oEPA
              United States
              Environmental Protection
              Agency
           Office of
           Solid Waste and
           Emergency Response
DIRECTIVE NUMBER:
9834.4
               TITLE:   Policy on Enforcing Information Requests
                     In Hazardous Waste Cases
               APPROVAL DATE:  September 10
               EFFECTIVE DATE:  September 10
               ORIGINATING OFFICE: OECM
               QtFINAL
               D DRAFT
                LEVEL OF DRAFT
                  DA  Signed by AA or DAA
                  D B  Signed by Office Director
                  d C  Review & Comment
               REFERENCE (other documents):
                     1984
                     1984
  OSWER      OSWER      OSWER
VE   DIRECTIVE   DIRECTIVE   Dl

-------
            United States
            Environmental Protection
            Agency
             Office of
             Solid Waste and
             Emergency Response
 xvEPA
DIRECTIVE NUMBER:

TITLE:
9834.4
                   Policy on Enforcing Information Requests
                   In Hazardous Waste Cases
            APPROVAL DATE:  September 10, 1984

            EFFECTIVE DATE:  September 10, 1984

            ORIGINATING OFFICE: OECM
                   ^

            QcFINAL

            D DRAFT

             LEVEL OF DRAFT

               DA  Signed by AA or DAA
               D B  Signed by Office Director
               D C  Review & Comment

            REFERENCE (other documents):
S WER      OS WER      OS WER
  DIRECTIVE    DIRECTIVE    Dl

-------
1. United States Envirc:-- .- ' :c:=r - - ." - ?-?"
1 ji* Wif .- - ^  ... ' '
VXtPA OSWER Directive Initiation Reauest
1 2. Originator Information
^Wne of Contact Person Mail Code Office
Tom Fiore LE134S OECM
3. Title
Policy on Enforcing Information Requests in Hazardous
1 . Directive Number
9834.4

Telep^N^
Waste Cases
4. Summary of Directive (Include brief statement of purpose}
Assist the Regions in enforcing information request letters issued
pursuant to Seciton 104 of CERCLA and Seciton 3007 of RCRA. -The policy
is intended to encourage agressive enforcement against parties that do
not comply with such letters.
Statutory Authority, Enforcement Response, CERCLA Section 104, RCRA 3007
6a. Does this Directive Supersede Previous Direciive(s)? |_J Yes |XJ No What directive (number, title)
b. Does It Supplement Previous Directivefs)? Q Yes (^] No What Directive (number, title)
7., Draft Level
U A  Signed by AA/DAA 0 B  Signed by Office Director D C  For Review & Comment D In Development
This Request Meets OSWER Directives System Format
8. Signature of Lead Office Directives Coordinator
^^^^
-------
                                            9834,4
         Attachment IX
                         \
 Policy  on Enforcing Information
Requests in Hazardous Waste  Cases

            9/10/84

-------
t

s
\
* UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
/                WASHINoTG.J. D.C. 20460
  '-. po-.^
                                                          9834-4
                            SEP 1 0 1964
                                                          Oc: ~i -:'
 MEMORANDUM

 SUBJECT:
 FROM:
 TO:
     Policy  on  Enforcing  Information  Requests  in Hazardous
     Waste Cases
(J, l^vA^G O.
     Courtney  M.  Price
     Assistant Administrator  for  Enforcement
       and  Compliance Monitoring

     Regional  Administrators,  I-X
     Regional  Counsels,  I-X
     Lee  M.  Thomas,  Assistant  Administrator for
       Solid Waste  and  Emergency  Response
      The attached policy has been developed to assist the
 Regions in enforcing information request letters issued pursuant
 to Section 104 of the Comprehensive Environmental Response,
 Compensation, and Liability Act (CERCLA) and Section 3007 of
 'the Resource Conservation and 'Recovery Act (RCRA).  The policy
 is intended to encourage agressive enforcement against parties
 that do not comply with such letters.

      The policy delineates statutory authority to obtain
 information, briefly discusses other sources of information and
 sets forth options available to the 'Agency to enforce requests
 for information in civil cases dealing with hazardous waste and
 hazardous substances.

      If you or your staff have any further questions regarding
 enforcement of CERCLA and RCRA information requests, please
 contact Fred Stiehl (FTS) 382-3050 or Jerry Schwartz at (FTS)
 382-3104.
 Attachment

-------
                                                              9834t4
              POLICY ON ENFORCING INFORMATION REQUESTS
                    IN HAZARDOUS 'WASTE CASES
 INTRODUCTION
     Section 104 of the Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA) and section 3007 of the

Resource Conservation and Recovery Act (RCRA) provide EPA with

considerable authority to obtain information from parties involved

with hazardous substances or hazardous wastes (collectively

"hazardous materials" )._]_/  Information request letters issued

pursuant to these sections have proven quite useful, particularly

because of the high rate of compliance associated with these

letters.  Occasionally, however, letter recipients refuse to

respond to requests, or provide an inadequate response.  This

policy document delineates statutory authority to obtain'informa-

tion and sets forth options available to the Agency to enforce

requests for information in civil cases dealing with hazardous

materials.^/

     This policy has been developed along with .the guidance

document on issuing notice/information request letters ("Notice

Letter Guidance"), which will be issued shortly.
]_/   These sections also provide authority to enter facilities to
'  .   perform inspections, conduct studies, and obtain samples.
Access authority is discussed in a policy document which will be
issued separately.

2/   With regard to obtaining information in the context of
     parallel civil and criminal cases, consult Courtney M. Price's
memorandum "Policy and Procedures on Parallel Proceedings at the
Environmental Protection Agency," dated January 24, 1984.

-------
                              - 2

                                                           9834,4
STATUTORY AUTHORITY

     Section 104(e)(l) of CERCLA provides:

           For purposes of assisting in determining the
           need for response to a release under this
           title or enforcing the provisions of this
           title, any person who stores, treats,  or
           disposes of, or, where necessary to ascertain
           facts not available at the facility where
           such hazardous substances are located,  who
           generates, transports, or otherwise handles
           or has handled, hazardous substances shall
           upon request ...  furnish information
           relating to such substances...."
           (Emphasis supplied)

     Section 3007(a) of RCRA provides:   3/

            For purposes of ... enforcing the provisions
            of this title any person who generates, stores
            treats, transports, disposes of, or has handled
            hazardous wastes shall,  upon request ... furnish
            information relating to such wastes.;.."
            (Emphasis supplied)

     In most information request letters, both sections should

be cited as authority for the request.   Note that  it is appropriate

to cite RCRA 3007(a) as authority for  requests relating to those

wastes the regulation of which has been partially  suspended by

Congress pursuant to RCRA S3001(b)(3)(A) (e.g., "mining waste").'

This suspension does not limit the wastes which may be considered

"hazardous wastes" for purposes of several sections of the statute,

including section 3007.  45 Fed. Reg. 33090, (May  19, 1980) and

40 CFR 261.l(b).  Additionally, if the  "mining waste" or other

waste suspended under RCRA falls within the definition of
3/   The Agency has also issued RCRA 3013 Orders which contain,
     inter alia, requests for information.

-------
                                3 -
9834-4
hazardous substance under categories A,B,D,E, or F of CERCLA


101(14), the waste is a hazardous substance for CERCLA purposes

                          ^

and is properly subject to a request under CERCLA 104.  See


U.S. v. Metate Asbestos Corp.,  et al., 	 F. Supp. 	,  (Az.,  1984)


(Globe case) holding that asbestos tailings, which are mining


wastes, are hazardous substances pursuant to CERCLA 101(14).


INADEQUATE OR NON-RESPONSE


     A diligent, good faith effort by the information request


letter recipient to directly respond to the Agency's questions


and to provide information is adequate.  The determination of


whether a diligent, good faith effort has been made is necessarily


a case by case decision.  Most information requests require the


recipient to indicate the types of files searched in response  to


the request.  This information should help the Case Development


Team (CDT) determine whether the recipient's file searching


efforts were diligent and whether the recipient actually has


submitted all available information.


     In some cases, letter recipients may not have retained


records pertaining to the time period in which the Agency is
4

interested.   This may frequently be the case in multi-party


cases containing many "small" generators who dealt with a site


that was in operation many years ago.  In these cases, unless


the Agency has evidence to the contrary, the CDT generally will


accept the recipient's assertion that its records do not  go back

-------
                               ~4~                          9834,4

 that far.   The  CDT can  help  ensure  the  veracity of a recipient's

 claim that  it does not  have  pertinent records by  insisting on a
                          ^
 signed affidavit  to that  effect  from a  duly  authorized company

 official.

      Of course', the easiest  determinations regarding adequacy of

 response are those where  the company simply  refuses to comply.

 This includes cases where a  recipient responds by stating it

 will not answer the questions, or simply does not respond by the

 deadline included  in the  letter. ^J

      In one case,  a letter recipient asserted that certain -

 information requested by  the Agency was properly withheld because

 it was  "covered by the  attorney-client  privilege and the work

 product rule."  In that case,  the Agency issued a RCRA 3008

 administrative order (AO) to enforce compliance with' the informa-

 tion  request.  The Administrative Law Judge  (ALJ) rejected the

 company's claim and ordered  it to comply with the AO.  The ALJ

 looked  to the language -and purpose of the statute and.the relevance

 of the  information requested in  rejecting the privilege claims
                                                               
 of the  company. /   While there  have been several cases supporting
4
 the Agency's information gathering authority under other statutes,
4/   Information request letters are sent return receipt requested.
     The CDT should ensure the party actually received the letter
before taking further action.

/   See "Order Denying Motion and Requiring Compliance" in the
     Matter of Hughes Aircraft Company case. (Attachment A)
Subsequent to this Order, the company submitted the requested
information.

-------
.  .                                                           9834.4
                                -5-
 this is the only case addressing a privilege claim as  a  defense
 to an information request -under RCRA or CERCLA.
 ENFORCEMENT RESPONSE
      A.  First Step:  Reminder Letter
      Once the CDT has made a decision that a recipient has  not
 responded or has responded inadequately to a request,  a  "reminder"
 letter should be issued.  If a letter recipient,  however,  clearly
 indicates its refusal to respond to a request,  a  reminder  letter
 would be inappropriate.   The letter should recite pertinent past
 details (such as when the first letter was sent and a  general
 description of the information sought), and indicate that  the
 response is inadequate or that no response was  received.   It
 should also point out that the Agency is considering further
 enforcement action if it does not receive the requested  information
 by a date within the next several weeks.  See Attachment  B  ror a
 sample reminder letter.
      Compliance with information request letters  can also  be
' increased by informing the responsible party coordinating  committee
'(in multi-party cases) that the government will not settle  nor
 exchange inforraation"with any party that has not  complied with a
 request.  This has proven effective in several multi-party  cases.

-------
                                                         9834.4
                              - 6 -


     Any telephone or other contacts with the recipient regarding

the request should be well documented,  including telephone calls

requesting clarification to questions or agreements  to extend

the deadline for response.  This information will be critical

should the Agency decide to take further enforcement action.

     B.  Second Step:  Evaluate Candidates for Further Action

          As a general rule,  the CDT should first consider

for further enforcement action those recipients that clearly

have not complied with the information  request.  These are-

recipients whom the CDT is sure received the information request

and, if applicable, reminder  letters, but have not responded at

all or have responded by refusing to comply with the request.

The CDT should next consider  for further enforcement action

those recipients that responded with a  less than diligent effort

at searching their files,  or  whose response was otherwise inadequate,

Finally,  the CDT should consider those  recipients that responded

late to the request.
                                                              
C.  Third Step:  Evaluate  Enforcement Options

     The Agency's authority for enforcing an information request

is contained in 3008(a) of RCRA, and 104(e) and 113 of CERCLA.

     Section 3008 provides in pertinent part:

          "... whenever on the basis of any information the
           Administrator determines that any person  is in
           violation of any requirement of this subtitle,  the
           Administrator may  issue an order requiring compliance
           immediately or  within a specified time period or the
           Administrator may  commence a civil action..."

-------
                               -  7  -                       9834-4


      Section  3008  civil  actions  and AOs can seek both injunctive

 relief and  penalties.

      Section  113 of  CERCLA  grants  federal district courts

 jurisdiction  to hear an  EPA motion for injunctive relief to

 compel compliance  with an information request.  Unlike 3008 of

 RCRA,  however, 104(e)(l) of  CERCLA does not provide for penalties.

 Section 113(b) provides  in  pertinent part:

          "...the  United States  district courts shall have
            exclusive original  jurisdiction over all
            controversies arising under this Act...."

       Thus, the options  available  to the Agency to pursue an

 inadequate  response  are:  (1)  issue a RCRA S3008 AO seeking

 injunctive  relief  and penalties, (2) file a civil action pursuant

 to  RCRA 3008 and  CERCLA'113  seeking injunctive relief-and

 penalties,  where appropriate  and (3) issue a RCRA 3008 AO seeking

 penalties only.  In  determining  which option to choose, the CDT

 should examine the same  considerations as in other potential

 enforcement cases, such  as  the likelihood that the particular

 recipient will comply with  an  AO and the immediacy of the need
i
 for the information.  In those cases where the information is

 needed immediately or likelihood of compliance is small,  a civil

 action may  be preferable.   Each  option is discussed in more

 detail below.

      1. RCRA 3008  AOs  Seeking  Injunctive Relief and Penalties:

     AOs issued to compel compliance with an information request

 are similar to other RCRA 3008  AOs.  They should contain findings

 of  fact and determinations, should assess penalties in accordance

-------
                              - 8 -                        9834.4

with the Agency's RCRA Penalty Policy / and should order the
respondent to comply with the original information request.
Care should be taken to ensure that the findings of fact demon-.
strate the relevance of the information requested, that the
information is necessary to respond to a releas-e or to enforce
the appropriate provisions of the Acts, and that the recipient
deals with hazardous waste.  Note that under RCRA 3008(a) each
day of noncompliance with an AO is a separate violation for
purposes of assessing penalties.
     2.  Filing RCRA 3008 and CERCLA 113 Civil Actions: ]_/
     A referral to the Department of'Justice (DOJ) for inadequate
or non-response to an information request should include all
relevant letters,, documentation of telephone contacts, information
sufficient to demonstrate that the recipient deals with hazardous
materials, and that the information request is for one or both
of the specified purposes of the statutes.  Again, these referrals
are similar to other referrals and all pertinent guidance should
be followed.  As indicated in previous guidance, a referral
pursuant to 3008 can seek enforcement of an AO, penalties or
remedies for the underlying 3008 violation.
67   See the Final RCRA Civil Penalty Policy, May 8,  1984,
     page 31, number (4) for an example of a penalty calculation
for noncompliance with a RCRA 3007 information request.
l_l   The United States has filed a complaint for noncompliance
     with a RCRA 30077 CERCLA 104 information request in
U.S. v. George Liviola, Jr., et al., No. C84-1879Y,  Northern
District of Ohio.Copies are available from OECM-Waste.

-------
                                9 -
9834*4
     3.  Issuing AOs Assessing Penalties Onlv:



     RCRA 3008 AOs issued, to letter recipients who eventually



submit the requested information,  but submit it late or after



the Agency had issued reminder letters only assess  a penalty,



since injunctive relief (for submission of the  information)  is



no longer necessary.  Regional enforcement personnel are encouraged



to use penalty-only AOs for late submissions if adequate resources



are available.  These AOs will demonstrate to the regulated



community that the Agency is serious about utilizing its informa-



tion gathering authority and taking further action  to enforce



the use of that authority,  where appropriate.



CONCLUSION



     The information gathering authority available  to the Agency



will continue to be effective only if the Agency takes  a strong



stand in enforcing these requests.  Whenever possible,  the CDTs



should take whatever action is necessary to ensure  compliance



with these letters.





Attachments

-------
                      ENVIRONMENTAL PROTECTION AGENCY           9834*4
IN THE MATTER OF:                     )    Deck:: Me.  IX-81-RCRA-122
                                     )    	
Hughes Aircraft C"?5'y,             )    Marvin E.  Jones
                                     )    Administrative Law Juoge
             R.es?o-.Jent.             )    Environmental  Prctectic:-. Ager.r/
                                     )    32i East llth  Street
                                     )    Kansas City, Missouri  641CG

              ORDER DENYING MOTION AND REQUIRING COMPLIANCE

     By Motion dated November 3, 1931, Respondent Hughes Aircraft Conpar.y

moves to dismiss the Complaint filed herein on September 30, 1981.  Said

motion is based on its contentions set forth in its  "Memorandum in Support

Hughes' Motion --", filed therewith, which recounts  that on July 17, 1981,

Complainant (U.S.  Environmental  Protection Agency, Region 9) issued a letter

requesting that Respondent provide certain information relating  to tests

conducted by it on soil, water supply and well-water samples taken on grounds

of Air Force Plant No. 44 or in the vicinity of Tucson International Airport,

along with information relating to samples taken in March and May 1981,

pursuant to Section 3307U} of the Solid Waste Disposal  Act as amended by the

Resource Conservation snd Recovery Act of 1976 (hereinafter "'RCRA"), 42 U.S.C.

Section r27(aj, including "Sclic Waste Disposal Act Amendments :f IrSC"

P.L. 95-4 = 2, October 2:, IScD)-   Said Section 30C7 of P.CRA, 42 U.S.:. Secvisr.

6527, provides in pertinent pert as follows:

          "For purposes of ... enforcing the provisions  of this title,
     any person wh; Generates, stores, treats, transports, disposes
     of, or otnerwise handles or nas hanclec hazardous wastes sha', 1,
     upon recues: of any officer, employee or representative or  tne
     Environmental Protection Agency, duly designated by the
     Administrator ... furnish information relating ts such wastes
     and perr.it such person a; au ressonac.e times to nave access
     to, and to copy all reccrds relative _tp_ su:n wastes."
     (emphasis added)

     Said 3007 letter states, in pertinent part, as follows:

          "Or, or about March 5, 1981 and acain on or ascut May 28,
     1981 representatives of Ecology anc Environment, Inc. took
     well sm?les in the vicinity of the airpcrt for EPA.  Seme
     of these wells were located on your property and the samoles
     taker, from these wells were split for a duplicate analysis
     by your c*n or a contracte: laboratory.

          EPA'heresy requests the results of the above nentione:
     samples obtained by your- laboratory.  E?A else rsc/jescs tne
     results of any jarpling (sci*. water S'j;:-ly and v/sll water)
     for TCE, DCE, or Cr+6 tnat you cenductec on your property or
     in the vicinity of the Tucson International Airport."

-------
   *hes responded -n Aur-st 13  1SS1, and on Aurust 3', IPS;, to trie first ar:

second parts, respectively, of said 3CC7 Letter, as follows:        9834* 4

     August 11. 198:

        '  "1.  HugJ.es did not obtain a split sam:le fro- the sar.zles
               taken by representatives of Ecology and Environr-.e-t, inc.,
              ..on March 5, 1961.   This fact is documented on oacs three
               of the Sampling Documentation attacneo to the FIR.

           2.  The split samples  obtained fror. the representatives of  '
               Ecology and Environment, Inc., on May 28, 1981, were
               obtained and analyzed under the direction and
               supervision of Hughes counsel.  These tests results
               are covered by the attorney-client privilege and tne
               work product rule, and are not properly subject tc
               disclosure under your Section 3007 request.  Also,
               please note that Section 3007 expressly requires the
               Environmental Protection Agency to furnish promptly
               to the party being investigated the results of any
               analysis made of such samples.  Section 3007, however,
               does not have a similar requirement with respect
               to the party under investigation.  We interpret this
               to mean that Section 3007 doss not require the party
               under investigation to disclose the results of its
               analysis and that the Environmental Protection
               Agency is not authorized by Section 3007 to seek
               disclosure of such results."

    August 31. 1SS:

         "1.    Hughes has not conducted tests for DCS on its property
               or in the vicinity of the Tucson International Airport.

          2.    Except fcr the data obtained from an outside.-laboratory
               (see Attachment A.J, and fcr cata .cover:d fcy tne e'tt:r-,e..p- 
               client privilege and trie work prscuct rule, and r.c:
               properly subject to disciosure under your Section 3CZ7
               request, Hughes has net concjcted tests for TCE or, its
               property or in the vicinity of the Tucson International
               Airport.

          3.    The attached data  relating to Cr+6 (See attachments S-C,
               are the only data  which Hughes has been able to locate
               relating to tests  conducted by Hughes on its property
               or in the vicinity of the Tucson International Airport.'

Hughes was served, on October 7,  1981, with the subject Complaint and

Compliance Order which alleges that Hughes' reply contained in its letters cf

Augusjtjl and 31 "did not provide the Information requested in the Section 2:::

letter" and for said cause concludes that Hughes thereby is "in violaticn cf

Section 3007 of RCW."  The Compliance Order therein issued tc require

Respondent to provide Complainant all of the information reouestei ir. it:

Section 30C7  letter.  Hjghes' motion is bottles on its factually ur.j:::rti:

contention stated in its said letters dated August 11 and 31 and in- its

Motion's supporting memorandum, that the test results sought are "covered :y

the attorney-client privilege and the work product rule" and thus are re:

-------
properly subject  tc  :isclo:jre  unoer  Complainant's  3C07  request.   In  its
                                                                      Q p "2 A    A
August  31  lettt    '  state?  tr t Hue es  cc. duett   no tests  for  di'.nlor:rtv -:-.e
(DCE) on subject  sites;  and apparently  contends  that  any tests mace fcr
trichloroet.hylene (TCE)  and dat; relating  to  TCE,  on  subject s.ites, are
privileged and not properly subject to  disclosure.   Tne  August 31  letter
further indicates that  data relating  to Hexavalent  Chromium  (Cr*6) as  fun;i.--.*:
therewith  and as  the only data  which  Hughes has  been  aole  to locate  (relating
to  tests conducted by Hughes) on subject sites.
       In the alternative, Respondent  characterizes  the   allegations  in  subject
complaint  as "vague, ambiguous  and overly broad"  to the  extent that Responcert
cannot  reasonably frame  its answer thereto and  requests  that Complainant  be
directed to set  forth a  more definite statement  of its  claim.
       In its letter of  August 31, 1981, Respondent states:  "Hughes  considers
                                                          r
all  of  the information  contained in both letters (August 10  and August  31,  1951;
to  be  confidential1' and asserts its claim of  "confidentiality."
       1 Cind that Respondent's  claim  that the information, sought  by  Complainant
in  its  30C7 letter, is  privileged and not properly subject to  disclosure  is
without merit.  'Respondent is  in violation and  continues in  violation of  the
Act by  its refusal to furnish infcmation so  requested.
      Rules of disclosure were not known at common lav/.   The  scope  of  privilege,
if  properly claimed, must be determined primarily by words and intent of
pertinent  statutes.   (State ex  rel Von Heffner,  Press v.  Se.itz. 607 S.W.2d 219
(MO); 27CJS Section 69,  p. 203)}  Privilege when  properly, claimec is  1 is:tec t:  *-:r,;
product of the  attorney with respect  to the pending action and goes  nc  furtr.e:*
 (27 CJS, Discovery, Note 3.6,  p. 227),  and whether any  information is privilege:
in  any  Instance  is a question of fact and the burden is  on the party  clair.ir.g
 the privilege.
       Administrative agencies are not rigidly restricted by  jury trial  rules  c*
evidence (Buekwater v.  FTC, 235 (F2d) 344; Qpp  Cotton Mills  v. AD'-'R.
312 US  125, 155,  61 S.Ct. 524).  Davis, Adm.  Law Treatise, Section .!.  ?. Si-
states  that Federal  Rules of Civil Procedure  Governing  Discovery do  n;t a:p'y
 to  administrative proceedings.   More  important  in the instant  case,  tne
salient question  as ruled by the express provisions, cited hereinabove, of
Section 30C7 of  RCRA:

-------
                              "(Res pone er.:) sh:'1, upon re;je?t --- fjrnisn ir.f:r-.:tio- rslatin:
                              to s;; c.i wastes ---".
9834* 4            The offense here cr.a-ged is "regulatory."  As stated  in 5e1sir.:er-  v. ;.:,
                    (1955), 29rs_lE9; <2 >.2d 214, "In regulatory offenses, the public  interest
                    outweighs the individual interest."  For the sake of adequate public.
                    protection,  it  is necessary  to require a standard cf conduct whicr, assures i
                    result that  will protect the public to the extent intended  by the Act.   The
                    relevance of the subject information to the instant proceeding  is an importjr.;
                    consideration.  The information sought consists of data end  records necessary
                    to the proper prosecution of the subject Complaint and regulatory action
                    germane thereto.  In general,  e-xerption of documents from discovery  is base:
                    on principles of putlic policy, and the holdings indicate that  such  exemptions
                    are narrowly construed; interpretations of such are generally grounded in the
                    principle that  the interpretation must uphold rather than vitiate the Act.
                    Here the subject statue must be read in a manner which effectuates rather than
                    frustrates the  major purpose of the legislation (see Shapiro v. U.S.. 325 US.!  (19*;;
                    Further, I do not find that  Complainant's request for subject information to be
                    either "too  broad" or "vague and indefinite."  A movant for production should
                    not be held  on  "too strict a shewing" z* content cf record  he has never  seer.
                    (State ex re1 .?:s.-/e-'  v. "l.-rt's. 23- S.W.2: 7:7 (: ;=0)}.  The repor.'ses of
                    Hughes ir.ake  clear that .".: ir.:":rrr.ation is available, as to tests  for DCE and
                    indicate that tests fcr TCI  are "data cove-ed by privilege."  In like manner
                    Respondent's claim of confidentiality must be surr.arily rejected  (see
                    40 C.F.R. 2.30;g) where provision is made for disclosure of information
                    (actually furnished) "because  of the relevance of the information in a :-c:eed:"
                    under the Act (RCRA).")
                         By reason of the foregoing, Respondent's Motion to Dismiss and Alte-rafive
                    Motion for a More Definite Statement, along with its suggestion of confidentiality
                    appearing herein, are denied.
                                                      ORDER
                         It is  here:y ordered that Respondent shall, witnin fifteen cays frcr. tr.e
                    date hereof:
                         1.  Furnish to U.S. Environmental Protection Ager.cy the results of any ar.d all
                    tests, made  by  it or at Us  instance or procurement, cf samples taken by Ecology an:
                    Environment, Inc. from wells in the vicinity of Tucson International Airport {''.-]
                    on March 5,  Isc!', on or about  May 28, 19S1, and

-------
9834'4
     2.   Furnish t: U.S.  Environmental  Protection  Agency  the  kest  res.'t

sampling (soil, water supply,  and well  water)  fcr TCE,  DCE or  Cr*  cor;.;:

by Respondent on its property or in the vicinity of TIA.

     It is further ordered that:

     1.   Failure of Respondent to comply with the  above order,  and wit;.

Compliance Orcer herein previously made,  shall  constitute  a 'continuing

violation;

     2.   Pror.pt co-pliance with said orders  snail  be  considered in arrv,

at the amount of the penalty,  if any, to  be properly assessed  herein.

     It 1s so ordered.
                                                                                              in:
                      Dated
                                      P-  ?g.
                                                                  Marvin  I.  Jcr(esx-^
                                                                  AdministratiftLaw Ju'dge
                                                CERTIFICATE  OF  SERVICE
                      I certify that the original  of  this  Order  Denying Motion and Reouiring
                      Compliance ws rr.ailec  by certified mail, return  receipt requester,  to tre
                      Regional Hearing Clerk,  Region  IX, U.S. Environmental  Protection Agency,
                      215 Frencr.t Street, San  Franciscc, California  94105 and tna.t true ar.c
                      correct copies were sent to  the following  on this    J57 r>-'   day  of
                      Decemoer 1SS1.
                           Mr. David L.  Mulliken
                           Latham & I/atkins
                           555 South Flower  Street
                           Los Angeles,  California  90071

                           Mr. John D. Rothr.an
                           Enforcement Division
                           U.S.  Environmental Protection Agency
                           Region IX
                           2:5 Fre-ont Street
                           San Francisco,  California  94105
                                                  Certified Mail  P0  5c317i;
                                                  Return Receipt  Requests:
                                                  Certified Kail  P04  53:7!.
                                                  Return Receipt  Rec,ueste2
                                                                        Mary tou Jtlutor,
                                                                        Secretary to Marvin E. Jones

-------
   '***
     J        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                  -       _          REGION I
              0. F. KENNEDY FEDERAL BUILDING. BOSTON. MASSACHUSETTS 02200
                                                                          9834,4


Address


CERTIFIED MAIL
RETURN RECEIPT REQUESTED

Re:  SiJresim Chemical Corporation hazardous waste facility in Lowell, Massachu-
     setts

Dear Sir or Madam:
                                                           0

In notice letters issued in August and September of this year, the Environmental
Protection  Agency (EPA)  and the Commonwealth of Massachusetts notified you of
potential liability that your company may incur or may have incurred in connection
with the  Silresim Chemical  Corporation hazardous waste  facility in Lowell,
Massachusetts.   In  that  same  correspondence, EPA requested that you furnish
information and copies of records describing your company's involvement with the
SUresim facility.  You were  advised  that this information was being  requested
pursuant to Section 10^(e) of the Comprehensive Environmental Response, Com-
pensation,  and  Liability  Act (CERCLA) and  pursuant to Section  3007 of the
Resource Conservation and Recovery Act (RCRA).  Responses to these information
requests were  due to EPA within  30  days of your receipt of the  request.  At a
September  21 meeting in  Boston with responsible parties, this deadline was altered
to require  response within  30 days of receipt or  by October  1, whichever came
later.  In  addition,  because of  the difficulty your company  had experienced in
locating information  relevant  to  the information  request,  your  company also
received a  letter supplying you with further information to assist you in locating
information in your files.  As announced at the September 21 meeting, recipients ol
these "tip sheet" letters received an additional ten day  extension of  the response.
deadline dating from the date of receipt of that letter.

EPA has not yet received any information from your company in reponse to this
information request, despite the fact that the applicable deadline has passed. We
hereby request that you promptly supply EPA with any information that you have
collected to date in reponse to  this information request.  We also  ask that you
complete your document  search promptly and forward any additional material to
EPA at that time.  In the event that  you have been unable to find any such
information at  the  conclusion of  your  document search,  you are requested to
provide an  affidavit to that effect in order to formalize your company's compliance
with EPA's information request.  Your affidavit should be  signed by the company

-------
November 7, 1983                                                    9834.4
Page 2
official responsible for the company's response to EPA's information request, and it
should indicate that a diligent search of the company records has been conducted
and that all  relevant  information  discovered  in that search, if  any,  is being
presented to EPA.

Continued noncompliance  with these information requests may pose a serious
impediment to the negotiations currently underway on this site.  Moreover, it is
EPA's position that failure to comply with these  requests within the specified time
period is a violation of federal law which may result in administrative or civil
enforcement action, including penalties under Section 3008 of RCRA of up to
$25,000 per day for each day of continued noncompliance.  In most cases EPA will
consider noncompliance to have  begun on the revised deadline described in the first
paragraph of this letter.

EPA  is  currently evaluating  which of its  enforcement options  might  be  most
appropriately  taken in response to noncompliance with its information  requests
relative to the SUre'sim facility  and will decide on a course of action shortly after
November  11, 1983.  In order  to mitigate the extent of any enforcement actions
that may be forthcoming  in this 'matter, your company is hereby encouraged to
comply in-full -with the information request by dose of business on that date. Your
response should be sent to:   .                        .-     '       .

                     E. Michael Thomas, Esq.
                     Environmental Protection Agency
                    . Office of  Regional Counsel
                     3FK Federal Building, Room 2203
                     Boston, MA 02203

If you have any  questions on this matter, please call me  or Attorney 3ames T.
Owens, mat (617) 223-0^00.

Sincerely,
E. Michael Thomas, Attorney
Office of Regional Counsel

cc:   Paul Ware, Esq. Chairman, Silresim Generators Negotiating Subcommittee
      Director, EPA Office of Waste Programs Enforcement
      Douglas Farnsworth, Esq., EPA Office of Enforcement and Compliance
          Monitoring
      Lloyd Cuerci, Esq., US. Department of Justice
      Lee Breckenridge, Esq., Massachusetts Office of the Attorney General

-------