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.
Second, the internal EPA rules are established to serve important purposes
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 ongoing 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 and, where possible, to release information not otherwise privileged. However, while I would encourage the agency to voluntarily cooperate as much as possible with state processes, I do not think it is appropriate for a state or local court to order federal officials to do so. If these courts could so easily subpoena federal officials, the officials might find themselves spending all of their time doing nothing but complying with state court orders and thus they would have little opportunity to pursue their important governmental responsibilities. Indeed, I believe the EPA regulations outlined above are conscientiously designed to deal with this very difficult issue -- that is, to balance the work of the agency with the desire to cooperate as much as possible with local proceedings.
For these reasons, it is this 10th day of July, 1987, hereby
ORDERED that the petition for removal be granted and it is further
ORDERED that the subpoenas issued to the United States Environmental Protection Agency on June 19, 1987, by the Superior Court of the District of Columbia be quashed.