UNITED STATES ENVIRONMENTAL PROTECTION WASHINGTON. O.C. 20*60 ocr 12 •OblO WACTI AND |M|«Oi'>; *: MEMORANDUM SUBJECT: Procedures for Issuing Notice Letters PROM: Gene A. Lucero, Director Office of Waste Programs Enforcement TO: Directors, Waste Management Divisions Regions I-X Directors, Environmental Services Divisions Regions I-X Regional Counsels, Regions I-X This memorandum provides guidance on preparing and issuing notice letters. It reflects the Agency's policy on allowing potentially responsible parties to cotxduct remedial investigations and feasibility studies (RI/PS) and addresses Regional concerns regarding notice letters. The guidance consists of two major partsx a'discussion of site specific considerations in drafting notice letters and a generic sample notice letter with explanatory discussion. The guidance is intended to assist the Regions in developing technically accurate notice letters that best effectuate the purpose of notification under the Comprehensive Environmental Response, Compensation, and Liability Act. BACKGROUND Section 104(a)(l) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) authorizes the President to spend CERCLA Trust funds to clean up hazardous waste sites unless the President determines that proper cleanup will be undertaken by the responsible parties. ------- A first step in determining whether • potentially responsible party (PRP) is willing and financially capable of undertaking a proper response is the issuance of-notice letters to identified PRPs. The letters inform PRPs of their potential liability for cleanup and, under certain conditions, provide them with an opportunity to undertake necessary action after negotiation with the Agency. This approach conforms with the Agency's policy to secure cleanup by responsible parties, in lieu of Superfund use, whenever such cleanup can be accomplished in a timely and effective manner. While the Agency believes that notice letters are not required by CCRCLA and are not a precondition to cost recovery, notice and the receipt of notice may help to minimize the possibility of a PRP raising insufficient notification as an issue in subsequent litigation. The Office of Waste Programs Enforcement (OWPE) in the Office of Solid Waste and Emergency Response (OSWER), in consultation with the Office of Enforcement and Compliance Monitoring - Waste (OECM-Waste), was initially given the responsibility for drafting, reviewing, and issuing notice letters to potentially responsible parties. The authority to issue information requests* under CERCUt was formally delegated to the Regional Administrators on April 16, 1984 as part of an overall CERCLA delegation of authority. Notice letter issuance was not formally addressed as part of this delegation. This memorandum specifically clarifies the authority to issue notice letters as lying with the Regional Administrators. Each Regional Administrator nay further delegate the authority for issuance of notice letters to the appropriate Regional Division Director. In May 1983, the Office of Waste Programs Enforcement issued draft notice letter guidance to the Regions that outlined procedures for issuing notice letters to PRPs concurrent with the conduct of • Fund-financed HI/PS. The guidance also indicated that PRPs would be notified that an Agency-financed RX/PS had begun or will soon begin and that the PRPs «ay take over the RI/PS if they are unequivocally willing Co undertake the RI/PS and will commit to the implementation of the remedy approved by EPA baaed on the) results of the RI/PS. ------- OSWER * 9834.1 - 3 - Sine* this draft guidance was issued, the Agency has established a new Rl/FS policy. Under the new policy, the Agency will now give PRPs the opportunity to participate in the) RI/FS process or conduct the RZ/PS consistent with Agency procedures and guidance. This policy was developed to allow th« Agency to target its enforcement priorities, reduce the possibility of unsuccessful or protracted negotiations with PRPs, and enhance the quality of a private-par ;y RI/FS. • OSWER and OECM-Waste have issued a memorandum to the Regional Air and Waste Management Division Directors and Regional Counsels outlining the circumstances in which PRPs •ay conduct the RI/FS and procedures for notifying PRPs in such cases (see, "Participation of Potentially Responsible Parties in the Development of Remedial Investigations and Feasibility Studies under CERCLA," Lee Thomas, Courtney Price, March 20, 1984). This revised RI/FS policy requires the issuance of two sets of notice Betters to PRPs: one for the RI/FS and the other at or near the completion of the RI/FS for the site remedy. Timing of notice letters is discussed in detail later in this guidance. POTENTIALLY RESPONSIBLE PARTY'DETER*INATION The type of factual evidence needed to establish that a party is responsible for the problems at a oarticular site "is discussed in a previously issued guidance document entitled, •Procedures for Identifying Responsible Parties at Uncontrolled Hazardous Waste Sites - Superfund", Prepared by the Office of Legal and Enforcement Counsel (.February 1982). The amount of such 'evidence depends on the circumstances of each case and should be determined by the Regional program. office in consultation with the Regional Counsel. In the early stages of case) development,- any individual or company even remotely associated with a particular site may be sent initial information request letters. The responses to these letters .svey then-provide additional evidence linking certain parties acre) closely to the' site. Ultimately, any party receiving a notice letter would be considered a potentially'responsible party. Th4 issuance of a notice) letter* therefore, should be considered carefully because it not only designates the recipient as a PRP but opens the possibility of the PRP's name being released in response to a Freedom of Information Act (FOIA) request. ------- - 4 - PURPOSE OF THE GUIDANCE Initial notice letters issued by EPA were based on a variety of models and were general enough to be applicable to most potentially responsible parties simply by means of inserting the name of the addressee. While adequate for notification purposes, the content of those letters was not tailored to reflect the circumstances present at each site or the status of each PRP. Previous notice letters were perceived, therefore, to have two limitations: they did not adequately encourage a negotiated cleanup by the PRP nor did they provide PRPs with an adequate level of information on the Agency's planned or actual response actions at the site. This guidance is designed to assist Regional program personnel in preparing sound and technically accurate notice letters, in accordance with the Agency RI/FS policy, that will encourage cleanup by potentially responsible parties. Headquarters Program and Enforcement Counsel personnel will not be involved in drafting or sending notice letters. Nonetheless, copies of all CERCLA notice letters issued (whether for RI/PS, removal actions, or remedial actions) must be forwarded to OWPE; addressed to the Director; at the same time they are sent to the potentially responsible parties. Vital information on all notice letters sent will be recorded and tracked by the Supejrfund Enforcement Tracking System. PURPOSE OF THE NOTICE LETTER Notice letters will inform the potentially responsible parties that Fund-financed actions are planned and/or have been completed. Notice letters will provide PRPs with the . opportunity to undertake future actions, and will inform PRPs of both their potential obligation under Section 106 of CERCLA to implement any needed relief actions determined by EPA and their potential liablility under Section 107 of CERCLA for the cost of Fund-financed action* if they do not respond or fail to respond properly. PRPs will also be informed of their opportunity to discuss vith Agency personnel the response) measures to be performed. . . Notice) letters should generally include information , . requests. Under Section 3007(a) of the Resource Conservation snd Recovery Act (RCRA), the Administrator has the authority to require any person who generates, stores* treats, transports, disposes of, or otherwise handles or has handled hazardous waste to provide certain information on the identity, volume, ' transporter, and time of the activity regarding the hazardous wastes at the site in question. Section 104(e) of CERCLA provides similar authority for all hazardous substances. The facts gleaned from the information sent in response to such ------- • request will assist the Regional Office in identifying additional responsible parties as well as in preparing for litigation or negotiating a voluntary cleanup. If this information has already been obtained through a previous information' request letter, an information request in the notice letter may not be necessary. The Department of Justice has asked that future RCRA and CERCLA referrals from the Agency contain information regardinc the insurance coverage of PRPs. To that end, all information requests under RCRA $3007 and CERCLA 5104 should include a request for information regarding the existence of insurance coverage for damages resulting from releases of hazardous substances and for copies of all such insurance policies, both currently in effect and in effect during th.e period of activity in question. This will enable the Department of Justice to evaluate the extent of coverage in hazardous waste cases and, where appropriate, to notify insurance carriers directly of potential liability under CERCLA for the costs of cleanup. This gu-idance contains a generic sample notice letter with explanatory discussion. Since each site and each PPP will present different circumstances, this generic sample notice letter is designed to be flexible and can be easily modified. Each site and PRP may dictate a different mix of information in the letter actually sent to the PRP. Various site specific and PRP specific, considerations, which are discussed below, along with the explanation accompanying the generic sample notice letter will assist the Regions in drafting notice letters which best effectuate the purposes described above. . • CONSIDERATIONS IN DRAFTING NOTICE LETTERS Numerous site specific and PRP specific considerations will affect the actual language of the notice letter. The following-factors should* therefore, be kept in mind when drafting esse specific letterss • . . The type of action contemplated (RJ/PS, removal or remedial) . The tone desired The timing of the notice letter Litigation involving the site • The type of release (actual, threatened, or both) . The response desired ------- - 6 - Agency resources needed for follow-up .o notice letter Possible release of identities of responsible parties The number of PRPs to whom notice letters must be sent Some of these factors nay be more important than others, and in a given situation, several may in fact not even b« applicable. Each factor, however, should be assessed in light of the specifics of the case so that the best possible notice letter- will result. 1) Type of Action The type of action the Agency contemplates (immediate removal, initial remedial measure (ZRM), RI/PS, or remedial action) will also affect the content of the notice letter. Zn immediate removal situations, efforts to obtain private party response may often begin with an oral notice from the on-scene-coordinator, followed by a written notice letter confirming the verbal request for response and notification. In some emergency situations where a CERCLA Administrative Order is issued to responsible parties, no notice letter is sent per se. The Order is sent under a cover letter which serves to notify the responsible parties of their,liability for cleanup costs. IRMs are somewhat less urgent., thereby generally eliminating the special need for oral notice prior to written notice. Notice letters will be issued, followed by Agency negotiations with the PRPs, aimed at securing private party cleanup within an established period- of time. Por sites where.an RZ/FS is planned,'PRPs will be notified of the opportunity to perform or participate in the RZ/FS. The Agency will make available a list of sites scheduled for RZ/PS development. This list will be published at least annually, on a fiscal year basis, and may be updated quarterly. during the course of the year. Accompanying the list will be a statement that PRPs.can contact Agency personnel to discuss their conduct of, or participation in, the RI/PS. The Agency will then send notice letters'to PRPs for sites listed o«.the Superfund Comprehensive Accomplishments Plan. The notffe letters will inform the potentially responsible parties Chat Fund-financed RI/PS actions are planned; that the results of the studies will be used to select • remedy for the site; that PRPs can meet with Agency personnel to discuss their participation in or conduct of, the RI/PS} that PRPs may be liable for the costs of the .RI/PS performed by the government) and that PRPs will have an opportunity to meet with Agency personnel to discuss design and implementation of the remedy after completion of the RI/PS. ------- Upon completion of an RI/FS at a site, the Agency will send notice letters to PRPs which should invite each PRP to prepare comments on the draft RI/FS, offer the PRP the opportunity to undertake the design and construction of the remedy selected by the Agency, and indicate deadlines for negotiations with the Agency. All notice letters, whether for removal, RI/PS, or remedial actions, should inform the PRP of both his/her potential obligation under Section 106 . of CERCLA to implement any needed relief actions determined by EPA and potential liability under Section 107 of CERCLA for any Fund-financed activities performed at the site and describe the next response action which is expected to occur. 2) Tone The tone a notice letter projects will indicate the Agency's position as clearly as any specific language the letter contains. The desired tone will be achieved by language that clearly outlines the PRP's potential statutory liability and yet is encouraging regarding prospective negotiations. The letter should encourage cooperative discussion between the PRP and the Agency. Ultimately, however, program personnel in consultation with the Regional Counsel must exercise their own discretion in setting the tone and emphasis that best effectuates the purposes of the notice letter. The letter should not indicate that the Agency has made a final determination of liability. Such determinations are made only if and when the Agency pursues an enforcement action against a responsible party. 3) Timing of Notice Letter In general, notice letters should be issued as soon as possible after completion of the responsible party search and prior to any Federally-financed response actions. The notice letter may be an initial contact, or a followup to an oral notice. If it is EPA's initial contact with the PRP, a more detailed explanation of CERCLA and its ramifications for the PRP would be appropriate. In the) case of immediate removal actions, written notification mey not be) feasible, and only oral notification may be) possible. A notice letter should immediately be sent confirming the oral notice, reiterating the pertinent facts and any agreements that were reached, and expanding on the party's responsibilities under CERCLA. This type of notice letter would necessarily be structured somewhat differently than an 'initial contact" notice letter. In addition, the PRP's response to an oral notification will affect the content- of ths notice letter. Other oral or written communication with the PRP, where appropriate, should be recognized in the notice letter as well. ------- - 8 - For RI/FS actions, notice letters will be issued only after a site appears on the Superfund Comprehensive Accomplishments Plan (SCAP) and should normally be issued no later than sixty days before the scheduled date for obligation of funds for the RI/FS"Timing of the notice letter should take into account the number of PRPs and the complexity of the data associating PRPs with the site. Sufficient time should be allowed to enable the Regional Office to collect and analyze data received from PRPs in response to any information request that may be contained in the notice letter. In addition, PRPs should have sufficient time to organize into a steering committee to speak on behalf of as many PRPs as possible when discussions on the RI/FS begin. Timely completion of these activities will help avoid unnecessary delays in meeting Fund-financed RI/FS commitments set forth in the SCAP. Once resources for an Agency-financed RI/FS have been obligated, the PRP will not be allowed to take over development of the RI/FS. Further, in the event a PRP is discovered after the Fund-financed RI/FS has been initiated or completed (e.g., due to newly discovered evidence), a notice letter should still be sent as soon as is practical. The letter should contain language urging the PRP to undertake the design and construction of a remedy following completion of the RI/FS and inform the PRP of his/her potential liability for activities already performed at the site as well as any future activities; The letter may take the form of a combination notice letter/demand letter. Under certain circumstances, up to three notice letters may be appropriate. An initial notice letter could be sent prior to a Fund-financed immediate removal or IRM. A second notice letter will be sent when the Agency plans to undertake an RI/FS. A third notice letter will be issued, when the Agency has completed or is nearing completion of the RI/FS and approximately thirty days in advance of the public comment period on the RI/FS. More than thirty days may b« appropriate if there exist a large- number of PRPs at a site. • 4) Litigation Involving the Site XI potentially responsible parties are involved in RCRA, CERCLA* or other Federal litigation at the site, the Department of Justice (OOJ) must be informed of any notice letters which the Agency is planning to send. Notice letters in these situations will be issued by the Regional program office only after consultation with OOJ and Regional Counsel. In these situations* copies of notice letters issued and responses received must be forwarded to OOJ and to the Office of Enforcement and Compliance Monitoring • Waste (OCCM-Waste) in addition to OWPE. ------- - 9 - 5) TVPO of Hazardous Substance Release Diocuooion of the type of release or threatened release nay involve torninology unforalliar to tho PRP. The notice lottor shou.ld, however, ot least identify whether the episode involvoo c release or a threatened release of hazardous oubotonces and, if tho information is available and supportable, tho substances involved. Regional program personnel have wide latitude when drafting" the notice letter to decideThe appropriate depth of technical discussion. 6) Type of Response Desired Notice letters ohould be issued in accordance with a plan developed by the case management team. This should allow Regional personnel to be adequately prepared for immediate questions and requests for documents that may arise as a result of the letters, as well as any negotiations that may subsequently occur. In moot circumstances, the notice letter should specifically request a written response from the PRP. In come cases, ouch as where a groat number of PRPs oxiot, a somewhat different response may be requested from those PRPs which EPA believes contributed most significantly to the hazardous substances at the oito. For example: the case management team may select a "tier" of PRPs. The notice lottor sent to this tier of PRJPs stay include an invitation to initiate negotiations with EPA, while tho notice letter sent to tho remaining PRPs may only request a written response. , In limited cooest ouch as whore aegroat number of PRPs ore to respond within a ohort poriod of time (i.e., 24 - 48 hours), Agency poroonnol nay bo inundated with n number and variety of rooponooo. Roquooting initial oral rooponses (directed to a opocifiod telephone number whore opocific quootiono will bo aokod), with written rooponooo or informational nootingo with a ooloct group or all PRPs to follow, coy bo appropriate. Ondor all circunotancos, contact with tho £goncy in any form ohould bo encouraged. ------- 7) Resources Needed for Follow-Through Activity In issuing notice letters it is important to consider carefully the resources necessary to follow through with the next phase of activity. In particular, the Region issuing .tha notice letter should be prepared to Bake timely and appropriate' responses to questions fron PRPs and to conduct negotiations. It nay be helpful to assembles a fact sheet, a list or package of references regarding the site, and/or applicable guidance describing what the Agency considers to be*necessary prerequisites to PRP performance of any removal, RI/FS, or remedial action. This may not always be possible during the early phases of site management planning due to the lack of detailed information both on the site and on remedial alternatives. The notice letters should, therefore, only be issued after discussion with Regional Counsel regarding meeting times and the enforcement strategy for the site. 8) Release of Identities of Potentially Responsible Parties to Facilitate Superffund Negotiations' The names and addresses of potentially responsible parties should be released prior to Superfund negotiations to encourage* the PRPs to organize among themselves in order to reach a settlement with EPA and in accordance with the following guidelines: . • ' ' - The release" of the names of potentially responsible parties prior to negotiations should occur routinely to all potentially responsible parties receiving notice letters and a list of PRP names and addresses should be attached to the notice letter. This information will encourage prenegotiation organization among PRPs and may facilitate meeting negotiation deadlines. - A cover letter attaching the list of PRP names and addresses should include the following disclaimer: This list represents EPA's preliminary findings on the identities of potentially responsible parties. Inclusion on this list does not constitute a final determination concerning the liability of any , . party for the hasard or contamination at the site ia question. » - PUP names may also be released in response to Freedom of Information Act (POIA) requests. Relevant guidance is included in the January 26, 1*14 memorandum from Gene A. Lucero and Kirk P. Sniff, titled? "Releasing Identities of Potentially Responsible Parties in Response to POIA Requests*. ------- - 11 - 9) The Number of Parties to Whom Notice Letters Must be Sent Notice lttt«r« should be. sent to every PRP at * site. The Regions »ay, as a natter of program discretion, issue notice letters which request a different response from various PRPs, as described previously in this guidance. The immediacy of the hazard at tie site may limit the number of PRPs that will initially receive notice letters. This approach will facilitate negotiations with potentially responsible parties so that response actions can begin promptly. .The Reaions should later issue notice letters to the remaining PRPs, after the immediate hazard at a site has been abated. CONSIDERATIONS ON THE USE OF THE GENERIC SAMPLE NOTICE LETTER The generic sample notice letter which follows this discussion (page 13) is a combined notice letter/information request letter and is an example only. The generic letter should be modified according to the considerations outlined. above and should reflect the specific circumstances of the case. While several or possibly even hundreds of letters per site may necessarily be somewhat similar, each .letter should, whenever possible, be considered individually and tailored to include PRP specific and site soecific factors. FORMAT OF GENERIC SAMPLE NOTICE LETTER The generic sample notice letter and following analysis are for a site in which the Agency is planning an RI/FS. Notice letters for immediate removals, IRMs, and design and implementation of site remedies may also be drafted by modifying this generic.,sample notice letter. For identification purposes, the sample letter is divided into twenty paragraphs, labeled Paragraph A through Paragraph T, Different language alternatives are offered within the text of the generic sample notice letter. A two bracket system (outer and inner bracket-s) has been used. An outer set of brackets will contain instructions (in capital letters). The language alternatives will be contained in inner brackets. For ex amplest The (CHOOSE ONCs i 1'. [release] 2. (threat of release]]... ------- - 12 - For consistency, if the bracketed material only contains instructions and no alternatives both inner and outer brackets will be used. For example: The [(name of site]] site... A paragraph by paragraph analysis accompanies the generic sample notice letter to help in tailoring the generic letter to the circumstances of a particular site. USE OF THIS GUIDANCE The policy and procedures set forth here, and internal office procedures adopted in conjunction with this document, are intended for the guidance of staff personnel, attorneys, and other employees of the U.S. Environmental Protection Agency. They do not constitute ruleraaking by the Agency, and may not be relied upon to create a right or benefit, substantive or procedural, enforceable at law or in eauity, by any person. The Agency may take any action at variance with the policies or procedures contained in this memorandum or which are not in compliance with internal office procedures that may be adopted pursuant to those materials. ------- - 13 - GENERIC SAMPLE NOTICE LETTER FOR THE CONDUCT OF AN RI/FS * Paragraph A Certified Mail; Return Receipt Requested Paragraph B Name of PRP Mailing Address of PRP Paragraph C Re: Name of Site Address of location of site Paragraph D » * Dear [[name of PRP if individual is known, "Sir or Madame" if otherwise]]: Paragraph E The United States Environmental Protection Agency (EPA) is considering spending public funds to investigate and take corrective action for the control of [CHOOSE ONE OR BOTH, AS APPROPRIATE: 1. [releases] 2. [threatened releases]] •f. of. hazardous substances at the above referenced site. Unless EPA determines that a responsible party will properly perform such actions, EPA intends to do so pursuant to Section 104 of the Comprehensive Environ»ental Response, Compensation, and Liability Act of 1980, 42 O.8.C. 9601 et seq (CERCLA). Under Sections 106(a) and 107(a) of CERCLA and other laws, responsible) parties may be obligated to implement any needed relief act IMS determined by EPA end may also be liable for •11 costs incurred by the government in responding to any release or threatened release st the site* Such costs can include, but are not be limited to, expenditures for investigation, planning, cleanup of the site and enforcement. By this letter EPA notifies you of your potential liability with regard to this matter and encourages you to voluntarily undertake cluanup activities which will be overseen-by EPA. * Note that a specific explanation regarding each paragraph begins on page 20. ------- 14 OSWER t 9834. l' Paragraph F parties under CERCLA include current and past owners and operators, as well as persons who generated the hazardous substances or were involved in the transport, treatment, or disposal of them. Based on ([identify here any evidence obtained by EPA that documents the PRP's connection with the site such as site records, manifests, state records, corporate records* etc.]], EPA has information indicating that you may be a responsible party. More specifically, the Agency has reason to believe that (CHOOSE THE APPROPRIATE BRACKET: 1. (you] 2. (your company] 3. (name the company]] [CHOOSE THE APPROPRIATE BRACKETED CLAUSE: 1. [were the owner/operator of the facility] 2. [were a former owner/operator of the facility at the time of disposal of hazardous sustances at the facility] 3. (did, by contract, agreement, or otherwise; arrange for the disposal, treatment, or transportation for disposal or treatment of hazardous substances at the facility] 4. (accepted hazardous substances for transport to disposal or treatment facilities selected by you]] during the period ([specify dates that the PRP engaged in the activity]]. Paragraph c ^. EPA has determined that (CHOOSE APPROPRIATE BRACKETED CLAUSE: 1. (a release of hazardous substances (as defined by section 101(14) of CERCLA) has occurred •t] 2. (there is a substantial threat of release of hasardous substances (aa defined by section 101(14) of CERCLA) from]] the- above referenced facility. At the present time, [[identify •ubstance(s) at the site that was(were)' handled by the PRP or the name of substance(s) found at the aits- if the PRP is(was) an owner or operator]] is (CHOOSE ONE OR BOTH, AS APPROPRIATE: ------- o f )834.1 - 15 - 1. [contaminating] 2. [threatening to contaminate]] ((Identify the pathway of contamination. Include here site specific information on why there is a reasonable likelihood that a release is threatened.]] As a result of [[the threat of]] such release, [[describe population reasonably expected . to be exposed/harmed and/or waterbodies or land areas . reasonably expected to be affected]]. The Agency will, upon request, discuss this information with you and will provide additional information on the nature and extent of the'[CHOOSE ONE OR BOTH, AS APPROPRIATE: 1. [release] 2. [threatened release]] Instructions on how to contact the Agency's representative, [ [name of EPA contact]], are set out below. We urge you to contact [[name of EPA contact]] as soon as possible. Paragraph-H EPA is planning to conduct the following studies at the [(name of site]] site: 1. Further investigations to identify the local hydrogeological characteristics and define the nature and extent of soil, air, and surface water contamination at the site and 2. Feasibility studies to evaluate possible remedial actions to remove or contain hazardous substances, pollutants, and contaminants at the site. In addition to the above studies, you may be asked at a later date to undertake, or may be liable for, any additional corrective measures necessary to protect public health, . welfare, or the environment. Such measures may include, but are not limited tot. 1. Implementing initial remedial measures, e.g., securing the cite to prevent contact with any hazardous substances that may be present at the site and/or removal of contaminated material from the surface of the site; ' 2. Designing and implementing the EPA approved remedial option; and 3. Providing any monitoring and maintenance necessary after remedial measures are completed. ------- - 16 - Paragraph I EPA will consider an immediate offer from you to conduct the remedial investigations and feasibility studies {RZ/FS) described above in accordance with an EPA work plan or the EPA RZ/PS guidance. Alternately, you may elect to participate in the RI/PS. You should notify EPA, in writing within ((specify number of days]] calendar days from the receipt of this letter, of your willingness to conduct or participate in the RI/FS. Otherwise, EPA will assune that you decline any involvement in the RZ/FS and will proceed with the appropriate studies and any initial remedial measures needed to secure the site. EPA may later invite you to undertake the design and implementation of the selected remedy upon the Agency's completion of the RZ/FS. Your letter should indicate the appropriate name, address, and telephone number for further contact with you. If you are already involved in discussions with state or local authorities, engaged in voluntary action, or involved in a lawsuit regarding this site, you should continue such activities as you see fit; you should not interpret this letter to advise or direct you to restrict or discontinue any such activities. You should report, however, the status of those discussions or that action in your letter. Please provide a copy of your letter to any other parties involved in- those discussions. ' . . Paragraph J Your letter should be sent to: [[Name of EPA program official or case attorney in charge df this case: Section, Division OS EPA - Region (I) Street City, State, Zip Code]] If you need further information, ((name of EPA official in charge of this case (sane as above)]] can also be reached by telephone) at ([telephone I] ]. Paragraph K • EPA would like to'encourage good faith negotiations between you and the Agency and among you and other parties potentially responsible for the ((name of site]] site. The names of the other potentially responsible parties (CHOOSE THE APPROPRIATE BRACKET: ------- OSWER 4 9834.1 - 17 - 1. [have been revealed to you] 2. [may be revealed to you if. you specifically request, in writing, such information]] so that you may schedule meaningful discussions with other potentially responsible parties regarding cleanup efforts and quickly organize yourselves into a single representative body to facilitate negotiations with the Agency. Paragraph L In addition, EPA is seeking to obtain certain information from you for the purpose of enforcing the appropriate provisions of [[CERCLA and/or the Resource Conservation and Recovery Act, as amended by the Solid Waste Disposal Act Amendments of 1980 (RCRA)]], and to assist the Agency in determining the need for a response to a release of hazardous substances under CERCLA. Under the provisions of {[Section 104 of CERCLA, 42 O.S.C. 6927, and/or Section 3007 of RCRA, 42 U.S.C. 9604]], the Administrator of the Environmental Protection Agency has the authority to require any person who generates, stores, treats, transports, disposes of, or [[otherwise handles or has handled]] hazardous [[wastes and/or substances]] to furnish information related to such [[wastes and/or substances]]. Pursuant to this statutory provision, you are hereby requested to answer the following questions:. 1. What is the generic name and chemical character of the [[hazardous wastes and/or hazardous substances]], as defined under [[Section 1004(5) of RCRA and/or Section 101(14) of CERCLA]], that you ([generate, •tore, treat, transport, dispose, or otherwise handle or have handled]] at the ([name of site]] site? 2. For each ([hazardous-waste and/or hazardous substance]] identified abover please give the total voluae, in gallons for liquids and in cubic meters for solids, for which you ((generate, store, treat, transport, dispose, or otherwise handle or have handled]] and list when this activity occurred. 3. What arrangements ware made to transport these ((hasardous wastes and/or hasardpus substances]] to the [[name of sits]) sita? 4. Who was tha transporter of these ((hasardous wastes and/or hazardous sustances]], what was his/her previous address, and what is his/her current address** ------- - 10 - 5. Please provide any other information, ct,rresponse ce , etc. retained by your company regarding the I[name of lite]] site. Paragraph M For the above questions, please describe the types of records that were maintained by your company of the transactions with the [(name of site]} site including the date of the records, the author of the records, the current location of . the records, and the current custodian and all efforts that were taken to identify these records. If, in answering any of the above questions,information was obtained through employee interviews, indicate so in your letter and provide the names of the employees interviewed. Pursuant to Section 103 (d)(2) of CERCLA, it is unlawful for any person knowingly to destroy, mutilate, erase, dispose of, conceal, or otherwise render unavailable or unreadable or falsify any records. In addition to the above information, if (CHOOSE APPROPRIATE BRACKET: 1. [you are] 2. [your company is]] insured for any damages resulting from the release of hazardous wastes and/or hazardous substances, please inform' us of the existence of such insurance and provide us with- copies of all insurance policies both currently in effect and in effect during the period of [from to .] Paragraph N • ^••"••^•^^•^^^^•^•^^^•^•^w % ''Your response to this request for information must be sent to EPA (at the above address) within thirty calendar days of your receipt of this letter. [[Under Section 3008 of RCRA, 42 U.S.C. 6928, failure to comply with this request may result in an Order requiring compliance) or a civil action for appropriate relief, including penalties and/or failure to comply with this request under Section 104 of CERCLA may result in a civil enforcement action against you by EPA.]] Paragraph O > , EPA regulations governing confidentiality of business information are set forth in Part 2, Subpart B of Title 40 of the Code of Federal Regulations. For any portion of the information submitted which is entitled to confidential treatment, a confidentiality claim may be asserted in accordance ------- with 40 CFR Section 2.203(b). if EPA determines that the information so designated meets the criteria set forth in 40 CPR Section 2.203, the information will be disclosed only to the extent, end by means of the procedures specified in 40 CPR Part 2, Subpart B. EPA will construe the failure to furnish a confidentiality claim with response to this letter as a waiver of that claim, and information may be made available to the public by EPA without further notice. Paragraph P Your reply to the request for information under ([Section 104 of CERCLA and/or Section 3007 of RCRA]] should be considered separate and distinct from your reply relating to participation in cleanup response activities at the site. Paragraph Q The factual and legal discussions contained in this letter are intended solely for notification and information purposes. They are not intended to be and can not be relied upon as a final Agency position on any matter set forth herein. . • .• • Paragraph R Due to the seriousness of the problem at this site and the attendant legal ramifications, the Agency strongly encourages you to submit a written response within the time frame specified herein. We hope that you will give these matters your immediate attention. Paragraph S • ' Sincerely yours, 9 ((name of Regional Administrator]] Regional Administrator, Region It I 11 Paragraph T eei Regioftal Counsel, Region [[111 Director* Office of Waste Programs enforcement [[Registered Agent,, if PRP is a partnership or corporation]] ([Chairan of the Board, if PRP is a partnership or corporation]] [(Corporate Counsel, if PRP is a partnership or corporation 11 ------- - 20 - ANALYSIS OF GENERIC SAMPLE NOTICE LETTER POR THE CONDUCT OF AN RI/FS '— Paragraph A Notice letters usually will be sent certified mail, return receipt requested. While the Agency believes that notice letters are not required by CERCLA and are not a precondition to cost recovery, notice and the receipt of notice may be raised by PRPs as an issue at a later date. Zf the Region expects that a PRP may try to avoid service of the notice letter, it may be appropriate to send the letter by Express Hail, hand delivery or process server. This will avoid the possibility of the PRP successfully raising the defense of insufficient service in any later litigation. The receipts should be attached to a copy of the notice letter kept in the regional files. Note that notice letters to non-u.S. PRPs (e.g., Canadian) must be sent by registered mail. Paragraph B In completing the inside address, a decision must be made regarding the party to be named as a PRP. For individuals who are PRPs, their name (and any aliases) and their .home address will be satisfactory. ' For corporate PRPs, the corporation should be the recipient with the notice letter addressed to the attention of the President of the Corporation with copies going to the Chairman of the Board of Directors and Corporate Counsel (if there is'one). If the present whereabouts of the officers or the status of a corporate PRP is unknown, the letter should be addressed to the registered agent for that corporation. If the notice letter includes a CERCLA $104 and RCRA $3007 information request, the Region •ay want to send a copy to the local corporate office which may be more able to respond to the information request*. The use of names of specific individuals, when known, may expedite a response. Paragraph C Tto« subject address should list both the IPA designated name and any local names for the site. Zf no street address is available, location should be given by the names of the ' county, township, village or other political subdivision, or by any other information that describes the sits with specificity. ------- Paragraph E The first textual pargraph generally will set the tone for the entire letter. This particular sample paragraph sets forth the basic information that the letter needs to convey and combines language on legal liablility with other more encouraging language. A lead paragraph such as this is suitable fcr inclusion in a letter to all types of TRPs. Overuse of legal language in this first paragraph, however/ is to be avoided. Alternative language for this paragraph that amplifies the fact that the Agency has already spent money investigating the site would be as follows: •The United States Environmental Protection Agency (EPA) has expended public funds to investigate [CHOOSE ONE OR BOTH, AS APPROPRIATE: 1. [releases] 2. [threatened releases]] of hazardous substances at the above referenced site. EPA may spend additional public funds on actions to control such releases and/or threatened releases. Unless EPA determines.. that a responsible party, will properly perform such actions*, EPA intends to do so pursuant to Section 104 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. 9601 et seq (CERCLA)." Paragraph P the information needed to complete a paragraph such as this should be fairly obvious from program or enforcement files; In the actual letter, only that language that pertains to the type of PRP the'letter is addressing (i.e., owner/ operator, generator, or transporter) need be included. The typs and amount of evidence connecting the PRP to the site tmat must be included in the letter is important. The* best pisce/s of evidence include evidence actually obtained from the .sits and affidavits obtained from knowledgeable parties, although textual reference materials on corporate activities (such as 5.B.C. annual 10-K reports. Dun 4 Bradstreet's Business Information Reports, and Moody's Industrial Manual) also are adequate. 'Procedures for Identifying Responsible Parties at Uncontrolled Hazardous Waste Sites - Superfund" (February 1982) provides additional ------- OSWER 4 9834.1 - 22 - guidance on the type of factual evidence needed to designate a party as a PRP. Zf the PRP was initially identified by other PRPs, care must be taken to protect against disclosure of the identities of confidential'sources. Paragraph G This section of the letter can contain the technical basis for the need to take action under CERCLAV It also, necessarily, contains the most technically complex information in the notice letter. For those sites where less information is readily available at the time the letter is drafted or for other tactical reasons, this paragraph may be less specific than is suggested. In any event, major changes to the generic sample letter may be necessary due to site specific or PRP specific information. Paragraph H The letter should contain a description of the general steps that need to be taken to complete the RI/FS. In no case should the notice letter exclude the possibility that other work, beyond that mentioned, may be necessary. Paragraph I The letter should indicate that EPA is planning to conduct the RI/FS and provide the PRP with a time frame to indicate their willingness to perform or participate in the RI/FS. For immediate removals or IRMs this paragraph would have to be modified to offer the PRPs the opportunity to undertake voluntary site work and request that the1PRP notify the Agency of the nature and extent of corrective measures the PRP is willing to perform. Upon completion of the draft RI/FS, this paragraph should invite the PRP to prepare • comments en the draft RI/FS, offer the PRP the opportunity to undertake design and construction of the remedy selected by the Agency* and indicate deadlines for negotiation*with the Agency* This paragraph offers the PRP the* alternative of participating in the RI/PS. The Agency's relationship with the PRP and the characteristics of the PRP will dictate whether any alternatives to actual response (e.g.* settlement offers) should be offered in the notice letter. The notice letter must contain a demand for response and set a deadline response time. Suggested optimum response times are as follows: ------- 9834.1 - 23 - Immediate Removals (if 24 - 48 hours letter feasible) Initial Remedial Measures, 2 weeks to Remedial Investigations and 30 days Feasibility Studies Remedial Design and Reitedial 2 weeks to Actions (opportunity to 30 days comment on RI/FS) The information the Agency requires in the PRP's response letter may vary based on the Agency's knowledge of the site, the PRP, and the extent of work completed at the site. At a minimum, the notice letter should request the appropriate name, address, and telephone number for further contact. Since there is no basis for EPA to advise the responsible party either to continue, limit, or discontinue any of the activities listed in this third paragraph, the language has changed slightly from previous drafts. Paragraph J The contact point may vary from 'region to region or from site to site within a region. In some regions it may be the case attorney and in others it may be someone from the technical staff. In most situations, a written response will be requested from the PRP. If, however, the site involves numerous PRPs who must respond in a short period of time, the response requested may be oral with a written confirmation or information meetings with all PRPs to follow, in that case, the contact point would be an Agency telephone number and the person answering would ask the calling PRP a series of predetermined question* designed to create uniform information from the responses• Paragraph K past notice letters have stated that, at this stage of the process, the Agency will not disclose to the public (or Other PRPS) the names of potentially responsible parties, nor will the information be available through freedom of Information Act requests. ------- - 24 - Agency policy has since been modified to allow release of PRP names or other information about a CERCLA site, in rooponoo to a FOIA roquost. Tho Agency may aloo oloct to roloaoo the names in other circumstances whjoro disclosure of thio information dooc not intorforo with oito enforcement octiono. Tho document, "Releasing Identities of Potentially Responsible Parties in Response to POZA Requests" (Lucero and Sniff,, January 1984), providoo a detailed explanation of this policy. The identities of other PRPs may be provided at the oame time the notice letter is ioouod if tho Region decides that the release of PRP names with tho notice letter may encourage the PRPs to assemble as o cingle unit for negotiations with the Agency. Otherwise, notice letters should inform the recipient that the identities of other PRPs may be obtained prior to Superfund negotiations if the PRP submits a written request to the Agency for such information. Paragraphs L, M, N, 0, and P Those five paragraphs present RCRA Section 3007 and/or CERCLA-Section 104 information requests. Note that as a routine element of all information request letters, the Agency will now include a request for copies of all insurance policies that may provide liability coverage for damages resulting from releases of hazardous oubstances and/or hazardous wastes. This includes policies that are currently in effect as well as those effective during the period of activity in question. Tho timing and use of information requests will vary with tho circumstances of ooch onforcoiaont caoo. It may not always bo nococoary to- include an information roquost at tho time a notico lottor~is cent. Frequently information requests already hove boon node and roopondod t'o by tho tine tho notico lottor io prepared, and oorootinoo facto contained in information roquoot responses provide a foundation for notice lottoro. Tho decision to include Section 3007 and/or Section 104 roQtaooto in tho notice lottor io o natter of Regional discretion. Wo encourage tho ioouanco. of information roquost lottoro* whether alono or in combination with notico lottoro, ot tho cooo development otcgo. Once o cooo io £ilod, however, other information gathering techniques ouch ao interrogatories or depositions, whore available, ohould bo uood in lieu of information roquoot letters. ------- - 25 - Note that under these sections, the Administrator has the authority to request information only for certain purposes: enforcing the provisions of the Acts, determining the need for a response to a release, or developing regulations. Thus all letters must clearly indicate one of these three purposes. In general, information request letters that do not serve the dual purpose of providing notice to PRPs of potential CERCLA action should contain a general statement of purpose that might read as follows: This information is requested by EPA pursuant to [(Section 104 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. $9604 and/or Section 3007 of the Resource Conservation and Recovery Act, (RCRA), 42 U.S.C. $6927, as amended by the Solid Waste Disposal Act Amendments of 1980]], to assist the Agency in determining the need for response to a release of hazardous substances under CERCLA and for the purpose of enforcing the provisions of CERCLA and RCRA. Note the statutory and regulatory definitions of hazardous waste and hazardous substance when referencing either RCRA and/or CCRCLA authority in both Paragraph L and Paragraph N. There may be instances in which EPA does not have the legal authority to cite bath statutes as a basis for an information request. Paragraph Q The notice letter does not reflect a final Agency position and should not be relied upon by PRPs or other parties as establishing the Agency's factual or legal position on any issue. A short carefully phrased statement to this effect should be included in the notice letter. Paragraph R The closing paragraph should focus on the two most important purposes of the letters (1) to notify the PRP of the liabilities they face snd (2) to encourage the PRP to negotiate liitto the Agency. In addition, the closing paragraph should reemphasise the urgency of the problem snd the Agency*s desire for immediate action by the PRP. ------- - 26 - Paragraph 5 Consistent with the April 16, 1984 CERCLA delegation of authority* the signatory of this notice letter is the Regional Administrator. This may be further delegated to the Regional Division Director. Paragraph T If the PRP is involved in litigation over the site, copies must also be sent to the Department of Justice and OECH-Waste. ------- |