^=34.2
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. DC 20460
CCT 9 :335
SC.ID WASTE AND EMtBCENC" «ES»ONSŁ
MEMORANDUM
SUBJECT: Timely Initiation of Responsible Party Searches,
Issuance of Notice Letters, and Release of Information
/
FROM: Gene A. Lucero, Di rector [r^/\\& f\ .
Off-ice of Waste Programs ^enforcement
TO: Addressees
• • 's
PURPOSE
This memorandum re-er.phasizes the importance of early
identification of potentially responsible parties (PRPs) and
timely issuance cf r.ctice letters for the -RI/FS. These actions
support the Agency's policy to secure cleanup by responsible
parties in lieu of Superfund use, where such cleanup can be
accomplished in a timely and effective manner. The sooner
PRPs are identified and notified about their potential responsi-
bility, the more time they have to organize themselves to
assure responsibility for the RI/FS and cleanup (See "Partici-
pation of Potentially Responsible Parties in Development of
Remedial Investigations and Feasiblity Studies Under CERCLA,"
Lee M. Thomas and Courtney M. Price, March 20, 1984).
This memo also clarifies Agency policy on release of
site-specific information to PRPs and others. It supplements
the information release section of the Interim CERCLA Settle-
ment Policy (December 5, 1984). The clarification is designed
to facilitate information exchange in order to encourage effec-
tive negotiation and coalescing by PRPs among themselves.
Effective PRP negotiations and coalescing are likely to engender
effective settlement discussions with the government.
INITIATION OF PRP SEARCHES
In an effort to expedite and streamline the RI/FS process,
you should focus attention on early identification of PRPs and
timely issuance of notice letters. As you are aware, in FY 86
you will be required to conduct PRP searches for NPL Updates
3r 4, 5, and 6. This will be reflected in your SCAP targets.
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OSV.TR * 9S34.2
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In order to accorpli^h this, it will be necessary to start PR?
searches concurrently with developing sites for listing. At
the latest, PRP searches should be initiated when candidate
sites are sent to HQ for NPL quality control "review. YOU will
need to plan accordingly for this activity, particularly in
your case budgets.
Technical assistance resources for PRP searches are avail-
able through the Techncial Enforcement Support Contracts, TES I
and TES II, and are coordinated through the case budgeting
process. Each Region will be given a line of credit to support
the costs of responsible party searches, title searches, and
financial assessments. This credit will be allocated by a
straight-forward calculation of average past costs of such
activities multiplied by the nur.ber to be done in each Region.
Because of the heavy work undertaker, by TechLaw ir. trth
the TES I and TIS II contracts, the p:itr.« dr. tie...-- * ;-.«;••. e Li-cr.
distributing new work assignments for PRP searches to other
subcontractors. This should result in more timely reports.
NOTICE LETTER ISSUANCE
Timely issuance of notice letters for the RI/FS normally
means that notice letters are issued as -coon as possible after
completion of the PR? search and prior to any Federally-financed
response action. Timing of the notice letter should take into
account the number of PRPs and the complexity of the data
associating PRPs with the site. In general, notice letters
should be issued 60 days before obligation of RI/FS funds
(See "Procedures for Issuing Notice Letters," Gene A. Lucero,
October 12, 1984). PRPs should therefore have sufficient time
to organize themselves and initiate preliminary contacts and
disc-ss ior.= with Acency personnel. TKi«= will a1*-- avoid del?"
in ceiinninc a Fund financed RI/FS should it begone necessary.
Notice letters are generally combined with information
requests under RCRA §3007 and CERCLA $104(e) (See "Policy on
Enforcing Information Requests in Hazardous Waste Cases",
Courtney M. Price, September 10, 1984). Notice letters are an
important step in determining whether a PRP is willing and
financially capable of undertaking a proper response." The
NEIC Technical Information Center is a useful source for assess-
ing the financial viability of PRPs that offer stock to the
public. For privately held companies, the TES contract can be
used to estimate the financial capability.
Notice letters should be issued only to parties where
sufficient evidence is available to make a preliminary determi-
nation of liability under CERCLA 5107. Where doubt exists as
to whether available information supports notice letter
issuance, information recuests should be sent prior to notice
letters.
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In the past, notice letters were sent to PRPs who may or
may not have been liable under CERCLA. This may be avoided by
issuing notice letters to parties where sufficient evidence is
available to make a preliminary determination of liability
under CERCLA §107. For example, parties known to have arranged
for disposal of material which is not known to contain a hazard-
ous substance should not receive a notice letter. The Regions
should be particularly aware of the adequacy and completeness
of the PRP searches. This will mean expending resources on the
quality review of contractor work. I'm sure this will
save critical resources at a later point in the enforcement
process.
In addition, it is imperative that copies of notice letters
be sent to Headquarters for purposes of tracking and responding
to information requests. Along with other reporting require-
ments, each Region will be responsible for sending copies of
notice letters quarterly.
RELEASE OF SITE-SPECIFIC INFORMATION
It^is important to conduct PRP searches, issue notice
letters and collect information as soon as possible, not -only
to expedite the RI/FS process, but to ensure that certain
site-specific information is available for use .by PRPs. Avail-
ability of this information to PRPs will help PRPs organize
and negotiate among themselves.
As stated in the Interim CERCLA Settlement Policy, EPA
will release certain site-specific information to PRPs in
order to facilitate settlement discussions. This information
includes:
• Identity of notice letter recipients;
• Volume and nature of wastes to the extent identified
as sent to the site ("waste-in" list); and
• Ranking by volume of material sent to the site, if
available
There are, however, certain limitations with regard to the
information outlined above. For example, summary conclusions
about the volume and nature of waste sent to a site, including
a volumetric ranking should be provided to the extent that
such information exists. Volumetric rankings should be developed
when the Region determines that the rankings will be of signifi-
cant benefit to the Agency and responsible parties in facili-
tating settlement or cleanup. Moreover, due to their preliminary
and summary nature, EPA will not expend resources to explain
or defend any list or ranking. Lists or rankings released to PRPs
and others should always contain appropriate disclaimers.
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OSWER * 9834.2
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The settlement policy states that release of information
to PRPs should generally be conditioned on a reciprocal release
of information by FR?s. The reciprocal release policy does not
apply to the release to PRPs of the names of other notice letter
recipients on a site, or to waste-in lists and volumetric rank-
ings. Release of any additional information, however, should
be conditioned on a reciprocal release of information by PRPs.
In determining the type of additional information to be released,
Regions should consider the possible impact on any potential
litigation.
Again, it is important to conduct PRP searches, issue
notice letters, and collect information as soon as possible so
that the information discussed here is available for use.
Waste-in lists and volumetric rankings should be developed as
soon as possible after completion of PRP searches. This infor-
mation should be provided with notice letters, if available.
Such information ray also be released in advance of notice
letters upon request wr.en the Region de-cer-ines it will facili-
tate settlement.
The names of notice letter recipients are available to the
public in response to requests under the Freedom of Informa-
tion Act (FOIA) (See "Releasing Identities of Potentially
Responsible Parties in Response to FOIA Requests," January 26,
1984). The names may also be released at the Agency's initia-
tive without a FOIA req.est. N.--, to the extent cr.e information
exists, waste-in lists and volumetric rankings will also be
available to the public under FOIA and at the Agency's discre-
tion. Thus, requests for information on notice letter
recipients and for waste-in lists or volumetric rankings should
t* handled consistently whether the requests are made by PRPs
or the general public.
For further information on topics discussed in this memo,
please co-tact Lir.rJa Sutherland at FTS 382-2025.
Addressees:
Director, Office of Emergency and Remedial Response
Region II
Director, Air and Waste Management Division
Regions III, IV, VI, VII, VIII
Director, Waste Management Division
Regions I, V
Director, Toxics and Waste Division
Region IX
Director, Air and Waste Division
Region X
Regional Counsels, Regions I-X
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