Environmental Agency Information Requests: What Businesses Should Do Before Responding

Getting a letter or email from an environmental agency asking for information can be unsettling, particularly if you have never dealt with an environmental regulator before.

The request might come from the California Department of Toxic Substances Control (DTSC), a Regional Water Quality Control Board, CalRecycle, a local environmental health agency, or another regulator. The agency might ask for permits, waste records, sampling results, information about chemicals stored onsite, historical operations, or communications with environmental consultants.

Sometimes the request is routine. Other times, it signals the beginning of a more significant investigation.

The challenge is that you may not know which one you are dealing with when the request first arrives. That makes the initial response important.

Start by Understanding the Request

Not every request from an environmental agency has the same legal significance. An agency employee may send an email asking a few questions or requesting several documents. An inspector may ask to review records during a facility inspection. A formal request may identify specific statutory authority and require a response by a particular date. A Regional Water Board request issued under Water Code section 13267, for example, can require a business or property owner to submit technical or monitoring reports under penalty of perjury.

Before responding, take the time to understand what the agency is asking for, the time period covered by the request, the deadline for responding, and, when applicable, the legal authority for the request. It also helps to understand why the agency is asking. Is it investigating a particular incident? Looking into possible contamination? Following up on an inspection or permit requirement? Trying to determine who operated a property during a particular period?

Those questions can provide important context for the response. They can also reveal issues that deserve attention before the business provides information to the agency.

That does not mean a business can simply ignore a request while it figures things out. Some agency requests carry legal consequences for failing to respond. If the request has a specific statutory basis or deadline, the business needs to address those requirements promptly, even if it needs additional time to gather the information.

Do Not Assume You Need to Send Everything

When a regulator asks for documents, the natural reaction is often to gather everything that seems remotely relevant and send it over. That is not always the best approach.

Start by identifying what the agency actually requested. Determine what records fall within the relevant time period and whether the request concerns a particular environmental issue, property, facility, or operation. A request about one potential release, for example, does not necessarily mean the agency is asking for every environmental record the company has ever created.

The scope of the request may also raise questions that the business should address before producing documents. An agency asking about a former tenant may be trying to understand who operated a facility during a particular period. A request for historical sampling data may reveal that the agency is investigating contamination the current property owner did not cause. A request for waste records may uncover an apparent discrepancy between what the company remembers and what its records show.

The goal is not to withhold responsive information. It is to understand what you are providing and make sure the response accurately addresses the agency’s questions.

Preserve Potentially Relevant Records

Once an agency request arrives, take steps to preserve potentially relevant records. Environmental information often sits in many different places. The facility manager may have current operating records. An environmental consultant may have sampling data and reports. A property manager may have records concerning former tenants. Older documents may sit in archived email accounts, paper files, or storage.

The business needs to know where those records are and make sure they remain available while it evaluates the request.

Preserving records, however, is different from producing them. Preservation means making sure potentially relevant information does not disappear. Production means determining which records actually respond to the agency’s request and how the business should provide them. Keeping those two decisions separate can help prevent an employee from deleting something simply because no one initially thought it was important—or from sending thousands of pages of records without first determining what they contain.

Coordinate Communications With the Agency

It also helps to designate someone to coordinate communications with the regulator. Environmental matters often involve several people who know different parts of the story. An operations manager may know how the facility currently operates. A former employee may know about historical practices. An environmental consultant may understand the sampling data. A property manager may have information about previous tenants.

When several people respond independently, however, the business can unintentionally provide inconsistent or incomplete information. Even small differences in how people describe a facility’s operations or the history of a property can create confusion.

The designated contact does not necessarily need to be an attorney. Depending on the circumstances, it might be an owner, environmental manager, consultant, or other employee. What matters is that someone keeps track of what the agency requested, what the business has provided, what remains outstanding, and who within the organization has information relevant to the response.

Pay Attention to Technical Information

Environmental agencies often request information that requires technical expertise to understand. A request might concern groundwater monitoring results, soil or soil-gas sampling, stormwater discharges, hazardous-waste characterization, waste-management practices, or historical releases.

An environmental consultant can explain what the technical information means. But understanding the data and deciding how the business should respond to the agency are not necessarily the same thing.

For example, a consultant may determine that a chemical concentration exceeds a particular screening level. The business then needs to understand what that result means in the context of the agency’s investigation, the applicable regulatory program, and the questions the agency has asked. The technical answer and the legal answer may not be identical.

That is why coordination between environmental counsel and the technical consultant can be important. The consultant can explain the science and data, while counsel can help evaluate the legal significance of that information and how it should be addressed in the agency response.

When Should You Involve an Environmental Attorney?

Not every agency email requires an attorney. But it makes sense to consider involving environmental counsel early when an agency is investigating a potential violation, asking about contamination or a possible release, requesting a large volume of records, seeking information about historical owners or operators, or issuing a request under specific statutory authority.

The same is true when the agency asks questions that could affect the business’s future investigation or cleanup obligations, or when it requires information to be certified or submitted under penalty of perjury.

An environmental attorney can help determine what the agency is actually asking for, identify applicable deadlines, evaluate the scope of the request, coordinate with technical consultants, review the proposed response, and communicate with the agency when appropriate.

Early involvement can be particularly valuable when the business or property owner did not cause the environmental problem. Environmental investigations often concern activities that occurred years or even decades earlier. A current property owner may receive questions about operations that occurred before it purchased the property. A business may receive a request concerning a former tenant or previous owner. Before the business describes what happened at the site, it helps to understand what the records actually show and what the agency is trying to establish.

What About Attorney-Client Privilege?

Businesses sometimes assume that documents involving their environmental consultant are protected from disclosure simply because the business hired an attorney.

That is not necessarily the case.

Whether a particular communication is protected depends on the circumstances in which it was created, who participated in it, and the purpose of the communication. Simply copying an attorney on an email does not automatically make an otherwise ordinary business or technical communication privileged.

This is another reason to think about the response before circulating a large collection of consultant communications and other records. Counsel can help identify potentially privileged material and determine how privilege issues should be handled without assuming that every environmental document is protected.

Hiring Counsel Does Not Mean Picking a Fight With the Agency

Some businesses hesitate to involve an attorney because they worry that the regulator will view counsel’s involvement as unnecessarily adversarial.

It does not have to work that way.

In many environmental matters, the lawyer’s role is simply to help the business understand what the agency needs and provide an accurate, organized response. Counsel can also help the business communicate effectively with its environmental consultants and distinguish technical questions from legal ones.

Good regulatory representation does not require turning every interaction with an agency into a fight. Often, it means helping the business understand its obligations, respond accurately, and address problems before they become larger ones.

An Information Request Deserves Attention

An agency information request may turn out to be nothing more than a routine part of an inspection or regulatory review. It may also be the first step in a much larger investigation. You may not know which one it is when the first letter or email arrives.

That does not mean a business should panic. It does mean the request deserves attention.

Before responding, understand what the agency is asking for and the authority behind the request. Preserve potentially relevant records and identify the people who have knowledge of the issue. Coordinate with environmental consultants and other technical professionals. And when the request raises questions about compliance, contamination, liability, or potential enforcement, consider having environmental counsel review the situation before the response goes out.

The goal is not to avoid responding to the agency. It is to make sure the business understands its obligations and provides a response that is accurate, complete, and appropriate to the request.

In environmental matters, what happens before the first response can sometimes be just as important as the response itself.