Environmental Enterprises, Inc. v. USEPA, Misc. No. 87-228.

• Decision Date: 10 July 1987
• Docket Number: Misc. No. 87-228.
• Citation: 664 F. Supp. 585
• Parties: ENVIRONMENTAL ENTERPRISES, INC., Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendants.
• Court: U.S. District Court — District of Columbia

664 F. Supp. 585

ENVIRONMENTAL ENTERPRISES, INC., Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendants.

Misc. No. 87-228.

United States District Court, District of Columbia.

July 10, 1987.

Virginia Hopkins, Taft, Stettinius & Hollister, Washington, D.C., for plaintiff.

Stephen L. Samuels, U.S. Dept. of Justice, Land & Natural Resources Div., Washington, D.C., for defendants.

ORDER

SPORKIN, District Judge.

The Environmental Protection Agency ("EPA") moves to quash two subpoenas issued by the Superior Court for the District of Columbia. The case was properly removed to this Court pursuant to 28 U.S.C. § 1442, without objection from the plaintiff. The two subpoenas order testimony and the production of documents in connection with a civil action pending in the Court of Common Pleas of Hamilton County, Ohio, captioned State of Ohio v. Environmental Enterprises, Inc., No. A8701386. The defendant in that action ("EEI"), the party which got the Superior Court subpoenas, seeks to discover information concerning an ongoing EPA investigation.

Specifically, the EPA is presently in the process of determining whether to "authorize" an Ohio program under section 3006 of the Resource Conservation and Recovery Act, 42 U.S.C. § 6926; if authorized, the program would operate in place of the federal hazardous waste program. The Ohio defendant's theory seems to be that if the EPA is not going to "authorize" the Ohio program, it can use this information as part of its defense in the Ohio action. The EPA contests this theory. Nonetheless, the parties do agree that the documents and testimony sought by the subpoenas concern an ongoing EPA determination.

The EPA therefore seeks to quash the subpoenas on the grounds that the information sought is protected by the deliberative process privilege, and that testimony would probe the mental processes of the agency's decisionmakers. The EPA also argues that the subpoenas must be quashed because they do not comply with internal EPA regulations concerning state court subpoenas, authorized by 5 U.S.C. § 301 and codified at 40 C.F.R. Part 2, Subpart C (1986). Finally, the EPA contends that it is not subject to a subpoena issued by a state or local court, with respect to actions to which it is not a party, in the absence of a waiver of sovereign immunity.

Each of the EPA's arguments has merit and therefore the subpoenas must be quashed. As to sovereign immunity, there is obvious merit to the argument that federal officers should not be subpoenaed to testify in state courts proceedings of which they are not parties without their approval.¹ Second, the internal EPA rules are established to serve important purposes² and the party seeking information from the agency should respect the agency's determination that, as in this case, the subpoenaed EPA employees cannot testify or produce documents as requested. Finally, the documents sought in this case are clearly part of an on-going EPA determination and thus are entitled to protection.

I understand the difficult position the EEI finds itself in, believing it could benefit from the information contained in the EPA's files. Accordingly, I believe it is part of an agency's function to do what it can — while remaining impartial — to comply with state court processes...