E'C
- 005
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
MAR - i iS90
MEMORANDUM
SUBJECT: Releasing Information to Potentially Responsible
Parties at CERCLA Sites
FROM:
TO;
Bruce M. Diamond, Directo
Office of Waste Programs
Glenn L. Unterberger
Associate Enforcement Counsel for Waste
Waste Management Division Director, Regions I-X
Regional Counsel, Regions I-X
This memorandum transmits to you a policy directive
"Releasing Information to Potentially Responsible Parties at
CESCLA Sites." This directive is issued pursuant to a
recommendation in the Management Reviewof the Superfund Program.
We received only a few comments to the December 22, 1989,
draft sent to you. Opinion was mixed on a change from current
policy concerning releases of information to potentially
responsible parties (PRPs) who do not respond to CERCLA section
104(e) information requests. In light of the Management Review
findings and recommendation, we believe on balance that the
policy change is appropriate. We note that the policy adopts a
case-by-case approach that allows, in appropriate circumstances,
withholding information.
Pursuant to the Management Review we plan issuing guidance
on how to compile waste-in lists and volumetric rankings. If you
or members of your staff would like to contribute to this effort,
please contact as soon as possible Rick Colbert, OWPE, at FTS
382-4015, Mail Code OS-510.
Attachment
cc: Henry Longest, OERR
Lisa Friedman, OGC
David Buente, DOJ
Received
JAN 2 8 2000
Enforcement & Compliance Ooctet
& Infr.iffl
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
MAR - 1 199C
OSWER Directive 9835.12
MEMORANDUM
SUBJECT; Releasing Information to Potentially Responsible
Parties at CERCLA Sites
FROM i Bruce M. Diamond, Director
Office of Waste Programs Enforcement
Glenn L. Unterberger
Associate Enforcement Counsel for Waste
TO: Waste Management Division Director, Regions I - X
Regional Counsel, Regions I - X
The release of information in appropriate circumstances to
potentially responsible parties (PRPs) at CERCLA sites advances
the goal of facilitating settlements. For PRPs to coalesce into
a negotiating group and to participate in settlement negotiations
with the Agency, they must have information about the site and
other PRPs. This information can help PRPs allocate costs and
responsibilities among themselves and increase the pool of PRPs
participating in settlements. This can help achieve Agency goals
of expediting cleanups, encouraging PRPs to undertake or finance
cleanups, and avoiding unnecessary litigation.
Background
The initial Agency policy developed on releasing information
to PRPs addressed both the exchange of documents with PRPs and
the provision of aggregate waste-in information to PRPs. First,
the policy called for a mutual exchange of information — EPA
would provide certain information to any PRP that reciprocated by
providing all site-related information to EPA, Second, PRPs at
CERCLA sites would receive the names and addresses of all other
PRPs at the site, and if available, information regarding the
volume and nature of substances contributed by each PRP ("waste-
in lists") and a ranking by volume of the substances at the site
("volumetric rankings") . To the extent this information is
available, it is to be released as early as reasonably possible.
The Agency first stated this policy in the "Interim CERCLA
Settlement Policy," 50 FR 5034, December 5, 1984, OSWER Dir.
9835.0. The 1986 amendments to CERCLA essentially mandated, in
section 122(e)(l) of CERCLA, application of this policy when
special notice procedures are invoked. In 1988, the Agency
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OSWER Directive 9835.12
restated and provided further guidance on the policy in the
"Interim Guidance on Notice Letters, Negotiations and Information
Exchange," 53 FR 5298, February 23, 1988, OSWER Dir. 9834.10.
[On January 26, 1984, the Agency issued guidance concerning
specifically "Releasing Identities of Potentially Responsible
Parties in Response to FOIA Requests,11 OSWER Dir. 9834.0.]
Discussion
The Agency's experience in negotiating settlements with PRPs
in CERCIA cases and viewing PRP efforts to organize has shown
that the focus on waste-in lists and volumetric rankings in its
PRP information-release policy is not always appropriate. For
example, in many cases there is not enough information available
early to develop the lists or rankings. In addition, for PRPs to
coalesce into a negotiating group and to limit the reticence of
s'ome PRPs to join the group based upon the fact that they have
not reviewed underlying documentation, it may be helpful to
release to PRPs the information upon which the Agency concludes
that a person is a PRP (or upon which the Agency based, or could
base, a waste-in list or volumetric ranking). Because of PRPs1
potential joint and several liability, this liability information
can encourage PRPs to cooperate with other PRPs and not "sit it
out." with this information available to PRPs as a group, PRPs
can encourage other PRPs to cooperate. It also can be used as
the basis for PRPs to allocate responsibilities among themselves
using their own allocation schemes.
There are examples where providing liability information to
PRPs has been critical to achieving settlement. The types of
information given to PRPs in these cases have ranged from simply
identifying documents upon which a waste-in list or volumetric
ranking was, or will be, based to providing copies of manifests
or disposal site log-books.
To make the information release process efficient and
effective, information release should be included in PRP search
and negotiation planning. In addition, it is strongly
recommended that information collected by the Agency be
analyzed for its potential release periodically during collection
and not later when time constraints may be greater. This early
focus on releasing information may encourage improvements in our
information gathering and investigation practices and result in
the earlier and greater release of information to facilitate PRP
organization and enhance prospects for settlement.
Considering the resource demands upon the Agency in
organizing, reviewing and controlling releases of information,
facilitating release does not necessarily mean that we initiate
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OSWER Directive 9835,12
the releases of information1, although in many cases initiating
release may in the long run save resources and promote PRP
organization. Whether we initiate release or respond to
requests, it may be valuable, through discussions with PRPs (or
other requesters), to identify more specifically what the actual
PHP information needs are in a particular case. Such discussions
can also involve developing a release process that reduces
resource demands and ensures widespread dissemination of the
information.
Policy
Information about PRP liability at a CERCLA site should
normally be available to all PRPs (and other members of the
public) unless there are countervailing legal, policy, or
strategy reasons not to make such information available. In the
case of confidential business information, the Agency must
withhold information from PRPs, For other information, such as
that subject to the deliberative process, attorney-client or
attorney work-product privileges or that falling within the law
enforcement records exemption under the Freedom of Information
Act, release may be appropriate after the documents have been
screened by legal counsel to determine whether the documents are
privileged and the implications of waiving any such privilege.
Decisions to release or withhold information that will facilitate
settlement, whether or not upon request, should be made case-by-
case and should ensure that such information is not unnecessarily
withheld.2
The "Interim CERCLA Settlement Policy11 states that the
release of information to PRPs will generally be conditioned on a
reciprocal release of information by PRPs. The Agency does not,
however, believe that reciprocal release should be the uniform
policy. Such a policy might unnecessarily restrict the release
of information where, for example, liability information
possessed by the Agency might encourage a non-responding PRP to
Note that if Regions use the special notice procedures
of CERCLA section 122(e)(l), the Region must release, to the extent
available, the names and addresses of other PRPs, a waste-in list
and a volumetric ranking,
2 For example, early results from PRP searches about a
limited number of PRPs may, in some cases, have little effect on
encouraging PRPs to coalesce as a group and not outweigh litigation
risks associated with releasing the information. On the other
hand, release of the information in certain cases might help create
a core group to deal with some immediate problems at a site, thus
changing the balance in favor of release.
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OSWER Directive 9835,12
cooperate with other PRPs and thereby promote group settlement
with the Agency. Thus, a blanket policy for reciprocity might
limit desirable flexibility, and the release of some information
to non-responding PRPs may be appropriate in certain
circumstances. Given considerations such as these, the release
of information to PRPs is to be decided case-by-case.
This change from the "Interim Settlement Policy" is not
meant to imply that there may not be sound reasons for
withholding liability information from PRPs under some
circumstances. The change is meant only to help ensure that the
appropriate action is taken in each case and that decisions are
made on a case-by-case basis at the Regional level, while
reflecting a general bias in favor of information release. In
addition, this change in no way affects the Agency's use of its
other information gathering authorities. See, "Guidance on Use
and Enforcement of CERCLA Information Requests and Administrative
Subpoenas," August 25, 1988, OSWER Dir. 9834.4A, and "Final Model
Litigation Report for CERCLA Section 104(e) Enforcement
Initiative," (Office of Enforcement and Compliance
Monitoring/Office of Solid Waste and Emergency Response, January
31, 1990).
For more information on this policy, contact Rick Colbert,
OWPE, at FTS 382-4015 or Douglas Dixon, OECM-Waste, at FTS 475-
8212.
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