i
?
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON DC 20460
JAN 26 1984
MEMORANDUM
SUBJECT:
FROM:
Releasing Identities of Potentially Responsible
Parties in Response to FOIA Requests
Gene A. Lucero, Director (z?$bj£, A .
Office of Waste Prorams Enforcement
Kirk F. Sniff
Associate Enforcement Counsel
Office of Enforcement and Compl
ance Monitoring
TO:
PURPOSE
Directors, Waste Management Division, Regions I, V
Director, Office of Emergency & Remedial Response, Region
Director, Hazardous Waste Management Division, Region III
Directors, Air & Waste Management Division,
Regions IV, VI, VII,' VIII
Director, Toxics & Waste Management Division, Region IX
Director, Air & Waste Division, Region X
Regional Counsels - Regions 'I - X
to
II
This memorandum states the policy of EPA for responding
requests under the Freedom of Information Act (FOIA) for the
names of potentially responsible parties (PRPs) at CERCLA sites
II
BACKGROUND
On March 30, 1983, EPA issued guidance on releasing the
identities of potentially responsible parties under CERCLA.
--This guidance provided for case-by-case review and discretionary
disclosure of the identities of PRPs in certain limited circum-
stances. In general, before the March 30 guidance, EPA did not
release t'he names of PRPs in response to FOIA requests.
On June 28, 1983, the Federal District Court for the
District of Columbia decided in Cohen v. EPA that EPA had not
met its burden of establishing that disclosing the identities
of PRPs would harm the Agency's enforcement efforts. The case
involved EPA's decision to withhold the identities of potentially
responsible parties as provided by FOIA exemptions under 5
U.S.C. S§552(b)7(A), 7(C), and 5.
The court granted the plaintiff's motion for summary
judgment on finding that:
-------
-2-
1 . Fcr Exemption 7(A) -- notice letters are investigatory
records compiled for law enforcement purposes, but EPA did not
establish that disclosure of the notice letters would harm the
investigation;
2. For Exemption 7(C) -- the identities of the PRPs
who received notice letters does not fall into the category of
a protected privacy interest; and
3. For Exemption 5 -- notice letters are not predecisional
documents .
III. POLICY
As a result of the Cohen decision and the Administrator's
policy of conducting business in a more open atmosphere, and
in light of the resource demands involved in case-by-case
review of the names of notice letter recipients, the March 30,
1983, guidance has been reeva1uated . Tne new guidance is set
forth below.
1. In response to a FOIA request, EPA will release the
names of PRP3 who have received notice letters about a CERCLA site.
2. An exception to the policy of disclosing the names of
PRPs who received notice letters may be made only when EPA
determines that disc.losure of a particular name will cause such
interference.with an ongoing enforcement proceeding that
discretionary disclosure is clearly unwarranted. if EPA decides
to withhold the name of a PRP who received a notice letter, EPA
must support the conclusion that disclosure will cause substantial
harm to the law enforcement proceeding in writing with concurrence
by the Regional Counsel. The written documentation may not
consist of general statements; it must include the particular
facts relating to the specific PRP and site that led to the
conclusion to withhold.
3 . The names of parties who have not yet received notice
letters may be predecisional and therefore exempt from disclosure
under Exemption 5 of the FOIA. These names also may be exempt as
investigatory records under Exemption 7(A). However, in its
discretion EPA may release this material .
4. Although EPA usually will release the names of PRPs
only in response to FOIA requests, the Agency may elect to
release the information on its own initiative in appropriate
circumstances.
5. Disclosure of the names of PRPs and the names of sites
does not constitute a waiver of EPA's right to withhold other
information developed for an enforcement action that EPA determines
is exempt from disclosure. Even if information is exempt from
disclosure uncer Exemption 2, 5, or 7 of FOIA, EPA has discretion
-------
-3-
to release the information; however, EPA may exercise its discretion
to release the information only after the appropriate Regional Counsel
reviews the information to ensure that disclosure will not interfere
with an enforcement action.
IV. PROCEDURES.TO IMPLEMENT POLICY
EPA Headquarters or a Regional Office should follow the
procedure below to respond to a FOIA request for the names of
PRPs or othe'r information about a CERCLA site.
1. Quality assure the list of PRPs regularly and particularly
before sending notice letters to PRPs for a site. Perform an
in depth quality assurance of PRP lists every 6 months. Headquarters
will hold Regional Offices accountable for inadequate quality
assurance of PR? information.
2. Immediately notify Headquarters whenever a Regional
Office decides, in accordance with the guidance in Item III.2
above, that_disclosing the name of a PRP will cause substantial
harm to an enforcement effort. Regional Offices also should
notify Headquarters if withholding a name is no longer required.
3. If additional information is- requested about a PRP or
a site, consult with the Regional Counsel for a decision on
whether disclosure will interfere with enforcement at the site.
4. Submit the list of names, or names and information, to
the requester with a brief explanation of how £PA defines PRP
for purposes of sending notice letters.
5. Include with the list of names the following disclaimer:
This list represents EPA's preliminary findings on
the identities of potentially responsible parties.
EPA makes no assertions that parties on this list
are liable for any hazard or contamination at any
CERCLA site.
6. Use the term "potentially responsible party" in
responses to FOIA requests if none of the parties named in a
notice letter has been found liable by a court.
V. FIRST RESPONSE TO FOIA REQUESTS
Ten working days after the date of this policy, Headquarters
will respond to the current backlog of requests for all PRP names
with the quality assured list.
Any Regional Office that intends to withhold any PRP names,
as provided by Item III.2 above, must have completed the required
documentation and notified Headquarters before the FOIA response
date. If you have any questions about this policy, contact
Susan Cary Watkins (FTS 382-2032).
------- |