The Nickel Report

Responding to an EPA collection request can be costly, time consuming and stressful for the target of the request—especially because failure to submit a timely and accurate response can result in significant civil or criminal penalties. On November 21, EPA’s Office of Water (OW) and Office of Civil Enforcement (OCE) issued new policies that, if followed, promise to make the process more reasoned and less burdensome.

Environmental laws, such as § 308 of the Clean Water Act (CWA), 33 U.S.C. § 1318, give EPA broad authority to extract from members of the regulated community information that it needs to assess emissions and discharges, set limits and standards, and assess and enforce compliance, subject only to often-subjective rules of reason. Although the Paperwork Reduction Act, 44 U.S.C. §§ 3501 et seq., (PRA) requires approval by OMB’s Office of Information and Regulatory Affairs (OIRA) for large-scale information collection requests, the PRA does not apply to information requests for purposes of investigating or enforcing violations, nor does it apply unless identical information is sought from more than 9 “persons.” Given the PRA’s broad definition of “person” (which includes corporations, partnerships, associations and any element of state and local government), information collection efforts excluded from OMB review nevertheless may compel huge amounts of information from dozens of individual entities or facilities, requiring hundreds of hours of response time.

OW’s National Water Program Policy on Use of Clean Water Act § 308 Letters Issued to Nine or Fewer Entities to Support CWA Program Implementation establishes internal operating procedures that OW and the Regional Water Divisions will use in developing and approving § 308 letters. By its terms, it applies only to information collection efforts that are not subject to the PRA, specifically excluded from PRA review (i.e., enforcement-related information collection), or involve requests or follow-up on information already required by applicable law (i.e., information required by an NPDES permit).

The OW policy anticipates that EPA will begin any information collection by developing a narrowly tailored “initial scoping” outline along with a list of potential recipients. In developing this outline, the Agency considers existing sources of information, avoids asking for “any” or “all” information without appropriate qualifiers, and considers using phased data collection to avoid overbroad requests. The policy also discourages EPA from requiring respondents to respond using a particular format or means of aggregation and from couching the request in adversarial terms. It also stresses the need to provide sufficient time for response and opportunities to ask questions and request clarifications.

Both the initial scoping outline and any final § 308 letter must be reviewed and approved by senior management. Requests aimed at more than 5 persons require approval from the Principal Deputy Assistant Administrator or Regional Deputy Administrator; those addressed to five or fewer persons must be approved by the appropriate Office Director within OW or the relevant Water Division Director for the Region.

Equally important is the OW policy’s stress on early and continuing engagement with the potential recipients of information requests. The OW policy encourages engagement with potential recipients and others in the regulated community during preparation of the initial scoping outline. Once the relevant senior manager has issued an initial concurrence with that outline, EPA will then provide outline to potential recipients, consider and address their input and pursue collection of the information through informal means short of a formal § 308 letter. If early engagement and informal means of information collection fail, EPA may prepare an initial draft of § 308 to share and discuss with potential recipients. If that further engagement and dialogue on the draft § 308 letter fails, EPA may move forward with obtaining approval from the relevant senior manager to send the § 308 letter.

OCE’s Memorandum on Best Practices for Compliance and Enforcement-Related Information Requests sounds similar themes, albeit with some noteworthy differences. The OCE memorandum is less directive, recommending best practices for consideration by OCE and Regional staff rather than establishing new default procedures. Also, it specifically references two prior guidance documents that remain in effect: the 2017 Interim Guidance on Required Reporting of Compliance Monitoring of Information Requests in ICIS and the 2001 Enhancing the Effectiveness of Information Requests in Regulatory Enforcement Matters.

Like the OW policy, the OCE best practices emphasize the use of informal information collection where practical, while recognizing that formal data collection may avoid confusion and delay in some cases. Like the OW policy, the OCE best practices encourage EPA to determine whether existing sources of information already are available, discourage asking for more information than Agency staff are certain they need and encourage use of phased information collection requests to address uncertainty. Like the OW policy, the OCE best practices encourage EPA staff to consider the context and nature of the recipient in striking the right tone, emphasizing the need for politeness. And like the OW policy, the OCE best practices encourage the use of plain language in framing the request and discourage unduly short time frames for response. The OCE best practices also anticipate that the Agency always will provide a point of contact for questions.

Only time will tell whether these policies and practices improve the information collection process and engender the mutual respect and spirit of cooperation to which the Agency aspires. They appear to be a good start in that direction.