\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
ul
O
*
WASHINGTON, D.C. 20460
APR 3 0 1993
DIRECTIVE NO. 9320.1-11
OFFICE OF
SOLID WASTE AND EMERGENCY
MEMORANDUM RESPONSE
SUBJECT: Discussions with the Public Concerni/fg NPL Listings
FROM: Henry L. Longest II, Director
Office of Emergency and Remedia
TO: Waste Management Division Directors, Regions I, IV, V,
VII
Hazardous Waste Management Division Directors, Regions
III, VI, VIII, IX
Acting Director, Hazardous Waste Division, Region X
Director, Emergency and Remedial Response Division,
Region II
PURPOSE
This memorandum briefly outlines EPA's policy on site-
related discussions prior to and during rulemaking concerning the
listing of sites on the National Priorities List (NPL).
BACKGROUND
Recently some Regions, as well as several members of
Congress, have raised the question of what types of site-related
discussions are permissible between EPA personnel and the public
(e.g., potentially responsible parties (PRPs) or commenters)
prior to and during the listing process.
IMPLEMENTATION
The Administrative Procedure Act (APA) does not forbid
contact between the Agency and interested parties either before
or during rulemaking. It is EPA policy, however, not to disclose
its internal deliberations concerning listing decisions except
through the formal rulemaking process. Improper disclosure of
such deliberations may inhibit the free exchange of ideas within
the Agency, and can give rise to APA notice and comment and
Freedom of Information Act legal concerns. If such contact
occurs, discussions with and disclosures to non-Agency personnel
concerning listing decisions prior to and during rulemaking
should be made in accordance with this directive, which is
Recycled/Recyciab*
Printed wttti Soy'CraM « » i
contains it least SON'
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consistent with the APA and is designed to prevent improper
disclosure of Agency deliberations. See memorandum dated May 31,
1985, from Lee M. Thomas to EPA employees (attachment I) entitled
"Contacts with Persons Outside the Agency" and OSWER directive
9345.1-12 dated December 26, 1991, (attachment II) entitled
"Releasi-bility of HRS Documents Under FOIA."
PRE-PROPOSAL
Prior to proposal, disclosures to non-Agency persons
requesting information about the Agency's evaluation of sites for
placement on the NPL should be limited to a general description
of the Agency's process for evaluating sites; a general
indication of the status of sites in that process (i.e., at the
PA, SI, SEA, or further evaluation for listing stage); and a
general, factual, non-controversial description of site
conditions. Agency deliberations regarding listing issues should
not be disclosed orally or in writing. Prior to proposal, site
scores should not be discussed and copies of the site scoring
package should not be released to the public due to their pre-
decisional nature.
DURING RULEMAKING (between proposal to NPL and final decision)
The strictures of the APA further heighten concerns about
improper disclosure of Agency deliberations during the rulemaking
process, other than formal statements made during the rulemaking
process, disclosures to non-Agency persons requesting information
about the Agency's evaluation of sites for placement on the NPL
should be limited to a general description of the Agency's
process for evaluating sites; a general description of the
rulemaking process; and information in the public docket. Agency
deliberations regarding listing issues should not be disclosed
orally or in writing outside the formal rulemaking process.
TIMING OF RULEMAKING DECISIONS
EPA's longstanding policy has been that it does not inform
the public and interested parties of either the proposed or final
rule in which a site is expected to appear (i.e., EPA does not
project whether a particular NPL site will be included in a
particular proposed or final rule); nor does EPA agree to delay
final listing. However, it is appropriate to provide copies of
preliminary assessments (PAs) and site inspections (Sis), which
are public documents, and indicate whether the site has been
"screened out," or is still in the NPL decision-making process.
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MEETINQ8 OR CONVERSATIONS WITH INTERESTED PERSONS
Prior to and during rulemaking, Agency personnel sometimes
receive requests to meet or have conversations with persons
interested in sites being evaluated for listing. Agency
personnel may hold such meetings or conversations, although any
other party interested in the particular site also should have
similar opportunities for such a meeting or conversation.
Agency deliberations regarding listing issues should not be
disclosed orally or in writing during such meetings or
converations.
It is important that the final rulemaking decision on site
listing reflect all of the information considered by the Agency.
Therefore, for meetings or conversations held during rulemaking,
a memorandum summarizing any oral communication regarding
significant new factual data or information likely to affect the
Agency's final decision on the rule should be placed in the
public docket along with any written materials provided to the
Agency. Attendees should also be advised to forward in writing
to Headquarters any significant comments they may have.
EXTENSIONS OF THE COMMENT PERIOD AND LATE COMMENTS
Formal extensions of the comment period must come from
Headquarters. Generally, EPA does not grant extensions unless
the Agency has erred procedurally. For example, if EPA places an
incomplete documentation record in the public docket, the comment
period may be extended for the period of time that lapsed before
a complete record is provided.
Any information received during rulemaking after the comment
period has closed will be treated as a late comment. In past
rulemakings, EPA has attempted to respond to late comments, or
when that was not practicable, to read late comments and address
those that may have identified a fundamental error in the scoring
of a site. However, EPA guarantees only that it will consider
and respond to those comments postmarked by the close of the
formal comments period (57 FR 47205, October 14, 1992).
FEDERAL FACILITIES
Generally, questions relating to Federal facilities should
be treated the same as questions posed for any other site. The
exception is that Regions should notify the affected Federal
facility immediately prior to submittal of proposed and final
rules to the Office of Management and Budget for review.
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I hope that this memorandum will be of help to both you and
your staffs in meeting with PRPs and other parties interested in
site listing issues. If you have any questions regarding this
information, please contact Janet Grubbs at (703) 603-8860.
cc: Supferfund Branch Chiefs, Regions I-X
Earl Salo, OGC
Sally S. Mansbach, OWPE
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Attachment I
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
'«<»« WASHINGTON. D.C. 20460
MAY 31 1985
THE ADMINISTRATOR
MEMORANDUM ;
TO: AT 1 EPA Employees
SUBJECT: Contacts With Persons Outside The Agency
I want to take this opportunity to reaffirm the guidelines
established by former Administrator William D. Ruckelshaus con-
cerning EPA contacts with persons outside of the Agency. The
success of our efforts at EPA 1s directly dependent on the trust
of the public we serve. To earn and maintain that trust, we must
operate 1n an open manner, we must be responsive, and we must
conduct our business 1n as fair a manner as possible. I believe
that the guidelines set out below will serve to maintain the
fairness and openness of our procedures and the public's confidence
in our decisions.
General Principles
EPA will provide, in all its programs, for the fullest .
possible public participation in decisiorimaking. This requires
not only that EPA employees remain open and accessible to those .
representing all points of view, but also that EPA employees
responsible for decisions take affirmative steps to seek out the
views of those who will be affected by the decisions. EPA will
not accord privileged status to any special Interest group, nor
will 1t accept any recommendation without careful critical
examination.
Appointment Calendars
In order to make the public fully aware of my contacts with
interested persons, 1 have directed that a copy of my appointment
calendar for each week continue to be placed 1n the Office of
Public Affairs and made available to the public at the end of the
week. The Deputy Administrator, and all Assistant Administrators,
Associate Administrators, Regional Administrators, and Staff
Office Directors shall make their appointment calendars available
in a similar manner.
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Litigation and Formal Adjudication
EPA is engaged 1n a wide range of litigation, both enforce-
ment and defensive In nature. All communication with parties In
litigation must be through the attorneys assigned to the case.
Program personnel who receive Inquiries from parties 1n matters
under litigation should Immediately notify the assigned attorney,
and should refer the caller to that attorney.
Formal adjudications, such as pesticide cancellation
proceedings, are governed by specific requirements concerning
ex parte communications, which appear 1nthe various EPA rules
governlng those proceedings. These rules are collected and
available 1n the Office of General Counsel, Room 545, West Tower.
I will conduct myself 1n accordance with these rules, and I expect
all EPA employees to do the same.
Rulemalclng Proceedings
In rulemaklng proceedings under the Administrative Procedure
Act, EPA employees must ensure that the basis for the Agency's
decision appears 1n the public record. Therefore, be certain
(1) that all written comments received from persons outside the
Agency (whether during or after the comment period) are entered
1n the public record for the rulemaklng, and (2) that a memorandum
summarizing any significant new factual data or Information
likely to affect the final decision received during a meeting or
other conversations Is placed In the public record.
You are encouraged consistent with statutory responsibilities
to reach out as broadly as possible for views to assist you 1n
arriving at final rules. However, you should do so In a manner
that ensures that final decisions are supported by the public
record and the Agency's rationale Is fully explained 1n the
preamble to the final rule. This does not mean that you may not
meet with one special Interest group without Inviting all other
Interest groups to the same meeting, although all such groups
should have an equal opportunity to meet with EPA. It does mean,
however, that any oral communication regarding significant new
factual data or Information affecting a rule, Including a meeting
with an Interest group, should be summarized 1n writing and
placed 1n the public record for the Information of all members of
the public. In addition to these guidelines, procedures have
been established with OMB to ensure that such material received
by OMB from outside parties will be placed In the EPA public
record.
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Flnally, 1n our dealing with the press, I would urge EPA
employees also to be open and accessible. While 1t 1s Important
that those who speak to the press concern themselves only with
their particular area of expertise, nothing 1s served by any
program limiting contacts with the press. I ask that you Inform
your Assistant Administrator's office and the EPA Press Office
about your official contacts with the press.
I know that I can rely on EPA employees to use common sense
and good judgment In their dealing with the public. The openness
and integrity in those dealings are essential to ensuring public
trust in the Agency.
_D
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Lee M. Thomas
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Attachment II
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. C.C. 20460
DEC 2 6-199,
SOUlO WAStT. AND EMERGENCY RESPONSE
OSWER Directive 9345.1-12
MEMORANDUM
SUBJECT: Releasability of HRS Document,
FROM:
TO:
Henry L. Longest II, Direct
Office of Emergency and Rem&dia"
Director, Waste Management Division
Regions I, IV, V, VII, VIII
Director, Emergency and Remedial Response Division
Region II
Director, Hazardous Waste Management Division
Regions III, VI, IX
Director, Hazardous Waste Division, Region X
PURPOSE:
This memorandum is to provide guidance to the Regions on
what Hazard Ranking System (HRS) material is considered
releasable under the Freedom of Information Act (FOIA).
BACKGROUND:
The issue of what HRS materials are considered releasable
under FOIA has not been addressed consistently by all Regions. A
July 9, 1991, memorandum from Allyn Davis of Region VI requested
guidance on this issue. In addition, several other Regions have
requested guidance from my staff on issues of FOIA releasability
for NFRAP (no further remedial action planned) sites and sites
being deferred to other authorities. This memorandum responds to
those questions.
OBJECTIVE:
The objective is to ensure Regional consistency by providing
direction on releasability under FOIA of HRS documents.
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DISCUSSION/IMPLEMENTATION:
The Office of General Counsel (OGC) has prepared guidance
outlining the Agency's policy regarding the releasability of HRS
information (see attachment 1). This OGC memorandum addresses
the extent to which materials prepared in the site assessment
process may be withheld as "deliberative" in response to FOIA
requests. Additional background information on the grounds for
refusing disclosure of the contents of the HRS package are
discussed in a January 16, 1986, memorandum finalizing the
decision on a FOIA appeal (attachment 2). The OGC guidance is
summarized in general terms as follows:
Materials underlying a "no further remedial action
planned" (NRAP) decision are releasable.
Draft HRS scoring sheets may be withheld.
For sites that are under consideration for the NPL, but
not yet proposed, the HRS scoring sheets, documentation
record, and factual material need not be disclosed.
HRS scores for RCRA deferral sites may be withheld.
The OGC guidance addresses our legal obligations, while pointing
out (in attachment 1) that the Agency has the flexibility to
release documents which we may legally withhold. However, it is
Agency policy not to release these documents unless we are
required to do so.
This guidance should answer many of the FOIA-related
questions that the Regions have. It should be noted that the
advice given here is general in nature, and in specific cases it
is advisable to consult a regional or OGC FOIA attorney.
cc: Janet Grubbs
George Wyeth
Alan Margolis/'
Attachments
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Attachment
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
nrr 17 1991
' OFFICE OF
MEMORANDUM GENERAL COUNSEL
SUBJECT: Treatment under FOIA of Documents Generated in Site
Assessment Process
FROM: George B. Wyet*
Attorney
Solid Waste and Emergency Response Division (LE-132S)
Alan Margolis
Attorney ff
Grants, Contracts and General Law Division (LE-132G)
TO: Janet Grubbs
Site Assessment Branch
Office of Solid Waste and Emergency Response (OS-230)
At the May 1991 Site Assessment Section Chiefs' meeting, and
on a number of occasions more recently, questions have come up
regarding the extent to which materials prepared in the site
assessment process (particularly preliminary HRS scoring sheets)
may be withheld as "deliberative" in response to FOIA requests.1
This memorandum responds to those questions; it should be noted
that the advice given here is general in nature, and in specific
cases it is advisable to consult a regional or OGC FOIA attorney.
Moreover, this advice is not intended to bind the Agency in
connection with final agency determinations on FOIA appeals.
First to be protected under FOIA as deliberative, documents
must be (1) predecisional (i.e., prior to the adoption of an
agency policy or decision), and (2) deliberative (i.e., making
recommendations or expressing opinions on legal or policy
matters.) Draft HRS scores would generally fall within this
category. A draft that is adapted as final agency policy is no
longer protected (however, such scores are made public in the
docket at the time a site is proposed for the NPL anyway) .
1 Documents that are not protected under FOIA are
commonly referred to as "releasable." It should not be inferrr-i
that the Agency must always exercise its right to withholi
documents; exercise of a FOIA exemption is a matter of Agenc/
discretion. The Agency may choose to release deliberative or
other privileged documents; it simply need not do so. In
general, however, the Agency's practice has been not to release
draft HRS scoring sheets, for policy reasons.
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Factual material in the agency's possession is not deliberative
and must generally be released.
One question raised at the Section Chiefs' meeting had to do
with releasing information after a site is assigned "no further
action" status ("NFRAPed"), based on its HRS score. A NFRAP
determination is neither predecisional nor deliberative and may
not therefore be withheld pursuant to the deliberative process
prong of FOIA exemption 5. Therefore, materials underlying the
NFRAP decision are not withholdable under the deliberative
process privilege or other FOIA exemptions (e.g., the final score
and supporting scoring sheets), and are considered releasable.2
Draft scoring sheets would, however, not be releasable.
A related question had to do with the status of preliminary
HRS scoring sheets that is, sheets other than the ones that
formed the basis for a final decision (either to list or to
NFRAP). Often, preliminary HRS scores are calculated which are
superseded as the analysis is refined or new data is obtained.
To the extent these are retained, they remain deliberative and
need not be disclosed. This is true even after a final score has
been determined. This is to ensure that staff feel free
preparing tentative scores based on a partial analysis, without
having to fear that the preliminary scores will be used against
the Agency later.
A third FOIA-related question recently came from one of the
regions. Since the answer may be of more general interest, we
thought we would include it here. The region had received a
request for all documents contained in the HRS scoring package
for a site that is being considered for proposal to the NPL, but
has not yet been proposed. The HRS scoring sheets, including the
documentation record, are clearly deliberative at this stage, and
need not be disclosed. In addition, factual material in the
package (i.e., factual references) need not be released. While
factual material in the Agency's files is normally releasable,
releasing materials in response to a request for "the HRS
package1* necessarily identifies particular factual material as
being contained in a draft HRS package and thus sheds light on
the nature of the Agency's analysis. Therefore, the contents of
2 Other grounds for denying release include FOIA
exemptions (b)(7)(A), which covers enforcement-sensitive
documents and (b)(5), which, in addition to the deliberative
process privilege, also incorporates the attorney-client
privilege and the attorney work product privilege (i.e.,
materials prepared in, or in anticipation of, litigation) . Tl.ase
exemptions (aside from the deliberative process application of
(b)(5)) would not appear to be generally applicable to site
assessment materials, although they might be applicable in
particular cases.
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the package need not be disclosed.3 (Of course, if the site is
later proposed, the scoring package and supporting materials
would become releasable, but they would then be made public in
the docket anyway.)
The relationship between EPA and states raises significant
FOIA questions as well. Communications from states that are
deliberative in nature (i.e., communicating advice or opinions
regarding the potential listing of a site) appear to be
protected. Although there is only limited case law on this
point, at least one court has held that material from state
agencies sent to a federal agency for the purpose of giving the
federal agency advice on a matter under consideration is
generally privileged.
Agency staff should bear in mind that during a rulemaking
(i.e., after a site has been proposed in the Federal Register and
before it goes final), communications from states, especially
communications outside the normal course of implementing a
cooperative agreement, may present a more complex issue.
Communications in rulemaking will be discussed in a separate
memorandum.
Agency staff should also keep in mind that documents
originating at EPA and sent to states are subject to state FOIA-
equivalent laws. Such laws may vary in the degree of
confidentiality allowed. Regions may have to discuss with the
state agencies they deal with what the rules are in those states
before sending material that they may not want to have disclosed.
Finally, a question came up recently about whether MRS
scores for sites that have been deferred to RCRA may be withheld.
If the score is in fact a preliminary draft (which is generally
the status of any HRS score for a site that has not been either
proposed for listing or NFRAPed based on the score), it need not
be released. This is not affected by the fact that the site is
no longer being considered for listing, if the reason it is no
longer being considered is deferral to RCRA rather than its HRS
score. In short, HRS scoresheets for sites that have been
deferred to RCRA remain deliberative and need not be released.
I hope that this helps to answer the questions you raised.
If you have any further questions, please do not hesitate to
contact us.
'This is discussed further in a final determination of a
FOIA appeal that was issued on January 16, 1986. A copy of '
determination is enclosed herewith.
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'l Attachment 2
J UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
<- WASHINGTON. O C. 20460
JAN I 6 1986
Janet S. Hathaway, Esq.
Public Citizen
215 Pennsylvania Ave, S.E.
Washington. D.C. 20003
RE: Freedom of Information Act Appeals
RIN 385A-85
R1N(5) 185A-85 (Region V)
RIN(4) 204A-85 (Region IV)
R1N(8) 75A-85 (Region Vlll)
RIN(l) 93A-85 (Region I)
Dear Ms. Hathaway:
This letter represents a consolidated response to yo'ur five
Freedom of Information Act (FOIA) appeals. Set forth below
Is a description of each of your FOIA requests.
1. RIN 3B5A-85. By letter dated January 28, 1985, you
requested copies of the list of all hazardous waste sites
for which a Superfund Hazardous Ranking System score ("MRS
score") had been calculated, along with the scores assigned
to those sites. You requested scores for sites which had
been Included on the Superfund National Priorities List
("NPL"). both final and proposed, as well as sites which the
Agency had not Included on the NPL. Specifically, for each
site, you requested the following scores:
1) Potential for harm to humans or the environment
from migration of hazardous substances (Sra);
2) Groundwater route (Sgw);
3) Surfacewater route (Saw);
A) Air route (Sa);
5) Potential for harm from substances that can
explode or cause fires (Sfe); and
6) Potential for harm from direct contact wit^ hazardous
substances (Sdc).
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You also requested the worksheets used to calculate the
HRS, if available, for any site with an HRS score above 20.
EPA responded to this request by letter from
Walter V. Kovalick, Jr.. Deputy Director, Office of Emergency
and Remedial Response, on February 15, 1985* In that letter,
you were informed that you were receiving a lift of all HRS
scores that had been reported to EPA, except the names and
draft scores of sites then being considered for inclusion in
an upcoming revision to the NPL. You were informed that the
EPA was withholding the latter information under the deliberative
process privilege of 5 U.S.C. «552(b)(5). Mr. Kovalick noted
that you had additional conversations with Steve Caldwell of
EPA regarding your request for HRS worksheets for sites
scoring above 20. and that you had agreed to defer requests
for copies of HRS worksheets until after you received the
list of scores. Mr. Kovalick's letter also noted that you
had a conversation with Steve Caldwell concerning the fact
that you would receive only HRS total scores (Sm) for 486
sites because these sites had been scored but not submitted
to Headquarters as candidates for the NPL. Accordingly. EPA
Headquarters did not have information on the individual
pathway scores for those sites.
You appealed EPA's partial denial of your request by letter
of March 5. 1985, appealing only the denial of access to the HRS
and pathway scores of sites under consideration for inclusion
in the upcoming revision to the NPL.
2. (S)RIN 185A-85. By letter dated March 5. 1985. to Region
V. you requested copies of HRS worksheets. Documentation Records,
EPA Form 2070-13, and Narrative Summaries for sites listed in
that letter. You requested that EPA indicate which of the
listed sites were proposed for listing on the NPL and you
requested pathway scores for each site. You also requested
documents explaining the reasons for not including sites with
HRS scores above 28.5 on the NPL.
EPA Region V responded to your request in July 10, 1985,
letter from Basil G. Constantelos, Director. Waste Management
Division. With this letter you received HRS scoring documents
for 24 of the requested sites, as veil as two additional
sites which were withdrawn from consideration as NPL candidates.
You did not receive any documents for six sites wulch were
not being considered for inclusion on the NPL at this tine
but were being addressed under the Resource Conservation anH
Recovery Act ("RCRA").
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These sites were:
1) Texaco Refinery, Lawrenceville, IL;
2) Conservation Chemical. Gary, IN;
3) Bendix Corporation, South Bend, IN;
4) DuFont, E.I., East Chicago. IN;
5) Union Oil a/k/a Ramp Creek. Ashland Oil. Heath. OH; and
6) Wayne Disposal. Inc. Site «2, Belleville. MI.
You were also denied access to HRS documents on seven
additional sites which were being considered for inclusion on an
NPL update. These documents were withheld pursuant to 5 U.S.C.
I552(b)(5) as predecisional. deliberative documents.
Since the date your appeal was filed, two of these sites,
Columbus Old Municipal Landfill «1 , Columbus. IN, and Hagen
Farm, Stoughton, VI. were proposed for the NPL. Documents
pertaining to those sites have been released to you. The
remaining five sites for which documents were withheld are:
1) Carpentersville, Carpentersvllle, IL;
2) Joe Boar Property. Columbus, IN;
3) Energy Cooperative, Inc.. East Chicago, IN;
A) NorthEast Gravel, Grand Rapids. MI; and
5) Sanford Dump, Rives Junction, MI.
The withheld documents for each site consisted of HRS
worksheets. Documentation Records and Reference Documents.
No Narrative Summaries were prepared for any of the sites.
You appealed this partial denial of your request by your
letter of July 29. 1985. In this letter you appealed the denial
of access to all of the withheld records, which at this time
consist of the eleven sites set forth above.
3. (4)RIN 204A-85. On March 5. 1985. you requested from
Region IV the same type of HRS documents and information as
requested in #2 above, but for specific hazardous waste sites in
Region IV. The EPA responded by letter of April 9C 1985.
from Charlea Jeeter, Regional Administrator. With that letter
you received copies of the scoring' documents for most of the
sites listed in your request. You were informed that the EPA
could not locate scoring documents for two sites in Alabama;
Unlroyal Chemical, Bay Minette. AL. and 3M Corp., Decatur, AL; «s
well as the Seaboard Coast Line Railroad site, Wilmington, North
Carolina, and SouthChea site, Durham, North Carolina. You were
informed that you were being denied access to the documents on
four other sites because the quality assurance checks had not been
completed on those sites, rendering, the documents predecisior>sl
and deliberative under 5 U.S.C. I552(b)(5). The withheld docu-ents
Included HRS worksheets. Documentation Records, and Reference
Documents; there were no Narrative Summaries prepared for the sites
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You appealed this partial denial by letter of May 3, 1985.
In that letter you appealed the denial of access to the withheld
documents regarding the following four sites:
1) Highland's Aviation. Avon Park, Fl;
2) Beulah Landfill, Pensacola, FL;
3) Yoder Brothers, Fort Myers, Fl; and
" 4) Vero Beach Vellfield. Vero Beach. FL.
Since the date your appeal was filed, records relating to
the Uniroyal Chemical, 3M Corporation and Seaboard Coast Line
Railroad sites have been located. Since the Agency has decided
not to consider these sites for listing on the NFL at this tine
these documents will be released to you directly by the
Regional Office.
Documents pertaining to the SouthCheo, Beulah Landfill
Yoder Bothers, Vero Beach Vellfield. and Highland's Aviation
sites are currently being considered for listing on the NPL
in a future update. Accordingly, documents pertaining to
these sites are being withheld under 5 U.S.C. I552(b)(5).
4. (8)RIN 7SA-85. By letter dated March 5. 1985. you
requested from Region VIII the sane type of HRS doeunents and
information as described in request numbers 2 and 3 above,
but for specific sites located in Region VIII. FPA responded
to your request by letter of April 10. 1985. from John G. Welles,
Regional Administrator. In that letter you were informed
that you would have access to records relating to three sites,
but that records for the following three sites would be
withheld pursuant to the deliberative process privilege of
5 U.S.C. I552(b)(5):
1) Hendricks Mill (Allied Chemical);
2) North Dakota Uraniferous Lignite Mines; and
3) Silver Creek Tailings.
The withheld records included HRS worksheets. Documentation
Records and Reference Documents; there were no Narrative
Summaries prepared for the sites'. You appealed this partial
denial by your letter of April 24. 1985. in which you requested
access to tht withheld documents.
Since the filing of your appeal, the Agency has made a
final decision not to consider the Hendricks Mill and
North Dakota Uraniferous Lignite Mines sites for listing on the
N7I, at this time. The Silver Creek Tailings site was proposed
for the NPL in Update 14, September. 1985. Since a final
decision has been reached on all three sites, the site documents
will no longer be withheld and will be sent to you directlv
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frora the Regional Office.
5. (I)RIN 93A-85. By letter dated March 5. 1985, you
requested -trom Region I the cane type of HRS documents and
information as described in request numbers 2. 3 and 4 above,
but for specific sites located in Region I. EPA responded
to your request by letter of September 16. 1985. from
Merrill S. Hohnan. Director, Waste Management Division. In
that letter you were informed that you would receive records
relating to two sites, but that HRS worksheets and Documentation
Records for three sites would be withheld. These three sites
were Andrews Road Landfill, Biddeford. Maine; Winter Harbor
Town Dump, Winter Harbor. Maine; and Brown's Septage Pit.
Peterborough, New Hampshire. These three sites are still under
consideration for listing on the NPL. However, you did
receive EPA Form 2070-13 (Site Inspection Report) for each of
the three sites and you were informed that no Narrative
Summaries had been prepared on those sites. You appealed
this partial denial of your request by your letter of September 30,
1985, in which you requested access to the withheld documents.
Final Determination
The documents withheld in your appeals consist of HRS
worksheets. Documentation Records, and Reference Documents.
These records comprise the Proposed Rule HRS Package.
I have carefully reviewed each initial denial decision end
have concluded, that the documents still being withheld are
exempt from mandatory disclosure under the deliberative
process privilege of 5 U.S.C. S552(b)(5). This privilege
exempts from disclosure predecisional and deliberative inter
and intra-agency documents. HRS Packages meet these criteria.
RRS Packages consist entirely of intra-agency documents.
This term includes documents generated at the Government's
request by outside parties. Ryan v. Department of Justice.
617 F.2d 781. 789-90 (D.C. Clr"TT9~80). HRS Packages are
produced by the States and Regional EPA offices and their
respective contractors. The materials arc then forwarded to
Headquarters where they undergo quality assurance.
RRS Packages are also predecislonal and deliberative.
Predecisional documents are those written prior to the adoption
of an agency decision. Deliberative documents are those directly
related to the process by which agency decisions are made and
which reflect this decisionmaking process. HRS Packages «r»
predeclsional and deliberative in that packaging of HRS doc--.»-:c
occurs midstream in the ongoing deliberative process.
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Candidate si^es are first evaluated by State and Regional
EPA offices, whosa site recommendations are then forwarded to
Headquarters for Duality assurance and review. There is no
final decision to propose a site until rulemaking is initiated
by the Assistant 'Administrator. The decisions nade by the State
and Regional EFA "offices represent interin steps in the
deliberative process. HRS scores are considered preliminary
until final agency action, and thus they retain protected status
untij. this tine. Prior to final agency action, for Instance, during
the quality assurance process, there nay be Insufficient information
which to base a final HRS score, and the site proposal will be retur
to the Regional EPA office or State agency for additional research
to document HRS scores. The decision to list a site nay also be
deferred pending the site's consideration under another statute.
such as RCRA. During this tine the site nay still be a candidate
for the NPL and the documents retain their predecisional
status. If the Agency decides to take no action under either
CERCLA or RCRA, site documents nay be nade public.
The States and Regions lack the authority to reach a
final decision. A State recommendation for a site listing
nay constitute the last step in the Hazardous Ranking System
for .the State, but the recommendation and supporting documents
nust still be reviewed by higher authorities. Courts have
protected such interin ateps in a deliberative process.
Renegotiation Board v. Grutr.wan Aircraft Eng. Corp., 421 U.S.
168. 184 (1975) (divisional and regional reports, though not
final opinion, vere the kind of predecisional deliberative
recommendations contemplated by Exemption 5); Murphy v. TVA.
571 F. Supp. 502. 505 (O.C. Cir. 1983)(protection alloweT~for
interin decisions which the agency retained the option of
changing). Most inportantly, the HRS Package documents are
drafts, which nay undergo a series of changes and amendments
before being consolidated into a final Agency position.
HRS package documents are predecisional and deliberative
even though they contain scientific, factual analyses. Such
analyses reveal the Agency's deliberative process In that they
are subject to change in the Headquarter's quality assurance
review. See Professional Review Organisation of Florida v.
HHS, 607 T7~Supp. 423 (D.D.C. 1985)TFurther. In this instance
the analyses represent the opinions of Agency experts during
the Agency's deliberative process. See Chemical Manufacturer's
Association v. Consumer Product Safety Commission. No. 84-18^2.
slip op. (D.D.C. Dec. 24, 1984).
There are also strong policy reasons for withholding HRS
Package documents under Exemption 5. The premature disclosure
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oŁ MRS documents prior tc ilnal decision regarding a site
could adversely affect tl.e Agency's deliberative process.
With untimely release fch< KPA could be besieged with complaints
of wrongful consideration rr disagreements with scores
during time which the Agrncy needs to revise and finalize
its work product. Ample ojportuntity is provided to challenge
the Agency's analysis of a site after a proposed rule is
published in the Federal Rigister. The rationale behind this
policy was reiterated recently in Chemical Manufacturer's
Association where the Court noted that withholding scientific
Tactual documents crucial to. an agency's deliberative process
"would prevent interference with the [Agency's] experts
before their opinions are fully and finally formed."
Slip op. at 9.
Exemption 5 also protects against confusing and misleading
the public by the release of documents which suggest reasons for
a decision which are not in fact the ultimate reasons. Russell
v. Dept. of the Air Force. 682 F.2d. 1045, 1048-9 (D.C. CTr.
1982). The EPA is not.seeking exemption because the public
may not understand the documents, but because these documents
may suggest reason's for Agency action which are modified or
rejected in the quality assurance review process. Disclosure
of HRS documents at the point of rulemakin? will not confuse
the public with distorted information and will not interfere
with the preparatory internal deliberations of the Agency.
Finally, there has been no waiver of Exemption 5 privilege
for HRS Package documents merely because other documents concerning
a site, such as the Preliminary Assessments and Site Inspection
["reports, are made public. These documents are released at
[the discretion of the Agency. The fact that some information
on a site being considered for rulemaking has been released
does not justify disclosure of HRS documents being used
during the internal deliberations of the Agency. See Murphy
v. TVA. 571 F. Supp. at 505. Information on aites listed or
deleted from the NPL may be disclosed because a final decision
has been made. Candidate sites returned to a Regional EPA
Office or Stats are etill candidates for NPL listing and
documents concerning them should be protected.
You also requested the reasoning behind the policy of not
listing some sites with HRS Scores of 28.5 or above. I
believe your question was related to a computer printout you
obtained that Indicated several aites had HRS scores above
28.50. yet were not Included on the NPL. I understand that you
met with Harold Snyder, Chief of the Discovery and Investigation
Branch, to discuss this issue on April 12. 1984. As Mr. Snyder
explained, some of the site HRS scores were preliminary and
had not been finalized. A normal part of the Agency's quality
assurance program is to require EPA Regional Offices to
revise scores to be consistant with the proper application
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of the HRS and/or provide additional information to document.
existing scores.
Mr. Snyder also explained to you CERCLA restricts F.PA'*
authority to respond to the release of certain substances
into the environment and explicitly excludes some substances
from the definition of a release. In addition, as a natter
of policy, EPA nay choose not to respond to certain type* of
releases under CERCLA because existinR regulatory or other
authority under other Federal Statutes provides for an
appropriate response. Consequently, sites which meet FPA1 «
HRS criteria for listing nav not meet these other eligibility
policies and therefore would not be included on the NPI-.
In accordance with EPA regulations (40 CFR 7.UM
Jennifer Joy Hanson. Assistant Administrator for F.xternal
Affairs, has determined that the release of the exempt informa-
tion would not be in the public interest. Therefore, the
exempt information will not be released to you.
This letter constitutes EPA' s final Aeency Determination on
your appeals. Pursuant to 5 U.S.C. <552(a)(&) you nay obtain
de novp judicial review of this final EPA denial by complaint
Tiled in the United States District Court for the district in
which you reside or have your principal place of business.
for the district in which the records are located, or for the
District of Columbia.
Sincerely.
I.ee A. DeHihns. Ill
Associate General Counsel
Grants, Contracts, and ^
General Law Division
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