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           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:

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      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

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 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).

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