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.
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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.
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OSWER * 9834.1
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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.
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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
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• 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
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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.
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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.
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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.
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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.
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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*.
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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]]...
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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.
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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.
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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:
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o f )834.1
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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.
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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:
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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**
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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
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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.
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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
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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:
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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.
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- 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.
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- 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.
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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.
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