United States v. Zook

• Court: United States District Courts. 10th Circuit. United States District Court of Colorado
• Citation: 569 F.Supp.3d 1101
• Docket Number: Civil Action No. 21-cv-01077-RM
• Parties: UNITED STATES of America, Petitioner, v. David ZOOK, Respondent.
• Decision Date: 28 October 2021

569 F.Supp.3d 1101

UNITED STATES of America, Petitioner,
v.
David ZOOK, Respondent.

Civil Action No. 21-cv-01077-RM

United States District Court, D. Colorado.

Signed October 28, 2021

569 F.Supp.3d 1105

Lila Marie Bateman, U.S. Attorney's Office, Denver, CO, for Petitioner.

David Zook, Colorado Springs, CO, Pro Se.

ORDER ON PETITION

RAYMOND P. MOORE, United States District Judge

This matter is before the Court on the Petition for Order Enforcing Toxic Substances Control Act Subpoena ("Petition") (ECF No. 1) of Petitioner United States, acting on behalf of the Regional Administrator for the United States Environmental Protection Agency ("the EPA") and Respondent David Zook's Motion to Quash (ECF No. 11). The Petition is fully briefed by the EPA and Respondent Zook. Upon consideration of the Petition and the applicable rules and case law, and being otherwise fully advised, the Court finds and orders as follows.

I. BACKGROUND

At issue here is the EPA's petition for this Court to issue an order directing Respondent Zook to comply with the EPA's administrative subpoena seeking information regarding his compliance with the Disclosure of Known Lead-Based Paint and/or Lead-Based Hazards Upon Sale or Lease of Residential Property, (the "Lead Disclosure Rule"), a provision of the Toxic Substances Control Act, 15 U.S.C. §§ 2601 - 2697 ; 42 U.S.C. § 4852d.

In December of 2019 the EPA received a complaint from a former tenant of a multi-unit rental property, built in 1891, and located at 806 E. Boulder Street in Colorado Springs, Colorado, (the "Boulder Street Property"), indicating that the property was in disrepair and specifically that the exterior paint was chipping off the building and falling to the ground. According to property and business records obtained by the EPA, Respondent Zook had formed an LLC to which he had transferred ownership of the Boulder Street Property.¹ The EPA therefore mailed an

569 F.Supp.3d 1106

Information Request Letter to Respondent Zook in his capacity as the Landlord and owner of the Boulder Street Property. Respondent Zook did not respond to the EPA's letter. In February of 2020, the EPA corresponded with Respondent Zook by email, at which time he questioned the EPA's authority to make such a request for information.

The EPA responded to Respondent Zook with citations to its statutory and regulatory authority to request such information and granted him an extension of time to respond to the request for information until late March 2020. Respondent Zook responded again by questioning the EPA's authority to make such a request. The EPA again responded with citations to authority and provided Respondent Zook with an additional extension of time to respond until mid-April. Respondent Zook failed to respond to the communications from the EPA or to provide the requested information.

At that point, on May 27, 2020, the EPA issued a subpoena pursuant to the Toxic Substances Control Act, served by certified mail, requiring Respondent Zook to submit the requested documents within 30 days of receipt of the subpoena. On July 8, 2020, the EPA sent a copy of the subpoena to Respondent Zook via email. Respondent Zook again declined to provide the requested information, responding only that the EPA should provide the "proper predicate for [this] use of government resources." The EPA again sent Respondent Zook information regarding the Lead Disclosure Rule and its regulatory requirements. Having again received no response from Respondent Zook, the Department of Justice made an attempt to contact him in September of 2020 to inquire about the status of his subpoena response.

Having received no response from Respondent Zook to its repeated requests, the EPA filed this petition for an order enforcing the subpoena in April of 2021. This Court issued an Order to Show Cause why Respondent Zook should not be compelled to comply with the EPA's subpoena. (ECF No. 6.) Respondent Zook filed a Response to Order to Show Cause and Motion to Quash Subpoena pro se. (ECF No. 11.)

II. DISCUSSION

A. The Petition

In its Petition, the EPA argues the subpoenas should be judicially enforced under the standards set forth in United States v. Morton Salt Co. , 338 U.S. 632, 70 S.Ct. 357, 94 L.Ed. 401 (1950) and McLane v. EEOC , ––– U.S. ––––, 137 S.Ct. 1159, 197 L.Ed.2d 500 (2017). Under Morton Salt an administrative subpoena "is sufficient if the inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant." 338 U.S. at 652, 70 S.Ct. 357 ; see also Donovan v. Lone Steer, Inc. , 464 U.S. 408, 415, 104 S.Ct. 769, 78 L.Ed.2d 567 (1984), (noting that the "constitutional requirements for administrative subpoenas" are " ‘that the subpoena be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome’ ") (quoting See v. City of Seattle , 387 U.S. 541, 544, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967) ); Becker v. Kroll , 494 F.3d 904, 916 (10th Cir. 2007) (stating that "[t]he Fourth Amendment requires only

569 F.Supp.3d 1107

that an [administrative] subpoena" meets these standards, citing City of Seattle ).

In response, Respondent Zook asserts that the EPA "has here embarked upon a colossal, wasteful and misguided abuse of power." Specifically, Respondent Zook argues that (1) the EPA lacks reasonable suspicion that he violated the Lead Disclosure rule because it began its inquiry as a result of false information provided by an angry former tenant who, he claims, made an unreliable complaint; (2) the EPA lacks the power to issue a subpoena specifically pursuant to the Toxic Substances Control Act; (3) the subpoena fails to meet the Morton Salt requirements because it is not reasonably relevant, too indefinite, and unduly burdensome; and (4) that the subpoena violates his rights under the Fifth Amendment because the EPA is threatening to impose civil penalties for failure to comply. Respondent Zook also requests an award of his attorney fees.

B. Reasonable Basis

Respondent Zook's first argument is that the anonymous complaint filed with the EPA could not give rise to "even a reasonable suspicion that any requirement of [the Toxic Substances Control Act], Lead Disclosure Rule, was being violated." He contends that the unit occupied by the person he believes to have filed the complaint² was an efficiency, and thus a 0-bedroom dwelling which is not subject to the Lead Disclosure Rule. See 15 U.S.C. § 2681 (defining "Target housing" that is subject to the Lead Disclosure Rule); 40 C.F.R. § 745.103 (same). He also asserts that chipped paint is not addressed by the Lead Disclosure Rule.

As an initial matter, the Court notes that Respondent Zook is incorrect that the Lead Disclosure Rule does not address chipped paint. In fact, the Toxic Substances Control Act specifically defines "Lead-based paint hazard" to include "lead contaminated paint that is deteriorated," and "Deteriorated paint" to include "any interior or exterior paint that is peeling, chipping, chalking or cracking or any paint located on an interior or exterior surface or fixture that is damaged or deteriorated." 15 U.S.C. §§ 2681(3), (10).

In any event, Respondent Zook misapprehends what is required to support the issuance of an administrative subpoena. The Supreme Court long ago concluded that, if Congress so authorizes, an administrative agency can use its subpoena power in order to determine the extent to which a regulation applies in a given case. Oklahoma Press Pub. Co. v. Walling , 327 U.S. 186, 214, 66 S.Ct. 494, 90 L.Ed. 614 (1946) ; see also E.E.O.C. v. Peat, Marwick, Mitchell and Co. , 775 F.2d 928, 930 (8th Cir. 1985) (noting that "[t]he authority to investigate violations includes the authority to investigate coverage under the statute"). "It is enough that the investigation be for a lawfully authorized purpose, within the power of Congress to command.... [A]nd the documents sought are relevant to the inquiry." Oklahoma Press Pub. , 327 U.S. at 209, 66 S.Ct. 494. Congress can authorize an agency, such as the EPA, to investigate "merely on suspicion that the law is being violated, or even just because it wants assurance that it is not." Morton Salt Co. , 338 U.S. at 642-43, 70 S.Ct. 357.

Thus, as long as it is lawfully authorized by Congress, and the information sought is relevant to that legitimate investigation, the EPA is authorized to issue a

569 F.Supp.3d 1108

subpoena even without meeting a particular threshold of suspicion. The fact, therefore, that the person Respondent Zook believes to have complained might have lived in a unit not covered by the Lead Disclosure Rule is not dispositive here. The Toxic Substances Control Act specifically defines "Target housing," for the purposes of the Lead Disclosure Rule, as "any housing constructed prior to 1978, except housing for the elderly or persons with disabilities or any 0-bedroom dwelling (unless any child who is less than 6 years of age resides or is...