforcement agencies, protecting sensitive business information and, not least,
preserving personal privacy.
Our citizens have a strong interest as well in a government that is filly
functional and efficient Congress and the courts have long recognized that certain
legal privileges ensure candid and complete agency deliberations without fear that
they will be made public. Other privileges ensure that lawyers’ deliberations and
communications are kept private. No leader can operate effectively without
confidential advice and counsel. Exemption 5 of the FOIA, 5 U. S.C. § 552(b)(5),
incorporates these privileges and the sound policies underlying them.
I encourage your agency to carefully consider the protection of all such values
and interests when making disclosure determinations under the FOIA. Any
discretionary decision by your agency to disclose information protected under the
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FOIA should be made only after full and deliberate óonsideration of the
institutional, commercial, and personal privacy interests that could be implicated by
disclosure of the information.
In making these decisions, you should consult with the Department of Justice’s
Office of Information and Privacy when significant FOIA issues arise, as well as
with our Civil Division on FOIA litigation matters. When you carefully consider
FOIA requests and decide to withhold records, in whole or in part, you can be
assured that the Department of Justice will defend your decisions unless they, lack a
sound legal basis or present an unwarranted risk of adverse impact on the ability of
other agencies to protect other important records.
This memorandum supersedes the Department of Justice’s FOLA Memorandum
of October 4, 1993, and it likewise creates no substantive or procedural right
enforceable at law.
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II. Post-September 11 Use of Exemption 2
Exemption 2 has new vitality now that Agencies are struggling to cope with post-
September Ii sensitivity to information dissemination. Federal agencies are concerned with the
need to protect critical systems, facilities, stockpiles, and other assets from security breaches and
harm -- and in some instances from their potential use as weapons of mass destruction in and of
themselves.
DOJ is advising agencies that protection for such records or information, if requested
under the FOIA, is available under Exemption 2 of the Aèt, 5 U.S.C. § 552(b)(2) (2000). Any
agency assessment of, or statement regarding, the vulnerability of such a critical asset should be
protected pursuant to Exemption 2. See FOIA Update, Vol. X, No. 3, at 3-4 (“OIP Guidance:
Protecting Vulnerability Assessments Through Application of Exemption Two”). Beyond that, a
wide range of information can be withheld under Exemption 2’s “circumvention” aspect,
sometimes referred to as “high 2,” as is discussed in the “High 2’: Risk of Circumvention”
Subsection of the “Exemption 2” Section of the “Justice Department Guide to the Freedom of
Informafion Act.” DOJ encourages Agencies to avail themselves of the full measure of
Exemption 2’s protection for their critical infrastructure information as they continue to gather
more of it, and assess its heightened sensitivity.
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III. Deliberative Process in Litigation FOIA and with Congress
Litigation-Discovery FOIA-Exemption 5
who General Counsel Anyone delegated authority to
may assert? concurrence withhold records
what? Records reflective of Agency’s inter- or intra- agency memoranda
deliberative process or letters
If request is from Congress, or one of its committees or subcommittees, FOIA does not allow use
of Exemption 5 to withhold information. We note the privileged nature of the material in cover
letter, reserving our right to withhold under FOIA and asking Congress to protect the
information. We also mark the copies provided to Congress as privileged.
If request is from an individual member of Congress, not on behalf of committee or
subcommittee, then it is handled like a FOIA.
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1V. Exemption 5—States Tribes, and Kiamath
FOIA Exemption 5 protects from disclosure “inter-agency or intra-agency memorandums or
letters which would not be available by law to a party other than an agency in litigation with the
agency.” What does “inter-agency or intra-agency” mean? Must we interpret it literally or may
we use a functional test?
The Supreme Court had occasion to consider the functional test of Exemption 5 in Dept.
of Interior v. Kiamath Water Users Protective Association . 121 S.Ct. 1060 (2001)
— Requestor sought documents provided to DOl by Indian tribes in Kiamath River Basin
— the Tribe had furnished information to DOl to advocate the Tribe’s demands for water
allocation rights from the River
— DOl claimed that these were intra-agency documents and were privileged pre-decisional
deliberative process or attorney-client communications
— Documents contributed to DOl’s decision-making process
— Larger question: were these truly “intra-agency” documents
— Justice Souter devoted much of opinion to reviewing decisions in which records shared
outside were found to qualify as inter or intra-agency records and found common theme :
the circuit courts applied Exemption 5 when the outside party was acting as “consultant”
who was not advancing an interest of its own.
— Because Tribes in Klamath were acting as self-advocates, in competition for water rights
with the FOIA requestors in this case and others, Supreme Court found unanimously that
they could not be considered consultants to agency’s decision-making process, and
therefore the records were not “intra-agency” and could not be withheld under Exemption
5.
Conclusions to be drawn from Kiamath :
— First, threshold language, whether document is inter- or intra- agency, cannot be ignored
— Functional test has not been invalidated: a document shared with an outsider may still
qualify for privilege, but the Agency must show that outsider is truly acting in consultant
capacity, not as advocate for its own interests
— Under Exemption 5, the Agency can’t withhold documents shared with outside party
solely on the basis that there is a relationship. For example, we need to avoid tendency to
treat anything exchanged with states or Tribes as privileged because of some “co-
regulator” status or because they are our “partners” in an enterprise.
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— In fact, the case often cited as support for a “co-regulator” exemption, G.E. v. EPA , 18
F. Supp. 2d 138, 141 (D.Mass 1998) says something contrary: “there is no broadly
applicable state-federal ‘co-regulatory’ privilege, nor does Exemption 5 contemplate
one.” The Agency must at least be able to say that the state or Tribe is truly acting as a
consultant in our decision-making process, which was what enabled Q court to find
documents could be withheld
— Consultant relationship is the only functional status that the Supreme Court recognized
in Klamath and then only implicitly. The Court rejected DOl’s argument that special
“trust relationship” between DOl and tribe was a sufficient basis for protecting the shared
documents under Exemption 5.
Kiamath Q&A from Region 3 Office of Regional Counsel:
A recent decision by the United States Supreme Court affects how we can apply
Exemption 5 when we process a Freedom of Information Act (FOIA) request. FOIA Exemption
5 protects from disclosure “inter-agency or intra-agency memorandums or letters which would
not be available by law to a party other than an agency in litigation with the agency.”
In DOl v. Kiamath Water Users Protective Association , 121 S. Ct. 1060 (2001), the
Supreme Court held that “inter-agency” communication only occurs between Federal
agencies, and that “intra-agency” communication only occurs among employees of a Federal
agency. The Court left open the possibility that “intra-agency” communication could include
documents shared with those acting in a consultant capacity to the agency, that is, those not
representing their own interests.
In the past, we sometimes used Exemption 5 to prevent the release of documents obtained
from or provided to a state or tribe. Everyone who responds to FOIA requests must take this
change into account.
The Office of Regional Counsel has compiled the following “Q&As” to help you
understand the Kiamath decision and how it may aflèct our FOIA work.
Question: Does the Klamath decision mean that we must always release documents
obtained from or sent to a state or tribe?
Answer: No; only Exemption 5 is affected by the Kiamath decision. If another exemption is
applicable, it may be used. For instance, Exemption 7(A) of FOIA, which protects
records or information compiled for law enforcement purposes, can still be used if
it applies. Therefore, information that has been submitted by a state or tribe for
development of administrative enforcement cases can still be withheld. For
deliberative process-type records, there may be instances where the state or tribe is
acting in a consultant capacity to aid the Agency’s decision-making process, and in
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those circumstances, Exemption 5 may be used to withhold the records. However,
the State or Tribe must not be representing its own interests that are adverse to
another party’s interests.
Question: Am I allowed to withhold state documents that have been used to develop
judicial enforcement cases?
Answer: If you receive a FOIA request for documents that have been compiled for an
enforcement case in which both the United States and a state are involved, you
should consult with ORC and the Justice Department lawyer involved in the case
for guidance on how to proceed.
Question: If I receive documents or E mail communications from someone in another
Federal agency or from someone within the Agency or send documents or E
mail communications to such people and I think they are exempt from
disclosure under FOIA, should I stamp the documents orE mails with a FOJA
exemption notice in order to prevent an inadvertent release?
Answer: Determining whether or not a given document is exempt from disclosure can be
very subjective and a document that may be exempt from disclosure today may not
be exempt after the passage of time. Therefore, you should not merely stamp a
document “Exempt from Disclosure.” If you are absolutely certain that a
document or E Mail is exempt from disclosure and you also know which FOIA
exemption applies, then you can mark the exemption on the document. For
instance, communications between the Office of Regional Counsel and the various
program offices may be withheld because they may be “Attorney/Client Privileged”
or may contain “Attorney Work Product.” However, even these documents are
not automatically exempt. To be exempt, they must relate to actual or potential
litigation. Another approach you can use if you think a document may be exempt
from disclosure is to mark the document as “Potentially FOIA Exempt” or “PFE.”
This will alert anyone who later reviews the document for potential release that it
may be exempt from disclosure but will cause less confusion if the document is
later determined to be able to be released.
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V. TOUHY
EPA’s Touhy regulations are found at 40 C.F.R. Part 2, Subpart C. Touhy regulations
cover requests or subpoenas for testimony of EPA employees in cases where the United States is
not a party to the litigation. The Touhy regulations provide that such requests must be made in
writing, and there must be a finding by either the General Counsel or, as delegated, the Regional
Counsel, that such testimony is in the interests of the Agency before the employee witness will be
provided. The name Touhv comes from the U.S. Supreme Court case that first found such
regulations lawful. United States ex rel. Touhy v. Ragen , 340 U.S. 462 (1951). The regulations
provide that a subpoena duces tecum for documents is handled the same as a subpoena for
testimony, but where it is essentially a written request for records, that it will be handled as a
FOIA request.
In Appendix C, you will find sample Touhy letters.
The first letter (concerning the testimony of Thomas Ashmore) is EPA’s comprehensive
(negative) response to a request for voluntary deposition testimony in a State court case.
The second and third letters (concerning requests for the testimony of Kenneth Dugger
and Tyler Amon, respectively) address the situation where a deposition subpoena has been issued
in a State court case and the Agency informs the private party desiring the testimony that the
EPA employee will not testify and that the EPA employee cannot be forced to testify (Dugger is
under 9th Circuit case law; Amon is under 10th Circuit case law).
The fourth letter (addressed to Bradley Chambers) was a extremely comprehensive
refusal to testify issued in response to a motion by a private litigant in a federal district court to
compel EPA employee deposition testimony, which was quashed. This is the “everything but the
kitchen sink” of Touhy letters.
Items 5-8 are examples from Region 8. The fifth letter is an example of an ORC response
to a subpoena duces tecum. The sixth item is the Regional Counsel’s determination on a request
for deposition testimony. The seventh item is a Federal District Court Order on Region 8’s
Motion to Quash Subpoena. Finally, number 8 is the government’s Brief in Support of its
Motion to Quash.
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VT. Record Retention and Everything E! --E-FOIA. E—records, E-mail. E-readin rooms
The E-FO [ A amendments were passed in 1996 to account for the boom in electronic
information and use of computers by agencies The relevant provisions may be found at 5 U S C
§ 552(a)(3)
Electronic Records
An electronic record may not be a record for purposes of the Federal Records Act and the
Agency’s record retention and archiving policies But for FOIA purposes, a record is a record is
a record, regardless of the format in which it is kept The FOIA requester may choose in what
format to receive records if the records are in two or more formats, unless honoring this request
would be “practically difficult” An agency must make reasonable efforts to satisf a request for
records in a format different from how it already is kept
The duty to reasonably segregate exempt information applies to electronic records as well
as paper ones An agency should, if it is technically feasible, provide electronically redacted
documents that indicate where, how much, and pursuant to what exemption information has been
withheld
Electronic Search
A search for records must include a search for electronic records, not just paper records
The law and legislative history make clear that a search for electronic records does not involve the
creation of new records. An agency must make reasonable efforts to search for electronic records,
unless the search would significantly interfere with the agency’s computer system. A search of a
person’s computer hard drive or archived e-mail clearly would not “significantly interfere” with
the operation of the computer system The Agency has taken the position that a search of the
Agency’s backup tapes would significantly interfere with the operation of its system Of course, if
a court order requires usto preserve back-up tapes, we will comply.
An agency may not automatically refuse to search backup or other computer systems or
storage devices. The determination not to search must be made on a case-by-case basis and
should focus on whether the search would significantly interfere with the operati n of the
computer system itself. It is insufficient to state that a computer search would be expensive,
burdensome or time consuming. An agency may be required to develop a simple computer
program to extract the requested information from a larger computer database — because of the
duty to reasonably segregate
Multi-Tracking
The 1996 Amendments specifically allow for multi-tracking of FOIA requests Simple
requests may be pulled out of the general queue and dealt with more rapidly that more complex
and voluminous requests. EPA has not yet implemented that amendment
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Deadlines
The 1996 Amendments also changed the deadline for responding to a FOIA request from
10 days to 20 days The agency still may seek a 10-day extension, if the number of records is
voluminous or the search will involve several offices
E- Reading Room
The Amendments require agencies to develop websites and to establish electronic reading
rooms It is important to remember that the Agency’s website is not the electronic reading room
The Agency also is under an obligation to place frequently requested material in its reading room
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VI]. Confidentiality Issues
(OUTLINE OF CBI PROCESS and LA 14’ FOUND iN OGC’s E-LJIBRARY)
Exemption 4 of the Freedom of Information Act (“FO1A”), 5 U S C § 552(b)(4).
exempts “trade secrets and commercial or financial information obtained from a person and
privileged or confidential” (“CBI”)
Su ested Template for CBJ Determination
[ IF THE LETTER CONTAINS INFORJ 4ATION THAT IS CLAIMED TO BE CBI, USE THE
FOLLOW]NG BANNER
TJ]IS LETTER CONTAINS INFORMATION CLMNED AS CONFIDENTIAL
BUSINESS INFORMATION (“CBI”) AND SI]OIJLD BE HANDLED IN ACCORDANCE
WITH APPROPRIATE CBI PROCEDURES}
BY CERTIFIED MAIL RETURN RECEIPT RIEOUESTED
NAME
TITLE
NAME OF ENTITY
ADDRESS
CITY, STATE ZIP
Re [ Option I -- when connected to a FOIA appeal: XX-RIN-XXXXX-XX-A, Option 2 -
- when connected to a FOIA request not yet appealed: XX-RIN-XXXXX-XX,
Option 3 -- when connected to a rulemaking: IBRIEF DESCRIPTION OF
RULEMAKING;] Final Determination Concerning Confidentiality
Dear [ Mr.] IMs.1.
IINSERT NAME OF ENTITY] (“Company”) has asserted a claim of confidentiality for
[ DESCRIBE INFORMATION CLAIMED AS CONFIDENTIAL] (“information”) Ithat is
responsive to the above-referenced Freedom of Information Act (“FOIA”) request to the
United States Environmental Protection Agency (“EPA” or “Agency”)] OR Ithat the
United States Environmental Protection Agency (“EPA” or “Agency”) intends to make
public in support of EPA’s proposed rulemaking relating to XXXXI. On IINSERT DATE],
EPA requested that you substantiate your claim of confidentiality (“request for substantiation”).
On [ INSERT DATE], you submitted your response to EPA’s request (“substantiation”)
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I have carefully considered your claim For the reasons stated below,] find that Iparl of]
the information claimed as confidential is (not] entitled to confidential treatment
DISCUSSION
Exemption 4 of the FO1A exempts from disclosure “trade secrets and commercial or
financial information obtained from a person and privileged or confidential” 5 U S C
§ 552(b)(4) In order for information to meet the requirements of Exemption 4, EPA must find
that the information is either (1) a trade secret. or (2) commercial or financial information
obtained from a person and privileged or confidential (commonly referred to as “Confidential
Business information” (“CBI”))
Initial Considerations
EPA s regulat ions at 40 C F.R § 2 208 state that. in order for business information to be
entitled to confidential treatment, the Agency must have determined that, inter alia
(I) The business has asserted a claim of confidentiality and that claim has not expired,
been waived, or been withdrawn.
(2) The business has shown that it has taken reasonable measures to protect the
confidentiality of the information, and that it intends to continue to take such
measures,
(3) The information is not, and has not been, reasonably obtainable by a third party
without the business’ consent through legitimate means, and
(4) No statute specifically requires disclosure of the information
in your substantiation, the Company stated that it sought confidential treatment for the
information (indefinitely] Ifor a period of XX years], that no interceding events have negated its
previous claim, and that the information has not become stale in its analysis of this matter, EPA
has not found any reason to doubt these assertions by the Company IThe Company also stated
that EPA has previously granted confidenlial treatment for the same type of information in
response to prior requests.] As a result, I will determine whether or not the information meets
the definition of trade secret or CB1
Trade Secret
IOPTION I-- No claim of Trade Secret
The definition of “trade secret” under the FOIA is limited to “a secret, commercially
valuable plan, formula, process, or device that is used for the making, preparing, compounding, or
processing of trade commodities and that can be said to be the end product of either innovation or
substantial effort” Public Citizen Health Research Group v FDA , 704 F 2d 1280, 1288 (D.C
Cir 1983) This definition requires that there be a “direct relationship” between the information
and the production process. j.4 You have neither asserted a claim that the information is a trade
secret, nor have you explained how the Agency’s release of this information would identi& a plan,
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formula, process, or device The Company has thus failed to demonstrate how disclosure of the
information would identify or reveal a trade secrel Consequently, I find that the information does
not constitute a trade secret]
IOPT]ON 2—trade secret claimed but not demonstrated
The definition of “trade secret” under the FO1A is limited to “a secret, commercially
valuable plan. formula, process, or device that is used for the making, preparing, compounding, or
processing of trade commodities and that can be said to be the end product of either innovation or
substantial effort.” Public Citizen Health Research Group v FDA , 704 F 2d 1280, 1288 (D C
Cir 1983) This definition requires that there be a “direct relationship” between the information
and the production process ] .
You claim that the information conslilules a trade secret because ILNSERT ANY
D FORMAT]ON SUBMITTED BY TBE ENTITY SUPPORTII G TI]E II FORJ 1ATJON
AS A TRADE SECRET] However, for the purpose of assessing whether the information is a
trade secret, you failed to explain how EPKs release of the information would identify
ISPECIFY 130W] a plan, formula, process, or device that is used for the making, preparing,
compounding, or processing of trade commodities and that can be said to be the end product of
either innovation or substantial effort ]t is not enough to state simply ILNSERT TIlE
ENTITY’S ARGUMENT, FOR EXAMPLE, TBAT CERTAIT IINFORMATJON CAN BE
USED TO REVEAL ITS PROCESS] without a specific explanation of how this would be
achieved and without discussing how disclosure of the information identifies or reveals a trade
secret You have not demonstrated how the Company’s process could be ascertained if the
information were disclosed The Agency has no other indication that the information meets the
definition of a trade secret Without the Company specifically addressing these issues, it is
impossible for EPA to assess whether there is a direct relationship between the claimed trade
secret and your production process
You have not demonstrated that the information would allow the identification of a secret,
commercially valuable plan, formula, process, or device used for the making, preparing,
compounding, or processing of trade commodities and that can be said to be the end product of
either innovation or substantial effort. Consequently, I find that the information is not a trade
secret]
IOPTION 3—Yes, Trade Secret:
The definition of “trade secret” under the FOIA is limited to “a secret, commercially
valuable plan, formula, process, or device that is used for the making, preparing, compounding, or
processing of trade commodities and that can be said to be the end product of either innovation or
substantial effort” Public Citizen Health Research Group v FDA , 704 F 2d 1280, 1288 (D C.
Cir. 1983) This definition requires that there be a “direct relationship” between the trade secret
and the production process. j .
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In your substantiation letter, you provided information that demonstrates a direct
relationship between the requested information and the process of producing XXXX Ithe
Company’s product] The Company specifically described the unique property and value thai
the information brings to the product You also explained that disclosing the information would
reveal the process of creating these unique properties in the product in its analysis of this matler,
EPA has not found an ’ reason to doubt these assertions by the Company The Company has
demonstrated that disclosing the requested information would allow the identification of a secret
and commercially valuable process used for the making preparing; compounding, or processing
of trade commodities ] conclude the information qualifies as a trade secret and is therefore
exempt from disclosure under Exemption 4 of the FO1A]
Confidential Business Information (“CBI”)
if the information Idoes not reveal]Ireveals] a trade secret, it may Islillilalso] be exempt
from release under Exemption 4 of the FO]A if it is CB1, L ., “commercial or financial
information obtained from a person and pnvileged or confidential” 5 U S C § 552(b)(4) The
terms “commercial” or “financial,” for purposes of Exemption 4 of the FOIA, “should be given
their ordinary meanings” Public Citizen , 704 F 2d at ] 290 (citing Washin ion Post Co v
690 F 2d 252, 266 (D C Cir 1982)) OPTION: if the information is business information:
The information at issue relates to a business, thereby meeting the ordinary definition of
“commercial”] OPTION: if the information is purely financial information, change to:
The information at issue relates to your fiscal status, thereby meeting the ordinary
definition of “financial.”] Since the Company meets the definition of the term “person,” as
defined by EPAs regulations at 40 C F R § 2 20 1(a), the information was “obtained from a
person” as required by Exemption 4 of the FOIA
Finally, in order to quaIi y as CB1, the information must be “privileged or confidential”
You have claimed this information to be confidential, but you have not claimed this information to
be privileged The Agency has no indication that the information is subject to a common-law
privilege and will therefore limit its discussion to the issue of confidentiality Information
submitted to the Government on a voluntary basis “is ‘confidential’ for the purpose of Exemption
4 if it is of a kind that would customarily not be released to the public by the person from whom it
was obtained” Critical Mass Energy Project v Nuclear Regulatory Commission , 975 F.2d 871,
879 (D.C Cir 1992) (en banc), cert denied , 507 U.S 984 (1993) Information that is required
to be submitted to the Government is confidential if its “disclosure would be likely either ‘(1) to
impair the Government’s ability to obtain necessary information in the future, or (2) to cause
substantial harm to the competitive position of the person from whom the information was
obtained “ Critical Mass , 975 F 2d at 878 (quoting National Parks and Conservation Association
v Morton , 498 F 2d 765, 770 (D C Cir 1974) (footnote omitted).
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IOPTION—Voluniarily Submitted
Voluntary Submission
in your substantiation, you claimed that the information was submitted voluntarily to the
Agency Under EPA s regulations at 40 C F R § 2 201(i); voluntarily submitted information
consists of business information the submission of which EPA had no statutory or contractual
authority to require, as well as business information the submission of which was not prescribed
by statute or regulation as a condition of obtaining some benefit (or avoiding some disadvantage)
under a regulatory program of general applicability For a submission to be mandatory, a law
must affirmatively require the submission of information or give the Agency authority to require
the submission of information Only actual legal authority — not the request ers intent or the
subminer’s belief— is to be considered in determining whether a submission is required or
voluntary Center for Auto Safety v NHTSA , 244 F 3d 144, 149 (D C Cir 2001) The Agency
must not merely possess authority to require submission, it must also exercise its authority The
decision to exercise this authority is entirely within the discretion of the Agency Critical Mass .
975 F 2d at 880, Parker v Bureau ofLand Mana2ement . 14] F Supp 2d 71, 78 n 6 (D D C
2001)
EITHER:
in this case, the Agency did not Iha ’e any] lexercise its] authority to require the
submission of the information Nor was the submission of the information a condition of
obtaining some benefit or avoiding some disadvantage under an Agency regulatory program
Therefore, I conclude that the Company submitted the information to the Agency voluntarily
IGO TO “INOT] CUSTOMARILY DISCLOSED”]
OR
in this case, the Agency had the authority to require the submission of the information and
exercised it. IThe submission of the information was a condition of obtaining some benefit
or avoiding some disadvantage under an Agency regulatory program.] Therefore, I
conclude that the information was a required submission and was not voluntary IGO TO
“REQUIRED SUBMI SSION”]
INoti Customarily Disclosed
Information that is voluntarily submitted to the Agency must be withheld under Exemption
4 of the FO1A if “it is of a kind that would customarily not be released to the public” Critical
Mass , 975 F.2d at 879. The Agency’s review must be objective and “must meet the burden of
proving the provider’s custom” j Courts have not articulated a clear standard for whether
information has been customarily disclosed to the public, but they do offer guidance. Information
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thai has been previously disclosed may nonetheless receive Exemption 4 prolection as long as the
submitter has not made the kind of information being claimed as CBI available to the general
public Center for Auto Safety , 244 F 3d at 151-53
The Company claims that the information is neither customarily disclosed nor available to
the general public In its analysis of this matter, EPA has Inot found any reason to doubt these
assertions by the Company] OR found that the information is customarily disclosed by the
Company because ISTATE REASON]] Therefore, I find that the Company has Inot]
customarily disclosed the information
GO D1] ECTLY TO CONCLUSION OPTION #1 OR #2]
IOPTJON—Required Submission:
Required Submission
For a submission to be considered required. an agency must possess the authority to
require submission of information to the agency and must exercise this authority National Parks ,
498 F 2d at 770. Cenier for Auto Safety v NHTSA , 244 F 3d 144, 149 (D C Cir 200]), Parker
v Bureau of Land Management , 141 F Supp 2d 71, 77-79, 78 n 6 (D D C 2001), see also,
Critical Mass , 975 F 2d at 880 The information was collected pursuant to EPAs authority under
ID SERT OTE TO STATUTE or REGULATION or D FORMAL MANDATE)
Because EPA not only has the authority to require submission of the information, but also
has exercised its authority, the Company’s submission of the information was required The
Agency must now deiermine whether the information is conlidential
IOPTION-Impairment Prong
As discussed above, the test for confidentiality of commercial or financial information that
is required to be submitted to the Government is governed by National Parks , 498 F.2d at 770
Under the National Parks test, commercial or financial information that is required to be
submitted to the Government is “confidential” if “disclosure of the information is likely to have
either of the following effects. (1) to impair the Government’s ability to obtain necessary
information in the future, or (2) to cause substantial harm to the competitive position of the
person from whom the information was obtained” I at 770 (footnote omitted)
in addressing impairment to the Government’s ability to obtain necessary information that
is required to be submitted in the future, the inquiry focuses on the likelihood that the
Government will receive accurate information from the submitter. In other words, “ [ i]f the
government can enforce the disclosure obligation, and if the resultant disclosure is likely to be
accurate, that may be sufficient to prevent any impairment” Washington Post , 690 F.2d at 268.
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IDISCUSS WHETHER THE SUBMITTED U FORMAT]ON IS LIKELY TO BE
ACCURATE. DOES THE STATUTE or REGULATION or D FORMAL MANDATE
HAVE AN ENFORCEMENT MECHANISM THAT WOULD EXPLICITLY OR
IMPLICITLY REQUIBE ACCURATE RESPONSES?)
IF THE IMPAIRMENT PRONG APPLIES, GO DIRECTLY TO CONCLUSION ,
OPTION #1. IF THE IMPAIRMENT PRONG DOES NOT APPLY, OMIT AND GO TO
COMPETITIVE HARM IMMEDIATELY BELOW)
Competitive Harm
As set forth in EPAs regulations al 40 C F R § 2 208, required business information is
entitled to confidential treatment if
The business has satisfactorily shown thai disclosure of the information is
likely to cause substantial harm to the businesss competitive position
To med the competitive harm test, it is not enough to show that the release of the
information would likely cause any potential for competitive harm Rather, you must demonstrate
a likelihood of subsianiial compelilive harm in order to overcome FOIA’s strong presumption of
disclosure CNA Financial Corp v Donovan , 830 F 2d 1132, 1152 (DC Cir 1987), cert
denied , 485 U.S 977 (1988)
As set forth in the request for substantiation, in order to support a claim for confidential
treatment, you must discuss with specificity why release of the information is likely to cause
substantial harm to your competitive position Further, you must explain the nature of these
harmful effects, why they should be viewed as substantial, and the causal relationship between
disclosure and such harmful effects in addition, you must explain how your competitors could
make use of this information to your detriment CHOOSE EITHER: “OPTION -- NO CBJ”
OR “OPTION -- YES CBI”]
IOPTION-NO CBJ
After careful consideration of your arguments, I have determined that you have not
demonstrated how disclosure of the information is likely to cause substantial harm to your
competitive position IDISCUSS THE FAILURE TO SUBSTANTATE -e &: The
arguments you submitted are very general in nature and are merely conclusory allegations
restating the requirements in the request for substantiation. Although your substantiation
asserts that release of the information claimed as confidential would likely result in
substantial competitive harm to the Company, you do not specifically explain how this
would occur. You claim generally that release of this information would permit
competitors to gain a competitive advantage, but do not state how this could occur.1
In sum, because you have failed to explain specifically how disclosure of the information
in your submission would likely cause substantial competitive harm to the Company, you have
failed to support your claim of competitive harm Accordingly, I find that EPA’s release of this
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information is not likely to cause substantial harm to the Companys competitive position]
GO DIRECTLY TO CONCLUSION , OPTION 2.
OPTION -YES CBI
IINSERT SUMMARY OF COMPANY’S ARGUMENTS]
After careful consideration of your argumenlsJ find thai the Company has demonstrated
that significant competitive harm would likely result from publicly releasing the information
Conferring a competitive advantage is not the desired purpose of the FO1A Worthington
Compressors. inc v Costle , 662 F 2d 45, 51-53 (D C Cir 1981) Exemption 4 of the FO1A
protects those who are required to submit commercial or financial information to a Government
agency from the competitive disadvantages that may result from public disclosure i The
Company has adequately shown that the information is highly sensitive to its commercial
operations and that the release of the information would place it at a competitive disadvantage,
thereby causing substantial harm to its competitive position 1, therefore, find that release of the
requested information would likely result in unacceptable present and future practical and financial
benefits to your competitors, and that the Company would suffer substantial competitive injury as
a result
Pursuant to EPAs regulations at 40 C F R § 2 204(f)(6) and 2 204(0(9), the
appropriate EPA program office has been consulted about whether your claim of confidentiality is
valid The EPA program office supports the Company’s assertions that it faces actual
competition and would likely suffer significant competitive injury if the information were not kept
confidential [ In the past. EPA has also roulinely held that the information is CBI and must
be withheld under Exemption 4 of the FO1A.]
in sum, because you have explained specifically how disclosure of the information would
likely cause substantial competitive harm to the Company, you have supported your claim, and the
information is confidential under Exemption 4 of the FOIA]
PROCEED TO CONCLUSION , OPTION #1
CONCLUSION
IOPTION #1
I find that the information is entitled to confidential treatment. Therefore, this information
must be withheld under Exemption 4 of the FOIA.]
IOPTION #2
I find that the information claimed as conlidential is not a trade secret or CB1 and,
therefore, is not within the scope of Exemption 4 of the FOIA Pursuant to EPA’s regulations at
40 C.F R § 2 205(f), this constitutes the final EPA determination concerning your business
confidentiality claim This determination may be subject to judicial review under 5 U S C
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§ 701 et seq IF A FOJA REQUEST OR APPEAL: in response to the above-refeienced
FOIA Irequeslj lappeall; EPA will release the data to the FOIA requeslor on the] lIT
RULEMAKING: EPA may make the information determined to be releasable available to the
public on the] tenth working day INOTE: 3:1st calendar day for TSCA, FIFRA, and FFDCA
information] afler the date of your receipt of this deiermination, unless the EPA Office of
General Counsel has first been notified of your commencement of an action in Federal court (1) to
obtain judicial ieview of this determination and (2) to obtain preliminary injunctive relief against
disclosure Even if you have commenced an action in Federal court, EPA may make this
information available to the public if the court refuses to issue a preliminary injunction or upholds
this determination. In addition, EPA may make this information available to the public, after
reasonable notice to you, whenever it appears to the Agency that you are not taking appropriate
measures to obtain a speedy resolution of the aclion]
Should you have any questions concerning this matter, please call
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Appendices
ADpendix A
SHORT GUIDE TO FOIA
Introduction
Freedom of Information Act (“FOJA”) — 5 U.s.c. §552
N Enacted 1966, supplanting Section 3 of the Administrative Procedure Act (1946); FOIA
was amended in 1974, 1976, 1986, and 1996 (the “E-FOL&” amendments). Before FOLA,
no real mechanism for public to demand release of agency documents outside litigation.
and our Federal Agency predecessors presumed that documents were not to be released
FOIA created presumption that public was entitled to receive agency records, unless they
vere specifically exempted
• Section 552(a)(1) requires automatic disclosure in the Federal Register of descriptions of
agency organization, functions, procedures, substantive rules and policy (similar to APA
Section 3)
I Section 552(a)(2) requires these records to be made routinely available for public
inspection and copying: Final opinions in case adjudications, policy statements, certain
administrative staff manuals (similar to APA Section 3) and records that are subject to
frequent requests (E-FOIA). Records created after 1996 must be made available
electronically.
Section 552(a)(3) states that any records not covered by (a)(1) or (a)(2) and not exempted
by (b) or excluded by (c) are subject to disclosure upon request from any person. (APA
Section 3 had provided that “matters of official record shall ... be made available to
persons properly and directly concerned except information held confidentialfor good
cause found.”)
Procedural Requirements
• Entities subject to FOJ.A
> Executive Branch Agencies
Agency Records
> Definitions
FOIA
Federal Records Act
> “Agency Records” vs. “Personal Records”
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I Searching for Records
> Adequacy of Search
> “Reasonably Segregable” Obligation
> Referrals and Consultations
I Decisions routinely admonish that FOIA exemptions must be narrowly construed. E.g.,
Soucie v. David . 448 F. 2d 1067 (D.C. Cir. 1971)
I Congressional Requests Under FOJA-THE Congress vs. Individual Congressman
I Discretionary Disclosure and Waiver
• Fees and Fee Waivers
> Fee Categories
Commercial
Educational
Representative of the News Media
Other
> Public Interest Fee Waiver—must satisf ’ criteria
> Calculating Fees—search, review, copying
• E-FOJA Amendments
> Deadlines —Now 20 business days for response
Electronic Records—E-format if requested, E-reading rooms
Miscellaneous Exemptions
I Ex. I — National Security—Only Classified documents under the Executive Order.
I Ex. 2 — Records “related solely to the internal personnel rules and practices of an
agency.”
> Low 2 - Trivia] Matters
> High 2 — Substantial Internal Matters that Would Risk Circumvention of
Legal Requirements if Released. After 1986 Amendments, Much of High-
2 Matters Now Covered by 7(e)
I Ex. 3 — “...speciflcally exempted from disclosure by statute (other than section 552(b) of
this title)”
No Discretion Allowed
> Establishes Either Particular Criteria for Withholding
or Particular Types of Matters to be Withheld
-------
• Ex. 8 — Records of an “agency responsible for the regulation or supervision of financial
institutions”
• Ex. 9 — “Geological and geophysical information and data, including maps, concerning
wells.” Plain language of statute would allow use for water wells, although legislative
history indicates intent was to cover oil and gas wells.
Exemption 4: Business Confidentiality
• Ex. 4 — Applies to “Trade Secrets and Commercial or Financial Information Obtained
from a Person and Privileged or Confidential”
• The Process Involved in Dealing With Information Claimed as CBI
> ‘Claim It or Waive It’
> Initial Determination
> Request for Substantiation
> Program Office Comment on the Company’s Substantiation
> Final CBI Determinations
The Responsible Office
Drafting Final Determinations
Denial of CBI Claims
Upholding CBI Claims
I Trade Secrets
Trade Secrets Act, 18 U S.C. 1905
• Confidential Business Information
> “Commercial or Financial Information”
“Obtained From a Person”
> “Confidential”
• Confidentiality
“Required” Submissions
Required Submissions — Why & Defined
Test for Required Submissions
> “Voluntary” Submissions
Voluntary Submissions — Why & Defined
Test for Voluntary Submissions
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Exemption 5: Privileged Information
U Most commonly used as basis for withholding records; it protects “inter-agency or intra-
agency” records normally privileged in civil discovery
I Any Exemption 5 analysis involves answering two, separate questions First, is the record
an intra- or inter-agency document? Secondly, Does its contents qualify for one of the
well-settled privileges?
> Most commonly invoked privileges:
> Deliberative process privilege
> Attorney work product,
> Attorney-Client communication
• Threshold question Is the record an inter- or untra-agency document? Inter-agency
means between or among Federal agencies. Intra-agency means within a Federal agency
or between an agency and its consultant.
> If outsider is functioning in the same manner as an agency employee, e g,
contractor who is contributing to agency’s decision-making process in
some way, then record may still qualify as an internal record. If a
document has been shared, or furnished by, an outside party not acting in
the role of a consultant, the exemption does not apply.
I Privileges
Deliberative process Privilege
> The deliberative process privilege is the most commonly invoked
privilege. It is designed to protect integrity of decision-making
process itself; not particular documents
> Just because there may be sensitivities surrounding a document,
doesn’t mean its release will inhibit deliberative process Protecting
agency from embarrassment not the same as protecting the integrity
of its decision-making process
> Deliberative process privilege is also designed to avoid confusing
public with information that may not have matured into final
decisions, or leaving the impression that the basis for an agency
decision is something other than actual basis relied upon by agency
for that decision
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> In fact, courts have been vigilant about enforcing this obligation, raising the
issue even where the plaintiff has not. e.g., Trans-Pacific Policing
Agreement v U.S Customs Service , 177 F. 3d 1022 (DC. Cir. 1999).
> Segregability obligation evokes a key principal of FOIA, which is that
exemptions protect certain types of information from disclosure, not entire
documents
C
Exemption 7: Law Enforcement Records
• Threshold Question: Are these law enforcement records?
> May include civil, criminal, administrative and regulatory proceedings, y
v FCC . 867 F. Supp. 11, (D.D.C. 1994); v. EPA , 19 F. Supp. 2d 138
(D.Mass. 1998)
> May apply to records compiled to enforce state law, unless agency lacks
the authority to pursue a particular law enforcement matter, Wojtczak v.
DOJ . 548 F. Supp 143 (E.D.Pa. 1982)
• Ex. 7(A) — Could this release reasonably be expected to interfere with an enforcement
proceeding?
> Is a law enforcement proceeding pending/prospective? Dickerson v. DOJ .
992 F.2d 1426 (6th Cir 1993)
> Could the release reasonably be expected to cause some articulable harm?
Mannav PQL 51 F.3d 1158 (3rd Cir 1995), Scheerv. DQL 35 F.Supp
2nd 9, (D.D.C. 1999),
• Ex. 7(B) — Would disclosure deprive a person of the right to a fair or an impartial
adjudication’ Washington Post v DOJ , 863 F.2d 96 (D.C. Cir 1988)
• Ex 7(D) — Was this information obtained from a source that maintained confidentiality 9
Was there an express or implied promise of confidentiality 7
> When ever law enforcement officials have given an express promise of
confidentiality, Rosenfeld v. DOJ , 57 F.3d 803 (9th Cir. 1995)
> When ever it is reasonable to infer that such a promise was implied by the
circumstances, PQI v. Landano , 508 U S. 165 (1993)
The nature of the crime being investigated that resulted in the
interview of the source;
The source’s relation to the crime; and
The potential for retaliation against the source.
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a
> The types of document properly withheld include drafts, pre-
decisional records that outline policy alternatives or memorialize
discussions, drafts of rules, policy statements, guidance documents,
etc.
> These are types of records which, if routinely released, would tend
to inhibit agency from engaging in give and take that precede
decision-making, or could lead public into believing that agency is
pursuing a certain course that it is not, in fact, pursuing.
>- Strictly factual material in those records is not exempt unless
“inextricably intertwined” with the deliberative material.
> Attorney Work-product Privilege
‘ Rather broad exemption 5 protection for any record prepared by, or
at the direction of, an attorney, but only if prepared in anticipation
of litigation
> “Litigation” includes civil, criminal and administrative proceedings
but proceedings need not be initiated for privilege to attach, as long
as litigation is reasonably foreseeable.
Privilege protects factual materials, as well as opinions, analyses
and strategic considerations of the attorney
> Attorney-Client Privilege
> Privilege protects advice given to client (in this case, EPA) and
factual matter provided by the client that informs that advice
Unlike the attorney work-product privilege, the attorney-client
privilege applies even though no litigation is anticipated.
Often overlaps with deliberative process privilege, because
attorneys counsel on legal bases for alternative agency policy
decisions.
> Often a candidate for discretionary disclosure
•Reasonable Segregation Obligation
FOLA requires the release of all non-exempt material in an otherwise
exempt document. 5 U.S.C. § 552(b).
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• Ex. 7(E) — What type of technique or procedure is this? What is the risk of
circumvention?
> Covers techniques and procedures for investigations or prosecutions, but
only if they are not well known to the public, Public Employees for
Environmental Responsibilities v. EPA . 978 F. Supp. 955 (DColo. 1997)
> Agency must make a determination whether the disclosure could
reasonably be expected to risk circumvention of the law, Jordon v. DOJ .
591 F.2d 753, (D.C. Cu. 1978); Crooker v. EPA , 670 F.2d
1051 (D.C. Cir. 1981)
I Ex. 7(F) — Is it reasonable to expect this release to endanger the life or safety of an
individual? Jimenez v. Effl. 938 F. Supp 21 (D.D.C., 1996) (Protects names and
identi1 jing information furnished by confidential source and names of law enforcement
personnel.)
Exemptions 6 & 7(c): Personal Privacy
• Personal Privacy
> Personal Information — Not necessarily in Privacy Act Systems
> Privacy Interest — Why would it be an invasion?
> Reporters Committee . 489 U.s 749 (1989) — Application of balancing
test between privacy interest and public interest generally. Identity of
requestor is irrelevant
• Ex. 6 — Personnel, Medical, Other Records
> Types of Information Protected — Scope of Exemption
> Balancing Test — “Clearly Unwarranted Invasion of Personal Privacy”
• Ex 7(c)
Types of Information Protected — Scope of Exemption
Balancing Test — “Unwarranted Invasion of Personal Privacy”
How and Why Ex. 7(c) is More Protective of Personal Privacy than Ex 6
I Privacy Act
‘ Privacy Act vs Personal Information
> Disclosure from Systems of Records
> Collection and Maintenance of Information
> Civil Remedies and Criminal Penalties
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Litigation Considerations
• Agency Affidavit — Most Important Document in Defense of FOIA suit. Affidavit Must:
Explain Agency Administrative Process
> Vaughn Index Vaughn v. Rosen . 484 F.2d 820 (D.C. Cir. 1973) — For
Each Record, Must Include:
Title
Date
Addressor/Addressee
Subject Matter
Justi1 r Claims of FOIA Exemption
> Vaughn Index and Affidavit Required Only in Litigation, Not in the
Administrative Process
• in Litigation, All Applicable Exemptions Must be Asserted or are Waived, Maydak v.
U.S. DOJ . 218 F. 3d 760 (D.C. Cir. 2000), cert. denied, Department of Justice v.
Mavdak , 121 S.Ct. 2591, 69 USLW 3657, 69 USLW 3803, 69 USLW 3807 (U.S. Jun 29,
2001) (NO. 00-1507)
• Attorney’s Fees Only if Plaintiff “Substantially Prevails”
> Plaintiff Must Receive Judicial Outcome to Receive Fees, Buckhannon Bd
and Care Home. Inc. v. West Virginia Dep’t of Health and Human
Resources . 121 S Ct. 1835, 149 L. Ed. 2d 855 (May 29, 2001)
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Apnendix B
Personal Privacy
FOIA Request
.1
Jdentify Privacy Interest
No Privacy interest
Privacy Interest
Identify Public Interest
Determine Record Type
/\
Law Enforcement
/
Ex. 7(c) Balancing
Other
6 Balancing
Disclose Information
Public Interest
1
No Public interest
Withhold information
Whether disclosure “could
reasonably be expected to constitute
an unwarranted invasion of
personal privacy.”
Very low threshold for
withholding.
W Disclosure would be warranted
only if public interest was
exceptional.
Whether disclosure of information
of individuals in “personnel,
medical, and similar files would
constitute a clearly unwarranted
invasion of personal privacy.”
Type of file does not matter; that
a file contains personal information
is what maters.
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Personal Privacy
Personal information is information that can be linked to a specific person The law of
privacy recognizes that people have a reasonable expectation of control over their personal
information, release of which to the public at large could be embarrassing or injurious to their
reputation and social or economic standing
The FOIA recognizes two exemptions, 6 and 7 (c), that protect personal privacy by
imposing a balancing lest between the privacy interest v. the public interest If the public
interest in the information outweighs the privacy interest at stake, then the information cannot be
withheld
Privacy interest
The privacy interest is a function of a person’s expectation of privacy There can be no
invasion of privacy if no expectation of privacy exists Federal employees do not have a
reasonable expectation of privacy in the information about their Federal jobs the employee’s
name, present and past position titles, present and past position pay grades, present and past
annual salary rates (including performance awards, bonuses, other awards), present and past duty
station, and present and past job descriptions, 5 C F.R §293.311.
A person does not have an expectation of privacy in information that already is in the
public domain That said, well-known people can still have an expectation of privacy in some
information A low-level government employee and a private citizen would have a greater
expectation of privacy and, therefore, more of a privacy interest in his personal information than
an agency’s secretary or senior manager
information that may have been in the public domain at one time but no longer is easily
available may have become “practically obscured.” A person may have a reasonable expectation
of privacy in information that may have become “practically obscured” Examples may include
old law enforcement files about a previously high-profile case that has long since faded from the
public consciousness The subject could have been written about extensively at the time and
could have been common knowledge, but through the passage of time, the information is no
longer easily available or commonly known
A person may have a reasonable expectation of privacy in personal identifying
information name, home address, home telephone number, e-mail address, date of birth and age,
and, of course, Social Security Number. Whether a person has a reasonable expectation of
privacy in personal identifying information will largely depend on how the information was
obtained and whether an assurance of confidentiality was made at the time the information was
collected
This situation often comes up when a requester asks for a mailing list or the identities of
people who submitted comments to a rule making. See e.g., Alliance for the Wild Rockies v.
Dep’t of Interior , 53 F Supp. 2d 32 (DD.C. 1999) (rule making notice stated comment would be
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publicly available, therefore, commentator would not have an expectation of privacy). if the
person was given an assurance that the information being submitted to the Agency would be kept
confidential, then it’s safe to assume the person has an expectation of privacy. Finally business
entities and other organizations do not have an expectation of privacy, therefore, individuals
acting on their behalf would not have a reasonable expectation of privacy in their work contact
information
Public Interest
in Reporters Committee for Freedom of the Press v Dep’t of Justice , 489 U.S. 749
(1989), the Supreme Court stated that the only public interest to be considered in balancing the
individual’s privacy interest against the public interest is whether the (personal) information being
requested would reveal something about the operations of government. The FO1A’s “core
purpose,” the Court said, is to shed light on the operations and activities of government The
Court stated that the government’s record files are not warehouses of information designed
merely for public consumption
Only personal information that reveals the operations or activities of government — in
other words, information that furthers the FO1A’s “core purpose” — should be released to the
public The FO1A, previously, had been interpreted as allowing an inquiry into a specific
requester’s motive or purpose in requesting personal information But now, the Agency must
weigh the privacy interests against the public interest in the documents as they reveal something
about the government’s operations or activities
There is a public interest charges of government malfeasance and if there is a nexus
between the government corruption and the personal information being sought, the documents
may be released See e.g., Lissner v. U.S. Customs Service , 241 F.3d 1220 ( 9 th Cir. 2001)
(information about police officers might reveal activities of government). If the information is
about a (high-ranking) government employee involved in malfeasance the more likely the
information will satisfy the “core purpose” test
Exemption 6
Protects from disclosure personal information found in personnel, medical, or other files
Courts have construed “other files” broadly; look at the type of information at issue, not the kind
of file from which it came. Must release personal information unless release “would constitute a
clearly unwarranted invasion of personal privacy.”
Information that is commonly withheld under this exemption include names, home
addresses, personal contact information, and identifying information A common subject of
litigation is mailing lists and compilations of other contact information The general rule is: since
the public interest to be weighed is in government operations, an agency must not focus on how
the requester plans to use the information for its secondary purposes, e.g., request for a mailing
list of people with whom the government does business so the requester may solicit business from
these people. The relevant fact seems to be whether the information could be used to reveal
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something about government activities Court often reach a So/omonic decision — release a
person’s name and hometown, but not the address or phone number These requests are highly
fact specific
Exemption 7 (c)
Protects from disclosure personal information found in law enforcement files The test is
whether release “could reasonably be expected to constitute an unwarranted invasion of personal
privacy”
Ex 7 (c) is more protective of personal privacy than Exemption 6 — personal information
in law enforcement files is protected from release if it could be expected to cause an
unwarranted invasion of privacy, compared to would cause a clearly unwarranted invasion of
privacy The reason for this difference is the belief that information contained in law enforcement
files carry a stigma that personnel and other files do not.
Ex. 7 (c) protects not only the subjects of investigations, but also people merely
mentioned in law enforcement files This exemption can protect from disclosure information about
witnesses and sources who were not granted confidentiality If a response would reveal the fact
that someone is mentioned in law enforcement files, the agency should provide a Glomar response
— the agency can neither confirm nor deny the existence of records about a particular individual
Temporal Limits
There is no temporal limitation on the privacy exemptions. Just because a person no
longer works for the Federal government does not mean his/her entire personnel file becomes
publicly available. Privacy rights under Exemption 7 (c) are not extinguished at the conclusion of
a law enforcement proceeding If anything, a person’s expectation of privacy grows over time.
However, after death there is generally no privacy interest to protect. A requester seeking access
to a decedent’s personal information should provide proof that the person is in fact dead
Exceptions have been found when the surviving family’s privacy interests would be affected by
the release
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Appendix C
TOUHY samples
1. Thomas Ashmore testimony
Re: Request for EPA Employee Testimony in HUB Realty Golden. Inc. v. Graves
Mechanical. Inc Kirksev & Partners Architects. Texas Energy Engineers. Inc..
and ccrd partners . Jefferson County District Court, Colorado, Case No. 00CV692
Dear Mr. Knapp:
I am responding to your letter to Maria Diamond, Associate General Counsel, U.S.
Environmental Protection Agency (“EPA” or “Agency”), dated July 31, 2001, on behalf of your
client, ccrd partners (“ccrd”). Your client is a defendant in the above-referenced litigation to
which EPA is not a party. In your letter you request the voluntary deposition testimony in this
lawsuit of Thomas Ashmore, an engineer in the Architecture, Engineering, and Real Estate
Branch of the Facilities Management and Services Division (“FMSD”) within the Office of
Administration of EPA’s Office of Administration and Resources Management (“OARM”). You
enclose drafts of a notice of deposition of Mr. Ashmore on September 26, 2001, a subpoena
duces lecum, and a waiver and acceptance of service.
In your letter you state that you seek to have the Agency produce Mr. Ashmore to testi1 ’
regarding the heating, ventilation, and air conditioning (“HVAC”) system project for EPA’s
Region VIII laboratory. Specifically, you indicate that “the deposition is intended to determine
what recollection Mr. Ashmore may have concerning statements made by various project
participants in 1996, including the October 30, 1996, meeting in Washington, concerning the
respective roles and responsibilities of Graves Mechanical and ccrd for design of the HVAC
system.” You also request that Mr. Ashmore produce “any notes or other documents retained by
him which may reflect his impressions concerning statements or representations made in his
presence concerning the roles and responsibilities of Graves Mechanical and ccrd in the project.”
Mr. Ashmore has no notes or other documents that are responsive to this request
EPA regulations at 40 C.F.R. § 2.402(b) prohibit Agency employees from providing
testimony “concerning information acquired in the course of performing official duties or because
of the employee’s official relationship with EPA,” unless, inter alia, authorized by the General
Counsel or his designee under 40 C.F.R. § 2.403. The purpose of these regulations is “to ensure
that employees’ official time is used only for official purposes, to maintain the impartiality of EPA
among private litigants, to ensure that public finds are not used for private purposes and to
establish procedures for approving testimony. . . when clearly in the interests of EPA.” 40 C.F.R.
§ 2.40 1(c). According to 40 C.F.R. § 2.403, when voluntary testimony by an EPA employee is
requested under 40 C.F.R. § 2.402(b), the employee may provide testimony only when the
General Counsel or his designee, in consultation with the appropriate Assistant Administrator,
determines that compliance with the request would “clearly be in the interests of EPA.” As the
designee of EPA’s General Counsel, I am responsible for making this determination.
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In your letter you state that
[ c]ompliance with this request would clearly be in the interests of EPA.
EPA is the tenant occupying the subject building, was clearly impacted by
the freezing incident, and apparently has not yet resolved its claim for
resulting damages with HUB Realty. Mr. Ashmore’s testimony will flirther
the fact finding process now underway in discovery and help facilitate a
resolution of all claims related to the freezing incident.
I have reviewed your arguments and the recommendation of Mr. Ashmore’s supervisors,
and have consulted with the Acting Assistant Administrator for OARM. On this basis, I have
concluded that compliance with the request would not clearly be in the interests of EPA.
Furthermore, officials in FMSD have advised me that EPA has no pending claims against HUB
Realty, your client, or Graves Mechanical related to the freezing incident discussed in your letter.
Consequently, I have determined that this litigation concerns a matter purely among private
litigants, the outcome of which will have no significant effect upon EPA’s programs, functions, or
responsibilities. Providing official time for an Agency employee to testif ’ in this lawsuit would be
an inappropriate use of EPA resources. In addition, providing this testimony could be perceived
as a failure by the Agency to maintain impartiality among private litigants as required by 40 C.F.R.
§ 2.40 1(c). Because no Federal interest would be served by participation in the deposition, to do
so would likely favor one or the other parties in the litigation, contrary to the regulatory
proscription.
FMSD is delegated the responsibility to acquire, manage, and dispose of the Agency’s real
estate portfolio. Federal Property and Administrative Services Act of 1949, Pub. L. No. 81-152,
63 Stat. 377 (codified as amended in scattered sections of Titles 40 and 41 U.S.C.); 41 C.F.R.
Part 101 (Federal Property Management Regulations); and EPA Delegation 1-4-B. The portfolio
consists of over 8,000,000 square feet of office, laboratory and special use space in 146 facilities
across the country. The responsibility necessitates daily interaction between FMSD staff and
landowners, tenants, management companies, architects, and engineers to resolve construction-,
mechanical-, and systems-related issues.
These myriad relationships result in disputes and litigation between and among
contractors, subcontractors, landowners, and others, which do not directly involve the interests of
the United States. To inteiject the weight of the United States into private party litigation of this
type would set a precedent for FMSD and for the Agency, and would lead to numerous similar
requests that would interfere with the normal operations of FMSD and its responsibility to
manage the real estate portfolio for the benefit of all taxpayers.
In sum, Mr. Ashmore’s duties do not encompass testii ing in private lawsuits to which the
United States is not a party. The outcome of the instant litigation will have no impact on EPA’s
claim for damages with the landowner, which has been settled, or any other aspect of the
Agency’s responsibility to manage its real estate interests. Allowing such testimony would be
burdensome and time consuming for Mr. Ashmore and would set a precedent that would interfere
with the Agency’s management of its extensive real estate interests around the country.
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Accordingly, I have determined that it is not clearly in EPA’s interests to permit Mr.
Ashmore to testif i as an Agency employee pursuant to your request. Consequently, Mr. Ashmore
will not appear at the September 26 deposition in the above-referenced litigation.
If you have any questions concerning this matter, please contact...
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2. Kenneth Dugger testimony
Re: Deposition Subpoena for EPA Employee Testimony in International Plastic
Packaging. Inc. v. AMT Freight. Inc. , Los Angeles Superior Court, Los Angeles,
California, Case No. BC 199425
Dear Mr. Coleman:
I am responding to your deposition subpoena, dated October 10, 2000, in connection with
the above-referenced litigation, of Kenneth L. Dugger. Mr. Dugger is a special agent in the
Criminal Investigation Division within the Office of Criminal Enforcement, Forensics, and
Training (“OCEFT”) of the U.S. Environmental Protection Agency’s (“EPA” or “Agency”) Office
of Enforcement and Compliance Assurance. EPA is not a party to the lawsuit.
EPA regulations at 40 C.F.R. § 2.402(b) prohibit Agency employees from providing
testimony “concerning information acquired in the course of performing official duties or because
of the employee’s official relationship with EPA,” unless, inter alia, authorized by the General
Counsel or his designee under 40 C.F.R. § 2.404. The purpose of these regulations is “to ensure
that employees’ official time is used only for official purposes, to maintain the impartiality of EPA
among private litigants, to ensure that public finds are not used for private purposes and to
establish procedures for approving testimony. when clearly in the interests of EPA.” 40 C.F.R.
§ 2.40 1(c). According to 40 C.F.R. § 2.404, when testimony by an EPA employee is subpoenaed,
the employee may provide testimony only when the General Counsel or his designee, in
consultation with the appropriate Assistant Administrator, determines that compliance with the
subpoena would “clearly be in the interests of EPA.” As the designee of EPA’s General Counsel,
I am responsible for making this determination.
I have reviewed the subpoena and the recommendation of Mr. Dugger’s supervisors and
have consulted with senior officials in OCEFT. I have determined that this litigation concerns a
matter purely among private litigants, the outcome of which will have no significant effect upon
EPA’s programs, functions, or responsibilities. Providing official time for an Agency employee to
testif r in this lawsuit would be an inappropriate use of EPA resources. Furthermore, providing
such testimony could be perceived as a failure by the Agency to maintain impartiality among
private litigants.
Accordingly, I have determined that it is not clearly in EPA’ s interests to permit
Mr. Dugger to testi1 y as an Agency employee pursuant to your subpoena. Since EPA respectfully
declines to produce Mr. Dugger in reliance on the Agency regulations cited above, the Los
Angeles Superior Court lacks jurisdiction to subpoena Mr. Dugger’ s testimony. In re Elko
County Grand Jury v. Siminoe . 109 F.3d 554 (9th Cir. 1997). Any state court order purporting
to compel compliance with the invalid subpoena would be unenforceable, and any sanctions which
might be imposed against Mr. Dugger would require EPA to have the United States Attorney
remove the entire case to United States District Court and have the sanctions dismissed for lack
of subject matter jurisdiction. Swett v. Schenk . 792 F.2d 1447 (9th Cir. 1986).
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Consequently, Mr. Dugger will not appear at the deposition scheduled on October 18,
2000 at your law offices, If you have any questions concerning this matter, please contact Aron
Golberg, Attorney- Advisor, of my staff on (202) 564-5629.
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3. Tyler Amon testimony
Re: Deposition Subpoena for EPA Employee Testimony in Glenn Malson and
Virginia Malson v Palmer Broadcasting Group , District Court of Oklahoma County, State
of Oklahoma, Case No. CJ-94-5284-62
Dear Mr Epstein:
I am responding to your deposition subpoena, dated September 7, 2001, in connection
with the above-referenced litigation, of Tyler C. Amon Mr. Amon is a special agent in the
Criminal Investigation Division within the Office of Criminal Enforcement, Forensics, and
Training (“OCEFT”) of the U.S. Environmental Protection Agency’s (“EPA” or “Agency”) Office
of Enforcement and Compliance Assurance (“OECA”). EPA is not a party to the lawsuit.
EPA has promulgated its Touhy regulations at 40 C.F.R. Part 2, Subpart C. United
States ex rel. Touhy v. Ragen . 340 U.S. 462 (1951). These regulations at 40 C.F.R.
§ 2 402(b) prohibit Agency employees from providing testimony “concerning information
acquired in the course of performing official duties or because of the employee’s official
relationship with EPA,” unless, inter alia . authorized by the General Counsel or his designee under
40 C F.R. § 2.404. The purpose of these regulations is “to ensure that employees’ official time is
used only for official purposes, to maintain the impartiality of EPA among private litigants, to
ensure that public funds are not used for private purposes and to establish procedures for
approving testimony. . . when clearly in the interests of EPA.” 40 C.F.R. § 2.401(c). According
to 40 C.F.R. § 2.404, when testimony by an EPA employee is subpoenaed, the employee may
provide testimony only when the General Counsel or his designee, in consultation with the
appropriate Assistant Administrator, determines that compliance with the subpoena would
“clearly be in the interests of EPA” As the designee of EPA’s General Counsel, I am responsible
for making this determination.
I have reviewed the subpoena and your letter to Leo A. D’Amico, Director, OCEFT. I
have also reviewed the recommendations of Mr. Amon’s supervisors and have consulted with the
Acting Assistant Administrator for OECA. I have determined that this litigation concerns a
matter purely among private litigants, the outcome of which will have no significant effect upon
EPA’s programs, functions, or responsibilities. Providing official time for an Agency employee to
testif ’ in this lawsuit would be an inappropriate use of EPA resources. Furthermore, providing
such testimony could be perceived as a failure by the Agency to maintain impartiality among
private litigants.
Accordingly, I have determined that it is not clearly in EPA’s interests to permit
Mr. Amon to testi& as an Agency employee pursuant to your subpoena. Since EPA respectfully
declines to produce Mr. Amon in reliance on the Agency regulations cited above, the District
Court of Oklahoma County lacks jurisdiction to compel Mr. Amon’s testimony. State of
Oklahoma v. Hopkins , 162 F.3d 1172, 1998 WL 712663 (10th Cir. 1998). Any state court
sanctions which might be imposed against Mr. Amon for failure to obey the invalid subpoena
would require EPA to have the United States Attorney remove the case to United States District
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Court and have the subpoena quashed and sanctions dismissed for lack ofjurisdiction. State of
Kansas v. Call , 961 F.2d 220, 1992 WL 83536 (10th Cir. 1992); Hopkins , 1998 WL 712663.
Consequently, Mr. Amon will not appear at the deposition scheduled on September 18,
2001 at your law offices. If you have any questions concerning this matter, please contact
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4. Bradley Chambers letter (KITCHEN SiNK )
Re: Request for Deposition Testimony in Riceland Foods v. Kentucky-Tennessee Clay
c . ., United States District Court, Eastern District of Arkansas, Pine Bluff
Division, Case No. P.B.-C-99-405
Dear Mr. Chambers:
I am responding to your letter to me, dated June 23, 2000, on behalf ofyour client,
Kentucky-Tennessee Clay Co. (“K-T Clay”), requesting the deposition testimony of three
employees of the Environmental Protection Agency (“EPA” or “Agency”) in the above-captioned
private litigation. On January , 2001, my office received your motion to compel, dated
December 29, 2000.
As you know, Robert Friedrich, who is now one of my Deputy Associate General
Counsels, discussed your request with you in a teleph’one conversation on July 5, 2000, and
explained that the three EPA employees whose deposition testimony you are seeking did not have
permission to testi1 ’ based on EPA’s regulations at 40 C.F.R. Part 2, Subpart C. I intended to
follow up on that telephone conversation with a written determination at that time but, due to an
administrative oversight, that determination was not sent. This letter constitutes the written
determination on your request.
Your client is a defendant in the above-captioned private litigation to which the EPA is not
a party. In your June 23, 2000, letter, you requested the deposition testimony in this lawsuit of
the following three EPA employees: Jesse Baskerville, Director of the Toxics and Pesticides
Enforcement Division in the Office of Regulatory Enforcement, Office of Enforcement and
Compliance Assurance (“OECA”); Dwain Winters, Policy Analyst in the National Program
Chemicals Division, Office of Pollution Prevention and Toxics (“OPPT”), Office of Prevention,
Pesticides, and Toxic Substances (“OPPTS”); and Joseph Ferrario, dioxin team leader in the
Biological and Economic Analysis Division, Office of Pesticide Programs, OPPTS.
In your June 23, 2000, letter, you stated that EPA, as part of its ongoing dioxin
reassessment and its efforts to quantif r dioxin levels in foods, analyzed 80 poultry samples
collected from all over the United States to determine the background level of dioxin. You stated
that EPA found that two samples contained considerably higher levels of dioxin than the others
and traced these samples to two processing plants, one in Texas and one in Arkansas. You stated
that later sampling of poultry products from this same general area also revealed elevated levels of
dioxin. You stated that EPA, the U.S. Department of Agriculture’s Food Safety and Inspection
Service (“FSIS”), and the Food and Drug Administration (“FDA”) traced the contaminant to ball
clay, an ingredient used as an anti-caking agent in animal feeds. You stated that K-T Clay shipped
ball clay to Riceland Foods (“Riceland”), which used the ball clay as a flow additive to its soybean
meal. You stated that Riceland’s soybean meal was then sold to various animal producers You
stated that as a result of the alleged elevated levels of dioxin, the federal government allegedly
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required several animal producers to destroy product and feed. You stated that Riceland has
resolved the product loss claims with all of its customers, but was seeking reimbursement from K-
T Clay for these losses.
You claimed that EPA’s procedure, methodology, and scientific basis for the tests and the
analysis of their results by EPA, as well as the means by which the higher levels of dioxin were
traced to the two processing plants discussed above, are unknown to K-T Clay. Furthermore,
you asserted that K-T Clay does not know the circumstances surrounding EPA’s notification of
FSIS and FDA and the subsequent actions by all three agencies, which you claim form the basic
facts of Riceland’s complaint against K-T Clay. You also claimed that the means by which the
determination that the contaminant was traced to ball clay is a central fact against which K-T Clay
must defend itself and is presently unknown to K-T Clay.
You asserted that the above-referenced information that K-T Clay needs in the instant suit
is available only through the deposition testimony of the three EPA employees identified above,
who, you claim, have personal, first-hand knowledge regarding EPA’s actions in this matter.
EPA’s regulations at 40 C.F.R. § 2.402(b) prohibit Agency employees from providing
testimony “concerning information acquired in the course of performing official duties or because
of the employee’s official relationship with EPA,” unless authorized by the General Counsel or his
designee under 40 C.F.R. § 2.403 or 2.404. The purpose of these regulations is “to ensure that
employees’ official time is used only for official purposes, to maintain the impartiality of EPA
among private litigants, to ensure that public finds are not used for private purposes and to
establish procedures for approving testimony. . . when clearly in the interests of EPA.” 40 C F.R.
§ 2.40 1(c). According to 40 C.F.R. § 2.403 and 2.404, when voluntary testimony by an EPA
employee is requested or when testimony by an EPA employee is subpoenaed, the employee may
provide testimony only when the General Counsel or his designee, in consultation with the
appropriate Assistant Administrator, determines that compliance with the request would “clearly
be in the interests of EPA.” As the designee of EPA’s General Counsel, I am responsible for
making this determination.
When the testimony of an Agency employee is requested, the requesting party must state
“why the testimony would be in the interests of EPA.” 40 C.F.R. § 2.403. Your letter explains
why the requested testimony would benefit your client, but it does not indicate why providing the
deposition testimony of the three employees identified above would clearly be in the interests of
EPA, as required by 40 C.F.R. § 2.403.
I have reviewed the recommendations of the supervisors of these employees and have
consulted with the appropriate Assistant Administrators. I have determined that the lawsuit for
which you seek these three employees’ deposition testimony concerns a dispute among private
litigants, the outcome of which will have no significant effect upon EPA’s programs, functions, or
responsibilities. Providing official time for an Agency employee to testif ’ in this lawsuit would be
an inappropriate use of EPA resources. Furthermore, providing such testimony could be
perceived as a failure by the Agency to maintain impartiality among private litigants.
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As identified in the Message of the President transmitting Reorganization Plan No. 3 of
1970, 5 U.S.C. App. (1996), which established EPA as a new agency, the principal roles and
functions of the EPA include, inler alia, “ [ t]he conduct of research on the adverse effects of
pollution and on methods and equipment for controlling it, the gathering of information on
pollution, and the use of this information in strengthening environmental protection programs and
recommending policy changes.” . at 1553. These roles and functions are assigned by the
various statutes EPA is responsible for administering. See. e.g. . sections 2 and 10 of the Toxic
Substances Control Act (“TSCA”), 15 U.S.C. § § 2601 and 2609, and section 103 of the Clean
Air Act, 42 U S C. § 7403. Individually and collectively, the employees identified above have
significant responsibilities in accomplishing EPA’s mission in these areas. In reviewing this
matter, I have given careful consideration to the positions held by the three employees and the
extent to which they would have to forgo their responsibilities in order to testify in this matter.
Jesse Baskerville is a Supervisory Environmental Engineer and Director of the Toxics and
Pesticides Enforcement Division, Office of Regulatory Enforcement of OECA, at EPA
Headquarters in Washington, D.C. Mr. Baskerville plans and directs the national enforcement
program under TSCA, the Federal Insecticide, Fungicide, and Rodenticide Act, and the
Emergency Planning and Community Right-to-Know Act. In his capacity as Division Director,
Mr. Baskerville is responsible for setting national priorities and goals for implementation of the
Residential Lead-based Paint Hazardous Reduction Act of 1992. He is also responsible for
coordinating the inspection and enforcement response activities of ten EPA regional field offices
under the above statutes, as well as developing national enforcement policies. Mr. Baskerville
also manages and coordinates the activities of two branches, consisting of attorneys and multi-
disciplinary technical staff He is responsible for developing annual and long-term program plans
incorporating Agency enforcement goals and priorities. Mr. Baskerville also directs the
development and prosecution of nationally significant enforcement cases, as well as the
development and implementation of specific enforcement initiatives to address high priority
legislative mandates and environmental or health threats. Mr. Baskerville is not directly involved
in collecting and analyzing dioxin data and has no first-hand knowledge regarding EPA’s actions
in this matter.
Dwain Winters is a Policy Analyst in the National Chemistry Programs Division, Office of
Pollution Prevention and Toxics, OPPTS. Mr. Winters directs the Dioxin Policy Project for EPA
and is responsible for ensuring that dioxin policy issues are discussed and resolved in a
coordinated manner by all of the Agency offices involved in dioxin-related regulatory programs.
He is also the co-director of the Dioxin Exposure Initiative, which is studying the links between
dioxin sources and exposure to humans. The Dioxin Exposure Initiative is a critical component
of EPA’s ongoing efforts to reassess the risks to human health from exposures to dioxin.
The risk reassessment that Mr. Winters is working on is designed to provide updated
scientific information to Agency policymakers which is needed for promulgating regulations and
taking other actions to address the threat to human health posed by dioxins in the food chain.
Successful completion of this nine-year long project will advance EPA’s efforts to reduce human
health risks. The reassessment will describe the scientific state of knowledge regarding dioxin
sources, pathways of exposure, levels of human exposure, and dioxin toxicology. That project is
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now at a critical phase in its development. In addition to carrying out his routine responsibilities
at the Agency, Mr. Winters will be devoting a substantial amount of his time over the coming
months on tasks that are necessary to complete the reassessment.
Joseph Ferraria leads the dioxin analytical team at the Agency’s Environmental Chemistry
Laboratory, which is located at the Stennis Space Laboratory in Mississippi. His role as
coordinator of the dioxin analytical team is critical to the day-to-day operation of the laboratory’s
activities. Mr. Ferrario not only supervises the personnel involved in laboratory sample
preparation, but is also the sole operator of the high resolution gas-chromatograph/high resolution
mass spectrometer (HRGC/HRMS), which is used for the analyses of the samples. Expert
operation of the HRGC/HRMS is essential to EPA’s analysis of dioxin. The timely operation of
analyses performed by Mr. Ferrario and his team is critical to the successful conduct of several
dioxin research efforts, including the National Dioxin Air Monitoring Network, analysis of dioxin
in animal feeds, and ongoing field monitoring studies in both Oklahoma and California. Timely
analysis of samples from these studies is important to the scientific validity of the studies, and the
information from these studies is important to EPA’s successful management of dioxin risks
Diverting key employees like Mr. Baskerville, Mr Winters, and Mr. Ferrario from their
vital responsibilities to testif ’ in a private lawsuit in which EPA has no interest will delay progress
on the Agency’s efforts to protect human health.
The duties of these employees do not encompass testii ing in private lawsuits to which the
United States is not a party. The outcome of the instant litigation will have no impact on EPA’s
dioxin risk reassessment or any other aspect of EPA’s mission. Allowing these employees to
testi1 r would require them to spend a substantial amount of time preparing for and participating in
the requested depositions No clear EPA interests would be served by allowing these employees
to spend the Agency resources such testimony would require If EPA employees were required to
testi1 in private litigation every time someone requested such testimony, given the huge number
of environmental cases between private parties, the cumulative disruption to EPA’s mission would
be severe.
Furthermore, you make the conclusory statement that you can obtain the f cts at issue
only from the oral testimony of the EPA employees identified above. You do not explain why, for
example, obtaining documents would not provide you with the information you seek. In fact,
much of the scientific research to which you refer in your letter is publicly available.
Finally, you state that K-T Clay does not know the circumstances surrounding EPA’s
notification of FSIS and FDA and the subsequent actions by all three agencies. However, you
claim that these circumstances and actions form the basic facts of Riceland’s complaint against K-
T Clay. Civil discovery provides you with the opportunity to obtain such information from the
plaintiff
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Accordingly, I have determined that it is not clearly in EPA’s interests to permit Messrs.
Baskerville, Winters, and Ferrario to give deposition testimony as Agency employees pursuant to
your request. Consequently, these individuals will not give testimony in the above-captioned
lawsuit
If you have any questions concerning this matter, please contact Patricia K. Hirsch,
Assistant General Counsel, Information Law Practice Group, on (202) 564-5462.
Sincerely,
Maria E. Diamond
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5. Felix Flechas Testimony
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION VIII
999 18th STREET Suite 600
DENVER, COLORADO 80202.2466
Via Facsimile
MAR18 1998
Ann M. Rochelle
Williams, Porter, Day and Neville, P.C.
145 South Durbin, Suite 300
Casper, Wyoming 8260 1-2586
Re: March 11, 1998 subpoena and subpoena duces tecum to Mr. Felix Flechas for
testimony in Wilson et al. v. Amoco. et al. . Civil Action No. 96 CV 124-8
Dear Ms. Rochelle:
As Mr. David Carson indicated in your telephone conversation with him today, EPA,
under its regulations found at 40 C.F.R. Part 2, may not authorize Mr Flechas to testify or
provide documents in response to the above-referenced subpoenas. However, in that event, 40
C.F.R. §2.405 directs EPA to consider a subpoena duces tecum as a written request for
documents. EPA can respond to such a request by providing authenticated documents that are
admissible as evidence at trial as Agency records under 28 U.S.C. § 1733 and Rule 44 of the
Federal Rules of Civil Procedure.
In anticipation of this possibility, I have enclosed with this letter copies of all of the
documents that to my knowledge are responsive to your subpoena duces tecum . except for
deposition transcripts, which you may already have. Instead of the actual transcripts, I have
enclosed a deposition index. Please review the documents and index and let me know if you wish
me to provide you with any authenticated copies.
Of course, in the event EPA decides that it is clearly in the interests of the
Agency to provide Mr. Flechas testimony, I will forward the appropriate documents accordingly.
I look forward to hearing from you.
Sincerely,
Is’
Steven B. Moores
Associate Regional Counsel
(303) 312-6857
cc: David Carson, DOJ
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6 RC Determination on the Testimony of Five Employees
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION Yffi
999 18th STREET. SUITE 500
DENVER, COLORADO 80202-2466
MAR 26 1998
Ref: 8RC
MEMORANDUM
Subject: Determination regarding March 19, 1998 subpoenas issued to EPA Employees for
deposition testimony in Wilson. et al. v. Amoco. et a!.. Civil Action No. 96 CV
124-B.
From Thomas A. Speicher 1sf
Regional Counsel
To Paul Are!!
Manager, Corrective Action Unit
Pollution Prevention, State & Tribal Assistance
Max Dodson
Assistant Regional Administrator
Ecosystems Protection and Remediation
Martin Hestmark
Director, Technical Program
Enforcement, Compliance and Environmental Justice
Charles (Bill) Murray
Director, Program Support
Pollution Prevention, State & Tribal Assistance
Stephen S. Tuber
Director, Water Program
PoI!ution Prevention, State & Tribal Assistance
As you know, on March 19, 1998, EPA received facsimile subpoenas for deposition
testimony from five Region VIII employees in the above-referenced citizens suit in which the
United States is not a party’. The subpoenas command these individuals to appear in the offices of
1 The Department of Justice accepted service for these subpoenas on March 25.
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Amoco Production Company, in Denver, Colorado, on Monday, March 30, 1998, at various
times between 9:00 a.m. and 3:30 p.m to provide oral testimony in videotaped depositions.
Amoco is a defendant in the civil action, which has been brought by the citizen plaintiffs
under RCRA, the Clean Water Act, and other authorities to obtain preliminary and permanent
injunctions for cleanup of Amoco’s Casper refinery, a former tank farm, and a former service
station
The five employees subpoenaed are:
Terry Anderson, Director
Federal Facilities Cleanup Program
Ecosystems Protection and Remediation
Randall Breeden, Geohydrologist
Hazardous Waste Program
Pollution Prevention, State & Tribal Assistance
D. Edwin Hogle, Director
Groundwater Program
Pollution Prevention, State & Tribal Assistance
Linda Jacobson, Enforcement Engineer
RCRA Enforcement Program
Enforcement, Compliance, and Environmental Justice, and
Bob Stone
Superfiind Technical Liason,
Ecosystems, Protection and Remediation.
The testimony sought from these employees is described by the Amoco subpoenas as that
relating to:
(1) communications between EPA and all counsel, agents, and representatives for plaintiffs in
the civil action, Wilson, et al. v. Amoco. et al. .
(2) the subject matter as set forth in Plaintiffs’ designation of trial witnesses in that litigation,
and
(3) EPA involvement re. Amoco’s former Casper Refinery, former tank farm, and former
service station.
These five subpoenas and the subject matter of the testimony sought are substantively
indistinguishable to those in subpoenas served on Felix Flechas by Amoco on March 13, 1998.
Inasmuch as the testimony sought is identical in every case, and because the facts underlying
EPA’s RCRA corrective action order are the same in all cases, the analysis needed to detennine
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whether it is clearly in the interests of EPA to have these newly subpoenaed individuals testiFy is
the same as that already provided for Mr Flechas. Accordingly, I will only summarize that
analysis here, and I have attached to this memorandum a copy of the March 18, 1998,
determination and analysis done for Mr. Flechas, which I incorporate by reference.
For the reasons set forth in that March 18, 1998 analysis, and after appropriate
consultation, I have determined that it is not clearly in the interests of the Environmental
Protection Agency to allow the five subpoenaed individuals listed above to provide the requested
oral testimony. This determination, as in the March 18, 1998 determination, is based on the
factors set forth in the Agency’s subpoena regulations at 40 C.F.R. Part 2 and the particular facts
and circumstances surrounding these subpoenas, the Wilson litigation, and EPA’s separate
corrective action order.
Only one of the five individuals subject to the March 19, 1998 subpoenas, Linda Jacobson,
has any current responsibility in or involvement with EPA’s corrective action at the Amoco
Casper facility. 2 Ms. Jacobson is the technical staff member who monitors general RCRA
compliance by Amoco at its Casper facility. Even though working with the Amoco facility has
kept her busy, she currently has responsibility for six other RCRA sites and is the only staff
member in her program responsible for EPA inspections and oversight of RCRA activities in the
State of Utah.
The other individuals subpoenaed have not been involved with Amoco for some time,
and/or have had little significant personal involvement with the facility. The first of these, Terry
Anderson, is now Director of the Federal Facilities Cleanup Program, which has no connection to
Amoco’s Casper refinery. I believe Mr. Anderson was a Branch Chief at the time EPA’s RCRA
corrective action order was issued, which placed him two supervisory levels above that which
would include direct involvement with the particular facts and circumstances of the Amoco case.
Mr. Anderson’s present duties include direct supervision of the work of a 35 person office
charged with cleaning up and closing 13 federal facilities in the Region, including Rocky
Flats and the Rocky Mountain Arsenal. In this role, Mr. Anderson personally is EPA’s
representative on the panel that hears grievances among EPA, the Department of Defense, the
State of Colorado, and the Department of Energy for the federal facilities of concern to his unit.
In addition to his numerous other duties, Mr. Anderson is a member of the Federal Facilities
Leadership Council, an organization of EPA managers who provide national direction and policy
for the federal facilities clean-up program.
The next person listed by Amoco, Mr Randall Breeden, is a Regional Geohydrologist.
He helped review, as part of EPA’s corrective action oversight, Amoco’s CCRA report to
determine the adequacy of the site characterization information, the efficacy of the existing
extraction system, and usefulness of the company’s ground water modeling work. This was his
only involvement with the facility. Mr. Breeden, whose other numerous responsibilities are listed
2 Each individual’s current duties and responsibilities are detailed more fully in
attachments to this memorandum
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in an attachment, is the Regional RCRA Corrective Action contact for geohydrologic/
groundwater issues and technologies related to the design and implementation of contaminant
detection and remediation systems.
D. Edwin Hogle, like Terry Anderson, is currently a supervisor. Mr. Hogle is in charge
of direct implementation or oversight of the Region’s Underground Injection Control programs
under the Safe Drinking Water Act, and the Underground Storage Tank programs under RCRA,
including implementation of programs in Indian Country. Mr. Hogle was the program staff
member responsible for initiation of the corrective action order to Amoco, but has had no
involvement with the facility for several years.
The last person subpoenaed, Bob Stone, is currently one-of only eight national Superfund
Technical Liaisons, and the only one in Region VIII. Mr. Stone periodically inspected the Amoco
Casper facility for EPA’s RCRA program, but he has had no involvement with Amoco, or much
involvement with RCRA itself, for the last six years. Mr. Stone’s current responsibilities include
arranging technical support upon request for Superfund sites in Region VIII. He is currently out
of town meeting with other technical liaisons to draft the office’s annual strategic plan. Later this
week he will meet with the Department of Energy in Albuquerque, New Mexico, and on Monday,
the day he is scheduled to be deposed, he plans to be in Albuquerque attending a waste and
energy workshop, in furtherance of his national duties.
Individually and collectively, the employees described above have significant Agency
responsibilities, none of which includes testif iing in private actions to which the United States is
not a party On the other hand, allowing these employees to testii r would require them to spend
substantial time in preparation for and participating in the requested depositions. Inasmuch as the
Wilson litigation does not directly involve EPA’s activities at the Amoco facility, no clear EPA
interests would be served by allowing these persons to spend the Agency resources such
testimony would require.
As you know, EPA has issued an administrative corrective action order to Amoco under
section 3008(h) of RCRA for cleanup of its Casper refinery. Under RCRA, EPA is entitled to
require Amoco to decide whether to comply with the Agency’s cleanup order prior to judicial
review of the Agency’s administrative action. Allowing the subpoenaed individuals to testii ’ in the
Wilson litigation could allow Amoco an impermissible opportunity to obtain “pre-enforcement
review” of EPA’s administrative order. Therefore, on this ground alone, it would not be in EPA’s
interests to allow the five EPA employees to testi&.
Finally, the information Amoco seeks through these depositions can easily be obtained
from other sources. The first item of testimony, communications between EPA and the plaintiffs,
minimal as it has been, can be ascertained directly from plaintiffs through discovery among the
parties. At Amoco’s request, EPA has already provided the company with all of the documents
EPA has obtained from plaintiffs, and there are no clear EPA interests to be served by providing
testimony about these few communications.
The second item of information sought, that being the subject matter of potential
testimony designated by plaintiffs, concerns “the extent and nature of contamination related to the
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Defendants’ facilities.” Amoco is a defendant in Wilson . EPA’s corrective action order requires
Amoco to gather information about the contamination at its facility. Therefore, Amoco
already has this information in its possession and it is not clearly in the interests of EPA to provide
testimony on this subject.
The last item of information sought by Amoco, information about EPA’s involvement at
Amoco’s Casper refinery, tank farm, and service station, is also known to Amoco. EPA’s
corrective action order concerns the refinery itself. Amoco is also required to take corrective
action at its tank farm under a RCRA permit, and EPA has not had substantial involvement at the
service station Since EPA and Amoco deal with each other in all of these cases, Amoco already
knows the extent of EPA’s involvement. Therefore, from this perspective too, it is not clearly in
the interests of EPA to provide the requested testimony.
In light of the above, I do not authorize the above listed EPA employees to testify in
accordance with the March 19, 1998 subpoenas from Williams, Porter, Day and Neville, P.C. In
addition, as with the subpoena to Mr Flechas, I will request the assistance of the U.S.
Department of Justice to represent the interests of the Agency with respect to these new
subpoenas, in accordance with 40 C.F.R § 2 404(d).
If you have any questions, please contact Steven Moores, of my office, at 312-6857.
cc: Charles Figur
David Carson
Attachments
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7. Order Ruling on Motion To Dismiss
FILED
DISTRICT OF WYOMING
CHEYENNE
‘98APR24 AMII:49
CLERK
U.S. DISTRICT COURT
iN THE UNITED STATES DISTRICT COURT
U.S. DISTRICT COURT FOR THE DISTRICT OF WYOMING
ELEANOR F. WILSON, RICHARD L )
WILSON, P.D. CHADDERDON, )
CLiNTON E. NELSON, VIRGiNIA E. )
NELSON, KATHRYN A. KENNEDY, )
WILLIAM MICHAEL KENNEDY, MARK )
R. FRANCES, C. LAVERNE GANGWISH ) Case No 96-CV-124B
and TOM A. DODGE, on their own behalf )
and as representatives of a class of similarly )
situated property owners, )
Plaintiffs, )
)
vs. )
)
AMOCO CORPORATION, an Indiana )
corporation, AMOCO OIL COMPANY, a )
Maryland corporation, BURLiNGTON )
NORTHER RAILROAD COMPANY, a )
Delaware corporation, and STEINER )
CORPORATION, a Nevada corporation, )
)
Defendants. )
)
)
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ORDER RULING ON EPA’S MOTION TO OUASB ADDITIONAL SUBPOENAS
The matter having come before the Court on EPA’s Motion to Quash Additional
Subpoenas filed herein, and the Court having reviewed the motion, the response thereto, and the
reply, and being filly advised in the premises FiNDS:
1. The EPA filed the above-entitled motion on March 27, 1998 seeking an order quashing
five subpoenas ad tesi /Icandvm served on five EPA employees, Terry Anderson, Randall
Breeden, David E. Hogle, Linda Jacobson, and Bob Stone, by the Amoco defendants on March
19, 1998. In support of their motion, the EPA asserts that the subpoenas should be quashed since
these five employees have not been granted authority to comply with the subpoenas under valid
EPA regulations, that the subpoenas are contrary to sound public policy, that the subpoenas are
unduly burdensome, and that the subpoenas are contrary to Amoco v. EPA . 959 F. Supp. 1318
(D. Cola. 1997). Amoco generally denies the EPA’ s assertions and argues that the EPA
employees should be required to comply.
2. With regard to the five subpoenas ad lesI flcandum served by Amoco, the Court finds
that the subpoena should be quashed pursuant to EPA regulations which grant EPA’s General
Counsel the ability to order EPA employees to not comply with subpoenas. Pursuant to the
federal “housekeeping” statute, 5 U.S.C. §301 (1994), the EPA has adopted regulations which
allow EPA’s General Counsel, or his designee, to prohibit employees from complying with
subpoenas when compliance is not clearly in the interest of the EPA. See 40 C.F.R. §2.405.
These regulations apply to proceedings, like this one, where the EPA is not a party.
4. In response to the subpoenas served by the Amoco defendants, on March 26, 1998,
EPA’s Regional Counsel, Thomas Speicher, issued a memorandum determining that “it is not
clearly in the interests of the Environmental Protection Agency to allow the five subpoenaed
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individuals. . . to provide the requested oral testimony.” [ Memorandum of Thomas A. Speicher,
Exh F. to EPA’s Motion to Quash Additional Subpoenas, p.3.] In this memorandum, Mr.
Speicher incorporated a memorandum issued on March 18, 1998 in which he found that it was
not in the EPA’s best interests to allow EPA employee Felix Flechas to comply with subpoenas
issued by Amoco. Since the subpoenas served on Mr. Flechas were identical to the subpoenas
involved here, Mr. Speicher adopted the reasoning used in the March 18 memorandum. In both
of these memorandum, Mr. Speicher provided a detailed explanation of the harm that would
accrue to the EPA if Mr. Flechas were allowed to comply with the subpoenas. Among other
reasons, Mr. Speicher explained that all of these employees have significant Agency
responsibilities which do not include giving or preparing to give testimony Mr. Speicher found
that preparation for the testimony would cause a lengthy interruption that would distract these
employee from their demanding jobs and would provide no benefit to the Agency. Furthermore,
the memorandum questioned whether these employees’ testimony might call into question the
EPA’s impartiality in this lawsuit; a concern which is expressly noted in the EPA’s regulations.
40C.F.R.2.401(c).
5. This Court finds that Mr. Speicher’s memorandum clearly establishes that compliance
with Amoco’s subpoenas would not be in the best interest of the EPA. Consequently, the Court
finds that it is appropriate under the EPA’s regulations to prohibit the five EPA employees from
complying with their subpoenas.
6. The Court further finds that the EPA’s ability to prohibit its employees from complying
with subpoenas is protected under the United States Supreme Court’s decision in Touhy v. Ragen .
340 U.S. 462 (1951). In Touhy . the Supreme Court upheld a regulation promulgated by the
Attorney General which allowed certain employees at the Department of Justice to prohibit their
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subordinates from complying with subpoenas. The regulations involved in Touhy were adopted
under a statutory predecessor to the current housekeeping statute which formed the basis for the
EPA’s regulations. Boron Oil Co. v. Downie. 873 F.2d 67, 69 (4th Cir. 1989). In addition, the
language used in the regulations examined in Touhy was similar to the language used in the EPA’s
regulations. [ Compare Department of Justice Order No. 3229, flIed May 2, 1946, 11 Fed. Reg.
4902, reproduced in Touhy , 340 U.S. at 463 n.l 40 C.F.R. §2.401 - .406.] Because of the
factual similarities between the Touhy case and the present situation, the Court finds no reason to
distinguish between the Attorney General’s regulation involved in Touhy and the EPA regulation
involved here. The Court finds that it is bound to follow the Supreme Court’s guidance provided
in Touhy .
7. The Court is not persuaded by Amoco’s argument that the Touhy decision is
inapplicable to this case because the EPA has taken an active role in this litigation. [ Response,
p.4.] Although Mr. Flechas, an EPA employee, did testify in the preliminary injunction hearing,
such testimony came only upon a subpoena from the District Court. Furthermore, while the EPA
has copied the District Court on various reports concerning Amoco’s remediation efforts, this
limited involvement has come only at the request of the District Court so that it might monitor
Amoco’s relationship with the EPA.
8. The Court is further pursuaded to follow the Touhy decision by the lower court cases
cited in EPA’s brief which have extended the Touhy decision to the EPA regulations involved
here. See. e.g. Boron Oil Co. v. Downie. 873 F.2d 67, 69 (4th Cir. 1989) (addressing 40 C.F.R.
2.401 and finding that “the Supreme Court has specifically recognized the authority of agency
heads to restrict testimony of their subordinates by this type of regulation”).
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9. Additionally, the Tenth Circuit Court of Appeals has summarily adopted the reasoning
of the Supreme Court in Touhy and held that a subpoena could not be enforced against an
employee of the Bureau of Standards. See also Saunders v. Great Western Sugar Co.. 396 F 2d
794 (10th Cir. 1968) (finding that an assistant administrator of the Small Business Association
could prohibit a subordinate employee from responding to a subpoena)
9. Under this weight of authority, the Court concludes that Mr Speicher properly ordered
the five EPA employees to not comply with Amoco’s subpoenas. Under the Supreme Court’s
decision in Touhy , and the EPA’s regulations codified at 40 C.F R. 2 401 - .406, Amoco cannot
compel EPA employees to give deposition testimony. Therefore, the Court finds that Amoco’s
subpoenas should be quashed.
10. Since the Court has concluded that Amoco’s subpoenas must be quashed pursuant to
the EPA’s regulations and the Touhy decision, the Court finds it unecessary to address the EPA’s
other arguments.
NOW THEREFORE, IT IS ORDERED that the EPA’s Motion to Quash Additional
Subpoenas be, and the same hereby is GRANTED. Terry Anderson, Randall Breeden, David E.
Hogle, Linda Jacobson, and Bob Stone shall not be required to comply with the subpoenas ad
tesI /Icandum served on the EPA on March 19, 1998.
Dated thisj day of April, 1998.
1st
William C. Beaman
U.S. Magistrate Judge
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S Brief in Support of Motion To Quash
LOIS J SCHIFFER
Assistant Attorney General
Environment and Natural Resources Division
LYNN DODGE
Senior Counsel
Environmental Enforcement Section
U S Department of Justice
Ben Franklin Station
P0 Box 7611
Washington, D C 20044
(202) 514-4485
SHERRY S MATFEUCCI
United States Attorney
District of Montana
KRIS MCLEAN
Assistant United States Attorney
District of Montana
First Floor
100 North Park Avenue
Helena, Montana 59601
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTFE DIVISION
STATE OF MONTANA )
)
Plaintiff and Counter-Defendant, )
)
) No. CV-83-317-HLN-PGH
)
AThANTIC RICHFIELD COMPANY, )
)
Defendant and Counter-Claimant. )
BRIEF IN SUPPORT OF THE UNITED STATES’
MOTION TO QUASH THE SUBPOENA
ISSUED TO AN EMPLOYEE OF THE UNITED STATES
GEOLOGICAL SURVEY
The United States brings this motion to quash the subpoena issued in this action to a
United States Geological Survey (USGS) employee, John Lambing. Mr. Lanibing has limited
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authority to testif y, and in the area where he does have authority to testify, the facts are reported
in publicly available documents. Moreover, certain provisions of Federal Rule of Civil Procedure
45 (c) (3) bar Mr. Lambing’s testimony. The United States asks that the Court quash the
subpoena of Mr. Lambing.
STATEMENT OF FACTS
A. THE PRESENT ACTION
The State of Montana brought the present action against ARCO seeking the recovery of
damages for injury to natural resources in the Upper Clark Fork River Basin The Upper Clark
Fork River Basin is an area that has been adversely affected by mining activities. It is the subject
of both remediation by EPA, and restoration by natural resource damage trustees, including the
State.
B. REMEDIATION UNDERTAKEN BY EPA
The response action either undertaken or ordered by EPA is done under the National
Contingency Plan, a set of regulations at 40 CFR Part 300, which outlines the procedures that
EPA must follow in determining whether a threat to human health or the environment exists and,
if so, the procedure to determine the response action that must be taken. Each step of the
response action process requires documentation of the decisions made by the agency and an
explanation of the decisions. See 42 U.S.C. § 96 13(k); 40 CFR Part 300, Subpart I. For
instance, the Remedial Investigation outlines the process by which the agency will investigate the
current status of the Site to determine the extent of the contamination. 40 CFR Part 300, Subpart
E. This investigation, or certain parts of it, may be performed by contractors hired by EPA, or by
a PRP (or its contractors) who is under an order to perform the remedial investigation. The
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results are compiled in the Remedial Investigation Report. At the Militown Reservoir/Clark Fork
and the Silver Bow Creek/Butte Area Sites, certain data collection and interpretation has been
performed by USGS’ as a contractor to EPA for the remedial investigation of the Milltown
Reservoir, the Clark Fork River, and the Streamside Tailings areas. Mr. Lambing is involved in
this USGS work for response actions. (Lambing Declaration at ¶ 2).
C RESTORATION AT THE SITE
In addition to the remediation, restoration of natural resources may also be necessary at a
site. CERCLA and its regulations have identified the entities that are considered “trustees” of the
natural resources, who are entitled to bring actions on behalf.of the resources for, inter alia .
restoration of those resources CERCLA Section 107(f) (1); 42 U.S.C. § 9607(f) (1). States are
among those trustees. j The EPA is not considered a natural resource damage trustee at this
Site; its authority is limited to remediation. See 40 CFR Part 300, Subpart G. In the present
action, the State, acting as a natural resource damage trustee, is seeking recovery of damages for
injuries to natural resources. EPA is not involved in this action. Mr. Lambing is not involved in
restoration issues at the Sites. (Lambing Declaration at ¶ 5).
D. THE SUBPOENA
Despite Mr. Lambing’s lack of involvement in the restoration issues at the Site, on or
about March 28, 1997, ARCO served a subpoena to Mr. Lambing. The subpoena ordered Mr.
1 USGS is part of the Department of the Interior. While the Department of the
Interior is a trustee for natural resources in the Clark Fork Basin, the work performed by this
USGS employee was not in connection with the Department of the Interio?s status as a trustee,
nor as part of the State’s natural resource damage assessment; it was done in conjunction with and
pursuant to interagency agreements with the State of Montana Department of Environmental
Quality (who shares responsibility for response actions with EPA), and the Environmental
Protection Agency for response action at the Site.
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Lambing to appear at trial on April 14, 1997, and as needed thereafter, 2 to testiFy concerning. “1)
the historic and current condition of water quality, bed sediments and benthic macroinvertabrates
in the Upper Clark Fork River; 2) trends in surface water, bed sediment and biological data; 3)
sediment transport and loading to the Upper Clark Fork River; and 4) sources of metals and other
constituents to the Upper Clark Fork River.” Statement attached to Lambing subpoena at ¶ 10
(Exhibit A)
E. THE USGS REGULATIONS GOVERNING SUBPOENAS OF EMPLOYEE
TESTIMONY
When a USGS employee is subpoenaed to provide testimony at a trial in which the United
States is not a party, USGS must follow the procedures set forth in 43 CFR Part 2, Subpart E —
Compulsory Process and Testimony of Employees (See Exhibit B), and USGS Manual Regarding
Court Testimony and Release of Official Records. (See Exhibit C). The regulations establish a
presumption against USGS employees providing testimony in cases to which the United States is
not a party. (Exhibit C, ¶1: “ [ I]t is the policy of the USGS that its employees will not give
testimony,. . . or appear as witnesses in a court of law,.. . concerning matters related to the
business of the Government without the permission of the head of the bureau, or his/her designee,
or of the Secretary of the Interior, or his/her designee.”) Individual employees are simply not
authorized to testiFy absent agency authorization.
The statutory authority for these regulations is 5 U.S.C. § 301, which states:
The head of an Executive department or military department may prescribe regulations for
the government of his department, the conduct of its employees, the distribution and
performance of its business, and the custody, use, and preservation of its records, papers,
and property. This section does not authorize withholding information from the public or
limiting the availability of records to the public.
2 This date was modified to requiring attendance on May 7, 8, or 9, 1997.
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Pursuant to ¶6 of the USGS Manual, Mr. Lambing requested permission to provide the
testimony sought in the subpoena. The Acting Chief of the Office of Program Support authorized
Mr. Lambing to provide limited testimony. (See Exhibit D) Specifically, Mr. Lambing has been
given authority to testify only as to facts about the work he has accomplished as it pertains to the
Upper Clark Fork River. j j, He is not authorized to offer opinions, or speculation, and is not
allowed to comment on the work of others. .. He is not allowed to engage in hypothetical
discussions j He is authorized to testify only as to matters for which he has factual knowledge.
Id.
F FACTS TO WHICH MR LAMBING HAS KNOWLEDGE
Of the issues identified in the subpoena, the only facts of which Mr. Lambing has
knowledge are those related to surface water quality data. Mr. Lambing was not involved with
the collection of biological or bed sediment data. (Lambing Declaration at ¶ 4).
The surface water quality data with which Mr. Lambing has been involved is recorded in
quarterly, annual, and five year reports that are publicly available documents, to which ARCO has
access (Lambing Declaration at ¶ 6). Thus, Mr. Lambing is only authorized to testify about
information that is contained in reports that are available for ARCO.
STATEMENT OF ISSUE
I. Whether an employee can be forced to testify or can be held in contempt for not testifying
in areas where his employing agency has not authorized the employee to testify.
Moreover, ARCO has taken the deposition of Mr. Lambing in this action on April
2, 1996. (Lambing Declaration at ¶ 7, 8). In that deposition, Mr. Lambing also had limited
authority to testify on only factual matters. (Lambing Declaration at ¶ 7). This deposition
transcript is also available for ARCO to use in this case. There is no new information since this
deposition, other than the collection of additional data. (Lambing Declaration at ¶ 9). This
additional data is available in the quarterly reports. (Lambing Declaration at ¶ 9).
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II. Whether the subpoena should be quashed because it seeks information which is protected
under Federal Rule of Civil Procedure 45
ARGUMENT
I. MR. LAMB1NG CANNOT BE FORCED TO TESTIFY OR HELD iN CONTEMPT
FOR NOT TESTIFYiNG ABOUT MATTERS FOR WHICH HE HAS NOT BEEN
AUTHORIZED TO TESTIFY
A The USGS Regulations
The Supreme Court has found that it is appropriate for departments of the government to
promulgate regulations regarding the dissemination of information held within that department,
pursuant to 5 U.S.C. § 301. United States ex rel Touhy v. Ragen , 340 U.S. 462, 468 (1951)
(“When one considers the variety of information contained in the files of any government
department and the possibilities of harm from unrestricted disclosure in court, the usefulness,
indeed the necessity, of centralizing the determination as to whether subpoenas duces tecum will
be willingly obeyed or challenged is obvious “)
Several sets of regulations have been promulgated under 5 U.S.C. § 301, sometimes
referred to collectively as “Touhy Regulations,” to provide government departments and agencies
a procedure to follow when an employee has been subpoenaed in a case to which the United
States is not a party.
B. These Regulations Have the Force of Law
These regulations have the force of law which a court is bound to follow, Chrysler Corp.
v. Brown . 441 U.S. 281, 295-96 (1979) ; Boron Oil Co. v. Downier , 873 F.2d 67 (4th Cir 1989)
(regarding EPA regulations); and a court has no jurisdiction or power to punish an officer for
conforming to that law. Touhy . 340 U.S. at 469; In re Both , 25 F.3d 761, 763 (9th Cir. 1994)
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(citing Boron Oil Co v. Downier , 873 F.2d 67, 69 (4th Cir. 1989)), cert. denied. Olives v. Both .
115 S. Ct. 898 (1995); Sweet v. Schenk , 792 F.2d 1447, 1452 (9th Cir. 1986) (the Touhy
doctrine is jurisdictional, and precludes a contempt action regardless of whether the underlying
determination is ultimately determined to protect the required testimony); Ex parte Hackett . 74
F.2d 922, 923 (9th Cir. 1935) (citing Supreme Court case relied on by Touchy, Bosks v.
Cominform , 177 U.S. 459 (1900)). Thus, federal employees may not be compelled to obey a
subpoena contrary to their federal employer’s instructions under valid agency regulations. Boron
Oil Co. v. Downier , 873 F.2d 67, 69 (4th Cir. 1989). A consideration of the merits of the
department’s decision plays no part in the decision regarding the motion to quash. In re Both . 25
F.3d 761, 763 (9th Cir. 1994) (the question of whether the prior approval was unlawfi.illy
withheld is not properly before the court on the appeal from contempt rulings against Both).
Mr. Lambing has not been authorized to provide testimony in this matter except for
limited factual testimony. (Exhibit D). This detennination was made by USGS pursuant to the
regulations at 43 CFR § 2.80-2.82. Pursuant to the regulations, when a USGS employee does not
have authority to testif r, the employee must:
appear and respectfully decline to testif r or to produce a record on the grounds
that disclosure is prohibited by 43 CFR 2.80(a) , until specific instructions are
received from the Secretary of the Interior, or a designee.
Exhibit B, USGS Manual § 2(b).
Mr. Lambing must, and intends to, follow this procedure in this case if forced to appear
and respond to questions other than fact questions. The Court does not have jurisdiction to force
Mr. Lambing to testi1 ’ regarding matters for which he is not authorized, and cannot punish him
for failing to testif q by holding him in contempt, Touhy , 340 U.S. at 469; Ex parte Hackett . 74
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F.2d 922, 923 (9th Cir. 1935); Sweet v. Schenk. 792 F.2d 1447, 1452 (9th Cir. 1986).
Therefore, his testimony will be limited to facts of which he has knowledge regarding the Clark
Fork River.
The facts about which Mr. Lambing has knowledge and authority to testi& are surface
water quality data. These data are recorded in various reports available to ARCO. Because of
the limitation of Mr. Lambing’s authority to testiFy, and based on the documentation of those facts
about which Mr. Lambing is authorized to testiFy, the United States requests that the Court quash
the subpoena and require ARCO to use the documentary evidence containing the data that would
otherwise be requested from Mr. Lambing
II. THE TESTIMONY ARCO SEEKS IS PROTECTED UNDER RULE 45
A. The Subpoena Seeks Information That Is Already Available to ARCO in Site
Documents. Thus The Testimony Sought Is Burdensome
All of the information about which Mr. Lambing has authority to testiFy is otherwise
available to ARCO in documents and records, thus the subpoena is cumulative and imposes undue
burden in violation of Rule 45(c) (3) of the Federal Rules of Civil Procedure. All of the water
quality data collected at the Clark Fork River by USGS can be found in the quarterly, annual, and
A challenge to the Agency’s decision to limit the authority for Mr. Lambing to testiFy is
properly brought in a separate action under the Administrative Procedure Act, 5 U.S.C. which
provides that a person aggrieved within the meaning of a relevant statute by a final agency
decision may obtain review of that decision in actions in federal court. 5 U.S.C. § 70 1-04; Lujan
v. National Wildlife Federation , 497 U.S. 871, 882-83 (1990). Once made, the agency’s decision
under these regulations not to produce testimony is a decision within the scope of the APA.
Davis EnterDrises v. United States Environmental Protection Agency . 877 F. 2d 1181 (3d Cii.
1989, cert. denied . 493 U.S. 1070 (1990) (court rejected EPA’s argument that the regulations
provided no more than a non-exclusive set of factors to be considered and that the agency had
unfettered discretion in deciding whether to allow employees to testiFy, thus the court would have
no legal standard to apply). Review of the agency’s determination is not before the court at this
time, and cannot be a basis for denying this motion to quash.
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five year reports. (Lambing Declaration at ¶ 6). The United States has offered to supply ARCO
with authenticated or certified copies of any of these documents
Moreover, the deposition testimony of Mr. Lambing is available to ARCO for use in this
trial. Because both the deposition transcript and the documents are already available to ARCO,
the testimony that ARCO seeks is cumulative, duplicative, and subjects Mr. Lambing to undue
burden Accordingly, the subpoena should be quashed pursuant to Rule 45(C) (3) (A) (iv)
B. The Subpoena Requires Disclosure of Protected Matter and Possibly of Privileged
Matter, and No Exception or Waiver Applies
Rule 4 5(c) (3) (A) of the Federal Rules of Civil Procedure provides that.
[ o]n a timely motion, the court by which a subpoena was issued shall quash or modify the
subpoena if it
(iii) requires disclosure of privileged or other protected matter and no exception or waiver
applies
j . Here, the subpoena requires disclosure of protected and potentially privileged information.
1. The Subpoena Requires Discovery of Information
That Is Protected Under Sections 1 13(j) and 113(h) of CERCLA
Section 113 (j) of CERCLA provides in pertinent part
(1) In any judicial action under this chapter, judicial review of any issues concerning the
adequacy of any response action taken or ordered by the President shall be limited to the
administrative record. Otherwise applicable principles of administrative law shall govern
whether any supplemental materials may be considered by the court.
42 U.S.C. § 9613(j).
Section 113(j) therefore limits the scope of review that a Court may conduct in a
CERCLA action with respect to the response actions taken at a Site. This review is limited to
review of the Administrative Record, and excludes testimony of individuals State of Arizona v .
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Motorola. Inc. . 139 F.R.D. 141, 149 (D. Ariz. 1991); United States v Wastecontrol of Florida ,
ii 730 F. Supp. 401, 406 (M.D. Fla. 1989). The scope of discovery is not expanded beyond
the administrative record unless a defendant can show that: (1) the administrative record fails to
explain the governmental agency action; (2) the record is incomplete, in that it does not contain
documents the agency relied upon in making its decision; (3) supplementation of the record is
necessary to clarify or explain technical terms or subject matter; or (4) the agency has acted in bad
faith. $ Public Power Council v. Johnson. 674 F.2d 791, 794-95 (9th Cir. 1982); Texas Steel
Co. v. Donovan. 93 F.R.D. 619, 621 (N.D. Tex. 1982).
Further, Section 113(h) of CERCLA bars pre-enforcement review of an agency action.
Thus, to the extent that EPA has made a remedial decision, or is in the process of making a
remedial decision, a court is barred from reviewing those decisions unless and until certain actions
occur. .The statute provides:
No Federal court shall have jurisdiction under Federal law other than under section 1332
of Title 28 (relating to diversity of citizenship jurisdiction) or under State law which is
applicable or relevant and appropriate under section 9621 of this title (relating to cleanup
standards) to review any challenges to removal or remedial action selected under section
9604 of this title, or to review any order issued under section 9606(a) of this title, in any
action except one of the following:
(1) An action under section 9607 of this title to recover response costs or damages or for
contribution.
(2) An action to enforce an order issued under section 9606(a) of this title or to recover a
penalty for violation of such order.
(3) An action for reimbursement under section 9606(b) (2) of this title.
(4) An action under section 9659 of this title (relating to citizens suits) alleging that the
removal or remedial action taken under section 9604 of this title or secured under section
9606 of this title was in violation of any requirement of this chapter. Such an action may
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not be brought with regard to a removal where a remedial action is to be undertaken at
the site.
(5) An action under section 9606 of this title in which the United States has moved to
compel a remedial action.
CERCLA Section 113(h), 42 U.S.C. § 9613(h). This Court and the Ninth Circuit have both
recognized this limitation on judicial review. , West Side Ditch v. ARCO , 1993 WL
597130 (D. Mt., December 10, 1993); Hanford Downwinders Coalition. Inc. v. Dowdle . 71 F.3d
1469 (9th Cir. 1995); Razore v. Tulalip Tribes of Washington . 66 F.3d 236 (9th Cir. 1995); Beck
v ARCO. , 62 F.3d 1240 (9th Cir. 1995), cert. denied . 116 S. Ct. 1568 (1996); Durfey v. DuPont .
59 F.3d 121 (9th Cir 1995); McClellan v. Perry . 47 F.3d 325 (9th Cir. 1995), cert. denied. 116 S.
Ct. 51(1995); Fairchild v. EPA . 984 F.2d 283 (9th Cir. 1993); Koppers v. EPA . 902 F.2d 756
(9th Cir. 1990).
These sections of CERCLA are relevant because the United States has filed a cost
recovery action against ARCO for costs incurred at the Sites, and a declaratory judgment of
ARCO’s liability (but not for a judgment as to costs) for future costs to be incurred. ARCO is
barred from seeking pre-enforcement review in that action on any decisions that EPA has made or
will make with respect to the remedies at the Site for which the United States is not seeking costs,
but is only seeking declaratory judgment, and is limited to review of those costs that EPA is
seeking to the administrative record under the “arbitrary and capricious or not otherwise in
accordance with law” standard. Because Mr. Lambing is involved in discussions with EPA that
form the basis of EPA’s selection of the response actions at the Sites, his testimony is protected
under these provisions. Through the issuance of the subpoena, however, ARCO will be
circumventing these two statutory provisions, by seeking testimony of a contractor of EPA who
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has performed, and is perfonning work that is part of the remedial process at the Clark Fork
River. Because of this, the subpoenaed testimony falls within the “protected matter” of Rule
45(c) (3) (A) (iii), and should be quashed.
2. The Subpoena May Require Disclosure of
Deliberative Process Or Other Privileged Information
Although the United States does not know at this time what the questions to Mr. Lambing
will be, the United States must anticipate that the questions may involve information covered by
the deliberative process or other privileges. The Court is well aware of the protection against
divulging information protected by the attorney-client and attorney work product privileges,
therefore this section of the brief will focus on the deliberative process privilege.
Deliberative process is a well-recognized privilege against disclosure of internal
administrative agency deliberations. The deliberative process privilege shields those documents or
deliberations “that record the deliberative, predecisional process leading to an agency decision”
United States v. Exxon Con,. . 87 F.R.D. 624, 636 (D.D.C. 1980); N.L.R.B. v. Sears.
Roebuck & Co. . 421 U.S. 132, 150 (1975) (the deliberative process privilege protects “the
Decision making process of government agencies. . . [ exempting from disclosure, for example],
documents reflecting advisory opinions, recommendations and deliberations comprising part of a
process by which governmental decisions and policies are formulated.”); King v. I.R.S. . .684 F.2d
517, 519 (7th Cir. 1982); United States v. Hooker Chemicals & Plastics Coqoration. 114 F.R.D
100, 102 (W.D.N. Y. 1987) (“The deliberative privilege applies to all material reflecting the actual
pre-decisional, mental or deliberative process- inter- and intra-governmental evaluations,
expressions of opinion, and recommendations on policy and decision-making matters.”); Coastal
States Gas Corp v. Department of Ener v . 617 F.2d 854, 866 (D.C. Cir. 1980) (deliberative
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process privilege “covers recommendations, draft documents, proposals, suggestions and other
subjective documents which reflect the personal opinion of the writer rather than the policy of the
agency.”)
The law recognizes the deliberative process privilege because it promotes effective and
innovative government by fostering candid exploration and the “give and take” essential to agency
decision making, King v. I.R.S. , 684 F.2d 517, 519 (7th Cir. 1982); Taxation Without
Representation Fund v. 1.R S. . 646 F.2d 666, 677 (D C. Cir. 1981); Copus v. Rougeau. 504 F.
Supp. 534, 537 (DD.C. 1980), and assures that agency decision makers receive frank
recommendations without fear of public criticism or ridicule. King, 684 F.2d at 519, citing,
Coastal States Gas Corp. , 617 F.2d at 866; SchelI v. U.S. Department of Health and Human
Services. 843 F.2d 933, 941 (6th Cir. 1988) (advisory memorandum privileged because advice
would not have been as forthcoming had the authors known the memo would reach public
attention). Absent this privilege, the range of fresh ideas and the “give and take” of EPA decision
making will surely be limited by fear of later public scrutiny of internal statements an suggestions.
In determining whether to recognize the privilege, a court must balance the public interest
served by protecting the information against the litigant’s need for the information. $ ,
Sears , 421 U.S. at 150 n. 16. While there is no rule outlining the exact showing necessary to
overcome the privilege, the cases show the privilege is not lightly overridden by the courts
To satisfy the privilege, the government bears the burden of showing the requested
documents meet two criteria. First, the information generally must be “predecisional,” j. . .,
created before the agency issued its decision or policy in order to assist an agency decision maker
in arriving at his decision. Sears . 421 U.S. 132, 151 (1975); Hopkins v. United States
Department of Housing and Urban Development . 929 F.2d 81, 84 (2d Cir. 1991); King , 684 F.2d
at 519. Second, the information must be “deliberative,” L .documents which played a role in the
“give and take” of agency decision making. $. King , 684 F.2d at 519; Vaughn v. Rosen. 523
F.2d 1136, 1144 (DC. Cir. 1975) (“Recommendations (and) opinions on legal or policy matters”
are necessarily part of the deliberative process).
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because of its crucial role in fostering effective government decision making. Sears , 421
U.S. at 150; Carl Zeiss Stiftung v V.E.B. Carl Zeiss. Jena . 40 F.R.D. 318, 324, 324 (D.D.C
1966), affd . 384 F.2d 979, cert. denied . 389 U S. 952 (1967), Schell . 843 F.2d at 940 (the “key
question” is whether disclosure would discourage discussion and undermine agency’s ability to
perform its functions)
Here, the subpoena issued on behalf of ARCO seeks testimony from a USGS employee
regarding the work performed pursuant to the remedial activities at the Clark Fork Sites at the
direction of EPA. Mr. Lambing has been the project chief for the Clark Fork water quality
program since 1985. (Lambing Declaration at ¶ 1). As project chief, Mr. Lambing coordinates
the scope and direction of monitoring of the Clark Fork River in consultation with EPA
(Lambing Declaration at ¶ 2). His activities at the Clark Fork Site are pursuant to the remediation
of the Site as directed by EPA. Mr. Lambing is involved in discussions with EPA regarding the
Site characterizations that form the basis of EPA’s decisions for appropriate response actions
which have been or will be selected at the Upper Clark Fork Basin Sites. ARCO should not be
allowed to delve into the inner workings of EPA through the a subpoena of one of the employees
of its contractors, USGS.
C. The Subpoena Requires Disclosure of An Unretained
Expert’s Opinion or Information
Rule 4 5(c) (3) (B) of the Federal Rules of Civil Procedure provides that
If a subpoena...
(ii) requires disclosure of an unretained expert’s opinion or information not describing
specific events or occurrences in dispute and resulting from the expert’s study made not at
the request of any party..
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the court may, to protect a person subject to or affected by the subpoena, quash, modify
the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial
need for the testimony or material that cannot be otherwise met without undue hardship
and assures that the person will be reasonably compensated, the court may order
appearance or production only upon specified conditions.
Id
In this case, the subpoena requires Mr. Lambing, who was not retained as an expert by
either of the parties to the underlying action, to provide testimony regarding his scientific and
technical opinion. ARCO’s request to have Mr. Lambing provide free expert opinion and
information concerning the Clark Fork Sites is not only unpermitted by the scope of the authority
given to Mr. Lambing, but is also unpermitted under Rule 45 (c) (3) (B) (ii).
CONCLUSION
For all of the foregoing reasons, the United States respectfully requests that this Court
quash the subpoena of Mr. Lambing.
Respectfully submitted,
LOIS J. SCFIIFFER
Assistant Attorney General
Environment Land and Natural Resources
Division
U.S. Department of Justice
Is !
LYNN DODGE
Senior Counsel
Environmental Enforcement Section
U.S. Department of Justice
P.O. Box 7611
Ben Franklin Station
Washington, D.C. 20044
(202) 514-4485
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SHERRY S. MATTEUCCI
United States Attorney
District of Montana
KRIS MCLEAN
Assistant United States Attorney
District of Montana
First Floor
100 North Park Avenue
Helena, Montana 59601
(406) 449-5370
OF COUNSEL:
D. HENRY ELSEN
Assistant Regional Counsel
U.S. Environmental Protection
Agency, Region VIII
Federal Building 301 S. Park
Helena, Montana 5 9626-0096
(406) 441-1150 ext. 266
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CERTIFICATE OF SERVICE
I hereby certiFy that on April 18, 1997, true and correct copy of the foregoing Motion to
Quash Subpoena of the USGS Employee, was served by U.S. Mail, Postage prepaid upon:
William Duffy
Parcel, Mauro Hultin & Spaanstra, P.C.
Suite 3600
1801 California Street
Denver, Colorado 80202-6400
Robert Collins
State of Montana
Department of Justice
Natural Resources Program
Old Livestock Building
1310 East Lockey Avenue
Helena, Montana 59620-1425
Is ’
Counsel for the United States
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DECLARATION
I, John H. Lambing, state the following:
1. I am a hydrologist with the United States Geological Survey (LJSCS).I have worked for
USGS since 1974
2. I have been the project chief for Clark Fork water quality program since the beginning of
the program in 1985. The Clark Fork water quality program is part of the EPA response
action for the Clark Fork River.
3. Among my responsibilities as project chief, I coordinate the scope and direction of surface
water quality monitoring, provide technical oversight to the surface water sampling
conducted by USGS employees of the Montana District, prepare both data and
interpretive reports; provide quality assurance reviews of the data, supervise data
management, and track expenditures of the project.
4 I am not involved in the collection or interpretation of biological or bed sediment data
5. I am not involved in restoration issues at the Clark Fork Sites.
6 The surface water quality data, description of the sampling activities, and available
analytical results for which I am responsible are reported in quarterly reports, annual
report, and five year interpretive reports. The most recent surface water quality data,
which are not yet in a finalized report, is in the most recent Quarterly Progress Report.
These reports are submitted to EPA, who distributes them to ARCO, the State, and other
interested parties.
7. In the spring of 1996, ARCO subpoenaed me for deposition in this case. Authority for my
deposition testimony was limited, according to USGS guidelines, to factual testimony.
8. The deposition took place on April 2, 1996.
9. To the best of my knowledge, no new information has become available since my
deposition, other than the collection of additional data that are available to the public and
ARCO. No additional reports have been approved by the USGS, other than those
described in this declaration
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10. This declaration is made under the provision of Section 1746 of Title 28 of the United
States Civil Code I declare under penalty of perjury that the foregoing is true and
correct to the best of my current knowledge. Executed on April, 1997 at Helena,
Montana.
1sf
JOHN H. LAMB1NG
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9
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li JWOFITANT NOTES
.-
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Topic 9
When State and Federal Law Are Out of Synch
•Speaker Biographies - Mary Beth Gleaves, Gary A.
Jonesi, and Rett Nelson
•Who Implements and Enforces in Authorized States?
•What Requirements are Federally Enforceable in States
with Authorized Programs?
•When Significant Problems Are Alleged in State Program
Adequacy - The “Ohio Review” Experience
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TOPIC 9 BIOGRAPHIES
MARY BETH CLEAVES
Mary Beth Cleaves is an attorney with EPA’S Office of General Counsel,
Solid Waste and Emergency Response Law Office. she is responsible for
counseling and litigation on enforcement issues under the Resource
Conservation and Recovery Act, § 3007, 3008, 3013, and 7003, and on issues
related to applicable or relevant and appropriate requirements at sites
subject to the Comprehensive Environmental Response, Compensation and
Liability Act. Prior to joining SWERLO, Mary Beth worked in the Pesticides
and Toxic Substances Law Office, primarily on the regulation of
biopesticides under Federal Insecticide, Fungicide, and Rodenticide Act,
and the FecIe al Food, Drug, and Cosmetic Act.
Before joining EPA, Mary Beth represented the Department Of Labor
in appellate litigation under the Occupational Safety and Health Act. She
earlier worked as an attorney for the wisconsin Department Of Health and
Human Services, and at a public interest law firm, the Wisconsin Center for
Public Representation, and taught legal writing at the University Of
Wisconsin Law School. For four years, she avoided the law entirely by
sailing in the Caribbean. Mary Beth received a J.D., cum laude, from the
University Of Wisconsin Law School in 1973, and a B.A. in Political Science
and English from the University Of Iowa in 1968.
GARY A. JONESI
Gary Jonesi is the Senior Counsel for Strategic Litigation within EPA’S
Office Of Regulatory Enforcement. He helps to coordinate the effective
litigation of nationally significant civil cases arising under the Agency’s
regulatory enforcement programs, with a particular emphasis on appeals
and crosscutting or cross-media issues. Prior to his current position, Gary
served as a Branch Chief in the RCRA enforcement program at EPA
Headquarters, a Special Trial Attorney working on Clean Air Act NESHAPS
matters for DOJ, a staff attorney working on RCRA and CERCLA matters in
EPA’S Waste Enforcement Division, and as the primary author Of several
RCRA land disposal restriction regulations in EPA’S Office Of Solid Waste.
Before coming to EPA, M . Jonesi was employed by tile New York City
Department of Environmental Protection, the U.S. Patent and Trademark
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Office, and the plaintiffs’ lead trial attorney in the Agent orange class
action product liability litigation. Gary is a graduate of the University Of
Illinois and the Hofstra University School of Law, where he was the Editor
Of the Hofstra Environmental Law Digest. Since 1992, Mr. ionesi has been a
member Of the adjunct faculty at The Catholic university Of America,
where he teaches environmental law.
T. LEVERETT NELSON
Rett Nelson is a Section Chief/Attorney with the Chicago Office Of
Regional Counsel, U.S. EPA Region V. He has been with the U.S. EPA for over
16 years, concentrating first on Superfund and RCRA matters. He now
supervises a legal staff that conducts civil environmental enforcement
under all media (air, water, waste and toxics).
M . Nelson concentrated on environmental law in obtaining his J.D.
from the university Of Colorado (1985). He received his B.A. in English (cum
laude from Carleton College (1981). From 1992 to 1993, he was an Adjunct
Professor of Environmental Law at the DePaul University School Of Law.
From 1995 to 1998, M . Nelson served on the Board Of Directors Of
the Aldo Leopold Foundation, Inc., a not-for-profit environmental group.
He has spoken on a variety of topics relating to the environment to
numerous groups Of lawyers and non-lawyers.
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Thu rsday, April25, 2002
OGC National Counseling Attorneys Conference
WREN STATE AND FEDERAL LAWS ARE OUT OF SYNCH
Gaiy A. Jonesi
Senior Counsel for Strategic Litigation
Office of Regulatory Enforcement
EPA Headquarters, Washington, DC
202-564-4002
Who implements and enforces in authorized states?
Status of challenges to the federal role in light of Harmon Industries and its progeny
A Harmon rulzn contradicts lon2stand:ng EPA interpretation Concerns about EPA’s
ability to maintain its federal role in implementing and enforcing environmental laws in the
states took on added prominence in September 1999, after the U.S. Court of Appeals for
the Eighth Circuit barred a federal RCRA civil penalty action from continuing after a state
settlement involvmg the same conduct, in Harmon Industries v. Browner, 191 F.3d. 894
(gth Cir. 1999). The Eighth Circuit’s ruling (which EPA and DOJ maintain was wrongly
decided), relied on the RCRA § 3006 language providing that states carly out their
authorized programs “in lieu of’ the federal program and that any action taken by an
authorized state has the “same force and effect” as action taken by the EPA Admmistrator
The court also concluded that this statutory language establishes pnvity between EPA and
authorized states, thus barring EPA’s action against Harmon on resjudicata grounds as
well.
B. Defendants ask courts to ap lv Harmon to cases under other statutes Although the
Eighth Circuit’s Harmon ruling was based on the unique language of RCRA, defendants
started arguing that the Harmon rationale should apply to bar federal enforcement under
other environmental laws (e.g., the Clean Water Act and the Clean Air Act) as well as
RCRA.
C. Courts are refusin2 to follow Harmon : So far, the Harmon decision is an aberration It
has not been adopted by other courts to bar federal enforcement in cases brought under
RCRA or other environmental laws. The leading post-Harmon RCRA case thus far is
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US. v. Power Engineering Co., 125 F. Supp. 2d 1050 (D. Cob., Nov. 24, 2000), where
the court, in the most extensive judicial analysis to date, rejected the Harmon rulmg as
both (1) an “incorrect” interpretation of RCRA, slip op. at 15; and (2) as resulting in “an
unsupported expansion of the doctrine of res judicata,” slip op. at 29. The court, thus,
held under the facts of Power Engineering that EPA has the authority to bring a RCR.A
financial responsibility enforcement action even if a state with an authorized hazardous
waste program has taken an enforcement action against the same violator, On April 24,
2001, Power Engineering filed an appeal in the U.S. Court of Appeals for the Tenth
Circuit The United States filed its response brief on October 24, 2001, and oral argument
was held on March 20, 2002.
D State support for EPA ‘s ability to enforce in authorized states : On October 31, 2001,
rune states (Arkansas, California, Connecticut, Illinois, Maine, Montana, New York,
Vermont, and West Virginia) filed in the U.S Court of Appeals for the Tenth Circuit an
amicus curiae bnef in support of EPA’s position in Power Engineering. Among other
arguments, Amici states argued that.
“ [ SJtates have a stTong interest in this Court upholding the district
court’s decision maintaining the longstanding interpretation of
states and EPA that allows RCRA enforcement actions to proceed
to conclusion notwithstanding a pnor settlement by one or the
other sovereign. Were this Court to adopt Harmon and reverse
the district court, a cntical part of the foundation of our
hazardous waste laws -- dual sovereignty -- would be significantly
shaken. Here, nine Amici states representing more than seventy-
five million citizens from coast to coast file this brief to make it
clear that the district court’s ruling rejecting Harmon protects
states and the environment, while Harmon protects violators of
the nation’s environmental laws.”
E. State-federal a reemenrs uniformly allow for federal enforcement : The states’ amicus
curiae brief cited to the fact that eveiy RCRA-authorized state has long had an agreement
with EPA (e.g., an MOA) that clearly preserves EPA’s right to enforce violations without
regard to whether a state has taken action involving the same conduct. The state amicus
curiae brief also demonstrates that strong bipartisan coalitions can be built, and this
case likely will be cited to as a good example of state/federal cooperation. Although
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this case raises primarily RCRA issues, broader resjudicara issues make the Power
Engineering appeal relevant for all enforcement statutes
F Statutory and res iudicata rulzn. s in other cases . in addition to the Power Engineering
case, several courts recently joined the unanimous chorus of federal courts’ that have
declined to extend to other statutes the RCRA overfihing bar established in Harmon. Some
of these court decisions are based primarily on the statutory language at issue, while some
decisions also considered the Harmon court’s secondary basis for precluding subsequent
litigation, z e., based on the common law prmciples of resjudzcaia Both lines of attack
offer useful lessons for EPA counseling attorneys.
(1) Clean WazerAct . On April 23, 2001, the U.S. Distnct Court for the Central
District of Illinois denied defendant’s motion to dismiss in US v. City of Rock
Island, Illinois, 182 F.Supp.2d 690, concluding that the Clean Water Act (CWA)
is worded sufficiently different from RCRA so as to make the Harmon case
inapplicable. The court found that the CWA does not contain the RCRA § 3006
“in lieu of’ or “same force and effect” language that the Harmon court relied on
and noted that “the CWA provides that ‘Federal enforcement [ is] not limited’ and
that nothing in the section authorizing States to have approved permit programs
shall limit the enforcement authority of the EPA. $ 33 U.S.C. § 1342(i)”
(citing US. v City of Youngstown, 109 F Supp.2d 739 (June 28, 2000)). Slip
op. at 8
(2) CleanAirAct : On May 18, 2001, in US. v. Murphy Oil USA, 143 F.Supp. 2d
1054, the U.S. District Court for the Western District of Wisconsin rejected
defendant’s arguments that the Clean Air Act (CAA), Harmon, and resjudicata
barred EPA from enforcing Prevention of Significant Deterioration (PSD)
violations at a Wisconsin petroleum refineiy. In addition to noting that the CAA
does not contain the RCRA § 3006 “in lieu of’ and “same force and effect”
The only court that has adopted the Harmon rationale and applied it to bar a sovereign government’s
enforcement is the Supreme Court of Virginia, which ruled in Stale Water Control Board, et al. v. Smithfield Foods,
Inc., 261 Va. 209, 524 S.E.2d 766 (March 2, 2001), that Virginia is barred from enforcing violations of state water
jiermit requirements where EPA already had concluded a federal enforcement action involving violations of the
company’s federally approved state water permit. EPA had filed an amicus curiae brief in support of Virginia’s
ability to continue its water enforcement action.
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language, the court found that the statutory language affirmatively provides for
federal enforcement of violations that states may have acted upon
“Not only is the act devoid of the language the Eighth Circuit [ in
Harmon] deemed important, § 74 13(3) suggests that Congress
anticipated overfilmg and approved it when it provided that pnor
penalties paid could be taken into consideration m determining
new penalties.” Slip op. at 64.
The court also noted that the legislative history of the 1970 CA.A amendments
“evince a congressional intent to give the federal government
authority to bring enforcement actions to respond to the
‘regrettably slow’ progress that had been made under the
previous statutory framework in which the federal government
was prohibited from bringing an enforcement action unless a
state failed to take appropriate action.” Id.
As to the implications of this legislative history, the court concluded that:
“It would stymie Congress’s efforts to improve enforcement of
the Clean Air Act to hold that the federal government had to
forbear from bringing an enforcement action in any situation in
which the state has undertaken enforcement actions, no matter
how ineffectual or inadequate such actions have been. Additional
support for this conclusion comes from the lack of any reference
in the act to conditions on the taking of federal action, such as a
requirement that the [ EPA] must first evaluate the state’s prior
enforcement efforts or withdraw state authorization before it may
prosecute violations of the act.” Id., at 64-65.
(3) Res ludicata ar2uments On the resjudicata arguments, the Murphy Oil court
began by rejecting EPA’s argument that federal rather than state law on res
judicata applies (an argument that the United States has made consistently at
least since briefing Harmon in 1998-99), but went on to say that this was of no
consequence in this case because Wisconsin and federal res judicata law are
identical on the relevant issues The court then evaluated whether EPA and states
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have an identity of interests, or are in privily with each other, and concluded that
their interests are different
“Under the Clean Air Act, the federal government has
enforcement authority that exceeds that of the states
because Congress recognizes that the interests of the
federal government extend beyond the boundaries of any
particular state” [ citing to 42 U S.C. § 7401 (a), and
741 3((a)(1), (a)(2), and (a)(5)]. Slip op. at 62-63
The “laborin2 oar” test The Murphy Oil court then analyzed whether EPA’s
action is barred under the “laboring oar” test outlined in Montana v United
States, 440 U S. 147 (1979), a case that held that the federal government was
bound by prior state tax litigation in which it was not a party where the federal
government required the filing of the state lawsuit, reviewed and approved of the
complaint, paid attorneys fees and costs, and directed the filing and later
abandonment of an appeal. In Murphy Oil, the court found that EPA had no such
laboring oar in Wisconsin’s prior litigation against this refinery Instead, it
concluded that EPA was not bound to the state action because it did not control,
substantially participate in, or have a laboring oar in the prior state litigation
siIlply by virtue of its being aware of the state’s plan to enforce against Murphy
Oil, receiving a copy of the complaint immediately after filing, touring the refinery
just before the state file its complaint, and agreeing to closely monitor the state’s
case to see if federal action would be needed. Slip op. at 65-66.
(4) RCR.4 ar2uments The same Murphy Oil decision also squarely addressed, and
rejected, the defendant’s Harmon arguments as applied to RCRA, making it the
third federal court to do so in a hazardous waste context. Specifically, the court
found the Harmon ruling “unpersuasive” (slip op. at 115) and adopted the Power
Engineering court’s conclusion that “the Harmon Industries decision rested on a
flawed interpretation of the act.” Slip op. at 116. The court also concluded that
RCR.A unambiguously “authorizes the federal government to bring enforcement
actions in states authorized to implement and enforce the hazardous waste
program, provided only that notice is given to the state [ emphasis added]” (slip op.
at 118), but noted that even if RCRA were viewed as ambiguous it would defer to
the Agency’s interpretation as reasonable under Chevron USA, Inc. v NRDC,
467 U.S. 837 (1984).
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Below are a few of the more significant quotes from the court
- “1 disagree with the conclusion that giving states authority to
implement and enforce the hazardous waste program gives the
states the sole right of enforcement under the act unless the EPA
withdraws a state’s authorization or the state fails to take any
enforcement action.” Slip op. at 115-116.
- “I believe that the [ Harmon] court read too much mto the
phrases ‘in lieu of and ‘same force and effect’ and at the same time
gave inadequate effect to the provisions in the statute that
demonstrate Congress’ intent to give the EPA its own independent
enforcement authonty even in states that have authonzed
hazardous waste programs.” Slip op at 116.
- “The phrase, ‘same force and effect’ [ in RCRA section 3006]
appears under the heading. ‘Effect of State permit,’ implicitly
limiting it to permits and indicating only that state-licensed
permits will have the same force and effect as federal permits. In
Harmon Industries , the court of appeals determined that the
heading was of no moment. * * * This disregard for the heading
undermines the [ 8th Circuit] Court’s conclusion. Statutes are to be
read to give effect to every word, wherever possible.
Disregarding a title runs the nsk of missing the meaning of the
statute” Slip op. at 117.
- “Knowing the significance of permits in the hazardous waste
program, Congress intended to give certainty to permit holders
that if they complied with the terms of their state-issued permits
they would not be prosecuted by either the state or the federal
government.” Slip op. at 118.
(5) Another recent win/br EPA : On March 29, 2002, the U.S. District Court for the
District of Wyoming denied defendants’ summary judgment motion in a case
involving Clean Air Act particulate en ission violations at a coke production
facility in Rock Springs, Wyoming. U.S. v. Soluna et al., No. 00-C V-046-D (D.
Wyo.). In rejecting Solutia’s attempts to bar this CAA action on Harmon and res
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judicara grounds, the court noted that it “is persuaded by the analysis and fmdmgs
set forth in Murphy Oil and Power Engineering, “slip op at 13-14, and it
charactenzed the Power Engineering decision as a “thorough and well-reasoned
analysis “Id, at 12 The court also concluded that EPA had no laboring oar in
the state’s case and, thus, is not bound by the state’s earlier settlement
(6) Favorable ruling at the appellate level . The only federal appeals court that has
ruled on these issues since the September 1999 Harmon ruling has ruled in EPA’s
favor On October 23, 2001, the U.S Court of Appeals for the Ninth Circuit
declined to apply Harmon to bar EPA from enforcing RCRA violations in a state
that is authorized to implement and enforce a federally approved environmental
program, and it became the first federal appeals court to openly cnticize Harmon
In US v Elias, 269 F.3d 1003 ( 9 th Cir. Oct 23, 2001), the Ninth Circuit rejected
a cnminal defendant’s arguments that the court should overturn its 17-year jail
sentence for illegal disposal and knowing endangerment. Despite the lack of any
previous state action, Elias aggressively med to extend Harmon, arguing that
once EPA authorized the Idaho hazardous waste program pursuant to RCRA §
3006, state law supplanted federal law and stnpped EPA of authonty to enforce
RCRA. The court reconciled the RCRA § 3006 “in lieu of” language with the
RORA § 3008 federal enforcement provision and concluded that Harmon “does
not support Elias’ contention that federal law is supplanted or that the United
States lacks power to try him” and added in a footnote that Harmon “is also
suspect for its marked lack of Chevron deference.” Slip op. at 15, fn. 25. The
court also made clear that “under RCR.A, the federal government retains both its
criminal and civil enforcement powers * * * even where a state law counterpart
exists.” Slip op. at 17.
II. Minimizing potential res ,udzcata and other problems in state-federal agreements and authorization
r,ackages
State-federal agreements and state program authorization documents can unwittingly bolster a
potential Harmon-type defense if we are not careful in the language that we use in such documents The
confidential chart below is not exhaustive, but it does provide some examples of potentially problematic
provisions in these documents and suggests ways to avoid such problems.
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Things to Avoid
PTeferred Approach
Characterizing the state-federal relationship as a
“delegation” -
Characterizing the state-federal relationship as an
“approval” or “authorization” as appropriate
under federal law
Characterizing the state as an “agent” of EPA
Characterizing the state and federal governments
as independent sovereigns
Stating that EPA enforces state law or regulations
m an authorized or approved state
Clarifying that EPA enforces federal law using
federal enforcement authorities and federal
penalties in an authorized or approved state, and
that the federal requirements may be codified in
state codes
Stating that an authorized state acts “in lieu of”
EPA
Making it clear that the state and EPA derive their
authonty from separate sources and that neither
acts m lieu of the other
Characterizing EPA’s enforcement role as
“secondary” or as a “backup” to the state
Clarifying that EPA may give additional deference
to an authorized or approved state, provided the
state takes timely and appropriate enforcement
action
Not stating who decides whether state enforcemen
action is timely and appropriate, or implicitly or
expressly providing that the state has some role in
this determination
Stating clearly that EPA determines whether state
enforcement action is timely and appropriate
Not providing an express yeservation of EPA’s
right to enforce
Providing an express reservation of EPA’s nght ti
enforce
Implicitly or expressly limiting EPA’s federal
enforcement authority to certain listed
circumstances
Providing examples of situations where federal
enforcement authority is appropriate, while clean’
stating that such a list is not exhaustive
Describing cooperative enforcement activities that
would create a privity relationship between EPA
and the state (e.g., substantial state or federal
involvement in the other sovereign’s enforcement
litigation)
Describing cooperative activities that EPA and th
state could take, but clarifying that each sovereign
makes its own litigation decisions
.
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Thursday, April 25, 2002
Second National Counseling Attorneys Conference
WHEN STATE AND FEDERAL LAWS ARE OUT OF SYNCH
Maiy E. Gleaves, Senior Attorney
Office of General Counsel
Solid Waste and Emergency Response
Law Office
Washington, D C.
(202) 564-5508
1 Overview - What is Federally Enforceable in States with Programs Authorized Pursuant to
RCRA Subtitle C? ’
A. Generally in a state with an authorized program, EPA enforces “requirements”
governing the management of hazardous waste that are issued by that state
These requirements may be found in.
‘This presentation focuses on the federal enforceability of state-issued requirements under
RCRA Subtitle C, but the Clean Air Act (CAA) and Clean Water Act (CWA) operates in a similar
fashion. Under the CAA, EPA issues national ambient air quality standards. A state adopts
statutes and regulations aimed at meeting these national standards which it submits to EPA for
approval. Once EPA approves the submission, those state requirements become the State
Implementation Plan (SIP) which is federally enforceable under the CAA, as well as under state
law. CAA § 110 and 113. Similarly, states submit operating permit programs under title V of
the CAA, which, when approved by EPA, become federally-enforceable permit programs. CAA
§ 766a-7661f. Finally, several requirements under the CAA — including the Title IV Acid Rain,
Section 111 New Source Performance Standards, and Section 112 Maximum Achievable Control
Technology requirements — are directly enforceable by the federal government. Under the CWA, a
state may submit its permit program for discharges into navigable waters within its jurisdiction
When EPA approves a state’s national pollutant discharge elimination system (NPDES) permit
program, then the conditions or limitations of the state-issued permit becomes federally
enforceable. CWA § 402 and 309. But under certain circumstances, if a state has commenced
and is diligently prosecuting an action under state law, the CWA prohibits federal civil
enforcement action. CWA § 309(g)(6); U.S. v Smithfield Foods. Inc. , 191 F 3d (4th Cir 1999).
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I State-issued regulations, or a combination of state-issued statutes and
regulations, that are authorized by EPA,
2 State-issued permits where EPA has authorized the state to issue such
permits.
B Authorization does not necessarily mean that the federal government enforces
p y authorized state-issued requirements In some situations, the federal
government may continue to enforce some requirements enacted by the U S
Congress in RCRA, or requirements issued by EPA. These requirements may be
found in
I RCRA Subtitle C,
2 EPA-issued regulations, and
3 EPA-issued permits, or portions of permits issued jointly with the state.
C. EPA does not authorize every state statute or regulation that concerns hazardous
waste management.
1. EPA does not authorize state statutes that make it a crime to violate certain
hazardous waste laws, or that establish penalties for civil and criminal
violations of state hazardous waste laws. Such state laws never are
“federally enforceable” under RCRA
2. Similarly, EPA does not authorize state statutes that establish the right to
inspect facilities that manage hazardous waste or that allow a state agency
to issue administrative orders or to seek state court orders requiring the
monitoring or cleanup of hazardous waste. Those types of state laws are
not “federally enforceable.”
D The effect of authorization varies somewhat among different EPA statutes, so it is
important to consider each statutory scheme independently. To research the status
of a state-issued requirement, the language of the particular federal statute at issue
should be considered, including the provisions governing authorization of state
programs and state permits, granting EPA civil enforcement authority, and
establishing crimes. Other useful sources of information include EPA regulations
governing authorization under the statute, the Federal Register and the Code of
Federal Regulations for notices and regulations governing authorization of specific
state programs and permitting, EPA agreements with the state concerning
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authorization and enforcement, EPA guidance documents and internal memoranda,
and EAB and court decisions in EPA and DOJ enforcement actions and citizen
suits.
Ii. Enforcement in States Without Authorized RCRA Program
A. The regulated community is subject to requirements in statutes enacted by the U S
Congress, regulations promulgated by EPA, and permits issued by EPA.
Example -- a facility that disposes of hazardous waste is subject to RCRA
§ 3005, which requires the facility owner/operator to obtain a permit from
EPA, and to RCRA Subtitle C regulations at 40 C.F.R Pts 260-61, 264-
65, and 270, which generally impose substantive requirements on facilities
that dispose of hazardous waste. Once EPA issues a RCRA permit, then
the facility is subject to the requirements in the permit
B When the federal government brings a civil enforcement action, the federal statute
identifies the requirements that the government may enforce in the action, and the
penalty that the government may seek to impose.
Example -- RCRA § 3008(a)(1) authorizes EPA to commence a civil action
upon a determination that any person is in violation of “any requirement”
of RCRA Subtitle C, and RCRA § 3008(a)(3) authorizes a penalty “not to
exceed $25,500 per day of noncompliance for each violation of a
requirement” of Subtitle C.
C. When the federal government brings a criminal action, the federal statutes define
the crime and establish the penalty.
Example -- RCRA § 3008(d)(2) states that “any person who knowingly
disposes of any hazardous waste identified or listed under this subchapter
without a permit under this subchapter. shall, upon conviction, be
subject to a fine of not more than $50,000 for each day of violation, or
imprisonment not to exceed . . five years”
III Enforcement In States With Authorized RCRA Programs
A In general, the federal government enforces requirements in authorized state-issued
regulations/statutes, and in state-issued permits, rather than federally-issued
regulations/statutes and permits. In effect, authorized state-issued requirements
are “federalized” and become federally enforceable.
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B Federally-enforceable requirements may be in regulations promulgated by a state
agency, as well as in statutes enacted by the state legislature 40 C.F.R.
§271 5(a)(5)(stating that state programs submitted for authorization must include
“applicable [ s]tate statutes and regulations.”)
Example -- RCRA regulations at 40 C F.R Part 261 define “hazardous
waste.” EPA has authorized Idaho’s hazardous waste program, including
the Idaho regulation at IDAPA 16.01.05 005 (1997) that defines
“hazardous waste” 40 C FR. § 272.65 1, Appendix A. Pursuant to RCRA
§ 3006(b), when EPA authorizes a requirement in a state regulatory
program, that requirement operates “in lieu of” the requirement in the
federal regulatory program Thus when EPA brings a civil action to
penalize a facility that is disposing of “hazardous waste” for operating
without a permit or interim status, EPA would rely on the Idaho regulation,
to establish that the material in question was a “hazardous waste.” EPA
would not rely of the definition of hazardous waste in EPA-issued
regulations, as it would in a state without an authorized program
Example -- EPA authorizes a state’s hazardous waste program, including a
state statute that simply adopts EPA’s RCR.A Subtitle C regulations. In an
enforcement action, EPA would rely on the state statute to establish the
definition of “hazardous waste”
C Federally-enforceable requirements also may be in permits issued by a state,
provided EPA has authorized that state to issue permits under RCRA § 3 006(b).
EPA may enforce these permits as requirements of RCRA. RCRA § 3005(d) and
3008(a); 40 C.F R § 271.19(e).
Example -- Once EPA authorized Idaho to issue and enforce hazardous
waste permits, any new facility that disposed of hazardous waste would
have to obtain a permit from Idaho, but not from EPA. Both EPA and the
state may enforce the permit. RCRA § 3006(b) and (d), 40 C.F.R. §
271.1(f) and 271.19.
D Authorized state-issued requirements have a dual role: they are federal
requirements enforceable by EPA in federal court, and also remain state
requirements enforceable by the state in state courts. Thus a party complying with
authorized state requirements is complying with federal requirements as well.
E Authorization does not supplant all federally-issued requirements. In many states,
the federally-enforceable requirements consist of a mixture of authorized, state-
issued requirements and federally-issued requirements.
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1. Many statutory requirements in RCRA Subtitle C remain in effectS
a. The oniy statutory requirements that may be supplanted by
authorization are those provisions in RCRA Subtitle C that are part
of the Hazardous and Solid Waste Amendments of 1984
(“HSWA”), and that were not implemented via EPA regulations
For example, the permit requirement for treatment, storage, and
disposal facilities in RCRA § 3005(a) is not part of HSWA and so it
remains in effect even in states authorized programs. 2
b. Statutory provisions related to EPA authority continue in effect,
including RCRA § 3007 - inspections, § 3013 - monitoring,
analysis, and testing, § 3 008(h) - interim status corrective action
orders, and § 7003 - imminent hazard orders.
2. EPA regulations promulgated under HSWA take effect in all states,
regardless of authorization. Those regulations remain in effect until EPA
authorizes equivalent state-issued requirements. RCRA § 3006(g), 40
C.F.R § 271.3(b)
Example -- Under RCRA, EPA amends its regulations to add a
waste to the list of hazardous wastes under the authority HSWA.
When the regulation takes effect, that waste becomes a listed
hazardous waste in all states, even if the authorized state
regulation/statute does not list that substance as hazardous waste
Until EPA authorizes a state regulation/statute defining that waste
as a “hazardous waste,” EPA would rely on the EPA listing
regulation to establish that the particular waste is a “hazardous
waste”
F. Authorization does not supplant the federal enforcement or penalty provisions
cases discussed below, including United States v Elias , 269 F.3d 1003(9th
Cir. 2001), petition for cert. filed (April 2002).
2 Upon authorization, a state hazardous waste program operates in lieu of the “federal
program.” RCRA § 3006(b). The “federal program,” which may be supplanted by an authorized
state program, includes: (1) hazardous waste management regulations promulgated by EPA
under Subtitle C; and (2) provisions of the Hazardous and Solid Waste Amendments of 1984 that
were not implemented via EPA regulations 40 C.F R. Part 271; and Brief of the United
States as Amicus Curiae in Williams v. Alabama Dept of Transportation . No 00-D-
1077N(April 2001). i citizens suit cases cited below
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IV Some Court Decisions Considering “What” Should Be Enforced
A RCRA Civil Actions
I In civil actions to enforce RCRA Subtitle C requirements pursuant to §
3 008(a), courts have consistently held that requirements in authorized,
state-issued regulations and statutes, and in permits issued by states with
authorization, are federally enforceable . .g, United States v.
Conservation Chemical Co. , 660 F. Supp. 1236, 1239 (ND. md.
I 987)(EPA can enforce requirements in authorized state program); United
States v Environmental Waste Control. Inc . 698 F. Supp. 1422, 1427
(N.D. md. 1988)(same); Waste Management of Illinois. Inc. v. United
States , 714 F Supp 340, 341 (N D Ill. 1989)(EPA can enforce
requirements in authorized requirements in state programs) i cases
discussed below when citizens seek to enforce RCRA.
2 In civil actions to enforce orders under RCRA § 3008(h), 3013, and 7003,
authorization is irrelevant because EPA does not authorize such provisions.
Even if a state has an equivalent order authority under state law, the state-
issued provision does not supplant the federal statute. Wyckoff Co v.
EPA , 796 F 2d 1197, 1200-01 (9th Cir. 1986)(EPA may issue order under
RCRA § 3013 requiring monitoring even after authorization), United
States v. AK Steel Corp. , No C-1-00-687 (filed S D. Ohio, June 29,
2000)(decision pending federal enforcement of RCRA § 3008(h) in
authorized state).
B RCRA Criminal Cases . In criminal cases, courts have held that RCRA § 3 008(d)
and (e), which establish crimes and penalties, continue to apply and are not
supplanted by state laws. The substantive requirements in authorized state-issued
regulations/statutes, however, continue in effect For example, § 3008(d)(2)
establishes that it is a felony for any person to knowingly disposes of any
hazardous waste listed under Subtitle C without a permit under Subtitle C That
federally-enacted provision remains in effect in a state with an authorized program,
and the criminal indictment would cite § 3008(d)(2) as the source of the criminal
prohibition and penalty. However, to establish whether there was a hazardous
waste listed under RCRA Subtitle C, the government would rely on the authorized
state-issued requirement listing the waste.
I United States v. Elias , 269 F.3d 1003(9th Cir. 2001), petition for cerl.
filed (April 3, 2002).
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a. The indictment charged the defendant with criminal violations of
RCRA § 3 008(d), and sought the federal penalty which makes the
violations felonies
b. The Ninth Circuit decided that the federal proscription against
disposing of a hazardous waste without a permit in RCRA §
3008(d) remains in effect after authorization, as does the federal
penalty What changes is the definition of hazardous waste and the
sovereign from whom the permit must be obtained. In other words
the indictment properly charged a violation of RCRA § 3008(d)
against disposing of hazardous waste without a permit. Authorized
Idaho regulations, however, govern the definition of “hazardous
waste,” and whether the disposer had a permit depends on whether
Idaho, not EPA, had issued a permit
2. U.S. v. Flanagan , 126 F. Supp.2d 1284, 1288 (C.D. Cal. 2000) The
district court stated that the criminal proscriptions in RCRA
§ 3008 are not supplanted by state law via authorization, although
authorization does result in punishment of conduct defined in terms of
state law.
3 U.s. v. MacDonald & Watson Waste Oil Co. , 933 F.2d 35, 44 (1 l Cir.
1991). The defendants alleged that the district court lacked jurisdiction
over RCRA charges because Rhode Island’s authorized program displaced
the federal program. The circuit court concluded that RCRA § 3008(d)
does not limit prosecutions to those who lack a federal permit. Rather the
statute criminalizes any person or facility who lacks a “permit under this
subchapter,” i.e., one issued by EPA or by an authorized state
C. RCRA Citizen Suit Actions under 7002 . Courts in citizens suits often must
consider whether a state-issued requirement being enforced in a state with an
auihorized program is enforceable in federal court, or only in state court. This is
because RCRA § 7002 only authorizes a citizen suit against a person alleged to be
in violation of a permit, standard, regulation, condition, requirement, prohibition,
or order “which has become effective pursuant to [ RCRA].”
Some courts have decided, consistent with EPA’s position, that the
requirements of a state’s authorized program are requirements of RCRA
that may be enforced in federal district court. çç, çg , Lutz v.
Chromatex. Inc. , 725 F. Supp. 258, 262 (M.D. Penn. 1989) (holding citizen
suit proper under RCRA § 7002(a)(l)(A) if it alleges violations of
authorized state hazardous waste statute rather than superseded federal
statute); Glazer v. American Ecolo v Environmental Services Corp. , 894
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F. Supp 1029, 1040 (E D.Tex I 995)(”plaintiffs may enforce Texas’
hazardous waste program by bringing a citizen suit in federal district court
under RCRA § 7002(a)(1)(A).”). 3
2 A few courts have decided that a state’s authorized program is not a
requirement of RCRA that may be enforced in federal district court.
gL, Thompson v. Thomas , 680 F. Supp. 1, 3 (D. D.C. 1987)(violations
by 3M of the authorized Wisconsin hazardous waste regulations may only
be brought in the Wisconsin state court), Williamsburgh-Around-the
Bridge Block Ass’n v. New York Department of Environmental
Conservation , 30 E R.C 1188 (ND. NY. 1989)(questions concerning a
hazardous waste permit issued under by the authorized state do not raise a
federal question because the answer depends solely on state law which
operates in lieu of the federal law).
V. Using EPA Authorization to Clarify What Laws are Federally Enforceable
A The authorization process plays a critical role in identifying which requirements
apply in a given state.
B Under RCRA, EPA first gives notice of authorization actions in the Federal
Register , using direct final rules, and then codifies the authorization in the Code of
Federal Regulations 40 C.F.R Part 272 Although most states have authorized
programs, the authorization has not been codified in many cases. Even where
codification has occurred, it is usually not current because of changes in the
authorized program that take place after codification.
3 Citizen suits are usually argued and decided without EPA participation As a result,
courts’ conclusions regarding which provisions “become effective pursuant to RCRA,” and thus
enforceable by citizens, are not always consistent with EPA’s views. For example, a number of
district courts have conclude that authorization supplants the permit requirement in RCRA
§ 3005(a), but EPA would not agree with that conclusion. Murray v. Bath Iron Works
Co . , 867 F.Supp 33, 42 (D. Me. 1994)
4 Dague v. City of Burlington , 935 F2d 1343, 1353 (2d Cir 1991), rev’d in part on other
grounds, 505 US 557 (1992), is frequently cited as supporting the position that authorized state
requirements may not be enforced in federal courts, but in EPA’s view, the Second Circuit did not
reach the issue.
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C. The authorization process is important because it gives notice to the regulated
community of the requirements governing hazardous waste management in a state
with an authorized program
I In a state without an authorized program, regulated entities receive notice
of federally-issued regulatory requirements via the APA rulemaking
process, which provides both notice and an opportunity to comment before
the rule becomes final.
2. In a state with an authorized program, however, state-issued requirements
replace some of those federally-issued requirements. These authorized,
state-issued requirements often are not identical to the supplanted
federally-issued requirements They also may impose more stringent
requirements. See RCRA § 3009, 40 C FR. § 272 I(i)(1)(allowing state-
issued requirements that are more stringent than federally-issued
requirements)
3. The authorization process provides notice to the regulated community of
the requirements that govern hazardous waste management following
authorization This notice is particularly important where the authorized
state-issued requirement is more stringent than the federally-issued
requirement, because, without that notice, the federal government would
be enforcing a requirement, and possibly seeking penalties for
noncompliance with a requirement, that arguably was established without
notice and comment
D The authorization process also is important because it helps identify the federally-
issued requirements that are supplanted by authorization and those that continue
despite authorization
1. In a state with an authorized program, RCRA hazardous waste
management requirements usually consist of a mixture of state-issued
requirements that have been authorized by EPA, and federally-issued
requirements that are still in effect.
E. Both the Federal Register notices and C F.R codification can help defend against
allegations that the subject of an enforcement action is being penalized for a
requirement when it lacked fair notice of that requirement. To help defend against
such claims it helps if the notices and codifications identify the specific state-issue
requirement that are authorized and the federally-issued requirements that are
supplanted by those authorized state-issued requirements. Prompt codification,
and updating existing codifications is also very important.
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VI impact of Revisions to the Authorized State-issued Requirements
A. State-issued requirements may be modified when a state legislature revises
statutes, a state agency modifies an regulation via rulemaking, or a state agency or
court interprets a statute or regulation in an adjudication Such revisions could
make the state requirement (1) more stringent than the authorized state-issued
requirement, (2) less stringent than the authorized state-issued requirement but
still as stringent as the federally-issued requirement, or (3) less stringent than both
the authorized state-issued and federally-issued requirements.
B States continually modif ’ statutes and regulations in response to internal decisions
by the state legislature or state agency or to revisions in EPA-issued requirements.
States revisions range from insignificant to substantial. For example a state may
simply renumber requirements without changing their substantive requirements, or
may repeal all its regulations, replacing them with regulations less stringent than
the original, authorized version.
C. Generally the new, revised state requirements do not take effect jj jl EPA has
authorized the revision The originally authorized program remains in effect as the
federal requirement that is federally enforceable. As a result, a regulated entity
may be subject to federal enforcement of an authorized state-issued requirement
that is actually more stringent than the current, but unauthorized, state law or than
the current, but supplanted, federally-issued requirement.
I Revisions to the state program are not effective until EPA authorizes the
revision because of EPA regulations, 40 C F.R § 271.21. The regulation
requires the state to submit a modified program description and other
documents to EPA. Then EPA must provide public notice of the revisions
and an opportunity to comment before acting. EPA’s authorization of the
revisions becomes effective only after publication in the Federal Register. 5
D To the extent that the revision makes the program less stringent than state
programs authorized by EPA, RCRA § 3009 preempts those requirements and
EPA can not authorize the revision.
5 Since at least 1982, EPA has interpreted § 271.21 as leaving the state-issued program in
place, as authorized, until EPA approves the state’s revisions Memorandum, “EPA Enforcement
of RCRA-Authorized State Hazardous Waste Laws and Regulations,” William Sullivan,
Enforcement Counsel (March 15, 1982). In 1983, EPA considered, and rejected, allowing
enforcement of revised state-issued requirements before EPA approved the revisions. 48 Fed.
Reg. 14146 (April 1, 1983).
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E. There are no reported decisions addressing whether the federal government may
enforce an state-issued requirement under RCRA after the state revises that
requirement and EPA approval of the revision is pending. But this issue has been
litigated under the CAA, and those decisions provide support for EPA’s position
that the authorized requirement remains federally enforceable until the revision is
approved.
I General Motors Corp. v. U.S. , 496 U.S. 53 (1990)(Based on language in
the CAA, “the approved [ SIP] is the applicable implementation plan during
the time a [ SIP] revision proposal is pending.”).
2. U.S v. Murphy Oil USA. mc , 143 F Supp 2d 1054, 1100 (W D Wis.
2001 )(The federal government could bring a civil enforcement action under
the CAA for violation of a state regulation that was part of the approved
SIP, even though the state subsequently repealed that regulation.
“ [ O]therwise, the approval process would be largely meaningless because a
state could change its regulations after the [ SIP] was approved.”).
F. Even though there is some support for enforcing authorized state-issued
requirements after revision but before EPA approval, some courts may find this
position difficult to accept in some enforcement actions, particularly where
respondent’s behavior would not be in violation of the revised requirement, or
where the approval process is drawn out
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Rett Nelson’
U.S. EPA, Region 5, ORC
312-886-6666
April 25, 2002
When State and Federal Laws Are Out of Synch
When Significant Problems Are Alleged in State Program Adequacy
The “Ohio Review” Experience
Since January 2000, U.S. EPA Region 5 has been conducting reviews of a number of federal
environmental programs administered by the Ohio Environmental Protection Agency (OEPA) in
response to a petition submitted by four Ohio environmental groups expressing concerns with
Ohio’s environmental programs and requesting that U.S. EPA withdraw and/or revoke its
authorization, delegation and/or approval of these programs. Region 5 has conducted its reviews,
prepared a draft report, and taken public comment on the draft report. After considering the
public comments, Region 5 will compile an administrative record and prepare a final report. The
agency will then decide whether to initiate withdrawal and/or revocation proceedings.
I. SCOPE
The petition, as amended, expresses concerns with eight programs:
Clean Air Act
(1) Title V program
(2) Prevention of Significant Deterioration (PSD) program
(3) New Source Review (NSR) program
(4) New Source Performance Standards (NSPS) program
(5) Noncompliance penalties
Clean Water Act
(6) National Pollutant Discharge Elimination System (NPDES) permit program
Resource Conservation and Recovery Act
(7) Hazardous Waste (Subtitle C) program
(8) Solid Waste (Subtitle D) program
II. BACKGROUND
Petitioners are:
Ohio Citizen Action
Ohio Environmental Council (later replaced by Ohio PIRG)
Rivers Unlimited
Ohio Sierra Club
‘Based in part on materials prepared by Maria Gonzalez and by Bertram Frey, R5 ORC
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Timeline .
1/28/97: Petitioners file petition claiming the Ohio Audit Law required revocation of
Ohio’s authorization and/or approval to administer:
CAA Title V
CWA T PDES
RCRA Subtitle C
9/18/98 Petitioners supplement the petition to add other implementation concerns
regarding these three programs
9/30/98: State of Ohio revises audit law, resolving EPA concerns regarding audit law
8/4/99. Petitioners supplement the petition to add still more implementation concerns
regarding the three programs
1/27/00: Petitioners supplement petition to add implementation concerns regarding five
additional program areas: CAA (PSD, NSR, NSPS, Permits) and RCRA (Subtitle D)
12/21/00 EPA denies the component of the petition alleging legal authority deficiencies in
Ohio’s audit law
8/30/01: Region 5 issues draft report with initial findings and recommendations
11/13/01 Two public meetings held in Columbus, Ohio
1/14/02: Comment period ends
4/30/02 (estimated): Region responds to comments and issues final report
6/30/02 (estimated): EPA issues a decision to either deny the petition or to initiate
withdrawal/revocation
ifi. W1THDRAWALTREVOCATION AUTHORITIES
A. CAA
1. Title V : The criteria for withdrawal and the withdrawal procedures are articulated in
section 502(1) of the CAA and in the regulations at 40 C.F.R. § 70.10.
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2. Ohio does not have an approved state PSD SIP program. Instead, EPA
approved federal PSD regulations as a part of the Ohio SIP The Regional Administrator (RA)
directly delegated to OEPA authority to implement the federal PSD regulations. The delegation
document contains the relevant programmatic and revocation criteria. Paragraph 3 states that the
RA may revoke the delegation in part or in whole, after consultation with OEPA, if he determines
that the State is not implementing or enforcing the PSD program or has not implemented the
requirements or guidance in respect to a specific permit.
3. NSR Since Ohio’s NSR program is part of its approved SIP, consequences for any
failure by Ohio to implement or enforce its NSR program fall under the regulatory provisions for
SIP deficiencies. Under these provisions, EPA can call for a SIP revision when it finds that the
plan is substantially inadequate to attain or maintain the NAAQS or otherwise comply with the
requirements of the CAA. 42 U.S C § I 1O(k)(5). Also, the Administrator could disapprove a
state’s SIP, in whole or in part, and establish a federal implementation plan (FIP) in its place
4. NSPS : Section 111(c) of the CAA allows each state to develop and submit to EPA a
procedure for implementing and enforcing standards of performance for new stationary sources
(NSPS) located in the state. EPA delegated its authority to implement and enforce the NSPS
program to OEPA The delegation document contains the relevant programmatic and revocation
criteria. The NSPS delegation document requires the State to notif j the RA if it determines that,
for any reason, it is unable to aLlminister the program with respect to any new or existing NSPS
Upon such notification, the primary responsibility for enforcing the NSPS returns to EPA. The
delegation document states that if; after appropriate discussion with OEPA, the RA determines
that an Ohio procedure for implementing and enforcing the NSPS is not in compliance with the
federal regulations, or is not being carried out effectively, EPA can revoke the delegation in whole
or in part.
5. Noncompliance penalties . Region 5 can find no evidence that Ohio ever submitted an
application or request to EPA to administer the CAA § 120 non-compliance penalty program It
therefore appears that the non-compliance penalty program has never been delegated to Ohio.
However, penalty authority is a required element of all the various delegated and approved State
air programs, and Region 5 examined the sufficiency of penalty assessments as part of its review
of the other air programs.
B. CWANPDES
The criteria for withdrawal of state NPDES programs are at 40 C.F.R. § 123.63. The
procedures for withdrawal of state NPDES programs are at 40 C.F.R. § 123.64.
C. RCRA
1. Hazardous Waste : The criteria and procedures for withdrawal of a State’s hazardous
waste program are found in 40 C.F.R. § 271.22 and 271.23.
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2. Solid Waste : The criteria and procedures for withdrawal of a determination of
adequacy related to a State Municipal Solid Waste Landfill (MSWLF) permit program are found
in 40 C.F.R. § 239.13
1V. REGIONAL ADMII ISTRATOR’S AUTHORITY TO WITHDRAW/REVOKE A
STATE PROGRAM
Assuming arguendo that the criteria for withdrawal are met for a given program, does the Region
have the authority to decide to “grant” the petition and to initiate withdrawallrevocation
proceedings? Or must an official in HQ decide? If, on the other hand, Regional staff were to find
that the allegations in the petition were without merit, who in EPA has the authority to make an
affirmative decision to initiate withdrawal/revocation proceedings? A look at the relevant HQ
delegations reveals some surprising conclusions.
A. CAA
Title V HQ Delegation # 7-1 14(1)(c)
: HQ Delegation #s 7-62(1)(a); 7-62(I)(b); 7-67; 7-109
i $ : HQ Delegation # 7-25
NSR : HQ Delegation #s 7-3; 7-37
NSPS . HQ Delegation #s 7-2; 7-10(1)(c)
Non-compliance penalties : HQ Delegation #s 7-42; 7-48
The delegations for the five CAA programs do specit that the RA, for example, may delegate the
authority to administer a Title V operating permits program to the state, make completeness
determinations on state SIPs, delegate authority to a state for preconstruction review of new or
modified stationary sources, and so on. But they are silent about program withdrawal/revocation.
Conclusion: The RA may not be able to deny a petition. However, the RA may have authority
to withdraw the Title V program, based on an inference from the “limitation” section of the
delegation (requiring HQ concurrence)
B. CWA
NPDES : HQ Delegation # 2-34(1)(g): “Authority ... to deny, in whole, or in part, petitions to
withdraw approval of State NPDES programs ... delegated to Regional Administrators.”
Does not mention authority to withdraw the program
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Conclusion: RA can deny a petition to withdraw a State NPDES program, but may not be able to
withdraw the program.
C. RCRA
RCRA C : HQ Delegation 8-7: “Authority ... to perform all actions necessary to approve,
disapprove or withdraw interim or final authorizations of State hazardous waste programs.. is
delegated to Regional Administrators.”
Does not mention authority to deny petition.
Conclusion: RA may not be able to deny a petition, but can withdraw the State’s authorization
(note: opposite of CWA authority, above).
RCRA D : HQ Delegation # 8-1; 8-46
Does not specifically mention authority to withdraw or to deny petition.
Conclusion: RA may not be able to either withdraw the RCRA D program or deny a petition.
NEXT STEPS : The RA may request the Administrator to grant him a temporary delegation to
both 1) deny petitions to withdraw/revoke and 2) initiate withdrawal proceedings in all program
areas included in the Ohio petition. The “temporary” delegation would expire on a date certain.
V. PROCESS FOR INVESTIGATION
A. People
-Over 40 regional employees conducted the reviews, a very high number which may not
be typical
-Media-specific program personnel took on work in their media-specific area of expertise
-Media-specific counseling attorneys worked with their program counterparts
-Each media-specific EPA team worked with a media-specific state team, with a primary
state point of contact
- Office of Public Affairs was heavily involved
- Periodic briefings were held for the RA
B. Places
-EPA program staff developed a protocol for investigation of the allegations, which
included: (1) file reviews in the Ohio offices (including state headquarters, regional and district
offices); (2) interviews with state personnel; and (3) written information requests to the state
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The goal. to determine whether there was substantive information sufficient to indicate that the
state program might no longer be adequate.
-EPA civil legal staff met in Ohio with the Ohio Attorney General and OEPA legal staff to
assess enforcement authorities, legal staffing levels, and enforcement performance over the five
years before the amended petition was submitted The legal review of the criminal program did
not include face-to-face meetings
-EPA set up repositories of the administrative record throughout Ohio
-Numerous EPA staff attended the two November 13, 2001, public meetings in Columbus.
-EPA received over 6,000 comments, mainly from concerned Ohio citizens, during the 60-
day public comment period.
C. Things
-EPA created an electronic index to the administrative record that was updated as items
were added to the administrative record
-EPA created a web site for the Ohio review: www e pa gov/region5/ohioreview The web
site includes key documents, the administrative record index, a projected schedule of activities,
links to the State’s and petitioners’ web sites, notices of the public meetings, locations of the
repositories, and so on.
-The administrative record so far consists mainly of:
- the petition(s)
- the protocols
- trip reports, including results of file reviews
- Ohio’s written responses to EPA’s questions
- EPA’s draft report with initial findings and recommendations
- Ohio’s response to EPA’s draft report
- public comments
VI. PRACTICE TIPS
A. Administrative Record Management
- Issues are fairly common to compilation of any administrative record:
- What goes in?
- What stays out?
- Who decides?
B. Consistency Among Programs
- withdrawal criteria different, but similar criteria should be applied similarly
- level of detail required from the state should be consistent
- level of detail in trip reports and depth of file reviews should be consistent
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- same format should be used for all media in draft and final “report and
recommendations”
C. Relationship to Regularly Scheduled Program Reviews
- To what extent, if any, should preliminary findings made during the Ohio review
influence mid-year and end-of-year reviews under MOAs, MOUs, etc.?
D. “Findings Regarding Withdrawal Criteria” v. “Recommendations for Improvement”
- During the reviews, technical staff identified a number of areas where the state
might improve its programs While these concerns did not justii program
withdrawal, Region 5 still wanted to communicate these concerns. To avoid
confusion, the Region did so in a separate letter to the state, and not in the “draft
recommendations and findings” document that specifically addressed the program
withdrawal/revocation criteria.
E. Approaches to Avoid Program Withdrawal
- “Contingent” Withdrawal if OEPA addresses certain identified concerns under
the CAA, EPA will not recommend further investigation or possible
commencement of withdrawal or revocation proceedings.
- Clarifj State’s Interpretation of Authority: If the Ohio Attorney General issues
an Opinion interpreting Ohio’s voluntary clean-up program (VAP) as not affecting
RCRA authorization requirements, then EPA will not recommend possible
commencement of withdrawal proceedings.
F. Scope of Review
- What level of detail should a petition for withdrawal/revocation contain in order
to trigger an investigation into program adequacy? Brief petitions with bare-bone
conclusions are probably not enough to even trigger an initial investigation.
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APPENDIX
PETITIONERS’ SPECIFIC ALLEGATIONS AND U S. EPA’S PRELIMINARY FiNDiNGS
I CLEAN AIR ACT
A. Summary
in its preliminary investigation of the allegations, U.S. EPA discovered various permitting and
enforcement issues that may be sufficient to support commencement of withdrawal or revocation
proceedings for Ohio’s delegated PSD and NSPS programs and its federally approved Title V
program if OEPA does not address the issues and the findings are confirmed upon further
investigation. The draft report makes recommendations for program improvement to address
these issues
B. CAA Enforcement
With respect to OEPA’s CAA enforcement program, the petitioners allege that OEPA has failed
to:
Properly apply environmental regulations,
Inspect and monitor activities subject to regulation;
Take enforcement action or to respond quickly when enforcement was needed;
Seek adequate pbnalties;
Apply Major Stationary Source (MSS) requirements;
Identify sources subject to Maximum Achievable Control Technology (MACT); and
Verify the accuracy of representations made by regulated entities.
The petitioners also allege that OEPA exhibits hostility towards citizens by:
Excluding them from the enforcement process and discussions between OEPA and
regulated entities;
Charging them excessive fees for copying records; and
Ignoring or disregarding citizen complaints.
Finally, petitioners allege that the Audit Privilege and Immunity Law prevents OEPA and local
agencies access to information needed to document violations and thereby denies citizens access
to information.
The preliminary findings from U.S. EPA’s review of OEPA’s CAA enforcement programs are
summarized as follows:
OEPA currently employs fewer employees than it had indicated it would need to run its air
programs;
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• There has been a decline in recent years in OEPA air inspections, enforcement case conclusions,
complaint investigations and collected penalty amounts;
• There are potential gaps in OEPA’s legal authority to implement portions of the delegated
NSPS and NESHAPs programs;
• OEPA has no comprehensive system or process for identif jing PSD sources that have not
identified themselves to OEPA;
• OEPA does not have procedures to check the accuracy of statements made by regulated
entities;
• OEPA does not have a training program that ensures a minimal level of training and consistency
across the State;
• OEPA has not provided inspection strategy and compliance tracking and enforcement program
plans as part of its Title V program application; and
• OEPA’ s Division of Air Pollution Control currently has a very high level of vacancies with no
system in place to expeditiously fill those vacancies
Although it is premature for U S EPA to reach definitive conclusions as to the applicability of the
withdrawal criteria to these concerns, these findings, if verified upon further review, may provide
a basis for the commencement of withdrawal or revocation proceedings for one or more of the
CAA programs unless OEPA makes definitive commitments to address U.S. EPA’s concerns.
The draft report contains a number of specific recommendations.
C. CAA Permitting
With respect to permitting, the petitioners allege that OEPA has failed to:
Correctly determine a facility’s status for purposes of Title V applicability,
Require permits for construction of sources;
Permit sources in a timely manner;
Require Lowest Achievable Emission Rate (LAER) and offset reduction;
Perform analyses of alternative sites for NSR source applicants;
Determine correctly a facility’s Hazardous Air Pollutant (HAP) emissions;
Be responsive to citizens or to make necessary information publicly available; and
Collect appropriate permitting fees under Title V.
The preliminary findings from U.S. EPA’s review of OEPA’s CAA Title V permitting program
are summarized as follows:
• OEPA has fallen behind the statutory and regulatory timetable for issuing final Title V permits;
• OEPA has not implemented a phase H Acid Rain program as part of its Title V permitting
program;
• OEPA is not obtaining “sanitized” versions of Title V permit applications from applicants with
confidential claims to forward to the public;
• OEPA is including incomplete statements of basis with draft Title V permits; and
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OEPA does not prohibit by regulation the exclusion of insignificant emission units from Title V
applications and permits
The report preliminarily concludes that if OEPA does not address these concerns, they might form
a sufficient basis for initiating withdrawal proceedings. The findings that OEPA does not have a
Phase Ii Acid Rain program, does not prohibit by regulation the exclusion of insignificant
emission units, and is not obtaining sanitized versions of Title V applications are more serious in
nature, and require definite action by OEPA.
With regard to the PSD program, U.S. EPA found that OEPA refused to extend the time for
comment on two draft PSD permits with complex issues, and might be modi ing PSD permits
inappropriately through an administrative process rather than a formal public comment and review
process. Unless OEPA addresses these concerns, U.S. EPA recommends further investigation
and possible commencement of withdrawal or revocation proceedings for the PSD program
D. Recommendations
The report on OEPA’s air programs also contains a number of recommendations. OEPA’s
commitment to adopting these recommendations may obviate any need for U.S. EPA to
recommend the commencement of withdrawal or revocation proceedings. The report
recommends that OEPA:
• Obtain adequate resources, including personnel, to run its various delegated and approved
programs;
• Better define and expand the role of the public in its regulatory activities, including potentially
drafting and making publicly available a public participation strategy policy, which establishes,
among other things, uniform minimum standards to be followed by all field offices for the receipt,
investigation, and resolution of citizen complaints;
• increase issuance of final Title V operating permits, properly develop and implement an Acid
Rain Phase II program in conjunction with its Title V program, and ensure that companies
sanitize Title V applications which can be provided to the public;
• Better define its policy on comment period extensions for complex PSD permit applications
and discontinue its practice of administratively modif ’ing PSD permits;
• Create a specific inspection system to identi! i unpermitted PSD sources;
• Describe how all sources subject to the delegated NSPS, PSD and NESHAPS programs are
properly identified and permitted, submit a request to U.S. EPA for approval to sub-delegate
those programs to its field offices, submit the various annual and quarterly reports required by
each delegation document, and ensure that none of Ohio’s laws or regulations OEPA’s
interpretation of those laws or regulations) hinder its ability to implement the various federally
delegated air programs;
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• Better describe its Title V inspection strategy, monitoring and enforcement tracking plans,
including procedures to follow when conducting inspections and guidance as to what to document
in the inspection report;
• Create a standardized training program which ensures both a minimum level of training for all
OEPA and local air pollution authority employees and consistency in implementation of Ohio’s
delegated and approved air programs across the State; and
• Create a system to fill vacancies more quickly.
U S. EPA is also currently reviewing all state Title V programs nationwide in accordance with a
recent settlement that the federal government entered into with various environmental groups. All
findings and recommendations in this report in regard to Ohio’s Title V program are therefore
subject to change and/or additions pending the conclusion of this ongoing review of Ohio’s Title
V program.
II. CLEAN WATER ACT
A Allegations
The petitioners allege that OEPA:
Has not been complying with the State’s antidegradation requirements in siting landfills;
Failed to develop TTvJDLs;
Failed to adopt requirements consistent with the Water Quality Guidance for the Great
Lakes System;
Has not been properly regulating concentrated animal feeding operations (CAFOs);
Has improperly granted compliance certifications under the Clean Water Act; and
Has an inadequate NPDES enforcement program.
Petitioners also allege that Ohio’s antidegradation rules are deficient.
B Preliminary Conclusions
With respect to the allegations concerning antidegradation, TMDLs and the Water Quality
Guidance, the draft report preliminarily concludes that there is not sufficient cause to commence
withdrawal proceeding with respect those issues. With respect to CAFOs, OEPA has committed
to require documented CAFO dischargers to apply for NPDES permits, to develop and issue
appropriate NPDES permits for CAFOs, and to take appropriate CWA enforcement actions in
response to CWA violations committed by CAFOs. With regard to allegations regarding
improper compliance certification under the Clean Water Act, states enjoy a wide latitude in
determining whether to grant Section 401 certification. As to allegations that OEPA’s NPDES
enforcement program is inadequate, the draft report preliminarily concludes that there is not
sufficient cause to commence withdrawal proceedings, providing that OEPA establishes a
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schedule for resolving problems with implementation of OEPA’s new data management system
(“SWIIvIS”), electronic reporting of DMRs, and accuracy of information entered into U.S. EPA’s
Permit Compliance System (PCS).
EPA investigated one NPDES issue not raised by petitioner. The draft report evaluates OEPA’s
approach to addressing “practical quantification levels” (PQLs) in situations where NPDES
permits contain water quality-based effluent limits (WQBELs) below the PQL. The draft report
notes that Ohio’s approach for addressing WQBELs that are below the quantification level is
generally consistent with federal requirements.
C. Recommendations
Amàng other things, the draft report recommends that the State provide an expedited schedule for
resolving outstanding issues with SWIMS, develop and receive approval for its inspection
strategy; and, with respect to PQLs, clarify that, where there is a minimum level for analytical
procedures specified in or approved under federal regulations, the minimum level should
constitute the quantification level for permits outside the Lake Erie basin.
III. RCRA
A. Hazardous Waste
The petitioners claim that OEPA avoids enforcing its environmental laws and fails to inspect and
monitor activities subjecj to regulation. Furthermore, the petitioners claim that OEPA abandoned
its existing enforcementefforts in favor of the State’s Voluntary Action Program (yAP). The
January 27, 2000 supplement to the petition includes a table that lists the following installations as
examples in which OEPA failed to carry out certain aspects of the RCRA hazardous waste
program: Georgia-Pacific Resin in Columbus, the Tremont Sanitary Landfill in Springfield, the
Bond Road Landfill in Whitewater Township, the River Valley High School in Marion, AK Steel
in Middletown, WTI in East Liverpool, Envirosafe in Oregon, Brush Weilman in Elmore, PPG
Industries in Circleville, Elano Corporation in Beavercreek, and Worthington Custom Plastic in
Warren County. The petitioners also claim that OEPA fails to exercise control over authorized
hazardous waste program activities.
Based on U.S. EPA’s evaluation of petitioners’ claims, a review of the annual audits of Ohio’s
hazardous waste enforcement program from 1995 through 2000, and an evaluation of the overall
Ohio RCRA program as well as case-specific information, U.S. EPA has concluded preliminarily
that the evidence does not substantiate petitioners’ allegations or constitute sufficient cause to
warrant commencement of formal withdrawal proceedings. We are requesting an Attorney
General’s Opinion to clarify the application of the VAP program and its impact, if any, on
authorization requirements for permitting and corrective action, accessing information and
releasing information.
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B. Solid Waste
The petitioners claim that Ohio’s solid waste program fails to ensure that waste is disposed of in
an environmentally sound manner and in compliance with federal law. The petitioners also claim
that Ohio fails to close or upgrade existing open dumps in accordance with federal law.
Furthermore, the petitioners claim that OEPA lacks the ability to adequately control air emissions,
surface water discharges and groundwater contamination from municipal solid waste landfills
(MSWLFs). The petitioners list five MSWLFs as examples of alleged failures of the program: the
Clarkco Sanitary Landfill in Springfield, the Tremont Sanitary Landfill in Springfield, the ELDA
Recycling & Disposal Facility in Cinciiinati, the Bond Road Landfill in Whitewater Township and
the Rumpke Sanitary Landfill in Hamilton County.
Based on the criteria set forth in the RCRA regulations and U.S. EPA’s evaluation of petitioners’
claims and the Ohio MSWLF permit program, U.S EPA has concluded preliminarily that there
does not appear to be sufficient substantive information to justif ’ commencing formal withdrawal
proceedings to determine whether or not the current Ohio MSWLF permit program meets the
minimum federal requirements for an adequate program.
IV. GENERAL ENFORCEMENT
U S. EPA also reviewed the OEPA Office of Legal Services, the Ohio Attorney General’s
Environmental Division and the Attorney General’s Bureau of Criminal Investigation. U.S. EPA
obtained an overview of how Ohio’s legal offices function and bring enforcement cases, including
the types, quantities and results of enforcement activities, and legal perspectives relating to
particular programs.
In this general overview, U.S. EPA also looked for multi-media enforcement because the
petitioners had asked us to look at the allegations from a multi-media perspective. The federal
environmental programs stem from separate federal authorities that do not require a multi-media
approach. We found that Ohio does not approach enforcement from a multi-media perspective.
Since our authorities do not require a multi-media approach, this does not affect our
authorization, delegation and/or approval of Ohio programs.
U.S. EPA’s preliminary conclusion is that Ohio agencies initiate, prosecute and conclude a
significant number of environmental enforcement cases. In particular, Ohio’s criminal
environmental enforcement program is considered among the best in the nation. Of note, Ohio
has administratively and/or civilly enforced against and/or resolved violations at 28 of the 57
facilities mentioned in the petitioners’ August 4, 1999 supplement, and has conducted
investigations at many of the others. Working in partnership with OEPA, U.S. EPA has enforced
against or otherwise addressed most of the remaining facilities that have or have had identified
enforcement problems. This is not to say, however, that all violations at all of the listed facilities
have been addressed. While either OEPA or U.S. EPA has already addressed certain violations
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at those facilities, there may be other violations that have not yet been addressed and/or remedied.
U.S. EPA preliminarily finds that Ohio maintains an active enforcement presence in the
environmental programs U S. EPA reviewed.
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10
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IMPORThNT NTES
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Topic 10
OGC, ORC and DOJ: Working Together
‘Speaker Biographies - Rich Ossias, Manisha Patel, Lee
Schroer and Ann Williams
‘ Western States Petroleum Association. et al. v. EPA ,
87 F.3d 280 ( 9 th Cir.)
‘ Puerto Rican Cement Company. Inc. v. EPA ,
889 F.3d 292 ( 1 St Cir.)
‘Memorandum of Understanding
‘Procedures to Improve Coordination before the
Environmental Appeals Board
‘Revised Procedures to Strengthen Enforcement
Program’s Advocacy in Environmental Appeals Board
Matters
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TOPIC 10 BIOGRAPHIES
RICH OSSIAS
Rich Ossias has been the Deputy Associate General Counsel for OGC’s
Air and Radiation Law Office since 1995. Rich first arrived at OGC as a
summer clerk for the Water and Waste Division in 1979, following his
second year at Stanford Law School. He started working as a staff
attorney in 0CC-Air after graduating in 1980, and served as a branch chief
from 1988 until he assumed his current position. Rich also did a stint as
Acting Principal Deputy General Counsel during the first seven months Of
the current administration, while Anna Wolgast was Acting General
Counsel. Aside from his general management responsibilities, Rich has
traditionally supervised OGc’s legal work under the parts of the Clean Air
Act relating to implementation of national ambient air quality standards
(the SIP world), as well as a smattering of other air programs. He spends
most Of his off hours shuttling family members to activities, feeding
numerous household pets, and actively using the remote control while
resting on the couch.
MANISHA PATEL
Manisha D. Patel is an Assistant Regional Counsel in the Region 6
office Of the United States Environmental Protection Agency (EPA) in
Dallas, TX. She recently completed a six-month detail as the Acting Deputy
Regional Counsel for Region 6. Her current case assignments include
defensive litigation and counseling cases under the Clean Air Act and the
Clean Water Act. She has also managed a variety of cases and legal matters
in the areas Of constitutional law, civil rights law and environmental
justice. Ms. Patel is a recipient Of the Vice President’s Silver Hammer
Award for Innovation in Government and has been awarded the Regional
Administrator’s 2000 Strategic Alliance Award for her work on ozone Flex
Agreements. Her accomplishments also include EPA’S Bronze Medals for
her work on the Offshore Oil & Gas Extraction General Permit, TMDL
Agreements, and the municipal storm water permit for Austin, Texas.
Before joining Region 6, MS. Patel was a litigation attorney in the
Washington, D.C. office of Jones, Day, Reavis and Pogue, L.L.P. She has
worked as a student attorney at Georgetown University’s Institute for
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Public Representation and as a legislative aide for the Hazardous Waste
Action Coalition, an industry trade group. MS. Patel has served as a Judicial
Intern for the Honorable Kaye K. Christian Of the District of Columbia
Superior Court and as an Honors Law Clerk for the International Division Of
the EPA’S Office of Enforcement and Compliance Assurance in Washington,
D.C.
Ms. Patel holds a J.D. from Georgetown University Law Center in
Washington, D.C. and a B.A. in Political Science and International Studies at
Northwestern University in Evanston, IL. Ms. Patel is a certified mediator in
the State Of Texas. She is admitted to the Virginia State Bar.
LEE SCHROER
ee Schroer is Assistant General Counsel with the Water Law Office.
Lee’s practice group includes all water quality-related issues arising under
the clean Water Act and issues arising under the Marine Protection,
Research and Sanctuaries Act. Lee has been an Assistant in the Water Law
Office since 1984. Lee has been with the Office of General Counsel since
1974. He earned his J.D. from the University of Houston Law School and his
B.A. from the University Of Nebraska. Lee is a member Of the Texas bar.
ANN WILLIAMS
Ann Williams Is Senior Associate Regional counsel In EPA’S New
England regional office. She has been with EPA for 22 years, working on a
variety of enforcement and counseling issues arising primarily under the
Clean Water Act. mong other duties within the Office Of Regional
Counsel, she serves as the lead legal advisor for NPDES permitting, water
quality standards, TMDL5, and wetland issues, and oversees the wetlands
enforcement cases brought by EPA. MS. Williams has written and lectured
on a variety of legal issues related to the Clean Water Act. She has been an
adjunct professor at Boston College Law School and Northwestern School
of Law at Lewis and Clark College, and is a past chair of the Wetlands and
Waterways Committee Of the Boston Bar Association. She is a graduate Of
Boston College Law School and Wesleyan University.
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WESTERN STATES PETROLEUM ASSOCIATION; NORTHWEST PULP & PAPER
ASSOCIATION; ALUMINUM COMPANY OF AMERICA; COLUMBIA ALUMINUM
CORPORATION; INTALCO ALUMINUM CORPORATION; KAISER ALUMINUM &
CHEMICAL CORPORATION; VANALCO, INC., Petitioners, STATE OF
WASHINGTON DEPARTMENT OF ECOLOGY, Intervenor, v.
ENVIRONMENTAL PROTECTION AGENCY; CAROL M. BROWNER,
Administrator, Respondents.
No. 95-70034, Clean Air Act
UNiTED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
87 F.3d 280; 1996 U.S. App. LE)US 14612; 42 ERC (BNA) 1897;
146 A.L.R. Fed. 747; 96 Cal. Daily Op. Service 4299; 96
Daily Journal DAR 6946; 26 ELR 21469
June 17, 1996, Filed
PRIOR HISTORY: [ ** 1] Petition for Review
of Final Action of the Environmental Protection
Agency.
DISPOSITION: PETITION FOR REVIEW GRANTED.
REVERSED AND REMANDED.
COUNSEL: Matthew Cohen, Heller, Ehrman, White &
McAuliffe, Seattle, Washington, for the petitioners.
Mazy Sue Wilson, As stant Attorney General, Olympia,
Washington, for the intervenor.
Daniel M Flores, United States Department of Justice,
Environmental & Natural Resources Division, Washington,
D.C., for the respondents.
JUDGES: Before: Eugene A. Wright, HariyPregerson, and
A. Wallace Tashima, Circuit Judges. Opinion by Judge
Tashima.
OPINIONBY: TASHIMA
OPINION: [ 282] OPINION
TASHIMA, Circuit Judge:
Title V of the 1990 Clean Air Act Amendments (Title V),
42 U.S.C. if 7601, et. seq., established a new operating
permit program to be administered pursuant to rules
developed by the states and approved by the Environmental
Protection Agency (EPA). The State of Washington
submitted for EPA approval a Title V program that would
exempt “insignificant emissions units” (IEUs) from permit
application requirements, as well as monitoring, reporting
and record-keeping requirements. The EPA granted only
interim approval to Washington’s program and conditioned
final approval [ “2] on the repeal of the tE l) exemption.
We reverse the EPA’s decision as an abuse of discretion
because it conflicts substantially with numerous EPA
decisions in other states and localities.
BACKGROUND
Title V instituted a centralized permitting program to be
administered by the states subject to EPA oversight.
Through the program, all Clean Air Act substantive and
procedural requirements applicable to a pollutant emitter
are written in the emitter’s operating permit. 42 US.C. §5
7661c(a)-(c). Each permit must include inspection, ently,
monitoring, compliance certification, and reporting
requirements to assure compliance with the Act. Id.
Title V directs the EPA to prescribe procedures for
determining compliance, institute requirements for permit
applications, and establish the minimum elements of a state
permit program (including monitoring and reporting
requirements). 42 U.S.C. if 7661a(b)(I), 7661a(b)(2),
766 lc(b). 40 C.F.R. Part 70 sets forth the regulations that
the EPA adopted to implement Title V. The Part 70
regulations set forth the criteria for EPA approval of state
permit programs.
The EPA has allowed states to exempt insignificant
activities and emissions levels [ “3] from certain
requirements in order to reduce the regulatozy burdens on
emitters. 40 C.F.R. § 70.5(c)(3). Subject to EPA approval,
each state determines what activities and emissions levels
may quali1 ’ as insignificant 40 CJ.R.. § 70.5(c)(3).
Pursuant to 42 U.&C. 5 7661a(dXl), the State of
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Washington proposed a permit program to the EPA during
November 1993. Washington’s program designates a host
of emissions as insignificant, e.g., emissions from roof
vents, vehicle exhaust from repair shops, and emissions
from fire-fighting equipment. Wash. Admin. Code § 173-
401-532. Washington’s program exempts IEUs from the
permit application requirements of 40 C.F.R. § 70.5. The
program also exempts IEUs from the permit compliance
requirements of 40 C.F.R. § 70.6, including monitoring,
testing, reporting, record-keeping and compliance
certification. Wash. Admin. Code § 173-401-530(2)(c).
On November 9, 1994, the EPA rejected Washington’s
IEU provisions, granting only interim approval to the
program. 59 Fed. Reg. 55813 (1994). As a condition to
final approval, the EPA required Washington to amend its
IEU rules to disqua1ii ’ any emissions unit subject to
federally enforceable applicable [ 5 *4] requirements. .59
Fed. Reg. 55813, 55814, 55818. The EPA’s interim
approval allowed Washington to begin implementing its
permit program while addressing the defects identified by
the EPA. 40 C.F.R. § 70.4(e)(3).
Petitioners, flye air pollutant emitters and two trade
associations of pollutant emitters, filed a timely petition for
judicial review on January 6, 1995. nI The State of
Washington Department of Ecology moved to intervene
[ *2831 in support of its program. n2 On July 7, 1995, we
granted the EPA’s motion to vacate the portion of its
decision that concerned IEUs and specifically retained
jurisdiction of this matter.
ni The EPA’s 1994 interim approval decision mandated
five changes in Washington’s Title V program prior to final
approval. 59 Fed. Reg. 55818. Petitioners do not challenge
any of the approval conditions other than the requirement
of repealing the IEU rules.
n2 That motion, which was referred to this merits
panel, is now granted.
On remand, the EPA adopted a final decision on
November 15, 1995. (*55] 60 Fed. Reg. 62992.
62993 0995). The EPA found that Part 70 allows states
to exempt IEUs from Title V permit applications (40
C.F.R. § 70.5), but not from the permit content
requirements of 40 C1.R. § 70.6. Id. at 62993. Thus,
the EPA disapproved Washington’s exemption of IEUs
from Title V monitoring, reporting and record-keeping
requirements. Petitioners ‘ - review of this final
agency decision.
We have jurisdiction to review the EPA’s final action
pursuant to § 307(b)(1) of the Clean Air Act, 42 U.S.C.
7607(b)(1), and pursuant to our July 7, 1995, order
retaining jurisdiction of this appeal.
STANDARD OF REVIEW
We review final administrative actions of the EPA
pursuant to the Clean Air Act under the same standard as
set forth in the Administrative ProcedureAct. Abramowitz
v. United States EPA, 832 F.2d 1071, 1074(9th Cir. 1987).
We will reverse the EPA’s decision only if it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 42 U.S.C. § 7607(d)(9)(A); Ober v.
United States EPA, 84 F.3d 304, 1996 U.S. App. LEXIS
/1216, No. 95-70352 slip op. at 5811, 1996 WL 250437, S
2 (9th dr. May 14, 1996).
Under this standard, we must give deference to the EPA’s
[ *6] interpretation of its own regulations, if its
interpretation is not unreasonable. Id.; Citizens for Clean
Air v. United States EPA, 959 F.2d 839, 844 (9th CIr.
1992). However, if the EPA has abused its discretion in
failing to follow its own prior standards, then we need not
defer to the EPA’s anomalous interpretation. Oil, Chemical
andAtomic Workersint’! Union, Local 1-547v. NLRB, 842
F.2d 1141, 1143n.1 (9th Cir. 1988).
DISCUSSION n3
n3 As a preliminary matter, the EPA contends that
petitioners’ failure to raise before the agency their current
objections to EPA’s decision forecloses this court’s
consideration of these arguments. However, we find that
petitioners did in fact call their instant objections to EPA’s
attention either before the case was remanded for EPA’s
reconsideration or during the comment period below. Thus,
petitioners’ arguments are properly before us.
The EPA asserts that Part 70 allows IEU5 to be
exempted from permit application requirements, but not
from permit content requiremenis. [ 5*7] Section
70.5, which addresses requirements for permit
applications, reads, in relevant part: “The
Administrator may approve as part of a State program
a list of insignificant activities and emissions levels
which need not be included in permit applications.” 40
C.F.R. § 70.5(c). The EPA points out that § 70.6, which
addresses permit content requirements, contains no
such exemption for IEUs.
However, the EPA has identified only two Title V
programs that in fact apply permitting requirements to
IEUs - the Oregon n4 and San Francisco Bay Area< ua1ity
Maintenance District programs. n5 On the other hand, the
EPA has condoned the exhmption of IEUs from the permit
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content requirements of § 70.6 in at least eight other state
and local programs. For example, the EPA has granted
final, full approval to Title V programs from Ohio n6 and
Knox County, Tennessee, n7 that omit IEUs entirely from
[ *284] permits. The EPA has also proposed to approve
the programs of Jefferson County, Kentucky n8 and
Massachusetts, n9 despite their exemption of IEUs from
permitting requirements. Although the EPA required
revisions in the Title V programs of Florida, nlO North
Dakota, nil Hawaii, n12 and North Carolina, [ **8] n13
the EPA’s objections to those programs were based on
grounds other than their general exemption of IEUs from
the majority of permit content requirements.
n4 See 59 Fed. Reg. 47019 (1994).
n5 See 60 Fed. Reg. 32603. 32604 (1995) (requiring
the district to clarify that its IEU exemption does not
exempt sources “from title V permitting requirements”).
n6 See Ohio Adinin. Code § 3745.77-02(E)(l) (“for
major sources, the federally enforceable portion of the
permit shall include all applicable requirements for all
relevant emissions units at the major source. . . the term
“relevant emissions units” shall mean only those
emissions units. . . that are not insignificant activities
and emissions levels.”); 60 Fed. Reg. 18790, 18791
(1995) (proposing to approve Ohio’s permit program as
satisfying the requirements of both § 70.5 and 70.6);
60 Fed. Reg. 42045 (1995) (granting final full
approval).
n7 See 60 Fed. Reg. 56281. 56282 (1995) (citing
Knox County Air Pollution Control § 25.70.12 as
providing “for the exemption of certain emissions units,
or pollutant-emitting activities from the title V
permitting process”); 6) Fed Reg. 18966 (1996)
(granting full approval to Knox County’s Title V
program).
[ **9J
aS See Air Pollution Control Bd. of Jeft Co., KY, Regs.
2.02 § 2 (“Notwithstanding the permitting requirements of
section 1.1, applications and permits may not be required
of the following.. . [ enumerating insignificant activities].”)
The EPA has proposed to approve Jefferson County’s
program in spite of its exemption of IEUs “from application
and permit requirements.” 60 Fed. Reg. 58035 (1995)
(emphasis added).
n9 Massachusetts’s administrative code provides thaL
“any emission unit(s) that are part of the following
activities are exempt from the requirements of 310
CA4R 7.00 [ the Title V permitting program].” Mass.
Regs. Code tit. 310, Appendix C § (5)(h). Despite this
exemption of IEUs from permitting re4uirements, the
EPA found that the Massachusetts program
“substantially meets the requirements of 40 CFR...
§] 70.6 with respect to permit content.” 6) Fed. Reg.
3827. 3828 (1996).
nlO See Fla. Admin. Code § 62-210.300(3)
(exempting insignificant activities from “the permitting
requirements of this chapter. . . .“); 60 Fed. Reg.
49343, 49344 (1995) (requiring, as a condition of full
approval, several changes of Florida’s IEU rule, none of
which pertained to the general exemption of IEIJs from
the permitting requirements of § 70.6).
[ *t10]
nil In granting final intenm approval to North Dakota’s
Title V program, the EPA’s concern was that North Dakota
set insignificant emission levels that were “too high to be
considered reasonable levels for exempting those emission
units from Title V operating permit requirements.” 6OFed.
Reg. 35335,35336(1995) (emphasis added). Significantly,
the EPA did not object to the premise that 1EUs, if set at
lower thresholds, could be exempted from Title V
monitoring and compliance requirements. In fact, the EPA
concedes that its North Dakota decision allows IEUs to be
exempted from the “majority ” of permit content
requirements.
n12 In its Hawaii decision, the EPA acknowledged
that under Hawaii’s proposed program, “insignificant
activities need not be described on permit applications
and are essentially exempt from part 70 permitting.” 59
Fed Reg. 61549, 61550(1994) (emphasis added). The
EPA granted interim approval of Hawaii’s program and
noted that the mu provisions were inappropriate
because new permit exemptions would be granted
without prior EPA approval. However, the EPA did not
object to the exemption of IEUs from part 70 permitting
requirements. Id.
nl3 The EPA acknowledges that North Carolina
exempts IEUs from permit content requirements. See
ISA N.C. Adniin. Code § 2Q.0102(b) (enumerating
insignificant activities that “do not need a permit or
permit modification under this Subchapter”); iSA N.C.
Admin. Code § 2Q.0508(aa) (“the permit shall not
include insignificant activities.”) In reviewing the
North Carolina program, the EPA did not even
comment on the program’s exemption of IEUs from
monitoring, reporting and record-keeping requirements.
Instead, the EPA required only that North Carolina
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revise its insignificant emissions threshold levels
downward from 40 tons per year to 5 tons per year or
less. 60 Fed. Reg. 44805, 44807 (1995); 60 Fed. Reg.
57357, 57359 (1995).
E’ 1l1
The EPA urges this court to ignore the apparent
inconsistency between its Washington decision and its
approval of other state programs on the ground that the
Washington decision represents the EPA’s first thorough,
well-reasoned discussion of whether IEUs may be exempted
from § 70.6’s permitting requirements. Even so, the EPA’s
rejection of Washington’s IEU rules is undeniably a change
“in agency interpretation [ which] must be supported by a
‘reasoned analysis’ over and above that required for an
interpretation in the first instance.” Flagstaff Medical
Center, inc. v. Sullivan, 962 F.2d 879, 886 (‘9th Cir. 1992)
(citation omitted).
The EPA may have the power to adjust its policies and
rulings in light of experience and to announce new
principles in an adjudicatoiy proceeding. Ca4fornia
Trucking Ass’n v. ICC, 900 F.2d 208, 212 (9th Cir. 1990).
However, the EPA “may not depart, sub silentio, from its
usual rules of decision to reach a different, unexplained
result in a single case.” Id. (citations omitted). To the
contrary, the EPA must clearly set forth the ‘ground for its
departure from prior norms so that we may understand the
basis : f the EPA’s action and judge the [ 12]
consistency ãf that action with the EPA’s mandate.
Atchison, 7’. & S. F. Ry. v. Wichita Pd. of Trade, 412 U.S.
800, 808, 37 L. Ed. 2d 350, 93 S. Ci. 2367(1973); Arizona
[ *285] Elec. Power Coop., Inc. v. United States, 816F.2d
1366, 1374 (9th Cir. 1987).
In this case, the EPA Ihils to provide any explanation at
all for its anomalous Washington decision. Instead, it flatly
denies the obvious inconsistencybetween its rejection of the
Washington program and its approval of other state
programs. 60 Fed. Reg. 62992, 62995 (1995) (“the
commentators can point to no instance in which EPA has
approved a State program which expressly exempts IEUs
with applicable requirements from the permit content
requirements of section 70.6.”).
The EPA relies heavily on Puerto Rican Cement Co. v.
United States EPA, 889 F.2d 292 (1st Cir. 1989), for the
proposition that “no large agency can guarantee that all its
administrators will react similarly, or interpret regulations
identically, throughout the United States.” I d at 299. In
that case, the First Circuit found no significant, legally
recognizable conflict that the EPA had to justify.
The EPA’s reliance on Puerto Rican Cement is misplaced.
Central to the holding in that [ **13] case was the fact
that the “deviant” interpretation occurred but once; EPA
materials written both before and after the deviant letter
were consisteniwith the EPA’s position in the litigation. Id.
Moreover, the deviant interpretation appeared in a letter
written by a lower level official and did not reflect an
unconscious change in established EPA policies. Id.
By contrast, there are at least eight EPA decisions
published in the Federal Register that conflict with the
Washington decision here. Further, the EPA issued the
conflicting decisions both before and after the Washington
decision. The EPA approved Ohio’s EU rules, which omit
IEUs entirely from permits, on August 15, 1995. 60 Fed.
Reg. 18790 (1995). The EPA then proposed to disapprove
Washington’s exemption of IEUs from § 70.6 permit
content requirements on September 14, 1995.60 Fed Reg.
50166, 50173 (1995). Eleven days later, on September 25,
EPA published its final interim approval of Florida’s Title
V program. 60 Fed. Reg. 49343(1995). The EPA issued its
final decision disapproving Washington’s lEUs rules on
November 15, 1995. 60 Fed. Reg. 62997. That same day,
the EPA published its final interim approval of [ ** 14
North Carolina’s Title V program. 60 Fed. Reg. 57357
(1995). Ten days later, the EPA published its proposal to
approve the Jefferson County, Kentucky program. 60 Fed.
Reg. 58033 (1995). Finally, the EPA published interim
approval of Massachusetts’ program on February 2, 1996,
61 Fed Reg. 3827 (1996), and full approval of the Knox
County, Tennessee program on April 19, 1996. 61 Fed.
Reg. 18966(1996). The fact that the EPA changed its mind
and course four times refutes its argument that the
Washington decision marked a reflected, deliberate, or
lasting change of policy.
In sum, the EPA has approved numerous state programs
omitting LEUs from § 70.6’s monitoring and compliance
requirements, but rejected Washington’s IEU rules on that
very same basis. The EPA’s reliance on its broad
supervisory power over state Title V programs does not
provide an adequate basis to support its otherwise arbitrary
treatment of Washington’s IEU rules. Cf Arizona Elec.
Power Coop., Inc., 816 F.2d at 1374 (agency’s “broad
discretionary power” is not “an adequate basis to support its
otherwise arbitrary treatment” of a single case). We need
not defer to the EPA because the EPA has abused its
discretion [ **151 in departing from its own prior
standards. Oil, Chem. and Atomic Workers, 842 F.2d at
1143n.1. BecausetheEPAhasfailedtoofferasufficient
explanation for its differential treatment of Washington’s
Title V program, we reverse EPA’s decision on
Washington’s IEU rules. McClaskey v. United States Dep’f
of Energy, 720 F.2d 583, 587 (9th Cir. 1983); see also
-------
Motor Vehicle Mfrs. Ass’n. v. State Farm Mug. Auto. Ins.
Co.. 463 U.S. 29, 43, 77 L. Ed. 2d 443, 103 S. Ct. 2856
(1983) (reviewing court must not supply a reasoned basis
for agency’s action that agency itself has not given).
AUORJ1EYS’ FEES
Petitioners seek an award of attorneys’ fees and costs on
appeal pursuant to § 307(f) of the Clean Air Act, which
provides:
In any judicial proceeding under this section, the court
may award costs of litigation [ 286] (including
reasonable attorney and expert witness fees) whenever it
determines that such award is appropriate.
42 U.S.C. § 7607(f). An award of attorneys’ fees is
“appropriate” where petitioners have: (1) attained some
success on the merits; and (2) contributed substantially to
the goals of the Clean Air Act in doing so. Abramow:tz, 832
F. 2d at 1079 (citing Ruckeishaus v. Sierra [ **161 Club,
463 U..S 680, 682-84, 77 L. Ed. 2d 938, 103 S. Ct. 3274
(1983); Carson-Truckee Waler Conservancy Dist. v.
Secretary of the Interior, 748 F.2d 523, 525-26 (9th Cir.
1984), cert. denied, 471 U.S. 1065, 85 L. Ed. 2d 497, 105
S. Ct. 2139 (1985)).
Because we reverse the EPA’s Washington decision as an
unexplained departure from precedent, petitioners have
attained sufficient success on the merits to be eligible for
attorneys’ fees. Ruckeishaus v. Sierra Club, 463 U.S. at
682.
The second question - whether petitioners have
contributed substantially to the goals of the Clean Air Act -
is more difficult. We have yet to address whether a
financially able, nongovernmental party having no more
than its own economic interests at stake should be entitled
to attorneys’ fees under § 307(f).
The Fifth Circuit has answered this question in the
affirmative. Florida Power & Light Co. v. Costle, 683 F.2d
941, 943 (5th Cir. 1982). However, we decline to adopt the
approach of the Fifth Circuit We agree with the District of
Columbia Circuit that the legislative history of § 19(d) of
the Toxic Substances Control Act, 15 U.S.C. § 2618(d),
which uses the same “appropriate” standard as the Clean
Air Act, reveals the clearest expression of congressional
17] purpose in enacting statutes of this type. Alabama
Power Co. v. Gorsuch, 217 U.& App. D.C. 148, 672 F.2d
1. 7 n.33 (D.C. Cir. 1982). During debate on the final
version of § 19(d), Senator Magnuson, the ranking Senate
Manager on the Conference Committee, stated:
It is not the intention of these provisions to provide an
award for an individual or a group if that individual or
group may stand to gain significant economic benefiis
through participation in the proceeding..
It is not intended that the provisions support participation
of persons, including corporations or trade associations,
that could otherwise afford to participate. . . . Whether or
not the person’s resources are sufficient to enable
participation would include consideration of. . . the
likelihood that the person would seek to participate in the
proceeding whether or not compensation was available.
112 Cong. Rec. 32,855 (1976) (remarks of Senator
Magnuson), as quoted in 4labwna Power Co., 672 F.2d at
7 n.33. Thus, the legislative history indicates that Congress
neither intended to subsidize all litigation under the Clean
Air Act nor contemplated that § 307(f) would benefit
financially able parties who, out of their [ 18] own
substantial economic interests, would have litigated
anyway. For this reason, we hold that petitioners are
ineligible for a fee award under § 307(f).
Moreover, petitioners do not assert, nor do we find, that
their litigation of this case has served the public interest in
assisting in the interpretation and implementation of the
Clean Air Act. Carson-Truckee, 748 F.2d at 525.
Petitioners’ status as prevailing parties, j,y itself, does not
automatically establish that they have assisted in the proper
implementation of the Act. C L id. (“although a
complainant may have substantially prevailed in an action,
the award of costs and attorney fees does not automatically
follow.”). The issue under the Act has been relatively
narrow and concerns only the anainolousness of the EPA’s
Washington decision. Petitioners do not identi1 ’ any other
Title V programs that this litigation will affect We are
simply confronted with an anomalous decision which the
agency should correct Because petitioners who are
financially able to and would have litigated regardless of
any potential for a fee award, have not contributed
substantially to the goals of the Clean Air Act, for this
further reason [ 99] we do not find an award of
attorneys’ fees to be appropriate.
CONCLUSION
We reverse the EPA’s decision with respect to
Washington’s proposed IEU regulations as an unexplainea
departure from precedent, and thus, as an abuse of
discretion, ( 287] On remand, the EPA shall grant full
approval to Washington’s proposed Title V program, as
modified to correct the four other deficiencies identified in
the EPA’s November 9, 1994, notice. Petitioners’ request for
attorneys’ fees is denied. Each party shall bear its or her
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own costs on appeal. AND REMANDED.
PETITION FOR REVIEW GRANTED. REVERSED
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Search Result - CTA I R - “PUERTO RICAN CEMENT” /200 EPA - Puerto Rican Cemeni... Page 1 of 1
(Cite as: 889 F.2d 292)
58 USLW 2292, 30 ERC 1650,20 Envtl L Rep. 20,259
United States Court of Appeals,
First Circuit.
PUERTO RICAN CEMENT COMPANY, INC Petitioner,
V
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.
No. 89-1070
Heard Sept. 15, 1989
Decided Oct 31, 1989
Cement company seeking to construct new kiln in area with particularly dean air petitioned for review of Environmental
Protection Agency decision denying “non-applicability determination” (‘NAD’) and requinng “prevention of significant
deterioration” (“PSD”) review. The Court of Appeals, Breyer, Circuit Judge, held that (1) determination was sufficiently final to
warrant review; (2) Agency’s application of “actual/potential” method of measurement to proposed kiln modification did not
represent improper, arbitrary, contradictory, or inconsistent interpretation of Agency’s own regulations, and (3) challenge to
lawfulness of regulations was untimely and should in any event have been brought in Court of Appeals for District of Columbia
(Cite as: 889 F.2d 292)
Petition denied, agency order affirmed.
West Headnotes
(Cite as: 889 F.2d 292)
[ jJ P”K. yCite this headnote
‘15A.v’ Administrative Law and Procedure
15AV.- .-’ Judicial Review of Administrative Decisions
i (BJv Decisions and Acts Reviewable
15Ak704 ’ k. Finality; Ripeness.
199v ’ Health and Environment
P ’L99ijt - Regulations and Offenses
t99k25 5C Environmental Protection in General
1 iCZ i.54” Judicial Review or Intervention
p”199k25 15(32) k. Decision or Actions Reviewable.
Determination of Environmental Protection Agency denying cement company ‘non- applicability determination” (“NAD”)
regarding proposed construdion of new kilns was ripe for judicial review, Agency’s position on legal question of “prevention of
significant detenoration” (“PSO”) applicability was final and authoritative, fact-based record made legal issues sufficiently
concrete to permit courts focused attention, and withholding of review would work considerable hardship on company Clean
AirAci, § 160-169, 307(b)(1), ‘42
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Search Result - CTA I R - “PUERTO RICAN CEMENT” /200 EPA - Puerto Rican Cemeni... Page 1 of 3
(ate as: 889 F.2d 292, *298)
electncity peak demand might make the firm hesitate to promise EPA it will never increase actual emissions (particularly since
EPA insists, as a condition of accepting the promise and issuing the NAD, that the firm also promise not to apply for
permission for an actual increase under the PSD review process). 1 Miatever the arguments about the “irrationality” of EPA’s
interpretation in such circumstances, however, those circumstances are not present here The Company is not interested in
peak load capacity; it operated its old kilns at low levels in the past; its new, more efficient kiln might give it the economic
ability to increase production; consequently, EPA cduld plausibly fear an increase in actual emissions were it to provide the
NAD. Thus, this seems the very type of case for which the regulations quoted above were written. We can find nothing
arbitrary or irrational about EPA applying those regulations to the Company’s proposal.
Finally, the Company points to another regulation with which, it argues, EPA’s interpretation conflicts. That regulation says that
a physical change or change in the method of operation shall not include. . an increase in the hours of operation or in the
production rate.
MO C F R. § 52.21 ( P 2(ui).(fl. The Company notes that, given this regulation, it could increase production at its old kilns to
100 percent of capacity, thereby vastly increasing actual emissions: why, it argues, should it not be permitted to do the same
by building a more efficient kiln and then
(Cite as: 889 F.2d 292, *298)
increasing output
The answer to this question likely lies in the statute itself, for the statute refers to the constnictior ” of facilities, not to
increased use of existing facilities See P42 U S C § 7479(2)(C ) It may also lie in a prediction that, as a general rule, new
building will more likely lead to increased emissions levels. Regardless, there is no logical contradiction in rules that, on the
one hand, permit firms using existing capacity simply to increase their output and, on the other, use the potential output of new
capacity as a basis for calculating an increase in emissions levels. And, we can find no policy conflict sufficiently serious for a
court to override the policymaking authority that Congress has entrusted to the agency
B
Inconsistency
The Company argues that EPA has interpreted its regulations inconsistently, it says that sometimes EPA has interpreted the
words “emissions unit which has not begun normal operations” to include only new units, while here it has interpreted those
words to include modified units as well. The Company points to the well-established legal doctrine that an agency “‘must
either follow its own precedents or explain why it departs from them ‘“ vNLRB,884F2d34 ,36
(tscJti9 ) (quoting 2 K Davis, Administrative Law Treatise § 8 9 at 198 (1979)) And, it argues that EPA has
(Cite as: 889 F.2d 292, *298)
provided no explanation for any such departure here
We have examined the relevant agency matenals that the parties have submitted, however, and we cannot find any significant
conflict. First, the more official EPA documents—the regulations and the written materials explaining them—make clear that
EPA does mean to include “modified units” in the category of units that have “not begun normal operations.” The preamble to
which we earlier referred, for example, says that the “amount of the proposed emissions increase” will “generally be the
potential to emit of the new or modified unit.” Eed eg52 ,6 7 (emphasis added). Second, a number of EPA internal
memoranda concerning specific projects dearly follow this interpretation Third, two or three internal memoranda and NAD
letters are ambiguous about whether modified units are, or are not, included Fourth, as EPA concedes, one NAD letter clearly
contains a contrary interpretation.
299
(Cite as: 889 F.2d 292, *299)
In our view, these materials do not show a significant, legally recognizable “conflict” within the agency for two reasons. First,
the “deviant” interpretation occurs but once EPA matenals wntlen both before, and after, the deviant letter are consistent with
its present interpretation. As the Fifth Circuit stated in NLRB v Sunnyland Packing Co. 557 F.2d 11 [ (5th Cir 19771
(Ojne swaltow doesn’t make a summer, and one inconsistent precedent does not entitle an agency litigant to demand that the
(agency) ignore prior and
(Cite as: 889 F.2d 292, *299)
subsequent holdings which have followed a uniform approach.... (Plaintiff] must do more than point to a single potentially
deviant precedent before the reviewing court can find such inconsistency in agency action as to constitute arbitrary treatment
of litigants
P’Sunnyland. 557 F 2d at 1160-61 . Second, the NAD letters and internal memoranda were written by different regional
administrators and division directors on different occasions. No large agency can guarantee that all its administrators will react
similarly, or interpret regulations identically, throughout the United States. The purpose of the “consistency” doctrine in
administrative law is not so much to assure that lower level officials will properly interpret an agency’s well-established pre-
existing policies as to prevent the agency itself from significantly changing those policies without conscious awareness of, and
consideration of the need for, change See, e g., P’AjChLSOJ7,. . p ka & Santa Fe Ry Co v 2US. 800,
80a, .9_3 S Ct .236T, 2375, 37L E . 2d 35_Q(t973) (plurality opinion) (ground for departure from prior norms must be clearly set
forth so that the reviewing court may understand the basis of the agency’s action and judge the consistency of that action with
the agency’s mandate), P’Shaw’s SuDermalkets. 884 F 2d at 41 (“Unless an agency either follows or consciously changes the
rules developed in its precedent, those subject to the agency’s authority cannot use its precedent as a guide for their conduct:
nor will that precedent
(Cite as: 889 F.2d 292. 299)
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Search Result - CTAIR - “PUERTO RICAN CEMENT” /200 EPA - Puerto Rican Cement... Page 2 of 3
check arbitrary agency action.”); ‘Chisholm v Defense Logistics Agency. 656 F 2d 42, 47 (3d Cir 1981 ) (obligation to explain
departures from precedent is an aspect of requirement that agency not act arbitrarily or capnciously); Miner v FCC, 663 F.2d
j . 157 (0 C Cir.1980 ) (agencies must explain departures from pnor precedent because • The Rule of Law requires that
agencies apply the same basic standard of conduct to all parties appearing before them’ “) (quoting J”Teamsfers Local Union
769 v NLRB, 532 F 2d 1385. 1392 (D C Cir.1976)) . The matenal we have descnbed shows no such change in EPA policy.
Lawfulness of the Regulations
{4] The Company argues that EPA’s regulations, insofar as they apply the “actual/potential” method to plant modifications, fall
outside the scope of the statute’s regulation-writing authority However, judicial review under these circumstances is governed
by M2 U S C. §i Z( ). which provides that “ [ a]ny petition for review [ of the lawfulness of a regulation] shall be filed within 60
days from the date notice of [ the regulation’s] promulgation ... appears in the Federal Register.” 4?j,J S.C. §_7607Lb)(1). EPA
promulgated the regulations in question in 1980, see 45F 4 eg ,7 5_(t9 O), other parties have challenged their
lawfulness in a suit filed in the Court of Appeals for the District of Columbia, see Chemical Mfrs Ass’n v. EPA, No
(Cite as: 889 F.2d 292, *299)
79-1112 (D C.Cir) The Company has not tried to intervene in that suit (which is still pending). It seems obviously too late for
the Company to mount an independent legal challenge here See ‘Hawai,an Elec Co. 723 F 2d at j,441 (holding that a
challenge to another provision of Q_C_ff fl_ 5221 was untimely under ‘4lj JAC .7 Z( )(1))
Regardless, the regulations in question apply to
any State implementation plan which has been disapproved with respect to prevention of significant deterioration of air quality
in any portion of any State where the existing air quality is better than the national ambient air quality standards
•300
(Cite as: 889 F.2d 292, *300)
‘40 C F R § 52 21(a ) (emphasis added), see 42 U S C §i4Z The list of states changes as implementation plans are
approved and disapproved; as of July 1, 1988, for example, provisions of 52 21 were applicable to numerous states other
than Puerto Rico. See, e.g., ‘40 C F R § 52 144 (Arizona), 52 270 (California), 52 382 (Connecticut); 52499 (Distnct of
Columbia), 52.632 (Hawaii): 52 738 (Illinois), 52.793 (Indiana), 52 931 (Kentucky), 52 1116 (Maryland), 52.1165
(Massachusetts); 52.1180 (Michigan), 52 1234 (Minnesota), 52 1280 (Mississippi), 52 1529 (New Hampshire); 52 1603 (New
Jersey), 52 1689 (New York), 52 1884 (Ohio), 52 2178 (South Dakota), 52 2303 (Texas), 52 2451 (Virginia), 52 2497
(Washington); 52 2581 (Wisconsin); 52 2676 (Guam), 52 2779 (Virgin
(Cite as: 889 F.2d 292, *300)
Islands); 52.2827 (American Samoa) These facts, in our view, mean that the regulations are “nationally applicable” and also
“based on a determination of nationwide scope or effect “ ‘42 U SC § 7607(b)(1 ) Hence, the statute requires the Company
to challenge their lawfulness in the Court of Appeals for the District of Columbia, it cannot proceed in this court. Id (challenges
to nationally applicable regulations must be brought in the Distnct of Columbia Circuit, challenges to regulations of only local or
regional applicability may be brought in any appropriate circuit)
IV.
Credit for “Contemporaneous” Decreases in Emissions
The regulations, as we have previously me itioned, measure any increase in emissions by, first, calculating the “actual”
increase in emissions, and second, offsetting any “contemporaneous” decrease in emissions, due, say, to other changes the
firm has made at the plant. See pp 296-97, supra. The Company undertook a coal conversion project in 1982-1983, which led
to a significant decrease in emissions. The EPA refused to credit the Company with this decrease because, it found, the
decrease was not “contemporaneous” with the present proposed project. The Company now argues that the EPA is wrong.
The EPA’s regulations, however, make clear that the coal project was not “contemporaneous.” They say that a decrease is
“contemporaneous” if it occurs between
(Cite as: 889 F.2d 292, *300)
the date five years before construction on the particular change commences [ ,] and the date that the increase from the
particular change occurs.
Since construction on the kiln modification has not yet “commence [ d]”, and since more than five
years has passed since the coal conversion, the Company cannot bnng itself within this “contemporaneous” window The
Company says that it filed its NAD application within five years of the time it converted to coal, but that fact is irrelevant; the
regulation speaks of “construction on the [ kiln] change,” not of an application to make the change. ‘40 C.F.R § 52 21 ( bj( )
(di). And, the history of the regulation, referring to an alternative, shorter (three year) window measured with respect to “the
date an application was complete.” makes dear that reference to a construction date (along with the longer five year window)
was intended. See ‘45 Fed Reg 6803 (19 P ) (soliciting comments on proposed regulations defining “contemporaneous” for
purposes of offsetting emissions)
Since the regulation is clear, since it does not count the 1982-83 coal conversion project as “contemporaneous,” since the
Company made no request of the agency to waive the rule, and since it cannot challenge the lawfulness of this “nationally
applicable” regulation in this court, see pp 299-300, supra, ‘42 U S.C 7607(b)(1) , we must reject its claim.
(Cite as: 889 F.2d 292, *3w)
For these reasons, the petition for review is denied and the order of the United States Environmental Protection Agency is
fi le://G :\APPS\westlaw\ WestMate\dhtml5 .htm 4/12/02
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oru c v
Z:i DU4 OF IDS \ DING
T Z DE? 1I T 0 JUSTICE
AND
TK E :VIRONM! TAL PROTECTION AGZ CY
the Departrr ent of Justice conducts the civil
litigation of th Environmental Protection Agency;
;HEREhS, the conduct of that litigation requires a
close and cooperative relationship between the attorneys
of the Depa:: ei t of Ju6tice and of the Er.viroru tental
Protection Agency;
WE REAS, the achievement of a close and cooperative
relationship requires a clarification of the respective
roles of the attorneys of the Department of Justice dn of
th Eflvironmental Protection Agency;
WHEREAS the Attorney Gerreral may decline to represent
the Agency in particular civil actions, in which case the
Aç ncy may be represented by its OAfl attorneys; and
EaEAS, most challenges to and enforcement of regulatory
standards and procedures adopted by the Environmental Pro-
tection Agency involve scientific, technical, and policy
issues and determinations developed in lengthy rulema ing
procceclings in which the Agencys attorneys have been involved
ar car. provide th necessary expertise.
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—2—
‘o:;, ar orc!, th fo1lo :ing randu of urt cr—
s:a ing is en red i.nto between the Attorney General of
5ta es and the Ad’tinistrator of the Environme t 1
Prc:actiorl ;gency or the purpose of pro .oting the efficient
and effective handling of civil iltigation involving the
Envonental Protection Agency;
1. The Attorney General of the United States (herein—
ifter referred to as the”Attorney General”) shall have
:ontrol over all cases to which the Envircn ental Protection
Aceno’.’ (hereina er referred to as the “Agency”) or the
Administrator of th £nviron ental Protection Agency (herein—
after referred to as the “Administrator”) is a party.
2. Then requested by the Ad inis.trator, the Attorney
Central sh .ll per nit attorneys employed y the Agency
(hereinafter referred to as -“Agency participating attorneys”)
to participate in cases involving direct review in t e Courts
of Ap?eal. and shall also permit such attorneys to participate
in other civil cases to which either the Agency or the
Adr in trator are a party, provided , however, that:
(a) the Administrator or his clogatc shall
desi;nate a specific Agency partic at n; attorney for
cach ca c an shall communicntc th n c of such attorney
in w:.t .ng to the Att3rncy G ncr3i;
(h) such AgcnCy :r cip tin ttOrricy :hall ‘c
cub t:t to the supcrviSi3n and co:it ] c • c t c ’r. cy
General; and
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—3—
(c) if regui:ed by the Attorney G n ral, an
Agency participating att rney shall be appointed as a
Special Attorney or Special Assistant United States
Attorney and take the required oath prior to conducting
or pa:tici ating in any kind of C urt c ir. s.
3. Agency attorneys shall not tile any pleadir.gs
or cth r docu cnts in court proceeding without the pri :
approval of the. Attorney G ne:al.
4. It is unde:stood that participation by Agency
attorneys under -th. .s me .orandu includes appearan.ces in
Court, participation in trials and oral a:g rnents, partici—
pation in the preparation of briefs, xnemo:ar.da and pleading’s,
participation in discussions with opposing counsel, cluding
settlement negotiations, and all other aspects of case
preparation normally associat d with the responsibilities
of an attorney in the conduct of litigation; provided ,
howe ,er, that the Attorney General shall retain control ov r
the c nduct of all litigation. Such control shall include
th r .gnt to allocate tasks between attorneys employed by
the Dapart ent of Justice and Agency pa:: cipating attorneys.
‘Zn allocating tasks between the Depa:ti ent’s and the Agency’s
attorneys, the Attorney General shall give due consideration
to the substantive knowledge of the respective attorneys
of the matter at issue so that the Gove:n ent’s resources
are utilized to the best advantage.
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—4—
5. In the event of any disagreener.t bc w.3e attorneys
of th2 De?artmeflt of Justice and of the Agency concerning
the conduct of any case, the Ad . inistrator may obtain a
review of the matter in question by the Attorney General.
The Attorney General shall give f 1 conside:ation to the views
and recuests of the Agency and shall make eve y effort to
elr.ate disagreements on a mutually sa: sfactory bas s. In
carrying out such reviews, the Attorney General shall consul:
with the Ad inist:ator. In i plenenting this provision, it
is undrstood tiiat-the Attorney General will not be expected
by the A inist:ator to intetfere with the direction of en’.’
trial in progress.
6. The settle .en: of any case in ‘hich tho C :: .:
cc J” ce 1 r eS *S t ce cv or the A 1n.s::atc: 3hal .
require consul:at .cn witn ar.c ccncu:rcnre o: bcth the S —
traor and the Attorney General.
7. The Ad inistra:or and the Attc:ncy G r.:: l snall
make an annual review of both the Dc a:tr nt’s and the
Agency’s pcrsonnel requirements for cjcnc ’ litigation. The
Attorney General and the Administrate: will coopc:atc in
making such appropriation requests as arc required to main—
ain their respective staffs at a level adequate to the nec 2s
of the Agency’s litigation.
8. The Attorney General shall establish specific
deadlines, not longer than 60 days, within t hich the Depart-
ment’s Attorneys xnust either file co laints in Agenc ’ cases
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—5—
or rc ort to the Atto: ey General hy a y such complaint
:t beefl filed. In the event any Depart nt Attorney
does not file a co olaint, he shall thereafter s it further
pe:io ic reports to the Attorney Gene:al until the cor.plaint
is filed or a decision is reached that it shall not be filed.
Ccpies of the reports requir d by this section shall be pro—
vi to the Agency if requested.
9. If the Attorney General fails to file a co plair.t
within 120 days of the referral of a re:uest for litigatien
an a litigatio7 report by the Agency t the Attorney General,
ther. the Adninistrator r ay request the Attorney General to
file a coI ?laint within 30 days. Yail :e of the Attorney
General to thereafter file a cc olaint within the sa d 3C
days r.ay be considered b € A inistrator or his delegate
t be a failu:e of the Attorney General to notify the Adriinis-
troto: within a reasonable time that he will appear in 1 tiga—
ticn for purposc5 of Scction 305 of the Clean Air Act, • 2
U.S.C. 1857h—3, Section 506 of the cdc:al water ?ollut on
Control Act, 33 U.S.C. 136G, or Se:t .cn 1450 of the Safe
Drin;ing Water Act, 42 U.S.C. 300;- ; : ::vidcd , however, that
the :a.1u. . o the AttO C Gene:a. tc file a con 1aint
with .n the ti c pc’:iod rc ue tcd by thc lninictrato n a
ces: in which the in staOZ r2 cs:: c ja action
un cr Scctior.s 311(e) and 504 of the c :el tc: ro1l tiCn
Ccn .rc1 Ac1 . 33 (J.. .C. 1321, 13( ”; Sc :nn 3 1 of the Clea:’
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—6—
Air Act, 42 U.S.C. 1857h—1; or Lection 1431 of the Sara
Dr. ing a er Act, 42 U.S.C. 3OC ; to :::cct o 1ic
hca1_.’ may also be cons .de_ed by the ... n stratcr to be
a failure of the Attorney General to so notify the
Ainistratorunder Secti on 305 of the Clean Air Act, 3 S
of the Federal Water Pollution Control Act or Section l45
of the Safe Drinking t ate: Act.
].]. A].]. regue ts of the Agcncy for litiça:ion
be su itted by the Agency throu;h its General Ccunsel C:
its Assistant Ad in st:a:or for nfo::e en: to the ssistant
At:o:ney Gencral for the Land and Na: :al Resct:::es D v si:n
o— o the C v ’ D vis o, excc - ::::s — -- — a-
r. 2o .ate tempcra:y res::ain .n; c:dcr ay be su nitted by
re;i:nal Ad inist:ato:s of the Agency si Itanecusly to a
Un tcd Seatos Attorney and the a :op: ata ssist n:
Attorney Genera].. Al]. reguests fo: litigation shall be
acccn anied by a standard litigation :e ::: which shall
contain such information as shall be d :c:mincd from t e—
to-time by the Attorney General to be nccossary in or c: to
prozcc te Agency litication. Simia : :ecorts shall also ho
provi cd for suits in which the Agoncy or the ! dn:: to
is a defendant, as rcqucsted by the Attorney General.
11. The Agcr cy ohall mak the rcle’.’ant filc of ar.v
m tc: th it i tho subjcct of li:ia i:: :v i1nb1 to
atto :ncls fcr t!ic Dcp rtmcnt of instice at a ccnvcn en:
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—7—.
lcca:icn when a request for liti a:ic is s ::d or
when the Depa:tner.t is requirod to dcf d thc A cncy C:
the Adx inistrat:r.
12. The Administrator shall undc:tak to review t:
Agency’s procedures for the prcpa: tion of the record in
cases involving direct review in the Courts of ?. oea .,
including analyses of such matters as ass lv, indexinc,
pa ination, tirning of pre : tion, and :ho alio:ation of
tasks betweer. the Agency and the Dea:znen:. The Ad in.s-
tratc: shall cs t ith the Att::ne General or. th
re-exar.inazicn of these p:ocef :es.
13. The negotiation cf ar.y a ree er.t t b filed in
cour: sh 11 :e ui.:e tho author :a : on an c: ::cn:e of
the Attorney Ganeral.
i . In conducting 1 t1gation for the Ad ir.istrato:, the
Attorney General shall defer to the Ad inist :ato:’s inter—
pratation of scientific and technic 1 matters.
15. Nothing in this agreerent shall affect any
•o the Sol.Lc tor General to author .:e or decline to authori:e
appea1 by the Govern .ruen fror any district court to any
appollate court or petitions to such co r z cr the is c a
of e t:aordinary writs, such as the aut:-.o:itv conferred by
28 cr 0.20, or to ca:L ’ Out his t:cc itic: l f’ r.ctions
regard to ep eals to or petitions fc: rc :c : b” r c Su : o
_l__.. —.
i . In orcTc: to. effc’cti.vc)y i . :r.t tho tc:rs of this
z: orand , the Attorney General and th Ad. inistrator will
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—8—
t:nsrnit copics of this 1er c 11 ers uc1 ac t
by its provisiono. Th s Mc ra dt 5-z11 r.ct D: c1 f th
De artmc e ar.d the Agency f:c entering into t a1iy sa is-
factory arrar.ge ents concerning the 1ing of a pa:tic 1 r
c ze.
17. This Ag: - shall .r l: tc c es ‘cd cr o—
ar:er thc &tc of a: rcva1 o t-..s it::- t by the : cv
General and the Ac inis:ratc:.
18. The At o:ney G r.eral and .d is :atc: v
de.egate their :espec:ive f::..:ns a-f :3snzibi : ..es
: : thir. A :ee n .
19. The Dc: a:: cn: anc the Itgen:y shall a ;usz thc
ccn ct of cases a:ising efc:e the effeczi.’e date cf th..s
Ag: cnt in a r a ne: c:r.sisten: :.:h the sp.:.t of ‘this
Aq:ee snt.
GR1rFN a.
Attorn ” Gal
Date: 7 1 0
/ t . 7 , (/. .
1/: . _ • • •:..
DOUGL F/ . .
Envirc: e; . rotccticn Acency
Date: (/: .... —
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D C 20460
JAN 2 51993
MEMORANDUM
SUBJECT: Procedures to Improve Coordination before the
Environmental Appeals Board
FROM: Ray LudWi Z W kc 2 _
Acting General Cot nse .
Off ice of General Cou sel
(LE—130)
Herbert H. Tate, Jr.
Assistant Administrator
Office of Enforcement
(LE— 133)
TO: Regional Counsels
Associate General Counsels
Enforcement Counsels
Attached to this memorandum are procedures which we are
adopting to improve coordination among the Office of General
Counsel (OGC), Office of Enforcement (OE) and the Offices of
Regional Counsel (ORC) on positions taken y each of our offices
before the Environmental Appeals Board (EAB). As you will
recall, the EAB requested that we work together to develop these
procedures.
The procedures adopted reflect discussions held at the
OGC/ORC management retreat in October 1992 and incorporate OE’s
existing policy in this area. In addition, these procedures
reflect comments received from many of you and comments received
from Ed Reich on behalf of the EAB.
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These procedures will be effective immediately. Under the
procedures, each of you responsible for matters which go before
the EAB is requested to designate at least one person to serve as
a contact person to aide in the coordination process established
by the procedures. The option of whether to designate one or
more persons to fulfill all these functions is up to you. By
February 12. 1993 , please identify the person(s) you are
designating to coordinate matters related to permit appeals to
Susan Lepow (FAX 202-260-7702) and the person(s) you are
designating to coordinate matters related to enforcement appeals
to Fred Stiehi (FAX 202-260-4201). They will compile a complete
list of these contacts and distribute them to you.
We believe that these procedures will go a long way toward
improving coordination among our offices on positions taken
before the EAB. We appreciate the commitment each of you is
making to improve the Agency’s administrative litigation
practice. These procedures commit our offices to evaluate our
success in implementing these procedures and accomplishing our
objectives in approximately six months. We encourage you and
your staff to actively participate in this process.
Attachment
cc: Environmental Appeals Board Judges Firestone, McCallum
and Reich
Regional Administrators
Assistant Administrator for Water
Assistant Administrator for Air and Radiation
Assistant Administrator for Solid Waste and Emergency
Response
Assistant Administrator for Prevention, Pesticides and Toxic
Substances
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OFFICE OF GENERAL COUNSEL, OFFICE OF ENFORCEMENT AND OFFICE OF
REGIONAL COUNSEL COORDINATION ON MATTERS BEFORE THE
ENVIRONMENTAL APPEALS BOARD
Under the environmental statutes administered by the
Environmental Protection Agency, the Administrator has delegated
authority to decide appeals of permit decisions made by the
Agency’s Regional Administrator’s and administrative penalty
decisions made by the Agency’s Administrative Law Judges to an
Environmental Appeals Board (EAB). The specific matters
delegated to the EAB are detailed in a final rule published in
the Federal Register on February 13, 1992, 57 Fed. Req . 5320.
At the request of the EAB, the Office of General Counsel
(0CC), the Office of Enforcement (OE) and the Offices of Regional
Counsel (ORC) have identified ways to improve coordination on
positions taken by each of these offices before the EAB. The
Office of General Counsel and the Offices of Regional Counsel
discussed this issue at the OGC-ORC Management Retreat held in
October 1992. The Office of Enforcement has had an existing
policy in this area.
Unless and until modified, this memorandum outlines the
policies and procedures which will be followed to coordinate
positions taken with respect to permit appeals and appeals of
enforcement cases (including significant interlocutory appeals)
before the EAB. Each Regional Counsel, Associate General Counsel
and Enforcement Counsel responsible for matters which go before
the EAB will designate at least one individual to serve as a
contact person to aide in the coordination process established in
this memorandum.
A. Permit AD eals
The EAB sends notice to the Regional Counsel when a notice
of appeal of a permit is filed; the Region has 45 days to file a
response with the EAB. We will request the F.AB to send a copy of
this notice to the affected Associate General Counsel and
Enforcement Counsel, as well.
After the notice of appeal is received by ORC/OGC, staff in
ORC will consult with OGC staff about each case. The discussions
will focus on any important issues raised by the case. Each case
will be handled in one of three ways: (1) 0CC will sign the
response as co-counsel and will have written or participated in
writing the response; (2) 0CC will appear as “of counsel” on the
response and OGC will have reviewed the response; or (3) OGC will
not be on the response and though ORC will have coordinated with
0CC, OGC will not necessarily review the response.
OGC and ORC will both need to consent to the appropriate
level of handling for each case. Staff in each office will
consult with their supervisors, as appropriate. Any
disagreements between the Regional Counsels and the Associate
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General Counsels will be elevated to the appropriate Deputy
General Counsel.
It is important to coordinate positions taken in one case
with other Regions and with the Headquarters program office.
Significant enforcement issues may also be raised in the context
of certain permit appeals. In appropriate cases OGC and CRC
staff need to coordinate with OE, other Regions and their
respective program offices before a response is filed. Upon
receipt of a notice of appeal, the Enforcement Counsel or CE
Branch Chief will identify any enforcement issues that should be
addressed in the appeal. In most cases it may be adequate for CE
and other Regions to be informed of positions taken before the
EAB through the monthly OGC/OE/ORC branch chief conference calls.
This will be a standing agenda item for the monthly calls; the
ORC branch chief will generally be responsible for leading this
discussion.
It is important for the Regions to coordinate as early as
possible with all Headquarters offices on the issues raised in
permit appeals and requests for evidentiary hearings so that EPA
will be advancing consistent positions. Some of this
coordination needs to be initiated by the program offices and
some by ORC.
B. Enforcement A eals
There is less time for the Agency to decide its position on
appeals of enforcement cases. Pursuant to 40 CFR section
22.29(a), enforcement appeals typically obtain as a matter of
right, and the Agency must file its notice of appeal and an
accompanying brief within 20 days after service of the-initial
decision or order of the Presiding Officer. See 40 CFR section
22.30(a). 1
In a May 3, 1989 memorandum from then Acting Assistant
Administrator Edward Reich, a process was established to provide
for review of adverse decisions of ALJ5 as well as favorable
decisions that are appealed by the respondent. (See attached
memorandum.) That process is still an appropriate method to
provide an efficient way to identify and address important issues
in a case that should be raised to the EAB. It should be noted
that important legal and policy issues warranting an appeal may
be raised in cases even though the Agency prevailed in the relief
sought. This memorandum reaffirms the procedures of the earlier
memorandum with the following modifications.
In appropriate circumstances, agency counsel, however,
may seek leave from the EAB for extensions of time in which to
file such appeals or briefs, if they can satisfy the requirements
of 40 CFR section 22.07(b). Depending on the circumstances, it
may be advisable to seek an extension only for the filing of the
brief, rather than the notice of appeal.
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The ORC attorneys will consult directly with the Regional
Counsel (or Deputy Regional Counsel if so directed by the
Regional Counsel) to discuss their recommendation as to whether
EPA should appeal each enforcement case. This view should be
included in the summary of the decision forwarded to the OE
Branch Chief, the OGC Branch Chief, and the ORC contacts. The
Regional Counsels will report on decisions to appeal enforcement
cases in their weekly report to Headquarters. Decisions in
Headquarters cases will be reported in OE’s Weekly Highlights.
As with permit appeals, each case where a decision is made to
proceed with an appeal will be handled in one of three ways: (1)
OE will sign the brief as co-counsel and will have written or
participated in writing the brief; (2) OE will appear as “of
counsel” on the brief and OE will have reviewed the brief; or (3)
OE will not be on the brief and though ORC will have coordinated
with OE, OE will not necessarily review the brief.
The Regional Counsels and Enforcement Counsels will take
personal responsibility to decide what kind of coordination is
necessary with OGC before a decision is made to seek, or forego,
an appeal of an enforcement case. 0CC agrees to identify any
generic areas where it needs to be consulted on a routine basis
-before a decision to appeal or not to appeal is made.
C. Headauarters Assistance to EAB
Subject to the prohibition on arte communications,
not hing in this memorandum is intended to derogate the ability of
0CC or OE to provide technical assistance to the EAB when the EAB
deems it appropriate.
As part of their participation in the review of appeals, 0CC
and OE should assure that any relevant policies or new
regulations are brought to the attention of the Board, since
Headquarters offices will often be more aware of such matters
than Regional offices.
D. Oral Arauments
The attorney best able to present the Agency’s position
should present oral argument to the EAB. This will be decided on
a case by case basis. The Board has a strong preference in favor
of having a single attorney present the Agency’s argument.
Nevertheless, the Board has allowed more than one attorney to
divide the argument where the Agency deemed it essential for the
effective presentation of its case. Accordingly, there should be
an opportunity for Regional and Headquarters attorneys to argue
before the Board in appropriate cases.
Any disagreements between the Regional Counsel and the
Associate General Counsel or Enforcement Counsel regarding who
should present the oral argument to the EAB will, be elevated to
the appropriate Deputy General Counsel or Director of Civil
Enforcement.
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The Agency attorney(s) presenting oral argument should be
able to represent to the fullest extent possible that the
positions taken in argument have been coordinated with, and
approved by, CRC, OGC and OE, as appropriate.
E. Decisions
The EAB sends copies of all final decisions to the Regional
Counsels, the Associate General Counsels and the Enforcement
Counsels.
F. Follow-up
Our success in implementing these procedures and
accomplishing our objectives will be evaluated in an ORC/OGC/OE
conference call in approximately six months.
Attachment
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iEO $i .
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
PRO
OFFICE OF
ENFORCEMENT AND
COMPLIANCE ASSURANCE
PRIVLLEGED/CONFIDENTIAL/ DO NOT RELEASE
August 7, 2000
MEMORANDUM
SUBJECT: Revised Procedures to Strengthen Enforcement Program’s Advocacy in
Environmental Appeals Board Matters
FROM: Steven A. Herman 1sf [ Sylvia Lowrance for Steve Herman]
Assistant Administrator
TO: Regional Counsels
Regional Enforcement Coordinators
Regional Enforcement Division Directors
OECA Office Directors
Associate General Counsels, Office of General Counsel
The purpose of this memorandum is: (1) to reiterate the importance of strong and effective
advocacy in Environmental Appeals Board (EAB) matters; (2) to update our existing EAB
coordination procedures to reflect several Headquarters and Regional reorganizations; and (3) to
revise our coordination procedures to take into account more than seven years of administrative
litigation experience since the Headquarters enforcement office and Office of General Counsel
(OGC) instituted the initial EAB coordination procedures.
As a result, effective immediately, the enforcement coordination procedures in this
memorandum replace and supersede those contained in the January 25, 1993 memorandum from
the Acting General Counsel, Ray Ludwiszewski, and the Assistant Administrator for Enforcement,
Herbert H. Tate, Jr., entitled, “Procedures to Improve Coordination before the Environmental
Appeals Board.” Note that although the revised procedures in this memorandum apply to both
civil administrative regulatory enforcement and site remediation enforcement matters, they do not
apply to appeals of permit-related determinations. Coordination on permit-related matters remain
subject to the 1993 guidance and any subsequent guidance issued by OGC.
The site remediation enforcement matters that potentially would be argued before the
EAB, and which are covered by these revised procedures, include: (1) CERCLA § 109 penalty
matters; (2) CERCLA § 106(b) reimbursement petitions (which are defensive petitions that EPA
does not have a choice in litigating before the Board); and (3) RCRA § 3008(h) corrective action
matters that: (a) also contain RCRA § 3008(a) penalty or injunctive counts; (b) seek suspension or
revocation of “interim status”authorization to operate under RCRA § 3005(e); or (c) seek penalties
under RCRA § 3008(h)(2) for violation of a RCRA § 3008(h) order.
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2
As you review the revised procedures below, you will fmd that the major changes to the
coordination process are as follows:
The Headquarters regulatory enforcement office (currently the Office of Regulatory
Enforcement (ORE)) and site remediation enforcement office (currently the Office
of Site Remediation Enforcement (OS RE)) have a greater role in helping Regions to
ensure that the appropriate people and offices nationally are involved in considering
whether to appeal adverse decisions issued by Administrative Law Judges (ALJs).
• Instead of the numerous approaches regarding which enforcement office can initiate
EAB appeals, there is now a uniform approach across all statutes that EPA enforces,
and it includes a concurrence role for the Headquarters regulatory enforcement
office director (currently the ORE Director) and site remediation enforcement office
director (currently the OSRE Director) in all EAB-related matters, and a
consultation role for Regions in cases initiated by Headquarters that affect the
Regions.
• OGC now has a formal concurrence role on all EAB matters involving CERCLA §
106(b) reimbursement petitions,-and the General Counsel or appropriate Associate
General Counsel can ask the lead Headquarters enforcement office for a concurrence
role in other enforcement-related matters raising novel questions of statutory or
regulatory interpretation or which otherwise are significant to the Agency’s overall
implementation of environmental laws.
• Regional senior legal enforcement managers (currently the Regional Counsel in most
Regions) 2 and Headquarters senior enforcement program managers (currently the
ORE and OSRE Directors) are now expected to review and concur in writing on the
substantive positions taken by their office in EAB-related matters.
• Responsibility is clearly assigned for continued monitoring of EAB-related matters
beyond the filing of appeal briefs, and even beyond an EAB decision, to ensure that
changes in the law, orders to file supplemental briefs, motions, reconsideration
possibilities, petitions for judicial review, and other significant developments receive
prompt and effective attention.
2 Any references in these procedures to the Office of Regional Counsel also refer to
Regional offices that carry out the Region’s legal enforcement functions under a different name
(e.g., the Office of Environmental Stewardship in Region I, and the Office of Enforcement,
Compliance, and Environmental Justice in Region VIII).
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3
The revised procedures in this memorandum are effective immediately. 3 They reflect a
consensus reached during the November 1999 ORE/OGC/Regional Counsel national meeting in
Washington, D.C., and incorporate comments that we received from Regional and Headquarters
enforcement managers and administrative enforcement practitioners.
The procedures in this memorandum are organized chronologically, beginning with a
discussion as to how Headquarters and Regions learn of decisions that may be candidates for an
EAB appeal and then continuing with a description as to how decisions are made whether to
appeal, who is responsible for various aspects during an appeal, and concluding with procedures
for how to coordinate our efforts when EAB decisions are subject to judicial review. For each
aspect of that process, below we briefly describe the previously existing procedures, the new
procedures as revised in this memorandum, and the reasons for such changes.
§ 1.0 LEARNING OF POTENTIALLY APPEALABLE DECISIONS
§ 1.1 Previous Procedures : Under the 1993 coordination procedures, the Headquarters
enforcement office and the Regions learn of Initial Decisions and interlocutory rulings through the
efforts of the office that initiated the case, usually a Region. Under such procedures, Regions are
responsible for sending decisions, summaries, and recommendations by facsimile (FAX), within
three days of receipt of the adverse decision or an appeal of a favorable ruling, to affected
Headquarters enforcement divisions, OGC, and appropriate contacts in other Regions.
§ 1.2 Revised Procedures : This memorandum reaffirms the previous procedures, except that we
add the following procedures:
A. Electronic transmission of presiding officer/AU rulings is preferred, where time
permits, to allow for easier and more timely forwarding to all appropriate managers
Although we are planning on conforming Agency delegations of authority to be consistent
with this memorandum’s changes concerning Headquarters concurrence on, and Regional initiation
of, decisions to appeal under some statutes, the procedures in this memorandum should be
implemented immediately, pending conclusion of those delegation changes. Such procedural
changes are consistent with the existing guidance requiring OECA concurrence on cases of national
significance. “Redelegation of Authority and Guidance on Headquarters Involvement in Regulatoiy
Enforcement Cases, “memorandum from Steven A. Herman, Assistant Administrator (July 11,
1994).
In essence, this memorandum formally defines all EAB-related enforcement matters as
nationally significant. This is already the case for all federal facility matters. Currently, OECA’s
Federal Facilities Enforcement Office (FFEO) is the lead OECA office for Federal facility cases.
FFEO participates in enforcement negotiations, oversees enforcement activities undertaken by the
Regions, and along with the Regions, is responsible for resolving enforcement disputes between
EPA and other federal agencies. Since all federal facility enforcement cases are nationally
significant, the Regions must consult with FFEO and in some cases gain concurrence. FFEO
coordinates with the Regions on any notices of violations, interagency agreements, penalty and
compliance orders and agreements involving federal agencies under all relevant environmental
statutes. For any enforcement action involving a Federal facility, including an appeal to the EAB,
the FFEO Director is the concurring authority.
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4
and staff. 4 For all AL! rulings (both Initial Decisions and interlocutory orders), any
interested offices at Headquarters and the Regions have an independent
responsibility to check the ALl’s Internet site regularly and to raise significant issues
to the appropriate national enforcement program managers (currently in ORE and
OSRE). Ultimate responsibility, however, rests with the complainant’s lead legal
counsel 5 to inform others on the national distribution list of AU rulings in their
cases.
B. The national enforcement program leaders (currently ORE and OSRE) are
responsible for keeping the electronic distribution lists accurate and for ensuring that
all appropriate Regional and Headquarters managers receive regular updates to such
lists. 6
§ 1.3 Reasons for Changes : This new responsibility upon the national enforcement program
leaders is required because such offices are better equipped than Regions to identify the relevant
persons or offices that need to be involved in deliberations and to guide EAB-related matters
through the national program implications that often arise. Past experience has shown that the
national enforcement office can better maintain an accurate and thorough distribution list, due to
numerous Regional reorganizations and the Regions’ general reliance on Headquarters offices to
transmit new information to Regional offices.
This is not yet feasible for interlocutory decisions because the Office of Administrative
Law Judges (OALJ) currently does not place the ALl’s rulings on its web site (www.epa.gov/oalj)
consistently within the 10-day interlocutory review period provided in 40 C.F.R. § 22.29. We
anticipate, however, that this situation will change in the near future and will notify you if that
occurs. In the meantime, until further notice, Regions should send via FAX to potentially affected
Headquarters offices (currently ORE, OSRE, FFEO, and OGC) any substantive interlocutory
decisions (e.g., orders on motions to dismiss or for accelerated decision) immediately upon receipt
(i.e., within one business day). In cases where the lead Headquarters enforcement office feels that
a national dialogue would be appropriate and timely, it will assist in disseminating such
interlocutory rulings more broadly.
Normally, this is the Assistant Regional Counsel. In some Regions, however, the tide of
the legal staff attorney may be different. For example, currently in Region I, the reference in
these procedures to Assistant Regional Counsel refers also to the staff attorney assigned to a given
matter by the EPA New England Region’s Office of Environmental Stewardship.
6 Under current organizational structures, this will require the ORE and OSRE Divisions to
revise the list of recipients to ensure that, at a minimum, Regional Counsels, Regional
Enforcement Coordinators, Regional Enforcement Division Directors, administrative practice
experts, the appropriate OGC contact, and the appropriate OECA Division Directors, are included
on the distribution list. In addition, such distribution lists should include any other Regional
managers that are appropriate to the affected statutory media programs and other offices and
individuals (e.g., in the federal facilities and criminal enforcement programs) as appropriate in
individual cases. For example, the criminal enforcement program must be notified if there is a
parallel criminal investigation or prosecution pending.
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5
§ 2.0 COORDINATING DELIBERATIONS REGARDING WHETHER TO APPEAL
§ 2.1 Previous Procedures : Under the 1993 coordination procedures, Regions are responsible for
scheduling a conference call with Headquarters and appropriate contacts in other Regions, to be
held within four days of when the ALT decision is sent out.
§ 2.2 Revised Procedures : Under the procedures adopted in this memorandum, the Headquarters
enforcement offices (currently ORE and OSRE) ultimately are responsible for ensuring that any
appropriate national conference calls occur, ordinarily within four business days after
complainant’s lead legal counsel disseminates the ALT decision, and that the proper persons/offices
nationally have an opportunity to provide timely input. Complainant’s lead legal counsel will work
with the affected national enforcement program leaders (currently ORE and OSRE) to coordinate
any such deliberations. 7 The affected Headquarters enforcement program leaders will coordinate
with other Regions, Headquarters offices (including OGC), and the Department of Justice (DOS) as
appropriate. 8
§ 2.3 Reasons For Changes : The increased involvement by the Headquarters enforcement office
in coordinating these deliberations reflects both its national program leadership role and a need to
ensure that the appropriate people and offices nationally are involved in guiding EAR-related
Although such national conference calls generally are very helpful and should occur in
most circumstances, the procedures adopted in this memorandum are intended to leave
Headquarters with discretion to combine these deliberations with other national conference calls or
to omit such discussions entirely in appropriate circumstances (e.g., where the case raises little or
no nationally significant implications).
DOJ would not have a formal concurrence or consultation role on decisions whether to
file EAR appeals or on the substance of appeal briefs, but the new procedures recognize that DOJ
may have valuable input to offer. For example, in cases involving the relationship between
judicial and administrative enforcement, DOJ’s participation may be particularly valuable. See In
re: Lyon County Landfill, 8 EAD — (EAR 1999) (noncontinuing Clean Air Act violations that
first occurred more than 12 months before complaint filing can be enforced administratively and
need not be pursued judicially). Another example arises in the context of parallel criminal
proceedings, where DOJ input will be especially important. In such cases, the Headquarters
criminal enforcement program lead contact should ensure that the DOJ prosecutor is included in
the discussion process.
Similarly, OGC does not gain an automatic concurrence role on all EAB matters under
these procedures. These procedures, however, do provide OGC with a concurrence role on all
EAR matters involving CERCLA § 106(b) reimbursement petitions. In addition, for all other
enforcement-related matters, the General Counsel or appropriate Associate General Counsel can
ask the lead Headquarters enforcement office for such a role in cases raising novel questions of
statutory or regulatory interpretation or which otherwise are significant to the Agency’s overall
implementation of environmental laws. When in doubt as to whether the case raises such issues,
we encourage complainant’s lead counsel to promptly seek OGC input. When complainant’s lead
counsel is fairly certain that the case raises novel statutory or regulatory interpretation issues or
issues that are otherwise significant to the Agency’s overall implementation of environmental laws,
OGC must be consulted.
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6
matters through the national program implications that often arise. The flexibility now expressly
recognized in the time period in which to hold a conference call is not intended to encourage
widespread deviations from the 4-day presumptive time period, but instead incorporates both the
additional time allowed in the rules for appealing adverse ALl rulings 9 and the practical need to
depart from this in appropriate circumstances, provided all significant issues are fully discussed in
a prompt and timely manner.
§ 3.0 DECIDING WHETHER TO APPEAL ADVERSE DECISIONS TO THE EAB
§ 3.1 Previous Procedures : The 1993 coordination procedures can be read to imply that there is a
single approach to who makes the ultimate detennination whether to appeal enforcement cases to
the EAB. When reviewing the longstanding Agency delegations,’° however, you will note that this
implication is wrong and that there are numerous different consultation and concurrence
requirements. For example, under some statutes (e.g., RCRA and EPCRA), Regions have
authority to file appeals in cases that they had initiated, subject to the requirement that they consult
with the Headquarters enforcement Assistant Administrator (AA). 1 ’ Under the Safe Drinldng
Water Act (SDWA) and Clean Water Act (CWA), Regions must do more than consult with OECA
when appealing adverse rulings; the OECA AA must concur on the decision to file an appeal.’ 2
Under other statutes (e.g., FIFRA, TSCA, and the Clean Air Act), only the OECA AA can file
and represent EPA in EAB appeals, even in cases that had been initiated by a Region.’ 3
§ 3.2 Revised Procedures : Under the procedures adopted in this memorandum, Regions have
authority to make these determinations and file appeals in cases that they initiate, subject to
concurrence by the appropriate national enforcement program leader (currently the ORE or OSRE
Directors).’ 4 The national enforcement program leader has authority to make these determinations
EPA extended the time period in which to file EAB appeals, to 30 days after the initial
decision is served, 40 C.F.R. § 22.30, and to ten days after service of any interlocutory rulings,
40 C.F.R. § 22.29.
‘° Currently on EPA’s Intranet at http://intranet.epa.gov/rmpolicy/ads/dm/toc.htm.
The RCRA Delegation is number 8-9-B (5/11/94) and the EPCRA Delegation is number
22-3-B (5/11/94).
12 The SDWA Delegation is number 9-33-B (5/11/94) and the CWA Delegation is number
2-52-B (5/11/94).
The FIFRA Delegation is number 5-15-A (5/11/94), the TSCA Delegation is number 12-
2-B (5/11/94), and the CAA Delegation is number 7-41-B (5/11/94).
H To the extent that potential appeals also raise issues within the expertise and/or
responsibility of persons other than the national enforcement program leader, any such persons
should be consulted when making these determinations. As appropriate and agreed upon, such
persons also potentially should be involved in further aspects of the appeal such as drafting or
review of briefs and in oral argument or preparations for oral argument. For example, currently
Michael Walker and Helene Ambrosino of OECA coordinate the national enforcement program’s
(continued ..)
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7
and file appeals in cases that he or she initiates, subject to consultation with affected Regions and
OGC as appropriate. The effect of this change is to create one uniform approach where there are
now many, resulting in an increase in OECA’s and OGC’s involvement under some statutes and an
increase in the Regions’ role under others.
All persons at EPA and DOJ involved in discussions concerning whether to appeal an
adverse decision to the EAB are expected to attempt to reach a consensus as soon as possible,’ 5 and
any significant disagreements must be elevated in a timely manner to enforcement managers for
resolution. Finally, we emphasize that in exercising this concurrence role, the Headquarters and
Regional decisionmakers’ concurrence is needed on both the decision to appeal and on the basic
arguments to be made on appeal (i.e., what particular issues to appeal and what our position should
be on such issues).’ 6 Although such EAB appeal determinations will take into account many
factors, these analyses must be guided primarily by whether the ALT’s decision comports with the
applicable statutes, Agency regulations, policies, and published decisions, and with applicable court
decisions.
§ 3.3 Reasons For Changes :
A. Need For A Uniform Approach Across All Statutes . There are no compelling
reasons to have so many different approaches to consultation and/or concurrence
depending upon which statute the appeal issues may arise under. The numerous
media-specific approaches have resulted in confusion amongst many senior
enforcement managers and staff; their not knowing the proper coordination processes
for their media sometimes may result in less effective advocacy in cases.
B. Justification For Greater Headquarters and Regional Involvement . The EAB’s
decisions have broad precedential impact beyond any individual Region, and adverse
14( continued)
administrative litigation training and development efforts, and they are extremely valuable sources
of guidance and counsel on matters involving administrative litigation practice and procedure.
Similarly, Gary Jonesi coordinates OECA’s efforts to develop consistent and effective litigation
positions on nationally significant issues that have crosscutting implications across more than one
statutory program, regardless whether such issues arise in an administrative or judicial context.
Also, certain civil administrative matters may have potentially significant implications for criminal
enforcement, making continuing involvement by OCEFT appropriate in selected cases or issues.
Ordinarily, such decisions should be made in the national conference calls or within four
business days thereafter. Our timeliness in deciding whether to appeal may depend, however, on
the complexities and other circumstances surrounding the case (e.g., where the EAB grants an
extension of time in response to our request to more fully consider nationally significant policy or
litigation concerns, it may be appropriate to take additional time in reaching a final decision
whether to appeal). In such cases, we remind you to file motions for extension of time well in
advance of the otherwise applicable filing deadline.
- 16 Such concurrences must be in writing (initialing a concurrence sheet associated with an
approval memorandum or brief is sufficient) and must be maintained in the concurring office’s file
or transmitted to other affected offices.
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8
&4B rulings are not appealable by EPA. ’ 7 The Agency’s enforcement program must
speak with one consistent voice in its positions before the EAB. A greater role for
the national enforcement program leaders will help to ensure that these
considerations are taken into account. In cases initiated by Headquarters, the
procedures reflect that Regions have an express right to be consulted, since these are
matters that affect facilities in their Region, their relationships with States, and other
issues of interest to the Regions.
C. Justification For Higher Level Management Review In Regions and Headquarters .
Although EPA has had considerable success in its administrative enforcement
practice, continued diligence is necessary to maintain and increase our efforts to
ensure that consistent and effective positions are taken in litigation. Historically,
decisions whether to appeal have been made by Regional and/or Headquarters staff
or their immediate managers, without always incorporating the broad and
experienced perspective that senior legal enforcement managers may be able to offer.
Although staff attorneys will retain the lead for these matters and are an
indispensable part of this process, these revised procedures expressly recognize that
senior enforcement managers in both the Regions and at Headquarters can add
significant value to the EAR appeal process and that their input is both important and
necessary. In cases initiated by Regions, concurrence is needed from the senior legal
enforcement manager (the Regional Counsel in most Regions) on both the substance
of the decision to appeal and on the basic arguments on appeal, in order to enhance
the quality of our advocacy, to help ensure that these issues get priority attention,
and to ensure that we fully consider the potentially broad regional and national
impacts of these matters. Concurrence of the national enforcement program leaders
(currently the ORE and OSRE Directors), and in some cases OGC, on such EAR
matters wifi help to ensure that these issues get priority attention and that they
consider the potentially broad national impacts that may be raised.
§ 4.0 DRAYHNG BRIEFS AND OTHER SUBSTANTIVE FILINGS IN EAR APPEALS
§ 4.1 Previous Procedures : Under the 1993 coordination procedures, the primary drafter of EAR
filings (appeal briefs, motions, supplemental briefs, etc.) is the complainant’s lead legal counsel.
Normally, this is the Assistant Regional Counsel, but in Headquarters-initiated cases it currently is
an OECA staff attorney. For the typical Regionally-initiated case, Headquarters participation in
drafting all or part of EAR filings is done as “necessary” but such circumstances are not defined or
otherwise described. Under CERCLA, Headquarters has had a consultation role on substantive
‘ Although EPA cannot appeal adverse EAR decisions, it can in limited circumstances seek
reconsideration from the Board. 40 C.F.R. § 22.32. Once the EAR issues a final order after, or
in the absence of, any reconsideration, this memorandum takes no position as to the possible
collateral estoppel effects of such final order (e.g., the effect of a CERCLA § 106(b)
reimbursement ruling on a separate CERCLA § 107 cost recovery action).
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9
pleadings filed in § 106(b) reimbursement petitions’ 8 and on appeals from adverse § 109
administrative decisions.’ 9
§ 4.2 Revised Procedures : With the exception of a concurrence role for OGC in some cases (see
footnote 8 above), no significant changes are proposed. The revised procedures, however, clarify
that the case-by-case determination as to who drafts any particular filing or portion thereof
ultimately is to be made based on who is best able to present the enforcement program’s position.
Although the presumption will be that lead counsel in the office that initiated the case will have the
lead role in drafting such documents, these decisions should continue to take into account the
expertise and experience of available attorneys, resource implications, the national significance of
the issues involved, and any other appropriate factors. This memorandum also emphasizes that any
possible disagreements must be elevated in a timely manner to enforcement managers, and OGC as
appropriate, for resolution. It also provides a reminder that, regardless who does the drafting, the
Headquarters and Regional managers designated to concur on appeal determinations must timely
review and concur on the basic arguments made in all substantive pleadings and briefs that are filed
with the EAB.
§ 4.3 Reasons For Changes : Coordination on the drafting of briefs and other substantive filings
over the past several years generally has been very cooperative and productive, characterized by
sensible work-sharing arrangements between Regions and Headquarters. 2 ° The additional
reminders about representing the entire enforcement program’s position, elevating disagreements in
a timely manner, and OGC’ s role, are included in order to emphasize how critical it is that our
EAB filings be as strong as possible and that they reflect the national program position and not
merely that of an individual attorney, Region, or media program.
§ 5.0 SIGNING EAB FILINGS
§ 5.1 Previous Procedures : Under the 1993 coordination procedures, Regional staff normally sign
EAB filings in cases that they had initiated, and in certain undefmed circumstances, Headquarters
may also sign such filings or be listed as “of counsel” on the filings.
§ 5.2 Revised Procedures : Regional legal staff still will sign briefs and other EAB filings in cases
that they have initiated. In addition, at least one staff or management level attorney within the
‘ Revisions to OECA Concurrence and Consultation Requirements for CERCLA Case and
Policy Areas, memorandum from Barry Breen, Director, Office of Site Remediation Enforcement
(September 30, 1998). This document is superseded by the procedures in this memorandum to the
extent that EAB-related site remediation matters will now require Headquarters concurrence.
See CERCLA Delegation number 14-32 (5/11/94).
20 Often, this has involved Regions drafting fact-specific documents or portions thereof and
Headquarters drafting the documents or portions thereof that involve nationally significant legal or
programmatic concerns. This reference to past practices, however, should not be interpreted to
establish a presumption in favor of such arrangements or to preclude different types of
arrangements in the future, provided the Regional and Headquarters offices agree on the
approaches. For example, an experienced Regional attorney with extensive involvement in a
complex case may be in a better position to draft briefs on nationally significant issues than a new
Headquarters attorney with little experience, time, or prior involvement in that complex case.
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10
appropriate Headquarters enforcement office (currently ORE or OSRE) ordinarily will sign any
substantive briefs, motions, or other EAR filings. 2 ’ Although not required, this memorandum also
encourages Regional and/or Headquarters senior enforcement managers to sign selected EAR briefs
or other EAR filings, especially where such documents raise important issues and we want to
emphasize their significance to the EAR. In addition, in certain cases, particularly those raising
novel statutory or regulatory interpretation issues, the Headquarters and Regional staff involved in
the case should consider whether it may be helpful to have an OGC attorney or manager sign the
filing or be listed as “of counsel” on the filing.
§ 5.3 Reasons For Changes : Routinely adding at least one Headquarters signature to substantive
filings in Regional-lead cases will provide additional assurance to the EAR that it is receiving the
position of the entire national enforcement program and not merely the views of an individual
Regional staff attorney or Regional office. This also should help to ensure greater national
consistency in the enforcement program’s positions and national priorities. The recommendation
that senior enforcement managers consider signing at least some of the EAB filings is intended to
balance the workload demands on such senior officials with the benefits of signaling to the EAR
that selected issues and cases are extremely important. Regardless whether such senior enforcement
managers choose to sign, it is always appropriate to state in briefs and other EAR filings that the
issues are important and why that is so.
§ 6.0 ORAL ARGUMENT
§ 6.1 Previous Procedures : The 1993 coordination procedures state that the decision as to who
represents the enforcement program in oral argument is decided on a case-by-case basis, depending
on who is best able to present the enforcement program’s position. It also notes that one attorney
normally argues, but that more than one is appropriate in some cases, and that any disagreements
between Headquarters and the Regions are to be elevated to enforcement managers for resolution.
In practice, it has not been uncommon to have two attorneys participating in oral argument.
§ 6.2 Revised Procedures : No significant changes are adopted in this memorandum, but we do
provide more specific guidance on several points. First, the case-by-case determination as to who
presents oral argument still must be based on who is best able to present the entire enforcement
program’s position, and not just the position of a single attorney, Region, or media program.
Although the presumption will be that lead counsel in the office that initiated the case will have the
lead role in presenting oral argument, these decisions wifi continue to take into account the
expertise and experience of available attorneys, resource implications, the national significance of
the issues involved, and any other appropriate factors. This memorandum also emphasizes that any
possible disagreements must be elevated in a timely manner to enforcement managers for
21 Headquarters signatures or concurrences are not expected on insignificant nonsubstantive
filings such as routine motions for extension of time in Regionally-led cases. In addition, in rare
circum stances where, despite adequate advance planning, the Region cannot obtain the signature of
a Headquarters staff or management-level attorney in time to meet a filing deadline in a Regional-
lead case, Headquarters may concur on such a substantive filing orally or in writing (including
electronically) rather than by signing the filing. In the normal case where Headquarters does sign
EAR filings in Regional-lead cases, it often will be more expeditious to have Headquarters sign last
(or simply sign for the Region) and hand-carry the documents to the EAB for filing rather than
sending the document back to the Region for mailing, especially since EAR filing deadlines under
current rules are met only when the EAB receives the document.
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I’
resolution, and it provides a reminder that, regardless who presents oral argument, the
Headquarters and Regional enforcement managers designated to concur on appeal detenninations
must concur on the basic arguments expected to be made at oral argument. Also, the decision as to
who will present oral argument should be made as early as possible, at least one moot court should
occur in advance of the argument, and the person representing complainant at oral argument should
have sufficient training or experience in litigation and/or administrative practice, as well as in the
substantive statutes at issue. 2
§ 6.3 Reasons For Changes : No significant changes are adopted because over the past several
years the coordination of oral arguments generally has been very cooperative and productive, often
characterized by sensible work-sharing arrangements between Regions and Headquarters. 23 The
additional specificity and guidance in the revised procedures is intended to help ensure that counsel
are appropriately trained and fully prepared to put forth the best oral advocacy possible.
§ 7.0 CONTINUED MONITORING
§ 7.1 Previous Procedures : The 1993 coordination procedures do not expressly discuss who is
responsible for continued monitoring of the case for significant developments such as changes in
law, issuance of orders to file supplemental briefs, or the need to file unanticipated motions,
responses, or other documents with the EAB.
§ 7.2 Revised Procedures : Under the procedures adopted in this memorandum, complainant’s
lead legal counsel of record is responsible for informing all persons and offices who concurred on
or signed the appeal brief of any new developments that may warrant filing a supplemental brief,
motion, or taking other action. The national enforcement program leaders (currently ORE and
OSRE) wifi assist the complainant’s lead counsel of record in coordinating discussion of these new
developments with other Regions, Headquarters offices (including OGC), and DOJ, as
22 As a reminder, counsel should never guess in answering the EAB’s questions at oral
argument. Instead, when faced with a question that cannot be answered authoritatively and
accurately (e.g., concerning the potential impact of an adverse EAB ruling on the enforcement
program), counsel should tell the EAB that he or she does not know the answer and that he or she
will provide an informed response after oral argument, should the EAB so desire. Exercising
sound discretion, and appropriate restraint, when faced with a difficult question is important to
maintaining the integrity of our positions on the record and for the overall credibility of the
enforcement program.
Often, this has involved Regions arguing fact-specific issues that they are more familiar
with while Headquarters presents oral argument on issues that involve nationally significant legal
or programmatic concerns. This reference to past practices, however, should not be interpreted to
establish a presumption in favor of such arrangements or to preclude different types of
arrangements in the future, provided the Regional and Headquarters offices agree to the
approaches. For example, an experienced Regional attorney with extensive involvement in a
complex case may be in a better position to present oral argument on nationally significant issues
than a new Headquarters attorney with little experience, time, or prior involvement in that complex
case.
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12
appropriate. 2 ’ The lead counsel of record, however, ultimately is responsible for ensuring that any
appropriate coordination occurs and that appropriate action is taken.
§ 7.3 Reasons For Changes : It has been increasingly common for the EAR to issue orders for
supplemental briefing and requests for additional legal authorities, and for opposing parties to file
motions concerning significant legal issues. The reason for designating the complainant’s lead
counsel of record as the primary person responsible for initiating this process is because such
person: (1) will receive service of any orders from the EAR or motions from opposing counsel; (2)
may have an independent obligation to raise certain new legal developments to the adjudicatory
body and/or opposing counsel; and (3) ultimately is responsible for making sure that the case
progresses appropriately. The reason for requiring that the national enforcement program leaders
assist in coordinating this process is to help ensure that these issues get priority attention and that
they consider the potentially broad national impacts that may be raised. Also, our EAB filings at
all stages of litigation must be as strong as possible and must reflect the national program position
and not merely that of an individual attorney, Region, or media program.
§ 8.0 JUDICIAL REVIEW OF EAR DECISIONS
§ 8.1 Previous Procedures : The 1993 coordination procedures do not expressly discuss how to
handle EAR rulings that become subject to judicial review.
§ 8.2 Revised Procedures : Consistent with the continued monitoring procedures discussed
immediately above, complainant’s lead legal counsel of record is responsible for informing all
persons and offices who concurred on or signed the appeal brief and OGC that a petition for review
or complaint against EPA has been filed in court. 25 OGC will then request representation from the
Chief of the Environmental Defense Section (EDS) at DOJ. If OGC and/or DOJ learn of such
judicial review prior to that time, we are requesting that they notify the complainant’s lead legal
enforcement counsel so that such enforcement counsel can disseminate this infonnation to
appropriate persons and offices at Headquarters and the Regions. Once notification has occurred,
complainant’s lead legal enforcement counsel will work with the appropriate national enforcement
program leaders (currently ORE and OSRE) and the assigned OGC attorney to: (1) establish the
Agency’s preferred positions in litigation; and (2) assist the OGC attorney in communicating such
Although national conference calls generally are very helpful and should occur in most
circumstances, the procedures adopted in this memorandum are intended to leave Headquarters
with discretion to combine these deliberations with other national conference calls or to omit such
discussions entirely in appropriate circumstances (e.g., where the new developments in such cases
raise little or no nationally significant implications).
25 In the federal facility enforcement context, petitions for review of EAR decisions are not
appropriately filed in court. Under 40 C.F.R. § 22.3 1(e), if a fmal order of the EAR is issued to a
department, agency, or instrumentality of the United States, it becomes effective 30 days after its
service upon the parties unless the head of the affected department, agency or instrumentality
requests a conference with the Administrator in writing and serves a copy of the request on the
parties of record within 30 days. In such a circumstance, the counsel of record will, consistent
with existing Agency guidance and procedures, work with the offices responsible for handling
these federal facility review matters (currently OECA’s Federal Facilities Enforcement Office
(FFEO), OGC, and the Office of the Administrator).
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13
preferences to DOJ. Any internal EPA disagreements or disagreements with DOJ are to be
elevated to enforcement managers and OGC for resolution in a timely manner.
§ 8.3 Reasons For Changes : Increa ing court challenges to the EAB’s decisions, frequent changes
in the evolution of environmental law and policy, and the importance of judicial precedent all
require that the enforcement program maintain an active role in administrative cases that become
subject to judicial review. We cannot assume that the federal government’s defensive litigation
positions automatically should mirror complainant’s positions in the administrative litigation and/or
the EAB’s precise rationale. In addition to the government’s burden differing in administrative
litigation versus on judicial review, we have found that the case law in a particular judicial district
or circuit, important changes in the law, revised thinking as to the appropriate litigation strategy,
input from DOJ, and other considerations, sometimes can justify making significant revisions to
our previous legal arguments. Keeping the enforcement program actively involved in that process
will help to ensure that national enforcement implications and priorities are fully considered and
reflected.
§ 9.0 HEADQUARTERS ASSISTANCE TO THE EAR
§ 9.1 Previous Procedures : The 1993 coordination memorandum states that, subject to the
prohibition on & pane communications, nothing in that guidance is intended to derogate the ability
of OGC or the Headquarters enforcement office from providing “technical assistance to the EAR
when the EAB deems it appropriate.” The 1993 memorandum further stated that such
Headquarters offices “should assure that any relevant policies or new regulations are brought to the
attention of the Board, since Headquarters offices will often be more aware of such matters than
Regional offices.”
§ 9.2 Revised Procedures : We affmn these same principles, while adding the following points.
We note that OGC and the EAB fonnalized these principles with respect to issues of general
applicability in a memorandum entitled, Review of Issues That May Affect the Environmental
Appeals Board, from Scott C. Fulton, then the Principal Deputy General Counsel, to Kathie A.
Stein, Environmental Appeals Judge (November 6, 1996). We anticipate that in the very near term
we will extend that agreement to include communication between the Headquarters enforcement
office and the EAB concerning enforcement issues of general applicability, and that such an
agreement will continue to emphasize the particular sensitivity of regulatory, policy, or legislative
issues concerning the EAB’s jurisdiction, workload, or procedural operations.
§ 9.3 Reasons For Changes : The primary purpose of these changes is to encourage the free flow
of significant enforcement-related proposed and final policies, rules, or legislation, while at the
same time retaining any existing prohibition on ex pane communications and the independent
nature of the EAB. By sharing appropriate infonnation, we can help to avoid any potentially
adverse implications for the overall management of the enforcement program or for operations of
the EAB.
CONTACTS
Please contact Gary Jonesi at 202-564-4002 if you have any questions on these new
procedures.
cc: ORE Division Directors
Sylvia Lowrance, OECA
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14
Mike Walker, OECA
Helene Ambrosino, OECA
Mike Stahl, OECA
Craig Hooks, OECA/FFEO
Andrew Cherry, OECA/FFEO
Barry Breen, OECA/OSRE
Jonathan Cole, OECA/OCEFT
Michael Penders, OECA/OCEFT
Diana Love, OECA/OCEFT/NEIC
Jim Nelson, OGC/CCILO
Barbara Pace, OGC/CCILO
Joel Gross, DOJ/ENRD/EES
Bruce Gelber, DOJIENRD/EES
Walker Smith, DOJ/ENRDIEES
Letty Grishaw, DOJ/ENRD/EDS
Mary Beth Ward, DOJIENRD/EDS
David Janik, Region Vifi
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April 2002
ALTERNATIVE DISPUTE RESOLUTION
LAW OFFICE
CONFLICT PREVENTION & RESOLUTION
CENTER
Our purpose is to promote constant improvement
in the EPA workplace and in the quality and implementation
of environmental decisions.
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The US Congress has enacted two laws that mandate the use of ADR
in the government: one regulating the Judicial Branch, the other the
Executive Branch. Those laws have been implemented through the
adoption of rule and policies.
This is a brief introduction to those laws and the Federal Court Rules
of Procedure that derive from one of them and the EPA policy and the
practices of the EPA Administrative Law Judges that derive from the other.
The 1998 Act requires each district court to authorize, by local rule,
the use of ADR processes in all civil actions. ADR processes include:
• Any process or procedure other than an adjudication by a presiding
judge
• Where a neutral 3 td party assists in the resolution of issues in
controversy, such as: 1) Early neutral evaluation; 2) mediation; 3)
mini-trial; 4) arbitration
• Those who may serve as neutrals include: 1) Magistrate judges
trained in ADR processes; 2) Professional neutrals from the private
sector; 3) Persons who have been trained to serve as neutrals in ADR
processes
Each Local District of each of the US District Courts has adopted
procedural rules implementing the requirements of the act
To familiarize EPA attorneys with the various requirements and how
they can use them to improve their litigation of cases in federal court, the
Center makes training available to EPA trial attorneys called “ADR in the
Federal Courts,” a primer to help government lawyers select and benefit
from existing court programs and identify alternatives outside the court
system
The 1996 Act authorizes government agencies’ use of ADR and also
provides guidelines to help agencies determine when it is and when it is not
appropriate for a government agency to use ADR. For example, it is not
appropriate to use ADR:
• In precedent setting cases
• In cases that will affect policy development
• Where non-parties will be significantly effected
• In cases of fraud
• Where injunctive relief is required
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The 1996 Act also specifically provides for the voluntary use of
binding arbitration once an agency has adopted guidelines, discusses what
level of confidentiality is available to participants, and provides guidance on
qualifications of neutrals. Neutrals can be: 1) an employee of the federal
government; 2) any individual acceptable to the parties; 3) who does not
have a financial or personal conflict of interest regarding matters in
controversy.
EPA’s Policy on Alternative Dispute Resolution, adopted pursuant to
the 1996 Act, is intended to promote faster, more creative and satisfying
resolution, reduced transaction costs, a culture of respect and trust, better
working conditions, better environmental outcomes, and an understanding
of ADR techniques. The policy encourages the use of ADR in lawsuits,
rulemaking, policy development, permit issuance, and protests of contract
awards.
The policy identifies as important issues: confidentiality, accessability
(website), training, mentoring, evaluation of EPA ADR programs.
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Save Our Summers v. Washington State Department of Ecology
Location. Washington State
Type of Case: State agency authorized in-field burning of wheat stubble
Americans with Disabilities Act (ADA), Clean Air Act
Parties: Save Our Summers (SOS), a citizens’ advocacy group, in existence for about 5
years before filing the lawsuit, whose goal was to have clear skies over
Washington State by limiting annual agricultural burning
8 individual plaintiffs (5 were minors) suffering from respiratory disorders
Washington State Department of Ecology (Ecology)
Issues: Farmers burn the stubble from their harvested crops pursuant to an agreement with
Ecology; the burning occurs each summer and creates haze and particulate matter,
Ecology is the department responsible for issuing permits to farmers allowing the
burning; eight citizens with respiratory disabilities, joined by a citizens’
organization SOS, sued Ecology under the ADA alleging that the permitting was
in contravention of the requirements of the statute.
A mediation while the original court case was pending was nearly consummated,
but the Wheat Grower’s Association, an organization not a party to the lawsuit but
whose members would be greatly impacted by the proffered agreement, convinced
the head of Ecology it was counter to a memorandum of understanding between
Ecology and the Wheat Growers. The director of Ecology determined this may be
true and that the proffered agreement was not a complete solution to the entire
problem, so he declined to adopt it.
The trial court ruled that it did not have jurisdiction and dismissed; the plaintiffs
appealed, while the appeal was pending, a second mediation occurred; this
mediation resulted the agreement described below.
Type of ADR: Mediation, with a court appointed mediator
Outcome: Agreement applies only to cereal grain burning; Ecology will hold an annual winter
meeting with SOS to assess progress of implementation and suggest changes;
annually, Ecology will collect data and assess the program and public health
outcomes; Ecology will consider BMPs in making permit decisions; Ecology will
conduct a health assessment beginning in the spring of 2002; a panel of health and
meteorological experts will recommend scope and process for the health
assessment and review and comment on study results; Ecology will consider
preliminary panel input beginning mid-2002 to implement its best professional
judgment type metering system, which will be operated with the goal of minimizing
adverse health and environmental effects; the panel will make recommendations for
program improvements before fall 2002; rulemaking will begin in 2004 and be
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completed no later than faIl 2006; Ecology will make a lump sum payment of
$55,000; future ADA claims are precluded and pie-rule adoption APA claims are
precluded
Lessons learned: Those involved attribute the success of the second mediation to several
factors, including the personal participation of the head of Ecology. This increased
the trust that SOS had in the work of Ecology and its claims that human health
considerations were important and were considered during rulemakings and permit
issuances. It was helpful to have the lower court’s decision, but neither side was
completely confident of victory on appeal. Parties agreed that the work
accomplished during the many mediation sessions at the trial court level laid
important ground work for the success of the mediation while the case was on
appeal.
Neutral: Court appointed mediator
Dates. Final mediation begun in summer 2001 and agreement reached in November 2001
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EPA REGION FEbERAL COURT RULE
REGION I
b. Connecticut
LRCivP 36
b. Maine
Rule 16.3 a.
b. Massachusetts
Rule 16.4
b. New Hampshire
Civ R 53.1
b. Vermont
LR 16.3
REGION II
b. New Jersey
L.Civ.R. 201.1-301.1
W.b. New York
LRCi P 16.2
N. b. New York
Rules 83.7. .8, .11. .12
S. b. New York
LC R 83.10 - .12
REGION III
b. bistrict of Columbia
LcvR Appendices A-b
b. Maryland
Rule 607
E. 0. Pennsylvania
Rule 53.2
M. b. Pennsylvania
Rule 16.7 - 16.8
W. b. Pennsylvania
LR 16.3
W.D. Virginia
* Section 3
REGION IV
N. b. Alabama
Rule 16.1 (c)
M. 0. Alabama
LR 16.2
S. b. Alabama
LR 16.6
N. b. Florida
Rule 16.3
M. 0. Florida
Rule 8.01 etseq.
S. b. Florida
Rule 16.2
N. 0. Georgia
LR 16.7
M. 0. Georgia
LR 16.2
b. Kentucky
LR 16.2
N. b. Mississippi
Rule 16.1
5. b. Mississippi
Rule 16.1
E. b. North Carolina
AbR Rules 30 etseq.
M. b. North Carolina
LR 83.10 a - 83. lOe
W. b. North Carolina
LR 16.2 & 16.3
b. South Carolina
Civil Rule 16.05 - 16.11
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EPA REGION FEDERAL COURT RULE
E.b. Tennessee
LR 16.3 - .5
M. b. Tennessee
Rules 20 - 27, App. 1-5
W. b. Tennessee
LR 16.1 Cc) & (e)
N. b. Illinois
C. b. Illinois
5. 0. Illinois
N. 0. Indiana
V
S. b. Indiana
E. 0. Michigan
W. b. Michigan
b. Minnesota
N. b. Ohio
W. b. Wisconsin
LR Rule 16.3
Rule 16.4
Rule 16.4
LR 16.6
LR 53.2
LR 16.3
LCivR 16.2 - .6
LR 16.5
Civ. R. 16.4 - .7
Rule 5
E. b. Louisiana
LR 16.3.1E
M. 0. Louisiana
LR 16.3.1E
W. b. Louisiana
LR 16.3.1E
N. b. Oklahoma
LR 16.3
W. b. Oklahoma
LCvR 16.3
N. b. Texas
* Appendix III
E. b. Texas
Rule CV 16 (c)
W. b. Texas
Rule CV 88
S. b. Texas
LR 16.4
b. Iowa
VII
0. Kansas
b. Nebraska
LR 16.3
Rule 16.3
NELR 53.2; Civ. R. 16.3
b. Colorado
0. North bakota
0. Utah
LR 53.2
Rule 16.2
Rule 212
2
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EPA REGION FEbERAL COURT RULE
b. Wyoming
Rule 16.3 (a) & (b)
REGION IX
b. Arizona
Rule 2.11
N. b. California
LR AbR 1, etseq.
E. 0. California
Civ. R. 16-271 (a)
5. b. California
Civ. R. 16.1 (c) & (e)
b. Nevada
R. 16-5
REGION X
0. Alaska
Rule 16.2
0. Oregon
LR 16.4
E. b. Washington
LR 16.2. et seq.
W. b. Washington
CR 39.1
N. b. West Virginia
LRCivP5.O1-.02
5. b. West Virginia
Rule 5.01
* Civil Justice Expense and belay Reduction Plan
3
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AGENDA
OGC National Counseling Attorneys Conference
April 23-25, 2002
I S ! t .
Moderator: Craig Annear
9:00 - 10:00 REGISTRATION; MEET AND GREET
10:00 - 10:10 Preliminary Announcements Craig Annear
10:10 - 10:30 Welcome and Introduction Bob Fabricant (OGC), Nancy
Marvel (Region IX, Lead Region)
10:30 - 12:00 TOPIC 1. Interaction with Agency Lisa Friedman (SWERLO), Gail
Clients: Living Together Ginsberg (Region 5), Walter
Mugdan (2), Marcia Mulkey
(OPPT), and David Ullrich (5)
FORMAT: Point-Counterpoint
- ldentij5 sing who our client is and what the client wants
- Establishing an attorney-client relationship
- Helping the client to bring legal questions to you
- What to do when the client’s strong policy interests conflict with legal requirements
- What to do when you and the client are having trouble communicating
- Establishing proper roles and responsibilities for ORC/OGC and the client on
particular matters
- Whether and when to give policy advice
12:00 - 1:15 Lunch (on your own)
1:15 - 1:30 SKIT: A Day in the Life of a Counseling Brian Grant (SWERLO)
Attorney [ Back by Popular Demand]
TOPIC 2. Non-Binding Guidance vs. John Hannon (ARLO), Barbara
Legislative Rule Pace (CCILO), and Tim
Williamson (I)
1:30 - 3:00 Part A. Advising Clients on Legal Risks
of Issuing Guidance
FORMAT: Lecture/slides, case studies
- Types of agency statements: interpretations, policy statements, procedural rules,
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NCAC Agenda -- Page 2
substantive rules
- What is “guidance”?
- 4 j HQ or Regional document containing interpretations or policy statements
can be subject to challenge as an illegally issued rule: HQ and Regional so-
called “guidance documents, “but also preambles, memos to Regions, letters to
States or individuals, staff manuals, application instructions, enforcement
policies, applicability determinations, adjudications, interagency MOAs, etc.
- What is a binding substantive 2
- Notice and comment rulemaking process
- What is the d /Jerence between rules and adjudications?
- When is “guidance” considered a substantive rule requiring notice and comment
rulemaking?
- Notice and comment: Paraiwed Veterans and advising clients on the potential risks
of reinterpreting the regulations
- Challenges to guidance at the time it is issued: how to advise clients who want to
write guidance that accomplishes their goal but is not reviewable until it is applied.
- Public access to EPA guidance through AiD project; AiD/C CF process; Attorneys’
role in making non-binding guidance determination; effect on consistency
3:00-3:15 Break
3:15 - 3:45 Part B. Advising Clients on Legal Risks
of Implementing Guidance
FORMAT: Lecture/slides, case studies
- Role of implementation in determining whether a document is considered non-
binding guidance
- Legal risks posed by use ofpenalty policies; how to apply them flexibly
- Timing of implementation in the context of enforcement, permitting and other
actions: assuring affected parties have received ‘fair notice” of agency positions
3:45 - 5:15 TOPIC 3. Spotting Cross-Cutting Issues Jim Havard (CCILO), Tod Siegal
(CCILO), Gaylene Vasaturo (5),
and Alan WaIts (5)
FORMAT Hypothetical case study - Cross-cutting issues to be covered:
-El
-ESA
- FACA (e.g. input from stakeholder groups; meetings with permittees)
- NEPA
- NHPA
- PRA (e.g. requests for compliance information; 3d party requests/disclosures)
5:15 - 5:30 WRAP-UP for Day 1 and preparation for Day 2
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NCAC Agenda -- Page 3
Moderator: Meg Silver
8:30 - 10:30 TOPIC 4. Development and Marilyn Kuray (CCILO), Mark
Management of Administrative Records Stein (1), and Carrie Wehling
for Rules, Informal Adjudications, and (WLO)
Non-Binding Guidance
FORMAT: Lecture/discussion and case study
- What is an administrative record, and when is review on the record available?
- General standard for administrative record for rulemaking
- Special provisions (CM, TSCA)
- Responding to comments, record support
-Record for statutes, E.O.s, and policies that accompany rulemaking
- Administrative records in the non-rulemaking context
- Informal adjudications (e.g., state/fri bal program approvals, permits and
TM7 L )
- Non-binding policy and interpretive guidance
- What is the record when the agency is challenged for failing to make a decision?
(e.g., challenges for failure to follow NEPA or ESA;failure to issue TMDLs)
- What if the record changes during litigation?
- inclusion ofprivileged/deliberative materials into the record; DOJ and EPA views
- inclusion of CBI in the record
- Logistics of assembling the record on appeal
- Dockets
- Relationship between public docket and administrative record
- Procedures for docketing
- Including 0MB and other inter-agency materials in docket and record
- Results of workgroup on regional docketing practices
10:30 - 10:45 Break
10:45 - 11:45 TOPIC 5. Information Exchange Craig Annear (CCILO) and Nancy
(Electronic and Otherwise) in the Marvel (9)
National Law Office
FORMAT: “Top Ten List”
- “Top Ten List” of tool that effectively promote good communication, efficient
collaboration, and legal consistency among the ORCs and OGC, including
explanations of best practices and recognition of successful practitioners, based on
survey of OGC and the ORCs
- Possible candidates: organizing and running monthly subject matter conference
calls; using Lotus Notes Scheduler; expanding use of Lotus Notes Sametime;
interoffice details and reassignments; OGC intranet Web site and Regional sites;
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NCAC Agenda -- Page 4
identification and use of OGC and ORC experts; the OGC E-Library; CLE courses
and brown bags; RC-OGC monthly conference calls; OGC Biweekly Reports;
reports of OGC ‘s weekly staff meetings; Regional Counsels’ Weekly Activity
Reports; and others
11:45 - 1:00 Lunch (on your own)
1:00 - 2:00 TOPIC 6. Judicial Deference Randy Hill (WLO)
FORMAT: Lecture and Discussion (Forced March)
- The array of deference standards: deference to agency interpretations of statutes;
deference to agency interpretations of its own regulations; deference to agency
policy/scientific/technical determinations -
- Chevron, Christensen and Mead and the importance of the format in which the
interpretation is issued (rulemaking, adjudication, guidance document)
- Experiences in the circuits
2:00 - 3:00 TOPIC 7. Consultation with Tribes Rich McAllister (10) and Tod
Siegal (CCILO)
FORMAT: Lecture/discussion and case study
- Sources of law on EPA ‘s obligation to consult
- Case law and statutes
- Executive Order 13175 and EPA’s Indian Policy
- Spotting issues and identifying activities that have tribal implications
- EPA administrative actions
- CWA actions. 303(d) lists, TMDLs, state water quality standards
- Permits - e.g., NPDES, Title V
- CERCLA - site assessment, NPL listing, and response actions
- TAS eligibility determinations
- inter-governmental agreements for program implementation
- Enforcement actions - administrative and judicial
- Potential issues: coordinating inspections and contemplated enforcement
applicability of tribal laws and penalties,; deferring to a tribal action; joining
with tribe in an enforcement action
- Coordination between ORC, OGC, the media programs, and the Tribal programs
- Who consults and how
3:00 - 3:15 SKIT: The Wizardry of FOIA The Practice Group Players
3:15 - 3:30 WRAP-UP for Day 2 and preparation for Day 3
3:30 Invitation to Open House at Ariel Rios Anna Wolgast
Building, hosted by OGC
3:45 - 5:00 Open House at Arid Rios, Rachel L. Carson Great Hall (Third Floor)
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NCAC Agenda -- Page 5
Moderator: Andrea Medici
8:30 - 10:00 TOPIC 8. “You Can Pay [ Attention to] Pat Hirsch (FOLO), Steven
Me Now, or Pay Me Later”: Information Moores (8), and Renee Sarajian
Law at EPA (3),,
FORMAT: War Stories and Discussion
- Ashcroft memo and its effect on the use of Exemptions 2, 5, and 7
- Security of environmental information in light of terrorism threats: reducing
information available on EPA ‘ S websile; new role for Exemption 2; tension with
right-to-know requirements
- Protecting deliberative materials: comparing and con trasting the standards and
procedures in response to FOJA requests, litigation discovety, and Congressional
requests
- Information sharing with states and tribes: lessons from Kiamath and Q
- Touhy regs practice
- Record retention, FOJA, and E-records: e-mazls (what to put in, what to leave out);
E-FOIA (e-file production, e-reading rooms, record retention schedules for e-files);
record maintenance and identification, especially when Agency officials leave EPA
-Confidentiality issues: Protecting CBI and Privacy Act documents; CBJ
determinations; agreements with PRPs; personal information necessary for
CERCLA determinations
10:00 - 10:30 Break
10:30 - 11:30 TOPIC 9. When State and Federal Law Mary Beth Gleaves (SWERLO),
Are Out of Synch Gary Jonesi (OECA), and Rett
Nelson (5)
FOP.MAT: TBD
- If1. .Q implements and enforces in authorized and approved states?
- Status of challenges to the federal role in light of Harmon Industries and its
progeny (including the reverse-Harmon bar on state enforcement in Smithfield )
- Minimizing potential res iudicata and other problems (e.g., inadvertently
delegating away all federal authority) in state-federal agreements (MOUs,
PPAs, CEAs, etc.) And authorization packages through use of optimal language
- What are the applicable federal requirements, enforcement authorities, and
sanctions in authorized or approved states?
- Elias and the distinction between: (1) what federal requirements must be met
by regulated entities ; and (2) what federal enforcement authorities and sanctions
must be used, and cited in complaints or indictments, by the federal Wvernment
- Using the state authorization program review process, including approvals and
revisions, to ensure clarity in defining the applicable federal and state
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NCAC Agenda -- Page 6
provisions (including the impact of state interpretations or letters, adverse state
court rulings on adequacy of state program)
- When sign fl cant problems are alleged in state program adequacy - petitions for
withdrawal
- Withdrawal/revocation Authorities
- The Ohio review experience, including process used to investigate the petition’s
claims
- Practice tips to solve problems encountered during the Ohio review
11:30 - 11:35 SPECIAL VOCAL PERFORMANCE: “In Sync”* (AKA “Gary & the
“Dual Sovereigns” Harmonizers,” “Mary and the
Laboring Oars,” and “Rett and
the Ohio Review”) [ *Invited]
11:35 - 12:45 TOPIC 10. OGC, ORC and DOJ: Rich Ossias (ARLO), Manisha
Working Together Patel (6), Lee Schroer (WLO),
and Ann Williams (1)
FORMAT: 4-person panel - Town Hall style discussion with opportunities for
audience participation
- National consistency in legal advice
- Relationship between ORCs and OGC; organizational structure
- Examples of cases that have raised this issue.
- WSPA case and other consequences of inconsistency.
- Discussion of how can we best prevent different approaches to legal issues in
different Regions.
- Coordination among various legal partners in two spec flc types of cases
- Defensive litigation and the process for ensuring effective, efficient interactions
among DOJ, ORC ‘s and OGC; roles and responsibilities (EFA/DOJMOU);
examples of d /JI cult cases and how resolution was achieved
- Coordination on EAB matters; administrative permit proceedings before the
LAB (1993 Ray Luthvzszewsla memo); judicial appeals of EAB decisions
(including in enforcement cases); new EAB procedures (2000 Steve Herman
memo) -
12:45 - 1:00 Final Comments, Lessons Learned, ThA
Follow-up Activities, and Closing
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Other Recommendations
(All within a 5 - 10 minute CAB RIDE from the hotel)
1789 Restaurant 1226 36th Street, NW 0 965-1789 American
Clyde’s 3236 M Street, NW 0 333-9180 American $$
D.C. Coast 1401 K Street, NW 0 216-5988 American
Equinox 818 Connecticut Avenue, NW D 331-8118 American
Felix 2406 18th Street, NW A 483-3549 American $$
J. Paul’s 3218 M Street, NW G 333-3450 American $$
Nathan’s 3150 M Street, NW 0 338-2000 American $$
Old Ebbftt Grill 675 15th Street, NW D 347-4801 American
Oval Room 800 Connecticut Avenue, NW 0 463-8700 American
Tahoga 2815 M Street, NW G 338-5380 American _______
Bistro Francais 3128 M Street, NW 0 338-3830 French $$
Saveur 2218 WisconsIn Avenue, NW G 333-5885 French $$
Bombay Club 815 Connecticut Avenue, NW D 659-3727 Indian $$
Bombay Palace 2020 K Street, NW D 331-4200 Indian $$
Heritage India 2400 WisconsIn Avenue, NW G 333-3120 IndIan _______
Famous Luigi’s 1132 19th Street 1 NW 0 331-7574 Italian $$
Filomena Ristorante 1063 Wisconsin Avenue, NW 0 337-2782 Italian
Galileo 1110 21st Street, NW D 293-7191 Italian
Goldoni 1120 20th Street, NW D 293-1511 Italian
I MaUI 2436 18th Street, NW A 462-8844 ItalIan $$
I RicchI 1220 19th Street, NW D 835-0459 Italian $$-$$$
Paolo’s 1303 Wisconsin Avenue, NW G 333-7353 Italian $$
Japan Inn 1715 Wisconsin Avenue, NW G 337-3400 Japanese
Sushi Ko 2307 Wisconsin Avenue, NW 0 333-4187 Japanese $$
Kinkead’s 2000 PennsylvanIa Avenue, N D 296-7700 Seafood
Legal Seafood 2020 K Street, NW 0 496-1111 Seafood $$
Sea Catch 1054 31st Street, NW G 337-8855 Seafood $$
Tony & Joe’s 3000 K Street, NW G 944-4545 Seafood
Georgia Brown’s 950 15th Street, NW D 393-4499 Southern
Vidalia I 99b M Street, NW D 659-1990 Southern $$
Cities 2424 18th Street, NW A 328-7194 Spanish
Tabema del Alabardero 1776 I Street, NW 0 429-2200 Spanish _______
Blackies House of Beef 1217 22nd Street, NW 0 333-1100 Steaks
Morton’s of Chicago 1050 ConnectIcut Avenue, NW D 955-5997 Steaks
Prime Rib 2020 K Street, NW D 466-8811 Steaks
Smith & Wollensky 1112 19th Street, NW D 466-1100 Steaks _______
Busara 2340 Wisconsin Avenue, NW 0 337-2340 Thai
$ = $4.95 - $12.00 $$ = $12.00 - $19.00 $$$ = $19.00- $29.00
Location Codes: A = Adam’s Morgan D = Downtown 0 Georgetown
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Dupont CircJe Restaurant Recommendations
(All within a 2 - 10 minute WALK from the hotel)
Brickske ller 1523 22nd Street, NW 293-1885 American $
Childe Harold 1610 20th Street, NW 483-6700 American $$
Jockey Club 2100 Massachusetts Aye, NW 659-8000 American
Kramerbooks & Afterwords 1517 Connecticut Aye, NW 387-1462 American $
Restaurant Nora 2132 Florida Avenue, NW 462-5143 American
Tabard Inn 1739 N Street, NW 331-8529 American $$
Raku 1900 Q Street, NW 265-7258 Asian $
City Lights of China 1731 Connecticut Aye, NW 265-6688 Chinese $$
Zorba’s Café 1612 20th Street, NW 387-8555 Greek $
Polo India Club 1736 Connecticut Aye, NW 483-8705 Indian $$
Al Tiramisu 2014 P Street, NW 467-4466 Italian $$
Anna Maria’s 1737 Connecticut Aye, NW 667-1444 Italian $$
Buca di Beppo 1825 Connecticut Aye, NW 232-8466 Italian $$
La Tomate 1701 Connecticut Aye, NW 667-5505 Italian $$
Obelisk 2029 P Street, NW 872-1180 Italian $$$
Odeon Café 1714 Connecticut Aye, NW 328-6228 Italian $$
Pizza Paradiso 2029 P Street, NW 223-1245 Italian $-$$
Sushi Taro 1503 17th Street, NW 462-8999 Japanese $$-$$$
Gabriel 2121 P Street, NW 956-6690 Latin/Spanish $$$
BeDuCi 2100 P Street, NW 223-3824 Mediterranean $$
DC Café (24 hour) 2035 P Street, NW 887-5819 Mediterranean $
Lauriol Plaza 1835 18th Street, NW 387-0035 Mexican $$
Johnny’s Half Shell 2002 P Street, NW 296-2021 Seafood $$
Pesce 2016 P Street, NW 466-3474 Seafood $$
Ruth’s Chris Steak House 1801 Connecticut Aye, NW 797-0033 Steaks ______
Sala Thai 2016 P Street, NW 872-1144 Thai $
$ = $4.95 - $12.00 $$ = $12.00 - $19.00 $$$ = $19.00 - $29.00
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EVALUATIONS
OGC National Counseling Attorneys Conference
Radisson Barcelo, Washington, DC
April 23-25, 2002
Please rate the presentations from 1 to 5 (5 being the best)
ITuesday, April 231
TOPIC 1: Interaction with Agency Clients: Living Together
Lisa Friedman
Content (1-5) ___________________ Presentation (1-5).
Comments
Gail Ginsberg
Content (1-5) _____________________ Presentation (1-5).
Comments
Walter Mugdan
Content (1-5) ____________________ Presentation (1-5)
Comments
I
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TOPIC 1: Interaction with Agency Clients: Living Together (continued)
Marcia Mulkey
Content (1-5) ____________________ Presentation (1-5)
Comments
David Ulirich
Content (1-5) ____________________ Presentation (1-5)
Comments
TOPIC 2: Non-Binding Guidance vs. Legislative Rule
John Ilannon
Content (1-5) ___________________ Presentation (1-5)
Written Materials (1-5)
Comments
Barbara Pace
Content (1-5) ____________________ Presentation (1-5)
Written Materials (1-5) ________
Comments
2
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TOPIC 2: Non-Binding Guidance vs. Legislative Rule (continued)
Tim Williamson
Content (1-5) ____________________ Presentation (1-5)
Written Materials (1-5) _________________
Comments
TOPIC 3: Spotting Cross-Cutting Issues
Jim ilavard
Content (1-5) ____________________ Presentation (1-5)
Comments
Tod Siegal
Content (1-5) ___________________ Presentation (1-5)
Comments
Gaylene Vasaturo
Content (1-5) ____________________ Presentation (1-5)
Comments
3
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TOPIC 3: Spottiiig Cross-Cutting Issues (continued)
Alan Waits
Content (1-5) ____________________ Presentation (1-5)
Comments
Topic 3 - Written Materials (1-5) _________________
I Wednesday
Topic 4: Development and Management of Administrative Records for Rules, Informal
Adjudications, and Non-Binding Guidance
Marilyn Kuray
Content (1-5) ____________________ Presentation (1-5).
Comments
Mark Stein
Content (1-5) ___________________ Presentation (1-5)
Comments
Carrie Wehling
Content (1-5) ____________________ Presentation (1-5)
Comments
4
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Topic 4: Development and Management of Administrative Records for Rules, Informal
Adjudications, and Non-Binding Guidance (continued)
Topic 4 - Written Materials (1-5)
Topic 5: Information Exchange (Electronic and Otherwise) in the National Law Office
Craig Annear
Content (1-5) _____________________ Presentation (1-5)
Comments
Nancy Marvel
Content (1-5) _____________________ Presentation (1-5)
Comments
Topic 6: Judicial Deference
Randy Hill
Content (1-5) _____________________ Presentation (1-5)
Comments
Topic 6 - Written Materials (1-5) _____
5
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Topic 7: Consultation with Tribes
Rich McAllister
Content (1-5) ___________________ Presentation (1-5)
Comments
Tod Siegal
Content (1-5) ____________________ Presentation (1-5)
Comments
Written Materials (1-5)
IT1n day,Ainit 251
Topic 8: “You Can Pay [ Attention to] Me Now, or Pay Me Later”: Information Law at EPA
Pat Hirsch
Content (1-5) ____________________ Presentation (1-5)
Comments
Steven Moores
Content (1-5) ____________________ Presentation (1-5)
Comments
6
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Topic 8: “You Can Pay [ Attention to] Me Now, or Pay Me Later”: Information Law at EPA
(continued)
Renee Sarajian
Content (1-5) ____________________ Presentation (1-5) _________________
Comments
Topic 8 - Written Materials (1-5) _________________
Topic 9: When State and Federal Law Are Out of Synch
Mary Beth Gleaves
Content (1-5) ____________________ Presentation (1-5)
Written Materials (1-5)
Comments
Gary Jonesi
Content (1-5) _____________________ Presentation (1-5)
Written Materials (1-5) ________________
Comments
Rett Nelson
Content (1-5) _____________________ Presentation (1-5).
Written Materials (1-5) _________
Comments
7
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Topic 10: OGC, ORC and DOJ: Working Together
Rich Ossias
Content (1-5) ____________________ Presentation (1-5)
Comments
Manisha Pate!
Content (1-5) ____________________ Presentation (1-5)
Comments
Lee Schroer
Content (1-5) ___________________ Presentation (1-5)
Comments
Ann Williams
Content (1-5) ____________________ Presentation (1-5)
Comments
Topic 10 - Written Materials (1-5) ____
8
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IGENERAL QUESTIONS
1. Please indicate your overall reaction to the Conference with respect to quality, useflulness,
and length:
2. Which Topic(s) was of most interest to you?
3. Which Topic(s) was of least interest to you?
4. In what ways could the Conference have been better?
5. How would you rate the quality of the facilities and the logistical arrangements?
6. Additional comments:
9
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