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.     .'             ,.

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      \ 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.            .          •         '

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                                                     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           •

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                                                           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-

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                                                         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.

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                                                        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

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       '*.* 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.

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. -   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'

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                                                         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.

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                                  •       •    •             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.         •         -         .

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                              ' 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.

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                                    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.

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                                                         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.

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                                                      •  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, •

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 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

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                           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"  *   '

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                                                   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      , .  .

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                                            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,      ;

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                     .   .^.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, of•financial viability.

          See. Section ,ix.B.I.h., above.

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                                               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).  .

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                    .            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.

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                                    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.  -  ..'    '            -  •

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                                                       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

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                                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. •                  '

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                                    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.

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                                              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 recovery•is contained in tne
                   manuals noted above.          ;.  -

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                                                      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  the•Inspector  General
Division of the Office of General Counsel.

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                                                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.

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                                 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 not•described 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).

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                                    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.        •        '  . "''•

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   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:

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                                    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." -  .              .           -

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                                                      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.

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                                                       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).              .            ,

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                          ;         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.

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                                                      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}].,     .          •            •       .

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                                   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.                 •

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                                                   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.

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                                                               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.

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                                   - 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))

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                                                            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.

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                                   - 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

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                                  - 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).

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