Supplement to
Litigating
Civil Penalties:
Guidance on Use and
Enforcement of
CERCLA Information
Request and
Administrative
Subpoenas

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,I
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
4(
S 25
0 f ‘ ‘
* o
COMe . SIOP ITO’.P.
MEMO RAND U N
SUBJECT: Transmittal of Guidance on Use and Enforcement of
CERCLA Information Requests and Administrative
Subpoenas
FROM: Thomas L...Adams , .
Assistant Administrator
TO: Regional Administrators, Regions I - X
Regional Counsel, Regions I - X
Directors, Waste Management Divisions, Regions I — X
With this memorandum, I am transmitting guidance on the use
and enforcement of EPA’S information gathering authorities under
CERCLA SS 104(e) and 122(e)(3)(B). The attached guidance
document replaces existing guidance entitled, “Policy on
Enforcing Information Requests ir Hazardous Waste Cases,” dated
September 10, 1984, to the extent that the earlier guidance
addressed information gathering under CERCLA Sl04(e).
Attachment
cc: Bruce Diamond, Director, Office of Waste Programs
Enforcement
Lloyd Guerci, Director, CERCLA Enforcement Division,
Office of Waste Programs Enforcement
Frank Russo, Chief, Compliance Branch, Office of waste
Programs Enforcement
Robert J. Mason, Acting Chief, Guidance and Oversight
Branch, Office of Waste Programs Enforcement
Lisa I. Friedman, Associate General Counsel, Office of
General CounseL -
David Buente, Chief, Environmental Enforcement Section,
Department of Justice
Nancy Firestone, Deputy Chief, Environmental Enforcement
Section, Department of Justice
Office of Regional Counsel Hazardous Waste Branch Chiefs,
Regions - X
Clem Rasta . Executive Assistant, Office of Emergency arid
Remedial esponse

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Guidance on Use and Enforcement ,of CERCLA,
Information Requests iand Ad ii1 iFrative Subpoenas

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t 1
GUIDANCE ON USE AND ENFORCEMENT OF CERCLINFOR1. TION.REQUESTS
AND ADMINISTRATIVE SUBPOENAS ‘ - ‘ ‘ 7
TABLE OF CONTENTS
I. INIIIRCDUCTIOII I
I I . BACKGROTJTTD • 2
A. Prior Information—Gathering Authorities 2
B. Administrative Information-Gathering Distinguish ed from
Discovery 3
III.DELEGATED AUTHORITIES TO USE INTORZ TION-GATHERING TOOLS.. 6
IV. SCOPE AND TIMING OF INFOR1 TION-GATHERING PROCEDURES. 7
A. Info rmat ion Reqtiest s . . . • • . . . . • • . . -. . . . 7
B. Administrative Subpoenas.. .... 12
V. SERVICE OF INFORZ’ TION REQUESTS AND SUBPOENAS. ..... 13
VI. GENERAL DUE PROCESS CONSIDERATIONS IN INESTIrAr’V
PROCEEDINGS PURSUANT TO AN ADMINIsTRATIVE:sUBPOENA.;;... 14
A. Agency Adjudications :14
3. Rd1è ó Witness’ Counsel atAdministrative Su áéi{á
Proceedings. - . — - .. . — ... ._._.,., .. . . 15
VII. EF0RCEMEN’r OF INFORMATION REQUESTS AND SUBPOENAS. .. 16
A. Information Reqi.iests 16
1. Iv itial Steps...... •. . . . . . . . . . . . • . 16
2. Administrative Orders to Compel Compliance 17
3. Civil:ActiOflS to Compel Compliance ....... 18
4.ScopeofJudicia lReview 20
5. Penalties... 21
B. Subpoenas...... 23
1. Jurisdiction and Venue 23
2. Procedures for Enforcing Subpoenas 24
C. Referrals . 25
VI I I . DI SCLAI!IER . 26

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iO SPa
UNITED STATES ENVIRONMENTAL PRbTEcrIoN AGENCY,
WASHINGTON. D.C. 20460
4( ..OIIG
*.E 2 5 1988 -
- - *,,r
MEMORANDUM
SUBJECT: Guidance on Use and Enforcement of CERCLA
Information Requests and Administrative Subpoenas
FROM: Thomas L. Adams, Jr.
Assistant Administrator - -- -
TO: Regional Administrators 1 :Regions I-
Regional Counsel, Regions I — X -
Directors, Waste-Management D] hsion ; Regions I - x
I. INTRODUCTION
The Comprehensive Envirbn éi tal Response, Compensat ion, anc
1C i
Liability Act;ôf:1980 -(CERCLA)Ias amended-b the Su erfund
Amer dments and Reauthorization Act of -1986 (SARA), & idés EPA
with several methods of obtaining various types of information
from a wide range of entities . Section 104(e), entitled
“In orz ation Gathering and Access,” grants EPA theauthority to
issue “information requests.” Section 122(e)(3)(B), entitled,
“Collection of Information,” authorizes the use of
administrative subpoenas. These information-gathering tools and
enforcement powers represent a significant improvement in EPA’S
1 This guidance focuses solely on information.
gathering in the context of civil enforcement. In
instances where a criminal enforcement action is contemplated or
pending, Regional personnel should consult with OECM - Office of
Criminal Enforcement, before proceeding with informa:.ion
gathering under CERCLA.

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ability to obtain information. A full exercise of these
authorities, including taking enforcement action when necessary,
can aid considerably in the implementation of CERCLA, and the
attainment of statutorily mandated goals. -
This guidance 2 serves two purposes: 1 it gives an overview
of the information-gathering tools under CERCLA 5S104(e) and
122(e)(3)(B), and 2) it focuses on the steps to be taken
throughout the information-gathering process to ensure that EPA
is in the strongest possible position to enforce an information
request or subpoena, if necessary.,
I I. BACKGROUND -
A. Prior Information-Gathering Authorities
Prior to the enactment of SARA, .informationregarding.?s
hazardous waste sites was gathere4prariiy.under ithe pre SARA
provisions of CERCLA SlOe) and RCR 530 1 Section 1O4(e)(5),
autnorizing aaministrative orQers, civil actions and penalties
of up to $25,000 for each day of noncompliance, now eli- ates
the need to incorporate RCRA 53007 solely for enforcement
purposes. However, in appropriate circumstances where RCRA
information gathering authorities are applicable, Regions may
2 mis guidance replaces existing guidance entitled,
“Policy on Enforcing Information Requests in
Hazardous Waste Cases,” dated September 10, 19R4, to the extent
that the previous guidance addressed information gathering under
CERCLA S104(e). -
CERCLA 5109(a)(5), as amended, also authorizes EPA
to r - alininistrative subpoenas “in conjunction with
hearings” on Class I administrative penalties. This guidance
does not specifically address the use of administrative
subpoenas in that context.

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still consider citing 53007 since.RCRAzprovides..the:optjón f
enforcement in a proceeding before an administrative :law judge. 4
The administrative subpoena authority in CERCLA S122 is new
to CERCLA. However, it is similar to the authority co ntàined in
Sl1(c) of the Toxic Substances Control Act (TSCA), 15 U.S.C.
2610(c).
B. Administrative Information-Gatherina Distinguished from
Discovery
As an initial matter, adistinction must be drawn between
an investigation conducted by an administrative agency Such as
EPA and the information-gathering that commonly takes place
during the discovery phase of a civil action. An administrative
investigation is related in some way to implementation of an
agency’s sta ütoryrespoxi lb1flties. The manner and extent of
the in esti ations are prescribe dby the authorizing statute.
Such an’iñvestigation may u]tTimáteiy lead to the filing of a
civil action, (at which time boUt parties may b allowed -
discovery), or it may simply’ be related to an agency’s ongoing
oversight activities.
4 More extensive guidance on information-gathering
under RCRA S3007 may be found in the guidance,
“Policy on Enforcing Information Requests in Hazardous Waste
Cases,” OI , September 10, 1984.
The use of TSCA SIl(c) subpoena authority was -
recently upheld by the Ninth Circuit in
Alveska Pipeline Serv. Co. , 836 F.2d 443, 446—48 (9th Cir..i
1988). In that case, the Court upheld the use of a TSCA
subpoena to gather information relevant to a lawful inquiry
under TSCA. ev - ‘ugh the Court recognized that other
environmental s:...:u es, specifically the Clean Water ACt,EITtay
later prove to be a more appropriate means of addressing’thè
environmental problem under investigation. - -

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Discovery, on the other hand, is Conducted after an action
is filed in court. The Federal Rules of Civil Proceduré overn
the manner and scope of this type of information-gathering. Ô
During the course of both an administrative investig’átion
and discovery, a party may be required to provide oral testimony
or produce documents. However, the information-gathering
tools used in an administrative investigation, and discussed in
this guidance, are not the legal or functional equivalents of
the more familiar interrogatory, deposition or request for
production of documehts. 8
6 Nonetheless the Agency is riot precluded from using
its administrative information gathering authority
once a civil action is commenced. In re Stanley Plating Co..
Inc. , 637 F. Supp. jl .(D. Conn.l986),Uni ted Statesv Browning
- Ferris Chemical Services. et p1. , No. 87-317-B (M.D.,La.-,,
November 16, 1987).
It should be noted that since there is_no
opportunity for cross-examination, testimony
obtained by administrative subpoena might not be admissible at
trial. If the Agency wishes to preserve a respondent’s
testimony for trial, rather than use it only to develop other
admissible evidence, two options are available. First, when it
becomes clear that the testimony is necessary for trial, the
respondent’s deposition can be taken in the usual course of,-.
discovery. Alternatively, if the Agency expects to bring an
enforcement action and it is not likely that the respondent will
be available later during the discovery phase of the case, it
may be possible to preserve a witness’ testimony pursuant to
Fed.R.Civ.P. 27 either in lieu of issuing an administrative
subpoena, or following the issuance of a subpoena.
Petition of Gary Constr.. Inc. , 96 F.R.D. 432, 433 (D.Colo.
1983), Ash v. Cart , 51 F. 2d 909, 911—913 (3d Cir. 1975), In re
Boland , 79 F.R.D. 665, 667 (D.L.C. l9’8;, Petition of Benjamin ,
52 F.R.D. 407 (E.D. La. 1971).
8 The Notes of the Advisory Committee on the Federal
Rules of Civil Procedure explicitly state that the
provisions of Fed.R.Cjv.P. 45 (subpoenas) do not apply to -
administrative subpoenas. Other Rules are less explicit but..are
(continued...)

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In T.T .A. V. Morton Salt Co . , 338 U.S. 632, 642—643 (195o)
the supreme Court described the difference between
administrative investigatory power and a court’s adjudicatory
power in the following manner:
The only power that is involved here is the power to
get information from those who can best give it and
who are most interested in not doing so. Because
judicial power is reluctant if not unable to swnmon
evidence until it is shown to be relevant to issues
in litigation, it does not follow that an administrative
agency charged with seeing that the laws are enforced
may not have and exercise powers of original inquiry.
It has a power of inquisition, if one choOses tocail
it that, which is not derived from the judicial -
function. It Is more analogous to the Grand Jury,
which does not depend on a case or controversy t6F
power to get evidence b t C vetit jiejely Qn .
that the law is being violated, or even -
just because -it wants assurance that it is !lot.
Lirnitatib is’on this information seeking power do ë iit.
However; the limitations themselves are narrow in scOpe.
Of course a governmental investigation.., maybe of
such a sweeping nature and so unrelated to the matter
properly under inquiry as to exceed the investigatory
- power... But it is sufficient if the inquiry is -
within the authority of the agency, the demand is not
too indefinite and the information sought is
reasonably relevant. Id . at 652 (citations omitted)
Thus, there are three basic parameters which are relevant to a
request for information or an administrative subpoena. It must
be:
8 (...continued)
also, by their terms, inapplicable. For example, Fed.R.Civ.P.
26 (General Provisions Governing Discovery) contemplates an
ongoing oversight role of the court. In administrative
information gathering, the court has no role unless specifically
petitioned by the government to enforce a subpoena or -.
information request. Belle Fourche Pipeline Co. v. U.S. ,
751. F.2d 332, 334 (10th Cir. 1984), citing Reisman V. Caplin ,
375 U.S. 440, 84 S.Ct. 508, 11 L.Ed.2d 459 ( 964).

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1. Within the underlying statutory authority of the agency;
2. Sufficiently definite/specifSc;
3. Reasonably relevant to the agency’s basic inquiry.
In addition, it should be noted that courts may also consider
whether a request is unduly burdensome.. 9
III. DELEGATED AUTHORITY TO USE INFOR?’ TION GATHERING TOOLS
On January 23, 1987, the President signed Executive Order
12580 delegating information-gathering authority in .SS -104(e)
and 122 to the Administrator of EPA. 10 This authority was, in
turn, delegated from the Administrator to the Assistant
Administrator for Solid Waste and Emergency Responäe, the
Assistant Administrator for Enforcement and Compliance
Monitoring and the Regional Administrátors b De3 gaioT’ 14-6,
“Inspections, Sampling, -Information Gathering, çSubpoenas and
Entry for Response,” signed on Sept e eri3 l987.
Under Delega tion 14-6, the authority of the Regional
Administrator and the Assistant Administrator for Solid Waste
and Emergency Response to issue compliance orders or subk. nas
is limited by the requirement that they first consult with the
Assistant Administrator for Enforcement and Compliance
See, e.g., F.T.C. v. Texaco , 555 F.2d 862, 882 (D.C.
Cir. 1977), where the court stated, -
the question is whether the demand i .icl .ily
burdensome or unreasonably broad. Some burden on
subpoenaed parties is to be expected and is
necessary in furtherance of the agency’s..legitimate
inquiry and the public interest.
10 The Administrator’s authority, however, is limited
with regard to federal facilities. (See Sections
3(j)(1) and 3(b)(1) of Executive Order 12580.)

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Monitoring or his/her designee. On November 19, 1987, the
Assistant A inistrator for Enforcement and Compliance
Monitoring redelegated his consultation authority under
Delegation 14-6 to the Associate Enforcement Counsel for Waste.
IV. SCOPE AND TIMING OF INTORI9TION GAThERING PROCEDURES
- A. Information Reauests
The scope of investigation authorized by CERCLA Sl04(e)
is broad. CERCLA S104(e)(2), as amended by SARA, provides:
Any (duly authorized] officer, employee, or represen-
tative (of the President]... may require any Derson
who has or may have information relevant to any of
the following to furnish, upon reasonable notice,
information or documents relating to such matter:
(A) The identification, nature, andquantity of . 1
materials which have been or are generated, treated,
stored, or disposed of at a vessel or facility 1 or
transported toa:vessel:or-facility. I
(B) The nature or extent of a release or thr eatened
release of a hazardoussubstancebr pollutant br
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.
In addition, upon reasonable notice, such perso-
either (i) shall grant any such officer, emplo , or
representative access at all reasonable times to any
vessel, facility, establishment, place, property, or
location to inspect and copy all documents or records
relating to such matters or (ii) shall copy and
furnish to the officer, employee, or representative
all such documents or records at the option and expense
of such person. (Eznphas is added.)
Section 104(e)(l) provides:
The authority of this subsection may be exercised
only for the purposes of determining the need for
response, or choosing or taking any response action
under this title, or otherwise enforcing the
provisir -- . this title . (Emphasis added.)

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Initial attempts to gather information about a given Site
commonly viii be through the use of information requests issued
under CERCLA S104(e). While an information request maybe sent
in advance of a general notice letter, as a component of the
general notice letter, or after the general notice letter,- as
needed, an effort should be made to issue initial information
- requests earlier rather than later in the PRP Search process to
aid in the process of establishing liability and clarifying the
universe of PRPs. Initial information requests typica1iy shou
eek the following types of information: -
-relatTioñship of the P P to the site)
-business records relating to the site, including,
but -not P-limited to, manifests, invoices, and -record
books; - -
- -any. data or;xeports regarding ‘environmental.rnonjtar jng
of environmental- investigations at:the i e;
-descriptions and quantitIes o’fhazardous substances
transported to, or stored, treated or disposed at
the site;
-any arrangements made to transport waste material to
tile site;
-names of any transporters used in connection with
the site; -
—where financial viability is or will be at issue, arid
the Agency is unable to assess financial viability
•ffect ively through review of pu.b]ic ly available
For c.Irs.her information on notice letters, their
tim...., and content, see “Interim Guidance on Notice
Letters, Negotiations and Information Exchange,” 53 Fed. Reg.
5298 (Feb. 23, 1988).

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data, 12 information relating to ability to pay forôr
perform a cleanup; 13,
‘di z izio.ncia1 viability is or Will be at issue,
information requests regarding insurance coverage should strike
a balance between the need to make an initial determination
about the extent of an insured’s coverage and the need to avoid
requiring an insured to construe the coverage of its policies.
If a request is overly specific, and a party (the insured) fails
to identify insurance that may afford coverage regardinga
response action, the. insurer may attempt to use that failure to
identify the policy’in the information request to avoid payment
12 The ability to obtain financial :information about a
- - PRP from a source other than the PRP itself is
limited by the Right to Financial Privacy Act, l2 U.S.C. 3401,
which limits Government access to a customer’s -
financial records at a financial -institution, ina c ordance with
the ptoviáions of the Act. - In most cases, it i1l not be
necessary to seek information about a PRP’s assets from a - -
financial institution. That information can be obtained from a
PRP as a condition of negotiation if the PRP raises ability to
pay as an issue. If circumstances arise where a Region believes
that it is necessary to obtain information from a financial
institution, it should first consult with Headquarters.
13 Under CERCLA S104(e)(2)(c), EPA now has explicit
authority to request information relating to the
ability of a person to pay for or perform a cleanup. Before it
was amended, CERCLA Sl04 authorized EPA simply to obtain
“information relating to (hazardous] substances.” EPA typically
construed this language to include all information that EPA
considered relevant to iiy aspect of enforcement. In U.S. v.
Charles Georae Truckina Co. , 624 F. Supp. 1185 (D. Mass.), aff’d
other grounds , 823 F.2d 685 (1st cir 1987), the court took
issue with EPA’S broad interpretation of “information relating
to (hazardous] substances” and denied EPA’S request for
information relating to a defendant’s ability to pay for or
perform a cleanup. The court held that information about assets
and insurance coverage “in no way informs EPA about the
hazardous substances involved.” 624 F. Supp. at 1188. This -
decision is no longer supported in light of CERCLA Sl04(e)(2)(c)

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under the licy. Failure to identify the po].icy:jn a-response
to an inforiiation request may tend to show that the insured did
not intend to address that type of liability with the policy in
issue. Such su.bjective intent is often critical in litigation
over the extent of coverage of insurance policies. -The ultimate
result might be that potentially fewer funds would be available
for a response action, and the potential for settlement
diminished. -
- Hence, requests for information about insurance_policies
shouicl e as neutrai. as pOSSlbi!. Ratflerthan.seeking
information about discrete periods of time during which i t is
suspected that a given party may be active at :a it j Ui 9
information request should cover the period from the flrj known
in anc e of waste disposal to the presen Terms s ich 1 as 9 -
“pollution exclusion,” “sudden,” “non-sudden,” pr.”accidental”
should be avoided and the insured should not be asked to.state
whether its insurance contains such exclusions or coverage.---
I tead, the information request should simply ask the insured
to provide a list of all property and casualty insurance ;(e.g.
comprehensive general liability, environmental impairment and
automobil• liability insurance) and to specify the insurer,
policy, effective dates, and per occurrence pour ’: tinits for
each policy. In this way, the P gency obtains the information it
needs to make an initial determination about insurance coverage,
and the insured has not compromised any potential iflsuraflce
coverage should it ultimately be liable for any response costs.

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In the alternative; the insured may always be given the option
of providing copies of the policies themselves. A similar,
general request about directors’ and officers’ insurance.may
also be made in situations where personal liability of a.
corporation’s directors or officers is or will be at issue.
Information requests should include a brief identification
and description of the site, a citation to the statutory.
authority, and a general statement setting forth the purpose of
the request nd itsrelation to the overall case. An
information request should also state the date by which the
recipiei t must respond or adequately justify his inability to
respond. This due da e should reasonably reflect the ype. and
.volüine of infàrmatibn hat the agency anticipates wii i, be .
respons1v e to-the reqüest Thirty.days is usually adequate. I C
addition; the informatión request should state that the
respondent may have an opportunity for consultation with the
Agency, and that failure to respond may give rise to a p. lty.
An information request should also require the recipient to
indicati the types of files searched in response to the request.
and ask the recipient to submit an affidavit describing his
search efforts if the search does not disclose any of the -
information sought. 14
14 Previous guidance, “Policy on Enforcing Information
Requests in Hazardous Waste Cases”, September 10;
1984, suggested that an affidavit be requested in a second,
“reminder” letter. However, by including an affidavit request
with a request for a descript.on of the types of files searched
in the initial information r uest, one can more quickly
(continued...)

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A model information request, largely de”iiloped by Region I,
s attached as Attachment 1.
B. Administrative Subpoenas
Section 122(e)(3)(B) gives EPA the power to issue
administrative subpoenas requiring th mony
of witnesses (referred to as a subpoena gtestificandwn ) and
the production of documents (referred to as a subpoena duces
tecum). Such subpoenas may be issued as is “necessary and
appropriate” for performing a non-bindin réIiniinary allocation
of responsibility .(NBAR) “or:for- ótherwiseirnp1ernenting” CERCLA
Section 122. - -
Since the language of S122 is broad and ermits the use of
administrative subpoenas. “for: otherwièe ‘implementing [ Section
V
122],” there iS no:req irement .th t’EPA fir e ide to prepare
an NBAR before issuing an administra€ive subpóena or that the
information gathered by an administrative subpó ena be used only
for an NBAR. 15 Instead, an administrative subpoena ma .e used
l4( .continued)
1984, suggested that an affidavit be requested in a second,
“reminder” letter. However, by including an.affidavit request
with a request for a description of the types of files searched
in the initial information request, one can more quickly
determine which information requests should be followed up with
an enforcement action. -
15 Nonetheless, the factors that may be considered when
preparing an NBAR are a useful outline of the types
of information that may be reached, at a minimum, with an
administrative subpoena. These factors are set forth in
§122(e)(3) and include: “volume and toxicity of wastes, strength
of the evidence, . ty to pay, litigative risks, public
interest considera:.ons, precedential value, and inequities and
aggravating factors”

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formal negotiations with some or all affected PPps, or uhere:the
Agency judges that available information points to favorable
prospects for settlement). Since the use of administrative
subpoenas may be judicially challenged, itis important to
identify and document the reasons relied upon in deciding to use
the authority in S122(e)(3)(B). In particular, it is important
to be able to show how the subpoena’s issuance either furthers
the NBAR process or meets the criteria of “otherwise -
implementing this section.”;
Although there.isno statutory pràhibition ä áinst doing so,
a subpoena generally should not be used in the first instance to
gather information. Rather, a 1S104(e) information request is
the preferred method of obtaining:inforjnátion.
V. SERVICE OF I OR TION -REqUESTS JD UBPOE S
Information request letters .are a formal means of obtaining
information, and consequently should be served by registered or
certified mail, return receipt requested. (Mote that when
serving any document by registered or certified mail, post
office box addresses should be avoided.)
Service of a subpoena can be effectuated in a number of
ways depending upon the circumstances of the investigation.
Whenever possible, personal service is preferable, especially
when it is likely that the subpoena may be ignored or
challenged. When personal service is not practical, asubpoena
can be served r -‘istered or certified mail, return receipt
requested. Regardless of the method of service, the correct

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person must be served. Service upon a domestic corporation, or
upon a partnership or otler unincorporated association, :shou ld
be made by personal service or certified mail to an officer,
partner, managing oz general agent, or to any other person
authorized by law to receive service of process. The person
serving the subpoena, including the person who actually mails
the subpoena when that method of service is used, must complete
an affidavit of service at the time-of service. (Sèe Attachment
2 for a model subpoena and affidavitof service.
The statute places no explicit lin it on the distance that a
witness may be required to travel to appear in response to a
subpoena. Potential •locations for- uch an appearance. include an
EPA regional office, EPA Headquarters, a local.U,S. Attorney’s
office, a’coürt’re orter’s office, •or any otherlocation - a
considered appropriate under the circumstances.
VI. GENERAL DUE PROCESS CONSIDERATIONS IN INVESTIGATIVE
PROCEEDINGS PURSUANT TO AN ADMINISTRATIVE SUBPOENA -
A. Aaencv Adludications and Investigations Distinguished
When an agency such as the EPA orders a person to appear at
an agency proceeding, the procedural rights of the person
ordered to appear vary depending upon whether the agency’s
purpose isto adjudicate or to investigate. Examples of EPA.
adjudication include the issuar e of co .p1iance orders or the
assessment of civil penalties under S3008(a) of RCRA. Before
the Agency may issue a compliance order or assess civil
penalties under RCRA s3008(a), the person against whom the
Agency is taking action is accorded the procedural rights set

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fortri in 40 CFR Part 22. 16 These rights are similar totf t
of a defendant in a civil trial and include the right to no€ ic T
to submit evidence, and to cross-examine.
In contrast, when an agency issues an administrative- -
subpoena pursuant to S122(e)(3)(B), its purpose is only to
investigate or gather information and “it is not necessary that
the full panoply of judicial procedures be used.” Ha.nnahv.
Larche , 363 U.S. 420, 442 (1960).
(W]hen. • .agencies are conducting nonadjudicative, fact-
finding investigations, rights such as apprisal,
confrontation, or cross-examination generally do not
obtain. Id . at 446..
Despite this .limitation,’á witness may nonetheiess invoké
his Fifth Amendment -privilege as to particular uestions
presenting a threat of self- incrirnination. U.S. v. Malnik , .489
F.2d 682, 685. (5th Cir.,1974);
B. Role of Witness’ Counsel”at Administrative Subáoèni
- Proceedinas
The practicaleffèct of the fact that witnesses have ] imited
procedural rights’ dtiring information-gathering under -an :
administrative subpoena is that the role of a witness’ counsel
is limited. Although S555(b) of the Administrative Procedure
Act (APA) provides a_person with the right to counseiát any
16 Part 22 procedures do not apply to compliance orders
issued under CERCLA S104(e)(5). Due process is
assured under S104(e)(5) by the statutory requirements that the
respondent have an opportunity to confer with the Agency prior
to issuance of the order (discussed below) and that orders be
enforced by commencing a civilaction. Similarly, Part 22
procedures do not apply to the assessment of penalties undez
S 104(e) as that can only be accomplished by commencing a civil
action.

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agency proceeding at which he is compelled to appear;-
“ eprezentation” under the AP . “varies in meaning de en in on
the nature of the function being exercised.” F.C.C. v.
Schreiber , 329 F.2d 517,526 (9tn Cir. 1964).
( .J]hi1e counsel may, as a matter of right,objec€ and
argue objections on the record, just as he may, as a
matter of right, cross-examine and call witness s in a
trial-type adjudicatory proceeding, these rights do not
exist in the fact-finding, nonadjudicative invest ’igation
unless specifically provided by statute or duly:.
promulgated rules. The right to object and rWe
objections on the record is not to be implied, here,
from use of the word “represented” (in the
. dxninistrative Procédure Act.]
‘ p .
Thus, although subpoena proceedings, under. CERCLA:are tè öIded,
‘and the witness isunder, ,oath and may have-an attoêpreS ’ent
for consultation, counsel. forthewitness is not aI ] .”ow d ta
“speak to the record,” to cross-examine, to. -aid indévéioping
• testimony, or to otherwise “coach” the witness. FurthetinôTh,
other parties potentially affected by the investigation dô ”ñot
have a right to be present during the questioning.
I v i i. ENI DRCEMENT OF INFOR1 TI ON REOUESTS AND sUBPOENAS ’
A. Information Requests
1. Initial Steps
When the deadline for responding to an information request
has passed, a reminder letter should be sent to the unresponsive
information request recipient, 1) informing the recipient that
S104(e) provides for a penalty of up to $25,000 per day for
noncompliance, and 2) stating the date after which a civil
judicial or administrati e enforcement action may be initiated.

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17
The reminder letter should also provide an Opportunity for
consultation; 17 This will fulfill the requirement of
S104(e)(5)(A) if enforcement by administrative order is
contemplated and should also fulfill any due process
requirements for record review. (See Section VII.A.4., “Scope
of Judicial Review,” below.) Whenever a recipient takes
advantage of an opportunity for consultation, the issuing
official should send a letter to the recipient summarizing any
contacts with the -recipient , and stating EPA’s ri olution of-any
objections. If there is no response or if the eiponse to a
request is still unsatisfactory after the reminder letter
deadline has passed, EPA may compel compliance with the request
rough either an:adiitinistrativèor judicial action. -
:2• - Administrati e Orders to ComDel Comoliance
Under CERCLA-SlO (e)(5)(A),EPA can issue an administrative
order directing compliance with an information request. Each
administrative order should include a finding by the Re-i onal
Administrator that there exists a reasonable . elief that there
may be a release or threat of release of a hazardous substance
and a description of the purpose for which the information
request vas issued. The order should state the date on which it
becomes effective and also advise the respondent that penalties
17 The statute leaves the decision whether to provide
notice and opportunity for consultation to the
discretion of t .A’ency. However, the Agency believes that it
is in the best interests of all concerned to provide an
opportunity for consultation whenever possible, particularly
prior to the issuance of an administrative order.

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18
of up tO $25,000 per day may be assessed by a court against any
party who unreasonably fails to comply with the order.
In addition, the order should note that an opportunity for
consultation was provided and should briefly summarize any
contacts with the respondent. 18 -
3. Civil Actions to Comoel Compliance
Alternatively, or in the event that an administrative order
does.not lead to compliance, EPA, through DOJ, can commence a
civil action under ‘S104 e)(5) (B)’ :19 that civil action, EPA
can, seek injunctive relief and/or civil penalties not to exceed
$25,000 ,per day for each day of noncozñpliance.
A referral to DOJ for an inadequate response or no response
18 Normally, the consultation requirement will be
fulfilled by offering the recipient an opportunity
to contact the EPA uithquestions or objections, in the
information request itself or in any su.bsequent reminder letter.
Given this prior opportunity for consultation and the narrow
scope of the order, it generally will not be productive to-delay
the order and offer another opportunity for consultation.
However, if it is likely that additional-discussion will lead
directly, to compliance, and the extra delay does not result in
an unreasonable threat to human health or the environment, the
Region may provide another opportunity for consultation prior to
issuance of the order. - -
19 Section ].04(e)(5)(B) states:
The President may ask the Attorney General
commence a civil action to compel compliance
with a reauest z order r ferred to in
subparagraph (A).
EPA’S ability to commence a civil action without first issuing
an adrninistrat - rrder to compel compliance under S1O4(e) was
upheld in U.S. Lr arles George Truckina Co. , No. 85-2463- ID
(1st Cir. March 31, 1988). See also, U.S. v. Northside Sanitary
Landfill. Inc. , No. I? 88—172—C, (S.D. md. April 12, 1988).

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19
at all. Should include all evidence needed to u port thecase.
This includes evidence or findings that:
(1) EP has a “reasonable basis to believe that there may
bea release cr threat of a release of a hazardous substance,
pollutant or contaminant” at a given site or vessel;
(2) the information request was issued forthe purpose of
determining the need for a response or choosing or taking any
response action under CERCLA Title:I,-or otherwise enfór âiiig.
CERCLA Title I, witfl respect t0 the site -or vessel;:
(3) the respondent was requested to. provide” information
relating to one or more of the hree categories of-:iñforzñaUon
identified in SlO4(e)(2)(A)—iC);
4) respondent did not comply with the..requestin-a--tjmely
manner.
(5) - where appropriate, respondent should pay a ci iii
penalty, recommended at $___ . (Sde Section VII.A.5.,
“Penalties,” below.)
In addition, the referral should include proof of se ièe
•and should address possible defenses’, such as thata good:faith
effort was made to comply, or that the request for information
or documents is arbitrary and capricious, unduly burdensome, an
abuse of discretion or otherwise not in ‘accordance with law.
The decision to either issue an administrative order or
initiate a civil action must be made on a case-by-case basis.
Where there is reason to believe that an administrative’ older
will not bring immediate compliance, a civil action should be

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20
favored. Tor example;:if thè recipientof a information
request has made little or no effort to respb±’.d to the request 1
or has a history of disregarding requests for information or
delaying responses to requests, issuing an administrative order
may serve little purposé While an administrative order -
typically can be issued within a shorter period of time than a
complaint can be filed, the overall duration of the enforcement
action may well be extended if the administrative order is
disr garded since enforcement -of the árder will be through the
referral and filing of E a civil jüdiciã’l action.
4.. Scone of Judicial Re iiew
In an action to enforce ‘áh inforinat1on request c’r an
administrative order for compliance with an information request,
- the court’s review is .limitedto pnsidéring whether the
information request -is: a bi arymnd cap icious, an..abuseof
discretion, or otherwise not in accordance ‘ith law.” -
S104(e)(5)(B)(ii). 20 This clearly limited review shouldnot
serve as an opportunity to review’other aspects of the cage.
20 Judicial review is not thusly limited when the
- ount of the penalty is the issue before the court.

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21
such as remedy selection or 1iability.-J 2 l: ’( jj u.s. v Wès e
Process1naIr c. , No. C83-23ZM (W.D. Wash. February 19, 1986).
In cases where the Agency has provided an opportunity for
consultation regarding the administrative ordér ’ and has ‘created
an administrative record reflecting the parameters and elements
noted on pages 6 and 19, above, the Government may argue that
judicial review of the administrative order-should be limited to
an administrative record. This argument is based upon th
language in S104(e)(5)(B) that provides for--jüdicial reviéw:
under the arbitrary and capricious standard. The thAcceuibf
obtaining record review hinges on providing -and documenting
adequate procedural due process administrative1 22
5. &_
Under S104(e) (5) (B) (ii ),. of ,CERCLA , -.civi U pënãlties’m be
assessed against any person who inreasonablyfai ls •‘ o’ ón l y
21 - Related to the scope of judicial review is the
degree to which a defendant may engage ir. • overy
once an enforcement action is initiated. Discovery gene. - -_ ly is
restricted in enforcement proceedings, involving administrative
subpoer3s (see n. 27, infra ) and similarly, should be restricted
in actions brought under S104(e) of CERCLA. If discovery is
allowed at all in a given action, the Government’s position is
that its scope should be limited to addressing the parameters
for administrative investigations noted on page 6.
22 It may also be possible to seek record review of
an information request without first issuing an
administrative order since CERCLA s1O4(e)(5)(B,u ) provides for
review of both information requests and administrative orders
under an arbitrary and capricious standard. Before seeking
record review of an information request, the Agency would first
have to provide sufficient procedural due process, including an
opportunity for consultation, and an administrative recordwol.ild
have to be created reflecting the parameters and elements noted
on pages 6 and 19, above.

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22
- with the initial information request or subsequent compliance
order. The question of whether to seek penalties may arise in
two situations: 1) where injunctive relief is sought to compel
the respondent to answer the information request and penalties
are sought in addition to injunctive relief, and 2) where the
respondent has answered the information request, albeit not in a
timely manner, and penalties are the only relief sought. 23
- -In both situati6ns, to support penalties, the evidenc must’
demonstrate: 1) that the information request is enforceabie; 24
and 2) tha the r espond’ent’? conductwas unreasonable. To
assess the reasoñablèness of a respondent !s:coflduct, and thus
determine whether to see3c penalties, Regionalcpersorinel should
consider factors such as the respondent’s good faith or 1á k óf
good -fii€h the information request, and
23 In information request enforcement actions,
penalties can be assessed against arespondent..even
if he eventually complies with the information request. See
e.g. U.S. V. Liviola , 605 F. Supp. 96 (N.D. Ohio 1985), U.S. v.
Charles Georue Trucking Co. , 823 F.2d 685(1st Cir. 1987).
24 For an information request to be enforceable, it
must conform to the basic parameters noted above on
page 6. Any issue of the reasonableness of the information
request itself is subsumed by these parameters. Thus, once it
is determined that an information request is enforceable, the
focus in terms of liability for penalties is limited to the
respondent’s conduct. The statute provides that a civil penalty
may be imposed “against any person who unreasonably fails ito
comply with” an Agency request or administrative order: •-Faulure
to respond adeq- y to an information request is presumptively
unreasonable, and the recipient of the request bears the burden
of proving that noncompliance with that request is in fact reasora e.

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23
any willfulness or negligfnCe associated with,. the respondent’
actions. 25 - - -
B. Subpoenas
1. Jurisdiction an .Venue
If a respondent to an administrative subpoena refuses to
appear to testify or provide documentary evidence, or refuses tc
answer any or all of the questions put to him, the Agency .may
commence enforcement proceedings in U.S. district court. 26.
CERCLA S122(e)(3)(B) states:
In the event of contumacy or. failure or refusal
.of any person to ot èy any such ubpoénà, án j district
court of the United States nyhich yenueis proper
shall.have: j iri diction person to
comply with such subpoena. Any failure .to obey such
an.ordercof- the ôu ti puñishabléby he court a
contempt thereof.
Venue for such an action “shall li-e in.any.district;court i-n
— 4 — .4 . PV .Y :; - - — - - —
which the release or damages occurred, or in which the defendant
resides, may be found, or has his principal office.” CERCLA
S113(b).
25 The decision to seek penaltiis should also include
consideration of the Supreme Court’s recent decision
in Tull v. United States , 481 U.S. ___ , 107 S.Ct. ___ , 95 L.EcI.
2d 365 (1987), which provided for a 7th Amendment right to a
jury trial in the context of a Clean Water Act enforcement case.
where civil penalties were sou ght by the Government.
26 All proceedings in the U.S. district court must-be
initiated by the Department of Justice onbeha f of
EPA. The court lacks jurisdiction to review the propriety,of an
administrative -‘ ,poena upon motion.of a reSpondent. Belle 2
Fourche PiDelir. . _ ; . v. U.S. , 751 F.2d 332 (10th Cir. .1984). if
a respondent wishes to challenge a subpoena, he may refuse-to
cooperate and force the Government to initiate an enforcement
action.

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24
2. Prpcedures for Enforcing Su.bpoen
Enforcement proceedings are begun by submitting a petition
to any appropriate federal district-court seeking an order that
the respondent show cause why he should not be ordered to comply
with the subpoena. (See Attachment 3, model petition.) Although
Fed.R.Civ.P. 81(a)(3) states that the Federal Rules of Civil
Procedure apply to administrative subpoena éhfor ement
proceedings “unless otherwise provided by statute -or by r ies of
the district court or-by order-of the coürtintfie -pró eedings,”
courts have consistently -held .that subpoena eñfor èm nt
proceedings are .suxnznary, -and t at discover is.geneLa.I.j iJ

inappr a given the scope of the issues efore the court. 27
To prevent a respondent. -from atten ptin4 t fen age’-in
discovery prior to the show cause hearing,: the petition iñay
include a request that Rules 26-37 and 45 be suspended unless
specifically reinstituted by the court followingthe heari ng.
The petition, accompanied by affidavits and legal thèmoranda,
must demonstrate that the subpoena was issued -for a lawful
27 The court, in its discretion, may order discovery,
but only where the• defendant meets the “heavy burden
of showing extreme circumstances that would justify further
inquiry...’ U.S. v. RFB Petroleum. Inc. , 703 F.2d 528, 533..
(Temp. nerg. Ct. App.)Lquoting U.S. v. Juren, - 687 F.2d 493, 494
(Temp. Eznerg. Ct. App. 1982).] This burden is not a “meager
one.. . (the defendant] must corre forward with facts suggesting
that the subpoena is intended solely to serve purposes outside
the purview of the jurisdiction of the issuing agency.” N.L;R
v. Interstate Dress Carriers , 610 F.2d 99, 112 (3d Cir. 1979 )
(emphasis added, citations omitted). See also U.S.v. MCGOVt ‘,
87 F.R.D. 590 (M.D. Pa. 1980), Lynn v. Biderman , 536 F.2d 82(
825 (9th Cir.) cert. denied sub nom. Biderman v. Hills , 429 U 3.
920 (1976).

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25
purpose and is relevant to an agency investigation. At the Show
cause hearing, the burden is-on’the respondent toshow that the
subpoena is unenforceable insomerespéct;
At the conclusion of the show cause hearing, the court may
order compliance, deny enforcement or modify the subpoena.
Subsequent failure of the respondent to conply with the court’s
order may result in contempt proceedings against thërespor derit.
C. Referrals-. .
.Referrais-:to -theDepartmentof Jstice Ofcä éStöen’force
information-requests and adxñinistrati esubp0enas will be
handled in accordance with -the pr ocedures set fofth in the
January l4,.r1988 memorandum fráxn 2 the Ass1 t’arIt AdjTiius -ra or for
Enforcement - .and Compliance Monitoring en fitfed, “Expansion of
Direct Referral of Cases to the Department- of Justice.” In
time-critical situations, the procedures outlined in théthe
April 15, 1988 memorandum from the Acting Associate Eñforcéznent
Counsel for Waste entitled, “OECM-Waste Procedures
Processing Oral and Other Expedited Referrals” shóuld be
followed.
A referral to enforce an information request will not differ
significantly from a referral to enforce most other sections of
CERCLA. However, due ..o-the sununary nature of r ior to.
enforce an administrative subpoena, a referral to enforce an
àdñtinistrative subpoena should contain certain additional
elements not commonly included in other referrals.

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-26
A referral to enforce an ad inistrá ive subooena srild
consist of a draft petition for an order to sho’ 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 apply the legal standards for enforcement to those
facts. In addition, the memorandum should 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 anaffidávi€ of iè?vth e, a
copy of the subpoena; an affidavit supporting the facts ai eged
in the petition from a person with Jcnowledge’óf th jsefàcts, and
any other relevant material which serves as the adminiC’trà ive
record documenting the subpoena process.
VIII. DISCLAIMER
This memorandum and any internal procedures adopted for its
implementation are intended solely as guidance for emil” - es of
the U.S. Environmental Protection Agency. They do not
constitute rulemaking by the Agency and may not be relied upon
to create a right or a benefit, substantive or procedural,
enforceable at law or in equity, by any person. The Agency may
take action at variance with this memorandum or t internal
implement ing procedures.

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MODEL Information request Attadunent.
CERTIFI I’ IL (OR DHL] (Note: No certified or express
RETURN R.ECF.IPT REqUESTED mail to P.O.Boxes]
(Date] -
IPRP Mamel
IPRP Address 1
Re: Request for Information Pursuant to Section 104 of
CERCLA (and Section 3007 of RCRA,] for ( Site Name ]
in ( Site location ] hereinafter referred to as “the Site”
Dear Sir or Madam:
The United States Environmental Protection Agency (EPA).:is
currently investigating the source, extent and nature of the
release or threatened release of hazardous substances,-
pollutants or contaminants, or hazardous wastes on or about the
( Site Name ] in ( Site Location ] (the Site). This invest:igation
requires inquiry into the identification, nature, and qiaa.ntity
of materials that have been or are generated, treated, •stored,
or disposed of at, or transported to, the Site and the nature or
extent of a release or threatened release of a hazardous -
substance or pollutant or contaminant at or from the Site. EPA
also is seeking information relating to the abilityof;aperson
to pay for or to perform a cleanup of the Site. -
Pursuant to the authority of Section 104 of tile Comprehensive
Environmental Response, Compensation, and Liability Act .:iv
(CERCLA), 42 U.S.C. S 9604, as amended, (and Section 3007 of the
Resource Conservation and Recovery Act (RCRA), 42 U.S.C. S
6927,] you are hereby requested to respond to the Information
Request set forth in Attachment A, attached hereto.
Compliance with the Information Request set forth in
Attachment A is mandatory. Failure tc respond fully and
truthfully to the Information Request within ( insert reasonable
number of days to resDond. s ell out number and ut number in
parentheses. e.g.. thirty (30) ] days of receipt of this letter,
or adequately to justify such failure to respond, can result in
enforcement action by EPA pursuant to Section 104(e) of CERCLA,
as amended, (and/or Section 3008 of RCRA.] (Each of these
statutes/ This statute] permits EPA to seek the imposition of
penalties of up to twenty-five thousand dollars ($25,000) for
each day of continued non-compliance. Please be further adVised
that provision of false, fictitious, or fraudulent statements or
representations may subject you to criminal penalties under 18
U.S.C. S 1001 or Section 3008(d) of RCRA.
This Informat F quest is not subject to the approval
requirements of r.ne Paperwork Reduction Act of 1980, 44 U.S.C.
3501, et seq.

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
AUG 3 0 1991
OFFICE CF ENFORCEJ.(EJji
MEMORANDUM
SUBJECT: Recoitunendations Concerning the Use and Issuance of
Administrative Subpoenas under CERCLA Section 122
FROM: William A. White
Enforcement Counsel for Superfund
TO: Regional Counsel
Regions I - X
It has come to my attention that the Agency does not often
exercise its administrative subpoena authority under CERCLA
Section 122(e) (3) (B) in the course of prosecuting and settling
enforcement cases. This provision gives EPA broad authority to
issue subpoenas administratively to require the attendance and
testimony of witnesses and the production of documents. Because
subpoenas may be used both for gathering information about a
party’s contributions of waste to a site as well as for
“otherwise implementing” Section 122, they may be issued in
connection with or prior to formal negotiations with PRP5, or
where the Agency judges that available information points to
favorable prospects for settlement. I strongly encourage the use
of this underutilized information gathering mechanism.
As a practical matter, subpoenas may and should be issued
whenever responses to Section 104(e) information requests
indicate that a person is connected to a site as a potentially
responsible party, and that settlement may be an appropriate
resolution of the matter. In addition, because responses to
Section 104(e) information requests are sometimes oblique,
further investigation using the Section 122 subpoena authority is
an efficient manner in which to determine whether a 104(e)
recipient has fully provided all relevant information about its
contributions to and connections with a site. In addition, the
subpoena may be used to gather other information relevant to
issues for settlement purposes. See United States v. Northside
Sanitary Landfill, Inc. , Misc. No. 89—85 (S.D. md. May 4, 1990)
(use of CERCLA subpoena to gather financial information qpheld 4 .
over recipient’s objection).
Pniuud o . Recyclad Paper

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2
The August 25, 1988 “Guidance on Use and Enforcement of
CERCLA Information Requests and Administrative Subpoenas” (which
is being re-transmitted with this Memorandum as Attachment 1)
discusses some of the Agency’s administrative information
gathering authorities in more detail, and should be consulted
when considering and drafting any subpoenas to be issued pursuant
to Section 122(e)(3)(B). While this 1988 document has proven to
be effective and useful guidance, the model subpoena included as
Attachment 2 omits a statement notifying the recipient of the
treatment of Confidential Business Information (CBI). The
omission of a CBI notice does not render the subpoena invalid or
unenforceable; however, the failure to inform a party that it may
claim certain information as CBI may complicate and delay the use
of information that is gathered pursuant to Section 122. To
eliminate this as an issue in enforcement cases, administrative
subpoenas should clearly state that the recipient may claim
certain information confidential pursuant to the Agency’s
regulations in 40 C.F.R. Part 2. This oversight is remedied in
the revised model subpoena attached to this memorandum (see
Attachment 2).
In addition, to minimize the opportunity for challenges to
administrative subpoenas issued under Section 122, the following
safeguards should be observed: -
The subpoena should --
o Identify clearly the site name and location, and the issuing
Regional Office.
o Include a statement of the Agency’s authority to issue the
subpoena and the purpose for which the information is
sought.
o Describe and/or identify as specifically as possible the
information required to be provided by the recipient. As
specific a listing of the documents or areas of inquiry
(either as an attachment or within the body of the subpoena)
is strongly recommended.
o Identify with certainty the person to whom it is issued. In
the case of a corporation, partnership, or other
organization, the subpoena must be directed to an officer,
partner, agent, or other person authorized by law to receive
service of process.
o Be delivered by personal service or certified mail (return
receipt requested). The use of Post Office Boxes for
service by certified mail is discouraged, but permissible
where no better address is available. A certificate of
service should be executed and maintained to accompany the

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3
issuance of every subpoena, even when delivery is by
certified mail, as a regularly maintained business record of
the Agency.
o Advise the recipient of the potential sanction for the
failure to comply with the subpoena.
o Advise the recipient of the right to claim certain
information as confidential.
o Specify atime and place for attendance of the witness
and/or for the delivery of documents.
o Provide the name and telephone number of a person whom the
recipient can contact for consultation or questions
concerning the subpoena. It is recommended that the
designated Agency contact be the Assistant Regional Attorney
assigned to the case.
o Specify the date that the subpoena is issued, and be signed
by the Regional Administrator (or his delegatee).
o Be accompanied by a cover letter to the recipient explaining
that the subpoena requires them to appear at the time and
place specified, and the purpose for the subpoena. The
letter should also include a brief statement identifying the
information sought.
Finally, under CERCLA Delegation 14-6, Headquarters must be
consulted prior to the issuance of a Section 122 administrative
subpoena. While consultation is not a legal prerequisite to
enforcement of a subpoena, our experience has confirmed the value
of the consultation requirement. Consultation consists of
Headquarters review of the draft subpoena, cover letter to the
recipient, and certificate of service, and a brief discussion
with the Regional attorney to review the facts and circumstances
surrounding issuance of the subpoena. The consultation process
allows the issuing Region to draw on the experience gained from
the issuance of subpoenas nationwide, and provides assurance that
the subpoena satisfies the minimum legal requirements for
enforceability.
The time necessary for a prior consultation between the
Regional and Headquarters delegatee is not long, and is usually
completed within 24 hours of the request (often on the same day).
To further expedite the process, it is recommended that the draft
subpoena be telefaxed to Headquarters (FTS 260—3069) before
calling to consult. The Headquarters attorney designated by me
for consultation is John Fogarty (FTS 260—8865) ( See the
companion memorandum issued today entitled “Consultation with OE
under CERCLA Delegation 14-6”). If John is unavailable, please
contact Michael Northridge (FTS 260-3586).

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YOUR NATIONAL ENFORCEMENT TRAINING INST IIUTE
PLEADING & LITIGATING
CIVIL PENALTIES
Region 4- Atlanta, GA
April 21, 1999
8:30am Overview: The Changing Environment of Federal Practice & Pleadings
- General trends; adm nistrative civil judicial
- Policy & practice realities
MichaelJ. Walker
Senior Enforcement Counsel for Administrative Enforcement
U.S. EPA; Washington, D.C.
9:30am. Wausau & Post Wausau Issues
- What the Court said
- What the Environmental Appeals Board Held
Robert Guenther
Assistant Regional Counsel - Region 5
9:55-10:10 BREAK
10:10a.m. The Civil Penalty Process
- Statutory requirements
- Penalty Policies & charging guidance
David J. J2nik
Supervisory Litigation Counsel
U.S. EPA, Region 8, Denver, Colorado
10:30a.m. Use of Civil Penalty Policies (Enforcement Response Policies)
- Use of Penalty Guidance
- Recovery of “Economic” Benefit
- Documentation - Use of Penalty Worksheets

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-2-
11:00am B. Drafting Effective Civil Complaints: Pleading - with Clarity &
Precision -
- Notice Pleading Considerations
- Required Statutory Factors
- ‘Pair” Notice under the Constitution; Rules of Practice and
Small Business Regulatory Fairness Act (SBREFA)
11:20am D. The Negotiation Process: Effective Presentation
pavid J21tik] ________- —
11:45am E. Hearings & Trials:
- Present the Evidence or Argue the Law ?
- Preparation, then presentation through witnesses,
exhibits & briefs
- EXAMPLE: GEC Precision (see text)
- EXAMPLE: IVausau Transcript (see text)
12:15 F. Potential Problem Areas
- failure to relate factual aspects of violations to the
Statutory considerations required for penalty assessment
- blind reliance on “cookie cutter” penalties — the dilemma
National consistency vs. individual case-specific
considerations
- failure to prepare witnesses
- failure to anticipate difficult direct or cross-examination
questions
12:30 G. Wrap up & Conclusions

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NATIONAL ENFORCEMENT TRAINING INSTITUTE
9th ANNUAL
ADVANCED ADMINISTRATIVE PRACTICE INSTITUTE
April 21-22, 1999
U.S. EPA - Region 4
61 Forsyth Street, S. W.
Atlanta, Georgia
WEDNESDAY, APRIL 21,1999
2:00-2:30 COURSE INTRODUCTION: SCOPE & PURPOSE 1
Michael J. Walker
Office of Enforcement & Compliance Assurance
• Environmental justice: Challenges & Opportunities
• Intervention?
• OECA SEP Policy & Guidance
• Pollution Prevention - Design for Environment
• SEPs & Environmentally Beneficial Expenditures
2:30 - 3:30 THE VIEW FROM THE TRIAL BENCH :
Justice Dekjed is Justice Denied
Honorable Stephen McGuire
Administrative Law Judge
3:30- 3:45 Break
3:45 - 5:00 Administrative Access Authorities : From Atlas andARCO to?
Andrew Duchovany, Region 3
Bob Roberts, OECA - Office of Site Remediation Enforcement
1 In the interest of pollution prevention through paper conservation, this is planned to
be a mosilyg ren conference, with handouts to be kept to an absolute minimum. Participants
are encouraged to raise practice issues, including pleading approaches and examples, then to electronically
circulate examples of pleadings and briefs by forwarding word perfect files to Helene Anibrosino for group
distribution. Use this genda for notes;for reminders of douments to send to Hebne and a ’p c of documentç you want to
recth I y E-MaiL

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page two
Thursday, April 22, 1999
8:30- 9:30 DEVELOPING & PLEADING CASES
David J.Janik
U.S. EPA - Region 8
• Effective Complaints; Evidence & Penalty Demands
• Anticipating & Meeting A Vigorous Defense
• Maintaining the Momentum
• Administrative Discovery: T vnds c Development:
9:30-10:30 WITNESS TESTIMONY & EPA PENALTY POLICIES
Robert Guenther, Region 5
• Importance of Economic Benefit
• Case Development; Evaluating Economic Benefit
• Who to use as a witness
• Developing an effective pre-hearing exchange
• Hearing practice & procedure
• Settlement Negotiations
9:30-10:30 KEEPING THE RECORD CLEAN -
Striking Affirmative & Other Defenses
• Amending Complaints
• Motions for Default Orders
• Motions to Dismiss
• Motions To Strike Affirmative Defenses
• Motions to Deem Factual Allegations in Complaint Admitted
• Motions To Exclude
• CBI/Proprietary Information/Data Issues
• The Effective Pre-Hearing Exchange
• Affidavits & Declarations of Witnesses
• Motions for Sanctions
• Motions For Accelerated Decisions Ifull or partiall
• Responses To Motions Seeking Accelerated Decisions
• Motions for Default Orders
• Unilateral Orders
10:30- 10:45 Break

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page three
10:45-12:00 Eme gingP ucticeA va: FEDERAL FACILITY ENFORCEMENT
Andrew Cherry ( I2’2 z. VU) 4ul4 d c(t fr ’
OECA - Federal Facility Enforcement Division
12:00-1:00 Lunch
1:00-2:00 ADMINISTRATIVE PRACTICE ¶ MUST -HAVES-
• Statute specific penalty policies
• General Penalty Policies
• Audit/Self Disclosure Policy
• Supplemental Environmental Projects Policy
• Ability To Pay Guidance
2:00-3:00 PRACTICE ISSUES BEFORE THE ENVIRONMENTAL
APPEALS BOARD Consultation and Coordination
3:00-3:15 Break
3:15-4:15 NEW DEVELOPMENTS IN ADMINISTRATIVE
PRACTICE : 40 CFR Part 22; Subpart I
4:15-5:00 PRACTICAL COURTROOM SKILLS
Resou ve: ô’ TooLs ’
• Preparation Checklists
• Stipulations
• Laying foundations for exhibits
• Qualifying expert witnesses
• Responding to objections
5:00 p.m. WRAP UP & ADJOURNMENT UNTIL 2000
• Review of action items
+ Practice needs assessment & evacuation
• Planning for a stronger “TEAM EPA”
THANK YOU FOR PARTICIPATING
& CONTRIBUTING TO THIS COURSEI

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c&4
-

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Chief Judge Susan L. Biro:
Chief Judge Biro joined the EPA as an Administrative Law Judge in November of 1996
and was appointed Chief Administrative Law Judge in May 1997. From 1994 until 1996 she
served as an Administrative Law Judge with the Social Security Administration in New York City
and prior thereto was a litigation partner in law firms in the Washington metropolitan area She
received her law degree from Washington College of Law.
Record for 1998 - Chief Judge Biro issued 13 decisions in 1998. Six of those decisions
were Initial Decisions as follows.
Lyons Fuel - Proposed penalty - $4,500, Assessed penalty - $4,500
Boilman Hat - Proposed penalty $39,716; Assessed penalty - $8,166
Steeltech - Proposed penalty - $84,390; Assessed penalty - $61,736
Clarksburg Casket - Proposed penalty - $102,000; Assessed penalty - $96,900
Corporacion para el Desarrollo Economico y Futuro de Ia Isla Nena, et seq. - Proposed
penalty $75,000; Assessed penalty - $75,000
Mark Fastow et seq. - Proposed penalty - $11,625, Assessed penalty - $9,082
1) Grants extensions of time.
2) Allows supplementation of preheanng exhange.
3) Allows last minute motions.
4) Will grant a Motion for Default. The Judge has held a Respondent in default where it filed
sent an informal letter in lieu of an Answer and did not file it with the Regional Hearing Clerk
5) Treatment of ERPs.
6) Wants a penalty witness.
‘I
Judge Andrew S. Pearistein:
Judge Andrew S. Pearistein joined EPA’s Office of Administrative Law Judges in August
1995. He was an AU for Social Security from 1994-1995 and the New York State Department
of Envoironmental Conservation from 1985 until 1994 Before that he was in private practice in
Nevada and New York. He received his law degree from Gonzaga University School of Law and
has taught courses in Environmental Geology and Environmental Law at the State University of
New York at New Paltz.
Record for 1998 - Judge Pearistein issued 18 decisions in 1998. Only one was an Initial
Decision in which he assessed a penalty of $80,000 where the EPA has proposed a $125,000
1) Grants extensions of time. Will grant requests for more time but wants “good cause” shown

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Has held that engaging in settlement negotiations does not constitute good cause.
2) Allows supplementation/modification of prehearing exchange. Generally allows
supplementation/modification up until 30 days before the hearing. In one case he ruled that
parties may freely supplement prehearing exchanges, without motion, up until 10 days before the
hearing. However, he has ruled that striking any or all of a party’s prehearing exchange is
premature before a hearing At hearing objections may be raised if and when a party attempts to
introduce prehearing exchange into evidence.
3) Allows last minute motions. Last minute motions have not been allowed where there has
been insufficient time for a response by the other party and a decision before the hearing
4) Will grant a Motion for Default. Denied a Motion for Default based on EPA’s failure to
provide prehearing exchange by the due date and held that where such a failure was not due to
bad faith a dismissal of the case is not justified.
5) Treatment of Enforcement Response Policies. EPA may use an ERP to show it considered
all statutory penalty factors, but he does not feel bound by ERPs. He will express how he is
deviating from the ERP using a narrative style rather than a qualitative approach and will take into
consideration factors not expressed in the ERP.
6) Wants a penalty witness. Has held that a penalty witness is necessary because Respondent
has a right of cross-examination on the penalty issue. In one case he ruled that he would issue an
Show Cause Order to appoint a financial expert if the parties did not designate one. However, he
has also held that whether or not to put on a penalty witness is normally a matter within EPA’s
discretion.
ge Carl C. Charneski:
Judge Charneski became an Administrative Law Judge for the EPA in September of 1995.
From 1994 until 1995 he was an AU with Social Security in Milwaukee, Wisconsin. Before his
judicial appointment, Judge Charneski was a Trial and Appellate Attorney with the Department of
Labor, Office of the Solicitor. He received his law degree from St. John’s University in Queens,
New York. A ce 5tit: 4 th”s
Record for 1998 - Judge Charneski issued 8 decisions in 1998. Five of those decisions
were Initial Decisions as follows.
Coleman Trucking - Proposed penalty - $50,000; Assessed penalty - $30,000
EK Associates et seq. - Proposed penalty - $151,622, Assessed penalty - 86,107
First Capital Insulation - Proposed penalty $39,550; Assessed penalty - $20,000
Burtin Urethane Corp - Proposed penalty $193,548; Assessed penalty - $120,000
Condor Land Company - Proposed penalty $32,160; Assessed penalty $32,160

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1) Grants extensions of time.
2) Allows supplementation of prehearing exchange.
3) Allows last minute motions.
4) Will grant a motion for default.
5) Treatment of ERPs.
6) Wants a penalty witness.
ge Barbara A Gunning:
Judge Gunning has been serving as an Administrative Law Judge for EPA since January of
1997 From 1995 through 1996 she served as an ALl for Social Security in Pittsburgh,
Pennsylvania From 1984 until 1995 Judge Gunning was a senior attorney at the Board of
Immigration Appeals, Department of Justice From 1977 until 1984 she served as an acting
Board Member and senior attorney at the Board of Veterans Appeals.
Record for 1998 - Judge Gunning issued 13 decisions in 1998. Two of those decisions
were Initial Decisions as follows.
Rogers Corporation - Proposed penalty - $300,300, Assessed penalty - $281,400 CO4- .
Pepperell Associates - Proposed penalty - $47,930, Assessed penalty - $24,876
1) Grants extensions of time.
2) Allows supplementation of prehearing exchange.
3) Allows last minute motions.
4) Will grant a motion for default. ‘1 diP ,t,-I1’” rr1c i
5) Treatment of ERPs.
6) Wants a penalty witness.
Judge Stephen J. McGuire:
Judge McGuire was appointed as an AU with the EPA in January of 1997. From 1994

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until 1996 he was an AU with Social Security. Before his judicial appointment, from 1987 -
1994 he was Chief Hearing Examiner and from 1987 to 1994 and Counsel for the Department of
Interior Board of Contract Appeals, and was an Attorney Advisor for the Department of Interior
from 1977 - 1981. Judge McGuire received his law degree from Texas A & M University Law
Center, South Texas College of Law.
Record for 1998 - Judge McGuire issued 11 decisions in 1998. Two of those decisions
were Initial Decisions as follows:
American Disposal Inc - Proposed penalty - $29,040, Assessed penalty - $29,040
Bil-Dry Corp. - Proposed penalty - $231,800; Assessed penalty - $103,400
1) Grants extensions of time.
2) Allows supplementation of prehearing exchange.
3) Allows last minute motions.
4) Will grant a motion for default.
5) Treatment of ERPs.
6) Wants a penalty witness.
/ id e Spencer ssen
Judge Nissen joined EPA s Office of ALJs in Januaiy 1977. During his prior government
career, Judge Nissen served as a member of the Department of Interior Board of Contract
Appeals, as the Chief Counsel for Procurement Litigation in the General Services Administration
and as an attorney advisor to components of the Department of Defense engaged in the award and
administration of government contracts. He received his law degree from the University of South
Dakota.
Record for 1998 - Judge Nissen issued 12 decisions in 1998. Five of those decisions
were Initial Decisions as follows
Catalina Yachts - Proposed penalty - $175,000, Assessed penalty - $39,792
Bradley Petroleum - Proposed penalty - $78,750; Assessed penalty - $0 (case dismissed)
Araphoe County Weed District - Proposed penalty - $2,400, Assessed penalty - $2,400
Zaclon, Inc - Proposed penalty - $81,100; Assessed penalty - $9,000
George Atkinson - Proposed penalty - $13,700; Assessed penalty - $12,656 (default)
1) Grants extensions of time.

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2) Allows supplementation of prehearing exchange.
3) Allows last minute motions.
4) Will grant a motion for default.
5) Treatment of ERPs.
6) ants a penalty witness.
Judge William Moran:
Judge Moran joined EPA as an AU in June of 1997. From 1994-1997 he was an AU
with Social Security and, before that, was Counsel for the Department of Labor’s Federal Mine
Safety and Health Review Commission and Assistant Counsel for the Mine Safety and Health
Division of the Solicitor’s Office. Judge Moran has also prosecuted criminal cases in the District
of Columbia. A graduate of Suffolk University Law School, he also has an L.L M. from
Georgetown School of Law.
Record for 1998 - Judge Moran issued 10 decisions in 1998 Three of those decisions
were Initial Decisions as follows
Spang - Proposed penalty - ?, Assessed penalty - $0 (case dismissed)
Jifl Builders - Proposed penalty - $22,000, Assessed penalty - $22,000 (default), . _. -
Safe & Sure - Proposed penalty - $229,800, Assessed penalty - $30,000 X ’ (“1
1) Grants extensions of time.
2) Allows supplementation of prehearing exchange.
3) Allows last minute motions.
4) Will grant motion for default.
5) Treatment of ERPs.
6) Wants a penalty witness.
/
Judge Charles E. Bullock:
Judge Bullock has been with EPA as an AU since July of 1996 From 1972 to 1996 he
worked for the Federal Energy Regulatory Commission as an AU, Assistant General Counsel and
trial attorney He graduated from the National Law Center at George Washington University.

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Record for 1998 - Judge Bullock issued 3 decisions in 1998. One of those decisions was
an Initial Decision as follows:
F C. Haab - Proposed penalty - $210,000; Assessed penalty - $68,000
1) Grants extensions of time.
2) Allows supplmentation of prehearing exchange.
3) Allows last minute motions.
4) Will grant a motion for default.
5) Treatment of ERPs.
6) Wants a penalty witness.
Judge J.F Greene:
Judge Greene became an AU at EPA in May of 1979. She served as an AU at the U.S
Department of Labor from 1975-1979 and the Social Security Administration in 1975. Before
these appointments, Judge Greene was on the enforcement trial staff at the Federal Trade
Commission. Judge Greene was elected to Phi Beta Kappa in 1958. She has a law degree from
the University of Chicago Law School.
Report Card for 1998 - Judge Green issued 5 decisions in 1998. None of these decisions
were Initial Decisions
1) Grants extensions of time.
2) Allows supplementation of prehearing exchange.
3) Allows last minute motions.
4) Will grant a motion for default.
5) Treatment of ERPs.
6) Wants a penalty witness.
,Z

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DRAFT
***PRIVILEGED CONFIDENTIAL/DO NOT RELEASE UNDER FOIA***
Standard Form to Specif .’ Federal Facility Enforcement Office Involvement in Federal Facility Cases
(Federal Facility Cases are considered Nationally Significant)
Case name:
Location of facility: City ___________________, State , Region ______
Forum(check one):
ALT (or other presiding officer) ____ EAB _____
Primary Violations (narrative or listing of sections):
Other Nationally significant issue(s) (media specific):
Type of Enforcement Action:
Compliance Order _______
Penalty Order ____________
Imminent and Substantial Endangerment Order____________
Federal Facility Compliance Agreement _________
Regional legal and program staff contacts (names, phone numbers , FAX numbers):
Nature of Federal Facility Enforcement Office involvement:
Penalty Order over $500,000 — FFEO Opt Out ____
Orders, penalty orders less than S500, 000, agreements — FFEO Opt In ____
If FFEO exercises “Opt In” please indicate involvement proposed by Region:
______ Consultation in the development of the complaint and settlement with possible
concurrence by FFEO (although need for concurrence is not anticipated).
Other
Signature: _____________ Date Signed ____________
Appropriate Regional Manager
Concur: ______________ Date Signed ___________
FFEO Manager
HQ Involvement in Case Implemented in accordance with procedures listed above.
SRES Director_________

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Federal Facilities Enforcement Office
Site Remediation and Enforcement Staff Regional Coordinators
Mary Kay Lynch, Director (202) 564-2574
Andrew Cherry Regions 6 & 8 (202) 564-25S9
Sally Daizell Region 3 (202) 564-2583
Lance Elson Regions 5 & 7 (202) 564-2577
Bill Frank Regions I & 9 (202) 564-2584
Melanie Barger Garvey Region 10 (202) 564-2579
David Levenstein Region 2 & 4 (202) 564-2591
Federal Facility-Related Enforcement Policies and Executive Orders
EPA Enforcement Policy for GOCO Facilities, January 7, 1994.
Guidance on Federal Facility Penalty Order Authority Under the Safe Drinking Water Act, as
amended in 1996, May 29, 1998.
EPA Authority to Assess An Administrative Penalty Against Another Federal Agency Under
RCRA Subtitle I, OGC Opinion dated June 16, 1998.
Guidance on Implementation of EPA ‘s Penalty/Compliance Order Authority Against Federal
Agencies Under the Clean Air Act, October 9, 1998.
Executive Order 12088 Federal Compliance With Pollution Control Standards, October 13,
1978.
Executive Order 12146 Management of Federal Legal Resources, July 18, 197g.
Most of this material can be found at http ://www.epa.gov/oeca/fedfac/policy/policy.html

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Tills ChART/S IN TENDED ASA QUICK REFERENCE TOOL FOR EPA AND IS NOTA SUBSTITUTE FOR FORMAL LEGAL RESEARCh! AND CONSULTATION
ENFORCEMENT AIJTI lOItITI ES AGAINST FEI)ERAL AGENCIES INI’ERIM FINAl.
EPA ENJI)RCEMENT AU II IORITIES
.
- J’cnalticc Orders Iedcr;iI hicilily
:- Coiiipliun c
Agreements
STATE ENI ORCEMEN’l’ ALJTI IORITIES
IMMINENT & SUBSTANTIAL
ENDANGERMENI (EI’A)
.
Pciuillics
Oitki .
Cowl
lnjuiiction
Oidei
Pci ialt ies
Yes
wastc
Yes
Yes
not applicable
(N/A)
Ycs
Yes
Ycs
\‘es
No’
Yes
(N/A)
See l’ootiiiile
Y c
Yes
Yes
Yes
Yes
ACT
Yes
N/A
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
No
Yes
Yes
\‘cc( 112(rXQ)
and 303)
No
Yes 6
Yes
Yes
Scc Footnote
Sec Footnote 6
Yes 8
Yes 7
Sec Footnotes 3 & 6
‘Penalty refers only to punitive penalties, i.e , penalties, including field citations, for past violations Even where there may be a lack of punitive penalty authority. EPA has
enforcement authority and EI’A regularly enters into compliance agreements requiring the Federal agency to correct violations pursuant to a schedule. In addition, Federal agencies are required
to comply with environmental laws regardless of penally authority by Lxccutive Order No 12055 (Fedcial Compliance with l’ollutio ,i ‘ont ,ol Standards) EPA and states retatil the lull panoply
of cnt ,r erncnt authority including puni live and coercive petiallics agallist u uiti.icti ir i p ci oh ii (. ,icli ° flu liii e” l) ticI(Ic iipplicatoi ) incltidiiig entoi ceineiit nuthot It)’ agsin t tudis iduab lu r
cnminal violations.
2 Such order authority includes RCRA §* 30 13 and 7003 and for I JS r, 9006 and 9003(h).
‘EI’A could (and should), however get stipulated penalties in conseiisual orders.
“There is no case law on punitive penalties.
5 EPA will usc * 1447 (b) penalty order authority to enforce § 1431 orders, howcvcr, as a niatter olpractice, EPA will seek only $15,000 pcr tIny per violation in accordance ss itli
private party enforcement of* 1431 orders
6 EPA may seek stipulatcd penalties, and § 109 penalties via Part 22 adiiiinistrativc hearing actions br violations oICERCLA § 120 agreements.
7 EPA may issue CERCLA unilateral administrative orders to Federal Agencies oiily with the concurrence of the Attorney General.
‘According to CERCI.A § 120 (a)(4) “state laws concerning removal and remedial action iiicluding state laws regarding enforceniciit apply at non-NPL Federal Facilities. It
appears sovereign immunity has been waived at such non-Nl’L sites. See buck of page

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This chart is intended solely as guidance for employees of the U.S. I vironmenta1 Protection Agency. Such chart does not constituLe rule
making 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 chart.

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TillS cl/ART/S IN TENDED 454 QUICK REFERENCE TOOL FOR EPA AN!) ISNOTA SUBSTITUTE FOR FORMAL LEGAL RESE .4RCII AN!) CONSULTATiON
ENFORCEMENT AUTHORITIES AGAINST I ’EDERAL AGENCIES INTERIM FINAL
EPA ENFORCEMENT AUTHORITIES
-
I’enaltici O:dci H Icclciul IiiciliIy

CoinpIi n c
Agrccmcnts
STATE ENFORCI MENT AUThORITIES
IMMINENT& SUBSTANTIAL
ENI)ANGERMENT (E PA) 0
I’cii;iII ics
( )i iIt I s
(‘ottul
lnjuni..lton
D i
I ’enultic .
under review
under review
(N/A)
Yes
paint
§
No
No
(N/A)
Yes
Ycs
Yes
(N/A)
(N/A)
Scc Footnolc 4
Sce Footnote 4
(N/A)
Yes
Ycs
Yes
(N/A)
Yes
Yes
Yes
(N/A)
Yes
No
No
No ‘°
No
Yes
No, but sec
Footiiotc 10
Yes
Yes
No
No
No
No
Yes
Sec Fuotitote
See Ioolnotc 13
See Footnote 13
N/A
Sec Footnote 12
No
Sec Footnote I 2
Yes
Sec Footnote 4
Sec Footiiote”
Footnote 13
No
See Footnote 12
No
No
N/A’ 1
No
No
Yes
No
No
No
Yes ( 3 1 1(c))
Yes
No”
Sec Footnote 15
See Footnote 15
Yes ( 31 1(e))
Sec Footnote IS
9 Statea may liavc their own equivalent m,nline,iI and aubst:,,iiu,l cuiiI uiige, iiiciut tititli ,,, ,t,es.
iO The one exception ia that the Coast (juard has penalty authority regarding § 312(n) “uuiuloriii natinii,it discliaigc stand:iids br vessels of the aimed fuiecs.” It may he 1 xissihk in sonic cases to
recover coercive penalties (e g, penalties which arc imposed prospectively such as those by a judge for violation ob a couit o,det) Coercive penalties are available under the CWA against Federal agencies
‘EI’A will ensure Lxcculivc agencies follow kaccutive Order I 2fl5 i (( iiinniIIiiity Right to Know) tliiuiighi hetteis and agicelneilts. as appropi iDle.
12 Sincc the Statute contain! no waiver of sovereign immunity and the (JuiteLl St:itcs is viitu.ihly exeltideti liwn uiveiage tinder the statute. it nppenis that the Maiuic ilues not i io ide order/penalty
authority against the United States We arc unaware of any cases which reach this issue I lowever, under FIFRA, Fcdeial agencies aic subject to stop sale, use, and removal orders.
t3 We are unaware of any cases which reach this issue.
4 EPA has authority pursuant to § 309 of the CAA to refer a matter to the Counsel for 1 nvironiiicntal Quality when EPA dctennincs that a project, regulation, etc is unsatisfactory.
‘There is no separate waiver of sovereign immunity here Tue OPA differentiates between vessels and public vessels Public vessels arc excluded from liabdity unless such essel is engaged in
commeice In adrlii,on, the Ol’A does nut include a citwcn Suit provision We arc unaware of any cases which ieacli these issues Sce bacA of ia t ’

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This thart is intended solely as guidance for employees of the U.S. mivironmental Protection Agency. Such chart does not consti e rule
making 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 chart.

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ORDERS’ AGAINST FEDERAL AGENCIES
ORDERS (TJ,\r1L41 .4L)
1. DelAmo in California against General Services Administration (GSA) 1993
Requires a 5500.000 Remedial Design
(ON CONSENT)
1. Fresno Drum in California against Department of Defense (Army Navy, Air Force, Defense
Logistics Agency) in 1998
DoD and components will pay future costs from defense environmental restoration funds.
seek a FY2000 appropriation to reimburse EPA’s past response costs.
2. Arctic Surplus in Fairbanks, Alaska with Defense Logistics Agency (DLA) 1990
Time Critical Removal at Privately-owned Site
3. Chemical Commodities. Inc . in Johnson County , Kansas with DLA 1991
Time Critical Removal
4. Shaw Air Force Base with Air Force (also issued under RCRA 3008(h)) 1990
Study of Groundwater
5. Buck’s War Surplus in Las Vegas, Nevada with DLA 1990
Time Critical Removal at Privately-owned Site
6. Paducah Gaseous Diffi.ision Plant in Kentucky with DOE 1988
Study of source of contamination found in off-site drinking water wells and take
protective action
7. Murdock in Nebraska with Department of Agriculture (also issued under Safe Drinking
Water Act 1431) 1991
Non-time critical removal (pump and treat groundwater)
RCRA 7003 ORDERS
1. Reese Air Force Base in Lubbock, Texas with Air Force 1993 (consent)
Emergency response to TCE in surrounding community
2. Norfolk Navy Shipyard Municipal Waste Combustors against Navy (unilateral) 1994
Action brought by CAA program to address dioxin emissions
‘RCRA 3008(a) compliance orders not included

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3. Washington Navy Yard in \Vashington D.C. with Navy (consent 1997
Remedial-type work ( vil1 transition to NFL cleanup later once site listed)
4. Former White Oak Naval Surface Warfare Center in Maryland (unilateral)1997
Remedial-type work
143! SAFE DRINKING W4TER ACT ORDERS
1. Murdock (see 106 above)
2. (2 of these) Dalecarlia Plant in Washington, D.C. against the Army Corps of Engineers 1993
(first unilaterally and second on consent)
Routine sampling found fecal coliform
3. (2 of these) Massachusetts Military Reservation against the Army 1997 (both unilateral)
Characterize groundwater under impact area, cease and desist firing-range training by
a date certain, address lead in berms)
4. Seneca Army Depo against the Army 1997
SECTION 1414 COMPLIAXCE ORDERS AM) SECTION 1447 PENALTY ORDERS U’IDER
THE SAFE DRINKING WATER ACT
1. Redstone Arsenal against the Army 1997 (2 of them: 1st, a unilateral 1414 compliance
order/2nd, a 1447 penalty order issued in April 1998.
2. Proposed consent order to Brookhaven National Laboratory in New York against
Department of Energy (on consent—compliance order) 1998
RCRA 3008(h) ORDERS
1. Myrtle Beach in South Carolina against the Air Force 1994 (unilateral)
(Corrective action—cleanup)
2. Shaw Air Force Base (see 106 above)
3. Altus Air Force Base in Oklahoma against the Air Force 1995 (unilateral) and negotiated
with completion in 1997.
4. ENEL in Idaho against DOT 1987 (On Consent)
5 (2). tLS.Coast Guard (IJSCG) in Kodiak. Alaska against USCG 1988 and 1992 (On Consent)
6. (2) Federal Aviation Administration (FAA) in Lake Minchumina. Alaska against FAA 1988
and 1992 (On Consent)

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7. DOE in Portsmouth. Ohio against DbE 198? (On Consent)
S. Marine Corps in Cherry Point. North Carolina against Marines 1989 (On Conseht
9. Naval Air Station in Oceana. Virginia against Navy 1991 (On Consent)
10. DOE Vest Valley.. New York against DOE 1992 (On Consent)
ii. DOE. Pantex in Texas against DOE 1990 (On Consent)
12. DOE. Kansas City Plant in Missouri against DOE 19?? (On Consent)
13. National Aeronautical and Space Administration (NASA’ in White Sands. New Mexico
Against NASA 1989 (On Consent)
14. Watervllet Arsenal in New York against the Army 1993 (On Consent)
UiVDERGRO UND STORA GE 74NK FIELD CJTA TIONS
1. U.S. Bureau of Prisons in Connecticut against DOJ in 1997
S200 Field Citation PAID
2. US Naval Support Facility in Ne’.v Orleans. Louisiana against the Navy 1997
$900 Field citation PAID
3. Oklahoma City Housing Authority against Housing Urban Development 1997
$750 Field Citation PAID
4. Federal Aviation Administration (FAM in Oklahoma City against FAA 1997
$600 Field Citation PAID
5. VA Hospital , in Shreveport, Louisiana against the Veterans Administration 1997,
$200 Field Citation PAID
6. Texas National Guard against the National Guard 1997
$50 Field Citation PAID
7. Fort Schafter in Hawaii against the Army 1997
$600 Field Citation PAID
8. Dalles Dam in Oregon against the Army Corps of Engineers 1997
$600 Field Citation

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9. BR Roads Department in \Varm Springs, Oregon against the BIA 1997
$50 Field Citation
10. John Day Darn in Oregon against the Army Corps of Engineers 1997
$600 Field Citation
11. Arnw and Air Force Exchaqge Service in Texas against the Army and Air Force 1997
$50 citation PAID
12. Bureau of Indian Affairs (BIA’ Branch of Roads (region 6) against BIA 1997
S60t) citation PAID
13. BIA Natural Resources (region 6) against BIA 1997
S600 citation PAID
14. BIA. Branch of Foresny (region 6) against BIA 1997
S600 citation PAID
15. Pine Ridge Facility Management in South Dakota against BIA 1997
S t5O citation RESCINDED (Covered in a proposed consent order)
16. Rosebud BIA Faculty Management in South Dakota against BIA 1997
S150 citation RESCIXDED (Covered in a proposed consent order)
17. Lower Brundle BIA Roads in South Dakota against BIA 1997
S200 citation RESCINDED (Covered in a proposed consent order)
18. Crow Creek BIA Facilities Management in South Dakota against BL4 1997
$250 citation RESCINDED (Covered in a proposed consent order)
UST Penally Complaints
1. Consent Order (Complaint will be filed with settlement) against BIA by Region 8
2. Tinker Air Force Base in Texas against Air Force 1998
3. Barksdale Air Force Base in Oklahoma against Air Force 1998
UST Compliants for Compliance
1. Washington Navy Yard in District of Columbia against Navy 1996
2. Anacostia Naval Station in District of Columbia against Navy 1996

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CM COMPLiANCE/PENALTY ORDERS
1. U.S. Army Armament Research. Development, and Engineering Center at Picatinny Arsenal
in New Jersey against the ARMY 1996 (compliance only)
Non-compliance with requirements under the Clean Air Act regarding prevention of
significant deterioration (PSD) in air quality — boilers
2. VA Hospital in Philadelphia against Veterans Administration 1997 (compliance only)
Noncompliance with refrigerant requirements
3. Brookhaven National Taborato ’ in New York against Department of Energ ’ 199S
Failure to comply with New Source Performance standards for boilers, failure to comply
with state implementation plan, failure to record location of asbestos-containing material
on facility deed, failure to provide proper notification for asbestos demolition and
renovation.
4. U.S. Mint in Philadelphia against the Department of Treasury 1998 (pet alty)
Noncompliance with refrigerant requirements , etc.

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FY 1998 EPA Formal Enforcement Actions at Federal Facilities
Region 1
iVo Cases Against Federal Facilities
Knolls Atomic Power LabfDOE(GOCO) S 12,750 (Final) - TSCA
Electric Boat Corporation (GOCO)fNuclear Navy- $13,600 (Final) - TSCA
Region 2
DOE/Brookhaven National Lab (2 orders)-CAA 113(a) Order
GSA/Peter Rodino Federal Building -CAA 113 (a) Order
Associated Universities (GOCO)IDOE -CAA 113(a) Order
US Army/US Military Academy—S 10,760 + $4,801 SEP (Final Order) - RCRA 3008(a) Penalty
Order
DOE/Brookhaven National Lab—579,868 (Proposed)- RCRA 3008(a) Penalty Order
DOE/Brookhaven National Lab -SDWA 1423 Order
Region 3
Department of Treasury/US Mint—S 16,000+590,427 SEP (Final Order) CAA (d) 113 Penalty
Order
US Navy/Washington Navy Yard—S33,000 (Final Order) RCRA 3008(a) Penalty Order
US Navy/Anacostia Naval Station—$36,000 (Final Order) RCRA § 3008(a) Penalty Order
US Army/Walter Reed Medical Center—S20 1,600 (Proposed) RCRA 3008(a) Penalty Order
US Army/Ft. Belvoir—525,490 (Proposed) RCRA 3008(a)
US Navy/Naval Research Lab —$27,500 (Proposed) RCRA § 3008(a)
DC Government/St. Elizabeth’s Hospital—$5 ,000 (Final)-RCRA 9006(UST)
US Army! Walter Reed Medical Center (DC facility) $57,376 (Proposed) RCRA 9006 (1.1ST)
US Navy/Naval Research Lab— $8,412 (Proposed) RCRA § 9006 (UST)
US Army/Walter Reed Medical Center (MD facility)-$36,725 (Proposed) RCRA § 9006 (1.1ST)
US Navy/Naval Air Station Oceana-55,881 (Proposed) RCRA § 9006 (UST)
US Navy/Naval Surface Weapons Center- RCRA §7003 Order
USDAJBeltville Ag. Research Center- CERCLA § 120(a) lAG
Region 4
US Navy/Charleston Naval Shipyard- CAA § 113 (a) Order
US Navy/Naval Air Station Mayport—S3 1,100 (Final Order)- RCRA § 3008(a)
Federal Law Enforcement Training Center—$6,872+2 1,450 SEP (Final) RCRA 3008(a) Penalty
Order
US Army/Ft. Campbell—$540,470 (Proposed) RCRA § 3008(a)
US Army/Redstone Arsenal— ( SS0,000+$807,000 SEPS) SDWA 1447(b) Penalty Order
US Navy/Jacksonville WWTP- CWA § 309 - Consent Order
US Navy/Mayport WWTP -CWA § 309 - Consent Order
US Navy/Naval Air Station Jacksonville - CWA § 309 - Consent Order
Region 5
None

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Region 6
US Air Force/Tinker Air Force Base—SSO,000 (Proposed)- CAA 113(d)
US Navy/Corpus Cristi Naval Air Station—$6 1,600 (Proposed) - CAA 113(d)
US Air Force/Barksdale AFB—S70,734 (Proposed) RCRA § 9006 (UST)
US Air Force/Tinker AFB—S96,703 (Proposed) RCRA § 9006 (UST)
US Army/Ft.Polk Post Exchange—S800 RCRA § 9006 Field Citation
US Army/Ft.Polk Shopette—S750 - RCRA § 9006 Field Citation
USPS/VMF—S300- RCRA § 9006 Field Citation
USFS/Duran Campground - SDWA § 14 14(g) Order
USCOE, NM -SDWA § 14 14(g) Order
US Navy/Kingsville Naval Air Station $408,375 (Proposed) TSCA (Lead Based Paint § 1018
Notification Provision)
Mason Hangar Corp. (GOCO)IDOE Pantex (2 orders)-CWA § 309
Raytheon Company (GOCO)/Corpus Christ Naval Air Station-$30,800 (Proposed) CAA 113(d)
Region 7
None
Region 8
BIA/Flandreau Indian School- UST §9006 Order
USFS Bighorn National Forest, WY- SDWA § 1414(g) Order
USFS Bridger Teton National Forest/Fremont Lake,WY SDWA § 1414 (g) Order
USFS Bridger Teton National Forest/North Fork Narrow Campground -SDWA § 14 14(g) Order
BIA, Billings,MT -CWA § 309 - Administrative Order
US COE/Big Bend - $300 - RCRA 9006 Field Citation
DOE Rocky Flats - CERCLA § 109(b) S45,000 Proposed Penalty
Region 9
US Air ForcefDavis Monthan Air Force Base—$8 1,020 (Proposed) - CAA 113(d)
DOI/BIA Dilcon Boarding School-$27,500 (Proposed)- RCRA § 3008(a)
US Army/Schofield Barracks-Clifton-S350 - RCRA § 9006 Field Citation
US Army/Schofield Barracks-AAFES Gas Station-S 150 -Field Citation
DOD Services/Fresno Drum Sites, CA- CERCLA § 122 (h) Coast Recovery Order
GSAJDelamo - CERCLA § 106 Order
Region 10
US Navy/Puget Sound Naval Shipyard- CERCLA § 120 (e) lAG
US COE/Dallas Dam-$600 (Final) -RCRA § 9006 Field Citation
US COE/John Day Dam-$600 (Final) - RCRA § 9006 Field Citation
Source: DOCKET database and discussion with Regional enforcement personnel and HQ EPA
staff.

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EPA ‘s CERCLA Section 122(e) (3) (B) Administrative Subpoena Authority
Contact: Bob Roberts, OSRE, (202)564-4267
LEGAL BACKGROUND
A. Statutory Language
Section 122 of CERCLA authorizes EPA to issue subpoenas to obtain documents
and testimony that EPA deems necessary for allocation purposes or for otherwise
implementing the statute’s settlement section.
The statute states:
“To collect information necessary or appropriate for performing the allocation
under subparagraph (A) or for otherwise implementing this section, the President
may by subpoena require the attendance and testimony of witnesses and the
production of reports, papers, documents, answers to questions, and other
information that the President deems necessary.” 42 U.S.C. §9622(e)(3)(B)
B. Case Law
Thus far, only one court has construed section 122(e)(3)(B):
The district court in United States v. Northside Sanitary Landfill , No. 89-85 (S.D.
md. May 4, 1990), upheld the ruling of a U.S. Magistrate which ordered the respondents
to comply with a 122(e)(3)(B) subpoena. The magistrate decided that EPA appropriately
issued the CERCLA subpoena to gather financial information from the respondent
companies because Congress “ [ clearly] empowered the EPA to collect information
‘necessary or appropriate’ for implementing settlements.” The magistrate noted that the
material EPA sought was relevant and material to EPA’s ongoing cleanup efforts at the
site. Had that not been the case, the magistrate may have issued an unfavorable ruling.
The following cases may also be helpful:
United States Environmental Protection Agency v. Alyeska Pipeline Service Company ,
836 F.2d 443 (9th Cir. 1988) (scope ofjudicial inquiry in an agency subpoena
enforcement proceeding is narrow).
United States v. Morton Salt Co. , 338 U.S. 632 (1950) (agency action will be upheld if it
is within the agency’s authority, the demand is not too indefinite, and the information
sought is reasonably relevant).

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C. OECA Policy/Guidance
On August 25, 1988, the Assistant Administrator issued a memorandum entitled
Transmittal of Guidance on Use and Enforcement of CERCLA Information Requests and
Administrative Subpoenas . The central points of the guidance are as follows:
> The statutory language is broad, so EPA is not required to use subpoenas only for
non-binding preliminary allocations of responsibility (NBARs).
> Subpoenas may be useful to gather information regarding the volume and toxicity
of waste at a site, the strength of the agency’s evidence, a party’s ability to pay the
response costs, public interest considerations, etc.
> EPA staff should first use 104(e) information requests to gather information.
On August 30, 1991, the Enforcement Counsel for Superfund EPA issued a
memorandum entitled Recommendations Concerning the Use and Issuance of
Administrative Subpoenas under CERCLA Section 122 . The main points of this
guidance are:
> Section 122 administrative subpoenas should be used much more frequently.
> Subpoenas may be issued in connection with or prior to formal negotiations with
PRPs, or where available information points to favorable prospects for settlement.
Subpoenas are good tools to determine if 104(e) information request recipients
have fully provided all relevant information regarding their connection to a site.
> Failure to inform a party that it may claim certain information as Confidential
Business Information may complicate and delay the use of the info gathered.
> Procedural safeguards are summarized (see below).
II. PRACTICAL IMPLICATIONS
“When” -- If “settlement is on the horizon,” a subpoena is appropriate to assist in
recovering information that will facilitate settlement.
“How” -- To ensure the subpoena can withstand a legal challenge, a subpoena should be
clear, specific, and reasonable (e.g., the recipient should be provided with plenty of lead
time to gather the information before the hearing or document production deadline).
-- The 1991 guidance states that the subpoena should include, among other
things, a statement of the Agency’s authority to issue the subpoena and a specific
description of the information required, and should be delivered by personal service or
certified mail.

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