 Continuing Obligations Under Congressional Subpoenas After
                the Adjournment of Congress

W hile congressional com m ittees’ subpoenas are no longer effective after Congress’ adjournm ent sine
   die. the A dm inistrator o f the Environm ental Protection Agency should, in the interest o f com ity
   and accom m odation to the Legislative B ranch, continue to be as responsive as possible to those
   com m ittees’ requests for docum ents and other inform ation.

T he A dm inistrator’s obligations under one of the subpoenas may be construed in light of the
   subcom m ittee ch airm an ’s subsequent m odification on the record o f its term s. Com pliance with the
   subpoena as so m odified cannot form the basis o f the “ willful default” that is necessary for
   prosecution under the relevant crim inal contem pt statutes, 2 U .S .C . §§ 192, 194.

                                                                                December 23, 1982

           MEMORANDUM OPINION FOR THE ADMINISTRATOR,
               ENVIRONMENTAL PROTECTION AGENCY

   This responds to your request for guidance in defining your outstanding
obligations, if any, under the subpoenas served on you on October 21, 1982, by
the Subcommittee on Oversight and Investigations of the House Committee on
Energy and Commerce (Energy and Commerce Subcommittee subpoena), and
on November 22, 1982, by the Subcommittee on Investigations and Oversight of
the House Committee on Public Works and Transportation (Public Works Sub­
committee subpoena).
   The Energy and Commerce Subcommittee subpoena requires you to produce
          copies of all books, records, correspondence, legal and other
          memoranda, papers and documents relative to the Tar Creek,
          Oklahoma; Stringfellow Acid Pits, California; and Berlin and
          Farro, Michigan, hazardous waste sites, excepting shipping rec­
          ords, contractor reports and other technical documents.1
The Public Works Subcommittee subpoena dated November 16, 1982, requires
production of
          all books, records, correspondence, memorandums, papers,
          notes and documents drawn or received by the Administrator and/
          or her representatives since December 11, 1980, including dupli­


  1 Attachment to the Energy and Commerce Subcommittee subpoena, issued Oct 14, 1982.


                                                   814
          cates and excepting shipping papers and other commercial or
          business docum ents, contractor and/or other technical docu­
          ments, for those sites listed as national priorities pursuant to
          Section 105(8)(B) of P.L. 96-510, the “ Comprehensive Environ­
          mental Response, Compensation, and Liability Act of 1980.”

   The Office of Legal Counsel has taken the view that the adjournment sine die at
the conclusion of a particular Congress (in this case, the 97th Congress) causes a
lapse in the effectiveness of subpoenas issued by committees and subcommittees
of that Congress as far as imposing any continuing legal obligations to produce
documents pursuant thereto.* Accordingly, we believe that the adjournment sine
die of the 97th Congress, coupled with the convening of the 98th Congress, will
terminate your legal responsibilities under both subpoenas. However, since both
Subcommittees appear to have continuing interests in the documents embraced
by the subpoenas, and in the interest of comity and accommodation to the needs
of the Legislative Branch, we urge that you nevertheless continue to be as
responsive as possible, within the bounds set forth in the President’s November
30th memorandum to you,2 to the requests of the Energy and Commerce and
Public Works and Transportation Subcommittees.
   With respect to the Energy and Commerce Subcommittee subpoena, we
understand that the Environmental Protection Agency (EPA) has provided to the
Subcommittee staff at the Subcommittee staff offices copies of all documents
which are encompassed by the subpoena, except those which have been deter­
mined to be enforcement sensitive and which are therefore being withheld
pursuant to the President’s November 30, 1982, instruction to you. The withheld
documents were identified by you to the Subcommittee at its hearing on De­
cember 14, 1982. For all documents which are being withheld, you have
provided the Subcommittee with a detailed list describing the contents of each
document, and giving the title, date, the author and addressee, and the bases
upon which the document was determined to be enforcement sensitive. We
understand that, at this time, all documents responsive to the Energy and
Commerce subpoena which have been discovered in the three regional offices
involved or anywhere else within EPA have been forwarded to Washington for
review, and that all but 42 have been turned over to the Subcommittee. The
likelihood that any further discoveries of documents which might have been
inadvertently overlooked in the regional offices is apparently slight and if any are
discovered, it would probably involve a very small number of documents. We
recommend that you continue to forward any newly discovered nonsensitive
documents to the Subcommittee, or, if the document must be withheld pursuant
to the President’s instructions, that you furnish to the Subcommittee a complete
description of the document, including the basis for its nondisclosure in the same

  * N o t e : See memorandum opinion for the Attorney General, Dec. 14, 1982 (Continuing Effect of a C on­
gressional Subpoena Following the Adjournment o f Congress), reprinted in this volume at p. 744, supra. Ed
  2 See also President Reagan’s Nov. 4 ,1 9 8 2 , M emorandum for the Heads of Executive Departments and Agencies
re Procedures Governing Responses to Congressional Requests for Information.


                                                    815
form utilized with respect to the other withheld documents. We suggest that the
transmittal letter also explain why the documents were not discovered prior to the
return date of the subpoena.
   With respect to the Public Works Subcommittee subpoena, Chairman Levitas,
as you know, modified the terms of your compliance with the subpoena at the
December 2, 1982, hearing on hazardous waste contamination at which you
testified. He did so explicitly, stating that
           there is absolutely no need for the Environmental Protection
           Agency to reproduce any documents which are otherwise avail­
           able to the subcommittee staff.3
                         *               *               *                *               *

              As far as the documents that you have brought with you today,
           insofar as the committee is concerned they are not fully respon­
           sive to the subpoena of the committee. Under the circumstances I
           would suggest that they be held in abeyance until the matter is
           resolved one way or the other, and that they be maintained in your
           custody until that time.4
Chairman Levitas’ statement was made in response to your testimony that the
actual, physical production of all documents encompassed by the subpoena in the
Subcommittee’s offices “ would require the location, segregation, duplication,
photocopying and shipping of more than 787,000 pages of documents . . .,”5
“ could [not] be completed [until] between February 15th and March 1st, and
would cost approximately $245,000.” 6 In addition, you pointed out that produc­
ing all of these documents on a “ rush” basis would require “ the virtual halt of
some segments of [EPA’s] enforcement programs for several weeks.”7
   Notwithstanding the various deficiencies in the Public Works Subcommittee
subpoena, without suggesting that it would have any continuing validity after the
98th Congress convenes, and without suggesting that the arguably relevant
criminal contempt statutes, 2 U .S.C . §§ 192, 194, are applicable to the current
situation, you have asked whether, absent those and other potential defenses, you
could be held responsible for compliance with its literal demands in light of
C hairm an Levitas’ apparent m odification of his expectations regarding the
subpoena.

   3 Transcript, Hearing on Hazardous Waste Contamination of Water Resources Before the Subcomm. on Inves­
tigations and Oversight of the House Committee on Public Works and Transportation, Dec 2, 1982, p. 123, lines
2902-04.
   In addition, several other members of the Subcommittee also indicated that they were not interested in your
producing copies of documents which they already have available to them in the regional and headquarters offices.
See. e g .. Transcript, at p. 67, lines 1573-82; p. 77, lines 1821-25; p 97, lines 2281-86; p. 99, lines 2334-39; p.
119, lines 2801-03.
   4 Id. at 135, lines 3192-98.
   5 Id. at 5 5 -5 6 , lines 1301-03.
   6 Id. at lines 1316-18. These figures reflect computations based on work performed on a “ rush” basis, with the
use of contractors, overtime, and the reassignment of resources and personnel within the Agency. Performance of
the work on a non-“rush” basis would take m ore than 10,000 hours o f staff time, cost roughly $145,000, and could
probably be completed between May 15th an d June 15th.
   7 Id. at lines 1318-19.


                                                       816
   Decisions of the Supreme Court and the courts of appeals construing 2 U.S.C.
§ 1928 have uniformly held that a congressional request for testimony or the
production of documents by a witness which is suspended, delayed, or aban­
doned by a Subcommittee member in colloquy with the witness, and is not later
renewed by the Subcommittee, cannot form the basis of the “ willful default” that
is necessary for a lawful prosecution under § 192. See Flaxer v. United States,
358 U.S. 147 (1958).9 See also Emspak v. United States, 349 U.S. 190(1955);
Quinn v. United States, 349 U.S. 155 (1955); M iller v. U nitedStates, 259 F. 2d
187 (D.C. Cir. 1958).
   We conclude that, when considered in light of the facts that the Subcommittee
apparently was not interested in any of the documents if it was not to receive all of
them ,10the provision of the statute which requires a violation to be willful, and in
light of the cases discussed above, Chairman Levitas’ modification on the record
of the terms of your compliance with the subpoena issued by his Subcommittee is
sufficient to support a construction of your obligation that, without taking into
account other defenses, requires only that you make the requested documents
available in the EPA offices where the documents generally are maintained.
However, in keeping with the three-tiered screening procedure that you have
developed to ensure that career and policy level attorneys in the Environmental
Protection Agency, the Land and Natural Resources Division of the Department
of Justice and the Office of Legal Counsel of the Department of Justice review all
documents which are withheld as enforcement sensitive, we would recommend

    8 2 U.S.C. § 192 provides.
             Every person who having been summoned as a witness by the authonty of either House of
         Congress to give testimony or to produce papers upon any matter under inquiry before either House,
         or any joint committee established by a joint or concurrent resolution of the two Houses of Congress,
         or any committee of either House of Congress, willfully makes default, or who, having appeared,
         refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a
         misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a
         common jail for not less than one month nor more than twelve months
    9 The facts of Flaxer v United States, supra, are very similar to the circumstances raised by Chairman Levitas’
modification o f the Public Works Subcommittee’s subpoena. In Flaxer, supra, the president of a labor union was
subpoenaed to appear before a Senate subcommittee on October 5 ,1 9 5 1 , and to bring with him certain documents
He appeared, but did not bring all of the requested documents, apparently because of insufficient time to gather them
all The Senator who chaired the hearing, after colloquy with the witness, said, “ Since you have made the reply that
it could be done in a week, that will be the order of the committee, that you submit that information as requested by
counsel for the committee within 10 days from this date.” 358 U.S at 149-50. The Court held that the witness could
not thereafter be prosecuted under 2 U.S C. § 192 for willful default because he was not clearly apprised that the
subcommittee continued to require the documents on the return date of the subpoena rather than at the later date. The
Court stated.
             In the present case, the position of the Committee was clear in one respect: it was plain it wanted
         the [documentsl But, to say the least, there was ambiguity in its ruling on the time of performance.
         The witness could well conclude, we think, that he had 10 days more to consider the matter, 10 days
         to face the alternative of compliance as against contempt. Certainly we cannot say that petitioner
         could tell with a reasonable degree of certainty that the Committee demanded the [documents] this
          very day, not 10 days hence.
Id. at 151. The Court then reiterated its language in Quinn v. United States, 349 U.S. at 170:
             Giving a witness a fairapprisal of the committee's ruling on an objection recognizes the legitimate
          interests o f both the witness and the committee Just as the witness need not use any particular form
         o f words to present his objection, so also the committee is not required to resort to any fixed verbal
          formula to indicate its disposition of the objection. So long as the witness is not forced to guess the
         com m ittee’s ruling, he has no cause to complain. And adherence to this traditional practice can
         neither inflict hardship upon the committee nor abridge the proper scope of legislative investigation
358 U.S at 151-52.
    10 Transcript, at 135, lines 3192-98

                                                       817
that you continue your policy of having copies of documents which are deter­
mined by your regional staff potentially to be in the enforcement sensitive
category shipped from the regional offices to Washington so that further review
may take place. Once a determination has been made to withhold any documents
pursuant to the President’s instruction, you should continue to provide the
Subcommittee, as you have in the past, with a list of such documents, describing
their contents and explaining the bases for nondisclosure.
   In order to avoid any misunderstanding relative to your further obligations
under the Public Works Subcommittee subpoena, and to confirm our interpreta­
tion of your remaining responsibilities, I suggest that you send letters in the
attached form to Chairmen Levitas and Dingell. This will give each of them an
opportunity to ascertain your intentions with respect to the documents sought by
the subpoenas and to make any further comments they may deem appropriate.

                                                L a r r y L . S im m s
                                       Deputy Assistant Attorney General
                                            Office c f Legal Counsel
Attachment




                                      818
Honorable John Dingell
Chairman
Subcommittee on Oversight and Investigations
Committee on Energy and Commerce
United States House of Representatives
Washington, D.C. 20515


D e a r C h a ir m a n D in g e l l :
    In an effort to cooperate as fully as possible with your Subcommittee in
connection with the subpoena served on me by your Subcommittee on October
21, 1982, and with due regard for my responsibility to carry out the President’s
November 30 instruction to me “ not to furnish copies of [sensitive documents
found in open law enforcement files] to the Subcommittee[ ]” but to “ remain
willing to meet with [the] Subcommittee to provide such information as [I] can,”
and notwithstanding your Subcommittee’s vote on December 14, 1982, to find
me in contempt of Congress for complying with the President’s instructions, I
wish to set forth the intentions of the Environmental Protection Agency with
respect to the documents sought by your Subcommittee under the October 21
subpoena, and to provide you with an opportunity to clarify, if you deem it
appropriate to do so, the position of your Subcommittee in this regard.
    I   believe at this time that we have furnished all documents relating to the
Stringfellow Acid Pits, Tar Creek, and Berlin and Farro sites which are respon­
sive to your subpoena, except for the 42 documents which, having been deter­
mined to be enforcement sensitive in the manner described to you on December
 14, 1982, are being withheld pursuant to the President’s November 30, 1982,
instructions to me. For those documents withheld from your review, we have
provided you with a description of the contents of the documents, the name and
title of the author and the addressee, the date, the number of pages, and an
explanation of why we believe that the document is enforcement sensitive.
    Should any further documents relating to the three sites encompassed by your
subpoena be found in our headquarters or regional office files, we will forward
the documents to you, or, upon a determination that the documents are enforce­
ment sensitive, we will forward to you a description of the document and an
explanation of the basis for its nondisclosure.

                                        819
   We remain willing to provide you, your Subcommittee, or your Subcommit­
tee’s staff with any information o f a factual, technical, or policy nature regarding
the three specified hazardous waste sites to the extent not inconsistent with the
President’s instructions.

                                           Sincerely,




                                           Anne M. Gorsuch
                                           Administrator
                                           Environmental Protection Agency




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