PROCESSING
TESTIMONY REQUESTS
AND SUBPOENAS
UNDER 40 CFR PART 2, SUBPART C
A HANDBOOK FOR EPA REGION 4
ATTORNEYS
MARCH 2010
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
JAN 1 2 1993
OFFCEOF
OQEMLCaUNSEL
MEMORANDUM
SUBJECT: Designation Under 40 C^FTRy Part 2, Subpart C
FROM: Raymond B. Ludwiszevski
Acting General Counsel
Andrew J. Koran
Associate General Counsel
General and Information Law Division
EPA regulations at 40C.F.R. Part 2, Subpart C, generally
state that employees may^ot^prbvide""toatiSony or produce
documents on behalf of EPA (either voluntarily or in response to
subpoenas) -unless authorized by "the General Counsel or his
designee."1 .The purpose, of this memorandum is to appoint the
Associate General Counsel for the General and Information Lav
Division as ay "designee" under 40 C.7.R. 5S2.402(b) through
2.406 to decide requests or subpoenas for testimony or subpoenas
for documents directed to employees in EPA Headquarters and in
laboratories and other organizations which report directly to EPA
Headquarters. Earlier designations are outdated in view of the
recent reorganization of the Office of General Counsel.
As stated in my predecessor's "designation" letter of
August 29, 1985, the Regional Counsels serve as the "designees"
regarding testimony and production of documents by employees in
their Regions and in organizations which report to their Regions.
Assistant Administrators
Associate Administrators
Regional Administrators
Staff Office Directors
Associate General counsels
Regional Counsels
Inspector General
1 The Inspector General makes this determination for
employees in that Office, and individual EPA program offices and-
Regions make this determination when a State or local government
requests EPA testimony.
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V
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
$8* I 8 iggg
OFFICE OF
GChEAalCAjNSEL
HEHQBJWP"H
SUBJECT: Designation Under 40 2, Subpart C
FROM: Raymond B. Ludwiezevski
Acting General Counsel
TO: Ray E. spears V
Acting Associate General Counsel.
Contracts, Information and General Lav Division
TO:
EPA regulations at 40 C.F.R. Part 2, Subpart C, generally
state that employees may not provide testimony or produce
documents on behalf of EPA (either voluntarily or in response to
subpoenas) unless authorized by "the General counsel or his
designee.1*1 The purpose of this memorandum is to appoint the
Associate General Counsel for the Contracts, Information and
General Law Division as my "designee" under 40 C.F*R. 512.402(b)
through 2.406 to decide requests or subpoenas for testimony or
subpoenas for documents directed to employees in EPA Headquarters
and in laboratories and other organizations which report directly
to EPA Headquarters.
By memorandum dated August 29, 19B5, my predecessor
designated the "Associate General Counsel for the Grants,
Contracts and General Law Division1* to make determinations
regarding employees' testimony. This designation is outdated in
view of the recent reorganization of the Office of General
Counsel.
As stated in my predecessor's "designation" letter of August
29, 1985, the Regional Counsels serve as the "designees"
regarding testimony and production of documents by employees in
their Regions and in organizations which report to their Regions.
1 The inspector General makes this determination for
employees in that Office, and individual EPA program offices and
Regions make this determination when a State or local government
requests EPA testimony.
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-7
August 30, 1985
MEMORANDUM
To: Assistant Administrators
Associate Administrators
Regional Administrators
Staff Office Directors
Associate General Counsels
Regional Counsels
Inspector General
FROM: Lee A. DeHihns, III
Associate General Counsel
Srants, Contracts and General Law Division (LE-132G)
SUBJECT: Designations Under New EPA Subpoena Regulations
The General Counsel's memorandum to you dated August 16,
1985,transmitted copies of EPA's new subpoena regulations. With
certain exceptions, these regulations state that EPA employees
may not provide testimony, either voluntarily or in response to
subpoenas, in court cases where EPA is not a party or in state
and local legislative and administrative proceedings unless the
General Counsel or his designee has approved. (The Inspector
General or his designee makes this determination for employees in
the Office of Inspector General.)
The General Counsel has designated me to make determinations
regarding testimony (or production of documents in response to
subpoenas) by employees in EPA Headquarters organizations and in
organizations which report to Headquarters Offices.
The Regional Counsels are designated to make determinations
regarding testimony (and production of documents in response to
subpoenas) by employees in their Regional Offices and in organi-
zations which report to Regional Offices.
A copy of the General Counsel's designation memorandum is
attached.
Attachment
Nantkes, dn, 8/30/85, GLC 16, Disk 3
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i
August 29, 1985
MEMORANDUM
TO:
Associate General Counsel
Grants, Contracts and General Law Division
All Regional Counsels
FROM: Francis S. Blake /s/
General Counsel
SUBJECT: Designation Under 40 C.F.R. Part 2, Subpart C
The purpose of this memorandum is to appoint you as my
"designees" to authorize employees to provide testimony or pro-
duce documents.
Section 2.402(b) of new Subpart C to 40 C.F.R. Part 2, Tes-
timony by Employees and Production of Documents * * *, published
August 9, 1985, at 50 Fed. Reg. 32386, provides that EPA employ-
ees generally may not provide testimony or produce documents (ei-
ther voluntarily or in response to subpoenas) "unless authorized
by the General Counsel or his designee." (The Inspector General
makes this determination for employees in his Office.)
Accordingly, the Regional Counsels are hereby designated to
make all determinations delegated to the General Counsel under 40
C.F.R. Part 2, Subpart C, concerning testimony or production of
documents by employees in their Regions (including all organiza-
tional units which report to the Regional Administrator).
The Associate General Counsel for the Grants, Contracts and
General Law Division is designated to make all determinations
delegated to the General Counsel under 40 C.F.R. Part 2, Subpart
C, concerning testimony or production of documents by all other
EPA employees(including employees of laboratories and other or-
ganizational units which report to EPA Headquarters Offices).
Nantkes, dn, 8/28/85, GLC 16, Disk 3
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Processing Testimony Requests and Subpoenas Under 40 CFR Part 2, Subpart C
Table of Contents
1. Handbook for EPA Region 4 Attorneys
2. Most Recent - Use as Model documents
3. Attachment 1- Letter to John E. Hennelly, Esq.
4. Attachment 2- Memorandum for Request for EPA Testimony
5. Attachment 3- Memorandum for Request for Testimony Under 40 C.F.R. § 2.403
6. Attachment 4- Letter to Ewell E. Eagan, Jr., Esq.
7. Attachment 5-.Content of federal court subpoena
8. Attachment 6- Letter to Mr. Mark Marion Akins
9. Attachment 7- Authentication
10. Appendix L- An Overview of Defensive Subpoena Practice From a Government Perspective
11. Section 1 - Letter to Mr. F. Edwin Hallman, Jr., dated June 5,2009
12. Section 2 - Letter to Ms. Sandra Kaczmarczyk, dated August 19,2008
13. Section 3 - Letter to Betsy L. Child, dated November 19,2004
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PROCESSING
TESTIMONY REQUESTS AND SUBPOENAS
UNDER 40 CFR PART 2, SUBPART C
A HANDBOOK FOR EPA REGION 4 ATTORNEYS
2010 Update
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NOTE/DISCLAIMER
THIS HANDBOOK HAS BEEN PREPARED BY THE OFFICE OF LEGAL SUPPORT,
EPA REGION 4. IT IS DESIGNED TO BE A RESOURCE FOR EPA REGION 4
ATTORNEYS WHEN PROCESSING REQUESTS FOR TESTIMONY OR SUBPOENAS
UNDER 40 CFR PART 2, SUBPART C. THE HANDBOOK IS, HOWEVER, ONLY A
GUIDE. TO THE EXTENT THAT REQUESTS FOR TESTIMONY OR SUBPOENAS
CALL FOR OTHER STEPS OR DIFFERENT INFORMATION, ATTORNEYS SHOULD
FEEL FREE TO DEVIATE FROM THE PROCESSES REFLECTED IN THE
HANDBOOK.
THIS HANDBOOK IS ONLY A GUIDE FOR EPA REGION 4 ATTORNEYS. IT
CREATES NO RIGHTS, DUTIES, OBLIGATIONS, OR DEFENSES, IMPLIED OR
OTHERWISE, IN ANY THIRD PARTIES.
CONTACT: VERA KORNYLAK, 404-562-9589.
Last Update: March 2010
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I. OVERVIEW OF APPLICABLE LAW 6
A. INTRODUCTION TO SUBPART C 6
B. THE PURPOSE, COVERAGE AND SCOPE OF SUBPART C 3
C. SUBPART C'S "IN-THE-INTERESTS" AND "CLEARLY IN THE INTERESTS"
STANDARDS 9
D. STANDARDS OF REVIEW 14
E. EMPLOYEE COMPLIANCE WITH SUBPOENAS 17
F. JUDICIAL REVIEW OF AGENCY DENIAL OF REQUEST FOR TESTIMONY 18
II. PROCESSING REQUESTS FOR TESTIMONIAL AND DOCUMENTARY
EVIDENCE UNDER SUBPART C 20
A. REQUESTS BY FEDERAL AGENCIES, STATE AND LOCAL GOVERNMENTS
FOR TESTIMONY (VOLUNTARY AND SUBPOENA) 20
B. REQUESTS BY PRIVATE LITIGANTS FOR VOLUNTARY TESTIMONY 22
C. RESPONDING TO STATE COURT SUBPOENAS BY PRIVATE LITIGANTS 24
D. RESPONDING TO A FEDERAL COURT SUBPOENA BY A PRIVATE LITIGANT 26
E. EMERGENCY REQUESTS/SUBPOENAS 28
F. AUTHENTICATION OF DOCUMENTS 29
III. CHALLENGES TO AGENCY FINAL ACTIONS/MOTIONS TO COMPEL/FOR
CONTEMPT i 29
A. CHALLENGES TO DENIAL LETTERS 29
B. MOTIONS TO COMPEL/FOR CONTEMPT 30
IV. RECORD-KEEPING 30
3
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ATTACHMENTS
1. SAMPLE REGIONAL ADMINISTRATOR DETERMINATION LETTER FOR
STATE/LOCAL REQUESTS
2. SAMPLE MEMORANDUM TO EMPLOYEE SUPERVISOR REQUESTING
RECOMMENDATION ON REQUEST FOR TESTIMONY
3. SAMPLE MEMORANDUM FROM DIVISION DIRECTOR
4(A-C). SAMPLE REGIONAL COUNSEL DECISION LETTERS FOR VOLUNTARY
REQUEST
5. BRIEF DISCUSSION OF SUBPOENAS
6(A-B). SAMPLE REGIONAL COUNSEL DECISION LETTERS FOR SUBPOENAED
TESTIMONY
7. SAMPLE DOCUMENT AUTHENTICATION FORM
-Appendix L, An Overview, of Defensive Subpoena Practice from a Government
Perspective, Terry M. Henry, Federal Programs Branch - Civil Division, U.S.
Department of Justice, February 2003
-Decision Letters
1. Voluntary requests from private litigants (TAB 1)
2. Subpoenaed testimony from private litigants (TAB 2)
3. State/local requests and subpoenas (TAB 3)
APPENDIX F (LIST OF OTHER READINGS^/f.. ."V VI-6
APPENDIX G (FEDERAL OFFICER REIyfdvAL STATUTE) VI-7
APPENDIX H (MEMORANDUM OKUNDERSTANDING BETWEEN U.S.
DEPARTMENT OF JUSTKfE AND EPA, 1977) VI-8
/ \
APPENDIX I (TOUHY REGULATIONS AND OTHER PROCEDURAL
CONSIDERATIONS IMDEFENDING THIRD-PARTY SUBPOENAS
AGAINST FEDERAL AGENCIES AND EMPLOYEES!. U.S. Dep't of
Justic^ Civil Division
! VI-9
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APPENDIX J (THE IMPACT OF EXXON SHlWlN^/jf^DEP'T OF
INTERIOR) .U VI-10
APPENDIX K (TOUHY: AXDISCUSSION Of4wE)EFFECT OF THE NINTH
CIRCUIT'S DECISION) ...A VI-11
V A/
APPENDIX L (AN OVERVIEW OF DEFENSIVE SUBPOENA PRACTICE FROM A
GOVERNMENT PERSPECTIVE ByTERRY M. HENRY. FEDERAL PROGRAMS
BRANCH, U.S. DEPT. OF JUSTiCE FEEf 2003) VI-12
/, V
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L OVERVIEW OF APPLICABLE LAW
A. INTRODUCTION TO SUBPART C
The United States Environmental Protection Agency's (EPA's or the Agency's) internal
¦"housekeeping" regulations1 govern the provision of testimonial and documentary evidence by
Agency employees in litigation to which EPA is not a party. These regulations, commonly
referred to as Touhy regulations,2 state that no Agency employee may provide testimony
concerning "information which employees have acquired in the course of performing official
duties" without the prior approval of designated Agency personnel. 40 C.F.R. § 2.401 (2009).
This prohibition covers knowledge an employee might have about pending litigation, official
Agency policies, or other facts or information derived from the employee's official capacity at
the Agency.3
40 CFR Part 2, Subpart C (Subpart C) was promulgated under the administrative
authority delegated to EPA, pursuant to the Federal Housekeeping Statute. 5 U.S.C. § 301. This
section empowers agency heads to "prescribe regulations [concerning] the conduct of its
employees, the distribution and performance of its business, and the custody, use, preservation of
its records, papers, and property,"
Subpart G serves-to preserve limited Agency resources andAgency control over those
resources, maintain the impartiality of the Agency in purely private suits, and lessen the
Agency's administrative burden by establishing a standard to process requests and subpoenas for
testimony. It centralizes intra-agency decisions in select Agency personnel, and sets up a
structure that allows parties to discover otherwise available information without adversely
affecting the functioning of the Agency and interfering with the work of EPA personnel.
Subpart C seeks to strike an appropriate balance between competing interests. It weighs a
litigant's legitimate right to conduct discovery and uncover material "reasonably calculated to
lead to the discovery of admissible evidence,"4 against the Agency's strong institutional interest
in maintaining appropriate control over its workforce, fulfilling its statutory obligations, and
1 40 Code of Federal Regulations, Part 2, Subpart C.
3 This refers to the U.S. Supreme Court's decision in United States ex rel. Touky v. Ragert, 340
US 462 (1951). The Court affirmed the validity of the U.S. Department of Justice's internal
housekeeping regulations which withdrew all discretion from departmental employees to release
testimonial or documentary information in a judicial proceeding to which DOJ was not a party.
3 For additional information see Appendix L, An Overview of Defensive Subpoena Practice
from a Government Perspective by Terry M. Henry, Federal Programs Branch - Civil Division,
U.S. Department of Justice (February 2003) (available at the OGC e-library as well).
4 Fed. R. Civ. P. 26(b)(1).
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avoiding entangling its employees in purely private or unrelated litigation.5 Ongoing compliance
and enforcement activities, as well as other Agency business, may be adversely affected by an
Agency employee providing sensitive information gained in the performance of official duties.6
Before Subpart C's promulgation, an informal, ad hoc system governed the provision of
testimony by Agency personnel.7 Under prior guidance, "EPA employees [were] required to
respond to valid subpoenas, thereby preventing them from performing their duties and creating
the appearance that the Agency is taking sides in private litigation."8
Promulgated as a final rule in 1985, Subpart C changed this scheme. It raised the
standard governing consideration of voluntary requests and subpoenas, and now "prohibit|s] both
voluntary appearances and compliance with subpoenas except where clearly in the interests of
the Agency
Subpart C recognizes that subpoenas issued for "information which employees have
acquired in the course of performing official duties" are actions against the United States.
Sovereign immunity bars the enforcement of such subpoenas except by express Congressional
waiver. Because there has been no such waiver, state-court subpoenas may not be enforced
against federal employees.10
Many federal agencies and executive departments have regulations similar to Subpart
C.11 These regulations are valid unless arbitrarily or capriciously applied.12
5 "If [agency] employees were routinely permitted to testify in private suits, significant loss of
manpower hours would predictably result." Reynolds Metals Co. v. Crowther, 572 F. Supp. 288,
290 (D. Mass 1982).
6 See Orange Env't, Inc., v. County of Orange, 145 F.R.D. 320 (S.D.N.Y. 1992); Sharon Lease
011 Co. v. Federal Energy Regulatory Commission, 691 F. Supp. 381 (D.D.C. 1988).
7 See EPA Order No. 1000.7, Policy With Respect To The Presentation of Testimony By EPA
Employees (superseded).
8 50 Fed. Reg. 32,386 (August 9,1985) (supplementary information).
9 Id. at 32,386 (emphasis added).
10 See Block v. North Dakota ex rel. Bd. Of Univ. & School Lands, 461 US 273, 280 (1983).
1' This includes the Departments of Justice, Interior, Commerce, Health and Human Services,
and the Food and Drug Administration. 28 C.F.R. §§ 16.21-16.29 (DOJ); 45 C.F.R. §§ 2.80-2.82
(DOI); 15 C.F.R. §§ 15.1-15a.7 (DOC); 45 C.F.R. §§ 2.1-2.6 (HHS); 7 C.F.R. §§ 1.210-1.219
(USDA). For a more complete listing, see U.S. DEPARTMENT OF JUSTICE, CIVIL
DIVISION, FEDERAL PROGRAMS BRANCH. TOUHY REGULATIONS AND OTHER
PROCEDURAL CONSIDERATIONS IN DEFENDING CONSIDERATIONS IN
DEFENDING THIRD-PARTY SUBPOENAS AGAINST FEDERAL AGENCIES AND
EMPLOYEES. V-6 (1st ed., April 1994).
12 See Moore v. Armour Pharm. Co., 927 F.2d 1194 (11th Cir. 1991). The Agency's application
of Subpart C has been upheld by a number of federal courts. See e.g., Wilson v. Amoco Corp.,
Case No. 96-CV-124B (D. Wyo. 1998); Orange Env't, Inc., v. County of Orange, 145 F.R.D.
320 (S.D. N.Y. 1992); Boron Oil Co. v. Downie, 873 F.2d 67 f4th Cir. 1989).
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B. THE PURPOSE, COVERAGE AND SCOPE OF SUBPART C
The central purposes of Subpart C are to conserve and maintain appropriate control over
finite Agency resources by establishing workable procedures for processing subpoenas and other
requests for testimony, while ensuring that the proper implementation of its statutory
responsibilities remains the focus of the Agency's work. Subpart C sets up two different
schemes. EPA employees must follow the proper procedure to receive authorization to testify.
Requests for testimony made by another Federal agency13 or by a state or local
government are considered by the Regional Administrator (RA). Requests by another Federal
agency are granted with the RA's approval. Requests by state and local governments are granted
if the RA determines that providing testimony "is in the interests of EPA." § 2.402(a).14 If this
minimum standard is met, the request is granted.
Requests for testimony from private party litigants are considered by the General Counsel
or his designee. § 2.402(b). Except with respect to Agency Headquarters personnel, the General
Counsel's authority under § 2.402(b) has been delegated to EPA Regional Counsels.15/16 The
Regional Counsel determines whether providing testimonial or documentary evidence is "clearly
in the interests of EPA." §§ 2.401(c), 2.403 (party makes voluntary request), 2.404(a) (agency
employee subpoenaed). This is a higher standard than that which applies to requests made by
state or local governments?
Subpart C applies to the following proceedings in which the Agency is not a party:
• State court, grand jury and municipal court proceedings. § 2.401(a)( 1).
13 Subpart C procedures do not apply to testimony requests/subpoenas from federal agencies
when the federal agency is in federal Court. See Section 2.401(a)(2). Thus, testimony
requests/subpoenas from federal agencies which are contemplated under Subpart C procedures
can only include non-federal court requests such as where the requesting federal agency is
involved in a state or local administrative or legislative proceeding; where the requesting federal
agency is somehow in state court (unlikely); or where the requesting federal agency is involved
in a federal administrative proceeding (although this is not expressly included or excluded in
Subpart C coverage). In such instances, non-federal court testimony requests/subpoenas by other
federal agencies are handled under Section 2.402 by the RA. In Region 4, these kind of requests
have been rare or non-existent. Again though, testimony requests/subpoenas from federal
agencies in federal court are handled under the Federal Rules of Civil Procedure and not Subpart
C.
14 Although not explicit, Section 2.402(a) also governs subpoenas for testimony from state/local
government agencies. Therefore, determination of compliance with subpoenas from state/local
agencies rests with the RA under Section 2.402(a).
1 See EPA Memorandum, Designation Under 40 C.F.R. Part 2, Subpart C (August 29,1985).
16 For Regional Criminal personnel, EPA Headquarters retains the authority to decide upon
testimony requests and subpoenas.
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• Federal civil proceedings, except where the United States, EPA or another
Federal agency is a party to the litigation. § 2.401(a)(2).
• State and local legislative and administrative proceedings. § 2.401(a)(3).
The following are not regulated by Subpart C:
• Matters which are not related to EPA. § 2.401(b)(1).
• Federal civil proceedings where EPA, the United States, or another Federal
agency is a party. § 2.401(a)(2).
• Congressional requests or subpoenas for testimony or documents. §
2.401(b)(2).
• Where employees provide expert witness services as approved outside
activities, or voluntarily testify as private citizens with respect to
environmental matters and EPA policies and programs. Employees must state
for the record that the testimony represents their own views and not
necessarily the official position of EPA. §§ 2.401(b)(3),(4).
• Requests/subpoenas for testimony of former EPA employees/former
contractors.
C. SUBPART C'S "IN-THE-INTERESTS" AND "CLEARLY IN THE
INTERESTS" STANDARDS
The purpose of EPA regulations on EPA testimony 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 or production of documents when clearly in the interests of
EPA." 40 C.F.R. § 2.401(c). Section 2.402(a) provides that testimony requested by a state or
local government can be provided (with the approval of the Regional Administrator) where "it is
in the interests of EPA." Sections 2.402(b) and 2.403 provide that testimony requested by other
parties can be provided (with the approval of the General Counsel or his designee) where "it is
clearly in the interests of EPA."
The "in the interests of EPA" and "clearly in the interests of EPA" standards derive from the
intent of the Regulations. See 50 Fed. Reg. 32,386 (Preamble to regulations). This intent is
basically twofold:
(1) to ensure that EPA employees' time is spent on EPA business; and
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(2) to avoid the appearance that EPA is taking sides in private litigation.
See 50 Fed. Reg. 32386. Neither the Preamble to the rulemaking nor the Regulations themselves
actually define what is meant by "clearly in the interests of EPA" or "in the interests of EPA;"
however, the Preamble language suggests that defining a matter as "clearly in the interests of
EPA" or "in the interests of EPA," means that the two-fold intent of the regulation is being met
or effectuated.17 Id.
Determining whether "interests" exist such that the two-fold intent of the regulation is
met is necessarily a fact and case-specific inquiry. Some decision-makers make this "interest"
determination by analyzing whether or not the agency's mission would be furthered by providing
the testimony, Comsat Corp. v. National Science Foundation, 190 F.3d. 269 (4th Cir. 1999) (case
involving NSF, rather than EPA), or whether or not the agency needs to defend its reputation
against charges of misconduct or delay, Davis Enterprises v. EPA, 877 F.2d 1181 (3rd Cir.
1989). In either instance, such characterizations of "interest" would appear to effectuate the
intent of the regulations.
In Region 4, we have tied the concept of the use of agency employee time on private
litigation matters to the mission of the agency (i.e., whether the cumulative effect of providing a
witness significantly impedes EPA's mission) and stated that this tie-in is the "basis for bur
'interests of EPA' standard for approving EPA employees' testimony." We have also noted that
providing official time for employees to testify may be perceived as a failure by EPA to maintain
impartiality among private litigants and that this also forms for the basis for our "clear interests
of EPA" standard.
More commonly, however, the characterization of "interests" are tied directly to the
intent of the regulation (no mention of the mission of the agency). That is, the "interests" are
actually defined as (1) ensuring that EPA employees' time is spent on EPA business, and (2)
avoiding the appearance that EPA is taking sides in private litigation.18 This type of
characterization of "interest" is reflected in the cases cited below.
17 Although at least one court has recognized (generally) that there is a distinction between
"interests" and "clearly in the interests," neither that case, Davis Enterprises v. EPA, 877 F.2d
1181, 1187 (3rd Cir. 1989), nor the regulation itself provides guidance on the difference between
the two phrases. It is arguably a difference only in degree, with "clearly in the interest" requiring
a more visible and articulated EPA interest. Given that no "interests"-only cases have been
uncovered, the use of "clearly in the interests" cases should be read as instructive.
18 By defining "interests" in this way, the implication is that no other EPA interest could be
identified that would ensure the effectuation of the intent of the regulations. That is, no other
EPA interest could be identified that would still ensure that an EPA employee's time is spent on
EPA business and avoid the appearance of taking sides in private litigation.
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EPA "Clearly in the Interests" Cases
• Bobreski v. EPA, 284 F. Supp. 2d 67 (D.D.C. 2003). In Bobreski, both the plaintiff and
defendant in a wrongful termination lawsuit to which EPA was not a party requested
testimony from an EPA inspector. Id. at 69-70. Under authority of its Touhy regulations,
EPA refused to allow the inspector to testify, and the plaintiff responded by filing a
separate lawsuit alleging that EPA's refusal constituted a violation of the APA. Id. at 70.
The District Court for the District of Columbia held that EPA's denial was not arbitrary
and capricious because the Agency's action "tracked the express purpose of its Touhy
regulations." Id. at 80. In reaching this conclusion, the court noted that EPA had cited
(1) the need to maintain the Agency's neutrality; (2) the cumulative effect of allowing
employees to testify; (3)lhe proper use of Agency resources; and (4) the fact that the .
inspector had already"provided an affidavit to the parties in the underlying Litigation. Id.
at 79. These factors revealed that allowing the inspector to testify would not be in the
interests of the Agency and that the Agency had already cooperated with the litigants by
providing an affidavit. See Id. Thus, not allowing the inspector to testify was justified
under the Touhy regulations, and was not arbitrary and capricious.
• Davis Enterprises v. EPA, 877 F.2d 1181 (3rd Cir. 1989). In Davis, EPA defined its
"interests" as the two-fold intent of the regulation (rather than a specific mission-oriented
interest). These "interests" were (1) not appearing to take sides and (2). concern for
agency resources. In Davis, defendants in private litigation arising from an underground
oil spill brought suit to compel EPA to permit requested depositions of an EPA employee
regarding the results of the oil pollution test he had performed on the property in
question. EPA Region 3, in applying the Subpart C regulations, denied the request after
balancing the factors set out in the regulation (the appearance of taking sides and the
effect on agency resources) with the facts surrounding the request for testimony. Based
on these two factors, EPA concluded that providing the testimony was not in EPA's
interest. Id. at 1186.
After finding that the record supported the assertion that EPA did consider these two
factors, the Court found EPA's conclusion "not capricious" and noted, importantly, that
EPA had not withheld relevant information as to the test results at the site. The Court
found that EPA had given the information in written form and had agreed to provide the
employee's testimony by affidavit. Id. at 1187. The Court also found EPA's conclusion
as to the impact on agency resources to not be "arbitrary." Id.
As to EPA's conclusion that providing the testimony would not be in its interests, the
Court noted that EPA defined its interest as "the efficient use of the resources allotted to
it, which the regulations explain encompasses considerations such as use of the
employee's time 'only for official purposes' and ensuring 'that public funds are not used
for private purposes.'" Id The Court also found that EPA's public mission is that of
"developing and enforcing environmental standards and other policies." Id. (citing 50
Fed Reg. 32,385 (August 9,1985)). In finding for EPA, the Court concluded that "we
11
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cannot say that (EPA) has abused its discretion in deciding that its interests in having the
time of its employees (and therefore taxpayers' money) spent on agency business
outweighed the interests of Appellants in having the EPA reports admitted into evidence .
. .Id. at 1188.
• EPA v. General Electric Company, 197 F.3d 592 (2nd Cir. 1999). EPA Region 2 denied
compliance with a subpoena duces tecum in a federal court private litigation involving
liability for cleanup of a contaminated property, asserting that it would not be in EPA's
interest to do so and asserting that "providing the documents would be an inappropriate
use of resources and could be seen as a failure to maintain impartiality in the litigation."
Id. at 594. The Second Circuit did not reach the merits of the denial, but instead
remanded the case to the lower court with instructions to conduct an Administrative
Procedure Act (APA) analysis of EPA's decision. Provide subsequent history. See EPA
v. GeneralElec. Co., 212 F.3d689(2nd Cir. 2000).
• Boron Oil Co. v. Downie, 873 F.2d 67 (4th Cir. 1989). This case involved trial subpoenas
for testimony in a state tort action. EPA's On-Scene Coordinator was subpoenaed to
testify concerning his investigation of an alleged gas leak at a Boron Oil Company
service station. Region 3, under Subpart C, determined that the testimony "would not
clearly be in the interests of EPA." Id. at 68. While holding that the lower court lacked
jurisdiction to compel the EPA employee to testify (because of sovereign immunity), the
Fourth-Circuit; in dicta,- noted that:
The agency [EPAJ has a valid and compelling interest in keeping
its On-Scene Coordinators, as a class, free to conduct their official
business without the distractions of testifying in private civil
actions in which the government has no genuine interest... [t]he
current explosion in environmental litigation must surely give
warning to the EPA that a strict adherence to its internal
regulations is essential if it is to be successful in preventing its
expert employees from being targeted as potential witnesses in
private actions.
Id. at 71-72.
• Mississippi Chemical Corp. v. EPA (S.D. Miss. 2000) (Civil Action No. 5:00cv85BrN)
(unpublished). This was a federal court defamation case between Mississippi Chemical
Corporation and Terra International, Inc. involving an explosion that destroyed Terra's
ammonium nitrate facility in Iowa. The "interests" identified by EPA in responding to
the subpoena in this case were (1) concern for the diversion of agency employees from
their official duties and (2) maintaining the impartiality of the agency in private litigation.
The District Court for the Southern District of Mississippi dismissed EPA's defense of
sovereign immunity and compelled testimony under an analysis of the standards set out
in the Federal Rules of Civil Procedure (FRCP).
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Other Non-EPA "Interests" Cases
• Brodie v. DO J, NO. CIV. A. 07-1257, 2007 WL 2972577 (E.D. Pa. Oct. 5, 2007). In the
underlying litigation in this case case, Brodie sued his former attorney in state court for
legal malpractice that allegedly occurred during Brodie's earlier prosecution for violation
of the Trading with the Enemy Act. Id. at 2-3. In the malpractice suit, both Brodie and
his former counsel sought discovery from former Assistant U.S. Attorneys (AUSA). Id.
at 6-7. After the U.S. Attorney's Office refused to allow the AUSAs to be deposed,
Brodie brought this APA action against the Department of Justice. Id. at 8-9. The court
concluded that that the U.S. Attorney's Office properly refused to comply with the
subpoena when doing so would have been against the Office's interests. Id. at 17-18. In
particular, the Office's interest in having its attorneys carry out the Office's work
outweighed the interests of the plaintiffs in having a deposition. Id. The Court
considered that the AUSAs had provided documents and noted the factors of limited
government resources and that this was an internal agency decision. Id. at 15-18.
However, the court noted that the balance of interests might weigh in favor of the private
litigants if they requested AUSAs trial testimony, which would be more limited in scope
and more valuable to the private litigants. Id.
"This Court cannot conclude that the U.S. Attorney abused this
discretion in deciding that the U.S. Attorney's Office's interest in
not expending the re-sources of Hayes and other attorneys on a
private litigation matter outweighed the interests of Plaintiffs in
deposing Hayes about the accuracy of her former testimony. In
evaluating Plaintiffs' request and making a final decision,
Defendants followed their own agency guidelines and committed
no clear error of judgment. Plaintiffs have failed to show this
decision to be arbitrary or capricious."
Id. at 21-22.
• Moore v. Armour Pharm. Co., 927 F.2d 1194, 1997 (11th Cir. 1991). Similarly, in a case
involving the Department of Health and Human Services (and using a similar standard of
"compliance with the request would promote the objectives of the Department..."), the
Department argued that the requestor's interest in obtaining the testimony of a prominent
CDC employee did not outweigh CDC's interest in having its employee spend his time
on agency business. The Eleventh Circuit agreed with this balancing and found "CDC's
interest in conserving the time and attention of its employees for the fight against AIDS"
was not outweighed by the requestor's request, and upheld the district court's action in
quashing the subpoena. Moore v. Armour Pharm. Co., 927 F.2d 1194, 1997 (11th Cir.
1991).
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• Exxon Shipping Co. v. U.S. Dept. of Interior, 34 F.3d 774 (9th Cir. 1994). The
government's interest in this case involving subpoenas for testimony to DOI staff was (1)
conserving its employee resources and (2) minimizing governmental involvement in
controversial matters unrelated to official business. Id. at 779. The interest of the
requestor's, as defined by the Exxon Shipping court, was the "right to everyman's
evidence." Id. The holding in this case is discussed further below.
• Comsat Corp. v. National Science Foundation, 190 F.3d 269 (4th Cir. 1999) (Similar
regulations regarding whether compliance with a subpoena duces tecum "is in the best
interests of NSF'). In denying compliance with the subpoena for testimony, NSF found
that such compliance would be unnecessarily duplicative and costly. Id at 277. NSF
also considered whether the public interest and the agency's taxpayer-funded mission
would be furthered by compliance. Id. at 277-278. The Fourth Circuit applied the APA
standard to the matter and found for NRF. In doing so, the Court stated that "[w]hen an
agency is not a party to an action, its choice of whether or not to comply with a third-
party subpoena is essentially a policy decision about the best use of the agency's
resources. We find NSF's decision reasonable in this case, and so we defer to the
agency's judgment...Id.
As these cases reflect, in both the identification of "interests" and in the decision making
regarding whether a request is or is not within those interests, the decision-maker needs a factual
understanding^ the underiying-case in which the testimony is sought? the reason the testimony
is sought, the type of testimony sought, and the importance of the testimony. This weighing of
facts against identified "interests" produces a final agency action which is reviewable in federal
court under two standards - eachjof which^ntailsTome balancing of interests.
D. STANDARDS OF REVIEW
To better understand the necessary analysis that must occur when making decisions under
Subpart C, it is important to understand the types of reviews of EPA testimony decisions that
may occur in federal court. For example, requestors, both in private state court litigation and in
private federal court litigation, challenge EPA's denial of testimony primarily through motions to
compel within the underlying litigation, APA challenges within the underlying litigation, or APA
challenges in a separate federal court litigation specifically against EPA.
In response to such challenges, EPA (through the appropriate U.S. Attorneys Office),
asserts a variety of defenses in motions to quash19 or motions for summary judgment20 including
(1) failure to properly serve the subpoena; (2) sovereign immunity as to compliance with the
subpoena especially if the underlying action is in state court; (3) underlying federal court lacks
19 If the underlying matter is in state court, EPA may seek to remove its motion to quash to
federal court.
20 This may occur within a federal court APA action against EPA.
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subject matter jurisdiction and only remedy is separate APA suit against EPA; and (4) EPA
denial not arbitrary or capricious under APA standard of review.21
These various types of challenges and responses give rise to two basic reviews of EPA
decisions on requests for testimony: an APA review and a review under FRCP. As discussed
more fully below, both of these reviews entail some balancing of interests by the reviewing
court.
APA Review
The scope of judicial review for a court reviewing an APA claim is set forth in 5 U.S.C. §
706. Pursuant to Section 706(2)(A), the reviewing court may only reverse the agency's decision
to withhold testimony or documents if the agency action could be considered "arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. §
706(2)(A). The essential function of judicial review is to "ensure that the agency is engaged in
reasoned decision making." United States v. Garner, 767 F.2d 104, 116 (5 Cir. 1985); Moore v.
Armour Pharmaceutical Co.. 927 F.2d 1190, 1197-1198 (11th Cir. 1991); Comsat Corp. v.
National Science Found., 190 F.3d 269, 277 (4th Cir. 1999); EPA v. General Electric Co., 197
F.3d 592 (2nd Cir. 1999). The United States Supreme Court outlined the course for agencies and
district courts to follow relative to their respective roles under the APA:
The scope of review under the 'arbitrary and capricious' standard is narrow and a
court is not to substitute its judgment for that of the agency. Nevertheless, the
agency must examine the relevant data and articulate a satisfactory explanation
for its action including a 'rational connection between the facts found and the
choice made.' [citations omitted]. In reviewing that explanation, we must
'consider whether the decision was based on a consideration of the relevant
factors and whether there has been a clear error of judgment.' [citations omitted].
Normally, an agency rule would be arbitrary and capricious if the agency has
relied on factors which Congress has not intended it to consider, entirely failed to
consider an important aspect of the problem, offered an explanation for its
decision that runs counter to the evidence before the agency, or is so implausible
that it could not be ascribed to a difference in view or the product of agency
expertise....
Motor Vehicle Manufacturers Assoc. of United States v. State Farm Mutual Auto. Inc. Co., 463
US 29,42(1983).
In discussing the APA standards of review in the context of subpoenas for testimony, the
Second Circuit noted that "[t]he application of these standards will maintain the appropriate
balance between the interests of the government in conserving limited resources, maintaining
necessary confidentiality and preventing interference with government functions, and the
21 Assertions 1-4 apply to subpoenas for testimony and Assertions 3-4 will generally apply to
requests for testimony.
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interests of suitors in discovering important information relevant to the prosecution or defense of
private litigation." EPA v. General Electric, 197 F.3d 592 (2iul Cir. 1999) (emphasis added).
Similarly, in another subpoena for testimony action, the Eleventh Circuit applied this balancing
of interests in its APA review in Moore v. Armour Pharmaceutical Co. In Armour, the Court
stated that
The primary concern underlying the district court's decision to quash the
subpoena was the CDC's interest in conserving the time and attention of its
employees for the Fight against AIDS. The plaintiffs' interest in getting the
deposition of Dr. Evatt simply cannot compare to the government's interest in
maximizing the use of its limited resources in dealing with a national health crisis.
Armour, 927 F.2d at 1197. Again, in Davis Enterprises (an APA case), the Eleventh Circuit
stated:
"We do not gainsay that there is a generalized public interest in having public
employees cooperate in the truth seeking process by providing testimony useful in
litigation. While, as we have stressed, it is not likely that we would have
interpreted the EPA's interests as narrowly as it has done here, we cannot say that
it abused its discretion in deciding that its interest in having the time of its
employees (and therefore taxpayers' money) spent on agency business
outweighed the interests of Appellants in having the EPA reports admitted into
evidence in private litigation to which the EPA was not a party."
Davis Enterprises, 877 F.2d at 1188.
Federal Rules of Civil Procedure (FRCP) Review
Certain federal appellate courts and certain federal district courts do not recognize
sovereign immunity under Subpart C-type regulations as a defense to subpoenas for testimony in
federal court. See Exxon Shipping Co. v. United States Dept. of Interior, 34 F.3d 774 (9th Cir.
1994); In re Bankers Trust Co., 61 F.3d 465 (6th Cir. 1995); Carter v. Mississippi Dep't of
Corrections, 1996 WL 40724 (N.D. Miss. 1996); Mississippi Chemical Corp. v. EPA, Civil
Action No. 5:OOcv85BrN (S.D. Miss. 2000); Houston Business Journal, Inc. v. Office of
Comptroller of Currency, 86 F.3d 1208 (D.C. Cir. 1996). Rather, these courts find agencies
subject to federal court subpoenas and instead of applying an APA standard of review to agency
decisions not to comply with subpoenas, they apply the balancing test arising out of Rule
26(b)(1) of the Federal Rules of Civil Procedure - which allows for the discovery of information
reasonably calculated to lead to the discovery of admissible evidence. This FRCP standard,
while applying a similar balancing of interests, applies a less deferential standard in that
balancing than that applied under the APA. See Exxon Shipping, 34 F.3d at 778-779; Comsat
Corp. v. National Science Found., 190 F.3d 269 (4th Cir. 1999).
Under this FRCP balancing, the courts weigh such factors as exclusivity or extensiveness
of knowledge of the subpoenaed witness, ability to testify comprehensively about the matter,
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whether the testimony is duplicative of testimony from non-EPA witnesses, whether the
appearance will be unduly burdensome to the agency, and whether the testimony allows EPA to
remain impartial in the litigation. See Mississippi Chemical Corp. v. EPA, Civil Action No.
5:00cv85BrN (S.D. Miss. 2000). As noted by the Ninth Circuit, "[u]nder the balancing test
authorized by the rules [FRCP], courts can ensure that the unique interests of the government are
adequately considered. Exxon Shipping, 34 F.3d at 780. The government's interest, as
contended by the Department of Interior in the Exxon Shipping case was (1) conserving its
employee resources and (2) minimizing governmental involvement in controversial matters
unrelated to official business. Id. at 779. The interest of the requestor's, as defined by the Exxon
Shipping court was the "right to everyman's evidence.". Id. The Ninth Circuit remanded the case
back to District Court for the application of a FRCP balancing test.
E. EMPLOYEE COMPLIANCE WITH SUBPOENAS
Recent 2001 OGC guidance on EPA employee compliance with subpoenas
(Memorandum from Maria Diamond, OGC, to Regional Counsels, dated March 16, 2001) is as
follows: With regard to compliance with state or federal court subpoenas for testimony, EPA's
Subpart C regulations state that unless an employee has received prior approval to honor the
subpoena, EPA's regulations state that "the employee must appear at the stated time and place
produce a copy of these regulations and respectfully refuse to provide any testimony or produce
any documents," 40 C.F.R. § 2.404(b)(emphasis added), or "respectfully refuse to produce the
subpoenaed materials," in response to a subpoena duces tecum. 40 C.F.R. § 2.405.
From time to time, an AUSA who is handling a matter in which an EPA employee has
been subpoenaed, has decided that the employee should not appear in court to respond to a
subpoena. This has occurred, for example, when the AUSA has concluded that the parties have
been adequately informed beforehand that the employee would not testify, and that it would be
pointless for EPA to bear the expense and inconvenience involved in having the employee
appear. Also, for various strategic reasons, at times the AUSA has concluded that the risks of a
contempt citation against an employee who does not appear are outweighed by other adverse
possibilities if the employee does appear. For example, a judge might order an employee who is
present to answer questions.
There is no DOJ guidance on this issue, nor is there any single course of action that
should apply in every instance when an employee is subpoenaed to appear in a court proceeding
covered by EPA's Touhy regulations. EPA Region 4 attorneys must continue to advise
subpoenaed EPA employees and the AUSAs of the requirements of EPA's regulations and of the
potential consequences of a decision not to comply with those regulations.
Ultimately, the decision of whether a subpoenaed EPA employee should appear in court
must be made by the AUSA. In arriving at this decision, the AUSA should be assisted by the
appropriate EPA legal office in considering all the facts and circumstances in the particular
situation and in balancing the risks involved in the employee's failure to appear against the
consequences that may result from the employee's appearance. If the AUSA advises an
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employee not to appear, the EPA Region 4 attorney should ensure that the AUSA has notified
the other parties and has explained the reasons why the employee will not appear.
F. JUDICIAL REVIEW OF AGENCY DENIAL OF REQUEST FOR
TESTIMONY
When EPA determines that the subpoenaed employee will not testify, that decision may
be challenged in court in two main ways. The denial may be challenged as part of the underlying
litigation or the denial may be challenged in a separate APA action brought in federal court.
How the denial is treated may depend on whether the underlying litigation is in federal or state
court, and the parties involved.
Some jurisdictions review agency denials under the APA's arbitrary and capricious
standard without requiring third party litigants to initiate a separate lawsuit against the agency.
EPA v. General Electric Co., 197 F.3d 592 (2nd Cir. 1999) (holding that federal district courts on
removal may review agency denials according to APA standards without requiring a separate
APA action against the agency); In re Vioxx Products Liability Litigation, 235 F.R.D. 334 (E.D.
La. Mar. 15, 2006) (reviewing FDA denial according to both APA and FRCP 45 standards
without requiring separate APA action); Dent v. Packerland Packing Co., Inc., 144 F.R.D. 675,
679 (D. Neb. 1992) (reviewing US DA denial under APA standard without requiring a separate
APA action). 22
Others courts have come to the opposite conclusion and hold that litigants seeking
discovery against a third party agency must sue the agency under the APA, in a separate lawsuit,
if the agency denies a discovery request pursuant to its Touhy regulations. See Smith v. Cromer,
159 F.3d 875, 881 (4th Cir. 1998) (holding that a federal district court has no authority to enforce .
a subpoena against a federal agency on removal when the state court had no such authority and,
therefore, that the third party litigant's only option is to pursue an independent APA action
against the agency in federal court); COMSAT Corp. v. National Science Foundation, 190 F.3d
269, 278 (4th Cir. 1999) (holding that "fp]rivate litigants who are dissatisfied with an agency's
response to a third-party subpoena or to a FOIA request may still obtain federal court review
under the APA[]"). The courts that require private litigants to pursue a separate APA action
against an agency to compel testimony or the production of documents base their holdings on
principles of sovereign immunity. See COMSAT Corp, 190 F.3d at 277.
In 2009, in United States v. Walker, a party to a private lawsuit moved to compel
deposition testimony by a Region 4 employee in the private lawsuit. United States v. Walker,
2009 U.S. Dist. LEXIS 74214 (M.D. GA) (August 21, 2009). The court found that EPA's
refusal to deny testimony was arbitrary and capricious. The Court applied the APA standard of
review (and declined to apply a standard of review from FRCP Rule 45). Walker at 9. The
Court heavily weighed that the employee's testimony was "likely to lead to the discovery of
"" Region 4 recently had a matter where the subpoena denial was successfully resolved as part of
the underlying litigation. Ashley II of Charleston LLC v. PCS Nitrogen, Inc. Case No. 2:05-cv-
2782 (D. SC).
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relevant evidence" and that EPA did not provide the information from another source. Walker at
13-14.
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II. PROCESSING REQUESTS FOR TESTIMONIAL AND DOCUMENTARY
EVIDENCE UNDER SUBPART C
A. REQUESTS BY FEDERAL AGENCIES, STA TE AND LOCAL
GOVERNMENTS FOR TESTIMONY (VOLUNTARY AND SUBPOENA)
- Immediately inform the Region 4 attorney who tracks all Region 4 testimony requests
that you (or the Region) have received a request for testimony (this attorney is currently
Vera Kornylak, 2-9589).
Step 1. Read Parts 2.401-2.402. Requests from federal, state or local agencies are processed
under Section 2.402(a). Under that Section, the Regional Administrator (RA) has authority -
which has not been redelegated - to permit regional Agency personnel to testify at the request of
government agencies when EPA is not a party to the underlying litigation. Review the legal
Note: The form of the request is not controlling. A written request for documentary or
testimonial evidence is not required, although written requests are preferred. Sections 2.402,
Step 2. Determine whether the request is from a federal, state or local government. If federal,
go to Step 3. If from a state oi^local government, go to Step 6,
Step 3. If the request is from a federal agency, determine the nature, method and timing of
testimony. Remember that requests for testimony from a federal agency which is a party in
Federal civil proceedings are not within the scope of Subpart C.
iscuss the request with the employee and the employee's immediate supervisor.
/Stepjj./vVithin 7-10 days following receipt of the request/subpoena, set up a briefing with the
^Regional Counsel (Mary Wilkes), the employee, his/her manager, and your manager to discuss
how we will approach the decision on the request.
brief.
2.403.
Step 6. Prepare a decision letter for the RA's signature (no sample letter is available) which
contains your recommendation on the request. Hie decision letter should contain enough
information to stand on its own for any subsequent court review.
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- Note that no particular standard is enunciated in Section 2.402(a) to guide Agency
determinations on whether to grant requests made by other federal agencies. The structure and
purpose of Subpart C suggests that such requests, which are rare, should almost always be
favorably accorded if they are reasonably related to Agency business or interests, or if not related
to Agency interests, granting the request will not significantly detract from the work of the
affected employee, nor in the judgment of the Agency, interfere with the Agency carrying out its
ongoing statutory and regulatory responsibilities.
Route decision letter as follows:
* employee's immediate supervisor
* employee's division director
* OEA legal contact for testimony requests (currently Vera Kornylak)
* OEA front office (legal) (Bill Anderson/Mary Wilkes)
* Regional Administrator's Chief of Staff
* Regional Administrator
The decision letter should blind copy the Region 4 attorney in charge of tracking testimony
requests (currently Vera Komylak).
Step 7. If the request for testimony or documentary evidence is from a state or local agency,
determine the nature, method and timing of the testimony. If this information is not available
from the program, then contact the requestor directly.
Step 8. Discuss the request with the employee and the employee's immediate supervisor.
Step 9. Within 7-10 days following receipt of the request/subpoena, set up a briefing with the
Regional Counsel (Mary Wilkes), the employee, his/her manager, and your manager to discuss
how we will approach the decision on the request.
Step 10. Prepare a decision letter for the RA's signature which contains your recommendation
on the request (a sample RA determination letter can be found at Attachment -1). The decision
letter should contain enough information to stand on its own for any subsequent court review.
- Note that under Section 2.402(a), requests made by state or local governments for testimony are
regularly granted by the RA "where it is in the interests of EPA."23 To guide your
recommendation to the RA, review the legal brief above.24
23 This is a lower standard than the "clearly in the interests of EPA" standard in Section
2.402(b), which applies when evidentiary subpoenas are issued or voluntary requests for
testimony are made by private litigants.
24 Examples of approved requests include, but are not limited to, requests for voluntary
testimony made by state authorities to support state environmental enforcement actions and
instances in which there has been intergovernmental cooperation or consultation on a state or
local environmental program.
21
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Route the decision letter as follows:
* employee's immediate supervisor
* employee's Division Director
* OEA legal contact for testimony requests (currently Vera Kornylak)
* OEA front office (legal) (Bill Anderson/Mary Wilkes)
* Regional Administrator's Chief of Staff
* Regional Administrator
The decision letter should blind copy the Region 4 attorney in charge of tracking testimony
requests (currently Vera Kornylak).
Step 9. Before testimonial evidence is provided, review the employee s anticipated testimony.
Attend the court proceeding in which the Agency employee is to testify if deemed necessary by
any relevant program or OEA manager.25
REQUESTS BY PRIVATE LITIGANTS FOR VOLUNTARY TESTIMONY
- Immediately inform the Region 4 attorney who tracks all Region 4 testimony requests
that you (or the Region) have received a request for testimony (this attorney is currently
Vera Kornylak; 2-9589).
Step 1. Read Parts 2.401-2.403. Requests from private litigants for voluntary testimony are
processed under Sections 2.402(b), 2.403. Requests by private litigants are decided by the
Regional Counsel, in consultation with the appropriate Division Director. Review the legal brief.
Note: Requests "must be in writing and must state the nature of the requested testimony and the
reasons why the testimony would be in the interests of EPA." Section 2.403.
Step 2. If the request is not in writing or does not state why the testimony would be in the
interests of EPA, contact the requestor by telephone or by letter, and ask the requestor to submit
a written request (or elaborate on its written request). The requestor's written request should be
addressed to the Regional Counsel, with a copy to you.
More often than not, requestors are unaware of EPA's regulations. It is suggested that you
review the regulations and the attached legal brief as you may need to explain the regulations to
the requestor at this time.
Note: If the written request is simply a request for documents, it should be treated as a FOIA
request and processed accordingly. The requestor should be informed that the request is being
25 Pursuant to EPA's internal policies, credential verification may be required. Regional
attorney is responsible for credential verification of an EPA employee who will testify (see EPA
Region 4 Credential Verification Policy).
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processed under FOIA and be provided the FOIA Coordinator's name and telephone number. If
the request is an oral request for documents, the requestor should be asked to submit a written
FOIA request.
'Step 3. Discuss the request for testimony with the employee and the employee's immediate
supervisor. If additional information is needed, contact the requestor directly.
'Step 4. \Vithin 7-10 days following receipt of the request/subpoena, set up a briefing with the
Regional Counsel (Mary Wilkes), the employee, his/her manager, and your manager to discuss.
how"kve will approach the decision on the request.
Step 5. Send a memorandum to the employee's immediate supervisor requesting a written
recommendation from the employee's Division Director on whether the request is or is not
"clearly in the interests of EPA." (A sample memorandum to the employee's supervisor can be
found at Attachment 2.)
Step 6. Obtain the written recommendation of the employee's Division Director. The
recommendation should explain why the requested testimony is or is not "clearly in the interests
of EPA.l^ (A sample memorandum from a Division Director can be found at Attachment 3.)
StepJ7/Prepare a decision letter for the Regional Counsel's signature which contains your
"recommendation on the request (Sample Regional Counsel decision letters can be found at
Attachment - 4.) The decision letter should contain enough information to stand on its own for
any subsequent court review.
- Consider the specific facts of the request in light of the purposes of Subpart C, including all
relevant criteria enumerated in Section 2.401(c). In making this recommendation, review the
legal brief above.
- Often, the Agency employee has no information or knowledge independent from the existing
case file, material from which may be made available through a FOIA request and/or Agency
authentication of non-confidential, non-privileged documents. Under this scenario, the
testimony requested may be cumulative and the requestor's relative need for the Agency
employee's testimony is therefore considerably lessened.
Route the decision letter as follows:
* employee's immediate supervisor
* employee's branch chief
* employee's Division Director
* OEA legal contact for testimony requests (currently Vera Kornylak)
* OEA Deputy Regional Counsel
* OEA Regional Counsel
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The decision letter should blind copy the Region 4 attorney in charge of tracking testimony
requests (currently Vera Komylak).
Step 8. If a request for testimony' is approved by the Regional Counsel, assist the Agency
employee in preparing his/her testimony. Attend the court proceeding in which the Agency
employee is to testify, if deemed necessary by any relevant program or OEA manager.
C. RESPONDING TO STA TE COURT SUBPOENAS BY PRIVA TE LITIGANTS
- Immediately inform the Region 4 attorney who tracks all Region 4 testimony subpoenas
that you (or the Region) have received a subpoena for testimony (this attorney is currently
Vera Kornylak, 2-9589).
Step 1. Read Parts 2.404 and 2.405. Responses to subpoenas (both for testimony and for the
production of documents) are processed under these provisions. Review the legal brief.
Step 2. Review the subpoena and determine if there are any defects. A short discussion of
subpoenas can be found at Attachment 5.
Step 3. Contact the party (or counsel) which issued the subpoena. Determine the nature of the
testimony or documents sought, the type of case involved, and the party's reason for requesting
EPA employee testimony or documentsr Explain-the regulatory requirements and the standard
for approval - "clearly in the interests of EPA."
Also, explain that while EPA will review the request under its regulations, it is not subject to the
subpoena power of the state court because of sovereign immunity. Request that the subpoena be
withdrawn and that a voluntary request for testimony or a FOLA for documents be submitted
instead.
Step 4. If the party (or counsel) agrees to withdraw the subpoena, make sure it is in writing.
Process any voluntary testimony request under the procedures in Section 11(B). Process any
FOLA under the appropriate FOIA regulations.
Step 5. If the party (or counsel) does not agree to withdraw the subpoena, proceed to review the
request under the "clearly in the interests of EPA" standard.
Step 6. Meet with the employee and the employee's immediate supervisor to discuss the details
of the subpoenaed testimony or documents.
Step 7. Within 7-10 days following receipt of the request/subpoena, set up a briefing with the
Regional Counsel (Mary Wilkes), the employee, his/her manager, and your manager to discuss
how we will approach the decision on the request.
Step 8. Follow-up with a memorandum to the employee's immediate supervisor requesting a
written recommendation from the employee's Division Director on whether the request is or is
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not "clearly in the interests of EPA." (A sample memorandum to the employee's immediate
supervisor can be found at Attachment 2). Obtain this written memorandum from the
appropriate Division Director. This memorandum should explain why the subpoenaed testimony
or documents are or are not "clearly in the interests of EPA" to provide. (A sample memorandum
from a Division Director can be found at Attachment 3).
Step 9. Prepare a decision letter for the Regional Counsel's signature which contains your
recommendation on the request.(Sample Regional Counsel decision letters relating to
subpoenaed testimony can be found at Attachment 6). The decision letter should contain enough
information to stand on its own for any subsequent court review.
- Consider the specific facts of the request in light of the purposes of Subpart C, including all
relevant criteria enumerated in Section 2.401(c). Before making this recommendation, review the
legal brief above.
- Often, the Agency employee has no information or knowledge independent from the existing
case file, material from which may be made available through a FOIA request and/or Agency
authentication of non-confidential, non-privileged documents. Under this scenario, the
testimony sought may be cumulative and the requestor's relative need for the Agency
employee's testimony considerably lessened.
Route the decision letter as follows:
* employee's immediate supervisor
* employee's branch chief
* employee's Division Director
* OEA legal contact for testimony requests (currently Vera Kornylak)
* OEA Deputy Director (legal) Bill Anderson
* Regional Counsel
The decision letter should blind copy the Region 4 attorney in charge of tracking testimony
requests (currently Vera Kornylak).
NOTE: For subpoenas for the production of documents, the denial letter should indicate that
according to Section 2.405, when a response to a subpoena has not been granted by EPA for the
production of documents, EPA treats the subpoena as a FOIA request if it "is essentially a
written request for documents." If so, the denial letter should indicate that EPA is processing the
subpoena as a FOIA.
NOTE: The regulations provide that this treatment of a subpoena for documents as a FOIA is to
occur after the Agency reviews the subpoena under the "clearly in the interests of EPA" standard
and has denied compliance with the subpoena.
Step 10. If the subpoenaed testimony or document production is approved by the Regional
Counsel, assist the Agency employee in preparing for the testimony or providing the documents.
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Attend the court proceeding in which the Agency employee is to testify or produce documents, if
deemed necessary by any relevant program or EAD manager. Note that if the subpoena for the
production of documents is approved, there is no need to treat the subpoena as a FOIA request.
Step 11. If the subpoenaed testimony or document production is not approved by the Regional
Counsel (via an issued Decision Letter), contact the party who issued the subpoena and request
that it be withdrawn (in writing). If the party refuses to withdraw the subpoena contact the
appropriate AUSA immediately. Subpart C regulations require the EPA employee to appear at
the stated time and place, produce a copy of the Subpart C regulations, and respectfully refuse to
testify. However, the AUSA will ultimately make the decision of whether a subpoenaed EPA
employee should appear in court (see Legal Brief). If the AUSA advises an EPA Region 4
employee not to appear, the EPA Region 4 attorney should ensure that the AUSA has notified
the other parties and has explained the reasons why the employee will not appear.
D. RESPONDING TO A FEDERAL COURT SUBPOENA BY A PRIVATE
UTIGANT
- Immediately inform the Region 4 attorney who tracks all Region 4 testimony subpoenas
that you (or the Region) have received a subpoena for testimony (this attorney is currently
Vera Kornylak, 2-9589).
Step 1. Read Parts 2.404 and 2.405. Responses to subpoenas-(both-for testimony and for the-
production of documents are processed under these provisions). Review the legal brief.
Step 2. Review the subpoena and determine if there are any defects. See Attachment V-5.
Step 3. Contact the party (or counsel) which issued the subpoena. Determine the nature of the
testimony or documents sought, the type of case involved, and the party's reason for requesting
EPA employee testimony or documents. Explain the regulatory requirements and the standard
for approval - "clearly in the interests of EPA." Request that the party (or counsel) which issued
the subpoena submit a written explanation of how they believe the sought-after testimony or
documents are "clearly in the interests of EPA" to provide.
Step 4. Meet with the employee and the employee's immediate supervisor to discuss the details
of the subpoenaed testimony or documents.
Step 5. Within 7-10 days following receipt of the request/subpoena, set up a briefing with the
Regional Counsel (Mary Wilkes), the employee, his/her manager, and your manager to discuss
how we will approach the decision on the request.
Step 6. Follow-up with a memorandum to the employee's immediate supervisor requesting a
written recommendation from the employee's Division Director on whether the request is or is
not "clearly in the interests of EPA." (A sample memorandum to the employee's supervisor can
be found at Attachment 2). Obtain this written memorandum from the appropriate Division
Director. This memorandum should explain why the subpoenaed testimony is or is not "clearly
26
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in the interests of EPA." (A sample memorandum from a Division Director can be found at
Attachment 3).
Step 7. Prepare a decision letter for the Regional Counsel's signature which contains your
recommendation on the request.(no sample available for federal court subpoenas - you can
modify the state court subpoena sample decision letters which can be found at Attachment 6).
The decision letter should contain enough information to stand on its own for any subsequent
court review.
- Consider the specific facts of the request in light of the purposes of Subpart C, including all
relevant criteria in Section 2.401(c). Before making this recommendation, review the legal brief
above.
- Often, the Agency employee has no information or knowledge independent from the existing
case file, material from which may be made available through a FOIA request and/or Agency
authentication of non-confidential, non-privileged documents. Under this scenario, the
testimony sought may be cumulative and the requestor's relative need for the Agency
employee's testimony considerably lessened.
NOTE: For subpoenas for the production.of documents, the denial letter should further indicate
that, according to Section 2.405, when response to a subpoena has not been granted by EPA for
the production of documents, EPA treats the subpoena as a FOIA request if it "is essentially a
written request for documents." If so, the denial letter should indicate that EPA is processing the
subpoena as a FOIA.
NOTE: The regulations provide that this treatment of a subpoena for documents as a FOIA is to
occur after the Agency reviews the subpoena under the "clearly in the interests of EPA" standard
and has denied compliance with the subpoena.
Route the decision letter as follows:
* employee's immediate supervisor
* employee's branch chief
* employee's Division Director
* OEA legal contact for testimony requests (currently Vera Komylak)
* OEA Deputy Director (legal) Bill Anderson
* Regional Counsel
The decision letter should blind copy the Region 4 attorney in charge of tracking testimony
requests (currently Vera Komylak).
Step 8. If the subpoenaed testimony or document production is approved by the Regional
Counsel, assist the Agency employee in preparing for the testimony. Attend the court
proceeding in which the Agency employee is to testify, if deemed necessary by any relevant
27
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program manager or OEA manager. Note that if the subpoena for the production of documents
is approved, there is no need to treat the subpoena as a FOIA request.
Step 9. If the subpoenaed testimony or document production is not approved by the Regional
Counsel (via an issued Decision Letter), contact the party who issued the subpoena and request
that it be withdrawn (in writing). If the party refuses to withdraw the subpoena contact the
appropriate AUSA immediately. Subpart C regulations require the EPA employee to appear at
the stated time and place, produce a copy of the Subpart C regulations, and respectfully refuse to
testify. However, the AUSA will ultimately make the decision of whether a subpoenaed EPA
employee should appear in court (see Legal Brief). If the AUSA advises an EPA Region 4
employee not to appear, the EPA Region 4 attorney should ensure that the AUSA has
notified the other parties and has explained the reasons why the employee will not appear.
E. EMERGENCY REQUESTS/SUBPOENAS26
* Last minute requests for testimony bv federal, state or local agencies: we should attempt to
accommodate any such requests by expediting the processes set out in Section 11(A) above.
*Last minute requests for voluntary testimony bv private litigants: when requests for testimony
come in without enough time to fully process under Section 11(B) above, the attorney assigned to
matter should attempt an expedited review, if time permits. If the testimony request can be
approved in an expedited- manner,- a short memo to that effect should be prepared for internal,
purposes. An approval letter should also be prepared (even if after the fact) for record-keeping
purposes.
If an expedited review indicates that the request should be denied, then the attorney assigned to
the matter should immediately contact the requesting party, explain the regulations and the likely
result based upon an expedited review. A denial letter to the requestor should be prepared for
record-keeping purposes when time permits.
If an expedited review is not at all possible given the time constraints, the attorney assigned to
the matter should immediately contact the requestor, explain the regulations, and indicate that
not enough time was given to process the request under Subpart C. A follow-up letter to the
requestor memorializing this conversation should be sent immediately.
*Last minute subpoenas for testimony bv private litigants: If time permits, an expedited review
should be performed under Sections 11(C) and (D) above. If the review indicates that the
subpoenaed testimony will be denied, the attorney assigned to the matter should contact the
requesting party, explain the regulations and inform them of the likely results based upon the
expedited review. If the requesting party refuses to withdraw the subpoena, immediately contact
OGC (Kevin Miller, 202-564-2691: OGC's Information Law Section within the Finance and
Operations Division has responsibility for EPA testimony issues). In addition, and because the
26 Defined under a common sense standard, but probably any request or subpoena that leaves less
than 5 working days before the testimony is needed/required.
28
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Regions have the authority and responsibility to work directly with AUSAs on these testimony
issues, immediately contact the appropriate AUSA and inform him/her of the situation.
If an expedited review is not at all possible given the time constraints, the attorney assigned to
the matter should immediately contact the requestor, explain the regulations and indicate that not
enough time was given to process the subpoena under Subpart C. If the requesting party refuses
to withdraw the subpoena, immediately contact OGC (Kevin Miller, 202-564-2691) and the
appropriate AUSA.
F. A UTHENTICA TION OF DOCUMENTS
:|tSection 2.406 provides that EPA will "authenticate" any available records for purposes of
admissibility into evidence. We routinely offer to do this in our denial letters (see various
Attachments).
* Authentication of the document is available if the document is otherwise releasable under
FOIA. Making this determination does not require the authentication to go through the EAD
FOIA Coordinator. The attorney assigned to the matter should make the determination as to
whether the document is releasable under FOIA.
*[f releasable, the attorney assigned to the matter must have the legal custodian authenticate the
document.. The "person having legal custody of the record" can be the Regional Administrator,
the relevant Division Director, or his/her designee. Designees are often Divisional records
coordinators.
~After the document is authenticated, the attorney assigned to the matter must route it to the
Regional Counsel who certifies the authentication and provides the official EPA seal.
*There is a $25.00 fee for each "authentication."
*A sample document authentication form can be found at Attachment 7.
III. CHALLENGES TO AGENCY FINAL ACTIONS/MOTIONS TO COMPEL/FOR
CONTEMPT
A. CHALLENGES TO DENIAL LETTERS
*Denial letters (whether from the Regional Counsel or from the Regional Administrator) are
final agency actions under the Administrative Procedure Act. Review the legal brief for a
discussion on court review of denial letters.
"When there are any indications that a requesting party (or its counsel) intends to challenge an
EPA denial letter, the EPA Region 4 attorney handling the matter should contact OGC (Kevin
Miller, 202-564-2691) and the appropriate AUSA immediately.
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B. MOTIONS TO COMPEL/FOR CONTEMPT
*Upon receipt of any motion to compel compliance with a subpoena or any motion for contempt
for failure to comply with a subpoena, the EPA Region 4 attorney handling the matter should
contact OGC (Kevin Miller, 202-564-2691) and the appropriate AUSA immediately.
IV. RECORD-KEEPING
* Given that determinations made under Part 2, Subpart C, are final agency actions, it is
important to maintain the documents referred to in Section II (which will constitute the Agency's
administrative record) in an organized manner.
* OEA will maintain the official agency record for determinations made under Part 2, Subpart C.
* Archive closed files with the OEA Files Contractor. Do not keep closed files in your office.
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j "Most recent —' use as model" v~ 1
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
ATLANTA FEDERAL CENTER
61 FORSYTH STREET
ATLANTA, GEORGIA 30303-8960
jUl 212011
VIA U.S. MAIL AND EMAIL
Henry W. Jones, Jr.
Jordan Price Wall Gray Jones & Carlton, PLLC
1951 Clark Avenue
Raleigh, North Carolina 27605-0669
Re: House of Raeford Farms, Inc. v. North Carolina Department of Environment and Natural
Resources, Case No. 10 EHR 5508 - Subpoena for Deposition Testimony of Kenneth Rhame
Dear Mr. Jones:
The purpose of this letter is to respond to your client. House of Raeford Farms, Inc.'s (House of
Raeford's) subpoena, dated June 22,2011, tor deposition testimony from Kenneth Rhame, U.S.
Environmental Protection Agency, Region 4 On-Scene Coordinator (OSC), in connection with the
above-referenced matter. The subpoena, issued by the North Carolina Office of Administrative
Hearings, commands Mr. Rhame to appear for a deposition in Raleigh, North Carolina, on July 28,
2011. As you know, the EPA previously declined House of Raeford's request to interview Mr. Rhame
by letter dated April 14, 2011. A copy of that letter is enclosed.
According to your June 22, 2011, letter accompanying the subpoena, House of Raeford is seeking
Mr. Rhame's deposition testimony regarding his investigation of the alleged sludge release into Beaver
Dam Creek in September 2009, including his role in the investigation, his observations, and the results
of his investigation. For the reasons stated below, Mr. Rhame is not authorized to provide the testimony
sought under the subpoena.
Federal regulations govern the EPA's response to subpoenas for testimony where the United States
Government is not a party. Pursuant to 40 C.F.R. Part 2, Subpart C, EPA employees are prohibited from
testifying about official matters in any proceeding in which the United States Government is not a party,
unless authorized. The purposes of these regulations are to ensure that employees' official time is used
only for official purposes, to maintain the impartiality of the EPA among private litigants, to ensure that
public funds are not used for private purposes, and to establish procedures for approving testimony or
production of documents when clearly in the interests of the EPA. 40 C.F.R. § 2.401(c). These
regulations spell out two different standards. At the request of State or local governments, EPA
employees may testify where it is "in the interests of EPA," with the approval of the Regional
Administrator. 40 C.F.R. § 2.402(a). In response to requests from other parties, including House of
Raeford, EPA employees may testify, either voluntarily or in response to subpoenas, only where it
"would clearly be in the interests of EPA," as determined by the General Counsel or his designee. 40
Internet Address (URL) • http://www.apa.90v
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C.F.R. §§ 2.402(b) - 2.404. As Regional Counsel for Region 4, L am the General Counsel's designee
who is authorized to make such determinations.
Determining whether requested or subpoenaed testimony is "clearly in the interests of EPA" is
necessarily fact-based. The nature of the underlying litigation and testimony must be weighed against
the purposes of the regulations and, here in paJ^ular^against the Agency's strong interest in
maintaining control of its workforce and in maximizing tcwfltse of its limited resources. This is
especially true for EPA Region 4, which is involved in many matters that find their way into litigation.
Because of the fact-based nature of the "clearly in the interests of EPA" inquiry, the following
background information is necessary and informs my ultimate determination.
Background Information
In September 2009, North Carolina Department of Environment and Natural Resources (NCDENR)
investigated a complaint of a release of unknown sludge into Cabin Creek, a tributary to Beaver Dam
Creek, in Rose Hill, North Carolina. NCDENR confirmed the release and collected water samples that
showed elevated levels of fecal e-coli and very low dissolved oxygen levels. On September 14, 2009,
NCDENR requested that the EPA assign an OSC to oversee the response. The following day, Mr.
Rhame initiated a response in cooperation with NCDENR.
On August 10, 2010, NCDENR issued its Findings and Decision and Assessment of Civil Penalties
against House of Raeford, which then filed a Petition for Contested Case Hearing in the North Carolina
Office of Administrative Hearings. The EPA understands that this administrative hearing is not yet
scheduled and is expected to be held in September 2011 or later. In December 2010, the State of North
Carolina requested that Mr. Rhame testify as a witness at the hearing. In a letter dated February 25,
2011, pursuant to 40 C.F.R. § 2.402(a), EPA Region 4 Regional Administrator Gwendolyn Keyes
Fleming granted this request, finding that providing such testimony would be in the interests of the EPA.
She "concluded that the production of Mr. Rhame's voluntary testimony would contribute to EPA's
mission and would not constitute an improper diversion of EPA resources." Ms. Fleming further stated,
"As a fact witness, Mr. Rhame will limit his testimony to his knowledge of the sludge release that he
observed in Beaver Dam Creek, and he will not offer an opinion or conclusion as to the origin of that
release." A copy of Ms. Fleming's letter is enclosed.
In January 2011, House of Raeford requested permission to interview Mr. Rhame concerning his
investigation of the Beaver Dam Creek sludge release. In a letter dated April 14, 2011, EPA Region 4
Deputy Regional Counsel Nancy Tommelleo declined that request, noting that Mr. Rhame would be
available for cross-examination at the administrative hearing. The EPA also responded to House of
Raeford's Freedom of Information Act (FOLA) request (No. 04-FOI-00304-11) concerning Mr. Rhame's
investigation and produced all releasable, responsive documents, including all photos, sampling data,
correspondence, and Pollution Reports.
"Clearly in the Interests of EPA" Analysis
To determine whether it "would clearly be in the interests of EPA" to provide Mr. Rhame's testimony,
the nature of the underlying litigation and the nature of and need for that testimony must be weighed
against the EPA's strong interest in maintaining control over its workforce and conserving and
maximizing the use of its limited resources, which includes personnel and their time.
-------
As described above, the EPA has agreed to make Mr. Rhame available to testily as a fact witness at the
administrative hearing. Through the EPA's FOIA response, Houseof Raeford has already received all
releasable documents concerning Mr. Rhame's investigation into the Beaver Dam Creek sludge release.
The facts upon which Mr. Rhame will testify can be found in these materials. Moreover, as noted in our
April 14, 2011, letter to you concerning House of Raeford's request for an interview with Mr. Rhame,
both the State of North Carolina and House of Raeford will have the same opportunity to examine Mr.
Rhame under oath at the administrative hearing. Because House of Raeford already has access to Mr.
Rhame's documents and will be able to examine Mr. Rhame at the administrative hearing, additional
testimony at a prehearing deposition would be duplicative and an unnecessary diversion from Mr.
Rhame's official responsibilities. Nothing in your June 22, 2011, letter accompanying the subpoena
provides sufficient reason why the additional testimony House of Raeford is requesting in advance of
the hearing would clearly be in the interests of the EPA.
Mr. Rhame is the only OSC outposted in North Carolina and is responsible for responding to incidents
within a 150 mile radius of Raleigh, North Carolina, an area that includes portions of South Carolina.
This demanding assignment fully occupies his official time and if Mr. Rhame is not available to respond
to an incident. Region 4 will have to send another OSC from Atlanta. This could delay our ability to
respond by several hours. Any delay in responding to a spill or other environmental incident may be a
significant factor in our ability to minimize the environmental impact and the threat to human health and
the environment. Additionally, July through October is hurricane season. North Carolina and South
Carolina have both experienced devastating hurricanes in the past. As the only OSC outposted to North
Carolina, Mr. Rhame is the Agency's first responder to hurricanes within his assigned area. Since
Region 4 also includes other hurricane prone states {Florida, Georgia, Alabama and Mississippi), we
have to be very careful about how we allocate our resources to maintain our ability to respond to
multiple incidents at one time. Further, while the time for one deposition may not seem great, the
cumulative disruption to the EPA's mission would be significant if the EPA granted each request that
was sought. Further, when official government business is the subject of a deposition, it is common for
EPA counsel to attend as well. Thus, several federal employees' time is utilized for such depositions,
increasing the disruption to the Agency.
Accordingly, after weighing the EPA's strong interest in conserving and maximizing the use of
Mr. Rhame's time against the nature of the underlying litigation and nature of and need for his
additional deposition testimony, and after consulting with EPA Region 4 Superfund Director Franklin E.
Hill, I conclude that it is not clearly in the interests of the EPA to provide the testimony House of
Raeford subpoenaed on June 22, 2011.
Although this is an administrative proceeding, please note that even courts at the state level have no
constitutional authority to compel federal employees to provide testimony concerning their official
duties unless a federal statute confers such authority upon them. See Boron Oil Co. v. Downie, 873 F.2d
67 (4th Cir. 1989). I am not aware of any such federal statute that would apply here.
For the reasons stated above, I cannot conclude that the deposition testimony of Mr. Rhame would
clearly be in the interests of the EPA. Therefore, Mr. Rhame is not authorized to provide the additional
testimony House of Raeford seeks under the subpoena. If the subpoena is not withdrawn or determined
to be invalid before that time, Mr. Rhame will appear at the time and place stated in the subpoena,
produce a copy of the relevant EPA regulations, and respectfully refuse to provide any testimony or
produce any documents, pursuant to our regulations at 40 C.F.R. § 2.404(b).
3
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If you have any questions concerning this determination, please contact my Deputy Regional Counsel.
Nancy Tommelleo, at (404) 562-9571 or John Sheesley, Assistant Regional Counsel, at (404) 562-8139.
Sincerely,
Mary J. Wflkes \
Regional Coifissel and Director
Office of Environmental Accountability
Enclosures (2)
cc:
Seth Wood, United States Attorney's Office, EDNC
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UNJTED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
ATLANTA FEDERAL CENTER
ol FORSYTH STREET
ATLANTA. GEORGIA JQ303-8960
Henry W. Jones. Jr.
Jordan Price Wall Gray Jones & Carlton
1951 Clark Avenue
Raleigh, North Carolina 27605-0669
Re: Request tor Interview with EPA Employee
Dear Mr. Jones:
[ am writing in response to your January 31, 2011. letter to Mary Wilkes, in which you
requested the informal testimony of EPA On-Scene Coordinator Kenneth Rhame regarding his
investigation ot'a September 2009 sludge release into Beaver Dam Creek, Rose Hill, Duplin
County, North Carolina. Your letter also stated that you wished for it to serve as a Freedom of
Information Act (FOLA> request for all documents related to Mr. Rhame's investigation of that
release. We understand that your client. House of Ractord Farms, Inc.. has requested a state
administrative hearing regarding penalties assessed against your client by the State of North
Carolina in connection with that release and that a hearing has been set to begin on May 23,
2011, in the North Carolina Office of Administrative Hearings in Raleigh, North Carolina. For
the reasons noted below. EPA respecttully declines your request tor an interview.
EPA has a regulatory procedure tor requests for formal testimony in connection with
litigation to which we are not a party. However, we understand your request to be one for
informal testimony, or an interview, and therefore, that procedure does not apply here.
Nonetheless, as a matter of policy and practice, EPA generally does not make employees
available for interviews with counsel in connection with litigation to which the United States is
not a party. This is due to EPA's concern about the diversion of its staff from their official
duties, a concern which is well founded in light of the agency's limited resources. You have
requested to interview Mr. Rhame, who is tasked with responding to environmental incidents
throughout North Carolina. Based on Mr. Rhame's many responsibilities, his official time is
heavily encumbered. To divert his time to prepare for and provide an interview in connection
with a legal matter that does not involve the United States would impose an undue burden on Mr.
Rhame and EPA.
Most of EPA's work deals with matters which may, and commonly do, give rise to
disputes between other parties. Those parties frequently request to speak with EPA employees in
the course of resolving their disputes. While the time for one interview with Mr. Rhame may not
seem great, the cumulative disruption to EPA's mission would be significant if EPA employees
were interviewed concerning others' disputes every time such interviews are sought. Further,
when official government business is the subject of an interview, it is common for EPA counsel
to attend as well. Thus, several federal employees' time is utilized for such interviews,
increasing the disruption to the agency.
Internet Address (URL) • h(ip;//www eoa gov
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For these reasons, EPA respectfully declines your request tor an interview with Mr.
Rhame. If you wish to seek Mr. Rhame's formal testimony in connection with the upcoming
state administrative hearing, you may submit a written request for his testimony under the
procedure explained at 40 C.F.R. Part 2, Subpart C.
EPA received a request from the State of North Carolina for Mr. Rhame's testimony
pursuant to 40 C.F.R. Part 2. Subpart C. Under that regulatory procedure. EPA has granted the
State's request, and Mr. Rhame may testily as a fact witness at the hearing. Should the State call
Mr. Rhame to testily, you will have an opportunity to cross-examine him at that time.
Your letter has been treated as a request for documents under F01A. Your FOIA request
was activated on February 16, 2011, and was assigned the following number: 04-FO1-00304-11.
Our records indicate that Urshula Swann of the Region 4 FOIA Office handled your request and
sent a disk of responsive documents to you on March 1, 2011. In her cover letter. Ms. Swann
stated that the Office of Environmental Accountability would address the remainder of your
FOIA request. To conclude EPA's response to your request, 1 have enclosed an additional set of
responsive documents with this letter.
Sincerely,
Deputy Regional Counsel
Enclosures (4)
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
ATLANTA FEDERAL CENTER
•31 FORSYTH STREET
ATLANTA. GEORGIA 30303 8960
FEB 2 5 2011
Anita. LeVeaux
Assistant Attorney General
North Carolina Department of Justice
Environmental Division
Post Office Box 629
Raleigh, North Carolina 27602-0629
Re: House of Raeford Farms, Inc. v. North Carolina Department of Environment and
Natural Resources. Division of Water Quality, 10 EHR 5508: Contested Hearing
Concerning Case No. DV-2009-0046
Dear Ms. LeVeaux:
The purpose of this letter is to respond to your request on behalf of the State of North
Carolina for testimony in the above-captioned matter. You have indicated that you would like
Kenneth Rharae of the United States Environmental Protection Agency (EPA) to provide
testimony on behalf of the State of North Carolina deemed by you lo be essencial for defense of
ihe Assessment of Civil Penalty issued to House of Raeford Farms, Inc. by the North Carolina
Department of Environment and Natural Resources, Division of Water Quality, on August 10,
2010. Specifically, Mr. Rhame would serve as a fact witness and provide information regarding
liis investigation of a sludge release into Beaver Dam Creek in Rose Hill, Duplin County, North
Carolina, from September 14 to September 16, 2009. You indicated that Mr. Rhame would need
to provide this testimony at an administrative hearing in Duplin County, North Carolina, or
Wilmington, North Carolina, sometime in April or May 2011.
EPA regulations at 40 C.F.R. Part 2, Subpart C, contain restrictions on EPA employees
testifying regarding official matters in any proceeding in which the United States Government is
not a party. The purpose of the 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
tor approving testimony or production of documents when clearly in the
interests of EPA.
At the request of other Federal agencies or. where it is in the interests of EPA, at the
request of State or local governments, EPA employees may provide voluntary testimony, with
approval of the Regional Administrator. 40 C.F.R. § 2.402(a). The concern surrounding the
"interests" of EPA is extremely important to EPA because most EPA studies, inspections.
40 C.F.R. § 2.401(c).
Internet Addres* (URL] » nttp://*ww.apa.90V
FlucyemWI •cynabl*. Pnnwd wuh V«grtaul» Oil Basad Into on Racy dad Paw (Mhimim 30V. Poslconsumen
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regulatory actions and similar activities deal with matters which may, and frequently do, give
rise to private and State litigation. Although providing a witness for a tew hours in a particular
matter might not significantly impede our mission, the cumulative effect of such interruptions
would be very serious. This concern is the basis for our "interests of EPA" standard for
approving EPA employees' testimony.
Under the circumstances of this case, I have determined that allowing Mr. Rhame to
furnish the testimony you require, in response to your request, would be in the interests of EPA.
I have concluded that the production of Mr. Rhame's voluntary testimony would contribute to
EPA's mission and would not constitute an improper diversion of EPA resources.
As a fact witness, Mr. Rhame will limit his testimony to his knowledge of the sludge
release that he observed in Beaver Dam Creek, and he will not offer an opinion or conclusion as
to the origin of that release.
If you have any questions regarding this letter, please contact John P. Sheesley, Assistant
Regional Counsel, at (404) 562-8139.
Sincerely.
Regional Administrator
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
ATLANTA FEDERAL CENTER
61 FORSYTH STREET
ATLANTA, GEORGIA 30303-8960
Atf M[
Via Electronic Mail and Federal Express Mail
Rebecca Riley, Esq.
Natural Resources Defense Council
2 N. Riverside Plaza, Suite 2250
Chicago, Illinois 60606
Re: NRDC, et al. v. County of Dickson, Tennessee et al.
Civil Action No. 3:08-cv-00229 (M.D. Tenn.)
Request for EPA Testimony and Subpoena for Deposition Testimony of
Franklin E. Hill
Dear Ms. Riley:
The purpose of this letter is to respond to both the voluntary request for testimony
and the subpoena of the Natural Resources Defense Council (NRDC), Beatrice Holt, and
Sheila Holt-Orsted to depose Franklin E. Hill, United States Environmental Protection
Agency (EPA), Region 4 Superfund Director or another EPA staff member with
appropriate knowledge, in connection with the above-referenced litigation. More
specifically, this responds to your June 11,2010 letter to me, wherein you first requested
the voluntary deposition testimony, and to your subsequent subpoena delivered to EPA
Region 4 on July 1, 2010 for the deposition testimony of Mr. Hill on July 9, 2010.
According to your initial letter, your follow-up letter to Ms. Heath on June 28,2010, and
the subpoena, the NRDC and other plaintiffs seek testimony in a private lawsuit, to which
EPA is not a party, related to the Dickson County Landfill (DCL) in Dickson, Tennessee.
Although the subpoena does not state with any specificity the nature of the
testimony sought, you indicated in your June 11 and June 28,2010 letters that the
plaintiffs are seeking a "more detailed explanation of the basis for and reasoning behind
statements" made in two letters from EPA which you believe could relate to a central
legal issue in the case -"whether past and/or present waste disposal management at the
"Dickson County Landfill may present an imminent and substantial endangerment to
health or the environment under 42 U.S.C. § 6972(aXl)(B)." In the first EPA letter you
identified, dated October 28,2009, EPA Region 4 Superfund Division Director, Franklin
E. Hill, stated that, "EPA believes that there are currently no unacceptable human health
exposures related to the DCL.n In the second letter, which Acting Regional
Administrator A. Stanley Meiburg sent to Sheila Holt-Orsted (a plaintiff in this litigation)
on January 11,2010, he said, "EPA believes that there are no ongoing unacceptable
human health impacts associated with exposure to contaminants released from the DCL."
Internet Address (URL) • http://www.epa.gov
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You explained in your June 1 l^ and June 28th letters that a deposition of Mr. Hill would
seek a "more detailed explanation" of the basis for and reasoning behind these particular
statements.
Federal regulations govern EPA's response to both requests for voluntary
testimony and subpoenas for testimony in litigation where the United States Government
is not a party. Pursuant to 40 CFR Part 2, Subpart C, EPA employees are prohibited from
testifying about official matters, either voluntarily or in response to subpoenas, in any
proceeding in which the United States Government is not a party, unless authorized by
the General Counsel or his designee to do so. 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 or production of
documents when clearly in the interests of EPA. 40 CFR § 2.401(c). Given these
purposes, approval to testify is only granted where it is determined that providing such
testimony would be clearly in the interests of EPA. 40 CFR. §§ 2.401 through 2.405. As
Regional Counsel for Region 4,1 am the General Counsel's designee who is authorized
to make such determinations.
Determining whether requested or subpoenaed testimony is "clearly in the
interests of EPA" is necessarily fact-based. In such a fact-based determination, the nature
of the underlying litigation and the nature of the testimony sought must be weighed
against the purposes of the regulations and, here in particular, against the Agency's
strong interest in maintaining control of its workforce and in maximizing the use of its
limited resources. This is especially true for EPA Region 4, which generates many
documents and responsive correspondence that find their way into private litigation.
Because of the fact-based nature of the "clearly in the interests of EPA" inquiry, the
following background information is necessary and informs my ultimate determination.
Background Information
The DCL was originally opened by the City of Dickson in 1968 as a city dump.
In 1972, the City entered into an arrangement with Dickson County for the joint use and
operation of a sanitary landfill. The State of Tennessee Division of Solid Waste
Management permitted the landfill in 1972 as a solid waste disposal facility. Under the
authority of the Solid Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act (RCRA), 42 U.S.C. §§ 6901-6992k, EPA developed federal regulations
establishing minimum criteria for the siting and operation of such facilities, with the
oversight of these facilities under the authority of approved state government programs.
In this case, the State of Tennessee received full approval from EPA for its municipal
solid waste landfill permitting program and is fully responsible for both implementing
and funding the program, which includes overseeing ongoing operations and any
response activities.
EPA's involvement with the DCL began in 1991, when EPA conducted a site
investigation. Based on the results of the investigation, the Agency concluded that the
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landfill was not eligible for listing on the National Priorities List (NPL). EPA reassessed
the DCL in 2001 in response to concerns about contaminated drinking water and a
reported cluster of birth defect data. Between 2002 and 2004, EPA tasked a contractor to
perform a review and collect all of the available studies and environmental investigations
performed at the DCL. In October 2001, the Tennessee Department of Environment and
Conservation (TDEC) issued a Commissioner's Order to Dickson County, requiring it to
prepare and implement an Environmental Assessment Plan and Remediation Plan to
characterize and then address any groundwater contamination. Because TDEC was
overseeing the cleanup pursuant to its 2001 Commissioner's Order, EPA provided the
contractor's report to TDEC and Dickson County to help inform their remediation efforts.
Because the landfill was being actively regulated by TDEC and managed by Dickson
County, EPA designated the landfill as being subject to "Other Cleanup Activity" (OCA)
in 2004. OCA is a designation given to document investigation and cleanup work at sites
where work is being conducted by non-EPA parties without EPA enforcement or
oversight The OCA suspends EPA site assessment activities in favor of a non-EPA
party (typically a state) taking on an investigation and cleanup of the site. Since the 2004
OCA for the DCL, EPA has not conducted any additional response activities at the
landfill.
In September and October of 2009, EPA received inquiries on the DCL from two
citizens, one of which is a plaintiff to the underlying private party litigation. In response
to those inquiries, which raised environmental and health concerns at the DCL, EPA
prepared the two letters (dated October 28,2009 and January 11,2009) about which you
now seek EPA testimony. In preparing these response letters, and since EPA had not
conducted any activities at the DCL for a number of years, EPA gathered information
from the State and from Dickson County regarding the current status of ongoing response
activities at the DCL. In EPA's response letters, and after reiterating the background
information set out above, EPA explained that, according to the information it had
obtained from the State and Dickson County, Dickson County (as required and approved
by TDEC) has been implementing components of a remedy at the DCL and conducting
site characterization in a phased approach. The remedy includes landfill caps, leachate
collection, alternate water supply, including water line extension projects, and
institutional controls to prohibit new wells or use of groundwater. EPA further noted in
its response letters that the County water line had been extended 4.2 miles to all
residences with confirmed well contamination, and that the County had adopted a
resolution in 2007 which prohibits the drilling of water wells or the use of springs within
identified environmental risk areas. Finally, EPA stated that the County continues to
monitor groundwater at the DCL and select nearby wells. Based on this information,
EPA stated in one response letter, that it "believes that there are currently no
unacceptable human health exposures related to the DCL" and in the other response letter
that EPA "believes that there are no ongoing unacceptable human health impacts
associated with exposure to contaminants released from the DCL."
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"Clearly in the interests of EPA" Analysis
A review of the full content of EPA's October 28,2009 and January 11,2010
response letters, much of which is reiterated verbatim above, reveals that EPA provided a
detailed explanation of the basis and reasoning behind its beliefs regarding ongoing
human health impacts associated with exposure to contaminants released from the DCL.
These bases and EPA's reasoning are clearly laid out in the two response letters, which
are attached hereto. Because of this, the letters speak for themselves and provide the
exact information for which you seek testimony ("to explore the basis for these two
statements, including EPA's knowledge of the contamination and of actions taken to
respond to that contamination." Letter from Rebecca Riley, NRDC, to EPA Region 4,
dated June 11, 2010). While your June 28,2010 testimony request letter clarifies that
you seek from Mr. Hill or his staff "a more detailed explanation of the basis for and
reasoning behind" the two statements noted above (Emphasis added. See Letter from
Rebecca Riley, NRDC, to Melissa Heath EPA Region 4, dated June 28, 2010), you do
not explain what about the previous detailed explanations are insufficient and what "more
detail" you are looking for in additional testimony.
Further, in its two response letters of October 28, 2009 and January 11,2010,
EPA clearly explained that in responding to the citizen inquiries, it was relying entirely
on information provided by the State and the County, since the State was the lead agency
at the DCL and EPA activities at the landfill had ended in 2004 when it made the OCA
designation. Given this, it is difficult to identify (and again you have not specified) what
"more detailed" explanation may be available to give by EPA considering that EPA's
response letters were based only on State and County information. Also, to the extent
you may be seeking testimony, not to provide a more detailed explanation, but to
challenge the validity of the underlying State or County information, it would seem that
there is ample opportunity for the plaintiffs to explore such a challenge with the State or
the County since they are defendants to the underlying litigation.
As described above, the nature of the underlying litigation (a private party
litigation against the State and County where the State is the responsible agency for
ongoing activities and remedies at the DCL) and the nature of the testimony
requested/subpoenaed from Mr. Hill or his staff (the provision of a "more detailed
explanation" when a detailed explanation had already been provided in a matter where
EPA has not been active for a number of years and has relied only on State and County
documents), must be weighed against EPA's strong interest in maintaining control over
its workforce and conserving and maximizing the use of its limited resources, which
includes personnel and their time. Here in Region 4, Mr. Hill is a senior agency official
who supervises more than 19S employees working on many matters dealing with
hazardous substances, pollutants, and contaminants across the eight-state Region. He and
his staff are hard-pressed to meet their many responsibilities on a daily basis and this fact
weighs heavily against providing his (or their) testimony given the nature of the
testimony requested in this instance. This weight is even heavier given Mr. Hill's (and
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his staffs) significant additional duties in leading EPA Region 4's on-going efforts to
respond to the Gulf of Mexico oil spill crisis.1
After weighing EPA Region 4's strong interests in conserving and maximizing
the use of Mr. Hill and his staff against the nature of the underlying litigation and the
nature of the requested/subpoenaed testimony in this instance, and after consulting with
the Region's Acting Regional Administrator, I find that it is not clearly in EPA's interests
to provide the testimony you requested/subpoenaed on June 11,2010 and July 1, 2010.
Because of this determination, Mr. Hill will not be providing the testimony you seek
under the either voluntary request or subpoena, however, pursuant to our regulations at
40 CFR § 2.404(b), he will appear at the stated time and place in the subpoena, produce a
copy of the relevant EPA regulations, and respectfully refuse to provide any testimony or
produce any documents.
Finally, while not required, EPA will treat the subpoena as a Freedom of
Information Act (FOIA) request for all documents that formed the basis of EPA's two
statements in its response letters of October 28,2009 and January 11,2010, pursuant to
the FOIA.2 Toward that end, I am enclosing one such responsive document from the
County's contractor, ENSAFE, dated September 28,2009. I am also returning the
witness fee check submitted with the subpoena.
If you have any questions concerning this determination, please contact my
Deputy Regional Counsel, Nancy Tommelleo, at 404-562-9571 or Melissa Heath
Associate Regional Counsel, at 404-562-8381.
Sincerely,
Mary J. Wilkes
Regional Counsel and Director
Office of Environmental Accountability
1 NRDC has not specifically requested the testimony of A. Stanley Meiburg, Acting
Regional Administrator for EPA Region 4 and signatory on EPA's January 11, 2010
response letter at issue in this testimony request/subpoenaed determination. However, I
note that this determination covers Mr. Meiburg as well as Mr. Hill and his staff for the
same reasons as set out herein.
2 I understand that NRDC has previously submitted several FOIAs to EPA Region 4
regarding the DCL, the last one being submitted in 2008. In treating the current
subpoena as a new FOIA request, EPA will provide all responsive and releasable
documents that came into EPA's possession post-2008 and therefore not otherwise
provided to NRDC in EPA's previous FOIA responses.
-5-
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Attachments
1. Letter from Franklin E. Hill, dated October 28,2009.
2. Letter from A. Stanley Meiburg, dated January 11,2010.
3. ENSAFE Contractor Report, dated September 28,2009.
4. Witness Fee Check.
cc: A. Stanley Meiburg
Acting Regional Administrator
Franklin A. Hill, Director
Supeifund Division
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
SAM NUNN ATLANTA FEDERAL CENTER
61 FORSYTH STREET, S.W.
ATLANTA, GEORGIA 30303
October 28,2009
Pamela Smith.
2317 McEvan
Saginaw, Michigan 48602
Dear Pamela Smith:
Thank you for your September 8,2009, letter to Lisa Jackson, Administrator of
the U.S. Environmental Protection Agency (EPA), concerning the Dickson County
Landfill (DCL). Your letter was forwarded to the EPA Region 4 office in Atlanta^
Georgia, for response.
Your letter urges EPA to "close down and clean up" the Dickson County Landfill,
and to fully implement Environmental Justice Executive Order 12898.
By way of background, the Dickson County Landfill was originally opened by the
City of Dickson in 1968 as a city dump. In 1972, the City of Dickson entered into an
agreement , with Dickson County for the joint use and operation of a sanitary landfill. The
State of Tennessee Division of Solid Waste Management permitted the landfill in 1972 as.
a solid waste disposal facility. For a period of several years, the landfill accepted,
industrial wastes; some of which was contaminated with solvents; including
trichloroethylene (TCE).
In general, the management of municipal solid waste landfills (MSWLFs) is under
the State's authority. EPA developed federal regulations establishing minimum criteria
for the siting and operation of MSWLFs, but approved states are fully responsible for
both implementing and funding their solid waste management programs. The State of
Tennessee has received full approval from EPA for its MSWLF permitting program:
Not only does the State of Tennessee oversee the ongoing operations at DCL, but
the State is also overseeing response activities at the landfill. On October IS, 2001, the
Tennessee Department of Environment and Conservation (TDEC) issued a
Commissioner's Order to Dickson County requiring that the County: (1) implement
interim remedial measures and perform post-closure care activities at the landfill; (2)
prepare and implement an Environmental Assessment Plan to characterize the extent of
soil and groundwater contamination from the landfill; and (3) prepare and implement a
Remediation Plan to remediate groundwater contamination and to ensure the proper
closure and continuing maintenance of the landfill.
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EPA has gathered the following information from the State and Dickson County
regarding the current status of ongoing response activities at the DCL. Dickson
County,as required and approved by TDEC, has been implementing components of a
remedy and conducting site characterization in a phased approach. The remedy
implemented by Dickson County has included landfill caps, leachate collection systems,
alternate water supplies, including water line construction projects, and implementation
of institutional controls. Both the Dickson County MSWLF and the old City Dump have
had geocomposite cover systems installed, along with passive gas and leachate collection
systems. All residences in areas with confirmed contamination are now connected to the
public water supply. Approximately 4.2 miles of water main have been constructed to
complete these connections. In order to further protect residents from possible *
groundwater contamination, the Dickson County Commission adopted the "Water Well
and Spring Regulation" (Resolution #12007-1) in January 2007, which prohibits the
drilling of water wells or the use of springs within identified environmental risk areas.
Finally, the County continues to implement a groundwater monitoring and assessment
program at the landfill and within the identified risk area.
EPA was also involved with the DCL. In 1991, EPA investigated DCL for its
National Priorities List (NPL) potential and, based on that investigation* issued a "No
Further Remedial Action Planned" (NFRAP) designation. In 2001, based on concerns
regarding contaminated groundwater and clusters of birth defects, EPA reevaluated the
landfill. Between 2002 and 2004; EPA tasked acontractor to perform a review and'
collect all of the available studies and environmental investigations performed at DCL.
Because TDEC was overseeing the cleanup pursuant to its 2001 Commissioner's Order,
EPA provided the report to TDEC and Dickson County to help inform their remediation
efforts. Because the landfill was being actively regulated by TDEC and managed by
Dickson County, EPA designated the landfill as being subject to"Other Cleanup
Activity" (OCA). OCA is a designation given to document investigation and cleanup
work at sites where work is being conducted by non-EPA parties without EPA
enforcement or oversight The OCA action suspends EPA site assessment activities in
favor of a non-EPA party (typically a state) taking on an investigation and cleanup of the
site.
Based upon currently available information* EPA believes that there are currently
no unacceptable human health exposures related to the DCL. Dickson County continues
to perform work at the landfill pursuant to the TDEC Commissioner's Order. EPA's
Superfund program does not currently have any plans for further evaluation or action at
the DCL.
With respect to your concern regarding implementation of Environmental Justice
Executive Order 12898, EPA established the Office of Environmental Justice in 1992.
This office serves as lead on the Interagency Working Group established pursuant to
Executive Order 12898, and also serves to integrate environmental justice into EPA's
programs, policies, and activities. Additional information regarding EPA's
2
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environmental justice programs and policies can be found at
http://www.epa.gOv/compliance/resources/faQs/ei/index.html#taQ 1.
We appreciate your desire to protect and preserve the environment and hope you
find this information helpful. If you have further questions, please contact Beth Walden
at 404/562-8814.
Sincerely,
I C f
"Franklin E. Hill
Superfund Division Director
3
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^t08%
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
ATLANTA FEDERAL CENTER
61 FORSYTH STREET
ATLANTA. GEORGIA 30303-6960
JAN 1 1 2010
Ms. Sheila Holt-Orsted
340 Eno Road
Dickson, Tennessee 3705S
Dear Ms. Holt-Orsted:
This letter follows up on concerns raised at the meeting held at the U.S. Environmental
Protection Agency (EPA), Region 4 office, on October 27,2009, in Atlanta, Georgia. Thank you
for attending the meeting and submitting a written statement
Region 4 appreciates your raising these environmental justice concerns to us.
Administrator Lisa Jackson has embraced Environmental Justice as a priority for EPA, and as
one of the ways to expand the conversation about protecting public health and the environment
Our goal is for all Americans, regardless of race, color, national origin or income, to benefit from
clean, healthy, livable communities. It is hard work and we want to move forward with you to
achieve these results. For Region 4, this means integrating Environmental Justice into our
regional programs, policies, and activities and achieving measurable benefits to the environment
and public health far our citizens. EPA Region 4 recognizes the burden that pollution places on
vulnerable populations, including children, the elderly* the poor, and communities of color.
Your statement concerns health problems your family has experienced while living near
the Dickson County Landfill (DCL) located in Dickson, Tennessee, and contamination found in
your family's drinking water. Let me start by saying that I truly appreciate your heartfelt
comments and am sorry to hear about the problems your family has faced. As you know, DCL is
a solid waste disposal facility operated by Dickson County. The oversight of solid waste
disposal facilities is under the authority of approved state government programs; in this case the
Tennessee Department of Environment and Conservation (TDEC). EPA does not retain separate
authority for this program, but we are in regular communications with our TDEC colleagues
regarding program implementation.
EPA has also been involved with investigations of the facility pursuant to its authority
under the Comprehensive Environmental Response, Compensation, and liability Act
(CERCLA), commonly known as Supeifund. In 1991, as part of an EPA investigation of the
DCL, EPA sampled your family's well. This was the only residential well that EPA sampled as
part of our investigation; Results from the January 1991 sampling event indicated the presence
of TCE at 26 ug/1 (micrograms per liter). Because 26 ug/1 exceeded EPA's Maximum
Contaminant Level (MCL) of S ug/1 for TCE in drinking water, EPA resampled your father's,
Mr. Harry Holt's, well twice in July 1991. Sampling results detected TCE levels of 3.7 ug/1 and
3.9 ug/1, both of which were below EPA's MCL. After completing its review of the data in
December 1991, EPA sent your father a letter stating that "there were no constituents detected
Internet Address (URL)* http://www.apa.gov
Reeyctadfftecydabl* • Prtntnt wtft VagataMs OB Band Into on RacydMl Papar (Mhbnum 30% Postccxuumw)
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which exceed EPA's National Primary Drinking Water regulations or other health based
criterion," and that "use of your well water should not result in any adverse health effects.1' The
letter also explained that in the first sample result, TCE was detected at 26 ug/l. The letter
accurately explained that the July L991 sample results were below MCLs.
After EPA provided a copy of the December 1991 letter to the State of Tennessee, TDEC
contacted EPA to express concerns regarding the conclusions of the letter. TDEC's concern was.
based on the karst geology of the area which they believed could result in considerable seasonal
variations for contaminants and not be a true indicator of what contamination might appear in the
well in the future. Both EPA and TDEC files indicate that EPA contacted the State on January 6,
1992, to discuss this concern. Notes of the phone conversation indicate that EPA agreed with the
State and recommended your father's well continue to be sampled. However, EPA informed
TDEC that EPA had completed its field investigation and would not be able to perform
additional sampling.
Your statement also refers to other letters regarding well use. I believe the letters to
which you have referred were written in 1994 and sent by the State to two users of Sullivan
Spring. My understanding is that these letters were sent as a result of the County's sampling
efforts to establish an upgradent water quality point for DCL. The Dickson County sampled
Sullivan Spring three times in 1994 and in each event, TCE and DCE results were above MCLs.
The two residents were notified that Sullivan Spring should not be used and Dickson County
provided alternate water.
From a review of the State files, it appears that your family's well was sampled again in
October 2000. According to the State filed, TCE was detected in yourfather's well and other
organic contamination was detected in Ms. Lavenia Holt's well. Both residences were provided
with City water in October 2000.
On October 15,2001, TDEC issued a Commissioner's Order to Dickson County
requiring that the County: (1) implement interim remedial measures and perform post-closure
care activities at the landfill; (2) prepare and implement an Environmental Assessment Plan to
characterize the extent of soil and groundwater contamination from the landfill; and (3) prepare
and implement a Remediation Plan to remediate groundwater contamination and to ensure the
proper closure and continuing maintenance of the landfill.
rt is my understanding that Dickson County, as required and approved by TDEC, has
been implementing components of a remedy and conducting site characterization in a phased
approach. The remedy implemented by Dickson County has included landfill caps, leachate
collection systems, alternate water supplies, including water line construction projects, and
implementation of institutional controls. Both the Dickson County Municipal Solid Waste
Landfill and the old City Dump have had geocomposite cover systems installed, along with
passive gas and leachate collection systems. All residences in areas with confirmed
contamination are now connected to the public water supply. Approximately 4.2 miles of water
main have been constructed to complete these connections. In order to further protect residents
from possible groundwater contamination, the Dickson County Commission adopted the water
well and spring regulations in 2007, which prohibits the drilling of water wells or the use of
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springs within identified environmental risk areas. Finally, Dickson County continues to
implement a groundwater monitoring and assessment program at the landfill and within the
identified risk area
Based upon currently available information, EPA believes that there are no ongoing
unacceptable human health impacts associated with exposure to contaminants released from the
DCL. Dickson County continues to perform work at the landfill pursuant to the TDEC
Commissioner's Order.
For further information on DCL, please do not hesitate to contact Beth Walden, our
Region 4 Remedial Project Manager at (404) 562-8814 or via email at Walden.Beth@epa.gov.
To explore other thoughts and ideas on how we can enhance our environmental justice efforts,
please contact Cynthia Peurifoy, our Region 4 Environmental Justice Coordinator at (404) 562-
9649 or via email at Peurifov.Cvnthia@ena:gov.
1 appreciate your desire to protect and preserve the environment and hope you find this
information, helpful.
Sincerelv;
A. Stanley Meiburg
Acting Regional Administrator
cc: Paul Sloan, TDEC
3
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mSAFE
a global professional services company
creative thinking, custom solutions.
220 Athens Way, Suite 410 \ Nashville, Tennessee 37228 | Telephone 615-255-9300 | Facsimile 615-255-9345 | Ytvtw.ensafe.com
September 28, 2009
Mrs. Beth Walden via email: walden.beth@epamail.epa.gov
Remedial Project Manager
USEPA Region 4
Atlanta Federal Center
61 Forsyth Street
Atlanta, Georgia 30303-3104
Re: Dickson County Landfill
Dickson County, Tennessee
Dear Mrs. Walden:
Dickson County, as required and approved by the Division, has been implementing components
of presumptive remedy while conducting site characterization in a phased approach.
Presumptive remedies implemented associated with the Dickson County landfill have included
landfill caps, leachate collection systems, alternate water supplies including water line
construction projects, and development of institutional controls, as described below.
a. Landfill Caps ant1 Leachate Collection — As required by the Division, Gresham Smith
and Partners (GS&P) on behalf of Dickson County submitted a Remedial Work Plan Design dated
March 2001. GS&P indicated that the design for the remediation of the Dickson County Landfill
was selected based upon a streamlined Feasibility Study. The Division approved the
Remedial Work Plan as an interim remedial measure — which included the installation and
enhancement of the leachate collection systems and Geocompoate Clay Liner (GCL) cover
system with passive gas venting.
Alabama | Arkansas | California | Connecticut | Kentucky | Mississippi | North Carolina | Ohio | South Carolina | Tennessee | Texas | Virginia | China
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Mrs. Beth Walden
September 28, 2009
Page 2
The former Dickson County municipal solid waste (MSW) landfill and the former City dump have
both had GCL cover systems (landfill cap) with passive landfill gas systems installed. The
cover system and gas vents were installed on the former permitted MSW Class I facility in
approximately 1997 and approximately 2002 at the former City dump. The GCL and vent system
are similar in design to many of the systems installed at the more than 6,000 MSW landfills
located across the United States.
The approved Remedial Work Plan Design also included the installation and enhancement
of the leach ate collection systems. The collection and monitoring system includes a series
of vertical wells and lateral leachate collection lines. On May 24, 2001, substantial completion
of the leachate collection system for the facility was completed. Dickson County Landfill
submitted an application for permit that covers the discharge of landfill leachate to the
Water Authority of Dickson County (WADC), Publidy Owned Treatment Works (POTW). The
original discharge permit became effective on September 20, 2001. The discharge of leachate
from the landfill collection system decreased significantly after the landfill cap was installed on
the former City dump in approximately 2003.
b. Water Line Extension/Alternative Water Supply — Dickson County worked with
the two area water auttiorities to obtain necessary funding and established plans for providing
access to potable water in areas of identified contaminated water wells and springs. The
water line construction project was conducted in two parts represented by the two water utilities
involved, and all work has been completed. Figure 1 identifies the location of existing
public water lines and the extensions that have been constructed. Public water is
distributed throughout the southern portion of Dickson County by two public water
systems, the Sylvia-Tennessee City-Pond Utility District (STCP) and the Water Authority of
Dickson County (WADC).
The length of the water main constructed associated with identified contaminants of concern
(COCs) was approximately 4.2 miles (22,360 linear feet). All work for both the STCP and WADC
has been completed and is in service, including new water lines on Eno Road from
Baker Cemetery Road to Springer Work Road; on all of Springer Work Road; and on
Furnace Hollow Road to Baker Cemetery Road. For the WADC segment of the project,
new water lines have been installed and are operating on Bruce Road and on West Piney Road
to the Piney River. In addition, the water line has been extended across the Piney River. The
line on Eno Road from Worley Furnace Road to Baker Cemetery Road is also constructed.
ENSAFB
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Mrs. Beth Walden
September 28, 2009
Page 3
All residences in the area that have had confirmed COC contamination are connected to
public water supply with either the STCP or WADC water system.
c. Institutional Controls — Dickson County implemented institutional controls designed
to control further use of groundwater in the affected area. The County developed and adopted
code restrictions that prohibit the drilling of water wells or the use of springs within identified
environmental risk areas. The regulations were presented to the Dickson County- Zoning Board,
Dickson County Commission, and advertised for public comment. A public hearing was held on
January 2 and on January 16, 2007, the Dickson County Commission adopted the "Water Well
and Spring Regulation" (Resolution #12007-1).
d. Groundwater Monitoring/Assessment — The County has continued to implement a
groundwater monitoring/assessment program at the landfill and within the identified risk area.
The groundwater monitoring program is performed to monitor for possible migration of the
dissolved-phase COCs. Specific monitoring well, water well, and spring sampling locations were
chosen based on general groundwater flow direction in the vicinity, fracture orientation
identified in previous investigations, construction/type of sampling points, accessibility, and
historical results.
The monitoring program includes analytical testing of select area water wells/springs and
developing/maintaining a database of current well/spring locations within the identified area.
The results obtained from the continued groundwater monitoring/assessment, with the
historical environmental data for the area, is used to evaluate ttie need for modifications to the
monitoring program. Monitoring reports are prepared and submitted to the Division
each quarter.
By: Shaun A. Winter
Senior Project Manager
Enclosure
cc: Robert Stone, Dickson County Mayor
Tim Potter, Reynolds, Potter, Ragan & Vandivort, PLC
Jim Lunn, Dickson County Solid Waste
Ashley Holt, TDEC-DSWM
Sincerely,
EnSafe Inc.
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Wfestiawc
1995 WL 33286 Page 1
1995 WL 33286 (Tenn.Dept.Env.Conserv.)
(Cit« mi 1995 WL 33286 (Tenn.D«pt.Bnv.Conavrr.))
Department of Environment and Conservation
State of Tennessee
*1 IN THE MATTER OF: DICKSON COUNTY, RESPONDENT
Division of Solid Waste Management
Case No. 94-0496
January 19, 1995
COMMISSIONER'S ORDER
PARTIES
I.
J.W. Luna is the Commissioner of the Tennessee Department of Environment and
Conservation, (hereinafter, referred to as "the Commissioner"). Wayne K. Scharber,
Assistant Commissioner of the Department of Environment and Conservation, has
received written delegation from the Commissioner to issue enforcement orders under
the Tennnssee environmental statutes.
II.
Dickson County (hereinafter, referred to as "the Respondent") is a political
subdivision of"lthe State of Tennessee. Service of process may be made upon Mr.
William D. Field, Dickson County Executive, P.O. Box 220, Courthouse Annex, Dickson,
Tennessee 37055.
JURISDICTION
III.
When the Commissioner finds that provisions of the Tennessiee Solid Waste Disposal
Act, (hereinafter the "Act"), T.C.A. Section 68-211-101 et seq. are not being
complied with, he is authorized by T.C.A. Section 68-211-112 to issue orders for
correction to the responsible person. Further, T.C.A. Section 68- 211-117 gives the
Commissioner the authority to assess damages and civil penalties against any person
who violates any provision of the above-mentioned Act and any civil penalties
against any person who violates any provision of the above-mentioned Act and any
rule, regulation, or standard adopted pursuant to said Act. Administrative rules
applicable to the operation and maintenance of a solid waste disposal facility are
contained at Chapter 1200-1-7 in the Official Compilation of the Rules and
Regulations of the State of Tennessee (hereinafter the "Rules").
IV.
The Respondent is a "person" within the meaning of T.C.A. Section 68-211-103.
FACTS
V.
The Respondent has a permit to operate a Class I solid waste disposal facility
(hereinafter, referred to as "the facility"). The permit number for this facility is
SNL 22-102-0065. The facility is located at 100 Virgil Bellar Drive, Dickson,
Tennessee. This facility was originally permitted in 1972. A permit for an extension
was granted in 1988. The permit was modified in 1990 to convert the facility to a
balefill.
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1995 WL 33286 (Tenn.DepC.Env.Conserv.)
(Cita ui 1995 WL 33286 (Tena.Dopt.Knv.Conserv.))
Page 2
VI.
The facility is subject to inspection by the Commissioner under the statutory
authority in the Act. Numerous inspections were made by personnel of the Division of
Solid Waste Management (hereinafter 'the Division") of the Tennessee Department of
Environment and Conservation. As more fully set forth in the allegations contained
in the numbered paragraphs below, violations of the Act and the administrative rules
promulgated pursuant to the Act were discovered. Pursuant to Division policy, the
Respondent was given notices of violations and a time schedule.for performing
remedial actions.
VII.
On December.17, 1993, an inspection of the facility was made by Mr. Mark McWhorter,
an employee of the Division. The inspection revealed the following conditions:
1.) numerous major and minor leachate seeps and flow on both the closed and
active portions of the facility;
*2 2.1 intermediate cover was not being applied every thirty (30) days as
required by the permit;
3.) water was being allowed to pool on the facility; and
4.) erosion on the slopes had exposed wastes.
On December 29, 1993, a Notice of violation (hereinafter, referred to as "NOV")
was issued to the Respondent requiring compliance by January 18, 1994. A copy of
this NOV is attached hereto as Exhibit 1 and incorporated herein by reference.
VIII.
On January 26, 1994, Mr. McWhorter conducted a follow-up inspection at the
facility. The inspection revealed continuing violations concerning leachate,
erosion, and failure to cover in accordance with permit requirements. A second NOV
was issued to the Respondent on February 1, 1994, which required compliance by
February 25, 1994. A copy of this NOV is attached hereto as Exhibit 2 and
incorporated herein by reference.
IX.
On February 23, 1994, Mr. McWhorter conducted another follow-up inspection, which
again revealed continuing and additional violations, including the following
conditions:
1.) numerous major and minor leachate seeps and flows were discovered;
2.) intermediate cover on the vertical face of the bales was not being maintained
in accordance with permit requirements; and
3.) erosion was widespread.
X.
As a result of the continuing violations, the Respondent's representative was
invited to a Compliance Review Meeting at the Nashville Field Office on March 14,
1994. Curing the course of the meeting the continuing operational deficiencies were
discussed and dates were set for compliance. On March 17, 1994, the Division sent a
letter to the Respondent which outlined the issues discussed and the compliance
dates set. A copy of this letter is attached hereto as Exhibit 3 and incorporated
herein by reference.
XI.
On March 31, 1994, Mr. McWhorter conducted an inspection at the facility. The
inspection revealed erosion, leachate, and intermediate cover repairs to be
incomplete. Inspections conducted on April 22, 1994 and May 23, 1994, again revealed
continuing violations.
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1995 WL 33286 (Tenn.Dept.Env.Conserv.)
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Page 3
XII.
On July 14, 1994, a show cause meeting was held with the Respondent's
representative to discuss the continuing violations. During the course of the
meeting, the Respondent's representative presented a leachate remediation plan for
the Division's approval. A copy of this plan is attached hereto as Exhibit 4 and
incorporated herein by reference. The plan has been approved by the Division and the
facility has begun remediation.
XIII.
On September 2, 1994, the Division received information from the Respondent that
ground water sampling analytical data indicates that the facility is adversely
impacting ground water quality at and around the site. The analytical data resulting
from sampling conducted on March 5, 1994 and June 25, 1994 indicated the presence of
organic contamination in a spring which is being used as a drinking water supply. An
NOV was issued to the Respondent on September 9, 1994, requesting the establishment
of an assessment monitoring program. A copy of this NOV is attached hereto as
Exhibit 5 and incorporated herein by reference.
XIV.
*3 As a result of the investigation of the Respondent'3 facility, necessitated by
the conditions described in paragraphs VII through XI, the Division has incurred
DAMAGES in the amount of FOUR HUNDRED FIFTY-ONE DOLLARS AND FIFTY-FIVE CENTS '
($451.55), representing costs of investigating the facility.
VIOLATIONS
XV.
By failing to comply with the conditions of its permit; by failing to operate in
compliance with the approved construction and operation plans for the facility; by
failing to maintain overall performance standards; by failing to control leachate
migration from the facility; and by allowing the facility to contaminate
groundwater,, the Respondent has failed to comply with Division Rule 1200-1-7-
.04(2)(a)3. This is a violation of T.C.A. Section 68-211-104(1) and Section 68-211-
104 (3).
T.C.A. Section,68-211-104(1) provides that:
It shall be unlawful to:
(1) Place or deposit any waste into the waters of the State except in a manner
approved by the department and the Tennessee stream pollution control board.
T.C.A. Section 68-211-104(3) provides that:
It shall be unlawful to:
(3) Construct, alter, or operate a solid waste processing or disposal facility
or site in violation of the rules, regulations, or orders of the Commissioner or in
such a manner as to create a public nuisance.
Division Rule 1200-1-7-.04(2)(a)3 states, in part, that:
The facility must be located, designed, constructed, operated, maintained,
closed, and cared for ... in such a manner as to minimize to the extent practicable
... the potential for releases of solid wastes, solid waste constituents, or other
potentially harmful materials to the environment except in a manner authorized by
State and local air pollution control, water pollution control, and/or waste
management control agencies.
XVI.
By failing to cover solid wastes with a satisfactory intermediate cover, the
Respondent has failed to comply with a condition of its permit and has failed, to
comply with Division Rules 1200-1-7-.04(6)(a)4, and 5. This is a violation of T.C.A.
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Page 4
Section 68-211-104(3) which is set out in paragraph XV.
Division Rule 1200-1-07.04(6)(a)4, and 5, state, in part, that-.
4. Except for chose completed portions to be finally closed (e.g., the final
lift), all surfaces which will be left exposed for a period of over thirty days
[e.g., initial and intermediate lifts) must be covered by an intermediate cover
. consisting of at least a one-foot layer of compacted soil or other material approved
by the Commissioner.
5. All initial and intermediate cover depths must be maintained until either
additional wastes are placed over the area or final cover is applied.
XVII.
By failing to provide adequate erosion control and by failing to provide adequate
grading and positive drainage to prevent pooling on the closed portions of the
facility, the Respondent has failed to comply with a condition of its permit and has
failed to comply with Division Rules 1200-1-7.04(8)(cl4., 5., 6., and 7. This is a
violation of T.C.A. Section 68-211-104(3) as stated in paragraph XV.
•4 Division Rules 1200-1-7.04(8)(c)4., 5., 6., and 7, state:
4. The final surface of the disposal facility or disposal facility parcel shall
be graded and;or provided with drainage facilities in a manner that:
(i) Minimizes precipitation run-on from adjacent areas onto the disposal
facility or disposal facility parcel
(ii) Minimize erosion of cover material (e.g. no steep slopes);
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1995 WL 33286 (Tenn.Dept.Env.Conserv.)
(Cits asi 1995 HI< 33286 (Taon.Dept.Bnv.Coaurr. ))
Page 5
1200-1-7-.04.
2. The Respondent shall immediately correct all leachate seeps occurring at the
facility.
3. The Respondent, within thirty (30) days of receipt of this Order, shall have
complied with all corrective actions set out in the Leachate Remediation Plan as
amended and approved by the Division.
4. The Respondent shall immediately institute an assessment monitoring program. If
the results of the assessment monitoring indicate that corrective measures are
necessary, the Respondent shall comply with all relevant requirements of the
Division Rules 1200-1-7-.04(7)(a)7. "Assessment of Corrective Measures,* 1200-1-7-
.04(7)(a)8. "Selection of a Remedy," and 1200-1- 7-.04(7)(a)9. "Implementation of
Corrective Action," within the required time frames set forth within the respective
Division Rules.
*5 5. The Respondent is hereby assessed DAMAGES in the amount of FOUR HUNDRED
FIFTY-ONE DOLLARS AND FIFTY-FIVE CENTS ($451.55) to be paid within thirty (30) days
of the receipt of this Order.
6. The Respondent is hereby assessed a CIVIL PENALTY in the amount of THIRTY-FOUR
THOUSAND TWO HUNDRED DOLLARS ($34,200.00), to be paid as follows:
A. SIX THOUSAND DOLLARS ($6,000.00) shall be paid to the State within thirty (30)
days of the issuance of this Order.
B. The remaining TWENTY-EIGHT THOUSAND TWO HUNDRED DOLLARS ($28,200.00) balance
shall be paid to the State WITHIN ONE HUNDRED TWENTY (120) DAYS of the issuance of
this ORDER. However, if the Division Director is satisfied that the Respondent has
timely- complied with items-1- through-4 abovey this portion of"the CIVIL" PENALTY may
be waived. The full TWENTY-EIGHT THOUSAND TWO HUNDRED DOLLARS ($28,200.00) shall
remain due and payable unless a written waiver is given to the Respondent by the
Director of the Division.
In issuing the foregoing ORDER, the Commissioner does not implicitly or expressly
waive any provisions of the Act or regulations promulgated thereunder. Compliance
with the provisions of this ORDER will be considered as a mitigating factor in
determining the need for future enforcement action(s).
Wayne K. Scharber
Assistant Commissioner
December 29, 1993
Jim Lunn, Director
Dickson County Balefill
100 Virgil Bellar Drive
Dickson, TN 37055
NOTICE OF VIOLATION--Dickson County Balefill SNL 22-102-0065
Dear Mr. Lunn:
The balefill inspection on December 17, 1993 showed the following violations:
—leachate observed at the site entering runoff; Many leachate seeps and flows at
locations noted on the inspection sheet must be repaired.
--unsatisfactory intermediate cover; Vertical face of bales must be covered at
least each 30 days with either soil or fresh bales.
—pooling of water; Pooled water on top of the fill must be eliminated.
Also noted was erosion which had exposed waste in the area noted on the inspection
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Page 6
sheet.
This is your Notice of Violation of Section 68-211-104(3) of Tennessee Code
Annotated which states it is unlawful to operate a disposal site in violation of the
Solid Waste Disposal Act and regulations adopted under authority of that Act.
Correction action must begin immediately and be completed by January 18, 1994. A
follow-up inspection will be made after that date to determine compliance. Call me
at 741-0654 to discuss this.
Sincerely,
Mark McWhorter
Division of Solid Waste Management
February 1, 1994
Jim Lunn, Director
Dickson County Salefill
100 Virgil Bellar Drive
Dickson, TN 37055
SECOND NOTICE OF VIOLATION--Dickson Co. Balefill SNL 22-102-0065
Dear Mr. Lunn:
The landfill inspection on January 26, 1994 showed the following violations:
--leachate observed at the site; Several leachate seeps and flows need repair
including one at che southwest corner of the older bales and several on top of the
older conventional landfill area.
*6 --unsatisfactory intermediate cover; The vertical face of all bales -.Tiust be
covered at least each 30 days with either soil or fresh bales.
--unsatisfactory stabilization of cover; Various small eroded areas need repair.
Substantial work has been done since the December, 1993 inspection but more is
necessary to bring the site up to standards.
This is. your Second Notice of Violation of Section 68-211-104(3) of Tennessee Code
Annotated which states it is unlawful to operate a disposal site in violation of the
Solid Waste Disposal Act and regulations adopted under authority of that Act.
Correction action must begin immediately and be completed by February 25, 1994. A
follow-up inspection will be made after that date to determine compliance. Call me
at 741-0654 to discuss this.
Sincerely,
Mark McWhorter
Division of Solid Waste Management
March 17, 1994
Jim Lunn, Director
Dickson County Balefill
100 Virgil Bellar Drive
Dickson, TN 37055
RE: Dickson County Balefill--SNL 22-102-0065
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Page 7
Dear Mr. Lunn:
This is to confirm the discussion during the compliance review meeting on March 14,
1994, attended by you, Doye Rowland, and myself. The issues included erosion
control, leachate control, and intermediate cover. The issues were addressed as
follows:
Erosion Control—Temporary repairs will be made by March 31, 1994 on the steep
slope on the east side of the extension area by applying soil from the top
elevation; more permanent repairs will be made at a later date, most likely in
conjunction with development of a proposed Class IV operation for the main
drainageway. Other eroded areas will be repaired by compacting soil in 6"-8" layers
and grading to' drain by March 31, 1994.
Leachate Control—The many leachate seeps and flows to the east of the main
drainageway will be repaired temporarily at each point of generation by the
application of well-compacted cover graded, to drain. More permanent repairs will be
made later, most likely in conjunction with development of the proposed Class IV
operation. These temporary repairs will be made by April 22, 1994. The other
leachate seeps in the extension area will be repaired by March 31, 1994.
Intermediate Cover--The vertical face of all bales exposed over 30 days will
receive a soil cover by March 31, 1994.
This compliance schedule is closely connected with development of the proposed
Class IV area in the main drainageway. If this proposal is not approved, the
schedule of compliance for repair of leachate releases and erosion will be re-
evaluated.
Thank you. for your concern and cooperation.
Sincerely,
Mark McWhorter
Dickson County Leachate Remediation Project
July 8, 1994
I. Description of Problem
The old closed-out Dickson County Landfill has settled in places causing water to
pond during rain events. The ponded water has percolated through the waste and
collected on the floor of the landfill. This leachate has leaked out at several
locations.
II. Description of Corrective Action to be Taken
•7 The following actions are to be taken to eliminate the problem:
1. AREA A:
Fill and vegetate all low places which currently pond water in the Area A as
shown on Drawing 1. Place clay in 6" layers and compact with a roller. The top
surface shall be at least 4" top soil adequate to support vegetation. Seed and
Straw. Estimated fill needed—350 CY.
2. AREA Bi-
Fill in the low places as needed until a continuous runoff slope has been
created. Compact with.roller in 6* layers until slope has been established. Place a
1 foot cap over this entire area followed by 4" of top soil. Compact clay cap with
roller in 6* layers. Follow with seed and straw. Estimated fill needed--10,900 CY
clay and 3300 CY top soil.
3. AREA C:
Fill in low areas which obviously would pond water. Follow with 4* of top
soil. Seed and straw. Estimated fill needed—500 CY.
4. LEACHATE COLLECTION WORK:
Install a leachate collection well as shown on Drawing 2. This shall include
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Page 8
excavating about 250 linear ft of ditch 36" wide with a trackhoe. See "L" shaped
area at the southern edge of the fill area as shown on Drawing 1. The following are-
details:
NO PERSON SHALL BE ALLOWED TO ENTER THE EXCAVATED TRENCH BECAUSE OF POSSIBLE
METHANE GAS BUILD-UP AND POSSIBLE TRENCH WALL FAILURE. IT IS THE RESPONSIBILITY OF
THE CONTRACTOR TO FULFILL THIS REQUIREMENT.
a. Excavate approximately 150 linear ft across the southern bottom waste
boundary: Depth of excavation shall be about 5 ft or to bottom of waste. A sump pump
must be available to pump liquid into an awaiting septic tank service tanker. The
volume of leachate expected is undetermined..Disposal will be to an offsite
treatment facility.
b. Excavate approximately 100 linear ft along the western portion near the main
drainage ditch. Depth of excavation will vary from about 5 to 15 ft in depth.
c. Once excavation has been completed, place the 20 mil HDPE Flexible Membrane
Line material as shown on Drawing 2. The purpose of this.liner is to cover the
bottom of the 36" wide excavation and the outer wall of the excavation which is away
from the deposited waste.
d. Place the previously assembled 16* Extraction well piping and the 6*
perforated piping which lies on top of 6" of' gravel into the excavation. This shall
be done by several persons holding and lowering the piping into place. The 16" pipe
shall be concreted in and provide with a flange and blank PVC cover plate bolted in
place.
e. Place rock over piping as shown in Drawing 2. Cover rock with FLM. Place clay
over rock and compact.
f. Reconstruct the final contour over the leachate collection system as it was
before construction started. Compacting and seeding/strawing is to be done.
g. Many details will require decisions to be made by the County Landfill Engineer
and the Contractor. The County Engineer will be available during much of
construction.
DRAWING 2
TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POIIVf IS NOT DISP^AYABLE
June 30, 1994
•8 Mr. William D. Field, County Executive
P.O. Box 220
Courthouse Annex
Dickson, TN 37055
Dear Mr. Field:
Through investigation by Division of Solid Waste Management personnel this Division
must allege that you have violated the Tennessee Solid Waste Disposal Act Section
68-211-104(3) which states:
"It shall be unlawful to construct, alter or operate a solid waste processing or
disposal facility or site in violation of the rules, regulations, or orders of the
Commissioner or in such a manner as to create a public nuisance."
Tennessee Code Annotated Section 68-211-112 authorizes the Commissioner or his
designee, prior to any enforcement action, to request the presence of an alleged
violator to show cause why enforcement action ought not to be taken by the
Department. Among the enforcement actions available to the Department is the
assessment of a FIVE THOUSAND DOLLAR ($5,000.00) PER DAY PENALTY for violation of
Tennessee Code Annotated Sections 68-211-101 et seq.
Therefore, we are requesting that you meet with us on July 14, 1994, at 10:00 a.m..
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1995 WL 33286 (Tenn.Dept.Env.Conserv.)
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and show cause why chis Division should not take enforcement action including the
assessment o£ an appropriate civil penalty. Our office is located on the fifth floor
of the L & C Tower, 401 Church Street, Nashville, Tennessee. You or your
representatives should bring all relevant information, reports, and documents
pertaining to the Dickson County Landfill# and should be prepared to discuss this
matter in detail with reasonable accuracy.
If there are any questions concerning this correspondence, please contact Teresa
Gearing at (615) 532-0814.
Sincerely,
Tom Tiesler, Director
August 18, 1994
Mr. Bob Gardner
112 Freda Lane
Burns, TN 37029
RE: Addendum to Dickson County Landfill Remediation Plan
Dear Mr. Gardner:
This letter will acknowledge find approve the addendum'to the remediation plan.
Specifically, you proposed to conventionally fill the waste excavated from the
landfill'under the-remedial plan.
If there are any questions, please contact me at (815) 99-9529.
Sincerely,
Doye Rowland
Field Office Manager
August 17, 1994
Mr. Doye Rowland
Nashville Environmental Field Office
3000 Morgan Road
Joelton, Tennessee 37080
RE: Addendum to Dickson Co Landfill Remediation Plan
Dear Mr. Rowland:
we propose to ?? Dickson County Remediation Plan to describe how waste from the
remediation work will be disposed of. All waste removed as a result of installing
the leachate collection system will be disposed of at the south end of the first
balefill area. This area has been used for loose (nonbaled) waste in the past. The
first balefill area is located just ?? of the conventional fill area. We proposed to
dispose of the waste immediately and ?? daily.
Please FAX your comments or approval as soon as possible.
Thank you for your assistance in this matter.
Sincerely,
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Page 10
Bob Gardner, P.E.
*9 Consultant for Dickson County
September 9, 1994
Mr. Jim Lunn
Dickson County Landfill
100 Virgil Bellar Drive
Dickson, Tennessee 37055
RE: Notice of Violation Dickson County SNL 22-102-0065
Dear Mr. Lunn:
Your ground water samplings and analysis report submitted to this office July 27,
1994, and confirmation sampling on September 2, 1994 indicate that the Dickson
County Landfill, SNL 22-102-0065, has violated the Division's Ground Water •
Protection Standard and the Maximum Contaminant Levels for three (3) parameters.
Specifically cis-1,2-Dichloroethene which was reported at 0.019 mg/1,
Trichloroethene at 0.083 mg/1, and 1,2-Dichloroethene at 0.019 mg/1 in the Sullivan
Spring.
Exceeding the Maximum Contaminant Level IMCL) for these parameters violaces the
Ground Water Protection Standard of the Regulations for Solid Waste Processing and
Disposal in .Tennessee, at Rule 1200-1-7-04(7)(a)(i>.
Since the Ground Water Protection Standard has boen violated, Dickson County must:
1) Establish an assessment monitoring program as provided at Rule 1200-1-7-
04 |7> (a)6.
2) For all Appendix II constituents, conduct and continue quarterly sampling and
analysis for all constituents with a statistically -significant increase.
3) Within 90 days of having found that any of the constituents have been detected
at a statistically significant: level exceeding the Ground Water Protection
Standards, defined at Rule 1200-1-7-.04<7)(a)1(I), an owner/operator must initiate
an assessment of corrective measure to be completed within a reasonable period of
time.
Dickson County has already notified this office that cis-1,2-Dichloroethene,
Trichloroethene, and 1,2-Dichloroethene parameters have exceeded the Ground Water-
Protection Standards, therefore, such assessment must then be initiated.
Also, the surface elevations of all sampling points, including the spring, should
be submitted on the new plat diagram of the area due to this office within thirty
days.
In Summary, the Diokson County Landfill has violated the Ground Water Protection
Standard of the Division's regulations; therefore, this letter constitutes notice
that the County must comply with the Ground Water Protection and Monitoring
Standards at Rule 1200-1-7-.04(7)a)1(1). Some specific steps are outlined above.
Dickson County may consider demonstrating that a source other than the landfill
caused the contamination or that a statistically significant increase resulted from
error in sampling, analysis, statistical evaluation or natural variation in
groundwater quality. A report documenting any such demonstration must be certified
bay a qualified ground water scientist and approved by the Department before it
would be acceptable.
If there are any questions regarding this letter, please contact Jason' Repsher at
(615) 299-8850.
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1995 WL 33286 (Tenn.Dept.Env.Conserv.)
(Cit« aat 1995 WL 33286 (fom.Dapt.lBV.OMMiv.))
Page 11
Sincerely,
C. Jason Repsher
Geologist
1995 WL 33286 (Tenn.Dept.Env.Conserv.)
END OF DOCUMENT
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Wfestlaw.
2001 WL 1575544 Page 1
2001 WL 1575544 (Term.Dept.Env.Conserv.)
(Cits aat 2001 WX> 1573544 (Tenn.Dopt.Env.Conserv.))
Department of Environment and Conservation
State of Tennessee
*1 IN THE MATTER OF: DICKSON COUNTY, RESPONDENT
DIVISION OF SOLID WASTE MANAGEMENT
Case No. 01-0510
October 15, 2001
COMMISSIONER'S ORDER
Comes-now Milton H. Hamilton, Jr., Commissioner of the Department of Environment
and Conservation (hereinafter "Commissioner"), and states that:
PARTIES
I.
Milton H. Hamilton, Jr., is the duly appointed Commissioner of the Tennessee
Department of Environment and Conservation (hereinafter "Department").
II.
Dickson County (hereinafter the "County" or "Respondent") is a political
subdivision of the State of Tennessee. Process may be served as follows: Janet A.
Harris, County Executive, Dickson County, P.O. Box 220, Courthouse Annex, Charlotte,
Tennessee 37036.
JURISDICTION
III.
When the Commissioner finds that provisions of the Tennessee Solid Waste Disposal
Act (hereinafter the "Act*), T.C.A. § 68-211-101 et seq. are not being complied
with, he is authorized by T.C.A. § 68-211-112 to issue orders for correction to the
responsible person. Further, T.C.A. § 68-211-117 gives the Commissioner the
authority to assess damages and civil penalties against any person who violates any
provision of the above-mentioned Act or any rule,. regulation, or standard adopted
pursuant to said Act.
IV.
Pursuant to T.C.A. § 68-211-107, the Department is authorized to exercise general
supervision over the operation and maintenance of solid waste processing facilities
and disposal facilities or sites. Such general supervision shall apply to all the
features of operation or maintenance which do or may affect the public health and
safety or the quality of the environment and which do or may affect the proper
processing and disposal of solid wastes.
V.
Pursuant to T.C.A. § 68-212-206, the Commissioner is authorized to order any liable
or potentially liable party to investigate and identify possible hazardous substance
sites, and to furnish information relating to possible hazardous substances. The
Commissioner is further authorized by this section to order any liable or
potentially liable party to contain, cleanup, monitor and maintain inactive
hazardous substances sites. Additionally, pursuant to T.C.A. § 68-212-215, the
Commissioner may issue an order for correction to an appropriate person if any
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2001 WL 1575544 Page 2
2001 WL 1575544 (Tenn.Dept.Env.Conserv.)
(Cita ass 2001 WL 1575544 (Tann.Dapt .Env.Conaarv.))
provision of Part 2 of the Hazardous Waste Management Act of 1983 is not being
carried out, or if effective measures are not being taken to comply with any
provision of said Part.
VI.
The Respondent is a 'person* within the meaning of T.C.A. S 68-211-103.
VII.
The Respondent is a "person" within the meaning of T.C.A. § 68-212-102, which
incorporates by re£erence the definition of person set forth in T.C.A. § 68-212-
104(12) and the Respondent are "liable parties" as defined in T.C.A. § 68-212-
202(4) .
VIII.
•2 The site, hereinafter described, is a hazardous substance-site within the
meaning of T.C.A. § 68-212-202(3).
FACTS
IX.
From approximately 1968 until 1972, the City Of Dickson (hereinafter the "City")
operated a solid waste disposal site on a certain tract of land in Dickson County. A
more complete description-of this-property is-contained in a Deed-of Record in Deed
Book 73, Page 526 in the Register's Office of Dickson County, Tennessee.
x.
On August 25, 1972, the City entered into an agreement with the County for tr.d
'joint use and operation of a sanitary landfill." A copy of this agreement is
attached hereto as Exhibit A and incorporated herein by this reference. On October
10, 2001/ a second agreement concerning this landfill became effective between the
County and the City. A copy of this agreement is attached hereto as Exhibit B and
incorporated herein by this reference.
XI.
On September 23, 1972, the Division o£ Solid Waste Management (hereinafter the
"Division") issued a permit (SNL22-102-0065) to the County to operate a solid waste
disposal facility. The footprint of the facility also included the area that had
been previously used by the City. The Agreement states; "the title of the real
estate where the present landfill site is located shall remain in the Town of
Dlckaon, and when it is necessary to cease using said property for landfill
purposes, the title is to remain in the Town of Dickson.¦
XII.
Allegations have been made, that for a period of time between 1968.and 1977, the
Ebbtide Company disposed of drummed waste by the trailer load every week for a
period of three (3) to four (4) years. The contents were suspected to be solvents.
It was further alleged that an attempt by a landfill employee to remove the top from
one of the drums resulted in an explosion. The exact number of drums disposed of is
unknown. Allegations were also made that Schrader Automotive also dumped, during
this time period, drums of waste solvents used to degrease automotive parts.
XIII.
On September 2, 1994, the County reported to the Division of Water Pollution
Control that a spring (Sullivan Spring) located near the landfill was found to
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2001 WL 1575544 (Tenn.Dept.Env.Conserv.)
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contain levels of certain chemicals above the maximum contaminant level (hereinafter
"MCL") in drinking water. The report summarized the findings as follows:
SAMPLING/ANALYSIS FINDINGS
The first sampling event for the sixty-four (64) parameters was conducted on
March 5, 1994.
The second sampling was done on June 24, 1994. The results of the analyses show
that the Sullivan Spring sample was above the MCL for trichloroethene and 1,2
Dichloroethene and measurable levels of cis-1,2-Dichloroethene were found as shown
below:
Chemical Name Level, 3/5/94 Level, 6/25/94 MCL
mg/1 mg/1 mg/1
Trichloroethene 0.018* 0.083* 0.005
cis-1,2-Dichloroethene 0.005 0.019 0.07
1,2-Dichloroethene <.002 0.019 0.007
XIV.
*3 On September 9, -1994, the Division of Solid Waste Management sent a Notice of
violation to the County alleging violation of the Ground Water Protection Standard.
The Notice of Violation stated, in part, as follows:
Your ground water samplings and analysis report submitted to this office on July
27, 1994, and confirmation sampling on September 2, 1994 indicate that the Dioksan
County Landfill, SNL 22-102-0065, has violated the Division's Ground Water
Protection Standard and Maximum Contaminant Levels for three (3) parameters.
Specifically cis-1,2-Dichloroethene which was reported at 0.019 mg/1,
Trichloroethene at 0.083 mg/1, and 1,2-Dichloroethene at 0.019 mg/1 in the Sullivan
Spring.
XV.
On April 22, 1997, the Division of Water Supply sent a letter to tne City that
stated, in part, as follows:
Recent sampling for volatile organics has revealed that well f> 21, located near
the County landfill contains trichloroethylene at levels that exceed the maximum
contaminant level (MCL).
XVI.
On August 18, 1998, Respondent conducted water sampling at Sullivan Spring that
indicated levels of 29 parts per billion (hereinafter "ppb") cis-1,2- Dichloroethene
and 140 ppb Tricholoroethylene. The MCL for cis-t,2- Dichloroethene is 70 ppb and
the MCL for Trichloroethylene is 5 ppb.
XVII.
On April 12, 1999, the Division issued a Notice of Violation to the City and the
County. The Notice of Violation stated, in part, as follows:
During the course of this inspection, we observed conditions existing at this
site that are causing a large volume of leachate to accumulate in this site. These
conditions include the following:
(1) An inadequate depth of- final cover across the facility evidenced by exposed
wastes in several areas, and
(2) A lack of adequate grading to promote positive drainage of the facility
evidenced by extensive pooling of leachate on the surface.
The buildup of hydraulic head from leachate, which is resulting in surface
outbreaks and discharges of leachate to a tributary of Whorley Furnace Branch, is a
potential groundwater contamination threat to human health and the environment.
The Notice of Violation requested that a corrective action plan be prepared, and
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Page 4
submitted by June 1, 1999. The plan was to include, at a minimum, a summary of
methods to be used to manage leachate, a design of a final cover system and a
timetable for completion of the corrective actions.
XVIII.
On August 26, 1999, sample analyses from the Sullivan Spring showed the following
results:
cis-1,2-Dichloroethene - 39 ppb
Trichloroethylene - 160 ppb
XIX.
The analytical results of sampling from Sullivan Spring on January 20, 2000,
reported levels of 28 ppb cis-1,2-Dichloroethene and 130 ppb Trichloroethylene.
Sampling results of February 25, 2000 at Sullivan Spring indicate levels of 16 ppb
cis-1,2-Dichloroethene and 81 ppb Trichloroethylene.
XX.
On September 21, 2000, water samples were collected again at Sullivan Spring. The
analyses reported levels of 25 ppb cis-1,2-Dichloroethene and 160 ppb
Trichloroethylene.
XXI.
*4 On February 1, 2001, the Division issued a Remedial Action Notice to the-
Respondent. A copy of this Notice is attached hereto as Exhibit C and incorporated
herein by this reference. The County submitted a Work Plan on August 3, 2001.
ORDER
XXII.
WHEREFORE, PREMISES CONSIDERED, pursuant to the authority vested by T.C.A. § S 68-
211-112, 68-211-117, 68-212-206, and 68-212-215, I, Milton H. Hamilton, Jr., hereby
issue the following ORDER AND ASSESSMENT to the Respondent:
1. The Respondent shall immediately, upon receipt of the Order, begin implementing
the interim remedial measures as set out in the Work Plan submitted to the Division
on August 3, 2001 and shall complete such measures in accordance with the approved
schedule of implementation.
2. After closure of the facility, the Respondent shall perform the following post
closure care activities:
A. Maintain the final contours and drainage system of the site in a manner that:
(i) Minimizes the precipitation run-on from adjacent areas onto the site;
(ii) Minimizes erosion of cover material;
(iii) Optimizes drainage of precipitation falling.on the site; and
(iv) Provides a surface drainage system that is consistent with the
surrounding area and in no way significantly adversely affects proper drainage from
the adjacent lands.
B. Ensure that a healthy vegetative cover is established and maintained over the
site;
C. Maintain the drainage systems, sediment ponds, and other erosion/sedimentation
control measures, at least until the vegetative cover is established and
sufficiently enough to render such maintenance unnecessary;
D. Maintain and monitor the leachate collection, removal, and treatment system;
E. Maintain and monitor the gas collection and control system;
F. Maintain and monitor the ground and/or surface water monitoring system.
Monitoring data must be reported in writing to the Division Director within thirty
(30) days after completion of the analyses.
Such post-closure care activities shall be performed for a minimum of five (5)
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Page 5
years after closure, at which time the necessity for continuing post-closure
activities will be evaluated by the Division.
3. The Respondent shall, within thirty (30) days of the receipt of this ORDER,
submit to the Division an Environmental Assessment Plan. The Environmental
Assessment Plan shall include at a minimum:
A. A description of all investigations and remedial activities completed to date;
3. A soil investigation plan, with an implementation schedule, designed to
establish the horizontal and vertical extent of migration of contamination;
C. A groundwater assessment plan that, at a minimum, must:
(i) Be capable of determining whether solid waste or solid waste/hazardous
substance constituents from the facility/site have entered the groundwater, the rate
and extent of migration of waste or waste constituents into the groundwater, and the
concentration of such wastes or waste constituent(s) in the groundwater;
*5 (ii) Specify the number, location, and depth of wells, the sampling and
analytical methods to be used and a schedule of implementation; and
(iii) Include provisions for identifying all domestic or commercial water use
within a one-mile radius of the site.
D. Be certified by a professional geologist registered under the Tennessee
Geologist Act (T.C.A. § 62-36-101 et seq.) or a professional engineer registered
under the Tennessee Architects, Engineers, Landscape Architects, and Interior
Designers Law (T.C.A. § 62-2-101 et seq.).
4. The Respondent shall immediately, upon approval by the Division, begin
implementation of the Environmental Assessment Plan in accordance with all of its
terms and conditions.
5. The Respondent shall, within thirty (30) days of the completion of the
Assessment, submit to the Division a Remediation Plan. The Remediation Plan shall be
certified by a professional geologist registered under the Tennessee Geologist Act
(T.C.A. § 62-36-101 et seq.) or a professional engineer registered under the
Tennessee Architects, Engineers, Landscape Architects and Interior Designers Law
(T.C.A. § 62-2-101 et seq.). The Remediation Plan shall include, at a minimum,
methods to remediate any groundwater contamination and methods to insure proper
closure and continuing maintenance of the facility/site. The Remediation Plan shall
also include a schedule of implementation.
6. The Respondent shall, immediately upon approval by the Division, begin
implementation of the Remediation Plan in accordance with all of its terms and
conditions.
7. The Respondent shall, within sixty (60) days of the completion of the remedial
activities, notify the Division in writing. The notification shall include a
certification by the Respondent that the activities were performed in accordance
with the approved Plan.
RESERVATION OF RIGHTS
This ORDER shall not, in any way, be construed as a waiver, expressed or implied,
of any provision of the Tennessee Solid Waste Disposal Act or the Tennessee
Hazardous Waste Management Act or the regulations promulgated under these Acts.
Nothing in this ORDER is to be construed as waiving any right or authority available
to the Commissioner to assess the Respondent for liability for costs, expenditures,
civil penalties or damages incurred by the State. The right to order further
investigation, remedial action and/or monitoring and maintenance is also
specifically reserved. Further, this ORDER shall not be construed as waiving,
settling, or in any manner compromising any natural resource damage claim that the
State of Tennessee may have under Section 107 of CERCLA, or any statutes, rules,
regulations, or common law. Finally, the Commissioner specifically reserves the
right to issue Orders to additional liable parties, including, but not limited to,
the City
Milton H. Hamilton, Jr.
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Commissioner
Exhibit A
AGREEMENT BETWEEN DICKSON COUNTY AND THE TOWN OF DXCKSOK FOR THE JOINT USE AND
OPERATION OF A SANITARY LANDFILL
*6 THIS AGREEMENT made and entered into on this the 25 day of August, 1972, to be
effective September 1, 1972, by and between the. TOWN OF DICKSON, a Municipal
Corporation, and the DICKSON COUNTY BOARD OF SANITATION, as created by TCA 5-1901
and subsequent sections.
The Town of Dickson is the owner of approximately thirty (30) acres of land located
in the old Fifth Civil District of Dicks on County, Tennessee, and which has been-
used for a site for the disposal of garbage for the past several years.
The Town of Dickson is also the owner of a certain piece of equipment necessary to
the operation of said landfill known as a 12-G Loader, manufactured by the Allis
Chalmers Company, which the parties have had appraised by a competent firm and is
agreed to have a fair market value of Thirty Thousand ($30,000.00) Dollars,
It is agreed by the representatives of the Town of Dickson and the members of the
County Board of Sanitation, and the County Judge, that it will be of mutual benefit
for the Town of Dickson and Dickson County to use and operate jointly said landfill
for the disposal of garbage to be collected throughout the County, and it is hereby
agreed, as follows:
1. The Cour.ty may use the landfill site jointly with the Town of Dickson until it
is no longer practical to use same, at which time the County will provide a suitable
site at no expense to the Town. The location and the distance to this site should
not cause a hardship on the City of Dickson Sanitation Department- in hauling their
refuse to the Landfill
2. The County will purchase the equipment referred to herein; that is, the 12- G
Loader, from the Town of Dickson for the sum of Thirty Thousand ($30,000.00)
Dollars.
3. The employees, being 2 in number, who cure now working at the landfill site, will
continue as employees of the Town of Dickson on a monthly basis for the salaries of
said employees including fringe benefits.
4. Title to the real estate where the present landfill site is located shall remain
in the Town of Dickson, and when it is necessary to cease using said property for
landfill purposes, the title is to remain in the Town of Dickson.
TO WHICH, the parties hereto have set their hands, this the 25 day of August, 1972,
to be effective as of September 1, 1972.
TOWN OF DICKSON
Slayden Weaver
Mayor
DICKSON COUNTY
William D. Field
County Judge
(Illegible Signature)
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(Illegible Signature)
(Illegible Signature)
Members of County Board of Sanitation
Exhibit B
LANDFILL AGREEMENT BY AND BETWEEN DXCKSOH COUNTY AND THE CITY OF DICKSON
THIS AGREEMENT is made and entered into this 10th day of' October'/ '2001, by and
between Dickson County, Tennessee, a political subdivision organized and existing
under the laws of the State of Tennessee (hereinafter referred to as 'the County")
and the City of Dickson, Tennessee, a municipal corporation incorporated and
existing under the laws of the State of Tennessee (hereinafter referred to as- "the
City").
RECITAL
*7 A. WHEREAS, the City and the County each own a portion of the real estate upon
which the Dickson County Landfill is located; and,
3. WHEREAS, pursuant to an agreement titled "Agreement Between Dickson County and
the Town of Dickson for the Joint Use and Operation of a County Landfill," dated
August 22, 1972, the County obtained a Class I Solid Waste Landfill Permit issued by
the Tennessee Department of Environment and Conservation, (hereinafter called
"TDEC") bearing registration number SNL-22- 102-0065, (hereinafter referred to as
"the Landfill"), and the County has been operating said Landfill pursuant to said
Agreement; and,
C. WHEREAS, on April 12, 1999, TDEC issued a "Notice of Violation" to the County
and to the City, alleging violations of the Tennessee Solid Waste Management Act,
with regard to certain conditions it alleged to be present at the Landfilli and,
D. WHEREAS, issues have arisen as to the respective responsibilities of the
County and the City with regard to the Landfill, which the County and the City now
desire to resolve through this Agreement for their mutual benefit; and,
E. WHEREAS, the Dickson County Commission and the Dickson City Council have
authorized the execution of this Agreement upon the terms and conditions hereinafter
set out.
NOW, THEREFORE, in consideration of the mutual agreements set forth herein and for
other good and valuable consideration, the adequacy and sufficiency of which is
hereby acknowledged by the parties, the City and the County agree as follows:
1. The City and the County shall each continue to retain title to the real estate
which each owns and upon which the Landfill is located.
2. For such time as the County deems appropriate and requests, the City shall
accept all leachate generated by the Landfill, whether on City- or County-owned
property for disposal to the City's sanitary sewer system and treatment by its
municipal wastewater treatment plant at the rates charged all customers. The City
will reimburse the County for all normal charges by the City of Dickson Water
Department for the treatment and acceptance of that leachate. However, if the
leachate exceeds the County's permit limits or if the leachate contains abnormal
wastes requiring additional costs, the County will pay any such additional costs
without reimbursement from the City.
3. The County shall undertake and satisfy final cover, grading, drainage,
maintenance and such other conditions of.the closure, post closure permit for the
Landfill which was issued by TDEC to the County on June 25, 1997, and shall be
responsible for such other corrective or remedial measures that may be required by
TDEC or any other regulatory agency to be in compliance with State and Federal laws
and regulations applicable to the Landfill. In addition, the County shall be
responsible for any civil penalties which any administrative or judicial body may
impose regarding the Landfill.
*8 4. In the southwest portion of the County's Landfill and in the general
vicinity of the sediment pond, at its own expense, the County shall construct a pump
station which the City shall operate and maintain at the City's expense to
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facilitate individual connections to the City's sanitary sewer system.
5. Upon the execution of this Agreement by the City and the County, this
Agreement shall supercede the August 22, 1972 Agreement Between Dickson County and
the Town of Diakaon for the Joint Use and Operation of a County Landfill, with
respect to their future responsibilities, liabilities and obligations to each other
and neither the City nor the County will have any liability or obligation to each
other from this day forward arising out of the August 22, 1972 Agreement which is
not set forth in this present Agreement. This Agreement shall, in no way, render
void or ineffective the terms and conditions of the August 22, 1972, agreement from
the date of its execution up until the date of the execution of this present
agreement herein.
IN WITNESS WHEREOF, the County and the City have caused their respective duly
authorized officers to execute this Agreement as of the day and year first above
written.
DICKSON COUNTY, TENNESSEE
Janet A. Harris
County Executive
CITY OF DICKSON, TENNESSEE
Don L. Weiss, Jr.
Mayor
Exhibit C
Division of Solid Waste Management
February 1, 2001
Donald L. Weiss, Jr.
Mayor
City of Dickson
202 South Main Street
Dickson, TN 37055
Janet A. Harris
County Executive
uickson County
P.O. Box 220
Courthouse Annex
Charlotte, TN 37036
RE: REMEDIAL ACTION NOTICE
Dear Mr. Weiss and Ms. Harris:
The City of Dickson and Dickson County are owners/operators of a solid waste
disposal facility as defined under the Tennessee Solid Waste Disposal Act (T.C.A.
68-211-101 et sea-)- This facility is also a hazardous substance site within the
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meaning of T.C.A. § 68-212-202(3) of the Tennessee Hazardous Waste Management Act. A
more complete description of this facility/site is contained in a Deed of Record in
Deed Book 73, Page«526 in the Register's Office of Dickson County, Tennessee.
Pursuant to T.C.A. § 68-211-107 the Department is authorized to exercise general
supervision over the operation and maintenance of solid waste processing facilities
and disposal facilities or sites. Such general supervision shall apply to all the
features of operation or maintenance which do or may affect the public health and
safety or the quality of the environment and which do or may affect the proper
processing and disposal of solid wastes. Further, the Commissioner is authorized by
T.C.A. 5 68-211-112 to issue orders tor correction-fro-the-responsible person
Pursuant to T.C.A. § 68-212-206, the Commissioner may request and/or order any
liable or potentially liable party to investigate and identify possible hazardous
substance sites, and to furnish information relating to possible hazardous
substances. The Commissioner is further authorized by this section to order any
liable or potentially liable party to contain, cleanup, monitor and maintain
inactive hazardous substances sites. Additionally, pursuant to T.C.A. § 68-212-215,
the Commissioner may issue an order for correction to appropriate persons if any
provision of Part 2 of the Hazardous Waste Management Act of 1983 is not being
carried out, or if effective measures are not being taken to comply with any
provision of said Part.
*9 The City of Dickson and Dickson County have failed to maintain the facility/site
in such a manner as to minimize the generation of leachate and have allowed the
release of solid waste/hazardous substance constituents into the groundwater. To
insure the proper closure, continuing maintenance, and post closure care of the
facility/site the City of Dickson and Dickson County must complete the following:
1. Within ninety (90) days after receipt of this notice, the City of Dickson and
Dickson County shall submit to the Division of Solid Waste Management (Division) an
Environmental Assessment Plan. The Environmental Assessment Plan shall include at a
minimum:
A. A description of all investigations and remedial activities completed to
date;
B. A soil investigation plan designed to establish the horizontal and vertical
extent of migration of contamination and a schedule of implementation;
C. A groundwater assessment plan that, at a minimum, must:
(i) Be capable of determining whether solid waste or solid waste/hazardous
substance constituents from the facility/site have entered the ground water, the
rate and extent of migration of waste or waste constituents in the ground water, and
the concentration in the ground water of such wastes or waste constituent(s);
(ii) Specify the number, location, and depth of wells; the sampling and
analytical methods to be used for detecting the solid wastes and solid
waste/hazardous substance constituents in the ground water; the evaluation
procedures, including any use of previously gathered ground water quality
information; and a schedule of implementation;
(iii) Be certified by a professional geologist registered under the Tennessee
Geologist Act (T.C.A. 62-36-101 et seq.) or a professional engineer registered under
the Tennessee Architects, Engineers, Landscape Architects, and Interior Designers
Law (T.C.A. 62-2-101 et seq.).
(iv) Include provisions for identifying all domestic or commercial water use
within an area determined by the Division.
2. Upon approval by the Division, the City of Dickson and Dickson County shall
implement the Environmental Assessment Plan.
3. Within thirty (30) days following completion of the assessment, the City of
Dickson and Dickson County shall submit to the Division, a Remediation Plan. The
Plan shall include, at a minimum, methods to remediate any ground water
contamination and methods to insure proper closure and continuing maintenance of the
facility/site. The Plan shall also include a schedule of implementation.
4. Upon approval of the Remediation Plan, by the Division, the City of Dickson
and Dickson County shall implement the Plan.
5. The City of Dickson and Dickson County shall notify the Division, in writing,
within sixty (60) days of the completion of remedial activities. The notification
shall include a certification by the City of Dickson and Dickson County that the
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2001 WL 1575544 (Tenn.Dept.Env.Conserv.)
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activities were performed in accordance with the approved plan-:
*10 The City of Dickson and Dickson County shall, at a minimum, perform the
following post closure care activities:
1. Maintain the final contours and drainage system of the site in a manner that:
(a) Minimizes the precipitation run-on from adjacent areas onto the site;
(b) Minimizes erosion of cover material;
(c) Optimizes drainage of precipitation falling on the site; and
(di Provides a surface drainage system that is consistent with the surrounding
area and in no way significantly adversely affects proper drainage from the adjacent
lands.
2. Ensure that a healthy vegetative cover is established and maintained over the
site;
3. Maintain the drainage facilities, sediment ponds, and other
erosion/sedimentation control measures (if such are present at the site), at least
until the vegetative cover is established and sufficiently enough to render such
maintenance unnecessary;
4. Maintain and monitor the leachate collection, removal, and treatment system
(if such is present at the site);
5. Maintain and monitor the gas collection and control system (if such is present
at the site);
6. Maintain and monitor the ground an/or surface water monitoring system (if such
is present at the site). Monitoring data must be reported in writing to the Division
Director within 30 days after completion of the analyses.
This Notice is not to be construed as a waiver of any provision of the Tennessee
Solid Waste Disposal Act or the Tennessee Hazardous Waste Management Act oz the
regular ions promulgated under these Acts. Nothing in this Notice is to be construed
as waiving any right or authority available to the Commissioner to. assess civil
penalties or to recover costs, expenditures, or ctemages incurred by the State.
Further, this Notice shall not be construed as waiving, settling, or in any manner
compromising any natural resource damage c]aim that the State of Tennessee may have
under Section 107 of CERCLA, or any statutes, rules, regulations, or common law.
If we do not .iear from you within thirty (30) days of receipt of this Notice
confirming your willingness to comply with the terms of this Notice, we will
cont inue enforcement proceedings.
If you have any questions concerning this correspondence, please contact Al Majors
,t (615) 687-7019.
Sincerely,
Mike Apple
Director
2001 WL 1575544 (Tenn.Dept.Env.Conserv.)
END OF DOCUMENT
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ATLANTA LEGAL SERVICES, INC.
3070 PRESIDENTIAL DRIVE, SUITE 148
ATLANTA, OA 30340
404-076-8098
BUWTRVST BANK
ATLANTA, OA 30931
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Case 1:10-mi-00144-RWS Document 8 Filed 07/20/2010 Page 1 of 20
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
NATURAL RESOURCES DEFENSE
COUNCIL, et al.,
Plaintiffs,
CIVIL ACTION NO.
v.
l:10-mi-0144-RWS-RGV
COUNTY OF DICKSON
TENNESSEE, et al.,
Defendants.
(Pending in the United States District
Court for the Middle District of
Tennessee, Case No. 3:08-cv-00229)
ORDER
Pending before the Court is an emergency motion filed by the United States
of America ("United States") to quash a third-party subpoena issued by plaintiffs
Natural Resources Defense Council ("NRDC"), Beatrice Holt, and Sheila Holt-
Orsted (collectively, "plaintiffs"), to Franklin E. Hill ("Hill"), the Region4 Superfund
Director of the Environmental Protection Agency ("EPA"). [Doc. 1]. Plaintiffs
oppose the motion to quash. [Doc. 4]. For the following reasons, the motion is
hereby GRANTED.
I. BACKGROUND
The subpoena for Hill was served in connection with a lawsuit pending in the
United States District Court for the Middle District of Tennessee, Natural Resources
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Case 1:10-mi-00144-RWS Document 8 Filed 07/20/2010 Page 2 of 20
Defense Council, et al.. v. County of Dickson Tennessee, et al., Civil Action No. 3:08-
cv-00229, in which plaintiffs allege that contamination from various chemicals
disposed of at the Dickson County Landfill ("DCL")," may present an imminent and
substantial endangerment to health or the environment, in violation of the Resource
Conservation and Recovery Act, 42 U.S.C. § 6972(a)(1)(B)." [Doc. 4 at 2 (internal
marks omitted)].1 Specifically, plaintiffs allege that" [t]his contamination has seeped
into the underlying aquifer and is spreading through Dickson County." [IcL
(citation omitted)]. Defendants are the municipal owners and/or operators of the
DCL and three private companies alleged to have dumped waste at the DCL. [Id.
at 3].
The DCL was originally opened by the City of Dickson ("the City") in 1968 as
a city dump, and in 1972, the City entered into a contract with Dickson County for
the joint use and operation of a sanitary landfill. [Doc. 1 at 2]. Subsequently, the
DCL was permitted as a solid waste disposal facility. [Id.]. The EPA developed
federal regulations, establishing minimum criteria for the siting and operation of
such facilities, and provided that the oversight of such facilities would be under the
authority of approved state programs. [IcL at 3]. The EPA granted the State of
Tennessee full approval for its municipal solid waste landfill permitting program,
1 Unless otherwise cited, these facts, which are largely uncontested, are taken
from the parties' briefs and supporting exhibits.
2
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Case 1:10-mi-00144-RWS Document 8 Filed 07/20/2010 Page 3 of 20
thereby making Tennessee fully responsible for both implementing and funding the
program, including overseeing operations and response activities. [Id.].
In 1991, the EPA conducted a site investigation of the DCL to determine
whether the DCL was eligible for listing on the National Priorities List, and it
concluded that the DCL was not eligible for the listing. [Doc. 1 at 3; Doc. 4 at 3]. The
EPA reassessed the DCL in 2001 in response to concerns about contaminated
drinking water and reports of a cluster of birth defects in the area. [Doc. 1 at 3; Doc.
4 at 3; Doc. 4-4 at 4]. In October 2001, the Tennessee Department of Environment
and Conservation ("TDEC") directed Dickson County to prepare and implement an
Environmental Assessment Plan and Remediation Plan to characterize and address
any groundwater contamination. [Doc. 1 at 3; Doc. 4-4 at 4].
From 2002 through 2004, the EPA hired a contractor to conduct a review and
collect all of the available studies and environmental investigations performed at the
DCL. [Doc. 1 at 3; Doc. 4 at 4; Doc. 4-4 at 4]. The EPA provided the contractor's
report to the TDEC and Dickson County to help guide their remediation efforts.
[Doc. 1 at 3; Doc. 4-4 at 4]. Because the landfill was being actively regulated by the
TDEC and managed by Dickson County, in 2004, the EPA designated the landfill as
being subject to "Other Cleanup Activity" ("OCA").2 [Doc. 1 at 3-4; Doc. 4-4 at 4].
2 OCA is a designation given to document investigation and cleanup work at
sites where work is being performed by non-EPA parties without EPA enforcement
3
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Case 1:10-mi-00144-RWS Document 8 Filed 07/20/2010 Page 4 of 20
Since the OCA designation, the EPA has not conducted any additional response
activities at the DCL. [Doc. 1 at 4; Doc. 4-4 at 4].
In September and October of 2009, the EPA received inquiries regarding the
DCL from two citizens, one of whom is a party to the underlying litigation. [Doc.
1 at 4]. In response to those inquiries, on October 28,2009, and January 11,2010, the
EPA prepared two letters regarding the contamination at the DCL. [Doc. 1 at 4; Doc.
1-3; Doc. 1-4; Doc. 4 at 4]. The October 28, 2009, letter was signed by Hill, and the
January 11, 2010, letter was signed by A. Stanley Meiburg, the Acting Regional
Administrator for EPA Region 4. [Docs. 1-3 & 1-4]. In the October 28, 2009, letter,
Hill described EPA's involvement with the DCL, explaining in pertinent part:
EPA has gathered the following information from the State and
Dickson County regarding the current status of ongoing response
activities at the DCL. Dickson County, as required and approved by
TDEC, has been implementing components of a remedy and
conducting site characterization in a phased approach. The remedy
implemented by Dickson County has included landfill caps, leachate
collection systems, alternate water supplies, including water line
construction projects, and implementation of institutional controls.
Both the Dickson County [municipal solid waste landfills] and the old
City Dump have had geocomposite cover systems installed, along with
passive gas and leachate collection systems. All residents in areas with
confirmed contamination are now connected to the public water
supply. Approximately 4.2 miles of water main have been constructed
to complete these connections. In order to further protect residents
or oversight. [Doc. 1 at 4; Doc. 4-4 at 4]. The OCA designation suspends EPA site
assessment activities, and a non-EPA party, which is typically a state, continues the
investigation and cleanup of the site. [Doc. 1 at 4; Doc. 4-4 at 4].
4
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Case 1:10-mi-00144-RWS Document 8 Filed 07/20/2010 Page 5 of 20
from possible groundwater contamination, the Dickson County
Commission adopted the "Water Well and Spring Regulation" ... in
January 2007, which prohibits the drilling of water wells or the use of
springs within identified environmental risk areas. Finally, the County
continues to implement a groundwater monitoring and assessment
program at the landfill and within the identified risk area.
Based upon currently available information, EPA believes that there are
currently no unacceptable human health exposures related to the DCL.
Dickson County continues to perform work at the landfill pursuant to
the TDEC Commissioner's Order. EPA's Superfund program does not
currently have any plans for further evaluation or action at the DCL.
[Doc. 1-3 at 2]. Additionally, in the January 11,2010, letter, the EPA, after repeating
the information contained in its October 28 letter, reiterated, "Based upon currently
available information, EPA believes that there are no ongoing unacceptable human
health impacts associated with exposure to contaminants released from the DCL.
Dickson County continues to perform work at the landfill to the TDEC
Commissioner's Order." [Doc. 1-4 at 3].
On June 11 and June 28, 2010, plaintiffs' counsel sent the EPA letters
requesting the voluntary deposition of Hill. [Docs. 1-5 & 1-6]. In these letters,
counsel explained that plaintiffs were seeking testimony concerning the opinions
expressed by the EPA in the two letters dated October 28,2009, and January 11,2010.
[Docs. 1-5 & 1-6], Specifically, plaintiffs' counsel states:
[W]e seek a more detailed explanation of the basis for and reasoning
behind statements in those letters that EPA believes that there are
currently no unacceptable human health exposures related to the DCL,
5
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Case 1:10-mi-00144-RWS Document 8 Filed 07/20/2010 Page 6 of 20
and that EPA believes that there are no ongoing unacceptable human
health impacts associated with exposure to contaminants released from
the DCL.
[Doc. 1-6 at 1 (internal marks and citations omitted)]. After numerous discussions
between plaintiffs' counsel and Mary J. Wilkes ("Wilkes"), Regional Counsel for the
EPA, regarding Hill's requested testimony, on July 1, 2010, plaintiffs served EPA
with a subpoena for Hill, directing him to appear for a deposition on July 9, 2010.
[Doc. 1-7].
After receiving the subpoena, Wilkes considered the request in light of the
EPA's regulations and concluded that the EPA did not have a clear interest in
allowing Hill to testify in the underlying action. [Doc. 1-2]. Specifically, Wilkes sent
plaintiffs' counsel a letter, stating in relevant part:
A review of the full content of EPA's October 28,2009 and January 11,
2010 response letters . . . reveals that EPA provided a detailed
explanation of the basis and reasoning behind its beliefs regarding
ongoing human health impacts associated with exposure to
contaminants released from the DCL. These bases and EPA's reasoning
are clearly laid out in the two response letters, which are attached
hereto. Because of this, the letters speak for themselves and provide
the exact information for which you seek testimony ("to explore the
basis for these two statements, including EPA's knowledge of the
contamination and of actions taken to respond to that contamination."
Letter from Rebecca Riley, ADC, to EPA Region 4, dated June 11, 2010).
While your June 28,2010 testimony request letter clarifies that you seek
from Mr. Hill or his staff "a more detailed explanation of the basis for
and reasoning behind" the two statements noted above (Emphasis added.
See Letterfrom Rebecca Riley, NRDC, to Melissa Heath, EPA Region 4, dated
June 28, 2010), you do not explain what about the previous detailed
6
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Case 1:10-mi-00144-RWS Document 8 Filed 07/20/2010 Page 7 of 20
explanations are insufficient and what "more detail" you are looking
for in additional testimony.
Further, in its two response letters of October 28, 2009 and January 11,
2010, EPA clearly explained that in responding to the citizen inquiries,
it was relying entirely on information provided by the State and the
County, since the State was the lead agency at the DCL and EPA
activities at the landfill had ended in 2004 when it made the OCA
designation. Given this, it is difficult to identify (and again you have
not specified) what "more detailed" explanation may be available to
give by EPA considering that EPA's response letters were based only
on State and County information. Also, to the extent you may be
seeking testimony, not to provide a more detailed explanation, but to
challenge the validity of the underlying State or County information,
it would seem that there is ample opportunity for the plaintiffs to
explore such a challenge with the State or the County since they are
defendants to the underlying litigation.
As described above, the nature of the underlying litigation (a private
party litigation against the State and county where the State is the
responsible agency for ongoing activities and remedies at the DCL) and
the nature of the testimony requested/subpoenaed from Mr. Hill or his
staff (the provision - of a "more detailed explanation" when a detailed
explanation had already been provided in a matter where EPA has not
been active for a number of years and has relied only on State and
County documents), must be weighed against EPA's strong interest in
maintaining control over its workforce and conserving and maximizing
the use of its limited resources, which includes personnel and their
time. Here in Region 4, Mr. Hill is a senior agency official who
supervises more than 195 employees working on many matters dealing
with hazardous substances, pollutants, and contaminants across the
eight-state Region. He and his staff are hard-pressed to meet their
many responsibilities on a daily basis and this fact weighs heavily
against providing his (or their) testimony given the nature of the
testimony requested in this instance. This weight is even heavier given
Mr. Hill's (and his staff's) significant additional duties in leading EPA
Region 4's on-going efforts to respond to the Gulf of Mexico oil spill
crisis.
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Case 1:10-mi-00144-RWS Document 8 Filed 07/20/2010 Page 8 of 20
[Doc. 1-2 at 4-5 (footnote omitted)].3 Thereafter, the United States filed the present
motion to quash the July 1, 2010, subpoena served on Hill in the underlying
litigation. [Doc. 1].
II. DISCUSSION
A. Standard of Review
The Supreme Court has upheld the authority of executive department heads
to promulgate regulations restricting employee testimony in private litigation.
United States ex rel. Touhv v. Ragen. 340 U.S. 462,468-69 (1951); Moore v. Armour
Pharm. Co.. 927 F.2d 1194, 1197-98 (11th Cir. 1991) (affirming quashing of a
deposition subpoena issued to a Department of Health and Human Services
employee); United States v. Bizzard. 674 F.2d 1382,1387 (11th Cir. 1982) (affirming
quashing of subpoena issued to a Department of Justice employee). The Federal
Housekeeping Act, 5 U.S.C. § 301, provides in relevant part:
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.
5 U.S.C. § 301.
3 Wilkes did provide plaintiffs' counsel a document tnat was used to form the
basis of EPA's two statements in its response letters. [Doc. 1-2 at 5].
8
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Case 1:10-mir00144-RWS Document 8 Filed 07/20/2010 Page 9 of 20
Pursuant to 5 U.S.C. § 301, the EPA has promulgated regulations restricting
testimony by its employees regarding official matters in litigation to which the
United States or its agencies are not a party. See 40 C.F.R. § 2.401 et seq. These
regulations state, in part:
Except as permitted by paragraph (a) of this section, no EPA employee
may provide testimony or produce documents in any proceeding to
which this subpart applies 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 §§ 2.403 through 2.406.
See 40 C.F.R. § 2.402(b). Thus, "an EPA employee may not testify or produce
documents on official EPA matters in federal civil proceedings where the United
States, the EPA or another Federal agency is not a party, unless the employee is
authorized by the EPA to do so." United States ex. rel. Lewis v. Walker. No.
3:06-CV-16(CDL), 2009 WL 2611522, at *2 (M.D. Ga. Aug. 21, 2009) (footnote and
citations omitted).
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 or production of documents when
clearly in the interests of EPA." 40 C.F.R. § 2.401(c). "The EPA regulations require
that, in deciding whether to authorize an employee to testify pursuant to a
9
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Case 1:10-mi-00144-RWS Document 8 Filed 07/20/2010 Page 10 of 20
subpoena, the EPA official must determine 'whether compliance with the request
would clearly be in the interests of EPA.'" United States ex rel. Lewis, 2009 WL
2611522, at *2 (quoting 40 C.F.R. § 2.403). The EPA's decision not to allow an
employee to testify is reviewed in this Circuit as a final agency action under the
Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A). Id. at *3.
Plaintiffs contend that "whether EPA's decision to refuse to comply with the
duly issued subpoena was proper ... should be reviewed under the Federal Rules
of Civil Procedure, the Rules of Evidence, and privilege law." [Doc. 4 at 7].
Specifically, plaintiffs argue that "nothing in [5 U.S.C. § 301] suggests it allows an
agency to repeal the Federal Rules of Civil Procedure as applied to agency
employees served with a valid federal subpoena." [Id. at 6]. In support of this
argument, plaintiffs cite ecisions from the D.C. Circuit and the Ninth Circuit which
have held that a court's review of an agency's decision to not comply with a federal
subpoena should be analyzed pursuant to Rule 45 of the Federal Rules of Civil
Procedure and not under the APA's arbitrary and capricious standard. [Id. at 7
(citing Watts v. SEC. 482 F.3d 501,508 (D.C. Cir. 2007); Exxon Shipping Co. v. United
States Dep't of Interior. 34 F.3d 774, 779 (9th Cir. 1994))].
Plaintiff's argument, however, ignores the fact that "the Eleventh Circuit...
is clear on this point," T&M Assocs.. Inc. v. Callahan. Civil Action No. 07-0883-CG-N,
10
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Case 1:10-mi-00144-RWS Document 8 Filed 07/20/2010 Page 11 of 20
2010 WL 723549, at *1 n.2 (S.D. Ala. _310), and "an agency's decision to
preclude testimony of its employee can only be overturned if the decision was
arbitrary, capricious, an abuse of discretion, or otherwise not [in accordance with]
law,'" United States ex rel. Lewis. 2009 WL 2611522, at *3 (quoting Moore. 927 F.2d
at 1197 (citation omitted)) (alteration in original). "Accordingly, the Court concludes
that the EPA's decision not to permit [Hill's] testimony must be reviewed as a final
agency action under the APA, subject to the arbitrary and capricious standard."
United States ex rel. Lewis. 2009 WL 2611522, at *3.
"'The arbitrary and capricious standard is exceedingly deferential[,]' and the
Court may not substitute its judgment for the agency's as long as the agency's
conclusions are rational." Id. (quoting Miccosukee Tribe of Indians of Fla. v. United
States. 566 F.3d 1257, 1264 (11th Cir. 2009) (citation omitted)). The court, may,
however, find an agency action arbitrary and capricious where:
the agency has relied on factors which Congress has not intended it to
consider, entirely failed to consider an important aspect of the problem,
offered an explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be ascribed to
a difference in view or the product of agency expertise.
Miccosukee Tribe of Indians of Fla.. 566 F.3d at 1264 (quoting Ala.-Tombigbee Rivers
Coal, v. Kempthorne. 477 F.3d 1250,1254 (11th Cir. 2007)) (citation omitted).
11
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Case 1:10-mi-00144-RWS Document 8 Filed 07/20/2010 Page 12 of 20
B. Analysis
Plaintiffs contend that even under the deferential APA standard of review, the
motion to quash should be denied because EPA's decision to refuse to allow Hill to
provide deposition testimony was arbitrary and capricious. [Doc. 4 at 8]. For the
following reasons, the Court disagrees.
After the EPA received plaintiffs' counsel's June 11 and June 28,2010, requests
for Hill's voluntary testimony and the July 2010 subpoena, Wilkes determined that
authorizing Hill to testify in the underlying action was not clearly in the interests of
the EPA.4 [Doc. 1-2]. Specifically, Wilkes reviewed the content of the EPA's
October 28, 2009; and January 11, 2010, response letters and found that the EPA
"provided a detailed explanation of the basis and reasoning behind its beliefs
regarding ongoing human health impacts associated with exposure to contaminants
released from the DCL," and that" [t]hese bases and EPA's reasoning are clearly laid
out in the two response letters." [Id. at 4].
Wilkes further found that the response letters also clearly explained that the
EPA "was relying entirely on information provided by the State and the County,
since the State was the lead agency at the DCL and EPA activities at the landfill had
4 Wilkes is the General Counsel's authorized designee to determine whether
compliance with the subpoena "would clearly be in the interests of EPA." 40 C.F.R.
§ 2.404(b); see also [Doc. 1 at 9].
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Case 1:10-mi-00144-RWS Document 8 Filed 07/20/2010 Page 13 of 20
ended in 2004 when it made the OCA designation." [Id.]. Therefore, Wilkes
weighed "the nature of the underlying litigation (a private party litigation against
the State and county where the State is the responsible agency for ongoing activities
and remedies at the DCL) and the nature of the testimony requested/subpoenaed
from Mr. Hill or his staff (the provision - of a 'more detailed explanation' when a
detailed explanation had already been provided in a matter where EPA has not been
active for a number of years and has relied only on State and County documents),"
against the EPA's "strong interest in maintaining control over its workforce and
conserving and maximizing the use of its limited resources, which includes
personnel and their time." [Id.]. Because Hill is a senior agency official, supervising
more than 195 employees across the eight-state Region, Wilkes concluded that this
weighed "heavily against providing his (or their) testimony given the nature of the
testimony requested in this instance," and that "[t]his weight is even heavier given
Mr. Hill's (and his staff's) significant additional duties in leading EPA Region 4's on-
going efforts to respond to the Gulf of Mexico oil spill crisis." [Id. at 4-5 (footnote
omitted)]. Thus, it is "clear that the EPA recognized and considered the factors set
forth in 40 C.F.R. § 2.401(c) in making its decision." Davis Enters, v. U.S. EPA. 877
F.2d 1181,1186 (3d Cir. 1989).
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Case 1:10-mi-00144-RWS Document 8 Filed 07/20/2010 Page 14 of 20
Plaintiffs contend that the EPA's reliance on its two response letters as a basis
for not allowing Hill's testimony is arbitrary and capricious because the EPA's
"reasoning behind its conclusions about the Landfill contamination is not clearly
laid out in the two letters/' [Doc. 4 at 8]. However, this argument is not persuasive
because the EPA did state in these two letters the reasons for its conclusion "that
there are currently no unacceptable human health exposures related to the DCL."
[Doc. 1-3 at 2]. As noted earlier, Hill summarized in the October 28,2009, letter the
information that EPA had gathered from the State and Dickson County regarding
ongoing response activities at the DCL. [Id.]. Hill explained that the remedial
measures "included landfill caps, leachate collection systems, alternate water
supplies, including water line construction projects, and implementation of
institutional controls." [Id.]. He added that geocomposite cover systems had been
installed, along with passive gas and leachate collection systems, and that all
residents with confirmed contamination were now connected to the public water
supply. [Id.]. Furthermore, Hill noted that the County has prohibited the drilling
of water wells or the use of springs within identified environmental risk areas, and
it "continues to implement a groundwater monitoring and assessment program at
the landfill and within the identified risk area." [IdJ. In its letter of January 11,
2010, the EPA repeated these reasons for its conclusion that" [b]ased upon currently
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Case 1:10-mi-00144-RWS Document 8 Filed 07/20/2010 Page 15 of 20
available information, EPA believes that there are no ongoing unacceptable human
health impacts associated with exposure to contaminants released from the DCL."
[Doc. 1-4 at 3]. Thus, contrary to plaintiffs' contention, the EPA has laid out in these
two letters its reasoning for the conclusion it has reached regarding the DCL. The
fact that plaintiffs may dispute the EPA's conclusion regarding the DCL does not
render its decision to not allow Hill's testimony arbitrary and capricious.
Plaintiffs also point out that the EPA's "interest in 'conserving' its resources
applies in every case in which it might be served with a subpoena," and that the
"EPA has made no specific showing that the limited testimony [p]laintiffs seek
would impose undue burdens on the agency or any of its employees." [Doc. 4 at 8-
9]. While the EPA's interest in conserving its resources is present in every case,
plaintiff overlooks the fact that this is a factor to be considered under the regulations
in balancing the EPA's interest in providing the testimony, and in this case, Wilkes
concluded that the need to conserve agency resources outweighed the need for the
testimony, and she stated specific reasons for her conclusion. "Moreover,
[plaintiffs'] argument about the minimal burden in this case fails to take into account
the EPA's legitimate concern with the potential cumulative effect of granting such
requests." Davis Enters.. 877 F.2d at 1187.
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Case 1:10-mi-00144-RWS Document 8 Filed 07/20/2010 Page 16 of 20
Additionally, plaintiffs' contention that they only seek limited testimony is
belied by the fact that in their opposition to the motion to quash, plaintiffs state that
they now seek testimony on:
how, based on the information before the agency of widespread
contamination at the Landfill, the agency reached the conclusion that
there are currently no unacceptable human health exposures; whether
EPA follows its own regulations and guidelines concerning such
determinations; and whether EPA would have reached the same
conclusion had it been aware of different information that the State and
County- both of whom are defendants in Landfill-related litigation-
may not have provided.
[Id. at 9-10 (emphasis omitted)]. Thus, it appears plaintiffs seek testimony beyond
the initial scope of their requests in their June 11 and June 28,2010, letters to the EPA
as well as the July 2010 subpoena. See [Docs. 1-5,1-6, & 1-7]. As the United States
points out," [p]laintiffs have been advised that EPA does not have an oversight role
at DCL," but "they now intimate that EPA may be called upon to speculate as well
as to evaluate new information." [Doc. 5 at 10]. Indeed, plaintiffs appear to seek to
use Hill as an expert witness in the underlying litigation. [Id.]. Wilkes specifically
considered the nature of the testimony requested and subpoenaed from Hill and his
staff and concluded that the EPA's interest in maintaining control over its workforce
and conserving and maximizing the use of its limited resources, including its
personnel and their time, weighed against authorizing Hill to testify in the
16
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Case 1:10-mi-00144-RWS Document 8 Filed 07/20/2010 Page 17 of 20
underlying litigation.5 [Doc. 1-2 at 4-5]. This was a reasonable consideration under
the regulations, not an arbitrary and capricious decision.
Plaintiffs cite United States ex rel. Lewis. 2009 WL 2611522, at *1, in support
of their argument that the EPA's decision was arbitrary and capricious. [Doc. 4 at
12]. This case, however, lends no support to plaintiffs' position; in fact, it actually
supports the United States' argument. In United States ex rel. Lewis, plaintiffs
moved to compel the deposition of a non-party EPA employee in a case involving,
among other things, alleged false statements by University of Georgia researchers
in a grant application to the EPA. 2009 WL 2611522, at *1. Plaintiffs also alleged that
several EPA employees made misrepresentations to assist the researchers in
obtaining the grant and that the EPA employees and researchers worked together
on studies related to sewage sludge, "with an agenda of promoting land application
of sewage sludge as safe and beneficial and discrediting any allegations to the
contrary." Id. at *1, 3. The EPA determined that the deposition wold not be an
appropriate use of EPA time and resources and was not in the interests of the EPA,
and therefore declined to make the employee available for the deposition. Id. at *1.
Plaintiffs showed that the EPA employee whose testimony was sought
5 Plaintiffs also state that the testimony "should take less than one full day,"
[Doc. 4 at 11]; however, plaintiff ignores the preparation time necessary for the type
of testimony sought by plaintiffs.
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Case 1:10-mi-00144-RWS Document 8 Filed 07/20/2010 Page 18 of 20
actually participated in various discussions related to the land application of sewage
sludge and was involved in investigations of the land application of sewage sludge.
Id. at *3. Based on these facts, the court found that the EPA employee "likely
possesses information that is relevant to [plaintiffs'] claims," and "is likely to lead
to the discovery of relevant evidence." IcL at *4. Here, in contrast, there is no
indication that Hill had direct or personal involvement or knowledge regarding the
issues in the underlying litigation. Hill's involvement is solely related to the
response letters, which, as stated, were not based on his personal knowledge, but
entirely on information provided by the State of Tennessee and Dickson County.
Thus, this is not a case where the EPA employee either participated in events at issue
in the underlying litigation or has personal knowledge regarding facts relevant to
the case.
In fact, the circumstances present in this case are more akin to those in Moore
than in United States ex rel. Lewis. In Moore, the plaintiffs were parents of children
infected with the HIV virus allegedly through blood transfusions, who sued various
companies that supplied the infected blood. 927 F.2d at 1196. Plaintiffs sought the
testimony of two Center for Disease Control ("CDC") physicians, who were
employees of the Department of Health and Human Services ("HHS"), regarding
the CDC's position on several issues related to the blood transfusion process. Id.
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Case 1:10-mi-00144-RWS Document 8 Filed 07/20/2010 Page 19 of 20
Although the physicians had some knowledge regarding the underlying
litigation, HHS denied permission to depose tne physicians, asserting that, among
other things, the agency could not respond to all similar private litigation requests
and at the same time maintain its governmental functions, that the government
wished to remain neutral in the private litigation, and that "allowing its employees
to get into the conflict of private litigation would harm frank, free, and full
exchanges within the scientific community." Id. The Eleventh Circuit, analyzing the
issue under the AP A standard of review, found that the reasoning provided by HHS
supported its decision to deny access to the physicians' testimony. Id. at 1197-98.
Likewise, if the EPA authorized Hill or his staff to be deposed in private
litigation where the EPA is not a party, "the officials might find themselves
spending all of their time doing nothing but complying with [subpoenas] and thus
they would have little opportunity to pursue their important governmental
responsibilities." Envtl. Enters.. Inc. v. EPA. 664 F. Supp. 585, 586 (D.D.C. 1987).
"Indeed,... the EPA regulations ... are conscientiously designed to deal with this
very difficult issue- that is, to balance the work of the agency with the desire to
cooperate as much as possible with local proceedings." Id. Wilkes addressed this
consideration in her decision not to authorize the testimony, and her conclusion that
the EPA's "interest in having the time of its employees (and therefore taxpayers'
19
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Case 1:10-mi-00144-RWS Document 8 Filed 07/20/2010 Page 20 or 20
money) spent on agency business outweighed the interests of [plaintiffs] in having
[the testimony taken] in private litigation to which the EPA was not a party" was not
arbitrary or capricious. Davis Enters.. 877 F.2d at 1188.
For all of the foregoing reasons, the Court finds that the EPA's denial of
authorization for Hill's testimony was based on a proper application of the agency's
regulations, and the decision was not arbitrary, capricious, an abuse of discretion,
or contrary to law. See Touhv. 340 U.S. at 467-69; Moore, 927 F.2d at 1197-98; Davis
Enters.. 877 F.2d at 1188. Accordingly, the United States' motion to quash, [Doc. 1],
is hereby GRANTED.
The Clerk is DIRECTED to terminate the referral of this action to the
undersigned.
IT IS SO ORDERED, this 20th day of July, 2010.
III. CONCLUSION
RUSSELL G. VTNEYARDl/
UNITED STATES MAGISTRATE JUDGE
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ATTACHMENT #1
CERTIFIED MAIL #7000-1530-0000-5479-4995
RETURN RECEIPT REQUESTED
John E. Hennelly, Esq.
Assistant Attorney Counsel
Department of Law
State of Georgia
40 Capitol Square, SW
Atlanta, Georgia 30334-1300
Subj: Riverkeeper v. EPD; OSAH-DNR-WQ-01-14977-67-JRA
Lake Lanier Assn., et al. v. EPD; OSAH-DNR-WQ-01-14968-67-JRA
Appeal ofNPDES Permit No. GA0038130
Dear Mr. Hennelly:
The purpose of this letter is to respond to your request on behalf of the State of Georgia
and Gwinnett County for testimony in the above-referenced matter. In your November 9, 2001,
letter you indicated that you would like Mr. Roosevelt Childress and Mr. David Parker of the
United States Environmental Protection Agency (EPA) to provide testimony on behalf of the
State of Georgia and Gwinnett County deemed by you to be essential for defense of the above-
referenced permit appeal. Specifically, Mr. Childress would provide information regarding
EPA's review of and comment on the subject permit. Mr. Parker would provide information
regarding EPA Region 4's position on direct potable reuse as set forth in a June 25, 2001, letter
from EPA to Gwinnett County. You indicated that these gentlemen would need to be available
to provide this testimony in Atlanta sometime later this month or early next month.
EPA regulations at 40 C.F.R. Part 2, Subpart C, contain restrictions on EPA employees
testifying regarding official matters in any proceeding in which the United States Government is
not a party. The purpose of the 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 or production of documents when clearly in the interest of EPA.
40 C.F.R. § 2.401 (c).
At the request of other Federal agencies or, where it is in the interest of EPA, at the
request of State or local governments, EPA employees may provide voluntary testimony, with
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approval of the Regional Administrator. 40 C.F.R. § 2.402(a). The concern surrounding the
"interests" of EPA is extremely important to EPA because most EPA studies, inspections,
regulatory actions and similar activities deal with matters which may, and frequently do, give rise
to private and State litigation. Although providing a witness for a few hours in a particular
matter might not significantly impede our mission, the cumulative effect of such interruptions
would be very serious. This concern is the basis for our "interest of EPA" standard for approving
EPA employees' testimony.
Under the circumstances of this case, I have determined that allowing Mr. Childress and
Mr. Parker to furnish the testimony you require, in response to your request, would be in the
interest of EPA. I have concluded that their production of voluntary testimony would contribute
to EPA's mission and would not constitute an improper diversion of EPA resources.
If you have any questions regarding this letter, please contact William B. Bush, Jr.,
Associate Regional Counsel, at (404) 562-9538.
Sincerely,
A. Stanley Meiburg
Acting Regional Administrator
bcc: Nancy Tommelleo, EPA Region 4
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ATTACHMENT #2
MEMORANDUM
SUBJECT: Request for EPA Testimony
FROM: [Name of Attorney]
Associate or Assistant Regional Counsel
Office of Legal Support
TO: [Appropriate Program Manager (Section Chief or Branch Chief)]
[Branch]
[Division]
EPA Region 4 has just received a request for the testimony of [name of employee] in
private litigation where EPA is not a party. A copy of this request is attached for your
convenience. EPA's regulations require that, in consultation with the relevant Division Director,
the Regional Counsel determine whether or not to grant the request. The standard for making
this determination is whether the provision of the requested testimony would clearly be in the
interests of EPA.
In order for the Regional. Counsel to respond to this request, my office needs a short
memorandum from [name of Division Director] to the-Regional Counsel stating whether the
[name of Division] considers the provision of this testimony to be (or not to be) clearly in the
interests of EPA and why. A short legal synopsis of the "clearly-in-the-interests" standard is
attached to assist you in making this assessment. Please forward this memorandum to me by
laate] so that I may prepare, for the Regional Counsel's signature, the appropriate
correspondence responding to the requestor. If you have any questions, please do not hesitate to
contact me at [ext. #
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Attachment Attorney-Client Privileged
Prepared by the Office of Legal Support Do Not Release Under FOIA
Subpart C's "in the interests of EPA" and "clearly in the interests" of EPA
The purpose of the EPA regulations on EPA testimony 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 .iOt used for private purposes, and to establish procedures
for approving testimony or productions!" documents when clearly in the interests of EPA." 40
C.F.R. § 2.401(c). Section 2.402(a) provides that testimony requested by a state or local
government can be provided (with the approval or the Regional Administrator) where "it is in the
interests of EPA." Sections 2.402(5) and 2.403 >oro.vide that testimony requested by other parties
can be provided (with the approval of the General Counsel or his designee) where "it is clearly in
the interests of EPA."
The "in the interests of EPA"\ and "clearly in the interests of EPA" standards derive
from the intent of the Regulation. See, 50 Fed. Reg. 32386 (Preamble to regulations). This
intent is basically twofold:
• to ensure that EPA employees' time is spent on EPA business; and
• to avoid the appearance that EPA is taking sides in private litigation.
See, 50 Fed. Reg. 32386. Neither the Preamble to the rulemaking nor the Regulations themselves
actually define what is meant by "clearly in the interests of EPA" or "in the interests of EPA,"
however, the Preamble language suggests that defining a matter as "clearly in the interests of
EPA" or "in the interests of EPA," means that the two-fold intent of the regulation is being met
or effectuated.1 Id.
Determining whether "interests" exist such that the two-fold intent of the regulation is
met is necessarily a fact and case-specific inquiry. Some decision-makers make this "interest"
determination by analyzing whether or not the agency's mission would be furthered by providing
the testimony, Comsat Corp. v. National Science Foundation, 190 F3d. 269 (4th Cir. 1999), or
whether or not the agency needs to defend its reputation against charges of misconduct or
delay, Davis Enterprises v. U.S. E.P.A, 877 F.2d 1181 (3rd Cir. 1989). In either instance, such
characterizations of "interest" would appear to effectuate the intent of the regulations.
In Region 4, we have tied the concept of the use of agency employee time on private
litigation matters to the mission of the agency (i.e., whether the cumulative effect of providing a
witness significantly impedes EPA's mission) and stated that this tie-in is the "basis for our
1 Although at least one court has recognized (generally) that there is a distinction between "interests" and
"clearly in the interests," neither that case, Davis Enterprises v. U.S. E.P.A., 877 F.2d 1181, 1187 (3rd Cir. 1989),
nor the regulation itself provides guidance on the difference between the two phrases. It is arguably a difference
only in degree, with "clearly in the interest" requiring a more visible and articulated EPA interest. Given that no
"interests"-only cases have been uncovered, the use of "clearly in the interests" cases should be read as instructive.
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Attachment Attorney-Client Privileged
Prepared by the Office of Legal Support Do Not Release Under FOIA
'interests of EPA' standard for approving EPA employees' testimony." We have also noted that
providing official time for employees to testify may be perceived as a failure by EPA to maintain
impartiality among private litigants and that this also forms for the basis for our "clear interests
of EPA" standard. More commonly, however, the characterization of "interests" are tied directly
to the intent of the regulation (no mention of the mission of the agency). That is, the "interests"
are actually defined as (1) ensuring that EPA employees' time is spent on EPA business, and (2)
avoiding the appearance that EPA is taking sides in private litigation.2
2 By defining "interests" in this way, the implication is that no other EPA interest could be identified that
would ensure the effectuation of the intent of the regulations. That is, no other EPA interest could be identified that
would still ensure that an EPA employee's time is spent on EPA business and avoid the appearance of taking sides
in private litigation.
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ATTACHMENT #3
MEMORANDUM
SUBJECT: Request for Testimony Under 40 C.F.R. § 2.403
FROM: Mike McGhee, Director
Water Management Division
TO: Phyllis Harris
Regional Counsel
The Water Management Division does not consider the testimony of David Ariail, UST
Section, to be in the interests of EPA. It is our understanding that the suit is for claimed damages
caused by the release of hazardous substances from International Playing Card & Label
Company's (IPC&L) former underground storage tanks to the Horace Trent and Willie Trent
property (5 acre pasture). IPC&L requested access to the Trent's property for the purpose of
remediating the contamination. The Trents denied EPC&L access to their property for this
purpose. Denied access to the Trent's property is main limiting factor preventing remediation of
their property. There is no benefit to EPA to become involved in a damages suit.
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ATTACHMENT #4A
Ewell E. Eagan, Jr., Esq.
Gordon, Arata, McCollam & Eagan, L.L.P.
201 St. Charles Avenue
40th Floor
New Orleans, LA 70170-4000
SUB J: Request for Voluntary Testimony Pertaining to the Agrico Chemical Co. Superfund Site
Dear Mr. Eagan:
The purpose of this letter is to inform you that the United States Environmental
Protection Agency, Region 4 (EPA) has denied your request for the testimony of Mr. Ken Lucas,
the Remedial Project Manager (RPM), at the Agrico Chemical Co. Superfund Site (the Site).
In your letter dated April 5,1999, you requested that Mr. Lucas, an EPA employee,
provide testimony by deposition in a private litigation matter. Your letter explains that the
deposition would involve the EPA's "position" on various matters relating to the now-completed
remedial work at the Site, such as scheduling and extensions. Your letter states that certain
parties have made representations about these matters, and that Mr. Lucas' testimony would be in
EPA's interest because it would "clarify matters, finalize any dispute, and prevent any mistaken
representations relating to the EPA's official position on these matters."
Pursuant to EPA regulations at 40 C.F.R. Part 2, Subpart C, EPA employees are
prohibited from testifying about official matters, either voluntarily or in response to subpoenas,
in any proceeding in which the United States Government is not a party, unless authorized by the
General Counsel or his designee to do so. Pursuant to 40 C.F.R. § 2.403, such authorization will
only be granted where it is determined that compliance with the request would clearly be in the
interest of EPA. The purpose of these regulations is:
1. To ensure that employees official time is used only for official purposes;
2. To maintain the impartiality of EPA among private litigants; and
3. To ensure that public funds are not used for private purposes and to establish
procedures for approving testimony or production of documents when clearly in
the interests of EPA. [40 C.F.R. § 2.401(c)].
EPA has no direct interest in the pending litigation. The requested testimony would not
be consistent with the regulatory purpose set forth at 40 C.F.R. § 2.401(c), since the testimony
would appear to involve EPA in a purely private dispute. The reasons stated in your letter do not
indicate how the testimony would be consistent with these regulatory purposes, or clearly in the
interests of EPA.
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Based on the policy established in the regulations and the above circumstances of this
case, EPA concludes that the requested testimony in not clearly in the interests of the Agency.
EPA resources are severely limited. In this instance, it is the Region's determination that
providing this employee for the purpose of testifying in private litigation would constitute an
inappropriate diversion of EPA resources for private purposes.
If you have any questions concerning this matter, please contact Simon Miller of my staff
at (404) 562-9595.
Sincerely,
Phyllis Harris
Regional Counsel
cc: Ken Lucas
Curt Fehn
bcc: Nancy Tommelleo, EPA Region 4
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ATTACHMENT #4B
Oscar C. Carr, IH, Esquire
Glankler Brown
One Commerce Square
Seventeenth Floor
Memphis, Tennessee 38103
SUBJ: Request for Deposition Testimony by EPA Employees in North Hollywood Dump
Superfund Site Litigation
Dear Mr. Can:
The purpose of this letter is to provide a formal response to your request for deposition
testimony by EPA employees in the above-referenced litigation, expressed in your December 21,
1995 letter addressed to Kathy Urbach of this Office on behalf of your clients, the City of
Memphis and Velsicol Chemical Corporation. That letter, which followed the issuance of
deposition subpoenas naming seven current EPA Region 4 employees, outlines general subjects
on which you want testimony, and gives reasons why you believe the Agency should agree to
provide it. Ms. Urbach subsequently received a letter from attorney Vincent B. Stamp,
representing parties opposing your clients in this litigation, expressing opposition to any
arrangement you might make with EPA to limit the scope of these depositions, were they to go
forward.
As you have acknowledged, Agency regulations at 40 C.F.R. Part 2, Subpart C, govern
testimony by EPA employees on official matters, either voluntarily or in response to subpoenas,
in any proceeding to which the United States is not a party. The express 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 or production of
documents when clearly in the interests of EPA. 40 C.F.R. § 2.401(c).
To achieve this purpose, the regulations provide that employees of EPA may testify in
private actions only where the EPA General Counsel or his designee determines that their
testifying would "clearly be in the interests of EPA." 40 C.F.R. § 2.403. As Acting Regional
Counsel, I am that designee for determinations involving testimony by Region 4 employees.
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Following consultation with the employees named in the subpoenas and other Regional
personnel and after careful consideration of the issues and arguments raised in your letter, I am
unable to make the requisite determination that allowing these seven employees to provide
deposition testimony in this litigation would "clearly be in the interests of EPA." As I trust you
will agree, a very significant amount of official Agency time would necessarily be expended in
the course of providing the number of depositions you have sought, increased for this particular
litigation by the parties' inability to agree to meaningful limitations on the scope of inquiry. The
seven named employees currently occupy a range of important positions in this Region's Waste
Management Division - up to and including the Action Director of that Division - with
responsibilities for the remediation of a great number of hazardous waste sites, each of which as
the potential to spawn the same type of private party litigation for. which you now seek testimony.
Most of these employees have not dealt personally with the North Hollywood Dump site
in some time, and would be relying for their factual testimony on the information contained in
the written record of the case. That record has been and will continue to be fully available to all
parties to your litigation, with authentication available as provided at 40 C.F.R. § 2.406. To the
extent that you seek to elicit testimony involving expert and/or legal opinions, such as
conclusions about whether costs were "consistent with the NCP," testimony of this kind is
certainly available from non-Agency witnesses. Particularly in this period where budget
constraints require that Agency resources be devoted to high-priority activities, you have not
provided me with sufficient cause to conclude that the expenditure of employee time required to
comply with your request is justified under EPA regulations.
Accordingly, the Agency will not voluntarily be providing the deposition testimony you
have requested. Because Ms. Urback has recently left the Agency, I have asked Lawrence
Neville (404-347-3555, ext. 2266) to be the ORC attorney contact for any future communications
on this matter.
Sincerely,
William D. Anderson
Acting Regional Counsel
cc: Vincent B. Stamp, Esq.
bcc:
Nancy Tommelleo, EPA Region 4
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ATTACHMENT #4C
VIA FACSIMILE and
FIRST CLASS MAIL
W. Seaborn Jones, Esq.
Gleaton, Scofield, Egan & Jones
Promenade Two, Suite 2990
1230 Peachtree Street, N.E.
Atlanta, Georgia 30309
SUBJ: Edward S. Carder, Jr. and Amanda Leigh Carder v. Orkin Exterminating Company. Inc..
Civil Action No. 93VS0072389F
Request for Testimony of EPA Employee
Dear Mr. Jones:
The Office of Regional Counsel (ORC) acknowledges receipt of your request for the
deposition of Region 4, Environmental Protection Agency (EPA) employee Carlton Layne at the
state court proceeding referenced above. The request was made pursuant to EPA regulations.
Those regulations, located at 40 C.F.R. Part 2, Subpart C, permit EPA employees to testify
regarding official matters in a proceeding in which the United States Government is not a party if
authorized by the General Counsel or his designee under 40 C.F.R. § 2.403. The purpose of the
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 or production of
documents when clearly in the interests of EPA.
40 C.F.R. § 2.401(c). The Courts have recognized that regulations of this kind serve the
legitimate purpose of "conserving governmental resources where the United States is not a party
to the suit and ... minimizing government involvement in controversial matters unrelated to
official business." See Boron Oil v. Downie. 873 F.2d 67,73 (4"1 Cir. 1989). Moreover, in
United States ex rel. Toughv v. Ragen. 340 U.S. 462 (1951), the Supreme Court upheld the
validity of this kind of regulation.
We understand that the plaintiff in the litigation styled above was exposed to one or more
of three pesticides which the defendant had applied at the plaintiffs workplace; that the three
pesticides were Whitmire products, including 280 Orthene, D270 Dursban, and 565 Pyrethrin;
and that the use instructions on the labels of the product are in dispute. You have requested that
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Mr. Layne of EPA testify as to EPA's interpretation of the subject pesticide label instructions for
use.
As set out above, EPA employees may testify only where the General Counsel or his
designee determines that the testimony would "clearly be in the interest of EPA." I serve as the
designee of the General Counsel for testimony by employees in EPA Region 4. See 40 C.F.R.
§ 2. 403. In accordance with the regulations, I have consulted with the Regional Administrator
regarding this matter.
Under the circumstances of this case, we have determined that providing Mr. Layne
would be in the best interest of the EPA. Assuming the facts as set forth in your February 29,
1996 letter are true, EPA is concerned that a national pest control company may be interpreting
the use instructions on the pesticide labels of Whitmire's 280 Orthene, 270 Dursban, and 565
Pyrethrin to include the voids under desks and tables, and open floor spaces where people may be
unnecessarily exposed.
By copy of this letter, as the General Counsel's designee, I am advising Mr. Layne to
appear at a deposition as a witness in the proceeding described above for the limited purpose of
providing testimony concerning EPA's interpretation of the labels for the Whitmire pesticide
products 280 Orthene, 270 Dursban, and 565 Pyrethrin. Please contact Ms. Lynda Crum,
Assistant Regional Counsel at (404) 347-2641, extension 2134 to set up a mutually convenient
time.
Sincerely,
cc: John H. Hankinson, Jr.
Regional Administrator
Carlton Layne
Pesticides Section
William D. Anderson
Acting Regional Counsel
Office of Regional Counsel
bcc: Nancy Tommelleo, EPA Region 4
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ATTACHMENT #5
Content of federal court subpoena
Subpoenas generally are served on non-parties to an action, although parties may be
served with subpoenas. A federal court subpoena must:
• state the name of the court from which it is issued:
• state the title of the action, the name of the court in which it is pending, and its
civil action number,
• at a time and place specified therein, direct a person to attend and give testimony,
to produce and permit inspection and copying of designated books, documents or
tangible things in the possession or control of that person, or to permit inspection
of premises; and
• set forth the entire text of FRCP 45(c) (relating to protection of persons subject to
subpoenas) and FRCP 45(d) (relating to duties in responding to a subpoena).
Service of federal court subpoena
A subpoena may be served by any person who is not a party and who is at least 18 years
of age. Under FRCP 45(b)(1), personal delivery is the only means of service of a subpoena,
although recent case law has permitted service by certified mail. See Doe v. Hersemann, 155
F.R.D., 1994 U.S. Dist. LEXIS 7524 (N.D. Ind. 1994). The Practice Commentaries that
accompany FRCP 45 note that, should the servee disobey the subpoena on the basis of defective
service, a court is not likely to punish the disobedience; the defect is likely to be held
jurisdictional.
If a subpoena commands the servee's attendance, the server must tender to the servee fees
for one day's attendance and the travel mileage allowed by law. Prior notice of any commanded
production of documents and things or inspection of premises before trial must be served in
accordance with FRCP 5(b).
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Content of state court subpoena
In the following states, a state court subpoena must:
Alabama
• state the name of the court from which it is issued (ARCP 45(a)(1)(A));
• state the title of the action, the name of the court in which it is pending, and its
civil action number (ARCP 45(a)(1)(B));
• at a time and place specified therein, direct a person to attend and give testimony,
to produce and permit inspection and copying of designated books, documents or
tangible things in the possession or control of that person, or to permit inspection
of premises (ARCP 45(a)(1)(C)); and
• set forth the entire text of ARCP 45(c) (relating to protection of persons subject to
subpoenas) and ARCP 45(d) (relating to duties in responding to a subpoena)
(ARCP 45(a)(1)(D)).
Florida
• state the title of the action and the name of the court in which it is pending
(Fla.R.Civ.P. 1.410(b)(1)); and
• at a time and place specified therein, direct a person to attend and give testimony
or to produce designated books, papers, documents, or tangible things (Fla.R.
Civ.P. 1.410(b)(1), (c)).
Georgia
• state the title of the action and the name of the court in which it is pending.
(O.C.G.A. § 24-10-20(a)); and
• at a time and place specified therein, direct a person to attend and give testimony
or to produce designated books, papers, documents, or tangible things (O.C.G.A.
§§ 24-10-20(a), 24-10-22(a)).
Kentucky
• state the title of the action and the name of the court in which it is pending (Ky
CR 45.01); and
• at a time and place specified therein, direct a person to attend and give testimony
or to produce designated books, papers, documents, or tangible things (Ky CR
45.01,45.02).
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Mississippi
• state the title of the action and the name of the court in which it is pending
(M.R.C.P. 45(a)(1)); and
• at a time and place specified therein, direct a person to attend and give testimony
or to produce and permit inspection and copying of designated books, papers,
documents, or tangible things in the possession or control of that person, or to
permit inspection of premises (M.R.C.P. 45(a)(1)).
North Carolina
• state the title of the action and the name of the court in which it is pending, and
the name of the party at whose insistence the witness is summoned (N.C.Gen.Stat.
§ 1A-1, Rule 45(a)); and
• at a time and place specified therein, direct a person to attend and give testimony
or to produce designated books, papers, documents, or tangible things
(N.C.Gen.Stat. § 1A-1, Rules 45(a), (c))
South Carolina
• state the name of the court from which it is issued (S.C.R.C.P. 45(a)(1)(A));
• state the title of the action, the name of the court in which it is pending, and its
civil action number (S.C.R.C.P. 45(a)(1)(B));
• at a time and place specified therein, direct a person to attend and give testimony
or to produce and permit inspection and copying of designated books, papers,
documents, or tangible things in the possession or control of that person, or to
permit inspection of premises (S.C.R.C.P. 45(a)(1)(C));
• set forth the entire text of S.C.R.C.P. 45(c) (relating to protection of persons
subject to subpoenas) and S.C.R.C.P. 45(d) (relating to duties in responding to a
subpoena) (S.C.R.C.P. 45(a)(1)(D)).
Tennessee
• state the title of the action, the name of the court in which it is pending, and its
civil action number (Tenn.Civ.Proc.Rule 45.01); and
• at a time and place specified therein, direct a person to attend and give testimony
or to produce designated books, papers, documents, or tangible things (Tenn.
Civ.Proc.Rules 45.01, 45.02).
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Service of state court subpoena
Alabama
• the subpoena may be served by the sheriff, a deputy sheriff, or by any other person
who is not a party and who is at least 18 years of age (ARCP 45(b)(1)).
• service is by personal delivery or by leaving a copy at the person's dwelling house
3r usual place of abode with a person of suitable age and discretion (ARCP
45(b)(1)).
• if the subpoena commands the person's attendance at a place more than 100 miles
from the person's residence, the server must tender to the servee fees for one
day's attendance and the travel mileage allowed by law (ARCP 45(b)(1))
• prior notice of any commanded production of documents and things or inspection
of premises before trial must be served on each party in accordance with ARCP
5(b) (ARCP 45(b)(1)).
Florida
• the subpoena may be served by any person authorized by law to serve process or
by any other person who is not a party and who is at least 18 years of age
(Fla.R.Civ.P. 1.410(d)).
• service is by personal delivery or by mail (Fla.R.Civ.P. 1.070(a),(i)).
Georgia
• the subpoena may be served by any sheriff, by his deputy, or by any other person
who is at least 18 years of age (O.C.G.A. § 24-10-23).
• service is by personal delivery or by registered or certified mail, return receipt
requested (O.C.G.A. § 24-10-23).
• the witness fee is $10 per diem and must be accompanied by $0.20 per mile for
traveling expenses. When the subpoena is issued on behalf of the state, or a state
officer or agency, the fees and mileage need not be tendered (O.C.G.A. § 24-10-
24).
• a subpoena requiring the attendance of a witness at a hearing or trial may be
served at any place within the state (O.C.G.A. § 24-10-21).
Kentucky
• the subpoena may be served by any officer who may serve summons. It may also
be served by any person over eighteen years of age (Ky CR 45.03(1)).
• service is by personal delivery (Ky CR 45.03(1)).
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Mississippi
• the subpoena may be served by a sheriff, or by his deputy, or by any other person
who is not a party and who is at least 18 years of age (M.R.C.P. 45(c)(1)).
• service is by personal delivery (M.R.C.P. 45(c)(1)).
• the party issuing the subpoena must tender to the non-party witness at the time of
service the fee for one day's attendance plus travel mileage allowed by law, unless
the subpoena is issued on behalf of the State of Mississippi or a state officer or
agency (M.R.C.P. 45(c)(1)).
North Carolina
• the subpoena may be served by a sheriff, by his deputy, by a coroner, or by any
other person who is not a party and who is at least 18 years of age (N.C.Gen.Stat.
§ 1A-1, Rule 45(e)).
• service of a subpoena for the production of documents must be made by personal
delivery or by registered or certified mail, return receipt requested. Service of a
subpoena for the attendance of a witness may be made by telephone only by a
sheriff, his designee who is not a party and who is at least 18 years of age, or by
registered or certified mail, return receipt requested (N.C.Gen.Stat. § 1A-1, Rule
45(e)).
South Carolina
• the subpoena may be served by any person who is not a party and who is at least
18 years of age (S.C.R.C.P. 45(b)(1)).
• service is by personal delivery (S.C.R.C.P. 45(b)(1)).
• the party issuing the subpoena must tender to the non-party witness at the time of
service a fee for one day's attendance of $25 plus the travel mileage allowed by
law, unless the subpoena is issued on behalf of the State of South Carolina or a
state officer or agency (S.C.R.C.P. 45(b)(1)).
• prior notice of any commanded production or inspection before trial must be
served on each party in accordance with SCRCP 5(b) (S.C.R.C.P. 45(b)(1)).
Tennessee
• the subpoena may be served by any person who is not a party and who is at least
18 years of age (Tenn.Civ.Proc.Rule 4.01(2)).
• service is by personal delivery (Tenn.Civ.Proc.Rule 45.03).
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ATTACHMENT 6\
Mr. Mark Marion Akins
1553 Withmere Way
Atlanta, Georgia 30338-2842
SUBJ: Subpoena for Testimony Served on Kay Prince
The State v. Mark Marion Akins
Accusation #:220085
Dear Mr. Akins:
A subpoena, dated June 3, 1999, and issued by the State Court of Fulton County, Georgia,
was served on an Environmental Protection Agency (EPA or Agency) employee, Kay Prince.
The subpoena purports to require Ms. Prince to appear in the State Court of Fulton County,
Criminal Division, in Atlanta, Georgia to testify on your behalf on June 8, 1999.
EPA regulations at 40 C.F.R. Part 2, Subpart C govern compliance with such subpoenas
served on EPA employees in state court proceedings where the United States is not a party. This
subpart sets forth the procedures to be followed when an EPA employee is subpoenaed to
provide testimony about information acquired in the course of performing official duties. The
purpose of the 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 or production of
documents when clearly in the interest of EPA." [40 C.F.R. § 2.401(c)].
These concerns are extremely important to EPA because most of the Agency's studies,
inspections, regulatory actions, and similar activities deal with matters which may, and frequently
do, give rise to private litigation. Even though providing a witness for a few hours in one case
might not significantly impede our mission, the cumulative effect of such interruptions would be
very serious. Furthermore, providing official time for employees to testify may be perceived as a
failure by EPA to maintain impartiality among private litigants. These concerns provide the
basis for our "clear interests of EPA" standard for approving compliance with such subpoenas.
Therefore, under our regulations, employees may testify in state court matters where the
United States is not a party only when the General Counsel or his designee determines, after
careful consideration, that the testimony would clearly be in the interest of EPA. I serve as that
designee of the General Counsel in Region 4. See 40 C.F.R. § 2.404.
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Although the subpoena issued to Kay Prince contained no indication of the type of
testimony you seek in this matter, we understand, from several previous inquiries you have made
recently to the Region and from your most recent conversation with Nancy Tommelleo of my
staff on June 4, 1999, that you have sought a jury trial for a $75 traffic citation you received for
not coming to a full stop at a 4-way stop sign. You have indicated your belief that this particular
4-way stop sign is an unlawful speed trap and that you wish to use this case to show the adverse
air quality effects, of 4-way stop signs in general. The testimony you seek from Ms. Prince
involves EPA's determination of how much air pollution in Atlanta is caused by motor vehicles.
In view of the facts of this case as you have described them, we have determined that
providing Ms. Prince's testimony would not clearly be in EPA's interest. EPA Region 4 does not
keep or have information on how much emissions are generated from 4-way stop signs. Further,
we can discern no critical link between the testimony you seek from Ms. Prince (on how much
air pollution in Atlanta is caused by motor vehicles) and your fine for failing to come to a full
stop at a 4-way stop sign. Finally, we note that in previous telephone discussions with the
Region, you have requested information on how much emissions are generated from 4-way stops.
Although, as noted above, EPA does not keep this type of information, the Region did provide
you with other information on EPA requirements with regard to emissions from mobile sources.
These facts, taken as a whole, do not outweigh either EPA's need to ensure that Ms.
Prince's time is used only for official purposes or our need to maintain impartiality among
private litigants. If you have any questions about this matter, please contact Nancy Tommelleo,
of my staff, at 404-562-9571.
Sincerely,
Phyllis P. Harris
Regional Counsel
bcc: Nancy Tommelleo, EPA Region 4
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ATTACHMENT 6B
Wesley D. Tibbals, Esquire
Akerman, Senterfitt & Eidson, P.A.
Post Office Box 3273
Tampa, Florida 33601-3273
SUBJ: Subpoena for Production of Documents in the Matter of Lakeland Drum Service, Inc.
Dear Mr. Tibbals:
This is in response to the Subpoena for Request for Production of Documents in the
private litigation referenced above. On behalf of the Tampa Electric Company, you served a
subpoena requesting the production of documents dated December 4,2001, on the Custodian of
Records for Region 4. Specifically, you requested that EPA produce, by December 14, 2001, all
documents in EPA's control regarding Lakeland Drum Service, Inc. After careful consideration,
EPA hereby notifies you that your request is denied for the reasons discussed below.
Pursuant to EPA regulations at 40 C.F.R. Part 2, Subpart C, EPA employees are
prohibited from complying with subpoenas for documents or requests for testimony about official
matters, either voluntarily or in response to subpoenas, in any proceeding in which the United
States Government is not a party, unless EPA finds that to do so is clearly in the interests of the
Agency. 40 C.F.R, § § 2.403 - 2.405. The purpose of the 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 or production of
documents when clearly in the inf of EPA." [40 C.F.R. § 2.401(c)].
The concerns that Section 2.401(c) address are important to the Agency because of the
potential number of private lawsuits in which EPA could be subpoenaed to produce documents if
the regulations are not properly applied. The cumulative effect of providing EPA resources to
respond to broad-based subpoenas for private litigants in extremely tight time frames, or requests
for testimony, when EPA is not a party would constitute improper diversion of EPA resources for
private purposes.1 Private litigation which relates to EPA's activities is common, and private
litigants often seek documents and testimony from EPA nationwide.
1 See, Moore v. Armour Pharm. Co., 927 F.2d 1194 (11th Cir. 1991).
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In your subpoena dated December 4, 2001, you did not provide any reasons why
complying with this subpoena request would "clearly be in the interests of EPA" under Subpart
C.
An important part of EPA's analysis is to review EPA's role in the underlying dispute
between the parties. In this case, Lakeland Drum Service, Inc. is suing the Tampa Electric
Company. EPA is not a party to this litigation. It is difficult to see how complying with this
subpoena request for documents is an appropriate use of EPA time and resources or can be
considered "clearly in the best interests" of EPA.
Therefore, after careful consideration of the factors indicated above, I have determined
that complying with this subpoena would not be "clearly in the interests of EPA." Pursuant to
Section 2.405 of Subpart C, your subpoena will be treated as a request for documents under the
Freedom of Information Act (FOIA) and 40 C.F.R. Part 2, Subparts A and B. Based on your
recent telephone conversation with Lou Ann Gross of my staff, the documents will be provided
to you pursuant to the provisions of the FOIA. If you have any questions concerning this matter,
please contact Lou Ann Gross at (404) 562-9642.
Sincerely,
Phyllis P. Harris
Regional Counsel
bcc: Nancy Tommelleo, EPA Region 4
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ATTACHMENT #7
AUTHENTICATION
I, [name], attest that I am employed by the Environmental Protection Agency as the [example-
Superfund Records Coordinator], that I am responsible for maintaining the records of the
Superfund Records Management Program of EPA Region 4, and that the attached document is a
true, correct and compared copy of an official document in my legal custody, consisting of:
Agreement and Covenant Not to Sue in the Matter of ICG Iselin Railroad Yard
Superfund Site dated November 20,1997, EPA Docket Number 97-16-C
Subscribed under penalty of peijury on [date].
Name
Superfund Records Coordinator
EPA Region 4
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CERTIFICATION
I, Phyllis P. Harris, certify that I am Regional Counsel for the Environmental Protection Agency,
Region 4, in Atlanta, Georgia, and that the official whose signature appears on the authentication
has legal custody pursuant to 40 C.F.R. § 2.406, of the original document of which a copy is
attached, as witnessed by my signature and the official seal of the Environmental Protection
Agency which appear below.
Phyllis P. Harris
Regional Counsel
Dated:
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An Overview of Defensive Subpoena Practice
From A Government Perspective
Terry M. Henry
Federal Programs Branch— Civil Division
U.S. Department of Justice
February 2003
1.0 Introduction
With increasing frequency federal government employees are being called upon to
provide documents or testimony related to their duties in litigation in which the government is
not a party. The purpose of this paper is to familiarize government attorneys with basic issues
pertaining to the government's response to demands for evidence directed to agencies and
employees, including the role of so-called Touhy regulations. An understanding of these issues is
necessary because defensive subpoena matters are frequently time-sensitive, requiring quick
analysis and action. Further, an understanding of the issues can aid in the effective resolution of
defensive subpoena matters through negotiation.
The treatment of the issues herein is not an exhaustive analysis of the legal issues
involved. Further discussion of many of the issues may be found in the Department-of Justice
Civil Division Monograph, Touhy Regulations and Other Procedural Considerations IN
Defending Third-Party Subpoenas Against Federal Agencies and Employees (First
Edition April 1994) (second edition pending).
2.0 The Touhy Doctrine
Pursuant to 5 U.S.C. § 3011, the "Housekeeping Statute," many agencies have
promulgated so-called Touhy regulations regulating their employees' ability to respond to third-
party subpoenas for official information. These regulations typically prohibit the unauthorized
release of information by current (and sometimes former) agency employees, provide a procedure
for centralized agency decisionmaking concerning how the agency will respond to a subpoena or
other request for testimony or documents served on an agency employee, and provide a procedure
1 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.
5 U.S.C. §301.
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by which a subpoenaing litigant may obtain an agency decision. (A list of agency Touhy
regulations is contained in Appendix A.2)
The validity of such regulations was considered and upheld by the Supreme Court in
United States ex rel. Touhy v. Ragen, 340 U.S. "462 (1951). Touhy involved an FBI agent held in
contempt because, pursuant to a Department of Justice regulation, he refused to produce certain
documents subpoenaed by a state prisoner in a federal habeas corpus proceeding. The Supreme
Court affirmed the reversal of the contempt, concluding that the FBI agent's refusal to produce
documents in contravention of the DOJ regulation was lawful, and that the regulation
centralizing decisionmaking was a valid exercise of Executive authority under the predecessor of
the current Housekeeping Statute. Id. at 467-68. Thus, such regulations became known as Touhy
regulations.
Because centralization of decisionmaking is a valid function of Touhy regulations, several
principles follow:
First, a litigant must substantially comply with Touhy regulations prior to seeking
court relief regarding the production of evidence. See Davis v. Braswell Motor Freight Lines,
Inc., 363 F.2d 600,603 (5th Cir. 1966); Marcoux v. Mid-States Livestock, 66 F.R.D. 573, 575 n.l
(W.D. Mo. 1975); see also United States v. Bizzard, 674 F.2d 1382, 1387 (11th Cir.) (criminal
case; no error in court's decision to not compel testimony where defendant did not comply with
Touhy regulations), cert, denied, 459 U.S. 973 (1982). Hypertechnical compliance with Touhy
regulation procedures probably cannot be enforced, however. See F.A.C., Inc. v. Cooperativa De
Seguros De Vida, 188F.R.D. 181,185-86 (D.P.R. 1999). Whenever a litigant has failed to
comply with the applicable Touhy regulations or refuses to do so, however, a motion to quash the
subpoena for such noncompliance should be considered.
Second, and paramount, a court cannot compel an subpoenaed agency employee to
disobey applicable Touhy regulations or an agency decision made under such regulations.
Thus, a subpoena cannot be enforced against an employee constrained by Touhy regulations.
This is the foundation of the so-called Touhy doctrine. See, e.g., Touhy, 340 U.S. at 467-70;
Boron Oil Co. v. Downie, 873 F.2d 67,69-70 (4th Cir. 1989Xciting cases); Edwards v. United
States Dep't of Justice, 43 F.2d 312, 316-17 (7th Cir. 1994); In re Boeh, 25 F.3d 761, 763, 766-67
(9th Cir. 1994), cert, denied, 513 U.S. 1109 (1995).
Touhy regulations, however, cannot, in and of themselves, provide a privilege
justifying the withholding of documents or testimony. That is to say, an agency cannot
withhold evidence solely on the basis that 5 U.S.C. § 301 grants agencies authority to control
their documents and employees and that agency regulations promulgated pursuant to § 301
2The content and application of the Department of Justice Touhy regulations, 28 C.F.R.
§§ 16.21-.29, is discussed in § 1-6.000 of the United States Attorneys Manual (available on
Department of Justice Intranet).
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preclude disclosure of the evidence. This limitation is based on § 301 itself, which provides, in a
1958 amendment to the statute, that it "does not authorize withholding information from the
public or limiting the availability of records to the public." What Touhy regulations can do is
provide a procedure whereby an agency may decide whether it should comply with a demand for
testimony or documents; that is, whether, for example, any evidentiary privileges or statutory
requirements of privacy or confidentiality apply or any other legitimate reasons for withholding
exist. Thus, Touhy regulations can validly proscribe the release by agency employees of
documents or testimony, but they cannot grant an absolute freedom or privilege to the agency
itself to withhold the evidence. The regulations legitimately can prevent subordinate employees
from releasing documents or giving testimony so that any decision concerning disclosure of
evidence can be made by the designated decisionmaker. The decision made by that
decisionmaker, however, is subject to review, on the merits, by the courts. See In re Boeh, 25
F.3d 761,767 (9th Cir. 1994), cert, denied, 513 U.S. 1109 (1995). As discussed below, the
proper mechanism for reviewing an agency's decision under its regulations depends on whether a
subpoena is from a state or federal court, and, if from a federal court, the circuit in which the
court lies.
3.0 State Court Subpoenas
In addition to 7bufry-related defenses [i.e., (1) a litigant's failure to comply with Touhy
regulations, and (2) the unenforceability of a subpoena against the federal employee to which it is
directed], sovereign immunity and federal supremacy defenses are available with respect to state
court subpoenas. Also, removal of state subpoena proceedings is often available to enhance the
protection of federal employees and information.
Sovereign Immunity. A subpoena proceeding against a federal employee or agency to
obtain official information is an action the effect of which falls upon the government and seeks to
compel it to act. See Boron Oil Co. v. Downie, 873 F.2d 67, 69 (4th Cir. 1989). Accordingly, a
subpoena enforcement proceeding implicates sovereign immunity and is barred absent an
applicable statutory waiver. No such waiver exists in the typical state court subpoena matter
involving an Executive agency, thus, state courts lack the power to compel such agencies and
their employees to produce government records or other evidence. See id. at 71; Smith v.
Cromer, 159 F.3d 875, 879 (4th Cir. 1998), cert, denied, 528 U.S. 826 (1999); Louisiana v.
Sparks, 978 F.2d 226, 234-36 (5th Cir. 1992); Edwards v. United States Dep't of Justice, 43 F.3d
312, 317 (7th Cir. 1994); In re Elko County Grand Jury, 109 F.3d 554, 556 (9th Cir. 1997).
Supremacy Clause. Supremacy Clause (U.S. CONST, art. VI, cl. 2) considerations also
undercut a state court's authority to enforce subpoenas against federal agencies and officers.
Congress has expressly limited review of federal agency action to the federal courts in the
Administrative Procedure Act ("APA"). See 5 U.S.C. § 702. A state court's assertion of power
to decide whether a subpoena should be enforced is, effectively, an assertion of the power of
judicial review over a federal agency's decision concerning production of evidence. Such review
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"directly contravenes 5 U.S.C. § 702,"and thereby violates the Supremacy Clause. Boron Oil Co.
v. Downie, 873 F.2d 67, 71 (4th Cir. 1989).
Removal. One course of action to be considered when a federal employee or agency is
faced with a state court subpoena is removal of the subpoena matter to federal court. Removal
would be appropriate whenever the subpoenaed federal employee or agency is subjected to an
order or other device that portends liability or jeopardy in some way, or attempts to direct or
compel action. Thus, contempt proceedings, orders to show cause, and orders to produce
evidence are removable. See Boron Oil Co. v. Downie, 873 F.2d 67, 68 (4th Cir. 1989);
Louisiana v. Sparks, 978 F.2d 226,231 (5th Cir. 1992); Wisconsin v. Schaffer, 565 F.2d 961,962,
964 (7th Cir. 1977); Swett v. Schenk, 792 F.2d 1447,1449 (9th Cir. 1986). Prior to the occurrence
of such orders or proceedings, removal would be premature. See Indiana v. Adams, 892 F. Supp.
1101,1105 (S.D. Ind. 1995). Thus, motions in state court to quash or limit subpoenas are
appropriate in most circumstances. In the District of Columbia and Louisiana, however, a bare
subpoena, without more, is removable. See Brown & Williamson Tobacco Corp. v. Williams, 62
F.3d 408 (D.C. Cir. 1995); Louisiana v. Sparks, 978 F.2d 226, 232-33 (5th Cir. 1992).
Removals of subpoena proceedings are undertaken pursuant to 28 U.S.C. § 1442(a)(1).
The prerequisites for removal under § 1442(a) are that the case must be against a federal agency
or employee for conduct under color of the actor's office, with a colorable federal defense raised.
See Jefferson County, Alabama v. Acker, 527 U.S. 423,431 (1999). The subpoenaed
employee's duty to obey the agency Touhy regulation directive not to produce evidence; as well
as the government's sovereign immunity defense, meet these prerequisites. See Swett v. Schenk,
792 F.2d 1447,1450 (9lh Cir. 1986); Wisconsin v. Schaffer, 565 F.2d 961, 964 (7Ul Cir. 1977).
Only the subpoena proceeding, not the entire state court case, need be removed. See Boron Oil
Co. v. Downie, 873 F.2d 67, 68 (4th Cir. 1989); Swett v. Schenk, 792 F.2d 1447, 1450-51 (9th Cir.
1986). Generally, such removals need to be effected within 30 days of the matter becoming
removable. See 28 U.S.C. § 1446(b); butseeLofiin v. Rush, 767 F.2d 800, 805-06 (11th Cir.
1985) (30-day time limit for removal not binding with respect to assertion of sovereign immunity
defense), abrogation in part on other grounds recognized, Arial Drug Co. v. Recomm Int'l
Display, Inc., 122 F.3d 930, 933 (11th Cir. 1997).
Upon removal, the only proper action for the federal court to take is to quash the
subpoena, dismiss the contempt proceeding, vacate the order for production, or otherwise protect
the subpoenaed federal employee or agency. Under a § 1442(a) removal, a federal agency or
employee obtains a federal forum without a change in the substantive law applicable to the action
removed. Accordingly, the defenses precluding the state court from enforcing its subpoena also
preclude the federal court on removal from enforcing the subpoena. See Louisiana v. Sparks,
978 F.2d 226,234-36 (5th Cir. 1992); In re Elko County Grand Jury, 109 F.3d 554, 556-57 (9th
Cir. 1997). While a function of the removal statute itself, this concept has also been set forth in
terms of "derivative jurisdiction." See Smith v. Cromer, 159 F.3d 875, 879 (4,h Cir. 1998). But
compare North Dakota v. Fredericks, 940 F.2d 333, 336-38 (8th Cir. 1991) (due to 28 U.S.C.
§ 1441(e), derivative jurisdiction no longer applies to § 1442(a) removals), with Moreland v.
VanBuren GMC, 93 F. Supp. 2d 346,354-55 (S.D.N.Y. 1999) (§ 1441(e) does not prevent
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application of derivative jurisdiction to § 1442(a) removals). The only legitimate recourse for a
state court litigant that wants to obtain judicial review of an agency's decision not to produce
evidence or authorize an employee's production of evidence is a separate federal lawsuit under
the APA. See Smith v. Cromer, 159 F.3d 875, 881 (4th Cir. 1998), cert, denied, 528 U.S. 826
(1999); Louisiana v. Sparks, 978 F.2d 226, 236 n.18 (5th Cir. 1992); In re Elko County Grand
Jury, 109 F.3d 554, 556-57 (9th Cir. 1997).
4.0 Federal Court Subpoenas
Federal court subpoenas require the consideration, in tandem, of two areas of law: (1)
Touhy-related issues, and (2) Fed. R. Civ. P. 45 issues.
A threshold consideration that has recently been articulated as an issue is whether the
Federal Rules of Civil Procedure authorize third-party subpoenas against nonparty federal
agencies or employees. We have argued that the Rules do not authorize such subpoenas because
the term "person," as used in Fed. R. Civ. P. 45, does not include the federal government. See Al
Fayed v. CIA, 229 F.3d 272, 276 (D.C. Cir. 2000); Linder v. Calero-Portocarrero, 251 F.3d 178,
180-81 (D.C. Cir. 2001). A summary of this argument is contained in Appendix B.3 If the
Federal Rules do not authorize nonparty subpoenas against the government, a litigant's only
recourse to obtain evidence is to pursue either a request under the Freedom of Information Act, 5
U.S.C. § 552, or a request for evidence under the agency's Touhy regulations, with any final
agency decision under the Touhy regulations subject to APA review in a separate lawsuit against
the agency.
Because the argument concerning the applicability of Fed. R. Civ. P. 45 is essentially one
of statutory interpretation, it can be waived if it is not raised in district court. See Linder v.
Calero-Portocarrero, 251 F.3d 178, 181-82 (D.C. Cir. 2001). Accordingly, the issue should not
be omitted from objection letters or briefing pertaining to federal nonparty subpoenas unless an
affirmative decision to abandon the argument is made. Even where the issue is not abandoned,
because the argument is novel and potentially eyebrow-raising, it may not be appropriate to argue
the matter fully in every subpoena matter, as it could detract from other meritorious arguments.
In such circumstances, the point can be stated in a sentence or two and relegated to a footnote.
Even if the Rules do authorize such subpoenas, however, other substantial issues exist
with respect to federal subpoenas to federal agencies and employees. Touhy defenses [i.e., (1) a
litigant's failure to comply with Touhy regulations, and (2) the unenforceability of a subpoena
against the federal employee to which it is directed], apply with respect to federal subpoenas.
See United States ex rel. Touhy v. Ragen, 340 U.S. 462,468 (1951); In re Boeh, 25 F.3d 761,
763, 766-67 (9th Cir. 1994), cert, denied, 513 U.S. 1109 (1995); Davis v. Bras-well Motor Freight
Lines, Inc., 363 F.2d 600, 603 (5th Cir. 1966). Likewise, sovereign immunity is implicated by a
3 The argument was also discussed in the July 2002 issue of the United States Attorneys' USA
Bulletin (available on Department of Justice Intranet).
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federal subpoena. On this point, the Federal Rules do not waive sovereign immunity, see United
States v. Sherwood, 312 U.S. 584, 589-91 (1941), but application of the APA waiver of
sovereign immunity in federal subpoena proceedings must be considered.
It is our position, consistent with the Touhy doctrine and principles of sovereign
immunity, that typical third-party subpoenas issuing out of federal court and directed to agency
employees prohibited by regulation from complying with the subpoenas without authorization,
should be quashed regardless of the merits of the withholding of evidence. Because under the
Touhy doctrine such subpoenas cannot be enforced against the employees to whom they are
directed, the subpoenas should be quashed. To obtain judicial review of the merits of the
withholding of evidence, a litigant should be required to proceed directly against the agency
involved via an APA lawsuit See In reBoeh, 25 F.3d 761,764-65 (9th Cir. 1994), cert, denied,
513 U.S. 1109 (1995). Even aside from these Touhy doctrine considerations, an independent
APA lawsuit should be required because under the APA (which is the only applicable waiver of
sovereign immunity) subpoena enforcement proceedings are not "actions" within the meaning of
the sovereign immunity waiver contained in 5 U.S.C. § 702/ Such proceedings are not sufficient
to commence an "action"; rather, they are ancillary discovery devices that presuppose that an
action has already been commenced. Cf. Fogg v. Ashcroft, 254 F.3d 103,107-08 (D.C. Cir.
2001) (Federal Rules of Civil Procedure describe "action" or "civil action" as all claims for relief
in a single lawsuit). Further, characterizing subpoena enforcement proceedings as within the
APA's waiver of sovereign immunity presents difficulties with respect to obtaining appellate
review since an adjudication of contempt and imposition of a sanction is typically required to
obtain review of an adverse subpoena enforcement order. Such a requirement is inconsistent not
only with the Touhy doctrine (which prohibits contempt against a subpoenaed employee), but
with the scheme for orderly review of routine administrative actions set out in the APA. It is also
our view that in any APA review of an agency's decision concerning a response to a subpoena,
the deferential standard of review under 5 U.S.C. § 706 should apply.
While the position described above constitutes our preferred approach, and should be
argued whenever possible in the exercise of good judgment and discretion, courts in various
circuits have taken varying approaches to judicial review of responses to subpoenas to federal
agencies and employees:
45 U.S.C. § 702, entitled "Right of review," provides, in part, that
A person suffering legal wrong because of agency action, or adversely affected or
aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial
review thereof. An action in a court of the United States seeking relief other than money
damages and stating a claim that an agency or an officer or employee thereof acted or
failed to act in an official capacity or under color of legal authority shall not be dismissed
nor relief therein be denied on the ground that it is against the United States or that the
United States is an indispensable party.
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"S" U.S. Environmental Protection Agency v. General Electric Co., 197 F.3d 592 (2nd Cir.
1999), modified in part, 212 F.3d 689 (2nd Cir. 2000) (subpoena enforcement proceeding
against agency decisionmaker falls within APA waiver of immunity; independent lawsuit
not required; applicable standard of review not decided).
^ COMSAT Corp. v. National Science Foundation, 190 F.3d 269 (4th Cir. 1999) (APA is
sole avenue of review of agency decision regarding subpoena compliance; deferential
APA standard of review applies; court was not required to decide whether independent
APA lawsuit required).
Exxon Shipping Co. v. U.S. Dep't of Interior, 34 F.3d 774 (9th Cir. 1994) (court can
review and enforce under federal discovery rules nonparty subpoenas against federal
agencies and employees; plenary standard of review under Federal Rules applies). But
see In re Boeh, 25 F.3d 761 (9lh Cir. 1994) (subpoena directed to agency employee cannot
be enforced; separate APA or mandamus suit against agency required to obtain review of
agency withholding decision), cert, denied, 513 U.S. 1109 (1995). Boeh was decided
before Exxon.
"sr Moore v. Armour Pharmaceutical Co., 927 F.2d 1194 (1 llh Cir. 1991) (subpoena
enforcement proceeding against agency employee falls within APA waiver of immunity;
deferential APA standard of review applies).
^ Linder v. Calero-Portocarrero, 251 F.3d 178 (D.C. Cir. 2001) (Fed. R. Civ. P. 45
proceeding concerning subpoena for documents falls within APA's waiver of immunity,
plenary standard of review under Federal Rules applies). Compare Houston Business
Journal, Inc. v. OCC, 86 F.3d 1208 (D.C. Cir. 1996) (dicta) (litigant desiring to compel
testimony of federal employee must proceed under APA; APA standard of review
applies).
See also:
"3* NLRB v. Capitol Fish Co., 294 F.2d 868 (5* Cir. 1961) (indicating that court can review
under federal discovery rules agency withholding decision in subpoena proceeding
against agency employee; case is distinguishable as one in which the agency was a party-
plaintiff, see infra § 4.2).
^ In re Bankers Trust, 61 F.3d 465 (6th Cir. 1995) (indicates court will follow Exxon and
Capitol Fish; the cases is distinguishable based upon its facts, which involved federal
banking agency instructing private bank to disobey a court order), cert, dism 'd, 517 U.S.
1205 (1996).
*3* Saunders v. Great Western Sugar Co., 396 F.2d 794 (10th Cir. 1968) (subpoena directed
to agency employee cannot be enforced; subpoena proceeding against agency
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decisionmaker required). The Saunders decision predates the 1976 enactment of the
APA's waiver of sovereign immunity.
4.1 Fed. R. Civ. P. 45 Procedures
The issues discussed above must often be coordinated with procedural and other
considerations under Fed. R. Civ. P. 45. Under Fed. R. Civ. P. 45 , if a subpoena is for
documents, the subpoenaed party must submit any objections (usually in a letter to the
subpoenaing attorney, depending on local rules) within 14 days of service or by the return date, if
sooner. The onus is then on the subpoenaing party to negotiate further or move to compel. See
Fed. R. Civ. P. 45(c)(1)(B). If a subpoena is for a deposition, the onus is on the subpoenaed
party to file any motion to quash or for a protective order in a "timely" manner. See Fed. R. Civ.
P. 45(c)(3), 26(c). 'Timely" is usually interpreted to mean 14 days from service or before the
return date, absent circumstances justifying a delay. A subpoena duces tecum usually can safely
be treated like a subpoena for documents when it is clear that no testimony is being sought except
with respect to authentication of the requested documents (e.g., the subpoena is directed to a
document custodian).
Also, with respect to subpoena duces tecum and deposition subpoenas, where a requisite
Touhy authorization to produce documents or testify is not forthcoming, sometimes having to file
a motion to quash can be avoided in a couple of ways. First, an objection letter can be sent
noting (1) that no authorization to appear and testify has been given; (2) that an appearance by
the subpoenaed employee would be futile because the employee could not answer any questions;
and (3) that the employee, therefore, will not appear for the deposition. Second, the employee
could appear with counsel (you) and refuse to answer questions due to the absence of the
appropriate Touhy regulation authorization. Both of these scenarios leave it up to the
subpoenaing party to move to compel the requested testimony. All matters of non-appearance,
however, should be discussed with the subpoenaing party beforehand in an attempt to arrange an
orderly process for litigating, negotiating, or otherwise handling a contested subpoena matter and
to avoid unnecessary motions for contempt or sanctions. Further, the choice between devices
such as these and just moving to quash are tactical considerations, and an appropriate choice will
depend on the circumstances of the case.
Reasons for objecting or moving to quash or for a protective order are varied. They
include the nonapplicability of Fed. R. Civ. P. 45 [see supra]-, the failure of a litigant to comply
with agency Touhy regulations; lack of jurisdiction by the court issuing the subpoena [see, e.g.,
FED. R. Civ. P. 45(a)(2), (b)(2)]; improper service [compare FTC v. Compagnie De Saint-Gobain-Pont-A-
Mousson, 636 F.2d 1300,1312-13 (D.C. Cir. 1980) (dicta) (personal service required), with Doe v. Hersemann, 155
F.R.D. 630,630-31 (N.D.Ind. 1994) (certified mail constitutes personal service required by Rule 45)]; Privacy
Act and Trade Secrets Act constraints [see Doe v. DiGenova, 779 F.2d 74, 85 (D.C. Cir. 1985) (subpoena is
not an order of a court relieving agency of Privacy Act constraints)]; overbreadth; undue burden of
compliance; privileges; and other reasons that may be mentioned in any agency decision made
under its Touhy regulations.
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The agency's decision under its Touhy regulations concerning whether to authorize
testimony or the production of documents is most often a document separate from'a Rule 45
objection letter (which can come before or after the Touhy process is complete), although the two
can overlap in content.
4.2 Subpoena And Touhy Issues When The Federal Government Is A Party
When an agency is a party to a case, an agency official akin to an officer, director,
managing agent, or other person regarded as speaking for the agency, typically can be deposed by
notice. By contrast, a deposition of other employees not regarded as speaking for the agency
usually must be obtained by subpoena. Cf. Cleveland v. Palmby, 75 F.R.D. 654, 656 (W.D. Okla.
1977). Further, many agency Touhy regulations purport to apply when the government is a party.
Thus arises the issue of how Touhy regulations may apply to discovery attempts in cases in which
an agency is a party.
As a general matter, the waiver of sovereign immunity that permits the government to be
named as a party to a case subjects the government to the Federal Rules of Civil Procedure the
same as a private litigant. See United States v. Procter & Gamble Co., 356 U.S. 677, 681 (1958).
Accordingly, Touhy regulations cannot apply in such cases in a manner inconsistent with the
government's obligations under the Federal Rules. This means that procedural,requirements
imposed by Touhy regulations on litigants seeking employee testimony cannot be enforced to the
extent they are inconsistent with discovery procedures under the Federal Rules. See McElya v.
Sterling Medical, Inc., 129 F.R.D. 510,513-15 (W.D. Tenn. 1990) (criticizing government's
attempt to apply Touhy regulations in Federal Tort Claims Act case). Further, in a case where an
agency is a party, the agency cannot oppose discovery of one of its employees merely by refusing
to authorize the employee to testify and arguing that such refusal ends the matter since the
employee cannot be compelled to disobey the agency's refusal. In such a situation, the agency
must oppose the discovery, if at all, on grounds permitted under the Federal Rules (privilege,
burden, etc.); the basis of the opposition should not be a Touhy defense. See United States ex rel.
v. Roby v. The Boeing Co., 189 F.R.D. 512, 517-18 (S.D. Ohio 1999) (when government is party-
litigant, it is bound by federal discovery rules; Touhy regulations cannot trump federal rules to
prohibit testimony by former employee; however,- government may raise legitimate evidentiary
privileges and other substantive objections in response to attempt to compel testimony of former
agency employee).
On the other hand, when one agency is named as a party and otherwise permissible
discovery is sought from some other agency that is not a party to the case, it is possible to argue
that the non-party agency should be treated as a non-party for purposes of discovery, thus
permitting application of that agency's Touhy regulations. The grounds for such an argument
would be that the party-agency cannot exercise control over the non-party agency. The argument
may be rejected, however, when the non-party agency is extensively involved in the matter being
litigated or when the "United States" is named as a party. See Alexander v. FBI, 186 F.R.D. 66,
69-70 (D.D.C. 1998).
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Independent Executive agencies present a special case. Unless named as a party, an
independent Executive agency may be treated as a non-party for purposes of discovery, thus
permitting application of agency Touhy regulations, even in suits in which the United States is a
party. See In re Air Crash at Dallas/Fort Worth Airport on August 2, 1985, 117 F.R.D. 392, 393
(N.D. Tex. 1987) (in tort suit against the United States, National Transportation Safety Board is a
non-party for purposes of discovery).
Qui tarn cases are treated as cases in which the government is not a party for purposes of
applying Touhy regulations, unless and until the government intervenes or otherwise becomes a
party. See United States ex rel. Lamers v. City of Green Bay, 924 F. Supp. 96, 97-98 (E.D. Wis.
1996).
5.0 Proceedings Under The APA Seeking Review Of An Agency's Touhy
Regulation Decision
As explained supra, APA review of an agency's decision made under its Touhy
regulations is available, with respect to a federal court subpoena, in a subpoena proceeding or an
independent lawsuit, and, with respect to a state court subpoena, in an independent lawsuit.
Some example cases:
Edwards v. DO J, 43 F.3d 312 (7th Cir. 1994);
Moore v. Armour Pharmaceutical Co., 129 F.R.D. 551 (N.D. Ga. 1990), affd, 927 F.2d
1194(lllhCir. 1991);
COMSAT Corp. v. National Science Foundation, 190 F.3d 269,277-788 (4th Cir. 1999);
Davis Enterprises v. United States Environmental Protection Agency, 877 F.2d 1181 (3rd
Cir. 1989), cert, denied, 493 U.S. 1070 (1990);
Clearly, Gottlieb, Steen & Hamilton v. Department of Health and Human Services, 844 F.
Supp. 770 (D.D.C. 1993).
Most of these APA review cases involve a balancing of agency interests, public interests,
and the interests of the litigant seeking information, with deference being given the agency under
the APA standard of review, see 5 U.S.C. § 706.
In preparation for ultimate APA review, an agency, in considering a request made under
agency Touhy regulations, should be guided in establishing an informal record, usually consisting
of, at least, (1) correspondence between the agency and litigant concerning a request; (2) an
agency decision; and (3) pertinent materials considered by the agency in reaching its decision.
Further, the agency should be reminded that its decision should contain all possible grounds
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justifying the decision so as not to preclude any arguments in litigation over the request. Indeed,
a reviewing court bases its review upon the record that was before the agency at the time the
agency decision was made, and the court cannot sustain an agency's decision on a basis other
than that relied upon by the agency. An agency, therefore, cannot rely upon post hoc
rationalizations in defending its decision in court. See Citizens to Preserve Overton Park v.
Volpe, 401 U.S. 402,419-20 (1971). Though post hoc rationalizations are not permitted, an
agency, where necessary, can provide material that explains the agency's decision. See, e.g.,
Moore v. Armour Pharmaceutical Co., 129F.R.D. 551 (N.D. Ga. 1990) (where agency declined
to authorize testimony due to potential cumulative effect of granting testimony requests, agency
submitted declarations in court explaining the number of similar requests for testimony received
in prior years), ajf'd, 927 F.2d 1194 (11th Cir. 1991).
6.0 Basic Steps To Be Taken When Confronted With A Third-Party
Subpoena Directed To A Federal Employee
Coordinate with agency counsel and review agency Touhy regulations.
If a litigant has not complied with applicable Touhy regulations, attempt to obtain
compliance. Once the litigant complies, assist agency in negotiating with the subpoenaing party,
developing an informal administrative record, and crafting an agency decision defensible under
the applicable standard of review.
If a litigant refuses to comply with basic Touhy regulation requirements, consider filing a
motion to quash the subpoena for such non-compliance.
If an employee is authorized by the agency to testify, assist the employee in deposition.
Enforce the scope of the authorization through directions to employee. [In some circumstances,
an agency counsel will represent the employee in deposition, and the matter will not come to
DOJ until litigation is imminent.] Defend the employee in any motion to compel or contempt
proceedings.
If the subpoena will be opposed:
If a state court subpoena is at issue, consider a motion to quash based on the
Touhy doctrine, sovereign immunity, federal supremacy, and relevant merits grounds (if
the agency Touhy decision has been made). Alternatively, decline to comply with the
subpoena and oppose any motion to compel.
If a state court initiates contempt proceeding or orders compliance with subpoena,
remove subpoena proceeding to federal court. (A bare subpoena may be removed in
Louisiana and the District of Columbia.) Seek to have the subpoena quashed and the
state court order set aside.
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If a federal court subpoena is at issue, submit objections to document requests
within 14 days of service or before return date. When necessary, move to quash a
testimony subpoena in a timely manner. Otherwise, determine method of review
employed in your Circuit, and proceed accordingly.
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Appendix A
Agency Touhy Regulations
AGENCY FOR INTERNATIONAL DEVELOPMENT, 22 C.F.R. Part 206
AGRICULTURE, 7 C.F.R. §§ 1.210-.219
AIR FORCE, Instruction AFI51-301, Chapter 9 (01 July 2002) (available in "Law" section of
"Master Catalog" at http://afjpubs.hq.af.mil)
ARMY, 32 C.F.R. Part 516
BUREAU OF ALCOHOL, TOBACCO & FIREARMS, formerly 27 C.F.R. § 70.803,
now see JUSTICE
CENTRAL INTELLIGENCE AGENCY, 32 C.F.R. Part 1905
CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD, 40 C.F.R. § 1611.1-.10,
§ 1612.1-.5
COAST GUARD, 33 C.F.R. § 1.20, see also HOMELAND SECURITY
COMMERCE, 15 C.F.R. §§ 15.11-.18
COMMISSION ON CIVIL RIGHTS, 45 C.F.R. § 704.4
COMMODITY FUTURES TRADING COMMISSION, 17 C.F.R. §§ 144.0-.6
COMPTROLLER OF THE CURRENCY, 12 C.F.R. §§ 4.31-.40
CONSUMER PRODUCT SAFETY COMMISSION, 16 C.F.R. Part 1016
CORPORATION FOR NATIONAL AND COMMUNITY SERVICE, 45 C.F.R. §§ 1201.l-.il
CUSTOMS SERVICE, 19 C.F.R. §§ 103.21-.27, see also HOMELAND SECURITY
DEFENSE, 32 C.F.R. Part 97
DEFENSE NUCLEAR FACILITIES SAFETY BOARD, 10 C.F.R. §§ 1707.101-.401
EDUCATION, 34 C.F.R. §§ 8.1-.5
ENERGY, 10 C.F.R. §§ 202.21-.26
ENVIRONMENTAL PROTECTION AGENCY, 40 C.F.R. §§ 2.401-.406
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 29 C.F.R. §§ 1610.30-.36
EXECUTIVE OFFICE OF THE PRESIDENT (OFFICE OF ADMINISTRATION),
5 C.F.R. §§ 2502.30-.33
EXPORT-IMPORT BANK OF THE UNITED STATES, unpublished
FARM CREDIT ADMINISTRATION, 12 C.F.R. §§ 602.17-.24
FEDERAL COMMUNICATIONS COMMISSION, 47 C.F.R. § 0.463
FEDERAL AVIATION ADMINISTRATION, 14 C.F.R. Part 185
FEDERAL DEPOSIT INSURANCE CORP., 12 C.F.R. Part 309
FEDERAL EMERGENCY MANAGEMENT AGENCY, 44 C.F.R. §§ 5.80-.89,
see also HOMELAND SECURITY
FEDERAL ENERGY REGULATORY COMMISSION, 18 C.F.R. § 388.111
FEDERAL FINANCIAL INSTITUTIONS EXAMINATION COUNCIL, 12 C.F.R. § 1102.307
FEDERAL HOUSING FINANCE BOARD, 12 C.F.R. Part 911
FEDERAL LABOR RELATIONS AUTHORITY, 5 C.F.R. § 2411.11
FEDERAL MEDIATION & CONCILIATION SERVICE, 29 C.F.R. §§ 1401.1-3
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FEDERAL RESERVE SYSTEM, 12 C.F.R. Part 261
FEDERAL RETIREMENT THRIFT INVESTMENT BOARD, 5 C.F.R. §§ 1631.30- 33
FEDERAL TRADE COMMISSION, 16 C.F.R. § 4.11(e)
FOOD AND DRUG ADMINISTRATION, 21 C.F.R. §§ 20.1-.3
FOREIGN SERVICE LABOR RELATIONS BOARD, 22 C.F.R. § 1411.11
GENERAL SERVICES ADMINISTRATION, 41 C.F.R. §§ 105-60.601-.608
HEALTH AND HUMAN SERVICES, 45 C.F.R Part 2
HOMELAND SECURITY, 6 C.F.R. §§ 5.41-.49
HOUSING AND URBAN DEVELOPMENT, 24 C.F.R. Part 15
HOUSING AND URBAN DEVELOPMENT (OFFICE OF FEDERAL HOUSING
ENTERPRISE OVERSIGHT), 12 C.F.R. §§ 1710.3l-.40
HOUSING AND URBAN DEVELOPMENT (OFFICE OF INSPECTOR GENERAL),
24 C.F.R. §§ 2004.20-.29
INTERIOR, 43 C.F.R. §§ 2.80-.90
INTERNAL REVENUE SERVICE, 26 C.F.R. § 301.9000-1
INTERNATIONAL TRADE COMMISSION, 19 C.F.R. § 201.21
INTERSTATE COMMERCE COMMISSION, unpublished administrative issuance
JUSTICE, 28 C.F.R. §§ 16.21-.29
LABOR, 29 C.F.R. §§ 2.20-.25
LIBRARY OF CONGRESS, 36 C.F.R. §§ 703.15-.22
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, 14 C.F.R. Part 1263
NATIONAL COUNTERINTELLIGENCE CENTER, 32 C.F.R. § 1805.4
NATIONAL CREDIT UNION ADMINISTRATION, 12 C.F.R. §§ 792.40-49
NATIONAL INDIAN GAMING COMMISSION, 25 C.F.R. §§ 516.1-.4
NATIONAL LABOR RELATIONS BOARD, 29 C.F.R. § 102.118
NATIONAL MEDIATION BOARD, 29 C.F.R. § 1208.7
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, 15 C.F.R. Part 909
NATIONAL SCIENCE FOUNDATION, 45 C.F.R. §§ 615.1-.7
NATIONAL SECURITY AGENCY/CENTRAL SECURITY SERVICE, 32 C.F.R. Part 93
NATIONAL TRANSPORTATION SAFETY BOARD, 49 C.F.R. Part 835
NAVY, 32 C.F.R. Part 725
NUCLEAR REGULATORY COMMISSION, 10 C.F.R. §§ 9.200-.204
OFFICE OF GOVERNMENT ETHICS, 5 C.F.R. §§ 2608.101-.401
OFFICE OF MANAGEMENT AND BUDGET, 5 C.F.R. §§ 1305.1-.5
OFFICE OF PERSONNEL MANAGEMENT, 5 C.F.R. § 297.402
OFFICE OF THRIFT SUPERVISION, 12 C.F.R. §§ 510.4-.5
OVERSEAS PRIVATE INVESTMENT CORPORATION, 22 C.F.R. §§ 713.1-.10
PATENT AND TRADEMARK OFFICE, 37 C.F.R. §§ 104.21-.29
POSTAL SERVICE, 39 C.F.R. §§ 265.11-.13
PENSION BENEFIT GUARANTY CORP., 29 C.F.R. §§ 4905.1-.6
RAILROAD RETIREMENT BOARD, 20 C.F.R. § 200.8
SECURITIES AND EXCHANGE COMMISSION, 17 C.F.R. §§ 230.122, 240.0-4
SMALL BUSINESS ADMINISTRATION, 13 C.F.R. § 102.12
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SOCIAL SECURITY ADMINISTRATION, 20 C.F.R. §§ 403.100-. 155
STATE, 22 C.F.R. Part 172
TRANSPORTATION, 49 C.F.R. Part 9
TREASURY, 31 C.F.R. §§ 1.8-.12
VETERANS AFFAIRS, 38 C.F.R. § 14.800-.810
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Appendix B
Fed. R. Civ. P. 45 Does Not Authorize Third-Party
Subpoenas to Federal Entities And Employees
Federal Rule of Civil Procedure 45 provides that a subpoena may be directed to a
"person." The term "person," however, does not include the sovereign "absent affirmative
evidence of such an inclusory intent."' Al Fayed v, CIA, 229 F.3d 272,274 (D.C. Cir. 2000)
(interpreting 28 U.S.C. § 1782 as not permitting discovery against Federal Government). This is
a long-standing rule of statutory interpretation. See Al Fayed, 229 F.3d at 275. Thus, Rule 45
would not include within the scope of proper subpoena recipients Government agencies or their
employees (since subpoenas to employees essentially compel the Government to act) absent
affirmative evidence that the Government was meant to be included. See id. at 276 (questioning
whether Government is "person" within meaning of FED. R. Civ. P. 45).
No such affirmative evidence exists with respect to the use of "person" in Rule 45, when
the Government is not a party to the case.1 Rule 45 itself does not mention the Government as a
proper non-party witness.3 The Advisory Committee notes on the rule also fail to mention the
Government as a proper non-party witness.
The term "governmental agency" is used in the context of discovery in FED. R. Crv. P, 30,
but the evidence with respect to that rule fails to compel a conclusion that Rule 45 includes the
Federal Government as a proper subpoena recipient. Rule 30(a)(1) indicates that persons subject
to deposition under the Federal Rules include non-parties and provides that witnesses may be
subpoenaed for deposition under Rule 45. In addition, Fed. R. Crv. P. 30(b)(6) provides, in its
first sentence, that a subpoena may name a "governmental agency" and, in its third sentence, that
'See also International Primate Protection League v. Administrators ofTulane Educational
Fund, 500 U.S. 72, 82-83 (1991) (the "conventional reading of 'person' may... be disregarded
if '[t]he purpose, the subject matter, the context, the legislative history, [or] the executive
interpretation of the statute... indicate an intent* by the use of the term, to bring state or nation
within the scope of the law'") (quoting United States v. Cooper Corp., 312 U.S. 600, 604-05
(1941)).
2When the Government is a party to a case, however, there is reason to believe that Congress,
in waiving sovereign immunity to permit the suit, and the Supreme Court, in adopting the Federal
Rules of Civil Procedure, intended that the rules, as a general matter, apply to the Government.
See Al Fayed v. CIA, 229 F.3d 272,276 (D.C. Cir. 2000); United States v. Procter & Gamble
Co., 356 U.S. 677, 681 (1958) (governmental entity as a party litigant is subject to the rules of
discovery to same extent as any other litigant).
3The Dictionary Act, 1 U.S.C. § 1, defines the term "person" in any act of Congress as
including individuals, corporations, companies, associations, firms, partnerships, societies, and
joint stock companies, "unless the context indicates otherwise."
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such an agency may be a non-party ("A subpoena shall advise a non-party organization of... .")•
Thus, Rule 30(b)(6) arguably suggests that subpoenas may name non-party governmental
agencies. Nonetheless, this does not require that the term "person" in Rule 45 include non-party
federal agencies, for several reasons. Rule 30(b)(6) establishes a special procedure for a narrow
circumstance, that of obtaining testimony given on behalf of an organizational entity by an
individual designated by the entity. It is a procedure that applies both to otherwise proper party
depositions (i.e., those conducted by "notice") and non-party depositions (i.e., those conducted
by subpoena) and permits a specific type of "naming" to go on in the notice or subpoena- that of
naming an organization versus a specific individual. Prior to the addition of Rule 30(b)(6) in
1970, some courts had determined that the litigant seeking a deposition could not put the burden
on an organization to decide who would appear on behalf of the organization. See Fed. R. Civ.
P. 30(b)(6) advisory committee note (1970). The purpose of Rule 30(b)(6) was to obviate
difficulties experienced by litigants in designating the appropriate organization officer for
deposition, including situations in which specific officers were deposed in turn, with each
disclaiming personal knowledge of facts clearly known to persons in the organization and thereby
to the organization itself. Id. Thus, the Rule was not intended and should not be understood as
extending the reach of Rule 45; rather, it merely permitted a new naming practice with respect to
subpoenas otherwise proper under Rule 45. Further, because Rule 30(b)(6) was not adopted until
1970, more than 30 years after Rule 45, Rule 30(b)(6) can say nothing about the intent of the
drafters of Rule 45 with respect to the reach of the term "person."
In addition, interpreting Rule 45's reach as having been extended to Federal Government
entities by Rule 30(b)(6) in a context in which the Government is not a party-litigant, would be
inconsistent with Fed. R. Civ. P. 82, which provides that the Federal Rules of Civil Procedure
"shall not be construed to extend or limit the jurisdiction of the United States district courts."
See also 28 U.S.C. § 2072 (rules of procedure and evidence "shall not abridge, enlarge or modify
any substantive right"). Given that a subpoena directed to the nonparty Government would
implicate sovereign immunity concerns, see COMSAT Corp. v. National Science Foundation,
190 F.3d 269, 274,277 (4th Cir. 1999), and that no waiver of sovereign immunity including
subpoena proceedings against the Government existed at the time of the adoption of Rule
30(b)(6) in 1970, construing Rule 30(b)(6) as permitting, or extending Rule 45 to permit, such
subpoenas arguably would have run afoul of Rule 82.
In any event, to the extent that any ambiguity concerning the reach of Rule 45 exists
because of Rule 30(b)(6), such ambiguity should be considered just that, ambiguity, and not
sufficient "affirmative" evidence of intent to include the sovereign within the scope of proper
subpoena recipients under Rule 45.
It as discussed, Fed. R. Civ. P. 45 does not include the non-party Federal Government as
a proper subpoena recipient, a federal litigant is not without other options for obtaining
information from the Government. The litigant may pursue document disclosure under the
Freedom of Information Act, 5 U.S.C. § 552. The litigant may also seek information under an
agency's Touhy regulations, with any final agency decision under the regulations subject to APA
review in a separate lawsuit against the agency in federal court.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
ATLANTA FEDERAL CENTER
61 FORSYTH STREET
ATLANTA. GEORGIA 30303-8960
JUN G 5 2009
Via Facsimile and Overnight Mail
Mr. F. Edwin Hallman, Jr.
DECKER, HALLMAN, BARBER & BRIGGS
260 Peachtree Street, N.W.
Suite 1700
Atlanta, Georgia 30303
Subject: Request for Production of Documents and Testimony of Madolyn Dominy
Lewis, McElmurray and Boyce v. Walker, et al.
United States District Court Civil Action No. 3:06-CV-16-CDL
Middle District of Georgia
Dear Mr. Hallman:
On April 9,2009, a subpoena was served on an Environmental Protection Agency (EPA
or Agency) employee, Madolyn Dominy. The subpoena required Ms. Dominy to appear in the
Atlanta law offices of Decker, Hallman, Barber & Briggs on April 30,2009, at 10:00 a.m. to
provide deposition testimony in the private party lawsuit styled United States ex rel. Lewis,
McElmurray and Boyce v. Walker, et al. This lawsuit is a qui tam action filed by Relators
Lewis, McElmurray and Boyce pursuant to the Federal Civil False Claims Act. The purpose of
this Qui Tam lawsuit is to recover federal funds that were allegedly improperly paid to the
University of Georgia (UGA) to study the effects of the land-application of sewage sludge from
the Messerly Wastewater Treatment Plant in Augusta, Georgia. The United States Government
filed a notice of declination in this matter on October 20,2006.
Upon receipt of the subpoena, William T. Jones of my staff, discussed this matter with
Attorney Zachery Wilson of your office. After these discussions, the subpoena was withdrawn
and a request for testimony dated April 16,2009, was submitted in accordance with the
regulations at 40 C.F.R. Part 2, Subpart C. The Subpart C regulations govern the procedures to
be followed when an EPA employee is requested or subpoenaed to provide testimony or the
production of documents concerning information acquired in the course of performing official
duties.
EPA regulations at 40 C.F.R. Part 2, Subpart C, prohibit EPA employees from providing
testimony or producing documents, either voluntarily or in response to a subpoena, in any
proceeding in which the United States Government is not a party, unless EPA's General Counsel
or his/her designee finds that to do so is clearly in the interest of the Agency. 40 C.F.R. §§ 2.401
through 2.405. As Regional Counsel of Region 4,1 am the designee of EPA's General Counsel
for testimony requests made to Region 4 employees.
internal Address (URL) • http://www.epa.gov
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EPA Headquarters in Washington, D.C. In addition, Ms. Dominy did not visit land application
sites in Richmond and Burke Counties, Georgia relating to the Gaskin Study, did not collect,
analyze, or interpret samples or data relating to the Gaskin Study, and she did not draft the report
relating to the Gaskin Study. While, in the ordinary course of her duties, Ms. Dominy routinely
communicated with Mr. Brobst, Mr. Bastian, and Mr. Walker on issues relating to biosolids,
including the City of Augusta situation, your letter fails to explain how this routine
communication would support the Relators' claims of false statements in the grant application,
the grant process, or in the Gaskin Study itself, such that making Ms. Dominy available for the
taking of testimony is clearly in the interest of EPA. Moreover, EPA has a duty to remain
impartial amongst private litigants. That duty is not lessened in a case such as this where former
and current EPA employees are among the private party litigants. Indeed, maintaining the
Agency's neutrality is particularly important in such cases.
Under the circumstances, alter a review of all the information provided to me, and after
consultation with Ms. Dominy's program management, I cannot conclude that the provision of
testimony by this EPA employee, whether voluntary or under subpoena, is an appropriate use of
EPA time and resources, or that it can be considered "clearly in the interests of EPA."
If you have any questions concerning this matter, please contact William T. Jones, of my
stafi; at 404-562-9582.
Sincerely,
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
ATLANTA FEDERAL CENTER
61 FORSYTH STREET
ATLANTA, GEORGIA 30303-8960
I SBSZi
MAS - 6 2009
Elizabeth B. Paitlow
Ogletrec Deakins
1320 Main Street
Columbia, South Carolina 29201-3266
Re: Request and Subpoena for Deposition Testimony of Craig Zeller in the matter of
South Carolina Electric <£ Gas Company V. UGI Utilities, Inc. U.S. District Court,
District of South Carolina, Charleston Division, Civil Action No. 2:06-cv-02627
Dear Ms. Partlow:
The purpose of this letter is to respond to your request, as made by letter dated December
2, 2008, to attorney Kevin Beswick of my staff, and through a subpoena, dated February 10,
2009, for the deposition testimony of Environmental Protection Agency (EPA) employee Craig
Zeller, in connection with a private party lawsuit tilled South Carolina Electric & Gas Comnany
V. UGI Utilities, Inc. Through your letter, and an issued subpoena, you have purported to require
the testimony of Mr. Zeller.
Regulations at 40 C.F.R. Part 2, Subpart C, prohibit EPA employees from providing
testimony or producing documents, either voluntarily or in response to subpoenas, in any
proceeding in which the United States Government is not a party, unless EPA's General Counsel
or his/her designee finds that to do so is clearly in the interest of the Agency. 40 C.F.R. §§ 2.401
through 2.405. As Regional Counsel of Region 4,1 am the designee of EPA's General Counsel
for testimony requests made to Region 4 employees.
The stated purpose of the Subpart C 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 or production of documents when clearly in the interest of EPA."
40 C.F.R. § 2.401(c)
The concerns reflected in § 2.401(c) are more than understandable given the potential
number of private lawsuits in which EPA could be subpoenaed to provide testimony or produce
documents. Private litigation which relates to EPA's activities is common, and private litigants
often seek documents and testimony from EPA nationwide. The cumulative effect of providing
EPA resources to respond to numerous, broad-based subpoenas from private litigants in matters
Internet Address (URL) • http://www.epa.90v
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Under the circumstances, after a review of all the information provided to me, and after
consultation with the Region 4, Superfund Division Director, I cannot conclude that the
provision of testimony by this EPA employee, whether voluntarily or under subpoena, is an
appropriate use of EPA rime and resources, or that it can he considered "clearly in the interests of
EPA." In fact, this is a situation in which EPA's expressed and codified interests in ensuring that
employees' official time is used only for official purposes, maintaining impartiality among
private litigants, and ensuring that public funds are not used for private purposes, appear
particularly compelling and strongly weigh against the provision of such testimony and
compliance with the subpoena. Consequently, I have decided to deny approval to comply with
the subpoena and I request that you withdraw the subpoena immediately. If the subpoena is not
withdrawn, pursuant to 40 C.F.R. § 2.404(b), Mr. Zeller will appear, produce a copy of the 40
C.F.R. Part 2, Subpart C regulations and respectfully refuse to provide any testimony. EPA will
also request that the Assistant United State's Attorney file a Motion to Quash the subpoena in
federal district court
If you have any questions concerning this matter, please contact Kevin Beswick of my
staff at (404) 562-9580.
Sincerely,
Office Of Environmental Accountability
cc: Craig Zeller
R. Donald Rigger
3
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August 19,2008
Mr. Wm. Howell Morrison
Moore and VanAllen
Suite 300
40 Calhoun Street
Charleston, South Carolina
29401-3535
Re: Request and Subpoena for Deposition Testimony of Craig Zeller in the
matter of Ashley II of Charleston, LLC v. PCS Nitrogen, Inc., U.S. District Court,
District of South Carolina, Charleston Division, Civil Action No. 2:05-2782-CWH
Dear Mr. Morrison:
The purpose of this letter is to respond to your request, as made by letter dated
August 15, 2008, received in our office on August 18, 3008, to EPA employee, Craig
Zeller, for his deposition testimony, in connection with a private party lawsuit titled
Ashley II of Charleston, LLC v. PCS Nitrogen, Inc. As support for your request for
testimony, you submitted the letter of your co-counsel, Sandra Kaczmarczyk, dated
August 4, 2008, in which she separately requested Mr. Zellefs testimony. Therefore,
your purported request for testimony of Craig Zeller is being considered on the basis of
Ms. Kaczmarczyk submission to EPA of August 4, 2008.
EPA regulations at 40 C.F.R. Part 2, Subpart C, prohibit EPA employees from
providing testimony or producing documents, either voluntarily or in response to
subpoenas, in any proceeding in which the United States Government is not a party,
unless EPA's General Counsel, or his/her designee, finds that to do so is clearly in the
interest of the Agency. 40 C.F.R. §§ 2.401 through 2.405. As Regional Counsel of
Region 4,1 am the designee of EPA's General Counsel for testimony requests made to
Region 4 employees.
The stated purpose of the Subpart C 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 or production of documents when clearly in the interest of EPA."
40 C.F.R. § 2.401(c)
The concerns reflected in § 2.401 (c) are more than understandable given the
potential number of private lawsuits in which EPA could be subpoenaed to provide
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Freedom of Information Act (FOIA). Your letter, nor your co-counsel's August 4, 2008
letter explain why any knowledge Mr. Zeller might have of the Site beyond that which is
reflected in EPA documents and records, is relevant, let alone critical, to the pending
suit.
As to the reasons why the requested testimony would be clearly in the interests
of EPA, Ms. Kaczmarczyk's August 4 letter makes only a general statement that "Mr.
Zeller's testimony is clearly in EPA's interests." Neither you, nor your co-counsel, Ms.
Kaczmarczyk, explain how or why Mr. Zeller's testimony would be helpful in resolving
any issues related to your private lawsuit or why any information he might provide
cannot otherwise be obtained from Agency records or other sources.
An important part of EPA's analysis of whether to provide employee testimony is
to review EPA's role in the underlying dispute between the parties. EPA is not involved
in this litigation, the purpose of which is for private parties who have been involved with
this Site to resolve their relative liabilities amongst themselves. In such a case, the
Agency has a strong institutional interest in maintaining impartiality among private
litigants. You have expressed no reason to believe that Mr. Zeller's testimony is
necessary, or even important, to the resolution of liability issues at the Site. In addition,
Mr. Zeller has no information or knowledge independent from the existing Columbia
Nitrogen Site administrative record, material from which may be made available through
a FOIA request.
Under the circumstances, after a review of all the information provided to me,
and after consultation with the Region 4, Superfund Division Director, I cannot conclude
that the provision of testimony by this EPA employee, whether voluntarily or under
subpoena, is an appropriate use of EPA time and resources, or that it can be
considered "clearly in the interests of EPA." In fact, this is a situation in which EPA's
expressed and codified interests in ensuring that employees' official time is used only
for official purposes, maintaining impartiality among private litigants, and ensuring that
public funds are not used for private purposes, appear particularly compelling and
strongly weigh against the provision of such testimony and compliance with the
subpoena. Consequently, I have decided to deny approval to comply with the
subpoenas and I request that you withdraw these subpoenas immediately. If the
subpoena is not withdrawn, pursuant to 40 C.F.R. § 2.404(b), Mr. Zeller will appear,
produce a copy of the 40 C.F.R. Part 2, Subpart C regulations, and respectfully refuse
to provide any testimony. EPA also will request that the Assistant United States'
Attorney file a Motion to Quash the subpoena in federal district court.
Sincerely,
Mary J. Wilkes
Regional Counsel and Director
3
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
ATLANTA FEDERAL CENTER
61 FORSYTH STREET
ATLANTA, GEORGIA 30303-8960
MAR 3 1 2005
Mr. Raymon E. Lark, Jr.
Austin, Lewis & Rogers, PA
Congaree Building
508 Hampton Street, Suite 300
Post Office Box 11716
Columbia, SC 29201
Re: Request for Deposition Testimony by EPA employee in Carolina Water Services. Inc.. I-
20 Wastewater Treatment Facility. Petitioner, v. South Carolina Department of Health
and Environmental Control (DHECV Respondent. Docket No. 04-ALJ-07-0356-CC
Dear Mr. Lark:
The purpose of this letter is to provide a formal response to your March 25, 2005 Notice
of Deposition of Mr. Robert Freeman in the above referenced state court litigation. It is our
understanding that your firm represents the Petitioner in this matter. Your March 25, 2005 letter
indicates that providing Mr. Freeman's deposition testimony is in the best interests of the
Environmental Protection Agency (EPA) because the South Carolina Department of Health and
Environmental Control (DHEC) provided Mr. Freeman's name as an EPA contact in Region 4
for Section 208 and relevant planning matters, and because DHEC is relying on federal law and
regulations in its role in this matter.
As you have acknowledged, EPA regulations at 40 C.F.R. Part 2, Subpart C, govern
testimony by EPA employees on official matters, either voluntarily or in response to subpoenas,
in any proceeding to which the United States is not a party. The express purpose of these
regulations is:
... to ensure that employee's 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 or production of
documents when clearly in the interests of EPA. 40 C.F.R. § 2.401(c).
To achieve this purpose, the regulations provide that employees of EPA may testify in
private actions only where the EPA General Counsel or his/her designee determines that their
testifying would "clearly be in the interests of EPA." 40 C.F.R. § 2.403. As Regional Counsel, I
am that designee for determinations involving testimony by Region 4 employees.
Following consultation with Mr. Freeman and other regional personnel, including his
supervisors, and after careful consideration of the issues and arguments raised in your letter, I am
USEZj
PRCfl*-
Internet Address (URL)« http://www.epa.gov
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unable to make the requisite determination that allowing Mr. Freeman to testify in this litigation
would "clearly be in the interests of EPA." Your stated reasons noted above, that DHEC
identified Mr. Freeman and the fact that DHEC is relying on federal law and regulations, do not
provide a basis for this testimony clearly being in the best interests of the EPA. The fact that Mr.
Freeman has general knowledge of section 208 does not satisfy the requirements set out in EPA's
regulations for providing testimony in this matter. Also, although you are correct that states do
rely on federal law and regulations in implementing section 208 and other programs, that also
does not provide adequate justification. It is our understanding that the issues in this litigation
relate to what entity within the state of South Carolina has authority to ensure that state and area-
wide water quality management plans together include all necessary plan elements and that such
plans are consistent with one another, and to certify section 208 plans within the state. These are
questions of state law, not federal law. Further, it is our understanding that this matter concerns
DHEC's disapproval of a section 208 plan amendment. EPA's role in this process is limited to
approving plans already certified by the appropriate state agencyftherefore no EPA interest would
be served by having Mr. Freeman provide deposition testimony in this matter.
These facts, taken as whole, do not outweigh the stated purpose of our testimony
regulations, specifically, EPA's need to ensure that Mr. Freeman's time is used only for official
purposes. Since I am unable to make the requisite determination that allowing Mr. Freeman to
testify in this litigation would "clearly be in the interests of EPA," the EPA will not be providing
the deposition testimony you have requested. I have asked Philip Mancusi-Ungaro of my staff to
be the EPA contact for any future communications on this matter. He may be reached at 404-
S62-9519.
Sincerely,
Mary Kay Lynch
Regional Counsel and Director
Office of Environmental Accountability
2
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Css)
X u
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION A
ATLANTA FEDERAL CENTER
61 FORSYTH STREET
ATLANTA, GEORGIA 30303-8960
^ PRO^
JAN 1 4 2m
VTA FAPSTMTT F. anri
FIRST CLASS MAIL
Mr. David Hill Bashford, Esq.
Smith, Currie & Hancock, LLP
1023 West Morehead Street, Suite 301
Charlotte, North Carolina 28208
SUBJ: Request for Voluntary Testimony of Charles Fitzsimmons, On Scene Coordinator (OSC)
Dear Mr. Bashford:
The Office of Environmental Accountability (OEA) acknowledges receipt of your request
for the testimony of Region 4, Environmental Protection Agency (EPA) employee Charles
Fitzsimmons in an ongoing arbitration before the American Arbitration Association. The request
was made pursuant to EPA regulations. Those regulations, located at 40 C.F.R. Part 2, Subpart
C, permit EPA employees to testify regarding official matters in a proceeding in which the
United States Government is not a party if 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 funds are not used
for private purposes, and to establish procedures for approving testimony or production of
documents when clearly in the interests of EPA.
40 C.F.R. § 2.401(c). The Courts have recognized that regulations of this kind serve the
legitimate purpose of "conserving governmental resources where the United States is not a party
to the suit and ... minimizing government involvement in controversial matters unrelated to
official business." See Boron Oil v. Downie. 873 F.2d 67, 73 (4th Cir. 1989). Moreover, in
United States ex rel. Touehv v. Raeen. 340 U.S. 462 (1951), the Supreme Court upheld the
validity of this kind of regulation.
It is EPA's understanding that the arbitration between the parties concerns a private
contractual payment dispute arising from environmental clean up and remediation work
performed by HEPACO at the West Pharmaceuticals Plant in Kinston, North Carolina.
You have requested that OSC Fitzsimmons testify as to the nature and content of the direction
he gave HEPACO during the days immediately following the explosion at the West
Pharmaceuticals Site.
Internet Address (URL) • hnp://wwvv.epa.gov
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Page Two
Request for Testimony
EPA
As set out above, EPA employees may testify only where the General Counsel or his
designee determines that the testimony would "clearly be in the interest of EPA." I serve as the
designee of the General Counsel for testimony by employees in EPA Region 4. See 40 C.F.R.
§ 2.403. In accordance with the regulations, I have consulted with the Regional Administrator
regarding this matter.
Under the circumstances of this case, we have determined that providing OSC
Fitzsimmons would not be in the best interest of the EPA. EPA has no direct interest in the
pending dispute. The requested testimony would not be consistent with the regulatory purposes
set forth at 40 C.F.R § 2.401 (c), since the testimony would appear to involve EPA in a purely
private dispute. The reasons set forth in your letter do not indicate how the testimony would be
consistent with the regulatory purposes, or clearly in the interest of EPA.
Based on the policy established in the regulations and the above circumstances of this
case, EPA concludes that the requested testimony is not clearly in the interest of the Agency.
EPA resources are severely limited. In this instance, it is the Region's determination that
providing this employee for the purpose of testifying in a purely private dispute would constitute
an inappropriate diversion of EPA resources for private purposes.
If you have any questions concerning this matter, please contact Kim A. Jones, Assistant
Regional Counsel at (404) 562-9553.
Sincerely,
Regional Counsel
Office of Environmental Accountability
cc: Winston Smith
Waste Division
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MEMORANDUM
SUBJECT:
FROM:
TO:
Request for Testimony Under 40 C.RJi. § 2.403
Winston A Smith, DirectQ£x^^^^^^
Water Management Division
Mary K. Lynch
Regional Counsel
The Waste Management Division does not consider the testimony of Charlie
Fitzsimmons, ERRB Branch, to be in the interests of EPA. It is our understanding that the suit is
contract dispute between HEPACO and West Pharmaceuticals regarding expenses related to
emergency response activity. There is no benefit to EPA to become involved in a damages suit.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
^ ^ REGION 4
? ATLANTA FEDERAL CENTER
WJ 61 FORSYTH STREET
pks&F ATLANTA, GEORGIA 30303-8960
VIA FACSIMILE AND CERTIFIED MAIL
RETURN RECEIPT REQUESTED
October 26, 1999
Mr. Kirk L. Burns
Halsey & Burns, P. A.
First Union Financial Center, Suite 4980
200 South Biscayne Boulevard
Miami, Florida 33131-5309
Re: Request for Testimony in BB&L v. City of North Miami
Case No. 97-1484 CIV-HURLEY (S.D. Fla. 1997)
Dear Mr. Burns:
The purpose of this letter is to respond to your October 21, 1999, letter in which you
requested that the United States Environmental Protection Agency (EPA) agree to provide the
testimony of the following fourteen EPA employees in the above captioned case: Mr. Brad
Jackson, Mr. Gary Davis, Mr. Jose Negron, Mr. David Hill, Ms. JenniferHemdon, Mr. Eric
Hughes, Mr. Mike McGhee, Mr. Carl Vanderhough (Ms. Gail Mitchell)1, Mr. Bemie Hayes, Mr.
Mike Stephenson, Ms. Cathy Winer, Ms. Wilda Cobb, Mr. Bruce Kaplan (Bob Caplan), and Ms.
Kay Wishkamper (Kay Wischkaemper). Specifically, you indicated that these employees "would
need to be available to testify at deposition and at trial in the Federal District Court in and for the
Southern District of Florida. We understand the current trial date is November 30, 1999.
Ms. Cathy Winer is an employee in the Office of General Counsel in EPA Headquarters.
As such, EPA Region 4 does not have the authority to grant or deny a request for her testimony.
Any request for Ms. Winer's testimony must be made to Mr. Gary Guzy, General Counsel, in
EPA Headquarters. Hence, this letter shall address and be applicable only as to the request
for the remaining thirteen employees.
Your letter indicated that these employees would be expected to testify regarding the
"adequacy of BB&L's work performed at the direction of EPA employees" at the Munisport
Landfill Superfund Site and that "their testimony would be important in clarifying EPA
correspondence...." Additionally, you indicated that certain of these employees would be
1 Names in parentheses are intended to reflect the individual EPA believes the requestor
intended.
Internet Address (URL) • http-7Avww.epa.gov
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2
expected to testify in order to explore allegations of EPA bias against BB&L and its former
project manager, Mr. Richard Engelhardt.
As you are aware, EPA has already consented to allow Mr. Brad Jackson, Remedial
Project Manager at the Munisport Landfill Site, to testify in the above captioned matter. He is
now currently available, upon reasonable notice, to be interviewed and/or deposed by BB&L prior
to his anticipated trial testimony. While EPA may not consider it too burdensome on the Agency
to provide one employee in this case, providing 13 additional employees would be, especially
since the testimony which may be provided by the additional employees would be duplicative,
redundant, or available in file documents. Mr. Jackson as the Remedial Project Manager for the
Munisport Landfill Superfund Site is the most knowledgeable and appropriate individual to speak
on EPA's behalf regarding events surrounding the Site as he is the individual "primarily
responsible for directing response efforts and coordinating all other efforts at the scene of a
discharge or release" pursuant to 40 C.F.R. §300.105. Furthermore, Mr. Jackson, as the'author
of the EPA correspondence in dispute, is the only person who can provide the needed clarification
and put the documents in their proper context.
EPA regulations at 40 C.F.R. Part 2, Subpart C, contain restrictions on EPA employees
testifying regarding official matters in any proceeding in which the United States Government is
not a party. The purpose of the 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 or production of documents when clearly in the interests of EPA
40 C.F.R. §2.401(c).
Unless requested by another Federal agency or State or local government under 40 C.F.R.
§2.403, employees may testify only where the General Counsel, or his designee, determines that
the testimony would be "clearly in the interests of EPA." In EPA Region 4,1 am the designee of
the General Counsel for purposes of determining whether compliance with a request for testimony
is "clearly in the interests of EPA" The concern surrounding the "interests" of EPA is extremely
important to EPA because most EPA studies, inspections, regulatory actions and similar activities
deal with matters which may, and frequently do, give rise to private and State litigation. Although
providing a witness for a few hours in a particular matter might not significantly impede our
mission, the cumulative effect of such interruption would be very serious. This concern is the
basis for the "clearly in the interests of EPA" standard for approving EPA employees' testimony.
Under the circumstances of this case, I have determined that allowing the additional
thirteen employees to furnish the testimony you require, in response to your request, would not
clearly bein the interests of EPA I have concluded that the additional production of testimony
would not contribute to EPA's mission and would constitute an improper diversion of EPA
resources. Therefore, EPA denies your request to provide the testimony of the additional thirteen
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3
employees and hereby notifies you that it will move to quash any and all subpoenas issued on
behalf of BB&L to compel their testimony.
In addition to requesting the testimony of the aforementioned fourteen EPA employees,
you have also requested a file review of their respective files relating to the Munisport Site,
Florida Petroleum Reprocessors Site, Goldcoast Oil Site, and the Anodyne, Inc. Site. All of the
necessary documents pertaining to the Sites in question can be made available upon request
pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. §552. Your letter requesting to
review the files above will be treated as a FOIA request, and you may coordinate that request
with Mike Stephenson, Assistant Regional Counsel. Mr. Stephenson may be reached at (404)
562-9543. Additionally, as provided in 40 C.F.R §2.406, EPA will "authenticate" any available
records for purposes of admissibility if you request us to do so. There is a $25 fee for each such
"authentication".
Sincerely,
Mary Kay Lynch
Acting Regional Counsel
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
ATLANTA FEDERAL CENTER
61 FORSYTH STREET, SW
ATLANTA, GEORGIA 30303-8909
APR 16 1999
4EAD
Ewell E. Eagan, Jr., Esq.
Gordon, Arata, McCollam, Duplantis & Eagan, L.L.P.
201 St. Charles Avenue
40th Floor
New Orleans, LA 70170-4000
SUBJ: Request for Voluntary Testimony Pertaining to the Agrico Chemical Co.
Superfund Site (the Site)
Dear Mr. Eagan:
The purpose of this letter is to inform you that the United States Environmental Protection
Agency, Region 4 (EPA) has demed your request for the testimony of Mr. Ken Lucas, the
Remedial Project Manager (RPM) at the Site.
In your letter dated April 5, 1999, you requested that Mr. Lucas, an EPA employee,
provide testimony by deposition in a private litigation matter. Your letter explains that the
deposition would involve the EPA's "position" on various matters relating to the now-completed
remedial work at the Site, such as scheduling and extensions. Your letter states that certain
parties have made representations about these matters, and that Mr. Lucas' testimony would be in
EPA's interest because it would "clarify matters, finalize any dispute, and prevent any mistaken
representations relating to the EPA's official position on these matters."
Pursuant to EPA regulations at 40 C.F.R. Part 2, Subpart C, EPA employees are
prohibited from testifying about official matters, either voluntarily or in response to subpoenas, in
any proceeding in which the United States Government is not a party, unless authorized by the
General Counsel or his designee to do so. Pursuant to 40 C.F.R. § 2.403, such authorization will
only be granted where it is determined that compliance with the request would clearly be in the
interest of EPA. The purpose of the regulations is:
1. To ensure that employees' official time is used only for official purposes;
2. To maintain the impartiality of EPA among private litigants; and
3. To ensure that public funds are not used for private purposes and to establish
procedures for approving testimony or production of documents when clearly in the
interests of EPA [40 C.F.R. § 2.401(c)].
EPA has no direct interest in tne pending litigation. The requested testimony would not
be consistent with the regulatory purposes set forth at 40 C.F.R. § 2.401(c), since the testimony
tacyeM/ftoeycitM • Pitntad wWi WagataUe OH Basad Inka on 1G0« Raeydad P«psr (40% Postoonwaner)
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would appear to involve EPA in a purely private dispute. The reasons stated in your letter do not
indicate how the testimony would be consistent with these regulatory purposes, or clearly in the
interests of EPA.
Based on the policy established in the regulations and the above circumstances of this
case, EPA concludes that the requested testimony is not clearly in the interests of the Agency.
EPA resources are severely limited. In this instance, it is the Region's determination that
providing this employee for the purpose of testifying in a private litigation would constitute an
inappropriate diversion of EPA resources for private Durooses
If you have any questions concerning this matter, please contact Simon Miller of my staff
at (404) 562-9585.
Sincerely,
Phyllis Harris
Regional Counsel
cc: Ken Lucas
Curt Fehn
-2-
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UNITED STATES ENVIRONMENTAL PROTECTION AGEf
P £% \ REGION 4 \ ,
f S ATLANTA FEDERAL CENTER \ J
61 FORSYTH STREET, SW / — L J.
ATLANTA, GEORGIA 30303-6909 (/ /
JAN I 3 1398 ^
vTa T?ar.c?TMTLE
4EAD
Dr. Stanley K. Herbets, O.D.
3201 Wilderness Blvd., West
Parrish, Florida 34219
SUBJ: Request for Testimony
Proceedings on Florida Power and Light Company
Manatee Plant Orimulsion Conversion Project
Dear Dr. Herbets:
This is in response to your letter to John Hankinson of
October 16, 1997, requesting that an employee o£ the
Environmental Protection Agency (EPA), Region 4, testify at an
upcoming hearing in the above matter. Specifically, you
requested that Gregg Worley of the Region's Air, Pesticides and
Toxics Management Division testify on behalf of Manatee Citizens
Against Pollution at an upcoming hearing on the modification of
Florida Power and Light Company's Prevention of Significant
Deterioration (PSD) permit. The hearing is now scheduled for
January 15, 1998.
EPA's response to this request is governed by regulations
set forth at 40 C.F.R. Part 2, Subpart C. Those regulations are
designed "to ensure that employees' official time is used only
for official purposes, to maintain the impartiality of EPA among
private litigants, [and] to ensure that public funds are not used
for private purposes " 40 C.F.R. S 2.401(c). Under the
regulations, your request may be granted only if doing so "would
clearly be in the interests of EPA " 40 C.F.R. § 2.403.
As you know, the Florida Department of Environmental
Protection (DEP) primarily implements the PSD permitting program
in Florida, while EPA oversees the program. EPA's resources are
very limited and it is only in the most unusual cases that is
could provide the type of assistance your group requests.
Moreover, EPA has been in close communication with DEP concerning
this particular matter and has reviewed and provided DEP with
comments on the PSD modification. Given these facts, it would
not clearly be in EPA's interest for Mr. Worley to testify at the
upcoming hearing. Under EPA regulations, therefore, your request
cannot be accommodated.
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2
If you have any questions about this decision, please
contact David Savage at (404) 562-9556.
Sincerely,
bJL^.
Phyllis P. Harris
Regional Counsel and Director
Environmental Accountability
Division
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<€0 Sr*
$522/
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
4RC
VIA FACSIMILE
Thomas W. Reese, Esq.
2951 61st Avenue South
St. Petersburg, Florida
COURTWNO STREET. N.E.
ATLANTA. GEORGIA 30365
8M 2 8
33712
Vernon R. Wagner, Esq.
Hillsborough County
Environmental Protection Division
1900 9th Avenue
Tampa, Florida 33605
SUBJ: Florida State Administrative Hearihg, Florida Power &
Light Company, Manatee Orimulsion Project Application
PA94-35; Request for testimony of EPA Employee
Dear Mr. Reese and Mr. Wagner:
The Office of Regional Counsel (ORC) acknowledges receipt of
your respective requests for testimony of Region 4, Environmental
Protection Agency (EPA) employee Gregg Worley at the
administrative hearing referenced above. Both requests were made
pursuant to EPA regulations. Those regulations, located at 40
C.F.R. Part 2, Subpart C, prohibit EPA employees from testifying
regarding official matters in any proceeding in which the United
States Government is not a party unless authorized by the General
Counsel or his designee under 40 C.F.R. §2.404. The purpose of
the regulations is:
... to ensure that employees' official time is used
only fo^r 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 or
production ,pf documents- when clearly in the interests
of EPA. [40 C.F.R. §2.401(c)]
The courts have recognized that regulations of this kind
serve the legitimate purpose of "conserving governmental
resources where the United States is not a party to the suit and
... minimizing government involvement in controversial matters
unrelated to official business." See Boron Oil v. Downie, 873
F.2d 67, 73 (4th Cir. 1989). Moreover, in United States ex rel.
Touhv v. Raqen, 340 U.S. 462 (1951), the Supreme Court upheld the
validity of this kind of regulation.
We understand that your respective clients, Manasota-88,
Inc., Manatee County Save Our Bays Association, Inc., and the
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Hillsborough County Environmental Protection Division, have
intervened in the administrative proceeding referenced above. In
this matter, the Florida Department of Environmental Regulation
(FDER) is considering an application by the Florida Power & Light
Company (FPL) to modify its Prevention of Significant
Deterioration (PSD) permit for the Manatee Plant Orimulsion
Conversion Project (PSD-FL-219). You have requested that Mr.
Gregg Worley of EPA testify as to EPA's policies and procedures
for PSD review and Best Available Control Technology (BACT) rule
analysis as they apply to this conversion project.
As set out above, EPA employees may testify only where the
General Counsel or his designee determines that the testimony
would "clearly be in the interest of EPA." I serve as the
designee of the General Counsel for testimony by employees in EPA
Region 4. See 40 C.F.R. § 2.404. In accordance with the
regulations, I have consulted with the Regional Administrator
regarding this matter.
Under the circumstances of this case, we have determined
that providing Mr. Worley would not be in the best interest of
the EPA. EPA has already commented on FPL's PSD permit
modification application by its letter of November 14, 1995, to
the Florida Department of Environmental Regulation. That letter
specified EPA's concerns about FPL's proposed orimulsion
conversion project and also specifically addressed EPA's views on
the BACT analysis, cost effectiveness, technical issues and
reburn technology. Issues raised by EPA in that letter require
further clarification and consideration by FDER and FPL before a
final EPA position on the permit modification can be made. Given
that EPA has set forth its concerns and questions with regard to
the application and given that further response by FDER and FPL
is required prior to EPA finalizing its. position on the
application, Mr. Worley's testimony would be duplicative as to
EPA's concerns and premature as to EPA's final position.
Therefore, I find that providing Mr. Worley's testimony would not
be in the be^t interest of EPA.
By copy of this letter, as the General Counsel's designee, X
am advising Mr. Worley not to appear as a witness in the
administrative proceeding described above.
If you have any questions concerning this matter, please
contact Leif Palmer at (404) 347-2641, extension 2132.
cc: John Hankinson, Jr.
Gregg Worley
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
ATLANTA FEDERAL CENTER
100 ALABAMA STREET, S.W.
ATLANTA. GEORGIA 30303-3104
Martin A. Shelton, Esq.
Stack & Associates, P.C.
402 Flatiron Building
84 Peachtree Street
Atlanta, Georgia 30303
Subject: Denial of Request for Testimony
Dear Mr. Shelton:
Thank you for your letter dated October 22,1998, requesting testimony of EPA
employees Robert Freeman and David Ariail regarding federal requirements for land application
systems. EPA is denying this reqiiest, based on the reasons set forth below.
EPA regulations at Title 40, Code of Federal Regulations, Part 2, Subpart C, generally
prohibit EPA employees from testifying "... concerning information acquired in the course of
performing official duties or because of the employee's official status...," either voluntarily or in
response to subpoenas, in any proceeding in which the United States is not a party to the
litigation. 40 C.F.R. § 2.401(b). The authority for these regulations is Title 5, United States
Code, § 301 (Federal Housekeeping Statute^ See also U.S. ex rel. Touhy v. Ragen. 340 U.S. 462
(1951).
The purpose of the regulation 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 or production of documents when clearly in the interests of EPA." §
2.401(c).
The concerns expressed in § 2.401(c) arc important to the Agency because of the potential
number of private lawsuits in which EPA employees could be requested to testify if the
regulations are not properly applied. The cumulative effect of providing EPA witnesses to private
litigants when EPA is not a party would constitute an improper diversion of EPA resources for
private purposes. Moore v Armour Pharm. Co.. 927 F.2d 1194, 1198 (11th Cir. 1991). EPA
resources are severely limited, and EPA cannot permit private litigants to use the duty time of
federal employees for the numerous proceedings in which their testimony might be requested.
Providing official time for testimony in this matter may also be perceived as a failure by EPA to
maintain impartiality among private litigants.
4EAD
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Martin A. Shelton, Esq.
Page Two
Unless requested by another Federal agency or state or local government, employees may
testify only where the General Counsel or his designee, determines that the testimony would be
"clearly in the interests of EPA." In EPA Region 4,1 am the designee of the General Counsel for
purposes of determining whether compliance with a request for testimony is "clearly in the
interests of EPA." See EPA Memorandum, Designation Under 40 C.F.R. Part 2, Subpart C
(August 29,1985) (OGC delegation to Regional Counsels to administer §2.402(b)).
In your letter of October 22, 1998, you stated that the requested testimony would discuss
specific requirements of land application systems and that your clients seek an unbiased opinion.
EPA has previously responded by letter to your firm regarding the federal requirements for lanH
applications systems pursuant to the federal Clean Water Act. In addition, correspondence
providing guidance to the Georgia Environmental Protection Division regarding land application
systems has been included in the record of the proceeding for which this testimony is sought. As
provided in 40 C.F.R. § 2.406, EPA will "authenticate" any available records for purposes of
admissibility, if you request us to do so. There is a $25.00 fee for each such "authentication."
To provide additional witness testimony, in light of this, would be unduly cumulative.
After careful consideration of the factors indicated above, I have determined that
providing the requested testimony would not be "clearly in the interests of EPA." EPA's
position regarding land application systems is sufficiently outlined in correspondence referenced
above. As a result, EPA has no clear interest in permitting its employees to testify.
Mr. Robert F. McGhee, Chief of the Water Management Division, has also been properly
consulted regarding this matter, in accordance with 40 C.F.R. §2.403.
Should you have any questions regarding this matter, please contact David M. Moore of
my staff at 404-562-9547.
Sincerely,
-------
n
\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
\ REGION 4
vJRJ?Z I ATLANTA FEDERAL CENTER
u 61 FORSYTH STREET, SW
PfrfT ATLANTA, GEORGIA 30303-8909
OCT 2 9 1998
4EAD
Mr. Evan M. Goldenberg
Halsey & Burns, P. A.
First Union Financial Center, Suite 4980
200 South Biscayne Boulevard
Miami, Florida 33131-5309
SUBJ: Request for Testimony Proceedings in Blasland, Bouck & Lee, Inc.
vs. City of North Miami
Dear Mr. Goldenberg:
This is in response to your letter of September 29, 1998, requesting that employees of the
U.S.A. Environmental Protection Agency (EPA), Region 4, testify at an upcoming hearing in the
above matter. Specifically, you requested that Gary Davis and Jose Negro of the Region's Water
Division and Brad Jackson of the Region's Waste Management Division testify on behalf of
Blasland, Bouck & Lee (BB&L) at an upcoming trial on the quality of work conducted by BB&L
at the Munisport Superfund Site in North Miami, Florida.
EPA's response to this request is governed by regulations set forth at 40 C.F.R. Part 2,
Subpart C. Those regulations are designed "to ensure that employees' official time is used only
for official purposes, to maintain the impartiality of EPA among private litigants, and to ensure
that public funds are not used for private purposes...." 11 40 C.F.R. § 2.401(c). Under the
regulations, your request may be granted only if doing so "would clearly be in the interests of
EPA." 40 C.F.R. § 2.403.
EPA's resources are very limited, and it is only in the most unusual cases that EPA can
allow its Agency employees to testify in purely private litigation. The matter in which you request
Agency employees' testimony is a breach of contract issue. You seek to have the Agency
employees testify to the quality of work conducted pursuant to a contract between BBL and the
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City of North Miami. Given these facts, it would not clearly be in EPA's interest for Agency
personnel to testify at the upcoming hearing. Under EPA regulations, therefore, your request
cannot be accommodated.
If you have any questions about this decision, please contact Wilda Cobb at (404) 562-
9530.
Sincerely,
PhyllbrP. Harris
Regional Counsel and Director
Environmental Accountability Division
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
ATLANTA FEDERAL CENTER
61 FORSYTH STREET
ATLANTA. GEORGIA 30303-6960
O
*
DEC 1 9 1998
4WD-SSMB
MEMORANDUM
SUBJECT: Request for EPA Testimony
Munisport Landfill Superfund Site
FROM: Richard D. Green, Director
Waste Management Division
TO: Phyllis Harris, Director
Environmental Accountability Division
This memorandum is in response to a request for consultation regarding the
appropriateness of EPA* s testimony in a private litigation regarding the Munisport Landfill
Superfund Site. Specifically, EPA Headquarters received a request on September 29, 1998, from
a law firm representing Blasland, Bouck and Lee (BB&L) for testimony by EPA's Remedial
Project Manager, Brad Jackson, on the Munisport Landfill Superfund Site. BB&L is suing the
City of North Miami (Potentially Responsible Party for the Superfund Site) for non-payment of
invoices. The City has filed a counter claim of negligence and breach of contract.
It is the Division's vi<;w that while Mr. Jackson could render his opinion regarding some
of the underlying issues related to the Remedial Design and Remedial Action, he could not offer
any additional factual information that does not already exist in the voluminous records for this
site. Additionally, there is concern that EPA's involvement in this case may be viewed by parties
opposed to the deletion of the site from the National Priorities List as an opportunity to challenge
EPA's decisions. As a result, the Waste Management Division does not believe that Mr.
Jackson's testimony in this case would be in the interest of EPA.
Feel free to contact me should you have any additional questions.
cc: Wilda Cobb, EAD
Brad Jackson, 4WD-SSMB
Internet Address (URL) • http://www.epa.8ov
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
ATLANTA FEDERAL CENTER
61 FORSYTH STREET
ATLANTA, GEORGIA 30303-8960
OCT '1998
Memorandum
Subject: October 19. 1998 Request for Testimony Under 40CFR Section 2.403
From:
Mike McGhee, Director
Water Management Divisioj
To:
Phyllis P. Harris, Director
Environmental Accountability Division
The Water Management Division does not consider the testimony of Jose Negron,
Wetlands Section, to be in the interest of EPA. It is our understanding that the suit is for unpaid
invoices for work performed by BB&L on behalf of the City, at the Munisport Landfill and
Superfund Site in North Miami, Florida. Since at issue is wether the work rendered at the site
was performed negligently and in breach of the contract between the parties, there is no benefit to
EPA becoming involved in this suit. Additionally, the information which Mr. Negron would be
ask to provide in testimony can be obtained form Agency Records.
cc: Thomas C. Welborn, WCWQGB
Bill Cox WS
Jose Negron, WS
Wilda Cobb, EAD
Internet Address (URL) • httpy/www.epa.gov
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
ATLANTA FEDERAL CENTER
100 ALABAMA STREET, S.W.
ATLANTA, GEORGIA 30303-3104
Memorandum
Subject: October 23, 1998 Request for Testimony Under 40CFR Section 2.403
From:
Mike McGhee, Director
Water Management Division
To:
Phyllis P. Harris, Director
Environmental Accountability Division
The Water Management Division does not consider the testimony of Gary Davis,
Geographic Planning & Water Quality Section, to be in the interest of EPA. It is our
understanding that the suit is for unpaid invoices for work performed by BB&L on behalf of the
City, at the Munisport Landfill and Superfund Site in North Miami, Florida. At issue is whether
the work rendered at the site was performed negligently and in breach of the contract between the
parties. The public record contains all information pertinent to this suit. Mr. Davis's testimony
could only duplicate what is in the public record. Therefore, there is no benefit to EPA becoming
involved in this suit.
cc: Gail Mitchell, Chief GPTSB
William Melville, GPWQS
Gary Davis, GPWQS
Wilda Cobb, EAD ^
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
ATLANTA FEDERAL CENTER
100 ALABAMA STREET, S.W.
ATLANTA, GEORGIA 30303-3104
JUL I & 1993
4EAD-OLS
Adam M. Mosk.owi.tz, Esquire
Kozyak Tropin & Throckmorton, P.A.
2800 First Union Financial Center
200 South Biscayne Boulevard
Miami, Florida 33131-2335
SUBJ: Productora de Semillas v. Du Pont et al.
Request for Testimony, Mr. Carlton Layne
Dear Mr. Moskowitz:
The purpose of this letter is to respond to your request for
testimony in the above-cited matter. In your letter of July 17,
1997, to Regional Administrator John H. Hankinson, Jr., you
indicated that you would like Mr. Carlton Layne of the United
States Environmental Protection Agency (EPA) to provide testimony
in this matter, at a deposition to be taken July 30, 1997. Mr.
Layne was served with a Notice of Taking Deposition Duces Tecum
on July 8, 1997, which notified him of the July 30 deposition,
and which included a subpoena duces tecum to produce all
documents passing between EPA and DuPont which relate to Benlate.
In your July 17, 1997 letter, you indicated that you
anticipate that Mr. Layne would provide testimony concerning the
efficacy of Du Pont's product Benlate 50 DF, and would provide
documents relating to EPA's investigation into Benlate 50 DF.
You also noted that it is your belief that this testimony would
be in the best interest of EPA because EPA has the resources to
resolve environmental issues which are beyond the capabilities of
private litigants. Furthermore, you cite to EPA Office of
Pesticides Program Notice 96-4 entitled "Notice to Manufacturers,
Producers, Formulators, and Registrants of Pesticide Products,"
and quote EPA's position that agricultural pesticides are
"effectively regulated by the marketplace" and that "private
legal actions for damages" would ensure that pesticide
manufacturers sell efficient products.
EPA regulations at 40 C.F.R. Part 2, Subpart C, contain
restrictions of EPA employees testifying regarding official
natters in any proceeding in which the United States Government
Ls not a party. The purpose of the regulations is:
^osr<%
yazi*
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2
... 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 or production of
documents when clearly in the interests of EPA.
40 C.F.R. § 2.401(c).
Under 40 C.F.R. § 2.401(a)(2), these regulations apply to,
among other matters, n[f]ederal civil proceedings..." With
respect to a subpoena served on an EPA employee, pursuant to
40 C.F.R. § 2.404(b), the matter is referred to the General
Counsel, or his designee, the Regional Counsel for determination
as to whether compliance with the subpoena would clearly be in
the interests of EPA. I am the Regional Counsel for EPA Region
4, and so this matter has been referred to me for determination.
Under 40 C.F.R. § 2.403, any request for testimony by an EPA
employee must state "the reasons why the testimony would be in
the interests of EPA.n
The concern surrounding the interests of EPA is extremely
important to EPA because most EPA studies, inspections,
regulatory actions and similar activities deal with matters which
may, and frequently do, give rise to private and State
litigation. Although providing a witness for a few hours in a
particular matter might not significantly impede our mission, the
cumulative effect of such interruptions would be very serious.
This concern is the basis of our "interests of EPA" standard for
approving EPA employees' testimony. Please see the enclosed
Memorandum of July 28, 1997, from Winston A. Smith, Director,
Air, Pesticides & Toxics Management Division.
Under the circumstances of this case, I have determined that
allowing Mr. Layne to furnish the testimony you require, in
response to your request, would not be in the interests of EPA.
I have concluded that Mr. Layne's production of volunteer
testimony and EPA-generated documents would not contribute to
EPA's mission and would constitute an improper diversion of EPA
resources. As an alternative, pursuant to 40 C.F.R. Part 2
Subpart C, your request for documents will be considered pursuant
to the Freedom of Information Act (FOIA), 5 U.S.C. § 552 et seq.
Please be advised that the documents you listed in your subpoena
duces tecum are not in the possession of Mr. Layne or of Region
4, and will have to be obtained by the Region from EPA
Headquarters in Washington, D.C. Region 4 will respond to your
FOIA request in accordance with the regulations at 40 C.F.R.
Part 2, Subparts A and B.
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3
If you have any questions regarding this letter, please
contact Mr. Alan E. Dion, Associate Regional Counsel at
(404) 562-9587.
Sincerely,
Regional Counsel
Enclosure
-------
4R
Todd S. Schenk, Esquire
Tressler, Soderstrom, Maloney & Priess
Sears Tower, 22nd Floor
213 S. Wacker Drive
Chicago, Illinois 60606-6308
SUB J: Request for Voluntary Testimony Pertaining to the JFD
Electronics/Channel Master Superfund Site (the Site).
Dear Mr. Schenk:
The purpose of this letter is to inform you that the United
States Environmental Protection Agency, Region IV (EPA) has
denied your request for the testimony of Mr. McKenzie Mallary,
the Remedial Project Manager (RPM) at the Site. This denial was
verbally conveyed to you on March 25, 1997, by Mr. David K. Clay,
Assistant Regional Counsel.
In your letter dated March 17, 1997, you requested that
Mr. Mallary, an EPA employee, provide testimony through
deposition in a private litigation matter, in the United States
District Court, Southern District of New York. Based on your
letter, it is EPA's understanding that the purpose of the
testimony would be to assist you in determining whether certain
insurance policies issued or allegedly issued by your client,
Lumbermens Mutual Casualty Company, to Unimax, provide coverage
for the costs of defense and clean up at the Site.
Pursuant to EPA regulations at 40 C.F.R. Part 2, Subpart C
(copy enclosed), EPA employees are prohibited from testifying
about official matters, either voluntarily or in response to
subpoenas, in any proceeding in which the United States
Government is not a party, unless authorized by the General
Counsel or his designee to do so. Pursuant to 40 C.F.R. § 2.403,
such authorization will ionly be granted where it is determined
that compliance with the request would clearly be in the interest
of EPA. The purpose of the regulations is:
1. To ensure that employees* official time is used
only for official purposes;
2. To maintain the impartiality of EPA among
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private litigants; and
-2-
3. To ensure that public funds are not used for
private purposes and to establish procedures for
approving testimony or production of documents
when clearly in the interests of EPA. [40 C.F.R. §
2.401 (c)].
In your letter, you have requested Mr. Mallary*s testimony
regarding"the source, nature, characteristics, and scope of
contamination at the Site, as well as the type, cost, and length
of the clean-up. Mr. Mallary would be testifying about
information that is contained in documents that are self-
explanatory and provide thorough descriptions of the Site
including the history and all the remedial activities. All
relevant documents pertaining to the Site are compiled in the
administrative record and are readily available for public review
in the EPA, Region IV Record Center.
Pursuant to 40 C.F.R. § 2.403, a request for testimony by an
EPA employee under § 2.402(b) ... must state the reasons why the
testimony would be in the interests of EPA.... In your letter
requesting testimony, you failed to provide EPA with any
discemable reasons to establish that pursuant to the
regulations, this testimony would clearly be in EPA's best
interest. Except to state that "it will be extremely helpful to
the parties in their ongoing efforts at settling this matter
before trial", you have not presented EPA with any supporting
reasons for consideration.
Furthermore, all the necessary documents pertaining to the
Site can be made available upon request pursuant to the Freedom
of Information Act (FOIA), 5 U.S.C. § 552. In addition, as
provided by 40 C.F.R. § 2.406, EPA will "authenticate" any
available records for purposes of admissibility if you request us
to do so. There is a $25 fee for each such "authentication."
Based on the policy established in the regulations and the
above circumstances of this case, EPA concludes that the
requested testimony is not clearly within the interests of the
Agency. EPA resources are severely limited. In this instance,
it is the Region's determination that providing this employee for
the purpose of testifying at a private litigation would
constitute an inappropriate diversion of EPA resources for
private purposes.
In accordance with the regulations at 40 C.F.R. § 2.403, I
have consulted with the Regional Administrator regarding this
denial of your request for Mr. Mallary's testimony. If you have
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-3-
any questions concerning this matter, please contact Mr. Clay of
my staff at telephone number (404) 562-9565.
Sincerely,
Phyllis Harris
Regional Counsel
Enclosure
cc: Ken Mallary
Phillip Vorsatz
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\/r
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
J4S COURTIAND STREET. N.E.
ATLANTA. GEORGIA 30365
sir \ t 18,6
4RC
VIA FACSIMILE
Michael 3. Odom, Esq.
Fann & Rea, P.C.
22 Inverness Center Parkway, Suite 140
Birmingham, Alabama 35242
SUB J: Henry Crowden v. Gold Kiet
Request for Testimony of EPA Employee
Dear Mr. Odom:
The Office of Regional Counsel (ORC) acknowledges receipt
your request for the testimony of Region 4, Environmental
Protection Agency {EPA) employee, Robert G. Stryker for the above
referenced case. This request is denied.
EPA regulations at 40 C.F.R. Part 2, Subpart C, outline the
procedures for making this type of request, and prohibit EPA
employees from testifying regarding official matters in any
proceeding in which the United States Government is not a party
unless authorized by the General Counsel or his designee pursuant
to 40 C.F.R. § 2.404. In accordance with Section 2.402(b), the
request must be in writing and must state the nature of the
requested testimony and the reasons why the testimony would be in
the interests of EPA. Your request did not state why it would be
in the interest of EPA to provide testimony in the above
referenced case. 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 or production of documents when clearly
in the interests of EPA.
40 C.F.R. § 2.401(c).
The Courts have recognized that regulations of this kind
serve the purpose of "conserving governmental resources where the
United States is not a party to a suit and. . . minimizing
government involvement in controversial matters unrelated to
official business." See Boron Oil v. Downie. 873 F.2d 67, 73
(4th Cir. 1989). Moreover, in United States ex rel. Touhv v.
s'<>
jT To
mj
"W -r>V
-l toortt"
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Raqen, 340 U.S. 462 (1951), the Supreme Court upheld the validity
of this kind of regulation.
We understand that your client, Gold Kist has been sued by
Mr. Crowden for an alleged misapplication of fertilizer. As a
result, you have requested that Mr. Robert Stryker testify as to
his review of the Alabama Department of Agriculture and
Industries (ADAI) inspection file and his resulting opinion,
outlined in a March 21, 1995 letter to Mr. Crowden. As set forth
above, EPA employees may testify only where the General Counsel
or his designee determines that the testimony would "clearly be
in the interest of EPA." I serve as the designee of the General
Counsel for testimony by employees in EPA, Region 4. See
40 C.F.R. § 2.404. In accordance with the regulations, I have
consulted with the Regional Administrator regarding this matter.
Under the circumstances of this case, we have determined
that providing Mr. Stryker would not be in the best interest of
EPA. Your request for testimony was not in accordance with the
regulations in that it did not provide any reasons why the
testimony would be in the interests of EPA. In addition, EPA hds
already commented on the ADAI inspection file by its letter of
March 21, 1995. Alabama Commissioner Todd has also provided the
same opinion in a letter of September 23, 1994. Therefore,
Mr. Stryker's testimony would be duplicative and not in the best
interests of EPA. Your request for testimony is therefore
denied. However, as an alternative, pursuant to 40 C.F.R.
§ 2.406, EPA is offering to authenticate its March 21, 1995
letter for purposes of admissibility under 28 U.S.C. § 1733 and
Rule 44 of the Federal Rules of Civil Procedure.
By copy of this letter, as the General Counsel's designee, I
am advising Mr. Stryker not to appear as a witness in the
judicial proceeding described above. If you have any questions
concerning this matter, please contact Ms. Lynda Crum, Assistant
Regional Counsel at (404) 347-2641, extension 2134 until
September 6, 1996, and at (404) 562-9524 after September 6, 1996.
Sincerely yours
cc: Patrick E. Morgan II, Ph.D.
John Hankinson, Jr.
Robert Stryker
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
ATLANTA FEDERAL CENTER
61 FORSYTH STREET
ATLANTA, GEORGIA 30303-8960
,,JUN 1? 1996
4EAD
VIA FACSIMILE
Gary C. Shockley, Esq.
Baker, Donelson, Bearman & Caldwell
1700 Nashville City Center
511 Union Street
Nashville, Tennessee 37219
SUBJ: Horace Trent and Willie Trent v. Averv Dennison Corp.
and IPC&L, Request for Testimony of Mr.David Ariail
Dear Mr. Shockley:
The purpose of this letter is to respond to your request
for testimony in the above matter. In your May 12, 1998 letter,
you indicated you would like Mr. David Ariail of the United
States Environmental Protection Agency (EPA) to provide
testimony that you assert is essential for Avery Dennison Corp
and IPC&L in this matter.
Specifically, you indicated that you anticipate that
Mr. Ariail would provide testimony concerning reporting of the
release of toluene by Avery Dennison to EPA, entry into the
Consent Agreement with EPA by Avery Dennison, subsequent
investigation and remediation of toluene releases under EPA
oversight, efforts by EPA to secure access to the Trent property
to allow for remediation, discussions between the parties at a
meeting requested by EPA in October 1991 at the Rogersville
plant, and the current status of the site, including a pending
closure request.
EPA regulations at 40 C.F.R. Part 2, Subpart C, contain
restrictioris of T5PA employees testifying regarding official
matters in any proceeding in which the United States Government
is not a party. The purpose of the 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 or
production of documents when clearly in the interests
of EPA.
40 C.F.R. § 2.401(c).
^e087:%
\
(9
uazi.
Internet Address (URL) • http://www.epa.gov
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Under 40 C.F.R. § 2.401(a)(1), these regulations apply to,
among other matters, "[s]tate court proceedings (including grand
jury proceedings)." Under 40 C.F.R. § 2.402(b), ". . .no EPA
employee may provide testimony or produce documents in any
proceeding. . . concerning information acquired in the course of
performing official duties or because of the employees official
relationship with EPA, unless authorized by the General Counsel
or his designee" under Sections 2.403 through 2.406. Pursuant to
Section 2.403, the General Counsel (or his designee) must
determine whether compliance with the request would clearly be in
the interests of EPA. The concern surrounding the interests of
EPA is extremely important because most EPA studies, inspections,
regulatory actions and similar activities deal with matters which
may, and frequently do, give rise to private and State
litigation. Although providing a witness for a few hours in a
particular matter might not significantly impede our mission, the
cumulative effect of such interruptions would be very serious.
This concern is the basis of our "interests of EPA" standard for
approving EPA employees' testimony.
Under the circumstances of this case, I have determined that
allowing Mr. Ariail to furnish the testimony you request would
not clearly be in the interests of EPA. I have concluded that
Mr. Ariail's testimony would not contribute to EPA's mission and
would constitute an improper diversion of EPA resources. As an
alternative, pursuant to 40 C.F.R. § 2.406, EPA is offering to
authenticate documents related to EPA activities with Avery
Dennison at the Rogersville site for purposes of admissibility
under 28 U.S.C. § 1733 and Rule 44 of the Federal Rules of Civil
Procedure.
If you have any questions regarding this letter or wish to
have documents authenticated, please contact Ms. Lynda C. Crum,
Associate Regional Counsel at (404) 562-9524.
Sincerely,
Phyllis P. Harris
Regional Counsel and Director
Environmental Accountability Division
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION A
34S COURTLAND STREET, N.E
ATLANTA. GEORGIA 30365
APfl 0 9 Ijyo
4RC
VIA FACSIMILE and
FIRST CLASS MAIL
W. Seaborn Jones, Esq.
Gleaton, Scofield, Egan & Jones
Promenade Two, Suite 2990
1230 Peachtree Street, N.E.
Atlanta, Georgia 30309
SUB J: Edward S. Carder. Jr. and Amanda Leigh Carder v. Orkin
Exterminating Company. Inc.. Civil Action No. 93VS0072389F
Request for Testimony of EPA Employee
Dear Mr. Jones:
The Office of Regional Counsel (ORC) acknowledges receipt of
your request for the deposition of Region 4, Environmental
Protection Agency (EPA) employee Carlton Layne at the state court
proceeding referenced above. The request was made pursuant to
EPA regulations. Those regulations, located at 40 C.F.R. Part 2,
Subpart C, permit EPA employees to testify regarding official
matters in a proceeding in which the United States Government is
not a party if authorized by the General Counsel or his designee
under 40 C.F.R. § 2.403. The purpose of the 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 or
production of documents when clearly in the interests
of EPA.
40 C.F.R. § 2.401(c). The Courts have recognized that
regulations of this kind serve the legitimate purpose of
"conserving governmental resources where the United States is not
a party to the suit and. . . minimizing government involvement in
controversial matters unrelated to official business." See Boron
Oil v. Downie, 873 F.2d 67, 73 (4th Cir. 1989). Moreover, in
United States ex rel. Toughv v. Ragen. 340 U.S. 462 (1951), the
Supreme Court upheld the validity of this kind of regulation.
We understand that the plaintiff in the litigation styled
above was exposed to one or more of three pesticides which the
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2
defendant had applied at the plaintiff's workplace; that the
three pesticides were Whitmire products, including 280 Orthene,
270 Dursban and 565 Pyrethrin; and that the use instructions on
the labels of the product are in dispute. You have requested
that Mr. Layne of EPA testify as to EPA's interpretation of the
subject pesticide label instructions for use.
As set out above, EPA employees may testify only where the
General Counsel or his designee determines that the testimony
would "clearly be in the interest of EPA." I serve as the
designee of the General Counsel for testimony by employees in EPA
Region 4. See 40 C.P.R. § 2.403. In accordance with the
regulations, I have consulted with the Regional Administrator
regarding this matter.
Under the circumstances of this case, we have determined
that providing Mr. Layne would be in the best interest of the
EPA. Assuming the facts as set forth in your February 29, 1996
letter are true, EPA is concerned that a national pest control
company may be interpreting the use instructions on the pesticide
labels of Whitmire's 280 Orthene, 270 Dursban and 565 Pyrethrin
to include the voids under desks and tables, and open floor
spaces where people may be unnecessarily exposed.
By copy of this letter, as the General Counsel's designee, I
am advising Mr. Layne to appear at a deposition as a witness in
the proceeding described above for the limited purpose of
providing testimony concerning EPA's interpretation of the labels
for the Whitmire pesticide products 280 Orthene, 270 Dursban and
565 Pyrethrin. Please contact Ms. Lynda C. Crum, Assistant
Regional Counsel at (404)347-2641, extension 2134 to set up a
mutually convenient time.
William D. Andersoir ^
Acting Regional Cdunsel
Office of Regional Counsel
cc: John H. Hankinson, Jr.
Regional Administrator
Carlton Layne
Pesticides Section
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o*1tOS7^
W/
"4 PBO^°
4APT-PS
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
345 COURTLAND STREET, N.E.
ATLANTA, GEORGIA 30365
Ml § I MM
MEMORANDUM
SUBJECT:
FROM:
TO:
Recommendation of Air, Pesticides and Toxics Management
Division in the Matter of Edward S. Carder. Jr. and
Amanda Leigh Carder v. Orkin Exterminating Company.
Inc. to Permit Testimony of EPA Employee, Carlton Layne
Bruce P. Miller
Deputy Director
Air, Pesticides and Toxics Management Division
William D. Anderson
Acting Regional Counsel
Office of Regional Counsel
Pursuant to 40 C.F.R. § 2.403, the Air, Pesticides and
Toxics Management Division, recommends that its employee, Carlton
Layne be permitted to testify in the above referenced matter.
On February 29, 1996, the Agency received a request from
W. Seaborn Jones, Esq. for the testimony of Mr. Layne in the
above referenced matter. EPA regulations at 40 C.F.R. Part 2,
Subpart C, permit EPA employees to testify regarding official
matters in a proceeding in which the United States Government is
not a part if authorized by the General Counsel or his designee
under 40 C.F.R. § 2.403. The purpose of the 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 or
production of documents when clearly in the interests
of EPA.
40 C.F.R. § 2.401(C).
According to the February 29, 1996 letter, Edward and Amanda
Carder were exposed to one or more of three pesticides, which
Orkin Exterminating Company, Inc. had applied at their workplace.
The three pesticides were Whitmire products, including 280
Orthene, 270 Dursban and 565 Pyrethrin. They were applied in
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2
Carders claim Orkin has taKen the position that:
(1) Application on flat surfaces (where there are no cracks
or crevices, etc.) like carpets and window ledges is
permissible;
(2) No problem is posed if humans contact those flat
surfaces on which these pesticides are applied;
(3) That "voids" as used in these label instructions
include the open areas under tables and desks;
(4) That there is no requirement to move people out of or
away from an area where these pesticides are being
applied when these pesticides are not being applied in
cracks, crevices or voids, but on open, flat surfaces;
and
(5) That these pesticides may be sprayed (released in the
air) in the direction of a flat surface (not in a crack
or crevice) within very close proximity (one or two
feet) of people working in the area.
In addition, the Carders maintain that these positions are
"plainly contrary to the labeling instructions." They also, state
that representatives of Whitmire (manufacturer of the pesticides)
and of "lesser independent agencies" have "demonstrated their
reluctance to take issue with [Orkin's] position." We have
reviewed the labels of the pesticides and have determined that if
the facts as stated in the February 29, 1996 letter are true,
Orkin's position is clearly wrong.
As a result, we believe that in this particular case, it
would be in the interest of EPA to permit Mr. Layne to appear at
a deposition as a witness for the limited purpose of providing
testimony concerning EPA's interpretation of the labels for the
Whitmire pesticide products 280 Orthene, 270 Dursban and 565
Pyrethrin. We are concerned that a national pest control company
such as Orkin would interpret the use instructions on these
pesticide labels to include the spaces under desks and tables,
and open floor spaces where people may be directly exposed to
them, when the instructions indicate they should, be applied in
structural cracks and crevices. Therefore, the Orkin
interpretation, as described above, seems to be contrary to the
instructions for use provided on the labels of the products and
would probably be a misuse violation under the Federal
Insecticide, Fungicide and Rodenticide Act (FIFRA). In addition,
the Agency is prohibited by the statute of limitations from
proceeding on this case and it would probably be difficult to
pursue a case of this nature within the statute of limitations.
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Therefore, pursuant to 40 C.F.R. § 2.403, we recommend that
Mr. Layne be permitted to testify in the above referenced matter
for the limited purpose of providing deposition testimony on
EPA's interpretation of label instructions for the Whitmire
pesticide products 280 Orthene, 270 Dursban and 565 Pyrethrin.
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Therefore, pursuant to 40 C.F.R. § 2.403, we recommend that
Mr. Layne be permitted to testify in the above referenced matter
for the limited purpose of providing deposition testimony on
EPA's interpretation of label instructions for the Whitmire
pesticide products 280 Orthene, 270 Dursban and 565 Pyrethrin.
bcc: John H. Hankinson, Jr.
Regional Administrator
Winston A. Smith
Director
LCRUM/lc\:4APT-PS:3222/April 3, 1996/a:A:CARDR-RE.396
LCRUM
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION A
34S COURTLAND STREET, N.E.
ATLANTA. GEORGIA 30365
MS 2} jftg
4RC
Oscar C. Carr, III, Esquire
Glankler Brovm
One Commerce Square
Seventeenth Floor
Memphis, Tennessee 38103
SUBJ: Request for Deposition Testimony by EPA Employees in
North Hollywood Dump Superfund Site Litigation
Dear Mr. Carr:
The purpose of this letter is to provide a formal response
to your request for deposition testimony by EPA employees in the
above-referenced litigation, expressed in your December 21, 1995
letter addressed to Kathy Urbach of this Office on behalf of your
clients, the City of Memphis and Velsicol Chemical Corporation.
That letter, which followed the issuance of deposition subpoenas
naming seven current EPA Region 4 employees, outlines general
subjects on which you want testimony, and gives reasons why you
believe the Agency should agree to provide it. Ms. Urbach
subsequently received a letter from attorney Vincent B. Stamp,
representing parties opposing your clients in this litigation,
expressing opposition to any arrangement you might make with EPA
to limit the scope of these depositions, were they to go forward.
As you have acknowledged, Agency regulations at 40 C.F.R.,
Part 2, Subpart C, govern testimony by EPA employees on official
matters, either voluntarily or in response to subpoenas, in any
proceeding to which the United States is not a party. The
express 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 or
production of documents when clearly in the interests
of EPA. 40 C.F.R. § 2.401(c).
To achieve this purpose, the regulations provide that employees
of EPA may testify in-private actions only where the EPA General
Counsel or his designee determines that their testifying would
"clearly be in the interests of EPA." 40 C.F.R. § 2.403. As
Acting Regional Counsel, I am that designee for determinations
involving testimony by Region 4 employees.
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2
Following consultation with the employees named in the
subpoenas and other Regional personnel and after careful
consideration of the issues and arguments raised in your letter,
I am unable to make the requisite determination that allowing
these seven employees to provide deposition testimony in this
litigation would "clearly be in the interests of EPA." As I
trust you will agree, a very significant amount of official
Agency time would necessarily be expended in the course of
providing the number of depositions you have sought, increased
for this particular litigation by the parties' inability to agree
to meaningful limitations on the scope of inquiry. The seven
named employees currently occupy a range of important positions
in this Region's Waste Management Division -- up to and including
the Acting Director of that Division -- with responsibilities for
the remediation of a great number of hazardous waste sites, each
of which has the potential to spawn the same type of private
party litigation for which you now seek testimony.
Most of these employees have not dealt personally with the
North Hollywood Dump site in some time, and would be relying for
their factual testimony on the information contained in the
written record of the case. That record has been and will
continue to be fully available to all parties to your litigation,
with authentication available as provided for at 40 C.F.R.
§2.406. To the extent that you seek to elicit testimony
involving expert and/or legal opinions, such as conclusions about
whether costs were "consistent with the NCP,n testimony of this
kind is certainly available from non-Agency witnesses.
Particularly in this period where budget constraints require that
Agency resources be devoted to high-priority activities, you have
not provided me with sufficient cause to conclude that the
expenditure of employee time required to comply with your request
is justified under EPA regulations.
Accordingly, the Agency will not voluntarily be providing
the deposition testimony you have requested. Because Ms. Urbach
has recently left the Agency, I have asked Lawrence Neville (404-
347-3555, ext. 2266) to be the ORC attorney contact for any
future communications on this matter.
Sincerely,
William D. Anderson
Acting Regional Counsel
cc: Vincent B. Stamp, Esq.
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las)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
345 COURTLAND STREET. N.E.
ATLANTA. GEORGIA 3036S
4RC
Andrew Robert Greene, Esq.
Bradley, Arant, Rose & White
1400 Park Place Tower
2001 Park Place
Birmingham, AL 35203
SUB J i Request for Deposition Testimony by Steve Sisurlin
Dear Mr. Greenes
We are in receipt o£ your letter dated December 15, 1994, to
William D. Anderson concerning the desire of your client,
Rayethon Engineers and Constructors, for deposition testimony by
Region IV Waste Management Division employee Steve Spurlin on
matters involving cleanup activities at a site in Shelby County,
Alabama, the subject of private litigation to which your client
is a party.
EPA regulations at 40 C.F.R., Part 2, Subpart C, contain
restrictions on EPA employees giving testimony regarding official
matters, either voluntarily or in response to subpoenas, in any
proceeding to which the United States is not a party. The stated
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 note used for private purposes and to establish
procedures for approving testimony or production of
documents when clearly in the interests of EPA.
40 C.F.R. S 2.401(c).
To achieve this purpose, these regulations provide that employees
of EPA may testify in private actions only where the EPA General
Counsel or her designee determines that their testifying would
"clearly be in the interests of EPA." As Regional Counsel, I am
the designee of the General Counsel for determinations about
testimony by Region IV employees.
After consultation with Mr. Spurlin ana other Regional
personnel and consideration of the issues and arguments raised in
your letter, I am unable to make the requisite determination that
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2
allowing Mr. Spurlin to testify in this private lawsuit would
"clearly be in the interests of EPA." Accordingly, I must inform
you that the Agency will not voluntarily be providing the
requested testimony, under a subpoena or otherwise, in this
matter.
Sincerely,
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? UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
%REGION IV
343 COURTUANO STREET ' J
ATLANTA. GEORGIA 30383
MS 11 1986
REF: 4RC
Philip D. Fairbanks, Esquire
Graber, Baldwin and Fairbanks
605.Carteret Street
Beaufort, South Carolina 29902
Rfe: Alcoa South Carolina,. Inc.
(Public Notice No. 84-3T-254)
Dear Mr. Fairbanks:
Your letter of. July 28, 1986 to Mr. Jack E. Ravan concerning
the availability of EPA technical personnel to testify in
a possible Sierra Club lawsuit in opposition to the above-
referenced project has been referred to me for response.
According to established policy of this Agency [50 Federal
Register 32386 (August 9, 1985)], EPA employees may not
voluntarily be provided as witnesses in support of private
litigants unless the Agency's General Counsel or his designee
determines that their testimony would clearly be in the interests
of EPA. As designee of the General Counsel for Region IV, it
is my responsibility to make that determination in the situation
that your letter presents.
After consultation with Mr. Ravan and careful consideration of
this Region's prior actions with respect to the above-referenced
permit application, I am unable to make the requisite determina-
tion and therefore must advise you that EPA witnesses would not
be voluntarily provided for the action which the Sierra Club is
contemplating. I believe that Mr. Ravan* s .letter of March 5,
1986 to LTC F. Lee Smith, Jr., Charleston (S.C.) District
Engineer, adequately states this Agency's position on environ-
mental issues raised by the proposed Dataw Island marina project.
Moreover, I do not believe that,, at least in this instance, it
would be appropriate for this Agency to pursue its technical
disagreements with the South Carolina Department of Health and
Environmental Control and/or the U.S. Army Corps of Engineers
by means of private litigation.
This Agency recognizes that, on many occasions, the Sierra Club
has been an important force for environmental protection in
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South Carolina and, indeed, throughout the nation. I regret
that we will not be able to comply with your request in this
case.
Sincerely,
rargent
RegionalMlounsel
cc: James S. Chandler, Jr., Esquire
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A \
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY.
REGION 4
ATLANTA FEDERAL CENTER
61 FORSYTH STREET
ATLANTA, GEORGIA 30303-8960
I*
4EAD
VIA FACSIMILE & CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. J. Charles Ormond, Jr.
Holler, Dennis, Corbett & Garner
1777 Bull Street at laurel
Columbia, South Carolina 29201
Subject: Denial of Request for Affidavit Testimony
Dear Mr. Ormond:
This is in response to your July 28, 1998, letter requesting
that Mr. David McNeal, an employee of the Environmental
Protection Agency (EPA), provide affidavit testimony,
specifically, with respect to conversations between Mr. McNeal,
and your client, Ms. Michelle Keith, on November 7, and
November 10, 1997. EPA is denying this request', based on the
reasons set forth below.
EPA regulations at Title 40, Code of Federal Regulations,
Part 2, Subpart C, generally prohibit EPA employees from
testifying "... concerning information acquired in the course
of performing official duties or because of the employee's
official status . . either voluntarily or in response to
subpoenas, in any proceeding in which the United States is not a
party to the litigation. 40 C.F.R. § 2.401(b). The authority for
these regulations is Title 5, United States Code, § 301 (Federal
Housekeeping Statute). See also U.S. ex rel. Touhv v. Raqen, 340
U.S. 462 (1951) (similar Department of Justice housekeeping
regulation validly promulgated under § 301).
The purpose of the regulation 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 or
production of documents when clearly in the interests
of EPA." § 2.401(c).
Internet Address (URL) • http://www.epa.gov
Recycled/Recyclable •Printed wRh Vegetable OU Based Into on Recycled Paper (MMnum 25% Postconsumei)
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2
The concerns given expression in § 2.401(c) are important to
the Agency because of the potential number of private lawsuits in
which EPA employees could be requested to testify if the
regulations are not properly applied. The cumulative effect of
providing EPA witnesses to private litigants when EPA is not a
party would constitute an improper diversion of EPA resources for
private purposes. Moore v. Armour Pharm. Co.. 927 F.2d 1194, 1198
(11th Cir. 1991). EPA resources are severely limited, and EPA
cannot permit private litigants to use the duty time of federal
employees for the numerous proceedings in which their testimony
might be requested. Providing official time for testimony in this
matter may also be perceived as a failure by EPA to maintain
impartiality among private litigants.
Unless requested by another Federal agency or state or local
government, employees may testify only where the General Counsel
or his designee, determines that the testimony would be "clearly
in the interests of EPA." In EPA Region 4, I am the designee of
the General Counsel for purposes of determining whether
compliance with a request for testimony is "clearly in the
interests of EPA."
In order to meet the standard of being "clearly in the
interests of EPA" under Subpart C, in your letter of July 28,
1998, you stated that having Mr. McNeal provide affidavit
testimony in this instance, would enhance EPA and its goals of
public policy and industrial compliance. Under the circumstances
of this case, we cannot determine that providing Mr. McNeal's
affidavit testimony, would be in the interests of EPA. Any
testimony which may be given in this suit has been made available
to you in writing. Specifically, EPA has already provided Ms.
Keith with copies of Mr. McNeal's dated notes, and information
regarding 40 C.F.R. Part 61, Subpart J. Furthermore, pursuant to
the Freedom of Information Act (FOIA), Mr. McNeal's notes were
provided to Mr. Eric C. Schweitzer, Esq., Ogeltree, Deakins,
Nash, Smoak & Stewart, opposing counsel, on February 25, 1998.
To provide affidavit testimony, in light of this, would be
cumulative.
After careful consideration of the factors indicated above,
I have determined that providing an affidavit testimony of Mr.
McNeal, would not,be "clearly in the interests of EPA." I find
the lawsuit to be a purely private matter. The outcome of the
litigation will not advance the interest of any EPA program,
function or responsibility. As a result, EPA has no clear
interest in permitting its employees to testify.
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3
Finally, as provided in 40 C.F.R. § 2.406, EPA will
"authenticate" any available records for purposes of
admissibility, if you request us to do so. There is a $25.00 fee
for each such "authentication."
Mr. Douglas Neeley, Chief of the Air and Radiation
Technology Branch, has also been properly consulted regarding
this matter, in accordance with 40 C.F.R. § 2.403.
Should you have any questions regarding this matter, please
contact Ms. Melissa Ward of my staff, at 404-562-9556.
Sincerely,
Phyllis P. Harris
Regional Counsel
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pvf lit"
August 19, 2008
Ms. Sandra Kaczmarczyk
Jones Day
51 Louisiana Avenue, N.W.
Washington, D.C. 2001-2113
Re: Request and Subpoena for Deposition Testimony of Craig Zeller in the
matter of
Ashley II of Charleston, LLC v. PCS Nitrogen, Inc., U.S. District Court, District of
South
Carolina, Charleston Division, Civil Action No. 2:05-2782-CWH
Dear Ms. Kaczmarczyk:
The purpose of this letter is to respond to your request, as made by letter dated
August 4, 2008, to attorney Kim Jones of my staff, for the deposition testimony of
Environmental Protection Agency (EPA) employee Craig Zeller, in connection with a
private party lawsuit titled Ashley II of Charleston, LLC v. PCS Nitrogen, Inc. Through
your August 4 letter and two issued subpoenas, you have purported to require the
testimony of Mr. Zeller.
As Ms. Jones has explained in her letter to you, dated July 22, 2008, EPA
regulations at 40 C.F.R. Part 2, Subpart C, prohibit EPA employees from providing
testimony or producing documents, either voluntarily or in response to subpoenas, in any
proceeding in which the United States Government is not a party, unless EPA's General
Counsel or his/her designee finds that to do so is clearly in the interest of the Agency.
40 C.F.R. §§ 2.401 through 2.405. As Regional Counsel of Region 4,1 am the designee
of EPA's General Counsel for testimony requests made to Region 4 employees.
The stated purpose of the Subpart C 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 or production of documents when clearly in the interest of EPA."
40 C.F.R. § 2.401(c)
The concerns reflected in § 2.401(c) are more than understandable given the
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potential number of private lawsuits in which EPA could be subpoenaed to provide
testimony or produce documents. Private litigation which relates to EPA's activities is
common, and private litigants often seek documents and testimony from EPA
nationwide. The cumulative effect of providing EPA resources to respond to numerous,
broad-based subpoenas from private litigants in matters where EPA is not a party, and
often in extremely tight time frames, would constitute an improper and potentially
devastating diversion of EPA resources for private purposes.1
Pursuant to 40 C.F.R. § 2.404, EPA determines whether compliance with the
subpoena would clearly be in the interests of EPA and responds as soon as practicable.
In order to assist us in making this determination, you were asked by EPA to provide
information regarding the nature of the requested testimony and the reasons why the
testimony would be clearly in the interests of EPA. As to the nature of the testimony,
your letter response of August 4, 2008, states that Mr. Zeller's testimony is necessary
because, in 1997, Mr. Zeller allegedly identified the acid chambers used to produce
sulfuric acid as the primary source of contamination at the Columbia Nitrogen Site. In
support of that claim you quote from page 4 of a December 1997 memorandum by Mr.
Zeller entitled "Former Phosphate/Fertilizer Plants Initiative," as follows: u[t]he acid
chambers represent the most relevant feature of phosphate/fertilizer operations
regarding the potential for adverse environmental impacts." You then go on to state that
"Mr. Zeller provides no support for this statement. There is no other support for this
statement in the administrative record for the Site."
It goes without saying that the "Former Phosphate/Fertilizer Plants Initiative"
memorandum speaks for itself. However, I would point out that, based upon my review,
the language you quote does not support your claim that Mr. Zeller identified the acid
chambers as the primary source of contamination on the Site. It merely states that,
based on an aerial analysis, the acid chambers represent the most relevant feature,
among several other significant environmental features of the numerous
phosphate/fertilizer operations being reviewed, with regard to potential adverse
environmental impacts. Mr. Zeller draws no conclusion in the memorandum about
whether the chambers are, in fact, a source of contamination. Indeed, he could not
draw such a conclusion as the memorandum summarized only an initial study of limited
scope designed to provide a preliminary summary of phosphate facilities which could
potentially be referred to EPA for further response. The investigative activities on which
the memorandum was based do not appear to have been designed to provide a
characterization of the nature and extent of contamination at any of the various facilities
which were the subject of the former phosphate/fertilizer plants initiative.
With regard to the Columbia Nitrogen Site, the Remedial Investigation/Feasibility
Study (RI/FS) conducted by EPA from 1998-2001 is the document which characterized
and determined the nature and extent of contamination and any threat to the public
health, welfare or the environment caused by a release or threatened release of
1 See. Moore v. Armour Pharm. Co., 927 F.2d 1194 (111)1 Cir. 1991).
2
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hazardous substances, pollutants or contaminants at the Site. The RI/FS, and all other
scientific information on which the characterization of Site contamination was made are
contained in the administrative record of the Site, which is accessible to you through the
Freedom of Information Act (FOIA). Your letter fails to explain why any knowledge Mr.
Zeller might have of the Site beyond that which is reflected in EPA documents and
records, is relevant, let alone critical, to the pending suit.
As to the reasons why the requested testimony would be clearly in the interests of
EPA, your letter of August 4, makes only general statements that "Mr. Zeller's
testimony is clearly in EPA's interests." You do not explain how or why Mr. Zeller's
testimony would be helpful in resolving any issues related to your private lawsuit or why
any information he might provide cannot otherwise be obtained from Agency records or
other sources.
An important part of EPA's analysis of whether to provide employee testimony is
to review EPA's role in the underlying dispute between the parties. EPA is not involved
in this litigation, the purpose of which is for private parties who have been involved with
this Site to resolve their relative liabilities amongst themselves. In such a case, the
Agency has a strong institutional interest in maintaining impartiality among private
litigants. You have expressed no reason to believe that Mr. Zeller's testimony is
necessary, or even important, to the resolution of liability issues at the Site. In addition,
Mr. Zeller has no information or knowledge independent from the existing Columbia
Nitrogen Site administrative record, material from which may be made available through
a FOIA request.
Under the circumstances, after a review of all the information provided to me, and
after consultation with the Region 4, Superfund Division Director, I cannot conclude that
the provision of testimony by this EPA employee, whether voluntarily or under subpoena,
is an appropriate use of EPA time and resources, or that it can be considered "clearly in
the interests of EPA." In fact, this is a situation in which EPA's expressed and codified
interests in ensuring that employees' official time is used only for official purposes,
maintaining impartiality among private litigants, and ensuring that public funds are not
used for private purposes, appear particularly compelling and strongly weigh against the
provision of such testimony and compliance with the subpoenas. Consequently, I have
decided to deny approval to comply with the subpoenas and I request that you withdraw
these subpoenas immediately. If the subpoenas are not withdrawn, pursuant to 40
C.F.R. § 2.404(b), Mr. Zeller will appear, produce a copy of the 40 C.F.R. Part 2, Subpart
C regulations and respectfully refuse to provide any testimony. EPA will also request
that the Assistant United State's Attorney file a Motion to Quash the subpoenas in
federal district court.
Sincerely,
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Mary J. Wilkes
Regional Counsel and Director
Office of Environmental Accountability
cc: Craig Zeller
Neeli Ben-David, Assistant U.S. Attorney
4
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5wWi
p*w.r
Ms. Wendy L. Wilke, Esq.
Hagood and Kerr, P.A.
654 Coleman Blvd.
Mount Pleasant, South Carolina 29464
Re: Request and Subpoena for Deposition Testimony of Craig Zeller in the matter
of Ashley II of Charleston, LLC v. PCS Nitrogen, Inc., U.S. District Court,
District of South Carolina, Charleston Division, Civil Action No. 2:05-2782-
CWH
Dear Ms. Wilke:
The purpose of this letter is to respond to your request, as made by letter dated
July 1,2008, to attorney Kim Jones of my staff, for the deposition testimony of EPA
employee Craig Zeller, in connection with a private party lawsuit titled Ashley II of
Charleston, LLC v. PCS Nitrogen, Inc. Through your July 1 letter and two subsequently
issued subpoenas, you have requested Mr. Zeller's voluntary testimony pursuant to 40
C.F.R. § 2.403 or, alternatively, you have purported to require his subpoenaed testimony.
As Ms. Jones explained in her letter to you dated July 21,2008, EPA regulations
at 40 C.F.R. Part 2, Subpart C, prohibit EPA employees from providing testimony or
producing documents, either voluntarily or in response to subpoenas, in any proceeding in
which the United States Government is not a party, unless EPA's General Counsel or
his/her designee finds that to do so is clearly in the interests of the Agency. 40 C.F.R. §§
2.401 through 2.405. As Regional Counsel of Region 4,1 am the designee of EPA's
General Counsel for testimony requests made to Region 4 employees.
The stated purpose of the Subpart C 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 or
production of documents when clearly in the interest of EPA." 40
C.F.R. § 2.401(c).
The concerns reflected in Section 2.401(c) are more than understandable given the
potential number of private lawsuits in which EPA could be subpoenaed to provide
testimony or produce documents. Private litigation which relates to EPA's activities is
common, and private litigants often seek documents and testimony from EPA nationwide.
The cumulative effect of providing EPA resources to respond to numerous, broad-based
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subpoenas from private litigants in matters where EPA is not a party, and often in
extremely tight time frames, would constitute an improper and potentially devastating
diversion of EPA resources for private purposes.1
Pursuant to 40 C.F.R. § 2.404, EPA determines whether compliance with the
subpoena would clearly be in the interests of EPA and responds as soon as practicable. In
order to assist us with this determination, you were asked by EPA to provide information
on the nature of the requested testimony and the reasons why the testimony would be
clearly in the interests of EPA. As to the nature of the testimony, your letter of July 1,
2008, states merely that your clients, Mr. Holcombe and Mr. Fair:
"took actions at the Site during the relevant time period. The EPA documents do
not fully reflect Mr. Zeller's knowledge of the Site and the actions of Mr.
Holcombe and Mr. Fair. The only way to obtain this information is through the
testimony of Mr. Zeller."
Your letter fails to explain why any knowledge that Mr. Zeller might have of the
Site or your clients' actions, beyond that which is reflected in EPA documents and
records, is relevant, let alone critical, to the pending suit. Moreover, your clients certainly
have knowledge of their own actions. Therefore, Mr. Zeller's deposition is not the only
way this information can be obtained.
As to the reasons why the requested testimony would clearly be in the interests of
EPA, your July 1 letter makes only the general statements that "(t)he deposition testimony
would be in the interest of EPA by assisting to resolve the dispute of liability and
allocation among the Potentially Responsible Parties (PRPs)," and that it might "assist in
providing information necessary to all parties for obtaining a settlement through
mediation, which is in the best interest of EPA." You do not explain how or why Mr.
Zeller's testimony would be helpful in resolving the liability or allocation issues or why
any information he might provide cannot otherwise be obtained from Agency records or
other sources.
By letter dated August 18, 2008, you provided additional information on the
reasons that you seek Mr. Zeller's testimony and why you believe the provision of this
testimony would be clearly in the interests of EPA. In your August 18 letter, you state
that you are seeking Mr. Zeller's factual testimony as to what he saw, heard and said
regarding the Site and argue that:
"[t]he parties' actions at the site following EPA's involvement and at EPA's
direction are relevant to identifying responsible parties for contamination at the Site and
to allocating costs among the responsible parties. The EPA documents related to this site
provide some background information but are incomplete and do not provide the
necessary factual information without Mr. Zeller's testimony... .Mr. Zeller's deposition
1 See, Moore v. Armour Pharm. Co., 927 F.2d 1194 (11th Cir. 1991).
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would clearly be in the interests of EPA because his testimony will assist in resolving the
dispute as to liability and allocation of costs among the alleged potentially responsible
parties."
Your letter does identify the "necessary factual information" that you contend Mr.
Zeller's testimony would provide that is not otherwise available from site records, your
clients, or other non-EPA witnesses. Likewise, you do not explain how or why Mr.
Zeller's testimony would assist in resolving the liability or allocation issues or why any
information he might provide cannot otherwise be obtained from Agency records or other
sources.
As your letters correctly note, EPA is not involved in this litigation, the purpose of
which is for private parties who have been involved with this Site to resolve their relative
liabilities amongst themselves. You have provided no basis to believe that Mr. Zeller's
factual testimony is necessary, or even important, to the resolution of these
liability/allocation issues. In particular, you have provided no basis to believe that Mr.
Zeller's testimony would reveal any relevant, additional information about the Columbia
Nitrogen Site that is not otherwise available to you from your own clients, other witnesses
or from the Agency1 site file. With regard to the Columbia Nitrogen Site, the Remedial
Investigation/Feasibility Study (RI/FS) conducted by EPA from 1998-2001 is the
document which characterized and determined the nature and extent of contamination and
any threat to the public health, welfare or the environment caused by a release or
threatened release of hazardous substances, pollutants or contaminants at the Site. The
RI/FS, and all other scientific information on which the characterization of Site
contamination was made is contained in the administrative record of the Site, which,
along with any other documents in the Agency's files, is accessible to you through the
Freedom of Information Act (FOLA). For these reasons, I cannot agree with the
contention in your August 18 letter that Mr. Zeller's deposition would not alter the
impartiality of EPA or that it would preserve EPA resources by assisting in the resolution
of the allocation dispute among the private party litigants.
Under the circumstances, after a full consideration of all information that has been
provided to me, and after consultation with the Region 4, Superfund Division Director, I
cannot conclude that the provision of testimony by this EPA employee, whether
voluntarily or under subpoena, is an appropriate use of EPA time and resources, or that it
can be considered "clearly in the interests of EPA." In fact, this is a situation in which
EPA's expressed and codified interests in ensuring that employees' official time is used
only for official purposes, maintaining impartiality among private litigants, and ensuring
that public funds are not used for private purposes, appear particularly compelling and
strongly weigh against the provision of such testimony and compliance with the
subpoenas. Consequently, I have decided to deny approval to comply with the
subpoenas. If the subpoenas are not withdrawn, pursuant to 40 C.F.R. § 2.404(b), Mr.
Zeller will appear, produce a copy of the 40 C.F.R. Part 2, Subpart C regulations and
respectfully refuse to provide any testimony. EPA will also request that the Assistant
United State's Attorney file a Motion to Quash the subpoenas in federal district court.
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Sincerely,
Mary J. Wilkes
Regional Counsel and Director
Office of Environmental Accountability
cc: Craig Zeller
Neeli Ben-David, Assistant U.S. Attorney
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
ATLANTA FEDERAL CENTER
61 FORSYTH STREET
ATLANTA, GEORGIA 30303-8960
JUN 1 3 im
P. Benjamin Zuckerman
Greenberg Traurig, LLP
Suite 400
5100 Town Center Circle
Boca Raton, Florida 33486
Re: Subpoena to the United States Environmental Protection Agency
Sabre Technical Services, LLC v. 5401 Broken Sound, LLC
American Arbitration Association Case Number 13 192 Y 01095 07
Dear Mr. Zuckerman:
The purpose of this letter is to respond to the subpoena served upon the U.S.
Environmental Protection Agency at your request on April 22, 2008, in the matter of Sabre
Technical Services, LLC v. 5401 Broken Sound, LLC. Your subpoena requested that EPA
produce documents relating to the cleanup of anthrax found in the AMI Building at 5401 Broken
Sound Boulevard in Boca Raton, Florida. After careful consideration, EPA hereby notifies you
that your request is denied for the reasons discussed below.
Pursuant to EPA regulations at 40 C.F.R. Part 2, Subpart C, EPA employees are
prohibited from complying with subpoenas for documents or requests for testimony about
official matters, either voluntarily or in response to subpoenas, in any proceeding in which the
United States Government is not a party, unless EPA finds that to do so is clearly in the interests
of the Agency. 40 C.F.R, §§ 2.403-2.405. The purpose of the 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 or production
of documents when clearly in the interest of EPA." 40 C.F.R. § 2.401(c).
Section 2.401(c) addresses concerns that are important to the Agency because of the
potential number of private lawsuits in which EPA could be subpoenaed to produce documents.
The cumulative effect of providing EPA resources to respond to broad-based subpoenas for
private litigants in extremely tight time frames when EPA is not a party would constitute
improper diversion of EPA resources for private purposes.1 Private litigation which relates to
EPA's activities is common, and private litigants often seek documents and testimony from EPA
nationwide.
See, Moore v. Armour Pharm. Co., 927 F.2d 1194 (llIh Cir. 1991).
Internet Address (URL) • http://www.epa.gov
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Your subpoena did not provide any reasons why complying with this subpoena request
would "clearly be in the interests of EPA" under Subpart C. By letter dated May 2, 2008, EPA
invited you to provide any such reasons you cared to submit for consideration, but EPA has
received no response.
An important part of EPA's analysis is to review EPA's role in the underlying dispute
between the parties. In this case, Sabre Technical Services, LLC, and 5401 Broken Sound, LLC,
are trying to resolve a contractual dispute through arbitration. EPA is not a party to this
arbitration. It is difficult to see how complying with this subpoena request for documents is an
appropriate use of EPA time and resources or can be considered "clearly in the best interests" of
Therefore, after careful consideration of the factors indicated above, I have determined
that complying with this subpoena would not be "clearly in the interests of EPA." Pursuant to
Section 2.405 of Subpart C, your subpoena will be treated as a request for documents under the
Freedom of Information Act (FOIA) and 40 C.F.R. Part 2, Subparts A and B.
Your FOIA request was activated on May 30, 2008, and has been assigned the following
number: 4-RIN-00499-08. Karen Cody of the Region 4 FOIA Office will be handling your
request. If you have any questions, you may reach her by phone at (404) 562-9167. EPA will
respond to your request, in writing, within 20 work days of the activation date, although the
initial response may be a notice of extension of time due to:
EPA intends to combine your FOIA request with the request made by your law firm on
June 21, 2005, for these same documents (4-RLN-00659-05). Although the earlier request has
been on appeal for some time, EPA expects to be able to resolve the appeal within the same
period of time necessary to respond to your latest request.
EPA.
The need to search for and collect records from other offices;
• The need to search for, collect and examine a voluminous amount of information;
and/or;
The need to consult with another agency or EPA office.
Mary J. Wilkes
Regional Counsel and Director
Office of Environmental Accountability
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Nancy Tommelleo, EPA Region 4
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
ATLANTA FEDERAL CENTER
61 FORSYTH STREET
ATLANTA, GEORGIA 30303-8960
<0*-
SEP I 2 2002
Jeffrey N. Schwartz
Hawkins & Pamell, LLP
4000 SunTrust Plaza
303 Peachtree Street, N.E.
Atlanta, Georgia 30303-3243
Re: Jim K. Littell v. Eddie Battle. Jr. and Southeastern Utilities Contractors. Inc.
Civil Action No. 00-CV-957-X
Dear Mr. Schwartz:
A subpoena dated August 22, 2002, was served on EPA employee, Mr. Archie Lee, and
purports to require that he appear for examination on deposition by defendant in the above-stated
matter and to produce copies of documents identified in "Exhibit A" of the subpoena. It is my
understanding that prior to the issuance of the subpoena, you were informed by Karol Berrien,
Associate Regional Counsel,-that pursuant to 40 C.F.R. Part 2, Subpart C, 'Testimony by
Employees and Production of Documents in Civil Legal Proceedings Where the United States is
not a Party," the Agency is required to make a determination whether compliance with the
subpoena would clearly be in the interests of EPA before an employee is allowed to provide
testimony. The regulations set forth specific procedures for requesting testimony and the
production of documents including the requirement that such request be made in writing, stating
the nature of the requested testimony and why the testimony would be in the interests of EPA.
Subsequently, in a letter dated August 28, 2002, pursuant to 40 C.F.R. § 2.403, you
submitted a voluntary request for the testimony of Mr. Lee as well as another employee, Steve
Prince, the Director of Personnel, and included a copy of a subpoena that you intend to serve
directing Mr. Prince to appear for a deposition and to produce a list of documents. According to
your letter, Mr. Littel, the former EPA employee and plaintiff in this case, is suing your clients
(defendants) for damages allegedly resulting from an automobile accident. Mr. Littel has
claimed that his retirement was a result of the injuries sustained in the accident.
The EPA regulations referenced above, prohibit EPA employees from testifying about
official matters, either voluntarily or in response to subpoenas, in any proceeding in which the
United States Government is not a party, unless authorized by the General Counsel or his
designee to do so. I currently serve as the General Counsel's designee in EPA Region 4. These,
regulations commonly referred to as the Touhy regulations are based on the U.S. Supreme
Court's decision in U.S. ex rel. Touhv v. Raeen. 340 U.S. 462 (1951).
Internet Address (URL) • http://www.epa.gov
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2
As part of the federal executive branch, EPA has sovereign immunity and is not
considered to be subject to the subpoena powers of state courts.1 Nonetheless, EPA has carefully
reviewed and considered the information being sought pursuant to the subpoena. In determining
whether providing testimony is in the best interests of the Agency, EPA typically weighs several
factors including: ensuring that the employees' official time is used only for official purposes,
maintaining the impartiality of EPA among private litigants, and ensuring that public funds are
not used for private purposes. Depending on the nature and sensitivity of the information that is
sought, other factors may have to be considered as are appropriate, including the adverse effect of
an Agency employee providing sensitive information gained in the performance of official duties.
The Agency is generally concerned about the diversion of its staff from their official
duties which is well founded in light of limited resources. Pursuant to the subpoena, you are
seeking to depose Mr. Archie Lee who is currently the Chief of the Superfund & Air Monitoring
Section, Science and Ecosystem Support Division. Mr. Lee in his current capacity is tasked with
supervising twenty five employees. Similarly, as Director of Personnel for the Region, Mr.
Prince supervises a staff of over twenty employees and is responsible for the Human Resources
Management Program for the Region. Based on the many responsibilities of both Messrs. Lee
and Prince, their official time is heavily encumbered, and to divert their time to prepare for and to
provide testimony in litigation to which the United States is not a party would not possibly
further any "official purpose" pursuant to 40 C.F.R. § 2.401(c).2
Additionally, while the time for any one employee used to testify in private litigation may
not seem great in the abstract, the cumulative disruption to EPA's mission would be severe if
EPA employees had to testify in private litigation every time such testimony is demanded,
especially in lawsuits that involve a common occurrence such as a automobile accident.
Further, when official government business is the subject of a deposition, it is common for
Agency counsel to attend as well as an Assistant United States Attorney. Thus, several federal
employees' time is utilized for private litigation over which the federal agency has no interest.
EPA resources are severely limited and we cannot permit private litigants to use the duty time of
federal employees for numerous proceedings.
See Touhv: Houston Bus. Journal v. Office of Comp. Treas. Dept.. 86 F.3d 1208
(D.C. Cir. 1996); Connaueht Laboratories v. Smith Kline Beecham. 1998 U.S. Dist. Lexis 8586
(D.Del 1998) and Exxon Shipping Co. v. U.S. Dept. of Interior. 34 F.3d 774 (9th Cir. 1994)
['The limitations on a state court's subpoena and contempt powers stem from the sovereign
immunity of the United States"].
2 The purpose of the 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 or production of documents when clearly in the interests of EPA."
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3
Furthermore, because of the nature and sensitivity of the documents identified in the
subpoena which includes, but is not limited to, documents that relate to Mr. Littell's salary,
retirement benefits, job performance, evaluation and medical and health records, coupled with
the expected content of both the testimonies of Messrs. Lee and Prince, EPA is greatly concerned
about the impact of releasing this information because of the implications of the Privacy Act of
1974. Pursuant to the " No Disclosure3 Without Consent Rule" of the Privacy Act," No agency
shall disclose any record which is contained in a system of records by any means of
communication to any person, or to another agency, except pursuant to a written request by, or
with the prior written consent of, the individual to whom the record pertains."4 The information
being sought through testimony and production of documents clearly falls within the "records"
that are protected under the Privacy Act. Based on your letter dated August 28, 2002, Mr. Littel
has not yet signed a waiver to release his "personnel file." The case law covering the "no
disclosure rule"of the Privacy Act clearly supports a strict interpretation of the rule.5
There are twelve exceptions to the "No Disclosure Without Consent Rule," two of which
warrant discussion in this instance: (1) the court order® and (2) the Freedom of Information Act
(FOIA)1 disclosure exemptions. There is some uncertainty surrounding the meaning of a "court
order." Without any assistance from the legislative history of the Privacy Act, several courts
have held that a subpoena routinely issued by a court clerk is not a court order within the
meaning of this exception because it is not specifically approved by a judge.8 The prevailing
position is. that Section 552a(b)(ll) provides for those cases in which, for compelling reasons,®
the court specifically directs that a record be disclosed. The mere issuance in discovery
3 A "disclosure" can be by any means of communication-written, oral, electronic or
mechanical.
4 5 U.S.C. § 552a(b).
s In Pilon v. United States Dep't of Justice. 73 F.3d 1111 (D.C. Cir 1996), the court
held that the Justice Department's transmission of a Privacy Act-protected record to a former
employee of the agency constituted a "disclosure" under the Privacy Act, even though the
recipient had come into contact With the record in the course of his duties while an employee.
f(Osbourne v. United States Postal Serv. No. 94-30353 at slip op. at 2-4 (N.D. Fla. May 18.
1995); Gowan v. United States Dep't of the Air Force. 148 F.3d 1182 (10* Cir. 1998); Ouinn v.
Stone , 978 F.2d 126 (3rd Cir. 1992)].
6 5 U.S.C.§ 552a(b)(ll).
7 5 U.S.C. §552a(b)(2).
8 Doe v, DiGenova. 779 F.2d 74 (D.C. Cir.1985): Bruce v. United States. 621 F.2d
914 (8th Cir. 1980) and Stiles v. Atlanta Gas Light Co.. 453 F. Supp 798 (N.D. Ga. 1978).
9
Buford v. The State. 158 Ga. App. 763 (1981).
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4
proceedings of a subpoena which is always subject to the power of the court to quash or to limit,
does not meet this standard. Other courts have held that a subpoena is a court order where it is
required to be approved by the judge under state law,10 while a few have held that a subpoena
should be a "court order.'"1 Since this matter involves the protection of personal details of a
federal employee's service under the Privacy Act, the Agency must err on the side of caution.
The second exemption that is relevant to this matter is the FOIA exemption. If the
information falls within protected information under one of the FOIA exemptions, then it cannot
be disclosed. In this instance, Exemption 6 which covers "personnel, medical and similar files,"
is applicable, in light of the nature of the requested information. To qualify under this
exemption, information must be identifiable to a specific individual. Once it has been
established that information meets the threshold requirement of Exemption 6, the focus of the
inquiry turns to whether disclosure of the records at issue "would constitute a clearly
unwarranted invasion of personal privacy." This requires a balancing of the public's right to
disclosure against the individual's right to privacy.
The requested testimonial and documentary information clearly qualifies under the FOIA
Exemption 6 since it is about a specific individual, Mr. Littel, the former EPA employee, and
falls squarely within the "personnel information"category under FOIA Exemption 6. Regarding
whether the disclosure would constitute a clearly unwarranted invasion of privacy, courts have
generally recognized the sensitivity of information contained in personnel-related files and have
accorded protection to the personal details of a federal employee's service.12 While the Agency
can appreciate that the information would assist you in preparation for the private lawsuit, we
must balance that with the preservation of the right to privacy which affects a large group of
people and is afforded protection under the law. Therefore, under the FOIA exemption, the
Agency is prohibited from releasing Mr. Littel's personnel information without his extiress
waiver.
Moore v. United States Postal Service. 609 F.Supp 681 (E.D. N.Y. 1985); and
Adams v. United States Lines. No. 80-0952, slip op. at 2 (E.D. La. Mar. 16,1981).
11 Adams v. United States Lines. No. 80-0952, slip op. at 2-3 (E.D. La. March 16,
1981).
12 American Federation of Government Employees v. United States. 712 F.2d 93^
(4th Cir. 1983), (employees' home address); Barwick v. Cisneros. 941 F. Supp. 1015 (D.Kan.
1996) (personal information such as home addresses and telephone numbers, social security
numbers, dates of birth, insurance and retirement information, reasons for leaving prior
employment, and performance evaluation); and Plain Dealer Publishing Co. v. United States
Dept. of Labor. 471 F. Supp 458 (D.D.C. 1979) (medical personnel and related documents of
employees filing claims under the Federal Employees compensation Act).
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5
After careful consideration of the factors indicated above, I have determined that
providing the testimonies of Messrs. Lee and Prince and producing the documents identified in
the subpoenas would not be "clearly in the interest of EPA," pursuant to the regulations.
Furthermore, disclosing the requested information would place the Agency in the position of
violating an individual's fundamental right to privacy which is protected under the Privacy Act.
In light of the circumstances, we are requesting that you withdraw the subpoena that was issued
on August 22, 2002. If you have any questions concerning this matter, please contact Marlene J
Tucker of my staff at (404) 562-9536.
Sincerelv.
William D. Anderson
Deputy Regional Counsel
Environmental Accountability Division
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iM)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
ATLANTA FEDERAL CENTER
61 FORSYTH STREET
ATLANTA, GEORGIA 30303-8960
SEP I 2 2002
MEMORANDUM
SUBJECT: Request for the Testimonies of Archie Lee and Steve Prince
And the Production of Documents
FROM: Angelia Blackwell, Chief
Office of Air, Toxics & General Law * ' " port
TO: William D. Anderson, Deputy Regior :1
Environmental Accountability Division
The purpose of this memorandum is to provide a recommendation on "whether it is
clearly in the interest of EPA"1; to provide the testimonies of two EPA employees, Archie Lee
and Steve Prince in a private litigation where EPA is not a party. On August 22, 2002, Jeffrey
Schwartz of Hawkins & Parnell, LLP, attorney representing the defendants in a civil action,
served a subpoena on Mr. Archie Lee. The subpoena purports to require that he appear on
August 26, 2002, for examination on deposition in the civil action Jim Littell v. Eddie Battle. Jr.
and Southeastern Utilities Contractor. Inc. (OV-CV-957-X) and to produce documents identified
in "Exhibit A" of the subpoena. Accordingly, Mr. Littel, a former EPA employee and the
plaintiff in this case, is suing Mr. Schwartz's clients for damages allegedly resulting from an
automobile accident. Mr. Littel has claimed that his retirement was a result of the injuries
sustained in the accident. The subpoena was filed in Superior Court of Barrow County, State of
Georgia.
Mr. Lee is currently the Chief of the Superfund & Air Monitoring Section, Science and
Ecosystem Support Division in the EPA Office in Athens, Georgia. For a period of
approximately two years, Mr. Lee supervised Mr. Littel prior to his retirement from the Agency.
Prior to issuing the subpoena, Mr. Schwartz contacted Karol Berrien, Associate Regional
Counsel, via telephone to request Mr. Lee's testimony. During the telephone discussion, Ms.
Berrien apprised him of EPA's internal housekeeping regulations that govern the provision of
testimonial and documentary evidence by Agency employees in litigation to which EPA is not a
Pursuant to 40 C.F.R. § 2.403, when voluntary testimony is requested,
compliance with the request is conditional upon a finding that the request would clearly be in the
interests of EI^A.
Internet Address (URL) • http://www.epa.gov
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2
party. These regulations are commonly referred to as Touhy regulations.2 Notwithstanding the
discussion with Ms. Berrien, Mr. Schwartz proceeded to subpoena Mr. Lee and scheduled a
deposition with specific instructions for him to provide the following documents:
Each and every document relating to and in any way connected with the employment of
Jim Littell;
Each and every document relating to the salary and benefits of Jim Littell, including all
booklets;
All documents relating to job performance, including written evaluations; and
Each and every document relating to and in any way connected with the retirement
compensation and benefits information and any booklet or documents pertaining to
retirement benefits.
After Ms. Berrien became aware that a subpoena was served on Mr. Lee, she contacted the
United States Attorney General's Office and the matter was assigned to an Assistant United
States Attorney (AUSA), Ms. Pat Stout. During a telephone conversation, Ms. Stout also
advised Mr. Schwartz of the Touhy regulations.
Subsequently, in a letter dated August 28, 2002, pursuant to 40 C.F.R. § 2.403,
Mr. Schwartz submitted a voluntary request for the testimony of Mr. Lee as well as another
employee, Steve Prince, the Director of Personnel, and included a copy of a subpoena that he
intends to serve directing Mr. Prince to appear for a deposition as well as to produce a list of
documents. The draft subpoena iterated a more expansive list of documents similar to those
above-referenced that Mr. Prince will be instructed to produce.
After carefully reviewing the subpoena and the voluntary request for testimonies and
conducting research on the matter, I would further recommend that the Region request that the
assigned AUSA3 file a Motion to Quash the Subpoena for the reasons discussed below. To arrive
This refers to the U.S. Supreme Court's decision in United States ex rel. Touhy v.
Ragen, 340 U.S. 462 (1951). The Court affirmed the validity of the U.S. Department of Justice's
internal housekeeping regulations which withdrew all discretion from departmental employees to
release testimonial or documentary information in a judicial proceeding to which DOJ was not a
party.
3 The Memorandum "Appearance of EPA Employees in Response to Subpoenas
That are Subject to 40 C.F.R. Part 2. Subpart C" dated March 16,2001, from Maria Diamond,
Associate General Counsel, Finance and Operations Law Office to all the Regional Counsels,
states that ultimately the decision of whether a subpoenaed EPA employee should appear in court
must be made by the AUSA.
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3
at this determination several factors were weighed including sovereign immunity, the impact of
the Privacy Act of 1974 and Agency resource constraints.
Since the subpoena was issued by a state court, the first issue to be addressed pertains to
whether a federal agency is shielded by sovereign immunity prohibiting state court from
enforcing a subpoena. Based on prevailing case law, a state court is prohibited from enforcing a
subpoena against an employee of the federal government agency when the agency has validly
enacted regulations that withdraw the employee from the power to provide testimony of
documents (40 C.F.R. Subpart C).4 According to the courts, the requester must request the
testimony and or documents from the federal agency pursuant to the applicable regulations. If
the agency refuses to proffer the testimony and or documents then, the requester's recourse is to
file a collateral action in federal court under the Administrative Procedure Act (APA).5 The one
case that was found to hold a contrary position on this issue is distinguishable.6 In Buford. the
case involved a criminal action not a civil action and the information sought was material to the
defense and necessary for due process. Based on the prevailing case law, in this instance, the
Agency is not subject to the subpoena power of the Superior Court of Barrow County, State of
Georgia.
Notwithstanding the sovereign immunity issue, because of the nature of the testimony and
documents identified in the subpoenas, the Agency is concerned with the implications of the
Privacy Act of 1974, if Messrs. Lee and Prince are allowed to provide testimony and produce the
documents. It is apparent that Mr. Schwartz deems Mr. Lee's testimony critical to his case
because Mr. Lee supervised Mr. Littel for a period of time (albeit short). Mr. Prince's testimony
is being sought because he handles personnel information for the Region and is expected to
provide details about a variety of personal matters concerning Mr. Littel. In his letter, Mr.
Schwartz indicated that the requested information is pertinent to refute Mr. Littel's claim that he
4 Houston Bus. Journal v. Office of Comp. Treas. Dept.. 86 F.3d 1208 (D.C. Cir.
1996); Connaught Laboratories v. Smith Kline Beecham. 1998 U.S. Dist. Lexis 8586 (D.Del
1998) and Exxon Shipping Co. v. U.S. Dept. of Interior. 34 F.3d 774 (9th Cir. 1994) [ "The
limitations on a state court's subpoena and contempt powers stem from the sovereign immunity
of the United States"]; and See Touhv.
5 Edwards v. Dept. of Justice. 43 F 3d 312 (7th Cir. 1994) [state proceeding to
compel DOJ production of documents removed to federal court, recast as APA action by
agreement of parties] and; Boron oil Co. v. Downie 873 F.2d 67 (4th Cir. 1989) [ Agency
removed subpoena proceedings to federal court, the court ordered the employee to give testimony
in state court],
® Buford v. The State. 158 Ga. App. 763 (1981), the court held that the defendant
was entitled to compulsory process and the "Touhy" regulations do not prevent the state courts of
Georgia from requiring that evidence be produced where the evidence was material to the
criminal defense.
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4
is unable to continue working because of his sustained injuries which resulted in his early
retirement. Under the circumstances, the requested testimonies coupled with the production of
documents are being sought to elicit specific information contained in Mr. Litter s personnel file
as opposed to general information about Agency policy.
Pursuant to the " No Disclosure7 Without Consent Rule" of the Privacy Act of 1974,
"No agency shall disclose any record which is contained in a system of records by any means of
communication to any person, or to another agency, except pursuant to a written request by, or
with the prior written consent of, the individual to whom the record pertains.8 The information
being sought through testimony and production of documents (including but not limited to, those
that relate to salary, benefits, job performance, evaluation and retirement benefits) clearly fall
within the "records" that are protected under the Privacy Act. There appears to be no distinction
made between the protection of information of current and former employees. The case law
covering the "No Disclosure Without Consent Rule"of the Privacy Act clearly supports a strict
interpretation of the rule.9
However, there are twelve exceptions to the "No Disclosure Without Consent Rule," two
of which are relevant in this instance: (1) the court order10 and (2) the Freedom of Information
Act (FOIA)11 disclosure exemptions. Regarding the court order exemption (pursuant to a court
of competent jurisdiction), as a general proposition, it appears that the essential point of this
exemption is that the Privacy Act cannot be used to block the normal course of a court
proceeding, including court-ordered discovery. The uncertainty and question revolves around the
meaning of a "court order." Without any assistance from the legislative history of the Privacy
Act, several courts have held that a subpoena routinely issued by a court clerk is not a court order
A "disclosure" can be by any means of communication-written, oral, electronic or
mechanical.
8 5 U.S.C. § 552a(b).
9 In Pilon v. United States Dep't of Justice. 73 F.3d 1111 (D.C. Cir 1996), the court
held that the Justice Department's transmission of a Privacy Act-protected record to a former
employee of the agency constituted a "disclosure" under the Privacy Act, even though the
recipient had come into contact with the record in the course of his duties while an employee.
f(Osboume v. United States Postal Serv.. No. 94-30353 at slip op. at 2-4 (N.D. Fla. May 18,
1995); Gowan v. United States Dep't of the Air Force. 148 F.3d 1182 (10th Cir. 1998); Ouinn v.
Stone. 978 F.2d 126 (3rd Cir. 1992)].
10 5 U.S.C.§552a(b)(l 1).
11 5 U.S.C. § 552a(b)(2).
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5
within the meaning of this exemption because it is not specifically approved by a judge.12 The
prevailing position is that Section 552a(b)(ll) provides for those cases in which, for compelling
reasons,13 the court specifically directs that a record be disclosed. The mere issuance in
discovery proceedings of a subpoena which is always subject to the power of the court to quash
or to limit, does not meet this standard. Other courts have held that a subpoena is a court order
where it is required to be approved by the judge under state law,14 while a few have held that a
subpoena should be considered a "court order."15
Notwithstanding the popularly held position that subpoenas are not court orders under
the Privacy Act, generally courts have consistently held that the Privacy Act does not create a
discovery privilege.16 Consequently, the Federal Rules of Civil Procedure (FRCP), specifically,
Rules 26(b)(1)17 and 45(b)'8 will dictate whether information under the Privacy Act is disclosed
based on "relevance" to the underlying action.
Pursuant to the FRCP and prevailing case law, the appropriate mechanism for challenging
a subpoena that seeks qualified "personnel information" is through the filing of a Motion to
Quash objecting on the ground that the Privacy Act prohibits disclosure.19
12 Doe v. DiGenova. 779 F.2d 74 (D.C. Cir. 1985): Bruce v. United States. 621 F.2d
914 (8th Cir. 1980) and Stiles v. Atlanta Gas Light Co.. 453 F. Supp 798 (N.D. Ga. 1978).
13 See Buford
14 Moore v. United States Postal Service. 609 F.Supp 681 (E.D. N.Y. 1985); and
Adams v. United States Lines. No. 80-0952, slip op. at 2 (E.D. La. Mar. 16, 1981).
15 Adams v. United States Lines. No. 80-0952, slip op. at 2-3 (E.D. La. March 16,
1981).
16 Ford Motor Company v. United States. 825 F.Supp v. 1081 (Court of International
Trade 1993); Laxalt v. McClatchv. F. 2d 885 (D.C. Cir. 1987); Weahkee v. Norton. 621 F.2d
1080, (10th Cir. 1980); and FLRA v. Department of the Navy. 963 F.2d. 124 (6th Cir. 1992).
17 Dictates the scope and limits of discovery based on whether the information is
"relevant."
18 Details the procedures for filing a subpoena.
19 Rule 45(c)(3) of the FRCP, states in part, that on timely motion, the court shall
quash a subpoena if, inter alia, the subpoena requires disclosure of a trade secret or other
confidential research
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6
In lieu of issuing a subpoena, Mr. Schwartz, attorney for the defendant could have
attempted to obtain the information under FOIA which is also one of the twelve exemptions to
the Privacy Act that is relevant to this matter. The point of this exemption is that the Privacy Act
never prohibits a disclosure that is required by FOIA. Therefore, if the Agency received a
request for information about an individual contained in the system of records that is not properly
withholdable under any FOIA exemption, under Section 552 of the Privacy Act, the Agency is
required to disclose the information to the requester. However, if the information falls within
protected information under the FOIA Exemption 6 which covers "personnel, medical and
similar files," no disclosure is required. To qualify under this exemption, information must be
identifiable to a specific individual. Once it has been established that information meets the
threshold requirement of Exemption 6, the focus of the inquiry turns to whether disclosure of the
records at issue "would constitute a clearly unwarranted invasion of personal privacy." This
requires a balancing of the public's right to disclosure against the individual's right to privacy.
The testimonial and documentary information being sought clearly qualifies under the
FOIA Exemption 6 since it is about a specific individual, Mr. Littel and falls squarely within the
"personnel information" category under FOIA Exemption 6. Regarding whether the disclosure
would constitute a clearly unwarranted invasion of privacy, courts have generally recognized the
sensitivity of information contained in personnel-related files and have accorded protection, to the
personal details of a federal employee's service.20 Therefore, if the information in question was
requested pursuant to FOIA, it would be exempt from disclosure without a written waiver from
Mr. Littel.
Notwithstanding the issues under the Privacy Act, the Agency is generally concerned
about the diversion of its staff from their official duties which is well founded in light of limited
resources. Mr. Lee in his capacity as Chief of the Superfund & Air Monitoring Section, Science
and Ecosystem Support Division is tasked with supervising twenty five employees. Mr. Prince in
his capacity as Director of Personnel for the Region, supervises a staff of over twenty employees.
Mr. Prince is responsible for the Human Resources Management Program for the Region. Based
on the many responsibilities of both Messrs. Lee and Prince, their official time is heavily
encumbered, and to divert their time to prepare for and to provide testimony in litigation to which
the United States is not a party would not possibly further any "official purpose." The effect of
providing Messrs. Lee and Prince to private litigants would constitute an improper diversion of
EPA resources for private purposes.
American Federation of Government Employees v. United States. 712 F.2d 931
(4th Cir. 1983), (employees' home address); Barwick v. Cisneros. 941 F. Supp. 1015 (D.Kan.
1996) (personal information such as home addresses and telephone numbers, social security
numbers, dates of birth, insurance and retirement information, reasons for leaving prior
employment, and performance evaluation); and Plain Dealer Publishing Co. v. United States
Dept. of Labor. 471 F. Supp 458 (D.C. 1979) (medical personnel and related documents of
employees filing claims under the Federal Employees compensation Act).
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7
Additionally, while the time for any one employee used to testify in private litigation may
not seem great in the abstract, the cumulative disruption to EPA's mission would be severe if
EPA employees had to testify in private litigation every time such testimony is demanded,
especially in lawsuits that involves a common occurrence such as a automobile accident.
Further, when official government business is the subject of a deposition, it is common for
Agency counsel to attend as well as an AUSA. Thus, several federal employees' time is utilized
for private litigation over which the federal agency has no interest.
After weighing the pertinent factors, I have concluded that the testimony sought pursuant
to the subpoena is clearly not in the interests of EPA. I recommend that the AUSA file a Motion
to Quash objecting to the subpoena on the grounds that the Agency is not subject to the state
issued subpoena because of sovereign immunity, and furthermore, the information falls within
the "personnel information"category which is protected by the Privacy Act. If you have any
questions or need additional information that would further assist you, please contact Marlene J.
Tucker at x29536.
Attachments
cc: Pat Stout (United States Attorney General's Office)
Karol Berrien (EPA)
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/ „ \
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
ATLANTA FEDERAL CENTER
61 FORSYTH STREET
ATLANTA, GEORGIA 30303-8960
2^
DEC 1 2001
4EAD
Wesley D. Tibbals, Esquire
Akemian, Senterfitt & Eidson, P.A.
Post Office Box 3273
Tampa, Florida 33601-3273
SUBJ: Subpoena for Production of Documents in the Matter of Lakeland Drum Service, Inc
Dear Mr. Tibbals:
This is in response to the Subpoena for Request for Production of Documents in the
private litigation referenced above. On behalf of the Tampa Electric Company, you served a
subpoena requesting the production of documents dated December 4, 2001, on the Custodian of
Records for Region 4. Specifically, you requested that EPA produce, by December 14,2001, all
documents in EPA's control regarding the Lakeland Drum Service, Inc. After careful
consideration, EPA hereby notifies you that your request is denied for the reasons discussed
below.
Pursuant to EPA regulations at 40 C.F.R Part 2, Subpart C, EPA employees are
prohibited from complying with subpoenas for documents or requests for testimony about official
matters, either voluntarily or in response to subpoenas, in any proceeding in which the United
States Government is not a party unless EPA finds that to do so is clearly in the interests of the
Agency. 40 CFR § 2.405. The purpose of the 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 or production of documents when clearly in the interests of EPA.
The concerns that § 2.401(c) address are important to the Agency because of the
potential number of private lawsuits in which EPA could be subpoenaed to produce documents if
the regulations are not properly applied. The cumulative effect of providing EPA resources to
respond to broad-based subpoenas for private litigants in extremely tight time frames, or requests
for testimony, when EPA is not a party would constitute improper diversion of EPA resources for
private purposes'. EPA resources are severely limited, and EPA cannot permit private litigants
Moore v. Armour Pharni. Co.. 927 F.2d 1194 (11th Cir. 1991)
Internet Address (URL) • http://www.epa.gov
Recycled/Recyclable . Printed with Vegetable Ofl Based Inks on Recycled Paper (Minimum 30% Postconsumer)
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2
might be requested. Private litigation which relates to EPA's activities is common, and private
litigants often seek documents and testimony from EPA nationwide.
In your subpoena dated December 4, 2001, you did not provide any reasons why
complying with this subpoena request would "clearly be in the interests of EPA" under Subpart C.
An important part of EPA's analysis is to review EPA's role in the underlying dispute
between the parties. In this case, Lakeland Drum Service, Inc. is suing the Tampa Electric
Company. EPA is not a party to this litigation. It is difficult to see how complying with this
subpoena request for documents is an appropriate use of EPA time and resources or can be
considered "clearly in the best interests" of EPA.
Therefore, after careful considerations of the factors indicated above, I have determined
that complying with this subpoena would not be "clearly in the interests of EPA."
Pursuant to that section, your subpoena will be treated as a request for documents under
the Freedom of Information Act arid 40 CFR Part 2, Subparts A and B. Based on your recent
telephone conversation with Lou Ann Gross of my staff, the documents will be provided to you
pursuant to the provisions of the FOIA. If you have any questions concerning this matter please
contact Lou Ann Gross at (404) 562-9642.
Sincerely,
Phyllis P. Harris
Regional Counsel and Director
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
ATLANTA FEDERAL CENTER
61 FORSYTH STREET
ATLANTA, GEORGIA 30303-8960
OCT 1 8 2001
4EAD
David P. Bevon
Ness, Motley, Loadholt,
Richardson & Poole
28 Bridgeside Boulevard
Post Office Box 1792
Mt. Pleasant, South Carolina 29565
SUB J: Subpoena for Production of Documents in the Matter of:
Lead Poisoning Litigation v. Exide. et al.
Dear Mr. Bevon:
This is in response to the Subpoena for Request for Production of Documents in the
private litigation referenced above. On behalf of the Lead Poisoning Litigation, you served a
subpoena requesting the production of documents and a letter, dated September 27,2001, on
Doug Haire, Regional Records Manager of the Environmental Protection Agency (EPA),
Region 4. Specifically, you requested that EPA produce, by October 24,2001, all documents in
EPA's control regarding the Greer Exide Battery Plant. After careful consideration, EPA hereby
notifies you that your request is denied for the reasons discussed below.
Pursuant to EPA regulations at 40 C.F.R Part 2, Subpart G, EPA employees are
prohibited from complying with subpoenas for documents or requests for testimony about official
matters, either voluntarily or in response to subpoenas, in any proceeding in which the United
States Government is not a party unless EPA finds that to do so is clearly in the interests of the
Agency. 40 CFR § 2.405. The purpose of the 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 or production of documents when clearly in the interests of EPA.
40 C.F.R. § 2.401(c).
The concerns that § 2.402(c) address are important to the Agency because of the
potential number of private lawsuits in which EPA could be subpoenaed to produce documents if
the regulations are not properly applied. The cumulative effect of providing EPA resources to
/ £5 *
\WJ
Internet Address (URL) • http^/www.epagov
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2
respond to broad-based subpoenas for private litigants in extremely tight time frames, or requests
for testimony, when EPA is not a party would constitute improper diversion of EPA resources for
private purposes1. EPA resources are severely limited, and EPA cannot permit private litigants
to use the duty time of federal employees for the numerous proceedings in which documents
might be requested. Private litigation which relates to EPA's activities is common, and private
litigants often seek documents and testimony from EPA nationwide.
In your cover letter dated September 27,2001, you did not provide any reasons why
complying with this subpoena request would "clearly be in the interests of EPA" under Subpart C.
An important part of EPA's analysis is to review EPA's role.in,the underlying dispute
between the parties. In this case, Lead Poisoning Litigation is suing Exide Battery. EPA is not a
party to this litigation. It is difficult to see how complying with this subpoena request for
documents is an appropriate use of EPA time and resources or can be considered "clearly in the
best interest" of EPA.
Therefore, after careful considerations of the factors indicated above, I have determined
that complying with this subpoena would not be "clearly in the interests of EPA."
In accordance with the; regulations of 40 C.F.R. § 2.405,1 have consulted with the'
Region 4 Air Division Director regarding this denial of your subpoena. Pursuant to that section,
your subpoena will be treated as a request for documents under the Freedom of Information Act
and 40 CFR Part 2 Subparts A and B. Pursuant to your recent telephone conversation with
Lou Ann Gross of my staff, the documents will be made available for your review and duplication
on or before October 24, 2001. If you have any questions concerning this matter, please contact
Lynda Crum at (404) 562-9524 or Lou Ann Gross at (404) 562-9642.
Sincerely,
Phyllis P. Harris
Regional Counsel and Director
Environmental Accountability Division
Moore v. Armour Pharm. Co.. 927 F.2d 1194 (11th Cir. 1991)
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2'
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
ATLANTA FEDERAL CENTER
61 FORSYTH STREET
ATLANTA. GEORGIA 30303-9960
4EAD
4L urn
Justin S. Scott, Esq.
Smith, Gambrell & Russell LLP
Promenade II, Suite 3100 J
1230 Peachtree Street, NE
Atlanta, Georgia 30303
Re: Subpoena for Production of Documents in the Matter of:
Foster Wheeler Environmental Corp. v Rov F. Weston. Inc.
US District Court of New Jersey; Civil Action No. 00-3778
ABC Cleaners Site, Camp Lejeune, North Carolina
Dear Mr. Scott:
This is in response to the Subpoena for Request for Production of Documents in the
private litigation referenced above. On behalf of the Foster Wheeler Environmental Corporation
(Foster Wheeler) you served a subpoena requesting the production of documents and a letter,
dated July 2, 2001, on Luis Flores of Environmental Protection Agency (EPA) Region 4.
Specifically, you requested that EPA produce, by July 16, 2001, a large number of documents
concerning the ABC Cleaners Site in Camp Lejeune, North Carolina. After careful "
consideration, EPA hereby notifies you that your request is denied for the reasons discussed
below.
Pursuant to EPA regulations at 40 C.F.R Part 2, Subpart C, EPA employees are
prohibited from complying with subpoenas for documents or requests for testimony about official
matters, either voluntarily or in response to subpoenas, in any proceeding in which the United
States Government is not a party unless EPA finds that to do so is clearly in the interests of the
Agency. 40 CFR § 2.405. The purpose of the 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 or production of documents when clearly in the interests of EPA.
40 C.F.R. § 2.401(c).
internet Address (URL) • httDi/.'www.aDa.aov
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The concerns that § 2.402(c) address are important to the Agency because of the
potential number of private lawsuits in which EPA could be subpoenaed to produce documents if
the regulations are not properly applied. The cumulative effect of providing EPA resources to
respond to broad-based subpoenas for private litigants in extremely tight time frames, or requests
for testimony, when EPA is not a party would constitute improper diversion of EPA resources for
private purposes'. EPA resources are severely limited, and EPA cannot permit private litigants
to use the duty time of federal employees for the numerous proceedings in which documents
might be requested. Private litigation which relates to EPA's activities is common, and private
litigants often seek documents and testimony from EPA nationwide.
In your cover letter tiated July 2, 2001, you did not provide any reasons why complying
with this subpoena request would "clearly be in the interests of EPA" under Subpart C. Further,
when asked by one of my staff attorneys, a Ms. Agnes Antonian of Connell Foley, who
represents Foster Wheeler in this litigation, was unable to provide a rationale as to how
complying with this subpoena is "clearly in the interests of EPA" for purposes of 40 CFR
Subpart 2.4.
An important part of EPA's analysis is to review EPA's role in the underlying dispute
between the parties. In this case, Foster Wheeler is suing Roy F. Weston, Inc. (Weston), EPA's
general contractor on the ABC Cleaner's site, for breach of a sub-contract to which EPA is not a
party. Foster Wheeler's claim is apparently based on a statement by Weston in one of its
technical documents that Foster Wheeler alleges means that the groundwater would not have to
be treated for metals as part of the proposed National Pollution Discharge Elimination System
(NPDES) permit for the site. However the eventual NPDES permit, which was issued before
Foster Wheeler began design and construction of the treatment facility, did require that
groundwater be treated for nickel contamination. For its part, Weston argues that the statement
is taken out of context and that, even if true, it was pre-empted by the specific NPDES
requirements which specifically required treatment for nickel. Either way, it is not an act or
omission by EPA that is the cause of the underlying dispute, thus since the Remedial
Investigation/Feasibility Study and NPDES permit speak for themselves on the need to treat the
groundwater for nickel contamination, the controversy turns on communications from Weston to
Foster Wheeler and vice-versa. Since there is no privity of contract between EPA and Foster
Wheeler and since the dispute is not based on EPA acts or omissions it is hard to see how
supplying the documents requested in the subpoena would be "clearly in the interests"of EPA.
Further, it appears that your client, Foster Wheeler, already has many of the documents
requested in your subpoena. According to attorneys for Weston, they have already provided
Foster Wheeler with a voluminous discovery request that was very similar to the subpoena served
on EPA. In addition, Foster Wheeler should clearly have many of the documents requested in
the subpoena by virtue of its role as a sub-contractor to Weston. For example, you requested "all
Moore v. Armour Pharm. Co.. 927 F.2d 1194 (1 llh Cir. 1991)
2
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documents related to the subcontract". Certainly Foster Wheeler, as a party to the subcontract,
should already be in possession of at least some documents "related to the subcontract".
According to Ms. Antonian of Connell Foley LLP, a FOIA request was made by Foster
Wheeler on the ABC Site in anticipation of this litigation but Foster Wheeler was "not satisfied"
with the response. Our FOLA. office indicates that on December 21, 2000, EPA provided 1,252
pages of documents to an attorney representing Foster Wheeler, virtually all of which are also
included in the current subpoena for documents by Foster Wheeler. The FOLA office has no
record of any administrative appeals of EPA's FOIA response on the ABC Cleaners Site. In a
conversation with one of my staff attorneys, Ms. Antonian admitted that she was not familiar
with the earlier FOIA request, that she had not seen either the request or the response and did not
know if it was similar to the SHbpoena request, nor did she know if Foster Wheeler pursued an
administrative appeal of the FOIA request. Given the above, it is difficult to see how complying
with this broad subpoena request for documents, many of which Foster Wheeler already has, is
an appropriate use of EPA time and resources or can be considered "clearly in the best interest"
of EPA.
After careful considerations of the factors indicated above, I have determined that
complying with this subpoena would not be "clearly in the interests of EPA." Further it appears
that much of the information being sought is already in the possession of Foster Wheeler or is
available through other means such as a FOIA request or file review.
In accordance with the regulations of 40 C.F.R. § 2.405,1 have consulted with the Region
4 Waste Division Director regarding this denial of your subpoena. Pursuant to that section, your
subpoena will be treated as a request for documents under the Freedom of Information Act and
40 CFR Part 2 Subparts A and B. If you have any questions concerning this matter, please
contact Leif Palmer of my staff at telephone number (404) 562-9542.
Sincerely,
Phyllis P. Harris
Regional Counsel and Director Environmental
Accountability Division
-»
J
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
ATLANTA FEDERAL CENTER
61 FORSYTH STREET
ATLANTA, GEORGIA 30303-8960
ft l?»
MEMORANDUM
SUBJECT
FROM:
TO: Phyllis P. Harris, Regional Counsel and Director
Environmental Accountability Division
The purpose of this memorandum is to provide a recommendation as to "whether it is
clearly in the interests of EPA'" to comply with the Subpoena for Request for Production of
Documents in the private litigation referenced above. A subpoena and letter, dated July 2,
2001, from Justin S. Scott of Smith, Gambrell & Russell, LLP, was served on Luis Flores of EPA
Region 4. The subpoena is on behalf of Foster Wheeler Environmental Corporation (Foster
Wheeler), the plaintiff in the above referenced litigation. Foster Wheeler is a sub-contractor for
defendant Roy F. Weston, Inc. (Weston) who is the environmental remediation general
contractor for EPA on the ABC Cleaners Site.
Analysis. The issue for the Agency to resolve in this case is whether it is "clearly in the
best interest of EPA" to involve itself in the underlying dispute of this lawsuit. Foster Wheeler
initiated this lawsuit against Roy F. Weston for alleged breach of their sub-contract and for
Weston's alleged failure to provide Foster Wheeler access to the site. EPA is not in privity of
contract with Foster Wheeler and is thus not a party to this lawsuit. The breach of subcontract
claim is based on Foster Wheeler's allegations that communications from Weston amounted to
differing site conditions than those represented in the Remedial Investigation/Feasibility Study
(RI/FS).
Pursuant to 40 C.F.R. § 2.405, subpoenas duces tecum for documents are treated the same
as subpoenas for testimony under § 2.404, compliance with the request is conditional upon a
finding that the request would clearly be in the interests of EPA. While this subpoena is not
styled as subpoena duces tecum, it is a subpoena for production of documents and the regulations
to not provide for another alternative besides analyzing the request under § 2.404.
Subpoena for Production of Documents in the Matter of:
Foster Wheeler Environmental Corp. v Rov F. Weston
US District Court of New Jersey; Civil Action No. 00-3778
ABC Cleaners Site, Camp Lejeune, North Carolina
Lei f Palmer
Office of Air Tinwsand General Law
Environmental Accountability Division
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2
For the reasons explained below, it is not clearly in EPA's best interest, and contrary to
EPA policy, for the Agency to become involved in this dispute and respond to this subpoena.
First, because of limited resources, EPA has chosen to use extensive contract resources to
perform day to day environmental remediation and removal activities at contaminated sites. This
frees up Agency personnel for oversight and emergency response activities. In order to
accomplish this, EPA has adopted the Federal Acquisition Regulations2 (the FAR) which
establish a comprehensive system of rules and procedures for EPA offices, contractors and sub-
contractors to follow. Compliance with the FAR ensures that EPA contract dollars are spent in a
consistent manner and only for allowable, reasonable and allocable items and services. A crucial
part of that system is privity of contract. The FAR establishes a strict hierarchy, EPA selects a
general contractor through its procurement methods, that general contractor is in turn responsible
for overseeing and ensuring that its chosen sub-contractors perform. EPA, since it is not in
privity of contract, does not interact with sub-contractors, except in the context of exigent
circumstances. 48 CFR § 9.104-4(b). Further, since contractual relationships should be 'arms-
length' in nature, EPA does not second guess the business judgments of its contractors as they
deal with there sub-contractors. See 48 CFR § 9.104-4(a). To do otherwise would burden EPA
staff with a staggering amount of day to day business relations between EPA general contractors
and their sub-contractors in contravention of the principles set forth in 40 CFR § 2.401(c).
The Underlying Dispute. At the ABC Cleaners Site, EPA selected Weston to be its
general contractor. Weston in turn hired Foster Wheeler to perform sub-contracting work
relating to the design, construction and operation of a 'pump and treat' facility to clean up the
contaminated groundwater at the site. The water treatment system developed operational
problems and Foster Wheeler eventually quit the site and sued Weston claiming breach of sub-
contract. Foster Wheeler alleges that a statement by Weston in one of its technical documents
indicated that the groundwater would not have to be treated for metals as part of the proposed
National Pollution Discharge Elimination System (NPDES) permit for the site. However the
eventual NPDES permit, which was issued before Foster Wheeler began design and construction
of the treatment facility, did require that groundwater be treated for nickel contamination.
Its important to note for purposes of analysis under 40 CFR Part 2.4 that Foster Wheeler
alleges that it was a statement by Weston, not EPA, that has given rise to the claim of differing
site conditions. For its. part, Weston argues that the statement is taken out of context and that,
even if true, it was pre-empted by the specific NPDES requirements which specifically required
the treatment of groundwater for nickel. Either way, it is not an act or omission by EPA that is
the cause of the underlying dispute. Therefore, it is not "clearly in the best interests" of EPA to
comply with the subpoena. Especially since Foster Wheeler already has most if not all of the
information the subpoena requests through other sources. I concur, therefore, the CERCLA
Program recommendation that this subpoena be treated as a FOIA request under 40 CFR §§
2.100 to 2.121.
See 48 CFR Part I to 51.
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3
Scope of the request. In addition to reasons outlined above, the subpoena request by
Foster Wheeler is overly broad, burdensome, and asks for documents that Foster Wheeler has
already obtained as a part of its sub-contracting duties, through an earlier FOIA request/file
review and through discovery efforts from-Weston, or from all three sources. The subpoena
request asks for:
1) All documents that relate to the Contract from 1996 through the present.
2) All documents that relate to the requirement for a discharge permit for the groundwater
treatment system at the ABC site.
3) All documents that relate to groundwater remediation work performed at the ABC site
from 1996 including... all correspondence, internal, external, with third parties, etc.
4) All documents that relate to Weston's and EPA's efforts to retain a contractor to
design and install a groundwater treatment system at the ABC site, etc., etc.
5) All documents that relate to the FWENC/Weston subcontract, P.O. #81158
6) All documents that relate to your correspondence with Weston or any other entity
egarding work to be performed under the Contract, from 1996 to the present.
7) All internal documents and correspondence regarding the Contract, from 1996 to the
(resent.
8) All internal documents and correspondence regarding the FWENC/Weston
subcontract, P.O. #81158e, from 1996 to the present.
9) All documents relating to the RI Report for the ABC Site, including but not limited to
field data, field notes, analytical reports, correspondence and drafts.
10) All documents relating to the FS Report for the ABC Site, including but not limited
to field data, field notes, analytical reports, correspondence and drafts.
11) All documents relating to the preparation of the ROD for the ABC Site.
12) All documents relating to the performance of the groundwater remediation system at
the ABC site, including but not limited to internal EPA correspondence.
13) All documents.(including internal correspondence) ...relating to Weston or EPA's
efforts to obtain a NPDES permit modification from North Carolina.
Many documents responsive to this request are already in Foster Wheeler's possession by
virtue of its sub-contractor relationship with Weston. I have spoken with Raymond DeLuca, an
associate attorney with-Pepper Hamilton, LLP, who represents Weston in this litigation. Mr.
DeLuca and I compared the above subpoena request with the other discovery requests already
made by Foster Wheeler. Mr. DeLuca informed me that this subpoena for documents is similar to
requests that Foster Wheeler's lawyers have already made to Weston and that Mr. DeLuca's firm
has complied with those requests. Mr. DeLuca stated that Foster Wheeler appeared to be
satisfied with the soope of the discovery production by Weston and that Foster Wheeler has
neither complained of the adequacy of the records produced or filed a motion to compel
discovery.
On May 24, 2000, on behalf of Foster Wheeler, Kevin J. Maynard, of the Washington,
D.C. law firm of Wiley, Rein & Fielding, submitted aTOLA request (FOIA 4-RIN 00952-00) to
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4
EPA Region 4 seeking documents relating to EPA's Contract No. 68-W9-0057 (the ABC
Cleaners site) with Weston; all records relating to the investigation and or operation of the
groundwater remediation system at the ABC Cleaners site, including e:mails, correspondence,
contract work orders, draft documents, etc.; EPA Contract No. 68-W7-0026 with Weston (also
pertaining to the ABC Cleaners site); and all records under the latter contract relating to the
groundwater remediation system at the ABC Cleaners site. In response, EPA provided 1,252
pages of responsive information to Mr. Maynard on December 21,2000. Notably, Foster
Wheeler did not appeal the response by EPA. However, in its current very broad subpoena
request Foster Wheeler has again asked for all of the documents it received from its FOLA
request.
I also spoke with a Ms. Agnes Antoman, of the law firm of Connell Foley, attorneys for
Foster Wheeler. Ms. Antonian informed me Foster Wheeler position was that EPA has to
comply with the subpoena request and that Foster Wheeler was ready to pursue sanctions against
EPA if necessary. Ms. Antonian explained that Foster Wheeler was "not satisfied" with its
earlier response to a FOIA request from EPA and was thus decided to subpoena all documents -
that could be related to the case. I asked Ms. Antonian if she had seen the earlier FOIA request,
or its response, or if she knew whether Foster Wheeler had appealed the earlier FOIA response.
Ms. Antonian admitted that she had not seen either the earlier FOIA request or response and did
not know whether it was similar to the subpoena request for documents. Further she also did not
know whether EPA's FOIA response had been appealed. However Ms. Antonian did state that
the discovery period for Foster Wheeler was closing on August 31,2001, and that they intended
to aggressively pursue this subpoena for the production of documents.3 I offered to facilitate a
file review and expedited FOIA response if she would withdraw the subpoena request. Ms.
Antonian refused the offer.
Foster Wheeler was originally given until August 31, 2001 to conduct discovery in this
matter. Foster Wheeler waited until there was only a few weeks left in its discovery period to
initiate a subpoena for all documents conceivably related to the remediation work at the site,
including again asking for 1,252 pages of information they had already received via FOIA. There
was no reason offered by Foster Wheeler as to why they did not pursue a -FOIA appeal or why the
earlier FOIA response was inadequate. Importantly the subpoena and cover letter made no effort
to even argue how complying with this subpoena could be 'clearly in the interesf'of EPA under
40 CFR Part 2.4.
Recommendation. After carefully reviewing this request, I recommend that the Region
refuse to comply with the subpoena for records in this civil matter for the reasons discussed
above. To arrive at this determination, I weighed several factors including the availability of
equivalent information through alternative sources and resource constraints and the fact the core
issue of the underlying dispute involves communications between Weston and Foster Wheeler
J Mr. DeLuca informed me that Foster Wheeler had violated a court schedule to provide an expert report by a
specific date, as a result Weston will consent to giving Foster Wheeler an additional month, until September 30,
2001, to complete discovery, not August 31, 2001, as Ms. Antonian stated to me on the telephone on July 9,2001.
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5
and not EPA. Given that Foster Wheeler has already completed a file review under a FOIA
request, which it did not appeal, and received many of the documents through discovery and its
role as a subcontractor, and, finally, since the underlying issue of this dispute is based on
statements made between the parties and not EPA, I do not see any rationale for concluding that
complying with this subpoena would further any "official purpose" pursuant to 40 C.F.R. §
2.401(c)4 or be "clearly in the best interest" of the United States under 40 CFR § 2.404.
The scenario at hand involves a subpoena for the production of documents, any
determination made at this juncture will be considered final agency decision.5 Thus, a person
"adversely affected or aggrieved" by a Subpart C determination may seek its collateral review in
an appropriate circiut court of appeals. If such determinations are without a rational basis or an
adequate supporting administrative record, they are subject to reversal.
After weighing all the pertinent factors, I have determined that the testimony would not
be in the interests of EPA and that the request should be denied. If you have any questions or
need additional information that would further assist you, please contact Leif Palmer at x29542.
Attachments
J The purpose of the 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 or production of documents when clearly in the interests of EPA."
1 Any Agency determination under Subpart C is " final agency action" under the
Administrative Procedure Act (APA). 5 U.S.C. §§ 702, 704.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
#' JSi t REG,0N 4
I WP/ ? ATLANTA FEDERAL CENTER
\ 61 FORSYTH STREET
% ATLANTA. GEORGIA 30303-8960
JUL 1 2 200?
MEMORANDUM
SUBJECT: Subpoena for Production of Documents in the Matter of
Foster Wheeler Environmental Corp. v Rov F. Weston
US District Court of New Jersey; Civil Action No. 00-3778
ABC Cleaners Site, North Carolina
FROM: Richard D. Green, Director
Waste Management Division
TO: Phyllis P. Harris, Regional Counsel and Director
Environmental Accountability Division
The purpose of this memorandum is to provide the CERCLA Program's determination
as to "whether it is clearly in the interests of EPA" to comply with the Subpoena for Request
for Production of Documents in the private litigation referenced above. A subpoena and letter,
dated July 2, 2001, from Justin S. Scott of Smith, Gambrell & Russell, LLP, was served on
Luis Flores of EPA Region 4. The subpoena is on behalf of Foster Wheeler Environmental
Corporation (Foster Wheeler), the plaintiff in the above referenced litigation. Foster Wheeler
is a sub-contractor for defendant Roy F. Weston, Inc. (Weston) who is the environmental
remediation general contractor for EPA on the ABC Cleaners Site.
As I understand it, we must decide whether it is "clearly in the best interest of EPA" to
involve itself in the underlying dispute of this lawsuit. Foster Wheeler initiated this lawsuit
against Roy F. Weston for alleged breach of their subcontract and for Weston's alleged failure
to provide Foster Wheeler access to the Site. EPA is not a party to the contract with Foster
Wheeler and is thus not a party to this lawsuit. The breach of subcontract claim is based on
Foster Wheeler's allegations that communications from Weston amounted to differing Site
conditions than those represented in the Remedial Investigation/Feasibility Study (RI/FS).
For the reasons explained below, the Waste Management Division concludes that it is
not clearly in EPA's best interest, and contrary to EPA policy, for the Agency to become
involved in this dispute and respond to this subpoena for production of documents.
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2
First, because of limited resources, EPA has chosen to use extensive contract resources
to perform day to day environmental remediation and removal activities at contaminated sites.
This frees up Agency personnel for oversight and emergency response activities. In order to
accomplish this, EPA has adopted the Federal Acquisition Regulations (the FAR) which
establish a system of rules and procedures for EPA offices, contractors and subcontractors to
follow. Compliance with the FAR ensures that EPA contract dollars are spent in a consistent
manner and only for allowable, reasonable and allocable items and services. Consistent with
the FAR, in this case EPA has selected a general contractor through its procurement methods
and that general contractor is in turn responsible for overseeing and ensuring that its chosen
subcontractors perform. EPA does not normally interact with subcontractors and does not
provide any direction to subcontractors. Further, since contractual relationships should be
'arms-length* in nature, EPA does not second guess the business judgments of its contractors
as they deal with their subcontractors.
At the ABC Cleaners Site, EPA selected Weston to be its general contractor. Weston
in turn hired Foster Wheeler to perform subcontracting work relating to the design,
construction and operation of a 'pump and treat' facility to clean up the contaminated
groundwater at the Site. The water treatment system developed operational problems and
Foster Wheeler eventually quit the site and sued Weston claiming breach of subcontract.
Foster Wheeler alleges that a statement by Weston in one of its technical documents indicated
that the groundwater would not have to be treated for metals as part of a proposed National
Pollution Discharge Elimination System (NPDES) permit for the Site. However the eventual
NPDES permit, which was issued before Foster Wheeler began design and construction of the
treatment facility, did require that groundwater be treated for nickel contamination, which also
resulted in an apparent need for iron treatment.
Its important to note that Foster Wheeler alleges that it was a statement by Weston, not
EPA, that has given rise to the claim of differing site conditions. For its part, Weston argues
that the statement is taken out of context and that, even if true, it was pre-empted by the
specific NPDES requirements which specifically required the treatment of groundwater for
nickel. Under either parties version of the facts, it is not an act or omission by EPA that
caused the underlying dispute. Therefore, it is not "clearly in the best interests" of EPA to
comply with the subpoena. Especially since Foster Wheeler already has most if not all of the
information the subpoena requests through other sources. I recommend that this subpoena be
treated as a FOIA request under 40 CFR §§ 2.100 to 2.121
-------
3
In addition to reasons outlined above, the subpoena request by Foster Wheeler is overly
broad, burdensome, and asks for documents that Foster Wheeler has already obtained as a part
of its subcontracting duties, through an earlier FOIA request/file review and through discovery
efforts from Weston, or from all three sources. Besides acquiring most of the requested
documents through its role as a subcontractor, it is my understanding that Foster Wheeler
conducted a file review of the entire Site file in February of 2001 where it requested and
received copies of documents which Foster Wheeler lawyer's specifically requested. To my
knowledge Foster Wheeler did not complain about the scope of EPA's response to its FOIA
request nor did they file an administrative appeal of the FOIA response. Finally, I understand
from Leif Palmer of EAD, that Foster Wheeler requested, and received from Weston, a
document production request very similar to those documents requested by Foster Wheeler in
the subpoena at issue.
After carefully reviewing this request, the Waste Management Division concludes th?t
the Region should refuse to comply with the subpoena for records in this civil matter for the
reasons discussed above. To arrive at this determination, we considered several factors
including the availability of equivalent information through alternative sources and resource
constraints and the fact the core issue of the underlying dispute involves communications
between Weston and Foster Wheeler and not EPA. Given that Foster Wheeler has already
completed a file review under a FOIA request, which it did not appeal, and received many of
the documents through discovery and its role as a subcontractor, and, finally, since the
underlying issue of this dispute is based on statements made between the parties and not EPA,
I do not see any rationale for concluding that complying with this subpoena would further any
"official purpose" pursuant to 40 C.F.R. § 2.401(c) or be "clearly in the best interest" of EPA.
If you have any questions or need additional information that would further assist you,
please contact Philip Vorsatz at x28789.
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irffcO _ _
^ \ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I % REGION 4
1 vWv ? ATLANTA FEDERAL CENTER
61 FORSYTH STREET
\ ncfit-0 ATLANTA, GEORGIA 30303-8960
PRO**-
4EAD
January 11,2001
A
VIA FACSIMILE TRANSMISSION AND
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
Ethan R. Ware, Esquire
NcNair Law Firm
P.O. Box 11390
Columbia, South Carolina 29201
Re: Determination pursuant to 40 C.F.R. Part 2 Subpart C regarding your subpoena
duces tecum of David S. Engle, EPA Associate Regional Counsel.
Dear Mr. Ware:
A subpoena duces tecum, dated December 7, 2000, from the United States District Court,
District of South Carolina, in connection with its case number 4:00-3683-12, was served on U.S.
Environmental Protection Agency (EPA) employee, David S. Engle, EPA Associate Regional
Counsel, Environmental Accountability Division. The subpoena, which was issued at your
request on behalf of your client, the plaintiff in the underlying civil action, purports to require Mr.
Engle to appear at an unidentified location at "USEPA Region IV 61 Forsyth Street, Atlanta,
Georgia 30303-8960 [5/c]" on "January 11 and 12, 2000 [sic], 10:00am" to produce and permit
copying of "Any and [sjc] documents and information with respect to the Old Manning School
Superfund Site."
EPA regulations at 40 C.F.R. Part 2, Subpart C, prohibit EPA employees from providing
testimony or producing documents in any proceeding to which the United States is not a party
concerning information or documents regarding official matters 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 Sections 2.403 through 2.406 of 40
C.F.R. 40 C.F.R. Section 2.402(b). The purpose of these regulations as expressly set forth at 40
C.F.R. Section 2.401(c) is:
.. to ensure that employees' official time is used only for official purposes, to
maintain the impartiality of EPA among private litigants [in connection with
disputes between themselves], to ensure that public funds are not used for private
purposes and to establish procedures for approving testimony or production of
documents when clearly in the interests of EPA."
Internet Address (URL) • http^/www.ep&gov
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Page 2
I am the designee of the General Counsel for determining whether subpoenaed testimony
and document production by employees in EPA Region 4 "is clearly in the interest of EPA." In
accordance with 40 C.F.R. Section 2.404,1 have consulted with the appropriate EPA Region 4
staff office directors regarding this matter.
The subpoena that was served on Mr. Engle was issued in connection with a case styled
Palmetto Properties, Inc. v. Daley-Herring Company, Inc.; et al. that your client filed against the
defendants named therein. The effect of making Mr. Engle available as "commanded" by your
subpoena would constitute an improper diversion of EPA resources for litigation in which EPA is
not a party. EPA resources are severely limited, and we cannot permit private litigants to use the
duty time of federal employees for legal proceedings to which the United States is not a party
unless the testimony and/or production of documents "is clearly in the interests of EPA."
These concerns are extremely important to us because most EPA studies, inspections,
regulatory actions and similar activities deal with matters which may, and frequently do, give rise
to private litigation, that is, litigation to which EPA is not a party. Even though providing an
employee for a few hours, or as in the case of your subpoena for up to two full calendar days,
might not significantly impede our mission, the cumulative effect of this type of interruption to
our employees' regular work is very serious. This policy consideration is the reason for the "clear
interests of EPA" standard that is required for approval of employees' testimony and production
of documents pursuant to subpoenas issued in matters to which the Government is not a party.
You were asked to articulate in writing any factors known to you upon which I might base
a determination that honoring your subpoena "is clearly in the interest of EPA." You responded
by letter dated December 19, 2000, first by denying that it is "the responsibility of the party
seeking the documents to provide further explanations to the EPA." You then, however, went on
to offer the following statement as a possible explanation of why compliance might be clearly in
the interests of EPA:
"It seems clear it is within all our best interest, however, for EPA to
comply with this request, because it will ensure that those responsible for the
contamination found at the Old Manning School Superfund Site (the Site) are
diligently prosecuted and required to pay for the Site cleanup . Palmetto
Properties, Inc. (Palmetto) filed a lawsuit earlier this month against persons it
believes are responsible for the contamination found at the Site, and the documents
in your possession are important to our claims against them. We understand EPA
conducted an investigation into potentially responsible parties (PRPs) but elected
not to prosecute anyone. Instead, EPA issued a unilateral order to Palmetto, an
innocent landowner, to cleanup the Site. By reviewing the requested documents,
Palmetto hopes to ensure all PRPs pay their fair share of the response costs."
I have considered your argument in light of the other facts and circumstances of this case.
I find no good reason for determining that compliance with this subpoena "is clearly in the interest
of EPA." As a result of this determination, the following EPA regulation becomes relevant:
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Page 3
If the General Counsel or his designee denies approval to comply with the
subpoena, or if he has not acted by the return date, the employee must appear at
the stated time and place ..produce a copy of these regulations and respectfully
refuse to provide any testimony
40 C.F.R. §2.404(b), incorporated by reference into 40 CFR Section 2.405. Accordingly, Mr.
Engle will appear in the lobby of the EPA Region 4 office at 61 Forsyth Street, as designated by
your subpoena, at 10:00 a.m., Thursday, January 11, 2001, (which we assume to be the actual
date you intended for compliance in contrast to the actual date you stated, January 11,2000), and
"respectfully refuse to produce the subpoenaed materials." 40 CFR Section 2.405. In addition,
and as a result of this determination, Section 2.405 further requires that:
.... where a subpoena duces tecum is essentially a written request for documents,
the requested documents will be provided or denied in accordance with subparts A
and B of this part where approval to respond to the subpoena has not been
granted.
That is, of course, the situation in this case.
Accordingly, I note for the record that your associate, Marshall Taylor, on behalf or your
client, Palmetto Properties, Inc. and by e-mail dated May 4, 2000, submitted a request to EPA
pursuant to the Freedom of Information Act (FOIA), for which subparts A and B noted above are
EPA's implementing regulations. That request is for substantially the same documents as the
subpoena now before me. Specifically, that FOIA request sought "All files regarding the Old
Manning School Superfund Site located near Dillon, South Carolina." By letter dated May 30,
2000, a copy of which you enclosed with your letter of December 19, 2000, referenced above,
EPA advised Mr. Taylor:
....Pursuant to Title 40 CFR, Part 2, Section 2.12(c) "Prepayment or
Assurance of Payment," it will be necessary for you to prepay the costs associated
with your [FOIA] request. When you have made a decision on how to pursue
your request a prepayment bill will be sent to you. Processing of your request will
begin when prepayment is received by this office....
Please contact me at your earliest convenience to advise me how you wish
to proceed with your request....
Although Mr. Taylor subsequently talked by phone with two of EPA Region 4's FOIA
Officers, he never agreed to prepay EPA's costs associated with this FOIA request, nor have any
of these costs been prepaid as our letter makes clear must be done before the request will be
processed. As soon as this matter of prepayment of costs is fully addressed, all the documents
you have sought will be made available to you by our FOIA personnel in accordance with our
FOIA procedures. That, of course, does not include Agency records that are exempt from
disclosure under FOIA, such as attorney-client communications, attorney work product, and
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Page 4
predecisional communications and drafts entitled to protection under the deliberative process
privilege.
If you have any questions concerning this matter, please contact David Engle at (404)562-
9531.
Sincerely yours,
Regional Counsel and Director
Environmental Accountability Division
cc: Keith Lindler (via fax only)
J. B. Richardson, Jr., Esquire (via U.S. mail only)
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y*oar%
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
ATLANTA FEDERAL CENTER
61 FORSYTH STREET
ATLANTA, GEORGIA 30303-8960
9%
JUN o 9 1999
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Ms. Helene Fisher, Esquire
Rivkin Radler & Kremer
EAB Plaza
Uniondale, New York 11556-0111
SUB J: Subpoena for Testimony and Production of Documents Served on Henry Hudson
Sterling Winthrop, Inc., et al. v. Royal Indemnity Insurance Company, et al.
Dear Ms. Fisher:
A subpoena, dated April 15, 1999, issued by the Superior Court of Fulton County,
Georgia, was served on an Environmental Protection Agency (EPA or the Agency) employee,
Henry T. Hudson. The subpoena purports to require Mr. Hudson to appear in Atlanta, Georgia
on June 18, 1999, to be examined on deposition by the defendant in the above-referenced matter
and to produce relevant documents.
EPA regulations at 40 C.F.R. Part 2, Subpart C govern compliance with such subpoenas
served on employees in a civil legal proceeding where the United States is not a party. This
subpart sets forth the procedures to be followed when an EPA employee is subpoenaed to provide
testimony about information acquired in the course of performing official duties. The regulations
also apply to a subpoena duces tecum for any document in the possession of EPA.
The purpose of the regulations is:
"... to ensure that employee's 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 or production of
documents when clearly in the interest of EPA." [40 C.F.R. §2.401(c)]
These concerns are extremely important to EPA because most of the Agency's studies,
inspections, regulatory actions, and similar activities deal with matters which may, and frequently
do, give rise to private litigation. Even though providing a witness for a few hours in one case
Internet Address (URL) • http://www.epa.gov
RecyclwVRacycltblB • Printed wRh Vegetable Oil Based Inks on Recycled Paper (Minimum 25% Postconsumer)
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2
might not significantly impede our mission, the cumulative effect of such interruptions would be
very serious. Furthermore, providing official time for employees to testify may be perceived as a
failure by EPA to maintain impartiality among private litigants. These concerns provide the basis
for our "clear interests of EPA" standard for approving compliance with such subpoenas.
Therefore, under our regulations, employees may testify in civil cases where the United
States is not a party only when the General Counsel or his designee determines, after careful
consideration, that the testimony would clearly be in the interest of EPA. I serve as that designee
of the General Counsel in Region 4. See 40 C.F.R. §2.404.
Based on brief conversations with attorneys representing both parties in thfs matter, we
have learned that this suit involves issues of financial responsibility for environmental damage at
the Hilton Davis Chemical Company site in Cincinnati, Ohio. We also understand that you are
interested in questioning Mr. Hudson about a report he prepared over 30 years ago on Hilton
Davis's waste management practices at the site, when he worked as a staff engineer for an EPA
predecessor agency. We have reviewed a copy of this report, which was provided to Mr. Hudson
by Jeffrey Pollack, an attorney for Sterling Winthrop, Inc. Mr. Hudson acknowledges that he
wrote the report and that he also made the pencilled-in changes on the report. However, he is
unable to provide any more details to supplement the information in this report after the passage
of so much time. Furthermore, since Mr. Hudson was unsure about final work product status of
the report, we also contacted his supervisor at the time, Mr. Thomas Sorg, also an EPA
employee, to see if he could recall more details about the report. It is our understanding from Mr.
Sorg that the report was never finalized or made available to the public as an open-record report.
Under these circumstances, we have determined that providing Mr. Hudson for deposition
would not clearly be in EPA's interest. Since you have indicated that you have a copy of this
report and since Mr. Hudson has no information to add, his testimony would be, at best,
duplicative. In addition, it appears that this report and its contents were not adopted as final work
product of the United States Department of Health, Education, and Welfare Bureau of Solid
Waste Management's Division of Technical Services, thereby making the relevancy of the report's
contents questionable. These facts, as we understand them, do not outweigh either EPA's need
to ensure that Mr. Hudson's time is used only for official purposes or our need to maintain
impartiality among private litigants.
After consultation with Winston A. Smith, Director of the Air, Pesticides and Toxics
Management Division in Region 4,1 have therefore advised Mr. Hudson not to attend the
deposition and further advised him that the subpoena has no legal effect. State courts have no
constitutional authority to compel federal employees to provide testimony concerning their official
duties unless a federal statute confers such authority upon them. See Boron Oil Co. v. Downie.
873 F.2d 67 (4th Cir. 1989). I am not aware of any such federal statute that would apply here.
See also 40 C.F.R. §2.404(b).
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3
Since, according to 40 C.F.R. §2.405, subpoenas duces tecum for documents and other
materials are treated the same as subpoenas for testimony, I am also unable to conclude that
compliance with the subpoena duces tecum is clearly in EPA's interest. I have therefore advised
Mr. Hudson to respectfully refuse to produce the subpoenaed materials on June 18, 1999.
However, in accordance with our regulations, the requested documents will be provided or denied
pursuant to 40 C.F.R. Part 2, Subparts A and B.
Finally, we are returning the $10 check you sent to Mr. Hudson as a witness fee. If you
have any questions about this matter, please contact Ms. Karen Singer, of my staff, at 404/562-
9552.
Sincerely,
Phyllis P. Harris
Regional Counsel
Enclosure
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P 5fl2 4b3 3fl£
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UNITED STATES ENVIRONMENTAL PROTECTIO
REGION 4
ATLANTA FEDERAL CENTER
61 FORSYTH STREET
ATLANTA, GEORGIA 30303-8960
JUN 0 7
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. Mark Marion Akins
1553 Withmere Way
Atlanta, Georgia 30338-2842
SUBJ: Subpoena for Testimony Served on Kay Prince
The State v. Mark Marion Akins
Accusation #: 220085
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Dear Mr. Akins:
A subpoena, dated June 3, 1999, and issued by the State Court of Fulton County,
Georgia, was served on an Environmental Protection Agency (EPA or Agency) employee, Kay
Prince. The subpoena purports to require Ms. Prince to appear in the State Court of Fulton
County, Criminal Division, in Atlanta, Georgia to testify on your behalf on June 8, 1999.
EPA regulations at 40 C.F.R. Part 2, Subpart C govern compliance with such subpoenas
served on employees in state court proceedings where the United States is not a party. This
subpart sets forth the procedures to be followed when an EPA employee is subpoenaed to provide
testimony about information acquired in the course of performing official duties. The purpose of
the regulations is:
"...to ensure that employee's 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 or production of
documents when clearly in the interest of EPA." [40 C.F.R. Section 2.401(c)]
These concerns are extremely important to EPA because most of the Agency's studies,
inspections, regulatory actions, and similar activities deal with matters which may, and frequently
do, give rise to private litigation. Even though providing a witness for a few hours in one case
might not significantly impede our mission, the cumulative effect of such interruptions would be
very serious. Furthermore, providing official time for employees to testify may be perceived as a
failure by EPA to maintain impartiality among private litigants. These concerns provide the basis
for our "clear interests of EPA" standard for approving compliance with such subpoenas.
Therefore, under our regulations, employees may testify in state court matters where the
United States is not a party only when the General Counsel or his designee determines, after
Internet Address (URL) • http://www.epa.gov
Recyded/Recyclabl* • Printed with Vegetable Oil Based Inks on Recyded Paper (Minimum 25% Postconsumer)
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2
careful consideration, that the testimony would clearly be in the interest of EPA. I serve as that
designee of the General Counsel in Region 4. See, 40 C.F.R. Section 2.404.
Although the subpoena issued to Kay Prince contained no indication of the type of
testimony you seek in this matter, we understand, from several previous inquiries you have made
recently to the Region and from your most recent conversation with Nancy Tommelleo of my
staff on June 4, 1999, that you have sought a jury trial for a $75 traffic citation you received for
not coming to a full stop at a 4-way stop sign. You have indicated your belief that this particular
4-way stop sign is an unlawful speed trap and that you wish to use this case to show the adverse
air quality effects of 4-way stop signs in general. The testimony you seek from Ms. Prince
involves EPA's determination of how much air pollution in Atlanta is caused by motor vehicles.
In view of the facts of this case as you have described them, we have determined that
providing Ms. Prince's testimony would not clearly be in EPA's interest. EPA Region 4 does not
keep or have information on how much emissions are generated from 4-way stop signs. Further
we can no discern no critical link between the testimony you seek from Ms. Prince (on how much
air pollution in Atlanta is caused by motor vehicles) and your fine for failing to come to a full stop
at a 4-way stop sign. Finally, we note that in previous telephone discussions with the Region,
you have requested information on how much emissions are generated from 4-way stops.
Although, as noted above, EPA does not keep this type of information, the Region did provide
you with other information on EPA requirements with regard to emissions from mobile sources.
These facts, taken as whole, do not outweigh either EPA's need to ensure that Ms.
Prince's time is used only for official purposes or our need to maintain impartiality among private
litigants. After consultation with Winston A. Smith, Director of the Air, Pesticides and Toxics
Management Division in Region 4,1 have therefore advised Ms. Prince not to attend the June 8,
1999 hearing and further advised her that the subpoena has no legal effect. State courts have no
constitutional authority to compel federal employees to provide testimony concerning their official
duties unless a federal statute confers such authority upon them. See, Boron Oil Co. v. Downie.
873 F.2d 67 (4th Cir. 1989). I am not aware of any such federal statute that would apply here.
See also, 40 C.F.R. Section 2.404(b).
If you have questions about this matter, please contact Nancy Tommelleo, of my staff, at
404/562-9571.
Sincerely,
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GLORIA J. STEGER
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
ATLANTA FEDERAL CENTER
61 FORSYTH STREET
ATLANTA, GEORGIA 30303-8960
JUN 1 4 1999
4APT-APB
MEMORANDUM
SUBJECT: Subpoena for Testimony Served on Kay Prince
The State v. Mark Marion Akins
Accusation #: 220085
FROM: Winston A. Smith, Director
Air, Pesticides and Toxics Management Division
TO: Phyllis P. Harris, Regional Counsel and Director
Environmental Assessment Division
A subpoena, dated June 3,1999, and issued by the State Court of Fulton County,
Georgia, was served on an Environmental Protection Agency (EPA or Agency) employee, Kay
Prince to appear in the State Court of Fulton County, Criminal Division, in Atlanta, Georgia to
testify on behalf of Mark Marion Akins on June 8,1999. Although the subpoena issued to Kay
Prince contained no indication of the type of testimony sought in this matter, we understand, from
several previous inquiries Mr. Akins recently made to the Region and from his most recent
conversation with Nancy Tommelleo of your staff on June 4,1999, that Mr. Akins has sought a
jury trial for a $75 traffic citation for not coming to a full stop at a 4-way stop sign. Mr. Akins
has indicated his belief that this particular 4-way stop sign is an unlawful speed trap and that he
wishes to use this case to show the adverse air quality effects of 4-way stop signs in general. The
testimony sought from Ms. Prince involves EPA's determination of how much air pollution in
Atlanta is caused by motor vehicles.
EPA Region 4 does not keep or have information on the quantity of emissions generated
as a result of 4-way stop signs. Further, there does not appear to be a critical link between the
testimony sought from Ms. Prince (on how much air pollution in Atlanta is caused by motor
vehicles at 4-way stop signs) and Mr. Akins' fine for failing to come to a full stop at a 4-way stop
sign. Additionally, as noted above, EPA does not keep this type of information, in response to
previous telephone discussions with my staff, the Region did provide Mr. Akins with other
information on EPA requirements with regard to emissions from mobile sources. In view of the
facts of this case as described by Mr. Akins, I have determined that providing Ms. Prince's
testimony would not clearly be in EPA's interest and request that you provide the appropriate
letter to Mr. Akins and/or the court which would relieve Ms. Prince from any obligation to testify.
If you have any questions, please contact me.
iSEZj
Internet Address (URL) ~ http://www.epa,gov
RecyclecVFtocyclable •Printed with Vegetable Oil Based Inks on Recycled Paper (Minimum 25% Posicon»nrn«*rt
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^tO STt,
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5 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
'*? REGION IV
"~>. -c'
PflO1'
345 COURTLAND STREET. N.E.
ATLANTA. GEORGIA 30365
m 14is#
4RC
VIA FACSIMILE
Paul S. Hughes, Esq.
75 Second Avenue, Suite 450
Needham Heights, Massachusetts 02194
RE: M. Huberman. Inc.. et als v. E.I. DuPont de Nemours &
Company. Inc.. et als (Notice of Taking of Deposition
Duces Tecum of James R. West, II, Carlton Layne and
Designees of "Person in Charge").
Dear Mr. Hughes:
One deposition subpoena, from the Superior Court of Fulton
County, Georgia, was served on James R. West II, a United States
Environmental Protection Agency ("EPArt) employee, on May 22,
1995. In addition, it is our understanding that you intend to
serve two additional subpoenas from the Superior Court of Fulton
County, Georgia, one on Carlton Layne and the other on the
"Person in Charge," which we understand from you to be the
Regional Administrator, Region 4, EPA. The subpoena served on
Mr. West required him to appear for deposition for the purpose of
discovery and for the preservation of testimony at 9:00 a.m. on
May 26, 1995, at the offices of the appointed court reporters,
Brown Reporting, Inc., and to bring with him to the deposition
all documents related to thirty-three (33) separate subjects,
listed in "Exhibit A," attached to the subpoena. The subpoena
directed to the "Person in Charge" requires this person to
designate one or more individuals to appear to testify at
9:00 a.m* on May 24, 1995, at the offices of the appointed court
reporters, Brown Reporting, Inc., pursuant to Rule 30(b)(6) of
the Massachusetts Rules of Civil Procedure. The designee(s) are
to bring same documents requested of Mr. West and to testify as
to the subject matters set forth in "Exhibit B," attached to the
subpoena. We do not have a copy of the subpoena directed to
Carlton Layne.
EPA regulations at 40 C.F.R. Part 2, Subpart C, prohibit EPA
employees from testifying regarding official matters, either
voluntarily or in response to subpoenas, in any proceeding in
which the United States Government is not a party unless
authorized by the General Counsel or his designee under -40 C.F.R.
§ 2.404. The purpose of the regulations is:
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. . .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 or production of documents when clearly
in the interests of EPA." 40 C.F.R. §2.401(c)
The Courts have recognized that regulations of this kind
serve the legitimate purpose of "conserving governmental
resources where the United States is not a party to a suit and. . .
minimizing government involvement in controversial matters
unrelated to official business". See Boron Oil v. Downie, 873
F.2d 67, 73 (4th Cir. 1989). Moreover, in United States ex rfel.
Touhv v. Ragen. 340 U.S. 462 (1951), the Supreme Court had upheld
the validity of this kind of regulation. We understand your
client, M. Huberman, Inc. ("Huberman"), is involved in a lawsuit
with the E.I. DuPont de Nemours & Company, Inc. Based on
telephone conversations that you had with the Office of Regional
Counsel, we understand that you are interested in having
Mr. West, Mr. Layne and the Regional Administrator's designees
testify regarding the EPA, Region IV's investigation concerning
DuPont and DuPont's benlate product.
Employees may testify only where the General Counsel or his
designee determines that the testimony would "clearly be in the
interest of EPA." I serve as the designee of the General Counsel
for testimony by employees in EPA Region IV. See 40 C.F.R.
§2.404. In accordance with the regulations, I have consulted
with the Regional Administrator regarding this matter
These concerns are important to us because of the potential
number of private lawsuits in which EPA employees could be
requested to testify if the regulations are not strictly applied.
Even though providing a witness for a few hours in this case
might not significantly impede our mission, the cumulative effect
of such interruptions would be very serious. This concern is the
basis for our "clear interests of EPA" standard for approving
employees' testimony.
Under the circumstances of this case, we have determined
that providing Mr. West, Mr. Layne and the designees of the
"Person in Charge," (or the Regional Administrator) would not be
in the interest of EPA. Deposition testimony would interfere
with the Agency's active, ongoing investigation into DuPont and
DuPont's benlate product and there is a high likelihood that the
release of information at this time would reveal the internal
deliberations of EPA. Furthermore, the Superior Court of Fulton
County does not have jurisdiction to issue the subpoenas, neither
Mr. Layne nor the "Person in Charge" was served and Mr. West was
not provided adequate notice. Thus, the requested testimony in
this case is clearly not in the interest of EPA.
Therefore, by copy of this letter, as the General Counsel's
designee, I am advising Mr. West and Mr. Layne not to appear at
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the offices of the appointed court reporters, Brown Reporting,
Inc.. In addition, I am advising the Regional Administrator not
to appoint individuals to appear at the offices of the appoiiited
court reportersBrown Reporting, Inc. in response to
toassacnusefcES. JRutes of Civil Procedure, Rule 30(b) (6) .
if you have any questions concerning this matter., please
contact Lynda D. Crum at 347-2641, extension 2134.
Truly yours,
cc: John H. Hankinson, Jr.
Carlton Layne
James West, II
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-¦'*? s"v.
i UNITED STATES ENVIRONMENTAL PROTECTION AGENCY '
~, .f**" BFr.lflN IV £
r„ REGION IV
"¦ eoe11
345 COURTLAND STREET. N.E.
ATLANTA. GEORGIA 30365
July 30, 1992
4RC
VIA FACSIMILE
Kenneth S. Canfield, Esq.
Doffermyre Shields Canfield & Knowles
1600 The Peachtree
1355 Peachtree Street
Atlanta, Georgia 30309
RE: Burnett v. Myriad Properties, Civil No. D-91149 (Subpoenas
of Mr. William Patton and Ms. Larinda Gronner)
Dear Mr. Canfield:
Two subpoenas, dated July 28, 1992, from the Superior Court of
Fulton County, Georgia were served yesterday on two EPA
employees, William Patton, Chief, Pesticides and Toxic Substances
Branch, and Linda Groner (actual name Larinda Gronner), Chief,
Assessment and Allocation Unit. The subpoenas purport to require
Mr. Patton and Ms. Gronner to appear to be examined on deposition
by defendant in the above stated matter in Atlanta on July 31,
1992.
EPA regulations at 40 C.F.R. Part 2, Subpart C, prohibit EPA
employees from testifying regarding official matters, either
voluntarily or in response to subpoenas, in any proceeding in
which the United States Government is not a party. The purpose
of the 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 or production of documents when clearly
in the interests of EPA." [40 C.F.R. §2.401(c)]
Employees may testify only where the General Counsel or his
designee (or, where the request is from a state or local
government, a Staff Office Director or other official head)
determines that the testimony would "clearly be in the interests
of EPA." I serve as the designee of the General Counsel for
testimony by employees in EPA Headquarters. See 40 C.F.R.
§2.404. In accordance with the regulations, I have consulted
with the Regional Administrator regarding this matter.
These concerns are extremely important to us because most EPA
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- 2 -
studies, inspections, regulatory actions and similar activities
deal with matters which may, and frequently do, give rise to
private litigation. Even though providing a witness for a few
hours in this case might not significantly impede our mission,
the cumulative effect of such interruptions would be very
serious. This concern is the basis for our "clear interests of
EPA" standard for approving employees' testimony.
Based on the telephone conversations you have held with the
Office of Regional Counsel, we understand the subpoenas have been
issued in a private lawsuit which Mr. Thomas Burnett, an EPA
employee, has brought against a construction company for injuries
resulting from an alleged assault by the defendants. You have
informed us that you wish to question EPA employees who have
first-hand knowledge of Mr. Burnett in order to assess his claims
that he has and will continue to suffer damages in lost wages
because his job performance has deteriorated as a result of the
injuries.
Under the circumstances of this case, we cannot determine that
providing Mr. Patton and Ms. Gronner would be in the interests of
EPA. Any testimony which may be given in this suit has been made
available to you in writing. Mr. Burnett's Official Personnel
File,'which contains his Performance Appraisals, has been made
available to him pursuant to a waiver for the release of these
documents that he has executed. Pursuant to 40 C.F.R. §2.406,
these documents could be authenticated by our Agency in order to
assist you in making them admissible in court.
The effect of providing Mr. Patton and Ms. Gronner to private
litigants would constitute an improper diversion of EPA resources
for private purposes. EPA resources are severely limited and we
cannot permit private litigants to use the duty time of federal
employees for numerous proceedings.
I have advised Mr. Patton and Ms. Gronner not to attend the
deposition and I have further advised that the subpoenas have no
legal effect. The state courts have no constitutional authority
to compel federal employees to provide testimony concerning their
official duties unless a federal statute confers such authority
upon them. See Boron Oil v. Downie. 873 F.2d 67 (4th Cir. 1989).
I am not aware of any such federal statute that would apply here.
See also 40 C.F.R. §2.404(b).
Pursuant to your letter dated July 28, 1992, and addressed to
Attorney Maria J. Ramos, we hereby request that you dispense with
the depositions. We would appreciate it if we could receive a
letter from you to that effect.
Finally, we are in possession of the $28.00 (cash) witness fee
given to Mr. Patton and Ms. Gronner.
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-3-
If you have any questions concerning this matter, please contact
Maria J. Ramos at 347-5101, extension 2159.
Sincerely yours,
John R. Barker
Regional Counsel
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UNITED states EN VI SO, MENTAL FRC"ECT!CN age\c
August 2 4, 1992
VIA FACSIMII
3b-
James 0. Williams, Jr., Esquire
Derrevere & Williams, P.A.
224 Datura Street, Suite 1102
West Palm Beach, Florida 33401
Re: Subpoena For Trial Issued to Records Custodian, U.S. EPA,
Region IV, In The Matter Of Fitzgerald v. City Of Mount
Dora, Et. Al.,
Case No: 91-391-CA-01
Dear Mr. Williams;
The purpose of this letter is to respond to a Subpoena For
Trial directing the "Records Custodian" of EPA-Region IV to
appear and testify in the above-referenced matter in the state
circuit court in Tavares, Florida, on Monday, August 24, 1932.
In a telephone conference with Assistant Regional Counsel Stedman
S. Southall on August 20, 1992, you released the "Records
Custodian" from appearance on August 24, 1992. You also stated
you were interested in certain unspecified EPA records and you
would like certified copies of those unspecified records.
In addition to the subpoena to testify, you have telefaxed a
copy of a letter dated August 20, 1992, addressed to the "Records
Custodian", requiring the presence of the witness as stated in
the subpoena, and directing the witness to produce documents
relating to the City of Mount Dora Wastewater Water Treatment
Plant and effluent disposal system during the years 1983 through
1986.
This office has reviewed the subpoena, which has serious,
deficiencies. First, this is a subpoena issued by a Florida
state court for a proceeding in which the EPA is not a party. A
review of Florida state law did not yield any jurisdictional
authority allowing service of a subpoena upon an out-of-state
witness to appear in a Florida trial. Furthermore, state courts
have no constitutional.authority to compel federal employees to
provide testimony concerning their official duties unless a
federal statute confers such authority upon them. See Boron Oil
v. Downie, 873 F.2d 67 (4th Cir. 1989). I am not aware of any
such federal statute that would apply here. See also 40 C.F.R. §
2.404. Second, the $32.40 witness fee is grossly insufficient to
defray the travel costs of any witness from EPA's Regional Office
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- 2 -
in Atlanta, Georgia. Third, we have no indication that the
subpoena was personally served.
Because the subpoena was not validly issued or served, the
subpoena, the witness fee, and your August 20, 1992 letter are
herewith returned to you in this letter. I invite your attention
to the regulations at 40 CFR Part 2, which govern the production
of information by the Agency.
In addition, EPA regulations at 40 C.F.R. Part 2, Subpart
C, contain restrictions on EPA employees testifying regarding
official matters, either voluntarily or in response to subpoenas,
in any proceeding in which the United States Government is not a
party. The purpose of the 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 or production of documents when clearly
in the interests of EPA". [40 C.F.R. § 2.401 (c)]
Employees may testify only where the General Counsel or his
designee (or, where the request is from a state or local
government/ a Staff Office Director or other official head)
determines that the testimony would "clearly be in the interest
of EPA". I serve as the designee of the General Counsel for
testimony by employees in EPA Region IV. See 40 C.F.R. § 2.404.
These concerns are important to us because of the potential
number of private lawsuits in which EPA employees could be
requested to testify if the regulations are not strictly applied.
Even though providing a witness for a few hours in this case
might not significantly impede our mission, the cumulative effect
of such interruptions would be very serious. This concern is the
basis for our "clear interests of EPA" standard for approving
employees' testimony.
In this case the subpoena has been issued in a private lawsuit.
Previous to the issuance of said subpoena EPA had no knowledge of
the existence of the suit. Although we now know such a lawsuit
exists, we are not aware of the allegations contained in the
complaint and how EPA could possibly be involved in any way in
such lawsuit. As a result, it is impossible for EPA to issue a
determination that it would be in its interest to approve an
employee's testimony.; Both the subpoena and the letter fail, to
state why it would be" in the interests of EPA to approve a
request for an employee's testimony. As such, assuming the
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3
subpoena had been validly issued, I cannot determine that
according to the regulations it would be in the interests of EPA
tc provide testimony in this matter.
cc: Honorable James C. Watkins
Clerk of Court
Circuit Court
Fifth Judicial Circuit
Lake County Judicial Buildina Center
550 West Main Street
Tavares, Florida, 32778
Enclosures
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3
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION A
ATLANTA FEDERAL CENTER
61 FORSYTH STREET
ATLANTA, GEORGIA 30303-8960
NOV 1 9 2004
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Betsy L. Child
Commissioner
State of Tennessee
Department of Environment and Conservation
21st Floor, L & C Tower
401 Church Street
Nashville, TN 37243-0435
Subj: Request for Testimony, Sage of America Company
Dear Commissioner Child:
The purpose of this letter is to respond to your request for testimony in the above-
referenced matter. In your November 16, 2004, letter you stated that you would like
Environmental Protection Agency (EPA) Region 4 staff responsible for taking samples at Sage
of America Company, as well as those involved in obtaining the final analytical results, to be
able to attend the State's Solid Waste Disposal Control Board Meeting on December 7,2004, to
provide testimony for the purpose of authenticating the sampling results. You noted that EPA
took an active role in the case by sampling the waste in question, and that the testimony will
support the Resource Conservation Recovery Act (RCRA) enforcement program in the State of
Tennessee and protects the interests of EPA. Although not stated in your letter, in conversations
with Max Fleischer, from your Office of General Counsel, EPA understands that what you are
specifically seeking at this time is affidavits from four EPA personnel from EPA Region 4's
Science and Ecosystem Support Division: Debbie Colquitt, Mike Wasko, Francine VanCuron,
and Mike Neill.
EPA regulations at 40 C.F.R. Part 2, Subpart C, contain restrictions on EPA employees
testifying regarding official matters in any proceeding in which the United States Government is
not a party. The purpose of the 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 or production of documents when clearly in the interest of EPA.
40 C.F.R. § 2.401 (c).
Internet Address (URL) • http://www.spa.gov
Recycled/Recyclable . prtnled wHh Vegetable OK Based Inks on Racycletf Paper (Minimum 30% Poalconaumei)
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2
At the request of other Federal agencies or, where it is in the interest of EPA, at the
request of State or local governments, EPA employees may provide voluntary testimony, with
approval of the Regional Administrator. 40 C.F.R. § 2.402(a). The concern surrounding the
"interests" of EPA is extremely important to EPA because most EPA studies, inspections,
regulatory actions and similar activities deal with matters which may, and frequently do, give rise
to private and State litigation. Although providing a witness for a few hours in a particular
matter might not significantly impede our mission, the cumulative effect of such interruptiohs
would be very serious. This concern is the basis for our "interest of EPA" standard for approving
EPA employees' testimony.
Under the circumstances of this case, I have determined that allowing Ms. Colquitt, Mr.
Wasko, Ms. VanCuron and Mr. Neill to furnish the testimony you require, in the form of
affidavits, in response to your request, would be in the interest of EPA. I have concluded that
their production of voluntary testimony would contribute to EPA's mission and would not
constitute an improper diversion of EPA resources.
If you have any questions regarding this letter, please contact Joan Redleaf Durbin,
Associate Regional Counsel, at (404) 562-9544.
Sincerely,
J. I. Palmer, Jr.
Regional Administrator
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Confirmation Report - Memory Send
Page
Date 4 Tline
Line 1
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E-mai I
Machine 10
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Nov-19-04 04:16pm
404 562 9961
EPA R4 Regional Administrators Ofc.
Job number
: 081
Date
: Nov-19 04:15pm
To
: ttB6155320120
Number of pages
003
Start time
: Nov-19 04:15pm
End titne
: Nov-19 04:16pm
Pages sent
: 003
Status
: OK
Job number : 081
***
FACSIMILE
OFFICE OF THE REQIONAL ADMINISTRATOR
U.S. Environmental Rrotoortlon Agoncy
RaQlon
Atlanta. Federal Cantor
61 Forsyth Street, SW.
Atlanta, GA 30303-BS60
Data
To
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Toloptiona #:
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From:
Fax #:
Telephone #:
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FACSIMILE
OFFICE OF THE REGIONAL ADMINISTRATOR
U.S. Environmental Protection Agency
Region 4
Atlanta Federal Center
61 Forsyth Street, SW.
Atlanta, GA 30303-8960
Date:
To:
Fax #:
Telephone #:
From:
Fax #:
Telephone #:
h/S~~ S~££. -6/6 Q>
U/S~ - 9 SS3 -Q/-Zd
404/562-9961
33^7
No. of Pages (including Cover Sheet):
3
Comments:
EPA's mission is to protect human health and to safeguard
the natural environment — air, water, and land — upon which life depends.
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Shoran Sitton/R4/USEPA/US@EPA
Joan Redleaf-Durbin/R4/USEPA/US@EPA
TN Letter - Sage of America Company
I have carefully reviewed Joan's proposed reply to Commissioner Child's request, and I fully concur
in our position. By this email, I authorize you to affix my signature to the corrected draft of the
letter by autopen and immediately release it to Betsv. Please fa* Wer n ...» —
Jimmy
Jimmy To
Palmer/R4/USEPA/US
cc
11/19/2004 03:55 PM bcc
Subject
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Jimmy,
This letter came in yesterday. Per Allen I took this to OEA this morning.
They have completed it today because this needs to be signed before the
pre-hearing on December 1.
If you have a few minutes can you read this and then let me know if it is
O.K. to auto-pen? I will correct the errors I have marked (Joan emailed
me the letter).
Sharan
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STATE OF TENNESSEE
DEPARTMENT OF ENVIRONMENT AND CONSERVATION
NASHVILLE, TENNESSEE 37243-0435
BETSY L. CHILD PH'
COMMISSIONER GOVERNOR
November 16, 2004
Mr. James I. Palmer, Jr.
Regional Administrator
United States Environmental Protection Agency
Region IV
61 Forsyth Street, SW
Atlanta, GA 30303
Dear Administrator Palmer:
The State of Tennessee, Department pf Environment and Conservation is currently
pursing administrative enforcement against Sage of America Company, a Tennessee
company located in Ooltewah. A hearing before the Tennessee Solid Waste Disposal
Control Board is scheduled for December 7. 2004. Sage is a mechanical contractor
and boiler stud supplier for industrial boilers and is a generator of hazardous waste.
Department inspections at the facility in 2002 and 2003 found serious violations of the
Tennessee Hazardous Waste Management Act and the State's hazardous waste
management regulations. During the investigation of this matter, EPA Region IV staff
took several samples of the waste generated by the facility.
As a result of the sampling event by EPA personnel at Sage, one of the samples failed a
TCLP test for chromium, demonstrating that particular sample to be a hazardous wastejt_
is requested that the EPA individual responsible for taking that particular sample hp
allowed to attend the State's Solid Waste Disposal Control Board meeting on December
~7, 2UU4 to provide testimony for the purpose of authenticating the sampling results. ~
Authentication of these lab samples and analyses are critical evidence needed to
prosecute this administrative enforcement action. Therefore, in order to properly
authenticate the sample findings, the Stale requires the testimony of EPA region IV staff
responsible for talcing the samples, as well as any EPA staff involved in obtaining the
final analytical results.
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November 16, 2004
James I. Palmer, Jr.
Page 2
As you know, the State of Tennessee has delegated authority to administer the Resource
Conservation and Recovery Act (RCRA) in lieu of EPA. Because EPA took an active
role in this case by sampling the waste material in question, we believe that the testimony
of these EPA employees will serve to support enforcement of RCRA provisions in the
State of Tennessee and also serve to protect the interests of the EPA.
If you have any questions concerning this request, please do not hesitate to contact Max
Fleischer, Assistant General Counsel, at 615-532-0126.
Sincerely,
Betsy L. Child
Commissioner
Cc: Max Fleischer, Office of General Counsel
Charles Allen, Division of Solid Waste
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
ATLANTA FEDERAL CENTER
61 FORSYTH STREET
ATLANTA, GEORGIA 30303-8960
OCT 2 0 2004
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
David Steinfeld, Esq.
Kramer, Sopko & Levenstein, P.A.
853 S.E. Monterey Commons Blvd.
Stuart, Florida 34996
SUB J: City of Stuart v. Grumman Aerospace Corporation
Case No.: 03-14387 - CIV -GRAHAM / LYNCH
Your File No.: 6624.01
Dear Mr. Steinfeld:
The purpose of this letter is to respond to the subpoenas served on Mr. Jeff Pallas and Mr.
John Kroske of the United States Environmental Protection Agency (EPA), on behalf of the City of
Stuart, Florida, for depositions in the above-referenced matter. In your October 6, 2004, subpoenas,
received by EPA on October 14, 2004, Mr. Pallas and Mr. Kroske are commanded to appear on
November 1,2004, in Marietta, Georgia, for the taking of their depositions. The subpoenas do not
state with any specificity the content of the depositions. However, based on letters exchanged and
discussions you have had with Joan Redleaf Durbin, Associate Regional Counsel, Mr. Pallas and Mr.
Kroske would be deposed about EPA's general procedures applied to remediations such as the one at
issue in the above-referenced matter, whether the subject remediation is unique, EPA's involvement in
the subject remediation, and to confirm that the subject remediation is not complete by EPA standards.
These subpoenas seek the same deposition testimony that you previously requested as voluntary
testimony on August 26,2004, which was denied on September 10, 2004.
You have stated that providing this deposition testimony is in EPA's interest because it will
obviate the need for these employees to appear at trial, thereby saving EPA time and money. In
addition, you have explained that documenting the status of the subject remediation from EPA's
perspective preserves EPA's neutrality.
As noted previously, EPA regulations at 40 C.F.R. Part 2, Subpart C, contain restrictions on
EPA employees testifying regarding official matters in any proceeding in which the United States
Government is not a party. The purpose of the 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
Internet Address (URL) • http://www.epa.ffov
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2
procedures for approving testimony or production of documents when
clearly in the interest of EPA. 40 C.F.R. § 2.401 (c).
At the request of other Federal agencies or, where it is in the interest of EPA, at the request of
State or local governments, EPA employees may provide testimony, with approval of the Regional
Administrator. 40 C.F.R. § 2.402(a). This includes testimony by deposition, as well as at a trial. The
concern surrounding the "interests" of EPA is extremely important to EPA because most EPA studies,
inspections, regulatory actions and similar activities deal with matters which may, and frequently do,
give rise to litigation to which EPA is not a party. Although providing a witness for a few hours in a
particular matter might not significantly impede our mission, the cumulative effect of such interruptions
would be very serious. This concern is the basis for our "interest of EPA" standard for approving EPA
employees' testimony.
EPA has no direct interest in the pending litigation. The requested testimony would not be
consistent with the regulatory purpose set forth at 40 C.F.R. § 2.401(c), as the testimony would appear
to involve EPA in a purely private dispute. The reasons you have provided do not demonstrate that the
testimony would be consistent with these regulatory purposes, or in the interests of EPA. Whether
EPA employees are asked to provide testimony by deposition or at trial, the analysis is the same. The
fact that the requested form of the testimony is a deposition does not change the "interest of EPA"
standard for approving EPA employees' testimony, and the time and expense involved is still significant,
even if the deposition occurs at or near EPA's offices. In addition, much of the information you seek
concerning the subject remediation is available in the RCRA 3008 (h) Final Administrative Order on
Consent, Northrop Grumman Corporation, Stuart, Florida, EPA ID No. FLD 043 117 522, governing
the remediation.
Under the circumstances of this case, I have determined that allowing Mr. Pallas and Mr.
Kroske to furnish the deposition testimony you require, in response to your subpoenas, would not be in
the interest of EPA. I have concluded that their production of deposition testimony would not
contribute to EPA's mission, would not maintain EPA's impartiality between private litigants, and would
not ensure Mr. Pallas' and Mr. Kroske's time is used only for official purposes.
If you have any questions regarding this letter, please contact Joan Redleaf Durbin, Associate
Regional Counsel, at (404) 562-9544.
Sincerely,
J. I. Palmer, Jr.
Regional Administrator
bcc: Nancy Tommelleo, EPA Region 4
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
ATLANTA FEDERAL CENTER
61 FORSYTH STREET
ATLANTA, GEORGIA 30303-8960
VX o1/
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
David Steinfeld, Esq.
Kramer, Sopko & Levenstein, P.A.
853 S.E. Monterey Commons Blvd.
Stuart, Florida 34996
SUBJ: City of Stuart v. Grumman Aerospace Corporation
Case No.: 03-14387 - CIV -GRAHAM / LYNCH
Your File No.: 6624.01
Dear Mr. Steinfeld:
The purpose of this letter is to respond to your September 14, 2004, letter, requesting the
Regional Administrator to reconsider his previous denial of your August 26, 2004, requests on behalf of
the City of Stuart, Florida, for voluntary deposition testimony in the above-referenced matter. As the
Regional Administrator explained in his September 10, 2004, letter, EPA regulations at 40 C.F.R. Part
2, Subpart C, contain restrictions on EPA employees testifying regarding official matters in any
proceeding in which the United States Government is not a party. The purpose of the regulations is:
40 C.F.R. § 2.401 (c).
At the request of other Federal agencies or, where it is in the interest of EPA, at the request of
State or local governments, EPA employees may provide voluntary testimony, with approval of the
Regional Administrator. 40 C.F.R. § 2.402(a). This includes testimony by deposition, as well as at a
trial. The concern surrounding the "interests" of EPA is extremely important to EPA because most
EPA studies, inspections, regulatory actions and similar activities deal with matters which may, and
frequently do, give rise to litigation to which EPA is not a party. Although providing a witness for a few
hours in a particular matter might not significantly impede our mission, the cumulative effect of such
interruptions would be very serious. This concern is the basis for our "interest of EPA" standard for
approving EPA employees' testimony.
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 or production of
documents when clearly in the interest of EPA.
Internal Address (URL) • http://www.epa.gov
Recyctad/Recyclabls. Printed with Vegetable OB Based Inks on Recycled Paper (Minimum 30% Postconsumer)
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2
As the Regional Administrator noted in his September 10,2004, letter, EPA has no direct
interest in the pending litigation. The requested testimony would not be consistent with the regulatory
purpose set forth at 40 C.F.R. § 2.401(c), as the testimony would appear to involve EPA in a purely
private dispute. Your September 14, 2004, letter does not provide any new or additional information
that would justify the Regional Administrator reconsidering his decision on this matter.
As he stated in his September 10, 2004, response, the Regional Administrator determined that
allowing Mr. Pallas and Mr. Kroske to fumish the deposition testimony you request would not be in the
interest of EPA. The Regional Administrator concluded that their production of deposition testimony
would not contribute to EPA's mission, would not maintain EPA's impartiality between private litigants,
and would not ensure Mr. Pallas' and Mr. Kroske's time is used only for official purposes. These
determinations have not changed.
If you have any questions, please contact me at (404) 562-9544.
Sincerely,
Joan Redleaf Durbin
Associate Regional Counsel
bcc: Nancy Tommelleo, EPA Region 4
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
ATLANTA FEDERAL CENTER
61 FORSYTH STREET
ATLANTA, GEORGIA 30303-8960
SEP 1 0 2004
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
David Steinfeld, Esq.
Kramer, Sopko & Levenstein, P.A.
853 S.E. Monterey Commons Blvd.
Stuart, Florida 34996
SUB J: City of Stuart v. Grumman Aerospace Corporation
Case No.: 03-14387 - CIV -GRAHAM / LYNCH
Your File No.: 6624.01
Dear Mr. Steinfeld:
The purpose of this letter is to respond to your request on behalf of the City of Stuart,
Florida, for deposition testimony in the above-referenced matter. In your August 26,2004,
letters you indicated that you would like Mr. Jeff Pallas and Mr. John Kroske of the United
States Environmental Protection Agency (EPA) to provide deposition testimony on behalf of the
City of Stuart, Florida. Specifically, Mr. Pallas and Mr. Kroske would provide information on
EPA's general procedures applied to remediations such as the one at issue in the above-
referenced matter, whether the subject remediation is unique, and to confirm that the subject
remediation is not complete by EPA standards. You indicated that these gentlemen would need
to be available to provide this deposition testimony in Atlanta on or about September 13, 2004,
or another convenient date.
Your letters state that providing this deposition testimony is in EPA's interest because it
will obviate the need for these employees to appear at trial, thereby saving EPA time and money.
In addition, your letters explain that documenting the status of the subject remediation from
EPA's perspective preserves EPA's neutrality.
EPA regulations at 40 C.F.R. Part 2, Subpart C, contain restrictions on EPA employees
testifying regarding official matters in any proceeding in which the United States Government is
not a party. The purpose of the 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 or production of documents when clearly in the interest of EPA.
40 C.F.R. § 2.401(c).
internet Address (URL) • http://www.epa.gov
Recycled/Recyclable • Printed with Vegetable OB Based Inks on Recycled Paper (Minimum 30% Post consumer)
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2
At the request of other Federal agencies or, or where it is in the interest of EPA, at the
request of State or local governments, EPA employees may provide voluntary testimony, with
approval of the Regional Administrator. 40 C.F.R. § 2.402(a). This includes testimony by
deposition, as well as at a trial. The concern surrounding the "interests" of EPA is extremely
important to EPA because most EPA studies, inspections, regulatory actions and similar
activities deal with matters which may, and frequently do, give rise to litigation to which EPA is
not a party. Although providing a witness for a few hours in a particular matter might not
significantly impede our mission, the cumulative effect of such interruptions would be very
serious. This concern is the basis for our "interest of EPA" standard for approving EPA
employees' testimony.
EPA has no direct interest in the pending litigation. The requested testimony would not
be consistent with the regulatory purpose set forth at 40 C.F.R. $ 2.401(c), as the testimony
would appear to involve EPA in a purely private dispute. The reasons stated in your letter do not
indicate how the testimony would be consistent with these regulatory purposes, or in the interests
of EPA. Whether EPA employees are asked to provide testimony by deposition or at trial, the
analysis is the same. The fact that the requested form of the testimony is a deposition does not
change the "interest of EPA" standard for approving EPA employees' testimony, and the time
and expense involved is still significant, even if the deposition occurs at EPA's offices. In
addition, much of the information you seek concerning the subject remediation is available in the
RCRA 3008 (h) Final Administrative Order on Consent, Northrop Grumman Corporation, Stuart,
Florida, EPA ED No. FLD 043 117 522, governing the remediation.
Under the circumstances of this case, I have determined that allowing Mr. Pallas and Mr.
Kroske to furnish the deposition testimony you require, in response to your request, would not be
in the interest of EPA. I have concluded that their production of deposition testimony would not
contribute to EPA's mission, would not maintain EPA's impartiality between private litigants,
and would not ensure Mr. Pallas' and Mr. Kroske's time is used only for official purposes.
If you have any questions regarding this letter, please contact Joan Redleaf Durbin,
Associate Regional Counsel, at (404) 562-9544.
y. I. Palmer, Jr.
Regional Administrator
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3
bcc: Nancy Tommelleo, EPA Region 4
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
ATLANTA FEDERAL CENTER
61 FORSYTH STREET
ATLANTA, GEORGIA 30303-8960
FEB 1 8 2004
CERTIFIED MAIL
RETURN RECEIPT REQUESTED *
4WD-RCRA
Mr. Anthony R. Hatton, P.G.
Acting Director
Division of Waste Management
Kentucky Department for Environmental Protection
Frankfort Office Park
14 Reilly Road
Frankfort, Kentucky 40601
STJBJ: Environmental and Public Protection Cabinet
Bankruptcy Proceedings, Case No. 03-51021
LWD, Incorporated
Commonwealth of Kentucky
Dear Mr. Hatton:
The purpose of this letter is to respond to your request for testimony in the above matter.
In your February 12, 2004, letter you indicated that you would like Mr. Larry Lamberth of the
United States Environmental Protection Agency (EPA), Region 4, to provide testimony essential
in support of the Environmental Protection Cabinet's Motion for Administrative Expense Priority
in the above referenced bankruptcy proceeding involving LWD, Inc. Specifically, Mr. Lamberth
would provide factual information to support the Commonwealth's assertion that the conditions
of the facility are in such a state of deterioration that immediate remedial measures are necessary,
and the expense of such measures should have priority over other creditors. You indicated that
Mr. Lamberth would need to be available to provide testimony in the Western District of
Kentucky (Case No. 03-51021) in Paducah, Kentucky on February 19, 2004.
Your letter indicated that Mr. Lamberth would be expected to testify about what he
witnessed when he was on-site in October, 2003, and to testify about his findings during his years
of experience inspecting the facility.
EPA regulations at 40 C.F.R. Part 2, Subpart C, contain restrictions on EPA employees
testifying regarding official matters in any proceeding in which the United States Government is
not a party. The purpose of the regulation 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
Internet Address (URL) • http://www.epa.gov
Recycled/Recyclable •Printed with Vegetable Oil Based Inks on Recycled Paper (Minimum 30% Postconsumer)
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2
for private purposes and to establish procedures for approving testimony or production of
documents when clearly in the interests of EPA.
At the request of other Federal agencies or, where it is in the interests of EPA, at the
request of other State or local governments, EPA employees may provide voluntary testimony,
with approval of the Regional Administrator. 40 C.F.R. § 2.402 (a). The concern surrounding
the "interests" of EPA is extremely important to EPA because most EPA studies, inspections,
regulatory actions and similar activities deal with matters which may, and frequently do, give rise
to private and State litigation. Although providing a witness for a few hours in a particular
matter might not significantly impede our mission, the cumulative effect of such interruptions
would be very serious. This concern is the basis for our "interests of EPA" standard for
approving EPA employees' testimony.
Under the circumstances of this case, where the Commonwealth of Kentucky and EPA
have for years cooperated in inspections and enforcement actions involving LWD Inc., I have
determined that allowing Mr. Lamberth to furnish the testimony you require, in response to your
request, would be in the interests of EPA. I have concluded that Mr. Lamberth's voluntary
testimony would contribute to EPA's mission and would not constitute an improper diversion of
EPA resources.
If you should have any questions regarding this letter, please contact Frank Ney,
Associate Regional Counsel, at (404) 562-9532.
Sincerely yours,
Regional Administrator
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Hum. braneA ^Cv&ht" Club
m - SCDtt LO
Bill Sapp
08/11/03 02:38 PM
To: Nancy Tommelleo/R4/USEPA/US@EPA
cc:
Subject: Fw: Voluntary Request for Testimony by SCDHEC
Here it is Nancy! Take care.
— Forwarded by Bill Sapp/R4/USEPA/US on 08/11/2003 02:36 PM —
Kathy Matthews
08/11/2003 11:43 AM
cc:
Subject: Fw: Voluntary Request for Testimony by SCDHEC
To: Bill Sapp/R4/USEPA/US@EPA
Forwarded by Kathy Matthewa/R4/USEPA/US on 08/11/2003 11:43 AM —
Ronald Mlkulak
06/06/2003 01:1BPM
To: Kathy Matthews/R4/USEPA/US@EPA
cc:
Subject: Fw: Voluntary Request for Testimony by SCDHEC
Looks like...happy travels next week) I really appreciate your willingness to pick this up. Thanks again.
Ron
Ronald J. Mikulak, Chief
Wetlands Regulatory Section
EPA - Region 4
Phone#: 404-562-9233
FAX#: 404-562-9343
e-mail: mikulak.ronald@epa.gov
— Forwarded by Ronald Mikulak/R4/USEPA/US on 06/06/2003 01:17 PM —
Jim Glattina To: welbom.tomOepa.gov, Ronald Mikulak/R4AJSEPA/US@ EPA
Jim Giattina
Director, Water Management Division
US Environmental Protection Agency
Region 4
Allen Barnes
ftCOw* vniicuiioaines
iTOt*M^5/2fti03 ^07:02 PM
fo* Jim Giattina/R4/USEPA/US0EPA; Bill Anderson/R4/USEPA/US
tub j sett Re: Voluntary Request for Testimony by SCDHEC
I wanted to make sure we always ensure the DD has the opportunity to opine.^Thanks/sounds like .we are
"poodtorgo'
Allen
06/06/2003 08:31 AM
cc:
Subject: Fw: Voluntary Request for Testimony by SCDHEC
Alien Barnes
-------
US Environmental Protection Agency
Region 4
Jim Giattina
Pronxi Jim Giattina
Sent: 06/05/2003 06:40 PM
Tot Allen Barnes/R4/USEPA/US3EPA; Bill Anderson/R4/USEPA/US
Subject! Re: Voluntary Request £or Testimony by SCDHEC
Bill Sapp has been coordinating with Tom and Ron. I support EPA providing the testimony given that it is
a State request and deals with a State 401 decision. Given Jimmy's interest in States assuming their 401
authority, it would be discouraging for them if we didn't back them up. Also, Kathy is a Water employee,
she's not with the Athens Lab...Jim
Jim Giattina
Director, Water Management Division
US Environmental Protection Agency
Region 4
Allen Barnes
Froms Allen Barnes
Senti 06/05/2003 08:34 AM
Tot Bill Anderson/R4/USEPA/US; Jim Giattina/R4/USEPA/US0EPA
Subjecti Re: Voluntary Request for Testimony by SCDHEC
Does anyone know Jim Giattina's opinion on this?
Bill Anderson
Bill Anderson To: Allen Bamea/R4/USEPA/US®EPA
06/05/2003 0821 AM cc:
Subject: Re: Voluntary Request for Testimony by SCDHEC
At the bottom is Bill Sapp's articulation of our interest, and Nancy's analysis of it Bottom line is we think
approval would be appropriate.
Forwarded by Bill Anderson/R4/USEPA/US on 06/05/2003 08:20 AM
Bill Anderson To: Nancy Tomme«eo/R4/USEPA/US©EPA
06/04/2003 01:25 PM 001 Bi" Sapp/R4/USEPA/US©EPA
Subject: Re: Voluntary Request for Testimony by SCDHECg)
Thanks.
Nancy Tommelleo
Nancy Tommelleo To: Bill Anderson/R4/USEPA/US« EPA
06/04/2003 01:20 PM CC: _
Subject: Re: Voluntary Request for Testimony by SCDHEC^
Tying our 'interest' to the mission of the agency - i.e. to protect and preserve aquatic areas such as those
that would be destroyed by the proposed sea wall - is appropriate and is consistent with how the Region
analyzes these issues. Because we make this tie between providing the testimony and the mission of the
agency, we are promoting the two-fold intent of the regulations: to ensure EPA employee time is spent on
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EPA business, and to avoid appearance of taking sides in private litigation (which we are not doing if we
are participating because of a mission-oriented Interest).
I'm ok with this reasoning, particularly since State/govnt requests have arguably a lower "interest" test
than private requestors under the 'dearly in the interest" standard. Actually, we seem to be articulating
more of an 'interest* than we usually do with State requests.
Nancy
Bill Anderson
Bill Anderson To: Nancy Tommelleo/R4/USEPA/US®EPA
06/04/03 12-56 PM cc:
Subject: Re: Voluntary Request for Testimony by SCDHEC
Reaction?
— Forwarded by BUI Anderson/R4/USEPA/US on 06/04/2003 12:56 PM —
Bill Sapp To: Bill Andereon/R4/USEPA/US© EPA
06/04/200312:08 PM cc: «
Subject: Re: Voluntary Request tor Testimony by SCDHEC|§
Bill,
Ron Mikulak and I have discussed the 'in the interests of the agency" language at length and Ron is
comfortable that providing this testimony is in the interests of the agency, because, among other things, it
is the mission of this agency to protect and preserve aquatic areas such as those that would be destroyed
by the proposed sea wall. Also, the sea wall, considering its size, could serve as a precedent for other
similar structures in the area. It is important that this one be done correctly.
Ron is Kathy Matthew's supervisor and feels that supporting SC on this issue is worth Kathy*s absence. If
you need any additional information, please let me know.
Thanks.
Bill
Bill Anderson
Bill Anderson To: Bill 8app/R4AJSEPA/US 0 EPA
06/04/2003 09:30 AM cc: Allen Bames/R4/USEPA/US® EPA
Subject Re: Voluntary Request for Testimony by SCDHECo
I presume you have discussed this with her supervisors) and that they support this. We need to articulate
why it is in the interests of EPA to provide the testimony.
Bill Sapp
Bill Sapp To: Allen Barnes/R4/USEPA/US© EPA
06/04/2003 09-02 AM cc: Ronald Mikulak/R4/USEPA/US#EPA, Tom
Welbom/R4/USEP A/US© EPA, Bill Anderson/R4/USEP A/US© EPA,
Nancy Tommelteo/R4/USEPA/US©EPA
Subject: Voluntary Request for Testimony by SCDHEC
Allen,
-------
South Carolina's DHEC has requested that EPA supply a witness to testify in an administrative hearing
that is scheduled for Monday, June 9,2003, in which a property owner has appealed conditions that
DHEC has placed on a Clean Water Act Section 401 Water Quality Certification. In short, the property
owner wants to build a 6,620 sea wall along the banks of Lake Thurmond in S.C. The property owner
insists that sea wall needs to be constructed up to 50 feet lakeward of the ordinary high water mark.
DHEC contends that the wall should be built 10 feet from the ordinary high water mark so that destruction
of shallow lake aquatic habitat would be minimized. EPA has already provided a comment letter
supporting DHEC in this position. Kathy Matthews of the Athens Lab would be the person that we would
provide to give the testimony and I would prepare her for the hearing.
Please let me know as soon as possible whether the RA will approve this requesL
Thank you.
Bill
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06/*13/2003 10:53 8038983367
H E C
SCDHEC OGC
PAGE 02/04
6il\
promoYe protect prosper
2600 Bull Street
Columbia, SC 29201-1708
OFFICE OF GENERAL COUNSEL
Telephone (803)898-3350 Fax 898-3367
Email: SAM.FINKLEA@SCBAR.ORG
COMMISSIONER;
C. Earl Hunter
BOARD:
Bradford W. Wychc
Chairman
Mark B. Kent
Vice Choirmen
Howard L Brilliant, M!D
Secretary
Carl L. Biazell
Louisiana W. Wright
L. Miclwel Blackmon
Lawrence R. Chcwning, Jr., DMD
June 3,2003
Ronald J. Mikulak, Chief
Wetlands Regulatory Section
US EPA, Region 4
61 Forsyth Street
Atlanta, OA 30303-8960
Re: Request for testimony
Plum Branch yacht Club v. DHEC
Docket No. 02-ALJ-07-0150-CC
Dear Mr. Mikulak:
Plum Branch Yacht Club has appealed a 401 certification issued with
conditions by the Btaff of the Department of Health and Environmental Control.
In reviewing the certification application, staff considered comments from state
and Federal agencies. A letter dated January 22,2002, from you to Lt Col
Mueller, US Army Corps of Engineers, copy attached, is one of the documents
which was considered.
This appeal will be heard in Columbia before a state administrative law
judge on Monday, June 9, starting at 10:00; two days have been allotted. I am
writing to request the presence of an EPA employee to testify concerning your
letter. There is a substantial likelihood that the letter may not be admitted into
evidence without such testimony.
If I can provide any other information, please let me Know. Thank you for
your consideration of this request.
Sincerely,
Samuel L. Finklea, III
Attch: Mikulak to Mueller, January 22,2002
R:\10325\030603.wpd
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06/03/2003 10:53 8038983367
VK-23-02 12.44 FROM.EPA R4 DW+GW BRANCH DS
SCDHEC OGC
PAGE 03/04
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
R5QION «¦
AILANTA FEDERAL CENTER
61 FORSYTH STREET
ATLANTA, GSORG1A 30303-8860
JAN 2 2 200?
REF: 4WMD/WCWB/DW
Lt Colonel Peter W. Mueller
District Engineer
U.S. Army Corps of Engineers
69A Hagood Ave.
Charleston, SC 29403-5107
Attn: Debbie King
RE: P/N 2QQ1-1L-090-W Plum Branch. Yacht Club, Inc., McConnick County, South Carolina
At the request of the South Carolina Department of Health and Environmental Control
(SCDHEC). the U.S. Environmental Protection Agency (EPA) is providing comments on.the
above-rcfcrenced public notice.
The existing and proposed work Involves constructing interlocking atone seawalls with
rock and soil backfill along the shoreline of Lake Thurmond in McComiick County, South
Carolina. The proposed work would consist or 6,620 linear feet of seawalls ranging in height
from four to ten feet and requiring 10 to 30 feet of backfill. The piL-poiit of the proposed project
is to eliminate bank erosioa
In order to receive a Deportment of Army permit to discharge dredge or fill material into
waters of the U.S., the applicant must demonstrate, in accordance with the Clean Water Act
Section 404(b)(1) guidelines (Title 40 of the Code of Federal Regulation, Section 230), that the
discharge is unavoidable and the least enviroamcntaDy*dajnaguig practicable alternative that will
fulfill the basic project purpose. As currently proposed, the seawalls would be constructed
lakeward of the high water mark m some areas Uut are currently open water. The placement of
bulkheads beyond the existing shoreline to create or reclaim high ground would result in a
permanent loss of shallow lake aquatic habitat. Shallow lake areas btc a valuable resource to
u'QcUife providing spawning and foraging habitat for fishes anil invertebrates which support the
Lake Thurmond fond web As proposed, this work does not represent the least environmentally
damaging alternative for erosion control In accordance with 404(b)(1) guidelines, unless-the
applicant make* a sufficient demonstration of the least environrnentally-daaiag&ig practicable
alternative, the permit may be denied. Placement of bulkheads ac the existing shoreline "erosional
scurp" would represent a preferable alternative. Also, the applicant should place riprap at the
base of the bulkheads to prevent undercutting and include all other best management practices as
recommended by SCDHEC.
Inimnat Mdrctf (URL) • hnpV/www.«p».gsv
n«cyel«4/flicyal4bli < PilfltuS •rkn vignndt Oil Sued mi's on tocycbd Ptpw (Minimum 3att PdileanM/imfl
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PAGE 04/04
2
EPA is opposed to issuance of a permit for (his project as currently proposed. We do not
believe it adequately addresses the Guidelines concerning avoidance and minimization. Unless the
project is modified to reflect the above recommendations, we recommend that the permit be
denied.
Thank you for the opportunity to review this public notice. We look forward to working
with your office and the applicant to resolve our concerns with this project. Should you have any
questions regarding our comments, please contact Dairyl Williams at (404) 562-9297.
Sincerely,
Wetlands Regulatory Section
cc: see attached list
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
f JEL 5 REGION 4
I XaiAZ 5? ATLANTA FEDERAL CENTER Cc (>
,|f^? 61 FORSYTH STREET ^
^ pro^g ATLANTA, GEORGIA 30303-8960
OVERNIGHT CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Luke Morgan, Assistant Attorney General
Office of the Attorney General, Special Prosecutions Division
1024 Capital Center Drive
Frankfort, Kentucky 40601
Subj: Request for testimony of United States Environmental Protection Agency (EPA)
employee, Art Smith, before Circuit Court of Boyle County, Kentucky Grand Jury on
March 18,2003 at 9:30 a.m.
Dear Mr. Morgan:
The purpose of this letter is to respond to your request on behalf of the State of Kentucky
for testimony by an EPA employee before a Boyle County, Kentucky grand jury investigating
possible environmental crimes relating to the Burke Street Lead Superfund Site. Your subpoena
dated February 14,2003, but not received by EPA until March 10, 2003, requests that Art Smith
of EPA appear and provide testimony before the grand jury on March 18,2003 at 9:30 a.m. in the
Circuit Court of Boyle County, Kentucky. Because your subpoena was not properly served, we
are interpreting it as a request for voluntary testimony. During a telephone conversation on
March 10,2003, between you and EPA Associate Regional Counsel, Valerie Nowell, you
indicated that you wanted Mr. Smith to testify about EPA's sampling and clean up efforts at the
Burke Street Lead Superfund Site, including testimony about a trench containing battery chips
that was found on property developed by Mike Curtis.
EPA regulations at 40 C.F.R. Part 2, Subpart C, contain restrictions on EPA employees
testifying regarding official matters in any proceeding in which the United States Government is
not a party. The purpose of the 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 or production of documents when clearly in the interest of EPA.
40 C.F.R. §2.401 (c).
At the request of other Federal agencies or, where it is in the interest of EPA, at the
request of State or local governments, EPA employees may provide voluntary testimony, with
approval of the Regional Administrator. 40 C.F.R. § 2.402(a). The concern surrounding the
AW/? J 2 2003
Internet Address (URL) • http://www.epa.gov
Recycled/Recyclable •Printed with Vegetable Oil Based Inks on Recycled Paper (Minimum 30% Postconsumer)
-------
"interests" of EPA is extremely important to EPA because most EPA studies, inspections,
regulatory actions and similar activities deal with matters which may, and frequently do, give rise
to private and State litigation. Although providing a witness for a few hours in a particular
matter might not significantly impede our mission, the cumulative effect of such interruptions
would be very serious. This concern is the basis for our "interest of EPA" standard for approving
EPA employees' testimony.
Under the circumstances of this case, I have determined that allowing Art Smith to
furnish the testimony you require, in response to your request, would be in the interest of EPA. I
have concluded that his production of voluntary testimony would contribute to EPA's mission
and would not constitute an improper diversion of EPA resources.
If you have any questions regarding this letter, please contact Valerie Nowell, Associate
Regional Counsel, at (404) 562-9555.
Sincerely,
Regional Administrator
2
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:c: Nancy Tommelleo, EPA Region 4
3
-------
Sr*r*
^ ^ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
s t REGION 4
| ^XlZZ ° ATLANTA FEDERAL CENTER
Gi FORSYTH STREET
^ piioif0 ATLANT A. GEORGIA 30303-8960
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MEMORANDUM
SUBJECT: Credential Verification for Arthur B. Smith
FROM: Matthew W. Taylor, Chief
Removal and Oil Programs Section
TO: Bonnie Sawyer
Associate Regional Counsel
I have verified the following credentials:
Degrees/Accreditation
B.S. Degree in Civil Engineering on 9/6/86 from the Georgia Institute of Technology, Atlanta,
GA.
Professional Engineer, Georgia License #021080
I verified the above credential by reviewing Art Smith's college transcript and a copy of his P.E.
license.
Matthew W. Taylor, Chief
Removal and Oil Program Section
Internet Address (
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&
Bill Anderson
To: Nancy Tommelleo/R4/USEPA/US @ EPA
cc:
Subject: Re: Request for Testimonial Assistance - SCDHEC
01/10/03 08:43 AM
fyi
Forwarded by Bill Anderson/R4/USEPA/US on 01/10/2003 08:43 AM
Allen Barnes
To: Bill Anderson/R4/USEPA/US@EPA, Allan Antley/R4/USEPAAJS@EPA
01/09/2003 08:04 PM
cc:
Subject: Re: Request for Testimonial Assistance - SCDHEC
ft has been cleared and approved.
Allen
Allen Barnes
US Environmental Protection Agency
Region 4
Bill Anderson
From: Bill Anderson
Sent: 01/08/2003 01:25 PM
To: Allan Antley/R4/USEPA/US@EPA
Cc: Allen Barnes/R4/USEPA/US@EPA
Subject: Re: Request for Testimonial Assistance - SCDHEC
Since this is a state request, it's the RA's decision. Allen, can you clear with Jimmy? I'd say this request
certainly falls within the interests of EPA.
Allan Antley
I have discussed this matter with Gary and I believe that it is in our interest to support the State with Mr.
Birch's testimony at this hearing. We provided the basis for the DHEC decision and we need to continue
to support the State and our position through the hearing process on Jan. 16
Per our procedures prior to providing such support, I am requesting your approval for Mr. Birch to
participate.
Allan
(706) 355-8506
----- Forwarded by Allan Antley/R4/USEPA/US on 01/08/03 11:28 AM -----
Allan Antley
01/08/2003 11:35 AM
To: Allen Bames/R4/USEPA/US@EPA, Bill
Anderson/R4/USEPA/US @ EP A
cc:
Subject: Request for Testimonial Assistance - SCDHEC
Gary Bennett
01/08/03 11:04 AM
To: Allan Antley/R4/USEPA/US@EPA
cc: Mike Birch/R4/USEPA/US@EPA
Subject: Request for Assistance - SCDHEC
I have received a written request from Wayne Davis, Director, Office of Environmental Laboratory
Certification, SCDHEC, for Mike Birch, SESD, Office of Quality Assurance and Data Integration, to testify
in a hearing before DHEC's Administrative Law Division. This request is based on technical assistance
-------
provided by Mike Birch to a SCDHEC Lab Certification Officer which was used in a subsequent DHEC
decision regarding proper performance of a test (Biochemical Oxygen Demand) by the laboratory. The
laboratory involved is challenging DHEC's decision on the proper way to perform the test, and the DHEC
Administrative Law Division has requested that Mr. Birch be present at the hearing to verify the technical
information he provided. I believe Mr. Birch's presence and testimony at the hearing would be beneficial
to SCDHEC's lab certification effort and that he should attend. Please contact me if you have any
questions.
Gary Bennett
Chief, Office of Quality Assurance and Data Integration
USEPA - R4 SESD
980 College Station Road
Athens, GA 30605
706-355-8551
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vo/xa/vt lu: JB 1
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DIV1 GA ATTY GEN
@003
2
approval of the Regional Administrator. 40 C.F.R. § 2.402(a). The concern surrounding the
"interests" of EPA is extremely important to EPA because most EPA studies, inspections,
regulatory actions and similar activities deal with matters which may, and frequently do, give rise
to private and State litigation. Although providing a witness for a few hours in a particular matter
might not significantly impede our mission, the cumulative effect of such interruptions would be
very serious. This concern is the basis for our "interest of EPA" standard for approving EPA
employees' testimony.
Under the circumstances of this case, I have determined that allowing Mr. Childress and
Mr. Parker to furnish the testimony you require, in response to your request, would be in the
interest of EPA I have concluded that their production of voluntary testimony would contribute
to EPA's-mission and would not constitute an improper-diveFsien-of EPAresoureesr
If you have any questions regarding this letter, please contact William B. Bush, Jr.,
Associate Regional Counsel, at (404) 562-9538.
Sincereiy.
Acting Regional Administrator
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
ATLANTA FEDERAL CENTER
61 FORSYTH STREET
ATLANTA, GEORGIA 30303-8960
X
uI
o
T
MEMORANDUM
m 2 4 2001
SUBJECT: Request for EPA Testimony
FROM: Leif Palmer cVy
Office of Air Toxics & General Law
Environmental Accountability D'™®'""
THROUGH: Carol L. Kemker, Acting Chief f a /=bY<^f/.'A
Permits, Grants and Technical Assistance Branch
Water Division
TO:
A. Stanley Meiburg
Acting Regional Administrator
The Office of Water has received a request for voluntary testimony for a deposition by -
Mario Machado, P.E., in a state court civil matter between the cities of St. Petersburg Beach and
St. Petersburg. The dispute involves rates charged by St. Petersburg for treating wastewater from
St. Petersburg Beach. Both cities received a construction grant from EPA in the late 1970's.
Those grants required that the cities agree to a rate structure for the treatment of wastewater. The
grants have been closed for several years and the record retention period for those files has
expired. Thus, Mr. Machado is needed to testify about the EPA construction grant program, rate
structures between communities that received construction grants under Title n of the clean
Water Act and other factual matters.
Since this matter involves two local governments, both of which were recipients of EPA
construction grant funds and since this matter involves possible changes to the rate structures in
which citizens pay to receive wastewater services from a public financed and owned treatment
works, EAD concludes that this matter is "in the interest of EPA" and that the Water Division
may provide the requested testimony.
This matter is of an urgent nature since the time for discovery cut-off in the civil case is
tomorrow, Friday, May 25,2001. EAD recommends that instead of sending a formal letter the
Acting Regional Administrator direct the Water Division to contact the requestor and arrange a
suitable time f J *' ' ' :e other reasonable accommodation to provide
the requested
CONCUR:
ittp://www.epa.gov
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ial Administrator
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05/2J/01 WED 15:39 FAX 8192223087
FOWLER WHITE
@001
Fax
Writer's Direct Line (813) 222-1104
Attorneys at Lav
urgent
Please deliver the following pages immediately to:
Name:
Ms. Maty Wilkes, Counsel for Water Division
Firm:
US Environmental Protection Agency
Fax:
(404) 562-9486
Total Number of Paces 3 (including this caver page)
From:
Robert A. Williams, Esq.
Date;
5/53/2001
File:
Sl Pete
File No.:
999-0129
Message:
Please see that attached letter to Beverly Bannister, Water Division Director.
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soi E. Kennedy Blvd., suite itoq, Tampa, Florida 33603 P.O. Box 1438, Tampa, Ft 33601
TELEPHONE (813) 229-7411- FAX (113) 2294313 - wTrw.fowlerwhite.com
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05/23/01 WED 15:59 FAX 8132223067 FOWLER WHITE 0002
Fowler
White
AttOMNBrs at Lav
May 23,2001
VIA FACSIMILE (404)562-9318
Beverly Bannister, Water Division Director
US Environmental Protection Agency
61 Forsyth St.
15* Floor
Atlanta, GA 30303
RE: City of St. Pete Beach v. City of St Petersburg
Pinellas County Circuit Court
Testimony of Mr. Mario Machado
Dear Mb. Bannister
On behalf of the City of St. Pete Beach and pursuant to 40 CFR2.402(a), we request the
voluntary testimony of EPA employee, Mario Machado inlitigation currently pending between the
City of SL Pete Beach and the City of St Petersburg in Pinellas County, Florida.
Unfortunately, we must request that EPA expedite the consideration of this issue due to a
misunderstanding between counsel for the City of SL Pete Beach and Mr. Machado, wherein it was
not made known to counsel until this morning that Mr. Machado could not appear without your
permission, contrary to earlier discussions with counsel There is a discovery cut-off on Friday,
May 25, 2001. We would be amenable to paying Mr. Machado's travel expenses to attend a
deposition in Tampa, Florida or SL Petersburg, Florida and would pay associated costs of EPA
counsel if you deem that necessary.
The city otSL Pete Beach believes it is in the best interest of EPA to provide Mr. Machado's
testimony to assist the prior fact and understanding ofEPA's Construction Grant Program. We have
been unable to obtain the historical records from EPA, and Mr. Machado has personal knowledge
ofhow the grant program operated and in particular, the user fee structure which is the subject of this
litigation. We believe EPA has an interest in maintaining an adequate public understanding of this
program and Mr. Muchado's testimony in this would be helpful in fostering EPA's interest.
Foxtler, White, Cillen, BOuo, villa real and banker, P.A.
Tamu » CLtt»g«TH « f»i«r Mvtks - St. PcTikstuir. • Talcahassm
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05/23/01 WED 15:59 FAX 8132223067
FOWLER WHITE
@003
May 23,2001
Page 2
I understand the regional administrator must approve this request, and I request the
undersigned counsel be notified upon receipt of this correspondence. I appreciate your expedited
consideration of this request If you have any questions or require additional information, please
contact me at (813) 222-1104 at your earliest convenience.
Sincere!;
CC: Mary Wilkes, Counsel for Water Division (404)562-9486
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5 §5742
TRAVEL, TRANSPORTATION. ETC. Q,
ch 57 MISCELLA
Powers and duties of officers, agents, and employees generally, see United S
®=40, 41.
Encyclopedias
Compensation of officers, agents, and employees: reimbursement for expea
loss, see C.J.S. United States §§ 43 et seq., 47.
Powers and duties of officers, agents, and employees generally, set CJ.S. Ui
States § 38 et seq.
WESTLAW ELECTRONIC RESEARCH
United States cases: 393k[add key number].
See, also, WESTLAW guide following the Explanation pages of this volume.
SUBCHAPTER IV—MISCELLANEOUS PROVISIONS
HISTORICAL AND STATUTORY NOTES
Amendments
1970 Amendments. Pub.L. 91-563,
§ 4(a), Dec. 19. 1970, 84 Stat. 1477, add-
ed heading of Subchapter IV.
§ 5751. Travel expenses of witnesses
(a) Under such regulations as the Attorney General may prescribe
an employee as defined by section 2105 of this title (except «|
individual whose pay is disbursed by the Secretary of the Senate a
the Clerk of the House of Representatives) summoned, or assigned b
his agency, to testify or produce official records on behalf of tfai
United States is entitled to travel expenses under subchapter I of tfaj
chapter. If the case involves the activity in connection with which Ik
is employed, the travel expenses are paid from the appropriating
otherwise available for travel expenses of the employee under prope
certification by a certifying official of the agency concerned. If th
case does not involve its activity, the employing agency may advaoo
or pay the travel expenses of the employee, and later obtain rein
bursement from the agency properly chargeable with the travc
expenses.
(b) An employee as defined by section 2105 of this title (except u
individual whose pay is disbursed by the Secretary of the Senate a
the Clerk of the House of Representatives) summoned, or assigned b»
his agency, to testify in his official capacity or produce officia
records, on behalf of a party other than the United States, is entitle*
to travel expenses under subchapter I of this chapter, except to tlx
extent that travel expenses are paid to the employee for his appear*
ance by the court, authority, or party which caused him to be
summoned.
(Added Pub.L. 91-563, § 4(a), Dec. 19, 1970, 84 Stat. 1477.)
248
HIS
^vision Notes and Legl
1970 Acts. Senate Re|
. |970 U.S. Code <
P 5014.
transfer or Functions
Certain functions of t
jfcpresentatives transfer
Mon-legislative and Fina
American Digest System
Compensation of of
loss, see Unite
Encyclopedias
Compensation of of
loss, see CJ.S
WE
United States cases:
See, also. WESTLA\
§ 5752. Travel
Employing agem
Service positions t
ment Interviews rec
(Added Pub.L. 95-454
HIS*
Revision Notes and Legl
1978 Acts. Senate Re
jnd House Conferen
¦J5-I717. see 1978 U.S.
Adm. News. p. 2723.
Effective Dates
1978 Acts. Section e:
jfier Oct. 13, 1978, a
American Digest Systen
Compensation of O!
loss, see Unii
Encyclopedias
Compensation of o
loss, see C.J..'
W1
United States cases
See. also. WESTL*
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
ATLANTA FEDERAL CENTER
61 FORSYTH STREET
ATLANTA, GEORGIA 30303-8960
April 26, 2001
VIA FACSIMILE and U.S. MAIL
Chuck D. Barlow
General Counsel
Mississippi Department of
Environmental Quality
Post Office Box 20305
Jackson, Mississippi 39289-1305
SUBJ: Maranatha Faith Center. Inc. v. Kerr-McGee Corp.. et al.
Dear Mr. Barlow:
You recently requested on behalf of the Mississippi
Department of Environmental Quality (MDEQ) that an appropriate
employee of EPA, Region 4 provide an affidavit to be filed by
MDEQ in support of its response in opposition to Plaintiff's
Motion for a Preliminary Injunction filed in the above action.
MDEQ is a named defendant in that action, and your understanding
of the complaint filed against MDEQ is that it seeks an order of
the trial court requiring that Kerr-McGee stop contaminating the
plaintiff's property and that MDEQ declare the site a Superfund
site and condemn the property.
EPA is not a party to the action filed against Kerr-McGee
and MDEQ, and has no notice or opinion as to the nature of the
action filed or the relief sought by the plaintiff.
As General Counsel for MDEQ, you are requesting that EPA
issue an affidavit "that merely describes the status of EPA's
investigation in this matter, the statutory, regulatory, and/or
permit authority under which EPA is investigating ..., and the
possible steps that EPA may take subsequent to its
investigation."
EPA regulations at 40 C.F.R. Part 2, Subpart C, prohibit EPA
employees from providing testimony or producing documents in any
proceeding, to which the United States is not a party, concerning
information or documents regarding official matters acquired in
Internet Address (URL) • http://www.epa.gov
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-------
the course of performing official duties or because of the
employee's official relationship with EPA unless authorized by
the EPA General Counsel or his designee under Sections 2.403
through 2.406 of 40 C.F.R. 40 C.F.R. Section 2.402(b) The
purpose of these regulations, as set forth at 40 C.F.R. Section
2.401(c), is:
... to ensure that employee's official time is used only for
official purposes, to maintain the impartiality of EPA among
private litigants [in connection with disputes between
themselves], to ensure that public funds are not used for
private purposes and to establish procedures for approving
testimony or production of documents when clearly in the
interests of EPA.
1 am the designee of the EPA General Counsel for determining
whether requested voluntary testimony by employees in
EPA, Region 4 wis clearly within the interests of EPA." In
accordance with 40 C.F.R. Section 2.403, I have consulted with
the appropriate EPA, Region 4 staff office directors regarding
this matter.
As a result of those consultations, I have concluded that
EPA's interests are best served by issuing the affidavit of -the
appropriate EPA employee, stating: that the Kerr-McGee facility
at Columbus, Mississippi is being investigated for releases of
hazardous waste and hazardous constituents, together with the
impacts of any such releases on environmental media and the
identification of any receptors or potential receptors of any
released hazardous waste or constituents. Under a phased
investigatory approach, the investigation is now proceeding on
the property that makes up the Kerr-McGee facility and on
adjacent and nearby property in the area of the facility. That
investigation, as stated in the affidavit, is being conducted
pursuant to the Solid Waste Disposal Act, as amended by the
Resource Conservation and Recovery Act (RCRA) of 1976, 42 U.S.C.
Section 6901 et sea., and the Hazardous and Solid Waste
Amendments (HSWA) of 1984, P.L. 98-616, and regulations
promulgated thereunder by EPA (codified in Title 40 of the Code
of Federal Regulations).
The affidavit, given by Russ McLean, the RCRA Permit Writer
for the Kerr-McGee Columbus, Mississippi facility, outlines the
investigation activities conducted to date by Kerr-McGee and the
statutory and regulatory authority under which those activities
have been performed. I have concluded that the information
included in the affidavit would be valuable to any court
reviewing federal regulatory activities previously conducted and
2
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now being carried out at the facility, and would assist the court
in determining the present status of the EPA administrative
record of regulatory activities at the facility. Such
information would be helpful to the court in determining and
understanding the statutory and regulatory scheme under which EPA
and MDEQ are overseeing the investigation of environmental
contamination and potential corrective action at the Kerr-McGee
facility.
EPA has not yet formed an opinion as to the need for or
nature of any corrective action that might be justified or even
required by the as-yet-incomplete RCRA investigative findings at
the Kerr-McGee Columbus, Mississippi facility.
I am happy to provide this response to your request on
behalf of the State of Mississippi and the Mississippi Department
of Environmental Quality for affidavit testimony by EPA.
Sincerely yours,
Regional Counsel and Director
Environmental Accountability
Division
Enclosure
3
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mi
3 ^
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. Earl G. Gallop
3225 Aviation Avenue - Third Floor
Miami, Florida 33133-4741
Re: Request for Testimony in BB&L v. City of North Miami
Case No. 97-1484 CIV-HURLEY (S.D. Fla. 1997)
Dear Mr. Gallop:
The purpose of this letter is to respond to your July 21, 1999, letter in which you
requested that Mr. Brad Jackson of the United States Environmental Protection Agency (EPA)
honor a federal trial witness subpoena to provide testimony for the City of North Miami (City) in
the above captioned case. Specifically, Mr. Jackson would provide factual information with
respect to the City's assertion that Blasland, Bouck & Lee (BBL), the City's response action
contractor, was negligent in performing hydrogeologic studies and groundwater modeling, and in
preparing a pre-final 90% engineering design report (PDR) for the hydraulic barrier at the
Muriisport Superfund Site (Site). You indicated that Mr. Jackson would need to be available to
provide this testimony in the Federal District Court in and.for the.Southern District of-Florida-at
some time during the three-week scheduled trial period beginning October 12, 1999.
Your letter indicated that Mr. Jackson would be expected to testify regarding the alleged
inadequacy of BBL's work, as more specifically described above, which the City alleges
warranted BBL's discharge. Specifically, through the testimony of Mr. Jackson, the City intends
to rebut BBL's assertion that BBL did only what Mr. Jackson instructed BBL to do and
therefore, that BBL's work was deemed adequate by EPA and met any applicable standards of
care. The City believes that Mr. Jackson's testimony will, in fact, show that BBL was directed to
construct and test only a segment of the system by Mr. Jackson in an effort to reveal design flaws
in the system.
EPA regulations at 40 C.F.R. Part 2, Subpart C, contain restrictions on EPA employees
:estifying regarding official matters in any proceeding in which the United States Government is
lot a party. The purpose of the 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
- * UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
*¦ REGION 4
,W
ATLANTA FEDERAL CENTER
—1—61 FORSYTH STREET
wcrf*-0 ATLANTA, GEORGIA 30303-8960
Internet Address (URL) • http://www.Bpa.gov
Recycled/Recyclable • Printed with Vegetable Oil Based Inks on
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2
funds are not used for private purposes and to establish procedures for approving
testimony or production of documents when clearly in the interests of EPA.
40 C.F.R. §2.401(c).
At the request of other Federal agencies or, where it is in the interests of EPA, at the
request of State or local governments, EPA employees may provide voluntary testimony, with
approval of the Regional Administrator. 40 C.F.R. §2.402(a). The concern surrounding the
"interests" of EPA is extremely important to EPA because most EPA studies, inspections,
regulatory actions and similar activities deal with matters which may, and frequently do, give rise
to private and State litigation. Although providing a witness for a few hours in a particular matter
might not significantly impede our mission, the cumulative effect of such interruption would be
very serious. This concern is the basis for our "interests of EPA" standard for approving EPA
employees' testimony.
Under the circumstances of this case, I have determined that allowing Mr. Jackson to
furnish the testimony you require, in response to your request, would be in the interests of F.P A
have concluded that Mr. Jackson's production of testimony would contribute to EPA's mission
and would not constitute an improper diversion of EPA resources. Therefore, EPA will not move
to quash a federal trial subpoena properly issued on behalf of the City of North Miami to compel
the presence of Mr. Brad Jackson.
If you have any questions regarding this letter, please contact Mike Stephenson, Assistant
Regional Counsel, at (404) 562-9543.
John H. HankinsSn, Jr.
Regional Administrator
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I JSL 5 REGION 4
| XaiZZ ® ATLANTA FEDERAL CENTER
61 FORSYTH STREET
^ ATLANTA, GEORGIA 30303-8960
(Confidential Attorney-Client Communication)
MEMORANDUM
SUBJECT; Recommendation on Request for Employee Testimony in the Matter of BB&L v.
City of North Miami, Case No. 97-1484 CIV-HURLEY (S.D. Fla. 1997)
FROM: Mike Stephenson, Assistant Regional CounseJ
THRU: Bill Anderson, Associate Director, EAD
Richard D. Green, Director, WMD
TO: John H. Hankinson, Jr., Regional Administrator
The City of North Miami (the City) has requested the testimony of Mr. Brad Jackson,
RPM for the Munisport Landfill Site, in the above captioned matter. In the attached July 21,
1999 letter, the City inquires whether EPA will honor a federal trial witness subpoena if issued.
The City has indicated that Mr. Jackson's requested testimony would be in the form of trial
testimony over a one to two day period and possibly a one day deposition. The trial is scheduled
to commence October 12, 1999.
The City, PRP at the Munisport Superfund Site, discharged its contractor, BB&L, based
on what the City believes to be BB&L's negligence in designing the remedy for the Site. The City
further refused to pay BB&L invoices related to BB&L's design work. BB&L brought the above
captioned action for the payment of those invoices, and the City countered that BB&L was
professionally negligent.
Where it is in the interests of EPA, at the request of State or local governments, EPA
employees may provide testimony with approval of the Regional Administrator. 40 C.F.R.
§2.402(a). Pursuant to EAD's Handbook for Processing Testimony Requests and Subpoenas, the
City's request for testimony was discussed with Mr. Brad Jackson and his immediate supervisor,
Mr. Jim McGuire. Messrs. Jackson and McGuire determined that Mr. Jackson's testimony would
be in the interests of EPA in this case and that providing Mr. Jackson would not impose too great
a burden on the Agency's resources.
Therefore, it is our recommendation that Mr. Jackson be allowed to testify in this instance
as it is in the interests of EPA for the following reasons: 1) EPA believes the City appropriately
Internet Address (URL) • http://www.epa.gov
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2
discharged a contractor whose work was inadequate; 2) the City's request presents the unique
situation where EPA believes that its documents do not necessarily "speak for themselves" and
may be read to support the contractor's position that it performed only as directed by EPA; 3) for
purposes of ensuring that PRPs in the future retain contractors that perform timely and
appropriate work, it is important for PRPs to know that EPA will support them if they discharge
an inadequate contractor; and 4) based on the nature of the testimony requested, there is some
legal risk that EPA might lose if we refused to let Mr. Jackson testify and he were subpoenaed.
There is some concern that allowing Mr. Jackson to testify in this case would set a
precedent for allowing EPA employees to testify in the future. However, as noted above, we
believe that this case presents the unusual situation where EPA's documents do not "speak for
themselves". In a situation where EPA feels that its documents adequately represent the
Agency's position, testimony by an EPA employee would not be necessary to explain them, and
thus, providing such testimony would not be in the interests of EPA. In this instance however,
Mr. Jackson's testimony is needed to explain EPA's documents. BB&L claims that the work it
performed was adequate and met any relevant standards of care primarily based on statements in
EPA documents. BB&L alleges that EPA's documents support the fact that any changes or
modifications in the design of the remedy were taken at the behest of EPA. The City, on the
other hand, contends that Mr. Jackson's testimony is essential to clarify such EPA documents to
show, in fact, that he was aware of BB&L's design inadequacies and that any approvals or
changes to the remedial design were done in an effort to allow BB&L's design flaws to show
themselves. We agree in this instance that EPA's documents are not self-explanatory with respect
to the crucial issues in dispute in this case, and therefore, Mr. Jackson's testimony is necessary to
provide clarification.
Attachment
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* ^ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
i - . \ REGION 4
\W,
° ATLANTA FEDERAL CENTER
VTfr 100 ALABAMA STREET, S.W.
ATLANTA, GEORGIA 30303-3104
3^
m i 2
4EAD
VIA FACSIMILE
Mark Farrow
General Counsel
Commonwealth of Kentucky
Department of Agriculture
7th Floor, 500 Mero Street
Frankfort, Kentucky 40601
SUBJ: Vinson and Anderson v. Department of Agriculture, et al.
Request for Testimony, Mr. Carlton Layne
Dear Mr. Farrow
The purpose of this letter is to respond to your request for
testimony in the above matter. In your March 7, 1997 letter, you
indicated you would like Mr. Carlton Layne of the United States
Environmental Protection Agency (EPA) to provide testimony
essential for the Commonwealth of Kentucky in this matter.
Specifically, you indicated that you anticipate that
Mr. Layne would provide testimony concerning the authenticity and
accuracy of a report, dated April of 1993 from Mr. Andy Wilson to
Mr. Carlton Layne concerning an EPA investigation of the Kentucky
pesticide program. In addition, you indicated Mr. Layne would
testify as to the results of EPA's investigation and that
Kentucky is in compliance with the Cooperative Agreement. You
also noted that it is your belief that this testimony would be in
the best interest of EPA because EPA has an interest in
authenticating its reports; refuting allegations of a lack of
thoroughness in its investigation; refuting allegations that it
is not properly overseeing the conduct of a state agency under
its jurisdiction; and refuting allegations that EPA officials
were offered favors to taint their report.
EPA regulations at 40 C.F.R. Part 2, Subpart C, contain
restrictions of EPA employees testifying regarding official
matters in any proceeding in which the United States Government
is not a party. The purpose of the 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
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2
procedures for approving testimony or production of
documents when clearly in the interests of EPA.
40 C.F.R. § 2.401 (c) .
Under 40 C.F.R. § 2.401 (a)(3), these regulations apply to,
among other matters, " [s]tate and local legislative and
administrative proceedings." Under 40 C.F.R. § 2.402(a), "[w]ith
the approval of the . . . Regional Administrator, or his
designee, EPA employees . . . may testify at the request of
another Federal agency, or, where it is in the interests of EPA,
at the request of a State or local government. ..." The
concern surrounding the interests of EPA is extremely important
to EPA because most EPA studies, inspections, regulatory actions
and similar activities deal with matters which may, and
frequently do, give rise to private and State litigation.
Although providing a witness for a few hours in a particular
matter might not significantly impede our mission, the cumulative
effect of such interruptions would be very serious. This concern
is the basis of our "interests of EPA" standard for approving EPA
employees' testimony.
Under the circumstances of this case, I have determined that
allowing Mr. Layne to furnish the testimony you require, in
response to your request, would not be in the interests of EPA.
I have concluded that Mr. Layne's production of volunteer
testimony would not contribute to EPA's mission and would
constitute an improper diversion of EPA resources. As an
alternative, pursuant to 40 C.F.R. § 2.406, EPA is offering to
authenticate its April 1993 report for purposes of admissibility
under 28 U.S.C. § 1733 and Rule 44 of the Federal Rules of Civil
Procedure.
If you havp any questions regarding this letter, please.
contact Ms. Lynda C. Crum ~ . . _ . 3na^ Counsel at
(404) 562-9524.
John H. Hankinson, Jr.
Regional Administrator
cc: Richard Guarnieri
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
* J2U 5 REGI0N 4 x
| ? ATLANTA FEDERAL CENTER yo A
100 ALABAMA STREET, S.W. >> ^
% pbo^ ATLANTA, GEORGIA 30303-3104
JAN 21 1937
4EAD
Bennett E. Bayer, Esq.
Emerson & Bayer
501 Darby Creek Road, Unit 41
Lexington, Kentucky 40509
SUB J: Vinson and Anderson v. Department of Agriculture, et al.
Request for Testimony, Mr. Andrew Wilson
Dear Mr. Bayer:
The. purpose of this letter is to respond to your request for
testimony in the above matter. In your December 4, 1996 letter,
you indicated you would like Mr. Andy Wilson of the United States
Environmental Protection Agency (EPA) to provide testimony
essential for Mr. Don Vinson and Mr. Charles Anderson in this
matter. In a subsequent telephone conversation with Ms. Lynda
Crum, EPA, you outlined the scope of the anticipated testimony of
Mr. Wilson.
Specifically, you indicated that you anticipate that
Mr. Wilson would provide testimony concerning a report he
prepared for the Kentucky Department of Agriculture, the
capabilities and performance of Mr. Vincent and Mr. Anderson as
former supervisors for the Kentucky Department of Agriculture and
the efficacy of the position of pesticide inspector supervisor.
You also noted that it is your belief that this testimony would
further the goals and objectives of the EPA in the Agency's
efforts to oversee the Kentucky Department of Agriculture's
administration of the federally delegated pesticide program.
EPA regulations at 40 C.F.R. Part 2, Subpart C, contain
restrictions of EPA employees testifying regarding official
matters in any proceeding in which the United States Government
is not a party. The purpose of the 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 or
production of documents when clearly in the interests
of EPA.
40 C.F.R. § 2.401(c).
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2
Under 40 C.F.R. § 2.401 (a)(3), these regulations apply to,
among other matters, "[s]tate and local legislative and
administrative proceedings'." Under 40 C.F.R. § 2.402 (a), " [w] ith
the approval of the . . . Regional Administrator, or his
designee, EPA employees . . . may testify at the request of
another Federal agency, or, where it is in the interests of EPA,
at the request of a State or local government. . . ." The
concern surrounding the interests of EPA is extremely important-
to EPA because most EPA studies, inspections, regulatory actions
and similar activities deal with matters which may, and
frequently do, give rise to private and State litigation.
Although providing a witness for a few hours in a particular
matter might not significantly impede our mission, the cumulative
effect of such interruptions would be very serious. This concern
is the basis of our "interests of EPA" standard for approving EPA
employees' testimony.
Under the circumstances of this case, I have determined that
allowing Mr. Wilson to furnish the testimony you require, in
response to your request, would not be in the interests of EPA.
I have concluded that Mr. Wilson's production of volunteer
testimony would not contribute to EPA's mission and would
constitute an improper diversion of EPA resources.
If you have any questions regarding this letter, please
contact Ms. Lynda C. Crum, Associate Regional Counsel at
(404) 562 -9524.
Regional Administrator
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i^k)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
345 COURTLAND street. N.E.
ATLANTA. GEORGIA 30365
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
5V
V-J.
Agueta P. Posner, Esq.
Assistant General Counsel
State of. Florida Department of Environmental Protection
2600 Blair Stone Road
Tallahassee, Florida 32399-2400
SUB J: State of Florida Department of Environmental Regulation
v. Rivers Resources & Recovery, Inc., et al.
Case No. 92-403 CA 01, OGC No. 90-0227C
Dear Ms. Posner:
The purpose of this letter is to respond to your request for
testimony in the above matter. In your May 12, 1994, letter you
indicated that you would like Mr. Carleton Layne of the United
States Environmental Protection Agency (EPA) to provide testimony
essential for presentation of the State of Florida Department of
Environmental Regulation (DEP) RCRA claims. Specifically, Mr.
Layne would provide factual information to support DEP' s
assertion that the metals recovery operation at issue in the
above case was open, notorious and long-term in March, 1986. You
indicated that Mr. Layne would need to be available to provide
this testimony in Florida Circuit Court, at the County Courthouse
of Lake County on May 17, 1994.
Your letter indicated that Mr. Layne would be expected to
testify about what he witnessed when he was on-site in March,
1986. Specifically, Mr. Layne will be required to testify that
he was on the site in question in March, 1986, and that he
witnessed an on-going metals recovery operation, with transformer
cases and other used electrical equipment at the site, as well as
evidence of burning. You further mentioned that Mr. Layne's
testimony is necessary to rebut the Defendant's assertion that
the operator of the metals recovery operation at issue was a
trespasser, and that he, the owner, had no knowledge of the
operation. Mr. Layne's testimony will assist in proving that the
operation was open, notorious, and on-going in March, 1986, and
that many federal agencies were aware of the operation, including
EPA. DEP hopes that this proof will make it more likely that the
owner will be held responsible for the activities which occurred
on his land.
EPA regulations at 40 C.F.R. Part 2, Subpart C, contain
restrictions on EPA employees testifying regarding official
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2
matters in any proceeding in which the United States Government
is not a party. The purpose of the 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
or production of documents when clearly in
the interests of EPA.
40 C.F.R. § 2.401 (c).
At the request of other Federal agencies or, where it is in
the interests of EPA, at the request of State or local
governments, EPA employees may provide voluntary testimony, with
approval of the Regional Administrator. 40 C.F.R. S 2.402(a).
The concern surrounding the "interests" of EPA is extremely
important to EPA because most EPA studies, inspections,
regulatory actions and similar activities deal with matters which
may, and frequently do, give rise to private and State
litigation. Although providing a witness for a few hours in a
particular matter might not significantly impede our mission, the
cumulative effect of such interruptions would be very serious.
This concern is the basis for our "interests of EPA" standard for
approving EPA employees' testimony.
Under the circumstances of this case, I have determined that
allowing Mr. Layne to furnish the testimony you require, in
response to your request, would be in the interests of EPA. I
have concluded that Mr. Layne's production of voluntary testimony
would contribute to EPA's mission and would not constitute an
improper diversion of EPA resources.
If you have any questions regarding this letter, please
contact Joan L. Redleaf, Assistant Regional Counsel, at (404)
347-2641, Ext. 2158.
Sincerely,
John H. Hankinson, Jr.
Regional Administrator
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