Attachment II
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t UNITED STATES ENVIRONMENT »l PROTECTION AGENCY
WASHINGTON. C C 20460
DEC 2 6 -|99|
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SOUOwaST .\NOEwEHGENCv RESPONSE
OSWER Directive 9345.1-12
MEMORANDUM
SUBJECT: Releasability of HRS Document,
FROM: Henry L. Longest II, Direct?
Office of Emergency and Rem^dia^. Resp^se
TO: Director, Waste Management Division
Regions I, IV, V, VII, VIII
Director, Emergency and Remedial Response Division
Region II
Director, Hazardous Waste Management Division
Regions III, VI, IX
Director, Hazardous Waste Division, Region X
PURPOSE:
This memorandum is to provide guidance to the Regions on
what Hazard Ranking System (HRS) material is considered
releasable under the Freedom of Information Act (FOIA).
BACKGROUND:
The issue of what HRS materials are considered releasable
under FOIA has not been addressed consistently by all Regions. A
July 9, 1991, memorandum from Allyn Davis of Region VI requested
guidance on this issue. In addition, several other Regions have
requested guidance from my staff on issues of FOIA releasability
for NFRAP (no further remedial action planned) sites and sites
being deferred to other authorities. This memorandum responds to
those questions.
OBJECTIVE:
The objective is to ensure Regional consistency by providing
direction on releasability under FOIA of HRS documents.
P IC'-V
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DISCUSSION/IMPLEMENTATION:
The Office of General Counsel (OGC) has prepared guidance
outlining the Agency's policy regarding the releasability of HRS
information (see attachment 1). This OGC memorandum addresses
the extent to which materials prepared in the site assessment
process may be withheld as "deliberative" in response to FOIA
requests. Additional background information on the grounds for
refusing disclosure of the contents of the HRS package are
discussed in a January 16, 1986, memorandum finalizing the
decision on a FOIA appeal (attachment 2). The OGC guidance is
summarized in general terms as follows:
Materials underlying a "no further remedial action
planned" (NRAP) decision are releasable.
Draft HRS scoring sheets may be withheld.
For sites that are under consideration for the NPL, but
not yet proposed, the HRS scoring sheets, documentation
record, and factual material need not be disclosed.
HRS scores for RCRA deferral sites may be withheld.
The OGC guidance addresses our legal obligations, while pointing
out (in attachment 1) that the Agency has the flexibility to
release documents which we may legally withhold. However, it is
Agency policy not to release these documents unless we are
required to do so.
This guidance should answer many of the FOIA-related
questions that the Regions have. It should be noted that the
advice given here is general in nature, and in specific cases it
is advisable to consult a regional or OGC FOIA attorney.
cc: Janet Grubbs
George Wyeth
Alan Margolin-
Attachments
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D C 20460
MEMORANDPM
SUBJECT!
nr.T
T 1991
OFFICE OF
GENERAL COUNSEL
Treatment under FOIA of Documents Generated in Site
Assessment Process
FROM:
TO:
George B. Wyettr^^T1
Attorney / (J
Solid Waste and Emergency Response Division (LE-132S)
Alan Margolis
Attorney fl
Grants, Contracts and General Law Division (LE-132G)
Janet Grubbs
Site Assessment Branch
Office of Solid Waste and Emergency Response (OS-230)
At the May 1991 Site Assessment Section Chiefs' meeting, and
on a number of occasions more recently, questions have come up
regarding the extent to which materials prepared in the site
assessment process (particularly preliminary HRS scoring sheets)
may be withheld as "deliberative" in response to FOIA requests.1
This memorandum responds to those questions; it should be noted
that the advice given here is general in nature, and in specific
cases it is advisable to consult a regional or OGC FOIA attorney.
Moreover, this advice is not intended to bind the Agency in
connection with final agency determinations on FOIA appeals.
First to be protected under FOIA as deliberative, documents
must be (1) predecisional (i.e., prior to the adoption of an
agency policy or decision), and (2) deliberative (i.e., making
recommendations or expressing opinions on legal or policy
matters.) Draft HRS scores would generally fall within this
category. A draft that is adapted as final agency policy is no
longer protected (however, such scores are made public in the
docket at the time a site is proposed for the NPL anyway).
Documents that are not protected under FOIA are
commonly referred to as "releasable. '• It should not be inferf i
that the Agency must always exercise its right to wjthholi
documents; exercise of a FOIA exemption is a matter of Agetiv./
discretion. The Agency may choose to release deliberative or
other privileged documents; it aimply need not do so. In
general, however, the Agency's practice has been not to release
draft HRS scoring sheets, for policy reasons.
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Factual material in the agency's possession is not deliberative
and must generally be released.
One question raised at the Section Chiefs' meeting had to do
with releasing information after a site is assigned "no further
action" status ("NFRAPed"), based on its HRS score. A NFRAP
determination is neither predecisional nor deliberative and may
not therefore be withheld pursuant to the deliberative process
prong of FOIA exemption 5. Therefore, materials underlying the
NFRAP decision are not withholdable under the deliberative
process privilege or other FOIA exemptions (e.g., the final score
and supporting scoring sheets), and are considered releasable.2
Draft scoring sheets would, however, not be releasable.
A related question had to do with the status of pre]iminary
HRS scoring sheets — that is, sheets other than the
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the package need not be disclosed.3 (Of course, if the site is
later proposed, the scoring package and supporting materials
would become releasable, but they would then be made public in
the docket anyvay.)
The relationship between EPA and states raises significant
FOIA questions as well. Communications from states that are
deliberative in nature (i.e., communicating advice or opinions
regarding the potential listing of a site) appear to be
protected. Although there is only limited case law on this
point, at least one court has held that material from state
agencies sent to a federal agency for the purpose of giving the
federal agency advice on a matter under consideration is
generally privileged.
Agency staff should bear in mind that during a rulemaking
(i.e., after a site has been proposed in the Federal Register and
before it goes final), communications from states, especially
communications outside the normal course of implementing a
cooperative agreement, may present a more complex issue.
Communications in rulemaking will be discussed in a separate
memorandum.
Agency staff should also keep in mind that documents
originating at EPA and sent to states are subject to state foia-
equivalent laws. Such laws may vary in the degree of
confidentiality allowed. Regions may have to discuss with the
state agencies they deal with what the rules are in those states
before sending material that they may not want to have disclosed.
Finally, a question came up recently about whether HRS
scores for sites that have been deferred to RCRA may be withheld
If the score is in fact a preliminary draft (which is generally
the status of any HRS score for a site that has not been either
proposed for listing or NFRAPed based on the score), it need not
be released. This is not affected by the fact that the site is
no longer being considered for listing, if the reason it is no
longer being considered is deferral to RCRA rather than its hps
score. In short, HRS scoresheets for sites that have been
deferred to RCRA remain deliberative and need not be released.
I hope that this helps to answer the questions you raisoJ
If you have any further questions, please do not hesitate to
contact us.
'This is discussed further in a final determination of a
FOIA appeal that was issued on January 16, 1986. A copy of * - i
determination is enclosed herewith.
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Attachment 2
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON DC 20460
JAN I 6 1986
Janet S. Hathaway, Esq.
Public Citizen
215 Pennsylvania Ave, S.E.
Washington, D.C. 20003
RE: Freedom of Information Act Appeals
RIN 385A-85
RIN(5) 185A-85 (Region V)
RIK(6) 204A-85 (Region IV)
R1N(B) 75A-85 (Region VIII)
RIN(1) 93A-85 (Region 1)
Dear Ms. Hathaway:
This letter represents a consolidated response to your five
Freedom of Information Act (FOIA) appeals. Set forth below
Is a description of each of your FOIA requests.
1. RIN 385A-85. By letter dated January 28. 1985, you
requested copies of the list of all hazardous waste sites
for which a Superfund Hazardous Ranking Systea score ("HRS
score") had been calculated, along with the scores assigned
to those altes. You requested scores for sites which had
been Included on ehe Superfund National Priorities List
("NPL"), both final and proposed, as well as sites which the
Agency had not included on the NPL. Specifically, for each
site, you requested the following scores:
1) Potential for ham to huaans or the environment
from migration of hazardous substances (Sra);
2) Groundwater route (Sgw);
3) Surfacewater route (Saw);
4) Air route (Sa);
5) Potential for harm froa substances that can
explode or cause fires (Sfe); and
6) Potential for harm from direct contact vit^ hazardous
substances (Sdc).
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You also requested the worksheets used to calculate the
HRS, if available, for any site with an HRS score above 20.
EPA responded to this request by letter from
Walter W. Kovalick, Jr., Deputy Director, Office of Emergency
and Remedial Response, on February 15. 1985* In that letter,
you were informed chat you were receiving a lift of all HRS
scores that had been reported to EPA, except the names and
draft scores of sites then being considered for inclusion in
an upcoming revision to the NPL. You were informed that the
EPA was withholding the latter information under the deliberative
process privilege of 5 U.S.C. 1552(b)(5). Mr. Kovalick noted
that you had additional conversations with Steve Caldwell of
EPA regarding your request for HRS worksheets for sites
scoring above 20, and that you had agreed to defer requests
for copies of HRS worksheets until after you received the
list of scores. Mr. Kovallck*a letter also noted chat you
had « conversation with Steve Caldwell concerning the fact
that you would receive only HRS total scores (Sm) for 486
sites because these aites had been scored but not submitted
to Headquarters as candidates for the NPL. Accordingly, EPA
Headquarters did not have Information on the individual
pathway scores for those sites.
You appealed EPA's partial denial of your request by letter
of March 5, 1985, appealing only the denial of access to the HRS
and pathway scores of sites under consideration for Inclusion
in the upcoming revision to the NPL*
2. (5?RIN T85A-83. By letter dated March 5, 1985, to Region
V, you requested copies of HRS worksheets. Documentation Records,
EPA Form 2C70-13, and Narrative Summaries for sites listed in
that letter. You requested that EPA indicate which of the
listed sites were proposed for listing on the NPL and you
requested pathway scores for each site. You also requested
documents explaining the reasons for not including sites with
HRS scores above 28.5 on the NPL«
EPA Region V responded to your request in • July 10, 1985,
letter froa Basil G* Constantelos, Director, Waste Management
Division. With this letter you received HRS scoring documents
for 24 of the requested eltes, aa well aa two additional
sites which were withdrawn from consideration as NPL candidates.
You did not receive any documents for six sites which were
not being considered for inclusion on the NPL at this tine
but were being addressed under the Resource Conservation and
Recovery Act ("RCRA").
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These sices were:
1) Texaco Refinery, Lawrenceville, IL;
2) Conservation Chemical, Gary, IN;
3) Bendlx Corporation, South Bend, IN;
U) DuPone, E.I., East Chicago, IN;
. 5) Union Oil a/k/a Rasp Creek, Ashland Oil, Heath. OH; and
6) Wayne Disposal, Inc. Site #2, Belleville, MI.
You were also denied access to HRS documents on seven
additional altes which were being considered for Inclusion on an
NPL update. These documents were withheld pursuant to 5 U.S.C.
1552(b)(5) as predecisional, deliberative docuaents.
Since the date your appeal was filed, two of these sites,
Columbus Old Municipal Landfill #1, Columbus, IN, and Hagen
Faro, Stoughcon, HI, were proposed for the NPL. Documents
pertaining to those sites have been released to you. The
remaining five altes for which documents were withheld are:
1) Carpentersvllle, Carpentersvllle, IL;
2) Joe Boat Property, Columbus, IN;
3) Energy Cooperative, Inc., East Chicago, IN;
4) NorthEast Gravel, Grand Rapids, MI; and
5) Sanford Dump, Rives Junction, Ml.
The withheld documents for each site consisted of HRS
worksheets. Documentation Records and Reference Documenta.
No Narrative Summaries were prepared for any of the altes.
You appealed this partial denial of your request by your
letter of July 29, 1985. In this letter you appealed the denial
of access to all of the withheld records, which at this time
consist of the eleven altes set forth above.
3. (A)RIN 204A-85. On March 5, 1985, you requested from
Region IV the same type of HRS documents and information as
requested In #2 above, but for specific hazardous waste sites in
Region IV. The EPA responded by letter of April 9, 1985,
from Charlea Jeeter, Regional Administrator* With that letter
you received copies of the scoring' documents for aoat of the
altes listed in your request. You were informed that the EPA
could not locate acorlng documents for two altes in Alabama;
Unlroyal Chemical, Bay Minette, AL, and 3M Corp., Decatur, AL: as
well aa the Seaboard Coast Line Railroad site, Wilmington, North
Carolina, and SouthChea site, Durham, North Carolina. You were
Informed that you were being denied acceaa to the documents on
four other sites because the quality assurance checks had ;ioc been
completed on those sites, renderina the documents predecislcral
and deliberative under 5 U.S.C. 1552(b)(5). The withheld document*;
Included HRS worksheets, Documentation Records, and Reference
Documents; there were no Narrative Summaries prepared for the $::es.
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You appealed this parcial dental by letter of May 3, 1985.
In that latter you appealed the denial of access to the withheld
dosuments regarding the following four sites:
1) Highland's Aviation, Avon Park, Fl;
2) Beulah Landfill, Pensacola, FL;
3) Yoder Brothers, Fort Myers, Fl; and
4) Vero Beach Vellfleld, Vero Beach, FL.
Since the date your appeal was filed, records relating to
the Unlroyal Chemical, 3M Corporation and Seaboard Coast Line
Railroad sites have been located. Since the Agency has decided
not to consider these sites for listing on the NPL at this time
these documents vill be released to you directly by the
Regional Office.
Documents pertaining to the SouthChea, Beulah Landfill
Yoder Bothers, Vero Beach Vellfleld, and Highland's Aviation
aites are currently being considered for listing on the NPL
in a future update. Accordingly, docunents pertaining to
these sites are being withheld under 5 U.S.C. f552(b)(5).
4. (8)RIN_75A-85. By letter dated March 5, 1985, you
requested from Region VIII the same type of HRS documents and
information as described in request numbers 2 and 3 above,
but for specific sites located in Region VIII. FPA responded
to your request by letter of April 10, 1485, from John G. Welles-
Regional Administrator. In that letter you were informed
that you would have access to records relating to three sites,
but that records for the following three sites would be
withheld pursuant to the deliberative process privilege of
5 U.S.C. 1552(b)(5):
1) Hendricks Mill (Allied Chemical);
2) North Dakota Uranlferous Lignite Mines; and
3) Silver Creek Tailings.
The withheld records Included HRS worksheets, Documentation
Records and Reference Documents; there were no Narrative
Summaries prepared for the sites. You appealed this partial
denial by your letter of April 24, 1985, in which you requested
access to the withheld documents.
Since the filing of your appeal, the Agency has made a
final decision not to consider the Hendricks Mill and
North Dakota Uranlferous Lignite Mines sites for listing on the
NP1. at this time. The Silver Creek Tailings site was proposed
for the NPL in Update #4, September, 1985. Since a final
decision has been reached on all three sites, the site docuTents
will no longer be withheld and will be sent to you dlrecclv
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frora the Regional Office.
3. (1)RIH 93A-85. By letter dated March 5, 1985, you
requested 'from Region I the sane type of HRS documents and
information as described in request numbers 2, 3 and 4 above,
but for specific sites located In Region I. EPA responded
to your request by letter of September 16, 1985, from
Merrill S. Hohman, Director, Vaste Management Division. In
that letter you were informed that you would receive records
relating to two sites, but that HRS worksheets and Documentation
Records for three altes would be withheld. These three sites
were Andrews Road Landfill, Biddeford, Maine; Winter Harbor
Town Dump, Winter Harbor, Maine; and Brown's Septage Pit.
Peterborough, New Hampshire. These three sites are still under
consideration for listing on the NPL. However, you did
receive EPA Form 2070-13 (Site Inspection Report) for each of
the three sites and you were informed that no Narrative
Summaries had been prepared on those sites. You appealed
this partial denial of your request by your letter of September 30,
1985, in which you requested access to the withheld documents.
Ylnal Determination
The documents withheld in your appeals consist of HRS
worksheets. Documentation Records, and Reference Documents.
These records comprise the Proposed Rule HRS Package.
I have carefully reviewed each Initial denial decision and
have concluded that the documents still being withheld are
exempt froo mandatory disclosure under the deliberative .
process privilege of 5 U.S.C. 1552(b)(5). This privilege
exempts froo disclosure predeclslonal and deliberative Inter
and Intra-agency documents. HRS Packages meet these criteria.
HRS Packages consist entirely of intra-agency documents.
This term includes documents generated at the Government's
request by outside parties. Ryan v. Department of Justice.
617 F.2d 781, 789-90 (D.C. Clr. 1980). HRS Packages are
produced by eh« States and Regional EPA offleta and their
respective contractors. The materials are then forwarded to
Headquarters where they undergo quality aaaurance.
HRS Packages are alao predeclslonal and deliberative.
Predeclslonal documents are those written prior to the adoption
of an agency decision. Deliberative documents are those dlrtccly
related to the process by which agency decisions are made end
which reflect this decisionmaking proceas. HRS Packages ar#
predeclslonal and deliberative in that packaging of HRS do
occurs midstream in the ongoing deliberative process.
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Candidate Bi;es are first evaluated by State and Regional
EPA offices, whoss site recommendations are then forwarded to
Headquarters for Quality assurance and revlev. There is no
final decision to propose a site until rulemaking Is Initiated
by the Asslstarit 'Administrator. The decisions made by the State
and Regional EFA "offices represent interim steps in the
deliberative process. HRS scores are considered preliminary
until final agency action, and thus they retain protected status
untlJL this time. Prior to final agency action, for instance, durinj
the quality assurance process, there nay be insufficient informatio:
which to base a final HRS score, and the site proposal will be retu:
to the Regional EPA office or State agency for additional research
to document HRS scores. The decision to list a site nay also be
deferred pending the site's consideration under another statute,
such as RCRA. During this time the site nay still be a candidate
for the N?L and the documents retain their predecislonal
status. If the Ageney decides to take no action under either
CERCLA or RCRA, site documents may be made public.
The States and Regions lack the authority to reach a
final decision. A State recommendation for a alte Hating
may constitute the last atep in the Hazardous Ranking System
for the State, but the recommendation and supporting documents
must still be reviewed by higher authorities. Courts have
protected auch interim steps in a deliberative process.
Renegotiation Board v. Grumman Aircraft Eng. Corp.. 421 U.S.
168, 184 (1975) (divisional and regional reports, though not
final opinion, were the kind of predecislonal deliberative
recommendations contemplated by Exemption 5); Murphy v. TVA,
571 F. Supp. 502, 505 (D.C. Cir. 1983)(protection allowed for
interim decisions which the agency retained the option of
changing). Most importantly, the HRS Package documents are
drafts, which may undergo a aeries of changes and amendments
before being consolidated into « final Agency position.
HRS package documenta are predecislonal and deliberative
even though they contain scientific, factual analyses. Such
analyses reveal the Agency's deliberative process in that they
are subject to change in the Headquarter'^ quality assurance
review. See Professional Review Organization of Florida v.
HHS. 607 F. Supp. 423 (D.D.C. 1985). Further, in this instance
the analyses represent the opinions of Agency experts during
the Agency's deliberative process. See Chemical Manufacturer's
Association v. Consumer Product Safety Commission. No. 84-1852,
slip op. (D.D.C. Dec. 24, 1984). ~~
There are also strong policy reasons for withholding HRS
Package documenta under Exemption 5. The premature disclosure
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of HRS documents prior tt linal decision regarding a site
could adversely affecc tie Agency'• deliberative "process.
With untimely release Uhi LPA could be besieged with complaints
of wrongful conslderatioi rr disagreements with scores
during time which the Aginry needs to revise and finalize
its work product. Ample ojportuntity is provided to challenge
the Agency's analysis of a site after a proposed rule is
published in the Federal Riglster. The rationale behind this
policy was reiterated rerertly In Chemical Manufacturer's
Association where the Court noted that withholding scientific
Tactual documents crucial to an agency's deliberative process
"would prevent Interference with the [Agency's] experts
before their opinions are fully And finally formed."
Slip op. at 9.
Exemption 5 also protects against confusing and misleading
the public by the release of documents which suggest reasons for
a decision which are not in fact the ultimate reasons, Russell
v# D«Pt. of the Air Force, 682 F.2d. 1045» 1048-9 (D.C. Z£r.
1982). The EPA is not seeking exemption because the public
may not understand the documents, but because these documents
may suggest reasons for Agency action which are modified or
rejected In the quality assurance review process. Disclosure
of HRS documents at the point of rulemaking will not confuse
the public with distorted information and will not interfere
with the preparatory Internal deliberations of the Agency.
Finally, there has been no waiver of Exemption S privilege
for HRS Package documents merely because other documents concerning
a site, such as the Preliminary Assessments and Site Inspection
"reports, are made public. These documents are released at
the discretion of Che Agency. The fact that some information
'on a site being considered for rulemaking has been released
does not justify disclosure of HRS documents being used
during the Internal deliberations of the Agency. See Murphy
v. TVA. 571 F. Supp. at 505. Information on sites listed or
deleted from the NPL may be disclosed because a final decision
has been made. Candidate sites returned to a Regional EPA
Office or State are still candidates for NPL listing and
documents concerning them ahould be protected.
You also requested the reasoning behind the policy of not
listing some sites with HRS Scores of 28.5 or above. I
believe your question was related to a computer printout you
obtained that indicated several altea had HRS scores above
28.50, yet were not Included on the NPL. 1 understand that you
met with Harold Snyder, Chief of the Discovery and Investigation
Branch, to discuss this issue on April 12, 1984. As Mr. Snyder
explained, some of the site HRS scores were preliminary and
had not been finalized. A normal part of the Agency's quality
assurance program is to require EPA Regional Offices to
revise scores to be consistant with the proper application
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of the HRS and/or provide additional information to document,
existing acorss.
Mr. Snyder alto explained to you CERCLA restricts W*
authority eo respond to the release of certain substance*
into the environment and explicitly excludes sone substances
from the definition of a release. In addition, as a natter
of policy, EPA nay chooae not to respond to certain tvpes of
releases under CERCLA because existing regulatory or other
authority under other Federal Statutes provides for an
appropriate response. Consequently, sites which meet FPA's
HRS criteria for listing may not teeet these other eligibility
policies and therefore would not he included on the NPL.
In accordance with EPA regulations (Art CFR 9.11M
Jennifer Joy Hanson, Assistant Administrator for Fxternal
Affairs, has determined chat the release of the exempt informa-
tion would not be in the public interest. Therefore, the
exempt inforaatlon will not be released to you.
This letter constitutes EPA'a final Aeeney Determination on
your appeals. Pursuant to 5 U.R.C. 1552(a)(6) you aay obtain
de novo judicial review of this final EPA denial by complaint
Tiled in the United States District Court for the district in
which you reside or have your principal place of business,
for the district in which the records are located, or for the
District of Columbia.
Slncerelv
I.ee A. DeHihns, 111
Associate General Counsel
Grants, Contracts, and^
General Law nivlsion
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