December 5, 2000

The Honorable Jacob J. Lew
Director
Office of Management and Budget
Executive Office of the President
Eisenhower Executive Office Building, Room 252
Washington, D.C. 20503

Dear Mr. Lew:

   The U.S. Chamber of Commerce ('U.S. Chamber") is the world's largest business federation, representing more than three million businesses of every size, sector, and region. As the principal voice of the American business community, the U.S. Chamber is concerned with efforts by the U.S. Environmental Protection Agency ("EPA" or "the Agency") to demand information from the operators of industrial facilities pursuant to Risk Management Plan ("RMP") requirements of Section 114 of the Clean Air Act ("CAA"). Specifically, EPA sent approximately 400 letters to CAA Title V permit holders and applicants in EPA Region V demanding information regarding RMP compliance. The Agency presented no evidence or allegations of noncompliance on the part of any of the entities receiving the demand letters. Furthermore, EPA issued these letters without complying with the requirements of the Paperwork Reduction Act of 1995 ("PRA").

   To address this abuse of discretion by EPA, the US. Chamber supports two petitions filed by the Center for Regulatory Effectiveness ("CRE") with the Office of Management and Budget ("OMB") on October 16, 2000 to prevent EPA from bypassing PRA requirements. CRE's petitions request that OMB:

• Determine whether the RMP collection of information activities by EPA are properly within the "enforcement exemption" of PRA; and

• Promulgate a rule to define "case file" in OMB's regulations implementing PRA.

A. EPA ignored PRA procedures for collection of information activities.

   Pursuant to PRA, an agency may not conduct "collection of information" unless it has sought and obtained OMB approval, although PRA exempts enforcement activities from this requirement.¹ PRA is vital because it prevents government agencies from harassing businesses by demanding process and facility operation information in search of violations at facilities for which no evidence of noncompliance has been obtained. PRA specifies before an agency may engage in information collection activities, an agency must publish notice in the Federal Register and solicit public comment. Furthermore, an agency must analyze the paperwork burden to citizens or businesses necessary to meet the obligations of an information collection request and describe the need and benefit of the information it seeks to compile. ²

   The U.S. Chamber believes businesses must make every effort to comply with all statutory and regulatory requirements - environmental or otherwise. Businesses also must report all information to EPA and other federal agencies as required by law and regulation. Companies that violate these requirements face severe consequences.

   As businesses must comply with the law, so must government. In the matter of the RMP collection of information activities, however, EPA circumvented PRA. EPA did not inform OMB of its actions, obtain approval or secure an OMB control number, or comply with the burden assessment requirements.

B. Blanket information requests are not enforcement activities.

   EPA maintains the RMP letters were part of enforcement activities and therefore did not require OMB approval prior to being issued. Although PRA authorizes federal agencies such as EPA to collect information from specific firms or persons as part of distinct enforcement investigations, blanket requests of information of businesses or individuals for which no evidence or credible allegations of violations have been raised cannot be considered specific enforcement activities. With respect to the RMP letters, EPA sought information from a broad category of businesses throughout Region V. Therefore, since RMP letters were not sent as part of a specific investigation, this EPA collection of information activity must be considered pursuant to PRA "general investigations" provisions of PRA §3518 (c) (2) requiring EPA to comply with OMB approval requirements.³

   EPA contravened PRA requirements by targeting a broad category of businesses to launch a "fishing expedition" apparently designed to accumulate process-related information from facilities and uncover potential violations in instances where EPA has no evidence of any violations. The RMP letters are onerous because they are time consuming and expensive for businesses to compile, prepare and transmit to the Agency. Yet, if companies fail to comply with EPA's request, the Agency can initiate enforcement action.

C. OMB must stop EPA's abuse of discretion by granting the CRE petitions.

   The Agency must not be permitted to launch enforcement activities against companies when it is EPA that has violated provisions of PRA. Consistent with the CRE petitions, the U.S. Chamber strongly urges OMB to:

• Review EPA's collection of information activities to determine whether these activities are consistent with PRA;

• Require EPA to suspend enforcement-related activities with respect to information obtained from the RMP letters until OMB determines whether EPA should have obtained OMB approval to issue the letters;

• Issue an Information Collection Request, as required by PRA, before any new RMP information is requested; and

• Promulgate a definition of "case file" pursuant to the PRA to ensure that EPA and other federal agencies require businesses to disclose information only when PRA requirements are met.

The U.S. Chamber appreciates this opportunity to share the concerns of the U.S. business community regarding this issue with you.

Sincerely,      William L. Kovacs

End Notes:
1. 44 USC §3507(a), 44 USC §3518(c)(1)
2. 44 USC §3507(a) and (b)
3. 44 USC 53518(c)(2)