C.F.R. » Title 40 » CHAPTER I—ENVIRONMENTAL PROTECTION AGENCY › SUBCHAPTER A—GENERAL › PART 2—PUBLIC INFORMATION › Subpart C—Testimony by Employees and Production of Documents in Civil Legal Proceedings Where the United States Is Not a Party

40 C.F.R. § 2.401

Scope and purpose

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This subpart sets forth procedures to be followed when an EPA employee is requested or subpoenaed to provide testimony concerning information acquired in the course of performing official duties or because of the employee's official status. (In such cases, employees must state for the record that their testimony does not necessarily represent the official position of EPA. If they are called to state the official position of EPA, they should ascertain that position before appearing.) These procedures also apply to subpoenas duces tecum for any document in the possession of EPA and to requests for certification of copies of documents.

(a) These procedures apply to:

(1) State court proceedings (including grand jury proceedings);

(2) Federal civil proceedings, except where the United States, EPA or another Federal agency is a party; and

(3) State and local legislative and administrative proceedings.

(b) These procedures do not apply:

(1) To matters which are not related to EPA;

(2) To Congressional requests or subpoenas for testimony or documents;

(3) Where employees provide expert witness services as approved outside activities in accordance with 40 CFR part 3, subpart E (in such cases, employees must state for the record that the testimony represents their own views and does not necessarily represent the official position of EPA);

(4) Where employees voluntarily testify as private citizens with respect to environmental matters (in such cases, employees must state for the record that the testimony represents their own views and does not necessarily represent the official position of EPA).

(c) The purpose of this subpart is to ensure that employees' official time is used only for official purposes, to maintain the impartiality of EPA among private litigants, to ensure that public funds are not used for private purposes and to establish procedures for approving testimony or production of documents when clearly in the interests of EPA.

Notes of Decisions
Cited in 13 cases (2 in the last 5 years), 1987–2022 · leading case: Bobreski v. U.S. Environmental Protection Agency
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Bobreski v. U.S. Environmental Protection Agency (2003) dcd · cites it 4× “” 40 C.F.R. § 2.401 . The stated purpose of the regulations is to ensure that employees’ official time is used only for official purposes, to maintain the impartiality of EPA among private litigants, to ensure that public funds are not used for private purposes and to establish…”
Andrea Smith Gregory Welsh Larry Hornstein v. James Cromer (1998) ca4 “” 40 C.F.R. § 2.401 . The district court conducted a hearing, and enforced the subpoenas based upon findings that the information sought was not privileged, that Downie was in the best position to provide the information “which was essential to the fair administration of justice…”
Boron Oil Co. v. Downie (1989) ca4 · cites it 2× “The EPA also argues that the subpoenaes must be quashed because they do not comply with the internal EPA regulations concerning state court subpoe-naes, authorized by 5 U.”
Davis Enterprises v. United States Environmental Protection Agency (1989) ca3 · cites it 6× “In denying the request, the EPA’s Regional Counsel (Region III) Bruce Diamond, referring to the applicable EPA regulations governing such requests, 40 C.F.R. § 2.401 et seq. (1988), advised Appellants that he had determined that allowing the testimony was not clearly in the…”
Grine v. Coombs (2003) pawd “Zenone without first complying with the regulations set forth at 40 C.F.R. § 2.401 , which address situations where the deposition of an EPA agent is sought for use in connection with litigation involving only private parties.”
Environmental Enterprises, Inc. v. United States Environmental Protection Agency (1987) dcd “…(4) to establish procedures for approving testimony or production of documents when clearly in the interests of EPA. 40 C.F.R. § 2.401 (c).”
Orange Environment, Inc. v. County of Orange (1992) nysd · cites it 2× “40 C.F.R. § 2.401 (c). In rejecting plaintiff’s request that Mr.”
In re Issuance of Order Requiring the United States Environmental Protection Agency (1987) ca1 · cites it 2× “Sun’s bedrock position is that, by adopting regulations governing the extent to which agency employees may testify in private litigation, see 40 C.F.R. §§ 2.401 et seq., EPA has constrained agency discretion in such a way as to make exercises of it judicially reviewable.”
United States v. SCA Services of Indiana, Inc. (1993) innd · cites it 2× “At that time, the court also directed the government to file a response as to whether the government was willing to unconditionally waive the rights it had to refuse discovery as a non- *145 party under 40 CFR § 2.401 , et seq. The United States filed its response on June 11,…”
Bluestone Environmental Group, Inc. v. Zapisek (2022) mad · cites it 2× “” 40 C.F.R. § 2.401 . To obtain voluntary testimony, a party must submit a written request describing the nature of the testimony and the reasons why the testimony would be in the interests of EPA.”
Rodriguez v. Soto-Valentin (2022) prd “See 40 C.F.R. §§ 2.401 – 2.406. In this case, the EPA has stated that compliance with the Subpoena is not “clearly” in its interests.”
Wolfeboro v. Wright-Pierce (2014) nhd “2d at 70 ; see also 40 C.F.R. § 2.401 (c). In this case, the EPA is not a party.”
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