DOCUMENT BANK
CERCLA BRANCH
OFFICE OF REGIONAL COUNSEL
REGION IV
U.S. ENVIRONMENTAL PROTECTION AGENCY
VOLUME I
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2B§tis3k 2$0,
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ORDERS
O. Access (See under GENERAL RESPONSE ACTIONS)
H. Removal -- Participate and Cooperate
• Fuels and Chemicals Site
ADMINISTRATIVE DISCOVERY
1. 104e Information Request tetter
1. Piercing the Corporation
• Sapp Battery
• jfd Channel Masters
J. CBRCXaA S122 Subpoena
1. Examples
• Hevi Duty Electric
• Tri-City Industrial Disposal Site - Includes
Ltrs to OE and, DOJ Requesting Concurrence on
Issuance of Subpoena
• Zellwood
2. Guidance
3. Procurement Order Information for EPA seeking to
Subpoena non-EPA employees
K. FOIA
1. Sample Response Letters
2. Guidance - Confidential Business Information:
Interim Rule
L. Paperwork to Assert Deliberative Process Privileges
(No documents at this time)
SETTLEMENTS
M. De Minimis Settlement - Includes 10 Point Settlement
Analyses (CD) or Settlement Justification (AOC) as
appropriate
1. Innocent Landowners
• Rock Hill
2. Operator
• Wilson Concepts - Settlement Justification
3. Generator
(To be added)
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De Eficromis Settlement Document
• Draft Model letter
Prospective Purchaser Settlement
• Bumper's Distribution Site
• Florida Steel
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GENERAL RESPONSE ACTIONS
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CONGRESSIONAL RESPONSES
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
V. .0 REGION IV
BBO«tC
345 COURTLAND STREET. IM.E.
ATLANTA. GEORGIA 30365
Honorable H. Martin Lancaster
House of Representatives.
Washington, D.C. 20515-0909
Dear Mr. Lancaster:
The purpose of this letter is to respond to your inquiry of
February 27, 1993, on behalf of Mr. W. Harrell Everett, Jr.,
Attorney at Law, and his client, K & L Scrap Service, Inc.,
regarding the actions of the Environmental Protection Agency
(EPA) at the Bypass 601 Groundwater Contamination Superfund Site
(the Site), in Cabarrus County, Concord, North Carolina, pursuant
to the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA).
The Site is defined as an area located on the western edge of
Concord, North Carolina, in which groundwater is contaminated by
multiple sources of lead. The Site consistis of the Martin Scrap
Recycling (MSR) facility, an inactive battery salvage and
recycling operation, as well as ten (10) additional source areas
which have contributed to groundwater lead contamination. These
ten (10) additional source areas include private residences, as
well as private operating and non-operating small businesses,
where contamination linked to the MSR facility was discovered.
The MSR facility derived its revenues from the recovery of
several types of scrap metal, most notably lead, which was
recovered from scrap vehicle batteries. The batteries were
"cracked" by sawing off the tops with an electric saw. The acid
from the batteries was drained, and lead plates were then removed
for sale as scrap metal. The Site has been contaminated with the
wastes from the batteries and battery casings, which included
sulfuric acid and lead.
EPA has located, and sent General Notice Letters and Information
Requests to, approximately 250 lead battery generators who have
been linked to the Site through copies of sales receipts. These
generators are defined as potentially responsible parties (PRPs)
according to Section 107 of CERCLA, 42 U.S.C. § 9607.
Additionally, each of the PRPs who received a General Notice
Letter from EPA generated at least 400 pounds of batteries for
disposal at the Site. Mr. Everett's client, K & L Scrap Service,
Inc., was named as a PRP because it disposed of lead batteries at
the Site.
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Mr. Everett's main concerns, as they relate to his client, stem
from EPA's dissemination of information to a small group of PRPs
who have formed a steering committee to effect successful
negotiations with EPA. Mr. Everett's letter refers to a "waste-
in list", which breaks down the contribution of each of the PRPs
to the Site based upon evidence collected by EPA and evidence
submitted by PRPs through Information Requests. EPA has begun
compiling such a document, but because EPA has not yet received
responses from all of the PRPs, the document is incomplete, and
is still in draft form. A finalized version of the "waste-in
list" will be released to PRPs in the near future when Special
Notice Letters are issued.
Additionally, Mr. Everett claims that EPA is withholding
information regarding an additional 1200 PRPs EPA was unable to
locate. Apparently Mr. Everett is unaware of discussions between
the PRP steering committee and EPA, in which the information was
requested and released pursuant to the Freedom of Information Act
(FOIA). As a member of the steering committee, Mr. Everett
should have access to this information. Notwithstanding, Mr.
Everett shall receive an additional copy of this information.
EPA is committed to working with the PRPs at the Site in order to
effectuate a cleanup. As a result, all information relevant to
joint efforts will be provided, as soon as it is available in
releasable form.
If I may be of further assistance, please do not hesitate to
contact me.
Sincerely yours,
Patrick Tobin
Acting Regional Administrator
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
345 COURTLANO STREET. N.E.
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All of the response activities at the Site to date have been paid
for by the Superfund. As of August 31, 1992, EPA has spent
approximately $1,375,000 to address the environmental dangers
posed by the Site. Total cleanup costs may ultimately exceed $3
million.
As with all Superfund sites, EPA has sought to identify those
parties who may be held responsible for cleanup costs in
accordance with the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. 9601 et sag..
("CERCLA"). Pursuant to Section 107(a)(1) of CERCLA, 42 U.S.C.
Section 9607(a)(1), the current owner of a site may be held
liable for all response costs incurred by the United States that
are not inconsistent with the national contingency plan. States
and local governments are excluded only to the extent that they
acquire title to the property involuntarily by virtue of their
function as sovereigns, such as tax delinquency or abandonment.
Otherwise, they are subject to the provisions of CERCLA to the
same extent as any nongovernment entity. (Section 101(20)(D) of
CERCLA, 42 U.S.C. Section 960-1 (20) (D)). The Development
Authority, as a quasi-governmental unit and political subdivision
of the State, is subject to this provision.
Section 107(b)(3) of CERCLA, 42 U.S.C. Section 9607(b)(3),
establishes a defense to liability applicable to innocent
landowners. In order to qualify for this defense, the landowner
must establish, among other things, that at the time of
acquisition, he did not know or have reason to. know of the
disposal of the hazardous substances on the property and
demonstrate that he conducted all appropriate inquiry into the
previous ownership and uses of the property consistent with good
commercial or customary practice. In this case, the property in
question had been used for industrial purposes since the 1920's.
The Development Authority has not provided EPA with any
information to indicate that it undertook any inquiry whatsoever
prior to acquisition as to previous ownership and use of the
property. In addition, it appears that the Development Authority
purchased the property from SBA for a purchase price
significantly below the then current market- value. Under these
circumstances, it is our conclusion that the Development
Authority does not qualify as an innocent landowner.
In any event, in seeking to resolve the issue of liability, EPA
considers ability to pay. He have had several settlement
discussions with the Development Authority and have asked for
documentation regarding its financial condition. We have also
filed a lien against the property in the hope of recovering at
least some portion of the money spent to cleanup the Site which
has enhanced the value of the Development Authority's property.
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If you have any other questions regarding this matter or if I may
be of further assistance, please do not hesitate to contact me.
Sincerely yours^
Greer' C lSfldwell
RegionalV Administrator
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ACCESS FORMS
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I s UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
\ REGION IV
345 COURTLAND STREET. N.E.
MAR 9 1993 ATLANTA. GEORGIA 3Q365
Mr. William T. Diamond, Jr.
Fonville & Diamond
203 East Main Stxreet
Suite 300
Jackson, Tennessee 38301
Re: Velsicol/Hardeman County Landfill Superfund Site
Dear Mr. Diamond:
The purpose of this letter is to confirm our telephone conversation
of March 9, 1993, at which time you stated that your client,
Patricia Vannucci, has granted the Environmental Protection Agency
("EPA") and Velsicol Chemical Corporation ("Velsicol") access to
the property generally known as the T. F. Cannovan Estate for the
purpose of installing and maintaining groundwater monitoring wells.
You informed me that your client will immediately sign the Access
Agreement that Felicia Barnett mailed to you on March 3, 1993, and
that your client will return it to you for forwarding to the
Agency. Moreover, you agreed to send the signed Agreement to my
attention to avoid further delay.
Please be aware that if the signed Access Agreement is not received
by March 19, 1993, the Agency will seek to obtain access to the
T. F. Cannovan Estate through an action in the United States
District Court.
Thank you for your cooperation in this very important matter.
Should you have any questions or comments, please do not hesitate
to contact me at (404) 347-2641, extension 2279.
Sincerely,
Susan Munger
Assistant Regional Counsel
cc: Felicia Barnett
Craig Schellbach
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ACCESS AUTHORIZATION
I, Patricia Vannucci, of legal age do, herteby, DECLARE that:
1. I am the legal owner of the property located in Hardeman
County, Tennessee, commonly referred to as the T. F. Cannovan
Estate.
2. I expressly grant authorization to the United States
Environmental Protection Agency (EPA), its officers, employees,
contractors) and Velsicol Chemical Corporation and its authorized
representatives and contractor(s) access to the T. F. Cannovan
Estate for the following purposes*
a. installing and maintaining two sets of groundwater
monitoring wells.
b. performing routine monitoring functions.
c. based on the data from the monitoring wells, installing and
maintaining 1 to 2 extraction wells and piping to a
treatment, system.
d. removal of wells.
3. The consent for access and use granted herein will commence on
March 4, 1993, and will continue for 18 months thereafter.
4. I realize that EPA's need for access and use of my property,
mentioned in paragraph two of this Access Authorization, are
undertaken pursuant to its response and enforcement
responsibilities under the Comphrehensive Environmental, Response,
Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9601
et seq., as amended by the Super fund Amendments and Reauthorization
Act ("SARA"), Public Law 99-499.
5. By granting this authorization, I do not assume any liability
in relation to the Velsicol/Hardeman County Landfill Superfund Site
and do not waive any right that I may be entitled to.
DATE
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
345 COURTLAND STREET. N E
ATLANTA. GEORGIA 3Q365
JAN 2 5 1993
4RC
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mrs. Patricia Vannucci
11352 Cuttyhawk Cove
Cypress, California 90630
Res Unilateral Administrative Order - Velsicol/Hardeman County
Landfill Superfund Site, Hardeman County, Tennessee
Dear Ms. Vannucci:
The purpose of this letter is to transmit to you the enclosed
Unilateral Administrative Order (the "Order"), issued by the
United States Environmental Protection Agency ("EPA") pursuant to
Section 104(e) of the Comprehensive Envirpnmental Response,
Compensation and Liability Act, as amended, 42 U.S.C. Section
9604.(e)• Pursuant to the terms of the Order, you are required to
provide EPA access to the property located in Hardeman County,
Tennessee and generally known as the the T. F. Cannovan Estate
for a period of 48 months from the effective date of this Order.
Velsicol Chemical Corporation through its representative, Mr.
Craig Schellbach, has made numerous attempts to contact you and
your counsel, Mr. William T. Diamond, in an effort to obtain
access to your property for the purpose of installing two sets of
monitoring wells. Susan Munger of the Office of Regional Counsel
has contacted Mr. Diamond on several occasions in an effort to
obtain access to your property.
On or before the effective date of the Order, you are required to
notify EPA of your intention to comply with the terms of the
Order. The effective date of the Order is set forth in Section
IX of the Order. Failure to provide the requisite notice to EPA,
in writing, will constitute a violation of the Order. A civil
penalty of up to $25,000 per day may be assessed for any
violation of the Order.
Printed on Recycled Paper
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If you have any technical questions relating to the enclosed
Order please contact Felicia Barnett at (404) 347-7791. If you
have any legal questions, please direct them to Susan Hunger,
Assistant Regional Counsel, at (404) 347-2641 ext. 2279.
Sincerely your
Joseph R. Franzmathes
Director
Waste Management Division
Enclosure
cc: William T. Diamond, Esquire (w/ enclosures)
Craig Schellbach (w/ enclosures)
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BEFORE THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
In the matter of
Unilateral Administrative
Order Directing
Compliance with Request for
Access to Conduct Remedial
Action•
Patricia Vannucci
Respondent
EPA Docket No.: 93-05-C
UNILATERAL ADMINISTRATIVE ORDER
I. JURISDICTION
This Administrative Order is issued on this date pursuant to
Section 104(e)(5). of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C.
Section 9604(e)(5), as amended by the Superfund Amendments and
Reauthorization Act of 1966, Pub. 1. 99-499 (SARA). This
Administrative Order is issued to Mrs. Patricia Vannucci
(Respondent) as owner of the T. F. Cannovan Estate pursuant to
the authority vested in the President of the United States by
Section 104(e)(5) of CERCLA and delegated to the Administrator of
the United States Environmental Protection Agency ("EPA"): oh
January 23, 1987, by Executive Order 12580,. 52 Federal Register
2923, and further delegated to the Regional Administrator of
Region IV, and redelegated to the Director, Waste Management
Division.
This Administrative Order requires Respondent to grant EPA entry
and access to all portions of certain property constituting the
T. F. Cannovan Estate as such term is defined below, for the
purpose of installing groundwater monitoring wells. This
Administrative Order further requires Respondent to refrain from
interfering with access to the T. F. Cannovan Estate by EPA and
its authorized representatives for the purpose set forth herein.
For the purposes of this Order, EPA finds that:
A. The subject property of this enforcement action, the
T. F. Cannovan Estate, is owned by Mrs. Patricia Vannucci and is
one-half mile north of the Velsicol/Hardeman County Landfill
II. STATEMENT OF PURPOSE
III. FINDINGS OF FACT
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Superfund Site. The T. F. Cannovan Estate is approximately 385
acres in size as described in the attached tax record information
and vicinity map.
B. The property known as the Velsicol/Hardeman County
Landfill Superfund Site (the "Site"), was owned by the Velsicol
Chemical Corporation ("Velsicol") until 1985. Sometime after
1985 Velsicol transfered title to the Site to a related entity
known as Farley/Northwest Land Management Company. Velsicol is
incorporated in the State of Delaware, with its principal place
of business in Rosemont, Illinois and is not a party to this
action.
C. The Site is a 242 acre parcel of land bounded by the
Toone-Teague road to the west and the Pugh Creek to the east.
The Site is located approximately one mile south of Clover Creek
which accepts flow from Pugh Creek.
D. Velsicol Chemical Corporation specifically purchased the
242 acre parcel for use as a landfill to dispose of waste from
its plant in Memphis, Tennessee. The landfilling operation
commenced in October 1964 and continued until June 1973. Waste
was disposed of in three specific disposal areas which covered a
total area of approximately 27 acres.
E. It has been estimated that an equivalent of
approximately 129,800 drums of waste from Velsicol's plant in
Memphis, Tennesee were disposed of in the landfill. These wastes
contained various chemical constituents including carbon
tetrachloride, chloroform, heptachlor, chlordane, chlorobenzene,
and acetone.
F. In 1978, the State of Tennessee, the United States
Geological Service (USGS), EPA, and Velsicol commenced numerous
groundwater surveys of the Site and surrounding areas. These
surveys identified drinking water wells adjacent to the Site
which were contaminated with chlorinated hydrocarbons, including
carbon tetrachloride and chloroform.
G. In 1979, an alternate potable water supply was provided
to residents located adjacent to the disposal area. A low
permeability clay cap was constructed by Velsicol over the
surface of the disposal areas. The clay cap was completed in
October, 1980 and a long-term monitoring and maintenance program
has been on-going since that time.
H. In 1982, EPA listed the Site on the National Priorities
List ("NPL") as defined in Section 105 of CERCLA, 42 U.S.C.
Section 9605.
I. In 1984, Velsicol, under EPA and state oversight,
detected carbon tetrachloride and chloroform in the groundwater
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next to Pugh Creek, which forms the natural .eastern boundary of
the Site. Exposure to chloroform and carbon tetrachloride poses
a potential threat to human health and the environment.
J. In 1988, EPA Region IV became the lead Agency and
entered into an Order on Consent with Velsicol to complete the
Remedial Investigation/Feasibility Study ("RI/FS"). The RI and
FS reports were finalized in March 1991.
K. The findings of the RI confirmed the presence of
chlorinated pesticides and related compounds in Site soils and
groundwater corresponding to the wastes identified by Velsicol.
Contamination, specifically chloroform and carbon tetrachloride,
was detected in the shallow groundwater approximately one mile
from the Site, prior to the aquifer (groundwater) discharging to
Clover Creek.
L. Volatile compounds such as carbon tetrachloride and
chloroform have been detected in the shallow aquifer at the
greatest distance from the Site. The more persistent compounds
such as Endrin and Heptachlor were found only in the groundwater
directly beneath the Site.
M. The T. F.Cannovan Estate is located downgradient from
the source of contamination at the Velsicol/Hardeman County
Landfill Superfund .Site. Groundwater and contaminants in the
groundwater continue to flow from the Site towards and through
Respondent's property. The groundwater beneath the property is
generally believed to be contaminated with constituents from the
landfill based on groundwater sampling from the surrounding area.
N. A Record Of Decision ("ROD") setting forth the EPA's
selected remedy for the Site was issued on June 27, 1991. The
remedy requires treatment of the groundwater contamination at the
Site.
0. Pursuant to an Unilateral Administrative Order ("UAO"),
EPA has ordered Velsicol to perform the remedy set forth in the
ROD. To perform the Remedial Action ("RA"), Velsicol must
install monitoring wells in areas near, or potentially affected
by, the Site-related contaminated groundwater plume including on
the T. F. Cannovan Estate.
P. Velsicol'a representative, Mr. Craig Schellbach, met
with Respondent's attorney, Mr. William T. Diamond, on Tuesday,
July 28, 1992, in an effort to obtain access to the
T. F. Cannovan Estate. Mr. Schellbach had already written to
Respondent summarizing the remedial activities at the Site and
Velsicol's need to perform additional monitoring for groundwater
contamination on her property. Mr. Diamond indicated during the
July 28, 1992, meeting that access to the property for the
purpose of installing monitoring wells could only be obtained
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through purchase of the property. Mr. Diamond indicated that he
was not amenable to the provision of an easement or purchase of a
portion of the property. He also'stated thfit his client desired
to sell' the entire property at the "fair market value" and that
the asking price was $193,000.00.
Q. On September 23, 1992, Mr. Schellbach contacted Mr.
Diamond and, on behalf of Velsicol Chemical Corporation, offered
in writing to purchase the entire 385 acres of the T. F. Cannovan
Estate for the fair market value of §77,100.00as determined by
a local appraiser.
R. Alternatively, Velsicol offered to purchase an easement
for the installation of the monitoring wells at $200.00 per acre.
Mr. Schellbach estimated that Velsicol would only require two
acres of the property to accomplish its task.
S. Mr. Diamond never responded to Velsicol's written
offers. In October 1992, EPA contacted Mr. Diamond to discuss
access and Velsicol's written offers and was informed by Mr.
Diamond that he was not entertaining Velsicol's September 1992
offer. He also stated that he intended to obtain his own
independent appraisal of the property. The Agency most recently
attempted to contact Mr. Diamond by written correspondence on
November 17, 1992. A reply has never been received.
Additionally, the Agency has left numerous messages with Mr.
Diamond's secretary as well as on his answering machine. As of
the date of this Order, Mr. Diamond has not informed the Agency
of plans he has made for a second appraisal nor has he responded
to the Agency's November 17, 1992, correspondence or subsequent
telephone calls.
T. Unless officers, employees and representatives of EPA
are allowed access to the T.F. Cannovan Estate for the specific
purpose of installing and maintaining monitoring wells, cleanup
activities at the Site will have to be postponed, the threat to
human health and the environment will be allowed to continue and
remedial costs will escalate.
IV. DETERMINATIONS OF LAW
Based upon information available on the date of issuance of this
Administrative Order, the Regional Administrator of EPA makes the
following Determinations of Law:
A. Carbon tetrachloride and chloroform are hazardous
substances as defined in Section 101(14) of CERCLA, 42 U.S.C.
Section 9601(14).
B. There has been a release of a hazardous substance from
the Site which requires a response action.
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C. Entry to the property is authorized under Section
104(e)(1) of CERCLA, 42. U.S.C. Section 960^(e)(l), for the
purpose of determining the need for response or choosing or
taking any response action under CERCLA.
D. Entry to the property is necessary to effectuate a
response action for the Velsicol/Hardeman County Landfill
Superfund Site.
V. PARTIES BOUND
A. This Order shall apply to and be binding upon
Respondent and her agents, successors and assigns. No change in
ownership or corporate or partnership status, will in any way
alter Respondent's responsibilities under this Order.
B. Respondent shall provide a copy of this Order to any
person other than EPA or EPA's authorized representatives to whom
Respondent allows access to the property for any purpose
including any tenant.
VI. ORDER
Based upon the foregoing Findings of Fact and Determinations of
Law, it is hereby Ordered pursuant to Section 104(e) of CERCLA,
42 U.S.C. Section 9604(e) that Respondent provide EPA access to
the T. F. Cannovan Estate for the purpose of conducting
activities required to complete the Remedial Action at the Site
in accordance with the following paragraphs:
A. Respondent shall provide Velsicoi and its contractors
and EPA and its contractors unimpeded access to the property
known as the T. F. Cannovan Estate, located in Hardeman County,
Tennessee, for the purposes set forth herein. The activities to
be undertaken by Velsicol and its representatives on the property
during the Remedial Action include, but are not limited to:
i. installing and maintaining two sets of monitoring wells
ii. performing routine monitoring functions
iii. based on the data from the monitoring wells, installing
and maintaining 1 to 2 extraction wells and piping to a
treatment system
iv. performing any and all required repair activities
v. removal of wells
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B. Access to the property shall be provided for a period of
forty-eight months from the effective date hereof. EPA expressly
reserves the right to extend this time period if necessary to
complete the Remedial Action at the Velsicol/Hardeman County
Landfill Superfund Site, or to perform anv additional work
required by EPA.
C. Respondent shall allow EPA and Velsicol and its
representatives to enter the property and conduct activities
required by the Remedial Action at all reasonable times as
required by Section 104(e)(3) of CERCLA, 42 U.S.C. Section
9604(e)(3) .
0. Respondent shall not interfere in any way with the
Remedial Action being conducted at the T. F. Cannovan Estate, nor
shall they attempt to interfere with any additional work
determined by EPA to be necessary. Any such interference shall
be deemed a violation of this Order.
VII. CONFIDENTIAL BUSINESS INFORMATION
Respondent is hereby advised that, consistent with 18 U.S.C.
Section 1905, she may assert a confidentiality claim with respect
to any information obtained by EPA in the course of activities
performed at the Site under the authority of this Administrative
Order. Information accorded protection by 18 U.S.C. Section 1905
includes information relating to or concerning trade secrets,
processes, operation, style, of work, or amount or source of any
income, profits, losses, or expenditures of any person, firm,
partnership, corporation or association.
VIII. ACCESS TO ADMINISTRATIVE RECORD
The Administrative Record upon which this Order is based is
available for review on weekdays between the hours of 8:00 a.m.
and 5:00 p.m. in the Record Center, United States Environmental
Protection Agency, Region IV, 345 Courtland Street, N.E.,
Atlanta, Georgia 30365. Please contact Susan Munger, Assistant
Regional Counsel, in advance, at (404) 347-2641 ext. 2279, if you
wish to review the Administrative Record at the offices of EPA,
Region IV. The Administrative Record is also available for
review at the Bolivar/Hardeman County library, in Bolivar,
Tennessee.
IX. OPPORTUNITY TO CONFER AND EFFECTIVE DATE OF
ADMINISTRATIVE ORDER
This Administrative Order shall be served upon the Respondent by
certified mail, return receipt requested. Within twenty-four
hours of receipt of this Administrative Order, Respondent may
request a conference with EPA to discuss this Administrative
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Order. Any such conference shall be held within five (5)
business days of the date of the request. At any conference held
pursuant to a request by the Respondent, Respondent may appear by
an attorney or other representative. Respondent should contact
Susan Munger, Assistant Regional Counsel, at the above noted
telephone number to arrange such a conference.
Any comments which Respondent may have regarding this
Administrative Order, its applicability, the correctness of any
factual determination upon which the Administrative Order is
based, or any other relevant and material issue must be reduced
to writing and submitted to EPA within three (3) business days
following the conference, or if no .conference is requested,
within five.(5) business days following receipt of this
Administrative Order. Any such writing should be sent to Susan
Hunger, Assistant Reoionai Counsel', at the shhVoco noted above.
This Administrative Order shan De ettective on the seventh
calender day following receipt by the Respondent unless a
conference is requested as provided above. If a conference is
requested, this Administrative Order shall become effective five
(5) business-days following the date of the. conference unless
modified by EPA.
X. KOtlCE OF INTENTION TO COMPLY
On or before the effective date of this Administrative Order,
Respondent shall provide written notice to EPA stating whether
she intends to comply with the terms hereof. Such notice shall
be sent return receipt requested, to Susan Munger, Assistant
Regional Counsel, U.S. EPA, 345 Courtland Street, N.E., Atlanta,
Georgia 30365. In the event that such notice is not received by
EPA' on or before the effective date of this'Order, Respondent
shall be deemed not to have complied with the terms of this
Administrative Order.
XI. RESERVATION OF RIGHTS
Except as expressly provided in this Order, EPA reserves all
rights and defenses it may have and nothing herein shall prevent
EPA from seeking legal or equitable relief to enforce the terms
of this Order, including the right to seek equitable relief, and
imposition of statutory penalties, nothing herein shall restrict
or limit any of EPA's access or information gathering authorities
under applicable law.
XII. OTHER CLAIMS
Nothing in this Administrative Order shall constitute or be
construed as a release from any claim, cause of action or demand
in law or equity against any person, firm,.partnership, or
corporation not named by this Order for any liability it may have
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arising out of or relating in any way to the generation, storage,
treatment, handling, transportation, release, or disposal of -any
hazardous substances, hazardous wastes, pollutants, or
contaminants found at, taken to, or taken from the Site.
XIII. PENALTIES FOR NONCOMPLIANCE
Respondent is hereby advised that, pursuant to Section
104(e)(5)(B) of CERCLA, 42 U.S.C. Section 9604(e)(5)(B), a court
may assess a civil penalty not to exceed $25,000 per day for each
day that Respondent unreasonably fails to comply with this
Administrative Order or any part hereof.
IT IS SO ORDERED this
Waste Management Division
United States Environmental Protection Agency
Region IV
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._.g^
UNITED states environmental protection agency
REGION IV
3AS COURTLANO STREET. N.E.
ATLANTA. GEORGIA 30365
Aug i 3 ts3o
Honorable Richard B. Stewart
Assistant Attorney General
U.S. Department of Justice
P. 0. Box 7611
Ben Franklin Station
Washington, D. C. 20044
RE: Civil Judicial Re£erral to Gain Access to the
Elmore Waste Disposal Site Property and to Adjacent
Properties, Spartanburg County, South Carolina
Dear Mr. Stewart*
The Region requests that the Department of Justice file a civil
action pursuant to Section 104(e)(5) of the Comprehensive
Environmental Response/ Compensation and Liability Act of 1980
(CERCLA), as amended, 42 U.S.C. S 9604(e)(5), et. seq.. to
request an Immediate Order in Aid of Access granting the United"
States Environmental Protection Agency and its authorized
representatives access, for the purpose of conducting a Remedial
Investigation/Feasibility Study (RI/FS) and any subsequent
remedial measures determined to be necessary to perform the
RI/FS, to the Spartanburg County, S. C., properties owned by
William J. Elmore, Sr., Carolyn F. Elmore and Betty K. Pearson,
respectively. The Elmore Waste Disposal Superfund Site is
located on parts of some of these properties. The other parts
of the properties are adjacent to the Site. Enclosed are a
Draft Motion for an Immediate Order in Aid of Access, Draft
Complaint, Sworn Statement and related documentation in support
of this request.
The Regional Attorney assigned to this case is Ramiro Llado,
FTS/257-2641, and the Regional Enforcement contact assigned to
this case is Steven Sandler, FTS/257-7791.
Sincerely,
Regional Administrator
Enclosures
ccj Glenn L. Unterberger (LE-133)
Bruce Diamond (WH-527)
Robert Homiak, DOJ
Printed on Recycled Paper
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REQUEST FOR CIVIL ACTION> An Order In* Aid o£ Immediate Access
SITE I
STATUTORY PROVISION*
JURISDICTIONS
PROPOSED DEFENDANTSt
ACTION REQUESTED»
The Agency requests .that the Department of Justice file
in the proper court a Complaint and, a Motion for an Order In Aid
of Immediate Access granting the United States Environmental
Protection Agency and its representatives access to the Elmore
Waste Disposal Superfund Site property and to adjacent
properties, both of which are owned by the proposed Defendants.
Access is heeded for the purpose of conducting the RI/FS and any
subsequent remedial measures determined to be necessary to
perform the RI/FS.
The properties affected by this petition, as identified
izi the attached map, are lot 105, also known as lot 211, owned
by Ms. Betty K. Pearson, and lot 106, consisting of parcels 6,
8, 10 and 12, owned by Mr. William J. Elmore and his wife
Carolyn F. Elmore. The deeds related to these properties are
hereby attached. The Elmore Waste Disposal Superfund Site is
located on parcel number 6 of Lot 106, on part of lot: 105 (lot
211) and on part of parcel 8 of Lot 106. However, for the
purpose of conducting the RI/FS and determining the adequate
response action, entry iis also needed to the portions of lot 105
(lot 211) and parcel 8 that are not part of the Site and to
parcels 10 and 12 of Lot 106.
BASIS FOR ACTION AND BACKGROUND INFORMATIONt
The Elmore Waste Disposal Superfund Site was used for
the storage and disposal of hazardous substances from
approximately 1975 until 1977. During that period, an
undetermined number of drums, estimated in an amount 250 to 300
drums, containing hazardous substances were placed at the Site.
Some of these drums were deteriorated and their contents leaked
to the ground. Also a large open-top bulk storage tank
estimated to hold 5,000 to 6,000 gallons of waste oil
Elmore Waste Disposal Superfund Site
Spartanburg County, South Carolina
CERCLA Section 104(e)(5)
42 U.S.C. Section 9604(e)(5)
District of South Carolina
Betty K. Pearson
107 Vaughn Road
Duncan, South Carolina 29334
William J. Elmore, Sr.
Carolyn F. Elmore
613 E. Poinsett St.
Greer, South Carolina 29651
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contaminated with polychlorinatod biphenols (PCB) was located at
the Sit**
The storage and disposal practices used at the Site
resulted in the introduction of hazardous substances into both
the soil and the groundwater. Samples gathered at the Site
revealed the presence of the following principal contaminants *
barium, cadmium, lead, zinc; tetrachloroethylene,
1,1,2-trichloroethane, and trichloroethylene. These
contaminants have been found at levels that exceed Federal
Drinking Water Standards in at least one groundwater sample at
the Site. Previous response actions at the Site include a
removal conducted by the South Carolina Department of Health and
Environmental Control (SCDHEC) during the summer of 1986.
After the necessary assessment of the Elmore Waste
Disposal Site was performed, the Site was proposed for the
National Priorities List (NPL), as defined in Section 105 of
CERCLA, as amended, 42 U.S.C. S 9605, in June 1988. The
Hazardous Ranking System assigned the Site a rank of 31.45. 53
Fed. Reg. 23997 (June 24, 1988). The Elmore Waste Disposal Site
was included as final on the NPL on March, 1989. 54 Fed. Reg.
13302 (March 31, 1989).
After sending general notice letters, EPA proceeded
with a fund lead RI/FS. The Agency did not use the special
notice letter mechanism. Therefore, no moratorium was invoked
regarding the Site. EPA retained the services of Black and
Veatch, Inc., to perform the RI/FS. Since the extent of the
contamination at the Site has not been fully characterized, the
RI/FS will provide the necessary information for source
characterization and for the determination of the nature and
extent of contamination at the site and alternatives for the
remediation of the Site. Further, a Risk Assessment that is
consistent with the National Contingency Plan (NCP) and CERCLA
is required for this Site.
The RI/FS to be conducted at the Site requires access
to the properties owned by the proposed Defendants. As
described in the property map of School District 9 of
Spartanburg County, the Elmore Waste Disposal Superfund Site is
located on parts of lot 105 and 106. Lot 105, also known as lot
or parcel 211 is owned by co-defendant Betty Pearson. Lot 106,
composed of parcels or lots number 6, 8, 10 and 12, is owned by
co-defendant William J. Elmore, Sr., and Carolyn F. Elmore.
Access to the Site is crucial. It is anticipated that the
response action and remedial measures related to the RI/FS to be
undertaken on the proposed Defendants' property will take
approximately 18 months and will include, but will not be
limited to, the following! collection of soil and groundwater
samples from the site, installation of monitoring wells on the
site, temporary placement of supporting equipment on the site,
consisting of office trailer, portable toilet, waste dumpster,
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3
and security fencing.
From January through May, 1990, the Region made
attempts to obtain the voluntary consent of these landowners for
EPA*'s. access to their properties. On January 29, .1990, the
Region issued letters requesting access from Betty Pearson, as
well as from other parties that, at that time, were thought to
be also owners of the properties. The letter addressed to Ms.
Pearson was claimed by someone called Michael Bramlett, whom she
alleges is her ex-husband. During a .telephone conversation that
Ms. Pearson held with Ramiro Llado,.Assistant Regional Counsel,
she stated that she never received the letter. Subsequently,
the Agency determined that the current owners of the properties
are the proposed Defendants Betty Pearson* William J. Elmore,
Sr., and Carolyn F. Elmore.
Mr. Steven Sandler, the Remedial Project Manager in
charge of the Elmore Waste Disposal Superfund Site, also met
each party at a public meeting held on the site on March 22,
1990, and answered questions regarding site access. Mr. Llado,
at Ms. Betty Pearson's request, called her on April 6, 1990, to
answer additional concerns over site access. On May 14, 1990, .
EPA sent certified letters to proposed Defendants explaining trie
necessity of access and requesting that they either sign the
access agreement or contact EPA with any questions they may have
within five (5) days of receipt. The return receipts show that
these letters were effectively received by proposed Defendants.
No response was made to the letters. Furthermore, Mr. Sandler
had telephone conversations with Mr. William Elmore on May 17,
May 18, and May 21 to answer questions on aspects of site
access. . Mr. Elmore indicated that he wanted EPA to post a bond
because he was concerned over potential damage to his property.
Mr. Sandler explained him that site access was requested for the
Remedial Investigation and Feasibility Study, and that any
possible remedial action would involve a separate site access
agreement. Accordingly, no major disruption to the-properties
is expected.
EPA letters clearly stated that failure to sign the
access agreement would result in EPA seeking judicial relief to
gain access. To date, EPA has not received an executed access
agreement or any written response. The refusal of these
landowners to grant access to the properties has ^created
problems to the Region in its efforts to commence and complete
the RI/FS on a timely basis.
SUMMARY
The RI/FS for the Elmore Waste Disposal Superfund Site
was scheduled to commence in July, 1990. Therefore, it is
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imperative that a civil action be filed in the appropriate Court
and an order be obtained from the Court ordering the owners of
the properties (proposed Defendants) to grant EPA and its
representatives access to the properties to conduct the RI/FS
for this Site.
Attachments
I. Draft Complaint
II. Draft Memorandum In Support Of Plaintiff's
Motion For An Immediate Order In Aid Of Access
III. Sworn Statement
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LIST OP EXHIBITS.
Document
Exhibi t. Wlimhor
Exhibits Related to Site Location, Property Ownership and
Placement on the NPL
Property map related to school district
no. 9, sheet 9-4-2;? Property Map and Records
System, Spartanburg County, South Carolina
Master's Deed related to Lot 105, also known
as Lot 211, dated August 28, 1987
Master'8 Deed related to Lot 106, (parcel 6),
dated August 28, 1987
Master's Deed related to Lot 106, (parcels 8,
10 and 12) dated August 28, 1987
53 Fed. Rea. 23997
Roster of New Final Sites for the NPL, March
1989
54 Fed. Ret
13302
Exhibit 1
Exhibit 2
Exhibit 3
Exhibit 4
Exhibit 5
Exhibit 6
Exhibit 7
Exhibits Related to EPA's Efforts to obtain Voluntary Access
Letter of January 19, 1990, addressed to
Ms. Betty K. Pearson and Return Receipt Exhibit 8
Letter of May 14, 1990, addressed to
Ms. Betty K. Pearson and Return Receipt Exhibit 9
Letter of May 14, 1990, addressed to
Mr. William J. Elmore, Sr. and Ms. Carolyn
F. Elmore and Return Receipt Exhibit 10
Exhibits Related to Site History and Sampling
Potential Hazardous Waste Site Identification
Report of June 30, 1980 Exhibit 11
Potential Hazardous Waste Site Inspection
Report of August 26, 1980 Exhibit 12
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Document Exhibit w»wh«»r
Potential Hazardous Waste Site Tentative
Disposition Report of September 4, 1980 Exhibit 13
Potential Hazardous Waste Site Preliminary
Assessment Report of September 10, 1984 Exhibit 14
Investigation Report of January 15/ 1982,
prepared for EPA by Ecology and
Environment, Inc. Exhibit 15
Letter of January 19, 1982, addressed to
Mr. R. Stonebraker, EPA Region IV and signed
by Mr. Jack Scott and Mr. Charles K. Wilson,
employees of Ecology and Environment, Inc. Exhibit 16
Elmore Site Work Plan-Results of Inorganic
Sampling Performed by Black & Veatch Waste
Science and Technology Corp., Prior to SCDHEC
Clean Up Activities Exhibit 17
Elmore Site Work Plan-Results of Organic
Sampling Performed by Black & Veatch Waste
Science and Technology Corp., Prior to SCOHEC
Clean Up Activities (*) Exhibit 18
Site Screening Investigation Report, Prepared
by NUS Corporation on September 18, 1985 Exhibit 18(a)
Field Log of the Removal Activities
Performed by GSX Under a Contract with
SCDHEC (**) Exhibit 19
Sample Analysis Results Prepared by
General Engineering Laboratories Under
a Contract with GSX (**) Exhibit 20
Letter of May 1, 1987, addressed to
Mr. Coleman Miles of SCDHEC and signed
by Mr. Christopher A. Dilley of GSX Exhibit 21
(*) Even though the document states that the sampling is in
relation to Inorganic materials, all the results are related to
Organic materials.
(**) The documents are being provided for background
Information. The use and admissibility in evidence of the above
mentioned Exhibits should be judged by the DOJ attorney that
will handle the case.
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Attachment I
IN THE UNITED STATES DISTRICT COURT
POR THE DISTRICT OF SOtlTH CAROLINA
SPARTANBURG DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
WILLIAM J. ELMORE;
CAROLYN F. ELMORE; and
BETTY K. PEARSON
Defendants.
CIVIL ACTION NO.
COMPLAINT
f FOR ENTRY ONTO
REAL PROPERTY 1
The United States of America, at the request of the
Administrator of the United States Environmental protection
Agency ("EPA" or the "Agency"), alleges as follows:
NATURE OF ACTION
1. This is a civil action under Section 104(e) of
the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, 42 U.S.C. S 9604(e) ("CERCLA"), as
amended. The United States seeks declaratory and injunctive
relief giving EPA and its representatives unimpeded entry to
defendants' property to take response actions as authorized by
CERCLA.
JURISDICTION AND VENUE
2. This Court has jurisdiction over the subject
matter of this action under Sections 104 and 113(b) of CERCLA, 42
U.S.C. SS 9604 and 9613(b), and 28 U.S.C. SS 1331 and 1345.
Declaratory relier is authorized by 28 U.S.C. SS 2201 and 2202.
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2
3. Venue properly lies in the District of South
Carolina, Spartanburg Division/ under Section 113 (b) of CERCLA,
42 U.S.C. S 9613(b)# and 28 U.S.C. S 1391, because this claim
arises in connection with property located in this judicial
district.
DEFENDANTS
4. The defendants William J. Elmore, and Carolyn F.
Elmore, husband and wife, and Betty K. Pearson are the current
owners of the properties which are the subject of this
enforcement action. The properties affected by this action, as
identified in the map included as Exhibit "1", are lot 105, also
known as lot 211, owned by Ms. Betty K. Pearson, and lot 106,
consisting of parcels 6, 8, 10 and 12, owned by Mr. William J.
Elmore and his wife Carolyn F. Elmore. The deeds related to
these properties are hereby attached as Exhibits "2, 3 and 4".
The Elmore Waste Disposal Superfund Site, cited herein as the
"Site", is located on part of the properties.
THE SITUS
5. The Elmore Waste Disposal Superfund Site, as
identified in the map attached as Exhibit "1" is located on
parcel number 6 of Lot 106, on part of lot 105 (lo£ 211) and on
part of parcel 8 of Lot 106. However, for the purpose of
conducting the Remedial Investigation/Feasibility Study (RI/FS)
and determining the adequate response action, entry is also
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needed to the portion of lot 105 (lot 211), to the portion of
parcel 8 of Lot 106 that are not part of the Site and to parcels
10 and 12 of Lot 106. These properties are located adjacent to
the Site. Entry to both, the Site and the adjacent properties,
is requested through the present action.
The properties are located on Poinsett Street
(Highway 290) in the City of Greer, Spartanburg County, South
Carolina. Located at the intersection of Sunnyside Drive and
Poinsett Street, the Site is a grassy field approximately
one-half acre in size. However, the combined area of the
affected properties consisting of the Site plus the adjacent
properties, identified in Exhibit "1" as Lot 105 (Lot 211) and
Lot 106 (Parcels 6, 8, 10 and 12) is approximately 1.3 acres.
The Elmore Waste Disposal Site is surrounded by a
highway, five residences, two sets of railroad tracks, ah empty
building (formerly a cocktail lounge), and an asphalt plant. The
cocktail lounge and the five houses are located directly adjacent
to t^he site. The empty building and a residence border the site
to the south. South of the site is Poinsett Street (a two lane
highway) and tracks of the CSX Railroad. Four residences along
Sunnyside Drive border the site to the west, and another set of
the CSX Railroad tracks borders the site to the north. An open
residential lot borders the site to the east.
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The legal description for Lot 105 (Lot 211) is set
forth on a deed executed on August 28, 1987, herein attached as
Exhibit "2". The legal description for Parcel 6 is set forth on
a deed executed on August 28, 1987, herein attached as Exhibit
"3". The legal description for Parcels 8, 10 and 12 is set forth
on a deed executed on August 28, 1987, herein attached as Exhibit
"4" .
STATEMENT OF CLAIM
€. The Elmore Waste Disposal Site was used for the
the storage and disposal of hazardous substance from 1975 until
1977.
7. Past storage and disposal practices employed in
the Elmore Waste Disposal Site have resulted in the release of
hazardous substances into the soil and groundwater at the Site.
8. Section 101(14) of CERCLA, 42 U.S.C. S 9601(14),
defines "hazardous substance" to mean, among other substances,
" . . . any element , compound, mixture, solution, or substance
designated pursuant to section 102 . . . [or] any hazardous waste
having the characteristics identified under or listed pursuant to
section 3001 of the Solid Waste Disposal Act . .
9. Site investigations have shown that the
contaminants in soil and groundwater at the Site include numerous
organic solvents and inorganic elements, such as barium, cadmium,
lead, zinc, tetrachloroethylene, 1,1,2-trichloroethane, and
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5
trichloroethylene. These contaminants are hazardous substances
within the meaning of CERCLA S 101 114^. 42 n.s.C. 9601(14).
10. Sample analyses have revealed that drinking
water standards set forth in the Safe Drinking Water Act (Public
Health Service Act, PHSA), 42 U.S.C. Section 300f, et sea..
and/or regulations approved under said statute, 40 CFR Parts 141
and 143, are violated in the groundwater underlying the Site for
several organic compounds.
11. Section 101(9) of CERCLA, 42 U.S.C. S 9601,
defines "facility" as "... any site or area where a hazardous
substance has been deposited, stored, disposed of, or placed, or
otherwise come to be located." Because hazardous substances have
come to be located at the Site, the Site is a "facility" within
the meaning of Section 101(9) of CERCLA.
12. The Site was proposed for the National
Priorities List (NPL), as defined ih Section 105 of CERCLA, as
amended, 42 U.S.C. S 9605, in June 1988. The Hazardous Ranking
System assigned the Site a rank of 31.45. 53 Fed. Reg. 23997
(June 24, 1988). The Elmore Waste Disposal Site was included as
final on the NPL on March, 1989. 54 Fed. Reg. 13302 (March 31,
1989). See Exhibits "5, 6 and 7".
13. After the former owner of the Site, Mr. R. L.
Elmore, failed to clean the site through a Consent Order entered
in 1977 by and between him and the South Carolina Department of
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Health and Environmental Control (SCDHEC), said state agency
contracted with GSX Services, Inc., to conduct a removal cleanup
between June 23 to August 8, 1986. Approximately 5,000 cubic
yards of contaminated soils and 2,000 gallons o£ contaminated
liquids were removed at a cost of $929,700.
14. The extent of groundwater contamination on-site
has not been fully characterized to date by the available
information. It is, therefore, necessary for the Agency to
conduct a RI/FS to provide the necessary information for source
characterization and for the determination of the nature and
*
extent of contamination at the site. Further, a Risk Assessment
that is consistent with the National Contingency Plan (NCP) and
CERCLA is required for this Site.
15. From January through May, 1990, the Region made
attempts to obtain the voluntary consent of the Defendants for
access to their properties. On January 19, 1990, the Region
issued a letter requesting access from Betty K. Pearson. The
return receipt related to the letter addressed to Ms. Pearson was
signed by Michael Bramlett. Subsequently, the Agency determined
that the current owners of the properties are the Defendants
Betty K. Pearson, William J. Elmore, Sr., and Carolyn F. Elmore.
Mr. Steven Sandler, the Remedial Project Manager in
charge of the Elmore Waste Disposal Superfund Site, met each
party at a public meeting held on the site on March 22, 1990, and
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answered questions regarding site access. Mr. Ramiro LIado,
EPA's Assistant Regional Counsel, at Ms. Betty Pearson's request,
called her on April 6, 1990, to answer additional concerns over
site access.
On May 14, 1990, EPA sent certified letters to
Defendants explaining the necessity of access and requesting that
the Defendants either sign the access agreement or contact EPA
with any questions they may have within five (5) days. No
response was made to the letters. Copies of these letters and
the return receipt are herein attached as Exhibits "9 and 10".
Mr. Steven Sandler also had telephone conversations
with Mr. William J. Elmore, Sr., on May 17, May 18, and May 21 to
answer questions on aspects of site access.
EPA letters clearly stated that failure to sign the
access agreement would result in EPA seeking judicial relief to
gain access. In spite of the good faith efforts displayed by EPA
to obtain from Defendants voluntary access, to date EPA has not
received an executed access agreement or any written response.
Defendants have not provided EPA with the necessary access to
their properties. The refusal of these landowners to grant
access to the properties has created problems to the Region in
its efforts to commence and complete the RI/FS on a timely basis.
16. Unless officers, employees, and representatives
of EPA are allowed access to the Site for the specific purpose of
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8
conducting the response activities at the Site, EPA will not be
able to conduct response activities at the Site and determine the
nature and extent of contamination at the Site and risks to human
health and the environment.
17. Unless officers, employees and representatives
o£ EPA are allowed access to the Site by August 30, 1990, the
scheduled commencement of the response activities at the Site
will have to be significantly delayed, in which event EPA will
suffer great expense and will not be able to meet the scheduled
target dates for completion of the response activities for the
Site.
CLAIM FOR RELIEF
18. The allegations of Paragraphs 1 through 17 above
are realleged.
19. Section 104(e) of CERCLA, 42 U.S.C. Section
9604(e), provides in relevant part as followsi
(1) Action Authorized. Any officer, employee, or
representative of the President is authorized to take
action under [the following] paragraph (2), (3), or
(4), (or any combination thereof) at a vessel, facility,
establishment, place, property, or location
which is adjacent to the vessel, facility,
establishment, place, property or location referred
to in such paragraph (3) or (4).
* * * *
The authority of paragraphs (3) and (4) may be
exercised only if there is a reasonable basis to
believe there may be a release or threat of release of a
hazardous substance or pollutant or contaminant . . .[and]
only for the purposes of determining the need for
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9
response, or choosing or taking Response
action ... or otherwise enforcing the provision of
[CER&jA]
* * * *
(3) Entry. Any officer, employee, or representative
described in paragraph (1) is authorized to enter at
reasonable times any of the following:
* + * *
(B) Any vessel, facility, establishment, or other
placia or property from which or to which a hazardous
substance, pollutant or contaminants has been or may
have been released.
(C) Any vessel, facility, establishment, or other
place or property where such a release is or may be
threatened.
(D) Any vesseil, facility, establishment, or other
place or property where entry is needed to determine
the need for response or the appropriate response or to
effectuate a response action under CERCLA] . . .
(Emphasis added).
* * * *
Where there is a reasonable basis to believe there
may be a release or threat of a release of a
hazardous substance or pollutant or contaminant, the
court shall take the following actions t
(i) In the case of interference with entry or
inspection, the court shall enjoin such interference
. . . unless under the circumstances of the case the
demand for entry or inspection is arbitrary and
capricious, an abuse of discretion, or otherwise not
in accordance with law.
20. The purposes for which entry is authorized under
Section 104 (e)(1) of CERCLA, 42 U.S.C. S 9604 (e)(1), are to
determine the need for response or to choose or take any response
action under CERCLA.
21. Section 104 (e)(5)(B) of CERCLA, 42 U.S.C.
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10
9604 (a)(5)(B)/ authorizes the President, through the Attorney
General, to bring suit to compel compliance with a request for
entry or inspection.
22. The President's authority under Section 104 of
CERCLA, 42 TJ.S.C. S 9604, has been delegated to the Administrator
of EPA.
23. There is a reasonable basis to believe there may
be a release or threat of a release of a hazardous substance or
pollutant or contaminant to the Site.
24. The Site is the location of the type referred to
in Section 104 (e)(3) of CERCLA, 42 U.S.C. S 9604(e)(3), for one
or more of the following reasons: (a) a hazardous substance has
been released there; (b) a release of a hazardous substance is or
may be threatened there; (c) entry is needed to effectuate a
response action under CERCLA.
25. The response action and supervision to be
implemented on the Site is neither arbitrary nor capricious.
26. EPA seeks entry to the Site for the'purpose of
taking a response action under CERCLA.
27. EPA has requested defendants to consent to EPA's
entry onto the Site.
28. Defendants have failed to grant EPA access to
the Site in response to EPA's request for access.
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29. Unless restrained by an order of the Court,
authorized under Section 104 (e)(5)(B) o£ CERCLA, 42 U.S.C. S
9604 (e)(5)(B), defendants continued denial ot essential access
will obstruct,, impede or otherwise interfere with EPA's statutory
authority to enter the Site to takei an appropriate response
action under CERCLA.
30. Defendants' refusal to permit EPA access to the
Site will prevent EPA from entering property to which hazardous
substances have been released and will prevent EPA from taking
the reabonae actions necessary to respond to such release.
RELIEF REQUESTED
WHEREFORE, Plaintiff United States of America,
respectfully requests, as soon as possible, the following relief
from the Courtt
31. An immediate Order in Aid of Access and
Permanent Injunction enjoining the Defendants from obstructing or
interfering with EPA or its authorized representatives from entry
onto the Site for the purposes of conducting the response
activities provided for in the NCP, such Order in Aid of Access
to terminate on the date on which all the tasks related to the
performance of the RI/FS are finished.
32. A declaration pursuant to 28 U.S.C. Sections
2201 and 2202 that EPA has the legal right to enter the Site for
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the purposes and to the extent provided in Section 104 o£ CERCLA,
to effectuate the remediation of the Site and to perform such
monitoring, analyses, testing and other investigations as are
authorized by those statutory provisions;
33. Award the United States its costs of pursuing
this action; and
34. Such other and further relief as the Court may
deem appropriate.
Respectfully submitted,
Assistant Attorney General
Environment and Natural Resources
Division, U.S. Department of Justice
United States Attorney
by i
Assistant United States Attorney
District of South Carolina
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Attorney
Environmental Enforcement Section
P.O. Box 7611
Ben Franklin Station
Department of Justice
Washington, D.C. 20044
(202) 633-1999
OF COUNSEL!
John Barker.
Regional Counsel
U.S. Environmental Protection Agency
Region IV
345 Courtland Street, N.E.
Atlanta, Georgia 30365
(404) 347-2641
Joan B. Sasine
Associate Regional Counsel
U.S. Environmental Protection Agency
Region IV
345 Courtland Street, N.E.
Atlanta, Georgia 30365
(404) 347-2641
V. A. Heard
Associate Regional Counsel
U.S. Environmental Protection Agency
Region IV
345 Courtland Street, N.E.
Atlanta, Georgia 30365
(404) 347-2641
Ramiro Llado
Assistant Regional Counsel
U.S. Environmental Protection Agency
Region IV
345 Courtland Street, N.E.
Atlanta, Georgia 30365
(404) 347-2641
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IN THE UNITED. STATES DISTRICT COURT
FOR THE DISTRICT OF SCjtJTH CAROLINA
SPARTANBURG DIVISION
Attachment II
IN THE MATTER OFs
UNITED STATES OF AMERICA,
Plaintiff,
v.
WILLIAM J. ELMORE;
CAROLYN F. ELMORE; and
BETTY K. PEARSON
Defendants.
Civil Action No.t
MEMORANDUM IN SUPPORT OF PLAINTIFF' S MOTION
FOR AN IMMEDIATE ORDER IN AID OF ACCESS
Plaintiff, United States of America, moves this Court to
issue an Order, pursuant to Section 104(e)(5) of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA), 42 U.S.C. Section 9601(e)(5), as
amended by the Superfund Amendments and Reauthorization Act
(SARA), Public Law No. 99-499, 100 Stat. 1613 (October 17, 1986)
(hereinafter CERCLA, as amended), granting the United States
Environmental Protection Agency (EPA) and its authorized
representatives, including, but not limited to Black and Veatch,
Inc., access to the properties owned by William J. and Carolyn
F. Elmore and Betty Pearson located in Greer, Spartanburg
County, South Carolina, and known as the Elmore Waste Disposal
Site, for the purposes of conducting a Remedial Investigation
and Feasibility Study (RI/FS) and any subsequent remedial
measures determined to be necessary to perform the RI/FS.
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It la anticipated that the response action and remedial
measures on the Defendants' property will include but will not
be limited to the following* collection of soil and
groundwater samples from the site, installation of monitoring
wells.on the site, temporary placement of supporting equipment
on the site, consisting of office trailer, portable toilet,
waste dumpster, and security fencing.
Access to the Defendants' property is authorized because EPA
has determined that there is a reasonable basis to believe that
there has been a release or threat of a release of hazardous
substances, pollutants or contaminants at the property owned by
the Defendants.
STATEMENT OF THE CASE
The Defendants property was proposed for the National
Priorities List (NPL) on June, 1988 and listed as final on
March, 1989. The property is a Hazardous Waste Site known as
the Elmore Haste Disposal Site. The NPL identifies those
facilities nationwide at which releases or threatened releases
of hazardous substances present the greatest risk cfdanger to
public health, welfare, or the environment. Section 105(8) of
CERCLA, 42 U.S.C. S 9605(8).
On July 21, 1989, EPA sent general notice letters to the
Potentially Responsible Parties (PRPs) via certified mail. EPA
received no response from the defendants and decided to proceed
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-3-
with a fund lead RI/FS. Based on sit4 investigations, EPA has
made the following determinations:
1. The Elmore Waste Disposal Superfund Site, as
identified in the map attached as Exhibit "1", is located on
parcel number 6 of Lot 106, on part of lot 105 (lot 211) and on
part of parcel 8 of Lot 106. However, for the purpose of
conducting the Remedial Investigation/Feasibility Study (RI/FS)
and determining the adequate response action, entry is also
needed to the portion of lot 105 (lot 211) and to the portions
of parcel 8 of Lot 106 that are not part of the Site and to
parcels 10 and 12 of Lot 106. These properties are located
adjacent to the Site. Entry to both, the Site and. the adjacent?
properties, is requested through the present action.
2. The defendants William J. Elmore, and Carolyn F.
Elmore, husband and wife, and Betty K. Pearson are the current
owners of the properties which are the subject of this
enforcement action. The properties affected by this action, as
identified in the map included as Exhibit "1", are lot 105, also
knoyn as lot 211, owned by Ms. Betty K. Pearson, and'lot 106,
consisting of parcels 6, 8, 10 and 12, owned by Mr. William J.
Elmore and his wife Carolyn F. Elmore. The deeds related to
these properties are hereby attached as Exhibits "2, 3 and 4".
The properties are located on Poinsett Street (Highway
290) in the City of Greer, Spartanburg County, South Carolina.
Located at the intersection of Sunnyside Drive and Poinsett
Street, the Site is a grassy field approximately one-half acre
in size. However, the combined area of the affected properties
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consisting of the Site plus the adjacdnt properties, identified
in Exhibit "1" as Lot 105 (Lot 211) and Lot 106 (Parcels 6, 8,
10 and 12) is approximately 1.3 acres.
The Elmore Waste Disposal Site is surrounded by a
highway, five residences, two sets of railroad tracks, an empty
building (formerly a cocktail lounge), and an asphalt plant.
The cocktail lounge and the five nouses are located directly
adjacent to the Site. The empty building and a residence border
the site to the south. South of the site is Poinsett Street (a
two lane highway) and tracks of the CSX Railroad. Four
residences along Sunnyside Drive border the site to the west,
and another set of the CSX Railroad tracks borders the site to
the north. An open residential lot borders the site to the
east.
The legal description for Lot 105 (Lot 211) is set
forth on a deed executed on August 28, 1987, herein attached as
Exhibit "2". The legal description for Parcel 6 is set forth on
a deed executed on August 28, 1987, herein attached as Exhibit
"3", The legal description for Parcels 8, 10 and 12~is set
forth on a deed executed on August 28, 1987, herein attached as
Exhibit "4".
3. The Elmore Waste Disposal Superfund Site was used
for the storage and disposal of hazardous substances from
approximately 1975 until 1977. During that period, an
undetermined number of drums, estimated in an amount 250 to 300
drums, containing hazardous substances were placed at the Site.
Some of these drums were deteriorated and their contents leaked
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to the ground. Also a large open-top bulk storage tank
estimated to hold 5/000 to 6,000 gallons of waste oil
contaminated with polychlorinated biphenols (PCB) was located at
the Site. Leaking drums were observed during inspections
conducted by EPA and the South Carolina Department o£ Health and
Environmental Control (SCDHEC) between 1980 and 1983.
The storage and disposal practices used at the Site
resulted in the introduction of hazardous substances into both
the soil and the groundwater. Samples gathered at the Site have
revealed the presence of the following principal contaminants:
barium, cadmium, lead, zinc, tetrachloroethylene,
1,1,2-trichloroethane, and trichloroethylene. These
contaminants have been found at levels that exceed Federal
Drinking Water Standards in at least one groundwater sample at
the Site.
4. SCDHEC contracted with GSX Services, Inc., to
conduct at the Site a removal cleanup between June 23 to August
8, 1986. Approximately 5,000 cubic yards of contaminated soils
and -2,000 gallons of contaminated liquids were removed at a cost
of $929,700.
5. After the necessary assessment of the Elmore Waste
Disposal Site was performed, the Site was proposed for the
National Priorities List (NPL), as defined in Section 105 of
CERCLA, as amended, 42 U.S.C. S 9605, in June 1988. The
Hazardous Ranking System assigned the Site a rank of 31.45. 53
Fed. Reo. 23997 (June 24, 1988). The Elmore Waste Disposal Site
was included as final on the NPL on March, 1989. 54 Fed. Reg.
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-6-
13302 (March 31, 1989). See Exhibits 5, 6 and 7".
6. The extent of contamination in both the soils and
groundwater on-8ite has not been fully characterized. The
listing of the site on the NPL requires that an investigation be
conducted and remedial action developed and implemented.
Additional source characterization will be required to determine
the nature and extent of contamination at the site. Additional
principal contaminants of concern will be addressed in the
RI/FS, if they are detected in significant quantities during
analyses of field investigation samples. Further, a Risk
Assessment that is consistent with the National Contingency Plan
(MCP)and CERCLA is required for this Site.
7. The Site is a facility within the meaning of
Section 101(9) of CERCLA, 42 U.S.C. S 9601(9).
8. The Defendants are persons as defined in Section
101(21) of CERCLA, 42 U.S.C. S 9601(21).
9. Contaminants found at the Site are hazardous
substances within the meaning of Section 101(14) of CERCLA, 42
U.S.C. S 9601(14).
10. The hazardous substances described have been
released into the environment and its potential migration
pathways constitute both an actual release and threatened
release within the meaning of Section 101(22) of CERCLA, 42
U.S.C. S 9601(22).
11. From January through May, 1990, the Region made
attempts to obtain the voluntary consent of the Defendants for
access to their properties. On January 19, 1990, the Region
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issued a letter requesting access from Betty K. Pearson. The
return receipt related to the letter addressed to Ms. Pearson
was signed by Michael Bramlett. Subsequently, the Agency
determined that the current owners of the properties are the
Defendants Betty K. Pearson, William J. Elmore, Sr., and Carolyn
F. Elmore.
Mr. Steven Sandler, the Remedial Project Manager in
charge of the Elmore Waste Disposal Superfund Site, met each
party at a public meeting held on the site on March 22, 1990,
and answered questions regarding site access. Mr. Ramiro Llado,
EPA's Assistant Regional Counsel, at Ms. Betty Pearson's
request, called her on April 6, 1990, to answer additional
concerns over site access.
On May 14, 1990, EPA sent certified letters to
Defendants explaining the necessity of access and requesting
that the Defendants either sign the access agreement or contact
EPA with any questions they may have within five (5) days. Mo
response was made to the letters. Copies of these letters and
the return receipt are herein attached as Exhibits "9* and 10".
Mr. Steven Sandler also had telephone conversations
with Mr. William J. Elmore, Sr., on May 17, May 18, and May 21
to answer questions on aspects of site access.
EPA letters clearly stated that failure to sign the
access agreement would result in EPA seeking judicial relief to
gain access. In spite of the good faith efforts displayed by EPA
to obtain from Defendants voluntary access, to date EPA has not
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received an executed access agreement or any written response.
Defendants have not provided EPA with the necessary access to
their properties. The refusal of these landowners to grant
access to the properties has created problems to the Region in
its efforts to commence and complete the RI/FS on a timely
basis.
12. According to the Site history and to the
investigations and sampling done by EPA and by SCDHEC at the
Elmore Waste Disposal Superfund Site there is a reasonable basis
to believe that there has been a release or a threat of a
release of hazardous substance at the Site that allows plaintiff
to request from this Court an Order granting access to
Defendant's properties. See attached sworn statement suscribed
by Mr. Steven Sandler, EPA's Remedial Project Manager in charge
of this Site.
STATUTORY OVERVIEW
CERCLA was enacted in 1980 to afford the government a broad
array of powers to cleanup hazardous waste disposal sites.
Among those powers is the authority conveyed under Section
104(a) and (b) of.CERCLA, 42 U.S.C. S 9604(a) and (b), to use
"Superfund" monies to investigate and cleanup hazardous waste
sites, and the concomitant authority under Section 104(e) of
CERCLA, 42 U.S.C. S 9604(e), to enter hazardous waste Bites for
those same purposes. In the 1986 amendments to CERCLA (SARA),
Congress "clarified and strengthened" the entry authorities in
Section 104(e) of CERCLA, 42 U.S.C. S 9604(e), because of the
concern that EPA investigations and cleanups were being impeded
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/%, mo
0.r Or&s*
"pICcx/n" Scvvi p^Si 8"~" 23
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by challenges to EPA's access authority. See H. Rep. 99-253,
Part 1, 99th Cong./ 1st Sess. 70-71 (1985J.1
Congress amended Section 104(e) clarifying! (1) the purposes
for which entry may be sought; (2) the grounds upon which entry
can be gained; and (3) the places or properties which may be
entered. Section 104(m) of SARA, Pub. L. No. 99-499, 100 Stat.
1613, 1621-24 (1986); 42 U.S.C. S 9604(e), as amended
(1986).2 Further, Congress strengthened Section 104(e) by
codifying enforcement procedures for those instances when access
is not provided on a voluntary basis. Id.
Section 104(e)(1) authorizes the President ^ or any
representative to exercise the access authority of Section
104(e) for the broad purposes "of determining the need for
response, or choosing or taking any response action under this
1 Legislative history cited by Plaintiff is attached
hereto in the Appendix to this Motion.
2 Prior to SARA's enactment, a number of courts had
recognized and enforced EPA's access right under Section 104 of
CERCLA. See, e.g., United States v. Coleman Evans Wood
Preserving Co.. No. 85-211-CIV-J-16 (M.S. Fla. June 10, 1985);
United States v. United Nuclear Corp., 22 ERC 1791, 15 ELR 20443
(D.N.M. April 18, 1985). (All unreported decisions are attached
in the Appendix.) The one case questioning EPA's access
authority has been vacated. Outboard Marine Corp. v. Thomas,
773 P.2d 883 (7th Cir. 1985), vacated, 93 L.Ed.2D 695 (1986).
i
^ The President has delegated his authority under Section
104 to EPA. Exec. Order No. 12580, Sec. 2(g) and (i), 52 Fed.
Reg. 1923 (1987) (delegates investigatory, response, and entry
authority with regard to non-federal facilities).
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title, or otherwise enforcing the provisions of this title." 42
U.S.C. S 9604(e)(1), as amended. In a series of definitional
paragraphs in Section 101, of CERCLA, Congress made it clear that
"response" or response actions include virtually any activity
associated with the investigation and cleanup of hazardous waste
sites. Specifically, CERCLA defines "response" to mean "remove,
removal, remedy, and remedial action". 42 U.S.C. S 9601(25).
"Removal" actions are typically short-term, temporary or interim
response actions to prevent damage to public health or the
environment. Removal actions include "actions as may be
necessary to monitor, assess, and evaluate the release or threat
of release of hazardous substances . . . ."42 U.S.C.
S 9601(23).* Investigation and sampling conducted pursuant to
a remedial investigation or feasibility study (a study conducted
by EPA or its contractors to determine the feasibility of
remedial alternatives to cleanup the Facility) are removal
actions within the meaning of CERCLA and SARA. 42 U.S.C.
§ 9604(a), as amended. "Remedial" actions refer to response
4Section 101(23) of CERCLA, as amended, states in
pertinent part:
"Remove" or "removal" means the cleanup or removal of
released hazardous substances from the environment, such
actions as may be necessary taken in the event of the
threat of release of hazardous substances into the
environment, such actions as may be necessary to
monitor, assess, and evaluate the release or threat of
release of hazardous.substances, the disposal or removed
material, or the taking of.isuch other actions as may be
necessary to prevent, minimize, or mitigate damages to
the public health or welfare or to the environment which
may otherwise result from a release or threat of
release.
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actions taken consistent with a permaiJent remedy. Remedial
actions include "action ... to prevent or minimize the release
of hazardous substances so that they do not migrate to cause
substantial danger to present or future public health or welfare
or the environment . . .", as well as "any monitoring reasonably
required to assure that such actions protect the public health
and welfare and the environment. . .Investigation and
sampling are routinely necessary to perform an RI/FS and to
determine the need for remedial action. See 40 C.F.R. S 300.430,
55 Fed. Reg. 8846 (March 8, 1990).
EPA and its representatives are authorized to enter property
to conduct response activities when EPA determines that "there *
is a reasonable basis to believe there may be a release or
threat of release of a hazardous substance or pollutant or
^Section 101(24) of CERCLA, as amended, states in
pertinent part s
"Remedy or remedial action" means those actions
consistent with permanent remedy taken instead of or in
addition to removal actions in the event of -a release or
threatened relase of a hazardous substance into the
environment, to prevent or minimize the release of
hazardous substances that they do not migrate to cause
substantial danger to present or future public health or
welfare or the environment. The term includes, but is
not limited to, such actions at the location of the
release as storage, confinement, perimeter>protection
using dikes, trenches, or ditches, clay cover,
neutralization, cleanup of released hazardous substances
or contaminated materials, recycling or reuse,
diversion, destinxction, segregation or reactive wastes,
dredging or excavations, repair or replacement of
leaking containers, collection of leachate and run-off,
on-site treatment or incineration, provision of
alternative water supplies, and any monitoring
reasonably required to assure that such actions protect
the public health and welfare and the environment.
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contaminant". 42 U.S.C. S 9604(e)(1), as amended. Again,
Congress has defined the terms of the statute broadly in order
to effectuate the broad remedial purposes of CERCLA. See United
States v. Rellly Tar and Chemical Corp.. 546 F. Supp. 1100, 1112
(D. Minn. 1982). Release is defined to include practically any
conceivable escape of a hazardous substance into the
environment. A "threat of release" is, accordingly, any
condition with the potential to result in a release of hazardous
substances. "Hazardous substances" is defined to include
substances listed as hazardous under Section 102 of CERCLA and
chemicals identified as hazardous under a number of other
federal environmental pollution statutes.^ Finally,
^Section 101(22) of CERCLA, as amended, states in
pertinent parts "'release' means any spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping, or disposing into the environment, ..."
^Section 101(14) of CERCLA, as amended, states in
pertinent part t
"Hazardous substance" means (A) any substance
designated pursuant to Section 1321(b)(2)(A)"of Title
33 [the Federal Water Pollution Control Act], (B) any
element, compound, mixture, solution, or substance
designated pursuant to Section 9602 of this Title, (C)
any hazardous waste having the characteristics
identified under or listed pursuant to Section 3001 of
the Solid Waste Disposal Act (but not including any
waste the regulation of which under the Solid Waste
Disposal Act has been suspended by Act of Congress),
(D) any toxic pollutant listed under Section 1317(a) of
Title 33, (E) any hazardous air pollutant listed under
Section 7.412 of this Title, and (F) any imminently
hazardous chemical substance or mixture with respect to
which the Administrator has taken action pursuant to
Section 2606 of Title 15 [Toxic" Substances Control
Act ] .
EPA has published a comprehensive list of CERCLA hazardous
substances at 40 C.F^R. S 302.4.
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"environment" is defined as "navigable, waters . . . and any
other surface water, groundwater, drinking water supply, land
surface or subsurface strata, or ambient air within the United
States." 42 U.S.C. S 9601(8), as amended.
Once EPA determines that grounds exist for entry, its rights
to entry and access are far-reaching. Section 104(e)(3)
authorizes EPA and its representative to enter "any property . .
. where any hazardous substance may be or has been generated,
stored, treated, disposed of, or transported from . . . released
. . . or . . . where such release is or may be threatened . . .
or where entry is needed to determine the need for response . .
. or to effectuate a response action under this title." 42
U.S.C. S 9604(e)(3)(A) - (D), as amended.** Further, entry Is
authorized to any property adjacent to those properties
^Section 104(e)(3) of CERCLA, as amended, states as
follow81
"(3) Entry - Any officer, employee or representative described
in paragraph (1) is authorized to enter at reasonable times any
of the following!
"(A) Any vessel, facility, establishment, or other
place or property where any hazardous substance or
pollutant or contaminant may be or has been generated,
stored, treated, disposed of, or transported from.
"(B) Any vessel, facility, establishment, or other
place or property where such release is ox^ may be
threatened.
"(C) Any vessel, facility, establishment, or other
place or property where such release is or may be
threatened.
"(D) Any vessel, facility, establishment, or other
place or property where entry is needed to determine
the need for response or the appropriate response or to
effectuate a response action under this title.
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specified in Section 104(e)(3). Therefore, EPA and its
authorized representatives have a clear and unambiguous right to
enter the property at reasonable times to determine the need for
a response or to effectuate a response action.
Finally, Section 104(e) provides that if consent is denied,
EPA may either issue an administrative order for access or
proceed directly to federal district court to enforce its access
authority. 42 U.S.C. § 9604(e)(5)(A), as amended.9 Section
104(e)(5)(B) directs courts to: enforce EPA access requests or
orders where the standard set forth in Section 104(e)(1) is met,
i.e., where "there is a reasonable basis to believe that there
may be a release or threat of a release of a hazardous substance
or pollutant or contaminant.1-® In considering EPA's judicial
^Section 104(e)(5)(A) of CERCLA, as amended, states as
follows:
"(5) Compliance Orders -
"(A) Issuance - If consent is not granted
regarding any request made by an officer,
employee, or representative under paragraph (2),
(3), or (4), the President may issue an order
directing compliance with the request. The order
may- be issued after such notice and opportunity
for consultation as is reasonably appropriate
under the circumstances.
10Section 104(e)(5)(A) of CERCLA, as amended, states as
follow81
"(5) Compliance Orders -
"(B) Compliance - The President may ask the
Attorney General to commence a civil action to
compel compliance with a request or order referred
to in subparagraph (A). Where there is a.
reasonable basis to believe there may be a release
or threat of a reiase of a hazardous substance or
pollutant or contaminant, the court shall take the
following actions:
"(i) In the case of interference with entry
or inspection, the court shall enjoin such
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demand for access, the only inquiry td be made by the Court is
whether EPA has a reasonable basis to believe there may be a
release or threat of a release of a hazardous substance or
pollutant or contaminant. Furthermore, the Court's review o£
EPA's determination is limited to an arbitrary and capricious
standard. 42 U.S.C. S 9604(e)(5)(B), as amended. The floor
debates from both the House of Representatives and the Senate
make this evident. Representative Glickman, who spoke
authoritatively on this issue in the House,11 declared:
(RJeview under Section 104(e), relating to access, does
not open up the response itself to judicial review.
Rather, only [EPA's] reasonable belief that there has
been a release or threatened release is subject to
review.
132 Cong. Rec. H9582 (Oct. 8, 1986) (Statement of Rep.
Glickman). Senator Thurmond, Chairman of the Senate Judiciary
Committee, stated t
in actions to compel access, the court may only review
whether the Agency's conclusion that there is a release
or threat of release of hazardous substances is
arbitrary or capricious.
interference or direct compliance with orders to
prohibit.interference with entry of inspection unless
under the circumstances of the case the demand for
entry or inspection is arbitrary and capricious, an
abuse of discretion, or otherwise not in accordance
with law.
^Rep. Glickman is described by both majority and minority
managers of the conference report on SARA as the leading
spokesman for the House in the Conference Committee on the topic
of judicial review. 132 Cong. Rec. H 9563 (Oct. 8, 1986)
(Statement of Rep. Dingell: Statement of Rep. Lent).
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132 Cong. Rec. S14929 (Oct. 3, 1986) (Statement of Sen.
Thurmond). Notably, CERCLA's new judicial review
provision—Section 113(h)— is consistent with the limited
jurisdiction afforded under Section 104(e). In order to prevent
litigation which would delay EPA cleanups, Section 113(h) of
CERCLA, as amended, provides that federal courts' jurisdiction
to review challenges to response actions is limited to five
circumstances t
1. a cost-recovery action under Section 107;
2. an action to enforce a cleanup order issued pursuant
to Section 106(a) of CERCLA or to recover a penalty for
violation of such order;
3. an action for injunctive relief under Section 106;
4. an action for reimbursement; and
5. a citizen's suit challenging a response action
already completed.
Section 113(h) of SARA, Pub. L. No. 99-499, S 113(c), 100 Stat.
1613, 1659-50 (1986); 42 U.S.C. S 9613(h), as amended.
Representative Glickmah explained on the Floor of the- House of
Representatives that Congress had site investigations
specifically in mind when it added Section 113(h) to CERCLA:
[T]here is to be no review of a removal action
when there is to be a remedial action at tfhe
site. Thus, for example, review of the adequacy
of a remedial investigation and feasibility study,
which is a removal action, would not occur until
the remedial action itself had been taken.
132 Cong. Rec. H9582 (Oct. 8. 1986) (Statement of Rep.
Glickman). Since remedial action is contemplated by EPA for
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this site, the propriety of the remedial measures proposed by
EPA is not subject to review in this proceeding.
ARGUMENT
A. EPA AND ITS REPRESENTATIVES ARE AUTHORIZED UNDER
CERCLA SECTION 104(e) TO ENTER THE DEFENDANTS PROPERTY
AND TAKE RESPONSE ACTIONS
EPA moves that this Court enforce its right to enter
Defendants' property that is listed aB ah NPL Site at which
there is a reasonable basis to believe that there is a release
or threat of release of hazardous substances, pollutants or
contaminants. These hazardous substances include, but are not
limited to barium, cadmium, lead, zinc, tetrachloroethylene,
1,1,2-trichloroethane, and trichloroethylene. The purpose of
this entry is to define the extent of the contamination on the
Defendants' property so an appropriate remedy can be determined
and then implemented. This situation clearly falls within the
access authority granted EPA and its authorized representatives
by Section 104(e) of CERCLA. See United States v. Northside
Sanitary Landfill. Inc.. 27 Env't Rep. Cas. (BNA) 2122 (S.D.
Ind. 1988) (Attached); United States V. Charles George Trucking
Company. 692 F. Supp. 1260 (D. Mass. 1988) (attached). United
States v.Iron Mountain Works. Inc.. Civ. No. 87-1189 MLSJFM
(E.D. Cal. Aug. 29, 1988) (attached).
In Northside. the court articulated a five-prong test for
access: (1) the entry must be authorized under CERCLA; (2) the
EPA must request the landowner's consent to enter before seeking
court-order compliance; (3) the EPA must demonstrate a
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reasonable basis to believe that there may be, a release or a
threat of release from the Site, not whether there will be harm;
(4) there must be some past interference with the entry, such as
a delay; and (5) the demand for entry must not be arbitrary,
capricious, or an abuse of discretion.
CERCLA Section 104(e) grants EPA authority to enter to
perform response actions (this was discussed thoroughly in the
statutory overview).. EPA has requested the Defendants' consent
to allow EPA's authorized representative access to perform the
RI/FS and has not received an appropriate response from the
Defendants. EPA has a reasonable basis to believe that there may
be a release or threat of a release from the Site. EPA and its
authorized representative have been delayed in the response
action.
1. EPA's determination that there has been a release
of hazardous substances and demand for entry at the
Elmore Waste Disposal Site is not arbitrary and
capricious, or ah abuse of discretion.
Section 104(e) directs this Court to enforce EPA's request
for access where "there is a reasonable basis to believe there
may-be a release or threat of a release of a hazardous substance
. . . ." EPA'8 determination on this issue must be upheld if it
is not arbitrary and capricious. There can be no question in
this case that EPA's determination regarding the Elmore Waste
Disposal Site is not arbitrary and capricious. The evidence
contained in the administrative record supporting EPA's finding
regarding a release far exceeds the showing that the arbitrary
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and capricious standard requires.
To determine whether a decision reached by an administrative
agency is arbitrary and capricious, the reviewing court must
consider whether the decision was based on a consideration of
the relevant factors and whether there has been a clear error of
judgment. Citizens to Preserve Overton Park. Inc. v. Volpe. 401
U.S. 402, 416, (1971). If the Agency articulates a rational
connection between the facts found and the determination made,
the decision must be upheld. Bowman Transportation. Inc. v.
Arkansas Best Freight System. Inc.. 419 U.S. 281 (1974). The
scope of the court's review is limited to the administrative
record. See, e.g.., Florida Power and Light Company v. Lor ion.
471 U.S. 729, 743 (1985); American Paper Institute. Inc. v.
Electric Power Service Corp.. 461 U.S. 402, 412 and n.7 (1983).
As stated by the Supreme Court, review must be based on the
record that was before the agency at the time of the decision,
and not "some new record made initially in the reviewing
court." £am£> v. Pitts. 411 U.S. 138, 142 (1973); Overton Park.
401 U.S. at 419-20.
In determining that there is a reasonable basis to believe
that there may be a release of hazardous substances, pollutants
or contaminants at the Elmore Waste Disposal Site, EPA has
considered the relevant factors. First and foremost, it has
considered the results of chemical sampling of soils and
groundwater, which show that significant concentrations of
hazardous substances have been detected at the Elmore Waste
Disposal Site. Specifically, this sampling has shown
significant concentrations of barium, cadmium, lead, zinc,
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tetrachloroethylene, 1,1,2 -trichloroetthane, and
trichloroethylene waste contamination at the Site. Sample
analyses have revealed that drinking water standards are
violated in the groundwater underlying the Site for several
organic compounds. This evidence alone conclusively shows that
a release within the meaning of Section 101(22) of CERCLA has
occurred at the Site. New York v. Shore Realty Corp... 759 F.2d
1032, 1045 (2d Cir. 19851:¦ United States v. Conservation
Chemical Company, 619 F. Supp. 162, 188 (W.D. Mo. 1985); United
States v. Wade, 577 F. Supp. 1326, 1334 (E.D. Pa. 1981).
The record facts cited above amply support EPA's reasonable
belief that there may have been or has been a release of
hazardous substances at the Elmore Waste Disposal Site. These
facts certainly demonstrate that EPA has not been arbitrary or
capricious. Accordingly, the Court must order the Defendants to
grant EPA access, and enjoin the Defendants from any
interference with EPA's sampling, investigatory and remedial
activities. 42 U.S.C. S 9604(e)(5)(B), as amended.
2. EPA moves for access to the Defendants' property
¦for the purpose of: (1) conducting sampling to fully
characterize contamination at dnd near the Site so as
to determine the scope of the remedial response action
needed to protect human health and the environment; and
(2) performing such remedial response.
Section 104(e)(1) of CERCLA lists "determining the need for
response or choosing or taking any response" as purposes for
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-21-
which EPA and its representative are authorized to enter
property. Further, Section 104(e)(4) of CERCLA expressly
authorizes EPA inspections and sampling. The additional
sampling activities for which EPA and its representative are
seeking access are response activities directed precisely at
determining the scope of the remedial action necessary at the
Site. Clearly, performing the remedial response action will
constitute "taking any response."
3. The Defendants' property falls within those
properties which EPA and its representatives are
authorized to enter.
Section 104(e)(3) of CERCLA authorizes entry to four
overlapping classes of property: (A) properties where hazardous
substances may have been generated, stored, treated, disposed
of, or transported from; (B) properties where hazardous
substances has been released; (C) properties where a release is
threatened! or (D) properties where entry is necessary to
determine the need for response or the appropriate response or
to effectuate a response action. Entry is also authorized to
any property adjacent to those properties enumerated, above.
Section 104(e)(1) of CERCLA, 42 U.S.C. S 9604(e)(1).
The Elmore Haste Disposal Site comes within all four of the
classes of property specified in Section 104(e)(1). First, EPA
has determined that hazardous substances may have been disposed
of on the Site. Second, as demonstrated above, EPA's site
investigation has shown that hazardous substances have been
released on the property and that there is a threat of further
release.
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-22-
Third, as has also been demonstrated above, the Elmore Waste
Disposal Site clearly qualifies under subparagraphs (A), (B),
(C), and (D), of Section 104(e)(3). The Elmore Waste Disposal
Site was used for the storage and disposal of hazardous
substances, pollutants or contaminants. Initial Site
investigations revealed that a release or threat of a release of
hazardous substances, pollutants or contaminants may exist at
the Site, and that there is a need to detezmine the need for a
response or to effectuate a response action at the Site.
B. THIS COURT/S REVIEW IS LIMITED TO EPA'S DETERMINATION
REGARDING A RELEASE OF A HAZARDOUS SUBSTANCE
Finally, Section 113(h) of CERCLA, as amended, bars federal
courts from exercising jurisdiction to hear challenges to
response actions taken by EPA except in the limited
circumstances discussed above, none of which involve enforcement
of EPA's access authority. 42 U.S.C. S 9613(h), as amended.
All of the activities for which EPA seeks access at the
Defendants' property are response actions. The soil and
groundwater sampling fall within the definition of a removal
action, 42 U.S.C. S 9601(23) and the remedial measures qualify
as remedial action, 42 U.S.C. § 9601(24). CERCLA defines
response actions as including removal and remedial action. 42
U.S.C. S 9601(25). Therefore, this suit to enforc^ EPA's access
authority does not provide defendants with a forum to contest
the soil sampling, groundwater activities and remedial measures
to be performed by EPA and its authorized representatives.
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-23-
Review, instead, is limited to the question of whether EPA's
conclusion that there is a reasonable basis to believe that
there may be a release or threat or a release of hazardous
substances, pollutants or contaminants at the Site and whether
EPA's demand for entry is arbitrary and capricious. See 132
Cong. Rec. H9582 (October 8, 1986) (statement of Rep, Glickman);
132 Cong. Rec. S14929 (October 3, 1966) (Statement of Sen.
Thurmond); accord United States v. Standard Equipment. Inc.. No.
C83-2SM (W.D. Wash. November 3/ 1986). As demonstrated above,
EPA has acted reasonably and in furtherance of CERCLA's
objectives.
CONCLUSION
For the reasons set forth above, this Court should grant
EPA's motion for an Immediate Order in Aid of Access.
Respectfully submitted,
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Attachment III
IN THE UNITED. STATES DISTRICT COURT
FOR THE DISTRICT OP SO&TH CAROLINA
SPARTANBURG DIVISION
Civil Action No.
UNITED STATES OF AMERICA
Plaintiff,
v.
WILLIAM J. ELMORE;
CAROLYN F. ELMORE
BETTY K. PEARSON
Defendants
DECLARATION OF STEVEN M. SANDLER
IN SUPPORT OF MOTION FOR ACCESS
I, Steven M. Sandler, declaret
1. I am employed by the United States Environmental
Protection Agency (EPA) Region IV at 345 Courtland Street, N.E.,
Atlanta, Georgia and have been so employed since June, 1974. I
am a Remedial Project Manager (RPM) in the Super fund Branch of
the Waste Management Division. As an RPM, I am responsible for
oversight of remedial planning activities which are performed by
EPA's contractors and Potentially Responsible Parties (PRP's) in
support of investigation and remediation on National Priorities
List (NFL) sites. I also provide technical review of documents
as they jrelate to the geologic and hydrogeoloqic conditions at
NPL sites and review analytical program needs for those sites.
2. I have a Bachelor of Science in Environmental
Design from the University of Massachusetts and a Master of City
Planning from the Georgia Institute of Technology. I have also
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-2-
completed various training courses, seminars and conferences on
a wide variety of environmental topics during my sixteen (16)
years with EPA.
3. In preparation and training for my current
position, I have completed courses in personnel protection and
safety, project management, hazardous materials sampling,
hazardous materials treatment technologies, groundwater
hydrology, risk assessment, and community relations. I have
over sixteen (16) years of experience in conducting and managing
a variety of environmental studies relative to urban sanitary
facilities, drinking water, non-point pollution, and hazardous
materials.
4. I am the Remedial Project Manager (RPM) assigned to
the Elmore Waste Disposal Superfund Site. My responsibilities
include coordinating and guiding contractor efforts leading to
the development of a site work plan and which, in turn, will
delineate the procedures and analyses necessary to perform a
complete Remedial Investigation and Feasibility Study.
5. The Elmore Waste Disposal Superfund Site, as
identified in the map attached as Exhibit "1", is located on
parcel number 6 and on parts of lot 105 (lot 211) and parts of
parcel 8. However, for the purpose of conducting the Remedial
Investigation/Feasibility Study (RI/FS) and determining the
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adequate response action, entry is atao needed to the portions
of lot 105 (lot 211) and parcel 8 that are not part of the Site
and to parcels 10 and 12. These properties are located adjacent
to'the Site. Entry to both, the Site and the adjacent
properties, is being requested through Court action.
6. The defendants William J. Elmore, and Carolyn F.
Elmore, husband and wife, and Betty K. Pearson are the current
owners of the properties which are the subject of this
enforcement,action. The properties affected by this action, as
identified in the map included as Exhibit "1", are lot 105, also
known as lot 211, owned by Ms. Betty K. Pearson, and lot 106,
consisting of parcels 6, 8, 10 and 12, owned by Mr. William J. .
Elmore and his wife Carolyn F. Elmore. The deeds related to
these properties are hereby attached as Exhibits "2, 3 and 4".
7. The properties are part of Spartanburg County,
South Carolina and they are placed along Poinsett Street
(Highway 290) in the city of Greer. Located at the intersection
of Sunnyside Drive and Poinsett Street, the Site is a grassy
field approximately one-half acre in size. However,-the
combined area of the affected properties consisting of the Site
plus the adjacent properties, identified in Exhibit "1" as Lot
105 (Lot 211) and Lot 106 (Parcels 6, 8, 10 and 12) is
approximately 1.3 acres.
A former cocktail lounge and five houses are located
directly adjacent to the site. The Elmore Waste Disposal Site
is surrounded by a highway, five residences, two sets of
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railroad tracks, an empty building {formerly a cocktail lounge),
and an asphalt plant. The empty building and a residence border
the site to the south. South of the site is Poinsett Street (a
two' lane highway) and tracks of the CSX Railroad. Four
residences along Sunnyaide Drive border the site to the west,
and another set of the CSX Railroad tracks borders the site to
the north. An open residential lot borders the site to the
east.
8. The legal description for Lot 105 (Lot 211) is set
forth on a deed executed on August 28, 1987, herein attached as
Exhibit "2". The legal description for Parcel 6 is set forth on
a deed executed on August 28, 1987, herein attached as Exhibit .
"3". The legal description for Parcels 8, 10 and 12 is set
forth on a deed executed on August 28, 1987, herein attached as
Exhibit "4".
9. The National Priorities List (NPL) identifies sites
for remedial action under the Comprehensive Environmental,
Response, Compensation, and Liability Act of 1980 (CERCLA).
CERCLA sets up a trust fund to help pay for the clean-up of
sites where hazardous substances have been released or where
there is the threat of a release. Sites are included on the NPL
on the basis of their relative risk or danger, as determined by
the Hazard Ranking System (HRS). The HRS applies uniform
technical judgements regarding the potential hazards presented
by a facility.
10. In June, 1988 the Elmore Waste Disposal Site was
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proposed -to the NPL. 53 Fed. Reg. 239197. See Exhibit "5". The
Site was finally placed on the NPL on March/ 1989 with a
Hazardous Ranking of 31.45. See Exhibit "6", Roster o£ New
Final Sites for the NPL (March, 1989), and Exhibit "7", 54 Fed.
Reg. 13302. The placement of the Site on the NPL indicates that
the Site warrants further investigation designed to assess the
nature and extent of public health And environmental risks
associated with the site and to determine what CERCLA-financed
remedial action(s) may be appropriate. Remedial actions are
those responses that,are consistent: with a permanent remedy to
prevent or minimize the release of hazardous substances or
pollutants or contaminants so that they do not migrate to caus^,
substantial danger to present or future public health, welfare,
or the environment (CERCLA section 101(24)).
11. The Elmore Waste Disposal Super fund Site was used
for the storage and disposal of hazardous substances from
approximately 1975 until 1977. During that period, an
undetermined number of drums, estimated in an amount 250 to 300
drums, containing hazardous substances were placed at the Site.
Some of these drums were deteriorated and their contents leaked
to the ground. Also a large open-top bulk storage tank
estimated to hold 5,000 to 6,000 gallons of waste oil
contaminated with polychlorinated biphenols (PCB) was located at
the Site.
12. In response to odor complaints from neighbors, the
South Carolina Department of Health and Environmental Control
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(SCDHEC) conducted a site reconnaissance and discovered that
some of the drums were leaking. The site owner, Mr. R. L.
Elmore, was told by SCDHEC to recontainerize the leaking drums
and- properly dispose of the contaminated soils surrounding the
drums.
13. In 1977, Mr. R. L. Elmore entered into a Consent
Order with the State of South Carolina for the cleanup of the
site and proper disposal of the waste materials. Most of the
drums were removed to an unspecified destination. Wood shavings
were placed in areas where drums had leaked. About 25 drums and
the bulk storage tank remained onsite until early 1980 when Mr.
R. L. Elmore was directed by SCDHEC to cease cleanup activities
pending the results of sample analyses. The purpose of that
analysis was to assess the adequacy of the cleanup procedures.
Prior to the release of the analysis results, Mr. R. L. Elmore
became ill and died. Site ownership was transferred to Mr. R.
L. Elmore's estate conferring cleanup responsibilities to his
son, Mr. Frank Elmore. However, when the analytical results
indicated that cleanup procedures were inadequate, Frank Elmore
couid not be found to establish a new agreement.
14. On the summer of 1980 EPA became involved with the
Site. See Exhibit "11", Potential Hazardous Waste Site
Identification Report. A site inspection conducted by EPA on
August 26, 1980 noted leaking drums on-site and a partially
buried bulk storage tank containing an estimated 6,000 gallons
of waste oil or chemicals. See Exhibit " 12", Potential
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Hazardous Waste Site Inspection Report, Exhibit "13", Potential
Hazardous Waste Site Tentative Disposition Report and Exhibit
"14", Potential Hazardous Waste Site Preliminary Assessment
Report.
15. Based on a field investigation conducted between
August 17-21, 1981 by Ecology and Environment, Inc., on behalf
of EPA, the Agency documented the presence o£ various hazardous
substances on site. A composite soil sample taken 100 feet from
the main drum storage area on-site showed 14 extractable
organics, 8 purgeable organics and 17 inorganics. These
priority pollutants included fluoranthene, bis (2-ethylhexyl)
phthalate, butyl-benzylphthalate, benzo(a)anthracene,
benzo(a)pyrene, 3,4-benzo-fluoranthene,. benzo(k) fluoranthene,
chrysene, anthracene, benzo(ghi)perylene, phenanthrene,
indeno(l,2,3-cd)pyrene, pyrene, and phenol. Analysis for
volatile organic compounds revealed the presence of eight (8)
compounds, of.which trichlorofluoromethane is a .priority
pollutant. Inorganic analysis revealed the presence of
seventeen (17) inorganic elements, seven of which are priority
pollutants. These inorganic priority pollutants included
cadmium, chromium, copper, nickel, lead, zinc, and cyanide. See
Exhibit "15", Investigation Report prepared by Ecology and
Environment, Exhibit "16", Letter of January 19, 1982, prepared
by Ecology and Environment, Exhibit "17" and Exhibit "18"
Results of samples collected on August of 1981.
16. On JUne 26, 1984, EPA conducted another site
investigation and collected four additional soil samples and
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one additional water sample.' The report generated from this
inspection states that drums were in various deteriorating
conditions and the bulk tank did not have a cap or any kind of
closure. Laboratory analysis o£ the soil samples showed the
presence of 23 organic compounds, including 11 which are
priority pollutants (benzene, 1,1-dichloroethene, ethyl benzene,
fluoranthene, phenanthrene, pyrene, tetrachloroethane, toluene,
trans-l,2-dichloroethene, trichloroethylene, and vinyl
chloride). The analysis also found 20 inorganic contaminants,
13 of which are priority pollutants (antimony, arsenic,
beryllium, cadmium, chromium, copper, cyanide, lead, nickel,
selenium, silver, thallium, and zinc). See Exhibit "18(a)",
Site Screening Report.
17. In the summer of 1986, from June 23 to August 8,
GSX Services, Inc., on behalf of SCDHEC, conducted a removal
action at a cost of approximately $930,000.00. Approximately
5,000 cubic yards of contaminated soil and 2,000 gallons of
contaminated liquids were removed from the site. All the solids
were landfilled and the liquids were incinerated. Other cleanup
activities included collecting additional soil samples and the
installation of four monitor wells. The soil samples contained
cadmium, lead, tetrachloroethylene, and trichloroethylene. See
Exhibit "19", Field Log of the work performed, Exhibit "20",
Sample Analysis related to the removal action and Exhibit "21",
Letter of May 1, 1987 addressed to SCDHEC from GSX.
18. Most available data on the Elmore Site was
gathered by EPA, SCDHEC, and their contractors over the period
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from 1980 to the state- funded removals action in 1986. The last
data available is from post-removal action monitoring well
analyses conducted in 1987. During the soil removal activities,
soil samples west and beneath the excavated area were collected
and analyzed to determine if contamination extended to levels
deeper than had been excavated. In these sampling events,
apparently elevated levels of some metals were found. However,
further tests indicated that these metals were not leachable
into the groundwater. Arsenic, cadmium, copper, lead, and
mercury were found at elevated levels outside excavated area.
See Exhibits "20" and "21".
Also, in August 1986, four monitoring wells were
installed by Environmental Technology and Engineering Inc.
Samples from these wells were analyzed by SCDHEC in August of
1986 and January of 1987 and the results indicated the presence
of barium, cadmium, lead, zinc, tetrachloroethylene
1,1,2-trichloroethane, and trichloroethylene. However, the 4
monitoring wells installed in 1986 were constructed with PVC
well casings. Under current EPA Region IV Standard Operating
Procedures, the use of PVC well casings in monitoring wells is
not recommended if the wells will be used to monitor groundwater
containing low levels of organics. During the RI/FS these wells
will be substituted by monitoring wells constructed of stainless
steel that will allow EPA to gather more accurate samples.
19. A site investigation conducted by SCDHEC on
February 11, 1983, noted the presence* of 250 to 300 drums
scattered around the property in various deteriorating
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conditions and an open-top, bulk storage tank. Four soil
samples (SS-2, SS-3, SS-4, SS-5) and a standing water sample
(SW-1) were collected from locations as shown in Exhibits 6(a)
and- 6(b) attached to the Memorandum In Support Of Plaintiff's
Motion For An Immediate Order In Aid Of Access filed in this
case. Laboratory analysis of the samples indicated the presence
of 23 organic compounds, including 11 of which are priority
pollutants (benzene, 1,1-dichloroethane, ethylbenzene,
fluoranthene, phenanthrene, pyrene, tetrachloroethylene,
toluene, trans 1,2-dichloroethene, trichloroethylene, and vinyl
chloride). The soil analysis also found 20 inorganic
contaminants, 13 of which are priority pollutants (antimony,
arsenic, beryllium, cadmium, chromium, copper, cyanide, lead,
nickel, selenium, silver, thallium, and zinc).
20. Access to the site is necessary to determine the
need for response actions including but not limited to
contaminant source control at the site. The firBt action will
be to conduct a Remedial Investigation (RI) which will, in part,
include the use of all existing monitoring wells for water table
measurements, installation of new monitoring wells, and on-site
soil sampling, in order to fully identify the extent and
location of contamination. Once this is known, a Feasibility
Study (FS) will be performed to evaluate all of th^ options
available to mitigate any threat posed by the contaminants. EPA
must have access to the Elmore Waste Disposal Site in order to
implement the remedial program at the site.
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21. From January through Kay, 1990, the Region made
attempts to obtain the voluntary consent of the Defendants to
EPA's having access to their properties. On January 19, 1990,
the- Region issued letters requesting access from Betty Pearson,
as well as from other parties that, at that time, were thought
to be also owners of the properties. See Exhibit "8".
Subsequently, the Agency determined that the current owners of
the properties are the Defendants Betty Pearson, William J.
Elmore, Sr., and Carolyn F. Elmore.
On May 14, 1990, EPA sent certified letters to
Defendants explaining the necessity of access and requesting
that the Defendants either sign the access agreement or contact
EPA with any questions they may have. No response was made to
the letters. Also, I met each party at a public meeting held on
the site on March 22, 1990, and answered questions regarding
site access. Mr.. Ramiro Llado, EPA's Assistant Regional
Counsel, at Ms. Betty Pearson's request, called her on April 6,
1990", to answer additional concerns over site access. The
letters addressed to defendants and mailed May 14, 19.90,
requested a response granting access within 5 days.
Furthermore, I had telephone conversations with Mr. William J.
Elmore, Sr., on May 17, May 18, and May 21 to answer questions
on aspects of site access. I explained him that site access was
requested for the Remedial Investigation and Feasibility Study,
and that any possible remedial action, which could require major
disruption to the properties, would involve a separate site
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access agreement.
EPA letters clearly stated that failure to sign the
access agreement would result in EPA seeking judicial relief to
gain access. In spite of the good faith efforts displayed by
EPA to obtain from Defendants voluntary access, to date EPA has
not received an executed access agreement or any written
response. Defendants have not provided EPA with the necessary
access to their properties. The refusal of these landowners to
grant access to the properties has created problems to the
Region in its efforts to commence and complete the RI/FS on a
timely basis.
22. Unless officers, employees, and representatives of
EPA are allowed access to the Site for the specific purpose of
conducting the response activities at the Site, EPA will not be
able to conduct response activities at the Site and determine
the nature and extent of contamination at the Site and risks to
human health and the environment.
23. Unless officers, employees and representatives of
EPA are allowed access to the Site by August 30, 199.0., the
scheduled commencement of the response activities at the Site
will have to be significantly delayed, in which event EPA will
suffer great expense and will not be able to meet the scheduled
target dates for completion of the response activities for the
Site.
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-13-
I declare under penalty of perjury that*
a. The above stated facts are personally known to me,
except those contained in the reports and documents deferred to
herein.
b. The foregoing facts personally known to me are true
and correct. Upon information and believe, the facts stemming
from the reports and documents referred to herein are also true
and correct, and I have no reason to believe that these facts
are false.
Executed this day of August, 1990, at Atlanta,
Georgia.
Steven M. Sandler
Remedial Project Manager
U.S. Environmental Protection Agency
Region IV
345 Coutrland Street, N.E.
Atlanta, Georgia 30365
(404) 347-7791
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c
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HOLD ACTION LETTERS
-------
Cardinal
-------
sszz. i UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
345 courtland STREET. Vj e
4RC ATLANTA. GEORGiA 30365
JUL 3 1 1992
MEMORANDUM
SUBJECT: "Hold Action" Request, Airco Platijpg Company Site
^John R. Barker
Regional Counsel
FROM:
i r*n *
Joseph R. Franzmathes
Director
Waste Management Division
TO: Herbert H. Tate, Jr.
Assistant Administrator for Enforcement
The purpose of this Memorandum is to transmit the attached
"Request for Hold Action" letter for your review and, subject to
approval, for signature and forwarding to the Department of
Justice. The attached letter requests that the Department of
Justice delay filing a CERCLA §107 cost recovery suit in the
Airco Plating Company Site case for an additional sixty (60)
days, until September 30, 1992.
After receiving the case on referral, DOJ raised concerns
regarding the accuracy and reliability of evidence linking the
named and the potential defendants to several surface
impoundments used^by the operator of the Site for disposal of
hazardous wastes. In addition, new information recently received
by the Region called into question the .financial viability of the
principal named defendants. As a consequence, Region IV
submitted a letter to Mr. John C. Cruden at DOJ on June 5, 1992,
requesting a sixty (60) day hold action until July 31, 1992.
Currently the Region, DOJ, and the PRPs are actively engaged in
very positive settlement negotiations, and efforts continue at
the Region to produce evidence demonstrating the location of the
surface impoundments with an appropriate degree of accuracy. A
bona fide, good faith settlement offer was submitted by the PRPs
on July 9, 1992, and the Region is giving the PRPs' offer very
serious consideration in light of the litigation risks.
Additional time is necessary, however, not only to properly
evaluate the scope and extent of the PRPs' willingness to settle,
but also to produce evidence more accurately representing the
location of the surface impoundments.
According to the procedures for "Hold Action Requests" adopted by
James M. Strock in his memorandum dated November 16, 1990, hold
action requests for periods exceeding sixty (60) days, either
Printed on Recycled Paper
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-2-
individually or cumulatively, can be requested only by the
Assistant Administrator for Enforcement* As a consequence of the
June 5, 1992, request by the Region, the enclosed "Hold Action
Request" letter is transmitted for your review and signature.
Thank you for your assistance in this matter. If you have any
questions about this request, please contact Gregory D. Luetscher
of my office at (404) 347-2335, ext. 2127
Attachment
lien Nevil
&k>AAi
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Cardinal
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
345 COURTLAND STREET. N.E.
ATLANTA. GEORGIA 30365
Vicki A. O'Meara
Acting Assistant Attorney General
Environment and Natural Resources Division
U.S. Department of Justice
10th and Pennsylvania Ave., N.W.
Washington, DC 20530
Re: Request for Hold Action
Airco Plating Company Superfund Site, Miami Florida
Dear Ms. O'Meara:
The purpose of this letter is to request that the Department of
Justice delay filing suit for an additional sixty (60) days,
until September 30, 1992, in the Airco Plating Company Site civil
referral for CERCLA cost recovery. A previous sixty (60) day
hold was requested by Region IV to develop evidence linking
potential defendants to the Site, and to facilitate a good faith
settlement offer from the potentially responsible parties
("PRPs").
Region IV is optimistic that technical evidence, necessary for
demonstrating a nexus between certain PRPs and various surface
impoundments used for the disposal of hazardous substances, will
soon be forthcoming. In addition, the PRPs have recently
submitted a good faith settlement offer. After evaluating the
offer, the Region has concluded that prospects are favorable for
a negotiated settlement with viable PRPs.
Accordingly, I hereby request that the Department of Justice hold
the Airco Plating referral for an additional sixty (60) days.
This will allow the Region and DOJ to achieve a more informed
evaluation of litigation risks and an optimum settlement offer.
Please contact me with questions concerning this request, or have
your staff contact Gregory D. Luetscher, the Region IV attorney
assigned to the case, at (404) 347-2335, ext. 2127.
Sincerely,
S'<,
or
53ZZ
4RC
Herbert H. Tate, Jr.
Assistant Administrator for Enforcement
cc: John R. Barker, Regional Counsel, Region IV
Daniel S. Jacobs, Esq., DOJ
Constance Jones, EPA Region IV
Printed on Recycled Paper
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f*H
U J
July 24, 1992
ROUTING AND TRANSMITTAL SLIP
TO:
1. LUETSCHER
Initials
r-eJL :
Date
2. HARRIS
3. P. A. ALLEN/if^l?/?
4._S55tieKESND*
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5. C. SWAN
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9. FRANZMATHES (Signature)
ishseVtlltT" <¦
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ACTION REQUESTED:. Concurrence/Signature
TORM ARK'S-
ENCLOSED is a transmittal memorandum to Herbert H. Tate, Jr., Assistant Administrator for
Enforcement, U.S. EPA, to which is attached a letter, prepared for Mr. Tate's signature, addressed
to Vicki A. CMeara, Assistant Attorney General, Environment and Natural Resources Division, U.S.
Department of Justice ("DOJ"). Also enclosed is a memorandum from James M. Strock concerning
"Hold Action" Requests.
The PURPOSE of this package is to obtain from DOJ a 60 day delay in filing the CERCLA §107 cost
recoveiy suit in the Airco Plating Company Site ("Airco Plating"). The Airco Plating civil referral is
currently in a "hold action" status pursuant to an earlier request from the. Region, but this status will
expire after July 31, 1992. The structure of the document comprising this package is controlled by
the memorandum dated November 16,1992, from James M. Stfock, which adopts procedures for
requesting "hold action requests" from the Regions.
The enclosed letter and transmittal memorandum are SIGNIFICANT because the Airco Plating civil
referral must either be filed or returned to the Region by July 31, 1992. The Region and DOJ are
currently involved in active negotiations with the PRPs. In addition, the Region continues to develop
documentaiy evidence critical to a successful outcome if the case proceeds to trial. If the enclosed
"hold action" request is not submitted, DOJ will return the Airco Plating civil referral to the Region.
RUSH
Region IV Routing and Transmittal Slip Form (March 1992, kbs)
FROM: GREGORY D. LUETSCHER
347-2335, ext. 2127
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U
^ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
¦"* WASHINGTON, D.C. 20460,
pRd^-
SEP 2 ;^u.
. „ a , . OFFICE Of ENFORCEMENT
Honorable Vicki A. O'Meara
Acting Assistant Attorney General
Environment and Natural Resources Division
U.S. Department of Justice
10th and Pennsylvania Ave., N.W.
Washington, DC 20530
Re: Request for Hold Action
Airco Plating Company Superfund Site, Miami Florida
Dear Ms. 0'Meara:
The purpose of this letter is to request that the Department
of Justice delay filing suit for an additional sixty (60) days,
until September 30,' 1992, in the Airco Plating Company Site civil
referral for CERCLA cost recovery. A previous-sixty (60) day
hold was requested by Region IV to develop evidence linking
potential defendants to'the Site, and to facilitate a good faith
settlement offer from the potentially responsible parties
("PRPs").
Region IV is optimistic that technical evidence, necessary
for demonstrating a nexus between certain PRPs and various
surface impoundments used for the disposal of hazardous,
substances, will sobn.be forthcoming. In addition, the PRPs have
recently submitted a good faith settlement offer. After
evaluating the offer, the Region has concluded that prospects are
favorable for a negotiated settlement with viable PRPs.
Accordingly, I hereby request that the Department of Justice
hold the Airco Plating referral for an additional sixty (60)
days. This will allow the Region and DOJ to achieve a more
informed evaluation of litigation risks and an optimum settlement
offer. Please contact George D. Luetscher, the Region TV
attorney at (404) 347-2335, ext. 2127 or Daniel Jacobs, the DOJ
attorney at (202) 514-1704.
Sincerely,
f/c*. (
irbert H; Tate, Jr
isistant Administr
cc: John R. Barker, Regional Counsel, Region IV
Daniel S. Jacobs, Esq., DOJ
Constance Jones, EPA Region rv
Printed on Recycled Paper
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vt0 sr«V
J* -
p £% \
I® 3 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
,.c/ REGION IV
4i
2 B 1992
4RC
345 COURTLANO STREET. N.E.
ATLANTA. GEORGIA 30365
MEMORANDUM
SUBJECTS
FROM:
"Hold Action" Request, Basket Creek Drum Disposal Site
John R. Barker yjdV UJL^UJ^
Regional Counsel
TOs
Herbert H. Tate, Jr.
Assistant Administrator for Enforcement
The purpose of this Memorandum is ?to transmit the attached "Hold
Action" Request letter for your review and, if approved, for
signature and forwarding to the Department of Justice.
The enclosed "Hold Action" requests that the Department of
Justice delay filing suit in the Basket Creek Drum Disposal Site
case in light of information developed after the case was
referred. DOJ and Region IV believe that further development of
liability evidence is necessary in light of new information, as
outlined in the "Hold Action" Request letter.
The "Hold Action" letter requests that the filing of suit be
delayed for one hundred twenty (120) days, until March 25, 1992.
According to "Hold Action" procedures adopted by James Strock by
Memorandum dated November 16, 1990 (copy attached), Regional
Counsels are authorized to initiate "Hold Action" Requests of up
to sixty (60) days. "Hold Action" Requests of more than sixty
(60) days can be requested only by the Assistant Administrator
for Enforcement. Accordingly, the enclosed "Hold Action" Request
letter is transmitted for your review and signature.
The Regional attorney assigned to this case is Paul Schwartz,
Assistant Regional Counsel, FTS 257-2641, ext. 2269.
Attachments
Printed on Recycled Paper
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draft
4RC
Mr. John C. Cruden, Chief
Environmental Enforcement Section
Enviroiunent and Natural Resources Division
United States Department of Justice
P.O. Box 7611
Ben Franklin Station
Washington, DC 20044
RE: Basket Creek Drum Disposal Site
Douglas County, Georgia
Dear Mr. Cruden:
The purpose of this letter is to request that the Department of
Justice delay filing suit in the Basket Creek Drum Disposal Site
case for one hundred twenty (120) additional days until March 25,
1992.
In light of information developed in the course of removal work
at the Site, DOJ and Region IV believe that further development
of the liability case against Young Refining Corporation should
occur prior to the filing of suit.
At the time of the referral, the basis for the removal action was
the documented illegal burial at the Site in March of 1976, of
approximately eighty (80) drums of chemical wastes by the
proposed defendant, Young Refining Corporation ("Young
Refining"). Young Refining refused to comply with a Unilateral
Administrative Order (UAO) to conduct a removal of the drums, and
this case was referred pursuant to the Agency's Non-Complier/Non-
Settlor Initiative. The wastes buried by Young Refining
Corporation were never identified, but records established that
Young Refining was handling a variety of hazardous substances
pursuant its participation in a waste disposal/recycling joint
venture.
Pursuant to removal activities at the Site, more than 2,000 drums
have been excavated, and excavation of drums is continuing at
this time. Because of the number of drums found at the Site, DOJ
and Region IV anticipate an argument by the proposed defendant
that the eighty (80) drums dumped by Young Refining Corporation
did not contain any of the hazardous.substances found at the
Site, which substances are instead attributable to other
generators. To counter this anticipated argument, Region IV
proposes to develop an inventory of hazardous substances handled
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by Young Refining Corporation, and establish that: those or
similar hazardous substances are present at the Site. If the
Region can develop this information, the Agency will be better
prepared to make itis liability case, consistent with existing
authority. Accordingly, Region IV requests, that the Department
of Justice delay filing an action in this case for one hundred
twenty (120) days to afford the Region an opportunity to develop
its liability evidence more fully prior to the filing of suit.
Activities contemplated by Region IV include the compilation,
from shipping records and correspondence, of an inventory of
substances received by Young ^Refining pursuant to its
participation in a waste disposal/recycling joint venture. In
addition, the Region intends to interview Young Refining
Corporation's joint venture partner, who has been cooperative
during investigations relating to this Site, in order to identify
which substances from the inventory were buried, as opposed to
thoseVsubstances which were burned as fuel or reconditioned and
sold. Then th
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o"
,tO Sr4,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
\ REGION IV
345 COURTLAND STREET. N.E.
ATLANTA. GEORGIA 30365
» v
V - ,
m
4RC
MEMORANDUM
SUBJECT: "Hold Action" Request:, Basket CreeJj. Drum Disposal Site
FROM: ^"^ohn R. Barker
Regional Counsel
Joseph R. Franzmathes, Director
Waste Management Division
TO: Herbert H. Tate, Jr.
Assistant Administrator for Enforcement
The purpose of this Memorandum is to transmit the attached "Hold
Action" Request letter for your review and, if approved, for
signature and forwarding to the Department of Justice. This case
was referred to DOJ on September 19, 1991, and was the subject of
a prior "Hold Action" Request letter dated February 11, 1992,
which has now expired.
The attached "Hold Action" letter requests that the Department of
Justice delay filing a CERCLA §107 cost recovery suit in the
Basket Creek Drum Disposal Site case in light of information
obtained after the case was referred. DOJ and Region IV believe
that further development of liability evidence, and a resolution
of issues related to potential additional defendants, is
necessary in light of the new information, as outlined in the
"Hold Action" Request letter.
The "Hold Action" letter requests that the filing of suit be
delayed for an additional ninety (90) days. According to "Hold
Action" procedures adopted by James Strock by Memorandum dated
November 16, 1990 (copy attached), Regional Counsels are
authorized to initiate "Hold Action" Requests of up to sixty (60)
days. "Hold Action" Requests,of more than sixty (60) days can be
requested only by the Assistant Administrator for Enforcement.
Accordingly, the attached "Hold Action" Request letter is
transmitted for your review and signature.
The Regional staff attorney assigned to this case is Paul
Schwartz, Assistant Regional Counsel, (404) 347-2641, extension
2282.
Attachment
Printed on Recycled Paper
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Honorable Roger B. Clegg
Acting Assistant Attorney General
Environment and Natural Resources Division
United States Department bf Justice
10th & Constitution Avenue, NW
Washington, DC 20044
RE: Basket Creek Drum Disposal Site (the "Site")
Douglas County, Georgia
CERCLA Section 107 Cost Recovery Action
Dear Mr. Clegg:
The purpose of this letter is to request that the Department of
Justice ("DOJ") delay filing suit in the Basket Creek Drum
Disposal Site case for an additional ninety (90) days.
In a letter to Barry Hartman dated February 11, 1992, the
Environmental Protection Agency ("EPA") requested that DOJ delay
filing suit in this case £pr one hundred twenty (120) days so
that further development of the liability case against Young
Refining Corporation ("Young Refining") could occur prior to the
filing of suit. As stated in that letter, further development of
the liability case was justified in light of information
developed in the course of removal work at the Site.
Efforts to further develop the liability case against Young
Refining are continuing at this time, and in addition, EPA Region
IV and members of your staff are evaluating the status of
additional PRPs for possible inclusion as defendants in the
Section 107 CERCLA ..cost recovery action. EPA Region IV and
members of your staff are also considering a number of complex
liability and strategy issues that must be resolved prior to the
filing of suit.
At the time of the referral (September 19, 1991) the basis for
the removal action was the documented illegal burial at the Site
in March of 1976, of approximately eighty (80) drums of chemical
wastes by the proposed defendant, Young Refining. Young Refining
refused to comply with a Unilateral Administrative Order ("UAO")
to conduct a removal of the drums, and this case was referred
pursuant to EPA's Non-Complier/Non-Settlor Initiative. The
wastes buried by Young Refining were never identified, but
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records established that Young Refining was handling a variety of
hazardous substances pursuant to its participation in a waste
disposal/recycling joint venture.
Pursuant to removal activities at the Site, more than three
thousand (3,000) drums have been excavated at the Site. Because
of the number of drums found at the Site, EPA Region IV and
members of your staff anticipate an argument by. the proposed
defendant that th^ eighty (80) drums 'dumped by Young Refining did
not contain any of the hazardous substances found at the Site,
which substances are instead attributable, to other generators.
EPA indicated in its Hold Request letter dated February 11th,
that it would attempt to establish matches between materials
handled by Young Refining and substances found at the Site in
advance of, filing suit.
Since the February 11th Hold Request letter, Region IV has
compiled from Shipping records and correspondence, an inventory
of substances received by Young Refining pursuant to its
participation in a waste disposal/recycling joint venture. In
addition, Region IV and members of your staff have interviewed
Young, Refining's joint venture partner, in order to identify
which substances from the inventory were buried, as opposed to
those substances which were burned as' fuel or reconditioned and
sold. Region IV has. also taken and analyzed soil and waste
samples at the Site. Few obvious matches exist between
substances handled by Young Refining and substances found in soil
and waste samples at the Site.' However, the materials on the
Young Refining inventory are described in many cases either
generally, by brand name, or generically. EPA has retained an
expert chemist to evaluate whether substances described on Young
Refining records in this fashion are the same or similar to
substances found at the Site. In addition, the expert chemist is
being asked to determine whether the likely breakdown-
constituents of substances on the Young Refining inventory are
the same or similar to substances found at the Site. EPA
believes that it is appropriate to delay filing suit until Region
IV develops a more complete analysis of the number of matches
between substances handled by the joint venture (or their
breakdown-constituents) and substances found at the Site. Region
IV expects to obtain a report (first oral, to be followed by a
written report, if requested) from the expert chemist within the
next month.
Shortly before the February 11th Hold Request letter was issued,
Region IV issued a Section 104(e) Information Request to Chem-
Nuclear Systems, Inc.,.one of the PRPs at the Site, seeking
additional information regarding materials shipped to Young
Refining. In response to-the Information Request, Chem-Nuclear
Systems, Inc., indicated that its records are contained in
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approximately three thousand five hundred (3,500) unorganized
boxes, and that a complete response to the Information Request
would take several months to compile. Responsive documents have
been provided intermittently. At present, responsive documents,
contained in approximately^seventy-five (75) boxes, are assembled
in a room, and Region IV has been invited to inspect the
responsive documents. Region IV intends to conducts a review of
these documents during the next few weeks.
At this time, Region IV and members of your staff are also
evaluating the status of two other PRPs which may be added as
defendants in this case. One PRP, Continental Trading Company,
previously indicated that it would comply, with the UAO issued
with respect to the Site. However, Continental Trading Company
has made no contribution to work being done at the Site, and
Region IV and members of your staff are evaluating whether
Continental Trading Company should be named as a defendant for
its "de facto" noncompliance with the UAO.
Region IV and members of your staff are also evaluating a late-
identified PRP, Arivec Chemicals, Inc. ("Arivec"), for possible
inclusion as a defendant. Region IV has obtained an affidavit
from a former employee of Arivec stating that he personally
transported for Arivec approximately twenty (20) loads of eighty
(80) drums each of "still bottoms" (residue from the distillation
of spent solvents) for disposal at the Site. Wastes found at the
Site are consistent with this former employee's statement.
An evaluation of all three PRPs being considered as defendants
raises a number of complex legal and strategy issues, the
resolution of which should precede the filing of suit. Region
IV, EPA Headquarters (Office of Enforcement), and members of your
staff are engaged in ongoing discussions to resolve these issues
prior to filing suit.
A delay in filing suit in order both to further develop liability
evidence and to resolye legal and strategy issues raised in light
of newly discovered information meets the third criteria set
forth in James M. Strock's November 16, 1990, memorandum
regarding "Hold Action" Requests: "litigation practicalities,
recognized by both the Regions and DOJ, militate in favor of a
brief filing delay." Accordingly, EPA requests that DOJ delay
filing an action in this case for an additional ninety (90) days
to afford Region IV and DOJ an opportunity to further develop the
liability evidence and resolve certain legal and strategy issues
prior to the filing of suit.
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Please contact me if you have any questions on this matter, or
have your staff contact Willis G. Wang at (202) 260-7220 of my
staff or Paul Schwartz, the Region IV staff attorney assigned to
the case; at (404) 357^2641, extension 2282. The attorney on
your staff working on this case is Karen Dworkin.
Sincerely,
Herbert H. Tate, Jr.
Assistant Administrator for Enforcement
cc: John R. Barker, Regional Counsel, Region IV
Karen Dworkin, Esq., DOJ
Constance Jones, EPA Region IV
George Schubert, DOJ Administrative Unit
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) UNTOP «TATtS KKVWIOI—TKTAL PWOTECTIOM AOEXCV
WASHMQTQN. O.C. 20400
NOV 1 6 1990
amccaFaFoacacxr
MPWRAPPUM
SUBJECT: "Held Action" Requefte
FROM: James M.
Assistant Administrator
TO: Regional Counsels
At the Regional Counsels meeting In Seattle, ve discussed
ths problem of easss whose filing was bsing delayed by informal
staff-level "hold action" requests. To dsal with this problem,
and strengthen our management of this process, Ed Reich sent to
you on August 27 a draft of the nev procedures for such requests.
Based on your positive comments, and the support of the
Department of Justice (see attached), I am adopting these
procedures effective immediately.
Please assure that all Regional Counsel Staff are avare of,
and comply vith, these procedures.
Attachment
cc: Edward B. Reich
Scott Pulton
Associate Enforcement counsels
PriAtsd cm ?
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Proc«dur«s for "Hold Action" Reouesf
1. "Hold action" requests (requests to delay filing of a
complaint) era generally disfavored. Whan EPA
refers a cue to the Department of Justice, it should
be with the intent to get it filed a* quickly as
possible, and the case should be fully prepared for
filing. The Department seeks to file a conplaint
within 60 days of receipt of a referral.
2. Use of prereferral negotiation procedures in cases
where pre-filing negotiations are desired.should reduce
the need for "hold action" requests.
3. The following procedures are adopted to better manage
the "hold action" request process.
A. Authority to request a hold on a referred
civil ease for up to sixty days is hereby
delegated ta the Regional Counsels. XTSflT
authority is non-dslegable, but may be.
exercised by an Acting Regional counsel.
This delegated authority is limited to
circumstances in which additional time_ is
needed either: (1) to pursue pre-filing
settlement negotiations (where settlement
leviable)* (2) to allow for the addition
of other counts or defendants or (3) where
litigation practicalities, recognized by
both the Regions and DOJ,, militate in
favor of a brief filing delay. The Regional
Counsel can request more than one short hold
if necessary but the cumulative time of all
such holds for any case is strictly limited
to sixty days.
B. Any hold beyond 60 days, individually or
cumulatively, can be requested only by the
AA for Enforcement. The Regional counsel
would initiate this request, where
appropriate, by preparing a letter to the
Assistant Attorney General, Environment and
Katural Resources Division for the signature
of the Assistant Administrator for
Enforcement and sending this letter and an
appropriate transmittal memorandum to the AA.
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All hold raquaata issued by tha Regional
Counsel auat ba in tha form of a lattar from
tha Ragional Counaal to tha appropriata
Saction Chiaf at tha Dapartaant of Justica,
with a copy to tha^appcosciata AZC in OS.
Hold lattara froa tha AAvIIl similarly ba
copiad to tha Ragional Counsal.
Zf tha Associata Enforcaaant Counsal haa
strong objactions to tha hold, ha or aha vill
advisa tha appropriata Aaaiatant Chiaf in tha
Envirohaant and Natural Jlssourcas Division
and vill contact tha Ragional counsal to
attaspt to raaolva tha iaaua. This vill ba
dona only for casas with carious national
implications.
Tha Dapartaant of Justica vill traat as
having a "hold action" raquast only thosa
casas for vhich a formal vrittan raquaat froa
tha AA or RC has baan racaivad. Tha DOJ 60-
day raport vill shov as baing hald at EPA*a
raquast only thosa casas, and vill
apacifically cits by data and titla tha
raquasting maaorandua in its caaa auaaary.
Caaaa aubjact to a "hold action" raquaat vill
raaain on tha activa DOJ dockat of unfilad
caaas until thay ara filad, raturnad to tha
Rag ion by vrittan aaaorandum, or vithdravn by
EPA.
Casas for vhich iaaadiata filing is not
appropriata, and for vhich thara is no outstanding
"hold action" raquast in accordance with thaaa
procaduras, vill ba raturnad by DOJ to tha
Ragional counaal for furthar Agancy procaaaing.
Tha Oiractor, Offica of Civil Enforeaaant,
vill aonitor tha ovarall uaa by aach Rag Ion
of "hold action" raquaats to assura that tha
practica la not abussd.
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U. S. Department of Josdcc
Vafciftfto* DC XSJO
Novaaber 8, 1990
Honorable Edward E. Reich
Deputy Assistant Administrator
Office of Enforcement
Environmental Protection Agency
401 N street, S.W.
Washington, O.C. 20460
Dear Ed:
Thank you for providing us with an opportunity to
comment on the draft revision to the procedures by which the
Enviroiuaental Protection Agency will ask the Department of
Justice to •hold* a pending civil environmental enforcement
referral prior to filing.
He have reviewed the outline attached to your letter of
September 13, 1990, and generally concur with the revised "hold"
procedures. However, we believe that the outline needs to
address a situation which has arisen on many occasions in the
past. Although the new procedures indicate that the authority to
request a hold is 'nondelegable, * we expect that EPA regional
staff attorneys will continue to ask us to delay filing. This
happens now often because the regional staff have started to
negotiate with prospective defendants and have made certain
representations about delayed filings to those parties without
getting DOJ and/or EPA Regional Counsel concurrence. Under these
circumstances we now must decide whether to return the referral
for further agency processing or to retain it on the "60-Day
list* with an appropriate notation. We believe the outline
should specifically address this kind of situation by indicating
that cases will be returned to the Region unless the 'hold*
procedures are strictly adhered to.
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Zn addition, ve suggest that paragraph 0 of the Outline
be raviaad aa follow#:
D. If tha Associate Enforcement Counsel haa
strong objections to tha hold, ha or sha vill
advisa tha appropriate Assistant Chief in the
Environment and Natural Resources Division
and vill contact the Regional Counsal to
attempt to resolve the issue. This vill be
done only for eases vith serious national
implications.
X vould be happy to discuss the concerns outlined above
in greater detail prior to the next Stevart/Strock meeting. I
appreciate the opportunity to raviav and comment on this new
process.
Sincerely#
Richard B. Stewart
Assistant Attorney General
Environment and Natural Resources
Division
JoLcUlJwL
Robert Van Keuvelen
Acting Chief
Environmental Enforcement Section
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LETTERS INFORMING PRPS
THAT EPA WILL TAKE OVER
RI/FS
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^to SU
Ff
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
FEB 2 7 1992
345 COURTLAND STREET. N.E.
ATLANTA. GEORGIA 30365
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
4WD-SSRB
Mr. Bobby Allen, P.E.
Memphis Environmental Center, Inc.
2603 Corporate Avenue E, Suite 100
Memphis, Tennessee 38132
RE: South Marble Top Road Landfill Superfund Site
Feasibility Study
Dear Mr. Allen:
The Environmental Protection Agency (EPA) has reviewed and
disapproves of your Feasibility Study (FS). The FS fails to
address many of EPA's previous comments submitted to you on
December 11,.1991. In addition, changes have been made to the FS
that were not discussed in EPA's previous comments or discussions
with EPA.
In accordance with Section VI.I. of the Administrative Order on
Consent (AOC) executed with respect to the above-referenced site
the EPA is at this time implementing its right to conduct the FS
pursuant to its authority under the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA).
If you have any questions concerning this matter please call me at
(404) 347-2643.
Sincerely,
I
] . „er
cc: Paul Schwartz, ORC
Les Oakes, Esq.
James McGuire, EPA
Printed on Recycled Paper
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
345 COURTLAND STREET. N.E.
ATLANTA. GEORGIA 30365
4RC
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. L.C. Macomber
Vice-President, Administration
Kalama Chemical, Inc.
1110 Bank of California Center
Seattle, Washington 98164
RE: Kalama Specialty Chemical Superfund Site
Beaufort, South Carolina
Dear Mr. Macomber:
The Environmental Protection Agency (EPA) has reviewed and
disapproves of your June 1992 Baseline Risk Assessment (BRA) and
your July 1992 Remedial Investigation/Feasibility Study (RI/FS)
for the Kalama Site. The failure of Kalama to adequately address
concerns and comments from both EPA and the South Carolina
Department of Health and Environmental Control (SCDHEC) prevents
EPA from approving the BRA and RI/FS submitted by Kalama. In a
letter dated July 1, 1992, Kalama was put on notice that failure
to obtain EPA approval of subsequently submitted documents would
necessitate EPA completion of the documents.
In accordance with Section VI.J. of the January 1988
Administrative Order on Consent (AOC) executed with respect to
the above-referenced Site, EPA is exercising its right to amend
these documents, and to complete the RI/FS pursuant to its
authority under the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA).
If you have any questions concerning this matter, please contact
Mr. Seth Bruckner in the Office of Regional Counsel at (404) 347-
2641, ext. 2268.
Sincerely,
Joseph R. Franzmathes
Director
Waste Management Division
cc: John P. Dean, Esq., Willkie Farr & Gallagher
Steven W. Hale, Esq., Barrett Hale & Gilman
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E
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RESPONSES TO PRPs
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY"
REGION IV
345 COURTLANO STREET. N.E.
ATLANTA. GEORGIA 30363
October 2, 1992
Paul Schorb, Esquire
Beveridge & Diamond
Suite 700
1350 I Street, N.W.
Washington/ D.C. 20005-3311
RE: Virginia Carolina Chemical Superfund Removal Site;
Opelika, Alabama
Dear Mr. Schorb:
The purpose of this letter is to respond to your letter of
October 2, 1992. The United States Environmental Protection
Agency ("EPA") conducted a preliminary assessment of the Virginia
Carolina Chemical Site in Opelika, Alabama ("Site"), in
coordination with the Alabama Department of Environmental
Management ("ADEM") in June of 1992• Numerous waste piles and
areas void of all vegetation were discovered at the Site.
Surface samples collected from the Site revealed the presence of
hazardous substances, including high concentrations of lead and
arsenic. EPA determined that the conditions at this Site
constitute a threat to the public health, welfare and the
environment and that emergency removal activities are warranted.
Information provided to EPA by ADEM indicates that the Virginia
Carolina Chemical Company ("Virginia Carolina") purchased the
Site in 1902 from the Opelika Chemical Company and operated a
chemical fertilizer plant thereon. It appears that the
fertilizer plant was dismantled and the waste piles were created
by Virginia Carolina prior to selling the property in 1940 to
Pepperell Manufacturing Company, which later merged into West
Point Pepperell, Inc. ("West Point"). In the early 1960's,
Virginia Carolina merged with Socony Mobil Oil Company, Inc.,
which changed its name in 1966 to Mobil Oil Corporation. In
1987, West Point sold a portion of the Site to Parkway Properties
Partnership ("Parkway Properties").
In June of 1992, Mobil was advised of the environmental problems
at the Site and its potential liability by West Point.
Shortly after EPA became aware of the Site, a meeting was held at
ADEM's offices in Montgomery, Alabama in July of 1992.
Representatives- from Mobil, West Point, EPA and ADEM attended.
At that meeting the environmental threat posed by the Site was
discussed as was West Point and Mobil's status as potentially
responsible parties ("PRPs"). The parties agreed to advise EPA
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4RC
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by August 31, 1992, as to whether they were willing to conduct
the cleanup activities. Shortly thereafter, I was assigned t&
the case. I called Bill Walsh, one of the attorneys who attended
the meeting on behalf of Mobil, at least three times leaving
messages that I was calling about the Site. None of my calls
were returned. I was then advised by West Point's counsel that
Mobil was talcing the position that it did not assume the
liabilities of Virginia Carolina by virtue of the merger and was
not interested in discussing a joint cleanup effort.
In light of the stalemate that had developed, EPA sent general
notice letters to Mobil, West Point, and Parkway Properties on
September 3, 1992. Included in the letter was a draft
administrative order on consent setting forth proposed terms of a
PRP directed cleanup. On September 23, 1992, another meeting was
held, attended by me and Chris Militischer, the on-scene
coordinator, on behalf of EPA, representatives from West Point,
Parkway Properties, and Mobil. At the meeting, Mobil indicated
that it was not yet convinced that it was liable and was not
prepared to discuss the terms of a consent order. The other PRPs
indicated that they were not willing to enter into a consent
order without Mobil. I advised the parties that EPA intended to
proceed with the issuance of unilateral orders to be issued as
soon as it was drafted and approved. I also indicated that if in
the meantime any one changed their position, I would be available
to discuss the terms of a consent order.
Two days ago you advised me that it was now Mobil's theory that
Virginia Carolina Chemical was involved in some type of
bankruptcy reorganization in the 1920 's and that if you can
establish as a factual matter that the waste piles were created
prior to the supposed bankruptcy proceeding, Mobil's liability
under CERCLA would have been discharged. I referred you to In re
Penn Central Transportation Company# 944 F.2d 164 (3rd Cir.
1991). In that case, the Third Circuit held that CERCLA claims
are not discharged by a bankruptcy proceeding that occurred prior
to the enactment of CERCLA and that the reorganized debtor may be
held liable for the claim. Therefore, your reguest for
additional time to develop facts to support a legal argument that
has been soundly refuted by case law is nothing more than a
delaying tactic.
EPA's decision to proceed with the issuance of unilateral orders
in this case is consistent with CERCLA, the National Contingency
Plan and EPA guidance and policy. Your client has been aware of
this Site since June and has been afforded a reasonable
opportunity to investigate the facts and to negotiate a consent
order consistent with EPA's need to address the dangers posed by
the Site. EPA has determined that commencement of cleanup
activities at the Site should not be further delayed. Your
reguest to negotiate a consent order that would, in essence,
allow Mobil to void the order and cease cleanup activities at any
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time, is impracticable, contrary to EPA policy and not consistent
with EPA's mission to protect human health and the environment
and appears to be simply another tactic to delay.
Your charge that EPA's actions in this case have been driven by
my impending maternity leave are disingenuous and distasteful.
There are over sixty attorneys in the Office of Regional Counsel
any one of whom could take over this case in my absence. In any
event, I have fully advised both my section chief, Bill Bush and
branch chief, Anne Allen, as to the status of this matter and
your allegations. I would be happy to schedule a conference call
between you, Mobil, me and my supervisors at your convenience.
Counsel for West Point and Parkway Properties have requested that
they be included in. such a call. I anticipate issuance of the
unilateral orders on Monday, October 5, 1992.
Sincerely,
Andrea Madigan
Assistant Regional Counsel
cc: Anne Allen, CERCLA Branch Chief, ORC
Bill Bush, Section Chief, ORC
Nill V. Toulme, Esquire
Joan Sasine, Esquire
-3-
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Cardinal
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i
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
345
AT
4RC
October 9, 1992
Mr. Mark A. Zuschek
Mobil Corporation
3225 Gallows Road
Fairfax,.Virginia 22037-0001
RE: Virginia Carolina Chemical Superfund Site, Opelika, Alabama
Dear Mr. Zuschek:
The purpose of this letter is to respond to your letter of
October 7, 1992. In your letter you make numerous factual
assertions regarding the history of the Virginia Carolina
Chemical Superfund site in Opeiika, Alabama ("Site"). These
assertions were first made by Mobil Oil Corporation ("Mobil")
several days ago by Paul Shorb in similar correspondence. Even
thought Mobil has known about the Site and its potential
liability since June, neither you nor Mr. Shorb have provided any
documentation or other evidence to support your statements.
Further, EPA has in its possession evidence which contradicts
several of the factual allegations made by you and/or Mr. Shorb.
In addition, even if Mobil can establish its view of the facts,
we believe that Mobil's legal analysis of these facts is
seriously flawed and that Mobil is liable for all response costs
incurred or to be incurred at the Site pursuant to Section 107 of
the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"). We would be happy to discuss this with
you in greater detail at the conference scheduled for next week.
With respect to potentially responsible parties ("PRPs"), EPA has
issued unilateral orders to all parties against whom it has
sufficient evidence to conclude that they are liable pursuant to
Section 107 of CERCLA. If Mobil has information indicating that
there are other PRPs, please provide us with this information and
we will respond appropriately.
As you may know, since July' there have been several meetings
between representatives of Mobil, other PRPs, EPA, and ADEM
regarding Site conditions and that high concentrations of lead
and arsenic as well as other hazardous substances have been found
in soil samples taken from the Site. Copies of all technical
reports generated to date have been provided to PRPs. At the
last meeting with the PRPs, Chris Militscher, EPA's on-scene
coordinator, provided a detailed summary of more recent sampling
results which indicate the presence of even higher concentrations
Printed on Recycled Pap
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of hazardous substances than initially found. We have agreed to
provide copies of this technical data to PRPs as soon as we
receive the written report from our contractor.
Both you and Mr. Shorb in your recent correspondence have
asserted that the Site poses no environmental threat.
Apparently, this assertion is based upon the fact that at EPA's
request a fence was erected by the current property owner/PRP to
prevent children and others from coming into direct contact with
contaminants at the Site and that there have been discussions
with the current owner regarding surface run-off. We find this
assertion insupportable. Mobil's gross misstatements regarding
the environmental threat created by Site conditions, in spite of
evidence to the contrary, has caused Mr. Militscher to desire the
presence of legal counsel in future discussions with Mobil. I
would be happy to schedule a conference call between Mr.
Militscher, myself and representatives of Itobile to discuss
technical issues. We will also be available to discuss such
issues in the conference scheduled for next week. Alternatively,
you may submit any technical concerns you have in writing and we
will respond appropriately.
Sincerely,
Andrea Madigan
Assistant Regional Counsel
cc: Mr. Chris Militscher
Paul Shorb, Esquire
Nill Toulme, Esquire
Joan Sasine, Esquire
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Cardinal
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
34S COURTLAND STREET. N.E.
ATLANTA. GEORGIA 3036S
4RC
May 5, 1993
Charles Tisdale, Esquire
King & Spalding
191 Peachtree Street
Atlanta, Georgia 30303
FAX 404/572-5100
RE: Wilson Concepts Site (the Site), Pompano Beach, Florida
Dear Chet:
The United States Environmental Protection Agency (EPA) is'±n
receipt of your letter dated April 23, 1993, sent on behalf of
CWJ, Inc. (CWJ). The Agency has reviewed CWJ's offer and finds
that the offer is not sufficient to justify a settlement. „
Regarding your comments on the Site's ranking on the National
Priorities List (NPL), EPA does not reevaluate site rankings.
Furthermore, CWJ had the opportunity to comment on the NPL
listing when the Site was proposed for the NPL in 1988.
If you have any questions, please feel free to contact me at
(404) 347-2641, extension 2231.
Sincerely,
Leslie E. Bell
Assistant Regional Counsel
Printed on
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F
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LETTERS INFORMING PARTY
WE NO LONGER CONSIDER
IT A PRP
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
~
345 COURTLAND STREET. N.E.
ATLANTA. GEORGIA 30365
White
Re: Maxey Flats Disposal Site, Fleming County, Kentucky
Dear Mr. Moloneyt
On November 26, 1966, and August 23, 1991, the United States
Environmental Protection Agency (EPA) sent general notice letters
to Dorsey, Inc., in care of your law firm, informing the company
that EPA had information which led it to believe that Dorsey,
Inc. was a potentially responsible party (PRP) for the clean-up
costs and other related costs for.the above-referenced Superfund
site. In a number of telephone conversations with legal and
program staff in Region IV, and by a letter dated October 24,
1991, to Mary Wilkes of the Office of Regional Counsel, your firm
has provided information indicating that Dorsey's, Inc., a
grocery business which your client. Cardinal Foods, Inc.
purchased in 1980, is not the same company as the Dorsey, Inc.,
which EPA had identified as a PRP for the Maxey Flats Disposal
Site.
Based on the information that you have provided and EPA's review
of its records, EPA is closing its file on Dorsey's, Inc. and
does not now intend to take further steps to hold your client,
formerly Dorsey's, Inc., responsible for the clean-up costs and
other related costs for the Maxey Flats Disposal Site. Please be
advised, however, that EPA's position as stated in this letter is
not intended to release Dorsey's, Inc. from liability. EPA
reserves the right to take further action with respect to this
Site against Dorsey's, Inc. or your client should additional
evidence indicate that either is a potentially responsible party.
You or your client must supplement the information which you have
previously provided to EPA should you learn of any evidence
linking Dorsey's, Inc. with the transportation to or disposal of
hazardous substances at the Maxey Flats Disposal Site.
Although EPA does not now view Dorsey's, Inc. as a PRP for the
costs associated with the clean-up of the Maxey Flats Disposal
Site, it is possible that one or more of the other parties who
are PRPs may seek contribution from Dorsey' s, Inc. under Section
113(f) of the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, 42 U.S.C. Section 9613, as amended,
for any liability that they may have to the United States.
JAN 1 3 1992
Dorsey'a, Inc.
c/o Thomas E. Moloney, Esq.
Baker & Hostetler
65 East State Street
Columbus, Ohio 43215
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Och J3t H87
e_a
'Pis Sr—^ ^ I -S^
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-2-
Nothing contained in this letter is intended to relate to such
possible third party actions, or to any issues concerning
contribution. However, by copy of this letter, EPA is advising
the existing PRP steering committees for the site of its
determination not to pursue Dorsey's, Inc.
Thank you for your cooperation, assistance and patience in this
matter. If you should have any questions, please contact Mary J.
Wilkes in the Office of Regional Counsel, at (404) 347-2641, ext.
2281.
Sincerely,
/%/ DOT OUIHTABD
Donald J. Guinyard
Director
Waste Management Division
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m)
CIVt&c, £«Q(t
{m
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
^ REGION IV
349 COURTLANO STREET
ATLANTA. GEORGIA 303«S
MEMORANDUM
DATE : NOV 0 5 1987
SUBJECT: Advising PRPs that they are no longer
considered liable
FROM: Barry P. Allen
Assistant Regional Counsel
TO: All Hazardous Waste Law Branch Attorneys
Periodically we will advise a company that it is a potentially
responsible party (PRP) at a site, and then learn that the company
did not send hazardous waste to the site or that the evidence we
thought existed has failed to be supportable, etc. This initial
determination of liability is often based on material submitted
by the company in response to §104 information requests. Having
notified the company in the first instance that it was a PRP, the
business entity likewise will ask for something in writing which
says we are no longer considering the company a PRP.
A procedure I have used in this situation is to require the
company to re-state its information in affidavit form and then have
all of the affidavits adopted by a corporate officer (so that the
government is relying on what the company, not a branch or plant,
is saying). [Of course, I have my program contact review the
preliminary data before it is put into affidavit form. Only if
they concur that the waste is not hazardous, or that no waste was
actually sent to the site, do I then seek affidavits.] When I write
the company - i.e., prepare a letter for the Waste Division Director's
signature - I make it clear that EPA is not providing a general
release, and that if new information is obtained, EPA may again
look to the company as a PRP. I also make the company aware of its
duty to supplement its responses should additional information
concsrning the site be uncovered in the future. Copies of the
affidavits in a recent case, as well as the Division Director's
letter (in a different case), are attached for your reference.
Please see me if you have any questions.
cc t
Marcia English (for input into material given to new attorneys)
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CCT * 3 1387
VIA EXP?.rr>3 .'.AIL
Sanutl Valenzlsl
President
Baldwin Industrial Llouldators, mc.
P.O. Box 920
Vfentagh, New York 11793
Rei Swainsboro Print Uorks Site
Swainsboro, Georgia
Dear Mr. Valenzlslt
On July 23, 1936, the Environmental Protection Arency sent
Baldxrtn Industrial Liquidators (hereafter "Baldwin")'a notice
letter indicating that the Agency had information which led it
to believe that your company was a potentially responsible pertv
for at lea3t that portion of the poverrreent's cleanup costs for
the asbestos cleanup that was performed at the site. Baldwin
responded to this letter on July 31, 1935, and subsequently
responded to the July 23rd request letter by providing material
on October 4, 19P5. In the latter response, Baldwin asserted
that the corapany was not in fact potentially responsible for the
asbestos contamination and resulting cleanup et the 6lte.
Based on the written evidence you have presented, the Ae.ency does
not now intend to take further steps to hold Baldwin responsible
for the asbestos cleanup costs associated with the Swainsboro Print
Vorks site. However, please understand that the Agency's position
as stated herein is not Intended to serve as any kind of a peneral
release from liability. The CPA reserves the right to take
further action with respect to this site against Baldwin should
additional evidence, of vtoatever kind or nature, cone to its
attention. In this vein, you should be aware that the Agency
expects Baldwin to suppleraent the Information which the canpany
has previously provided to It should you learn of any evidence
linking your company with the transportation to the Swainsboro
Print VorV.s site, or disposal at that site, of hazardous wastes,
materials, or substances#
A^LEN
TOBIN
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Although EPA does not now vlevr Baldwin as potentially responsible
for the costs of the asbestos cleanup at the Swainsboro site, It
Is possible that one or core of the defendants nay seek contribu-
tion from Baldwin under Section 113(f) of the Superfund Anendnents
and Reauthorization Act, 42 U.S.C. *9613, as anended, for any
liability that they nay have to the Goverroent. Nothing contained
in this letter is intended to relate to such possible third party
actions, or to any Issues concerning contribution,
I would like to take this opportunity to thank you for the co-
operation and assistance you have given the Agency to date in
this case* If you have any questions, or if I can be of any
further assistance, please do not hesitate to contact ne«
Sincerely,
/s/ Patrick M.Tobfa
Patrick M. Tobin
Director
Waste Management Division
c.ct Anthony A. Allano
Steve 1'annlng (POJ)
bcc: Jon Johnston
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AFFIDAVIT OF DON R. MARTIN
STATE OF TENNESSEE:
COUNTY OF DAVIDSON:
I, Don R. Martin, do hereby affirm and state:
1. I am the Vice President, Human Resources, of Genesco Inc.
("the Canpany"). I have personal knowledge of the information set forth
herein.
2. I have reviewed the affidavit of Irvine Eugene Parsons, dated
4--5-17 .At the time such affidavit was made, Mr. Parsons was duly authorized
by the Canpany to make such statements on its behalf, and such statements
are adopted by the Canpany as its own.
3. I have reviewed the affidavit of Sam Tennison Stnithson, dated .
if '3-17 . At the time such affidavit was made, Mr. Smiths on was duly authorized
by the Canpany to make such statements on its behalf, and such statements
are adopted by die Company as its own.
A. I have reviewed the affidavit of Lei and Jones Brothers, dated
. At the time such affidavit was made, Mr. Brothers was duly authorized
by the Canpany to make such statements on its behalf, and such statements
are adopted by the Canpany as its own.
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5. The above information is true and correct to the best of
knowledge and belief.
Don R. Martin
Sworn before we this 3 day of , 19^7
Notary Public
j/y Commission Ex&irea Segt» 841333.
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AFFIDAVIT OF IRVINE EUGEUE PARSONS
STATE OF : „
Tennessee
COUNTY OF : Marshall
I, Irvine Eugene Parsons, do hereby affirm and state:
1. I am the former Plant Manager of the Lewisburg Footwear Manu-
facturing plant, located in Lewisburg, Tennessee, ("the plant"). I
was responsible for the plant's operation and disposal activities from
1969 until the plant ceased production in 1984, and am familiar
with the types of waste materials generated by the Lewisburg plant prior
that time; having been enployed by Genesco since 1946. I have personal
knowledge of the information set forth herein.
2. The plant utilized the Lewisburg Dump from 1960 until the
dump ceased operations in 1979.
3. The adhesive residues disposed of by the plant at the Lewis-
burg Dump contained three types of resins and binders, namely; poly-
urethane, neoprene (synthetic) rubber and latex (natural) rubber.
.To ny knowledge, none of these three materials is a hazardous substance.
4. In the plant's manufacturing process, polyurethane and neoprene
rubber were mixed in an extremely fast-drying solvent. Thus, any
solvent that may have Initially been in contact with the material
would have evaporated and therefore would not be present in the adhesive
residues. The latex rubber was mixed with water as a carrier for use
in the manufacturing process.
5. TptH or manganese were not used in the plant's manufacturing
processes.
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6. At no tine did the plant dispose of, or arrange for the dis-
posal of hazardous substances at the Levisburg Dump.
7. The above information is true and correct to the best of ny
taowledge and belief.
Irvine Eugene Parsons
Sworn before me this day of . 19JfJ
Notary Public
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AFFIDAVIT OF SAM TENNISON SMTIHSON
STATE OF TENNESSEE :
COUNTY OF DAVIDSON:
I, Sam Tennison Smiths on, do hereby affirm and state:
1. I am the former Chief Maintenance Manager of the Lewisburg
Footwear Manufacturing plant, located In Lewisburg, Tennessee ("the
plant"). I was responsible for the operation and maintenance of the
plant's process equipment from April 30, 1960 until the Lewisburg plant
closed in 1984, which was the entire time the Lewisburg Dump was open.
I have personal knowledge of the information set forth herein.
2. The plant utilized the Lewisburg Dump frcm 1960 until the
dunp ceased operations In 1979.
3. The adhesive residues disposed of by the plant at the Lewis-
burg Dung) contained three types of resins and binders, namely;
polyurethane, neoprene (synthetic) rubber and latex (natural) rubber.
None of these three materials is a hazardous substance.
4. In the plant's manufacturing processes, polyurethane and
neoprene rubber were mixed with an extremely fast-drying solvent.
Thus, any solvent that may have initially been in contact with the
material would have evaporated and therefore would not be present in
the adhesive residues. The latex rubber was mixed with water as a
carrier for use In the manufacturing process.
5. Lead or manganese were not used in the plant's manufacturing
processes.
6. At no tine did the plant dispose of or arrange for the disposal
of hazardous substances at the Lewisburg Dunp.
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7. The above information is true and correct to the best of my
knowledge and belief.
Sam Tennison ScrLthson
Strorn before me this J day of @hu.. 19 77
Notary Public
My Commiss»n Expires SegU 9, loqq
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AFFIDAVIT OF LELAND JONES BROTHERS. JR.
STATE OF TENNESSEE:
COUNTY OF DAVIDSON:
I, Leland Jones Brothers, Jr. do hereby affirm and state:
1. I am the former Manager of the Chapel Hill Sole Cutting
plant, located In Chapel Hill, Tennessee ("the plant"). I was familiar
with and/or responsible for the plant's operation over the entire period
during which disposal at the Lewisburg Dump took place. I have personal
knowledge of the information set forth herein.
2. The plant utilized the Lewisburg Dump from 1972 until it ceased
operation in 1979.
3. The triTimings from the leather sole materials disposed of by
the plant at the Lewisburg site consisted entirely of leather tanned
using the "vegetable-tan" process. The triTimings did not contain any
hazardous substances.
4. Lead or manganese were not vised in the plant's manufacturing
processes.
5. A neoprene (synthetic) rubber adhesive was used intermittently
during 1972-1974 to cement shoe components together. The adhesive con-
tained an extremely fast-drying solvent, which would evaporate from the
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adhesives and Che components being cemented together during the
manufacturing process. Thus, any solvent that nay have initially been
in contact with the neoprene material vrould not be present in the
adhesive residues.
6. At no time did the plant dispose of or arrange for the disposal
of hazardous substances at the Lewisburg Ducp.
7. The above iniozmation is true and correct to the best of my
knowledge and belief.
Leland Jones Brothers, Jr.
Notary Public
My Commission Cx£lr£& 2* 1989
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/X\ £ n * A f
| ^ UNITED STATES ENVIRONMENTAL PR|)TE jSott KU Jr
REGION IV
349 COURTLAND STREET. N.E.
ATLANTA. GEORGIA 30365
AUG 2 _5_ 1993
4RC
VIA CERTIFIED MAIL — RETURN RECEIPT REQUESTED
John H. Johnson, Jr./ Esq.
Troutman, Sanders, Lockerman & Ashmore
Candler Building
Suite 1400
127 Peachtree Street, N.E.
Atlanta, Georgia 30303-1810
Re: Marathon Boat Manufacturing Company Superfund Site,
Kershaw, Lancaster County, South Carolina
Dear Mr. Johnson:
On March 6, 1992, the United States Environmental Protection
Agency (EPA) sent a general notice letter to NationsBank/ Inc.
(NationsBank), informing the bank that EPA had information which
led it to believe that NationsBank, Inc., was a potentially
responsible party (PRP) for any clean-up costs associated with
the above-referenced Superfund Site. In a number of telephone
conversations with legal staff in Region IV, and by letters dated
March 30, 1992, and April 21, 1992, to Samantha Clements of the
Emergency Response and Removal Branch, your firm has provided
information indicating that NationsBank acted solely to protect
its security interest and therefore is exempt from liability
under Section 107(a) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA), as amended, 42
U.S.C. § 9607(a).
Based on the information that you have provided to EPA and EPA's
review of its records, EPA is closing its file on NationsBank and
does not now intend to take further steps to hold your client,
NationsBank, responsible for any clean-up costs associated with
the Marathon Boat Manufacturing Company Site. Please be advised,
however, that EPA's position as stated in this letter,is not
intended to release NationsBank from liability. EPA reserves the
right to take further action with respect to this Site against
NationsBank should additional evidence indicate that NationsBank
is a PRP. You or your client must supplement the information
which you have previously provided to EPA should you learn of any
evidence linking NationsBank with the transportation to or
disposal of hazardous substances at the Marathon Boat
Manufacturing Company Site.
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Thank you for your cooperation/ assistance and patience in this
matter. If you should have any questions, please contact
Leslie E. Bell in the Office of Regional Counsel, at (404) 347-
2641, ext. 2231.
Joseph R. Franzmathes
Director
Waste Management Division
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ORDERS
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G
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ACCESS
(SEE UNDER GENERAL RESPONSE ACTIONS)
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H
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REMOVAL -- PARTICIPATE AND COOPERATE
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
345.COURTLAND STREET. N.E.
ATUANTA. GEORGIA 303S5
VIA FACSIMILE AND FEDERAL EXPRESS
Jarred O. Taylor II
Maynard, Cooper & Gale
1901 Sixth Avenue North
Suite 2400, AmSouth/Harbert Plaza
Birmingham, Alabama 35203-2602
Re: Fuels and Chemicals Site
Coaling, Alabama
Dear Mr. Taylor:
Enclosed is a copy of the executed Administrative Order on
Consent (AOC) regarding Phase I of the removal action at the
Fuels and Chemicals Site in Coaling, Alabama. As we have
discussed and pursuant to the terms of the enclosed AOC, the
draft Work Plan, Designation of Contractor and Project
Coordinator, and the Health and Safety Flan are due to the OSC on
or before July 22, 1993.
Also enclosed for the Steering Committee's information is a copy
of the Unilateral Administrative Order regarding Phase I of the
removal action at the Fuels and Chemicals Site issued to Delta
Sun Contracting, Inc., Fuels and Chemicals, Inc., and Polyply,
Inc.
If you have any questions or comments, please do not hesitate to
contact me at the above address or at (404) 347-2641, extension
2283.
Sincerely,
Elizabeth B. Davis
Assistant Regional Counsel
.,60 S74,
W
PROl6
2 0 1993
Enclosure
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UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OP:
Fuels and Chemicals Site
Coaling, Tuscaloosa
County, Alabama
ADMINISTRATIVE ORDER ON
CONSENT FOR REMOVAL ACTION
Proceeding Under Sections
104, 106(a), 107 and 122
of the Comprehensive
Environmental Response,
Compensation, and
Liability Act, as amended,
42 U.S.C. §§ 9604,
9606(a), 9607 and 9622
Docket No.: 93-25-C
Respondents.
I. JURISDICTION AND GBNBRAL PROVISIONS
This Administrative Order on Consent (Order) is entered into
voluntarily by the United States Environmental Protection Agency
(EPA) and Respondents listed in Attachment A. This Order provides
for the performance of Phase I of the removal action by
Respondents in connection with the property located on County Road
14 in Coaling, Tuscaloosa County, Alabama (the Site). This Order
requires Respondents to conduct Phase I of the removal action
described herein to abate an imminent and substantial endangerment
to the public health, welfare of the environment that may be
presented by the actual or threatened release of hazardous
substances at or from the Site.
This Order is issued pursuant to the authority vested in the
President of the United States by sections 104, 106(a), 107 and
122 of the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, 42 U.S.C. §§ 9604, 9606(a), 9607 and 9622,
as amended (CERCLA), and delegated to the Administrator of the EPA
by Executive Order No.; 12580, January 23, 1987, 52 Federal
Register 2923, and further delegated to the EPA Regional
Administrators by EPA Delegation Nos. 14-14-A and 14-14-C, and
further to the Director, Waste Management Division.
EPA has notified the State of Alabama of this action pursuant to
Section 106(a) of CERCLA, 42 U.S.C. § 9606(a).
Respondents' participation in this Order shall not constitute or
be construed as an admission of liability or of EPA's findings or
conclusions contained in this Order except in a proceeding to
enforce the terms of this Order. Respondents agree to comply with
and be bound by the terms of this Order. Respondents further
agree that they will not contest the basis or validity of this
Order or its terms.
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II. PARTIES BOUND
This Order applies to and is binding upon BPA, and upon
Respondents and Respondents heirs, successors and assigns. Any
change in ownership or corporate status of Respondents including,
but not limited to, any transfer of assets or real or personal
property shall not alter Respondents' responsibilities under this
Order. Respondents are jointly and severally liable for carrying
out all activities required by this Order. Compliance or
noncompliance by one or more Respondent (s) with any provision of
this Order shall not excuse or justify noncompliance by any other
Respondents.
Respondents shall ensure that their contractors, subcontractors,
and representatives receive a copy of this Order and comply with
this Order. Respondents shall be responsible for any
noncompliance with this Otder.
III. FINDINGS OF FACT
For the purpose of this Order, EPA makes the following findings of
fact:
1. The Site is a 57 acre parcel of land located on County
Road 14 in Coaling, Tuscaloosa County, Alabama. The
Site is located in a sparsely, populated area with
residences located approximately one-half mile .to the
north and west of the Site. An unnamed tributary to the
Lye Branch flows through the Site and has been dammed to
form a pond.
2. The facility, formerly T & S Salvage, Inc., operated
approximately from 1981 to 1992 as a fuels blending and
treating facility. The Site was abandoned in September,
1992.
3. EPA initially inspected the Site on February 4, 1993.
At that time, there were on-site 31 tanks with a total
capacity of 840,000 gallons. In addition, there were
approximately 1200 drums on site. A partially
demolished building remained which formerly housed two
boilers lying nearby. The boilers were used to treat
materials prior to storage.
4. Previously, the facility operated under a permit issued
in accordance with the Resource Conservation and
Recovery Act, 42 U.S.C. § 6901 et sea.. as amended
(RCRA), authorizing the treatment and storage of
specified hazardous wastes in four tanks to be blended
with waste oil and sold as fuel. On November 1, 1990,
the Alabama Department of Environmental Management
(ADEM) inspected the Fuels and Chemicals facility and
- 2 -
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determined that the facility had violated the permit by
storing hazardous waste in 11 unpermitted tanks.
*
5. In April 1993, EPA conducted an investigation to
determine the materials and volumes contained in the
tanks at the Site. Preliminary results indicate the
presence of hazardous wastes in the tanks, including:
lead, chromium, mercury, perchloroethene,
trichloroethene, methylene chloride, and 1,1,1-
trichloroethane. A total of approximately 800,000
gallons of waste is currently stored in the on-site
tanks.
6. In April 1993, EPA arranged for the transfer of liquids
from five vulnerable tanks into five additional frac
tanks. EPA positioned the five additional frac tanks
inside the fenced, partially bermed containment area.
7. On June 8, 1993, EPA observed that a portion of the
contents of one of the tanks had escaped from the tank.
On June 11, 1993, EPA arranged for the transfer of a
portion of the contents of the tank to drums on site to
help prevent further releases from the tank.
IV. CONCLUSIONS OF LAW AND DETERMINATIONS
Based on the Findings of Fact set forth above and the
Administrative Record supporting this removal action, EPA has
determined that:
1. The Site is a "facility" as defined by section 101(9) of
CERCLA, 42 U.S.C. § 9601(9).
2. The contaminants found at the Site, as identified in the
Findings of Fact'above, include "hazardous substance(s)"
as defined by section 101(14) of CERCLA, 42 U.S.C. §
9601(14).
3. Each Respondent is a "person" as defined by section
101(21) of CERCLA, 42 U.S.C. § 9601(21).
4. Each Respondent may be liable under section 107(a) of
CERCLA, 42 U.S.C. § 9607(a).
5. The conditions described in the Findings of Fact above
constitute an actual or threatened "release" of a
hazardous substance from the facility as defined by
sections 101(22) of CERCLA, 42 U.S.C. § 9601(22).
6. The conditions present at the facility constitute an
imminent and substantial endangerment to public health,
welfare, or the environment. Factors that may be
considered are set forth in section 300.415(b)(2) of the
- 3 -
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National Oil and Hazardous Substances Pollution
Contingency Plan, as amended, 40 C.F.R. Part 300 (NCP).
7. The actual or threatened release of hazardous substances
from the Site may present an imminent and substantial
endangerment to the public health, welfare, or the
environment within the meaning of section 106(a) of
CERCLA, 42 U.S.C. § 9606(a).
8. The Phase I response actions required by this Order are
necessary to protect the public health, welfare, or the
environment, and are not inconsistent with the NCP or
CERCLA and constitute a removal action within the
meaning of CERCLA and the NCP.
V. ORDER
Based upon the foregoing Findings of Fact, Conclusions of Law,
Determinations, and the Administrative Record for this Site, it is
hereby ordered and agreed that Respondents shall comply with the
following provisions, including but not limited to all attachments
to this Order, and all documents incorporated by reference into
this Order, and perform the following actions:
1. Designation of Contractor. Project Coordinator, and On-Scene
Coordinator
Respondents shall perform the removal action required by this
Order themselves or retain a contractor to perform the removal
action. Respondents shall notify EPA of Respondents'
qualifications or the name and qualifications of such contractor
by July 22, 1993. Respondents shall also notify EPA of the names
and qualifications of any other contractors or subcontractors
retained to perform the removal action under this Order at least
three (3) days prior to commencement of the removal action. EPA
retains the right to disapprove of any, or all, of the contractors
and/or subcontractors retained by Respondents, or of .Respondents'
choice of themselves to do the removal action. If EPA disapproves
of a selected contractor or the Respondents, Respondents shall
retain a different contractor, or notify EPA that Respondents will
perform the removal action themselves, within five (5)"days
following EPA's disapproval and shall notify EPA of the
contractor's or Respondents' name(s) and qualifications within
five (5) days of EPA's disapproval. EPA agrees that the mere fact
that any such contractor or subcontractor is a potentially
responsible party (PRP) shall not disqualify such entity from
performing any or all of the removal action.
By July 22, 1993, Respondents shall designate a Project
Coordinator who shall be responsible for administration of all the
Respondents' actions required by the Order. Respondents shall
submit the designated coordinator's name, address, telephone
number, and qualifications to EPA. To the greatest extent
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possible, the Project Coordinator shall be present on Site or
readily available during Site worjc. EPA retains the right to
disapprove of any Project Coordinator named by Respondents. If
EPA disapproves of a selected Project Coordinator, Respondents
shall retain a different Project Coordinator and shall notify EPA
of that person's name, address, telephone number, and
qualifications within five (5) days following EPA'a disapproval.
Receipt by Respondents' Project Coordinator of any notice or
communication from PPA relating to this Order shall constitute
receipt by all Respondents.
EPA and Respondents shall have the right to change their
designated OSC or Project Coordinator, The party desiring such a
change shall notify the other at least three (3) days before such
a change is made. Notification may initially be made orally, but
shall be followed promptly by written notice.
Respondents shall direct all submissions required by this Order in
triplicate to the OSC addressed as follows:
Gail Scogin
On-Scene Coordinator
U.S. EPA, Region IV
345 Courtland Street, N.E.
Atlanta, Georgia 30365
Documents to be submitted to Respondents' Project Coordinator
should be sent to:
[TO BE DESIGNATED]
2.0 Work to Be Performed
Respondents shall perform, at a minimum, the following response
activities. Respondents shall arrange for the removal of waste
materials stored in on-site tanks and drums, as described below,
to reduce or eliminate the possibility of releases from those
tanks and drums in a manner satisfactory to EPA. Specifically,
Respondents agree to perform one of the following actions at the
Site:
Remove all pumpable liquids from tanks and drums on-site.
Liquids removed from the tanks will be either:
(i) temporarily placed in tanks on the site in a manner
satisfactory to EPA or temporarily placed in additional
tanks until disposal can be arranged,
(ii) disposed of off-site in a manner satisfactory to EPA, or
(iii) some combination of (i) and (ii).
2.1 Work Plan and Implementation
On or before July 22, 1993, the Respondents shall submit to EPA
for approval a draft Work Plan for performing the removal action
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set forth above. The draft Work Plan shall provide a description
of, and an expeditious schedule f6r, the actions required by this
Order.
EPA may approve, disapprove, require revisions to, or modify the
draft Work Plan consistent with the requirements of this Order and
the scope of work described in Section 2.0 of this Order. If EPA
requires revisions. Respondents shall submit a revised draft Work
Plan within five (5) days of receipt of EPA?b notification of the
required revisions. Respondents shall implement the Work Plan as
finally approved in writing by EPA in accordance with the schedule
approved by EPA. Once approved,, or approved with modifications,
the Work Plan, the schedule, and any subsequent modifications
shall be fully enforceable under this Order. Respondents shall
notify EPA at least 48 hours prior to performing any on-site work
pursuant to the EPA-approyed Work Plan. Respondents shall not
commence or undertake any' removal action on the site without prior
EPA approval.
2.2 Health and Safety Plan
On or before July 22, 1993, the Respondents shall submit for EPA
review and comment a plan that ensures the protection of the
public health and safety during performance of on-site work under
this Order. This plan shall be prepared in accordance with EPA's
current Standard Operating Safety Guide, dated November 1984, and
most current update. In addition, the plan shall comply with all
current applicable Occupational Safety and Health Administration
(OSHA) regulations found at 29 C.F.R. Part 1910. Respondents
shall incorporate all changes to the plan recommended by EPA and
implement the plan during the pendency of the removal action.
2.3 Quality Assurance and Sampling
All sampling and analyses performed pursuant to this Order shall
conform to EPA direction, approval, and guidance regarding
sampling, quality assurance/quality control (QA/QC), data
validation, and chain of custody procedures. Respondents shall
ensure that the laboratory used to perform the analyses
participates in a QA/QC program that complies with the appropriate
EPA guidance. Respondents shall follow the following documents,
as appropriate, as guidance for QA/QC and sampling: "Quality
Assurance/Quality Control Guidance for Removal Activities:
Sampling QA/QC Plan and Data Validation Procedures," OSWER
Directive Number 9360.4-01; "Environmental Response Team Standard
Operating Procedures," OSWER Directive Numbers 9360.4-02 through
9360.4-08.
Upon request by EPA, Respondents shall have such a laboratory
analyze samples submitted by EPA for quality-assurance monitoring.
Respondents shall provide t;o EPA the, quality assurance/quality
control procedures followed by all sampling teams.and laboratories
performing data collection and/or analysis.
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Upon request by EPA, Respondents shall allow EPA or its authorized
representatives to fake split and/or duplicate samples of any
samples collected by Respondents while performing work under this
Order. Respondents shall notify EPA not less than three (3) days
in advance of any sample collection activity. EPA shall have the
right to take any additional samples that it deems necessary.
2.4 Post-Removal Site Control
In accordance with the Work Plan schedule, or as otherwise
directed by EPA, Respondents shall submit a proposal for post-
removal Site control consistent with the requirements of this
Order and.section 300.415(k) of the NCP and OSWER Directive
9360.2-02. Upon EPA approval, Respondents shall implement such
controls and shall provide EPA with documentation of all post-
removal Site control arrangements.
2.5 Reporting
Respondents shall submit a written progress report to EPA
concerning actions undertaken pursuant to this Order every
thirtieth (30th) day after the date of receipt of EPA's approval
of the Work Plan until termination of this Order, unless otherwise
directed by the OSC. These reports shall describe all significant
developments during the preceding period, including the actions
performed and any problems encountered, analytical data received
during the reporting period, and the developments anticipated
during the next reporting period, including a schedule of actions
to be performed, anticipated problems, and planned resolutions of
past or anticipated problems.
Any Respondent(s) that own(s) any portion of the Site shall, at
least thirty (30) days prior to the conveyance of any interest in
real property at the Site, give written notice that the property
is subject to this Order to the transferee and written notice to
EPA and the State of the proposed conveyance, including the name
and address of the transferee. Respondent(s) agree(s) to require
that its successor comply with the immediately preceeding sentence
and Section Three - Access to Property and Information.
2.6 Final Report
Within thirty (30) days after completion of all removal actions
required under this Order, the Respondents shall submit for EPA
review a final report summarizing the actions taken to comply with
this Order. The final report shall conform, at a minimum, with
the requirements set forth in section 300.165 of the NCP entitled
"OSC Reports" and with OSWER Directive No. 9360.3-03 - "Removal
Response Reporting." The final report shall include a good faith
estimate of total costs or a statement of actual costs incurred in
complying with the Order, a listing of quantities and types of
materials removed off-site or handled on-site, a discussion of
removal and disposal options considered for those materials, a
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listing of the ultimate destination of those materials, a
presentation of the analytical results of all sampling and
analyses performed, and accompanying appendices containing all
relevant documentation generated during the removal action (e.g..
manifests, invoices, bills, contracts, and permits). The final
report shall also include the following certification signed by a
person who supervised or directed the preparation of that report:
Under penalty of law, I certify that to the
best of my knowledge, after appropriate
inquiries of all relevant persons involved in
the preparation of the report, the information
submitted is true, accurate, and complete. I
am aware that there are significant penalties
for submitting false information, including
the possibility-of fine and imprisonment for
knowing violations.
3. Access to Property and Information
Respondents shall provide, and/or obtain access to the Site and
off-site areas to which access is necessary to implement this
Order, and provide access to all records and documentation related
to the conditions at the Site and the actions conducted pursuant
to this Order. Such access shall be provided to EPA employees,
contractors, agents, consultants, designees, representatives, and
State of Alabama representatives. These individuals shall be
permitted to move freely at the Site and appropriate off-site
areas, in order to conduct actions which EPA determines to be
necessary. Respondents shall submit to EPA, upon request, the
results of all sampling or tests and all other data generated by
Respondents or their contractor(s), or on the Respondents' behalf
during implementation of this Order.
Where action under this Order is to be performed in areas owned by
or in possession of someone other than Respondents, Respondents
shall use their best efforts to obtain all necessary access
agreements within seven (7) days after the effective date of this
Order,_ or as otherwise specified in writing by the OSC.
Respondents shall immediately notify EPA if after using their best
efforts they are unable to obtain such agreements. Respondents
shall describe in writing their efforts to obtain access. EPA may
then assist Respondents in gaining access, to the extent necessary
to effectuate the response .actions described herein, using such
means as EPA deems appropriate. Respondents shall reimburse EPA
for all costs and attorney's fees incurred by the United States in
obtaining such access.
4. Record Retention. Documentation, Availability of Information
Respondents shall preserve all documents and information relating
to work performed under this Order, or relating to the hazardous
substances found on or released from the Site, for ten years
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following completion of the removal actions required by this
Order. At the end of this ten ye&r period and thirty (30) days
before any document or information is destroyed. Respondents shall
notify EPA that such documents and information are available to
EPA for inspection, and upon request, shall provide the originals
or copies of such documents and information to EPA. In addition.
Respondents shall provide documents and information retained under
this section at any time before expiration of the ten year period
at the written request of EPA.
Respondents may assert a business confidentiality claim pursuant
to 40 C.F.R. § 2.203(b) with respect to part or all of any
information submitted to EPA pursuant to this Order, provided such
claim is allowed by section 104(e)(7) of CERCLA, 42 U.S.C. §
9604(e)(7). If no such claim accompanies the information when it
is received by EPA, EPA may make it available to the public
without further notice to'Respondents.
Respondents shall maintain a running log of privileged. documents
on a document-by-document basis, containing the date, author(s),
addressee(s), subject, the privilege or grounds claimed (e.g.,
attorney work product, attorney-client), and the factual basis for
assertion of the privilege. Respondents shall keep the "privilege
log" on file and available for inspection. EPA may at any time
challenge claims of privilege.
5. Off-Site Shipments
All hazardous substances, pollutants or contaminants removed off-
site pursuant to this Order for treatment, storage, or disposal
shall be treated, stored, or disposed of at a facility in
compliance, as determined by EPA, with 42 U.S.C. § 9621(d)(3), and
the "Revised Procedures for Implementing Off-Site Response
Actions,'! OSWER Directive Number 9834.11, November 13, 1987.
Regional Offices will provide information on the acceptability of
a facility under section 121(d)(3) of CERCLA and the above
directive.
6. Compliance With Other Laws
Respondents shall perform all actions required pursuant to this
Order in accordance with all applicable local, state, and federal
laws and regulations except as provided in CERCLA § 121(e) and 40
C.F.R. § 300.415(i). In accordance with 40 C.F.R. § 300.415(i),
all on-site actions required pursuant to this Order shall, to the
extent practicable, as determined by EPA, considering the
exigencies of the situation, attain applicable or relevant and
appropriate requirements (ARARs) under federal environmental or
state environmental or facility siting laws. {See, "The Superfund
Removal Procedures: Guidance on the Consideration of ARARs During
Removal Actions," OSWER Directive No. 9360.3-02, August 1991).
Respondents shall identify ARARs in the Work Plan subject to EPA
approval.
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7. Emergency Response and Notification of Releases
If any incident; or change in site conditions during the actions
conducted pursuant to this Order causes or threatens to cause an
additional release of hazardous substances from the Site or an
endangerment to the public health, welfare, or the environment,
Respondents shall immediately take all appropriate action. The
Respondents shall take these actions in accordance with all
applicable provisions of this Order, including, but not limited to
-the Health and Safety Plan, in order to prevent, abate or minimize
such release or endangerment caused or threatened by the release.
Respondents shall also immediately notify the OSC or, in the event
of his/her unavailability, shall notify the Regional Duty Officer
of the incident or site conditions. If Respondents fail to
respond, EPA may respond to the release or endangerment and
reserve the right to pursue cost recovery.
In addition, in the event of any release of a hazardous substance
from the Site, Respondents shall immediately notify EPA's OSC and
the National Response Center at telephone number (800) 424-8802.
Respondents shall submit a written report to EPA within seven (7)
days after each release, setting forth the events that occurred
and the measures taken or to be taken to mitigate any release or
endangerment caused or threatened by the release and to prevent
the reoccurrence of such a release. This reporting requirement is
in addition to, not in lieu of, reporting under section 103(c) of
CERCLA and section 304 of the Emergency Planning and Community
Right-To-Know Act of 1986, 42 U.S.C. §§ 11001, et sea.
8. Efforts To Coordinate With Non-Parties To The Order
(A) Respondents shall make best efforts to coordinate in the
performance of the work required by this Order with any person not
a party to this Order who offers to perform or, in lieu of
performance to pay for, in whole or in part, the work required by
this Order. Best efforts to coordinate shall include, at a
minimum:
(i) Replying in writing within a reasonable period of time
to any offer to perform or pay for the work required by this
Order?
(ii) Engaging in good-faith negotiations with any person not
a party to this Order who offers to perform or to pay for the
work required by this Order; and
(iii) good-faith consideration of a good-faith offer to
perform or pay for the work required by this Order.
(B) On request of EPA and subject to any applicable claims
of privilege(s), Respondents shall submit to EPA all documents in
their possession, custody, or control relating to (i) any offer to
perform or pay for, or (ii) the performance of or payment for, the
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work required by this Order of any party or non-party to this
Order.
VI. AUTHORITY OF THE EPA ON-SCEHE COORDINATOR
The OSC shall be responsible for overseeing the Respondents'
implementation of this Order. The OSC shall have the authority
vested in an OSC by the NCP, including the authority to halt,
conduct, or direct any work required by this Order, or to direct
any other removal action undertaken at the Site. Absence of the
OSC from the Site shall not be cause for stoppage of work unless
specifically directed by the OSC.
VII. DISPUTE RESOLUTION
The parties to this Order shall attempt to resolve, expeditiously
and informally, any disagreements concerning this Order.
Any disputes arising, under this Order that cannot be resolved
informally shall be resolved as follows: If Respondents object to
any EPA action taken pursuant to this Order, Respondents shall
notify EPA in writing of their objections within fourteen (14)
days of such action, unless the objections have been informally
resolved. Respondents' written objections shall define the
dispute, state the basis of Respondents' objections, and shall be
sent certified mail, return receipt requested, traceable overnight
delivery, or hand-delivered. EPA and Respondents then have an
additional fourteen (14) days from the receipt by EPA of the
notification of objection to reach agreement. If agreement cannot
be reached on any issue within the fourteen (14) day period, the
Director, Waste Management Division, EPA Region IV, will issue a
written statement of the decision to Respondents. The Division
Director's determination is EPA's final decision. If Respondents
do not comply or perform with respect to the issue in dispute as
determined by the Division Director, EPA reserves the right to
perform the work itself, to seek reimbursement from Respondents,
and/or to seek other appropriate relief.
Respondents' obligations under this Order shall not be tolled by
submission of any objection for dispute resolution under this
section.
VIII. FORCE MAJEURE
Respondents agree to perform all requirements under this Order
within the time limits established under this Order, unless the
performance is delayed by a force majeure. For purposes of this
Order, a force majeure is defined as any event arising from causes
beyond the control of Respondents or of any entity controlled by
Respondents, including but not limited to their contractors and
subcontractors, that delays or prevents performance of any
obligation under this Order despite Respondents' best efforts to
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fulfill the obligation. Force majeure does not include financial
inability to complete the work or-'increased cost of performance.
Respondents shall notify EPA orally within twenty-four (24) hours
after the event, and in writing within three (3) days after
Respondents become or should have become aware of events which
constitute a force majeure. Such notice shall: identify the
event causing the delay or anticipated delay; estimate the
anticipated length of delay, including necessary demobilization
and re-mobilization; state the measures taken or to be taken to
minimize the delay; and estimate the timetable for implementation
of the measures. Respondents shall take all reasonable measures
to a avoid and minimize the delay. Failure to comply with the
notice provision of this section shall waive aLny claim of force
majeure by the Respondents.
If EPA determines a delay in performance of a requirement under
this Order is or was attributable to a force majeure, the time
period for performance of that requirement shall be extended as
deemed necessary by EPA. Such an extension shall not alter
Respondents' obligation to perform or complete other tasks
required by the Order which are not directly affected by the force
majeure.
IX. STIPULATED AND STATUTORY PENALTIES
For each day, or portion thereof, that Respondents fail to perform
fully any requirement of the Order in accordance with the 'schedule
set forth hereunder, Respondents shall be liable as follows:
A. For each day during which Respondents fail to perform in
accordance with the schedules contained in this Order and the
various plans and reports required under this Order, any of the
following activities:
i. commencement of work as prescribed in this Order;
ii. submittal and, if necessary, modification of the
final report;
Respondents shall be jointly and severally liable to EPA for
stipulated penalties in the following amounts:
Period of Failure to Comply Penalty Per Violation Per Dav
1st through 14th day $500
15th through 30th day $1000
31st day and beyond $2000
B. Respondents shall be jointly and severally liable to EPA
for stipulated penalties in the amount of $100 per violation each
day during which Respondents fail to comply with all other
requirements of this Order.
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C. Upon written demand by EPA, payment shall be made and
interest shall accrue on late payments. Nothing herein shall
prevent the simultaneous accrual of separate penalties for
separate violations of this Ofcder.
X. RESERVATION OF RIGHTS
Except as specifically provided in this Order, nothing herein
shall limit the power and authority of EPA or the United States to
take, direct, or order all actions necessary to protect public
health, welfare, or the environment or to prevent, abate, or
minimize an actual or threatened release of hazardous substances,
pollutants or contaminants, or hazardous or solid waste on, at, or
from the Site. Further, nothing herein shall prevent EPA from
seeking legal or equitable relief to enforce the terms of this
Order, from taking other legal or equitable action as it deems
appropriate and necessary; or from requiring the Respondents in
the future to perform additional activities pursuant to CERCLA or
any other applicable law. EPA reserves the right to bring an
action against Respondents under Section 107 of CERCLA, 42 U.S.C.
§ 9607, for recovery of any response costs incurred by the United
States related to this Order or the Site and not reimbursed by
Respondents.
XI. OTHER CLAIMS
By issuance of this Order, the United States and EPA assume no
liability for injuries or damages to persons or property resulting
from any acts or omissions of Respondents. The United States or
EPA shall not be deemed a party to any contract entered into by
the Respondents or their directors, officers, employees, agents,
successors, representatives, assigns, contractors, or consultants
in carrying out actions pursuant to this Order.
Except as expressly provided in Section XII - Covenant Not To Sue,
nothing in this Order constitutes a satisfaction of or release
from any claim or cause of action against the Respondent(s) or any
person not a party to. this Order, for any liability such person
may have under CERCLA, other statutes, or the common law,
including but not limited to any claims of the United States for
costs, damages and interest under sections 106(a) and 107(a) of
CERCLA, 42 U.S.C. § 9606(a) and 9607(a).
This Order does not constitute a preauthorization of funds under
section 111(a)(2) of CERCLA, 42 U.S.C. § 9611(a)(2). The
Respondent(s) waive(s) any claim to payment under sections 106(b),
111, and 112 of CERCLA, 42 U.S.C. §§ 9606(b), 9611, and 9612,
against the United States or the Hazardous Substance Superfund
arising out of any action performed under this Order.
No action or decision by EPA pursuant to this Order shall give
rise to any right to judicial review except as set forth in
section 113(h) of CERCLA, 42 U.S.C. § 9613(h).
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XII. COVENANT NOT TO SOE
Except as otherwise specifically provided ih this .Order, upon
issuance of the EPA notice referred to in Section XVII - Notice of
Completion, EPA covenants not to sue Respondents for judicial
imposition of damages or civil penalties or to take administrative
action against Respondents for any failure to perform response
actions agreed to.in this Order except as otherwise reserved
herein.
This covenant not to sue is conditioned upon the complete and
satisfactory performance by Respondents of their obligations under
this Order. This covenant not to sue extends only to the
Respondents and does not extend to any other person.
XIII. CONTRIBUTION PROTECTION
With regard to claims for contribution against Respondents for
matters addressed in this Order, the Parties hereto agree that the
Respondents are entitled to protection from contribution actions
or claims to the extent provided by section 113(f)(2) and
122(h)(4) of CERCLA, 42 U.S.C. §§ 9613(f)(2) and 9622(h)(4).
Nothing in this Order precludes the United States or the
Respondents from asserting any claims, causes of action or demands
against any persons not parties to this Order for indemnification,
contribution, or cost recovery.
XIV. INDEMNIFICATION
Respondents agree to indemnify, save and hold harmless the United
States, its officials, agents, contractors, subcontractors,
employees and representatives from any and all claims or causes of
action: (A) arising from, or on account of, acts or omissions of
Respondents, Respondents' officers, heirs, directors, employees,
agents, contractors, subcontractors, receivers, trustees,
successors or assigns, in carrying out actions pursuant to this
Order; and (B) for damages or reimbursement arising from or on
account of any contract, agreement, or arrangement between any one
or more of Respondents, and any persons for performance of work on
or relating to the Site, including claims on account of
construction delays. In addition, Respondents agree to pay the
United States all costs incurred by the United States, including
litigation costs arising from or on account of claims made against
the . .United States based on any of the acts or omissions referred
to in the preceding paragraph.
XV. INSURANCE
At least seven (7) days prior to commencing any on-site work under
this Order, Respondents shall secure, and shall maintain for the
duration of this Order, comprehensive general liability insurance
and automobile insurance with limits of one million dollars,
combined single limit. Within the same time period, the
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Respondents shall provide EPA with certificates of such insurance
and a copy of each insurance policy. If the Respondents
demonstrate by evidence satisfactory to EPA that any contractor or
subcontractor maintains insurance equivalent to that described
above, or insurance covering some or all of the same risks but in
an equal or lesser amount, then the Respondents need provide only
that portion of the insurance described above which is not
maintained by such contractor or subcontractor.
XVI. MODIFICATIONS
Modifications to any plan or schedule may be made in writing by
the OSC or at the 0$C's oral- direction. Any other requirements of
the Order may be modified in writing by mutual agreement of the
parties. If Respondents seek permission to deviate from any
approved Work Plan or schedule, Respondents' Project Coordinator
shall submit a written request to EPA for approval outlining the
proposed Work Plan modification and its basis.
No informal advice, guidance, suggestion, or comment by EPA
regarding reports, plans, specifications, schedules, or any other
writing submitted by Respondents shall relieve the Respondents of
their obligations to obtain such formal approval as may be
required by this Order, and to comply with all requirements of
this Order unless it is formally modified.
XVII. NOTICE OF COMPLETION
When EPA determines, after EPA's review of the Final Report, that
all removal actions have been fully performed in accordance with
this Order, with the exception of any continuing obligations
required by this Order, EPA will provide notice to the
Respondents. If EPA determines that any removal actions have not
been completed in accordance with this Order, EPA will notify the
Respondents, provide a list of the deficiencies, and require that
Respondents modify the Work Plan if appropriate in order to
correct such deficiencies. The Respondents shall implement the
modified and approved Work Plan and shall submit a modified Final
Report in accordance with the EPA notice. Failure by Respondents
to implement the approved modified Work Plan shall be a violation
of this Order.
XVIII. SEVERABILITY
If a court issues an order that invalidates any provision of this
Order or finds that Respondents have sufficient cause not to
comply with one or more provisions of this Order, Respondents
shall remain bound to comply with all provisions of this Order not
invalidated or determined to be subject to a sufficient cause
defense by the court's order.
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XIX. EFFECTIVE DATE
This Order shall be effective upon signature by EPA.
The undersigned representatives of Respondents certify that they
are fully authorized to enter into the terms and conditions of
this Order and to bind the parties they represent to this Order.
BY
Title_
Date
It is so ORDERED and AGREED this
Joseph R. Franzmathes
Director
Waste Management Division
U.S. EPA/ Region IV
345 Courtland Street, N.E.
Atlanta, Georgia 30365
day of
, 1993,
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*04 347 52485# 2
The undersigned representatives of Respondents certify that they
are £ully authorised to. enter into Che terofc and conditions of
this Order and to bind the parties they represent to this order.
MARHN Sprocket; &/Qeaj>£/ Inc.
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Date July 16, 1993 '
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The undersigned representatives of Respondents certify that they
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' TOIN CORPORATION, DSA
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07-19-1993 1H05PM Clein ftner»lo* Corp. 918 664 S94? p.02
The undersigned representatives of Respondents certify that they
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FUELS AND CHEMICALS SITE
Administrative Order On Consent
Docket No." 93-25-C
Attachment A
Toin Corporation USA
USX Corporation
Arena Controls, Inc.
Clean America
Martin Sprocket & Gear
Icon Industries
Northwest Petrochemical Corporation
Sloss Industries Corp.
Shelby Die Casting Company
Towers Exploration, Inc.
Black Warrior Methane Corporation
-------
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF
Fuels and Chemicals Site
Coaling, Tuscaloosa
County, Alabama
UNILATERAL ADMINISTRATIVE ORDER
FOR REMOVAL RESPONSE ACTIVITIES
Proceeding Under Section 106(a)
of the Comprehensive
Environmental Response,
Compensation, and
Liability Act, as amended,
42 U.S.C. § 9606(a)
Respondents.) Docket No.: 93-26-C
I. JURISDICTION AND GENERAL PROVISIONS
This Order is issued pursuant to the authority vested in the
President of the United States by section 106(a) of the
Comprehensive Environmental Response, Compensation, and Liability
Act.of 1980, 42 U.S.C. § 9606(a), as amended (CERCLA), and
delegated to the Administrator of the United States Environmental
Protection Agency (EPA) by Executive Order No. 12580, January 23,
1987, 52 Federal Register 2923, and further delegated to the
Regional Administrators by EPA Delegation Nos. 14-14-A and 14-14-B
and further to the Director, Waste Management Division.
This Order pertains to property located on County Road 14 in
Coaling, Tuscaloosa County, Alabama (the Site). This Order
requires the Respondents to conduct removal actions described
herein to abate an imminent and substantial endangerment to the
public health, welfare or the environment that may be presented by
the actual or threatened release of hazardous substances at or
from the Site.
EPA has notified the State of Alabama of this action pursuant to
section 106(a) of CERCLA, 42 U.S.C. § 9606(a).
This Order applies to and is binding upon Respondents listed in
Attachment A and Respondents' successors and assigns. Any change
in ownership or corporate status of Respondents including, but not
limited to, any transfer of assets or real or personal property
shall in no way alter Respondents' responsibilities under this
Order. Respondents are jointly and severally liable for carrying
out all activities required by this Order. Compliance or
noncompliance by one or more Respondents with any provision of
this Order shall not excuse or justify noncompliance by any other
Respondents.
II. PARTIES BOUND
-------
Respondents shall ensure that their contractors, subcontractors,
and representatives receive a copy of this Order and comply with
this Order. Respondents shall be responsible for any
noncompliance with this Order..
III. FINDINGS OF FACT
For the purpose of this Order, EPA makes the following findings of
fact:
1. The Site is a 57 acre parcel of land located on County
Road 14 in Coaling, Tuscaloosa County, Alabama. The
Site is located in a sparsely populated area with
residences located approximately one-half mile to the
north and west of the Site. An unnamed tributary to the
Lyie Branch flows through the' Site and has been dammed to
form a pond.
2. The facility, formerly T & S Salvage, Inc., operated
approximately from 1981 to 1992 as a fuels blending and
treating facility. The Site was abandoned in September,
1992.
3. EPA initially inspected the Site on February 4, 1993.
At that time, there were on-site 31 tanks with a total
capacity of 840,000 gallons. In addition, there were
approximately 1200 drums on site. A partially
demolished building remained which formerly housed two
boilers lying nearby. The boilers were used to treat
materials prior to storage.
4. Previously, the facility operated under a permit issued
in accordance with the Resource Conservation and
Recovery Act, 42 U.S.C. § 6901 et sea., as amended
(RCRA), authorizing the treatment and storage of
specified hazardous wastes in four tanks to be blended
with waste oil and sold as fuel. On November 1, 1990,
the Alabama Department of Environmental Management
(ADEM) inspected the Fuels and Chemicals facility and
determined that the facility had violated the permit by
storing hazardous waste in 11 unpermitted tanks.
5. In April 1993, EPA conducted an investigation to
determine the materials and volumes contained in the
tanks at the Site. Preliminary results indicate the
presence of hazardous wastes in the tanks, including:
lead, chromium, mercury, perchloroethene,
trichloroethene, methylene chloride, and 1,1,1-
trichloroethane. A total of approximately 800,000
gallons of waste is currently stored in the on-site
tanks.
- 2 -
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6. In April 1993, EPA-arranged for the transfer of liquids
from five vulnerable tanks into five additional frac
tanks. EPA positioned the five additional frac tanks
inside the fenced, partially bermed containment area.
7. On June 8, 1993, EPA observed that a portion of the
contents of one of the tanks had escaped from the tank.
On June 11, 1993, EPA arranged for the transfer of a
portion of the contents of the tank to drums on site to
help prevent further releases from the tank.
IV. CONCLUSIONS OF LBB AND DETERMINATIONS
Based on the Findings of Fact set forth above, and the
Administrative Record supporting this removal action, EPA has
determined that:
1. The Site is a "facility" as defined by section 101(9) of
CERCLA, 42 U.S.C. § 9601(9).
2. The contaminants found at the Site, as identified in the
Findings of Fact above, include "hazardous substance(s) H
as defined by section 101(14) of CERCLA, 42 U.S.C. §
9601(14).
3. Each Respondent is a "person" as defined by section
101(21) of CERCLA, 42 U.S.C. § 9601(21).
4. Each Respondent may be liable under section 107(a) of
CERCLA, 42 U.S.C. § 9607(a).
5. The conditions described in the Findings of Fact above
constitute an actual or threatened "release" of a
hazardous substance from the facility as defined by
sections 101(22) of CERCLA, 42 U.S.C. § 9601(22).
6. The conditions present at the facility constitute an
imminent and substantial endangerment to public health,
welfare, or the environment. Factors that may be
considered are set forth in section 300.415(b)(2) of the
National Oil and Hazardous Substances Pollution
Contingency Plan, as amended, 40 C.F.R. Part 300 (NCP) .
7. The actual or threatened release of hazardous substances
from the Site may present an imminent and substantial
endangerment to the public health, welfare, or the
environment within the meaning of section 106(a) of
CERCLA, 42 U.S.C. § 9606(a).
8. The Phase I response actions required by this Order are
necessary to protect the public health, welfare, or the
environment, and are not inconsistent with the NCP or
- 3 -
-------
CERCLA and constitute a removal action within the
meaning of CERCLA and the NCP.
Vi ORDER
Baaed upon the foregoing Findings of Fact, Conclusions of Law,
Determinations, and the Administrative Record for this Site, EPA
hereby orders that Respondents comply with the following
provisions, including but not limited to all attachments to this
Order, all documents incorporated by reference into this Order,
and all schedules and deadlines in this Order, attached to this
Order,. or incorporated by reference into this Order, and perform
the following actions:
1. Notice of Intent to Comply
Each Respondent shall notify EPA in writing on or within five (5)
days after the effective date of this Order of Respondent's
irrevocable intent to comply with this Order and shall specify
Respondents7 proposed method of compliance. Failure of any
Respondent to provide such notification within this time period
shall be a violation of this Order by such Respondent.
2". Designation of Contractor. Project Coordinator, and On-Scene
Coordinator
Respondents shall perform the removal action themselves or retain
a contractor to perform the removal action. Respondents shall
notify EPA of Respondents' qualifications or the hames and
qualifications of such contractors within seven (7) days of the
effective date of this Order. Respondents shall also notify EPA
of the names and qualifications of any other contractors or
subcontractors retained to perform the removal action under this
Order at least (3) days prior to commencement of such removal
action. EPA retains the right to disapprove of any, or all, of
the contractors and/or subcontractors retained by the Respondents,
or of Respondents' choice of themselves to do the removal action.
If EPA disapproves of a selected contractor or Respondent,
Respondents shall retain a different contractor or notify EPA that
they will perform the removal action themselves within (3) days
following EPA's disapproval and shall notify'EPA of that
contractor's name or. Respondents' names and qualifications within
(3) days of EPA's disapproval.
Within seven (7) days after the effective date of this Order, the
Respondents shall designate a Project Coordinator who shall be
responsible for administration of all the Respondents' actions
required by the Order. Respondents shall submit the designated
coordinator's name, address, telephone number, and qualifications
to EPA. To the greatest extent possible, the Project Coordinator
shall be present on site or readily available during site work.
EPA retains the right to disapprove of any Projeict Coordinator
named by the Respondents. If EPA disapproves of a selected
- 4 -
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Project Coordinator, Respondents shall retain a different Project
Coordinator and shall notify EPA of that person's name and
qualifications within two (2) days following EPA's disapproval.
Receipt by Respondents' Project Coordinator of any notice or
communication from EPA relating to this Order shall constitute
receipt by all Respondents.
The EPA has designated Gail Scogin of the Emergency Response and
Removal Branch as its On-Scene Coordinator (OSC). Respondents
shall direct all submissions required by this Order via certified
mail to the OSC at 345 Courtland Street, N.E., Atlanta, Georgia
30365.
3. Work to Be Performed
Respondents shall perform, at a minimum, the following response
activities. Respondents ishall arrange for the removal of waste
materials stored in on-site tanks and drums, as described below,
to reduce or eliminate the .possibility of releases from those
tanks and drums in a manner satisfactory to EPA. Specifically,
Respondents agree to perform the following actions at the Site:
Remove all pumpable liquids from tanks and drums on-site.
Liquids removed from the tanks will be either:
(i) temporarily placed in tanks on the site in a manner
satisfactory to EPA or temporarily placed in additional
tanks until disposal can be arranged,
(ii) disposed of off-site in a manner satisfactory to EPA, or
(iii) some combination of (i) and (ii).
3.1 Work Plan and Implementation
Within ten (10) days after the effective date of this Order, the
Respondents shall submit to EPA for approval a draft Work Plan for
performing the first phase of the removal action as set forth
above. The draft Work Plan shall provide a description of, and an
expeditious schedule for, the action required by this Order.
EPA may approve, disapprove, require revisions to, or modify the
draft Work Plan consistent with the requirements of this Order and
the scope of work described in Section 2.0 of this Order. If EPA
requires revisions, Respondents shall submit a revised draft Work
Plan within five (5) days of receipt of EPA's notification of the
required revisions. Respondents shall implement the Work Plan as
finally approved in writing by EPA in accordance with the schedule
approved by EPA. Once approved, or approved with modifications,
the Work Plan, the schedule, and any subsequent modifications
shall be fully enforceable under this Order. Respondents shall
notify EPA at least 48 hours prior to performing any on-site work
pursuant to the EPA-approved Work Plan. Respondents shall not
commence or undertake any removal action on the site without prior
EPA approval.
- 5 -
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3.2 Health and Safety Plan
Within ten (10) days after the effective d^te of this Order, the
Respondents shall submit for EPA review and .comment a plan that
ensures the protection of the public health and safety during
performance of on-site work under this Order. This plan shall be
prepared in accordance with EPA's Standard Operating Safety Guide,
(November 1984, updated July 1988). In addition, the plan shall
comply with all current applicable Occupational Safety and Health
Administration (OSHA) regulations, Hazardous Waste Operations and
Emergency Response, found at 29 CFR Part 1910. Respondents shall
incorporate all changes to the plan recommended by EPA, and
implement the plan during the pendency of the removal action.
3.3 Quality Assurance a™* fiampl ing
All sampling and analyses performed pursuant to this Order shall
conform to EPA direction, approval, and guidance regarding
sampling, quality assurance/quality control (QA/QC), data
validation, and chain of custody procedures. Respondents shall
ensure that the laboratory used to perform the analyses
participates in a QA/QC program that complies with the appropriate
EPA? guidance. Respondents -shall follow the following documents as
appropriate as guidance for QA/QC and sampling: "Quality
Assurance/Quality Control Guidance for Removal Activities:
Sampling QA/QC Plan and Data Validation Procedures, " OSWER
Directive Number 9360.4-01; "Environmental Response Team Standard
Operating Procedures," OSWER Directive Numbers 9360.4-02 through
9360.4-08.
Upon request by EPA, Respondents shall have such laboratory
analyze samples submitted by EPA for quality-assurance monitoring.
Respondents shall provide to EPA the quality assurance/quality
control procedures followed by all sampling teams and laboratories
performing data collection and/or analysis.
Upon request by EPA, Respondents shall allow EPA or its authorized
representatives to take split and/or duplicate samples of any
samples collected by Respondents while performing actions under
this Order. Respondents shall notify EPA not less than (3) days
in advance of any sample collection activity. EPA shall have the
right to take any additional samples that it deems necessary.
3.4 Post-Removal Site Control
In accordance with the Work Plan schedule, or as otherwise
directed by EPA, Respondents shall submit a proposal for post-
removal Site control consistent with the requirements of this
Order and section 300.415 (k) of the NCP and OSWER Directive
93 60.2-02. Upon EPA approval, Respondents shall implement such
controls and shall provide EPA with documentation of all post-
removal Site control arrangements.
- 6 -
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3.5 Reporting
Respondents shall submit a written progress report to EPA
concerning actions undertaken: pursuant to 1:his Order every
thirtieth (30th) day after the date of receipt of EPA's approval
of the Work Plan until termination of this Order, unless otherwise
directed by the OSC. These reports shall describe all significant
developments during the preceding period, including the actions
performed and any problems encountered, analytical data recieived
during the reporting period, and the developments anticipated
during the next reporting period, including a schedule of work to
be performed, anticipated problems, and planned resolutions of
past or anticipated problems.
Any Respondent and Successor in title shall, at least thirty (30)
days prior to the conveyance of any interest in real property at
the site, give written notice of this Order to the transferee and
written notice to EPA and the Alabama Department of Environmental
Management of the proposed conveyance, including the name and
address of the transferee. The party conveying such an interest
shall require that the transferee comply with Section Four of this
Order - Access to Property and Information.
3.6 Final Report
Within thirty (30) days after completion of all removal actions
required under this Order, the Respondents shall submit for EPA
review and approval a final report summarizing the actions taken
to comply with this Order. The final report shall conform, at a
minimum, with the requirements set forth in Section 300.165 of the
NCP entitled "OSC Reports." The final report shall include a good
faith estimate of total costs or statement of Actual costs
incurred in complying with the Order, a listing of quantities and
types of materials removed, a discussion of removal and disposal
options considered for those materials, a listing of the ultimate
destinations of those materials, a presentation of the analytical
results of all sampling and analyses perfcprmed, and accompanying
appendices containing all relevant documentation generated during
the removal action (e.q., manifests. invoices, bills, contracts,
and permits). The final report shall also include the following
certification signed by a person who supervised or directed the
preparation of that report:
Under penalty of law, I certify that to the
best of my knowledge, after appropriate
inquiries of all relevant persons involved in
the preparation of the report, the information
submitted is true, accurate, and complete. I
am aware that there are significant penalties
for submitting false information, including
the possibility of fine and imprisonment for
knowing violations.
- 7 -
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4. Access to Property and Information
Respondents shall provide and/or obtain acqess to the Site and
off-site areas to which access is necessary to implement this
Order and provide access to all records and documentation related
to the conditions at the: Site and the action conducted pursuant to
this Order. Such access shall be provided to EPA employees,
contractors, agents, consultants, designees, representatives, and
State of Alabama representatives. These individuals shall be
permitted to move freely at the Site and appropriate off-site
areas in order to conduct actions which EPA determines to be
necessary. Respondents shall submit to EPA, upon receipt, the
results of all sampling or .tests and all other data generated by
Respondents or their contractors, or on the Respondents' behalf
during implementation of this Order.
Where action under this Order is to be performed in areas owned by
or in possession of someone other than Respondents, Respondents
shall use their best efforts to obtain all necessary access
agreements within ten (10) days after the effective date of this
Order, or as otherwise specified in writing by the OSG.
Respondents shall immediately notify EPA if after fusing their best
efforts they are unable to obtain such agreements. Respondents
shall describe in writing their efforts to obtain access. EPA may
then assist Respondents in gaining access, to the extent necessary
to effectuate the removal actions described herein, using such
means as EPA deems appropriate. EPA reserves the right to seek
reimbursement from Respondents for all costs and attorney's fees
incurred by the United States in obtaining access for Respondents.
5. Record Retention, Documentation, Availability of Information
Respondents shall preserve all documents and information relating
to work performed under this Order, or relating to the hazardous
substances found on or released from the Site, for ten years
following completion of the removal actions required by this
Order. At the end of this ten year period and thirty (30) days
before any document or information is destroyed. Respondents shall
notify EPA that such documents and information are available to
EPA for inspection, and upon request, shall provide the originals
or copies of such documents and information to EPA. In addition,
Respondents shall provide documents and information retained under
this section at any time before expiration of the ten year period
at the written request of EPA.
Respondents may assert a business confidentiality claim pursuant
to 40 C.F.R. § 2.203(b) with respect to part or all of any
information submitted to EPA pursuant to this Order, provided such
claim is allowed by section 104(e)(7) of CERCLA, 42 U.S.C. §
9604(e)(7). If no such claim accompanies the information when it
is received by EPA, EPA may make it available to the public
without further notice to Respondents.
- 8 -
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Respondents shall maintain a running log of privileged documents
on a document-by-document basis, containing the date, author(s),
addressee(s), subject, the privilege or grounds claimed (e.g.,
attorney work product, attorney-client), and the factual basis for
assertion of the privilege. Respondents shall keep the "privilege
log" on file and available for inspection. EPA may at any time
challenge claims of privilege.
6. Off-Site Shipments
All hazardous substances, pollutants or contaminants removed off-
site pursuant to this Order for treatment, storage, or disposal
shall be treated, stored, or disposed of at a facility in
compliance, as detenoined by. EPA, with 42 U.S.C^ § 9621(d)(3) and
the EPA "Revised Procedures for Implementing Off-Site Response
Actions," OSWER Directive•Number 9834.11, November 13, 1987.
Regional Offices will provide information on the acceptability of
a facility under section 121(d)(3) of CERCLA and the above
directive.
7. Compliance With Other Laws
Respondent shall perform all actions required pursuant to this
Order in accordance with all applicable local, state, and federal
laws and regulations except as provided in section 121(e) of
CERCLA and 40 C.F.R. § 300.415(i). In accordance with 40 C.F.R. §
300.415(i), all on-site actions required pursuant to this'Order
shall, to the extent practicable, as determined by EPA,
considering the exigencies of the situation, attain applicable or
relevant and appropriate requirements (ARARs) under federal
environmental, state environmental, or facility siting laws. (see
"The Superfund Removal Procedures for Consideration of ARARs
During Removal Actions," OSWER Directive No. 9360.3-02, August
1991).
8. Emergency Response and Notification of Releases
If any incident, or change in site conditions, during the actions
conducted pursuant to this Order causes or threatens to cause an
additional release of hazardous substances from the Site or an
endangerment to the public health, welfare, or the environment,
the Respondents shall immediately take all appropriate action.
The Respondents shall take these actions in accordance with all
applicable provisions of this Order, including, but not limited to
the Health and Safety Plan, in order to prevent, abate or minimize
such release or endangerment caused or threatened by the release.
Respondents shall also immediately notify the OSC or, in the event
of his/her unavailability, shall notify the Regional Duty Officer
of the incident or site conditions. If Respondents fail to take
action, then EPA may respond to the release or endangerment and
reserve the right to pursue cost recovery.
- 9 -
-------
In addition, in the event of any release of a hazardous substance,
Respondents shall immediately notify EPA's OSC (404-347-2641) and
the National Response'Center at telephone umber (800) 424-8802.
Respondents shall submit a written report to EPA within seven (7)
days after each release, setting forth the events that occurred
and the measures taken or to be taken to mitigate any release or
endangerment caused or threatened by the release and to prevent
the reoccurrence of such a release. This reporting requirement is
in addition to, not in lieu of, reporting under section 103(c) of
CERCLA and section 304 of the Emergency Planning and Community
Right-To-Know Act of 1986, 42 U.S.C. §§ 11001 et sea.
9. Efforts To Coordinate With Non-Parties To The Order
(A) To the extent that any other person or persons
(performing party(ies)) are performing or have stated an intent to
perform any requirement of this Order, as identified above,
pursuant to any other Order or agreement under Section 106 or 122
of CERCLA, 42 U.S.C. §§ 9606, 9622, Respondents shall make best
efforts to coordinate with the performing party(ies). Best
efforts to coordinate shall include, at a minimum:
(i) Communication in writing within five (5) days of
the effective date of this Order to any performing
party(ies) as to Respondents' desire to comply with
this Order and to participate in the performance of
the work or in lieu of performance to pay for the
performance of the work;
(ii) Submission within ten (10) days of the effective
date of this Order of a good-faith offer to perform
the work, in whole or in part, or in lieu of
performance to pay for the work, in whole or in
part; and
(iii)Engaging in good-faith negotiations with any
performing party(ies) to perform or in lieu of
performance to pay for the work required by this
Order if such performing party(ies) refuse(s)
Respondents' first offer.
(B) To the extent that any other person or persons
(performing party(ies)) are performing or have stated an intent to
perform any requirement of this Order, as identified above,
pursuant to any other Order or agreement under Section 106 or 122
of CERCLA, 42 U.S.C. §§ 9606, 9622, Respondents shall make best
efforts to participate in the performance of the work. Best
efforts to participate shall include, in addition to the
requirements set out in paragraph V(9)(A), at a minimum:
(i) Performance of the work as agreed by Respondents
and the performing party(ies) to be undertaken by
Respondents; and
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(ii) Payment of all amounts as agreed by Respondents and
the performing party (ies) to be paid by Respondents
if, in lieu of performance,.Respondents have
offered to pay. for the work required by- this Order,
in whole or in part.
(C) Respondents shall notify EPA in writing within three (3)
days of the rejection, if any, by any performing party(ies) of
Respondents' offer(s) to perform or, in lieu of performance, to
pay for the work.
(D) The undertaking or completion of any requirement of this
Order by any other person, with or without the participation of
Respondents, shall not relieve Respondents of their obligation to
perform each and every other requirement of this Order.
(E) Any failure to perform, in whole or in part, any
requirement of this Order by any other person with whom
Respondents are coordinating or participating in the performance
of such requirement shall not relieve Respondents of their
obligation to perform each and very requirement of this Order.
(F) On request of EPA and subject to any claims of
applicable privilege(s), Respondents shall submit to EPA all
documents in their possession, custody, or control relating to (i)
Respondents' offer(s) to any performing party(ies) to perform or
pay for, or (ii) Respondents' performance of or payment for, the
work required by this Order in conjunction with any performing
party(ies).
VI. AUTHORITY OF THE EPA ON-SCSNE COORDINATOR
The OSC shall be responsible for overseeing the proper and
complete implementation of this Order. The OSC shall have the
authority vested in an OSC by the NCP, 40 CFR § 300.120, including
the authority to halt, conduct, or direct any action required by
this Order, or to direct any other removal action undertaken by
EPA or Respondents at the Site. Absence of the OSC from the Site
shall not be cause for stoppage of work unless specifically
directed by the OSC.
EPA and Respondents shall have the right to change their
designated OSC or Project Coordinator. EPA shall notify the
Respondents, and Respondents shall notify EPA three (3) days
before such a change is made. Notification may initially be made
orally, but shall be followed promptly by written notice.
VII. ENFORCEMENT: PENALTIES FOR NONCOMPLIANCE
violation of any provision of this Order may subject Respondents
:o civil penalties of up to twenty-five thousand ($25,000) dollars
?er violation per day, as provided in section 106(b)(1) of CERCLA,
12 U.S.C. § 96 06(b)(1). Respondents may also be subject to
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punitive damages in an amount up to three, times the amount of any
cost incurred by the United States as a result of such violation,
as. provided in section 107 (c) (3) l'of CERCLA* 42 U.S.C. §
9607(c)(3). Should Respondents violate this Order or any portion
hereof, EPA may carry out the required actions unilaterally,
pursuant to section 104 of CERCLA, 42 U.S.C. § 9604, and/or may
seek judicial enforcement of this Order numnant to section 106 of
CERCLA, 42 U.S.C. § 9606.
VIII. RESERVATION OF RIGHTS
Except as specifically provided in this Order, nothing herein
shall limit the power and authority of EPA or the United States to
take, direct, or order all actions necessary to protect public
health, welfare, or the environment or to prevent, abate, or
minimize an actual or threatened release of hazardous substances,
pollutants or contaminants, or hazardous or solid waste on, at, or
from the Site. Further, nothing herein shall prevent EPA from
seeking legal or equitable relief to enforce the terms of this
Order, from talcing other legal or equitable action as it deems
appropriate and necessary, or from requiring the Respondents in
the future to perform additional activities pursuant to CERCLA or
any other applicable law. EPA reserves the right to bring an
action against Respondents under section 107 of CERCLA, 42 U.S.C.
§ 9607, for recovery of any response costs incurred by the United
States related to this Order or the Site and not reimbursed by
Respondents.
IX. OTHER CLAIMS
By issuance of this Order, the United States and EPA assume no
liability for injuries or damages to persons or property resulting
from any acts or omissions of Respondents. The United States or
EPA shall not be deemed a party to any contract entered into by
the Respondents or their directors, officers, employees, agents,
successors, representatives, assigns, contractors, or consultants
in carrying out actions pursuant to this Order.
This Order does not constitute a pre-authorization of funds under
section 111(a)(2) of CERCLA, 42 U.S.C. § 9611(a)(2).
Nothing in this Order shall constitute a satisfaction of or
release from any claim or cause of action against the Respondents
or any person not a party to this Order, for any liability such
person may have under CERCLA, other statutes, or the common law,
including but not limited to any claims of the United States for
costs, damages and interest under section 106(a) and 107(a) of
CERCLA, 42 U.S.C. §§ 9606(a) and 9607(a).
X. MODIFICATIONS
Modifications to any plan or schedule may be made in writing by
the OSC or at the OSC's oral direction. The rest of the Order, or
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any other portion of the Order may only be modified in writing by
signature of the Director, Waste Management Division, EPA, Region
IV.
If Respondents seek permission to deviate from any approved plan
or schedule. Respondents' Project Coordinator shall submit a
written request to EPA for approval outlining the proposed
modification and its basis.
No informal advice, guidance, suggestion, or comment by EPA
regarding reports, plans, specifications, schedules, or any other
writing submitted by the Respondents shall relieve the Respondents
of their obligations to obtain such formal approval as may be
required by this Order, and to comply with all requirements of
this Order unless it is formally modified.
XI. NOTICE OF COMPLETION
When EPA determines, after EPA's review of the Final Report, that
all removal actions have been fully performed in accordance with
this Order, with the exception of any continuing obligations
required by this Order, EPA will provide notice to the
Respondents. If EPA determines that any removal actions have not
been completed in accordance with this Order, EPA will notify the
Respondents, provide a list of the deficiencies, and require that
Respondents modify the Work Plan to correct such deficiencies.
The Respondents shall implement the modified and approved Work
Plan and shall submit a modified Final Report in accordance with
the EPA notice. Failure by Respondents to implement the approved
modified Work Plan shall be a violation of this Order.
XII. ACCESS TO ADMINISTRATIVE RECORD
The Administrative Record supporting these removal actions is
available for review at the offices of EPA, Region IV, 345
Courtland Street, N.E., Atlanta, Georgia 30365.
XIII. OPPORTUNITY TO CONFER
Within three (3) days after the effective date of this Order,
Respondents may request a conference with EPA. Any such
conference shall be.held within five (5) days after the effective
date unless extended by agreement of the parties. At any
conference held pursuant to the request, Respondents may appear in
person or be represented by an attorney or other representative.
If a conference is held, Respondents may present any information,
arguments or comments regarding this Order. Regardless of whether
a conference is held, Respondents may submit any information,
arguments or comments in writing to EPA within three (3) days
following the conference, or within three (3) days following the
effective date of the Order if no conference is requested. This
conference is not an evidentiary hearing, does not constitute a
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proceeding to challenge this- Order, and does not give Respondents
a right to seek review of this Order. Further, this conference
does not relieve Respondents of any obligation to comply with the
terms of this Order. Requests for a conference, or any written
submittal under this paragraph, shall be directed to Elizabeth B.
Davis, Assistant Regional Counsel, at (404) 347-2641, extension
2283, or 345 Courtland Street, N.E., Atlanta, Georgia 30365.
At least three (3) days prior to commencing any on-site work under
this Order, the Respondents shall secure, and shall maintain for
the duration of this Order, comprehensive general liability
insurancie and automobile insurance with limits of one million
($1,000,000.00) dollars, combined single limit. Within the same
time period/ the Respondents shall provide EPA with certificates
of such insurance and a copy of each insurance policy. If the
Respondents demonstrate by evidence satisfactory to EPA that any
contractor or subcontractor maintains insurance equivalent to that
described above, or insurance covering the same risks but in a
lesser amount > then the Respondents need provide only that portion
of the insurance described above which is not maintained by such
contractor or subcontractor.
If a court issues an order that invalidates any provision of this
Order or finds that Respondents have sufficient cause not to
comply with one or more provisions of this Order, Respondents
shall remain bound to comply with all provisions of this Order not
invalidated or determined to be subject to a sufficient cause
defense by the court's order.
This Order shall be effective three days after its execution by
the Director, Waste Management Division, EPA, Region IV.
IT IS SO ORDERED
XIV. INSURANCE
XV. SEVERABILITY
XVI. EFFECTIVE DATE
BY:
Joseph R. Franzmathes \ \ \V
Director, Waste Management Division^
Region IV
U.S. Environmental Protection Agency
EFFECTIVE DATE: 115 Q3
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FUELS AND CHEMICALS SITE
Coaling, Tuscaloosa County, Alabama
Unilateral Administrative Order
Docket No. 93-26-C*
Attachment A
Fuels and Chemicals, Inc.
C/0 Hike Wall, President
1612 James P. Rogers Circle
Azalea Industrial Park
Valdosta, Georgia 31601
Delta Sun Contracting, Inc.
C/O Glen Sum!in
P.O. Box 250
Saraland, Alabama 36571
Polyply, Inc.
C/0 Tom Soltysiak
1540 Marion Street
Grand Haven, Michigan 49417
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ADMINISTRATIVE DISCOVERY
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I
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•5* ?? BATTeR^
ENCLOSURE A
PAGE 5
QUESTIONS
1. Identify the person(s) answering these questions on behalf
of Respondent.
2. For each and every question below, identify all persons
consulted in the preparation of the answer.
3. For each and every question below, identify all documents
consulted, examined, or referred to in the preparation of the
answer and provide true and accurate copies of all such
documents.
4. State whether your company owns or has owned an interest in
each of the following companies or their predecessors, and
whether any of the following companies or their predecessors own
or have owned an interest in your company:
a. Exide Group
b. Inco, Ltd.
c. International Nickel
d. Canadian Nickel
e. Refined Metals
f. E.S.B.
5. For any interest or ownership describee! in response to
question 4 above, state the percentage of such ownership, and
identify all officers and directors the companies have or have
had in common.
6. Identify all checking accounts, savings accounts,
certificates of deposit, money market accounts, loans, letters
of credit, security agreements, and other financial accounts or
documents held or executed by your company in common with any of
the companies named in question 4 above at any financial
institution including, but not limited to, the First Union
National Bank of North Carolina and Branch Banking and Trust
Company.
7. For the years 1976 to 1981 inclusive, explain in detail the
exact nature of your company's business.
8. For the years 1976 to the present, explain in detail the
relationship between your company and Refined Metals. Include
answers to the following questions:
a. What was the type of property interest (e.g. real
property or other personal property including, but not
limited to machinery, equipment, and other assets) you
have held in Refined Metals? In particular, describe
your company'8 ownership and control of the property
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ENCLOSURE A
PAGE 6
located on and adjacent to 2640 Capitola Street,
Jacksonville, Florida and on and adjacent to 257 West
Mallory Street, Memphis, Tennessee.
b. When and from whom did your company acquire Refined
Metals?
c. What corporate officers and/or employees did your
company and Refined Metals have in common?
d. Did your company participate in exercising any control
over Refined Metals' business including, but not limited
to, participation in Refined Metals' Board of Directors,
policy matters, manufacturing, finances (e.g. pension
plans, other incentive compensation plans), and labor
negotiations? Explain your answer fully.
e. Did your company participate in exercising any control
over Refined Metals' day-to-day operating policies
including, but not limited to, sales, marketing,
advertising, the purchase of raw materials, research and
development, hiring and personnel practices, capital
expenditures, and environmental matters? Explain your
answer fully.
f. What was the relationship of the nature of your
business with that of Refined Metals? This question
includes, but is not limited to, the processes involved
in the manufacture of new batteries, reclamation of lead
from old batteries, and smeltering of lead for new
batteries.
g. Was their any review and approval by your company of any
decisions made by Refined Metals regarding any of the
subjects discussed in questions a - f above? Explain
your answer fully.
8. Provide names, addresses, and telephone numbers for other
individuals, including former employees and corporate officers,
who would be able to explain your company's relationship with
E.S.B., the Bxide Group, Inco, Ltd., Refined Metals,
International Nickel, and Canadian Nickel.
9. Provide copies of your company's annual reports from 1976 t
1990, inclusive.
10. Provide a copy of any and all Articles of Incorporation,
including amendments thereto, and all By-laws of your company.
11. Identify, and provide copies of, any local, state, or
federal permits or licenses that your company has obtained or
has applied for in order to use, store, generate, handle, or
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ENCLOSURE A
PAGE 7
transport hazardous substances at 2640 Capitola Street,
Jacksonville, Florida, and at 257 West Mailory Street, Memphis,
Tennessee.
12. For the years 1976 to 1981 inclusive, who had input into
environmental determinations associated with air, water, CERCLA
and RCRA matters concerning your company? This question
includes, but is not limited to, names of company officials and
employees.
13. For the years 1976 to 1981 inclusive, who had input into
environmental compliance determinations associated with air,
water, CERCLA and RCRA matters in regard to property located at
or adjacent to 2640 Capitola Street, Jacksonville, Florida, and
at or adjacent to 257 West Mallory Street, Memphis, Tennessee?
This question includes, but is not limited to, names of company
officials and employees.
14. Did your company submit any RCRA Closure Application for the
property at 2640 Capitola Street, Jacksonville, Florida? If so,
who prepared it? This question includes, but is not limited to,
names of company officials and employees.
15. Describe any liabilities your company has had arising from
or relating to the release or threatened release of hazardous
substances at 2640 Capitola Street, Jacksonville, Florida, and
at 257 West Mallory Street, Memphis, Tennessee.
16. Provide complete corporate income tax returns for the years
1976 to 1982 inclusive, including Form 851, Affiliation
Schedule, for each year, and provide your IRS Federal ID Number.
17. Provide, for the past three years, copies of your company's
federal and state income tax returns with attachments including
Form 851, Affiliation Schedule, as well as the company's balance
sheets or other document(s) for the same period identifying all
of the company's current assets and liabilities.
18. For the years 1965 to 1981 inclusive, explain in detail the
exact nature of your company's relationship with Jerry Sapp,
Sapp Battery Service, and any other business which generated or
transported batteries sent to the Sapp Battery Service.
19. Describe each and every contract, agreement, or other
arrangement for the sale, transportation, treatment and/or
disposal to the Sapp Battery Site by your company of batteries
and/or other lead containing materials. Specifically, you must
provide the frequency of disposal, state the volume of batteries
and/or lead containing materials disposed, and state the amount
of money you were paid for the material sent to the Site.
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ENCLOSURE A
PAGE 8
20. At any time, has your company transported used batteries
and/or other lead containing materials to the Sapp Battery
Site. Specifically, you must provide the frequency of trips to
the Site, the volume of batteries and/or lead containing
materials disposed, and the amount of money you were paid for
transportation of material sent to the Site.
21. Provide names, addresses and telephone numbers for any
individuals, including present and former officers and present
or former employees who may provide additional information in
answer to any of the questions above.
22. Produce any other documents, not already produced in
response to questions 1-21 above, which evidence the
relationship between your company and Refined Metals.
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J-Fp /c k^VUOjL
QUESTIONS
A. Questions reoardlna the relationship between JFD and nnimav
1. State when Unimax and/or JFD first acquired an ownership,
leasehold or operating interest in the Site.
2. Describe fully the transaction(s) through which Unimax and JFD
acquired their interests in the Site.
(a) identify all prior owners, lessors or operators of the
Site;
(b) describe in detail your understanding of the business
operations conducted at the Site prior to Unimax/JFD's
acquiring an interest, including the production facilities,
products made, and product names used;
(c) describe in detail the business operations conducted at
the Site following Unimax/JFD's acquisition of an interest,
including the production facilities, products made, and
product names used;
(d) identify any changes in personnel at the Site during the
period from six months before, to six months after,
Unimax/JFD's initial acquisition of an interest at the Site;
(e) attach copies of all documents relating to the
transactions) through which Unimax/JFD acquired an interest
in the Site.
3. Identify entities and individuals other than Unimax and JFD
that had an ownership interest in the Site during the period
of investigation, and specifically describe your understanding
of their ownership interest(s).
4. Attach copies of all documents relating to communications
between Unimax (including its officers and employees) and JFD
(including its officers and employees) relating to the Site.
5. JFD'b relationship with Unimax during the period of
investigation.
(a) identify all intercompany transactions between JFD and
Unimax;
(b) identify all common bank accounts of JFD and Unimax,
including combined checking, savings, payroll, escrow, or
trust/benefits accounts, lockbox arrangements or
zero-balance accounts;
(c) state whether Unimax has ever loaned money to JFD,
guaranteed or cosigned any loan to JFD, provided any line
of credit to JFD or otherwise obligated itself to JFD;
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(d) if your response to subparagraph 5(c) above is other than
an unqualified "no," describe the terms of each such loan
or obligation, state when the loan or obligation was
repaid, and attach copies of all relevant documents;
(e) state whether Unimax has ever guaranteed or assumed any
liability of JFD;
(f) if your response to subparagraph 5(e) above is other than
an unqualified "no," describe the terms of each such
guarantee or assumption, and attach copies of all
relevant documents;
(g) identify all dividends, payments or other transfers of
assets from JFD to Unimax, or vice-versa, and attach
copies of all relevant documents;
(h) identify all common officers, directors and employees of
JFD and Unimax during the period of investigation.
B. Questions regarding the relationship between Shepaua and JFD
6. Attach copies of all ddcuments relating to communications
between Shepaug (including its officers and employees) and JFD
(including its officers and employees) relating to the Site.
7. Shepaug's relationship with JFD during the period of
investigation.
(a) identify all intercompany transactions between JFD and
Shepaug;
(b) identify all common bank accounts of JFD and Shepaug,
including combined checking, savings, payroll, escrow, or
trust/benefits accounts, lockbox arrangements or
zero-balance accounts;
(c) state whether Shepaug has ever loaned money to JFD,
guaranteed or cosigned any loan to JFD, provided any line
of credit to JFD or otherwise obligated itself to JFD;
(d) if your response to subparagraph 7(c) above is other than
an unqualified "no," describe the terms of each such loan
or obligation, state when the loan or obligation was
repaid, and attach copies of all relevant documents;
(e) state whether Shepaug has ever guaranteed or assumed any
liability of JFD;
(f) if your response to subparagraph 7(e) above is other than
an unqualified "no," describe the terms of each such
guarantee or assumption, and attach copies of all
relevant documents;
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(g) identify all dividends, payments or other transfers of
assets from JFD to Shepaug, or vice-versa, and attach
copies of all relevant documents;
(h) identify all common officers, directors and employees of
JFD and Shepaug during the period of investigation.
C. Questions regarding the relationship between Shepaug and
8. Attach copies of all documents relating to communications
between Shepaug (including its officers and employees) and
Unimax (including its officers and employees) relating to the
Site.
9. Unimax' relationship with Shepaug during the period of
investigation.
(a) identify all intercompany transactions between Unimax and
Shepaug;
(b) identify all common bank accounts of Unimax and Shepaug,
including combined checking, savings, payroll, escrow, or
trust/benefits accounts, lockbox arrangements or
zero-balance accounts;
(c) state whether Shepaug has ever loaned money to Unimax,
guaranteed or cosigned any loan to Unimax, provided any
line of credit to Unimax or otherwise obligated itself to
Unimax;
(d) if your response to subparagraph 9(c), above, is other than an
unqualified "no," describe the terms of each such loan or
obligation, state when the loan or obligation was repaid, and attach
copies of all relevant documents;
(e) state whether Shepaug has ever guaranteed or assumed any liability
of Unimax;
(f) if your response to subparagraph 9(e), above, is other than an
unqualified "no," describe the terms of each such guarantee or
assumption, and attach copies of all relevant documents;
(g) identify all dividends, payments, or other transfers of assets from
Unimax to Shepaug, and attach copies of all relevant documents;
(h) identify all common officers, directors and employees of Unimax and
Shepaug during the period of investigation.
D. Questions regarding JFD
10. Identify the specific ownership interest (including leasehold interests)
of J7D in the Site at all times during the period of investigation.
11. Corporate history of JFD and its predecessors during the period of
invest igat ion.
(a) state the date of JFD's incorporation;
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(b) identify all officers and members of the board of directors of JFD;
(c) identify all shareholders of JFD;
(d) identify all transactions (i;e., mergers, asset or stock sales,
spin-offs, reorganizations, name changes, creation of subsidiaries
or divisions,, etc.) altering or modifying JFD'a corporate status;
(e) identify all entities and individuals owning or operating the Site
prior to JFD's acquisition of an interest;
(f) for each entity and individual identified in response to
subparagraph (e), above, provide the date of incorporation, identify
all officers, directors and shareholders, and Identify all
transactions altering or modifying the entity's status.
12. Identify the individuals or entities with the authority and responsibility
over the following activities of JFD during the period of investigations
(a) expenditures of $5,000 or greater;
(b) company-wide budgets;
(c) purchase and disposition of capital assets;
(d) pollution/waste control and disposal policies, activities and
expenditure s;
(e) raising of capital through issuance of debt or equity;
(f) salaries and payroll;
(g) selection, hiring/appointment, supervision, promotion, transfer or
discharge of employees and executives;
(h) payment of dividends;
(i) accounting for and payment of taxes.
13. Attach copies of balance sheets, income statements, auditors' reports and
any other documents reflecting JFD's financial condition during the
relevant time period.
D. Questions regarding Pnlmax
14. Identify the specific ownership interest (including leasehold interests)
of Unimax in the Site at all times during the period of investigation.
15. State whether directors, officers, agents or employees of Unimax ever
visited the Site. If so, identify all such persons and the date, duration
and purpose(s) of each visit.
16. Corporate history of Unimax during the period of investigation.
(a) state the date of incorporation of Unimax;
(b) identify all officers and members of the board of directors of
Unimax;
(c) identify all shareholders of Unimax;
(d) identify all transactions (i.e., mergers, asset or stock sales,
spin-offs, reorganizations, name changes, creation of subsidiaries
or divisions, etc.) altering or modifying Unimax, corporate status;
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(e) identify all corporate predecessors (including those listed in the
Definitions section) of Unimax;
(f) for each entity identified in response to subparagraph 23(e) above
provide the date of incorporation, identify all officers, directors
and shareholders, and identify all transactions altering or
modifying the entity's status.
17. Identify the individuals or entities with the authority and responsibility
over the following activities of Unimax>
(a) expenditures greater than $5,000;
(b) company-wide budgets;
(c) purchase and disposition of capital assets;
(d) pollution/waste control and disposal policies, activities and
expenditures;
(e) raising of capital through issuance of debt or equity;
(f) salaries and payroll;
(g) selection, hiring/appointment, supervision, promotion, transfer or
discharge of employees and executives;
(h) payment of dividends;
(i) accounting for and payment of taxes.
18. Attach copies of balance sheets, income statements, auditors' reports and
other documents reflecting the financial condition of Unimax during the
relevant time period.
E. Questions regarding Shepaug
19. Identify and attach copies of all documents in the possession of Shepaug
relating to the Site.
20. State whether directors, officers, agents or employees of Shepaug ever
visited the Site. If so, identify all such persons and the date, duration
and purpose(s) of each visit.
F. Questions regarding Shepaug. Unimax and JFD
21. List the Standard Industrial Classification (SIC) codes for Respondents'
businesses.
22. State the nature of the Respondents' businesses during the period of
investigation (as defined in the Definitions).
23. Describe all operations and activities conducted at the Site during the
period of investigation, including
(a) manufacturing, packaging, distribution, cleaning,, maintenance,
servicing, testing, analysis, administrative and other operations;
(b) number of employees; and
(c) raw materials, lubricants, cleaning materials, and all other
materials potentially containing hazardous substances used, stored
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or generated at the facility or operation, including, where
applicable, chemical names, trade names and material safety data
sheets.
24. Identify all wastes, whether solid or hazardous, that have been generated,
stored or treated at the Site during the period of investigation.
(a) provide actual or estimated amounts of each waste generated;
(b) state the disposition of each waste stream identified;
(c) attach copies of all documents relating to wastes generated at the
Site 'during the period of investigation, including but not limited
to manifests or other shipping papers, testing or analytical
results, product descriptions of items disposed of, disposal or
transportation agreements, and internal memoranda or other
documentation;
(d) if wastes were generated continuously as a result of process
operations, identify all times when such operations were interrupted
or discontinued.
25. Attach copies of all documents relating to waste disposal practices and
policies, spills or releases, and expenditures on pollution control
equipment or activities at the Site.
26. Identify, describe and attach copies of all agreements or arrangements
whereby officers or directors of JFD or Dnimax are or have been
compensated or indemnified in any maimer by Unimax or Shepaug.
27. Identify, describe and attach copies of all insurance policies that could
cover or be applied to environmental liabilities resulting from ownership
or operation of the Site.
28. Provide copies of your annual reports from date of Incorporation to the
present.
29. Provide any copy of any and all Articles of Incorporation and By-laws,
including amendments thereto.
30. Identify and provide copies of any local, state, or federal permits or
licenses that have been obtained or have been applied for in order to use,
store generate, handle, or transport hazardous substances at the Site.
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ENCLOSURE A
PAGE 5
QUESTIONS
1. Identify the peraon(s) answering these questions on behalf of
Respondent.
2. For each and every question below, identify all persons
consulted in the preparation of the answer.
3. For each and every question below, identify all documents
consulted, examined, or referred to in the preparation of the
answer and provide true and accurate copies of all such
documents.
4. State whether Shepaug owns or has owned an interest in each
of the following companies or their predecessors, and whether any
of the following companies or their predecessors own or have
owned an interest in Shepaugs
a. Unimax Holdings Corporation
b. The Unimax Corporation
c. JFD Electronic
5. For any interest or ownership described in response to
question 4 above, state the percentage of such ownership, and
identify all officers and directors the companies have or have
had in common.
6. Identify all checking accounts, savings accounts,
certificates of deposit, money market accounts, loans, letters of
credit, security agreements, and other financial accounts or
documents held or executed by Shepaug, Unimax and /or JFD in
common with any of the companies named in question 4 above.
7. For the years 1960 to the present, explain in detail the
relationship between Shepaug and Unimax. Include answers to the
following questions*
a. What type of property interest (e.g. real property or
other personal property including, but not limited to
machinery, equipment, and other assets) does Shepaug have or
had in relation to Unimax? In particular, describe Shepaug's
ownership and control of the Site.
b. When and from whom did Shepaug acquire Unimax?
c. What corporate officers and/or employees did your
company and Refined Metals have in common?
d. Did your company participate in exercising any control
over Refined Metals' business including, but not limited
to, participation in Refined Metals' Board of Directors,
-------
policy matters, manufacturing, finances (e.g. pension
plans, other Incentive compensation plans), and labor
negotiations? Explain your answer fully.
e. Did your company participate in exercising any control
over Refined Metals' day-to-day operating policies
including, but not limited to, sales, marketing,
advertising, the purchase of raw materials, research and
development, hiring and personnel practices, capital
expenditures, and environmental matters? Explain your
answer fully.
f. What was the relationship of the nature of your
business with that of Refined Metals? This question
includes, but is not limited to, the processes involved
in the manufacture of new batteries, reclamation of lead from
old batteries, and smeltering of lead for new batteries.
g. Was there any review and approval by your company of any
decisions made by Refined Metals regarding any of the
subjects discussed in questions a - f above? Explain
your answer fully.
8. Provide names, addresses, and telephone numbers for other
individuals, including former employees and corporate officers,
who would be able to explain your company's relationship with
E.S.B., the Exide Group, Exide Corporation, Refined Metals,
International Nickel, and Canadian Nickel.
9. Provide copies of your company's annual reports from 1976 to
1990, inclusive.
10. Provide a copy of any and all Articles of Incorporation,
including amendments thereto, and all By-laws of your company.
11. Identify, and provide copies of, any local, state, or federal
permits or licenses that your company has obtained or has applied
for in order to use, store, generate, handle, or ENCLOSURE A
PAGE 7
transport hazardous substances at 2640 Capitola Street,
Jacksonville, Florida, and at 257 West Mallory Street, Memphis,
Tennessee.
12. For the years 1976 to 1981 inclusive, who had input into
environmental determinations associated with air, water, CERCLA
and RCRA matters concerning your company? This question
includes, but is not limited to, names of company officials and
employees.
13. For the years 1976 to 1981 inclusive, who had Input into
environmental compliance determinations associated with air,
water, CERCLA and RCRA matters in regard to property located at
or adjacent to 2640 Capitola Street, Jacksonville, Florida, and
-------
at or adjacent to 257 We6t M&llory Street, Memphis, Tennessee?
This question includes, but is not limited to, names o£ company
officials and employees.
14. Did your company submit any RCRA Closure Application for the
property at 2640 Capitola Street, Jacksonville, Florida? If so,
who prepared it? This question includes, but is not limited to,
names of company officials and employees.
15. Describe any liabilities your company has had arising from or
relating to the release or threatened release of hazardous
substances at 2640 Capitola Street, Jacksonville, Florida, and at
257 West Mailory Street, Memphis, Tennessee.
16. Provide complete corporate income tax returns for the years
1976 to 1982 inclusive, including Form 851, Affiliation Schedule,
for each year, and provide your IRS Federal ID Number.
17. Provide, for the past three years, copies of your company's
federal and state income tax returns with attachments including
Form 851, Affiliation Schedule, as well as the company's balance
sheets or other document(s) for the same period identifying all
of the company's current assets and liabilities.
18. For the years 1965 to 1981 inclusive, explain in detail the
exact nature of your company's relationship with Jerry Sapp,
Sapp Battery Service, and any other business which generated or
transported batteries sent to the Sapp Battery Service.
19. Describe each and every contract, agreement, or other
arrangement for the sale, transportation, treatment and/or
disposal to the Sapp Battery Site by your company of batteries
and/or other lead containing materials. Specifically, you must
provide the frequency of disposal, state the volume of batteries
and/or lead containing materials disposed, and state the amount
of money you were paid for the material sent to the Site.
ENCLOSURE A
PAGE 8
20. At any time, has your company transported used batteries
and/or other lead containing materials to the Sapp Battery Site.
Specifically, you must provide the frequency of trips to the
Site, the volume of batteries and/or lead containing materials
disposed, and the amount of money you were paid for
transportation of material sent to the Site.
21. Provide names, addresses and telephone numbers for any
individuals, including present and former officers and present or
former employees who may provide additional information in answer
to any of the questions above.
22. Produce any other documents, not already produced in response
to questions 1-21 above, which evidence the relationship
-------
between your company and Refined Metals.
-------
J
-------
CERCLA § 122 SUBPOENA
-------
Cardinal
-------
tJ.S. Department of Justice
United States Marshals Service
PROCESS RECEIPT AND RETURN
See Instructions for "Service of Process by the U.S. Marshal"
on the reverse of this form.
JNTTFF
COURT CASE NUMBER
DEFENDANT
TYPE OF PROCESS
Subpoena Ad Testificandum
NAME OF INDIVIDUAL. COMPANY. CORPORATION. ETC.. TO SERVE OR DESCRIPTION OF PROPERTY TO SEIZE OR CONDEMN
James Faison employee of Hevi Duty Electric
• ADDRESS (Street or RFD, Apartment No., City, State and ZIP Code)
U.S. Highway 117 South, Goldsboro, NC 27530
SEND NOTICE OF SERVICE COPY TO REQUESTER AT NAME AND ADDRESS BELOW:
1
—I Number of process to be
1
1 Carlton Waterhouse
U.S. Environmental Protection Agency
Region IV
345 Courtland Street
1 served with this Form - 285
¦ Number of parties to be
1 served in this case
4
jAtlanta, GA 30365
' Check for service
J on U.S.A.
SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE (Include Business and Alb
"telephone Numbers, and Estimated Times Available For Service): ^
Ml
'e Addresses, All
r'lFoW
6ee-a£feeehed-aheefes
Available above 9:00 a.m. - 5:00 p.m.
(919)734-8900 (W)
c:>
—~j
i
o
• •
: i
oigi^tdVe of Attorney or other jDrigiaator-feqiiesi
I [y
-------
{&)
fA.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
345 COURTLAND STREET. NJ*.
ATLANTA. GEORGIA 30365
4RC
James Faison
Hevi Duty Electric
U.S. Highway 117 South
Goldsborro, NC 27530
Re: Hevi Duty Electric Site, Goldsborro, North Carolina
Dear Mr. Faison:
Enclosed is a subpoena for your sworn testimony regarding the
operation of Hevi Duty Electric in Goldsborro, North Carolina.
This subpoena requires you to be present at 9:00 a.m. on
August 28, 1992, at the United States Attorney's Offices located
at 310 New Bern Avenue, on the 8th floor in the Main Conference
Room to testify under oath regarding the above-named site. The
information sought relates to the storage, handling and disposal
of oil used at the Site.
If you desire you may have counsel present while giving your
testimony.
Please contact me at (404)347-2641 ext. 2276 if you have any
questions concerning this matter.
Sincerely yours,
Carlton waternouse
Assistant Regional Counsel
Enclosures
C".
c;
Printed on Recycled Paper
-------
BEFORE THE UNITED STATES ENVIRONMENTAL? PROTECTION AGENCY
REGION IV
345 COURTLAND STEET, NE
ATLANTA, GA
IN* THE MATTER OF:
JAMES FAISON
Hevi Duty Electric
U.S. Highway 117 South
Goldsboro, NC 27530
ADMINISTRATIVE FILE
NO. 92-02-S
SUBPOENA AD TESTIFICANDUM
To: MR. JAMES FAISON, RESPONDENT:
Pursuant to the authority of Section 122(e)(3)(B) of the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980 ("CERCLA"), as amended, 42 U.S.C. Section
9622(e)(3)(B), the United States Environmental Protection Agency
(U.S. EPA) is issuing this subpoena for the the purpose of
determining liability and otherwise implementing section 122 of
CERCLA by collecting information relating to the Hevi Duty
Electric Site.
YOU ARE HEREBY COMMANDED TO APPEAR IN PERSON at the following
place and time:
DATE AND TIME: Akust 28, 1992, at 9:00 a.m.
LOCATION: U.s). Attorney's Office
Main Conference Room
8th Floor
310 New Bern Ave.
Raliegh, NC 27611
At the above time and place, the U.S. EPA will take the statement
of Clarence Whitley regarding hazardous substances at the Hevi
Duty Electric Superfund Site, upon oral examination before a
court reporter or other officer authorized by law to take sworn
statements.
YOU ARE COMMANDED FURTHER TO TESTIFY THEN AND THERE UNDER OATH,
AND GIVE ORAL AND TRUTHFUL ANSWERS to all lawful inquiries and
questions asked by the U-S. EPA regarding the Hevy Duty Electric
Site, U.S. Highway 117 South, Goldsboro, North Carolina then and
there put to you on feehaif of the U.S. EPA. YOU ARE FURTHER
COMMANDED TO REMAIN IN ATTENDANCE until expressly excused by the
attorney(s) conducting the proceeding for the EPA.
-------
You are entitled to claim confidentiality over the information
provided to U.S. EPA, in accordance with 40t»CFR Part 2.
FAILURE TO COMPLY WITH THIS SUBPOENA MAY SUBJECT YOU TO A CIVIL
ENFORCEMENT ACTION IN UNITED STATES DISTRICT COURT.
Issued at Atlanta, Georgia, this /Jl day of , 1992.
EPA Attorney Contact:
Carlton Waterhouse
Assistant Regional Counsel
Office of Regional Counsel
U. S. Environmental Protection Agency
345 Courtland Street, NE
Atlanta, Georgia 30365
404/347-2641, ext. 2276
Joseph R. Franzmatpps
Director
Waste Management Division
U. S. Environmental
Protection Agency
-------
AFFIDAVIT OF SERVICE
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
that being a person over 18 years of age, I
the attached subpoena:
( ) in person
( ) by registered mail
( ) by leaving the copy at the principal
place of business, which is
Hevi Duty Electric
U.S. Highway 117 South
Goldsboro, North Carolina 27530
( ) by other method:
on James Faison, the person named in the subpoena on
, 1992.
Signature of Server
Name of Server
I hereby certify
served a copy of
(check one)
Title
-------
U.S. Department of Justice
United States Marshals Service
PROCESS RECEIPT AND RETURN
See Instructions for "Service of Process by the U.S. Marshal"
on the reverse of this form.
UNTIFF
COURT CASE NUMBER
DEFENDANT
TYPE OF PROCESS
Subpoena Ad Testificandum
SERVE
AT
NAME OF INDIVIDUAL, COMPANY. CORPORATION. ETC., TO SERVE OR DESCRIPTION OF PROPERTY TO SEIZE OR CONDEMN
Pelma Faison employee of Hevi Duty Electric ¦
ADDRESS (Street or RFD, Apartment No.. City, State and-ZIP Code)
U.S. Highway 117 South, Goldsboro, NC 27530
SEJTO_NOTICE_OF^ SEWI^COPY_TO J^UESTCRAT NAME AND^DI^ESS_BELOW:_
Carlton Waterhouse
U.S Environmental Protection Agency
Region IV
¦ 345 Courtland Street
I Atlanta, GA 30365
Number of process to be
served with this Form - 285
Number of patties to be
served in this case
Check for service
on U.S.A.
SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE (Include Business and Alternate Addresses. All
"telephone Numbers, and Estimated Times Available For Service):
Fold . CO r
¦6ee-«'€*aehed-ehee€e - no
Available above 9:00 a.m. - 5:00 p.m.
(919)734-8900 (W)
"J"
CT2
Originator requesting service on behalf of:
a.
~ PLAINTIFF
~ DEFENDANT
TELEPHONE NUMBER
(404)347-2641x2276
P^ATE '
fi/7/92
£t: LCj
SPACE BELOW FOR USE OF US. MARSHAL ONLY — DO NOT WRITE BELOW THIS LINE
1 acknowledge receipt for the total
Total Process
District
District
Signature of Authorized USMS Deputy or Clerk
Date
number of process indicated.
of Origin
to Serve
C\
(Sign only first USM 285 if more
than one USM 285 is submitted)
1
N„ 19
No 56
./v.
8/17/92
I hereby certify and return that I ~ have personally served, ~ have legal evidence of service, ~ have executed as shown in "Remarks", the process described
on the individual, company, corporation, etc., at the address shown above or on the individual, company, corporation, etc., shown at (he address inserted below.
I I I hereby certify and return that I am unable to locate the individual, company, corporation, etc., named above (See remarks below)
Name and title of individual served (if not shown above)
A person of suitable age and dis-
l~~l crction then residing in the defendant's
usual place of abode.
Address (complete only if different than shown above)
Date of Service
Time am
pm
Signature of U.S. Marshal or Deputy
Service Fee
Total Mileage Charges
(including endeavors)
Forwarding Fee
Total Charges
Advance Deposits
Amount owed »o U.S. Marshal or Amount of Refund
MARKS: 8/17/92: SDUSM HOLMAN FOR ASSIGNMENT
PRIOR EDITIONS
MAY RF IISF.n
1. CLERK OF THE COURT
FORM USM-285 (Rev. 12/15/80)
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
345 COURTLAND STREET. N.E*
ATLANTA. GEORGIA 30365
TO ^ 1 ^
4RC
Pelma Faison
Hevi Duty Electric
U.S. Highway 117 South
Goldsborro, NC 27530
Re: Hevi Duty Electric Site, Goldsborro, North Carolina
Dear Mr. Faison:
Enclosed is a subpoena for your sworn testimony regarding the
operation of Hevi Duty Electric in Goldsborro, North Carolina.
This subpoena requires you to be present at 1:00 p.m. on
August 28, 1992, at the United States Attorney's Offices located
at 310 New Bern Avenue, on the 8th floor in the Main Conference
Room to testify under oath regarding the above-named site. The
information sought relates to the storage, handling and disposal
of oil used at the Site.
If you desire you may have counsel present while giving your
testimony.
Please contact me at (404)347-2641 ext. 2276 if you have any
questions concerning this matter.
S'
Carlton Waterhouse
Assistant Regional Counsel
Enclosures
Printed on Recyc:ez Pap
-------
BEFORE THE UNITED STATES ENVIRONMENTAL.PROTECTION AGENCY
REGION IV
345 COURTLAND STEET, NE
ATLANTA/ GA
IN THE MATTER OF:
PELMA FAISON
Hevi Duty Electric
U.S. Highway 117 South
Goldsboro, NC 27530
ADMINISTRATIVE FILE
NO. 92-02-S
SUBPOENA AD TESTIFICANDUM
To: MR. PELMA FAISON, RESPONDENT:
Pursuant to the authority of Section 122(e)(3)(B) of the
Comprehensive Environmental Response, Compensation and Liability
Acf of 1980 ("CERCLA"), as amended, 42 U.S.C. Section
9622(e)(3)(B), the United States Environmental Protection Agency
(U.S. EPA) is issuing this subpoena for the the purpose of
determining liability and otherwise implementing section 122 of
CERCLA by collecting information relating to the Hevi Duty
Electric Site.
YOU ARE HEREBY COMMANDED TO APPEAR IN PERSON at the following
place and time:
DATE AND TIME: August 28, 1992, at 1:00 a.m.
LOCATION: U.S. -Attorney's Office
Main Conference Room
8th Floor
310 New Bern Ave.
Raliegh, NC 27611
At the above time and place, the U.S. EPA will take the statement
of Clarence Whitley regarding hazardous substances at the Hevi
Duty Electric Superfund Site, upon oral examination before a
court reporter or other officer authorized by law to take sworn
statements.
ifOU ARE COMMANDED FURTHER TO TESTIFY THEN AND THERE UNDER OATH,
MJD GIVE ORAL AND TRUTHFUL ANSWERS to all lawful inquiries and
questions asked by the U.S. EPA regarding the Hevy Duty Electric
3ite, U.S. Highway 117 South, Goldsboro, North Carolina then and
there put to you on behalf of the U.S. EPA. YOU ARE FURTHER
COMMANDED TO REMAIN IN ATTENDANCE until expressly excused by the
attorney(s) conducting the proceeding for the EPA.
-------
You are entitled to claim confidentiality over the information
provided to U.S. EPA, in accordance with 4Q CFR Part 2.
FAILURE TO COMPLY WITH THIS SUBPOENA MAY SUBJECT YOU TO A CIVIL
ENFORCEMENT ACTION IN UNITED STATES DISTRICT COURT.
Issued at Atlanta, Georgia, this day of , 1992.
EPA Attorney Contact:
Carlton Waterhouse
Assistant Regional Counsel
Office of Regional Counsel
U. S. Environmental Protection Agency
345 Courtland Street, NE.
Atlanta, Georgia 30365
404/347-2641, ext. 2276
a
rranzmath^s T
ph R. Franzmath^
ctor
Wa^te Management Division
U. S. Environmental
Protection Agency
-------
AFFIDAVIT OF SERVICE
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I hereby certify that being a person over 18 years of age, I
served a copy of the attached subpoena:
(check one) ( ) in person
( ) by registered mail
( ) by leaving the copy at the principal
place of business, which is
Hevi Duty Electric
U.S. Highway 117 South
Goldsboro, North Carolina 27530
( ) by other method:
on Pelma Faison, the person named in the subpoena on
¦ , 1992.
Signature of Server
Name of Server
Title
-------
<,tt> sr«.
w
'«< PRO*0
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
345 COURTLAND STREET. N.E.
ATLANTA. GEORGIA 30365
4RC
MEMORANDUM
DATE: APR 0 9 1050
SUBJECT?
FROM:
Administrative Subpoena for Testimony of Witnessed
Regarding TrI-City Industrial Disposal Site, Bullitt
County, Kentucky
Brooke.F. Dickerson
Assistant Regional Counsel
TO: John. Fogarty
Office .of Enforcement and Compliance Monitoring
The United States Environmental Protection Agency ("EPA"),
Region IV . (the. "Region") proposes to issue.ah. administrative
subpoena tb obtain sworn testimony from four witnesses in
furtherance of cbst recovery settlement negotiations for the
Tri-City Industrial Disposal Site, Bullitt County, Kentucky
(the "Site"). This memorandum sets forth the basis for such
proposal.
A'. Background Statement
EPA has incurred over ^>t>uu,uuu tor a'Section'104
emergency removal action commenced on May 25, 1988 in response
to the release and threatened release of hazardous substances at
the Site, and will incur additional expenses in the future for
remedial activities. The case has been referred to the
Assistant Attorney General, U.S. Department of Justice ("DOJ")
to file a civil action for recovery of said removal costs
pursuant to Section 107. DOJ has not yet filed a complaint
because they would like to first develop additional evidence
against two of the PRPs, Kletter and Ford (as defined below).
In the meantime, the Region is currently participating
in settlement negotiations with (1) Waste Management of
Kentucky, Inc. ("Waste Management"), (2) Mr. Harry Kletter
("Kletter") and (3)... Ford Motor Company, Inc.. ("Ford") for
reimbursement of said removal costs. Waste Management and
Kletter are PRP's as owner/operators and as transporters; Ford
is a PRP as a generator. Earl Pruitt, Martin Saper and James
Alton Froman were employees of Waste Management and Kletter and
Barney Murrow was an employee of Ford.
Printed on Recycled Paper
-------
B. Statutory Authorization
Section 122(e)(3)(B) authorizes the issuance of an
administrative subpoena for the attendance and testimony of
witnesses and the production of reports, papers, documents,
answers to question#- and other information in order to "collect
information necessary or appropriate for -. . . implementing this
section." Section 122(h)(1) authorizes the settlement of a
Section 107 claim for costs.
The Region proposes to use an administrative subpoena to
ensure that Earl Pruitt, Martin Saper, James Froman and Barney
Murrow are available to give testimony which would (a) clarify
existing evidence and (b) provide additional infprmation
regarding, amongother things, the extent of Kletter's
involvement in daily activities at the Site and the types of
waste which were sent by Ford to the Site. EPA intends to use
suc)i testimony to implement the. provisions of Section 122(h) - in
negotiations of a cost recovery settlement with Waste
Management, Kletter and Ford. Such testimony would also be
helpful to DOJ in preparing the complaint against.Kletter and
Ford, if necessaify. In addition, as such testimony would be
under oath > the testimony would be available to impeach the
witnesses in the event the witnesses are subjected to pressure
from one or more of the defendants and therefore are tempted to
alter their testimony, should a complaint be filed.
C. Procedural Requirements
The guidance dated August 25, 1988 entitled "Guidance on
Use and Enforcement of CERCLA Information Requests and
Administrative Subpoenas" (the "Guidance") suggests that a
Section 104(e) information request should precede a subpoena,
but also states that there is no statutory requirement to do
so. A Section 104(e) information request was delivered to
Martin Saper on August 18, 1989 but not to the other witnesses.
Although it might be preferable to send Section 104(e)
information requests to all witnesses, information requests are
not a viable option in this case because of very limited time
constraints. As the case was referred to DOJ on September 29,
1989, DOJ would like to either settle the claim or file a
complaint by May 1, 1990. Therefore, it is imperative that all
additional evidence be developed as soon as possible.
Additionally, the Guidance states that personal service of
the subpoena is preferable. The Region proposes to ask the U.S.
Marshal to personally serve subpoenas on each witness. Service
may also be achieved by registered or certified mail if personal
service is not available.
-------
- 3 -
Delegation 14-6 requires the issuer of an administrative
subpoena to consult with the Assistant Administrator for
Enforcement and Compliance Monitoring or his/her designee.
The purpose of this memorandum is to commence such consultation;
the Region hereby requests any comments or questions whicht the
Assistant Administrator or said designee may have. Attached
hereto.is a*copy ota proposed subpoena for your review.
Finally, the Guidance sets forth four parameters for the
scope .of an. administrative subpoena -within- which- the subpoena
proposed by the Region complies:
(1) The subpoena must be within the underlying,
statutory authority 6 f t he agency; the. agency has the
authority to investigate the source and nature of
hazardous substances whenever a hazardous substance is
released pursuant to Section 104(b)(1) of CERCIA-
(2)' The subpoena should be sufficiently
definite/specific; this subpoena shall only request
testimony regarding the disposal activities located at
the Site -from approximately 1964 through! 19.67.
(3) The subpoena should be reasonably relevant to the
agency's basic inquiry; the witnesses subject to the
proposed subpoena have first-hand knowledge about the
.disposal' activities o£ Waste.Management;, xletter -and.
Ford in. cohhect'ion with this Sitei
(4The request cannot be unduly burdensome; the Region
proposes to hold ail meetings with the witnesses in
Louisville, Kentucky where they are all located so as
not to inconvenience them.
In conclusion, the Region proposes to issue an
administrative subpoena to compel four witnesses to appear
for questioning regaining the disposal of hazardous
substances at the Tri-City Industrial Site. A subpoena for
this purpose complies with the requirements of Section
122(e)(3)(B). and of the Guidance. The Region invites
comment on this proposal.
Attachment
cc: Patrick M. Tobin, WMD
Paul Wolfteich, DOJ
Joan Sasine, HWLB
Phyllis Harris, HWLB
-------
iSSS
^c
UNITED STATES ENVIRONMENTAL PROTECTION AGE
REGION IV
345 COURTLANO STREET. N.E.
ATLANTA. GEORGIA 30365
4RC
MAY 0 7 I99ft
Mr. John Fogarty
Office of Enforcement
U.S. Environmental Protection
Agency
401 M Street, 5.W,
Washington>- DC 20460
Re: TriT-City Industrial Disposal :'SiteBrooks Hill
Kentucky/Administrative Subpoenas
Dear J6hn.v
r .am ienclo^ifig ; copies f our ' SiMirfistrafcive subpoenks. arid
the te.ansnu.ttal /letter'to the J^s'istant'.UiS.^'Atto^ne^ 'regarding
'-jfche':TrAr-&i?ty industries bispo^alSit^ for your'files.. . As you
can./see, we .have.' revised thp subpoenas consistent v?ith. your
.comments-' 'of' April 10th.'
'Thank vou', for y.our assistance.
^incoreiv.:
Brooke -Bv¦/Diekersoft
Assistant Regional Counsel
JEndrlosures
cc: . Joan.Gillespie,/. OE
Baul Wo 1 f t ei0h, BO'Jf .
Phyllis Harris,. OR6
John : WSteiher, WASTMD
Printed on Recycled Paper
-------
«i.o ST*,
¦S*
JiviTED STATES ENVIRONMENTAL PROTECTION AGENCY
*
- REGION IV
345 COURTLANQ STREET. N.E.
WF?LANTA;i^ORGlA*3TO&65.
4RC
Richard A. Hiennzs , -Esq.
Assistant United States Attorney
510 West Broadway, 10th Floor
Louisville, Kentucky 40202
Re: Tri-City Industrial T Disposal. Site', . Brooks., ...Keotuckv
Adtoiriistxative- Subpoena's
Defa'r.' Didfcs
Please find, enclosed' administrative;, subpoenas for Jaines
Fromaxi,. Martin Saper, E^l., Prjait;t an4 , Murrell There - is "an
af 1 ilday.i:tV::of-: servicer' attacThiedv €o: ^aqH .one. ' Thank.- yo^/fox*.--
/the otigiriail\'affidavirts after Heliverv-.
I also, appreciate your assistance in ..coordinating'.a-court :
•reporter: and' a ¦ room for- the ' interviews As 'we discussed/" I' will
interview two_ witnesses; .on • Wednesday.:, Kay ¦ wo . I'3 90 -beginni-ng at;
r"2-: 30 • P'.'M. . I v;ill. conduct. t.v.'O or., three interviews pft. 'ihur^d-av.
Jtojr: J. 7>;if;Ste$Q -friM
i; si
Pl'ease me Know i£ YQm...: «iave •. any.; questions -..
. Brobke tDickerson
Assistant Regional Counsel
Hazardous Waste Law Branch
Enclosure's
Printed on Recycled Paper
-------
BEFORE THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
345
IN THE MATTER OF:
TRI—CITY INDUSTRIAL DISPOSAL
SITE, :BRObKS:'«iLI; ROAD ""
BULLITT COUNTY, KENTUCKY
)
)
)
)
)
)
)
n
103«&
No. 90-01-S
SUBPOENA DUCES TECUM Ato3
SUBPOENA AD TESTIFICANDUM
TO;:/ ' MAFl'fl to" 'S AP ER
..YOU ARE-. JfclERE B Y States
TO • APPEAR:- IH "PERSON. '^t'- the^following::place :aftd -t jjrie^
TIME AND DATE:' 11:00- A.M. , Thursday:, May 11.,, 1990.:.
PLACE; > ,5.lbv. West - Broadway > • vL-frtlv t?!ke>o'ij
Lo\i isvi l le ,.'•K-3ntuc5;v ¦' -4 02 0a
y(Py, .AR^.. COMMAND£D. :itrRTHfik
•fe^iSs'ttial^tjispbs a:lvYSite,- .¦:>.
.;^ui\i^V»..
-------
-2-
NONCOMPlilAJNCE WITH THIS SUBPOENA MAY SUBJECT YOU TO A CIVIL
ENFORCEMENT ACTION.
Issued at. Atlanta, Georgia this . <4-^ "diav" of May, 1990.
Attorney Contact:
Brooke;v.-F-" Djjckerso.ti
Office- :6-£ 'Wegiori'a 1 Counsel, Region IV,.
Hazardous.Waste LawBranph,
Atlanta/
t ,.. .... ..
Director;*
piwisipij i'' epaReaidii,' iv .'"
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ATTACHMENT A
~£o&sei3siOii in connection' with, ..
regarding or in any way pertaining to the operation of Tri-City
Industrial Services, Inc. or the disposal of waste or hazardous
waste at the aforesaid Tri-City Industrial s'ite between 1964 and
1968, including but not limited to the following:
1. Any and"h-ll docuxHents pertaining to the operation of or
waste disposal at the Tri-City Industrial Services, Inc.
facility located on Grade Lane;
Any^^^dyailr'dbei^Sn'ts'^exitaining^¦-'tcr^^^he>Qpera.-&ion of;;-ari<±
waste disposal 'at; IchSiei. JTjrirCity*,si^6l-on./&c^qks/Hi.3-i";Roar oker s
z6xi^^^brs;^'s^E>^P^^cjb4Ki7^ - px i.empleveesij.
5 . .The" names and addresses .of-. all. employees, of Tri-City
rndus.fcriaX Services; 'The; durirtg the stated ti.ms" period;
^§QO££i&Otp£S
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AFFIDAVIT OF SERVICE
UNITED STATES ENVIRONMENTAL PROTECTION
I hereby certify that being a person over 18 years of age, I
served a 'copy of the attached .s,ub,p.oe.na
i'. in/per seta
':)• by registered main, . c ...
"pusAh&ss , .IWhich.J I.r'--
Mart. Sin'. t*aper-..
I4:;^^£din^r Court
Louisville,. Kentucky . 40205
j- by other; . :-ia tho:<3: ¦
Oil the'pearsph.. netted t>n • felie s,ubp0ena'"on.' . - ., . ... <
(date 1
' 1'. • •¦" . j ''
'^ignattiire "of
server
Tiame- of server ;
(check ondV (
(
c:
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BEFORE THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
IN THE MATTER OF: ) No. 90-01-S
TRI-CITY INDUSTRIAL. DISPOSAL j SUBPOENA DUCES TECUM ANp
SITE, BRO0K& • HILL R§AD ) SUBPOENA AD TESTIFICANDUM
BULLITT COUNTY, KENTUCKY )
TO: .• JAMESv A,. 'FROMAN.
'• S^'ctibiiir-1'22.{ fe')o('.3 j;t fi) 1
fO. APPEAR.. IN jP^^RSiON. at fcjig- :f o,l lowing- - place and -tiroe *
TIME AND DA^E :. .12.: 30 P-M; ,. .Wednesday.:, M^y .i5>: 1.9.90
.-.PLACE,: •'.'Slirttes't: Broadway/-l'Dth' Flo'or",
.. i.^r;KG.-i.t;;i;i:p:y .. 43202; • /-
Bro'olts ..ki^lVRoad-ir Biiliitt-.Couri^y^ .Seri't^Ky..^&n&.
r /itic.'.¦•'.betweeiV...;L?'6-4..
anil,; vl&i58>i;.tJ%en ;^ds :.thsre;-put- ;tp .^o£--V-fee.c t"ipi'n Agency,;and TO REMAIN IN-v
YOU ARE COMMANDED. FUTRTHER TO 3RING Wl£fl.;*OU* scpd.:
place-\s£ated. .above, ¦ ;an4; £he!n; and.' £hexe .produce; for inspection
and /or"'copying, those items. identif i'ed. an$ .described' in
Attachment. A ¦ hepreto..
EPA regulations governing conf identiality of .business .
i n f n yma f*. i jt\ n a*»o . a rns+-. ^VNY-f" V*. ..'j r» JD a>*f. .'O V' a r f- U'^'Af. '1*1"4'Q Q f'-
confidential: treatment, you may assert such a claim in
accordance with 4 0 C.FiR. Section. 2. £0.3 (b)
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-2-
NONCOMPLIANCE WITH THIS: SUBPOENA MAY SUBJECT YOU TO A CIVIL
ENFORCEMENT ACTION.
Issued .at Atlanta, Georgia this ..^ dav or May, 1990.
Attorney Contact:
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ATTACHMENT A
TStvfr';"your1 -posErefirs'Kbn iff' e&Yffi*ectian witn.;
regarding or in 'any way pertaining "to the operation of Tri-City
Industrial Services, Inc. or the disposal of waste or hazardous
waste at the aforesaid Tri-City Industrial site between 1964 and
1968,. including but not limited to the following:
1. Any and *-all doctanents pertaining to the operation of or
waste disposal at the Tri-City Industrial Services, Inc.
facility located on Grade Lane;
.-^rvy -'jwuivdaou^nt;p;r
wasteV disposal at 'the iri-Gity' site Hill Road?.
:3'. Any v and .ail viist^;.. cgstopecs^ £og; yfli/oia,,
'£&&&$&£ Vdtfi?indr>€h5e /s taft:ed ';t'iine"~ $e^ipay
^h'eth'ferV prev^Xpuislv;' Supplied to':-^ npt;;'
4 i Any and :all. .cpr^esptc>^
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AFFIDAVIT OF SERVICE
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I hereby certify that being a person over 18 years of age, I
.served a co.py.of the' attached subpoena:
(check oriel ( .) in".'person
( ) by registered .-rtiaxn-
(• J by leay^g. Me cp^yig^;l^e.vj^iixeipai pjcaqe ^f;
; >>mlch' i'sy
, Jgune's ¦ A"i uFrtwaaiJ
Brooks Hill ROaa
•Brooks, <-'Kentucky. 40' 10 9
¦ :>v• p'crrer- method:-.
On', the..person.'.namea on. the;.s-ubppena:. an. .. .....
(daitfe )' '
s^gn^i^iirre; 16£.
server'
name'6i: server
title
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BEFORE THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
345 COURTJ^ANP. STRE&T,. 2». E,
315^
IN THE MATTER OF: > No. 90-01-S
>
TRI-CITY INPUSTRIAL DISPOSAI > .SUBPOENA DUCES TECUM
SITE/' BROOKSvHILL ROAD' ) SUBPOENA Ad TESTIFICANDUM
BULLITT COUNTY, KENTUCKY }
)
TO : E ARL PRUIT.T
YOU. AlR£ . HEREBYeOM^DEP,tiaxsnant^.¦¦ ¦Spates
Resbons^,
TO • aP&'&Xr'in ^PEIsson at ;thfe ;^6^;.Hiii:r!Bt;o'Aii,,i-Bul^iti -.County,.":'.r^L^ted:
be'Jt^eeh'.vI964
and 1968 / ¦ then v.and'-there;.piit tbr^o.U;. qn.;..behait.-Ofc .tftfeWUnited, •'-
.Sta^eH-v&nv2;rqri!^h^a.l; 'i&trtec'txph. -A^e'rieyj- and TO REMAIN IN"
ATTENDANCE: until; express lyexcusedfby the att'prney.t s ) r conducting V
"'
YOU XEIE GOikK^NDEP FURTHER TO BRING WITH YOU, at. the time: ahd-
place-. 3tatpd .a)36V6i;..and .th&nf'and • there; prbduc.6 :£pr inspectibn
and/'oir- copyingy thbse "itettis ' identif ied''4nd: desb'irxbed in:
Attachment". A. -.. hereto.
EPA. regulations governing confidentiality of business-,
information are. set. fortl* in .Part. 2, Subpart B of Title .40 of
the . R^^ia.tipns;^ '¦: Fbr;
h •'& l£j^:i:£:'Qffi£izid&,%Q '
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-2-
NONCOMPLIANCE WITH THIS SUBPOENA MAY SUBJECT YOU TO A CIVIL
ENFORCEMENT ACTION.
.
Issued.at Atlanta; Georgia this 4- ~ day of May, 1990.
Attorney Contact:
Brooke. (F .. , Dickerson
Office of 'Segiori^i Counsel ,. Region IV>
Hazardous *Waste;.:Ij'aW- Braxic.ti
Street, ;N - E;.
•'vaiiraoB'
pit:ec'tbiV; ^4.s te Managenient
' ii'e^rbh^Tv..
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ATTACHMENT A
'In connection witn,
regarding or in any way pertaining to the operation of Tri-City
Industrial Services, Inc. or the disposal of waste or hazardous
waste at the aforesaid -Tri-City Industrial site between 1964 and
1968, including but not limited to the following:
1- Any- and^^l'i 'docj3«Bientis peirtaining to -the operation of or
waste disposal at the Tri-City Industrial Services,- Inc.
facility located on Grade Lane;
2... . Any.^.nd¦va.lli..docvme^t&.;p,eF^i^ingii^-<,the%j<^^i>^jLi3!VP' .of - and
wkst^'Vdi^oosai at the Tri-City site ori. Brooks'Hill'Roadi
J. Any ^nd 'all; '•I^lscs ;for -c.ustpn^s -.^r^noi^^
whethfeir ore\^'i'o'uslV; sufec>i^'edv tfr EPa' .or * not •¦;
4 . Any and - ^11 coirges.pQtndene^, cqptr4ct,s;# vi»^^^e5>45^upeAts:
yj; 'ine'v'VsrYfl^
any^i-naus'-irXai;' customedf >. ry^s£tg .^^^'^ac-tiofiJ^o1o=?£d,',-
is&rttxfa cto.ra; "~'sul)'cd"ittrat'ctorpor': einp 1 oyees -;
i>Tli^ -narties and addresses -of al.i employees pf Tri,-C'ity;
Industrial- Services Ijqc^.:..:. .-.during .the stated' time .perio'd^ and
¦:¦' Tn'^ :r'- «5v;s^sse5 ;orai'i. ..contractors ¦ or. :siii3to'rit:r actors,,
wno . per f ormed . any^ sejg.^ioes ;¦rjel^tigg ..-lift -the
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AFFIDAVIT OF SERVICE
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I hereby certify that being a person over 18 years of age, I
served a copy of the attached subpoena:
(chjeck""pnej-. ( ) in person
( •) by" registered; main
.( )
) by Reaving the copy at the" principal
busiJiQS&v'.wHxch^i'S
Erari; prtiitt-
3.84'0- -Sotrfchern'^Parlcwari?:
Louisville, Kentucky' 40214
¦Ortr.tne person naiaea Qn .xne. j^uppoesna on.../
(dat$)
•. j VT*W
server
ierbui'&: of :.
name of gerver.
title
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BEFORE THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
345 COURTLAND STREET, N,E.
ATIANTAy GEORGIA 3036 S"
IN THE MATTER OF: ) No. 90-01-S
)
TRI-CITY INDUSTRIAL DISPOSAL. ) SUBPOENA DUCES TECUM AND
SITE/ BRCtoKS^HILL R£AD ) SUBPOENA AD TESTIFICANDUM
BULLITT COUNTY, KENTUCKY )
)
)
)
TO: JIM. MTIRRRT.T.
YOU ;ARE "HEREBY COMMANDED, ;PQ.
Tffe'spdnse/^Goift^hakt:x6k^rari^f Lial^.lit^ Act-..fectionl -122(e^) f-3-V^B):.y'
TOl A#g&AJ? •• >8K5orf,afe the ••'^oilowirig.'place and time;,
TIME AND- DATE':" H: 3,0 P. My > Wednesday, May 1.6 , ,, 19 9.0
RLACESlowest;^ JSr.Q.adway.y '••lOt'h v-Fl6'o-r',
Doiii.'sv'i 1I's , Kentucky 40202
YOU ARE. COMgAN&ED IjyRTHEJR -^CO,.
:$ipSKDltfe.; :£&'l'£:fe£&d ; - '^dv-o^lalled;
arid ¦ 19'681, ; thferi arid'-.'there put. t£?;you qn:"behalf 'Vo £'.',;thfe i.Un-ited •'•*•
S.tatjBS Etiyitonmeht'Al''Prbtectibri': Agehcy, and TO REMAIN IN-
ATTENDANCE- Until expressly .excused bv.- the att^ornev/sl- comdticti'rto
the' titikieieLdi rnVTvfnV.-.tvfte .. EPA'/.
YOXJ ARtf eOMMAND$:D. FURTHER;TO BiRlNG WITH YOU, at the . time and.
pl^c^\«t'^i^d.'.'abdVe > •: arid' then / and -.tHere produce: for 'inspection
arid/o;r qopyirig, ;tho£ litems.-. identified: and described in
Attachment A • hereto -¦-
EPA regulations governing confidentiality of business
information are set forth ini Part .2, -.-Subpart B. of Title. 40 Of.
.the • Code.; of ; Federal. -Reguiatioxis ..For"., any.'.portion"of^ the.
<;6ii£ideri*tiat:' treatmentyou may assert such, a claim in
accordance with 40 C.F.R. Section 2 . 2.03 (b).
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-2-
NONCOMPLIANCE WITH THIS SUBPOENA HAT SUBJECT YOU TO A CIVIL
ENFORCEMENT ACTION.
Issued at. Atlanta. Georgia this day of May, 1990.
Attorney Contact:
Brooke F. Diqkerson
Office ;of" Regional Counsel', . Region IV,
Hazardous -J^ste: Law Branch
3 45:•.C^i^iaisd' Stj ~ N .'J2;
A^iaj*t,a - G^ri !3035 5"
^i'j&ect.c«Ci;; * wh!sp&^^arlageinerit:
Ddi^i&ixTn;... ERA/ - .Tlegipn.; IV-
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ATTACHMENT A
lo3c to tlie operation*of Tri-City
Industrial Services, Inc. or the disposal o£ waste or hazardous
waste at the aforesaid Tri-City Industrial site between 1964 and
1968, including but not limited to the following:
1. Any - and ^ll documents pertaining to the operation of or
waste dispofi&l at t#0b Tri-City Industrial Services, Inc.
facility located on Grade Lane;
2. Any and all documents pertaining £0 the. operation of . and.
was te diSposal- at the Tri-ei ty site "on Brooks Hilj. Road;
-Anyv. and - all /lists pf "¦ customers f orwliom Tpi.-rCity ..industrial
wastsesi d^iiig.^Jvev gtat^dT t'iitfe "^riod';
whether . pr£ViousXv; supplied tci EPS Voir not
4 . Any ana all. correspondence,: contracts., or otte*: doquments
betw^en.Tri-C.ity^Indust;!^
^^;^ji^^iair*c^^ri^lS/Viiras^"trMs'i|LC'ti^nv Brokers %
contractors -subcontractors -,6r employees;
5... ; -The''>tmed..:^nli4-''9ct^esde^-.'o£all ..Employees; of Tri-City
Industrial .Services/ Inc „ '.dliring the ...stated .' time., periods - and
5. The names end aaaresses or. .a 1i . contir<3.c tors, pr.. subcontractors." ¦
who . perf ormed any servicSs; relating "to. the; Tri^ityV'.sibe.. »^n
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AFFIDAVIT OF SERVICE
UNITED STATES ENVIRONMENTAL PROTECTION A6ENC7
I hereDy certitv that being a person over 18 years of age, I
served a copy of the attached subpoena:
(check one ) ( ) in; person
( ) by registered main
( ) by ieaving the .copy at the principal pla.ce of
business,. which-- is,
JIM.- Mvucrell
;2805'- Alilqe Aven,u * kentuc kv 4 0 2 2.0.
•.by. other, method:
yOh.'fcfre" .perstop. iicuued on- tne .sunppena . on
(date\
sigijait u£e •; of
server
name' of server
titl,e
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BEFORE THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
345 COURTLAND STREET, N.E.
ATLANTA, GEORGIA 30365
IN THE MATTER OFI
TRI—CITY INDUSTRIAL DISPOSAL
SITE, BROOKS HILL ROAD
BULLITT*COUNTY, KENTUCKY
NO. 90-01-S
SUBPOENA DUCES TECUM AND
SUBPOENA AD TESTIFICANDUM
TO: JAMES ALTON FROMAN, RESPONDENT:
YOU ARE HEREBY COMMANDED, pursuant to Title 42, United States
Code, section. 9622(e")'(3) (B) {Comprehensive Environmental
Response, Compensation, and Liability- Act Section 122(e)(3)(B)}
TO APPEAR IN PERSON at the. following piace and time.
TIME AND DATE:
PLACE: :
YOU ARE COMMANDED FURTHER, TO TESTIFY THEN AND THERE under oath
and;GIVE'TRUTHFUL ANSWERS/to all lawful inquirieSarid qy&stions
-Regarding the Tri-City Industrial Disposal Site, Brooks Hill
Road, Bullitt County; Kentucky then and tftiere. put to "you on
behalf of the.United States Environmental Protection Agency, and
TO REMAIN IN ATTENDANCE until expressly excused by the
attorney(s) conducting the proceeding for the EPA. YOU ARE
COMMANDED FURTHER TO BRING WITH YOU at the time and place stated
above and then and there produce for inspection and/or copying
any and all documents in your possession in connection with,
regarding or in any way pertaining to Tri-City Industrial
Services, Inc. or the disposal, of waste or hazardous waste at
the aforesaid Tri-City Industrial site between 1964 and 1968.
NONCOMPLIANCE WITH THIS . SUBPOENA MAY SUBJECT YOU TO A CIVIL
ENFORCEMENT ACTION.
Issued at Atlanta, Georgia this
day of April, 1990.
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- 2 -
Attorney Contacts
Brooke F. Dickerson
Office of Regional Counsel, Region IV,
Hazardous Waste Law Branch
345 Courtlan^ Street*. N.E.
Atlanta, Georgia. 30365
Director, Waste Management
Division, EPA, Re,gipn IV
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AFFIDAVIT OF SERVICE
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I hereby certify that being a person over 18 years of age, I
served a copy of the attached subpoena:
( clieck one) ( '; ip person
( ) by registered main
(. ) by leaving, the copy at the principal place of
business, which is,
( ,) by other method:
On the person named on the subpoena on
{date}
signature of
server
name of server
title
-------
| 522^ ^ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
\«<*/ REG"ON lv
345 COURTLAND STREET. N^.
ATLANTA. GEORGIA 30365
OFFICE OF REGIONAL COUNSEL
TELECOPY TRANSMITTAL SHEET
Date: /DV>5/
T0: , PHONE: —
0 £. FAX #: DfcO 4^33-
o&c phone: fifo'F) zti -u^<7/ v«aasi
OFFICE:
FROM:
NUMBER OF PAGES (Including Transmittal Sheet): ^
CONFIDENTIAL NOTICE
THE INFORMATION CONTAINED IN THIS FACSIMILE MESSAGE IS
PRIVILEGED AND CONFIDENTIAL INFORMATION INTENDED FOR THE
USE OF THE ADDRESSEE LISTED ABOVE. IF YOU ARE NEITHER
THE INTENDED RECIPIENT NOR THE EMPLOYEE OR AGENT
RESPONSIBLE FOR DELIVERING THIS MESSAGE TO THE INTENDED
RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISCLOSURE,
COPYING, DISTRIBUTION OR THE TAKING OF ANY ACTION IN
RELIANCE ON THE CONTENTS OF THIS TELECOPIED INFORMATION
ARE STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS
TELECOPY IN ERROR, PLEASE IMMEDIATELY NOTIFY US BY
TELEPHONE TO ARRANGE FOR RETURN OF THE ORIGINAL DOCUMENTS
TO US.
If transmission problems occur or you are not the intended
recipient, please call:
(404) 347-2641 immediately
Extension 0
OFFICE OF REGIONAL COUNSEL FAX NUMBER
MACHINE TYPE TELEPHONE NUMBERS
Harris/3M Comm. (^04) 347-5246
Facsimile 2225
NOTES /COMMENTS: ^XKZAJLj to ^D C ^ ^44^ Qi^ Ujt&JL
H
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December 15, 1992
ROUTING AND TRANSMITTAL SLIP
TCh
TmtialH
Date
—- 1 »
1. Teresa Atkins
2. Phyllis Harris
3. Anne Allen
y i
4. Anita Davis
5
Charles Swan
ddek
I
Mb/h
Kirk Lucius
Richard Green
Joseph Fr*»n*mnthes
ACTION REQUESTED: approval of adminstrative subpoena
REMARKS: Zellwood Groundwater Contamination Site, Florida
Enclosed is an administrative subpoena under Section 122(e)(3)(B) of CERCLA for the
the Waste Management Division Director. The subpoena requires Michael ..
questions unTrtatb on Friday, December 18. Originally, Mr. Murphy a^eed to to take tas
deposition without issuing ah adminstrative subpoena. I was informe y
Mr. Murphy will be at the deposition, it will be necessary for us to present Mr. Murphy wtha
subpoena before we begin the deposition. The administrative subpoena »-h^ggreview
fussuuurt "to fcPA C-uviartciL 4r asr^i. a
FROM: Teresa Atkins, PRC 347-2641, x 2281 5-^7
Region IV Routing and Transmittal Slip Form (March 1992, kbs)
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MESSAGE CONFIRMATION
TOTE TIME TX-TIME
12 15 10:58 02'25"
DATE:12/15/92 TIME:11:00
ID:EPA f^GIONAL COU
DISTANT STATION ID MODE PAGES RESULT
202 260 4632 G3-S 004 OK
-------
BEFORE THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
345 Courtland Street
Atlanta, Georgia 30365
IN THE MATTER OFx ) ADMINISTRATIVE FILE
) NO. 93-01-S
Zellwood Groundwater )
Contamination Site )
Zellwood, Florida )
) SUBPOENA AD TESTIFICANDUM
To: MR. JOHN MICHAEL MURPHY
Drum Service Company of Florida
803 West Jones Avenue
Zellwood, Flotida 32798, Respondent:
Pursuant to the authority of Section 122(e)(3)(B) of the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, 42 U.S.C. S 9601 et. seq.. as amended by the
Superfund Amendments and Reauthorization Act of 1986, Pub. L. No.
99-499, 100 Stat. 1613 (1986) ("CERCLA"), the United States
Environmental Protection Agency ("EPA") is issuing this subpoena
for the purpose of determining liability and otherwise
implementing Section 122 of CERCLA by collecting information
relating to the following: the reconditioning of drums at Drum
Service Company of Florida ("DSC"); the duties of the past
owners, shareholders and employees of DSC; the past customers of
DSC; and, your involvement at the Zellwood Groundwater
Contamination Site located in Zellwood, Orange County, Florida
YOU ARE HEREBY COMMANDED TO APPEAR IN PERSON at the following
place and time:
DATE AND TIME: December 18, 1992, at 9:00 a.m.
PLACE: Carlton, Fields, Ward, Emmanuel,
Smith & Cutler, P.A.
Firstate Tower
Orlando, Florida 32802
At the above time and place, the EPA will take the statement of
John Michael Murphy, regarding the hazardous substances at the
Zellwood Groundwater Contamination Site, upon oral examination
before a court reporter or other officer authorized by law to
take sworn statements.
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2
YOU ARE COMMANDED FURTHER TO TESTIFY THEN AND THERE UNDER OATH,
AND GIVE ORAL AND TRUTHFUL ANSWERS to all lawful inquiries and
questions asked to you on behalf of EPA, and TO REMAIN IN
ATTENDANCE until expressly excused by the attorney conducting the
proceeding for the EPA.
You are entitled to claim confidentiality over the information
provided to EPA, in accordance with 40 C.F.R. Part 2.
FAILURE TO COMPLY WITH THIS SUBPOENA MAY SUBJECT YOU TO A CIVIL
ENFORCEMENT ACTION.
Issued at Atlanta, Georgia, this VM. day of — * 1992.
Joseph R. Franzmathes
Director
Waste Management Division
U. S. Environmental Protection Agency
Any questions concerning this subpoena should be directed to:
Teresa Harris Atkins
Assistant Regional Counsel
Office of Regional Counsel
U. S. Environmental Protection Agency
345 Courtland Street, NE
Atlanta, Georgia 30365
404/347-2641, ext. 2281
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AFFIDAVIT OF SERVICE
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I hereby certify that being a person over 18 years of age, I
served a copy of the attached subpoena:
(check one) ( ) in person
( ) by registered mail
( ) by leaving the copy at the principal
place of business/, which is
Drum Service Company of Florida
803 West Jones Avenue
Zollwood, Florida 32798
( ) by other method:
on John Michael Murphy, the person named in the subpoena on
, 1992.
Signature of Server
Name of Server
Title
-------
Cardinal
-------
\
I | UNITED STATES ENVIRONMENTAL PROTECTION AGENCY .
WASHINGTON. D.C. 20460 {jtVo/ZU •
$*pi" erOc-t.M'M j>fpe/ch
OFFICE OF ENFORCEMENT
MEMORANDUM
SUBJECT:
FROM:
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
"otherwis^implemeg^^iail^SSSftiAIkJ^/ they may be issued in
OTKnectTo!T'wTtIw)?prior to formal negotiations with PRPs, or
where the Agency judges that available_Jjiformation_points__to
favorableprospeccs frir goftlomonf. T ot-T-rmrfl y onronrafro »ho USe
of this underutilized information gathering mechanism.
As a practical matter, subpoenasjja^andgJjgijld^Jjg^issued
whenever responses to Section 104(e) information requests
indicate that a person iscohnectedtoa site as a potentially
responsible party, and that, settlement may be an anprnnriafA
r esoia^iojnof^^ajiattej?. Ill
-------
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 a time 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^Bripr_to_fclifi^asnance of_a_gectlon 122 adminTsEraETVF*
subpoena., wnile consultation is not a legal prerequisite LU "
enrorcement of a subpoena, our experience has confirmed the value
of the consultatiQn^gfioiiigemfiDt. 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 Fogart^ (FTS 260-8865) (See the
companion memorSR9CniPE9SGe3^Eo3ay entitled "Consultation with OE
under CERCLA Delegation 14-6"). If John is unavailable, please
contact Michael Northridge (FTS 260-3586).
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„•*= J">f ATTACHMENT 1
( 1 united states environmental protection agency
\ WASHINGTON. OC. 20460
*<
AJS 25 008
•: ¦ i
v# • ' *-*c
kv*. vcs«*" - •
MEMORANDUM
SUBJECT: Transmittal of Guidance on Use and Enforcement of
CERCLA Information Requests and Administrative
Subpoenas
FROM: Thomas L. Adams, Jr.
Assistant Administrator
TO: Regional Administrators, Regions I - X
Regional counsel. Regions I - X
Directors, Waste Management Divisions, Regions I - x
With tftis memorandum, I am transmitting guidance on the use
and enforcement of EPA's information gathering authorities under
CERCLA $s 104(e) and 122(e>(3)(B). The attached guidance
document replaces existing guidance entitled, "Policy on
Enforcing Information Requests irv-Hazardous waste Cases," dated
September 10, 1984, to the extent that the earlier guidance
addressed information gathering under CERCLA"S104(e) -
Attachment
ccr 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
Prolans Enforcement
Robert J. Mason, Acting Chief, Guidance and Oversight
Branch, Office of waste Programs Enforcement
Lisa K. rrledman. 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 I - X ^
Clem Rastav . Executive Assistant, Office of Emergency an-
Remedial response
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GUIDANCE ON USE AND ENFORCEMENT OF CERCLA INFORMATION REQUESTS
AND ADMINISTRATIVE SUBPOENAS
TA2LE OF CONTENTS
INTRODUCTION
II. BACKGROUND 2
A. Prior information-Gathering Authorities z
B. Administrative Information-Gathering Distinguished from
Discovery 3
III.DELEGATED AUTHORITIES TO USE INFORMATION-GATHERING TOOLS.. 6
IV. SCOPE AND TIMING OF INFORMATION-GATHERING PROCEDURES...... 7
A. Information Requests 7
B. Administrative Subpoenas L2
V. SERVICE OF INFORMATION REQUESTS AND SUBPOENAS . .. 13
VI. GENERAL DUE PROCESS CONSIDERATIONS IN INVESTICAT'Vt
PROCEEDINGS PURSUANT TO AN ADMINISTRATIVE SUBPOENA 14
A. Agency Adjudications and Investigations Distinguished.... 14
B. Role of Witness' Counsel at Administrative Subpoena
Proceedings 15
VII. ENFORCEMENT OF INFORMATION REQUESTS AND SUBPOENAS 16
A. Information Requests .... 16
1. Initial Steps 16
2. Administrative Orders to Compel Compliance 17
3. Civil Actions to Compel Compliance 18
4. Scope of Judicial Review 20
5. Penalties 21
B. subpoenas 23
1. Jurisdiction and Venue.. 23
2. Procedures for Enforcing Subpoenas 24
C. Referrals.....*. 25
VIII. DISCLAIMER 26
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z
ability to obtain information, a full exercise of these
authorities, including talcing 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 55104(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, 3 if necessary.
II. BACKGROUND
A. Prior Information-Gathering Authorities
Prior to the enactment of SARA, information regarding
hazardous waste sites was gathered primarily under the pre-SARA
provisions of CERCLA 5104(e) and RCRA $3007. Section 104(e)(5),
authorizing administrative orders, civil actions and penalties
of up to $25,000 for each day of noncompliance, now el.l- -tates
the need to incorporate RCRA S3007 solely for enforcement
purposes. However, in appropriate circumstances where RCRA
information gathering authorities are applicable. Regions may
2 This guidance replaces existing guidance entitled,
"Policy on Enforcing information Requests in
Hazardous Waste Cases," dated September 10, 19*4, to the extent
that the previous guidance addressed information gathering under
CERCLA 5104(e).
3 CERCLA 5109(a)(5), as amended, also authorizes EPA
to '* administrative subpoenas "in conjunction with
nearings" on Class*I administrative penalties. This guidance
does not specifically address the use of administrative
subpoenas in that context.
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4
Discovery, on the other hand, is conducted after an action
is filed in court. The Federal Rules of Civil Procedure govern
che rr.anner and scope of this type of information-gathering. °
During the course of both an administrative investigation
and discovery, a party may be required to provide oral testimony
or produce documents. 7 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 documents. 8
6 Nonetheless the Agency is not precluded from using
its administrative information gathering authority
once a civil action is commenced. In re Stanley Plating Co..
Inc.,., 637 F. supp. 71 (D. Conn. 1986), United States v. Browning
- Ferris Chemical Services, et al.. No. 87-317-B (M.D. La.,
November 16, 1987).
7 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^ deposition can be taJcen in the usual course of
discovery. Alternatively, if the Agency expects to bring an
enforcement action and it is not likely that the respondent win
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, see.
Petition o* Carv Constr. Inc.. 96 F.R.D. 432, 433 (D.Colo.
1983), A. , Position 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.jl.Civ.P. 45 (Subpoenas) do not apply to
administrative subpoenas. Other Rules are less explicit but are
(continued...)
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6
1. Within the underlying statutory authority of the agency;
2. Sufficiently definite/specific;
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 INFORMATION GATHERING TOOTS
On January 23, 1987, the President signed Executive Order
12S80 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 Response, the
Assistant Administrator for Enforcement and Compliance
Monitoring and the Regional Administrators by DeJ zqaw. i.or 14-6,
"Inspections, Sampling, Information Gathering, Subpoenas and
Entry for Response," signed on September 13, 1987.
Under Delegation 14-6, the authority of the Regional
Administrator and the Assistant Administrator for Solid Waste
and Emergency Response to issue compliance orders or sub*. ;nas
is limited by the requirement that they first consult with the
Assistant Administrator for Enforcement and Compliance
9 See, e.g. - f.T.C.. v. Texaco. S55 F.2d 862, 882 (D.C.
Cir. 1977), where the court stated,
the question is whether the demand I- fiddly
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(3) (i» and 3(b)(1)-'of Executive Order 12580.)
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8
Initial attempts to gather information about a given site
commonly will be through the use of information requests issued
under CERCLA si04(e). While an information request may be sent
in advance of a general notice letter* as a component of the
general notice letter, or after the general notice letter, as
needed, 11 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 typically should
seek the following types of information:
-relationship of the PrtP to the site;
-business records relating to the site, including,
but not limited to, manifests, invoices, and record
books;
-any data or reports regarding environmental monitorL-z
or environmental investigations at the site;
-descriptions and quantities of hazardous substances
transported to, or stored/ treated or disposed at
the site;
-any arrangements made to transport waste material to
the site;
-names of any transporters used in connection with
the site;
'Where financial viability is or will be at issue, and
th« Agency is unable to assess financial viability
effectively through review of publicly available
11 For '"r^her information on notice letters, their
tint...;', and content, see "Interim Guidance on Notice
Letters, Negotiations and Information Exchange," 53 Fed. Reg.
S298 (Feb- 23, 1988).
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under the policy. Failure to identify the policy in a response
to an information request may tend to show that the insured did
not intend to address that type of liability with the policy in
issue. Such subjective intent is often critical in litigation
over tne 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
should be as neutral as possible. Rather than seeking
information about discrete periods of time during which it is
suspected that a given party may be active at a si to, the
information request should cover the period from the first known
instance of waste disposal to the present. Terms such as
"pollution exclusion," "sudden," "non-sudden," or "accidental"
should be avoided and the insured -should not be asked to state
whether its insurance contains such exclusions or coverage.
Ii.stead, 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
automobile liability insurance) and to specify the insurer,
policy, effective dates, and per.occurrence pol^y limits for
each policy. In this way, the Agency obtains the information it
needs to make an initial determination about insurance coverage,
and the insured has not compromised any potential insurance
coverage should it ultimately be liable for any response costs.
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12
A model information request. Largely developed by Region :
:s at cached as Attachment l.
3. Administrative Subpoenas
Section 122(e)(3)(B) gives EPA the power to issue
administrative subpoenas requiring the attendance and testimony
of -imesses (referred to as a subpoena ad testificandum) 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-binding preliminary allocation
of responsibility (NBAR) "or for otherwise implementing" CERCLA
Section 122.
Since the language of S122 is broad and permits the use of
administrative subpoenas "for otherwise implementing [Section
122]," there is no requirement that. EPA first decide to prepare
an >13 AR before issuing an administrative subpoena or that the
information gathered by an administrative subpoena be used only
for an NBAR. 15 Instead, an administrative subpoena mai .a used
14(...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 enforceawnt 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
5122(e)(3) and include: "volume and toxicity of wastes, strength
of the evidence, .'.:ty to pay, litigative risks, public
interest considerations, precedential value, and inequities and
aggravating factors "
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14
person must be served. Service upon a domestic corporation, or
uoon a partnership or otfier unincorporated association, should
be made by personal service or certified mail to an officer,
partner, managing or 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. (See Attachment
2 for a model subpoena and affidavit of service.)
The statute places no explicit limit on the distance that a
witness may be required to travel to appear in response to a
subpoena. Potential locations for such an appearance include an
EPA regional office, EPA Headquarters, a local U.S. Attorney's
office, a court reporter's office, or any other location
considered appropriate under the circumstances.
VI. GENERAL DUE PROCESS CONSIDERATIONS IN INVESTIGATIVE
PROCEEDINGS PURSUANT TO AN ADMINISTRATIVE SUBPOENA
A. Aaencv Adjudications 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 is to adjudicate or to investigate. Examples of EPA
adjudication include the issuance of compliance orders or the
assessment of civil penalties under 53008(a) of RCRA. Before
the Agency may issue a compliance order or assess civil
penalties under RCRA $3008(a), the person against whom the
Agency is talcing action is accorded the procedural rights set
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agency proceeding at which he is compelled to appear,
"representation" under the APT* "varies in meaning defending >*~on
the nature of the function being exercised." F.c.c. v.
Schreiber. 329 F.2d SL7,526 (9tn Cir. 1964).
[WJhile counsel may, as a matter of right, object and
argue objections on the record, just as he may, as a
matter of right, cross-examine and call witnesses in a
trial-type adjudicatory proceeding, these rights do not
exist in the fact-finding, nonadjudicative investigatior
unless specifically provided by statute or duly
promulgated rules. The right to object and argue
objections on the record is not to be implied, here,
from use of the word "represented** [in the
Administrative Procedure Act.]
u*
Thus, although subpoena proceedings under CERCLA are recorded,
and the witness is under oath and may have an attorney present
for consultation, counsel for the witness is not allowed to
"speak to the record," to cross-examine, to aid in developing
\
testimony, or to otherwise "coach" the witness. Furthermore,
other parties potentially affected by the investigation do not
have a right to be present during the questioning.
VII. EHrJRCEMENT OF INFORMATION REQUESTS AND SUBPOENAS
A. Information Requests
i. initial stflpa
When tfce 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
Sl04(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 administratis9 enforcement action may be initiated.
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18
of up to $25*000 per day may be assessed by a court against-, any
n^rty 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. L8
3. Civil Actions to Compel Compliance
Alternatively, or in the event that an administrative order
does not lead to compliance, EPA, through DOJ, can commence a
civil action under 5104(e)(5)(B). 19 In that civil action, EPA
can seeJc injunctive relief and/or civil penalties not to exceed
525,000 per day for each day of noncompliance.
A referral to DOJ for an inadequate response or no response
18 Normally, the consultation requirement win be
fulfilled by offering the recipient an opportunity
to contact the EPA with questions 'or objections, in the
information request itself or in any subsequent reminder letter.
Given this prior opportunity for consultation and the narrow
scope of the order, it generally win not be productive to delay
the order and offer another opportunity for consultation.
However, if it is likely that additional discussion will lead
directly t& 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.
Section 104(e)(5)(B) states:
The President may ask the Attorney General
commence a civil -action to compel compliance
with a request a* otflfll referred to in
subparagraph (A).
EPA's ability to commence a civil action without first issuing
an administrat' '^rder to compel compliance under 5104(e) was
upheld in U.S. ,*inarlas George Trucking Co.. NO. 85-2463-WD
(1st Cir. March 31. 1988). See also, u.s. v. >^rTftgtde sanitary
Landfill. Inc.. No.- IP 88-172-C, (S.D. Ind. April 12, 1988).
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20
favored. Tor example, if the recipient of an information
request has made little or no effort to respond to the request,
or has a history of disregarding requests for information or
delaying responses to requests, issuing an administrative order
may serve little purpose. 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
disregarded since enforcement of the order win be through the
referral and filing of a civil judicial action.
4. Scope of Judicial Review
In an action to enforce an information request or an
administrative order for compliance with an information request,
the court's review is limited to considering whether the
information request is "arbitrary and capricious, an abuse of
discretion, or otherwise not in accordance with law."
Sl04(e)(5)(B>
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22
with the initial information request or subsequent, compliance
order. Trie question of whether to seeK penalties may arise in
two situations: l) 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 situations, to support penalties, the evidence must
demonstrate: l) that the information request is enforceable, 24
and 2) that the respondent's conduct was unreasonable. To
assess the reasonableness of a respondent's conduct, and thus
determine whether to seek penalties, Regional personnel should
consider factors such as the respondent's good faith or lack of
good faith efforts to comply with-the information request, and
23 In information request enforcement actions,
penalties can be assessed against a respondent even
if he eventually compiles with the information request. See
e.g. U.S. v. Liviola. 605 F. Supp. 96 (N.D. Ohio 1985), U.S. v.
Charles Gftorae Trucking Co. . 823 F.2d 685 (1st Cir. 1987).
2* 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 to
comply with" an Agency request or administrative order. Failure
to respond adeq* ?Vy 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 reasc-ar. .•
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24
2. Procedures for Enforcing Suhoopnag
Enforcement proceedings are >3egun 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 enforcement
proceedings "unless otherwise provided by statute or by rules of
the district court or by order of the court in the proceedings,"
courts have consistently held that subpoena enforcement
proceedings are summary, and tliat discovery is generally
inappropriate given the scope of the issues before the court. z~
To prevent a respondent from attempting to engage in
discovery prior to the show cause hearing, the petition may
include a request that Rules 26-37 and 45 be suspended unless
specifically reinstituted by the court following the hearing.
The petition, accompanied by affidavits and legal memoranda,
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. pfb Petroleum'. Inc. . 703 F.2d 528, 533
(Temp. Bnerg. Ct. App.) I quoting n.s. v. Juren. 687 F.2d 493, 494
(Temp. Emerg. Ct. App. 1982).] This burden is not a "meager
one...[the defendant] must come forward with facts suggesting
that the subpoena is Intended s&filX to serve purposes outside
the purview of the-jurisdiction of the issuing agency." N.LiB
v. Interstate Dregs Carriers. 610 F.2d 99, 112 (3d Cir. 1979)
(emphasis added, citations 'omitted). See also tLS¦ V ¦ MCGQVi
87 F.R.D. 590 (M.D. Pa. 1980), Lvnn v. Biderman. 536 F.2d- 821
fl?C I a+H r 1 \ itanjarf biiK 11 . A70 f
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26
A referral to enforce an administrative subpoena should
consist of a draft petition for an order to show cause, a draft
memorandum of points and authorities in support of the petition,
and a draft order to accompany the petition. The memorandum of
points and authorities should briefly set out the facts of the
case and 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 an affidavit of service, a
copy of the subpoena, an affidavit supporting the facts alleged
in the petition from a person with knowledge of th^se facts, and
any other relevant material which serves as the administrative
record documenting the subpoena process.
VIII. DISCLAIMER
This memorandum and any internal procedures adopted for its
implementation are intended solely as guidance for empl*' ?s of
the U.S. Environmental Protection Agency. They do not
constitute rulemaking by the Agency and may not be relied upon
to creat# 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 c internal
implementing procedures.
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2
Your response to this Information Bequest should be mailed to:
'J. 5. Environmental Protection Agency
[N'ame of Program Person]
[Section Name]
[Address]
Due to the legal ramifications of your failure to respond
properly, EPA strongly encourages you-to give this matter your
immediate attention and to respond to this Information Request
vithin the time specified above. If you have any legal or
technical questions relating to this Information Request, you
may consult with the EPA prior to the time specified above.
Please direct legal questions to rwaine of PRC Person! of the
Office of Regional Counsel at (XXX) [XXX-XXXX]. Technical
questions should be directed to fName of Program Person!. at the
above address, or at (XXX) [XXX-XXXX].
Thank you for your cooperation in this matter.
Sincerely,
[Name]
Waste Management Division
Attachment
cc. fcase attorney namel. Office of Regional Counsel
fCase program parson name!. Waste Management Division
[Name], Director, Office of Waste Programs Enforcement
{Name], Director, Office of Emergency and Remedial Response
rstate program staff person name, as appropriate!
rstata- Assistant Attorney General, as appropriate!
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4
1. The term "you" or "Respondent.•' snail mean the addressee of
tnis Request, the addressee's officers, managers, employees,
contractors, trustees, partners, sv'.cc^ssors, assiens.. *"<1
agents.
2. The term "person" shall have the same definition as in
Section 101{21) of CERCLA: an individual, firm, corporation,
association, partnership, consortium, joint venture, commercial
entity, United States Government, State, municipality,
commission, political subdivision of a State, or any interstate
body.
3. The terms "the Site" or "the facility" shall mean and
include the property on or about the [Name of
owner(s)/operator(s)1 property that is bounded by [roads,
streams, etc. ] in [city or town and state], and is also known as
(common name, if any, e.g., the PSC Resources Site].
4. The term "hazardous substance" shall have the same
definition as that contained in Section 101(14) of CERCLA and
includes any mixtures of such hazardous substances with any
other substances, including petroleum products.
5. The term "pollutant or contaminant," shall have the same
definition as that contained in Section 101(33) of CERCLA, and
includes any mixtures of such pollutants and contaminants with
any other substances. Petroleum products mixed with pollutants
and contaminants are also included in this definition.
6. The term "hazardous waste" shall have the same definition
as that contained in Section 1004(5) of rcra.
7. The term "solid waste" shall have the same definition as
that contained in Section 1004(27) of RCRA.
8. The term "materials" shall mean all substances that have
been generated, treated, stored * or disposed of or otherwise
handled at or transported to the Site, including but not limited
to all hasardous substances, pollutants and contaminants,
hazardous wastes and solid wastes, as defined above and, [1 list
specific ehmieals bf concern at Site).!
9. The term "hazardous material? shall mean all hazardous
substances, pollutants or contaminants, and hazardous wastes, as
defined above.
10. The term "non-hazardous material" shall mean all material
as defined above, ^excluding hazardous substances, pollutants and
contaminants, and hazardous waste.
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6
any document and (e) every document referred to in any other
document.
16. The terms "and!: and "gl" ail ail 'oe cor.atrued either
disjunctively or conjunctively as necessary to bring within the
scope of this Information Request any information which might
otherwise be construed to be outside its scope.
17. The term "arrangement" means every separate contract or
other agreement between two or more persons.
18. The terms "transaction" or "transact" mean any sale,
transfer, giving, delivery, change in ownership, or change in
possession.
19. words in the masculine shall be construed in the
feminine, and vice versa, and words in the singular shall be
construed in the plural, and vice versa, where appropriate in
the context of a particular question or questions.
20. All terms not defined herein shall have their ordinary
meaning, unless such terms are defined in CERCLA, RCRA, 40 CTR
Part 300 or 40 CFR Parts 260 - 280, in which case the statutory
or regulatory definitions shall apply.
[FINANCIAL BACKGROUND DEFINITIONS]
21. The term "property interest" means any interest in
property including but not limited to, any ownership interest,
including an easement, any interest in the rental of property,
any interest in a corporation that owns or rents or owned or
rented property, and any interest as either the trustee -r
beneficiary of a trust that owns or rents, or owned or nted
property.
22. The term "asset" shall include the following: real
estate, buildings or other improvements to real estate,
equipment, vehicles, furniture, inventory, supplies, customer
lists, accounts receivable, interest in insurance policies,
interests in partnerships, corporations and unincorporated
companies, securities, patents, stocks, bonds, and other
tangible as well as intangible property.
QUESTIONS
[QUESTIONS FOR ALL PRPSl
#. Identify the person*s) answering these Questions on behal:
of Respondent.
*. For each and. every Question contained herein, identify a.,
persons consulted in the preparation of the answer.
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8
#. Describe the physical characteristics of the Site
including but not limited to the following:
Surface structures ( = .<5.. bui.lriir.-3c. ranJcs, otr.)
Ground -ater wells, including drilling logs.
c. Past and present storm water drainage system, sanitary
sewer system, including septic tanJc(s) and subsurface disposal
field(s).
d. Any and all additions, demolitions or changes of any
kind to physical structures on, under or about the Site, or to
the property itself (e.g. , excavation work) and state the dates
on which such changes occurred.
*. Tor each and every prior owner, operator, lessor or lessee
of amy portion of the Site known to you:
a. Identify such person and the nature of their operation
at the Site.
b. Describe the portion of the Site owned, operated, leased
by each such person and state the dates during which each
portion was owned, operated or leased.
c. Provide copies of all documents evidencing or relating
to such ownership, operation or lease, including but not limited
to purchase and sale agreements, deeds, leases, etc.
d. Provide all evidence that hazardous materials were
released or threatened to be released at the Site during the
period that they owned the Site.
#. Provide all existing technical or analytical information
about the Site, including but not limited to data and documents
related to soil, water (ground and surface), geology,
geohydrology, or air quality on and about the Site, fand list
sneriflc document3 vou want!.
Do you know or have reason to know of any on-going or
planned investigations, of the soil, water (ground or surface),
geology, hydrogeology or air quality on or about the Site? if
so:
a. Describe the nature and scope of these investigations;
b. Identify the persons- who are undertaking or will
undertake these investigations;
c. Describe the purpose of the investigations;
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10
a. Wh«n such releases occurred or may occur.
t>. How the releases occurred cr may occur.
c. What hazardous materials were released or may be
released.
d. What amount of each such hazardous material was so
released.
e. Where such releases occurred or may occur.
f. Any and all activities undertaken in response to eac.n
such release or threatened release.
g. Any and all investigations of the circumstances., nature
extent or location of each such release or threatened release
including, the results of any soil, water (ground and surface),
or air testing that was undertaken.
h. All persons with information relating to subparts a.
through g. of this Question.
#. If any release or threatened release identified in
response to Question [#.], above, occurred into any subsurface
disposal system or floor drain inside or under any buildings
located on the Site, further identify:
a. Where precisely the disposal system or floor drains ar
and were located.
b. When the disposal system or floor drains were installed
c. Whether the disposal system or floor drains were
connected to pipes, and if so, the purpose of such pipes.
d. Where such pipes are or were located.
e. When such pipes were installed.
f. How and when such pipes were replaced, repaired, or
otherwise changed.
# Identify all persons, including you, who may have
manufactured, given, sold, transferred, delivered, or otherwise
handled, [describe what was found'at the site, e.g., barrels
marked "Dupoiit" or TCE, etc.]. In addition:
a. Describe in complete detail all arrangements pursuant t
which such persons may have so handled such items or materials.
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12
and sourct of all materials accepted *nd transported to trie
Sice.
#. t'or each such Tr«a"i3pGrt.e.. , fur thai- idor.t i fy
a. In general terms, the nature and quantity of all
non-Hazardous materials transported to the Site.
b. The nature of the hazardous materials transported to t.K.e
Site including the chemical content, characteristics, and
physical state (e.g., solid, liquid).-.
c. Whether any of the hazardous materials identified in
subpart b exhibit any of the characteristics of a hazardous
waste identified in 40 CFR $261 Subpart C.
d. Whether any of the hazardous materials identified in
subpart b are listed in 40 CFR §261 Subpart D.
e. [Insert additional specialized questions to determine
whether any hazardous substances at the Site are RCRA hazardous
wastes.]
f. The persons from whom the Transporter accepted hazardous
materials including, but hot limited to, [insert potential
generators].
g. Every date on which the Transporter transported the
hazardous materials to the Site.
h. The owners of the hazardous materials that were accepted
for transportation by the Transporter.
i. The quantity (weight and volume) of hazardous materials
brought by the Transporter to the Site.
j. All tests, analyses, analytical results and manifests
concerning each hazardous material accepted for transportation
to the Site..
k. TUe precise locations at the Site to which each
hazardous Material was transported.
l. Who selected the location .to which the Transporter would
take each hazardous material.
m. Who selected the Site as the location to which the
Transporter would take each hazardous material.
n. The amount paid to each Transporter for accepting the
hazardous materials for transportation, the method of payment,
and the identity of- the persons who paid each Transporter.
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14
d. State every date on which each Generator made such
a r rzLT.gaments.
e. Describe the nature, including the chemical content,
characteristics, physical state (e.g..„ solid, liquid) and
quantity (volume and weight) of all hazardous materials involved
in each such arrangement.
f. State whether any of the hazardous materials identified
in subpart e. above exhibit any of the-characteristics of a
hazardous waste identified in 40 CFR S261 Subpart C.
g. State whether any of the hazardous materials identified
in subpart e. are listed in 40 CFR $261 Subpart 0.
h. (Insert additional specialized questions to determine
whether any hazardous suJbstances at the Site are RCRA hazardous
wastes.]
i. In general terms, describe the nature and quantity of
the non-hazardous materials involved in each such arrangement.
j. [Describe the nature and quantity of any mu.iic*pal solid
waste involved in any.such arrangement.]
k. Identify the owner of the hazardous materials involved
in each such arrangement.
1. Describe all tests, analyses, analytical results or
manifests concerning each hazardous material involved in such
transactions.
m. Describe as precisely as possible any and all of the
locations at: which each hazardous material involved in such
transactions actually was disposed or treated.
n. Identify the persons who selected the location to which
the hazardous materials were to be disposed or treated.
o. Identify who selected the Site as the location at which
hazardous Materials weie to be disposed or treated.
p. State the amount paid in connection with each such
arrangement, the.method of payment, and the identity of the
persons involved in each arrangement.
q. Describe where the persons identified in subparts l. and
m. of this Question intended to have the hazardous materials
involved in each arrangement treated or disposed and all
documents or other information (written or oral) evidencing
their intent.
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16
t. Identify all persons who may be responsible for the
liabilities of Respondent arising from or relating to the
release or threatened release of hazardous substances at the
Sire, including but not li/ni^ed to successors and individuals.
». Provide a copy of the most current Articles of
Incorporation and By-laws of Respondent.
*. Identify the officers, managers atfid majority shareholders
of Respondent and the nature of their management duties and
. amount of shares held, respectively.
#. [For additional PRP questions, see ORC case attorney.J
[FINANCIAL BACKGROUND QUESTIONS FOR PARTNERSHIP PRPS]
#. Identify all partners comprising [Name of Partnership] and
the nature of their partnership interests.
#. [For additional Partnership PRP questions, see ORC case
attorney.]
[FINANCIAL BACKGROUND QUESTIONS FOR TRUST PRPS]
#. Identify all trustees and all beneficiaries of the [Name
of Trust].
*. [For additional Trust PRP questions see ORC case
attorney.]
[CONCLUDING QUESTIONS FOR ALL RPS]
#. If you have reason to believe that there may be f "'Ohs
able to provide a more detailed or complete response to
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF
Attach
IM THE MATTER OF: ) MISC
)
UNITED STATES of AMERICA, Petitioner )
v. )
" *
Respondent )
)
)
PETITION FOR ENFORCEMENT OF AN ADMINISTRATIVE SUBPOE?JA
ISSUED BY THE ENVIRONMENTAL PROTECTION AGENCY
The United States of America, through the Attorney General,
and at the request of the Regional Administrator, United States
Environmental Frotection Agency (EPA) Region , hereby pet:^ic
the Court for an Order to Show cause why the Respondent should no
be ordered to comply forthwith with the administrative subpoena
previously served upon him.
In support of this Petition, the Petitioner alleges as
follows:
1. The Court has jurisdiction over this matter pursuant to
28 U.S.C. JS1331 and 1345, and 42 U.S.C. 19622(e)(3)(B) of the
Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended.
2. - the Regional Administrator of Region
of the EPA , [city], [state] has revested that the Attorney
General commence this action.
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3
[8. By letter dated __ Petitioner denied
ne-spor.dent's request and reaffirmed the subpoena date
Petitioner's letter is attached as Exhibit D.]
9. On . the return date specified in the subpoena,
[Respondent failed to appear to testify; failed to answer certain
questions put to him; failed to provide the information requested
by subpoena.] [Note: Where a Respondent has failed to answer
specific questions, or has not provided certain documents, those
questions or documents should be specified. ]
WHEREFORE, the Petitioner respectfully prays that;
1. This Court enter an Order to Show Cause directed to the
Respondent, ordering the Respondent:
(a) to appear expeditiously and Show cause why the
subpoena should not be enforced against him, and
(b) to file expeditiously a written response to the
allegations in the Petition by a date certain.
2. This Court enter an Order at the conclusion of these
proceedings enforcing the EPA subpoena and requiring the Respondent
to comply fully with the terms of the EPA subpoena.
3. This Court render such other and further relief as is
just and proper.
Dated: Respectfully submitted.
Attorney tor
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questions put to you on behalf of the U.S. EPA, and TO REMAIN IN
ATTENDANCE until expressly excused by the attorney conducting the
proceeding for the U.S. EPA.
YOU ARE COMMANDED FURTHER TO BRING WITH YOU, at the time and
place stated above, and then and there produce for inspection
and/or copying, all documents and/or records in your possession
which relate to the [INSERT NAME AND LOCATION OF SITE],
including, but not limited to those items identified and
described [INSERT "below:" OR "on the attached page(s)."].
You are entitled to claim confidentiality over the information
provided to U.S. EPA, in accordance with 40 C.F.R. Part 2.
FAILURE TO COMPLY WITH THIS SUBPOENA MAY SUBJECT YOU TO A CIVIL
ENFORCEMENT ACTION.
Issued at [CITY, STATE] this day of , 199_.
[NAME OF RA OR DELEGATEE]
[TITLE]
U.S. EPA REGION [ ]
Any questions concerning this subpoena should be directed to
[INSERT NAME OF ASSISTANT REGIONAL COUNSEL, ADDRESS, AND
TELEPHONE NUMBER]
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION I
X F. KEMCDV FEDERAL BtADCNQ. BOSTON, MASSACHUSETTS 0220>-2211
MEMORANDUM 10)1.5 *51^ \v :: r*
qi-o«\v
DATE: August 29, 1991
SUBJ: Region I Guidance on the Use of CERCLA § 122 Subpoena
Authority
FROM: William Walsh-Rogalski fLiWl 1V\&U4A4*1 £o-\
Senior Associate Regional Counsel' y J
TO: William A. White
Enforcement Counsel for Superfund
Sally Mansbach, Acting Director
OSWER CERCLA Enforcement Division
fW*. ^ i
X-
Please find attached an informational copy of the recently
circulated Region I Guidance on the Use of CERCLA § 122 Subpoena
Authority. This guidance supplements existing national guidance
on this subject and is designed to encourage the use of
subpoenas, where appropriate, and to establish consistent
practices in Region I.
The guidance provides examples of instances where a subpoena may
be the most effective means of obtaining otherwise difficult to
obtain information.. It also provides practice tips, such as
proper service of process and the legal basis for limiting
private counsel's participation in the proceedings, so that case
attorneys will not need to research subpoena-related issues each
time a subpoena is to be used. Finally, the guidance includes
model documents which are tailored to the Region.
The guidance was researched and written as part of the Region I
ORC/WMD PRP Search Project.
Attachment
cc Steve Suprun s
Joan Gillespie^/
Charles Openchowski
Pam Hill (w/o attachment)
Ira Leighton "
Gregory Kennan "
John T. McNeil "
Julie Taylor "
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION I
J.F. KENNEOV FEOERAL BUILOINQ. BOSTON. MASSACHUSETTS 02203-2211
MEMORANDUM
DATS:
8UBJ:
FROHt
TO:
August 15, 1991
Regional Guidance on the Use of CERCLA 5 122 Subpoena
Authority
William Walsh-Rogalski Tfl ft*1
Chief, ORC CERCLA Office y J '
Ira Leighton
Chief, CT Waste Management Branch
Donald BergerA
Chief, Emergfincf Pl«
ling & Response Branch
ORC Superfund Attorneys -& Paralegals
WMD CERCLA RPMs and Superfund Enforcement Support Section
EPRB CERCLA Enforcement Staff
SUMMARY
In the last several months there has been a significantly
increased use of CERCLA Section 122 subpoenas in the Region. To
date ten Section 122 subpoenas have been issued by Region I; six
of them have been issued in the last 'eight months.1 While not
1 Subpoenas have been used in the following Region I cases:
Cannons Engineering (it appears that three subpoena type
proceedings were conducted in 1988 for this case: the key
friendly witness was subpoenaed for questioning by EPA — PRPs
who signed confidentiality agreements were allowed to attend the
proceeding and cross-examine the witness on the record; a hostile
witness was questioned under oath to test his knowledge and
veracity; and a PRP employee was questioned under oath to confirm
evidence gathered by EPA from other sources); South Municipal
6/90 (questions sought evidence from a corporate officer relating
to parent liability); .Tibbets Road 12/90 (questions aimed at
memorializing evidence from former employee of PRP to be used in
negotiations); Haverhill 5/91 (questions included wide ranging
fact finding, probing the memory and veracity of an uncooperative
witness) ; Nyanza 5/91 (two subpoenas of corporate officers aimed
at developing parent liability); Chesnutis 5/91 (wide ranging
fact finding from an uncooperative candidate PRP
transporter/generator); Winchel Building 7/91 (owner/trustee
questioned as to the nature of ownership trust; also aimed at
impressing upon owner/trustee that EPA was seeking to establish
-------
all of them have been overwhelming successes, each has provided
valuable insight into a case or useful evidence against one or
more PRPs. In addition, this tool has provided both the power
and flexibility necessary to successfully probe the knowledge and
activities of uncooperative witnesses or PRPs for whom Section
104(e) information requests had been ineffective.
This Guidance is intended to provide useful practice tips
and subpoena-related forms tailored for the Region.2 It is also
aimed at encouraging the use of subpoenas, when appropriate, and
establishing consistent practices for the preparation and conduct
of subpoena proceedings in the Region.
RELEVANT NATIONAL GUIDANCE
Two national guidances have set the broad policy outlines
for the use of § 122 subpoenas and the forms to be used in their
issuance: "Guidance On Use and Enforcement of CERCLA Information
Requests and Administrative Subpoenas," August 25, 1988 (OSWER
Directive 9834.4-A) and "PRP Search Supplemental Guidance for
Sites in the Superfund Remedial Program," June 16, 1989 (OSWER
Directive 9834.3-2a) . The forms attached to this memorandum are
adapted from the forms in the first of these guidances and the
practice tips contained in this memorandum are consistent with
both of these guidances. Note that the 1988 Guidance is far more
specific with respect to the use of subpoenas.
INTERPRETING THE STATUTORY AUTHORITY
The statutory authority for the use of subpoenas in
Superfund cases is contained in Section 122(e)(3)(B) of CERCLA,
42 USC § 9622. This section gives the President3 the power to
issue administrative subpoenas to compel the attendance and
testimony of a witness (subpoena ad testificandum) and to compel
that witness to produce documents (subpoena duces tecum). The
relevant statutory language is as follows:
(B) Collection' of information
To collect information necessary or appropriate for
performing the allocation under subparagraph (A)
liability beyond the terms of the trust so as to encourage
settlement).
2 These forms also appear on the ORC LAN G-drive for easy
adaptation for your cases. The G-drive file for each form is
noted at the top of the form.
3 Authority was delegated to the EPA Administrator in
Executive Order 12580 (55 Fed. Reg. 2923) who in turn redelegated
this authority to the Regional Administrators in delegations 14-6
and 14-8-B.
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[referring to the preparation of nonbinding preliminary
allocations of responsibility (NBARs)] or for otherwise
implementing this section [referring to S 122], 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....
The statute is explicit in its grant of authority for the
use of subpoenas to gather evidence for the creation of NBARs.
Section 122(e)(3)(A) provides that the following factors may be
relevant to the development of an NBAR and thus the investigation
of these factors justify the issuance of a subpoena: "volume,
toxicity, mobility, strength of evidence, ability to pay,
litigative risks, public interest considerations, precedential
value, and inequities and aggravating factors."
The second justification for issuing a subpoena, "otherwise
implementing this section," has not been interpreted by the
courts nor explained in any detail in EPA guidance. The limited
discussion in the 1988 Guidance notes:
... an administrative subpoena may be used once the
Agency hais begun to implement the settlement process
under § 122 (e.g. through initiation of informal
discussions or formal negotiations with some or all
affected PRPs, or where the Agency judges that
available information points to favorable prospects for
settlement).
1988 Guidance at 12 - 13.4
A number of persuasive arguments based on the broad language
of the statute and the legislative history of this section can be
made in support of the position that the subpoena authority may
be exercised at any point in enforcement actions so long as there
is the possibility of Section 122 settlement negotiations at some
point in the future 'and the subpoena is aimed at gathering
4 During the drafting of the 1988 Guidance there was some
disagreement between the Office of Enforcement (OE) and the
Office of General Counsel (OGC) concerning the breadth of this
language. OE argued that § 122 subpoenas could be used at any
point in the enforcement case without regard to negotiations.
OGC argued that these subpoenas needed to be directly linked to
settlement negotiations. According to one of the drafters of the
compromise language, the current Headquarters position is that
some form of settlement negotiations must be on the horizon for a
§ 122 subpoena to be issued.
3
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information which will assist the Agency in those negotiations.5
The language and legislative history of Section 122 indicate that
Congress wished to encourage nore expeditious settlements so that
Superfund sites were cleaned up quicker.6 The legislative
history also suggests that EPA is to employ all of the
administrative enforcement tools available to it to encourage
PRPs to settle cases and undertake the clean-up work.7
In addition, the language of the statute concerning NBARs®
and the language concerning the issuance of special notice9
contemplate the issuance of an NEAR at any point after the RI/FS
when it would expedite settlement, and the issuance of party-
specific evidence at the same time as the issuance of special
notice. This indicates that the information gathering authority
in Section 122(e) may be exercised at any point in the PRP search
where the information gathered may expedite settlement and
certainly far in advance of special notice.10
5 Note that while the subpoena authority appears in a
subpart to the subsection dealing with Special Notice, the
language concerning subpoenas reads "otherwise implementing this
section" - referring to all Section 122 settlements. Note also
that since Section 122 controls RI/FS as well as RO/RA
negotiations, subpoenas may be used to support PRP search work in
the pre-RI/FS stage of the site response process.
6 See CERCLA § 122(a). The Conference Report for SARA notes
that the purpose of Section 122 is to expedite settlements and to
assure the effective clean-up of Superfund sites. House
Conference Report (99-962) at pg 252.
7 "Section 122 ... envisions an agency that uses all of its
enforcement tools to persuade PRP's to clean up a site quickly
and effectively so that people are no longer exposed to hazardous
substances." Senate Conference Debate, October 3, 1986, at S
14918.
8 CERCLA § 122(e) (3) (A) reads in relevant part: "[w]hen it
would expedite settlement under this section ... the President
may, after completion of the remedial investigation and
feasibility study, provide a nonbinding preliminary allocation of
responsibility ..."
9 CERCLA § 122(e)(1)(B).
10 It has been suggested that in those instances where
Section 122 of CERCLA does not provide the basis for issuing a
subpoena (e.g. where the sole purpose of the subpoena is to
gather information to be used in litigation), that the Agency use
its authority under Section 11(c) of TSCA, 15 USC § 2610(c), to
issue a subpoena and gather the information sought. The case law
4
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EFFECTIVE 08E8 OF CERCLA SECTION 122 SUBPOENAS
The investigatory administrative subpoena proceeding, like
its criminal counterpart., the grand jury hearing, has many of the
benefits of a deposition' yet few of the disadvantages. In sua,
the government can require a witness to appear with certain
documents to testify under oath on the record in a proceeding
closed to all except government personnel, the witness and his
attorney. The proceeding is conducted and controlled by the
government attorney authorized in the subpoena. In addition, the
role of the attorney for the witness is tightly circumscribed; he
or she cannot object to questions, ask questions of his or her
client on the record, 07 make statements on the record. If the
government has good reason for doing so, the transcript may be
treated as enforcement/confidential and the witness be limited to
inspecting the transcript rather than obtaining a copy. A
witness who refuses to answer questions or produce documents can
be civilly prosecuted in the Federal District Court; refusal to
provide the information after an order from the court will
subject the witness to penalties for contempt of court.11
The primary disadvantage of subpoenas is that the
preparation for them can be extremely labor intensive; in most
instances subpoenas are inappropriate for routine information
gathering from a large number of sources. Listed below are a
number of examples of instances in which the subpoena can be the
most effective method of gathering evidence and preserving it for
use in negotiations.
Note however, that the 1988 Guidance indicates th£t the
Agency favors using Section 104(e) information requests to gather
evidence in the first instance.1' Even if it is anticipated
under TSCA gives the Agency broad authority to issue subpoenas
under that section. See In the Matter of US EPA v. Alveska
Pipeline Service Company. Misc. No. 723, aff'd 836 F.2d 443 (9th
Cir. 1988) (EPA can investigate merely on suspicion that the law
is being violated, or even just because it wants assurance that
it is not) and cases cited therein. However, when the TSCA
subpoena authority is employed as an alternative to CERCLA § 122,
the Agency must be prepared, if the subpoena is challenged, to
submit to the court an affidavit stating that there is a bona
fide TSCA investigation pending or under consideration.
11 Courts have broad powers to fashion sanctions for
contempt, including fines and/or imprisonment. See gen. 18 USC
§401.
12 "Although there is no statutory prohibition against doing
so, a subpoena generally should not be used in the first instance
to gather information. Rather, a § 104(e) information request is
5
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that a recipient will not respond to a § 104(e) request or that
any answers provided will be inadequate, sending such a request
before issuing a subpoena-can be helpful in assessing how
cooperative a witness will be, getting a sense of how much the
witness claims to have forgotten, and gathering some information
with which to confront the witness if his testimony is contrary
to his § 104(e) responses. Also, if it is anticipated that the
witness will not comply with the subpoena, sending a 104(e)
letter lays a foundation for an argument to a court that the
Agency used more than one enforcement tool (including the less
invasive information request) to obtain information from the
uncooperative witness.
The following are some examples of effective uses of
subpoenas:
1. The witness has failed to comply with or has provided
incomplete or evasive answers to a Section 104feV
information request. In many instances, especially where a
witness is represented by counsel, 104(e) questions are
misconstrued or narrowly interpreted so as to provide as
little valuable information as possible. In addition,
questions are objected to and not answered. Issuing a
subpoena with an attached request for documents has prompted
opposing counsel in a number of cases to offer the withheld
information in lieu of compliance with a subpoena. If the
Agency refuses such an offer and conducts the subpoena
proceeding, evasive responses to questions can be probed in
depth and ambiguous answers to questions clarified. For the
witness who has ignored a Section 104(e) request, the
arrival of a subpoena can be a shocking revelation that EPA
has the authority to compel the appearance of that witness,
with documents, at the time and place which EPA chooses.
Finally, some individuals and small business are not
proficient with written materials but can easily respond to
verbal questions.13
2. Section 104(el responses or other evidence sources Indicate
that the witness' veracity needs to be tested. In some
instances witnesses conveniently forget facts relevant to a
site or provide less than convincing explanations for
particular acts or documents. A subpoena proceeding - where
the preferred method of obtaining information." 1988 Guidance at
1.3.
13 With respect to those individuals who are not proficient
with written materials, consideration should be given to
conducting an informal interview of the individual before the
issuance of a subpoena to determine the necessity of the
subpoena.
6
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the witness testifies under oath - is formal enough to make
the casual or ineffective liar change his story or remember
the facts, or to confirm that the witness is either telling
the truth or is a good consistent liar. Paper responses
fail to provide the: opportunity to evaluate credibility that
live testimony allows.
3. There is a need for wide-ranging fact finding from a kev
witness and preservation of sworn testimony will aid in
negotiations, in some instances one or two individuals will
hold the key to the liability of important PRPs or know a
great deal about the operation of, and the contributors to,
a site. In these instances, informal interviews can be
effective and efficient tools to discover the information,
but interview notes may not be effective in pinning down the
evidence or in showing PRPs that definitive evidence of
their liability exists. A subpoena proceeding provides the
flexibility for probing a broad range of issues with a
witness and also creates a record of that information -
testified to under oath - to present to PRPs. In addition,
subpoena proceedings allow effective, focused inquiry into
unexpected information of which little or nothing was known
before the proceeding.
4. There is a need to refresh the witness/ recollection as to
events or documents in order to thoroughly probe the
witness* knowledge. On occasion, it may be that a PRP
employee or someone who worked at the site has provided good
general information but does not recall much specific
information. It may be that with the assistance of
documents, maps, aerial photographs and other aids that the
individual's memory can be refreshed. While an informal
interview may be more conducive to such a process for
friendly witnesses, adverse witnesses may need to be
confronted with this evidence in a more formal setting and
testify to it under oath.
5. There is a need'to develop or confirm evidence of one or
more elements of liability and to do so with Section 104 re)
questions would be too burdensome. Some elements of
liability must be proven circumstantially or proven through
the use of many related documents. Such is often the case
when attempting to prove control of a subsidiary by a parent
or the de facto merger of two companies. Subpoenas have
been effectively used in this Region to develop successor
and parent liability information and to confront a witness
with a wide range of documents which could not be
effectively done with a Section 104(e) request. In
addition, the subpoena proceeding enables the Agency to
resolve through focused questioning particular elements of
liability that it anticipates will be stumbling blocks in
negotiations. A subpoena also allows the Agency to test the
7
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strength of its evidence, especially when that evidence is
hearsay or includes only a few key documents or statements.
6. There is a need to make clear that EPA has the authority
request a broad range of information, not aimnlv information
that private counsel believe to be relevant. Witnesses, and
at times their counsel, will often refuse to answer
questions which have been designed to lead to important
evidence but which do not specifically probe the hazardous
materials disposal practices of the witness (e.g. questions
about how non-hazardous materials were disposed, where
hazardous materials that did not go to the site were
disposed, etc.). Subpoenas are effective not only in
probing these areas with immediate results but also serve to
educate witnesses and their counsel that EPA has very broad
investigatory authority under CERCLA.
DOCUMENTS NECE8SARY TO ISSUE A SUBPOENA
Two documents form the core of the subpoena package to be
sent for signatures14: the subpoena itself and a memorandum to
the Regional Administrator explaining and justifying the use of
the subpoena.15 In addition, an affidavit of service will be
needed for all subpoenas and a schedule of documents requested of
a witness should be prepared for a subpoena duces tecum. All of
these documents may be found on the ORC LAN G-drive and will be
edited and updated as the Region gains more -experience with this
tool.
As highlighted in the 1988 Guidance, it is imperative to
identify and document the reasons relied upon for deciding that
the subpoena falls within the statutory authority of Section
122(e)(3)(B). Those reasons should appear in the memorandum
addressed to the RA. To the extent that those reasons include
enforcement/confidential information, the memorandum to the RA
should be marked as such.16 In addition, the memorandum to the
RA should contain the specifics of the subpoena (person, place,
u The current practice for sign-offs is to send it through
the ORC first-line supervisor, then through WMD or ESD to the
respective Division Director, and finally to the Regional
Administrator for signature.
15 Note that the subpoena form requires a docket number.
One may be obtained from the Regional Hearing Clerk in ORC.
16 Since this memorandum may ultimately be submitted to a
court or obtained in discovery if judicial enforcement of the
subpoena is necessary, the enforcement/confidential information
should be included in the memorandum so that it can easily be
redacted.
8
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tine), the nature and status of the Superfund site, and the
boiler plate explanation of the Section 122 authority and the
case attorney'8 opinion that the subpoena is consistent with that
authority and the national guidance.
Using the standard forms, the documents can be drafted in
several hours. If the papers are 'walked through' ORC and HMD
for signature, it should not take more than two or three days
from start to finish.
PRACTICE TIPS
Listed below are a number of practice tips that can make the
use of subpoenas less administratively taxing and more effective
at obtaining valuable evidence.
1. Service of Process: There is no statutory or regulatory
prescription for serving subpoenas pursuant to CERCLA
Section 122(e)(3)(B). Since ordinarily Congress would
provide for the method of service in the authorizing statute
or, if Congress had not addressed it, the federal agency
would promulgate regulations specifying how service should
be made17, there is currently a procedural vacuum in this
area. The 1988 Guidance indicates that while there is a
preference for service in hand, it is also possible to serve
an individual or organization by certified mail, return
receipt requested.18 While service by certified mail,
return receipt requested is consistent with the Agency
regulations relating to service of subpoenas issued pursuant
CERCLA Section 109 (administrative penalty assessment
proceedings)19, it is inconsistent with the Federal Rules
of Civil Procedure.20 Thus, if there is a possibility that
the subpoena will be challenged, it should be served in
hand.21 As a practical matter, it may be most effective to
17 See Stein, Mitchell, & Menzines, Administrative Law §
20.05[ 1] (Bender, l'990 ed.) (service of process for subpoenas
found either in the authorizing statute or in agency^specific
regulations).
18 1988 Guidance at 13 - 14.
19 See 40 CFR § 22.39(b)(2) and § 22.05(b)(1).
20 See Fed. R. Civ. P. 45(c) (requiring service "upon a
person named therein ... by delivering a copy ... to such person
...").
21 Within the Region, EPA civil investigators will
ordinarily serve subpoenas or arrange for a reliable contractor
to serve them. Outside the Region, civil investigators from
9
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contact counsel for the witness prior to the final draft of
the subpoena and ask him or her to accept service by
certified nail.22 This may also be an opportunity, if
appropriate, to find a mutually agreeable date for the
proceeding.
2. Hiring a Stenographer! While it is possible for the ORC
attorney to requisition funds and hire the stenographer, it
is less of an administrative burden to have the PRP search
contractor hire the stenographer with TES contract monies.
The RPM, Civil Investigator, OSC or Enforcement Coordinator
can arrange with the contractor to hire a stenographer. If
there is no TES contractor assigned to the case, a
procurement request/order (EPA Form 1900-8) should be
completed.
3. Paving Witness and Mileage Fees: In accordance with CERCLA
Section 122(e)(3)(B) subpoena witnesses! shall receive the
same fees and mileage that are paid witnesses in the federal
courts. The current fees are $40.00 per day (or any portion
of it) and $.24 per mile. These figures change from time to
time; check with the clerk of the Federal District Court in
Boston to assure that the correct fees and mileage are
paid.23 To pay these fees,, a procurement request/order
(Form 1900-8) should be completed.24
other regions may agree to serve subpoenas (this should be
arranged through Region I Superfund Enforcement Support Section)
or a U.S. Attorney's Office may be willing to arrange for U.S.
Marshal to serve the subpoena. While there is no definitive rule
for who may serve subpoenas in hand, Rule 45(c) of the Federal
Rules of Civil Procedure provide that service be made by the
marshal, deputy marshal, or by persons who are older than 18
years of age. The 1988 Guidance seems only to require that
service be made by a person older than 18 years of age.
22 If counsel agrees to accept service for his client or
the witness himself agrees to accept service by mail, such an
agreement should be memorialized in a cover letter to the
subpoena indicating the date and time of the agreement.
23 This information can be obtained from the civil clerk's
office of the Federal District Court, 617/223-9153.
24 For more information on this subject, as well as
examples of properly completed forms, see the memorandum from
William F. Hanscom to Bruce Marshall dated May 23, 1991, entitled
Payment of Fees to Witnesses.
10
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4. choosing a Time and Place: In setting the time and place
for a subpoena proceeding, the uniquely governmental nature
of the proceeding must be kept in mind. A Section 122
subpoena proceeding is an investigatory administrative
proceeding akin to a grand jury hearing25; it is a
governmental function With no counterpart in private
litigation.26 Except in rare instances, subpoenas should
be conducted at EPA's Regional Office, or, if it is to be
conducted in another state or out of the Region, should be
conducted in a U.S. Attorney's Office or other federal
agency. Examinations should not be conducted at other
locations such as the witness' home or the office of the
witness' attorney.' Subpoena proceedings should also be
conducted on a date convenient for the Agency and consistent
with the enforcement needs of the case. While the witness
or his counsel may be consulted on setting a date and time,
the Agency should set the parameters for choice and make the
final decision.
5. Preparation of Documents & Question Outline: As in much of
the practice of law, preparation for a subpoena proceeding
is 95% of the work. Documents which may be presented to a
witness need to be reviewed, culled, redacted if necessary,
and duplicated (it is helpful to have two copies of every
document to be used in the proceeding - an unmarked copy for
the witness to review during the testimony and to be marked
as an exhibit and a second copy for the ORC attorney
conducting the proceeding). As for the preparation of
questions, attempting to develop and follow a set list of
carefully prepared questions can hinder the testimony as
much as it can encourage it. Unexpected avenues will need
to be explored and the witness may need to be given some
room to speak without too much direction. Thus, outlines of
25 Courts have often compared administrative investigatory
subpoenas and grand" ^ury subpoenas. See Commercial Capital Corp.
v. Securities and Exchange Commission. 360 F.2d 856, 858 (7 Cir.
1966). See also Hannah v. Larche. 363 U.S. 420, 449 at fn. 30 and
cases cited therein, rehearing denied 364 U.S. 855 (1960).
26 Private counsel often attempt to characterize an
administrative investigatory subpoena as another form of
deposition so that he or she may assert some control over the
planning and conduct of it. Despite private counsels' insistence
otherwise, the subpoena power pursuant to Section 122 is an
integral part of the Agency's authority to enforce CERCLA and,
like the information gathering powers pursuant to Section 104 of
CERCLA, it is a governmental function assigned to the President
and delegated to the Agency. There is no role for private
counsel other than to give advice to his or her client.
11
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areas to be probed tend to be more useful than sets of
written questions. (Documents and other evidence to be
shown the witness can be noted on the outline.)
6. Participation of thia RPM. Civil Investigator. OSC. and
Enforcement Coordinator! Tapping the case team's working
knowledge of the evidence gathered during the early phases
of the PRP .search and related technical information can make
the preparation and the conduct of the proceeding much more
efficient. While the questioning of the witness should be
done by the case attorney in most instances, the attendance
and assistance by the RPM/OSC, CI, and/or Enforcement
Coordinator during the proceeding can be extremely
helpful.27 Especially in those instances where the
subpoena is used for broad fact-finding, there may be
technical matters or evidentiary issues with which other
members of the case team will be more familiar; their
participation in the proceeding by discussing issues with
the case attorney during breaks or by passing notes during
questioning can ensure that all important subjects are
covered thoroughly.
7. Defining and Limiting the Role of Opposing Counsel; The
role of the witness' attorney at subpoena proceedings is
extremely limited. The ORC attorney will need to provide
private counsel with information about his or her limited
role at such an administrative proceedings and the statutory
basis for the limitations. Attached to this memorandum and
also contained in the G-drive is a standard introductory
statement for a subpoena proceeding aimed primarily at
explaining to the witness (and his or her counsel) the role
of private counsel. In sum, for investigatory
administrative proceedings there is no constitutional right
of representation; there is, however, a statutory
entitlement to one contained in the Administrative Procedure
Act, 5 USC 555(b).28 That section, as interpreted by the
federal courts and applied by the 1988 Guidance, limits
representation"by attorneys to accompanying their client to
the proceeding and initiating advice to the client during
the proceeding. Counsel may not object to questions or
27 While there are no statutory or regulatory requirements
that an attorney conduct the subpoena proceeding, it is Region I
policy that in all but the most unusual circumstances the case
attorney will do so.
28 See Hannah v. Larche. 363 U.S. 420, 450 - 451 rehearing
denied 364 U.S. 855 (I960); F.C.C. v. Schreiber. 329 F.2d 517,
526 (9th Cir 1964) modified on other grounds 381 U.S. 279 (1965).
12
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speak to the record.29 It is important that the role of
counsel at Region I proceedings is consistently limited to
these two functions.. If the ORC attorney decides to allow
counsel to object or make any statements on the record,
there should be a case specific reason entered on the record
for allowing it.
8. Confidentiality of the Proceeding: Section 122 subpoena
proceedings are investigatory rather than adjudicatory in
nature and therefore are not required to be opern to the
public. As a general matter, Section 122 subpoena
proceedings should be held in private and the transcript and
exhibits should be considered enforcement/confidential.
However, the decision to treat the subpoena proceeding, and
its transcript and exhibits, as confidential is left
entirely to the Agency; the witness has no right or
entitlement to have his testimony kept from the public
eye.30
9. Note on the Release of the Transcript to the Witness and/or
Third Parties; With respect to whether the witness may have
a copy of the transcript, the relevant section of the
Administrative Procedure Act, 5 USC § 555(c) provides "[a]
person compelled to submit data or evidence is entitled to
retain or, on payment of lawfully .prescribed costs, procure
a copy or transcript thereof, except that in a nonpublic
investigatory proceeding the witness mav for good causa be
limited to inspection of the official transcript of his
testimony. "*T The courts have given federal agencies wide
29 See F.C.C. v. Schreiber at 526 (counsel may not object,
argue objections on the record, cross-examine, or call witnesses
at investigatory proceedings unless specifieally provided by
statute or duly promulgated rules). See alSfl 1988 Guidance at 16.
It should be noted that many federal agencies have defined by
regulations the role of private counsel during investigatory
proceedings and some of those regulations allow counsel to object
to questions and to explain their objections on the record. See
gen. Stein, et al., Administrative Law § 19.04[3] (1990). EPA
has promulgated no such regulations. The 1988 Guidance takes the
position that only attendance and initiating advice are allowed
during Section 122 subpoena proceedings.
30 See LaMorte v. Mansfield. 438 F.2d 448, 450 - 451 (2nd
Cir. 1971); Commercial Capital Corporation v. SEC. 360 F.2d 856,
858.
31 The case law appears to allow the witness' counsel to
inspect the transcript as well. Commercial Capital at 858.
13
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latitude in determining what constitutes good cause.52 A
subpoena proceeding ained at broad fact finding, where it
was necessary to divulge or employ enforcement/confidential
information and documents (e.g. lists of candidate PRP
generators and transporters or the substance of interviews
with eyewitnesses) may well constitute good cause for
allowing only inspection of the record. As noted above, the
decision whether to keep the proceeding and testimony
confidential is entirely up to the Agency; the witness has
no right under the Administrative Procedure Act to prevent
his testimony from being released to the public. The
Agency, in its sole discretion, may release the transcript
of the testimony to third parties.
10. Use of the Transcript in Future Enforcement Actions: While
evidence captured in a subpoena transcript may be
effectively wielded during negotiations, in most cases the
transcript itself is hearsay which will not be admissible at
trial. A transcript which is hearsay/may, however, be used
to impeach a witness as a past inconsistent statement and
therefore can be used to lock-in a witness' testimony long
before litigation. ' Admissions made by a party-opponent
during a subpoena proceeding are not considered hearsay by
the Federal Rules of Evidence and may be admitted at
trial.33 In addition, if the declarant (including a non-
party) is unavailable at the time of trial, the Federal
Rules provide an exception to the hearsay rule for
statements against the declarant's interest.34 Also,
regardless of whether the declarant is available, if the
32 See Commercial Capital Corporation v. SEC. 360 F.2d 856,
858 (determination of good cause within 'sound discretion' of the
agency and agency need not explain the good cause in its denial
of the transcript). See also SEC v. Sprecher. 594 F.2d 317 (2nd
Cir. 1979). See gen. Stein et. al., Administrative Law § 19.05
(1990).
33 See Fed. R. Evid. 801(d)(2). Admissions for purposes of
this rule include: any statement which is the party's own
statement; a statement by another which the party has manifested
an adoption or belief in its truth; a statement by a person who
is authorized to make statements for a party concerning the
subject of the statement; a statement by an agent or employee of
the party concerning a matter within the scope of his employment
made during such employment; statement by a coconspirator in
furtherance of the conspiracy. A party-opponent in the CERCLA
context will be a potentially responsible party that the United
States sues for cost recovery and/or the enforcement of an
administrative order.
34 See Fed. R. Evid. 804(b)(3).
14
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declarant has insufficient memory to testify fully and
accurately at trial, the transcript may be read into the
record at trial provided the proper foundation is laid
before offering the evidence (past recollection
recorded) ,55 Finally, there may be other rare instances
where the Federal Rules allow the admission of portions of
the transcript.36
CONCLUSION
For further information contact John T. McNeil, Assistant
Regional Counsel, at 617/565-4973 or FTS 835-4973.
Attachments
35 See Fed. R. Evid. 803(5).
56 See e.g. Fed. R. Evid. 803(24) and 804(b)(5) (general
exceptions to the hearsay rule).
15
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O.t Kah'jjci^lio^^naXcov^i;'* meal "":v"'"
Xv/.v -AsTXs4i>KwK WJvMWWiW1** W Mpm I wcwy n ni f>iV.Z'.
ENFORCEMENT
PRIVILEGED AMD CONFIDENTIAL
ATTORNEY/CLIENT PRIVILEQE — ATTORNEY WORZ PRODUCT
MEMORANDUM
DATES
SUBJs /7; - ' Jt — Super fund Site?
Administrative Subpoena for Testimony and Documents
Relating to ;V".f.. V - V
F ROM S
JMML'. I'll, i'.'Hi'lii "IIilWW-WWilUi *a!tgMi* U* )'M>
Assistant Regional Counsel
TO: Julie Belaga
Regional Administrator
ACTION TO BE TAKEN!
This memorandum recommends that EPA issue a civil administrative
subpoena to Hwaie
aitej^ The attached subpoena, authorized under i 122(e)(3)(B)
oi the Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA), compels to answer questions under
oath and produce documents at {timedate'," placet.
PURPOSE OF ISSUING AN ADMINISTRATIVE SUBPOENA;
Cfhis sectlcm shbulS^escribe Ih 6nel>r ^ ^^a^ the^asort
for.. employing a aiuUbppena,; including |iie inforaa t i^^
the' witness, vhethera $ 104 (e) x6guest. hau3 t*hy
the subcwena^ia thebeat method for obtaining tnformatidtt,f~
V.W. W/.'.V.V.V.WAVVAW.WA^; the
enforcement case, f Note any 'bean' TOinmitinentavjf
STATUTORY AUTHORITY TO ISSUE A SUBPOENA;
Section 122(e)(3)(B) grants EPA the authority to issue
administrative subpoenas requiring the attendance and testimony
of a witness (referred to as a subpoena ad testificandum) and the
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production of documents (referred to as a subpoena duces tecum).
Such subpoenas may be used as is "necessary and appropriate" for
performing a non-binding preliminary allocation of responsibility
(NBAR) "or for otherwise implementing" § 122 of CERCLA, which
governs settlement negotiations. The administrative subpoena
authority is a mechanism by which EPA can collect information
expediently to assist its settlement and enforcement
deliberations. Section 122 of CERCLA sets forth a number of
factors which may be appropriate subjects of inquiry, including
strength of evidence and the risks of litigation.
The attached subpoena to comports with the
purposes of the administra€lve 1s^ by CERCLA.
The issuance of this subpoena will assist the Region in its
negotiations and deliberations under §122 of CERCLA.
EPA POLICY IN ISSUING SUBPOENAS;
This recommendation and the supporting documentation follows the
policy and form set out in the EPA guidances entitled "Guidance
On Use and Enforcement of CERCLA Information Requests and
Administrative Subpoenas," August 25, 1988 (OSWER Directive
9834.4-A) and "PRP Search Supplemental Guidance for Sites in the
Superfund Remedial Program," June 16, 1989 (OSWER Directive
9834.3-2a).
For the reasons set forth in this memorandum, I recommend that
you sign and date the attached subpoena.
2
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[MOt>EL~
^ISTl^ii^Wti^NHENTAL PROTECTION AGENCY
REGION I
Bpston, Massachusetts
IN THE MATTER OF
Docket NO. CERCLA I
SUBPOENA DUCES TECUM AND
SUBPOENA AD TESTIFICANDUM
TO: RESPONDENT:
YOU ARE HEREBY COMMANDED, pursuant to Title 42, United States
Code, § 9622(e)(3)(B) (Comprehensive Environmental Response,
Compensation and Liability Act § 122(e)(3)(B)] TO APPEAR IN
PERSON at the following place and time.
PLACE: United States"Environmental Protection
Agency, Region I
Office of Regional Counsel
One Congress Street, 10th Floor
Boston, Massachusetts
YOU ARE COMMANDED FURTHER TO TESTIFY THEN AND THERE under oath
and GIVE TRUTHFUL ANSWERS to all lawful inquiries and questions
then and there put to you on behalf of the United States
Environmental Protection Agency, and to REMAIN IN ATTENDANCE
until expressly excused by the attorney conducting the interview
for the EPA.
YOU ARE COMMANDED FURTHER TO BRING WITH YOU at the time and place
stated above, and then and there produce for inspection and/or
copying, those items identified and described on the ATTACHED
SCHEDULE OF DOCUMENTS.
NONCOMPLIANCE WITH THIS SUBPOENA MAY SUBJECT YOU TO A CIVIL
ENFORCEMENT ACTION IN FEDERAL DISTRICT COURT.
Issued at Boston, MA, this day of , 199_.
Attorney Contact:
Julie Belaga
Assistant Regional Counsel Regional Administrator
Office of Regional Counsel US EPA, Region I
JFK Federal Building,
Boston, MA 02203
617/565-r " 1
TIME AND DATE
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION I
Boston, Massachusetts
IN THE MATTER OF
)
)
)
)
)
SUBPOENA DUCES TECUM AND
SUBPOENA AD TESTIFICANDUM
Docket No. 1-90
SCHEDULE OF DOCUMENTS
Respondent shall bring the following items in response to the
SUBPOENA in the above-captioned matter.
The term "document" and "documents" as is used in this Subpoena
shall mean any object that records, stores or transmits
information, and includes writing of any kind, formal or
informal, whether or not wholly or partially in handwriting,
including by way of illustration and not by way of limitation,
any contract, agreement, invoice, manifest, bill of lading,
receipt, endorsement, check, bank draft, cancelled check, deposit
slip, withdrawal slip, order, letter, correspondence, fax, record
book, minutes, memorandum of telephone and other conversations
including meetings, agreements and the like, diary, calendar,
desk pad, scrapbook, notebook, bulletin, circular, form,
pamphlet, statement, journal, postcard, letter, telegram, telex,
report, notice, message, analysis, comparison, graph, chart,
interoffice or intra-office communications, photostat or other
copy of any documents, microfilm or other film record, any
photograph, sound recording on any type of device, any punch
card, disc or disc pack generally associated with computers and
data processing; and (a) every copy of each document which is not
an exact duplicate of a document which is produced, (b) every
copy which has any writing, figure, or notation, annotation or
the like on it, (c) drafts, (d) attachments to or enclosures with
any document, and (e) every document referred to in any other
document.
1. All documents in your possession, custody or control that
pertain to
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tMpDEfcrs#6fc6m^APFIDAV*T^0F ' S^^CBtTAugpTt '""IS,' IdSrf^^/LAN:*'-
UNITED STATES : ENVIRONMENTAL PROTECTION AGENCY
REGION Z
Boston, Massachusetts
AFFIDAVIT OF SERVICE
I hereby certify that being a person over eighteen (18)
years of age, I served a copy of the attached subpoena:
( ) in person
( ) by certified mail, return receipt requested
to the following address;
( ) by other method:
on the person named on the subpoena [or the authorized
representative of the person named in tllilluHipodaa}, on
. 199 . "
Signature of Server
Name of Server
Title of Server
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CMbDEiTSP^
SUBPOENA INTRODUCTION
Good morning. My name is I am an
Assistant Regional Counsel with the U.S. Environmental Protection
Agency and I will be conducting the administrative subpoena
proceeding this morning.
Before we begin the question and answer portion of this
proceeding, I would like to say a few words about the nature of
the subpoena and the ground rules for your participation today.
As noted in the subpoena which compelled your attendance
today, this proceeding is authorized by Section 122(e)(3)(B) of
the Comprehensive Environmental Response, Compensation and
Liability Act - otherwise known as CERCLA or the Superfund law.
That provision allows the Environmental Protection Agency to
require the attendance and testimony of a witness, as well as the
production of documents by that witness, for the purpose of
gathering information which may lead to an agreement between EPA
and potentially responsible parties for the clean-up of a
Superfund site and the payment of EPA's and the State's related
costs.
fone paragraph statement concerning thegeneraipurpose of
Issuing a^auS^en^'to this witness ?md> briefly, how it relates
As to the ground rules of this proceeding: this is an
administrative investigatory proceeding and not an adjudicatory
one. As your counsel may have informed you, the United States
-------
Supreme Court [in Hannah v. Larche. 363 U\S. 420, rehearing
denied 364 U.S. 855 (I960).] has held that in such administrative
investigatory proceedings there is no constitutional right to
representation. However, Congress, in the Administrative
Procedure Act [5 USC 555(b)], provided that you may be
accompanied, represented, and advised by counsel during your
testimony at such proceedings. This statutory entitlement to
representation, as interpreted by the federal courts [most
notably, F.C.C. v. Schreiber. 329 F.2d 517 (9th Cir. 1964),
modified on other grounds 381 U.S. 279, 85 S.Ct. 1459 (1965)] and
applied in Guidance by the EPA [see, Guidance on Use and
Enforcement of CERCLA Information Requests and Administrative
Subpoenas, August 25, 1988, OSWER Directive 9834.4-A], allows you
to be accompanied by counsel when you testify and for your
counsel to initiate advice to you during the testimony. This
statutory entitlement does not allow your counsel to cross-
examine you or to present evidence, nor does it entitle your
counsel to speak to the record or to enter objections on your
behalf.
E Jx tne procceqinQ: Xs to ce treated as enrorcetaenc
confidential:} Finally, this investigatory proceeding is not open
to the public. The matters presented by the EPA at this
proceeding are considered enforcement/confidential. While you
may discuss what you recall about this Site with anyone you
choose as well as the fact that you testified here today, the
conduct of this proceeding and any information you gained from
your participation in it must remain strictly confidential.
-------
As we proceed I wish to remind you that you have been placed
under oath to give truthful, complete answers to the questions
posed. You must answer the questions to the best of your
knowledge and ability. Providing a fraudulent, fictitious or
false statement or representation during this proceeding could
subject you to criminal sanctions pursuant to 18 USC § 1001 and
related civil penalties.
The subpoena requested that you bring certain documentation
with you. Please refer to and present these documents as we
proceed through this inquiry.
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s/*,
fS
o UNITED STATSS ENVIRONMENTAL PROTECTION AGENCY
KW?
' «« *<\ .1 ¦ DIM V 1 ¦ 1 IIM ¦ I X. /II Vfc n | 1
fill-
$ WASHINGTON, O.C. 20460
//c^3
25 1938
Of net ot
ENf 0^C£ Mf fit ano
Compliance wONirO"i'
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Guidance on Use and Enforcement of CERCLA
Information. Requests - and Administrative. Subpoenas
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GUIDANCE ON USE AND*'ENFORCEMENT OF CERCLA INFORMATION REQUESTS
AND ADMINISTRATIVE SUBPOENAS
TABLE OF CONTENTS
I. INTRODUCTION 1
II. BACKGROUND. . !, . 2
A. Prior Information-Gathering Authorities 2
B. Administrative Information-Gathering Distinguished from
L) j OO V Q ¦' * . " . .» • *. m . 1 ^ '• ,-4 ¦. '• .¦ • . . ¦ " • .*>« ' t V a.. . . >.*:« • . I 3-
III.DELEGATED AUTHORITIES TO USE INFORMATION-GATHERING TOOLS.. 6
¦IV'"SGO^E" ¦iiSFO£ifo$rbN^ •
A. Information Requests. . . . 7
B. Administrative Subpoenas... .'.V:. - . . . . . '1 . . . - : - 12
V. SERVICE OF INFORMATION REQUESTS AND SUBPOENAS. ........ *. . . 1"3
VI. GENERAL'DUE PROCESS CONSIDERATIONS l'N INVESTIGATIVE'
.. PROCEEDINGS PURSUANT TO AN ADMINISTRATIVE SUBPOENA ...... 14 •
A. Agency Adjudications and Investigations Distinguished. . . . 1 ==
B. Role of Witness' Counsel at Administrative Subpoena
Proceedings 1.5
VII . ENFORCEMENT OF INFORMATION REQUEST'S AND SUBPOENAS. . . . . . . . 16
A. Information Requests.... - ... 16
1. Initial Steps. ...... - -... -... ... . . ... 16
2. Administrative Orders to Compel Compliance ............. 17
3. Civil Actions to Compel. Compliance. 18
4. Scope of Judicial Review 20
, 5 . Pena lties 21
B. Subpoenas 23
1. Jurisdiction and Venue 23
7. Procedures for Enforcing Subpoenas 7.t,
L" . lio t o r";i 1 ;; .• ?.:j
¦j j j ; 11; s''! A ! I-'r'.K'
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%itO s r4f
I SKj
s UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
p' WASHINGTON. D C 20460
AUG 2 5 1988 o»«„r
CNfOBr£Mf.Nt AND
CQMPl laijr.t MON'IOH,f'C
M EHORANDUM
SUBJECT:
FROM:;
TO:
Guidance on.Use and Enforcement of CERCLA
Information Requests and Administrative Subpoenas.
rhoniaLS L.. Ma^ns, .. .
\ss i^tant Admini strator
Regional Administrators, Regions
Reg ioxial Counsel,. Regions I - X
Hi rectors. Waste Manaaement Divisions
Regions T - X
I. INTRODUCTION
The Comprehensive Envi romnental Response, Compensation, ar.c
Liability Act of 1980 (C'ERCLA), as amended by the Superfund
Amendments and Reauthorization Act of 1986 (SARA), provides. EPA
with several methods of obtaining various types of information
front a wide rariae of'entities 1;:-. Section 104(e) . entitled
"Information Gathering arid Accessgrants EPA the authority 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 improvenient in F.PA-
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 wii.it 0!\C1-1 - Office o:
Crnninal En forccmctit. , before proceeding with inlo'.i'.M!. iop.
gathering under CERCLA.
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2
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
q f V>ttie;'informal; ion^a'thepin^ tbc> Is unfifc-r CERCLA' § § 10 4( fe) --and;
122(e)(3)(B), and 2) it focuses on the steps to be taken
throughbut 'the^'iriformat ibn-^at^ier iT^g. proces.'s; to ens-ur fe' -that ¦¦EPA
is in the strongest possible position to enforce an information
request or subpoena; 3 if necessary.'
I1. BACKGROUND
A. Prior Information-Gathering Authorities
Prior to the enactment of SARA, information regarding
hazardous waste sites was gathered primarily.under.the pre-SARA
provisions of CERCLA §104(e) and RCRA §3007. Section 104(e)(5),
authorizing administrative orders, civil actions and penalties
of. up. to $25,000 for each day of . noncompliance, now eliminates
the need to incorporate RCRA.§3007 solely for enforcement
purposes. However, in appropriate circumstances wnere kcra
information gathering authorities are applicable. Regions may
2 This guidance replaces existing guidance entitled,
, "Policy on Enforcing Information Requests in
Hazardous Waste Cases," dated September 10, 1984, to the extent
that the previous guidance addressed information gathering under
CERCLA §104(e).
3 CERCLA §109(a)(5), as amended, also authorizes EPA
to use administrative subpoenas "in conjunction with
hearing;;" on Class I administrative penalties. This guidance
(loo;; not specifically address the use of administrative
subpoenas in r.liat context:.
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3
still consider citing §3007 since RCRA provides the option of
enforcement in a proceeding before an administrative law judge.4
The administrative subpoena authority in CERCLA §122 is new
to CERCLA. However, it is similar to the authority contained in
§11(c) of the Toxic Substances Control Act (TSCA) , 15 U.S.C.
2610 1c):. 5
B. Administrative information-Gathering Distinguished from
Discovery
As an initial matter , d uiscmccion" must- oe '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 statutory responsibilities. The manner and extent of
the investigations are prescribed by the authorizing statute.
Such an investigation may ultimately lead to the filing of a
civil action, (at which time both parties may be allowed
discovery)/ or it may simply be related to an agency\s ongoing
oversight activities!
4 More extensive guidance on information-gathering
under RCRA §3007 may be found in the guidance,
"Policy on Enforcing Information Requests in Hazardous Waste
Cases," OECM, September 10, 1984.
J The use of TSCA yii(c) subpoena authority was
recently upheld by the Ninth Circuit in EPA v.
Alveska Pipeline Serv. Co. . 836 F.2d 443, 446-48 (9th Cir.
1988). In that case, the Court upheld the use of -a TSCA
subpoena to gather information relevant to a lawful inquiry
under TSCA, even though the Court recognized that other
environmental si-.atui'.os, spor i i' i oa 1 ly the Clean Water Act, may
Later prove to be a more i nKMi!:; oi a'.l'.i rosr. i nn '.ho
environmental problem under investigation.
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4
Discovery, on the other hand, is conducted after an action
is filed in court. The Federal Rules of Civil Procedure govern
the manner and scope of this type of information-gathering. 6
During the course of both an administrative investigation
and discovery, a party may be required to provide oral testimony
or- produce. dpciinien-fcs.7. - Houpupr , the. information-oather-ina
tools used in an administrative investigation, and discussed in
tjhis. gU idance ,lega 1 pr.£urict iana 1 . equiv.aients. of.
the more familiar interrogatory, deposition or request for
production of.documents.
D Nonetheless the Agency is not precluded from using
its administrative information gathering authority
once a civil action is commenced. . In re Stanley Plating Co..
Inc. . 637 F. Supp.- 71 (D. ' Conn. 1986), United States v. Browning
- Ferris Chemical • Services . et al. . No. 8 7 --3 1 7 -B ( M. D . La. ,
November 16, 1987).
7 It should be noted that since there is no
opportufiity ..for. cross-examination, testimony. .
obtained bv.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 opti6ns are available., First, when it
becomes clear that the testimony is necessary for trial, the
respondent *S- deposit-ion ran hs f aicen in the usual course of .
discovery. Alternatively -.i ftgpjirv3'expects to lirTfla at\
enforcement action and it is hot likely that the respondent will
be available later during the discovery phase of the case, it
may^g~PPSS!Die tO~pfreserVe a Witness"^ i nvrmy pnrcnanf j-o
Fed.R.Civ.P. 27 either in lieu of issuing an administrative
subpoena, or following the issuance of a subpoenalSee,
Petition of GSirv Constr. . Inc. . 96 F.R.D. 432, 433 (D.Colo.
19&3), A sh v. Cort . 512 F. 2d 909, 911-913 (3d Cir. 1975). In r o
Boland . 79 F.R.D. 665, 667 (D.D.C. 1978), 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
provision;; of Fed.R.Civ.P. ';C> (Subpoena:;) do not. apply to
adirtini.strar.ive subpoenas. Other Rules arc lesi; explici-.. but a:-:
(com. i imod . . . )
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5
In U.S. V. Morton Salt Co.. 338 U.S. 632, 642-643 (1950),
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 mostinteres.t.ed-; in not .doing soBecause, .,. .
"judicial- po w*eris; reluc'tarit'not unable to.summoiri
evidence until it is shown to be relevant to issues
in litigation, it does not follow that an administrative
-a;g4ency;:cftacge
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(l). Within the underlying statutory authority of the agency;
0. Sufficiently definite/specific;
p). Reasonably relevant to the agency's basic inquiry.
In addition, it should be noted that courts may also consider
i
whether a request is unduly burdensome. 9
III. DELEGATED AUTHORITY TO USE INFORMATION GATHERING TOOLS
0n->January -23.,' '198 7 , t:he' Pr.esiden.t?^igned' Executive Ord^r
12580 delegating information-gathering authority in §§ 104(e)
-.and''-''to" the'•¦A-dmi-ftis-t'f-'itof-.c^f^EPA:^^;;' This authority was > :in
turn, delegated from the Administrator to the Assistant
Administrator for So Lid'Waste and Emergency•Response, the
Assistant Administrator for Enforcement and Compliance
Monitoring ana the Regional Administrators by Delegation 14-6,
"Inspections, Sampling, Information Gathering, Subpoenas and
Entry for Response," signed on. September 13, 1987..
Under Delegation 14-6, the authority of the Regional
Administrator and the Assistant Administrator for SolidWaste
arid Emergency. Response to issue compliance orders or suJbpoenas
is limited" by the requirement that they f irst^onsuXt^with the
Assistant Administrator; for Enforcement arid 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 is unduly
burdensome or unreasonably broad. Some burden on
subpoenaed parties is to be expected and is
necessary in furtherance or" the agency'^ legitimate
inquiry and the public interest.
Tlin Arim i n i rater ' :"> nut hor i t.y . however , i«; ! i i r.r>cl
• v.'ii.h regard to fedoral fac i l ii os . (soo Seen.: ons
.'H j > ( I. ) and 3 I b ) ( ). ) of Executive Ordor 121)80.)
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7
Monitoring or his/her designee. On November 19, 1987, the
Assistant Administrator 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 INFORMATION GATHERING PROCEDURES
A.. Information Requests-
-The scope of investigation authorized, by. CERCLA §l04(e)
is . broad. IERCLA; § X0.4'( e) (, 2)., as. amended bv. SARA., provides
Any [duly authorized] officer>.employee or represen-
tative [of the President]... may require any person
who has.or mav have information relevant, to any of
the following to furnish, upon reasonable notice,
information or. documents relating to uuc.U. mat'cer
(A) The identification, nature, and quantity of
materials which have been or are generated, treated
stored, or disposed of at a-vessel or facility or
transported to a. vessel or facility.
(B) The nature or extent of a release or threatened
release of a hazardous substance or pollutant or
contaminant at or from a vessel or. facility,.
(C) Information relating to the ability of a .person
to pay for or 'to perform a-cleanup.
In addition, upon reasonable notice, such person
either (i).shall grant any. such .officer , employee, or
representative, access at,all reasonable times to any
vessel; facility, establishment, place, propertyor
location »tp; inspect aind copy , ajl documents, or /records,
relating to- subh 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. (Emphasis added.)
Section 104(e)(1) 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
provisions of this title. (Emphasis added.)
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8
Initial attempts to gather information about a given site
commonly will be through the use of information requests issued
under CERCLA §104(e). While an information request may be sent
in advance of a general notice letter, as a component of the
general notice letter, or after the general notice letter, as
needed,. 11 an .effort should be. made to- issue, initial information
requests earlier rather than later in the- PRP search process to
a;iq • in process .of. es..tab li s.m ng liabi lity andc la.rif ying/. .the---
universe of PRPs. Initial information requests typically should
seek the following -types-of . information:.
-relationship ol: the PRP to the site,-
-business records relating to the site, including,
but not limited to, manifests, invoices, and record
books ;
-any data or reports regarding environmental monitoring
or environmental investigations at the site;
"descr ipt.ions and quantities of hazardous .substances
transported to, or Stored, treated or disposed at
the site;
-any arrangements made to -transport waste material to
the site;
-names- of any transporters used in connection with
the site;
-where financial viability is or will be at issue, and
the Agency is unable to assess financial viability
effectively through review of publicly available
For further information on notice letters, their
timing, and content, so-:? " I n ;.•:>! i m t';ni dance on Notice
Lo'i.i.or.s, [J'-'joi iation.r". and I n I u r" in. i!. i ;.'!ian<:i> , " S3 l-'ed . i'.ecj.
(rob. 23. iy88).
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9
data, information relating to ability to pay for or
perform a cleanup; 1 ~
Where financial 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 coveraae and t-he nppd t-n auniri
requiring an insured to construe the coverage of its policies.
If a request is overly specific, and a oartv (the insurpd)
to identify insurance that may afford coverage regarding'a
response action, the insurer may attempt to use that failure t-o
nmnciTv r.ne poji.cy in tne information request to avoid payment
1^ 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, 12 U.S.C. 3401,
et. sea:. which limits Government access to a customer's
financial records at a financial institution in accordance with
the provisions of the Act. I-jn most cases, it will "not be
necessary to seek information about a PRP's assets from a
financial; ins.t-i tut: ion.. .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 fir^t consult with Headquarters.
13 Under. GERCIA 5104(e)(2)(c), EPA now has explicit
. . authority, torequest^ information relating to the
ability of a person to pay for or perform a cleanup. Before it
was amended, CERCLA §104 authorized EPA simply to obtain
"information relating to 1 hazardous] substances." EPA typically
construed this language to include all information that EPA
considered relevant to any aspect of enforcement. In U.S. v:
Charles George Trucking Co. . 624 F. Supp. 1185 (D. Mass.), aff'd
on othe r a rounds. 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 tcf 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."' C>2-i F. Supp. a;. 1188.
decision i,s no longer suppon.od in light, oi CKliCl.A s I O-i (M ) (c )
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10
under the policy. Failure to identify the policy in a response
to an information request may tend to show that the insured did
not intend to address that type of liability with the policy in
issue. Such subjective intent is often critical in litigation
over the extent of coverage of insurance policies. The ultimate
fewer, funds would be available
for a response action, and the potential for settlement
d ilnri ni;s tied
Hence, requests tor information acout insurance policies
should be as. neutrai as possible. Rather, than seeking
information .about discrete periods, of time during which- it is
suspected that a given party may be active at a site, the
information request- should cover the .period from- the' first- known
instance of waste disposal to the present. Terms such as
"pollution exclusion," "sudden," "non-sudden," or "accidental"
should be avoided and the insured.should not be asked to state
whether its insurance contains such exclusions or coverage.
Instead, the information request should simply ask the insured
to provide a list: of all property .and casua 1i-y insurance (e.g.
comprehensive general liability, environmental impairment and
automobile liability insurance) and to specify the insurer,
policy, effective dates, and per occurrence policy limits for
each policy. In this way, the Agency obtains the information it
needs to make an initial determination about insurance coverage
and the insured lias not compromised any potential insurance
covc'r.-Kif; .show I (I it ultimately .bo liable for any response cost.;;.
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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.
Inf ormat ion;. requests-.shouid - inclu&e a .br i e{ i clen t i f ica.t ion
and aescription or tne site, a citation to tne statutory
authority , .jaLn
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12
A model information request, largely developed by Region I,
is attached as Attachment 1.
B. Adininistrative Subpoenas
Section 122(e)(3)(B) gives EPA the power to issue
administrative subpoenas requiring the attendance and testimony
of.-ui tnesses: I referred .t-o. as- a suhDoena ad test, if icandiim V and
the production of.documents (referred to. as a subpoena duces
tecum).'.. ¦. Such subpoenal:.may.:, .-be- issued as is ''necessary and
appropriate" for performing a non-binding preliminary allocation
.of. .responsibility (NBAR) "or for -otherwise implementing". GERGLA
Section 122.
Since the language of §122 is broad and permits the use of
administrative subpoenas "for otherwise implementing [Section
122]," there is no requirement that EPA first decide, to prepare
an NBAR before issuing an administrative subpoena or that the
information gathered by'an administrative subpoena be used only
for an NBAJR. 15 .Instead, an administrative subpoena may be used
i4(...continued) -
^984, suggesteid tftat aff idavit l?e requested in a second,
"reminder" letter1. 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.
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 ia minimum, with an
administrative subpoena. These factors are set ft>rth in
§122(e)(3) and include: "volume and toxicity of wastes, strength
of the evidence, ability to pay, litigative risks, public
interest considerations, precedential value, and incqui. tic.inrl
.'icjg ray.it i ng factors . "
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13
formal negotiations with some or all affected L'KPs , or where the
• Agency judges that: available information points to favorable
prospects for settlement). Since the use of administrative
subpoenas may be judicially challenged, it is important to«
identify and document the reasons relied upon in deciding to use
-tie authority in § 122(e) (31(B) . In particular , it is important
to be able to show how the subpoena's issuance either furthers
the NBAR orocess or/meets. the criter.ia; Qf "otherwise
implementing this section;"
Althouah there is no statutory prohibition aaainst doinq so,
3 31.1 11i o. i j. y- • iS I »0 li ' i • Uo 'i;; w - i 1 * c. I .' L
gather information. Rather, a. 5104(e)' information request is
the preferred method of obtaining.information
V. SERVICE OF INFORMATION REQUESTS AND SUBPOENAS
Information request letters are a formal means of obtaining
information-, and consequently should be served.- by registered- oi' .
certified mail, return receipt requested. (Note 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 circumistances of the investigation.
Whenever possible, ppr^nnaJ—ser_vice is preferable, especially
when it is likely that the subpoena may be ignored or
challenged. When personal service is not practical, a subpoena
can be served by registered or certified mail, return receipt
rrqupr.i od . HccjnrrJ 1 o.*::; of v.ia? wctihori o I: :;orv i cc , ?• ho cor' rocr.
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1 4
person must be served. Service upon a domestic corporation, or
upon a partnership or other unincorporated association, should
be made by personal service or certified mail to an officer,
*
partner, managing or 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:; mai ls .
the subpoena when that method of service is used, must complete
art..aiMdav;it:"-bf¦;,-sfervi.oeA:at..-'fche.'. cinie;/of: serviLce; (See- Attachment,
2 for a model subpoena and affidavit of service.)
..The statute places no explicit, limit on the. distance that a
witness may' be required to travel, to.appear in.response tp a
subpoena. Potential locations for such an appearance include an
EPA- regional office-, EPA Headquarters, a local U.S. Attorney's
office, a court reporter's office., or any other location
considered appropriate under the circumstances.
VI, GENERAL DUE PROCESS COWS I DE-RAT I CMS IN INVESTIGATIVE
PROCEEDINGS PURSUANT TO AN ADMINISTRATIVE SUBPOENA
A. Agency Adjudications and Investigations Distinguished
When an agency such as thie 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 is to adjudicate or to investigate. Examples of EPA
adjudication include the issuance of compliance orders ol Lhe
assessment of civil penalties under §3008(a) of RCRA. Before
the Agency may issue a compliance order or assess civil
penalties under K'CRA 5 300" (
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V'J
loi ill in 40 (." I'U Part ?.?. . Those art? si mi Kir t.o those
of .'i 6a I endn in. in a civil trial and include the right t.o notice,
to submit evidence, and to c ross-exam i ne .
In contrast, wnen an agency issues an administrative'
subpoena pursuant to § 122{e)(3)(B) , its purpose is only to
investigate or gather, information aind "it is not necessary that
the full panoply of judicial procedures be used -" Hannah v.
Larche . 36 3 U.S. 4 20 . 4 42 .{i960.)
[ W ] hen . . . agenc ies are conducting nonadjudicative, fact-
finding investigations, rights such as apprisal,
confrontation, or.cross-examination generally do not
obtain: Id. at 446.
i;espn:e tins limitation, a witness may noner. he l ess fri voire
his fiith Amendment privilege as to particular questions
present i ik; a threat of se 1 f- incr iminat ion. U.S. v . . fia ln.i. ¦•8^
F.2d G 0 2., 6.35 (5 th Cir.. 1974),
B. Role of Witness' Counsel at Administrative Subpoena
Proceedings
The practical effect of the fact that witnesses have limited
procedural rights during information-gathering under an
administrative subpoena is that the role of a witness' counsel
is limited. Although §555(b) of the Administrative Procedure
Act {APA) provides a person with the right to counsel at any
Pari: 2.2. procedure.'; do nnu a pp! y to compliance ord«"M\*
issued under CT.RCLA % 10 4 ( o ) ( 5 ) . Due process is
assured under 51.04(e) (5) by the statutory requirements that the
respondent have an opportunity to confer with tHe'Agency prior
to issuance ol the order (discussed below) and that orders be
enlo reed by commencing a civil act: ion. Similarly, Pari.
p iMc-'<:vi •' • do n«>! apply \ o t.'.v • ¦:.5' i v>s
1 1 . • I , • t I •; t I 1. | 1 f *.' • M o * » I V I • ' 1 Ij : r,- * • * • •; * * ¦ j | • : / • ;
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16
agency proceeding at which he is compelled to appear,
"representation" under the APA "varies in meaning depending upon
the nature of the function being exercised." F.C.C. v.
Schreiber. 329 F.2d 517,526 (9th Cir. 1964).
[W]hile counsel may, as a matter of right, object and
argue objections on the record, just as he may, as a
matter of right, cross-examine and call witnesses in a
tr i a 1 - type adjudicato: proc^dinq /•- ttiese - r ightrs do. not.
exist in the fact-ifiriding! nonadjudicative investigation
unless specifically provided by statute or duly
prpmulgated rules. The.fight.to object and argue
6b j ect ions ' dii: tlfe.-.r^brd is' riot. tO-J be- 'IrnpU i'ed.. ¦ lieFe-V¦
from use of ..the word "represented" [in the
Administrative Procedure Act.]
Id.
Thv:r., ,a 1 .v. ~uc!i .subpoena proceedj ng$ under CF.rTi^A arc recorded,
and the witness is under oath and may have an attorney present
for consultation, counsel for ...tb.e. witness, is. not allowed .to
"speak to the record," to cross-examine, to aid in developing
testimony, or to otherwise "coach" the witness. Furthermore,
Other, parties..potentially, affected-by. the- investigationdo-not-
have a right to be present during the questioning.
VII. ENFORCEMENT OF INFORMATION REQUESTS 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 chat
§104(e) provides for a penalty of up to $25,000 par day for
noncompliance, and 2) stating the date after which a civil
jndici.il or a elm i ii i si. rat. i ve en l.'oi'c:o;i!-,>ii!. ,'ic:. ion may bo i n i u iato
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17
The reminder letter should also provide an opportunity for
consultation. ^ This will fulfill the requirement of
§ 104{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 summarizinq any
contacts with the recipient, and stating EPA ' s-- resolution of amy
objections. If there .is no response or if the response to a
request is stil.1 unsa-t i s:i" aq to ry af lo:" tiso reminder letter
deadline has passed, EPA may compel compliance with the request
through•either. an administrative or judicial action.
2. Administrative Orders to Compel Compliance
Under CERCLA §104(e)(5)(A), EPA can issue an administrative
-order directing compliance with ain" information request. Each
administrative order should include a finding by the Regional
Administrator that there exists a reasonable belief 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 was issued. The order should state the date on which it
becomes effective and also advise the respondent that penalties
The statute leaves the decision wjiether to provide
notice and opportunity for consultation to the
discretion of the Agency. However, the Agency believes that it
is in the best interests of nil concerned to provide an
opportunity for consultation v! ion over possible, par t. i cu l y
prior to the issuance or an a«!im i n i s L ra t i ve 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 Compel Compliance
Alternatively, or in the event that, an administrative order
does not lead to comDliarice, EPA. . through D.OJ. . can commence a
civil action under § 104(e) (5)(B). jn that civil action, EPA
can seek injunctive relief and/or civil penalties not to exceed
$25,000 per cUr/ for each. day o: no i icp.uo 1 La: ic c.
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 with questions or objections, in the
information request itself or in any subsequent reminder letter.
Given this prior opportunity for: consultation and the
scope of the order, it generally wil-i not be productive to delay
the order and offer another opportunity for consultation.
However, if it is likely that -additional discussion wi11 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 ?mother opportunity for consultation.prior to
issuance of the order.
19 Section 104(e)(5)(B) states:
The President may ask the Attorney General
commence a civil action to compel compliance
v/ith a request or order, referred to in
subparagraph (A).
EPA's ability to commence a civil action without -first issuing
an administrative order to compel compliance under §104(e) was
upheld in U.S. v. Charles George Trucking Co.. No. 85-2463-WD
(lnt; Cir. March 31, 1988). Soc .i ]. so, U.S. v. No r t hs i do _S.-\n i ta r v
I .and fill. I nc . . No. IP 80 - 17:>. -C , (S. n. ! nd . April 1?., \
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19
at all should include all evidence needed to support the case.
This includes evidence or findings that:
(1) EPA has a "reasonable basis to believe that there may
be a release or threat of a release of a hazardous substaVice ,
pollutant or contaminant" at a given site or vessel;
( 2V the information i for- i-ho mirnnco n-f
determining the need for a response or choosina or takina anv
response action under CERCI,A Title I . or otherwise enforcirtq
CERCLA Title I, with respect to the site or vessel;
(3) the respondent was requested to provide information
minting to. .one or :noro- or t.Mp three categories of/.in fori::;5, t ion. ..
identified in § 104 ( e ) (.2 ) (A ) - (C ) ;
(4). respondent did hot comply with-the-request in a timelv
manner.
(5) where appropriate, respondent should pay a civil
penalty-., recommended at $ . (See Section VII .A. 5 . ,
"Penalties," below.)
In addition, the reierrai snouid include proof of service
and should address possible defenses, such as that a 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-byrcase basis.
Where there is reason to believe that an administrative order
wi ) j. not be i ikj i nimocl i ,'i t: f- eoi;ip ! iniicc, .1 c I v i ! ,K;t. ion .should be
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20
favored. For example, if the recipient of an information
request has made little or no effort to respond to the request,
or has a history of disregarding requests for information or
delaying responses to requests, issuing an administrative'order
may serve little purpose. While an administrative order
typically, can be issued within a shorter period of time than¦s
complaint can be filed, the overall duration of the enforcement
act ion. may . we. 11 be. extended if the administrative ordor. is
disregarded since enforcement of the order will be through the
referral and filina of a. civil iudiriai srtinn.
•¦i .• S-JO;je oL Judicial I'ov i ow
In an actionto enforce an information request or an
administrative order for compliance with an-' information reauest.
the court's review is limited to considering whether the
information request is "arbitrary and capricious, an abuse of
discretion, or. otheryi-se. not in ¦accordance With . law.
§104 { e ) ( 5 ) (B) { i i.) . zu This clearly limited review should not
serve as an opportunity to review other aspects of the case,
20
Judici.nl rev i ow i r. noi ! i m i r orl vlion t:ho
amount: o 1" the: penalty is :.ne is.1",no bcio re tiio cour
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21
such as remedy selection or liability. 2^ (Cf. U.S. v. Western
Processing. Inc.. No. C83-252M (W.D. Wash, February 19,. 1986).
In cases where the Agency has provided an opportunity for
consultation regarding the administrative order, and has created
an administrative record reflecting the parameters and elements
noted on paqes 6 and 19. above, the Government mav arque that
3udicial review of the administrative order should be limited tp
an administrative record. This argument is based upon the
language in §10.4.(e) ( 5 ) (B) that provides, for judicial review,
under the arbitrary and capricious standard. The success of
obtain inc. record rev i ov p.i r.qoz. or. providing clocuinon i: i r.ri
adequate procedural due process administratively. 22
5 . Penalties-
Under § 10'4 ( e ) ( 5) ( B) ( i i ) of CERCLA , civil penalties may be
assessed against any person who unreasonably fails to comply
21 Related to the scope of judicial review is the
degree to which a defendant may engage in discovery
once an enforcement action is.initiated.. Discovery generally is
restricted in enforcement proceedings involving administrative
subpoenas (see n* 27. infra) and similarly, should be restricted
in actions brought un<3,er 5.104 (e).. of- CERCLA; . If discovery is .
allowed at all in a-givieh 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 §104(e)(5)(B)(ii) 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 Agentfy would first
have to provide sufficient procedural due process, including an
opportunity for consultation, and an administrative record would
have to bo created reflecting the p.nnmeters and elements noted
on p;icer. and 19, above.
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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.
In both.vsity.at ions T to support penalties ,... the evidence, roust
demonstrate: 1) that the information request is enforceable,
and 2) that the respondent's conduct was unreasonable. To
assosij reasonableness ,qi a i ospOiiCiOMU * s.. conduct-, ai;Cl'Trills
determine whether to seek penalties. Regional personnel' should
consider factors such as the respondent's good faith or lack of
good faith efforts to comply with the information request, and
in . information, request enforcement actions,
penalties can be assessed, against a respondent even
if he eventually complies with the information request. See
e.g. UiS. v.-Liviolav. 605 F. Supp. 96
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any willfulness or negligence associated with the respondent's
actions. 25
B. Subpoenas
1. Jurisdiction and Venue
If a respondent to an administrative subpoena refuses to
appear to testify or provide documentary evidence, or refuses to
answer any or all of the questions put to him, the Agency may
commence, enforcement proceedings.in. U.S. district court. 25
CERCLA §122(e) ( 3 MB) . states:
In the event of contumacy or failure or refusal
.. of any person to obey any such subpoena; any district
court of- the \>n i rrod • States in. whi.eh. vomie is. proper
shall, have jurisdiction to order any such person to
comply with' such subpoena. Any failure to obey such
an order of the court is punishable by the court as
contempt thereof.
Venue for such an action "shall lie in any district court in
which the release or damages"occurred, or in which the defendant
resides., . may. • be. found, or. has.' his .principal. off ice." ¦ CERC LA
§113(b).
25 The decision to seek penalties should also include
consideration of the Supreme Court's recent decision
in Tull v. United States. 481 U.S. , 107 S.Ct. , 95 L.Ed.
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 sought by the Government.
26 All proceedings in the U.S. district court must be
initiated by the Department of Justice on behalf of
EPA. The court lacks jurisdiction to: review thp propriety of an
administrative subpoena upon motion of a respondent. Be 1le
Fourche Pipeline Co. v. U.S.. 751 F.2d 332 (10th Cir. 1984). If
a respondent wishes to challenge a subpoena, he may refuse to
cooperate ;ind force the Government: to initiate an enforcement
action.
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2. Procedures for Enforcing Subpoenas
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 enforcement
proceedings "unless otherwise provided by statute or by rules of
the.district court or by order of the court in the proceedings,"
courts have consistently held that subpoena enforcement
.p.rocood . arc.. nu::'.'i:in:;y . and . that discovery is generally,
inappropriate given the scope of the issues before the court,
To prevent a.respondent from attempting to engage in
discovery prior to the show cause hearing, the petition may
include a request that Rules "26-37 arid 45 be suspended unless
..spec i f.ical ly ..reinsti tute'd.. by. the cour.t. fol lowing .the"hear ing^
The petition, accompanied bv affidavits and lectal memoranda,
must demonstrate that the subpoena was issued for a lawful
*.! 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. Emerg. Ct. App.)[quoting U.S. v. Juren. 687 F.2d 493, 494
(Tamp. Emerg. Ct. App. 1982). ] This burden is not a "meager
one...[the defendant] must come forward with facts suggesting
that the subpoena is intended solelv to serve purposes outside
the purview of the jurisdiction of the issuing ^g36 F.2d 820.
7 S { 9 \ ! i Cir". ) CPi't . don i od s v i! > iioin, Biderman v . il i Jls ;?_9 U.S.
9 7.0 *( i /f, )•.
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purpose and is relevant to an agency investigation. At the show
cause hearing, the burden is on the respondent to show that the
subpoena is unenforceable in some respect.
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 comply with trie court's
order may result in contempt proceedings against the respondent.
C T Referrals
Referrals to the Department of Justice of cases to enforce
information requests and administrative subpoenas will be
handled in accordance with' the procedures set forth in the
January 14', 1980 memorandum from the Assistant Adm i n i st r atTor for
Enforcement and Compliance Monitoring entitled, "Expansion of
Direct Referral of Cases to the Department of Justice." In
time-critical situations, the-procedures outlined in the the
April 15, 1988 memorandum from the Acting Associate Enforcement
Counsel for Waste entitled, "OECM-Waste Procedures for
Processing. Oral and Other Expedited Referrals" should 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 to the summary nature of an action to
enforce an administrative subpoena, a referral to enforce an
administrative subpoena should contain certain additional
elements not commonly included in other referrals.
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26
A referral to enforce an administrative subpoena should
consist of a draft petition for an order to show cause, a draft
memorandum of points and authorities in support of the petition
and a draft order to accompany the petition. The memorandum of
points and authorities should briefly set out the facts of the
case and 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 an affidavit of service, a
copy of' the subpoena, an affidavit supporting the facts alleged
in the petition from a person with knowledge of those facts, and
any other relevant material which serves as the administrative
record documenting tne suDpoena process..
VIII. DISCLAIMER
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 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 its internal
implementing procedures.
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MODEL Information request
CERTIFIED MAIL [OR DHL]
RETURN RECEIPT REQUESTED
Attachment 1
[Note: No certified or express
mail to P.O.Boxes]
[Date]
rPRP Name}
f PRP Address 1
Re: Request for Information Pursuant to Section 104 of
CERCLA [and Section 3007 of RCRA,] for f Site Name 1
in r Site location 1 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
ire lease brthreatened release of hazardous- substances,
pollutants or contaminants, or hazardous wastes on or about the
rSite Name 1 in fsite Location! (the Site). This investigation
requires inquiry, into the identification, nature, a^nd quantity
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 ability of a person
to pay for or to perform.a cleanup of the Site.
Pursuant to the authority of Section 104 of the Comprehensive
Environmental Response, Compensation, and Liability Act
(CERCLA), 42 U.S.C. § 9604, as amended, [and Section 3007 of th'e
Resource Conservation and Recovery Act (RCRA), 42. U.S.C. §
; 6 927 -,. ]: ..you..are hereby, requested to respond to the •• Information-
Request set fortfi :in Attachment A, a't-tached" hereto.
Compliance with the Information Request set forth in
Attachment A is mandatory. Failure, to respond fully and
truthfully to the Information Request within r insert reasnnahie
number of days to respond, spell out number and put number in
pareiitheises. e.g. . thirty (30M 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 ($25,000) for
each day of continued non-compliance. Please be further advised
that provision of false, fictitious, or fraudulent statements or
representations may subject you to criminal penalties under 18
U.S.C. § 1001 or Section 3008(d) of RCRA.
This Information Request is not subject to the approval
requirements of the Paperwork Reduction Act of 1980, 44 IJ.S.C.
3501 , et seq.
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2
Your response to this Information Request should be mailed to:
U.S. Environmental Protection Agency
[Maine of Program Person]
[Section Name]
[Address]
Due to the legal ramifications of your failure to respond
properly, EPA strongly, encourages you to give this matter your
immediate attention arid to respoftd to. thi$ Information Re
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3
[NAME OF SITE] ATTACHMENT A
[Insert number, e.g., FIRST] INFORMATION REQUEST
Instructions
1. Please provide a separate narrative response to each and
every Question and subpart of a Question set forth in this
Information Request.
2. Precede each answer with the number of the. Question to ...
*rhich it corresponds.
3. . If; information or documents not known or .not available to
you as of "the date" '6 f: 'submission of- a:;tes'po'n5e to . t-firs:
Information Request should later become known or available to
you, you must supplement your response to EPA. Moreover, should
you find, at any time after the submission of your response that
any portion of the.submitted, information is false or . .
misrepresents the truth, you must notify EPA of this fact as
soon as possible and provide EPA with a corrected response,
4. For each document produced in response to this Information
Request indicate.on the document, or in some other reasonable
manner, the number of the Question to which it responds.
5. The information requested herein must be provided even
though'the Respondent may contend that it includes possibly
confidential information or trade secrets. You may, if you
desire, :assert a confidentiality.Claim covering .part or all of
the information requested, pursuant to..Sectiohs 104(e)(7)(Ej and
(F) of CERCLA, as amended by SARA, 42 U.S.C. §§ 9604(e)(7)(E)
and (F), section 3007(b) of RCRA, 42 U.S.C. 6927(b), and 40
C..F.R. 2.203(b),. by attaching to such information at the time it
is submitted, a cover sheet, stamped or typed legend, or.other
suitable form of notice employing language such as "trade
secret," or "proprietary" or "company confidential."
Information covered by such a claim will be disclosed by EPA
only to the extent, and only by means of the procedures set
forth in statutes and regulation set forth above. If no such
claim accompanies the information when it is received by EPA, it
may be made available to the public by EPA without further
. notice to you. You should read the above cited regulations
carefully before asserting a business confidentiality claim,
since certain categories of information are not properly the
subject of such a claim.
Def initions
The following definitions shall apply to the following words as
they*appear in this Attachment.A:
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1. The term "you" or "Respondent" shall mean the addressee of
this Request, the addressee's officers, managers, employees,
contractors, trustees, partners, successors, assigns, and
agents.
2. The term "person" shall have the same definition as in
Section 101(21) of CERCLA: an individual, firm, corporation,
association, partnership, consortium, joint venture, commercial
entity, United States Government, State, municipality,
commission, political subdivision of a State, or any interstate
body:
3. The terms "the Site" or "the facility" shall mean and
include the. property on or about. the.[Name of
owner(s)'/operator(s) j property- that is bounded by•[roads ,
streams, etc.] in [city or town and state], and.is also Jcnown as
[common name, if any, e.g., the PSC Resources Site].
4. The term "hazardous substance".shall have the.same
definition as that contained, in Section 101(14) of CERCLA and
includes any mixtures of such hazardous substances with ajjy
other substances, including petroleum products.
5. The term "pollutant or contaminant,." shall have the same
definition as that contained in Section 101(33) of CERCLA, and
includes any mixtures of such pollutants and contaminants with
any other substances. Petroleum products mixed with pollutants
and contaminants are also included in this definition.
6. The term "hazardous waste"..shall have the same, definition,
as that contained in Section 1004(5) qf RCRA.
7. The term "solid waste", shall have the same definition as
that contained in Section 1004(27) of RCRA.
8. The term "materials" shall mean all substances that have
been generated, treated, stored, or disposed of or otherwise
handled at or transported to the Site, including but not limited
to all hazardous substances, pollutants and contaminants,
hazardous wastes and solid wastes, as defined above and, f(1ist
specific chemicals of concern at Site).!
9>. The term "hazardous material" shall mean all hazardous
substances, pollutants or contaminants, and hazardous wastes, as
defined above.
10. The term "non-hazardous material" shall mean all material
as defined above, excluding hazardous substances, pollutants and
contaminants, and hazardous waste.
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5
11. The term "identify" means, with respect to a natural
person, to set forth the person's name, present or last known
business address and business telephone number, present or last
known home address and home telephone number, and present or
last known job title, position or business.
12. The term "identify" means, with respect to a corporation,
partnership, business trust or other association or business
entity (including a sole proprietorship) to set forth its full
name, address, legal form (e.g. corporation, partnership, etc.),
.org.ani zat ion, if.any,kand a brief .description of its business.
j.j. me term "identity" means, with respect to a document, to
provide its customary business description, its date, its number
if;,.any...( invqi'ce-or purchase order...number) , the. identity. o.f the
author, addressor j addressee and/or retipientaridthe ¦ substance
or the subject matter.
14. The term "release" has the same definition as that
contained in Section 101(22) of CERCLA, 42 U.S.C. § 9601(22),
and includes any spilling, leaking, pumping, pouring, emitting,
emptying,, discharging, injecting, escaping, leaching, dumping,
or disposing into the' environment, including the abandonment or
discharging of barrels, containers, and other closed receptacles
containing any hazardous substance or pollutant or contaminant.
15. The terms "document" and "documents" shall mean any
object that records, stores,.or presents information, and
includes writings of any kind, formal or informal, whether or
not wholly or partially in handwriting, including by way of
illustration and not by way. of limitation, any invoice,
manifest, bill of lading, receipt, endorsement, check, bank
draft, cancelled check, deposit slip, withdrawal slip, order,
correspondencerecord book, minutes, memorandum of telephone
and other.conversations including meetings, agreements and the
like, diary, calendar, desk pad, scrapbook, notebook, bulletin,
circular, form, pamphlet, statement, journal, postcard, letter,
telegram, telex, report, notice, message, analysis, comparison,
graph, chart, interoffice or intraoffice communications,
photostat or other copy of any documents, microfilm or other
film record, any photograph, sound recording on any type of
device, any punch card, disc or disc pack; any tape or other
type of memory generally associated with computers and data
processing (together with the prograjnming instructions and other
written material necessary to use such punch card, disc, or disc
pack, tape or other type of memory and together with printouts
of such punch card, disc, or disc pack, tape or,other type of
memory); and (a) every copy of each document which is not an
exact duplicate of a document which is produced, (b) every copy
which has any writing, figure or notation, annotation or the
like on it, (c) drafts, (d) attactunents to or enclosures with
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6
any document and (e) every document referred to in any other
document.
16. The terms "and" and "or" shall be construed either
disjunctively or conjunctively as necessary to bring within the
scope of this Information Request any information which might
otherwise be construed to be outside its scope.
17. The term "arrangement" means every separate contract or
other agreement between two or more persons.
18. The terms "transaction" or "transact", "mean any-sale,
transfer, giving, delivery, change in ownership, or change in
possession.
19. words m the masculine shall be construed' in the
feminine;, and vice versa, and words in the singular shall be
construed in the plural, and vice versa, where appropriate in
the context of a particular question or questions.
20. . All terms not defined herein shall have their, ordinary
meaning , unless such terms are defined in'CERCLA, RCRA, 4D .CFR
Part 300 or 40 CFR Parts 260 - 280, in which case the statutory
or regulatory definitions shall apply.
[FINANCIAL BACKGROUND DEFINITIONS]
21; The term "property interest" means any interest in
property including but not limited to, any ownership interest
including an easement, any interest in the rental of property
any interest in a corporation that owns or rents or owned or
rented property, and any interest as either the trustee or
beneficiary of a trust that owns or rents, or owned or rented
property.
22. The term "asset" shall include the following: real
estate, buiidings or other improvements to real estate,
equipment, vehicles, furniture, inventory, supplies, customer
lists, accounts receivable, interest in insurance policies,
interests in partnerships, corporations and unincorporated
companies, securities, patents, stocks, bonds, and other
tangible as well as intangible property.
QUESTIONS
[QUESTIONS FOR ALL PRPS]
# Identify the person(s) answering these Questions on behalf
of Respondent.
S For each and every Question contained herein, identify all
persons consulted in the preparation of the answer.
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tt. For each and every Question contained herein, identify all
documents consulted, examined, or referred to in the preparation
of the answer or that contain information responsive to the
Question and provide true and accurate copies of all such
documents.
#. List the EPA RCRA Identification Numbers of the
Respondent, if any, and identify the corresponding units,
facilities or vessels assiqned these numbers.
Describe the acts or omissions of any; persons, ;Other than
your employees, agents or those persons with whom you had a
contractual relationship, that may have caused the release or
threat of. release of. hazardous substances at the site.
En addition:.
a. Describe all precautions that you took against
foreseeable acts or omissions of amy such third parties
[including,, but not limited to insert names if known, e.g. . of
prior owners, etc.1 and the consequences that could fbreseeably
result from such acts or omissions.
b. Describe the care you exercised with respect to the
hazardous substances found at the Site.
#.¦ Identify all persons, including Respondent's employees,
who have knowledge, information or documents about the
generation, use, purchase, treatment, storage, disposal or other
handling of materials at or transportation, of materials to the
Site.
#. Describe all arrangements that Respondent may have or may
have had with each of the following persons: fnames of persons
suspected to be involved with the Site, e.g.. PRPsl.
#. For each and every current owner, operator, lessor or
lessee of any portion of the Site:
a. Identify such person and the nature of their operation
at the Site.
b. Describe the portion of the Site owned, operated, leased
by each such person and state the dates during which each
portion was owned, operated or leased.
c. Provide copies of all documents evidencing or relating
to such ownership, operation or lease, including but not limited
to purchase and sale agreements, deeds, leases, etc.
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8
#. Describe the physical characteristics of the Site
including but not limited to the following:
a. Surface structures (e.g., buildings, tanks, etc.).
b. Ground water wells, including drilling logs.
c. Past and present storm water drainage system, sanitary
sewer system, including septic tank(s) and subsurface disposal
f ieId(s ) .
d. Anyaftd all &dditibri£,: demolitions or changes of any
kind to physical structures on, under or about the Site, or to
the property itself (e.g. , excavation work) and state the dates
on/.which such .changes occurred.
For each:and every prior owner, operator, lessor or lessee
of any portion of the Site known to you:
a. Identify such person and the nature of their operation
at the.Site.
b. Describe the portion of the Site owned, operated, leased
by each such person and state the dates during which each
portion was owned, operated or leased.
c. Provide copies of all documents evidencing or relating
to such ownership, operation or lease, including but not limited
to purchase and sale agreements, deeds, leases, etc.
d. Provide all evidence that hazardous materials were
released or threatened to be released at the Site during the
period, that they owned the Site.
#. Provide all existing technical or analytical information
about the Site, including but not limited to data and documents
related to soil, water (ground and surface), geology,
geohydrology, or air quality on and about the Site, fand list
specific documents vou wantl.
*. Do you know or have reason to know of any on-going or
planned investigations of the soil, water (ground or surface),
geology, hydrogeology or air quality on or about the Site? If
so:
a. Describe the nature and scope of these investigations;
b. Identify the persons who are undertaking or will
undertake these investigations;
c. Describe the purpose of the investigations;
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9
d. State the dates of such investigations;
e. Describe as precisely as possible the locations at the
Site where such investigations are taking or will take place.
#. Identify all persons, including you, who may have given,
sold, transferred, or delivered any material or item, including
flist materials or items of concern, e.g.. TCE or lab packs] to
f 1 ist PRPs1. In addition:
a. State the dates on which each such person may have
given , solids 'transferred Jor delivered -such "-mater i alt
b. Describe the materials or items -that may have been
given, sold, transferred.,or.delivered, including type of
material-, quantity -, • cnemicaji content, -pnysicai: state-., quantity,
by volume and weight, and other characteristics.
c. Describe the intended purpose of each sale, transfer, or
delivery of materials.
d. Describe the source of or process that produced ^the
materials that may have been sold, transferred; or delivered.
e. Describe all efforts taken by such persons to determine
what would actually be done with the materials that may have
been sold, transferred or delivered after such materials had
been sold, transferred or delivered.
[OWNER/OPERATOR QUESTIONS]
#. Did you acquire any portion of the Site(s) after the
disposal or placement of the hazardous substances on, in, or at
the Site? Describe all of the facts on which you base the answer
to this question.
#. At the time you acquired the parcels of the Site(s), did
you know or have reason to know that- any hazardous substance was
disposed of on, in, or at the facility? Describe all
investigations of the Site you undertook prior to acquiring the
Site and all of the facts on which you base the answer to this
question.
#. Did you acquire the facility by inheritance or bequest?
Describe all facts on which you base the answer to this
question.
ft. Describe all leaks, spills or releases or threats of
releases of any kind into the environment of any hazardous
materials that have occurred or may occur at or from the Site,
including but not limited to:
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10
a. When such releases occurred or may occur.
b. How the releases occurred or may occur.
c. What hazardous materials were released or may be
released.
d. What amount of each such hazardous material was so
released.
e. Where such releases occurred or mav orrur.
f. Any and all activities undertaken in response to each
such release or threatened release.
Any . and all. investi'gations Gf the circumstances , 'nature/
extent or location of each such release or threatened release
including, the results of any soil, water (ground and surface),
or air testing that was undertaken.
h. All persons with information relating to subparts, a-,
through g. of this Question.
#. If any release or threatened release identified in
response to Question [#.], above, occurred into any subsurface
disposal system or floor drain inside or under any buildings
located on the Site, further identify:
a. Where precisely the disposal system or floor drains a:re
and were located.
b. When the disposal system or floor drains were installed.
c. Whether the disposal system or floor drains were
connected to pipes, and if so, the purpose of'such pipes.
d. Where such pipes are or were located.
e. When such pipes were installed.
f. How and when such pipes were replaced, repaired, or
otherwise changed.
# Identify all persons, including you, who may have
manufactured, given, sold, transferred, delivered, or otherwise
handled, [describe what was found at the site, e.g., barrels
marked "Dupont" or TCE, etc.]. In addition:
a. Describe in complete detail all arrangements pursuant to
which such persons may have so handled such items or materials.
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b. State the dates on which such persons may have handled
each such item or material;
c. State the amounts of such items or materials that may
have been so handled on each such date;
d. Identify the persons to whom such items or materials ma
have been given, sold, transferred, or delivered;
e. Describe the nature, including the chemical content,
characteristics, physical state (e.g., solid, liquid) and
quant ity.. (volume • and wei ghtj of- al 1. [ descri.be what was found at
the Site, e.g., "lab pafc'ks" ] ' and describe all t<2sts, analyses,
and results of such tests and analyses concerning such items or
materials.
f. State whether any of the materials identified in subpart
e. exhibit any of the characteristics of a hazardous waste
identified in 40 CFR §261 Subpart C.
g. State whether any of the materials identified in subpart
e. are listed in 40 CFR §261 Subpart D".
h. [Insert additional specialized questions to determine
whether any hazardous substances at the Site are RCRA hazardous
wastes.]
i. Describe the nature of the operations that were the
source of the [list what was found at the Site, e.g., la_b
packs].
j. Provide copies Of all documents (including but not
limited to invoices, receipts, manifests, shipping papers,
customer lists-and contracts) which may reflect,, show or
evidence the giving, sale, transfer or delivery, or other
arrangements under which the giving, sale, transfer, or delivery
of any materials to the Site took place.
k. Describe the type, condition, number, and all markings
on the containers in which the materials were contained when
they were handled.
[QUESTIONS FOR POTENTIAL TRANSPORTERS]
Identify all persons, including you, who may have
transported materials to the Site. Such persons win
hereinafter be referred to as "Transporters."
#. For each such Transporter, state whether it accepted
materials including municipal solid waste from a municipa 1ity or
arranged with a municipality by contract or otherwise to accept
materials from any source. If so, describe tlie nature, quantity
-------
12
and source of all materials accepted and transported to the
Site.
#. For each such Transporter, further identify:
a. In general terms, the nature and quantity of all
non-hazardous materials transported to the Site.
b. The nature of the hazardous materials transported to the
Site including the chemical content, characteristics, and
physical state (e.g., solid, liquid).
c. Whether any of the hazardous materials identified in
subpart b exhibit any of the characteristics of a hazardous
waste identified in 40 CFR §261 Subpart C.
d. Whether any of the hazardous materials identified in
subpart b are listed in 40 CFR §261 Subpart D.
e. [Insert additional specialized questions to determine
whether any hazardous substances at the Site are RCRA hazardous
wastes. ]
f. The persons from whom the Transporter accepted hazardous
materials including, but not limited to, [insert potential
generators]
g. Every date on which the Transporter transported the
hazardous materials to the Site.
h.. The owners of the hazardous materials that were accepted
for transportation by the Transporter.
i. The quantity (weight and volume) of hazardous materials
brought, by the Transporter to the Site.
j. All tests, analyses, analytical results and manifests
concerning each hazardous material accepted for transportation
to the Site.
k. The precise locations at the Site to which each
hazardous material was transported.
1. Who selected the location to which the Transporter would
take each hazardous material.
m. Who selected the Site as the location tjD which the
Transporter would take each hazardous materia'l.
n. The amount paid to each Transporter for accepting the
hazardous materials for transportation, the method of payment,
and the-identity of the persons who paid each Transporter.
-------
13
o. Where the persons identified in g., above, intended to
have such hazardous materials transported and all documents of
other information (oral or written) evidencing their intent.
p. All locations through which such hazardous materials
were trans-shipped, or were stored or held, prior to their final
treatment or disposal.
q. What activities transpired with regard to the hazardous
materials after they were, transported to the Site (e.g.
treatment; storage"0r disposal)
r. The final disposition of each of the hazardous materials
brought to the Site..
s. The measures taken by the persons who gave the hazardous
materials to the Transporters to determine what the Transporters
would actually do with the hazardous materials they accepted.
t. The type, number and condition of containers in which
the hazardous materials' were contained when they, were accepted
by the Transporters and when they were left at the Site'and any
other labels, numbers or other markings on the containers.
[QUESTIONS FOR POTENTIAL GENERATORS]
#. Identify all persons, including you, who may have:
a. disposed of or treated materials at the Site;
b'-l arranged for the disposal or treatment of materials at
the Site; or
c. arranged for the transportation of materials to the Site
(either"directly or through transhipment points) for disposal or
treatment- Such persons will hereinafter be referred to as
"generators."
#. For each and every instance in which a generator performed
any of the actions specified in parts a. - c. of the previous
question:
a. Identify the generator;
b. Identify the persons with whom the generator made such
arrangements including, but not limited to [insert list of
suspected transporters].
c. Identify all persons who may have directly or indirectly
transported or otherwise brought any materials, [including
mnnicipal solid waste,] to the Site.
-------
14
d. State every date on which each Generator made such
arrangements.
e. Describe the nature, including the chemical content,
characteristics, physical state (e.g., solid, liquid) and
quantity (volume and weight) of all hazardous materials involved
in each such arrangement.
f. State whether any of the hazardous materials identified
in subpart e. above, exhibit any of the characteristics of a
hazardous waste identified - i-ri .40 GFR 5261 subpart c.
g. State whether any of the hazardous materials identified
in subpart e. are listed in 40 CFR §261 Subpart D.
h. [Insert additional specialized questions to determine
whether any hazardous substances at the Site are RCRA hazardous
wastes.]
i. , In general terins, describe the nature, and quantity of
the non-hazardous materials "involved in each such arrangement .
~
j. [Describe the nature and quantity of any municipal solid
waste involved in any such arrangement.]
k. Identify the owner of the hazardous materials involved
in each such arrangement.
1. Describe all tests, analyses, analytical results or
manifests concerning each hazardous material involved in such
transactions.
m. Describe as precisely as possible any and all of the
locaticms at which each hazardous material involved in such
transactions actually was disposed or treated.
n. Identify the persons who selected the location to which
the hazardous materials were to be disposed or treated.
o. Identify who selected the Site as the location at which
hazardous materials were to be disposed or treated.
p. State the amount paid in connection with each such
arrangement, the method of payment, and the identity of the
persons involved in each arrangement.
q. Describe where the persons identified in subparts 1. and
m. of this Question intended to have the hazardous materials
involved in each arrangement treated or disposed and all
documents or other information (written or oral) evidencing
their intent.
-------
15
r. Describe all intermediate sites to which the hazardous
materials involved in each arrangement were trans-shipped, or at
which they were stored or held, any time prior to final
treatment or disposal.
s. Describe what was done to the hazardous materials once
they were brought to the Site.
t. Describe the final disposition of each of the hazardous
material involved in each arrangement.
u. Describe the measures taken by the generator to
determine how and where treatment or disposal of the hazardous
materials.involved in.each arrangement would actually take
'place;:
v. Describe typ>e, condition and number of containers in
which the hazardous materials were contained when they were
disposed, treated, or transported for disposal or treatment and
describe any labels, numbers or other markings on the
containers.
[FINANCIAL BACKGROUND QUESTIONS FOR ALL PRPS WHERE FINANCIAL
VIABILITY IS OR WILL BE AT ISSUE AND THE AGENCY IS UNABLE TO
ASSESS FINANCIAL VIABILITY EFFECTIVELY THROUGH REVIEW OF
PUBLICLY AVAILABLE DATA]
#. Provide a list of all property and casualty insurance ,
policies (e.g. Comprehensive General Liability, Environmental
Impairment Liability and Automobile Liability policies) [and
Directors and Officers policies] for the period from [date
disposal site first became disposal site] through the present.
Specify the insurer, policy, effective dates, and state per
occurrence policy limits for each policy. Copies of policies
may be provided in lieu of a narrative response.
#. Provide copies of all financial documents, including
income tax returns sent by you to the federal Internal Revenue
Service arid [the State IRS] in the last five years.
#. Provide copies of financial statements, reports, or
projections prepared by, for or on behalf of the Respondent for
£he past five years, whether audited or unaudited, including,
but.not limited to, all those filed with the Securities and
Exchange Commission, State agencies, and all financial
institutions such as banks.
(FINANCIAL BACKGROUND QUESTIONS FOR ALL CORPORATE PRPS]
#. Identify the parent corporation and all subsidiaries of
R-espondent.
-------
16
ft. Identify all persons who may be responsible for the
liabilities of Respondent arising from or relating to the
release or threatened release of hazardous substances at the
Site, including but not limited to successors and individuals.
#. Provide a copy of the most current Articles of
Incorporation and By-laws of Respondent.
#. Identify the officers, managers and majority shareholders
of Respondent and the nature of their management duties and
amount of shares held, respectively.
#. [For additional PRP questions, see ORC case "attorney.]
FINANCIAL BACKGROUND OUESTIONS FOR PARTNERSHIP. PRPS1
#. Identify all partners comprising [Name of Partnership] and
the nature of their partnership interests.
#. [For additional Partnership PRP questions, see ORC case
attorney.]
[FINANCIAL BACKGROUND.QUESTIONS FOR TRUST PRPS]*
#. Identify all trustees and all beneficiaries of the [Name
of Trust
[For additional Trust PRP questions see ORC case
attorney.]
[CONCLUDING QUESTIONS FOR ALL RPS]
#. If you have reason to believe"that there may be persons
able to provide a more detailed or complete response to any
Question contained herein or who may be able to provide
additional responsive documents, identify such persons and the
additional information or documents that they may have.
#. For each and every Question contained herein, if
information or documents responsive to this Information Request
are not in your possession, custody or control, then identify
the persons from whom such information or documents may be
obtained.
-------
At tachuier
BEFORE THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Add ress:
IN THE MATTER OF:
No .
SUBPOENA DUCES TECyM AND
SUBPOENA AD TESTIFICANDUM
TO:
¦ ; , RESPONDENT(S) :
YOU ARE HEREBY COMMANDED, pursuant to Title. 4.2United States Code,
section 9622(e)(3)(B) [Comprehensive.Environmental Response,
Compensation, and Liability Act section 122(e)(3)(B)] TO APPEAR IN
PERSON at the following place and time.
TIME' AND DATE: ' '
PLACE:
YOU ARE COMMANDED FURTHER TO TESTIFY THEN AND THERE under oath and
GIVE TRUTHFUL ANSWERS to all lawful inquiries and questions 'then
and there put to you on behalf of the United States Environmental
Protection Agency, and TO REMAIN It\F ATTENDANCE until expressly
excused by the attorney(s) conducting the proceeding for the EPA.
YOU ARE COMMANDED FURTHER TO BRING WITH YOU at the time and place
stated above, and then and there produce for inspection and/or
copying, those items identified and described on the ATTACHED
PAGE(S).
NONCOMPLIANCE WITH THIS SUBPOENA MAY SUBJECT YOU TO A CIVIL
ENFORCEMENT ACTION.
Issued at (City, State] this day of , 198
Attorney Contact:
(Asst. Regional Counsel] Regional Administrator, EPA Region
(Address and Telephone)
-------
Attachjne
AFFIDAVIT OF SERVICE
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I hereby certify that being a person over 18 years of ,age, I served
a copy of the attached subpoena:
(check one) ( ) in person
( ) by registered mail
( ) by leaving the copy at the principal place of
business, which is,
( ) by other method:
on the person named on the subpoena on
[date]
signature of
server
name of server
t.i tie
-------
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF
Attachme
IN THE MATTER OF: ) MISC
UNITED STATES of AMERICA, Petitioner
v .
, a . '>
Respondent
PETITION FOR ENFORCEMENT OF AN ADMINISTRATIVE SUBPOENA
ISSUED BY THE ENVIRONMENTAJL PROTECTION AGENCY
The United States of America,. through the Attorney General,
and at the request of the Regional Administrator, United States
Environmental Protection Agency (EPA) Region , hereby petitions
the Court for an Order to Show Cause why the Respondent should not
be ordered to comply forthwith with the administrative subpoena
previously served upon him.
In support of this Petition, the Petitioner alleges as
follows:
1. The Court has jurisdiction over this matter pursuant to
28 U.S.C. §§1331 and 1345, and 42 U.S.C. §9622(e){3)(B) of the
Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended.
2. , the Regional Administrator of Region
of the EPA , [city], (state] has requested tiia£ the Attorney
General commence this action.
-------
2
3. The Respondent. is [snort description,
e.g. "former owner of a waste transporting and disposal business.
Be sure to identify as an owner or corporation.]
4. Section 122(e)(3)(B) of CERCLA, as amended, 42 U.S.C.
9622(e)(3)(B), grants the President the authority to issue
administrative subpoenas to qather information necessary to
implement §122 (Settlements). Siich information includes,
inter alia, the nature and extent of contamination at the site,
possible remedies and the identities of potentially responsible
parties.
5. The President delegated the authority to issue
administrative subpoenas under CERCLA to the AdministratTor of the
EPA on January 23, 1987 by Executive Order 12580 (52 Fed. Reg.
2923, January 29, 1987). This authority was, in turn, delegated
from the Administrator to the Regional Administrators by Delegation
14-6, "Inspections, Sampling, Information Gathering, Subpoenas and
Entry for Response," signed September 13, 1987. (Attached)
6. In conjunction with the investigation at [site], and
pursuant to §122(e)(3)(B) of CERCLA, as amended, 42 U.S.C.
9622(e)(3)(B), Petitioner issued an administrative subpoena on
[date], directing the Respondent to [provide certain information.]
The subpoena is attached and incorporated herein as Exhibit A. An
a'ffidavit of service is attached as Exhibit B.
[7. By letter dated ,• Respondent requested
Petitioner to extend the return date of the subpoena. Respondent's
letter is attached as Exhibit C. )
-------
Cardinal
-------
;5] From: JSArnold 2/4/93 12:11PM (2751 bytes: 37 In)
Po: AAlleri, AAsbell, ADion, AHarriso, AHey, AHeylige, AMadigan, ARobertl, AS iris,
dorf, BDickers, CBaschon, CHiggaso, CMcMenam, CMikalia, CWaterho, CWillis,
C >kur, DErigle, DHarbin, DSavage, DWhitted, EDavis, ENelson, EObensha, FNey,
GnmaOld, GDeliz, GEason, GLuetsch, GWoodard, JBarker, JCartret, JCatrett,
JRedleaf, KDuffiel, KHolman, KRivera, KSmith, KTolbert, KUrbach, LBell, LCrum,
LGross, LGully, LNeville,MArdiff, MButler, MDavis, MEnglish, MGhoah, MGlenn,
MHeath, MJohnson, MKono, MMorris, MNewton, MNichols, MPelej, MRamos, MWaitsma,
MWilkes, NTommell, PBullock, PHarris, PMancusi, POlivier, PRaack, PSchwart,
RBussey, RCaplan, RGlaze, RHeyward, RLeahy, RLlado, RSwinton, SBruckne,
SDavis, SHilton, SMiller, SRubini, SSchub, SSouthal, SWilson, TAtkins,
TBracken, TCornwel, THernand, TKing, VGeorge, VHeard, VMcGe^e, WBush, WCobb,
WLee, WSmithl, ZPryor
object: Witness Appearance Fees
¦ Forwarded 1
'ram: WCobb 2/4/93 9:24AM (1647 bytes: 37 In)
'o: GArnold
ubject: Witness Appearance Fees
— Message Contents
Gwen would you please send this to the_Branch.
Below are listed instructions on how to process witness
appearance fees for persons who are subpoenaed.
1. Prepare a Purchase Order for Lodging. ORC should contact
the hotel and coordinate the lodging arrangements.
'2. Prepare a travel authorization for witness.
3. Make travel arrangements with SATO. The ticket can be
charged to a GTR and mailed to witness, or a prepaid ticket
can be sent to airport convenient to the witness. You will
need to inform Carole Lucius in Finance of the witness'
name.
4. Prepare the TA in advance and have witness sign.
Attorney should review the voucher with witness when they
meet.and make revisions if needed. The attorney should then
cosign the voucher certifying that the witness incurred the
expenses and is entitled to reimbursement.
5. ORC should send the witness a copy of travel documents
with a letter providing additional instructions. (I have a
sample letter in my cube).
In addition to expenses witness is also entitled to a $40
per day witness fee.
I have in my cube the following:
Sample PO
Sample TA
Sample Voucher
Sample letter
Please feel free to come by if you need any of these.
Wilda
-------
MEMORANDUM
DATE: August 13, 1992
SUBJECT: Administrative
FROM: Carole Lucius
Financial' Policy Specialist
TO: Cheryl McMenamin
Instructions for processing administrative subpoenas are given
below. Please consider these interim instructions which may be
revised at a later date.
1. Prepare a Purchase Order for lodging. ORC should contact the
hotel and coordinate the lodging arrangements (See attachment
2. ORC should prepare a travel authorization witness (see
attachment #2).
3. ORC will make transportation arrangements with SATO. The
ticket can be charged to a 6TR and mailed to the witness, or a
prepaid ticket can be sent to the airport convenient to the
witness. You will need to advise me of the name of the witness
so that I can alert SATO to the GTR charge.
4. ORC should prepare the travel voucher in advance and present
same to the witness for signature. The attorney can review the
voucher with the witness when they meet for the deposition and
make any revisions necessary. The attorney will countersign the
voucher certifying that the witness incurred the expenses and is
entitled to the reimbursement. (See attachment #3 for voucher).
5. ORC should send the witness a copy of the travel documents
along with a letter providing additional instructions. (See
attachment #4 for sample letter).
If you have any questions, please call me, Ext 3278.
4 Attachments
1. Sample PO
2. Sample TA
3. Sample Voucher
4. Sample Ltr
#D
-------
[ Date ]
(Name of Witness]
[Address]
Dear [name of witness]:
Enclosed you will find a copy of the travel authorization and
procurement request covering your travel expenses related to your
deposition appearance at [location] on [date and time] in the
matter of [subject].
You should receive your airline ticket in the nail in the next
few days. If for some reason you do not receive your ticket,
please give ne a call at the. number listed below. Under no
circumstances should you pay for your airline ticket with either
your own money or with your credit card.
A room reservation for you has been made at the [name of
hotel] hotel for the night of [date] at the government rate of
[amount]. Because your lodging expenses are to be paid for with a
Government procurement request, room taxes should not be charged by
the hotel. The room reservation is valid up until 5:00 p.m., so
you must check into the hotel by that time. Present to the desk
clerk your copy of the lodging procurement request as payment for
the hotel room. Any personal additional charges associated with
the use of the hotel room (for example room service or placement of
phone calls), are not reimbursable and will be paid at your own
expense.
Upon completion of your appearance at the CPA proceeding on
[date], X will review your travel expenses with you and have you
sign a travel voucher to claim reimbursement for travel expenses,
document reproduction costs, and a witness fee. You are entitled
to a $30/day witness fee for the day(s) on which your deposition
(over)
-------
-2-
vas taken, and to recover any out-of-pocket expenses that you
incurred that vere authorized on the travel authorization^ Please
turn in $11 receipts vith your .travel voucher# including your
airline ticket, hotel receipt, ahd receipt 'for copy charges of
subpoenaed documents.
Please give me a call at [phone number] if you have any
questions.
Sincerely,
Enclosures (2)
(name of attorney]
-------
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asure of OUC attemev
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l j1/01/91
iai
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• totfuaeOrder«*V .
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uat
are the responsibility of [naoe of vit&eps]
to pay, and are not to be billed to EPA;
Please send .bill to:
EPA, REGION IV
ATTN: Financial Management Section
34S Courtland Street
Atlanta, Georgia 30365
.JUSTIFICATION: ...The above-named Individual
feas been Issued an adninietrative mibpoeis
To provide testimony. Telsted Co'lnaae ^f
case] vtiie-h requires an oreraight aCay'."
C0PY1-Pfl0CUR£ME?fT RLECONTKACTOKTOFnCfit
900-8 (R»v. 9-86| Previous odfUons en ofaaototm.
-------
TRAVEL AUTHORIZATION
(Pl*OM* r*H1W . -
A ¦AMINO
C a CANCEL
4. TRAVEL AUTHORIZATION TYPE
*ELSR
•.DATE
| DOMESTIC
2
INVITATIONAL
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INTERGOVERNMENTAL PERSONNE
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7. APPLICABLE REOULATIONSl XI SGTR-S ~ JTRtT
1MB
Jane Witness
SS.TI
'Tft.tness \mder Subpoena
A. OFFICIAL STATION
(Residence)
• ¦.OHi
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to. TRIP INFORMATION
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lA. ACCOUNT NUMBER
t
C. SERVICING
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OA
o. itinerary. run rose, and other detail*, ^
FROM: (Residence) & Return
TO: Atlanta, Georgia
Case No. & Name:
Attorney Name:
PURPOSE: Witness expenses associated with an administrative subpoena appearance
in Atlanta. Common carrier by GTR. Hotel authorized under separate Purchase Order
MTM.TH mo .i.«.«.lT.n »¦ ¦nx.i.fw
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TOTAL COST KSTIMATU BY
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El. COMMERCIAL CAR RENTAL.
I
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INTERCITY ~ TEMPORARY DUTY
F1. COVERNMEHT-OWNED (OSA) RENTAL- SO AC «j
S I. REGISTRATION PECS
D INTERCITY D TCMPORAHY DUTY
|D INTERCITY D TEMPORARY DUTY
(PERMANENT CHANGE-OP-STATION ALLOWANCES)
Ml. TRANSPORTATION OP FAMILY
KL RESIDENCE HUNTING
(El St IS
(6) SS44
tl.TEMPORARY QUARTERS
IX. REAL ESTATE EXPENSES
.** Include $30 Witness Fee and §60
Document copying charges in 0C 2117
IS. MISCELLANEOUS MOVING EXPENSES
HI It"
¦ I. SHIPMENT OP HOUSEHOLD COODS
(it xats
XI. ITORAGE Or HOUSEHOLD COODS
(K) USO
TOTAL
"h aOYANCEOP FUNDS APPLICATION (Not*: OubtnuUnf adoanot* mutt bt tteuiSattd uttfdn JO day* ofcompUUoa of trip. Whin travel U eanctUd or
" " """ - fdlmmtdiatsiy. VnUtivldalrd advance* arm rubjtct to automatic payroll
^MUtyportyontd, t/ufua amount of any outitanding odoaieat mu»t ba rtpaldl
C. MAIL CHECK TOi ~ OFFICE O HOME
A.TTK
. S ORDINARY
O CONTINUING
^.AMOUNT .
I.METHOO OF
PAYMENT
~ CASH
~ CHECK
E. SIGNATURE OF~ APPLICANT
ADDRESS
'.CASH RECEIVED BY
O. DATE CASH RECEIVED
14. TO SE COMPLETED SY SERVICING FINANCE OFFICE
O .woniirn 11 nuiPMtnlire
SIGNATURE (AJuS l
i for iitapproval, if to chtcktd)
l.AUTMB».T.TInN
Z^^^^uESaSSSBucxZ.
AUTtlt
nzazzaocEZs:
LAME ANO TITLE (
Authority f* grsntsd to tnvsi sod Incur such sxpsnsst s* mty bs nscemry for Ihh suth-
odzsttoci bi sooordsnes wtth EPA policy snd sppltcsbt* r#eul*tion*. I cortlfy that thh
trto h casmtel to itw Awpc^! mtaton
name AND TITLE ITrpiii)
Regional Couns'el or Travel Authorizing Officer
SIGNATURE
'A Form 2810-1 (Rpr. 10-81] Pravtou* adttlon to ob*ol«M.
TPAVFI PR
-------
TRAVEL VOUCHER
(Rtto' (h* PrivkCf Act
Sutemtnt on the bock)
i. department or ESTABLISHMENT.
BUREAU DIVISION OK OFFICE
ADMINISTRATIVE SUBPOENA
1. WElf TRAVEL
Q TEMPORARY OUT*
~PERMANENTCHANCE
OFSTATION
3- VOUCHER NO.
BCHEDULENO.
6'
I
NAME ((.ml. fmi. mitiWt initiol)
Vitneas* Joe
t. SOCIAL SECURITY MO.
Leave blank
. PERlODOF TRAVE L
L PROM
.11/01/91
It. TO
J1/02/91
MAILING ADDRESS Unctut* ZiP Coorl
«. OFFICE TELEPHONE NO.
Bone phone i
(916) 000-0000
TRAVEL AUTHORISATION
k. WMItNltl b. DATE IS I
noN
S/A
t. RESIDENCE (Qtrmasmbl
T2841165
10/10/91
10. CHECK MO.
a. TRAVEL ADVANCE
m. Ovrondini
>¦ CASH PAYMENT RECEIPT
11. PAID-BY
». DATE RECEIVED
k. Amount to M ooplioo
t>. AMOUNT RECEIVED
a
t. Amovm tfiM Oo«arnm«nt
. (Atuchoi: ~ One* ~ Cmt»
1*. GOVERNMENT
TRANSPORTATION
REOUESTS.OR
TRANSPORTATION
TICKETS. IF PUR-
CHASED WlTM CASH
ILift br b*IO*
orttnoch fi*iunftr .
coupon; if can a vwtf
tfiomr e(*t'm on mm
tk*t
I i© itit Uniltd Suit* »"r right | rruy ten *g«intt •** pt'im in connection wiiti t»imhufwb<* ^ Trmrtltr'i Initit/t
trtnoerutien ch*'gn dtienMd 6* low.purc»i»<»tf una*' Clth ptymtni P'OCtdwn IfPWW 101-71 VitneSB* B
AGENT'S
VALUATION
OF TICKET
M
ISSUING
CAR-
RIER
(Initioll)
fb)
U&DE.
CLASS OF
SERVICE
AND ACCOM-
MODATIONS
Iit
OATE -
ISSUED
(d!
POINTS OF'
initials
FROM
(*!
TO
10
GTR
Case Name an
"trtlficatio i
*
Uumber:
: "2 certi
indicate!
and travi
y thai
and
1".
the vitt
s entitli
ess naned al ove attended In thi case or ostter
d to the sti tutcry allovances lor attendance
EPA at
orney signature am
date.
13. I etrtifv WW tFtn vouch*' a irut »«d co'ftct t» 1H* bUl of my knowlttfp* 0»0 b*li»l,*nd lh*t ptrmant o> C«d<« not been
eeerwed bv m*. When appiici&it. P«r d>em claimed it biuti en f>» ivtrtgf eott of lodging ineu"ed dwing the period covered by
ttlrt vouCHer.
TRAVEL! Rw tOATC ,./n,/al AMOUNT.
aiONHERE^ Signature of Joe Vitness | 11/02/91 CLAIMED^
144 {op
MQT£: ftHittctuon of an intn in on tip* nit account mrorkt * forfeinirt ofeitim tit U.SC. 2SH1 ongmsr mult in o fin* of not mort'
Man 916.000 or impriionmtnt fo> not mot ttion 8 r"l (19 U.S.C 9$/; CO. 100}I.
•4. T#i« voucher fc approved. Long dittence ititphone e*ili, If »nr, »ff eenil»ed «
Mcwiri in the inttrnt 0' th« Government. (NO T£: tf/ong Oitttnet nftpAono fits
Oft incfitdrtf, tfit opptoting offkiaf mutt Aav« botn outhorittd in writing br (ft#
tooof of Ox ApiimnivifMcr to to ctrtify (311/.X.C 990o)J
AWROVINC I OATE
SIGNHERE^ Attorney*s Section Chief ( 11/03/91
If. fO* FINANCE OFHC£ USC ONLY
COMPUTATION
DIFFER'
SNCEt. '
IF ANY "
(trptoin _
OnO thorn
Omountf -
.'»• VAST FRECEDING VOUCHER PAID UNDER SAME TRAVEL AUTHORIZATION
i. VOUCHER NO.
b. e.O.SYMIOL
t. month*
YEAR
•- THIS VOUCHER IS CERTIFIED CORRECT AND PROPER FOR PAYMENT
». TOTAL VERIFIED CORRECT FOR
CKARSE TO A'PRDFRIATION
Cartifttr"! fnitiah:
travIl AbvANCI
iltthorizeo
-ERTIFYING
official
(Appropriation trmOolJ:
1 OATS-
,r rihlAb . A I
ignhere ~ CoTitptroller Certifvine Official 11/04/91
NET TO TRAVELER ~
*- AMOUNTING CLASSIFICATION
13
STAMDARD FORM 1012
-------
! DULE
Or
EXPENSES
AND
AMOUNTS
CLAIMED
INSTRUCTIONS TO TRAVELER (UnHttertiterm
tret
Htaryl
Cot. M " «oocKct Mhm
pe* diet* Xiomiufi tor
iwwiNtl of employ**^
Immediate temtt*. tSow
and retaf lonthip to em.
ptovte 1*4 TOllit fllNM
of tMHtw ftmleti Infer,
•nation H |So«m on Iht
|IM) Nlho(ltltioi).l
Com.
ptttr
MV
fo'
uetvtt
tupente
t>mi
CM Ul I $ -v *» Incurred tor nct> meal. Including It* and llpt, and tffllT total
Ihrv tt* I mil com
(W Show eitwwi. tuth a» tounrfry. cleaning and prmhtg ot tlolhti, tHw to bellboy I.
imiim, ttt Inllwt fhjm to* nwilil,
fit Comnifi' to* i»t rf«m and actual enptme travel.
to Shim total tolwiiw wpfmf mctmeri lor actual npmt travel.
W Show pv itwm anwunt, limited to nuaimum fate, OI it irevH on actual (nmiftiNm
the lett" ot the amount from cot l»l or mammutn rale.
M SNnw r*nrmn. tuth »t tin/lmoviiw late), air fare lil wrtMnrf mlik'aiM, local or
ion? rfittance telephone cai'i tor Government hut men, car rental, relocation othet than
fuhtltence, etc.
SfcLnJ* MOt
IfltthHt —1
nnt*wijorc viA cab
1
1
I
1
1
1
1
1
1
1
•
\
•
1
i
11/0
3:00pi
i Witness arrives at hot
el!
1
1
¦
1
I
f
1
«
1
•
1
1
1
5 f
from airport via lino
1
1
1
*
1
>
1
1
I
I
1
1
1
1
<
1
•
11/0
4:00pn
- Witness appears at
1
1
1
ft
1
1
1
•
1
1
•
1
1
1
30 jo
8:00pt
.EPA proceeding
1
1
1
I
1
1
1
t
1
i
1
1
1 *A
1
•
60 [O
i
11/02
7i00an
Witness leaves hotel
1
1
1
1
1
»
I
1
1
1
i
1 J
1
•
1
1
1
1
5(?0
for airport via limo
s
1
•
1
1
*
1
•
1
1
1
i
1
1
1
1
1
1
f
11/02
9:00ar
V
Witness arrives at
1
1
;««
/dafe f
jr l!/2
day!- 1
17 J
17 loO
1
1
.17!oo
sio
residence vi« cab
\
1
i
1
1
—^
1
1
1
1
I
1
1
/ I
i
i
* Wlt-nann jmnonrnnro 1
ppiM
^ 1
rinvi nf
fjl/rf
jvl {
1
1
1
1
•
i
i
** Document copying che
rgas <
i
suttpoe
I
naetl d
1
jcunent
1
s) 1
1
1
1
I
1
- ¦
a
: i
i
\
SUBTOTALS >>
•
it Kiaitiornl lpace (t requftad. contlmie en tnottm SF 1012-* BACK, testing the front btink.
TOTALS >
1
31.
I O t!6W of July 77. 19M, C.O. 11013 of Wnth 77, im. I.O 999? o*
7?. 1943, ifid 76 U.S.C. tQtttbl M 6109, Thi Dtbnify pv'DOfl
q( Ihi rtanrtNif JnlormrtiOfi H to tfrlnmlM ptvmmt o* ftMiwumtnt to
riiehlt mlrtl<'»ll Oh W#irf
M, brtowadtn tttm IJon |M front o!
tflrtfomt.
TOTAL
AMOUNT
CLAIMED*
$144.00
•uswrMmnMMtffatif
rnnM mww* mo-?**
-------
-------
FOIA
-------
Cardinal
-------
Freedom of Information Act Manual
1550
05/04/92
APPENDIX I
SAMPLE LETTERS/MEMORANDA
PAGE
A. Response to Request for Future
Records 1-1
B. Clarifying a Vague or Overly
Broad Request 1-2
C. Notification that Records Can Not
be Obtained Promptly 1-3
D. Notification that Records are
Available for Sale Elsewhere 1-4
E. Notification that Records Do
Not Exist 1-5
F. Notification that Records are
Possessed by another Federal
Agency or Delegated State 1-6
G. Request for Payment Owed on
Earlier Request 1-7
H. Request for Prepayment 1-8
I. Request for Fee Waiver Justification 1-9
J. Denial of Public Interest Fee
Waiver Request 1-11
K. Request for Refund Memo 1-12
L. Extension gf 10-Day Time Limit 1-13
M. Release Letter with Records 1-14
N. Release Letter without Records 1-15
o. Denial Letter 1-16
P. Partial Denial Letter 1-17
Q. Request for Substantiation from
an Affected Business 1-18
R. Initial Denial Bas*» on Clai'n of Business
Confidentiality 1-21
-------
Freedom of Information Act Manual
1550
05/04/92
SAMPLE LETTER A
RESPONSE TO REQUEST FOR FUTURE RECORDS
(stamp date)
Re: Freedom of Information Act Request RIN
Dear Mr./Mrs./Ms. (name of requester)i
This is in response to your Freedom of Information Act
request of (date of request). regarding (nature of request).
The Freedom of Information Act does not require EPA to place
a requester's name on a distribution list for automatic receipt
of certain kinds of records as they become available. The Act
only establishes requirements for disclosure of existing records.
However, you may submit future requests under the Freedom of
Information Act, if you desire to ascertain whether such records
have been created and are available. Any such letter(s) should
reference the period of time for which records are being
requested.
Sincerely,
Signature and Title
bee: Agency or Regional FOI Office (2)
FOI Coordinator (if appropriate)
i-i
-------
Freedom of Information Act Manual
1550
05/04/92
SAMPLE LETTER C
NOTIFYING REQUESTER THAT RECORDS CANNOT BE OBTAINED PROMPTLY
(stamp date)
Re: Freedom of Information Act Request RIN
Dear Mr./Mrs./Ms. (name-of requester!:
This letter concerns your Freedom of Information Act request
of (date of request). regarding (nature of request).
I wish to advise you that we have not been able to obtain
the record(s) you requested due to treason for delay). We are
making every effort to obtain the record(s) and hope to complete
our response to you by (projected date of release).
I regret the inconvenience this may have caused. Please
contact (name of employee) of this office at (telephone) if you
have any questions.
Sincerely,
Signature and Title
bcc: Agency or Regional FOI Office (2)
FOI Coordinator (if appropriate)
1-3
-------
Freedom of Information Act Manual
1550
05/04/92
SAMPLE LETTER E
NOTIFICATION THAT RECORDS DO MOT EXIST
(stamp date)
Re: Freedom of Information Act Request RIN
Dear Mr./Mrs./Ms. fname of requester);
This is in response to your Freedom of Information Act
request of (date of request).
I wish to advise you that the Agency has no records
responsive to your request. If you consider this response to be
a denial, you may appeal it by addressing your written appeal to
the Freedom of Information Officer (A-101), United States
Environmental Protection Agency, 401 M. Street, S.W., Washington,
DC. 20460.
Sincerely,
Signature and Title
bcc: Agency or Regional FOI Office (2)
FOI Coordinator (if appropriate)
1-5
-------
Freedom of Information Act Manual
1550
05/04/92
SAMPLE LETTER O
REQUEST FOR PAYMENT OWED OM EARLIER REQUEST
(stamp date)
Re: Freedom of Information Act Request RIN (RIN number of
request on which payment is still due)
Dear Mr./Mrs./Ms. (name .of requester):
We have received your letter of (date) requesting
information from the Environmental Protection Agency (EPA) under
the Freedom of Information Act. A review of our records
indicates that you made another request that was assigned Request
Identification Number RIN (number of request on which payment is
still due). You were billed (amount) by EPA for costs related to
processing that request. Attached is a copy of the Bill for
Collection sent to you at that time requesting payment. There is
no indication in our records that you have paid the amount due.
Pursuant to 40 CFR 2.120(e), we will not process your
current request until you pay the amount due on your earlier
request or furnish proof (in the form of a receipt or cancelled
check) that the bill was paid.
Please make your check or money order payable to the U.S.
Environmental Protection Agency, refer to the RIN number
indicated above, and" attach the top portion of the enclosed Bill
for Collection.
Sincerely,
Signature and Title
Enclosure
bcc: Financial Management Division
-------
Freedom of Information Act Manual
1550
05/04/92
SAMPLE LETTER I
FEE WAIVER JUSTIFICATION LETTER
(stamp date)
Re: Freedom of Information Act Request
Dear Mr./Mrs./Ms. (name of requester):
Your Freedom of Information Act request did not contain
sufficient information to enable the Agency to make a
determination on your fee waiver request.
The Freedom of Information Reform Act of 1986 provides that
"Documents shall be furnished without any charge or at a charge
reduced below the fees established under clause (ii) if
disclosure of the information is in the public interest because
it is likely to contribute significantly to public understanding
of the operations or activities of the government and is not
primarily in the commercial interest of the requester." In order
to evaluate whether the statutory standard authorizing a fee
waiver or reduction has been met, we will need additional
information upon which to base our determination. Your response
should include:
(i) A clear statement of your interest in the
requested documents, the use proposed for the
documents and whether you will derive income
or other benefit from such use;
a statement of how the public will benefit
from such use and from the release of the
requested documents;
if specialized use of the documents or
information is contemplated, a statement of
your qualifications that are relevant to the
specialized use;
a statement indicating how you plan to
disseminate the documents or information to
the public;
and additional information you deem relevant
to your request for a fee waiver.
(ii)
(iii)
(iv)
(v)
1-9
-------
Freedom of Information Act Manual
1550
05/04/92
SAMPLE LETTER J
LANGUAGE FOR ?EE WAIVER/REDUCTION DENIAL
The following provides some guidance concern-
ing what wording should be used in release, partial
release and discretionary release letters that also
acknowledge a fee waiver/reduction denial.
. The statutory test for evaluating fee waiver requests is
whether release of the information "is in the public interest
because it is likely to contribute significantly to public
understanding of the operations or activities of the government
and is not primarily in the commercial interest of the
requester." I have considered six factors in determining whether
your request satisfies this statutory standard: (1) whether the
subject of the requested records concerns the operations or
activities of the government; (2) whether the disclosure is
likely to contribute to an understanding of government operations
or activities; (3) whether disclosure of the requested
information will contribute to the understanding of the general
public; (4) whether the disclosure is likely to contribute
"significantly" to public understanding of government operations
and activities; (5) whether you have a commercial interest that
would be furthered by the requested disclosure; and (6) whether
any such commercial interest outweighs the public interest in
disclosure.
On the basis of all of the information available to me I
have concluded that your fee waiver request (or a portion of your
fee waiver request) must be denied because (state the basis for
denying the fee waiver for all or part of the requested records).
If you desire to appeal this fee waiver (or reduction) denial,
you should submit a written appeal to the Agency's Freedom of
Information Officer1, A-101, U. S. Environmental Protection
Agency, 401 M Street, SW, Washington, DC 20460. Any appeal
should refer to the Request Identification Number listed above,
the date of this determination, and my name, title and address
(or the name, title and address of the person directing issuance
of the denial).
1-11
-------
Freedom of Information Act Manual
1550
05/04/92
SAMPLE LETTER L
EXTENSION OF TEN-DAY TIME LIMIT
(stamp date)
Re: Freedom of Information Act Request RIN
Dear Mr./Mrs./Ms. /name of requester):
This is in response to your Freedom of Information Act
request of (date of request). An extension of the time required
to comply with your request is necessary.
The reason for the extension is (are):
The need to search for and collect the requested
records from offices that are physically distant
from this office. (40 CFR 2.112(e)(1))
The need to search for, collect, and
appropriately examine a voluminous amount of
separate and distinct records involved in
your request. (40 CFR 2.112(e)(2))
The need for consultation, which shall be
conducted with all practicable speed, with another
agency or EPA office having a substantial subject-
matter interest in your request. (40 CFR
2.112(e)(3))
An initial determination is expected by (date of expected
determination).
Sincerely,
Signature and Title
bcc: Agency or Regional FOI Office (2)
FOI Coordinator (if appropriate)
~
~
~
1-13
-------
Freedom of Information Act Manual
1550
05/04/92
SAMPLE LETTER N
RELEASE LETTER WITHOUT RECORDS
(stamp date)
Re: Freedom of Information Act Request RIN
Dear Mr./Mrs./Ms. (name of requester):
This is in response to your Freedom of Information Act
request of frequest date!. regarding inature of request).
My office has determined that the record(s) you requested
can be released under the Freedom of Information Act. We are
currently copying the information you requested and will forward
it to you (along with an itemized invoice covering the charges
for processing your request by (estimated date of completion).
Sincerely,
Signature and Title
bcc: Agency or Regional FOI Office (2)
FOI Coordinator (if appropriate)
1-15
-------
Freedom of Information Act: Manual
1550
05/04/92
SAMPLE LETTER P
PARTIAL DENIAL LETTER
(stamp date)
Re: Freedom of Information Act Request RIN
Dear Mr./Mrs./Ms. (name of requester):
This is in response to your Freedom of Information Act
request regarding fnature of request).
Enclosed you will find copies of some of the documents
responsive to your request.
We are unable to provide you with the documents, or portions
of documents, which have been determined to be exempt from
mandatory disclosure by virtue of 5 U.S.C. 552(b) (cite exemption
or exemptions). An itemized list by categories of the withheld
material along with the basis for withholding is provided on the
enclosure to this letter.
You may appeal this partial denial by submitting a written
appeal to the Freedom of Information Officer (A-101), United
States Environmental Protection Agency, 401 M Street, S.W.,
Washington, D.C. 20460, within 30 days of receipt of this partial
denial. Your appeal should refer to the RIN number listed above,
the date of this determination, and my name, title and address
(or the name, title and address of the person directing issuance
of the partial denial).
Please contact ( ) at ( ) , should you
have any questions concerning this matter.
Sincerely,
Signature and Title
(Division Director Level or Above)
Enclosures: (index of documents released and withheld)
bcc: Agency or Regional FOI Office (2)
FOI Coordinator (if appropriate)
1-17
-------
Freedom of Information Act Manual
1550
05/4)4/92
2. Information submitted to EPA becomes stale over time.
Why should the. information you claim as confidential be
protected for the time period specified in your answer
to question #1?
3. What measures have you taken to protect the information
claimed as confidential? Have you disclosed the
information to anyone other than a governmental body or
someone who is bound by an agreement not to disclose
the information further? If so, why should the
information still be considered confidential?
4. Has any governmental body made a determination as to
the confidentiality of the information? If so, please
attach a copy of the determination.
5. Is the information contained in any publicly available
material such as promotional publications, annual
reports, articles, etc.? Is there any means by which a
member of the public could obtain access to the
information?
6. For each category of information claimed as
confidential, discuss with specificity why release of
the information is likely to cause substantial harm to
your competitive position. Explain the nature of those
harmful effects, why they should be viewed as
substantial, and the causal relationship between
disclosure and such harmful effects. How could your
competitors make use of this information to your
detriment?
7. Do you assert that the information is "voluntarily
submitted" as defined at 40 CFR sec. 2.201(i)? If so,
explain why,, and how disclosure would tend to lessen
EPA's ability to obtain similar information in the
future.
8. Any other issue you deem relevant.
Please note that vou bear the burden of substantiating your
confidentiality claim pursuant to 40 C.F.R. 2.208(e). Conclusory
allegations will be given little or no weight in the determi-
nation. If you wish to claim any of the information in your
response as confidential, you must mark the response
"CONFIDENTIAL" or with a similar designation, and must bracket
all text so claimed. Information so designated will be disclosed
1-19
-------
Freedom of Information Act Manual
1550
05/04/92
SAMPLE LETTER R
INITIAL DENIAL BASED ON CLAIM OF BUSINESS CONFIDENTIALITY
(stamp date)
Re: Freedom of Information Act Request RIN
Dear Mr./Mrs./Ms. I name of requester1:
This is in response to your request of (request date) in
which you requested (describe the requested records). I have
determmned that the records in question have been claimed
confidential and may contain trade secrets or commercial or
financial infonnation which is exempt from disclosure under 5
U.S.C. 552(b)(4). Pursuant to 40 C.F.R. 2.204(d)(1), your request
is being initially denied because further inquiry by EPA is
required before a final determination can be made. We will
consult with the third party(ies) in connection with their
business confidentiality claim(s) covering these records and (the
appropriate EPA legal office) will issue a final confidentiality
determination.
You may appeal this initial denial of your request by
writing to the Freedom of Information Officer, A-101, U.S.
Environmental Protection Agency, 401 M Street, S.W., Washington,
D.C. 20460. Any appeal must be made within 30 days after your
receipt of this initial denial. A final confidentiality
determination will be made by the (appropriate EPA legal office)
whether or not you file an appeal, and you will be notified of
the final determination.
You should refer to RIN in any further
correspondence concerning this matter. Please contact ( )
at ( ) if you "have any questions.
Sincerely,
Signature and Title
bcc: Agency or Regional FOI Office (2)
FOI Coordinator (if appropriate)
1-21
-------
Cardinal
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
JAN 8 1993
OFFICE OF
SOLIO waste and EMERGENCY response
MEMORANDUM
SUBJECT:
FROM:
TO:
On January 5, 1993, EPA issued an Interim Rule in the
Federal Register addressing the disclosure of confidential data
to authorized representatives of the United States and to
potentially responsible parties (PRP) in the Superfund program,
A copy of the Interim Rule is attached for your information.
The Interim Rule modifies certain portions of 40 CFR Part 2-
Public Information, governing confidential business information.
The Rule updates statutory references to CERCLA and corrects
certain citations to CERCLA and the Clean Air Act. In addition,
and most importantly, the1-Rule authorizes disclosure of
confidential data submitted by contractors, pursuant to CERCLA
§104, to authorized representatives of the United States
(including EPA contractors and subcontractors) and to PRPs in
CERCLA §107 actions for cost recovery under certain conditions.
The Rule also authorizes disclosure of confidential data to
contractors pf other federal agencies.
The Rule is effective immediately. OWPE, Office of
Enforcement-Superfund, and Office of General Counsel are
cooperating in the preparation of implementation guidance
concerning the Rule. The current schedule for issuing this
guidance is late February, 1993.
Attachment
cc: Cost Recovery Program Contacts, Regions I - X
Cost Recc. /ery ORC' Contacts, Regions I - X
Cost Recovery Contacts, Finance Office, Regions I - X
Ika Joiner, SRO
Bill Cooke, FMD
John. Fogarty, OE
Don Sadowsky, OGC
Issuance of Interim Rule: "Disclosure of Confidential
Data to Authorized Representatives of the United States
and Potentially Responsible Parties." 58 Fed. Reg. 458-
465, January 5, 1993 (40 CFR Part 2).
Francis J.„Biros, Chief
Cost Recovery Branch, OWPE
CERCLA Branch Chiefs, Regions I - X
Printed on Recyctec P-.-.c
-------
Tuesday
January 5, 1993
Part VI
Environmental
Protection Agency
40 CFR Part 2
Disclosure of Confidential Data; Interim
Rule
-------
458 Federal Register / Vol. 58. No. 2 / Tuesday, January 5, 1993 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 2
[FRL—4552-1]
Disclosure of Confidential Data to
Authorized Representatives of the
United States and to Potentially,
Responsible Parties
AGENCY: Environmental Protection
Agency.
ACTION: Interim rule with request for
comments.
Summary: The Environmental Protection
Agency {EPA) is issuing interim
regulations modifying certain of EPA's
regulations at 40 CFR part 2, subpart B
governing confidential business
information. This rule updates statutory
references to the Comprehensive
Environmental Response.
Compensation, and Liability Act
(CERCLA) pursuant to changes made by
the Superfund Amendments and
Reauthorization Act of 1986. corrects
erroneous citations to CERCLA and the
Clean Air Act (CAA) in these
regulations, authorizes disclosure of
confidential data submitted by
contractors, pursuant to CERCLA
section 104. to authorized
representatives of the United States and
to potentially responsible parties (PRPs)
in actions nnder CERdA section 107
for recovery of EPA's response costs,
and authorizes disclosure of
confidential data to contractors of other
Federal agencies.
OATES: This rule » effective January 5.
1993. Comments will be accepted until
March 8.1993.
AOORESSES: Send or deliver written
comments to Donald A. Sadowsky,
Contracts. Information General Law
Division (LE-132K), Office of General
Counsel. Environmental Protection
Agency. 401 M Street. SW.. Washington.
DC 24060.
FOR FURTHER INFORMATION CONTACT:
Donald A. Sadowsky. Office of General
Counsel. Telephone 202/260-5469.
SUPPLEMENTARY INFORMATION: '
On May 20.1975. EPA published in
the Federal Register (40 FR 21987) a
proposed rule concerning procedures
for the treatment of confidential
business information (CBI) submitted
under various environmental statutes,
including the Clean Air Act (CAA). 42
U.S.C. 7^01 et seq. This rule was made
final on September 1.1976 (41 FR
36902). codified as 40 CFR part 2.
subpart B.
On December 18.1985, EFA
published in the Federal Register (50
FR 51654) a rule establishing
procedures for the treatment of
confidential business information (CBI)
submitted pursuant to action 104 of the
Comprehensive Environmental
Resp jnse, Compensation, and Liability
Act (CERCLA). 42 U.S.C. 9604. This rule
was codified as 40 CFR 2.310.
A. Information Collected Pursuant to
Sections 115 and 211 of the Clean Air
Act
EPA's special rules governing CBI
submitted pursuant to the Clean Air Act
are codified at 40 CFR 2.301. Paragraph
(B)(6) of § 2.301 provides that § 2.301
does not apply to information obtained „
under section 115(j) or 211(b) of the
Clean Air Act. 42 U.S.C 7415{j) or
7545(b). Both statutory references aire ;
inappropriate, and paragraph (b)(6) will
therefore be eliminated, for the.
following reasons. *
First, section 115(j) is no longer a part
of the Clean Air Act. Second. EPA's
intent with respect to section 211 was
to effectuate tta section's limitation on
CBI claims for results of health and
safety tests on fuels and additives
performed pursuant to section -
211(b)(2)(A). However. 40 CFR
2.30(b)(6) ascurrendy written exempts
information submitted under any part of
section 211(b) from § 2.301 coverage.
EPA is hereby correcting the regulation
by eliminating paragraph (b)(6) and
modifying § 2 JOlfe) (Substantive
Criteria far Use la Confidentiality
Determinations) to make clear that
section 21l(bM2)tA) information is not
entitled to confidential treatment.
B. Disclosure to Contracts of Other
Federal Agencies
Under sections 114, 208 and 307(a) of
the Clean Air Act (42 U.S.C 7414. 7542.
and 7607). sections 308 and 509(a) of
the Clean Water Act (33 U.S.C 1318.
and 1369(a)), 1445(d) of the Safe
Drinking Water Act (42 U.S.C 3O0j—«).
sections 3001(b)(3)(B). 3007(b). and
9005(b) of the Solid Waste Disposal Act
(42 U.S.C 6921(b)(3)(B). 6927(b). and
6995(b)). and section 104(e)(7) of the
Comprehensive Environmental
Response. Compensation, and Liability
Act. 42 U.S.C 9604(e)(7). EPA may
disclose CBI to authorized
representatives of the United States.
Similarly, under section 10(e) of the
Federal Insecticide. Fungicide, and
Rodenticide Act (7 U.S.C. 136h(e)) and
section 14(a)(2) of the Toxic Substances ,
Control Act (15 U.S.C 2613(a)(2j) EPA
may disclose CBI to contractors with the
United States.
Although Congress did not require
,viat contractors which are authorized
representatives of the United States
have a direct contractual relationship
with EPA, the Agency so chose to limit
its authority when it first proposed and
promulgated regulations governing
disclosure of CBI to contractors. See 40
FR 21990. 40 CFR 2.301(h)(2)(i). At the
time it was not contemplated that there
would be occasion to disclose CBI to
contractors of other Federal agencies.
(Special provision was later made in 40
CFR 2.306(j)(l) for disclosure to
contractors of other agencies of CBI
submitted pursuant to the Toxic
Substances Control Act.)
Hnwfivr, the Afjanr-y mny fjnH in \
the interests nf th<» fV>Yprr"T"*n> ft vrntgr\
into aTKinflPmpntc with annilmiTl'lll'l ll
agency where a contractor of that agency
performs work to support the mission of
Having clear authority to allow
such access. ti'A is hereby amending it^
le^ulatiuiis au.0lrdii)g]y. ~ " '
C Information Obtained From
Superfund Contractors
I. Applicability of 40 CFR 2.310
In the preamble to the rule
promulgating 40 CFR^31^ the Agency
stated that § 2.310 was1 intended to be
"applicable to information obtained
under any provision of section 104 of
(CERCLA)." 50 FR 51656. However, the
rule as written did not apply to all
Information suhmltted under section
104. The rule applied "only to
Information provided to or obtained by
D*A under section 104 of (CERCLA). 42
U.S.C. 9604, by or from any person who
stores, treats, or disposes of hazardous
wastes; or where necessary to ascertain
iocts not available at the facility where
such hazardous substances are located,
by or from any person who generates,
transports, or. otherwise handles or has
bandied hazardous substances." 40 CFR
2.310(b).
Section_2.310 as written does not
cover contractor lntormation submitted
pursuant to secuon 1U4. Section
104i!a)llj authorizes kpA, inter alia, to
respond to hazardous conditions at
Superfund sites. In particular, the
-Government "is authorized to act,
consistent with the national
contingency plan, to remove or arrange
for the removal of. and provide for
remedial action relating to" hazardous
substances at a site. CERCLA section
104(a)(1). 42 U.S.C 9603(a)(1). The
language in section 104(a)(1) ("remove
or arrange for the removal"; "provide for
remedial action") serves as authority for
the Agency to enter into contracts for
removal and remediation.
"Removal" is defined in CERCLA
section 101(23) to include not only
cleanup or removal of released
hazardous substances" but also "such
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Federal Register / Vol. 58, No. 2 / Tuesday. January 5. 1993 / Rules and Regulations
459
actions as may be necessary to monitor,
nssess. and evaluate the release or threat
of relea t of hazardous substances."
"Remedial action" is defined in section
101(241 to include "those actions
consistent with the permanent remedy
t.iken" and "any monitoring reasonably
required to assure that such actions
protect the public health and welfare
and the environment." Moreover,
removal and remedial actions includ
related enforcement activities. CERCLA
section 101(25). Thus, "removal" and
"remedial action" are defined broadly
enough to include all contracts at issue,
ami information submitted to EPA
pursuant to these contracts constitutes
information submitted under CERCLA
suction 104.
Therefore EPA is today modifyin|j_41i.
CFR 2.310 to effectuate the original.— '
intent e: the Agency, i.e.. to make the
rule applicable to all information ~
~iilirni::-c under CERCLA sectiac_IQ4.
> Uisr.'rs jra to Authorized
Ucprrs-: rtatives
Icforrr.jtion obtained by the Agency
under CERCLA section-104 may be
disclosed to authorized representatives
of the United States. CERCLA section
104(e)(7). EPA regulations at 40 CFR
Z..T10(hj define authorized
representative to include Agency
contractors and subcontractors. Thus,
. this arnendment to 40 CFR 2.310 makes
dear t hdTconfideieihiattor* from
tTSuperfund contractor may be
d;sc7icsedroBnOthef"AgHTrc5rcontrar.tor
EfA recogn:zes"tivarlnSiTir.aTi<3n
submitted to the Agency by its
contractors can be of potential value to
other businesses competing for contracts
with EPA. other agencies, or the private
sector. Contractors typically assert that
information-pertaining to costs such as
lahc-r. c-.erhead and profit rales are
entitled to confidential treatment
because release of this information to
the public would allow competitors to
underbid that contractor in future
procurements. EPA has generally
accorded confidential treatment to these
rates where public release of the
information is likely to cause substantial
competitive harm.
The Agency does not intend to
disclose to the public sensitive
information obtained from a contractor.
However, the Agency needs to utilize
."authorized representatives to support
various functions involved in the
adminisiration of GERCLA and which
involve access to contractor CB1; such as
rt-curris management, data processing,
cost recovery.
!>i- disclosing to an authorized
trpresen-Jtive information obtained
i".-i?. S-.:3erfund contractor. EPA does
not compromise the confidentiality of
the information. 40 CFR 2.310(h)
provides pr , ;pi:nrpg frir pose ol cqrry-.ng out the
v5ork required by the contract nr.
sTibcflUtract:"
yh^Thu employees of the contractor or
subcontractor.shall refrain from
disclosing the information to anyone
other than El'A (or another Federal
agency, as appropriate) without prior
written approval of each affected
bujiucss or of an EPA legal office:
<
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Federal Register / Vol. 58, No. 2 / Tuesday. January 5. 1993 / Rules and Regulations
in obtaining expeditious cost recovery
settlements.
This regulation amends 40 CFR 2.310
to provide for limited releases of CBf to
responsible parties under a contractual
agreement in pre-litigation negotiations
and under a stipulation and protective
order during litigation. Generally, EPA
would make a limited release to
responsible parties of all CBt ~
information maintained by EPA
pursuant to 40 CFR 300.160 of the
national contingency plan. This limited
disclosure would be made without the
prior consent of the contractors and
applies to documents submitted to EPA
since the inception of the Superfi:nd
program in 1980.
The basis for this regulation is found
' in Section 104 of CTRCLA. and
promulgation of the regulation will
assist EPA in implementing Sections
107 and 122 of the Act. Section IU7
authorizes the recovery of federal casts
expended on site cleanups financed by
the Superfund. If the Agency elects to
pursue these costs through litigation.
EPA (through the Department of Justice)
brings lawsuits against responsible
parties in order to recover costs it has
expended in cleaning up a site. In such
lawsuits, responsible parties frequently
make discovery requests for information
which may be entitled to confidential
treatment. EPA may ultimately be
required be court order to release cost
documents containing such information
in response to these discovery requests.
CBI, although not privileged under the
Federal Rules of Gvil Procedure, is
routinely granted protection from
unlimited disclosure through the use of
a protective order. Accordingly. EPA
will seek the entry of a stipulation and
protective order be/ore releasing CBI to
defendants. (See Appendix B for a
Model Stipulation and Protective
Order). ,
EPA requires the discretion to make a
limited release of CBI to responsible
parties in pre-litigation negotiations, in
order to recover the costs of site
cleanups more efficiently and
expeditiously. Such a release clearly
furthers the goal, envisioned by
Congress in section 107. of a Superfund
replenished through successful cost
recoveries.
Section 122 encourages the Agency to
facilitate settlements where possible.
EPA believes that the limited release of
cost information, including information
potentially entitled to confidential
treatment, would greatly facilitate
settlements in cost recovery cases. The_
regulation clarifies EPA's authority io
release UBI during pre-litigation
~n>g.»li niniirMnfi^f a rnntrartiial
'Sgreettteiit.'and during litigation through
a stipulation and ppjtffTlf*"' In \
doing so. the Apency will continue to 1
afford protactio.. to its contractors^ 1
information w!:i!e a? the same time \
facilitating settlements and minimizing^
litigation.
Congress recognized in section 104
that some trade secret information might
need to be released "when relevant in
any proceeding under this chapter." 42
U.S.C. 5604(e)(7)(A). Congress was
willing to allow for the release of trade
secret and confidential business
information where the release would
advance the purposes of the statute.
Neither the statute nor the legislative
history of CERCLA define "proceeding."
A definition of "proceeding" can be
found in the Administrative Procedure
Act (APA). 5 U.S.C 551.
The APA. 5 U.S.C. 551(12). defines
"agency proceeding" as "ar. agency
process as defined by paragraphs (5)
(rulemaking!. (7) (adjudication!, and (9)
(licensing].of this section." Paragraph
(7) defines "adjudication" as an "agency
process for the formulation of an order."
"Order" is defined in paragraph (6) as
"the whole or a part of a final
disposition, whether affirmative,
negative, injunctive, or declaratory in
form, of an agency in a matter other than
rule making but including licensing." In
order words, an agency process which
results in a final agency disposition may
be considered adjudication, and thus a
proceeding, under the APA.
Settlements under CERCLA section
107 or 122 fall into this definition of
adjudication. The Agency negotiates a
settlement with a PRP. and. after notice
and. comment, files the agreement in
district court as a consent decree.
CERCLA section 122. EPA thus reaches
a disposition as to the appropriate
liability of the PRP, and finalizes it
through notice and comment and
through entry as a consent decree,
enforceable by the court against all
parties.
ny>at:"" piifr1;shed today
amends the definition of "nrooBeditrg-
in 40 CFR 2.31Qfa> In anlhnrirp EPA ^
release potential CBI to appropriate-
persons tbat EPA has determined to be
PKPs at a partimtor <;»!»» Thic wrwifejjirit
ybe a Dut}]'^~ ¦ iif infni nrrrto? The
-.It™.,.- o |j|njtf»d release of
confidential business infnrn-.Jitinn to rr~
discrete group with a np«>d tn wiPM.thp
informnyitn if FPA Vn'lir¦ ¦ r"i ihr rvli'.iv
would encourage and expedite :
settlement, mis limited disclosure
would not subject this information to
release under the Freedom of '
Information Act (FOLA). 5 U.S.C. 552.
EPA would continue to deny all FOLA
requests for information in crtsi
documents :bat EPA determines to be
CBI pursuant to exemption 4 of FOIA.
EPA believes that the use of
contractual agreements and protective
orders would maintain the confidential
nature of the information and
adequately protect it from improper
reitiise and misuse. Courts routinely
afford this type of protection in other"-
ccr.Texis and find it to be sufficiently
projective, in addition, as noted above,
because Superfund contractor
information is submitted pursuant to
CERCLA section 104. persons outside
the Federal Government who
imrroperlv disclose the information are
subject to criminal prosecution under
stoion 104ie)(7)(B). (Federal employees
art si.T.ilariv subject to the Trade Secrets
Act. 18 U.S.C. 1905.) Absent the
applicability of a privilege or other
litjection consideration to the
dl^Iosure. EPA believes that a limited
re .ease is rv-rcessary in order to fulfill its
responsibility :o expeditiously recover
the costs of site cleanup. Seo section B..
ahcye. for 2 discussion of retroactivity.
The relation does not address the
re'rm-»linh" utrtnlrl
---appTy~(Appendix A). This document
wculd also be appropriate for use in
negotiations leading to administrative
settlements with responsible parties. If
an action has been filed in federal
District Court, the government would
seek entry by the court of the
"tirMi and Pmtwtjve Order"
(Appendix B). In this document
defendants would stipulate that the
dortjrr.er.ts released to them may
contain information entitled to
confidential treatment and agree to
specified pnxedures toVnair.tain
cor.fi d*;nt:a!l?y.
All doccrrter.ts released under th«
agreement w order would be used only
in preparation for either settlement
negotiations or trial. All persons to
whom the information is subsequently
d:s.-;!csrd would have to agree to be
boirnd by the terms of the agreement or
orri-r by signing the "Confidentiality
A2r«»»n»ens" .indexed to the ahov«>
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Federal Register / Vol. 58. No. 2 / Tuesday. January 5. 1993 / Rules and Regulations
461
agreement *od protective order. EPA
asd the submitter of the information
would rect-ne copies of all executed
"Coafideonality Agreetaents" five day?
prior to the disclosure:
L. Statutory References to. CERCLA
Section lot
. The Superfund Arneodme&ts and
Reauthorization Ac: of 2986 (SARA)
added several paragraphs to section 104
of CERCLA which pertain to
information gathering. Subparagraph
(e)(2) of sactioa 104 was redesignated by
SARA as subparagraph (e)(.~). This rule
amends the statutory referee ass in 40
CiFR 2.310 accordingly.
K. Correction of Citation to 40 CFR
2.310
4(1 CFR Z-211 requires contractors
who are furnished business information
by EPA to property safeguard such
information. Paragraph (d) of 2.211
erroneousS- cites % 2.310{i) =* the
provision authorizing disclosure to
authorized representatives of
information collected pursuant to
CERCLA section 104: the correct
reference is to $ 2310(b). This
regulation corrects that reference.
WajTer ofNotice of Proposed
Rulemaking and Delay in- Effective Date.
With respect to tie changes a Secting
CERCLA C31 and CAA CBL this rule is
interpretive in nature, as opposed to
legislative. Assuch it may be
promulgated without prior opportunity
for notice and com meat, pursuant to the
Administrative Procedures Act. S U-SjC.
553(bI(A}.and may be caade effective
immediately, without a 30-day delay,
pursuant to section 553(d)(2). With
respect to aXoravation disclosed to
contractors of other Federal agencies. I
find that prior notice is- unnecessary and
that good cause exists for making the .
rule e/fectire immediately, for the
following reason: contractors of other
Federal agpnrira. will be required by
reguLatioa and contract to have the same
protections against unauthorized use
and disclosure of CB1 as axe EPA'
contractors, so that the rights of CBi
submitters are unaffected.
hxecetive Order 12291
Executive Order (E.O.] L2291 requires
the preparation of a regulatory Impact
analysis fc." major rules, definedby the
order as those likely to resuh in:
(1) An m.iual effect on the economy
of S100 mllLioa orroons;
(2) A mator increase in costs or pno-s
ti>r consumers. individual industries.
Kederal. S<2te or local government
.^¦ircies. it geographic industries: or
(3) Significant advene effects on
competition, employment, investment,
prodoctivity. innovat . l. or on the
ability of the United f ates-based
enterprises to compete with foreign-
based enterprises in domestic or expert -
markets.
EPA has determined that this
regulation does not meet the definition
of a major rule under E.O. 12291 and
has therefore not prepared a regulatory
impact analysis.
Paperwork Reduction Act
Information coMedea requirements
in a ruie- must be submitted for approval
to the Office of Management and Budget
ur.cer the Paperwork Seduction Act. 44
U.S.C 3501 (A seq. No reporting or
recordkeeping requirements sre
inciuded as part of this reguiaiioo.
Therefore, no Information Collection
Request document his been prepared.
Regulatory Flexibility Act
Pursuant to section 505(b) if the
Regulatory Flexibility Act. 5 U.S.C.
6C5(b). the Administrator ceniP.es the:
this ruie will not have a significant
economic impact on a substacuial
nunber of ssall entities. The rule
authorizes the disclosure to authorized
representatives of the United Stales of
confidential information and disclosure
pursuant to a proceeding. Tfce persons
receiving, the confidential information
are bound by agreement, court order, or
criminal statute not to disclose the
information except where authorized or
to use the informatics for unauthorized
purposes. These restrictions ensure that
such disclosure does not affect the
competitive position of the submitters of
the information. Thus, there is no
economic impact on ssall entities.
List of Subjects in 40 CFR Part 2
Administrative practice and
procedure. Confidence! business,
information. Courts, Freedom of
information. Govemrr.ent eciployees.
Daied: December 23. >592.
Wiliiam L Knlty.
Aetrinistratar.
Therefore EPA amends 40 CFR par! 2
as follows;
PART 2—{AMENDED}
1. Tfce authority edition fcr part 2 Is
revised to read as foric.vs:
Authority: 5 U.S.C 3£1. 552 (=i amended).
553: »ecs. 11-i. 2Q5. 20S. ifil. aaci 30'.
Air Ac:, as a-T.enced (-lu L'.S.C 7+14. 7525.
7547. 7601. TW)7s sees. XS. 501 and 50*iiL
CftiR Water Art. as arrK^Jed [33 L'.S.C.
13' 3. t36t. 13**3)1: sen 13. Norse Cnntrr.'
An of 1972 (42 US.C <*-,2y. soc-« 1445 snd
1450L Safe Drraking \V«.vt Act Is; :' S C
300j—~. 30C}-9): sees. 2002. 3O07. and 9005.
Soli J Waste Disposal Act. as. amonded (42
U.SC 6912.6927.699Sk sees. 8(c). 11. and
14. Toxic Substances Control Act [is U.S.C.
260T(c). 2610. 2613h sees. lO. 12. and 25.
Federal Insecticide. Fungicide, and
Rodenticide Act. as amended (7 U-SC. l36h.
136*. I36w); sec. 408(f). Federal Food. Drug
and Cosmetic Act. as amended (21 U.S.C
34&;nh sees. 104(f) and 108. Marine
Prorection Research and Sanctuaries Act of
1972 <33 U.S.C 1414(f). 1418): sees. 104 and
115. Comprehensive Environmental
Response.Compensation, and Liability Act of
19o0. as amended (42 U.S.C 9604 and 96tSfc
sec. 50S. Motor Vehicle Information and Cost
Savings Act. as amended (15 U.SC 2005).
PAHT 2— PUBLIC INFORMATION
§2-211 [Amended]
2. In section 2.21 Ifd). remove
"contractor or subcontractor with EPA"
arc substitute "contractor or
subcontractor with the United States
Government".
3. In § 2.2tlfd} revise "2.310(i)" to
r«=d ~2.310fhr.
4. Section 2.301(b)(6) is removed.
5 Section "V301 is amended by
revising the first sentence of paragraph
(e): and bv revising paragraphs (h)(2Mi).
(hH2HuMA)and (hM2)(iiHQ to read as
follows:
§2.301 Special rules governing certain
formaiiofTobtained under the Clean Air Act.
§2.208 [Amended)
(e) * * * Section 2.20& applied to
information to which this section
applies, except that information which
is emission data, a standard or
limitation, or b collected pursuant to
section 211(b)(2)(A) of the Act is not
eligible for confidential treat. * " *
• • • • •
(h) * " *
(2;{i) A person under contract or
subcontract to the United States
government to perform work in support
of EPA in connection with the Act or
regulations which implement the Act
may be considered an authorized
representative of the United States for
purposes of this paragraph (h). Subject
to the limitations in this paragraph
(h}{2). information to which this section
applies may be disclosed:
(A) To a contractor or subcontractor
with EPA. if the EPA program office
.managing the contract First determines
in writing that such disclosure is
necessary in order that the contractor or
subcorrtractor may carry out the work
required by the contract or subcontract:
d:
(Bi To a contractor or subcontractor
w::h an agency other than EPA. if tho
EPA proyrnrr: office which provides the
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Federal Register / Vol. 58. Mo. 2 / Tuesday, January 5. 19!i3 / Rules and Regulations
information to that agency. contractor,
or subcontractor first determines in
-.vritir.g. in consulntion with the
General Counsel, that such disclosure is
necessary in order that the contractor or
subcontractor moy carry cut the work
required by the contract or s'jhr.o.i'.rEC!.
(ii) " m m
(A) That the contractor cr
subcontractor and the contractor's cr
subcontractor's employees shall use the
information only for the purpose of
carrying out the work, required by the
contract or subcontract, shall refrain
from disclosing the information to
anyone other than EPA ivirbout the
prior written approval of each affected
business or of an EPA legal office and
shall return to EPA all copies of the -¦
information (and any abstracts or
extracts therefrom) upon request by the
EPA program office, whenever the
information is no longer required by the
contractor or subcontractor for the
performance of the work required under
the contract or subcontract, or upon
completion of the contract or
subcontract (where the information was
provided to the contractor or
subcontractor by an agency other than
EPA, the contractor may disclose or
•eturn the information to that ager.cv):
(B) * * *
(C) That the contractor or
subcontractor acknowledges and agrees
hat the contract or subcontract
provisions concerning the use and
lisclosure of business information are
ncluded for the benefit of. and shall be
enforceable by. both the United States
government and any affected business
laving an interest in information
:onceming it supplied to the contractor
3r subcontractor by the United States
government under the contract or
~ubcontract. •>
» • • • •
6. Section 2.3C6 is amended>by
evising the second sentence of
paragraph (j)(l); and by adding
jaragraphs (j)(l)(i) and (ii) to read as
"ollows:
i 2.306 Special rules governing certain
reformation obtained under the Toxic
substances Control Act
• * * • •
(j) " " * (1) * * * Subject to the
imitations in this paragraph (j),
nformation to which this section
ipplies may be disclosed:
(i) To a contractor or subcontractor
¦vith EPA, if the EPA program office
uanaging the contract first determines
n writing that such disclosure is
lecessary for the satisfactory
performance by the contractor or
;ubcontractor of the contract or
ubcontract; or
(ii) To a contractor or subcontractor
with an agency other than EPA, if the
EPA program office.a.ichprovides the
information to that agency, contractor,
or subcontractor first determines in-
writing. in consultation with the
General Counsel, that such disclosure is
necessary for the satisfactory
performance by the contractor or
subcontractor of the contract or
subcontract.
• • . • m •
7. Section 2.310 is amended by
revising the section heading; by revising
paragraphs (a)(1), (a)(6). (b). (g)(1), (g)(2),
(gj(4), (h)(1), and (h)(4): and by adding
paragraphs (g)(5) and (g)(6). to read as
follows:
§2.310 Special rules governing certain
information obtained under the
Comprehensive Environmental Response,
Compensation, and Liability Act of 1980. as
amended.
(a) * * *
(1) Ac! means the Comprehensive
Environmental Response,
Compensation, and Liability Act of
1980, as amended; including
amendments made by the Superfund
Amendments and Reauthorization Act
of 1986, 42 U.S.C. 9601, et seq.
• • t» * m
(6) Proceeding means any rulemaking
or adjudication conducted by EPA
under the Act or under regulations
which implement the Act (including the
issuance of administrative orders under
section 106 of the Act and cost recovery
pre-litigation settlement negotiations
under sections 107 or 122 of the Act),
any cost recovery litigation under
section 107 of the Act, or any
administrative determination made
under section 104 of the Act. but not
including determinations under this
subpart.
(b) Applicability. This section applies
only to information provided to or
obtained by EPA under section 104 of
the Act, 42 U.S.C. 9604, by or from any
person who stores, treats, or disposes of
hazardous wastes; or where necessary to
ascertain facts not available at the
facility where such hazardous
substances are located, by or from any
person who generates, transports, or
otherwise handles or has handled
hazardous substances, or by or from any
person who performs or supports
removal or remedial actions pursuant to
section 104(a) of the Act. Information
will be considered to have been
provided or obtained under section 104
of the Act if it was provided in response
to a request from EPA or a
representative of EPA made for any of
the purposes stated in section 104, if it
was provided pursuant to the t~rms of;
a contract, grant or other agreement to
perforin work pursuant to section 104.
or if its submission could have been
required under section 104, r»*g3rdle<:s
of whether section 104 was cited as
authority for any request for the
information or whelher the iriformation
was provided direct.'y to EPA or through
some third person.
• • * • •
(g)(1) Under section l04',eit7)(A) of
the Act (42 U.S.C. 9604(e)(7)(A)) any
information to which this section
applies may be disclosed by EPA
because of the relevance of the '
information in a proceeding under the
Act, notwithstanding the fact that the
information otherwise might fce.entitled
to confidential treatment under this
subpart. Disclosure of information to
which this section applies'because of its
relevance in a proceeding shall be rrsads
only in accordance with this paragraph
(s)-
• • • » •
(3) fn connection with any proceed:.-.?
involving a decision by a presiding
officer after an evidentiary or
adjudicatory hearing, except with
respect to litigation conducted by a
Federal court, information to which this
section appties which may be entitled to
confidential treatment may be made
available to the public, or to one or more
parties of record to the proceeding,
upon EPA's initiative, under this
paragraph (g)(3). An EPA office
proposing disclosure of information
-under this paragraph (g)(3) shall so
notify the presiding officer in writing.
Upon receipt of such a notification, the
presiding officer shall notify each
affected business that disclosure under
this paragraph (g)(3) has been proposed,
and shall afford each such business a
period for comment found by the
presiding officer lo be reasonable under
the circumstances. Information may be
disclosed under this paragraph (g)(3)
only if, after consideration of any timely
comments submitted by the business,
the EPA office determines in wiiting
that, for reasons directly associated with
the conduct of the proceeding, the
contemplated disclosure would serve
the public interest, and the presiding
officer determines in writing that the
information is relevant to a matter in
controversy in the proceeding. The
presiding officer may condition
disclosure of the information to a party
of record on the making of such
protective arrangements and
commitments as he finds to be
warranted. Disclosure lo one or more
parties of record, under protective
arrangements or commitments, shall
no!, of itself, affect the eligibility of
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Federal Register / Vol. 56. No. 2 / Tuesday» January S. 1993 I Rales ami Regulations
463
information for confidential treatment
uader the other provisions of this
subpart. Any aSede„ business shall be
Kiven at least S days notice by the
presiding officer prior to mating (he
information available-to the public or to
one or more of the parties of record to
the proceeding.
(4) La. connection, with, any proceeding
involving a decision by a presiding.
officer after an evidentiary oc
adjudicatory hearing, except with
respect to litigation conducted by a
Federal court, information to which this
suction applies which may be-entitled to
confidential treatment may be made
a vailable to one or more parties, of
rycord to (he proceeding, upon request
of a party, under this- paragraph (g)(4).
A party of record seeking disclosure' of
information shall direct his request to
the presiding officer. Upon receipt of
such a request. the presiding officer
shall notify each affected business that
disclosure under this paragraph (g)(4)
has been, requested, and shall afford
each such business- a period for
comment found bythe presiding officer
to be reasonable under the
circumstances. Information may be
disclosed to a party of record under this
paragraph £gH4j only it after
consideration of any timely comments
submitted by the business, the presiding
officer determines in writing that:
(it The party olrecord has
satisfactorily shown that with respect to
a significant matter which is in
controversy in the proceeding, the
party's ability to participate-effectively
in the proceeding will be significantly
impaired unless the information is
disclosed to him; and
(ii) Any hana la an affected business
that would result from the disclosure is
likely to be outweighed by the benefit to
the proceeding and the public interest
that would result from the disclosure-.
The presiding officer may condition
disclosure of the information to a party
of record m the making o£ such
p roiective arrangements and
commitments as he finds to be
warranted. Disclosure to one-or more
parties of record, under protective
arrangements or commitments, shall
not. of itself, affect the eligibility of
information for confidential treatment
under the other provisions of this
subpart. Any affected business shall be
^iven at least 5-day* notice by the
presiding officer prior to making the
information available to one or more of
Under section 104(eK7)
of the Act (42 U.S.C. 9604{e)(7)). EPA
possesses authority to disclose to any
authorized representative of the Untied
States any information to which this
section applies, notwithstanding the fact
that the information might otherwise be
entitled to confidential treatment under
this subpart. Such authority may be
exercised only in accordance with
paragraph (h)(2) or (h)f3) of this section.
• ' • ~ • •
(h)(4) At the time any information is
furnished to a contractor, subcontractor,
or state or local government under this
paragraph (ftj. the EPA office furnishing
the information to the contractor,
subcontractor, or state or local
government agency shall notify the
contractor, subcontractor, or state or
local government agency that the
information may be entitled to
confidential treatment and that any
knowing and willful disclosure of the
information may subject the contractor,
subcontractor, or state oc local
government agency and its employees to
penalties in section 104(e)(7)(Bl of the
Act (42 U.S.C 9604(e)(7)(B)).
Note; The remainder of text will not appear
in the Code of Federal Regulations.
Appendix A to Preamble—Agreement
Regarding Confidentiality odniixiDalioit
and Annexes
These documents, would provide for
limited disclosure of certain business
information pertaining to costs-that may be
entitled toconfidenfiaf treatment pursuant to
40 CFR part 2 in the situation where the
Department of Justice has nor filed an action
on behaif of EPA in a United States District
Court. Tbeddcuments wouh! also apply in
circumstances where- EPA is negotiating wi:h
responsible parties outside cf a litigation
context using CcHCLA swrtiorr 122
administrative) sertlemenr authorities
Agreement Regarding Confitientiality of
Business InformaJion
EPA acd the potentially responsible party
(PRP) hereby agree that settlement of the
Govern meat *3 claim concerning the-
Superfurwi site will involve the
production of documents which have been
submitted to the United States
Environmental Protection Agency (EPA) by
various contractors (listed in Annex
(hereinafter "sobmiiters. ") containiBgcertain
information which :cay be euitied to
confidential: treatment under 40 CFR part 2.
Furthermore, the parties herein agree that tin;
limitation on the disclosure cf the documents
subject to this Agreement is necessary ra
order to protect the interests of the submitters
in the coofideotiality of their business
information.
The terms, of the Agreement Regarding
Confidentiality of Business Information
(hereinafter "Agreement") are as follows:
1. EPA shall provide the documentlsl
containing information which may be
entitled to confidential treatment to the PRP
and such documents} shall be handled in
accordance with the terms or ±is Agreement.
2. As used in this Agreement, the tirrm
"confidential information" means trai:.:
secrets or commercial or. financial
information submitted by a person to EH A.
and which may be entitled to confidential
treatment under 40 CFR parr 2. This
i n formation has nor been determined by EPA
under 40 CFR part 2, subpart B not to be
entitled to confidential treatmer.f.
3. Any information to be produced by EPA
pursuant to this Agreement shall be stamped
conspicuously with the word
"CONFIDENTIAL-by EPA on the top of each
page of each document prior to production to
the PRP. The transmittal of information
designated as confidential shall be done by
letter Iran EPA stating that the information
designated as confidentiaP is subject to th is
Agreement.
. 4. Information designated as confidential
under this Agreement shall not be used or
d isclosed by the PRP or any other person
subject to-paragraph 7 below for any purpose
other than the preparation for negotiation of
a settlement.
S. The PRP andPRP's counsel who obtain
information designated as confidential
hereunder, and any nonparty subject to this
Agreement, shalf not disclose or permit
disclosure of this information to any other
person, including without limitation any
officer, director, cmptoyee. agent, or
representative of the PRP. the PRP"s counsel,
or any nonparty, except rn the following
circumstances:
a. Disclosure may be made to employees of
the PRP Of of the PRP's. counsel who have
responsibility for settlement negotiation*
involving.the Superfund site.
Any employee to whom disclosure is made
shafT&e advised of. and become subject to.
the provisions of this Ar-^ement prior to
such disclosure by executing tha
Confidentiality Agreement (Annex 2)
annexed hereto. Employees do not include
persons, firms or corporation* errgagnd by t*-n-
I'KP or the PRP's. counsel on a contract basis
who shall be subject to the requirements of
subparagrapbfbt of this, paragraph.
b. Disclosure may be made to consultant»
witnesses, experts, or employees of
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Federal Register / Vol. 58. No. 2 /-Tuesday. January 5, 1993 / Rules and Regulations
"Expert(s)") employed or otherwise erjaged
jy the PRP or PRPt counsel to assist iz th«
areparation for negotiations. Prior to
iisclosure to any Expert, the Expert rsist
igree to be bound by the terms of this
Kgreement by executing the Confidentiality •
Agreement annexed hereto. A copy of each
sxecuted Confidentiality Agreement shtil be
furnished to EPA and submitter not lest th^n
five (5) business days prior to disclosure to
he Expert of.the business information.
6. Tie PRP, PRP"s counsel and any crier
jerson subject to this Agreement who obtains
nformation designated as cocfidential
hereunder, shall take all necessary and
ippropriate measures to maintain the-
tonfidential nature of the information. shall
;hare such information only with perscos
luthorized to receive it pursuant to this
Agreement, and shaft retain the Informs ticn
n a secure manner. Except as provides in
laragraph S above, no other.person shell be
lermitted access to the Information.
7. Any person who obtains access to
n formation designated as confidentia! under
his Agreement tray make copies. dupneates,
;x tracts, summaries, or descriptions of me
a format ion or any portiOD thereof onJt for
he purpose of preparation foe settlement
-.egotiations for cost recovery at
he Superfund site. All copies.
iuplicates, extracts, etc. shall be subject to
erras of this Agreement to the same exsent
tnd manner as original documents.
8. Any unauthorized disclosure of
cfotmatioa designated as confidential under
bis Agreement shall not result In a waiver
>f any submitter's claim of confidential Ty.
9. Within 60 days after termination of
negotiations, or as determined by EPA. any
person who obtained information desiciated
is confidential underUiis Agreement shall
issemhle and return such information to
iPA; including all copies, extracts,
rvumnaries, or descriptions of the -
nformation or portions thereof Such return
;hall be certified in writing by the person
kho obtained the information from EPA. All
,-uch information covered by this Agreement
which constitutes the work product of
tounsel or the PRP shall be destroyed,
-iowever, if before the expiration of the 63
lays the United States has fijedin Federal
tourl a cost recovery action for the
Superfundsite. naming tie
3RP as a party, the PRP may retain the
nformation. Such retention shall be
governed by the provisions of this Agreement
intii entry of a.protedive order governing the
^formation.
Dated:
For the PRP
Sated:
-or EPA
\rui€x 1—List of Contractors
*nnex 2—Business Information -
Confidentiality Agreement
The undersigned is currently working et
which is located at
>arir.g the past year the undersigned his
>een employed cr other-wise engaged is a
:i.Tsu:tart or contractor by the following
companies located afthe corresponding
address:
(t) •
(2j :—
The undersigned hereby ackrawledgss t&zt
he/she has read the foregoing Agreement
Regarding Confidentiality of Business
Information ("Agreement") executed by '-be
attorneys for the parties involved in
settlement of the Government's claim
concerning the - Ssperfund site.
understands the terras thereof, and agrees to
be bound by such terms. The undersigned
understands that disclosure of information
which has been designated as confidential by
the submitter of that informatics may ceuse
substantial harm to the affected business'
competitive position. Accordingly, among
ether responsibilities, the undesigned shall
ccly share such information with persons
specifically authorized to receive the
information pursuant to the Agreement, shall
retain the information in a secure manias,
and shall use such information only for the
purposes authorized by the Apeeir.ent. The
undersigred understands that the pledge of
confidentiality under this Confidentiality
Agreement continues after any lawsuit
associated with the settlement negotiations is
ever. Furthermore, the undersigned
understands that a breach of the Agreement
cay subject him/her to civil r^irns for
damages and to criminal prosecution under
42 U.S.C. 9604[e)l?XB).
Dated:
Signed:
Appendix B to Preamble—Stipulation and
Protective Order and Annexes
These documents would provide for
limited disclosure of certain business
information pertaining to costs that may be
entitled to confidential treatment pursuant to
-50 CFR part 2 after the Department of Justice
has filed an action on behalf of EPA and the
matter is subject to the jurisdiction of a
United States District Court.
In The United State* District Court
For the District of
United Stotes of Axerica, Plain tiff. v.
Defendant. Civil Action No. .
Stipulation and Protective Order
Plaintiff. United States of America, on
behalf of the United States Environmental
Protection Agency (EPA), and Defendant
(name) have hereby stipulated that discovery
in this case will Involve the production cf
documents which have been s-jbmitted to
EPA by various'contactors (listed in Ann**
1) (hereinafter"submitters)") containing
information which may be entitled to
coccdeotial treatment. In view of this
stipulation, the Co rt finds that good ca-st
exists for issuance cf an order requiring
limited disclosure of such ir.frrmation. Vpoa
consideration of the joint rr.ottcn tier such in
crder filed by the parties hereto and purrjjnt
to R^le ??Ec). Federi! Rules of Civ:!
Procedure.!: is Hereby Crdert:.
1. Plaintiff shall subrr.it the V
containing information which tnav be
entitled to cor.ficie-tial trvatrr.f nl to the
Defendant and such cocument(s) shall be
handled in accordance with the terms of this
Stipulation ind Protective Order {"Protective
Order")
2. As used in this Protective Order, the
term "confidential information" means trade
secrets or cscnmeroal or financial
information submitted by a person to
Piaintiff and which cay be entitled to
cccfidential treatment under 40 CFR part 2.
This infonaatioi) has not been determined by
Plaintiff urxJer 40 CFR part 2. subpart B not
to be entitled to confidential treatment.
3. Any information to be produced by
Plaintiff pursuant to this Protective Order
shall be stamped conspicuously with the
wcrd "CONFIDENTIAL" by the Plaintiff on
tbs top of each page of each document prior
tn production 10 the Defendant. The
transmittal of information designated as
ccnfidential shall-be done by letter from the
Pontiff stating that the information
designated as confidential is subject to this
Protective Order.
4. Information designated as confidential
under this Protective Order shall not be used
¦ cc disclosed by the Defendant or any other
pfrson subject to Paragraph 7 below for any
p-_rpcse other than the preparation for, and
trial cf. this Action asd any appeal therein.
5. The Defendant and Defendant's counsel
who obtain informedon designated as
confidentid hereunder, and any nonparty
subject to this Protective Order, shall not
disclose or permit disclosure of this
information to any other person, including
without limitation any officer, director,
enpioyee. agent, or representative of
Defendant. Defendant's counsel, or any
nonparty. except in the following
circumstances:
a. Disclosure may be made to employees of
Defendant cr o; Defendant's counsel who
have responsibility for the preparation and
trial of this action or any appeal therein. Any
employee to whom disclosure is made shall
be advised of. and become subject to, the
provisions of this Protective Older prior to
ssch disclosure by executing the
Confidentiality Agreement annexed hereto.
Employees do Dot include persons, firms or
corporations engaged by Defendant or
Defendant s counsel on a contract basis, who
shei! be subiect to the requirements of
subparagraph fbl cf this Paragraph.
b. Disclosure nay be made to consultants,
witnesses, experts, cr employees of experts
T'Exp
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Federal Register / Vol. 58. No. 2 / Tuesday. January 5, 1993 / Rules and Regulations
465>
pursuant to this Protective Order, arid shall
njtri^n the information in a secure manner.
E*&-pt as provided in Paragraph 5 above, no
othrr person shall 5m permitted access to the
in formation.
7. Ar.y person who obtains access to
information designated as confidential under
this Protective Order may make copies,
duplicate's, extracts, summaries, or
descriptions of the information or any
portion thereof only for the purpose of
preparation for litigation in this matter. A!!
copies, duplicates, extracts, etc. shall be
sub:
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PAPERWORK TO ASSERT
DELIBERATIVE PROCESS PRIVILEGES
-------
SETTLEMENTS
-------
M
-------
DE MINIMIS SETTLEMENT
INCLUDES 10 POINT SETTLEMENT
ANALYSIS(CD) OR SETTLEMENT
JUSTIFICATION (AOC) AS APPROPRIATE
-------
-------
,«eo sn»»
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
343 COURTLAND STREET. N.E.
ATLANTA. GEORGIA 3036S
4RC
September 30, ]j}93
Myles E. Flynt
Acting Assistant Attorney General
Environmental and Natural Resources
Division
U.S. Department of Justice
1425 New York Avenue, N.W.
Washington, D.C. 20005
Re: Rock Hin Phcun-ir-al tympany site. Rock Hill. South Carolina
De Minimis Settlement with First Union National Bank of S.C.
Dear Mr. Flynt:
The purpose of this letter is to submit the above-referenced
matter for your review and written approval. Pursuant to Section
122(g)(1)(B) of CERCLA, 42*U.S.C. § 9622(g)(1)(B), the U.S.
Environmental Protection Agency, Region IV (EPA), proposes to
enter into an early de minimis landowner settlement with the
First Union National Bank of South Carolina, the current owner of
a portion of the Rock Hill Chemical Company Superfund Site
located in Rock Hill, York County, South Carolina.
Enclosed for your review is: (1) a copy of the executed
Administrative Order on Consent; and (2) a copy of the
"Ten-Point" settlement analysis assessing the proposed de minimis
landowner settlement.
Mr. Bob Homiak, of the U.S. Department of Justice (DOJ),
Environmental Enforcement Section, is the DOJ attorney assigned
to this case. If you have any questions, you may contact
Mark M. Davis, the EPA attorney assigned to this case, at
(404)347-2641, extension 2271.
Sincerely, •
Enclosures
cc: Bob Homiak (DOJ)
Helen Keplinger (OE)
Gary Worthman (OWPE) (w/o enclosure)
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
Proceeding Under Section
122(g)(4) of the
Coxaprehens ive
Environmental Response,
Compensation, and Liability
Act Of 1980, 42 U.S.C.
S 9622(g)(4), as amended.
EPA Docket No.: 93-33-C
ADMINISTRATIVE ORDER ON CONSENT
I. JURISDICTION
This Administrative Order on Consent (Consent Order)^is
issued pursuant to the authority vested in the President of the
United States by Section 122(g)(4) of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980,
as amended, by the Superfund Amendments and Reauthorization Act of
1986 (CERCLA), 42 U.S.C. § 9622 (g)(4)., to reach settlements in
actions under Section 106 or 107(a) of CERCLA, 42 U.S.C. § 9606
or § 9607(a). The authority vested in the President has been
.delegated to the Administrator of the United States Environmental
Protection Agency (EPA) by Executive Order 12580, 53 Fed. Reg.
2923 (January 29, 1987), and further delegated to the Regional
Administrators of the EPA by EPA Delegation Number 14-14-E
(September- 13, 1987) , and redelegated to the Director, Waste
Management Division, by EPA, Region IV, Delegation Number 8-14-D.
This Consent Order is issued to First Union National Bank of
South Carolina (Respondent) and each of its respective
affiliates, officers, directors, agents, and employees.
Respondent agrees to undertake all actions required by the terms
and conditions of this Consent Order. - Respondent further
consents to and will not contest EPA's jurisdiction to issue this
Consent Order or to implement or enforce its terms.
II. DEFINITIONS
"Rock Hill Chemical Company Site" or "Site" shall mean the
Superfund site located on the parcel of property situated on the
north side of North Cherry Road in Rock Hill, South Carolina,
which encompasses a 4.5 acre area, including two (2) adjacent
properties: the Rutledge property, on which above-ground tanks
and part of the waste pile area were located; and several other,
adjacent lots formerly owned by Rutledge Realty Company and now
owned by Respondent. Respondent's portion of the Site property
is described more, particularly as:
IN THE MATTER OF:
Rock Hill Chemical Company Site
Rock Hill, South Carolina
First: Union National Bank
of South Carolina,
Respondent.
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- 2' -
All those certain pieces, parcels or lots of land
lying, being, and situated in Ebeneezer Township
Number 3, near Rock Hill, in the County of York, and State
of South Carolina, and being shown and designated as lots
46, 47, 46C 49, 50, 51, 52, and 53 in Block B on Map of
Cranford Park, prepared by White and Marett, Reg- Sur.,
November 26,- 1948, recorded in the Office of the Clerk of
Court for York County in Plat Book 5, at page 28, and also
shown as lot C on Map of Property to be acquired by Broadus
Thomasson, trustee, prepared by W. C. White, R.L.S.,
September 27, 1972.
III. STATEMENT OF FACTS
1. The Rock Hill Chemical Conpany Site was proposed for
inclusion on the National Priorities List (NPL) on June 24, 1988,
and was finalized on the NPL on February 16, 1990. From-14M50
through 1964, the Site was the location of the Rock Hill; Chemical
Company, which distilled paint solvents and reportedly recovered
textile dye products. After a fire destroyed the facility in
1964, it was abandoned by the operators. While the Rock Hill
Chemical Company was operating, residue from the chemical
company's distillation still bottoms, drum bottoms, and storage
tank bottoms was placed in piles on the surface of the ground and
later covered with fill dirt and construction debris. The Site
consists of several adjoining.lots, some of which are currently
owned by Rutledge Enterprises, and others of which are currently
owned by Respondent, First Union National Bank of South Carolina.
2. Rock Hill Chemical Company operated its solvent
distillation facility on the Site from 1960 through 1964. At the
time the company was in operation, the property on which the
chemical company was located, as well as the adjacent lots, were
owned by Rutledge Realty. First Federal Savings Bank purchased
the lots currently owned by First Union National Bank of South
Carolina in 1972, eight (8) years after the destruction of the
Rock Hill Chemical Company. The South Carolina Federal Savings
Bank, as successor through a merger with First Federal Savings
Bank", has asserted that officers and agents of First Federal
Savings Bank physically inspected the property in accordance with
the normal, inspection procedures of the time before purchasing
the property. No evidence of drum disposal or other indications
of contamination were observed at the time the property was
purchased.
3\ South Carolina Federal Corporation, the parent of South
Carolina Federal Savings Bank, was merged into First Union
Corporation of South Carolina, the parent of First Union National
Bank of South Carolina, on January 15, 1993. South Carolina
Federal Savings Bank was merged into First Union National Bank of
South Carolina on February 19, 1993.
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- 3" -
4. Lead, a hazardous substance within the meaning of
Section 101(14) of CERCLA, 42 U.S.C. § 9601(14), as well as PCBs,
trichloroethylene, chromium, and other hazardous substances, have
been and are threatened to be released into the environment at or
from the Site. -
5. As a result of the release and threatened release of
hazardous substances into the environment, EPA has undertaken
response actions at the Site pursuant to Section 104 of CERCLA,
42 U.S.C. § 9604, and will undertake further response actions in
the future.
6. In a 1986 removal action supervised by the South
Carolina Department of Health and Environmental Control (SCDHEC)
and EPA, First Federal Savings Bank transported approximately
forty-one (41) cubic yards of paint sludge and still bottoms to a
hazardous waste facility regulated under Subtitle C of the—
Resource Conservation and Recovery Act (RCRA). In late 1987, EPA
used CERCLA emergency funds to remove 46/000 gallons of waste
from the above ground tanks and to transport the materials to a
RCRA-regulated facility. In conducting its response actions at
the Site, EPA has incurred response costs of approximately
$500,137.17 to date.
7. Respondent represents, and for the purposes of this
Consent Order, EPA accepts, that Respondent's involvement with
the Site is limited to the following:
a. First Federal Savings Bank purchased lots adjacent
to the Rock Hill Chemical Company in 1972, eight
(8) years after the Rock Hill Chemical Company was
destroyed by fire.
b. Before purchasing the property, officers and
agents of the First Federal Savings Bank
physically inspected the property. South Carolina
Federal Savings Bank, as successor through a
merger with First Federal Savings Bank, states
that it found no evidence of drum disposal or
other indications of contamination through
observation at that time.
c. First Federal Savings Bank had loaned Rutledge
Realty $75,000.00 in 1967, secured by a mortgage
on most of the property that Rutledge Realty
owned, including the lots the First Federal
Savings Bank purchased five (5) years later.
d. First Federal Savings Bank made no use of its
property for twelve (12) years until 1984, when it
was preparing to construct a branch office on the
lots it purchased in 1972 and discovered the
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- 4" -
contamination. At the time of the 1984 discovery,
First Federal Savings Bank promptly notified
SCDHEC and employed consultants to analyze the
property and determine the extent of the
contamination. These, consultants discovered
distillation still bottoms, metal drums, and other
hazardous substances buried beneath the surface of
the property.
e. Under the supervision of SCDHEC and EPA, First
Federal Savings Bank conducted a removal action on
its property which was completed in November 1986
and received SCDHEC approval in December 1986.
f. In the removal action, the previously contaminated
portion of the property was excavated, the
contaminated soil was deposited in an approved
landfill, and.the affected portion of First
Federal Savings Bank's property was covered by a
clay cap. First Federal Savings Bank cleaned up
the property at its own expense, at a cost of
$307,850.00. Iri 1988, First Federal Saving Bank
was acquired by, arid merged into South Carolina
Federal Savings Bank.
g. In a 1989 cost recovery action against other
private parties, South Carolina Federal Savings
Bank received less than $150,000.00 (the actual
amount of settlement is subject to a
confidentiality agreement) through a settlement
agreement with William Rutledge; Rutledge Realty
Company; Lawrence Leonard; Hoechst Celanese
Corporation; BASF Inmont Corporation; Homelite
Division of TextfCin, Inc.; Engraph, Inc.; Rexham
Corporation; W. R. Grace & Co.; Reeves Brothers,
Inc.; and Chase Packaging Corporation, all of whom
the EPA has designated as PRPs for the Rock Hill
Chemical Company Site.
h. First Federal Sayings Bank and South Carolina
Federal Savings Bank did not conduct or permit the
generation, transportation, storage, treatment, or
disposal of any hazardous substances at the Site,
nor did1it contribute to the release or threat of
release of a hazardous substance at the Site
through any action or omission.
i. The drums, solvents, and other hazardous
substances found on the Rock Hill Chemical Company
Site, were.generated, .transported, stored,
treated, disposed of, or released by the operators
of the Rock Hill Chemical "Company and other
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- 5 -
parties. None of these operators, generators,
transporters, or other parties were agents or
employees of First Federal Savings Bank or South
Carolina Federal Savings Bank. Neither First
Tederal Savings Bank nor South Carolina Federal
Savings Bank had any contractual relationship with
any party relative to the operation of the Rock
Hill Chemical Company, or relative to the
generation, transportation, storage, treatment,
disposal, or release of hazardous substances at
this or any other site. Respondent neither owned
the property at the time the contaminants were
deposited, nor conducted any activities that would
have contributed to the contamination in any
way.
j . On discovering that its property was contaminated,
First Federal Savings Bank conducted the
state-required and federally supervised
.remediation of its property promptly, in good
faith, with due care, and at considerable expense.
k. Payments that Respondent is required to make
pursuant to this Consent Order are a minor portion
of the total past and future response costs at the
Site, which EPA, based upon currently available
information, estimates to be ten (10) million
dollars.
IV. DETERMINATIONS
Based upon the foregoing Statement of Facts and on the
Administrative Record for this Site, EPA has determined that:
1. The Site as described in Sections II and III of this
Consent Order is a "facility" as that term is defined in Section
101(9) of CERCLA, 42 U.S.C. § 9601(9).
2. Respondent is a "person" as that term is defined in
Section 101(21) of CERCLA, 42 U.S.C. § 9601(21).
3. Respondent is an "owner" of a facility within the
meaning of Section 107(a)(1) of CERCLA, 42 U.S.C. § 9607(a)(1),
and is a "potentially responsible party" (PRP) within the meaning
of Section 122(g)(1) of CERCLA, 42 U.S.C. § 9622(g)(1).
4. The past, present, or future migration of hazardous
substances from the Site constitutes an actual or threatened
"release" as that term is defined in Section 101(22) of CERCLA,
42 U.S.C. § 9601(22).
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5. Prompt settlement with Respondent is practicable and in
the public interest within the meaning of Section 122(g)(1) of
CERCLA, 42 U.S.C. § 9622(g)(1).
6. This Consent Order involves at most only a minor
portion of the response costs at the Site pursuant to Section
122(g)(1) of CERCLA, 42 U.S.C. § 9622(g)(1).
7. Respondent is eligible for a de minimis settlement
pursuant' to Section 122(g) (1) (B) of CERCLA, 42 U.S.C.
§ 9622 (g) (1KB) .
V. ORDER
Based upon the Administrative Record for this Site and the
Statement of Facts and Determinations set forth above, and—in
consideration of the promises and covenants set forth herein, it
is hereby AGREED TO AND ORDERED:
VI. ACCESS AND NOTICE TO SUBSEQUENT PURCHASERS
1. Respondent, and any other person or entity to whom
Respondent may sell, assign, lease, grant or otherwise transfer
the property that is the subject of this Consent Order, hereby
grants to EPA, its representatives, contractors, agents,
delegates, and all other persons performing response actions
under EPA's oversight, an irrevocable right of access to the
portion of the Site owned by Respondent for the purposes of
monitoring the terms of this Consent Order and performing
response actions at the Site.
2. Nothing in this Consent Order shall in any manner
restrict or limit the nature or scope of response actions which
may be taken by EPA in fulfilling its responsibilities under
federal law or restrict or limit EPA's right of access under
applicable law. Respondent recognizes that the implementation of
response actions, at the Site may interfere with the use of its
property. Respondent agrees to cooperate with.the EPA and the
persons conducting the remedial actions at the Site and further
agrees not to interfere with such response actions.
3. Respondent shall file and record, within thirty (30)
calendar days after approval by EPA, in the appropriate real
property registry in York County, South Carolina, a notation on
the deed to the Site property or on some other instrument which
is normally examined during title search, that will in perpetuity
notify any potential purchaser of the Site property that:
a. the Site property contains hazardous substances as
defined by.Section 101(14) of the Comprehensive
Environmental Response, Compensation, and
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Liability Act of 1980, as amended, 42 U.S.C.
§ 9601(14);
b. use of the Site in a manner which would disturb
"bhe integrity of the final cover, the integrity of
the remediated Site, or the function of any
monitoring system or other site control system is
prohibited, unless the EPA Regional Administrator
determines that the disturbance is necessary to
the proposed use of the property and will not
increase the potential hazard to human health or
the environment, or is necessary to reduce a
threat to human health or the environment; and
c. the information contained in subparagraphs (a)
and(b) has been filed with the appropriate local
zoning authority/ and state agencies.
4. Within thirty (30) calendar days after the effective
date of this Consent Order, Respondent shall submit a copy of the
proposed notice to EPA for, review.and approval. If EPA
determines that the notice is deficient, respondent shall revise
and resubmit the notice to EPA within ten (10) calendar days
after receipt of EPA's determination.
5.:, Respondent agrees not to convey or transfer any title,
ownership, leasehold, easement, or any other interest in the Site
or any portion thereof, or any appurtenances thereto, unless such
conveyance or transfer includes a covenant that shall run with
the portion of the Site property owned by Respondent and;
a. permits EPA, its agents and delegates' and their
respective authorized representatives to enter
upon the Site for purposes of implementing the
remedial actions required under the Record of
Decision (ROD), including operation and
maintenance, or for performing any response
actions deemed necessary-by EPA;
b. requires the purchaser(s) or transferee(s) to
agree not to interfere with or disturb EPA's or
the PRPs' (or their successors) performance of any
remedial action required under the ROD, including
operation and maintenance, or any response actions
deemed necessary by EPA; and .
c. requires the purchaser(s) or transferee{s) to
agree to inform any person or entity that acquires
any title, ownership, leasehold, easement or other
interest in the Site, or any portion thereof, or
appurtenances thereto, of the requirements,
conditions,/ and operative effect of this Section
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of this Consent Order..
6i Nothing in this Consent Order shall in any manner
restrict or lirttit the nature or scope of response actions which
may be taken by EPA=in, fulfilling its responsibilities under
federal law. Respondent recognizes that the implementation of
response actions at the Site may interfere with the use of its
property: Respondent agrees to cooperate with EPA in the
implementation of response actions at the Site and further agrees
not to interfere with such response actions.
7. At least thirty (30) calendar days before Respondent
executes any conveyance or transfer document subject to this
Section, Respondent shall notify, by registered mail, EPA's
Remedial Project Manager for the Site that Respondent intends to
execute such conveyance or transfer document. The notice-«hall
state the proposed wording of the covenant required under this
Section. The restrictions and obligations set forth in this
Section shall run with the iand and shall be binding upon any and
all persons, companies, or entities and their successors and
assigns who now or may hereafter acquire any title, ownership,
leasehold, easement, or other interest in this Site or any
portion thereof, or any appurtenance(s) thereto, in accordance
with applicable state law.
VII. DUE CARE
8. Nothing in this Consent Order shall be construed to
relieve Respondent of its. duty to exercise due care with respect
to the hazardous substances at the Site, or its duty to comply
with all applicable laws and regulations.
VIII. PAYMENT
9. Respondent shall pay the sum of $150,000.00 to the
Hazardous Substance Superfund within thirty (30) calendar days
after the effective date of this Consent Order. Payment shall be
made by certified or cashier's check, payable to the EPA
Hazardous Substance Superfund. The check shall reference the
Site name, the "name and address of Respondent, and the EPA Docket
Number for this action, and shall be sent to:
United States Environmental Protection Agency
Region IV
ATTENTION: Superfund Accounting
P. O. Box 100142,
Atlanta, Georgia 30384
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Respondent shall simultaneously send a copy of the check to:
Sandy Ifyers
Remedial Project Manager
Waste Management Division
U.S. Environmental Protection Agency, Region IV
345 Courtland Street, N.E.
Atlanta, Georgia 30365
IX. CIVIL PENALTIES
10. In addition to any other remedies or sanctions
available to EPA, Respondent shall be subject to a civil penalty
of up to $25,000.00 per day for each failure or refusal to comply
with any term or condition of this Consent Order pursuant to
Section 122(1) of CERCLA, 42 U.S.C. § 9622(1).
X. CERTIFICATION OF RESPONDENT
11. Respondent certifies that to the best of its knowledge
and belief, it has fully and accurately disclosed to EPA and
summarized in Section III, Paragraph 7, all information currently
in its possession and in the possession of its agents, which
relates in any way to its qualifications for a de minimis
settlement under Section 122(g)(1)(B) of CERCLA, 42 U.S.C.
§ 9622(g)(1)(B).
XI. COVENANT NOT TO SPE
12. Subject to the Reservation of Rights in Section XII.
of this Consent Order, upon payment of the amount specified in
Section VIII. of this Consent Order, EPA covenants not to sue or
take any other civil or administrative action against Respondent
for any and all civil liability, for injunctive relief, or
reimbursement of response costs pursuant to Section 106 or 107(a)
of CERCLA, 42 U.S.C. §§ 9606 or 9607(a), or Section 7003 of the
Resource Conservation and.Recovery Act, as amended, 42 U.S.C.
§ 9673, with-regard to the Site.
13. In consideration of EPA's covenant not to sue,
Respondent agrees not to assert any claims or causes of action
against the United States or its contractors or its employees or
the Hazardous Substance Superfund arising out of expenses
incurred or payments made pursuant to this Consent Order, or to
seek any other costs, damages, or attorneys' fees from the United
States or its contractors or employees arising out of response
activities at the Site.
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XII. RESERVATION OF RIGHTS
14. Nothing in this Consent Order is intended to be, nor
shall it be, construed as a release or covenant not to sue for
any claim or catise of action, administrative or judicial, at law
or in equity, which the United States, including EPA, may have
against Respondent for:
a. any liability as a result of failure to provide
access, notice, or otherwise comply with Section
VI. of this Consent *Order;
b. any liability as a result of failure to exercise
due care with respect to hazardous substances at
the Site;
c. any liability as a result of failure to make—the
payments required by Section VIII. of this
Consent Order;
d. any liability resulting from exacerbation by
Respondent of the release or threat of release of
hazardous substances from the Site;
e. any and all criminal liability; or
f. any matters not expressly included in the covenant
not to sue set forth in Section XI. of this
Consent Order, including, without limitation, any
liability for damages to natural resources.
15. Nothing in this Consent Order constitutes a covenant
not to sue or to take action, or otherwise limits the ability of
the United States, including EPA, to seek or obtain further
relief from Respondent, and the covenant not to sue in Section
XI. of this Consent Order is null and void, if information
different from that specified in Section III., Paragraph 7, is
discovered which indicates that Respondent fails to meet any of
the criteria-specified in Section 122(g)(1)(B) of CERCLA,
,42 U.S.C. § 9622(g) (1) (B) .
16. Nothing in this Consent Order is intended as a release
or covenant not to sue for any claim or cause of action,
administrative or judicial, civil or criminal, past or-future, in
law or in equity, which the United States, including EPA, may
have against any person, firm, corporation or other entity that
is not a signatory to this Consent Order.
17 .• This Consent Order was negotiated and executed by the
EPA and Respondent in good faith to avoid expense and protracted
litigation. " EPA and Respondent agree that the actions undertaken
by Respondent in accordance with this Consent Order, do not
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constitute an admission of any liability by the Respondent.
Respondent does not admit and retains the right to controvert in
any subsequent"proceedings, other than proceedings to implement
or enforce this Consent Order, the validity of the Statement
Facts or Determinations contained in this Consent Order.
XIII. CONTRIBUTION PROTECTION
18. Subject to the Reservation-of Rights in Section XII. of
this Consent Order, EPA agrees that by entering into and upon
carrying out the terms of this Consent Order, Respondent will
have resolved its liability, and the liability of each of their
respective affiliates, officers, directors, agents, and
employees, to the United States for those matters set forth in
the covenant not to sue, Section XI., as provided by Section
122(g)(5) of CERCLA, 42 U.S.C. § 9622(g)(5), and shall have
satisfied their liability, to the fullest extent.permitted—by
law, for those matters within the meaning of Section 107(a) of
CERCLA, 42 U.S.C. § 9607(a).
XIV. PARTIES BOUND
19. This Consent Order shall apply to and be binding upon
Respondent and its affiliates, officers, directors, agents, and
employees, and their successors and assigns. The signatory
represents that he is fully authorized to enter into the terms
arid conditions of this Consent Order and to legally bind the
Respondent. In the event that Respondent transfers title or
possession of the Site, it shall notify EPA, as provided in
Section VI. of this Consent Order prior to any such transfer and
shall continue to be bound by all of the terms and conditions of
this Consent Order, unless EPA agrees otherwise and modifies this
Consent Order accordingly.
XV. PPBLIC COMMENT
20. This Consent Order shall be subject to a thirty (30)
calendar day public :comment period: pursuant to Section 122 (ij of
CERCLA, 42 UtS.C. § 9522(i). In accordance with Section
122 (i) (3) of CERCLA, 42 U.S.C. § 9622(i)(3), EPA may withdraw or
modify consent to this Consent Order if.comments received
disclose facts or*considerations which indicate that this Consent
Order is inappropriate, improper, or inadequate.
XVI. ATTORNEY GENERAL APPROVAL
21. The Attorney General or his designee has issued prior
written approval of the settlement embodied in this Consent Order
in accordance with Section 122(g)(4) of CERCLA, 42 U.S.C.
§ 9622(g)(4).
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XVII. EFFECTIVE DATE
22. The effective date of this Consent Order shall be the
date upon which EPA issues written notice to the Respondent that
the public coirartSnt period pursuant to Section XV. of this Consent
Order has closed and that comments received, if any, do not
require modification or EPA withdrawal from this Consent Order.
IT IS SO AGREED AND ORDERED;
FIRST UNION NATIONAL BANK OF SOOTH .CAROLINA
BY MALCOLM D. GRIGGS, ITS VICE-PRESIDENT
First Union National flank
of South Carolina
Director
Waste Management Division
U.S. Environmental Protection Agency
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wwgnBffgMiniT CONFIDENTIAL
ATTORNEY WORK PRODPCT
DO NOT RELEASE
TEN POINT SETTLEMENT ANALYSIS
FOR EARLY DE MINIMIS LANDOWNER SETTLEMENT WITH
FIRST UNION NATIONAL BANK OF SOUTH CAROLINA
ROCK HILL CHEMICAL COMPANY SUPERFUND SITE
ROCK HILL, YORK COUNTY, SOUTH CAROLINA
I. Overview
Pursuant to Section 122(g)(1)(B) of^CERCLA, 42 U.S.C.
§ 9622(g) (1) (B), the U.S. Environmental Protection'Agency, Region
IV (EPA), proposes to enter into an early de minimis landowner
settlement with the First Union National Bank of South Carolina,
the current owner of a portion of the Rock Hill Chemical Company
Superfund Site (the Site) located in Rock Hill, York County,
South Carolina.
The settlement, which is embodied in an Administrative Order on
Consent, provides that First Union National Bank of South
Carolina will pay the sum of $150,000.00 to the Hazardous
Substance Superfund. EPA is seeking written approval from the
U.S. Department of Justice to enter into this early de minimis
landowner settlement with the First Union National Bank of South
Carolina. Bob Homiak, on behalf of the U.S. Department of
Justice, has orally approved of the early de minimis landowner
settlement.proposal with the First Union National Bank of South
Carolina. Headquarter's concurrence for this settlement is not
required. Helen Keplinger, however, from EPA's Office of
Enforcement, has.orally approved the de minimis settlement
proposal.
This memorandum sets forth the terms of the settlement and the
background of the Site, and it assesses the ten point settlement
criteria outlined in the "Interim CERCLA Settlement Policy
announced as part of EPA's Hazardous Waste Enforcement Policy,"
50 Fed. Reg. 5034 (February 5, 1984) . EPA, Region IV, recommends
that the U.S. Department of Justice approve the early de minimis
landowner settlement Administrative"Order*on Consent.
II. Terms
First Union National Bank of South Carolina has agreed to pay
$150,000^00^0 the EPA Superfund, as well as, provide access to
its. property in return for an early de minimis landowner
settlement. The de minimis landowner settlement is embodied in
an Administrative Order on Consent that includes a covenant not
sue for all civil and administrative claims available under
Sections 106 and 107(a) of CERCLA, 42 U.S.C. §§ 9606 and 9607(a),
as well as a reservation of rights provision with the standard :
re-opener language. -It is the second de minimis landowner
settlement agreement for EPA, Region IV.
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III. Background
A. Site Information
The Rock Hill Chemical Company Superfund Site (the Site) is
located on North Cherry Road, in Rock Hill, York County, South
Carolina. The Site covers approximately five (5) acres of land
in a light commercial and residential area, across from the Rock
Hill Mall. From 1960 through 1964, the Site was the location of
the Rock Hill Chemical Company (RHCC), a facility which distilled
paint solvents and reportedly recovered textile dye products.
While RHCC was operating, residue from RHCC's distillation still
bottoms, drum bottoms, and storage tank bottoms was placed in
piles on the surface of the facility property and later covered
with fill dirt and construction debris.
During its operation, RHCC accepted waste oils and solvents, from
ten (10) generators, separated them, and sold the extracted
solvents and oils back to the generators. BASF (Inmont)
Corporation; Burlington Industries, Incorporated; Chase
Packaging, Incorporated; CTS Corporation; Engraph Incorporated;
FMC Corporation, Lithium Division; Hoechst Celanese Corporation;
Homelite Division of Textron; Rexham Industries Corporation; and
W.R. Grace and Company, are the ten (10) generators that have
been identified as potentially responsible parties at the Site.
The Site is comprised of several parcels of land, including the
lot upon which the RHCC was located, as well as several adjacent
lots. This de minimis landowner settlement only involves the
First Union National Bank of South Carolina, which is the current
owner of a lot located adjacent to the lot upon which RHCC
operated from 1960 to 1964.
A portion of the Site was purchased in parcels by William C.
Rutledge, Jr., between June 16, 1954, and June 25, 1959. William
C. Rutledge, Jr., however, sold his portion of the Site to his
real estate business, Rutledge Realty Company, Incorporated, on
August 28/ 1962. Thereafter, Rutledge Realty Company,.
Incorporated:,- purchased the remainder of the Site property from
H.B. Powell on May 22, 1963.
At the time RHCC was in operation, from 1960 to 1964, the
property on which RHCC was located, as well as the adjacent lots
which comprise the Site, were owned by either William C.
Rutledge, Jr., Rutledge Realty Company, Incorporated, or both.
There was no formal lease agreement, however, between the
Rutledge Realty Company, Incorporated, and RHCC.
RHCC ceased reclamation operations at the Site in late 1964,
after a fire destroyed most of the facility and its inventory.
Since that time, no other industrial activity has taken place at
the Site.
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In 1972, eight (8) years after RHCC was destroyed by the fire,
First Federal Savings Bank purchased several lots from Rutledge
Realty Company, Incorporated. These lots were located adjacent
to the property where RHCC operated its solvent reclamation
facility.
Before purchasing the property, officers and agents of the First
Federal Savings Bank physically inspected the property. South
Carolina Federal Savings Bank, as successor through a merger with
First Federal Savings Bank in 1988, has certified in writing that
First Federal Savings Bank found no evidence of drum disposal or
other indications of contamination through observation at that
time.
First Federal Savings Bank had loaned Rutledge Realty Company,
Incorporated, $75,000.00 in 1967, secured by a mortgage on most
of the property that Rutledge Realty Company, Incorporated*.
owned, including those lots that First Federal Savings Bank
purchased in 1972. The real estate transaction between First
Federal Savings Bank and Rutledge Realty Company, Incorporated,
in 1972, however, was a separate real estate transaction entirely
unrelated to First Federal Savings Bank's $75,000.00 loan to
Rutledge Realty Company, Incorporated.
First Federal Savings Bank made no use of its property for twelve
(12) years until 1984, when it was preparing to construct a
branch office on the lots it purchased in 1972 and discovered
that its property was contaminated. At the time of the 1984
discovery. First Federal Savings Bank promptly notified the State
of South Carolina Department of Health and Environmental Control
(SCDHEC) and employed consultants to analyze the property and
determine the extent of the contamination.
First Federal Savings Bank's consultants discovered distillation
still bottoms, metal drums, and other hazardous substances buried
beneath the surface of First Federal Savings Bank's property.
Under the supervision of SCDHEC, First Federal Savings Bank
conducted a removal action on its property which was completed in
November 198€, and received SCDHEC approval in December 1986.
In the removal action, the previously contaminated portion of the
property was excavated, the contaminated soil was deposited in an
approved landfill, and the affected portion of First Federal
Savings Bank's property was covered by a clay cap. First Federal
Savings Bank cleaned up the property at its own expense, at a
cost of $307,850.00. In 1988, First Federal Saving Bank was
acquired by, and merged into South Carolina Federal Savings Bank.
In a 1989 cost recovery action against other private parties to
recover its costs for the removal activities on its property,
South Carolina Federal Savings Bank received less than
$150,000.00 (the actual amount of settlement is subject to a
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confidentiality agreement) through a settlement agreement with
William C. Rutledge, Jr.; Rutledge Realty Company, Incorporated;
Lawrence Leonard; Hoechst Cel'anese Corporation; BASF Inmont
Corporation; Homelite Division of Textron, Incorporated; Engraph,
Incorporated; Rexham Corporation; W. R. Grace & Company; Reeves
Brothers, Incorporated; and Chase Packaging Corporation, all of
whom the EPA has designated as Dotentially responsible parties
{PRPs) at the Site.
South Carolina Federal Savings Bank has certified in writing to
EPA that neither First Federal Savings Bank nor South Carolina
Federal Savings Baink conducted or permitted the generation,
transportation, storage, treatment, or disposal of any hazardous
substances at the Site. In addition, South Carolina Federal
Savings Bank has certified in writing that neither First Federal
Savings Bank nor South Carolina Federal Savings Bank contributed
to the release or threat of'release of hazardous substances at
the Site through any act or omission on the part of their
employees or agents.
The drums, solvents, and other hazardous substances found at the
Site, were generated, transported, stored, treated, disposed of,
or released by the operator of RHCC and other parties. None of
these operators, generators, transporters) or other parties were
agents or employees of First Federal Savings Bank or South
Carolina Federal Savings Bank.
Neither First Federal Savings Bank nor South Carolina Federal
Savings Bank had any contractual relationship with any party
relative to the operation of the Rock Hill Chemical Company, or
relative to the generation, transportation, storage, treatment,
disposal, or release of hazardous substances at this or any other
site.
On discovering that its property was contaminated, First Federal
Savings Bank conducted the state-required remediation of its
property promptly, in good faith, with due care, and at
considerable expense.
South Carolina Federal Corporation, the parent of South Carolina
Federal Savings Bank, was merged into First Union Corporation of
South Carolina; the parent of First Union National Bank of South
Carolina, oh January 15, 1993. South Carolina Federal Savings
Bank was merged, into First Union National Bank of South Carolina
on February 19, 1993.
First Union National Bank of South Carolina is the current owner
of the Site property located adjacent to the former RHCC
facility. First Union National Bank of South Carolina neither
owned the property at the time the contaminants were deposited,
nor rrmriurtfsd anv activities that would have contributed to the
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contamination in any way. The remainder of the Site property is
currently owned by Rutledge Realty Company, Incorporated.
The $150,000.00 payment that First Union National Bank of South
Carolina is required to make pursuant to the de minimis
Administrative Order on Consent is a minor portion of the total
past and? future response costs at the Site, which EPA, based upon
currently available information, estimates to be ten (10) million
dollars.
B. Enforcement History
SCDHEC conducted sampling investigations at the Site in January
and August, 1985, and in July and October, 1986. During the
investigations, soil groundwater, surface water, and sediment
samples were collected.
Based upon information supplied by SCDHEC, EPA proposed the Site
for inclusion on the National Priorities List (NPL) on June 24,
1988, and EPA finalized the Site on the NPL on February 16, 1990,
with a, ranking of 49.76.
On May 23, 1991, EPA issued special notice letters and
general/special notice letters pursuant to Section 122(e) of
CERCLA, 42 U.S.C. § 9622(e), along with CERCLA Section 104(e),
42 U.S.C. § 9604(e), information requests to all potentially
responsible parties (PRPs) listed on Appendix A. The special
notice' letters and general/special notice letters offered the
PRPs the opportunity to perform, finance or otherwise participate
in the RI/FS activities at the Site.
EPA received a "good faith" offer from the PRPs.to negotiate an
Administrative Order on Consent for conducting the RI/FS on July
29, 1991. EPA and the PRPs commenced negotiations pursuant to
Section 122(e) of CERCLA, 42 U.S.C. § 9622(e). On August 21,
1991, however, the PRPs notified EPA that they were unable to
allocate responsibility for the costs associated with the RI/FS
amongst themselves, and were not going to continue to negotiate
ror sign the Administrative Order on Consent for "the" RI/FS-.
On September 2S, 1991, EPA notified the PRPs that, pursuant to
Section 122(e) of CERCLA, 42 U.S.C. § 9622(e), the ninety (90)
day moratorium period to sign an Administrative Order on Consent
which would allow the, PRPs to conduct the RI/FS activities at the
Site had expired. EPA also notified the PRPs that EPA.was
conducting the RI/FS utilizing money from the Hazardous Substance
Superfund. The RI/FS is expected to be completed by the end of
1993.
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C. The Settling Potentially Responsible Party
First union National Bank of South Carolina
(Current Owner)
"P.O. Box 750
Rock Hill, South Carolina 29731
(803) 324-4224
Contact: Lee A. DeHihns, III
Alston & Bird
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309
(404)881-7151
EPA requested and received from South Carolina Federal Savings
Bank all documents in its possession (12 large binders) and-all
documents in First Union National Bank of South Carolina's
possession, concerning the property formerly owned by First
Federal Savings Bank and South Carolina Federal Savings Bank, and
currently owned by First Union National Bank of South Carolina.
In addition, EPA requested and received from South Carolina
Federal Savings Bank, documents in its possession (discovery,
pleadings, motions, etc.) relating.to its 1989 cost recovery
action against the following parties associated with th
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South Carolina Federal Savings Bank also has certified in letter
dated June 12, 1992, that First Federal Savings Bank conducted
the appropriate inquiry into the previous ownership and uses of
the property, consistent with good commercial and customary
practices of the time, and that it had neither actual or
constructive knowledge that the property had been used for the
generation, transportation, storage, treatment, or disposal of
any hazardous substances, as required by Section 122(g)(1)(B) of
CERCLA, 42 U.S.C. § 9622(g)(1)(B), and explained in the "Guidance
on Landowner Liability Under Section 107(a)(1) of CERCLA, and De
Minimis Settlements Under Section 122(g)(1)(B) of CERCLA, and
Settlements with Prospective Purchasers of Contaminated
Property," OSWER Directive Number 9835.9, dated June 6, 1989.
South Carolina Federal Savings Bank certified that when First
Federal Savings Bank discovered that its property was
contaminated, it cleaned up the contamination promptly, iiv-good
faith, and at considerable expense. Of the $307,850.00 First
Federal Savings Bank spent to conduct the removal, it has
recovered less than half from the responsible parties
(approximately $150,000.00. The exact settlement figure is
subject to a confidentiality agreement between the settling
PRPs).
D. Analysis of the Settling Potentially Responsible party
Liability under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C. § 9601 et
sea., as amended (CERCLA), is based upon the establishment of the
following elements: (1) a release or threatened release of a
hazardous substance has occurred; (2) the release or threatened
release was from a facility; and (3) the defendants are
potentially responsible parties (PRPs) as defined by CERCLA
Section 107(a), 42 U.S.C. § 9607(a).
EPA has documented the release of hazardous substances at the
Site and current sampling data indicates the presence of
Methyl ethyl ketone (MEK), toluene, ethyl acetate,
1,1>l-trichlocoethane, lead, cadmium, and chromium in the
groundwater at the Site. Each of these contaminants is a
hazardous substance as that term is defined in Section 101(14) of
CERCLA, 42 U.S.C. § 9601(14).
Section 101(9) of CERCLA, 42 U.S.C. § 9601(9), defines a
"facility" as, ". . . any site or area where a hazardous
substance has been deposited, stored, disposed of, or placed, or
otherwise come to be located . . . ." From 1960 to 1964,
Lawrence Leonard operated the RHCC, the former solvent
reclamation operation at the Site, and disposed of distillation
still bottoms, drum bottoms, and storage tank bottoms on the
surface of the facility property and later covered with fill dirt
and construction debris. Therefore, the Rock Hill Chemical
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Contpany is a facility as that term is defined in Section 101 {9)
Of CERCLA, 42 U.S.C. § 9601(9).
Pursuant to Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), PRPs
include: (1) current owners or operators of a facility; (2) past
owners or operators who owned or operated the facility at the
time hazardous substances were disposed at the facility;
(3) persons who arranged for the disposal of hazardous substances
(usually known as generators); and (4) persons who transported
hazardous substances and selected the site for disposal.
First Union National Bank of South Carolina, as a current owner
of a portion of the Site property, may be liable as a potentially
responsible party pursuant to Section 107(a)(1) of CERCLA,
42 U.S.C. S 9607(a)(1) .
Courts have consistently held that the standard of liability
imposed by Section 107(a), 42 U.S.C. § 9607(a), is strict.
B.F. Goodrich Company v. Harold Murtha. 958 F.2d 1192, 1198
(2d Cir. 1992). Section 107(b) of CERCLA, 42 U.S.C. § 9607(b),
however, provides the following four (4) affirmative defenses
which may be asserted by persons including a current landowner:
1.) act of God;
2.) an act of war;
3.) an act or omission of a third party;
4.) any combination of the foregoing.
Of the defenses available to a defendant liable under Section
107(a) of CERCLA, 42 U.S.C. § 9607(a), EPA believes that one is
relevant in the instant matter; the third party defense. Under
the third party defense set forth in Section 107(b)(3) of CERCLA,
42 U.S.C. § 9607(b)(3), a defendant is not liable if it is
established by a preponderance of the evidence that the release
or threat of release of hazardous substances was caused by third
parties other than those with whom a defendant has a direct or
indirect contractual relationship, assuming that the defendant
has also exercised due care under the circumstances and has taken
precautions against foreseeable acts or omissions by"the third
parties, 42 U.S.C. § 9607(b)(3).
EPA believes that the settling party has a potentially strong
third party defense to. liability. The settling party will likely
be able to prove that: (1) the settling party did not have a
direct contractual relationship with the operator of RHCC or any
of its customers during the time that RHCC operated, or anytime
thereafter; and (2) the settling party did not contribute to the
release or threat of release of hazardous substances at the Site.
Furthermore, the following equitable considerations are relevant
to the settling party's defense: (1) the settling party cleaned
up the contamination on its property at its own expense and
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thereafter, recovered only a portion of its cleanup costs from
the non-settling PRPs; and (2) there is no contamination
currently present on the settling party's portion of the Site
property.
As to the third party defense raised above, EPA has no evidence
to dispute the settling party's claim that they never contracted,
conducted, or permitted the generation, transportation, storage,
treatment, or disposal of hazardous substances at the Site.
Indeed, all available evidence indicates that the contamination
was causedsolely by third parties with whom the settling party
had no contractual dealings, whatsoever. As to the third party
defense, the settling party, for the reasons outlined below,
represents a strong argument -that it acted with due care and took
precautions against any foreseeable acts or omissions.
The evidence available to EPA indicates that, First Federal
Savings Bank purchased lots adjacent to the RHCC in 1972 from
Rutledge Realty Company, Incorporated, eight (8) years after RHCC
was destroyed by fire. Before purchasing the property, officers
and agents of the First Federal Savings Bank physically inspected
the property. South Carolina Federal Savings Bank, as successor
through a merger with First Federal Savings Bank, has certified
in writing that First Federal Savings Bank found no evidence of
drum disposal or other indications of contamination through
observation at that time.
First Federal Savings Bank made no use of its property for twelve
(12) years until 1984, when it was preparing to construct a
branch office on the lots it purchased in 1972 and discovered
that its property,was contaminated. At the time of the 1984
discovery, First Federal Savings Bank promptly notified SCDHEC
and employed consultants'to analyze the property and determine
the extent of the contamination.
Even though First Federal Savings Bank's consultants discovered
distillation still bottoms, metal drums, and other hazardous
substances buried beneath?the^surface of First Federal Savings
Bank's property, EPA believes, that the settling party can
demonstrate in court that First Federal Savings Bank acted with
due care and took precautions against any foreseeable acts or
omissions before purchasing the property currently owned by the
settling party.
In U.S. v. A & N Cleaners and Launderers. Inc., 788 F. Supp. 1317
(S.D.N.Y. 1992), the court held that the due care and precautions
requirement "clearly contemplates some degree of awareness by the
defendant of the potential for release. ..." The court added
that it would be difficult to comprehend how someone could take
due care or take precautions ". . . if it is unaware that any
hazardous substance is being used or disposed of." Id. at 1329.
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EPA believes that it is unlikely that a court would find that the
sSettling party knew or should have known that hazardous
substances were disposed on its property, especially since the
First Federal Savings Bank did not know, and had no reason to
Joiow, that RHCC-had operated at the Site from 1960 to 1964, when
it was totally destroyed by a fire in 1964 (eight (8) years
prior to First Federal Savings Bank's 1972 real estate purchase),
and especially since a lease agreement was never memorialized in
writing, or recorded in the Registry of Deeds.
In addition, First Federal Savings Bank purchased the property
eight (8) years before CERCLA was even promulgated, so that even
if First Federal Savings Bank knew that RHCC had operated at the
Site and disposed of hazardous substances on the portion of the
property that it eventually purchased, it could not know that in
eight (8) years it would be a liable party under CERCLA.
The fact that EPA does not have any evidence to show that the
settling party had any actual or constructive knowledge of any
hazardous waste disposal at the Site, raises an innocent
landowner defense as set forth in Section 101(35) of CERCLA,
42 U.S.C. § 9601(35), which may ultimately prevent EPA from
establishingLany liability on the part of the settling party.
This defense is applicable if the settling party establishes by a
preponderance of the ^evidence that the requirements of Section
107(b)(3)(a) and (b), 42 U.S.C. § 9607(b)(3)(a) and (b), are
'satisfied and that:
the real property . . . was acquired by the defendants after
the disposal or placement of the hazardous substances on, in
or at the facility, arid one or more of the circumstances
described in clause (i), (ii), or (iii) is also established
by the preponderance of the evidence:
(i) At the time the defendant acquired the facility the
defendant did not know and had no reason to know that any
hazardous substance which is the subject of the release or
threatened release was disposed of on, in or at the facility
.... 42 U.S.C. § 9601(35)(A).
Section 101(35)(B), 42 U.S.C. § 9601(35)(b), further specifies
that to establish that a defendant had no reason to know, as
provided in clause (i) of subparagraph (A),'the defendant must
have undertaken/ at the time of acquisition, all appropriate
inquiry into the previous ownership and uses of the property
consistent with good or customary practice in an effort to
minimize liability.
The settling party will be able to show that it acquired the
property eight (8) years after RHCC had been destroyed by fire
and RHCC had ceased operations. In addition, EPA believes that
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the settling party will be able to demonstrate that the property
that it. sought to purchase was adjacent to the property where
RHCC conducted its operations, and that it physically inspected
its property consistent with the normal business practices at
that time, and that it did not know and had no reason to know
that third parties had buried hazardous substances on its
property.
Based on the above, EPA believes that there are significant
litigation risks in initiating a cost recovery action against the
settling party and proceeding to trial. In addition, EPA
believes that it has sufficient evidence to use its enforcement
authority under CERCLA to insure that the remaining responsible
parties reimburse the EPA for all of its past response cost, as
well as, insure that the remaining responsible parties perform or
finance all future response activities at the Site.
B. Analysis of Non-Settling PRPs
An EPA contractor, TechLaw, Incorporated (TechLaw), conducted a
responsible party search to identify parties associated with the
Site and submitted its findings in a PRP Search Report on
December 29, 1988. The PRP Search Report identified PRPs at the
Site based, upon interviews with public and private sector
individuals with knowledge about the Site, and included a title
search of the Site property, as well as information on the
corporate, historical, and financial status of the identified
PRPs.
The following analysis of the non-settling PRPs is based upon
TechLaw's December 29, 1988, PRP Search Report. The information
has been updated by EPA, where possible.
1. Current Owner
Rutledae Realty Company, Incorporated
P.O. Box 2685
Rock Hill, South Carolina 29730
(no phone number found)
Contact: William C. Rutledge, Jr., President
2270 Cherry Road
Rock Hill, South Carolina 29730
Information obtained by TechLaw indicates that Rutledge Realty
Company, Incorporated, is the current owner of a portion of the
Site property and was the owner of the property when hazardous
wastes were disposed of at the Site.
According to the title search conducted for the Site property, as
of April 13, 1988, Rutledge Realty Company, Incorporated, owns a
-portion of the Site property (lots 26 through 45; see Appendix
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D) . Rutledge Realty Company, Incorporated, is therefore listed
as a "current owner" pursuant to Section 107(a)(1) of CERCLA,
42 U.S.C. § 9607(a)(1).
.Information.obtained by TechLaw also indicates that Rutledge
Realty Company, Incorporated, owned portions of the Site property
during the time that hazardous substances were disposed of at the
Site. Rutledge Realty Company, Incorporated, bought the property
in two (2) conveyances, the first on August 28, 1962, from
William C. Rutledge, Jr., and the second on May 22, 1963, from
H.B. Powell.
Mr. Lawrence Leonard, the only operator at the Site, indicated in
an October 22, 1986, interview with representatives from Hoechst
Celanese (Appendix B), that RHCC began operating at the Site in
1960, but that it ceased operations in October 1964 after a fire
destroyed the facility. While it was in operation, RHCC stored
and processed substances at the Site, including MEK, ethyl
alcohol, and isopropyl alcohol, hexane, methylene chloride, and
chlorinated solvents; all of these are hazardous substances
according to 40 C.F.R. §§ 262.21 and'302.4.
Mr. Leonard told TechLaw that during the 1964 fire, drums of
chemicals stored on-site had exploded, releasing their contents
at the Site. He also said that drums and tanks, containing
substances.such as those listed above, were left at the Site
after RHCC dissolved, and that several of the tanks still remain
at the Site (Appendix C). Therefore, Rutledge Realty Company,
Incorporated is also listed as a "prior owner" pursuant to
Section 107(a)(2) of CERCLA, 42 U.S.C. § 9607(a)(2).
2. Past Owner/Past Operator
William C. Rutledge, Jr.
1486 Greenwood Lane
Rock Hill/ South Carolina 29730
(803) 366-6555
Information obtained by TechLaw indicates that Mr. Rutledge Was
an operator at the Site during the time that hazardous substances
were disposed of there, and that he was an owner of Site property
during this time.
According to Mr-, Leonard's October 22, 1986, interview with
Hoechst Celanese representatives, Mr. Leonard and William C.
Rutledge, Jr., operated RHCC at the Site as a full partnership
beginning in 1960.and ending after a fire destroyed the facility
at the Site "in October 1964. While it was in operation, RHCC
¦ stored and processed substances at the Site, including MEK, ethyl
alcohol," and isopropyl alcohol, hexane, methylene chloride, and
chlorinated solvents; all of these are hazardous substances
according to 40 C.F.R. §§ 262.21 and 302.4.
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Mr. Leonard told TechLaw that during the 1964 fire, drums of
chemicals stored on-site had exploded, releasing their content at
the Site. He also said that drums and tanks, containing
substances such as those listed above, were left at the Site
after RHCC dissolved, and that Mr. Rutledge remained in control
of these drums and-tanks, as well as, the Site in general.
Several of these tanks still remain at the Site. William C.
Rutledgre, Jr., is therefore listed as a "prior operator" pursuant
to Section 107(a)(2) of CERCLA, 42 U.S.C. § 9607(a)(2).
In addition, according to the title search conducted for the Site
property, Williain C. Rutledge, Jr., owned portions of the Site
property between June 16, 1954, when he bought the first portion,-,
and August 28, 1962, when he sold the property to Rutledge Realty
Company. EPA also has evidence that RHCC operated on Mr.
Rutledge's property from 1960 to 1964, and that Lawrence Leonard,
the operator of RHCC, disposed of hazardous substances during
RHCC's period of operation. Therefore, Mr. Rutledge is also
listed as a "prior owner" pursuant to Section 107(a)(2) of
CERCLA, 42 U.S.C. § 9607(a)(2).
3. Past Operator
Lawrence Leonard
520 Sumter Avenue
Rock Hill, South Carolina 29730
(803) 366-8055
According to Mr. Leonard's October 22, 1986, interview with
Hoechst Celanese representatives, Mr. Leonard and William
Rutledge operated RHCC at the Site as a full partnership. RHCC
began operating at the Site in 1960 and ceased after a fire
destroyed the facility at the Site in about October 1964. While
it was in operation, RHCC stored and processed substances at the
Site, including MEK, ethyl and isopropyl alcohol, hexane,
methylene chloride, and chlorinated solvents; all of these are
hazardous substances according to 40 C.F.R. £§262.21 and 302.4.
•
Mr. Leonard told TechLaw that during the 1964 fire, drums of
chemicals stored on-site exploded releasing their contents at the
Site. He also said that drums and tanks, containing substances
such as those listed above, were left at the Site after RHCC
dissolved, and that several.of the tanks still remain at the Site
(Appendix C). Mr. Leonard is therefore listed as a 'prior
operator" at the Site under Section 107(a)(2) of CERCLA,
42 U.S.C. § 9607(a)(2).
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4. Generators
i. BASF (Inmont) Corporation
(Formerly Inmont Corporation)
8" Campus Drive
Parsippany, New Jersey 07045
(201) 397-2700
Contact: Timothy A. Vanderver, Jr.
Patton, Boggs & Blow
2550 M Street, N.W.
Washington, D.C. 20037
Information obtained by TechLaw indicates that Interchemical
Corporation (formerly known as Inmont Corporation and now known
as BASF (Inmont) Corporation through a merger with BASF
Corporation) , arranged with RHCC for the treatment of certain
hazardous substances that have subsequently been found at the
Site.
Mr. Lawrence Leonard, the only operator at the Site, indicated in
an October 22, 1986, interview with representatives from Hoechst
Celanese (Appendix B) that he processed chemicals at the Site
that had been generated by "Interchemical,0 which, he says, was
bought out by BASF (Inmont) Corporation. Specifically, Mr.
Leonard said that between 1961 and 1964 he received forty (40) to
fifty (50) drums per week of various waste inks and wash
solvents, containing MEK, toluene and alcohols. MEK and toluene
are hazardous substances, according to 40 C.F.R. § 302.4.
Sampling conducted by EPA in August 1985, indicates that toluene
was present in the five (5) on-site storage tanks. Additional
sample analyses by Floyd & Davis, dated November 13, 1986, showed
that MEK, toluene, and isopropyl alcohol were among the chemicals
present in the five (5) tanks. Toluene was also detected in the
contaminated soil that was removed from the Bank's property. All
of these substances are hazardous according to 40 C.F.R.
§§ 262.21 and 302.4.
Therefore, BASF (Inmont) Corporation is listed as a •generator"
pursuant to Section 107(a)(3) of CERCLA, 42 U.S.C. § 9607(a)(3).
ii. CTS Corporation
905 West Boulevard North
Elkhart, Indiana 46514
Contact: Elizabeth Bottorff Ahlemann
Corporate Counsel
CTS Corporation
905 West Boulevard North
Elkhart, Indiana 46514
(219) 293-7511
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Mr. Leonard indicated in his October 22, 1986, interview with
Hoechst Celanese representatives that he processed approximately
seventy (70) to one hundred (100) gallons of waste material from
CTS Corporation-at the Site. The material consisted of
contaminated perchloroethylene or 1,1,1-trichloroethane. The
reclaimed solvents were all returned to CTS Corporation,
according to Mr. Leonard. Perchloroethylene and
1,1,1-trichloroethane are both listed as hazardous substances in
40 C.F.R. § 302.4.
Sampling conducted by EPA in August, 1985, indicated that
1,1,1-trichloroethane (a hazardous substance according to
40 C.F.R. § 302.4) was present in a drum on the Site property.
According to sample analyses by Floyd & Davis, dated November 13,
1986, tetrachloroethene was among the chemicals present in the
five (5) tanks on-site. There is no substance listed as —
*tetrachloroethene" in,either 40 C.F.R. § 302.4 or the Condensed
Chemical Dictionary; however, there is a hazardous substance
listed as "1,1,2,2-tetrachloroethene" which is a regulatory
synonym for tetrachloroethylene, also known as perchloroethylene.
.Therefore, CTS Corporation is listed as a "generator" pursuant to
Section 107(a)(3) of CERCLA, 42 U.S.C. § 9607(a)(3).
iii. Chase Packaging Corporation. Strawberry Hill Plant
3055 Sweeten Creek Road
Asheville, North Carolina 28803
(704) 274-1611
Contact: Alexa D. Perry
Counsel
Union Camp Corporation
1600 Valley Road .
Wayne, New Jersey 07470
(201) 628-2488
Union Camp Corporation,
(Parent Corporation)
1600 Valley Road
Wayne; New Jersey 07470
. (201) 628-2000
Mri. Leonard indicated in his October 22, 1986, interview with
Hoechst Celanese representatives that he processed three (3) or
four (4) shipments (about thirty two (32) drums each) of printing
wastes from the Strawberry Hill Plant in Asheville, North
Carolina.1 Mr. Leonard stated in his October 22, 1986, interview
that he believed that this substance wais MEK-based. MEK is a
hazardous substance, according to 40 C.F.R. § 302.4.
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Sample analyses by Floyd & Davis, dated November 13, 1986, showed
that MEK was among the chemicals present in the five (5) tanks
on-site. MEK is a hazardous substance, according to
40 C.F.R. § 302.4.
Therefore, the Strawberry Hill Plant of Chase Packaging
Corporation is listed as a "generator" pursuant to Section
107(a)(3) of CERCLA, 42 U.S.C. § 9607(a)(3).
iv. Bnqraph, Incorporated. Package Products Division
1930 Camden Road
Charlotte, North Carolina 28203
(704) 377-2691
Contact: Edwin Williamson
Hunton & Williams
Nations Bank Plaza
Suite 4100
600 Peachtree Street, N.E.
Atlanta, Georgia 30326
(404) 888-4000
Enqraph, Incorporated
(Parent Corporation)
2635 Century Parkway
Suite 900
Atlanta, Georgia 30345
(404) 329-0332
Mr. Leonard indicated in his October 22, 1986, interview with
Hoechst Celanese representatives that he processed printing ink
wastes from Package Products on-site. The three (3) or four (4)
truckloads of this waste consisted of contaminated ethyl alcohol
and isopropyl alcohol. The reclaimed solvent mixtures were sold
by Mr. Leonard to Interchemical (now BASF (Inmont) Corporation),
because Package Products, Incorporated, was unable use it. Both
ethyl alcohol and isopropyl alcohol are hazardous substances,
according to 40 C.F.R. §§ 262.21 and 302.4.
According to sample analyses by Floyd & Davis, dated November 13,
1986, isopropyl^ alcohol was among the chemicals present in the
five (5) tanks on-site. Isopropyl alcohol has a flash point
below sixty (60) degrees Celsius (according to Condensed Chemical
Dictionary) and is therefore classified as a hazardous substance,
according to 40 C.F.R. § 2 62.21.
Therefore, Engraph, Incorporated, Package Products Division, is
listed as a "generator" pursuant to Section 107(a)(3) of CERCLA,
42 U.S.C. § 9607(a)(3).
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v. FMC Corporation. Lithium Division
P.O. Box 3925
Gastonia, North Carolina 28053
449 North Cox Road
Sastonia, North Carolina 28054
(704) 867-8371
Contact: Les Oakes
King & Spalding
191 Peachtree Street
Atlanta, Georgia 30303
{404)572-5100
FMC Corporation is the parent corporation of its Lithium Division
and in the past has represented its subsidiary's interest in
dealing with EPA regarding this Site.
FMC Corporation
(Parent Corporation)
1735 Market Street
Philadelphia, Pennsylvania 19103
(215) 299-6000
Mr. Leonard indicated in his October 22, 1986, interview with
Hoechst Celanese representatives that he processed a lithium
waste from FMC Corporation's Lithium Division at the Site.
Reclaimed hexane and lithium hydroxide solution were returned to
FMC Corporation, Lithium Division. Hexane has a flash point
below,sixty (60) degrees Celsius (according to the Condensed
Chemical Dictionary), and is therefore a hazardous substance,
according to 40 C.F.R. § 262.21. Lithium hydroxide is
characterized as toxic in the Condensed Chemical Dictionary,
though it does not specifically qualify as a hazardous substance
according to 40 C.F.R. §§ 262.21 or 302.4.
In a letter dated October 13, 1986, FMC Corporation informed
Carol Walsh, EPA's on-scene coordinator for the removal action at
the Site, that its Lithium Division ("Lithco") had sent
approximately forty (40) to sixty (60) 55-gallon drums' of waste
material to'the Site. The waste material was "metal washings
composed primarily of hexane and mineral oil," sent to Rock Hill
Chemical Company on a test basis, for regeneration and return to
Lithco. The total quantities of metal washing constituents was
estimated as follows:
Hexane (gals.) 1,500-2,200
Mineral Oil (gals.) 750-1,100
Lithium Metal (lbs.) Trace-Trace
Lithium Oleate (lbs.) Trace-Trace
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According to the letter and its supporting documents,
approximately 1,500 gallons of reprocessed hexane was returned to
Lithco as of November 1964.
Also, FMC Corporation, Lithium Division, stated that it believed
that approximately an additional ten (10) drums of "Butyllithium
Mud" was shipped to RHCC for regeneration and return. The
material resulted from the butyllithium production, process. Ten
(10) drums of this "mud" is believed to contain the following
constituents:
1,500 lbs. Lithium Chloride
250 gals. Hexane
60 lbs. . Lithium Metal
120 lbs. Filter Aid (diatomaceous earth)
and a "small" quantity of Octane
RHCC dissolved the muds and returned the Lithium Chloride-Lithium
Hydroxide brine to Lithco, according to the supporting documents
to this letter. Both hexane and octane have flash points below
sixty (60) degrees Celsius (according to the Condensed Chemical
Dictionary) and are therefore classified as hazardous substances
according to 40 C.F.R. § 262.11.
According to sample analyses by Floyd & Davis, dated November 13,
1986, hexane was among the chemicals present in the five (5)
tanks on-site. Hexane has a flash point less than sixty (60)
degrees Celsius (according to the Condensed Chemical Dictionary).
and is therefore classified as a hazardous substance, according
to 40 C.F.R. § 262.21.
Therefore, FMC Corporation, Lithium Division, is listed as a
"generator" pursuant to Section 107(a)(3) of CERCLA, 42 U.S.C.
§ 9607(a)(3).
vi. Hoechst Celanese Corporation,
Celanese Fiber Operations
1250 W. Mockingbird
. P.O. Box 47320
Dallas, Texas 75247
(214) 689-4000
Contact: Phillip L. Conner
Ogletree, Deakins, Nash, Smoak & Stewart
300 North Main Street
P.O. Box 2757
Greenville, South Carolina 29602
(803) 271-1300
Mr. Leonard indicated in his October 22, 1986, interview with
Hoechst Ceianese representatives that he processed chemicals at
the Site that had been generated by Celanese Fiber Operations
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(Celanese). Specifically, Mr. Leonard said that from 1960 to
1961, he received between 60,000 and 80,000 gallons of mixture of
waste oil, methylene chloride, and methanol from Celanese's Arnel
60 process. However, he returned only 10,000 gallons of
reclaimed oil CO Celanese.
In addition to these wastes, Celanese generated 3,500 gallons of
contaminated formaldehyde to be processed at the Site, according
to Mr. Leonard. Mr. Leonard said that he successfully reclaimed
1,500 gallons of this substance but returned the remaining
unfiltered formaldehyde. Formaldehyde is a hazardous substance,
according to 40 C.F.R. § 302.4.
Also, Mr. Leonard processed fifteen (15) to twenty (20) drums of
coning oil, generated by Celanese, and he stated that it had been
frozen and separated. Mr. Leonard said he heated and re-mixed it
at the Site, then returned it to Celanese. However, there-is no
evidence that this coning oil contained any substances that are
hazardous under CERCLA.
Sampling conducted by EPA in August 1985, indicated the presence
of methylene chloride in the on-site tanks. Also, according to a
sample analyses by Floyd & Davis, dated November 13, 1986,
methylene chloride was among the chemicals present in the five
(5) tanks on-site. Methylene chloride is listed as a hazardous
substance in 40 C.F.R. § 302.4.
Therefore, Celanese Fiber Operations is listed as a "generator"
pursuant to Section 107(a)(3) of CERCLA, 42 U.S.C. § 9607(a)(3).
vii. Homelite Division of Textron, Incorporated
P.O. Box 7047
14401 Carowinds Boulevard
Charlotte, North Carolina 28241
(704) 588-3200
Contact: Thomas H. Griswold
Division Counsel
Homelite Division of Textron,
Incorporated
P.O. Box 7047
Charlotte, North Carolina 28241
(704) 588-3200
Textron. Incorporated
(Parent Corporation)
40 Westminster Street
Providence, Rhode Island 02903
Contacts: Beverly F. Dolan, President
Thomas D. Soutter, General Counsel
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Mr. Leonard indicated in his October 22, 1986, interview with
Hoechst Celanese representatives that he processed MEK waste
material from Homelite at the Site. Mr. Leonard stated that he
picked up drums of waste weekly, and that Homelite was one of his
"longest and beet customers." All of the reclaimed MEK was
returned to Homelite. MEK is a hazardous substance, according to
40 C.F.R. § 302.4.
In a letter, dated November 19, 1986, Homelite Division of
Textron informed Carol Walsh, an EPA on-scene coordinator for the
removal activities at the Site, that "it is believed . . . that
from late 1963 to early 1965, Homelite contracted with Lawrence
Leonard for the reprocessing of methylethyl ketone at the rate of
approximately one (1) fifty-five (55) gallon drum per week. The
materials contained up to two percent (2%) of a 3M cement
product, EC 847. The arrangement called for Mr. Leonard to pick
up the material, reprocess it and sell the reprocessed material
back to Homelite." Homelite contends that it was "unaware of the
destination of the unprocessed materials." Again, MEK is listed
as a hazardous substance in 40 C.F.R. § 302.4.
According to sample analyses by Floyd & Davis, dated November 13,
1986, MEK was among the chemicals present in the five (5) tanks
on-site. MEK is a hazardous substance, according to
40 C.F.R. § 302.4.
Therefore, Homelite Division of Textron, Incorporated, is listed
as a "generator" pursuant to Section 107(a)(3) of CERCLA,
42 U.S.C. § 9607(a) (3).
viil. Reeves Brothers, Incorporated
1271 Avenue of the Americas
New York, New York 10020
(212) 315-2323
Contact: R. Howard Grubbs
Womble, Carlyle, Sandridge & Rice
P.O. Drawer 84
Winston-Salem, North Carolina 27101'
(919) 721-3537
Mr. Leonard indicated in his October 22, 1986, interview with
Hoechst Celanese representatives that he processed about twenty
eight (28) drums of polyethylene solids containing MEK from
Reeves Brothers, Incorporated at the Site. MEK is a hazardous
substance according to 40 C.F.R. § 302.4.
According to sample analyses, dated November 13, 1986, MEK was
among the chemicals present in the five (5) tanks on-site. MEK
is a hazardous substance according to 40 C.F.R. § 302.4.
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Therefore, Reeves Brothers, Incorporated, is listed as a
"generator" pursuant to Section 107(a)(3) of CERCLA, 42 U.S.C.
§ 9607(a)(3).
ix. Hexham Industries Corporation
(Formerly Riegal Paper Corporation)
P.O. Box 2528
Charlotte, North Carolina 28247
7315 Pineville-Matthews Road
Charlotte, North Carolina 28226
(704) 541-2800
Contact: Kiran H. Mehta
Kennedy, Covington, Lobdell & Hickman
3300 NCNB Plaza
Charlotte, North Carolina 28280-8082
(704) 331-7437 _
Mr. Leonard indicated in his October 22, 1986, interview with
Hoechst Celanese representatives that he processed printing waste
material from Riegal Paper Corporation (which was purchased by
Rexham Industries Corporation in 1986) at the Site. The waste
material consisted of MEK and a mixture of different solvents.
Mr. Leonard said that he only sold a portion of the reclaimed MEK
back to Riegal Paper Corporation; he sold the rest of the
reclaimed MEK to Homelite Division of Textron.
Mr. Leonard also indicated that Riegal Paper Corporation (or
Rexham Industries Corporation) was one of his larger customers
with regard to the volume of that company's waste brought to the
Site. MEK is a hazardous substance, according to 40 C.F.R.
§ 302.4.
According to sample analyses by Floyd & Davis, dated November 13,
1986, MEK was among the chemicals present in the (5) five tanks
on-site. MEK is a hazardous substance according to
40 C.F.R. § 402.4.
Therefore, Rexham Industries Corporation is listed as a
"generator" pursuant to Section 107(a)(3) of CERCLA,
42 U.S.C. § 9607(a)(3).
x. W.R. Grace & Company, Crvovac Division
4425 Randolph Road
Suite 213
Charlotte, North Carolina 28211
(704) 364-9611
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W.R. Grace & Company. Incorporated
(Parent Corporation)
1114 Avenue of the Americas
New York, New York 10036-7794
-<212) 819-5500
ronhar.t-.; Richard Willis
Nelson, Mullins, Reilly, & Scarborough
P.O. Box 11070
Columbia, South Carolina 29211
(803) 799-2000
Mr. Leonard indicated in his October 22, 1986, interview with
Hoechst Celanese representatives that he processed approximately
seventy (70) drums of waste material from W.R. Grace's Cryovac
Division at the Site. The waste material consisted of isopropyl
alcohol, normal propyl alcohol, and ethyl acetate (all hazardous
according to 40 C.F.R. § 302.4), contaminated with printing inks.
According to a laboratory report dated November 13, 1986,
isopropyl alcohol and ethyl acetate were among the chemicals
present in the five (5) tanks on-site. Ethyl acetate is listed
as a hazardous substance in 40 C.F.R. § 302.4, and isopropyl
alcohol is classified as a hazardous substance according to
40 C.F.R. § 261.21, because its flash point is below sixty (60)
degrees Celsius (according to the Condensed Chemical Dictionary).
Therefore, the Cryovac Division of W.R. Grace & Company is listed
as a "generator" pursuant to Section 107(a)(3) of CERCLA,
42 U.S.C. § 9607(a)(3).
P. Other Parties Associated with the Site
i. Burlington Industries, Incorporated
P.O. Box 21207
Greensboro, North Carolina 27420
(919) 379-2000
Contact: Barbara A. Hatcher
Assistant General Counsel
Legal Department
Burlington Industries, Incorporated
P.O. Box 21207
Greensboro, North Carolina 27420
(919) 379-2246
Mr. Leonard indicated in his October 22, 1986, interview with
Hoechst Celanese representatives that he processed contaminated
methanol from "Burlington." However, he could not recall the
contaminants in the methanol, and though methanol is a hazardous
substance, according to 40 C.F.R. § 304.2, it has not been
detected as a contaminant at the Site.
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- 23 -
EPA is currently investigating this PRP's liability with respect
to the Site, and is continuing to gather further evidence. At
this time, however, EPA does not have sufficient evidence to name
Burlington Industries, Incorporated, as a PRP at the Site.
ii. Walter Weal
608 Woodbridge Road
Rock Hill, South Carolina 29730
(803) 328-9797
According to Mr. Leonard, Walter Neal, Mr. Leonard's former
employee, entered into a partnership with William C. Rutledge,
Jr., after RHCC dissolved, and was involved in disposing of the
hazardous substances and other wastes that were on-site after the
fire. TechLaw has been unable to contact Mr. Neal by telephone
to question him about his involvement with the Site. Mr. Neal
and Mr. Rutledge operated wider the>name "Industrial Chemical
Company;" Mr. Leonard said, which has since been purchased by
•ThermalKem."
ThermalKem
(Stablex South Carolina, Inc.)
454 South Anderson Road
Rock Hill, South Carolina 29730
(803) 329-9690
EPA is currently investigating this PRP's liability with respect
to the Site, and is continuing to gather further evidence. At
this time, however, EPA does not have sufficient evidence to name
Thermalkem as a PRP at the Site.
. c:f" .
iii. Catawba Asphalt Paving Company
Red River Road
Rock Hill, South Carolina 29730
(803) 324-1188
According to the title search conducted for this Site, Catawba
Asphalt Paving Company owned property adjacent to what has been
defined as the Site property prior to the establishment of RHCC.
Though there is.no evidence that Catawba Asphalt Paving Company
contributed to the contamination at the Site, this company may
have engaged in industrial activities near the Site which
generated hazardous substances.
EPA is currently investigating this PRP's liability with respect
to the Site, and is continuing to gather further evidence. At
this time, however, EPA does not have sufficient evidence to name
Catawba Asphalt Paving Company as a PRP at the Site.
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- 24 -
G. Ten Point Settlement Analysis
Consistent with EPA policy, the following discussion evaluates
the de minimis settlement described above based upon
consideration of the settlement criteria that are outlined in the
memorandum entitled, "Interim CERCLA Settlement Policy announced
as part of EPA's Hazardous Waste Enforcement Policy," 50 Fed.
Reg. 5034 (February 5, 1984).
1. Volume of Wastes Attributable to Bach PRP
The Rock Hill Chemical Company did not maintain records or
manifests of the waste it received from the ten (10) generators
identified for the Site. In addition, the PRPs have not
submitted any conclusive information regarding the amount of
waste sent to the Site. Other than the interview statements made
by Mr. Lawrence Leonard on October 22, 1986, with representatives
from Hoechst Celanese, EPA has no information with respect to the
volume of waste attributable to each of the ten (10) generator
PRPs.
In the context of the de minimis landowner settlement with the
First Union National Bank of South Carolina pursuant to Section
122(g)(1)(B) of CERCLA, 42 U.S.C. § 9622(g)(1)(B), if EPA had any
information that First Union National Bank of South Carolina was
a generator, settlement under Section 122(g(l)(B) of CERCLA,
42 U.S.C. § 9622(g)(1)(B), would not be appropriate. EPA has no
evidence that First Union National Bank of South Carolina
generated any wastes which were disposed of at the Site.
2. Nature of the Wastes Contributed
i. BASF (Inmont) Corporation
Printing inks, wash solvents, methyl ethyl ketone,
and toluene.
ii. Burlington Industries, Incorporated
Unknown
iii. Union Camp Corporation for Chase Packaging
Corporation
Methyl ethyl ketone (MEK) and printing inks.
iv. CTS Corporation
Unknown
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v. Engraph Incorporated, Package Products Division
Printing inks (ethyl and isopropyl alcohol base).
vi. FMC Corporation, Lithium Division
Lithium, hexane, and mineral oils.
vii. Hoechst Celanese Corporation,
Celanese Fiber Operations
Methylene chloride/ methanol, mineral oil, coning
oil, and formaldehyde.
viii. Homelite Division of Textron, incorporated
Methyl ethyl ketone (MEK).
ix. Reeves Brothers, Incorporated
Methyl ethyl ketone (MEK) and polyethylene solids.
x. Rexham Industries Corporation
(formerly Riegal Paper Corporation)
Methyl ethyl ketone (MEK), toluene, low molecular
weight esters, chlorinated material, and printing
inks.
xi. W.R. Grace and Company, Cryovac Division
Ethyl acetate, isopropyl alcohol, normal-propyl
alcohol, Methyl cellosolve, 1,1,1-trichloroethane,
ethyl alcohol, methanol, methyl isobutyl ketone,
2-nitropropane, titanium dioxide, acetone
tetrahydrofuran, lead, cadmium, and chromium.
3. Strength of Evidence Tracing the Wastes at the Site to
the Settling PRP
The Interim Settlement Policy predated the SARA amendments to
CERCLA and therefore, does not address de minimis or innocent
landowner issues. EPA's experience at that time was with groups
composed of predominately waste generators. To the extent that
tracing Site wastes to the settling party would in effect make it
ineligible for a de minimis landowner settlement, however, the
issue of waste disposal and/or generation by the First Union
National Bank of South Carolina is relevant.
The Rock Hill Chemical Company, however, did not maintain records
or manifests of the waste it received from the PRPs that EPA has
identified for the Site. All of the information EPA has received
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- 26 -
with respect to the waste present at the Site is based upon
information from Mr. Lawrence Leonard, the former operator of the
Rock Hill Chemical Company. EPA has a copy of a transcript from
an October 22, 1986, interview that Mr. Leonard conducted with
representatives ""from Hoechst Celanase.
With respect to the First Union National Bank of South Carolina,
EPA has'evidence which indicates that it is the current owner of
property adjacent to the Site. In addition, EPA has received
information from the First Union National Bank that it did not
generate or dispose of the wastes at the Site. EPA has no
evidence that First Union. National Bank of South Carolina
generated any wastes which were disposed of at the Site.
4. Ability of Non-Settling prpb to Pay
1. Current Owner
Rutledge Realty Company, Incorporated
To date, EPA has been unable to obtain any financial information
from Rutledge Realty Company, Incorporated. EPA is continuing
its efforts to obtain financial information on Rutledge Realty
Company, Incorporated. Based upon a report obtained.by Techlaw
from the York County Assessor's Office, dated September 26, 1988,
Rutledge Realty Company, Incorporated, owns twenty seven (27)
items of real estate in York County, with a total assessed value
(in 1988) of $1,419,800.00.
Before naming Rutledge Realty Company, Incorporated, as a PRP in
future response activities, EPA will update and verify all
financial information on Rutledge Realty Company, Incorporated.
2. Past Owner/Past Operator
William C. Rutledge, Jr.
To date, EPA has been unable to obtain any financial information
from William C. Rutledge, jr. EPA is continuing its efforts to
obtain financial information on William C. Rutledge, Jr. Based
upon a report obtained by Techlaw from the York County Assessor's
Office, dated September 26, 1988, William C. Rutledge, Jr., and
his.wife, Martha C. Rutledge, own thirty three (33) items of real-
estate in York County, including land, houses, and trailers, with
a total assessed value (in 1988) of $302,000.00.
Before naming William C. Rutledge, Jr., as a PRP in future
response activities, EPA will -update and verify all financial,
informatibn on William C. Rutledge, Jr.
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- 27 -
3. Past Operator
Lawrence Leonard
To date, EPA has been unable to obtain any financial information
from Lawrence Leonard. EPA is continuing its efforts to obtain
financial information on Lawrence Leonard. Based upon a report
obtained by Techlaw from the York County Assessor's Office, dated
September 26, 1988, Lawrence Leonard, and W. Teibelle own one {1)
item of real estate in York County with an assessed value (in
1988) of $61,500.00. Mr. Leonard resides on this property.
Before naming Lawrence Leonard as a PRP in future response
activities, EPA will update and verify all financial information
on Lawrence Leonard.
4~ Generators
i. BASF (Xnmont) Corporation
According to Dun & Bradstreet Business Information Report {D & B
Report), generated August 2, 1993, Inmont Corporation and certain
of its wholly-owned subsidiaries were purchased by BASF America
Corporation (now BASFIN Corporation) on August 21, 1985. Inmont
changed its name to BASF Corporation and moved its headquarters
to Parsippany, New Jersey.
Financial Information contained in the D & B Report is based upon
a statement made by BASF Corporation on December 31, 1992. It is
summarized as follows:
Current Assets $1,845,576,000.00
Current Liabilities 1,715,737,000.00
Working Capital 129,839,000.00
Other Assets 2,111,411,000.00
Worth 972,139,000.00
Sales 5,042,454,000.00
Net Income 116,071,000.00
m
Based upon the information contained in the August 2, 1993,
D & B Report, BASF Corporation appears to be in excellent
financial condition and is a viable potentially responsible
party.
ii. CTS Corporation
According to a D & B Report, generated August 2, 1993,
CTS Corporation was incorporated in Indiana on February 8, 1929
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- 28 -
Financial Information contained in the D & B Report is based upon
a statement made by CTS Corporation on December 31, 1992. It is
summarized as follows:
Curreot Assets $ 87,376,000.00
Current Liabilities 37,262,000.00
Working Capital 50,114,000.00
Other Assets 76,718,000.00
Worth 112,693,000.00
Sales 227,391,000.00
Net Income 1,901,000.00
Based upon the information contained in the August 2, 1993,
D & B Report, CTS Corporation appears.to be in excellent
financial condition and is a viable potentially responsible
party.
iii. Union Camp Corporation for Chase Packaging
Corporation
According to a D & B Report, generated August 3, 1993, Union Camp
Corporation was incorporated in Virginia on July 12, 1956.
Financial information contained in the D & B Report is based upon
a statement made by W.R. Grace and Company on December 31, 1992.
It is summarized as follows:
Current Assets $1,023,911,000.00
Current Liabilities 892,115,000.00
Working Capital 131,796,000.00
Other Assets 3,695,560,00.0.00
Worth 1,862,278,000.00
Sales 3,064,358,000.00 .
Net Income 76,233,000.00
Based upon the information contained- in the August 3, 1993,
D & B Report,. Union Camp Corporation appears to'be in excellent"
financial condition and is a viable potentially responsible
party.
iv. Engraph incorporated, Package Products Division
According to a D & B Report, generated September 20, 1993,
Engraph Incorporated was incorporated in Delaware on May 8, 1987.
Financial Information contained in the D & B Report is based upon
a statement made by Engraph Incorporated on December 31, 1992.
It is summarized as follows:
Current Assets
Current Liabilities
$ 48,622,000.00
29,328,000.00
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- 29 -
Working Capital 19,294,000.00
Other Assets 77,562,000.00
Worth 48,651,000.00
Sales 235,385,000.00
Net I«come 10,190,000.00
Based upon; the information contained in the September 20, 1993,
D & B Report, Engraph Incorporated appears to be in excellent
financial conditipn and is a viable potentially responsible
party.
v. PMC Corporation, Lithium Division
According to a D & B Report, generated August 3, 1993, FMC
Corporation was incorporated in Delaware on August 10, 1928.
Financial information contained in the D & B Report is baged upon
a statement made by FMC Corporation on March 29, 1993. It is
summarized as follows:
Current Assets $ 1,295,337,000.00
Current Liabilities 1,254,746,000.00
forking Capital 40,591,000.00
Dther Assets 1,636,311,000.00
Worth 122,058,000.00
Sales 3,722,241,000.00
Net Income 155,288,000.00
Based upoh the information contained in the August 3, 1993,
D &¦ B Renorfe. FMC Corporation appears to be in excellent
financial condition and is a viable potentially responsible
party.
vi. Hoechst Cel&nese Corporation,
Celanese Fiber Operations
According to a D & B Report, generated August 3, 1993, Hoechst
Celanese Corporation was incorporated in Delaware on"January 15,
1918.
Financial information contained in the D & B Report is based upon
a statement made by Hoechst Celanese Corporation on December 31,
1991. It is summarized as follows:
Current. Assets $2,422,000,000.00
Current Liabilities 1,487,000,000.00
Working Capital 935,000,000.00
Other Assets 3,009,000,000.00
Worth* 2,303,000,000.00
Sales 6,794,000,000.00
Net Income 172,000,000.00
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- 30 -
Based upon the information contained in the August 3, 1993,
D & B Report, Hoechst Celanese Corporation appears to be in
excellent financial condition and is a viable potentially
responsible party.
vii. Homelite Division of Textron, Incorporated
According to a D & B Report, generated September 20, 1993,
Textron, Incorporated was incorporated in Delaware on July 31,
1967.
Financial Information contained in the D & B Report is based upon
a statement made by Burlington Industries on January 2, 1993.
It is summarized as follows:
Current Assets
Current Liabilities
Working Capital
Other Assets
Worth
Sales
Net Income
$18,366,800,000.00
8,723,100,000.00
217,100,000.00
1,559,300,000.00
425,700,000.00
8,347,500,000.00
527,000,000.00
Based upon the information contained in the September 20, 1993,
D & B Report, Textron, Incorporated appears to be in excellent
financial condition and is a viable potentially responsible
party.
viii. Reeves Brothers, Incorporated
According to a D & B Report, generated September 20, 1993, Reeves
Brothers, Incorporated was incorporated in New York on December
28, 1922.
Financial Information contained in the D & B Report is based upon
a statement made by Reeves Brothers, Incorporated on December 31,
1991. It is summarized as follows:
Current Assets $124,367,000.00
Current Liabilities 42,821,000.00
Working Capital 81,546,000.00
Other Assets 40,921,000.00
Worth 80,294,000.00
Sales 269,559,000.00
Net Income 80,294,000.00
Based upon the information contained in the September 20, 1993,
D & B Report, Reeves Brothers, Incorporated appears to be in
excellent financial condition and is a viable potentially
responsible party.
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- 31 -
ix. Rexham industries Corporation
(formerly Riegal Paper Corporation)
According to a D & B Report, generated September 20, 1993, Rexham
Industries Corporation was incorporated on November 10, 1987.
Financial Information contained in the D & B Report is based upon
a statement made by Rexham Industries Corporation on December 31,
"1991. It is summarized as follows:
Current Assets $ 32,374,000.00
Current Liabilities 168,742,000.00
Working Capital N.A.
Other Assets N.A.
Worth 34,257,000.00
Sales N.A.
Net Income N.A.
Based upon the information contained in the September 20, 1993,
D & B Report, Rexham Industries, Corporation appears to be in
excellent financial condition and is a viable potentially
responsible party.
x. W.R. Grace and Company
According to a D & B Report, generated August 2, 1993, W.R. Grace
and Company was incorporated in Connecticut on June 20, 1899.
Financial information contained in the D & B Report is ba;sed upon
a statement made by W.R. Grace and Company on December 31, 1990.
It is summarized as follows:
Current Assets $1,695,738,236.00
Current Liabilities 830,159,978.00
Working Capital 865,578,258.00
Other Assets 2,049,269,565.00
Worth 905,089,281.00
Sales (12/31/91) 6,144,000,000.00
Net. Income (12/31/91) 223,600,000.00
Based upon the information contained in the August 2, 1993,
D & B Report, W.R. Grace & Company appears to be in excellent
financial condition and is a viable potentially responsible
party.
5. Litigation Risks in Proceeding to Trial
See pages 7 through 11, supra. Based on the foregoing, as well
as equitable considerations, EPA believes that there are
significant litigation risks in initiating a cost recovery action
against the settling party and proceeding to trial. In addition,
EPA believes that it has sufficient evidence to use its
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- 32 -
enforcement authority under CERCLA to insure that the remaining
responsible parties reimburse the EPA for all of its past
response cost, as well as, insure that the remaining responsible
parties perform or finance all future response activities at the
Site.
6. Public Interest Considerations
This early de minimis landowner settlement serves the public
interest because it will conserve government resources, it will
protect the settling party from expensive and protracted
litigation, and it will reimburse the fund for a portion of costs
related to the Site.
7. Precedential value
Settlement in this case is consistent with the national poticy of
obtaining early settlement with de minimis landowners.
8. Value o£ Obtaining a Present Sua Certain
EPA believes that it is in the government's best interest to
recover $150,000.00 from the settling party, who more likely than
not, would prevail at trial under an "Innocent Landowner"
defense.
9. Inequities and Aggravating Pactors
EPA believes that there are no inequities or aggravating factors
in this settlement.
10. Nature of Case Remaining After Settlement
Once the de minimis landowner settlement becomes effective and
the First Union National Bank of South Carolina has paid the
agreed upon $150,000.00, EPA anticipates that no further action
will be required with respect to the First Union National Bank of
South Carolina. EPA will, however, continue the remedial work
necessary to cleanup the- contamination present at the Site, and
will continue"to use its enforcement authority under CERCLA to
insure that the' remaining responsible parties reimburse the EPA
for all of its past response cost, as well as, insure that the
remaining responsible parties perform or finance all future
response activities at the Site.
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APPROVED BY:
- 33 -
W 1 i-i6/s-a,
Joseph R. Franzmatnes DATE
Director
Waste Management Division
U.S. Environmental Protection Agency
Region IV
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Cardinal
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
345 COURTLAND STREET. N.E.
ATLANTA. GEORGIA 30365
Enforcement Confidential
Do Not Release Pursuant to FOIA
Settlement Justification De Minimis Settlement
Agreement for the Wilson Concepts Site, Pompano Beach,
Florida
Leslie E. Bell
Assistant Regional Counsel
P. A. Allen, Chief
CERCLA Branch
Kirk Lucius, Chief
Waste Programs Branch
File
The purpose of this memorandum is to provide the justification
for the attached De Minimig Settlement agreement (Agreement) for
the Wilson Concepts Site (the Site). Carter and Crawley
Precision Metals, Inc. (Carter), the current tenant on the Site,
has offered to buy the property, currently held in receivership
by Resolution Trust Corporation (RTC). Carter will pay the
Agency $48,000, will provide access to the Site, and cooperate
with any response action undertaken by the Agency at the Site.
Because the Agency believes that the monitoring will not cost as
much as $48,000, the difference between the Agency's actual cost
and the $48,000 payment reflects a premium paid by Carter for the
Agreement. In turn, Carter will receive a covenant not to sue
from the Agency for problems caused by past contamination and for
future liability. A brief history of the Site follows.
A. 1 Site History
The Wilson Concepts Site (the Site) was ranked on the National
Priorities List in March 1989. The Site was primarily operated
by Wilson Concepts of Florida, Inc. (Wilson Florida) as a sheet
metal manufacturing and finishing concern. Wilson Florida was
cited several times during the 1970s by the Broward County
Environmental Quality and Control Board (BCEQCB) for having
discharged its waste water by dumping it onto the ground. The
primary contaminants of concern revealed during the Remedial
Investigation/Feasibility Study (RI/FS) were acetone, 1,1-
dichloroethane, chloroethane, 1,4-dichlorobenzene, arsenic,
SUBJECT:
FROM:
THRU:
TO:
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-2-
barium, maanesium, manganese, molybdenum, and zinc.
The Site was bought by John Nolan in 1967 who then leased to
Southeastern Tool & Die Company, Inc. (formerly known as STD,
Inc., and now known ais Wilson Florida) from 1967 through 1980.
John Nolan sold the property to Wilson Associates in 1979 and
Wilson Associates sold the property to Wilson Concepts, Inc. in
1980 (Wilson Concepts, Inc., is the parent corporation of Wilson
Florida). Wilson Concepts, Inc.,. then sold the property to
Wilson Florida in 1986. Vengrowth Holdings, Inc., via a
leveraged buy out financed by CenTrust Savings Bank bought all of
Claude Wilson's (sole shareholder of Wilson Florida) stock in
Wilson Florida. Vengrowth Holdings, Inc., declared bankruptcy in
1987 and CenTrust Savings Bank (CenTrust) acquired title to the
property in 1988. Thus, the owner of the Site during the RI/FS
was CenTrust, now in the hands of a receiver, RTC.
In 1988, CenTrust entered into a five (5) year lease with Carter
and also gave Carter a right of first refusal should the property
be put up for sale. Carter operates a precision sheet metal
fabricating company at the Site. Carter's operations at the Site
are fully explained in Section B, paragraphs two (2) and three
(3) of this memorandum. The Remedial Investigation/Feasibility
Study was completed in the spring of 1992, and the Record of
Decision (ROD) for the Site was signed on September 22, 1992.
The ROD is a no remedial action ROD with one year of quarterly
groundwater monitoring. The cost of the remedy is estimated at
$48,000. As of February 3, 1993, past costs at the Site total
$367,679.27. RTC auctioned off the property in December 1992,
and Carter exercised its right of first refusal on December 21,
1992.
B. Criteria for De Minimis Settlement Agreement
The Region believes that the Agreement is in the public interest,
benefits EPA and RTC, and meets the criteria set out in the
"Interim Guidance on Settlements with De Minimis Waste
Contributors under Section, 122(g) of SARA,n June 19, 1987, OSWER
Directive number 9834.7 and in the Memorandum entitled
"Methodologies for Implementation of CERCLA Section 122(g)(1)(A)
De Minimis Waste Contributor Settlements," December 20, 1989,
OSWER Directive number 9834.7-1B. While Carter's status as a PRP
is based oh its being a de minimis operator and not a de minimis
generator, the criteria required by CERCLA Section 122(g)(1)(A),
42 U.S.C. § 9622(g)(1)(A), and by the guidances are the same for
a <|e minimis operator and generator. A brief analysis of the
criteria as set out in these guidances follows:
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-3-
t
1. The Settlement involves only a minor portion of the
response costs at the Site.
As of February 3, 1993, EPA's total past response costs for the
Site were $367,679.27. In addition, the future groundwater
monitoring is estimated to- cost the Agency $48,000, not including
oversight costs. The total of the two is $415,679.27. The
Settlement involves a total payment of $48,000, which is
approximately twelve percent (12%) of EPA's total response costs,
a minor portion of the total response costs involved.
2. Thft amount of hazardous substances contributed by
Carter is minimal in comparison to other hazardous
substances at the Site.
Hazardous substances contributed by de minimis parties involved
in other settlement proposals have been minimal in amount
compared to other hazardous substances contributed by other PRPs.
For example, the amount of hazardous substances contributed by de
minimis parties to various settlements have ranged from 0.2% to
2.0% of the total wastes at the Site. EPA sampling data taken
prior to Carter's beginning operations1 in 1988 was compared
with sampling data obtained during the Remedial Investigation/
Feasibility Study (RI/FS).2 The comparison shows little change
in current Site contamination levels, but what little change
there is, is a reduction in the level of some contaminants.
Those findings led the Agency to select in the Record of Decision
(ROD) a remedy of no remedial action with one year of quarterly
groundwater monitoring pursuant to CERCLA Section 104(b), 42
U.S.C. § 9604(b). Because the sampling data does not show any
kind of contamination specific to Carter's operations, any amount
of hazardous substances contributed by Carter is minimal in
comparison with the hazardous substances contributed by the
facilities which previously operated on the Site.
Because Carter intends to buy the property, further discussion
follows regarding Carter's future operations and the likelihood
that Carter's future operations may contribute additional larger
amounts of hazardous substances to the Site. While the guidance
does not require consideration of a de minimis party's current
activities in order to reach an agreement, such consideration is
important in light of the fact that Carter plans to continue
operating at the Site. The Agency believes that continued
operations by Carter of the facility or new site development,
1 "Site Screening Investigation Report — Chemform,
Inc./Wilson Concepts, Inc., Site, Pompano Beach, Florida," NUS
Corporation, January 1987.
2 "Remedial Investigation Report — Wilson Concepts Site,
Pompano Beach, Florida, U.S. EPA, Region IV, May 1992.
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-4-
with the exercise of due care, will not aggravate or contribute
to the existing contamination or interfere with the remedy.
It is unlikely that Carter* will aggravate or contribute to the
existing contamination or interfere with the remedy. Currently
the contamination at the Site is below threshold level. Carter
is a sheet metal working facility presently in compliance with
all State and Federal laws regarding disposal of metal wastes.
Carter has been operating at the Site for the past five (5)
years, and during those five years, contamination levels at the
Site has continued to decline. According to the ROD, "natural
attenuation of contaminant levels at the Site has reduced the
risk from exposure to site-related contaminants to levels which
are protective of human health and the environment."3
Carter to date has allowed EPA access to the Site to perform the
second phase of the RI/FS, and has agreed to grant EPA access to
perform the groundwater monitoring. Carter by letters dated
January 20, 1993, March 10, 1993, and April 29, 1993, provided
EPA with information about its current business activities and
stated that it plans to continue conducting the business
activities described in the letters after the Site is purchased.
The only change in future operations anticipated by Carter is the
replacement of the current wipe down process to a water based,
pre-painting cleaning solution. The cleaning operation would be
conducted inside the building and the only change needed would be
the addition of a sewer line to link Carter up with the Pompano
Beach sewer system.
All of Carter's production processes are performed inside the
building and any spills that have occurred, have been small in
amount and limited within the curbed containment area within the
building. The production process is primarily a dry process
involving cutting, bending, forming and joining of carbon steel,
stainless steel and aluminum sheet metal. Chemicals used include
liquid coolant, solvents used to wipe down the sheet metal prior
to painting, and paints and its associated thinners. The wastes
are separately drummed and stored inside the building prior to
removal by a licensed transporter for off-site disposal. Carter
has been and currently is in compliance with all State and
Federal environmental laws. Carter's continued operation on the
Site should not exacerbate present contamination nor should its
operations interfere with the remedy selected in the ROD. Any
hazardous wastes contributed by Carter should continue to be
minimal in comparison to the amount of hazardous substances
contributed by previous facilities on the Site.
Record of Decision: Summary of Remedial Alternative
Selection for the Wilson Concepts of Florida. Inc. Site, p. 25
(September 22, 1992).
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3. The toxic or other hazardous effects of the substances
contributed bv Carter are minimal in comparison to
other hazardous substances at the Site.
The toxic or other hazardous effects of the substances
contributed by Carter are minimal in comparison to other
hazardous substances at the Site. The metals used by Carter are
sixty percent (60%) mild steel, twenty-five percent (25%)
aluminum, fourteen percent (14%) stainless steel, and less than
one percent (1%) brass and copper, all of which are not hazardous
substances except for copper.* Carter's business is ninety-
five percent (95%) sheet metal manufacturing, which involves
shearing, punching, steel stamping, sand deburring, forming, and
welding the metal. The risk posed by metals contributing to the
hazardous waste contamination at the Site is minimal because the
majority of these metals are not hazardous substances. While the
coolants used in the manufacturing process, previously Meikool
AP-81 and currently Ultra-Synthet 941, have components which are
hazardous substances, there have been no reported spills or other
incidences noticed by EPA or Broward County Environmental Quality
and Control Board (BCEQCB). The coolants are stored during
recycling in fifty-five (55) gallon drums and located in a
secondary containment area. The waste generated comes from the
still bottoms in the drums and this still bottom waste is
manifested as hazardous waste and disposed of off-Site through
Chemical Conservation Corporation in accordance with Federal and
State regulations. In comparison, Wilson Florida, a former
facility on the Site, spent ninety percent (90%) of its business
time in sheet metal finishing. Wilson Florida utilized chemicals
to finish and polish the sheet metal. Those chemicals used by
Wilson Florida are more toxic and hazardous than the waste metal
shavings contributed and coolants used by Carter.
The other five percent (5%) of Carter's business involves
finishing the manufactured'metal products. Chemicals used by
Carter which are haizardous substances include methyl ethyl
ketone, trichloroethane 1,1,1, and RQ Hazardous Waste Liquid
n.o.s. These hazardous substances are used solely within the
building, drummed when finished with, and disposed of off-Site by
Chemical Conservation Corporation in accordance with State and
Federal regulations. In comparison, Wilson Florida's business
was approximately ninety percent (90%) metal finishing. Thus,
Wilson Florida utilized greater quantities of hazardous
substances in the form of finishing chemicals than does Carter.
In addition, Wilson Florida several times violated the State of
Florida's environmental regulations. Wilson Florida was cited by
4 Copper is listed as a hazardous substance pursuant to
40 C.F.R. § 302.4, however, reporting releases of copper metal is
not required for pieces of the solid metal which are equal to or
greater than 100 micrometers (0.004 inches).
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the (BCEQCB) for having discharged industrial wastes onto the
ground, overfilled oil tanks, and discharged the contents of
deoxized degreaser rinse tanks onto the ground.5 While BCEQCB
noted that the Wilson Florida facility cleaned up the oil spills
and installed a new drain field, it is most likely that the
majority of the groundwater contamination came from these
releases. Therefore, the toxic or other hazardous effects caused
by Carter's operations are minimal in type and amount in
comparison with the toxic or other hazardous effects caused by
previously operating facilities, including Wilson Florida.
This conclusion is supported by the RI/FS which evaluated the
health risks posed by the Site to people on and off the Site.
While the RI/FS was conducted, Carter operated on the Site with
no adverse health affects to the public. Carter reports no
problems with working on the Site and the RI/FS found current
levels of contamination at the Site to be below threshold levels.
Carter's methods of disposing of metal wastes are in compliance
with all applicable State and Federal laws; thus, any releases
caused by the operation of the facility has had a minimal effect
on the Site compared with the substances released prior to
Carter's operations.
4. The Settlement is practicable and in the public
interest.
The Settlement is practicable and in the public interest. The
Agency currently plans to conduct the monitoring itself, and in
doing the monitoring itself, the Agency does not usually incur
oversight costs. The Agency believes that the monitoring will
not require the full $48,000 estimated in the ROD. Thus, the
$48,000 reflects the cost of the monitoring and a premium payment
of the difference between the actual cost of the monitoring to
the Agency (expected to be less than $48,000) and the Settlement
figure of $48,000. The public benefits by having Carter pay a
premium for this Agreement. First, the public benefits when the
Superfund is fully reimbursed for cleanup costs. Second, such
agreements foster a better relationship between the Agency and
business community, thereby conferring a benefit upon members of
the public directly affected by such businesses. Thirdly, such
agreements .help establish the limits of a party's liability to
the Agency, which then allows the Agency to focus its efforts on
cleaning up additional sites.and allows businesses to continue in
business.
The public interest also is better served when various branches
of the Federal Government cooperate together. RTC is under a
5 "Remedial Investigation Report — Wilson Concepts Site,
Pompano Beach, Florida," U.S. EPA, Region IV, pp. 8 - 12, May
1992.
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congressional mandate to complete the sale of its assets,
including this property, and to disband by late 1993. EPA will
be helping RTC sell a Superfund site more easily by negotiating
an Agreement with Carter in which Carter is able to resolve its
liability to the Agency. EPA will receive $48,000 from Carter as
compensation for Carter's liability as a de minimia operator.
This settlement benefits EPA because the payment includes as a
premium the difference between EPA's estimated actual costs for
the groundwater monitoring and the estimated cost in the ROD. In
addition, the Agency will obtain these funds without engaging in
protracted litigation. Thus, both Agencies goals will be
accomplished; Congress' mandate that RTC finish its business will
be one step closer to completion, and the Agency will be fully
compensated for its response costs.
This Agreement will not impact upon the Agency's position against
the other PRPs. Currently the Agency is negotiating with the
PRPs for payment of EPA's past response costs. To date, the
Agency has been paid $41,000 towards its RI/FS response costs,
and the Agency anticipates another payment towards its RI/FS
costs of approximately $80,000 in the upcoming months. The
$48,000 sum negotiated between Carter and EPA represents Carter's
share of EPA's past response costs in addition to the anticipated
costs of future groundwater monitoring.
Because this Agreement is in the public interest, benefits EPA
and RTC, and meets the criteria set out in the guidances, the
Office of Regional Counsel recommends acceptance of this
Settlement.
Attachment
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U.S. ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF:
WILSON CONCEPTS SUPERFUND SITE
CARTER and CRAWLEY PRECISION
METALS. INC.-
RESPONDENT
Proceeding under Section 122(g)(4)
of the Comprehensive Environmental
Response, Compensation, and
Liability Act of 1980, as amended,
42 U.S.C. 9622(g)(4)
I. JURISDICTION
A. This Administrative Order on Consent ("Consent Order")
is issued pursuant to the authority vested in the President of the
United States by Section 122(g)(4) of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980,
as amended by the Superfund Amendments and Reauthorization Act of
1986 (CERCLA), Pub. L. No. 99-499, 42 U.S.C. § 9622(g)(4), to
reach settlements in actions under Section 106 and 107(a) of
CERCLA, 42 U.S.C. §§ 9606 and 9607(a). The authority vested in
the President has been delegated to the Administrator of the
United States Environmental Protection Agency (EPA) by Executive
Order 12580, 52 Fed. Reg. 2923 (January 29, 1987) and delegated to
the Regional Administrators of the EPA by EPA Delegation No.
14-14-E (September 13, 1987) and further re-delegated to the
Director, Waste Management Division.
ADMINISTRATIVE ORDER
ON CONSENT
DE MINIMIS SETTLEMENT
U.S. EPA Docket
No. 93-19-C
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B. This Consent Order is issued to Carter and Crawley
Precision Metals, Inc. (Respondent). Respondent's mailing address
is 1408 S.H. Eighth Street, Pompano Beach, Florida. Respondent
agrees to undertake all actions required by the terms and
conditions of this Consent Order. Respondent further consents to
and will not contest EPA's jurisdiction to issue this Consent
Order or to implement or enforce its terms.
II. DEFINITIONS
A. "Record of Decision" or "ROD" shall mean the EPA Record
of Decision relating to the Wilson Concepts Superfund Site signed
on September 22, 1992, by the Regional Administrator of EPA,
Region IV, including any Explanations of Significant Differences
or other changes thereto, and all attachments thereto.
B. "Site" shall mean that parcel of property located at
1408 S.W. Eighth Street, Pompano Beach, Broward County, Florida.
The Site encompasses approximately two (2) acres.
III. STATEMENT OF FACTS
A. Wilson Concepts of Florida, Inc., (Wilson Florida), was
a metal machining facility which operated at the Site for over
fifteen (15) years. Wilson Florida has been in bankruptcy since
1987. Carter and Crawley Precision Metals, Inc. (Respondent), a
i
sheet metal machining facility, has operated and leased the Site
from CenTrust Savings Bank (CenTrust) and the Resolution Trust
Corporation (RTC) since November 1988.
B. RTC, as receiver for CenTrust, currently holds title to
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the Site. Respondent has reached a preliminary agreement to
purchase the Property from RTC, subject, in part, to completion of
this Agreiement.
C. In 1967, John Nolan purchased the Site and leased it to
Southeast Tool and Die from 1967 to 1974. In July 1974, Claude
Wilson acquired the stock of Southeast Tool and Die and formed
Wilson Florida, a subsidiary of Wilson Concepts, Inc. From 1974
to 1980, Wilson Florida leased the Site. Operations on the Site
included manufacturing jet aircraft engine parts and metal-working
machinery. Associated operations included precision machining,
drilling and milling of metal parts, vibratory deburring,
degreasing, steam cleaning, and spray coating of parts. In this
process, a variety of chemicals were used, including organic
solvents, chlorinated solvents, petroleum products, paints,
cyanides, acids, and bases.
D. In 1980, Wilson Concepts, Inc., bought the Site from
John Nolan. In 1986, Wilson Concepts, Inc., sold the Site to
Wilson Florida. Later in 1986, Vengrowth Holdings, Inc.
(Vengrowth), acquired the stock of Wilson Florida via a leveraged
buy out financed by CenTrust. Wilson Florida operated the Site
until 1987, when Vengrowth had Wilson Florida file for bankruptcy.
CenTrust acquired title to the Site in 1988 and entered into a
five (5) year lease with Respondent in November 1988.
Subsequently, CenTrust went into receivership where RTC, the
receiver, has been distributing CenTrust's assets. RTC sold the
Site at auction in December 1992 to Interfinance Corporation.
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Respondent then exercised its right of first refusal to buy the
Site on December 21, 1992. Respondent has offered to, and the
Parties anticipate that Respondent will, purchase and complete
closing on the Site property contingent, in part, upon completion
of this Agreement. Upon closing, Respondent will become the owner
of the Site.
E. Between 1976 and prior to the date of Respondent's
occupancy, several inspections were conducted by Broward County
Environmental/Quality Control Board which documented poor waste
handling practices, including discharge of industrial wastes onto
the ground and into a drainage field. In August 1985, EPA
conducted a Preliminary Assessment (PA) of the Site and in July
1986 requested its contractor, NUS, to perform a Sampling
Investigation (SI). The SI revealed sufficient contamination to
propose the Site for inclusion onto the National Priorities List
(NPL). In 1987, CenTrust contracted with Hazards, Inc., to
conduct an inventory of chemicals and wastes found at the Site.
The inventory revealed products such as nitric, phosphoric, and
hydrofluoric acids, alkali cleaners, sodium hydroxide, chromatic
acid, lubricating oils, honing oils, mineral spirits, methyl ethyl
ketone, 1,1,1-trichloroethane, kerosene, coolants, petroleum
distillates, and detergents.
F. In July 1988, the Wilson Concepts Site was proposed for
inclusion on the NPL, as defined in Section 105 of CERCLA, as
amended, 42 U.S.C. § 9605. The Site became final on the NPL in
March 1989 with a Hazard Ranking System Score of 37.93. (54 Fed.
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Reg. 13301.
G. The Site is a recharge zone for the Biscayne Aquifer,
which is a drinking water supply for residents in Southeast
Florida, and the primary drinking water source in Broward and Dade
Counties. At least four (4) municipal well fields are located
within three (3) miles of the Site, including the City of Pompano
Beach's Palm-Aire and Eastern Pompano Beach Well Fields, and the
Broward County District IB and District 1C Well Fields.
H. Contaminated soil is the primary potential source of
groundwater contamination at the Wilson Concepts Site. The
primary groundwater contaminants identified at the Site are
inorganic constituents. Metal-working operations at the Site
produced elevated concentrations of CERCLA Listed Hazardous
Substances, such as chromium, nickel, and arsenic, in the soils.
Leaching of the soils is the primary contributor of the inorganic
constituents to groundwater at the Site.
I. After Respondent began operations at the Site, a
Remedial Investigation (RI) of the Site was conducted and a Risk
Assessment (RA) performed. Activities conducted during the RI
included a soil-gas survey, surface and subsurface soil sampling,
groundwater sampling, and air sampling. Results of the
groundwater sampling indicated various contaminants of. concern,
including acetone, 1,1-dichloroethane, chloroethane, 1,4-
dichlorobenzene, arsenic, barium, magnesium, manganese,
molybdenum, and zinc.
J. Acetone, 1,1-dichloroethane, chloroethane, 1,4-
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dichlorobenzene, arsenic, barium and zinc are on the CERCLA List
of Hazardous Substances, 4p C.F.R. § 302.4.
K. Potential negative effects from human exposure to the
contaminants of concern identified in the groundwater at the Site
include adverse effects to the skin, vascular system, blood
pressure, blood and liver, as well as decreased body and organ
weight, decreased body weight gain, hyperactivity, and increased
male mortality. The results of the Remedial Investigation and the
Risk Assessment indicate that natural attenuation of contaminant
levels at the Site has reduced the risk from exposure to Site-
related contaminants to levels which are protective of human
health and the environment.
L. On September 22, 1992, a Record of Decision (ROD) was
signed by Mr. Donald Guinyard for Mr. Greer Tidwell, EPA Region IV
Regional Administrator. The remedy selected in the ROD is to
conduct quarterly monitoring of groundwater for one year with no
remediation of the soil or groundwater.
M. As a result of the release or threatened release of
hazardous substances into the environment, EPA has undertaken
response actions at the Site pursuant to Section 104 of CERCLA,
42 U.S.C. § 9604. In performing these response actions, including
the RI/FS, the United States has incurred and will continue to
incur response costs at or in connection with the Site which EPA
is entitled to recover under Section 107(a) of CERCLA, 42 U.S.C.
§ 9607(a). For purposes of this settlement, the present estimate
of past and future costs for this Site are (as of February 3,
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1993) $367,679 for past costs and $48,000 for future groundwater
monitoring.
N. Respondent has leased the Site from CenTrust since
November 1988. Respondent represents, and for the purposes of
this Agreement EPA relies on those representations, that the
involvement of Respondent with the Site has been limited to sheet
metal manufacturing operations. Respondent has been operating at
the Site for the past five (5) years, and during those five years,
contamination levels at the Site have remained the same with a
small declines in the level of some of the contaminants.
0. Respondent is a precision sheet metal fabricator. All
of its production processes are performed inside the building and
any spills that have occurred, have been small in amount and
limited within the curbed containment area within the building.
The production process is primarily a dry process involving
cutting, bending, forming and joining of carbon steel, stainless
steel and aluminum sheet metal. Chemicals used include liquid
coolant, solvents used to wipe down the sheet metal prior to
painting, and paints and its associated thinners. The wastes are
separately drummed and stored inside the building prior to removal
by a licensed transporter for offsite disposal.
P. Respondent, has provided EPA with the information above
about its current business activities and stated that it plans to
continue this business activity after the Site is purchased. The
information provided by Respondent is attached herein as
Attachment A to this Consent Order and is incorporated by
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reference. The only change in future operations anticipated by
Respondent is the replacement of the current wipe down process to
a water based, pre-painting cleaning solution. The cleaning
operation would be conducted inside the building, which requires
the addition of a sewer line to link the Site up with the Pompano
Beach sewer system.
Q. Information currently known to EPA indicates that the
amount of hazardous substances contributed to the Site by
Respondent does not exceed 0.1 percent by volume of the hazardous
substances at the Site, and that the toxic or other hazardous
effects of the substances contributed by Respondent does not
contribute disproportionately to the cumulative toxic or other
hazardous effects of the hazardous substances at the Site.
R. In evaluating the settlement embodied in this Consent
Order, EPA has considered the potential costs of remediating
contamination at or in connection with the Site taking into
account possible cost overruns in completing the response action
consistent with the Record of Decision (ROD) for this Site and
possible future costs if the response action consistent with the
ROD for this Site is not protective of public health or the
environment.
S. Payments required to be made by Respondent pursuant to
this Consent Order represent approximately twelve percent (12%)
which is a minor portion of the total response costs at the Site
which EPA, based upon currently available information, estimates
to be $415,679.
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T. EPA has identified persons other than the Respondent who
owned or operated the Site, or who arranged for disposal or
treatment or arranged with a transporter for disposal or
treatment, of a hazardous substance owned or possessed by such,
person at the Site, or who accepted a hazardous substance for
transport to the Site. EPA has considered the nature of its case
against these non-settling parties in evaluating the settlement
embodied in this Consent Order.
U. Consideration received from Respondent, in the form of
money to be applied to Site response costs, access, and
cooperation as set forth in this Agreement, bestows upon EPA a
substantial benefit which would not otherwise be available.
V. EPA is negotiating a separate settlement with the
Potentially Responsible Parties (PRPs) wherein they have indicated
a willingness to reimburse EPA for its unrecovered past response
costs.
W. Based on the facts and conditions described herein, EPA
has determined that entering into this Agreement is practicable,
in the public interest, and consistent with the National
Contingency Plan.
IV. DETERMINATIONS
Based upon the Findings of Fact set forth above and on the
administrative record for this Site, EPA has determined that:
A. The Site as defined in Section II of this Consent Order
is a "facility" as that term is defined in Section 101(9) of
CERCLA, 42 U.S.C. § 9601(9).
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B. Respondent is a "person" as that term is defined in
Section 101(21) of CERCLA, 42 U.S.C. § 9601(21).
C. Respondent is a "potentially responsible party" within
the meaning of Section 107(a)(1) of CERCLA, 42 U.S.C.
§ 9607(a)(1), and a "potentially responsible party" within the
meaning of Section 122(g)(1)(A) of CERCLA, 42 U.S.C.
§ 9622(g)(1)(A).
D. The past, present or future migration of hazardous
substances from the Site constitutes an actual or threatened
"release" as that term is defined in Section 101(22) of CERCLA,
42 U.S.C. § 9601(22).
E. Prompt settlement with the Respondent is practicable and
in the public interest within the meaning of Section 122(g)(1) of
CERCLA, 42 U.S.C. § 9622(g)(1).
F. This Consent Order involves at most only a minor portion
of the response costs at the Site pursuant to Section 122(g)(1) of
CERCLA, 42 U.S.C. § 9622(g)(1).
G. The amount of hazardous substances contributed to the
Site by Respondent and the toxic or other hazardous effects of the
hazardous substances contributed to the Site by Respondent are
minimal in comparison to other hazardous substances at the Site
pursuant to Section 122(g)(1)(A) of CERCLA, 42 U.S.C.
§ 9622(g)(1)(A).
V. ORDER
Based upon the administrative record for this Site and the
Findings of Fact and Determinations set forth above, and in
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consideration of the promises and covenants set forth herein, it
is hereby, AGREED TO AND ORDERED:
A. PAYMENT
Respondent shall pay the sum of $48,000, in accordance with
this paragraph, in settlement of all claims by EPA against the
Respondent for reimbursement of the past and future response costs
incurred by EPA in connection with the Site and all violations, if
any, alleged against Respondent in this Order. The $48,000
payment represents the payment of compensatory damages to EPA and
does not represent a punitive penalty or fine. The sum of $48,000
shall be made payable to EPA in the following manner: $20,000
shall be made payable to EPA sixty (60) days of the effective date
of this Consent Order and three (3) additional payments of
$10,000, $10/000, and $8,000 respectively, plus interest shall be
made payable to EPA as provided hereinafter. The second payment
of $10,000 shall be made twelve (12) months after the effective
date of this Order on the fifteenth business day of that month.
The third payment of $10,000 shall be made twenty-four (24) months
after the effective date of this Order on the fifteenth business
day of that month. The fourth and final payment of $8,000 shall
be made thirty-six (36) months after the effective date of this
Order on the fifteenth business day of that month. For purposes
of this Order, interest shall accrue at the same rate as is
specified for investments of the Hazardous Substance Superfund as
provided in Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), and
shall begin accruing on the effective date of this Order.
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Payments shall be made by certified or cashier's check made
t
payable to the order of "EPA Hazardous Substances Superfund"
referencing the EPA Site identification number 9X, the name of the
Site, and the name of the Respondent, and shall forward the check
to:
U.S. Environmental Protection Agency
Region IV
Attn: Superfund Accounting
P.O. Box 100142
Atlanta, Georgia 30384
Respondent shall simultaneously send a copy of its checks to:
Ms. Carolyn McCall
Cost Recovery Section
Waste Management Division
U.S. Environmental Protection Agency
Region IV
345 Courtland Street, N.E.
Atlanta, Georgia 30365
B. CERTIFICATION OF RESPONDENT
The Respondent certifies that, to the best of its knowledge
and belief, it has provided to EPA all information currently in
its possession, or in the possession of its officers, directors,
employees, contractors or agents, which relates in any way to the
ownership, operation, generation, treatment, transportation or
disposal of hazardous substances at or in connection with the
Site.
C. COVENANT NOT TO SUE
1. In consideration for the promises made and payments to
be paid by Respondent pursuant to Section V(A) and subject to the
reservation of rights in Section V(D), Paragraphs 1 and 2, of this
Consent Order, EPA covenants not to sue or take any other civil or
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administrative action against the Respondent nor to establish any
lien against the Site for any and all civil liability for
injunctive relief or reimbursement of response costs pursuant to
Sections 106 or 107(a) of CERCLA, 42 U.S.C. §§ 9606 or 9607(a), or
Section 7003 of the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. § 6973, with regard to the matters covered
under this consent order. This covenant not to sue shall not
apply to any of Respondent's officers, directors, shareholders,
employees or agents who were officers, directors, shareholders,
employees or agents of any entity which owned, operated, or
generated hazardous substances on the property from 1970 until
November 1988 when Respondent began to lease the Site. In
addition, this covenant not to sue shall not apply to any lessees,
sublessees, assignees, or transferees of Respondent who were
officers, directors, shareholders, employees or agents of any
entity which owned, operated, or generated hazardous substances on
the property from 1970 until 1988. The covenants not to sue under
this Section shall take effect upon payment by Respondent of the
amounts specified in Section V(A), of this Consent Order.
2. In consideration of EPA's covenant not to sue in Section
V(C), Paragraph 1, of this Consent Order, the Respondent agrees
not to assert any claims or causes of action against the United
States or its contractors or its employees or the Hazardous
Substances Superfund arising out of expenses with respect to the
Site, or to seek any other costs, damages, or attorney's fees from
the United States or its contractors or employees arising out of
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response activities at the Site. Respondent agrees to cooperate
fully with EPA on any response action on the Site and EPA agrees,
consistent with its responsibilities under applicable law, to use
reasonable efforts under the circumstances to minimize any
interference with Respondent's operations.
D. RESERVATION OF RIGHTS
1. Nothing in this Consent Order is intended to be nor
shall it be construed as a release or covenant not to sue for any
claim or cause of action, administrative or judicial, at law or in
equity, which the United States, including EPA, may have against
Respondent for:
a) any liability as a result of failure to make the
payments required by Section V(A),of this Consent Order;
b) any liability resulting from future exacerbation by
Respondent of the release or threat of release of hazardous
substances from the Site;
c) any and all criminal liability; or
d) any matters not expressly included in the covenant not
to sue set forth in Section V(C) of this Consent Order,
including, without limitation, any liability for damages to
natural resources.
2. Nothing in this Consent Order constitutes a covenant not
to sue or to take action or otherwise limits the ability of the
United States, including EPA, to seek or obtain further relief
from the Respondent, and the covenant not to sue in Section V(C),
Paragraph 1, of this Consent Order .is null and void, if
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information different from that specified in Section III,
Paragraph N, is discovered which indicates that Respondent fails
to meet any of the criteria specified in Section 122(g)(1)(A) of
CERCLA.
3. Nothing in tnis consent urder is intended as a release
or covenant not to sue for any claim or cause of action,
administrative or judicial, civil or criminal, past or future, in
law or in equity, which the United States, including EPA, may have
against any person, firm, corporation or other entity not a
signatory to this Consent Order.
4. EPA and Respondent agree that the actions undertaken by
the Respondent in accordance with this Consent Order do not
constitute an admission of any liability by the Respondent. The
Respondent does not admit and retains the right to controvert in
any subsequent proceedings, other than proceedings to implement or
enforce this Consent Order, the validity of the Findings of Pact
or Determinations contained in this Consent Order.
E. CONTRIBUTION PROTECTION
Subject to the reservation of rights in Section V(D),
Paragraphs 1 and 2, of this Consent Order, EPA agrees and so finds
that by entering into and upon carrying out the terms of this
Consent Order, Respondent is entitled, as of the effective date of
the Consent Order, to the full extent of protection for matters
addressed in this settlement as provided by Section 122(g)(5) of
CERCLA, 42 U.S.C. § 9622(g)(5).
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F. PARTIES BOUND
This Consent Order shall apply to and be binding upon the
Respondent and its officers, directors, employees, agents,
successors and assigns. The signatory represents that he is fully
authorized to enter into the terms and conditions of this Consent
Order and to legally bind the Respondent. Any change in ownership
or corporate status of a Respondent, including, but not limited
to, any transfer of assets or real or personal property, shall in
no way alter Respondent's payment responsibilities under this
Order.
G. CIVIL PENALTIES
In addition to any other remedies or sanctions available to
EPA, any Respondent who fails or refuses to comply with any term
or condition of this Consent Order shall be subject to a civil
penalty of up to $25,000 per day of such failure or refusal
pursuant to Section 122(1) of CERCLA, 42 U.S.C. § 9622(1).
H. PUBLIC COMMENT
This Consent Order shall be subject to a thirty day public
comment period pursuant to Section 122(i) of CERCLA, 42 U.S.C.
§ 9622(i). In accordance with Section 122(i)(3) of CERCLA,
42 U.S.C. § 9622(i)(3), EPA may withdraw or modify consent to this
Consent Order if comments received disclose facts or
considerations which indicate that this Consent Order is
inappropriate, improper, or inadequate.
I. EFFECTIVE DATE
The effective date of this Consent Order shall be the date
-16-
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upon which EPA issues written notice to the Respondent that the
public comment period pursuant to Section V (H), of this Consent
Order has closed and that comments received, if any, do not
require modification of or EPA withdrawal from this Consent Order.
IT IS SO AGREED AND ORDERED:
******** ********************
Carter and Crawley Precision Metals, Inc.
By:_
Date
U.S. Environmental Protection Agency
By:
Date
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Attachment A
Letters Provided by
Carter and Crawley Precision Metals, Inc.
dated January 20, 1993, March 10, 1993,
and April 29, 1993
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APPENDIX A
MODEL SECTION 122(h) (1) COST RECOVERY AGREEMENT
FOR PAST COSTS AND/OR PRESENT LIABILITY FOR FUTURE COSTS
IN THE MATTER OF:
AGREEMENT FOR PAYMENT
OF RESPONSE COSTS
{Site Name)
(City or Town, County, State)
U.S. EPA Region _
CERCLA Docket NoT
(Names of Settling Parties.
If many, reference attached
list.)
PROCEEDING UNDER SECTION
122(h)(1) OF CERCLA,
42 U.S.C. 9622(h)(1)
SETTLING PARTIES )
(NOTE: This model is designed primarily for compromises of
past costs. It also includes bracketed language which may be
used for compromises of present liability for future costs. Any
future liability compromise would need to be embodied in a
judicial consent decree, not in a Section 122(h)(1) agreement,
because future liability, by definition, concerns unknown costs
that cannot be quantified with sufficient certainty to be
compromised under Section 122(h)(1).]
This Agreement is made and entered into by the United
States Environmental Protection Agency ("EPA") and the
[insert names or reference attached list of settling parties]
("Settling Parties"). This Agreement concerns the [insert Site
name] (the "Site") located in [insert Site location]. The
purpose of this Agreement is for EPA to recover "Past Response
Costs" [and "Future Response Costs"] as defined in Paragraph 2 of
this Agreement and to resolve the liability of the Settling
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Parties for such costs.
EPA is authorized to enter into this Agreement pursuant to
the authority vested in the Administrator of the EPA by Section
122(h)(1) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended by the
Superfund Amendments and Reauthorization Act of 1986, Pub. L. No.
99-499 ("CERCLA"), which, authority has been delegated to the
Regional Administrators of the EPA by EPA Delegation No. 14-14-D
(Sept. 13, 1987).
WHEREAS, EPA alleges that hazardous substances as defined by
Section 101(14) of CERCLA, 42 U.S.C. 9601(14), are present at the
Site and that such hazardous substances have been or are
threatened to be released into the environment from the Site;
WHEREAS, EPA alleges that the Site is a "facility" as
defined in Section 101(9) of CERCLA, 42 U.S.C. 9601(9);
WHEREAS, EPA alleges that such releases or threatened
releases required response action to be undertaken at the Site
pursuant to Section 104 of CERCLA, 42 U.S.C. 9604, (insert if
appropriate: "and will require additional response action to be
undertaken in the future"];
WHEREAS,. EPA alleges that in performing this response
action, response costs have been incurred at or in connection
with the Site pursuant to Section 107 of CERCLA, 42 U.S.C. 9607,
[insert if appropriate: "and that further response costs will be
incurred in the future"];
whereas. EPA alleaes that the Settling Parties are
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responsible parties pursuant to Section 107(a) oC CERCLA, 42
U.S.C. 9607(a), and are jointly and severally liable for response
costs incurred [insert if appropriate "and to be incurred"] at or
in connection with the Site;
[NOTB: If DOJ approval of this Agreement is required by
Section 122(h)(1) of CERCLA because total past and projected
response costs at the Site exceed $500,000, excluding interest,
and the Agreement conqpromises a claim, the Agreement should state
the following: "WHEREAS, the Attorney General or his designee
has issued prior written approval of the settlement embodied in
this Agreement pursuant to Section 122(h)(1) of CERCLA." If DOJ
approval of the Agreement is not required by Section 122(h)(1),
the Agreement should state the following: "WHEREAS, the Regional
Administrator [or his/her delegatee] of EPA, Region , has
determined that the total response costs incurred by the United
States to date at or in connection with the Site do not exceed
$500,000, excluding interest, and that, based upon information
currently available to EPA, total United States response costs at
or in connection with the Site are not anticipated to exceed
$500,000, excluding interest, in the future]; and
WHEREAS, EPA and the Settling Parties desire to settle
certain claims arising from the Settling Parties' alleged
involvement with the Site without litigation and without the
admission or adjudication of any issue of fact or law;
NOW, THEREFORB, EPA and the Settling Parties, in considera-
tion of the promises herein, and intending to be legally bound
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hereby, agree as follows:
1. This Agreement shall be binding upon EPA and shall be
binding upon the Settling Parties and their [heirs], successors
and assigns. Each signatory to this Agreement represents that he
or she is £ully authorized to enter into the terms and conditions
of this Agreement and to bind legally the party represented by
him or her. The Settling Parties agree to undertake all actions
required by this Agreement. The Settling Parties consent to and
will not contest EPA's authority to enter into this Agreement or
to implement or enforce its terms.
2. Within 30 days of the effective date of this Agreement,
the Settling Parties shall pay to the Hazardous Substance
Super fund $ in reimbursement of EPA's claim for "Past
Response Costs," plus "Interest" on that amount calculated from
(insert date from "Past Response Costs" as defined below) through
the date of payment, [and $ in reimbursement of EPA's claim
for "Future Response Costs."] "Past Response Costs" includes all
costs at or in connection with the Site, including but not
limited to direct and .indirect costs, that EPA and the U.S.
Department of Justice on behalf of EPA have incurred and paid
through [insert date], including any costs reimbursed to the
State of ("the State") from the Hazardous Substance
Superfund established under subchapter A of chapter 98 of Title
26 of the U.S. Code (the "Hazardous Substance Superfund"), plus
accrued "Interest" on all such costs through such date. ["Future
Response Costs" includes all costs at or in connection with the
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Site, including but not limited to direct and indirect costs,
that EPA and the U.S. Department of Justice on behalf of EPA will
incur, including any costs to be reimbursed to the State of
from the Hazardous Substance Superfund, for (insert clear
description of the specific future or ongoing response action for
which costs are being compromised. Also attach and reference any
workplan or statement of work that describes the future or
ongoing response action for which costs are being compromised.)]
"Interest," in accordance with 42 U.S.C. 9607(a), shall mean
interest at the rate specified for interest on investments of the
Hazardous Substance Superfund, compounded on a [dally, monthly or
annual] basis.
[NOTE: If payments are to be made in installments, the
Region should include: 1) a statement of the total costs to be
paid, with a breakdown of the amount of each installment payment
and when it is due; 2} a requirement that interest be paid on
all installments; and 3) an acceleration provision under which
all remaining payments become due and payable immediately if any
one payment is missed.]
3. Each payment shall be made by certified or cashier's
check made payable to "EPA-Hazardous Substance Superfund." Each
check shall reference .the name and address of the Settling Party,
the Site name, and EPA CERCLA Number [insert Site/Spill ID
Number] and shall be sent by each Settling Party to:
EPA Superfund
[Insert Superfund lockbox number and address for Region]
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[NOTE: If payment is being directed to a site-specific special
account or other trust or escrow account, insert alternative
payment instructions.]
Each Settling Party shall simultaneously send a copy
of its check to:
[Insert name and address of Regional Attorney, Project
Manager> and Regional Financial Management Officer]
4. In the event that any payment required by Paragraph 2 of
this Agreement is not made when due, "Interest," as defined in
Paragraph 2, shall continue to accrue on the unpaid balance,
through the date of payment. In addition, if any amounts due to
EPA under Paragraph 2 are not paid by the required date, the
Settling Parties shall pay to EPA, as a stipulated penalty, $
per day that such payment is late. [An escalating penalty
payment schedule may be used.] Stipulated penalties are due and
payable within 30 days of the Settling Parties' receipt from EPA
of a demand for payment of the penalties. All payments to EPA
under this Paragraph shall be made in accordance with Paragraph 3
of this Agreement. [NOTE: If payment under Paragraph 3 is not
to the Superfund lockbox, insert separate Superfund lockbox
payment instructions here.] Penalties shall accrue as provided
above regardless of whether EPA has notified the Settling Parties
of the violation or made a demand for payment, but need only be
paid upon demand.
5. In addition to the Interest and Stipulated Penalty
payments required by Paragraph 4 of this Agreement and any other
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remedies or sanctions available to EPA by virtue of the Settling
Parties failure to make timely payments under this Agreement,
any Settling Party who fails or refuses to comply with any term
or condition of this Agreement shall be subject to enforcement
action pursuant to Section 122(h)(3) of CERCLA. If the United
States must bring an action to collect any payment required by
this Agreement, the Settling Parties shall reimburse the United
States for all costs of such action, including by not limited to
costs of attorney time.
6. The obligations of the Settling Parties to pay amounts
owed to EPA under this. Agreement are joint and several, in the
event of the failure of any one or more Settling Parties to make
the payments required under this Agreement, the remaining
Settling Parties shall be responsible for such payments.
7. Subject to Paragraph 8 [Reservations of Rights] of this
Agreement, upon payment of the amounts required by Paragraphs 2
[Past (and Future) Response Costs] and 4 [Interest and Stipulated
Penalties for Late Payment] of this Agreement, the Settling
Parties shall have resolved any and all civil liability to the
United States under Section 107(a) of CERCLA, 42 U.S.C. 9607(a),
for reimburseinent of "Past Response Costs" [and "Future Response
Costs"], as defined in Paragraph 2 of this Agreement, and under
Section 106(a) of CERCLA, 42 U.S.C. 9606(a), for performance of
the completed response action[s] that resulted [or will result]
in the incurrence of "Past Response Costs" [and "Future Response
Costs"], as defined in Paragraph 2 above.
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[NOTE: 1) If future costs are included, the release and
reopener provision must be carefully worded to ensure that the
agreement cannot be construed as releasing the Settling Parties
for future liability; 2) If an installment payment plan is used,
include the following at the end of Paragraph 7: "Resolution of
a Settling Party's liability under this Paragraph is conditioned
upon the veracity of the financial information provided to EPA,
and this Paragraph is null and void if EPA determines that the
information was materially false. Provision of false,
fictitious, or fraudulent statements or representations to the
United States may subject a Settling Party to criminal penalties
under 18 U.S.C. 1001."]
8. Except as provided in Paragraph 7 of this Agreement,
nothing contained herein shall in any way limit or restrict the
authority of the United States to initiate appropriate action
under Sections 104, 106, and 107 of CERCLA, 42 U.S.C. 9604, 9606,
9607, or any other provision of law, against the Settling Parties
or against any other person or entity not a party to this
Agreement. The resolution of liability set forth in Paragraph 7
of this Agreement does not pertain to any matters other than
those express-ly specified therein. The United States preserves,
and this Agreement is without prejudice to, all rights against
the Settling Parties with respect to all other matters, including
but not limited to the following:
a) claims based on a failure by the Settling Parties
to meet any requirement of this Agreement;
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b) liability for response costs that have been or may
be incurred at or in connection with the Site by the United
States that are not within the definition[a] in Paragraph 2 of
this Agreement of "Past Response Costs" [and "Future Response
Costs"];
c) liability for injunctive relief or administrative
order enforcement under Section 106 of CERCLA, except as provided
in Paragraph 7 of this Agreement;
d) liability arising from the past, present, or future
disposal, release, or threat of release of hazardous substances,
pollutants or contaminants outside of the Site;
e) liability for damages for injury to, destruction of,
or loss of natural resources;
f) criminal liability; and
g) liability for violations of federal or state law
which occur during or after implementation of any response action
at the Site.
9. Nothing in this Agreement is intended to be nor shall it
be construed as a release, covenant not to sue, or compromise of
any claim or cause of action, administrative or judicial, civil
or criminal, past or future, in law or in equity, whic£ the
United States may have against any person, firm, corporation or
other entity not a signatory to this Agreement.
10. The Settling Parties agree not to assert any claims or
causes of.action against the United States with respect to "Past
Response Costs," ["Future Response Costs,"J, the Site, or this
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Agreement, including, but not.limited to any direct or indirect
claim for reimbursement from the Hazardous Substance Super fund
through CERCLA Sections 106(b)(2), 111, 112, 113 or any other
provision, of law, [any claim against the United States, including;
any department, agency or instrumentality of the United States
under CERCLA Sections 107 or 113 related to the Site], or any
claims arising out of response activities at the Site. Nothing
in this Agreement shall be deemed to constitute preauthorization
of a claim within the meaning of Section 111 of CERCLA, 42 U.S.C.
9611, or 40 C.F.R. 300.700(d),.
11. Nothing in this Agreement shall be construed to create
any rights in, or grant any cause of action to, any person not a
•> j"
party, to'this Agreement. The preceding sentence shall not be
construed to waive or nullify any rights that any person not a
signatory to this Agreement may have under applicable law. The
United States and the Settling Parties each reserve any and all
rights (including, but not limited to, any right to
contribution), defenses, claims, demands,, and causes of action
which each' party may have with respect to any matter,
transaction, or occurrence relating in any way to the Site
against any pierson not a party hereto.
12. With respect to claims for contribution against the
Settling Parties, the Settling Parties are entitled to protection
from contribution actions or claims as provided by Sections
113(f)(2) and 122(h)(4) of CERCLA, 42 U.S.C. 9613(f)(2) and
9622(h)(4), for "Past Response Costs" [and "Future Response
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Costs"] as defined in Paragraph 2 of this Agreement. Such
protection is conditioned upon the Settling Parties' compliance
with the requirements of this Agreement. The Settling Parties
agree that with respect to any suit or claim for contribution
brought by them for matters related to this Agreement they will
notify EPA in writing no later than 60 days prior to the
initiation of such suit or claim. The Settling Parties also
agree that with respect to any suit or claim for contribution
brought against them for matters related to this Agreement they
will notify EPA in writing within 10 days of service of the
complaint on them. In addition, Settling Parties shall notify
EPA within 10 days of service or receipt of any Motion for
Summary -.Judgment and within 10 days of receipt of any order from-
a court setting a case for trial.
13. In any subsequent administrative or judicial proceeding
initiated by the EPA or the United States on behalf of EPA for
injunctive relief, recovery of response costs, or other
appropriate relief relating to the Site, Settling Parties shall
not assert, and may not maintain, any defense or claim based upon
the principles of waiver, rsfl judicata, collateral estoppel,
issue preclusion, claim-splitting, or other defenses based upon
any contention that the claims raised in the subsequent
proceeding were or should have been brought in the instant
action; provided, however, that nothing in this Paragraph affects
the enforceability of the resolution of liability included in
Paragraph 7 of this Agreement.
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14. Bach Settling Party hereby certifies, individually,
that it has not altered, mutilated, discarded, destroyed or
otherwise disposed of any records, documents, or other
information relating to its potential liability regarding the
Site since notification of potential liability or the filing of a
suit against the Settling Party regarding the Site and that it
has fully complied with any and all EPA requests for information
pursuant to Sections 104(e) and 122(e) of CERCLA and Section 3007
of the Resource Conservation and. Recovery Act, 42 U.S.C. 6927.
Provision, of false, fictitious!, or fraudulent statements or
representations to the United States may subject a Settling Party
to criminal penalties under 18 U.S.C. 1001.
15. This Agreement shall be subject to a thirty-day public
comment period pursuant to Section 122(i) of CERCLA. In
accordance with Section 122 (i)(3) of CERCLA, EPA may modify or
withdraw its consent to this Agreement if comments received
disclose facts or considerations which indicate that this
Agreement is inappropriate, improper or inadequate.
16. The effective date of this Agreement shall be the date
upon which EPA issues written notice that the public comment
period pursuant to Paragraph 15 of this Agreement has closed and
that comments received, if any, do not require modification of or
EPA withdrawal from this Agreement.
[NOTE ON POSSIBLE ADDITIONAL PROVISIONS: Insert an "Access"
provision if access to the Site is needed and the site owner is a
Settling Party or other Settling Parties control access to the
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Site or to other property to which access is needed. Insert an
"Access to Information" provision if the Settling Parties have
been or will be involved in cleanup efforts at the Site or if
they may possess information which may assist the Agency in its
cleanup or enforcement efforts. Insert a "Retention of Records"
provision if the Settling Parties have or may come into
possession of records or documents that relate to response
actions at the Site or to the liability of any person at the
Site.]
IT IS SO AGREED:
[Settling Parties]
By:
[Name] [Date]
U.S. Environmental Protection Agency
By:
[Name] [Date]
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APPENDIX B
MODEL SECTION 122(h)(1) COST RECOVERY AGREEMENT
FOR PAST COSTS AND FUTURE OVERSIGHT COSTS
EN THE MATTER OF:
AGREEMENT FOR PAYMENT
OF RESPONSE COSTS
(Site Name)
(City or Town, County, State)
U.S. EPA Region
CERCLA Docket NoT
(Names of settling Parties.
It marny, reference attached
List.)
PROCEEDING UNDER SECTION
122(h)(1) OF CERCLA,
42 U.S.C. 9622(h) (1)
SETTLING PARTIES )
[NOTE: This model is designed for settlements that
compromise past costs and that require a mechanism for billing
the settling parties for 100% of future removal or remedial
oversight costs.]
This Agreement is made and entered into by the United
States jEnvironmental Protection Agency ("EPA") and the
[insert names or reference attached list of settling parties]
("Settling Parties"). This Agreement concerns the [insert Site
name] (the "Site") located in [insert Site location]. The
purpose of this Agreement is for EPA to recover "Past Response
Costs" and "Oversight Costs" as defined in Paragraphs 2 and 3,
respectively, of this Agreement and to resolve the liability of
the Settling Parties for such costs.
EPA is authorized to enter into this Agreement pursuant to
the authority vested in the Administrator of the EPA by Section
122(h)(1) of the Comprehensive Environmental Response,
4-
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Compensation, and Liability Act of 1980, as amended by the
Superfund Amendments and Reauthorization Act of 1986, Pub. L. No.
99-499 ("CERCLA"), which authority has been delegated to the
Regional Administrators of the EPA by EPA Delegation No. 14-14-D
(Sept. 13, 1987).
WHEREAS, EPA alleges that hazardous substances as defined by
Section 101(14) of CERCLA, 42 U.S.C. 9601(14), are present at the
Site and that such hazardous substances have been or are
threatened to be released into the environment from the Site;
WHEREAS, EPA alleges that the Site is a "facility" as
defined in Section 101(9) of CERCLA, 42 U.S.C. 9601(9);
WHEREAS, EPA alleges that such releases or threatened
releases required response action to be undertaken at the Site
pursuant to Section 104 of CERCLA, 42 U.S.C. 9604, and will
require additional response action to be undertaken in the
future;
WHEREAS, EPA alleges that in performing this response
action, response costs have been incurred at or in connection
with the Site pursuant to Section 107 of CERCLA, 42 U.S.C. 9607,
and that further response costs will be incurred in the future;
WHEREAS,- EPA alleges that the Settling Parties are
responsible parties pursuant to Section 107(a) of CERCLA, 42
U.S.C. 9607(a), and are jointly and severally liable for response
costs incurred and to be incurred at or in connection with the
Site;
[NOTE: If DOJ approval of this Agreement is required by
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Section 122(h)(1) of CERCLA because total past and projected
response costs at the Site exceed $500,000, excluding interest,
and the Agreement compromises a claim, the Agreement should state
the following: "WHEREAS, the Attorney General or his designee
has issued prior written approval of the settlement embodied in
this Agreement pursuant to Section 122(h)(1) of CERCLA." If DOJ
approval of the Agreement is not required by Section 122(h)(1),
the Agreement should state the following: "WHEREAS, the Regional
Administrator [or his/her delegatee] of EPA, Region , has
determined that the total response costs incurred by the United
States to date at or in connection with the Site do not exceed
$500,000, excluding interest, and that, based upon information
currently available to EPA, total United States response costs at
or in connection with the Site are not anticipated to exceed
$500,000, excluding interest, in the future]; and
WHEREAS, EPA and the Settling Parties desire to settle
certain claims arising from the Settling Parties' alleged
involvement with the Site without litigation and without the
admission or adjudication of any issue of fact or law;
NOW, THERBFORE, EPA and the Settling Parties, in considera-
tion of the promises herein, and intending to be legally bound
hereby, agree as follows:
l. This Agreement shall be binding upon EPA and shall be
binding upon the Settling Parties and their [heirs], successors
and assigns. Each signatory to this Agreement represents that he
or she is fully authorized to enter into the terms and conditions
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of this Agreement and to bind legally the party represented by
him or her. The Settling Parties agree to undertake all actions
required by this Agreement. The Settling Parties consent to and
will not contest EPA's authority to enter into this Agreement or
to implement or enforce its terms.
2. Within 30 days of the effective date of this Agreement,
the Settling Parties shall pay to the Hazardous Substance
Superfund $ in reimbursement of EPA's claim for "Past
Response Costs," plus "Interest" on that amount calculated from
(insert date from "Past Response Costs" as defined below) through
the date of payment. "Past Response Costs" includes all costs at
or in connection with the Site, including but not limited to
direct and indirect costs, that EPA and the U.S. Department of
Justice on behalf of SPA have incurred and paid through {insert
date], including any costs reimbursed to the State of (the
"State") from the Hazardous Substance Superfund established under
subchapter A of chapter 98 of Title 26 of the U.S. Code
("Hazardous Substance Superfund"), plus accrued "Interest" on all
such costs through such date. "Interest," in accordance with 42
U.S.C. 9607(a), shall mean interest at the rate specified for
interest on investments of the Hazardous Substance Superfund,
i
compounded on a [daily, monthly or annual] basis. Payment shall
be made in accordance with the requirements of Paragraph 4 of
this Agreement.
[NOTE: If past cost payments are to be made in
installments, the Region should include: l) a statement of the
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total costs to be paid, with a breakdown of the amount of each
installment payment and when it is due; 2) a requirement that
interest be paid on all installments; and 3) an acceleration
provision under which all remaining payments become due and
payable immediately if any one payment is missed.]
3. The Settling Parties shall also reimburse EPA for
"Oversight Costs" incurred and paid by BPA that are not
inconsistent with the National Oil and Hazardous Substances
Pollution Contingency Plan promulgated pursuant to Section 105 of
CERCLA, 42 U.S.C. 9605, codified at 40 C.F.R. Part 300, including
but not limited to any amendments thereto ("NCP"). "Oversight
Costs" includes all costs, including but not limited to direct
and indirect costs, that EPA and the U.S. Department of Justice
on behalf of EPA incur and pay at or in connection with the Site
after the date set forth in the definition of "Past Response
Costs" in Paragraph 2 above, for reviewing or developing plans,
reports, and other items at or in connection with the Site,
overseeing [insert, as appropriate, "removal actions," "remedial
design and/or remedial action," "response actions"] undertaken at
the Site by persons other than EPA, or implementing, overseeing,
or enforcing .this Agreement, including but not limited, to payroll
costs, contractor costs, travel costs, laboratory costs, costs of
attorney time, costs of obtaining access to the Site including
any just compensation, any costs reimbursed to the State from the
Hazardous Substance Superfund, and Interest as defined in
Paragraph 2 above on all such costs. EPA will send the Settling
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Parties a bill requiring payment that includes a (name standard
Regionally-prepared EPA cost summary, which includes direct and
indirect costs incurred by EPA, DOJ and their contractors, and
any costs £or which the State has been reimbursed by the
Superfund] on a [insert frequency of billings, e.g.. quarterly]
basis. The Settling Parties shall make all payments within 30
days of the Settling Parties' receipt of each bill requiring
payment, except as otherwise provided in Paragraph 6 [Dispute
Resolution] of this Agreement. All payments shall be made in
accordance with the requirements of Paragraph 4 of this
Agreement.
4. Each payment shall be made by certified or cashier's
check made payable to "EPA-Hazardous Substance Superfund." Each
check shall reference the name and address of the Settling Party,
the Site name, and BPA CERCLA Number [insert Site/Spill ID
Number] and shall be sent by each Settling Party to:
EPA Superfund
[Insert Superfund lockbox number and address for Region]
[NOTE: If the past cost payment is being directed to a site-
specific special account or other trust or escrow account, insert
alternative payment instructions for the past costs. EPA
oversight costs payments will always be directed to the
Superfund.]
Each Settling Party shall simultaneously send a copy
of its check to:
[Insert name and address of Regional Attorney, Project
Manager, and Regional Financial Management Officer]
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5. In the event that any payment required by Paragraph 2 or
3 of this Agreement is not made when due, "Interest," as defined
in Paragraph 2, shall continue to accrue on the unpaid balance,
through the date of payment. In addition, if any amounts due to
EPA under Paragraph 2 or 3 are not paid by the required date, the
Settling Parties shall pay to EPA, as a stipulated penalty, $ ¦
per day that such payment is late. [An escalating penalty
payment schedule may be used.] Stipulated penalties are due and
payable within 30 days of the Settling Parties' receipt from EPA
of a demand for payment of thei penalties; All payments to EPA
under this Paragraph shall be made in accordance with the
requirements of Paragraph 4 of this Agreement. [NOTE: If
payment under Paragraph 4 is not to the Superfund lockbox, insert
separate Superfund lockbox payment instructions here.] Penalties
shall accrue as provided above regardless of whether EPA has
notified the Settling Parties of the violation or made a demand
for.payment, but need only be paid upon demand. If the Settling
Parties invoke the dispute resolution procedures in Paragraph €
of this Agreement, stipulated penalties shall continue to accrue,
but payment shall be stayed pending resolution of the dispute.
If the Settling Parties do not prevail in the dispute,;stipulated
penalties shall be assessed and paid as provided in this
Paragraph.
6. The dispute resolution procedures in this Paragraph
shall be the exclusive mechanism for resolving disputes regarding
the Settling Parties' obligation to reimburse EPA for "Oversight
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Costa." All notices to EPA under this Paragraph shall be sent to
the Regional Attorney at the address set forth in Paragraph 4 of
this Agreement.
a. The Settling Parties may contest payment of any
"Oversight Costs" billed by EPA if they determine that EPA has
made an accounting error or if they allege that a costs item that
is included represents costs that are inconsistent with the NCP.
Any objection to the payment of any "Oversight Costs" shall be
made in writing within 30 days of receipt of the bill requiring
payment. Any such objection (the "Notice of Objection") shall
specifically identify the contested "Oversight Costs" and the
basis for objection.
b. In the event of an objection to some but not all
"Oversight Costs," the Settling Parties shall, within 30 days of
receipt of a bill for disputed "Oversight Costs," pay all
uncontested "Oversight Costs" to EPA in the manner specified in
Paragraph 4 above. The Settling Parties shall also, within the
30-day period, establish an interest-bearing escrow account in a
federally-insured bank duly chartered in the State of and
remit to that escrow account funds equivalent to the amount of
the contested "Oversight Costs." The Settling Parties; shall send
to EPA a copy of the correspondence that establishes and funds
the escrow account, including, but not limited to, information
containing the identity of the bank and the bank account under
which the escrow account is established as well as a bank
statement showing the initial balance of the escrow account.
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c. Any dispute with respect to "Oversight Costs" shall
in the first instance be the subject of informal negotiations
between the"Settling Parties and EPA. The period for informal
negotiations shall not exceed 20 days from EPA's receipt of the
Notice of Objection, unless such time limit is modified by
written agreement of EPA and the Settling Parties. If the
dispute is resolved by informal negotiations, EPA and the
Settling Parties shall reduce their agreement to writing (the
"Written AgreementB), which, upon signature by EPA and the
Settling Parties, shall be incorporated into and become an
enforceable part of this Agreement.
d. If the dispute is not resolved through informal
negotiations, an EPA management official at the (Region specific)
level or higher will issue to the Settling Parties a written
decision on the dispute (the "Written Decision.") EPA's Written
Decision shall be incorporated into and become an enforceable
part of this Agreement.
e., Within 10 days of execution of the Written
Agreement pursuant to Subparagraph 6 (c), or within 10 days of the
Settling Parties' receipt of the Written Decision pursuant to
.Subparagraph 5,(d), the Settling Parties shall pay to E^A from the
escrow account any amounts determined to be owed to EPA, plus
Interest on such amounts that has accrued between the date that
payment was due under Paragraph 3 of this Agreement through the
date of payment under this Subparagraph 6(e).
f. No EPA decision made pursuant to the dispute
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resolution procedures in Paragraph 6 of this Agreement shall
constitute a final agency action giving rise to judicial review.
7. In addition to the Interest and Stipulated Penalty
payments required by Paragraph 5 of this Agreement and any other
remedies or sanctions available to EPA by virtue of the Settling
Parties' failure to make timely payments under this Agreement,
any Settling Party who fails or refuses to comply with any term
or condition of this Agreement shall be subject to enforcement
action pursuant to Section 122(h)(3) of CERCLA. If the United
States must bring an action to collect any payment required by
this Agreement, the Settling Parties shall reimburse the United
States for all costs of such action, including by not limited to
costs of attorney time.
a. The obligations of the Settling Parties to pay amounts
owed to EPA under this Agreement are joint and several. In the
event of the failure of any one of more Settling Parties to make
the payments required tinder this Agreement, the remaining
Settling Parties shall be responsible for such payments.
9. Subject to Paragraph 10 of this Agreement, upon payment
of the amounts required by Paragraphs 2 [Past Response Costs] and
5 [Interest and Stipulated Penalties for Late Payment gf Past
Response CostsJ of this Agreement, the Settling Parties' shall
have resolved any and all civil liability to the United States
under Section 107(a) of CERCLA, 42 U.S.C. 9607(a), for
reimbursement of "Past Response Costs" and "Oversight Costs," as
defined in Paragraphs 2 and 3, respectively, of this Agreement,
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and under Section 106(a) of CERCLA, 42 U.S.C. 9606(a), for
performance of the completed response action[s] that resulted or
will result in the incurrence of "Past Response Costs" or
"Oversight Costs," as defined in Paragraphs 2 and 3,
respectively, above. Resolution of the Settling Parties'
liability under this Paragraph is conditioned upon the complete
and satisfactory performance by the Settling Parties of their
obligations under this Agreement, including, but not limited to,
payment of "Oversight Costs" as required by Paragraph 3 of this
Agreement.
[NOTE: If an installment payment plan is used for past
costs, include the following at the end of Paragraph 9:
"Resolution of a Settling Party's liability under this Paragraph
is also conditioned upon the veracity of the financial
information provided to EPA, and this Paragraph is null and void
if EPA determines that the information was materially false.
Provision of false, fictitious, or fraudulent statements or
representations to the United States may subject a Settling Party
to criminal penalties Under 18 U.S.C. 1001."]
10. Except as provided in Paragraph 9 of this Agreement,
nothing contained herein shall in any way limit or restrict the
authority of the United States to initiate appropriate action
under Sections 104, 106, and 107 of CERCLA, 42 U.S.C. 9604, 9606,
9607, or any other provision of law, against the Settling Parties
or against any other person or entity not a party to this
Agreement. The resolution of liability set forth in Paragraph 9
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of this Agreement does not pertain to any matters other than
those expressly specified therein. The United States reserves,
and this Agreement is without prejudice to, all rights against
the Settling Parties with respect to all other matters, including
but not limited to the following:
a) claims based on a failure by the Settling Parties
to meet any requirement of this Agreement;
b) liability for response costs that have been or may
be incurred at or in connection with the Site by the United
States that are not within the definitions of "Past Response
Costs" and "Oversight Costs" in Paragraphs 2 and 3, respectively,
of this Agreement;
c) liability for injunctive relief or administrative -
order enforcement under Section 106 of CERCLA, except as provided
in Paragraph 9 of this Agreement;
d) liability arising from the past, present, or future
disposal, release, or threat of release of hazardous substances,
pollutants or contaminants outside of the Site;
e) liability for damages for injury to, destruction of,
or loss of natural resources;
f) criminal liability; and
g) liability for violations of federal or state law
which occur during or after implementation of any response action
at the Site.
11. Nothing in this Agreement is intended to be nor shall
it be construed as a release, covenant not to sue, or compromise
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of any claim or cause of action, administrative or judicial,
civil or criminal, past or future, in law or in equity, which the
United States may have against any person, firm, corporation or
other entity not a signatory to this Agreement.
12. The Settling Parties agree not to assert any claims or
causes of action against the United States with respect to "Past
Response Costs,11 "Oversight Costs", the Site, or this Agreement,
including, but not limited to any direct or indirect claim for
reimbursement from the Hazardous Substance Superfund through
CERCLA Sections 106(b)(2), 111, 112, 113 or any other.provision
of law, [any claim against the United States, including any
department, agency or instrumentality of the United States under
CERCLA Sections 107 or 113 related to the Site,] or any claims
arising out of response activities at the Site. Nothing in this
Agreement shall be deemed to constitute preauthorization of a
claim within the meaning of Section 111 of CERCLA, 42 U.S.C.
9611, or 40 C.F.R. 300.700(d).
13. Nothing in this Agreement shall be construed to create
amy rights in, or grant any cause o£ action to, any person not a
party to this Agreement. The preceding sentence shall not be
construed to-waive or nullify any rights that any person not a
• " i
signatory to this Agreement may have under applicable law. The
United States and the Settling Parties each reserve amy and all
rights (including, but not limited to¦, any right to
contribution), defenses, claims, demands, and causes of action
which each party may have with respect to any matter,
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transaction, or occurrence relating in any way to the Site
against any person not a party hereto.
14. With respect to claims for contribution against the
Settling Parties, the Settling Parties are entitled to protection
from contribution actions or claims as provided by Sections
113(f)(2) and 122(h)(4) of CERCLA, 42 U.S.C. 9613(f)(2) and
9622(h)(4), for "Past Response Costs" and "Oversight Costs" as
defined in Paragraphs 2 and 3, respectively, of this Agreement.
Such protection is conditioned upon the Settling Parties'
compliance with the requirements of this Agreement. The Settling
Parties agree that with respect to any suit or claim for
contribution brought by them for matters relating to this
Agreement they will notify EPA in writing no later than 60 days
prior to the initiation of such suit or claim. The Settling
Parties also agree that with respect to any suit or claim for
contribution brought against them for matters related to this
Agreement they will notify EPA in writing within 10 days of
service of the complaint on them. In addition, Settling Parties
shall notify EPA within 10 days of service or receipt of any
Motion for Summary Judgment and .within 10 days of receipt of any
order from a-court setting a case for trial.
15. In any subsequent administrative or judicial proceeding
initiated by the EPA or the United States on behalf of EPA for
injunctive relief, recovery of response costs, or other
appropriate relief relating to the Site, Settling Parties shall
not assert, and may not maintain, any defense or claim based upon
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the princiDles of waiver. res judicata, collateral estoppel,
issue preclusion, claim-splitting, or other defenses based upon
any contention that the claims raised in the subsequent
proceeding were or should have been brought in the instant
action; provided, however, that nothing in this Paragraph affects
the enforceability of the resolution of liability included in
Paragraph 9 of this Agreement.
16. Each Settling Party hereby certifies, individually,
that it has not altered, mutilated, discarded, destroyed or
otherwise disposed of any records, documents, or other
information relating to its potential liability regarding the
Site since notification of potential liability or the filing of a
suit against the Settling Party regarding the Site and that it
has fully complied with any and all EPA requests for information
pursuant to Sections 104(e) and 122(e) of CERCLA and Section 3007
of the Resource Conservation and Recovery Act, 42 U.S.C. 6927.
Provision of false, fictitious, or fraudulent statements or
representations to the United States may subject a Settling Party
to criminal penalties .under 18 U.S.C. 1001.
17. This Agreement shall be subject to a thirty-day public
comment period-pursuant to Section 122(i) of CERCLA. In
accordance with Section 122 (i)(3) of CERCLA, EPA may modify or
withdraw its consent to this Agreement if comments received
disclose facts or considerations which indicate that this
Agreement is inappropriate, improper or inadequate.
18. The effective date of this Agreement shall be the date
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upon which EPA issues written notice that the public comment
period pursuant to Paragraph 17 of this Agreement has closed and
that comments received, if any, do not require modification of or
EPA withdrawal from this Agreement.
[NOTE ON POSSIBLE ADDITIONAL PROVISIONS: Insert an "Access"
provision if access to the Site is needed and the site owner is a
Settling Party or other Settling Parties control access to the
Site or to other property to which access is needed. Insert em
"Access to Information" provision if the Settling Parties have
been or will be involved in cleanup efforts at the Site or if
they may possess information which may assist the Agency in its
cleanup or enforcement efforts. Insert a "Retention of Records"
provision if the Settling Parties have or may come into
possession of records or documents that relate to response
actions at the Site or to the liability of any person at the
Site.]
IT IS SO AGREED:
[Settling Parties]
By:
[Name]
[Date]
U.S. Environmental Protection Agency
By:
[Name]
[Date]
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APPENDIX C
MODEL SECTION 122(b)(1) and (9)(4)
FEDERAL REGISTER NOTICE
[NOTE: Proper format is very important for a Federal
Register notice. The format is shown in the following model.
Heading titles may not be varied. The notice should be double
spaced. The top, bottom and right margins should be one inch
wide. The left margin should be one and a half inches wide.
Each page, including the first, should be consecutively numbered.
The notice should be typed on plain bond paper; EPA letterhead
stationary should not be used. The notice should be signed by
the Regional official authorized to enter into the settlement
pursuant to EPA Delegation 14-14-D or 14-14-E, as appropriate.
The name and title of the official signing the notice should be
typed on the notice. If an acting official will be signing for
the authorized official, the acting official's name and the
acting official's title, e.g.. "Acting Regional Administrator,"
must be typed on the notice.]
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ENVIRONMENTAL PROTECTION AGENCY
[ ] [NOTE: Leave brackets blank.]
NOTICE OF PROPOSED ADMINISTRATIVE SETTLEMENT PURSUANT TO THE
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND
LIABILITY ACT, AS AMENDED BY THE SUPERFUND AMENDMENTS AND
REAUTHORIZATION ACT
AGENCY: Environmental Protection Agency
ACTION: Notice; request for public comment
SUMMARY: In accordance with Section 122(i) o£ the
Comprehensive Environmental Response, Compensation, and
Liability Act, as amended by the Superfund Amendments and
Reauthorization Act ("CERCLA"), notice is hereby given that
a proposed administrative [insert either "cost recovery" or
"de minimis"1 settlement concerning the [insert site name]
site in [insert site location] was signed by the EPA
Regional Administrator, Region , and issued by the Agency
on [insert date of issuance]. The settlement resolves an
EPA claim under [insert "Section 107 of CERCLA" for a
Section 122(h)(1) agreement; insert, as appropriate,
"Sections 106 and 107 of CERCLA" for a Section 122(g)(4)
consent order] against [insert name(s) of all settling
parties]. The settlement requires the settling party(ies)
to pay $ [insert total amount to be paid under
settlement] to the Hazardous Substances Superfund.
For thirty (30) days following the date of publication
of this notice, the Agency will receive written comments
relating to the settlement. The Agency's response to any
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- 2 -
comments received will be available for public inspection at
[insert address o£ information repository at or near the
site] and [insert address of Regional public docket].
DATES: * Comments must be submitted on or before [30 days
from date of publication]. [NOTE: Do not fill in a date;
just type the DATES sentence as it appears here.]
ADDRESSES: The proposed settlement and additional
background information relating to the settlement are
available for public inspection at [insert address of
Regional public docket or other Regional office location.]
A copy of the proposed settlement may be obtained from
[insert name, address and telephone number of Regional
docket clerk or other Regional representative.] Comments
should reference the [insert site name, location] and EPA
Docket No. [insert EPA Docket number for the
settlement] and should be addressed to [insert name and
address of Regional docket clerk or other Regional
representative designated to receive comments.]
FOR FURTHER INFORMATION CONTACT: [Insert name, address and
telephone number of Regional representative who has
knowledge of the settlement].
[Insert typed name and
title of Regional Official]
Date
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Cardinal
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DE MICROMIS SETTLEMENT
DOCUMENT
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
NOV 7 iooi
OFFICE OF EWORCEMENT
John C. Cruden, Chief
U.S. Department of Justice
Environment and Natural Resources Division
Environmental Enforcement Section
10th and Constitution, N.W., Room 1521
Washington, D.C. 20530
Dear John,
As we discussed last Tuesday, EPA has been developing a de
micromis party settlement strategy. We have recently completed a
strawman proposal, which is enclosed, and wish to discuss both
the general principles involved, and any future plans to
implement the policy with DOJ. In addition to the strawman
proposal, we are also enclosing drafts of a model cover letter,
administrative order on consent, information
request/certification, and Federal Register notice for your
consideration.
EPA uses the term de micromis parties to describe generators
or transporters that contributed a minuscule amount of hazardous
substances to the superfund site. The Superfund Division
developed this proposal to address concerns regarding
implementation of the Superfund liability scheme to provide
fairness, equity and repose to truly peripheral PRPs whom we
ourselves would neither notice nor seek to hold responsible for
response costs. As you recall, these issues were recently
highlighted by the third party litigation at the Ludlow, Mew York
landfill site where the major Ludlow defendants sued tiny
generators, such as pizza parlors and diners, for contribution.
I will be calling you shortly to discuss this project with
you in greater detail.
Sincerely yours
William A. White
Enforcement Counsel for Superfund
cc: Anna Swerdell, Senior Attorney, DOJ
Cynthia Huber, Senior Attorney, DOJ
Enclosure
Priaud m RtcycUd Paper
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3. The Regional Administrator can enter into de micromis
settlements without DOJ's pre-approval. (See authority
listed in Section 4.)
4. The de micromis settlements are outside Section 122 of
CERCLA. The Agency will use the following provisions as
authority: the §122(a) opt-out provision; CERCLA §107; the
Agency's residual settlement authority; the Federal Claims
Collection Act of 1966, 31 U.S.C. §3711 as amended by the
U.S. Debt Collection Act of 1982, 5 U.S.C. §§552a (b) and
(m); 40 CFR Part 13; and the Administrative Dispute
Resolution Act (P.L. 101-552).
5. The de micromis settlement offers a full covenant not to sue
and contribution protection without charging a premium.
6. Re-openers are only for incomplete, inaccurate or new
information showing the settlor's waste contribution does
not qualify for a de micromis settlement.
7. Criteria for de micromis settlors:
Either of the following are minuscule in comparison to
other hazardous substances at the facility:
(i) The amount of the hazardous substances contributed
by the party to the facility.
(ii) The toxic or other hazardous effects of the
substances contributed by the party to the facility.
Procedures
The Agency can enter into de micromis settlements as soon as
it can reasonably calculate the de micromis party's fair share of
the clean up costs, fie micromis settlements can be used
separately or in conjunction with de minimis settlements.
The Region sends out the notice letter, Administrative Order
on Consent ("Consent Order") and Information Request/Certifica-
tion to the de micromis party. The micromis settlor then
sends the Region the completed Information Request/Certification,
certified or cashier's check and the Consent Order with a signed
signature page. The Region places the certified or cashier's
check into the Region's specialized account and publishes the
Federal Register notice. (The Region may save the individual
Federal Register notices and publish a group for the site every
quarter.) The Regional Administrator determines whether to
approve the Consent Order after the public comment period
expires. The Region releases the funds to the appropriate
Superfund account after final approval. If the Region does not
approve the settlement, the money is returned to the party.
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Issues
* Statutory Authority
Recommended Authority - Legal Theory
OGC currently recommends using the Agency's residual
authority to enter into settlement outside of §122 for de
micrdmis' settlements. The Agency had authority to enter into
CERCLA settlements prior td the creation of §122 in SARA.
Congress clearly did not intend §122 to be the Agency's exclusive
mechanism to enter into settlements. Section 122(a) states:
"If the President decides not to use the procedures in this
section, the President shall notify in writing potentially
responsible parties at the facility of such decision and
reasons why use of the procedures is inappropriate. A
decision of the President to use or not to use the
procedures in this section is not subject to judicial
review."
OGC advocates publishing the Agency's decision not to follow
§122 procedures for c|e micromis settlements in the - Federal
Register to give the PRPs notice. OGC says EPA does not have to
individually notify eveiy PRP if the notification is contained
the general notice for the de micromis settlement policy and
subsequent de micromis settlements published in the Federal
Registesr. Publishing the\ settlements in the Federal Register
also addresses due process concerns.
By going outside §122 procedures, the Agency can limit the
de micromis settlement reopeners to new and/or inaccurate
inforaation showing the party does not qualify for a de micromis
settlement. We will also not be bound by §122 (f) requirements
when granting a future covenant not to sue. (See earlier
discussion.) Therefore, we can give a de micromis settlor an
immediately effective future covenant not to sue comparable to de
minimis settlors.
The Agency will not need DOJ pre-approval for de micromis
settlements. Congress specifically allows the Agency to enter
into settlements without following §122. The Agency c^n claim it
is using this residual authority to settle claims outside of
§122. The Agency has the authority to determine PRPs and assess
cost recovery claims under CERCLA §107. The Agency would then
rely on the Federal Claims Collection Act of 1966, 31 U.S.C.
§3711 as amended by the U.S. Debt Collection Act of 1982, 5
U.S.C. §§552a (b) and (m); 40 CFR Part 13 and the Administrative
Dispute Resolution Act (P.L. 101-552). These provisions give
government agencies authority to collect or compromise claims
under $100,000. (31 U.S.C. 3711 et ai.)
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OGC interprets the Federal Claims Collection Act of 1966 and
subsequent amendments to allow collection or compromise debts
owed to the government that are under $100,00 for each claim. We
anticipate the de micromis parties fair share of site clean up
costs to be well below $100,000.
The Regional Administrators will have the authority to
recover the £e micromis party's full fair share of clean up costs
using the above authority. OGC will have to authorize
settlements with de micromis parties if EPA wants to compromise
the claims.
Other Potential Authorities - Legal Theories
We previously recommended using CERCLA §122(a) as the
statutory authority for de micromis settlements. We withdraw
that recommendation after discussing the matter further 'with OGC.
Section 122(a) authorizes the President to enter into
agreements that are "in the public interest and consistent with
the National Contingency Plan in order to expedite effective
remedial actions and minimize litigation." We could'argue that
§122(a) allows the Agency not to follow the requirements'
specified in § 122(g) and (h) settlements for de micromis
settlements; However, we would be bound by the restrictions in
§122(f). This provision requires: 1.) certification of the
remedial action as complete before the future covenant not to sue
takes effect; 2.) a reopener for unknown conditions, or an
explanation of extraordinary circumstances for a future covenant
not to sue; and 3.) a §106 consent decree.
We also-discussed conducting de micromis settlements using
§122(g) or §122(h) as authority. Section 122(g) addresses de
minimis settlements. De minimis settlements give the PRPs
contribution protection, an immediately effective covenant not to
sue for future liability and limited reopeners. However, de
minimis settlements require volumetric and toxicity findings.
The Regions usually produce burdensome waste-in lists or NBARs to
fulfill this requirement. Section 122 (g)- settlements also
require DOJ pre-approval for administrative orders when the total
response costs are over $500,000. We recommend not using §122(g)
for settlement authority since de micromis settlement^ are
supposed to be designed to be less administratively burdensome
then the dg minimis settlements.
Section 122(h) addresses administrative cost recovery
settlements. Section 122(h) settlements give the PRPs
contribution protection and can only provide limited releases
from liability. In addition, §122(h) requires DOJ pre-approval
of settlements involving sites.with over $500,000 in total
response costs.
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We could ask DOJ to develop a rubber stamp approval
procedure for de micromis settlements using the §122(g) or (h)
authority. However, we would still have the other statutory
restrictions discussed above.
* Premiums
We believe the Agency can give a full covenant not to sue to
de microtis parties without a premium. (A premium in de minimis
settlements compensates the government for giving up certain re-
openers and assuming greater risk.) We do not think the Agency
should charge a premium to the £e micromis parties because we
will have reopeners if new information shows the settlor should
not be a de micromis party or the settlor provides false
information.
* Contribution Protection
We recommend following the Agency's current policy for
contribution protection based on CERCLA §113(f). The Agency
would have to change the existing policy if we wish to give more
extensive contribution protection to de micromis settlors.
The Agency could make the following arguments to justify
expanding contribution protection for de micromis parties:
1. Full contribution protection is warranted for de
micromis parties since ;the government does not normally
pursue parties that contribute such a tiny amount of
hazardous substances to a site.
2. Public policy reasons to encourage de micromis
settlements and protect tiny parties from incurring
further costs in third party litigation.
3. EPA can decide that the "matter addressed" in such as
settlement encompasses the entirety of EPA's claims
* associated with hazardous substance releases or threat
of releases from the facility.
* No DOJ Approval
In order to expedite the settlement procedure we'recommend
not requiring DOJ approval of the de micromis Administrative
Orders on Consent. (See earlier discussion.)
Conclusion
We believe this de micromis settlement proposal creates a
procedure that will expedite settlements and reduce litigation
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coxfiomifti
costs at Superfund sites. We recommend circulating this proposal
at the RCBC meeting in Santa Fe this month. We will then form a
workgroup with OGC, OWPE, DO J, OE and Regional staff to finalize
the policy:
Attachments
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APPENDIX A
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csimiimi
[Model Demand Letter and Settlement Offer for De Micromis
Settlements!
[Date]
[Name and Address of De Kicromls Party]
Dear: [insert name]
This letter informs you that EPA is conducting site
investigations and cleanup actions under the Comprehensive
Environmental Response, Compensation, and Liability Action
("CERCLA") at the [site name] in [county], [State] (the "Site").
CERCLA (also known as "Superfund") gives EPA the authority to
take actions to protect public health, welfare, and the
environment at a Superfund site. In addition, it gives EPA the
authority to 1) order any "liable" person to cleanup a Superfund
site, or 2) sue any "liable" person to pay EPA the costs the
Agency incurs to clean up a site. A "liable'' person is any owner
or operator of the site, and any person that arranged for the
disposal of hazardous substances at, or transported hazardous
substances to, the site. A liable person may have to pay for or
perform cleanup for the entire site, although he or she is free
to sue other liable parties for their fair share of cleanup
costs.
According, to our information, you are a person liable for a
minuscule amount of the hazardous substances at the site. EPA's
policy for parties such as you is to offer an early settlement to
resolve your liabilities at the site.
Under tlte terms of the settlement, the United States
promises that it will not pursue you again (called a "covenant
not to sue") for future costs incurred at the Site except in very
limited circumstances. The settlement also provides you with
"contribution protection" which largely precludes other parties
involved In this Site from making you pay them for any expenses
or liabilities they may have at the Site now or in the future.
In exchange for the United States' covenant not to sue and
contribution protection, you must pay your fair share of the past
and projected costs at the Site. Our records show this share to
be $ [amount]. [Attach any records.]
We also ask you to make a good faith effort to search your
records (and any other sources of information), or those of your
agents [in the case of a corporation, "including those in the
possession of your officers, directors, employees, attorneys or
contractors,"] which relate in any way to your ownership,
operation, generation, treatment, transportation or disposal of
hazardous substances at the site. We then ask that you use this
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cimimnui
information to answer the questions in the attached information
request. You must also certify the information is true and
accurate. If the information is not true or inaccurate the
Settlement Agreement is void and the United States can pursue you
for the full amount of the clean up costs at the site or order
you to clean up the site.
If you decide to accept the settlement, you MUST follow the
procedures set forth below:
1. Read carefully the enclosed Consent Order [if waste in
list or NBAR is enclosed insert, "and attached document
which sets forth how much waste EPA believes you sent
to the Site."].
2. Complete the information request by describing the
amount and type of waste you sent to the [insert
Superfund site name] site. You must also sign the
certification.
3. Sign the signature page attached to the Consent Order.
4. Provide a certified or cashier's check for the amount
contained in paragraph 2 of the Consent Order, payable
to "EPA-Hazardous Substance Superfund." The check
shall reference the name and address of the Respondent,,
the site name, and the EPA docket number for this
action.
5. Keep a copy of the Consent Order, information request
response, signature page and certified or cashier's
check for your files.
6. Send the Consent Order, signature page [insert where
appropriate, ", the waste-in list (or NBAR)"],
information request/certification and the certified or
cashier's check back to EPA.
7. Send the papers listed in paragraph 6 to:
[insert ORC attorney name and address]
8. The Consent Order, signature page [insert wl\ere
appropriate waste-in list (or NBAR)*1], information
request response/certification and certified or
cashier's check must be received by the undersigned no
LATER THAN 21 CALENDAR DAYS AFTER THE DATE YOP RECEIVE
THI8 LETTER. LATE RECEIPTS WILL NOT BE CON8IDERED TO BE
ACCEPTANCES OP THIS OFFER. NO EXTENSIONS WILL BE
GRANTED.
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This agreement is void if the information you provided in
the information request indicates you are not a de micromis party
or EPA later ledrns new information which indicates that you
contributed hazardous substances to the site in such greater
amount or toxicity that the fair share calculated in this
settlement agreement is significantly inaccurate. The terms in
this settlement offer are non-negotiable. Any handwritten
changes on the Consent Order will be treated as your non-
acceptance of the settlement offer.
This settlement is optional. If you do not believe that
this settlement is in your best interest, you do not need to
accept the settlement. If you believe that you are not liable
under CERCLA, you do not need to settle. We strongly encourage
you to consider our offer carefully and discuss the settlement
with your attorney or other advisors.
This settlement will not be offered to you again and, if
EPA is correct in identifying you as a liable person, you may be
required to pay a great deal more in the future if the
government, or other settling parties, sue you for the costs
incurred in connection with this cleanup or order you to perform
any work needed to cleanup the Site.
[NOTE: Add this language if the State has outstanding costs and
is not,a party to the settlement. "This settlement is with the
federal government only and not with the State [insert State
name].
The terms of the Consent Order will be subject to public
notice and comment in the Federal Register before EPA's final
approval. Final approval of the Consent Order is in the sole
discretion [of the Regional Administrator, Region , EPA, or
authorized delegate].
If you have any question about this settlement, your
liability at the Site or your options if you do not settle at
this time*, please call the undersigned at [insert phone number].
Sincerely,
[ORC attorney name]
[ORC attorney title]
Enclosure
cc: [Steering committee or other defendants]
[other defendants]
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APPENDIX B
DRAFT
cgifiHiiiii
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
MODEL DE MICROMIS SETTLEMENT AGREEMENT
IN THE MATTER OF:
[Insert Site Name]
[Insert Site Location]
U.S. EPA Docket No.
ADMINISTRATIVE ORDER
ON CONSENT
DE MICROMIS SETTLEMENT
This Administrative Order on Consent ("Consent Order") is
issued pursuant to the authority vested in the President of the
United States by the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended by the
Superfund Amendments and Reauthorization Act of 1986 ("CERCLA"),
to reach settlements in actions under Section 106 or 107(a) of
CERCLA, 42 U.S.C^ 9606 or 9607(a).
The purpose of this Consent Order is for EPA to reach a full
and final settlement with [insert name] ("Respondent") and
resolve the Respondent's liability in respect to the [insert site
name and location]. The Agency has determined this agreement is
practicable and in the public interest and consistent with the
National Contingency Plan in order to expedite effective remedial
actions and minimize litigation. The Agency has also determined
that the amount to be paid by Respondent hereunder riepresents a
fair share of the respondent's liability at the site.
Respondent agrees to undertake all actions required.by the
terms and conditions of this Consent Order. Respondent signing
below waives any objections to EPA's jurisdiction, implementation
or enforcement of the tenns of this Consent Order.
WHEREAS, EPA and the Respondent desire to settle certain
claims arising from the Respondent's alleged involvement with the
Site without litigation and without the admission or adjudication
of any issue of fact or law;
NOW, THEREFORE, EPA and the Respondent, in consideration of
the promises herein, and intending to be legally bound hereby,
agree as follows:
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DRAF""
cimiorinm
1. This Consent Order shall be binding upon EPA and shall
be binding upon the Respondent, and his/her [its] heirs,
successors and assigns. Any change in ownership or corporate
status of the Respondent including, but not limited to, any
transfer of assets or real or personal propoerty shall in no way
alter such Respondentfs responsibilities under this Consent
Order. Each signatory to this Consent Order represents that he
or she is fully authorized to enter into the terms and conditions
of this Consent Order and to bind legally the party represented
by him or her.
2. The Respondent attached a certified or cashier's check
to this Consent Order in the amount of [insert "$ ,"]
made payable to "EPA-Hazardous Substance Superfund." The check
shall reference the name and address of the Respondent, the site
name, and the EPA docket number for this action.
3. The Respondent certifies that he/she [it] has conducted
a good faith search for documents and to the best of his/her [it]
knowledge he/she [it] has fully and accurately disclosed to EPA
all information currently in his/her [its] possession and in the
possession of his/her [its] agents, [or in the possession of its
officers, directors/ employees/ contractor or agents] which
relates in any way to his/her [its] ownership, operation,
generation, treatment, transportation or disposal of hazardous
substances ait or in connection with the Site. This information
is contained in the attached Information Request/Certification to
this Consent order. If the information provided by the
Respondent pursuant to this paragraph 3 is not materially true
and complete, or if new information relating to the Respondent's
waste is discovered by EPA, the Covenant Not to Sue in paragraph
4 shall not be effective with respect to the Respondent, and EPA
reserves all rights it may have against the Respondent.
4. Payment of the amount specified in Paragraph 2
represents full satisfaction of the Respondent's liability under
CERCLA relating to the site. Subject to Paragraphs and 5 of
this Consent Order, upon payment of the amount specified in
Paragraph 2 of this Consent Order, the United States covenants
not to sue or to take any other administrative action against the
Respondent pursuant to section-106 and 107(a) of CERCLA relating
to the Site. These covenants not to sue extend only to the
Respondent and do not extend to any other person. /
5. In consideration of paragraph 4, the Respondent agrees
not to assert any claims or causes of action against the United
States or its contractors or its employees or the Hazardous
Substance Superfund.arising out of expenses incurred or payments
made pursuant to this Consent Order, or to seek any other costs,
damages, or attorney's fees from the United States or its
contractors or employees arising out of response activities at
the Site.
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DRAFT
HRflKNIUl
6. Nothing in this Consent Order is intended to be nor
shall it be construed as a release, covenant not to sue, or
compromise of any claim or cause of action, administrative or
judicial, civil or criminal, past or future, in law or in equity,
which EPA may have against the Respondent for: criminal
liability or damages for injury to or loss or destruction of
natural resources. [NOTE: This natural resource damage
reservation must be included unless the Federal natural resource
trustee has agreed to a covenant not to sue pursuant to Section
122 (j) (2) Of CERCLA.]
7. Nothing in this Consent Order is intended to be nor
shall it be construed as a release, covenant not to sue, or
compromise of any claim or cause of action, administrative or
judicial, civil or criminal, past or future, in law or in equity,
which EPA may have against any person, firm, corporation or other
entity not a signatory to this Consent Order.
8. Subject to the reservation of rights in paragraphs 3, 5,
6, and 7 of this Consent Order, EPA agrees that by entering into
and carrying out the terms of this Consent Order, the Respondent
will have resolved his/her [its] liability as set forth in the
covenant not to sue section in paragraph 4. With regard to
claims for contribution against the respondent for matters
addressed in the Consent Order, the parties here to agree that
the respondent is entitled, as of the effective date of this
Order on Consent, to such protection from contribution actions or
claims as is provided in CERCLA Section 113(f)(2), 42 U.S.C.
§9613(f)(2). [NOTE: If the United States has already settled
part of its claim with other PRPs at the site, the Region should
carefully consider the equities and effect of any contribution
protection provision on such prior settling parties.]
9. This Consent Order and any subsequent modification of
it, shall be published in the Federal Register and be subject to
a thirty-day public comment period. EPA.may modify or withdraw
its consent to this Consent Order if comments received disclose
facts or considerations which indicate that this Consent Order is
inappropriate, improper or inadequate.
10. The effective date of this Consent Order shall be the
date upon which EPA issues written notice to the Respondent that
the public comment period pursuant to Paragraph 9 of this Consent
Order has closed and that comments received, if any, do not
require modification of or EPA withdrawal from this Consent
Order.
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4
IT IS SO AGREED AND ORDERED:
[Respondent]
By:
[Name]
U.S. Environmental Protection Agency
By:
[Name]
draft
mhiiihiimi
[Date]
[Date]
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APPENDIX C
[Sample Questions and Certification]
tlMIIIIMl
1. Name and address of Respondent. [If corporation explain
relationship to corporation.]
2. Explain duties of employment.
3. Describe the amount, toxicity and type of hazardous
substances disposed at the ; Superfund Site.
4. Explain how this knowledge was obtained.
I certify under penalty of law that this document and all
attachments were prepared under my direction or supervision in
accordance with a system designed to assure that qualified
personnel properly gather and evaluate the information submitted.
I made a good:faith effort to search my records, or those of my
agents [in case of a corporation/ "including those in the
possession of my.officers; directors,employees or contractors,"]
to obtain information which relates in any way to my ownership,
operation, generation, treatment, transportation or disposal of
hazardous substances at the [site name]. Based on my inquiry of
the person or persons who manage the system, or those persons
directly responsible for gathering the information, the
information submitted is, to be the best knowledge and belief,
true, accurate, and complete. I am aware that there are
significant penalties for submitting false information, including
the possibility of fine and imprisonment for knowing violations.
[Signature]
[type name of person]
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o
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PROSPECTIVE PURCHASER
SETTLEMENT
-------
.ito**,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
34S COURTLANO STREET N.E
ATLANTA. GEORGIA 3Q36S
4RC
MEMORANDUM
DATE: December 16, 1991
SUBJECT: Prospective Purchaser Agreement with Spelman College?
Bumper's Diatribution Superfund Site
The purpose of the memorandum is to request approval of the
attached prospective purchaser agreement. The Region's
supporting memorandum also is attached. The Regional attorney
for this matter is Elizabeth Davis (FTS 257-2335, ext. 2134).
The Department of Justice attorney is Cheryl Smout (FTS 368-
5466). Please do hot hesitate to contact them if you have any
questions or comments.
Attachments
FROM: Greer C. Tidwell
Regional Administrator
TO:
Herbert H. Tate, Jr.
Assistant Administrator for Enforcement
4i
Allen
M. Normah
-fm
'k
\
J. Barker
Printed on Recycled Paper
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
345 COURTLANO STREET N E
ATLANTA. GEORGIA 30365
MEMORANDUM
DATE: December 16, 1991
SUBJECT: Prospective Purchaser Agreement with Spelman College:
Bumper's Distribution Superfund Site
I. Introduction
The purpose of this memorandum is to provide you with a
description of the significant provisions of the prospective
purchaser agreement which the U.S. Environmental Protection
Agency (EPA or Agency) proposes to enter into with Spelman
College (Spelman), a small, in-town college for African-American
women. The proposed Agreement and Covenant Not To Sue allows
Spelman to expand its campus and construct administrative,
classroom and/or housing facilities on the property known as the
Bumper's Distribution Site.
The settlement gives a covenant not to sue to Spelman,
enabling it to purchase the Bumper's Distribution Site property
for the campus expansion without acquiring liability as the owner
of contaminated property under Section 107(a) of the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, aa amended (CERCLA), 42 U.S.C. S 9607(a). Because
of restrictions placed on the use of some of the gift monies
Spelman will use to purchase the property, the college cannot
purchase property so long as the property carries potential
liability under CERCLA.
Aa consideration for the covenant, Spelman has agreed to
conduct a removal at the Site in accordance with a work plan to
be submitted to and approved by EPA. Spelman also has agreed to
reimburse EPA for any response costs the Agency incurs related to
the Agreement. Spelman will grant EPA irrevocable site access,
FROM: Elizabeth B. Davis
Assistant Regional Counsel
THROUGH: John Barker
Regional Counsel
TO: Greer C. Tidwell
Regional Administrator
Printed on Recycled Paper
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cooperate fully with all response activities and exercise due
care to protect the environment and public health.
The settlement provides a benefit to EPA which would not
otherwise be available. Based on investigations of the Site
conducted by Spelman and the Agency, contamination at the Site is
sufficiently insignificant that EPA would not initiate a removal
at the Site. The Agency was not even aware of the Site until
Spelman requested that EPA enter into the prospective purchaser
agreement so that Spelman could purchase the property.
Studies conducted by Spelman and EPA indicate surface and
groundwater contamination with petroleum hydrocarbons, chromium
and cadmium in excess of EPA drinking water standards as well as
acetone and methylene chloride.. Despite the contamination, a
Preliminary Assessment conducted by EPA contractors indicated
very few targets associated with each contaminant migration
pathway, in part because a large portion of the Site currently is
paved and fenced. The. Preliminary Assessment therefore
recommended that no Site Inspection be conducted and no further
remedial action be planned.
Based on the investigations and the unusual circumstances
involved, the Agency determined that a prospective purchaser
agreement was sufficiently in the public interest to warrant the
expenditure of Agency resources. Because the site is
contaminated but not substantially enough to merit further action
by the Agency, the prospective purchaser agreement provides for
remediation of a contaminated site which would not otherwise
occur. The Agreement also allows. EPA to extend a good will
gesture to the community by allowing Spelman to obtain expansion
property which the college so desperately needs.
The Prospective Purchaser Agreement is unique in that it
leaves open-ended a number of issues. Specifically, because
Spelman's contractor is still drafting a proposed work plan,
Spelman has not yet been able to provide EPA with a proposed work
plan for clean-up of the Site so that the parties cannot discuss
specific measures that will be necessary for the clean-up or the
response costs. However, the agreement as drafted works to EPA's
advantage. Because- Spelman must have an approved prospective
purchaser agreement by the end of December (the college is facing
an unextendable deadline on its option to purchase the property),
it agrees to perform any clean-up EPA requires and pay any
response costs EPA incurs. Therefore, although the Agreement
addresses a unique situation, it definitely protects EPA's
interests.
The Agreement was drafted in close consultation with the
Office of Enforcement and the Department of Justice. The
Agreement follows EPA guidance on innocent landowner settlements
and prospective purchaser agreements.
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II. Site Background
Spelman College proposes to purchase a parcel of property
located at 465 Peters Street, Atlanta, Georgia. The property is
located in southwest Atlanta, Georgia, in Fulton County,
approximately. 200 feet southeast of the campus of Spelman
College. Bumper Distribution occupied the one-acre property from
1975 to 1985 as an automobile bumper manufacturer £nd metal
plating company.
A portion of the Property was developed commercially in the
early 1900'a and was occupied by a lumber company until 1965.
Bumper Distribution of Atlanta operated a chrome plating facility
on the Property from 1975 to 1984. The current building on the
Property was constructed between 1970 and 1975 and has been
vacant since 1984.
EPA performed a Preliminary Assessment (PA) of the property,
completed on August 15, 1991, to investigate the release or
threatened release of hazardous substances, pollutants or
contaminants into the environment at the property. The PA
detected only barium in the surface waste samples. However, it
also detected petroleum hydrocarbons in other soil samples as
well as cadmium and chromium in. groundwater samples. The PA
recommendation is that no further remedial action be planned for
the property. The recommendation is based on the fact that there
are very few targets associated with each contaminant migration
pathway and little hazard of contact with contaminated soils or
inhalation of airborne contaminants.
The property is located in the Piedmont physiographic
province and hydrogeologic setting in Atlanta, Georgia., The
topography of the area consists of low, well-rounded hills and
long, rolling, horthieast-trending ridges. The facility property
slopes toward the south.; Run-off from the property tlows
overland to the stormwater drains in front of the facility.
Water from the storm drains flows into Proctor Creek 1.5 miles
west of the facility. Proctor Creek flows 8.5 miles northwest to
the Chattahoochee^ River. There are no surface water intakes
along the surface wa£er pathway.
There is no documentation of any spillB that occurred on the
property during the facility's operation. However, the presence
of cadmium and chromium in the soils creates the possibility of
wind-blown particulates which could migrate by air to become a
potential inhalation hazard to the community. The area
surrounding the property is densely populated. Currently, there
are over 19,000 people: living within a one-mile radius of the
facility and over 200,000 people living within a four-mile
radius. The nearest residences are approximately 200 feet east
of the facility.
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III. Spelman*a Planned Expansion
Spelman is a charitable organization, a nationally
prominent, historically Black women's college. Located in an
economically depressed urban area> Spelman is virtually
"landlocked" in terms of adjacent or nearby land available for
expansion purposes. Furthermore/ because of security concerns,
it is extremely important that Spelman's facilities be nearby to
the main campus. Spelman's plans for developing the property
include administration buildings, academic buildings and student
housing.
To pay for the acquisition of the Property, Spelman intends
to use reserves accumulated over time, including, but not limited
to, gifts and grants. Spelman received a substantial charitable
gift to be used toward purchasing land to expand, the campus. The
property that is the subject of the proposed prospective
purchaser agreement is most suitable for expansion because of its
proximity to the existing campus. However, the terms of the gift
contain a general prohibition against using the gift in a manner
which would endanger the capital, investment. Therefore, Spelman
cannot purchase the property so long as there is a possibility of
unknown and unlimited contingent liability.
Earlier this year, representatives of Spelman College and
the current property owner requested that EPA enter into a
prospective purchaser agreement with Spelman so that Spelman
could purchase the property but restrict its liability as owners.
EPA evaluated the request for a prospective purchaser agreement
and determined that such an agreement was sufficiently within the
public interest to merit expending EPA resources.
IV. Terms Of The Agreement
Under the proposed agreement, Spelman will conduct a removal
at the property it acquires for the expansion. In order to
minimize EPA'a expense relating to the agreement, Spelman agreed
to submit a proposed work plan for the removal prepared by a
contractor approved by EPA. Spelman chose Dames & Moore, a
contractor with which EPA is familiar and which has a good
reputation. All of the removal activities will be financed by
Spelman and performed by Spelman's contractors.
The exact extent of the removal activities to be conducted
at the Site is not yet determined. Dames & Moore did not prepare
a proposed work plan for the property in time for EPA to review
the plan. At Spelman's request and in an effort to allow Spelman
to go forward with the purchase of the property, Region 17 has
drafted, in close consultation with the Office of Enforcement and
the Department of Justice, a proposed agreement which allows
4
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Spelman to submit and EPA to approve the work plan after the
agreement is executed. Therefore, the agreement specifies only
that Spelman will aubmit a proposed work plan by a specific date
and that Spelman will conduct a removal in accordance with
whatever work plan EPA approves. Representatives of the Region
have discussed with Spelman's attorneys some anticipated removal
activities, including removing the structures currently standing
on the property and excavating contaminated soils'.
As further consideration for the agreement, Spelman agrees
to reimburse EPA for any response costs the Agency incurs
throughout the project, including evaluating the property,
negotiating the agreement> reviewing and approving the proposed
work plan and any oversight costs. Although the full amount of
those costs is uncertain, they are projected to be less than
$15,000.
In addition, Spelman irrevocably agrees to provide access to
the property* The proposed agreement requires Spelman to
cooperate with any,,response activities on the property, even if
those activities may interfere with the use of its property.
Spelman certifies that, to the best of its knowledge, it is
not liable for any release of hazardous substances at the
property. Spelman also certifies that its intended use of the
property is to construct campus facilities, including
administrative, academic and student housing facilities. There
is a "reopener" of liability if conflicting information surfaces
indicating Spelman's liability. Spelman agrees to exercise due
care with respect to the hazardous substances at the property,
and it will file in the local land records an appropriate
disclosure notice to any subsequent purchasers of the property.
In exchange for these commitments from Spelman, EPA agrees
to provide a limited covenant not to sue for presently existing
contamination not caused by Spelman. The covenant does not
provide a release from liability for the current owner or KLS,
the company which currently has an option to buy the property and
has agreed to purchase the. property and transfer it to Spelman in
a simultaneous transaction. The covenant specifically excludes
any liability for future releases which Spelman causes or
exacerbates. The proposed agreement includes; the reservations of
rights and disclaimers set out in the Prospective Purchaser
Guidance.
The agreement is memorialized in an "Agreement And Covenant
Not To Sue" to be executed by representatives of EPA and Spelman*
Technically, the United States is not "settling? with Spelman
since Spelman is not a PRP at afSuperfund site. Therefore> the
agreement does not fall within the definition/of a deT minimi a
settlement under Section 122(g)(l)(B)4of CERCLA, 42 U.S.C. S
9622(g)(1)(B). The agreement cites CERCLA as its general
5
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authority on the theory that the agreement is based on EPA'a
inherent authority to enter into a contract. The agreement does
not require a public comment period before it becomes effective
because the agreement is not a settlement with the United States.
Prospective Purchaser Agreements which EPA previously entered
into did not require public notice.
V. "Settlement" Criteria
The decision to enter into a prospective purchaser agreement
should be based on an evaluation of the criteria contained in the
Prospective Purchaser Guidance. Five essential criteria are set
forth to guide EPA's determination of whether a covenant not to
sue a prospective purchaser of contaminated property is
appropriate. As set out in the attached Briefing Paper prepared
by former Assistant Regional Counsel Marcia Owens, the proposed
prospective purchaser agreement satisfies the essential criteria
for such agreements in support-of the Region's previous decision
to enter into a prospective purchaser agreement with Spelman.
VI. Recommendation
Based on the reasons set forth above and an evaluation of
the terms of the proposed agreement, it is our recommendation
that EPA enter into the proposed agreement. The Region is
interested in having the agreement take effect as soon as
. possible. Spelman cannot purchase the property without the
agreement, and Spelman is about to lose an opportunity to
purchase the property at all. Other prospective purchasers are
pressing the current owner to sell the property, and, because
contamination at the property is relatively insignificant, no
other prospective purchaser is interested in such an agreement.
Spelman has been told that it must purchase the property by the
end of December or the property will be sold to another buyer.
Pursuant to the Prospective Purchaser Guidance, the
Assistant Administrator for Enforcement and the Assistant
Administrator for Solid Waste and Emergency Response must concur
in approving the agreement, and so must the Attorney General.
6
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&t)
3 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
343 COURTLANO STREET. N.E.
ATLANTA. GEORGIA 3036S
MEMORANDUM
PATE: ^ ^ ^
SUBJECT,: Spelman College Prospective Purchaser Agreement
FROM* Marcia Allen Ovens •JlM
Assistant Regional Cot
TOt
THRU
Donald J. Guinyard, Acting Director
Waste Management Division
: n R. Barke^
u Regional Counsel
The purpose of this memorandum is to transmit an issue paper on
a possible purchaser agreement with Spelman College. The paper
outlines considerations that need to be taken into account so
that the Region may respond to Spelman's request for an
agreement and covenant not to sue. I will be glad to arrange an
oral briefingat your convenience to answer any questions that
you may have.
Printed on Recycled Paper
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BRIEFING PAPBfl
SPELMAN COLLECT
I. ISSUE
Whether, under the unique circumstances involved, entering into
a prospective purchaser agreement is sufficiently in the public
interest to warrant the expenditure of Agency resources.
II. BACKGROUND
Spelman College proposes to purchase a parcel of property
located at 465 Peters Street, Atlanta, GA, from Bumper
Distributors of Atlanta, Inc. In March, 1991, Spelman College
and the oWner of the former Bumper Distributors requested that
the Agency negotiate a prospective purchaser agreement to
facilitate Spelman's purchase of that property.
In March, 1991, legal representatives of Spelman and Bumper
Distributors presented two environmental studies conducted on
the property, which disclosed surface and groundwater
contamination with heavy metals, particularly chromium. The
studies were reviewed by the Emergency Response Branch and are
currently in the possession of the Site Assessment Branch, which
is entering the site into CERCLIS as a "site discovery" and
preparing to conduct a Preliminary Assessment (PA).
As consideration for the prospective purchaser agreement, the
current owner will perform substantial remediation of the site.
This remediation will include soil remediation and groundwater
monitoring. Also, an additional cash payment to the Agency may
be negotiated.
Spelman College, a charitable organization, is a historically
Black institution of higher education of local and national
prominence. Located in an economically depressed area, Spelman
is virtually "landlocked" in terms of availability of adjacent
or even nearby, land for expansion.
Spelman was the recipient of a substantial charitable gift for
the purchase of land for the expansion of its campus. The
Peters Street property would be suitable for those purposes
because of its proximity to the campus. However, because of a
general prohibition of the use of the gift in a fashion which
would endanger the capital investment, Spelman cannot purchase
the property with the possibility of unknown and unlimited
contingent environmental liability.
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nr. Discussion
Of major legal consequence is the £act that this situation does
not squarely fit within the criteria of the "Guidance on
Landowner Liability..., and Settlements with Prospective
Purchasers of Contaminated Property." The criteria aret
(a) Enforcement action is anticipated by the Agency at the
facility; (b) A substantial benefit, not otherwise available,
will be received by the Agency for cleanup; (c) • The continued
operation of the facility or new site development, with the
exercise of due care, will not aggravate or contribute to the
existing contamination or interfere with the remedy; (d) Due
consideration has been given to the effect of continued
operations or new development on health risks to those persons
likely to be present at the site; and (e) The prospective
purchaser is financially viable.
The guidance states that the Agency should normally avoid
involvement in ordinary real estate transactions. However, the
guidance states that its listed criteria are minimal standards,
and that any offer or request for a prospective purchaser
agreement will be rejected unless the Agency determines that
"entering into a covenant with a prospective purchaser is
sufficiently in the public interest to warrant expending the
resources necessai^ to reach such an agreement in light' of
competing priorities for the use of limited Agency resources
(emphasis added)."
With respect to the guidance criteria in the case of Spelman,
the issue of an Agency enforcement action is not entirely
clear. Thei site is neither listed nor proposed for the NPL. In
fact, its existence was brought to the attention of the Agency
by the concern of Spelman. The site has been placed on CERCLIS
and is in line for a PA. The site assessment process creates
the potential for an enforcement action, and until that process
is complete, an enforcement action is being contemplated by the
Agency. Although there is a low priority for possible further
action at the site, the guidance criterion is arguably met.
Conversely, if the site assessment process, is not considered to
constitute:an enforcement action, legal authority for further
enforcement at the. site may be limited because of the probable
lack of an "imminent and substantial endangerment to the public
health or welfare or the environment," as required by CERCLA §S
104 and 106.
However, other guidance criteria are met in this case. A
"substantial benefit not otherwise available," will be received
by the Agency. A prospective purchaser agreement in this case,
would result in immediate remediation of the site, and perhaps
may present the only prospect of remediation of the site. Such
an agreement would: alleviate the need for the site to continue
in the CEBCLA process, thus preserving Agency resources.
Further, it is unlikely that the proposed new site development r
will aggravate existing* contamination, and there should
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no negative health effects posed by the development.
Also, receipt of a cash payment to the Agency for future
remediation, as required by the guidance as consideration for
the covenant not to sue, ia negotiable due to the financial
viability of the purchaser.
In sum, the benefits to the Agency include, immediate
remediation at a site where likelihood of future harm is not
great (based on current information), a cash payment to the
Agency £or future remediation, and a possible set* aside for
future groundwater remediation. In addition to these benefits,
it must be stressed that the agreement would limit Spelman's
liability only, and the liability of the current owner will not
be diminished in any way.
Precedent has been set in Region IV with the the Tennessee
Chemical/Boliden prospective purchaser agreement, where there
were significant public interest considerations and where the
Agency obtained a substantial benefit. Further, in other
prospective purchaser agreements across the country, the Agency
has done a case by case evaluation; resulting in the granting of
agreements under circumstances hot specifically contemplated by
the guidance.
IV. PRELIMINARY OPTIONS
1. Take next steps to proceed with negotiations for a
prospective purchaser agreement with Spelman College.
2. Notify Spelman College that a prospective purchaser
agreement is not feasible.
Prepared by: Marcia Allen Owens, Assistant Regional Counsel
Multi-Media Pilot Project Branch
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AGREEMENT AND COVENANT NOT TO SUE
I. INTRODUCTION
This Agreement and Covenant Not to Sue ("the Agreement") is made
and entered into by and between the United States Environmental
Protection Agency and Speiman College (collectively referred to
as "the Parties").
The United States Environmental Protection Agency ("U.S. EPA")
enters into the Agrieement pursuant to the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980,
as amended ("CERCLA"), 42 U.S.C. S 9601 et seq. The Agreement is
consistent with current U.S. EPA guidance.
Speiman College ("Speiman"), a charitable organization, is a
nationally prominent, historically Aftican-Americari institution
of higher education haying its principal place of business at 350
Speiman Lane, S.W., Atlanta, Georgia 30314. Speiman is a
"person" as defined by CERCLA §§ 101(21), 42 U.S.C. § 9601(21).
The parties agree to undertake all actions required by the terms
^nd conditions, of the Agreement. The primary purpose of the
Agreement is to settle and resolve any potential future liability
of Speiman for contamination at the Property existing at the time
the parties enter into the Agreement and.arising from Speiman's
purchase of the Property. Purchase of the Property without the
Agreement would subject Speiman .to potential liability for past
and future response costs as an owner of the Property under
CERCLA § 107(a), 42 U.S.C. S 9607(a). Resolving Spelman's
potential liability through the terms of the Agreement is in the
public interest and bestows upon U.S. EPA a substantial benefit
not otherwise availablei to those: agencies.
II. DEFINITIONS
(A) "The Property" shall mean that tract described in cietail in
Attachment A to the Agreement. The Property is owned by
Rabar, Inc., a;corporation organized under the laws of
Alabama and with a Georgia office located at 4215 Wendell
Court, S.W., Atlanta, Georgia 30336.
(B) "Hazardous Substances" shall mean the same as defined in
CERCLA s 101(14), 42 U.S.C. § 9601(14).
(C) "Pollutant or Contaminant" shall mean the same as defined in
CERCLA s 101(33), 42 U.S.C. S 9601(33).
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III. STATEMENT OF FACTS
(A) A portion of the Property was developed commercially in the
early 1900's and was occupied by a lumber company until
1965. Bumper Distribution of Atlanta operated a chrome
plating facility on the Property from 1975 to 1984. The
current building on parcel four of the Property was
constructed between 1970 and 1975 and has been vacant since
1984.
(B) Rabar, Inc., located at 4215 Wendell Court S.W., Atlanta,
Georgia 30336, has held title to the Property since 1971.
Spelman has offered to, and the parties anticipate that
Spelman will, purchase the Property contingent upon
completion of the Agreement. KLS Associates, Inc. ("KLS"),
a Georgia corporation, has the right to purchase the
Property
(C) Because of security concerns, it is extremely important that
Spelman's facilities be nearby to the main campus.
(D) To pay for the acquisition of the Property, Spelman intends
>.to use reserves accumulated over time, including, but not
limited to, gifts and grants. The terms of at least some of
the gifts include general restrictions which prohibit their
use in a fashion which would endanger the capital
investment. Because of the restriction, Spelman cannot
purchase the Property so long as there is a possibility of
unknown and unlimited contingent liability.
(E) Spelman retained Law Engineering to perform a Limited Site
Contamination Assessment of the Property ("Law Report").
The Law Report, completed on or about March 22, 1990, does
not constitute, and is not intended as, a Remedial
Investigation and Feasibility Study for the Property. As
requested by U.S. EPA, Spelman also provided supplemental
information to U.S. EPA, which includes reports prepared by
Dames & Moore, describing the condition of the Property.
U.S. EPA reviewed and relied upon the submitted information
in consenting to enter into the Agreement.
(F) The Law Report detected in the soil and water on the
Property levels of hazardous substances including petroleum
hydrocarbons, chromium and cadmium in excess of U.S. EPA
drinking water standards as well as acetone and methylene
chloride.
(G) U.S. EPA performed a Preliminary Assessment (PA) of the
Property, completed on August 15, 1991, to investigate the
release or threatened release of hazardous substances,
pollutants or contaminants into the environment at the
Property. The PA detected only barium in the surface waste
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samples. However, it also detected petroleum hydrocarbons
in other soil samples as well as cadmium and chromium in
groundwater samples. The recommendation of the PA is that
no further remedial action be planned for the Property. The
recommendation is based on the fact that there;are very few
targets associated with each contaminant migration pathway
and little hazard of contact with contaminated soils or
inhalation of airborne contaminants.
(B) In investigating the release or threatened or potential
release of hazardous substances, pollutants or contaminants
into the environment and performing a PA of the Property,
U.S. EPA incurred response costs which U.S. EPA is entitled
to recover under CERCXA, 42 U.S.C. S9601et sea.
(I) Spelman submitted information to U.S. EPA^ regarding
Spelman's uses of the property. That information indicates
that Spelman has not previously owned, leased or . otherwise
used the property and, therefore, Spelman has not
contributed to or exacerbated any soil or groundwater
contamination that presently exists at the property. That
information also indicates that Spelman's intended uses of
the property will not aggravate or contribute to existing
contamination at the property. U.S. EPA relied upon the
information submitted by Spelman in preparing a Preliminary
Assessment (PA). In addition, Spelman submitted information
to U.S. EPA upon which U.S. EPA based its determination that
due consideration has been given to the effect,of Spelman's
intended use of the Property on health risks to those
persons likely to be present at the Property. The Agencies
reviewed the submissions and relied upon them in consenting
to,enter into the Agreement.
(J) Spelman agrees to perform a removal at the Property in
accordance with a work plan to be submitted to and approved
by U.S. EPA. Spelman will submit a proposed work plan to
U.S. EPA on or before January 31, 1992. The work plan will
be deemed incorporated into this Agreement as of the date of
its approval by U.S. EPA. Spelman further agrees to
reimburse U.S. EPA for any and all response costs incurred
by U.S. EPA in relation to the Agreement, including but not
limited to investigating any release or threatened or
potential release of hazardous substances, pollutants or
contaminants into the environment at the Property,
performing' a PA of the Property, evaluating the proposed
work plan(s),. and certifying or otherwise supervising the
removal at the Property.
(K) Consideration received from Spelman, in the form of the
promises, agreements and mutual understandings contained in
the Agreement,- bestows upon U.S. EPA a substantial benefit
which would not otherwise be available.
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(L) Baaed on the facts and conditions described herein, U.S. EPA
has determined that entering into the Agreement is
practicable and in the public interest.
IV. PAYMENT OP COSTS
(A) Within 10 days after the effective date of this Agreement,
Spelman shall pay to U.S. EPA the total response costs
incurred by U.S. EPA as of the effective date of the
Agreement. As of [insert date], U.S. EPA had incurred
approximately [insert dollar amount] in response costs.
Every ninety (90) days after the effective date of the
Agreement, Spelman shall reimburse U.S. EPA for any response
costs incurred by U.S. EPA subsequent to the effective date
of the Agreement. The sums shall be remitted by cashier's
or certified check made payable to "EPA Hazardous Substance
Superfund,M referencing EPA ID No: GAD981247380. This
payment shall be mailed to:
U.S. Environmental Protection Agency
Region IV
Superfund Accounting
P. 0. Box 100342
Atlanta, GA 30365
(B) Copies of the checks required by paragraph IV(A) of the
Agreement shall also be mailed simultaneously to:
Cost Recovery Section
Waste Management Division
United States Environmental Protection Agency
Region IV
345 Courtland Street, N.E.
Atlanta, Georgia 30365
(C) If Spelman fails to comply with the terms of the Agreement,
including, but not limited to, the provisions of paragraphs
IV(A) and V of this Agreement, it shall be liable for all
costs incurred by the, United States to enforce this
Agreement or otherwise obtain compliance.
V. ACCESS AND NOTICE
(A) Spelman hereby grants to U.S. EPA, its representatives,
contractors, agents, and all other persons performing
response actions or oversight, an irrevocable immediate
right of access to the Property for the purpose of
performing response actions on or about the Property under
state and federal law* U.S. EPA agrees to provide Spelman
with reasonable advance notice of the performance of
response actions at the Property to the extent such advance
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notice is feasible. Nothing herein shall limit the right of
U.S. EPA to access under applicable law.
(B) Spelman shall file in the land records of Fulton County,
Georgia a notice, approved in advance by U.S. EPA, to
subsequent purchasers of the Property, that hazardous
substances may be present at the Property and that U.S. EPA
makes no representations as to the appropriate use of the
property. Spelman shall provide a proposed notice to U.S.
EPA within 15 days after the effective date of the Agreement
and shall file the notice within 30 days after the notice is
approved by U.S. EPA.
(C) Spelman agrees that it shall not initiate activities on or
changes to the Property which may in any way aggravate or
contribute to existing contamination at the Property
including, but not limited to, initiating construction
activity, without prior written consent from U.S. EPA. Such
consent will not be unreasonably withheld, but may be
conditioned on implementation of reasonable measures to
minimize or eliminate the environmental impact of such
expansion.
(D) Nothing in the Agreement shall in any manner restrict or
limit the nature or scope of actions which U.S. EPA may take
in fulfilling its responsibilities under federal and state
law.
VI. DUE CARE
Nothing in the Agreement shall be construed to relieve Spelman of
its duty to exercise due care with respect to the hazardous
substances; pollutants or contaminants at the Property or its
duty to comply with all applicable state and federal laws and
regulations. This duty includes, but is not be limited to, all
obligations under the Occupational Safety and Health Act and
implementing regulations.
VII. WORK TO BE PERFORMED
Spelman agrees to perform work on the Property, including but not
limited to the following:
(A) Removal of the structures existing on the property at the
time Spelman acquires the Property;
(B) Removal and proper disposal of any contaminated soils at the
Property; and
(C) Installation of groundwater monitoring wells.
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VIII. CERTIFICATION
Spelman certifies that to the beat of its knowledge and belief it
has fully and accurately disclosed to U.S. EPA all information
currently in its possession or control and in the possession or
control of its officers, directors, employees, contractors and
agents which relates in any way to Spelman's status as-a non-
liable party and to any contamination or potential contamination
at the Property. Spelman also certifies that its plans for
future development of the Property include one or more of the
following uses: (i) administration buildings, (ii) academic
buildings, and (iii) student housing. Spelman also certifies
that to the best of its knowledge and belief it has not caused or
contributed to a release of hazardous substances at the Property.
If the information provided by Spelman is not pursuant to this
Paragraph is not materially true and complete, the covenant not
to sue in this Agreement shall hot be effective.
IX. COVENANT NOT TO SUB
(A) In consideration fpr the promises, payments and work to be
performed by Spelman, and subject to the reservation of
rights in Paragraph X of the Agreement, the United States
covenants not to sue or take any other civil or
administrative action against Spelman, its officers,
directors; shareholders, employees or agents for any and all
civil liability for injunctive relief or reimbursement of
response costs pursuant to sections 106 or 107(a) of CERCLA,
42 U.S.C. §§9606 or 9607(a), or Section 7003 of the
Resource Conservation and Recovery Act, as amended, 42
U.S.C. § 6973, regarding releases of hazardous substances or
contaminants at the Property prior to the time Spelman
purchased the Property. The covenants not to sue under this
Paragraph (A) shall take effect upon payment by Spelman of
the amounts specified in Paragraph IV of this Agreement.
(B) In consideration of the covenants not to sue in paragraph
IX(A) of the Agreement, Spelman agrees not to assert any
claims or causes of action against the United States or the
Hazardous Substance Superfund, their subdivisions, agencies,
contractors, agents or employees arising out of
contamination of the Property existing at the time Spelman
acquires the Property or expenses incurred, payments made,
or work' performed relating to the Property. Spelman further
agreeis not to seek any other costs, damages, or attorney's
fees from the United States, its Subdivisions, agencies,
contractors, agents or employees-, arising out of response
activities at the Property. This covenant not .to sue shall
include all claims 6r causes of action for interference with
contracts, business relations and economic advantage.
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(C) The covenants not to sue set forth under Paragraphs (A) and
(B) above are not general releases under Georgia law or the
law o£ any other state or jurisdiction.
X. RESERVATION OF RIGHTS
(A) Notwithstanding the Covenant Not to Sue described in
Paragraph IX above, nothing in this Agreement is intended to
be or shall be construed as a release, or covenant-not to sue
for any claim or cause of action, administrative or
judicial, at law or in equity, which the United States or
the State of Georgia may have, presently or in the future,
against Spelman for:.
i
(1) Any liability as a result of failure to provide access,
notice or cooperation to U.S. EPA, or failure to
otherwise comply with Paragraph V of this Agreement;
(2) Any liability as a result of failure.to exercise due
care with respect to any hazardous substances at the
Property;
(3) Any liability as a result of failure to make the
payments required by Paragraph IV of this Agreement;
(4) Any liability resulting from future exacerbation by
Spelman of the release.or threat of release of
hazardous substances from the Property;
(5) Any liability resulting, from the creation of new
releases or threats of release of hazardous substances
at the Property after the date of Spelman's acquisition
of the Property;
(6) Any and all criminal liability; or
(7) Any matters not expressly included in the Covenant Not
to Sue set forth in Paragraph IX of the Agreement
including, without limitation, any liability to the
United States or the State of Georgia for damages to
natural resources and any liability to the United
States or the State of Georgia for failure to comply
with the terms of the Agreement.
(B) Nothing in this Agreement constitutes a covenant not to sue
or take action or otherwise limits the ability of the United
States, including U.S. EPA, to seek or obtain further relief
from Spelman, and the covenant not to sue in Paragraph IX of
this Agreement is null and void, if new information or
information different from that specified in Paragraph VIII
is discoverediwhich indicates that Spelman, prior to
acquiring the Property, is liable under Section' 107 of
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CERCLA, 42 U.S.C. S 9607(a) for the present site
contamination.
(C) Notwithstanding any other provisions of this Agreement, U.S.
EPA.reserves the rights to seek modification of this
Agreement or institute an action to compel Spelman to
reimburse the United States for response costs if previously
unknown conditions are discovered or information is received
after the effective date of this'Agreement, ^nd these
previously unknown conditions or this information indicates
that Spelman is liable for the present contamination at the
Property.
(D| Nothing in the Agreement is intended as a release or
covenant not to sue for any claim or cause of action,
administrative or judicial, civil or criminal, past or
future, in law or in equity, which the United States or the
State of Georgia may have against any person, firm,
corporation or other entity not identified in Paragraph
IX(A) of the Agreement.
(E) Nothing in the Agreement is intended to limit the right of
U.S. EPA to undertake future response actions at the
Property or to seek to compel parties other than Spelman to
perform or pay for response actions at the Property.
Nothing in the Agreement shall in any way restrict or limit
the nature or scope of response actions which U.S. EPA may
take or require in exercising their authority under federal
law.
(F) The Parties agree that Spelman's entry into this Agreement,
and the actions undertaken by Spelman in accordance with
this Agreement, do not constitute an admission of any
liability by Spelman.
XI. PARTIES BOUND
This Agreement shall apply to and be binding upon the United
States, Spelman, its officers, directors, partners, employees and
agents. Each signatory of a Party to the Agreement represents
that he or she is fully authorized to; enter into the terms and
conditions of the Agreement and to legally bind such Party. In
the event that Spelman transfers title or possession of the
Property, Spelman shall notify U.S. EPA prior to any such
transfer and shall continue to be bound by all terms and
conditions of this Agreement unless the United States agrees
otherwise and modifies this Agreement accordingly.
The United States Office of Solid Waste and Emergency Response,
Office of Enforcement and the Attorney General have separately
concurred with and Approved the Agreement and agree to be bound
by its terms.
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XII. DISCLAIMER
The Agreement in no way constitutes a finding by U.S. EPA' as to
the risks to human health and the environment which may be posed
by contamination at the Property. The. Agreement does not
constitute a representation by U.S. EPA that the Property is £it
for any particular purpose.
XIII. DOCUMENT RETENTION
Spelman agrees to retain and make available all business and
operating records, contracts, site studies and investigations,
and documents relating to any and all hazardous substance
releases and operations at the Property for at least ten years
following the effective date of the Agreement unless otherwise
agreed to in writing by the Parties. At the. end of ten years,
Spelman shall notify U.S. EPA of the location of such documents
and shall provide U.S. EPA with an opportunity to copy any and
all such documents at the expense of the United Staties.
XIV. NOTICES
All notices, demands or other communications required to be
given or made by any party to any other party in connection with
this Agreement shall be given in writing and shall be deemed to
have been given when posted by certified or registered mail,
return receipt requested or when sent by a recognized overnight
courier service for next day delivery, to the following
addressees:
(i) if to Spelman, to Oliver Lee, Esquire
Troutman, Sanders, Lockerman
& Ashmore
1400 Candler Building
Atlanta, Georgia 30303-1810
(ii):if to the
United States« to De'Lyntoneua Moore
U.S. Environmental Protection
Agency
Region IV
345 Courtland Street, N.E.
Atlanta, Georgia 30365
Elizabeth B. Davis, Esquire
Assistant Regional Counsel
U.S. Environmental Protection
Agency
Region IV
345 Courtland Street, N.E.
Atlanta, Georgia 30365
with required
copies to
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and
Cheryl Smout, Esquire
U.S. Department of Justice
ENRD
Environmental Enforcement
Section
Ben Franklin Station
P.O. Box 7611
Washington, D.C. 20044
All notices shall be deemed received on the date delivered by
hand or by confirmed telefax, on the day after sent by recognized
overnight courier service for next day delivery, and on the third
day after sent by registered or certified mail.
XV. TERMINATION
If any of the Parties determines that any or all of the
obligations under Paragraphs V(A) or XII are no longer necessary
to ensure compliance with the requirements of the Agreement, that
Party may request in writing that the other Parties agree to
tenoinate the provision(s) establishing such obligations.
XVI. EFFECTIVE DATE
The effective date of the Agreement shall be the date upon which
U.S. EPA issues written notice to Spelman that the United States
has fully executed the Agreement.
XVII. AMENDMENT
This Agreement, or any part thereof, may be amended by mutual
written agreement between the parties.
IT IS SO AGREED BY
SPELMAN COLLEGE-
By:
Date:
(Signatures continued on next page)
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IT IS SO AGHEBD BY
THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
By: . .
Greer C. Tidwell
Regional Administrator
Date:
IT IS SO AGREED BY
OFFICE OF ENFORCEMENT
Bys
Herbert H, Tate, Jr.
Assistant Administrator
Date: '
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RXWPXT "A"
"THE PROPERTY" consists of all that tract or parcel 'of land
lying and being in Land Lot 108 of the 14th District of Fulton
County/ Georgia and being more particularly described as follows:
TRACT 1
BEGINNING at a point on the northwesterly ri^ht-of-way of
Peters Street a distance of 534.72 feet southwesterly from the
intersection of the northwesterly right-of-way of Peters Street
with the southwesterly right-of-way of Leonard Street, to an iron
pin found, said point being at the southwesterly corner fronting
on Peters Street of the property now or formerly owned by William
J. Murphy. Running thence
(L) North 3d degrees, 37 minutes, 5 seconds West, a
distance of 174.80 feet to an iron pin found, said iron
pin being on the southeasterly right-of-way of Chapel
Street; thence
(2) South 9 degrees, 52 minutes, 6 seconds West, along
chord formed by the southeasterly right-of-way of
Chapel Street having an arc of 249.81 feet and a radius
of 161.1 feet, a distance of 225.52 feet to an iron pin
found, said iron pin being at the intersection of the
southeasterly right-of-way of Peters Street; thence
(3) North 59 degrees, 54 minutes, 44 seconds east along the
northeasterly right-of-way of Peters Street along a ...
chord having the radius of 2601.2 feet and an arc of
170;.79 feet, a distance of 170.76 feet to an iron pin
found, said iron pin being the point of BEGINNING.
Being a portion of the same property conveyed under and by
virtue of certain Trust Indentures dated April 17, 1944, executed
by Joseph Renzler as donor, and under and by virtue of certain
Trust Indentures dated April 17, 1944, executed by Charles
Renzler as donor. Said Indentures.being found in Deed Book 2591
at Pages 321 through 370, Fulton County Records, Georgia.
Being a portion of the same property conveyed to the
Grantors under Indenture dated August 31, 1953 between I. T.
Cohen, Alfred E. Garber and James N. Roberts, as Trustees for
Doris Renzler Cann, Leonard Renzler and Carol Ann Renzler, under
and by virtue of a certain Trust Indenture dated April 17, 1944,
executed by Joseph Renzler as donor, of the County of Pulton and
State of Georgia, parties of the first part, and Sol Golden,
Alfred B. Garber and Joseph F* Haas, as Trustees for Robert Lewis
Renzler and Stanley Renzler, under and by virtue of certain
Trustee Indentures-dated April 17, 1944, executed by Charles
Renzler as donor, of the County of Fulton and State of Georgia,
parties of the second part, and recorded in Deed Book 2875, Page
467, Fulton County Records, Georgia.
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Said tract containing 21,747 square feet of 0.499 acres.
Said description being drawn in accordance with a plat prepared
by A. S. Giometti & Associates', Inc., Registered Land Surveyor
No. 1125/ dated February 14, 1990.
Said property having a common street address of 481 Peters
Street, Atlanta, Georgia.
TRACT 3
BEGINNING at a point on the northwesterly right-of-way of
Peters Street a distance of 467.69 feet southwesterly from the
intersection of the northwesterly right-of-way of Peters Street
with.the southwesterly right-of-way of Leonard Street, said point
of beginning being at the southwesterly corner fronting on Peters
Street of the property now or formerly owned by Flora W. Flynn,
James A* Turner and Jack P. Turner. Running thence
(1) North 38 degrees, 40 minutes, 18 seconds west along the
line of said Flora W. Flynn, James A. Turner and Jack
P. Turner property a distance of 74.70 feet to a point;
(2) Running thence south 62 degrees, 42 minutes, 39 seconds
west a distance of 67.00 feet to a point;
(3) Thence north 38 degrees, 37 minutes, 5 seconds west a
distance of 74.90 feet to an iron pin found; said iron
pin being at a point on the northwesterly right-of-way
of Peters Street;
(4) Running thence north 62 degrees, 31 minutes, 52 seconds
east along a chord having an arc of 67.03 feet and a
radius of 2601.2 feet, a distance of 67.03 feet to the
point of BEGINNING.'
Said property containing 4,906 square feet of 0.113 acres as
shown on a plat prepared by A.S. Giometti & Associates, Inc.,
Registered Land Surveyor 1125, dated February 14, 1990.
Said property being improved property known as 477 Peters
Street.
TRACT 3
BEGINNING at a point on the northwesterly right-of-way of
Peters Street a distance of 349.50 feet southwesterly from the
intersection of the northwesterly right-of-way of Peters Street
with the southwesterly right-of-way of Leonard Street. Said
point being the mid-point of a 14 foot alley on the northwesterly
right-of-way of-Peters Street. Running thence
(1) South 41, degrees, 46 minutes, 53 seconds east a
distance of 217.03 feet to a point on the southeasterly
right-of-way line of Chapel Street;
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(2) Thence running along,said southeasterly right-of-way
'line of Chapel Street south SO degrees/ 44 minutes, 12
seconds west a distance of 169.12 feet to an iron pin
found;
(3) Thence north 38 degrees, 37 minutes, 5 seconds, west a
distance of 99.90 feet to a point;
(4) Thence south 62 degrees, 42 minutes, 39 .seconds west a
distance of 67 feet to a point;
(5) Thence north 38 degrees 40 minutes, 18 seconds west a
distance of 74.74 feet to a point on the northeasterly
right-of-way of Peters Street;
(6) Thence along said northeasterly right-of-way of Peters
Street, north 64 degrees, 29 minutes, 40 seconds east
along a chord having an arc of 111.2 feet and a radius
of 2601.2 feet, 111.19 feet to an iron pin found. Said
iron pin being the point of and place of BEGINNING.
Said tract containing 29,050 square feet or 0.667 acreB.
Said description being drawn in accordance with the plat prepared
by A.S. Giometti & Associates, Registered Land Surveyor No. 1125
dated February 14, 1990.
Said property being improved property and having a common
street address of 471 Peters Street, Atlanta, Georgia.
TRACT 4
BEGINNING at a point on the northwesterly right-of-way of
Northside Drive as it intersects with the northeasterly right-of-
way of Peters street. Running thence
(1) Along the northeasterly right-of-way of Northside
Drive, north 7 degrees, 30 minutes, 32 seconds west a
distance of 283.74 feet to a point;
Thence north 69 degrees, 55 minutes, 06 seconds west a
distance of 6.21 feet to a point on the southeasterly
right-of-way of Chapel Street;
Thence south 50 degrees, 44 minutes, 12 seconds west
along the southeasterly right-of-way of Chapel Street a
distance of 257.00 feet to a point;
Thence along the northeasterly property line of
property now or formerly owned by Flora W. Flynn, James
V. Turner, Jack P. Turner, south 41 degrees, 46
minutes, 153 seconds east a distance of 217.03 feet to a
point on the northeasterly right-of-way of Peters
Street. Said line being the center line of a 14 foot
alley which extends from Chapel Street to Peters
(3)
(4)
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Street;
(5) North along the northeasterly right-of-way of Petera
Street, north 67/degrees, 7 minutes, 12 seconds east a
distance of 105.59 feet to the point and place of
BEGINNING.
Said tract containing 43,309 square feet or Q.994 acres.
Said description being drawn in accordance with the plat prepared
by A.S. Giometti & Associates, Inc., Registered Land Surveyor No.
1125, dated February 14, 1990.
Said property being improved property and having a common
street address of 465 Peters Street, Atlanta, Georgia.
The total area of.Tracts 1, 2, 3 and 4 being 2.273 acres.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
345 courtland street, n.e.
ATLANTA. GEORGIA 30363
4RC
MEMORANDUM
DATE:
SUBJECT* Prospective Purchaser Agreement with Florida Power and
Light Company; Florida Steel Superfund Site
FROMt Frank S. Ney
Associate Regional Counsel /f.
VJ'^Shn R. Barker^*****-—*-*-
THROUGH_
Regional Counsel
TO: Greer C. Tidwell
Regional Administrator
I. Introduction
The purpose o£ this memorandum is to provide you with a
description o£ the significant provisions of the prospective
purchaser agreement which the U.S. Environmental Protection
Agency (EPA or Agency) proposes to enter into with the Florida
Power and Light Company (FPL) and to discuss the facts specific
to this Site that support our determination that such an
agreement is appropriate. The proposed Agreement And Covenant
Not To Sue (Agreement) allows FPL to construct a transmission
line across part of the Florida Steel Superfund Site (Site) that
the Florida Public Service Commission determined was necessary to
prevent future blackouts in Southeast Florida.
The settlement gives a Covenant Not To Sue to FPL enabling it
to purchase a Right-of-Way easement over part of the Site without
acquiring liability as the owner of contaminated property under
Section 107(a) of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (CERCLA), 42
U.S.C. S 9607(a). On May 25, 1988, the Florida Public Service
Commission determined that a need existed for a 500 kilovolt
electric power transmission line to be constructed from the
Midway Substation in St. Lucie County to the Levee Substation in
Dade County. The lengthy process to obtain approval for this
transmission line ended on April 20, 1990, when the Governor and
Cabinet of the State of Florida, sitting as the Siting Board,
Printed on Pecyclec Pacer
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approyed a 2000 foot wide corridor for the construction of the
transmission line. Because this corridor crosses the Florida
Steel Superfund Site, FPL will not purchase a Right-of-Way
easement from Florida Steel Corporation (FSC) if the property
carries potential liability under CERCLA.
As consideration fair the covenant, FPL has agreed to pay EPA
$112,000, which will be used to offset some of the past costs
incurred by EPA at the Site which, as of March 31, 1992, were
$466,342.15. FPL has also agreed to cooperate fully with EPA in
the implementation of response actions at the Site; to grant EPA
an irrevocable Right of Site Access, (to the extent it has
acquired these rights); and to exercise due care to protect
public health and the environment.
FPL has provided £PA with details of the plans and
specifications for construction of the transmission line. Those
plans and specifications are attached to this memorandum as
"Exhibit B". FPL's construction plan'includes construction of
two (2) support structures (towers) and associated foundation
pads and guy wires. The two (2) towers are proposed to be
located in areas within the Right-of-Way which are
uncontaminated. Additionally,FPL will need to perform some
clearing of vegetation to facilitate construction of the
transmission line. FPL will utilize hand-clearing methods oc
avoid clearing activities wherever necessary to prevent
disturbance of areas of known contamination.
To supplement the information provided by FPL, EPA staff
requested that FPL propose a Site Sampling Plan consisting of a
program of soil and sediment sampling throughout the proposed
Right-of-Way. This will supplement the data received during the
Remedial Investigation Feasibility Study (RI/FS) process, and
will focus on the specific areas where the structures are
proposed to be constructed. FPL submitted a Site Sampling Plan
to EPA for review and EPA subsequently approved the plan, which
is attached to this menorandum as "Exhibit C".
In March 1992, FPL's consultant performed the sampling and
analyses set forth in the approved plan. On April 6, 1992, FPL
submitted a report of the sampling activities to EPA. This
report is attached, to this memorandum as "Exhibit D". The
sampling and analysis data confirm that the only areas of
contamination of concern lying within the proposed Right-of-Way
easement aire contaminated sediments in the drainage ditch which
crosses the Right-of-Way and surficial contaminated soils in that
portion of the Site formerly used as a scrap yard and depicted as
"Area D" on Exhibit "A" of the Agreement. No construction is
planned in these areas. The only potential for disturbance of
these areas is from maintenance vehicles that would need access
to damaged lines, and as discussed below, even this eventuality
will not be a problem. FSC, the only Potentially Responsible
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Party (PRP) at this Site, has agreed, pending the signing of the
ROD and approval by EPA, to remove the contaminated sediments
from the drainage ditch in the near future, optimally prior to
construction of the transmission line. If the contamination in
the ditch is not removed by FSC before construction begins, FPL
has stated that its activities will be planned to avoid the
contamination in the drainage ditch. The surficial contaminated
soils in "Area 0" are of less concern aince those soils are below
the cleanup goals in the Draft ROD and thus no remediation is
expected to be necessary in this area.
The Agreement was drafted in close consultation with the
Office of Enforcement and the Department of Justice. The
Agreement follows EPA Guidance of Innocent Landowner Settlements
and Prospective Purchaser Agreements, OSWER Directive No. 9835.9
(Guidance).
II. Site Background
FPL proposes to purchase a Right-of-way easement on a
portion of the Site froip the current owner of the Site, the
Florida Steel Corporation.
The Florida Steel Corporation Site is located on State
Highway 710 approximately two (2) miles northwest of Indiantovn
in Hartin County, Florida. The property owned by FSC covers
approximately 150 acres in an area zoned for industrial use and
is bounded on the north by the Seaboard Coast Line (CSX) Railroad
and the highway. Beyond the highway for several miles to the
north, there is only unimproved land. The Caullcins Citrus
Processing Plant is located to the northwest of the mill. On all
other sides of the property there is a swamp and vacant land.
FSC acquired the property in 1969 to construct a steel mill
using electric arc furnace technology for recycling scrap steel,
primarily junk automobiles, into new steel products including
concrete reinforcing steel and round and square merchant bar.
The mill operated from 1970 to 1983 when FSC temporarily stopped
production at the facility because of depressed economic
conditions; The mil-1 has not been operated since that time and
the company has no plans to reopen it.
Much of the contamination at the Site is due to emission
control (EC) dust. EC dust is the fine material generated at
very high temperatures in the furnace to drive off certain metals
contained in the scrap. The main constituents of EC dust are
cadmium, iron, zinc and lead oxides. The EC dust was collected
by baghouses and deposited in two on-site disposal areas until
November 1980. After that time, the newly generated EC dust was
collected and shipped off-site in accordance with new EPA
regulations.
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In December 1982, EPA included the Site on the National
Priorities List (NPL). Various investigations since that time
have been conducted by FSC with oversight provided by the Florida
Department of Environmental Regulation (FDBR) and/or EPA. These
investigations have established that EC dust and soils
contaminated with metals such as cadmium, lead and zinc, and
PCB's are present at the Site. In addition, groundwater at the
Site is contaminated with metals and radium, a naturally
occurring element that may have been concentrated in the
groundwater by the discharging from a water softening system at
the Site.
FSC conducted three (3) cleanup activities at the Site
between 1985 and 1987 to address EC dust and PCB soil
contamination. In 1985 FSC removed approximately 8000 tons of EC
dust from the disposal areas and shipped it to a metal recycling
facility for zinc recovery. In 1986, at the direction of FDER,
FSC excavated approximately 18,000 tons of soil, sediment, and EC
dust containing PCBs at a concentration level above 50 parts per
million (ppm) and placed it in a secure on-site storage vault.
During 1987-1988, at the direction of EPA, FSC incinerated the
material in the vault. The resulting ash contains heavy metals
and is currently stored in a building on-site.
Between 1988 and 1990, at the direction of FDER, FSC
conducted a Remedial Investigation (RI) to determine the extent
of contamination at the Site. The results of the RI confirmed
the type of contamination detected in previous investigations and
provided a better estimate of the location of the contamination.
In addition, surface water and sediment samples were collected
during the RI. Lead and zinc were found in surface water in the
"borrow pit" a small pond located on-site, and in surface water
collected from the drainage ditches connected to portions of the
Site housing the main plant operations. The sediment in these
drainage ditches also had elevated levels of lead.
In 1991, EPA prepared a Wetland Impact Study for the wetland
areas located south and east of the Site. Metals, mainly lead
and zinc, were found in the sediment and surface water, but at
levels typically lower than the levels on-site. PCBs were
detected at low levels in only one sediment sample from the
wetlands. Between 1991 and 1992, the Florida Steel Corporation
prepared a Feasibility Study (FS) to evaluate various cleanup
methods for the contamination identified during the RI. The FS
was approved in April 1992 and has been summarized in the
proposed plan which was released to the public for comment on
April 27, 1992. The preferred alternative in the Proposed Plan
includes excavation and off-site disposal of soil containing PCB
levels greater that 50 ppm, and on-site solidification/disposal
for PCB levels between 25 and 50 ppm; excavation and
solidification of EC dust and metals contaminated soil and ash in
an on-site double lined RCRA landfill with a RCRA cap;
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extraction, chemical treatment and filtration of contaminated
groundwater with discharge to the St. Lucie Canal, POTW or
industrial user. The comment period closed on May 27, 1992, and
a Record of Decision (ROD) is expected to be signed by June 30,
1992.
III. Florida Power and Light's Planned Transmission Line
FPL is in the process of constructing an electric power
transmission line in the State of Florida in a corridor specified
in a certification issued by the Governor and Cabinet of the
State of Florida. The certified corridor crosses the Site,
necessitating the acquisition by FPL of a Right-of-Way easement
across the Site. As a Prospective Purchaser of an interest in a
Super fund Site, FPL has requested that EPA enter into an
Agreement And Covenant Not To Sue in connection with its
acquisition of the Right-of-Way easement across the Site. The
following is a summary of the transmission line certification
process which resulted in the certification of a corridor
crossing the Site.
The Siting Process
In Florida, a proposal to construct an electric power
transmission line requires two separate approvals. First, the
Florida Public Service Commission (PSC) must determine that a
"need" exists for the transmission line, in accordance with
criteria set forth in Section 403.537, Florida Statutes. Second,
all environmental and land use permits, authorizations, licenses,
and other approvals must be obtained through a "Siting
Certification Process" which serves as a one-stop permitting
proceeding, in accordance with the criteria and procedures set
forth in Florida's Transmission Line Siting Act, Sections 403.52
through 403.5365, Florida Statutes.
The need determination for the transmission line project
begins when an applicant files a Petition to Determine Need with
the PSC. Next, a formal Evidentiary Hearing is held to determine
the need .for electric system reliability and integrity, the need
for sufficient, low-Cost electrical energy, and the appropriate
starting and ending points of the transmission line. The PSC
issues it8 determination as a Final Order, which is binding on
all parties and which is a condition precedent to a certification
hearing.
If the PSC determines that a need for a transmission line
exists, the party attempting to site a transmission line must
file an Application for Corridor Certification with the FDER.
pursuant to the Transmission Line Siting Act (TLSA). The TLSA
establishes a comprehensive licensing procedure. Certification
under the TLSA preempts all other state, regional and local land
use and environmental permits.
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After filing with FDER, copies of the TLSA Application are
distributed to all agencies within thei State with regulatory
jurisdiction. These agencies include the Florida Department of
Natural Resources, the Florida Department of Community Affairs,
the Florida Game and Fresh Water Fish Commission, and any local
government, water management district or regional planning
council within whose jurisdictional boundaries the proposed
corridor runs. Each agency prepares a report as to the impact of
the proposed transmission line on matters within its regulatory
jurisdiction.
In order to make a determination as to which corridor should be
certified, if any, the Governor and Cabinet must determine
whether, and the extent to which, the location of each proposed
corridor and the construction and maintenance of the transmission
line in each proposed corridor will*
(a) ensure electric power system reliability and integrity;
(b) meet the electrical energy heeds of the state in an
orderly and timely fashion;
(c) comply with the non-procedural requirements of
agencies;
(d) be consistent with applicable local government
comprehensive plans; and
(e) effect a reasonable balance between the need for the
transmission line aa a means of providing abundant,
low-cost electrical energy and the impact upon the
public and the environment resulting from the location
of the transmission line corridor, and the maintenance
of the transmission line.
Section 403.529(3), Florida Statutes. The Final Order issued by
the Governor and Cabinet is appealable to the Florida First
District Court of Appeals under Section 120.68, Florida Statutes.
In this case, on May 25, 1988, the PSC determined that a need
existed for a 500 kilovolt (Kv) electric power transmission line
to be constructed from the Midway Substation in St. Lucie County
to theT Levee Substation in Dade County (Levee-Midway Transmission
Line or, L-MTransmission Line). The PSC stated two major reasons
in support of its determination. First, the L-M Transmission
Line is needed to prevent a blackout to Southeast Florida in the
event of a single catastrophic event disrupting the current 500
Kv transmission line system. The PSC determined that without the
L-M Transmission Line, Southeast Florida will have an 85%
exposure to blackout by the year 2000. Second, the L-M
Transmission Line eliminates the need for future 500 Kv and 230
Kv transmission improvements that would be needed in Southeast
Florida to satisfy single contingency requirements. The PSC
determined that the L-M Transmission Line will significantly
reduce transmission system energy losses, resulting in a lower
effective peak demand for electricity, reduced need for
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additional new electric power generating capacity, and reduced
fuel consumption.
On January 9, 1989/ FPL filed with FDER the L-M Transmission
Line Application for Corridor Certification. Twelve parties
proposed fifty alternate corridors, of which thirty were
accepted. During the Certification Hearing, evidence was
presented on five alternate corridors. The issues at hearing
were whether any of the properly proposed corridors comply with
the criteria in Section 403.529(3), Florida Statutes; and, if so,
which of the corridors have the least adverse impacts with
respect to the criteria in Section 403.529(3), Florida Statutes,
including cost; and, if two or more corridors comply with the
criteria in Section 403.529(3), Florida Statutes, and have the
least adverse impacts, which of those corridors, should be
certified as the location for the Levee-Midway 500 Kv
Transmission Line.
After careful review of each of the five alternate corridors,
the Hearing Officer determined that the combination of the
corridor proposed by the Treasure Coast Regional Planning Council
(TCRPC) between the Midway Substation- and the Corbett Substation
and the corridor proposed by the South Florida Water Management
District (SFWMD) between the Corbett, Conservation and Levee
Substations has the least adverse impact on the public and the
environment. That determination was embodied in a Recommended
Order issued by the Hearing Officer and sent to the Siting Board
for final approval.
On April 20, 1990, the Governor and Cabinet of the State of
Florida, sitting as the Siting Board, approved and adopted the
2000 foot wide corridor recommended by the Hearing Officer. The
Siting Board determined that, of all the corridors proposed, the
certified corridor best satisfied the requirements and criteria
set forth in the Florida Transmission Line Siting Act. Under the
Certification Order issued by the Siting Board, FPL may construct
the L-M Transmission line only within the certified corridor.
FPL and FSC tentatively have agreed upon the alignment of a
200 foot wide transmission line Right-of-Way across the Site
within the 2,000 foot wide certified corridor. A drawing of the
proposed transmission line Right-of-way is shown on Exhibit "A"
attached to and incorporated by reference into the proposed
Agreement And Covenant Not to Sue.
IV. Terms of the Agreement
Consideration
The Guidance states that, " [GJenerally, the consideration
required of the Prospective Purchaser will be a cash payment."
Section IV of the present Agreement requires FPL to make a cash
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paymant in the amount of $112,000. This payment will be made to
EPA and will reimburse some of the past costs incurred at' the
Site. The payment is equal to the estimated Fair Market Value of
the easement interest FPL intends to acquire from FSC. The
market value was determined by an appraisal conducted by a
qualified, licensed Florida property appraiser, in conjunction
with the initiation by FPL of an eminent domain proceeding to
acquire the easement necessary to construct the L-H Transmission
Line. The property appraisal assumed an uncontaminated,
unencumbered condition of the property in determining the Fair
Market Value of the acreage contained within the proposed Right-
of-Way easemient. Without a Covenant Not To Sue from EPA, the
easement has little or no value. Thus, in effect, the $112,000
represents the value added to the property by the Covenant Not To
Sue FPL.
In addition to the requirement that FPL pay $112,000, the
Agreement'also contains the terms required by EPA Guidance. The
Guidance requires that the Agreement include a Reservation of
EPA's Rights to assert all claims against the Prospective
Purchaser, except for those expressly released in the Agreement,
for those claims arising fromt
1. The release or threat of release of any hazardous
substance, pollutant or contaminant resulting from the
Purchaser's activity at the Site;
2. The release or threat of release of any hazardous
substance, pollutant or contaminant resulting from the
introduction of any hazardous substance, pollutant, or
contaminant at the Site by any person after the date of
acquisition by the Purchaser;
3. Exacerbation by the Purchaser of contamination existing
prior to the date of acquisition;
4. Failure of the Purchaser to cooperate with EPA, its
response action contractors, or other persons
conducting response activities under EPA oversight in
tha implementation of response actions at the Site;
5. Failure of the Purchaser to exercise due care with
respect to any contamination at the Site;
6. Any and all criminal liability; and
7. Liability for damages for injury to, destruction of, or
loss of natural resources.
The Agreement includes each of these enumerated Reservations
of Rights. The Guidance also requires, and the Agreement with
FPL includes, provisions addressing each of the followingt
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1. With respect to any claims or cause of action asserted
by EPA against FPL, FPL bears the burden of proving
that the claim, or cause of action is attributable
solely to contamination which existed prior to the date
of acquisition;
2. EPA expressly reserves its right to assert all claims
and causes of action against all persons other than
FPL;
3. FPL agrees not to assert any claims or causes of action
against the United States or the Hazardous Substance
Superfund arising from contamination of the facility
which exists as of the date of acquisition of the
Right-of-Way, or to seek any other costs, damages, or
attorneys fees from the United States arising out of
response activities at the Site;
4. FPL will file a notice in the local land records along
with recordation of its easement, stating that
hazardous substances were disposed of on the Site and
that EPA make8 no,representation as to the appropriate
use of the property;
5. FPL grants an irrevocable Right of Entry to EPA, its
response action contractors and other persons
performing response actions under EPA oversight for the
purpose, of taking response actions at the facility or
for monitoring compliance with this Agreement;
6. None of the terms of the Agreement are to be construed
as limiting or restricting the nature or scope of
response actions which may be undertaken by EPA in
exercising its authority under federal law;
7. Nothing in the Agreement may be construed to relieve
FPL of its duty to exercise due care with respect to
hazardous substances, pollutants, contaminants and
solid waste at the Site, or its duty to comply with all
applicable laws and regulations;
8. FPL recognizes that the implementation of response
actions at the Site may interfere with FPL's use of
that portion of the Site covered by the Right-of-Way;
and;
9. The Agreement does not constitute a finding by EPA
regarding the risks to human health and the environment
which may be posed by contamination at the Site nor
does EPA represent that the Site is fit for any
particular purpose.
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The Agreement is memorialized in an "Agreement and .Covenant
Not To Sue" to be executed by representatives of EPA and FPL.
Since FPL is not a PRP at the Site, the Agreement does not fall
within the definition of a de minimis settlement under Section
122(g)(1)(B) of CERCLA, 42 U.S.C. S 9622(g)(1)(B). The Agreement
cites CERCLA as its general authority on the theory that the
Agreement is baaed on EPA's inherent authority to enter into a
contract. The Agreement does not require a public comment period
before it becomes effective because the Agreement is not a
settlement with the United States. Prospective Purchaser
Agreements which EPA previously entered into did not require
public notice.
V. "Settlements Criteria
The following minimum criteria are set forth in EPA's
guidance document as being required before EPA will consider
entering into an Agreement and Covenant Not to Sue with a
Prospective Purchaser!
(a) Enforcement action is anticipated by EPA at the
facility;
(b) A substantial benefit, not otherwise available, will be
received by the Agency for cleanup;
(c) The Agency believes that the continued operation of the
facility or new site development, with the exercise of
due care, will not aggravate or contribute to existing
contamination or interfere with the remedy;
(d) Due consideration has been given to the effect of
continued operations or new development on health risks
to those persons likely to be present at the Site; and
(e) The prospective purchaser is financially viable.
Entering into a Covenant Not to Sue with FPL is appropriate
because each of the minimum criteria are met, and entry of the
Covenant is in the public interest. Specific consideration of
the minimum criteria follows.
(a) Enforcement Action
There is no question that this first criteria has been met in
this case. The guidance states that "[S]uch Covenants generally
will be considered only with regard to those facilities listed or
proposed for listing on the NPL, those facilities at which "Fund"
monies have been expended, or those facilities which are the
subject of a pending enforcement action." All of these
considerations are present for this Site. As discussed in
Section II, this Site has been listed on the NPL, Fund moneys
have already been expended, and regarding enforcement action^ not
only has EPA previously issued a Removal Order against FSC, EPA
will soon issue a Special Notice Letter to FPC for negotiating a
Consent Decree for the cleanup of the Site. In addition, if FSC
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does not enter into a Consent Decree, EPA may issue a Unilateral
Administrative Order (XIAO), under Section 106 of CERCLA, ordering
FSC to implement the required remedial actions.
(b) Substantial Benefit
The second criterion set forth in EPA's guidance document
requires that EPA.receive a substantial benefit not otherwise
available to it, in exchange for its Agreement to enter into the
Covenant. In this case, since the ROD for the Site has not yet
been issued, FPL cannot propose to undertake remedial activities
or a portion of them, as consideration for the proposed Covenant.
The Site owner, FSC, has performed the RI/FS and has expressed
its willingness to undertake implementation of the Site remedy
after issuance of the flOD. Therefore, a cash payment is
appropriate. Although EPA expects all anticipated response costs
to be recovered from FSC, there is the possibility that some
portion of.anticipated response costs,, may not be recoverable from
Florida Steel, if Florida Steel's financial stability worsens, or
if Florida Steel, for any reason, declines to enter into a
Consent Decree for remedial action. Because of the importance of
the public interest considerations in this case as discussed in
Section III above not only will this Agreement benefit EPA, it
will be a benefit to many Florida citizens as well.
(c) Aggravation of Site Conditions
The third criterion for SPA to enter into an Agreement and
Covenant Not To Sue requires that the "new development" will not
aggravate or contribute to the existing contamination or
interfere with the remedy. FPL has demonstrated tb EPA that the
construction and maintenance of the L-M Transmission Line will
not aggravate the contamination or interfere with Site
remediation.
FPL provided EPA with drawings depicting the alignment of
the transmission line along a route which avoids existing
contamination to the maximum extent possible. FPL conducted soil
and sediment sampling along the proposed Right-of-Way to ensure
that EPA Is"able to -evaluate fully the potential impacts of
construction on existing contamination and remediation
activities. The sampling and analysis confirmed that only two
areas of contamination lie within the proposed Right-of-Wayi the
drainage ditch containing contaminated sediments and the
surficial contaminated soils in "Area D."
FPL has demonstrated that construction, and operation and
maintenance of the L-M Transmission Line will not aggravate or
exacerbate known existing contamination, or interfere with or
delay implementation of required remedial activities. As noted
in Section I above, the support structures will .only be erected
in uncontaminated areas of the Right-of-Way, and there are only
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two areas within the the Right-of-way that are known to.contain
contamination. One such area, the„drainage ditch, wili likely be
remediated by FSC in the. near future, (pending finalization of
the ROD and approval by EPA) and even if the remediation does not
proceed as rapidly as hoped, FPL has indicated that it can if
necessary,, avoid this area. The other contaminated area, the
surficial contaminated soils in "Area D", are of less concern
sixice those soils are below the cleanup goals in the Draft HOD
and thus no remediation is expected to be necessary in this area.
In addition, FPL will not need to perform any construction in,
this area. The only scenario upon which this area will be
impacted by FPL is if the Transmission Line above this area needs
repairs, and a truck would need to traverse this area to get
access to the Transmission Line.
FPL'a extensive documentation, sampling, and analysis
demonstrate that the construction, operation and maintenance of
the L-M Transmission Line will hot aggravate existing
contamination or interfere with Site remediation. For the above
stated reasons, the third criterion of EPA's guidance document is
met.
(d) Health Risks
The fourth criterion in EPA's guidance document requires
consideration of the health risks posed by construction of the
Transmission Line on those persons likely to be present at the
Site. Construction of the L-K Transmission Line poses no
additional health risks to potentially exposeid persons.
Since the Indiantown Mill has not been operated since 1982,
there are no FSC employees present at the Site on a daily basis.
The only persons likely to be present at the Site are the FPL
employees and contractors constructing and maintaining the
Transmission Line and EPA's and FSC'8 employees and contractors
engaged in investigating and remediating the Site. The FPL
employees and contractors will not be exposed to any contaminated
soils while constructing the Transmission Line. Therefore,
construction of the L-K Transmission Line poses no additional
health risk-to FPL'& employees.or contractors. Also, as
discussed in earlier Sections, maintenance of the L-M
Transmission Line should pose little threat to health since there
are only two areas of contamination within the Right-of-Way, and
one (the drainage ditch) will be remedied by FSC (pending
finalization of the ROD and approval by EPA) and the other ("Area
D") has contamination below the cleanup goals in the Draft ROD.
The FSC and EPA employees and contractors, who are engaged
in investigating or remediating the Site, will also not be
affected by the construction and maintenance of FPL's
Transmission Line. Thus, the construction, operation and
maintenance of the L-M Transmission Line poses no additional
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health threat to any persons expected to be present at the Site.
(e) FinancialViability
The final criterion'set forth in EPA's guidance document is
that the Prospective Purchaser be financially viable to fulfill
the requirements of the Covenant. FPL is one of the largest
electric power producing utilities in the United States and is
the largest producer of electricity in the State of Florida.
FPL's assets are more than sufficient to satisfy any liability it
could incur in connection with its activities at this Site and
the requirements and conditions of the Agreement. FPL is a
publicly regulated utility whose rates are approved by the PSC tc
ensure the financial viability of the company and to protect the
interests of those citizens of the State of Florida who are FPL
ratepayers. FPL's financial viability is not an issue in this
matter.
Public Interest
In addition to the .minimum criteria discussed above, EPA'a
guidance document requires that the Agreement generally must be
in the public interest. The proposed Covenant is in the public
interest for the following reasons*
1. The proposed 500 Ky Transmission Line is needed to
provide adequate low-cost electric power to the
citizens of Florida, as established by the "Meed For
Power" determination issued by the Florida PSC;
2. Without the Covenant Not; To Sue, FPL would be subjected
to potentially multi-million dollar liability under
CERCLA;
3. Any CERCLA liability accruing to FPL may ultimately be
borne by FPL ratepayers, who are citizens of Florida
and whoa the Transmission Line is intended to benefit;
4. Construction, maintenance and operation of the L-K
Transmission Line should not aggravate site conditions,
impede, delay or make more difficult any required
remedial action; and
5. The public has a substantial interest in ensuring the
availability of abundant, cost-effective electrical
power.
Content and Form of Settlement
Pages 31-34 of the Guidance discusses the content and form ol
the Agreement. These aspects of the Agreement are addressed in
Section IV (Terms of the Agreement) above.
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VI. Recommendation
Based on the reasons set forth above and an evaluation of
the terms of the Agreement, it is our recommendation that EPA
enter into the Agreement. Precedent has been set in Region IV
with the Tennessee Chemical/Boliden Prospective Purchaser
Agreement, where there were significant public interest
considerations and where the Agency obtained a substantial
benefit. Further, in other Prospective Purchaser Agreements
across the country, the Agency has done a case by case
evaluation, resulting in the grantingf of Agreements under
circumstances not specifically contemplated by the guidance.
The Region is interested in having the Agreement take effect as
soon as possible. FPL cannot purchase the Right-of-Way easement
without the Agreement, and construction on the Transmission Line
is scheduled to begin in mid July, 1992.
Pursuant to the Prospective Purchaser Guidance, the Attorney
General, Assistant Administrator for Enforcement, and the
Assistant Administrator for Solid Waste and Emergency Response
must concur in approving the Agreement.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF:
FLORIDA: POWER & LIGHT' COMPANY,
A FLORIDA CORPORATION
Under the Authority of the
Comprehensive Environmental
•Response, Compensation, and
Liability Act of 1980, 42 U.S.C.
9601 et sea., as amended.
I. INTRODUCTION
This Agreement and Covenant Not to Sue ("Agreement'1') is
made and entered into by and between .the United States, at the
request and on behalf of the Administrator, United States
Environmental Protection Agency ("EPA"), and Florida Power and
Light ("FPL"), a Florida corporation (jointly known as "the
Parties");
1. WHEREAS, this Agreement is entered into by the
United States pursuant to the authority conferred on the
President by the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA), as amended by
the Superfund Amendments and Reauthorization Act of 1986 (Pub. L.
No. 99-499, 100 Stat. 1613), 42 U.S.C. § 9601 et seg., and is
consistent with current EPA guidance;
2. WHEREAS, the purpose of this Agreement is to
resolve the potential future liability of FPL for the Existing
Contamination (as set forth in Paragraphs 7-9), that may arise as
a result of FPL's acquisition of a Right-of-way easement over
part of Florida Steel's Indiantown Mill Superfund Site (the
AGREEMENT AND COVENANT NOT
NOT TO SUE RE: TRANSMISSION
LINE RIGHT-OF-WAY WITHIN
THE FLORIDA:STEEL SUPERFUND
SITE
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"Site") for the purpose of construction and operation of the
Levee-Midway 500 kV Transmission Line, provided that the
resolution of such liability does not discharge or affect in any
manner any other party, including Florida Steel Corporation, from
liability regarding Existing Contamination;
3. WHEREAS, in December 1982, EPA listed the Site on
the National Priority List of hazardous substances sites pursuant
to Section 105 Of CERCLA, 42 U.S.C. § 9605;
4. WHEREAS, the Site covers approximately 150 acres in
Martin County, Florida, approximately 2 miles northwest of
Indiantown, and is bounded on the north by the Seaboard Coast
Line Railroad and State Road 710;
5. WHEREAS, Florida Steel Corporation ("FSC*) has been
the owner of the Site since 1969;
6. WHEREAS, FSC constructed a steel mill on the Site,
and at that mill, which used electric arc furnace technology,
recycled scrap steel (primarily junk automobiles), into new steel
products;
7. WHEREAS, FPL seeks to obtain an easement for a
Right-of-way across the Site for construction, operation and
maintenance of a 500 kV electric power transmission line, known
as the Levee-Midway 500 kV Transmission Line ("the Transmission
Line");
8. WHEREAS, during its operation of the steel mill
from November 1970 through February 1982, FSC produced large
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quantities of mill scale, slag, and emission control dust (»ec
dust*)f
9. WHEREAS, . until November 17, 1980, FSC deposited EC
dust in two disposal areas within the Site, and during 1985,
removed approximately 8,000 tons of remaining EC dust from the
.on-site EC dust disposal areas and shipped it under manifest to a
metal recycling facility;
10. WHEREAS, prior to enactment of the Toxic
Substances Control Act in 1976, a portion of the Site also became
contaminated with polychlorinated biphenyls (*PCBs*);
11. WHEREAS, large quantities of waste products
generated by FSC and containing iron, zinc, lead, cadmium, and
PCBs, each of which is a "hazardous substance* within the meaning
of Section 101(14) of CERCLA, 42 U.S.C. § 9601(1), and also a
"pollutant or contaminant* pursuant to Section 101(33) of CERCLA,
42 U.S.C. § 9601(33), were released into the environment and
disposed of at the Site;
12. WHEREAS, during 1986 approximately 11,200 cubic
yards (18,800 tons) of soil, sediment, and EC dust containing
PCBs at concentrations of 50 ppm or greater were excavated from
the Site and, pursuant to an Administrative Order (AO) on Consent
between FSC and EPA dated September 21, 1987, incinerated on-site
during late 1987 and early 1988;
13. WHEREAS, because the ash from the incineration
process still contained heavy metals, that ash was and is stored
within a covered ash retention building, pursuant to the AO dated
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September 21, 1987, pending its final disposal after completion
of the Remedial Investigation"and Feasibility Study ("RI/FS") and
issuance of the Record of Decision for the Site;
14. WHEREAS, as part of its Superfund investigation
at the Site, EPA and the State of Florida Department of
.Environmental Regulation are overseeing the RI/FS, which is being
conducted by FSC's environmental consultants and contractors to
determine the nature and extent of the threat to human health and
the environment posed .by contamination at the Site and to
identify and evaluate methods of remediating the hazards posed by
such contamination;
15. .WHEREAS, Phase II of the Remedial Investigation
Report was completed on October 17, 1989, and a report on
additional sampling was completed on May 15, 1990;
16. WHEREAS, the Feasibility Study is now being
conducted, and cbmpletion of the FS is expected by June 1992;
17. WHEREAS, following the public comment period, EPA
will issue its Record of Decision for final remedial cleanup
actions at the Site;
18. WHEREAS, the removal actions taken by FSC at the
Site, as described in Paragraph 12 above, have decreased exposure
to contamination, although final remedial action and cleanup of
the site will not be completed for several years;
19. WHEREAS, any development of real property within
the Site may significantly be affected by EPA's decisions
regarding final remedial action for Site cleanup;
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20. WHEREAS, development and disturbance of
contaminated property within the site may cause a release or
threat of release of hazardous substances within the meaning of
Sections 104, 106 and 107 of CERCLA, 42 U.S.C. §§ 9604, 9606 and
9607., and owners or operators of such contaminated properties may
.be liable parties pursuant to Sections 106 and 107(a) of CERCLA,
42 U.S.C. §§ 9606 and 9607(a);
21. WHEREAS, FPL intends to acquire a Right-of-Way
across the Site for the Transmission Line, on which FPL intends
to construct, operate and maintain the Transmission Line and its
associated support structures, and use and maintain a dirt access
road;
22. WHEREAS, FPL will not excavate any Existing
Contamination during its proposed construction or operation and
maintenance activities within the Right-of-Way;
23. WHEREAS, FPL intends to acquire from FSC an
easement across part of the Site for construction, operation and
maintenance of a portion of the Transmission Line;
24. WHEREAS, the Transmission Line is required under
Florida law to be located in a corridor certified ("'Certified
Transmission Line Corridor*) by the Governor and Cabinet of
Florida, sitting as the State of Florida Siting Board ("Siting
Board'1'), pursuant to the Transmission Line Siting Act, Fla. Stat.
§§ 403.52-403.536 (1991);
25. WHEREAS/ on April 20, 1990, the Siting Board
entered a Final Order which granted certification for a corridor
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for the Levee-Midway 500 kv Transmission Line. The certified
corridor is approximately 150 miles in length and traverses five
counties in order to connect FPL's Midway Substation in St. Lucie
County, Florida, and FPL's Levee Substation in Dade County,
Florida. The corridor which traverses the Site is 2000 feet in
width and was proposed by the Treasure Coast Regional Planning
Council and was subsequently recommended to the Siting Board by
the FDER, the Florida Department of Community Affairs, the
Florida Game and Fresh Water Fish Commission, and the South
Florida Water Management District;
26. WHEREAS, the Transmission Line Right-of-Way will
cross the Site as depicted on Exhibit A attached hereto and
incorporated herein by this reference;
27. whereas, EPA has required FPL to conduct
additional sampling and analysis in and around the proposed
Right-of-way, and on March 19, 1991, EPA approved FPL's Workplan
to perform the sampling and analysis;
28. WHEREAS, EPA has reviewed the sampling and
analysis results submitted by FPL on April 6, 1992, pursuant to
the sampling and analysis workplan;
29. WHEREAS, EPA has reviewed the plans,
specifications, and construction guidelines for the Transmission
Line, and has determined on the basis of current information that
FPL's construction, operation and maintenance activities on the
Site, with the exercise of due care, will not likely aggravate or
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contribute to the Existing Contamination and will not likely
interfere with any future response actions at the Site;
30. WHEREAS, this Agreement and Covenant Not to Sue is
in the public interest;
31. WHEREAS, EPA and FPL hereby intend, by execution
erf this Agreement, to authorize FPL to construct and maintain the
Transmission Line with as little disturbance as possible to the
Existing Contamination;
32. NOW THEREFORE, in consideration of and in exchange
for the promises, agreements, and mutual undertakings contained
herein, the Parties hereto, intending to be legally bound hereby,
hereby agree as follow?:
II. CERTIFICATION OF SETTLING PARTY
33. FPL certifies that, to the best of its knowledge
and belief, it has fully and accurately complied with all
requests made by EPA for disclosure to EPA of information
currently in its possession, or in the possession of its
officers, directors, shareholders, employees, contractors, or
agents, which is relevant to the financing, development,
construction, operation and maintenance of the Transmission Line.
34. unless otherwise expressly provided herein, terms
used in this Agreement which are defined in CERCLA or in
regulations promulgated under CERCLA shall have the meaning
assigned to them in CERCLA or in such regulations. Whenever
terms listed below are used in this Agreement or in the Exhibits
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and Appendices attached hereto and incorporated hereunder, the
following definitions shall apply:
"Agreement* shall mean this Agreement and all
appendices attached hereto. In the event of conflict between
this Agreement and any appendix, this Agreement shall control.
TCERCLA" shall mean the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended by
the Superfund Amendments & Reauthorization Act of 1986. 42 U.s.c.
8 9601 et seq.
"Construction, operation and maintenance activities"
shall mean FPL's construction, operation and maintenance
activities within the Right-of-Way in connection with the
Transmission Line and the associated unpaved road.
"Contractor" shall mean FPL's contractors and
subcontractors.
"Day" shall mean a calendar day unless expressly stated
to be a working day. "Working day" shall mean a day other than a
Saturday, Sunday, or federal holiday, rn computing any period of
time under this Agreement, where the last day would fall on a
Saturday, Sunday, or federal holiday, the period shall run until
the close of business of the next working day.
"EPA" shall mean the United States Environmental
Protection Agency and any successor departments or agencies of
the United States.
"Existing Contamination" shall mean any contamination
by any hazardous substances, pollutants, or contaminants or solid
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waste within the Right-of-Way within the Certified Transmission
Line Corridor present or existing as of the effective date of
this Agreement.
"FPL* shall mean Florida Power and Light Company.
"FSC shall mean Florida Steel Corporation.
"National Contingency Plan* or "NCP* shall mean the
National Oil and Hazardous Substances Pollution Contingency Plan
promulgated pursuant to Section 105 of CERCLA, 42 U.S.C. § 9605,
codified at 40 C.F.R. Part 300.
"Paragraph9 shall mean a portion of this Agreement
identified by an Arabic, numeral.
"Parties" shall mean the United States and FPL.
"Right-of-Way* shall mean that portion of the
Transmission Line Corridor located within the boundaries of the
Site and actually acquired by FPL, as depicted on Exhibit A,
attached hereto and incorporated herein.
"Section" shall mean a portion of his Agreement
identified by a Roman numeral and including one or more
paragraphs.
"Site* shall mean the Indiantown Mill Superfund Site,
as described in the RI/FS and the ROD to be issued for the Site.
"Transmission Line Corridor" shall mean that portion of
the real property identified as "the transmission line corridor"
depicted on Exhibit A, attached hereto and incorporated herein by
this reference.
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"United States* shall mean the United States of
America.
IV. PAYMENT
35. In consideration of and in exchange for the United
States' Covenant Not to Sue herein in Section VIII, FPL agrees to
.p'ay to EPA the sun of $ $112,000.00, within 30 days after the
effective date of this Agreement. FPL's check shall be made
payable to the U.S. EPA Hazardous Substance Superfund referencing
the Florida Steel Superfund Site, CERCLA No. 78. Payment shall
be made to:
U.S. Environmental Protection Agency
Region IV
Superfund Accounting
P.O. Box 100142
Atlanta, GA 30344
Attn: (Collection Officer for Superfund)
Copies of the check and transmittal letter shall be sent to those
persons listed in Section XVI (Notices).
V. FUTURE RESPONSE ACTIONS
36. The United States in this Agreement reserves its
right to undertake future response actions and/or assessment of
natural resource damages on the Site. The United States also
reserves its right to seek injunctive relief or issue
administrative orders requiring parties to perform response
actions or assessments at the Site. Nothing in this Agreement
shall in any manner restrict or limit the nature or scope of
response actions or assessments which the United States may take
or require in exercising its authority under federal law.
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37. FPL acknowledges that it intends to acquire an
easement over contaminated property within the Site that may
require further response actions. FPL further recognizes that
the implementation of response actions at the Site may interfere
with FPL's use of that portion of the Site covered by the Right-
of-way. FPL agrees to cooperate fully with the United States in
the implementation of response actions at the Site. FPL agrees
not to interfere with EPA's response actions or assessment of
natural resource damages.
VI. DUE CARE
38. Nothing in this Agreement shall be construed to
relieve FPL of its duty to exercise due care with respect to
hazardous substances, pollutants, contaminants, and solid wastes
at the Site, or its duty to comply with all aDDlicahle laws and
regulations.
VII. COMPLIANCE WITH APPLICABLE STATE AND FEDERAL LAWS
39. FPL agrees to comply with all applicable state and
federal laws and regulations, specifically including any decrees,
orders and permits issued under state or federal law, in
connection with its construction, operation and maintenance
activities on the Site. This Agreement does not constitute a
decree, order or permit.
VIII. COVENANT NOT TO SUE BY UNITED STATES
40. Subject to the reservation of rights in Section
IX, upon execution of this Agreement, the United States hereby
covenants not to sue or take any other civil or administrative
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action, and not to establish any lien, against FPL for any civil
liability for reimbursement of response costs or for injunctive
relief pursuant to Sections 106 and 107 of CERCLA, 42 U.S.C.
§§ 9606 and 9607, or Section 7003 of RCRA, 42 U.S.C. § 6973,
arising from the Existing Contamination.
41. Notwithstanding the previous paragraph, the United
States may bring an action as a result of new contamination at
the Site or exacerbation of Existing Contamination caused by or
resulting from FPL's actions. FPL shall have the burden of
proving, in such action, what contamination is Existing
Contamination.
IX. COVENANT NOT TO SUE BY FPL
42. In consideration of. the covenants not to sue in
Section VIII of this Agreement, FPL agrees not to assert any
claims or causes of action against the United States, its
agencies, subdivisions, contractors, agents or employees, or
against the Hazardous Substances Response Trust Fund pursuant to
42 U.S.C. § 9606(b)(2), arising out of contamination of the Site
existing at the time that FPL acquires the Right-of-way, or for
reimbursement of funds expended, expenses incurred, payments
made, or work performed regarding any of FPL's construction,
operation and maintenance activities undertaken in connection
with the Right-of-way. FPL further agrees not to seek any other
costs, damages, or attorney's fees from the United States, its
agencies, subdivisions, contractors, agents or employees, arising
out of response activities at the Site. This covenant not to sue
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shall include all claims or causes of action for interference
with contracts, business relations and economic advantage.
Nothing herein shall be deemed to constitute preauthorization of
a claim within the meaning of section 111 of CERCLA, 42 U.S.C.
§ 9611, or 40 C.F.R. § 300.25(d).
X. UNITED STATES' RESERVATION OF RIGHTS
43. The United States reserves it rights to bring any
claim or cause of action, administrative or judicial, civil or
criminal, in law or equity, which it may have against any person
or entity other than FPL. Such reservation includes, without
limitation, the right to seek injunctive relief, or issue
administrative orders,, requiring such other persons other than
FPL, to take response actions within the Right-of-way, and the
right to seek reimbursement from any person, other than FPL, for
costs incurred by the United States on any portion of the Site.
44. Nothing in this Agreement is intended to be nor
shall it be construed as a release or covenant not to sue for any
claim or cause of action, administrative or judicial, at law or
in equity against FPL for:
a. the release or threat of release of hazardous
substances, pollutants, contaminants, or solid wastes, other than
Existing Contamination, resulting from the actions of FPL or its
Contractors on the site;
b. any liability for the release or threat of release
of any hazardous substance, pollutant, or contaminant, resulting
from the introduction of any hazardous substances, pollutants,
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contaminants or solid wastes by any person at the Site after the
effective date of this Agreement;
c. interference by FPL or its Contractors with
response actions conducted or required by the United States at
the Site, or any failure to cooperate with EPA, FSC or their
.employees, agents, contractors or other authorized
representatives conducting response activities under EPA
direction or oversight at the Site;
d. transportation by FPL or its Contractors of
hazardous substances, pollutants, contaminants or solid wastes
from the Right-of-Way;
e. disposal-bv FPL or its Contractors of hazardous
substances, pollutants, contaminants or solid wastes outside of
the Right-of-Way;
f. exacerbation of releases of Existing Contamination,
including, but not limited to, creating a source of contamination
(e.g., windblown dust, runoff, etc.) as a result of FPL's or its
Contractors' construction, operation and maintenance activities
at the Site;
g. failure of FPL or its Contractors to exercise due
care regardina anv hazardous substances, pollutants, contaminants
or solid wastes at the Site, including, but not limited to,
Existing Contamination;
h. any and all criminal liability;
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i. claims based on failure of FPL to meet a
requirement or to otherwise comply with the terms of this
Agreement;
j. liability for damages for injury to, destruction
of, or loss of natural resources;
k. failure by FPL or its Contractors to provide
access;
1. any matters not exnressly included in the covenant
not to sue set forth in Section VIII of this Agreement.
m. any liability as a result of new information
related to present contamination in areas of the site outside of
the Right-of-Way.
45. Subject to the provisions of Section V (Future
Response Actions), the United states reserves its rights to take
any response action authorized by CERCLA at the Site, including
but not limited to, investigation, studies, removal actions,
remedial actions, or assessment of natural resource damages.
46. Notwithstanding any other provisions of this
Agreement, the United States reserves the right to seek
modification of this Agreement or to institute an action under
Sections 106 and 107 of CERCLA, 42 U.S.C. §§ 106 and 107 if
previously unknown conditions are discovered or information is
received, in whole or in part, after the effective date of this
Agreement, and these previously unknown conditions or this
information indicates that FPL is liable for the Existing
Contamination, except insofar as such liability arises solely by
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reason of FPL's acquisition of the Right-of-Way. FPL has
represented to the United States that it has no present-or past
involvement at the proposed Right-of-Way within the Site.
XI. FPL's RESERVATION OF RIGHTS
47. FPL reserves all rights and defenses which it may
have and which are not otherwise addressed in this Agreement.
The execution of this Agreement by FPL is not an admission of
liability on its part. If EPA determines that FPL is responsible
for any response actions that are not barred by this Agreement,
EPA may negotiate with FPL tor FPL's undertaking of any such work
or activity, prior to EPA's undertaking of such work.
48. This Agreement does not grant any rights or affect
any liabilities of any person, firm, or corporation other than
FPL? provided, however, that any party undertaking or financing
development upon the Site shall have the right to seek to obtain,
subject to EPA's sole discretion to enter into, a covenant not to
sue, similar to this Agreement, upon full compliance with EPA
directives.
XII. DISCLAIMER
49. This Agreement in no way constitutes a finding by
EPA regarding the risks to human health and the environment which
may be posed by contamination at the Site. This Agreement does
not constitute a representation by EPA that the Site is fit for
any particular purpose.
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XIII. RETENTION OF RECORDS
50. FPL shall retain and make available all business
and operating records, reports, contracts, site studies and
investigations, and other documents relating to any and all
hazardous substance releases on the Right-of-Way, for at least
ten (10) years after the effective date of this Agreement unless
otherwise agreed in writing by EPA. At the end of ten years, FPL
shall notify EPA of the location of such documents and records
and shall provide EPA with an opportunity to copy any and all
such documents.
XIV. SITE ACCESS AND NOTICE
51. a. FPL,hereby grants to the United States, its
respective representatives, contractors, agents, and all other
persons performing response actions under EPA oversight for the
purpose of taking response actions at the Site and for monitoring
compliance with this Agreement, an irrevocable right of access
without prior notice to FPL at any reasonable time to the extent
of all rights of access, ingress, egress, or use as FPL may
acquire to the Right-of-Way at the Site and to the site for any
purposes relating to the terms of this Agreement, or to
performing, directing or monitoring the performance of response
actions at the Site, including, but not limited to:
1. verifying any data or information submitted to the
United States;
2. conducting investigations relating to
contamination at the site;
3. obtaining samples;
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4. assessing the need for, planning, or implementing
additional response actions at or near the Site;
and;
5. inspecting and copying records related to this
Agreement.
Such access shall include, without limitation, the right to move
freely about the Right-of-way, make observations, take notes, and
use a camera, video recording, sound recording, or other
documentary type of equipment.
b. FPL shall file in the land records of Martin
County, Florida, a notice, approved in advance by EPA, to
subsequent purchasers of the Right-of-Way, that hazardous
substances may be present on the Right-of-Way and that EPA makes
no representations a£ to the appropriate use of the Right-of-Way.
FPL. shall provide a proposed notice to EPA within 15 days after
the effective date of this Agreement and shall file the notice
within 30 days after the notice is approved by EPA.
52. FPL agrees that it will fully cooperate with
representatives of the United States in its inspections of the
Site and the Right-of Way. The United States agrees to use
reasonable efforts under the circumstances to minimize any
interference with FPL's construction, operation and maintenance
activities by such entry and actions.
53. FPL further grants the United States access to the
Right-of-Way and the Site to the extent access is authorized by
CERCLA or other applicable law, and nothing herein shall in any
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way limit such rights of access granted by CERCLA or other
applicable law.
54. All tools, equipment, building improvements, or
other property taken or placed within the Right-of-Way by or at
the direction of epa, or its officers, agents, contractors, and
assigns pursuant to entry for purposes described in the paragraph
above shall remain the property of EPA, provided that EPA shall
remove all such property after such property no longer is needed
to complete remediation activities at the Site.
XV. ASSIGNMENT OF RIGHTS
55. FPL's rights, benefits, and obligations under this
Agreement may be assigned or transferred to any person upon the
non-reviewable written approval and consent from the United
States in its sole discretion.
XVI. NOTICES
56. All notices, demands or other communications
required to be given or made by one party to the other in
connection with this Agreement shall be given in writing and
shall be deemed to have been given when posted by certified or
registered mail, return receipt requested, or when sent by a
recognized overnight courier service for next day delivery, to
the following:
a. if to FPL:
Thomas M. DeRose
Hopping, Boyd, Green & Sams
123 South Calhoun St.
P.O. Box 6526
Tallahassee, Florida 32314
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b. if to the United States:
Randy Bryant
Waste Management Division
South- Superfund Remedial Branch
U.S. EPA, Region IV
345 Courtland St., N.E.
Atlanta, GA 30365
Frank S. Ney
Office of Regional Counsel
U.S. EPA/ Region IV
345 Courtland St., N.E.
Atlanta, GA 30365
Chief, Environmental Enforcement Section
Environment & Natural Resources Division
U.S*. Department of Justice
P.O. Box 7611
Ben Franklin Station
Washington, D.C. 20044-7611
fDOJ File # 90-11-2-700)
All notices shall be deemed received on the date delivered by
hand or by confirmed telefax, on the day after sent by recognized'
overnight courier service for next day delivery, and on the third
day after sent by registered or certified mail.
XVII. PERSONS BOUND
57. Each party shall provide two (2) signature pages
executed by such party; and a duly executed signature page
provided by each of the parties hereto shall be affixed to each
of two (2) copies of this Agreement, each of which shall be
deemed to be an original.
58. This Agreement applies to and is binding upon the
Parties and their successors and.assigns. Each undersigned
representative of the Parties certifies that he or she is fully
authorized to enter into this agreement and to execute and to
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fully legally bind such party to this Agreement. In the event
that FPL transfers title or possession of the Right-of-Way, FPL
shall notify EPA prior to any such transfer and shall continue to
be bound by all terms and conditions of this Agreement unless the
United States agrees otherwise and modifies this Agreement
accordingly.
XVIII. EFFECTIVE DATE
59. The effective date of this Agreement is the date
on which it is fully executed by the Parties. After this
Agreement becomes effective; any breach of any provision of this
Agreement shall not affect the validity or effect of this
Agreement and the party in breach of any provision shall be
subject to an action to enforce the terms of any such
provision(s).
XIX. AMENDMENT
60. This Agreement, or any part thereof, may be
amended by mutual written agreement between the parties.
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BY FLORIDA POWER & LIGHT COMPANY:
+ji&ZGxuunuk
Assistant Secretary And
Director Of Land Management
Its
July 1, 1992
DATE
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IT IS SO AGREED BY THE UNITED STATES
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
GREER C. TIDWELL
Regional Administrator
Date
FRANK S. NEY
Associate Regional Counsel
Date
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