, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
*j WASHINGTON. O.C. 20460
OP'ICf Of
SOLID WASTE AND EMCMCCNCV N(£»
SUBJECT: PRP Search Supplemental Guidance for Sites in the
Superfund Remedial Program
FROM: Bruce M. Diamond, Directoi'jy/^>d/~
Office of Waste Programs Enforcement
TO: Directors, Waste Management Division,
Regions I, IV, V, VII, VIII
Director, Emergency & Remedial Response Division,
Region II
Directors, Hazardous Waste Management Division,
Regions III, VI
Director, Toxics & Waste Management Division,
Region IX
Director, Hazardous Waste Division,
Region X
The purpose of this memorandum is to transmit to you new PRP
Search Guidance entitled, "PRP Search Supplemental Guidance for
Sites in the Superfund Remedial Program." This Guidance
supplements the PRP Search Manual which was issued in August,
1987. It is intended to assist you in conducting complex PRP
searches for the Superfund remedia1 program and preparing PR?
search reports.
The Supplemental Guidance addresses the findings that
resulted from an evaluation of the PRP search program which was
conducted by the CERCLA Enforcement Division (CED) in FY88. The
evaluation focused on PRP searches which were performed for NPL
sites in the Superfund remedial program. The evaluation findings
and a s«ries of recommendations were first presented to you for
comment in a December 30, 1988 memorandum from Lloyd Guerci
entitled, "Interim PRP search Program Evaluation Findings and
Improvements." This Guidance builds upon the recommendations
which were made in the memorandum and your comments to them.
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The major findings of the PRP search evaluation included the
following: '
o Accuracy and completeness of PRP search data were often
inadequate, including identification and location of
PRPs.
o Follow-up action to PRP search baseline information was
not, in many cases, undertaken in a timely manner,
e.g., issuance of Section 104(e) letters.
o Follow-up action to interviews and records collection
leads was often insufficient; leading to lack of
identification of PRPs in some cases.
The Supplemental Guidance focuses on operational procedures to
eliminate these problems and ensure the accuracy and completeness
of PRP search information through adequate documentation and
timely and effective follow-up actions.
In addition to addressing the findings which resulted from
the PRP Search Evaluation, the Supplemental Guidance also focuses
on several major PRP search .issues which were not given proper
emphasis in the PRP Search Manual. The first of these issues is
the use of information gained from the PRP search, particularly
as it relates to issuance of General and Special Notice Letters
and the release of information to PRPs under CERCLA Section
I22(e). The PRP Search Guidance stresses the importance of the
PRP search as the foundation of these significant site
enforcement actions.
The second issue relates to the elements of PRP liability
under Section 107 of CERCLA. It is cleat:y stated in the
Guidance that PRP searches must focus on the development of
evidentiary information concerning the liability of PRPs to meet
the Agency's goals of encouraging and compelling PRP
participation in site clean-up and cost recovery. To this end,
the Guidance introduces the use of evidence summary sheets to
track the status of research into the liability of each PRP.
Lastly, the importance of follow-up action and documentation
of such follow-up action is stressed in the Guidance. The most
significant addition to the body of PRP Search Guidance is the
process description of a follow-up phase to the baseline report,
which is not covered in the PRP search Manual. The focus of this
phase is on the development of information on generator and
transporter liability for General and Special Notice Letters.
This is an important addition to the remedial PRP search process.
The main body of the guidance is divided into three
sections: PRP Search Planning, PRP Search Process, and PRP
Search Reports Format and Content. The section on PRP Search
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Planning is intended to assist you in planning for remedial PRP
searches. The PRP Search Process section describes the baseline
and follow-up PRP search phases. The PRP Search Reports Format
and content section outlines the content of PRP search reports
and their appendices. The enhancements to the PRP search process
provided in this guidance are expected to measurably improve the
quality of PRP searches and the content and quality of PRP search
reports. Application of the Guidance should, therefore,
significantly assist the Superfund enforcement program efforts.
As you know, CED will be conducting a national PRP Search
Orientation Session for Regional Office and Technical Enforcement
Support (TES) contractor personnel with PRP search
responsibilities on July 18-20, 1989 in Chicago. Illinois.
Information concerning the Orientation Session was communicated
to you in mid-June, 1989. The new PRP search Supplemental
Guidance will be the focus of discussion at this Orientation
Session. I urge your support and your staff participation in
this Orientation Session which win address the many enhancements
to the Agency PRP Search program discussed in the Guidance.
If you have any questions or comments concerning the
Supplemental Guidance and Orientation Session, please do not
hesitate to contact Frank Biros, Chief, Technical Support Branch
at FTS 475-7281.
Attachment
cc: CERCLA Enforcement Branch Chiefs, Regions I-X
CERCLA Enforcement Section Chiefs, Regions I-X
Regional counsel Hazardous Waste Branch Chiefs, Regions I-X
Civil Investigators, Regions I-X
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OSWER Directive 9834.3-2a
PRP SEARCH SUPPLEMENTAL GUIDANCE
FOR SITES IN THE SUPERFUND
REMEDIAL PROGRAM
FINAL
June 16, 1989
This guidance and any internal procedures adopted for its
implementation are intended solely as guidance for employees of the
U.S. Environmental Protection Agency. Such guidance and procedures
do not constitute rulemaking by the Agency and may not be relied
upon to create a right or benefit, substantive or procedural,
enforceable at law or in equity, by any person. The Agency may
take action at variance with this guidance and its internal
implementing procedures.
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OSWER Directive 9834.3.2a
PRP Search Supplemental Guidance
for Sites in the Superfund Remedial Program
TABLE OF CONTENTS PAGE
I Introduction 1
II PRP Search Planning 3
A. Activities to be Conducted 3
B. Roles and Responsibilities 4
C. Schedul ing 5
D. Information Management 5
III PRP Search Process 5
A. Baseline Report Phase 6
1. Records Collection, Interviews with
Government Officials, and Title Searches 6
a) Records Collection. 7
b) Interviews with Government Officials. 7
c) Title Searches 8
2. Section 104 (e) Information Requests 8
3. Enforcement of Non-Compliance with Information
Requests Issued under Section 104(e) 11
a) Administrative Orders 11
b) Judicial Actions 11
c) Criminal Proceedings 12
d) Administrative Subpoenas 12
4. Updating PRP Status 12
5. Analysis, Follow-up, and Additional Research.... 12
6. Baseline Report Preparation and Review 14
B. Follow-up Phase 14
1. Section 104(e) information Requests 15
2. Supplemental Information Gathering 16
3. Analysis, Follow-up, and Additional 16
Research
4. Interim Final Report Preparation 17
and Review
5. Interim Final Report Follow-up 17
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OSWER Directive 9834.3-2a
-ii-
IV PRP Search Reports Format and Content .. 18
A. PRP Search Reports 18
1. Site History 18
2. Identification of Owner/Operators 18
3. Generators 19
4. Transporters 19
5. Special PRP Information 19
6. Special Site Information 20
7. Other Possible PRPs 20
B. PRP Search Report Appendices 20
1. Evidence Summary Sheets 20
a) Owner/Operators 21
b) Generators 21
c) Transporters 21
2. Summary of Work 22
3. Supporting Documentation.. ; 22
Attachment 1: PRP Search Process Flowchart
Attachment 2: PRP Search Reports Format
Attachment 3: Owner/Operator Evidence Summary Sheet
Attachment 4: Generator Evidence Summary Sheet
Attachment 5: Transporter Evidence Summary Sheet
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PRP SEARCH SUPPLEMENTAL GUIDANCE
FOR SITES IN THE SUPERFUND REMEDIAL PROGRAM
The purpose of this document is to provide guidance on PRP
search planning and management and on the content of PRP search
reports. This guidance applies to sites in the remedial program
and it supplements the August, 1987 PRP Search Manual.
I. INTRODUCTION
The broad objective of a PRP search is to gather
information on the potentially responsible parties (PRPs) that
may be liable and necessary evidence for Section 106 and 107
actions under CERCLA. This information is used in numerous
contexts including: (1) preparation of General Notice Letters;
(2) preparation of Special Notice Letters and attachments; (3)
assessment of settlements, including full settlements in light of
the litigation risks on liability and ability to pay, and partial
settlements, regarding the appropriateness of the settlement, the
case remaining against non-settlers, and any special statutory
concerns (e.g., de minimis. mixed funding); (4) identification of
names for community relations mailing lists; (5) identification
of information on the amounts of substances sent to/disposed of
at the site and, if available, the location of disposal and
consequences of disposal for the remedial investigation and
determination of whether RCRA hazardous wastes were sent to
/disposed of at the site for assessment of potential ARARs; and,
(6) evidence in cost recovery (Section 107), injunctive and
access actions (Sections 104, 106), and for other legal actions
under CERCLA such as liens.
The results of the PRP search and related activities should
provide information to support the elements of liability set
forth in Section 107(a) of CERCLA for each designated PRP. The
general elements of liability are:
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OSWER Directive 9834.3-2a
o The site is a facility;
o Releases or threatened releases of hazardous substances
occurred at the site;
o The defendant is within one of the classes of parties
that are liable;
o For cost recovery cases, the plaintiff incurred
response costs as a result of the release.
Some of this information may be obtained from the PA/SI or RI/FS.
Under Section 107(a), liability for response costs is
imposed on four classes of persons including:
o Present owners and operators,;
Present owners or operators of a facility are
liable even if they did not contaminate the
property.
o Past owners and operators;
Past owners or operators are liable if they owned
or operated the facility at the time that
hazardous substances were disposed of.
o Persons who arranged for either the treatment and/or
disposal, or the transportation for treatment or
disposal of hazardous substances (e.g., generators).
Where a generator is involved, the following elements
establish a generator's liability:
The generator disposed of or made arrangements for
the disposal or treatment of hazardous substances;
The generator's hazardous substances or hazardous
substances of the same type were present at the
site; and,
An actual or threatened release of the generator's
or any other hazardous substance occurred at the
facility.
o Persons who accepted hazardous substances for transport
to disposal or treatment facilities that they selected
(e.g., transporters).
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OSWER Directive 9834.3-2a
The PRP search process must focus on the comprehensive
development of this information concerning PRPs to meet the
Agency's goals of encouraging and compelling PRP participation
site clean-up and cost recovery. The process described in this
guidance is intended to provide direction in managing a PRP
search including identification of the PRPs associated with a
site and collection of sufficient evidence concerning the PRPs.
The report format is intended to assure appropriate summaries and
documentat i on.
II. PRP SEARCH PLANNING
A site-specific PRP search plan or strategy should be
formulated for each PRP search. PRP search plans should include
activities to be conducted, roles and responsibilities, a
schedule including interim management review, and a method of
managing information. For initial planning purposes, the PRP
search schedule may reflect that searches for single
owner/operator industrial plant sites take two quarters and
multi-generator searches typically are conducted in two phases
which usually cover five or more quarters. Particularly
complicated PRP searches, such as sites with very large numbers
of PRPs, typically take longer. Out year planning should start
the search with the listing site inspection and should plan for
search completion at least two quarters before the RI/FS start in
order to allow time for General and Special Notice Letters to be
issued.
To ensure that the plan addresses all reasonably foreseeable
legal, technical, and policy issues, the PRP search manager
should request that his Section Chief, a Regional Civil
Investigator, and an attorney from the Office of Regional Counsel
assist in formulating the plan.
A) Activities to be Conducted
The first matter to be considered in formulating the plan is
the identification of activities to be conducted. Ordinarily, a
search for an industrial plant site with one or a few
owner/operators should be based on the baseline report in the PRP
Search Manual. The baseline search usually consists of the ten
basic tasks which are outlined in the PRP Search Manual and
discussed in the process section of this document. For multi-
generator or multi-transporter sites PRP searches should
typically be conducted in two phases: baseline and follow-up.
The follow-up tasks are also described in the PRP Search Manual
as well as the process section of this document and, upon
completion, are reflected in the interim final report. Those
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OSWER Directive 9834.3-2a
formulating the PRP search plan should decide upon the sequence
in which these tasks are to be performed and the timing of the
baseline report. The process section of this document and its
accompanying flowchart (Attachment 1) are intended to assist the
Regions in formulating PRP search plans. The activities should
lead to the preparation of search reports and appendices as
described later in this guidance.
The initial plan will be preliminary because it is not
possible to predict with certainty what information will be
produced, what questions will arise after the initial tasks of
the baseline search, or what follow-up action will be required
for a complex search until the baseline phase has been completed.
In addition, PRP searches are iterative in nature. Many
tasks are performed more than once, particularly interviews and
information request mailings. Also, although the PRP search
process is divided into phases, these phases are not discrete.
Baseline tasks can be conducted during the follow-up phase and
specialized tasks can be conducted during the baseline phase.
For example, Section 104(e) information requests should be sent
during the baseline and follow-up phases, even though information
requests are listed as a baseline task.
B) Roles and Responsibilities
The second matter to be considered in formulating the PRP
search plan is the definition of roles and responsibilities. A
Regional person will be assigned lead responsibility for the
search. Regions will generally task contractors, such as
Technical Enforcement Support (TES) contractors, to perform the
baseline tasks and a small number of specialized tasks. These
tasks should be clearly defined in the PRP search work
assignment. Long-term tasks with one deliverable at the end
should be avoided. Incremental assignments with phased
deliverables are often the preferred approach.
Regional Civil Investigators are often responsible for
interviews with private parties and PRPs, and for any
investigative work that is best performed by a representative of
the government. For example, access to State Department of Motor
Vehicle information should be left to a Regional Civil
Investigator, not a contractor. Regional attorneys often
participate in preparation of Section 104(e) letters, evidence
review, and analysis of corporate successorship.
At critical stages in the process, PRP search activities and
information gained should be reviewed by the PRP search manager,
his Section Chief, a Regional Civil Investigator, and an attorney
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OSWER Directive 9834. 3-2a
from the Office of Regional Counsel. PRP searches entail a
number of complex issues . Th© involvement of these individuals
in the review of deiiverables Hill ensure that program as well as
evidentiary requirements are being met.
C)
The PRP search plan should be translated into a schedule
which begins with the initiation of the search, includes Special
Notice,, and concludes with the satisfaction of evidentiary
concerns. Resolution of evidentiary concerns will often follow
the RI/FS Special Notice. For planning purposes, PRP searches
should be scheduled over two to five quarters with more time
allowed for complex multi-generator sites. Some sites, such as
sites with complex area-wide groundwater contamination with
multiple sources of hazardous substance releases or stream
sediment contamination, may require specialized tasks during the
remedial investigation. In general, the baseline report should
be delivered 180 days after post-strategy tasking of a
contractor, and the interim final report should be delivered at
the end of the fifth or sixth quarter.
D) Information
As part of planning, the search manager should establish a
file structure and a system for documenting work performed and
follow-up required. The file structure (a) should be consistent
with the appendices to be prepared for the search report, (b)
should facilitate General and Special Notice and provisions of
appropriate information to PRPs as part of information exchange
and in response to FOI& requests (e.g. „ responses to Section
I04(e)) and, (c) should organize and secure other information,
such as analyses of liability, in enforcement confidential files.
Evidentiary concerns [e.g. , authenticity, exemptions from hearsay
(e.g., business records)] should be anticipated with regard to
the ultimate introduction of documents received into evidence.
Moreover, document control systems (e.g., numbers) should be
established. Finally, the number of document copies to be
provided by the contractor should be determined.
III. ERP ..SEARCH PROCESS
Except at owner/operator sites, PRP searches should be
conducted in two phases; baseline and follow-up (Attachment 1).
The purpose of the baseline report phase is to gather information
about the site and the owner /operators associated with it as well
as information that the owner/operator may have about generators
and transporters. The follow-up phase builds upon the
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OSWER Directive 9834.3-2a
information contained in the baseline report through additional
research and specialized tasks. Although this phase continues
through the completion of the interim final report, it may be
necessary to continue the search after the report has been
delivered, particularly for multi-party sites.
A) Baseline Report Phase
The baseline phase should yield information about the site
and the parties associated with it as well as establish the
liability of all owner/operator PRPs. The baseline phase usually
entails the use of all or most of the 10 baseline tasks outlined
in the PRP Search Manual;
BASELINE TASKS
o Agency Records Collection
o Records Compilation
o Interviews with Government Officials
o Title Search
o History of Site Operations
o PRP Name and Address Update
o PRP Status/History
o Financial Status
o CERCLA Section 104(e)/RCRA Section 3007 letters
o Report Preparation
For the baseline process discussion, these tasks will be broken
into five categories: Records Collection, Interviews with
Government Officials, and Title Searches; Section 104(e)
Information Requests; Analysis, Follow-up, and Additional
Research; Updating PRP Status; and Baseline Report Preparation
and Review. On a site-by-site basis, some specialized tasks may
be included in the baseline search.
1) Records Collection. Interviews with Government
Officials, and Title Searches
Generally, the first step in the baseline PRP search is to
initiate the information gathering tasks. The information
gathering tasks are Agency Records Collection, Interviews with
Government Officials, and the Title Search. These tasks should
be conducted concurrently. Consistent with the search plan, a
contractor work assignment may be prepared. The contractor work
plan should be focused so as to not provide for extensive efforts
on searches for non-existent or largely irrelevant documents.
First, offices with relevant records at the Federal, State,
and local government levels should be identified and copies of
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OSWER Directive 9834.3-2a
their records should b© obtained, interviews with government
officials should be conducted concurrent with government records
collection to develop information about on-site operations and
operators that may not b@ readily apparent in site-related
documents.
A title search should be initiated concurrent with the other
information gathering tasks to identify past and present site
ownerso Approximately 60-90 days into the PRP search,, the
results of the title search should be available for analysis. At
this time, information request letters should be formulated and
issued to the past and present owners of the site as well as any
identified operators.
a) Records Collection
Relevant Federal records may be found in the CERCLA, RCRA,
Air, and Water program offices of EPA as well as the Office of
Regional counsel. EPA program offices may contain permits,
inspection reports, and correspondence that provide information
on the activities which have taken place at the site. In
addition, other federal agencies and departments, such as the
Department of Interior, Bureaus of Mines and Reclamation, and
USGS, may be in possession of pertinent site records,
particularly in the case of mining sites.
Several State offices may contain relevant PRP search
documents. Among these offices are the appropriate State
Departments of Health and Natural Resources, the Superfund and
RCRA program offices, and the Offices of the Attorney General.
The Environmental, Water Conservation, and Soil Conservation
Boards may also contain pertinent site records. State government
offices may be in possession of licenses and permits, inspection
reports, contamination or environmental studies, sampling data,
and memoranda and correspondence between site owner/operators and
State officials.
Relevant local government records can be found in the Office
of the City or County Attorney, the Health Department, and the
Department of Public Works. Additional document sources include
the Wastewater Management or Pollution Control Departments, and
the Planning, Land Use, and Engineering Departments. Other
possible sources include zoning boards and police and fire
departments. Local government offices generally contain accident
reports, permits and licenses, local disposal guidelines,
inspection and violation reports, and memoranda and
correspondence between site owner/operators and local officials.
In some cases, local offices may contain site history memos and
lists of hazardous materials prepared by local officials.
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OSWER Directive 9834.3-2a
b) interviews with Government Q££lcials
Interviewing complements the collection of relevant site
records and aids in the development of site-specific information
that may not be recorded in government or PRP documents.
Interviews may identify relevant site records, permits, and
clean-up orders. Interviews may also help to identify the
existence of relevant documents such as hauler licenses, business
licenses, landfill permits, zoning permits, building permits, and
zoning ordinances.
State and local officials can be particularly helpful in
identifying knowledgeable people for interviews. They may know
the names of the operators. Further, they may be able to direct
the investigator to other government officials or persons with
knowledge of the site and operations. They may also know of
current or former site employees who may be willing to be
interviewed. Finally, State and local officials may know of
citizens groups and site neighbors who may have information about
the site or know of persons who do.
c) Title Searches
Title searches are performed to identify past and present
site owners. In addition, based upon potential access needs, the
search may extend beyond the site to present nearby owners. In
general, past owners are liable if they were owners at the time
of disposal (Section 107(a)(2) CERCLA). The title search area
and time period should be clearly defined. A legal description
of the site is best,' however, county tax assessors parcel numbers
and the street address are also helpful. In developing as
precise a description of the title search area as possible, the
PRP search manager ensures that the title search will be
accurate.
In general, title search companies only provide a summary of
the chain-of-title. Accordingly, their review of title records
does not focus on environmental conditions at the site. EPA or
the PRP search contractor should, therefore, assure review of
leases and deeds for restrictive language concerning groundwater
or land use.
2) Section 104(e) Information Requests
CERCLA Section 104(e)/RCRA Section 3007 information requests
should be issued to the owner/operators identified in the title
search, documents, or interviews during the baseline phase of the
PRP search. In some cases, it may be prudent to conduct an
interview with the party prior to issuing the information
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OSWER Directive 9834.3-2a
request. This helps to establish the availability of records and
focuses the process of formulating the information request.
The information request letter should identify the site. It
should cite EPA's statutory authority, and indicate that the
Agency plans to enforce this authority. Specific reference
should be made to the enforcement provisions in Section I04(e)(5)
of CERCLA.
Recipients should be requested to provide information as
indicated in the Final Guidance on Use and Enforcement of CERCLA
Information Requests and Administrative Subpoenas. (OECM, August
1988). This includes the following categories of information:
o Owners;
Names and addresses, including updated
information;
Periods of ownership and type of ownership;
Corporate successorship;
Site history during ownership including;
o Activities;
o Operations;
o Disposal [information on disposal and the
substances disposed of at the facility during
periods of past ownership and operation (for
liability) and amounts, nature, and locations
(for the remedial investigation)];
o Site conditions;
Information on whether wastes were RCRA hazardous
wastes (for evaluation of potential ARARs);
Lessors/lessees and the above information;
- Information related to defenses ; de minimis
status;
For small businesses, individuals with control.
o Operators;
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OSWER Directive 9834.3-2a
Similar to owner information, except for
operations;
Individuals in charge.
Financial Information;
Ability to pay;
Insurance (PRP's comprehensive general liability
and environmental impairment insurance: general
questions about the insurance coverage and copies
of the policies).
Information that the owner/operator has concerning
wastes sent to the site and possible generators and
transporters;
Periods, names/addresses of generators and
transporters, quantities, and substances;
Any arrangements made with regard to materials
sent to or from the site;
A description of information that the
owner/operator has on the total amount and each
shipment of materials transported to, or stored,
treated, or disposed at the site including:
o Dates of shipment or disposal;
o Quantity and nature of the materials;
o Hazardous substances (as defined in 40 CFR
Section 302.4) contained in the materials.
This includes information on the waste and
waste stream as possible RCRA hazardous
wastes to enable the Agency to determine if
the RCRA regulated waste may be an ARAR
(e.g., land ban)
Updated names and addresses.
Documents;
Copies of all business records relating to
activities at the site, including customer lists,
gate logs, ledgers, invoices, accounts receivable,
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OSWER Directive 9834. 3-2a
and back-up income records for taxes,
correspondence .
o Names and addresses of individuals who have information
regarding the above;
o Any data or studies resulting from environmental
investigations at the site;
o A description of the files searched by the person, or
corporation, in response to the Agency's request;
o Special information for particular classes of sites,
such as municipal landfills;
o A description of the recipient person's or
corporation's relationship to the site.
The letter should indicate that it is the PRP's
responsibility to inform the Agency if any of the material
provided in their response is confidential and subject to
protection under Section 104(e)(7) of CERCLA. In those cases
where the recipient is unable to provide the agency with the
information sought, the recipient should provide EPA with an
affidavit describing the scope of the investigation conducted by
the recipient in response to the Section 104 (e) letter.
3 ) Enforcement of Non— Compliance with Information
Requests Issued Under Section 104 (e)
The Agency may compel compliance with a request for
information by Administrative Orders and Judicial Actions. If a
response to an information request is not received within the
specified time period, usually 30 days, the program and Regional
Counsel offices must consider taking appropriate enforcement
action.
a) A.djuniSJtrative Orders
Under Section I04(e)(5), the Agency can issue administrative
orders, subject to notice and opportunity for consultation, to
compel compliance with information requests. These should be
sent promptly to a recipient who has not responded to the request
for information. If the recipient, after receiving the order,
continues to ignore the request for information, the Agency may
petition a Federal District Court to enforce the order.
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OSWER Directive 9834.3-2a
b) Judicial Actions
Section 104(e)(5) of CERCLA provides the Agency with the
authority to initiate a civil lawsuit with penalties to compel a
person to respond to a request for information. These penalties
are based upon strict liability, and the Agency does not have to
prove that the recipient intended to violate the law by not
responding in a timely manner.
Judicial actions are referred to the Department of Justice
for enforcement. When the Agency refers a case to DOJ, the
referral should be handled in accordance with the procedures set
forth in Expansion of Direct Referral of Cases to the Department
of Justice. (OECM, January 1988). In time-critical situations,
the region should refer to Procedures for Processing Oral and
Other Expedited Referrals. (OECM, December 1987) , and Waste
Procedures for Processing Oral and Other Expedited Referrals.
(OECM, April 1988).
c) Criminal Proceedings
It is a criminal offense to mislead the government as to the
absence of information or the content of information. Such
matters should be discussed with Regional Counsel.
d) Administrative Subpoenas
In addition, administrative subpoenas are authorized under
Section 122(e)(3)(B) of CERCLA. A subpoena compels an individual
to answer questions under oath, and when requested, to produce
documents. Regional Counsel may secure issuance of the subpoena
and select the location for the hearing. If the individual
ignores the subpoena. Regional Counsel will prepare a judicial
referral to compel the witness to respond.
Administrative subpoenas are not generally used for initial
information gathering. The Agency has stated a preference for
using information request letters, under Section 104(e)(2), to
obtain initial information about a person's involvement at a
site.
4) Updating PRP Status
At many sites, disposal took place years ago. Since that
time the companies that owned and operated the site may have
moved, been sold, .or have gone out of business. For these
reasons, information on owners and operators must be updated and
followed-up. The current address of the company should be
determined, if possible. It should be determined if a company is
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OSWER Directive 9834.3-2a
defunct and not dissolved, dissolved, or been through bankruptcy.
If the company has been sold or merged with another company,
corporate successor liability should be considered. The search
manager should consult with the Office of Regional Counsel and
Triif*)t?1 lity of Corporate Shareholders and Successor Corporations
for Abandoned Sites Under the Comprehensive Environmental
Response. Compensation, and Liability Act (CERCLA) . (OECM, June
13, 1984).
If the company has gone out of business or lacks resources,
several avenues should be considered. First, the company may
have had insurance. Second, if the company was the subsidiary of
a larger company, the parent corporation may be liable. Third,
individuals who controlled operations may be liable. The search
manager should consult with the Assistant Regional Counsel on
these matters.
5) Analysis. Follow-up, and Additional Research
Documents, interview summaries, and responses to information
requests should be organized consistent with the information
management provisions of the PRP search plan. They should be
analyzed for information that links a party to the site, the
sufficiency of evidence that establishes the liability of a PRP,
financial viability, and leads that may provide the Region with
additional information about a PRP's and other PRPs involvement
with the site.
The information contained in the documents, interview
summaries, and information request responses should be used to
develop a history of site activities and the involvement of
various parties in the treatment or disposal of hazardous
substances. The history should begin with the events immediately
preceding the first industrial use/disposal at the site and
continue through the present. The focus should be activities and
the involvement/association of owners and operators, with leads
on generators and transporters and not reconstruction of site
history. Therefore, lengthy historical narratives should be
avoided.
A list of parties associated with the site who may be PRPs
should be developed. The information in the documents,
interview summaries, and information request responses which
pertain to their liability should be evaluated on evidence
evaluation sheets created expressly for this purpose. A separate
sheet should be kept for each PRP. These evaluation sheets serve
to indicate the status of searches into the liability of each PRP
from a completeness, legally admissable evidence, and financial
viability perspective. Where a key item of information is
13
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OSWER Directive 9834.3-2a
provided by a party other than that PRP, a tailored information
request may be used to ascertain the PRP's view of these facts.
Also, hearsay information should be verified by admissable
evidence. Interviews to verify past and present owner/operator
liability may be conducted during this phase or in the follow-up
phase.
In addition to developing a site history and extracting
evidence on the liability of owners and operators, the documents,
interview summaries, and information request responses should be
analyzed for leads which may provide additional information about
PRPs associated with the site. These leads, in addition to any
other leads which may be obtained through interviews and
information requests, should be documented and appropriate
follow-up action should be taken.
Through a combination of interviews, records collection, and
information requests, additional information on owners and
operators and the names of possible generators and transporters
should be gathered. Generator liability is further developed in
the second phase of the PRP search. Care should be taken that
all follow-up work is documented and an indication is clearly
provided as to the source o-f the information. If sufficient
evidence on the liability of owner/operators has been developed
through the title search and information requests, General Notice
Letters should be issued before the baseline report is prepared.
6) Baseline Report Preparation and Review
The baseline report contains a concise summary of
information obtained to date from the baseline search activities.
The report provides information on owner/operators and leads on
generators and transporters which enable the search manager and
Regional management to assess the extent and nature of gaps in
PRP liability data. References and back-up information are set
forth in a series of appendices. The format and content for a
PRP search report is presented in the PRP search reports section
of this document. The report should be stamped: "Enforcement
Confidential, FOIA Exempt, Prepared in Anticipation of
Litigation."
Information in the report should be carefully reviewed by
the PRP search manager, Regional Civil Investigator, Office of
Regional Counsel, and Regional management. This review should
take into consideration whether all possible owners and operators
associated with the site have been identified, the completeness
of waste-in information, the sufficiency of the evidence
documenting a PRP's liability and financial viability, and the
appropriate work to be performed in the follow-up phase.
14
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OSWER Directive 9834.3-2a
B) Fo1low—UP Phase
The follow-up phase builds upon the information presented in
the baseline report through additional inquiries and the use of
the baseline information gathering tasks and some of the 18
specialized tasks identified in the PRP Search Manual;
SPECIALIZED TASKS
o Sources of Information
PRP File Review
Private Party/PRP Interview
Field Survey
Site Sampling
Site Enforcement Tracking System (SETS)
Aerial Photographs
CERCLA Subpoenas
Private Investigator
o Waste Stream Analysis
Industrial Surveys
Process Chemistry Analysis
Waste Stream Inventory
o Databases
Transactional Databases
Correspondence Tracking Databases
Document Inventory Databases
o Miscellaneous Tasks
Compliance History
Financial Assessment
Generator Ranking
Property Appraisal
This phase should supplement the baseline search to produce a
report which identifies owner/operators, persons who arranged for
treatment or disposal (e.g., generators), and transporters. It
provides information for General and Special Notice Letters,
evidence of liability, and information on financial resources.
The PRP search plan should be updated to focus on follow-up
efforts. For the follow-up phase discussion, the process will
be broken into five categories: Section 104(e) Information
Requests; Supplemental Information Gathering; Analysis, Follow-
up, and Additional Research; Interim Final Report Preparation;
15
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OSWER Directive 9834. 3-2a
and Interim Report Follow-up . The particular steps to be taken
at any site are based upon the likely universe of PRPs and the
availability of information, as set forth in the updated plan.
1) S^c£JLojQLJjyiJLe ) Inforjnation Requests
Usually, the first step in the interim final phase is to
issue Section 104(e) information requests to potential generators
and transporters who were identified in the baseline report.
Additional generators and transporters are likely to be
identified during the follow-up phase. Information requests
should be sent to them as they are identified. The Section
104 (e) information request section in the baseline phase of this
document discusses information request content and non-compliance
enforcement strategies. Information requests should focus on the
hazardous substances in the wastes (CERCLA Section 101(14) and 40
CFR Section 302.4) , the volumes or quantities sent to the site,
the dates or time periods of the shipments, and the generator's
financial viability. The information request letter should also
elicit any information the PRP has or contends to have which
establishes that its waste was never sent to the site or was
removed before EPA, the State, or someone else undertook a
response. For transporters., a critical issue is whether the
transporter selected the site. It is extremely important to
obtain all potentially relevant documents. The potential for
evasive and incomplete responses is substantial.
While generator and transporter information requests are
being issued, it may be appropriate to send a follow-up
information request to one or more of the owner/operators who
were issued a request during the baseline phase. If a request is
sent, it should be targeted at obtaining more specific
information regarding site operations, record keeping, or
liability.
2) Sujg^LementaJLJCnformation Gathering
Often, the second step in the follow-up phase is to gather
further information about the site and the PRPs through
information gathering tools similar to or expanding upon those
which were used in the baseline search. While some activities,
such as obtaining aerial photographs, may be focused primarily on
past owners and operators or site conditions, the primary focus
will be generators and transporters. The supplemental
information gathering tools include Private Party/PRP Interviews.
In most cases, they are performed by the Regional Civil
Investigators.
16
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OSWER Directive 9834.3-2a
Throughout the follow-up phase, inquiries should be focused
on contacting and interviewing private individuals to supplement
information about waste disposal practices at the site and
owner/operator involvement, as well as the contributions of
generators and transporters. Relevant documents may include
bills of lading, ledgers, accounts payable records,
correspondence, and invoices. Interviews and subpoenas may
supplement information requests. Particularly in those cases
where there are issues as to the hazardous nature of wastes,
process engineering information may need to be obtained and
analyzed. Where there is a dearth of documents, private
investigators may be hired to flesh-out details through private
party interviews. In addition to providing information on the
liability of PRPs, these sources may provide leads which may
point to further avenues of investigation.
3) Analysis, Follow-up, and Additional Research
As information request responses are received, records are
collected, and interview summaries are written, they should be
managed in accordance with the information management component
of the PRP search plan. These new references should be analyzed
for information that links a party to the site, liability, and as
necessary, financial viability and successor liability. This
information should be entered onto the evidence evaluation sheets
for the particular class of party. If new PRPs are discovered,
evidence evaluation sheets should be created for them.
As with the original references collected during the
baseline search, these new references should be reviewed for
additional leads. These leads should be documented and
appropriate follow-up action should be taken. Before the interim
final report, or a preliminary version of the interim final
report, is submitted, all references should be reviewed to assure
that all leads have been documented and followed.
Gaps in generator and transporter information as well as
leads identified during the reference analysis and review should
be followed-up. Adequate information to satisfy Special Notice
(names and addresses of PRPs, volume and nature of substances
contributed by each PRP, and ranking by volume of the substances
at the facility) should be secured. Follow-up should also focus
on evidence of liability (e.g., hazardous substances) and
financial viability. If sufficient evidence of liability has
been collected for a generator or transporter, General Notice
Letters, when appropriate, should be issued before the interim
final report is prepared.
17
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OSWER Directive 9834. 3-2a
4) Interim Final Report
The interim final report is an expanded version of the
baseline report. It includes substantial information on
generators and transporters and focuses specifically on
establishing liability and financial viability. It should
satisfy Special Notice requirements. The evidence evaluation
sheets, by now, should contain satisfactory evidence on liability
for most PRPs. The format for the interim final report is the
same as that for the baseline report. The reports preparation
section of this document contains a fuller discussion of reports
format .
In general, the Interim Final PRP Search Report should be
completed in time for the issuance of Special Notice Letters and
the release of information under Section 122 (e) of CERCLA, which
includes PRP names and addresses and the volume and nature of
substances at the site. When possible, this takes place
approximately six months before the issuance of RI/FS Special
Notice Letters. In some cases, particularly large multi-party
sites, it may be necessary to prepare preliminary information in
order to release information to the PRPs as well as to issue
Special Notice Letters. Updated versions of the report can then
be prepared for the RD/R& Special Notice, and possibly, for
CERCLA Sections 107 and 106 actions.
5) Interim Final Report Follow-up
Information on new PRPs, as well as additional evidence on
the liability of existing PRPs, is likely to be uncovered after
the completion of the interim final report. For this reason a
PRP search is an on-going investigation. Unless there is a full
settlement, the search does not end with the completion of the
interim final report, the issuance of General and Special Notice
Letters , or the release of the contractors from a work
assignment. A PRP search continues until all reasonable leads
concerning a persons involvement with the site have been
exhausted through interviews, records collection, or section
104 (e) information requests.
IV. PRP SF&RCH^REFQRTS FORMAT &ND CONTENT
The baseline and interim final PRP search reports include
summary search information with a series of appendices containing
back-up documentation. The reports should contain a concise site
history, information on the PRPs within the four classes of
liable parties, an indication of a PRP's financial position, if
needed, special site information, and a section containing the
18
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OSWER Directive 9834.3-2a
names of other possible PRPs. In placing a party into one of the
four classes, a preliminary determination of potential liability
should be made; a final determination will be made at a later
date. The appendices to the PRP search reports should contain
evidence evaluation sheets for each PRP, a summary of work
performed during the search, supporting documentation, and the
location of supporting files. An outline for the reports and
their appendices is set forth in Attachment 2.
A) PRP Search Reports
1) Site History
The site history should include general background
information about the site as well as a history of the facility.
The history of the facility as a hazardous substances site should
begin with the first industrial use/disposal at the site and
continue through the present. It should describe operations by
the particular kinds of activities with an identification of
owner/operators during each period including principal
individuals. It should summarize the amounts and types of wastes
brought in (for generator sites), and amounts and location of
disposal. It should also include by reference any data on
substances at the site (e.g., in drums).
2) Identification of Owner/Operators
The owner/operator section of the reports should describe
the time period during which a person owned or operated the
facility and explain what, if any, hazardous substances were
disposed of and by whom during each period. It should be based
upon the title search results for owners, and other information
for operators. A current name and address should be provided for
the owner/operators as well as their registered agent.
The owner/operator section should include a title abstract
or narrative provided by the title search company or title
researcher. To aid the reader in reviewing title search results,
a title tree or graphs depicting chain-of-title should be
provided. Any restrictive language in the title concerning use
due to wastes deposited at the site or past industrial practices
should be noted.
3) Generators
The generator section of the reports should identify persons
who, there is a reasonable basis to believe, arranged for the
treatment or disposal of hazardous substances. Information about
these persons should be provided in both a PRP summary and a
19
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OSWER Directive 9834.3-2a
volumetric ranking list format. The summaries are developed
primarily for General and Special Notice Letter mailings. The
PRP list should contain the current name and address for each PRP
and the volume and nature of substances sent to the site. The
ranking lists PRPs by volume. This information is developed from
the evidence summary sheets in the search reports appendix.
Depending on the complexity of the site, the Region may
develop an enforcement confidential listing by PRP of information
that expands upon the chemical nature of the substances (40 CFR
Section 302.4), and links shipment/volumetric conclusions to
particular transporters and documents. In some cases, the Region
may.also wish to develop additional information for the
litigation referral on ignitability, corrosivity, reactivity, and
EP toxicity. In these instances, there should also be an
assessment of whether the wastes were RCRA hazardous wastes for
ARAR purposes.
4) Transporters
The transporter section of the reports should identify
persons who accepted hazardous substances for transport and
selected the treatment or disposal facility to which the shipment
was sent. Information about these persons should be provided in
both a PRP summary and a volumetric format. The summaries, which
are developed for General and Special Notice Letter mailings,
should be similar to the generator lists in content.
5) Special PRP Information
This section of the reports is for special information which
may have a bearing on whether a party is ultimately designated by
EPA as a PRP. For example, where in question, an assessment
should be made of a PRP»s financial viability. Similarly,
entities that have been or are in bankruptcy should be
identified. Individuals who are deceased should be identified
and the status of their estates should be described. And,
successor corporations, situations in which individuals may be
liable, and parent-subsidiary relationships should be discussed.
6) Special Site Information
This section should be used to present information on
special sites only. These sites include municipal landfills,
area-wide groundwater or stream contamination, where the source
of contamination is not clear, and sites where wastes were sent
to satellite facilities. Municipal landfill PRP searches involve
a number of complex issues. The Agency will soon be issuing a
municipal policy.
20
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OSWER Directive 9834.3-2a
Special surveys and remedial investigations data, which will
be used to determine the source of a hazardous substance release
for area-wide groundwater contamination and stream contamination
sites, should be presented in this section. Data on remote
sites, where a company with multiple sites shipped wastes between
sites, should also be presented here.
7) Other Possible PRPs
This section of the reports should include parties who, due
to a lack of sufficient information on liability, cannot be
categorized in one of the four classes of potentially responsible
persons in Section 107(a) of CERCLA. It should be organized in
the same fashion as the owner/operator section for
owner/operators, and the PRP summary and volumetric ranking
formats of the generator and transporter sections for generators
and transporters. The missing information on liability should be
clearly identified. This information is developed from the
evidence summary sheets contained in the PRP search report
appendix.
B) PRP Search Report^ Appendices
Evidence summary sheets, a summary of all work conducted
during the search, and all documentation supporting the
information contained in the evidence summary sheets and the PRP
search reports should be compiled and presented in one or more
appendices to the PRP search reports.
1) Evidence Summary Sheets
During the PRP search, information on liability will be
extracted from government and PRP documents, interview summaries,
title documents, and Section 104(e) letter responses and entered
onto evidence summary sheets. There will be three different
types of sheets: owner/operator, generator, and transporter. The
information on these sheets will be used to prepare the PRP
search reports. These sheets are enforcement confidential, and
should be secured. They should be stamped: "Enforcement
Confidential, FOIA Exempt, Prepared in Anticipation of
Litigation."
a) Owner/Operators
A single evidence summary sheet should be kept for each
owner/operator (Attachment 3). These summary sheets contain the
back-up information for the owner/operator section of the PRP
search reports: current PRP name and address, the time period
during which a person owned or operated the facility, and an
21
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OSWER Directive 9834.3-2a
indication of what hazardous substances were disposed of during
the period of ownership or operation. All of the information on
the summary sheets should be referenced to supporting documents
within the appendix.
b) Generators
For each generator, a separate evidence summary sheet will
be prepared for each shipment or group of shipments of a
hazardous substance which was shipped to the site for treatment
or disposal (Attachment 4). The volumetric listing by generator
in the PRP search report and the PRP summaries are both derived
from the information contained in the evidence summary sheets.
The generator evidence summary sheet should contain the
following information: current PRP name and address, the name
and address of the PRP's registered agent, the time period during
which the hazardous substances were sent to the site, the volume
and identification by name of the hazardous substances and EPA's
determination of any RCRA waste codes and information that
substances like that of the generator were found at the site
(this may be verified in the RI). All of the information on the
summary sheets should be referenced to supporting documents
within the appendix.
c) T,rgn?. Porters
Evidence evaluation sheets should be kept for all
transporters who accepted hazardous substances for transport and
selected the treatment or disposal facility to which the shipment
was sent (Attachment 5). As with the generator volumetric
listing, the transporter shipment list in the PRP search reports
is a summary derived from the evidence summary sheets.
The transporter evidence summary sheets should contain a
current name and address for the PRP, the name and address of the
PRP's registered agent, the time period during which the shipment
was sent to the site, the volume and nature of the hazardous
substances, and an indication of the type of evidence suggesting
that the transporter selected the treatment or disposal site.
All of the information on the summary sheets should be referenced
to supporting documents within the appendix.
2) Summary of Work
This section of the appendix should summarize all of the
research conducted by the PRP search contractor and EPA personnel
during the PRP search. The summary should begin with a brief
description of the tasks performed under the PRP search work
22
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OSWER Directive 9834.3-2a
assignment by the contractor. The work assignment tasks should
be followed by a listing of the name, address, and telephone
number of all contacts made during the collection of records from
government offices and PRPs. This listing should indicate
whether any information was obtained, any follow-up action was
planned, and the status of any planned follow-up action. All
"dead-end" leads should be noted.
The appendix should also list the name, address, and
telephone number of all interviewees and all persons to whom
section 104(e) information request letters were sent. For
interviews, the listing should include the date of the
interview(s), whether any follow-up action was planned, and the
status of any planned follow-up action. For Section 104(e)
letters, this listing should include the date(s) on which letters
were sent and responses were received, and whether any follow-up
action was taken.
A section should be devoted to any leads which could still
be pursued.
3) Supporting Documentation
Documents supporting the factual information gathered during
the PRP search should be grouped by source and within source by
PRP. Section 104(e) letters and responses should be organized
alphabetically and maintained for ready production to PRPs as
provided by law. Government documents, title search documents,
PRP documents, interview summaries, and Section 104(e) letters
and responses should be grouped separately. While reorganization
by PRP may be done by copying, evidentiary concerns regarding
proof of authenticity and business records must be satisfied.
One solution is copying and refiling the copies in PRP files.
Index numbers should be assigned to all documents to ease
referencing of the evidence summary sheets and the PRP search
report. Consult the PRP Search Manual specialized tasks on
database creation if key-word or cross-referencing systems are
desired.
An index of the documents should be created. Standard
bibliographic form, which includes document title, date, author,
and addressee, is recommended.
Attachments
23
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CONTRACTOR RESPONSIBILITIES
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ACCESS SETS FOR EMSHNG PRP
UPDATE OWNER/OPERATOR PRP
• OEVaOP AND KEVCW 10409 ICTW
• SET-UP CORRESPONDENCE -----
• ISSUE 104(E) LETTERS TO
• COLLECT
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PRP NAMES AND MAUNG
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a
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OSWER Directive 9834.3-2a
Attachment 2
PRP SEARCH REPORTS FORMAT
I. PRP SEARCH REPORTS
A. Concise site history including nature of activities
during specified time periods and any sampling results
B. Identification of owners and operators
1. Describe the time periods during which the person
owned and/or operated the facility and state
whether the disposal of hazardous substances
occurred during that period
2. Describe title search results
3. Provide copies of complex title analysis narrative
plus a title tree and graphs representing title
search results
4. Describe activities of various operators
5. Current address and corporate status
C. Identification of persons who arranged for either the
treatment or disposal of the hazardous substances,
e.g., generators
1. Summarize each PRP's name and current address,
volume and nature of the substances, and
volumetric ranking (This is for Special Notice)
2. Develop by PRP, as necessary, a complete waste-in
list with information on the period when the
substances were sent to the site, volume and
identity of the hazardous substances (40 CFR §
304.2) and EPA's determination of any RCRA waste
codes. Ensure that there are references to
underlying documents and transporters in this list
or in the evidence sheets in the Appendix. (This
is a summary of evidence and is for internal
purposes; it is based on the evidence sheets.)
D. Identification of transporters
-------
OSWER Directive 9834.3-2a
1. Summarize each transporters' name and current
address, volume and nature of the substances, and
volumetric ranking (This is for Special Notice.)
2. Develop by each transporter, as necessary, a list
that:
a. Links transporters to generators (and
therefore hazardous substances) to the site,
and
b. Addresses whether the transporter selected
the site for disposal and treatment.
E. For owners, operators, generators, and transporters,
assess the identified PRPs' financial viability (where
in question). Identify entities that have been or are
in bankruptcy, corporations that are defunct (no longer
in business but not dissolved) and corporations that
are dissolved, and individuals who have died, with a
description of the status of their estate. Describe
the facts in corporate successorships, parent-
subsidiary situations, and possible individual
liability.
F. Information for Special sites:
1. Municipal Landfills
2. Area wide groundwater contamination or stream
contamination where sources are not clear (relies
on special surveys and the Remedial Investigation)
3. Remote sites (company with multiple sites and
transshipments).
4. Special financial and capacity issues
G. Other possible PRPs (list PRPs not in parts B,C, or D
above due to substantial evidentiary issues).
II. PRP SEARCH REPORT APPENDICES
A. Evidence evaluation sheets for each owner, operator,
generator, and transporter (include source of
evaluation)
B. Summary of all work conducted during the PRP search
1. Document investigatory steps during the search,
including "dead end" leads
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OSWER Directive 9834.3-2a
2. Identify persons interviewed and. corporations and
individuals to whom information request letters
were sent. In addition, identify each response to
the information request letters and any follow-up
actions that were taken. Clearly identify the
dates of each of the above activities.
3. Identify leads that could still be pursued
C. Supporting documentation consistent with information
management plan. For each source of documents assign
document control numbers.
1. Certified copies of Title documents
2. Government documents
, 3. Interview summaries
4. Manifests, contracts, invoices, etc.
5. Section 104(e) letters and responses (keep
separate for FOIA purposes).
6. Other
D. Location of supporting files.
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OSWER Directive 9834.3-2a
Attachment 3
ENFORCEMENT CONFIDENTIAL, FOIA EXEMPT,
PREPARED IN ANTICIPATION OF LITIGATION
OWNER/OPERATOR
EVIDENCE SUMMARY SHEET
Current Name, Mailing Address, and REFERENCES
Telephone
Status (owner, operator, etc.)
Period(s) of Ownership/Operation
What Hazardous Substances were Disposed
During Period of Ownership/Operation
(40 CFR Section 302.4)
RCRA Waste. Codes
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OSWER Directive 9834.3-2a
Name, Mailing Address and Telephone of
Registered Agent
-2-
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OSWER Directive 9834.3-2a
Attachment 4
ENFORCEMENT CONFIDENTIAL, FOIA EXEMPT,
PREPARED IN ANTICIPATION OF LITIGATION
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OSWER Directive 9834.3-2a
Other Issues (e.g., not an arrangement for
disposal or treatment)
Name, Mailing Address and Telephone of
Registered Agent
-2-
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OSWER Directive 9834.3-2a
Attachment 5
ENFORCEMENT CONFIDENTIAL, FOIA EXEMPT,
PREPARED IN ANTICIPATION OF LITIGATION
TRANSPORTIgR
EVIDENCE SUMMARY
Current Name, Mailing Address, and Telephone REFERENCES
Date or Time Period of Transport
Volume or Quantity
Name of Hazardous Substance (See 40 CFR
Section 302.4)
Transporter Selected Treatment or Disposal
Site
Name, Mailing Address, and Telephone of
Registered Agent
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