Ethanol Producers Field EPA 114 Information Requests

By Todd Palmer and Anna Wildeman | April 11, 2012

In the past several months, EPA has issued Clean Air Act Section 114 Information Requests to numerous ethanol production facilities across the country, seeking information concerning all aspects of their operations. These requests generally seek historic performance and specification data for different processes, including scrubbers, thermal oxidizers, boilers, dryers, flares, storage tanks and loadout equipment. Some requests appear to highlight venting of pressure relief valves and header connections on certain processes. Due to the nature of these requests and EPA’s broad enforcement authority, it is essential that these requests be taken seriously and that facilities respond to the agency’s requests in a timely fashion. Failure to do so can result in fines up to $37,500 per day of violation.

In issuing a Section 114 Information Request, EPA may be trying to develop a regulatory scheme for an industry, pursuing enforcement action against a particular company for violations of the Clean Air Act, or simply trying to understand how an industry handles some operational or technical issue. Regardless of the agency’s intended use of the information it collects, companies receiving a Section 114 Information Request are advised to seek legal counsel prior to responding.

Section 114 of the Clean Air Act provides EPA broad authority to request information from any person who owns or operates an emission source, who manufactures emission control or process equipment, or any other person the agency believes can assist in achieving its regulatory or enforcement objectives. Section 114 also authorizes EPA to require the recipient to audit processes, install emission monitoring equipment or perform stack testing. EPA has similar authority to request information pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act and the Resource Conservation and Recovery Act. 

The agency has been known to ask for information on numerous topics. The range of topics is often dictated by the agency’s intended use of the information. For example, if the agency is seeking to pursue enforcement action, a Section 114 Information Request may ask for specific information about a facility’s operational history, recent equipment installations and emission monitoring data. Although addressed to one facility, such requests are often issued on an industry-wide basis, indicating EPA has targeted that industry for a regional or national “enforcement initiative” on a particular regulatory topic. On the other hand, if the agency is seeking to develop a regulatory scheme, a request may be geared toward manufacturers or suppliers of equipment for a particular industry, and may ask for information about the type, size and operational needs of an industry’s standard equipment and process lines. Importantly, EPA has been known to use information from manufacturers or suppliers—including the names of facilities at which certain equipment has been purchased or installed—to assist in enforcement initiatives. 

Section 114 Information Requests often require the recipient to gather and produce information and data that can be years, and sometimes decades, old. All such requests will include detailed instructions for how requested information is to be organized and produced and what, if any, additional narrative explanation is required by the agency to provide context for the data it is receiving. EPA requires that a response be certified by an individual as true and complete. It is essential to remember that, unless it is deemed confidential business information (CBI), everything submitted to EPA becomes subject to Freedom of Information Act requests by the public. Although a person can request certain information be treated as CBI, such a request must be properly substantiated. As such, any information gathered for submittal to EPA must be carefully reviewed to ensure that submittal to the public agency will not waive any other confidentiality, such as attorney-client privilege or work-product. 

Aside from data gathering, Section 114 also authorizes EPA to perform on-site facility inspections after receiving consent from the owner or a warrant from a court. Note that many ethanol facilities have been issued Title V air permits that effectively grant EPA consent. EPA inspectors may refuse to undergo site-specific safety training prior to the inspection and could consider such demands as a denial of access to the facility.

Authors: Todd Palmer,
Attorney, Michael Best & Friedrich LLP
(608) 283-4432
tepalmer@michaelbest.com
 
Anna Wildeman
Attorney, Michael Best & Friedrich LLP
(608) 283-0109
ajwildeman@michaelbest.com