A ^ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
\
MAR 3 ! 1993
MEMORANDUM
SUBJECT: Revised Policy on Discretionary Information Release
Under CERCLA (OSWER Directive 983i. 12-Oia)
FROM: Bruce M. Diamond, Directojr^gS^^tf /
Office of Waste Programs Enforcement
William A. White, Enforcement Counsel for Sugei
Office of Enforcement
TO: Hazardous Waste Division Directors, Regions I - X
Regional Counsels, Regions I - X
This memorandum transmits the Revised Policy on
Discretionary Information Release Under CERCLA. OSWER Directive
9835.12-Ola. The draft policy was issued for review and comment
on September 3, 1992.
OSWER Directive 9835.12-Ola revises Releasing Information to
Potentially Responsible Parties at CERCLA Sites. OWPE and OECM-
Waste, March 1, 1990, OSWER Directive 9835.12. In addition, the
Directive is consistent with Guidance on Preparing and Releasing
Waste-in Lists and Volumetric Rankings to PRPs Under CERCLA.
OWPE, February 22, 1991, OSWER Directive 9835.16. Finally, the
Directive supersedes all other previous policy and guidance on
the question of discretionary information release under CERCLA.
We are confident that this revised policy will help to
streamline and expedite the CERCLA settlement process. In
addition, we believe that the policy will send a clear message to
the PRP community that the Agency endeavors to administer the
Superfund enforcement program in as fair and equitable a manner
as practicable.
We would like to thank your staffs for the assistance they
provided in developing this policy. Questions concerning
implementation of the policy may be addressed to Bruce Gruenewald
in the Office of Waste Programs Enforcement (OS-5502G/FTS 703-
603-8935) or Patricia Sims in the Office of Enforcement (LE-
134S/FTS 202-260-2860).
Attachment
Superfund Branch Chiefs, Regions I - X
Regional Counsel Branch Chiefs, Regions I - X
PRP Search Chiefs, Regions I - X
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Attachment
Revised Policy on Discretionary
Information Release Under CERCLA
OSWER Directive 9835.12-Ola
pSWER Directive 9835.12-Ola revises Releasing Information to
Potentially Responsible Parties at CERCLA Sites. OWPE and OECM-
Waste, March 1, 1990, OSWER Directive 9835.12. In addition, the
Directive is consistent with Guidance on Preparing and Releasing
Waste-in Lists and Volumetric Rankings to PRPs Under CERCLA.
OWPE, February 22, 1991, OSWER Directive 9835.16. Finally, the
Directive supersedes all other previous policy and guidance on
the question of discretionary information release under CERCLA.
Information release is an important means by which the
Agency can facilitate PRP organization and coalescence. This
serves the Agency's interests by helping to streamline and
expedite settlements with PRPs. The purpose of this revised
CERCLA information release policy is to minimize potential
impediments to facilitating PRP organization and coalescence.
Consequently, information on PRP waste contribution at
CERCLA sites normally should be made available to all PRPs as
soon as practicable, preferably well before special notice is
issued. Regions should consider releasing information through
PRP meetings or directly to PRPs or PRP steering committees.
Information on PRP waste contribution at CERCLA sites,
including that developed by EPA, can consist of manifests, waste
tickets, logbooks, billing records, canceled checks, process
engineering information, waste-in lists, volumetric rankings, and
responses to section 104(e) information requests. Generally,
information on PRP waste contribution should be released to PRPs
and not withheld, nor should such information be made available
only through Freedom of Information Act (FOIA) requests.
If information on PRP waste contribution is potentially
subject to claims of privilege or FOIA exemptions, there
nonetheless should be a preference in favor of release.
Information subject to privileges or exemptions should be
withheld only if a case-specific determination is made by program
personnel and legal counsel (and briefly noted in the case file)
that an important purpose is served by withholding the
information from the PRPs or the public. However, documentation
concerning the exercise of prosecutorial discretion, such as
which parties will be noticed or pursued in litigation, normally
would not be releasable. When releasing information, the Agency
must, however, ensure that disclosure of information that may be
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OSWER Directive 9835.12-Ola
entitled to confidential treatment is made pursuant to section
104(e)(7) of CERCLA and 40 CFR Part 2.
The Agency also should make reasonable efforts to assist de
minimis parties and parties unfamiliar with Superfund in the
coalescence process by providing them with additional Superfund
program information. De minimis parties can be small businesses
or others with little or no previous Superfund experience. The
Agency can implement this aspect of the policy by distributing
Superfund background information prior to PRP meetings, and by
holding special meetings for parties who are new to the program
or who lack experience in the CERCLA settlement process.
This guidance and any internal procedures adopted for its
implementation are intended solely as guidance for employees of
the U.S. Environmental Protection Agency. Such guidance and
procedures do not constitute rulemaking by the Agency and may not
be relied upon to create a right or benefit, substantive or
procedural, enforceable at law or in equity, by any person. The
Agency may take action at variance with this guidance and its
internal implementing procedures.
In addition, under Agency policy, documents falling within
Exemptions 7(C) (privacy information) and 7(D) (confidential
informants) of FOIA are subject to mandatory withholding.
Sometimes, however, information falling within these exemptions
will be contained in otherwise releasable records, and this
information must be redacted prior to release.
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