) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
3
JUL 291993
OSWER DIRECTIVE NUMBER 9832.12-la
MEMORANDUM
SUBJECT: Supplemental Guidance on Federal Superfund Liens
FROM: William A.
Enforcement Counsel
Office of Enforcement/Superfund
Bruce M. Oiamonc
Director
Office of Waste Programs Enforcement
TO: Regional Counsels, Regions I-X
Directors, Waste Management Divisions,
Regions I-X
The purpose of this guidance document is to supplement the
"Guidance on Federal Superfund Liens" issued on September 22,
1987, by memorandum signed by Thomas L. Adams, Jr., Assistant
Administrator of the Office of Enforcement and Compliance
Monitoring (now Office of Enforcement). This Supplement is in
addition to, and does not supersede the 1987 document, which
provided criteria for the decision to file liens under Section
107(i) of the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 {CERCLA), 42 U.S.C. $ 9607(1). This
Supplement outlines procedures for Regional staff to follow to
provide notice and opportunity to be heard to potentially
responsible parties on whose property liens are to be perfected.
I. SUMMARY
The Agency should provide notice to property owners who are
potentially responsible parties ("PRPs") under CERCLA that the
Agency intends to perfect a lien on their property prior to
filing papers to perfect. The Agency will give such property
owners1 the opportunity to be heard through their submission of
documentation or through appearing before a neutral EPA official,
or both. In exceptional circumstances, EPA may perfect a lien
1 For purposes of this guidance, owner means persons
possessing title to real property or rights to such real
property, as set forth in Section 107(1)(1) of CERCLA, 42 U.S.C.
§ 9607(1).
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prior to giving notice to a property owner of EPA’S intention to
perfect the lien, but the Agency should concurrently notify the
owner and offer an opportunity to be heard at the earliest
practicable time.
The Agency should send a letter by certified mail notifying
property owners of the Agency’s intention to perfect a lien, or,
if appropriate, immediately upon perfection. The letter should
summarize the factual basis for EPA’S reason to believe that the
statutory criteria for perfecting a lien are satisfied. The
letter should inform the recipient property owner of his or her
opportunity to be heard, either by submitting documentation or by
obtaining a meeting conducted by a neutral official. The meeting
will consist of an informal proceeding in which the property
owner may provide EPA with information as to why EPA’S
assumptions require reconsideration.
II. PROCEDUREŘ
Record of Decision to File
After consulting the 1987 Guidance on Federal Superfund
Liens to determine whether the perfection of a Superfund lien is
of value, staff designated by the Region should assemble a Lien
Filing Record, bringing together in one place all the documents
relating to the decision to. perfect.
Provisions for maintenance of the Lien Filing Record are at
the discretion of the Region, and it may choose to maintain the
record in the same manner that it maintains other Superfund
records. At a minimum, however, the Region should ensure that
certain personnel are designated to add relevant documents,
maintain the integrity of the record, and make the record
reasonably available, upon request, to the property owner. The
Region may wish to have the Regional Hearing Clerk maintain the
Lien Filing Record once a property owner requests a meeting.
The following categories of documents should be assembled:
1. Documentation that the potentially responsible party is
the owner of the property, e.a. , the file contains a
deed, legal descrLptLon from a survey or tax record, a
title search, etc.
2. Documents showing that EPA has actually incurred costs
at the site (a summary report of costs is sufficient
for this purpose; underlying documentation is not
necessary).
3. Documents showing that the property owner was provided
(by certified mail) writter. notice of potential
liability, pursuant to CERCLA Section 107(1).
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4. Documents describing the property showing that the
property or that part of a property is contaminated and
shoving that the property has been subject to or
affected by a removal or remedial action. Examples
include action memoranda, removal response reports,
Preliminary Assessment or Site Inspection forms, or
National Priorities List listing documents. (The
Region may choose to include a declaration by the On-
Scene Coordinator or Remedial Project Manager (“RPM”)
incorporating these elements.)
5. Where applicable, any documents describing exceptional
circumstances which support EPA’s decision to perfect a
lien prior to offering an opportunity to be heard.
Such circumstances include instances in which the
property owner is about to take some action that would
render the property unavailable to satisfy a judgment
for clean-up costs or where EPA’s interest in the
property would be impaired. Examples include, but are
not limited to, imminent bankruptcy of the property
owner, imminent transfer of all or part of the
property, or imminent perfection of a secured interest
which would have priority under applicable state law,
or indications that these events are about to take
place. Where the Regional staff are depending on
factual information that is not a matter of public
record, they should include in the file a supporting
statement (a) from someone with first hand knowledge of
the facts, or (b) indicating the factual basis on which
the Agency proposes to act, and the source of the
Agency’s information.
The Region should continue to add relevant documents to the
Lien Filing Record, such as the following:
1. EPA’s notice of intent to file a lien (see below) sent
to the property owner, with proof of receipt (or proof
of mailing to the last known address).
2. Any documentation submitted by the property owner to
show that EPA did not satisfy the statutory criteria
for perfection of a lien or that EPA was in error when
it concluded that the criteria were satisfied. This
documentation may include correspondence, or documents
submitted at or after any meeting request by the
property owner.
3. Any responses by the Region to the property owner’s
submissions.
4. Any correspondence between the Region and the property
owner reldting to the filing of a lien.
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5. Any form of record of a meeting held regarding the
perfection of the lien.
The Region should maintain the Lien Filing Record and, upon
request made to the Regional Attorney, make it reasonably
available to the property owner.
The Notice of Intent to Perfect a Superfund Lien
This guidance includes a model notice letter (See Attachment
1) to inform the property owner of the Region’s intention to file
and perfect a notice of lien. A notice letter should be mailed
to the owner by certified mail, return receipt requested. The
letter should state that EPA intends to perfect its lien after a
set number of calendar days, e.a. , 14 days, from mailing. In the
letter, the Region should also notify the property owner of the
location and availability for review and copying of the Lien
Filing Record.
The notice of intent to perfect should contain the following
elements:
1. A statement that land records of the appropriate state
or county indicate that the recipient is the owner of
the subject property, with a citation to those records.
2. A precise identification of the property, using the
street address and a deed, or reference to a deed or
other legal description in land records.
3. Statements that: EPA has a reasonable basis to perfect
its lien; the property is a facility as defined in
CERCLA Section 101(9); the Agency has reason to believe
that the owner “owns” the facility nd that the owner
is a liable person pursuant to CERCLA Section 107(a);
the property is subject to or affected by a removal or
remedial action; and costs have been incurred by the
United States with respect to a 1 esponse action at the
property.
4. In satisfaction of CERCLA Section l07(2j (2) (8),
reference to previous written notice of potential
liability furnished to the property owner, or notice
via this letter, if notice has not already been
furnished.
5. Notice that the lien shall remain in effect until
liability for the costs is satisfied or the lien
becomes unenforceable through operation of the statute
of limitations in CERCLA Section 113.
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6 • A statement that the property owner may submit any
documents or information relevant to the issues raised
by the lien in writing to the Regional attorney
assigned to the site prior to the expiration of the
time period stated in the notice.
7. An invitation for the recipient to request, prior to
the expiration of the time period stated in the notice,
an opportunity to be heard before a neutral EPA
official. This request should be in writing and
addressed to the named Regional attorney.
8. A statement that the subject of any requested meeting
shall be whether EPA has (or had) a reasonable basis to
perfect a lien upon the property based upon the
statutory elements.
9. A statement that neither EPA nor the property owner
waives or is prohibited from asserting any claims or
defenses by the submission of information, a request
for and participation in a meeting, or a recommended
decision by the neutral official whether or not EPA has
a reasonable basis to perfect a lien.
10. Where EPA has perfected its lien prior to sending this
notice of intent, a statement describing the
circumstances that led the Agency to perfect the lien
in order to protect EPA’s interest in the property and
how those interests were about to be impaired. The
statement should further indicate that the property
owner may still make a timely request for a meeting to
demonstrate that the EPA had no reasonable basis to
perfect its lien.
Eerfection of a Lien Prior to a Meeting
The Agency may, in exceptional circumstances, perfect a lien
prior to offering or providing a property owner with a meeting.
Thus, even where the Region has notified a property owner that he
or she has an opportunity to request a meeting, under certain
exceptional circumstances, the Region may perfect a lien prior to
providing that meeting. The Region shall send notice to the
property owner, return receipt requested, immediately upon
perfection. A model letter for post-perfection notification is
included as Attachment 2. Exceptional circumstances for this
course of action include, but are not limited to, instances in
which EPA’S interest in the property could be impaired, such as
imminent bankruptcy of the property owner, imminent transfer of
all or a portion of the property, imminent perfection of a
secured interest which would have priority under applicable state
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law, or indications that these events are about to take place.
As noted in the section on the Lien Filing Record, Regional staff
should document any such circumstances in the Lien Filing Record.
While the procedures and standards to be followed for a
post-perfection meeting are similar to those for a pre-perfection
meeting, the Region should expedite to the extent possible the
holding of a post-perfection meeting, if one is requested.
Pro ertv Owner’s Response
• Failure of Property Owner To Timely Respond
If a property owner does not respond within the period set
for response, the Region may proceed to perfect the lien. At the
time of perfection, the Region should send a letter notifying the
owner of the date the lien was perfected.
• Timely response: Written Response and No Request for Meeting
If a property owner presents written documentation in a
timely manner purporting to show that the lien should not be
perfected, but does not request a meeting, the Regional site
attorney should review the documentation furnished. If the
Region agrees that the property owner has produced facts to alter
EPA’s determination that it has a reasonable basis to file the
lien, EPA should so notify the property owner.
If the Regional attorney determines that EPA still has a
reasonable basis to perfect its lien, the Region should select a
neutral official in accordance with the process described below
to review the documentation furnished. At the conclusion of the
neutral official’s review, he or she should provide the property
owner and Regional staff with a brief written recommended
decision on whether EPA has a reasonable basis to perfect a lien.
The document should set out the informational basis upon which
the recommended decision is made, and should be placed in the
Lien Filing Record, with a copy forwarded to the official in the
Region delegated with the authority to sign liens for action.
• Timely Response; Request for Meeting
If a property owner requests a meeting, the Region shall
select a neutral official in accordance with the process
described below to conduct the meeting. The neutral official
shall set up the time and location of the meeting, or offer the
property owner a meeting via teleconference.
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Meet ma Procedures
• Selection of Neutral Official
The neutral official selected by the Region should be an
attorney who is a permanent or temporary employee of the Agency
and who may perform other duties within the Agency. The person
selected should not have performed any prosecutorial,
investigative, or supervisory functions in connection with the
case or site involved.
Regions may have judicial or presiding officers already
appointed pursuant to other EPA programs who possess the
qualifications outlined above. Where the Regions do not wish to
select separate neutral officials to hear lien matters on a case—
by-case basis, they may allow these hearing officers to conduct
lien meetings.
Upon selection of the neutral official, the designated
keeper of the Lien Filing Record should provide the official with
a copy of the Lien Filing Record, which includes any written
response by the property owner and any subsequent supporting
documentation submitted by the property owner.
• Factors to Review
The neutral EPA official should consider all facts relating
to whether EPA has a reasonable basis to believe that the
statutory elements have been satisfied for the perfection of a
lien. In particular, the neutral official should consider
whether:
• The property owner was sent notice of potential
liability by certified mail.
• The property is owned by a person who is potentially
liable under CERCLA.
• The property is subject to or affected by a removal or
remedial action.
• The United States has incurred costs with respect to a
response action under CERCLA.
• The record contains any other information which is
sufficient to show that the lien notice should not be
i led.
The property owner may present information or submit
documents purporting to establish that EPA has erred in believing
that it has a reasonable basis to perfect a lien based on the
above factors, or has made a material error with respect to the
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above factors. In making his or her decision, the neutral EPA
official should consider all facts in the Lien Filing Record
established for the perfection of a lien and all presentations
made at the meeting, which will be made part of the Lien Filing
Record.
• Nature of the Meeting
The persons at the meeting normally should include the
property owner (and/or an attorney, at the property owner’s
option); Regional enforcement staff (RPM and Regional attorney
and any other appropriate Region officials); and the neutral
official.
The meeting ordinarily should be held at the EPA Regional
office. As stated above, the neutral official may offer to
conduct the meeting by telephone for the convenience of the
property owner. The neutral official should also ensure that a
record of the meeting is made. If a summary of the meeting is
prepared as a record, it should indicate who was in attendance,
what information was presented, and what issues were discussed.
Any such summary should be provided to the property owner. The
record of the meeting, and any comments submitted by the property
owner on the summary should be included as part of the Lien
Filing Record.
The neutral official should conduct the meeting as an
informal exchange of information, not bound by judicial or
administrative rules of evidence. Because of the informal nature
of these proceedings, EPA will not apply the Administrative
Procedure Act provisions for formal adjudication.
The neutral official should begin the meeting by making an
opening statement, containing the following elements:
1. The proceeding is informal, and not bound by rules of
evidence nor provisions of the Administrative Procedure
Act.
2. Neither EPA nor the property owner waives any claims or
defenses by the conduct of the meeting or the outcome.
3. The sole issue at the meeting is whether EPA has (or
had, in the case of a post-filing meeting) a reasonable
basis to believe that the statutory elements for
perfecting a lien were satisfied. The meeting will not
be concerned with issues not relating to the proposed
perfection of the lien, including, but not limited to,
EPA ’s selection of a remedy or contents of remedy
selection documents, such as records of decision or
action memoranda.
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4. The neutral official will make a recommended decision,
based on the Lien Filing Record and any new information
presented at the meeting, whether EPA has (or had) a
reasonable basis to perfect the lien.
5. The recommended decision is not admissible as evidence
in any future proceeding.
The neutral official should conduct an orderly and fair
meeting. Regional staff may present EPA’S reason to believe that
a lien may be perfected upon the property. The property owner or
his or her counsel shall have a reasonable opportunity to address
relevant issues and present his or her views. The neutral
official may also allow discussions and interchanges between the
parties, including responses to questions to the extent deemed
appropriate. It is not the Agency’s intent to provide EPA or the
property owner an opportunity to engage in direct examination or
cross—examination of witnesses. The neutral official may address
questions to the property owner or his or her counsel or to EPA’s
representatives during the meeting.
While the neutral official. should place no limitations other
than reasonableness on the type or volume of information
presented or issueč discussed, he or she may caution that only
information and issues which are relevant or material to EPA’S
decision as to whether it has a reasonable basis to perfect the
lien will be ultimately considered.
Recommended Decision
In a timely manner, the neutral official should issue a
wrjtt€ n recommended decision. The recommended decision should
state whether the property owner has established any issue of
fact or law to alter EPA’s decision to file a notice of lien and
the informational basis upon which the decision is based. The
recommended decision should contain a statement that neither EPA
nor the property owner is barred from any claims or defenses by
the recommended decision. The recommended decision should be
placed in the Lien Filing Record, with a copy forwarded to the
official in the Region delegated with the authority to sign liens
for action, and a copy sent to the property owner.
Because of the preliminary and informal nature of the
proceedings under this guidance, and the fact that the neutral
officer’s recommended decision is limited to whether EPA has a
reasonable basis to perfect the lien, the neutral official’s
recommended decision is not a binding determination ,of ultimate
liability or non-liability. No preclusive effect attaches to any
decisions made in the course of any proceeding pursuant to the
guidance, nor shall any such decisions be given deference or
otherwise constitute evidence in any subsequent proceeding.
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The Agency may subsequently provide notice of intent to
perfect a lien with an opportunity to be heard with respect to
the same property under these procedures if new information
indicates that a previous decision not to file is in error.
Except as provided by CERCLA Section 113(h), property owners
may not obtain judicial review or reconsideration of the Agency’s
decision that it has a reasonable basis to perfect a lien.
I I . P11 LAIfl
This memorandum and any internal procedures adopted for its
implementation are intended solely as guidance for employees of
the U.S. Environmental Protection Agency. They do not constitute
a rulemaking by the Agency and may not be relied upon to create a
specific right or a benefit, substantive or procedural,
enforceable at law or in equity, by any person. The Agency may
ta ’e action at variance with this memorandum or its internal
implementing procedures.
IV. PURThER I11PORXkTIO
For further information concerning this policy, please
contact Patricia Mott in the Office of Enforcement at (202) 260—
3733 or Gary Worthman in the Office of Waste Programs Enforcement
at (703) 603—8951.
Attachments (2)
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ATTAC (3NT 1.
MODEL: PRE-PERPECTION NOTICE
(REGIONAL LETTERHEAD]
UNITED STATES ENVIRONI4!N’rAL PROTECTION AGENCY
REGION ( ]
(ADDRESS]
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
(Date)
(Name and address of owner of property]
RE: [ Name and location of the site]
Dear (Name of property owner]:
This letter informs you that the United States Environmental
Protection Agency (“EPA”) intends to perfect a lien upon property
located at [ Street address], the exact legal description of which
is contained in Attachment 1 to this letter. The Property is
part of the ( ] Superfund Site. EPA has determined that you
are the owner of this property (the PropertyN). The lien which
EPA intends to perfect against the Property arises under Section
107(3j of the Comprehensive Environmental Response, Compensation,
and Liability Act (“CERCLA”), commonly known as the “Superfund,”
42 U.S.C. S 9607Q.). The lien is intended to secure payment to
the United States of costs and damages for which you, as the
owner of the Property, would be liable to the United States under
Section 107(a) of CERCLA, 42 U.S.C. S9607(a).
Under CERCLA Sections 107(a) and 101(9), 42 U.S.C. SS9607(a)
and 9701(a), liable persons include persons who own-any
“facility,” including a site or area where a hazardous substance
has been deposited, stord, disposed of, or placed, or otherwise
come to be located. EPA has determined that a release or threat
of release of hazardous substances pursuant to CERCLA Section
101(22) has occurred at or from the Property. The Property is
part of the ( ] Superfund Site, at which (hazardous substances]
came to be located, and is subject to or affected by a removal or
remedial action. As the owner of a facility, you are a person
liable for all costs of removal or remedial action at the site.
Costs and damages include the costs incurred by the United States
in responding to a release or threat of release at the [
Superfund Site.
The lien arising in favor of the United States on the
Property continues until the liability for the costs is satisfied
or until the liability for the costs becomes unenforceable
through operation of the statute of limitations in CERCLA Section
113.
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On (date), EPA notified you by certified or registered mail
of your potential liability under CERCLA (or EPA hereby furnishes
notice, if notice has not already been furnished.] You may avoid
the perfection of a lien upon your property by paying all costs
and damages for which you are liable.
EPA has assembled a Lien Filing Record consisting of
documents relating to its decision to perfect the lien. This
record is kept at the following address, and may be reviewed and
copied at reasonable times by arrangement with:
C Regional Attorney)
[ Address and Telephone Number]
EPA has reviewed the information in the Lien Filing Record
and believes that the Agency has a reasonable basis to believe
that the statutory elements for perfecting a lien are satisfied.
After [ 14 calendar days or other period, set by the Region) from
the date of this letter, EPA intends to transmit a notice of lien
to [ the appropriate office within the state (or county or other
goverrunenta]. subdivision), as designated by State law, where the
real property is located, or with the District Court of the
United States for the district in which the real property is
located]. The effect of this filing is to perfect the lien upon
your property.
You may notify EPA within (14 calendar days or other period,
set by the Region] from the date of mailing of this letter in
writing if you believe EPA ’s information or determination is in
error. You may also request to appear before a neutral EPA
official to present any information that you have indicating that
EPA does not have a reasonable basis to perfect a lien. You
should describe in your latter or written request your reasons
for believing that EPA do•s not have a reasonable basis to
perfect its lien, becauss EPA may, as described below, agree with
your reasons and reconsider its intention to perfect a lien
without further review or a meeting. Any written submissions or
requests for a meeting should reference the Superfund Site, be
addressed to the above referenced Regional Attorney, and may
include documents or information which support your contentions.
If EPA receives a written submission or a request for a
meeting from you within [ 14 calendar days or other period, set by
the Region] from the date of nailing of this letter, Agency staff
will review your submission or request for a meeting. If, after
review and consultation, EPA agrees that the Agency does not have
a reasonable basis upon which to perfect a lien, EPA will not
perfect its lien, and will so notify you. If EPA disagrees, the
written submission or request will be referred to a neutral EPA
official selected for the purpose of reviewing the submission or
for conducting the meeting, along with the Lien Filing Record.
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If you have requested an opportunity to appear, a meeting
will be scheduled. You may choose to attend this meeting via
teleconference. The Agency will be represented by its
enforcement staff, including a representative from the Office of
Regional Counsel. You may be represented by counsel at this
meeting.
The meeting will be an informal hearing in which you may
provide EPA with information as to why the Agency’s assumptions
require reconsideration. The meeting will not be conducted using
rules of evidence or formal administrative or judicial
procedures. The sole issue at the meeting would be whether EPA
has a reasonable basis to perfect a lien based upon C CLA
Section 107 (. ).
After reviewing your written submissions, or conducting a
meeting, if one is requested, the neutral EPA official will issue
a recommended decision based on the Lien Filing Record. The
recommended decision will state whether EPA has a reasonable
basis to perfect the lien and will be forwarded to the Agency
official delegated to execute liens for action. You will be
notified of the Agency’s action (whether perfection or the
decision not to perfect) and furnished a copy of the recommended
decision.
Neither you nor EPA waives or isprohibited from asserting
any claims or defenses in any subsequent legal or administrative
proceeding by the submission of information, a request for and
participation at a meeting, or recommended decision by the
neutral EPA official that EPA has a reasonable basis to perfect a
liefl.
If you have any questions pertaining to this letter, please
contact (ORC attorney] at (
Sincerely,
Waste Management Division Director/Regional Counsel/Regional
Administrator
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ATTACHMENT 2
MODEL: POST-PERPECTION NOTICE
(REGIONAL LETrERNEAD]
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION ( ]
(ADDRESS)
CERTIFIED MAIL
RETURN RECEIPT REOUESTED
(Date)
(Name and address of owner of property]
RE: (Name and location of the site]
Dear (Name of property owner]:
This letter informs you that the United States Environmental
Protection Agency (“EPA”) has perfected a lien upon property
located at (Street address], the exact legal description of which
is contained in Attachment 1 to this letter. The Property is
part of the ( ] Superfund Site. EPA has determined that you
are the owner of this property (the “Property”). The lien which
EPA has perfected against the Property arises under Section
107( ) of the Comprehensive Environmental Response, Compensation,
and Liability Act (“CERCLA”), commonly known as the “SuperZund,”
42 U.S.C. S 9607(1). The lien is intended to secure payment to
the United States of costs and damages for which you, as the
owner of the Property, would be liable to the United States under
Section 107(a) of CERCLA, 42 U.S.C. S9607(a).
Under CERCLA Sections 107(a) and 101(9), 42 U.S.C. SS9607(a)
and 9701(a), liable persons include persons who own any
“facility,” including a site or area where a hazardous substance
has been deposited, stored, disposed of, or placed, or otherwise
come to be located. EPA has determined that a release or threat
of release of hazardous substances pursuant to CERCLA Section
101(22) has occurred at or from the Property. The Property is
part of the ( ] Superfund Site, at which (hazardous substances]
came to be located, and is subject to or affected by a removal or
remedial action. As the owner of a facility, you are a person
liable for all costs of removal or remedial action at the site.
Costs and damages include the costs incurred by the United States
in responding to a release or threat of release at the ( ]
Superfund Site.
The lien arising in favor of the United States on the
Property continues until the liability for the costs is satisfied
or until the liability for the costs becomes unenforceable
through operation of the statute of limitations in CERCLA Section
113.
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On (date], EPA notified you by certified mail of your
potential liability under CERCLA. You may satisfy the lien
placed upon your property by paying all costs and damages for
which you are liable.
EPA has assembled a Lien Filing Record consisting of
documents relating to its decision to perfect the lien. This
record is kept at the following address, and may be reviewed and
copied at reasonable times by arrangement with:
(Regional Attorney]
(Address and Telephone Number)
EPA has reviewed the information in the Lien Filing Record
and believes that the Agency has a reasonable basis to believe
that the statutory elements for perfecting a lien are satisfied.
EPA has perfected its lien by filing a notice of lien with (the
appropriate office within the state (or county or other
governmental subdivision), as designated by State law, where the
real property is located, or with the District Court of the
United States for the district in which the real property is
located]. EPA perfected its lien prior to notifying you of its
intention because (
You may notify EPA within (14 calendar days or other period,
set by the Region] from the date of mailing of this letter in
writing if you believe EPA’S information or determination is in
error. You may also request to appear before a neutral EPA
official to present any information that you have indicating that
EPA did not have a reasonable basis to perfect a lien. You
should describe in your letter or written request your reasons
for believing that EPA did not have a reasonable basis to perfect
its lien, because EPA may, as described belo , agree with your
reasons and release its lien without further review or a meeting.
Any written submissions or requests for a meeting should
reference the Superfund Site, be addressed to the above
referenced Regional Attorney, and may inc]ude documents or
information which support your contentions.
If EPA receives a written submission or a request for a
meeting from you within C14 calendar days or other period, set by
the Region] from the date of mailing of this letter, Agency staff
will review your submission or request for a meeting. If, after
review and consultation, EPA agrees that the Agency did not have
a reasonable basis upon which to perfect a lien, EPA will release
its lien, and will so notify you. If EPA disagrees, the written
submission or request will be referred to a neutral EPA official
selected for the purpose of reviewing the submission or for
conducting the meeting, along with the Lien Filing Record.
If you have requested an opportunity to appear, a meeting
will be scheduled. You may choose to attend this meeting via
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teleconference. The Agency will be represented by its
enforcement staff, including a representative from the Office of
Regional Counsel. You may be represented by counsel at this
meeting.
The meeting will be an informal hearing in which you may
provide EPA with information as to why the Agency’s assumptions
require reconsideration. The meeting will not be conducted using
rules of evidence or formal administrative or judicial
procedures. The sole issue at the meeting would be whether EPA
had a reasonable basis to perfect its lien based upon c c
Section 107(1).
After the reviewing your written submissions, or conducting
a meeting, if one is requested, the neutral EPA official will
issue a recommended decision based on the Lien Filing Record.
The recommended decision will state whether EPA had a reasonable
basis to perfect the lien and will be forwarded to the Agency
off icial delegated to execute liens for action. You will be
notified of the Agency’s action (whether the lien will stay in
place or be released) and furnished a copy of the recommended
decision.
Neither you nor EPA waives or is prohibited from asserting
any claims or defenses in any subsequent legal or administrative
proceeding by the submission of information, a request for and
participation at a meeting, or recommended decision by the
neutral EPA official that EPA has a reasonable basis to file a
lien.
If you have any questions pertaining to this letter, please
contact (ORC attorney] at (
Sincerely,
Waste Management Division Director/Regional Counsel/Regional
Administrator
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