PRP Search Manual: Prepared for Personnel Performing PRP Searches


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PRP Search Manual
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Prepared for:
Personnel Performing PRP Searches

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United States Environmental Protection Agency
Washington, D.C. 20460
August 20, 2003
Office of Enforcement and Compliance Assurance
MEMORANDUM
SUBJECT: Transmittal of the 2003 Potentially Responsible Party Search Manual
FROM: Susan E. Bromm, Director 1sf
Office of Site Remediation Enforcement
TO: Superfund National Policy Managers (Regions I - X)
Regional Counsel (Regions I - X)
I am pleased to announce the distribution of the 2003 Potentially Responsible Party Search
Manual (Manual).
The Manual was written by a dedicated group of Agency experts who are Involved in the PRP
search process, and reviewed by a national work group and the PRP Search Enhancement Team.
Their collective effort has resulted in a useful tool that will enhance the PRP search process.
The Manual is a working document intended to provide information to those persons
involved in the PRP search process. Users are encouraged to provide any comments regarding the
Manual to one of the PRP Search Enhancement Team members/contacts (Team) listed below. Any
changes that need to occur to the Manual due to new legislation, new policy or guidance and from
relevant comments received, will be documented by the Team, and the Manual will be updated as
necessary.
Procedures and information contained in the Manual are based on current, existing EPA
policy and guidance. For the users’ convenience, any references and/or guidance documents
mentioned in the Manual are supported by a web-site address or hard copy.
Six (6) hard copies are being provided to Team members to distribute in their regions. The
Team will now begin the process to place the Manual on-line. Future updates of Manual chapters
will be available electronically.

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2
If you have any questions or comments regarding this Manual, please contact Nancy Deck a
202/564-6039 (deck.nancy@epa.gov) or a PRP Search Enhancement Team member.
PRP Search Enhancement Team Members/Contacts
cc: Bruce Gelber, DO)
Alan Carpien, OGC
Sandra Connors, OSRE
Paul Connor, OSRE
Mike Cook, OSRTI
David Kling, FFEO
Region 1 James
Israel and Barbara O’Toole
Region
6
Buddy Parr and Janice
Bivens
Region 2 Carol
Berns
Region
7
Cheryle Micinski and Dianna Whitaker
Region 3 Harry
Steinmetz
Region
8
Dave Broste and Greg
Phoebe
Region 4 Herb
Miller
Region
9
Cliff Davis
Region 5 Doug
Ballotti and Tom
Marks
Region
10
Deborah Burgess

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Preface
The Potentially Responsible Party Search Manual provides an overview of the PRP search
process, identifies tools for finding PRP5 early in the process, and provides a framework for
conducting thorough PRP searches that identify the universe of PRPs with comprehensive
evidence of liability. It provides an outline of the general objectives of the PRP search,
describes typical baseline and followup PRP search tasks, and provides specific tools and
references from which the user may select those most appropriate for a particular search or
site.
The manual may be used at “new” sites where PRP searches are planned, at sites where PRP
searches are ongoing, and at sites where the PRP search was considered “complete” but
additional tasks may need to be performed for settlement or cost recovery purposes. It is
designed primarily as a reference tool for EPA, state, and tribal staff involved in PRP
searches, and is not intended to circumscribe or limit the legitimate investigative activities
and inquiries of experienced PRP search staff.
The manual is composed of four chapters: Overview of CERCLA and PRP Searches, PRP
Search Planning Overview, Baseline PRP Search, and Followup PRP Search.
Chapter 1
Overview of CERCLA and PRP Searches presents an overview of CERCLA and CERCLA
liability, the use of PRP search information, and general information about how and why
the Agency gathers, exchanges, and manages PRP search information.
Chapter 2
PRP Search Planning Overview describes potential roles and responsibilities of parties involved in
PRP searches, factors that should be considered in search planning, and opportunities for
PRP input to the search process.
Chapter 3
Baseline PRP Search describes tasks most often performed during the initial PRP search.
Chapter 4
Followup PRP Search describes more specialized tasks that may be employed during a
followup to the baseline phase in order to complete the PRP search.

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Acknowledgments
This manual was prepared by the Office of Site Remediation Enforcement in EPA’s Office of
Enforcement and Compliance Assurance. The manual is a result of a collective effort by a
national workgroup comprised of representatives from various Headquarters and Regional
offices and the Potentially Responsible Party (PRP) Search Enhancement Team. Nancy Deck
served as EPA’s Project Manager and Neilima Senjalia as the Management Advisor. The PRP
Search Enhancement Team guided and provided assistance throughout the revision process.
The culmination of this teamwork is a manual which serves as a reference document and
covers all aspects of the PRP search process.
The following persons provided significant input in the development, review or with specific
chapters of the manual. Many thanks go out to these and all other persons who contributed.
PRP Search Manual Regional Work Group
David Kluesner (2), Joan Armstrong (3), Carlyn Prisk (3), Leo Mullin (3), Janice Bivens (6),
Cheryle Micinski (7) and Cliff Davis (9).
National PRP Search Enhancement Team and Contacts
James Israel and Barbara O’Toole (1); Carol Berns (2); Harry Steinmetz (3); Herb Miller (4);
Doug Ballotti and Tom Marks (5); Buddy Parr and janice Bivens (6); Cheryle Micinski,
Dianna Whitaker and Evan Carpenter (7); David Broste and Greg Phoebe (8); Elizabeth
Domagalski and Cliff Davis (9); Deborah Burgess (10); Lisa Blum, Clarence Featherson,
Nancy Deck (Team Leader), Neilima Senjalia and Monica Gardner (OSRE-HQ).
EPA Headquarters
Susan Boushell (OSRE), Linda Boornazian (OCFO), Alan Carpien (OGC), Ariadne Goerke
(OGC), Tracy Gipson (RSD), Robert Kenney (PPED), David Kluesner (PPED), Ben Lammie
(RSD), Robert Lindsey (PPED), Dela Ng (PPED), Mike Northridge (RSD), Ken Patterson
(RSD), Bruce Pumphrey (OSWER), Debby Thomas (OC), and Gary Worthman (RSD).
Headquarters Contractor: DPRA Incorporated
NOTE: The PRP Search Manual and future updates thereof will
be available electronically on the EPA Internet. For availability
of the electronic version and additional information, please
contact Nancy Deck at 202/564-6039 (deck.nancy©epa.gov)
or a PRP Search Enhancement Team member listed above and
in Appendix H).

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Disclaimers
This manual supersedes the PRP Search Manual, August 27, 1987 (9834.3-lA) and the
PRP Search Supplemental Guidance for Sites in the Superfund Remedial Program, )une
29, 1989 (9834.3-2a) published by the U.S. Environmental Protection Agency’s former
Office of Waste Programs Enforcement.
The policies, methods, and procedures set forth in this manual, and internal government
procedures adopted to implement them, are intended as guidance for U.S. Environmental
Protection Agency and other government employees. They do not constitute rulemaking
by the Agency and may not be relied on to create a substantive or procedural right or
benefit enforceable by any other person. The government may take action at variance
with the policies, methods, and procedures in this manual.
When the term “generator” is used in this manual, it is not used in its most commonly
understood sense, i.e., “a party that creates a material.” The term has a broader
meaning under the Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA). Refer to subsection 1.2.4, “Categories of Potentially Responsible Parties,”
which states that it is commonly used to designate an entity that generated a hazardous
substance or arranged for its disposal or treatment. Thus the term “generator” can
encompass corporations that have entered into disposal contracts, waste brokers, and
corporate officers who are Involved in, or responsible for, waste disposal.

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Table of Contents

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PRP Search Manual
September 2003
ci
—
T II1
L L 4
1.0 OvervlewofCERCLAandPRPSearches I
1.1 ReviewofCERCLA 1
1.1. 1 Overview of Superfund Cleanup Process 2
1.1.2 Overview of CERCL.A Enforcement 5
1.2 CERCLA Liability 6
1.2.1 Prima Facie Case 6
1.2.2 Strict Liability 9
1.2.3 Joint and Several Liability 9
1.2.4 Categories of Potentially Responsible Parties 11
1.2.5 Statutory Defenses to CERCLA Liability 15
1.2.6 Statutory Exemptions and Protections from CERCLA Liability 17
1.2.7 EPA’s Discretionary Policies 29
1.3 PRP Notification of Liability 34
1.3.1 General Notice Letters 34
1.3.2 Special Notice Letters 36
1.3.3 Types of Settlements 38
References 39
2.0 PRPSearchPlannlngOvervl.w 43
2.1 Roles
2.1.1
2.1.2
and Responsibilities 46
PRP Search Team 46
Opportunities for PRP Input to the Search 54
Table of Contents

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2.2 Site Ilanagenient Plan . . . 68
2.3 PRPSearch Plan 68
2.3.1 Timing and Duration 71
2.3.2 Streamlining Considerations 80
2.4 PRPSearchTasks 82
2.5 Document Filing and Retention and Release 91
2.5.1 Document Management 91
2.5.2 CERCLIS/WasteLAN 92
References 94
3.0 Baseline PRP Search 97
3.1 ReviewFilesandCollectRecords . 97
3.1.1 Federal Files 98
3.1.2 State Files 100
3.1.3 Local Government Files 101
3.1.4 Other Records 102
3.1.5 Special Planning Considerations 103
3.2 Organize Records and Track Correspondence . . 108
3.2.1 Organization 108
3.2.2 Correspondence Tracking 111
3.3 Issue Information Requests 113
3.3.1 Identify Recipients/Draft Information Requests 115
3.3.2 Mail and Track Information Requests 132
3.3.3 Analyze Responses 134
3.3.4 Develop Response Summaries 135
3.3.5 Information Request Followup 136
Table of Conte
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3.4 Conduct Inter ,ie A,s . . . . . . . . . . . . . . . . 137
3.4.1 Interview Considerations 138
3.4.2 Who Performs the Interview 143
3.4.3 Identifying Interviewees 144
3.4.4 Conducting Interviews 145
3.4.5 Interview Documentation 151
3.5 Perform Title Search 154
3.5.1 Determine Ownership Interests 154
3.5.2 Develop a “Title Tree” 156
3.6 BusinessStatusandFinancialResearch ............ 158
3.6.1 Introduction 158
3.6.2 Forms of Business Organization . . 159
3.6.3 Person 160
3.6.4 Business Organization 161
3.6.5 Sole Proprietorships 161
3.6.6 Partnerships: General Partnerships and Limited Partnerships . . 162
3.6.6.A Elements Specific to a General Partnership 163
3.6.6.B Elements Specific to a Limited Partnership 164
3.6.7 CorporatIons 165
3.6.7.A Elements Unique to Corporations 167
3.6.7.B Classification of Corporations . . . 168
3.6.7.C Evolution of Corporations 170
3.6.7.D Sale of Stock in a Corporation . . 172
3.6.8 Indemnification Agreements 173
3.6.9 Other Entitles 174
3.6.10 Additional Liability Theories 177
3.6.10.A Direct Liability of a Person as an Operator or
as a Person Who Arranged for Disposal or
Treatment of Hazardous Substances 177
3.6.10.B Corporate Officers, Employees, Directors,
or Shareholders 178
3.6.10.C Liability of Parent and Affiliated Corporations 179
Table of Contents
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3.6.10.D Elements of Direct Liability 180
3.6.10.E Piercing the Corporate Veil 182
3.6.10.F Successor Liability 186
3.6.11 Financial Research 189
3.6.11.A Corporation and Partnership Filings Required
by States 190
3.6.11.B County Filings and Other State Regulatory Agencies 191
3.6.11.C Court Filings 191
3.6.11.D Federal Sources 191
3.6.11.E Corporate Directories 191
3.6.11.F Credit Reporting and On-Line Services 192
3.7 Site Summary Development 192
3.8 CompileWaste—Ininformation . 195
3.8.1 Transactional Databases 196
3.8.2 Waste-In Lists and Volumetric Rankings 198
3.9 Classify PRPs 205
3.9.1 Identify PRPs 205
3.9.2 Define PRP Category 206
3.10 PrepareBaselinePRPSearchReport ...... 208
3.10.1 Report Format and Content 208
3.1O.1.A Deliverable 1: Site Chronology and Property History 209
3.1O.1.B Deliverable 2: PRP Synopsis 210
3.10.2 Report Review and Distribution 211
Figure 1 212
References 215
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4.0 Followup PRP Search . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
4.1 Issue Followup Information Request Letters 218
4.2 Compel Compliance with CERCLA Section 104(e) 220
4.3 Issue Administrative Subpoenas 223
4.4 Perpetuate Testimony Using Rule 27 226
4.5 Perform Ability To Pay Determinations 229
4.5.1 General Policy on Superfund Ability To Pay Determinations . . . . 230
4.5.2 ATP Information Sources 232
4.5.3 Performing Property Appraisals 238
4.6 Perform Insolvent and Defunct Determinations .. .... . ....... 241
4.6.1 Definition 241
4.6.2 Insolvent and Defunct Determinations 242
4.7 Perform Waste Stream Analyses 247
4.7.1 Industrial Surveys 247
4.7.2 Process Chemistry Analysis 247
4.7.3 Waste Stream Inventory 248
4.7.4 Mine Sites 249
4.8 Prepare and Review Interim Final Report 249
4.8.1 Interim Final Report Followup 250
4.9 Pursue Litigation and Cost Recovery 250
References 257
Table of Contents
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Chapter 1

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1.0 OvervlewofCERCLAandPRP$earches .
I
1.1 Overview of CERCLA 1
1.1.1 Overview of Superfund Cleanup Process 2
1.1.2 Overview of CERCLA Enforcement 5
1.2 CERCLA Liability 6
1.2.1 Prima Facie Case 6
1.2.2 Strict Liability 9
1.2.3 Joint and Several Liability 9
1.2.4 Categories of Potentially Responsible Parties 11
1.2.5 Statutory Defenses to CERCLA Liability 15
1.2.6 Statutory Exemptions and Protections from CERCLA Liability 17
1.2.7 EPA’s Discretionary Policies 29
1.3 PRP Notification of Liability
1.3.1 General Notice Letters
1.3.2 Special Notice Letters .
1.3.3 Types of Settlements .
34
34
36
38
References 39
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Chapter 1: Overview of CERCLA and PRP Searches

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1.0 Overview of CERCLA and PRP Searches
PRP Search Manual
September 2003
1.1
Overview of
CERCLA
1 HHUUSW4S TC _l
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The objective of the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) as amended by the
Superfund Amendments and Reauthorization Act (SARA) (see
Chapter 1 references, page 39) is to reduce and eliminate threats
to human health and the environment posed by uncontrolled
hazardous waste sites. To meet this objective, CERCLA created:
• a hazardous waste site response program; and
• a comprehensive liability scheme that authorizes the
government to hold persons who caused or contributed to
the release of hazardous substances liable for the cost or
performance of cleanups.
In enacting CERCLA, Congress authorized the President or the
delegated federal agency to draw funds from a revolving trust fund
called the Hazardous Substance Superfund (“Superfund,” “Trust
Fund,” or “Fund”) to respond to releases or threatened releases of
hazardous substances.’
CERCLA provides EPA with three basic options for cleaning up a
hazardous waste site:
‘The petroleum and chemical teed stocks tax and the environmental
income tax (UT) along with funds from general revenues funded the Superfund.
These taxes have not been levied since the end of 1995 when the taxing authority
expired.
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• Under CERCLA sections 104 and 107, EPA can perform a
response action at the site using Superfund money and
recover response costs from potentially responsible parties
(PRPs).
• Under CERCLA section 106, EPA can order, or ask a court to
order, PRPs to clean up the site.
• Under CERCLA section 122, EPA can enter into settlement
agreements with PRPs that require PRPs to clean up the site
or pay for cleanup under CERCLA section 107.
Overview of the
Superfund
Cleanup Process
CERCLA section 104(a) authorizes the President to respond to a
release or substantial threat of release to the environment of a
hazardous substance or a pollutant or contaminant. Also, CERCLA
section 104 authorizes the President to address hazardous waste
sites through removal and remedial response actions. By
executive order, EPA and other federal agencies have been
delegated authority to undertake these response actions. EPA also
has responsibility for overseeing all response actions at sites on
the National Priorities List (NPL).
“Removal” is defined in CERCLA section 101(23) as “the cleanup or
removal of released hazardous substances from the environment,
such actions as may be necessary taken in the event of the threat
of release of hazardous substances into the environment, such
action as may be necessary to monitor, assess, and evaluate the
release or threat of release of hazardous substances, the disposal
of removed material, or the taking of such other actions as may be
necessary to prevent, minimize, or mitigate damage to the public
1.1.1
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health or welfare or to the environment, which may otherwise
result from a release or threat of release.”
“Remedial action” is defined in CERCLA section 101(24) as “those
actions consistent with permanent remedy taken instead of or in
addition to removal actions in the event of a release or threatened
release of a hazardous substance into the environment, to prevent
or minimize the release of hazardous substances so that they do
not migrate to cause substantial danger to present or future public
health or welfare or the environment.”
EPA may respond to a release or substantial threat of release into
the environment of any hazardous substance, or to a release or
substantial threat of release into the environment of any pollutant
or contaminant that may present an imminent and substantial
danger to public health or welfare. CERCLA section 104, however,
limits Fund-financed removal actions by both time and cost.
Without a case-specific waiver, the President may only use Trust
Fund money to finance removal actions for up to one year and up
to $2 million. Waivers of the time or cost limits may be issued to
abate an emergency or to allow removal activity that is consistent
with further remedial actions at the site.
CERCLA section 104 limits the use of Superfund money for
remedial actions to sites meeting the following three conditions:
• The site is listed on the NPL.
• The state in which the site is located either contributes or
provides financial assurances for 10 percent of any
remedial costs incurred by Superfund and all operations
and maintenance (O&M).
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• The remedial action is not inconsistent with the National Oil
and Hazardous Substances Pollution Contingency Plan
(NCP).
A site does not have to be listed on the NPL for EPA to perform a
removal, site investigation, or remedial design, or to enforce a
remedial action. (NPL listing only limits EPA’s performance of a
remedial action.) Also, if a state or subunit of a state owned or
operated the site, the state must contribute at least 50 percent of
the response costs incurred. CERCLA section 104(c)(3) exempts
tribes from the requirement that states provide assurances
regarding future maintenance and cost sharing at remedial action
sites.
CERCLA section 104(a)(3) and (4) limits EPA’s authority to
respond to releases or threats of release of naturally occurring
substances, from products that are part of the structure of
residential or other buildings, and into drinking water supply
systems due to deterioration through ordinary use of the system
unless the President determines that the release or threat of
release is an emergency and no one else has the authority and
ability to respond to it.
The major regulation implementing CERCLA is the National Oil and
Hazardous Substances Pollution Contingency Plan. (See Chapter 1
references, page 39.) It establishes the framework for
implementing Superfund response actions to address releases or
threats of releases of hazardous substances, pollutants, or
contaminants. The NCP was revised in 1994 to reflect the oil spill
provisions of the Oil Pollution Act of 1990 (OPA) (see Chapter 1
references, page 39) and is occasionally supplemented with
regulations implementing amendments of CERCLA.
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1.1.2
Overview of EPA has adopted an “enforcement first” policy for removal and
CERCLA remedial actions at CERCLA sites. This means that when PRPs for
a site have been identified, EPA typically will first pursue the PRPs
Enforcement to conduct the site response rather than conduct the cleanup with
Superfund money.
EPA may seek to obtain PRP participation through voluntary
settlements, unilateral orders, or litigation. Approximately 70
percent of all Superfund cleanups are PRP-lead. In addition, EPA
may take the lead for cleanup activities and seek to recover its
costs from PRPs.
A PRP search seeks to establish evidence of liability by identifying
PRPs and associating their waste type and volume with that found
at the site. EPA identifies PRPs and collects evidence by sending
section 104(e) information request letters, reviewing documents,
conducting interviews, and performing research.
The information gathered during a PRP search should enable EPA
to assess the nature of the party’s involvement at the site (such as
owner, operator, generator, or transporter, described in subsection
1.2.4). The PRP search should gather information about a party’s
potential defenses (e.g., third party defense) or exemptions (e.g.,
municipal solid waste). In addition, the PRP search should identify
those PRPs that may have a limited ability to pay (AlP) or are
insolvent or defunct (“orphan”). Finally, the PRP search should
assist in the early identification of contributors of relatively small
quantities of hazardous substances (e.g., de minimis and
de micromis parties.)
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One of the primary objectives of the PRP search is to identify the
entire universe of PRPs. Thorough PRP searches enhance EPA’s
success in negotiating with PRPs to conduct the response activity
under EPA’S oversight. In addition, early identification of PRPs
enables EPA to issue general notice letters (GNLs) promptly to
parties to inform them of their potential liability at a site. These
PRPs may then be able to help EPA locate other PRPs to share the
cost of the response activity. When PRPs are identified and
notified early in the remedial process, there is a greater likelihood
that they will decide to undertake appropriate response actions.
Finally, the early identification of PRPs affords EPA the opportunity
to settle with small volume contributors promptly, thereby
minimizing their transaction costs. For example, CERCLA section
122(g) authorizes de minimis settlements with parties whose
contribution is minimal in amount and toxicity if the settlement
1.2 involves only a minor portion of the response costs.
CERCLA
Liability
1.2.1
Prima Facie Case . . .
“Prima facie” is not a CERCLA definition but a legal term meaning
legally sufficient to establish a fact or case unless disproved.”
This term is used to describe the basic set of facts that EPA must
be able to prove to establish that a person is liable under CERCLA,
i.e., that:
• there was a release or threatened release;
• of a hazardous substance;
• from a facility;
• that caused the government to incur response costs; and
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• the party is in at least one of the four classes of PRP5
described in CERCLA section 107(a).
There are several key definitions associated with the elements
listed above:
• “Release” is defined in CERCLA section 101(22) as “any
spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, or
disposing into the environment.”
• “Hazardous substance” is defined in CERCLA section
10 1(14) as any substance EPA has designated under
specified provisions of the Clean Air Act, the Clean Water
Act, the Toxic Substances Control Act, and the Resource
Conservation and Recovery Act (RCRA). (See Chapter 1
references, page 39.) EPA also may designate additional
substances as hazardous substances under CERCLA. EPA
maintains and updates a list of hazardous substances in
Title 40 of the Code of Federal Regulations, Part 302. (See
Chapter 1 references, page 39.)
• “Pollutant or contaminant” is defined in CERCLA section
101(33) as any other substance not on the list of
hazardous substances which “will or may reasonably be
anticipated to cause” adverse effects in organisms or their
offspring.
• “Facility” is defined in CERCLA section 10 1(9) as “any
building, structure, installation, equipment, pipe or pipeline
(including any pipe into a sewer or publicly owned
treatment works), well, pit, pond, lagoon, impoundment,
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ditch, landfill, storage container, motor vehicle, rolling
stock, or aircraft, or any site or area where a hazardous
substance has been deposited, stored, disposed of, or
placed, or otherwise come to be located; but does not
include any consumer product in consumer use or any
vessel.” The term “facility” has been interpreted to include
the site of a hazardous waste disposal operation; ground
upon which hazardous substances were deposited; and
trucks from which hazardous substances were released into
the environment, even though the trucks themselves were
not the subject of a removal or remedial action.
“Response” is defined in CERCLA section 101(25) as
“remove, removal, remedy, and remedial action.”
Response costs include the costs of investigations,
sampling, remedial studies, monitoring, and testing to
identify the nature and extent of the release or threatened
release, or the extent of the danger to public health,
welfare, or the environment; planning and implementation
of a response action; the recovery of costs associated with
these actions, including costs incurred by EPA and other
entities, such as the Department of Justice (DOJ), Coast
Guard, and the states. These response costs include direct
as well as indirect costs (general EPA operating costs).
Costs associated with the oversight of PRP response actions
are also recoverable. 2 Section 104(a)(1) specifically
2 In states under the jurisdiction of the United States Court of Appeals for
the Third Circuit — Pennsylvania, New Jersey, Delaware, and the Virgin Islands —
there are limitations on EPA’s authority to recover costs for oversight. See U.S. v.
Rohm & l-laas Co., 2 F.3d 1265 (3d Cir. 1993) (costs of EPA’s oversight of a
removal action conducted by a private party cannot be recovered under CERCLA).
This aspect of the Rohm & Haas decision has not been followed outside the Third
Circuit.
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provides for recovery of oversight costs for PRP-conducted
remedial investigation and feasibility study (RI/FS) work.
Response costs do not include civil penalties for violations
of statute, but they do include interest on past
expenditures. 3 Response costs incurred prior to CERCLA’s
enactment also may be recovered. Cost recovery actions
may be filed at any time after response costs have been
incurred; however, they must be initiated within the statute
of limitations defined in CERCLA section 113(g)(2) and
described in more detail in section 4.9 of this manual.
1.2.2
Strict Liability CERCLA section 107(a) imposes strict liability on the four classes
of parties described and listed on page 10. Strict liability means
that PRPs are liable even if:
• the problems caused by the hazardous substance release
were unforeseeable;
• the PRP’s actions were legal at the time they occurred; and
• state-of-the-art waste management practices were used at
the time the materials were disposed of.
1.2.3
Joint and Several In addition, CERCLA liability is usually joint and several. This
Liability means that any one PRP can be held liable for the entire cost of
site cleanup, regardless of the share of the waste contributed by
that PRP. The PRP who pays the costs can then seek contribution
from the non-paying PRPs. In general, however, EPA attempts to
identify and notify the universe of PRPs at a site and negotiate
with the largest manageable number of parties.
Comptroller Policy Announcement 87-Il, “Interest Rates for Debts
Recoverable Under the Superfund Amendments and Reauthorization Act of 1986,”
September 30, 1986. See Chapter I references, page 40.
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)oint and several liability is based on the legal concept of
“indivisible harm.” Therefore, a PRP may be able to defend
against the application of the full extent of joint and several
liability in a particular case if it can show that the harm it caused
or for which it is responsible is divisible and reasonably capable of
apportionment. 4 Where hazardous substances are commingled
following disposal at a site, evidence that a single PRP’s
contribution caused a distinct and segregable environmental harm
is typically unavailable. This is important because the divisibility
defense requires a fact-intensive analysis, and because the
defendant bears a heavy burden of proof. The defendant must
demonstrate that the hazardous substances it sent to a site caused
a specific, separate, and distinct environmental harm from other
environmental harm at the site. 5
Determining divisibility requires the PRP search team to carefully
review the specific contribution of each PRP to the release of
hazardous substances that resulted in the contamination at the
site. A reasonable basis for such determinations should be well
documented.
“See, e.g., United States v. Monsanto, 858 F.2d 160, 17 1-72 (“While
CERCLA does not mandate joint and several liability, it permits it in cases of
indivisible harm.”); United States v. Marisol, Inc., 725 F.Supp. 833 (M.D. Pa.
1989); United States v. Ottati & Goss, Inc., 630 F.Supp. 1361 (D.N.H. 1985)
(burden on defendant to show apportionment is proper).
United States v. Western Processing Co., 734 F.Supp. 930, 942 (W.D.
Wash. 1990).
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1.2.4
Categories of CERCLA section 107(a) imposes liability on four classes of persons:
Potentially
• current owners and operators of a facility;
Responsible
Parties • former owners and operators of a facility;
• persons who arranged for treatment or disposal of
hazardous substances (commonly referred to as
“generators”); and
• transporters of hazardous substances who selected the
disposal site.
Any person who falls within the definition of one of these classes
may be held liable under CERCLA unless one of the statutory
defenses or exemptions to liability applies. (See subsections 1.2.5
and 1.2.6.)
Current Owners and Operators of a Facility
CERCLA section 107(a)(1) imposes liability on the present
owner(s) and operator(s) of a vessel or facility from which there
has been a release of a hazardous substance, even if they did not
own or operate the facility at the time of disposal of hazardous
substances. The term “owner or operator” is defined in section
10 1(20), and has been interpreted broadly by courts to include
almost any person who has an ownership interest in or the ability
to manage or control a business. The definition excludes,
however, a person who holds indicia of ownership primarily to
protect a security interest (e.g., a lender) if the person does not
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participate in the management of the facility. (See CERCLA
section 1O1(20)(A) and the discussion of secured creditors in
subsection 1.2.6 of this manual for more details.)
Courts also have imposed owner/operator liability on parent
corporations and corporate officers and personnel. In some
instances, they have applied traditional principles of corporate law
to “pierce the corporate veil” and hold such parties liable. In other
cases, they have looked to the language of CERCLA itself to find
that a parent corporation or corporate individual has exercised
sufficient control to render it an operator for purposes of CERCLA
liability. (See subsection 3.6.10 for further discussion of the
liability of parent corporations and corporate individuals.)
Former Owners and Operators of a Facility
CERCLA section 107(a)(2) imposes liability on any person who
owned or operated a facility at the time of disposal of any
hazardous substance at the facility. Thus, unlike current owners
and operators, a former owner or operator is liable only if disposal
of hazardous substances occurred while the person owned or
operated the facility. The term “disposal”, however, incorporates
the broad definition of that term under RCRA. It has been
interpreted by some courts to include releases that occur long
after the hazardous substance was initially disposed of at the
facility. 6
6 Liability for “passive migration” is determined by the specific case law of
the federal circuit where the site of the release is located, and federal circuits are
divided on this issue. See, e.g., ABB Industrial Systems Inc. v. Prime Technology,
Inc., 120 F.3d 351 (2d Cir. 1997); United States v. CDMG Realty, 96 F.3d 706 (3d
Cir. 1996); Joslyn Mfg. Co. v. Koppers Co. Inc., 40 F.3d 750 ( 5 th Cir.) (interpreting
disposal to require active human conduct); but see Nurad, Inc. v. William Hooper &
Sons Co., 966 F.2d 837 (4th Cir. 1992) (upholding CERCLA liability for passive
migration).
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For example, if Party A owned the site and disposed of hazardous
substances there during ownership and later sold the property to
Party B, both parties could be held liable. Party A could be held
liable because the disposal took place when it owned the property.
Some courts have ruled in similar cases that Party B is liable if, for
example, drums or tanks containing hazardous substances leaked
at the facility during Party B’s ownership even if Party B did not
place the drums or tanks on the property and no longer owns the
property.
Generators
CERCLA section 107(a)(3) imposes liability on a person who
arranged for disposal or treatment, or arranged with a transporter
for transport for disposal or treatment, of hazardous substances at
any facility owned or operated by another party and containing
such hazardous substances. Although the statute does not use the
term “generator,” this term is commonly used to refer to persons
who generated the hazardous substance or arranged for its
disposal or treatment. “Generators” may include corporations
that entered into disposal contracts, waste brokers, or corporate
officers who are involved in or responsible for waste disposal
activities.
A person may be held liable as a generator even if that person did
not select the disposal location. To establish generator liability,
EPA must demonstrate that an actual or threatened release of any
hazardous substance occurred at the facility, not that the
generator’s actual hazardous substance was released.
An arrangement for disposal or treatment may take a wide variety
of forms, including a conventional oral or written contract or a toll
processing agreement where disposal of hazardous substances is
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inherent in the work to be performed under the agreement. 7 The
sale of hazardous substances may constitute an arrangement for
disposal or treatment; however, the sale of a hazardous substance
as a finished product does not. 8 Whether a sale of a product
constitutes the sale of a “useful product” or an arrangement for
disposal typically is a fact-specific determination.
A generator’s liability may follow its waste from site to site. For
example, if a generator sends its waste to site A and site A’s
operator sends some of that waste to site B, the generator may be
liable for the costs of cleaning up both site A and site B.
Transporters
CERCLA section 107(a)(4) imposes liability on a person who
accepts a hazardous substance for transportation to a disposal or
7 Under the so-called “Aceto” theory of liability, a chemical manufacturer
who contracts with another company to formulate raw materials into finished
product can be liable as an “arranger for disposal” if the manufacturer retains
ownership of the hazardous substances and the formulator generated and disposed
of waste contemporaneously with formulation. United States v. Aceto Agricultural
Chemicals Corp., 872 F.2d 1373 (8th Cir. 1989). Courts have looked at a variety of
factors to determine “arranger” liability, including: “(1) whether a sale involved the
transfer of a “useful” or “waste” product; (2) whether the party intended to dispose
of a substance at the time of the transaction; (3) whether the party made the “crucial
decision” to place hazardous substances in the hands of a particular facility; (4)
whether the party had knowledge of the disposal; and (5) whether the party owned
the hazardous substances.” See, e.g., Concrete Sales and Services, Inc. v. Blue Bird
BodyCo.,21l F.3d 1333 (1 Ith Cir. 2000).
8 See, e.g. United States v. Maryland Sand, Gravel and Stone Co., 39 Env’t
Rep. Cas. 1761 (D. Md. 1994) (imposing liability where defendants transferred
toxic substances generated as by-products in their operations for which they had no
further use, even when the recipients placed some value on the waste); State of
California v. Summer del Caribe, 821 F. Supp. 574, 581 (ND. Cal. 1993) (affirming
there is no CERCLA liability where the transaction involves the sale of a useful
product, such as a new product, manufactured specifically for the purpose of sale, or
a product that remains useful for its normal purpose in its existing state).
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treatment facility or site selected by such person. The term
“transportation” is defined to include the movement of a
hazardous substance by any mode, including any stoppage in
transit which is temporary and incidental to the transportation
movement.
The key factor in establishing transporter liability is that the
transporter must have selected the disposal site. If the
transporter can demonstrate that the generator selected the site,
then the transporter is not liable.
1.2.5
Statutory Defense
to CERCLA A person identified as a potentially responsible party may claim a
statutory defense to liability based upon CERCLA section 107(b).
Liability . .
Section 107(b) provides that a party is not liable if a release was
caused solely by:
• an act of God, as defined in section 10 1(1);
• an act of war; or
• an act or omission of a third party other than an employee
or agent of the defendant or one in a contractual
relationship with the defendant (commonly referred to as
the “third party” defense).
Third Party Defense
In order to establish a third party defense under section
107(b)(3), a person has the burden of proving that the act or
omission was conducted by someone other than the person
claiming the defense, and by someone with whom that person has
no contractual relationship. In addition, the person must establish
that he: (1) exercised due care with respect to hazardous
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substances; and (2) took precautions against foreseeable acts or
omissions of the third party and any consequences thereof. The
defense is not available to a person who has actual knowledge of a
release or threatened release during his ownership and
subsequently transfers the property to another person without
disclosing the release or threatened release. In addition, the
person may not have caused or contributed to the contamination.
CERCLA section 1O1(35)(A) defines “contractual relationship” to
include land contracts, deeds, or other instruments conveying
interests in land (e.g., property owners). A contractual
relationship does not exist — and the defense still applies — if the
property was acquired after the disposal or placement of the
hazardous substances and one or more of the following
circumstances is established:
• The person had no knowledge or reason to know that there
was a release of hazardous substances at the property at
the time of acquisition and that, prior to acquisition, the
person made all appropriate inquiry into the previous
ownership and uses of the property consistent with good
commercial or customary practice.
• The person is a government entity which acquired the
facility by escheat, or through any other involuntary
transfer or acquisition, or through the exercise of eminent
domain.
• The person acquired the property by inheritance or
bequest.
This third party defense is often referred to as the “innocent
landowner” defense.
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The Small Business Liability Relief and Brownfields Revitalization
Act of 2002 (see Chapter 1 references, page 40) clarified the “all
appropriate inquiry” required regarding condition of the property.
For purchasers of residential property, CERCLA section 101(35)(B)
provides that a facility inspection and title search will be sufficient.
For all other purchasers, the determination is based upon date of
purchase. For purchases prior to May 31, 1997, CERCLA section
101(35)(B) sets forth a narrative standard directing courts to
consider a list of factors, including specialized knowledge of the
person, the obviousness of the contamination, and the relationship
of the purchase price to the property value. For purchases on or
after May 31, 1997, section 101(35)(B) incorporates the American
Society for Testing and Materials’ (ASTM) Standard Practice for
Environmental Site Assessment: Phase 1, which applies until EPA
promulgates regulations regarding all appropriate inquiry.
In addition, the amendments also require that “innocent
landowners” can only maintain this defense by complying with
certain continuing obligations. A purchaser must take reasonable
steps to stop any continuing release, to prevent any threatened
new release, and to prevent or limit any human, environmental, or
natural resource exposure to hazardous substances. All innocent
landowners must provide cooperation, assistance, and access to
persons conducting response actions at the facility, and comply
with and maintain land use restrictions and institutional controls.
1.2.6
Statutory In addition to the statutory defenses to CERCLA liability, CERCLA
provides statutory exemptions and protections from liability for
Exemptions and
certain parties.
Protections from
CERCLA Liability
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De Micromis Parties
CERCLA section 107(o) provides a qualified statutory exemption
from liability for response costs for de micromis generators and
transporters where: (1) the total amount of material containing
hazardous substances contributed by the party to a site was less
than 110 gallons of liquid materials or less than 200 pounds of
solid materials; (2) the site is listed on the NPL; and (3) all or part
of the party’s disposal, treatment, or transport occurred before
April 1, 2001.
The exemption does not apply, however, if the President
determines that: (1) the person sent materials that contributed or
could contribute significantly, either individually or in the
aggregate, to the cost of the response action or natural resource
restoration; (2) the person has failed to comply with an
information request or administrative subpoena; (3) the person
has impeded, through action or inaction, a response action or
natural resource restoration; or (4) the person has been convicted
of a criminal violation for conduct related to the exemption.
Municipal Solid Waste Parties
Section 107(p) conditionally exempts three categories of parties
from liability for response costs as a generator under section
107(a)(3):
• owners, operators, or lessees of residential property;
• a business entity (including a parent, subsidiary, or affiliate
of the entity) that, during the three years preceding written
notice of its potential liability, employed on average not
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more than 100 full-time individuals, or the equivalent
thereof, and is a small business concern from which was
generated all of the municipal solid waste (MSW)
attributable to the entity with respect to the facility; and
an organization described in section 501(c)(3) of the
Internal Revenue Code of 1986 (see Chapter 1 references,
page 40) and exempt from tax under section 50 1(a) of the
Code that during the tax year preceding written notice of
liability employed 100 or fewer paid individuals at the
location from which all MSW was generated.
The conditional exemption does not apply to parties liable as
owners or operators under section 107(a)(1) or (2) or as
transporters under section 107(a)(4).
Contiguous Property Owners
CERCLA section 107(q) protects from owner or operator liability
persons that own land contaminated solely by a release from
contiguous property, or similarly situated property, owned by
someone else, if the owner:
• is not a PRP or affiliated with a PRP;
did not cause, contribute, or consent to the release of
hazardous substances; and
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• conducts “all appropriate inquiry” prior to purchase and
demonstrates that it did not know or have reason to know
of contamination. (See subsection 1.2.5 of this manual for
a discussion of the “all appropriate inquiry” requirement.)
In order to maintain the liability protection, the owner must:
• take reasonable steps to stop continuing releases, prevent
threatened future releases, and prevent or limit human,
environmental, or natural resources exposure to hazardous
substance release;
• provide cooperation, assistance, and access;
• comply with and maintain land use restrictions and
institutional controls;
• comply with CERCLA information requests and
administrative subpoenas; and
• provide legally required notices.
Bona Fide Prospective Purchaser
CERCLA section 107(r) protects a “bona fide prospective
purchaser” (BFPP) whose potential liability is based solely on the
purchaser’s being an owner or operator of a facility so long as the
purchaser does not impede the performance of a CERCLA response
action. Section 101(40) defines a BFPP as a person, or tenant of
that person, who acquires ownership of a facility after January 11,
2002, and:
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• establishes that disposal at the facility occurred prior to
acquisition;
• is not a PRP or affiliated with a PRP;
• made all appropriate inquiry into previous ownership and
uses of the facility in accordance with generally accepted
practices and new standards contained in section
101(35)(B);
• takes reasonable steps to stop any continuing releases,
prevent any threatened future releases, and prevent or
limit human, environmental, or natural resource exposure
to any previously released hazardous substance; and
• provides cooperation, assistance, and access, complies with
and maintains land use restrictions and institutional
controls, complies with information requests and
administrative subpoenas, and provides legally required
notices.
A critical distinction between the BFPP provision and the innocent
landowner and contiguous property owner provisions Is that the
BFPP can purchase with knowledge of the contamination and still
have CERCLA liability protection. Section 107(r) provides,
however, that a BFPP may be subject to a “windfall lien” for
unrecovered response costs incurred by the United States at a
facility where the response action increases the fair market value
of the facility. The lien is limited to the lesser of the increase in
the fair market value attributable to EPA’s response action or the
unrecovered response costs.
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On July 16, 2003, EPA and DOJ issued an interim enforcement
discretion policy entitled Interim Enforcement Discretion Policy
Concerning “Windfall Liens” Under Section 107(r) of CERCLA. The
“Windfall Lien” policy explains when EPA generally would, and
would not, seek compensation for increasing a property’s market
value through a Superfund response action. Under new Section
107(r) of CERCLA, added by the recent Brownfields Amendments,
bona fide prospective purchasers are not liable as owner/operators
for CERCLA response costs. However, the property they acquire
may be subject to a windfall lien if an EPA response action has
increased the fair market value of the property. The interim policy
explains that, absent a Superfund response action at a site, the
United States has no windfall lien on that property. For properties
that have been the subject of an EPA response action, the policy:
sets forth factors that may lead EPA and DOJ to assert a windfall
lien and provides examples of a number of situations where EPA
will generally not pursue a windfall lien; describes EPA’s and DOJ’s
general approach to settling windfall liens; and discusses letters
and agreements that EPA may provide to prospective purchasers
to address any windfall lien concerns. See Chapter 1 references,
page 40 for copies of the guidance, attachments, and a frequently
asked questions document.
Scrap Rocycl.rs
The Superfund Recycling Equity Act (SREA) (see Chapter 1
references, page 40) signed into law on November 29, 1999, was
passed as part of the Omnibus Appropriations Bill and is codified
as an amendment to CERCLA at 42 U.S.C. 9627 and incorporated
into CERCLA as section 127. This amendment exempts from the
generator and transporter liability sections of CERCLA certain
generators and transporters who “arranged for recycling of
recyclable materials.” Owners and operators of sites are ineligible
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for the exemption, as are generators and transporters of non-
recyclable materials or generators and transporters of recyclable
materials that fail to meet the criteria necessary for the
exemption.
A PRP’s liability should be carefully examined before determining
the applicability of SREA. If the region determines that a party is
a PRP, then the region may evaluate whether the PRP is exempt
under SREA. Regions should not presume a party’s eligibility for
the exemption absent either a demonstration of proof by the party
that it was recycling consistent with section 127 or other site-
specific information that suggests that the party is eligible for the
exemption.
Recyclable materials defined under SREA include scrap paper,
scrap plastic, scrap glass, scrap textiles, scrap rubber (other than
whole tires), scrap metal, spent lead-acid, spent nickel-cadmium
batteries, and other spent batteries. (See CERCLA section 127 for
further details on SREA.)
Secured Creditors
CERCLA section 1O1(20)(A) and (E) exempts from owner/operator
liability any person who, without participating in the management
of a facility, holds indicia of ownership primarily to protect that
person’s security interest in the facility. Holding a security interest
means having a legal claim of ownership in order to secure a loan,
equipment, or other debt. This exemption protects from CERCLA
section 107 owner/operator liability those persons, such as private
and governmental lending institutions (e.g., banks), who maintain
a right of ownership In, or guarantee loans for, facilities that
become contaminated with hazardous substances.
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Under CERCLA section 1O1(20)(F), which was added to CERCLA by
amendment in 1996, a lender “participates in management” and
will not be protected by the secured creditor exemption if it either:
• exercises decision making control over environmental
compliance related to the facility, such that the lender has
undertaken responsibility for hazardous substance handling
or disposal practices; or
• exercises control at a level comparable to that of a
manager of the facility, such that the lender has assumed
or manifested responsibility with respect to (1) day-to-day
decision-making regarding environmental compliance, or
(2) all, or substantially all, of the operational (as opposed
to financial or administrative) functions of the facility other
than environmental compliance.
The term “participate in management” does not include certain
activities (provided those activities do not rise to the level of
participating in management as defined in CERCLA section
1O1(20)(F)), such as:
• inspecting the facility;
• requiring a response action or other lawful means to
address a release or threatened release;
• conducting a response action under CERCLA section
107(d)(1) or under the direction of an on-scene coordinator
(OSC);
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• providing financial or advisory support toward an effort to
prevent or cure default; or
• restructuring or renegotiating the terms of the security
interest.
With respect to post-foreclosure activities, a lender that did not
participate in management prior to foreclosure, did not contribute
to or cause a release, and seeks to divest itself of the facility at the
earliest practicable, commercially reasonable time, on
commercially reasonable terms, is not an “owner or operator” if it:
• sells, re-leases (in the case of a lease-finance transaction),
or liquidates the facility;
• maintains business activities or winds up operations;
• undertakes a response action under CERCLA section
107(d)(1) or under the direction of an OSC; or
• takes any other measure to preserve, protect, or prepare
the facility for sale or disposition.
Fiduciaries
CERCLA section 107(n) limits the CERCLA liability of fiduciaries.
The term “fiduciary” means a person acting for the benefit of
another party as a bona fide trustee, executor, or administrator,
among other things. It does not include a person who either:
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• acts as a fiduciary with respect to a for-profit trust or other
for-profit fiduciary estate, unless the trust or estate was
created because of the incapacity of a natural person, or as
part of, or to facilitate, an estate plan; or
• acquires ownership or control of a facility for the objective
purpose of avoiding liability of that person or another
person.
Under CERCLA section 107(n), fiduciary liability under any
provision of CERCLA cannot exceed the assets held in the fiduciary
capacity. In addition, a fiduciary will not be liable in its personal
capacity for certain actions, such as:
• undertaking or requiring another person to undertake any
lawful means of addressing a release of a hazardous
substance;
• enforcing environmental compliance terms of the fiduciary
agreement; or
• administering a facility that was contaminated before the
fiduciary relationship began.
The liability limitation described above does not limit the liability of
a fiduciary whose negligence causes or contributes to a release or
threatened release.
Service Station Dealers
Service station dealers may be eligible for an exemption from
liability as a generator or transporter under CERCLA section
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107(a)(3) or (a)(4) if the dealer accepted from the public used oil
for recycling which is:
• not mixed with any other hazardous substance; and
• stored, treated, transported or otherwise managed in
compliance with regulations or standards promulgated
pursuant to section 3014 of the Solid Waste Disposal Act
and other applicable authorities.
The exemption applies only to recycling transactions that occur
after the effective date of EPA’s used oil regulations (March 8,
1993). (See Chapter 1 references, page 40.) A service station
dealer still may be held liable under CERCLA section 107(a)(1) and
(2) as an owner or operator.
State and Local Governments
CERCLA section 107(d)(2) provides that, except for gross
negligence or intentional misconduct, state and local governments
are not liable for costs or damages resulting from an emergency
response to a hazardous substance release or threatened release.
Under CERCLA section 107(d)(1), a person rendering care or
assistance in accordance with the NCP, including but not limited to
state and local governments, cannot be held liable under CERCLA
for costs or damages resulting from such care unless the care or
assistance is rendered in a negligent manner. Such a person can
be liable for costs or damages as the result of his negligence.
CERCLA section 101(20)(A) exempts from owner/operator liability
units of state and local government that “involuntarily” acquire
CERCLA facilities, provided they did not cause or contribute to the
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contamination. Governmental entities may also be protected from
liability resulting from involuntary acquisition by the third party
defense of CERCLA section 107(b)(3), as discussed in subsection
1.2.5 of this manual. Examples of involuntary acquisition include
those made by a government entity that is:
• acquiring property following abandonment or tax
delinquency;
• acting as a conservator or receiver pursuant to a clear and
direct statutory mandate or regulatory authority (such as
acquiring the security interests or properties of failed
private lending or depository institutions);
• undertaking foreclosure or its equivalent while
administering a governmental loan, loan guarantee, or loan
insurance program;or
• acting pursuant to seizure or forfeiture authority.
Federally Authorized Permittees
Section 107(j) excludes from CERCLA liability response costs
resulting from a “federally permitted release.” Although EPA has
full authority under CERCLA to respond to federally permitted
releases, the permittee is not liable for cleanup costs resulting
from such releases. CERCLA section 101(10) defines releases that
qualify as federally permitted releases (e.g., the discharge of
pollutants in compliance with a National Pollutant Discharge
Elimination System permit under the Clean Water Act).
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EPA’s
Discretionary
Policies
Section 107(i) excludes from CERCLA liability response costs or
damages resulting from the application of a pesticide product
registered under the Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA). (See Chapter 1 references, page 40.)
The Agency may exercise its discretion in deciding whether to
pursue certain parties who fall within a category of liable parties
under section 107(a). EPA has issued several policies concerning
the exercise of its enforcement discretion. These policies, which
are described below, are discretionary and therefore not legally
binding on any party, including EPA. When identifying and
classifying the PRPs at a site, the Agency’s discretionary
enforcement policies and guidance should be considered. These
include (but are not limited to):
De Micromis Parties
In November 2002, EPA and DO) jointly issued the Revised
Settlement Policy and Contribution Waiver Language Regarding
Exempt De Micromis and Non-Exempt De Micromis Parties
(November 6, 2002). (See Chapter 1 references, page 41.) As
discussed above, CERCLA section 107(o) provides a statutory
exemption for certain de micromis parties. This settlement policy
addresses the United States’ position regarding those parties that
fall within the statutory definition of de micromis (referred to
herein as “exempt de micromis parties”), and those parties that
fall outside the statutory definition, but who may be deserving of
similar treatment based on case-specific factors (referred to herein
as “non-exempt de micromis parties”). As a matter of national
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policy, EPA intends to use its enforcement discretion, as
necessary, to achieve settlements that provide appropriate relief
for those non-exempt de micromis parties that are being sued in
contribution or threatened with a suit by other responsible parties.
Municipal Solid Waste Parties
In 1989, EPA issued the Interim Policy on CERCLA Settlements
Involving Municipalities or Municipal Wastes (December 12, 1989)
(hereinafter “1989 MSW Policy”). (See Appendix A.) The 1989
MSW Policy sets forth the criteria by which EPA generally
determines whether to exercise enforcement discretion to pursue
MSW generators or transporters as PRPs under CERCLA. The 1989
MSW Policy provides that EPA generally will not identify a
generator or transporter of MSW as a PRP unless there is site-
specific evidence that the MSW disposed of by that party contained
hazardous substances derived from a commercial, institutional, or
industrial process or activity. The 1989 MSW Policy also addresses
certain provisions that may be appropriate in settlements with
municipal owners or operators.
Building upon the 1989 MSW Policy, EPA issued its Policy for
Municipality and Municipal Solid Waste CERCLA Settlements at NPL
Co-Disposal Sites (February 5, 1998) (hereinafter “1998 MSW
Policy”). (See Chapter 1 references, page 41.) The 1998 MSW
Policy states that EPA will continue its policy to generally not
identify generators and transporters of MSW as PRPs at NPL sites.
In an effort to reduce contribution litigation by third parties, the
1998 MSW Policy also identifies a methodology for settlements
with generators and transporters of MSW at NPL sites who request
a settlement with the United States. Finally, the 1998 MSW Policy
identifies a presumptive settlement range for municipal owners
and operators of co-disposal sites on the NPL.
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As discussed in subsection 1.2.6, CERCLA section 107 was
amended in 2002 to provide an exemption from liability for
response costs to certain residential, small business, and non-
profit generators of MSW at sites on the NPL. In August 2003, EPA
and DOJ jointly issued the Interim Guidance on the Municipal Solid
Waste Exemption Under CERCLA § 107(p) (August 20, 2003)
(hereinafter the “2003 Interim Guidance”). (See Chapter 1
references, page 41.) The 2003 Interim Guidance discusses the
statutory exemption and identifies some factors to be considered
in the exercise of enforcement discretion under the exemption. In
addition, the 2003 Interim Guidance provides that the 1989 and
1998 MSW policies remain in effect and should be applied where
appropriate.
Bona Fide Prospective Purchasers
Since 1989, EPA has negotiated agreements that provide a
covenant not to sue for certain prospective purchasers of
contaminated property prior to their acquisition of the property, in
order to resolve the potential liability due to ownership of such
property. These agreements are known as prospective purchaser
agreements (PPAs). As discussed above, CERCLA limits the
liability of persons who qualify as bona fide prospective purchasers
(BFPP5). In May 2002, EPA issued a memorandum titled Bona
Fide Prospective Purchasers and the New Amendments (May 31,
2002). (See Chapter 1 references, page 41.) In this
memorandum, EPA states that, in most cases, the Brownfields
Amendments make PPA5 from the federal government
unnecessary. The memorandum describes when, primarily
because of significant public benefit, EPA will consider providing a
prospective purchaser with a covenant not to sue.
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Contiguous Property Owner
In 1995, EPA issued its Policy Towards Owners of Property
Containing Contaminated Aquifers (May 24, 1995). (See Chapter
1 references, page 41.) Although the 1995 policy is similar to the
exemption in favor of contiguous property owners in CERCLA
section 107(q) in many respects, the 1995 policy is broader, and
may apply to parties that do not qualify under the statutory
exemption. Under the 1995 policy, where hazardous substances
come to be located on or in a property solely as the result of
subsurface migration in an aquifer from a source or sources other
than the affected property, EPA will not take an enforcement
action against the owner of such property to require the
performance of response actions or the payment of response
costs. The following conditions apply:
• The landowner did not cause, contribute to, or exacerbate
the release or threat of release of any hazardous
substances through any act or omission. The failure to
take affirmative steps to mitigate or address groundwater
contamination, such as conducting groundwater
investigations or installing groundwater remediation
systems, will not, in the absence of exceptional
circumstances, constitute an omission by the landowner
within the meaning of this condition.
• The person who caused the release is not an agent or
employee of the landowner, and was not in a direct or
indirect contractual relationship with the landowner. In
cases where the landowner acquired the property, directly
or indirectly, from a person who caused the original
release, application of the policy will require an analysis of
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whether, at the time the property was acquired, the landowner
knew or had reason to know of the disposal of hazardous
substances that gave rise to the contamination in the
aquifer.
• There is no alternative basis for the landowner’s liability for
the contaminated aquifer, such as liability as a generator or
transporter under CERCLA section 107(a)(3) or (4), or
liability as an owner by reason of the existence of a source
of contamination on the landowner’s property other than
the contamination that migrated in an aquifer from a
source outside the property.
Residential Homeowner
In 1991, EPA issued its Policy Toward Owners of Residential
Property at Superfund Sites (July 3, 1991). (See Chapter 1
references, page 42.) Under this policy, EPA will not require
residential owners of property to undertake response actions or
pay response costs unless the residential homeowner’s activities
lead to a release or threatened release of hazardous substances
resulting in a response action. The policy applies to properties
that are owned and used exclusively for single-family residences of
one to four units. Furthermore, the owner’s knowledge of the
presence of contamination on the property at the time of purchase
or sale does not affect this discretionary policy. However, if the
residential owner’s activities lead to a release or threatened
release resulting in a response action, the enforcement policy will
not apply. The policy also does not apply if the owner of the
property refuses to provide access to the residential property when
requested or interferes with response activities conducted on the
residential property.
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1.3
When PRP5 have been identified, EPA’S general policy is to notify
PRP them of their potential liability, advise them of the intended
Notification of response action, and afford them the opportunity to pay for or’
Liability conduct response actions. Where circumstances require, EPA may
issue concurrently to each PRP a notice of potential liability
(general notice letter) and a notice of opportunity to negotiate to
conduct the response action (special notice letter). EPA uses
different notice letters for different recipients, each with a different
tone as well as content. These include the general notice letter
(GNL), special notice letter (SNL) for RI/FS, SNL for remedial
design and remedial action (RD/RA), notice of decision not to use
an SNL, combined GNL/104(e) letter, combined GNL/demand
letter, informational notice letter to local governments, first point
of contact letter with de minimis PRPs, and model comfort letter to
property owners.
1.3.1
General Notice A GNL is a notice that informs PRPs of their potential liability for
Letters past and future response costs. GNLS generally contain the
following information:
• notification of potential liability under sections 106 and
107(a) of CERCLA, including notification that;
• CERCLA section 107 authorizes the Agency to
initiate cost recovery actions to recover all costs not
inconsistent with the NCP incurred in responding to
the release or threatened release of hazardous
substances,
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CERCLA section 106 authorizes the Agency to issue
administrative orders or take judicial action
compelling the PRP to implement the response
selected by EPA to abate an imminent and
substantial danger caused by the release or
threatened release of hazardous substances, and
• The Agency encourages PRPs to voluntarily perform
or finance those response activities that EPA
determines to be necessary at the site,
• to the extent practical, information that supports the PRP
designation, such as the dates of ownership of real site
property or the period of time that the company operated
the facility;
• information about the general opportunity to discuss any
selected response action and opportunities to undertake the
selected response action, including;
• discussion of any planned response measures,
• the merits of forming a PRP steering committee,
• the deadline for the PRPs to respond, in writing,
indicating their willingness to participate in the
response action at the site, and
• the name and phone number of the EPA contact for
PRPs or their attorneys,
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• information about development of the administrative record
pursuant to the NCP; and
• a demand for reimbursement of EPA costs.
General notice letters have frequently encouraged PRPs to
undertake response actions. Although EPA is not required to do
so, providing as much information as possible to PRPs concurrently
with the GNL often yields the best results, including identification
of additional PRPs, better responses to 104(e) information
requests, and, ultimately, more productive negotiations with PRPs
for performance of the work under a settlement agreement. 9
1.3.2
The SNL, authorized under CERCLA section 122(e)(1), is a written
Special Notice
notice to PRPs that triggers an enforcement moratorium -- a
L.tters .
period during which no response work is performed at the site and
EPA and the PRPs may negotiate a settlement concerning response
actions at the site. The SNL contains the following:
• information about the Agency’s discretionary authority
under section 122(e) of CERCLA to formally negotiate the
terms of settlements pursuant to special notice procedures
if EPA determines that such procedures would facilitate an
agreement and would expedite a response action at the
site;
9 The OSRE memorandum Revised Final Guidance on Disseminating
EPA s SBREFA Information Sheet to Businesses at the Time of Enforcement
Activity (August 31, 1999) (see Chapter 1 references, page 42) states that EPA will
notify small businesses of their right to comment on regulatory enforcement
activities when EPA makes its Initial enforcement contact” with the business.
Under CERCLA, the initial enforcement contact is typically a general or special
notice letter. See Chapter 1 references, page 42 for the Small Business Fact Sheet.
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o information on the recipient’s potential liability;
• conditions of the enforcement moratorium;
• description of a good faith offer;
• description of future response actions, if known;
• statement of work to be performed;
• additional information, including information on additional
PRPs, site fact sheets, volumetric ranking if available;
• demand for past costs; and
• for RD/RA and non-time-critical removal SNLs, a statement
whether the site is eligible for orphan share compensation
under the Orphan Share Policy (June 3, 1996) (see Chapter
1 references, page 42) and, if so, the maximum amount
appropriate for compensation.
EPA may, at its discretion, choose not to follow special notice
procedures. It may instead send a letter to PRPs stating that it is
not going to use special notice procedures because, for instance,
negotiations are already underway, and outlining EPA ’s plans for
the negotiations. Due to the urgency of emergency and time-
critical removals, they do not follow special notice procedures. For
procedures applicable to them, refer to the Superfund Removal
Procedures Removal Enforcement Guidance for On-Scene
Coordinators (April 1992). The volume referenced is one of a ten-
volume series of guidance documents collectively titled Superfund
Removal Procedures. (See Chapter 1 references, page 42.)
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Types of
Settlements
EPA and the PRPs set forth settlements in legal documents that
describe the requirements of the response action. If the response
action is an RI/FS, RD, or RA, EPA and the PRPs usually use an
administrative order on consent (AOC). An AOC is a legally
binding administrative order that EPA and the PRPs agree to and
sign. A consent decree (CD) is similar to an AOC in that
negotiations are bilateral; however, a CD is a judicial action that
must be approved by DOJ, filed in federal court, and approved by
a judge before it becomes final.
If a settlement between EPA and the PRPs includes a remedial
action, CERCLA requires that the settlement take the form of a CD.
AOCs are the preferred settlement mechanism for RIIFSs arid
removals. The above settlement devices are addressed In more
detail in Chapters V and VIII of EPA’s Enforcement Project
Management Handbook and in the Addendum to the Interim
CERCLA Settlement Policy. (See Chapter 1 references, page 42.)
A number of activities take place in preparation for RD/RA
negotiations, including substantial completion of the PRP search.
Thus it is important that sufficient attention be given to the PRP
search before the RD/RA negotiations phase commences. PRP
search activities may be initiated at the preliminary assessment
and site investigation (PA/SI) phase of the enforcement timeline.
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Chapter 1 References
Name Section Location
Comprehensive Environmental 1.1 42 U.S.C. § 9601 et seq.
Response, Compensation, and http ://uscode.house.gov/DOWNLOAD/
Liability Act of 1980, as 42C103.DOC
amended by the Superfund
Amendments and
Reauthorization Act of 1986
National Oil and Hazardous 1.1.1 40 C.F.R. Part 300
Substances Pollution http ://www.access.g p0 .gov/nara/cfr/
Contingency Plan waisidx_02/4Ocfr300_02.html
Oil Pollution Act of 1990 1.1.1 33 U.S.C. § 2701 et seq.
http://www.epa.gov/oilspill/lawsregs. htm
Clean Air Act 1.2.1 42 U.S.C. § 7401 et seq.
http://www.epa .gov/air/oaq_caa. html
Clean Water Act 1.2.1 33 U.S.C. § 1251 et seq.
http://www.epa .gov/oilspill/lawsregs. htm
Toxic Substances Control Act 1.2.1 15 U.S.C. § 2601 et seq.
http ://www.access.g po.gov/uscode/
title l5/chapter53_.html
Resource Conservation and 1.2.1 42 U.S.C. § 6901 et seq.
Recovery Act http ://www. epa .gov/epaoswer/osw/
laws-reg.htm
CERCLA Hazardous Substances 1.2.1 40 C.F.R. Part 302
http ://www. access.g 0 .gov/nara/cfr/
waisidx _ 02/40cfr302 _ 02. html
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Chanter I References
Name Section Location
Comptroller Policy 1.2.1 http ://www.epa .gov/ ocfo/fi nstatement/
Announcement 87-17, Interest superfund/int_rate. htm
Rates for Debts Recoverable
Under the Superfund
Amendments and
Reauthorization Act of 1986
(September 30, 1986)
Small Business Liability Relief 1.2.5 Public Law 107-118 (H.R. 2869)
and Brownfields Revitalization
Act of 2002 http://www.epa.gov/brownfields/pdf/
hr2869.pdf
Internal Revenue Code of 1986 1.2.6 26 U.S.C.
http ://www.access.gpo.gov/uscode/
uscmain.html
Interim Enforcement Discretion 1.2.6 http://www.epa .gov/compliance/
Policy Concerning “Windfall resources/policies/cleanup/superfund
Liens” Under Section 107(r) of
CERCLA (July 16, 2003)
Superfund Recycling Equity Act 1.2.6 42 U.S.C. § 9627
http ://www.access.gpo.gov/uscode/
uscmain.html
Used Oil Regulations 1.2.6 57 Federal Register 41,612
(September 10, 1992)
Federal Insecticide, Fungicide, 1.2.6 7 U.S.C. § 136 et seq.
and Rodenticide Act http ://www .epa .gov/opptsfrs/home/
rules.htm
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Chapter 1 References
Name Section Location
Revised Settlement Policy and 1.2.7 http://www.epa.gov/compliance/
Contribution Waiver Language resou rces/policies/cleanup/su perfund/
Regarding Exempt De Micromis wv-exmpt-dmicro-mem. pdf
and Non-Exempt De Micromis
Parties (November 6, 2002)
Interim Policy on CERCLA 1.2.7 Appendix A
Settlements Involving
Municipalities or Munictpal
Wastes (December 12, 1989)
Policy for Municipality and 1.2.7 http://www.epa.gov/compliance/
Municipal Solid Waste CERCLA resources/policies/cleanup/superfund/
Settlements at NPL Co-Disposal munic-solwst-mem.pdf
Sites (February 5, 1998)
Interim Guidance on the 1.2.7 http ://www.epa .gov/compliance/
Municipal Solid Waste resources/policies/cleanup/superfund/
Exemption Under CERCLA § interim-msw-exempt. pdf
107(p) (August 20, 2003)
Bona Fide Prospective 1.2.7 http://www.epa.gov/compliance/
Purchasers and the New resources/policies/cleanup/superfund/
Amendments bonf-pp-cercla-mem. pdf
(May 31, 2002)
Policy Toward Owners of 1.2.7 http://www.epa.gov/compliance/
Property Containing resou rces/pol icies/cleanup/superfund/
Contaminated Aquifers contamin-aqui-rpt. pdf
(May 24,1995)
Chapter 1. Overview of CERCLA and PRP Searches
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Policy Towards Owners of 1.2.7
Residential Property at
Superfund Sites
(July 3, 1991)
Revised Final Guidance on
Disseminating EPA s SBREFA
Information Sheet to
Businesses at the Time of
Enforcement Activity
(August 31, 1999)
Small Business Fact Sheet 1.3.1
Orphan Share Policy 1.3.2
(June 3, 1996)
Superfund Removal Procedures 1.3.2
Removal Enforcement
Guidance for On-Scene
Coordinators (April 1992)
Enforcement Project 1.3.3
Management Handbook
Addendum to the Interim 1.3.3
CERCLA Settlement Policy
Issued on December 5, 1984
(September 30, 1997)
http://www.epa.gov/compliance/
resources/policies/cleanu p/su perfu nd/
policy-owner-rpt. pdf
http://www.epa.gov/compliance/
resou rces/policies/civil/sbrefa/ index. html
http ://www.epa.gov/compliance/
incentives/smallbusiness/index. html
http ://www.epa.gov/compliance/
resources/policies/cleanu p/superfund/
orphan-share-rpt.pdf
EPA Publication 9360.3-06
http://www. ntis.gov/products/
epasu per. htm
http ://intranet.epa .gov/oeca/osre/hbk-
pdf/index. html
http ://www.epa.gov/compliance/
resources! policies/cleanu p/superfund/
adden-settle-mem. pdf
PRP Search Manual
SeDtember 20’
ChaDter I References
Name Section Location
1.3.1
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2.0 PRP Search Planning Overview 43
2.1 Roles and Responsibilities
2.1.1 PRP Search Team
2.1.2 Opportunities for PRP Input to the Search
2.2 Site Management Plan
2.3 PRP Search Plan 68
2.3.1 Timing and Duration 71
2.3.2 Streamlining Considerations 80
2.4 PRP Search Tasks 82
2.5 Document Filing and Retention and Release 91
2.5.1 Document Management 91
2.5.2 CERCLIS/WasteLAN 92
References
•1
r
46
46
54
68
94
Chapter 2: PRP Search Planning Overview

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PRP Search Manual
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The primary purpose of the PRP search is to identify parties who
may be liable under CERCLA. The PRP search is also designed to
gather information establishing, for each PRP, the elements of
liability discussed in the previous chapter. In addition, PRP
searches can accomplish several other objectives, including:
• furthering site characterization by providing information
on hazardous substances used, site boundaries, disposal
practices, and locations for conducting sampling
activities;
• providing information for;
• notice letters and information release, and
• a waste-in list in order to do a volumetric ranking,
• assessing the appropriateness of possible settlements and
potential litigation risks in light of the PRP’s liability,
ability to pay response costs, and statutory factors such
as de minimis settlement eligibility, mixed funding,
orphan share compensation, and divisible harm;
• identifying whether wastes are hazardous wastes in order
to assess potential applicable or relevant and appropriate
requirements (ARARs) (see Chapter 2 references, page
94);and
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providing names of PRPs to;
• ensure that the Agency can notify PRPs of the
proposed plan (for remedial action), and
• be included in community relations mailing lists.
Effective PRP searches are fundamental to the Agency’s
enforcement strategy of obtaining increased PRP involvement in
conducting response activities. PRP searches initiated
concurrently with the PA/SI can often yield information that can
be used to better characterize the site, involve identified PRPs in
finding other PRPs, and provide for earlier identification of de
minimis, de micromis, and insolvent or defunct parties. Effective
communication between site assessment and PRP search
personnel can save sampling and characterization expenses and
expedite the remedial process by identifying early action
opportunities. A thorough PRP search ultimately should result in
a faster, more efficient, and fairer settlement with PRPs, leading
to a more timely cleanup of the site.
Where feasible and appropriate, EPA may share information with
PRPs during the PRP search. EPA and PRPs may have a shared
interest in the outcome of PRP searches, and cooperation may be
mutually beneficial. Such cooperation may save Agency
resources and assist in developing a good working relationship
between PRP5 and EPA. For instance, when EPA establishes
early communication with PRPs by making available factual site
information to help PRPs understand why they received an
information request from the Agency, a more productive working
relationship may develop. It is likely that the information
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provided to EPA in response to the information request will be of
better quality and thus may reduce the number of followup
information requests. (See section 2.4 for further details on
releasing information.)
Several themes that guide the Superfund program have
increased the importance of information exchange among
stakeholders. These include the focus on accelerating cleanups
and conducting them in a more efficient manner; “enforcement
first,” which strives to increase PRP involvement in site response
actions; and administrative improvements to the Superfund
program, which include orphan share compensation and the use
of third party neutrals to assist with information gathering and
exchange.
Initiating community involvement activities as early as possible
can also reap many benefits, including information on additional
PRPs. Areas adjacent to most Superfund sites often contain a
large number of residents who may have lived in the area for
quite some time. Many of these residents have specific
knowledge concerning the site and are usually very willing to
discuss their observations. The local community should be
routinely considered a potential source of information.
Achieving the Agency s goals of accelerating cleanups, Increasing
PRP involvement in response actions, and making settlements
with PRPs fairer requires careful and coordinated planning of the
PRP search. This planning process involves identifying key
personnel involved in the PRP search, outlining their roles and
responsibilities, determining timing and duration of PRP search
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2.1
Roles and
PRP Search Manua’ -
September 20W
activities, and identifying tasks to be performed. The PRP search
planning process should be a team effort. The PRP search plan
ought to have been fully implemented before RD/RA negotiations
commence.
Responsibilities
2.1.1
PRP Search Team
A regional person is generally assigned lead responsibility for
overseeing each site-specific PRP search. Regions often task
contractors to perform certain PRP search tasks to the extent
that the tasks are not considered inherently governmental
functions. Each of EPA s regional offices has its own unique
structure in place for performing PRP searches. However, some
general descriptions of key players and responsibilities cut across
regional variations.
Management Team
In the past several years, there has been increased planning,
coordination, and integration among remedial, site assessment,
and removal staff, and increased dedication of resources to the
“front end” of the Superfund timeline, i.e., the PA/SI phase. In
some regions, this strategy has been facilitated by a standing
management team of regional EPA decision makers. The
purpose of such a team is to ensure appropriate and effective
coordination, communication, and integration of Superfund
responses, and adequate personnel, funds, and decision-making
processes to accelerate site responses. With respect to PRP
searches, management will generally take PRP search
information into consideration when establishing priorities and
direction for the site response. Although the management team
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is not involved in the day-to-day management of the PRP search,
it may request specific information about PRPs to determine the
appropriate enforcement response, potential dollar needs for
orphan share compensation, etc. Furthermore, it can play an
important role in determining the appropriate sites to “front
load” with resources for the PRP search.
PRP Search Manager
Some regions designate remedial project managers (RPMs) to
oversee contractor performance of a PRP search. The search is
done though a work assignment under an EPA enforcement
support contract or interagency agreement with a sister agency.
Other regions have organized PRP search sections devoted solely
to performing PRP searches, using an appropriate combination of
RPMs, OSCs, civil investigators (CIs), case developers,
enforcement specialists, enforcement project managers, cost
recovery specialists, and environmental protection specialists to
manage PRP searches. The person designated as the PRP search
manager for a particular site should ensure that she works
closely with the attorney assigned to the site and with any other
staff who may be participating in the PRP search. It is the
responsibility of the PRP search manager to ensure that the
following tasks are performed, as necessary and appropriate:
• establish PRP search priorities;
• establish PRP search strategy;
• develop PRP search work assignments, budgets, and
schedules;
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• manage contractor-conducted search tasks;
• define the scope of the search;
• review baseline, interim, and final contractor deliverables;
• introduce the contractor to state and local government
contacts, as needed;
• issue information request, general notice, and special
notice letters;
• ensure followup on all tasks necessary for conducting a
complete search;
• implement quality assurance and quality control (QA/QC)
procedures to ensure the accuracy of data gathered
during the search;
• ensure that adequate information is gathered for special
notice letters;
• ensure that adequate evidence of a PRP’s liability and
ability to pay is gathered; and
• ensure that the universe of PRPs is given an opportunity
to provide input into the completeness of the Agency’s
PRP search efforts.
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Remedial Project Manager
The RPM is the Agency official designated to coordinate, monitor,
and direct remedial and certain other response activities at NPL
sites. It is imperative that the RPM understand the Agency’s
policies and procedures for completing a thorough PRP search,
regardless of whether the RPM is involved in performing it.
Understanding the issues and tasks involved in the PRP search
will be necessary when working with the PRPs during the RI/FS,
engineering evaluation and cost analysis (EE/CA), or RD/RA
negotiations. The RPM may serve as work assignment manager
on a PRP search or assist other Agency personnel performing or
overseeing the search.
One RPM responsibility is to oversee the PRPs’ performance of
response activities. Once PRPs have agreed to perform response
actions at a site, the RPM is responsible for ensuring that the
studies or cleanup activities are performed correctly and in
accordance with the AOC or CD, CERCLA, the NCP, and relevant
policy and guidance. RPMS are extensively involved with the
PRPs during response actions, so it is very important that they
play a prominent role in planning and conducting baseline and
followup PRP search activities.
On-Scene Coordinator
The OSC is the Agency official designated to coordinate, monitor,
and direct removal actions. However, at sites where remedial
activity is ongoing, the RPM may play a key role in securing and
overseeing PRP removal response. OSCs, like RPMs, need to
understand the PRP search process whether or not they are
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actively involved in the search itself. The nature and extent of
an OSC’s involvement in PRP search efforts will depend on the
nature of the removal and urgency of responding to the release
or threat of release. In addition to the PRP search manager
tasks already identified, see subsection 2.3.1 for other PRP
search-related tasks during removal actions.
Civil Investigator
The CI typically performs specialized PRP search tasks such as
interviews with private parties and specialized investigative work
related to waste disposal, PRP identification, etc. CIs may assist
case attorneys in preparing CERCLA section 104(e) information
request letters, reviewing evidence, and conducting interviews.
In some regions, CIs work exclusively on either removal or
remedial PRP searches. Potential advantages to this approach
are that it allows the investigator to become familiar with the
special types of investigative situations that each presents,
prevents conflicts between the remedial and removal programs,
and ensures an investigator’s availability in cases involving time-
critical removals.
PRP searches often involve complex evidentiary and legal issues.
If PRP searches are conducted or managed by RPMs, OSCs, or
other personnel not experienced in performing enforcement
investigations, it is advisable to involve both enforcement staff
and counsel in planning PRP search activities as well as in
reviewing information obtained, contractor deliverables, and
conclusions drawn.
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EPA Attorney
The level of involvement of the case attorney in the PRP search
may vary from region to region, site to site, and with the nature
and number of legal issues associated with the site. RPMs, CIS,
and other PRP search staff should seek to involve the case
attorney as early as possible to ensure that collected information
meets evidentiary standards and that the scope of the PRP
search is appropriate. It is very important to seek and obtain
attorney input regarding sufficiency of evidence questions, title
searches, conducting interviews, definition of site, and
classification of PRPS (e.g., de micromis, insolvent). In addition,
most PRPs retain legal counsel to represent them throughout the
conduct of the response action. Thus it is important that the
regional case attorney, at a minimum, be involved in the critical
PRP search planning and implementation milestones identified in
the PRP search plan.
Contractor
As mentioned earlier, each region performs PRP searches in a
slightly different manner, depending on the organization of the
region, availability of staff with PRP search experience, number
of PRP searches, and other factors. Most, if not all regions,
however, utilize contractors in some capacity when performing
PRP searches. Contractor support activities include establishing
and maintaining PRP databases, performing title searches,
prepanng PRP search reports, and reviewing and compiling
records. Contractors, however, cannot perform inherently
governmental functions. Prohibited activities include liability
determinations and issuance of information request letters.
Regional contracting officers (COs) and project officers (POs)
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should be consulted regarding the regional enforcement
contract’s scopes of work and its suitability for obtaining PRP
search task support. (See Appendix B for a list of regional COs
and POs.)
Financial Analyst
There are situations when specialized expertise is needed to
make difficult ability to pay determinations, assess complex PRP
financial records or business transactions, and evaluate
bankruptcy claims. In these instances, regions may use in-
house financial analysts (if available), EPA’s National
Enforcement Investigations Center (NEIC) staff expertise, or
contractors with this expertise.
Use of SEE Personnel in PRP Searches
The Senior Environmental Employment (SEE) program was
formally established through the Environmental Programs
Assistance Act (June 12, 1984). (See Chapter 2 references,
page 94.) Under this Act, EPA is authorized to enter into
cooperative agreements (CAs) with certain private, non-profit
organizations designated by the secretary of labor as
organizations that are eligible to receive funds under Title V of
the Older Americans Act (1965). (See Chapter 2 references,
page 94.) The Act specified that individuals age 55 and older in
temporary, short-term assignments can provide technical
assistance to federal, state, and local environmental agencies for
projects on pollution prevention, abatement, and control. Most,
if not all, regions participate in the SEE program.
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A SEE employee, although not an EPA employee, working for
EPA in a PRP search investigative role could take on the following
tasks:
• assisting in coordinating with other regional PRP search
personnel to assure effective implementation of national
investigative policy or guidance; and
• providing training or technical assistance on possible
techniques and approaches to other personnel who are
involved in fact finding or information gathering.
If SEE personnel are used to support PRP searches or
investigations, they should have:
• general knowledge of criminal and civil provisions of
environmental protection statutes, particularly the
provisions of statutes governing the illegal generation,
disposal, and transportation of pollutants, toxic
substances, and hazardous materials;
• knowledge of investigation principles and techniques,
including laws and decisions relating to investigative
procedures; functions and jurisdictions of agencies; and
the scope, application, and interpretation of laws enforced
by EPA;
• skill in the use of investigative techniques to gather
evidence to establish facts needed to make a case; and
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• the ability to conduct interviews and draft interrogatories;
recognize, explore, and utilize leads; detect less-than-
evident discrepancies in information; prepare reports;
plan, organize, and conduct investigations; and testify in
legal, quasi-legal, or administrative proceedings. (SEE
employees who conduct interviews must identify
themselves as contractors.)
2.1.2
Opportunities for PRP Planning a PRP search involves identification of the roles and
input to the Search responsibilities of the key players involved in the PRP search
effort. At some sites, PRPS may be key players in the PRP search
process. Although EPA performs the primary PRP search
functions, consideration should be given during the planning
process to the potential benefits to the Agency of using PRP
resources to accomplish certain search tasks, such as waste-in
list development, allocations, corporate research, etc.
Since the inception of Superfund in 1980, a significant number of
parties have participated in or conducted a variety of PRP search
tasks in an effort to identify additional parties with whom
response costs might be shared. In several instances, PRP
resources and expertise have helped identify additional parties
and accelerate the settlement process.
Background
This section provides guidance for facilitating timely and
meaningful participation by PRPs based on regional and
headquarters PRP search staff and case teams’ experience and
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analysis of the PRP search process. Recommendations for
involving PRPs in the search process arose from the following:
• The National PRP Search Work Group, formed in early
1995. This work group’s efforts resulted in several
recommendations for enhancing the PRP search process.
• Superfund administrative reforms, including the PRP
search pilot project, expedited settlement pilot,
alternative dispute resolution (ADR) pilot, and allocations
pilot. These reforms demonstrated that early involvement
of PRPs can greatly benefit and facilitate the PRP search
process.’
• The National PRP Search Enhancement Team, formed in
1997, studied past and present regional search
processes, and surveyed those involved in and with the
case teams, including states, tribes, and other federal
agencies. The team proposed enhancements for the
search process based on the recommendations, lessons
learned, and experience of those involved in the various
cases.
The first round of Superftind administrative reforms began in 1993, the second round in
February 1995, and the third round in October 1995 See Chapter 2 references, page 94
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Specific findings that resulted from this experience and analysis
include:
• PRP5 often have access to specific information not readily
available to EPA that may significantly expedite either site
characterization (site history and chemical process
information) or PRP status determinations (names,
finances, and relationships). In addition, EPA may have
information that could assist in PRP allocation efforts.
This information was generally shared with PRP5 following
EPA’s receipt and review of responses to CERCLA section
104(e) information requests, a point early enough to
maximize use of the information and forge constructive
working relationships with the PRPs. 2 In the case of
confidential business information (CBI), the Agency must
withhold information from PRPs.
• PRP steering committees can be utilized to coordinate and
share information relevant to their site. Such
constructive working relationships often lead to enhanced
settlement opportunities and prevent delays during
negotiations.
Potential Benefits of Involving PRPs in the Search
Involving PRPs in the search process allows them to provide
information that helps EPA create a broader base of knowledge
2 EPA has addressed the need for infomiation exchange and sharing in Releasing
Information to PRPs at CERCLA Sites (March 1, 1990), Issuance of Interim Rule
Disclosure of Confidential Data to Authorized Representatives of the United States and
Potentially Responsible Parties (January 5, 1993), and other guidance documents See
Chapter 2 references, page 94. The interim rule applies only to the release of EPA’s
contractors’ documents to PRPs, not to the release of other PRPs’ documents
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and facilitates identification of PRPs. Regional experience has
demonstrated that involving PRP5 in the PRP search process:
• results in the identification of additional PRPs;
• leads to improved response action planning;
• leverages the resources of the PRPs, saving time and
money for both the PRPs and EPA; and
• enhances the likelihood of settlement by;
• narrowing the number of issues requiring
resolution,
• limiting the issues that PRPs may have among
themselves, and possibly reducing the likelihood of
third party litigation,
• developing working relationships, and
• developing relevant information leading to
settlement.
Degree of PRP Involvementllnput to the Search
The Agency should provide PRPs the opportunity to participate in
or provide input to the PRP search process. Recognizing that the
degree of PRP involvement or input can vary greatly, this section
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offers processes used and recommendations made by the
regions for addressing the level of PRP involvement. The
ultimate responsibility for bringing the PRP search to an
appropriate conclusion lies with the Agency. It is the case
team’s responsibility to determine PRPs’ degree of involvement
in the search process.
While considering the potential nature and extent of PRP
involvement in the search process, the case team should:
• determine the specific information needed from the
search; and
• consider whether any PRP has an unfair advantage, bias,
or position that would limit the availability of information
to any other party.
When determining the level and type of input needed, the case
team may be influenced by the following circumstances:
• confidentiality of information issues;
• the presence of third party tort issues or contribution
litigation among the PRPs,
• the presence and level of cooperation that the PRPs have
demonstrated;
• site-specific factors such as timing or large numbers of
known PRPs; and
• status of interaction between EPA and PRPs at the site.
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The tasks that the PRP5 perform should be structured
accordingly (e.g., identifying the categories of parties that EPA
wants existing PRPs to focus on in their search activities). Some
examples of tasks that have been successfully undertaken by
PRPs can be found on page 67.
There may be instances where the case team determines that in
order to avoid any appearance of bias, it is appropriate for the
PRP to hire a neutral ADR professional to perform certain tasks
instead of performing them itself, for example:
• facilitating information exchange among PRPs and
between PRPs and EPA;
• allocating costs;
• testing settlement options;
• focusing issues;
• dispelling misconceptions;
• resolving misunderstandings; and
• helping create functional relationships.
Guidelines
Regardless of the level of PRP involvement or the tasks
conducted by the PRPs, they should be made aware that the
Agency will retain responsibility in the following areas:
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• conducting and overseeing the PRP search;
• determining the timing and extent of the PRP search;
• deciding when and how to evaluate information submitted
for EPA review;
• determining which parties will receive a CERCLA section
104(e) information request or notice letter; 3
• determining which parties to name as PRPs; and
• determining the terms of settlement(s) with the identified
PRPs.
Following are general guidelines to assist in determining when
and how regions might benefit from PRP involvement in and
input to PRP search activities:
• Begin the PRP search as early as possible, compiling
baseline information regarding operation of the site and
identifying the liability of the major viable PRPs. Identify
to what extent the PRPs are to be involved, then invite
the PRPs to be involved in the search process.
mc OSRE memorandum Revised Final Guidance on Disseminating EPA’s
SBREFA Information Sheet to Businesses at the Time of Enforcement Activity (August
31, 1999) states that EPA will notif y small businesses of their right to comment on
regulatory enforcement activities when EPA makes its “initial enforcement contact” with
the business See Chapter 2 references, page 94. Under CERCLA, the initial enforcement
contact is typically a general or special notice letter See Chapter 2 references, page 95 for
the Small Business Fact Sheet.
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• Balance the goal of achieving fairness in the search
process by involving PRPs with the need to keep the
process manageable. EPA may request that input be
channeled through organized groups of PRP5 (e.g.,
steering committees) whose liability EPA has established.
• Ensure that the PRPs involved in the search process are in
compliance with any CERCLA section 104(e) information
requests issued to them and have committed themselves
to supplement those responses in a timely manner as
additional information becomes available.
• Determine which tasks the PRPs are capable of
performing. Discuss their involvement in the search
process with them. The PRPs can perform some tasks
with EPA oversight, EPA and the PRPs can share some
tasks, and EPA can reserve some tasks for itself. Reflect
this agreement in writing, e.g., in a letter memorializing
tasks, roles, authorities, and deadlines. Define the period
during which PRPs may provide EPA with information on
other parties, and clearly communicate that PRPs need to
adhere to deadlines in order to avoid delays. 4
• Communicate to the PRP5 that;
• The work they perform must be fully
documented to support its completeness and
accuracy. All supporting records and
documentation must be submitted to EPA for
4 Failure of the PRPs to meet agreed deadlines may result in EPA takeover of a
task a PRP has agreed to perform, which may increase costs to PRPs. It also may result in
information being obtained too late to be considered
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possible inclusion in the sites administrative
record or use as evidence in federal court, as
appropriate.
• The information submitted by them regarding
other parties may be used by EPA for litigation
and negotiation purposes, and therefore should
not be submitted subject to protection under
the Privacy Act (see Chapter 2 references,
page 95) privilege, or a claim of CBI 5 unless
absolutely necessary. The information may
qualify for protection under other laws. EPA
should determine the nature of the material
submitted and whether other laws apply as
early as possible. This is particularly important
to do if the information has been or will be
exchanged among the PRPs. These issues can
be complex and are best addressed on a case-
by-case basis.
• All participating parties must have equal access to
information.
• EPA should advise PRPs of its enforcement discretion
policies.
• EPA should encourage use of ADR professionals to assist in
information gathering and PRP identification efforts where
appropriate.
5 As defined in 40 CFR Part 2, Subpart B. See Chapter 2 references,
page 95.
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PRPs who participate in the search process should commit
themselves to working with EPA in good faith for the duration of
the search.
identification of Additional Parties
EPA and PRPs have an interest in assuring that the list of PRPs is
as complete as possible prior to the start of settlement
negotiations and private PRP allocation efforts. Regions are
encouraged to provide the previously identified PRPs with an
equal opportunity to identify and propose other parties for
consideration as PRPs. 6 One way to accomplish this is by
soliciting information on additional PRPs in the GNLs.
Generally, EPA should extend this opportunity in the GNLs, in
writing. The letter extending the opportunity should:
• specify that PRPs must explain the legal and factual basis of
identified parties’ liability and submit supporting
documentation;
• state that all waste-in lists submitted should explain all
assumptions made in compiling them; and
• establish a deadline for submitting information so EPA has
time to consider it for a particular purpose (e.g., issuance
of SNLs).
6 The case team should build in time during the planning of response and
enforcement actions to allow for the potential need for EPA to issue followup CERCLA
section 104(e) information request letters to newly identified parties before EPA makes
final PRP determinations.
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The earlier in the PRP search process additional parties are
identified, the better chance EPA has of getting existing and
newly identified PRPs to participate in settlement negotiations.
As previously stated, EPA generally should invite the PRPs in
writing, but the case team should decide how to extend the
invitation in specific cases. Some options for extending the
invitation include:
• making a verbal request to the owner or operator for
information about other PRPs (generators, transporters, or
other owners or operators) and documenting in writing any
input provided, or taking an administrative deposition so
that the sworn testimony can be provided to other PRPs;
• publishing newspaper advertisements and setting up
telephone hotlines;
• identifying PRPS at emergency removal sites to resolve past
Agency or PRP costs;
• using a more inclusive or formal process for longer-term
response actions (PRPs should be asked as early as
possible, e.g., at the beginning of the RI/FS or EE/CA to
identify other PRPs); and
• extending the invitation at a meeting or via teleconference
with individual PRPs or the PRP steering committee when
time does not permit a written invitation.
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Regardless of the process EPA uses to afford PRPs the
opportunity to identify additional parties, EPA should document
in writing the process used and the input received. One way of
documenting the information is with signed first-person
narratives obtained in interviews.
EPA is under no legal obligation to address information provided
by PRPs identifying other PRPs or to advise them whether the
new parties were determined to be PRPs, but EPA should provide
some feedback or explanation as to why the newly identified
parties were or were not named.’ Factors to consider in
determining the appropriate response to PRPs when EPA
determines the information provided by them cannot be
considered may include:
• adequacy and timeliness of the information submitted;
• ability of EPA to respond in a timely manner; and
• the administrative burden of responding.
Additional Opportunities for Enhancing the PRP Search
Process and Involving PRPs
Several cases and sites have incorporated the following to
enhance the involvement of PRPs in the search process:
7 Model CERCLA section 104(e) letters provide examples of questions for PRPs
that relate to information concerning other PRPs See Chapter 2 references, page 95 for
sample information request letter questions In addition, EPA personnel are required to
document their decisions to exclude certain PRPs from any CERCLA section 106 UAOs
that are issued, or not to issue UAOs to late-identified PRPs See Chapter 2 references,
page 95 for OSRE memorandum, Documentation of Reason(s) for Not Issuing CERCLA
§ 106 UAOs to All Identified PRPs (August 2, 1996)
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• using ADR professionals or neutrals to facilitate information
gathering activities and communication among PRP5 and
with EPA (ADR professionals, e.g., mediators, allocation
specialists, do not make determinations on the liability of
PRPs or the appropriateness of Agency decisions on the use
of information; rather, neutrals may be used to assist PRPs
and EPA in designing and conducting information gathering
or to support PRP efforts to organize these activities. Use
of ADR professionals has proven particularly useful in
assisting PRP involvement at early stages of the Superfund
process and during PRP allocation activities.);
• using CERCLA section 104(e) information requests with
questions designed to obtain information on additional
parties related to a site and tailoring specific information
requests to the type of PRP and his involvement at the site;
• establishing repositories of publicly available non-
enforcement-sensitive site information, and developing
databases to make site information accessible to widely
dispersed parties; and
• interviewing people with knowledge of the site as early as
possible.
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Information Provided and Tasks Conducted by PRPs
During Some PRP Searches
PRPs may be sources of information. The types of information they provide may
include:
• information for the preparation of waste-in lists;
• factual information for EPA to consider in determining who should
receive CERCLA section 104(e) requests;
• information obtained from depositions taken by the PRPs in private
contribution actions; and
• statements or affidavits of potential witnesses.
PRPs may engage In information search activities. Information search activities
may include:
• performing or supplementing title searches;
• obtaining public documents from on-line searches and other sources;
• providing advice and documentation on industry-specific waste
streams and process information;
• obtaining corporate records and providing factual information to
support EPA determinations of corporate successorship and liability
of parent corporations and corporate officers and directors;
• locating witnesses or other parties; and
• performing witness interviews and providing EPA with affidavits or
investigative notes from interviews.
PRPs may participate in compiling and processing Information and providing
resources. Such activities may include:
• sharing information from in-house databases;
• managing document repositories;
• preparing volumetnc rankings and waste-in lists and sharing the
results, supporting information, assumptions, and methodologies with
EPA; and
• funding neutral ADR professionals to assist in information gathenng
efforts.
NOTE: PRPs must never represent themselves as EPA personnel when
performing PRP-search related tasks
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Site Management
Plan
2.3
PRP Search Plan
Superfund sites often present enormous logistical, technical, and
legal challenges. In order to properly mesh technical site
investigations, PRP search activities, corn munity involvement,
PRP involvement, site cleanup activities, and cost recovery
activities, a site management plan may be prepared. The plan
helps identify the site activities as well as timing, resources, and
milestones. The lead agency (EPA or the state) is responsible for
developing the site management plan, which will most often be
prepared by the lead remedial program technical person
assigned to the site, usually the RPM. Development should be
closely coordinated with the case attorney, management team,
and any other necessary staff.
The site management plan should define the roles and
responsibilities of individual team members as well as the role of
management. The plan may describe each participant’s
activities and deliverables, objectives, and issues associated with
the site, proposed schedule of events, and resource issues.
The site management plan addresses the broader issues
associated with the PRP search, such as timing, duration, and
resource needs of the PRP search, whereas a site specific PRP
search plan focuses on the “nuts and bolts” of how the PRP
search will be conducted. The PRP search plan should be
considered iterative in nature since it is not possible to predict
with certainty all the types of information that may need to be
gathered, the questions and issues that may develop during the
baseline phase, or the followup tasks that will be necessary to
complete the search.
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Developing a PRP search plan consists of the following six tasks:
1. Developing a plan for managing the PRP search, including
the baseline search, issuance of information request letters,
additional search tasks, investigative strategy for
identifying generators and transporters, followup on
additional work that may occur due to any data gaps that
may develop during the search, and evidence reviews;
2. Identifying sites or issues that may require specialized
strategies, staff, or contractors with specialized skills, such
as;
• municipal landfills,
• battery recycling sites,
• area-wide groundwater contamination or
stream contamination where sources are not
apparent,
• remote sites, e.g., where one company owned
or operated multiple sites and transshipped
wastes between them, or
• mining sites, particularly those that are very
old or involve districts and large watersheds,
3. Defining roles and responsibilities for all members of the
PRP search team;
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4. Identifying review points for assessing the direction and
thoroughness of the PRP search;
5. If resources exist and there is a need for specialized
support, developing a detailed scope of work to obtain
contractor support, with provisions for phased deliverables,
realistic due dates, and assignment of a work assignment
manager to provide technical direction to the contractor,
review deliverables, and assist with contract management;
6. As appropriate, including opportunities for PRP involvement
in the PRP search, e.g., language in information request
letters requesting PRP nominations or information,
questions in witness interviews, tasks which PRPs may
perform or in which they may participate.
PRP search plans should not be confused with PRP search work
plans. Work plans are documents prepared by contractors which
detail work to be performed by the contractor and identify
proposed staff in response to a scope of work prepared and
issued by EPA or another contracting agency.
To ensure that the PRP search plan addresses potential legal,
technical, community involvement, and policy issues that may be
associated with the PRP search, the PRP search manager should
include all EPA staff working on the site (CI or other investigative
staff, RPM, OSC, site assessment manager (SAM), community
involvement coordinator, attorney) in the development of the
plan.
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Timing and Duration
EPA initiates PRP searches once it is reasonably certain that EPA
will incur response costs. PRP searches may be performed in
phases, with a preliminary PRP search initiated during or
immediately after a removal response, or near the conclusion of
the PA/SI, before a site is proposed for listing on the NPL. The
objectives of a preliminary PRP search may include: 1)
identifying the current site owner or operator in order to
determine whether she is capable of or willing to perform actions
to stabilize conditions at the site; 2) learning more about
potential hazards that may be encountered and require a
response; or 3) gaining access to the site. Once a removal
response has been completed or the site has been proposed for
listing on the NPL, a more extensive PRP search will be
undertaken. In practice, depending on resources and the
urgency of site response actions, there may or may not be a
break between the preliminary PRP search and the more
extensive PRP search.
PRP search activities are generally iterative, rather than discreet,
especially at more complex sites. For example, at a watershed
contaminated by mining activity where there are hundreds of
waste piles or discharging mine adits that could be sources, the
PRP search team may wait until technical staff have determined
which waste piles or adits will require a response before
undertaking extensive ownership and operational history
research. In such situations, the region may choose to have a
contractor conduct research on archive, library, and government
agency records for all individual mines and mills within the site,
but initiate title searches for individual mine properties only
when a response action for the facility is being planned.
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A PRP search may be considered complete when, in the best
judgment of the site team, the following factors have been
satisfied:
• all relevant and material leads from CERCLA section 104(e)
responses, interviews, and other primary or source
documents have been pursued;
• PRPs have been afforded opportunities to participate in or
contribute to the PRP search, and the information has been
verified and/or authenticated and incorporated in the PRP
search;
• sufficient information and evidence have been obtained to
support the government’s liability case, or determine that
no viable PRPs exist or can be found; and
• ability to pay determinations have been made for those
PRPs who have asserted inability to pay in good faith.
The following two sections provide a more detailed discussion of
the timing and duration of PRP searches at removal and remedial
sites.
Removal Searches
When PRPs are known and are able to perform the removal, EPA
prefers that they undertake the response action. PRPs currently
undertake approximately 20 percent of all removals. EPA s goal
is to maximize PRP participation in the removal process, which
means PRP searches in the removal context are increasingly
important.
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A PRP investigation should be part of the preliminary assessment
that an OSC conducts under NCP section 300.4 10. (See Chapter
2 references, page 95.) An important reason for initiating a PRP
search at this point is to identify and locate the property
owner(s) in order to obtain access. To the extent appropriate
under the circumstances, the search should proceed to identify
other PRPs and attempt to have them perform the necessary
removal action. If the removal is conducted with federal funds
from the Superfund, supplemental searches during a stabilization
action may be warranted to identify PRPs to take over the action
and reimburse EPA ’s response costs.
The level of effort of the PRP search tasks in the removal context
depends on the amount of time between discovery of the release
or threatened release and execution of the action memorandum,
the urgency of the release or threatened release, the likely
expenditures on the removal, and available resources.
EPA classifies removals Into three categories:
1.. Emergency Removals
Emergency removals are initiated in response to a release or
threatened release that requires on-site activities within hours of
determination that an action is needed.
In emergency situations where the PRPs are not immediately
known, the PRP search is often conducted in two phases.
Initially, oral inquiries are made of municipal officials and
reasonably available on-site personnel, and reviews of readily
available site records are undertaken. This also may be an
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appropriate time to interview neighbors and adjacent businesses.
Activities include documenting, photographing, or photocopying
visual evidence linking PRPs to the site, including drum labels,
shipping records, and vehicle registrations, and notifying either
the regional office that handles criminal investigations or the
National Enforcement Investigations Center (NEIC) if criminal
activity is suspected.
An expedited work assignment (see Appendix C) may be used
through the Superfund Technical Assistance and Response Team
(START), the Superfund Enforcement Support Services (SESS),
or other available contract vehicles. The OSC should prioritize
and expedite certain search activities to support the notice,
negotiation, and AOC process before the removal begins. This
may mean notifying PRPs orally of their potential liability after
consulting with the Office of Regional Counsel (ORC) and
following up with a notice letter as soon as possible after the oral
notification. Once the site is stabilized, a second, more
extensive phase of PRP identification should commence.
2.. Time-Critical Removals
Time-critical removals are initiated when the lead agency
determines, based on a site evaluation, that a removal action is
appropriate and on-site activities must be initiated within six
months.
In time-critical situations, the OSC should follow procedures that
expand upon the PRP search activities discussed for emergency
situations. Title searches and on-site interviews also should be
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conducted. CERCLA section 104(e) information requests that
include questions pertaining to generators and financial viability
may be used to obtain additional evidence.
3. Non-Time-Critical Removals
Non-time-critical removals (NTCRs) are initiated when the lead
agency determines, based on a site evaluation, that action is
appropriate but a planning period of more than six months is
available before on-site activities must begin. NTCRs are often
managed by RPM5.
PRP searches for NTCRs are expected, generally, to obtain the
same level of PRP information that would be gathered during a
PRP search at a remedial site. As in remedial searches, followup
activities should be completed in time for SNLs. Typical NTCR
PRP search tasks include:
• reviewing EPA, state, and local agency files for information
regarding land use, owners and operators, waste handling,
and disposal permits;
• questioning of persons on or near the site in greater detail;
• conducting extensive on-site and off-site interviews;
• reviewing documents left on site, e.g., manifests (generator
information), business records (business partners, financial
status, etc.), payroll records (former employees who may
have information about generators, operators, or on-site
waste disposal);
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• conducting title searches; and
• obtaining historical aerial photographs.
Many traditional pre-remedial site assessment tasks provide
information needed for the PRP search. These tasks need not be
duplicated by the PRP search staff. Appendix D contains a
checklist that was developed to assist early on-site responders
(OSCs, SAMs, RPMs, etc.) in documenting valuable information
on PRPs and site conditions. To avoid duplication of these tasks,
early on-site responders should fill out the checklist as
completely as possible and forward a copy to the regional CI or
enforcement staff person conducting the PRP search, put a copy
in the site file, and provide a copy to the case attorney.
Remedial Searches
Remedial sites typically require comprehensive PRP searches that
may be performed in two or more phases. Search activities
should begin as soon as the region believes that the site is “NPL-
caliber” and that a long-term response is appropriate. NPL-
caliber sites include those involving:
• contaminated aquifers used for public drinking water;
• soils in residential areas or schools contaminated with
hazardous substances significantly above background
levels; and
• sensitive environments, with threatened or endangered
species, containing hazardous substances significantly
above background levels.
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Timing and duration goals for remedial searches should be to:
• identify a sufficient number of viable PRPs concurrently with
the NPL listing of a site to negotiate performance of the
RI/FS;
• identify and classify PRPs such that EPA can offer de
minimis parties a settlement prior to conclusion of the
RI/FS (pre-ROD);
• identify the full universe of PRPs, including insolvent and
defunct parties, prior to issuance of RD/RA SNLs;
• identify the insolvent and defunct parties so that an orphan
share can be calculated, if appropriate, and the number of
viable PRPs for negotiations can be established; and
• identify and classify other parties, such as de micromis and
MSW contributors, parties with ability to pay problems,
etc., prior to issuing SNLs.
Proof of liability may be more complex at old sites with limited
documentation. With potentially numerous and complex legal
and technical issues to address at remedial sites, a phased
approach to the PRP search should be considered. A phased
approach may initially yield a core group of financially viable,
capable, and cooperative PRPs with whom EPA can negotiate
performance of the RI/FS. EPA may then continue PRP search
efforts, perhaps with assistance from the PRPs, while the core
group of PRPs is performing the RI/FS.
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Followup activities to the initial phase of a remedial search will
be highly site-specific and may be dictated by leads developed
from preserved evidence or sampling and response activities.
On one hand, relatively straightforward enforcement sites, such
as owner/operator sites, may only require a few interviews as
followup to evidence preservation activities in order to establish
PRP liability and determine ability to pay. On the other hand,
complex enforcement sites, such as recycling operations, area-
wide ground water sites, and landfills typically require more
comprehensive followup activities that may include a large
number of information request letters and interviews and
development of transactional databases.
For planning purposes, regions should identify a general period
of two to five quarters for conducting PRP searches, with more
time allowed for complex, multi-generator sites. Some complex
sites, such as those with area-wide ground water contamination
with multiple sources of hazardous substance releases or stream
sediment contamination, may require specialized tasks that
extend through the RI. Where enforcement staff and resources
allow, a baseline PRP search report should be completed 90 days
before the start of the RI/FS, and the interim final PRP search
report should be completed at least 90 days prior to issuing
RD/RA SNLs. PRP search starts and completions are two of the
program measures currently being used to track overall program
progress.
Recommended activities for a thorough PRP search are:
• initiating a dialogue with early-identified PRPs to provide an
opportunity for PRP input to the PRP search;
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• collecting the financial and waste contribution data needed
to perform PRP orphan share calculations;
• following up on all leads to identify parties at the site;
• obtaining the information necessary to make de minimis
and de micromis determinations;
• categorizing all parties (e.g., generator/transporter,
owner/operator, de minimis/de micromis); and
• performing a financial viability determination of all PRPs
asserting inability to pay.
Even if a PRP search is deemed complete, EPA may undertake
additional search activities. This is likely to be the case when
followup search activities are needed to support the Agency’s
cost recovery efforts against non-settlors or at sites with Trust
Fund-financed cleanups. For instance, additional information
request letters can be sent to a facility’s suppliers during cost
recovery litigation in an effort to obtain more evidence about the
facility’s waste. If EPA is engaged in ongoing litigation (e.g.,
cost recovery), PRP search personnel should coordinate closely
with the assigned attorney in issuing any such information
requests. Although strong precedents support the claim that
EPAs administrative information gathering authorities are
separate and distinct from the civil discovery process, it would
nevertheless be prudent for case teams to carefully consider
their available options in the scenario of ongoing litigation.
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2.3.2
Streamlining Due to constrained resources and an increased focus on
gathering more PRP search information earlier, possible ways to
Considerations
increase the efficiency of a PRP search include:
• multi-site work assignments;
• simultaneous submission of reports to all Agency
reviewers;
• open procurement authority for enforcement staff;
• an early on-site responders checklist to avoid duplicating
tasks; and
• use of third-party (ADR) neutrals to facilitate gathering and
exchange of information, and PRP organization and
coalescence efforts, where appropriate.
Several regions use multi-site work assignments designed to
expedite PRP search efforts and other enforcement support by
eliminating individual work assignments for each PRP search
effort. Through narrowly defined and directed tasks, the multi-
site work assignment provides EPA with a means to obtain
expedited support in acquiring and managing PRP search
information. A general work plan is prepared by a contractor
based on EPA ’s statement of work for a multi-site open work
assignment for enforcement support. Once the general work
plan is approved by EPA, an EPA work assignment manager
(WAM) initiates site-specific tasking through the use of a
technical direction memorandum (TDM) to the contractor. The
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TOM must be approved by the EPA project officer, and will direct
the contractor to perform specific tasks for a designated site and
describe the type of deliverables required. The TDM further
provides the contractor with a site account number for charging
work performed for the site and a target date for completion of
the work. An example of a multi-site work assignment is
provided in Appendix C. PRP search staff should consult their
region s COs or POs to determine whether PRP search work can
be performed ur der a multi-site work assignment. A list of
regional COs and POs is provided in Appendix B.
Some regions are reducing PRP search deliverable review times
by requiring the PRP search contractor to submit copies of the
draft baseline and interim final PRP search reports
simultaneously to the program and ORC offices. Regions are
also encouraged to require phased deliverables instead of one or
two deliverables over the life of the PRP search. Phasing can
reduce the risk of contractors conducting searches that are
entirely off track, increase product quality, and provide
opportunities to modify the PRP search approach incrementally.
A few regions have successfully piloted procedures streamlining
the process for reimbursing Agency employees for out-of-pocket
expenses incurred in the performance of official duties. This
streamlining simply involves the use of an open procurement
request (PR) against which a succession of claims may be made,
instead of the current process of preparing a new PR for each
claim. Enforcement investigative staff typically make repeated
small purchases in the performance of their duties, primarily for
photocopying services. Since it is usually impossible to identify
all the potential sources of documents in advance, such as
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libraries, county courthouses, and universities, blanket purchase
agreements (BPAs) are not a practical alternative. These
institutions do not normally accept bank cards. Some regions
have found credit card checks useful in these situations. Open
PRs are established for each investigator, authorizing the
individual to incur expenses for photocopying up to the amount
of funding committed under the PR.
Investigators obtain reimbursement for such expenses by
providing receipts and documenting a Standard Form (SF) 1164
referencing the open PR. Enforcement investigative staff should
consult the appropriate contract and financial personnel in their
region to determine specific procedures for open procurements.
An early on-site responders checklist is another useful tool for
streamlining the process and reducing duplication of activities.
2.4
PRP search planning should identify the site-specific activities
PRP Search Tasks
necessary to achieve the search s goals. The nature and number
of search tasks will vary from site to site. For instance, a PRP
search at an industrial plant site with only a few owner/operators
should only require a baseline effort, with few or no followup
tasks necessary. For multi-generator or multi-transporter sites,
PRP searches typically are conducted in two phases, baseline and
followup. Since each site involves a unique set of legal and
technical issues, there is no fixed set of tasks that must be
performed during every PRP search. However, a list of tasks
commonly performed during a PRP search is provided in Chapter
4 of the Enforcement Project Management Handbook. Chapters
3 and 4 of this manual describe in detail common and more
specialized tasks frequently performed in PRP searches. Those
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developing the PRP search plan should determine which tasks
should be performed, the sequence in which the tasks should be
performed, and the schedule of deliverables.
Release of Information
The Agency must follow guidelines when determining whether to
release information. The Agency emphasizes the importance of
a consistent approach when releasing information to PRPs about
the identity, relative contributions, type, and quantity of wastes
at a site. Consult the Agency’s Revised Policy on Discretionary
Information Release Under CERCLA (March 31, 1993). See
Appendix E for details on the release of information.
Information may be released through direct contact with PRPs, in
conjunction with issuance of general notice letters or special
notice letters, or by other means. For example, if a large
number of PRP5 are identified at a site, and a PRP steering
committee has been formed, an effective means of information
release could be steering committee distribution of information
to all PRPs. If no steering committee exists, it may prove very
beneficial for EPA or a neutral party to convene a meeting of
PRPs at either the EPA regional office, state office, or a location
central to the PRP community. The goal here is for EPA and
state staff involved with the site to provide information, answer
questions, and receive input from the PRPs. Convening a
meeting of PRPs can result in the identification of additional PRPs
and facilitate formation of a PRP steering committee.
Information release also may occur when the region invokes
special notice procedures under section 122(e)(1) of CERCLA.
When invoking CERCLA section 122 special notice procedures,
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EPA must provide PRPs with waste-in lists, volumetric rankings,
and a list of PRPs’ names and addresses, “to the extent such
information is available.” Documents may include manifests,
logbooks, waste tickets, receipts, and CERCLA section 104(e)
responses.
Handling Sensitive Records
Confidential Business In formation
CBI is commercial or financial information obtained from a
person that is privileged or confidential. Protection of CBI keeps
others from deriving a business advantage from information to
which a specific party has exclusive rights. CBI includes such
items as trade secrets and other proprietary information (for
example, the design of an innovative treatment technology).
When a company submits information that it thinks should be
treated as CBI, it should label the data as such and explain why
the information is considered confidential. It may be helpful to
advise PRPs of these requirements when issuing them
information request letters under CERCLA section 104(e). EPA
does not have to decide whether the information is CBI unless
someone requests its release; however, EPA must maintain the
security of that information as if it were CBI until EPA makes a
determination to the contrary. (See Chapter 2 references, page
95 and 40 CFR 2.201 et seq. for information on EPA procedures
for making CBI determinations.)
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Enforcement-Confidential / Enforcement-Sensitive
Enforcement-sensitive records are documents, such as plans for
enforcement actions, case-specific enforcement strategies, and
draft PRP search reports, that might damage EPA’s enforcement
case if they were released. Therefore regions should establish
records management processes and procedures that prevent the
unauthorized release of enforcement-confidential and
enforcement-sensitive documents, and that are consistent with
applicable law.
In formation Requested Pursuant to FOIA
The Freedom of Information Act (FOIA) imposes two basic
requirements:
• a duty to publish or otherwise make publicly available
certain classes of agency records, 5 U.S.C. 552(a); and
• a duty to make all other agency records publicly available
upon written request, unless specifically exempt by statute,
5 U.S.C. § 552(b). (See chapter 2 references, page 96.)
Under FOIA, a record includes any information currently
maintained by the agency in any format. An “Agency record” is
a record that was created by or is under the control of an
agency. FOIA does not require an agency to create a record in
response to a request for information, nor require an agency to
provide future records.
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A FOIA search requires review by manual or automated means of
Agency records for the purpose of locating responsive records.
The agency needs to make “reasonable efforts” to search for
records in electronic form, except when the search would
“significantly interfere” with the operation of the agency’s
computer systems. The search need only be reasonable; it need
not uncover every responsive document in existence, but an
agency employee must not avoid searching for records known to
exist.
The initial response should inform the requester of the agency’s
decision to release or deny records, when it will release records,
and that the requester may appeal the agency’s decision. The
initial response is due 20 working days after receipt of the
request. The agency may obtain a 10-day extension by
informing the requester in writing of “unusual circumstances”
that will cause delay, such as the need to search separate office
and field locations, search voluminous records, or consult
another agency. Failure of the agency to respond within
deadlines may constitute an exhaustion of administrative
remedies, allowing the requester to go to court immediately.
Title 5 U.S.C. § 552(b) defines nine categories of records that
are exempt from release under FOIA.
Exemption 1 - National security
This exemption protects from disclosure national security
information concerning national defense or foreign policy that
has been properly classified in accordance with procedural
requirements of an executive order. EPA received classification
authority in 2002.
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Exemption 2 - Internal rules and practices of an agency
This exemption applies to two kinds of records: (1) records the
disclosure of which may lead to the subversion of an agency rule
or policy, and (2) technically responsive yet purely
inconsequential records that contain little information of value in
comparison to the burden of having to provide it to the
requester.
Exemption 3 - Records specifically exempted by statute
Congress often exempts specific kinds of records through an
“Exemption 3 statute” instead of a FOIA amendment. Laws that
exempt specific records include the Federal Rules of Criminal
Procedure (grand jury information), the Patent Act (unfiled
patent application materials), Procurement Integrity Act (site
selection information), and certain statutes dealing with the
location of endangered species. Critical infrastructure statutes
many contain FOIA exemption provisions.
Exemption 4 - CBI/Trade secrets
Information that is claimed as CBI or a trade secret by a
submitter may initially be withheld from a FOIA requester
pending a confidentiality determination by the Office of General
Counsel (OGC) or ORC. Exemption 4 triggers an automatic
appeal in which an EPA legal office issues a confidentiality
determination and FOIA appeal determination even if the
requester never officially appeals the initial denial. The agency
will determine that information required to be submitted to it is
confidential only if release would either cause substantial
competitive harm to the submitter or impair the government’s
ability to obtain such information in the future. Information that
is voluntarily submitted to the agency has only to meet the lower
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standard of not being otherwise publicly available. Information
must involve a formula or production process to be granted trade
secret status. Most business information is not a trade secret
under that definition.
Exemption 5 - Privileged communications
A record must satisfy two criteria to qualify for this exemption.
First, the record must be inter- or intra-agency, meaning it
cannot have been shared outside the executive branch. Records
or information that originated outside the executive branch may
nonetheless be considered intra-agency if the source is a
“consultant.” A “consultant” is one who assisted the agency’s
decision making process by advising the agency on a matter in
which the consultant has no stake in the outcome and is not
otherwise advancing an interest or agenda that may benefit it
over other parties. Settlement records often must be released
because they are not inter- or intra-agency records. Second, the
record must be protected by a civil discovery privilege. Common
privileges include:
Deliberative process privilege
The record must be pre-decisional and deliberative. The purpose
of the privilege is to promote frank and honest discussion of
options prior to a decision and to avoid public confusion about
the rationale behind an agency decision. Indicators of the
privilege include the management level of the author, the point
in the decision-making process when the record was created,
and how the record was used. The privilege does not lapse after
a decision is made, and generally does not cover facts.
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Attorney-client privilege
The record must have been drafted by or at the direction of an
attorney and contain advice regarding a client’s legal issue and
must have been generated and maintained in confidence. The
purpose of the privilege is to facilitate effective representation by
promoting frank and open discussion between attorney and
client. The agency — not an individual employee or program
office — is the client. Privilege may protect opinions and facts.
Privilege does not attach unless the attorney is actually
employed or acting in a legal capacity. Privilege can protect
communications with any EPA employee, not just members of
management.
Attorney work product privilege
The record must have been drafted by or at the direction of an
attorney in anticipation of litigation, and generated and
maintained in confidence. The purpose of the privilege is to
protect the mental impressions and work product generated by
an attorney while representing a client in litigation. Litigation
need not have commenced; the work product only needs to
identify specific claims that may reasonably lead to litigation. A
record that was generated as a normal part of an agency’s
functions that later may be relevant to litigation is not covered.
The privilege may also apply to factual materials.
Exemption 6 - Personal privacy
This exemption protects personal information whose disclosure
would constitute a “clearly unwarranted” invasion of personal
privacy. The purpose of FOIA is to allow public inspection of
information that is relevant to the workings of government, not
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necessarily every piece of information the government
possesses. This exemption requires a constant balancing of the
public interest in the requested information and the individual’s
right to privacy.
Exemption 7 - Law enforcement
This exemption applies to documents that are compiled for civil
or criminal law enforcement purposes. The exemption applies to
documents the disclosure of which:
• could reasonably be expected to interfere with law
enforcement proceedings (open investigations only;
documents relating to closed investigations must be
released);
• would deprive a person of his right to a fair trial;
• could reasonably be expected to constitute an
“unwarranted” invasion of personal privacy (lower threshold
than Exemption 6);
• could reasonably be expected to disclose a confidential
source;
• would disclose law enforcement techniques and procedures
and could reasonably be expected to risk circumvention of
the law; or
• could reasonably be expected to endanger the life or
physical safety of an individual.
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Exemption 8 - Banking information
This exemption applies to records used by agencies responsible
for the regulation or supervision of financial institutions.
Exemption 9 - Well data
This exemption applies to geological and geophysical information
and data, including maps, concerning wells.
ORC or OGC should be consulted whenever a question arises
about releasing records. EPA employees risk criminal liability by
releasing protected information such as CBI materials or Privacy
Act information. Regional FOIA officers should be consulted on
requirements for responding to FOIA requests.
2.5
Document Filing
and Retention and
Release
2.5.1
Document
Management
During the planning process, the search manager should
establish a file structure for the search, considering factors such
as regional file structure, anticipated volume of information,
nature of PRP interaction with EPA on the PRP search, anticipated
information exchange, FOIA response requirements, and
evidentiary concerns; ascertain whether the accumulated data is
likely to be voluminous enough that an electronic system for
managing it will be needed; and develop or obtain such a
system. The PRP search manager should utilize the expertise of
the records manager in each region. This person is an invaluable
organizing and managing records. A document control system
for identifying and tracking documents should also be
established.
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2.5.2
CERCLISIWasteLAN The Comprehensive Environmental Response, Compensation,
and Liability Information System/Waste Local Area Network
(CERCLIS/WasteLAN), is an information management system
made available to EPA’s regional offices and headquarters. It
incorporates numerous site-related subjects.
CERCLIS/WasteLAN includes a number of features intended to
facilitate PRP searches and the sharing of PRP data. These
features are particularly important when interstate or multi-state
PRPs are concerned. Data entered into CERCLIS/WasteLAN
about parties that are associated with a general notice letter,
special notice letter, enforcement instrument, or filed litigation
referral are available to all regions the following Monday. This
data-sharing capability, combined with features that make it
easy to find out if a particular individual or firm is already in the
database, is intended to reduce the need to repeat preliminary
work that has already been done by others.
In addition to basic information (name, address, phone number)
on all parties associated with a site, CERCLIS/WasteLAN also
stores information describing the involvement of the identified
PRPs at the site, a history of any enforcement actions taken,
what response actions the PRPs have undertaken or committed
themselves to perform, and information about correspondence
issued by the Superfund program. CERCLIS/WasteLAN is
available at most work stations in regional offices, and training is
available. A summary of CERCLIS/WasteLAN’s capacity and the
type of PRP-related data gathered, along with examples of
screens used when entering data, can be found in Appendix F.
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Information Management
Factual information gathered during a PRP search can be
grouped by its source and within each source by PRP.
Information request letters and responses should be organized
and maintained for use by Agency personnel. Government
documents, title search documents, PRP documents, interview
summaries, and information request letters and responses may
be grouped separately. Index numbers should be assigned to all
documents to ease referencing of the evidence summary sheets
and the PRP search report. Section 3.2 of this manual discusses
some factors involved in database creation and the storage and
special handling of documents.
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I Chapter 2 References
Applicable or Relevant and 2.0 http ://www.epa .gov/superfund/action/
Appropriate Requirements (ARARs ) guidance/remedy/arars.htm
List of Regional COs and POs 2.1.1 Appendix B
Environmental Programs 2.1.1 http://www.epa.gov/epahrist/see/
Assistance Act (June 12, 1984) brochure/Iaw.htm
Title V of the Older Americans Act 2.1.1 42 U.S.C. § 3056 et seq.
http ://wdsc.doleta.gov/seniors/
____ other_docs/owp-106-501.pdf
Superfund Reforms Home Page 2.1.2 http://www.epa.gov/superfund/programs
(June 1g93, February 1995, and /reforms
October 1995) _____
Releasing Information to PRPs at 2.1.2 http://www.epa.gov/compliance/
CERCLA Sites resources! policies/clea nu p/su perfund/
(March 1, 1990) release-prp-rpt.pdf
Issuance of Interim Rule: 2.1.2 http://www.epa.gov/compliance/
Disclosure of Confidential Data to resources/policies! cleanu p/superfundf
Authorized Representatives of the iss-confdata-mem.pdf
United States and Potentially
Responsible Parties
(January 5, 1993)
Revised Final Guidance on •2. 1.2 http://www.epa.gov/compliance/
Disseminating EPA’s SBREFA resources/policies/civil/sbrefa/index.html
Information Sheet to Businesses at
the Time of Enforcement Activity
(August 31, 1999) ____________________________
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Chapter 2 References
Small Business Fact Sheet
Privacy Act
40 CFR Part 2, Subpart B (CBI)
Sample Information Request Letter
Questions
Documentation of Reason(s) for
Not Issuing CERCLA §106 UAOs to
All Identified PRPs
(August 2, 1996)
Enforcement Project Management
Handbook
National Oil and Hazardous
Substances Pollution Contingency
Plan
Multi-site Open Work Assignment
(expedited work assignment)
Checklist for Removal/Pre-
remedial Sites
2.1.2 http://www.epa.gov/compliance/
incentives! smalibUsiness/index . html
2.1.2
2.1.2
2.1.2
2.1.2
2.3
2.3.1
2.3.1
2.3.1
5 U.S.C. § 552 et seq.
http://www.access.gpo.gov/uscode/
title5/parti_chapter5_.html
40C.F.R. Part 2 -
http ://www .access.gpo.gov/nãra/cfr/
cfrhtml_OOfTitle_40/4Ocfr2_00. html
http ://intranet.epa. gov/oeca/osre/docs/
html
http ://www .epa . gàv/compl iance/
resources/policies! cleanup/superfund/
reason-cerlO6-rpt.pdf
http ://intranet.epa .gov/oeca/osre/hbk-
pdf/index.html
40 C.F.R. Part 300
http ://www.access.gpo.gov/nara/cfr/
waisidx_02/4Ocfr300_02.html
Appendix C
Appendix D
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Chapter 2 References I
L i
Revised Policy on Discretionary 2.4 Appendix E
Information Release Under
CERCLA
(March 31, 1993)
Freedom of Information Act 2 4 5 U S C § 552 et seq
(Reference Guide) http //www epa gov/foia/guide html
Quick Reference Guide for Using 2.5.2 Appendix F
CERCLIS/WasteLAN
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97
3.1 Review
3.1.1
3.1.2
3.1.3
3.1.4
3.1.5
3.2 Organize Records and Track Correspondence
3.2.1 Organization
3.2.2 Correspondence Tracking
3.3 Issue
3.3.1
3.3.2
3.3.3
3.3.4
3.3.5
Files and Collect Records 97
Federal Files 98
State Files 100
Local Government Files 101
Other Records 102
Special Planning Considerations 103
Information Requests
Identify Recipients/Draft Information Requests
Mail and Track Information Requests
Analyze Responses
Develop Response Summaries
Information Request Followup
108
108
111
113
115
132
134
135
136
3.4 Conduct Interviews 137
3.4.1 Interview Considerations 138
3.4.2 Who Performs the Interview 143
3.4.3 Identifying Interviewees 144
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3.4.4 Conducting Interviews 145
3.4.5 Interview Documentation 151
3.5 Perform Title Search 154
3.5.1 Determine Ownership Interests 154
3.5.2 Develop a “Title Tree” 156
3.6 Business Status and Financial Research 158
3.6.1 Introduction 158
3.6.2 Forms of Business Organization . . 159
3.6.3 Person 160
3.6.4 Business Organization 161
3.6.5 Sole Proprietorships 161
3.6.6 Partnerships: General Partnerships and Limited Partnerships . . 162
3.6.6.A Elements Specific to a General Partnership 163
3.6.6.B Elements Specific to a Limited Partnership 164
3.6.7 Corporations 165
3.6.7.A Elements Unique to Corporations 167
3.6.7.B Classification of Corporations 168
3.6.7.C Evolution of Corporations 170
3.6.7.0 Sale of Stock in a Corporation 172
3.6.8 Indemnification Agreements 173
3.6.9 Other Entities 174
3.6.10 Additional Liability Theories 177
3.6.10.A Direct Liability of a Person as an Operator or
as a Person Who Arranged for Disposal or
Treatment of Hazardous Substances 177
3.6.10. B Corporate Officers, Employees, Directors,
or Shareholders 178
3.6.10.C L;ability of Parent and Affiliated Corporations 179
3.6.10.D Elements of Direct Liability 180
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3.6.10.E Piercing the Corporate Veil 182
3.6.10.F Successor Liability 186
3.6.11 Financial Research 189
3.6.1 l.A Corporation and Partnership Filings Required
by States 190
3.6.11.B County Filings and Other State Regulatory Agencies . 191
3.6.11.C Court Filings 191
3.6.11.D Federal Sources 191
3.6.11.E Corporate Directories 191
3.6.11.F Credit Reporting and On-Line Services 192
3.7 SiteSummaryDevelopment 192
3.8 Compile Waste-In Information 195
3.8.1 Transactional Databases 196
3.8.2 Waste-In Lists and Volumetric Rankings 198
3.9 Classify PRPs 205
3.9.1 Identify PRPs 205
3.9.2 Define PRP Category 206
3.10 Prepare Baseline PRP Search Report 208
3.10.1 Report Format and Content 208
3.1O.1.A Deliverable 1: Site Chronology and Property History . 209
3.10.1.B Deliverable 2: PRP Synopsis 210
3.10.2 Report Review and Distribution 211
Figure 1 212
References 215
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3.0 Baseline PRP Search
This initial phase of the PRP search is focused on collecting
evidence that establishes the liability of owner/operator PRP5 and
identifies generator/transporter PRPs. The exact nature, number,
and sequence of search tasks will vary from site to site. However,
this chapter describes 10 tasks that are often completed as part of
the baseline PRP search. Keep in mind that the specific activities
undertaken at a given site will depend on what is needed to
achieve the Agency’s PRP search goals for that site. The 10
baseline PRP search tasks are:
1. Review files and collect records;
2. Organize records and track correspondence;
3. Issue information request letters;
4. Conduct interviews;
5. Perform title searches;
6. Conduct business status and financial research;
7. Develop site summary;
8. Compile waste-in information;
9. Classify PRPs; and
10. Prepare baseline PRP search report.
See Appendix G for a checklist of PRP search tasks.
3.1
Review Files The objective of this task is to locate and obtain copies of all
records pertinent to the site and relevant to the PRP search.
and Collect Relevant records may include correspondence, photographs, sound
Records or magnetic recordings, computer tapes, drawings, hazardous
waste manifests, technical data and reports, permits, notices of
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violations (NOVs), complaints, investigations, site owner records,
fire department chemical reports, litigation files, bankruptcy files,
local newspaper accounts and records, and information available
on line. These records are potential sources of information on site
history, identity of PRPs, and additional contacts. Before an
effective file review can take place, it is critical to become familiar
with the site and all background information. This task generally
starts with a review of EPA files to determine the volume, content,
and nature of existing information. As a starting point, the PRP
search manager should coordinate with the region’s record center
to determine what information is available within the region.
Because state and local offices can be a valuable resource in the
search process, their records should be reviewed concurrently with
EPA’s files or soon thereafter. A thorough search for records in
other federal agencies, local offices, and other sources should be
performed. This task can be conducted at the same time as the
title search and interviews.
Federal records may be found in EPA’s regional record centers or
in files in the CERCLA, RCRA, Emergency Planning and Community
Right to Know Act (EPCRA), air, water, regional counsel, and
criminal investigations offices. Documents maintained in these
offices may include permits, inspection reports, correspondence,
records of violations and enforcement actions, and criminal
records. These documents often reference other federal agencies
that are, or were, involved with the site or a PRP. Taking full
advantage of intra-Agency communications and databases, such
as the CERCLIS/WasteLAN database and the On-Line Targeting
Information System (OTIS), can also yield information on a site or
PRP within the region. Federal sources of information can include
the following:
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POTENTIAL SOURCES:
POTENTIAL INFORMATION
OBTAINED:
• Department of the Interior
maps and aerial photographs
• Nuclear Regulatory
Commission
licenses, permits, studies
• U.S. Geological Survey
studies and ground water data
• Environmental Photographic
Interpretation Center
aerial photographs
• National Oceanic and
Atmospheric Administration
meteorological data
• U.S. Army Corps of Engineers
studies, permits, records at
federally owned sites
• Occupational Safety and
Health Administration
inspection reports, health and
safety incident information
• Securities and Exchange
Commission
current and archival PRP
documents, including financial
statements, corporate business
publications, quarterly and annual
reports
• Coast Guard
incident response reports
• Food and Drug Administration
inspection reports (the FDA had
records of facility inspections from
the 1970s at one Region 2 site)
• Federal Emergency
Management Agency
relocation information
• Federal Records Center
retired federal record files
• U.S. Forest Service
maps, title searches, studies
• Bureau of Land Management
mining information
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State Files
State offices may maintain valuable technical information
pertaining to a site. This information may prove useful in planning
and implementing site response actions. Of particular interest are
documents located in the state’s Superfund & RCRA program
offices as well as records located in the secretary of state and
attorney general’s offices. It is a good idea to familiarize yourself
with the organizational history of state offices in order to
determine the possible location of all needed records. When offices
are reorganized, they sometimes retain files that address subjects
for which the office is no longer responsible. The region may want
to consider including language in State Multi-Site Cooperative
Agreements providing that the state will compile information that it
has on file for each site (e.g., spills, permits issued, compliance
history, orders, citizen complaints). This should result in
preservation of PRP-related information and more timely
identification of PRPs. If states provide information to EPA in this
manner, the PRP search manager should coordinate this in
advance with the state and include this activity in the PRP search
plan. Types of information collected from state files can include the
following:
POTENTIAL SOURCES;
POTENTIAL INFORMATION
OsTAmw:
• Environmental Agency
licenses, permits, studies,
inspection reports, sample data
• Water and Soil Conservation
studies
• Attorney General
correspondence, lawsuits, orders
• Secretary of State
corporation names and addresses,
registered agents, articles of
dissolution, annual reports, limited
partnership filings
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3.1.3
Local Government Local government offices may contain accident reports, permits
Files and licenses, local disposal guidelines, inspection and violation
notices and reports, and memoranda and correspondence between
site owner/operators and local officials. In some cases, local
officials may have prepared site history memoranda and lists of
hazardous materials. Relevant local government records can be
found in:
POTENTIAL SOURCES:
POTENTIAL INFORMATION
OBTAINED:
Office of the City or County
Attorney
correspondence, permits, licenses,
enforcement actions
• Health Department
accident reports, lists of hazardous
materials
• Department of Public Works
operation maps, applications,
inspection and violation reports
• Wastewater Management or
Pollution Department
permits and licenses,
correspondence, control
department’s inspection and
violation reports
• Planning, Land Use, and
Engineering Departments
plat maps, aerial photos,
operations maps, correspondence,
applications
• Zoning Boards
applications, plat maps and aerial
photos
• Police and Fire Departments
accident reports, lists of hazardous
materials
• City Clerk/County
Clerk/Recorder’s Office/Tax
Assessor’s Office
• Historical Society
deeds, leases, grants, addresses,
mortgages and liens, easements,
agreements, legal property
descriptions
past business at the site
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Other Records
Other good sources of information can include:
The PRPs
• PRP management;
• employees;
• suppliers;
• independent contractors; and
• customers.
Sources of information commonly in PRPs’ possession are:
• information on other PRPs (including those not previously
identified);
• hazardous materials listings;
• shipment manifests;
• transporter records;
• Material Safety Data Sheets (MSDSs) for substances used by
PRPs;
• correspondence; and
• corporate records such as board meeting minutes.
Public Libraries, University Libraries, and Historical Societies
• local business collections;
• local newspapers, community newsletters, and articles or
newsletters published by businesses associated with the
site;
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• documents and other paper collections donated by well-
known individuals in the community; and
• specialized collections (e.g., mining, collections of aerial
photographs).
Residents Living Adjacent to the Superfund Site
• identity of PRPs (particularly leads early in the PRP search);
• location of waste disposal areas; and
• information about other activities at the site relevant to the
PRP search.
Other Sources of information
• on-line sources of free information;
• subscription on-line information sources (e.g., Choicepoint,
Dataquick);
• Sanborn Fire Insurance maps;
• Polk/Cross directories; and
• commercial aerial photograph companies.
Early contact with the community may provide important site and
PRP information, establish an EPA and community dialogue, and
encourage productive community involvement throughout the life
of the project.
Special Planning Performing file reviews and collecting records may involve some
Considerations special planning considerations such as:
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Document Production and Retention
It is important to determine the best method for reproducing the
records. Factors relevant to this decision include cost, accessibility
of the facility that will be maintaining the records, and the current
regional records guidance. If any of the records are to be placed in
a public docket, the technology available to the public for
accessing those records at the chosen facility (e.g., microfilm
readers, computer terminals) should be taken into account.
In many instances the integrity of records and chain of custody
issues need to be considered to ensure that the evidentiary value
of documents is not compromised. Also consider Bates stamping’
documents, as this will help verify that no document has been lost
and allows for accurate refiling of documents. (See also subsection
3.2.1)
Volume of Records
If the estimated volume of records to be reviewed and copied is
large, a contractor may be better suited than EPA to perform this
baseline task. If use of a contractor 2 is a feasible option, EPA may
want to initially accompany the contractor in reviewing the records
to determine which documents are relevant and need to be copied.
lBates stamping, which is done by hand with a specially-designed mechanical
stamp, is often used in the legal industry to number or date/time mark images as they are
processed In recent years, more high-tech marking technologies have been developed that
can create images with copynghts by putting a company name, logo, or legal copynght mark
on documents as they are scanned or filmed These imaging technologies can also
automatically add sequential numbering to the images
2 When contractor support is being contemplated for any PRP search task, make
certain that all conflict of interest (COl) checks have been done before the task begins
Coordinate with the regional project officer (RPO) or contracting officer (CO) to confirm
that all necessary contract documentation is in place Only the CO can make the final
determination about the possible existence of a COI
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Depending on the volume of records or the release policy of the
keeper of the documents, it may be more efficient to:
• copy the records at the agency with the help of a rental
copier or temporary help;
• send the records to a local vendor for copying under the
supervision of the contractor staff;
• microfilm the documents and then produce hard copies from
the microfilm;
• procure or rent portable, hand-held scanners as an
alternative to removing, handling, and copying hard copies;
or
• scan documents onto a CD-ROM and provide a database on
line (this method was used successfully for site records in
Region 4 during an allocation pilot).
Confidential Information
EPA frequently encounters records that someone claims are
confidential. Confidentiality claims generally fall into two
categories, government privileged documents and confidential
business information.
Government Privileged Documents
Enforcement-sensitive intra-agency memoranda are among the
most common privileged federal government documents.
Privileged memoranda often concern permit actions, inspections,
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and regulatory violations. These confidential records often provide
valuable PRP and site information, such as degree of cooperation
with the state at the time of disposal. Government privilege is
discretionary. [ Note: As a general rule, an agency’s ability to
make a discretionary disclosure of exempt information will vary
according to the nature of the FOIA exemption and the underlying
interests involved. FOIA exemptions 2 and 5 protect a type of
information that is not subject to any such disclosure prohibition.
(See FOIA discussion in section 2.4 of this manual.)]
Consequently, it is important to work closely with the PRP search
managers and regional counsel when deciding how to handle
potentially privileged records. In some cases, records remain
marked as confidential when there is no longer any reason to treat
them as confidential. Regional and state counsel should work
together to resolve confidentiality issues concerning state records.
Such coordination could also be addressed in the State Multi-Site
Cooperative Agreement discussed previously.
Confidential Business Information
Files obtained from PRPs may be subject to a CBI claim. While
government privilege is discretionary, CBI is a matter of law.
Consult with your PRP search manager and case attorney if CBI is
an issue. Generally, enforcement contracts include a CBI clause,
and contractor personnel sign CBI agreements at the time the
contract is awarded. The PRP search manager, P0, and CO,
however, can verify that fact and provide procedures for CBI
claims. State records and records from other federal agencies may
be subject to such claims as well. If a contractor is performing the
file review and records collection task for EPA, and the PRP makes
a CBI claim, the contractor should immediately inform the PRP
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search manager. The PRP search manager should then consult
with the EPA P0 and CO responsible for the contract under which
the file review is being conducted. The Agency will then determine
whether it is appropriate for the contractor to review the records
and whether the records in question are CBI.
Health and Safety
The health and safety of the personnel conducting the file review
and record search are an important concern. Documents or
records encountered during this task may be contaminated with
hazardous substances. While not common, this problem does arise
on occasion. If document contamination is suspected (e.g.,
because records were found in a contaminated warehouse,
documents are stained), the PRP search manager should be
notified immediately and the Agency should attempt to determine
the probable degree of contamination and its associated health
effects, whether the documents should be tested, and possible
methods to obtain clean copies. If a contractor is performing the
task, the contractor’s health and safety plan (in accordance with
procedures outlined in the PRP search work plan) must be current
before the contractor begins work with contaminated records.
Access Refusal
If EPA or EPA’s contractor is refused access to records or other
sources of pertinent information, EPA or the contractor should
document the circumstances of refusal and identify when, where,
and by whom access was denied. This information should be
provided to the EPA case attorney. Often, parties refusing access
have little or no knowledge of EPA’s information gathering
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authority under CERCLA, and access can often be obtained
subsequently through informal dialogue between the case attorney
and the property owner or the owner’s counsel, if one has been
retained. If a contractor is conducting a records search, the
Agency should provide the cohtractor with a letter of introduction
that explains access rights. This should be a standard operating
procedure when a contractor is responsible for records collection
and file review.
3.2
Organize A good system for organizing, storing, and tracking site files and
tracking correspondence is imperative for case development,
Records and .. - .
litigation, and cost recovery efforts. Check with your region s
Track records manager and other case teams to assess what file
Correspondence structures are already in place and effective. Chapter 15 of the
Enforcement Project Management Handbook (see Chapter 3
references, page 215) can be consulted for information on
organizing site records. Effective tracking of the status of
information request letters and other correspondence greatly
enhances the Agency’s ability to share information with PRPs and
other parties and saves time and resources.
3.2.1
Organization For large, complex sites that have recently entered the Superfund
“pipeline,” it may be beneficial to create a document identification
form to assist in organizing, documenting, and tracking site
records. A document identification form should contain basic
identifying information for each site document, such as the
document’s source, date, title, and author and may also be
tailored to include other information relevant to a specific site. This
form can help avoid later duplication of effort and provides a good
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audit trail. The PRP search team should weigh the benefits derived
from the use of a document identification form against the effort
required to use it before deciding to use this records management
tool.
Records compilation and tracking may involve a fairly simple file
organization; but, some sites, especially large sites with many
PRPs and a large volume of records spanning a number of years,
may require a more complex file organization. To choose the best
method of organizing documents, the following factors should be
considered:
• types of information needed from the documents;
• volume of documents;
• regional file structure;
• capabilities of the organizer;
• ease of document retrieval;
• long-term tracking needs and capabilities;
• potential document security issues (especially since
databases are often shared);
• unique site-specific needs;
• nature and number of potential users; and
• time required to organize documents.
Manual Arrangement of Documents
If a simple organization will meet the records management
objectives for a site, a manual arrangement may be utilized.
Documents may be organized by chronological order, subject
matter, PRP, or author. The documents are then assigned an index
number (e.g., using a Bates stamp, microfilm frame number),
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and an index for the entire document set is developed. To be user
friendly, multiple indexes should be developed based on index
number, document title, author, and date of document, or other
characteristics as decided by the case team.
Use of a Database
[ Note that the following consists of very basic suggestions for
organizing the content of a database. At the time of finalizing this
manual, several regions had developed or were in the process of
developing databases that are far more advanced technically than
these basic suggestions. Please check with your regional PRP
search enhancement team member/contact (see Appendix H) for
information specific to your region.
If a more complex organization is required, such as an
organization with extensive cross-referencing or keyword indexing,
creating a database, as outlined below, may be advisable:
• Group documents of similar content, such as scientific
research, environmental studies, or legal documents.
• Assign an index number to each of the documents.
• Decide what information to use in the database index.
Examples of information from each document might include
the index number, document title, date, author, and
addressee.
• Develop a more complex database, if required, using a
coded designation for particular subject matter, a database
index to refer to a particular subject, and/or keyword
indexing.
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Program the database to access information in various
ways, e.g., chronological order, author, keyword, subject
matter.
When establishing a database for site documents, keep in mind
that new documents will be added periodically. The database
index may require significant revisions if a large number of new
documents are discovered after the keywords are selected or the
index is created. When planning a PRP search for which a complex
file organization may be necessary, time and resource
requirements for database maintenance and modifications must be
part of the planning in order to assure the continued usefulness of
the database.
3.2.2
Correspondence
Tracking correspondence with PRP5 and other parties often
Tracking
requires use of a database due to the large number of parties
involved. If a database is necessary, the following factors should
be considered prior to database development:
• the information that should be tracked for information
request letters, including;
• identity of the recipients of information request
letters,
• delivery status (e.g., accepted, refused receipt,
address unknown),
• response status (e.g., no response, partial response,
complete response),
• capacity of database system;
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• procedures for entry and retrieval of information (keeping
the database user-friendly);
• types of summaries and reports needed;
• number of waste types that may need to be tracked;
• nature and number of database users;
• resource requirements for database development and
maintenance;
• contractor support requirements;
• period of performance of the contract;
• expected period of database use;
• compatibility of contractor hardware/software with the
Agency’s hardware/software; and
• ease with which the database system can be taken over by
another contractor or agency.
Care should be taken not to clutter printouts with any information
not required, or with unprofessional comments. A voluminous
printout of information will likely negate the desired benefits of
tracking, which are to promote information sharing and increase
time and cost savings. As with any database system development,
a quality assurance program should be incorporated for data entry
and edits.
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A manual system for correspondence tracking should also be in
place in the event that the primary information retrieval system
fails. Responses to information requests should be organized
alphabetically by party or in a similar system. Index numbers
should be assigned to all documents and an index of the
correspondence should be created.
Issue
Information
Requests
Section 104(e) of CERCLA and section 3007(a) of RCRA authorize
the Agency to issue information request letters. These letters are
used for information gathering purposes and do not designate an
entity as a potentially responsible party. Most regions have model
information request letters. See the Agency guidance Transmittal
of Sample Documents for More Effective Communication in
CERCLA Section 104(e)(2) Information Requests (June 30, 1995),
Chapter 3 references, page 215. In addition, the Office of Site
Remediation Enforcement (OSRE) has provided the regions with a
compilation of sample information request letter questions that
have historically produced good responses. The letters and
questions are specifically tailored to the type of site (e.g., chemical
plants, dry cleaners), the sophistication of the recipient (e.g.,
individual, small business, large corporation), the recipient’s
involvement with the site (e.g., owner, operator, transporter), and
the nature of the information sought.
Recipients of information request letters may be requested to
produce records or to provide information on site ownership, site
operation, their financial position, wastes sent to the site, possible
generators and transporters, and the existence of records.
3.3
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Subsection 3.3.1 of this manual provides additional information on
the nature and content of information request letters.
Section 104(e) of CERCLA authorizes the Agency to issue
information request letters to any person (including business
entities and government agencies) who may have information
about a site, not just to persons who may be PRPs. The authority
to issue letters under section 104(e) is delegated to specific
individuals within each region. Issuing information request letters
is a basic component of nearly all PRP searches. Under section
104(e)(2) of CERCLA, “ [ a]ny officer, employee, or representative
[ of the President]...may require any person who has or may have
information relevant to any of the following to furnish, upon
reasonable notice, information or documentation relating to such
matter:
(A) The identification, nature, and quantity of materials which
have been or are generated, treated, stored, or disposed of
at a vessel or facility or transported to a vessel or facility.
(B) The nature or extent of a release or threatened release of a
hazardous substance or pollutant or contaminant at or from
a vessel or facility.
(C) Information relating to the ability of a person to pay for or
to perform a cleanup.”
RCRA section 3007(a) provides that “ [ f]or purposes of developing
or assisting in the development of any regulation or enforcing the
provisions of this chapter, any person who generates, stores,
treats, transports, disposes of, or otherwise handles or has
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handled hazardous wastes shalt, upon request . . . furnish
information relating to such wastes and permit such person at all
reasonable times to have access to, and to copy all records
relating to such wastes.”
The Agency’s statutory information gathering authority is broad
enough to allow EPA to seek any information that is reasonably
calculated to lead to information about the release. Although EPA ’s
authority is broad under section 104, the Agency is sensitive to the
substantial burden that may be imposed upon parties who receive
an information request. Most regions have model 104(e) letters.
Additionally, OSRE has compiled a repository of sample questions
to help streamline the information gathering process. (See Chapter
3 references, page 215.) These questions were compiled from the
regions and are tailored to specific kinds of parties (e.g., small
entities, transporters, individuals). Use of these samples is at the
region’s discretion.
3.3.1
Identity Records obtained through the review of files may contain a
number of potential sources of information and names of PRPs.
Recipients/Draft
Before drafting the information request letter, the PRP search
Information
team should:
Requests
• develop and maintain a list of potential recipients of
information request letters;
• select who from the list should receive information request
letters;
• verify the current addresses of recipients; and
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• make decisions on the tone, content, and format of each
letter, depending on the individual recipient or category of
recipient.
Although site-specific needs will ultimately determine what to
include in an information request, the following factors should
generally be considered when drafting information request letters:
On-Line Information Sources
On-line services are a rapidly growing source of PRP information.
Obtaining information through on-line research is, in some cases,
the fastest and most effective method of obtaining PRP
information; however, the difficulty with this type of research is
knowing what is available and how to access it.
Most on-line sources are available nationally and can be accessed
through the internet, but some are not available in every EPA
region or state. If this is the case, public libraries, universities,
colleges, or schools can be contacted to determine their
capabilities and use requirements. These institutions frequently
provide services for minimal fees. In addition, contractors typically
have numerous on-line capabilities.
A list of potential PRP-related on-line information sources is
provided in Appendix I. Contact numbers and fee schedules, where
available, are listed, but PRP search staff should start by
contacting their regional LAN administrator, information support
staff, or EPA librarian to determine what subscription on-line
sources are currently available in the region and if any use
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restrictions apply to them. EPA’S Superfund Enforcement Directory
(SFED) is a nationwide on-line directory of Superfund Enforcement
personnel and resources. (See Appendix) for more information
concerning the directory.)
Nature of Recipient
The nature of the recipient (e.g., individual, corporation,
municipality) significantly affects the content of the information
request. Where feasible, information requests should be tailored to
each PRP or information source. Tailoring the request can greatly
improve the quality of the response, reduce the need for follow-up
requests, and reduce the burden on the recipient of the request.
The types of information typically requested from each kind of PRP
(e.g., owner, operator, transporter, generator) are presented later
in this section.
Recipient’s Understanding of CERCLA
The PRP search team should consider the degree to which an
information request recipient is likely to understand CERCLA. It is
not always feasible to ascertain a recipient’s degree of
understanding of CERCLA; however, the PRP search team can
usually make some assumptions. For instance, it can assume that
“ABC Corporation,” which has been involved as a PRP at a number
of Superfund sites, has a good understanding of CERCLA. Thus,
the information request letter can use technical and legal terms
which do not have to be described in detail. Similarly the team can
generally assume that a “Mrs. )oyce Smith” at a residential
address likely has little or no knowledge of CERCLA or legal
terminology. In this situation, the request should contain clear,
non-legal language and be as concise as possible. A sample initial
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information request letter for individuals or small businesses is
provided in Transmittal of Sample Documents for More Effective
Communication in CERCLA Section 104(e)(2) Information
Requests (June 30, 1995).
Confidentiality Considerations
If there is reason to believe that the recipient will be concerned
with the confidentiality of its response, the PRP search team
should insert confidentiality language into the information request
letter that is consistent with 40 CFR Part 2, Subpart B (40 CFR
sections 2.201-2.311). From a practical standpoint, it makes sense
to include this language with each request as it serves two
purposes. First, it defines the boundaries of a confidentiality claim,
reducing the likelihood of a general assertion of confidentiality.
Second, it makes clear to the recipient that EPA may have to
release information provided in a response. Also, the presence of
such language will reassure the recipient that the response will be
handled in an appropriate manner. Similarly, if EPA plans to use
contractors to review and organize responses, inserting language
in the letter identifying the contractor and explaining its duties
may help to reduce recipients’ concerns.
Pursuant to EPA’s CBI regulations, the PRP search team should
request that recipients segregate information being claimed as CBI
from non-CBI information. Segregation of this information can
improve future information sharing with other parties by allowing
for the quick release of information for which no claim of
confidentiality has been asserted.
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Recipients Willingness to Cooperate
Occasionally EPA has reason to believe that a recipient of an
information request may not be cooperative in responding to the
request or may take actions to avoid liability. This belief can be
based on past experience with the party, or on correspondence
pertaining to previous permit violations, police reports, state
investigations or interviews, or other documents. In such cases,
the PRP search team should consider including language in the
information request letter that asserts EPA’s authority and
describes the recipient’s responsibilities. For instance, the False
Statements Act (see Chapter 3 references, page 215) provides for
criminal penalties for any person who provides unsworn false
statements or conceals information from an agency or department
of the United States. This Act clearly applies to statements made
to civil investigators, any written responses to questions, and
signed statements. The letter might also note that a party would
be in violation of the Federal Debt Collection Procedures Act (see
Chapter 3 references, page 215) if he transferred property or
assets to avoid a federal debt under CERCL4.
The PRP search team may also ask the recipient to send copies of
requested documents to EPA and to maintain the original
documents for a specified period of time. The primary benefit of
requesting the preservation of records is notifying parties of their
legal duty to preserve relevant evidence. The region should
consider these factors when deciding on inclusion of preservation
language.
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Site/PRP Information Needed
The PRP search team should determine:
• what information is needed to identify PRPs (e.g., manifest
data, names, addresses);
• what information is needed to determine PRP’s liability
(including possible defenses to liability); and
• what site information is needed for future investigations or
response actions (e.g., physical characteristics of the site,
historical data, sample data).
Once this information has been gathered, the PRP search team can
draft the letters to ensure that the responses will contain
information that will advance the PRP search and the site cleanup.
The repository of sample CERCLA 104(e) questions cited in
footnote 3 includes questions grouped according to site type, such
as mining site questions, PCB site questions, and lead battery site
questions.
Need for PRP Financial Information
Under CERCLA section 104, the Agency has the right to collect
financial information in order to determine a PRP’s ability to pay
response costs or perform response work. Although it is important
to assess a PRP’s ability to pay response costs, the PRP search
team needs to evaluate the best time for seeking such
information. The team may choose not to request this information
in the first round of information requests unless the liability of the
recipient as a PRP has been reasonably established. Some regions
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have found that seeking information such as tax returns and
checking account statements during the first round of questions
has been counterproductive. Recipients of information requests
who are asked to provide financial information about the site in
their first contact with EPA are often reluctant to do so because
they feel it is an unnecessary burden or intrusion on them and
may seek legal counsel to prepare a response or protest to the
Agency. Such actions can lead to delay in getting information
needed to coalesce PRPs and initiate a site response. Therefore,
EPA may wait until it issues general notice letters and ask
recipients to contact EPA if they believe they may have an ability
to pay problem. EPA can then send appropriate financial questions
to the PRP. In this way, recipients without ability to pay problems
avoid having to answer financial questions and submit voluminous
financial records.
When an information request letter concerns a removal action, it
may be necessary to solicit financial information from PRPs so that
the region can decide whether to issue a CERCLA section 106
administrative order requiring the PRPs to conduct the removal.
Desired Format and Due Date for Response
When developing the information request, the PRP search team
should select an appropriate format for the response. There are
several options, including:
• a written response for each question;
• a fill-in-the-blank checklist; and
• a written response, signed by the recipient of the letter or a
corporate officer, describing their efforts to locate
documents or knowledgeable persons.
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The format will likely vary from site to site or party to party. In
addition to the format, consideration should be given to how much
time the recipient may need to adequately respond to the request.
Time is often of the essence; information requests typically
provide 30 days from the receipt of the letter for a response.
Methods for facilitating timely, complete responses include:
• Establish an information repository or publicly accessible
website related to PRP search activities before or
immediately after issuance of the first round of information
requests. The purpose of such a repository or publicly
accessible website is to make available non-confidential
information to assist recipients of the information requests
in better responding to the request, reduce the number of
inquiries or requests to the Agency for information, and
provide information to the community at an early point. 3
The nature and location of a repository or publicly accessible
website may vary from site to site. One region, with
assistance from a contractor, developed a database for the
repository. Physical locations have included regional offices,
state and county facilities, and rental space at facilities that
manage records and provide chain of custody services.
Contents of the repository could include;
• site history,
• environmental studies, reports, and sample data,
• copies of notice letters/information request letters;
• previous site response reports, if applicable (e.g., an
OSC report), and
• a copy of CERCLA, the NCP, and relevant guidance,
3 For more information on sharing information with PRPs, consult Releasing
Information to Potentially Responsible Parties at CERCLA Sites (March I, 1990) See
Chapter 3 references, page 215
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• Initiate a dialogue with information request recipients
immediately after issuing the information requests. Such a
dialogue could be in the form of a “town meeting” at which
the PRP search team;
• explains the information-gathering process,
• explains why information request recipients received
their information request,
• presents factual site information,
• identifies the location and purpose of the repository,
• explains the Agency’s authorities and the recipients’
responsibilities, and
• provides copies of site summaries.
Where the information requests are issued concurrently with a
notice letter to perform the RI/FS or some other response action,
this dialogue provides an excellent opportunity for PRPs to
coalesce as a group, exchange information with each other, and
assure that better and more timely information is provided in their
responses.
Potential Burden of Responding to Request
Responding to an information request letter imposes a burden on
the recipient. Therefore the PRP search team should review the
generic list of questions to narrow or eliminate questions that are
not appropriate for the individual recipient.
Type of Information Needed
Information that is collected generally can be classified as either
quantitative or qualitative:
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Quantitative Data. This is typical waste-in information --
gallons, drums, cubic yards, and other numerical descriptions of
the materials contributed by the parties.
For most sites, the information of interest will likely be
quantitative. It can include either waste volumes (including
waste-in, waste-out, or waste remaining, depending on the
circumstances), or narrative descriptions that can be converted
into waste volumes.
Qualitative Data. This includes all other information that
describes a party, its waste material, or its relationship to a site,
and can range from a substance name (e.g., waste oil, trash), to
the nature of a transaction (e.g., sale, manifested disposal), to
information relevant to PRP status (e.g., a contract confirming that
a party conveyed property with knowledge of contamination).
For owner/operator sites, specific kinds of information may be
required when certain liability issues are raised. For instance,
when the Agency seeks to establish successor liability, it is
important to gather as much factual information as possible
regarding the relationship of the alleged successor to the prior
owner/operator. Consequently, if a corporation may be the legal
successor in interest to a PRP business/corporation, questions
seeking information about that relationship should be included in
the information request sent to that corporation. Similarly, when
a parent corporation may be liable for the acts of its subsidiary
under the legal standard set by the United States Supreme Court
in the case United States v. Bestfoods, 524 U.S. 51 (1998),
information requests should seek factual information about the
relationship between the parent and its subsidiary. The case
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attorney should provide the questions appropriate to either a
Bestfoods or successor liability inquiry. More information on these
issues is provided in section 3.6.
Regulatory agencies often have relatively little information
concerning older sites, illegal disposal sites, and owner/operator
sites because the acts resulting in the release of hazardous
substances at these sites were not subject to a regulator’s
authority or were not closely monitored by a regulator. The
absence of detailed government documentation about such sites
makes the use of information requests all the more important.
Similarly, chemical formulator cases (i.e., generator cases based
on an Aceto theory of liability, where the Agency argues that
waste generation is inherent in a facility’s chemical formulation
operations) frequently cannot be built around information found in
regulatory files. When preparing information request letters for
such sites, the PRP search team should be particularly careful to
evaluate information about the site that is available from other
sources, and include questions in its information requests that
solicit the remaining information needed to establish liability.
Components of Information Request Letters
Although information request letters should be tailored to
individual recipients, listed below are some elements that are
commonly included and types of information that are commonly
requested from the various categories of parties:
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For All Recipients
The information request letter should:
• identify the site and briefly describe it;
• explain why the Agency thinks the recipient may have
information about the site;
• cite EPA’s statutory authority under section 104(e) of
CERCLA or section 3007(a) of RCRA to request information
(When determining the statutory authority under which to
request information, make sure that the official who has
signed the letter has been delegated the information
gathering authority for each statute identified in the letter.
For example, a letter that requires the production of
information pursuant to both CERCLA section 104(e) and
RCRA section 3007 may be challenged if the EPA official who
signs the letter has been delegated only CERCLA section
104(e) authority);
• indicate that the Agency plans to enforce its information
gathering authority in CERCLA section 104(e)(5); 4
• set forth the purpose of the request and its relationship to
the overall case;
• indicate that the response must be in writing;
4 As previously discussed, EPA should consider the recipients level of legal
sophistication and degree of familiarity with CERCLA when determining the content and
tone of the information request letter. It may not be desirable in every instance to cite the
enforcement provisions of CERCLA in the first round of letters.
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• indicate that the recipient is responsible for informing the
Agency if any information contained in the PRP’s response is
confidential and subject to protection under section 104(e)
of CERCLA;
• advise the recipient that it must supplement its response if
new information comes to light;
• inform the recipient that he may contact the Agency if he
has questions or needs clarification about what is being
requested; and
• clearly identify when the response is due.
For Owners
The information request letter should ask for:
• names and addresses of all known previous owners and
current owners;
• periods of ownership and type of ownership;
• a synopsis or analysis of the contractual agreements and
relationships currently existing or which existed in the past
between the parties;
• site history during their ownership, including activities,
operations, disposal practices, and site conditions, as well as
information on amounts, nature, and locations of disposal;
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• known disposal practices, substances, and location of
disposal under previous owners and operators of the facility;
• information on whether wastes were RCRA hazardous
wastes;
• identity of lessors, lessees, and terms of any leases,
including lease payment amounts, allowable and prohibited
activities under the terms of the lease, and whether there
have been attempts to enforce the provisions of the lease (it
is recommended that copies of leases be obtained);
• information related to exemption, defenses, and de minimis
status; and
• the names of individuals with control.
For Operators
The information requested from operators is similar to that
requested from owners, except that detailed descriptions of the
operations should be requested from operators. Operator
information requests should always request information to identify
present and past individuals in charge in order to identify persons
with more complete information regarding facility operations, as
well as persons who may be liable as operators of the facility
under the tests set forth by the United States Supreme Court in
United States v. Bestfoods.
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For Owners and Operators
• Questions about financial information generally seek to
determine a PRP’s ability to pay for or perform a cleanup,
and may include questions about comprehensive general
liability and environmental impairment insurance.
• When an owner/operator’s financial records survive, they
often contain the amounts and dates of customer invoices
and payments, and serve both as a primary source of
information and a secondary source of conversion rates,
which allow a customer’s “one load at $ 5.00” record to be
translated to an appropriate volume.
• Site financial records may be in the form of accounts
payable and receivable ledgers, copies of incoming and
outgoing invoices and checks, deposit slips, and customer
account statements.
• One of the most important categories of information to seek
from the owner/operator is the identity of possible off-site
generators or transporters associated with the site. Such
information may include:
• names and addresses, quantities, and materials sent
to or from the site; and
• any arrangements made with regard to materials.
• Materials Handling Information. Ask the owner/operator
to provide a description of information it has on each
shipment of materials disposed of, transported to, stored, or
treated at the site, including:
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• dates of shipment or disposal;
• quantity and nature of the materials;
• hazardous substances (as defined in 40 CFR section
302.4) contained in the materials, including
information on the waste and waste stream as
possible RCRA hazardous wastes (this information
will help the Agency determine if RCRA is an
applicable or relevant and appropriate requirement
for future response actions, or may be used later in
an allocation of PRP responsibility); and
• what was done with the material after it reached the
facility (e.g., further processing).
Documentation. Request copies of all business records
relating to activities at the site, including customer lists,
gate logs, batch reports and analytical test records, worker
notebooks, laboratory reports on samples of materials,
storage locations for handled items, ledgers, invoices,
accounts receivable and back-up income records for taxes,
correspondence, permit applications, operation reports,
deeds and leases, and spill notifications. Also, consider
asking for correspondence that addresses shipments that
were discontinued because the material was not accepted or
correspondence that threatens to discontinue shipments if
material does not meet standards. This information may be
very useful in distinguishing the hazards and threats posed
by materials associated with various PRPs.
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Additional Items to Request from Owner/Operators
• names and addresses of individuals who have information
regarding the items listed above;
• any data or studies resulting from environmental
investigations at the site;
• a description of the files searched by the person (or
corporation) in response to the Agency’s request;
• special information for particular classes of sites, such as
municipal landfills; and
• a description of the recipient’s personal or corporate
relationship to the site.
In some cases, the recipient will be unable to provide EPA with the
information sought. In these cases, the PRP search manager may
determine that it is necessary to require the recipient of the letter,
or a corporate officer responding for a corporation, to describe the
efforts made to locate information or knowledgeable persons, and
to sign the entire response under penalty of perjury.
For Generators/Transporters
Generator/transporter information requests are often issued in the
follow-up phase of the PRP search based on information received
from the initial round of information requests. The PRP search
team is encouraged, however, to identify and issue requests to
generator/transporters as early as possible in order to establish a
core group of PRPs to work with and facilitate determining which
parties are exempt, de minimis, insolvent, or defunct.
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Information request letters to persons who arranged for disposal
(generators) and transporters are typically similar in scope to the
letters issued to owners/operators. Information request letters
issued to generators should request information regarding their
liability. The PRP search team should give special attention to
corporate/subsidiary and successor liability issues. In addition, the
information request should seek information that will establish
whether the substance was a listed or characteristic hazardous
waste as defined by EPA. Generator/transporter information
requests are discussed in further detail in subsection 3.3.1.
3.3.2
Mail and Track To the extent possible, PRP search managers should arrange for
Information the verification of the address, and identify an appropriate point of
contact (e.g., registered agent, corporate counsel) for each
Requests
recipient prior to mailing information request letters. While
For Generators! . .
confirming this information may be burdensome at sites with
Transporters hundreds of recipients, it can greatly reduce the number of letters
that are returned due to an incorrect address.
Information request letters should be sent via certified mail, return
receipt requested. Delivery may also be accomplished through
Federal Express. Use of post office box addresses should be
avoided because there may be no signature to indicate receipt of
the letter. Date stamp the “green cards” (i.e., the returned
receipts) as they are received by EPA; returned receipt cards often
do not show the date on which the letter was received, and it is
difficult to take enforcement action for late responses without
proof of when the information request letter was received. The
information on the return receipt provides the Agency with proof
that a representative of the recipient received the letter. Within a
week of the mailing, there will likely be some letters returned to
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EPA due to reasons such as “address unknown,” “no forwarding
address,” or “refused receipt.” Information request letters may
also be sent via air courier if the courier provides documentation of
the delivery attempt and of the receipt of the delivery. For letters
with address problems, the PRP search manager should attempt to
obtain a valid address for the intended recipient and re-send the
information request. Although this requires some effort, any effect
on the schedule will likely be relatively minor and the rewards
from successful delivery could be significant. Tracking information
request letters should be planned in advance of their mailing (See
subsection 3.3.2).
Performing an analysis of the responses received is among the
most important elements of the PRP search. The PRP search plan
should designate the person responsible for tracking and receiving
information requests. Information request letters are a basic
component of most PRP searches, and responses may be the only
source of information. Consequently, it is very important that the
responses are reviewed by appropriate personnel in a timely
manner. Summaries of responses, which are often created with
contractor support, can be quite useful when a large number of
parties or requests are involved.
For those letters that are unclaimed or refused, the PRP search
manager should work with the case attorney to identify options for
successful delivery. If you are confident that you have the correct
address of a PRP and the letter is continually being refused, the
letter can be delivered by the CI or search manager. When parties
fail to comply or only partially comply with information requests,
the Agency will consider its options for encouraging or compelling
compliance, which are discussed in detail in sections 4.1 and 4.2 of
this manual.
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3.3.3
Analyze Responses Responses to information requests should be analyzed for:
• information that links a party to the site;
• information establishing liability;
• information that establishes a PRP’s financial viability, if
necessary; and
• leads that may provide the region with additional
information about a particular PRP, other parties, or site
characteristics.
Information request responses may help the PRP search team
develop a history of site activities and describe the involvement of
various parties in the treatment or disposal of hazardous
materials. The PRP search team should take care when extracting
information on site history for the baseline PRP search report,
especially when responses are from hostile, uncooperative parties
or those with significant liability concerns; there are often
conflicting interpretations of a sites chronology of events.
Responses can be compared to aerial photographs, state permits,
correspondence, and other information in an attempt to verify site
history. The team member who reviews a response should note if
the response appears incomplete or false. In these situations, the
PRP search manager and case attorney should determine the
appropriate enforcement action.
After analyzing the responses, the PRP search team can begin to
develop a list of parties associated with the site who may be PRPs.
It is suggested that the team present PRP liability information in
evidence summary sheets created expressly for documenting the
liability of each PRP. A separate evidence sheet for each PRP is
advisable.
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A PRP’s assertion of a CBI claim on information that it provides to
EPA necessitates treatment of it as CBI unless and until such time
as OGC or ORC determines that the information is not entitled to
confidential treatment. 5 PRP search managers should segregate
any materials respondents claim as CBI from non-CBI materials
upon receipt of the information if the respondent has not already
segregated the materials. CBl is a complex issue and it is
important to follow in making CBI determinations, as the improper
release of CBI can result in civil and criminal penalties. The
materials for which a CBI claim has been asserted can then be
forwarded to OGC or ORC for a CBI determination. See 40 CFR
section 2.201, 2.204(a) and (b), and 2.310.
3.3.4
Develop Response After analyzing the responses to the information request, it may
be helpful to develop summaries of all the responses received.
Summanes
Response summaries aid the development of site history and
encourage PRP involvement. Summaries can be very useful for
decision makers or other parties involved in the PRP search, who
can review the summaries rather than each individual response.
Contractors can be called upon to assist the Agency in developing
response summaries for cases with numerous information
requests. Care should be taken, however, to avoid having
contractors perform legal analyses or reach conclusions about
PRPs’ liability, as these functions must be performed by EPA
personnel.
40 CFR section 2.20 I et seq. (see Chapter 3 references, page 215) sets out the
procedures for making CBI determinations EPA may determine the confidentiality of
business information as soon as it is received (See 40 CFR section 2 204(a)(2), authorizing
EPA to make a C 131 determination even though no request for release of the information has
been made.)
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3.3.5
Information Request Once the due date for a response has expired and the responses
have been reviewed, the PRP search manager should coordinate
Followup
with the case attorney on appropriate followup actions, if needed.
These actions may include:
• issuing a followup letter;
• using alternative means to seek a response or clarify the
request;
• issuing an administrative order to compel compliance; and
• initiating a judicial action asking a court to compel
corn pliance.
During the review of information request responses, it sometimes
becomes apparent that the recipient simply did not understand
what was being requested, or the recipient did not fully appreciate
the Agency’s authority to obtain information or the recipient’s
responsibilities in this regard. A followup letter may be appropriate
for clarifying the requests or being more explicit in describing the
Agency’s enforcement authorities. There are a number of model
followup letters available in the regions that have proven to be
effective.
Alternative means of seeking responses to information requests
are routinely employed in the regions. In some situations, it may
be appropriate to place a telephone call to the recipient in order to
determine the basis for a lack of response (e.g., more time is
needed, clarification is required). A telephone call should be
followed up in writing to document the nature and content of the
call. In other situations, a personal visit to a recipient to discuss
the information request has been effective in obtaining requested
information. Consider using a less time-consuming approach than
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the previous two methods by developing a “speedy type memo”,
such as a generic pre-formatted “post-it”-type memo that is filled
in and mailed to the recipient for a response along with the
original information request. This could serve as a simple follow-up
method of seeking clarification of the response or requesting
additional information. When using any of these methods, the
resource requirements and time involved for followup actions must
be weighed against the potential gain to the Agency and other
PRPs.
Administrative subpoenas, penalties, and administrative and
judicial actions to compel compliance with information requests are
discussed in sections 4.2 and 4.3. Due to the time-intensive nature
of these actions, they are usually reserved for the follow-up phase
of the PRP search.
3.4
Conduct
Interviews complement the collection of relevant site records and
aid in the development of site-specific information that may not be
recorded in government and PRP documents. They are another
tool for collecting or clarifying information on PRPs, other parties
who may have information, site history, disposal operations,
locations of disposal, or other issues relevant to the PRP search.
Interviews also may help identify the existence of relevant
documents such as business and hauler licenses, landfill permits,
zoning permits, and building permits.
The PRP search team should ascertain what the state bar rules are
for providing notice to the attorney representing a business entity
before current employees, and in some cases former employees,
are interviewed. The rules of professional conduct for attorneys
vary from state to state, so it is important to determine what rules
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apply in each case. These rules often consider employees to be
part of the corporation or business, with the result that the
corporate attorney may have a right to be notified of the interview
and to be present for it. These considerations may apply even if
the EPA attorney is not present, as CIs, contractors, or private
investigators can be said to be working “at the direction of the EPA
attorney.” Violations of these rules could subject the supervising
attorney to a range of sanctions.
3.4.1
Interviews are generally performed to identify additional PRP5 or
Interview
gather evidence for liability determinations. If site documents do
Considerations . .
not exist, interviews may be the only method available to obtain
the information needed to complete the search. The interview
questions, therefore, should generally focus on whether the
interviewee:
• may have participated in the activity being investigated; or
• may have witnessed the activity.
If site documents do exist, interviews may help clarify the content
of the documents or identify additional leads. The interviewer may
also attempt to determine how the documents were prepared, how
to gain access to documents not already in the Agency’s
possession, and how to authenticate documents, if necessary.
Interview questions should focus on whether the interviewee:
• has knowledge of how the documents were compiled and
who compiled them;
• is in possession of the documents; or
• may have additional information.
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Factors to consider when deciding whether to conduct interviews
include:
• nature and volume of information already obtained;
• nature and volume of information potentially to be gained
from interviews;
• time required to plan, coordinate, and conduct interviews;
• timing considerations (how interviews fit into scheduled site
activities);
• capabilities and availability of interviewer;
• location and availability of interviewees;
• sources of interviewees;
• documentation or admissibility requirements (i.e., are
written summaries, taped interviews, or signed statements
admissible?); and
• canons of ethics and disciplinary rules.
Nature and Volume ConsIderations
If the nature and volume of information already obtained is
sufficient to meet the PRP search objectives, conducting interviews
may not be necessary. Although interviews generally provide
useful information, the nature and volume of information
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potentially to be gained from an interviewee should be weighed
against the time and effort necessary to plan, coordinate, and
conduct the interview.
Timing Considerations
Interviews require time, money, and personnel skilled in
conducting interviews. Timing considerations may dictate that only
a few interviews be conducted during the initial phase of the PRP
search, and further interviews be postponed until the follow-up
phase. In some circumstances, however, the value of an interview
to the PRP search may be great enough to justify delaying
completion of the PRP search report. EPA encourages conducting
interviews early in the information gathering process whenever
possible (e.g., concurrent with the “file review and record
collection” search task) rather than issuing many rounds of
information request letters. This is particularly true when gathering
information from owner/operators and employees of
owner/operators. Often, the persons most knowledgeable about a
site are those who worked there. As time passes, their memories
become less clear and they are less likely to be available, so it is
best to gather information from them early in the PRP search.
Interviews, however, should complement information request
letters, not be used in lieu of them.
At PRP search pilot sites, early use of interviews in place of
multiple rounds of 104(e) information request letters was found to
be particularly helpful. A number of PRP search teams reported
that early interviews were a considerable aid in understanding the
nature and history of the site. Getting this information early
allowed them to focus the remainder of the PRP search more
effectively, and also helped them plan a better investigation of the
contamination at the site.
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Capabilities of the Interviewer
When deciding to conduct interviews, the capabilities and
availability of qualified Agency personnel are an important
consideration. Interviews should be planned far enough in advance
to allow the interviewer to become familiar with the site, PRP
search strategy, and pertinent questions.
Participants in the PRP search pilot program reported that much of
the success of early interviews can be attributed to the personal
contact between the interviewer and the persons being
interviewed. PRP search personnel noted that interviews are often
a more effective information-gathering tool than 104(e) letters.
Interviews may have several advantages over written contacts:
• An interviewer can follow up immediately on important
statements, rather than send another letter.
• People generally give broader and more valuable answers
when being interviewed in person.
• Eye-to-eye contact allows the interviewer to better judge
whether an interviewee is forthcoming and truthful.
• Interviews with persons who are cooperative but elderly, ill,
or illiterate often generate useful information that a
104(e) letter would not.
It is helpful to have access to civil investigators early in the PRP
search process to assist with interviews. Individuals who will not
consent to be interviewed should be sent a 104(e) letter or
subpoena if the potential testimony is determined to be relevant.
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Location and Availability of Interviewees
Another important consideration when evaluating use of interviews
is the location and availability of potential interviewees. Ideally, all
interviewees would live in close proximity to one another and
relatively close to the regional office. Interviewees, however, are
often scattered across the country, located in another country, or
unwilling to be interviewed. The PRP search team should balance
the value of each potential interview against its cost in time and
money and then prioritize the interviews. The age and potential
disabilities of an interviewee should be taken into account when
balancing the value of an interview against available resources. As
discussed above, sometimes an interviewer can obtain information
that would not be provided in a 104(e) response. If resources are
not sufficient to conduct face-to-face interviews, interviews can be
conducted on the phone.
Documentation and Admissibility Requirements
When considering the use of interviews as an information
gathering tool, it is important to determine the intended use of the
interviews. An Agency employee’s notes from an interview
generally have less evidentiary value than a 104(e) response
signed by a PRP, and may not be admissible at trial. Concerns
about the evidentiary value of information obtained in an interview
may determine who should perform the interview, when the
interview should be conducted, or whether the interview should be
conducted. If the Agency desires to produce evidence that will be
admissible in court, then a route other than interviews typically
should be pursued. 6
6 lhere are caveats to this statement In general, recorded or signed statements
gained from interviews can be useful in litigation, even though not admissible at triai as
evidence. See Federal Rules of Evidence 801 through 817, Chapter 3 references, page 216
for more information on the use of recordings and signed statements
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3.4.2
Who Performs the Interviews should be performed by EPA staff who have experience
or specialized training in how to conduct interviews. They are
Interview
usually performed by CIs, but in some instances case attorneys,
paralegals, and RPMs have performed or participated in interviews.
Interviews should only be conducted by personnel who have been
trained in interviewing techniques and evidentiary collection
processes. It is important that the interviewer be familiar with any
state due process requirements that may apply at the site in
question and with ethics rules or local bar rules concerning the
admissibility of evidence. Consultation with all case team members
is strongly advised before interviews are conducted.
Sworn Statements
Civil investigators play a critical role in exercising the Agency’s
authority under CERCLA sections 104(e) and 122 (e)(3)(b). They
and other trained personnel generally collect information from
individuals by conducting interviews pursuant to section 104(e).
Typically, the CI will record the interview on tape or in writing.
These records do not constitute “sworn statements” because CIs
are not authorized to administer oaths subject to the penalties of
perjury. Federal law, 18 U.S.C. §1621, provides that to commit
perjury, a declarant must “ [ have] taken an oath before a
competent tribunal, officer, or person in any case in which a law of
the United States authorizes an oath to be administered.” (See
Chapter 3 references, page 216.) Thus, to administer oaths, a
person must be an officer of the court. Short of an amendment to
CERCLA, CIs cannot, by themselves, obtain sworn statements.
There is no legal impediment, however, to CIs obtaining signed
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statements. Signed statements can be quite valuable in court
proceedings. See subsection 3.4.5 for more information on signed
statements.
Interviewees are typically persons who may be able to identify or
locate PRP and site documents. After a thorough review of
collected site information, the PRP search team should develop a
list of potential interviewees by name and address. Once the list is
developed, the PRP search manager should prioritize the
interviewees based on factors such as age or condition, plans to
move out of the area, or one of the factors listed above in
subsection 3.4.1. The PRP search manager should also review the
prioritized list of interviewees in light of resources available (time,
staff, and money) to conduct the interviews.
Potential interviewees include:
On-site Visitors
• vendors
• recyclers
• inspectors
• customers
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Identifying
Interviewees
Site Operators and Employees (Present and Past)
• plant manager
• supervisors
• gate and scale operators
• contractors
• transporters (truck drivers)
• plant engineer
• equipment operators
• plant workers
• companies
• RCRA Subtitle D waste
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• federal courts
• national law enforcement
agencies
• Department of Veterans
Affairs
• U.S. Postal Service
State Government Officials
• environmental agencies
• registry of motor vehicles
• attorney general
• probate/superior courts
Local Witnesses
• police officers
• city/county clerks and
assessors
• local government
• county health department
• local library
• bankruptcy courts
• Securities and Exchange
Commission
• Occupational Safety and
Health Administration
• bureau of vital statistics
• secretary of state
• professional licensing board
• department of public health
• firefighters
• neighbors
• building inspectors
• meter readers (water, gas,
electric)
• historical societies
Before conducting interviews, the interviewer should become
familiar with the site and the information needed by:
• reviewing EPA background information on the site;
• obtaining names of state or local government agencies and
officials involved with the site; and
• generating a list of site-specific questions.
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Preparing for and conducting the interview may involve:
• preparing a general outline of discussion points;
• determining whether the interviewee is represented by an
attorney;
• knowing the elements of liability and the Agency’s case;
• understanding the industry in question, thereby establishing
the interviewer’s credibility;
• using visual aids to aid the memory of interviewees;
• preparing specific questions beforehand to ensure that all
topics consistent with the PRP search strategy are covered;
• having two persons present at the interview, if possible, one
serving as the note taker, the other as the primary
interviewer (another potential benefit of having two persons
present is that any charge of intentionally making false oral
statements needs to be corroborated by two persons in
order to gain a conviction);
• considering whether an EPA attorney should attend the
interview if the interviewee’s attorney is going to attend;
and
• determining the interviewee’s association with the site and
the basis of her knowledge (e.g., first-hand information,
rumors).
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Interviewing federal, state, or local government officials can be
very productive because these officials, especially state and local
officials, often have an intimate knowledge of the site. Contact
with government officials is generally made by telephone or, if
necessary, by letter or in person. Because of the civil investigator’s
experience in conducting interviews, and their peer relationship as
government employees, it is highly recommended that regional
CIs, rather than contractors, conduct interviews of other
government personnel. Telephone calls will suffice in most cases.
If a contractor is conducting the interview, the contractor should
identify himself as an EPA contractor conducting background
research on the site or have a letter of introduction from EPA if the
interview is being done in person. The most important criteria for
selecting the interviewer are experience and knowledgeability.
Government officials should be asked about:
• the availability of relevant documents in the government’s
files;
• whether and how copies can be obtained;
• activities on the site before, during, and after the site’s
suspected use for waste disposal;
• PRPs associated with the site;
• site enforcement history, including any notices of violation
(NOVs);
• administrative or legal actions involving the site and the
PRPs, and the location of relevant documents;
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• relevant state or local regulatory requirements and the
location of pertinent documents such as landfill permits,
building permits, and zoning ordinances;
• any news media articles about the site; and
• other possible knowledgeable people or organizations.
Former government employees are also a potential source of
information. Attempt to work out an acceptable arrangement with
officials or attorneys for the relevant agency, even if the scope of
the interview is limited. After obtaining the approval of the former
employee’s agency, the former employee should be contacted to
request an interview, just as with other private parties. As always,
contractors performing interviews should be required to obtain
approval from the PRP search team before contacting
interviewees.
Interview Facts and Tips
Although the CI and other regional staff conducting interviews
should take advantage of training in interview techniques available
from a variety of sources, the following list contains basic tips to
keep in mind when conducting interviews:
• Attempt to obtain information from more than one source.
• Obtain factual information regarding the background of the
interviewee.
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• If an interviewee requests anonymity, investigators do not
have the authority to grant anonymity and, depending on
the type of statement made during the interview, even the
DO) trial attorney may not have that authority. 7
• Consider hiring a private investigator who is skilled in
interview techniques to conduct interviews.
• Obtain the cooperation of the interviewee; the interview
may be a precursor to a deposition. Cultivate the
interviewee, establish a relationship of trust, and never lie
or deceive.
• Obtain background information about records. This is
important for determining the credibility of the interviewee
and the reliability of records. Find out who prepared the
records and, how, why, when, and from what source they
were prepared.
• Verify the accuracy of information from other sources (e.g.,
use one interview to support another). Use documents to
confirm information whenever possible.
• Attempt to pin down numbers (e.g., “How many drums were
there? More than 10? More than 50?”).
• Conduct interviews in a businesslike manner with
professional demeanor.
Many investigators advise the interviewee that they (the EPA investigators) will
forward a request for anonymity to an official who has authority to grant the request, then
offer the party the following options (1)10 discontinue the interview until assurance can be
given, or (2) to go through with the interview even though anonymity has not been granted
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• Use language that is understandable to the interviewee;
avoid acronyms and technical or legal jargon.
• Do not assume that you know what the interviewee is
saying; clarify when in doubt.
• When arranging the interview environment, consider
individual or cultural “zones of comfort” regarding seating
and privacy.
• Ask the same question a variety of ways.
• Paraphrase and repeat to the interviewee to ensure a
mutual understanding of what is being said.
• Let the interviewee get through his story once before
challenging or asking detailed questions.
• Attempt to resolve inconsistencies in the interviewee’s
responses before leaving the interview.
• Conclude the interview by summarizing important
information, asking if the interviewee can think of anything
else that was not covered, establishing a way to keep in
touch (e.g., provide a business card), and attempting to
obtain any documents identified during the interview.
• Early interviews can sometimes advance the PRP search
process more quickly than sending 104(e) letters to the
same individuals. For example, an early interview of an
owner/operator helped the PRP search team in one region
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better understand the business practices leading to
contamination of the site. The general manager was able to
show PRP search personnel how business records were kept
at a treatment and storage facility and how to read those
records. The region was then able to identify other PRPs
and use its enhanced understanding of how the site had
operated to write more specific 104(e) letters for those
PRPs.
It is suggested that the interviewer indicate in her interview notes
what can be substantiated and what is speculation.
3.4.5
Interview Interviews are generally documented in one of three ways:
Documentation
1. Written summaries;
2. Recorded interviews; or
3. Sworn statements (affidavits) confirmed by a notary (shouki
include a statement to the effect that the declarant/affiant
swears under penalty of perjury that the aforegoing is true
and correct).
Signed statements become “sworn statements” if notarized.
A written summary of an interview is a document summarizing
the facts presented by the interviewee, which are then organized
and summarized in the interviewer’s own words. Although the
summary should be written in the third person, it may be helpful
to include direct quotes from the interviewee within the text,
especially when the quotes are particularly incriminating,
descriptive, or inflammatory. Setting aside such language in
quotes allows the information to be conveyed to the reader
without bringing the interviewer’s neutrality into question.
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The written summary should begin with a heading that includes
the interviewee’s name, title, address, phone number, and other
identifying information; the date and time the interview was
conducted; and the identity’bf others present, including the
interviewer. If records were provided during the interview,
describe the records in the written summary and state where they
were obtained. If visual aids were used during the interview, note
when and where they were used and attach copies to the report, if
possible. The written summary should be prepared as soon as
possible after the interview.
A recorded interview can only be obtained with the permission
of the interviewee. When recording an interview, the interviewer
should begin by recording an introduction that includes the
interviewer’s name, the date and time of the interview, the
location, and the interviewee’s name. The interviewer should ask
the interviewee if he understands that the interview is being
recorded, and verify that it is being done with his permission. Ask
the interviewee to spell his name, provide his address, and state
his date of birth. The interviewer also may ask the interviewee for
his social security or driver’s license number, but cannot compel
the interviewee to provide them. The interviewer can proceed with
the questions after concluding this introduction.
After the interview is over, verify with the interviewee that he
understood that the conversation was being recorded and that it
was done with his permission. The interviewer should provide a
closing that includes her name, the name of the interviewee, and
the date and time the interview ended. A transcription of the
recorded interview serves as the written record of the
conversation. After the transcription is completed, the original tape
should be secured in a safe location and the location of the original
tape and identity of the transcriber referenced in the transcript.
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In some instances the interviewee cannot appear in person and
the interview takes place by telephone and is tape-recorded. If the
interviewee agrees to the telephone conversation being taped, the
telephone conversation can be taped on a recorder containing a
beep tone warning. Before taped interviews are conducted over
the telephone, state laws pertaining to recording telephone
conversations should be thoroughly reviewed.
Signed statements are summaries of an interview that are
written in the first person and signed by the interviewee. The
interviewer should conduct the interview and take notes as usual.
However, the written summary of the interview should be in the
first person, as if the interviewee were writing the notes of the
interview herself. The interviewer may choose to summarize the
statement directly following the interview, or return with the
statement on another occasion. In either case, the interviewee will
read the summary and confirm that it represents the information
that she conveyed in the interview. She will then sign the
statement.
Although a written summary or recorded interview is useful and in
most instances adequate for the purpose of gathering information,
a signed statement can have a higher degree of credibility as
evidence. However, interviewees are sometimes not comfortable
signing a statement, and may ultimately choose not to sign the
statement after the interviewer has gone to the effort of preparing
it. Consequently, the purpose of the interview and the need for a
signed statement should be carefully evaluated before such a
statement is created and an interviewee is asked to sign it.
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The same database used to organize and track files and other
records may be used to store information concerning completed
interviews. All interview documentation should be assigned an
index number for easy retrieval.
3.5
Perform Title Objectives of the title search include:
Search
Primary Objectives
• identify past and present owners and operators;
• identify owners and operators at the time of disposal; and
• provide a chain of title.
Other Objectives
• obtain the deed for evidence;
• identify abutting properties and their owners;
• supply title search documentation;
• identify knowledgeable persons;
• determine site use; and
• identify outstanding liens against the property and types of
liens.
3.5.1
Determine Scoping a Title Search
Ownership Interests
The scoping process should focus on the history of both ownership
and site activities. Before beginning the title search, the
researcher will need to obtain information on the site location
(including the county in which it is located), a site description, and
specific Agency requirements for the title search. The researcher
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may be an EPA employee, a contractor, or a title company
subcontracted to the contractor. A survey of the site may be
required if the legal description or exact location of the site is
unknown. A survey may also be necessary if the site consists of
several parcels and the relationship between the parcel boundaries
and the site boundaries is unclear. A title search may also be
conducted for parcels adjacent to the site if the Agency needs to
obtain access from owners whose properties abut the site. In
addition, a title search for adjacent parcels may provide names of
people who are familiar with past or present site activities; these
people can then be contacted and interviewed. It also may provide
information about other activities in the area that may have
contributed to contamination at the site.
The PRP search manager, in consultation with the case attorney,
should specify site-specific title search requirements. Site-specific
determinations should include:
• the time period the title search is to cover;
• the area the title search is to cover (a legal description of
the site is best; however, county tax assessor parcel
numbers and the Street address are useful in the absence of
a legal description);
• whether certified copies of the title documents are required;
and
• the format of the title search results summary.
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Documentation
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Types of documentation that should be reviewed and, where
relevant, copied may include:
• warranty deeds
• quitclaim deeds
• deeds of trust
• leases
• administrator’s and
uniform executor’s deeds
• judgments
• mineral leases
• real estate contracts
• grant deeds
• mortgages
• easements
• trustee’s deeds
• Article 9 statements (part
of the UCC)
• financing statements
• plat maps
• liens (e.g., tax,
mechanics)
In general, title search companies provide a summary of the chain
of title and may also provide corporate information about the
owner of the facility. The review of title records usually will not
focus on additional information relevant to environmental
conditions at the site unless such information is specifically
requested.
3.5.2
Develop a “Title
Tree”
The next major step in the title search process is to develop a
“title tree.” A reference list of all recorded documents, including
their location (by book number and page number), should be
developed and added to the PRP search database. Recorded
documentation may include those documents outlined above.
Generally, a brief description of each transaction is provided,
including an indication whether the transaction affected all or a
portion of the site. This summary of site ownership history may
include:
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• the terms of the transaction (e.g., a 5-year recorded lease);
• whether the transaction transferred all rights to the land
(e.g., in mining areas it is important to know whether the
mineral rights were transferred with the surface rights);
• explanations of specific terms like quitclaim deed,
conditional sales contract, partial release of deed of trust
and mortgage; and
• charts and maps, if considered useful.
In addition, information should be obtained about past and present
owners if they are partnerships, corporations, or trusts. If the
property is owned by a partnership, obtain a copy of the
partnership agreement or the dissolution of partnership. If the
owner is a corporation, obtain the certificate of incorporation. If
the property is owned in trust, obtain a copy of the declaration of
trust, the trustee certificate, and the schedule of beneficiaries.
These documents are generally located in the office of the
secretary of state, not in the office where land title information is
located (typically the county clerk’s office).
The PRP search manager should review title search work products
to determine whether:
• the correct property was researched;
• the correct documents were provided;
• missing or unreadable documents exist;
• documents are incomplete;
• the property descriptions in the documents relate to site
property;
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• the chain of title is continuous (i.e., no gaps appear in the
chain); and
• leases and deeds were reviewed for restrictive language
concerning groundwater or land use.
A title search is usually considered complete when the ownership
history or “title tree” is clear and complete for each of the site
3.6 parcels.
Business Status
and Financial
• CERCLA section 107(a) identifies four classes of “persons”
Research who may be liable for costs incurred by the United States, a
state, or an Indian tribe and who may be liable to perform
future response actions at a site. (See discussion in section
3.6.1 1.2 of this manual.)
Introduction
• Individuals and a variety of commercial and governmental
entities may qualify as a person because of their own acts
and omissions or because of the acts or omissions of others.
(See CERCLA section 101(21) for the definition of “person.”)
• The PRP search should determine, for each PRP identified,
whether the person still exists, if the person is still viable,
and the exact name used by the person today.
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• In many cases, records gathered, such as manifests or trip
tickets, may identify a PRP as the PRP was known years ago.
During the time that has elapsed since the records were
created, the name of the entity may have changed and a
different business may be operating under the same name.
Therefore, it is crucial to trace each person from the time of
liability to the present so that EPA can correctly identify who
is liable to perform or pay for the cleanup.
• For individuals, a portion of this research is completed by
performing skip tracing and asset searches.
• Liability may extend beyond the assets and the earnings of
the person, depending on the type of person (e.g., sole
proprietor, partnership, corporation) and as provided by the
laws of the state in which the entity operates.
• Liability of a person may continue long after the original
person or business has ceased to exist. As a result, more
than one existing person may be liable.
3.6.2
The following is a general introduction to the forms in which a
Forms of Business
business may be organized. It includes a definition of each form, a
Organization . . .
brief description of the formalities required to begin the form, and
a simplified description of who is liable for the acts, omissions, and
debts of a business organized in that form. Formation and liability
of a business or commercial entity are governed primarily by the
law of the state in which the entity operates or is headquartered.
Identifying the specific business entity (or form) is necessary in
order to accurately identify the PRP, as well as collaterally liable
parties.
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[ Note: This section presents a general overview of the formation
and liability of businesses and may not be applicable to every
case. It is recommended that you consult with the appropriate
attorney in your region when assessing the potential liability of
PRPs associated with a particular site.]
3.6.3
Person In order to understand the significance of various business forms
as they relate to the CERCLA liability scheme, it is helpful to review
the definition of “person” in the statute. CERCLA section 101(22)
defines a “person” as “an individual, firm, corporation, association,
partnership, consortium, joint venture, commercial entity, United
States Government, state, municipality, commission, political
subdivision of a state, or any interstate body.”
As defined, each person can perform commercial acts, such as
opening bank accounts, buying or leasing property, selling
merchandise, borrowing money, and providing services. As a
consequence of these commercial acts, persons can be liable,
under both civil and criminal statutes, for the consequences of
their acts or failures to act. For instance, a partnership can be held
liable for damages caused by an employee of the partnership,
performing an act within the scope of his employment, who injures
another person. Obviously, the partnership could not be
imprisoned for criminal violations, but it could be assessed fines.
For civil actions, the partnership may be required to pay damages
or perform any other remedy required by a court judgment.
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3.6.4
Business The organization of a business, both in terms of the formalities of
creating a business and the structure or form of the business, is
Organization
governed primarily by state law. Almost all states have adopted all
or parts of several model laws, such as the Uniform Commercial
Code (UCC), the Model Business Corporation Act, and the Uniform
Partnership Act. Each state, however, has the authority to codify
its own requirements for those who wish to start a business.
The three most common business organizations are:
1. Sole proprietorships;
2. Partnerships; and
3. Corporations.
3.6.5
Sole Proprietorships Definition: Businesses owned and operated by an individual (or a
married couple). The business is regarded as an extension of the
person, with no legal or commercial distinction.
Taxation: The profits and losses of the sole proprietorship are
reported directly on the individual’s tax return and are normally
recorded on a Schedule C, which is attached to the individual
income tax return, Form 1040.
Ownership and Liability: All the assets of the business are
owned by the individual, the individual controls the activities and
direction of the business, and the individual is liable for all the
debts and obligations of the business. Accordingly, any asset
owned solely by the individual could be reached to satisfy any debt
of the sole proprietorship. For assets owned by the individual
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jointly with another individual(s), it may be necessary to research
the laws of the state where the asset is located or the individual
resides. This is especially true for non-business assets owned
jointly with a spouse.
Registration: A sole proprietorship is not generally required to
formally register to establish a business but may be regulated by a
variety of state and local agencies, often for reasons related to
health and safety, professional standards, or tax revenue.
Accordingly, a sole proprietor may need to file appropriate
documents in order to use a fictitious business name or to obtain a
business license.
3.6.6
Definition: Partnerships are associations of two or more persons,
as co-owners, to carry on a business for profit. Partners can be
General
people, other partnerships, corporations, trusts, or any other
Partnerships and
person as defined under state law. There are generally two types
Limited of partnership, general and limited.
Partnerships
Taxation: Even though the partnership itself is not required to
pay income tax, the partnership is required to file a return of
partnership income (Federal Form 1065). Attached to the
partnership return is Form K-i, which allocates all income or loss
of the partnership among the partners. Each partner then reports
its portion of the profit or loss on its own income tax return.
Ownership and Liability: Partnership property is owned by the
partnership, and may not be used to directly satisfy the personal
debts or obligations of the partners. Under specific circumstances,
however, a creditor may move to dissolve the partnership or sell
the debtor partner’s interest to resolve the personal debts of the
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partner. Although debts of a partner may not directly attach to the
assets of a partnership, the debts of the partnership may attach
directly to the assets of general partners.
3.6.6.A
Elements Specific Unless there is an appropriate filing in the state where the
business activity occurs to create some type of person such as a
to a General
limited partnership or corporation, any group of two or more
Partnership
persons (other than a married couple) that is formed for a
common business purpose normally falls into the category of a
general partnership. In a general partnership all partners are
general partners, i.e., they participate in the management and
operation of the business. Each general partner may bind or
legally obligate the partnership. Each general partner is entitled to
full information and disclosure about partnership matters and
business. Each general partner has a fiduciary relationship to the
others; that is, each owes the others his best efforts to make the
partnership as successful as possible. Typically, a general
partnership is formed by a written agreement that may or may not
be recorded with the county or the state in which the partnership
does business. A general partnership may also be formed by oral
agreement.
Ownership and Liability: Each partner is personally liable for all
debts and obligations of the partnership. Accordingly, the assets of
each general partner may potentially be reached by a creditor.
Assets of the partnership, however, belong to the partnership, and
may not be used to satisfy the personal debts of partners.
Registration: A general partnership usually does not require any
formal registration to establish the business, but may be regulated
by a variety of state and local agencies, often for purposes related
to health and safety, professional standards, or tax revenue.
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Accordingly, a partnership may need to file appropriate documents
in order to use a fictitious business name or to obtain a business
license.
3.6.6.B
Elements Specific Definition: A limited partnership is a business association of at
least two legal persons, one or more of whom are general or
to a Limited
managing partners, and the rest of whom are limited partners.
Partnership Limited partners invest capital in the partnership, but do not
participate in its management. They are investors, much like
shareholders in a corporation, entitled to distributions of profits,
but without any authority to direct or run the business (no
control). Limited partners may sell their interest without dissolving
the partnership and without the consent of the other partners.
Their withdrawal or death does not dissolve the partnership. A
statement or agreement of limited partnership must be in writing
and filed, either with the county in which the partnership has its
principal office or with the secretary of state’s office, or both.
Failure to file the appropriate papers and abide by the appropriate
state regulations for the state in which the business activity takes
place, may affect the limitation of liability that generally protects
the limited partners. As in general partnerships, general partners
have a fiduciary responsibility to the limited partners to put forth
their best efforts toward the success of the partnership.
Ownership and Liability: A general partner has unlimited
liability for the debts and obligations of the limited partnership. A
limited partner’s liability is normally limited to the amount of his
investment.
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Registration: A statement or certificate of limited partnership
must be filed with the secretary of state or equivalent and, when
required by specific states, with the county in which the
partnership has its principal place of business. The statement or
certificate generally identifies the partnership name, partnership
address, general partners, agent for service of process, and term
or duration of partnership. Partnership interests or percentages
may also be identified.
Corporations
Most states have adopted the Model Business Corporation Act or
the Revised Model Business Corporation Act, which lends
uniformity to the requirements for incorporation. Nearly every
state, however, has adopted different requirements for documents
that need to be filed, the jurisdiction for filing those documents,
the amount of disclosure required, and regulations governing the
sale of stock, among other items. These differences make it
necessary to become familiar with the requirements of each state.
Definition: The Corpus Juris Secundum (18 C.J.S. 2) explains
that a corporation is an artificial entity created by the law of its
state of incorporation. A corporation is made up of a body of
individuals (shareholders) “united as a single separate entity under
a common name” with a perpetual existence. For legal purposes,
a corporation’s status under the law is that of an individual, even
though one corporation may be a subsidiary or affiliate of another
corporation or corporations.
Although an artificial person, a corporation “is entitled to rights
under the law, and must enforce its own rights and privileges.”
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The “essential attribute of a corporation is the capacity to exist
and to act, within the powers granted, as a legal entity” separate
and distinct from its shareholders.
The characteristics of a corporation generally include:
• the capacity of perpetual existence;
• the power to sue or be sued in the corporation’s
name;
• the ability to purchase, own, and sell property and
real estate;
• the ability to engage in specified business as set
forth in its articles of incorporation; and
• any other characteristics and powers as provided by
statue.
“The law of the state of incorporation,” however, “determines the
status, nature and functions of a corporation.”
Taxation: Unless the corporation is a Chapter S corporation, it
files its own tax return and is responsible for paying the income
tax on the corporation’s earnings. Any divestiture of assets from
the corporation to the shareholders is identified as a dividend and
this dividend is taxed on the shareholders’ tax returns.
Ownership and Liability: Shareholders own stock in the
corporation. The corporation in turn owns the assets of the
corporation. Shareholders, officers, and directors are generally not
liable for the debts of the corporation. Shareholders are at risk to
the extent of their investment in the corporation.
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Regulation: Corporations must be incorporated under state law
and must comply with regulations applicable in that state in order
to maintain the corporation’s standing as a person. Corporations
must also register in the state in which they conduct business. In
some states, a corporation that has had its corporate charter
revoked no longer operates as a corporate person and may instead
be operating as some other type of entity (e.g., partnership,sole
proprietorship). In addition, corporations seeking to sell stock or
other securities to the general public are regulated by the
Securities and Exchange Commission (SEC), and must provide
substantial disclosure to the public, as noted in subsection 3.6.11.
3.6.7.A
Elements Unique to • Continuity. A corporation is established in perpetuity, and
can continue to operate even in the event of death,
Corporations
disability, or withdrawal by shareholders, directors, or
officers.
• Transferability of equity interest. Equity interest in a
corporation is evidenced by shares of stock, which can
generally be freely sold or transferred, subject to applicable
regulations.
• Constitutional rights similar to, but more restricted
than, those of a natural person. Constitutional rights
granted to corporations include protection from
unreasonable search and seizure, freedom of speech, and
the right to trial by jury. Constitutional rights not granted to
corporations include the privilege against self-incrimination
and privacy rights.
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• Separate existence as a legal person. A corporation
exists as a person at law, separate and distinct from its
shareholders, directors, officers, and employees.
• Claims of creditors. When a corporation is dissolved or
winds up its affairs, assets of the corporation must be used
to satisfy creditors first. Creditors must be notified and given
an opportunity to present a claim for payment. After all
creditors are paid, then stockholders are entitled to a pro
rata distribution of remaining assets, if any.
3.6.7.B
Classification of Public vs. Private Corporations
Corporations
In a public corporation, stocks or shares are listed on a stock
exchange such as the New York Stock Exchange, the American
Stock Exchange, or the NASDAQ, and are available for purchase or
sale either directly from the corporation or via a stock brokerage
firm such as Charles Schwab, Merrill Lynch, PaineWebber, or
Morgan Stanley Dean Witter. In order to offer securities for sale to
the general public, a corporation must provide a very high level of
disclosure, including disclosure of specified financial statements,
matters that are material to the economic existence or well-being
of the business, the identity of the corporation’s major
shareholders, and the identity of entities seeking to acquire major
stock interests. Such disclosures are filed with the SEC and are
required as long as the corporation remains publicly traded.
In privately held corporations, stock or shares are sold or issued
only to selected private parties, and are not offered or sold
publicly. Shares are often held by one person, a family, or those
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who incorporate the business, and shareholders are often directors
or officers of the corporation as well. Such a corporation is
generally known as a “close” or “closely held” corporation.
C vs. S Corporations
In C corporations, both the corporation and its shareholders are
subject to income tax. (The corporation is taxed on its net income,
and shareholders must report any dividends received from the
corporation as well as gains (or losses) on the sale of stock.) There
are no limits to the number of shareholders in C corporations, and
C corporations may be either publicly or privately held.
An S corporation is a corporation that elects to be taxed like a
partnership, such that the income of the corporation is allocated or
passed through to the shareholders. S corporations avoid the
double taxation of C corporations, since only the shareholders
report taxable income in the form of dividends or distributions. S
corporations are limited by law to 35 or fewer shareholders and
are normally privately held corporations.
Domestic vs. Foreign and Alien Corporations
A corporation is a domestic corporation in the state in which it
incorporates. It is a foreign corporation in all other states in which
it qualifies to do business. An alien corporation is a corporation
qualified to do business in a state in this country, but incorporated
in a different country, such as Great Britain or the Netherlands.
Consult OGC regarding the feasibility of imposing CERCLA liability
on foreign corporations, alien corporations, or holding companies
owned or capitalized by alien corporations.
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Profit vs. Non-Profit Corporations
Profit corporations are established as business enterprises whose
primary goal is to produce goods or services that may be sold for
more than it costs to make or furnish the goods or services. Even
though a for-profit corporation may not show a “profit,”
particularly on its tax returns, it remains a for-profit corporation by
virtue of the form in which it was incorporated. Non-profit
corporations are established to conduct a variety of enterprises,
but are distinguished from for-profit corporations in that dividends
are never distributed to stockholders. In general, non-profits do
not even issue stock. Non-profit corporations often manage
condominiums or common ownership associations, foundations,
and other beneficial enterprises.
3.6.7.C
Evolution of Name Changes
Corporations
All corporations must be authorized by a state in order to conduct
business in that state, and are granted the exclusive right to use
their corporate names as part of that authorization. As long as a
corporation abides by the appropriate state regulations, such as
filing annual reports and paying applicable state taxes and fees, it
maintains exclusive rights to this corporate name. The practical
effect is that there is only one corporation at a time within a state
using precisely the same name, i.e., there may only be one
General Electric Corporation in a state operating at any one time.
Sometimes a corporation decides to change its name or merges
with another corporation and as a result of the merger assumes a
new corporate name. Upon assuming the new corporate name, the
old corporate name may become available for use by another
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business. The corporate name may also become available if the
corporate charter is revoked, the corporation is dissolved, or the
corporate authorization lapses due to inactivity or failure to file an
annual report.
As a result of name changes, more than one corporation may at
different times conduct business under the same corporate name.
Also, because corporations must be authorized to conduct business
on a state-by-state basis, it is possible for two distinct, unrelated
companies with the same corporate name to operate in adjoining
states. Once a corporation has been identified, it is necessary to
confirm its name and the state of incorporation where Superfund
liability arose. Once this specific corporate entity is identified, it is
then necessary to determine the current status of this corporation.
A corporation cannot escape liability simply by changing its name.
If investigation reveals that ABC Corporation was incorporated in
1970 and sent hazardous substances to a Superfund site in 1975,
it is still liable today even if it changed its name to XYZ
Corporation in 1995.
Mergers
A merger is a combination of two or more corporations into one
surviving corporation. As a general rule, the liabilities of the
combining corporations are inherited by the surviving corporation.
Accordingly, once evidence of a corporation’s liability has been
established, all that is needed to link the liability case to the
company that survived the merger is documentation from the
state that confirms the merger. Examples of such documentation
may include:
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• articles of incorporation and amendments;
• resolutions of the board of directors;
• merger agreements; and
• proxy statements.
Asset Sales
A corporation may sell part of its business operations, facilities, or
other assets (e.g., real property, equipment) to another
corporation, but it cannot avoid CERCLA liability simply by
divesting itself of an asset. For example, a corporation may sell a
facility where hazardous substances were deposited, but doing so
will not relieve it of liability under CERCLA section 107(a)(2) if it
owned the facility at the time of disposal. Therefore the PRP search
should continue to investigate the selling corporation with
particular attention to the proceeds of the asset sale. (See
subsection 3.6.10 for exceptions to this general rule.)
3.6.7.D
Sale of Stock in a The ownership of stock in a corporation may change over time.
Corporation The exchange of stock in and of itself does not change the
corporate person. Accordingly, if the only change in a corporation
is the ownership in stock, then there is no change in the identity of
the liable party.
If the facts developed during a PRP search identify a situation
where either a majority or all of the stock of a liable corporation is
sold to a different “person,” it may be appropriate to conduct a
more thorough investigation to confirm that the exchange of stock
was the only change that took place. In some circumstances,
ownership of all or a majority of the stock of a corporation by one
person may signal the existence of additional PRP5. These issues
are discussed in subsection 3.6.10.
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3.6.8
Indemnification An indemnification agreement is a contract between two or more
parties in which one party agrees to be obligated to pay for or
Agreements
reimburse another party upon the occurrence of specific events as
set forth in the contract. A PRP may seek to transfer its liability to
another party through such an indemnification agreement. Since
the United States is not typically a party to such agreements, it is
not necessarily bound by their terms and conditions. Moreover,
resolution of disputes and alleged failures to perform arising from
such contracts requires recourse to a court of competent
jurisdiction. In some instances, it may turn out that the
indemnifying party is incapable of fulfilling its obligations due to a
lack of financial resources.
When a PRP search identifies the existence of an indemnification
agreement, ORC and possibly DO) should be consulted to
determine how best to proceed. Generally, it is the responsibility
of the parties to the indemnification agreement to assure
compliance with the agreement. Although an indemnifying party
may agree to perform or pay for work, it is important that the
United States retain enforcement authority over the PRP who is
being indemnified. Under appropriate circumstances, EPA may
seek an agreement from the indemnifying party not to contest its
obligation to indemnify the PRP. If the indemnifying party agrees,
it is essential that its agreement not be obtained in a way that
inadvertently effects a waiver of the United States’ enforcement
authority over the PRP who is being indemnified.
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3.6.9
Other Entities Trusts
Trusts are legal creations, often created to hold property so that
assets may be transferred to another person without expensive
and lengthy probate court proceedings, or to avoid inheritance
taxes. There are typically three parties identified in a trust
agreement. The grantor or trustor bequeaths or transfers property
to the trust. The trustee is the manager or executive for the trust,
with an obligation to follow the trust documents in managing and
distributing trust assets. The beneficiary or beneficiaries are the
persons who are to receive or inherit the property. One type of
trust, often known as a spendthrift trust, provides for the
distribution of property or income according to a fixed schedule or
at the direction of a trustee to one or more beneficiaries in order
to prevent the beneficiary from squandering it all at once. Trusts
may also be established to provide for the long-term care of an
incompetent or disabled individual, particularly when the
beneficiary is younger than the grantor. Trusts are created
pursuant to state law, and the forms, purposes, and limitations of
trusts vary from state to state. Because a trust may have legal
standing as a “person” under state law, it may be liable as a PRP
under CERCLA. It is therefore essential to understand the law of
trusts of the state in which the trust was created and of the state
in which the assets of the trust are located.
A trust is created by a trust document or instrument, which may or
may not be recorded, but must be in writing. The document
identifies the parties and describes the property, which may be
personal or real property, that is to become the trust estate. The
document also lists the duties of the trustee, provides for
successor trustees, and enumerates the conditions under which
trust assets may be distributed to the beneficiaries. Some trusts
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are irrevocable, which means that the property is transferred
without the possibility of the grantor changing her mind. Other
trusts are revocable, which means that the grantor retains the
right to revoke the trust and recover the trust property. In cases
where a PRP grantor continues to enjoy the use or benefit of the
trust property, EPA may conclude that the trust is a sham and take
legal action to void or set aside the transfer of the trust property.
Trusts are required to file federal income tax returns (Form 1041)
annually to report income, expenses, distributions of trust
property, and any tax liability.
Holding Companies
A holding company is a corporation formed to own the stock of one
or more subsidiary corporations. It is a subcategory of a parent
corporation, in that it typically does nothing more than own the
stock of corporations that actually create goods or provide
services.
Shell Corporations
A shell corporation is a corporation that exists on paper, but has
no real existence. Often a shell corporation may be a holding
company or the shell may exist only to preserve a corporate
name, public image, or intangible right or property. The officers,
directors, and shareholders of a shell corporation may be difficult
to identify, and may not actually conduct any business.
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Joint Venture
In many respects, a joint venture is indistinguishable from a
general partnership. It is an association of two or more entities,
generally with a finite or defined purpose. An example of a joint
venture is an association of two construction companies who
“jointly” bid on and construct a large building that would be
beyond the capacity of either company separately. Joint venture
agreements may be, but do not have to be, written. The primary
difference between a joint venture and a partnership is that the
joint venture is generally formed for the duration of a project, and
then disbanded, while the life of a partnership is governed by the
time specified in the partnership agreement or the desires of the
partners.
Municipalities
Counties, cities, and municipalities are creations and subdivisions
of state governments, established by charter or other act of the
state legislature. They are legal entities, much like corporations,
but have the power to require investments by the public through
taxes in addition to offering voluntary investment opportunities
through municipal bonds.
Limited Liability Company
Many states have adopted provisions under either their Uniform
Commercial Code or Business Corporation Act to allow for the
creation of a business entity known as a “limited liability
company.” This can be organized as either a sole proprietorship or
a general partnership, but the member(s) or company enjoy(s) the
limited liability protection generally afforded to shareholders of
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corporations. Requirements include public notice or registration of
the entity as a limited liability company and, in some cases, use of
the term limited liability in the company name.
3.6.10
Additional Liability As a PRP search progresses, information gathered may suggest
that the investigation be expanded to include additional “persons.”
Theories
This section supplements the discussion of CERCLA liability in
Chapter 1 by outlining theories of extended potential liability under
CERCLA. This information is intended to assist regional attorneys
and others participating in or performing the PRP search in
developing appropriate liability recommendations. Because the
interpretation and validity of these liability theories may be viewed
or applied differently in each federal judicial district and from state
to state, it is strongly recommended that ORC and DO) be
consulted to ascertain the current applicable judicial interpretation
given the facts of each specific case.
3.6.1 0.A
Direct Liability of a Subject to the appropriate legal defenses and exemptions outlined
Person as an in subsections 1.2.5 and 1.2.6, the owner of real property
Operator or as a constituting a Superfund site is a responsible party. CERCLA,
Person Who however, does not limit liability solely to the owner of the real
property. Instead, as discussed in subsection 1.2.4, liability may
Arranged for
also be imposed upon operators and on “persons” who arranged
Disposal or for treatment or disposal of hazardous substances (generators)
Treatment of and transporters. As the PRP search proceeds, many additional
Hazardous “persons” are often identified who played more or less extensive
Substances roles in directing or managing the activities of the business entities
whose acts in turn created the hazardous conditions found at the
Superfund site. Based on case-specific information developed
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during the PRP search, the Agency may establish that the actions
and involvement of these “persons” were so extensive that liability
should be imposed upon them, notwithstanding such traditional
shields against liability as the corporate shield or a person’s status
as a limited partner. Federal courts have held that these actively
involved persons may be named PRP5 based upon the definition of
“person” in CERCLA sections 101(21) and 107(a) under a liability
theory known as direct liability.
3.6.1O.B
Corporate Officers, In addition to holding a corporation liable, the United States has
brought CERCLA actions against individual officers or shareholders
Directors,
of corporations. In general, corporate officers, directors,
Shareholders, or
shareholders, and employees have limited individual liability for
Employees unlawful or tortious acts of a corporation. Courts, however, have
applied by analogy the standard of direct CERCLA liability
established in United States v. Bestfoods (discussed in paragraph
3.6.10.C) to corporate officers, directors, shareholders, and
employees. Courts have ruled that an officer or director may be
“directly liable,” i.e., personally liable, under CERCLA given any of
the following fact patterns:
• A corporate officer, employee, shareholder, or director
participated personally in the activity leading to the release
of hazardous substances.
• A corporate officer, employee, shareholder, or director
exercised extensive control over waste handling or disposal
operations.
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• A corporate officer, employee, shareholder, or director
exercised control over facility operations and could have
prevented or significantly abated the release of hazardous
substances.
Direct liability is imposed when the actions of an officer, employee,
shareholder, or director of a corporation exceed the normal limits
and accepted behavior, practices, or duties of his position.
Evidence that shows that an individual’s activities exceeded the
scope of his normal duties and responsibilities with respect to site
operations, particularly in directing activities that relate to the
disposal of hazardous substances, is crucial to a finding of direct
liability. For example, a treasurer of a corporation is usually given
responsibility for the corporation’s financial affairs, as set forth in
the articles of incorporation or the corporate bylaws. If the
treasurer directs corporate employees to drain liquid waste
containing trichloroethylene (TCE) into a disposal trench, he may
be held directly liable as an operator just as the corporation is
liable. Direct liability may also apply to related or affiliated
corporations.
3.6.1 O.C
Liability of Parent In United States v. Bestfoods, 524 U.S. 51 (1998), the United
States Supreme Court established a standard of direct liability
and Affiliated
under CERCLA section 107(a)(2) for parent corporations as
operators of facilities owned or operated by subsidiary
corporations. In Bestfoods, the court held that a parent
corporation that jointly operates or exercises control over the
environmental operations of its subsidiary’s facility may be held
directly liable as an operator of the facility under CERCLA section
107(a)(2). The court also stated that the question is not whether
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the parent operated the subsidiary, but whether the parent directly
operated the subsidiary’s facility. This may be demonstrated by
showing that the parent corporation managed, directed, or
conducted operations specifically related to the release or disposal
of hazardous substances, or made decisions affecting compliance
with environmental regulations at the facility. The court also stated
that a parent’s control over a subsidiary, although not giving rise
to direct liability, if extensive enough, may establish indirect
liability. (See the discussion below on piercing the corporate veil.)
The court in Bestfoods also held that a parent corporation cannot
be held directly liable merely because directors and officers hold
positions in both the parent and the subsidiary corporations. To
impose direct liability in situations with common officers or
directors, it must also be shown that the officers and directors
were acting in a manner (1) advantageous to the parent; and (2)
obviously contrary to the interests of the subsidiary. The direct
liability of a parent corporation arising from the actions of shared
officers or directors may only be imposed after an analysis of the
specific facts of each case using traditional corporate law tests or
principles. As a fundamental part of this analysis, the Court
emphasized the importance of corporate decisions that are not
made in the best interests of the subsidiary.
3.6.1O.D
Elements of Direct The investigation to determine whether corporate officers or
LIabIlIty parent corporations may have direct operator liability should be
focused on the degree and extent of involvement of each person.
Were the actions of a corporate officer or parent sufficiently
beyond the scope of a normal relationship to show that the
corporate officer or parent directly operated the corporation? Did
the actions of the corporate officer or parent qualify as an
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arrangement to treat or dispose of hazardous substances?
Evidence that merely describes the basic elements of ordinary and
customary management or supervision is not sufficient to meet the
standard of direct liability. Instead, the PRP search should seek to
document the actions of a person participating in the activities of
corporation at a level of involvement much greater than the
customary role of an officer or parent corporation.
In a potential direct liability case, documentation should include
information reflecting specific actions taken and directions and
orders issued by a potentially liable person. Documentation should
also show the extent and nature of the involvement of the person
in the corporation, paying particular attention to decisions or
activities that resulted in or contributed to the release of
hazardous substances. A comparison of the person’s job
description and duties with the duties and activities actually
performed as demonstrated by documents and testimony can be
particularly helpful and telling.
Documentation relevant to supporting a direct liability case
includes:
• corporate minutes;
• records of stock;
• corporate checks, signature cards, and bank statements;
• leases, rental agreements, purchase agreements, and all
other documents reflecting transactions between the
corporation and a related or affiliated party;
• list of officers (shared officers?);
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• list of directors (shared directors?);
• shareholders (does one person or entity own a controlling
interest?);
• affiliation schedules;
• corporate financial statements;
• statements of employees or other knowledgeable
individuals;
• position descriptions;
• employment agreements; and
• travel records.
3.6.1O.E
Piercing the Piercing the corporate veil is a legal doctrine through which a
corporation’s shareholders, who generally are shielded from
Corporate Veil
liability for the corporation’s activities, can be held personally liable
for those activities. This is in contrast to traditional corporate
liability schemes, in which shareholder liability is limited to the
money a shareholder has invested.
In Bestfoods, the Supreme Court left open the question (and
federal courts are divided on this issue by appellate circuit)
whether state common law or federal common law should apply to
veil-piercing claims in actions to enforce CERCLA’s indirect
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liability. 8 Most courts (federal and state) apply a multi-pronged
test to determine if a shareholder is liable for the wrongdoing of
the corporation of which he is an owner. Factors often considered
by courts include whether:
• control over the corporation by those to be held liable was
so complete that the corporation had no separate mind, will,
or existence of its own;
• control over the corporation by those to be held liable was
exercised in such a manner as to commit fraud or an illegal
act against the person seeking to disregard the corporate
entity; or
• injury or unjust loss resulted to the plaintiff from such
control and wrongdoing.
Generally, the doctrine of piercing the corporate veil is invoked to
prevent fraud or achieve equity, particularly in the treatment of
creditors of the corporation. Accordingly, as a prerequisite to
piercing the corporate veil, courts generally require the corporate
entity to demonstrate that it is unable to pay its liabilities or debts,
whether these are Superfund cleanup costs, salaries, debts to
suppliers, or taxes. (See Carter-Jones Lumber Co. v. LTV Steel
Co., 237 F.3d 745 (6th Cir. 2001) (Shareholder’s mere control of a
corporation may be sufficient to establish indirect liability and joint
liability as an arranger.).)
8 Because the federai courts of appeals are divided on this issue, it is necessary to
determine what the controlling law is for the circuit in which a specific case may be litigated
because state veil-piercing requirements are stricter than federal common law requirements.
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In order to pierce the corporate veil successfully, the party seeking
to pierce the veil has the burden of showing why the veil should be
pierced and what injustice, fraud, inequity, etc. will occur if the veil
is not pierced (e.g., the taxpayers will be required to pay for the
costs of a CERCLA cleanup instead of the wrongdoers who are
trying to hide behind a corporate shield). The type and amount of
evidence needed to pierce a corporate veil so as to impose CERCLA
liability on corporate officers, directors, shareholders, or
employees is not the same in all federal or state courts. The law
governing the standards to be applied varies. It is very important,
therefore, to consult CRC and, when appropriate, DOJ as soon as
information is obtained suggesting that piercing the corporate veil
might be warranted or required.
Corporate acts or omissions that support piercing the corporate
veil include:
• failure to observe corporate formalities, including failure to;
• properly incorporate (articles of incorporation) or file
appropriate documents with the state,
• hold meetings of the board of directors,
• hold meetings of stockholders,
• issue or account for stock, and
• approve or ratify major actions of officers,
• failure to treat corporate property as the corporation’s
property;
• failure to properly capitalize the corporation;
• commingling of assets (e.g., combining corporate funds
with personal funds); and
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• related-party transactions that are not at arms length or do
not involve reasonably adequate consideration.
The creditor must show that the corporation is a sham by
accumulating as much evidence as possible to support the
indicators listed above. Documentation that may be important
includes:
• corporate minutes (including evidence that such minutes
were not kept);
• records of stock;
• corporate checks, signature cards, and bank statements;
• leases, rental agreements, purchase agreements, and all
other documents reflecting transactions between the
corporation and a related or affiliated party;
• lists of officers (shared officers?);
• lists of directors (shared directors?);
• shareholders (does one person or entity own a controlling
interest?);
• affiliation schedules;
• corporation financial statements; and
• statements of employees or other knowledgeable
individuals.
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3.6.1O.F
Successor Liability As a general rule, a person who purchases some or even all of the
assets of a business from another person during the course of an
arms-length transaction is not liable for the debts or other
obligations of the seller. There are exceptions to this rule,
however, depending on the facts and circumstances of the sale
and on relevant case law in the judicial circuit in which jurisdiction
lies. Circumstances under which liability may pass to the purchaser
of business assets include:
• The buyer expressly or impliedly agrees to assume the
seller’s liabilities. Because EPA was not a party to this
transaction or contract, it is essential to seek advice from
regional counsel to determine whether EPA may
independently move against the buyer to enforce such an
agreement or if it is necessary to proceed against the seller
to enforce this portion of the contract.
• The transaction amounts to a de facto merger or
consolidation. As discussed in subsection 3.6.7, when there
is a formal merger between two or more corporations,
liabilities of the merging corporations are automatically
assumed by the surviving corporation. A de facto merger
describes an asset purchase agreement that, for all practical
purposes, amounts to a merger. Most states have
standards that define a de facto merger. These standards
typically include the following elements:
• there is a common relationship between the buyer
and seller;
• the buyer acquires essentially all the assets of the
seller; and
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• the seller is dissolved soon after the sale.
• The transaction (asset sale) is fraudulently entered into to
escape liability.
• The buyer is a mere or “substantial” continuation of the
seller. Factors that some courts have relied upon in
identifying “mere continuation” asset purchases include:
• retention of the same employees;
• retention of the same supervisory personnel;
• use of the same production facilities in the same
location;
• production of the same product;
• use of the same name;
• continuity of assets, i.e., the buyer uses the same
machinery, sells to the same customers, buys from
the same suppliers;
• continuity of general business operations;
• holding out as a successor to the former enterprise;
and
• holding out as identical to the former enterprise
(e.g., using the same name, letterhead, business
cards).
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Documentation that may help determine whether the standards for
successor liability enumerated above have been satisfied includes:
• the asset purchase agreement with all attachments,
schedules, or exhibits;
• corporate resolutions;
• employment contracts;
• customer lists;
• supplier lists;
• invoices and stationery;
• advertising;
• bulk transfer notices (notices mailed to creditors of the seller
and published in newspapers of general circulation in the
area where the sale occurred);
• business escrow documents reflecting the asset sale; and
• property appraisals.
Key points to remember when reviewing and evaluating asset
purchase agreements include:
• The person selling the business assets is normally referred
to as a predecessor. The court may require that EPA first
look to the remaining assets of the predecessor to satisfy a
liability before EPA is allowed to look to the assets of the
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successor. Accordingly, the PRP search must identify the
current operational status, viability, and ability to pay of the
predecessor. Some states require, as a precondition to
imposing successor liability, a demonstration that the
predecessor is insolvent or defunct.
• Because EPA is not normally a party to indemnification
agreements or an indemnification clause within asset
purchase agreements, EPA generally is not bound by the
terms and conditions of indemnification agreements.
Normally, only the parties to an indemnification agreement
can enforce its terms. Accordingly, providing EPA a copy of
an indemnification agreement may not relieve a party of
CERCLA liability.
• In attempting to evaluate the potential successor liability of
a purchaser, the objective is to gather evidence of as many
of the liability factors discussed above as possible. The
standard of proof is the preponderance of evidence, and no
one factor makes the case in the appropriate court
jurisdiction.
• Successor liability is a continually evolving field of law.
Consequently, it is critical to consult with ORC and DO]
when making a liability determination based on successor
liability.
3.6.11
Effective financial research starts with a knowledge of the
Financial Research
regulatory requirements and record-keeping policies for the
location where the transaction took place. On-line databases and
credit reporting services are very useful aids to understanding
prior events, but the information obtained using these services
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may not be sufficiently reliable to be used as evidence. This is
especially true when researching the sale and acquisition of
companies. The various sources of financial information about
businesses are discussed below.
Corporation and
Partnership Filings
Required by States
Required business filings differ from state to state, both in terms
of what information must be provided and where documents must
be filed. In many states, corporations and limited partnerships are
required to file documents with the secretary of state in order to
defend any action in a state court. Accordingly, almost all
corporations and partnerships have filed the requisite documents.
• For corporations, required filings include the corporate
registration, which contains a list of officers and directors,
articles of incorporation, and all amendments of the articles.
• For partnerships, required filings include the partnership
agreement, which contains a list of all partners and their
interests in the partnership, and may include a list of
partnership property.
• Documents evidencing corporate name changes and
mergers are also filed with state agencies.
When reviewing corporate filings make sure that the available
information is consistent with the span of time of potential liability.
Some state offices archive older records. In those offices, it is
typically necessary to make a specific request to review older
filings.
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3.6.11.B
County Filings and Depending on the location and the type of company, documents
Other State may exist that identify the person and the address used by the
person at the time of filing. County deed offices are very useful in
Regulatory Agency
establishing a sequence of owners of real property, particularly
Filings when the name of a purchaser on a deed is different from the
eventual seller named on the deed.
3.6.11.C
Court Filings Federal and state courts are often good sources of information that
is useful for establishing corporate liability. Sometimes financial
issues relevant to a CERCLA investigation have been addressed
under a labor grievance or a property dispute. A review of prior
legal actions and an examination of the evidence introduced in
those actions can be helpful.
3.6.11.D
Federal Sources The SEC has large amounts of information relevant to purchases,
sales, mergers, and divestitures of publicly held companies. The
more current information is available on line. In addition, publicly
available paper documents describe activities as far back as the
1930s. Other federal agencies may have information such as
contracts and contract amendments that may help establish
liability.
3.6.11.E
Corporate directories provide summaries of useful financial
Corporate
information for a variety of businesses. Older editions of these
Directories directories often are helpful in tracking name changes and the
acquisition and sale of plants. These directories can also be used
to establish the state of incorporation, as well as the fate of
inactive, dissolved, or defunct corporations, or corporations which
have merged, been acquired, or have otherwise disappeared.
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Useful corporate directories include the Dun & Bradstreet Million
Dollar Directories, Directory of Obsolete Securities, Standard &
Poor’s Industrial Manuals, and Walker’s Manual of Western
Corporations. Corporate directories can be found in the business
section of most public libraries and are updated at least annually.
In addition, industrial directories are compiled annually for most
states, and larger libraries may maintain a historical collection of
such directories, particularly for their state.
3.6.11.F
Credit Reporting On-line services often provide corporate information for a limited
number of years or provide information that is not current. Check
and On-Line
with the data provider to verify the period of time that the data
Services
cover and whether full data or only limited portions are being
provided. These systems are very useful for gathering information
quickly, but additional effort is often needed to fully understand or
verify the information. Appendix I provides a list of on-line
resources that may be useful to a PRP search team.
3.7
Site Summary Preparing a site summary prior to preparation of the baseline PRP
search report serves two purposes:
Development
1. It focuses the PRP search team on any information gaps or
incomplete baseline tasks prior to preparation of the
baseline PRP search report. If information gaps or
incomplete tasks are identified, the PRP search team can
take steps either to complete or re-do tasks or to defer
decisions to a later date when more complete information is
available.
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2. It consolidates and facilitates sharing of information. A site
summary assembles pertinent, non-confidential site
chronology and property history information in one place.
This summary can be shared with PRPs if it does not contain
confidential or privileged information. The summary can also
be used by Agency and state decision makers as a quick
reference to assist in making decisions.
At this point in the PRP search process, site documents have been
organized consistent with the information management provisions
of the PRP search plan and reviewed for pertinent site data,
information that links a party to the site, sufficiency of evidence
establishing the liability of the PRP, financial viability, and potential
leads about other parties involved with the site. This review should
result in a history of activities and parties involved in the
treatment or disposal of hazardous substances at the site, and a
compilation of other factual site information.
Site History
Factual background information about the site as well as a history
of the facility should be presented here. This history of the facility
as a hazardous substance site should begin with the first industrial
use or disposal at the site and continue through to current
activities. It should identify in detail the kinds of activities
conducted at the facility and the owners/operators during each
period, including principal individuals. It should also identify by
reference any data on substances at the site (e.g., in drums,
containers) and, to the extent that the information is available,
include a discussion of the environmental risks that the site
presents. This will allow enforcement efforts to focus more closely
on site activities that are linked to EPA response actions.
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Factual Site Information
Factual site information that should be contained in a site
summary includes:
• site location and size;
• adjoining properties;
• brief description of site history to include;
• site owner/operator(s),
• when operations began,
• type of operations at the site, and
• types of substances manufactured, treated, stored,
or disposed of,
• permits applied for or granted; and
• warnings or notices of violations issued by regulatory
agencies.
All information contained in this subsection should be based on
factual records, and each piece of factual information cited should
reference where the source record can be found. Following the
brief description, a detailed description of site history should be
presented in chronological order.
The owner/operator discussion should identify the period of each
person’s ownership or operation of the facility, and describe what
hazardous substances were disposed of and by whom during each
such period. The owner/operator section should also include a title
abstract or narrative provided by the title search company or title
researcher. To aid the reader in reviewing title search results, a
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title tree or graphs depicting the chain of title may be useful. Any
language in the title restricting the use of the property due to
wastes deposited at the site or past industrial practices should be
noted.
3.8
Compile ..
In addition to developing evidence for CERCLA section 106 and
Waste-In 107 actions, a PRP search should develop waste-in information for
waste-in lists and volumetric rankings wherever practicable.
• A waste-in list provides the volume and nature of
substances contributed by each PRP at a facility.
• A volumetric ranking is a ranking by volume of the
hazardous substances at a facility.
If EPA invokes special notice procedures under CERCLA section
122(e)(1), the Agency is required to provide PRPs, to the extent
that such information is available, with waste-in lists, volumetric
rankings, and a list of PRP names and addresses. Aside from the
statutory provisions for development and release of such
information, experience has demonstrated that waste-in lists and
volumetric rankings are a valuable tool in bringing about
settlements at Superfund sites. When presented with an estimate
of the nature and volume of hazardous substances contributed to a
site, PRP5 are better able to coalesce into committees and
determine allocations among themselves, and often are more
willing to participate in settlement negotiations with EPA. While not
every site is a logical candidate for a waste-in list or volumetric
ranking, development of such lists and rankings is generally
beneficial whenever practicable.
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In the past, owner/operator transactional records were the only
waste-in information developed during the baseline phase of the
PRP search. The follow-up phase focused on generator and
transporter liability and volumetric rankings. Since current Agency
policy calls for early settlement with small-volume waste
contributors, however, generator-specific waste-in information
should be developed during the baseline phase so that de minimis
and de micromis determinations can be made as soon as possible.
For detailed guidance on waste-in lists and volumetric rankings,
consult the Final Guidance on Preparing Waste-In Lists and
Volumetric Rankings for Release to Potentially Responsible Parties
(PRPs) Under CERCLA (February 22, 1991); for detailed guidance
on the use of waste-in information in settlements with
small-volume contributors, consult the Streamlined Approach for
Settlements With De Minimis Waste Contributors Under CERCLA
Section 122(g)(1)(A) (July 30, 1993). (See Chapter 3 references,
page 216.)
3.8.1
Transactional Sections 3.2 and 3.3 discussed the value of databases for tracking
correspondence and information requests. Similarly, large
Databases
amounts of information on generator and transporter waste types
and volume gathered from previous baseline tasks can best be
managed with a transactional database. Transactional databases
are used at recycling sites, landfills, and other such sites with large
numbers of generators. Information contained in transactional
databases is generally derived from evidence summary sheets and
waste stream analyses. Waste stream analyses are discussed in
section 4.7 of this manual.
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Evidence Summary Sheets - Generators
A separate evidence summary sheet generally is prepared for each
shipment or group of shipments of a hazardous substance sent by
a generator to a site for treatment or disposal. The evidence
summary sheet for the generator should contain the following
information pertaining to the hazardous substance(s) at the site:
• relationship of substances to the threat;
• volume;
• identification by name of the hazardous substances;
• EPA’s determination of any RCRA hazardous wastes codes;
and
• substances found at the site that the generator is known to
produce.
Information on hazardous substances presented in the evidence
summary sheets should be referenced to supporting documents in
the correspondence tracking databases, if developed, or in the site
file database. This information should be verified during the RI at
the site.
Evidence Summary Sheets - Transporters
Evidence summary sheets should be kept for all transporters who
accepted hazardous substances for transport and selected the
treatment or disposal facility to which the shipment was sent. It is
useful to identify all transporters, not just those who selected the
site, since they will identify the generators. Although the
transporters may not have selected the site, and consequently
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may not be liable, the transporter’s customer may be liable as a
generator. By identifying all transporter volume, the database can
ensure that each transporter volume is linked to a generator,
thereby making sure all generators are identified. A transporter
evidence summary sheet should include the volume and nature of
the hazardous substances and describe any evidence that the
transporter selected the treatment or disposal site. Again, all the
information on the evidence summary sheets should be referenced
to supporting documents in the correspondence tracking and site
file databases.
As with the site file, correspondence, and information request
tracking databases, the information contained in the transactional
database should be screened for relevance to the PRP search. If a
contractor is responsible for developing the database, the
contractor must work with EPA to determine the document criteria.
The QA/QC process should screen for duplicative documents and
either eliminate them or enter the documents into the database as
duplicates. The QA/QC process should also be applied to document
codes and field definitions, which may include: document location,
document number, document type, originator, author(s),
origination date, title, subject(s) or key words, addressee, number
of pages, document condition, method of obtaining the document
sources (e.g., PRP, EPA), recipients, and attachments.
3.8.2
Waste-In Lists and At some point during the baseline phase of the PRP search, the
PRP search team should assess the quality and completeness of
Volumetric
the waste-in information and determine whether waste-in lists and
Rankings .
volumetric rankings will be developed, and by whom. CERCLA
gives EPA considerable discretion whether to develop a waste-in
list or volumetric ranking. Whether the records at a site constitute
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sufficient evidence to produce waste-in lists and volumetric
rankings is a highly site-specific determination. Regions should
develop an approach for assessing waste-in information that is
internally consistent and based on a common set of
considerations. Where waste-in lists and volumetric rankings are
developed by EPA, the following three rules should be followed
when making assumptions about waste-in information:
• Assumptions should be defensible. Established
conversion standards (converting to common units of
measurement such as gallons or cubic yards) should be used
and assumptions should be based on patterns established in
the data in order to avoid charges that an assumption is
arbitrary or capricious.
• State assumptions openly. When interpreting illegible
numbers on a manifest, or assuming a disposal destination
from an unclear hauling ticket, it is preferable to let PRPs
know where EPA made assumptions and to identify where
ambiguity still exists. Clearly stated assumptions contribute
to the credibility of a waste-in list and give PRPs the
opportunity to make their own corrections. Assumptions
should be reviewed by the case attorney to ensure that they
are legally supportable.
• Be consistent. PRPs involved at more than one site within
a region will be aware of any discrepancies in the kinds of
assumptions made for waste-in lists at these sites. Disputes
over inconsistent assumptions only slow down the
settlement process.
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Whom To include on Waste-In Lists
Generators are usually included on a waste-in list when evidence
indicates they contributed hazardous substances to a Superfund
site. Transporters should be included on waste-in lists when the
transporter, not the generator, determined where the hazardous
substances were to be taken for treatment or disposal. As a policy
matter, EPA implements CERCLA sections 107(a), 101(20)(B), and
1O1(20)(C) by not including transporters on a waste-in list if they
did not select the site or facility to which hazardous substances
were delivered. Thus, while all transporters should be sent 104(e)
information request letters, only those transporters who appear to
have selected the site for hazardous substance disposal should be
sent notice letters.
Format and Content of Waste-in Information
Waste-in Lists
Waste-in lists contain the volume and nature of substances
contributed by each PRP identified at a facility. At a minimum, the
lists should contain columns for the names and addresses of PRPs
as well as the types and volumes of hazardous substances.
Although EPA is under no statutory obligation to release
information beyond the waste-in list, regions should consider
releasing supplemental waste-in list information unless there are
countervailing legal, policy, or strategy reasons not to do so.
Supplemental waste-in information can include, but is not limited
to:
• the dates of shipments;
• the names of transporters;
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• the types of evidence from which the waste-in lists were
derived; and
• comments to clarify assumptions, ambiguities, and
double-counts.
When most PRPs at a site are generators, waste-in lists should be
organized by generator, with a column provided for listing the
transporter of each shipment in order to link the generator to the
site. When there are multiple transporter PRPs, it may be
advisable to prepare separate waste-in lists for generators and
transporters.
Volumetric Rankings of Substances at a Facility
To the extent such information is available, CERCLA requires that
special notice recipients be provided with a volumetric ranking of
hazardous substances at the facility. This ranking lists hazardous
substances and their respective volumes in descending volumetric
order. It can be developed from waste-in list information.
Volumetric Rankings of PRPs
Volumetric PRP rankings (sometimes referred to as generator
rankings) rank PRPs in descending order by volume and express
their contributions as a percentage of the total volume of
hazardous substances at the facility. Although CERCLA section
122(e)(1)(B) requires EPA to provide special notice recipients with
“the volume and nature of substances contributed by each
potentially responsible party identified at the facility,” to the extent
such information is available, CERCLA does not require that this
information be aggregated into a volumetric PRP ranking. A
number of regions release information in this format, however,
because they feel it provides a logical starting point for
negotiations. Regions should bear in mind and convey to the PRPs
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that waste-in information provided with special notice is intended
as an estimate of individual PRP contributions, and is neither
definitive nor binding in any way. It is intended solely as
information to facilitate settlement agreements between PRPs and
the Agency.
When there is insufficient information to convert volumes into a
single unit of measurement, regions may provide a volumetric
ranking using raw data from records in an unconverted form. PRPs
can then choose to clarify ambiguities concerning volumes or
substances in order to produce a better list upon which to
negotiate.
Special Considerations
Commonly Contributed Volumes
When hazardous substances are contributed both by a generator
and a transporter that designated the treatment or disposal site,
regions are advised to:
• attribute the volumes to both parties when compiling
waste-in information;
• not try to apportion responsibility for a hazardous substance
shipment generated by one PRP and transported by another
among the two PRPs in a volumetric ranking or waste-in list;
and
• let the PRPs, or the independent neutral, allocate commonly
contributed volumes during the site allocation process.
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Because this approach may result in double-counting shipments,
regions should provide PRPs with an explanation of why shipments
have been double-counted and clearly identify, by means of a
comment field or other notation, which shipment volumes have
been attributed to both generators and transporters.
Municipal Landfills
Like mining and area-wide groundwater sites, landfills are
notoriously difficult sites at which to compile accurate waste-in
information, both because of poor record-keeping practices and
because of the mixture of different wastes disposed of at landfills.
In many instances, most of the wastes in a municipal landfill are
not hazardous substances and do not belong in a waste-in list or
volumetric ranking.
Non-exempt generators and transporters of municipal solid waste
or sewage sludge generally will not be notified as PRPs unless
evidence shows that:
• the waste or sludge contains a hazardous substance; and
• the hazardous substance came from a commercial,
industrial, or institutional process or activity.
Generators and transporters of commercial trash, however, are
generally notified as PRPs unless they can demonstrate that:
• none of the hazardous substances contained in the trash are
derived from a commercial, institutional, or industrial
process or activity; and
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• the amount and toxicity of the hazardous substances do not
exceed the amount normally found in common household
trash.
Removal Sites
Some removal sites are not good candidates for compiling
waste-in information because they require cleanup action sooner
than the time it would take to produce waste-in lists. Even after
the work has been started, however, there may be a need to
prepare the waste-in list, especially if cost recovery litigation is
likely. Even if a waste-in list cannot be prepared because of time
constraints, it is important to notice as many parties as possible to
limit due process issues that may be raised by PRPs. At
non-time-critical removal sites, the creation of waste-in lists and
volumetric rankings should be seriously considered as there is
more time available to prepare them at these sites than other
removal sites. When adequate transaction documentation exists
and settlement seems possible, regions should prepare waste-in
lists and rankings as described in section 122(e)(1) for release to
PRPs. Because removals may proceed at an accelerated rate, it is
important to start the waste-in preparation early, spend less time
fine-tuning lists and rankings, and release the information to PRPs
as early as possible.
For more general information on preparing waste-in lists and
volumetric rankings; specific considerations for solvent recycling
and transshipment sites, lead battery sites, and mining sites; and
releasing waste-in information, consult the Final Guidance on
Preparing Waste-In Lists and Volumetric Rankings for Release to
Potentially Responsible Parties (PRPs) Under CERCLA (February 22,
1991).
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3.9
The objective of this task is to classify identified parties into the
Classify PRPs
broad categories of owner, operator, transporter, or generator,
and then more specifically into other categories, such as
de minimis, de micromis, insolvent, or defunct.
3.9.1
Identify PRPs Throughout the PRP search process, information should be
analyzed with the following questions in mind:
• Is the information sufficient to establish PRP liability?
• What volume of waste was disposed of or treated at the
site?
• Can the PRP(s) contribute toward cleanup efforts?
• Are there additional leads which should be pursued?
• Have past and present owners/operators been identified?
• Does the information presented resolve liability inquiries?
• Is the waste-in information complete?
• Are recommended follow-up activities documented?
The PRP search team should routinely perform such analyses in
order to collectively identify any weaknesses in the existing PRP
search efforts, identify any next steps, and determine the timing of
these steps.
These analyses are particularly important to ensure effective
collection of:
• information about owner/operator liability and financial
viability;
• updated PRP names and addresses;
• information about the volume and nature of substances sent
to the site;
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• information on the contributing parties;
• information that can be used to determine whether a person
should receive a notice letter; and
• evidence of each PRP’s liability.
A list of parties identified as PRPs should be developed with
complete names, addresses, and contacts. This list should contain:
• names of contact persons;
• addresses;
• phone numbers, if available;
• name of the legal contact, if the parties have
representation;
• date of list preparation; and
• contact person for all correspondence.
It is very important that the addresses of PRPs or their contacts be
verified for accuracy. Verification prior to preparation of the
baseline PRP search report reduces the need for additional or
subsequent re-mailings of general or special notice letters and
helps ensure that PRPs receive adequate notice and due process
rights. Failure to satisfy these procedural requirements may lead
to significant problems later in the Superfund process. PRP lists
can be included as an appendix to the site summary section of the
baseline PRP search report and are considered non-confidential.
PRP search reports are more fully discussed below in section 3.10.
3.9.2
Define PRP PRP classification initially involves grouping PRPs into one of the
category following CERCLA categories:
• owners (past or present);
• operators (past or present);
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• generators;or
• transporters.
Further classification of PRP5 into sub-categories of the above
categories may be appropriate depending on site-specific needs
and the nature and volume of information available. The following
are examples of sub-categories:
• ability to pay (ATP) parties;
• de minimis;
• de micromis;
• MSW;
• residential homeowner;
• insolvent or defunct; 9
• status known, but quantity of waste unknown.
It may be beneficial to classify non-PRPs into such categories as:
• status unknown;
• residential homeowner;
• knowledgeable witness;
• adjacent landowner.
If corporate information is available, the list should include the
date of incorporation, whether corporate PRPs currently exist, the
fate of inactive companies, current mailing addresses (including
facility, headquarters, and registered agent), and parent or
9 During the baseline phase of the PRP search, it may not be possible to
conclusively determine if a party is insolvent or defunct due to the time-consuming nature of
this determination However, preliminary determinations on a party’s status as insolvent or
defunct should be attempted during this phase, with follow-up information requests or other
information gathering techniques used during the follow-up phase to make the final
determination. Insolvent and defunct determinations are discussed in section 46 of this
manual.
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successor companies. Information about individuals and
unincorporated companies should include their current locations,
their associations with other PRPs, and their relationships to the
site.
In most instances PRP classifications are pre-decisional and subject
to review during the PRP search, and consequently are considered
confidential. Nonetheless, they can help the PRP search team and
other Agency staff in corresponding with PRPs, conducting financial
assessments, directing follow-up activities, and many other tasks.
3.10
Prepare Baseline The baseline PRP search report is a preliminary report that
PRP Search contains available information on the owners/operators,
generators, and transporters. This report provides a chronological
Report summary of site history and the facts pertaining to PRPs’ liability.
Information supporting conclusions within the report is generally
included in appendices. The baseline report is generally followed
by the interim final PRP search report except in simple
owner/operator situations where the baseline report will usually
suffice. See section 4.8 of this manual for further discussion of the
interim final PRP search report.
3.10.1
Report Format and Prompted by the Agency’s emphasis on earlier information
exchange with PRPs and other stakeholders, more efficient
Content
information gathering, and concern over whether PRP search
reports were subject to discovery production demands and FOIA
requests, several EPA regions have been using a revised format for
the report. Traditionally, the PRP search report format consisted of
the following sections: introduction, site history, PRP identification,
and conclusions and recommendations. The problems that resulted
from this format included:
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• Time needed to prepare the entire baseline report delayed
receipt of factual site summary information that could be
used for early information sharing with other parties.
• Disputes over releasability of the PRP search report were
corn mon.
• Reports could not be updated easily to reflect development
of additional or new information.
• Interpretations and conclusions were not clearly
distinguished from established fact.
A revised PRP search report format (for both the baseline and
interim-final reports) consists of two sections treated as separate
deliverables, namely:
1. Site chronology and property history; and
2. PRP synopsis.
3.1O.1.A
Deliverable 1: Site The known facts about the site and its PRPs are summarized
without interpretation in the first section of the baseline report.
Chronology and
The site chronology and property history and back-up information
Property History . . . .
are included in supplemental appendices. This section contains no
conclusions, interpretations, or inferences regarding liability. A
separate site chronology and property history:
• highlights the source of information being used to establish
facts;
• helps identify periods of time for which there is little or no
conflicting information;
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• facilitates updates during a phased PRP search; and
• may be released to PRPs and other members of the public.
Suggested contents and format of the site chronology and
property history section of the PRP search report are shown in
Figure 1.
3.1O.1.B
Deliverable 2: PRP The remainder of the baseline report is contained in the PRP
Synopsis synopsis section. This section of the PRP search report should be
stamped “Privileged Work Product -- Deliberative/Attorney Work
Product - Do Not Release Under FOIA”. The PRP synopsis should
include:
• PRPs identified during the research;
• PRP names, addresses, and telephone numbers;
• the basis for inclusion of each PRP;
• PRPs with potential defenses to or exemptions from liability
(See subsections 1.2.5 and 1.2.6);
• major reference sources;
• the identity of other parties associated with the site and the
nature of the association;
• conclusions and recommendations; and
• appendices.
A suggested outline for the PRP synopsis section of the PRP search
report is presented in Figure 1.
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3.10.2
Report Review and A site chronology and property history created as an interim
deliverable segregated from the PRP synopsis section of the
Distribution
baseline PRP search report allows EPA to review the information
contained in it earlier in the PRP search process than if combined
in the traditional report format. It is suggested that the PRP search
manager and case attorney review the interim deliverable
simultaneously to save more time in the internal review and
approval process. Once approved, this information can be shared
with interested stakeholders and placed in the site repository.
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FIGURE 1: SUGGESTED PRP
SEARCH REPORT FORMAT
DEUVERABLE 1: SITE CHRONOLOGY AND PROPERTY HISTORY
Introduction
• project background -- a brief “snapshot” of the site
• project approach, - who performed the research and
under whose direction
• list of contacts -- public agencies that were contacted to
collect information
• overview of report -- presents the basic layout of the
report
DIscussIoN OF THE SITE
Site History -- factual background in formation about
the site, including:
• site location and size
• adjoining properties
• brief description of site history, including:
• site owners/operators
• when operations began
• type of operations
• types of substances manufactured, treated,
stored, or disposed of
• whether the substances found on-site are in
drums, containers, etc.
• permits applied for or granted
• warnings or notices of violations issued by
regulatory agencies
Property History:
• summarizes the review of all title documents
• documents ownership of the property for the period of
time relevant to the site
• presents a title tree or chain of title (including corporate
name changes of property owners, conveyances,
quitclaims, deeds, and liens)
• contains corresponding references to the relevant
documentation
• includes a brief summary of the environmental threats
posed by site activities and the potential cleanup
activities.
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FIGURE 1: SUGGESTED PRP
SEARCH REPORT FORMAT (cont’d)
DELIVERABLE 2: PRP SYNOPSIS
Introduction
Discussion of the Site — Refer the reader to the first section
of the report
PRPs — Cite statutory provisions and relevant policy/guidance
as basis for inclusion as PRPs
PRPs -- Owners/Operators
• PRP name
• status (current owner, successor, etc.)
• current address
• headquarters address, if applicable
• registered agent
• President
• current status
• corporate information
• narrative description of basis for inclusion
• references
• nature and volume of hazardous substances associated
with PRP
• reference to appendices or attachments for additional
information, rankings, or groupings
• financial information, ability to pay issues
PRPs -- Generators (same in formation as for
owner/operators)
Provide information in both a PRP summary and a volumetric
ranking list format, to the extent this information is available.
Depending on the complexity of the site, the region may
develop a list by PRP of information that describes the chemical
nature of the substances and links shipment/
volumetric conclusions to particular transporters and
documents. In these instances, there should also be an
assessment of whether the wastes were RCRA hazardous
wastes for ARAR purposes.
PRPs -- Transporters (same information as for
owner/operators)
Provide information In both a PRP summary and a volumetric
format similar to the generator lists as described above.
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FIGURE 1: SUGGESTED PRP
SEARCH REPORT FORMAT (cont’d)
Special PRP Information
Include any special information that may have a bearing on
whether a party is ultimately designated by EPA as a PRP.
Examples include entities that have been or are in bankruptcy;
individuals who are deceased and a description of the status of
their estates; successor corporations; parent-subsidiary
relationships; PRPs with potential defenses to or exemptions from
liability (see sections 1.2.5 and 1.2.6); and defunct/insolvent
PRPs.
Special Site Information
Highlight any unique or complex features associated with sites
such as municipal landfills, area-wide groundwater or stream
contamination sites, sites where the source of contamination is
not clear, and sites from which wastes were sent to satellite
facilities.
Other Parties Associated with the Site
Identify parties who may possess additional information on the
site (e.g., witnesses, previous employees not yet located) and
parties about whom information is currently not available to
characterize them as a PRP. Present all relevant information here,
such as names, addresses, phone numbers, basis for inclusion of
this party in this subsection, and references.
Conclusions and Recommendations
Summarize the identified PRPs and parties associated with the
site. Include recommendations for additional actions and an
estimate of the time and resources needed to perform those
actions. This type of information will allow the decision makers to
make an informed decision when balancing the need for
information with available resources and timing constraints.
Apoendices
Include interview summaries, evidence sheets, potential
questions for additional information request letters, and other
documents referenced throughout the report.
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CHAPTER 3 REFERENCES
Name Section Location
Checklist of PRP Search Tasks 3.0 Appendix G
Enforcement Project 3.2 http://intranet.epa.gov/oeca/osre/hbk-
Management Handbook pdf/index. html
PRP Search Enhancement Team 3.2.1 Appendix H
Members/Contacts
Transmittal of Sample 3.3 http://www.epa .gov/compliance/
Documents for More Effective resou rces/policies/clea nu p/su perfu nd/
Communication in CERCLA sampledoc-cercla-mem . pdf
Section 104(e)(2) Information
Requests
(June 30, 1995)
Disk Repository of Current 3.3 http://intranet.epa.gov/oeca/osre/doc/
CERCLA Section 104(e) 960229.html
Questions
On-Line Sources of PRP 3.3.1 Appendix I
Information
Superfund Enforcement Directory 3.3.1 Appendix)
http://www.epa.gov/compliance/cleanup/
superfund/find/sfed/index.html
False Statements Act 3.3.1 http://www.access.gpo.gov/uscode/
title 18/parti_chapter47_. html
Federal Debt Collection 3.3.1 http ://www.access.gpo.gov/uscode/
Procedures Act title28/partvi_chapterl76_.html
Releasing Information to 3.3.1 http://www.epa.gov/compliance/
Potentially Responsible Parties at resources/policies/cleanup/superfund/
CERCLA Sites (March 1, 1990) release-prp-rpt.pdf
EPA Regulations Governing 3.3.3 http://www.access.gpo.gov/nara/cfr/
Business Confidentiality Claims, waisidx_01/4Ocfr2_01 . html
40 C.F.R. § 2.201-2.215 _________________
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Chapter 3 References
Name Section Location
Federal Rules of 3.4.1 http ://www.access.gpo.gov/uscode/
Evidence 801-817 title28a/28a_5_.html
Federal Perjury Statute, 18 3.4.2 http://www.access.g po.gov/uscode/
U.S.C. § 1621 titlel8/parti_chapter7g_. html
Final Guidance on Preparing 3.8 http://www.epa.gov/compliance/
Waste-In Lists and Volumetric resources/policies/cleanup/superfund/
Rankings for Release to guide-volumet-rpt. pdf
Potentially Responsible Parties
(PRPs) Under CERCLA
(February 22, 1991)
Streamlined Approach for 3.8 http://www.epa .gov/compliance/
Settlements With De Minimis resources/policies/cleanup/superfund/
Waste Contributors Under app-deminimis-rpt.pdf
CERCLA Section 122(g)(1)(A)
(July 30, 1993)
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4.5.1
4.5.2
4.5.3
PRP Search Manual
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4.0 Followup PRP Search 217
4.1 Issue Followup Information Request Letters 218
4.2 Compel Compliance with CERCLA Section 104(e) 220
4.3 Issue Administrative Subpoenas 223
4.4 Perpetuate Testimony Using Rule 27 226
4.5 Perform Ability To Pay Determinations 229
General Policy on Superfund Ability To Pay Determinations .
ATP Information Sources
Performing Property Appraisals
4.6 Perform Insolvent and Defunct Determinations
4.6.1 Definition
4.6.2 Insolvent and Defunct Determinations
4.7 Perform Waste Stream Analyses
4.7.1 Industrial Surveys
4.7.2 Process Chemistry Analysis
4.7.3 Waste Stream Inventory
4.7.4 Mine Sites
230
232
238
241
241
242
247
247
247
248
249
/• s.’.
(., 7,
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4.8 Prepare and Review Interim Final Report 249
4.8.1 Interim Final Report Followup 250
4.9 PursueLitigationandCostRecovery .. 250
References 257
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4.0 Followup PRP Search
The PRP search team should analyze the information collected
during the initial phase of the PRP search to determine whether:
all reasonable leads on PRPs were pursued;
• PRP contributions to the site have been determined; and
• each PRP’s liability and financial viability have been
established.
A review of the information also should consider the reasons for
pursuing or not pursuing leads. Once the review is complete, the
PRP search team should decide whether additional followup
activities are necessary.
Followup tasks are often needed to complete the PRP search,
although all followup tasks may not be necessary for each search.
For instance, followup activities may be conducted for sites where
the PRP search was considered complete but new information
requires performance of additional search tasks. The PRP search
team must exercise professional judgment to determine which, if
any, followup tasks are appropriate, beneficial, and necessary for a
particular site.
Followup tasks can help insure a thorough, high-quality PRP
search. These tasks vary from site to site, but generally fall into
the following categories:
• information sources, including information request letters,
administrative subpoenas, and Rule 27 testimony;
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• waste stream analysis, including industrial surveys, process
chemistry analysis, and waste stream inventory; and
• miscellaneous tasks, including financial assessments,
corporate research, compelling compliance with CERCLA
section 104(e) information requests, and orphan share,
insolvent, and defunct determinations.
4.1
Issue Followup
As stated in subsection 3.3.5, the PRP search team may issue
Information followup requests during the baseline phase. Alternatively, the
team may elect to defer such requests until the followup phase.
Request Letters
There are many reasons why the team might want to defer
issuance of such requests (e.g., time and resource considerations,
site-specific circumstances).
Followup request letters may be necessary if a PRP complied only
partially with the initial information request or the team needs to
clarify the response. In addition, the team may need to issue such
letters in cases where PRPs have “nominated” other parties,
claiming that they are also liable. Finally, followup letters may be
issued to obtain financial information needed to finalize insolvent
and defunct determinations or analyze ability to pay.
Specialized 104(e) Questions
The Agency may need to ask more specialized questions in the
followup information request letters to fill information gaps. Sets of
104(e) questions that have been developed and used by the
regions have been compiled and grouped by subject matter in the
Disk Repository of Current CERCLA Section 104(e) Questions (June
17, 1999). (See Chapter 4 references, page 257.)
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Specialized questions are listed for the following categories:
• Arrangers and Generators
• Arrangers and Generators Recycling
• Transporters
• Financial: General Questions
• Financial: Lender Liability
• Financial: Other Entities
• Financial: Trusts
• Financial: Estates
• Financial: Successor Liability
• Financial: Parent Corporations
• Financial: Piercing the Corporate Veil
• Financial: General ATP
• Financial: Individual Ability to Pay Questions
• Financial: Individual Ability to Pay Form
• Financial: Form to Request ATP guidances, models, and
tools from headquarters
• Financial: Dissolution
• Owner/Operator: General Questions
• Owner/Operator: General Manufacturing
• Owner/Operator: Chemical and Manufacturing Plants
• Owner/Operator: Grain Fumigants
• Owner/Operator: Polychiorinated Biphenyls Sites
• Owner/Operator: Solvents
• Owner/Operator: Landfills
• Owner/Operator: Mining
• Owner/Operator: Used Oil Facilities: Tar Oil
• Owner/Operator: Used Oil Facilities: Waste Oil
• Owner/Operator: Lead Battery Facilities
• Owner/Operator: Dry Cleaners
• Owner/Operator: Auto Shops
• Owner/Operator: Innocent Landowners
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Compel
Compliance
with CERCLA
Section 104(e)
If a recipient of a CERCLA section 104(e) information request letter
fails to respond within the specified time or provides incomplete
answers, a reminder letter should be sent to the unresponsive
recipient. (See subsection 3.3.5 for discussion of information
request followup actions.) In addition to warning the recipient of
the risk of incurring penalties or civil judicial or administrative
enforcement actions, the reminder letter provides him with an
opportunity to contact EPA if he has questions or needs
clarification. The reminder letter also satisfies the notice and
opportunity for consultation requirement of CERCLA section
104(e)(5)(A) if enforcement by administrative order is
contemplated, and should also satisfy any due process
requirements for record review. If there is no response or if the
response to a request is still unsatisfactory after the reminder
deadline has passed, EPA may compel compliance with the request
through either administrative or judicial action. The PRP search
manager should coordinate with the case attorney on the
enforcement strategy. The case attorney usually takes the lead on
compelling compliance.
EPA can implement the following enforcement strategies:
• issue an administrative order to compel compliance with
the request for responsive written information; or
• initiate a judicial action seeking a court order compelling
the recipients to provide the requested information or
documents; and
• seek civil non-compliance penalties.
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Administrative Order to Compel Compliance
Under CERCLA section 104(e)(5)(A), the Agency can issue an
administrative order to compel compliance with the information
request. Administrative orders are issued by EPA and require
notice and an opportunity for consultation. The order should
indicate the date on which it becomes effective and also advise the
respondent that penalties may be assessed by a court against any
party who unreasonably fails to comply with the order. If the
recipient continues to ignore the request for information, the
Agency will have to prepare a referral package to DO) requesting
enforcement of its administrative order. This process, although
potentially time-consuming, may allow EPA to obtain the needed
information. Refer to Model Administrative Order for CERCLA
Information Requests (September 30, 1994). (See Chapter 4
references, page 257.)
Judicial Action to Compel Compliance/Referrals to DOJ
CERCLA section 104(e)(5)(B) authorizes the federal government to
initiate a civil lawsuit to compel a person to respond to the
Agency’s information request. A court will provide necessary relief
as long as EPA’s demand for information is not arbitrary and
capricious, an abuse of discretion, or otherwise not in accordance
with law.’ A PRP that unreasonably fails to respond to a proper
demand for information potentially faces substantial monetary
penalties (currently up to $27,500 per day). 2 These civil penalties
1 See CERCLA section 104(e)(5)(B)(ii). 42 U S C §9694(eX5)(B)(ii) See also
United States v Tarkowski, 248 F 3d 596 (7th Cir 200 i), denying EPA access as arbitrary
and capricious.
2 The statutory penalty of $25,000 per day set forth in CERCLA section 109(a)(I)
was increased pursuant to the Civil Monetary Penalty Inflation Rule, December 31, 1996
See Chapter 4 references, page 257
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are based on strict liability. EPA does not have to prove that the
PRPs intended to violate the law by not responding in a timely
manner.
The PRP search manager should work closely with the case
attorney to determine the best strategy to pursue in view of all the
factors surrounding partial or non-compliance with a section
104(e) information request. The region should be prepared to
present the facts of the case when seeking DO) action to compel
compliance. The basis for the enforcement action (e.g., type of
information sought, why the information is important, timing
considerations) should be clearly stated in the referral in order to
streamline the process within DO). In addition, the referral should
contain evidence or findings that:
• EPA has a reasonable basis to believe that there may be a
release or threat of a release of a hazardous substance,
pollutant, or contaminant at a given site or vessel;
• the information request was issued for the purpose of
determining the need for a response or choosing or taking
any response action under CERCLA Title I, or otherwise
enforcing CERCLA Title I, with respect to the site or vessel;
• the respondent was requested to provide information
relating to one or more of the three categories of
information identified in CERCLA section 104(e) (2)(A)-(C);
and
• the respondent did not comply with the request in a timely
manner.
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The case team should calculate the penalty by determining the
maximum allowable penalty and adjusting it for litigation risk
factors. Typically the penalty will at least seek to recover any
economic gain created by the violation. In addition, the referral
should include proof of service and should address possible
defenses, such as good faith effort to comply.
For more detailed information, see the Final Model Litigation
Report and Complaint for CERCLA Section 104(e) Initiative
(January 1990), Chapter 4 references, page 257.
4.3
Issue
Administrative An administrative subpoena is an information gathering tool that
Subpoenas can be used by the PRP search team. CERCLA section 122(e)(3)(B)
authorizes EPA to issue administrative subpoenas, which require
live testimony of witnesses (subpoena ad testificandum) or the
production of documents (subpoena duces tecum) deemed
necessary for performing a non-binding preliminary allocation of
responsibility (NBAR) or “for otherwise implementing CERCLA
Section 122.” This means that in order to issue a subpoena for
testimony by a live witness, EPA must show that the expected
testimony is related to pursuit of an NBAR or other settlement
activities. The purpose of the testimony should be clearly set forth
in the supporting documents. The PRP search team should discuss
a possible subpoena with the case attorney and consult
Recommendations Concerning the Use and Issuance of
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Administrative Subpoenas under CERCLA Section 122 (August 30,
1991) as well as Guidance on Use and Enforcement of CERCLA
Information Requests and Administrative Subpoenas (August 25,
1988). (See Chapter 4 references, page 257.)
Administrative subpoenas may be judicially challenged. Therefore,
it is important to document the rationale for invoking the authority
provided in CERCLA section 122(e)(3)(B). In particular, it is
important to show how the subpoena’s issuance either furthers the
NBAR process or satisfies the criterion of “otherwise implementing
CERCLA Section 122.” Accordingly, the subpoena should describe
or identify as specifically as possible the information sought from
the recipient. If documents are requested, a list of the specific
documents or areas of inquiry is recommended. In addition, the
subpoena should inform the recipient that he or she might claim
certain information as CBI.
Generally, the procedural rights of a witness differ depending upon
the Agency’s intent to adjudicate or investigate. When the Agency
issues an administrative subpoena pursuant to CERCLA section
122 (e)(3)(B), its purpose is to investigate or gather information.
A witness served with an administrative subpoena does not have
the following procedural rights:
• right of legal counsel to cross-examine;
• right of legal counsel for the witness to “speak on the
witness record”; and
• right to receive aid in developing testimony or other forms
of “coaching” from legal counsel during questioning.
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No legal mandate prohibits the use of an administrative subpoena
as an initial information gathering tool, but the Agency prefers
using CERCLA section 104(e) information requests before issuing
administrative subpoenas. 3 Information request letters are less
intimidating and are generally more conducive to expeditious and
favorable settlements than administrative subpoenas.
Witnesses who have received an administrative subpoena are
entitled to receive the same fees and mileage reimbursement that
are paid in U.S. courts. Travel expenses are paid at the same rates
applicable to federal employees for items such as common carrier,
hotel, subsistence, and mileage. It is the region’s responsibility to
budget for these expenses within the travel budget allocated to it.
The PRP search team should work with the region’s Financial
Management Division to determine the paperwork requirements
(e.g., procurement requests, government transportation requests,
travel vouchers) when planning to use administrative subpoenas.
Referrals to Enforce an Administrative Subpoena
EPA may seek enforcement of an administrative subpoena if the
recipient fails to appear to testify, fails to provide documentary
evidence, or refuses to answer all the questions asked. CERCLA
section 122(e)(3)(B) authorizes EPA to bring an enforcement
action if this should happen. As with any legal enforcement
proceeding, EPA must refer the case to DO), following the
procedures set forth in the August 25, 1988 guidance. The
3 Regionai consultation with headquarters is not required prior to issuing
administrative subpoenas as long as the subpoena does not deviate significantly from the
model subpoena issued by the Agency in 1988. See Guidance on Use and Enforcement of
CERCLA Information Requests and Administrative Subpoenas (August 25, 1988), Chapter 4
references, page 257 If the subpoena deviates significantly from the model, consultation
with EPA’s Office of Enforcement and Compliance Assurance is required
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appropriate documents must be prepared by the case attorney,
who will seek the necessary assistance from other PRP search
team members. A referral to enforce an administrative subpoena
consists of a draft petition for an order to show cause, a draft
memorandum of points and authorities in support of the petition,
and a draft order to accompany the petition. The memorandum of
points and authorities should briefly set out the facts of the case
and address any arguments or defenses that the respondent is
likely to raise.
The referral should also contain all necessary exhibits in support of
the petition, including an affidavit of service, a copy of the
subpoena, an affidavit supporting the facts alleged in the petition
from a person with knowledge of those facts, and any other
relevant material that serves as the administrative record
documenting the subpoena process.
4.4
(The following discussion of Rule 27 is provided for
Perpetuate -
information purposes only. If you are considering taking a
Testimony Rule 27 deposition, please consult your regional and DOJ
Using Rule 27 counsel prior to taking any action.J
Where Rule 27 May Be Appropriate
Rule 27 of the Federal Rules of Civil Procedure (see Chapter 4
references, page 257) establishes a procedure for taking the
deposition of a person before a civil action is filed in federal court.
This method of obtaining testimony is used infrequently but can be
a useful tool in a situation where the government is not able to file
a case because it is not yet “ripe” for adjudication. The legal
concept of “ripeness” requires careful legal analysis. Team
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members should consult the case attorney as to whether and how
this concept applies to their particular case. When an action cannot
be brought immediately there may be a risk of losing the
testimony of key witnesses due to death, departure from the
country, or other circumstances incident to the passage of time.
Rule 27 provides a means to record this testimony and use it in
court should the witness not be able to testify.
Rule 27 can be a useful tool when conducting PRP searches. Sites
where disposal may have occurred two or three decades ago
frequently have few remaining witnesses. Those who are still alive,
such as former truck drivers, may be quite old. Although rarely
used, Rule 27 can provide the Agency with an important means of
preserving the testimony of these witnesses in the event that they
are later “unavailable” under the legal definition of that term.
Use of Rule 27 Testimony
Procedurally, the taking of a Rule 27 deposition does not differ in
any way from a deposition conducted during discovery in a civil
action (“discovery deposition”). The deponent has the right to
counsel, may be cross-examined, and testifies under oath subject
to the penalties of perjury. Furthermore, in terms of admissibility
in court, there is no difference between testimony from a Rule 27
deposition and a discovery deposition. An attorney who wants to
take a Rule 27 deposition, however, must get the court’s
permission, whereas a discovery deposition may be taken without
special permission. This involves “petitioning the court” or filing
the appropriate legal motions or briefs as necessary. This is done
by the DO) attorney and the regional case attorney. Although this
can be a lengthy process, it is certainly worthwhile to preserve
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testimony in case an important witness dies or becomes too ill to
appear at the trial. In addition, the testimony elicited from Rule 27
depositions is admissible in a wider number of circumstances than
testimony in response to an administrative subpoena issued
pursuant to CERCLA section 122(e)(3)(B). As in the case of a
discovery deposition, the other PRP5 need to be notified that a
deposition will take place and given an opportunity to attend.
Referral Procedure
Regional offices desiring to take a deposition pursuant to Rule 27
must prepare a summary referral package and forward it to DO). A
Rule 27 package is less detailed than the standard litigation report
since the requested action is less complex than initiation of a
lawsuit.
There are two components of the package. The first and most
important part is a background description of the Agency’s actions
and the need for a Rule 27 deposition. In short, this should briefly
describe the Agency’s actions at the site, including removals,
remedial actions, enforcement actions, PRP search efforts, and
other relevant activity necessary to familiarize DO] with the case.
Next, there should be a detailed discussion that demonstrates that
there is a substantial likelihood that the government would be
successful in establishing each element enumerated in Rule
27(a)(1) and of receiving the court’s approval for the deposition.
All documentary evidence, such as medical records and
correspondence with the witness, should accompany this
discussion.
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The second part of the package is the draft petition. Regional
counsel should draft the petition for approval by DO).
The completed package should be sent to the appropriate assistant
section chief at DO) for review. The DO) attorney will contact EPA’s
case attorney to discuss the resolution of any issues that may be
identified. DO) will file the petition with the court. If the court
approves the petition, DO) will provide notice to opposing counsel
and arrange to take the deposition at an appropriate location such
as the U.S. attorney’s office nearest to the deponent. If the court
denies the petition, Agency personnel may be required to provide
additional evidence to substantiate the need for the proceeding.
4.5
In cases where EPA is considering an ability to pay settlement, EPA
Perform must consider competing interests. On one hand, the Agency is
Ability To Pay charged with ensuring that hazardous waste sites are cleaned up,
that Trust Fund expenditures are recovered, and that those
Determinations
responsible for contamination pay an appropriate share of cleanup
costs. On the other hand, many individuals and businesses have
limited resources with which to satisfy the government’s claims.
The latter consideration begins the ATP analysis, sometimes
referred to as a financial assessment. The purpose of an ATP
analysis is to develop the financial and economic information
necessary to assess the ability of a PRP to address an
environmental problem, pay a penalty, or provide funds for cost
recovery. This assessment enables EPA to formulate an
appropriate negotiation and litigation strategy. ATP determinations
are usually made by staff with specialized expertise.
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4.5.1
General Policy on EPA’s General Policy on Superfund Ability to Pay Determinations
Superfund (OSRE, September 30, 1997) (see Chapter 4 references, page
257) and model language for ATP settlements provide EPA with
Ability To Pay
the means to settle the liabilities of PRPs with AlP issues in a way
that “will not put a company out of business” and avoids imposing
undue financial hardship on either businesses or individuals.
CERCLA section 122(g), titled “De Minimis Settlements,” was
amended to specifically authorize EPA to: (1) negotiate
settlements based on a PRP’s ability to pay rather than on its full
liability at the site; (2) require ATP applicants to promptly provide
EPA with the information needed to assess the PRP’s ability, or
inability, to pay; and (3) consider alternative payment methods as
may be appropriate when ATP PRPs are unable to pay the “total
settlement amount at the time of settlement.” Users of this
manual should not rely solely on information presented herein, but
should consult EPA’s ATP policies and provisions in their entirety.
ATP settlement is reserved for persons who demonstrate that
paying the amount sought by the government is likely to put them
out of business or jeopardize their viability. It is also available to
businesses and individuals who demonstrate that paying such an
amount is likely to create an undue financial hardship. Undue
financial hardship means that satisfying the government’s claim
would deprive the PRP of ordinary and necessary assets or render
the PRP unable to pay for ordinary and necessary business or
living expenses.
As the court noted in United States v. Bay Area Battery, 4 the
government must be afforded the flexibility to take ability to pay
into account in fashioning settlements under CERCLA. In
4 United States v Bay Area Battery, 895 F Supp. 1524 (N D Ha 1995).
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particular, it must consider the value of permitting businesses to
continue earning money and employing workers, and demonstrate
compassion for individual circumstances.
Conditions under Which EPA Will Consider a Claim of Undue
Financial Hardship
Although an ATP settlement is based largely on the financial
condition of the ATP candidate, other requirements have to be
satisfied as well. These requirements include the following:
• The PRP requests the ATP settlement.
• The PRP provides sufficient information to carry the burden
of demonstrating that payment of the full amount sought
by EPA is likely to create an undue financial hardship.
• The AlP analysis is based on the best available information
provided by the PRP.
• The AlP analysis considers the entire financial position of
the PRP.
• The settlement does not release the PRP from other
site-related responsibilities (e.g., providing necessary
information, site access).
• The settlement is entered into on an individual basis with
each person as defined by CERCLA.
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• The settlement amount is in addition to expenditures that
are recoverable from other sources.
• The settlement resolves all the PRP’s liability at the site.
Evaluation of an entity’s ability to pay generally consists of a
two-part analysis. The first part of the analysis, called the “balance
sheet phase,” looks at the assets, liabilities, and owner’s equity of
the PRP, calculating the amount of money available from excess
cash, sale of assets that are not ordinary and necessary,
borrowing against assets, and owner’s equity. The second part of
the analysis, called the “income and cash flow statement phase,”
looks at the income and expenses of the PRP and generally
calculates “available income” for a Superfund settlement over a
five-year period. The number of years of available income,
however, may be changed when circumstances warrant.
ATP Information
Sources
EPA has developed the following enforcement computer models for
analysis of financial issues that affect enforcement actions. These
models are screening tools only and their use does not constitute a
thorough analysis. In addition to the models, manuals are
available that describe the use of ATP analyses and the
methodologies relied on to perform them. (See Chapter 4
references, page 257.)
ABEL Model
ABEL is a computer program designed to evaluate the ability to
pay of firms held liable for environmental penalties or Superfund
cleanups, and is intended to be used as a screening tool. It
estimates the probability that a firm can pay a penalty, contribute
to the cleanup of a Superfund site, or invest in pollution control
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equipment. ABEL is designed to accept tax data input directly from
tax returns submitted by C corporations, S corporations, and
partnerships (i.e., IRS forms 1120, 1120A, 1120S, and 1065,
respectively). ABEL is convenient to use because virtually all
business entities are required to file tax returns. In the absence of
tax return data, analysis of private corporations can be performed
using financial statements, loan applications, and Dun & Bradstreet
reports, etc. ABEL also presents a two-phase analysis of a firm’s
financial health:
1. The financial profile presents a summary of the firm’s
balance sheet, income statement, and cash flow; ABEL also
computes five financial ratios to provide a rudimentary
measure of the company’s financial health.
2. The ATP analysis estimates future cash flow based on the
company’s past performance.
INDIPAY Model
INDIPAY is a computer program designed to evaluate the ability to
pay of entities for which the individual owner is responsible for the
penalty or contribution, such as sole proprietorships, partnerships,
and private individuals. The model requires one to three years of
individual tax return data and the Individual Financial Data
Request Form, a 10-page questionnaire filled out by the applicant. 5
INDIPAY provides two types of analysis:
questionnaire developed by Region IX can be found in Appendix K This is an
example, each region may develop its own methods of collecting financial data See aiso
footnote 6
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1. Phase 1 is a quick assessment of an individual’s level of net
income and complexity of personal finances. If an individual
has low income and uncomplicated finances, a Phase 2
analysis is unnecessary.
2. Phase 2 estimates whether the individual can pay a
penalty, based on cash flow and ability to borrow additional
funds.
These two scenarios are discrete, independent analyses. Their
results should not be combined to determine ability to pay;
instead, the lower of the two results is usually relied on.
MUNIPAY Model
The Municipal Ability to Pay Model (MUNIPAY) evaluates a
municipality’s, town’s, sewer authority’s, or drinking water
authority’s claim that it cannot afford compliance costs, cleanup
costs, or civil penalties. MUNIPAY performs two different analyses,
a demographic comparison, which uses U.S. Census data to
compare the municipality to state and national norms, and an
affordability calculation, which assesses the amount of currently
available funds and, if necessary, funds available through
financing.
CASHOUT Model
The CASHOUT Model is a tool which may assist EPA staff in
developing settlement figures for certain Superfund settlements,
commonly referred to as “cash outs.” A common application
includes de minimis settlements. The model calculates the present
value of cleanup costs for a given Superfund site.
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Other Sources of Information
Other potential sources of information for conducting financial
analyses include:
• THE NATIONAL ENFORCEMENT INVESTIGATIONS CENTER. NEIC
staff with financial analysis expertise are potential
resources for conducting financial analyses.
• DUN & BRADSTREET REPORTS. Dun & Bradstreet (D&B)
provides financial information on companies for a fee. D&B
reports are frequently used for the purpose of evaluating
credit worthiness. D&B reports provide information on
company finances, payment history, and officers. D&B
profiles allow comparison of the financial condition of
similar companies.
• AUDITED STATEMENTS. Audited statements are financial
statements made by an independent auditor. An
independent auditor is an accountant who follows
procedures required by generally accepted accounting
principles (GAAPs) and generally accepted auditing
standards (GAAS). Information from audited statements is
consistent and is considered verifiable. Their footnotes
often describe related party transactions and contingencies.
These documents are prepared for purposes other than ATP
analysis, however, and are verifiable in the context of
accounting purposes only. If audited statements are not
available, a review or compilation should be used.
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• UNAUDITED STATEMENTS. Unaudited statements are financial
statements usually prepared by someone with an
accounting background for the management of a company.
These statements are useful in that they are flexible in
providing types of information such as environmental
expenditures, but they are not verifiable. For a companys
fiscal year, financial or unaudited statements are usually
provided when an audit review or compilation is not
available. For the most recent year-to-date financial
information, unaudited statements are expected.
• TAX RETURNS. Federal income tax returns are among the
most important documents for ATP analysis because they
typically contain standardized information that can be used
directly with the ABEL model. Returns must be signed, and
include all supporting schedules. The Agency should
request that each AlP candidate (business or individual)
submit federal income tax returns for the past five years
and a completed financial questionnaire. 6
Forms that should be requested from different types of for-profit
PRPs and individuals include:
• Form 1120 or Form 1120A (short form) plus supporting
schedules for regular (Subchapter C) corporations;
6 1’he case Learn should consult the financial analyst who will he reviewing the A ft
candidates financial information to ensure that all relevant information is requested. Region
IX has developed questionnaires l ir financial information relating to AlP settlements with
individuals, businesses, and trusts. See Appendix K for the Financial Statements for
Individuals. Businesses, and I’rusts.
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• Form 1120S plus supporting schedules for Subchapter S
corporations (Subchapter S corporations may not have
more than 75 shareholders and must meet other
requirements to qualify for this tax treatment.);
• Form 1065 plus supporting schedules including Schedule
K-i for each partner to a partnership and each partner’s
Form 1040;
• Form 1040 plus supporting schedules, which should include
Schedule C (business income) for sole proprietorships (Sole
proprietors should also submit an Individual Financial Data
Request Form.); and
• Form 1040 plus supporting schedules for individuals
(Individuals should also submit an Individual Financial Data
Request Form.).
Other financial information resources include:
• U.S. SECURITIES AND EXCHANGE COMMISSION. The SEC
requires all public companies (except foreign companies
and those with less than $10 million in assets and 500
shareholders) to file registration statements, periodic
reports, and other forms electronically through its
Electronic Data Gathering, Analysis, and Retrieval system
(EDGAR). Documents submitted to the SEC in compliance
with federal laws and SEC regulations typically contain a
mixture of information from audited statements, tax
returns, and other sources. This information is available
from the SEC on line. (See Chapter 4 references, page
258.)
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• COURT RECORDS. These are a potential source of
information, but locating them requires someone familiar
with courthouse searches. Court records are usually
reliable, but obtaining them can be costly and
time-consuming.
• ON-LINE SOURCES FOR PRP INFORMATION. Information from
on-line databases may be useful in clarifying or verifying
information obtained from other sources, uncovering
hidden assets, identifying related companies, and other
purposes. See Appendix I for a list of on-line sources of PRP
information.
• INFORMATION REQUEST LETTER RESPONSES. Non-PRP5, such
as owners of nearby properties, often have valuable
information about a site and its operations. Information
request letters may be issued to any individual who may
have information about a site. The PRP search team should
consider issuing CERCLA section 104(e) requests to any
party that might have information, whether or not the party
is likely to be named as a PRP.
Performing
Property Appraisals
[ Note: If the U.S. is obtaining an appraisal for purposes of
acquiring property, it must adhere to very strict appraisal
rules that are, in part, codifiedJ
The Agency may need to assess the monetary value of certain
contaminated real property to support remedial actions evaluated
or undertaken in accordance with the NCP. This may include
purchasing land and relocating residents. Property appraisals may
be conducted both before and after remedial action. If EPA’s
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response action increases the fair market value of the property,
EPA may have a CERCLA section 107(r) “windfall” lien for the
increase in fair market value attributable to EPA’S response action
up to the amount of EPA’s unrecovered response costs. Property
appraisals may also be conducted during a PRP search to
determine the assets of a PRP. For more detail on windfall liens,
consult the Interim Enforcement Discretion Policy Concerning
“Windfall Liens” Under Section 107(r) of CERCLA (July 16, 2003).
(See Chapter 4 references, page 258.)
Since professional real estate appraisals may be expensive, each
appraisal should be specifically authorized by the EPA primary
contact when a contractor is conducting the PRP search. Less
costly estimates of the “as is” property value may be developed by
parties other than professional real estate appraisers. In either
case, the PRP search team should carefully evaluate whether and
what kind of property appraisal is needed before committing funds
to conduct a property assessment. The researcher should also
obtain the names of all Agency and DO] personnel who may be
using the information obtained from the property appraisal.
Because appraisal assumptions affect the usefulness of value
estimates, it is important for the researcher to be aware of the
assumptions involved in the search.
S
All the assumptions made when performing the appraisal should
be noted. For example, the date on which remediation will be
completed and the property will reach its post-remediation value
can only be estimated. “As is” and “as modified” property
valuations need clear and complete descriptions of the property
modifications as well as consideration of “highest and best use” of
modified property, i.e., its most productive appropriate use. In
addition, it should be noted whether there is a fee simple title that
is free and clear of all debts, liens, and encumbrances.
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Selecting and retaining a real estate appraiser is an important part
of the property appraisal process. To obtain information on a
recommended real estate appraiser, the researcher may go to the
local Chamber of Commerce, obtain member lists from appraiser
associations such as the Institute of Real Estate Appraisers, or use
the yellow pages. After researching the lists of property
appraisers, several of these firms should be contacted in order to
address the planned research, get a feel for the appraiser’s
qualifications and credentials, and ascertain if there are any
potential conflicts of interest. If a contractor is involved in the
selection process, it should clear its choice with the Agency.
Finally, once the appraiser is approved by EPA, a contract should
be prepared that includes a list of written assumptions for the
appraiser and sets a ceiling on costs unless first notified by the
appraiser.
The need for a property appraisal should be considered in the PRP
search planning process. Any scheduling requirements should be
clearly explained to the appraiser prior to signing a contract. If the
schedule cannot be met “up front,” another appraiser should be
selected. The existence of nearby, comparable property recently
subjected to value assessment should be considered prior to
performing the property appraisal. Close contact and coordination
must be maintained among all parties involved (EPA, contractor,
appraiser) to define the comparable search area and be aware of
scheduling and budgetary impacts. Finally, the appraiser should
contact the EPA primary point of contact to determine if site access
is required. If access is required, EPA should contact the site
owner and request written consent. The Army Corps of Engineers
may be available to perform property appraisals, pursuant to
existing interagency agreements.
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4.6
At sites where PRPs have agreed to perform cleanup (either
Perform . .
remedial action under a CD, or non-time-critical removal activity
Insolvent and under an AOC, EPA may have committed itself to compensate a
portion of the shares of insolvent and defunct parties under the
Defunct
Interim Guidance on Orphan Share Compensation for Settlors of
Determinations Remedial Design/Remedial Action and Non-Time-Critical Removals
(June 4, 1996)! (See Chapter 4 references, page 258.)
4.6.1 This interim guidance applies where:
Definition
• EPA initiates or is engaged in ongoing negotiations for RD,
RA, or a non-time-critical removal at an NPL site;
• a PRP or group of PRPs agrees to conduct the RD/RA or RA
pursuant to a CD or the non-time-critical removal pursuant
to an AOC or CD; and
• an orphan share exists at the site.
The guidance does not apply at owner/operator-only sites or to
federal facilities.
Orphan Share Definition
The term “orphan share” refers to the share of responsibility that
is specifically attributable to parties EPA has determined are:
7 Note that this guidance does not apply to CERCLA cost recovery settiements in
which the parties are not agreeing to perform RD/RA work or a non-time critical removal.
In these situations, reference the Addendum to the Interim CERCLA Settlement Policy
issued on December 5, 1984 (September 30, 1997) (see Chapter 4 references, page 258),
which provides the regions with direction for addressing potential compromises of CERCLA
cost recovery claims due to the e ustence of a significant orphan share
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• potentially liable;
• insolvent or defunct; and
• unaffiliated with any party potentially liable for response
costs at the site.
The orphan share does not include liability attributable to:
• unallocable waste;
• the difference between a party’s share and its ability to pay
(the “delta”); or
• those parties such as de micromis contributors, MSW
contributors, or certain lenders or residential homeowners
that EPA would not ordinarily pursue for cleanup costs.
A party is considered insolvent if EPA determines that the party
has no ability to pay.
A party is considered defunct if it:
• has ceased to exist or ceased operations; and
• has fully distributed its assets such that the party has no
ability to pay.
Insolvent and For both insolvent and defunct determinations, EPA’s investigation
must indicate that there is no successor or other affiliated party
Defunct
that is potentially liable.
Determinations
Regions have the flexibility to determine the appropriate level of
information gathering and analysis necessary to determine if a
party is insolvent or defunct. In many situations, there will be
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information readily available demonstrating that a party us
insolvent or defunct, e.g., a CERCLA section 104(e) response. In
most cases, however, some additional information gathering will
be necessary.
The General Policy on Superfund Ability to Pay Determinations
(September 30, 1997) (see Chapter 4 references, page 257) also
may be useful in making insolvent and defunct determinations.
Although ATP is a distinct determination, the analysis is similar to
that required to make an insolvent and defunct determination.
The standard for determining a party’s limited ability to pay is
whether a payment of the amount sought by the government is
likely to create an extreme financial hardship. Under ATP analysis,
if EPA makes a finding that satisfaction of an environmental claim
will prevent a PRP from paying for ordinary and necessary
business expenses or ordinary and necessary living expenses, the
proposed settlement amount should be reduced. This standard of
“extreme financial hardship” applies when determining ATP parties
for purposes of determining the orphan share at a site.
Specific Methods of Gathering and Analyzing Information
There are three levels of information gathering and analysis that
may be considered in making orphan share determinations:
1. An initial screening process that focuses on public
information, e.g., Census Bureau information, D&B reports,
SEC filings, and limited financial submissions, e.g., five
years of tax returns;
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2. Computer models (e.g., ABEL, INDIPAY, MUNIPAY,
CASHOUT Models), if the initial screening process indicates
further analysis is required; and
3. Services of the region’s financial analysts or of a financial
analyst through contract support.
It is up to the region to determine the appropriate level of analysis
for making an orphan share determination. Note that this applies
only to the orphan share determination; the ATP guidance still
requires the use of a financial analyst for an ATP settlement.
Tips and techniques to determine if a party is bankrupt include first
checking with your regional bankruptcy contact person. This may
save time and prevent duplicative effort. If she does not know the
current status of the party, consider taking the following steps:
• Call the clerk of the bankruptcy court to see if a bankruptcy
petition has been filed and whether it was granted or
denied in cases of suspected insolvency. Once the date of
the filing and the bankruptcy docket number have been
obtained, a copy of the petition, list of secured creditors,
and any other orders issued by the court granting or
denying a petition may be reviewed. If the records are at
the court, the court could arrange for information to be
sent to a regional office, but this could involve a sizable fee.
If the case is closed, the records may be at a federal
records center. Access to these records may be obtained
through the clerk of the court.
• Check with regional information managers for on-line
systems, which may provide access to federal bankruptcy
court records, dates of filings, and other relevant
information.
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If the party is bankrupt, a bankruptcy petition that has been
granted does not necessarily indicate that a PRP is insolvent for
purposes of the orphan share reform. The type of bankruptcy
claimed is important. If a claim of Chapter 7 bankruptcy (complete
dissolution and discharge) was granted, as opposed to a Chapter
11 bankruptcy (reorganization), it is more likely that the party
may be determined to be insolvent for purposes of the orphan
share reform.
To determine if a party has financial difficulties outside
bankruptcy:
• Check to see if the PRP has fallen behind in payments to
creditors and what the consequences of non-payment have
been. For example, a case team may want to determine
whether creditors have moved to take control of accounts
receivable or secured property, or whether a creditor has
arranged to auction secured property. Some of this
information may be found in D&B reports. Other
investigative techniques may be required. Consult CIs and
financial analysts to identify further steps to take.
• Check the UCC filings to determine if creditors have
perfected liens against a party’s property. UCC filings are
available on line and are filed with the secretary of state.
To determine if a corporation has ceased to exist or ceased
operations:
• Check with the secretary of state to determine whether a
certificate of dissolution has been filed in the case of a
suspected defunct corporation.
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• Check to see when the last annual filing was made. If one
has not been made recently, this may be an indication that
the corporation is going out of business or has ceased to
operate; however, it could also indicate it is simply late in
filing, so look beyond this record.
• Check to see if a state has revoked a corporate license.
States may revoke corporate licenses if corporations are
not in good standing for non-payment of the annual fee or
other reasons.
To determine if a municipality or other government entity has
ceased to exist:
• Check whether the entity has lost its status as a
subdivision, public agency, or instrumentality of the state.
To determine if the PRP has additional resources:
• Ask the PRP to disclose its ability to recover expenses
associated with the site in its response to CERCLA section
104(e) requests or financial questionnaires. A potential
orphan PRP, like an ATP candidate, may be able to recover
expenses from other sources. These sources may include
insurance recoveries, indemnification agreements,
contribution actions, and property value increases resulting
from cleanup activities. If these funds are significant and
likely to be recovered, the recovered expenses should be
considered recoverable by the United States so that the
party cannot be considered an orphan.
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Perform Waste
Stream
Analyses
4.7.1
Industrial Surveys
4.7.2
Process Chemistry
In some cases where documentation is very limited as to the
nature and volume of wastes disposed of at a site, a waste stream
analysis of the industrial activities conducted at the site is
performed and the resulting information is entered into a
transactional database. This analysis encompasses data derived
from industrial surveys, process chemistry analyses, and waste
stream inventory documentation.
The primary focus of an industrial survey is to identify parties who
owned or operated the site and may have contributed hazardous
substances to the site. This is accomplished through surveying
local businesses, reviewing government records, and reviewing
various industrial manuals and directories. This task is particularly
useful when little information is available on the site from
documents, interviews, and other sources as addressed previously
in this manual, or when the site is in an area where neighboring
facilities may have contributed to the contamination. If the site is
located in a large metropolitan area, hundreds of industries could
be PRPs.
The objective of a process chemistry analysis is to identify the
nature and volume of wastes attributable to specific industries or
companies. This determination is very important when little
documentation exists to indicate who disposed of the wastes at a
site. This task is usually conducted, however, only when the site
has a history of receiving wastes from off-site generators. A
thorough knowledge of industrial technology is essential for the
analysis, which should be performed by an environmental scientist
or process chemistry engineer.
V
4.7
Analysis
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Local industries are grouped according to products generated.
Wastes associated with the production of those products are
subsequently compared to contaminants found at the site. Once
the person conducting the PRP search establishes a link between
an industry and wastes disposed of at the site, additional data
gathering efforts can be initiated to further define an identified
company’s specific waste generating and handling activities.
4.7.3
The primary objective of performing a waste stream inventory is to
Waste Stream
compile an accurate list of wastes that were stored or disposed of
Inventory . . .
at a site. This is accomplished by reviewing all waste stream
records, operating log books, and analytical reports. This task may
be required to determine the types and quantities of waste
contributed by each PRP. Knowing the types of waste disposed of
at a site is necessary to establish a relationship between the site
and the PRPs. When a complete inventory of wastes is developed,
it can be used in conjunction with process descriptions and
industrial surveys to identify parties that may have been involved
in disposal activities at the site. Before initiating a waste stream
inventory, the investigator must know the locations and types of
detected contamination.
In some cases, waste output models of a party’s production facility
are used. For example, if a facility manufactures 50 units in a
given year with a corresponding by-product of two gallons of
hazardous materials, then in the absence of other information it
may be assumed that two gallons of by-product were generated in
a recordless year if manufacturing remained at 50 units.
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4.7.4
Mine Sites For mine, mill, and smelter sites, it is important to evaluate the
quantity of hazardous substances that might be released through
various media, including acid generation potential and wind
transport of dusts. Many mine sites have long histories and have
been owned or operated by many parties. Since technologies for
the extraction and processing of ores have improved, it may be
appropriate to allocate response costs on the basis of volume and
toxicity with earlier operations bearing a larger share.
4.8
Interim Final The interim final PRP search report is an expanded version of the
baseline report. It includes substantial information on generators
Report and transporters and focuses specifically on establishing liability
Preparation and and financial viability. The format for the interim final report is the
- same as for the baseline report. Section 3.10 of this manual
Review contains a more complete discussion of the suggested report
format.
An interim final PRP search report:
• provides justification for notice to a party of potential
liability;
• identifies owner/operators and persons who arranged for
treatment or disposal, such as generators and transporters;
• serves to support litigation;
• meets special notice requirements;
• provides information to negotiate settlement terms or take
unilateral enforcement action;
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• lists parties who were considered possible PRPs during the
course of the search but were dropped from consideration
for notice; and
• documents why parties are no longer considered PRPs.
In general, the interim final PRP search report should be
completed in time for the issuance of SNLs and the release of
information under CERCLA section 122(e), which includes the PRP
names and addresses and the volume and nature of the
substances at the site.
4.8.1
Interim Final Information on new PRPs, as well as additional evidence on the
liability of existing PRPs, may be uncovered after the completion of
Report Followup
the interim final report. Therefore, unless there is a full settlement,
the search may not end with the completion of the interim final
report, the issuance of general and special notice letters, or the
release of the contractors from a work assignment. Keep this in
mind when planning and implementing a PRP search.
4.9
Pursuing CERCLA Section 106 and 107 Litigation’
Litigation and
In the case of a cost recovery referral, EPA sends a direct cost
Cost Recovery
referral package to DO) for litigation. As DO) develops the case,
regional staff will likely be called upon to perform litigation support
8 1f PRPs don’t agree to perform work, whether it’s the RD/RA, a removal, or
Rl/FS, EPA’s first and strong preference is to issue a UAO If EPA fails to reach an
agreement with the PRPs to conduct the work, EPA should issue a CERCLA section 106
UAO to all appropriate PRPs ordering them to conduct the response action. If the PRPs fail
to comply with the (JAO, EPA may initiate ajudicial action requesting Injunctive relief
and/or CERCLA section 106 penalties for noncompliance. EPA may also initiate a
Fund-financed response action
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activities. These may include consulting with case attorneys on
technical issues, reviewing PRP liability evidence, attending
depositions, and testifying in court. The RPM or OSC often will
budget for and manage litigation support contractors. At a
minimum, cost recovery litigation requirements include:
• ensuring that the PRP search is complete and includes, to
the extent EPA determines necessary, the entire universe of
PRPs, PRP liability information that meets evidentiary
standards, and thorough and accurate financial analyses;
• ensuring that the administrative record is complete;
• documenting costs and work performed which are
attributed or allocated to the site, including both direct and
indirect costs;
• sending demand letters; and
• negotiating with PRPs to try to obtain a settlement, thereby
avoiding the need for a referral and litigation.
Litigation is not the preferred route, but it is available if necessary
to get site remediation started or to recover the Agency’s response
costs. In either case, a thorough PRP search is essential to the
success of negotiation or litigation.
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Cost Recovery
There are five contexts in which the Agency traditionally recovers
its costs:
1. If the Agency funds a removal or RI/FS and the PRP5 agree
to perform the RD/RA, the Agency may recover its past
costs as part of the RD/RA settlement.
2. If the Agency funds a removal or the RI/FS and one group
of PRPs agrees to perform the RD/RA while another group
of viable PRPs does not agree to do so, the Agency may sue
the non-settlors separately for unreimbursed response
costs.
3. If the Agency funds the RD/RA because there was no
settlement, it may seek all costs in a cost recovery action.
4. Where the time between the completion of a removal,
RI/FS, or RD and the initiation of on-site construction is
likely to exceed three years, EPA may sue for past costs
and seek a declaratory judgment on liability.
5. Where there are multiple remedial operable units, EPA may
pursue cost recovery at the first operable unit and seek
declaratory judgment on liability for its costs at subsequent
operable units, assuming that the operable units share the
same set of PRPs.
Bankruptcy, or the possibility of bankruptcy, can arise in any of
these contexts. When it becomes a factor, it may be advisable to
initiate cost recovery earlier to strengthen EPA’s claims.
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Statute of Limitations
CERCLA section 113(g)(2) states that a cost recovery action must
be commenced:
• for a removal action, within three years after completion of
a removal action, except that such cost recovery action
must be brought within six years after a determination to
grant a waiver under CERCLA section 104(c)(1)(C) of this
title for continued response action; and
• for a remedial action, within six years after initiation of
physical on-site construction of the RA, except that if the
remedial action is initiated within three years after the
completion of the removal action, costs incurred in the
removal action may be recovered in the cost recovery
action.
While CERCLA outlines the general parameters for timing of a cost
recovery action, there are a number of site-specific issues that
may be involved in determining when the statute of limitations
(SOL) runs. Further consultation may be necessary to resolve
these issues. For example, under CERCLA section 113(g)(2)(B),
removal costs may be pursued as part of the cost recovery for
remedial action if the remedial action is initiated within three years
of completion of the removal.
At sites where there has been a series of remedial and removal
actions, close attention must be paid to the SOL for each action.
[ See CERCLA section 121(f)(1)(F) (notification of state, including
tribes) and CERCLA section 122(j)(l) (federal natural resource
trustee including DO]/BIA for tribes) for additional information
related to SOLs.]
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In selecting sites at which to pursue cost recovery, EPA places a
priority on sites at which more than $200,000 were spent on the
response action. If EPA decides to proceed with cost recovery,
three parallel activities are conducted:
1. Ensuring that the liability information collected in the PRP
search meets evidentiary standards;
2. Documenting the costs of the response action; and
3. Reviewing the compilation of the administrative record.
Once the Agency’s costs have been documented and the PRPs are
sufficiently identified, EPA sends demand letters to the PRPs. The
demand letters notify the PRPs of their liability for EPA’s cleanup
costs. If negotiations result in a settlement, EPA and the PRPs may
enter into an AOC or CD whereby the PRPs agree to reimburse EPA
for its costs. If total U.S. government response costs at the site
exceed $500,000 (excluding interest), DOJ must concur on the
terms of the settlement.
If one or more PRPs fail to reimburse EPA for the costs itemized in
the demand letter(s), EPA may forward a referral to DO]
recommending litigation for cost recovery. Cost recovery actions
for removals should be referred to DO) as soon as possible after
completion of the removal action, and ideally within one year after
the completion date (unless the region plans to recover removal
costs at the same time as remedial costs under CERCLA section
113(g)(2)(B) because it expects the RA to begin within three years
of completion of the removal action). In all cases, removal cost
recovery actions should be referred to DO) no later than six
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months before the SOL will expire. Cost recovery actions for
remedial actions should be referred to DO) at the time of initiation
of physical on-site construction of the RA.
As an alternative to referring a cost recovery case to DO) for
immediate litigation, EPA may enter into a tolling agreement with
the PRPs. A tolling agreement suspends the running of the statute
of limitations either for a specified period or until specified events
occur. By entering into a tolling agreement, EPA eliminates the
need to file a cost recovery lawsuit immediately, thereby providing
additional time to determine whether litigation is necessary. PRPs
that enter into a tolling agreement do not admit any liability, agree
to pay anything to the government, or compromise any of their
existing legal rights.
Cost Recovery for Removals
Completing a removal will generally trigger an action to recover
the costs of the removal. EPA will seek recovery of all costs if the
removal was Fund-lead, or oversight costs if it was performed by
the PRP5 pursuant to a unilateral administrative order (UAO). As a
general rule, cost recovery cases involving post-SARA removals
(except those with CERCLA section 104(c)(1)(C) waivers) must be
filed within three years of completion of the removal. If a remedial
action is initiated within three years after the completion of the
removal action, however, removal costs may be recovered in the
RA cost recovery action, but will not be in every instance. The
facts of a particular case frequently dictate when the “completion”
of a removal has occurred at a site, and when the statute of
limitations begins to run. In general, however, the date of
demobilization of cleanup personnel at a site, usually evidenced by
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a Pollution Report or Removal Closeout Memorandum, may
indicate that the removal action has been completed. In this
instance, the actual date of demobilization, not the date of the
Report or Memorandum, represents the date of completion. Due to
the fact-intensive nature of removal completion determinations,
however, OSRE or OGC should be consulted whenever concern
exists regarding the SQL for cost recovery. This is so because an
incorrect determination as to when removal completion occurred
will very likely bar the Agency from recovering its costs.
Cost Recovery for Sites in the Remedial Process
Cost recovery activities at sites in the remedial process are a
function of past expenditures for removals, RI/FS, or RD; the
outcome of RD/RA negotiations; and timing concerns related to
the SOL date triggered by “initiation of physical on-site
construction” of the RA.
“Initiation of physical on-site construction” represents the date
when cleanup personnel went on site and undertook some type of
physical activity, such as erecting a fence or installing utilities, that
initiated the remedial action. Included among activities that do not
constitute physical on-site construction are actions of an
administrative nature, such as hiring contractors. Similar to the
removal completion determination, the facts of the case are
important, such that OSRE or OGC must be consulted when
concern exists regarding the determination of physical on-site
construction for SQL purposes. The physical on-site construction
determination is critical, because a mistaken determination will
likely bar the Agency from recovering its costs.
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CHAPTER 4 REFERENCES
Name Section Location
Disk Repository of Current CERCLA 4.1 http://intranet.epa.gov/oeca/osre/
Section 104(e) Questions dod 960229.html
(June 17, 1999)
Model Administrative Order for 4.2 http://www.epa.gov/compliance/
CERCLA Information Requests resources/policies/cleanup/superfund/
(September 30, 1994) modao-cerinf-mem .pdf
Civil Monetary Penalty Inflation Rule 4.2 http ://www.epa.gov/compliance/
(December 31, 1996) resources/policies/civil/penalty/
cmpiar. html
Final Model Litigation Report and 4.2 http://intranet.epa.govfoeca/osre/
Complaint for CERCLA Section 104(e) docs.html
Initiative (January 1990)
Recommendations Concerning the Use 4.3 http://www.epa.gov/compliance/
and Issuance of Administrative resources/policies/cleanu p/Su perfu nd/
Subpoenas under CERCLA Section 122 subpoena-cercla-mem.pdf
(August 30, 1991)
Guidance on Use and Enforcement of 4.3 http://www.epa.gov/compliance/
CERCLA Information Requests and resou rces/ policies/cleanu p/su perfu nd/
Administrative Subpoenas cerc-infreq-mem.pdf
(August 25, 1988)
Federal Rules of Civil Procedure, Rule 4.4 http://www.wvnb.uscourts.gov/
27, 28 U.S.C frcp.htm#rule27
General Policy on Superfund Ability to 4.5.1 http://www.epa.gov/compliance/
Pay Determinations resources/policies/cleanup/superfu nd/
(September 30, 1997) genpol-atp-rpt.pdf
Index of OECA enforcement computer 4.5.2 http://www.epa.gov/compliance/civil/
models and user manuals programs/econmodels/index.html
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September 21 .
CHAPTER 4 REFERENCES
Name Section Location
Financial Statements for Individuals, 4.5.2 Appendix K
Businesses, and Trusts
EDGAR 4.5.2 http ://www.sec.gov/edgar.shtml
On-Line Sources of PRP Information 4.5.2 Appendix I
Interim Enforcement Discretion Policy 4.5.3 http ://www.epa .gov/compliance/
Concerning “Windfall Liens” Under resources/policies/cleanup/superfund/
Section 107(r) of CERCLA interim-windfall-lien.pdf
(July 16, 2003)
Interim Guidance on Orphan Share 4.6 http://www.epa.gov/compliance/
Compensation for Settlors of Remedial resources/policies/cleanup/superfund/
Design/Remedial Action and Non- orphan-share-rpt.pdf
Time-Critical Removals (June 4, 1996)
Addendum to the Interim CERCLA 4.6.1 http ://www.epa .gov/compliance/
Settlement Policy Issued on resou rces/policies/cleanup/su perfu nd/
December 5, 1984 adden-settle-mem . pdf
(September 30, 1997)
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Interim Policy on CERCLA Settlements Involving
Municipalities or Municipal Wastes
ESS Contracts POs and COs
Multi-Site Open Work Assignment
Checklist for RemovallPre-remedjal Sites
Revised Policy on Discretionary Information
Release Under CERCLA
Quick Reference Guide for Using
CERCLIS!Wastel.AN
Checklist for PRP Search Tasks
PRP Search Enhancement Team Members/Contacts
On-Line Sources of PRP Information
Superfund Enforcement Directory
Financial Statements for Individuals, Businesses,
and Trusts
Acronyms and Abbreviations
Glossary
Chapter References - _______________
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_ dO ‘Ii ,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20480
, .
t OSWER DIRECTIVE
09834.13
DEC 6 I 9
ScuD wASTE AP4O EYSPGENCV RESPONSE
SUBJECT: Interim Policy on CL Settlements Involving
Municipalities or Munici Wastes
FROM: Don R. cla / 7
Assistant Administra or
TO: Regional Administrators, Regions I - X
I. CI!ION
A) Foeus of Interim Policy
This memorandum establishes EPA’ a interim policy on
settlements involving municipalities or municipal wastes under
Section 122 of the Comprehensive Environmental Response,
compensation, and Liability Act of 1980 (CERCL& or Superfund) as
amended by the Superfund Amendments and Reauthorization Act of
1986 (SARA). In particu.tar, this interim policy indicates how
EPA will exercise its enforcement discretion when pursuing
settlements which involve municipalities or municipal wastes.’
The municipal wastes addressed by this interim policy are
municipal solid waste (145W) and sewage sludge as defined below.
This interim policy has been developed to provide a consistent
Agency-wide approach for addressing municipalities and municipal
wastes in the Superfund settlement process.
This interim policy does not provide an exemption from
potential CERCLA liability for any party; potential liability
continues to apply in all, situations covered under Section 107 of
ci.a.
Prii Rac &d Pap.,

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OSWER DIRECTIVE #9834.13
Although this interim policy focuses on municipalities and
municipal waste., it address.. how privat, parties and certain
kinds of commercial, institutional, or industrial wastes viii be
handled in the settlement proces. as well • It is important to
address private parties and certain kinds of commercial,
institutional, or industrial vast.. in this interim policy
becaus. private parties sometimes bandi. municipal vast.. or
vastei of a similar nature and becaus. municipal and private
party wast streams are sometime. co-disposed at sites,
particularly municipal landfills • The kinds of commercial,
institutional, or industrial wastes covered by this interim
policy include “trash from a commercial, institutional, or
industrial entity” and “low-hazardous industrial wastes” as
defined below.
There are three fundamental issues addressed by this interim
policy. First is whether to notify generators/transporters of
P 1 5W or sewage sludge that they are considered to be potentially
responsible parties (PRPs) and to include them in the Superfund
..ttlem nt process. Such partie. are usually municipalities,
although they may include private parties as well. Second is how
municipalities should be handled in the Super! und settlement
process when the decision is made to notify them that they are
PRPs under Section 107 (a) of Third is how the treatment
of municipalities and municipal wastes under this interim policy
affects the treatment of private parties and certain kinds of
2

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OSWER DIRECTIVE 19834.33
commercial, institutional, or industrial wastes in the Superfund
settlement process.
Key questions specifically addressed as part of this interim
policy include the following:
o Information Gatherina : Should municipalities be
included in the Agency’ a information gathering process?
Should generators/transporters of )ISW or sewag, sludge
be included in the information gathering process?
o Notification : Shou.i municipalities be notified that
they are PRP5? Should generators/transporters of MSW
or sewage sludge be notified as PRP?
o Settlement . : Nov should municipalities be handled in
the Superfund settlement process? What settlement
process and settlement tools should be used to
facilitate esttl.w t involving municipalities or
municipal vast..?
o Private Parties : Nov do.. the treatment of
municipalities and municipal wastes affect the Agency’s
treatment of private parties and certain kinds of
ce .rcja1 , institutional, or industrial wastes?
3

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OSWER DIRECTIVE *9834.13
B) Isv Terms Used in Interim Policy 2
Th. following defines the key terms used in this interim
policy:
o The term Nmunjcipa litiesfl refers to any political
subdivision of a State and may include cities,
counties, towns, townships, and other local
governmental entities.
o The term “municipal solid waste” refers to solid waste
generated primarily by households, but may include some
contribution of wastes from commercial, institutional
and industrial sources as well • As defined under the
Resource Conservation and Recovery Act (R A), 1 4 5W
contains only those wastes which are not required to be
managed as hazardous wastes under Subtitle C of RCRA
(e.g., non—hazardous substances, household hazardous
wastes (HEW), or small quantity generator (SQG)
wastes). Although the actual composition of such
wastes varies considerably at individual sites, 145W is
aenerally composed of large volumes of non—hazardous
substances (e.g., yard waste, food waste, glass, and
2 The definitions provided under this section are for the
purpose of this interim policy only. Where possible, this
interim policy includes already existing definitions used under
other Federal environmental programs (e • g., under the Resource
Conservation and Recovery Act or the Clean Water Act). However,
nothing in this interim policy affects the regulatory efforts of
these other programs.
4

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OSWER DIRECTIVE #9834.13
aluminum) and may contain small quantities of household
hazardous wastes (e.g., pesticides and solvents) as
veil as small quantity generator wastes. 3 Many
industrial solid wastes and some commercial and
institutional solid wastes are managed separately from
household wastes, but may enter the 1 ( 8W vast. stream.
o The term “municipal landfill” refers to any landfill,
whether publicly or privately owned, that has received
municipal solid waste for disposal.
o The term “sewage sludge” refers to any solid, semi-
solid, or liquid residue removed during th. treatment
of municipal waste water or doam tic sewage.’
o The term “trash from a commercial, institutional, or
industrial entity” refers to waste which is very
All household wastes, including household hazardous
wastes, are unconditionally exempt from the Federal hazardous
waste regulations promulgated under Subtitle C of R A (See 40
CTR Section 261.4 (b) (1)). With regard to non—household sources
of solid w.st., if such waste is not a listed or characteristic
hazardous waste accumulated in quantities exceeding the small
quantity generator limitations (i • e., less than 100 kg/month of
hazardous wastes and less than 1 kg/month for acute hazardous
wastes), such waste is not required to be managed in a RCRA
Subtitle C hazardous waste treatment, storage, or disposal
facility (See 40 CYR Section 261.5). “Rø’ sehold hazardous
wastes” refers to those wastes which are generated by households
and would be managed as hazardous wastes under RCRA Subtitle C if
they were generated by a non-household in quantities exceeding
the small quantity generator limitations.
‘ Th. definition of sewage sludge is contained in the
National Pollutant Discharge Elimh3ation System Sewage Sludge
Permit Regulations published in the Federal Register as a final
rule May 2, 1989 (See 40 CFR Part 122.2).
5

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OSWER DIRECTIVE #9834.13
similar to the 143W that is derived from households.
This term covers only those wastes that are essentially
the same as what one would expect to find in co on
household trash. This term does not include hazardous
substances that are derived from a commercial,
institutional, or industrial process or activity.
a The term “low—hazardous industrial wastes” refers to
high volume wastes that contain small quantities of
hazardous substances derived from an industrial,
r gii ercial, or institutional process or activity.
Examples may includ, certain paint sludges or
industrial wastevaters.
II • LThBILITT
Important questions have been raised about whether
municipalities may be PRP and whether municipal wastes (i.e.,
143W and sewage sludge) may be considered hazardous substances
under CERCU.
A) Municinalities as PR.Ps
The statute does net provide an exemption from liability for
municipalities. Municipalities may be PRPs like private parties
if municipalities fall within the categories of liability
specified under Section 107 (a) of CERCL&. In general, Section
107(a) establishes liability for past and present owners or
operators of facilities as well as generators or transporters of
hazardous substances for the release or threatened release of
6

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OSWER DIRECTIVE #9834.13
hazardous substances. Such parties may be liable for the costs
of responding to a releas. or threatened release of hazardous
substances as veil as for resulting damages to natural resources.
The specific categories of liable parties under Section 107 (a)
are:
1. the owner and operator of a vessel or a facility,
2. any person who at the time of disposal of any hazardous
substance owned or operated any facility at which such
hazardous substances were disposed of,
3 • any person who by contract, agreement, or otherwise
arranged for disposal or treatment, or arranged with a
transporter for transport for disposal or treatment, of
hazardous substances owned or possessed by such person,
by any other party or entity, at any facility or
incineration vessel owned or operated by another party
or entity and containing such hazardous substances,
(commonly referred to as “generators” 3 ), and
4. any person who accepts or accepted any hazardous
substances for transport to disposal or treatment
Persons who fall into this category are commonly referred
to as “generators,” although liability under this Section extends
beyond “true generators” of hazardous substances to include
persons who arranged for the disposal or treatment of hazardous
substances owned or possessed by such party or another party.
The term “generator” is used throughout this document to refer to
any party who is potentially liable under Section 107 (a) (3).
7

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OSWER DIRECTIVE #9834.13
facilities, incineration vessels, or sites selected by
such persan (commonly referred to as “transporters”).
Section 107 (a) describes liable parties as “persons” and the
definition of “person” under Section 101(21) includes municipal-
ities and political subdivisions of a State. Municipalities may,
therefore, be PRP as part of CL&’ s broad definition of who is
potentially liable.
B) Wunicinal Wastes as Potential CKRCL& Hazardous
Sinilazly, the statute does not provide an exemption from
liability for municipal wastes. Municipal wastes may be
considered hazardous substances if they are covered under the
definition of hazardous substances in Section 101(14) of CERCL&.
As indicated under the definitions of XSW and sewage sludge,
these municipal wastes are aenerallv characterized by large
volumes of non—hazardous substances and may contain small
quantities of household hazardous or ether wastes, although the
D c 1 A1 1 composition of the waste streama vary considerably at
+ {vidual sites. To the extent municipal wastes contain a
hazardous substance that is covered under Section 101(14) of
.CLA and there is a release or threatened release, such
municipal wastes may fall within the C CL& liability framework.
III. IRYORI!ATION G T DIG
The Regions should include all municipal and private party
owners/operators and generators/transporters in the information
8

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OSWER DIRECTIVE #9834.13
gathering process, including the generators/transporters of
municipal wastes. This means that municipal owners/operators as
well as municipal generators/transporters should generally
receive Section 104 (e) information request letters and should
otherwise be fully included in the information gathering process
like private parties. Information obtained through such letters
or through other means is important for determining (among other
thing.) whether it is appropriate to notify a party as a PRP,
including whether to notify a generator/transporter of XSW or
sewage sludge a. discussed below. 6
IV. j.ziC TION OF PO w.rIAL RESPOWSIBILIT!
A) Omers/Onsratora
The same approach will be used for both municipalities and
private parties when determining whether to notify them as
owners/operators. Specifically, such parties will generally be
notified where they were past owners or operators of facilities
at the time of disposal of hazardous substances, or they are
present owners or operators of facilities where hazardous
substances have been released or there is a threatened release.
6 The Regions may accept and consider credible site—
specific information from any party to supplement their own
inforw tion gathering efforts as appropriate.
9

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OSWER DIRECTIVE #9834.13
3) Generators / ‘l’rarienorters T
1. Municinal solid waste : Municipalities and private
parties will be treated the same when determining whether to
notify them as PRPS when they are generators/transporters of 3 5W.
specifically, such parties will not generally be notified unless:
o the Region obtains site—specific information that the
1 1 5W contains a hazardous substance ;5
o the Region has reason to beli.v. that the hazardous
substance is derived from a commercial, institutional,
or industrial process or activity.
This means that EPA will not generally notify municipalities or
private parties who are generators/transporters of MSW if only
household hazardous wastes ( W) are present, unless the truly
exceptional situation discussed below exists. The general policy
The categories of wastes discussed below, i.e., relating
to municipal solid waste, sewage sludge, trash from a commercial,
institutional, or industrial entity, and low—hazardous industrial
wastes, are defined in the “Introduction” to this interim policy
(See I.B.).
The term “site—specific” information refers to
information pertaining to a particular Superfund site. “Site—
specifics’ information does not generally include, for example,
“general studies” conducted by EPA or other parties which draw
general conclusions about whether 1 1 5W or sewage sludge typically
contain a certain percentage of hazardous substances, unless the
“general study” includes “site-specific information obtained
from the PRP or Superfund site in question. “General studies”
may nonetheless be used to supplement “site—specific”
information.
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OSWER DIRECTIVE #9834.13
of not notifying parties who are generators/transporters of HEW
extends to “HEW collection day programs” as well.’
This also means that such parties may be notified as PRP5 if
the XSW contains h4zardous substances from non—household sources.
Non—household sources include, hut are not limited to , small
quantity generator (SQG) wastes from commercial or industrial
processes or activities, or used oil or spent solvents from
privat. or municipally-owned maintenanc. shops.
Notwithstanding the above general policy, there may be
truly exceptional situations where EPA may consider notifying
generators/transporters of Msw which contains a hazardous
substance derived only from households • Such notification may be
appropriate where the total contribution of commercial,
institutional, and industrial hazardous waste by private parties
to the site is insignificant when compared to the 1 ( 5W. 10 In this
The term “HEW collection day programs” refers to programs
that have generally been sponsored by municipalities or community
organizations whereby residents voluntarily remove their HEW from
their household waste. The HEW is then typically disposed of in
a RCRA Subtitle C hazardous waste facility and the household
waste is typically disposed of in a RCRA Subtitle D solid waste
facility.
‘° The Regions should consider both the volume and the
toxicity of the commercial, institutional, and industrial
hazardous waste when determining whether it is insignificant when
compared to the 1(5W. In determining whether the volume is
insignificant, the Regions should consider the total volume of
such waste contributed by all private parties. In determining
whether the toxicity is insignificant, the Regions should
consider whether such waste is significantly more toxic than the
115W and whether such waste requires a disproportionately high
treatment and disposal cost or requires a different or more
costly remedial technique than that which otherwise would be
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OSWER DIRECTIVE #9834.13
situation, the Regions should seriously consider notifying the
generators/transporters of )ISW containing a hazardous substance
from households as PRPs and includ, them in the settlement
process where it would promote either settlement or response
action at the sits.
2 • Sevaae sludge : Wunicipalities and private parties will
be treated the same when determining whether to notify them as
PRPs when they are generators/transporters of sewage sludge.
Spcifically, such parties will not generally be notified unless:
o the Region obtains site—specific information that the
sewage sludge contains a hazardous substance; fl
o the Region has reason to believe that the hazardous
substance is derived from a c mmmicial, institutional,
or industrial process or activity.
3 • Trash from a mercial. institutional, or industrial
j : Parties who are generators/transporters of trash from a
commercial, institutional, or industrial entity will not
generally be notified as PRP. if such parties demonstrate to the
Region that:
o none of the hazardous substances contained in the trash
are derived from a commercial, institutional, or
industrial process or activity; 1fQ
technically adequate for the site.
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OSWER DIRECTIVE #9834.13
o the amount and toxicity of the hazardous substances
contained in the trash does not exceed that which one
would expect to find in camson household trash.
4’ Any other hazardous substance. ineludina low—hazardoug
industrial wastes : Municipalities or private parties who are
ge.rators/transporters of ‘any other hazardous substance’ will
generally be notified as PRPS if the Region obtains information
that the substance is hazardous or that it contains a hazardous
substance. This includes notification of private parties who are
the generators/transporters of low-hazardous industrial wastes.
‘Any other hazardous substance’ in this category refers to any
hazardous substance covered under Section 101 (14) of CL& other
than hazardous substances that may be contained in XSW, sewage
sludge, or trash from a commercial, institutional, or industrial
entity (as discussed under IV.B.1., IV.3.2., or 11.B.3. above).
The generators/transporters of hazardous substances that may be
contained as part of the waste streams discussed under IV • B • 3.,
IV.B.2., or IV.B.3. should be addressed as specified above.
V. E -zL D’ rrs
A) Settlement Process
Once the notification decision is made, the general goal and
overall process for reaching settlement at sites involving
municipalities or municipal wastes is the same as for other
sites. The general goal remains to negotiate with PRPs to reach
one settlement agreement that provides complete resolution of all
13

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OSWER DIRECTIVE #9834.13
pending CERCLAI claims, and is consistent with both applicable
statutory requirements and EPA’ a Interim CERCL Settlement
Policy. 11 This means that at sites where both municipal and
private PRP5 exist, EPA will attempt to include both types of
parties in one settlement agreement.
Although on. settlement agreement is the goal for each site,
separate settlement agreements may be used at any site to
facilitate settlement, where appropriate. This includes sites
involving municipalities or municipal wastes. Separate
settlements are not automatically available to municipalities and
are generally available to such parties under the same conditions
as for private parties. Examples of separate settlements are
Section 122 (g) de minimis settlements and cash-outs which may be
used when they are consistent with applicable statutory
requirements and existing EPA guidance.’ 2
B) Settlement Provisions That Way Be Particularly Suitable
for Certain Municipalities
As indicated, once parties are notified as PRPs, the overall
process and goals for reaching settlement at sites involving
municipalities or municipal wastes is the same as for other
Superfund sites. Nonetheless, there are some settlement
provisions (e.g., delayed payments, delayed payment schedules,
“ “Interim CERCLA Settlement Policy”, February 5, 1985,
50 FR 5034.
12 For example, see “Interim Guidance on Settlements with
De Minimis Waste Contributors,” June 30, 1987, 52 FR 24333.
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OSWER DIRECTIVE $9834.13
and in—kind contributions) that may be particularly suitable for
facilitating settlement with certain municipal PRP5 because they
take into account a municipality’s status as a governmental
entity.’ 3
Such settlement provisions ar. not routinely available to
municipalities. As a general rule, they may be considered where
a municipality has successfully demonstrated to EPA that they are
appropriate (e.g., where valid ability to pay or procedural
constraints that affect the t 4 t ng of payment exist). These
settlement provisions may be embodied in separate s.ttlam nts or
they may be folded into a larger settlement that includes private
parties. In addition, although these settlement provisions may
b pa rticularly suitable for municipalities, they may also be
available to private parties, such as certain small businesses,
where appropriate.
The following discusses how delayed payments, delayed
payment schedules, and in-kind contributions may be used:
1. Delayed mavment : If a municipality has demonstrated
difficulty providing a lump-sum payment upf rent for past costs or
in some circumstances a municipality’ s governmental
status may impose practical constraints• on its ability to carry
out its legal obligation as a PRP under CERCL . For emple, a
municipality may need to hold a special vote involving its
legislative body or its citizens to gain approval to issue a bond
or arrange other financing to cover cleanup costs at a Superfund
site where it is a PRP. These settlement provisions are designed
to take into account these types of unavoidable constraints that
may exist.
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OSW DIRECTIVE #9834.13
for cleanup needs, the settlement could be structured to allow
the municipality to pay at a specified future date. This would
allow the municipality time to raise the money needed to cover
its contribution. This may include an interest payment.
2. Delayed oavment schedule ( avmerIta over times : An
alternative to a delayed payment is to allow a delayed payment
schedule where the settlement is structured to allow the
municipality to pay over time based upon a predetermined schedule
of payments. Th. payment schedule would be ad uat.d in such a
way that the discounted present value of the payment would be
greater than or equal to the settlement. 1 ’
3 In—kind contributions : The settlement could be
structured to allow for an in-kind contribution, especially where
a municipality can provide only a portion of its share of costs
or is unable to provide a monetary payment. In—kind
contributions may be made in conjunction with or in lieu of cash.
Factors the .Regian. may us. in considering the appropriateness of
an in-kind contribution may include the overall financial health
of the municipality, the amount of the municipality’, share, the
‘ Delayed payment schedules may include “structured
settlements” which ar. settlements paid over time generally
through an annuity. EPA is currently developing guidance, titled
“Interim Guidance on the Use of Structured Settlements Under
CL&,” which will establish criteria for evaluating whether a
particular site is a good candidate for a structured settlement.
EPA expects to issue this interim guidance in the Spring of 1990.
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OSWER DIRECTIVE #9834.13
value of the in-kind contribution, and the effect of the in—kind
contribution on the overall effort to achiev• settlement.
One mechanism for allowing an in-kind contribution could be
a “carve-out’ order when, for example, the municipal PRP has
agreed to provide the operation and maintenance at the facility.
Other in-kind contributions could include the as. of trucks and
equipment to carry out cleanup activities th. installation of
fencs. and the provision of other security measures to control
public access to the site, or the use of the municipality’s
sewage treatment plant.
C) Contribution Protection
Nothing in this interim policy affects the rights of any
party in seeking contribution from another party, unless such
party has entered into a settlement with the United States or a
State and obtained contribution protection pursuant to Section
113(f) of CERCL .IS
VI • DXS TWR 1
This interim policy is intended solely for the guidance of
EPA personnel. It is not intended and can not be relied upon to
create any rights, substantive or procedural, enforceable by any
party in litigation with the United States. The Agency reserves
Under Section 113(f), where EPA determines that
settlement is in the best interests of the Federal government,
CIA provides contribution protection to the settling parties
for matters covered by the settlement. This may include a party
who has not been notified as a PRP by EPA but wishes to settle
its potential CERCIA liability.
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OSW DIPE IVE f9834.13
the right to act at variance with thu policy and to change it at
any ti m. without public notice.
VII • FOR YU IIIYORI(ATION
For further information or questions about this interim
policy, the R.giona may contact Kathleen MacKinnon in the Office
of Waste Programs Enforcement at ?TS—475—9812. Inquiries by
other praona should be directed to Ms • MacKinnon at
20Z—475—6771.
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June 2003
ESS Contracts POs and Os
Region Regional Contact Phone Number Fax Number
Region I Filomena (Meme) DiNardo, P0 617-918-1425 617-918-1291
(Zoned with Regbn 2)
Region II Richard Graciano, P0 212-637-3271 212-637-4360
Helen Eng. Alt. P0 . 212-637-4348 212-637-4360
Kevin Weaver, Co 212-637-3357 212-637-3518
Region Ill Joseph Traile, P0 215-814-3337 215-814-3015
Donna Kotsch. P0 215-814-5529 215-814-3015
(Community Involvement)
Donna McG an, Co 215-814-5197 215-814-5211
Region IV Jackie Dendy. P0 404-562-8876 404-562-8842
Deborah Hoover, CO 404-562-8373 404-562-8370?
Shayla Jenkins, CS 404-562-8385 404-562-8370?
Charles Swan 404-562-8848 404-562-8842
Region V Pankaj Parkh, P0 - 312-886-6707 312-886-0186?
Region VI Karen Harlis, P0 214-665-6652 214-665-6660
George Okstel, Co 214-665-8310 214-665-7284
Cheryl Hill, CS 214-665-2799 214-665-7284
Region VII Jolleen Werst, P0 913-551-7108 913-551-7063
Ron Stewart CO 913-551-7743 913-551-7579
Region VIII Carol Pokomy, P0 303-312-6970 303-312-6409
Lisa Walker, CO 303-312-6475 303-312-6685
Region IX Kathy MeI er, P0/Co 415-972-3714 415-947-3558
Region X (Does not have an ESS contract)
Headquarters Marlene Lemro, Natcnal Coordinator 202-564-4257 202-564-0089
Joe Waddell, OAM Serve Center 202-564-4458 202-564-2558
Joan Thurman, OAM ESS Team Leader 202-564-4497 202-564-2557

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Statement of Work for the
Multi-Site Open Work Assignment
for Enforcement Support
Background
This Multi-Site Open Work Assignment (MOWA) Is designed to provide EPA Region IX with expedited
enforcement support to conduct Potentially Responsible Party Searches and related tasks to support
Superfund enforcement actions. Through narrowly defined/directed tasks, this work assignment will
provide EPA with a means to obtain timely, expedited support in acquiring and managing information
concerning a Site. This Information will be used In EPA enforcement actions such as negotiations,
Administrative Orders and/or referrals to the Department of Justice. It is anticipated that the
combined expenditure for tasks performed for any single Site under this work assignment shall
normally not exceed $20,000.
In order to address the unique nature of this expedited work assignment, a phased approach
towards implementation will be used. The contractor shall acknowledge receipt of this MOWA
statement of work within 10 work days, as currently provided in the ESS contract. The contractor
will then prepare a general work plan describing the methods and procedures to be employed to
accomplish each of the specIfic tasks described in this MOWA statement of work. The contractor’s
work plan shall be submitted within 20 calendar days after acknowledgment of this work
assignment. The EPA Project Officer (P0) shall be the approving official for this MOWA.
Another unique feature of this work assignment Is negotiated pricing at the general work plan stage.
The contractor shall use Attachment A to provide cost and level of effort estimates for each and
every task in this work assignment. Estimated LOE for each task will be based on a per unitu basis
using the requirements and parameters described with each task. Unit pricing will be based on
estimated expenditures of time by P-levet, reproduction costs and administrative costs (computer
time, overhead, etc ... ) but will not Include related travel expenses, which are Site specific. (During
actual performance, departures from this unIt pricing will be addressed and justified in the Site
Implementation Memorandum as discussed below.) Subsequent initiation of work under this work
assignment will be controlled through the use of Technical Direction, Memoranda, prepared by EPA
and approved by the P0, and Site Implementation Memoranda and Monthly Status Reports,
prepared by the contractor and approved by the EPA WAM.
Technical Direction Memorandum:
After approval of the general work plan, the EPA Work Assignment Manager (EPA-WAM) shall Initiate
site-specific tasking through the use of a Technical Direction Memorandum (TDM) to the contractor.
This memorandum must be approved by the P0, and will direct the contractor to perform specifically
enumerated tasks for a designated Site and describe the type of deliverables required (e.g. Letter
Report; Documents; certified copies.) The memorandum will further provide the contractor with a
Site Account Number to be used to charge work performed for the Site and a target date for
completion of the work requested.
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Site Implementation Memorandum:
Upon receipt of a TDM, the contractor may begin work immediately. Within 10 working days, the
contractor shall provide the EPA WAM with the following information in a Site ImDlementation
Memorandum (SIM):
1) Enumeration of the tasks to be performed with the estimated LOE (by P-level) and dollars
anticipated for each specific task.
.2) DelIneation of the personnel and P-level of employees who will perform the tasks assigned.
3) EstImate of travel expenses (Including P-level of traveler) to complete the tasks identified.
4) )ustlficatlon of any tasks which are anticipated to exceed the “per unit” price used In the MOWA
work plan.
The contractor shall not exceed $2,000.00 in expenses, Including ODCs, per Site, prior to approval of
the SIM estimates by the EPA P0, which approval shall be documented with an acceptance TDM
signed by the P0. Expenses exceeding $2,000.00 will not be allowed and should not be incurred by
the contractor until and unless such approval is received by the contractor. SIM approval shall
normally occur wIthin 5 working days of receipt of the SIM
Monthly Status Reports:
The contractor shall submit a Monthly Status Report to the EPA WAM, containing Information through
the 15th of each month and to be submitted by the 20th of each month. The report shall describe by -
Site the status of work being performed as well as the LOE In hours and dollar expenditures to date.
In addition, the contractor shall also Include a concise summary of costs Incurred and LOE hours
expended, accrued through the date of the report, attributed by Site, for the entire MOWA work
assignment. This summary is for the purpose of tracking hours of LOE and dollars expended for the
MOWA work assignment as a whole and Is primarily for the benefit of the P0. More detail on the
format and content of this report is contained In the section entitled SCHEDULE OF DELIVERABLES.
Scope of Work
The purpose of this work assignment is to provide narrowly directed support to EPA for enforcement
related activities. The contractor’s staff assigned under this work assignment shall be trained,
qualified and appropriate to the specific task(s) directed. They shall also have knowledge of the
general liability scheme under CERCLA, and be familiar with the following pertinent Department of
.Justice reviews, EPA guidance documents, and search manuals:
1. Potentially ResDonsibie Party (PRP) Search Manual. OSWER Directive 9834.6, August 1987;
2. PRP Search SuDolemental Guidance for Sites in the Suoerfund Remedial Proaram , OSWER
Directive 9834.3-2a, June 29, 1989; and
3. Guidance on Preoarina and Releasing Waste-in Lists and Volumetric Rankings to PRPS Under
CERCLA.. OSWER Directive 9835.16, February 22, 1991.
4. Elements of Uablllty Under Sections 104, 106, and 107 of CERCLA, U.S. Department of
Justice, (current edition).
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In most instances, the contractor will not be tasked to provide a comprehensive written report as
envisioned in the PRP Search Supplemental Guidance (OSWER Directive 9834.3.2a) and the EPA PRP
Search Manual. Specific deliverables will be identified In the Site specific TDM. A Comoleted Activity-
Summary Memorandum shall generally be submitted at the completion of all tasks for each Site, as
directed by the EPA WAM. This memorandum will briefly describe all activities performed to
accomplish the directed tasks and a compilation of costs incurred.
Tasks Allowable Under this Work Assignment
The following tasks are included and authorized under this work assignment and may be assigned
for a specific Site by the EPA WAM.
1] Title Searches - The EPA WAM will provide the contractor with a Site address (s) , a location map
and, where available, specific parcel number(s). As specifically directed by the EPA WAM, the
contractor will perform some or all of the following related tasks.
a) Obtain specifically identified title documents (and/or parcel maps).
b) Perform title searches, obtaining all documents for a specified period which evidence
both current and possible past owners, lessors and lessees for a designated Site
address(s).
c) Analyze title documents in order to provide a clear opinion as to the true ownership,
quality, condition, and clarity of title for a designated period of time. This may include
preparation of title tree diagrams and accompanying narrative reports.
Deliverables for this task shall Include the following: copies of requested documents
(certified or plain as specified in the TDM); a memorandum presenting title analysis
conclusions (including related tables, charts or other aides as directed by the EPA
WAM).
2] IntervIews - The EPA WAM may direct the contractor to interview designated government/public
officials and/or Individuals connected with a Site’s history to obtain information regarding a Site.
Unless otherwise specified in the TDM, the contractor will prepare an appropriate outline focusing on
proposed questions and methodology for the EPA WAM’s approval prior to conducting the interview.
Interviews may be conducted via telephone at the EPA WAM’s written technical direction.
Deliverable shall be a summary of the results of the interview which identifies at a minimum the
date, time, place of interview, person(s) interviewed (including name, address, telephone number at
work and home, occupation, and relation to the Site), interviewer, and a comprehensive summary of
the Information obtained during the Interview.
3] Document Coilection - At the written technical direction of the EPA WAM, the contractor shall
obtain documents from designated public agencies, private parties, or other sources. EPA WAM will
provide a list of the specific agencies or other sources to be contacted, as well as the types of
documents to be coiiected.
Deliverable shall be the submission of a single copy (unless multiple copies are specifically
requested by the WAM in the TDM) of the documents requested, with appropriate document
identification as required In the 1DM.
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4] Document Indexing - At the written technical direction of the EPA WAM, the contractor shall be
tasked to Index a collection of documents obtained In connection with a Site. This indexing shall be
performed In a manner and format consistent and compatible with the Superfund Records Center
Indexing format, but may, at the EPA WAM Is written technical direction, include additional entry
fields for issue coding of documents.
Deliverable shall be the submission of a single hard copy of the document index plus one electronic
version on 3.5 inch disc in a format compatible with Word Perfect 5.1, or such other software as
may be specified through written technical direction by the EPA WAM. Alternatively, with the EPA
WAM’s approval, the contractor may transmit the document index directly to the Superfund Records
Center via modem.
5] Data Entry - At the written technical direction of the EPA WAM, the contractor shall enter data into
a CERCLA § 104(e) Information Letter Tracking System (to be provided by EPA) which will track
mailing, receipt and return response to EPA Information Requests. At the written technical direction
of the EPA WAM, the contractor may also be tasked to provide an analysis of the 104 (e) response
to determine It I s completeness and/or to extract information.
Deliverable shall include updated 104 (e) tracking information, and/or a memorandum summary of
data extraction for each respondent providing one or more of the following:
— Evidence of a release of hazardous substance.
— Purpose and/or use of facility.
— Evidence of a release of hazardous substances.
— Presence of physical features which significantly impact release or potential for release.
— Identification of chemicals used.
— Identification of waste streams and disposal methods.
— Corporate formalities and relationships of the subject.
— Apparent financial viability of subject.
6] Waste Stream Analysis - At the written technical direction of the EPA WAM, the contractor shall
perform a chemical process analysis or a waste process analysis for a subject business activity,
using information provided by EPA, by the subject business, or available from public sources, as
specified in the TDM. If the contractor determines that the information supplied Is Insufficient to
provide a reliable analysis, the contractor shall provide written recommendations specifying the
kind of information and potential or probable sources for obtaining such additional information as Is
necessary to complete this task.
Deliverable shall be the submission of a technical memorandum detailing to the extent possible the
probable waste stream and disposition of wastes for subject business and business activities.
7] Business Status - At the written technical direction of the EPA WAM, the contractor shall develop
and/or resolve issues relating to the business structure, familialN relationship(s), and ownership and
control of business entities. This shall be accomplished through the use of public information
sources, on-line data retrieval services, and by obtaining and analyzing documents, including
responses to Information Request Letters, as directed by the EPA WAM through written technical
direction memoranda.
Deliverable shall be a written submission summarizing the requested information, together with
documentation to support conclusions drawn, either in a technical memorandum or Incorporated
within a larger deliverable.
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8] Financial Viability - At the written technical direction of the EPA WAM, the contractor shall provide
a financial viabilIty analysis using EPA supplied information and/or publicly available information in
order that EPA may make a determination regarding an entity’s ability to satisfy Superfund liabilities.
Deliverable shall be the submission of a technical memorandum outlining the financial condition of
the subject. At a minimum, the technical memorandum shall Include either or both of the following:
a high and low lump sum, figure based upon the entity’s financial condition with a justification of the
figures; and an analysis of the entity’s ability to make installment payments over time. The
deliverable shall be more fully described in the TDM authorizing performance of this task.
9] Current Status - At the written technical direction of the EPA WAM, the contractor may be tasked
to verify and/or provide current names, responsible official and address Information for subject
entity(s). This task will normally be accomplished through use of on-line data retrieval sources, but
may also require retrieval of publicly available documents, as directed, by the EPA WAM through
written technical direction.
The deliverable will be an updated list providing current Information, accompanied by printouts of
the database- supplied information and/or requested documents.
10] Expert Opinion - At the written technical direction of the EPA WAM, the contractor may perform
specialized tasks such as providing current real property appraisals, providing cadastral and/or
spotted surveys of property to determine the location of physical features or structures In relation to
property bounds, etc. , or providing expert opinions from technical experts, relating to any other
task or tasks described in this MOWA work assignment.
The deliverable shall be a technical report resolving specific technical issues as assigned In a TDM,
with whatever attachments or graphical presentations are authorized by the 1DM.
11] SummatIon & Reporting - At the written technical direction of the EPA WAM, the contractor shall
review all available information In order to develop a summary report which shall provide a
chronological presentation of known facts (properly referenced to supporting documentation)
regarding a Site. The contractor may also be required through written technical direction by the EPA
WAM to prepare a separate memorandum detailing the evidence relating to the liability of each
Identified entity connected with a Site, containing the following general elements (unless otherwise
directed):
- Overall Facility Summary
- Corporate Status / Business Information Financial Viability
- Property Ownership
- Detail of Operations Conducted Evidence of Release
- Relation to other PRPS.
The deliverable shall be a report and/or memorandum as identified above. Memoranda presenting
evidence of liability will be marked as Enforcement Confidential - Prepared In Anticipation of
Utlgation. 11 SInce this report or memorandum does not Include an analysis or appraisal of the
strength or quality of the evidence, nor an analysis of liability, this deliverable will not ordinarily be
classified as legal analysIs. Chronological reports only shall j g ..be marked Enforcement Confidential.
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Schedule of Deliverables
A general Work Plan shall be prepared, as required under the ESS Contract, in response to this
Statement of Work and submitted to EPA for approval within 20 calendar days after acknowledgment
of receipt of this Statement of Work. Upon approval, performance of any tasks under thIs work
assignment will be on an as-assigned basis through the use of Technical Direction Memorandum
Issued by the EPA P0 and the EPA WAM, using the following general schedule.
Site Specific Tasking
EPA WAM will Initiate a Technical Direction Memorandum to the Contractor providing general
background Information concerning the Site, a Site account number to be used, the specific tasks to
be performed, the desired time frame for completion and a summary listing of known or suspected
PRPS who may be Involved with the Site. This TDM must be signed by an P0, and is not valid
without such signature.
Within 48 hours (not including weekends and holidays) , the contractor will advise the EPA CO/PO
verbally of any apparent or potential conflicts of interest that may arise concerning this Site.
Thereafter, should additional information disclose an apparent conflict, the contractor shall appraise
the EPA C0I P0 within one working day.
Within five (5) work days of receipt of a TDM, the contractor shall submit a Site Implementation
Memorandum detailing personnel assigned as well as anticipated schedule and projected costs to
complete the tasks assigned. The EPA P0 wIll approve this estimate with a TDM authorizing work to
be performed or will notify the contractor In writing of any objections or disapproval. Any changes to
the initial TDM shall be effected through sequential amendments to the TDM.
When all tasks for a specific Site have been completed, the EPA WAM shall, at the WAM’s discretion,
notify the Contractor WAM in writing to prepare a Completed Activity - Summary Memorandum
which will summarize all tasks completed for the Site and Include a re-cap of all expenses Incurred
for the Site. This Completed Activity - Summary Memorandum shall be. completed by the Contractor
within ten (10) working days after notification of completion by the EPA WAM.
Monthly Reports
The contractor shall submit a monthly report to EPA detailing the following Information for
each Site for which activities have been performed or costs Incurred:
For each Site:
- Activities conducted during the month. Costs incurred, by task, per month.
- LOE hours expended, by task and P level, for the month.
- Total monthly costs and LOE hours expended. Total Work Assignment Costs to date.
- Projected future costs to completion.
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The Information contained In the report shall be current through the 15th of each month, and the
report shall be transmitted to the EPA P0 by the 20th of each month.
The contractor is also expected to maintain frequent, verbal communication with the EPA WAM on
progress, problems, issues or suggestions relative to individual Site tasking or the overall Work
Assignment.
Period of Performance
The period of performance for this work assignment is through December 1, 1995.
Work Assignment Manager
The primary EPA Work Assignment Manager for this work assignment Is Cliff Davis, who can be
reached at (415) 744-2377. The alternate EPA WAMs for this work assignment are Mark Caihoon,
Steve Simanonok and Nancy Riveland-Har, Lois Green, and Kim Muratore. Other WAMS may be
added as needed. Any WAM may initiate TDMs, however only POs may sign and authorize TDMs.
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ESTIMATED PER UNIT PRICING
Task LOE Hours Contract Dollar
P4 P3 P2 P1 MGMT.*
1] Title Search (Per Parcel)
a) Document
b) All Docs.
c) Analysis
2] Interviews (Per Interview)
a) Gov’t. Agency
b) Individual
3] Document Collection (500 pgs./ 2 or fewer sources)
4] Document Indexing (500 pgs.)
5] Data Entry (10 letters)
a) Tracking only
b) Extraction
6] Waste Stream Analysis (1 analysIs)
7] Business Status (1 entIty)
8] Financial ViabIlity (1 analysis)
9] Current Status (1 entity)
10] Expert OpinIon (1)
11] Summation & Reporting
a) Chron. Report
b) Enf. Memo
Monthly Contract Maintenance
* CONTRACT MANAGEMENT is primarIly quality assurance/quality control (QA/QC) activitIes,
together with administrative activities such as time chargIng, logging In - assignments, and routing
documents.
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CHECKLIST FOR
REMOVALIPRE-REMEDIAL SITES
Completion of this form is not mandatory, nor is ft directed solely towards a specific type of
responder. The first on-site responder may begin the checklist which may Include contributions
from any of the following: EPA site assessment manager (SAM), on-scene coordInator (OSC), civil
Investigator (Cl), remedial project manager (RPM), EPA contractor, state staff, or state contractor.
This form should be filled out for future use by EPA or state staff in preservation of evidence
related to the IdentificatIon of potentially responsible parties. This form may be filled out at any
point during the site discovery, assessmentlinvestlgatlon, or response phase.
It may not be possIble to provide information for each of the Items on this form but, providing
Information on as many of the Items as possible will Improve the overall efficiency of the site
remediatlon and enforcement processes. When you have completed it to the extent feasible,
please distrIbute copies of this form to the appropriate EPA and state personnel (e.g., civil
investigators, EPA or state attorney, OSC, RPM, etc.), and place the original In the site file.
1. Potential Site referred:
Region: _____ Site Namo:
Location:_____
2. Referred by:
DeparbnentlAgency
Contact Name
Phone #
..
OSthto
...._.. a....
i n
0 National Response Center
0 Other:
3. BasIc site information was requested to be submitted to the regional office from the above referral
contact:
0 Yes 0 No
4. identification of person completing this checklist
Organization:____________________ Name:___________________________________
Title:________________________________ Phone #:_________________________
Mailing Address:
5. The OSC (or other First Responder) determines the urgency of the situation at the site, assessing
the factual information referred against the criteria set forth in the National Contingency Plan.
6. SIte Team formed, OSC, Attorney, Enforcement Specialist, Civil Investigator, Site Assessment
Manager, Remedial Project Manager, EPA contractor, State staff, etc.

-------
7. Site Team reviews information to ascertain responsible corporate officers, registered agents, and
principal environmental antVor health and safety contacts. Some examples of Information to be
reviewed and their source is:
O U.S. EPA media flies (NPDES permits, RCRA information, EPCRA releases, CAA
permits)
U State media flies
O Local health deparbuent flies
U Historical society lnformatianlhlstorical photos
O Newspaper archives
O Local university archives
O Sanbarn fire Insurance maps
O Other__________________________________
8. ObtaIn access agreement(s) with last known owner(s) of site property:
DYes ONo Date obtained:______________________
9. IdentificatIon of the property to be visited:
O Copyofdeed
O Address:____________________________________
O Plat#: _______________________________________
0 Cross Street Location:_____________________________
10. Identification of possible contacts that may be a sowce of information in the future, Including
complete ,wmes, titles, addresses, and telephone numbers. include all people you encounter on the
site, and anyone voiunte.rlng Information about the site: tOwnorsloperators, prior
ownersloperators, generators, transporters, local authorities, state and other federal agencies, local
libraries, other]
Contact Name
Address
Phone No.
—..—....—...— —....—————...— ——— — —..——.. ———.. —..—....
—....———....— ——————...t....—....—.. .... — — —..—....— — —..———..
-2-

-------
11. Interviews were conducted with the following contacts:
Interviewee
Association With
Site and Number of
Years
Date Interview
Conducted
Interviewer
Transcript
Available
YesINo
12. Information about records located onsite:
Typo of Records *
tiosi of Records
Condition of
Name of Person In
— ——. —....
1ypes of records, to Include but not limited to: log books, driver’s tickets, utility bills, payroll records,
letterheads, or other specific correspondence c i records.
PIease Identify If: contaminated, damaged, poor quality, good quality, other
-3-

-------
13. Are there file cabinets on site?
DYes ONo
Photographs s m taken at _____
15. WeredrumsfeundattheSlte? DYes
DNa
Number of Drtans
Number With Labels:
16. Wassampllngdone? DYes G INo
17. NeIghbors near the site:
!
Name
Association With Site
and Number of Years
Address
Phone
No.
Interviewed and
Date YeelNo
14. Were photographs taken? (Note: photographs should confom , to accepted photographic record
protocoL Refer to TAT, site assessment and criminal Investigators for EPA photographic protocoq
-4-

-------
18. AdditIonal potential sources for gathering site information:
Neighboring Businesses
I ] County Recorder:
O Deed information
0 Past Tax information
0 Sidweil Maps
O Financial Information
U Financial institutions
0 Accountant Information
U Commerce Clearing House (CCH) Publications (Capital
Transactions)
O PRP information on EPA Databases
O CERCUS
0 IDEA
0 FINDS
0 ERNS
O Electronic Database Review
O ChoIce Point
U Dun & Bradebeet
O LexlslNexls (or Westlaw)
O Corporate Information
O Prior lawsuits, bankruptcy filings, SEC filings
o internet sources
19. OSC plans for:
0 Removal action
O Removal scoping
O Public participation
O Establish administrative record
20. Based on information gathered to date, appropriate enforcement activities should be taken:
O issue Information request
O State an opportunity, In the Information request for the PRP5 to provide
information on additional PRPS
O initIate title search
O RevIew relevant site records
O initiate PRP search report
O Orallwrltten general notice letters issued to known PRPs
21. OSC prepares Action Memorandum
O Develop negotiation strategy
O Prepare draft administrative order on consent (AOC)
O Negotiate AOC or issue unilateral administrative order (UAO)
(Note: when Issuing UAOS, the enforcement team should follow guidance on Adminl b tive Reforms
- the UAO should be issued equitably to the largest manageable number of panes and the team
should document the reasons why the UAO Is not issued to all PRPs if appropriate)
-5-

-------
22. SIte cleanup:
U PRP-lead
U Fund-lead
23. Cost recovery phase:
Complete enforcement investigations:
C) Followup on earlier PRP search
I ] Update titi. search If necessary
Cost recovery activities:
U Itemized cost summary
C l Send demand letters
Cl Cost recovery referrat
C) Close-out memorandum (where appropriate, if case is not referred to DOJ)
C] Cost documentation package
Cl Work performed documents
Please use the following space to provide additional noteworthy information regarding
this checklist and the site:
PLEASE AT1ACH ALL RELEVANT INFORMATION THAT HAS BEEN REFERENCED IN
THIS CHECKLIST AND DISTRIBUTE TO THE APPROPRIATE REGIONAL CML
INVESTIGATOR, SITE FILE, AND OTHER EPA OR STATE PERSONNEL AS
APPROPRIATE.
-6-

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E

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
MAR31. 1993
MEMORANDUM
SUBJECT: Revised Policy on Discretionary Information Release
Under CERCLA (OSWER Directive 01 a)
FROM: Bruce X. Diamond, Direct
Office of Waste Programs Enforcement
William A. White, Enforcement Counsel for Superfund
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 Superfiind
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 703603-893 5) or Patricia Sims in
the office of Enforcement (LE-134SIFTS 202-260-2860).
Attachment

-------
Superflind Branch Chiefs, Regions I - X
Regional Counsel Branch Chiefs, Regions 1 - X
PRP Search Chiefs, Regions I -
Revised Policy on Discretionary
Information Release Under CERCLA
OSWER Directive 9835.12-Ola
OSWER Directive 9835. 12-Ola revises Releasing Information to
Potentially Responsible Parties at CERCIA 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 fivor 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 entitled to confidential
treatment is made pursuant to section 104(e)(7) of CERCLA and 40
CFR Part 2. 11
un addition, under Agency policy, documents falling within
Exemptions 7 (C) (privacy information) and 7(D) (confidential
informants) of FOLA are subject—to mandatoiy withholding. Sometimes,
however, information falling within these exemptions will be contained in
otherwise releasable records, and this information must be redacted prior
to release.
The Agency also should make reasonable efforts to assist de
minimis parties and parties unfhmiliar with Superflind in the coalescence
process by providing them with additional Superflind program information.
De minimis parties can be small businesses or others with little
or no previous Superfiind 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.

-------
F

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Quick Reference Guide
Party Information
This Quick Reference Guide will provide information on how to access, view, and enter information into the Party
information screens in the Enforcement module of WasteLAN. The Party information screen contains relevant data
pertaining to a Party at a site. There are eight tabs in the Party Information section which contain general party
information, the sites at which each party Li involved, their involvement, contacts, and other pertinent information.
User Access Roles for Party Information Screen
Read Only: Headquarters Manager, Read Only, Community Involvement Coordinator, Headquarters Stafi Headquarters
Budget/SCAP Coordinator.
Delete/Edit Rights: Regional Manager, Site Manager, Administrative Support/Data Entiy, Superuser/All, Remedial Project
Manager, Regional Attorney, Site Assessment Manager, On-Scene Coordinator, Civil Investigator, Cost Recovery Specialist/
Data Entry, Office of Regional Council (ORC) Data Entry Staff IMC/JMC Staff/Budget Coordinator, Regional Manager
Reviewer, Cost Recovery Coordinator, Brownfields Coordinator.
Accessing and Viewing the Party Infonnation Screens
1. To access the Party Information screens from the iews menu, select enforcement, Earty Searchflnformation, and then
farty Search. The Party Search! Information screen is displayed.
You can also access the Party Information screen by highlighting (click once) a party in either the ‘Parties in Search
Results’ or ‘Parties Associated With Current Site’ boxes on the Party Search screen and clicking the Info button, or by
clicking the Add Party button on any Parties tab within the Enforcement module.
NOTE: For more information on searching for a party on the Party Search/Information screen, please see the Party
SearcWlnformation Screen Quick Reference Guide.
Party Information Tabs
The Party Information screens contain data pertaining to a party at a site, including the party name, address, the sites at which
they’re involved, their involvement, and contacts. There are eight tabs in the Party Information section: Summary, Party
Details Associated Sites, Involvement, Substance, Enforcement History, Contacts and Comments.
Last Required Update: March 2003 (Version 3.13)

-------
Quick Reference Guide
Party Information
Summary Tab
The Summary tab gives you an overview of
the Party Information section. The Party
Information screen defaults to the Summary
tab when accessed by clicking on the I ifo
button on the Party Searchl lnformation
screen. These fields are uneditable.
Information on the Swwnary tab includes
Party Name, Address, Party Type and Sites
and Actions associated with the party. To
enter information, double-click on the field
and you will be brought to the tab that
contains the data entry screen for that field.
For example, if you click on the Party Name
field, you will be brought to the Party DeIaiLc
tab.
Some fields look like a dropdown list. These
are all the fields where it is possible to select
multiple values on the data entry screen. On this screen, the dropdowns display all sites with which the party is associated,
the contacts related to the party, the Actions associated with the party, and the party type.
Youwffl always bavetoreturntotheSumma ytabtosavetheinformationyouenteredoneachoftheothertabs.
Party Details Tab
The Party Details tab is where you will add the basic information about the party. The Party SearcWlnformatlon screen
defaults to the Party Details tab when accessed by clicking the Add Party button on the Party Searchf lnformation screen.
All fields on this tab are editable unless the party has been sent a General or Special Notice letter or is associated with an
Enforcement action.
1. To access the Party Details, click on the Party Details tab or double-click on the Name, Facility Name, Address, City,
ST, Zip, Country, Bradstreet #, or Type fields on the Summary tab.
2. Type in information in the appropriate field for the Party Name, Alias, Address, City, State, Zip Code, Phone Number,
Fax Number, Facility Name, Internet Address, Country, Date and State in which the party was incorporated, if
appropriate, and Dunn & Bradstreet number. The system only requires that you enter the Party Name. A 1999 OSRE
memo, however, requires additional information be entered for the party, for example the Party Address. Entering the
address will increase the usability of the data; help reduce the number of duplicate parties in the system; eliminate data
quality issues; and allow you to create and print mailing labels. If a user selects a cotuthy from the Country dropdown
box and picks something other than “United States”, the “Phone”, “Fax”, and “Zip Code” will be replaced with “Int’l
Phone”, “Int’l Fax”, and “Postal Code.” The “State” field will be deactivated and the new International fields will lack
the formatting of the US codes.
Last Required Update: Mardi 2003 (Version 3.13)
2

-------
Ouick Reference Guide
Party Information
3. Identify the party type using the drag and drop box. Multiple values are allowed.
Fields to set p ty
Usethesefiddsto /
indicate the pafl)’ type
Use this
thopdown box
to idsetify the
countiyforthe
pallyyouare
itenng If the
Country field is
blaik, or is
— with
“United States”,
the Phone, Fax,
and7ip Code
fields will
pear.
Wl the Cowitiy is
sele ed and atto
— othor than
Blank or “United
State.”, the P e,
Fax, uid Zip Code
fields e r ed by
“Intl Phone”, “Intl
Fax”, and Po.ts1
Code.” The “State”
field will be
OK.
Last Required Update: Mardi 2003 (Version 3.13)

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Ouick Reference Guide
Party Information
Associated Sites Tab
The Associated Sites tab displays the sites at which the PRP is involved. This tab is used to associate a party to a number of
sites or a site other than your “global” site without going back to the Site List. If you are associating patties with the
“global” site, you don’t need to go to this tab. Just go back to the Summary tab to save your data and associate the party to
the site.
1. To access the Associated Sites tab, double-click on the Sites field on the Summary tab, or click on the Associated Sites
tab.
2. Toseeifasitehas alreadybeenassociatedwiththeparty,cickintheFindfieldatthetopofthe ‘SitesParty isAiready
Associated With’ box. The closest alphabetical match will be displayed.
3. To search for a site with which you wish to associate the party, click in the Find field at the top of the ‘All Sites in
Current Region’ field. The closest alphabetical match will be displayed.
4. To associate the party, highlight (click once) the desired site in the ‘Associate Party with Additional Sites’ field and click
the Associate button. The Involvement tab is displayed.
isaiready -
oth
Otl rsitesin11 —’
Region
Fn
fielda
Associate
sociatetl
partywithfr
site y i sdo e
Last Repiired Update: March 2003 (Version 3.13)
4

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Party Information
The Involvement Tab
The Involvement tab allows the user to enter information on how the party is involved with the site.
1. To access the involvement Tab, double-click on the Sites dropdown list on the Summary tab, click the Associate button
on the Associated Sites tab, or click on the Involvement tab.
2. You are required to choose at least one Involvement Type. To select the Involvement Type, click in the appropriate box.
A check mark will be displayed. If you choose “Other Involvement Type,” the system requires you to select an “Other
Involvement Type” from the drag and drop box on the right To do this, highlight (click once) the desired “Other
Involvement Type” on the left side of the screen and click the right arrow button or drag and drop the value into the
Selected Types box. If you try to save your changes without indicating an “Other Involvement Type,” a message will
appear reminding you to select this field.
check one of
the Other Involvement
involvement Type drag and
Types drop field
Type the
beginning j Financial
_ V th
involvement drag and
dates in these drop box
fields
Basis of
Select an
identification chop box
501ff Ce from
the diupdown
list
3. Below the Involvement Types are three check boxes: Non-Settlor, Noticed/Enforcement Action and Not PRP
Determination Made. The Noticed! Enforcement Action box indicates that the party has been sent a general or special
notice letter or has been associated with an enforcement instrument or litigation action. If you associate the party with a
General or Special Notice Letter, Litigation action, or Enforcement Instrument, WasteLAN will automatically check the
Noticed/Enforcement Action box.
NOTE: Users cannot uncheck the Noticed/EnfAction box after it has been system generated or has been saved. Parties
where the Noticed/EnfAction box has been checked are snapshot to the national database and the other regions.
Last Required Update: March 2003 (Version 3.13)
5

-------
Ouick Reference Guide
Party information
4. The Not PRP Determination Made checkbox indicates that determination has been made that the party is not a PRP.
Similnr to the Noticed/EnI Action checkbox, the Not PRP Determination Made checkbox can be manually entered or
system generated. WasteLAN will automatically check in the Not PRP Determination Made box if you check “Other”as
the only Involvement and select “Prospective Purchase?’ as the only Other Involvement Type. if the checkbox is system
generated, a message will pop up alerting you that the box has been checked. You can uncheck the Not PRP
Determination Made box at anytime.
NOTE: Once a party has’ been snapshot it will always be available in the National database even jfyou later decide a
party should not have received a notice letter or you make a determination that a party Lc not a PRP and check the Not
PRP Determination Made checkbox.
5. The Involvement tab also contains data fields to indicate the Basis of Liability and the Financial Viability of the party.
These fields are drag and drop fields so that several selections may be made. To select a value in any of these drag and
drop boxes, highlight the desired item in the ‘Financial Viability’ box or the ‘Basis of Liability’ box and click the right
arrowbutton ordrag and drop itfrom the left box tothe rightbox.
The Substance Tab
The Substance tab allows you to associate the party with the wastes at a site.
I. To access the Substance tab click on the Substance tab.
2. To add a substance, click the Add button. You can enter a waste by selecting a Waste ID or Waste Name from the
dropdown lists, or typing the substance name in the Substance Name field. If you select a Waste ID the system will
display the Waste Name and vice versa.
Select a
Was*eID or
Waste Name
fromthe
appiopnate
thopdown list
click this
dtonto
, adda
Last Required Update: March 2003 (Version 3.13)
6

-------
Ouick Reference Guide
Party Information
U sing the Enforcement History Tab
The purpose of the Enforcement History tab is to enter confidential information on your enforcement experiences with a
party.
1. To access the Enf History tab click on this tab.
2. The information on the top of the tab is automatically filled based on your User information. The arrow keys on the
bottom right of the screen allow you to scroll through multiple entries. The History Records field shows how many
entries there are for the party. The enforcement history is shared with all regions.
3. To enter comments on your experiences with the party, click in the Confidential Enforcement History field and begin
typing.
4. To add a new record, click the Add button and enter the appropriate information. To delete an existing record, click the
Delete button.
WasteLAN
User
information
Enter
Enforcen nt
History
Information in
this free form
text field
Use scroll
bars to
scroll
thmugh
Last Required Update: March 2003 (Version 3.13)

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Ouick Reference Guide
Party Information
Contacts Tab
On the Contacts tab, you can enter information about people related to a party, for example, the party’s attorney. The tab is
the same as the Name List screen in WasteLAN. However, the only roles you will see are those related to a party. You must
select a role for the contact by choosing one from the dropdown list.
1. To access the Contacts tab, double-click in the Contacts field on the Summary tab, or select the Contacts tab.
2. Enter the contact’s name and address information and select a role. To see all the contacts for the party, use the arrows at
the bottom of the screen.
3. To add a new contract click the Add button and enter the appropriate information. To delete an existing contact, click the
delete button.
I UTII1flhTT?flrr.i.
rMTY —
iui yI tLu .iI ----- I f
- ___
Fb N. J - __
ci sz j r i
). . _ ). -
1 .
I __ __
! i tMI A
Use the scroll bars
to scroll through the
Conta s
Click the Add or
Delete buttons to
add or delete a
Contact
Last Required Update: March 2003 (Version 3.13)
S

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Ouick Reference Guide
Party Information
Comments Tab
The Comments tab allows you to enter comments about the party. The comments are not site specific and can only be
viewed in your region. If you wish to make comments about a party that are specific to a site, you can do that on the
Involvement tab.
1. To access the Comments tab click on the Comments tab.
2. To enter comments about the party click in the Party Comments field and begin typing.
Enter Comments here -
Exiting the Party Inf ormatlon Screens
To exit the Party information screens and save the site association and the information on the party, you must go back to
the Summary tab. Clicking the OK button will bring up a message asking if you want to save your changes. Click Yes to
save your changes and exit the Party Information screens.
Last Required Update: March 2003 (Version 3.13)

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G

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CHECKLIST OF
PRP SEARCH TASKS
NOTE: This checklist is intended as a tool, listing tasks which may be assigned or performed during PRP
searches, depending on site enforcement strategy and needs. The list which follows does not imply that all
tasks must or should be performed, and the sequence in which tasks are performed should be governed by site
strategy rather than the order listed below.
Region: _______ Site Name: __________________________________________
Location: ____________________________________________
TASK TASK SELECTION CRITERIA! CONDI11ONS
1. 0 Agency Record Collection and Gather and organize the information; review records to extract PRP
File Review information and leads
Files are:
File Location
# of Page.
U Federal
O State
U Local
O Other
Use this space to describe anything unique about the records and their condItion induding
business confidential, contamination, travel involved, aocess, other sources besides hard copy, etc.
fl..,,fl fl f l f i f inn fl u•n uI UNflN. u., , u u u.,I niun flu flu
2. 0 Title Searches Note: Recommend that title searches begin with the first industrial activity or use of the
properly. Alternatively, 50 yeans or the end of World War Il may be used as a starting point
for title history.
A. 0 Simple Title se.rci Site involves less than five parcels and the site does not have a long
history of industrial use.
B. 0 Complex Title Search Site involves more than five parcels and/or has a long history of
industrial use.
C. 0 Unknown Title Search A site property description will need to be developed by EPA, or EPA ’s
enforcement contractor along with an estimate of the title search cost.
D. 0 Title Search for Recorded Indudes deeds, leases, mortgages, liens, plate maps, contracts.
instruments Necessary to support site history and PRP list. If litigation is expected,
certified copies (see next task) are usually required for admissibility.
E. 0 Certified Copies Indudes deeds, leases, mortgages, liens, death records, wills, lawsuits
and contracts. Obtain certified copies if litigation is expected and case
attorney requires certified copies for court admissibility.
F. U Chain of Title A chronological list of title instruments for quick reference to title
transactions over time.
G. U Property History Narrative Requested for more complex sites when a detailed narrative
description of property history uld assist case development.

-------
Checklist for Tasking
Continued —
TASK TASK SELECTION CRITERIA I COND ONS
3. 0 IntervIews with Government iviews required of persons known or suspected to possess unique
officials iflfOmlatiofl about the site. Interviews generally conducted by phone
unless travel is specifically requested. This task is used in most PRP
searches.
4. 0 Records Compilation Records are located and manually organized to permit easy access
and use. A file system and index are usually established. Depending
on the number of records, records may be computerized.
5. 0 Compliance History This task provides a narrative desaiption of site compliance status for
a specified period of interest focusing on activities and parties involved
with hazardous wastes.
6. 0 PRP StatusIPRP History PRPs for which a current address is not available are researched to
determine their fate. Names, addresses, and registered agents are
provided for the PRP5 and any successor companies.
7. 0 PRP Name and Address Update Current name and address information is obtained for identified
PRPs. Indudes name, address, registered agent, mergers, and
name changes.
8. 0 CERCLA 104 (e) Letters EPA identifies PRPs and collects evidence by sending section
104(e) information request letters. The information gathered from
104(e) letters is critical to site history, status, chemical use, disposal,
volume, and other information to determine liability.
9. 0 Financial Status Solicit financial information through CERCLA 104(e) authority
regarding the financial condition of the PRPs. This task can provide
PRP information such as financial status, officers, and current
business operations.
Develop financial Information for: (Identify public vs. private companies, etc )
A. U lndMdual PRPs Attach list of names and addresses
B. I] Partnership Attach list of names and addresses
C. U Corporation Attach list of names and addresses
D. U Exempt Organizations Attach list of names and addresses
E. I] Other Attach list of names and addresses
F. U CERCLA 104(e)! RCRA 3007(c) This task indudes formulating potential questions for PRPs based on
Letters gaps obsen,ed in available information, preparing letters with PRP
names and addresses, and reviewing responses for information
relevant to PRPs.
10. U History of Site Operations Note: This task may be more appropnate y pert brrned after issuance
of information request 104(e) letters and the review of PRP files. A
narrative description of site operations through a specified period of
interest is presented in a report. This history focuses on activities and
parties involved with hazardous wastes. Particularly useful if many
operators or various types of operations ware involved at the site.
-2-

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Ch.cklist for Tasking
Contlnu.d -
TASK TASK SELECTiON CRITERIA I CONDITIONS
11. I] Report Preparation PRP reports should include sections on the site background, project
approach, contracts and sources, site history, PRPs, and
condusionsfrecommendations.
12. 0 AerIal Photographs and Aerial photographs and Sanbom maps can provide detailed site
Sanborn Maps information without accessing the site. They can also be used to
compare site characteristics over a period of time.
13. I] CERCLA Subpoena Authorfty Authority to serve administrative subpoenas to obtain evidence from
PRPs and others. The subpoena is useful in situations when the PRP
may not respond to the information request under 104(e) e.g.,
obtaining financial and account records from financial institutions.
14.0 Field Survey This task Is used to gather additional evidence through field activities
such as general field inspection, document review, personal
interviews, and drum label recording. Usually conducted only when
there is no other information available about a site.
15.0 Industrial Survey This task identifies PRP8 through a survey of local businesses and a
review of various industrial manuals and directories. This is an
indirect method of identif lng PRPs and may be difficult to prove if no
other information is available. May serve as a starting point of more
detailed research into disposal practices of local industries.
16. U PRP File Review PRP documents, such as operator records, are reviewsd to extract
PRP information and leads. This task should be completed after a
review of agency files.
Use thIs space to describe anythIng unIque about the records and theIr condItion including business
confidential, contamination, travel involved, access, other sources besides hard copy, etc.
17.0 PrIvate CItIzenIPRP Interview Interviews with persons known or suspected to possess unique
information about the site. Interviews can be conducted via telephone,
or in person at the discretion of the investigator andlor enforcement
specialist. Detailed interviews, when needed, can be documented by
a transcript.
18.0 EPA Investigations Investigations can be useful in locating individuals, developing
information regarding closely held financial assets, and intervie,Mng
parties with knoiMedge of the site activities. If a potential for danger
erdsts, contact appropriate law enforcement personnel, such as EPA
CID special agents, building security, or local police.
19.0 CERCLIS CERCLIS is an EPA database which generally contains PRP
information such as: name, addresses, types of letters sent (notice,
demand and information request) and the dates sent, crders issued,
and kind of PRP (owner, operator, generator, or transporter).
-3-

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Checklist for Tasking
C.usthiu.d -
TASK TASK SELECTION CRF ERIAI CONDITiONS
20. D Waste Stream Inventory Compile an accurate inventory of wastes that ware disposed of at the
site by reviewing operating Iogbooks, analytical reports, and waste
stream records.
21. I] Process Chemistry Analysis The process chemistry analysis task is generally performed after an
industilal survey and a waste stream inventory. This task attempts to
link industries with wastes at a site.
22. I] Database(s)
A. I] Correspondence A database is created to keep track of PRPs sent letters (Notice or
Information), v tiether they responded, and other information as
specified by EPA. Computerized databases should be considered for
cases with a large number of PRPs.
B. C) Inventory Information management system developed to organize and permit
quick retrieval of documents by key word, author, date, subject, or
other predetermined strategy. Useful for searches with a large
number of documents or if documents must be easily accessed.
C. C] Transactional Site transaction databases are used to rank PRPs based on quantified
site usage information. (See also Generator Ranking)
23. C l Financial Assessment This task provides a more detailed analysis of a PRP’s financial
situation than the flnanaal status task.
24.0 Generator RankIng This is usually a work product(printout) from a transactional database
project (see #22 above). The ranking orders generators by waste
volume or other comparable unit.
25.0 Property Appraisal/Property Appraisal of site property owned by a PRP vi4uith may have value.
Survey Appraisal may focus on contaminated state or post-remedial state.
Please identify person completing this checklist:
Name: ______________________ Title: ______
Region/Other: _________________ Phone Number:
Mailing Address: _________________________________
-4-

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H

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List of Team Members for the
PRP Search Enhancement Team
August 14, 2003
Team Member Address
Doug Ballotti U.S. EPA, Region 5
(P) (312) 886-4752 77 West )ackson Boulevard/S-6.J
(F) (312) 886-4071 Chicago, IL 60604-3507
Lisa Blum Office of Site Remediation Enforcement
(P) (202) 564-4283 Regional Support Division
(F) (202) 501-0269 1200 Pennsylvania Ave., N.W./2273A
Washington, D.C. 20460
Nancy Deck, Team Leader Office of Site Remediation Enforcement
(P) (202) 564-6039 Policy & Program Evaluation Division
(F) (202) 564-0074 1200 Pennsylvania Ave., N.W./2273A
Washington, D.C. 20460
Clarence Featherson Office of Site Remediatlon Enforcement
(P) (202) 564-4234 Regional Support Division
(F) (202) 501-0269 1200 Pennsylvania Ave., N.W./2273A
Washington, D.C. 20460
Cheryle Micinski U.S. EPA, RegIon 7
(P) (913) 551-7274 901 N. 5 th Street
(F) (913) 551-7925 Kansas City, KS 66101-2728
Monica Gardner, Mgmt. Advisor Office of Site Remediation Enforcement
(P) (202) 564-6053 Policy & Program Evaluation Division
(F) (202) 564-0074 1200 PennsylvanIa Ave., N.W./2273A
Washington, D.C. 20460
Harry Stelnmetz U.S. EPA, Region 3
(P) (215) 814-3161 1650 Arch Street/3HS11
Philadelphia, PA 19103

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List of Regional Contacts
PRP Search
for the
nhancc
August 14, 2003
Efforts
Region Regional Contact
Address
Region 1 James Israel
(P) (617) 918-1270
Alt. Barbara O’Toole
(P) (617) 918-1408
Region 2 Carol Berns
(P) (212) 637-3177
(F) (212) 637-3104
U.S. EPA, Region I
1 Congress Street
Boston, MA 02203-2211
Office of Regional Counsel
290 Broadway - 17th Floor
New York, New York 10007-1866
Region 3 Harry Stelnmetz
(P) (215) 814-3161
(F) (215) 814-3005
Region 4 Herb Miller
(P) (404) 562-8860
(F) (404) 562-8842
Region 5 Thomas Marks
(P) (312) 353-6591
(F) (312) 886-0753
Region 6 Buddy Parr
(P) (214) 665-6670
(F) (214) 665-6660
Alt Janice Bivens
(214) 665-6717
Region 7 Dlanna Whitaker
(P) (913) 551-7598
(F) (913) 551-7925
PRP Investigations &
Site Information Section
650 Arch Street/3HS11
Philadelphia, PA 19103
Cost Recovery Section
Waste Management Division
61 Forsyth Street, S.W.
Atlanta, GA 30303
Remedial Enforcement Support Section
77 West )ackson Blvd. (Mall Code SM-51)
Chicago, IL 60604
Cost Recovery Section
Superfund Division
1445 Ross Avenue (Fountain Place)
Dallas, TX 75202-2733
U.S. EPA, Region 7
CNSL/ R7
901 North 5 th Street
Kansas City, KS 66101
Region 8 David Broste
(P) (303) 312-6209
Greg Phoebe
(P) (303) 312-6466
Region 9 Cliff Davis
(P) (415) 972-3125
(F) (415) 972-3520
Office of Enforcement, Compliance, and
Environmental Justice
999 18th Street/8ENF-T
Suite # 500
Denver, CO 80202-2466
Superfund Division
75 Hawthorne Street/SFD-7-B
San Francisco, CA 94105
Region 10
Deborah Burgess
(P) (206) 553-0459
1200 6th Avenue (MC: M/S ECL-110)
Seattle, WA 98101

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I

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On-Line Sources of PRP I
September 2003
Basic Internet Info and “How to Search” Articles
http://www.matisse.netlfiles/glossary.html (Glossary of Internet Terms)
http://www.onllnemag.net/JuIOL97/net7.htmI (Internet Search Techniques and Strategies)
http://www.onlinemag.net/OL1998/net9.html (More Internet Search Strategies)
Search engines
http://www.google.com
http://hotbot.lycos.com
http://www.altavista.com
http://www.alltheweb.com
http://www.startingpage.com/html/search.html
Megasearch (search multiple search engines simultaneously)
http://www.ProFuslon.com
http://www.metacrawler.com
http://www.thebighub.com
http://www.dogplle.com
Librarian’s Index to the Internet
http://Iii.org
Netcraft Web Site Finder
http://www.netcraft.com
Who is Database Search (gives info on computer identities)
http://www.arIn.net/whols/arInwhois.htmI
Directories of Directories
httprch.netscape.com
http ://search.netscape.com/nscp_browse.adp?ld = 10 (Reference/DIrectories)
http :1/search. netscape.com/nscp_browse.adp?ld=57186 (Investigation/Records Research)
Scan millions of listings by name or e-mail address
http://people.yahoo.com
http://www.blgfoot.com
http://www.whowhere.com
Find someone on the Internet
http://my.email .address. Is
http://www.startingpage.com/htmI/lookup. html (Directory of Databases)
E-Mail address searching FAQ
http://www.quc ls.queensu.ca/FAQs/email/b lgf lfldlflg.htm l
AT&T Nationwide Toll-Free 800/888 Directory.
http://www.tollfree.att.net/tf.html
Reverse Telephone Look-ups
http://www.lnfospace.com/lnfo/revphone.htm
http://www.reversephonedirectory.com
http://www.anywho.com/ri. html

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Telephone Directories
http://www.swltchboard.com
http://www.teldir.com/eng/namc/us (Multiple Directories)
http://www.whowhere.lycos.com/Phone
Find people and businesses
http://www.startlngpage.com/html/lookup.html
http://yplO .superpages.com
Find companies
http://www.freeality.com/findc.htm
http://www.startingpage.com/html/business.htmI
ZIP code lookup
http ://www. usps.gov/ncsc/lookups/lookup_ctystzip.html
http://www. usps.gov/ncsc/iookups/lookup_zip+4.html
(for local post office telephone number 800-275-8777 option #4)
Find people who have recently moved by e-mail, domain name, address or name
http://www.semaphorecorp.com/default. html
Maps
http://www.mapquest.com
http ://MapsOnUs.com
http://www.geographynetwork.com/maps/index.html
http://www. nationalatias.gov/maplt.html
http ://www.epa.govfenviro/html/modfmod.html (EPA maps)
http://www.freeality.com/maps.htm (Find map sites)
Scan the Social Security Death Index for the potentially dearly departed
http://www.ancestry.com/search/rectype/vital/ssdi/main.htm
EPA/Environment
http://es.epa.gov/oeca/main/compasstjcompcenters.html (EPA Compliance Assistance)
http://www.ert.org (EPA Environmental Response Team)
http://es.epa.gov/oeca/osre (EPA Office of Site Remedlatlon Enforcement)
http://www.epa.gov/OCEPAterms (EPA OCEPA Terms and Acronyms)
http://www2.ihsenv.com (Environmental Information - ENFLEX EH&S Database)
http://www.rachel.org/home_eng.htm (News and resources for environmental Justice)
http://www.clu-in.org (Hazardous Waste Clean-up Information - CLU-IN)
http://www.tralnex.org (EPA Training-Exchange)
http://es.epa .govfoeca/oceft/netl .html (National Enforcement Training Institute)
http://www.achmm.org (Academy of Certified Hazardous Materials Managers)
http://www.epsllonsystems.com (Epsilon Solutions training)
Internal EPA
http://lntranet.epa.gov/instltute (EPA Institute)
http://lntranet.epa.gov/fmdvally/poilcies/pollcies.htm (EPA Policy Announcements)
http://intranet.epa.gov/oeca/osre (EPA Site Remedlation Enforcement InfoBase)
http://intranet.epa.gov/oerrlnet (EPA OERR Superfund/Oll IntRAnet site)
Business Sites
http://www.startlngpage.com/html/business.html (Directories)
http://www.wsj.com (Wall Street Journal)
http://www.thestreet.com
http://money.netscape.cnn.com/money (Money & Business from CNN Money)
http://localbusiness.com
http://netbusiness.netscape.com
http://www.fool.com (Motley Fool)
http://www.osha.gov/cgi-binfest/estl (Search OSHA Inspections)

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http://www.cis.org/search.html (Search for Employers employing illegal aliens)
http://www.hoovers.com (Hoovers Company profiles)
http://www.qspace.com (Credit Reports Online)
http://www.thomasreglster.com (Search ThomasRegister)
http://www.taxprophet.com (California Certified Taxation Law Specialist)
http://www.sec.gov/edgarhp.htm (Search SEC Filings - EDGAR)
Law
http://www.lawguru.com/search/lawsearch. html
(search on more than 535 legal search engines)
http :/fuscode. house.gov/usc. htm (Search U.S. Code)
http ://www.arnet.gov/far (Federal AcquIsition Regulation)
http://www.law.indiana.edu/ v-lib/lndex. html (Virtual Library-Law)
http://supct.law.comell.edu/supct/index.html (Published Supreme Court opinions)
http://www.martlndale.com
(find lawyer by name, location, practice, firm, agency, school, etc.)
http://directory.findlaw.com (Lawyer Directory)
Libraries and Public Information
http://lcweb.loc.gov (Visit the Library of Congress online)
http://www. nhtsa .dot.gov/cars/problems/complain/Index.cfm (Search NHTSA)
http://www.infoplease.com/lndex.html (Almanacs and more)
http://www.newspapers.com (Locate Local Newspapers)
Bankruptcy
http://www.ablworld.org (American Bankruptcy Institute)
http://home.att.net/ivjshablb (Bankruptcy Code in Windows Help File format)
Law Enforcement
http:f/www.fas.org/lrp/gao/osi-97-2/soi_ch4.htm (GAO Investigators Guide to Info.)
http://www.ojp. usdoj.gov/bJs/welcome.html (Bureau of Justice Statistics)
http://virllb.ncJrs.org/LawEnforcemeflt.asp (National Criminal Justice Reference Service)
http://www.llr.com/riss (DOTs Regional Information Sharing Systems)
http://www.ncjrs.org (National Criminal Justice Reference Service w/ abstracts)
http://www.copllnk.com
http://www.copnet.org
Directories of Government Sites
http://flrstgov.gov (first click to the U.S. Government)
http://www.tray.com/fecinfo (Federal Election Commission political donations Information)
http:/fwww.vlsi.comIjuan/CoflgreSs (Find your congressperson)
http://www.statelocalgov.net/lndex.cfm (State and Local Government on the Net)
http:f/ www.genealogy.com/O0000229.html (Locate County Courthouses)
http://tracfed.syr.edu (Information about the federal government)
Time.com News Service
http://www.tlme.com/time
General Travel Information
http:f/lntranet.epa.gov/ocfo/flnservices/tmcfaq . htm
http://www.fedtravel.com/gsa/Default.asp
http:f/home. netscape.co rn/travel
http://fllght.thetrlp.com
Per Diem Rates
http://www.pollcyworks.gov/org/main/mtlhomepage/mtt/perdiern/travel .shtml

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Stock Quotes
http://finance.yahoo.com
Mortgages and Loans
http://www.pncellne.com
http://www.bestrate.com
http://www.quicken.com

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OECA: Superfund Enforcement Directory
Page 1 of 2
U.S. Environmental Protection Agency
Office of Enforcement and Compliance Assurance
Contact us Print Version
EPA Home’ Compliance and Enforcement> Cleanup Enforcement> Suoerfund > Superkjnd Enforcement Directory
Close Window Superfund Enforcement Directory (SFED)
Intro to SFED
One of the central functions of the PRP Search Enhancement Team Is to encourage and support the sharing
of information and coordination of activities among various EPA organizations that are involved in the site
remediation enforcement process. Because people with experience and expertise in topics relevant to site
remediation enforcement are spread throughout EPA Headquarters and the Regions, it is often difficult to
know who to contact for information about a particular subject The purpose of the SFED is to provide a
single resource that identifies EPA personnel who are involved in the site remediation enforcement process
and their particular areas of expertise They may also function in other roles not reflected in the Enforcement
Directory, and may have formal job titles not directly related to site remediation enforcement
SEARCHING THE DIRECTORY
The Enforcement Directory is a searchable contact list of EPA professionals who are involved in the site
remediation enforcement process. The SFED enables you to search for EPA personnel by name, Region,
PRP search enforcement subject, or PRP search enforcement title.
The search page is divided into sections by search method On the left sidebar, there are two options, a
“Submit” option and a “Reset” option. The “Submit” option executes a search using the values entered In the
search fields. The “Reset” option clears existing search values and allows you to enter new information.
l’ielp icon: This icon, located on the search page, provIdes quick search tips. Place the mouse over
Fhe Icon to display the search information In a pop-up box.
Search by name: The “Search by name” search method enables you to search for a person using all or part
of either their first or last name To search by name, enter a complete or partial first andlor last name in the
fields then click on the “Submit” option on the sidebar or the “Submit” button at the bottom of the page. All
personnel matching the search values provided will be displayed.
Search by RegIon: The “Search by Region” search method provides you with a complete list of EPA
personnel by Region To search by Region, select one or more Regions from the scrollable menu. (To select
multiple Regions, hold your Shift key to select a range of Regions or hold your Ctrl key to select Individual
Regions) When you have selected the Region(s), click on the nght arrow button to enter the selected Region
(5) in the selection box. (To remove a Regton from the selection box, select the Region to be removed then
click on the left arrow). To execute the search, click on the “Submit” option on the sidebar or on the “Submit”
button at the bottom of the page. All personnel for the selected Region(s) will be displayed.
Search by PRP search enforcement subject: The “Search by PRP search enforcement subject” search
method enables you to find personnel with knowledge/expertise in a particular subject area. To search by
enforcement subject, select one or more subjects from the scrollable menu. (To select multiple subjects, hold
your Shift key to select a range of subjects or hold your Ctrl key to select individual subjects). When you have
selected the subject area(s), click on the down arrow to move the subjects to the selection box. (To remove a
subject area from the selection box, select the subject to be removed then click on the up arrow). To execute
the search, click on the “Submit” option on the sldebar or on the “Submit” button at the bottom of the page.
All personnel with knowledge/expertise in the selected subject area(s) will be displayed. If you are unable to
locate the subject you are searching for in the scrollable subject menu, you may locate it in the titles menu.
Search by PRP search enforcement title: The “Search by PRP search enforcement title” search method
enables you to search for personnel by job title. To search by title, select one or more titles from the
scrollable menu. (To select multiple titles, hold your Shift key to select a range of titles or hold your Ctrl key to
select individual titles). When you have selected the title(s), click on the down arrow to move the titles to the
selection box (To remove a title from the selection box, select the title to be removed then click on the up
arrow) To execute the search, click on the “Submit” option on the sidebar or on the “Submit” button at the
bottom of the page All personnel currently holding the selected title(s) will be displayed.
Sort Tips:
Your search results can be sorted in a variety of ways from the Main Page:
To sort contacts alphabetically by last name, click on the Name and Address heading. To find a specific
contact, click the first letter of the contact’s last name on the alphabet bar at the top of the screen. The sort
will then start with that letter.
file://R:\PROJECT\3946-OSRE2\007\PRP%20Search\PRP%2OSearch\Appendix\OECA%20Superfund%20... 9/11/2003

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OECA: Superfund Enforcement Directory Page 2 of 2
To sort contacts numerically by Region/HO, click on the Region heading. To find a specific Region, click the
Region number on the numerical bar at the top of the screen The sort will then start with that Region.
To sort contacts by subject, dick on the Subject heading The contacts will be sorted numerically by Region,
and alphabetically by subject within each Region
PrintIng:
To pnnt the entire report once It is generated, click on the “Pont List” option located on the left sidebar. To
print the report page by page, click on the printer icon at the top of the screen. To return to the Main Page
after printing, dick on the browser “Back” button.
EmaIl List:
To generate a list of email addresses for selected contacts, click on the “Ematl List” option on the left sidebar.
Once the list has been generated, highlight the email addresses, place your cursor over the highlighted text,
right click and choose “Copy”, open your email program, and start a new message. Place the cursor in the
“To:” field, right click, and choose “Paste.”
Mailing Labels :
For mailing labels instructions, click the link above.
If you have any questions or comments regarding the Enforcement Directory please contact Nancy Deck at
declcnancy@ena.gov .
For a more complete guide to SFED. select the “User’s Manual” option from the left sidebar of the Main
Page.
Note: At this time SFED includes primanly EPA personnel. The directory will be expanded in the near future
to include State, tribal, and other organizations that are involved in the site remediation or PRP search
enforcement process.
EPA Home I Pnvacy and Secunty Notice I Contact Us
This page design was last updated on Tuesday, April 22, 2003
file ://R:\PROJECT\3 946-OSRE2\007\PRP%20Search\PRP%20Search\Appendix\OECA%2OSuperfund%20,.. 9/11/2003

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U.S. Envlmnmental Protection Agency, Region IX
i E PA Financial Statement for Individuals *
(If adddeesil epene Is needed, tInde e paIute sheet)
our name and address CnchóngziPCOdO eitd iufl1Y)
Zip Codu County
2. Home phone number 3. Maritalstatus
4 Soaat a Yours b. Spouse
earn,
(optional)
Section I Employment Information
5. Present employer or business (name and addresS)
5a. How long at present
empioymenL
6 BusIness phone number
7 Occupation
a. Check appropriate box
0 Wage earner 0 Partner
0 Sole pmpnetor 0 Corporate officer
9 Spouses employer or business (name end address)
9a How long etpresent
employment
10 BusIness phone number
11 OccupatIon
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Section II. Personal Information
13. Name, address and telephone number of next of Ian or other reference
Date of birth a. Yours b. Spouse’s

.:
Section III. General Financial Information
15 Last three years Federal and state I Sa. Ar ustad gross income on returns.
Inoome tax returns flied per year
16b. List all states these returns were filed in
16. Bank accounts (i alude SaWngs & Loans Dent Unions. IRA and Ref iement P1 ens, CeitlflcatesofDepo* etr )
Name of InstitutIon
Address
Type of Account
Account No.
Balance
Total (Enterl,, Item 25)
• This InformatIon le requested pursuant to Section 104(e) of the Comprehensive Environmental Response Compensation and L lfty Act, 42USC § 9604, end Is not subject to
approval of the Paperwodi Reduction Act of 1980.44 U.S.C § 3501, at seq.
=1 =
tcasedevfdbihdo pied - revIsed 011081912

-------
Section III - continued General Financial Information
17 Charge cards. Unes of credit
Munthty
Payment
Credit
limit
Amount
us e d
19. Real Property (Bdef descr7plwm of psupezly end type of ownersh,p)
a
b.
C.
Address (lnriude ccunl stale and parcel number)
Total (En l e r a r.m27)
20. Insurence Policies (Name of Company)
21 Additional Finanixel Information (Court and admnest,ative proceedings by or against you, legal dahns(whether asserted or notj, settlement agreements
emplo3 Ynent agreements consulting end similar agreements, ‘ o n parechute agreements, banleuplcies, repossesslons, ,ecentbansftrs of assets for less
than full value, anticipated Increases In income, reel estate being puichesed under contact reel or personal property being held on your behaH condition of
health. informal aim on trusts, estates, profit-shanng plans, Inheil tense, etc., in or of which you are a participant or beneficiary).
Policy Number
Type
Face Amount
Available Loan Value
22. Are you serrently receiving retirement benefits as a fomier civilian or military employee of the federal government? If so, give dates of service, agency or branch
of saMoa employed by. and location of employment.
23. Indicate any business entity with which you own five (5) percent or mare of the outstanding stodc (or other equity interest).
Name of Business Entity
Address
Percentage of Stock
Date Purchased
Type of Account
or Card
Name and Address of
Financial Institution
Credit
Avaliable
Totals (Enters, Rem 31)
18. Safe deposit boxes rented or accessed” ‘ ‘
. . .... box numbers, and cantentssnclud ,r ,qesbn etedmwketvaluel
meedes 5thui1o — c2 nebed O4 &92
=2=

-------
Section IV. Asset and Liability Analysis
DescriptIon
Current
Market
Value
LiabilIties
Balance
Duo
Equity
In
Asset
Amount of
Menthly
Payment
Name andAddrese oflsaueror

Date
Pledged
of
Fked

Cash and precious metals orgenis
,
25. Bank accounts
.
26 a. Stodcs
b Bonds
L
c. Mutual Funds. Partnership Interest,
Securities and other Investments
27. Cash or loan value of Insurance
28 VehIcles (Model, yea,; bcense)
‘a
I
Ic.
29. Real I Ia.
lb
puoperty
item 19)
IC
30 Other tangIble assets (Including art.
boats, jewelry, options, etc.) orflriancial
debts owed to you In excess of $1000
a.
b.
“t
C.
d
31 Bank revolving credit
32 Other
Uablhlles
(Include
Judgements,
notes,
taxliens,
etc.)
a
b
c
d
a
f
9
33. Federal and state Taxes Owed
!

• ,
.
34 Totals
S
Enter in item 49
.
.
List an transfers real & personal property. IflclUdIWJ cash (by gal or ban made not at fair market terms) that you have made within the last 3 years (items with a current market value of
$1000.00 or more) — ________________________
Date
CUrrent Market Value
Sale Pme You
Received (d any)
DesoriptiOflof Pioperty Transferred
To Whom
(Indicate relationship to you)
Nature and Conditions of Transfer
=3=
tmeedevtittiibio — ‘3 . revised O &9I2

-------
Section V. Monthly Income and Expense Analysis
Incenie
seMExpen
47 Rent (Do not show mo tgage listed in Item 29) $ -
Source
Gross
Net
35 WageslSalanes
S
36 WageslSalanes (spouse)
48 Groceries (no. of people)
37 Sales Coninissions
49 Installment payments
38 Interest- Dividends
50. Uhhtles (Gas $ Water S______
39. Net business income
Electric S Phone S_____
40. Rentallnoome
51 Transpottation
41 Pension/Social Secunty income
52 Insurance (Llfe$ Health $______
42 Pension/Social Security meome (spouse
Horse $ CarS______
43 Child Support
53. Medical (descnbe If In excess of $500.00)
44. AlImony
54. Estimated lax payments ( if seIf .employed)
45. Other Income (e.g Invest merit income,
gains)
55. Other expenses (specl )
46. Total
S
S
56. Total
S
- ‘
, ‘
• •
‘ - ‘
‘ -, -., . .,‘
•
“ -
. ‘
.
Certification
Under penalties of perjury. I declare that to the best of my blowladge end belIef this
statement of assets. liabilities. end other Information letive, correct, end complete.
57 Your signature
58 Date
tomedevltbiids - iuvbod 0410092

-------
U.S. Environmental Protection Agency. Region IX
EPA Financial Statement for Businesses *
________________ __________ ( If od tioiiai apace is needed , attach a separate sheet)
3 Name and address of registered agent (.ncludlngzlpcocle end county)
10. Bank accounts (List all types of accounts ndr
Name of Institutloti
Name of Inst itution
ng checlung , sawigs, certificates of deposit, etc.)
Address
Address
2. BusIness phone number ( )
0 Trust
o Other (spedfy)
5 State of Incorporation (or counby if foreign) 5a Employer ldentillcabon Number 6. Date of Incorporation Ta. Type of business
lb SIC Code
8. Information about owner, partners, officers, directors, major shareholder (5% or more atooli ownership), other holders of more than 5% equity mterest, holders of rights to purchase
more than equity Interest end other persons with an ability to control
Name and Title
Effective
Date
Home Address
SOcial Security
Number(optlonal)
Phone Number
Total Shares
or Interest
tIon I
General Financial Inform
tion
9. Last three years Federal and state Income tax returns I Forms Flied
i Tax Years ended Net incrsne before
11 Bank Credit available (Lhiesofowdd etc.)
Credit
Available
Type of Account
..ocalion. box number, and contents of eli safe deposit boxes ranted ors . ’e”sd
•ThIs Information Is requested pursuant to Section 104(e) of the Comprehensive Environmental Response, Compensation and Uab illty Act. 42 U.S.C. § 9604, end Is not subject to
approval of the Papeiwcrk Reduction Ad of 1980,44 U.S.C. § 3501, at seq
=1= i saeedsvilbbethvtpmt - resaud 041060211 1
CredIt
UmIt
Amount
Owed
AccountNo.
Total (Enterin Item 19)
Balance
Mon
ur name and address
,rjud,ngzlpcode and county)
la business name and address
(,nciUdrngzipcode and county)
4. (Checkapprapnate box)
0 Sole propnetor
0 Partnership
Dc n

-------
Section I - continued General Financial Information
13 Realproporty
Brief Description and Type of Ownership
Address (,ndude ceunty, state adpwcelnumbe,)
a.
b.
C
14. Insurance policies owned with businesses beneficiary
Nwne Insured
Company
Policy Number
Type
Face Amount
Available Loan
Value
: _ . Total (Entenn Item 21)
_._.......d ngsbyoragainsttheb
assetsofherthenlntheoi inaiycourSe of busIness, logel claims (whetherassested or not), bankruptcies, ivpossesslons, recenttfansfersofassetsforlessthanft,II
value, anbr pated increases in income, options to buy or sell real or personal propert y, real or personal propetty being purchased under contract, real or personal
prope,lybeinqheldon beheif of the business).
15a. Ust all subsidianes owned, jointventures. partnerships and other entities controlled by the business. Provide current market value of the business’ interest in such
subsidiary or other entity.
16. Federal government departments or
lencues with $iom you have a contract for payment of goods or seMnes
-
FMomlnnwnm,wnntdanaitmentanr pnemsthathm,psytpndpdnrnivpnlhp be ir slnane cimntenreacla , nrtnwhIrJ irej havesi
SM (nr tii natp nacluinci
16a.. -
for any loan, grant, or assistance) In
he past 5 years.
Amount Due
Due Date
ste
Aaencv Name
Mtham
17 AccountslNotes raceivable (Inrlude loans
iostesthoidegs, officers, parffiers, etc.)
Ana.ini Iiatv.a
M am
ContractNo.
Amount to be Received
Payment Duo Date
-- r— rr, -——.
Tetal(Entartettem2O)
mesdu Iimt i4 - ievbed 050092121
=2=

-------
Section II. Asset and Liability Analysis
Dewiption
(a)
.6.Cashonhand
Cur. Mkt
Vatue
(b)
LiabilIties
Sal. Due
(c)
Equity In
Asset
(d)
Amount of
Mo. Pymt.
( 0)
Name and Address of
UenlNoteHoldedObllgee
(1)
Date
Pledged
(g)
Date of
Final Pymt
(h)
‘
19. Bank accounts
19a Secuifiles and other financial assets
owned
,
20. AcoountslNotes receivable
.
21 Insurance Loan Value
—
•
22. Real
property
from,twn13)
a.
b
C.
d
23. Vehicles
(Model. year,
hcense)
a
b.
C
4 Madunery and
equipment
( ec
a.
b
C
25. Menthandise
ulvento iy
(Specify)
a
b.
26. Other Assets
(induding
pennie.
licenses, tax
loss cany
foiwards.
agreements not
tocompate.
other confracta
(Sp
a
b
C
d.
27.Other a
Uabfitsos
—
ft b.
nslea
tax kena
etc.) c.
d.
a.
..a. Federal 8 State Taxes Owed
-
S
.
.
.

.
‘
-
.:
-
‘
29. Tetale
. . -
,
oiesdmteI snntpm4 nebed 04108192131
=3=

-------
Section III. Income and Expense Analysis
The following information applies to income and expenses dunng a one year penfl
to
Accounting method used
Income
Expanses
30. Gross receipts tram sales, services, etc.
$
38 Materials purchased
$
31. Gross rental Income
37. Wages and salaries of employees
.
38. Wagesftalaneslbonuses for officers, directors and
stockholders
33. DIvidends
39. Rent
34. Other income ($pecfl
40 Installment payments (from line 29)
41 Supplies
42 Utilities (Telephone
43 Gasoline/OIl
44 RepaIrs and maintenance
45 Insurance
4$ Current taxes
47 Other, including fees paid for services (SpecS) ’)
35 Total
$
4tTotsl
$
: . . . . - , -
49.Netdhtference
$
50. LIst all Iransferred real & personal property, including cash (by gIft by loan that was not at
of business, etcjthat was made wIthin the last 3 years (flame of $3,000 °or more):
fair market terms; by sale for less than faIr market valise or made outside the norms course
Date
Amount
Property Transferred
To Whom
CondItions of Transfer
fl tk ’
-
: ‘

\-‘:
- - “ .;

‘;
(lndzcateanyretatronshiptobusiness
oritspartnsrsdirsctorsstocthold-
era, orothe’controllrngpessons)
-- - f
r
‘ - - - - —
Certification
Under penallies of perjury, I declare that to the best of my knowledge and belief this
statement of assets, riabsies, and other lrdom’patlon Is true, correct and complete.
51. Signature 52. Pont Name (Title 53 Date
tceaedwltb k elimtpii4 . ug,i. O4 S52 [ 4j =4=

-------
U.S. Environmental Protection Agency, Region IX
# EPA Financial Statement for Trusts *
(If eddilime! stace needed. diIath a eeperete eIreel)
Name of Trust
2 Trustor Name and Address
3. Phone number
Section I Trustee
Information
4 Name and address
5 Phone number
6 Name and address
7 Phone number
Section II. Beneficiary Information
8. Name, address and phone number
9 Name. address and ptlone number
10. Name, address and phone number
Section III. General Financial Information for Trust
11. Last three years Federal and state 12 Adjusted gr u masse on returns. 13 List all states these returns were filed in.
Income tax returns filed psr sar
14. Bank accounts (inctude Savrngs £ Loans. C,sdd L s. IRA si RaW neat Rwis. Cefthcotes of Deposit. oft)
Name of Institution Address Type of Account AccountNo. Balance
Total (Enter In Item 23)
This Information Is requested pursuant to Section 104(e) of the Comprehensive Enwonmantal Response, Compensation and Uabllity Act. 42 U.S.C. § 9604, and Is not subject to
approval of the Paperwork Reduction Act of 1980.44 USC § 3501. et seq
=1 = e I Wbrfo.pm4 ci . - revised 0444 1912

-------
Section III - continued General Financial Information on Trust
15 Chgecaids.Unesofcredit
Totals (Enter hi Item 28)
16. Safe deposit boxes rented or eseed (L 1st eli locabons, box numbers, and contents nickidingesbmatedmaiketvahie)
17 Real Property (Bnef desa,pbon of ,opesty and type of otiriersh,p)
Address (Inr4udeco mty state end parcel number)
a.
b.
C
18. Insurance Policies (Name of Company)
Policy Number
Typo
Face Amount
Available Loan Value
Total (Enterin Item 24)
19. Additional Financial Information (Cowl and administrative proceedings by or against the Thjst, legal ctalms(wtiether assented or not). settlement agreements,
employment agreements, con uIUngendsimileragreements “golden parachute ”agmements benkruptcies mpossesslons, recent fransf era of assets forbes than
full value, antlc4patadlncraaseslnlncome, real estate being purchased undercontracL re&oraersonaborooetlvbelnaheldonbehaffofthe flust condition of health.
Inlonnabon on trusts, estates, pmfit-shanng plans inheritance, etc., Inot
Type of Account
or Card
Name and Address of
Financial Institution
Monthly
Payment
Cre
Umit
Amount
Owed
Credit
Available
20. Indicate an büSiness entity in WhiCh the Trust owns fIve (5) percent or more of the outstanding stock (or other equity Interest).
Name of Business Entity
Address
Percentage of Stock
Date Purchased
aeder — ‘2 - ed O4 92
=2=

-------
Section IV. Asset and Liability Analysis
osestp t ion
- Cash and predous metals or gems
Current
itaritet
Value
Liabilities
Balance
Due
Equity

Asset
Amount of

Payment
Name and Address of Issuer or
UenlNoteHolderfOb llgoe
Date
Pledged
Date of
Fitial
ont
.
22 Bank accounts
.
- -
23 a Stocks
b. Bonds
c Mutual Funds, Partnership Interest.
Securities and other Investments
24. Cash or loan value of Insurance.
25. Vehicles (Modei peer, license)
‘a
lb.
IC
26. Real
properly
(From
tern 17)
Ia.
I
I b.
.
I c .
27. Other tangible assets (lndu ng art.
boats. jewelry. optIons etc.) orlinanclal
debts owed to the Trust in excess of
$1000
a.
b
C
d
28 Bank ruvuMng aedil
29. Other
Liabilities
(Indude
Judgemerits,
notes.
teXIief ,
etc.)
a.
.
- -
b.
-
.
c.
‘
d
‘

e.
-
f
.
9
30. Federal and state Taxes Owed
31. Totals
$
$
.
Entarln Item 39
- .
List all b’ansfors real & personal property, induding cash (by gift or loan made not at fair misket terms) to or from the Trust within the last 3years (items with a current market value of
$1000.00 or
Date
Current Market Value
Sale Pnce Trust
Received (If any)
Descdpbon of Properly Transferred
To Whom
(lnd ta t Thed)
Nature and Conditions of Transfer
=3=
tresadsiMninto .pm4 - rmtsed 04is8I912

-------
Section V.
Monthly Income and Expense Analysis of Trust Fund
32. Internet - Dividends
Income
Source Gross
$
$
Nat
37 Trustee service fees
Necessary Expenses
$
36. Total
S
S
44 Total
S
;
—

Certification
Under penalties et ps. wy. I declare that to the best of my knowledge and belief this
atat..m.iltol auute. lI lIlthss, and ether Infonnatlon Is true, correct, and complete.
45. Your signature -
33. Net business Income
38 Rent (Do not show mortgage listed in Item 26)
34. Rental income
39 Installment payments
35. Other Income (e.g uweetmentuicome,
cepit& gains - ea e)
40 UtilIties (GaaS WaterS_____
Electnc$
41 Transportation
.
42 Insurance (spedfr t ie)
43 Other expenses (speWy)
cresdevIthitido.pm4 - rerised 0t108192
=4=

-------
L

-------
Acronyms and Abbreviations
A
AA # ssistant Aamunistrator
MG Assistant Attorney General
ACL Alternate Concentration LimIt
ADR Alternative Dispute Resolution
AM Action Memorandum
AO Administrative Order
AOA Advice of Allowance
AOC Administrative Order on Consent
AOC Area of Contamination
AR Administrative Record
ARARs Applicable or Relevant and Appropriate Requirements
ARCS Alternative Remedial Contracts Strategy
ASTSWMO Association of State and Tribal Solid Waste Management Organizations
ATP Ability to Pay
B
BFPP Bona Fide Prospective Purchaser
BIA Bureau of Indian Affairs
BLM Bureau of Land Management
BPA Blanket Purchase Agreement
BRAC Base Realignment and Closure
BUREC Bureau of Reclamation
C
CA Cooperative Agreement
CM Clean Air Act
CAG Community Advisory Group
CBI Confidential Business Information
CD Consent Decree
CD-ROM Compact Disk Read-Only Memory
CEC CERCLA Education Center (OSWER)
CERCLA Comprehensive Environmental Response,
Compensation, and Liability Act of 1980
CERCUS Comprehensive Environmental Response, Compensation, and Liability
Information System
CFR Code of Federal Regulations
CI Clvii Investigator
dC Community Involvement Coordinator
CLP Contract Laboratory Program
CO Contracting Officer
COl Conflict of Interest
COR Contracting Officer’s Representative
CR Community Relations
CR Cost Recovery
CRC Community Relations Coordinator
CRC Cost Recovery Coordinator
CRP Community Relations Plan
CWA Clean Water Act

-------
D
DA Deputy Administrator
DAA Deputy Assistant Administrator
D&B Dunn and Bradstreet
DCN Document Control Number
DD Division Director
DFO Designated Federal Official
DOD Deputy Office Director
DoD Department of Defense
DOE Department of Energy
DOI Department of Interior
DO) Department of )ustlce
DOT Department of Transportation
DPO Deputy Project Officer
DQO Data Quality Objective
E
EDGAR Electronic Data Gathering, Analysis, and Retneval
EE/CA Engineering Evaluation/Cost Analysis
E.J Environmental )ustlce
EMSL Environmental Monitoring and Systems Laboratory
ENRD Environment and Natural Resources Division (DO))
EPA Environmental Protection Agency
EPMR EPA Acquisition Regulation (Manual)
EPCRA Emergency Planning and Community Right-To-Know Act of 1986
EPIC Environmental Photographic and Investigation Center
EPM Enforcement Project Manager
EPS Environmental Protection Specialist
ERCS Emergency Response Cleanup Services
ERNS Emergency Response Notification System
ERS Environmental Response Services
ERT Environmental Response Team
ESAT Emergency Services Assistance Team
ESD Environmental Services Division
ESD Explanation of Significant Differences
ESI Expanded Site Investigation
ESS Enforcement Support Services
F
FACA Federal Advisory Committee Act
FAR Federal Acquisition Reguiation
FEMA Federal Emergency Management Agency
FFA Federal Facility Agreement
FFEO Federal Facilities Enforcement Office (OECA)
FIFRA Federal Insecticide, Fungicide, and Rodenticide Act
FINDS Facility Index System
FMD Financial Management Division
FOIA Freedom of Information Act
FR Federal Register
FRC Federal Records Center
FS Feasibility Study
FSAP Field Sampling and Analysis Plan

-------
F (continued)
FTE Full-Time Equivalent
FUDS Formerly Used Defense Sites
FWPCA Federal Water Pollution Control Act
FY Fiscal Year
G
GAAP5 Generally Accepted Accounting Principles
GAAS Generally Accepted Accounting Standard
GAO General Accounting Office
GFO Good Faith Offer
GIS Geographic Information System
GNL General Notice Letter
GPRA Government Performance and Results Act
GSA General Services Administration
H
HASP Health and Safety Plan
HAZWOPER Hazardous Waste Operations and Emergency Response
HQ Headquarters
HRS Hazard Ranking System
HSWA Hazardous and Solid Waste Amendments (RCRA)
I
lAG Interagency Agreement
IFMS Integrated Financial Management System
IG Inspector General
IGCE Independent Government Cost Estimate
IMC Information Management Coordinator
L
LAN Local Area Network
LDR Land Disposal Restrictions
LOE Level of Effort
151 Listing Site Inspection
LTRA Long-Term Response Action
LUST Leaking Underground Storage Tank
M
MARS Management and Accounting Reporting System
MCL Maximum Contaminant Level
MCLG Maximum Contaminant Level Goal
MOA Memorandum of Agreement
MOU Memorandum of Understanding
MSCA Multi-Site Cooperative Agreement
MSDSs Material Safety Data Sheets
MSW Municipal Solid Waste
MUNIS Municipalities

-------
N
NAAG National Association of Attorneys General
NARPM National Association of Remedial Project Managers
NBAR Non-Binding (Preliminary) Allocation of ResponsibilIty
NCLP National Contract Laboratory Program
NCP National Contingency Plan
NEIC National Enforcement Investigation Center
NEJAC National Environmental Justice Advisory Council
NEPA National Environmental Policy Act
NESHAPS National Emissions Standards for Hazardous Air Pollutants
NETI National Enforcement Training Institute (OECA)
NFRAP No Further Remedial Action Planned
NOAA National Oceanic and Atmospheric Administration
NOSC National Association of OSCs
NOV Notice of Violation
NPDES National Pollution Discharge Elimination System
NPL National Priorities List
NRC National Response Center
NRC Nuclear Regulatory Commission
NRDs Natural Resource Damages
NRT National Response Team
NTCRs Non-lime-Critical Removals
NTIS National Technical Information Service
0
O&F Operational and Functional
O&M Operation and Maintenance
OAM Office of Acquisition Management
OARM Office of Administration and Resources Management
OD Office Director
ODC5 Other Direct Costs
OECA Office of Enforcement and Compliance Assurance
06 Office of Environmental Justice
OERR Office of Emergency and Remedial Response (now known as OSRTI)
OGC Office of General Counsel
OIA Office of International Activities
OIG Office of the Inspector General
0MB Office of Management and Budget
OPA Oil Poilutlon Act of 1990
ORC Office of Regional Counsel
ORD Office of Research and Development
OSC On-Scene Coordinator
OSHA Occupational Safety and Health Administration
OSRE Office of Site Remediation Enforcement (OECA)
OSRTI Office of Superfund Remedlation and Technology Innovation
(formerly known as OERR)
OSW Office of Solid Waste
OSWER Office of Solid Waste and Emergency Response
OTIS On-Une Targeting Information System
OU Operable Unit

-------
P
PA Preliminary Assessment
PA/SI PrelIminary Assessment/Site Investigation
PCB Polychiorinated Biphenyl
PCOR Preliminary Close Out Report
PNRS Preliminary Natural Resources Survey
P0 Project Officer
POLREP Pollution Report
POTW Publicly Owned Treatment Works
PPA Prospective Purchaser Agreement
PPB Parts per Billion
PPED Policy and Program Evaluation Division (OSRE)
PPM Parts per Million
PR Procurement Request
PRP Potentially Responsible Party
PRSC Post-Removal Site Control
Q
QA Quality Assurance
QA/QC QualIty Assurance/Quality Control
QAPP Quality Assurance Project Plan
R
R&D Research and Development
RA Remedial Action
RA Regional Administrator
RAC Response Action Contractor
RACS Response Action Contracting Strategy
RCMS Removal Cost Management System
RCRA Resource Conservation and Recovery Act
RCRAInf0 Resource Conservation and Recovery Act Information System
RD Remedial Design
RD/RA Remedial Design/Remedial Action
RDT Regional Decision Team
RI Remedial Investigation
RI/FS Remedial Investigation/FeasibilIty Study
ROD Record of Decision
RODS Record of Decision System
RP Responsible Party
RPM Remedial Project Manager
RPO Regional Project Officer
RQ Reportable Quantity
RRT Regional Response Team
RSD Regional Support Division (OSRE)
RSE Removal Site Evaluation
RSI Removal Site Inspection
RTP Research Triangle Park, North Carolina

-------
S
SACM Superfund Accelerated Cleanup Model
SAM Site Assessment Manager
SAP Sampling and Analysis Plan
SARA Superfund Amendments and Reauthorization Act of 1986
SAS Special Analytical Services
SBA Small Business Administration
SBREFA Small Business Regulatory Enforcement Flexibility Act
SCA State Cooperative Agreement
SCAP Superfund Comprehensive Accomplishments Plan
SCORE$ Superfund Cost Organization and Recovery Enhancement System
SDWA Safe Drinking Water Act
SEE SenIor Environmental Employee
SEP Supplemental Environmental Project
SESS Superfund Enforcement Support Service
SETS Superfund Enforcement Tracking System
SF Superfund
SI Site Inspection
SMOA State Memorandum of Agreement
SNL Special Notice Letter
SOL Statute of Limitations
SOP Standard Operating Procedure
SOW Scope of Work
SOW Statement of Work
SREA Superfund Recycling Equity Act
SSC Superfund State Contract
SSI Screening Site Investigation
STARS Strategic Targeting Activities Reporting System
START Superfund Technical Assessment and Response Team
T
TAG Technical Assistance Grant
TAT Technical Assistance Team
TBC To Be Considered (Material)
1BD To Be Determined
TC lime-Critical (Removal)
TCLP ToxicIty Characteristic Leaching Procedure
TDD Technical Directive Document
TDD Telecommunications Device for the Deaf
1DM Technical Direction Memorandum
TIO Technology Innovation Office (OSWER) (now known as TIP)
TIP Technology Innovation Program (OSWER) (formerly known as TIO)
TRI Toxic Release Inventory
TSCA Toxic Substances Control Act
TSDF Treatment, Storage, and Disposal Fadlity
U
UAO Unilateral Administrative Order
UCC Uniform Commercial Code
USACE U.S. Army Corps of Engineers
U.S.C. U.S. Code
USCG U.S. Coast Guard

-------
U (continued)
USDA U.S. Department of Agriculture
USFWS U.S. Fish and Wildlife Service
USGS U.S. Geological Survey
UST Underground Storage Tank
w
WA Work Assignment
WACR Work Assignment Completion Report
WAF Work Assignment Form
WAM Work Assignment Manager
WasteLAN Waste Local Area Network

-------
M

-------
Glossary
AdmInistratIve A legal agreement signed by EPA and an individual, business, or other
Order on Consent entity through which the entity agrees to take an action, refrain from
(AOC): an activity, or pay certain costs. It describes the actions to be taken,
may be subject to a public comment period, applies to civil actions, and
can be enforced In court. AOCs are most commonly used for removal
actions and RI/FSs, but may be used for de minimis and cost recovery
settlements.
Administrative The body of documents that “forms the basis” for the selection of a
Record (AR): particular response at a site. For example, the AR for remedy selection
includes all documents that were “considered or relied upon” to select
the response action. An AR must be available at or near every site to
permit Interested individuals to review the documents and to allow
meaningful public participation in the remedy selection process. This
requirement does not apply to other AR5, such as those for deletion.
Administrative A command issued by EPA requiring testimony and, if necessary, the
Subpoena: production of documents deemed necessary to the administrative
investigation of a site. CERCLA section 122(e)(3)(B) authorizes the
Issuance of administrative subpoenas as is “necessary and appropriate”
to gather information to perform a non-binding preliminary allocation
of responsibility or “for otherwise Implementing CERCLA section 122.”
No legal mandate prohibits the use of an administrative subpoena as
an Initial information gathering tool; however, the Agency prefers using
104(e) requests before issuing administrative subpoenas.
Alternative A process that allows parties to resolve their disputes without litigating
Dispute them in court. ADR involves the use of neutral third parties to aid In
Resolution the resolution of disputes through methods that include arbitration,
(ADR): mediation, mini-trials, and fact finding.
Arbitrary and Characterization of a decision or action taken by an administrative
Capricious: agency or inferior court meaning willful and unreasonable action
without consideration or in disregard of facts or without determining
principle. Under CERCLA section 130(j)(2), a court ruling on a
challenge to a response action decision will apply the arbitrary and
capricious standard of review.
Arbitration: An alternative dispute resolution technique that involves the use of a
neutral third party to hear stipulated issues pursuant to procedures
specified by the parties. Depending upon the agreement of the parties
and any legal constraints against entering into binding arbitration, the
decision of the arbitrator may or may not be binding.

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Brownfields: In general, the term refers to real property, the expansion,
redevelopment, or reuse of which may be complicated by the presence
or potential presence of a hazardous substance, pollutant, or
contaminant. The term does not Include:
• a facility that is the subject of a planned or ongoing removal
action under CERCLA;
• a facility that is listed or proposed for listing on the National
Priorities Ust (NPL);
• a facility that Is the subject of a unilateral administrative order, a
court order, an order of consent or judicial consent decree that
has been issued to or entered Into by the parties under CERCLA,
the Solid Waste Disposal Act (SWDA), the Federal Water Pollution
Control Act (FWPCA), the Toxic Substances Control Act (TSCA), or
the Safe Drinking Water Act (SDWA);
• a facility that is subject to corrective action under SWDA section
3004(u) or 3008(h), and to which a corrective action permit or
order has been issued or modified to require the implementation
of corrective measures;
• a facility that is a land disposal unit with respect to which a
closure notification under Subtitle C of the SWDA has been
submitted, and closure requirements have been specified in a
closure plan or permit;
• a facility that Is subject to the Jurisdiction, custody, or control of a
department, agency, or instrumentality of the United States for
an Indian tribe;
• a portion of a facility at which there has been a release of
polychiorinated biphenyls (PCBs), and that is subject to
remediation under the TSCA; or
• a portion of a facility, for which portion, assistance for response
activity has been obtained under Subtitle I of SWDA from the
Leaking Underground Storage Tank Trust Fund established under
section 9508 of the Internal Revenue Code of 1986.
Cash-Out: A settlement that requires PRPS to provide up-front financing for a
portion of the response action, rather than performing the work
themselves. There are several types of cash-out settlement. A mixed-
funding cash-out settlement requires the settling PRP to provide a
substantial portion of the total response costs whereas a de minimis
cash-out settlement requires a minor portion of the response costs to
be paid by the settling PRPS.

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CERCLA 106(b) Petition by an entity, which has complied with a unilateral
Reimbursement administrative order, requesting reimbursement from EPA for
Petition: reasonable costs plus Interest of conducting a response action. A
person may be entitled to reimbursement If the person can establish
that he or she is not liable for response costs under CERCLA section
107(a) 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.
CERCLIS: The acronym for the Comprehensive Enforcement Response,
Compensation, and Liability Information System; a national
Information management system for the CERCLA program. CERCLIS
inventories and tracks releases, accomplishments, expenditures, and
planned actions at potential and actual Superfund sites.
Cleanup Actions taken to deal with a release or threatened release of a
Activities: hazardous substance that could affect humans or the environment.
The term “cleanup” is sometimes used Interchangeably with the terms
remedial action, removal action, response, or corrective action.
Comment Period: Period provided for public to review and comment on a proposed EPA
action, rulemaking, or settlement.
Community EPA’S program to Inform and encourage public participation In the
Relations Superfund process and to respond to community concerns and
(Involvement): incorporate them into the Agency decision-making process.
Community
Relations Lead Agency staff who works to involve and inform the public about the
(Involvement) Superfund process and deanup actions.
Coordinator (CRC
or dC):
Community A document that Identifies techniques used by EPA to communicate
Relations Plan effectively with the public during the Superfund cleanup process at a
(CRP): specific site. This plan describes the site history, the nature and
history of community involvement, and concerns expressed during
community interviews. Additionally, the plan outlines methodologies
and timing for continued interaction between the Agency and the public
atthe site.

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Consent Decree A legal document, approved by a judge, that formalizes an agreement
(CD): reached between EPA and one or more potentially responsible parties
(PRPs) outlining the terms under which that PRP(s) will conduct all or
part of a response action, pay past costs, cease or correct actions or
processes that are polluting the environment, or comply with
regulations where failure to comply caused EPA to initiate regulatory
enforcement actions. The CD describes the actions PRPs will take, is
subject to a public comment period prior to Its approval by a judge,
and is enforceable as a final judgment by a court.
Contribution: A legal principle according to which an entity can seek to recover some
of the response costs for which it has already resolved liability with the
United States. For example, when several PRPs are liable for a
hazardous substance release, EPA Is not required to pursue all of the
PRPs. If EPA settles with or wins Its case against a subset of PRPs,
then the right of contribution enables the PRPs (I.e., the settling PRPs
or those against whom a judgment is rendered) to seek recovery of a
proportional share from other PRPs who were not named as defendants
in EPA’S suit or settlement, but who nonetheless contributed to the
release.
Contribution A statutory provision that provides that any PRP who resolved Its
Protection: liability to the United States in an administrative or judicially approved
settlement is not liable to other PRPs for claims of contribution
regarding matters addressed in the settlement.
Cooperative Mechanism used by EPA to provide Fund money to states, political
Agreement (CA): subdivisions, or Indian tribes to conduct or support the conduct of
response activities. Subpart 0 of the NCP, 40 CFR Part 35, outlInes
specific response actions that may be conducted using CA funds.
Cost Recovery: A process by which the U.S. government seeks to recover money
previously expended in performing any response action from parties
liable under CERCLA section 107(a). Recoverable response costs
include both direct and indirect costs.
Covenant Not to A contractual agreement, such as those authorized by CERCLA section
Sue: 122(f) and embodied In a consent decree or administrative order on
consent, in which the Agency agrees not to sue settling PRP5 for
matters addressed in the settlement. EPA’s covenant not to sue is
given in exchange for the PRPs’ agreement to perform the response
action or to pay for cleanup by the Agency, and does not take effect
until PRPS have completed all actions required by the consent decree
and administrative order on consent.

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Covenant Not to Covenants not to sue are generally given in either consent decrees or
Sue (cont’d): administrative orders. Under CERCLA, the use of covenants not to sue
Is discretionary. In effect, the Agency Is authorized to agree to such a
release of future liability only If the terms of the covenant include
“reopeners.”
Declaratory A binding adjudication of rights and status of litigants. Within the
3udgment: context of CERCLA, the United States may file a claim seeking
declaratory judgment on liability for past and future response costs at
the site. If declaratory judgment on liability is granted, the United
States does not have to prove liability in any future action with the
defendant.
Defendant: A person against whom a claim or charge Is brought In a court of law.
Demand Letter: A written demand for recovery of costs Incurred under CERCLA. The
primary purposes of written demands are to formalize the demand for
payment of Incurred costs plus future expenditures, inform potential
defendants of the dollar amount of those costs, and establish that
interest begins to accrue on expenditures. A demand letter may be
incorporated Into the special notice letter.
De Micromis In general, a party shall not be liable under CERCLA section 107 If It
Exemption: can demonstrate that the total amount of the material containing
hazardous substances that It generated and arranged for disposal at,
or accepted for transport to, an NPL site was less than 110 gallons of
liquid materials or less than 200 pounds of solid materials, unless those
substances contributed significantly to the cost of the response action
or natural resource restoration with respect to the facility; or the party
has been uncooperative with EPA’s response actions at the sIte; or the
party has been convicted of a criminal violation for the conduct to
which the exemption would apply.
De Minimis PRP5 who are deemed by the settlement agreement to be responsible
Contributor: for only a mInor portion of the response costs at a particular facility. A
determination of a PRP’s responsibility is made based on the volume,
toxicity, or other hazardous effects in comparison with other wastes at
the facility. CERCLA section 122(g)(1)(A) expressly defines de minimis
contributor.
De I4inimis PRPs who are deemed by the settlement agreement to be past or
Landowner: present owners of the real property at which the facility Is located who
did not conduct or permit the generation, transportation, storage,
treatment or disposal of any hazardous substance at the facility, did
not contribute to the release or threat of release of a hazardous
substance at the facility through any act or omission, and had no

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De Minimis actual or constructive knowledge that the property was used for the
Landowner generation, transportation, storage, treatment, or disposal of any
(cont’d): hazardous substance at the time of purchase. CERCLA section
122(g)(1)(B) expressly defines de minimis landowner.
De t4inimis An agreement, either administrative or judicial, authorized by CERCLA
Settlement: section 122(g), between EPA and PRPs for a minor portion of response
costs.
De Novo: Generally, a new hearing or a hearing for the second time. At a de
novo hearing, the court hears the case as the court of original and not
appellate junsdiction. Under CERCLA, for example, a judge may hear a
case de novo if the administrative record is found to be Incomplete or
inaccurate. Such a hearing would allow judicial review that is not
limited to the admInistratIve record. A potential result of a de novo
trial could be the court selecting the remedy.
Discovery: A pre-trial procedure that enables parties to learn the relevant facts
about the case. The Federal Rules of Evidence provide for extremely
broad discovery. The basic tools of discovery are depositions,
interrogatories, and requests for production of documents. One of the
few limitations on the scope of discovery is that the material sought
must be relevant to the subject matter of the pending suit, or likely to
lead to the production of relevant material.
Easement: A right afforded to an entIty to make limited use of another’s real
property. An easement is one form of institutional control that may be
required at a Superfund site If all the hazardous substances cannot be
removed from the site. Easements may include limiting access or
control of surface activities.
Eminent Domain: The power to take private property for public use. Under the U.S.
Constitution, there must be just compensation paid to the owners of
this property. EPA exercises Its power of eminent domain through the
process of condemnation.
Enforcement EPA, state, or local legal actions to obtain compliance with
Actions: environmental iaws, rules, regulations, or agreements, or to obtain
penalties or criminal sanctions for violations.
Environmental The fair treatment of people of all races, Incomes, and cultures with
Justice (E3): respect to the development, implementation, and enforcement of
environmental laws, regulatIons, and policies. Fair treatment implies
that no person or group should shoulder a disproportionate share of
negative environmental Impacts resulting from the execution of
environmental programs.

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Explanation of A document regarding a significant change to the record of decision
Significant when new information is discovered about a site or difficulties are
Differences encountered during the remedial design/remedial action phase of
(ESD): cleanup. An ESD is appended to the administrative record to inform
the public of any significant changes that are being made to the
selected remedy.
Extraordinary Situations that justify the deletion of a standard reopener in a consent
Circumstances: decree. This release is granted infrequently and is given in response to
unusual conditions related to liability, viability, or physical
circumstances.
Federal Lien: A lien in favor of the United States authorized by CERCLA section
107(i) that may be imposed upon a PRP’s property subject to a
response action. The lien arises when the PRP receives written notice
of its potential liability for response costs under CERCLA, or the Agency
actually Incurs response costs at a particular site. The lien continues
until the PRP’s liability is fully satisfied or the claim becomes
unenforceable by operation of the statue of limitations.
Federal Register: A federal government publication that includes proposed regulations,
responses to public comments received regarding proposed
regulations, and final regulations. The Federal Register Is published
every working day by the Office of Federal Register, National Archives
and Records Administration, Washington, DC 20408. The Federal
Register publishes regulations and legal notices issued by federal
agencies. These include presidential proclamations and executive
orders, federal agency documents required by Congress to be
published, and other federal agency documents of public interest. The
Federal Register is available to the public through public libraries that
are federal depositories, law libraries, and large university libraries.
Force Majeure: A clause common to construction contracts which protects the parties
in the event that a portion of the contract cannot be performed due to
causes that are outside of the parties’ control (I.e., problems that could
not be avoided by the exercise of due care, such as an act of God).
These causes are known as force majeure events. Force majeure
provisions are included In administrative orders on consent and
consent decrees. These provisions stipulate that the PRP5 shall notify
EPA of any event that occurs that may delay or prevent work and that
is due to force majeure. Two examples of force majeure may be raised
as defenses to liability. CERCLA section 107(b) releases from liability
any person who can establish by a preponderance of the evidence that
the release or threat of release of a hazardous substance was caused
solely by an act of God or an act of war (i.e., force majeure.)

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Full Release: An agreement by EPA to release a PRP from any further lIability for
response costs. Under CERCLA section 122(j)(2), natural resource
trustees may grant full releases of liability for damages to natural
resources.
Fund (Hazardous A fund set up under CERCLA to help pay for cleanup of hazardous
Substance waste sites and for legal action to force cleanup actions on those
Superlund or responsible for the sites. The fund is financed primarily with a tax on
Superfund Trust crude oil and specified commercially used chemicals.
Fund):
General Notice A notice to Inform PRPs of their potential liability for past and future
Letter (GNL): response costs and the possible future use of CERCLA section 122(e)
special notice procedures and the subsequent moratorium and formal
negotiation period.
Generator: Any person who by contract, agreement, or otherwise arranged for
disposal or treatment, or arranged with a transporter for disposal or
treatment of hazardous substances owned or possessed by such a
person, by any other party or entity, at any facility or incineration
vessel owned or operated by another party or entity and containing
such hazardous substances.
Good Faith Offer A written proposal submitted by a PRP to the EPA to perform or pay for
(GFO): a response action. PRP5 are given 60 days from the special notice to
provide EPA a written GFO. The GFO must be specific, consistent with
the ROD or proposed plan, and indicate the PRPs’ technical, financial,
and management ability to Implement the remedy.
Hazard Ranking The principal screening tool used by EPA to evaluate risks to public
System (HRS): health and the environment associated with abandoned or uncontrolled
hazardous waste sites. The HRS calculates a score based on the
potential for hazardous substances spreading from the site through the
aIr, surface water, or ground water, and on other factors such as
nearby population. This score is the primary factor in deciding if the
site should be on the NPL and, if so, what ranking It should have
compared to other sites on the list. A site must score 28.5 or higher to
be placed on the NPL.
Indian Tribe: As defined by CERCLA section 101(36), any Indian tribe, band, nation,
or other organized group or community, Including any Alaska Native
village, but not including any Alaska Native regional or village
corporation, which is recognized as eligible for the special programs
and services provided by the United States to Indians because of their
status as Indians.

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Information Where the administrative record, current information, technical
Repository: reports, and reference materials regarding a Superfund site are stored.
EPA or the state establishes the repository in the community as soon
as a site is discovered. It provides the public with easily accessible
information. Repositories are established for all sites where cleanup
activities are expected to last for more than 45 days. Typical
community repository locations Include public libraries and municipal
offices.
Information Formal written requests for Information, authorized by CERCLA section
Request Letter: 104(e)(2)(A) through (C), issued during an administrative
investigation. EPA Is authorized to request information from any
person who has or may have information relevant to any of the
following:
• the kind and quantity of materials that have been or are being
generated, treated, disposed of, stored at, or transported to a
vessel or facility;
• the nature or extent of a release or threatened release of a
hazardous substance, pollutant, or contaminant at or from a
vessel or facility; and
• the ability of a person to pay for or perform a cleanup.
Failure to respond to or Incomplete response to an Informational
request is subject to statutory penalties.
Innocent A person who purchased or acquired real property without actual or
Landowner: constructive knowledge that the property was used for the generation,
transportation, storage, treatment, or disposal of any hazardous
substances. PRP5 may assert this claim as part of their defense, but
only the court may make this determination based on CERCLA sections
107(b) and 101(35).
Joint and Severai A legal doctrine defining the scope of a defendant’s liability. When
Liablilty: more than one PRP Is Involved at a site and the harm Is indivisible, the
court may impose joint and several liability upon all parties involved at
the site. In this Instance, each PRP Involved at the site may be held
individually liable for the cost of the entire response action.
Judicial Review: The court’s review of a decision rendered by a federal agency or
department or a court’s review of an appeal challenging either a finding
of fact or finding of law. Under CERCIA, for example, the court
provides judicial review prior to entry of the consent decree. In
addition, the court would provide judicial review of an EPA decision if a

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Judicial Review PRP submitted a petition to review” to a federai court of appeals. The
(Co nt’d) I jurisdiction of the court and the scope of its review are defined by
CERCLA section 113(h) and the Judicial Review Act, 28 U.S.C. § 2341-
2351.
Lead Agency: The agency that primarily plans and Implements cleanup actions. This
could be EPA, state, or political subdivisions, other federal agencies, or
Indian tribes. Other agencies may be extensively involved in the
process, but the lead agency directs and facilitates activities related to
a site, often including enforcement actions.
Mixed Funding: Settlements whereby EPA settles with fewer than all PRPs for less than
100 percent of the response costs. The settlement must provide a
substantial portion, greater that 50 percent of the total response costs,
and there must be viable non-settlers from which remaining response
costs may be pursued. The three types of mixed funding settlement
are preauthorizatlon, cash-out, and mixed work.
Mixed Work: A type of mixed funding settlement whereby EPA and the PRPs agree to
conduct discrete portions of the response action. Often EPA’s portion
of the work is paid for or performed by other PRPs as a result of
subsequent settlements or unilateral administrative orders.
Moratorium: The period of time after special notice letters are issued during which
the Fund will not be used to begin work at the site on the RI/FS or RA.
EPA also will not seek to compel PRP action at the site during the
moratorium.
Municipal Solid Waste material generated by a household; and waste material
Waste: generated by a commercIal, industrial, or institutional entity, to the
extent that the waste material:
• is essentially the same as waste normally generated by a
household;
• is collected and disposed of with other MSW as part of normal
MSW collection; and
• contains a relative quantity of hazardous substances no greater
than the relative quantity of hazardous substances contained in
waste generated by a typical single family household.

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NatIonal Oil and The NCP is the major framework regulation for the federal hazardous
Hazardous substances response program. The NCP sets forth procedures and
Substances standards for how EPA, other federal agencies, states, and private
Pollution parties respond under CERCLA to releases or threats of releases of
Contingency Plan hazardous substances, and under Clean Water Act section 311, as
(NCP): amended by the Oil Pollution Act of 1990, to discharges of oil.
Natural Land, fish, wildlife, air, water, ground water, drinking water supplies,
Resources: and other such resources belonging to, managed by, or controlled by
the United States, state or local government, any foreign government,
any Indian tribe, or any member of an Indian tribe.
Natural Resource Damages for injury or loss of natural resources as set forth In CERCLA
Damages: sections 107(1) and 111(b) and NCP section 300.615.
Non-BindIng
PrelImInary An allocation of the total cost of response among PRPs at a facility.
Allocation of CERCLA section 122(e)(3) allows EPA to provide NBAR5 to PRPS to
Responsibility facilitate settlement. An NBAR is not binding on the United States or
(NBAR): the PRP5 and cannot be admitted as evidence In court.
Orphan Share: A portion of cleanup costs that cannot be assessed to a PRP as a result
of either the PRP’s Insolvency or EPA’s Inability to Identify PRP(s).
Owner or Any person owning or operating a vessel or facility, or In the case of a
Operator: hazardous substance being accepted for transportation, the common or
contract carrier. It does not Include a unit of state or local government
that acquired ownership or control Involuntarily through bankruptcy,
tax delinquency, or abandonment.
Performance A guarantee given by a contractor that a work assignment will be
Bond: completed according to Its terms and within the agreed time.
Performance Provisions In consent decrees and administrative orders specifying
Standards: specific levels of performance that site activities must achieve; often
incorporated by reference Into the record decision. The inclusion of
such performance standards enables the Agency to assure measurable
levels of cleanup that provide the protection desired.
Person: An IndivIdual, firm, corporation, association, partnership, joint venture,
commercial entity, U.S. government, state, municipality, or any
Interstate body.
Plaintiff: A party who brings a legal action; the party who complains or sues In a
civil action and Is so named on the record.

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Potentially Any individual or entIty Including owners, operators, transporters, or
Responsible generators who may be liable under CERCLA section 107(a).
Party (PRP):
Preauthorization: A type of mixed fundIng settlement whereby EPA preauthorizes a claim
against the Fund by the PRPs for a portion of costs of conducting a
response action. Once the preauthorization agreement is finalized, the
PRPs conduct the response action, as outlined in settlement
agreement, petition non-settling PRPs for reimbursement, and, if
necessary, seek reimbursement from the Fund for the preauthorized
amount not received from non-settling PRPs.
Premium: A sum paid or agreed to be paid by a PRP to cover risks associated with
settlement. This sum represents an amount in addition to the cost of
the response action. For example, a premium may be part of an early
de mlnimls settlement due to potential Inaccuracy of total response
cost estimates or remedy failure.
Record of The official Agency document that explains which remedial cleanup
Decision (ROD): alternatives have been considered, the selected remedy, technical
background relative to the decision, and how the decision compiles
with the law.
Recalcitrant: A PRP that Is persistently uninterested in or refuses to reach settlement
or that falls to comply with a settlement or order.
Recusal: The voluntary or involuntary removal of a government official from any
involvement in a specific matter. Recusal is used to preserve the
ethical standards of public service. Recusal generally occurs when
there is an appearance of a conflict between governmental
responsibilities and private interest. Once a person is removed through
recusal, she cannot participate in any activity relating to the matter;
specifically, she cannot see any correspondence or participate in any
meetings or negotiations related to the issue.
Remand: A legal term used when a court sends a case back to either a lower
court or an administrative agency for further action. For example,
under CERCLA, if an administrative record is found to be incomplete or
Inaccurate, one option of the reviewing court is to remand the case to
EPA with instructions to compile an accurate and complete
administrative record.

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Remedial Action: A remedial action is one that Is “consistent with permanent remedy
taken Instead of or In addition to removal actions In the event of a
release or threatened release of a hazardous substance into the
environment.” Generally, response actions that take longer than a
non-time-critical removal and are more complex than removals.
Removal: A removal is “the clean up or removal of released hazardous
substances from the environment, such actions as may be necessary
taken in the event of the threat of release... [ and] such actions as may
be necessary to monitor, assess, and evaluate the release or threat of
release of hazardous substances...” Such evaluations Include RI/FS.
Removals are classified according to urgency as “emergency,” for those
requiring immediate response; “time-critical,” for those that take no
more than six months; and “non-time-critical” for removals that need
up to a year or more.
Reopeners: Contractual provisions that preserve the Agency’s right to compel the
PRP5 to undertake additional response actions or to pay costs for
Agency response actions In addition to those agreed to In the
settlement. Reopeners to liability are triggered when previously
unknown conditions at the site are discovered, or Information
previously unknown to EPA is received, that Indicates the remedial
action is not sufficiently protective. Reopener provisions restrict the
covenant not to sue by defining the conditions under which the
settlement may be re-examined.
Remedial Activities conducted at an NPL site by EPA, or a PRP acting under an
Investlgation/ administrative order on consent (AOC) or (rarely) a unilateral
Feasibility Study administrative order (UAO), to assess site conditions and evaluate
(RI/FS) : alternatives to the extent necessary to select a remedy, described in
the record of decision (ROD), that will clean up the site In accordance
with CERCLA section 121.
Remedial Response actions performed at an NPL site by EPA or a PRP under a
Design/Remedial consent decree (CD) approved and entered by a federal court. RD Is
Action (RD/RA): the engineered design of the remedy selected by the R1/FS; RA is the
construction and continuing operation and maintenance of the remedy.
Settlement: Resolution of a claim. Settlement occurs when a federal or state
agency has a written agreement with PRPs regarding payment for and
conduct of specified response actions. Settlements may be achieved
admInistratively through an administrative order on consent or
judicially through a consent decree.

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Special Account: A sub-account of the Fund In which cash-out settlement funds may be
deposited to segregate the funds and ensure that they are readily
accessible for work at the site covered by the settlement.
Special Master: A court-appointed individual who oversees the progress of a complex
case before It goes to trial. The scope of the special master’s authority
is set forth in an order of reference. Special masters are appointed
only under exceptional conditions. For example, special masters may
be appointed in cases requiring the Interpretation of complicated
technical data or voluminous information.
Special Notice A written notice to a PRP providing information on potential liability,
Letter (SNL): conditions of the negotiation moratorium, future response actions, and
demand for past costs. The SNL is authorized under CERCLA section
122(e)(1) and triggers the start of the negotiation moratorium.
Statute of The statutorily defined period of time within which the United States,
Limitations on behalf of EPA, must file a claim for cost recovery. If the United
(SOL): States does not file a case within the SOL, it may not be able to
recover its costs from the PRPs.
Stipulated Fixed sums of money that a defendant agrees to pay for violating the
Penalties: terms of a settlement. Procedures for invoking and appealing
stipulated penalties and penalty amounts are agreed to in the
administrative order on consent or the consent decrees.
Strict Liability: Legal responsibility for damages without regard to fault or diligence.
The strict liability concept in CERCLA means that the federal
government can hold PRPS liable without regard to a PRP’s fault,
diligence, negligence, or motive.
Transporter: A person who “accepts or accepted any hazardous substances for
transport for disposal” to any site selected by such person, “from which
there is a release or threatened release which causes the incurrence of
response costs, of a hazardous substance...”
WasteLAN: The acronym for Waste Local Area Network. For historical reasons,
EPA’S regions use it when referring to CERCLIS.

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N

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PRP Search Manual
September 2003
Chapter 1 References
Narn Section Location
Comprehensive Environmental 1.1 42 U.S.C. § 9601 et seq.
Response, Compensation, and http ://uscode. house.gov/DOWNLOAD/
Liability Act of 1980, as 42C103.DOC
amended by the Superfund
Amendments and
Reauthorization Act of 1986
National Oil and Hazardous 1.1.1 40 C.F,R. Part 300
Substances Pollution http ://www .access.gpo ,gov/nara/cfr/
Contingency Plan wais idx 02/4Ocfr300 02. html
Oil Pollution Act of 1990 1.1.1 33 U.S.C. § 2701 et seq.
http://www.epa .gov/oilspill/ lawsregs. htm
Clean Air Act 1.2.1 42 U.S.C. § 7401 et seq.
http://www.epa.gov/air/oaq caa.htrnl
Clean Water Act 1.2.1 33 U.S.C. § 1251 et seq.
http ://www.epa .gov/oilspill/lawsregs. htm
Toxic Substances Control Act 1.2.1 15 U.S.C. § 2601 et seq.
tittp ://www .access gpo .gov/uscode/
tltle15/chapter53 . ., html
Resource Conservation and 1.2.1 42 U.S.C. § 6901 et seq.
Recovery Act http ://www . epa. gov/epaoswer/osw/
laws-reg.htm
CERCLA Hazardous Substances 1.2.1 40 C.F.R. Part 302
http ://www .access. gpo.gov/nara/cfr/
waisidx 02f40ctr302 02.html
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PRP Search Manua
September 2003
Chapter 1 References
.Na : . • :• : . . . Location
Lomptrolier Policy 1.2.1 http://www.epa.gov/ocfo/finstaten entj
Announcement 87- 17, Interest superfund/intrate.htm
Rates for Debts Recoverable
Under the Superfund
Amendments and
Reauthorization Act of 1986
(September 30, 1986)
Small Business Liablitty Relief 1.2.5 Public Law 107 118 (H.R. 2869)
and Brownfields Revitalization
Act of 2002 hUp ://www. epa .gov/browrifieids/pdf/
hr2869. pdf
Internal Revenue Code of 1986 1.2.6 26 U.S.C.
http://www .access.gpo.gov/uscode/
uscmain.html
Interim Enforcement Discretion 1.2.6 http ://www epa .gov/compliance/
Policy Concerning “Windfall resourcesJpolicies/cleanup/superfund
Liens” Under Section 107(r) of
CERCLA (July 16, 2003)
Superfund Recycling Equity Act 1.2.6 42 U.S.C. § 9627
http ://www . access.gpo. gov/uscode/
uscmain.htrni
Used Oil Regulations 1,2.6 57 Federal Register 41,612
(September 10, 1992)
Federal Insecticide, Fungicide, 1.2.6 7 U.S.C. § 136 et seq.
and Rodenticide Act http ://www.epa.gov/opptsfrs/ home!
rules. htm
Chapter 1: Overview of CERCLA
40

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PRP Search Manual
September 2003
Chapter 1 References
Nam. S*ctlon Locatloe
Revised Settlement Policy and 1.2.7 http://www.epa.gov/comphance/
Contribution Waiver Language resources/policies/cleanup/superfund/
Regarding Exempt De Micromis wv-exmpt-dmicro-mem.pdf
and Non-Exempt De Micromis
Parties (November 6, 2002)
Interim Policy on CERCLA 1.2.7 Appendix A
Settlements Involving
Municipalities or Municipal
Wastes (December 12, 1989)
Policy for Municipality and 1.2.7 http://www.epa.gov/compliance/
Municipal Solid Waste CERCLA resources/policies/cleanup/superfund/
Settlements at NPL Co-Disposal munic-solwst-mem.pdf
Sites (February 3, 1998)
interim Guidance on the 1.2.7 http //www.epa.gov/compliance1
Municipal Solid Waste resources/policies/cleanup/superftind/
Exemption Under CE RCLA § interim- msw -exempt.pdf
107(p) (August 20, 2003)
Bona Fide Prospective 1.2.7 http://www.epa.gov/compliance/
Purchasers and the New resources/policies/cIeanup/superfur c1/
Amend ments bonf-pp-cercla-mem. pdf
(May 31, 2002)
Policy Toward Owners of 1.2.7 http://www.epa.gov/compliance/
Property Containing resources/pohcles/cteanup/ superfund/
Contaminated Aquifers contamin-aqui-rpt . pdf
(May 24, 1995) _________________
Chapter 1 Overview of CERCLA
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PRP Search Manual
September 2003
Chapter 1 References
S.ctløsi.. L caUo
Policy 1 owaras Owners of 1.2.7 http.//www.epa .guv/cornpliance/
Residential Property at resources/policies/cieanup/superfund/
Superfurid Sites pokcy-owner-rpt.pdf
Ouly 3, 1991)
Revised Final Guidance on 1.3.1 http://www.epa.gov/compliance/
Disseminating EPA ’s SBREFA resources/policies/civil/sbrefa/jndex.html
Information Sheet to
Businesses at the Time of
Enforcement Activity
(August 31, 1999)
Small Business Fact Sheet 1.3,1 http ;//www.epa.gov/compliarice/
incentives/smiillbusiness/index .html
Orphan Share Policy 1.3.2 http://www.epa.gov/compliancel
(June 3, 1996) resources/poiicies/c leanup/superfund/
orpha n-share-rpt. pdf
Superfund Removal Procedures 1.3.2 EPA Publication 936O.3 O6
Removal Enforcement http ://www .ritis.gov/products/
Guidance for On—Scene epasuper. htm
Coordinators (April 1992)
Enforcement Project 1.3.3 http ://intranet.epa .gov/oecaJosre/hbk-
Management Handbook pdf/index. html
Addendum to the Interim 1.3.3 http://www.epa.gov/comp llance/
CERCLA Settlement Policy resources/policies/cleanup/superfund/
Issued on December S, 1984 adden-settle-mem.pdf
(September 30, 1997)
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Seotember 2003
Chapter 2 Refernnces
Applicable or Relevant and
Appropriate Requirements (ARARs)
List of Regional COs and POs
Environmental Programs
Assistance Act (June 12, 1984)
Title V of the Older Americans Act
Superfund Reforms Home Page
(June 1993, February 1995, and
October 1995)
Releasing Information to PRPs at
CERCLA Sites
(March 1, 1990)
Issuance of Interim Rule:
Disclosure of Confidential Data to
Authorized Representatives of the
United States and Potentially
Responsible Parties
(January 5, 1993)
Revised Final Guidance on
Disseminating EPA ’s SBRFFA
Information Sheet to Businesses at
the Time of Enforcement Activity
( August31, 1999 )
http ://www.epa.gov/superfund/action/
guidance/remedy/arars. htm
2.1.1 Appendix B
2.1.1 http ://www.epa.gov/epahrist/see/
brochure/law. htm
2.1.1 42 U.S.C. § 3056 et seq.
http ://wdsc,doleta .govlseniors/
other docs/owp4O6-501 .pdf
2.1.2 http ://www.epa.gov/superfund/programs
/reforms
2.1.2 http //www epa .gov/compliance/
resources/policies/clean up/superfundf
release prp rpt.pdf
2.1.2 http ://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
iss-confdata-mem .pdf
2.1.2 http ://www.epa.gov/compliance/
resources/ policies/civil/sbrefa/lndex . html
2.0
Chapter 2 PRP Search Planning
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September 2003
Chapter 2 References
Privacy Act
40 CFR Part 2, Subpart B (CBI)
Sample Information Request Letter
Questions
Documentation of Reason(s) for
Not Issuing CERCLA 1O6 UAOs to
AU Identified PRPs
(August 2, 1996)
Enforcement Project Management
Handbook
National Oil and Hazardous
Substances Pollution Contingency
Plan
Multi-site Open Work Assignment
(expedited work assignment)
Checklist for Removal/
Pre-remedial Sites
2.1.2
2 .1.2
2.1.2
2.1.2
2.3
2.3.1
2.3.1
2.3.1
5 U.S.C. § 552 et seq.
http ;//www .access.gpo.gov/uscode/
title5/parti_chapter5_. html
40 C.F,R. Part 2
http ://www .access.gpo.gov/nara/cfr/
cf rhtmL 00/Title 4 0/4Ocf r2 00, html
http :1/i ntra net. epa. gov/oeca/osre/docs/
html
http //www.epa gov/cornpliance/
resources/policies/c;eanup/superfund/
reason-cerlO6-rpt. pdf
http :f/intranet.epa .gov/oeca/osre/hbk-
pdf/index. html
40 C.F.R. Part 300
http :f/www .access.gpo.gov/nara/cfr/
waisldx 02/40cfr30002.html
Appendix C
Appendix D
Chapter 2 PRP Search Planning
95
Small Business Fact Sheet 2.1,2
http :J/www .epa.gov/compliance/
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Chapter 2 References ___IIIJ
Revised Policy on Discretionary 2.4 Appendix E
Information Release Under
CE RC LA
(March 31, 1993)
24
Quick Reference Guide for Using 2.5.2
CERCLIS/WasteLAN
5 U.S.C. § 557 et seq.
http ://www .epa.gov/foiafgwde html
Appendix F
Chapter 2 PRP Search Planning
96
Freedom of Information Act
(Reference Guide)

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PRP Search Manual
September 2003
CHAPTER 3 REFERENCES
Name - Section - Location - —
Checklist of PRP Search Tasks 30 Appendix G
Enforcement Project 3.2 http://intranet.epa .gov/oeca/osre/hbk
Management Handbook pdf/index.html
PRP Search Enhancement learn 17 1 Appendix H
Mernber /Contacts
Transmittal of Sample 3.3 http://www.epa.gov/comphance/
Documents for More Effeclive resources/policies/cleanup/superfund/
Communication in CERCLA sampledoc-cercla-mem.pdf
Section 104(e)(2) Information
Requests
(June 30, 1995)
Disk Repository of Current 3,3 http://intranet.epa.gov/oeca/osre/doç’
CERCLA Section 104(e) 9602 29.htm l
Questions
On-Line Sources of PRP Information 3.3.1 Appendix I
Superfund Enforcement Directory 3.3.1 Appendix J
False Statements Act 3.3.1 http ://www.access.gpo.gov/uscode/
title l8/partLchapter47_ . html
Federal Debt Collection 3.3.1 http ://www.access.gpo.gov/uscode/
Procedures Act title28/partvi .chapterl 76 . html
Releasing Information to 3.3.1 http ://www.epa.gov/compliance/
Potentially Responsible Parties at resources/policies/cleanup/superfund/
CERCLA Sites (March 1, 1990) release-prp-rpt.pdf
EPA Regulations Governing 3.3.3 http:J/www.access.gpo.gov/nara/rfr/
Business Confidentiality Claims, waisidx U1/4Ocfr2 01 html
40 C.F.R. 2 201-2,21L -—
Chapter 3 Baseline PRP Search
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CHAPTER 3 REFERENCES
Name Section Location
Federal Rules of 3.4.1 http ://www.access.gpo.gov/uscode/
Evidence 801-817 title28a/28a . . 5_. html
F:ederal Perjury Statute, 18 3.4.2 http ://www.accessgpo.gov/uscode/
U.S.C. 121 titlei8/parti chapter79 html
Final Guidance on Preparing 3.8 http://www.epa.gov/compliance/
Waste-In Lists and Volumetric resources/policies/clea nup/superfund/
Rankings for Release to guide-volumet-rpt.pdf
Potentially Responsible Parties
(PRPs) Under CERCLA
(February 22, 1991)
Streamlined Approach for 3.8 http : //www epa .qov/cornpliance/
Settlements With De Minirnis resources/policies/cleanup/superfund/
Waste Contributors Under app-deminImis rpt .pdf
CERCLA Section 122(g)(1)(A)
(July 30, 1993)
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CHAPTER 4 REFERENCES
Name - Section Location —
Disk Repository of Current CERCLA 4.1 http://intranet.epa.gov/oeca/osre/
Section 1 .04(e) Questions dod 960229.html
(June 17, 1999)
Model Administrative Order for 4.2 http //wwwepa. gov/cornpliance/
CERCLA Information Requests resources/policies/cleanup/superfurid/
(September 30, 1994) modao -cerinf-rnem.pdf
Civil Monetary Penalty Inflation Rule 4.2 http://www.epa.gov/compliance/
(December 31, 1996) resources/policies/civil/penalty/
cmpia r. html
Final Model Utigation Report and 4.2 http : //intranet epa ,gov/oeca/osre/
Complaint for CERCLA Section 104(e) docs.html
Initiative (lanuary 1990)
Recommendations Concerning the Use 4.3 http : //www.epa gov/compliance/
and Issuance of Administrative resources/policies/cleanup/superfu nd/
Subpoenas under CERCLA Section 122 subpoena-cercla-mem.pdf
(August 30, 1991)
Guidance on Use and Enforcement of 4.3 http://www.epa.gov/compliance/
CERCLA Information Requests and resources/policies/cleanup/superfund/
Administrative Subpoenas cerc - inf req - mem .pdf
(August 25, 1988)
Federal Rules of Civil Procedure, Rule 4.4 http://www.wvnb.uscourts.gov/
27, 28 U.S.C frcp.htm#rule27
General Policy on Superfund Ability to 4.5.1 http://www.epa.govJcompliance/
Pay Determinations resources/policies/cleanu p/superfund/
(September 30, 1997) genpol-atp-rpt .pdf
Index of OECA enforcement computer 4.5.2 http://www.epa.gov/compliance/civil/
models and user manuals programs/econmodels/index.html
Chapter 4: FollowLip PRP Search
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CHAPTER 4 REFERENCES
Name Section Location
Finandal Statements for Individuals, 4.5.2 Appendix K
Businesses, and Trusts
EDGAR 4.5.2 http://www,sec .gov/edgar.shtml
On-Line Sources of PRP Information 4.5.2 Appendix I
Interim Enforcement Discretion Policy 4.5,3 http://www.epa.gov/compliancej
Concerning “Windfall Liens” Under resources/poltcies/cleanup/superfund/
Section 107(r) of CERCLA interim-windfall-hen. pdf
(July 16, 2003)
Interim Guidance on Orphan Share 4.6.1 http://www.epa.gov/compliance/
Compensation for Settlors of Remedial resources/policies/cleanup/superlund/
Design/Remedial Action and Non- orphan-share- rpt. pdf
Time-Critical Removals (June 4, 1996)
Addendum to the Interim CERCLA 4.6.1 http://www.epa.gov/compliance/
Settlement Policy issued on resourcesfpolic ies/cleanup/super fund/
December 5, 1984 adden -settle mem . pdf
(September 30, 199?)
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