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
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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
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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
^^^^
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9834,4
Attachment IX
\
Policy on Enforcing Information
Requests in Hazardous Waste Cases
9/10/84
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t
«•
s
\
* UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
/ WASHINoTG.J. D.C. 20460
'-. p«o-.^
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
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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.
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- 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.
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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
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~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.
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. . 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.
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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..."
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- 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
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- 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.
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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
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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 s«m?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."
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• *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:
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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 Heff»ner, 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:
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"(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), 29£rs_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
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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 w»s 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 5£3:7!.
Return Receipt Rec,ueste2
Mary tou Jtlutor,
Secretary to Marvin E. Jones
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'***
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
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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
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