»
OSWER # 9834.4-A
A\
[ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20460
25068
OFFICE Of
RCf MF.MT AND
MONIfQHING
MEMORANDUM
SUBJECT: Transmittal of Guidance on Use and Enforcement of
CERCLA Information Requests and Administrative
Subpoenas
FROM: Thomas L. Adams , Jr. «J^v«vw^*j V .
Assistant Administrator
TO: Regional Administrators, Regions I - X
Regional counsel, Regions I - X
Directors, Waste Management Divisions, Regions I - X
With this memorandum, I am transmitting guidance on the use
and enforcement of EPA's information gathering authorities under
CERCLA §S I04(e) and 122(e)(3)(B). The attached guidance
document replaces existing guidance entitled, "Policy on
Enforcing Information Requests in-Hazardous Waste Cases," dated
September 10, 1984, to the extent that the earlier guidance
addressed information gathering under CERCLA Sl04(e).
Attachment
cc: Bruce Diamond, Director, Office of Waste Programs
Enforcement
Lloyd Guerci, Director, CERCLA Enforcement Division,
Office of Waste Programs Enforcement
FranJc Russo, Chief, compliance Branch, Office of Waste
programs Enforcement
Robert J. Mason, Acting Chief, Guidance and Oversight
Branch, Office of Waste Programs Enforcement
Lisa K. Friedman, Associate General Counsel, office of
General Counsel
David Buente, chief, Environmental Enforcement section,
Department of Justice
Nancy Firestone, Deputy Chief, Environmental Enforcement
Section, Department of Justice
Office of Regional Counsel Hazardous Waste Branch Chiefs,
Regions I - X
Clem Rastatter, Executive Assistant, Office of Emergency and
Remedial Response
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Guidance on Use and Enforcement of CERGLA
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
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. 12
V, SERVICE OF INFORMATION REQUESTS AND SUBPOENAS 13
VI. GENERAL DUE PROCESS CONSIDERATIONS IN INVESTIGATIVE
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
l. Jurisdiction and venue 23
2. Procedures for Enforcing subpoenas 24
c. Referrals ,....,,.......,,,, 25
VIII. DISCLAIMER 26
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rA\
NMfe | UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
**&/ WASHINGTON, D.C. 20460
W 25(968
COMPUANCI: MGNtTORIKG
MEMORANDUM
SUBJECT: Guidance on Use and Enforcement of CERCLA
Information Requests and Administrative Subpoenas
FROM: Thomas L. Adams, Jr. ^^^^ w.
Assistant ^^^1^
TO: Regional Administrators, Regions I - X"
' ' Regional 'counsel. Regions I - X . .
Directors, Waste Management Divisions, Regions I - X
I. INTRODUCTION
The Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA),.as.amended' by the Superfund
Amendments and Reauthorization Act of 1986 (SARA>, provides EPA
with several methods of obtaining various types of information
* » *
from a wide range of entities *. section I04(e), entitled
"information Gathering and Access," grants EPA the authority to
issue "information requests." Section 122(e)(3)(8)," entitled,
, » > *
"Collection of Information.," authorizes the use of
administrative subpoenas. These information-gathering tools and
' * *
enforcement powers represent a significant improvement in EPA's
% * This guidance focuses solely on information
gathering in the context of civil enforcement, in
instances where a criminal enforcement action is contemplated or
pending, Regional personnel .should consult with OECM - Office of
Criminal Enforcement, before proceeding with information
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
of the information-gathering tools under CERCLA §§104(e) and
I22(e)(3)(B), and 2J 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 _Informatipn-Gatherincr Aujihorities ~:
Prior to the enactment of SARA, information regarding
hazardous waste sites was gathered, primarily under the pre-SARA
provisions of CERCLA si04(e) and RCRA §3007. Section I04(e)(5),
authorizing administrative orders, civil actions and penalties
of up to $25,000 for each day of noncompliance, now eliminates
the neer1 to incorporate RCRA §3007 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, 1984, to the extent
that the previous guidance addressed information gathering under
CERCLA S104le>.
3 CERCLA Si09(a)(5), as amended, also authorizes EPA
to v-* a'tainistrative subpoenas "in conjunction with
hearings" on Class I administrative penalties. This guidance
does not specifically address the use of administrative
subpoenas in that context.
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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
Sll(c) of the Toxic Substances Control Act (TSCA), 15 U.S.C,
2610(c). s
B. Administrative Information-Gathering Distinguished from
. Discovery
As an initial matter, a distinction must be drawn between
an investigation conducted by an administrative agency such as
EPA and the information-gathering that commonly takes place
during the discovery phase of a civil action. An administrative
investigation is related in some way to implementation of an
agency's 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," OKM, September 10, 1984.
5 The use of TSCA §11(c) subpoena authority was
recently upheld by Uie 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 statutes, specifically the Clean Water Act, may
later prove to be a more appropriate means of addressing the
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 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.. :
IncT_, 637 F. Supp. 71
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Tn Ik. ft*. y^- Morion 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 most interested, in not doing so. Because
judicial power is reluctant if not unable to summon
evidence until it is shown to be relevant to issues
in litigation, it does not follow that an administrative
agency charged with seeing that the laws are enforced
may not have and exercise powers of original inquiry.
It has a power of inquisition, if one chooses to call
it that, which is not derived from the judicial
function. It is more analogous to the Grand Jury,
which does not depend on a case or controversy for
power to get evidence iut can investigate merely on
suspicion that the law is being violated, or even
just because it wants assurance that it is not.
Limitations on this information seeking power do exist.
However, the limitations themselves are narrow in scope.
Of .course a governmental investigation . . . may be of
such a sweeping nature and so unrelated to the matter
properly under inquiry as to exceed the investigatory
power... But it is sufficient if the inquiry is
within the authority of the agency, the demand is not
too indefinite and the information sought is
reasonably relevant, li. at 652 {citations omitted).
Thus, there are three basic parameters which are relevant to a
request for information or an administrative subpoena. It must
be:
8{...continued)
also, by their terms, inapplicable. For example, Fed.R.Civ.P.
26 (General Provisions Governing Discovery) contemplates an
ongoing oversight role of the court, in administrative
information gathering, the court has no role unless specifically
petitioned by the government to enforce a subpoena or
information request. Sag, Belle Fotirche Pipeline Co. v. U.S,
751 F.2d 332, 334 (10th Cir. 1984), citing Reisman v. Caplin.
375 U.S. 440, 84 S.Ct. 508, 11 L.Ed.2d 459 (1964).
L*->
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l. 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 TOOLS
On January 23, 1987, the President signed Executive order
12580 delegating information-gathering authority in SS 104(e)
and 122 to the Administrator of EPA. 10 This authority was, in
turn, delegated from the Administrator to the Assistant
Administrator for solid Waste and Emergency Response, the
Assistant Administrator for Enforcement and Compliance
Monitoring and the Regional Administrators by Delegation 14-6,-
11 Inspect ions, 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 subf inas
is limited by the requirement that they first consult with the
Assistant Administrator for Enforcement and compliance
9 See, e.g.r 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 of the agency's legitimate
inquiry and the public interest.
10 The Administrator's authority, however, is limited
with regard to federal facilities. (See Sections
3(j)U) and 3(b)(l) of Executive Order 12580.)
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Monitoring or his/her designee. . On November 19, 1987, the
Assistant Administrator for Enforcement and compliance
Monitoring redelegated his consultation autnority under
Delegation 14-6 to the Associate Enforcement Counsel for Waste.
IV. SCOPEAND TIMING QF INFORMATION GATHERING PROCEDURES
A. Information Requests
The scope of investigation authorized by CERCLA si04(e)
is broad. CERCLA $104(e)(2), as amended by SARA, provides:
Any [duly authorized] officer, employee, or represen-
tative [of the President]... may require any persop
who has or mayhave information relevant to any of
the following to furnish, upon reasonable notice,
information or documents relating to such matter:
(A) The identification, nature, and quantity of
! -materials which have been or are generr.tec", feated-,
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, property, or
location to inspect and copy all documents or records
relating to such matters or tii) 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(eMIK provides:
The authority of this subsection may be exercised
only for the purposes of determining the need for
response, or choosing or talcing any response action
under this title, or otherwise enforcing the
provisic--. of this title. (Emphasis added.)
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initial attempts to gather information about a given site
commonly will be through the use of information requests issued
under CERCLA sl04(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 PRP to the site;
-business records relating to the site, including,
-but not limited to, manifests, invoices, and record
booJcs ;
-any data or reports regarding environmental monitoring
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
tfte Agency is unable to assess financial viability
effectively through review of publicly available
11 For further information on notice letters, their
timing, and content, see "interim Guidance on Notice
Letters, Negotiations and information Exchange,* 53 Fed. Reg.
5298 (Feb. 23, 1988).
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data, 12 information relating to ability to pay for or
perform a cleanup; i3,
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 coverage and the need to avoid
requiring an insured to construe the coverage of its policies.
If a request is overly specific, and a party (the insured) fails
to identify insurance that may afford coverage regarding a
response action, the insurer may attempt to use that failure to
identify the policy in the information request to avoid payment
12 The ability to obtain financial information about a;
- PRP from a source other than the PEP itself is
limited by the Right to Financial Privacy Act, 12 U.S.C. 3401,
fitt 323., which limits Government access to a customer's
financial records at a financial institution in accordance with
the provisions of the Act. In most cases, it will not be
necessary to seek information about a PRP's assets from a
financial institution. That information can be obtained from a
PRP as a condition of negotiation if the PRP raises ability to
pay as an issue. If circumstances arise where a Region believes
that it is necessary to obtain information from a financial
institution, it should first consult with Headquarters.
13 Under CERCLA si04(e)(2)(c)f EPA now has explicit
authority to request information relating to the
ability of a person to pay for or perform a cleanup. Before it
was amended, CERCIA S104 authorized EPA simply to obtain
"information relating to [hazardous] substances." EPA typically
construed tills language to include all information that EPA
considered relevant to, any aspect of enforcement. In O.s. v.
CJiaxJ-eg Qflorge T"lCfci*y* Co. , 624 F. Supp. 1185 (D. Mass. ), af f *d
OH fiklifir. grounds. 823 F.2d 685 (1st Cir, 1987), the court took
issue with EPA's broad interpretation of "information relating
to [hazardous] substances" and denied EPA's request for
information relating to a defendant's ability to pay for or
perform a cleanup. The court held that information about assets
and insurance cc raje "in no way informs EPA about the
hazardous substances involved." 624 F. Supp. at 1188. This
decision is no longer supported in light of CERCLA $104(e)(2)(c).
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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 the extent of coverage of insurance policies. The ultimate
result might be that potentially fewer funds would be available
for a response action, and the potential for settlement
diminished.
Hence, requests for information about insurance policies
should be as neutral as possible. Rather than seeking
information about discrete periods of time during which it is
t
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 casualty 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 has not compromised any potential insurance
coverage should it ultimately be liable for any response costs.
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In the alternative, the insured may always be given the option
of providing copies of the .policies themselves. A similar,
general request about .directors'; and officers' insurance may
also b° made ,in situations where personal liability of a
corporation's directors or officers is or will be at issue.
Information requests should include a- brief identification
and description of the site, a citation to the statutory
authority, and a general statement setting forth the purpose of
the request and its relation to the overall case.. An
information request should also state the date by which the
recipient must respond or adequately justify his inability to
respond. This due date should reasonably reflect the type and
volume of information that the agency anticipates will be
responsive to the request. Thirty.days is .usually adequate. In
addition, the information request should state that the
respondent may have an opportunity for consultation with the
Agency, and that failure to respond may give rise to a F" Uty.
An information request should also require, the recipient to
indicate the types of files searched in response to the request,
and ask the recipient to submit an affidavit describing his
search efforts if the search does not disclose any of the
information sought. *f *
** Previous guidance, "Policy on Enforcing Information
Requests in Hazardous Waste cases", September 10,
1984, suggested that an affidavit be requested in a second,
"reminder" letter; However, by including an affidavit request
with a request .for a description of the types of files searched
in the initial information request, one can more quickly
(continued...)
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OSWER DIRECTI'/E f 9834.44
12
A model information request, largely developed by Region I,
is attached as Attachment 1.
B. Administrative S"b.poenflS
Section 122(e)(3)(B) gives EPA the power to issue
administrative subpoenas requiring the attendance and testimony
of witnesses (referred to as a subpoena ad, test if icanduql and
the production of documents {referred to as a subpoena duces
tfldiffl). Such subpoenas may be issued as is "necessary and
appropriate1* for performing a non-binding preliminary allocation
of responsibility (NBAR) "or for otherwise implementing" CERCLA
Section 122.
Since the language of 5122 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 NBAR. 15 Instead, an administrative subpoena may be used
once the Agency has begun to implement the settlement process
under §122 (e.g. through initiation of informal discussions or
14 <...continued)
determine which information requests should be followed up with
an enforcement action.
15 Nonetheless, the factors that may be considered when
preparing an NBAR are a useful outline of the types
of information that may be reached, at a minimum, with an
administrative subpoena. These factors, are set forth in
$l22(e)(3) and include: "volume and toxicity of wastes, strength
of the evidence, ability to pay, litigative risks, public
interest considerations, precedential value, and inequities and
aggravating factors." *
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formal negotiations with some or all affected PRPs, 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
\
the authority in §122te>(3MB). In particular, it is important
4
to be able to show how the subpoena's issuance either furthers
the NBAR process or meets the criteria of "otherwise
implementing this section."
Although there is no statutory prohibition against doing so,
a subpoena generally should not be used in the first instance to
gather information. Rather, a §l04(e) information request is
the preferred method of obtaining information.
V, SERVICE OF INFORMATION REQUESTS AND SUSPOEMAS
Information request letters are a formal means of obtaining
information, and consequently should be served by registered or
certified mail, return receipt requested. (Note that \.-. i
serving any document by registered or certified mail, post
office box addresses should be avoided.)
Service of a subpoena can be effectuated in a number of
ways depending upon the circumstances of the investigation.
Whenever possible, personal service is preferable, especially
when it is liJcely 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
«
requested. Regardless of the method of service, the correct
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person must be served. Service upon a domestic corporation, or
upon a partnership or 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 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 off ice,-or any other location
considered appropriate under the circumstances.
VI. GEN£RAL DUE PROCESS CONSIDERATIONS IN INVESTIGATIVE
A. Agency Adjudication^ ajrd 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 §3008(a) of RCRA. Before
the Agency may issue a compliance order or assess civil
i
penalties under RCRA §3008(a), the person against whom the
Agency is talcing action is accorded the procedural rights set
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15
forth in 40 CFR Part 22. 16 These rights are similar to those
of a defendant in a civil trial and include the right to notice,
to submit evidence, and to cross-examine.
in contrast, when an agency issues an administrative
subpoena pursuant to §122(e) (3) (B) , its purpose is only to
investigate or gather information, and "it is not necessary that
the full panoply of judicial procedures be used." Hannah vv,
Larche . 363 U.S. 420, 442 (1960).
[W]hen. . .agencies are conducting nonadjudicative, fact-
finding investigations, rights such as apprisal,
confrontation, or cross-examination generally do not
obtain. Id. at 446,
Despite this limitation, a witness may nonetheless invoke .
his Fifth Amendment privilege as to particular questions
presenting a threat of self-incrindnation. U. £> v . Malnifr f 489
F.2d 682, 685 (5th Cir. 1974).
B. 5.0.16 QJf ^fitness' Counsel at
..
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
16 Part 22 procedures f^o not apply to compliance orders
issued under CERCLA si04(e){5). Due process is
assured under S104(e)(5) by the statutory requirements that the
respondent have an opportunity to confer with the Agency prior
to issuance of the order (discussed below) and that orders be
enforced by commencing a civil action. Similarly, Part 22
procedures do not apply to the assessment of penalties under
Sl04(e) as that can only be accomplished by commencing a civil
action.
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agency proceeding at which he is compelled to appear,
"representation" under the APA "varies in meaning depending upon
the nature of the function being exercised." F.c.c. v.
Schreiberf 329 F.2d 517,526 (9th 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 investigation
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.]
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. ENFORCEMENT OF IUFORMATIQN REQUESTS AMD SUBPOENAS
A. Information Requests
1. Initial Steps
When tine deadline for responding to an information request
has passed, a reminder letter should be sent to the unresponsive
information request recipient, l) informing the recipient that
S104{e) provides for a penalty of up to $25,000 per day for
noneompliance, and 2) stating the date after which a civil
judicial or administrative enforcement action may be initiated.
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The remind»r letter should also provide an opportunity for
consultation. 17 This will fulfill the requirement of
§104(e)(5)(AJ if enforcement by administrative order is
contemplated and should also fulfill any due. process
requirements for record review. (See Section VILA.4. , "scope
of Judicial-Review," below.) Whenever a recipient takes
advantage of an opportunity for consultation, the issuing
official should send a letter to the recipient summarizing any
contacts with the recipient, and stating EPA*s resolution of any
objections. If there is no response or if the response to a
request is still unsatisfactory after the reminder letter
deadline has passed, EPA may compel compliance wi'.n the request
through either an administrative or judicial action.
2. Administrative Orders to Compel Compliance
Under CERCLA S104(e)(5)(A), EPA can issue an administrative
order directing compliance with an 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 respondeuc that penalties
17 The statute leaves the decision whether to provide
notice and opportunity for consultation to the
discretion of t , Agency. However, the Agency believes that it
is in the best interests of all concerned to provide an
opportunity for consultation whenever possible, particularly
prior to the issuance of an administrative order.
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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, ^
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 Sl04(e)(5)(B). 19 in that civil action, EPA
can seek injunctive relief and/or civil penalties not to exceed
$25,000 per day for each day of noncompliance.
A referral to DOJ for an inadequate response or no response
18 Normally, the consu-1-tation 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 narrow
scope of the order, it generally will not be productive to delay
the order and offer another opportunity for consultatAC:
However, if it is likely that additional discussion will lead
directly to compliance, and the extra delay does not result in
an unreasonable threat to human health or the environment, the
Region may provide another opportunity for consultation prior to
issuance of the order.
19 Section 104(eH5MB) states:
The President may ask the Attorney General
commence a civil action to compel compliance
with a request g_r_ qrdei; r^ferrea 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. CharlesGeorge Trucking Co., No. 85-2463-WD
(1st Cir. March 31, 1988). See also, U.S. v. Northslde Sanitary
Landfill. Inc.. NO. IP 88-172-C, (S.D. Ind. April 12, 1988).
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19
at all should include all evidence needed to support the case.
This includes evidence or findings that:
(15 EPA has a "reasonable basis to believe that there may
be a release or threat of a release of a hazardous substance,
pollutant or contaminant" at a given site or vessel;
(2) the information request was issued for the purpose of
determining the need for a response or choosing or taking any
response action under CERCLA Title I, or otherwise enforcing
CERCLA Title I, with respect to the site or vessel;
(3) the respondent was requested to provide information
relating to one or more of the three categories of information
identified in Sl04(e)(2)(A)-(C);
{4} respondent did not comply with the request in a timely
manner.
(5) where appropriate, respondent should pay a civil
penalty, recommended at $ . (See Section VII.A.5.,
"Penalties," below.)
In addition, the referral should 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-by-case basis. ,
Where there is r <;o . to believe that an administrative order
win not bring immediate compliance, a civil action should be
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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
' " f,'
' may serve little purpose. While an administrative order .
typically can be issued within a shorter period of time than a
i, > - "'" ' ' --"-
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 .will be.through the
referral and filing of a civil judicial action.
* *.
4. Scopeof 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."
$104(e)(5)(B)(ii). 20 This clearly limited review should not
serve as an opportunity to review other aspects of the case,
20 Judicial review is not thusly limited when the
' amount of the penalty is the issue before the court.
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21
such as remedy selection or liability. 21 (£!_. ILg- y- Western,
Processincf. Ine, f No. C83-252M (W.D. Wash. Fe&ruary 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 pages 6 and 19, above, the Government may argue that
judicial review of the administrative order should be limited to
an administrative record. This argument is based upon the
language in §104(eM5HB) that provides for judicial review
under the arbitrary and capricious standard. The success of
obtaining record review hinges on providing and documenting
adequate procedural due process administratively. 22
5. Penalties
Under $104(e)(5)(B)(ii) 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 ir. ^ covery
once an enforcement action is initiated. Discovery gene^ ,ly is
restricted in enforcement proceedings involving administrative
subpoenas (see n. 27, injim) and similarly, should be restricted
in actions brought under §104(e) of CERCLA. If discovery is
allowed at all in a given action, the Government's position is
that its scope should be limited to addressing the parameters
for administrative investigations noted on page 6.
22 It may also be possible to seeJc record review of
an information request without first issuing an
administrative order since CERCLA Sl04(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 Agency would first
have to provide sufficient procedural due process, including an
opportunity for consultation, and an administrative record would
have to be created reflecting the parameters and elements noted
on pages 6 and 19, above.
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22
with the initial information request or subsequent compliance
order. The question of whether to seek penalties may arise in
two situations: 1) where injunctive relief is sought to compel
the -respondent to answer the information request ana penalties
are sought in addition to injunctive relief, and 21 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: 1) 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 jn information request enforcement actions,
penalties can be assessed against a respondent even
if he eventually complies with the information request, see
e.g. U.S. V. LiviQla. 605 F. Supp. 96 (N.D. Ohio 1985}, U.S. v.
Charles George Trucking Co.. 823 F.2d 685 (1st Cir. 1987).
24 |«or gm information request to be enforceable, it
. mist conform to the basic parameters noted above on
page 6. Jtay issue of,the reasonableness of the information
request itself is subsumed by these parameters. T'ms, 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- -e.'y to an information request is presumptively
unreasonable, and the recipient of the request bears the.burden
of proving that noncompliance with that request is in fact reasonable,
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23
any willfulness or negligence associated with the respondent's
actions, "
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. 26
CERCLA §i22(e)(3)(B} states;
In the event of contumacy or failure or refusal
of any person to oibey any such subpoena, any district
court of the United States in which venue 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 office." CERCLA
Sll3(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 (19S7), 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 the propriety of an
administrative subpoena upon motion of a respondent. Belle
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 and force the Government to initiate an enforcement
action.
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24
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
Ted.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 that discovery is generally
inappropriate given the scope of the issues before the court. 27
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,
tout only where the defendant meets the "heavy burden
of showing extreme circumstances that would justify further
inquiry,..* tf.S. v. RFB Petroleum., Inc.. 703 F.2d 528, 533
(Temp. Emerg. Ct. App.} (.quoting U.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 solely to serve purposes outside
the purview of the jurisdiction of the issuing agency." NAlLtR.B.
v. Interstate Dress Carriers. 610 F.2d 99, 112 (3d Cir. 1979)
(emphasis added -.it it ions omitted), see also if,S. v. McGovern.
87 F.R.D. 590 (M.O. Pa. 1980), Lynn v. Biderman. 536 F.2d 820,
825 (9th Cir.) cer,t. denied fiuJz npm. alderman v. Hills. 429 U.S.
920 (1976).
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25
purpose andl 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 the court's
order may result in contempt proceedings against the respondent.
C. 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, 1988 memorandum from the Assistant Administrator 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 *r 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,
j ;' ''.''' - ""
and a draft order to accompany the petition. The memorandum of
'::- -J ' ' -
points and authorities should briefly set out the facts of the
n_- - "
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.
j -
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
, r* - ' .*
in the petition from a person with knowledge of those facts, and
any other relevant material which serves as the administrative
* * - '
record documenting the subpoena process.
VIII.
This memorandum and any internal procedures adopted for its
implementation are intended solely as guidance for em^lo es of
»'.,'."*""
the U.S. Environmental Protection Agency. They do not
constitute rulemaking by the Agency and may not be relied upon
* .
to create a right or a benefit, substantive or procedural,
enforceable at law or in equity, by any person. The Agency may
take action at variance with this memorandum or its internal
i mp l emen t i ng pr oc edur e s .
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MODEL Information request Attachment
CERTIFIED MAIL {OR DHL] [Note: No certified or express
RETURlj ffiCglPT REQUESTED mail to P.O. Boxes]
[DateJ
fPRP Name!
TPRP Address!
Re: Request for information Pursuant to Section 104 of
CERCLA [and Section 3007 of RCRA,] for fSite
in fSite location! hereinafter referred to as "the site"
Dear Sir or Madam:
The United States Environmental Protection Agency (EPA) is
currently investigating the source, extent and nature of the
release or threatened release of hazardous substances,
pollutants or contaminants, or hazardous wastes on or about the
fSite ffaiael in fsite Location! (the Site). This investigation
requires inquiry into the identification, nature, and 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 ;-he Si* a. 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 Se'ction 104 of the Comprehensive
Environmental Response, Compensation, and Liability Act
(CERCLA), 42 U.S.C. § 9604, as amended, [and Section 3007 of the
Resource Conservation and Recovery Act {RCRA) , 42 U.S.C. §
6927,] you are hereby requested to respond to the Information
Request set forth in Attachment A, attached hereto.
Compliance with the Information Request set forth in
Attachment A is mandatory. Failure to respond fully and
truthfully to the information Request within r insert reasonable
nupber of davs to respond r spel,! ou,t_ number arid put number in
parenttipqfls , e^_q.^. -thirty (30) 1 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 ($^5,000> for
each day of continued non-compliance. Please be further advised
that provision of false, fictitious, or fraudulent statements or
representations may subject you to criminal penalties under 18
U.S.C. s 1001 or Section 3008(d) of RCRA.
This Informat1 -? request is not subject to the approval
requirements of the Paperwork Reduction Act of 1980, 44 U.S.C.
3501, et seq.
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your response to this Information Request should be mailed to:
U.S. Environmental Protection Agency
[Name 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
within 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 [Name of ORC Person! of the
Office of Regional Counsel at (XXX) [XXX-XXXX]. Technical
questions should be directed to [Name of Program Person.), at the
above address, or at (XXX) [XXX-XXXX],
ThanJc you for your cooperation in this matter.
Sincerejy,
[Name]
Waste Management Division
Attachment '
cc. rcase,_attopiQy_ name! f Office of Regional counsel
rCaseL pgoqcam pejrson jiame], Waste Management Diviri-^
[Name], Director, Office of Waste Programs Enforcemeuc
[Name], Director, Office of Emergency and Remedial Response
TStatg prQorfljn staff person name, as appropriate!
t State_ Assistant Attorney General, as appropriate 1
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[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
which it corresponds.
3, If information or documents not known or not available to
you as of the date of submission of a response to this
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 Sections 104(e)(7HE) and
, 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 tH« extent, and only by means of the procedures set
forth in statutes and regulation set forth above. If no such
claim accoiipanies 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-
Definitions
The following definitions shall apply to the following words as
they appear in this Attachment A:
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't I
l. 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. . .
A * " "
2. The term "person" shall have the same definition as in
Section 101(21) of CERCLA Tan 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 t[Name of
1 owner(s)/operator(sU 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,11 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 wasted shall have the same definition as
that contained in section 1004(27) of RCRA.
8. The term "materials11 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(list
specific jftM»j|ijgaiLfl °^ concern at Site) .rl
,9. The term "hazardous material" sha1.! 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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. j
n. 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.),
organization, if any, and a brief description of its business.
13, The term "identify" means, with respect to a document, to
provide its customary business description, its date, its number
if any (invoice or purchase order number), the identity of the
author, addresser, addressee and/or recipient, and the 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. S 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, ler,
correspondence, 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 intraoffice communications,
photostat: or other copy of any documents, microfilm or other
film record, any photograph, sound recording on any type of
device, arty punch card, disc or disc pack; any tape or other
type of memory generally associated with computers and data
processing (together with the programming 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) attachments to or enclosures with
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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.
' . : C'
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 CFR
Part 300 or 40 CFR Parts 260 - 280, in which case t-.hj s*atutory
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.
t
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 veil as intangible property.
QUESTIONS
' [QUESTIONS FOR ALL PRPS]
#. Identify the person(s) answering these Questions on behalf
of Respondent. .
t. For each and every Question contained herein, identify all
persons consulted in the preparation of the answer.
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t. 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 assigned 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,
In addition:
a.. Describe all precautions that you took against
foreseeable acts or omissions of any such third parties
{including, but not limited to insert names if known, e.g.. of
prio_r_ owners, etc.1 and the consequences that could foreseeably
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: fqames_of persons
suspected to be involved with the Site, e,_g^,
t. 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
b. Describe the portion of the Site owned, operated, leased
by each such person and state che 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
f. 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
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.
#. 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.
f. 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, [and, list
specific documents vou want II
f. 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 '.v, stigations;
c. Describe the purpose of the investigations;
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di State the datss 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
[ list materials or items of concern,, e.g., Tqg. of \$t} pacV^I to
fligt PRgsl. In addition:
a. State the dates on which each such person may have
given, sold, transferred, or delivered such material;
b. Describe the materials or items that may have been
given, sold, transferred, or delivered, including type of
material, quantity, chemical content, physical state, quantity
by volume and weight, and other characteristics.
c. Describe the intended purpose of each sale, transfer, or
delivery ojf 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.
[OWNIR/OPEKATOR QUESTIONS]
f. 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.
t. 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.
f. Did you acquire the facility by inheritance or bequest?
Describe all facts on which you base the answer to this
question.
t. 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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a. Whan such releases occurred or may occur.
b. How the releases occurred or may occur.
- r *
c. Wliat 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 each
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.
f. 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 are
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. BOUT and when such pipes were replaced, repaired, or
otherwise changed.
. t 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 may
have been given, sold, transferred, or delivered;
e. Describe the nature, including the chemical content,
characteristics, physical state (e.g., solid, liquid) and
quantity (volume and weight) of all [describe what was found at
the Site, e.g., "lab packs'1] and describe all tests, 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., lab
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 TRANSPORTi-Ra j
f. Identify all persons, including you, who may have
transported materials to the Site. Such persons will
hereinafter be referred to as "Transporters.11
#. For each -v.rih Transporter, state whether it accepted
materials including municipal solid waste from a municipality or
arranged with a municipality by contract or otherwise to accept
materials from any source. If so, describe the nature, quantity
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and source of all materials accepted and transported to the
site. ....
#. for each such Transporter, further identify:
i
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).
4 ...
c. Whether any of the hazardous materials identified in
subpart b exhibit any of the characteristics of a ha2ardous
waste identified in 40 CFR S261 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. r
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. ZZMt 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 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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o. WMMre the persons identified in g. , above, intended to
have such hazardous materials transported and all documents of
other information (oral or writtsn) -svidencing 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 or disposal).
r. The final disposition of each of the hazardous materials
brought to the Site.
s. The measures taJcen 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]
f. Identify all persons, including you, who may have:
a. disposed of or treated materials at the Site;
b. 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.11
t. For*each ana every instance in which a generator performed
any of tlNt 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
municipal solid waste,] to the Site.
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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 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 D.
h. * [Insert additional specialized questions to determine
whether any hazardous substances 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 muaiclpal solid
waste involved in any such arrangement.]
k. Identify the owner of the .hazardous materials involved
in each such 'arrangement.
l. 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 were to be disposed or tre?*ed
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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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 type, 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]
f. 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 rd?*-^
disposal site first became disposal site] through the p ent.
Specify the insurer, policy, effective dates, and state f^r
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 and [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
the 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
Respondent.
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#. Identify all persons who may be responsible for the
liabilities of Respondent arising front or relating to the
release or threatened release of hazardous substances at the
Site, including but not.limited to successors and individuals.
f. 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 PRF questions, see ORC case attorney.]
[FINANCIAL BACKGROUND QUESTIONS-FOR PARTNERSHIP PRPS]
f. Identify all partners comprising [Name of Partnership! and
the nature of their partnership interests.
t. [For additional Partnership PRP questions,, see ORC case
attorney.] . - '. ,
[FINANCIAL BACKGROUND QUESTIONS FOR TRUST PRPS],
f. Identify all trustees and all beneficiaries of the [Name
of Trust]. * . .
t. [For additional Trust PRP questions see ORC case
attorney.]
, - [CONCLUDING QUESTIONS FOR ALL RPS]
t. 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 la your possession, custody or control, then identify
the persons from whom such information or documents may be
obtained. ' - -
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Attachment 2
BEFORE THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Address:
IK THE MATTER OF: I No.
SUBPOENA DUCES TECUM AND
SUBPOENA AD TESTIFICANDUM
TO: .
, RESPONDENTS) :
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 place and time.
TIMS 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 IN ATTENDANCE until expressly
excused by the attorneyCs) 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(SJ.
NONCOMPLIANCE WITH THIS SUBPOEIIk KAY 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}
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Attachment 2
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
_____,
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF
Attachment 3
IN THE MATTER OF:
UNITED STATES Of AMERICA, Petitioner
v.
-- i
Respondent
MISC. NO.
PETITION FOR ENFORCEMENT OF AN ADMINISTRATIVE SUBPOENA
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 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?
l. The Court has jurisdiction over this matter pursuant to
28 U.S.C., 151331 and 1345, and 42 U.S.C. §9622(e) (3HB) 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 re
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. . -- 2
3., Th* Respondent, [- e is [short description,
e.g. "former owner of a waste transporting and disposal business."
Be sure to identify as an owner or corporation. ] :'.
4. section l22(e.)(3HB) of CERCLA^ as amended, 42 U.S.C.
t
9622(e)(3)(B), grants the President the authority to issue
administrative subpoenas to gather information necessary,to
implement §122 (Settlements). Such 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 Administrator 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, Suh-oenas and
Entry for Response," signed September 13, 1987. (Attache^;
6. In conjunction with the investigation at [site], and
pursuant to Sl22{e)(3>(B) of CERCLA, as amended, 42 u.S.C.
9622(e)(3)(B), Petitioner issued an administrative subpoena on
ilk
[date], directing the Respondent to [provide certain information.]
The subpoena is attached and incorporated herein as Exhibit A. An
affidavit 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.]
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[8. By letter dated , , Petitioner denied
Respondent'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 testifyj 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. mis Court render such other and further relief ,as is
just and proper.
Dated: Respectfully submitted,
Attorney for
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