United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
oEPA
DIRECTIVE NUMBER: 9833.5
TITLE: Guidance on Procedures for Submitting CERCLA
Section 106(b) Reirrtoursement Petitions and on
EPA Review of Those Petitions
APPROVAL DATE: June 29, 1992,
EFFECTIVE DATE: June 29, 1992,
ORIGINATING OFFICE: OWPE
S FINAL
» ^
D DRAFT
LEVEL OF DRAFT
n A Signed by AA or DAA
0 B Signed by Office Director
n C Review & Comment
REFERENCE (other documents):
OSWER OSWER OSWER
VE DIRECTIVE DIRECTIVE Dl
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U.S. Environmental Protection Agency
OWPE Directive Initiation Slip
Jama of Program Contact Person: Mall Coda:
Fred Zimmerman OS-510
Office: Telephone:
OWPE 202-260-2034
Document (lumber: Does document supersede a previous one? ^3 No QYes Doc. No.
Does document sup
9833.5
Title: Guidance on Procedures for Submitting
and on EPA Review of those Petitions
plement a previous one? Q No S Yes Doc. No. 9833.2
CERCLA Section 106 (b) Reimbursement Petitions
Document Abstract: This document describes the procedures for submitting a CERCLA Section
106(b) petition. In addition, this document describes EPA's process for reviewing
the petitions.
Keywords: CERCLA Section 106(b), reimbursement petition, petitioner, administrative record
index, completion, compliance, and order.
Number of document pages (excluding OSWER Target au
Initiation Request sheets):
19 PRPs,
Special requirements:
N/A
Planned issue date: Documen
ASAP
Document Status: Date on Title Page:
Signed . June 29, 1992
dience(s):
Regional Program & Counsels
t Number Assigned (date):
Transmittal Memo signed by:
Bruce Diamond
-
Final distribution to: - 3 Waste Mgt. Div. Dirs. Regs. I-X Q RCRA Branch Chiefs $ NTIS
S Superfund Branch Chiefs Q RAs, Regions I-X Q GPO
QEDRS: Q Hard copy Q Diskette Q Depository libraries Q EPA Library -
& OSWER Directive Coordinator Q Regional paralegals Q States by HQ
SlOtherOE,OGC,DOJ
Will final document be releasable to the public? XXYes Q No
If not, cite appropriate FOIA exemptlon(s):
Will document be publicly available at a later date? (21 Yes Q f>
If yes, enter approximate time frame: As soon as
paperwork is complete. ASAP'
Comments:
Jo
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6EPA
States cn
Washington, DC 204«0
,
OSWER Directive Initiation Rennet
Name of Contact Penon
Fred Zimmerman
1. Originator Information
Mail Cod* Office
OS-510 OWPE
N^mctf
9833.5
Tetepnone Code
202-260-2034
3. Tiil« Guidance on Procedures for Submitting CERCLA Section 106(b)
Reimbursement Petitions and on EPA Review of these Petitions
4. Summary of Directive (incuce onel statement ol purpose) .
This document describes the procedures for submitting a CERCLA Section 106(b)
petition. In addition, this document dexcribes EPA's process for reviewing
the petiitons.
CERCLA Section 106(b), reimbursment petition, petitionary order, administrative record
index
6a. Ooes This Directive Supersede Previous Oirective(S)?
b. Ooes it Supplement Previous Qirective(s)?
No
No
Yes What directive (numoer. title)
Yes What directive (number, title)
Consent Orders and the Reimbursement Provision Under Section 106(b) of CERCLA
C_ratt level
A - Signed by AA/OAA
3 Signed by Office Director
! -.For Review 4 Comment
0 - in Development
8.
Document
to
be
distributed
to
States
by Headquarters?
Ye, [Tj
No
This Request Meets OSWEB Directive* System Format Standard*.
9. Signature of Lead Office Directives Coordinator
\ 0. Name and Title of Approving Official
Oat*
Oat*
EPA Form 1315-17 (Rev. S-*7) Previous editions a/* obsolete.
OSWER 0?'VER OSWER 0
VE DIRECTIVE DIRECTIVE DIRECTIVE
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ito sr
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Paul Bangser, Office of General Counsel
James Handley, Office of Enforcement
Bill Ross, Office of Emergency and Remedial Response
Caroline Previ, Office of Solid Waste and Emergency
Response
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OSWER Directive Number 9833.5
Guidance on Procedures for Submitting CERCLA Section
106fb) Reimbursement Petitions and on EPA Review of Those
Petitions
Date: June 29, 1992
Office of Waste Programs Enforcement
This document is solely intended as guidance. It does not
establish a binding norm and is not finally determinative of the
issues addressed. This document is not intended to be a synopsis
of principles of law. The policies and procedures in this
guidance do not constitute a rulemaking by the Agency, and may
not be relied on to create a substantive or procedural right or
benefit enforceable at law by any person. The Agency may take
action at variance with this guidance.
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Table of Contents
I. Introduction 1
II. Contents of a Section 106fb) Petition 1
A. Background Information 1
B. Elements of a Petition . 2
C. Threshold Statutory and Regulatory Requirements ... 2
D. Statutory Standards for Reimbursement 4
E. Reasonable Costs Plus Interest 5
III. Agency Procedures for Processing Section 106(b)
Petitions 5
IV. Access to Information and Confidentiality 10
V. Regional Involvement in the Petition Review Process . . 12
VI. Further Information 13
APPENDIX A - Text of Section 106(b)(2)
APPENDIX B - Summary of Information for Inclusion with a
Reimbursement Petition
APPENDIX C - Conversation Sheet
FLOW CHART
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I. Introduction
This document sets forth guidance on petitions for
reimbursement submitted under section 106(b) of the Comprehensive
Environmental Response, Compensation, and Liability Act of.1980
(CERCLA), 42 U.S.C. § 9606(b), as amended by the Superfund
Amendments and Reauthorization Act of 1986 (SARA). This guidance
describes the contents of reimbursement petitions and the
procedures that EPA intends to use in responding to reimbursement
petitions.
CERCLA section 106(b)(2) allows a person who has complied
with an administrative order issued under section 106(a) of
CERCLA to submit a reimbursement petition to EPA for the
reasonable costs plus interest of a response action. A person is
entitled to reimbursement if the person can establish that s/he
is not liable for response costs under section 107(a) of CERCLA
or if the person can demonstrate that the Agency's selection of
the response action was arbitrary and capricious or was otherwise
not in accordance with law.
CERCLA section 106(b)(2) contains three key provisions.
Sub-section 106(b)(2)(A) requires a person to petition EPA within
60 days after.completion of the required action. Sub-sections
106(b)(2)(C) and (D) describe the substantive grounds for a
reimbursement petition. Sub-section 106(b)(2)(B) allows a
petitioner to file an action in a United States district court if
EPA denies, in whole or in part, a petition. Appendix A sets
forth the full text of section 106(b)(2). Appendix B is a
checklist of the items which should be submitted with a petition.
This guidance is intended to apply to petitions filed after
the date this guidance is issued. EPA may, however, in its
discretion, apply this guidance to the extent reasonable to those
petitions filed prior to the issuance of this guidance.
II. Contents of a Section 106(b) Petition
A. Background Information
All petitions should include the following background
information:
o the petitioner's full name, title, and address;
o the name, title, address, and telephone number of any
agent or attorney authorized to represent the
petitioner;
o the name and address of the facility at which the
response action was implemented; and
o the U.S. EPA Docket number for the Section 106(a)
order, and a copy of the order.
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All petitions for reimbursement should be sent by certified
mail, return receipt requested, to the following address:
Director
Office of Waste Programs Enforcement (OS-500)
U.S. Environmental Protection Agency
401 M Street, SW
Washington, DC 20460
EPA will not consider the petition received until the
petitioner sends the petition and all necessary information to
the Office of Waste Programs Enforcement (OWPE) at the above
address. However, the petitioner should also send a copy of the
petition including any attachments to the EPA regional program
office that issued the underlying administrative order.
B. Elements of a Petition
Petitioners should include in their petitions all legal
arguments and all technical, scientific or other factual evidence
supporting their claims. All documents that petitioners rely on
should be included as attachments to the petition. EPA retains
the right not to consider information submitted by a petitioner
after its petition is filed. EPA will, of course, consider
information properly submitted by the petitioner in commenting-on
EPA's preliminary decision (see Section III).
EPA encourages petitioners not to submit frivolous or
unsupported petitions. The Agency may seek from petitioners any
Agency costs incurred in processing a frivolous petition.
C. Threshold Statutory and Regulatory Requirements
Section 106(b)(2) establishes certain threshold statutory
requirements for reimbursement. Therefore, each petition should
include information demonstrating that it meets the following
threshold requirements:
The President's authority to implement Section 106 was.
delegated to the Administrator of EPA by Executive Order 12580
(January 23, 1987). The authority to receive, evaluate, and make
determinations regarding petitions for reimbursement submitted
pursuant to CERCLA Section 106(b) was then delegated to the
Assistant Administrator for Solid Waste and Emergency Response, and
re-delegated to the Director of the Office of Waste Programs
Enforcement (OWPE). Concurrence of the Director of the Office of
Emergency and Remedial Response is required on determinations and
decisions authorizing payment (use of Fund monies). See
Delegations 14-27 and R-14-27 (Petitions for Reimbursement)
contained in the Superfund Internal Delegations of Authority
Memorandum, September-24, 1987.
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1) On or after October 17, 1986, petitioner received and
complied with the terms of an administrative order
issued by EPA under CERCLA section 106(a);
2) Petitioner completed the required action;
3) Petitioner submitted a petition for reimbursement to EPA
within 60 days after completing the required
response action; and
4) Petitioner incurred reasonable costs.
Each petition should include all information necessary for
EPA to evaluate these threshold requirements. This information
should include, but is not limited to, the following: a copy of
the administrative order; a petition containing the relevant
claims; documentation from the petitioner showing that it has
fully completed the action required by the administrative order
(AO) (see below); a copy of a letter from the petitioner to the
regional office certifying completion of the required action; a
copy of any correspondence from EPA's regional office relevant to
"completion" of the required action; and proof of the reasonable
costs incurred. If the petition does not show that these
statutory requirements have been met, then EPA will deny the
petition.
The right to petition for reimbursement under section
106(b)(2) is not available to parties who received their cleanup
order prior to October 17, 1986. OWPE will deny petitions
based on such orders.
Section 106(b)(2) requires a person to complete the required
action before submitting a petition. If the petitioner has not
completed the required action, then EPA may return the petition.
Once the required action is complete, the petitioner may refile
the petition within 60 days of completion.
The third threshold element of section 106(b)(2) requires a
person to file a petition within 60 days after completing the
required action. To meet this requirement, petitions should be
postmarked no later than the 60th day after the day when the
required action was completed. The petition should be sent to
OWPE by certified mail, return receipt requested. If the 60 day
time period for filing the petition with OWPE expires on a
See 40 C.F.R. §300.700(e). This section recognizes a
person's right to submit a petition after complying with an order
issued after October 16, 1986, unless the person has waived this
right.
3See, Waaner Seed Co. v. Bush. 946 F.2d 918 (D.C. Cir. 1991),
cert, denied. 60 U.S.L.W. 3687 (U.S. April 6, 1992) (No. 91-1140);
Bethlehem Steel Corp. v. Bush. 918 F.2d 1323 (7th Cir. 1990).
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Saturday, Sunday, or Federal legal holiday, then the time period
is extended to include the next business day.
Under the fourth threshold requirement, petitioner must
demonstrate that he or she has incurred reasonable costs. The
petitioner should submit documents with the petition reflecting
the costs that s/he incurred in performing the required action.
The documents should contain an itemized list of the costs
incurred in performing the response action, proof that the
petitioner paid these costs, and proof that the party performing
the work accepted the payments in satisfaction of the obligation.
The petitioner should also explain why s/he believes the costs
are "reasonable." The factors relevant to the reasonableness of
costs include, but are not limited to, the number of bids the
petitioner received for a project, the basis for choosing a
contractor, the bidding procedures, any modifications to the
original contract, and any delay in petitioner's initiation,
facilitation, or completion of the response action. The type of
documents that could support petitioner's claims for costs
include bids, cost estimates, commercial rates for the services,
authorized work contracts, contractor rates, market prices,
progress reports, copies of itemized invoices, copies of canceled
checks, receipts, and other appropriate documents. EPA will use
this information when evaluating the reasonableness of costs (see
Section II.E).
D. Statutory Standards for Reimbursement
If the petition satisfies the four threshold requirements
discussed above, then EPA will evaluate the merits of the
petition. To evaluate the petition's merits, EPA will examine
whether the petition demonstrates either, or both, of the
following:
Petitioner is not liable for response costs under
CERCLA section 107(a) (see sub-section 106(b)(2)(C))
or;
Based on the administrative record, the selection of
the response action required by the order was arbitrary
and capricious or otherwise not in accordance with law.
(see sub-section I06(b)(2)(D)).
The burden of proof rests with the petitioner. Under sub-
section 106(b)(2)(C), the petitioner must prove by a
preponderance of the evidence that s/he is not liable. In
contrast, a claim based on sub-section 106(b)(2)(D) requires the
petitioner to demonstrate, on the administrative record, that
EPA's selection of the response action was arbitrary and
capricious or otherwise not in accordance with law. Sub-section
106(b)(2)(D) limits reimbursement to the costs incurred pursuant
to the portions of the order found to be arbitrary and capricious
or otherwise not in accordance with law. EPA will review this
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claim based solely on the information contained within the
administrative record for the selection of the response action.
E. Reasonable Costs Plus Interest
Upon determining that the petitioner may be entitled to
reimbursement, OWPE will evaluate the reasonableness of a
petitioner's response costs for the required action. The
reimbursement petition should describe the basis for the
petitioner's claim that the costs incurred are reasonable. The
petition should itemize all cost documents. The petition should
identify any monies the petitioner received from other parties
via any other means (e.g., settlements, contribution, insurance,
private party actions, and government contracts) for performing
the required action. Such monies do not represent costs incurred
by the petitioner, and are therefore not subject to
reimbursement. All cost information should be submitted with the
petition. EPA retains the right to pot consider information
submitted after the 60 day deadline.
In evaluating the petitioner's costs, OWPE will consider the
circumstances of the response action, evidence of the customary
practices existing at the time the monies were expended by the
petitioner (e.g., cost estimates furnished by qualified firms, --
results of competitive procurement for identical or similar
activities, and documentation of market prices for similar
activities), and any other relevant factors. OWPE may grant all,
part, or none of the costs sought. EPA will not reimburse any
costs that are not part of the reasonable costs of the response
action required by the order, such unallowable costs include, but
are not limited to, the additional cost for work performed beyond
the scope of the administrative order and legal fees related to
the reimbursement petition process.
Finally, CERCLA sub-section 106(b)(2)(A) indicates that
interest on the amount of money expended in implementing a
required action accrues from the date of expenditure. The
interest rate used in this calculation will be the same rate as
specified for interest on investments of the Hazardous Substance
Superfund established under subchapter A of chapter 98 of Title
26 of the United States Code.
III. Agency Procedures for Processing Section 106(b) Petitions
Generally, EPA will evaluate a petition using the process
outlined below. However, EPA may use its discretion to stay the
process before a final decision is issued. For example, EPA may
stay the evaluation process if a related settlement or judicial
action is proceeding (e.g., a CERCLA section 107 action) or for
4See Section II.C at page 2.
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other good cause. A petitioner may elect to withdraw a petition,
or withdraw from a multi-party petition (e.g.. if a petitioner
enters a settlement with EPA and thus waives his or her rights
under section 106(b)). Once a petitioner withdraws a petition,
EPA will allow the petitioner to refile the petition only where
the 60 day statutory period for filing a petition has not yet
expired.
After the response action required in a section 106 order is
completed, the petitioner has 60 days to file a reimbursement
petition with OWPE. The petitioner should send, prior to or
concurrent with the filing of the petition, a letter (return
receipt requested) to the appropriate EPA Regional Program
Office, and to OWPE, certifying completion of the required
action. The letter should be substantiated with support
documentation (e.g., copies of invoices, work orders, disposal
records, receipts or manifests, and other relevant documents).
Parties should be aware that there are significant sanctions for
submitting false information.
Upon receipt of the petitioner's letter certifying
completion of the required action, the regional office should
reply in writing to the petitioner within 60 days either
confirming or.denying that the petitioner completed the required
action. The regional office should send its response to the
petitioner by certified mail, return receipt requested, and
should send a copy to OWPE. If the regional office finds that
the action has not been completed, the Region should state the
basis for the finding and the actions needed to complete the
required action. If the Region's response to the petitioner is
not postmarked or franked by the 60th day from receipt of the
certification and no extension of time has been granted by OWPE
(see below), then OWPE may deem the required action complete for
purposes of section 106(b)(2) only. In some circumstances, a
regional office may determine that the petitioner completed the
required action after the date of petitioner's letter certifying
completion. In this situation, a petitioner may file the
petition within 60 days after the date of actual completion, as
reflected in the Region's letter confirming completion. The
petitioner's statutory obligation to file the petition within 60
days after completing the required action is not affected by a
regional office's response to the petitioner's letter certifying
completion.
On a case-by-case basis, a regional office may, for good
cause, submit a written request to OWPE asking for a limited
extension to evaluate whether the required action has been
completed. OWPE anticipates that a regional office will only
request the extension under extenuating circumstances or when a
dispute arises between the regional office and the petitioner as
to whether the work was completed.
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Upon receipt of a petition, OWPE will send a letter to the
petitioner and the appropriate regional office acknowledging
receipt of the petition. Generally, OWPE will not evaluate a
petition's merits until the work under the Order is completed as
indicated by the Region's letter confirming completion (see
above).
When the work is completed, OWPE will evaluate a petition
for completeness in order to determine if the petitioner has met
the threshold statutory filing requirements identified in Section
II of this guidance. The regional office may submit comments to
OWPE on any petition, and should do so within 60 days after EPA
receives the petition (assuming that the petitioner has completed
the required action). The regional office should send a copy of
the comments to OWPE and the petitioner.
If the petitioner cannot show that the threshold statutory
requirements are met, then EPA will deny the petition. If the
petition meets the threshold requirements, then OWPE will
evaluate the merits of the petition. OWPE may first perform a
summary review under the following scenarios:
There are no factual issues in dispute; or,
Assuming as true all facts most favorable to the
petitioner, OWPE would deny the petition; or
Assuming as true all facts least favorable to the
petitioner, OWPE would grant the petition.
In these situations, OWPE expects to issue a preliminary decision
without further investigation into the facts of the case. In
particular, OWPE will not offer an opportunity for an oral
hearing in such cases because further factual case development
would be of no benefit.
When a petitioner claims that he or she is not liable under
section 107(a) of CERCLA, in most cases, OWPE expects to evaluate
claims relating to liability based solely on the documents
submitted by the petitioner and the regional office. However,
there may be limited cases where the evaluation of liability
claims will justify additional procedures. EPA will initially
review the liability claims to determine whether to offer the
petitioner an opportunity for an oral, evidentiary hearing on the
liability issues.
An oral hearing would be conducted at EPA Headquarters or in
the appropriate regional office by an EPA Headquarters' hearing
officer. The hearing would include the opportunity for live
testimony on specified factual issues from one or more of the
parties' (the petitioner and the regional office) witnesses and
the opportunity for cross-examination. EPA will notify the
parties by letter (return receipt requested) if it decides to
offer the opportunity for an oral hearing. If EPA offers an oral
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hearing, it may require a response within a fixed time, such as
15 days from the issuance of the written offer. Failure to
respond to the offer in a timely manner will constitute a waiver
of the opportunity for a hearing. However, EPA may decide on its
own to hold an oral hearing. If an oral hearing is held, OWPE
(or the EPA hearing officer) will notify the petitioner and the
Region in writing of the issues and provide a hearing date.
CERCLA does not require that EPA provide oral hearings on
section 106(b) reimbursement petitions. However, oral hearings
may, in some cases, be an appropriate means of providing the
petitioner a full airing of liability issues. Oral hearings are
particularly appropriate where there are factual issues that
depend on the credibility of a witness providing testimony. In
such cases, it may be appropriate to allow for an oral hearing in
order to assess the witness's credibility and provide an
opportunity for the opposing party to cross-examine the witness.
In contrast, where factual disputes revolve around technical
issues rather than witness credibility there will usually be no
need to provide for an oral hearing. OWPE will decide these
issues on the basis of the written submissions. It could be,
however, that if the liability issues are highly complex or
technical, OWPE may decide that an oral hearing would clarify
matters.
In sum, petitioners should keep in mind the following points
regarding the availability of oral hearings on section 106(b)
petitions. It is within EPA's discretion whether to hold a
hearing. EPA expects to offer an oral hearing only with respect
to liability issues. EPA does not expect oral hearings to be
available on response selection issues or issues relating to the
reasonableness of the costs incurred by the petitioner. EPA
expects to offer an oral hearing only when liability claims
involve disputed factual issues. This decision will turn in
large part on whether witness credibility is at issue.
If the EPA hearing officer holds an oral hearing on
liability, the hearing officer will issue a recommended decision
to OWPE on those specified issues. OWPE will evaluate the
hearing officer's recommended decision and any remaining claims
within a petition. The remaining claims could consist of any
liability claims not reviewed by the hearing officer or claims
based'on EPA's selection of the response action. If, after
reviewing all claims, OWPE concludes that the petitioner should
not be reimbursed, OWPE will not evaluate the reasonableness of
the incurred costs.
Once the evaluation process is completed, OWPE will issue a
preliminary decision. If EPA held an oral hearing, OWPE will
include a copy of the hearing officer's recommended decision with
the preliminary decision document. The preliminary decision will
also include, where applicable, an index of the following
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documents: liability documents, the administrative record for
the ordered response action, regional comments, and any other
information and documents generated (e.g., conversation sheets -
see Appendix C) or timely received upon request by OWPE, or the
hearing officer, during the review process. OWPE will make the
documents available to the petitioner at the regional office and
EPA Headquarters unless exempt from disclosure (see Section IV).
If regional documents are too voluminous for shipment to EPA
Headquarters, the regional office and OWPE staff should make the
appropriate arrangements for OWPE staff and the petitioner to
review the documents.
After a preliminary decision is issued, the petitioner and
the regional office will have 30 days from the date of receipt
(return receipt requested) of the preliminary decision to submit
comments on the Agency's preliminary decision document. The
petitioner and the regional office will be afforded an
opportunity to comment on the preliminary decision and all
supporting information identified in the index/indices unless
exempt from disclosure.
The petition, the Region's response to the petition, an oral
hearing (if one is held), and the 30-day comment period are the
established means for the petitioner and the regional office to
present their views on the petition. OWPE may decline to
consider information submitted by either party outside of these
processes.
EPA will review and consider timely comments before issuing
a final decision. However, EPA may decline to consider new
claims or new issues raised during the comment period. Comments
should relate only to the following: the claims and issues raised
in the petition, the regional response to the petition, and the
discussion in the preliminary decision.
EPA's final decision will either grant or deny the petition
in whole or in part. The Director of OWPE will issue EPA's final
decision. A decision to reimburse the petitioner, in whole or in
part, requires concurrence from the Director of the Office of
Emergency and Remedial Response (OERR). EPA will send the
final decision to the petitioner, or petitioner's counsel, by
certified mail, return receipt requested and to the regional.
office by regular mail. The public record supporting EPA's final
decision will be made available at Headquarters or the regional
office as appropriate (see discussion above).
Judicial review of the final decision is governed by
sub-section 106(b)(2)(B).
See footnote 1.
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All confirmation letters, regional comments, summary denial
letters, information request letters, letters offering hearings,
and preliminary and final decisions will be sent by certified
mail to the petitioner, return-receipt requested. All other
correspondence to the petitioner will be sent by regular mail.
All regional correspondence with Headquarters may be sent by
regular mail.
IV. Access to Information and Confidentiality
Generally, the Petitioner will have access to all documents
in the administrative record supporting the selection of the
response action, as well as documents in the record compiled by
EPA concerning its decision on liability issues and any other
documents concerning EPA's decision on the petition. The
administrative record is kept at the appropriate regional office
or EPA Headquarters and is available to all interested parties.
However, certain documents may not be maintained in the publicly
available portion of the administrative record because they may
be subject to one of the nine statutory exemptions under the
Freedom of Information Act (FOIA) (5 U.S.C. Section 552 et seq.).
The FOIA provides for.disclosure of Agency records to any
requestor except where the record falls under an exemption. A
petitioner is subject to the provisions of FOIA when seeking
information which may fall within the nine statutory exemptions.
Whether or not a petitioner cites FOIA when requesting
information not currently public and available, EPA will treat
the request as a FOIA request.
OWPE encourages the Regions to make every effort to release
relevant investigatory records compiled for law enforcement
purposes, including liability evidence, if no. important purpose
is served by withholding the record. A more complete disclosure
may provide the petitioner with the opportunity to learn why the
Agency found it liable for the response action. Under certain
circumstances, a Region may choose not to disclose information
because it may, for example, "interfere with enforcement
proceedings" or affect judicial proceedings. An example of a
circumstance preventing the disclosure may be a RD/RA negotiation
or a cost recovery action which coincides with the petition
evaluation process.
In some cases a Region may determine that a document is
subject to another FOIA exemption, such as exemption five, the
exemption pertaining to inter-agency or intra-agency memoranda or
letters which would not be available by law to a party other than
an agency in litigation with the agency. This exemption includes
documents subject to the internal-deliberative process privilege
and the attorney work-product privilege. Again, OWPE strongly
encourages the Regions to make every effort to release documents
which fall within this exemption if no important purpose is
served by withholding the records.
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Exemption four pertains to trade secrets, and confidential
commercial, or financial information (confidential business
information (CBI)). This exemption may apply to information EPA
obtained either from the petitioner or from other entities. EPA
has developed regulations on CBI (40 C.F.R. Part 2, Subpart B).
The petitioner may submit information to the Agency and
assert a business confidentiality claim covering part or all of
the submitted information. Information covered by such a claim
will be released only to the extent, and by means of the
procedures, set forth in 40 C.F.R. Part 2, Subpart B. If no such
claim accompanies the information when it is received by EPA, EPA
may release information without further notice. However, a
request for documents claimed exempt will trigger a review and
request to the submitter of the documents for substantiation of
its claim from an EPA legal office. The Agency legal office may
determine that the information claimed exempt is not entitled to
confidential treatment. If such a determination is made, EPA
may, after appropriate notice, release the information unless an
action is instituted in a federal court to enjoin release of the
information.
Generally, CBI can only be disclosed in certain narrowly
defined circumstances. 40 C.F.R. Section 2.209 outlines the
parties that may receive CBI and the procedures that EPA follows
when it disseminates CBI. EPA may disclose CBI in limited
circumstances to Congress, other federal agencies, by order of a
federal court, within EPA, with the consent of the business that
submitted the information to EPA and to certain authorized
representatives (such as contractors). EPA may also release CBI
because of the relevance of the CBI to a proceeding. This
determination by the presiding officer This release of CBI can
only be made in accordance with EPA's CBI regulations, 40 C.F.R.
Part 2.
Despite these limitations on disclosure, EPA anticipates
that most of the information relevant to a petition will be
generally publicly available. EPA will make every effort to
evaluate, carefully, each request for disclosure of information
and weigh any important reasons for withholding requested
information.
Finally, OWPE plans to include in its preliminary decisions
on petitions an index of the related administrative record for
the petition. The index would reference, among other documents,
confidential information and privileged documents. The
petitioner may review the nonexempt portions of the
administrative record at the regional office, and at EPA
Headquarters unless it is _^op voluminous.,for shipment, to EPA
Headquarters (see above).
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V. Regional Involvement in the Petition Review Process
A regional office has the following six responsibilities in
the petition process:
A. Confirmation Process - The regional office has 60 days
from receipt of the petitioner's certification letter
(unless extended) to confirm or deny in writing that
the required action has been completed (see procedures
above).
B. (Optional) Comment on Petition - The regional office
may comment on a petition and should do so within 60
days after EPA receives the petition (assuming that the
petitioner has completed the required action). The
Region should send a copy of these comments to OWPE and
the petitioner.
C. Documents - The regional offices should anticipate that
persons who intend to file section 106(b) petitions
will ask to review the administrative record for
selection of the response action well in advance of the
deadline for filing their petitions. The Regions
should be prepared to handle such requests.
Once a petition is filed, the regional office
should provide OWPE with the administrative
record for the selection of the response action and
(or when requested) information supporting the
Region's position that the petitioner is liable. The
Region should also include an index/indices of these
documents. In the event that these documents are too
voluminous for shipment, the regional office and OWPE
should make the appropriate arrangements for OWPE to
review the necessary documents.
After OWPE issues a preliminary decision, the
regional office should be prepared to provide the
petitioner with the facilities needed to review the
non-exempt indexed documents identified in the
preliminary decision as well as the final decision.
D. Additional Information - In evaluating a petition, OWPE
or a hearing officer may request or receive additional
6See 40 C.F.R. §300.820 for the timing requirements
surrounding preparation of the administrative record file.
7This submission will not be needed if the threshold filing
requirements are not met or if petitioner does not assert a claim
under sub-section 106(b)(2)(D).
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information from a regional office. The Region should
be prepared to send this information and a related
index to EPA Headguarters, with a copy to petitioner.
E. Oral Hearing - If EPA offers the petitioner an oral
hearing, OWPE or the EPA hearing officer will notify
the regional office in writing of a hearing date. The
regional office may then participate in the hearing,
which could include oral testimony on factual issues
from one or more of the parties' (the petitioner and
the Region) witnesses and the opportunity for cross-
examination.
F. Comments on the Preliminary Decision - OWPE will
provide the regional office and the petitioner 30 days
to submit comments to OWPE on the preliminary decision.
VI. Further Information
For further information on this guidance, contact
Fred Zimmerman, Office of Waste Programs Enforcement, CERCLA
Enforcement Division (OS-510), U.S. Environmental Protection
Agency, 401 M Street, SW, Washington, DC 20460, (202) 260-2034.
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APPENDIX A
CERCLA Section 106(b)(2) provides:
(A) Any person who receives and complies with the terms of
any order issued under subsection (a) of this section may, within
60 days after completion of the required action, petition the
President for reimbursement from the Fund for the reasonable
costs of such action, plus interest. Any interest payable under
this paragraph shall accrue on the amounts expended from the date
of expenditure at the same rate as specified for interest on
investments of the Hazardous Substance Superfund established
under subchapter A of chapter 98 of Title 26.
(B) If the President refuses to grant all or part of a
petition made under this paragraph, the petitioner may within 30
days of receipt of such refusal file an action against the
President in the appropriate United States district court seeking
reimbursement from the Fund.
(C) Except as provided in subparagraph (D), to obtain
reimbursement, the petitioner shall establish by a preponderance
of the evidence that it is not liable for response costs under
section 107(a) of this title and that costs for which it seeks
reimbursement are reasonable in light of the action required by
the relevant order.
(D) A petitioner who is liable for response costs under
section 107(a) of this title may also recover its reasonable
costs of response to the extent that it can demonstrate, on the
administrative record, that the President's decision in selecting
the response action ordered was arbitrary and capricious or was
otherwise not in accordance with law. Reimbursement awarded
under this subparagraph shall include all reasonable response
costs incurred by the petitioner pursuant to the portions of the
order found to be arbitrary and capricious or otherwise not in
accordance with law.
(E) Reimbursement awarded by a court under subparagraph (C)
or (D) may include appropriate costs, fees, and other expenses in
accordance with subsections (a) and (d) of section 2412 of Title
28.
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Appendix B
Summary of Information That Should Be Included With the
Reimbursement Petition
A. All Information Establishing the Threshold Statutory and
Regulatory Matters (see section II). This information should
include (but is not limited to) the following:
?
1. A copy of the underlying Administrative Order.
2. A copy of the letter from the petitioner certifying
completion and the Confirmation Letter from the Region if
available.
3. All cost documentation reflecting the reasonable costs
incurred in performing the response action.
B. All Information Establishing That The Petitioner Meets Either
or Both of the Statutory Standards for Reimbursement
1. Petitioner is not liable
2. EPA's decision in selecting the ordered response action
was arbitrary and capricious or otherwise not in
accordance with law.
C. Any and all additional documents and written explanations
needed to support the petitioner's claims.
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Appendix C
Conversation Sheet
Date: Time: Location:
Purpose of Conversation:
s>
Name of Participants in Conversation;
Headquarters:
Region:
Petitioner(s) or
Representative:
Were all parties asked to participate in the conversation?
Yes or No. Explain.
Summary of Conversation;
Future Action Based on the Conversation;
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Flowchart
Complete
The Required
Response
Actions
w/n 60 Days , r
-, rw/n 60 Days
File Petition
w/ OWPE &
Region
file
Certification
w/ Region
Issue Receipt
Letter to
Petitioner
(Region)
oes Region
Respond w/n
60 Days?
OWPE
Evaluates
Petition
Is
Confirmation
Issued?
Threshold
Requirements
Met?
eny Pet.
w/
Prejudice
Summary
Decision?
Oral
Hearing
Offered?
Hold Hearing
& Issue
ecornmended
decision
Petition
Evaluation
NO
NO - Deny Petition w/o Prejudice
Issue
Preliminary
Decision
30 Day Comment
Period for
Petitioner and
the Region
Issue Final
Decision
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