983541-1
MODEL LITIGATION REPORT
CERCIA Ji 106 and 107 and RCRA a 7D03 Actions
This _ guidance and any internal procedures adopted for its*
implementation are intended solely as guidance for"employees of
the U.S. Environmental Protection - Agency, Such guidance and
procedures do not constitute rulemaking by the Agency and may not
be relied upon to/ create a right or benefit, ' substantive, or
procedural, enforceable at law or in equity,'by any person. The
Agency .may take action at variance, with , this guidance and its
internal implementing procedures. .' ,.
-------
\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
/ WASHINGTON, DC 20460
JUN21I96S s 9835.1
. MEMORANDUM . ' _ -
SUBJECT: Model Litigation Report for CERCLA' Sections 106
and 107 and RCRA Section 7003
f
FROM: . Edward E. Reich X^^^^S /
Acting Assistant VoUUAi*trator
TO: ' Regional Administrators
Regional Counsel
I have attached the Model Litigation Report for ,
CERCLA sections io« and 107 and RCRA Section 7003. This model
supplements previous Agency guidance entitled "Model Litigation
.Report Outline and Guidance" (OECM, August 23, 1S84), which
addressed the preparation of a litigation package under most
statutes, but excluded, aaeng others, packages to be prepared
for prosecution of civil judicial actions.under CERCIA
Sections 106 and 107 and RCRA Section 7003.
The model is intended for use in all civil judicial cases
referred to the Department of Justice-for-prosecution under .
CERCLA sections 106 and 107 and RCRA Section 7003. For those.
actions referred in conjunction with a settlement, a full
litigation report is not required. Rather, the Regions should
follow soon-to-be-issued guidance on pre-referral negotiations
and current policy governing the preparation of settlement
analyses accompanying the referral-of consent decrees. See. 52
l££* ^SS- 2034'("Interim CERCLA Settlement Policy"). This
docu.zr.ent also does not .specifically -address preparation, of
litigation reports for prosecution of penalty actions under
CERCLA Sections I06(b), 109 or 122(1), although many sections of
this document may be applicable to the preparation of such
litigation-reports. . '
-------
983541-1
I would like to express ay appreciation to you and to the
members of your staffs that have reviewed and commented on the
drafts of the document. If you have any questions regarding this
guidance,, please call Glenn tfnterrnrger or David Van Slyke of my
a\, 332-3050 . _
Attachment _
cct Jonathan 2. Cannon, Acting Assistant Administrator, OSWER
Donald A. Carr, Acting Assistant Attorney General, Land and
Natural Resources Division, Department of Justice
David T. Buente, Chief, EES, Department of Justice
Bruce M. Diamond, Director, OWPE ; -
Haste Management Division Directors, Regions Z-X
Regional Counsel Waste Branch Chiefs, Regions I-X
CERCLA Program Branch Chiefs, Regions I-X
OECM-Waste'. Attorneys
-------
f 835.1'
yiODEL LITIGATION REPORT -
. "- CERCIA j* 106 and 107 andI RCRA^i 7003 Actions
' . " . TABLE OF CONTENTS '
I.. Cover Page . . . . . . ....... . .-. ., ". . . -1
II. . Table of. Contents ....... ............. l
III. Synopsis of the Case (Executive Summary) .. . . . . . . 1
IV. _ significance of Referral . . . . . . . .2
V. ' .Statutory Bases- of.-Referral/Legal Theory of Case . . . ' . 2
VI..- 'Description and History of the Site .......... 3
! ' ''." ; .
VII. Status of Cleanup Process ......-.,"..,..,.. 4
viii. National Resource Damage.claims- -. .*... . . .7
IX. ' Prima Facie Case, Liability and Description of-
; Proposed Defendant(s) and Miscellaneous
Issues Regarding Liability and .Cost Recovery . . . . ..8
X. .Enforcement History/Contacts with Potential
' Defendants ,, -. ' . . . '. ... . . . .. . . . . . . '18-
XI. ' Cost Recovery . , . . . . . . ... . . . . .21
XII. Penalties and Punitive'-Damages ............. 25
'XIII. .Injunctive Relief . ;. ... ......"... ._ .... 26
XIV.' other Legal Issues .."..;....-..;............- 29',
y.T. Litigation/Settlement Strategy ....',..,...... 30
XVI. - Other Imminent Hazard Provisions '. . . . . .- « « « .'31
XVII. Witnesses/Litigation Support'. *.,.....,. 1 . . . . 33
" APPENDIX I.'-.RCRA § 7003 Prima Facie Case A-
-------
983 5.1 !-
' ' MODEL LITIGATIi M REPORT .
ERCLA it 106 and 107 and RCRA i 7003 Actions
' I. Cover
A. Region, statute (s) involved and judicial district.
B. Kane of defendant (s) toy category (e.g., owners, operators,
generators, transporters). ..
Include names, addresses and telephone numbers of all
proposed defendants in -an appendix to the litigation
report., -The list of all other potential defendants, with
- addresses and telephone numbers (where available) also
.should be attached as an addendum.
C. Name, address and EPA ID Number of facility or facilities.
, Include name, address and telephone number of ail
facilities/sites subject to the referral. ,
D. Regional contacts. . > '
Include names, addresses and telephone numbers of
regional program (technical) and legal contacts who
- prepared the report. '. _ '
E. stamp' date of. referral -on cover page. ' . -
II. Table of Contents ' > .
Include headings, subheadings and page numbers.
. , - *
III. Synopsis of the Case (Executflv** gywf»arv1
This should be a concise narrative summary statement .
briefly describing the site, the environmental problem,
cleanup/enforcement to date, projected future removal/--
The cover page should be in addition to the "Data Form"
prepared as -a one to two page fact sheet on the case.
-------
98 3 5.1 H
remedial efforts/ past/future response costs, the
proposed defendants and the relief sought.
IV. Significance tff Referral
Indicate if the case is part ;£ a special Agency . .
'"in-tiative or may present iss ''.mm. of national
significance. " _. _ _ . .
V. Statutory Bases of Referral/Legal Theory of Case
A. Applicable--statutes/
Reference .briefly all applicable Federal statutes by
/ . United States Code (U.S.C.) citation and by'section of
. ' . the Act. \ ' ,
B. 'Enforcement authority; jurisdiction and, venue-.
V* ' ,
Summarize briefly the enforcement authority and the
' jurisdiction and venue provisions of applicable statutes.
If there'is-reason to file the action in a district other -
than where the site is. located', note each available
- -- ' district and indicate the reasons for, filing there.
, (Hote that CERCIA §§ 106 and 113(b) contain specific
statements of available venues for CERCIA, actions, but' ..
that RCRA § 7003 and other imminent and substantial
endangerment causes of action.typically do not. Venue,
for" cases involving such counts may need to depend upon
the general Federal venue provisions' of 28 U.S.C.
I 1351.) - '
C. -Bankruptcy- petitions. '' .".-,.
If the,referral is for the filing of a bankruptcy claim,
describe the status of bankruptcy petition, including (1)
whether Chapter 7f 11,, or 13, (2) whether reorganization
plr.n filed, 'and (3) bar date for proof of claim. See.--'
"Guidance Regarding CERCLA.Enforcement Against Bankrupt
Parties11 (OECM, May 24, 1987); "Revised Hazardous Waste
Bankruptcy Guidance" (OECM, May 23, 1986). It the case
involves a PRP that has filed for bankruptcy, obtain and
attach schedule and any other court documents previously
filed. Discuss the significance of the bankruptcy to the
overall enforcement or cost recovery action and the
likelihood of obtaining the relief sought.
* /
NOTE; -It is - important to inform DOJ of a bankruptcy
filing 'or a pending bankruptcy-,action as soon as the
-------
'*.* gecrion begomes aware ..-of such action*. ,£&£., "Coordination -,
. of Agency Involvement in Bankruptcy Proceedings Affecting
RCRA or CERCLA Enforcement" (o£CM, June 10, 1988)
D. Cross-media coordination .'
State whether coordination 'cross media has occurred. .
Cross-media regional reviev should ensure that
consideration has been givan to including all available
causes of action pertaining to that particular
owner/operator and site.2 Discuss reasons' for including
or omitting cross-media 'claims. Where the secondary'
cause of.action' is minor, or where the case development
will -take an inordinate -amount of tine, the case should
be referred with the excluded secondary cause of action
clearly identified. 'However,, if the secondary cause of /
action is major, and if development will not unreasonably
'delay the referral, all such causes of action that are
' appropriate for filing' should generally be referred
together. This is.particularly true for endangerment"
cases that may be brought under several environmental
statutes simultaneously, if considerations such as
defenses, scope of liability and record'review warrant
' it. -See 'discussion regarding other imminent and'
. substantial endangerment provisions.of Federal statutes
; in Section XVI, below., . '
VI.. Description and History of'the Site .
A.'Site location (include here, or as attachments to Litigation
Report (e.g., in ROD), appropriate maps).' See
Section IX.A.2. (Page 10, infra).
S. Facility .processes - Describe the manufacturing, recycling'
' or disposal processes that are pertinent. , See ,'
Section IX.A.2. (Page 10, infra). ' .
c. Site description (photographs, diagrams, etc., as
appropriate). See Section IX.A.2. (Page 10, infra).
; 2 Review', of other potential causes of action .is
particularly ' important in cases involving RCRA
facilities .that were'in operation after November 19, 1980 and
facilities involving PCS contamination that may be regulated under
TSCA., > , In addition, review, and coordination is'critical under
those 'exceptional circumstances where -the Agency might , . .
contemplate' a "release' from liability under several statutes/media.
-------
. - D. "KPL status '\ ! ".
r
Include status of NPL listing.. If not on the NPL, state
status -of HRS 'scoring, whether the'site has been proposed
. , " . for the NPL and, if -so/ the date the site made, (or 'is .'
- expected to make) the f ir tl NPI, Include appropriate .
', federal Register cite(3). Also Indicate whether State, ' '
PRPs or citizens object to the proposed listing. '
E. General description of environmental problem posed by the
site.'; -.-..
VII. status of cleanup Pr9cess . ' . ''.'',
A. Cleanup activities by parties other than EPA prior to or
contemporaneous vith EPA involvement.
'" Describe, chronologically/ all response efforts"
undertaken at the site by PRPs, or state or local
governments, that have occurred prior to EPA involvement
or outside the scope of EPA oversight.
B..EPA cleanup'actions. ^ . ' /'
The referral must clearly identify each of the Agency
responses undertaken at 'the site, 'including each removal
and remedial operable uni--. 'and, if the action seeks to;
compel PRP response under § 106, the proposed response
action. ' if the site involves multiple operable units'
(and" multiple RI/FSs'and RD/RAs), discuss those- operable
'units that are'the subject-of the referral and generally
'"describe any planned investigations and studies. The'
< ' action must have been sanctioned (e.g., action memo*or
record of decision), there must be an adequate
administrative record for each response action decision,
and the actual action' must be documented.
1. Remove 1 s . ' \ ..'', '.;.'
" . a. identify and include;the" authorizing document
(Action Memo).
b. Describe the status of the Administrative Record
. supporting the 'removal decision. See Section'
. VII.c., below. .- -' . ' ' '
i ' '' ', i ' , >
c. , Describe the major community relations activities ',
relating to the removal, including any public
comment periods held', (how long, and what for) and
public meet ings held. Identify and. describe any,.'
, particular 'portion of the response action in which'
-------
9835,1 H
the public (including PRPs) has expressed interest.
Include responsiveness summaries published following
publir comment period.
d. Identify and describe each activity completed, when
those activities were completed and the status of -
activities underway or.ilanned, Include a
discussion of the entity that performed the activity
(e.g., name of contractor and primary contractor
contact) or the Agency personnel or office that
undertook the activity. Also Identify each osc that
worked on the project,
2. Remedial Investigation/Feasibility Study through^ Record
off Decision :
a'. ' Identify and describe' ench RI/FS completed, when
. those activities were completed and the status of
activities underway or planned. Include a
discussion of the entity that performed the RI/FS
(e.g.,. name of contractor (and any rsjor .
subcontractors) and primary contractor contact) or
. the Agency personnel or office that undertook the
activity. Also identify each RPM that worked on the
project. .
b. Describe the major community relations activities
relating to the each'-Ri/FS, including public comment
periods held (how long and what for) and public ' .
meetings held. Identify and describe any particular
portion of the RI/FS in which the public (including
PRPs) has expressed interest. Include -
responsiveness summaries published following any
public comment period.,
c. Discuss and include the authorizing document (Record
of Decision (ROD)). Discuss any significant issues
likely to be raised by defendants 'regarding adequacy
of the ROD. . _
d. Describe the status of the Administrative Record
supporting' the remedial decision. See Section
vii, c., below. ' -
e. ATSDR Evaluation - Discuss ATSDR evaluation and
any potential litigation problems raised by
differences between EPA and. ATSDR evaluations.
"Identify who at ATSDR did the evaluation.
" f. Posture of State regard:; ng ROD and1 Participation in
Settlement -' Describe any -contacts with the state
. . . ,, regarding concurrence in the remedy selected.
-------
9835,11-1
w «
Identify any EPA/State enforcement issues, such as
.whether .the. State has indicated interest in inter-
vening in any potential Federal action/settlement.
Attach pertinent correspondence.
g'.'. A risk assessment/endar - enaent assessment, typically
part of an RI/f!S, i» generally performed to support
; remedial action selection 'decisions. Such an
assessment will be the vehicle normally used to '
establish the imminent hazard portion of a CERCLA
§ 106 or RCRA § 7003 claim. Such ah assessment
should be undertaken pursuant to the Superfund
Public Health Evaluation .Manual (OSWER, October
x .1986). See also, "Risk Assessment Guidance for
Superfund Environmental Evaluation Manual"
(Interim Final, OSWER March i§89). Discussion of
the-risk assessment/endangerment assessment should
take place in conjunction with Sections IX and XIII,
below. . -
Appendix Two of the RCRA/CERCLA Case Management
Handbook (August 1984} contains a checklist of facts
necessary for. CERCLA imminent and substantial
ehdangerment eases.' Appendix X hereto discusses the
RCRA Section1 7003 prinia fj^cie case. -
/ ' '
h. Discuss and include any CERCLA § lll(k) Inspector
General audits of the RI/FS.
3. Remedial Aetlpnfs^
f t
a. .Identify and describe each operable unit RD/RA,3
when those activities were started and-(if
, . appropriate) completed, and the status of activities
' underway or planned. 'Include a discussion of the
entity that performedt each operable unit RD/RA
(e.g., name of contractor (U.S. Army'Corps of
Engineers, XYZ Environmental Removal, etc.}),
. _ important subcontractors and-primary contractor"
contacts) or the Agency, personnel or office that
undertook the activity. Also identify each RPM that <.
worked'on each operable unit.
b. Describe the major community relations activities . ,
during the RD/RA, notices of significant differences
3 While remedial design (RD) is technically a "removal"
'action under the terms of the, statute (S^ee- CERCLA
Sections 101(23) and 101(24))., it is Appropriate to discuss RD in
conjunction with remedial action, given the nature of the remedial
design and remedial action process. - .
-------
' V '-" , 98 3 5,1 I-/
.7 .
,(§ 117(c)), revisions to the ROD including public
continent periods held (how long and what for) and
public meetings'held.- Identify and describe any
particular portion of the response action in which
the public (including PRPs) 'has expressed' interest-
Include responsive; ass summaries published f-"1- ,_,
any public comment period.
c. Administrative Record For Each Removal/Operable Unit
Judicial review of the, adequacy .of response action
selection decisions in the context of CERCLA Section 106
and 107 actions will be based upon the administrative
record supporting the decision. Thus, it is essential
that the administrative record in support of all
pertinent'Agency response decisicrs be completed prior to
referral, gee. "National'Oil and Hazardous Substances
Contingency Plan? Proposed Rule." 53 Fed. Reg. 51394
(December 21, 198'8) ,* "Interim Guidance on Administrative
Records for Selection of CERCLA Response Actions11,
(Porter, March 1, 1989}i "Guidance on CERCLA Section 106
Judicial Actions (Reich/Porter 2/24/89). A list (index)
of all documents in the record must be included in the
referral package. The record itself must be compiled,
collated and stored in a 'secure location in the Region by
the time of the referral.4 Any outstanding issues
regarding compilation of the administrative record should
be noted and the plan for resolution of those issues
should.be identified..
VIII. NaturalResource Damage Clajmg
A. Identify potentially interested Federal and/or State
natural resource.trustees See, Memoranda of
Understanding with NOAA and Department of Interior,5 and
40 c.F.R. 300.72 - 300.74 (Trustees for Natural
Resources). ...
In-those exceptional circumstances where statute-of
limitations concerns indicate it may be appropriate
.(consistent with Agency guidance) to 'file as soon as possible, a
case can1be referred without an'index to or final compilation of
the administrative record. , . '
5 . These Memoranda'of Understanding .have been transmitted'
, to the Regional Counsel Branch. Chief*s under' .
separate cover.
-------
8
9835.1 VI
Summarize contacts, if any, 'With each trustee, and '
identify lead trustee representatives and telephone
numbers. ' ' ..
B. Briefly describe .natural resources that nay have been
affected by contamination at or-from the site as >
identified by the trustee agency. r
C. Status'of site survey/damage assessment by trustee(s).
Briefly describe status of trustees* efforts to
determine whether significant injury to natural
resources has. occurred at the site and, If
applicable, to evaluate measures to restore or
replace injured resources and assess damages ;
- resulting from the injury. . . ' ,
D. Participation by trustee(s) in selection-of'remedy or
negotiations. '
1 ' Briefly describe the role, if any, natural resources-
trustees have played in the RI/FS process,
- consideration given to trustee' comments in the ROD,
and the trustee's'1 participation or expressed level
' of.'interest .in participating in negotiations with
FRPs * . '" .
IX. Frina Facie Case,liability and Descriptionof Proposed
Defendantfs). and Miscellaneous Issues Regarding Liability
and Cost Recovery ' .
A. Prir.a Facie Case ' ' " ' , ^ ' ,
-There are three core elements6 -to the .prima facie case for!
cost recovery or injunctive relief under CERCLA:
" o There is a release or threat of release of a
hazardous substance; . '
o ' the release or threat of release is from a
facility;
. 6 -To complete a CERCIA uriaa facie case, additional -
elements, include: an imminent and substantial
endangerment (for CERCLA section-'106 injunctive relief), or that,
the government incurred response costs (for CERCLA Section 107
recovery). .-S**, Sections1 XI and XIII, infra.
-------
98354 H
the Defendant is in one of those categories of
liable parties in CERCLA fi 107(a).7
This section of the litigation report should focus on the
firrt two elements8 of the 'cor'' of the CERCLA crima fjieje
cast.: -
1. Release or threat of release of a hazardous
substance. '
Often, this element will be established by
on/off-site sampling showing that there has been an
actual release. Such sampling results may need to
be supplemented by an evaluation of the physical
conditions on .or around the site that suggest the
threat of release. A summary of each different
sampling program undertaken with regard to the, site
should be included here (along with a discussion of
any chain of custody or QA/QC issues/problems) and
any witnesses that may be needed to testify about
these procedures should be identified.
It is critical that all materials justifying'the
response activity be' identified and that each is
shown.to be a hazardous substance.9- Much .of this
' evidence should be gathered as part of the
Preliminary Assessment and Site Inspection (See 40
' It should be noted that, under particular
circumstances, a CERCLA Section 106-action may-lie
against parties other than those identified 'in Section 107. For
exair.ple, a Section 106 action may be available to compel a, state
cr local entity to remove unwarranted procedural barriers to site
cleanup,. See-, e.g., United Stages v. Town of Moreau. No. 88-CV-
934 (N.D.N.*. Sept. 6, 1988),
8 As noted in Section XI, 'infra (See, footnote 11 and
accompanying text), the evidence to establish these
first two elements should be based on documents in the
administrative record.
9 A list of substances that are hazardous substances
under CERCLA is contained in 40 C.F.R. Part 302. That
regulation designates under, CERCLA I 102(a) those substances in
the statutes referred to in CERCLA Section 101(14). It should
also be noted that a RCRA solid waste, as defined in 40 C.F.R.
261.2, which is,not excluded from regulation as a hazardous waste
under 40 C.F.R. 261,4(b), is a hazardous substance under CERCLA
j 101(14) (as well as a hazardous waste under RCRA) if it exhibits
'any of the characteristics identified in 40'C.F.R. 261.20 through
261.24.
-------
Q07r 1 J_J
10 . V«*/r * 1- /
C.F.R. i 300.64,' 40 C.F.R. | 300.66 and CERCLA
104(b)J and in the RI/FS (40 C.F.R. S 300.68}.
2. From-a facility.
CERCLA § 101(9} describes in broad terms what is
included in ^he defir\tion of a "facility."
Descries tJ-.s evidenc. /indicating that a "facility."
exists. -. -
When the site is on or proposed for NPL listing, one
roust be conscious of the manner the facility is
defined in the litigation vis-a-vis the parallel
discussion of the "facility" in the NPL listing.
Any deviation from the NPL listing should be
discussed.. : ' ' .
If the proposed litigation involves multiple sites
or a remote sites theory, discuss each site/facility
and the theory of liability with regard to each
site.' In those discussions, describe, as
appropriate, the impact of multiple sites on the
allocation of costs and the allocation of harm.
The next section of the litigation report should focus on the
third core element of the nriaa facie case liability of the
proposed defendants. ... !
8. Liability ajjd Description 'of Proposed Defendants
Much of the basis for the liability case against all PRPs
will be established during the EPA PRP search. Procedures for
conducting PRP searches and the type of information that
should be obtained are included in '!Potentially Responsible
Party Search Manual" (OSWER Directive 9834.6, August 19S7),
Pertinent information also may be contained in responses to
CERCLA f 104(e)/RCRA i 3007 letters and CERCLA f 122(e)
subpoenas. ' ' ,
As a general matter, the litigation report should '
describe the basis for'asserting'liability against each
proposed defendant and explain why EPA does not propose to sue
certain potentially responsible parties at this time.
However, the complete package of information described below
in Sections B.I., B.2. and B.3. is not required at this time
for those PRPs EPA does not propose to sue as a result of this
referral, in addition, some of the information required below
may be available in the PRP Search Report for the site, which
should be included as an attachment to the litigation report,
if available. If the PRP Search Report covers the material
needed in parti-ular sections t; * the litigation report,
-------
attaching the PRP Search Report and citing to the appropriate
pages may be appropriate.
The report should include names of all PRPs, the volume
and nature of substances contributed by.each PRP and a ranking
by volume, to the extent available, as done under
I :.2(e)'(l) of CERCIA. Especially difficult issues of
liifiility, such as individual corporate officer liability,
corporate parent/subsidiary liability and successor'
corporation liability, should be highlighted in this section
of the litigation-report.
Information regarding liability of PRPs generally is net
included in the-administrative record for selection of the
response 'action except.to the extent that PRP-specific
(typically, substance-specific)'information is needed for v
response selection decisions'. However, all PRP liability
documents must be collated, separated by PRP to the extent
possible, and available in the Regional office at the time ,of
referral. The format for discussing PRP liability and
.describing the proposed defendants is noted below.
1.' Owner or Operator ar.d ,foirjrier Owner or Operator.,
(CERCLA §§ 107(a)(l) and (2)) . -
a. Description of. facility and activities undertaken at
facility during period of ownership.
Briefly discuss the business of the defendant,
providing details about the facility in
question. When the defendant is a'
manufacturer, describe what is produced.
. Describe the plant and processes used.
Emphasis should be on the source of the
. release/threatened release that necessitates
the response acvion. Legal description of the
property must be in the title search done
during-the PRP search.
Past owners ar<- responsible if they owned the
. property when hazardous'substances were
disposed of.' Title search will establish
ownership; documents (business records,
permits, manifests, etc.) and witnesses (names
of employees,neighbors should be included)
will establish disposal at time of ownership.
b. State of incorporation/principal place of business.
If there is a question whether the corporation
* ' -has been dissoj-/ed or subsumed into' a-different
entity, discuss the issue, ascertain status of
-------
12 9835.1 H
- corporation and attach a Dun and'Bradstreet
report and corporation papers from the
.secretary of state's-office (if not'too ' . . .
voluminous). - '
Give a brief synopsi of any name changes and
changes in' corporate form of the proposed
defendant(s). Include dates during which the
corporation managed the business responsible
for the problem. .
c. Agent-for service'of process. ~ ,
Include name, address, and telephone number, if
known, . __ '
d. Legal counsel. '
Include name, address and telephone number.
. Note if .there are liaison counsel, separate
.. , negotiation and litigation counsel or a
steering committee involved and include
pertinent names and affiliations.
e. Identity of ar.y parent or successor corporation^) .
Discuss 'evidence available or needed to show
corporate control or assumption of'liabilities.
Merger, acquisition and divestiture papers
should be attached, if available and not too
voluminous.
f. . Deed/purchase agreement with former owner.
This may be part of the title search completed
. , during the PRP search. . '
g. Lease Agreements. ' .
' V ,' '
If the property is or has been leased, include
a copy of the lease agreement(s), if not too
voluminous.
h. Financial viability/insurance information.
Where financial.viability of m potential
defendant is an issue, financial and insurance
information will be important. Discuss the
-issue and attach prior 10K, 1QQ or other SEC
filings, Dun and Braastreef'or other similar
report, and recent bank loan applications, if.
' not too volur.ir.ous. gee. "PRP Search Manual" * '
-------
9835JH
and "Guidance on, Use and Enforcement .of
Information, Requests and Administrative
Subpoenas" (OECM, 08/25/88) .
Where insurance coverage nay be available,
' , . describe ..id attar i, if Available, any current
' cr ,-icvious ,potem..ally applicable insurance '
policies. If the case is a multi-generator
case, insurance information is not needed in
the referral package itself. - See . "Guidance on
Use and Enforcement of Information Requests and
Administrative Subpoenas" and "Procedural
Guidance on Treatment of Insurers Under CERCLA"
(OECM, 11/21/85) .
i. Personal liability issues;
If proposed defendants include corporate
officers or managers/ discuss facts surrounding
corporate officers '/managers' personal'
involvement in the activities resulting in
, - .liability and the degree of their personal
direction of corporate affairs.
j. Potential CERCLA $ 107 (b) defenses.
only defenses available' to liability under
CERCLA i 107 (a) for owner/operators are set
forth in i 107 (b) . The defendant must
demonstrate by a preponderance of the evidence
that the release was caused solely by (1) an
act of God, (2) an act of war, (3) a third
party (under certain conditions), or (4) any
combination of the above. Discuss any . ! .
potential i 107 (b) defenses associated with the
potential -actions and include documents that
may tend to support or negate such defenses.
In general, the third-party defense in CERCLA §
107(b)(3) is available if the PRP can
establish, by a preponderance of the evidence,
that an entity, not related to the. PRP by
contract, agency or otherwise, was solely
responsible for the release, and the PRP
exercised due, care concerning disposal at the
site in light of the -circumstances and took
precautions against foreseeable acts- or
omissions -of such third parties.
Th '. litigat on re^'.'.rt should- identify1 and
.address any events or circumstances that may
show "sole cause," /'due care" or , . .
-------
14
9835,1 I-I
"foreseeability," Discussion of the .
.availability of.the third-party defense in
. - light of those 'facts should, also -be included in
the -report. '
, . Discuss fully whetvar the "innocent landowner"
''' defense may be ava.lable based upon the
parameters set forth in C£RCIA Section 101(35).
Review "Guidance on Landowner Liability under
Section 107(a)(l) of CERCLA, pe. Minimis
Settlements Under Section 122(g)(l)(b) of
CERCLA and Settlement* with Prospective
Purchasers of Contaminated Property" (OECM/OSWER
6/6/89) and SARA Conference Report. Discuss
\ how factors relating to the landowner fit
within the guidance. Include all
administrative discovery and documents from the
landowner which may tend to support or negate
- ' this defense. The referral should also assess '
the nature and weight of available evidence
, regarding the defense as it may apply to each
. owner/operator. - '
2. S.er.ejratojrs anjL Other Persons Who-Arranged -fojr' Disposal
(CERCLA | 107(a) (3) ) .
The following information should be provided .for
! . . those parties that.the Region recommends as defendants.
* - A lesser amount of"information regarding other potential
' generator-type PRPs that are not proposed defendants at
' this time should be provided- as well, along with a short
. explanation of the determination net to include those
parties as proposed- defendants in this referral-package.
See Section IX.B., page' 10, supra. . _
'" " ' *
a. -.As a; starting point» the referral must contain a
list of amount and types of wastes generated by and
contributed to the site by each generator, to the
extent -known,, ranked by volume. The list should '
include an indication of whether the material is a
RCRA hazardous waste or other CERCLA hazardous.
substance and the source of that determination
' . : ' (e.g., it 'is a listed'waste, it fails the Extraction'
Procedure (IP) Toxicity Test, etc.). See. Section
XX.A.1., below. -If ATSDR is or will be writing a
report, so note (and attach copy if appropriate and
, not too voluminous). ,
b. Identification of generator's facility and
. " description of and evidence 'documenting' amount ai,.i
type of hazardous substances sent to the site'(e.g.,
: manifests, § 104(e)/S 3007 letter responses, ;
-------
. .^.W-.i..- ' ' 9835.1 H
. : 13
subpoenas, interviews, etc.). Such information
should be organized, summarized and collated
separately for eacn defendant. If such documentary
information is not' available or is somewhat
equivocal (assuming, of course, a good faith basis
to proceed), the litigat-'.on report must 'identify the
reasons for including th s party as a proposed.'
defendant and the strategy for linking the defendant
' to the site (e.g., proposed discovery.strategy or
' use. of process chemistry).
c. Indication of the current level(s) at the site of
each contaminant sent to the site by the proposed
defendant(s), if available. It is important that
the hazardous substances at the site be identified,
to the extent possible, with each potential
defendant-.
d. Description of the transporter of and 'the method of -
, transporting the material, for disposal.
Facts should.be included detailing whether the
company used an independent contractor, company
owned vehicles, etc. for delivering the waste
. material. ' , -
e. State cf incorporation;. . "
' ' gee. Section-IX.B.I.b. above.
'f. Agent for service .of .process. ,, t
fifie.', Section IX.B.I.e., above. . -
g. .Legal counsel.
See. Section iX.B.l.b., above.
h. Identity of any parent or .successor corporation(s).
where financial viability of a subsidiary is
questionable or when-a PRP has been acquired by
, another entity subsequent to disposal of the
hazardous,.substances, discuss evidence
available'or needed'to show corporate control ,
or assumptions of liability. Merger,
acquisition and divestiture papers 'should be
attached, if available and not too voluminous.
i. . Description.and evidence, offinancial viability.
See. Section ,ix.B.I.h., above.
-------
CO 7 J- 1 t I
7 G «i ; ~ I
j. - Potential CERCLA § 107(b) defenses. ;.
S_e_e, Section IX.8.1 1.', above. _ - \
Transporters - CERCLA' § 107(a^ (4) ','.'. . ' '
a. 'Description of transporter's business.
b. List o'f. generators each transporter worked for.
c. List of amount and types, of waste transported' and
destination.
dl Description of evidence "documenting pickup..point and
destination point, and amount and type of hazardous
wastes'or-hazardous substances'transported.
1 ' * ,
e. Discussion of evidence to be used in'showing that'
_ . the transporter- selected the site.- See. "Policy for
'Enforcement Actions against Transporters under
CERCLA1! (OECM/OWPE, December 23; 1985}.
f. Description ,of any potential trans-shipments beyond
disposal 'facility in question. See also, discussion
. at Section IX.B.2.J., above.
g. State cf incorporation..
- ' See. Section IX.B.l.b., above.
h.. Ager.t for service, of process.
' See. Section ,IX.B.I..c., above.
i.-" Legal counsel. ,' . . , . ,
See. Section IX.B.l.d., above.
j. Identity of-any parent or successor corporation.
- Se_e_; Section IX.B.2.h. / above.
k. Description and evidence of financial viability.
See. Section IX.B.1.h.,-'above.'
1. - Potential CERCLA § ICH.fb*, defenses.
See. Section IX.B.2.J., above. Also note *f2CC"
defenses'in'-CERCLA i 101(20). .
-------
. 1 .-.'. 96^5,1 H
C. |||.seellaneous Issues Regarding Liability
and Cost Recovery
1. Special Defendants
Identify and discuss any issues regarding special
defendants (e.g., municipal or State agency
defendants). Include her? any discussion of Federal
PRPs involved with the s;:e.
2. Divisibility of Kara
Discuss any divisibility issues presented by
separate sites or potentially segregable harms
presented, at a single .site. Discuss any proposed -
allocation of costs that is based upon such
potential divisibility. v
3. Exemption from Liability Issues - Discuss if applicable:
a. federally permitted release (CERCLA | 101(10)).
See. "Reporting Exemptions for Federally Permitted
' Releases of Hazardous Substances;* Proposed Rule11 53
Fed.- Reo. 27268 (July 19, If88) .
b. Petroleum, natural gas, synthetic gas, and crude oil
exclusions (CERCLA IS 101(10), 101(14), 101(33)).
. ' , . For cases involving vaste oil, used oil or
other petroleum based materials, set forth a
preliminary determination of why the parties
, dealing with such materials should be sued and
. - _ .the bases for this determination.
Review, "Scope of the CERCLA Petroleum
Exclusion" (OGC, July 31, 1987) and state how
analysis in this case complies with that
guidance. Once promulgated, RCRA 5-3014
regulations should be discussed, if relevant. ,
c. Nuclear materials (CERCLA I 101(22)).
d. Fertilizers - Normal application is not a "release"
(CERCLA i 101(22)).
e. Pesticides - Cost recovery may not be available
for response to releases of pesticides registered
under FIFRA. See CERCLA Section'107((i). Discuss
any "pesticide reformulation facility" issues that
.may be relevant.
-------
IB
f. Consumer products - Products-for consumer use not
included in dr'inition of "facility" in CERCXA
', I 101(9).
4. ' Editable Considerations10
In certain circumstances, th»* Region may be able to
anticipate additional arguments that will be asserted by
.certain PRPs. Such arguments may include .equitable
defenses, negligent permitting of a site by a State or
Federal agency, etc. Any such potential issues known to
the Region should be identified and addressed in the
litigation report.
5. Ability to Recover Costs/NCP Issues
Discuss any potential arguments that may be asserted by
defendants regarding costs, including such things as
.' gross errors in implementing the remedy and inconsistency
of" the response with statutory or; HCP provisions. This .
discussion may be deferred to Section XI.D., below, if
appropriate. i '.
6. Potential Criminal Liability
. ' The referral memo should briefly describe if there 'is a
State or. Federal criminal investigation ongoing,
.contemplated or completed and relationship.to current
Agency guidance on parallel proceedings.
X. Enforcement History; Contacts with the Potential Defendants .
To ensure that the Department of Justice has a complete
history of-EPA1s course of dealings with the site and the
potential defendants, the following information should be
discussed.if applicable. . ' .
t
A, ' Pertinent 'contacts with potential defendants. Indicate
dates, duration,, nature of contact and any conclusions
drawn, including evidence of recalcitrance or
cooperation. Initial contact may be made during the PRP
search. The following is a partial list of the types of
. 10 Tne government has consistently taken the position '
.that, aside from proving that they are not one of the'
-parties that may be held liable under CERCIA Section 107(a), a
PRP's only possible defenses in a CERCLA action are those , '
delineated in CERCIA Section 107 (b). It should be noted,' however,
that certain courts have held that equitable defenses are
available under CERCIA. - ..' ' -
-------
9835.1 !-/
19
contacts that should be discussed in the litigation ,
report. . '
1. information requests, t.'bpoe'naed documents/
testimony. '
"Guidance on Use and Enforcement of CERCLA
, information Requests and Administrative '
Subpoenas" (OECM 08/25/88} .
2. Interviews with site or generator employees, truck
drivers, etc. , '
3. FOIA requests. ,
4. Demand letters (CERCLA § 10? actions only).
5.' Warrants/ access orders or agreements.
6r Administrative order (s)
-Describe any State or Federal., AOs that have
been issued to anyone involved at the site find
the current status of the ordor(s). 'If the
case involves 'enforcement- of a Federal- AO under
. ' RCRA or CERCLA, the AO should be attached to
the report and the basis for and the facts
surrounding any claim for penalties or treble
' ' damages (CERCLA only) 'need- to be 'discussed.
7. Penr.it (s) (State or Federal) and permit applications
relevant to the referral.
List all permits issued to the facility or site
and discuss thost that are relevant to this
referral and any actions required to 'enforce
the conditions, of the permit.
8. Federal lien - gee. "Guidance on Federal Superfund
Liens" (OECM 5/22/87) .
B. Involvement of State, local agencies and citizens.
Identify pertinent contacts or actions taken or
anticipated by state or local agencies and citizens. In
particular, discuss local or State civil or criminal
enforcement actions taken or pending and describe any
role the State. anticipates p" aying in an ongoing action.
Any notable positions that tne state has taken regarding
this site or other CERCLA sites' in the area of State - ,
involvement in remedy selection or implementation
decisions, or ARAR, selection should specifically be
-------
20 9835.1 hi
noted.. Media coverage regarding the site should also'be
noted and print media articles should be attached, if
available. '
C. citizen suits'filed. ; . -
Identify any relevant citJ :en suits. Identify plaintiff-
and defendants. Summarize claims 'asserted. Indicate date
- case was filed and in what court. Describe- case status.
0. Administrative or judicial actions (regarding1 the site
only) filed by State or filed or referred by Federal
government under environmental statutes other than RCRA,
CERCLA or State counterparts thereof should be discussed.
Include recent actions in all media and under all
statutes.' Include any related or pending administrative
enforcement proceedings (e.g., CAA ft 113/120, TSCA S
16(a), RCRA | 3008, FIFRA || 13 or 14(a), CWA i 309, and
MPRSA § 105(a) proceedings). Generally discuss
defendant's responses. Also indicate recent contacts-'
by/with program office permits staff.
E. RCRA facilities. ' - - _
Where the site/facility is a RCRA facility or former RCRA
facility (e.g., LOIS, wois, or protective filers of a
RCRA Part A permit), the rationale must be given for the
decision to pursue fi 7003 or i 106 injunctive relief for
site remediation, instead of corrective action or closure
pursuant to RCRA § 3008(h) or, if appropriate, §§ 3004(u)
- or (v), where permitted. IMPORTANT; See. NPL deferred
listing policy for RCRA,sites, as described'at 51 Fed.
Res. 21057 (June 10, 1986) and 53 fed, fleer. 30002
.(August 9, 1968). See also. "National Oil and Hazardous
Substances Contingency Plan; Proposed Rule." 53 fed. R_eg.
51394, 51415 (December 21, 1988).
F._ Prior Orders or Consent .Decree(s) - ,
Certain facilities or sites may have been subject-to
prior administrative orders or consent decrees addressing
other cleanup actions or access. The litigation report
should include a general description of the terms of the
decree, whether the facility or, site owner complied with
the terms of the 'decree and-'what'statute and claims were
involved. '
-------
21 9835JH
XI. C6st Recovery /
There are tour elements to the grima facie ease for
cost recovery relief under CERCLA: ,. . _-
o There is a release c threat of release of a
hazardous substance.
o The release or threat of release is' from a
facility i* .
. ' o The release or threat of release caused the
United'States to incur response costs,
o The Defendant is in. one of those categories of
liable parties in CERCIA i 107(a).
" C
Elements i, 2, and 4 have been'discussed in Section IX,
above.-11 The third element (expenditure of response costs)!
" -as described below, has 'several facets to it.12
There are two general' types of evidence that must be
available to prove costs; "work" evidence and "cost" evidence.
The "work" evidence typically will be in the form of documents
and testimony detailing- the activities undertaken. The "cost"
evidence will primarily involve documents detailing the cost
of those activities. The major guidance documents
discussing CERCLA costs and cost documentation requirements
are:
- o "Procedures for Documenting Costs for CERCIA
§ 107 Actions" (OWPE January . 1985)
11 These three elements -are' typically part .of the -.
, government's "liability" case and should be
established, 'in. most cases, through summary judgment. The
evidence to establish the "release/threat1* and "facility11 elements
should be based on -documents in 'the administrative record for the
selection of the response action.
12 To tne extent that this element of the Section
107 prima facie case involves review of remedy
selection decisions, Section 113(j) requires that review be on the
administrative record. It is EPA's view that under Section 107
of CERCIA, judicial review of costs incurred by EPA is confined to
proof that the implemented cleanup was consistent with the
.response action selected by EPA, that the response action was
performed and that the claimed co:?ts were actually, incurred.
-------
22 ,
o "Financial-Management Procedures for Documenting
Superfund Costs" (FMD September 1986)
o "Cost Documentation Requirements for Superfund
Cooperative Agreements, Appendix U" (OSWER Directive
, 9375.14U)
o "Resource Management Directive 2I50D - Financial
Management of the Superfund Program" (Comptroller
July 25, 1988)
o "Superfund Cost Recovery Strategy11 (OSWER Directive
No. 9832.13, July 25, 198S)
Work and cost documents must be available for each of the
cost areas in a cost-recovery case. In addition, official
determinations regarding expenditures of money should be
1 discussed in the litigation report and the corresponding
documents included in the appendices (e.g.',- approval memo for,
removals exceeding $2.0M). The referral should also indicate
whether the Region has-redacted the cost documents for
confidential business information (CBI) and, if not, a date by
which it will do so.
A. Past cost summary (by category of costs).
As noted in prior guidance, the cost summary (but not the
entire cost documentation.package) must be included in
the litigation,report. Nonetheless, the complete cost
documentation package must be compiled in .the Region at
the time of the referral and supplemented thereafter on a
timely basis. . , .
B. Response action cost elements and documentation.,
i ,
i
The referral must clearly Identify each of the Agency
responses undertaken at the site (i.e., Removal(s),
RI/FS, RD, and RA) and each operable unit of each
response.
Each phase of a response action will have certain types
of documentation required for proof of the costs for that
phase of response. Some of the documentation may be
.similar to that used in proof of other phases 'Of an
overall response .to a site.' For aach of the jEgsppnsji
a_gtjLoris at a site, the following information and documents
' must be gathered, organized and''available in the Region'at
the time of' referral. ..Definitive guidance on the
documents necessary for cost recoveryis contained in tne
manuals noted above. ;. -
-------
9835,1
23
1. Each Federal'contractor used and tasks performed.
a. . Work done (e.g., contracts/ subcontracts,
.- letter reports Technical Directive .Document*!
(TDDs), work assignments, scopes of '--oik, -^4.,
progress reports, TDD Acknowledgement of
Completion); "
b. cost .of that work (e.g., invoices, vouchers);
c. that payment was made (e.g., paid/processed
invoices, contract status notifications, and
Treasury Schedules).
2. Each Interagency Agreement (IAG) employed and .tasks
performed.
a. Work done (e.g., each IAG, contracts entered
into by the other Agency, work assignments,
scope of work, work progress reports, and ack-
nowledgements of completion);
b. cost of that work (e.g., invoices, vouchers,
drawdown vouchers and the pertinent* reports to
the agency); " ,
c. that payment was made (e.g., paid/processed
invoices)
3. Each cooperative agreement signed, tasks performed
and. contractors hired by the State.,\3
a. Work done (e.g., each cooperative agreement and
all amendments thereto, contracts entered into
by the State, work assignments, scope of work,
' work progress reports, and acknowledgements of
completion);
13 ' CCRCIA Section lll(k) requires an'Inspector General
"audit of.the Hazardous Substances Superfund and random
audits of cooperative agreements and State Superfund contracts.
EPA's Inspector General also does periodic site-specific general
audits. The results of any site-specific audits pertinent to the-
referral should be described and, if.not too voluminous, attached.
Copies of audit reports may be obtained from theInspector General
Division of the Office of General Counsel.
-------
9835.11-/
. - b.- .cost of that work {e.g., invoices, vouchers,
drawdown vouchers' and the pertinent reports, to
the Agency)j
c. that payment was'made (e.g., paid/processed
invoices).
4' Agency'personnel activ:' :ies performed at ttte site.
a. Work done (e.g., timesheets, travel
authorizations); .
b. cost of that work (e.g., Agency financial"
management (SPUR) report, Travel Vouchers,
. etc.); " "
c. that payment was made (Treasury schedules).
5. EPA indirect costs - Indirect cost calculation
worksheets and summary sheet should be included
in the litigation report., See. "Superfund
Indirect Cost Manual for Cost Recovery
Purposes: F₯ 1983 through FY 1986* (CASH March
1986); "Superfund Indirect Cost.Rates for
Fiscal Years 1985 and 1986" (OARM .12/17/8?.) .
"*-
f. Interest .
a. Identify date of* demand and include copy of
demand letter or other document- indicating
, initiation date,used for calculation of
'prejudgment interest.
b. 'Include spreadsheet or other documents showing
prejudgment interest calculations.
See. CERCLA Section 107(a); Comptroller Policy
-Announcement 87-17s "Interest Rates for Debts - ,
Recoverable Under the Superfund Amendments and
Reauthorization Act of 1986" (09/30/87); "Interest
Rates for Superfund Relr.ted Debts" (Comptroller
6/15/88)
C. Projected future costs,' ;
1. An estimate of the types, amounts and basis of
future expenditures', if they are planned or can - .
reasonably be projected, should be included.
-------
25
2. ' ^Future costs (or even, a declaratory judgment
'concerning 'liability for future costs*4) are, for
tactical reasons,- not always-sought in each case.
If they are not sought.- (i.e., no potential "statute '
of limitations problem,"an explanation why not'
- should be included. _-,.- .
0. Potential'problems with costs. ('See also. IX.C.5., above)
1. The referral should describe and' include any
' documents discussing or criticizing any cost figures
or. activities undertaken, including the On-Scene
Coordinator's Report (40 C.F.R. 300.40) or any
Congressional investigations or .Inspector General
audits notdescribed previously 'that refer to or
directly discuss the -site cleanup activities or
costs. - -
2s_, Any potential problems regarding consistency
with the National Contingency Plan should also be
discussed. "',--'
Z. Statute of Limitations '(CERCLA SectionVil3(g)(2)j
Discuss any potential statute of limitations issues.
See. "Timing of Cost Recovery Actions" (OWPE, . -
October 7, 1985). See also. '"Cost Recovery Actions/
Statute of Limitations" (OWPE, June 12, 1S87). Indicate
relevant dates'. t ..''..
F. Identify'any prior proceeds received. '
1. Ten percent state-, share ' _ ' . ' ,
2. Prior settlement proceeds (received and expected)
3. . Bankruptcy proceeds . > t
XII. Penalties and Punitive Damages ' ^
A. Section 106fb^ - state whether defendant'has violated 'an
order issued under Section 106. The referral must
describe all evidence showing that defendant
willfully violated or failed or refused to. comply
- with the order, without sufficient cause. Discuss
all arguments that defendant may raise justifying
failure to .comply with" the order (e.g., not a
' responsible party, terms .of order were arbitrary) . '
14 Sfifi,'CIRCLA Section"113(g)(2).
-------
26
98 3 5.1-H
Set' forth calculation of penalties. Discuss all
. opportunities defendant had to meet with Agency
' , ; prior to issuance, of' the order. Note -the
possibility that, under Tull v. United states. 481
U.S. , 107 S.Ct. , 95 L.Ed. 2d 365 (1987}, the
case nay involve a jury trial.15 Any referral that
proposes civil penalties must contain some analysis.
o'f-t'h>. ps\..*ty aspe' ,:s of, the case inflight of 23411.'.
B. ' s.ejptlert107 - Defendant may be liable for punitive
damages in an.amount equal to and not more than
three times the amount;of costs incurred by the
- Hazardous Substances Superfund if defendant failed
'without' sufficient cause to properly carry out
removal or remedial action under a CERCLA II 104 or
106 order. Discuss the nature of and evidence
supporting proof of defendants1 violations, the
amount and basis for damages sought 'under- this
authority, and any justifications defendant may have
" for failing to, perform the" action. , .',*,'
XXII. Iniunctive Relief '. ',
- Under this section of the litigation report-, the substantive
requirements of the relevant portions of the applicable statute
should be presented. Applicable case law should be cited and
analyzed'. -If"a''novel theory is proposed," support for that theory
should be included. Inxaddition, any determinations that are
required by statute or regulation (e.g., that an imminent and
substantial endangerment exists at. the site) should'be de'scribed
and documented, in the administrative.record.
. . - . \ .
.A. CERCLA Section 10616 . . , , .
CERCIA Section 113(j) .clearly provides that CERCLA remedy
selection decisions are entitled to review based upon the
Is ' Under Tull. the Supreme Court held that the Seventh
Amendment to the Constitution may'guarantee a jury.
trial to determine liability in-Clean"Water Act civil enforcement
cases seeking civil penalties. Under that ruling, however, a jury
does not.assess the amount of penalties, nor is a jury'required, in
an action brought solely for injunctive relief. The government's
position is that a jury trial is not available to decide liability
issues where a court can decide the case through summary judgment.
-(e.g., where no issues of material fact are present). ' .-
16 - See. "Guidance"on CERCLA Section 106 Judicial Actions"
(Reich'Porter, .V29/8"^ for factors considered in - *
selecting Kand initiating Section 1.06- actions. ' . "''
-------
administrative record.17 That'decision.will be based on,'
among other things, evidence of two of the three core elements
of the CERCLA pjrima facie case (noted in.detail in Section
IX.A., above): (1).the release-or threat, of release of'
hazar .ous substances, (2) from < facility. '
The key additional element for a Section 106 action,
aside from liability, is that there be a condition which
presents,or may present'an imminent and substantial
endangerment to public health or welfare or the environment.
Evidence on this subject generally will be available through
the results of'activities undertaken pursuant'to Subpart F'--
Hazardous Substance Response of the NCP (40 C.F.R. Part 300 et
seg.). The endangerment assessment/risk assessment typically.
contained'in the RI, or as a separate document, is the
critical piece of information.
/ , ,
' The evidence to support these three elements 'of the
Section 106 prima. facie case should be addressed in .and be
part of the RI and FS and will be documented in the ROD as
part of the Agency's remedy selection decision. The remedy
selection decision in the ROD'itself should define the
injunctive relief-EPA will seek'and should be,upheld if it is
supported by the administrative record and. is'not arbitrary
and capricious.18 ' , . '
Of course, to complete the CERCLA Section 106 gr:ima fgcie
case/ the United states will still have 'to present evidence on
liability' (i.e., that the party is a responsible party
(including but not limited to these classes 'of persons liable
under CERCLA Section 107(a)j) and may have to present"evidence
showing that any alleged affirmative defenses' under Section
107(b) are inapplicable,19 both of which might be reviewed by
the court de novo. See. Section IX., above.
17 To assist.in ensuring :record' review of the remedy .. -
selection decision, the Region also should typically
issue a unilateral administrative order under CERCLA f 106 after ,
the ROD is'signed.. * ' ' .
18 The case law on the,standard of review 'for remedy1
selection decisions'in the context of CERCLA section .
106 actions that were filed pr.e-SARA has been split. However, it
is the Agency's position that record review with an arbitrary and
capricious standard is;iapplicable. ' l
. i , ] .
19 The Section 107(b)-defenses, to liability typically are
available in Section I06(a) actions for injunctive relie:
-------
28 - 9835.11-1
B. RCRA Section "7003' (See Appendix I)
The' prima facie case- for RCRA Section 7003 is slightly '
different than that for CERCLA Section 106, Success ori-the
. ' merits Binder' RCRA Section 7,0'03 re,, ,'iires proof" of the 'following
elements: "".'' '
'o .Past' or present handling, , storage, treatment,,' '
transportation20 or ..disposal, ' -
o of a hazardous or solid waste, . - .
o nay present an imminent and.substantial.endangennent
to health or the."environment, and
o the party has contributed or is contributing to such
' .handling, storage,- treatment, transportation or;
disposal. ' * ''''-.-
If a RCSA | 7003 count (or other non-CEHCLA statutory
"er.dangerment" claim).'is proposed, causation and record-review
of remedy-selection will probably be raised by defendants. - -
-- -Since' RCRA does not on its face 'provide for -record review, and
- the reach.of CERCLA Section 106 .'and RCRA Section 7003 is- -
generally'coextensive ,'2i' the referral .should-identify'-the ;
- . specific reason for.inclusion-of the RCRA $ 7003 (or other -
""endangerment'1} claims,.- ' -_ ' -
'These. RCRA'$ 7003 prir.a' facie case elements are discussed
-briefly below and-mere-extensively in Appendix I:
1. Past or present handling, storage, treatment,-
' transportation or disposal. _ . ; '
.Describe the facility or' PRP activities that come "
within the meanings of these terms. ' ("Treatment", .
"storage"'and ^'disposal11 are all defined in RCRA
I 1004.) ' '"'-..'"..
2. Hazardous''or solid waste. -' ' -
.Each material that is the subject of the'referral
for which liability is sought to be--imposed must be
20 . Note that RCRA. § 7003 contains an exemption from
liability for,certain transporters, similar to the
exemption in CERCLA § 101(20).
21" ' RCRA Section 70C3 applies to "solid or 'hazardous . -
'"- ' wastes," which is- a broader universe, of-materials than'
-"hazardous substances." - . . -
-------
9835,1 H
identified as .-a hazardous waste or a solid waste.
See. RCRA !§ 1004(5) and 1004(27), respectively.
Sec also. 40 C.F.R, 261.'3 and 40 C.F.R, 261.2,
which, while not directly governing Section 7003
actions, also delir.azte materials as hazardous ,'
wastes dt<- to thei: characteristics or because, they
are specifically 1 ;ted as such in the regulations.
3. May present an imminent and substantial endangerment to
health or the environment.
Although we will argue for record review. in these
cases, additional evidence may need to be -adduced.
A discussion of the types of evidence that may be
needed to support 'this element of the RCRA
§ 7003 case is included in Appendix X.
4. The party has contributed or is 'contributing to such
handling, storage, treatment, transportation or disposal. -
This aspect of the RCRA §7003 prima facie case may
be- an additional, different burden than faced under
CERCLA. The referral must discuss the available
documentary and testimonial evidence that will be
used to show that a particular generator's waste (or
, at least the same type of waste when, the wastes have
commingled) , or an owner/ operator's actions .Mhas
contributed o.r is contributing to" a situation that
- may present an imminent and substantial
endangermer.t . i
XIV. Other Legal Issues . '
A. Potential defenses/exclusions (other than those noted
in Sections - IX. S. 1. j ., IX.B.2.J. and IX. C., above}".
B.. Statute of limitations . .
SJBJB . Section XI. E., above, regarding the CERCLA
statute of limitations. Since RCRA contains no
specific statute of limitations, underlying . facts
relating to the timing of any action under RCRA,
including any potential limitations, should be "
included.
C. Applicability of prior consent decree or A.O. entered
for- this site. See. Section X.F., above.
D. Res judi :ata/coll -teral rstoppel/equitable estoppel.
-------
9835.1 H
XV. 'Litigation/Settlement Strategy
A. Case Management Planning '' . .
I. A preliminary draft case management plan should be
prepared. See "Case Management Plans" (Adams/
Marzulla 3/11/88). Aval.ability of and proposed
assignments for Regional legal and technical
personnel should toe noted in the draft plan.
B. Settlement Negotiations
1. .Prior efforts to settle. ,
v t
Describe history or attempts to settle by vay of
. notice/demand/special notice letters, PRP meeting,
'etc. .
2. Special notice
Discuss whether special notice was sent and the
results. See. "Interim Guidance on notice Letters,
Negotiations, and Information Exchange" (OWFE,
10/19/87)
3. 'History of -negotiations. . . . . '
Describe nature, extent and duration of prior or
ongoing settlement discussions regarding subject of
this referral, or negotiations concerning other*
pending environmental civil or administrative
actions. (When available, include discussions and
attempts to settle by State.), 'Describe attempts at
compromise and why process failed* Attach a copy of
latest version of AO or CD discussed with PRPs
' before negotiations-were terminated.
4. Planned Future Negotiations
If additional negotiations are to be pursued
.-. immediately after filing, 'include a brief settlement
valuation (gee. Interim CERCLA Settlement Policy,
SO Fed. Reg. 5034), recommending a bottom line and a
suggested negotiation strategy. Sftg il&g, "DRAFT
CERCLA' RD/RA Settlement Negotiations Checklist11
(OECM, 01/26/88).
a. '. state whether this case may be appropriate ,
for mixed funding. See. "Evaluating Mixed
Funding Settlements under CERCLA11 (OECM/OSWER,
10/20/87). . ,
-------
; 3i . 9835,11-1
*' b. State whether this ease has the potential for
££ jninirois settlements. £ejs, "Interim Guidance
On, Settlements with D_e, Minimis Haste Con-
tributors under SARA Section 122(g)"
(OECM/OSWER 06/2V87)(52 Fed. Reg. 24333,
06/30/87).
5. Include discussion of and a copy of any Non-Binding
Preliminary Allocation of Responsibility (NBAR) and
' ^ respons«s by PRPs.
sec. "Interim Guidelines for Preparing
Preliminary Non-Binding Allocations of
Responsibility" (OSWIR, 5/18/87)(52 Fed. Reg.
19919, 5/28/87).
C. Litigation Strategy -
_1. Discovery22
f
Indicate general need for obtaining evidence
(especially for critical facts) by discovery .
(interrogatories, depositions 'and requests for
admissions) on issues of liability and, in certain
instances, .response costs. (Include names and
addresses, if available, of potential witnesses and.
the evidence to be sought from such persons.)
Discuss the approach to be.taken in managing
discovery and document production if the action
involves multiple parties or massive numbers of
. documents.
V
2. Summary Judgment
Indicate if case has potential for summary judgment
or partial summary judgment and on what issues.
Explain briefly. / -
The referral should carefully consider whether claims exist
under the imminent hazard provisions of the other Federal
statutes listed below. The Appendices to the RCRA/CERCLA Case
Management Handbook describe 'and discuss each element of,
22 . Despite the availability of record review for
issues regarding the adequacy of remedy selection,
discovery will be available for certain other aspects of CERCIA
cases, such as for issues regarding liability.
-------
9835.1 1-
protof, listed below, for these other statutes and should .be
consulted. . .
A. Clean Air Ae1; t 303. 42 tf.S.C. t 7603 , ' '
l. A pollution source or combination of''sources
, (including moving sourc 3) rsee. 42 U.S.C.
§§ 7521-7574,' 42 U.S.C. § 7602 (j)J»
2. is presenting an imminent and substantial
endangennent to the health of persons.
, 3. State and local authorities have not acted to
abate such sources. , . .
4. Defendant is a person causing or contributing to the
alleged pollution. '
5. EPA has confirmed, the correctness of its
_. information.
B. Clean Mater Act t S04. 33 U.S.C. i 13j>4.
' The, Administrator may seek injunctive action-to stop
the 'discharge of pollutants or take such other action as
may be necessary (Sse., CWA || 504(a), 502(12), (6), (7),
; (9), (10), (14}] where the Administrator receives
evidence that:
1. A pollution source or combination of sources [gee.
CWA § 504(a), 502(19), <12J , (6), (7}, (14), (9),
{10}, 306(a)(3)],,
2. is presenting an imminent and substantial
endangerment to (1) the health of persons or (2)
to. the welfare of persons where such endangerment is
to the livelihood of such persons, such as
inability to market shellfish [504(a)].
3. Defendant is a person ca-ising or contributing to
the alleged pollution [5C4(a), 502(19)]. fits filSS*
discussion on RCRA f 7003, Section XZZI.B., above.
'C. Safe Drinking Wat^ey Act i 1431,42 U.g^C. i 300i
The Administrator may seek appropriate relief to protect
health of affected persons, including injunctive relief,
when the Administrator'is in receipt of evidence that:
x - f
1. A contaminant or contaminants tS 300i(a),
§.300f(6}]., . .
-------
33 ''
2. ? present in or likely to enter [i 300i{a)],
9835.1 H
3. a Public Water System [f 30Qi(a), |300f (4)] or
an underground source of drinking water, -
4. may present an imminent and substantial
endangerment to the hea ,th of persons, and
5. appropriate State and local authorities have not
acted to protect the health of such persons.
6. '' Where practicable, EPA consulted with state and
local authorities.
7. Information on State or local action taken, if
any. (Note: This provision is silent as to
definition'of responsible parties.)
XVII. Witnesses/Litigation- Support.
A. Witnesses
1. For fact witnesses-identified in the'litigation
report that have potentially relevant information,
' the following should be referenced in'the referral
' package.*'
o Present place of employment
o Home and business phone
o Substance of testimony
o Whether statement is on file. /.
2. For potential expert witnesses, the following are
. ' required in addition:
o Field of-expertise (include, resume and any
reports generated by expert regarding this site
or facility)
o whether individual is under EPA contract, and
if so through what contracting mechanism.
o other cases where the .expert has testified,*
been deposed or otherwise been retained'in the
past.
-------
9835.11-1
34 . '
'' 3. Potential adverse witnesses (fact or expert) "should
' also be identified, to the extent known, and the
substance of their potentially adverse testimony
; should be indicated. ' .
B. Lit., gation Support _ ' "._
1. Identify any contractor resources necessary and
-present plans for procuring such resources.
2. Provide an estimate of the relative resource demands
that the Region anticipates vill be required for the
proposed litigation and indicate any specific
workload model .projections attributed to this case.
-------
9835,11-1
PRIMA FACIE CASE
,. RCRA § 7003;
(42 U.S.C. I 6973)
This document was prepared
as suggestion and* guidance
only.
fACT 1 TO BE PROVEN STATUTORY BAf TS_
COKKEKTS
I. Administrator oust
present evidence of:
A. 1.-Handling,
. 2. Storage,
3. Treatment,
4.,Transportation,
or
5. Disposal
1004(33)1/
1004(34)
1004(3)a/
I. Of either.!
' 1.' Solid Waste,
or
1004(27)
40 C.F.R.
261.2
2. Hazardous Waste
1004(5)
40 C.F.R.
261.3
Disposal includes when waste is
first deposited, dumped, spilled,
or -placed onto the ground jpd also
when wastes later migrate. It
includes leaking (i.e., - ,.'
discharging and "repositioning")
as well as "reposing11 wastes.
See. U.S. v. CCC. 19 F. Supp.
162, 199-200.
Very broad definition of solid
waste, but note specific
exceptions.1 - See also, American
Mining Congress v. EPA. 824 F.2d .
1177 (D.C. Cir. 1987) holding that
EPA exceeded-'its authority under
RCRA In seeking to regulate as
"solid wastes*1 secondary materials
reused in an ongoing manufacturing
process, gee also. 53 Fed. Reg.
515 (January 8, 1988), for EPA1s
interpretation of that decision.
The definition states that a,waste
is hazardous if it "asy... .cause,
or significantly contribute to an
increase in illness' or mortality, .
or if it "may...pose a substantial
present or potential hazard to *
human health or environment" when
managed. These terms indicate a
scope broader than the strict,
conventional "causation."
Listing in RCRA regulations (40
l/ 42 U.S.C. i 690J is the definitions section of RCRA.
'}J See also Hazardous Materials Transportation'Act,
49 U.S.C. §§ 1801, 1802(6), 1809, 1810.
-------
- 2 -
9835.1 HI
FACTS TO BE PROVEN
STATUTORY BASIS
_CQKMENTS
C.May
C.F.R. Part 261) or evidence that
it is a "characteristic" waste
under, Part .261 is sufficient *o
establish that a materi*! : -
"hazardous waste."
D. An imminent and
Imminence applies to nature ->f '
threat rather than the
identification of the time when
'the endangennent actually
materialized.I/ An endangerment
is imminent if factors giving rise
to it are present, even though the
harm may not be realized for
years. U.S. v. CCC. ili'F. Supp.'
162, 193 (W.D. Mo. 1985)...
substantial endangennent
An endangennent is not necessarily
an actual harm out may also arise
from threatened or potential harm;
no' actual -injury need even occur.
Evidence must show only risk of
harm. See. CCC at 192; EJtfcyl
Corts. v. EPA. 541, F.2d 1 (D..C.
Cir. 1576), cert. den. 426 U.S.
941 (1976)? United States v.
Reserve Mining. 514 F.2d 492 (8th
Cir., 1975)i United Statesv.
Vertae. 489 ,F. Supp. 870, 885
(E.D. Ark. 1980)., Similarly, the
U.S. need not quantify the harm to
establish endangerment. An
endangennent is substantial if
there is reasonable cause for
I/ H.JR. Committee Print (96-IFC 31> S6th Cong. 1st Sess. 32 (1979))
-------
9835J.H
_\ fj__^m
TACTS TO BE PROVEN
STATUTORY BASIS
COMMENTS
E. TO
1. Health, or
2. The environment
concern that someone or something
may be exposed to risk of harm by a
. release'or threat of release if
response action is not taken, ccc .
at 191-li?.
See also legislative history and
case law interpreting other
"endangerment" provisions of Federal
law, including || 504(a) and 311(e)
of the Clean llater Act, I 1431 of
the Safe Drinking Water Act, f
303(a) of the Clean Air Act, f 7 of
the Toxic Substances Control Act; f
6(c) of the Federal Insecticide,
Fungicide and Rodenticide Act; i
2601 of the Consumer Product Safety
Act; f 662 of- the Occupational
Safety and Health Act; I 1810(b) of
Hazardous Materials -Transportation
Act,*, s 1511 (b) of the Deep water
Ports Act.* I 14IS of the Marine
Protection, Research and
Sanctuaries .Act, and I 355(e) of
Federal Food, Drug and Cosmetic Ac,^
The term 'incorporates surface water,
groundwater, soil, and air, and
probably includes fish, mammals,
biota, and plant life.
-------
- 4 -
9835^ H
FACTS TO .SE*PROVEN STATUTORY BASIS
COMMENTS
. liable Persons
III. Relief
A. To 'restrain liable- '
persons from: . _
1. Handling
2. Storage 1004(33)
3. Treataent 1004(34)
% 4. Transportation'
5. Disposal 1004(3)
Any person (including any pas- or
present generator, past or present
transporter, or past or present
o'^ner or operator'of a treatment',
m"'arage or disposal facility) who
'has contributed or who is
contributing to the alleged ,,
handling, storage, treatment,
' transporation or disposal of a .
olid or hazardous waste that may
present an imminent and-substantial
endangerment to health and
environment; Such liable persons
may include owners or operators of
the site, former owners or
operators, (both of which may
include landowners or lessors),
corporate officers and directors
(in their official and, in
appropriate circumstances,
individual capacities) waste
generators, and (unless.exempted by
§ '7003) waste transporters'. See.
e.g. . y... S « v. Ace to Aar IcuIturAl '
.Cheiy.qa.ls Corp.. No. 88-1580 (8th '
dr.- April 25, 1989), f.s. v. .
NEPACCO. 810 F.2d at 740, 745 (8tH
Cir. 1986), cert, denied 108 S.Cr.
146 (1987) ; U.S. v. CCC. 619.F.
Supp. at^198.
Included in relief granted by
courts in t 7003 actions aret
restraint of continued leaking,
requirement to undertake
investigative activities fPrice.
688 F,2d 204 (3rd Cir. 1982));
preparation and implementation of
plans for removal of wastes
fMidwest Solvents Recovery.484 F.
Supp. 138 (N.D. Ind.-1980));
injunction against further
activities on site, formulation of
plans for security and removal of
-------
- 5 -
98 35.1 H"
FACTS- T9 Bg,,,,PROVED ffTATVTQPY Efts IS
B. To 'order such other
action as may be
necessary
wastes tOttati and Gpss^ Civil Ko,
C80-225-L (D. N.H.)(Memorandum
opinion December 2, 1980}). See
also, U.S. v. Diamond Shamrock,
Civil No. C80-1857 (N.t
Ohio) {Memorandum C^.l'.l'.... tfay 29,
1981).
Authorizes affirmative equitable
relief to extent necessary to '
clean up site. See. PrJ.ce. 688 (
F.-2d at 213-14? .£££, 61f F. Supp.
162, 201.
C. To recover U.-S.
expenditures
A i^giit to recovery Federal funds
has been implied since Section
' 7003 does not contain any express
authority to seek cost recovery.
See. U.S. v. N1PACCO. 810 F.2d at
747? U.S. v. Price. 688 F.2d 214;
U.S. V. CCC. 619 F. SUpp. at 201.
See also, Wante ' Tras . Co . v..
U.S. 389 U.S. 191 (1S67) (Clean
Mater Act) ; U.S. v. Moran Towing
and Transportation Co.. 409 F.2d
561 (4th Cir. 1969) (Clean Water
Act); Restatement. Torts '6 919(1).
------- |