APPROVAL DATE: • 6/21/891
LEVEtOEDRA
'Sfcs^raw
B;£r Signed by,0ffice Director
D'sps^' ii"*'
,C'^- Revi
REFERENCE (other documents)
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United States
Office of
Solid Waste and
Emergency Response
4>EPA
DIRECTIVE NUMBER: 9835.11-1
TITLE: Model Litigation Report for CERCLA Sections 106
and 107 and RCRA Section 7003
APPROVAL DATE: -6/21/89
EFFECTIVE DATE: 6/21/89
ORIGINATING OFFICE: Office of Enforcement and
Compliance Monitoring Waste
S FINAL
D DRAFT
LEVEL OF DRAFT
— Signed by.AA or OAA
D B — Signed by Office Director
DC — Review & Comment
REFERENCE (other documents):
SWER OSWER OSWER
DIRECTIVE DIRECTIVE Dl
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Ocft
^ ^m^^ A ~ United States Environmental Protection Aaencv
JebPPA Washington. DC 20460
<"crM OSWER Directive Initiation Reauest
1. Directive Number
9835.11-1
2. Originator Information
Name of Contact Person
David Van Slyke
Mail Code Office
LE-134S OECM-Waste
Telephone Code
FTS 382-3050
3'£odel Litigation Report for CERCLA Sections 106 and 107 and RCRA
Section 7003
4. Surnmflty of Directive (include bnef statement of Qufpose) .. . * •*•*_• *. • ._... «*•*.<§? siv-w-a i »»^irv^r^f* Q "f r^T"
Guidance on prepration of civil judicial litigation referral reports ™*
cases to be referred to the Department of Justice under CERCLA Sections 106
and 107 and RCRA section 7003.
5. Keywords _
Referrals, Cost recovery Judicial Referrals, CERCLA, RCRA, Enfo^
6a. Does This Directive Supersede Previous Directive(s)? i i LJl "-"c"1^^*-"
X No 1 | Yes What directive (number, title)
b. Does K Supplement Previous Directivefs)?
Q No Yes What directive (number. (Me)
^^_^_J
7. Dran Level
|^J A-SJgnedbyAA/DAA | | B - Signed by Offlce Director } ] C - For Review & Con
•ntjiil I 1 U - U DlPrVPe^rnCnl
8. Document to be distributed to States by Headquarters? LJ Yn
This Request Meets OSWER Directives System Format Standards.
9. Signature of Lead Office Directives Coordinator
1 0. Name and Title of Approving Official
Date
Date
EPA Form 1315-17 (Rev. 5-»7) Previous editions are obsolete.
OSWER OSWER OSWER O
VE DIRECTIVE DIRECTIVE DIRECTIVE
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3 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. DC. 20460
JUN 2 1 1989
J
A
9835.11-1
off ic.t a*
MEMORANDUM
SUBJECT: Model Litigation Report for CERCLA Sections 106
and 107 and RCRA Section 7003
FROM: Edward E. Reich
Acting Assistant
TO: Regional Administrators
Regional Counsel
I have attached the Model Litigation Report for
CERCLA Sections 106 and 107 and RCRA Section 7003. This model
supplements previous Agency guidance entitled "Model Litigation
Report Outline and Guidance" (OECM, August 23, 1984), which
addressed the preparation of a litigation package under most
statutes, but excluded, among others, packages to be prepared
for prosecution of civil judicial actions under CERCLA
Sections 106 and 107 and RCRA Section 7003.
The model is intended for use in all civil judicial cases
referred to the Department of Justice for prosecution under
CERCLA Sections 106 and 107 and RCRA Section 7003. For those
actions referred in conjunction with a settlement, a full
litigation report is not required. Rather, the Regions should
follow soon-to-be-issued guidance on pre-referral negotiations
and current policy governing the preparation of settlement
analyses accompanying the referral of consent decrees. See, 52
Fed, "seer. 2034 ("Interim CERCLA Settlement Policy"). This
document also does not specifically address preparation of
litigation reports for prosecution of penalty actions under
CERCLA Sections 106(b), 109 or 122(1), although many sections of
this document may be applicable to the preparation of such
litigation-reports.
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9835J1-/
- 2 -
I would like to express my appreciation to you and to the
members of your staffs that have reviewed and commented on the
drafts of the document. If you have any questions regarding this
guidance,, please call Glenn Unterberger or David Van Slyke of my
' "at "382 -3 050.
Attachment
cc: Jonathan 2. Cannon, Acting Assistant Administrator, OSWER
Donald A. Carr, Acting Assistant Attorney General, Land and
Natural Resources Division, Department of Justice
David T. Buente, Chief, EES, Department of Justice
Bruce M. Diamond, Director, OWPE
Waste Management Division Directors, Regions I-X
Regional Counsel Waste Branch Chiefs, Regions I-X
CERCLA Program Branch Chiefs, Regions I-X
OECM-Waste Attorneys
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9835,11-1
MODEL LITIGATION REPORT
CERCLA SS 106 and 107 and RCRA S 7003 Actions
This guidance and
. are
Environmental Protec
Procedures, do not constiti£e
be relied upon to create a
procedural, enforceable a- 1 a
"
i-i-
i— ernal implementing proces-
f°r its
e-ployees of
gwlcy' Sucn guidance and
*Z the Agency and ^ not
benefit' substantive or
guidance and its
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9835.1'M
MODEL LITIGATION REPORT
CERCIA SS 106 and 107 and RCRA S 7003 Actions
TABLE OF CONTENTS
I. Cover Page 1
II. Table of. Contents 1
III. Synopsis of the Case (Executive Summary) . . . 1
IV. Significance of Referral 2
Statutory Bases of Referral/Legal Theory of Case .... 2
Description and History of the Site . . 3
VII. status of Cleanup Process 4
Vlil. National Resource Damage Claims 7
IX. Prima Facie Case, Liability and Description of
Proposed Defendant(s) and Miscellaneous
Issues -Regarding Liability and Cost Recovery 8
X. Enforcement History/Contacts with Potential
Defendants 13
XI. Cost Recovery 21
XII. Penalties and Punitive Damages 25
XIII. Injunctive Relief • 26
XIV. other Legal Issues .29
XV. Litigation/Settlement Strategy . . . 3C
XVI. Other Imminent Hazard Provisions 31
XVII. Witnesses/Litigation Support 33
APPENDIX I - RCRA § 7003 Prima Facie Case A-l .
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9635.11-1
MODEL LITIGATION REPORT
CERCIA SS 106 and 107 and RCRA 8 7003 Actions
I. Cover
A. Region, statute (s) involved and judicial district.
B. Name of defendant(s) by category (e.g., owners, operators,
generators, transporters) .
Include names, addresses and telephone numbers of all
proposed defendants in an appendix to the litigation
report. The list of all other potential defendants, with
addresses and telephone numbers (where available) also
should be attached as an addendum.
C. Name, address and EPA ID Number of facility or facilities.
Include name, address and telephone number of all
facilities/sites subject to the referral.
D. Regional contacts.
Include names, addresses and telephone numbers of
regional program (technical) and legal contacts who
prepared the report.
E. Stamp date of referral on cover page.
II. Table of Contents
Include headings, subheadings and page numbers.
III. Synopsis of the Case (Executive Summary)
This should be a concise narrative summary statement
briefly describing the site, the environmental problem,
cleanup/enforcement to date, projected future removal/
1 The cover page should be in addition to the "Data Form"
prepared as a one to two page fact sheet on the case. •
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remedial efforts, past/future response costs, the
proposed defendants and the relief sought.
IV. Significance of Referral
Indicate if the case is part of a special Agency
initiative or may present issues of national
significance.
V. Statutory Bases of Referral/Legal Theory of Case
A. Applicable statutes.
Reference briefly all applicable Federal statutes by
United States Code (U.S.C.) citation and by section of
the Act.
B. Enforcement authority; jurisdiction and venue- .
' Summarize briefly the enforcement authority .and the
jurisdiction and venue provisions of applicable statutes.
If there is reason to file the action in a district other
than where the site is located, note each .available.
district and indicate the reasons for filing there..
(Note that CERCLA. §§ 106 and 113(b) contain specific
statements of available venues for CERCLA actions, but
that RCRA § 7003 and other imminent and substantial
endangerment causes of action typically do not. Venue
for cases involving such counts may need to depend upon
the general Federal venue provisions of 28 U.S.C.
§ 1391.)
c. Bankruptcy petitions.
If the referral is for the filing of a bankruptcy claim,
describe the status of bankruptcy petition, including (1)
whether Chapter 7, 11, or 13, (2) whether reorganization
plan filed, and (3) bar date for proof of claim. See.
"Guidance Regarding CERCLA Enforcement Against Bankrupt
Parties" (OECM, May 24, 1987); "Revised Hazardous Waste
Bankruptcy Guidance" (OECM, May 23, 1986). If the case
involves a PRP that has filed for bankruptcy, obtain and
attach schedule and any other court documents previously
filed. Discuss the significance of the bankruptcy to the
overall enforcement or cost recovery action and the
likelihood of obtaining the relief sought.
NOTE; :it is important to inform DOJ of a bankruptcy
filing or a pending bankruptcy action as soon as the
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5835.1)-/
''' Region becomes aware of such action. See. "Coordination
of Agency Involvement in Bankruptcy Proceedings Affecting
RCRA or CERCLA Enforcement" (OECM, June 10, 1988)
D. Cross-media coordination
State whether coordination across media has occurred.
Cross-media regional review should ensure that
consideration has been given to including all available
causes of action pertaining to that particular
owner/operator and site.2 Discuss reasons for including
or omitting cross-media claims. Where the secondary
cause of action is minor, or where the case development
will take an inordinate amount of time, the case should
be referred with the excluded secondary cause of action
clearly identified. However, if the secondary cause of
action is major, and if development will not unreasonably
delay the referral, all such causes of action that are
appropriate for filing should generally be referred
together. This is particularly true for endangerment
cases that may be brought under several environmental
statutes simultaneously, if considerations such as
defenses, scope of liability and record review warrant
it. See discussion regarding other imminent and
substantial endangerment provisions of Federal statutes
in. Section XVI, below.
VI. Description and History of the Site
A. Site location (include here, or as attachments to Litigation
I'.eport (e.g., in ROD), appropriate maps). See
Section IX.A.2. (Page 10, infra).
B. Facility processes - Describe the manufacturing, recycling
or disposal processes that are pertinent. See
Section IX.A.2. (Page 10, infra).
C. Sita description (photographs, diagrams, etc., as
appropriate). See Section IX.A.2. (Page 10, infra).
2 Review of other potential causes of action is
particularly important in cases involving. RCRA
facilities that were in operation after November 19, 1980 and .
facilities involving PCS contamination that may be regulated under
TSCA. In addition, review and coordination is critical under
those exceptional circumstances where the Agency might
contemplate a release from liability under several statutes/media.
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D. JfPL status
Include status of NPL listing. If not on the NPL, state
status of HRS scoring, whether the site has been proposed
for the NPL and, if so, the date the site made (or is
expected to make) the final NPL. Include appropriate
Federal Register cite(s). Also indicate whether State,
PRPs or citizens object to the proposed listing.
E. General description of environmental problem posed by the
site.
VII. Status of Cleanup Process
A. Cleanup activities by parties other than EPA prior to or
contemporaneous with EPA involvement.
Describe, chronologically, all response efforts
undertaken at the site by PRPs, or state or local
governments, that have occurred prior to EPA involvement
or outside the scope of EPA oversight.
B. EPA cleanup actions.
The referral must clearly identify each of the Agency
responses undertaken at the site, including each removal
and remedial operable unit, and, if the action seeks to
compel PRP response under § 106, the proposed response
action. If the site involves multiple operable units
(and multiple RI/FSs and RD/RAs), discuss those .operable
units that are the subject of the referral and generally
describe any planned investigations and studies. ;The
action must have been sanctioned (e.g., action memo or
record of decision), there must be an adequate
administrative record for each response action decision,
and the actual action must be documented.
1. Removals
a. Identify and include the authorizing document
(Action Memo).
b. Describe the status of the Administrative Record
supporting the removal decision. See Section
VII.C., below.
c. Describe the major community relations activities
relating to the removal, including any public
comment periods held (how long and what for) ,and
public meetings held. Identify and describe any
particular portion of the response action in which
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9835J1-/
the public (including PRPs) has expressed interest.
Include responsiveness summaries published following
any public comment period.
d. Identify and describe each activity completed, when
those activities were completed and the status of
activities underway or planned. Include a
discussion of the entity that performed the activity
(e.g., name of contractor and primary contractor
contact) or the Agency personnel or office that
undertook the activity. Also identify each OSC that
worked on the project.
2. Remedial Investigation/Feasibility Study through Record
of Decision
a. Identify and describe each RI/FS completed, when
those activities were completed and the status of
activities underway or planned. Include a
discussion of the entity that performed the RI/FS
(e.g., name of contractor (and any r^jor
subcontractors) and primary contractor contact) or
the Agency personnel or office that undertook the
activity. Also identify each RPM that worked on the
.project.
b. Describe the major community relations activities
relating to the each RI/FS, including public comment
periods held (how long and what for) and public
meetings held. Identify and describe any particular
portion of the RI/FS in which the public (including
PRPs) has expressed interest. Include
responsiveness summaries published following any
public comment period. .
c. Discuss and include the authorizing document (Record
of Decision (ROD)). Discuss any significant issues
likely to be raised by defendants regarding adequacy
of the ROD.
d. Describe the status of the Administrative Record
supporting the remedial decision. See Section
VII.c., below.
. e. ATSDR Evaluation - Discuss ATSDR evaluation and
any potential litigation problems raised by
differences between EPA and ATSDR evaluations.
Identify who at ATSDR did the evaluation.
f.. Posture of State regarding ROD and Participation in
Settlement - Describe any contacts with the state
regarding concurrence in the remedy selected.
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9835,11-1
o
*
Identify any EPA/State enforcement issues, such as
whether the State has indicated interest in inter-
vening in any potential Federal action/settlement.
Attach pertinent correspondence.
g. A risk assessment/endangerment assessment, typically
part of an RI/FS, is generally performed to support
remedial action selection decisions. Such an
assessment will be the vehicle normally used to
establish the imminent hazard portion of a CERCLA
§ 106 or RCRA § 7003 claim. Such an assessment
should be undertaken pursuant to the Superfund
Public Health Evaluation Manual (OSWER, October
1986) . See also, "Risk Assessment Guidance for
Superfund — Environmental Evaluation Manual"
(Interim Final, OSWER March 1989). .Discussion of
the risk assessment/endangerment assessment should
take place in conjunction with Sections IX and XIII,
below.
Appendix Two of the RCRA/CERCLA Case Management --. :•
Handbook (August 1984) contains a checklist of facts
necessary for CERCLA imminent and substantial
endangerment cases. Appendix I hereto discusses the
RCRA Section 7003 prima facie case.
h. Discuss and include any CERCLA § lll(k) Inspector
General audits of the RI/FS.
3. Remedial Actionfs)
a. Identify and describe each operable unit RD/RA,3 -
when those activities were started and (if
appropriate) completed, and the status of activities
underway or planned. Include a discussion of the
entity that performed each operable unit RD/RA
(e.g., name of contractor (U.S. Army Corps of
Engineers, XYZ Environmental Removal, etc.)),
important subcontractors and primary contractor
contacts) or the Agency personnel or office that
-undertook the activity. Also identify each RPM that
worked on each operable unit.
b. Describe the major community relations activities
during the RD/RA, notices of significant differences
3 While remedial design (RD) is technically a "removal"
action under the terms of the statute (See CERCLA
Sections 101(23) and 101(24)), it is appropriate to discuss RD in
conjunction with remedial action, given the nature of the remedial
design and remedial action process.
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9835,1 I-/
(§ 117(c)), revisions to the ROD including public
comment periods held (how long and what for) and
public meetings held. Identify and describe any
particular portion of the response action in which
the public (including PRPs) has expressed interest.
Include responsiveness summaries published following
any public comment period.
C. Administrative Record For Each Removal/Operable Unit
Judicial review of the adequacy of response action
selection decisions in the context of CERCLA Section 106
and 107 actions will be based upon the administrative
record supporting the decision. Thus, it is essential
that the administrative record in support of all
pertinent Agency response decisions be completed prior to
referral. See. "National Oil and Hazardous Substances
Contingency Plan: Proposed Rule." 53 Fed. Reg. 51394
(December 21, 1988) ; "Interim Guidance on Administrative
Records for Selection of CERCLA Response Actions"
(Porter, March 1, 1989); "Guidance on CERCLA Section 106
Judicial Actions (Reich/Porter 2/24/89). A list (index)
of all documents in the record must be included in the
referral package. The record itself must be compiled,
collated and stored in a secure location in the Region by
the time of the referral.4 Any outstanding issues
regarding compilation of the administrative record should
be noted and the plan for resolution of those issues
should be identified.
VIII. Natural Resource Damage Claims
A. Identify potentially interested Federal and/or State
natural resource trustees. See. Memoranda of
Understanding with NOAA and Department of Interior,5 and
40 C.F.R. 300.72 - 300.74 (Trustees for Natural
Resources).
4 In those exceptional circumstances where statute of
limitations concerns indicate it may be appropriate
(consistent with Agency guidance) to file as soon as possible, a
case can be referred without an index to or final compilation of
the administrative record.
5 These Memoranda of Understanding have been transmitted
to the Regional Counsel Branch Chief's under
separate cover.
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8
9835.11-1
-Summarize contacts, if any, with each trustee, and
identify lead trustee representatives and telephone
numbers.
B. Briefly describe natural resources that may have been
affected by contamination at or from the site as
identified by the trustee agency.
C. Status of site survey/damage assessment by trustee(s).
Briefly describe status of trustees' efforts to
determine whether significant injury to natural
resources has occurred at the site and, if
applicable, to evaluate measures to restore or
replace injured resources and assess damages
resulting from the injury.
D. Participation by trustee(s) in selection of remedy or
negotiations.
Briefly describe the role, if any, natural resources .
trustees have played in the RI/FS process, . -
consideration given to trustee comments in the ROD,..
and the trustee's participation or expressed level
of interest in participating in negotiations with
PRPs. . ...
IX. Prima Facie Case. Liability and Description of Proposed
Defendantfs). and Miscellaneous Issues Regarding Liability
and Cost Recovery
A. Prir^a Facie Case
There are three core elements6 to the prima facie case for
cost recovery or injuncti've relief under CERCLA:
o There is a- release or threat of release of a
hazardous substance;
o the release or threat of release is from a
.facility;
6 To complete a CERCLA prima facie case, additional
elements include: an imminent and substantial
endangerment (for CERCLA section 106 injunctive relief), or that
the government incurred response costs (for CERCLA Section 107
recovery). See. Sections XI and XIII, infra.
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9 9835.11-1
o the Defendant is in one of those categories of
liable parties in CERCLA § 107(a).7
This section of the litigation report should focus on the
first two elements8 of the core of the CERCLA prima facie
case:
1. Release or threat of release of a hazardous
substance.
Often, this element will be established by
on/off-site sampling showing that there has been an
actual release. Such sampling results may need to
be supplemented by an evaluation of the physical
conditions on or around the site that suggest the
threat of release. A summary of each different
sampling program undertaken with regard to the site
should be included here (along with a discussion of
any chain of custody or QA/QC issues/problems) and
any witnesses that may be needed to testify about
these procedures should be identified.
It is critical that all materials justifying the
response activity be identified and that each is
shown to be a hazardous substance.9 . Much of this
evidence should be gathered as part of the
Preliminary Assessment and Site Inspection (See 40
7 It should be noted that, under particular
circumstances, a CERCLA Section 106 action may lie
against parties other than those identified in Section 107. For
example, a Section 106 action may be available to compel a state
cr local entity to remove unwarranted procedural barriers to site
cleanup. See, e.g., United States v. Town of Moreau. No. 88-.CV-
S34.(N.D.N.Y. Sept. 6, 1988).
8 As noted in Section XI, infra (See, footnote 11 and
accompanying text), the evidence to establish these
first two elements should be based on documents in the
administrative record.
9 A list of substances that are hazardous substances
under CEKCLA is contained in 40 C.F.R. Part 302. That
regulation designates under CERCLA § 102 (a) those substances in
the statutes referred to in CERCLA Section 101(14). It should
also be noted that a RCRA solid waste, as defined in 40 C.F.R.
261.2, which is not excluded from regulation as a hazardous waste
under 40 C.F.R. 261c4(b), is a hazardous substance under CERCLA
j 101(14) (as w«ll as a hazardous waste under RCRA) if it exhibits
any of the characteristics identified in 40 C.F.R. 261.20 through
261.24.
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10 ''*
C.F.R. § 300.64, 40 C.F.R. § 300.66 and CERCLA
104(b)) and in the RI/FS (40 C.F.R. § 300.68).
3fJH
2. From a facility.
CERCLA § 101(9) describes in broad terms what is
included in the definition of a "facility."
Describe the evidence indicating that a "facility"
exists.
When the site is on or proposed for NPL listing, one
must be conscious of the manner the facility is
defined in the litigation vis-a-vis the parallel
discussion of the "facility" in the NPL listing.
Any deviation from the NPL listing should be
discussed.
If the proposed litigation involves multiple sites
or a remote sites theory, discuss each site/facility
and the theory of liability with regard to each
site. In those discussions, describe, as
appropriate, the impact of multiple sites on the -
allocation of costs and the allocation of harm.
The next section of the litigation report should focus on the
third core element of the prima facie case — liability o'f the
proposed defendants.
B. Liability and Description of Proposed Defendants
Much of the basis for the liability case against all PRPs
will be established during the EPA PRP search. Procedures for
conducting PRP searches and the type of information that
should be obtained are included in "Potentially Responsible
Party Search Manual" (OSWER Directive 9834.6, August 1987).
Pertinent information also may be contained in responses to
CERCLA § 104(e)/RCRA § 3007 letters and CERCLA § 122(e)
subpoenas.
As a general matter, the litigation-report should
describe the basis for asserting liability against each
proposed defendant and explain why EPA does not propose to sue
certain potentially responsible parties at"this time.
However, the complete package of information described below
in Sections B.I., B.2. and B.3. is not required at this time
for those PRPs EPA does not propose to sue as a result of this
referral. In addition, some of the information required below
may be available in the PRP Search Report for the site, which
should be included as an attachment to the litigation report,
if available. If the PRP Search Report covers "the material
needed in particular sections of the litigation' report,
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attaching the PRP Search Report and citing to the appropriate
pages may be appropriate.
The report should include names of all PRPs, the volume
and nature of substances contributed by each PRP and a ranking
by volume, to the extent available, as done under
§ 122(e)(l) of CERCLA. Especially difficult issues of
liability, such as individual corporate officer liability,
corporate parent/subsidiary liability and successor
corporation liability, should be highlighted in this section
of the litigation report.
Information regarding liability of PRPs generally is net
included in the administrative record for selection of the
response action except to the extent that PRP-specific
(typically, substance-specific) information is needed for
response selection decisions. However, all PRP liability
documents must be collated, separated by PRP to the extent
possible, and available in the Regional office at the time of
referral. The format for discussing PRP liability and
describing the proposed defendants is noted below.
1. Owner or Operator and Former Owner or Operator.
(CERCLA §§ 107(a)(l) and (2))
a. Description of facility and activities undertaken at
facility during period of ownership.
Briefly discuss the business of the defendant,
providing details about the facility in
question. When the defendant is a
manufacturer, describe what is produced.
Describe the plant and processes used.
Emphasis should be on the source of the
release/threatened release that necessitates
the response action. Legal description of the
property must be in the title search done
during the PRP search.
Past owners are responsible if they owned the
property when hazardous substances were
disposed of. Title search will establish
ownership; documents (business records,
permits, manifests, etc.) and witnesses (names
of employees,-neighbors should be included)
will establish disposal at time of ownership.
b. State of incorporation/principal place of business.
If there is a question whether the corporation
has been dissolved or subsumed into a different
entity, discuss, the issue, ascertain status of
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9835.1 H
corporation and attach a Dun and Bradstreet
report and corporation papers from the
Secretary of State's office (if not too
voluminous).
Give a brief synopsis of any name changes and
changes in corporate form of the proposed
defendant(s) . Include dates during which the
corporation managed the business responsible
for the problem.
c. Agent for service of process.
Include name, address, and telephone number, if
known.
d. Legal counsel.
Include name, address and telephone number.
Note if there are liaison counsel, separate
negotiation and litigation counsel or a .
. steering committee involved and include-• —
pertinent names and affiliations.
e. .Identity of any parent or successor corporation(s).
Discuss evidence available or needed to show
corporate control or assumption of liabilities.
Merger, acquisition and divestiture papers
should be attached, if available and not too
• voluminous.
f. Deed/purchase agreement with former owner.
This may be part of the title search completed
during the PRP search.
g. Lease Agreements.
If the property is or has been leased, include
a copy of -the lease agreement(s), if not too
voluminous:.
h. Financial viability/insurance information.
Where financial viability of a potential
defendant is an issue, financial and insurance
information will be important. Discuss the
issue and attach prior 10K, 10Q or other SEC
filings, Dun and Bradstreet or other similar
report, and recent bank loan applications, if
not too voluminous. See. "PRP Search Manual"
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9835.1H
and "Guidance on Use and Enforcement of
Information Requests and Administrative
Subpoenas" (OECM, 08/25/88).
Where insurance coverage may be available,
describe and attach, if available, any current
or previous potentially applicable insurance
policies. If the case is a multi-generator
case, insurance information is not needed in
the referral package itself. See. "Guidance on
Use and Enforcement of Information Requests and
Administrative Subpoenas" and "Procedural
Guidance on Treatment of Insurers Under CERCLA"
(OECM, 11/21/85).
i. Personal liability issues.
If proposed defendants include corporate
officers or managers, discuss facts surrounding
corporate officers'/managers' personal
involvement in the activities resulting in
liability and the degree of their personal
direction of corporate affairs.
j. Potential CERCLA § 107(b) defenses.
The only defenses available to liability under
CERCLA § 107(a) for owner/operators are set
forth in § 107(b). The defendant must
demonstrate by a preponderance of the evidence
that the release was caused solely by (1) an
act of God, (2) an act of war, (3) a third
party (under certain conditions), or (4) any
combination of the above. Discuss any
potential § 107(b) defenses associated with the
potential actions and include documents that
may tend to support or negate such defenses.
In general, the third-party defense in CERCLA §
107(b)(3) is available if the PRP can
establish, by a preponderance of the evidence,
that an entity, not related to the PRP by
contract, agency or otherwise, was solely
responsible for the release, and the PRP
exercised due care concerning disposal at the
site in light of the circumstances and took
precautions against foreseeable acts or
omissions of such third parties.
The litigation report should identify and
address any events or circumstances that may
show "sole cause," "due care" or
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14
983 5,1 H
"foreseeability." Discussion of the
availability of the third-party defense in
light of those facts should also be included in
the report.
Discuss fully whether the "innocent landowner"
defense may be available based upon the
parameters set forth in CERCLA Section 101(35).
Review "Guidance on Landowner Liability under
Section 107 (a) (1) of CERCLA, Dje Minimis
Settlements Under Section 122(g)(l)(b) of
CERCLA and Settlements with Prospective
Purchasers of Contaminated Property" (OECM/OSWER
6/6/89) and SARA Conference Report. Discuss
how factors relating to the landowner fit
within the guidance. Include all
administrative discovery and documents from the
landowner which may tend to support or negate
this defense. The referral should also assess
the nature and weight of available evidence . .
regarding the defense as it may apply to each-;..
owner/operator.
2• Generators and Other Persons Who Arranged for Disposal
(CERCLA § 107(a) (3) )
The following information should be provided for
those parties that.the' Region recommends as defendants.
A lesser amount of information regarding other potential
generator-type PRPs that are not proposed defendants at
this time should be provided as well, along with a short
explanation of the determination net to include those
parties as proposed defendants in this referral package.
See Section IX.B., page 10, supra.
«-
a. As a starting point, the referral must contain a
list of amount and types of wastes generated by and
contributed to the site by each generator, to the
extent known, ranked by volume. The list should
include an indication of whether the material is a
RCRA hazardous waste or other CERCLA hazardous
substance and the source of that'determination
(e.g., it is a listed waste, it fails the Extraction
Procedure (EP) Toxicity Test, etc.). See. Section
IX.A.1., below. If ATSDR is or will be writing a
report, so note (and attach copy if appropriate and
not too voluminous).
b. Identification of generator's facility and
description of and evidence documenting amount and
type of hazardous substances sent to the site (e.g.,
manifests., § 104(e)/§ 3007 letter responses,
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9835.1
15
subpoenas, interviews, etc.). Such information
should be organized, summarized and collated
separately for each defendant. If such documentary
information is not available or is somewhat
equivocal (assuming, of course, a good faith basis
to proceed), the litigation report must identify the
reasons for including the party as a proposed
defendant and the strategy for linking the defendant
to the site (e.g., proposed discovery strategy or
use of process chemistry).
c. Indication of the current level(s) at the site of
each contaminant sent to the site by the proposed
defendant(s), if available. It is important that
the hazardous substances at the site be identified,
to the extent possible, with each potential
defendant.
d. Description of the transporter of and the method of
transporting the material for disposal.
Facts should be included detailing whether the
company used an independent contractor, company
owned vehicles, etc. for delivering the waste
material.
e. State of incorporation.
See, Section IX.B.l.b. above.
f. Agent for service of process.
See. Section IX.B.I.e., above.
g. Legal counsel.
See, Section IX.B.l.b., above.
h. Identity of any parent or successor corporation(s).
Where financial viability of a subsidiary is
questionable or when a PRP has been acquired by
another entity subsequent to disposal of the
hazardous substances, discuss evidence
available or needed to show corporate control
or assumptions of liability. Merger,
acquisition and divestiture papers should be
attached, if available and not too voluminous..
i. Description and evidence of financial viability.
See. Section IX.B.l.h., above.
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16
j. Potential CERCLA § 107(b) defenses.
See, Section IX.B.l.j., above.
Transporters - CERCLA § 107(a)(4)
a. Description of transporter's business.
b. .List of generators each transporter worked for.
c. List of amount and types of waste transported and
destination.
d. Description of evidence documenting pickup point and
destination point, and amount and type of hazardous
wastes or hazardous substances transported.
e. Discussion of evidence to be used in showing that
the transporter selected the site. See. "Policy for
Enforcement Actions against Transporters under
CERCLA" (OECM/OWPE, December 23, 1985).
f. Description of any potential trans-shipments beyond
disposal facility in question. See also, discussion
at Section IX.B.2.J., above.
g. State of incorporation.
See. Section IX.B.l.b., above.
h. ' Agent for service of process..
See, Section IX.B.I.e., above.
i. Legal counsel.
See. Section IX.B.l.d., above.
j. Identity of any parent or successor corporation.
See. Section IX.B.2.h., above.
k. Description and evidence of financial viability.
See. Section IX.B.l.h., above.
1. Potential CERCLA § 107(b) defenses.
See. Section IX.B.2.J., above. Also'note "ICC"
defenses in CERCLA § 101(20).
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17
C. • Miscellaneous Issues Regarding Liability
and Cost Recovery
1. Special Defendants
Identify and discuss any issues regarding special
defendants (e.g., municipal or State agency
defendants). Include here any discussion of Federal
PRPs involved with the site.
2. Divisibility of Harm
Discuss any divisibility issues presented by
separate sites or potentially segregable harms
presented at a single site. Discuss any proposed
allocation of costs that is based upon such
potential divisibility.
3. Exemption from Liability Issues - Discuss if applicable?
a. Federally permitted release (CERCLA § 101(10)).
See. "Reporting Exemptions for Federally Permitted
Releases of Hazardous Substances; Proposed Rule" 53
Fed. Rea. 27268 (July 19, 1988).
b. Petroleum, natural gas, synthetic gas, and crude oil
exclusions (CERCLA §§ 101(10), 101(14), 101(33)).
For cases involving waste oil, used oil or
other petroleum based materials, set forth a
preliminary determination of why the parties
dealing with such materials should be sued and
the bases for this determination.
Review "Scope of the CERCLA Petroleum
Exclusion" (OGC, July 31, 1987) and state how
.analysis in this case complies with that
guidance. Once promulgated, RCRA § 3014
regulations should be discussed, if relevant.
c. Nuclear materials (CERCLA § 101(22)).
d. Fertilizers - Normal application is not a "release"
(CERCLA § 101(22)) .
e. Pesticides - Cost recovery may not be available
for response to releases of pesticides registered
under FIFRA. See CERCLA Section 107((i). Discuss
any "pesticide reformulation facility" issues that •
may be relevant.
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9835,? |-
18
f. Consumer products - Products for consumer use not
included in definition of "facility" in CERCLA
§ 101(9).
4. Equitable Considerations10
In certain circumstances, the Region may be able to
anticipate additional arguments that will be asserted by
certain PRPs. Such arguments may include equitable
defenses, negligent permitting of a site by a State or
Federal agency, etc. Any such potential issues known to
the Region should be identified and addressed in the
litigation report.
5. Ability to Recover Costs/NCP Issues
Discuss any potential arguments that may be asserted by
defendants regarding costs, including such things as
gross errors in implementing the remedy and inconsistency
of the response with statutory or NCP provisions. This
discussion may be deferred to Section XI.D., below, if
appropriate.
6. Potential Criminal Liability
The referral memo should briefly describe if there is a
State or Federal criminal investigation ongoing,
contemplated or completed and relationship to current
Agency guidance on parallel proceedings.
X. Enforcement History; Contacts with the Potential Defendants
To ensure that the Department of Justice has a complete
history of ZPA's course of dealings with the site and the
potential defendants, the following information should be
discussed if applicable.
A. Pertinent contacts with potential defendants. Indicate
dates, duration, nature of contact and any conclusions
drawn, including evidence of recalcitrance or
cooperation." Initial contact may be made during the PRP
search. The following is a partial list of the types of
10 . The government has consistently taken the position
that, aside from proving that they are not one of the
parties that may be held-liable under CERCLA Section 107(a), a
PRP's only possible defenses in a CERCLA action are those
delineated in CERCLA Section 107(b). It should be noted, however,
that certain courts have held that equitable defenses are
available under CERCLA.
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9835.1
19
*• contacts that should be discussed in the litigation
report.
1. Information requests, subpoenaed documents/
testimony.
See. "Guidance on Use and Enforcement of CERCLA
Information Requests and Administrative
Subpoenas" (OECM 08/25/88).
2. Interviews with site or generator employees, truck
drivers, etc.
3. FOIA requests.
4. Demand letters (CERCLA § 107 actions only).
5. Warrants, access orders or agreements.
6. Administrative order(s)
Describe any State or Federal AOs that have
been issued to anyone involved at the site a'nd
the current status of the order(s). If the
case involves enforcement of a Federal AO under
RCRA or CERCLA, the AO should be attached to
the report and the basis for and the facts
surrounding any claim for penalties or treble
damages (CERCLA only) need to be discussed.
7. Permit(s) (State or Federal) and permit applications
relevant to the referral.
List all permits issued to the facility or site
and discuss, those that are relevant to this
referral and any actions required to enforce
the conditions of the permit.
8. Federal lien - See. "Guidance on Federal Superfund
Liens" (OECM 9/22/87). . -
B. Involvement of State, local agencies.and citizens.
Identify pertinent contacts or actions taken or
anticipated, by State or local agencies and citizens. In
particular, discuss local or State- civil or criminal
enforcement actions taken or pending and describe any
role the State anticipates playing in an ongoing action.
Any notable positions that the State has taken regarding
this site or other CERCLA sites in the area of State
. involvement in remedy selection or implementation
decisions, or ARAR selection should specifically be
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20 9835.1 H
noted. Media coverage regarding the site should also be
noted and print media articles should be attached, if
available.
C. Citizen suits filed.
Identify any relevant citizen suits. Identify plaintiffs
and defendants. Summarize claims asserted. Indicate date
case was filed and in what court. Describe case status.
D. Administrative or judicial actions (regarding the site
only) filed by State or filed or referred by Federal
government under environmental statutes other than RCRA,
CERCLA or State counterparts thereof should be discussed.
Include recent actions in all media and under all
statutes. Include any related or pending administrative
enforcement proceedings (e.g., CAA § 113/120, TSCA §
16 (a), RCRA § 3008, FIFRA §§ 13 or 14(a), CWA § 309, and
MPRSA § 105(a) proceedings). Generally discuss
defendant's responses. Also indicate recent contacts
by/with program office permits staff.
E. RCRA facilities.
Where the site/facility is a RCRA facility or former RCRA
facility (e.g., LOIS, WOIS, or protective filers of a
RCRA Part A permit), the rationale must be given for the
decision to pursue § 7003 or § 106 injunctive relief for
site remediation, instead of corrective action or closure
pursuant to RCRA § 3008(h) or, if appropriate, §§ 3004(u)
or (v), where permitted. IMPORTANT; See. NPL deferred
listing policy for RCRA sites, as described at 51 Fed.
Reg. 21057 (June 10, 1986) and 53 Fed. Reg. 30002
(August 9, 1988). See also. "National Oil and Hazardous
Substances Contingency Plan; Proposed Rule." 53 Fed. Reg.
51394, 51415 (December 21, 1988).
F. Prior Orders or Consent Decree(s)
Certain facilities or sites may have been subject to
prior administrative orders or consent decrees addressing
other cleanup actions or access. The litigation report
should include a general description of the terms of the
decree, whether the facility or site owner complied with
the terms of the decree and what statute and claims were
involved.
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2i 9835,1 H
XI. Cost Recovery
There are four elements to the orima facie case for
cost recovery relief under CERCLA:
o There is a release or threat of release of a
hazardous substance;
o The release or threat of release is from a
facility;
o The release or threat of release caused the
United States to incur response costs,
o The Defendant is in one of those categories of
liable parties in CERCLA § 107(a).
Elements 1, 2, and 4 have been discussed in Section IX,
above.11 The third element (expenditure of response costs),
as described below, has several facets to it.12
There are two general types of evidence that must be
available to prove costs: "work" evidence and "cost" evidence.
The "work" evidence typically will be in the form of documents
and testimony detailing the activities undertaken. The "cost"
evidence will primarily involve documents detailing the cost
of those activities. The major guidance documents
discussing CERCLA costs and cost documentation requirements
are: '
o "Procedures for Documenting Costs for CERCLA
§ 107 Actions" (OWPE January . 1985)
11 These three elements are typically part of the
government's "liability" case and should be
established, in most cases, through summary judgment. The
evidence to establish the "release/threat" and "facility" elements
should be based on documents in the administrative record for the
selection of the response action.
12 To the extent that this element of the Section
107 prima facie case involves review of remedy
selection decisions, Section 113 (j) requires that review be on the
administrative record. It is EPA's view that under Section 107
of CERCLA, judicial review of costs incurred by EPA is confined to
proof that the implemented cleanup was consistent with the
response action selected by EPA, that the response action was
performed and that the claimed costs were actually incurred.
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22
o "Financial Management Procedures for Documenting
Superfund Costs" (FMD September 1986)
o "Cost Documentation Requirements for Superfund
Cooperative Agreements, Appendix U" (OSWER Directive
9375.14u)
o "Resource Management Directive 2550D - Financial
Management of the Superfund Program" (Comptroller
July 25, 1988)
o "Superfund Cost Recovery Strategy" (OSWER Directive
No. 9832.13, July 25, 1988)
Work and cost documents must be available for each of the
cost areas in a cost recovery case. In addition, official
determinations regarding- expenditures of money should be
discussed in the litigation report and the corresponding
documents included in the appendices (e.g., approval memo for
removals exceeding $2.0M). The referral should also indicate
whether the Region has redacted the cost documents.for
confidential business information (CBI) and, if.not, a date by-
which it will do so.
A. Past cost summary (by category of costs).
As noted in prior guidance, the cost summary (but not the
entire cost documentation package) must be included in
the litigation report. Nonetheless, the complete cost
documentation package must be compiled in the Region at
the time of the referral and supplemented thereafter on a
timely basis.
B. Response action cost elements and documentation.
The referral must clearly identify each of the Agency
responses undertaken at the site (i.e., Removal(s),
RI/FS, RD, and RA) and each operable unit of each
response.
*
Each phase of a response action7will have certain types
of documentation required for proof of the costs for that
phase of response. Some of the. documentation may be .
similar to that used in proof of other phases of an
overall response to a site. ' Fbr each of the response
actions at a site, the following information and documents
must be gathered, organized and available in .the Region at
the time of referral. Definitive guidance on the
documents necessary for cost recovery is contained in the
manuals noted above.
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23 98 3 5.1 H
Each Federal contractor used and tasks performed.
a. Work done (e.g^, contracts, subcontracts,
letter reports, Technical Directive Documents
(TDDs), work assignments, scopes of work, work
progress reports, TDD Acknowledgement of
Completion);
b. cost of that work (e.g., invoices, vouchers);
and
c. that payment was made (e.g., paid/processed
invoices, contract status notifications, and
Treasury Schedules).
Each Interagency Agreement (IAG) employed and tasks
performed.
a. Work done (e.g., each IAG, contracts entered
into by the other Agency, work assignments,
scope of work, work progress reports, and ack-
nowledgements of completion);
b. cost of that work (e.g., invoices, vouchers,
drawdown vouchers and the pertinent reports to
the agency).;
c. that payment was made (e.g., paid/processed
invoices).
Each cooperative agreement signed, tasks performed
and contractors hired by the State.13
a. Work done (e.g., each cooperative agreement and
all amendments thereto, contracts entered into
by the State, work assignments, scope of work,
work progress reports, and acknowledgements of
completion);
13 CERCLA Section lll(k) requires an Inspector General
audit of the Hazardous Substances Superfund and random
audits of cooperative agreements and State Superfund contracts..
EPA's Inspector General also does periodic site-specific general
audits. The results of any site-specific audits pertinent to the-
referral should be described and, if not too voluminous, attached.
Copies of audit reports may be obtained from the Inspector General
Division of the Office of General Counsel.
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24
98 3 5,1 I-/
'- b. cost of that work (e.g., invoices, vouchers,
drawdown vouchers and the pertinent reports to
the Agency);
c. that payment was made (e.g., paid/processed
invoices).
4. Agency personnel activities performed at the site.
a. Work done (e.g., timesheets, travel
authorizations);
b. cost of that work (e.g., Agency financial
management (SPUR) report, Travel Vouchers,
etc.) ;
c. that payment was made (Treasury Schedules).
5. EPA .indirect costs - Indirect cost calculation
worksheets and summary sheet 'should be included
in the litigation report. See. "Superfund
Indirect Cost Manual for Cost Recovery
Purposes: FY 1983 through FY 1986" (OARM March.
1986) ; "Superfund Indirect Cost Rates for
Fiscal Years 1985 and 1986" (OARM 12/17/87).
6. Interest
a. Identify date of demand and include copy of
demand letter or other document indicating
initiation date used for calculation of
prejudgment interest.
b. Include spreadsheet or other documents showing
prejudgment interest calculations.
See. CERCLA Section 107(a); Comptroller Policy
Announcement 87-17: "Interest Rates for Debts
Recoverable Under the Superfund Amendments and
Reauthorization Act of 1986" (09/30/87); "Interest
Rates for Superfund Related Debts" (Comptroller
6/15/88)
C. Projected future costs.
1. An estimate of the types, amounts and basis of
future expenditures, if they are planned or can
reasonably be projected, should be included.
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6
'• 2. Future costs (or even a declaratory judgment
concerning liability for future costs14) are, for
tactical reasons, not always sought in each case.
If they are not sought (i.e., no potential statute
of limitations problem, an explanation why not
should be included.
D. Potential problems with costs. (See also, IX.C.5., above)
1. The referral should describe and include any
documents discussing or criticizing any cost figures
or. activities undertaken, including the On-Scene
Coordinator's Report (40 C.F.R. 300.40) or any
Congressional investigations or Inspector General
audits not described previously that refer to or
directly discuss the site cleanup activities or
costs.
2. Any-potential problems regarding consistency
with the National Contingency Plan should also be
discussed.
E. Statute of Limitations (CERCLA Section 113(g)(2)j
Discuss any potential statute of limitations issues.
See, "Timing of Cost Recovery Actions" (OWPE,
October 7, 1985). See also. "Cost Recovery Actions/
Statute of Limitations" (OWPE, June 12, 1987). Indicate
relevant dates.
F. Identify any prior proceeds received.
1. Ten percent state share
2. Prior settlement proceeds (received and expected)
3. Bankruptcy proceeds
XII. Penalties and Punitive Damages
A. Section 106(b) - State whether defendant has violated an.
order issued under Section 106. The referral must
describe all evidence showing that defendant
willfully violated or failed or refused to comply
with the order, without sufficient cause. Discuss
all arguments that defendant may raise justifying
failure to comply with the order (e.g., not a
responsible party, terms of order were arbitrary)..
See. CERCLA Section 113(g)(2)
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26 9835.1 1-
Set forth calculation of penalties. Discuss all
opportunities defendant had to meet with Agency
prior to issuance of the order. Note the
possibility that, under Tull v. United States. 481
U.S. , 107 S.Ct. , 95 L.Ed. 2d 365 (1987), the
case may involve a jury trial.^5 Any referral that
proposes civil penalties must contain some analysis
of the penalty aspects of the case in light of Tull.
B. Section 107 - Defendant may be liable for punitive
damages in an amount equal to and not more than
three times the amount of costs incurred by the
Hazardous Substances Superfund if defendant failed
without sufficient cause to properly carry out
removal or remedial action under a CERCLA §§ 104 or
106 order. Discuss the nature of and evidence
supporting proof of defendants' violations, the
amount and basis for damages sought under this
authority, and any justifications defendant may have
for failing to :erform the action.
XIII. In-iunctive Relief
Under this section of the litigation report, the substantive
requirements of the relevant portions of the applicable statute
should be presented. Applicable case law should be .cited and
analyzed. If a novel theory is proposed, support for that theory
should be included. In addition, any determinations that are
required by statute or regulation (e.g., that an imminent and
substantial endangerment exists at the site) should be described
and documented in the administrative record.
A. CERCLA Section 10616
CERCLA Section 113(j) clearly provides that CERCLA remedy
selection decisions are-entitled to review based upon, the
15 Under Tull. the Supreme Court held that the Seventh
Amendment to the Constitution may guarantee a jury
trial to determine liability in Clean Water Act civil enforcement
cases seeking civil penalties. Under that ruling, however, a jury
does not assess the amount of penalties, nor is a jury required in
an action brought solely for injunctive relief. The government's
position -is that a jury trial is not available to decide liability
issues where a court can decide the case through summary judgment
(e.g., where no issues of material fact are present).
16 See. "Guidance on CERCLA Section 106 Judicial Actions"
(Reich/Porter, 2/29/89) for factors considered in
selecting and initiating Section 106 actions.
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27 9835-1
administrative record.17 That decision will be based on,
among other things, evidence of two of the three core elements
of the CERCLA prima facie case (noted in detail in Section
IX.A., above): (1) the release or threat of release of
hazardous substances, (2) from a facility.
The key additional element for a Section 106 action,
aside from liability, is that there be a condition which
presents or may present an imminent and substantial
endangerment to public health or welfare or the environment.
Evidence on this subject generally will be available through
the results of activities undertaken pursuant to Subpart F -
Hazardous Substance Response of the NCP (40 C.F.R. Part 300 et
seq.). The endangerment assessment/risk assessment typically
contained in the RI, or as a separate document, is the
critical piece of information.
The evidence to support these three elements of the
Section 106 prima facie case should be addressed in and be
part of the RI and FS and will be documented in the ROD as
part of the Agency's remedy selection decision. The remedy
selection decision .in the ROD itself should define the
injunctive relief EPA will seek and should be upheld if it is
supported by the administrative record and is not arbitrary
and capricious.18
Of course, to complete the CERCLA Section 106 prima facie
case, the United States will still.have to present evidence on
liability (i.e., that the party is a responsible party
(including but not limited to these classes of persons liable
under CERCLA Section 107(a))) and may have to present evidence
showing that any alleged affirmative defenses under Section
107(b) are inapplicable,19 both of which might be reviewed by
the-court de novo. See. Section IX., above.
17 To assist in ensuring record review of the remedy
selection decision, the Region also should typically
issue a unilateral administrative order under CERCLA § 106 after
the ROD is signed.
18 The case law on the standard of review for remedy
selection decisions in the context of CERCLA Section
106 actions that were filed pre-SARA has been split. However, it
is the Agency's position that record review with an arbitrary and
capricious standard is applicable.
19 The Section 107(b) defenses to liability typically are
available in Section 106(a) actions for injunctive relief
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28 9835J1-1
B. RCRA Section 7003 (See Appendix I)
The prima facie case for RCRA Section 7003 is slightly
different than that for CERCLA Section 106. Success on the
merits under RCRA Section 7003 requires proof of the following
elements:
o Fast or present handling, storage, treatment,
transportation20 or disposal,
o of a hazardous or solid waste,
o may present an imminent and substantial endangerment
to health or the environment, and
o the party has contributed or is contributing to such
handling, storage, treatment, transportation or
disposal.
If a RCRA § 7003 count (or other non-CERCLA statutory
"endangerment" claim) is proposed, causation and record review
of remedy selection will probably be raised by defendants."
Since RCRA does not on its face provide for record review, and
the reach of CERCLA Section 106 and RCRA Section 7003 is
generally coextensive,21 the referral should identify the
specific reason for inclusion of the RCRA § 7Q03 (or other
."endangerment") claims.
These RCRA § 7003 prir.a facie case elements are discussed
briefly below and mere extensively in Appendix I:
1. Past, or present handling, storage, .treatment,
transportation or disposal.
Describe the facility or PRP activities that come
within the meanings of these terms. (^'Treatment",
"storage" and "disposal" are all defined in RCRA
§ 1004.)
2. Hazardous or solid waste.
Each material that is the subject of the referral
for which liability is sought to be imposed must be
20 Note that RCRA § 7003 contains an exemption from
liability for certain transporters, similar to the
exemption in CERCLA § 101(20).
21 RCRA Section 7003 applies to "solid 'or,*hazardous
. wastes," which is a'broader universe of. materials than
"hazardous substances."
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29
9835,1 1-
, '. identified as a hazardous waste or a solid waste.
See. RCRA §§ 1004(5) and 1004(27), respectively.
See also. 40 C.F.R. 261.3 and 40 C.F.R. 261.2,
which, while not directly governing Section 7003
actions, also delineate materials as hazardous
wastes due to their characteristics or because they
are specifically listed as such in the regulations.
3. May present an imminent and substantial endangerment to
health or the environment.
Although we will argue for record review in these
cases, additional evidence may need to be adduced.
A discussion of the types of evidence that may be
needed to support this element of the RCRA
§ 7003 case is included in Appendix I.
4. The party has contributed or is contributing to such .
handling, storage, treatment, transportation or disposal.•
This aspect of the RCRA §7003 prima facie case may
be an additional, different burden than faced under
CERCLA. The referral must discuss the available •
documentary and testimonial evidence that will be
used to show that a particular generator's waste (or
at least the same type of waste when the wastes have
commingled), or an owner/operator's actions "has
contributed or is contributing to" a situation that
may present an imminent and substantial
endangerment.
XIV. Other Legal Issues
A. Potential defenses/exclusions (other than those noted
in Sections IX.B.I.}., IX.B.2.J. and IX.C., above).
B. Statute of limitations
See. Section XI.E. , above, regarding the CERCLA
statute of limitations. Since RCRA contains no
specific statute of limitations, underlying facts
relating to the timing of any'action under RCRA,
including any potential limitations, should be
included.
C. Applicability of prior consent decree or A.O. entered
for this site. See. Section X.F., above.
D. Res judicata/collateral estoppel/equitable estoppel.
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9835JH
XV. 'Litigation/Settlement Strategy
A. Case Management Planning
1. A preliminary draft case management plan should be
prepared. See "Case Management Plans" (Adams/
Marzulla 3/11/88). Availability of and proposed
assignments for Regional legal and technical
personnel should be noted in the draft plan.
B. Settlement Negotiations
1. Prior efforts to settle.
Describe history or attempts to settle by way of
notice/demand/special notice letters, PRP meeting,
. etc.
2. Special notice
Discuss whether special notice was sent and the
results. See. "Interim Guidance on Notice Letters,
Negotiations, and Information Exchange" (OWPE,
10/19/87)
3. History of'negotiations.
Describe'nature, extent and duration of prior or
ongoing settlement discussions regarding subject of
this referral, or negotiations concerning other
pending environmental civil or administrative
actions. (When available, include discussions and
attempts to settle by State.) Describe attempts at
compromise and why process failed. Attach a copy of
latest version of AO or CD discussed with PRPs
before negotiations were terminated.
4. Planned Future Negotiations
If additional negotiations are to be pursued
immediately after filing, include a brief settlement
evaluation (See. Interim CERCLA Settlement Policy,
50 Fed. Reg. 5034), recommending a bottom line and a
suggested negotiation strategy. See also. "DRAFT
CERCLA RD/RA Settlement Negotiations Checklist"
(OECM, 01/26/88).
a. State whether this case may be appropriate
for.mixed funding. See. "Evaluating Mixed
Funding Settlements under CERCLA" (OECM/OSWER,
10/20/87).
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983S1 1-
ii
b. State whether this case has the potential for
de minimis settlements. See. "Interim Guidance
On Settlements with De Minimis Waste Con-
tributors under SARA Section 122(g)"
(OECM/OSWER 06/19/87)(52 Fed. Reg. 24333,
06/30/87) .
5. Include discussion of and a copy of any Non-Binding
Preliminary Allocation of Responsibility (NEAR) and
responses by PRPs.
See. "Interim Guidelines for Preparing
Preliminary Non-Binding Allocations of
Responsibility" (OSWER, 5/16/87)(52 Fed. Reg.
19919, 5/28/87).
C. Litigation Strategy
1. Discovery22
Indicate general need for obtaining evidence
(especially for critical facts) by discovery
(interrogatories, depositions and requests for
admissions) on issues of. liability and, in certain
instances, response costs. (Include names and
addresses, if available, of potential witnesses and
the evidence to be sought from such persons.)
Discuss the approach to be taken in managing
discovery and document production if the action
involves multiple parties or massive numbers! of
documents.
2. Summary Judgment
Indicate if case has potential for summary judgment
or partial summary judgment and on what issues.
Explain briefly.
XVI. Other imminent Hazard Provisions
The referral should carefully consider whether claims exist
under the imminent hazard provisions of the other Federal .
statutes listed below. The Appendices to the RCRA/CERCLA Case
Management Handbook describe and discuss each element of
22 Despite the availability of record review fcr
issues regarding the-adequacy of remedy sel€:Ction,
discovery will be available for certain other aspects ol: CERCTA
cases, such as for issues regarding liability.
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32 9835.1 ]-/
pro'of, listed below, for these other statutes and should be
consulted.
A. Clean Air Act § 303. 42 U.S.C. § 7603
1. A pollution source or combination of sources
(including moving sources) [See, 42 U.S.C.
§§ 7521-7574; 42 U.S.C. § 7602(j)],
2. is presenting an imminent and substantial
endangerment to the health of persons.
3. State and local authorities have not acted to
abate such sources.
4. Defendant is a person causing or contributing to the
alleged pollution.
5. EPA has confirmed the correctness of its
information.
B. Clean Water Act § 504. 33 U.S.C. S 1364
The Administrator may seek injunctive action to stop
the discharge of pollutants or take such other action as
may be necessary (See. CWA §§ 504 (a), 502(12), (6) ,.' (7) ,
(9), (10), (14)) where the Administrator receives
evidence that:
1. A pollution source or combination of sources [See,
CWA § 504(a), 502(19), (12), (6), (7), (14), (9),
(10) , 306(a) (3)],
2. is presenting an imminent and substantial
endangerment to (1) the health of persons or (2)
to the welfare of persons where such endangerment is
to the livelihood of such persons, such as
inability to market shellfish [504(a)].
3. Defendant is a person causing or contributing to
. the. alleged pollution [504 (a), 502(19)]. See also.
discussion on RCRA § 7003, Section XIII.B., above.
C. Safe Drinking Water Act S 1431. 42 U.S.C. S 300i
The Administrator may seek appropriate relief to protect
health of- affected persons, including injunctive relief,
when the Administrator is in receipt of evidence that:
1. A contaminant or contaminants [§ 300i(a),
§ 300f(6)],
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33 9 &3 5.1 H
2. present in or likely to enter [§ 300i(a)],
3. a Public Water System [§ 300i(a), §300f (4)] or
an underground source of drinking water,
4. may present an imminent and substantial
endangerment to the health of persons, and
5. appropriate State and local authorities have not
acted to protect the health of such persons.
6. Where practicable, EPA consulted with State and
local authorities.
7. Information on State or local action taken, if
any. (Note: This provision is silent as to
definition of responsible parties.)
XVII. Witnesses/Litigation Support
A. Witnesses
1. For fact witnesses identified in .the litigation
report that have potentially relevant information,
the following should be referenced in the referral
package:
o Present place of employment
o Home and business phone
o Substance of testimony
o Whether statement is on file.
2. For potential expert witnesses, the following are
required in addition:
o Field of expertise (include resume and any
reports generated by expert regarding this site
or facility)
o Whether individual is under EPA contract, and
if so through what contracting mechanism.
o Other cases where the expert has testified,
been deposed or otherwise been retained in the
past.
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9835.1 1-1
34
3. Potential adverse witnesses (fact or expert) should
also be identified, to the extent known, and the
substance.of their potentially adverse testimony
should be indicated.
B. Litigation Support
1. Identify any contractor resources necessary and
present plans for procuring such resources.
2. Provide an'estimate of the relative resource demands
that the Region anticipates will be required for the
proposed litigation and indicate any specific
workload model projections attributed to this case.
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98 3 5,1 H
PRIMA FACIE CASE
RCRA § 7003;
(42 U.S.C. § 6973)
This document was prepared
as suggestion and guidance
only.
FACTS TO BE PROVEN
STATUTORY BASIS
COMMENTS
I. Administrator must
present evidence of:
A. i. Handling,
2. Storage,
3. Treatment,
4. Transportation,
or
5. Disposal
1004(33)1/
1004(34)
1004(3)2/
B. Of either:
1. Solid Waste,
or
1004(27)
40 C.F.R.
261.2
2. Hazardous Waste
1004(5)
40 C.F.R.
261.3
Disposal includes when waste is
first deposited, dumped, spilled,
or placed onto the ground and also
when wastes later migrate. It
includes leaking (i.e.,
discharging and "repositioning")
as well as "reposing" wastes.
See. U.S. v. CCC. 619 F. Supp.
162, 199-200.
Very broad definition of solid
waste, but note specific
exceptions. See also. American
Mining Congress v. EPA. 824 F.2d
1177 (D.C.-Cir. 1987) holding that
EPA exceeded its authority under
RCRA in seeking to regulate as
"solid wastes" secondary materials
reused in an ongoing manufacturing
process. See also, 53 Fed. Reg.
519 (January 8, 1988), for EPA's
interpretation of that decision.
The definition states that a waste
is hazardous if it "may...cause,
or significantly contribute to an
increase in illness or mortality,
or if it "may...pose a substantial
present or potential hazard to
human health or environment" when
managed. These terms indicate a
scope broader than the strict,
conventional "causation."
Listing in RCRA regulations (4C
I/ 42 U.S.C. § 6903 is the definitions section of RCRA.
2/ See also Hazardous Materials Transportation Act,
49 U.S.C. §§ 1801, 1802(6-, 1809, 1810.
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- 2 -
FACTS TO BE PROVEN STATUTORY BASIS
COMMENTS
C. May present
C.F.R. Part 261) or e
it is a "characterist
under Part 261 is sui
.establish that a mate
"hazardous waste."
D. An imminent and
Imminence applies to
threat rather than t
identification of th
'the endangerment act
materialized.3/ An.
is imminent if factc
to it are present, e
harm may not be real
years. U.S. v. CCC.
162, 193 (W.D. Mo. J
substantial endangerment
An endangerment is i
an actual harm but :
from threatened or ;
no actual injury ne
Evidence must show
harm. See. CCC at
Corp. v. EPA. 541,
Cir. 1976), cert, d
941 (19.76) ; United
Reserve Mining. 514
Cir., 1975); United
Vertac, 489 F. Supp
(E.D. Ark. 1980).
U.S. need not quant
establish endanger?
endangerment is sul
there is reasonabl*
3/ H.R.. Committee Print (96-IFC 31, 96th Cong. 1st Sess. 3
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- 3
9835J H
FACTS TO BE PROVEN STATUTORY BASIS
COMMENTS
E. To
1. Health, "or
2. The environment
concern that someone or something
may be exposed to risk of harm by a
release or threat of release if
response action is not taken. CCC
at 191-197.
See also legislative history and
case law interpreting other
"endangerment" provisions of Federal
law, including §§ 504(a) and 311(e)
of the Clean Water Act, § 1431 of
the Safe Drinking Water Act, §
303(a) of the Clean Air Act, § 7 of
the Toxic Substances Control Act; §
6(c) of the Federal Insecticide,
Fungicide and Rodenticide Act; §
2601 of the Consumer Product Safety
Act; § 662 of the Occupational
Safety and Health Act; § 1810(b) of
Hazardous Materials Transportation
Act; § 15.11 (b) of the Deep Water
Ports Act; § 1415 of the Marine
Protection, Research and
Sanctuaries Act, and § 355(e) of
Federal Food, Drug and Cosmetic
The term incorporates surface water,
groundwater, soil, and air, and
probably includes fish, mammals,
biota, and plant life.
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9835'1
FACTS TO .5E»PROVEN STATUTORY BASIS
COMMENTS
II. Liable Persons
III. Relief:
A. To restrain liable
persons fron:
1. Handling
2. Storage 1004(33)
3. Treatment 1004(34)
4. Transportation
5. Disposal 1004(3)
Any person (including any past or
present generator, past or present
transporter, or past or present
owner or operator of a treatment,
storage or disposal facility) who
has contributed or who is
contributing to the alleged
handling, storage, treatment,
transporation or disposal of a
solid or hazardous waste that may
present an imminent and substantial
endangerment to health and
environment. Such liable persons
may include owners or operators of
the site, former owners or
operators, (both of which may
include landowners or lessors),
corporate officers and directors
(in their official and, in
appropriate circumstances,
individual capacities) waste
generators, and (unless exempted by
§ 7003) waste transporters. See.
e.g., U.S. v. Aceto Agricultural
Chemicals Corp.. No. 88-1580 (8th
Cir. April 25, 1989), U.S. v.
NEPACCO. 810 F.2d at 740, 745 (8th
Cir. 1986), cert, denied 108 S.Cr.
146 (1987) ; U.S. v. CCC. 619 F.
Supp. at 198.
Included in relief granted by
courts in § 7003 actions are:
restraint of continued leaking,
requirement to undertake
investigative activities (Price.
688 F.2d 204 (3rd Cir. 1982));
preparation and implementation of
plans for removal of wastes
(Midwest Solvents Recovery.484 F.
Supp. 138 (N.D. Ind. 1980));
injunction against further
activities on site, formulation of
plans for security and removal of
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- 5 -
98 3 5.1 H
FACTS TO BE PROVEN STATUTORY BASIS
COMMENTS
B. To order such other
action as may be
necessary
wastes (Ottati and Goss. civil N
C80-225-L (D. N.H.)(Memorandum
opinion December 2, 1980)). See
also, U.S. v. Diamond Shamrock,
Civil No. C80-1857 (N.D.
Ohio)(Memorandum Opinion, May 29,
1981).
Authorizes affirmative equitable
relief to extent necessary to
clean up-site. See. Price. 688
F.2d at 213-14; CCC, 619 F. Supp.
162, 201.
C. To recover U.S.
expenditures
A right to recovery Federal funds
has been implied since Section
7003 does not contain any express
authority to seek cost recovery.
See. U.S. v. NEPACCO. 810 F.2d at
747; U.S. v. Price. 688 F.2d 214;
U.S. v. CCC. 619 F. Supp. at 201.
See also, Wyandotte Trans. Co. v.
U.S. 389 U.S. 191 (1967)(Clean
Water Act); U.S. v. Moran Towing
and Transportation Co., 409 F.2d
961 (4th Cir. 1969)(Clean Water
Act); Restatement. Torts § 919(1).
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