Response to Agency Requests for Information

Federal and state environmental laws often provide environmental agencies with the authority to seek information from parties that are subject to environmental regulations. Federal and state agencies, such as the U. S. Environmental Protection Agency (EPA) and the Minnesota Pollution Control Agency (MPCA), often issue written Requests for Information (RFI) seeking information related to business, plant or equipment operations, including information relating to pollutants that may be discharged to the air or water or shipped to an off-site facility.

An RFI is an information gathering tool utilized by governmental authorities to obtain information about the past activities and operations of a regulated party. An RFI is the equivalent of discovery procedures used in litigation such as Interrogatories and Requests for Production.

An RFI often contains an open-ended set of questions and multiple requests for documents. There is no limit to the number of questions that may be asked or document requests that may be made. In fact, the EPA or a state agency may review the responses to an RFI and then choose to issue one or more additional RFI with another set of follow up requests.

Great care should be taken in responding to an RFI. Regulated parties or RFI recipients should consider retaining competent counsel to discuss how to respond to an RFI.

Federal and state authorities may send an RFI to a third party - another business or individual - seeking information about the conduct of a regulated party who is subject to an ongoing investigation. In these cases, the government authorities issuing the RFI do not have to receive permission from the regulated party.

Depending on the type of information requested, a regulated party may want to explore whether a request should be made to keep the response or a portion thereof confidential. Federal and state environmental laws typically permit businesses to seek confidentiality protection over certain business records or information about manufacturing processes that may be considered to be a trade secret.

In most cases where an RFI is issued, the governmental authority typically has not yet formally initiated an enforcement case. Does a party need to respond? The short answer is speak with your attorney to get advice related to a response. Failure to respond to an RFI may subject a party to administrative, civil or criminal penalties. RFI recipients are often required to certify that there response is a full and complete submission.

At Hessian & McKasy, we routinely assist regulated parties in responding to RFIs.

As was noted above, clients should consider seeking and retaining counsel at this early stage of an investigation. Federal and state authorities may seek to use the information that is provided in response to an RFI as the basis for an enforcement action where penalties and/or corrective actions may be sought. In a subsequent enforcement action the EPA or state agencies, such as the MPCA, may seek to impose penalties for alleged violations of environmental statutes and regulations observe during an inspection, disclosures made in response to an RFI, or alleged noncompliance with the terms of environmental permits.

These materials have been prepared by Joseph G. Maternowski of Hessian & McKasy P.A. for informational purposes only and are not legal advice. Please read the Disclaimer that appears at the bottom of this page.