\ 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' ------- -2- 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. ------- -3- 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. ------- -4- 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 ------- 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. ------- -2- 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. ------- -3- 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 z*-\ Lee M. Thomas ------- 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. ------- 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 ------- 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. ------- 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. ------- 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. ------- '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). ------- -2- 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"). ------- -3- 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 ------- -4- 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 ------- -5- 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. ------- -6- 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 ------- -7- 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 ------- -R- 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 ------- |