United States
Environmental Protection
Agency
Office of Enforcement
and Compliance Assurance
Office of Site Remediation Enforcement
EPA330-K-09-001A
September 2009
&EPA PRP Search Manual
Prepared for:
Personnel Performing PRP Searches
-------
Ef^™"1'' Publication # EPA 330-K-09-001A
(November 2011)
Addendum to the
EPA PRP Search Manual
November 2011
The purpose of this addendum is to inform users of the EPA PRP Search Manual (September
2009) of three recent guidance documents that address Superfund potentially responsible party
(PRP) search issues. These documents were developed by EPA's Office of Site Remediation
Enforcement in response to recommendations made by EPA's Office of Inspector General in the
report EPA Needs to Improve Internal Controls to Increase Cost Recovery (October 7, 2009),
which is available at http://www.epa.gov/oig/reports/2009/20090427-09-P-0144.pdf. These
documents supplement, but do not supersede, the existing contents of the PRP Search Manual.
1. "EPA's Continued Efforts to Enhance CERCLA Cost Recovery" (July 2, 2010).
This guidance document addresses a number of CERCLA cost recovery issues, one of which
relates to documentation of the results of PRP searches. Section VI. ("Appropriately
Document All Costs") discusses close-out memoranda that memorialize decisions not to
pursue cost recovery for removal or remedial costs under CERCLA. The guidance notes
that, in addition to the decision document itself, "the Region should also place in the
permanent site file all supporting documentation, such as an index of all PRP search
documents . . . used in making the decision not to pursue further cost recovery" and the index
should include "the physical or electronic location of the supporting documents."
2. "PRP Search Documentation Summary Requirements for Decision Documents to Not
Pursue Cost Recovery Where Unaddressed Past Costs Are Greater Than $200,000"
(March 8, 2011).
o Attachment A: "PRP Search Reference Summary"
o Attachment B: "PRP Search Activities Verification Form"
This guidance document "establishes standard and mandatory PRP search documentation
requirements to be included in Decision Documents . . . memorializing the Agency's
determination to not pursue cost recovery, where total unaddressed past costs are greater than
$200,000." The guidance identifies minimum PRP search documentation requirements and
provides as attachments: (a) the "PRP Search Reference Summary," which can be used to
document PRP search tasks that were completed and where the results are located; and (b)
the "PRP Search Activities Verification Form," which can be used to attest that all
reasonable PRP search tasks have been completed to support the decision not to pursue cost
recovery. The guidance also provides that the regions may use alternative methods of
documenting a PRP search and its results, provided that they meet key requirements
identified in the guidance.
-------
3. "Transmittal of preliminary Potentially Responsible Party Search Completion'
Measure Definition for Incorporation into the Superfund Program Implementation
Manual for FY2012" (June 23, 2011).
o Attachment: "Preliminary Potentially Responsible Party Search Completion
Definition and Documentation/Reporting Requirements"
This memorandum transmitted the final text of a new "Preliminary PRP Search Completion"
Superfund enforcement program measure to be included in the Superfund Program
Implementation Manual. The measure identifies preliminary PRP search activities "taken to
make an initial identification of PRPs at a site in order to determine if there are PRP(s) that
are able to perform or finance all or a portion of the initial non-emergency CERCLA removal
or remedial response action at a site." A preliminary PRP search is complete when the
following tasks, as described in the measure and where applicable, have been completed and
properly documented: (a) site location and property description; (b) current and past site
ownership identification/notification; (c) site operation identification/notification; (d) site
owner/operator liability/financial viability determination; and (e) arranger/transporter
identification/notification. Alternatively, a preliminary PRP search is deemed complete if the
region has "entered into a settlement with or issued orders to compel the identified PRPs to
perform the initial non-emergency response action at the site" after completing some of the
preliminary PRP search tasks. The measure also defines CERCLIS reporting requirements
for preliminary PRP search completions and requirements for documenting the results of
preliminary PRP searches in the site file, which can be satisfied using the "PRP Search
Reference Summary" format described in the March 8, 2011, "PRP Search Documentation
Summary Requirements" guidance document (which is discussed above).
-2-
-------
'$ UNtTED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
II If ~ 9 iflin OFFICE OF
OUL t £UIU ENFORCEMEHT AND
COMPLIANCE ASSURANCE
MEMORANDUM
SUBJECT: EPA's Continued Efforts to Enhance CERCLA Cost Recovery
FROM: Elliott J. Gilberg, Director Mjjjj^
Office of Site Remediation Enforcement
TO: Regional Counsel, Regions I-X
Superfund Division Directors, Regions I-X
Over twenty years ago EPA issued the Superfund Cost Recovery Strategy ("Strategy"),'
which noted that "cost recovery is one of the highest priorities of the Superfund program." This
is as true today as it was in 1988. Many of the practices set forth in that Strategy and other
relevant guidance are still in use today, and OSRE encourages the continued and enhanced use of
these practices. In addition, we encourage the Regions to look for new ways to increase the
effectiveness of EPA's cost recovery efforts. The purpose of this memorandum is to highlight
some important cost recovery practices, and to encourage Regions to reevaluate their
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA,
commonly referred to as "Superfund") cost recovery programs with an eye toward looking for
areas of potential improvement.
Currently, OSRE is taking steps to reinforce and evaluate areas of the cost recovery
program. We have begun to evaluate Regional cost recovery documentation practices when EPA
decides not to pursue cost recovery and we are examining the types of write-off or close-out
documents (e.g., "Ten Point" summaries) prepared by Regions.3 Our evaluation focuses on the
Regions* justifications for preparing write-off or close-out documents and how the Regions
memorialize their write-off or close-out decisions in these documents. OSRE is also determining
how and where the Regions maintain their decision documents and other related correspondence.
Additionally, OSRE is surveying the Regions for enhanced cost recovery practices that can be
1 Transmittal of the Supcrfiind Cast Recovery Strategy. J Winston Porter, July 29,I 988, OSWER Dir, No, 9832,13,
2 This memorandum is intended solely For the guidance of employees of EPA. It is not a regulation and does not impose legal obligations.
EPA will apply the guidance only to the extent appropriate based on the facts. Nothing in this memorandum supersedes existing guidance
and, as always, the Regions have the discretion to use an approach that has the greatest likelihood of success and will maximize the amount
of recovery.
1 See EPA Needs to Improve internal Controls to Increase Cost Recovery (October 7.20091 (This OIG Report evaluated cost recovery
activities ttt non-NPL removal sites to determine the Agency's internal controls to monitor cost recovery, document PRP searches and
removal milestones, and ensure accurate cost recovery data).
Internet Address (URL) • http://www.epa.gov
H*cycl«l/H*cycIiBle . PriMea wttfi VegaiaWe Oil Based Inks MI fiecyirfe*! P^jer Minimum 29% Pwfcontmmer)
-------
shared with other Regions. OSRE will also work with the Regions on developing sample or
model documents to aid EPA's cost recovery, focusing on areas such as potentially responsible
party (PRP) search documentation, field letters for removal actions, and compromises in
administrative settlements.
I. Appropriate and Aggressive Use of Demand Letters
We encourage the aggressive use of demand letters in all appropriate cases. Often an
initial demand for remedial costs is incorporated in a Special Notice Letter notifying the recipient
of its potential liability as well as providing the recipient with the government's incurred costs to
date and anticipated future costs. As noted in guidance, however, EPA may issue a written
demand letter anytime after costs (removal or remedial) have been incurred under CERCLA.4 In
some instances, it might be appropriate for EPA to issue a "stand-alone" written demand letter.
The most common example is issuing a written demand letter at the conclusion of a removal
action. Not only does a written demand letter create a formal mechanism for the Agency to
recover its costs, but it also initiates the accrual of interest on expended costs.5
In addition, it is not necessary for a Region to anticipate referring a matter to the
Department of Justice (DOJ) in order to issue a written demand letter. The Strategy states, "a
demand letter should be issued . . . where response costs have been incurred under CERCLA
regardless of whether a decision has been made to initiate a judicial proceeding for cost
recovery"6 (emphasis added). It is not a prerequisite that the Region must contemplate referring
a matter to DOJ if payment is not received in order to issue a demand letter.7 Issuing a written
demand letter does not negatively impact the cost recovery program if, at some later date, the
Region decides that it would not be appropriate to refer the matter to DOJ or that it is not an
appropriate use of the Agency's limited resources to negotiate a settlement.8 Nevertheless, if
EPA elects to issue a written demand letter, it must have a reasonable basis for believing the
recipient is a PRP under section 107 and is therefore responsible for EPA's costs under the
statute.
II. Continued Use of CERCLA Section 107(1) Liens
We recommend that Regions routinely use section 107(1) liens to preserve cost recovery
opportunities. Under section 107(1) of CERCLA, a lien exists by operation of law in favor of the
United States at any site at which EPA has spent Superfund monies. The Superfund lien arises
on property subject to or affected by Superfund removal or remedial response actions when EPA
incurs costs for such action and provides written notice of potential liability to the owner of the
property. To perfect the lien, the Region should send the property owner a Notice of Intent to
4 See Written Demand for Recovery of Costs Incurred Under the Comprehensive Environmental Response. Compensation, and Liability Act
(CERCLA), Bruce Diamond, March 21, 1991.
5 See 42 U.S.C. § 9607(a). Demand letters should explicitly state that interest begins to accrue on expended costs at the time of demand.
6 Transmittal of the Superfund Cost Recovery Strategy. J. Winston Porter, July 29, 1988, page 22.
7 In many cases, however, failure to respond to a demand or failure to provide a good-faith offer will result in enforcement action by the
Agency.
8 In fact, in low dollar cases the Region might know early on that it will not refer the matter to the Department of Justice. Nevertheless
issuing a demand might still be appropriate.
-------
Perfect Federal Lien and provide an opportunity for a hearing before a neutral official. If a
hearing is requested, the Region may wait to record the lien after the neutral official has
concluded that the statutory elements for recording the lien have been satisfied. Section 107(1)(3)
of CERCLA provides that if the State has not by law designated an office for receipt of the notice
of the lien, then the notice shall be filed in the office of the clerk of the United States district court
for the district in which the real property is located.
EPA has encouraged the use of CERCLA section 107(1) liens in various guidance
documents.9 Although the Regions expend resources perfecting and maintaining liens, in many
instances a lien is an effective cost recovery tool.10 For example, in one case a bankruptcy court
approved a Stipulation and Order that reimbursed EPA approximately $2.6 million in response
costs from the filing of a lien. The money was disbursed from the proceeds of the sale of the
source property at a Superfund site. EPA received 75% of the property sale proceeds by
advancing an argument that the vast majority of its CERCLA lien took priority over the next
largest claim, a county's real property tax lien, which was filed after EPA's lien arose. EPA
argued its lien had priority because a plain reading of section 107(1)(3) of CERCLA made it clear
that a CERCLA lien is subject only to the rights of purchasers, holders of security interests, or
judgment lien creditors whose interests are filed under applicable State law before notice of the
CERCLA lien has been filed.
Liens provide EPA the opportunity to recover CERCLA section 104(b) investigation and
monitoring costs incurred by EPA regardless of whether an enforcement document is in place.
In addition, filing a lien and demonstrating a willingness to proceed to a lien hearing can
sometimes encourage an uncooperative party to move toward settlement. Finally, at some sites
the only asset is the property and the lien allows the Agency to recover some of its costs once the
property is sold.
III. Using Section 106(a) Unilateral Orders to Preserve Cost Recovery Resources
It is not unusual with a time-critical removal action to initiate the response as a Fund-lead
activity. With a time-critical removal, the necessity to address the release, or threat of release,
initially takes precedence over conducting a PRP search to find a liable party that can perform
the response. Regardless, Regions should initiate a PRP search as early as practicable because it
is vital to identify any viable PRPs that will be able to complete the removal action as a PRP-lead
activity. Regions should routinely assess the possibility of converting Fund-lead removal actions
into enforcement-lead. We encourage the Regions to develop a formal evaluation process for
removal actions that will allow the Regions to reassess the status of liable parties and explore the
option of issuing a section 106(a) order to a liable party to complete the removal action.11 Such
an approach fulfills the "enforcement first" policy of the Agency and allows Regional removal
9 See Guidance on Federal Superfund Liens. Thomas L. Adams Jr., September 22, 1987; Supplemental Guidance on Federal Superfund
Liens, William A. White, July 29, 1993; Use of Federal Superfund Liens to Secure Response Costs, Barry Breen, May 28, 2002.
10 We recognize that in cases where the value of the site property is extremely low and is not likely to appreciate it might not be appropriate to
expend resources perfecting a 107(1) lien.
11 For more on issuing UAOs for time-critical removal actions, see Issuance of Administrative Orders for Immediate Removal Actions. Lee
M. Thomas, Feb. 21, 1984. It should be noted that issuing aUAO is not the only possible option for the Agency. Time permitting, Regions
might find it more beneficial to negotiate an Administrative Order on Consent rather than issue a UAO.
-------
resources to be preserved for other Sites where a viable, liable party is not available to perform
the response.12
IV. Consider Pursuing Costs Where the Total Site Costs are Less Than $200.000
In 1995, EPA issued guidance stating that Regions may prepare an abbreviated Decision
Document for cases where total response costs are less than $200,000.13 Unfortunately, this
brief guidance may have inadvertently given the impression that it is generally not appropriate
for EPA to pursue claims under $200,000. The intent was not to discourage the pursuit of these
smaller dollar claims, but rather to provide the Regions with flexibility to decide how best to
manage smaller dollar claims by using an informal cost-benefit analysis. With very small dollar
claims it will rarely make sound financial sense to perform an extensive and costly PRP search or
to issue numerous demands or information requests. However, considering the numerous and
varied cleanup cases EPA manages, it is very likely that Agency enforcement action would be
appropriate in some cases.14
Additionally, the Agency has become more adept at recovering CERCLA costs due to a
standardized cost recovery approach, and it is now possible to pursue some of these smaller
dollar claims more efficiently. While it is true that the Agency has historically placed, and
continues to place, a higher priority on cost recovery cases over $200,000, there may be other
reasons besides the dollar value of the case to pursue enforcement.15
Since the inception of the Superfund program EPA has recovered nearly $138 million at
sites where total costs were less than $200,000, and we strongly encourage the Regions to
continue pursuing smaller dollar claims whenever appropriate. The standard for pursuing these
smaller dollar claims is the same for any other claim for response costs — the Regions should
weigh the resources needed to recover the costs against the amount that may be recovered, while
considering the likelihood of recovery.16
V. Anticipate and Pre-empt Bankruptcy's Impact on Cost Recovery
Although EPA settlements often allow for "periodic" billing of future response costs, the
Agency strives to bill its costs annually.17 The importance of annual billing has been highlighted
recently by a number of bankruptcy filings involving companies that were historically considered
highly solvent that have extensive environmental liabilities at Superfund sites nationwide.18
12 See Enforcement First for Remedial Action at Superfund Sites. John Peter Suarez and Marianne Lament Horinko, September 20, 2002
(PRPs should conduct removal actions whenever possible, and EPA should pursue enforcement opportunities throughout the Superfund
process).
13 See Cost Recovery Cases Where Site Costs Total Less Than $200.000.00. Bruce M. Diamond, May 12, 1995.
14 For example, when the PRP is known; where the evidence is straightforward and uncontested; and where the PRP is viable.
15 There are some cases, where, even if the enforcement costs to the Agency potentially exceed the estimated recovery, EPA might decide that
it is appropriate to pursue its claim because of an important legal or policy issue or the party's recalcitrance.
16 Interim CERCLA Settlement Policy. Lee M. Thomas, Courtney M. Price, F. Henry Habicht, December 5, 1984.
17 See CERCLA Future Response Costs: Settlement. Billing and Collection. Kenneth Patterson, June 20, 2002.
18 Within the last few years, many companies, including Chrysler, General Motors, ASARCO and W.R. Grace, have filed for protection under
Chapter 11 of the United States Bankruptcy Code.
-------
Sending annual bills in the years prior to a company's bankruptcy filing increases the probability
that the Agency's annually incurred costs would be paid in full by the party before a potential
bankruptcy filing. Once a PRP files for bankruptcy, all of EPA's unpaid response costs are
lumped together in its proof of claim, with the potential that EPA will not recover all if its costs.
As a way of maximizing our recovery of incurred costs, Regions should continue to strive to bill
future response costs annually, recognizing the potential impact any subsequent bankruptcy
filing would have on our recovery.
VI. Appropriately Document All Costs
As noted in the 1988 Cost Recovery Strategy, if a Region decides not to pursue a cost
recovery action for either removal or remedial costs, a decision must be documented in a close-
out memorandum.19 The Region should prepare a similar document in cases where the Agency
has settled either administratively or judicially for less than 100% of costs and does not
contemplate pursuing non-settling parties for the balance of the Agency's unrecovered costs. In
the judicial context, this is typically done in the Ten Point Settlement Analysis that accompanies
the referral to DOJ for entry of the consent decree.20
In the administrative context, it is equally important to perform a similar analysis and
generate a final decision document.21 It is essential for EPA's final decision document to
identify total costs incurred by EPA, noting the amount of costs recovered, and any compromise
of costs, including a justification for the compromise. The final decision document memorializes
the Region's evaluation of the remaining cost recovery potential at the site and its decision to
remove the case from further consideration by the Agency. This documentation should be
retained in the site file so that a Region can easily provide justification for the decision not to
pursue costs in response to any internal or external audit or cost recovery review.22 In addition
to the final decision document, the Region should also place in the permanent site file all
supporting documentation, such as an index of all PRP search documents and financial analyses
used in making the decision not to pursue further cost recovery. The index should include the
title of the final decision document, the date the document was created/finalized and the physical
or electronic location of the supporting documents. The final decision document is enforcement
confidential and should not be included in the administrative record.
Along with preparing the appropriate decision document, the Regions should continue to enter
decision document information in the Comprehensive Environmental Response, Compensation,
and Liability Information System (CERCLIS).23 When entering this information, the Region
19 See Guidance on Documenting Decisions Not to Take Cost Recovery Actions. Jonathan Z. Cannon, June 7, 1988.
20 If the decision not to pursue unrecovered costs is made after the Ten Point is finalized the Region should create a close-out memorandum
that documents the basis of the decision not to pursue unrecovered costs. See Transmittal of the Superfund Cost Recovery Strategy. J.
Winston Porter, July 29, 1988, page 39-40.
21 The name of the final decision document may vary by Region, for example, the "close-out" Memorandum, a "write-off memorandum or a
"decision not to take cost recovery action."
22 Creation of a final decision document to not pursue cost recovery does not bar the Agency from re-opening the case in the event additional
parties or evidence is discovered at a later date. Any subsequent action, however, might be barred by the statute of limitations in
section 113(g).
23 For consistency the CERCLIS justification should be explicitly stated in the closeout document.
-------
will include the appropriate basis for not pursuing costs.24 CERCLIS provides seven possible
justifications for the decision not to pursue costs.25 These are:
(1) No PRPs identified;
(2) No viable PRPs;
(3) Insufficient evidence;
(4) Questionable case;
(5) Insufficient Resources;
(6) Consideration of Response Work; and
(7) Other.
As a point of clarification, "insufficient resources" refers to Regional resources, not PRP
resources, and can only be used in cases where the total costs of response do not exceed
$200,000.26 If a PRP is defunct, bankrupt, or insolvent, the proper category is "no viable PRPs."
"Questionable case" generally refers to a legal impediment to filing a cost recovery action (e.g.,
the statute of limitations has run). "Consideration of Response Work" is for cases where costs
are written off due to consideration of response work that the party has performed at the Site.
The "Other" category should be used sparingly to represent cases that truly do not fall
within one of the other specific categories. When the "Other" category is selected, Regions are
strongly encouraged to use the comment field in CERCLIS to provide additional details of the
decision and avoid the necessity of any additional follow-up to determine the basis of the
decision.
The following CERCLIS data pull shows the approximate use of each category for not
pursuing cost recovery since the inception of the Program:
Justification
No Viable PRP
No PRPs Identified
Questionable Case
Insufficient Evidence
Insufficient Resources
Other
Two or more justifications provided
No justification provided
Percentage of Write-offs
29%
11%
3%
2%
2%
20%
13%
20%
Based on the data, approximately twenty percent of the time, the Regions failed to select
a category or use the comment field in CERCLIS to justify the write-off. Another twenty
percent of the time, the Region selected the "Other" category, but failed to provide a reason in
24 CERCLIS refers to the decision not to pursue costs as a "write-off."
25 Six of the justifications are taken directly from Guidance on Documenting Decisions not to Take Cost Recovery Actions. Jonathan Z.
Cannon, June 7, 1988.
26 See Guidance on Documenting Decisions not to Take Cost Recovery Actions. Jonathan Z. Cannon, June 7, 1988, page 5. If a Region needs
additional resources for a cost recovery case over $200,000 it should contact OSRE for assistance.
-------
CERCLIS for the write off.27 Thus, in roughly forty percent of the cases where costs were
written off, CERCLIS provides no assistance in determining why costs were not pursued.
OSRE recognizes that there are final decision documents for these cases, but without the
additional details as to why the cases fit into the "Other" category, CERCLIS does not provide a
quick and easy way to report why the costs were not pursued. It is important for the Regions to
accurately identify the bases of the decisions not to pursue costs in CERCLIS, as accurate data
entry is critical to a more robust review and analysis of these write-off cases.
VII. Conclusion
This memorandum is the first step in a continuing dialogue with the Regions on
maintaining and improving CERCLA cost recovery. OSRE encourages Regions to revisit
current cost recovery practices and adopt suggestions from this memorandum where appropriate.
In addition, we look forward to working with the Regions to identify opportunities to improve
the efficiency and effectiveness of the cost recovery program. Questions or comments regarding
this document may be directed to David Dowton (dowton.david@epa.gov) 202-564-4228,
Carolyn Lane-Wenner (lane-wenner.carolyn@epa.gov) 202-564-5129 or Ruth Broome
(broome.ruth@epa.gov) 202-564-6077.
cc: Superfund Removal Managers, Regions I-X
Superfund Regional Counsel Branch Chiefs, Regions I-X
Information Management Coordinators, Regions I-X
Stefan Silzer, Director, Office of Financial Management (OFM), OCFO
Rafael Stein, Director, Financial Services Division, OCFO
lantha Gilmore, Director, Program Costing Staff, OFM, OCFO
Meshell Jones-Peeler, Deputy Director, Program Costing Staff, OFM, OCFO
27 Although many of the "Other" or "no reason given" selections in CERCLIS occurred early in the Program, Regions are still selecting
"Other" often enough that it poses a concern.
-------
ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D C. 20460
MAR 8 2011
MEMORANDUM
SUBJECT; PRP Search Documentation Summary Requirements for Decision Documents to Not
Pursue Cost Recovery Where Unaddressed Past Costs are Greater Than $200,000
FROM: Elliott J. Gilberg, Director 'L.'*• *._ u -U. / X (. I,...
Office of Site Remediation Enforcement \
TO; Superfund National Policy Managers, Regions I - X
Regional Counsel, Regions I - X
I. Background/Purpose
In 2009, the Environmental Protection Agency's (EPA) Office of Inspector General (IG)
evaluated cost recovery activities at removal sites not on the National Priorities List (NPL) to
identify EPA's internal controls for monitoring cost recovery, documenting potentially responsible
party (PRP) searches, documenting removal milestones, and ensuring accurate cost recovery data.1
As a result of the evaluation, the IG recommended that EPA's Office of Enforcement and
Compliance Assurance (OECA) develop standard and mandatory PRP search documentation
requirements that Regions would complete as part of the cost recovery decision document (closeout
memo).
OECA agreed with the IG's recommendation. As such, this guidance establishes standard
and mandatory PRP search documentation requirements to be included with Decision Documents
(DD) memorializing the Agency's determination to not pursue cost recovery, where total
unaddressed past costs are greater than $200,000. This will ensure that standard and consistent PRP
search information is available and easily locatable for all situations where EPA issues such decision
documents- Based on this guidance, in the future these decision documents should:
• describe the PRP search activities undertaken for the site,
• summarize the results from those activities,
* include references for all PRP search documents used to make the decision to not
pursue the unaddressed costs, and
* identify where those PRP search documents are located.
1 See EPA Needs to Improve Internal Controls to Increase Cost Recovery (October 7,2009} available at
>' I r 4 I ( 'i (i >RLl • I I | « , • i V
Recycled/RiicyclBble » Pmnmj ,v,th i ,, , Procois Chloric* Hee n,.,.¥.,i=d
-------
The attached documentation tool is intended as a standard format for documenting the PRP
search activities a Region has completed prior to issuing a decision to not pursue cost recovery.
II. Minimum Documentation Requirements
The PRP Search Documentation Reference Summary (hereafter referred to as the Reference
Summary (Attachment A) should include, at a minimum, the following information in order to
sufficiently document the site-specific PRP search activities that were conducted by the Region. The
reference summary should be attached to the PRP Search Activities Verification Form identified
under Section III and/or the cost recovery Decision Document. The minimum PRP search
documentation requirements include:
A. Site name/identifiers
This section includes the official site name, aliases, operable units, and the site-spill identifier
(SSID) from the Integrated Financial Management System (IFMS).
B. Point of Contact
This section includes the name of the individual(s) responsible for the site-specific PRP
search activities at the time the Reference Summary or Regional Alternative, provided for in
Section VII, is completed and verified. The Region should provide the individual's contact
information for follow-up.
C. PRP Search Activities Accomplished
This section includes the title/description of the PRP Search activities completed. The
Reference Summary divides PRP search activities into several major categories based on
those essential tasks defined in Chapter 2 of the PRP Search Manual . Those categories are
further detailed in the Reference Summary and include several mandatory activities relating
to the property owners, site operational history, and liability/viability3 determinations for
identified responsible parties.
D. Activity Completion Date
This section includes the date on which each specific PRP search activity was completed.
This may be the date on which a specific reference document was created or reviewed by the
PRP Search staff person referred to in paragraph B, above.
2 http://www.epa.gov/oecaerth/resources/publications/cleanup/superfund/prpmanual/prp-search-man-cmp-09.pdf
3 In this context, viability relates to the continued existence of a PRP in some form. It does not necessarily include a
formal ability to pay determination.
- 2 -
-------
E. Reference Document Location
This section includes the specific location in the site file, including, but not limited to
Superfund Document Management System (SDMS) index information, folder locations, and
Bates stamping numbers, for documents supporting each PRP search activity listed in the
Reference Summary.
III. PRP Search Activities Verification
The Reference Summary should be attached to either (1) the PRP Search Activities
Verification form or (2) the Decision Document. The subject PRP Search Activities Verification
form or associated Decision Document should contain the site name and the SSID, a
synopsis/summary of the results of the PRP search efforts for the site, or portion of the site in
question. If this information is included in the Decision Document in lieu of a separate PRP Search
Activities Verification form, it should also include the amount of past costs being addressed through
the action. If the PRP Search Activities Verification form is for a portion(s) of a defined site, the
Region should indicate the unique SSID for the subject portion(s), or assign another unique site
identifier to the portion(s) in question.
The PRP Search Activities Verification form should contain a signed statement by the
individual in the Region (e.g., investigator or the investigator's supervisor), responsible for
overseeing PRP search activities at the site (or portion thereof), attesting that sufficient PRP search
tasks have been completed at the site to support the decision to not pursue unaddressed past costs.
The document should be addressed to the person responsible for oversight of PRP search activities in
the Region, as well as to the site file. An example/sample is attached (Attachment B). Once the PRP
Search Activities Verification form is signed, the date of the final signature should be entered into
CERCLIS as the PRP search completion date. After entry into CERCLIS, the signed document
should be added to the official site file.
IV. Scope
The Reference Summary is only required for sites where the Region decides to not pursue
cost recovery and unaddressed past costs are greater than $200,000. Regions may, at their
discretion, choose to use the associated Reference Summary and PRP Search Activities Verification
form as a supporting document when proceeding with Fund-lead remedial action sites, certain Fund-
lead removal actions, as determined by the Regions, and at sites where EPA issues a Decision
Document to not pursue cost recovery less than $200,000.
V. Alternative Methods for Satisfying Guidance Requirements
As an alternative to completing and attaching the "PRP Search Reference Summary" and
associated PRP Search Activities Verification form, Regions may include a formal PRP Search
Report to satisfy the requirements of this guidance, provided that the report contains a detailed
summary/bibliography of the documents cited in the report. If the documents cited in the formal
- 3 -
-------
PRP Search Report are included in the report or its appendices, this shall be deemed sufficient to
satisfy the requirements of this guidance. The PRP Search Report should be annotated to identify
the physical or electronic location of the documents referenced in the report.
In addition, should the Region have an alternative mechanism that meets the key
requirements of the Reference Summary and associated PRP Search Activities Verification form,
such as the 10-point settlement analysis, it may use that mechanism as an alternative to the examples
provided in this guidance. Questions concerning whether the alternative mechanism meets the
requirements of this guidance should be directed to the OSRE Leader, National PRP Search
Enhancement Team.
VI. Prior Applicable Guidance
EPA has previously issued the following guidance and policy memoranda that address
Superfund cost recovery and what is required of EPA when it makes a decision to not pursue cost
recovery which remain pertinent and relevant today.
- Superfund Cost Recovery Strategy (J. Winston Porter, July 29, 1988) available at
http://www.epa.gov/compliance/resources/policies/cleanup/superfund/cost-recover-
mem.pdf:
- Guidance on Decisions not to Take Cost Recovery Action (Jonathan Z. Cannon,
June 7, 1988) (attached); and
- Cost Recovery Cases Where Site Costs Total Less Than $200,000 (Bruce M.
Diamond, May 12, 1995)
http://www.epa.gov/compliance/resources/policies/cleanup/superfund/costrecovcase-
mem.pdf.
These three guidance documents address, among other subjects: (1) when it is appropriate to make a
decision to no longer pursue cost recovery; (2) what types of PRP search activities should generally
be performed prior to making a decision to not pursue cost recovery; (3) how to document the basis
for decisions to not pursue cost recovery; and (4) the universe of sites/cases that are subject to PRP
search and documentation requirements. This guidance document supplements the above referenced
documents. This guidance does not supersede the above referenced documents or affect existing
requirements related to preparation of 10-point settlement analyses for CERCLA judicial
enforcement actions.
-------
VII. Enforcement Confidentiality
The attached Reference Summary and any associated documents (or alternative documents
used to meet these requirements), once completed and submitted to the site file, should be evaluated
by the Region on a case by case basis to determine if they should treated as "enforcement
confidential" and therefore not to be released under FOIA.
VIII. Contact Information
If you have any questions, please contact Bruce Pumphrey or Nancy Deck of the Program
Evaluation and Coordination Branch, at 202-564-4222 or 202-564-6039, respectively.
Attachments
cc: National PRP Search Enhancement Team
Superfund Regional Counsel Branch Chiefs
Monica Gardner
Kenneth Patterson
Benjamin Lammie
Helena Healy
Reference Summary Guidance Development Team
- 5 -
-------
Attachment A
PRP Search Documentation Reference Summary
for Decision Documents to Not Pursue CERCLA Cost Recovery
Site/Case Identification Information
Site Name:
Operable Unit (Where appropriate):
Site Spill Identifier:
Enforcement/Cost Recovery Contact Name:
Site Attorney Name:
Prior Site Enforcement/Cost Recovery Contact:
Amount Covered by Decision Document (direct and Indirect Costs):
Basis for not pursuing cost recovery:
No PRPs Identified at the site
PRPs Identified in Search Not Financially Viable
Available evidence does not support one or more elements of a prospective case
Pursuit of costs is not justified. Cost of pursing cost recovery will exceed likely
cost recovery and/or documented response costs
Legal case is so questionable that cost recovery should not be pursued
Limited Agency resources are being directed at higher priorities.
Other Reasons (please describe)
PRPs Investigated:
Name
Current
Owner/
Operator
Owner/
Operator at
Disposal
Arranger
Transporter
-------
Attachment A
PRP Search Documentation Reference Summary
for Decision Documents to Not Pursue CERCLA Cost Recovery
A. Information Collection/Associated Party ID
Al - Property Ownership (Mandatory)
A2 - Operational History (Mandatory)
A3 - Waste Contribution/Other Party ID
A4 - Transporter Identification
A5 - Other Investigative Information
A6 - Ground Water- Specific Party Information
A7 - Mining-Specific Party Information
B. Liability Evaluation (Mandatory)
C. PRP Contribution Evaluation (as appropriate)
D. PRP Financial Viability/ATP/Insurance
E. PRP Notification
F. Other Site Specific PRP Analysis (as determined necessary
by Region)
Applicable
(Y/N?)
Completed
(FY/Q)
-------
Attachment B
PRP Search Activities Verification Form
for Decision Documents to Not Pursue CERCLA Cost Recovery
Date:
Subject: Verification of PRP Completion for Site Name/SSID site located in
(City/State)
From: Site Enforcement/Cost Recovery Specialist (or other Regional designee)
To: Designated Regional Official/Site File
The purpose of this memorandum is to verify that as of (Date) attesting that all reasonable
PRP search tasks have been completed at the site in support of the Regional decision not to
pursue cost recovery, heretofore referred to as the "Decision Document," in the amount of
$ (Decision Document Amount Addressed) dated (Date Decision Document signed by
designated Regional Official).
Attached is the PRP Search Reference Summary or Regional Alternative which list all PRP
search documents that were used in making this determination and their respective location.
Questions regarding this verification or the contents of the attached reference summary
should be address to the Site Enforcement/Cost Recovery specialist for this site.
-------
.sss
UNITE'J Sl'-'t!- ENVIRONMENTAL
D C 20460
JUN 23
MEMORANDUM
SUBJECT: Transmittal of "Preliminary Potentially Responsible Party Search Completion"
Measure Definition for Incorporation into the Superfund Program Implementation
Manual for FY2012
FROM: Elliott J, Gilberg, Director i a« X-t - J -^ ^ •«. . t
Office of Site Remediation Enforcement *
TO: Superfund National Policy Managers, Regions I — X
Superfund Regional Counsel Branch Chiefs, Regions I - X
Attached is the "Preliminary Potentially Responsible Party (PRP) Search Completion"
guidance document which describes preliminary search activities for identifying PRPs related to a
site. This document also provides guidance on how to properly document the activities conducted in
order to determine if there are PRPs to perform, or finance, all or a portion of the initial non-
emergency CERCLA removal or remedial response action at a site. The guidance contained in this
document will be incorporated as a reporting measure into the Superfund Program Implementation
Manual (SPIM) for implementation beginning in FY2012.
The "Preliminary PRP Search Completion" measure was developed in response to the Office
of Inspector General(OlG) Evaluation Report titled "EPA Needs to Improve Internal Controls to
Increase Cost Recovery," Report Number; 09-P-0144, dated April 27,2009. The OIG recommended
that the Assistant Administrator for the Office of Enforcement and Compliance Assurance (OECA)
develop and implement a control to "monitor the status and timeliness of PRP searches at non NPL
sites," OECA agreed with the recommendation and worked with the Regions, via the National PRP
Search Enhancement Team, Superfund Policy Managers and Office of Regional Counsel Superfiind
Branch Chiefs to develop the measure. "Preliminary PRP Search Completions" will be tracked in
CERCLIS to help EPA determine if basic PRP search activities have been completed and if they led
to timely PRP response and/or cost recovery actions. When developing the measure, our focus was
to ensure that the completion of the activities outlined in the guidance would maximize the
opportunity for PRP response while not causing undue delays in initiating a timely Fund or PRP-lead
initial "non-emergency" response action at a site.
-------
Regions are expected to begin reporting "Preliminary PRP Search Completions" beginning in
FY2012 for NPL and non-NPL sites where a non-emergency removal or remedial response action is
expected at a site. The Preliminary PRP Search enforcement action is being added to CERCLIS and
will be available for update beginning in FY2012. Should you have any questions or concerns,
please contact Bruce Pumphrey of my staff at 202-564-4222 or via e-mail at
pumphrey.bruce@epa.gov.
Attachment
cc: National PRP Search Enhancement Team
Monica Gardner
Karin Leff
Benjamin Lammie
Helena Healy
-------
Attachment
Preliminary Potentially Responsible Party
Search Completion Definition and Documentation/Reporting Requirements
Definition: "Preliminary PRP Search Completion:" the completion of certain activities
taken to make an initial identification of PRPs at a site in order to determine if there are
PRP(s) that are able to perform or finance all or a portion of the initial non-emergency
CERCLA removal or remedial response action at a site.
The Preliminary PRP Search will be considered complete when the Regions perform the
PRP Search tasks steps outlined in section 1 or 2 below.
1. Regions have completed and properly documented PRP Search tasks A-E, below,
as appropriate and practicable.
A. Site Location and Property Description
The Region has, as thoroughly as possible, identified the site location (including
one or more of the following: street address; parcel ID#; legal description from
current deed of ownership; and/or tax map) as necessary to complete requirement
l.B. below.
B. Current and Past Site Ownership Identification/Notification
The Region has, using the tools most appropriate for the site, conducted activities
to identify current site owners as well as past site owners at the time of disposal of
hazardous substances and where those site owner PRPs exist and can be located
within a reasonable time, considering the exigencies of the situation, the Region
has provided verbal notice and/or issued General Notice Letters to those parties
the Region determines to be liable and capable of performing the initial response
action at the site1. In addition, as a part of this task, Regions have obtained
information necessary to secure site access in order to allow for performance of
the initial non-emergency response action at the site.
C. Site Operation Identification/Notification
If the operator(s) of the site/facility that caused the release or threat of release of
hazardous substances are different from the site/facility owner(s) at the time of
disposal, the Region has undertaken PRP Search activities necessary to identify
site/facility operators and where those site operator PRPs exist and can be located
within a reasonable time, considering the exigencies of the situation, the Region
has provided verbal notice and/or issued General Notice Letters to those parties
the Region determines to be liable and capable of performing the initial non-
1 Regions may decide not to provide notice to certain liable and capable parties identified under tasks IB,
1C, and IE,, but should document the basis for such decisions to the site file through such mechanisms as
the Removal Action Memo Enforcement Addendum or the RI/FS Enforcement Decision Document.
-------
emergency response action at the site
D. Site Owner/Operator Liability/Financial Viability Determination
For each party identified under A., B. or C. of this section, the Region has
determined, based on publicly available information whether: (1) the party may be
liable under Section 107(a) of CERCLA; and (2) the party may be financially
capable of performing or paying for all, or a portion of, the initial non-emergency
response action at the site.
E. Arranger/Transporter (A/T) Identification/Notification
The Region has determined, based on readily available information such as site
records, that either (1) no A/T PRPs appear to exist at the site or (2) there are A/T
PRPs at the site, and the Region has provided verbal notice and/or issued General
Notice Letters to those A/T PRPs initially identified through such information
who the Region determines to be liable and capable of performing the initial non-
emergency response action at the site and determined that, to the extent that A/T
PRPs exist, additional PRP search efforts may be required.
OR
2. The Region has completed all, or a portion of, the above PRP Search tasks and
entered into a settlement with or issued orders to compel the identified PRPs to
perform the initial non-emergency response action at the site.
Reporting and requirements for documentation of Preliminary PRP Search
Completion
If the Region has satisfied the Preliminary PRP Search Completion requirement by
satisfying the tasks identified in Section 1, above, the Region should document this
accomplishment in CERCLIS and in the site file. The documentation of the Preliminary
PRP Search Completion for the site file should include a summary of the PRP Search
tasks completed for each site. Such documentation can follow the format referenced in
the January 2011 PRP Search Reference Summary guidance document, or the Region can
follow a format already established, as long as it documents the Preliminary PRP Search
Completion tasks performed and results (e.g., Removal Action Memorandum
Enforcement Addendum, RI/FS Enforcement Decision Document as outlined in the 2005
RI/FS Guidance, OSWER Directive 9355.2.21(August 9, 2005)). The date that the
documentation summarizing the PRP search tasks is created should be recorded as the
completion date of the Preliminary PRP Search Completion milestone in CERCLIS.
If the Region has satisfied the Preliminary PRP Search Completion requirement by
performing the tasks identified in Section 2., above, the date of the enforcement
action/settlement to compel the initial non-emergency response action at the site should
be recorded in CERCLIS. That date should also be used as the completion date of the
-------
Preliminary PRP Search Completion milestone in CERCLIS, while not required, Regions
may also want to document the PRP search activities accomplished prior to meeting the
requirements in section 2 in the site file, through the use of the PRP Search
Documentation Summary or other Regional mechanism.
-------
United States Environmental Protection Agency
Washington, D.C. 20460
September 30, 2009
Office of Enforcement and Compliance Assurance
MEMORANDUM
SUBJECT: Transmittal of the 2009 PRP Search Manual
FROM: Elliott Gilberg, Acting Director /s/
Office of Site Remediation Enforcement
TO: Superfund National Policy Managers (Regions I - X)
Regional Counsel (Regions I - X)
I am pleased to announce the distribution of the 2009 PRP Search Manual. This manual
supersedes the PRP Search Manual of September 2003.
The manual was written by Agency subject-matter experts who are involved in the PRP
search process, and the National PRP Search Enhancement Team. Their collective effort has
resulted in a useful tool that enhances the PRP search process. Procedures and information
contained in the manual are based on current, existing EPA policy and guidance. For the user's
convenience, any references and/or guidance documents mentioned in the manual are supported
by a web site address or hard copy.
The manual is a working document intended to provide information to persons involved in
the PRP search process. Users are encouraged to provide comments regarding the manual to one
of the National PRP Search Enhancement Team members listed below.
Hard copies are being provided to team members to distribute in their regions. The team
is pleased also to be distributing the manual to state and tribal peers who are involved in
enforcement and PRP search activities.
-------
If you have any questions or comments regarding this manual, please contact Nancy
Deck at (202) 564-6039 (deck.nancy@epa.gov) or a PRP Search Enhancement Team member.
PRP Search Enhancement Team Members
Region 1 James Israel
Region 2 Carol Berns
Region 3 Carlyn Prisk
Region 4 Herb Miller and Blake Sterling
Region 5 Gladys Watts, Fouad Dababneh,
and Tom Marks
Region 6 Courtney Kudla and Robert Werner
Region 7 Cheryle Micinski and Norma Tharp
Region 8 Mike Rudy
Region 9 Monika O'Sullivan
Region 10 Susan Haas and Grechen Schmidt
HQ: Nancy Deck, Team Leader
Monica Gardner, Manager Advisor
Clarence Featherson
Eric French
Stephen Keim
cc: Bruce Gelber, DCO
John Michaud, OGC
Sandra Connors, OSRE
Ken Patterson, OSRE
Karin Leff, OSRE
Ann Pontius, OSRE
Monica Gardner, OSRE
David Kling, FFEO
-------
Preface
The PRP Search Manual provides an overview of the PRP search process, identifies tools for
finding PRPs early in the process, and provides a framework for conducting thorough PRP
searches that identify the universe of PRPs and gather comprehensive evidence of liability.
It provides an outline of the general objectives of the PRP search, describes typical baseline
and follow-up PRP search tasks, and provides specific tools and references from which the
user may select those most appropriate for a particular search or site.
The manual may be used at sites where PRP searches are planned, where PRP searches are
ongoing, and where the PRP search is considered sufficiently complete to pursue a response
or cost recovery enforcement action or determine that no liable, viable PRPs exist. It is
designed primarily as a reference tool for EPA, state, and tribal staff members involved in
PRP searches, and is not intended to circumscribe or limit the legitimate investigative
activities and inquiries of experienced PRP search personnel.
The manual includes four chapters:
Chapter 1
Overview of CERCLA and PRP Searches presents an overview of CERCLA and CERCLA
liability, PRP search information, and general information about how and why the Agency
gathers, exchanges, and manages PRP search information.
Chapter 2
PRP Search Planning describes potential roles and responsibilities of parties involved
in PRP searches, factors that should be considered in search planning, and opportunities
for PRP input to the search process.
Chapter 3
Baseline PRP Search describes tasks most often performed during the initial PRP
search.
Chapter 4
Follow-up PRP Search describes more specialized tasks that may be employed during
a follow-up to the baseline phase of the PRP search.
NOTE: The PRP Search Manual's electronic version is
available at EPA's Internet site
http://www.epa.gov/compliance/cleanup/superfund/prp
manual.html. Future updates will also be posted at this
Internet address.
-------
Acknowledgments
The PRP Search Manual was prepared by the Office of Site Remediation Enforcement in
EPA's Office of Enforcement and Compliance Assurance. The manual is the result of a
collective effort by the National PRP Search Enhancement Team and representatives from
various headquarters and regional offices. Nancy Deck served as EPA's Project Manager
and Monica Gardner as Management Advisor. The culmination of this teamwork is a manual
that serves as a reference document and covers all aspects of the PRP search process.
Many persons, too numerous to name, provided significant input in the development and
review of the manual, and our appreciation and thanks go to them for their contributions.
National PRP Search Enhancement Team
James Israel (Region 1); Carol Berns (Region 2); Carlyn Prisk (Region 3); Herb Miller and
alternate Blake Sterling (Region 4); Gladys Watts, Fouad Dababneh, and Tom Marks
(Region 5); Courtney Kudla and alternate Robert Werner (Region 6); Cheryle Micinski, and
alternate Norma Tharp (Region 7); Mike Rudy (Region 8); Monika O'Sullivan (Region 9);
Susan Haas and alternate Grechen Schmidt (Region 10); Clarence Featherson, Eric French,
Stephen Keim, Nancy Deck (Team Leader), and Monica Gardner (Manager Advisor), Office
of Site Remediation Enforcement.
Headquarters Contractor: DPRA Incorporated
-------
Disclaimers
This manual supersedes the PRP Search Manual of September 2003 published by the
U.S. Environmental Protection Agency's Office of Enforcement and Compliance
Assurance, Office of Site Remediation Enforcement.
The policies, methods, and procedures set forth in this manual, and internal
government procedures adopted to implement them, are intended as guidance for U.S.
Environmental Protection Agency and other government employees. They do not
constitute rulemaking by the Agency and may not be relied on to create a substantive
or procedural right or benefit enforceable by any other person. The government may
take action at variance with the policies, methods, and procedures in this manual.
When the term "generator" is used in this manual, it is not used in its most
commonly understood sense, i.e., "a party that creates a material." The term has a
broader meaning under the Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA). Refer to subsection 1.2.4, "Categories of Potentially
Responsible Parties," which states that it is commonly used to designate an entity that
generated a hazardous substance or arranged for its disposal or treatment. Thus the
term "generator" can encompass corporations that have entered into disposal
contracts, waste brokers, and corporate officers who are involved in, or responsible
for, waste disposal.
-------
PRP Search Manual
September 2009
1.0
Overview of CERCLA and PRP Searches ... .... 1
1.1 Overview of CERCLA 1
1.1.1 Overview of the Superfund Cleanup Process 2
1.1.2 Overview of CERCLA Enforcement 4
1.1.3 Objectives of the PRP Search 5
1.2 CERCLA Liability 6
1.2.1 Categories of Potentially Responsible Parties 6
1.2.3 Strict Liability 14
1.2.4 Joint and Several Liability 15
1.2.5 Statutory Defenses to CERCLA Liability 16
1.2.6 Statutory Exemptions and Protections from CERCLA Liability 19
1.2.7 EPA Enforcement Discretion Policies 27
1.3 PRP Notification of Potential Liability 33
1.3.1 General Notice Letters 34
1.3.2 Special Notice Letters 35
1.3.3 Types of Settlements 37
References 38
Chapter 1: Overview of CERCLA and PRP Searches
-------
PRP Search Manual
September 2009
2.0 PRP Search Overview 42
2.1 Roles and Responsibilities 44
2.1.1 PRP Search Team 45
2.1.2 Opportunities for PRP Input 52
2.2 PRP Search Plan 56
2.2.1 Timing and Duration 59
2.3 Information Disclosure Issues 70
2.4 Document Filing and Retention Issues 78
2.4.1 Document Management 79
2.4.2 CERCUS/WasteLAN[[[ 79
References.
.81
-------
PRP Search Manual
September 2009
3.0 Baseline PRP Search 83
3.1 Review Files and Collect Records 83
3.1.1 Federal Files 84
3.1.2 State Files 86
3.1.3 Local Government Files 87
3.1.4 Other Records 89
3.1.5 Special Planning Considerations 90
3.2 Organize Records and Track Correspondence 95
3.2.1 Organization 95
3.2.2 Correspondence Tracking 98
3.3 Issue Information Requests 99
3.3.1 Identify Recipients/Draft Information Requests 101
3.3.2 Mail and Track Information Requests 117
3.3.3 Analyze Responses 119
3.3.4 Develop Response Summaries 121
3.3.5 Information Request Followup 121
3.4 Conduct Interviews 123
3.4.1 Interview Considerations 123
3.4.2 Who Performs the Interview 127
3.4.3 Identifying Interviewees 129
3.4.4 Conducting Interviews 132
3.4.5 Interview Documentation 136
3.5 Perform Title Search 139
3.5.1 Determine Ownership Interests 140
3.5.2 Develop a Title "Tree" or Chronology 146
3.5.3 Additional Uses for Title Documents 148
3.5.4 Updating Title Information 148
3.6 Business Status and Financial Research 149
3.6.1 Introduction 149
3.6.2 Forms of Business Organization 150
3.6.3 Person 150
3.6.4 Business Organization 151
3.6.5 Sole Proprietorships 151
3.6.6 Partnerships: General Partnerships and Limited Partnerships 152
3.6.6.A Elements Specific to a General Partnership 153
3.6.6.B Elements Specific to a Limited Partnership 154
3.6.7 Corporations 155
3.6.7.A Elements Unique to Corporations 156
3.6.7.B Classification of Corporations 157
Chapters: Baseline PRP Search
-------
PRP Search Manual
September 2009
3.6.7.C Evolution of Corporations 159
3.6.7.D Sale of Stock in a Corporation 161
3.6.8 Indemnification Agreements 162
3.6.9 Other Entities 163
3.6.10 Additional Liability Theories 165
3.6.10.A Direct Liability of a Person as an Operator or as a Person Who Arranged for
Disposal or Treatment of Hazardous Substances 166
3.6.10.B Corporate Officers, Directors, Shareholders, or Employees 166
3.6.10.C Liability of Parent and Affiliated Corporations 167
3.6.10.D Elements of Direct Liability 168
3.6.10.E Piercing the Corporate Veil 170
3.6.10.F Successor Liability 173
3.6.11 Financial Research 177
3.6.11.A Corporation and Partnership Filings Required by States 177
3.6.11.B Court Filings 178
3.6.11.C Federal Sources 178
3.6.11.D Corporate Directories Summary 178
3.6.11.E Credit Reporting and On-Line Services 179
3.7 Develop Site 179
3.8 Compile Waste-In Information 181
3.8.1 Transactional Databases 182
3.8.2 Waste-In Lists and Volumetric Rankings 184
3.9 Classify PRPs 190
3.9.1 Identify PRPs 190
3.9.2 Define PRP Category 192
3.10 Prepare Baseline PRP Search Report 193
3.10.1 Report Format and Content 194
3.10.1.A Deliverable 1: Site Chronology and Property History 195
3.10.1.B Deliverable 2: PRP Synopsis 195
3.10.2 Report Review and Distribution 196
References 200
Chapters: Baseline PRP Search
-------
PRP Search Manual
September 2009
EPA SUPSRFUKC StTE
.
«MKA WOOD
4.0 Follow-up PRP Search 202
4.1 Issue Follow-up Information Request Letters 203
4.2 Compel Compliance with CERCLA Section 104(e) 205
4.3 Issue Administrative Subpoenas 208
4.4 Perpetuate Testimony Using Rule 27 211
4.5 Perform Ability To Pay Determinations 213
4.5.1 General Policy on Superfund Ability To Pay Determinations 214
4.5.2 ATP Information Sources 216
4.5.3 Performing Property Appraisals 222
4.6 Perform Insolvent and Defunct Determinations 225
4.6.1 Definition 225
4.6.2 Insolvent and Defunct Determinations 226
4.7 Perform Waste Stream Analyses 231
4.7.1 Industrial Surveys 231
4.7.2 Process Chemistry Analysis 231
4.7.3 Waste Stream Inventory 232
4.7.4 Mine Sites 232
4.8 Interim-Final Report Preparation and Review 233
4.8.1 Interim-Final Report Followup 234
4.9 Pursue Litigation and Cost Recovery 234
References[[[^^
-------
PRP Search Manual
September 2009
1.0
Overview of CERCLA and PRP Searches ... .... 1
1.1 Overview of CERCLA 1
1.1.1 Overview of the Superfund Cleanup Process 2
1.1.2 Overview of CERCLA Enforcement 4
1.1.3 Objectives of the PRP Search 5
1.2 CERCLA Liability 6
1.2.1 Categories of Potentially Responsible Parties 6
1.2.3 Strict Liability 14
1.2.4 Joint and Several Liability 15
1.2.5 Statutory Defenses to CERCLA Liability 16
1.2.6 Statutory Exemptions and Protections from CERCLA Liability 19
1.2.7 EPA Enforcement Discretion Policies 27
1.3 PRP Notification of Potential Liability 33
1.3.1 General Notice Letters 34
1.3.2 Special Notice Letters 35
1.3.3 Types of Settlements 37
References 38
Chapter 1: Overview of CERCLA and PRP Searches
-------
PRP Search Manual
September 2009
1.0 Overview of CERCLA and PRP Searches
1.1
Overview of
CERCLA
IIAZAI1IHIIIS H'ASTESUE
Illl SIIT ENTEIi
TOXIC SIMISTAMES >U» BE
IMIESESL VHIUTIIIIS SUBJECT:
TO LIABILITY. Fllll FIIIITIIEB
IKFIHIMATIIIX i:n»T«T:
The objective of the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) as amended by the
Superfund Amendments and Reauthorization Act (SARA) (see
Chapter 1 References, p. 38) is to reduce and eliminate threats to
human health and the environment posed by uncontrolled
hazardous waste sites. To meet this objective, CERCLA created:
• a hazardous waste site response program; and
• a comprehensive liability scheme that authorizes the
government to hold persons who caused or contributed to
the release of hazardous substances liable for the cost or
performance of cleanups.
In enacting CERCLA, Congress authorized the President or the
delegated federal agency to draw funds from a revolving trust fund
called the Hazardous Substance Superfund ("Superfund," "Trust
Fund," or "Fund") to respond to releases or threatened releases of
hazardous substances.1
CERCLA provides EPA with three basic options for cleaning up a
hazardous waste site:
• Under CERCLA Sections 104 and 107, EPA can perform a
response action at the site using Superfund money and
recover response costs from potentially responsible parties
(PRPs).
• Under CERCLA Section 106, EPA can order, or ask a court to
order, PRPs to clean up the site.
1 The petroleum and chemical feed stocks tax and the environmental income tax (HIT)
along with funds from general revenues funded the Superfund. These taxes have not been levied
since the end of 1995 when the taxing authority expired. The Superfund program is currently
funded primarily through annual appropriations of general taxpayer dollars.
Chapter 1: Overview of CERCLA and PRP Searches
1
-------
PRP Search Manual
September 2009
Under CERCLA Section 122, EPA can enter into settlement
agreements with PRPs that require PRPs to clean up the site
or reimburse the United States for cleanup under CERCLA
Section 107.
1.1.1
Overview of the
Superfund
Cleanup Process
CERCLA Section 104(a) authorizes the President to respond to a
release or substantial threat of release to the environment of a
hazardous substance or a pollutant or contaminant. Also, CERCLA
Section 104 authorizes the President to address hazardous waste
sites through removal and remedial response actions. By executive
order, EPA and other federal agencies have been delegated
authority to undertake these response actions. EPA also has
responsibility for overseeing all response actions at sites on the
National Priorities List (NPL), a list of the nation's most
contaminated sites.
EPA may respond to a release or substantial threat of release into
the environment of any hazardous substance; EPA may also
respond to a release or substantial threat of release into the
environment of any pollutant or contaminant provided that the
release may present an imminent and substantial danger to public
health or welfare.
"Removal" is defined in CERCLA Section 101(23) as "the cleanup or
removal of released hazardous substances from the environment,
such actions as may be necessary taken in the event of the threat
of release of hazardous substances into the environment, such
actions as may be necessary to monitor, assess, and evaluate the
release or threat of release of hazardous substances, the disposal
of removed material, or the taking of such other actions as may be
necessary to prevent, minimize, or mitigate damage to the public
health or welfare or to the environment, which may otherwise
result from a release or threat of release." CERCLA Section
104(c)(l), however, limits Fund-financed removal actions by both
time and cost. Without a case-specific waiver, Trust Fund money
may only be used to finance removal actions for up to one year and
Chapter 1: Overview of CERCLA and PRP Searches
2
-------
PRP Search Manual
September 2009
up to $2 million. A waiver of the time or cost limits may be issued
to abate an emergency or allow removal activity that is consistent
with further remedial action at the site. Issuance of such
"consistency" waivers requires that a site be proposed for or listed
on the NPL.
"Remedial action" is defined in CERCLA Section 101(24) as "those
actions consistent with permanent remedy taken instead of or in
addition to removal actions in the event of a release or threatened
release of a hazardous substance into the environment, to prevent
or minimize the release of hazardous substances so that they do
not migrate to cause substantial danger to present or future public
health or welfare or the environment."
CERCLA Section 104 limits the use of Superfund money for
remedial actions to sites meeting the following three conditions:
• The site is listed on the NPL.
• The state in which the site is located either contributes or
provides financial assurances for 10 percent of any remedial
costs incurred by Superfund and all operation and
maintenance (O&M).
• The remedial action is not inconsistent with the National Oil
and Hazardous Substances Pollution Contingency Plan.
EPA may perform a removal, site investigation, or remedial design,
or enforce a remedial action at a site not listed on the NPL. A site
must be listed on the NPL, however, for EPA to fund a remedial
action. Also, if a state or subunit of a state owned or operated the
site, the state must contribute at least 50 percent of the response
costs incurred. CERCLA Section 104(c)(3) exempts tribes from the
requirement that states provide assurances regarding future
maintenance and cost sharing at remedial action sites.
Chapter 1: Overview of CERCLA and PRP Searches
3
-------
PRP Search Manual
September 2009
CERCLA Section 104(a)(3) limits EPA's authority to respond to a
release or threat of release:
• of a naturally occurring substances in their naturally
occurring and unaltered form, or altered solely through
naturally occurring processes or phenomena, from a location
where it is naturally found;
• from products which are part of the structure of, and result
in exposure within, residential buildings or business or
community structures; or
• into public or private drinking water supply systems due to
deterioration of the system through ordinary use.
Section 104(a) gives the President authority to respond
notwithstanding the limitations in (a)(3) provided that there is a
determination that the release or threat of release is an emergency
and no one else has the authority and ability to respond to it.
The major regulation implementing CERCLA is the National Oil and
Hazardous Substances Pollution Contingency Plan (NCP). (See
Chapter 1 References, p. 38.) It establishes the framework for
implementing Superfund response actions to address releases or
threats of releases of hazardous substances, pollutants, or
contaminants. The NCP was revised in 1994 to reflect the oil spill
provisions of the Oil Pollution Act of 1990 (OPA) (see Chapter 1
References, p. 38) and is occasionally supplemented with
regulations implementing amendments of CERCLA.
1.1.2
Overview of
CERCLA
Enforcement
EPA has adopted an "enforcement first" policy for removal and
remedial actions at CERCLA sites. This means that when PRPs for a
site have been identified, EPA typically will first pursue the PRPs to
conduct the site response rather than conduct the cleanup with
Superfund money.
Chapter 1: Overview of CERCLA and PRP Searches
4
-------
PRP Search Manual
September 2009
EPA may seek to obtain PRP participation through settlements,
unilateral orders, or litigation. In addition, EPA may take the lead
for cleanup activities and seek to recover its costs from PRPs. At
95 percent of non-federal facility Superfund sites where there are
known viable, liable parties, the Agency endeavors either to reach a
settlement or take an enforcement action before the start of a
remedial action.
1.1.3
Objectives of the
PRP Search
A PRP search seeks to establish evidence of liability by identifying
PRPs and associating their waste type and volume with that found
at the site. EPA identifies PRPs and collects evidence by collecting
site documents, performing title searches, sending Section 104(e)
information request letters, reviewing documents, conducting
interviews, and performing research.
The information gathered during a PRP search should enable EPA to
assess the nature of the party's potential liability at the site (such
as current owner or operator; prior owner or operator at a time of
disposal; arranger/generator; or transporter who selects the
disposal location, described in Section 1.2.4 of this manual). The
PRP search should gather information about a party's potential
defenses (e.g., third party defense, divisibility) or exemptions (e.g.,
municipal solid waste, Superfund Recycling Equity Act). In
addition, the PRP search should identify those PRPs that may have
a limited ability to pay (ATP) or are insolvent or defunct ("orphan").
Finally, the PRP search should assist in the early identification of
contributors of relatively small quantities of hazardous substances
(e.g., de minimis and "de micromis" parties).
One of the primary objectives of the PRP search is to identify the
entire universe of PRPs. Thorough PRP searches enhance EPA's
success in negotiating with PRPs to conduct the response activity
under EPA's oversight. In addition, early identification of PRPs
enables EPA to issue general notice letters (GNLs) promptly to
parties to inform them of their potential liability at a site. These
PRPs may then be able to help EPA locate other PRPs to share the
cost of the response activity. When PRPs are identified and notified
Chapter 1: Overview of CERCLA and PRP Searches
5
-------
PRP Search Manual
September 2009
early in the remedial process, there is a greater likelihood that they
will decide to undertake appropriate response actions.
Finally, the early identification of PRPs affords EPA the opportunity
to settle with small volume contributors promptly, thereby
minimizing their transaction costs. For example, CERCLA Section
122(g) authorizes de minimis settlements with parties whose
contribution is minimal in amount and toxicity if the settlement
involves only a minor portion of the response costs. (See "Interim
Guidance on the Ability to Pay and De minimis Revisions to CERCLA
Section 122(g) by the Small Business Liability Relief and
Brownfields Revitalization Act" (May 17, 2004), Chapter 1
References, p. 38.)
1.2
CERCLA
Liability
1.2.1
Categories of
Potentially
Responsible
Parties
CERCLA Section 107(a) imposes liability on four classes of person:
• current owners and operators of a facility;
• former owners and operators of a facility at the time of
disposal;
• persons who arranged for treatment or disposal of
hazardous substances (commonly referred to as
"generators" or "arrangers"); and
• transporters of hazardous substances who selected the
disposal site.
Any person who falls within the definition of one of these classes
may be held liable under CERCLA unless one of the statutory
defenses or exemptions to liability applies. (See Sections 1.2.5 and
1.2.6 of this manual.)
Chapter 1: Overview of CERCLA and PRP Searches
6
-------
PRP Search Manual
September 2009
Current Owners and Operators of a Facility
CERCLA Section 107(a)(l) imposes liability on the current owner(s)
and operator(s) of a vessel or facility from which there has been a
release of a hazardous substance, even if they did not own or
operate the facility at the time of disposal of hazardous substances.
The term "owner or operator" is defined in Section 101(20), and
has been interpreted broadly by courts to include almost any
person who has an ownership interest in or the ability to manage or
control a business. The definition excludes, however, a person who
holds indicia of ownership primarily to protect a security interest
(e.g., a lender) if the person does not participate in the
management of the facility. (See CERCLA Section 101(20)(A) and
the discussion of secured creditors in Section 1.2.6 of this manual
for more details.) In addition, current owners who meet the
statutory criteria of bona fide prospective purchasers in Section
101(40) are not liable as owners or operators under CERCLA. (See
CERCLA Section 107(r) and further discussion in Section 1.2.7 of
this manual.)
Courts also have imposed owner/operator liability on parent
corporations and corporate officers and personnel. In 1998, in
United States v. Bestfoods, 524 U.S. 51 (1998), the Supreme Court
set forth the instances in which a parent corporation may incur
"direct" liability as a CERCLA Section 107(a)(2) operator. In
Bestfoods, the Supreme Court held that a parent corporation is
subject to direct operator liability where it "manage[s], direct[s], or
conduct[s] operations specifically related to pollution, that is,
operations having to do with leakage or disposal of hazardous
waste, or decisions about compliance with environmental
regulations." Courts have also applied the Bestfoods test for direct
operator liability to corporate officers and shareholders.
In some instances, federal courts have applied traditional principles
of corporate law to "pierce the corporate veil" and hold such parties
liable indirectly as CERCLA owners. In addition to setting forth the
Chapter 1: Overview of CERCLA and PRP Searches
7
-------
PRP Search Manual
September 2009
test for "direct" operator liability, Bestfoods also addressed
conditions under which parent corporations may be "indirectly"
liable as CERCLA "owners." In Bestfoods, the Court distinguished
indirect liability from direct liability by stating that although a
parent corporation cannot be held directly liable as an owner of a
polluting facility owned or operated by its subsidiary, the parent
corporation's corporate veil may be pierced - and the parent
corporation may be held liable as an owner for the subsidiary
corporation's conduct - upon a finding that the corporate forum has
been "misused to accomplish certain wrongful purposes, most
notably fraud, on the [parent corporation's] behalf." Bestfoods, 524
U.S. at 62.
"Piercing the corporate veil" is "the judicial act of imposing personal
liability on otherwise immune corporate officers, directors, and
shareholders for a corporation's fraudulent or wrongful acts."
Black's Law Dictionary, 3d Ed. In Bestfoods, the Court expressly
declined to decide if courts should apply veil piercing standards
arising from CERCLA-based federal common law or from state
common law. Bestfoods at 63-64. (See Section 3.6.10 of this
manual for further discussion of the liability of parent corporations
and corporate individuals.)
Former Owners and Operators of a Facility
CERCLA Section 107(a)(2) imposes liability on any person who
owned or operated a facility at the time of disposal of any
hazardous substance at the facility. Thus, unlike current owners
and operators, a former owner or operator is liable only if disposal
of hazardous substances occurred while the person owned or
operated the facility. The term "disposal," however, incorporates
the broad definition under the Resource Conservation and Recovery
Act. It has been interpreted by some courts to include releases
Chapter 1: Overview of CERCLA and PRP Searches
8
-------
PRP Search Manual
September 2009
that occur long after the hazardous substance was initially disposed
of at the facility.2
For example, if Party A owned the site and disposed of hazardous
substances there during ownership and later sold the property to
Party B, both parties could be held liable. Party A could be held
liable because the disposal took place when it owned the property.
Some courts have ruled in similar cases that Party B is liable if, for
example, drums or tanks containing hazardous substances leaked
at the facility during Party B's ownership even if Party B did not
place the drums or tanks on the property and no longer owns the
property.
Arrangers (or "Generators")
CERCLA Section 107(a)(3) imposes liability on a person who
arranged for disposal or treatment, or arranged with a transporter
for transport for disposal or treatment, of hazardous substances at
any facility owned or operated by another party and containing
such hazardous substances. Although the statute does not use the
term "generator," this term is commonly used to refer to a person
who generated the hazardous substance, or arranged for its
disposal or treatment, or did both.
Arrangers or generators may include corporations that entered into
disposal contracts, waste brokers, or corporate officers who are
involved in or responsible for waste disposal activities. A person
may be held liable as a generator even if that person did not select
the disposal location. In addition, a generator's liability may follow
its waste from site to site. For example, if a generator sends its
waste to site A and site A's operator sends some of that waste to
Liability for "passive migration" is determined by the specific case law of the federal
circuit where the site of the release is located, and federal circuits are divided on this issue. See,
e.g., CarsonHarbor Village, Ltd. v. Unocal Corp., 270 F.3d 863 (9th Cir. 2001) (gradual passive
migration through soil which took place when prior owner had property was not a disposal); United
States v. 150 Acres of Land, 204 F.3d 698 (6th Cir. 2000) (liability for disposal based on passive
migration requires human activity); ABB Industrial Systems Inc. v. Prime Technology, Inc., 120 F.3d
351 (2nd Cir. 1997); UnitedStates v. CDMGRealty, 96 F.3d 706 (3rd Cir. 1996); JoslynMfg. Co. v.
Koppers Co. Inc., 40 F.3d 750 (5th Cir. 1994) (interpreting disposal to require active human
conduct); but see Nurad, Inc. v. William Hooper & Sons Co., 966 F.2d 837 (4th Cir. 1992)
(upholding CERCLA liability for passive migration).
Chapter 1: Overview of CERCLA and PRP Searches
9
-------
PRP Search Manual
September 2009
site B, the generator may be liable for the cost of cleaning up both
site A and site B. To establish generator liability, EPA must
demonstrate that there was a release or threatened release of a
hazardous substance from a facility, but EPA does not need to
prove that the generator's actual hazardous substance was
released.
An arrangement for disposal or treatment may take a wide variety
of forms, including a conventional oral or written contract or a toll
processing agreement where disposal of hazardous substances is
inherent in the work to be performed under the agreement. Courts
have looked at a variety of factors to determine "arranger" liability,
including but not limited to whether (1) a sale involved the transfer
of a "useful" or "waste" product; (2) the party intended to dispose
of a substance at the time of the transaction; (3) the party had
knowledge of the disposal; and (4) whether the party owned the
hazardous substances.
In Burlington Northern & Santa Fe Railway Company v. United
States, the Supreme Court recognized that some situations plainly
give rise to arranger liability. It said that, on the one hand, liability
will attach if the "sole purpose" is to discard of a used and no
longer useful hazardous substance. On the other, it said that there
is no liability for merely "selling a new and useful product if the
purchaser of that product later, and unbeknownst to the seller,
disposed of the product in a way that led to contamination."3
Specifically, the Supreme Court in Burlington Northern found that a
party with knowledge of spills alone was insufficient to prove that
the party "planned for" the disposal, "particularly when the disposal
occurs as a peripheral result of the legitimate sale of an unused,
useful product" and the party took numerous steps to reduce the
likelihood of spills. The Supreme Court found that to qualify as an
arranger the party must have intended that "at least a portion of
the product be disposed of."4
3Burlington Northern & SantaFeRy. Co. v. UnitedStates, 129 S.Ct. 1870, 1878 (U.S.
2009).
^Burlington Northern & Santa FeRy. Co. v. UnitedStates, 129 S.Ct. 1870, 1876 (U.S.
2009).
Chapter 1: Overview of CERCLA and PRP Searches
10
-------
PRP Search Manual
September 2009
A generator's liability may follow its waste from site to site. For
example, if a generator sends its waste to site A and site A's
operator sends some of that waste to site B, the generator may be
liable for the costs of cleaning up both site A and site B.
Transporters
CERCLA Section 107(a)(4) imposes liability on a person who
accepts a hazardous substance for transportation to a disposal or
treatment facility or site selected by the transporter. The term
"transportation" is defined to include the movement of a hazardous
substance by any mode, including any stoppage in transit which is
temporary and incidental to the transportation movement.
The key factor in establishing transporter liability is that the
transporter must have selected the disposal site. Unless EPA can
prove that the transporter chose the site, the transporter is not
liable under CERCLA Section 107(a)(4).
1.2.2
Prima Facie Case
"Prima facie" is not a CERCLA definition but a legal term meaning
"legally sufficient to establish a fact or case unless disproved." This
term is used to describe the basic set of facts that EPA must be
able to prove to establish that a person is liable under CERCLA:
• there was a release or threatened release;
• of a hazardous substance;
• from a facility;
• that caused the government to incur response costs; and
• the party is in at least one of the four classes of PRPs
described in CERCLA Section 107(a).
Chapter 1: Overview of CERCLA and PRP Searches
11
-------
PRP Search Manual
September 2009
There are several key definitions associated with the elements
listed above:
• "Person" is defined in CERCLA Section 101(21) as "an
individual, firm, corporation, association, partnership,
consortium, joint venture, commercial entity, United States
Government, State, municipality, commission, political
subdivision of a State, or any interstate body."
• "Release" is defined in CERCLA Section 101(22) as "any
spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, or
disposing into the environment."
• "Hazardous substance" is defined in CERCLA Section 101(14)
as any substance EPA has designated under specified
provisions of the Clean Air Act, the Clean Water Act, the
Toxic Substances Control Act, and the Resource
Conservation and Recovery Act. (See Chapter 1 References,
p. 38.) EPA also may designate additional substances as
hazardous substances under CERCLA. EPA maintains and
updates a list of CERCLA hazardous substances in Title 40 of
the Code of Federal Regulations, Part 302. (See Chapter 1
References, p. 38.) The term does not include petroleum,
including crude oil, unless it is specifically listed or
designated as a hazardous substance under one of those
Acts, and does not include natural gas, natural gas liquids,
liquefied natural gas, or synthetic gas usable for fuel.5
5 CERCLA's petroleum exclusion has been held in the case law to apply to refined and
unrefined petroleum products even though some of the indigenous components and additives added
during refining are listed hazardous substances. The petroleum exclusion has been held not to
apply, however, if (1) the indigenous components are found in amounts in excess of amounts which
would have resulted from refining, or (2) the indigenous components are added to the petroleum
product during or after use.
Chapter 1: Overview of CERCLA and PRP Searches
12
-------
PRP Search Manual
September 2009
• "Pollutant or contaminant" is defined in CERCLA Section
101(33) as any other substance not on the list of hazardous
substances which "will or may reasonably be anticipated to
cause" adverse effects in organisms or their offspring.
• "Facility" is defined in CERCLA Section 101(9) as "any
building, structure, installation, equipment, pipe or pipeline
(including any pipe into a sewer or publicly owned treatment
works), well, pit, pond, lagoon, impoundment, ditch, landfill,
storage container, motor vehicle, rolling stock, or aircraft, or
any site or area where a hazardous
substance has been deposited, stored, disposed of, or
placed, or otherwise come to be located; but does not
include any consumer product in consumer use or any
vessel." The term "facility" has been interpreted to include
the site of a hazardous waste disposal operation; ground
upon which hazardous substances were deposited; and
trucks from which hazardous substances were released into
the environment, even though the trucks themselves were
not the subject of a removal or remedial action.
• "Response" is defined in CERCLA Section 101(25) as
"remove, removal, remedy, and remedial action." Response
costs include, but are not limited to:
• the costs of site investigations;
• enforcement costs, including PRP search costs;
• sampling;
• remedial studies;
• monitoring and testing (to identify the nature and
extent of the release or threatened release, or the
extent of the danger to public health, welfare, or the
environment);
• planning and implementation of a response action;
and
Chapter 1: Overview of CERCLA and PRP Searches
13
-------
PRP Search Manual
September 2009
• the recovery of costs associated with these actions
(including costs incurred by EPA and other entities,
such as the Department of Justice (DCO), U.S. Coast
Guard, and the states).
Response costs include direct as well as indirect costs (general EPA
operating costs). Costs associated with the oversight of PRP
response actions are also recoverable.6
Section 104(a)(l) specifically provides for recovery of oversight
costs for PRP-conducted remedial investigation and feasibility study
(RI/FS) work. Response costs do not include civil penalties for
violations of statute, but they do include interest on past
expenditures.7 Response costs incurred prior to CERCLA's
enactment also may be recovered. Cost recovery actions may be
filed at any time after response costs have been incurred; however,
they must be initiated within the statute of limitations defined in
CERCLA Section 113(g)(2) and described in more detail in Section
4.9 of this manual.
1.2.3 CERCLA Section 107(a) imposes strict liability on the four classes of
Strict Liability parties described and listed on page 6. Strict liability means that
PRPs are liable even if:
• the problems caused by the hazardous substance release
were unforeseeable;
• the PRP's actions were legal at the time they occurred; and
• state-of-the-art waste management practices were used at
the time the materials were disposed of.
6 Previously, in states under the jurisdiction of the United States Court of Appeals for the
Third Circuit - Pennsylvania, New Jersey, Delaware, and the Virgin Islands - there were limitations
on EPA's authority to recover costs for oversight. See U.S. v. Rohm &Haas Co., 2 F.3d 1265 (3rd
Cir. 1993). The Third Circuit Court of Appeals subsequently overturned Rohm & Haas, finding that
the plain meaning of CERCLA allowed EPA to recover oversight costs. See United States v.
DuPont, 432 F.3d 161 (3rd Cir. 2005)
Comptroller Policy Announcement 87-17, "Interest Rates for Debts Recoverable Under
the Superfund Amendments and Reauthorization Act of 1986," September 30, 1986. (See Chapter 1
References, p. 39.)
Chapter 1: Overview of CERCLA and PRP Searches
14
-------
PRP Search Manual
September 2009
1.2.4 In addition, CERCLA liability is usually joint and several. This
Joint and Several means that any one PRP can be held liable for the entire cost of site
Liability cleanup, regardless of the share of the waste contributed by that
PRP. The PRP who pays the costs can then seek to recover costs
from the non-paying PRPs. In general, however, EPA attempts to
identify and notify the universe of PRPs at a site and negotiate with
the largest manageable number of parties.
Joint and several liability is based on the legal concept of
"indivisible harm." A PRP may be able to defend against the
application of the full extent of joint and several liability
in a particular case if it can show that there are distinct harms or
there is a reasonable basis for determining the contribution of each
cause to a single harm.8 A common method for attempting to
demonstrate distinct harms is based on geographical
considerations, for example, where there are separate and distinct
plumes of ground water contamination. Methods for attempting to
demonstrate a reasonable basis for determining contributions to
single harm can be far more complex.
Where successful, this divisibility defense apportions liability to a
defendant based on the amount of harm contributed (e.g., if a
defendant's separate plume can be expertly modeled at causing
10% of the harm, that might mean the defendant would be found
responsible for 10% of the response costs). Not all harms are
capable of apportionment, and the burden of demonstrating
divisibility is on the defendant.9 Furthermore, "when two or more
causes produce a single, indivisible harm, 'courts have refused to
make an arbitrary apportionment for its own sake, and each of the
causes is charged with responsibility for the entire harm.'"10
8 Restatement (Second) of Torts § 881; Burlington Northern & Santa Fe Ry. Co. v. United
States, 129 S.Ct. 1870, 1881 (2009), citing United States v. Chem-Dyne Corp., 572 F.Supp. 802
(S.D.Ohio 1983).
9 Restatement (Second) of Torts § 433B.
10 Burlington Northern, 129 S.Ct. at 1881, citing Restatement (Second) of Torts § 433A,
Comment i.
Chapter 1: Overview of CERCLA and PRP Searches
15
-------
PRP Search Manual
September 2009
Where hazardous substances are commingled following disposal at
a site, evidence that a single PRP's contribution caused a distinct
and segregable environmental harm is generally difficult. The
divisibility defense requires a fact-intensive analysis, and the
defendant bears a heavy burden of proof. The defendant must
demonstrate that the hazardous substances it sent to a site caused
a specific, separate, and distinct environmental harm from other
environmental harm at the site.11
Divisibility issues typically are raised by PRPs who bring information
to EPA's attention that they wish to be considered in the context of
a settlement. EPA must then carefully review the
information provided, which will likely include the PRPs' belief
regarding the specific contribution of each PRP to the release of
hazardous substances that resulted in the contamination at the site
or why the harm is distinct. A reasonable basis for such
determinations should be well documented. (See United States v.
Alcan Aluminum Corp., 315 F.3d 179 (2nd Cir. 2003), and United
States v. Hercules, 247 F.3d 706 (6th Cir. 2001), for good
discussions of the divisibility defense to joint and several liability.)
1.2.5
Statutory
Defenses to
CERCLA Liability
A person identified as a potentially responsible party may claim a
statutory defense to liability based on CERCLA Section 107(b).
Section 107(b) provides that a party is not liable if a release was
caused solely by:
• an act of God, as defined in Section 101(1);
• an act of war; or
• an act or omission of a third party other than an employee
or agent of the defendant or one in a contractual
relationship with the defendant (commonly referred to as
the "third party" defense).
11 See, e.g., United States v. Hercules.Inc., 247 F.3d 706 (8th Cir. 2001) (holding that the
evidence proffered must be "concrete and specific").
Chapter 1: Overview of CERCLA and PRP Searches
16
-------
PRP Search Manual
September 2009
Third Party Defense
In order to establish a third party defense under Section 107(b)(3),
a person has the burden of proving that the act or omission was
conducted by someone other than the person claiming the defense,
and by someone with whom that person has no contractual
relationship. In addition, the person must establish that he: (1)
exercised due care with respect to hazardous substances; and (2)
took precautions against foreseeable acts or omissions of the third
party and any consequences thereof. The defense is not available
to a person who has actual knowledge of a release or threatened
release during his ownership and subsequently transfers the
property to another person without disclosing the release or
threatened release. In addition, the person may not have caused
or contributed to the contamination.
CERCLA Section 101(35)(A) defines "contractual relationship" to
include land contracts, deeds, or other instruments conveying
interests in land. A contractual relationship does not exist - and
the defense still applies - if the property was acquired after the
disposal or placement of the hazardous substances and one or
more of the following circumstances is established:
• The person had no knowledge or reason to know that there
was a release of hazardous substances at the property at
the time of acquisition and that, prior to acquisition, the
person made all appropriate inquiry into the previous
ownership and uses of the property consistent with good
commercial or customary practice.
• The person is a government entity which acquired the
facility by escheat, or through any other involuntary transfer
or acquisition, or through the exercise of eminent domain.
• The person acquired the property by inheritance or bequest.
Chapter 1: Overview of CERCLA and PRP Searches
17
-------
PRP Search Manual
September 2009
This third party defense is often referred to as the "innocent
landowner" defense.
The Small Business Liability Relief and Brownfields Revitalization
Act of 2002 (SBLR&BRA or "Brownfields Amendments") (see
Chapter 1 References, p. 39) clarified the "all appropriate inquiry"
into the previous ownership and uses of the property required by
the statute. For purchasers of residential property, CERCLA Section
101(35)(B) provides that a facility inspection and title search are
sufficient. For all other purchasers, the determination is based on
the date of purchase. For property purchased prior to May 31,
1997, Section 101(35)(B) prescribes a narrative standard directing
courts to consider a list of factors, including specialized knowledge
of the "defendant," the obviousness of the contamination, and the
relationship of the purchase price to the value of the property if it
were not contaminated. For property purchased on or after May
31, 1997, Section 101(35)(B) directs EPA to establish standards
and practices for satisfying the all appropriate inquiries
requirement. EPA issued a regulation establishing such standards
and practices on November 1, 2005, which took effect November 1,
200612, and subsequently made available a detailed fact sheet on
their implementation.13
The amendments also require that "innocent landowners" can
maintain this defense only by complying with certain continuing
obligations. A purchaser must take reasonable steps to stop any
continuing release, to prevent any threatened new release, and to
prevent or limit any human, environmental, or natural resource
exposure to hazardous substances. All innocent landowners must
provide cooperation, assistance, and access to persons conducting
response actions at the facility, and comply with and maintain land
use restrictions and institutional controls.
12 "Standards and Practices for All Appropriate Inquiries," 40 C.F.R. Part 312; Federal
Register, Vol. 70, No. 210, November 1, 2005, pp. 66069-66113. (See Chapter 1 References, p..39.)
13 "Fact Sheet on All Appropriate Inquiries Final Rule," EPA 560-F-05-240, November
2005. (See Chapter 1 References, p. 39.)
Chapter 1: Overview of CERCLA and PRP Searches
18
-------
PRP Search Manual
September 2009
1.2.6
Statutory
Exemptions and
Protections from
CERCLA Liability
In addition to the statutory defenses to CERCLA liability, CERCLA
provides statutory exemptions and protections from liability for
certain parties.
"De Micromis" Parties
The Brownfields Amendments added CERCLA Section 107(o), which
provides a qualified statutory exemption from liability for response
costs for "de micromis" generators and transporters where: (1) the
total amount of material containing hazardous substances
contributed by the party to a site was less than 110 gallons of
liquid materials or less than 200 pounds of solid materials; (2) the
site is listed on the NPL; and (3) all or part of the party's disposal,
treatment, or transport occurred before April 1, 2001.
The exemption does not apply, however, if the President
determines that: (1) the person sent materials that contributed or
could contribute significantly, either individually or in the
aggregate, to the cost of the response action or natural resource
restoration; (2) the person has failed to comply with an information
request or administrative subpoena; (3) the person has impeded,
through action or inaction, a response action or natural resource
restoration; or (4) the person has been convicted of a criminal
violation for conduct related to the exemption. (See also Section
1.2.7 of this manual for a discussion of EPA's enforcement
discretion policy toward non-exempt "de micromis" parties.)
Municipal Solid Waste Exemption
Section 107(p), also added to CERCLA by the Brownfields
Amendments, conditionally exempts three categories of parties
from liability for response costs incurred with respect to municipal
solid waste (MSW) disposed of at a facility on the NPL:
Chapter 1: Overview of CERCLA and PRP Searches
19
-------
PRP Search Manual
September 2009
• an owner, operator, or lessee of residential property;
• a business entity (including a parent, subsidiary, or affiliate
of the entity) that, during the three years preceding written
notice of its potential liability, employed on average not
more than 100 full-time individuals, or the equivalent
thereof, and is a small business concern from which was
generated all of the municipal solid waste (MSW)
attributable to the entity with respect to the facility; and
• an organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986 (see Chapter 1 References,
p. 39) and exempt from tax under Section 501(a) of the
Code that during the tax year preceding written notice of
liability employed 100 or fewer paid individuals at the
location from which all MSW was generated.
The conditional exemption does not apply to parties liable as
owners or operators under Section 107(a)(l) or (2) or as
transporters under Section 107(a)(4). (See "Contiguous Property
Owner Guidance Reference Sheet" (February 4, 2004), Chapter 1
References, p. 39; see also Section 1.2.7 of this manual for a
discussion of EPA's enforcement discretion policy toward contiguous
property owners.)
Contiguous Property Owners
Another liability protection established by the Brownfields
Amendments is CERCLA Section 107(q), which protects from owner
or operator liability persons who own land contaminated solely by a
release from contiguous property, or similarly situated property,
owned by someone else, if the owner:
• is not a PRP or affiliated with a PRP;
• did not cause, contribute, or consent to the release of
hazardous substances; and
Chapter 1: Overview of CERCLA and PRP Searches
20
-------
PRP Search Manual
September 2009
• conducts "all appropriate inquiry" prior to purchase and
demonstrates that it did not know or have reason to know of
contamination. (See Section 1.2.5 of this manual for a
discussion of the "all appropriate inquiry" requirement.)
In order to maintain the liability protection, the owner must:
• take reasonable steps to stop continuing releases, prevent
threatened future releases, and prevent or limit human,
environmental, or natural resources exposure to hazardous
substance release;
• provide cooperation, assistance, and access;
• comply with and maintain land use restrictions and
institutional controls;
• comply with CERCLA information requests and
administrative subpoenas; and
• provide legally required notices.
(See "Contiguous Property Owner Guidance Reference Sheet"
(February 4, 2004), Chapter 1 References, p. 39; see also Section
1.2.7 of this manual for a discussion of EPA's enforcement
discretion policy toward contiguous property owners.)
Bona Fide Prospective Purchasers
The Brownfields Amendments to CERCLA now enable a person to
acquire contaminated property without thereby being considered a
PRP as the present owner of a Superfund site. By following the
statutory requirements of CERCLA Section 101(40), such a person
now may become a "bona fide prospective purchaser" (BFPP).
CERCLA Section 107(r) protects a BFPP whose potential liability is
based solely on the purchaser's being an owner or operator of a
facility so long as the purchaser does not impede the performance
Chapter 1: Overview of CERCLA and PRP Searches
21
-------
PRP Search Manual
September 2009
of a CERCLA response action. Section 101(40) defines a BFPP as a
person, or tenant of that person, who acquires ownership of a
facility after January 11, 2002, and:
• establishes that disposal at the facility occurred prior to
acquisition;
• is not a PRP or affiliated with a PRP;
• made all appropriate inquiry into previous ownership and
uses of the facility in accordance with generally accepted
practices and new standards contained in Section
101(35)(B);
• takes reasonable steps to stop any continuing releases,
prevent any threatened future releases, and prevent or limit
human, environmental, or natural resource exposure to any
previously released hazardous substance; and
• provides cooperation, assistance, and access, complies with
and maintains land use restrictions and institutional controls,
complies with information requests and administrative
subpoenas, and provides legally required notices.
A critical distinction between the BFPP provision and the innocent
landowner and contiguous property owner provisions is that the
BFPP can purchase with knowledge of the contamination and still
have CERCLA liability protection. Section 107(r) provides,
however, that a BFPP may be subject to a "windfall lien" for
unrecovered response costs incurred by the United States at a
facility where the response action increases the fair market value of
the facility. The lien is limited to the lesser of the increase in the
fair market value attributable to EPA's response action or the
unrecovered response costs. (See also Section 1.2.7 of this manual
for a discussion of EPA's enforcement discretion policies toward
prospective purchasers.)
Chapter 1: Overview of CERCLA and PRP Searches
22
-------
PRP Search Manual
September 2009
Scrap Recyclers
The Superfund Recycling Equity Act (SREA) (see Chapter 1
References, p. 39) signed into law on November 29, 1999, was
passed as part of the Omnibus Appropriations Bill and is codified as
an amendment to CERCLA at §42 U.S.C. 9627 and incorporated into
CERCLA as Section 127. This amendment exempts from the
generator and transporter liability sections of CERCLA certain
generators and transporters who "arranged for recycling of
recyclable materials." Owners and operators of sites are ineligible
for the exemption, as are generators and transporters of non-
recyclable materials or generators and transporters of recyclable
materials that fail to meet the criteria necessary for the exemption.
A PRP's liability should be carefully examined in order to determine
the applicability of SREA. If the region determines that a party is a
PRP, then the region may evaluate whether the PRP is exempt
under SREA. Regions should not presume a party's eligibility for
the exemption absent either a demonstration of proof by the party
that it was recycling consistent with Section 127 or other site-
specific information that suggests that the party is eligible for the
exemption.
Recyclable materials defined under SREA include scrap paper, scrap
plastic, scrap glass, scrap textiles, scrap rubber (other than whole
tires), scrap metal, spent lead-acid, spent nickel-cadmium
batteries, and other spent batteries. (See CERCLA Section 127 for
further details on SREA.)
Secured Creditors
CERCLA Section 101(20)(A) and (E) exempts from owner/operator
liability any person who, without participating in the management
of a facility, holds indicia of ownership primarily to protect that
person's security interest in the facility. Holding a security interest
means having a legal claim of ownership in order to secure a loan,
Chapter 1: Overview of CERCLA and PRP Searches
23
-------
PRP Search Manual
September 2009
equipment, or other debt. This exemption protects from CERCLA
Section 107 owner/operator liability those persons, such as private
and governmental lending institutions (e.g., banks), who maintain a
right of ownership in, or guarantee loans for, facilities that become
contaminated with hazardous substances.
Under CERCLA Section 101(20)(F), which was added to CERCLA by
amendment in 1996, a lender "participates in management" and will
not be protected by the secured creditor exemption if it either:
• exercises decision-making control over environmental
compliance related to the facility, such that the lender has
undertaken responsibility for hazardous substance handling
or disposal practices; or
• exercises control at a level comparable to that of a manager
of the facility, such that the lender has assumed or
manifested responsibility with respect to (1) day-to-day
decision-making regarding environmental compliance, or (2)
all, or substantially all, of the operational (as opposed to
financial or administrative) functions of the facility other
than environmental compliance.
The term "participate in management" does not include certain
activities, provided those activities do not rise to the level of
participating in management as defined in CERCLA Section
101(20)(F), such as:
• inspecting the facility;
• requiring a response action or other lawful means to address
a release or threatened release;
• conducting a response action under CERCLA Section
107(d)(l) or under the direction of an on-scene coordinator
(OSC);
• providing financial or advisory support toward an effort to
prevent or cure default; or
Chapter 1: Overview of CERCLA and PRP Searches
24
-------
PRP Search Manual
September 2009
• restructuring or renegotiating the terms of the security
interest.
With respect to post-foreclosure activities, a lender that did not
participate in management prior to foreclosure, did not contribute
to or cause a release, and seeks to divest itself of the facility at the
earliest practicable, commercially reasonable time, on commercially
reasonable terms, is not an "owner or operator" if it:
• sells, re-leases (in the case of a lease-finance transaction),
or liquidates the facility;
• maintains business activities or winds up operations;
• undertakes a response action under CERCLA Section
107(d)(l) or under the direction of an OSC; or
• takes any other measure to preserve, protect, or prepare
the facility for sale or disposition.
Fiduciaries
CERCLA Section 107(n) limits the CERCLA liability of fiduciaries.
The term "fiduciary" means a person acting for the benefit of
another party as a bona fide trustee, executor, or administrator,
among other things. It does not include a person who either:
• acts as a fiduciary with respect to a for-profit trust or other
for-profit fiduciary estate, unless the trust or estate was
created because of the incapacity of a natural person, or as
part of, or to facilitate, an estate plan; or
• acquires ownership or control of a facility for the objective
purpose of avoiding liability of that person or another
person.
Under CERCLA Section 107(n), fiduciary liability under any
provision of CERCLA cannot exceed the assets held in the fiduciary
Chapter 1: Overview of CERCLA and PRP Searches
25
-------
PRP Search Manual
September 2009
capacity. In addition, a fiduciary will not be liable in its personal
capacity for certain actions, such as:
• undertaking or requiring another person to undertake any
lawful means of addressing a release of a hazardous
substance;
• enforcing environmental compliance terms of the fiduciary
agreement; or
• administering a facility that was contaminated before the
fiduciary relationship began.
The liability limitation described above does not limit the liability of
a fiduciary whose negligence causes or contributes to a release or
threatened release.
Service Station Dealers
Service station dealers may be eligible under CERCLA Section
114(c) for an exemption from liability as a generator or transporter
of hazardous substances under CERCLA Section 107(a)(3) or (a)(4)
if the dealer accepted from the public used oil for recycling which
is:
• not mixed with any other hazardous substance; and
• stored, treated, transported or otherwise managed in
compliance with regulations or standards promulgated
pursuant to Section 3014 of the Solid Waste Disposal Act
and other applicable authorities.
The exemption applies only to recycling transactions that occur
after the effective date of EPA's "Standards for the Management of
Used Oil" (May 3, 1993). (See Chapter 1 References, p. 39.) A
service station dealer still may be held liable under CERCLA Section
107(a)(l) and (2) as an owner or operator.
Chapter 1: Overview of CERCLA and PRP Searches
26
-------
PRP Search Manual
September 2009
State and Local Governments
CERCLA Section 107(d)(2) provides that, except for gross
negligence or intentional misconduct, state and local governments
are not liable for costs or damages resulting from an emergency
response to a hazardous substance release or threatened release.
Under CERCLA Section 107(d)(l), a person rendering care or
assistance in accordance with the NCR, including but not limited to
state and local governments, cannot be held liable under CERCLA
for costs or damages resulting from such care unless the care or
assistance is rendered in a negligent manner. Such a person can
be liable for costs or damages as the result of his negligence.
CERCLA Section 101(20)(A) exempts from owner/operator liability
units of state and local government that "involuntarily" acquire
CERCLA facilities, provided they did not cause or contribute to the
contamination. Governmental entities may also be protected from
liability resulting from involuntary acquisition by the third party
defense of CERCLA Section 107(b)(3) as discussed in Section 1.2.5
of this manual. Examples of involuntary acquisition include those
made by a government entity that is:
• acquiring property following abandonment or tax
delinquency;
• acting as a conservator or receiver pursuant to a clear and
direct statutory mandate or regulatory authority (such as
acquiring the security interests or properties of failed private
lending or depository institutions);
• undertaking foreclosure or its equivalent while administering
a governmental loan, loan guarantee, or loan insurance
program; or
• acting pursuant to seizure or forfeiture authority.
Chapter 1: Overview of CERCLA and PRP Searches
27
-------
PRP Search Manual
September 2009
Federally Permitted Releases
Section 107(j) excludes from CERCLA liability response costs
resulting from a "federally permitted release." Although EPA has
full authority under CERCLA to respond to federally permitted
releases, the permittee is not liable for cleanup costs resulting from
such releases. CERCLA Section 101(10) defines releases that
qualify as federally permitted releases (e.g., the discharge of
pollutants in compliance with a National Pollutant Discharge
Elimination System permit under the Clean Water Act).
Application of a Registered Pesticide
Section 107(i) excludes from CERCLA liability response costs or
damages resulting from the application of a pesticide product
registered under the Federal Insecticide, Fungicide, and Rodenticide
Act (FIFRA). (See Chapter 1 References, p. 39.)
1.2.7
EPA Enforcement
Discretion
Policies
The Agency may exercise its discretion in deciding whether to
pursue certain parties who fall within a category of liable parties
under CERCLA Section 107(a). EPA has issued several policies
concerning the exercise of its enforcement discretion. Because
they are discretionary, these policies are not legally binding on any
party, including EPA. When identifying and classifying PRPs at a
site, the Agency's discretionary enforcement policies and guidance
should be considered.
"De Micromis" Parties
In November 2002, EPA and DCO jointly issued the "Revised
Settlement Policy and Contribution Waiver Language Regarding
Exempt "de micromis" and Non-Exempt "de micromis" Parties"
(November 6, 2002). (See Chapter 1 References, p. 39.) As
discussed above, CERCLA Section 107(o) provides a statutory
exemption for certain "de micromis" parties. This settlement policy
Chapter 1: Overview of CERCLA and PRP Searches
28
-------
PRP Search Manual
September 2009
addresses the United States' position regarding those parties that
fall within the statutory definition of "de micromis" ("exempt "de
micromis" parties"), and those parties that fall outside the statutory
definition, but who may be deserving of similar treatment based on
case-specific factors ("non-exempt "de micromis" parties"). As a
matter of national policy, EPA intends to use its enforcement
discretion, as necessary, to achieve settlements that provide
appropriate relief for those non-exempt "de micromis" parties that
are being sued in contribution or threatened with a suit by other
responsible parties.
Municipal Solid Waste Exemption
Prior to the Brownfields Amendments, EPA relied on MSW
enforcement discretion policies. In 1989, EPA issued the "Interim
Policy on CERCLA Settlements Involving Municipalities or Municipal
Wastes" (December 12, 1989) ("1989 MSW Policy"). (See Chapter
1 References, p. 40.) The 1989 MSW Policy sets forth the criteria
by which EPA generally determines whether to exercise
enforcement discretion to pursue MSW generators or transporters
as PRPs under CERCLA. The 1989 MSW Policy provides that EPA
generally will not identify a generator or transporter of MSW as a
PRP unless there is site-specific evidence that the MSW disposed of
by that party contained hazardous substances derived from a
commercial, institutional, or industrial process or activity. The
1989 MSW Policy also addresses certain provisions that may be
appropriate in settlements with municipal owners or operators.
Building on the 1989 MSW Policy, EPA issued its "Policy for
Municipality and Municipal Solid Waste CERCLA Settlements at NPL
Co-Disposal Sites" (February 5, 1998) ("1998 MSW Policy"). (See
Chapter 1 References, p. 40.) The 1998 MSW Policy states that
EPA will continue its policy of generally not identifying generators
and transporters of MSW as PRPs at NPL sites. In an effort to
reduce contribution litigation by third parties, the 1998 MSW Policy
also identifies a methodology for settlements with generators and
Chapter 1: Overview of CERCLA and PRP Searches
29
-------
PRP Search Manual
September 2009
transporters of MSW at NPL sites who request a settlement with the
United States. Finally, the 1998 MSW Policy identifies a
presumptive settlement range for municipal owners and operators
of co-disposal sites on the NPL.
After the Brownfields Amendments added CERCLA Section 107(p),
EPA and DCO jointly issued the "Interim Guidance on the Municipal
Solid Waste Exemption Under CERCLA Section 107(p)" (August 20,
2003) ("2003 Interim Guidance"). (See Chapter 1 References, p.
40.) The 2003 Interim Guidance discusses the statutory exemption
and identifies some factors to be considered in the exercise of
enforcement discretion under the exemption. In addition, the 2003
Interim Guidance provides that the 1989 and 1998 MSW policies
remain in effect and should be applied where appropriate.
Contiguous Property Owners
In 1995, EPA issued its "Policy Towards Owners of Property
Containing Contaminated Aquifers" (May 24, 1995). (See Chapter
1 References, p. 40.) Although the 1995 policy is similar to the
exemption in favor of contiguous property owners in CERCLA
Section 107(q), in some ways the 1995 policy is broader, and may
apply to parties that do not qualify for the Section 107(q)
exemption. Under the 1995 policy, where hazardous substances
come to be located on or in a property solely as the result of
subsurface migration in an aquifer from a source or sources other
than the affected property, EPA will not take an enforcement action
against the owner of such property to require the performance of
response actions or the payment of response costs. The following
conditions apply:
• The landowner did not cause, contribute to, or exacerbate
the release or threat of release of any hazardous substances
through any act or omission. The failure to take affirmative
steps to mitigate or address ground water contamination,
such as conducting ground water investigations or installing
Chapter 1: Overview of CERCLA and PRP Searches
30
-------
PRP Search Manual
September 2009
ground water remediation systems, will not, in the absence
of exceptional circumstances, constitute an omission by the
landowner within the meaning of this condition.
• The person who caused the release is not an agent or
employee of the landowner, and was not in a direct or
indirect contractual relationship with the landowner. In
cases where the landowner acquired the property, directly
or indirectly, from a person who caused the original release,
application of the policy will require an analysis of whether,
at the time the property was acquired, the landowner knew
or had reason to know of the disposal of hazardous
substances that gave rise to the contamination in the
aquifer.
• There is no alternative basis for the landowner's liability for
the contaminated aquifer, such as liability as a generator or
transporter under CERCLA Section 107(a)(3) or (4), or
liability as an owner by reason of the existence of a source
of contamination on the landowner's property other than the
contamination that migrated in an aquifer from a source
outside the property.
Bona Fide Prospective Purchasers
Prior to the change in the CERCLA liability scheme discussed in
Section 1.2.6 of this manual, EPA negotiated agreements that
provided a covenant not to sue for certain prospective purchasers
of contaminated property prior to their acquisition of the property
in order to resolve the potential liability due to ownership of such
property. These agreements are known as prospective purchaser
agreements (PPAs). As discussed in Section 1.2.6, CERCLA now
limits the liability of persons who qualify as BFPPs. EPA's
memorandum titled "Bona Fide Prospective Purchasers and the New
Amendments" (May 31, 2002) (see Chapter 1 References, p. 40)
states that, in most cases, the Brownfields Amendments make
Chapter 1: Overview of CERCLA and PRP Searches
31
-------
PRP Search Manual
September 2009
PPAs from the federal government unnecessary. The memorandum
describes when, primarily because of significant public benefit, EPA
will consider providing a prospective purchaser with a covenant not
to sue.
On July 16, 2003, EPA and DOJ issued an interim enforcement
discretion policy titled "Interim Enforcement Discretion Policy
Concerning "Windfall Liens" Under Section 107(r) of CERCLA." The
"windfall lien" policy explains when EPA generally would, and would
not, seek compensation for increasing a property's market value
through a Superfund response action. Under Section 107(r) of
CERCLA, bona fide prospective purchasers are not liable as
owner/operators for CERCLA response costs. While a BFPP may not
be liable, the property he acquires may be subject to a windfall lien
if an EPA response action has increased the fair market value of the
property. The interim policy explains that, absent a Superfund
response action at a site, the United States has no windfall lien on
that property. For properties that have been the subject of an EPA
response action, the policy sets forth factors that may lead EPA and
DOJ to assert a windfall lien; provides examples of a number of
situations where EPA will generally not pursue a windfall lien;
describes EPA's and DOJ's general approach to settling windfall
liens; and discusses letters and agreements that EPA may provide
to prospective purchasers to address any windfall lien concerns.
(See Chapter 1 References, p. 40, for copies of the guidance,
attachments, and frequently asked questions; see also "Windfall
Lien Administrative Procedures" (January 8, 2008), Chapter 1
References, p. 40.)
Residential Homeowners
In 1991, EPA issued its "Policy Toward Owners of Residential
Property at Superfund Sites" (July 3, 1991). (See Chapter 1
References, p. 40.) Under this policy, EPA will not require
residential owners of property to undertake response actions or pay
response costs unless the residential homeowner's activities lead to
a release or threatened release of hazardous substances resulting
Chapter 1: Overview of CERCLA and PRP Searches
32
-------
PRP Search Manual
September 2009
in a response action. The policy applies to properties that are
owned and used exclusively for single-family residences of one to
four units. Furthermore, the owner's knowledge of the presence of
contamination on the property at the time of purchase or sale does
not affect this enforcement discretion policy. However, if the
residential owner's activities lead to a release or threatened release
resulting in a response action, the enforcement discretion policy will
not apply. The policy also does not apply if the owner of the
property refuses to provide access to the residential property when
requested or interferes with response activities conducted on the
residential property.
Good Samaritans at Orphan Mine Sites
EPA's Good Samaritan Initiative is an Agency-wide effort to
facilitate the cleanup of certain watersheds affected by orphan mine
sites by encouraging the efforts of certain non-liable parties ("Good
Samaritans" or "Good Sams") who are willing to voluntarily clean up
some of these sites. Concerns about incurring potential liability
under CERCLA and the Clean Water Act (CWA) as a result of
performing cleanup work at orphan mines have long discouraged
voluntary cleanups at many of these sites. The Good Samaritan
Initiative's principal purpose is to use the federal government's
authority to provide greater legal certainty to Good Samaritans and
resolve to the extent possible the threat of potential federal
liabilities so that voluntary cleanups at these sites can proceed.14
1.3
PRP Notification
of Potential
Liability
When PRPs have been identified, EPA's general policy is to notify
them of their potential liability, advise them of the intended
response action, and afford them the opportunity to pay for or
conduct response actions. Where circumstances require, EPA may
issue concurrently to each PRP a notice of potential liability
OECA/OSWER Memorandum, "Interim Guiding Principles for Good Samaritan
Projects at Orphan Mine Sites and Transmittal of CERCLA Administrative Tools for Good
Samaritans" (June 6, 2007). (See Chapter 1 References, p. 40.)
Chapter 1: Overview of CERCLA and PRP Searches
33
-------
PRP Search Manual
September 2009
(general notice letter) and/or a notice of opportunity to negotiate to
conduct the response action (special notice letter). EPA uses
different notice letters for different recipients, each with a different
tone as well as content. These include the general notice letter
(GNL); special notice letter (SNL) for RI/FS; SNL for remedial
design and remedial action (RD/RA), which usually also includes a
demand for past costs; notice of decision not to use an SNL;
combined GNL/104(e) letter; and combined GNL/demand letter.
1.3.1 A GNL is a notice that informs PRPs of their potential liability for
General Notice past ancl future response costs. GNLs generally contain the
. .. following information:
Letters
• notification of potential liability under Sections 106 and
107(a) of CERCLA, including notification that:
• CERCLA Section 107 authorizes the Agency to initiate
cost recovery actions to recover all costs not
inconsistent with the NCP incurred in responding to
the release or threatened release of hazardous
substances;
• CERCLA Section 106 authorizes the Agency to issue
administrative orders or take judicial action
compelling the PRP to implement the response
• selected by EPA to abate an imminent and
substantial danger caused by the release or
threatened release of hazardous substances; and
• The Agency encourages PRPs to agree to perform or
finance those response activities that EPA determines
to be necessary at the site;
• to the extent practical, information that supports the PRP
designation, such as the dates of ownership of real site
property or the period of time that the company operated
the facility;
Chapter 1: Overview of CERCLA and PRP Searches
34
-------
PRP Search Manual
September 2009
• information about the general opportunity to discuss any
selected response action and opportunities to undertake the
selected response action, including;
• discussion of any planned response measures,
• the merits of forming a PRP steering committee,
• the deadline for the PRPs to respond, in writing,
indicating their willingness to participate in the
response action at the site, and
• the name and phone number of the EPA contact for
PRPs or their attorneys,
• information about development of the administrative
record pursuant to the NCP; and
• a demand for reimbursement of EPA costs.
(See "Sample General Notice Letter" (April 30, 2008), Chapter 1
References, p. 41.)
1.3.2
Special
Notice Letters
General notice letters usually encourage PRPs to undertake
response actions. Although EPA is not required to do so, providing
as much information as possible to PRPs concurrently with the GNL
often yields the best results, including identification of additional
PRPs, better responses to Section 104(e) information requests,
and, ultimately, more productive negotiations with PRPs for
performance of the work under a settlement agreement.15
The SNL, authorized under CERCLA Section 122(e)(l), is a written
notice to PRPs that triggers an enforcement moratorium — a period
in which EPA postpones Fund-lead response actions and withholds
15 OSRE Memorandum, "Revised Final Guidance on Disseminating EPA's SBREFA
Information Sheet to Businesses at the Time of Enforcement Activity" (August 31, 1999) states that
EPA will notify small businesses of their right to comment on regulatory enforcement activities
when EPA makes its "initial enforcement contact" with the business. The initial enforcement
contact under CERCLA is typically a general or special notice letter. (See Chapter 1 References, p.
41, for the memorandum and current Small Business Information Sheet.)
Chapter 1: Overview of CERCLA and PRP Searches
35
-------
PRP Search Manual
September 2009
any enforcement action in order that EPA and the PRPs may
negotiate a settlement concerning response actions at the site. The
SNL contains the following:
• information about the Agency's discretionary authority under
Section 122(e) of CERCLA to formally negotiate the terms of
settlements pursuant to special notice procedures if EPA
determines that such procedures would facilitate an
agreement and would expedite a response action at the site;
• information on the recipient's potential liability;
• conditions of the enforcement moratorium;
• description of a good faith offer;
• description of future response actions, if known;
• statement of work to be performed;
• additional information, including information on other PRPs,
site fact sheets, volumetric ranking if available;
• demand for past costs; and
• for RD/RA and non-time-critical removal SNLs, a statement
whether the site is eligible for orphan share compensation
under the "Orphan Share Policy" (June 3, 1996) (see
Chapter 1 References, p. 41) and, if so, the maximum
amount appropriate for compensation.
EPA may, at its discretion, choose not to follow special notice
procedures. It may instead send a letter to PRPs stating that it is
not going to use special notice procedures because, for instance,
negotiations are already underway, and outlining EPA's plans for
the negotiations. Due to the urgency of emergency and time-
critical removals, Section 122 does not require special notice
procedures. For procedures applicable to removals, refer to the
"Superfund Removal Procedures Removal Enforcement Guidance for
Chapter 1: Overview of CERCLA and PRP Searches
36
-------
PRP Search Manual
September 2009
On-Scene Coordinators" (April 1992). The volume referenced is
one of a ten-volume series of guidance documents collectively titled
Superfund Removal Procedures. (Chapter 1 References, p. 41.)
1.3.3
Types of
Settlements
EPA sets forth settlements in legal documents that describe the
requirements of the response action. If the response action is an
RI/FS or RD, EPA usually requests that the PRPs enter into an
administrative order on consent (AOC). An AOC is a legally binding
administrative order that EPA and the PRPs agree to and sign. A
consent decree (CD) is required for an RA; it is similar to an AOC in
that negotiations are bilateral. A CD, however, is a judicial action
that must be approved by DCO, filed with a complaint in federal
court, and approved by a judge before it becomes final.
The above settlement devices are addressed in more detail in the
"Addendum to the Interim CERCLA Settlement Policy." (See
Chapter 1 References, p. 41.)
A number of activities take place in preparation for negotiations for
removals, RI/FS, and RD/RA, including substantial completion of
the PRP search. It is important that sufficient attention be given to
the PRP search before these negotiations commence. PRP search
activities may be initiated at the preliminary assessment and site
investigation (PA/SI) phase of the enforcement timeline.
Chapter 1: Overview of CERCLA and PRP Searches
37
-------
PRP Search Manual
September 2009
Chapter 1 References
Name
Section
Location
Comprehensive Environmental 1.1
Response, Compensation, and
Liability Act of 1980, as
amended by the Superfund
Amendments and
Reauthorization Act of 1986
1.1.1
1.1.1
1.1.3
National Oil and Hazardous
Substances Pollution
Contingency Plan
Oil Pollution Act of 1990
Interim Guidance on the
Ability to Pay and De minimis
Revisions to CERCLA Section
122(g) by the Small Business
Liability Relief and Brownfields
Revitalization Act (May 17,
2004
Clean Air Act 1.2.2
Clean Water Act 1.2.2
Toxic Substances Control Act 1.2.2
Resource Conservation and 1.2.2
Recovery Act
CERCLA Hazardous 1.2.2
Substances
42 U.S.C. §9601 etseq.
http://www.epa.gov/emergencies/lawsregs
.htm#laws
40 C.F.R. Part 300
http://www.epa.gov/emergencies/lawsregs
.htm#laws
33 U.S.C. §2701 etseq.
http://www.epa.gov/emergencies/lawsregs
.htm#laws
http://www.epa.gov/compliance/resources
/policies/cleanup/superfund/atp-demin-
122g-04.pdf
42 U.S.C. §7401 etseq.
http://www.epa.gov/emergencies/lawsregs
.htm#laws
33 U.S.C. § 1251 etseq.
http://www.epa.gov/emergencies/lawsregs
.htm#laws
15 U.S.C. §2601 etseq.
http://www.epa.gov/agriculture/lsca.html
42 U.S.C. §6901 etseq.
http://www.epa.gov/epawaste/index.htm
40 C.F.R. Part 302
http://www.epa.gov/emergencies/lawsregs
.htm#laws
Chapter 1: Overview of CERCLA and PRP Searches
38
-------
PRP Search Manual
September 2009
Chapter 1 References
Name
Section
Location
Comptroller Policy 1.2.3
Announcement 87-17,
Interest Rates for Debts
Recoverable Under the
Superfund Amendments and
Reauthorization Act of 1986
(September 30, 1986)
Small Business Liability Relief 1.2.5
and Brownfields Revitalization
Act of 2002
Standards and Practices for All 1.2.5
Appropriate Inquiries, 40
C.F.R. Part 312 (November 1,
2005)
Fact Sheet on All Appropriate 1.2.5
Inquiries Final Rule (October
2005)
Internal Revenue Code of 1.2.6
1986
Contiguous Property Owner 1.2.6
Guidance Reference Sheet
(February 5, 2004)
Superfund Recycling Equity 1.2.6
Act (CERCLA Section 127)
Standards for the 1.2.6
Management of Used Oil
Federal Insecticide, Fungicide, 1.2.6
and Rodenticide Act
Revised Settlement Policy and 1.2.7
Contribution Waiver Language
Regarding Exempt "De
micromis" and Non-Exempt
"De micromis" Parties
(November 6, 2002)
http://www.epa.gov/ocfo/finstatement/
superfund/int_rate.htm
Public Law 107-118 (H.R. 2869)
http://www.epa.gov/brownfields/pdf/
hr2869.pdf
http://ecfr.gpoaccess.gov/cgiA/text/text-
idx?c=ecfr&tpl=/ecfrbrowse/Title40/40cfr3
12_main_02.tpl
http://www.epa.gov/brownfields/aai/aaLfi
nal_factsheet.pdf
http://www.irs.gov/taxpros/article/0,,id=9
8137,00.html
http://www.epa.gov/compliance/resources
/policies/cleanup/superfund/contig-prop-
faq.pdf
42 U.S.C. §9627
http://www.epa.gov/emergencies/lawsregs
.htm#laws
40 C.F.R. Part 279
http://www.access.gpo.gov/nara/cfr/waisi
dx_08/40cfr279_08.html
7 U.S.C. § 136etseq.
http://www.epa.gov/agriculture/lfra.html
http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
wv-exmpt-dmicro-mem.pdf
Chapter 1: Overview of CERCLA and PRP Searches
39
-------
PRP Search Manual
September 2009
Chapter 1 References
Name
Section
Location
Interim Policy on CERCLA 1.2.7
Settlements Involving
Municipalities or Municipal
Wastes (December 6, 1989)
Policy for Municipality and 1.2.7
Municipal Solid Waste CERCLA
Settlements at NPL Co-
Disposal Sites (February 5,
1998)
Interim Guidance on the 1.2.7
Municipal Solid Waste
Exemption Under CERCLA
Section 107(p) (August 20,
2003)
Policy Toward Owners of 1.2.7
Property Containing
Contaminated Aquifers
(May 24, 1995)
Bona Fide Prospective 1.2.7
Purchasers and the New
Amendments
(May 31, 2002)
Windfall Lien Administrative 1.2.7
Procedures (January 8, 2008)
Interim Enforcement 1.2.7
Discretion Policy Concerning
"Windfall Liens" Under Section
107(r) of CERCLA (July 16,
2003)
Policy Towards Owners of 1.2.7
Residential Property at
Superfund Sites
(JulyS, 1991)
Interim Guiding Principles for 1.2.7
Good Samaritan Projects at
Orphan Mine Sites and
Transmittal of CERCLA
Administrative Tools for Good
Samaritans (June 6, 2007)
http://www.epa.gov/compliance/resources
/policies/cleanup/superfund/munwst-
dclay-mem.pdf
http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
munic-solwst-mem.pdf
http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
interim-msw-exempt.pdf
http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
contamin-aqui-rpt.pdf
http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
bonf-pp-cercla-mem.pdf
http://www.epa.gov/compliance/resources
/policies/cleanup/superfund/wf-admin-
mem.pdf
http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
interim-windfall-lien.pdf
http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
policy-owner-rpt.pdf
http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
cercla-goodsam-principles-mem.pdf
Chapter 1: Overview of CERCLA and PRP Searches
40
-------
PRP Search Manual
September 2009
Chapter 1 References
Name
Section
Location
Sample General Notice Letter 1.3.1
(April 30, 2008)
Revised Final Guidance on 1.3.1
Disseminating EPA's SBREFA
Information Sheet to
Businesses at the Time of
Enforcement Activity
(August 31, 1999)
Small Business Information 1.3.1
Sheet
(October 2007)
Orphan Share Policy 1.3.2
(June 3, 1996)
Superfund Removal 1.3.2
Procedures
Removal Enforcement
Guidance for On-Scene
Coordinators (April 1992)
Addendum to the Interim 1.3.3
CERCLA Settlement Policy
Issued on December 5, 1984
(September 30, 1997)
http://www.epa.gov/compliance/resources
/policies/cleanup/superfund/gnl-mod-
08.pdf
http://www.epa.gov/compliance/
resources/policies/civil/sbrefa
http://www.epa.gov/compliance/resources
/publications/incentives/smallbusiness/sma
llbusresources.pdf
http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
orphan-share-rpt.pdf
OSWER Directive 9360.3-06; NTIS Product
Code PB92963409
http://www.ntis/search/index.aspx
http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
adden-settle-mem.pdf
Chapter 1: Overview of CERCLA and PRP Searches
41
-------
PRP Search Manual
September 2009
2.0 PRP Search Overview 42
2.1 Roles and Responsibilities 44
2.1.1 PRP Search Team 45
2.1.2 Opportunities for PRP Input 52
2.2 PRP Search Plan 56
2.2.1 Timing and Duration 59
2.3 Information Disclosure Issues 70
2.4 Document Filing and Retention Issues 78
2.4.1 Document Management 79
2.4.2 CERCUS/WasteLAN[[[ 79
References.
.81
-------
PRP Search Manual
September 2009
2.0 PRP Search Overview
IWZAIIUOII.S HSTE SITE
Oil NOT ESTEII
ran;:
IIESEST.VIHUTii1'
ri) imiiijn, run FinmiEB
The primary purpose of the PRP search is to identify parties who
may be liable under CERCLA. The PRP search is designed to gather
information establishing the elements of liability for each PRP.
Effective PRP searches are fundamental to the Agency's
"enforcement first" strategy of obtaining increased PRP involvement
in conducting response activities, and information obtained in the
course of PRP searches serves a variety of other purposes in the
remedial site response process. These purposes include:
finding out from whom to obtain site access;
.1
• facilitating site characterization by providing information on
hazardous substances used, site boundaries, disposal
practices, and locations for conducting sampling;
• identifying individuals who may have historical information
or historical knowledge of site activities;
• assessing potential applicable or relevant and appropriate
requirements (ARARs) (See Chapter 2 References, p. 81.);
• developing waste-in lists and volumetric rankings; and
• assessing settlement prospects and litigation risks.
(See Exhibit 1, "Overview of the PRP Search Process.")
Achieving the Agency's goals of accelerating cleanups, maximizing
PRP involvement in response actions, and reaching fair settlements
OECM Memorandum, "Entry and Continued Access Under CERCLA" (June 5,
1987) (See Chapter 2 References, p. 81.)
Chapter 2: PRP Search Planning Overview
42
-------
PRP Search Manual
September 2009
Exhibit 1. Overview of the PRP Search Process
Share Factual, Non-Enforcement-Sensitive Information with 1
PRPs as Appropriate (e.g., Site Chronology and Property |^™^™H
History, PRP Names, Waste-in Information) |
Special Notice
Letters*
Com pile, Organ ire &
Analyze Responses
104(e) Fbllowup/Compel
lorn pliancewith 104(e) Requests
as Necessary and Appropriate
"I Ongoing Review and Quality Assurance U
generally dictated by response planning. The baseline phase of the PRP search
purpose of RI/FS Special Notice at least 90 days before the planned RI/FS
ility and ability to pay will be collected during the RI/FS and follow-up phase,
ea evidence will be completed, reviewed, and updated, if necessary, prior
if necessary. Collection of such improv*
to issuance of RD/RA SNLs.
** Completed at least 90 days prior to issuance of RD/RA Special Notice Letters.
NOTE:
Thisexhibit presents an overview of a
typical PRP search. It is not Intended as
a prescribed process for every PRP search.
The appropriate process for a particular
site Is a matter for the professional judgment
of the PRP search team.
Chapter 2: PRP Search Planning Overview
43
-------
2.1
Roles and
Responsibilities
PRP Search Manual
September 2009
with PRPs requires careful and coordinated planning of the PRP
search. Planning involves identifying key personnel involved in the
PRP search, outlining their roles and responsibilities, determining
the timing and duration of PRP search activities, and identifying
tasks to be performed. The PRP search planning process should be
a team effort.
In recent years, there has been increased planning, coordination,
and integration among remedial, site assessment, and removal
staff, and increased dedication of resources to the post-construction
phase of the Superfund timeline, (e.g., five-year reviews and
institutional controls).
Management Team
In some regions, this strategy has been facilitated by a standing
management team of regional EPA decision makers. The purpose
of such a team is to ensure appropriate and effective coordination,
communication, and integration of Superfund responses, and
adequate personnel, funds, and decision-making processes to
accelerate site responses. The team will generally take PRP search
information into consideration when establishing priorities and
direction for the site response.2 Although the management team is
not involved in the day-to-day management of the PRP search, it
may request specific information about PRPs to determine, (e.g.,
the appropriate enforcement response or potential dollar needs for
orphan share compensation). Greater emphasis on the post-
construction phase does not reduce the need to apply PRP search
resources early in the listing phase for new NPL sites and sites with
significant remaining future response work, and the management
team can play an important role in determining the appropriate
sites to "front load" with those resources.
The National Prioritization Panel also will consider PRP search information when
prioritizing sites proposed for Fund-lead remedial action.
Chapter 2: PRP Search Planning Overview
44
-------
PRP Search Manual
September 2009
2.1.1 Each of EPA's regional offices has its own unique organizational
nnn *> •_ •*• structure and procedures for performing PRP searches, and the
PRP Search Team
titles of persons performing search tasks may vary from region to
region. Search and search-related tasks may be performed by
persons with one or more of the following job titles: civil
investigator; remedial project manager; on-scene coordinator; case
developer; attorney; paralegal; enforcement specialist;
enforcement officer; enforcement project manager; cost recovery
specialist; and environmental protection specialist. Some general
descriptions of key players and responsibilities, however, cut across
regional variations.
PRP Search Manager
The PRP search manager has the lead for overseeing each site-
specific PRP search. He or she is responsible for selecting an
appropriate combination of the search personnel listed above to
ensure an effective case team to perform the following tasks as
necessary and appropriate:
• establish PRP search priorities;
• establish PRP search strategy;
• develop PRP search work assignments, budgets, and
schedules;
• manage contractor-conducted search tasks;
• define the scope of the search;
• review baseline, interim, and final contractor deliverables;
• introduce the contractor to state and local government
contacts, as needed;
• issue information request, general notice, and special notice
letters;
Chapter 2: PRP Search Planning Overview
45
-------
PRP Search Manual
September 2009
• follow up on all tasks necessary for conducting a complete
search;
• implement quality assurance and quality control (QA/QC)
procedures to ensure the accuracy of data gathered during
the search;
• gather adequate information for special notice letters;
• perform ATP analysis (ABEL/INDIPAY);
• gather adequate evidence of PRP liability and ability to pay;
• obtain site costs as appropriate for potential cost recovery;
and
• afford the universe of PRPs an opportunity to provide input
into the completeness of the Agency's PRP search efforts.
Following are general descriptions of several categories of search
personnel that comprise the search team, keeping in mind that in
some regions similar tasks and certain post-search tasks may be
performed by search personnel with one of the other job titles listed
above.
Civil Investigator
The civil investigator (CI) typically performs specialized PRP search
tasks such as interviews with private parties and specialized
investigative work related to, (e.g., waste disposal or PRP
identification). CIs may assist PRP search managers or case
attorneys in preparing CERCLA Section 104(e) information request
letters, reviewing evidence, and conducting interviews. In some
regions, CIs are responsible for all PRP search activities; in other
regions, contractors may be used to do a portion of the work, such
as title searches, and CIs are responsible for all other activities. In
some regions, CIs work exclusively on either removal or remedial
PRP searches. Potential advantages to this approach are that it
Chapter 2: PRP Search Planning Overview
46
-------
PRP Search Manual
September 2009
allows the investigator to become familiar with the special types of
investigative situations that each presents, prevents conflicts
between the remedial and removal programs, and ensures an
investigator's availability in cases involving time-critical removals.
PRP searches often involve complex evidentiary and legal issues. If
PRP searches are conducted or managed by remedial project
managers, on-scene coordinators, or other personnel not
experienced in performing enforcement investigations, it is
advisable to involve both CIs or other enforcement staff and
counsel in planning PRP search activities as well as in reviewing
information obtained, contractor deliverables, and conclusions
drawn.
Remedial Project Manager
The remedial project manager (RPM) is the Agency official
designated to coordinate, monitor, and direct remedial and certain
other response activities at NPL sites. RPMs may serve as work
assignment managers (WAMs) or contracting officer's
representatives (CORs) on a PRP search or assist other Agency
personnel performing or overseeing the search. RPMs are
responsible for overseeing PRPs' performance of response activities
at enforcement-lead sites. Once PRPs have agreed to perform
response actions at a site, the RPM is responsible for ensuring that
studies and cleanup activities are performed correctly and in
accordance with the AOC or CD, CERCLA, the NCP, and relevant
policy and guidance. Moreover, RPMs may be involved in RI/FS,
engineering evaluation and cost analysis (EE/CA), or RD/RA
negotiations. As they work extensively with PRPs, it is essential
that RPMs understand Agency policies and procedures for
completing a thorough PRP search whether or not they are involved
in performing it.
Chapter 2: PRP Search Planning Overview
47
-------
PRP Search Manual
September 2009
On-Scene Coordinator
The on-scene coordinator (OSC) is the Agency official designated to
coordinate, monitor, and direct removal actions. A removal action
is conducted to respond to a release or threatened release and
must be performed within a short period of time. OSCs need basic
information, such as property ownership, very early in the removal
action to enable them to get access to the site and identify the
source of the release or threat of release. The OSC may ask for a
thorough PRP search once the removal is under way or the release
or threat has been addressed. The nature and extent of an OSC's
involvement in PRP search efforts will depend on the nature of the
removal and the urgency of responding to the release or threat of
release. Like RPMs, OSCs need to understand the PRP search
process whether or not they are actively involved in the search
itself. (See subsection 2.2.1 of this manual for other PRP search-
related tasks during removal actions.)
Paralegal
Some regions use paralegals to support PRP searches. Paralegals
work with case attorneys and other staff to develop the evidence to
support a finding of liability. They are generally skilled at
researching case law, statutes, rules, and legislative histories using
legal research databases such as Lexis/Nexis and Westlaw, which
are made available to regional legal staff. Paralegals' research
skills often extend to obtaining information regarding corporate
filings from secretaries of state, and information regarding PRPs
from business, news, and internet sources. Depending on the skills
of the paralegal and the organizational structure in a region,
paralegals may perform some of the same tasks as CIs or PRP
search managers, including interviewing potential witnesses and
PRPs. Paralegals also may research property ownership, perform
limited title searches, and obtain deeds and maps relating to sites.
Paralegals draft CERCLA Section 104(e) information requests and
review and summarize PRP responses to those requests.
Chapter 2: PRP Search Planning Overview
48
-------
PRP Search Manual
September 2009
Paralegals work closely with regional attorneys to trace corporate
successors and help determine successor liability and liability of
parent or subsidiary corporations. This often involves searching
archives and public records for historical information.
EPA Attorney
The level of involvement of the case attorney in the PRP search
may vary from region to region, site to site, and with the nature
and number of legal issues associated with the site. The case
attorney should be involved as early as possible to ensure that
collected information meets evidentiary standards and that the
scope of the PRP search is appropriate. It is very important to
obtain attorney input regarding sufficiency of evidence questions,
title searches, conducting interviews, definition of site, and
classification of PRPs (e.g., "de micromis", insolvent). As most
PRPs retain legal counsel to represent them throughout
performance of the response action, it is important that the
regional case attorney, at a minimum, be involved in identification
of critical PRP search planning and implementation milestones. In
addition to preparing litigation referrals to and serving as EPA's
main contact with DCO, EPA attorneys play a major role in all
phases of the Superfund process from site discovery through
cleanup and post-construction activities.
Contractor
As mentioned earlier, each region performs PRP searches in a
slightly different manner, depending on the organization of the
region, availability of staff with PRP search experience, number of
PRP searches, and other factors. Most, if not all regions, however,
also employ contractors in some capacity when performing PRP
searches. Contractor support activities include establishing and
maintaining PRP databases, performing title searches, preparing
PRP search reports, and reviewing and compiling records. (See
Appendix A for a sample "Performance Work Statement for
Chapter 2: PRP Search Planning Overview
49
-------
PRP Search Manual
September 2009
Enforcement Support Services," including PRP search support.)
Contractors may not perform inherently governmental functions.
Prohibited activities include making legal or liability determinations
and approving and signing CERCLA Section 104(e) information
request letters. Contractors may, however, draft and mail Section
104(e) letters and other correspondence. Regions may share
enforcement support contracts with one or more other regions or
enter into interagency agreements enabling them to access sister
agencies' contractors to assist in PRP search efforts. Regional
contracting officers (COs) and project officers (POs) should be
consulted regarding award, period of performance, scope of work,
and suitability of regional enforcement contracts for obtaining PRP
search task support.
Financial Analyst
There are situations when specialized expertise is needed to make
ability to pay determinations, assess complex PRP financial records
or business transactions, and evaluate bankruptcy claims. In these
instances, regions may use in-house financial analysts, EPA's
National Enforcement Investigations Center (NEIC) staff expertise,
or contractors with this expertise. Financial analysts may also help
evaluate compliance with the financial assurance provisions of
settlement agreements.
SEE Personnel
The Senior Environmental Employment (SEE) program was formally
established through the Environmental Programs Assistance Act
(June 12, 1984). (See Chapter 2 References, p. 81.) Under this
Act, EPA is authorized to enter into cooperative agreements (CAs)
with certain private, non-profit organizations designated by the
secretary of labor as organizations that are eligible to receive funds
under Title V of the Older Americans Act (1965). (See Chapter 2
References, p. 81.) The Act specifies that individuals age 55 and
Chapter 2: PRP Search Planning Overview
50
-------
PRP Search Manual
September 2009
older in temporary, short-term assignments can provide technical
assistance to federal, state, and local environmental agencies for
projects on pollution prevention, abatement, and control. Most, if
not all, regions participate in the SEE program.
Although not EPA employees, SEE personnel working for EPA in a
PRP search investigative role could take on the following tasks:
• assisting in coordinating with other regional PRP search
personnel to assure effective implementation of national
investigative policy or guidance; and
• providing training or technical assistance on possible
techniques and approaches to other personnel who are
involved in fact finding or information gathering.
If SEE personnel are used to support PRP searches or
investigations, they should have a general knowledge of criminal
and civil provisions of environmental protection statutes, knowledge
of investigation principles and techniques, skill in the use of
investigative techniques, and the ability to conduct interviews and
draft interrogatories. Like other contractors, SEE employees must
identify themselves as contractors and may not provide legal
advice, make inherently governmental decisions, or sign CERCLA
Section 104(e) letters or other EPA correspondence.
Community Involvement
The PRP Search Team should consider establishing communication
with the Community Involvement Coordinator early in the search
process as community involvement activities may produce many
benefits, including information on additional PRPs. Areas adjacent
to Superfund sites often contain numerous residents who may have
lived in the area for a long time. Many of these residents have
Chapter 2: PRP Search Planning Overview
51
-------
PRP Search Manual
September 2009
specific knowledge of the site and are usually willing to share their
information. The local community should routinely be considered a
potential source of information.
2.1.2
Opportunities for
PRP Input
As PRPs have an interest in identifying additional parties with whom
response costs might be shared - and may have information that
could lead to such parties - EPA should provide PRPs the
opportunity to participate in or provide input to the search.3 PRP
input may speed up the settlement process, help avoid third-party
litigation, and facilitate private allocation efforts. In addition, PRPs
may be invaluable in identifying witnesses and parties with
pertinent information. It is up to EPA to determine whether PRP
participation will be beneficial, define the nature and extent of such
participation, evaluate information submitted by the PRPs, and
maintain oversight of their search activities. It is advisable to make
this determination as early in the search process as possible.
CERCLA Section 104(e) information request letters and GNLs may
be used to invite PRPs to participate in the search and submit
information about additional parties.4
If PRPs express interest in participating in the search, EPA must
determine whether the potential benefits of their participation
outweigh the burden of directing and overseeing their activities.
Factors that EPA may weigh in making this determination include:
• whether the PRPs have the ability to provide needed
information;
The case team's planning of response and enforcement actions should allow
sufficient time for EPA to issue follow-up CERCLA Section 104(e) information request
letters to newly identified parties before EPA makes final PRP determinations.
4
Model CERCLA Section 104(e) letters include questions seeking information
from PRPs about other PRPs. (See "Transmittal of Sample Documents for More Effective
Communication in CERCLA Section 104(e)(2) Information Requests" (June 30, 1995),
Chapter 2 References, p. 81, for sample information request letter questions.)
Chapter 2: PRP Search Planning Overview
52
-------
PRP Search Manual
September 2009
• whether information obtained by the PRPs may raise
confidentiality issues;
• whether PRPs have cooperated with EPA and been
responsive to its information requests;
• whether third-party tort issues or contribution litigation exist
or may arise among PRPs;
• whether the PRPs have any advantage, bias, or interest that
could influence their performance of search-related tasks;
• site-specific factors such as timing or large numbers of
known PRPs.
Direction and Oversight
Proper direction and oversight are necessary to maximize the
potential benefits of PRP participation in the search and to ensure
that PRP-assisted searches are conducted in a manner both
effective and consistent with overall Agency responsibility for the
search. In some circumstances, EPA may find that channeling PRP
input through a steering committee or other organized group of
PRPs whose liability has been established facilitates direction and
oversight. In addition, the following guidelines are recommended:
• The PRPs should commit themselves to working with EPA in
good faith for the duration of the search.
• The PRPs should be in compliance with any CERCLA Section
104(e) information requests issued to them and commit
themselves to supplement those responses in a timely
manner as additional information becomes available.
• The PRPs must not represent themselves as EPA personnel
when performing PRP search-related tasks.
Chapter 2: PRP Search Planning Overview
53
-------
PRP Search Manual
September 2009
• Do not share with the PRPs any CBI, trade secrets, or other
sensitive information obtained from PRPs who are not
participating in the search.
• Document the PRPs' tasks, roles, authorities, deadlines, and
any tasks they may perform without EPA oversight in
writing.
• Advise the PRPs that they must adhere to deadlines in order
to avoid delays and ensure that EPA has enough time to
consider information for a particular purpose (e.g., issuance
of SNLs).5
• Advise the PRPs that the work they perform must be fully
documented so as to support its completeness and accuracy,
and that all supporting records and documentation must be
submitted to EPA for possible inclusion in the site's
administrative record or for use as evidence in federal court.
• Require that the PRPs explain the legal and factual basis of
identified parties' liability and submit documentation
supporting their determination.
• Require that the PRPs explain all assumptions made in
compiling all waste-in lists they submit.
• Advise the PRPs that information submitted regarding other
parties may be used for litigation and negotiation purposes,
and ensure that they understand how to treat information
containing personal privacy information or claimed as
confidential business information (CBI). (Before sharing
Failure of the PRPs to meet agreed deadlines may result in EPA takeover of a task
that a PRP has agreed to perform, which may increase PRPs' costs and result in information
being obtained too late to be considered.
Chapter 2: PRP Search Planning Overview
54
-------
PRP Search Manual
September 2009
any information of this kind with other PRPs, check with
your Office of Regional Counsel (ORC) to determine if a
confidentiality agreement should be drafted covering this
information. (Information disclosure issues are discussed in
Section 2.3 of this manual.)
• Explain to the PRPs that although the Agency appreciates
receiving information on additional parties, EPA is not
obligated to explain or justify its decisions regarding
whether or not to pursue those parties.
• Ensure that all PRPs participating in the search have equal
access to information.
• Advise the PRPs of EPA's enforcement discretion policies.
EPA is under no legal obligation to address information provided by
PRPs identifying other PRPs or to advise them whether the new
parties were determined to be PRPs, but the PRPs who provided the
information should receive some feedback or explanation as to why
the newly identified parties were or were not named.6
EPA Responsibilities
Just as EPA determines whether PRPs will participate in the search,
it determines what tasks they will perform. Regardless of the
nature and extent of PRP participation, however, EPA - and
specifically the Case Team - is responsible for performing the
primary search functions and bringing the search to a successful
conclusion. The Agency's prerogatives include:
EPA personnel are required to document in an enforcement-confidential
memorandum their decisions to exclude certain PRPs from any CERCLA Section 106 UAOs
that are issued or not to issue UAOs to late-identified PRPs. (See OSRE Memorandum,
"Documentation of Reason(s) for Not Issuing CERCLA §106 UAOs to All Identified PRPs"
(August 2, 1996), Chapter 2 References, p. 82.)
Chapter 2: PRP Search Planning Overview
55
-------
PRP Search Manual
September 2009
2.2 • determining the timing and extent of the PRP search;
PRP Search . deciding which parties should receive CERCLA Section
Plan 104(e) information request or notice letters;7
• evaluating information developed in the course of the
search;
• deciding which parties to name as PRPs; and
• determining the terms of settlement with PRPs.
PRP Search Tasks
As part of their efforts to identify additional parties, PRPs may
perform associated tasks such as:
• conducting title searches;
• developing waste-in lists;
• preparing volumetric rankings;
• performing corporate and other public document research;
• providing information on industry processes and waste
streams;
• identifying and locating witnesses and other knowledgeable
parties;
• interviewing witnesses and providing EPA with notes and
affidavits;8
OSRE Memorandum, "Revised Final Guidance on Disseminating EPA's SBREFA
Information Sheet to Businesses at the Time of Enforcement Activity" (August 31, 1999)
,states that EPA will notify small businesses of their right to comment on regulatory
enforcement activities when EPA makes its "initial enforcement contact" with the business.
The initial enforcement contact under CERCLA is typically a general or special notice letter.
(See Chapter 2 References, p. 82, for the memorandum and current "Small Business
Information Sheet.")
o
EPA may choose to re-interview witnesses originally interviewed by other PRPs
and obtain its own affidavits or witness statements.
Chapter 2: PRP Search Planning Overview
56
-------
PRP Search Manual
September 2009
funding neutral ADR professionals to assist in information-
gathering efforts;
establishing and managing document repositories of publicly
available, non-privileged, non-CBI site information;
developing databases to make site information accessible to
widely dispersed parties; and
sharing information from in-house databases.
The site-specific PRP search plan focuses on the "nuts and bolts" of
how the search will be conducted; it identifies the goals of the
search and the tasks necessary to achieve them. The PRP search
plan should be considered iterative in nature since it is not possible
to foresee all the types of information that may need to be
gathered, the questions and issues that may develop during the
baseline phase, or the tasks necessary to complete as part of a
follow-up search. PRP search plans should not be confused with
PRP search work plans. Work plans are documents prepared by
contractors that describe in detail the work to be performed and
identify proposed staff in response to a scope of work prepared and
issued by EPA or another contracting agency.
Since each site involves a unique set of legal and technical issues,
there is no fixed set of tasks that must be performed during every
PRP search; the nature and number of search tasks will vary from
site to site. For instance, a PRP search at an industrial plant site
with only a few owner/operators may require only a baseline effort
with few or no follow-up tasks. At a complex site, on the other
hand, a baseline search is insufficient and will require follow-up
activities. (See Appendix B for a checklist of PRP search tasks.)
The plan should have the flexibility to respond to needs identified in
any part of the PRP search process. To ensure that the PRP search
plan addresses potential legal, technical, and policy issues that may
be associated with the search, the PRP search manager should
include all EPA staff working on the site (e.g, CI, RPM, OSC,
Chapter 2: PRP Search Planning Overview
57
-------
PRP Search Manual
September 2009
attorney) in the development of the plan. (See Exhibit 2, "PRP
Search Process Flow Chart.") The PRP search plan should be fully
implemented before RD/RA negotiations commence.
Despite the differences among sites, PRP search plans generally
address the following:
• Defining search tasks and the order in which they should be
performed, including follow-up tasks to repair data gaps that
appear during the search ;
• Defining resources needed to accomplish search tasks,
taking into consideration site factors that may require
specialized resources and skills, such as:
• an unusually large number of generators;
• PRPs that may qualify for an exemption;
• area-wide ground water contamination or surface
water contamination where sources are not apparent;
• non-contiguous sites (e.g., where one company owned
or operated multiple sites and transshipped wastes
between them); or
• mining sites, particularly those that are very old or
involve large watersheds;
• Developing a detailed scope of work to obtain contractor
support, if necessary;
• Establishing a schedule for completion of search tasks;
• Managing the search, including:
• roles and responsibilities of all members of the PRP
search team;
Chapter 2: PRP Search Planning Overview
58
-------
PRP Search Manual
September 2009
procedures for assessing search progress, conducting
evidence reviews, and identifying impediments to
progress; and
describing the PRP Search Team's strategy for
encouraging PRP participation in the search.
2.2.1
Timing and
Duration
The PRP search should be initiated as soon as possible after it
becomes reasonably certain that EPA will incur response costs at a
site. Searches may be performed in phases. A preliminary search
may be initiated during a removal response or during the
preliminary assessment/site investigation (PA/SI) if a removal
action is anticipated before a site is proposed for listing on the NPL.
Many traditional pre-remedial site assessment tasks provide
information needed for the PRP search. These tasks need not be
duplicated by the PRP search staff. Appendix C contains a
checklist for removal and pre-remedial sites that was developed to
assist early on-site responders (e.g., CIs, OSCs) in documenting
valuable information on PRPs and site conditions. To avoid
duplication of these tasks, early on-site responders may fill out the
checklist as completely as possible and forward a copy to the
regional CI or enforcement staff person conducting the PRP search,
put a copy in the site file, and provide a copy to the case attorney.
Basic tasks needed at any site, including removal sites, include (1)
identifying the current site owner and, if applicable, operator, and
(2) gaining access to the site. Identifying the owner/operator is
particularly urgent at removal sites as the early responder needs to
determine whether the party is capable of or willing to perform
actions to stabilize conditions at the site. Once a removal response
has been completed or the site has been proposed for listing on the
NPL, a more extensive PRP search may be undertaken based on
these preliminary tasks. In practice, depending on resources and
Chapter 2: PRP Search Planning Overview
59
-------
PRP Search Manual
September 2009
Exhibit 2. PRP Search Process Flow Chart
0
DAYS
90
DAYS
180
DAYS
270
DAYS
360
DAYS
450
DAYS
540
DAYS
• REVIEW AGENCY FILES
• DEVELOP PRP SEARCH STRATEGY '
• INITIATE WORK ASSIGNMENT (IF CONTRACTOR SUPPORT IS NEEDED)
• HOLD WA KICK-OFF MEETING WITH CONTRACTOR
• REVIEW, REVISE, AND APPROVE WORK PLAN
• COLLECT FEDERAL, STATE AND LOCAL GOVT RECORDS
• PREPARE LIST OF POTENTIAL INTERVIEWEES
• DEVELOP AND REVIEW INTERVIEW QUESTIONS
• CONDUCT FIRST-ROUND INTERVIEWS: GOVT OFFICIALS (AND
PRIVATE PARTIES, IF POSSIBLE)
• PERFORM TITLE SEARCH
• ACCESS CERCLISIII/WasteLAN FOR EXISTING PRP INFORMATION
• UPDATE PRP NAMES AND MAILING ADDRESSES
• PREPARE LIST OF 104(e) LETTER RECIPIENTS
• DEVELOP AND REVIEW 104(e) LETTER QUESTIONS
• ISSUE FIRST-ROUND 104(e) LETTERS
• SET UP CORRESPONDENCE TRACKING SYSTEM
• REVIEW FIRST-ROUND 104(e) LETTER RESPONSES
• COLLECT ALL RECORDS FROM OWNER/OPERATOR
AND NON-GOVERNMENT SOURCES
• DEVELOP ADDITIONAL PRP NAMES AND MAILING ADDRESSES
• PROVIDE OPPORTUNITY TO PRPs FOR INPUT INTO PRP SEARCH
BASELINE REPORT PHASE
I ISSUE SECOND-ROUND 104(e)/FOLLOW-UP LETTERS (AS NECESSARY AND APPROPRIATE)
• REVIEW SECOND-ROUND 104(e)/FOLLOW~UP RESPONSES
• COLLECT INFORMATION ON PRP FINANCIAL STATUS
• PREPARE BASELINE REPORT
FOLLOW-UP PHASE
LEGEND
CONTRACTOR RESPONSIBILITIES
EPA RESPONSIBILITIES
SUGGESTED STARTING POINT •
• UPDATE PRP SEARCH STRATEGY
• MEET WITH CONTRACTOR (IF APPLICABLE) TO DISCUSS FOLLOW-UP TASKS
• IMPLEMENT BASELINE REPORT RECOMMENDATIONS
• PREPARE LIST OF SECOND-ROUND INTERVIEWEES
• DEVELOP AND REVIEW SECOND-ROUND INTERVIEW QUESTIONS
• CONDUCT SECOND-ROUND INTERVIEWS
• IDENTIFY GENERATOR/TRANSPORTER INFORMATION SOURCES
• COLLECT GENERATOR/TRANSPORTER RECORDS
• PROVIDE OPPORTUNITY FOR PRP INPUT INTO
COMPLETENESS AND THOROUGHNESS OF PRP SEARCH
• SET-UP TRANSACTIONAL DATABASE
• CONDUCT SPECIALIZED SEARCH TASKS
• ISSUE THIRD-ROUND 104{e)/FOLLOW-UP
LETTERS (IF NECESSARY AND APPROPRIATE)
• REVIEW THIRD-ROUND 104(e)/
FOLLOW-UP RESPONSES
• DEVELOP VOLUMETRIC
RANKING/WASTE-IN LIST
• CONDUCT FINANCIAL
ASSESSMENT OF PRPS
PREPARE INTERIM-FINAL PRP SEARCH REPORT*
ISSUE GENERAL NOTICE LETTERS -•
ISSUE SPECIAL NOTICE LETTERS •
At sites where no volumetric ranking/waste-in list or financial assessment of PRPs is done, the interim-final PRP search report should be prepared 60 days after review
of third-round 104(e)/follow-up responses. At sites where a volumetric ranking/waste-in list or financial assessment of PRPs is done, the interim-final PRP search report
should be prepared 120 days after these tasks are completed.
Chapter 2: PRP Search Planning Overview
60
-------
PRP Search Manual
September 2009
the urgency of site response actions, there may or may not be a
break between the preliminary PRP search and the more extensive
PRP search.
PRP search activities are generally iterative rather than discrete,
especially at more complex sites. For example, at a watershed
contaminated by mining activity where there are hundreds of waste
piles or discharging mine adits that could be sources, the PRP
search team may wait until technical staff have determined which
waste piles or adits will require a response before undertaking
extensive ownership and operational history research. In such
situations, the region may choose to have a contractor conduct
research on archive, library, and government agency records for all
individual mines and mills within the site, but initiate title searches
for individual mine properties only when a response action for the
facility is being planned.
In conducting the PRP search, regions should consider which of the
tasks outlined below are cost-effective and reasonable to meet
relative to the anticipated overall cleanup costs at the site.9
Regions should document in the site file that they have taken all
reasonable, achievable steps to identify PRPs. Task 1 below is
mandatory for all PRP searches. Ideally, all reasonable, achievable
steps should have been taken prior to completion of cleanup
negotiations, but it is recognized that this may not be feasible in all
situations.
1. PRPs have been afforded opportunities to participate in or
contribute to the PRP search, and the information
contributed has been verified and/or authenticated and
incorporated in the PRP search.
9 Superfund Program Implementation Manual (SPIM) Fiscal Year 2009/2010,
Appendix B-5, OSWER Directive 9200.3-14-1G-T, March 31, 2009;
http://www.epa.gov/superfund/action/process/spim09.htm.
Chapter 2: PRP Search Planning Overview
61
-------
PRP Search Manual
September 2009
2. All relevant and material leads from CERCLA Section 104(e)
responses, interviews, and other primary or source
documents have been pursued.
3. Sufficient information and evidence have been obtained to
support the government's liability case or to determine that
no viable PRPs exist or can be found.
4. PRPs have been categorized and financial and waste
contribution information needed to perform orphan share
calculations has been collected.
5. Ability to pay determinations (including but not limited to
the investigation and analysis of any applicable insurance
coverage) have been made for those PRPs who have
asserted inability to pay in good faith.
6. General notice letters have been issued to all PRPs being
pursued.
The following two sections provide a more detailed discussion of the
timing and duration of PRP searches at removal and remedial sites.
Removal Searches
When PRPs are known and are able to perform the removal, EPA
prefers that they undertake the response action. EPA's goal is to
maximize PRP participation in all aspects of site response, including
the removal process, which means PRP searches in the removal
context are increasingly important.
A PRP investigation should be part of the removal site evaluation
conducted by an OSC. An important reason for initiating a PRP
search during the removal site evaluation is to identify and locate
the property owner(s) in order to obtain access. To the extent
Chapter 2: PRP Search Planning Overview
62
-------
PRP Search Manual
September 2009
appropriate under the circumstances, the search should proceed to
identify other PRPs and attempt to have them perform the
necessary removal action. If the removal is conducted with federal
funds from the Superfund, supplemental searches during a
stabilization action may be warranted to identify PRPs to take over
the action and reimburse EPA's response costs.
The appropriate level of effort to devote to preliminary PRP search
tasks in the removal context depends on the amount of time
between discovery of the release or threatened release and
execution of the action memorandum, the urgency of the need to
respond to the release or threatened release, the estimated cost of
the removal, and available resources. At a minimum, the current
owner and current operator should be identified and, as
appropriate, issued notice. This can often be accomplished readily
and reliably by consulting witnesses and neighbors, signs and
placards, or the local assessor's office.
EPA classifies removals into three categories:
1. Emergency Removals
Emergency removals are initiated in response to a release or
threatened release that requires on-site activities within hours of
determination that an action is needed. In emergency situations
where the PRPs are not immediately known, oral inquiries should
be made of municipal officials and reasonably available on-site
personnel, and reviews of readily available site records should be
undertaken.
The OSC should prioritize and expedite certain search activities to
support the notice, negotiation, and AOC process before the
removal begins. Such activities may include notifying PRPs orally of
their potential liability after consulting with the ORC, and following
up with a notice letter as soon as possible after the oral
Chapter 2: PRP Search Planning Overview
63
-------
PRP Search Manual
September 2009
notification. An expedited work assignment under a regional
enforcement support contract may be used for this purpose. (See
the expedited PRP search support task in the sample "Performance
Work Statement for Enforcement Support Services" in Appendix A.)
Once the site is stabilized, a second, more extensive phase of PRP
identification should commence.
2. Time-Critical Removals
Time-critical removals are initiated when the lead agency
determines, based on a site evaluation, that a removal action is
appropriate and on-site activities must be initiated within six
months.
In time-critical situations, the OSC and PRP search personnel
should follow procedures that expand upon the PRP search activities
discussed for emergency situations. Title searches and on- and off-
site interviews also may be conducted. CERCLA Section 104(e)
information requests that include questions pertaining to
generators, transporters, and financial viability may be used to
obtain additional evidence.
3. Non-Time-Critical Removals
Non-time-critical removals (NTCRs) are initiated when the lead
agency determines, based on a site evaluation, that action is
appropriate but a planning period of more than six months is
available before on-site activities must begin. NTCRs are managed
by RPMs in some regions.
PRP searches for NTCRs are expected, generally, to obtain the
same level of PRP information that would be gathered during a PRP
search at a remedial site. As in remedial searches, follow-up
activities should be completed in time for issuance of GNLs.
Chapter 2: PRP Search Planning Overview
64
-------
PRP Search Manual
September 2009
Typical NTCR PRP search tasks include:
• reviewing EPA, state, and local agency files for information
regarding land use, owners and operators, waste handling,
and disposal permits;
• questioning persons on or near the site in greater detail;
• conducting extensive on-site and off-site interviews;
• reviewing documents left on site, (e.g., manifests (generator
information), business records (business partners, financial
status), payroll records (former employees who may have
information about generators, operators, or on-site waste
disposal));
• issuing CERCLA Section 104(e) letters; and
• conducting title searches.
Other Considerations Applicable to All Removal Searches:
• Neighbors and nearby businesses are often rich sources of
information about former and current site owners and
operators and site activities. These people should be
interviewed as soon as possible.
• Visual evidence linking PRPs to the site (e.g., drum labels,
shipping records, vehicle registrations) should be
documented, photographed, or photocopied, as appropriate.
• The regional attorney should be advised promptly if criminal
activity is suspected.
Chapter 2: PRP Search Planning Overview
65
-------
PRP Search Manual
September 2009
Remedial Searches
Remedial sites typically require comprehensive PRP searches that
may be performed in two or more phases. Search activities should
begin as soon as the region believes that the site would qualify for
listing on the NPL and that a long-term response is appropriate.
These are sites that would score 28.5 under the hazard ranking
system (MRS) or otherwise meet one or more of the following
listing criteria:
• contaminated aquifers used for public drinking water;
• soils in residential areas or schools contaminated with
hazardous substances significantly above background levels;
and
• sensitive environments, and those with threatened or
endangered species, containing hazardous substances
significantly above background levels.
Timing and duration goals for remedial searches should be to:
• identify a sufficient number of viable PRPs concurrently with
the NPL listing of a site to negotiate performance of the
RI/FS;
• identify and classify PRPs such that EPA can offer de minimis
parties a settlement prior to conclusion of the RI/FS (pre-
ROD);
• identify the insolvent and defunct parties so that an orphan
share can be calculated, if appropriate, and the number of
viable PRPs for negotiations can be established prior to the
issuance of RD/RA SNLs; and
Chapter 2: PRP Search Planning Overview
66
-------
PRP Search Manual
September 2009
• identify and classify other parties (e.g., "de micromis" and
municipal solid waste contributors, parties with ability to pay
problems) prior to issuing GNLs.
With potentially numerous and complex legal and technical issues
to address at remedial sites, a phased approach to the PRP search
should be considered. A phased approach may initially yield a core
group of financially viable, capable, and cooperative PRPs with
whom EPA can negotiate performance of the RI/FS. EPA may then
continue PRP search efforts, perhaps with assistance from the PRPs,
while the core group of PRPs is performing the RI/FS.
Follow-up activities to the initial phase of a remedial search will
likely be highly site-specific and may be dictated by leads
developed from prior activities or sampling and response activities.
Relatively straightforward enforcement sites may only require a few
interviews as followup to evidence-preservation activities in order
to establish PRP liability and determine ability to pay. Complex
enforcement sites such as area-wide ground water sites and
landfills typically require more comprehensive follow-up activities
such as issuing a large number of information request letters,
conducting interviews, and developing transactional databases. Old
sites with limited documentation also may present complex liability
issues calling for site-specific follow-up activities.
For planning purposes, regions should identify a general period of
two to five quarters for conducting PRP searches, with more time
allowed for complex, multi-generator sites. Some complex sites,
such as those with area-wide ground water contamination with
multiple sources of hazardous substance releases or stream
sediment contamination, may require specialized tasks that extend
through the RI. Where enforcement staff and resources allow, a
baseline PRP search report should be completed for specific parcels
of land and identify the owner/operator 90 days before the start of
the RI/FS, and the interim-final PRP search report should be
completed at least 90 days prior to issuing RD/RA SNLs. Adhering
Chapter 2: PRP Search Planning Overview
67
-------
PRP Search Manual
September 2009
to these schedules may be problematic or impractical for ground
water and sediment sites as site sampling RI/FS data may be
necessary for PRP identification.
Even if a PRP search seems complete for a specific purpose, EPA
may undertake additional search activities. This is likely to be the
case when follow-up search activities are needed to support the
Agency's cost recovery efforts against non-settlors or at sites with
Trust Fund-financed cleanups. For instance, additional information
request letters can be sent to a facility's suppliers during cost
recovery litigation in an effort to obtain more evidence about the
facility's waste. If EPA is engaged in ongoing litigation (e.g., cost
recovery), PRP search personnel should coordinate closely with the
assigned attorney in issuing any such information requests.
Although strong precedents support the claim that
EPA's administrative information-gathering authorities are separate
and distinct from the civil discovery process, it is necessary for case
teams to carefully consider their available options in the scenario of
ongoing litigation.
2.2.2
Streamlining
Considerations
Due to constrained resources and an increased focus on gathering
more PRP search information earlier, possible ways to increase the
efficiency of a PRP search include:
• a comprehensive enforcement support contract that
provides for expedited PRP search support;
• simultaneous submission of reports to all Agency reviewers;
• open procurement authority for enforcement staff; and
• a removal/pre-remedial checklist to avoid duplicating tasks.
Enforcement support contracts may provide for obtaining expedited
PRP search support. Under the appropriate contract vehicle, any
PRP search-related support could be obtained on an expedited
Chapter 2: PRP Search Planning Overview
68
-------
PRP Search Manual
September 2009
basis. (See Tasks I and 2 of the "Performance Work Statement for
Enforcement Support Services" in Appendix A.) Consult your
region's contracting officer (CO) or project officer (PO) to determine
whether a contract vehicle is in place that allows for expedited PRP
search support.
Some regions are reducing PRP search deliverable review times by
requiring the PRP search contractor to submit copies of the draft
baseline and interim-final PRP search reports simultaneously to the
program and ORC offices. Regions are also encouraged to require
phased deliverables instead of one or two deliverables over the life
of the PRP search. Phasing can reduce the risk of contractors
conducting searches that are entirely off track, increase product
quality, and provide opportunities to modify the PRP search
approach incrementally.
Enforcement investigative staff typically make repeated small
purchases in the performance of their duties, primarily for
photocopying. Some regions have successfully streamlined the
process for reimbursing Agency employees for such out-of-pocket
expenses. Streamlining involves the use of an open procurement
request (PR) against which a succession of claims may be made
instead of preparing a new PR for each claim. Open PRs are
established for each investigator, authorizing the individual to incur
expenses up to the amount committed under the PR. Investigators
obtain reimbursement by providing receipts and documenting a
Standard Form (SF) 1164 referencing the open PR. Enforcement
investigative staff should consult the appropriate regional contract
and financial personnel about specific procedures for open
procurement.
An early on-site responder's checklist is another useful tool for
streamlining the process and reducing duplication of activities.
(See Appendix C.)
Chapter 2: PRP Search Planning Overview
69
-------
PRP Search Manual
September 2009
2.3
Information
Disclosure
Issues
Release of Information
The Agency must follow EPA guidelines, statutory, and regulatory
requirements when determining whether to release information to
other PRPs. The Agency emphasizes the importance of a consistent
approach when releasing information to PRPs about the identity,
source, relative contributions, type, and quantity of wastes at a
site. (See "Revised Policy on Discretionary Information Release
Under CERCLA" (March 31, 1993) and the "Privacy Policy"
(September 27, 2007) issued by the Agency's Chief Information
Officer, Chapter 2 References, p. 82.)
Information may be released through direct contact with PRPs, in
conjunction with issuance of general notice letters or special notice
letters, or by other means. For example, if a large number of PRPs
is identified at a site and a PRP steering committee has been
formed, the steering committee could be an effective channel for
releasing information to all PRPs. It may prove beneficial for EPA to
convene a meeting of PRPs at either the EPA regional office,
state office, or a location central to the PRP community. The goal
here is for EPA and state staff involved with the site to provide
information, answer questions, and receive input from the PRPs.
Convening a meeting of PRPs can result in the identification of
additional PRPs and facilitate formation of a PRP steering
committee.
Information release also may occur when the region invokes special
notice procedures under Section 122(e)(l) of CERCLA. When
invoking CERCLA Section 122 special notice procedures, EPA must
provide PRPs with waste-in lists, volumetric rankings, and a list of
PRPs' names and addresses "to the extent such information is
available." Documents may include manifests, logbooks, waste
tickets, receipts, and CERCLA Section 104(e) responses.
Chapter 2: PRP Search Planning Overview
70
-------
PRP Search Manual
September 2009
Handling Sensitive Records
Confidential Business Information (CBI)
CBI is commercial or financial information obtained from a person
that is privileged or confidential. Protection of CBI keeps others
from deriving a business advantage from information to which a
specific party has exclusive rights. CBI includes such items as
trade secrets and other proprietary information (e.g., the design of
an innovative treatment technology). CBI also includes tax returns
and other financial data to the extent that they have not already
been released by the company, for example, in its annual report.
When a company submits information that it thinks should be
treated as CBI, it should label the data as such and explain why the
information is considered confidential. EPA is required to advise
PRPs of these requirements when issuing information request
letters under CERCLA Section 104(e). EPA does not have to decide
whether the information is CBI unless someone requests its
release, but EPA must maintain the security of that information as if
it were CBI until EPA makes a determination to the contrary.
(See 40 C.F.R. 2.201, et seq., Chapter 2 References, p. 82, for
information on EPA procedures for making CBI determinations.)
Enforcement-Confidential/Enforcement-Sensitive
Enforcement-confidential and enforcement-sensitive records are
documents such as plans for enforcement actions, case-specific
enforcement strategies, and draft PRP search reports, that might
damage EPA's enforcement case if they were released. Therefore
regions should establish records management processes and
procedures that are consistent with applicable law to prevent the
unauthorized release of enforcement-confidential and enforcement-
sensitive documents. Even though a document has been marked
enforcement-confidential or enforcement-sensitive, it must be
reviewed for privilege in discovery or in response to a FOIA request
Chapter 2: PRP Search Planning Overview
71
-------
PRP Search Manual
September 2009
to ensure that the designation remains appropriate. (See Chapter
3 ("Analyze Responses") for further discussion of reviewing
documents for discovery.)
Information Requested Pursuant to FOIA
The Freedom of Information Act (FOIA) imposes two basic
requirements:
• a duty to publish or otherwise make publicly available
certain classes of agency records, 5 U.S.C. § 552(a); and
• a duty to make all other agency records publicly available
upon written request, unless specifically exempt by statute,
5 U.S.C. § 552(b). (See Chapter 2 References, p. 82.)
Under FOIA, a record includes any information currently maintained
by the agency in any format. An "agency record" is a record that
was created by or is under the control of an agency. FOIA does not
require an agency to create a record in response to a request for
information, nor require an agency to provide future records. New
FOIA amendments passed in December 2007 expanded the FOIA
definition of record to include any information that would be an
agency record maintained for an agency by a government
contractor for the purposes of records management. Information
maintained by a government contractor may need to be searched in
response to a FOIA request.
A FOIA search requires review by manual or automated means of
agency records for the purpose of locating responsive records. The
agency needs to make "reasonable efforts" to search for records in
electronic form, except when the search would "significantly
interfere" with the operation of the agency's computer systems.
The search need only be reasonable; it need not uncover every
responsive document in existence, but an agency employee must
not avoid searching for records known to exist.
Chapter 2: PRP Search Planning Overview
72
-------
PRP Search Manual
September 2009
The initial response should inform the requester of the agency's
decision to release or deny records, when it will release records, of
the anticipated cost to the requesting party, and that the requester
may appeal the agency's decision. The initial response is due 20
working days after receipt of the request. The agency may obtain a
10-day extension by informing the requester in writing of "unusual
circumstances" that will cause delay, such as the need to search
separate office and field locations, search voluminous records, or
consult another agency. Failure of the agency to respond within
deadlines may constitute an exhaustion of administrative remedies,
allowing the requester to go to court immediately. The new FOIA
amendments also have a provision which goes into effect on
December 31, 2008 that prohibits an agency from collecting fees if
the agency does not respond to a request within 20 days, except
where "unusual circumstances" or "exceptional circumstances" apply
to the processing of the request (existing language in FOIA).
Title 5 U.S.C. § 552(b) defines nine categories of records that are
exempt from release under FOIA.
Exemption 1 - National security
This exemption protects from disclosure national security
information concerning national defense or foreign policy that has
been properly classified in accordance with procedural
requirements of an executive order. EPA received classification
authority in 2002.
Exemption 2 - Internal rules and practices of an agency
This exemption applies to two kinds of records: (1) records the
disclosure of which may lead to the subversion of an agency rule or
policy, and (2) technically responsive yet purely inconsequential
records that contain little information of value in comparison to the
burden of having to provide it to the requester.
Chapter 2: PRP Search Planning Overview
73
-------
PRP Search Manual
September 2009
Exemption 3 - Records specifically exempted by statute
Congress often exempts specific kinds of records through an
"Exemption 3 statute" instead of a FOIA amendment. Laws that
exempt specific records include the Federal Rules of Criminal
Procedure (grand jury information), the Patent Act (unfiled patent
application materials), Procurement Integrity Act (site selection
information), and certain statutes dealing with the location of
endangered species. Critical infrastructure statutes many contain
FOIA exemption provisions.
Exemption 4 - CBI/Trade secrets
Exemption 4 protects trade secrets and commercial or financial
information that is obtained from a person that is privileged or
confidential. The release of such information would either cause
substantial competitive harm to the submitter of the information or
impair the government's ability to obtain such information in the
future. Information that is voluntarily submitted to the agency has
only to meet the lower standard of not being otherwise publicly
available. Information must involve a formula or production
process to be granted trade secret status. Most business
information is not a trade secret under that definition.
Information that is claimed as CBI or a trade secret by a submitter
may initially be withheld from a FOIA requester pending a
confidentiality determination by the Office of General Counsel
(OGC) or ORC. OGC is responsible for making the final CBI
determinations for all headquarters CBI requests and for only the
regional CBI requests involving FIFRA and TSCA. All other CBI
determinations are made by the applicable ORC.
When Exemption 4 is used to withhold information, the office sends
an initial denial letter to the FOIA requester explaining that the
information has been claimed as CBI and that EPA is making a final
determination regarding whether the information is entitled to
confidential treatment. Program offices are also encouraged to
Chapter 2: PRP Search Planning Overview
74
-------
PRP Search Manual
September 2009
contact the FOIA requester directly (by phone or e-mail) to ask if
the requester is willing to narrow the scope of the request to
exclude the CBI. In addition, a letter should promptly be sent out
to the submitter business asking it to confirm its CBI claims for the
information and to substantiate any claim of confidentiality (request
for substantiation).
Exemption 5 - Privileged communications
A record must satisfy two criteria to qualify for this exemption.
First, the record must be inter- or intra-agency, meaning it cannot
have been shared outside the executive branch. Records or
information that originated outside the executive branch may
nonetheless be considered intra-agency if the source is a
"consultant." A "consultant" is one who assisted the agency's
decision-making process by advising the agency on a matter in
which the consultant has no stake in the outcome and is not
otherwise advancing an interest or agenda that may benefit it over
other parties. Settlement records often must be released because
they are not inter- or intra-agency records. Second, the record
must be protected by a civil discovery privilege. Common
privileges include:
Deliberative process privilege
The record must be pre-decisional and deliberative. The purpose of
the privilege is to promote frank and honest discussion of options
prior to a decision and to avoid public confusion about the rationale
behind an agency decision. Indicators of the privilege include the
management level of the author, the point in the decision-making
process when the record was created, and how the record was
used. The privilege does not lapse after a decision is made, and
generally does not cover facts.
Chapter 2: PRP Search Planning Overview
75
-------
PRP Search Manual
September 2009
Attorney-client privilege
The record must have been drafted by or at the direction of an
attorney and contain advice regarding a client's legal issue and
must have been generated and maintained in confidence. The
purpose of the privilege is to facilitate effective representation by
promoting frank and open discussion between attorney and client.
The agency - not an individual employee or program office - is the
client. Privilege may protect opinions and facts. Privilege does not
attach unless the attorney is actually employed or acting in a legal
capacity. Privilege can protect communications with any EPA
employee, not just members of management.
Attorney work product privilege
The record must have been drafted by or at the direction of an
attorney in anticipation of litigation, and generated and maintained
in confidence. The purpose of the privilege is to protect the mental
impressions and work product generated by an attorney while
representing a client in litigation. Litigation need not have
commenced; the work product only needs to identify specific claims
that may reasonably lead to litigation. A record that was generated
as a normal part of an agency's functions that later may be relevant
to litigation is not covered. The privilege may also apply to factual
materials.
Exemption 6 - Personal privacy
This exemption protects personal information whose disclosure
would constitute a "clearly unwarranted" invasion of personal
privacy. The purpose of FOIA is to allow public inspection of
information that is relevant to the workings of government, not
necessarily every piece of information the government possesses.
This exemption requires a constant balancing of the public interest
in the requested information and the individual's right to privacy.
Chapter 2: PRP Search Planning Overview
76
-------
PRP Search Manual
September 2009
Exemption 7 - Law enforcement
This exemption applies to documents that are compiled for civil or
criminal law enforcement purposes. The exemption applies to
documents the disclosure of which:
• could reasonably be expected to interfere with law
enforcement proceedings (open investigations only;
documents relating to closed investigations must be
released);
• would deprive a person of his right to a fair trial;
• could reasonably be expected to constitute an "unwarranted"
invasion of personal privacy (lower threshold than
Exemption 6);
• could reasonably be expected to disclose a confidential
source;
• would disclose law enforcement techniques and procedures
and could reasonably be expected to risk circumvention of
the law; or
• could reasonably be expected to endanger the life or
physical safety of an individual.
Exemption 8 - Banking information
This exemption applies to records used by agencies responsible for
the regulation or supervision of financial institutions.
Exemption 9 - Well data
This exemption applies to geological and geophysical information
and data, including maps, concerning wells.
Regional FOIA officers should be consulted on requirements for
responding to FOIA requests. OGC or ORC should be consulted
whenever a question arises about releasing or withholding records.
Chapter 2: PRP Search Planning Overview
77
-------
PRP Search Manual
September 2009
EPA employees risk criminal liability by releasing protected
information such as CBI materials or Privacy Act (see Chapter 2
References, p. 82) information.
On January 21, 2009, President Obama signed the "Presidential memorandum for
the Heads of Executive Departments and Agencies on the Freedom of Information
Act," which established a new policy for Executive Branch departments and agencies
concerning disclosure and transparency. The president directed all agencies to
administer FOIA with a clear presumption in favor of disclosure, to resolve doubts in
favor of openness, and not to withhold information based on "speculative or abstract
fears." In addition, he called on agencies to ensure that requests are responded to in
"a spirit of cooperation," that disclosures are timely, and that modern technology is
used to make information available to the public even before a request is made. The
memorandum was effective immediately, superseding former Attorney General
Ashcroft's memorandum on FOIA of October 12, 2001. Accordingly, agency
personnel should begin to apply the presumption of disclosure to all decisions
involving FOIA immediately.
The president directed the attorney general to issue new guidelines governing FOIA
to implement these objectives. Once the new guidelines are issued, DOJ's Office of
Information and Privacy (OPI) will conduct training and provide additional advice and
guidance on their implementation. Consult your regional FOIA officer for information
on issuance of the guidelines and availability of OPI's training and guidance.
2.4
Document Filing
and Retention
Issues
During the planning process, the search manager should establish a
file structure for the search, considering factors such as regional file
structure, anticipated volume of information, nature of PRP
interaction with EPA on the PRP search, anticipated information
exchange, FOIA response requirements, and evidentiary concerns;
ascertain whether the accumulated data are likely to be voluminous
enough that an electronic system for managing them will be
needed; and develop or obtain such a system. The PRP search
manager should utilize the expertise of the records manager in
each region. This person can be valuable in organizing and
managing records. A document control system for identifying and
tracking documents should also be established.
Chapter 2: PRP Search Planning Overview
78
-------
PRP Search Manual
September 2009
2.4.2
CERCLIS/
WasteLAN
The Comprehensive Environmental Response, Compensation, and
Liability Information System/Waste Local Area Network
(CERCLIS/WasteLAN), is an information management system made
available to EPA's regional offices and headquarters. It
incorporates numerous site-related subjects.
CERCLIS/WasteLAN includes a number of features intended to
facilitate PRP searches and the sharing of PRP financial and other
data across regions. These features are particularly important
when interstate or multi-state PRPs are concerned. Data entered
into CERCLIS/WasteLAN about parties that are associated with a
general notice letter, special notice letter, enforcement instrument,
or filed litigation referral are available to all regions the following
Monday. This data-sharing capability, combined with features that
make it easy to find out if a particular individual or firm is already
in the database, is intended to reduce the need to repeat
preliminary work that has already been done by others.
In addition to basic information (name, address, phone number) on
all parties associated with a site, CERCLIS/WasteLAN also stores
information describing the involvement of the identified PRPs at the
site, a history of any enforcement actions taken, what response
actions the PRPs have undertaken or committed themselves to
perform, and information about correspondence issued by the
Superfund program. CERCLIS/WasteLAN is available at most work
stations in regional offices, and training is available. Check with
your regional information management coordinator for additional
information. A summary of CERCLIS/ WasteLAN's capacity and the
type of PRP-related data gathered, along with examples of screens
used when entering data, can be found in Appendix D.
Chapter 2: PRP Search Planning Overview
79
-------
PRP Search Manual
September 2009
Information Management
Factual information gathered during a PRP search can be grouped
by its source and within each source by PRP. Information request
letters and responses should be organized and maintained for use
by Agency personnel. Government documents, title search
documents, PRP documents, interview summaries, and information
request letters and responses may be grouped separately. Index
numbers should be assigned to all documents to ease referencing
of the evidence summary sheets and the PRP search report.
Section 3.2 of this manual discusses some factors involved in
database creation and the storage and special handling of
documents.
Chapter 2: PRP Search Planning Overview
80
-------
PRP Search Manual
September 2009
Chapter 2 References
Entry and Continued Access
Under CERCLA (June 5, 1987)
Applicable or Relevant and 2.0
Appropriate Requirements
(ARARs)
Superfund Program 2.0
Implementation Manual (SPIM)
Fiscal Year 2009/2010
Performance Work Statement for 2.1.1
Enforcement Support Services
Environmental Programs 2.1.1
Assistance Act (June 12, 1984)
Title V of the Older Americans Act 2.1.1
(1965)
Revised Final Guidance on 2.1.2
Disseminating EPA's SBREFA
Information Sheet to Businesses
at the Time of Enforcement
Activity (August 31, 1999)
Small Business Information Sheet 2.1.2
(October 2007)
Confidentiality of Business 2.1.2
Information
Transmittal of Sample Documents 2.1.2
for More Effective Communication
in CERCLA Section 104(e)(2)
Information Requests (June 30,
1995)
http://www.epa.gov/compliance/resour
ces/policies/cleanup/superfund/cont-
access-mem.pdf
http://www.epa.gov/superfund/poliy/re
medy/sfremedy/arars.htm
http://www.epa.gov/superfund/action/
process/spim09.htm
Appendix A
http://www.epa.gov/epahrist/see/
brochure/law.htm
42 U.S.C. §3056etseq.
http://www.doleta.gov/seniors/
other_docs/owp-106-501.pdf
http://www.epa.gov/compliance/
resources/policies/civil/sbrefa
EPA Publication 300-F-07-003
http://www.epa.gov/compliance/
resources/publications/incentives/
smallbusiness/smallbusresources.pdf
40 C.F.R. Part 2, Subpart B
http://ecfr.gpoaccess.gov
http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
sampledoc-cercla-mem.pdf
Chapter 2: PRP Search Planning Overview
81
-------
PRP Search Manual
September 2009
Chapter 2 References
Name
Section
Location
Documentation of Reason(s) for 2.1.2
Not Issuing CERCLA §106 UAOs to
All Identified PRPs
(August 2, 1996)
Checklist of PRP Search Tasks 2.2
Checklist for Removal/Pre- 2.2.1
remedial Sites
Performance Work Statement for 2.2.1
Enforcement Support Services
Revised Policy on Discretionary 2.3
Information Release Under
CERCLA (March 31, 1993)
Privacy Policy (September 27, 2.3
2007)
Confidentiality of Business 2.3
Information
Freedom of Information Act 2.3
(Reference Guide)
Privacy Act 2.3
Quick Reference Guide for Using 2.4.2
CERCLIS/WasteLAN
http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
reason-cerl06-rpt.pdf
Appendix B
Appendix C
Appendix A
http://www.epa.gov/compliance/resour
ces/policies/cleanup/superfund/rev-
discre-info-rel.pdf
http://www.epa.gov/irmpoli8/ciopolicy/
2151.0.pdf
40 C.F.R. Part 2, Subpart B
http://ecfr.gpoaccess.gov
5 U.S.C. § 552etseq.
http://www.epa.gov/foia/guide.html
5 U.S.C. § 552etseq.
http://www4.law.cornell.edU/5/552a.ht
ml
Appendix D
Chapter 2: PRP Search Planning Overview
82
-------
PRP Search Manual
September 2009
3.0 Baseline PRP Search 83
3.1 Review Files and Collect Records 83
3.1.1 Federal Files 84
3.1.2 State Files 86
3.1.3 Local Government Files 87
3.1.4 Other Records 89
3.1.5 Special Planning Considerations 90
3.2 Organize Records and Track Correspondence 95
3.2.1 Organization 95
3.2.2 Correspondence Tracking 98
3.3 Issue Information Requests 99
3.3.1 Identify Recipients/Draft Information Requests 101
3.3.2 Mail and Track Information Requests 117
3.3.3 Analyze Responses 119
3.3.4 Develop Response Summaries 121
3.3.5 Information Request Followup 121
3.4 Conduct Interviews 123
3.4.1 Interview Considerations 123
3.4.2 Who Performs the Interview 127
3.4.3 Identifying Interviewees 129
3.4.4 Conducting Interviews 132
3.4.5 Interview Documentation 136
3.5 Perform Title Search 139
3.5.1 Determine Ownership Interests 140
3.5.2 Develop a Title "Tree" or Chronology 146
3.5.3 Additional Uses for Title Documents 148
3.5.4 Updating Title Information 148
3.6 Business Status and Financial Research 149
3.6.1 Introduction 149
3.6.2 Forms of Business Organization 150
3.6.3 Person 150
3.6.4 Business Organization 151
3.6.5 Sole Proprietorships 151
3.6.6 Partnerships: General Partnerships and Limited Partnerships 152
3.6.6.A Elements Specific to a General Partnership 153
3.6.6.B Elements Specific to a Limited Partnership 154
3.6.7 Corporations 155
3.6.7.A Elements Unique to Corporations 156
3.6.7.B Classification of Corporations 157
Chapters: Baseline PRP Search
-------
PRP Search Manual
September 2009
3.6.7.C Evolution of Corporations 159
3.6.7.D Sale of Stock in a Corporation 161
3.6.8 Indemnification Agreements 162
3.6.9 Other Entities 163
3.6.10 Additional Liability Theories 165
3.6.10.A Direct Liability of a Person as an Operator or as a Person Who Arranged for
Disposal or Treatment of Hazardous Substances 166
3.6.10.B Corporate Officers, Directors, Shareholders, or Employees 166
3.6.10.C Liability of Parent and Affiliated Corporations 167
3.6.10.D Elements of Direct Liability 168
3.6.10.E Piercing the Corporate Veil 170
3.6.10.F Successor Liability 173
3.6.11 Financial Research 177
3.6.11.A Corporation and Partnership Filings Required by States 177
3.6.11.B Court Filings 178
3.6.11.C Federal Sources 178
3.6.11.D Corporate Directories Summary 178
3.6.11.E Credit Reporting and On-Line Services 179
3.7 Develop Site 179
3.8 Compile Waste-In Information 181
3.8.1 Transactional Databases 182
3.8.2 Waste-In Lists and Volumetric Rankings 184
3.9 Classify PRPs 190
3.9.1 Identify PRPs 190
3.9.2 Define PRP Category 192
3.10 Prepare Baseline PRP Search Report 193
3.10.1 Report Format and Content 194
3.10.1.A Deliverable 1: Site Chronology and Property History 195
3.10.1.B Deliverable 2: PRP Synopsis 195
3.10.2 Report Review and Distribution 196
References 200
Chapters: Baseline PRP Search
-------
PRP Search Manual
September 2009
3.0 Baseline PRP Search
This initial phase of the PRP search is focused on collecting evidence
that establishes the liability of owner/operator PRPs and identifies
generator/transporter PRPs. Although the exact nature, number,
and sequence of search tasks will vary from site to site, this
chapter describes 10 tasks that are often completed as part of the
baseline PRP search. Keep in mind that the specific activities
undertaken at a given site will depend on what is needed to achieve
the Agency's PRP search goals for that site. The 10 baseline PRP
search tasks are:
3.1
Review Files
and Collect
Records
1. Reviewing files and collecting records;
2. Organizing records and tracking correspondence;
3. Issuing information request letters;
4. Conducting interviews;
5. Performing title searches;
6. Conducting business status and financial research;
7. Developing a site summary;
8. Compiling waste-in information;
9. Classifying PRPs; and
10. Preparing a baseline PRP search report.
(See Appendix B for a checklist of PRP search tasks.)
The objective of this task is to locate and obtain copies of all
records pertinent to the site and relevant to the PRP search.
Relevant records may include correspondence, photographs, sound
or magnetic recordings, computer tapes, drawings, hazardous
waste manifests, technical data and reports, permits, notices of
violations (NOVs), complaints, investigations, site owner records,
Chapters: Baseline PRP Search
83
-------
PRP Search Manual
September 2009
fire department chemical reports, litigation files, bankruptcy files,
local newspaper accounts and records, and information available on
line.
These records are potential sources of information on site history,
identity of PRPs, and additional contacts. Before an effective file
review can take place, it is critical to become familiar with the site
and all background information. This task generally starts with a
review of EPA files to determine the volume, content, and nature of
existing information. As a starting point, the PRP search manager
should coordinate with the region's record center to determine what
information is available within the region. Because state and local
offices can be a valuable resource in the search process, their
records should be reviewed concurrently with EPA's files or soon
thereafter. A thorough search for records in other federal agencies,
local offices, and other sources should be performed. This task can
be conducted at the same time as the title search and interviews.
In addition to the sources discussed below, refer to "Potentially
Responsible Party Internet Information Sources" (Appendix ), a
detailed compendium of links to business, financial, legal, real
property, and technical information sources; EPA and other
government agency web sites; investigative tools; directories;
libraries; maps; and aerial photographs.
3.1.1 Federal records may be found in EPA's regional record centers or in
Federal Files files in tne CERCLA, RCRA, Emergency Planning and Community
Right to Know Act (EPCRA), air, water, regional counsel, and
criminal investigations offices. Documents maintained in these
offices may include permits, inspection reports, correspondence,
records of violations and enforcement actions, and criminal records.
These documents often reference other federal agencies that are or
were involved with the site or a PRP. Intra-agency communications
Chapters: Baseline PRP Search
84
-------
PRP Search Manual
September 2009
and databases, such as the CERCLIS/WasteLAN database and the
On-Line Targeting Information System (OTIS), can also yield
information on a site or PRP within the region. Federal sources of
information can include the following:
POTENTIAL SOURCES:
Department of the Interior
Nuclear Regulatory
Commission
U.S. Geological Survey
Environmental Photographic
Interpretation Center
National Oceanic and
Atmospheric Administration
U.S. Army Corps of Engineers
Occupational Safety and
Health Administration
Securities and Exchange
Commission
Coast Guard
Food and Drug Administration
POTENTIAL INFORMATION
OBTAINED:
maps and aerial photographs
licenses, permits, studies
studies and ground water data
aerial photographs
meteorological data
studies, permits, records at
federally owned sites
inspection reports, health and
safety incident information
current and archival PRP
documents, including financial
statements, corporate business
publications, quarterly and
annual reports
incident response reports
inspection reports (The FDA had
records of facility inspections
from the 1970s at one Region 2
site.)
Chapters: Baseline PRP Search
85
-------
PRP Search Manual
September 2009
POTENTIAL SOURCES:
Federal Emergency
Management Agency
Federal Records Center
U.S. Forest Service
Bureau of Land Management
POTENTIAL INFORMATION
OBTAINED:
relocation information
retired federal record files
maps, title searches, studies
mining information
3.1.2
State Files
State offices may maintain valuable technical information about
sites. A site may be listed on a state registry of contaminated
sites, or state-regulated activity or resource use, (e.g., well
drilling), may have occurred there, generating applications,
permits, or notices to or from owners or operators. Such
information may be useful both in identifying PRPs and planning
and implementing site response actions. Of particular interest are
documents located in the state's Superfund and RCRA program
offices as well as records maintained by the secretary of state,
attorney general, and tax officials. It is a good idea to familiarize
yourself with the organizational history of state offices in order to
determine the possible location of all needed records. When offices
are reorganized, they sometimes retain files that address subjects
for which the office is no longer responsible.
The region may want to consider including language in State
Multi-Site Cooperative Agreements providing that the state will
compile information that it has on file for each site (e.g., spills,
permits issued, compliance history, orders, citizen complaints).
Chapters: Baseline PRP Search
86
-------
PRP Search Manual
September 2009
This should result in preservation of PRP-related information and
more timely identification of PRPs. If states provide such
information to EPA, the PRP search manager should coordinate in
advance with the state and include this activity in the PRP search
plan. Types of information collected from state files can include the
following:
POTENTIAL SOURCES:
POTENTIAL INFORMATION
OBTAINED:
Environmental Agency
licenses, permits, studies,
inspection reports, sample data,
enforcement actions
Water and Soil Conservation
studies
Attorney General
correspondence, lawsuits,
orders
Secretary of State
corporation names and
addresses, registered agents,
articles of dissolution, annual
reports, limited partnership
filings
3.1.3
Local
Government Files
Cities and counties regulate and keep records of activities and
resource use within their jurisdiction. Local government offices
may contain records of building, ground water use, and excavation
permits and licenses; applications for repeal or amendment of
county zoning ordinances; tax assessments; local disposal
guidelines; inspection and violation notices and reports; and
memoranda and correspondence between site owners and
operators and local officials. In some cases, local officials may
Chapters: Baseline PRP Search
87
-------
PRP Search Manual
September 2009
have prepared site history memoranda and lists of hazardous
materials. Like its counterpart at the state level, such information
may be useful both in identifying PRPs and planning and
implementing site response actions. Relevant local government
records can be found in:
POTENTIAL SOURCES:
Office of the City or County
Attorney
Health Department
Department of Public Works
Wastewater Management or
Pollution Department
Planning, Land Use, and
Engineering Departments
Zoning Boards
Police and Fire Departments
City or Township
Clerk/County
Clerk/Recorder's Office/Tax
Assessor's Office
Historical Society
POTENTIAL INFORMATION
OBTAINED:
correspondence, permits,
licenses, enforcement actions
accident reports, lists of
hazardous materials
operation maps, applications,
inspection and violation reports
permits and licenses,
correspondence, control
department's inspection and
violation reports
plat maps, aerial photographs,
operations maps,
correspondence, applications
applications, plat maps and
aerial photographs
accident reports, lists of
hazardous materials
deeds, leases, grants,
addresses, mortgages and liens,
easements, agreements, legal
property descriptions
past business at the site
Chapters: Baseline PRP Search
88
-------
PRP Search Manual
September 2009
3.1.4
Other Records
Other good sources of information can include:
The PRPs
• PRP management;
• employees;
• suppliers;
• independent contractors; and
• customers.
Sources of information commonly in PRPs' possession are:
• information on other PRPs (including those not previously
identified);
• hazardous materials listings;
• shipment manifests;
• transporter records;
• Material Safety Data Sheets (MSDSs) for substances used by
PRPs;
• correspondence; and
• corporate records such as board meeting minutes.
Public Libraries, University Libraries, and Historical Societies
• local business collections;
• local newspapers, community newsletters, and articles or
newsletters published by businesses associated with the
site;
• documents and other paper collections donated by well-
known individuals in the community; and
• specialized collections (e.g., mining, collections of aerial
photographs).
Chapters: Baseline PRP Search
89
-------
PRP Search Manual
September 2009
Residents Living Adjacent to the Superfund Site
• identity of PRPs (particularly leads early in the PRP search);
• location of waste disposal areas; and
• information about other activities at the site relevant to the
PRP search.
Other Sources of Information
• on-line sources of free information;
• subscription on-line information sources (e.g., Autotrack XP,
Dataquick, LexisNexis, Westlaw, Dun & Bradstreet);
• Sanborn Fire Insurance maps;
• Polk/Cross directories; and
• commercial aerial photograph companies.
Early contact with the community may provide important site and
PRP information, establish an EPA and community dialogue, and
encourage productive community involvement throughout the life of
the project.
3.1.5
Special Planning
Considerations
Performing file reviews and collecting records may involve some
special planning considerations such as:
Document Production and Retention
It is important to determine the best method for reproducing
records in consultation with the records management coordinator in
each region. Factors relevant to this decision include cost,
accessibility of the facility where the records will be maintained,
and current regional records guidance. If any records are to be
placed in a public docket, the technology available to the public for
accessing them should be taken into account.
Chapters: Baseline PRP Search
90
-------
PRP Search Manual
September 2009
In many instances, the integrity of records and chain-of-custody
issues need to be considered to ensure that the evidentiary value of
documents is not compromised. Also consider Bates stamping1
documents as this will help verify that no document has been lost,
and allows for accurate re-filing of documents. The regional
records management coordinator should be consulted in any matter
that affects records management. (See also subsection 3.2.1 of
this manual.)
Volume of Records
If the estimated volume of records to be reviewed and copied is
large, a contractor may be better suited to the task than EPA.
Consult the regional records management coordinator to determine
the type and amount of work required, and check with project and
contracting officers to make sure that an appropriate contract
vehicle is available and that the type of work is within its scope. If
use of a contractor2 is a feasible option, EPA may want to initially
accompany the contractor in reviewing the records to determine
which documents are relevant and need to be copied.
Depending on the volume of records or the release policy of the
keeper of the documents, it may be more efficient to:
Bates stamping, which is done by hand with a specially-designed mechanical
stamp, is often used in the legal industry to number or date/time mark images as they are
processed. In recent years, more high-tech marking technologies have been developed that
can create images with copyrights by putting a company name, logo, or legal copyright mark
on documents as they are scanned or filmed. These imaging technologies can also
automatically add sequential numbering to the images.
2
When contractor support is being contemplated for any PRP search task, make
certain that all conflict of interest (COI) checks have been completed before the task begins.
Coordinate with the regional project officer (PO) or contracting officer (CO) to confirm that
all necessary contract documentation is in place. Only the CO can make the final
determination about the possible existence of a COI.
Chapters: Baseline PRP Search
91
-------
PRP Search Manual
September 2009
• copy the records at the agency with the help of a rental
copier or temporary help;
• send the records to a local vendor for copying under the
supervision of the contractor staff;
• microfilm3 or otherwise image the documents and then
produce hard copies from the images;
• procure or rent portable, hand-held scanners as an
alternative to removing, handling, and copying hard copies;
or
• scan documents onto a CD-ROM and provide a database on
line (this method was used successfully for site records in
Region 4 during an allocation pilot).
Privileged Documents
The government's documents may be subject to a claim of
privilege, the most common privileges being attorney work product,
attorney-client, and deliberative process. (See Section 2.3 of this
manual for a description of these privileges.) These privileges may
be asserted by the government in litigation or in settlement
negotiations in order to withhold particular documents. If a
document is subject to one of these privileges, the assertion of the
privilege is discretionary. Deliberate or inadvertent release of a
privileged document, however, may waive the privilege. The
determination to produce or withhold a privileged document is
made by DCO and EPA attorneys. When making a claim of
Most regional offices have microfilm readers, but use them mainly to view older
records. Other imaging technologies (e.g., PDF files, CD-ROM, CD scans) have largely
supplanted microfilm, and different regions may rely on different technologies. Check with
the regional records manager for preferred methods and procedures.
Chapters: Baseline PRP Search
92
-------
PRP Search Manual
September 2009
privilege, the government must prepare a privilege log (a list of all
the documents being withheld and the particular privilege(s) that
apply), which is sent to the party requesting the document(s).
Assertion of deliberative process privilege has special requirements,
including an affidavit from the appropriate AA or RA justifying the
deliberative process privilege. The designation of privilege may be
litigated by the opposing party.
Not all documents subject to a potential claim of privilege may be
so marked. Therefore, if there is a possibility that the documents
being reviewed are privileged, the reviewer should contact the
assigned attorney, who can review the documents and make a
determination that there is a privilege claim. Some documents may
be marked "Enforcement Sensitive" or "Confidential Settlement
Document." These designations do not necessarily support a claim
of privilege and must be reviewed by the assigned attorney to
determine if there is a claim of privilege or if the documents are
releasable.
Keep in mind that privilege designations on a document are not the
same as FOIA exemptions. While documents subject to a claim of
privilege may also be within one of the FOIA exemptions, these are
two different determinations as documents subject to a FOIA
exemption must be reviewed in light of the FOIA exemptions at 40
C.F.R. § 2.105. Consult the regional records management
coordinator regarding special procedures for managing privileged,
enforcement-sensitive, confidential, and FOIA-exempt documents.
Confidential Business Information (CBI)
Files obtained from PRPs may be subject to a CBI claim. Although
government privilege is discretionary, CBI is a matter of law.
Consult with your PRP search manager and case attorney if CBI is
Chapters: Baseline PRP Search
93
-------
PRP Search Manual
September 2009
an issue. Generally, enforcement contracts include a CBI clause,
and contractor personnel sign CBI agreements at the time the
contract is awarded. The PRP search manager, PO, and CO,
however, can verify that fact and provide procedures for CBI
claims. State records and records from other federal agencies may
be subject to such claims as well. If a contractor is performing the
file review and records collection task for EPA, and the PRP makes a
CBI claim, the contractor should immediately inform the PRP search
manager. The PRP search manager should then consult with the
EPA PO and CO responsible for the contract under which the file
review is being conducted. The Agency will then determine
whether it is appropriate for the contractor to review the records
and whether the records in question are CBI. Consult the regional
records management coordinator regarding special procedures for
managing documents subject to a CBI claim.
Health and Safety
The health and safety of the personnel conducting the file review
and record search are an important concern. Documents or records
encountered during this task may be contaminated with hazardous
substances. While not common, this problem does arise on
occasion. If document contamination is suspected (e.g., because
records were found in a contaminated warehouse, documents are
stained), the PRP search manager should be notified immediately
and the Agency should attempt to determine the probable degree
of contamination and its associated health effects, whether the
documents should be tested, and possible methods to obtain clean
copies. If a contractor is performing the task, the contractor's
health and safety plan (in accordance with procedures outlined in
the PRP search work plan) must be current before the contractor
begins work with contaminated records.
Chapters: Baseline PRP Search
94
-------
PRP Search Manual
September 2009
Access Refusal
If EPA or EPA's contractor is refused access to records or other
sources of pertinent information, EPA or the contractor should
document the circumstances of refusal and identify when, where,
and by whom access was denied. This information should be
provided to the EPA case attorney. Often, parties refusing access
have little or no knowledge of EPA's information gathering authority
under CERCLA, and access can often be obtained subsequently
through informal dialogue between the case attorney and the
property owner or the owner's counsel, if one has been retained. If
a contractor is conducting a records search, the Agency should
provide the contractor with a letter of introduction that explains
access rights. This should be a standard operating procedure when
a contractor is responsible for records collection and file review.
3.2
Organize
Records and
Track
Correspondence
A good system for organizing, storing, and tracking site files and
tracking correspondence is imperative for case development,
litigation, and cost recovery efforts. Check with your region's
records manager and other case teams to assess what file
structures are already in place and effective. Effective tracking of
the status of information request letters and other correspondence
greatly enhances the Agency's ability to share information with
PRPs and other parties, and saves time and resources.
3.2.1
Organization
Records compilation and tracking may involve a fairly simple file
organization, but some sites, especially large sites with many PRPs
and a large volume of records spanning a number of years, may
require a more complex file organization. To choose the best
method of organizing documents, the following factors should be
considered:
• types of information needed from the documents;
• volume of documents;
Chapters: Baseline PRP Search
95
-------
PRP Search Manual
September 2009
• regional file structure;
• capabilities of the organizer;
• ease of document retrieval;
• long-term tracking needs and capabilities;
• potential document security issues (especially since
databases are often shared);
• unique site-specific needs;
• nature and number of potential users; and
• time required to organize documents.
Manual Arrangement of Documents
If a simple organization will meet the records management
objectives for a site, a manual arrangement may be utilized.
Documents may be organized by chronological order, subject
matter, PRP, or author. The documents are then assigned an index
number (e.g., using a Bates stamp, microfilm frame number), and
an index for the entire document set is developed. To be user-
friendly, multiple indexes should be developed based on index
number, document title, author, and date of document, or other
characteristics as decided by the case team.
Use of a Database
If documents need to be organized in a more complex fashion (e.g.,
to permit extensive cross-referencing or keyword indexing), it may
be useful to develop an electronic database. All EPA regions now
have access to the Superfund Document Management System
(SDMS), and some regions use it to store and retrieve PRP search-
related documents such as notice letters, demand letters,
responses, waste tickets, and invoices. File transfer protocol (FTP)
set-ups have been used in some regions for warehousing site-
Chapter 3: Baseline PRP Search
96
-------
PRP Search Manual
September 2009
related information, and may have PRP search applications.
Regions differ in what database systems they use and how they use
them, however, and you should consult your regional records
management coordinator and PRP Search Enhancement Team
contact (see Appendix E) for information about database
development practices, procedures, and protocols in your region.
Following are basic guidelines for organizing a database. Some
regions have developed more technically advanced databases than
the guidelines contemplate, but they serve as a useful starting
point.
• Group documents of similar content, such as scientific
research, environmental studies, or legal documents.
• Assign an index number to each of the documents.
• Decide what information to use in the database index.
Examples of information from each document might include
the index number, document title, date, author, and
addressee.
• If required, develop a more complex database using a coded
designation for particular subject matter, a database index
to refer to a particular subject, and/or keyword indexing.
• Program the database to access information in various ways
(e.g., chronological order, author, keyword, subject matter).
When establishing a database for site documents, keep in mind that
new documents will be added periodically. The database index may
require significant revisions if a large number of new documents is
discovered after the keywords are selected or the index is created.
When planning a PRP search for which complex file organization
may be necessary, time and resource
Chapters: Baseline PRP Search
97
-------
PRP Search Manual
September 2009
requirements for database maintenance and modifications must be
considered in order to assure the continued usefulness of the
database.
3.2.2
Correspondence
Tracking
Tracking correspondence with PRPs and other parties often requires
use of a database due to the large number of parties involved. If a
database is necessary, the following factors should be considered
prior to database development.
Information to be tracked:
• identity of the recipients;
• delivery status (e.g., accepted, refused receipt,
address unknown); and
• response status (e.g., no response, partial response,
complete response).
Capacity of the database system:
• procedures for entry and retrieval of information
(keeping the database user-friendly);
• types of summaries and reports needed;
• number of waste types that may need to be tracked;
• nature and number of database users;
• resource requirements for database development and
maintenance;
• contractor support requirements;
Chapters: Baseline PRP Search
98
-------
PRP Search Manual
September 2009
• period of performance of the contract;
• expected period of database use;
• compatibility of contractor hardware/software with
the Agency's hardware/software; and
• ease with which the database system can be taken
over by another contractor or agency.
Care should be taken not to clutter printouts with any information
not required, or with unprofessional comments. A voluminous
printout of information will likely negate the desired benefits of
tracking, which are to promote information sharing and increase
time and cost savings. As with any database system development,
a quality assurance program should be incorporated for data entry
and edits.
Maintain a Backup
3.3
Issue
Information
Requests
A manual system for correspondence tracking should also be in
place in the event the primary information retrieval system fails.
Responses to information requests should be organized
alphabetically by party or in a similar system. Index numbers
should be assigned to all documents and an index of the
correspondence should be created.
Sections 104(e) of CERCLA and 3007(a) of RCRA authorize the
Agency to issue information request letters.
Section 104(e) authorizes the Agency to issue information request
letters to any person (including business entities and government
agencies) who may have information about a site, not just to
persons who may be PRPs. The authority to issue letters under
Chapters: Baseline PRP Search
99
-------
PRP Search Manual
September 2009
Section 104(e) is delegated to specific individuals within each
region. Issuing information request letters is a basic component of
nearly all PRP searches. Under Section 104(e)(2) of CERCLA,
"[a]ny officer, employee, or representative [of the President]...may
require any person who has or may have information relevant to
any of the following to furnish, upon reasonable notice, information
or documentation relating to such matter:
• The identification, nature, and quantity of materials which
have been or are generated, treated, stored, or disposed of
at a vessel or facility or transported to a vessel or facility.
• The nature or extent of a release or threatened release of a
hazardous substance or pollutant or contaminant at or from
a vessel or facility.
• Information relating to the ability of a person to pay for or
to perform a cleanup."
RCRA Section 3007(a) provides that "[f]or purposes of developing
or assisting in the development of any regulation or enforcing the
provisions of this chapter, any person who generates, stores,
treats, transports, disposes of, or otherwise handles or has handled
hazardous wastes shall, upon request . . . furnish information
relating to such wastes and permit such person at all reasonable
times to have access to, and to copy all records relating to such
wastes."
Section 3007(a) authority is in some ways narrower than Section
104(e) authority. It does not expressly authorize the Agency to
seek information about a person's ability to pay for or perform a
cleanup, for example, and it is limited to information (1) about
hazardous wastes (2) gathered from persons who have generated,
stored, treated, transported, disposed of, or otherwise handled
Chapters: Baseline PRP Search
100
-------
PRP Search Manual
September 2009
such wastes. On the other hand, information the Agency may seek
about hazardous wastes under Section 3007(a) is not expressly
restricted to their identity, nature, and quantity. Section 104(e)
and 3007(a) authorities may supplement each other usefully in
some circumstances.
Section 104(e) letters are used for information-gathering purposes
and do not designate an entity as a potentially responsible party. A
compilation of sample information request letters, questions, and
additional relevant resources can be found on OSRE's internet site.
(See Chapter 3 References, p. 200.) The letters and questions are
specifically tailored to the type of site (e.g., chemical plant, dry
cleaner), recipient (e.g., individual, small business, large
corporation), recipient's involvement with the site (e.g., owner,
operator, transporter), and nature of the information sought.
Recipients of information request letters may be requested to
produce records or provide information on site ownership, site
operation, their financial position, wastes sent to the site, possible
generators and transporters, and the existence of records. (See
subsection 3.3.1 of this manual for additional information on the
nature and content of information request letters.)
The Agency's statutory information-gathering authority is broad
enough to allow EPA to seek any information reasonably calculated
to lead to information about a release. Although EPA's authority is
broad under Section 104, the Agency is sensitive to the substantial
burden that may be imposed on parties who receive an information
request.
3.3.1
Identify
Recipients/Draft
Information
Requests
Records obtained through the review of files may contain a number
of potential sources of information and names of PRPs. Before
drafting the information request letter, the PRP search team
should:
Chapters: Baseline PRP Search
101
-------
PRP Search Manual
September 2009
• develop and maintain a list of potential recipients;
• decide who from the list should receive letters;
• verify the current addresses of recipients; and
• make decisions on the tone, content, and format of each
letter, depending on the individual recipient or category of
recipient.
Although site-specific needs will ultimately determine what to
include in information request letters, the following factors should
generally be considered when drafting them.
Access to On-Line Information Sources
On-line services are a rapidly growing source of PRP information.
Obtaining information through on-line research is, in some cases,
the fastest and most effective method of obtaining PRP information.
The difficulty with this type of research, however, is knowing what
is available and how to access it.
Most on-line sources are available nationally and can be accessed
through the internet, but some are not available in every EPA
region or state. If this is the case, public libraries, universities,
colleges, or schools can be contacted to determine their capabilities
and use requirements. These institutions frequently provide
services for minimal fees. In addition, contractors typically have
numerous on-line capabilities. (See "Potentially Responsible Party
Internet Information Sources (PRPIIS)" in Appendix F).
PRP search staff should start by contacting their regional LAN
administrator, information support staff, or EPA librarian to
determine what subscription on-line sources are currently available
in the region and if any use restrictions apply to them. EPA's
Chapters: Baseline PRP Search
102
-------
PRP Search Manual
September 2009
Superfund Enforcement Directory (SPED) is a nationwide on-line
directory of Superfund Enforcement personnel and resources. (See
Chapter 3 References, p. 200.)
Nature of Recipient
The nature of the recipient (e.g., individual, corporation,
municipality) significantly affects the content of the information
request. Where feasible, information requests should be tailored to
each PRP or information source. Tailoring the request can greatly
improve the quality of the response, reduce the need for follow-up
requests, and reduce the burden on the recipient of the request.
The types of information typically requested from each kind of PRP
(e.g., owner, operator, transporter, generator) are presented later
in this section.
Recipient's Understanding of CERCLA
The PRP search team should consider the degree to which an
information request recipient is likely to understand CERCLA. It is
not always feasible to ascertain a recipient's degree of
understanding of CERCLA, but the PRP search team can usually
make some assumptions. For instance, it can assume that "ABC
Corporation," which has been involved as a PRP at a number of
Superfund sites, has a good understanding of CERCLA. Thus, the
information request letter can use technical and legal terms that do
not have to be explained in detail. Similarly the team can generally
assume that a "Mrs. Joyce Smith" at a residential address likely has
little or no knowledge of CERCLA or legal terminology. In this
situation, the request should contain clear, non-legal language and
be as concise as possible. A sample initial information request
letter for individuals or small businesses is provided in "Transmittal
of Sample Documents for More Effective Communication in CERCLA
Section 104(e)(2) Information Requests" (June 30, 1995). (See
Chapter 3 References, p. 200.)
Chapters: Baseline PRP Search
103
-------
PRP Search Manual
September 2009
Confidentiality Considerations
If there is reason to believe that the recipient will be concerned
with the confidentiality of its response, the PRP search team should
insert confidentiality language into the information request letter
that is consistent with 40 C.F.R. Part 2, Subpart B (40 C.F.R. §§
2.201-2.311). From a practical standpoint, it makes sense to
include this language with each request as it serves two purposes.
First, it defines the boundaries of a confidentiality claim, reducing
the likelihood of a general assertion of confidentiality. Second, it
makes clear to the recipient that EPA may have to release
information provided in a response. Also, the presence of such
language will reassure the recipient that the response will be
handled in an appropriate manner. Similarly, if EPA plans to use
contractors to review and organize responses, inserting language in
the letter identifying the contractor and explaining its duties may
help reduce recipients' concerns.
Pursuant to EPA's CBI regulations, the PRP search team should
request that recipients segregate information being claimed as CBI
from non-CBI information. Segregation of this information can
improve future information sharing with other parties by allowing
for the quick release of information for which no claim of
confidentiality has been asserted.
Where possible, use a corporate address to send a Section 104(e)
letter, GNL, or SNL so the letter is releaseable under FOIA. If a
home address is used, the letter has to be redacted to omit the
home address.
Recipient's Willingness to Cooperate
Occasionally EPA has reason to believe that a recipient of an
information request may not be cooperative in responding to the
request or may take actions to avoid liability. This belief can be
Chapters: Baseline PRP Search
104
-------
PRP Search Manual
September 2009
based on past experience with the party or on correspondence
pertaining to previous permit violations, police reports, state
investigations or interviews, or other documents. In such cases,
the PRP search team should consider including language in the
information request letter that asserts EPA's authority and
describes the recipient's responsibilities. For instance, the False
Statements Act (see Chapter 3 References, p. 200) provides for
criminal penalties for any person who provides unsworn false
statements or conceals information from an agency or department
of the United States. This Act clearly applies to statements made
to civil investigators, any written responses to questions, and
signed statements. The letter might also note that a party would
be in violation of the Federal Debt Collection Procedures Act (see
Chapter 3 References, p. 200) if he transferred property or assets
to avoid a federal debt under CERCLA.
When seeking information from a corporation, Section 104(e)
letters should be sent by name and title to corporate officials (e.g.,
president, manager, CEO, registered agent), not to staff members,
in order to lay the groundwork for legal action against the
corporation in case of non-response. The Federal Register should
be reviewed annually to see if penalty amounts for non-response
have increased. If they have, Section 104(e) letters should be
revised accordingly. (See Section 4.2 of this manual for further
discussion of penalties under the heading "Judicial Action to Compel
Compliance/Referrals to DCO.")
The PRP search team may also ask the recipient to send copies of
requested documents to EPA and maintain the original documents
for a specified period of time. The primary benefit of requesting the
preservation of records is notifying parties of their legal duty to
preserve relevant evidence. The region should consider these
factors when deciding on inclusion of preservation language.
Chapters: Baseline PRP Search
105
-------
PRP Search Manual
September 2009
Site/PRP Information Needed
The PRP search team should determine:
• what information is needed to identify PRPs (e.g., manifest
data, names, addresses);
• what information is needed to determine PRPs' liability
(including possible defenses to liability); and
• what site information is needed for future investigations or
response actions (e.g., physical characteristics of the site,
historical data, sample data).
Once this information has been gathered, the PRP search team can
draft the letters to ensure that the responses will contain
information that will advance the PRP search and the site cleanup.
Need for PRP Financial Information
Under CERCLA Section 104, the Agency has the right to collect
financial information in order to determine a PRP's ability to pay
response costs or perform response work. This authority should be
used to request information about insurance coverage, specifically
whether a PRP purchased insurance policies for the period in which
environmental contamination took place, and to obtain copies of
those policies or other evidence of their existence. This information
is particularly relevant when a PRP's financial viability is, or could
be, an issue (e.g., in ability to pay and bankruptcy situations).
(See the discussion of insolvent and defunct determinations in
Section 4.6.2 of this manual.) Each case team needs to determine
if information regarding insurance coverage should be requested,
either in an initial or a follow-up Section 104(e) request.
Chapters: Baseline PRP Search
106
-------
PRP Search Manual
September 2009
Although it is important to assess a PRP's ability to pay response
costs, the PRP search team needs to evaluate the best time for
seeking such information. The team may choose not to request
this information in the first round of information requests unless the
liability of the recipient as a PRP has been reasonably established.
Some regions have found that seeking information such as tax
returns and checking account statements during the first round of
questions has been counterproductive. Recipients of information
requests who are asked to provide financial information about the
site in their first contact with EPA are often reluctant to do so
because they feel it is an unnecessary burden or intrusion on them
and may seek legal counsel to prepare a response or protest to the
Agency. Such actions can lead to delay in getting information
needed to coalesce PRPs and initiate a site response. Therefore,
EPA may wait until it issues general notice letters and ask recipients
to contact EPA if they believe they may have an ability to pay
problem. EPA can then send appropriate financial questions to the
PRP. In this way, recipients without ability to pay problems avoid
having to answer financial questions and submit voluminous
financial records.
When an information request letter concerns a removal action, it
may be necessary to solicit financial information from PRPs so that
the region can decide whether to issue a CERCLA Section 106
administrative order requiring the PRPs to conduct the removal.
Desired Format and Due Date for Response
When developing the information request, the PRP search team
should select an appropriate format for the response. There are
several options, including:
• a written response for each question;
• a fill-in-the-blank checklist; and
Chapters: Baseline PRP Search
107
-------
PRP Search Manual
September 2009
• a written response, signed by the recipient of the letter or a
corporate officer, describing their efforts to locate
documents or knowledgeable persons.
The format will likely vary from site to site or party to party. In
addition to the format, consideration should be given to how much
time the recipient may need to adequately respond to the request.
Time is often of the essence; information requests typically provide
30 days from the receipt of the letter for a response. Methods for
facilitating timely, complete responses include:
• establishing an information repository or publicly accessible
web site related to PRP search activities before or
immediately after issuance of the first round of information
requests. The purpose of such a repository or publicly
accessible web site is to make available non-confidential
information to assist recipients of the information requests
in better responding, reduce the number of inquiries or
requests to the Agency for information, and provide
information to the community at an early point.4 The nature
and location of a repository or publicly accessible web site
may vary from site to site. One region, with assistance from
a contractor, developed a database for the repository.
Physical locations have included regional offices, state and
county facilities, and rental space at facilities that manage
records and provide chain-of- custody services. Contents of
the repository could include;
• site history,
• environmental studies, reports, and sample data,
• copies of notice letters/information request letters;
4
For more information on sharing information with PRPs, consult "Releasing
Information to Potentially Responsible Parties at CERCLA Sites" (March 1, 1990). (See
Chapter 3 References, p. 200.)
Chapters: Baseline PRP Search
108
-------
PRP Search Manual
September 2009
• previous site response reports, if applicable (e.g., an
OSC report), and
• a copy of CERCLA, the NCR, and relevant guidance;
• initiating a dialogue with information request recipients
immediately after issuing the information requests. Such a
dialogue could be in the form of a "town meeting" at which
the PRP search team:
• explains the information-gathering process,
• explains why information request recipients received
their information requests,
• presents factual site information,
• identifies the location and purpose of the repository,
• explains the Agency's authorities and the recipients'
responsibilities, and
• provides copies of site summaries.
Where the information requests are issued concurrently with a
notice letter to perform the RI/FS or some other response action,
this dialogue provides an excellent opportunity for PRPs to coalesce
as a group, exchange information with each other, and assure that
better and more timely information is provided in their responses.
Potential Burden of Responding to Request
Responding to an information request letter imposes a burden on
the recipient. Therefore the PRP search team should review the
generic list of questions to narrow or eliminate questions that are
not appropriate for the individual recipient.
Chapters: Baseline PRP Search
109
-------
PRP Search Manual
September 2009
Type of Information Needed
Information that is collected generally can be classified as either
quantitative or qualitative:
Quantitative Data. This is typical waste-in information: gallons,
drums, cubic yards, and other numerical descriptions of the
materials contributed by the parties. For most sites, the
information of interest will likely be quantitative. It can include
either waste volumes, including waste-in, waste-out, or waste
remaining, depending on the circumstances, or narrative
descriptions that can be converted into waste volumes.
Qualitative Data. This includes all other information that
describes a party, its waste material, or its relationship to a site,
and can range from a substance name (e.g., waste oil, trash), to
the nature of a transaction (e.g., sale, manifested disposal), to
information relevant to PRP status (e.g., a contract confirming that
a party conveyed property with knowledge of contamination).
For owner/operator sites, specific kinds of information may be
required when certain liability issues are raised. For instance, when
the Agency seeks to establish successor liability, it is important to
gather as much factual information as possible regarding the
relationship of the alleged successor to the prior owner/operator.
Consequently, if a corporation may be the legal successor in
interest to a PRP business/corporation, questions seeking
information about that relationship should be included in the
information request sent to that corporation. Similarly, when a
parent corporation may be liable for the acts of its subsidiary under
the legal standard set by the U.S. Supreme Court in United States
v. Bestfoods, 524 U.S. 51 (1998), information requests should seek
factual information about the relationship between the parent and
its subsidiary. The case attorney should provide the questions
Chapters: Baseline PRP Search
110
-------
PRP Search Manual
September 2009
appropriate to either a Bestfoods or successor liability inquiry. (See
Section 3.6 of this manual for more information on these issues.)
Regulatory agencies often have relatively little information
concerning older sites, illegal disposal sites, and owner/operator
sites because the acts resulting in the release of hazardous
substances at these sites were not subject to a regulator's authority
or were not closely monitored by a regulator. The absence of
detailed government documentation about such sites makes the
use of information requests all the more important. Similarly,
chemical formulator cases (i.e., generator cases based on an Aceto
theory of liability, where the Agency argues that waste generation
is inherent in a facility's chemical formulation operations) frequently
cannot be built around information found in regulatory files. When
preparing information request letters for such sites, the PRP search
team should be particularly careful to evaluate information about
the site that is available from other sources, and include questions
in its information requests that solicit the remaining information
needed to establish liability.
Components of Information Request Letters
Although information request letters should be tailored to individual
recipients, listed below are some elements that are commonly
included and types of information that are commonly requested
from the various categories of parties.
For All Recipients
The information request letter should:
• identify the site and briefly describe it;
• explain why the Agency thinks the recipient may have
information about the site;
Chapters: Baseline PRP Search
111
-------
PRP Search Manual
September 2009
• cite EPA's statutory authority under Section 104(e) of
CERCLA and/or Section 3007(a) of RCRA to request
information. (When determining the statutory authority
under which to request information, make sure that the
official who has signed the letter has been delegated the
information gathering authority for each statute identified in
the letter. For example, a letter that requires the production
of information pursuant to both CERCLA Section 104(e) and
RCRA Section 3007 may be challenged if the EPA official who
signs the letter has been delegated only CERCLA Section
104(e) authority.);
• indicate that the Agency plans to enforce its information-
gathering authority under CERCLA Section 104(e)(5);5
• set forth the purpose of the request and its relationship to
the overall case;
• indicate that the response must be in writing;
• indicate that the recipient is responsible for informing the
Agency if any information contained in the PRP's response is
confidential and subject to protection under Section 104(e)
of CERCLA;
• advise the recipient that it must supplement its response if
new information comes to light;
• inform the recipient that he may contact the Agency if he
has questions or needs clarification about what is being
requested; and
• clearly identify when the response is due.
As previously discussed, EPA should consider the recipient's level of legal
sophistication and degree of familiarity with CERCLA when determining the content and tone
of the information request letter. It may not be desirable in every instance to cite the
enforcement provisions of CERCLA in the first round of letters.
Chapters: Baseline PRP Search
112
-------
PRP Search Manual
September 2009
For Owners
The information request letter should ask and give a relevant
timeframe for:
• names and addresses of all known previous owners and
current owners, within the relevant time period, if that time
period has been established;
• period of ownership;
• copy of the deed or other instrument conveying ownership;
• information related to liens or other encumbrances,
including mortgages and copies of those documents;
• identity of lessors, lessees, and the terms of leases,
including lease payment amounts, allowable and prohibited
activities under the terms of the lease, description of any
actions taken to enforce the terms of the lease, and a copy
of the lease;
• description of any other contractual agreements affecting
the property and copies of such agreements;
• if owned by a trust, a copy of the trust agreement;
• if owned by a corporation, corporate records (e.g., annual
reports, meeting minutes) that discuss the property;
• information regarding operations at the property, including
disposal practices (amounts, type of substance, location,
timeframe), and site conditions, including any Phase I or
Phase II investigation, of both present and past
owners/operators ;
• surveys, maps, photographs (including aerial photographs)
of the property;
• copies of insurance policies covering the property;
Chapters: Baseline PRP Search
113
-------
PRP Search Manual
September 2009
• property tax records;
• any permits covering the property (e.g., building,
excavation);
• information specific to the type of site (e.g., questions
designed to allow EPA to make a determination that a party
may be de minimis or"de micromis");
• Any information relating to exemptions or defenses to
liability (e.g., BFPP, acts of a third party).
For Operators
The information requested from operators is similar to that
requested from owners, except that detailed descriptions of the
operations should be requested from operators and from owners
who were also operators. Operator information requests should
seek information needed to identify individuals in charge of past
and present operations as well as persons who may be liable as
operators under the tests set forth by the U.S. Supreme Court in
United States v. Bestfoods. The PRP search team should give
special attention to corporate/subsidiary and successor liability
issues.
For Owners and Operators
• Questions about financial information generally seek to
determine a PRP's ability to pay for or perform a cleanup,
and may include questions about insurance policies that may
provide coverage, such as comprehensive general liability
and environmental impairment insurance.
• When an owner/operator's financial records survive, they
often contain the amounts and dates of customer invoices
and payments, and serve both as a primary source of
Chapters: Baseline PRP Search
114
-------
PRP Search Manual
September 2009
information and a secondary source of conversion rates,
which allow a customer's "one load at $ 5.00" record to be
translated to an appropriate volume.
• Site financial records may be in the form of accounts
payable and receivable ledgers, copies of incoming and
outgoing invoices and checks, deposit slips, and customer
account statements.
• One of the most important categories of information to seek
from the owner/operator is the identity of possible off-site
generators or transporters associated with the site. Such
information may include:
• names and addresses, quantities, and materials sent to
or from the site; and
• any arrangements made with regard to materials.
Materials Handling Information. Ask the owner/operator to
provide a description of information it has on each shipment of
materials disposed of at, transported to, stored at, or treated at
the site, including:
• dates of shipment or disposal;
• quantity and nature of the materials;
• hazardous substances (as defined in 40 C.F.R. § 302.4)
contained in the materials, including information on the
waste and waste stream as possible RCRA hazardous
wastes (This information will help the Agency determine
if RCRA is an applicable or relevant and appropriate
requirement for future response actions, or may be used
later in an allocation of PRP responsibility.); and
Chapters: Baseline PRP Search
115
-------
PRP Search Manual
September 2009
• what was done with the material after it reached the
facility (e.g., further processing).
• Documentation. Request copies of all business records
relating to activities at the site, including customer lists, gate
logs, batch reports and analytical test records, worker
notebooks, laboratory reports on samples of materials, storage
locations for handled items, ledgers, invoices, accounts
receivable and back-up income records for taxes,
correspondence, permit applications, operation reports, deeds
and leases, and spill notifications. Also, consider asking for
correspondence that addresses shipments that were
discontinued because the material was not accepted or
correspondence that threatens to discontinue shipments if
material does not meet standards. This information may be
very useful in distinguishing the hazards and threats posed by
materials associated with various PRPs.
Additional Items to Request from Owners/Operators
• names and addresses of individuals who have information
regarding the items listed above;
• any data or studies resulting from environmental
investigations at the site;
• a description of the files searched by the individual or
corporation in response to the Agency's request;
• special information for particular classes of sites (e.g.,
municipal landfills); and
• a description of the recipient's personal or corporate
relationship to the site.
Chapters: Baseline PRP Search
116
-------
PRP Search Manual
September 2009
In some cases, the recipient will be unable to provide EPA with the
information sought. In these cases, the PRP search manager may
determine that it is necessary to require the recipient of the letter,
or a corporate officer responding for a corporation, to describe the
efforts made to locate information or knowledgeable persons, and
to sign the entire response under penalty of perjury.
For Generators/Transporters
Generator/transporter information requests are often issued in the
follow-up phase of the PRP search based on information received
from the initial round of information requests. The PRP search
team is encouraged, however, to identify and issue requests to
generators/transporters as early as possible in order to establish a
core group of PRPs to work with and facilitate determining which
parties are exempt, de minimis, insolvent, or defunct.
3.3.2
Mail and Track
Information
Requests
Information request letters to persons who arranged for disposal
(generators) and transporters are typically similar in scope to the
letters issued to owners/operators. Information request letters
issued to generators/transporters should request information
regarding their liability. In addition, the information request should
seek information that will establish whether the substance was a
listed or characteristic hazardous waste as defined by EPA.
The PRP search plan should designate the person responsible for
tracking and receiving information requests. To the extent
possible, PRP search managers should arrange for the verification
of the address, and identify an appropriate point of contact (e.g.,
registered agent, corporate counsel) for each recipient prior to
mailing information request letters. While confirming this
information may be burdensome at sites with hundreds of
recipients, it can greatly reduce the number of letters that are
returned due to an incorrect address.
Chapters: Baseline PRP Search
117
-------
PRP Search Manual
September 2009
Information request letters may be sent via:
• Certified mail, return receipt requested. Delivery may also
be accomplished through Federal Express. Use of post office
box addresses should be avoided because there may be no
signature to indicate receipt of the letter. Date stamp the
"green cards" (i.e., the returned receipts) as they are
received by EPA; returned receipt cards often do not show
the date on which the letter was received, and it is difficult
to take enforcement action for late responses without proof
of when the information request letter was received. The
information on the return receipt provides the Agency with
proof that a representative of the recipient received the
letter. Within a week of the mailing, there will likely be
some letters returned to EPA due to reasons such as
"address unknown," "no forwarding address," or "refused
receipt;"
• Priority mail. The U.S. Postal Service will provide the sender
a tracking number to check on line at the www.usps.gov
web site. The recipient does not have to sign for the letter.
If the recipient is located at the address on the letter, the
USPS will deliver the package and post the delivery date and
time on line. Priority mail is a good option when the
recipient has refused a certified letter.
• Air courier. Information request letters may also be sent via
air courier if the courier provides documentation of the
delivery attempt and of the receipt of the delivery.
For letters with address problems, the PRP search manager should
attempt to obtain a valid address for the intended recipient and
re-send the information request. Although this requires some
effort, any effect on the schedule will likely be relatively minor and
the rewards from successful delivery could be significant. Tracking
information request letters should be planned for in advance of
their mailing.
Chapters: Baseline PRP Search
118
-------
PRP Search Manual
September 2009
For those letters that are unclaimed or refused, the PRP search
manager should work with the case attorney to identify options for
successful delivery. If you are confident that you have the correct
address of a PRP and the letter is continually being refused, the
letter can be delivered by the CI or search manager. When parties
fail to comply or only partially comply with information requests,
the Agency will consider its options for encouraging or compelling
compliance, which are discussed in detail in Sections 4.1 and 4.2 of
this manual.
3.3.3
Analyze
Responses
Performing an analysis of the responses received is among the
most important elements of the PRP search. Information request
letters are a basic component of most PRP searches, and responses
may be the only source of information. Consequently, it is very
important that the responses are reviewed by appropriate
personnel in a timely manner. Summaries of responses, which are
often created with contractor support, can be quite useful when a
large number of parties or requests is involved.
Responses to information requests should be analyzed for:
• information that links a party to the site;
• information establishing liability;
• information that establishes a PRP's financial viability, if
necessary; and
• leads that may provide the region with additional
information about a particular PRP, other parties, or site
characteristics.
Chapters: Baseline PRP Search
119
-------
PRP Search Manual
September 2009
Information request responses may help the PRP search team
develop a history of site activities and describe the involvement of
various parties in the treatment or disposal of hazardous materials.
The PRP search team should take care when extracting information
on site history for the baseline PRP search report, especially when
responses are from hostile, uncooperative parties or those with
significant liability concerns; there are often conflicting
interpretations of a site's chronology of events. Responses can be
compared to aerial photographs, state permits, correspondence,
and other information in an attempt to verify site history. The
team member who reviews a response should note if the response
appears incomplete or false. In these situations, the PRP search
manager and case attorney should determine the appropriate
enforcement action.
After analyzing the responses, the PRP search team can begin to
develop a list of parties associated with the site who may be PRPs.
The team should present PRP liability information in evidence
summary sheets created expressly for documenting the liability of
each PRP. A separate evidence sheet for each PRP is advisable.
An assertion of a CBI claim on documents or information submitted
to EPA (whether pursuant to a 104(e) request or under other
circumstances) requires that EPA treat the documents or
information as CBI until such time as OGC or ORC determines that
the information is not entitled to treatment as CBI.6 PRP search
managers and others should segregate any materials claimed as
CBI in order to assure that such materials are not released. A
determination as to whether the submitted materials are entitled to
treatment as CBI must be made in accordance with the regulations
at 40 C.F.R. Part 2, Subpart B. CBI is a complex issue and a
6 40 C.F.R. § 2.201 etseq. (see Chapter 3 References, p. 200) sets out the
procedures for making CBI determinations. EPA may determine the confidentiality of
business information as soon as it is received. (See 40 C.F.R. § 2.204(a)(2), authorizing EPA
to make a CBI determination even though no request for release of the information has been
made.)
Chapters: Baseline PRP Search
120
-------
PRP Search Manual
September 2009
determination that materials are either CBI or not CBI can only be
made by OGC or ORC. The common practice is to maintain
materials as CBI when such a claim is made by the submitter
unless it is necessary to make a formal determination pursuant to
Sections 2.204, 2.205, or 2.207. Generally such a determination
becomes necessary when the material is the subject of a request
pursuant to FOIA or in discovery. There are procedures for EPA
contractors to view CBI materials. It is very important to follow the
CBI regulations; there are civil and criminal penalties for improper
disclosure of CBI materials.
3.3.4 Develop
Response
Summaries
After analyzing the responses to the information request, it may be
helpful to develop summaries of all the responses received.
Response summaries aid the development of site history and
encourage PRP involvement. Summaries can be very useful for
decision makers or other parties involved in the PRP search, who
can review the summaries rather than each individual response.
Contractors can be called upon to assist the Agency in developing
response summaries for cases with numerous information requests.
Care should be taken, however, to avoid having contractors
perform legal analyses or reach conclusions about PRPs' liability, as
these functions must be performed by EPA personnel.
3.3.5 Information
Request
Followup
Once the due date for a response has expired and the responses
have been reviewed, the PRP search manager should coordinate
with the case attorney on appropriate follow-up actions, if needed.
These actions may include:
• issuing a follow-up letter;
• using alternative means to seek a response or clarify the
request;
Chapters: Baseline PRP Search
121
-------
PRP Search Manual
September 2009
• issuing an administrative order to compel compliance; and
• initiating a judicial action asking a court to compel
compliance.
During the review of information request responses, it sometimes
becomes apparent that the recipient simply did not understand
what was being requested, or the recipient did not fully appreciate
the Agency's authority to obtain information or the recipient's
responsibilities in this regard. A follow-up letter may be
appropriate for clarifying the requests or being more explicit in
describing the Agency's enforcement authorities. Model follow-up
letters that have proven to be effective are available in the regions.
Alternative means of seeking responses to information requests are
routinely employed in the regions. In some situations, it may be
appropriate to place a telephone call to the recipient in order to
determine the basis for a lack of response (e.g., more time is
needed, clarification is required). A telephone call should be
followed up in writing to document the nature and content of the
call. In other situations, a personal visit to a recipient to discuss
the information request has been effective in obtaining requested
information. Consider using a less time-consuming approach than
the previous two methods by developing a "speedy type memo",
such as a generic pre-formatted "post-it"-type memo that is filled in
and mailed to the recipient for a response along with the original
information request. This could serve as a simple follow-up method
for seeking clarification of the response or requesting additional
information. When using any of these methods, the resource
requirements and time involved for follow-up actions must be
weighed against the potential gain to the Agency and other PRPs.
Administrative subpoenas, penalties, and administrative and judicial
actions to compel compliance with information requests are
discussed in Sections 4.2 and 4.3 of this manual. Due to the
Chapters: Baseline PRP Search
122
-------
PRP Search Manual
September 2009
time-intensive nature of these actions, they are usually reserved for
the follow-up phase of the PRP search.
3.4
Conduct
Interviews
Interviews complement the collection of relevant site records and
aid in the development of site-specific information that may not be
recorded in government and PRP documents. They are another tool
for collecting or clarifying information on PRPs, other parties who
may have information, site history, disposal operations, locations of
disposal, or other issues relevant to the PRP search. Interviews also
may help identify the existence of relevant documents such as
business and hauler licenses, landfill permits, zoning permits, and
building permits.
The PRP search team should ascertain what the state bar rules are
for providing notice to the attorney representing a business entity
before current employees, and in some cases former employees,
are interviewed. The rules of professional conduct for attorneys
vary from state to state, so it is important to determine what rules
apply in each case. These rules often consider employees to be part
of the corporation or business, with the result that the corporate
attorney may have a right to be notified of the interview and to be
present for it. These considerations may apply even if the EPA
attorney is not present, as CIs, paralegals, contractors, or private
investigators can be said to be working "at the direction of the EPA
attorney." Violations of these rules could subject the supervising
attorney to a range of sanctions.
3.4.1
Interview
Considerations
Interviews are generally performed to identify additional PRPs or
gather evidence for liability determinations. If site documents do
not exist, interviews may be the only method available to obtain
the information needed to complete the search. Interview
questions, therefore, should generally focus on whether the
Chapters: Baseline PRP Search
123
-------
PRP Search Manual
September 2009
interviewee may have participated in the activity being investigated
or may have witnessed the activity.
If site documents do exist, interviews may help clarify the content
of the documents or identify additional leads. The interviewer may
also attempt to determine how the documents were prepared, how
to gain access to documents not already in the Agency's
possession, and how to authenticate documents, if necessary.
Interview questions should focus on whether the interviewee:
• has knowledge of how the documents were compiled and
who compiled them;
• is in possession of the documents; or
• may have additional information.
Factors to consider when deciding whether to conduct interviews
include:
• nature and volume of information already obtained;
• nature and volume of information potentially to be gained
from interviews;
• time required to plan, coordinate, and conduct interviews;
• timing considerations (how interviews fit into scheduled site
activities);
• capabilities and availability of interviewer;
• location and availability of interviewees;
• sources of interviewees;
• documentation or admissibility requirements; and
• canons of ethics and disciplinary rules.
Chapters: Baseline PRP Search
124
-------
PRP Search Manual
September 2009
Nature and Volume Considerations
If the nature and volume of information already obtained is
sufficient to meet the PRP search objectives, conducting interviews
may not be necessary. Although interviews generally provide
useful information, the nature and volume of information potentially
to be gained from an interviewee should be weighed against the
time and effort necessary to plan, coordinate, and conduct the
interview.
Timing Considerations
EPA encourages conducting interviews early in the information-
gathering process whenever possible (e.g., concurrently with the
"file review and record collection" search task). Early interviews
may enhance the PRP search team's understanding of a site's
nature and history, and thereby enable it to plan the remedial
investigation and focus the remainder of the PRP search more
effectively. Moreover, the passage of time may reduce the
availability and cloud the memories of owners/operators and their
employees, who are likely to be among the best sources of site
information. Site-specific factors may dictate that not all interviews
can be conducted as early as might be desirable, however, and
some interviews may be so valuable that delaying completion of the
PRP search report is justified until they can be conducted. In all
cases, however, interviews are intended to complement information
request letters, not to replace them.
Capabilities of the Interviewer
When deciding to conduct interviews, the capabilities and
availability of qualified Agency personnel are an important
consideration. Interviews should be planned far enough in advance
to allow the interviewer to become familiar with the site, PRP
search strategy, and pertinent questions.
Chapters: Baseline PRP Search
125
-------
PRP Search Manual
September 2009
Participants in the PRP search pilot program reported that much of
the success of early interviews can be attributed to the personal
contact between the interviewer and the persons being interviewed.
PRP search personnel noted that interviews are often a more
effective information-gathering tool than 104(e) letters.
Interviews may have several advantages over written contacts:
• An interviewer can follow up immediately on important
statements, rather than send another letter.
• People generally give broader and more valuable answers
when being interviewed in person.
• Eye-to-eye contact may allow the interviewer to better
judge whether an interviewee is forthcoming and truthful.
• Interviews with persons who are cooperative but elderly, ill,
or illiterate often generate useful information that a 104(e)
letter would not.
It is helpful to have access to civil investigators early in the PRP
search process to assist with interviews. Individuals who will not
consent to be interviewed should be sent a 104(e) letter or
subpoena if the potential testimony is determined to be relevant.
Location and Availability of Interviewees
Another important consideration when evaluating use of interviews
is the location and availability of potential interviewees. Ideally, all
interviewees would live in close proximity to one another and
relatively close to the regional office. Interviewees, however, are
often scattered across the country, located in another country, or
unwilling to be interviewed. The PRP search team should balance
the value of each potential interview against its cost in time and
money and then prioritize the interviews. The age and potential
disabilities of an interviewee should be taken into account when
Chapters: Baseline PRP Search
126
-------
PRP Search Manual
September 2009
balancing the value of an interview against available resources. As
discussed above, sometimes an interviewer can obtain information
that would not be provided in a 104(e) response. If resources are
not sufficient to conduct face-to-face interviews, interviews can be
conducted by telephone.
Documentation and Admissibility Requirements
When considering the use of interviews as an information-gathering
tool, it is important to determine the intended use of the interviews.
An Agency employee's notes from an interview have less
evidentiary value than a 104(e) response signed by a PRP, and may
not be admissible at trial. Concerns about the evidentiary value of
information obtained in an interview may determine who should
perform the interview, when the interview should be conducted, or
whether the interview should be conducted. If the Agency desires
to produce evidence that will be admissible in court, then a route
other than interviews typically should be pursued.7
3.4.2
Who Performs the
Interview
Interviews should be performed by EPA staff members who have
experience or specialized training in how to conduct interviews.
They are usually performed by CIs, but in some instances case
attorneys, paralegals, and RPMs have performed or participated in
interviews.
Interviews are best conducted by personnel who have been trained
in interviewing techniques and who are familiar with issues
regarding CERCLA liability. It is also important that the interviewer
be cognizant of any ethical rules or state bar rules restricting contact
with represented parties. Even though the interviewer may
There are caveats to this statement. In general, recorded or signed statements
gained from interviews can be useful in litigation, even though not admissible at trial as
evidence. (See Federal Rules of Evidence 801 through 817, Chapter 3 References, p. 200, for
more information on use of recordings and signed statements.)
Chapters: Baseline PRP Search
127
-------
PRP Search Manual
September 2009
not be an attorney, the ethical and bar rules may be applicable
because the interview or contact may be imputed to the attorney.
In order to interview represented parties, contact should be made
with their attorneys, generally with the assistance of the case
attorney. In any case, the PRP search and/or case team should
consult before interviews are conducted in order to determine the
most effective procedure.
Signed Statements
Interviews are conducted pursuant to the authority of Section
104(e). Face-to-face, in-person interviews conducted by CIs or
other EPA staff can be a good source of information that cannot be
matched by written questions and answers due to the free-flowing
nature of an interview.8 An interview can be used to gather initial
information or to follow up and substantiate information already
gathered. Preparation for the interview is key to obtaining the
most useful information from the person being interviewed.
Interviews can be recorded on tape (with the consent of the
interviewee) or can be reduced to writing in the form of a
statement. If a written statement is to be used, the form is usually
a summary of the most important information learned during the
course of the interview, but the statement can take a different
form, suitable to the situation, the facts revealed, or the preference
of the interviewee. Having the interviewee sign the statement
provides a written record of the recollection of the interviewee at
the time of the interview. Such a record could be used later to help
the interviewee recall events that due to the passage of time may
fade from his or her memory.
Interviews cannot be compelled; if a potential interviewee does not wish to
provide information orally, check with the case attorney who can advise as to the next step if
the information is needed from that person. A Section 104(e) information request or an
administrative subpoena may be appropriate.
Chapters: Baseline PRP Search
128
-------
PRP Search Manual
September 2009
Should the person who signed the statement later change his or
her mind about the events recounted in the statement, the signed
statements cannot later be used to sustain an allegation of perjury.
This is because federal law provides that to commit perjury, a
declarant must "have taken an oath before a competent tribunal,
officer, or person in any case in which a law of the United States
authorizes an oath to be administered." 18 U.S.C. § 1621. EPA
personnel are not persons authorized by a court to administer
oaths. Nonetheless, signed statements have intrinsic value and
anyone can ask a person to sign a statement.
It is possible that the interviewee may voluntarily agree to, or
suggest, attesting to his statement through the use of an affidavit,
signed in front of a notary public. Although EPA personnel are not
authorized to administer oaths, notary publics are, and EPA staff
can prepare an affidavit for signature by the interviewee and notary
public that begins, "I ( ), being duly sworn on oath,
depose and state as follows:" and ends, "subscribed and sworn to
before me, the day of (month), (year).
Notary public (name). My commission expires
(date). [With the notary seal]." An interviewee has no
obligation to sign an oath in front of a notary public, and any
decision to do so must be completely voluntary, without the receipt
of promises or threats of any kind.
3.4.3
Identifying
Interviewees
Interviewees are typically persons who may be able to identify or
locate PRP and site documents. After a thorough review of
collected site information, the PRP search team should develop a
list of potential interviewees by name and address. Once the list is
developed, the PRP search manager should prioritize the
interviewees based on factors such as age or condition, plans to
move out of the area, or one of the factors listed above in
Chapters: Baseline PRP Search
129
-------
PRP Search Manual
September 2009
subsection 3.4.1 of this manual. The PRP search manager should
also review the prioritized list of interviewees in light of resources
available (time, staff, and money) to conduct the interviews.
Potential interviewees include:
Site Operators and Employees (Present and Past)
• plant manager
• plant engineer
• supervisors
• equipment operators
• gate and scale operators
• plant workers
• contractors
• companies
• transporters (truck drivers)
• RCRA Subtitle D waste disposal haulers
On-site Visitors
• vendors
• inspectors
• recyclers
• customers
Federal Government Officials
• federal courts
• bankruptcy courts
• national law enforcement agencies
Chapters: Baseline PRP Search
130
-------
PRP Search Manual
September 2009
• Securities and Exchange Commission
• Department of Veterans Affairs
• Occupational Safety and Health Administration
• U.S. Postal Service
State Government Officials
• environmental agencies
• bureau of vital statistics
• registry of motor vehicles
• secretary of state
• attorney general
• professional licensing board
• probate/superior courts
• department of public health
Local Witnesses
• police officers
• firefighters
• city/county clerks and assesors
• neighbors
• building inspectors
• local government
• meter readers (water, gas,electric)
• county health department
• local library
• historical societies
Chapters: Baseline PRP Search
131
-------
PRP Search Manual
September 2009
3.4.4
Conducting
Interviews
Before conducting interviews, the interviewer should become
familiar with the site and the information needed by:
• reviewing EPA background information on the site;
• obtaining names of state or local government agencies and
officials involved with the site; and
• generating a list of site-specific questions.
Preparing for and conducting the interview may involve:
• preparing a general outline of discussion points;
• determining whether the interviewee is represented by an
attorney;
• knowing the elements of liability and the Agency's case;
• understanding the industry in question, thereby establishing
the interviewer's credibility;
• using visual aids to aid the memory of interviewees;
• preparing specific questions beforehand to ensure that all
topics consistent with the PRP search strategy are covered;
• having two persons present at the interview, if possible, one
serving as the note taker, the other as the primary
interviewer;
• considering whether an EPA attorney should attend the
interview if the interviewee's attorney is going to attend;
and
• determining the interviewee's association with the site and
the basis of her knowledge (e.g., first-hand information,
rumors).
Chapters: Baseline PRP Search
132
-------
PRP Search Manual
September 2009
Government Officials
Interviewing federal, state, or local government officials can be
very productive because these officials, especially state and local
officials, often have an intimate knowledge of the site. Contact
with government officials is generally made by telephone or, if
necessary, by letter or in person. It is generally preferable for
interviews of government officials to be conducted by CIs instead of
contractors as CIs are government employees also and often have
more experience conducting interviews. Telephone calls will suffice
in most cases. If a contractor is conducting the interview, the
contractor should identify himself as an EPA contractor conducting
background research on the site or have a letter of introduction
from EPA if the interview is being done in person. Government
officials should be asked about:
• the availability of relevant documents in the government's
files;
• whether and how copies can be obtained;
• activities on the site before, during, and after the site's
suspected use for waste disposal;
• PRPs associated with the site;
• site enforcement history, including any notices of violation
(NOVs);
• administrative or legal actions involving the site and the
PRPs, and the location of relevant documents;
• relevant state or local regulatory requirements and the
location of pertinent documents such as landfill permits,
building permits, and zoning ordinances;
• any news media articles about the site; and
• other people or organizations knowledgeable about the site.
Chapters: Baseline PRP Search
133
-------
PRP Search Manual
September 2009
Former government employees are also a potential source of
information. Attempt to work out an acceptable arrangement with
officials or attorneys for the relevant agency, even if the scope of
the interview is limited. After obtaining the approval of the former
employee's agency, the former employee should be contacted to
request an interview, just as with other private parties. As always,
contractors performing interviews should be required to obtain
approval from the PRP search team before contacting interviewees.
Interview Facts and Tips
Although the CI and other regional staff conducting interviews
should take advantage of training in interview techniques available
from a variety of sources, the following list contains basic tips to
keep in mind when conducting interviews:
• Attempt to obtain information from more than one source.
• Obtain factual information regarding the background of the
interviewee.
• Investigators do not have authority to grant anonymity to
interviewees.9
• Consider hiring a private investigator who is skilled in
interview techniques to conduct interviews.
• Obtain the cooperation of the interviewee; the interview
may be a precursor to a deposition.
• Never lie to or deceive the interviewee.
9
Although there is no specific official who always has authority to grant
anonymity, investigators have sometimes relayed requests for anonymity to their superiors.
Decisions to grant such requests, however, are entirely ad hoc and depend on the specific
facts of each case. Once the interviewee has been so informed, he may choose to
discontinue the interview pending disposition of the request.
Chapters: Baseline PRP Search
134
-------
PRP Search Manual
September 2009
• Obtain background information about records. This is
important for determining the credibility of the interviewee
and the reliability of records. Find out who prepared the
records and, how, why, when, and from what source they
were prepared.
• Verify the accuracy of information from other sources (e.g.,
use one interview to support another). Use documents to
confirm information whenever possible.
• Attempt to pin down numbers (e.g., "How many drums were
there? More than 10? More than 50?").
• Conduct interviews in a businesslike manner with
professional demeanor.
• Use language that is understandable to the interviewee;
avoid acronyms and technical or legal jargon.
• Do not assume that you know what the interviewee is
saying; clarify when in doubt.
• When arranging the interview environment, consider
individual or cultural "zones of comfort" regarding seating
and privacy.
• Ask the same question a variety of ways.
• Paraphrase and repeat to the interviewee to ensure a
mutual understanding of what is being said.
• Let the interviewee get through his story once before
challenging or asking detailed questions.
• Attempt to resolve inconsistencies in the interviewee's
responses before leaving the interview.
Chapters: Baseline PRP Search
135
-------
PRP Search Manual
September 2009
• Conclude the interview by summarizing important
information, asking if the interviewee can think of anything
else that was not covered, establishing a way to keep in
touch (e.g., providing a business card), and attempting to
obtain any documents identified during the interview.
• Early interviews can sometimes advance the PRP search
process more quickly than sending 104(e) letters to the
same individuals. For example, an early interview of an
owner/operator helped the PRP search team in one region
better understand the business practices leading to
contamination of the site. The general manager was able to
show PRP search personnel how business records were kept
at a treatment and storage facility and how to read those
records. The region was then able to identify other PRPs
and use its enhanced understanding of how the site had
operated to write more specific 104(e) letters to those PRPs.
It is suggested that the interviewer indicate in her interview notes
what can be substantiated and what is speculation.
3.4.5 Interviews are generally documented in one of three ways:
Interview
_ ... • written summaries;
Documentation
• recorded interviews; or
• sworn statements (affidavits) confirmed by a notary,
including a statement to the effect that the declarant/affiant
swears under penalty of perjury that the foregoing is true
and correct.
Signed statements become "sworn statements" if notarized.
Chapters: Baseline PRP Search
136
-------
PRP Search Manual
September 2009
A written summary of an interview is a document written by the
interviewer that summarizes the facts presented by the
interviewee. Although the summary should be written in the third
person, it may be helpful to include direct quotes from the
interviewee within the text, especially when the quotes may be
viewed as particularly incriminating, descriptive, or inflammatory.
Setting aside such language in quotes allows the information to be
conveyed to the reader without bringing the interviewer's neutrality
into question.
The written summary should begin with a heading that includes the
interviewee's name, title, address, telephone number, and other
identifying information; the date and time the interview was
conducted; and the identity of others present, including the
interviewer. If records were provided during the interview,
describe the records in the written summary and state where they
were obtained. If visual aids were used during the interview, note
when and where they were used and attach copies to the report, if
possible. The written summary should be prepared as soon as
possible after the interview.
A recorded interview can only be obtained with the permission of
the interviewee. When recording an interview, the interviewer
should begin by recording an introduction that includes the
interviewer's name, the date and time of the interview, the
location, and the interviewee's name. The interviewer should ask
the interviewee if he understands that the interview is being
recorded, and verify that it is being done with his permission. Ask
the interviewee to spell his name, provide his address, and state his
date of birth. The interviewer also may ask the interviewee for his
social security or driver's license number, but cannot compel the
interviewee to provide them. The interviewer can proceed with the
questions after concluding this introduction.
Chapters: Baseline PRP Search
137
-------
PRP Search Manual
September 2009
After the interview is over, verify with the interviewee that he
understood that the conversation was being recorded and that it
was done with his permission. The interviewer should provide a
closing that includes her name, the name of the interviewee, and
the date and time the interview ended. A transcription of the
recorded interview serves as the written record of the conversation.
After the transcription is completed, the original tape should be
secured in a safe location and the location of the original tape and
identity of the transcriber referenced in the transcript.
In some instances, the interviewee cannot appear in person and the
interview takes place by telephone and is tape-recorded. If the
interviewee agrees to the telephone conversation being taped, the
telephone conversation can be taped on a recorder containing a
beep tone warning. Before taped interviews are conducted over
the telephone, state laws pertaining to recording telephone
conversations should be thoroughly reviewed.
Signed statements are summaries of an interview that are
written in the first person and signed by the interviewee. The
interviewer should conduct the interview and take notes as usual.
The written summary of the interview should be in the first person,
however, as if the interviewee were writing the notes of the
interview herself. The interviewer may choose to summarize the
statement immediately after the interview, or return with the
statement on another occasion. In either case, the interviewee will
read the summary and confirm that it represents the information
that she conveyed in the interview. The interviewee will be
apprised of and given the opportunity to make changes to the
summary before signature. She will then sign the statement.
Although a written summary or recorded interview is useful and in
most instances adequate for the purpose of gathering information,
a signed statement can have a higher degree of credibility. By
Chapters: Baseline PRP Search
138
-------
PRP Search Manual
September 2009
signing, the interviewee confirms the information contained in the
statement. This does not prevent an interviewee from changing his
or her mind later, but a signed statement may be used to refresh
the recollection of the interviewee at a later date. Signed
statements under oath may subject the signatory to perjury if the
interviewee changes his or her mind. Great care must be taken
therefore to ensure that any affidavit is taken voluntarily and the
interviewee has an opportunity to review and edit any statement
before signing the affidavit.
The same database used to organize and track files and other
records may be used to store information concerning completed
interviews. All interview documentation should be assigned an
index number for easy retrieval.
3.5
Perform Title
Search
A title search is a review of public records for information about
past and current ownership of real property. These records may be
located at county, township, or parish clerks' and recorders' offices.
(Tax information is found at the assessor's office.) For PRP search
purposes, the objectives of a title search include:
Primary Objectives
• identifying former and current owners and operators;
• identifying owners and operators at the time of each
disposal;
• identifying potential interviewees;
• providing an accurate legal description of affected property;
• identifying any subdivision or replatting of affected property;
Chapters: Baseline PRP Search
139
-------
PRP Search Manual
September 2009
• identifying current encumbrances to property, including
easements, covenants, restrictions, and any other matters
that currently affect or may affect the title or remediation
plans; and
• establishing a historical chain of title, which provides
historical ownership and may include historical addresses for
former owners and current parcel numbers and addresses.
Other Objectives
• obtaining the deed for evidence;
• determining real estate tax amounts paid or unpaid;
• identifying abutting properties and their owners;
• supplying title search documentation;
• assisting in determining site use;
• identifying outstanding liens against the property (e.g.,
unreleased mortgages, judgments); providing real property
parcel information that can be used to evaluate, select, and
implement components of the remedy (e.g., engineering
and proprietary institutional controls) and determine the
various ownership interests that may be affected by them;
and
• identifying oil, gas, and mineral rights.
Scoping a Title Search
3.5.1
_ . A title search seeks to identify 1) current owners and matters that
Determine
currently affect the property (e.g., easements, mortgages, taxes),
Ownership
and 2) former owners and leaseholders, if leases were recorded.
Interests
Chapters: Baseline PRP Search
140
-------
PRP Search Manual
September 2009
The latter is commonly referred to as a "historical chain of title"
search. For purposes of identifying PRPs, it is important that the
title search cover the period during which contamination is
suspected to have occurred up to the present. Guidelines such as
going back 50 years or to the end of World War II or the first
industrial use of the property can sometimes be useful, but in most
cases determining the relevant period for a search is a highly site-
specific exercise.
Title searches can be very expensive, especially if a site is
comprised of many parcels or if there is a long and complex title
history. Therefore title search activities should be tailored to each
site's specific needs. For example, if ownership information and
legal descriptions are needed solely for purposes of recording deed
restrictions or a lien, or for gaining access during a removal action,
current title information may suffice. When a search is undertaken
to identify PRPs, however, these findings usually need to be
supplemented by information about former owners and
leaseholders.
Title research may be conducted by an EPA employee (often a civil
investigator), a contractor, a title company, or some combination of
the foregoing. Regardless of who performs the title search, the
researcher will need to obtain information about the site location
(including the county, parish, or township), a legal description and
address, parcel information, and the period the title search will
cover. The "Performance Work Statement for Enforcement Support
Services" (Appendix A) addresses title searches as Task 1.9. This
statement may provide useful guidance whether or not contractors
are used.
It is important to bear in mind that a title search consists solely of
the gathering of title documentation, not legal analysis. Some
contractors and title companies will provide title "opinions" for title
Chapters: Baseline PRP Search
141
-------
PRP Search Manual
September 2009
insurance and other purposes, but any title search Statement of
Work should make it clear that such tasks are outside the scope of
the title search.
A Superfund site, as described in a removal assessment report or
screening inspection report, may be comprised of multiple parcels
with one or more owners. Identifying the parcels that make up the
site is an important step in the title search process. "Parcel" is the
term typically used to refer to a legally described piece of real
property. The legal description establishes the boundaries of the
parcel. The property may be described in terms of metes and
bounds or by section, lot number (in recorded plats), parcel
number, or merely a deed reference.
The "assessor parcel number" refers to the parcel number
established for the property by the local taxing authority for
purposes of assessing taxes. The legal document showing the sale
of the property from one party to another, generally called a deed,
will usually include the legal description and perhaps the tax
assessor's parcel number and the physical address of the property.
In most cases, parcels are assessed separately even if they have
the same owner, so a business or company may own a large tract
of land consisting of several parcels for tax assessment purposes.
This may be so even if the business or company received title to
the land by a single deed.
In some jurisdictions, the parcel number may be referred to on the
deed or even form part of the legal description of the property. In
other jurisdictions, the parcel number is usually not found on the
filed deed copy. In such cases, the parcel number, book and page
number of the filed deed, and/or a copy of the parcel map can often
be obtained from the assessor's office if the title searcher can
provide the address, legal description, or owner's name. Once the
book and page number of the deed are known, a copy of the
Chapters: Baseline PRP Search
142
-------
PRP Search Manual
September 2009
current owner's deed can be obtained from the recorder's office.
Most county recorders and assessors will not go back in the records
any farther than the current owner as they consider that a title
search.
Additional title searches may be necessary if contamination has
been found migrating off site. A title search also may be conducted
for parcels adjacent to the site if, for example, EPA will need to
obtain access from owners or ultimately implement institutional
controls on properties that abut the site. In addition, a title search
of adjacent parcels may disclose names of people familiar with past
or present site activities who can be contacted and interviewed. It
also may provide information about other activities in the area that
may have contributed to contamination at the site.
In some cases, a professional survey may be necessary. If a
property's legal description were unclear, for example, a survey
might serve to clarify its boundaries. A survey also may be
required to identify the portion of a site or other property the use of
which is to be restricted by institutional controls if this portion is not
coextensive with the boundaries as defined in title documents.
In this case, a survey might be needed to establish the location of
physical contamination in relation to those boundaries as it may be
necessary to consider the entire extent of such contamination and
impose the controls on many or all the parcels within the
contaminated area, not solely on the parcel where the facility that
caused the contamination is located.
The PRP search manager, in consultation with the case attorney,
should establish site-specific title search requirements.
Site-specific determinations should include:
• the time period the title search is to cover;
Chapters: Baseline PRP Search
143
-------
PRP Search Manual
September 2009
• the area the title search is to cover (identified by site parcel
legal descriptions, county tax assessor parcel numbers or
street addresses, or section, range, and township numbers);
• whether certified copies of title documents and deeds are
required;
• the format of the title search results summary; and
• what documents and information should be included in the
title search report (e.g., current and historical parcel maps,
liens and encumbrances, types of deeds and leases, legal
descriptions).
Documentation
Title search documentation may include:
• warranty deeds
• quitclaim deeds
• grant deeds
• indentures
• deeds of trust
• trustees' deeds
• land patents
• executors' (or administrators' or personal representatives')
deeds
• sheriffs' deeds
• tax deeds
• mortgages
• easements
Chapters: Baseline PRP Search
144
-------
PRP Search Manual
September 2009
• liens (e.g., tax, mechanics, Ms pendens, declaration of
takings)
• declarations of restrictive and maintenance covenants
• leases
• mineral leases
• oil and gas leases
• parcel maps
• plat and subdivision maps
• tax statements/appraisals
• UCC Article 9 statements
• financing statements
• real estate contracts
• bills of sale
• powers of attorney
• assignments
• affidavits
• wills
• bankruptcy proceedings
• judgments
It is useful to request that the title search provide both signature
and recordation dates of documents as documents are not always
recorded in a timely manner and recordation dates may affect the
priority of liens and encumbrances. It is also useful to obtain both
current and historical parcel maps and to note any changes in
parcel numbers or dimensions that have occurred.
Chapters: Baseline PRP Search
145
-------
PRP Search Manual
September 2009
Note that leases are not always recorded, but may still be found by
researching tax records for the property. Lessees may have
personal property at facilities on which they pay taxes. Personal
property includes structures, portable buildings, or any other
physical property that the county has the ability to tax, but does
not include the land itself.
The title search may also discover information about the business
form of past and present owners (e.g., partnership, corporation).
Documents relating to the business form, however, are likely to be
found in the office of the Secretary of State or other repository of
business records, not in the office where land title records are
found. (See subsections 3.6.1 through 3.6.9 and 3.6.11 of this
manual for further discussion of business forms and records.)
3.5.2
Develop a Title
"Tree" or
Chronology
The next major step in the title search process is to develop a title
"tree" or chronology that organizes the documents obtained through
the title search. It should include a reference list of all recorded
documents, including their location by book and page number.
Recorded documents may include any of those listed above.
Generally, the title "tree" or chronology provides a brief description
of each transaction, including whether it affected all or only a
portion of the site. This summary of site ownership history may
include:
the terms of the transaction (e.g., a five-year recorded
lease);
whether the transaction transferred all or only some of the
rights to the land (e.g., in mining areas it is important to
know whether the mineral rights were transferred with the
surface rights, and what, if any, rights were retained by the
transferor);
Chapters: Baseline PRP Search
146
-------
PRP Search Manual
September 2009
• explanations and implications of specific real property,
contract, or other specialized terms such as quitclaim deed,
conditional sales contract, and partial release of deed of
trust and mortgage; and
• charts and maps, if considered useful (e.g., at multi-parcel
sites, maps can be a particularly useful tool for organizing
site, contamination, ownership/title, and related
information).
Upon receipt of the title search, the PRP search manager should
review title search work products to determine whether the correct
property or properties (i.e., the various parcels that may make up a
site) were researched. Making this determination is often difficult
and uncertain due to the technical terminology used in property
descriptions and the sometimes extensive subdivision and merger
that properties undergo. The best practice, whether the title search
is performed by contractors or in house, is to use CIS mapping
software to plot the legal descriptions obtained from the title
documents against a current county parcel map that identifies the
parcels of interest to EPA. This plot can be compared with the
parcel map to ensure that the legal descriptions match the property
of interest.
The PRP search manager also should review title search work
products to determine whether:
• the correct property or properties (i.e., the various parcels
that may make up a site) were researched;
• the correct documents were provided;
• any deeds or other title documents are missing, incomplete,
or unreadable;
Chapters: Baseline PRP Search
147
-------
PRP Search Manual
September 2009
• the property descriptions in the documents relate to site
property;
• the chain of title is continuous (i.e., no gaps appear in the
chain); and
• leases and deeds were reviewed for restrictive language
concerning ground water or land use.
A title search is complete when the ownership history is complete
(i.e., it contains no gaps between owners or provides an
explanation of any gaps). A title search report should always end
with a statement such as, "As of [date] there had been no further
conveyances."
3.5.3
Additional Uses
for Title
Documents
As noted above, deeds and leases may contain language restricting
ground water, surface water, or other land uses. Title documents
may also contain information about installation of sanitary sewers,
storm drains, historical features, and other easements that may
become important later in the investigation. Careful examination of
grantor/grantee information in these documents may also help
explain relationships within privately held companies, such as
changes in officer positions over time.
3.5.4
Updating Title
Information
Response actions often involve the use of institutional controls and,
in turn, often require that environmental covenants or similar "deed
restrictions" be recorded against the property that comprises the
site. When institutional controls are being contemplated, the title
search can be brought up to date to identify current encumbrances
that might affect environmental covenants. It also may be useful
to consult U.S. Army Corps of Engineers historical records on rivers
and creeks as Corps projects can effect changes in property
boundaries that are often not documented in local property records.
Chapters: Baseline PRP Search
148
-------
PRP Search Manual
September 2009
It is important to bear in mind that institutional controls cannot be
placed on property without the written consent of the property
owner, whether the owner is a PRP or not.
3.6
Business Status
and Financial
Research
3.6.1
Introduction
CERCLA Section 107(a) identifies four classes of "persons"
who may be liable for costs incurred by the United States, a
state, or an Indian tribe, and who may be liable to perform
future response actions at a site. (See discussion in Section
1.2 of this manual.)
Individuals and a variety of commercial and governmental
entities may qualify as a person because of their own acts
and omissions or because of the acts or omissions of others.
(See CERCLA Section 101(21) for the definition of "person.")
The PRP search should determine, for each PRP identified,
whether the person still exists, if the person is still viable,
and the exact name used by the person today.
In many cases, records gathered, such as manifests or trip
tickets, may identify a PRP as the PRP was known years ago.
During the time that has elapsed since the records were
created, the name of the entity may have changed and a
different business may be operating under the same name.
Therefore, it is crucial to trace each person from the time of
liability to the present so that EPA can correctly identify who
is liable to perform or pay for the cleanup.
For individuals, a portion of this research is completed by
performing skip tracing and asset searches. (Skip tracing is
the process of locating someone who has gone missing
whether deliberately or not.)
Liability may extend beyond the assets and the earnings of
the person, depending on the type of person (e.g., sole
proprietor, partnership, corporation) and as provided by the
laws of the state in which the entity operates.
Chapters: Baseline PRP Search
149
-------
PRP Search Manual
September 2009
Liability of a person may continue long after the original
person or business has ceased to exist. As a result, more
than one existing person may be liable.
3.6.2
Forms of
Business
Organization
The following is a general introduction to the forms in which a
business may be organized. It includes a definition of each form, a
brief description of the formalities required to begin the form, and a
simplified description of who is liable for the acts, omissions, and
debts of a business organized in that form. Formation and liability
of a business or commercial entity are governed primarily by the
law of the state in which the entity operates or is headquartered.
Identifying the specific business entity (or form) is necessary in
order to accurately identify the PRP, as well as collaterally liable
parties.
[Note: This section presents a general overview of the formation
and liability of businesses and may not be applicable to every case.
It is recommended that you consult with the appropriate attorney
in your region when assessing the potential liability of PRPs
associated with a particular site.]
3.6.3
Person
In order to understand the significance of various business forms as
they relate to the CERCLA liability scheme, it is helpful to review
the definition of "person" in the statute. CERCLA Section 101(22)
defines a "person" as "an individual, firm, corporation, association,
partnership, consortium, joint venture, commercial entity, United
States Government, state, municipality, commission, political
subdivision of a state, or any interstate body."
As defined, each person can perform commercial acts, such as
opening bank accounts, buying or leasing property, selling
merchandise, borrowing money, and providing services. As a
Chapters: Baseline PRP Search
150
-------
PRP Search Manual
September 2009
consequence of these commercial acts, persons can be liable, under
both civil and criminal statutes, for the consequences of their acts
or failure to act. For instance, a partnership can be held liable for
damages caused by an employee of the partnership, performing an
act within the scope of his employment, who injures another
person. In civil actions, courts may require a partnership to pay
damages or perform other remedies; in criminal actions, the
individual partners may be fined or imprisoned.
3.6.4
Business
Organization
The organization of a business, both in terms of the formalities of
creating a business and the structure or form of the business, is
governed primarily by state law. Almost all states have adopted all
or parts of several model laws, such as the Uniform Commercial
Code (UCC), the Model Business Corporation Act, and the Uniform
Partnership Act. Each state, however, has the authority to codify
its own requirements for those who wish to start a business.
The three most common business organizations are sole
proprietorships, partnerships, corporations.
3.6.5
Sole
Proprietorships
Definition: Businesses owned and operated by an individual (or a
married couple). The business is regarded as an extension of the
person, with no legal or commercial distinction.
Taxation: The profits and losses of the sole proprietorship are
reported directly on the individual's tax return and are normally
recorded on a Schedule C, which is attached to the individual
income tax return, Form 1040.
Ownership and Liability: All the assets of the business are owned
by the individual, the individual controls the activities and direction
of the business, and the individual is liable for all the debts and
obligations of the business. Accordingly, any asset owned solely by
Chapters: Baseline PRP Search
151
-------
PRP Search Manual
September 2009
the individual could be reached to satisfy any debt of the sole
proprietorship. For assets owned by the individual jointly with
another individual(s), it may be necessary to research the laws of
the state where the asset is located or the individual resides. This
is especially true for non-business assets owned jointly with a
spouse.
Registration: A sole proprietorship is not generally required to
formally register to establish a business but may be regulated by a
variety of state and local agencies, often for reasons related to
health and safety, professional standards, or tax revenue.
Accordingly, a sole proprietor may need to file appropriate
documents in order to use a fictitious business name or to obtain a
business license.
3.6.6
Partnerships:
General
Partnerships and
Limited
Partnerships
Definition: Partnerships are associations of two or more persons to
carry on a business for profit as co-owners. Partners can be
people, other partnerships, corporations, trusts, or any other
person as defined under state law. There are generally two types
of partnership, general and limited.
Taxation: Even though the partnership itself is not required to pay
income tax, the partnership is required to file a return of
partnership income (Federal Form 1065). Attached to the
partnership return is Form K-l, which allocates all income or loss of
the partnership among the partners. Each partner then reports its
portion of the profit or loss on its own income tax return.
Ownership and Liability: Partnership property is owned by the
partnership, and may not be used to directly satisfy the personal
debts or obligations of the partners. Under specific circumstances,
however, a creditor may move to dissolve the partnership or sell
the debtor partner's interest to resolve the personal debts of the
Chapters: Baseline PRP Search
152
-------
PRP Search Manual
September 2009
partner. Although debts of a partner may not directly attach to the
assets of a partnership, the debts of the partnership may attach
directly to the assets of general partners.
3.6.6.A
Elements
Specific to a
General
Partnership
Unless there is an appropriate filing in the state where the business
activity occurs to create some type of person such as a limited
partnership or corporation, any group of two or more persons
(other than a married couple) that is formed for a common
business purpose normally falls into the category of a general
partnership. In a general partnership all partners are general
partners (i.e., they participate in the management and operation of
the business). Each general partner may bind or legally obligate
the partnership. Each general partner is entitled to full information
and disclosure about partnership matters and business. Each
general partner has a fiduciary relationship to the others; that is,
each owes the others his best efforts to make the partnership as
successful as possible. Typically, a general partnership is formed
by a written agreement that may or may not be recorded with the
county or the state in which the partnership does business. A
general partnership may also be formed by oral agreement.
Ownership and Liability: Each partner is personally liable for all
debts and obligations of the partnership. Accordingly, the assets of
each general partner may potentially be reached by a creditor.
Assets of the partnership, however, belong to the partnership, and
may not be used to satisfy the personal debts of partners.
Registration: A general partnership usually does not require any
formal registration to establish the business, but may be regulated
by a variety of state and local agencies, often for purposes related
to health and safety, professional standards, or tax revenue.
Accordingly, a partnership may need to file appropriate documents
in order to acquire a business name or obtain a business license.
Chapters: Baseline PRP Search
153
-------
PRP Search Manual
September 2009
3.6.6.B
Elements
Specific to a
Limited
Partnership
Definition: A limited partnership is a business association of at
least two legal persons, one or more of whom are general or
managing partners, and the rest of whom are limited partners.
Limited partners invest capital in the partnership, but do not
participate in its management. They are investors, much like
shareholders in a corporation, entitled to distributions of profits, but
without any authority to direct or run the business (no control).
Limited partners may sell their interest without dissolving the
partnership and without the consent of the other partners. Their
withdrawal or death does not dissolve the partnership. A statement
or agreement of limited partnership must be in writing and filed,
either with the county in which the partnership has its principal
office or with the secretary of state's office, or both. Failure to file
the appropriate papers and abide by the appropriate state
regulations for the state in which the business activity takes place,
may affect the limitation of liability that generally protects the
limited partners. As in general partnerships, general partners have
a fiduciary responsibility to the limited partners to put forth their
best efforts toward the success of the partnership.
Ownership and Liability: A general partner has unlimited liability
for the debts and obligations of the limited partnership. A limited
partner's liability is normally limited to the amount of his
investment.
Registration: A statement or certificate of limited partnership
must be filed with the secretary of state or equivalent and, when
required by specific states, with the county in which the partnership
has its principal place of business. The statement or certificate
generally identifies the partnership name, partnership address,
general partners, agent for service of process, and term or duration
of partnership. Partnership interests or percentages may also be
identified.
Chapters: Baseline PRP Search
154
-------
PRP Search Manual
September 2009
3.6.7
Corporations
Most states have adopted the Model Business Corporation Act or
the Revised Model Business Corporation Act, which lend uniformity
to requirements for incorporation. Nearly every state, however,
has adopted different requirements for documents that need to be
filed, the jurisdiction for filing those documents, the amount of
disclosure required, and regulations governing the sale of stock,
among other items. These differences make it necessary to
become familiar with the requirements of each state.
Definition: The Corpus Juris Secundum (18 C.J.S. § 2) explains
that a corporation is an artificial entity created by the law of its
state of incorporation. A corporation is made up of a body of
individuals (shareholders) "united as a single separate entity under
a common name" with a perpetual existence. For legal purposes, a
corporation's status under the law is that of an individual, even
though one corporation may be an affiliate of another corporation
or corporations, such as a parent or subsidiary.
Although an artificial person, a corporation "is entitled to rights
under the law, and must enforce its own rights and privileges."
The "essential attribute of a corporation is the capacity to exist and
to act, within the powers granted, as a legal entity" separate and
distinct from its shareholders.
The characteristics of a corporation generally include:
• the capacity of perpetual existence;
• the power to sue or be sued in the corporation's name;
• the ability to purchase, own, and sell property and real
estate;
• the ability to engage in specified business as set forth in its
articles of incorporation; and
• any other characteristics and powers as provided by statute.
Chapters: Baseline PRP Search
155
-------
PRP Search Manual
September 2009
"The law of the state of incorporation," however, "determines the
status, nature and functions of a corporation."
Taxation: Unless the corporation is a Chapter S corporation, it files
its own tax return and is responsible for paying the income tax on
its earnings. Any divestiture of assets from the corporation to the
shareholders is identified as a dividend and this dividend is taxed
on the shareholders' tax returns. (See p. 158 for a discussion of
Chapter S corporations.)
Ownership and Liability: Shareholders own stock in the
corporation. The corporation in turn owns the assets of the
corporation. Shareholders, officers, and directors are generally not
liable for the debts of the corporation. Shareholders are at risk to
the extent of their investment in the corporation.
Regulation: Corporations must be incorporated under state law
and must comply with regulations applicable in that state in order
to maintain their standing as legal persons. Corporations must also
register in the states in which they conduct business. In some
states, a corporation that has had its corporate charter revoked no
longer operates as a corporate person and may instead be
operating as some other type of entity (e.g., partnership, sole
proprietorship). In addition, corporations seeking to sell stock or
other securities to the general public are regulated by the Securities
and Exchange Commission (SEC), and must provide substantial
disclosure to the public, as noted in subsection 3.6.11.C of this
manual.
3.6.7.A
Elements Unique
to Corporations
Continuity. A corporation is established in perpetuity, and
can continue to operate even in the event of death,
disability, or withdrawal by shareholders, directors, or
officers.
Chapters: Baseline PRP Search
156
-------
PRP Search Manual
September 2009
ft,_ J
Transferability of equity interest. Equity interest in a
corporation is evidenced by shares of stock, which can
generally be freely sold or transferred, subject to applicable
regulations.
Constitutional rights similar to, but more restricted
than, those of a natural person. Constitutional rights
granted to corporations include protection from
unreasonable search and seizure, freedom of speech, and
the right to trial by jury. Constitutional rights not granted to
corporations include the privilege against self-incrimination
and privacy rights.
Separate existence as a legal person. A corporation
exists as a person at law, separate and distinct from its
shareholders, directors, officers, and employees.
Claims of creditors. When a corporation is dissolved or
winds up its affairs, assets of the corporation must be used
to satisfy creditors first. Creditors must be notified and
given an opportunity to present a claim for payment. After
all creditors are paid, then stockholders are entitled to a pro
rata distribution of remaining assets, if any.
3.6.7.B
Classification of
Corporations
Public vs. Private Corporations
In a public corporation, stocks or shares are listed on a stock
exchange such as the New York Stock Exchange, the American
Stock Exchange, or the NASDAQ, and are available for purchase or
sale either directly from the corporation or via a stock brokerage
firm such as Charles Schwab, Merrill Lynch, or Morgan Stanley. In
order to offer securities for sale to the general public, a corporation
must provide a very high level of disclosure, including disclosure of
specified financial statements, matters that are material to the
economic existence or well-being of the business, the identity of
Chapters: Baseline PRP Search
157
-------
PRP Search Manual
September 2009
the corporation's major shareholders, and the identity of entities
seeking to acquire major stock interests. Such disclosures are filed
with the SEC and are required as long as the corporation remains
publicly traded.
In privately held corporations, stock or shares are sold or issued
only to selected private parties, and are not offered or sold publicly.
Shares are often held by one person, a family, or those who
incorporate the business, and shareholders are often directors or
officers of the corporation as well. Such a corporation is generally
known as a "close" or "closely held" corporation.
C vs. S Corporations
In C corporations, both the corporation and its shareholders are
subject to income tax. The corporation is taxed on its net income,
and shareholders must report any dividends received from the
corporation as well as gains (or losses) on the sale of stock. There
are no limits to the number of shareholders in C corporations, and
C corporations may be either publicly or privately held.
An S corporation is a corporation that elects to be taxed like a
partnership, such that the income of the corporation is allocated or
passed through to the shareholders. S corporations avoid the
double taxation of C corporations, since only the shareholders
report taxable income in the form of dividends or distributions. S
corporations are limited by law to 35 or fewer shareholders and are
normally privately held corporations.
Domestic vs. Foreign and Alien Corporations
A corporation is a domestic corporation in the state in which it
incorporates. It is a foreign corporation in all other states in which
it qualifies to do business. An alien corporation is a corporation
Chapters: Baseline PRP Search
158
-------
PRP Search Manual
September 2009
qualified to do business in a state in this country, but incorporated
in a different country, such as Great Britain or the Netherlands.
Consult OGC and regional staff attorneys regarding the feasibility of
imposing CERCLA liability on foreign corporations, alien
corporations, or holding companies owned or capitalized by alien
corporations.
Profit vs. Non-Profit Corporations
Profit corporations are established as business enterprises whose
primary goal is to produce goods or services that may be sold for
more than it costs to make or furnish them. Even though a
for-profit corporation may not show a "profit," particularly on its tax
returns, it remains a for-profit corporation by virtue of the form in
which it was incorporated. Non-profit corporations are established
to conduct a variety of enterprises, but are distinguished from
for-profit corporations in that dividends are never distributed to
stockholders. In general, non-profits do not even issue stock.
Non-profit corporations often manage condominiums or common
ownership associations, foundations, and other beneficial
enterprises.
3.6.7.C
Evolution of
Corporations
Name Changes
All corporations must be authorized by a state in order to conduct
business in that state, and are granted the exclusive right to use
their corporate names as part of that authorization. As long as a
corporation abides by the appropriate state regulations, such as
filing annual reports and paying applicable state taxes and fees, it
maintains exclusive rights to this corporate name. The practical
effect is that there is only one corporation at a time within a state
using precisely the same name (i.e., there may be only one General
Electric Corporation in a state operating at any one time).
Chapters: Baseline PRP Search
159
-------
PRP Search Manual
September 2009
Sometimes a corporation decides to change its name or merges
with another corporation and as a result of the merger assumes a
new corporate name. Upon assuming the new corporate name, the
old corporate name may become available for use by another
business. The corporate name may also become available if the
corporate charter is revoked, the corporation is dissolved, or the
corporate authorization lapses due to inactivity or failure to file an
annual report.
As a result of name changes, more than one corporation may at
different times conduct business under the same corporate name.
Also, because corporations must be authorized to conduct business
on a state-by-state basis, it is possible for distinct, unrelated
companies with the same corporate name to operate in different
states. Once a corporation has been identified, it is necessary to
confirm its name and the state of incorporation where Superfund
liability arose. Once the corporation is correctly identified, it is
necessary to determine its current status.
A corporation cannot escape liability simply by changing its name.
If investigation reveals that ABC Corporation was incorporated in
1970 and sent hazardous substances to a Superfund site in 1975, it
is still liable today even if it changed its name to XYZ Corporation in
1995.
Mergers
A merger is a combination of two or more corporations into one
surviving corporation. As a general rule, the liabilities of the
combining corporations are inherited by the surviving corporation.
Accordingly, once evidence of a corporation's liability has been
established, all that is needed to link the liability case to the
company that survived the merger is documentation from the state
Chapters: Baseline PRP Search
160
-------
PRP Search Manual
September 2009
that confirms the merger. Examples of such documentation may
include:
• articles of incorporation and amendments;
• resolutions of the board of directors;
• merger agreements; and
• proxy statements.
Asset Sales
A corporation may sell part of its business operations, facilities, or
other assets (e.g., real property, equipment) to another
corporation, but it cannot avoid CERCLA liability simply by divesting
itself of an asset. For example, a corporation may sell a facility
where hazardous substances were deposited, but doing so will not
relieve it of liability under CERCLA Section 107(a)(2) if it owned the
facility at the time of disposal. Therefore the PRP search should
continue to investigate the selling corporation with particular
attention to the proceeds of the asset sale. (See subsection
3.6.10.F of this manual for exceptions to this general rule.)
Ownership of stock in a corporation may change over time.
_ _ _ _ Exchange of stock in and of itself does not change the corporate
O.D.7.D
person. Accordingly, if the only change in a corporation is the
Sale of Stock in a
ownership of its stock, then there is no change in the identity of the
Corporation |jab|e pgrty
If the facts developed during a PRP search identify a situation
where either all or a majority of the stock of a liable corporation is
sold to a different "person," it may be appropriate to conduct a
Chapters: Baseline PRP Search
161
-------
PRP Search Manual
September 2009
more thorough investigation to confirm that the exchange of stock
was the only change that took place. In some circumstances,
ownership of all or a majority of the stock of a corporation by one
person may signal the existence of additional PRPs. These issues
are discussed in subsection 3.6.10 of this manual.
3.6.8
Indemnification
Agreements
An indemnification agreement is a contract between two or more
parties in which one party agrees to be obligated to pay for or
reimburse another party upon the occurrence of specific events as
set forth in the contract. A PRP may seek to transfer its liability to
another party through such an indemnification agreement. Since
the United States is not typically a party to such agreements, it is
not bound by their terms and conditions. Moreover, resolution of
disputes and alleged failures to perform arising from such contracts
requires recourse to a court of competent jurisdiction. In some
instances, it may turn out that the indemnifying party is incapable
of fulfilling its obligations due to a lack of financial resources.
When a PRP search identifies the existence of an indemnification
agreement, ORC and possibly DOJ should be consulted to
determine how best to proceed. Generally, it is the responsibility of
the parties to the indemnification agreement to assure compliance
with the agreement. Although an indemnifying party may agree to
perform or pay for work, it is important that the United States
retain enforcement authority over the PRP who is being
indemnified. Under appropriate circumstances, EPA may seek an
agreement from the indemnifying party not to contest its obligation
to indemnify the PRP. If the indemnifying party agrees, it is
essential that its agreement not be obtained in a way that
inadvertently effects a waiver of the United States' enforcement
authority over the PRP who is being indemnified.
Chapters: Baseline PRP Search
162
-------
PRP Search Manual
September 2009
3.6.9 Trusts
Other Entities
Trusts are legal creations, often created to hold property so that
assets may be transferred to another person without expensive and
lengthy probate court proceedings, or to avoid inheritance taxes.
There are typically three parties identified in a trust agreement. The
grantor or trustor bequeaths or transfers property to the trust. The
trustee is the manager or executive for the trust, with an obligation
to follow the trust documents in managing and distributing trust
assets. The beneficiary or beneficiaries are the persons who are to
receive or inherit the property. One type of trust, often known as a
spendthrift trust, provides for the distribution of property or income
according to a fixed schedule or at the direction of a trustee to one
or more beneficiaries in order to prevent the beneficiary from
squandering it all at once. Trusts may also be established to
provide for the long-term care of an incompetent or disabled
individual, particularly when the beneficiary is younger than the
grantor. Trusts are created pursuant to state law, and the forms,
purposes, and limitations of trusts vary from state to state.
Because a trust may have legal standing as a "person" under state
law, it may be liable as a PRP under CERCLA. It is therefore
essential to understand the law of trusts of the state in which the
trust was created and of the state in which the assets of the trust
are located.
A trust is created by a trust document or instrument, which may or
may not be recorded, but must be in writing. The document
identifies the parties and describes the property, which may be
personal or real property, that is to become the trust estate. The
document also lists the duties of the trustee, provides for successor
trustees, and enumerates the conditions under which trust assets
may be distributed to the beneficiaries. Some trusts are
irrevocable, which means that the property is transferred without
the possibility of the grantor changing her mind. Other trusts are
revocable, which means that the grantor retains the right to revoke
Chapters: Baseline PRP Search
163
-------
PRP Search Manual
September 2009
the trust and recover the trust property. In cases where a PRP
grantor continues to enjoy the use or benefit of the trust property,
EPA may conclude that the trust is a sham and take legal action to
void or set aside the transfer of the trust property.
Trusts are required to file federal income tax returns (Form 1041)
annually to report income, expenses, distributions of trust property,
and any tax liability.
Holding Companies
A holding company typically does nothing more than own the stock
of corporations that actually create goods or provide services.
Shell Corporations
A shell corporation is a corporation that exists on paper, but has no
real existence. Often a shell corporation may be a holding
company or the shell may exist only to preserve a corporate name,
public image, or intangible right or property. The officers,
directors, and shareholders of a shell corporation may be difficult to
identify, and may not actually conduct any business.
Joint Ventures
In many respects, a joint venture is indistinguishable from a
general partnership. It is an association of two or more entities,
generally with a finite or defined purpose. An example of a joint
venture is an association of two construction companies who
"jointly" bid on and construct a large building that would be beyond
the capacity of either company separately. Joint venture
agreements may be, but do not have to be, written. The primary
difference between a joint venture and a partnership is that the
joint venture is generally formed for the duration of a project, and
Chapters: Baseline PRP Search
164
-------
PRP Search Manual
September 2009
then disbanded, while the life of a partnership is governed by the
time specified in the partnership agreement or the desires of the
partners.
Municipalities
Counties, cities, and municipalities are creations and subdivisions of
state governments, established by charter or other act of the state
legislature. They are legal entities, much like corporations, but
have the power to require investments by the public through taxes
in addition to offering voluntary investment opportunities through
municipal bonds.
Limited Liability Companies
Many states have adopted provisions under either their Uniform
Commercial Code or Business Corporation Act to allow for the
creation of a business entity known as a "limited liability company."
The member(s) or company enjoy(s) the limited liability protection
generally afforded to shareholders of corporations. Requirements
include public notice or registration of the entity as a limited liability
company and, in some cases, use of the term limited liability in the
company name.
3.6.10
Additional
Liability Theories
As a PRP search progresses, information gathered may suggest that
the investigation be expanded to include additional "persons." This
section supplements the discussion of CERCLA liability in Chapter 1
by outlining theories of extended potential liability under
CERCLA. This information is intended to assist regional attorneys
and others participating in or performing the PRP search in
developing appropriate liability recommendations. Because the
interpretation and validity of these liability theories may be viewed
or applied differently in each federal judicial district and from state
Chapters: Baseline PRP Search
165
-------
PRP Search Manual
September 2009
to state, it is strongly recommended that ORC and DCO be
consulted to ascertain the current applicable judicial interpretation
given the facts of each specific case.
3.6.10.A
Direct Liability of
a Person as an
Operator or as a
Person Who
Arranged for
Disposal or
Treatment of
Hazardous
Substances
Subject to the appropriate legal defenses and exemptions outlined
in subsections 1.2.5 and 1.2.6 of this manual, the owner of real
property constituting a Superfund site is a responsible party.
CERCLA, however, does not limit liability solely to the owner of the
real property. Instead, as discussed in subsection 1.2.4 of this
manual, liability may also be imposed upon operators and on
"persons" who arranged for treatment or disposal of hazardous
substances (generators) and transporters. As the PRP search
proceeds, many additional "persons" are often identified who
played more or less extensive roles in directing or managing the
activities of the business entities whose acts in turn created the
hazardous conditions found at the Superfund site. Based on
case-specific information developed during the PRP search, the
Agency may establish that the actions and involvement of these
"persons" were so extensive that liability should be imposed upon
them, notwithstanding such traditional shields against liability as
the corporate shield or a person's status as a limited partner.
Federal courts have held that these actively involved persons may
be named PRPs based upon the definition of "person" in CERCLA
Sections 101(21) and 107(a) under a liability theory known as
direct liability.
3.6.10.B
Corporate
Officers,
Directors,
Shareholders, or
Employees
In addition to holding a corporation liable, the United States has
brought CERCLA actions against officers, directors, employees, or
shareholders of corporations. In general, corporate officers,
directors, shareholders, and employees have limited individual
liability for unlawful or tortious acts of a corporation. Courts,
however, have applied by analogy the standard of direct CERCLA
liability established in United States v. Bestfoods (discussed in
Chapters: Baseline PRP Search
166
-------
PRP Search Manual
September 2009
subparagraph 3.6.10.C of this manual) to corporate officers,
directors, shareholders, and employees. Courts have ruled that an
officer, director, or shareholder may be "directly liable," (i.e.,
personally liable) under CERCLA given either of the following fact
patterns:
• A corporate officer, employee, shareholder, or director
participated personally in the activity leading to the release
of hazardous substances; or
• A corporate officer, employee, shareholder, or director
exercised direct control over environmental management of
the facility, including waste handling or disposal operations.
Direct liability is also imposed when the actions of an officer,
employee, shareholder, or director of a corporation exceed the
normal limits and accepted behavior, practices, or duties of his
position. Evidence that shows that an individual's activities
exceeded the scope of his normal duties and responsibilities with
respect to site operations, particularly in directing activities that
relate to the disposal of hazardous substances, is crucial to a
finding of direct liability. For example, a treasurer of a corporation
is usually given responsibility for the corporation's financial affairs,
as set forth in the articles of incorporation or the corporate bylaws.
If the treasurer directs corporate employees to drain liquid waste
containing trichloroethylene (TCE) into a disposal trench, he may
be held directly liable as an operator just as the corporation is
liable. Direct liability may also apply to related or affiliated
corporations.
3.6.10.C
Liability of Parent
and Affiliated
Corporations
In United States v. Bestfoods, 524 U.S. 51 (1998), the U.S.
Supreme Court established a standard of direct liability under
CERCLA Section 107(a)(2) for parent corporations as operators of
facilities owned or operated by subsidiary corporations. In
Chapters: Baseline PRP Search
167
-------
PRP Search Manual
September 2009
Bestfoods, the court held that a parent corporation that jointly
operates or exercises control over the environmental operations of
its subsidiary's facility may be held directly liable as an operator of
the facility under CERCLA Section 107(a)(2). The court also stated
that the question is not whether the parent operated the subsidiary,
but whether the parent directly operated the subsidiary's facility.
This may be demonstrated by showing that the parent corporation
managed, directed, or conducted operations specifically related to
the release or disposal of hazardous substances, or made decisions
affecting compliance with environmental regulations at the facility.
The court also stated that a parent's control over a subsidiary,
although not giving rise to direct liability, if extensive enough, may
establish indirect liability. (See the discussion below on piercing
the corporate veil.)
The court in Bestfoods also held that a parent corporation cannot
be held directly liable merely because directors and officers hold
positions in both the parent and the subsidiary corporations. To
impose direct liability in situations with common officers or
directors, it must also be shown that the officers and directors were
acting in a manner (1) advantageous to the parent; and (2)
obviously contrary to the interests of the subsidiary. The direct
liability of a parent corporation arising from the actions of shared
officers or directors may only be imposed after an analysis of the
specific facts of each case using traditional corporate law tests or
principles. As a fundamental part of this analysis, the Court
emphasized the importance of corporate decisions that are not
made in the best interests of the subsidiary.
3.6.10.D
Elements of
Direct Liability
In Bestfoods, the court held that a parent corporation that jointly
operates or exercises control over the environmental operations of
its subsidiary's facility may be held directly liable as an operator of
the facility under CERCLA Section 107(a)(2). The court also stated
Chapters: Baseline PRP Search
168
-------
PRP Search Manual
September 2009
that the question is not whether the parent operated the subsidiary,
but whether the parent directly operated the subsidiary's facility.
This may be demonstrated by showing that the parent corporation
managed, directed, or conducted operations specifically related to
the release or disposal of hazardous substances, or made decisions
affecting compliance with environmental regulations at the facility
(see United States v.
Kayser-Roth Corp.,272 F.3rd 89 (1st Cir. 2001)), Kayser's control
over its subsidiary's environmental operations at the facility
satisfied Bestfoods' requirements for direct operator liability by a
parent corporation ).
In a potential direct liability case, documentation should include
information reflecting specific actions taken and directions and
orders issued by a potentially liable person. Documentation should
also show the extent and nature of the involvement of the director,
parent corporation, shareholder, or employee in the corporation,
paying particular attention to decisions or activities that resulted in
or contributed to the release of hazardous substances. A
comparison of a person's job description and duties with the duties
and activities actually performed as demonstrated by documents
and testimony can be particularly helpful and telling.
Documentation relevant to supporting a direct liability case
includes:
• corporate minutes;
• records of stock;
• corporate checks, signature cards, and bank statements;
• leases, rental agreements, purchase agreements, and all
other documents reflecting transactions between the
corporation and a related or affiliated party;
• list of officers (shared officers?);
Chapters: Baseline PRP Search
169
-------
PRP Search Manual
September 2009
• list of directors (shared directors?);
• shareholders (does one person or entity own a controlling
interest?);
• affiliation schedules;
• corporate financial statements;
• statements of employees or other knowledgeable
individuals;
• position descriptions;
• employment agreements; and
• travel records.
3.6.10.E
Piercing the
Corporate Veil
Piercing the corporate veil is a legal doctrine through which a
corporation's shareholders (and also officers, directors, or
employees), who generally are shielded from liability for the
corporation's activities, can be held personally liable for those
activities. This is in contrast to traditional corporate liability
schemes, in which shareholder liability is limited to the money a
shareholder has invested.
In Bestfoods, the Supreme Court left open the question (federal
courts are divided on this issue) whether state law or federal
common law should apply to veil-piercing claims in actions to
enforce indirect liability under CERCLA.10 Most courts (federal and
state) apply a multi-pronged test to determine if a shareholder is
10 Because the federal courts of appeals are divided on this issue, it is necessary to
determine what the controlling law is for the circuit in which a specific case may be litigated,
because state veil-piercing requirements are generally stricter than federal common law
requirements.
Chapters: Baseline PRP Search
170
-------
PRP Search Manual
September 2009
liable for the wrongdoing of the corporation with which he is
affiliated. Factors often considered by courts include whether:
• control over the corporation by those sought to be held
liable was so complete that the corporation had no separate
mind, will, or existence of its own;
• control over the corporation by those to be held liable was
exercised in such a manner as to commit fraud or an illegal
act against the person seeking to disregard the corporate
entity; or
• injury or unjust loss resulted to the plaintiff from such
control and wrongdoing.
Generally, the doctrine of piercing the corporate veil is invoked to
prevent fraud or achieve equity, particularly in the treatment of
creditors of the corporation. Accordingly, as a prerequisite to
piercing the corporate veil, courts generally require the corporate
entity to demonstrate that it is unable to pay its liabilities or debts,
whether these are Superfund cleanup costs, salaries, debts to
suppliers, or taxes. (See Carter-Jones Lumber Co. v. LTV Steel
Co., 237 F.3d 745 (6th Cir. 2001), where the court found that a
shareholder's mere control of a corporation may be sufficient to
establish indirect liability and joint liability as an arranger.)
In order to pierce the corporate veil successfully, the party seeking
to pierce the veil has the burden of showing why the veil should be
pierced and what injustice, fraud, inequity, or other detriment will
occur if the veil is not pierced (e.g., the taxpayers will be required
to pay for the costs of a CERCLA cleanup instead of the wrongdoers
who are trying to hide behind a corporate shield). The type and
amount of evidence needed to pierce a corporate veil so as to
impose CERCLA liability on corporate officers, directors,
shareholders, or employees is not the same in all federal or state
courts. The law governing the standards to be applied varies;
Chapters: Baseline PRP Search
171
-------
PRP Search Manual
September 2009
sometimes it is state-specific and sometimes it may be federal
common law. It is very important, therefore, to consult ORC and,
when appropriate, DCO as soon as information is obtained
suggesting that piercing the corporate veil might be warranted or
required.
Corporate acts or omissions that support piercing the corporate veil
include:
• failure to observe corporate formalities, including failure to;
• properly incorporate (articles of incorporation) or file
appropriate documents with the state,
• hold meetings of the board of directors,
• hold meetings of stockholders,
• issue or account for stock, and
• approve or ratify major actions of officers,
• failure to treat corporate property as the corporation's
property;
• failure to properly capitalize the corporation;
• commingling of assets (e.g., combining corporate funds
with personal funds); and
• related-party transactions that are not at arm's length or do
not involve reasonably adequate consideration.
The creditor must show that the corporation is a sham by
accumulating as much evidence as possible to support the
indicators listed above. Documentation that may be important
includes:
Chapters: Baseline PRP Search
172
-------
PRP Search Manual
September 2009
• corporate minutes (including evidence that such minutes
were not kept);
• records of stock;
• corporate checks, signature cards, and bank statements;
• leases, rental agreements, purchase agreements, and all
other documents reflecting transactions between the
corporation and a related or affiliated party;
• lists of officers (shared officers?);
• lists of directors (shared directors?);
• shareholders (does one person or entity own a controlling
interest?);
• affiliation schedules;
• corporation financial statements; and
• statements of employees or other knowledgeable
individuals.
3 6 10 F As a 9eneral rule' a Person who purchases some or even all of the
_ assets of a business from another person during the course of an
Successor
arm's-length transaction is not liable for the debts or other
obligations of the seller. There are exceptions to this rule,
however, depending on the facts and circumstances of the sale and
on relevant case law in the judicial circuit in which jurisdiction lies.
Circumstances under which liability may pass to the purchaser of
business assets include:
• The buyer expressly or impliedly agrees to assume the
seller's liabilities. Because EPA was not a party to this
transaction or contract, it is essential to seek advice from
regional counsel to determine whether EPA may
Chapters: Baseline PRP Search
173
-------
PRP Search Manual
September 2009
independently move against the buyer to enforce such an
agreement or if it is necessary to proceed against the seller
to enforce this portion of the contract.
• The transaction (asset sale) is entered into fraudulently in
order to escape liability.
• The transaction amounts to a de facto merger or
consolidation. As discussed in subsection 3.6.7 of this
manual, when there is a formal merger between two or
more corporations,11 liabilities of the merging corporations
are automatically assumed by the surviving corporation. A
de facto merger describes an asset purchase agreement
that, for all practical purposes, amounts to a merger. Most
states have standards that define a de facto merger. These
standards typically include the following elements:
• there is a common relationship between the buyer and
seller;
• the buyer acquires essentially all the assets of the seller;
and
• the seller is dissolved soon after the sale.
• The buyer is a mere or "substantial" continuation of the
seller. Factors that some courts have relied upon in
identifying "mere continuation" asset purchases include:
• retention of the same employees;
• retention of the same supervisory personnel;
• use of the same production facilities in the same
location;
• production of the same product;
Whether a merger has occurred can often be determined by reviewing 10-Ks
and other federal and state filings.
Chapters: Baseline PRP Search
174
-------
PRP Search Manual
September 2009
• use of the same name;
• continuity of assets (i.e., the buyer uses the same
machinery, sells to the same customers, buys from the
same suppliers);
• continuity of general business operations;
• holding out as a successor to the former enterprise; and
• holding out as identical to the former enterprise (e.g.,
using the same name, letterhead, business cards).
Documentation that may help determine whether the standards for
successor liability enumerated above have been satisfied includes:
• the asset purchase agreement with all attachments,
schedules, or exhibits;
• corporate resolutions;
• employment contracts;
• customer lists;
• supplier lists;
• invoices and stationery;
• advertising;
• bulk transfer notices (notices mailed to creditors of the seller
and published in newspapers of general circulation in the
area where the sale occurred);
• business escrow documents reflecting the asset sale; and
• property appraisals.
Chapters: Baseline PRP Search
175
-------
PRP Search Manual
September 2009
Key points to remember when reviewing and evaluating asset
purchase agreements include:
• The person selling the business assets is normally referred
to as a predecessor. The court may require that EPA first
look to the remaining assets of the predecessor to satisfy a
liability before EPA is allowed to look to the assets of the
successor. Accordingly, the PRP search must identify the
current operational status, viability, and ability to pay of the
predecessor. Some states require, as a precondition to
imposing successor liability, a demonstration that the
predecessor is insolvent or defunct.
• Because EPA is not normally a party to indemnification
agreements or an indemnification clause within asset
purchase agreements, EPA generally is not bound by the
terms and conditions of indemnification agreements.
Normally, only the parties to an indemnification agreement
can enforce its terms. Accordingly, providing EPA a copy of
an indemnification agreement may not relieve a party of
CERCLA liability.
• In attempting to evaluate the potential successor liability of
a purchaser, the objective is to gather evidence of as many
of the liability factors discussed above as possible as no one
of them is decisive. (If the issue went to trial, the court
would determine the outcome by the "preponderance of
evidence."
• Successor liability is a continually evolving field of law, and
federal courts are divided on whether state law or federal
common law should apply to determine successor liability
under CERCLA. (Sometimes it is beneficial to see if evidence
exists that meets both criteria.) Consequently, it is critical
to consult with ORC and DCO when making a liability
determination based on successor liability.
Chapters: Baseline PRP Search
176
-------
PRP Search Manual
September 2009
3.6.11
Financial
Research
Effective financial research starts with a knowledge of the
regulatory requirements and record-keeping policies for the location
where the transaction took place. On-line databases and credit
reporting services are very useful aids to understanding prior
events, but the information obtained using these services may not
be sufficiently reliable to be used as evidence. This is especially
true when researching the sale and acquisition of companies. The
various sources of financial information about businesses are
discussed below.
3.6.11.A
Corporation and
Partnership
Filings Required
by States
Required business filings differ from state to state, both in terms of
what information must be provided and where documents must be
filed. In many states, corporations and limited partnerships are
required to file documents with the secretary of state in order to
defend any action in a state court. Accordingly, almost all
corporations and partnerships have filed the requisite documents.
• For corporations, required filings include the corporate
registration, which contains a list of officers and directors,
articles of incorporation, and all amendments of the articles.
• For partnerships, required filings include the partnership
agreement, which contains a list of all partners and their
interests in the partnership, and may include a list of
partnership property.
• Documents evidencing corporate name changes and
mergers are also filed with state agencies.
When reviewing corporate filings, make sure that the available
information is consistent with the span of time of potential liability.
Some state offices archive older records. In those offices, it is
typically necessary to make a specific request to review older
filings.
Chapters: Baseline PRP Search
177
-------
PRP Search Manual
September 2009
3.6.11.B
Court Filings
Federal and state courts are often good sources of information that
is useful for establishing corporate liability. Sometimes financial
issues relevant to a CERCLA investigation have been addressed
under a labor grievance or a property dispute. A review of prior
legal actions and an examination of the evidence introduced in
those actions can be helpful.
3.6.11.C
Federal Sources
The SEC has large amounts of information relevant to purchases,
sales, mergers, and divestitures of publicly held companies. The
more current information is available on line. In addition, publicly
available paper documents describe activities as far back as the
1930s. Other federal agencies may have information such as
contracts and contract amendments that may help establish
liability.
3.6.11.D
Corporate
Directories
Summary
Corporate directories provide summaries of useful financial
information for a variety of businesses. Older editions of these
directories often are helpful in tracking name changes and the
acquisition and sale of plants. These directories can also be used to
establish the state of incorporation, as well as the fate of inactive,
dissolved, or defunct corporations, or corporations that have
merged, been acquired, or have otherwise disappeared. Useful
corporate directories include the Dun & Bradstreet Million Dollar
Directories, Directory of Obsolete Securities, Standard & Poor's
Industrial Manuals, Moody's Manual of Investments, Moody's
Industrial Manual, and Walker's Manual of Western Corporations.
Corporate directories can be found in the business section of most
public libraries and are updated at least annually. In addition,
industrial directories are compiled annually for most states, and
larger libraries may maintain a historical collection of such
directories, particularly for their state.
Chapters: Baseline PRP Search
178
-------
PRP Search Manual
September 2009
3.6.11.E
Credit Reporting
and On-Line
Services
On-line services often provide corporate information for a limited
number of years or provide information that is not current. Check
with the data provider to verify the period of time that the data
cover and whether full data or only limited portions are being
provided. These systems are very useful for gathering information
quickly, but additional effort is often needed to fully understand or
verify the information. Appendix _ provides a list of on-line
resources that may be useful to a PRP search team.
3.7
Develop Site
Preparing a site summary prior to preparation of the baseline PRP
search report serves two purposes:
• It focuses the PRP search team on any information gaps or
incomplete baseline tasks prior to preparation of the
baseline PRP search report. If information gaps or
incomplete tasks are identified, the PRP search team can
take steps either to complete or re-do tasks or to defer
decisions to a later date when more complete information is
available.
• It consolidates and facilitates sharing of information. A site
summary assembles pertinent, non-confidential site
chronology and property history information in one place.
This summary can be shared with PRPs if it does not contain
confidential or privileged information. The summary can
also be used by Agency and state decision makers as a
quick reference to assist in making decisions.
At this point in the PRP search process, site documents have been
organized consistent with the information management provisions
of the PRP search plan and reviewed for pertinent site data,
information that links a party to the site, sufficiency of evidence
establishing the liability of the PRP, financial viability, and potential
leads about other parties involved with the site. This review should
Chapters: Baseline PRP Search
179
-------
PRP Search Manual
September 2009
result in a history of activities and parties involved in the treatment
or disposal of hazardous substances at the site, and a compilation
of other factual site information.
Site History
Factual background information about the site as well as a history
of the facility should be presented here. This history of the facility
as a hazardous substance site should begin with the first industrial
use or disposal at the site and continue through to current
activities. It should identify in detail the kinds of activities
conducted at the facility and the owners/operators during each
period, including principal individuals. It should also identify by
reference any data on substances at the site (e.g., in drums,
containers) and, to the extent that the information is available,
include a discussion of the environmental risks that the site
presents. This will allow enforcement efforts to focus more closely
on site activities that are linked to EPA response actions.
Factual Site Information
Factual site information that should be contained in a site summary
includes:
• site location and size;
• adjoining properties;
• brief description of site history to include;
• site owner/operator(s),
• when operations began,
• type of operations at the site, and
• types of substances manufactured, treated, stored, or
disposed of,
Chapters: Baseline PRP Search
180
-------
PRP Search Manual
September 2009
• permits applied for or granted; and
• warnings or notices of violations issued by regulatory
agencies.
All information contained in this subsection should be based on
factual records, and each piece of factual information cited should
reference where the source record can be found. Following the
brief description, a detailed description of site history should be
presented in chronological order.
The owner/operator discussion should identify the period of each
person's ownership or operation of the facility, and describe what
hazardous substances were disposed of and by whom during each
such period. The owner/operator section should also include a title
abstract or narrative provided by the title search company or title
researcher. To aid the reader in reviewing title search results, a
title tree or graphs depicting the chain of title may be useful. Any
language in the title restricting the use of the property due to
wastes deposited at the site or past industrial practices should be
noted.
3.8
Compile
Waste-In
Information
In addition to developing evidence for CERCLA Section 106 and 107
actions, a PRP search should develop waste-in information for
waste-in lists and volumetric rankings wherever practicable. A
waste-in list shows the volume and nature of the substances
contributed by each PRP at a facility; a volumetric ranking is a
ranking by volume of the hazardous substances at a facility.
If EPA invokes special notice procedures under CERCLA Section
122(e)(l), the Agency is required to provide PRPs, to the extent
that such information is available, with waste-in lists, volumetric
rankings, and a list of PRP names and addresses. Aside from the
statutory provisions for development and release of such
Chapters: Baseline PRP Search
181
-------
PRP Search Manual
September 2009
information, experience has demonstrated that waste-in lists and
volumetric rankings are a valuable tool in bringing about
settlements at Superfund sites. When presented with an estimate
of the nature and volume of hazardous substances contributed to a
site, PRPs are better able to coalesce into committees and
determine allocations among themselves, and often are more
willing to participate in settlement negotiations with EPA. While not
every site is a logical candidate for a waste-in list or volumetric
ranking, development of such lists and rankings is generally
beneficial whenever practicable.
In the past, owner/operator transactional records were the only
waste-in information developed during the baseline phase of the
PRP search. The follow-up phase focused on generator and
transporter liability and volumetric rankings. Since current Agency
policy calls for early settlement with small-volume waste
contributors, however, generator-specific waste-in information
should be developed during the baseline phase so that de minimis
and "de micromis" determinations can be made as soon as possible.
(See "Final Guidance on Preparing Waste-In Lists and Volumetric
Rankings for Release to Potentially Responsible Parties (PRPs)
Under CERCLA" (February 22, 1991) for detailed guidance on
waste-in lists and volumetric rankings, and "Streamlined Approach
for Settlements With De Minimis Waste Contributors Under CERCLA
Section 122(g)(l)(A)" (July 30, 1993) for detailed guidance on the
use of waste-in information in settlements with small-volume
contributors, Chapter 3 References, p. 201.)
3.8.1
Transactional
Databases
Sections 3.2 and 3.3 of this manual discuss the value of databases
for tracking correspondence and information requests. Similarly,
large amounts of information on generator and transporter waste
types and volume gathered from previous baseline tasks can best
be managed with a transactional database. Transactional
Chapters: Baseline PRP Search
182
-------
PRP Search Manual
September 2009
databases are used at recycling sites, landfills, and other such sites
with large numbers of generators. Information contained in
transactional databases is generally derived from evidence
summary sheets and waste stream analyses. Waste stream
analyses are discussed in Section 4.7 of this manual.
Evidence Summary Sheets - Generators
A separate evidence summary sheet generally is prepared for each
shipment or group of shipments of a hazardous substance sent by a
generator to a site for treatment or disposal. The evidence
summary sheet for the generator should contain the following
information pertaining to the hazardous substance(s) at the site:
• relationship of substances to the threat;
• volume;
• identification by name of the hazardous substances;
• EPA's determination of any RCRA hazardous wastes codes;
and
• substances found at the site that the generator is known to
produce.
Information on hazardous substances presented in the evidence
summary sheets should be referenced to supporting documents in
the correspondence tracking databases, if developed, or in the site
file database. This information should be verified during the RI at
the site.
Evidence Summary Sheets - Transporters
Evidence summary sheets should be kept for all transporters who
accepted hazardous substances for transport and selected the
treatment or disposal facility to which the shipment was sent. It is
useful to identify all transporters, not just those who selected the
Chapters: Baseline PRP Search
183
-------
PRP Search Manual
September 2009
site, since they can identify the generators. Although the
transporters may not have selected the site, and consequently may
not be liable, the transporter's customer may be liable as a
generator. By identifying all transporter volume, the database can
ensure that each transporter volume is linked to a generator,
thereby making sure all generators are identified. A transporter
evidence summary sheet should include the volume and nature of
the hazardous substances and describe any evidence that the
transporter selected the treatment or disposal site. Again, all the
information on the evidence summary sheets should be referenced
to supporting documents in the correspondence tracking and site
file databases
As with the site file, correspondence, and information request
tracking databases, the information contained in the transactional
database should be screened for relevance to the PRP search. If a
contractor is responsible for developing the database, the
contractor must work with EPA to determine the document criteria.
The QA/QC process should screen for duplicative documents and
either eliminate them or enter the documents into the database as
duplicates. The QA/QC process should also be applied to document
codes and field definitions, which may include document location,
document number, document type, originator, author(s),
origination date, title, subject(s) or key words, addressee, number
of pages, document condition, method of obtaining the document
sources (e.g., PRP, EPA), recipients, and attachments.
3.8.2
Waste-In Lists
and Volumetric
Rankings
At some point during the baseline phase of the PRP search, the PRP
search team should assess the quality and completeness of the
waste-in information and determine whether waste-in lists and
volumetric rankings will be developed, and by whom. CERCLA
gives EPA considerable discretion whether to develop a waste-in list
or volumetric ranking. Whether the records at a site constitute
Chapters: Baseline PRP Search
184
-------
PRP Search Manual
September 2009
sufficient evidence to produce waste-in lists and volumetric
rankings is a highly site-specific determination. Regions should
develop an approach for assessing waste-in information that is
internally consistent and based on a common set of considerations.
Where waste-in lists and volumetric rankings are developed by EPA,
the following three rules should be followed when making
assumptions about waste-in information:
• Assumptions should be defensible. Established
conversion standards (converting to common units of
measurement such as gallons or cubic yards) should be used
and assumptions should be based on patterns established in
the data in order to avoid charges that an assumption is
arbitrary or capricious.
• State assumptions openly. When interpreting illegible
numbers on a manifest, or assuming a disposal destination
from an unclear hauling ticket, it is preferable to let PRPs
know where EPA made assumptions and to identify where
ambiguity still exists. Clearly stated assumptions contribute
to the credibility of a waste-in list and give PRPs the
opportunity to make their own corrections. Assumptions
should be reviewed by the case attorney to ensure that they
are legally supportable.
• Be consistent. PRPs involved at more than one site within
a region will be aware of any discrepancies in the kinds of
assumptions made for waste-in lists at these sites. Disputes
over inconsistent assumptions only slow down the
settlement process.
Whom To Include on Waste-in Lists
Generators are usually included on a waste-in list when evidence
indicates they contributed hazardous substances to a Superfund
site. Transporters should be included on waste-in lists when the
Chapters: Baseline PRP Search
185
-------
PRP Search Manual
September 2009
transporter, not the generator, determined where the hazardous
substances were to be taken for treatment or disposal. As a policy
matter, EPA implements CERCLA Sections 107(a), 101(20)(B), and
101(20)(C) by not including transporters on a waste-in list if they
did not select the site or facility to which hazardous substances
were delivered. Thus, while all transporters should be sent 104(e)
information request letters, only those transporters who appear to
have selected the site for hazardous substance disposal should be
sent notice letters.
Format and Content of Waste-in Information
Waste-in Lists
Waste-in lists contain the volume and nature of substances
contributed by each PRP identified at a facility. At a minimum, the
lists should contain columns for the names and addresses of PRPs
as well as the types and volumes of hazardous substances.
Although EPA is under no statutory obligation to release information
beyond the waste-in list, regions should consider releasing
supplemental waste-in list information unless there are
countervailing legal, policy, or strategy reasons not to do so.
Supplemental waste-in information can include, but is not limited
to:
• dates of shipments;
• names of transporters;
• types of evidence from which the waste-in lists were
derived; and
• comments to clarify assumptions, ambiguities, and
double-counts.
When most PRPs at a site are generators, waste-in lists should be
organized by generator, with a column provided for listing the
transporter of each shipment in order to link the generator to the
site. When there are multiple transporter PRPs, it may be advisable
to prepare separate waste-in lists for generators and transporters.
Chapters: Baseline PRP Search
186
-------
PRP Search Manual
September 2009
Volumetric Rankings of Substances at a Facility
To the extent such information is available, CERCLA requires that
special notice recipients be provided with a volumetric ranking of
hazardous substances at the facility. This ranking lists hazardous
substances and their respective volumes in descending volumetric
order. It can be developed from waste-in list information.
Volumetric Rankings of PRPs
Volumetric PRP rankings (sometimes referred to as generator
rankings) rank PRPs in descending order by volume and express
their contributions as a percentage of the total volume of hazardous
substances at the facility. Although CERCLA Section 122(e)(l)(B)
requires EPA to provide special notice recipients with "the volume
and nature of substances contributed by each potentially
responsible party identified at the facility," to the extent such
information is available, CERCLA does not require that this
information be aggregated into a volumetric PRP ranking. A
number of regions release information in this format, however,
because they feel it provides a logical starting point for
negotiations. Regions should bear in mind and convey to the PRPs
that waste-in information provided with special notice is intended
as an estimate of individual PRP contributions, and is neither
definitive nor binding in any way. It is intended solely as
information to facilitate settlement agreements between PRPs and
the Agency.
When there is insufficient information to convert volumes into a
single unit of measurement, regions may provide a volumetric
ranking using raw data from records in an unconverted form. PRPs
can then choose to clarify ambiguities concerning volumes or
substances in order to produce a better list upon which to
negotiate.
Chapters: Baseline PRP Search
187
-------
PRP Search Manual
September 2009
Special Considerations
Commonly Contributed Volumes
When hazardous substances are contributed both by a generator
and a transporter that designated the treatment or disposal site,
regions are advised to:
• attribute the volumes to both parties when compiling
waste-in information;
• not try to apportion responsibility for a hazardous substance
shipment generated by one PRP and transported by another
among the two PRPs in a volumetric ranking or waste-in list;
and
• let the PRPs, or the independent neutral, allocate commonly
contributed volumes during the site allocation process.
Because this approach may result in double-counting shipments,
regions should provide PRPs with an explanation of why shipments
have been double-counted and clearly identify, by means of a
comment field or other notation, which shipment volumes have
been attributed to both generators and transporters.
Municipal Landfills
Like mining and area-wide ground water sites, landfills are
notoriously difficult sites at which to compile accurate waste-in
information, both because of poor recordkeeping practices and
because of the mixture of different wastes disposed of at landfills.
In many instances, most of the wastes in a municipal landfill are
not hazardous substances and do not belong in a waste-in list or
volumetric ranking.
Non-exempt generators and transporters of municipal solid waste
or sewage sludge generally will not be notified as PRPs unless
evidence shows that:
Chapters: Baseline PRP Search
188
-------
PRP Search Manual
September 2009
• the waste or sludge contains a hazardous substance; and
• the hazardous substance came from a commercial,
industrial, or institutional process or activity.
Generators and transporters of commercial trash, however, are
generally notified as PRPs unless they can demonstrate that:
• none of the hazardous substances contained in the trash are
derived from a commercial, institutional, or industrial
process or activity; and
• the amount and toxicity of the hazardous substances do not
exceed the amount normally found in common household
trash.
Removal Sites
Some removal sites are not good candidates for compiling waste-in
information because they require cleanup action sooner than the
time it would take to produce waste-in lists. Even after the work
has been started, however, there may be a need to prepare the
waste-in list, especially if cost recovery litigation is likely. Even if a
waste-in list cannot be prepared because of time constraints, it is
important to notice as many parties as possible to limit due process
issues that may be raised by PRPs. At non-time-critical removal
sites, the creation of waste-in lists and volumetric rankings should
be seriously considered as there is more time available to prepare
them at these sites than at other removal sites. When adequate
transaction documentation exists and settlement seems possible,
regions should prepare waste-in lists and rankings as described in
CERCLA Section 122(e)(l) for release to PRPs. Because removals
may proceed at an accelerated rate, it is important to start the
waste-in preparation early, spend less time fine-tuning lists and
rankings, and release the information to PRPs as early as possible.
Chapters: Baseline PRP Search
189
-------
PRP Search Manual
September 2009
For more general information on preparing waste-in lists and
volumetric rankings; specific considerations for solvent recycling
and transshipment sites, lead battery sites, and mining sites; and
releasing waste-in information, consult "Final Guidance on
Preparing Waste-In Lists and Volumetric Rankings for Release to
Potentially Responsible Parties (PRPs) Under CERCLA" (February 22,
1991). (See Chapter 3 References, p. 201.)
3.9
Classify PRPs
The objective of this task is to classify identified parties into the
broad categories of owner, operator, transporter, or generator, and
then more specifically into other categories, such as de minimis,
"de micromis", insolvent or defunct, or orphan.
3.9.1
Identify PRPs
Throughout the PRP search process, information should be analyzed
with the following questions in mind:
• Is the information sufficient to establish PRP liability?
• What volume of waste was disposed of or treated at the
site?
• Can the PRP(s) contribute toward cleanup efforts?
• Are there additional leads which should be pursued?
• Have past and present owners/operators been identified?
• Does the information presented resolve liability inquiries?
• Is the waste-in information complete?
• Are recommended follow-up activities documented?
The PRP search team should routinely perform such analyses in
order to collectively identify any weaknesses in the existing PRP
search efforts, identify any next steps, and determine the timing of
these steps.
Chapters: Baseline PRP Search
190
-------
PRP Search Manual
September 2009
These analyses are particularly important to ensure effective
collection of:
• information about owner/operator liability and financial
viability;
• updated PRP names and addresses;
• information about the volume and nature of substances sent
to the site;
• information on the contributing parties;
• information that helps determine whether a person should
receive a notice letter; and
• evidence of each PRP's liability.
A list of parties identified as PRPs should be developed with
complete names, addresses, and contacts. This list should contain:
• names of contact persons;
• addresses;
• telephone numbers, if available;
• name of legal contact, if the parties have representation;
• date of list preparation; and
• contact person for all correspondence.
It is very important that the addresses of PRPs or their contacts be
verified for accuracy. Verification prior to preparation of the
baseline PRP search report reduces the need for additional or
subsequent re-mailings of general or special notice letters and
helps ensure that PRPs receive adequate notice and due process
rights. Failure to satisfy these procedural requirements may lead
Chapters: Baseline PRP Search
191
-------
PRP Search Manual
September 2009
to significant problems later in the Superfund process. PRP lists
can be included as an appendix to the site summary section of the
baseline PRP search report and are considered non-confidential.
PRP search reports are more fully discussed in Section 3.10 of this
manual.
3.9.2
Define PRP
Category
PRP classification initially involves grouping PRPs into one of the
following CERCLA categories:
• owners (past or present);
• operators (past or present);
• generators; or
• transporters.
Further classification of PRPs into sub-categories of the above
categories may be appropriate depending on site-specific needs and
the nature and volume of information available. The following are
examples of sub-categories:
• ability to pay (ATP) parties;
• de minimis generators;
• "de micromis" generators;
• municipal solid waste (MSW) generators;
• residential homeowners;
• insolvent or defunct parties;12 and
12
During the baseline phase of the PRP search, it may not be possible to
conclusively determine if a party is insolvent or defunct due to the time-consuming nature
of this determination. Preliminary determinations of a party's status as insolvent or defunct
should be attempted during this phase, however, with follow-up information requests or
other information gathering techniques used during the follow-up phase to make the final
determination. Insolvent and defunct determinations are discussed in Section 4.6 of this
manual.
Chapters: Baseline PRP Search
192
-------
PRP Search Manual
September 2009
• parties the quantity of whose waste contribution is
unknown.
It may be beneficial to classify non-PRPs into such categories as:
• status unknown;
• residential homeowner;
• knowledgeable witness;
• adjacent landowner.
If corporate information is available, the list should include the date
of incorporation, whether corporate PRPs currently exist, the fate of
inactive companies, current mailing addresses (including facility,
headquarters, and registered agent), and parent or successor
companies. Information about individuals and unincorporated
companies should include their current locations, their associations
with other PRPs, and their relationships to the site.
In most instances, PRP classifications are pre-decisional and subject
to review during the PRP search, and consequently are considered
confidential. Nonetheless, they can help the PRP search team and
other Agency staff in corresponding with PRPs, conducting financial
assessments, directing follow-up activities, and many other tasks.
3.10
Prepare
Baseline PRP
Search Report
The baseline PRP search report is a preliminary report that contains
available information on the owners/operators, generators, and
transporters. This report provides a chronological summary of site
history and the facts pertaining to PRPs' liability. Information
supporting conclusions within the report is generally included in
appendices. The baseline report is generally followed by the
Chapters: Baseline PRP Search
193
-------
PRP Search Manual
September 2009
interim-final PRP search report except in simple owner/operator
situations where the baseline report will usually suffice. (See
Section 4.8 of this manual for further discussion of the interim-final
PRP search report.)
3.10.1
Report Format
and Content
Prompted by the Agency's emphasis on earlier information
exchange with PRPs and other stakeholders, more efficient
information gathering, and concern over whether PRP search
reports were subject to discovery production demands and FOIA
requests, several EPA regions have been using a revised format for
the report. Traditionally, the PRP search report format consisted of
the following sections: introduction, site history, PRP identification,
and conclusions and recommendations. The problems that resulted
from this format included:
• Time needed to prepare the entire baseline report delayed
receipt of factual site summary information that could be
used for early information sharing with other parties.
• Disputes over releasability of the PRP search report were
common.
• Reports could not be updated easily to reflect development
of additional or new information.
• Interpretations and conclusions were not clearly
distinguished from established fact.
A revised PRP search report format (for both the baseline and
interim-final reports) consists of two sections treated as separate
deliverables, namely:
• Site chronology and property history; and
• PRP synopsis.
Chapters: Baseline PRP Search
194
-------
PRP Search Manual
September 2009
3.10.1.A
Deliverable 1:
Site Chronology
and Property
History
The known facts about the site and its PRPs are summarized
without interpretation in the first section of the baseline report.
The site chronology and property history and back-up information
are included in supplemental appendices. This section contains no
conclusions, interpretations, or inferences regarding liability. A
separate site chronology and property history:
• highlights the source of information being used to establish
facts;
• helps identify periods of time for which there is little or no
conflicting information;
• facilitates updates during a phased PRP search; and
• may be released to PRPs and other members of the public.
Suggested contents and format of the site chronology and property
history section of the PRP search report are shown in Exhibit 1.
3.10.1.B
Deliverable 2:
PRP Synopsis
The remainder of the baseline report is contained in the PRP
synopsis section. This section of the PRP search report should be
stamped "Privileged Work Product — Deliberative/Attorney Work
Product - - Do Not Release Under FOIA." The PRP synopsis should
include:
• PRPs identified during the research;
• PRP names, addresses, and telephone numbers;
• the basis for inclusion of each PRP;
• PRPs with potential defenses to or exemptions from liability
(see subsections 1.2.5 and 1.2.6 of this manual);
• major reference sources;
Chapters: Baseline PRP Search
195
-------
PRP Search Manual
September 2009
• the identities of other parties associated with the site and
the nature of the association;
• conclusions and recommendations; and
• appendices.
A suggested outline for the PRP synopsis section of the PRP search
report is presented in Exhibit 1.
3.10.2
Report Review
and Distribution
A site chronology and property history created as an interim
deliverable segregated from the PRP synopsis section of the
baseline PRP search report allows EPA to review the information
contained in it earlier in the PRP search process than if combined in
the traditional report format. It is suggested that the PRP search
manager and case attorney review the interim deliverable
simultaneously to save more time in the internal review and
approval process. Once approved, this information can be shared
with interested stakeholders and placed in the site repository.
Chapters: Baseline PRP Search
196
-------
PRP Search Manual
September 2009
EXHIBIT 1: SUGGESTED PRP
SEARCH REPORT FORMAT
DELIVERABLE 1: SITE CHRONOLOGY AND PROPERTY HISTORY
Introduction
• project background - a brief "snapshot" of the site
• project approach - who performed the research and under whose direction
• list of contacts - public agencies that were contacted to collect information
• overview of report - the basic layout of the report.
DISCUSSION OF THE SITE
Site History - factual background information about the site,
including:
site location and size
adjoining properties
brief description of site history, including:
site owners/operators
when operations began
type of operations
types of substances manufactured, treated, stored, or disposed of
whether the substances found on site are in drums, containers, etc.
permits applied for or granted
warnings or notices of violations issued by regulatory agencies.
Property History:
• summarizes the review of all title documents
• documents ownership of the property for the period of time relevant to the
site
• presents a title tree or chain of title (including corporate name changes of
property owners, conveyances, quitclaims, deeds, and liens)
• contains corresponding references to the relevant documentation
• includes brief summaries of the environmental threats posed by site activities
and the potential cleanup activities.
Chapters: Baseline PRP Search
197
-------
PRP Search Manual
September 2009
EXHIBIT 1: SUGGESTED PRP
SEARCH REPORT FORMAT (cont'd)
DELIVERABLE 2: PRP SYNOPSIS
Introduction
Discussion of the Site - Refer the reader to the first section of the report.
PRPs - Cite statutory provisions and relevant policy and guidance as basis for
inclusion as PRPs.
PRPs - Owners/Operators
PRP name
status (current owner, successor, etc.)
current address
headquarters address, if applicable
registered agent
president
current status
corporate information
narrative description of basis for inclusion
references
nature and volume of hazardous substances associated with PRP
reference to appendices or attachments for additional information, rankings,
or groupings
• financial information, ability to pay issues
PRPs - Generators (same information as for owner/operators)
Provide information in both a PRP summary and a volumetric ranking list format,
to the extent this information is available. Depending on the complexity of the
site, the region may develop a list by PRP of information that describes the
chemical nature of the substances and links shipment/volumetric conclusions to
particular transporters and documents. In these instances, there should also be
an assessment of whether the wastes were RCRA hazardous wastes for ARAR
purposes.
PRPs - Transporters (same information as for owner/operators)
Provide information in both a PRP summary and a volumetric format similar to
the generator lists as described above.
Chapters: Baseline PRP Search
198
-------
PRP Search Manual
September 2009
EXHIBIT 1: SUGGESTED PRP
SEARCH REPORT FORMAT (cont'd)
Special PRP Information
Include any special information that may have a bearing on whether a party is
ultimately designated by EPA as a PRP. Examples include entities that have been or
are in bankruptcy, individuals who are deceased and a description of the status of
their estates, successor corporations, parent-subsidiary relationships, PRPs with
potential defenses to or exemptions from liability (see subsections 1.2.5 and 1.2.6 of
this manual), and defunct/insolvent PRPs.
Special Site Information
Highlight any unique or complex features associated with sites such as municipal
landfills, area-wide ground water or stream contamination sites, sites where the
source of contamination is not clear, and sites from which wastes were sent to
satellite facilities.
Other Parties Associated with the Site
Identify parties who may possess additional information about the site (e.g.,
witnesses, previous employees not yet located) and parties about whom information
is currently not available to characterize them as a PRP. Present all relevant
information here, such as names, addresses, telephone numbers, basis for inclusion
of this party in this subsection, and references.
Conclusions and Recommendations
Summarize the identified PRPs and parties associated with the site. Include
recommendations for additional actions and an estimate of the time and resources
needed to perform those actions. This type of information will allow the decision
makers to make an informed decision when balancing the need for information with
available resources and timing constraints.
Appendices
Include interview summaries, evidence sheets, potential questions for additional
information request letters, and other documents referenced throughout the
report.
Chapters: Baseline PRP Search
199
-------
PRP Search Manual
September 2009
Name
Checklist of PRP Search Tasks
PRP Search Enhancement Team
Members/Contacts
Information Requests - 104(e)
Question Categories
Potentially Responsible Party
Internet Information Sources
(PRPIIS)
Superfund Enforcement
Directory
Transmittal of Sample
Documents for More Effective
Communication in CERCLA
Section 104(e)(2) Information
Requests (June 30, 1995)
False Statements Act
Federal Debt Collection
Procedures Act
Releasing Information to
Potentially Responsible Parties
at CERCLA Sites (March 1,
1990)
EPA Regulations Governing
Business Confidentiality Claims
Federal Rules of
Evidence 801-817
Federal Perjury Statute
Performance Work Statement
for Enforcement Support
Services
CHAPTER 3
Section
3.0
3.2.1
3.3
3.3.1
3.3.1
3.3.1
3.3.1
3.3.1
3.3.1
3.3.3
3.4.1
3.4.2
3.5.1
REFERENCES
Location
Appendix B
Appendix E
http://www.epa.gov/compliance/resources7p
ublications/cleanup/superfund/104e/index.ht
ml
Appendix F
http://www.epa.gov/compliance/cleanup/
superfund/sfed/index.html
http://www.epa.gOv/compliance/resources/p
olicies/cleanup/superfund/sampledoc-cercla-
mem.pdf
http://www4.law.cornell.edu/uscode/18/100
l.html
http://www.uscode.house.gov/download/pls/
28C176.txt
http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
release-prp-rpt.pdf
40 C.F.R. § 2.201-2.215
http://www.access.gpo.gov/nara/cfr/
waisidx_01/40cfr2_0 l.html
http://www.law.cornell.edu/rules/fre/rules.ht
m
18 U.S.C. § 1621
http://www.law.cornell.edu/uscode/html/usc
odel8/usc_sec_18_00001621— -OOO-.html
Appendix A
Chapters: Baseline PRP Search
200
-------
PRP Search Manual
September 2009
CHAPTER 3 REFERENCES
Name Section Location
Final Guidance on Preparing 3.8 http://www.epa.gov/compliance/
Waste-In Lists and Volumetric resources/policies/cleanup/superfund/guide-
Rankings for Release to volumet-rpt.pdf
Potentially Responsible Parties
(PRPs) Under CERCLA
(February 22, 1991)
Streamlined Approach for 3.8 http://www.epa.gov/compliance/
Settlements With De Minimis resources/policies/cleanup/superfund/app-
Waste Contributors Under deminimis-rpt.pdf
CERCLA Section 122(g)(l)(A)
(July 30, 1993)
Chapters: Baseline PRP Search
201
-------
PRP Search Manual
September 2009
EPA SUPSRFUKC StTE
.
«MKA WOOD
4.0 Follow-up PRP Search 202
4.1 Issue Follow-up Information Request Letters 203
4.2 Compel Compliance with CERCLA Section 104(e) 205
4.3 Issue Administrative Subpoenas 208
4.4 Perpetuate Testimony Using Rule 27 211
4.5 Perform Ability To Pay Determinations 213
4.5.1 General Policy on Superfund Ability To Pay Determinations 214
4.5.2 ATP Information Sources 216
4.5.3 Performing Property Appraisals 222
4.6 Perform Insolvent and Defunct Determinations 225
4.6.1 Definition 225
4.6.2 Insolvent and Defunct Determinations 226
4.7 Perform Waste Stream Analyses 231
4.7.1 Industrial Surveys 231
4.7.2 Process Chemistry Analysis 231
4.7.3 Waste Stream Inventory 232
4.7.4 Mine Sites 232
4.8 Interim-Final Report Preparation and Review 233
4.8.1 Interim-Final Report Followup 234
4.9 Pursue Litigation and Cost Recovery 234
References[[[^^
-------
PRP Search Manual
September 2009
4.0 Follow-up PRP Search
The PRP search team should analyze the information collected
during the initial phase of the PRP search to determine whether:
• all reasonable leads on PRPs were pursued;
• PRP contributions to the site have been determined; and
• each PRP's liability and financial viability have been
established.
A review of the information also should consider the reasons for
pursuing or not pursuing leads. Once the review is complete, the
PRP search team should decide whether additional follow-up
activities are necessary.
Follow-up tasks are often needed to complete the PRP search,
although all follow-up tasks may not be necessary for each search.
For instance, follow-up activities may be conducted for sites where
the PRP search was considered complete but new information
requires performance of additional search tasks. The PRP search
team must exercise professional judgment to determine which, if
any, follow-up tasks are appropriate, beneficial, and necessary for a
particular site.
Follow-up tasks can help insure a thorough, high-quality PRP
search. These tasks vary from site to site, but generally fall into
the following categories:
• information sources, including information request letters,
administrative subpoenas, and Rule 27 testimony. (See the
discussion of Rule 27 in Section 4.4 of this manual.);
• waste stream analysis, including industrial surveys, process
chemistry analysis, and waste stream inventory;
Chapter 4: Follow-up PRP Search
202
-------
PRP Search Manual
September 2009
miscellaneous tasks, including financial assessments;
corporate research; compelling compliance with CERCLA
Section 104(e) information requests; and orphan share,
insolvent, and defunct determinations;
insurance analysis; and
other expert analysis, such as independent cost allocation
analysis or mining experts for waste stream analysis.
4.1
Issue Follow-up
Information
Request Letters
As stated in subsection 3.3.5 of this manual, the PRP search team
may issue follow-up requests during the baseline phase.
Alternatively, the team may elect to defer such requests until the
follow-up phase. There are many reasons why the team might
want to defer issuance of such requests (e.g., time and resource
considerations, site-specific circumstances).
Follow-up request letters may be necessary if a PRP complied only
partially with the initial information request or if the team needs to
clarify the response. In addition, the team may need to issue such
letters in cases where PRPs have "nominated" other parties,
claiming that they are also liable. Finally, follow-up letters may be
issued to obtain financial information needed to finalize insolvent
and defunct determinations or analyze ability to pay.
Specialized 104(e) Questions
The Agency may need to ask more specialized questions in the
follow-up information request letters to fill information gaps.
CERCLA Section 104(e) questions organized by subject matter are
available at http://www.epa.gov/compliance/resources/publications
/cleanup/superfund/104e/index.html. (See Chapter 4 References,
p. 241.)
Chapter 4: Follow-up PRP Search
203
-------
PRP Search Manual
September 2009
Specialized questions are listed for the following categories:
• Arrangers and Generators
• Arrangers and Generators Recycling
• Transporters
• Financial: General Questions
• Financial: Lender Liability
• Financial: Other Entities
• Financial: Trusts
• Financial: Estates
• Financial: Successor Liability
• Financial: Parent Corporations
• Financial: Piercing the Corporate Veil
• Financial: General ATP
• Financial: Individual Ability to Pay Questions
• Financial: Individual Ability to Pay Form
• Financial: Form to Request ATP guidances, models, and tools
from headquarters
• Financial: Dissolution
• Financial: Insurance
• Owner/Operator: General Questions
• Owner/Operator: General Manufacturing
• Owner/Operator: Chemical and Manufacturing Plants
• Owner/Operator: Grain Fumigants
• Owner/Operator: Polychlorinated Biphenyls Sites
• Owner/Operator: Solvents
• Owner/Operator: Landfills
• Owner/Operator: Mining
• Owner/Operator: Used Oil Facilities: Tar Oil
• Owner/Operator: Used Oil Facilities: Waste Oil
• Owner/Operator: Lead Battery Facilities
• Owner/Operator: Dry Cleaners
• Owner/Operator: Auto Shops
• Owner/Operator: Innocent Landowners
Chapter 4: Follow-up PRP Search
204
-------
PRP Search Manual
September 2009
4.2
Compel
Compliance
with CERCLA
Section 104(e)
If a recipient of a CERCLA Section 104(e) information request letter
fails to respond within the specified time or provides incomplete
answers, a reminder letter should be sent to the unresponsive
recipient. (See subsection 3.3.5 of this manual for discussion of
information request follow-up actions.) In addition to warning the
recipient of the risk of incurring penalties or civil judicial or
administrative enforcement actions, the reminder letter provides
him with an opportunity to contact EPA if he has questions or needs
clarification. The reminder letter also satisfies the notice and
opportunity for consultation requirement of CERCLA Section
104(e)(5)(A) if enforcement by administrative order is
contemplated. If there is no response or if the response to a
request is still unsatisfactory after the reminder deadline has
passed, EPA may compel compliance with the request through
either administrative or judicial action. The PRP search manager
should coordinate with the case attorney on the enforcement
strategy. The case attorney usually takes the lead on compelling
compliance.
EPA can implement the following enforcement strategies:
• issue an administrative order to compel compliance with the
request for responsive written information; or
• initiate a judicial action seeking a court order compelling the
recipients to provide the requested information or
documents; and
• seek civil non-compliance penalties in an administrative
order or a judicial action.
Administrative Order to Compel Compliance
Under CERCLA Section 104(e)(5)(A), the Agency can issue an
administrative order to compel compliance with the information
request. Administrative orders are issued by EPA and require
Chapter 4: Follow-up PRP Search
205
-------
PRP Search Manual
September 2009
notice and an opportunity for consultation. The order should
indicate the date on which it becomes effective and also advise the
respondent that penalties may be assessed by a court against any
party who unreasonably fails to comply with the order. If the
recipient continues to ignore the request for information, the
Agency will have to prepare a referral package to DOJ requesting
enforcement of its administrative order. This process, although
potentially time-consuming, may allow EPA to obtain the needed
information. Refer to Model Administrative Order for CERCLA
Information Requests (September 30, 1994). (See Chapter 4
References, p. 241.)
Judicial Action to Compel Compliance/Referrals to DOJ
CERCLA Section 104(e)(5)(B) authorizes the federal government to
initiate a civil lawsuit to compel a person to respond to the Agency's
information request. A court will provide necessary relief as long as
EPA's demand for information is not arbitrary and capricious, an
abuse of discretion, or otherwise not in accordance with law.1 A PRP
that unreasonably fails to respond to a proper demand for
information potentially faces substantial monetary penalties
($37,500 per day effective January 12, 2009).2 These civil penalties
are based on strict liability. EPA does not have to prove that the
PRPs intended to violate the law by not responding in a timely
manner.
The PRP search manager should work closely with the case attorney
to determine the best strategy to pursue in view of all the factors
surrounding partial or non-compliance with a Section 104(e)
information request. The region should be prepared to present the
facts of the case when seeking DOJ action to compel compliance.
1 See CERCLA Section 104(e)(5)(B)(ii), 42 U.S.C. §9694(e)(5)(B)(ii). See also United
Statesv. Tarkowski, 248 F.3d 596 (7th Cir. 2001), denying EPA access as arbitrary and capricious.
2 The CERCLA Section 109(a)( 1) penalty is periodically increased pursuant to the Civil
Monetary Penalty Inflation Rule, DecemberSl, 1996. See Chapter 4 References, p.241.
Chapter 4: Follow-up PRP Search
206
-------
PRP Search Manual
September 2009
The basis for the enforcement action (e.g., type of information
sought, why the information is important, timing considerations)
should be clearly stated in the referral in order to streamline the
process within DCO. In addition, the referral should contain
evidence or findings that:
• EPA has a reasonable basis to believe that there may be a
release or threat of a release of a hazardous substance,
pollutant, or contaminant at a given site or vessel;
• the information request was issued for the purpose of
determining the need for a response or choosing or taking
any response action under CERCLA Title I, or otherwise
enforcing CERCLA Title I, with respect to the site or vessel;
• the respondent was requested to provide information
relating to one or more of the three categories of
information identified in CERCLA Section 104(e)(2)(A)-(C);
and
• the respondent did not comply with the request in a timely
manner.
• any significant factor, such as more costs incurred, more
time required, or threats increased as a result of non-
compliance with this action.
The case team should calculate the penalty by determining the
maximum allowable penalty and adjusting it for litigation risk
factors. Typically the penalty will at least seek to recover any
economic gain created by the violation. In addition, the referral
should include proof of service and should address possible
defenses, such as good faith effort to comply. (See "Final Model
Litigation Report and Complaint for CERCLA Section 104(e)
Initiative" (January 1990), Chapter 4 References, p. 241, for more
detailed information.)
Chapter 4: Follow-up PRP Search
207
-------
PRP Search Manual
September 2009
4.3
Issue
Administrative
Subpoenas
An administrative subpoena is an information gathering tool that
can be used by the PRP search team. CERCLA Section 122(e)(3)(B)
authorizes EPA to issue administrative subpoenas, which require
live testimony of witnesses (subpoena ad testificandum) or the
production of documents (subpoena duces tecum) deemed
necessary for performing a non-binding preliminary allocation of
responsibility (NEAR) or "for otherwise implementing" CERCLA
Section 122, e.g., reaching ability to pay or de minimis settlements
under Section 122(g). This means that in order to issue a
subpoena for testimony by a live witness, EPA must show that the
expected testimony is related to pursuit of an NEAR or other
settlement activities. The purpose of the testimony should be
clearly set forth in the supporting documents. The PRP search
team should discuss a possible subpoena with the case attorney
and consult "Recommendations Concerning the Use and Issuance of
Administrative Subpoenas under CERCLA Section 122" (August 30,
1991) as well as "Guidance on Use and Enforcement of CERCLA
Information Requests and Administrative Subpoenas" (August 25,
1988). (See Chapter 4 References, p. 241.)
Administrative subpoenas may be judicially challenged. Therefore,
it is important to document the rationale for invoking the authority
provided in CERCLA Section 122(e)(3)(B). In particular, it is
important to show how the subpoena's issuance either furthers the
NEAR process or satisfies the criterion of "otherwise implementing
CERCLA Section 122." Accordingly, the subpoena should describe or
identify as specifically as possible the information sought from the
recipient. If documents are requested, a list of the specific
documents or areas of inquiry is recommended. In addition, the
subpoena should inform the recipient that he or she might claim
certain information as CBI.
Chapter 4: Follow-up PRP Search
208
-------
PRP Search Manual
September 2009
Generally, the procedural rights of a witness differ depending upon
the Agency's intent to adjudicate or investigate. When the Agency
issues an administrative subpoena pursuant to CERCLA Section 122
(e)(3)(B), its purpose is to investigate or gather information. A
witness served with an administrative subpoena does not have the
following procedural rights:
• right of legal counsel to cross-examine;
• right of legal counsel for the witness to "speak on the
witness record;" and
• right to receive aid in developing testimony or other forms
of "coaching" from legal counsel during questioning.
No legal mandate prohibits the use of an administrative subpoena
as an initial information gathering tool, but the Agency prefers
using CERCLA Section 104(e) information requests before issuing
administrative subpoenas.3 Information request letters are less
intimidating and generally more conducive to expeditious and
favorable settlements than administrative subpoenas, but
administrative subpoenas are useful for preserving testimony.
Witnesses who have received an administrative subpoena are
entitled to receive the same fees and mileage reimbursement that
are paid in U.S. courts. Travel expenses are paid at the same rates
applicable to federal employees for items such as common carrier,
hotel, subsistence, and mileage. It is the region's responsibility to
budget for these expenses within the travel budget allocated to it.
3 Regional consultation with headquarters is not required prior to issuing administrative
subpoenas as long as the subpoena does not deviate significantly from the model subpoena issued by
the Agency in 1988. See Guidance on Use and Enforcement of CERCLA Information Requests and
Administrative Subpoenas (August 25, 1988), Chapter 4 References, p. 241. If the subpoena
deviates significantly from the model, consultation with EPA's Office of Enforcement and
Compliance Assurance is required.
Chapter 4: Follow-up PRP Search
209
-------
PRP Search Manual
September 2009
The PRP search team should work with the region's Financial
Management Division to determine the paperwork requirements
(e.g., procurement requests, government transportation requests,
travel vouchers) when planning to use administrative subpoenas.
Referrals to Enforce an Administrative Subpoena
EPA may seek enforcement of an administrative subpoena if the
recipient fails to appear to testify, fails to provide documentary
evidence, or refuses to answer all the questions asked. CERCLA
Section 122(e)(3)(B) authorizes EPA to bring an enforcement action
if this should happen. As with any legal enforcement proceeding,
EPA must refer the case to DOJ, following the procedures set forth
in the August 25, 1988 guidance. The appropriate documents must
be prepared by the case attorney, who will seek the necessary
assistance from other PRP search team members. A referral to
enforce an administrative subpoena consists of a draft petition for
an order to show cause, a draft memorandum of points and
authorities in support of the petition, and a draft order to
accompany the petition. The memorandum of points and
authorities should briefly set out the facts of the case and address
any arguments or defenses that the respondent is likely to raise.
The referral should also contain all necessary exhibits in support of
the petition, including an affidavit of service, a copy of the
subpoena, an affidavit supporting the facts alleged in the petition
from a person with knowledge of those facts, and any other
relevant material that serves as the administrative record
documenting the subpoena process.
Chapter 4: Follow-up PRP Search
210
-------
PRP Search Manual
September 2009
4.4
Perpetuate
Testimony
Using Rule 27
[The following discussion of Rule 27 is provided for
informational purposes only. If you are considering
requesting a Rule 27 deposition, please consult your
regional and DOJ counsel prior to taking any action.]
Where Rule 27 May Be Appropriate
Rule 27 of the Federal Rules of Civil Procedure (see Chapter 4
References, p. 241) establishes a procedure for taking the
deposition of a person before a civil action is filed in federal court.
This method of obtaining testimony is used infrequently but can be
a useful tool in a situation where the government is not able to file
a case because it is not yet "ripe" for adjudication. The legal
concept of "ripeness" requires careful legal analysis. Team
members should consult the case attorney as to whether and how
this concept applies to their particular case. When an action cannot
be brought immediately there may be a risk of losing the testimony
of key witnesses due to death, departure from the country, or other
circumstances incident to the passage of time. Rule 27 provides a
means to record this testimony and use it in court should the
witness not be able to testify.
Rule 27 can be a useful tool when conducting PRP searches. There
are likely to be few remaining witnesses to disposals that occurred
two or three decades ago. Those who are still alive, such as former
truck drivers, may be quite old. Although rarely used, Rule 27 can
provide the Agency with an important means of preserving the
testimony of these witnesses in the event that they are later
"unavailable" under the legal definition of that term.
Use of Rule 27 Testimony
Procedurally, the taking of a Rule 27 deposition does not differ in
any way from a deposition conducted during discovery in a civil
action ("discovery deposition"). The deponent has the right to
counsel, may be cross-examined, and testifies under oath subject
Chapter 4: Follow-up PRP Search
211
-------
PRP Search Manual
September 2009
to the penalties of perjury. Furthermore, in terms of admissibility
in court, there is no difference between testimony from a Rule 27
deposition and a discovery deposition. An attorney who wants to
take a Rule 27 deposition, however, must get the court's
permission, whereas a discovery deposition may be taken without
special permission. Special permission involves "petitioning the
court" or filing the appropriate legal motions or briefs as necessary.
This is done by the DOJ attorney and the regional case attorney.
Although this can be a lengthy process, it is certainly worthwhile to
preserve testimony in case an important witness dies or becomes
too ill to appear at the trial. In addition, the testimony elicited from
Rule 27 depositions is admissible in a wider number of
circumstances than testimony in response to an administrative
subpoena issued pursuant to CERCLA Section 122(e)(3)(B). As in
the case of a discovery deposition, the other PRPs need to be
notified that a deposition will take place and given an opportunity
to attend.
Referral Procedure
Regional attorneys desiring to take a deposition pursuant to Rule
27 must prepare a summary referral package and forward it to
DOJ. A Rule 27 package is less detailed than the standard litigation
report since the requested action is less complex than initiation of a
lawsuit.
There are two components of the package. The first and most
important part is a background description of the Agency's actions
and the need for a Rule 27 deposition. In short, this should briefly
describe the Agency's actions at the site, including removals,
remedial actions, enforcement actions, PRP search efforts, and
other relevant activity necessary to familiarize DOJ with the case.
Next, there should be a detailed discussion that demonstrates that
there is a substantial likelihood that the government would be
successful in establishing each element enumerated in Rule
Chapter 4: Follow-up PRP Search
212
-------
PRP Search Manual
September 2009
27(a)(l) and of receiving the court's approval for the deposition.
All documentary evidence, such as medical records and
correspondence with the witness, should accompany this
discussion.
The second part of the package is the draft petition. Regional
counsel should draft the petition for approval by DOJ.
The completed package should be sent to the appropriate assistant
section chief at DOJ for review. The DOJ attorney will contact EPA's
case attorney to discuss the resolution of any issues that may be
identified. DOJ will file the petition with the court. If the court
approves the petition, DOJ will provide notice to opposing counsel
and arrange to take the deposition at an appropriate location such
as the U.S. attorney's office nearest to the deponent. If the court
denies the petition, Agency personnel may be required to provide
additional evidence to substantiate the need for the proceeding.
4.5
Perform Ability
To Pay
Determinations
In cases where EPA is considering an ability to pay settlement, EPA
must consider competing interests. On one hand, the Agency is
charged with ensuring that hazardous waste sites are cleaned up,
that Trust Fund expenditures are recovered, and that those
responsible for contamination pay an appropriate share of cleanup
costs. On the other hand, many individuals and businesses have
limited resources with which to satisfy the government's claims.
The latter consideration begins the ATP analysis, sometimes
referred to as a financial assessment. The purpose of an ATP
analysis is to develop the financial and economic information
necessary to assess the ability of a PRP to address an
environmental problem, pay a penalty, or provide funds for cost
recovery. This assessment enables EPA to formulate an
appropriate negotiation and litigation strategy. ATP determinations
are usually made by staff with specialized expertise.
Chapter 4: Follow-up PRP Search
213
-------
PRP Search Manual
September 2009
4.5.1
General Policy on
Superfund Ability
To Pay
Determinations
EPA's "General Policy on Superfund Ability to Pay Determinations"
(September 30, 1997) (see Chapter 4 References, p. 241) and
model language for ATP settlements provide EPA with the means to
settle the liabilities of PRPs with ATP issues in a way that "will not
put a company out of business" and avoids imposing undue
financial hardship on either businesses or individuals. CERCLA
Section 122(g), titled "De Minimis Settlements," was amended to
specifically authorize EPA to: (1) negotiate settlements based on a
PRP's ability to pay rather than on its full liability at the site; (2)
require ATP applicants to promptly provide EPA with the information
needed to assess the PRP's ability, or inability, to pay; and (3)
consider alternative payment methods as may be appropriate when
ATP PRPs are unable to pay the "total settlement amount at the
time of settlement." Users of this manual should not rely solely on
information presented herein, but should consult EPA's ATP policies
and provisions in their entirety.
ATP settlement is reserved for persons who demonstrate that
paying the amount sought by the government is likely to put them
out of business or jeopardize their viability. It is also available to
businesses and individuals who demonstrate that paying such an
amount is likely to create an undue financial hardship. Undue
financial hardship means that satisfying the government's claim
would deprive the PRP of ordinary and necessary assets or render
the PRP unable to pay for ordinary and necessary business or living
expenses.
As the court noted in United States v. Bay Area Battery,4 the
government must be afforded the flexibility to take ability to pay
into account in fashioning settlements under CERCLA. In particular,
it must consider the value of permitting businesses to continue
earning money and employing workers, and demonstrate
compassion for individual circumstances.
' United States v. Bay Area Battery, 895 F. Supp. 1524 (N.D. Fla. 1995).
Chapter 4: Follow-up PRP Search
214
-------
PRP Search Manual
September 2009
Conditions under Which EPA Will Consider a Claim of Undue
Financial Hardship
Although an ATP settlement is based largely on the financial
condition of the ATP candidate, other requirements have to be
satisfied as well. These requirements include the following:
• The PRP requests the ATP settlement.
• The PRP provides sufficient information to carry the burden
of demonstrating that payment of the full amount sought by
EPA is likely to create an undue financial hardship.
• The ATP analysis is based on the best available information
provided by the PRP.
• The ATP analysis considers the entire financial position of
the PRP, including available insurance.
• The settlement does not release the PRP from other
site-related responsibilities (e.g., providing necessary
information, site access).
• The settlement is entered into on an individual basis with
each person as defined by CERCLA.
• The settlement amount is in addition to expenditures that
are recoverable from other sources.
• The settlement resolves all the PRP's liability at the site.
(See "Model Notice Approving Reduction in Settlement Amount
Based on Inability to Pay" (April 30, 2008) and "Model Notice
Denying Reduction in Settlement Amount Based on Inability to Pay"
(April 30, 2008), Chapter 4 References, p. 241.)
Chapter 4: Follow-up PRP Search
215
-------
PRP Search Manual
September 2009
Evaluation of an entity's ability to pay generally consists of a
two-part analysis. The first part of the analysis, called the "balance
sheet phase," looks at the assets, liabilities, and owner's equity of
the PRP, calculating the amount of money available from excess
cash, sale of assets that are not ordinary and necessary, borrowing
against assets, and owner's equity. The second part of the
analysis, called the "income and cash flow statement phase," looks
at the income and expenses of the PRP and generally calculates
"available income" for a Superfund settlement over a five-year
period. The number of years of available income, however, may be
changed when circumstances warrant. (See "Interim Guidance on
the Ability to Pay and De Minimis Revisions to CERCLA § 122(g) by
the Small Business Liability Relief and Brownfields Revitalization
Act" (May 17, 2004), Chapter 4 References, p. 242.)
4.5.2
ATP Information
Sources
EPA has developed computer models for analysis of financial issues
affecting enforcement actions. The models and information about
them are available at http://www.epa.gov/compliance/civil/
econmodels and http://www.indecon.com/iec_web/econmodels/
practice/models. (See Chapter 4 References, p. 242) As the
models are updated periodically, it is advisable to consult both web
sites to make sure you have the latest versions. Information about
them is also available from EPA's Superfund, TRI, EPCRA, RMP & Oil
Information Center at (800) 424-9346. These models are
screening tools only and their use does not constitute a thorough
analysis. The case team should consult the financial analyst who
will be reviewing the ATP candidate's financial information to ensure
that all relevant information is requested. Also be aware that your
region may have customized one or more of the models to adapt
them to regional needs.
ABEL Model
ABEL is a computer program designed to evaluate the ability to pay
of firms held liable for environmental penalties or Superfund
Chapter 4: Follow-up PRP Search
216
-------
PRP Search Manual
September 2009
cleanups, and is intended to be used as a screening tool. It
estimates the probability that a firm can pay a penalty, contribute
to the cleanup of a Superfund site, or invest in pollution control
equipment. ABEL is designed to accept tax data input directly from
tax returns submitted by C corporations, S corporations, and
partnerships (i.e., IRS forms 1120, 1120A, 1120S, and 1065,
respectively). ABEL is convenient to use because virtually all
business entities are required to file tax returns. In the absence of
tax return data, analysis of private corporations can be performed
using sources such s financial statements, loan applications, and
Dun & Bradstreet reports. ABEL also presents a two-phase analysis
of a firm's financial health:
1. The financial profile presents a summary of the firm's
balance sheet, income statement, and cash flow; ABEL also
computes five financial ratios to provide a rudimentary
measure of the company's financial health.
2. The ATP analysis estimates future cash flow based on the
company's past performance.
INDIPAY Model
INDIPAY is a computer program designed to evaluate the ability to
pay of entities for which the individual owner is responsible for the
penalty or contribution, such as sole proprietorships, partnerships,
and private individuals. The model requires one to three years of
individual tax return data and the Individual Financial Data Request
Form (see Appendix G), which can be generated from within the
model. INDIPAY provides two types of analysis:
1. Phase 1 is a quick assessment of an individual's level of net
income and complexity of personal finances. If an individual
has low income and uncomplicated finances, a Phase 2
analysis is unnecessary.
Chapter 4: Follow-up PRP Search
217
-------
PRP Search Manual
September 2009
2. Phase 2 estimates whether the individual can pay a penalty,
based on cash flow and ability to borrow additional funds,
which is modified if the individual is retired.
These two scenarios are discrete, independent analyses. Their
results should not be combined to determine ability to pay; instead,
the lower of the two results is usually relied on.
(See Appendices H, I, and J for additional individual financial data
forms that may be useful in lieu of or in addition to the INDIPAY
Financial Data Request Form or in special situations.)
MUNIPAY Model
The Municipal Ability to Pay Model (MUNIPAY) evaluates a
municipality's, town's, sewer authority's, or drinking water
authority's claim that it cannot afford compliance costs, cleanup
costs, or civil penalties. MUNIPAY performs two different analyses,
a demographic comparison, which uses U.S. Census data to
compare the municipality to state and national norms, and an
affordability calculation, which assesses the amount of currently
available funds and, if necessary, funds available through financing.
Other Sources of Information
Other potential sources of information for conducting financial
analyses include:
• THE NATIONAL ENFORCEMENT INVESTIGATIONS CENTER. NEIC
staff with financial- analysis expertise are potential
resources for conducting financial analyses.
• DUN & BRADSTREET REPORTS. Dun & Bradstreet (D&B)
provides financial information about companies for a fee.
D&B reports are frequently used to evaluate credit
Chapter 4: Follow-up PRP Search
218
-------
PRP Search Manual
September 2009
worthiness as they include information on company
finances, payment history, and officers. Information in the
reports is submitted to D&B by the companies themselves.
D&B company profiles allow comparison of the financial
condition of similar companies.
AUDITED STATEMENTS. Audited statements are financial
statements made by an independent auditor. Independent
auditors are accountants who follow consistent procedures
required by generally accepted accounting principles
(GAAPs) and generally accepted auditing standards (GAAS).
Information included in audited statements is therefore
considered verifiable. Audited statements often describe
related party transactions and contingencies in footnotes.
These documents are prepared for purposes other than ATP
analysis, however, and are verifiable in the context of
accounting purposes only. If audited statements are not
available, a review or compilation should be used.
UNAUDITED STATEMENTS. Unaudited statements are financial
statements usually prepared by someone with an accounting
background for the management of a company. These
statements are useful in that they are flexible in providing
types of information such as environmental expenditures,
but they are not verifiable. For a company's fiscal year,
financial or unaudited statements are usually provided when
an audit review or compilation is not available. For the most
recent year-to-date financial information, unaudited
statements are expected.
TAX RETURNS. Federal income tax returns are among the
most important documents for ATP analysis because they
typically contain standardized information that can be used
directly with the ABEL model. Returns must be signed, and
include all supporting schedules. The Agency should
Chapter 4: Follow-up PRP Search
219
-------
PRP Search Manual
September 2009
request that each ATP candidate (business or individual)
submit federal income tax returns for the past five years and
a completed financial questionnaire.
• ANNUAL REPORTS. Annual reports can be very useful
indicators of the health of a corporation and can be used to
bring to light inconsistencies in the financial picture the
company is reporting to its shareholders and the information
it provides to EPA via Section 104(e) responses.
• FORM 10-K. Federal securities laws require publicly traded
companies to disclose information on an ongoing basis.
Domestic issuers other than small businesses must submit
annual reports on Form 10-K to the Securities and Exchange
Commission. These reports provide a comprehensive
overview of companies' business and financial conditions,
and include audited financial statements. The annual report
on Form 10-K is distinct from the annual report that
companies send to their shareholders when they hold annual
meetings to elect directors, although companies are required
to provide copies of their 10-K reports at shareholder
request. In addition, companies with a public float (equity
market capitalization) of $75 million or more must disclose
on their 10-K forms whether they make their reports
available free of charge on their web sites. Form 10-K
filings are available from the EDGAR database on the SEC
web site (http://www.sec.gov.edgar.shtm!).5 (See Chapter
4, References, p. 242.)
Forms that should be requested from different types of for-profit
PRPs and individuals include:
• Form 1120 or Form 1120A (short form) plus supporting
schedules for regular (Subchapter C) corporations;
' "Form 10-K," http://www.sec.gov/answers/formlOk.htm.
Chapter 4: Follow-up PRP Search
220
-------
PRP Search Manual
September 2009
• Form 1120S plus supporting schedules for Subchapter S
corporations (Subchapter S corporations may not have more
than 75 shareholders and must meet other requirements to
qualify for this tax treatment.);
• Form 1065 plus supporting schedules including Schedule K-l
for each partner to a partnership and each partner's Form
1040;
• Form 1040 plus supporting schedules, which should include
Schedule C (business income) for sole proprietorships (Sole
proprietors should also submit an Individual Financial Data
Request Form.); and
• Form 1040 plus supporting schedules for individuals
(Individuals should also submit an Individual Financial Data
Request Form.).
Other financial information resources include:
• U.S. SECURITIES AND EXCHANGE COMMISSION. The SEC
requires all public companies (except foreign companies and
those with less than $10 million in assets and 500
shareholders) to file registration statements, periodic
reports, and other forms electronically through its Electronic
Data Gathering, Analysis, and Retrieval system (EDGAR).
Documents submitted to the SEC in compliance with federal
laws and SEC regulations typically contain a mixture of
information from audited statements, tax returns, and other
sources. This information is available from the SEC on line.
(See Chapter 4 References, p. 242.)
• COURT RECORDS. These are a potential source of
information, but locating them requires someone familiar
with courthouse Searches. Many state and local court
Chapter 4: Follow-up PRP Search
221
-------
PRP Search Manual
September 2009
records are now available on line. Federal records can be
accessed through PACER. (See "Potentially Responsible
Party Internet Information Sources (PRPIIS)" in Appendix F.)
ON-LINE SOURCES FOR PRP INFORMATION. Information from
on-line databases may be useful in clarifying or verifying
information obtained from other sources, uncovering hidden
assets, identifying related companies, and other purposes.
(See "Potentially Responsible party Internet Information
Sources (PRPIIS)" in Appendix F.)
INFORMATION REQUEST LETTER RESPONSES. Non-PRPs, such
as owners of nearby properties, often have valuable
information about a site and its operations. Information
request letters may be issued to any individual who may
have information about a site. The PRP search team should
consider issuing CERCLA Section 104(e) requests to any
party that might have information, whether or not the party
is likely to be named as a PRP.
4.5.3
Performing
Property
Appraisals
[Note: If the U.S. is obtaining an appraisal for purposes of
acquiring property, it must adhere to very strict appraisal
rules that are, in part, codified.]
The Agency may need to assess the monetary value of certain
contaminated real property to support remedial actions evaluated
or undertaken in accordance with the NCP. This may include
purchasing land and relocating residents as well as imposing a
notice of lien under Section 107(i), (I), or (r) of CERCLA and
pursuing an in rem action against the property. Property appraisals
may be conducted both before and after remedial action. If EPA's
response action increases the fair market value of the property,
EPA may have a CERCLA Section 107(r) "windfall" lien for
Chapter 4: Follow-up PRP Search
222
-------
PRP Search Manual
September 2009
the increase in fair market value attributable to EPA's response
action up to the amount of EPA's unrecovered response costs.
Property appraisals may also be conducted during a PRP search to
determine the assets of a PRP. For more detail on windfall liens,
consult the "Interim Enforcement Discretion Policy Concerning
"Windfall Liens" Under Section 107(r) of CERCLA" (July 16, 2003).
(See Chapter 4 References, p. 242.)
Since professional real estate appraisals may be expensive, each
appraisal should be specifically authorized by the EPA primary
contact when a contractor is conducting the PRP search. Less
costly estimates of the "as is" property value may be developed by
parties other than professional real estate appraisers. In either
case, the PRP search team should carefully evaluate whether and
what kind of property appraisal is needed before committing funds
to conduct a property assessment. The researcher should also
obtain the names of all Agency and DCO personnel who may be
using the information obtained from the property appraisal.
Because appraisal assumptions affect the usefulness of value
estimates, it is important for the researcher to be aware of the
assumptions involved in the search.
All the assumptions made when performing the appraisal should be
noted. For example, the date on which remediation will be
completed and the property will reach its post-remediation value
can only be estimated. "As is" and "as modified" property
valuations need clear and complete descriptions of the property
modifications as well as consideration of "highest and best use" of
modified property, i.e., its most productive appropriate use. In
addition, it should be noted whether there is a fee simple title that
is free and clear of all debts, liens, and encumbrances.
Selecting and retaining a real estate appraiser is an important part
of the property appraisal process. To obtain information on a
recommended real estate appraiser, the researcher may go to the
Chapter 4: Follow-up PRP Search
223
-------
PRP Search Manual
September 2009
local Chamber of Commerce, obtain member lists from appraiser
associations such as the Institute of Real Estate Appraisers, or use
the yellow pages. After researching the lists of property appraisers,
several of these firms should be contacted in order to address the
planned research, assess the appraiser's qualifications and
credentials, and ascertain if there are any potential conflicts of
interest. If a contractor is involved in the selection process, it
should clear its choice with the Agency. Finally, once the appraiser
is approved by EPA, a contract should be prepared that includes a
list of written assumptions for the appraiser and sets a ceiling on
costs unless first notified by the appraiser.
The need for a property appraisal should be considered in the PRP
search planning process. Any scheduling requirements should be
clearly explained to the appraiser prior to signing a contract. If the
schedule cannot be met "up front," another appraiser should be
selected. The existence of nearby, comparable property recently
subjected to value assessment should be considered prior to
performing the property appraisal. Close contact and coordination
must be maintained among all parties involved (EPA, contractor,
appraiser) to define the comparable search area and be aware of
scheduling and budgetary impacts. Finally, the appraiser should
contact the EPA primary point of contact to determine if site access
is required. If access is required, EPA should contact the site owner
and request written consent. The Army Corps of Engineers may be
available to perform property appraisals, pursuant to existing
interagency agreements. Informal property values can often be
easily obtained at the county assessor's office. This information is
often available on line. A county assessor's office typically will have
properties' tax-assessed values as well as their fair market values.
Chapter 4: Follow-up PRP Search
224
-------
PRP Search Manual
September 2009
4.6
Perform
Insolvent and
Defunct
Determinations
At sites where PRPs have agreed to perform cleanup (either
remedial action under a CD, or non-time-critical removal activity
under an AOC, EPA may have committed itself to compensate a
portion of the shares of insolvent and defunct parties under the
"Interim Guidance on Orphan Share Compensation for Settlors of
Remedial Design/Remedial Action and Non-Time-Critical Removals"
(June 4, 1996).6 (See Chapter 4 References, p. 242.)
4.6.1
Definition
This interim guidance applies where:
• EPA initiates or is engaged in ongoing negotiations for RD,
RA, or a non-time-critical removal at an NPL site;
• a PRP or group of PRPs agrees to conduct the RD/RA or RA
pursuant to a CD or the non-time-critical removal pursuant
to an AOC or CD; and
• an orphan share exists at the site.
The guidance does not apply at owner/operator-only sites or to
federal facilities.
Orphan Share Definition
The term "orphan share" refers to the share of responsibility that is
specifically attributable to parties EPA has determined are:
• potentially liable;
• insolvent or defunct; and
6 Note that this guidance does not apply to CERCLA cost recovery settlements in which
the parties are not agreeing to perform RD/RA work or a non-time critical removal. In these
situations, reference the "Addendum to the Interim CERCLA Settlement Policy issued on December
5, 1984" (September 30, 1997) (see Chapter 4 References, p. 242), which provides the regions with
direction for addressing potential compromises of CERCLA cost recovery claims due to the
existence of a significant orphan share.
Chapter 4: Follow-up PRP Search
225
-------
PRP Search Manual
September 2009
• unaffiliated with any party potentially liable for response
costs at the site.
The orphan share does not include liability attributable to:
• unallowable waste;
• the difference between a party's share and its ability to pay
(the "delta"); or
• those parties such as "de micromis" contributors, MSW
contributors, or certain lenders or residential homeowners
that EPA would not ordinarily pursue for cleanup costs.
4.6.2
Insolvent and
Defunct
Determinations
A party is considered insolvent if EPA determines that the party has
no ability to pay. A party is not considered insolvent if it has some,
even a limited, ability to pay. Available insurance counts as having
some ability to pay.
A party is considered defunct if it:
• has ceased to exist or ceased operations; and
• has fully distributed its assets such that the party has no
ability to pay.
For both insolvent and defunct determinations, EPA's investigation
must indicate that there is no successor or other affiliated party
that is potentially liable.
Regions have the flexibility to determine the appropriate level of
information gathering and analysis necessary to determine if a
party is insolvent or defunct. In many situations, there will be
information readily available demonstrating that a party is
Chapter 4: Follow-up PRP Search
226
-------
PRP Search Manual
September 2009
insolvent or defunct, e.g., a CERCLA Section 104(e) response. In
most cases, however, some additional information gathering will be
necessary.
The "General Policy on Superfund Ability to Pay Determinations"
(September 30, 1997) (see Chapter 4 References, p. 241) also may
be useful in making insolvent and defunct determinations. Although
ATP is a distinct determination, the analysis is similar to that
required to make an insolvent and defunct determination.
The standard for determining a party's limited ability to pay is
whether a payment of the amount sought by the government is
likely to create an extreme financial hardship. Under ATP analysis,
if EPA makes a finding that satisfaction of an environmental claim
will prevent a PRP from paying for ordinary and necessary business
expenses or ordinary and necessary living expenses, the proposed
settlement amount should be reduced. This standard of "extreme
financial hardship" applies when determining ATP parties for
purposes of determining the orphan share at a site.
Specific Methods of Gathering and Analyzing Information
There are three levels of information gathering and analysis that
may be considered in making orphan share determinations:
1. An initial screening process that focuses on public
information, e.g., Census Bureau information, D&B reports,
SEC filings, and limited financial submissions, e.g., five
years of tax returns;
2. Computer models (e.g., ABEL, INDIPAY, MUNIPAY), if the
initial screening process indicates further analysis is
required; and
3. Services of regional or contractor financial analysts.
Chapter 4: Follow-up PRP Search
227
-------
PRP Search Manual
September 2009
It is up to the region to determine the appropriate level of analysis
for making an orphan share determination. Note that this applies
only to the orphan share determination; the ATP guidance still
requires the use of a financial analyst for an ATP settlement.
If you have reason to suspect that a party filed for bankruptcy, first
check with your regional bankruptcy coordinator, usually an
attorney in the Office of Regional Counsel. This may save time and
prevent duplicative effort. If she does not have any record of
having received a bankruptcy notice, consider taking the following
steps:
• Call the party and ask if a bankruptcy petition has been
filed. Alternatively, this information may be available from
D&B or other type of credit reports. Calling the clerk of the
nearest bankruptcy court may not be sufficient because the
broad venue provision in the Bankruptcy Code often
provides debtors with a choice of bankruptcy courts. Once
you have identified the court where the case was filed and
the bankruptcy docket number, you can obtain access to the
bankruptcy court files through PACER, a database available
by subscription, and accessed from the bankruptcy court's
web page. You can also request copies of documents
directly from the bankruptcy court clerk, but this could take
time and involve pre-payment of a fee. You can seek
assistance from the Office of the United States Trustee for
the court where the bankruptcy case is pending. If the case
is closed, the records may be at a federal records center.
Access to these records may be obtained through the clerk
of the court.
• Check with regional information managers and bankruptcy
coordinators for on-line systems that may provide access to
federal bankruptcy court records, filing dates, and other
relevant information.
Chapter 4: Follow-up PRP Search
228
-------
PRP Search Manual
September 2009
Even if the party filed for bankruptcy, this does not necessarily
indicate that the debtor/PRP is insolvent for purposes of the orphan
share reform. You will need to know when the bankruptcy was filed
and if the debtor/PRP obtained a discharge of the CERCLA debt.
To determine if a party has financial difficulties outside bankruptcy:
• Check to see if the PRP has fallen behind in payments to
creditors and what the consequences of non-payment have
been. For example, a case team may want to determine
whether creditors have moved to take control of accounts
receivable or secured property, or whether a creditor has
arranged to auction secured property. Some of this
information may be found in D&B reports. Other
investigative techniques may be required. Consult CIs and
financial analysts to identify further steps to take.
• Check the UCC filings to determine if creditors have
perfected liens against a party's property. UCC filings are
available on line and are filed with the secretary of state.
• Check to determine if a company is publicly traded or
privately held. If it is privately held, information about it is
usually less immediately available, and the importance of
the Section 104(e) information request regarding ownership
and company viability is pivotal.
To determine if a corporation has ceased to exist or ceased
operations:
• Check with the secretary of state to determine whether a
certificate of dissolution has been filed in the case of a
suspected defunct corporation.
Chapter 4: Follow-up PRP Search
229
-------
PRP Search Manual
September 2009
• Check to see when the last annual filing was made. If one
has not been made recently, this may be an indication that
the corporation is going out of business or has ceased to
operate; however, it could also indicate it is simply late in
filing, so look beyond this record.
• Check to see if a state has revoked a corporate license.
States may revoke corporate licenses if corporations are not
in good standing for non-payment of the annual fee or other
reasons.
Some states permit lawsuits against corporations within a specified
period following their dissolution. It may be important to
investigate this possibility if a corporation's assets were never
distributed or their distribution has not been completed.
To determine if a municipality or other government entity has
ceased to exist:
• Check whether the entity has lost its status as a subdivision,
public agency, or instrumentality of the state.
To determine if the PRP has additional resources:
• Ask the PRP to disclose its ability to recover expenses
associated with the site in its response to CERCLA Section
104(e) requests or financial questionnaires. A potential
orphan PRP, like an ATP candidate, may be able to recover
expenses from other sources. These sources may include
insurance recoveries, indemnification agreements,
contribution actions, and property value increases resulting
from cleanup activities. If these funds are significant and
likely to be recovered, the recovered expenses should be
considered recoverable by the United States so that the
Chapter 4: Follow-up PRP Search
230
-------
PRP Search Manual
September 2009
party cannot be considered an orphan. Refer to the
discussion in subsection 3.3.1 of this manual under the
heading "Need for PRP Financial Information,"
4.7
Perform Waste
Stream
Analyses
In some cases where documentation is very limited as to the nature
and volume of wastes disposed of at a site, a waste stream analysis
of the industrial activities conducted at the site is performed and
the resulting information is entered into a transactional database.
This analysis encompasses data derived from industrial surveys,
process chemistry analyses, and waste stream inventory
documentation.
4.7.1
Industrial
Surveys
The primary focus of an industrial survey is to identify parties who
owned or operated the site and may have contributed hazardous
substances to the site. This is accomplished through surveying
local businesses, reviewing government records, and reviewing
various industrial manuals and directories. This task is particularly
useful when little information is available on the site from
documents, interviews, and other sources as addressed previously
in this manual, or when the site is in an area where neighboring
facilities may have contributed to the contamination. If the site is
located in a large metropolitan area, hundreds of industries could
be PRPs.
4.7.2
Process
Chemistry
Analysis
The objective of a process chemistry analysis is to identify the
nature and volume of wastes attributable to specific industries or
companies. This determination is very important when little
documentation exists to indicate who disposed of the wastes at a
site. This task is usually conducted, however, only when the site
has a history of receiving wastes from off-site generators. A
thorough knowledge of industrial technology is essential for the
analysis, which should be performed by an environmental scientist
or process chemistry engineer.
Chapter 4: Follow-up PRP Search
231
-------
PRP Search Manual
September 2009
Local industries are grouped according to products generated.
Wastes associated with the production of those products are
subsequently compared to contaminants found at the site. Once
the person conducting the PRP search establishes a link between an
industry and wastes disposed of at the site, additional data
gathering efforts can be initiated to further define an identified
company's specific waste generating and handling activities.
4.7.3
Waste Stream
Inventory
The primary objective of performing a waste stream inventory is to
compile an accurate list of wastes that were stored or disposed of
at a site. This is accomplished by reviewing all waste stream
records, operating log books, and analytical reports. This task may
be required to determine the types and quantities of waste
contributed by each PRP. Knowing the types of waste disposed of
at a site is necessary to establish a relationship between the site
and the PRPs. When a complete inventory of wastes is developed,
it can be used in conjunction with process descriptions and
industrial surveys to identify parties that may have been involved in
disposal activities at the site. Before initiating a waste stream
inventory, the investigator must know the locations and types of
detected contamination.
In some cases, waste output models of a party's production facility
are used. For example, if a facility manufactures 50 units in a
given year with a corresponding by-product of two gallons of
hazardous materials, then in the absence of other information it
may be assumed that two gallons of by-product were generated in
a recordless year if manufacturing remained at 50 units.
4.7.4
Mine Sites
For mine, mill, and smelter sites, it is important to evaluate the
quantity of hazardous substances that might be released through
various media, including acid generation potential and wind
transport of dusts. Many mine sites have long histories and have
Chapter 4: Follow-up PRP Search
232
-------
PRP Search Manual
September 2009
been owned or operated by many parties. Since technologies for
the extraction and processing of ores have improved, it may be
appropriate to allocate response costs on the basis of volume and
toxicity with earlier operations bearing a larger share. Due to the
complexity of mining issues, a mining expert might need to be
retained.
4.8
Interim-Final
Report
Preparation and
Review
Some but not all regions prepare an interim-final report, which is
an expanded version of the baseline report that includes substantial
information on generators and transporters and focuses specifically
on establishing liability and financial viability. The format for the
interim-final report is the same as for the baseline report. Section
3.10 of this manual contains a more complete discussion of the
suggested report format.
An interim-final PRP search report:
• provides justification for notice to a party of potential
liability;
• identifies owner/operators and persons who arranged for
treatment or disposal, such as generators and transporters;
• serves to support litigation;
• meets special notice requirements;
• provides information to negotiate settlement terms or take
unilateral enforcement action;
• lists parties who were considered possible PRPs during the
course of the search but were dropped from consideration
for notice; and
documents why parties are no longer considered PRPs.
Chapter 4: Follow-up PRP Search
233
-------
PRP Search Manual
September 2009
In general, the interim-final PRP search report should be completed
in time for the issuance of SNLs and the release of information
under CERCLA Section 122(e), which includes the PRP names and
addresses and the volume and nature of the substances at the site.
4.8.1
Interim-Final
Report Followup
Information on new PRPs, as well as additional evidence on the
liability of existing PRPs, may be uncovered after the completion of
the interim-final report. Therefore, unless there is a full
settlement, the search may not end with the completion of the
interim-final report, the issuance of general and special notice
letters, or the release of the contractors from a work assignment.
Keep this in mind when planning and implementing a PRP search.
4.9
Pursue
Litigation and
Cost Recovery
CERCLA Section 106 and 107 Litigation7
In the case of a cost recovery referral, EPA sends a direct cost
referral package to DOJ for litigation. In selecting sites at which to
pursue cost recovery, EPA places a priority on sites at which more
than $200,000 were spent on the response action. As DOJ
develops the case, regional staff will likely be called upon to
perform litigation support activities. These may include consulting
with case attorneys on technical issues, reviewing PRP liability
evidence, attending depositions, and testifying in court. The RPM
or OSC often will budget for and manage litigation support
contractors. At a minimum, cost recovery litigation requirements
include:
• ensuring that the PRP search includes (to the extent EPA
determines necessary) the entire universe of PRPs, PRP
7 If PRPs do not agree to perform work, whether it's the RD/RA, a removal, or RI/FS,
EPA's first and strong preference is to issue a UAO. If EPA fails to reach an agreement with the
PRPs to conduct the work, EPA should issue a CERCLA Section 106 UAO to all appropriate PRPs
ordering them to conduct the response action. If the PRPs fail to comply with the UAO, EPA may
initiate ajudicial action requesting injunctive relief and/or CERCLA Section 106 penalties for
noncompliance. EPA may also initiate a Fund-financed response action.
Chapter 4: Follow-up PRP Search
234
-------
PRP Search Manual
September 2009
liability information that meets evidentiary standards, and
thorough and accurate financial analyses;
• ensuring that the administrative record is complete;
• documenting costs and work performed which are attributed
or allocated to the site, including both direct and indirect
costs;
• perfecting liens;
• sending demand letters; and
• negotiating with PRPs to try to obtain a settlement, thereby
avoiding the need for a referral and litigation.
Litigation is not the preferred route, but it is available if necessary
to get site remediation started or to recover the Agency's response
costs. In either case, a thorough PRP search is essential to the
success of negotiation or litigation.
Cost Recovery
There are five contexts in which the Agency traditionally recovers
its costs:
1. If the Agency funds a removal or RI/FS and the PRPs agree
to perform the RD/RA, the Agency may recover its past
costs as part of the RD/RA settlement.
2. If the Agency funds a removal or the RI/FS and one group of
PRPs agrees to perform the RD/RA while another group of
viable PRPs does not agree to do so, the Agency may sue
the non-settlors separately for unreimbursed response
costs.
Chapter 4: Follow-up PRP Search
235
-------
PRP Search Manual
September 2009
3. If the Agency funds the RD/RA because there was no
settlement, it may seek all costs in a cost recovery action.
4. Where the time between the completion of a removal,
RI/FS, or RD and the initiation of on-site construction is
likely to exceed three years, EPA may sue for past costs and
seek a declaratory judgment on liability.
5. Where there are multiple remedial operable units, EPA may
pursue cost recovery at the first operable unit and seek
declaratory judgment on liability for its costs at subsequent
operable units, assuming that the operable units share the
same set of PRPs.
Bankruptcy, or the possibility of bankruptcy, can arise in any of
these contexts. It is always advisable to perfect Superfund liens
early to strengthen EPA's claims in the event the owner
subsequently files for bankruptcy. For more bankruptcy
information, regional attorneys should consult A Bankruptcy Primer
for the Regional Attorney (February 1994) and their regional
bankruptcy coordinators.
Statute of Limitations
CERCLA Section 113(g)(2) states that a cost recovery action must
be commenced:
• for a removal action, within three years after completion of
a removal action, except that such cost recovery action
must be brought within six years after a determination to
grant a waiver under CERCLA Section 104(c)(l)(C) of this
title for continued response action; and
• for a remedial action, within six years after initiation of
physical on-site construction of the RA, except that if the
remedial action is initiated within three years after the
Chapter 4: Follow-up PRP Search
236
-------
PRP Search Manual
September 2009
completion of the removal action, costs incurred in the
removal action may be recovered in the cost recovery
action.
While CERCLA outlines the general parameters for timing of a cost
recovery action, there are a number of site-specific issues that may
be involved in determining when the statute of limitations (SOL)
runs. Further consultation may be necessary to resolve these
issues. For example, under CERCLA Section 113(g)(2)(B), removal
costs may be pursued as part of the cost recovery for remedial
action if the remedial action is initiated within three years of
completion of the removal.
At sites where there has been a series of remedial and removal
actions, close attention must be paid to the SOL for each action.
(See CERCLA Section 121(f)(l)(F) (notification of state, including
tribes) and CERCLA Section 122(j)(l) (federal natural resource
trustee including DOJ/BIA for tribes) for additional information
related to SOLs.)
Once the Agency's costs have been documented and the PRPs are
sufficiently identified, EPA sends demand letters to the PRPs. The
demand letters notify the PRPs of their liability for EPA's cleanup
costs. If negotiations result in a settlement, EPA and the PRPs may
enter into an AOC or CD whereby the PRPs agree to reimburse EPA
for its costs. If total U.S. government response costs at the site
exceed $500,000 (excluding interest), DOJ must concur on the
terms of the settlement.
If one or more PRPs fail to reimburse EPA for the costs itemized in
the demand letter(s), EPA may forward a referral to DOJ
recommending litigation for cost recovery. Cost recovery actions
for removals should be referred to DOJ as soon as possible after
completion of the removal action, and ideally within one year after
Chapter 4: Follow-up PRP Search
237
-------
PRP Search Manual
September 2009
the completion date (unless the region plans to recover removal
costs at the same time as remedial costs under CERCLA Section
113(g)(2)(B) because it expects the RA to begin within three years
of completion of the removal action). In all cases, removal cost
recovery actions should be referred to DOJ no later than six months
before the SOL will expire. Cost recovery actions for remedial
actions should be referred to DOJ at the time of initiation of
physical on-site construction of the RA.
When the statute of limitations deadline is near and the claim has
not been settled or filed, the case team may consider entering into
a tolling agreement with the PRPs. A tolling agreement is an
agreement by the parties to extend the statute of limitations either
for a specified period or until a specified event occurs. The period
or the event is defined in the tolling agreement. A tolling
agreement must be signed by DOJ on behalf of the government and
must be signed by the PRPs. The effect of the tolling agreement is
to provide additional time to work out a settlement in a case by the
mutual agreement of the parties. Typically, the PRPs that enter
into a tolling agreement do not admit liability, retain all their
defenses to liability, do not agree to pay anything to the federal
government, and do not compromise any of their existing legal
rights. These extended negotiations do not always result in a
settlement, but a tolling agreement can be useful when it appears
that further discussion among the parties may be productive.
Cost Recovery for Removals
Completing a removal will generally trigger an action to recover the
costs of the removal. EPA will seek recovery of all costs if the
removal was Fund-lead, or oversight costs if it was performed by
the PRPs pursuant to a unilateral administrative order (UAO). As a
general rule, cost recovery cases involving post-SARA removals
(except those with CERCLA Section 104(c)(l)(C) waivers) must be
Chapter 4: Follow-up PRP Search
238
-------
PRP Search Manual
September 2009
filed within three years of completion of the removal. If a remedial
action is initiated within three years after the completion of the
removal action, however, removal costs may be recovered in the
RA cost recovery action, but will not be in every instance. The facts
of a particular case frequently dictate when the "completion" of a
removal has occurred at a site, and when the statute of limitations
begins to run. In general, however, the date of demobilization of
cleanup personnel at a site, usually evidenced by a Pollution Report
or Removal Closeout Memorandum, may indicate that the removal
action has been completed. In this instance, the actual date of
demobilization, not the date of the Report or Memorandum,
represents the date of completion. Due to the fact-intensive nature
of removal completion determinations, however, OSRE or OGC
should be consulted whenever concern exists regarding the SOL for
cost recovery. This is because an incorrect determination as to
when removal completion occurred will very likely bar the Agency
from recovering its costs.
Cost Recovery for Sites in the Remedial Process
Cost recovery activities at sites in the remedial process are a
function of past expenditures for removals, RI/FS, or RD; the
outcome of RD/RA negotiations; and timing concerns related to the
SOL date triggered by "initiation of physical on-site construction" of
the RA.
"Initiation of physical on-site construction" represents the date
when cleanup personnel went on site and undertook some type of
physical activity, such as erecting a fence or installing utilities, that
initiated the remedial action. Included among activities that do not
constitute physical on-site construction are actions of an
administrative nature, such as hiring contractors. Similar to the
removal completion determination, the facts of the case are
Chapter 4: Follow-up PRP Search
239
-------
PRP Search Manual
September 2009
important, such that OSRE or OGC must be consulted when concern
exists regarding the determination of physical on-site construction
for SOL purposes. The physical on-site construction determination
is critical, because a mistaken determination will likely bar the
Agency from recovering its costs.
Chapter 4: Follow-up PRP Search
240
-------
PRP Search Manual
September 2009
Name
CHAPTER 4 REFERENCES
Section
Location
Information Requests - 104(e) 4.1
Question Categories
Model Administrative Order for 4.2
CERCLA Information Requests
(September 30, 1994)
Civil Monetary Penalty Inflation Rule 4.2
Final Model Litigation Report and 4.2
Complaint for CERCLA Section 104(e)
Initiative (January 1990)
Recommendations Concerning the Use 4.3
and Issuance of Administrative
Subpoenas under CERCLA Section 122
(August 30, 1991)
Guidance on Use and Enforcement of 4.3
CERCLA Information Requests and
Administrative Subpoenas
(August 25, 1988)
Federal Rules of Civil Procedure, Rule 4.4
27
General Policy on Superfund Ability to 4.5.1
Pay Determinations
(September 30, 1997)
Model Notice Approving Reduction in 4.5.1
Settlement Amount Based on Inability
to Pay (April 30, 2008)
Model Notice Denying Reduction in 4.5.1
Settlement Amount Based on Inability
to Pay (April 30, 2008)
http://www.epa.gov/compliance/resou
rces/publications/cleanup/superfund/1
04e/index.html
http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
modao-cerinf-mem.pdf
40 C.F.R. Part 19
http://ecfr.gpoaccess.gov
http://intranet.epa.gov/oeca/osre/
docs.html
http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
subpoena-cercla-mem.pdf
http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
cerc-infreq-mem.pdf
28 U.S.C. App.
http://www.uscourts.gov/rules/CV200
8.pdf
http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
genpol-atp-rpt.pdf
http://www.epa.gov/compliance/resou
rces/policies/cleanup/superfund/app-
B-arc.pdf
http://www.epa.gov/compliance/resou
rces/policies/cleanup/superfund/app-
D-arc.pdf
Chapter 4: Follow-up PRP Search
241
-------
PRP Search Manual
September 2009
Name
CHAPTER 4 REFERENCES
Section
Location
Interim Guidance on the Ability to Pay
and De Minimis Revisions to CERCLA §
122(g) by the Small Business Liability
Relief and Brownfields Revitalization
Act (May 17, 2004)
Enforcement Economic Models
Individual Ability To Pay Claim
(INDIPAY) Financial Data Request
Form
Ability To Pay Individual Request for
Information
Individual Ability To Pay Claim
Financial Data Request Form
Financial Disclosure Statement To Be
Completed by Individual Defendant
EDGAR
Potentially Responsible Party Internet
Information Sources (PRPIIS)
Interim Enforcement Discretion Policy
Concerning "Windfall Liens" Under
Section 107(r) of CERCLA
(July 16, 2003)
Interim Guidance on Orphan Share
Compensation for Settlors of Remedial
Design/Remedial Action and Non-
Time-Critical Removals (June 4, 1996)
Addendum to the Interim CERCLA
Settlement Policy Issued on
December 5, 1984
(September 30, 1997)
4.5.1 http://www.epa.gov/compliance/resou
rces/policies/cleanup/superfund/atp-
demin-122g-04.pdf
4.5.2 http://www.epa.gov/compliance/civil/
econmodels; http://www.indecon.com
/iec_web/econmodels/practice/models
4.5.2 Appendix G
4.5.2 Appendix H
4.5.2 Appendix I
4.5.2 Appendix J
4.5.2 http://www.sec.gov/edgar.shtml
4.5.2 Appendix F
4.5.3 http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
interim-windfall-lien.pdf
4.6 http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
orphan-share-rpt.pdf
4.6.1 http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
adden-settle-mem.pdf
Chapter 4: Follow-up PRP Search
242
-------
Appendix
Performance Work Statement for
Enforcement Support Services A
Checklist of PRP Search Tasks B
Checklist for Removal/Pre-Remedial Sites C
Quick Reference Guide for Using
CERCLIS/WasteLAN D
PRP Search Enhancement Team E
Potentially Responsible Party Internet
Information Sources (PRPIIS) F
Individual Ability to Pay Claim
Financial Data Request Form G
Ability to Pay Individual Request for Information H
Individual Ability to Pay Claim
Financial Data Request Form [
Financial Disclosure Statement
To Be Completed By Individual Defendant J
Acronyms and Abbreviations K
Glossary L
Chapter References M
-------
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY
PERFORMANCE WORK STATEMENT
for
ENFORCEMENT SUPPORT SERVICES
[Date]
-------
TABLE OF CONTENTS
Acronyms iv
Introduction and Background 1
Purpose 2
Scope 2
Contractor Qualifications 2
General Requirements 3
Technical Requirements 3
Task 1-Potentially Responsible Party (PRP) Searches 3
1.1 Overview 3
1.2 Information Gathering/Records Collection Activities 4
1.3 PRP Name and Address Verification 7
1.4 Correspondence Tracking and Transaction Reports 7
1.5 Analysis of PRP Search Information for Evidence of Liability 8
1.6 Development of Waste-in Lists, Volumetric Ranking Reports,
and Waste-in Transact!onal Reports from PRP Search Activities 9
1.7 Corporate Research and Financial Assessments 10
1.8 Investigations 13
1.9 Title Searches 14
1.10 CERCLA Section 106 General/Special Notice and
Section 104(e) Information Request Letter Support 16
1.11 PRP Search Reports 17
Task 2 - Expedited PRP Search Support 17
TaskS - Expedited General Enforcement Support 19
3.1 Service of Process and Other Documents 19
3.2 Filing of CERCLA Liens 20
3.3 Filing of Deed Restrictions 20
3.4 Freedom of Information Act Support 21
Task 4 -Negotiation Support 21
Task 5 - Litigation Support 23
5.1 Referral Support 23
5.2 Evaluation of Cost Information 24
Task 6 - Cost Recovery Support 24
6.1 Cost Documentation and Redaction 24
6.2 Closeout Memoranda Support 25
11
-------
Task 7 - Community Involvement Support 26
7.1 Public Meeting Support 26
7.2 Fact Sheet Production 27
7.3 Public Notices 28
7.4 Mailing Lists 29
7.5 Community Involvement Plans 30
7.6 Congressional Briefing Books 30
7.7 General Community Involvement Administrative Support 31
Task 8 - Project Management, Planning and Support 31
8.1 Project Management, Planning and Support 31
8.2 Quality Assurance 33
Incentives/Disincentives for Activities Conducted Under This Contract 34
Attachment: Government Quality Assurance Surveillance Plan 35
in
-------
ACRONYMS
A
AA
ADR
AO
AOA
AOC
AR
ARAR
ARCS
ATP
ATSDR
B
BIA
BLM
BODR
BPA
BRAC
BUREC
C
CA
CAA
CAG
CB
CIC
CIP
CBI
CD
CERCLA
CERCLIS 3/
WasteLAN
CFR
CI
CO
COI
COR
CRC
CRT
CSA
CT
CWA
Assistant Administrator
Alternative Dispute Resolution
Administrative Order
Advice of Allowance
Administrative Order on Consent
Administrative Record
Applicable or Relevant and Appropriate Requirement
Alternative Remedial Contracting Strategy
Ability to Pay
Agency for Toxic Substances and Disease Registry
Bureau of Indian Affairs
Bureau of Land Management
Basis of Design Report
Blanket Purchase Agreement
Base Realignment and Closure
Bureau of Reclamation
Cooperative Agreement
Clean Air Act
Community Advisory Group
Case Budget
Community Involvement Coordinator
Community Involvement Plan
Confidential Business Information
Consent Decree
Comprehensive Environmental Response, Compensation, and Liability Act
Comprehensive Environmental Response, Compensation, and Liability
Information System/Waste Local Area Network
Code of Federal Regulations
Civil Investigator
Contracting Officer
Conflict of Interest
Contracting Officer's Representative
Cost Recovery Coordinator
Community Relations Implementation
Chemical Safety Audit
Counter Terrorism
Clean Water Act
IV
-------
D
DD
DNAPL
DOT
DOJ
DQO
Decision Document
Dense Non-Aqueous Phase Liquid
Department of the Interior
Department of Justice
Data Quality Objective
EA Endangerment Assessment
EAB Environmental Appeals Board
EE/CA Engineering Evaluation/Cost Analysis
EPCRA Emergency Planning and Community Right-to-Know Act of 1986
EPA Environmental Protection Agency
EPM Enforcement Proj ect Manager
ERCS Emergency Response Cleanup Services
ERNS Emergency Response Notification System
ESI Expanded Site Inspection
E
FCOR Final Closeout Report
FE Federal Enforcement
FEMA Federal Emergency Management Agency
FMD Financial Management Division
FMO Financial Management Office
FOIA Freedom of Information Act
FR Federal Register
FS Feasibility Study
FSP Field Sampling Plan
FY Fiscal Year
FWS Fish and Wildlife Service
G
GFO
GNL
Good Faith Offer
General Notice Letter
H
HASP
HRS
I
IAG
IEUBK
IFMS
IMC
Health and Safety Plan
Hazard Ranking System
Interagency Agreement
Integrated Exposure Uptake Bio-Kinetic
Integrated Financial Management System
Information Management Coordinator
-------
L
LDRs
LOE
LIRA
M
MOA
MOU
MPE
MSW
Land Disposal Restrictions
Level of Effort
Long-Term Response Action
Memorandum of Agreement
Memorandum of Understanding
Multi-Phase Extraction
Municipal Solid Waste
NEAR Non-Binding Preliminary Allocation of Responsibility
NCP National Contingency Plan (National Oil and Hazardous Substances Pollution
Contingency Plan) (Abbreviated as National Contingency Plan in this document)
NEIC National Enforcement Investigation Center
NMFS National Marine Fisheries Service
NOAA National Oceanic and Atmospheric Administration
NOD Notice of Deletion
NOID Notice of Intent to Delete
NOIPD Notice of Intent for Partial Deletion
NOPD Notice of Partial Deletion
NPL National Priorities List
NRC National Response Center
NRT-1 National Response Team Hazardous Material Emergency Planning Guide, 03/87
NRT-1A National Response Team Criteria for Review of Hazardous Materials Emergency
Plans, 05/98
NRRB National Remedy Review Board
NTC Non-Time-Critical
O
O&F Operational and Functional
O&M Operation and Maintenance
OC Office of Compliance or Office of the Comptroller
OE Office of Enforcement
OECA Office of Enforcement and Compliance Assurance
OERR Office of Emergency and Remedial Response
OGC Office of General Counsel
OIRM Office of Information Resources Management
OLS Office of Litigation Support
OMB Office of Management and Budget
OPA Oil Pollution Act
OSC On-Scene Coordinator
OSHA Occupational Safety and Health Administration
OSRE Office of Site Remediation Enforcement
OSWER Office of Solid Waste and Emergency Response
VI
-------
ou
OWPE
P
P&C
PCOR
FDD
PNRS
PO
POLREP
PPA
PPED
PRN
PRP
PWS
Q.
QA
QA/QC
QAO
QAPP
QAPP/FSP
QC
R
RA
RAC
RAGS
RAR
RCRA
RD
RD/RA
RSD
REM
RI
RI/FS
RO
ROD
RPM
RRT
S
SAIC
SAP
SARA
SCAP
Operable Unit
Office of Waste Programs Enforcement
Participate and Cooperate
Preliminary Closeout Report
Pre-Authorization Decision Document
Preliminary Natural Resource Survey
Project Officer
Pollution Report
Prospective Purchaser Agreement
Policy and Program Evaluation Division
Pre-Referral Negotiation
Potentially Responsible Party
Performance Work Statement
Quality Assurance
Quality Assurance/Quality Control
Quality Assurance Office
Quality Assurance Project Plan
Quality Assurance Project Plan/Field Sampling Plan
Quality Control
Remedial Action or Regional Administrator
Response Action Contract
Risk Assessment Guidance for Superfund
Remedial Action Report
Resource Conservation and Recovery Act
Remedial Design
Remedial Design/Remedial Action
Regional Support Division
Remedial Engineering Management
Remedial Investigation
Remedial Investigation/Feasibility Study
Regional Ombudsman
Record of Decision
Remedial Project Manager
Regional Response Team
Special-Agent-In-Charge
Sampling and Analysis Plan
Superfund Amendments and Reauthorization Act of 1986
Superfund Comprehensive Accomplishments Plan
vn
-------
SCORPIOS
SDMS
SE
SEP
SIP
SMOA
SMP
SNAP
SNL
SPCC
SOL
SOW
SPIM
ssc
START
I
TAG
TBC
TOM
TRT
TSCA
TST
U
UAO
USAGE
use
USCG
USGS
V
VCP
VE
VOC
w
WasteLAN
Superfund Cost Recovery Package Imaging and Online System
Superfund Document Management System
State Enforcement
Supplemental Environmental Project
Site Inspection Prioritization
Superfund Memorandum of Agreement
Site Management Plan
Superfund National Assessment Program
Special Notice Letter
Spill Prevention Controls and Countermeasures
Statute of Limitations
Statement of Work
Superfund/Oil Program Implementation Manual
Superfund State Contract
Superfund Technical Assistance and Response Team
Technical Assistance Grant
To Be Considered
Contract Manager
Technical Review Team
Toxic Substances Control Act
Technical Support Team
Unilateral Administrative Order
United States Army Corps of Engineers
United States Code
United States Coast Guard
United States Geological Survey
Voluntary Cleanup Program
Value Engineering
Volatile Organic Compound
Waste Local Area Network
Vlll
-------
PERFORMANCE WORK STATEMENT
for
ENFORCEMENT SUPPORT SERVICES
INTRODUCTION AND BACKGROUND
For enforcement support services performed pursuant to this Performance Work Statement (PWS),
the Contractor shall perform in accordance with all environmental statutes as appropriate [e.g.,
Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), Emergency
Planning and Community Right-To-Know Act (EPCRA), Superfund Amendments Reauthorization Act
(SARA), Resource Conservation and Recovery Act (RCRA), Clean Air Act (CAA), Clean Water Act
(CWA) and Toxic Substances Control Act (TSCA), or successor statutes.
Successful completion of enforcement activities at Superfund sites requires close coordination of
these activities in concert with other site events. The pace of enforcement activities is often dictated by
removal actions, mandatory notice to Potentially Responsible Parties (PRPs), public comment periods,
and statutes of limitation (SOLs). Each of the enforcement support activities listed in this PWS is
interrelated with, and dependent upon, the others. Site complexities such as divisibility of harm, multiple
operable units, and both cooperative and recalcitrant PRPs at the same site make it difficult to delineate
the end of one enforcement activity and the beginning of another. Enforcement should be considered an
ongoing process rather than a discrete event. Each activity has a direct bearing on the others, and
successful performance of each activity is essential to the successful completion of all activities.
Therefore, in order to provide any of the activities below, the Contractor must be capable of providing
them all.
Project planning and managerial support is an essential part of the PRP search planning process and
describes potential roles and responsibilities of parties involved and shall be included as an ongoing part
of all tasks listed in this PWS. Project planning and support includes all technical and managerial
activities required to plan and implement all work required under this Contract. Each time the
government issues a Task Order, the Contractor shall submit a Staffing Plan/Cost Estimate (SP/CE),
incorporating the proposed personnel that will be working on the project and an itemized estimate of the
cost to complete the work.
For the purpose of this PWS, the words "The Contractor" shall mean that the firm that is selected
for this procurement. Any and all services or products shall be delivered in compliance with all
applicable federal, state, and local laws, regulations, guidance and policies and will be adjusted to reflect
those applicable laws, regulations, guidance, and policies which become effective after the effective date
of the Contract. A collection of federal environmental laws, regulations, and non-binding guidance
documents may be accessed at http://www.epa.gov/epahome/lawregs.htm.
Contractors may access web sites for individual states and or/local jurisdictions at their appropriate
web sites for relevant laws, regulations, and policy documents.
Analysis and/or recommendations provided to EPA under the Contract, by a Contractor, may be
used by the Agency; however, a Contractor shall not make any decisions or assist in the development of
1
-------
policy documents for the Agency. The Contractor shall explain to outside parties, at the onset of
communications, that they are Agency Contractors.
PURPOSE
The purpose of the Contract is to provide legal enforcement support services to the Agency for
activities described within this PWS. The purpose of this PWS is to set forth the performance
requirements, performance standards, monitoring methods, acceptable quality limits, and
incentives/disincentives for work performed under the Contract.
SCOPE
This Contract provides for legal enforcement support activities as defined in the PWS and further
identified in specific Task Orders.
Enforcement activities under this PWS include PRP search activities at all site types. These sites
include, but are not limited to: sites recently proposed to or finalized on the NPL; sites where PRP search
activities are ongoing; and, sites where the PRP search activities are necessary to meet current
enforcement needs, (e.g., information needed to support an orphan share determination).
While the PWS is structured by specific technical requirements, enforcement support activities may
overlap different technical requirements within this PWS. The Contractor shall submit all analyses,
options, recommendations, reports and any other work products in draft form for review by the EPA
Contract Officer's Representative (COR) prior to use or distribution. The government will make all final
regulatory, policy, and interpretative decisions resulting from Contractor-provided advice and assistance
under this PWS, as well as all final decisions regarding compliance determinations, or the existence or
violations of, an order, law, regulation, etc.
This PWS contains Performance Requirements, Performance Standards, the Acceptable Quality
Level (AQL) for work performed, the Monitoring Methods to be utilized by the government, and
Incentives/Disincentives for Contractor performance. The government reserves the right to modify the
Performance Standards during the life of this Contract in order to ensure that the right outcomes are being
realized and that the Performance Standards are appropriate. Any changes will be accomplished via a
bilateral Contract modification. The government reserves the unilateral right to change its monitoring
methods specified herein consistent with the inspection rights already provided to the government under
the Inspection of Services clause, and may reduce the level of surveillance as a reward, if the Contractor
consistently meets the Performance Standards. Technical Requirements under the Contract include the
tasks described in detail below.
CONTRACTOR QUALIFICATIONS
• Staff with basic knowledge of the Superfund/CERCLA process.
• Staff skilled in research techniques, including internet searches and public records
• Staff skilled in database management for mailing lists, volumetric rankings, desk-top publishing,
graphics for presentations, and fact sheets.
• Staff skilled in producing material for the public that communicates complex technical environmental
information in language understandable to the lay reader.
-------
• Staff experienced with meeting planning and logistics.
• Staff skilled in developing communication strategies and planning public involvement activities.
• Office located in Denver metropolitan area.
GENERAL REQUIREMENTS
• Furnish all personnel, services, materials, and equipment to perform the enforcement support activities
described in the PWS and as specified in Task Orders by CORs.
• Maintain technical and financial records as specified in the Contract and by the COR.
• Receive Task Orders via individual site-specific Task Orders.
• Track and bill costs site-specifically to facilitate cost recovery efforts.
TECHNICAL REQUIREMENTS
• Expertise in conducting Potentially Responsible Party (PRP) Searches at various types/complexity of
sites, including mining sites, multiple generator sites, etc.
• Develop Staffing Plans/Cost Estimates with 10 days of Task Order acceptance, or within 48 hours for
expedited enforcement support activities
• Capability to start work on the assigned task, when necessary, under expedited conditions
• Expedited General Enforcement Support Activities
• Negotiation Support
• Litigation Support
• Cost Recovery Support
• Community Involvement Support
• Project Management and Planning
TASK1 POTENTIALLY RESPONSIBLE PARTY (PRP) SEARCHES
1.1 OVERVIEW
The purpose of a PRP search is to gather evidentiary information on PRPs that may be liable for
actions conducted under CERCLA. From the notification of a release through the remedial action,
identification of, and communications with, the PRPs are essential in determining the strategy for a
cleanup. When appropriate, and as identified in a Task Order, the Contractor shall conduct PRP search
activities with the PRPs and/or the PRPs' contractor where the PRPs and EPA are jointly performing PRP
search activities.
All Staffing Plans/Cost Estimates for PRP search activities described in this PWS shall be written so
as to provide enforcement support and perform all PRP search activities in accordance with the three
program guidance documents listed below.
Potentially Responsible Party (PRP) Search Manual, September 2003, supersedes the PRP Search
Manual, August 27, 1987 (9834.3-1 A) and the PRP Search Supplemental guidance for Sites in the
Superfund Remedial Program, June 29, 1989 (9834.3-2a) published by the U.S. Environmental Protection
Agency's former Office of Waste Programs Enforcement. The PRP Search Manual can be accessed on-
line at: http://www.epa.gov/compliance/resources/publications/cleanup/superfund/prpmanual/index.html.
-------
Guidance on Preparing and Releasing Waste-in Lists and Volumetric Rankings to 1991 PRPs
Under CERCLA. can be found in the PRP Search Manual, September 2003, Chapter 3, Section 3.8. A
direct reference to that particular policy can be found at:
http://www.epa.gov/compliance/resources/policies/cleanup/superfund/guide-volumet-rpt.pdf.
Elements of Liability Under Section 104,106, and 107 of CERCLA, U.S. Department of Justice,
(Current edition)
In planning and implementing PRP Search support activities, the Contractor shall ensure
consistency with EPA-developed plans guiding site enforcement activities which may be in existence,
such as a Site Management Plan, PRP Search Plan, etc.
Any deliverable submitted under this Contract shall be of acceptable quality, which means that, the
deliverable:
• demonstrates a good command and usage of the English language (e.g., discussion of facts flow
in a coherent and organized manner);
• demonstrates use of proper grammar (noun and verb tense correspond, etc.); and,
• is free of incomplete sentences and misspelled words.
All deliverables, unless directed differently in the individual Task Order, shall be printed double-
sided. Sensitive information is properly labeled.
The government may order all or parts of a PRP Search and/or corresponding section(s) of a PRP
Search. Thus, the Contractor may be required to perform any (or all) of the Baseline Tasks and
Specialized Tasks described in the September 2003 PRP Search Manual (chapter 3, Section 3.10 for
baseline tasks), which lead to the production of a PRP Search Report. These tasks are consolidated and
summarized below:
1.2 INFORMATION GATHERING/RECORDS COLLECTION ACTIVITIES
In accordance with the September 2003 PRP Search Manual, preliminary information gathering
tasks of a PRP Search generally include interviewing government officials and private parties, records
collection activities, conducting industrial surveys, and developing site histories. The information
obtained during this phase will be used to produce a written history of the site. The Contractor may be
tasked with performing some or all of the following activities.
Performance Requirements:
The Contractor shall identify Agency, state and local government officials and interview them in order to
obtain information on: (1) the existence of relevant documents such as site records, permits, and clean-up
orders, hauler's licenses, business licenses, landfill permits, zoning permits, building permits, zoning
ordinances, and compliance history; and, (2) the names of individuals who may be knowledgeable about
the site (e.g., current and former site employees who may have information regarding site operations). If
directed to do so by EPA, the Contractor shall interview private individuals regarding site history and
operations.
-------
The Contractor shall search for and obtain copies of federal, Agency, state and local government
documents, and documents located at the site that provide relevant information on the activities that have
taken place at the site. The Contractor shall review relevant business records in order to document
potential liability in accordance with CERCLA Section 107(a), to document PRPs' volumetric
contribution, and the PRPs' ability to pay.
The Contractor shall have the capability to photocopy documents, sometimes at remote locations. The
Contractor shall assess and provide a written recommendation as to whether site records to be reviewed
are contaminated by hazardous wastes. The Contractor shall have the capability to handle contaminated
documents, and to safely transport and/or store such records should the situation arise. The Contractor
shall undertake all appropriate measures to protect the health and well-being of its employees in these
situations, including training in the proper handling of contaminated records.
The Contractor shall conduct industrial surveys, and incorporate relevant information into the PRP Search
Report, or as otherwise directed.
Based on information obtained during the PRP Search activities, the Contractor shall prepare and deliver
to the government a written "Site History", including operational and compliance histories, which shall be
incorporated into the PRP Search Report.
The Contractor shall report relevant findings to the government as required under the site-specific Task
Order and incorporate the information into the PRP Search Report, or as otherwise directed.
The Contractor shall save and manage the copies of relevant documents obtained under this subtask in
accordance with the information management requirements detailed in this PWS and the EPA site-
specific Task Order.
Performance Standards:
The information gathered demonstrates that the Contractor has conducted interviews in accordance with
proper interview standards set forth in applicable Federal and State rules of evidence and relevant
interpretive case law concerning collection, chain of custody, credibility, and admissibility. Interviews
shall be documented in a Memorandum of Interviews, summarizing information and/or documents
acquired.
Each document shall be assigned a unique tracking number, and specific information about the document
is recorded, including the document's date, record type, author, recipient, and subject. Information
gathered may include: licenses, permits, inspection reports, contamination or environmental studies,
sampling data, and memoranda and correspondence between site owners/operators and government
officials which would document a PRP's compliance history.
Relevant documents are copied and incorporated into reports in a manner consistent with Agency
guidance on reproduction and document record collection activities in PRP Search Reports set forth in the
September 2003 PRP Search Manual. Records collected shall be organized in a manner compatible with
the Region's Superfund filing structure and, at a minimum, identify each document by its source, location,
provider, and legal status (i.e., original, certified copy, true copy, etc.). Documents shall be indexed in
-------
conformance with Regional and national standards, as outlined in EPA Superfund Standard Operating
Procedures.
The Contractor shall take all appropriate actions to ensure and protect the health and well being of its
employees, and in the safe handling and transport/storage of contaminated records.
The Contractor shall research records such as industrial directories, Chamber(s) of Commerce records,
business school libraries, insurance company maps, city directories, aerial photograph collections, urban
archives, and the Internet, where deemed necessary.
The report shall conform to the format and content standards for a "Site History" as outlined in the
September 2003 PRP Search Manual.
Supporting documents cited in the report (e.g., government documents, title search documents, and
interview summaries) shall be correctly identified in accordance with the information management
requirements of the site-specific Task Order.
All work shall be performed and draft final reports shall be delivered in accordance with the deadlines
outlined in the Task Order. Costs shall be within the amount of the approved budget ceiling.
Acceptable Quality Level (AOL):
The Contractor has contacted and interviewed government officials and other individuals (with prior
authorization from the COR) that have information relevant to the site and/or have had direct involvement
with the site and knowledge of site operations. The Contractor has included this information in a draft
PRP Search Report, or as otherwise specified by the EPA COR.
The Contractor has identified and obtained, or made copies of, all relevant records for the site and has
incorporated relevant information into a draft PRP Search Report, or as otherwise directed by the EPA
COR. The PRP Search Report adheres to the performance standards listed above.
EPA-approved site-specific Health and Safety Plans are prepared prior to the handling, transport, storage,
and/or review of contaminated records.
All errors and corrections noted by the COR on the draft deliverables have been addressed and corrected.
Monitoring Method:
EPA will review the documentation and the Memoranda of Interviews in order to determine whether there
are other sources of information that need to be researched.
When necessary, EPA shall review and approve the site-specific Health and Safety Plan prior to the
Contractor handling contaminated records. EPA will review the list of records acquired in order to
determine whether all appropriate records have been collected.
The EPA COR and Site Attorney will review the Contractor's draft and final reports for use and
incorporation of verified facts, and will note progress during the reporting period on the monthly
progress reports.
-------
1.3 PRP NAME AND ADDRESS VERIFICATION
The Contractor shall assist the Agency in gathering accurate contact information for PRPs that will
facilitate in mailings, settlement negotiations, and cost recovery actions.
Performance Requirements:
The Contractor shall maintain a current, up-to-date list of PRPs' names, addresses, and other contact
information (e.g., address, phone number, attorney's name, address, and phone number) which will enable
EPA to serve enforcement-related correspondences. The Contractor shall verify the accuracy of the
PRPs' addresses prior to the mailing of any correspondence and shall notify the EPA COR of any
correspondence that is returned undeliverable.
Performance Standards:
The contact list identifies the name, address, and other contact information for all PRPs and the current
CEO/manager, or provides a brief notation explaining why the information is unavailable. For all
corporate PRPs, the list identifies the corporate address, registered agent, officers, mergers, name
changes, dissolutions, and date of in corporation. The work is performed in accordance with the schedule
outlined in the Task Order. Costs are within the approved budget ceiling.
Acceptable Quality Level (AQL):
No more than 5% of enforcement correspondence is returned as undeliverable due to a bad address.
Monitoring Method:
Through self-inspection, the Contractor shall sample up to 10% of the addresses to ensure the accuracy of
the information. The EPA COR may perform a random sampling of up to 10% of the PRP Name and
Address verification and check for accuracy. The EPA COR will note any unacceptable performance on
the Contractor's monthly Performance Evaluation Sheet.
1.4 CORRESPONDENCE TRACKING AND TRANSACTIONAL REPORTS
The Contractor shall assist the Agency in the development of databases that track contact with PRPs
and transactional data related to individual PRPs.
Performance Requirements:
When required, the Contractor shall maintain a Correspondence Tracking System (CTS) that contains data
extracted from information provided by PRPs in response to inquiries by EPA.
When required, the Contractor shall prepare and deliver to the government a Transactional Report which
shall consist of information extracted from written documents such as, but not limited to, waste manifests,
invoices and/or witness testimony to establish time frames, wastes or material contaminated, individual
and/or facilities involved, and volumetric values.
Performance Standards:
The CTS can produce reports that contain PRP contact information with verified addresses, dates of
mailings, receipt dates of responses, depositions, interview summaries, etc.
-------
The Transactional Report contains and summarizes, by generator: document types, manifest number or
other identifying number, shipment dates, waste types, volumes, volume conversions, and transporter
name(s). The report contains 100% accurate information. The report is submitted in accordance with the
Task Order requirements and deadlines. Costs are within the amount of the approved budget ceiling.
Acceptable Quality Level (AQL):
Challenges made by PRPs regarding the volume attributed to them do not result in changes to the waste
allocation for that PRP due to duplication of entries, transposed numbers, wrong information, etc.
Monitoring Method:
The Contractor, through self-inspection, shall review all of the information submitted on the Transactional
Report to ensure that the report contains no grammatical or typographical errors. The EPA COR may
perform a random sampling of up to 25% of the information to ensure that the standards have been met.
1.5 ANALYSIS OF PRP SEARCH INFORMATION FOR EVIDENCE OF LIABILITY
The Contractor shall collect and summarize information in support of enforcement actions to be
taken by the Agency.
Performance Requirements:
The Contractor shall analyze and organize the information obtained during PRP Search activities in
accordance with the rules of evidence, CERCLA elements of liability, and applicable case law. The
Contractor shall provide a written summary of the information gathered during the PRP search in the form
of evidence summary sheets and shall analyze the information for evidentiary value, strength, and
admissibility.
The Contractor shall make written recommendations as to the classification of each "person" [as defined
in CERCLA section 101(e)(21)] identified during the research into appropriate PRP categories for EPA
consideration an approval based on CERCLA Section 107(a).
Performance Standards:
Deliverables demonstrate that the Contractor performed in accordance with proper investigative
standards, given applicable federal and state rules of evidence and relevant interpretive case law
concerning collection, chains-of-custody, credibility, and admissibility. Deliverables are submitted in
accordance with Contract and Task Order requirements and deadlines. Costs are within the amount of the
approved budget ceiling.
Acceptable Quality Level (AQL):
The draft and final deliverables adhere to the format and content standards as defined in the PWS.
MONITORING METHOD:
The EPA COR and Site Attorney will review the draft and final reports, and shall rate the Contractor's
performance on the monthly Performance Evaluation Sheet.
-------
1.6 DEVELOPMENT OF WASTE-IN LISTS, VOLUMETRIC RANKING REPORTS, AND
WASTE-IN TRANSACTIONAL REPORTS FROM PRP SEARCH ACTIVITIES
As required, the Contractor shall provide technical support to EPA in the areas of chemical
processes, chemical fate, waste modeling, and the development of transact!onal databases to support EPA
during the PRP search and in the analysis and development of waste-in information.
Performance Requirements:
The Contractor shall develop and submit for the EPA COR's approval, a set of site-specific Protocols to
be applied in the review of supporting documents and allocation of waste volume to PRPs.
The Contractor shall develop, operate, and maintain an electronic database which contains information
needed to produce Waste-in Lists, Volumetric Ranking Reports, and Waste-in Transactional Reports.
The Contractor shall prepare and deliver to the government an accurate inventory of wastes that were
generated at, transported to, stored, or disposed of at a site in the form of a computer-generated listing of
the volume and nature of hazardous substances contributed by each PRP identified at a site, noting any
weaknesses in data.
The database shall be functional and compatible with EPA software. If requested, the Contractor shall
install the database (with edit capability) on the EPA COR's computer or designated laptop computer, and
provide training on its use.
Performance Standards:
Protocols are adhered to in all cases where possible. If a particular transaction presents an exception to
the protocols, the Contractor brings it to the attention of the EPA COR and Site Attorney for a
determination on how to proceed. The protocols incorporate standard unit conversion factors.
The Waste-in List accurately represents the supporting documentation in the file. The report identifies the
specific sources of information (e.g., waste stream records, government records, interview reports, etc.)
used to attribute volumes of waste to each PRP. The record number assigned to it under the site
information management system identifies each document source. All double counts are identified (i.e.,
waste shipments attributed to both generators and transporters).
The report summarizes analyses performed to estimate volumes of hazardous waste attributable to PRPs
including chemical processes, chemical fate, and waste modeling. The report presents stoichiometric
calculations, analysis of material balances, and interpretation of process engineering data about
manufacturing processes employed by PRP generators.
The Waste-in List states all clarifying assumptions made during compilation in accordance with the
"Generally Accepted Waste-in List and Volumetric Ranking Assumptions," in the September 2003 PRP
Search Manual. The Waste-in List document summarizes analyses performed to estimate volumes of
hazardous waste attributable to PRPs, including stoichiometric calculations, analysis of material balances,
and interpretation of process-engineering data about manufacturing processes employed by PRP
generators.
-------
The Volumetric Ranking conforms to the Contractor proposed, government-approved report format. The
Volumetric Ranking Report created for release to PRPs satisfies 100% of the information-release
requirements of CERCLA Section 122(e)(l)(C).
The database is functional and compatible with EPA software. If requested, the Contractor has installed
the waste-in database on the EPA COR's computer or designated laptop computer, and provides training
on its use, if needed. The database is completed within the proscribed schedule detailed in the Task
Order. Costs are within the amount of the approved budget ceiling.
Acceptable Quality Level (AQL):
Less than 5% of the data input into the database is incorrect. Challenges to the Waste-in List are
defensible, i.e., challenges made by PRPs regarding the volume attributed to them do not result in changes
to the waste allocation for that PRP due to duplication of entries, transposed numbers, wrong PRP, etc.
Monitoring Method:
The government may review the Contractor's self-inspection records and may independently verify the
accuracy of waste-in data entries against a random sampling of transact!onal source documents from
which the volumes were derived.
The EPA COR may perform a random sampling of up to 10% of the information to ensure that the
standards have been met. The EPA COR will review the draft and final reports and the Contractor's
monthly progress reports.
1.7 CORPORATE RESEARCH AND FINANCIAL ASSESSMENTS
Financial Assessments. The Contractor will be required to provide support to the Agency, when
necessary, in building a case involving parent corporation, subsidiary liability, and ability-to-pay
analyses. The estimated twelve-month caseload is six different cases during any given 12-month period
of the Contract. Of these six cases, EPA expects that 4 of the cases will be simple or routine cases, 1 case
will be of intermediate complexity, and 1 case will be complex. One or more of the complex cases may
require Contractor support at pretrial depositions or at trial.
Property Appraisals. The Contractor shall arrange for appraisals of real and personal property, as
requested. The estimated 12-month caseload is 1-2 appraisals.
Property Surveys. The Contractor shall arrange for property surveys, as requested. The estimated 12-
month caseload is 1.
Performance Requirements:
The Contractor shall perform corporate research and conduct or arrange for a financial analysis when
required and, as directed, submit a report to the government assessing each PRP's ability to pay for
clean-up activities at a site. [PRPs include individuals, partnerships, corporations ("profit" and "non-
profit"), trusts, municipalities, and other legal entities.]
The Contractor may be asked to perform one or more of the tasks described below in support of EPA
enforcement activities involving a particular Superfund site. The degree of detail required in any given
financial analysis will depend on the circumstances surrounding the case, and may require only a Ben &
10
-------
Abel analysis, or a more thorough analysis of a PRP's involvement with multiple partnerships,
corporations, trusts, etc. The following tasks describe the type of activities that may be assigned.
Financial Analysis of Individuals: The Contractor shall analyze the ability of individual PRPs (including
sole proprietors or business partners) to contribute to financing response costs at a Superfund site. The
Contractor will use individual tax returns, individual financial statements and other financial information
provided by the PRP to EPA, as well as available public documents, to provide EPA with advice
regarding the PRP's ability to contribute to response costs at the site.
Financial Analysis of Business PRPs: The Contractor shall analyze the ability of business PRPs to
contribute to financing response costs at a Superfund site. The Contractor shall use Federal tax returns,
business financial statements, and other financial information provided by the PRP to EPA. In addition,
the Contractor shall use available public documents and other sources of business information, as
applicable to the business PRPs, to provide EPA with advice regarding the PRP's ability to contribute to
response costs at the site.
Financial Analysis of Government Organizations: The Contractor shall analyze the ability of PRPs who
are government organizations, such as municipalities, counties, state agencies or universities, to contribute
to financing response costs at a Superfund site. The Contractor shall use financial statements and other
financial information provided by the PRP to EPA, as well as available public documents, and shall apply
principals of government finance to provide EPA with advice regarding the PRP's ability to contribute to
response costs at the site.
Financial Analysis of Non-profit Organizations: The Contractor shall analyze the ability of PRPs who are
non-profit organizations, either government or non-governmental organizations, such as educational
institutions, hospitals, and service organizations, to contribute to financing response costs at a Superfund
site. The Contractor shall use financial statements and other financial information provided by the PRP to
EPA, as well as available public documents, and shall apply accounting principals applicable to non-profit
organizations to provide EPA with advice regarding the PRP's ability to contribute to response costs at
the site.
Review and Analyze Financial Assurance Documents: The Contractor shall review and analyze financial
assurance documents provided to EPA by PRPs to fulfill financial responsibility obligations under
Superfund settlements. The Contractor will advise EPA whether the economic assumptions used to
calculate the present value of the cost estimates are acceptable or unrealistic and whether the financial
assurance documents satisfy EPA's criteria for acceptability of such financial assurance documents, based
on the requirements established by the EPA enforcement attorneys working on the case and EPA
CERCLA financial assurance guidance.
The Contractor may be asked to assist EPA in reviewing the following types of financial assurance
documents: trust agreements, surety bonds, letters of credit, and corporate guarantees or self-guarantees,
using an EPA financial test method or other method of financial assurance as requested by EPA.
Financial Analysis of Complex Corporate Organizations: The Contractor shall research and analyze the
history and organizational structure of complex corporate organizations. The Contractor will use
corporate Federal tax returns, other available financial statements and other information provided by the
PRP to EPA. In addition, the Contractor will use available public documents and other sources of
11
-------
business information. The Contractor will assist EPA in understanding the relationships among existing
corporations and their potential liability for Superfund response costs. The analyses may focus on a
variety of issues such as an analysis of the operation and control of a PRP by another person, the ability of
a person to undercapitalize a PRP, an evaluation of the fair market value of related-party transactions, the
ability of a PRP to limit or reduce its earnings for the benefit of a different person, and the ability of a
PRP to transfer an investment or other asset to an entity that may not be subject to CERCLA authority.
Assist with Settlement Negotiations with Superfund PRPs: The Contractor shall assist EPA enforcement
teams (including DOJ enforcement attorneys) with negotiations with PRPs regarding financial issues in
Superfund enforcement cases. This assistance may include assistance in drafting information requests and
interrogatories, reviewing draft settlement documents, participating in conference calls and meetings with
PRPs, and providing advice to EPA and DOJ attorneys during depositions.
Provide Expert Witnesses in Administrative Hearings or Judicial Cases: If required, the Contractor shall
provide financial analysts qualified to testify as expert witnesses in mediation, administrative hearings, or
judicial trials in Superfund enforcement cases. The financial analysts shall assist EPA and DOJ
enforcement attorneys to prepare for administrative and civil litigation of financial issues, including
preparing expert reports and affidavits, reviewing documents provided by defense counsel and drafting
questions for examining defense witnesses.
Review Compliance with Superfund Settlements and Orders: If required, the Contractor shall assist EPA
enforcement staff in reviewing compliance with Superfund settlements and orders involving financial
issues (including financial assurance issues). Such compliance reviews may
include assisting EPA to calculate the economic benefit derived by liable parties from non-compliance
with CERCLA requirements.
Develop and Test Financial Analysis Tools: The Contractor may be asked to work with the Office of Site
Remediation Enforcement (OSRE) and Regional case teams to develop and test the usefulness of financial
analysis tools (such as spreadsheets and databases) in the context of providing financial analysis expert
support for Superfund cases.
The Contractor shall submit all work products for review and approval to the COR. The appropriate EPA
enforcement case staff person and the COR will review all deliverables in draft form and provide
revisions and/or comments to the Contractor. The Contractor shall prepare the final deliverables
incorporating EPA's comments. EPA will make all final determinations and decisions after a critical and
close review of the Contractor's work product. All work products resulting from the performance of this
contract are the property of EPA. The Contractor shall not publish or otherwise release, distribute, or
disclose any work product generated under this contract without obtaining EPA's express written
approval.
Provide Property Appraisals: The Contractor shall provide property appraisals by a licensed individual
that is certified and qualified to perform property appraisals for contaminated properties.
Provide Property Surveys: The Contractor shall provide property surveys by a licensed, certified
surveyor.
12
-------
Reports:
In most cases the Contractor will be asked to provide written reports of the analysis conducted and the
Contractor's advice to EPA. The Contractor shall use all available relevant information, including
documentation received from the PRP. The Contractor shall document all aspects of any analyses
performed under the contract, in order to maintain a clear and complete record that reflects the process by
which the Contractor reaches its conclusions.
The Financial Reports shall generally: (a) summarize the substance of the financial issues being
addressed; (b) list documents received from EPA or from a third party (such as a PRP) which were
reviewed and formed a basis for the financial analysis; (c) describe the methods of financial analysis used
to arrive at recommendations; (d) identify relevant EPA guidance documents and how they were applied
in the analysis and recommendations; (e) explain policy or action alternatives, if any; and, (f) otherwise
make clear the methods and considerations upon which recommendations are based.
Performance Standards:
The financial assessment report includes the name, address, and phone number of the entity analyzed,
identification of its officers, dates and place of incorporation, corporate status, and Registered Agent,
where applicable. If required, the Contractor has provided a financial assessment of each PRP's ability -
to-pay based upon standard Accounting and Finance measures of income, solvency, and asset valuation.
The financial assessment report cites all sources of financial information used in the assessments. The
report discusses all limitations regarding the information used in the assessments and any assumptions
made. The report provides a risk assessment and analysis of EPA's risk in accepting payments from the
PRPs.
If an appraisal on contaminated property is required, the individual selected to perform such appraisal has
knowledge of CERCLA and has experience in the unique considerations necessary for evaluation of
contaminated properties.
Property surveys have been conducted by licensed surveyors and reports shall include Plat maps and a
narrative legal description of the property. Qualifications of the surveyor are noted in the report.
All schedules and deadlines stated in the Task Order are met. Costs are within the amount of the
approved budget ceiling.
Acceptable Quality Level (AOL):
The draft and final reports adhere to the format and content standards as defined in the PWS. The
deliverables provide the analysis and products defined in the Task Order. Work is completed in
accordance with the defined schedules and deadlines in the Task Order, and costs are within the approved
budget ceiling.
Monitoring Method:
The EPA COR will review the Contractor's draft and final reports and the monthly progress reports.
1.8 INVESTIGATIONS
During the course of PRP searches, it is routinely necessary to obtain and develop information from
parties not known at the outset of the search.
13
-------
Performance Requirements:
The Contractor shall identify and pursue investigative leads, including locating individuals who may be
knowledgeable about the site operations and waste-handling practices (e.g., current and former site
employees), as well as PRPs (individuals and businesses) and their assets.
The Contractor shall prepare and submit a list of individuals and former employees that may have
knowledge relating to the site operations to EPA prior to conducting interviews with them. When
directed, the Contractor shall make all reasonable attempts to locate and contact former employees for
interviewing. The Contractor shall submit a list of interview questions to the EPA COR for approval
prior to conducting the interviews. As required by the individual Task Order, the Contractor shall
conduct recorded interviews and transcribe the recording of the interview, and/or provide audio/audio-
visual recordings. The Contractor shall prepare a report summarizing each of the interviews conducted,
noting any discrepancies in information and what actions were taken to resolve or substantiate the
discrepancies. The Contractor, when appropriate, shall have the means to secure the services of a licensed
private investigator.
When required, the Contractor shall provide testimony regarding PRP search activities conducted by the
Contractor in support of EPA's CERCLA 104(e) enforcement actions.
Performance Standards:
The list of potential individuals and former employees to be interviewed contains names, current or last
known addresses and phone numbers, and indicates the relevant knowledge the individual is expected to
provide, as well as the questions to be asked of the individual.
The deliverable demonstrates that the Contractor conducted the investigations in accordance with: (a)
proper investigative standards set forth in applicable federal and state rules of evidence and relevant
interpretive case law concerning collection, chains-of-custody, credibility, and admissibility; and, (b) the
scope, application, and specific provisions of CERCLA Section 104(e) relating to the investigative
jurisdiction of EPA. The report contains a detailed summary of the information obtained (including all
opinions, comments, and statements of the interviewee, whether or not erroneous).
The work is performed in accordance with the schedule and deadlines specified in the Task Order. Costs
are within the approved budget ceiling.
Acceptable Quality Level (AOL):
The final report adheres to the above standards.
All errors or corrections noted by the EPA COR on the draft report have been addressed and corrected in
the final report.
Monitoring Method:
The EPA COR will review the draft and final reports and the Contractor's monthly progress reports.
1.9 TITLE SEARCHES
The purpose of this task is to provide the government with information about owners, lessees, and
operators at a site that will assist in the issuance of CERCLA Section 106 Notice Letters.
14
-------
Performance Requirements:
The Contractor shall conduct a title search in order to identify past and present site owners, as well as
owners of properties adjacent to the site which fall within the jurisdiction of EPA, and deliver to the
government a Title Search Report summarizing the ownership history of the property(ies) involved. The
Contractor shall conduct lessee/operator searches. If requested, the Contractor shall provide a preliminary
title report establishing current ownership within the time frame identified in the Task Order.
The Contractor shall analyze the contents of the documents located for information which will aid in
identifying and issuing notice letters to owners and operators, as defined in CERCLA Section 107(a).
When required, the Contractor shall prepare and provide site parcel overlays on aerial photography, using
such means as GIS software and drafting software.
Performance Standards:
The Title Search Report summarizes the ownership history of the property, identifying current and past
owners of the site property, as well as properties located adjacent to the site, as required. The report
indicates that the Contractor has reviewed title documents relevant to the site which establish an
ownership or possessory interest in the property.
The report presents the site's location on county parcel maps and available aerial photographs, as
required, and cites the legal description of the property, including the metes and bounds description. The
Contractor has reviewed the metes and bounds description to assure the property falls within the site
boundaries.
The report contains a chronological list, title tree and/or organizational chart (presented graphically), and
copies of all relevant recorded documents including: the site property(ies) legal description(s); warranty,
grant or quitclaim deeds; mortgages or liens; deeds of trust; easements; covenants; leases; trustee's deeds;
administrator's and executor's deeds; financing statements; judgments; real estate contracts; subdivision
plats; and, other title instruments relating to the site.
The report summarizes research conducted, including document sources researched, information obtained,
follow-up actions required and/or recommended, and "dead-end" leads. The report outlines the title
history of each parcel.
For mine sites, the report summarizes the history of patented and unpatented mining claims, including an
alphabetical list and copies of relevant documents including: (1) Bureau of Land Management
Documents (master title plats, use plats, historical indexes, mining claim indexes, serial register pages,
case files, survey plats, individual control documents, such as patents, public land orders, secretarial
orders, and survey notes); (2) Minerals Management Service Documents; (3) Uniform Commercial Code
Filings; and, (4) County Records (deeds, assignments, mortgages, assessment work for unpatented
mining claims, land valuation and appraisal data, ownership plats, tract or abstract indexes,
grantor/grantee indexes, mortgagor/mortgagee indexes, and miscellaneous indexes that may contain
information on leases, judgments, liens, encumbrances, royalty agreements, UCC filings, and zoning).
The work is performed in accordance with the schedule and deadlines specified in the Task Order. Costs
are within the approved budget ceiling.
Acceptable Quality Level (AOL):
The legal description is accurate. Accurate shall mean that the legal description is free from errors and is
15
-------
defensible. The Contractor has reviewed the information, and has included this information in a draft
Title Search Report, or as otherwise directed by the EPA COR. The draft and final Title Search Reports
adhere to the above performance standards.
Monitoring Method:
The EPA COR will review the Contractor's draft and final reports for use and incorporation of verified
facts, and the Contractor's monthly progress reports.
1.10 CERCLA SECTION 106 GENERAL/SPECIAL NOTICE AND SECTION 104(e)
INFORMATION REQUEST LETTER SUPPORT
The purpose of this task is to provide formal notification to PRPs of their potential liability for a
site and to request information from persons with knowledge about site operations and hazardous
substance management practices at the site, as well as to the ability of a PRP to pay for or conduct
cleanup of the site.
Performance Requirements:
The Contractor shall provide administrative and technical support in the preparation and mailing of
CERCLA Section 104(e) Information Request letters and/or General/Special Notice letters, as defined in
CERCLA Section 122. Support may include the preparation of routine administrative -type letters (non-
decision making) based on a model or template provided by the Agency.
The Contractor shall collect and compile the PRPs' responses to Information Request letters and provide
to the government a written summary and analysis of the responses in the PRP Search Report.
As directed, the Contractor shall compile, review, and prepare background summaries supporting
enforcement referrals to the Department of Justice.
The Contractor shall develop, maintain, and operate a data base to track the mailing of correspondence to
each PRP and receipt of their responses to the 104(e) Information Request letters and Notice letters. PRP
information and lists shall be maintained in a format which allows easy electronic transfer to EPA's
CERCLIS data base.
Performance Standards:
The CERCLA Section 104(e) Information Request letters and Notice Letters contain accurate information
with no typographical errors, and the 104(e) responses are accurately summarized. Mailings are
completed within the schedule and deadlines designated by the Task Order.
The correspondence tracking database is kept updated with new information as it becomes available. The
Contractor is able to produce correspondence tracking reports on individual PRPs if requested by the EPA
COR. The Contractor has conducted research to try to locate the current address for any correspondence
returned as undeliverable, and has notified the EPA COR of all dead ends.
The work is performed in accordance with the schedule and deadlines specified in the Task Order. Costs
are within the amount of the approved budget ceiling.
16
-------
Acceptable Quality Level (AQL):
Prepared letters are free of grammatical and spelling errors and look professional.
No more than 5% of mailed correspondence is returned as undeliverable due to a bad address.
Monitoring Method:
The EPA COR will review the Contractor's monthly progress reports.
1.11 PRP SEARCH REPORT
The Contractor shall organize the information collected during the course of the tasked PRP search
activities described above into a PRP Search Report that conforms to the standards described in the
September 2003 PRP Search Manual.
Performance Requirements:
The Contractor shall deliver to the government a PRP Search Report which contains comprehensive
evidentiary information on PRPs gathered while performing subtasks 1.2 through 1.10 above.
Performance Standards:
The PRP Search Report conforms to the format and content standards outlined in EPA's PRP Search
Manual issued in September of 2003. Supporting documents cited in the report are identified correctly in
accordance with the information management requirements of the PWS.
The report demonstrates that the Contractor conducted the PRP search in accordance with proper
investigative standards, given applicable Federal and State rules of evidence and relevant interpretive case
law concerning collection, chains-of-custody, credibility, and admissibility. The PRP Search Report is
delivered within the schedule and deadline specified in the Task Order and is under the approved budget
ceiling.
Acceptable Quality Level (AOL):
All due dates/schedules and deadlines specified in the TO have been met. The draft and final reports
adhere to the format and content defined in the PWS. No more than 10% of government review
comments on the draft deliverable address substantive legal deficiencies. All work has been submitted
within the specified deadlines stated in the Task Order and costs are within the approved budget ceiling.
MONITORING METHOD:
The EPA COR and Site Attorney will review the draft and final reports and the Contractor's monthly
progress reports.
TASK 2 EXPEDITED PRP SEARCH SUPPORT
Occasionally, EPA requires PRP search support on an expedited basis. Such work may include any
of the tasks described under Task 1, but most likely will be limited to, records collection, title searches,
interviews, corporate and financial research and assessment of PRPs, the filing of liens, service of
documents on PRPs, and other abbreviated PRP search work activities. These assignments are usually of
short duration and of lesser monetary value, and require a quick turnaround.
17
-------
Performance Requirements:
The Contractor shall be capable of providing all PRP search activities described under Task 1 above in an
expedited manner, when required. Expedited PRP search support may include, but is not limited to:
records collection, title searches, interviews, financial research and the collection and analysis of financial
information relating to ability-to-pay assessments of individual and corporations, corporate research and
file evidence summary, and notice letter preparation.
Within two (2) days after receiving oral or written notification from the Contract Manager, the Contractor
shall initiate the requested expedited PRP search support activity. However, the Contractor shall not
proceed until it has provided the EPA COR with an expedited staffing plan, a statement that it can meet
the deadlines set forth in the Task Order or has provided a proposed deadline for completion of the work,
and an estimate of the cost the Contractor feels will be required to complete the activity. EPA will follow
up its direction with written requests/approvals. Occasionally, the Contractor may be asked to initiate the
expedited PRP Search Support activity with less than the 2-day notification.
The Contractor shall identify available personnel with Level C health and safety training and necessary
equipment, in accordance with OSHA requirements found in 29 CFR 1910.120, in order to respond on a
contingency basis.
The Contractor shall have in place streamlined procedures for health and safety planning, conflict of
interest certification, and quality assurance.
The Contractor shall have in place administrative and accounting procedures for expedited assignments,
which shall be the same for any other Task Order. However, the Contractor shall expedite the application
of those procedures in order to ensure the performance is consistent with the established deadlines.
Performance Standards:
The applicable standards for performing expedited PRP Search work are found in Task 1, Sections 1.1
through 1.11 above.
Written deliverables are provided in accordance with the schedule and deadlines stated in the Task Order.
Costs are within the amount of the approved budget ceiling.
Acceptable Quality Level (AOL):
Performance standards for PRP Search work detailed in Sections 1.1 through 1.11 above are met.
No more than 25% of government review comments on the draft deliverable address substantive legal
deficiencies. All corrections and errors have been addressed in the final deliverable.
All work is performed and deliverables submitted in within the deadlines stated in the Task Order and
costs are within the approved budget ceiling.
Monitoring Method:
The EPA COR and Site Attorney will review the draft and final deliverables and the Contractor's monthly
progress reports.
18
-------
TASKS EXPEDITED GENERAL ENFORCEMENT SUPPORT
The Contractor shall provide technical and administrative assistance to EPA in arranging for the
service of Information Request Letters, General/Special Notice letters and other documents, and the filing
of liens and deed restrictions in an expedited manner. While specific subtasks required under Task 3 are
detailed below, each subtask has common requirements.
General Performance Requirements:
Within two days (48 hours) after receiving oral or written notification from the Contracting Officer, the
Contractor shall initiate the requested expedited PRP search support activity. However, the Contractor
shall not proceed until it has provided the EPA COR with an expedited staffing plan, a statement that it
can meet the deadlines set forth in the Task Order or has provided a proposed deadline for completion of
the work, and an estimate of the cost the Contractor feels will be required to complete the activity. EPA
will follow up its direction with written requests/approvals. In an emergency situation, it is possible that
the Contractor may be asked to initiate the expedited Enforcement Support activity, based upon oral
notification from the Contracting Officer, within less than the 48-hour timeframe.
The Contractor shall submit a Letter Report, including appropriate supporting documentation,
that evidences that the task has been completed.
General Performance Standards:
The Contractor has in place administrative and accounting procedures for expedited assignments, which
shall be the same for any other Task Order. The Contractor has expedited the application of those
procedures in order to ensure the performance is consistent with the deadlines established in the Task
Order.
Acceptable Quality Level (AOL):
The Letter Report contains documentation/representations evidencing that the task has been completed.
The work is performed in accordance with the schedule and deadlines outlined by the Task Order, and
costs are within the approved budget ceiling.
Monitoring Methods:
The EPA COR will review the Letter Report to verify that the task was completed and the Contractor's
monthly progress report.
More specifically, when ordered, the Contractor shall perform the following general expedited
enforcement support activities.
3.1 SERVICE OF PROCESS AND OTHER DOCUMENTS
Performance Requirements:
The Contractor shall assist in arranging for the legally-correct service of various enforcement-related
documents, including information requests, notice letters, demand letters, subpoenas, orders, summons,
and complaints on various parties. The Contractor shall locate interested parties and properly serve or
deliver to them, or arrange for the service/delivery by the local Sheriffs office or a process server.
Service of documents shall be conducted in accordance with Federal Rules of Civil Procedure, local court
19
-------
rules, and other EPA procedures. If requested, the Contractor shall provide for overnight or same day
delivery service.
The Contractor shall be prepared to complete and submit an affidavit, or certificate of service or other
document to serve as evidence of service, or obtain such documents from the individual serving the
documents, and provide it in a Letter Report to the EPA COR.
Performance Standards:
The Contractor's efforts have met the general performance standards mentioned above.
The Letter Report contains an affidavit, or certificate of service, or other document to serve as evidence of
service, in accordance with Federal Rules of Civil procedure and local court rules.
The work is performed in accordance with the schedule and deadlines stated in the Task Order, and costs
are within the approved budget ceiling.
Monitoring Methods:
The EPA COR will review the Letter Report to verify that the documents were properly served and are
documented. The EPA COR will review the Contractor's monthly progress report.
3.2 FILING OF CERCLA LIENS
Performance Requirements:
When requested, the Contractor shall assist the government in preparing Notices of Federal Liens and in
developing lien filing records. This effort shall include assisting EPA in determining the correct legal
description of the property EPA proposes to lien, and filing the lien for recording in the appropriate
jurisdiction in compliance with the particular rules of that jurisdiction.
The Contractor shall furnish EPA with a Letter Report that includes evidence that the lien has been
recorded, including a copy (a certified copy, if requested) of the recorded lien. The Contractor shall also
assist EPA in the removal of liens, when needed.
Performance Standards:
The Contractor's efforts have met the general performance standards mentioned above.
The Letter Report contains evidence that the lien has been filed and recorded, including a copy (a certified
copy, if requested) of the recorded lien.
The work is performed in accordance with the schedule and deadlines stated in the Task Order, and costs
are within the approved budget ceiling.
Monitoring Methods:
The EPA COR will review the Letter Report and the Contractor's monthly progress reports.
3.3 FILING OF DEED RESTRICTIONS
Performance Requirements:
The Contractor shall assist EPA in the preparation and filing of deed restrictions pursuant to CERCLA
20
-------
and State laws, including determining the correct legal description of the subject property, filing of the
deed restriction for recording, and may be required to monitor PRP compliance with the deed restriction.
The Contractor shall submit a Letter Report confirming the filing of the deed restrictions, including a
copy of the recorded deed restriction.
Performance Standards:
The Contractor's efforts meet the general performance standards mentioned above. The Letter Report
contains evidence that the deed restriction has been filed and recorded in the appropriate jurisdiction,
including a copy (a certified copy, if requested) of the recorded deed restriction.
The work is performed in accordance with the schedule designated by the EPA COR, or as outlined in the
EPA-approved work plan, and costs are within the amount of the approved budget ceiling.
Monitoring Methods:
The EPA COR will review the Letter Report and the Contractor's monthly progress reports.
3.4 FREEDOM OF INFORMATION ACT SUPPORT
Performance Requirements:
The Contractor shall support the agency in managing the FOIA process by conducting activities such as
retrieval of records, preparation of routine, non-judgmental correspondence, duplication/copying of
records (microfiche, microfilm, optical disk or other photo or electronic reproduction), and verification of
document filing. The Task Order will identify the nature of correspondence to prepare.
The Contractor shall NOT: 1) interpret the FOIA request letter; 2) determine where to look for responsive
records, except with respect to those files under the Contractor's control; 3) decide what records are
releasable; 4) prepare any correspondence except as directed by EPA; or, 5) sign correspondence.
Performance Standards:
Documents and other information requested are retrieved and provided to the EPA COR within the
schedule and deadlines specified in the Task Order, and costs are within the approved budget ceiling.
Acceptable Quality Limit (AQL):
All work efforts conform to the Performance Standard.
Monitoring Method:
The EPA COR will monitor the Contractor's prompt retrieval and delivery of the requested documents
and will review the Contractor's monthly progress reports.
TASK 4 NEGOTIATION SUPPORT
The Contractor may be asked to provide technical assistance to the Agency by providing data, for
use by program personnel, that will facilitate negotiations relating to: removals (emergency, time critical,
and non-time critical); a Remedial Investigation/Feasibility Study (RI/FS); a Remedial Design/Remedial
Action (RD/RA); Long Term Remedial Action (LTRA); Operation and Maintenance (O&M); cost
21
-------
recovery; and, claims defense. The Contractor may be asked to provide case support for liability and
viability analyses and cost documentation support. The Contractor will be required to provide technical
support to EPA during the development of EPA/DOJ's negotiating strategy and during EPA's
negotiations with PRPs. This may include the identification and procurement of expert witnesses and/or
expert's opinions in subjects relating to scientific, engineering, financial, and valuation specialties relating
to any tasks described in this PWS.
Performance Requirements:
As necessary, the Contractor shall be capable of performing the following negotiation support activities:
• summarizing draft orders, including collecting and analyzing information;
• reviewing and assisting in drafting technical support documents, which may include statements of
work to be performed by the PRP, work plans, or data submitted by PRPs;
• evaluating PRP offers and work plans to conduct the proposed response action;
• evaluating technical and financial capabilities of the PRP, the PRP's proposed consultant, and any
subcontractor(s) to adequately implement the proposed remedy or remedies;
• reviewing and evaluating financial information to determine completeness of costs and gathering
work-performed documentation;
• reviewing settlements, including mixed funding, and de minimis/de micromis settlements;
• publishing public meeting notices, and preparing responses to comments;
• collecting and developing information for the Agency's use in evaluating and preparing Preliminary
Non-Binding Allocations of Responsibility (NBARs);
• reviewing settlements involving cost recovery;
• coordinating natural resources damages aspects of settlements;
• verifying the compliance of a PRP's work plan with the requirements and schedules in pertinent
legal documents such as orders and decrees; and,
• other negotiation support activities that may be needed.
As required, the Contractor shall identify qualified experts that possess the special qualifications
needed by the Agency to support a particular enforcement action and provide the EPA COR with a letter
report that contains verified and accurate information on all of the final candidates. The Contractor shall
provide a matrix showing a basis for selection of a final candidate. The Contractor shall secure the
services of the individual(s) selected by EPA.
Performance Standards:
The Contractor has reviewed relevant documents and adhered to applicable Agency guidance in the
drafting of documents, publication requirements, evaluation and preparation of NBARs, and evaluation of
PRPs' proposals, staffing plans, and cost recovery settlements.
Experts are identified, located, and secured within the schedule and deadlines specified in the Task Order
or as designated by the court. The expert(s) hold the necessary credentials in the area specified. Costs are
within the approved budget ceiling.
Acceptable Quality Level (AOL):
Draft and final deliverables adhere to the format and content standards as defined in the PWS and/or Task
Order.
22
-------
All of the identified expert witnesses are fully qualified, hold the necessary credentials, and are available
and willing to provide testimony within the required time frame.
Any missing cost documentation has been identified and obtained, or if unobtainable, noted in the Letter
Report.
Monitoring Method:
The EPA COR will review the Contractor's draft and final deliverables and the monthly progress reports.
TASK 5 LITIGATION SUPPORT
The purpose of this task is to obtain non-personal professional and other services and products that
help attorneys acquire, screen, analyze, and organize evidentiary and other documents that assist in the
preparation of litigation reports to establish the prima facie case and serve as the recommended basis for
the EPA/DOJ-prepared complaint. Under this task, the Contractor will need to be capable of performing
all of the activities listed below.
5.1 REFERRAL SUPPORT
Performance Requirements:
The Contractor will assist in the development of referrals pursuant to CERCLA Sections 103, 104, 106,
107, 109, and 122. The Contractor shall assist in the assembly of all documents which support the
referral, including EPA-PRP contacts, sampling data, records collected during the PRP search, and
various legal instruments.
The Contractor will assist in the assembly of all documents which support the complaint and all discovery
requests. Data collection, management, review, and assessment will continue until the prima facie case is
determined by the Agency to be complete and PRP searches have been completed.
The Contractor shall utilize a document indexing system which will manage and track all evidence
collected and is compatible with the Regional Records Center's indexing system.
Performance Standards:
The Contractor has contacted and obtained, or made copies of, all relevant records and organized them in
the manner instructed by the EPA COR. The Contractor has reviewed the information, and has included
this information in a Letter Report or as otherwise directed by the EPA COR.
Acceptable Quality Level (AQL):
The Contractor is able to identify, collect, organize, and index documents required to support the referral
within the schedule and deadlines stated in the Task Order. Costs are within the approved budget ceiling.
Monitoring Methods:
The EPA COR may review the document index to verify that relevant documents are included. The EPA
COR will review the Contractor's monthly progress reports.
23
-------
5.2 EVALUATION OF COST INFORMATION
Performance Requirements:
In preparation of litigation referrals and during ensuing discovery/litigation, the Contractor shall assist
EPA in the compilation of cost packages which document costs expended for a particular site. The
Contractor shall conduct audits of information in the cost packages to identify and correct errors (i.e.,
costs incorrectly charged to a site, missing documentation, etc.), assist EPA in reconciling the cost
updates from EPA's current cost documentation packages, and assist in the collection of work-performed
documents. The Contractor shall document all discrepancies in the cost package in a Letter Report.
Performance Standards:
All relevant supporting documentation is located and included in the cost package. The Letter Report
outlines all mathematical errors and discrepancies identified in the cost package. The work is performed
in accordance with the schedule and deadlines stated in the Task Order, and costs are within the approved
budget ceiling.
Monitoring Methods:
The EPA COR will review the Letter Report and the Contractor's monthly progress reports. The COR
may review a random sampling of the cost package to verify accuracy of the Contractor's work.
TASK 6 COST RECOVERY SUPPORT
6.1 COST DOCUMENTATION AND REDACTION
The Contractor will be required to provide technical support to EPA, in conformance with EPA
guidance for collecting and securing evidence, in order to aid in cost recovery efforts.
Performance Requirements:
The Contractor shall perform a review and audit of the cost package(s) and provide their findings in a
Letter Report to the EPA COR. The Contractor shall produce a documentary audit trail to establish proof
of costs incurred using existing systems and other documentation and guidance.
The Contractor shall maintain an organized cost package or cost document file that includes cost
summaries for each cost element claimed, together with organized supporting documentation. More
specifically, the Contractor shall:
• Review all cost documentation and/or accounting procedures;
• Collect and summarize all available Superfund work-performed documents in support of the costs
included in the cost package, including documentation that describes the site specific response
actions (e.g., contractual, cooperative, and interagency agreements); and,
• Compare work-performed documents against the financial documents in the cost package to ensure
that all documented costs are supported.
In addition, the Contractor shall provide the following assistance to EPA, when requested:
• Provide technical support for data analysis of government-furnished documentation;
24
-------
• Provide assistance in developing proof to support allocation of non-site-specific charges on a site-
specific basis;
• Review and analyze audits or technical reports;
• Provide support in defense of claims for reimbursement under CERCLA, in support of preparation
by EPA for civil and administrative settlements, including pre-trial and auxiliary services, leading
to formal negotiations/meetings with private parties, and trial; and,
• Scan, OCR, index, input data into a database, and copy cost recovery documents, as requested.
Performance Standards:
The Contractor is knowledgeable with regard to cost packages and their four elements (evidence that:
work was tasked; work was performed; costs were incurred; and, costs were paid). The Contractor has
accumulated and verified all costs incurred in connection with a site or sites by reconciling all supporting
documentation with Agency data. The Contractor has identified to the Agency deficiencies in the cost
package and/or potential sources of challenges.
The Contractor has performed the above-mentioned requirements in accordance with EPA guidance
documents, including, Superfund Cost Recovery Referrals, September 6, 1983, OSWER Directive No.
9832.0; Superfund Cost Recovery Strategy, July 29, 1988; OSWER Directive No. 9832.13; and
Superfund Removal Procedures (Revision No. 3), February 1988, OSWER Directive No. 9360.0-3B
(versions may be updated).
The work is performed in accordance with the schedule and deadlines specified in the Task Order, and
costs are within the amount of the approved budget ceiling.
Acceptable Quality Level (AOL):
The Contractor's efforts adhere to the above Performance Standards.
The cost package contains no mathematical errors and all relevant documents that evidence work
performed and costs incurred are included in the cost package.
The work is performed in accordance with the schedule specified in the Task Order, and costs are within
the amount of the approved budget ceiling.
Monitoring Methods:
The EPA COR will review the Contractor's Letter Report and the Contractor's monthly progress reports.
The EPA COR may review random documents to verify the accuracy of the documentation against the
cost summary, and that work-performed documents are present to support the documented costs.
6.2 CLOSEOUT MEMORANDA SUPPORT
A Closeout Memorandum is EPA's cost recovery decision document (CRDD), which summarizes
the Agency's decision not to pursue further the recovery of certain costs incurred at a site. EPA will
prepare the Closeout Memorandum with technical assistance from the Contractor, where appropriate.
25
-------
Performance Requirements:
The Contractor shall provide technical and administrative assistance to the Agency in the review of
pertinent EPA files and collection of documents necessary to substantiate and support a Closeout
Memorandum.
Performance Standards:
The Contractor has reviewed Agency files and provided copies of relevant documents that will support
the recommendations in the Closeout Memorandum.
Work was performed and submitted within the schedules and deadlines stated in the Task Order, and costs
are within the approved budget ceiling.
Acceptable Quality Level (AQL):
The Contractor meets all performance standards.
Monitoring Methods:
The EPA COR will review the Contractor's monthly progress reports.
Task? COMMUNITY INVOLVEMENT SUPPORT
The Contractor shall assist the agency in community involvement activities, including, but not
necessarily limited to: making logistical arrangements for public meetings; development and
dissemination of presentation materials; assistance with meeting registration; and, note taking and/or
production of recorded documentation of the meeting.
7.1 PUBLIC MEETING SUPPORT
Under this task the Contractor will prepare for and provide support to EPA for public informational
meetings, work shops, site tours, and conferences.
Performance Requirements:
Logistical Support for Meetings: EPA community involvement coordinators (CICs) through the
Contracting Officer Representative (COR) will provide Contractor with the following information: date
of meeting, meeting location, court reporter/translator/speaker/security needs. Contractor will handle all
arrangements and report results to EPA. When required, the Contractor shall:
• Reserve and pay for meeting rooms;
• Assist with meeting registration and notes;
• Arrange and pay for audio-video equipment;
• Arrange and pay for court reporters and transcripts. (Assume two transcripts of 100 pages each.
Draft transcript to be provided EPA within 15 work days of the meeting. Final transcript to be
provided within 5 work days of receipt of EPA's revisions.);
• Arrange and pay for translators with audio equipment;
• Arrange and pay for expert speakers;
26
-------
• Arrange and pay for security; and,
• Arrange for transportation and other support for si
site tours.
Presentation Materials: The Contractor shall develop visual materials (slides, PowerPoint presentations,
signs, posters and/or other audio-visual materials). EPA's CIC, through the COR, will provide the
Contractor with information to be placed on slides, posters, and other audio-visual materials
Performance Standards:
Arrangements for meeting locations are convenient to the public and equipment/translators/ security are
available when and where needed. Transcripts/meeting notes are delivered within the proscribed time
frame. PowerPoint presentations, posters, and other audio-visual materials are of high quality and easily
understood.
Work is performed within the schedules and deadlines stated in the Task Order, and costs are within the
amount of the approved budget ceiling.
Acceptable Quality Level (AOL):
The Contractor meets all performance standards.
Monitoring Methods:
The EPA COR will review the Contractor's deliverables, as well as the monthly progress reports.
7.2 FACT SHEET PRODUCTION
Under this task the Contractor will provide the lay out for fact sheets, produce graphics, maps, and
pictures, and provide translation of fact sheets.
Performance Requirements:
Preparation of Fact Sheets: The Contractor shall prepare fact sheets, flyers, brochures, press packets, and
other materials as needed, for the public regarding Superfund activities. Written materials may include
information regarding the Superfund process, site history, upcoming site activities and opportunities for
public involvement, and information regarding the results of studies, as well as plans for remediation at a
particular site. The site CIC, through the COR, will furnish the text for the fact sheets. The Contractor
shall provide graphics at the direction of EPA. EPA shall approve the Contractor's drafts of fact sheets
and other public materials before distribution to the public. Fact sheets shall be produced using EPA's
approved format. Final fact sheets shall be provided to EPA in Microsoft Publisher. The Contractor shall
arrange to have fact sheets reproduced.
Translation of Fact Sheets: The Contractor shall provide translations of fact sheets, flyers and other
public materials (predominately Spanish translations), as requested. When EPA requests only translation
services, the site CIC, through the COR, will provide the Contractor with a hard copy, electronic copy, or
computer diskette of the fact sheet to be translated. The Contractor shall produce a translated version of
the fact sheet and provide EPA with electronic copy.
Generate Maps, Graphics, and Pictures for Publications: The Contractor shall generate maps, graphics,
and pictures for publications as requested by EPA
27
-------
Performance Standards:
Fact Sheets, flyers, brochures, press packets, and other written materials are of high quality, easily
understood by the target audience and are accurate. Graphics are colorful, relevant, dynamic, and
enhance the overall message presented. Written materials conform to EPA's preferred format, and are
provided in Microsoft Publisher. Translations are accurate in fact and grammatically correct. All maps,
graphics and pictures for publications are of high quality and relevant to the subject being discussed.
Work is performed within the schedules and deadlines stated in the Task Order, and costs are within the
amount of the approved budget ceiling.
Acceptable Quality Level (AOL):
The Contractor meets all performance standards.
Monitoring Methods:
The EPA COR will review the Contractor's deliverables for quality and acceptability, as well as the
monthly progress reports.
7.3 PUBLIC NOTICES
Under this task the Contractor assist EPA in the production of public notices, place them in news
papers as display ads, and provide EPA with proof of publication.
Performance Requirements:
Prepare Public Notices: The Contractor shall prepare the public notice layout and graphics and submit the
draft notice to EPA for review and approval before publication. The site CIC, through the COR, will
provide the text for the notices and sample layout. EPA staff will identify the newspapers in which the
notices are to be placed and the date on which the notice must be published. The Contractor will be
responsible for sizing the public notice to fit the display ad space. If the Contractor must make extensive
layout and/or graphic changes to the public notice, the Contractor shall notify EPA prior to proceeding
with placement of the public notice for publication.
Arrange for Publication of Public Notices: The Contractor shall proofread notices prior to publication,
arrange with the newspaper for publication and payment of the notices as display ads, and assure that
notices are placed in the newspapers on the appropriate date. The Contractor shall submit copies of the
public notices to EPA, with proof of publication, for inclusion in the Administrative Record and
information repositories as soon as received from newspaper.
On rare occasions there is a potential for short notice (as little as 48 hours) requiring a quick response to
the need to place a public notice.
Performance Standards:
Public notices conform to Agency standards, are of high quality, well written, concise, and accurately
transmit the information being relayed. Public notices are placed in the specified newspapers and are
published on the date(s) specified by EPA. Letter reports transmitting the Public Notice and Proof of
publication are timely submitted to the COR.
28
-------
Work is performed within the schedules and deadlines stated in the Task Order, and costs are within the
amount of the approved budget ceiling.
Acceptable Quality Level (AOL):
The Contractor meets all performance standards.
Monitoring Methods:
The EPA COR will review the Contractor's deliverable(s) for quality and acceptability, as well as the
monthly progress reports.
7.4 MAILINGS
Under this task the Contractor will produce and maintain mailing list data bases and provide mailing
labels, and prepare large mailings.
Performance Requirements:
Develop, Update, and Maintain Mailing Lists:
The Contractor shall develop, update, and maintain the database for site contact/mailing lists. The site
CIC, through the COR, generally will furnish names, addresses, and phone numbers for mailing lists;
however, there may be occasions where EPA will ask the Contractor to locate appropriate addresses and
phone numbers. Mailing lists are to be prepared in accordance with Regional format and content
requirements.
Provide Printouts of the Mailing List and/or Mailing Labels: The Contractor shall provide, as requested,
printouts of, or CDs containing, the mailing list and/or mailing labels within 3 work days of the request
Prepare Large Mailings: The Contractor shall arrange for labeling, folding, stuffing envelopes and
bundling, as required by the Post Office.
Performance Standards:
Mailing lists are accurate and up-to-date. No more than 5% of any mailing is returned as undeliverable
because of a bad address.
Work is performed within the schedules and deadlines stated in the Task Order, and costs are within the
amount of the approved budget ceiling.
Acceptable Quality Level (AOL):
The Contractor meets all performance standards.
Monitoring Methods:
The EPA COR will review the Contractor's deliverable(s) for quality and acceptability, as well as the
monthly progress reports.
29
-------
7.5 COMMUNITY INVOLVEMENT PLANS
The Contractor will assist EPA in developing site Community Involvement Plans (CIP).
Performance Requirements:
Arrange for Community Interviews: The Contractor shall be prepared to arrange for community
interviews as requested by the CIC, through the COR and contact interviewees either via telephone or
email to request an interview. Upon agreement on an interview time, the Contractor shall follow up with
a confirmation letter to the interviewee.
Perform Demographic and Site-History Research: The Contractor shall have the capability to perform
demographic and site history research. As requested by CIC for the site, through the COR, the Contractor
shall research US Census data and other relevant information to identify demographics of the area near
the site and provide a written demographic description of the site. The Contractor shall conduct research
and provide a written description of the community's history.
Identification of Media Contacts: The Contractor shall identify local media outlets and provide contact
information as needed.
Performance Standards:
Proscribed procedures are followed when contacting individuals for interviews. Reports detailing site
history, community history, and demographic information are accurate, clearly written, and produced in a
timely manner. Media identification and contact information is timely and accurate.
All due dates/schedules stated in the TO, and costs are within the amount of the approved budget ceiling.
Acceptable Quality Level (AQL):
The Contractor meets all performance standards.
Monitoring Methods:
The EPA COR will review the Contractor's deliverable(s) for quality and acceptability, as well as the
monthly progress reports.
7.6 CONGRESSIONAL BRIEFING BOOKS
Under this task, the Contractor shall assist the Community Involvement Program in the preparation
of Congressional Briefing Books.
Performance Requirements:
As required, EPA staff will generate the text for the fact sheets, graphics, maps, and the cover. The
Contractor will produce fact sheet format, graphics, charts, maps and covers for each Congressional
Briefing Book. The Contractor will provide draft materials. EPA will review and provide comments on
the draft. Based upon EPA's comments, the Contractor will produce the final fact sheets, maps, graphics,
and cover. Separate booklets will be produced for Superfund activity in Montana, Colorado, South
Dakota, North Dakota and Utah. The Contractor will be responsible for reproducing and binding the
briefing books, and also shall provide the information in electronic form on a CD. Briefing books will be
produced every two years, following Congressional elections.
30
-------
Performance Standards:
Congressional Briefing Books are of high quality, accurate, well written, free from spelling and
grammatical errors and generally appear professionally done.
Work is performed within the schedules and deadlines stated in the Task Order, and costs are within the
amount of the approved budget ceiling.
Acceptable Quality Level (AQL):
The Contractor meets all performance standards.
Monitoring Methods:
The EPA COR will review the Contractor's deliverable(s) for quality and acceptability, as well as the
monthly progress reports.
7.7 GENERAL COMMUNITY INVOLVEMENT ADMINISTRATIVE SUPPORT
Performance Requirements:
The Contractor shall provide general community involvement administrative support to EPA, such as
photocopying, acquiring newspaper subscriptions, and other tasks of this nature, to be determined as
needed.
Performance Standards:
Photocopying quantities are within the limits set by the contract. Newspaper subscriptions are obtained in
a timely manner.
Work is performed within the schedules/deadlines stated in the Task Order, and costs are within the
amount of the approved budget ceiling.
Acceptable Quality Level (AQL):
The Contractor meets all performance standards.
Monitoring Method:
The EPA COR will review the Contractor's monthly progress reports.
TASKS PROJECT MANAGEMENT, PLANNING AND SUPPORT
8.1 PROJECT MANAGEMENT, PLANNING, AND SUPPORT
The purpose of this task is to plan for the execution and overall management of Task Order issued
under the Contract. The technical and managerial activities required to plan and implement the tasks and
their associated costs are detailed in this PWS. Activities required for general project management that
will occur throughout the duration of the project are included in this task.
Performance Requirements:
The Contractor may be required to perform some or all of the following activities as part of the project
planning and support of individual Task Orders:
-------
• Coordination of, and attendance at, scoping meetings;
• Preparation of meeting minutes;
• Preparation of Staffing Plans and Cost Estimates;
• Preparation of periodic status reports;
• Preparation of Monthly Progress Reports and Financial Reports;
• Attendance at site team meetings when requested;
• Attendance at meetings with PRPs in support of negotiations; and,
• Closeout of completed Task Orders and preparation of the Closeout Memo to the Project Officer
and COR.
Conference with EPA Enforcement Teams:
The Contractor will be expected to confer frequently with the EPA and DOJ enforcement case teams with
whom they are working on enforcement cases about the issues that arise during the tasks the Contractor is
assigned to work on. In addition, the Contractor is expected to explain the economic principals they are
applying and the methods of analysis they are using in these assigned cases to the EPA and DOJ
enforcement teams with whom they are working.
Notification to Task Order Project Officer (TOPO) of Deliverables: So that the TOPO can accurately
track the timeliness of deliverable submittals, the Contractor shall provide the Project Officer with a copy
of the transmittal letter to the COR or, lacking a transmittal letter, the contractor shall in some other
written manner notify the TOPO when a deliverable has been submitted to a COR.
Task Order Closeout:
The Contractor will perform close out activities for each individual work. The Contractor shall reconcile
all charges to the Task Order and provide an Acknowledgement of Completion that accurately reflects the
amount of costs incurred and hours spent on the Task Order.
The EPA Contracting Officer will notify the Contractor of project completion and request closeout of the
Task Order. Upon closeout request, the Contractor shall:
• Provide an index of all WA documents to the COR for a duplication check;
• Return EPA documents to EPA or other document repositories, as appropriate;
• Provide electronic copies of specified documents to the COR, if requested;
• Duplicate, distribute, and store files, if appropriate;
• Archive files to meet Federal Records Center requirements, if requested;
• Use microfiche, microfilm, CD-ROM or other EPA-approved data storage technology, as
appropriate;
• Prepare and submit an Acknowledgement of Completion within 30 work days of request for
closeout of the Task Order.
Performance Standards:
If requested, the Contractor will expend their best efforts to coordinate and arrange for a scoping meeting
within the time frame designated in the Task Order. If requested, the Contractor shall prepare minutes of
the scoping meeting that accurately document the scope of service and any deliverable/schedule changes,
and submit them to the COR for review and approval.
32
-------
If needed, the Contractor shall meet with and brief the EPA Enforcement team of any issues that could
affect the outcome of the Region's enforcement efforts at a site.
The Contractor shall meet the schedules and deadlines set forth in the Task Order for submitting the
Staffing Plan/Cost Estimate and any interim periodic status reports/deliverables.
Monthly Progress Reports and Financial Reports accurately reflect the work performed and documents
costs that were incurred during the reporting period.
Closeout of the Task Order is completed within 30 days of notification, and copies of the
Acknowledgement of Completion Closeout Memo are delivered to the COR and Project Officer.
Acceptable Quality Level (AOL):
The Contractor has met the performance standards for this Task. All work is completed within the
schedule and deadlines stated in the Task Order, and costs are within the approved budget ceiling.
Monitoring Methods:
The EPA COR will review the Contractor's Staffing Plan/Cost Estimate, meeting minutes, status reports,
Acknowledgement of Completion, and the Contractor's monthly progress reports.
8.2 QUALITY ASSURANCE
Performance Requirements:
Deliverable/Document Quality: The Contractor shall implement a quality assurance program adequate to
ensure that documents, deliverables, and work are of a quality suitable for their intended purpose.
Documents (both for program and project purposes) shall be complete, accurate, and delivered on time.
"Complete" means all work products, documents, or other deliverables which are required by statute,
regulation, guidance, or terms of the Task Order, are submitted by the Contractor, or that an exception has
been granted by the EPA COR, upon satisfactory showing of good cause.
"Accurate" means the content of all work products, documents, or other deliverables submitted have been
determined by the Contractor to be true, to the best of the Contractor's knowledge and belief, or to be true
and correct original or photocopies of relevant documents whose contents cannot be verified by the
Contractor, but which are nevertheless important to the Agency.
"Delivered on time" means all work products, documents, or other deliverables are placed in the custody
or control of the designated EPA COR on or before the deadline(s) stated in the Task Order, unless an
extension is granted by the COR after a satisfactory showing of good cause by the Contractor.
Quality Assurance Program: The Contractor shall include its quality assurance program as part of the
proposal.
Superfund Site-specific Account Charging: The Contractor shall create a database that is capable of
maintaining separate billing records for each site that the Contractor works on. Superfund sites will be
identified by the site name and Superfund Site Identification/Operable Unit numbers identified in the
work tasking document. Monthly Financial Reports will identify charges by name and Superfund Site ID
33
-------
and OU numbers. Monthly Invoices shall be prepared and submitted in accordance with relevant
attachments to the Contract. In addition, the Contractor will provide an Excel Spreadsheet (Site-Specific
Charging Sheet) which lists monthly site-specific charges by Superfund site names and Superfund site
account numbers with the monthly invoice.
Performance Standards:
Quality assurance is applied to all aspects of each Task Order. The Contractor utilizes methods that
ensure that work is performed in a manner that minimizes the need for internal revision and rework by
using resources and personnel that are at an appropriate level of experience and ability. Internal review is
performed before delivery of documents and deliverables to EPA, by personnel that are experienced in the
type of activity but not otherwise involved in the specific project, as well as personnel (other than the
document authors) who are familiar with the specific aspects of the project that are the subject of the
document.
Costs are tracked and billed site-specifically. Documentation to support all costs incurred by the
Contractor are submitted with the monthly invoice.
Acceptable Quality Limit (AQL):
The quality assurance program provides for both auditing and corrective action. The program describes
how all deliverables generated will be assessed for accuracy, precision, and completeness. All work
efforts conform to the Performance Standards. The quality assurance program plan is submitted with the
Contractor's proposal.
Monitoring Methods:
The EPA Contracting Officer will review the quality assurance program plan submitted with the
Contractor's proposal. The EPA COR will review the Contractor's Staffing Plan/Cost Estimate, assess
deliverables for accuracy, precision, and completeness, and review the Contractor's monthly progress
reports.
INCENTIVES/DISINCENTIVES FOR
ACTIVITIES CONDUCTED UNDER THIS CONTRACT
Where the contractor's work fails to meet one or more of the performance standards, the
government will require the contractor to correct the deficiency(ies) at no additional cost to the
government, and the contractor may be subject to a reduction of up to 20% of the costs incurred for that
task. When the defect(s) cannot be corrected by re-performance, the government may reduce the costs
payable for that task by up to 50%, to reflect the reduced value of the services performed. Performance
issues will be noted within the contractor's monthly and annual performance ratings.
If the contractor's performance on the majority of the Task Orders under this contract, meets or
exceeds the performance criteria by an average rating score of 4 (Excellent) or higher, then the contractor
shall be awarded additional work under this contract for an additional 5-year option period.
34
-------
GOVERNMENT QUALITY ASSURANCE SURVEILLANCE PLAN
Performance Measures
SOW Performance Standards
Proposed Monitoring Methods | Percentage Deduction* | AQL Deviation
Task 1 - Potentially Responsible Party (PRP) Searches
1.1 Overview
In planning and implementing PRP Search support activities, the
Contractor shall ensure consistency with EPA-developed plans
guiding site enforcement activities which may be in existence,
such as a Site Management Plan, PRP Search Plan, etc.
Any deliverable submitted under this Contract shall be of accept-
able quality, which means that, the deliverable:
• demonstrates a good command and usage of the English lan-
guage (e.g., discussion of facts flow in a coherent and organ-
ized manner);
• demonstrates use of proper grammar (noun and verb tense cor-
respond, etc.); and,
• is free of incomplete sentences and misspelled words.
• is printed double-sided, unless directed otherwise; and,
• is properly labeled for sensitive information.
The EPA COR shall review all deliverables
for conformance with the performance stan-
dards and note any deficiencies.
The Contractor shall redo un-
acceptable work at its own
expense, with possible reduc-
tion of costs up to 20%; up to
50% reduction if mistakes
cannot be corrected.
No deviations are
permitted.
1.2 Information Gathering/Records Collection Activities
Gathered information demonstrates that interviews have been
conducted in accordance standards set forth in applicable Federal
and State rules of evidence and relevant interpretive case law
concerning collection, chain of custody, credibility, and admissi-
bility. Interviews are documented in a Memorandum of Inter-
views, summarizing information and/or documents acquired.
Documents are assigned unique tracking numbers, and specific
information about the document is recorded, including the docu-
ment's date, record type, author, recipient, and subject.
Relevant documents are copied and incorporated into reports in a
manner consistent with Agency guidance. Records are organized
in a manner compatible with the Region's Superfund filing
structure and, at a minimum, identify each document by its
source, location, provider, and legal status. Documents shall be
indexed in conformance with Regional and national standards.
The EPA COR will review the documentation
and the Memoranda of Interviews in order to
determine whether there are other sources of
information that need to be researched.
When necessary, EPA shall review and ap-
prove the site-specific Health and Safety Plan
prior to the Contractor handling contaminated
records.
EPA will review the list of records acquired
in order to determine whether all appropriate
records have been collected.
The Contractor shall redo un-
acceptable work at its own
expense, with possible reduc-
tion of costs up to 20%; up to
50% reduction if mistakes
cannot be corrected.
No deviations are
permitted.
35
-------
SOW Performance Standards
Proposed Monitoring Methods Percentage Deduction* AQL Deviation *
The Contractor has taken appropriate actions to ensure and protect
the health and well being of its employees, and in the safe han-
dling and transport/storage of contaminated records.
The Contractor has researched records such as industrial directo-
ries, Chamber(s) of Commerce records, business school libraries,
insurance company maps, city directories, aerial photograph col-
lections, urban archives, and the Internet, where deemed neces-
sary.
The report conforms to the format and content standards for a
"Site History" as outlined in the September 2003 PRP Search
Manual.
Supporting documents cited in the report are correctly identified
in accordance with the information management requirements of
the site-specific Task Order.
All work was performed and deliverables submitted in accordance
with the deadlines outlined in the Task Order. Costs are within
the amount of the approved budget ceiling.
The EPA COR and Site Attorney will review
the Contractor's draft and final reports for use
and incorporation of verified facts, and will
note progress during the reporting period on
the monthly progress reports.
1.3 PRP Name and Address Verification
The contact list identifies the name, address, and other contact in-
formation for all PRPs and the current CEO/manager, or provides
a brief notation explaining why the information is unavailable.
For corporate PRPs, the list identifies the corporate address, regis-
tered agent, officers, mergers, name changes, dissolutions, and
date of in corporation.
The work is performed in accordance with the schedule outlined
in the Task Order. Costs are within the approved budget ceiling.
Through serf-inspection, the Contractor shall
sample up to 10% of the addresses to ensure
the accuracy of the information.
The EPA COR may perform a random sam-
pling of up to 10% of the PRP Name and Ad-
dress verification and check for accuracy.
The EPA COR will note any unacceptable
performance on the Contractor's monthly Per-
formance Evaluation Sheet.
The Contractor shall redo un-
acceptable work at its own
expense, with possible reduc-
tion of costs up to 20%; up to
50% reduction if mistakes
cannot be corrected.
Exceptions for docu-
ments returned unde-
livered due to PRP's
non-acceptance.
1.4 Correspondence Tracking and Transactional Reports
The CTS can produce reports that contain PRP contact informa-
tion with verified addresses, dates of mailings, receipt dates of re-
sponses, depositions, interview summaries, etc.
The Transactional Report contains and summarizes, by generator:
document types, manifest number or other identifying number,
shipment dates, waste types, volumes, volume conversions, and
transporter name(s).
The Contractor, through self-inspection, shall
review all of the information submitted on the
Transactional Report to ensure that the report
contains no grammatical or typographical
errors.
36
The Contractor shall redo un-
acceptable work at its own
expense, with possible reduc-
tion of costs up to 20%; up to
50% reduction if mistakes
cannot be corrected.
Exceptions for new
documentation or in-
formation submitted
by the PRP in nego-
tiations.
-------
SOW Performance Standards
Proposed Monitoring Methods
Percentage Deduction"
AQL Deviation *
The report contains 100% accurate information.
Challenges made by PRPs regarding the volume attributed to
them do not result in changes to the waste allocation for that PRP
due to duplication of entries, transposed numbers, wrong informa-
tion, etc.
The report is submitted in accordance with the Task Order re-
quirements and deadlines. Costs are within the amount of the ap-
proved budget ceiling.
The EPA COR may perform a random sam-
pling of up to 25% of the information to en-
sure that the standards have been met.
1.5 Analysis of PRP Search Information for Evidence of
Liability
Deliverables demonstrate that the Contractor performed in accor-
dance with proper investigative standards, concerning collection,
chains-of-custody, credibility, and admissibility.
The draft and final deliverables adhere to the format and content
standards as defined in the PWS.
Deliverables are submitted in accordance with Contract and Task
Order requirements and deadlines. Costs are within the amount
of the approved budget ceiling.
The EPA COR and Site Attorney will review
the draft and final reports, and shall rate the
Contractor's performance on the monthly Per-
formance Evaluation Sheets.
The Contractor shall redo un-
acceptable work at its own
expense, with possible reduc-
tion of costs up to 20%; up to
50% reduction if mistakes
cannot be corrected.
No deviations are
permitted
1.6 Development of Waste-In Lists, Volumetric Ranking
Reports, and Waste-In Transactional Reports from PRP
rv-i.-rli Aj-fii.-ifi.rii
kjv
-------
SOW Performance Standards
Proposed Monitoring Methods
Percentage Deduction"
AQL Deviation *
The report presents stoichiometric calculations, analysis of mate-
rial balances, and interpretation of process engineering data about
manufacturing processes employed by PRP generators.
The Waste-in List document states all clarifying assumptions
made during compilation.
The Waste-in List document summarizes analyses performed to
estimate volumes of hazardous waste attributable to PRPs.
The Volumetric Ranking conforms to the Contractor-proposed,
government-approved report format.
The database is functional and compatible with EPA software,
and if requested, has been installed on the EPA COR's computer
or designated laptop computer.
The database is completed within the proscribed schedule detailed
in the Task Order. Costs are within the amount of the approved
budget ceiling. Less than 5% of the data input into the database is
incorrect.
Challenges to the Waste-in List are defensible, i.e., challenges
made by PRPs regarding the volume attributed to them do not re-
sult in changes to the waste allocation for that PRP due to dupli-
cation of entries, transposed numbers, wrong PRP, etc.
1.7 Corporate Research and Financial Assessments
Financial assessment reports include the name, address, and
phone number of the entity analyzed, identification of its officers,
dates and place of incorporation, corporate status, and Registered
Agent, where applicable. If required, the Contractor has provided
a financial assessment of each PRP's ability-to-pay based upon
standard Accounting and Finance measures of income, solvency,
and asset valuation.
The report cites all sources of financial information used in the
assessment.and discusses all limitations regarding the information
used in the assessment and any assumptions made.
The report provides a risk assessment and analysis of EPA's risk
in accepting payments from the PRPs.
The EPA COR will review the Contractor's
draft and final reports and the monthly pro-
gress reports.
The Contractor shall redo un-
acceptable work at its own
expense, with possible reduc-
tion of costs up to 20%; up to
50% reduction if mistakes
cannot be corrected.
Exceptions for new
and/or updated docu-
mentation submitted
by the PRP in nego-
tiations.
38
-------
SOW Performance Standards
Proposed Monitoring Methods
Percentage Deduction"
AQL Deviation *
If an appraisal on contaminated property is required, the individ-
ual selected to perform such appraisal has knowledge of
CERCLA and has experience in the unique considerations neces-
sary for evaluation of contaminated properties.
Property surveys have been conducted by licensed surveyors and
reports shall include Plat maps and a narrative legal description of
the property. Qualifications of the surveyor are noted in the re-
port.
All schedules and deadlines stated in the Task Order are met.
Costs are within the amount of the approved budget ceiling.
1.8 Investigations
The list of potential individuals and former employees to be inter-
viewed contains names, current or last known addresses and
phone numbers, and indicates the relevant knowledge the individ-
ual is expected to provide, as well as the questions to be asked of
the individual.
The deliverable demonstrates that the Contractor conducted the
investigations in accordance with proper investigative standards,
and the scope, application, and specific provisions of CERCLA
Section 104(e) relating to the investigative jurisdiction of EPA.
The report contains a detailed summary of the information ob-
tained (including all opinions, comments, and statements of the
interviewee, whether or not erroneous).
The work is performed in accordance with the schedule and dead-
lines specified in the Task Order. Costs are within the approved
budget ceiling.
The EPA COR will review the draft and final
reports and the Contractor's monthly progress
reports.
The Contractor shall redo un-
acceptable work at its own
expense, with possible reduc-
tion of costs up to 20%; up to
50% reduction if mistakes
cannot be corrected.
No deviations are
permitted.
1.9 Title Searches
The purpose of this task is to provide the government with infor-
mation about owners, lessees, and operators at a site that will as-
sist in the issuance of CERCLA Section 106 Notice Letters.
The Title Search Report summarizes the ownership history of the
property, identifying current and past owners of the site property,
as well as properties located adjacent to the site, as required.
The report presents the site's location on county parcel maps and
available aerial photographs, as required, and cites the legal
The EPA COR will review the Contractor's
draft and final reports for use and incorpora-
tion of verified facts, and the Contractor's
monthly progress reports.
The Contractor shall redo un-
acceptable work at its own
expense, with possible reduc-
tion of costs up to 20%; up to
50% reduction if mistakes
cannot be corrected.
No deviations are
permitted.
39
-------
SOW Performance Standards
Proposed Monitoring Methods
Percentage Deduction"
AQL Deviation *
description of the property, including the metes and bounds de-
scription. The Contractor has reviewed the metes and bounds de-
scription to assure the property falls within the site boundaries.
The report contains a chronological list, title tree and/or organiza-
tional chart (presented graphically), and copies of all relevant re-
corded documents including: the site property(ies) legal descrip-
tion^); warranty, grant or quitclaim deeds; mortgages or liens;
deeds of trust; easements; covenants; leases; trustee's deeds; ad-
ministrator's and executor's deeds; financing statements; judg-
ments; real estate contracts; subdivision plats; and, other title in-
struments relating to the site.
The report summarizes research conducted, including document
sources researched, information obtained, follow-up actions re-
quired and/or recommended, and "dead-end" leads. The report
outlines the title history of each parcel.
For mine sites, the report summarizes the history of patented and
unpatented mining claims, including an alphabetical list and cop-
ies of relevant documents that may contain information on leases,
judgments, liens, encumbrances, royalty agreements, UCC filings,
and zoning).
The work is performed in accordance with the schedule and dead-
lines specified in the Task Order. Costs are within the approved
budget ceiling.
The legal description is accurate. Accurate shall mean that the le-
gal description is free from errors and is defensible.
1.10 CERCLA Section 106 General/Special Notice and Section
104(e) Information Request Letter Support
The CERCLA Section 104(e) Information Request letters and
Notice Letters contain accurate information with no typographical
errors, and the 104(e) responses are accurately summarized.
Mailings are completed within the schedule and deadlines desig-
nated by the Task Order.
The correspondence tracking database is kept updated with new
information as it becomes available.
The EPA COR will review the final letters
and the Contractor's monthly progress re-
ports.
The Contractor shall redo un-
acceptable work at its own
expense, with possible reduc-
tion of costs up to 20%; up to
50% reduction if mistakes
cannot be corrected.
No deviations are
permitted.
40
-------
SOW Performance Standards
Proposed Monitoring Methods
Percentage Deduction"
AQL Deviation *
The Contractor is able to produce correspondence tracking reports
on individual PRPs if requested by the EPA COR. The Contrac-
tor has researched current address for any correspondence re-
turned as undeliverable, notifying the EPA COR of dead ends.
Prepared letters are free of grammatical and spelling errors and
look professional.
No more than 5% of mailed correspondence is returned as unde-
liverable due to a bad address.
The work is performed in accordance with the schedule and dead-
lines specified in the Task Order. Costs are within the amount of
the approved budget ceiling.
1.11 PRP Search Report
The PRP Search Report conforms to the format and content stan-
dards outlined in EPA's PRP Search Manual. Supporting docu-
ments cited in the report are identified correctly in accordance
with the information management requirements of the PWS.
The report demonstrates that the Contractor conducted the PRP
search in accordance with proper investigative standards.
The PRP Search Report is delivered within the schedule and
deadline specified in the Task Order and is under the approved
budget ceiling.
No more than 10% of government review comments on the draft
deliverable address substantive legal deficiencies.
All work has been submitted within the specified deadlines stated
in the Task Order and costs are within the approved budget ceil-
ing.
The EPA COR and Site Attorney will review
the draft and final reports for compliance with
the Performance Standards and the Contrac-
tor's monthly progress reports.
The Contractor shall redo un-
acceptable work at its own
expense, with possible reduc-
tion of costs up to 20%; up to
50% reduction if mistakes
cannot be corrected.
No deviations are
permitted.
Task 2 - Expedited Potentially Responsible Party (PRP)
Searches
All Performance Standards for this Task are identical to those
designated for the standard PRP Search activities stated in Task 1
above.
Proposed Monitoring Methods are identical to
those designated for the standard PRP Search
activities stated in Task 1 above.
Percentage Deduction values
are identical to those desig-
nated for the standard PRP
Search activities stated in
Task 1 above.
AQL Deviations are
identical to those des-
ignated for the stan-
dard PRP Search ac-
tivities stated in Task
1 above.
41
-------
SOW Performance Standards
Proposed Monitoring Methods Percentage Deduction* AQL Deviation *
Task 3 - Expedited General Enforcement Support
3.1 Service of Process and Other Documents
The Contractor has located the subject parties and has arranged
for proper served the documents in accordance with Federal Rules
of Civil Procedure, local court rules, and other EPA procedures.
If requested, the Contractor shall provide for overnight or same
day delivery service.
The Contractor has completed and submitted an affidavit, or cer-
tificate of service or other document to serve as evidence of ser-
vice, or has obtained such documents from the individual serving
the documents.
The Letter Report contains an affidavit, or certificate of service,
or other document to serve as evidence of service, in accordance
with Federal Rules of Civil procedure and local court rules.
The work is performed in accordance with the schedule and dead-
lines stated in the Task Order, and costs are within the approved
budget ceiling.
The EPA COR and site attorney will review
the Letter Report to verify that the documents
were properly served and are documented.
The COR will review the Contractor's
monthly progress report.
The Contractor shall redo un-
acceptable work at its own
expense, with possible reduc-
tion of costs up to 20%; up to
50% reduction if mistakes
cannot be corrected.
No deviations are
permitted.
3.2 Filing of CERCLA Liens
The Contractor has determined the correct legal description of the
property EPA proposes to lien, and has filed the lien for recording
in the appropriate jurisdiction in compliance with the particular
rules of that jurisdiction.
The Letter Report contains evidence that the lien has been filed
and recorded, including a copy (a certified copy, if requested) of
the recorded lien.
The work is performed in accordance with the schedule and dead-
lines stated in the Task Order, and costs are within the approved
budget ceiling.
The EPA COR and site attorney will review
the Letter Report and the Contractor's
monthly progress reports.
The Contractor shall redo un-
acceptable work at its own
expense, with possible reduc-
tion of costs up to 20%; up to
50% reduction if mistakes
cannot be corrected.
No deviations are
permitted.
3.3 Filing of Deed Restrictions
The Contractor has prepared and filled deed restrictions pursuant
to CERCLA and State laws, including determining the correct le-
gal description of the subject property, filing of the deed restric-
tion for recording,. If required, the Contractor has/is monitoring
PRP compliance with the deed restriction.
The EPA COR and site attorney will review
the Letter Report and the Contractor's
monthly progress reports.
The Contractor shall redo un-
acceptable work at its own
expense, with possible reduc-
tion of costs up to 20%; up to
50% reduction if mistakes
cannot be corrected.
No deviations are
permitted.
42
-------
SOW Performance Standards
The Letter Report contains evidence that the deed restriction has
been filed and recorded in the appropriate jurisdiction, including a
copy (a certified copy, if requested) of the recorded deed restric-
tion.
The work is performed in accordance with the schedule desig-
nated by the EPA COR, or as outlined in the EPA-approved work
plan, and costs are within the amount of the approved budget ceil-
ing
3.4 Freedom of Information Act Support
Documents and other information requested are retrieved and pro-
vided to the EPA COR within the schedule and deadlines speci-
fied in the Task Order, and costs are within the approved budget
ceiling.
Proposed Monitoring Methods
The EPA COR and site attorney will monitor
the Contractor's prompt retrieval and delivery
of the requested documents and will review
the Contractor's monthly progress reports.
Percentage Deduction*
The Contractor shall redo un-
acceptable work at its own
expense, with possible reduc-
tion of costs up to 20%; up to
50% reduction if mistakes
cannot be corrected.
AQL Deviation**
No deviations are
permitted.
Task 4 - Negotiation Support
The Contractor has reviewed relevant documents and adhered to
applicable Agency guidance in the drafting of documents, publi-
cation requirements, evaluation and preparation of NBARs, and
evaluation of PRPs' proposals, staffing plans, and cost recovery
settlements.
All of the identified expert witnesses are fully qualified, hold the
necessary credentials, and are available and willing to provide tes-
timony within the required time frame.
Missing cost documentation has been identified and obtained, or
if unobtainable, noted in the Letter Report.
Costs are within the approved budget ceiling.
The EPA COR and site attorney will evaluate
the quality of the expert witnesses obtained
by the Contractor. They will review the Con-
tractor's draft and final deliverables and the
monthly progress reports.
The Contractor shall obtain
the services of different expert
witnesses, if deemed unac-
ceptable and will redo unac-
ceptable work at its own ex-
pense, with possible reduction
of costs up to 20%; up to 50%
reduction if mistakes cannot
be corrected.
No deviations are
permitted.
Task 5 - Litigation Support
5.1 Referral Support
The Contractor has contacted and obtained, or made copies of, all
relevant records and organized them in the manner instructed by
the EPA COR.
The Contractor has reviewed the information, and has included
this information in a Letter Report or as otherwise directed by the
EPA COR.
The EPA COR and site attorney will review
the document index to verify that relevant
documents are included. The EPA COR will
review the Contractor's monthly progress re-
ports.
The Contractor shall redo un-
acceptable work at its own
expense, with possible reduc-
tion of costs up to 20%; up to
50% reduction if mistakes
cannot be corrected.
No deviations are
permitted.
43
-------
SOW Performance Standards Proposed Monitoring Methods Percentage Deduction* AQL Deviation**
Work was within the schedule and deadlines stated in the Task
Order. Costs are within the approved budget ceiling.
5.2 Evaluation of Cost Information
All relevant supporting documentation is located and included in
the cost package. The Letter Report outlines all mathematical er-
rors and discrepancies identified in the cost package.
The work is performed in accordance with the schedule and dead-
lines stated in the Task Order, and costs are within the approved
budget ceiling.
The EPA COR and site attorney will review
the Letter Report and the Contractor's
monthly progress reports.
The COR may review a random sampling of
the cost package to verify accuracy of the
Contractor's work.
The Contractor shall redo un-
acceptable work at its own
expense, with possible reduc-
tion of costs up to 20%; up to
50% reduction if mistakes
cannot be corrected.
No deviations are
permitted.
TASK 6 Cost Recovery Support
6.1 Cost Documentation and Redaction
The Contractor has performed a review and audit of the cost
package(s) and provided the findings in a Letter Report. The
Contractor has produced a documentary audit trail to establish
proof of costs incurred using existing systems and other docu-
mentation and guidance.
The Contractor has developed and maintained an organized cost
package or cost document file that includes cost summaries for
each cost element claimed, together with organized supporting
documentation.
The Contractor has accumulated and verified all costs incurred in
connection with a site or sites by reconciling all supporting
documentation with Agency data. The Contractor has identified
to the Agency deficiencies in the cost package and/or potential
sources of challenges.
The cost package contains no mathematical errors and all relevant
documents that evidence work performed and costs incurred are
included in the cost package.
The work is performed in accordance with the schedule and dead-
lines specified in the Task Order, and costs are within the amount
of the approved budget ceiling.
6.2 Closeout Memoranda Support
The Contractor has reviewed Agency files and provided copies of
relevant documents that will support the recommendations in the
Closeout Memorandum.
The EPA COR will review the Contractor's
Letter Report and the Contractor's monthly
progress reports. The EPA COR may review
random documents to verify the accuracy of
the documentation against the cost summary,
and that work-performed documents are pre-
sent to support the documented costs.
The EPA COR and site attorney will review
all deliverables and the Contractor's monthly
progress reports.
The Contractor shall redo un-
acceptable work at its own
expense, with possible reduc-
tion of costs up to 20%; up to
50% reduction if mistakes
cannot be corrected.
The Contractor shall redo un-
acceptable work at its own
expense, with possible
No deviations are
permitted.
No deviations are
permitted.
44
-------
SOW Performance Standards
Proposed Monitoring Methods
Percentage Deduction"
AQL Deviation *
Work was performed and submitted within the schedules and
deadlines stated in the Task Order, and costs are within the ap-
proved budget ceiling.
reduction of costs up to 20%;
up to 50% reduction if mis-
takes cannot be corrected.
TASK 7 Community Involvement Support
7.1 Public Meeting Support
Arrangements for meeting locations are convenient to the public
and equipment/translators/ security are available when and where
needed.
Transcripts/meeting notes are delivered within the proscribed time
frame.
PowerPoint presentations, posters, and other audio-visual materi-
als are of high quality and easily understood.
Work is performed within the schedules and deadlines stated in
the Task Order, and costs are within the amount of the approved
budget ceiling.
The EPA COR will review the Contractor's
arrangements for conformance to the per-
formance standards and any deliverables, as
well as the monthly progress reports.
7.2 Fact Sheet Production
Fact Sheets, flyers, brochures, press packets, and other written
materials are of high quality, easily understood by the target audi-
ence and are accurate. Graphics are colorful, relevant, dynamic,
and enhance the overall message presented.
Written materials conform to EPA's preferred format, and are
provided in Microsoft Publisher.
Translations are accurate in fact and grammatically correct. All
maps, graphics and pictures for publications are of high quality
and relevant to the subject being discussed.
Work is performed within the schedules and deadlines stated in
the Task Order, and costs are within the amount of the approved
budget ceiling.
The EPA COR will review the Contractor's
deliverables for quality and acceptability, and
will review the Contractor's monthly progress
reports
The Contractor shall redo un-
acceptable work at its own
expense, with possible reduc-
tion of costs up to 20%; up to
50% reduction if mistakes
cannot be corrected.
No deviations are
permitted.
7.3 Public Notices
Public notices conform to Agency standards, are of high quality,
well written, concise, and accurately transmit the information be-
ing relayed. Public notices are placed in the specified newspapers
and are published on the date(s) specified by EPA.
The EPA COR will review the Contractor's
deliverable(s) for timeliness, quality, and ac-
ceptability, and will review the Contractor's
the monthly progress reports
The Contractor shall redo un-
acceptable work at its own
expense, with possible reduc-
tion of costs up to 20%; up to.
No deviations are
permitted.
45
-------
SOW Performance Standards
Proposed Monitoring Methods
Percentage Deduction"
AQL Deviation *
Letter reports transmitting the Public Notice and Proof of publica-
tion are timely submitted to the COR.
Work is performed within the schedules and deadlines stated in
the Task Order, and costs are within the amount of the approved
budget ceiling.
50% reduction if mistakes
cannot be corrected
7.4 Mailings
Mailing lists are accurate and up-to-date. No more than 5% of
any mailing is returned as undeliverable because of a bad address.
Work is performed within the schedules and deadlines stated in
the Task Order, and costs are within the amount of the approved
budget ceiling.
The EPA COR will review the Contractor's
deliverable(s) for quality and acceptability,
and will review the Contractor's monthly
progress reports.
The Contractor shall redo un-
acceptable work at its own
expense, with possible reduc-
tion of costs up to 20%; up to
50% reduction if mistakes
cannot be corrected.
No deviations are
permitted.
7.5 Community Involvement Plans
Proscribed procedures are followed when contacting individuals
for interviews. Reports detailing site history, community history,
and demographic information are accurate, clearly written, and
produced in a timely manner. Media identification and contact in-
formation is timely and accurate.
All due dates/schedules stated in the TO, and costs are within the
amount of the approved budget ceiling.
The EPA COR will review all deliverable(s)
for quality and acceptability, and the Contrac-
tor's monthly progress reports.
The Contractor shall redo un-
acceptable work at its own
expense, with possible reduc-
tion of costs up to 20%; up to
50% reduction if mistakes
cannot be corrected.
No deviations are
permitted.
7.6 Congressional Briefing Books
Congressional Briefing Books are of high quality, accurate, well
written, free from spelling and grammatical errors and generally
appear professionally done
Work is performed within the schedules and deadlines stated in
the Task Order, and costs are within the amount of the approved
budget ceiling.
The EPA COR will review the Contractor's
deliverable(s) for quality and acceptability,
and will review the monthly progress reports.
The Contractor shall redo un-
acceptable work at its own
expense, with possible reduc-
tion of costs up to 20%; up to
50% reduction if mistakes
cannot be corrected.
No deviations are
permitted.
7.7 General Community Involvement Administrative
Support
Photocopying quantities are within the limits set by the contract.
Newspaper subscriptions are obtained in a timely manner
Work is performed with the schedules/deadlines stated in the
Task Order, and costs are within the amount of the approved
budget ceiling.
The EPA COR will review the Contractor's
monthly progress reports.
The Contractor shall redo un-
acceptable work at its own
expense, with possible reduc-
tion of costs up to 20%; up to
50% reduction if mistakes
cannot be corrected.
No deviations are
permitted.
46
-------
SOW Performance Standards
Proposed Monitoring Methods
Percentage Deduction"
AQL Deviation *
TASK 8 Project Management, Planning and Support
8.1 Project Management, Planning, and Support
The Contractor used their best efforts to coordinate and arrange
for a scoping meeting within the time frame designated in the
Task Order.
The Contractor prepared minutes of the scoping meeting that ac-
curately document the scope of service and any deliver-
able/schedule changes, and submitted them to the COR for review
and approval.
The Contractor met with and briefed the EPA Enforcement team
of any issues that could affect the outcome of the Region's en-
forcement efforts at a site.
The Contractor met the schedules and deadlines set forth in the
Task Order for submitting the Staffing Plan/Cost Estimate and
any interim periodic status reports/deliverables.
Monthly Progress Reports and Financial Reports accurately re-
flect the work performed and documents costs that were incurred
during the reporting period.
Closeout of the Task Order was completed within 30 days of noti-
fication, and copies of the Acknowledgement of Completion and
Closeout Memo were delivered to the COR and Project Officer.
The EPA COR will review the Contractor's
Staffing Plan/Cost Estimate, meeting minutes,
status reports, Acknowledgement of Comple-
tion, and the Contractor's monthly progress
reports.
The Contractor shall redo un-
acceptable work at its own
expense, with possible reduc-
tion of costs up to 20%; up to
50% reduction if mistakes
cannot be corrected.
No deviations are
permitted.
8.2 Quality Assurance
Quality assurance is applied to all aspects of each Task Order.
The Contractor utilizes methods that ensure that work is per-
formed in a manner that minimizes the need for internal revision
and rework.
Internal review is performed before delivery of documents and
deliverables to EPA.
Costs are tracked and billed site-specifically. Documentation to
support all costs incurred by the Contractor are submitted with the
monthly invoice.
The EPA Contracting Officer will review the
quality assurance program plan submitted
with the Contractor's proposal. The EPA
COR will review the Contractor's Staffing
Plans/Cost Estimates, assess deliverables for
accuracy, precision, and completeness, and
review the Contractor's monthly progress re-
ports.
The Contractor shall redo un-
acceptable work at its own
expense, with possible reduc-
tion of costs up to 20%; up to
50% reduction if mistakes
cannot be corrected.
No deviations are
permitted.
* Amount that can be reduced from monthly invoice charges.
** Acceptable Quality Level - The maximum allowable degree of deviation from the standard for the task which will be permitted by the government before perform-
ance is deemed to be unsatisfactory.
47
-------
CHECKLIST OF
PRP SEARCH TASKS
NOTE: This checklist is intended as a tool, listing tasks which may be assigned or performed during PRP
searches, depending on site enforcement strategy and needs. The list which follows does not imply that all
tasks must or should be performed, and the sequence in which tasks are performed should be governed by site
strategy rather than the order listed below.
Region:
Site Name:
Location:
TASK
1. Q Agency Record Collection and
File Review
TASK SELECTION CRITERIA / CONDITIONS
Gather and organize the information; review records to extract PRP
information and leads
Files are:
Q Federal
Q State
Q Local
a Other
File Location
# of Pages
Use this space to describe anything unique about the records and their condition including
business confidential, contamination, travel involved, access, other sources besides hard copy, etc.
2. Q Title Searches Note: Guidelines such as going back 50 years or to the end of World War II or the
first industrial use of the property can sometimes be useful, but in most cases
determining the relevant period for a search is a highly site-specific exercise.
F.
Simple Title Search
Complex Title Search
A. Q
B. Q
C. Q Unknown Title Search
D. Q Title Search for Recorded
Instruments
E. Q Certified Copies
Chain of Title
G. Q Property History Narrative
Site involves less than five parcels and the site does not have a long
history of industrial use.
Site involves more than five parcels and/or has a long history of
industrial use.
A site property description will need to be developed by EPA, or EPA's
enforcement contractor along with an estimate of the title search cost.
Includes deeds, leases, mortgages, liens, plate maps, contracts.
Necessary to support site history and PRP list. If litigation is expected,
certified copies (see next task) are usually required for admissibility.
Includes deeds, leases, mortgages, liens, death records, wills, lawsuits
and contracts. Obtain certified copies if litigation is expected and case
attorney requires certified copies for court admissibility.
A chronological list of title instruments for quick reference to title
transactions overtime.
Requested for more complex sites when a detailed narrative
description of property history would assist case development.
-------
Checklist for Tasking
Continued -
TASK
3. Q Interviews with Government
Officials
4. Q Records Compilation
TASK SELECTION CRITERIA / CONDITIONS
Interviews required of persons known or suspected to possess unique
information about the site. Interviews generally conducted by phone
unless travel is specifically requested. This task is used in most PRP
searches.
Records are located and manually organized to permit easy access
and use. A file system and index are usually established. Depending
on the number of records, records may be computerized.
5. Q Compliance History
6. Q PRP Status/PRP History
7. Q PRP Name and Address Update
8. Q CERCLA104 (e) Letters
9. Q Financial Status
Develop financial information for:
A. Q Individual PRPs
B. Q Partnership
C. Q Corporation
D. Q Exempt Organizations
E. a Other
F. Q CERCLA104(e)/RCRA3007(c)
Letters
10. Q History of Site Operations
This task provides a narrative description of site compliance status for
a specified period of interest focusing on activities and parties involved
with hazardous wastes.
PRPs for which a current address is not available are researched to
determine their fate. Names, addresses, and registered agents are
provided for the PRPs and any successor companies.
Current name and address information is obtained for identified
PRPs. Includes name, address, registered agent, mergers, and
name changes.
EPA identifies PRPs and collects evidence by sending section
104(e) information request letters. The information gathered from
104(e) letters is critical to site history, status, chemical use, disposal,
volume, and other information to determine liability.
Solicit financial information through CERCLA 104(e) authority
regarding the financial condition of the PRPs. This task can provide
PRP information such as financial status, officers, and current
business operations.
(Identify public vs. private companies, etc.)
Attach list of names and addresses
Attach list of names and addresses
Attach list of names and addresses
Attach list of names and addresses
Attach list of names and addresses
This task includes formulating potential questions for PRPs based on
gaps observed in available information, preparing letters with PRP
names and addresses, and reviewing responses for information
relevant to PRPs.
Note: This task may be more appropriately performed after issuance
of information request 104(e) letters and the review of PRP files. A
narrative description of site operations through a specified period of
interest is presented in a report. This history focuses on activities and
parties involved with hazardous wastes. Particularly useful if many
operators or various types of operations were involved at the site.
-2-
-------
Checklist for Tasking
Continued -
TASK
11. O Report Preparation
12. O Aerial Photographs and
Sanborn Maps
13. Q CERCLA Subpoena Authority
14. Q Field Survey
15. Q Industrial Survey
16. Q PRP File Review
TASK SELECTION CRITERIA / CONDITIONS
PRP reports should include sections on the site background, project
approach, contracts and sources, site history, PRPs, and
conclusions/recommendations.
Aerial photographs and Sanborn maps can provide detailed site
information without accessing the site. They can also be used to
compare site characteristics over a period of time.
Authority to serve administrative subpoenas to obtain evidence from
PRPs and others. The subpoena is useful in situations when the PRP
may not respond to the information request under 104(e) e.g.,
obtaining financial and account records from financial institutions.
This task is used to gather additional evidence through field activities
such as general field inspection, document review, personal
interviews, and drum label recording. Usually conducted only when
there is no other information available about a site.
This task identifies PRPs through a survey of local businesses and a
review of various industrial manuals and directories. This is an
indirect method of identifying PRPs and may be difficult to prove if no
other information is available. May serve as a starting point of more
detailed research into disposal practices of local industries.
PRP documents, such as operator records, are reviewed to extract
PRP information and leads. This task should be completed after a
review of agency files.
Use this space to describe anything unique about the records and their condition including business
confidential, contamination, travel involved, access, other sources besides hard copy, etc.
17. Q Private Citizen/PRP Interview
18. Q EPA Investigations
19. Q CERCLIS
Interviews with persons known or suspected to possess unique
information about the site. Interviews can be conducted via telephone,
or in person at the discretion of the investigator and/or enforcement
specialist. Detailed interviews, when needed, can be documented by
a transcript.
Investigations can be useful in locating individuals, developing
information regarding closely held financial assets, and interviewing
parties with knowledge of the site activities. If a potential for danger
exists, contact appropriate law enforcement personnel, such as EPA
CID special agents, building security, or local police.
CERCLIS is an EPA database which generally contains PRP
information such as: name, addresses, types of letters sent (notice,
demand and information request) and the dates sent, orders issued,
and kind of PRP (owner, operator, generator, or transporter).
-3-
-------
Checklist for Tasking
Continued -
TASK
20. Q Waste Stream Inventory
21. Q Process Chemistry Analysis
22. Q Database(s)
A. G Correspondence
B. Q Inventory
C. Q Transactional
23. Q Financial Assessment
24. Q Generator Ranking
25. Q Property Appraisal/Property
Survey
TASK SELECTION CRITERIA / CONDITIONS
Compile an accurate inventory of wastes that were disposed of at the
site by reviewing operating logbooks, analytical reports, and waste
stream records.
The process chemistry analysis task is generally performed after an
industrial survey and a waste stream inventory. This task attempts to
link industries with wastes at a site.
A database is created to keep track of PRPs sent letters (Notice or
Information), whether they responded, and other information as
specified by EPA. Computerized databases should be considered for
cases with a large number of PRPs.
Information management system developed to organize and permit
quick retrieval of documents by keyword, author, date, subject, or
other predetermined strategy. Useful for searches with a large
number of documents or if documents must be easily accessed.
Site transaction databases are used to rank PRPs based on quantified
site usage information. (See also Generator Ranking)
This task provides a more detailed analysis of a PRP's financial
situation than the financial status task.
This is usually a work product(printout) from a transactional database
project (see #22 above). The ranking orders generators by waste
volume or other comparable unit.
Appraisal of site property owned by a PRP which may have value.
Appraisal may focus on contaminated state or post-remedial state.
Please identify person completing this checklist:
Name: Title:
Region/Other:
Phone Number:
Mailing Address:
-4-
-------
CHECKLIST FOR
REMOVAL/PRE-REMEDIAL SITES
Completion of this form is not mandatory, nor is it directed solely towards a specific type of
responder. The first on-site responder may begin the checklist which may include contributions
from any of the following: EPA site assessment manager (SAM), on-scene coordinator (OSC), civil
investigator (Cl), remedial project manager (RPM), EPA contractor, state staff, or state contractor.
This form should be filled out for future use by EPA or state staff in preservation of evidence
related to the identification of potentially responsible parties. This form may be filled out at any
point during the site discovery, assessment/investigation, or response phase.
It may not be possible to provide information for each of the items on this form but, providing
information on as many of the items as possible will improve the overall efficiency of the site
remediation and enforcement processes. When you have completed it to the extent feasible,
please distribute copies of this form to the appropriate EPA and state personnel (e.g., civil
investigators, EPA or state attorney, OSC, RPM, etc.), and place the original in the site file.
1. Potential Site referred:
Region:
Site Name:
Location:
2. Referred by:
Department/Agency
Q State
G National Response Center
Q Other:
Contact Name
Phone*
3. Basic site information was requested to be submitted to the regional office from the above referral
contact:
a Yes a No
4. Identification of person completing this checklist:
Organization: Name:
Title: Phone #:
Mailing Address:
5. The OSC (or other First Responder) determines the urgency of the situation at the site, assessing
the factual information referred against the criteria set forth in the National Contingency Plan.
6. Site Team formed, OSC, Attorney, Enforcement Specialist, Civil Investigator, Site Assessment
Manager, Remedial Project Manager, EPA contractor, State staff, etc.
-------
7.
8.
9.
10.
Site Team reviews information to ascertain responsible corporate officers, registered agents, and
principal environmental and/or health and safety contacts. Some examples of information to be
reviewed and their source is:
Q U.S. EPA media files (NPDES permits, RCRA information, EPCRA releases, CAA
permits)
Q State media files
Q Local health department files
Q Historical society information/historical photos
Q Newspaper archives
Q Local university archives
Q Sanborn fire insurance maps
Q Other
Obtain access agreement(s) with last known owner(s) of site property:
QYes QNo Date obtained:
Identification of the property to be visited:
Q
a
Q
a
Copy of deed
Address:
Plat #:
Cross Street Location:
Identification of possible contacts that may be a source of information in the future, including
complete names, titles, addresses, and telephone numbers. Include all people you encounter on the
site, and anyone volunteering information about the site: [*Owners/operators, prior
owners/operators, generators, transporters, local authorities, state and other federal agencies, local
libraries, other]
Association With Site
and Number of Years*
Contact Name
Address
Phone No.
-2-
-------
11. Interviews were conducted with the following contacts:
Interviewee
Association With
Site and Number of
Years
Date Interview
Conducted
Interviewer
Transcript
Available
Yes/No
12.
Information about records located onsite:
Type of Records *
Location of Records
Condition of
Records**
Name of Person in
Possession of Records
Types of records, to include but not limited to: log books, driver's tickets, utility bills, payroll records,
letterheads, or other specific correspondence or records.
"Please identify if: contaminated, damaged, poor quality, good quality, other
-j-
-------
13. Are there file cabinets on site?
Number of File Cabinets
Location of File
Cabinets
Condition of Cabinets/Files
14.
15.
16.
17.
Were photographs taken? [Note: photographs should conform to accepted photographic record
protocol. Refer to TA T, site assessment, and criminal investigators for EPA photographic protocol]
Q Yes Q No
Photographs were taken of:
Were drums found at the Site? Q Yes Q No
Number of Drums:
Number With Labels:
Was sampling done? Q Yes Q No
Neighbors near the site:
Name
Association With Site
and Number of Years
Address
Phone
No.
Interviewed and
Date Yes/No
-4-
-------
18. Additional potential sources for gathering site information:
Q Neighboring Businesses
O County Recorder:
G Deed Information
Q Past Tax Information
G Sidwell Maps
G Financial Information
Q Financial Institutions
G Accountant Information
O Commerce Clearing House (CCH) Publications (Capital
Transactions)
G PRP Information on EPA Databases
Q CERCLIS
G IDEA
Q FINDS
a ERNS
G Electronic Database Review
Q Choice Point
G Dun & Bradstreet
O Lexis/Nexis (or Westlaw)
G Corporate Information
G Prior lawsuits, bankruptcy filings, SEC filings
G Internet sources
19. OSC plans for:
G Removal action
G Removal scoping
G Public participation
G Establish administrative record
20. Based on information gathered to date, appropriate enforcement activities should be taken:
G Issue information request
Q State an opportunity, in the information request, for the PRPs to provide
information on additional PRPs
G Initiate title search
Q Review relevant site records
G Initiate PRP search report
G Oral/written general notice letters issued to known PRPs
21. OSC prepares Action Memorandum
G Develop negotiation strategy
G Prepare draft administrative order on consent (AOC)
G Negotiate AOC or issue unilateral administrative order (UAO)
[Note: when issuing UAOs, the enforcement team should follow guidance on Administrative Reforms
- the UAO should be issued equitably to the largest manageable number of parties and the team
should document the reasons why the UA O is not issued to all PRPs, if appropriate]
-5-
-------
22. Site cleanup:
Q PRP-lead
Q Fund-lead
23. Cost recovery phase:
Complete enforcement investigations:
Q Followup on earlier PRP search
Q Update title search if necessary
Cost recovery activities:
Q Itemized cost summary
Q Send demand letters
Q Cost recovery referral
Q Close-out memorandum (where appropriate, if case is not referred to DOJ)
Q Cost documentation package
Q Work performed documents
Please use the following space to provide additional noteworthy information regarding
this checklist and the site:
PLEASE ATTACH ALL RELEVANT INFORMATION THAT HAS BEEN REFERENCED IN
THIS CHECKLIST AND DISTRIBUTE TO THE APPROPRIATE REGIONAL CIVIL
INVESTIGATOR, SITE FILE, AND OTHER EPA OR STATE PERSONNEL AS
APPROPRIATE.
-6-
-------
Quick Reference Guide
Party Information
This Quick Reference Guide will provide information on how to access, view, and enter information into the Party
Information screens in the Enforcement module of WasteLAN. The Party Information screen contains relevant data
pertaining to a Party at a site. There are eight tabs in the Party Information section which contain general party
information, the sites at which each party is involved, their involvement, contacts, and other pertinent information.
u
ser Access Roles for Party Information Screen
Read Only: Headquarters Manager, Read Only, Community Involvement Coordinator, Headquarters Staff, Headquarters
Budget/SCAP Coordinator.
Delete/Edit Rights: Regional Manager, Site Manager, Administrative Support/Data Entry, Superuser/All, Remedial Project
Manager, Regional Attorney, Site Assessment Manager, On-Scene Coordinator, Civil Investigator, Cost Recovery Specialist/
Data Entry, Office of Regional Council (ORC) Data Entry Staff, IMC/IMC Staff/Budget Coordinator, Regional Manager
Reviewer, Cost Recovery Coordinator, Brownfields Coordinator.
Accessing and Viewing the Party Information Screens
1. To access the Party Information screens from the Views menu, select Enforcement, Party Search/Information, and then
Party Search. The Party Search/ Information screen is displayed.
2. You can also access the Party Information screen by highlighting (click once) a party in either the 'Parties in Search
Results' or 'Parties Associated With Current Site' boxes on the Party Search screen and clicking the Info button, or by
clicking the Add Party button on any Parties tab within the Enforcement module.
NOTE: For more information on searching for a party on the Party Search/Information screen, please see the Party
Search/Information Screen Quick Reference Guide.
i arty Information Tabs
The Party Information screens contain data pertaining to a party at a site, including the party name, address, the sites at which
they're involved, their involvement, and contacts. There are eight tabs in the Party Information section: Summary, Party
Details, Associated Sites, Involvement, Substance, Enforcement History, Contacts, and Comments.
Last Required Update: March 2003 (Version 3.13)
-------
Quick Reference Guide
Party Information
Summary Tab
The Summary tab gives you an overview of
the Party Information section. The Party
Information screen defaults to the Summary
tab when accessed by clicking on the Info
button on the Party Search/Information
screen. These fields are uneditable.
Information on the Summary tab includes
Party Name, Address, Party Type and Sites
and Actions associated with the party. To
enter information, double-click on the field
and you will be brought to the tab that
contains the data entry screen for that field.
For example, if you click on the Party Name
field, you will be brought to the Party Details
tab.
> Parly Information
Party Name: |SEASHELLS IHC
Summary I Party Details I Associated Sites I Involvement I Substance
Originating Region: 01
Enf. History I Contacts I Comments I
Harnei
Facility Hame:
Address:
City, ST, Zip:
Country:
Type:
Sites:
Contacts:
Actions:
Contacts and Actions are displayed only tor sites within your region.
ISEASHELLS IHC
1
[512 MAIH ST.
pHOEMix | AZ [34242
| Bradstreet if. \
{•••••••••••O]
I d
I d
I d
Some fields look like a dropdown list. These
are all the fields where it is possible to select
multiple values on the data entry screen. On this screen, the dropdowns display all sites with which the party is associated,
the contacts related to the party, the Actions associated with the party, and the party type.
You will always have to return to the Summary tab to save the information you entered on each of the other tabs.
I arty Details Tab
The Party Details tab is where you will add the basic information about the party. The Party Search/Information screen
defaults to the Party Details tab when accessed by clicking the Add Party button on the Party Search/Information screen.
All fields on this tab are editable unless the party has been sent a General or Special Notice letter or is associated with an
Enforcement action.
1. To access the Party Details, click on the Party Details tab or double-click on the Name, Facility Name, Address, City,
ST, Zip, Country, Bradstreet #, or Type fields on the Summary tab.
2. Type in information in the appropriate field for the Party Name, Alias, Address, City, State, Zip Code, Phone Number,
Fax Number, Facility Name, Internet Address, Country, Date and State in which the party was incorporated, if
appropriate, and Dunn & Bradstreet number. The system only requires that you enter the Party Name. A 1999 OSRE
memo, however, requires additional information be entered for the party, for example the Party Address. Entering the
address will increase the usability of the data; help reduce the number of duplicate parties in the system; eliminate data
quality issues; and allow you to create and print mailing labels. If a user selects a country from the Country dropdown
box and picks something other than "United States", the "Phone", "Fax", and "Zip Code" will be replaced with "Int'l
Phone", "Int'l Fax", and "Postal Code." The "State" field will be deactivated and the new International fields will lack
the formatting of the US codes.
Last Required Update: March 2003 (Version 3.13)
-------
Quick Reference Guide
Party Information
3. Identify the party type using the drag and drop box. Multiple values are allowed.
> Party Information
Party Name: | Originating Region: | 01
Summary j Party Details j Associated Sites Involvement Substance Enf. History Contacts Comments
Fields to enter party
address information
Name:
Alias:
Address:
Use these fields to
indicate the party typ.-''
City, ST:
ZIP Code:
Party Types:
Federal Agency
Phone:
Fax:
Facility:
Internet:
Country:
Inc. Date:
Inc. State:
Dun S
Dradstreet ft
Selected Party Types:
Cancel
%. Party Information
Party Name:
Summary Party Details Associated Sites
Use this
dropdown box
to identify the
country for the
party you are
entering. Ifthe
Country field is
blank, or is
populated with
"United States",
the Phone, Fax,
and Zip Code
fields will
appear.
When the Country is
selected and set to
something other than
Blank or "United
States", the Phone,
Fax, and Zip Code
fields are replaced by
"Intl Phone", "Intl
Fax", and "Postal
Code." The "State"
field will be
deactivated.
Last Required Update: March 2003 (Version 3.13)
-------
Quick Reference Guide
Party Information
Associated Sites Tab
The Associated Sites tab displays the sites at which the PRP is involved. This tab is used to associate a party to a number of
sites or a site other than your "global" site without going back to the Site List. If you are associating parties with the
"global" site, you don't need to go to this tab. Just go back to the Summary tab to save your data and associate the party to
the site.
1. To access the Associated Sites tab, double-click on the Sites field on the Summary tab, or click on the Associated Sites
tab.
2. To see if a site has already been associated with the party, click in the Find field at the top of the 'Sites Party is Already
Associated With' box. The closest alphabetical match will be displayed.
3. To search for a site with which you wish to associate the party, click in the Find field at the top of the 'All Sites in
Current Region' field. The closest alphabetical match will be displayed.
4. To associate the party, highlight (click once) the desired site in the 'Associate Party with Additional Sites' field and click
the Associate button. The Involvement tab is displayed.
VPaity Information
Sites party
is already
associated
with
Other sites in the
Region
Party Name: f)UPONT
Originating Region: 01
Summary Party Details Associated Sites Involvement Substance Enf. History Contacts
Sites Party is Already Associated With:
Region State Spill ID
There are 1 site available.
Associate Party with Additional Sites:
#1 OLD SANITARY LANDFILL TILLMAH ROAD
#1 RAUUE UNDER LAKE MONROE
FELGER ROAD DUMP
There are 7595 sites available.
Find
fields
\Click Associate
to associate the
party with the
site you selected.
Last Required Update: March 2003 (Version 3.13)
-------
Quick Reference Guide
Party Information
e Involvement Tab
The Involvement tab allows the user to enter information on how the party is involved with the site.
1. To access the Involvement Tab, double-click on the Sites dropdown list on the Summary tab, click the Associate button
on the Associated Sites tab, or click on the Involvement tab.
2. You are required to choose at least one Involvement Type. To select the Involvement Type, click in the appropriate box.
A check mark will be displayed. If you choose "Other Involvement Type," the system requires you to select an "Other
Involvement Type" from the drag and drop box on the right. To do this, highlight (click once) the desired "Other
Involvement Type" on the left side of the screen and click the right arrow button or drag and drop the value into the
Selected Types box. If you try to save your changes without indicating an "Other Involvement Type," a message will
appear reminding you to select this field.
Party Information
Check one of
the
Involvement
Types
Party Name: [SEASHELLS INC
Summary Party Details I Associated Sites Involvement
Substance
Originating Region: | 01
Enf. History Contacts Comments
site: IMEHDEHHALL MERCURY SITE
-Involvement Type
^-eSher W Transporter! F 104E
[~~ Operator \~ Generator [~~ Other
Type the
beginning and
ending
involvement
dates in these
fields
Select an
identification •
source from
the dropdown
list
F Hon-Settlor F Noticed/Enf Action
F Hot PRP Determination Made
-Inuoluement Dates
BegimMrigT lQQjlDO/0000 Ending: (00/00
Identification Source:
Identified Date: |00.<00.<00(IO
Involvement Comments:
Other Inuolu Types:
Selected Types:
Adjacent Property ^
Attorney - federal
Attorney - municir. T | i
Financial Viability:
Selected Viability:
Basis of Liability:
Selected Basis:
Current Owner *
De micromis party
De minimis p
Other Involvement
Type drag and
drop field
Financial
Viability
drag and
drop box
Basis of
Liability
drag and
drop box
Below the Involvement Types are three check boxes: Non-Settlor, Noticed/Enforcement Action and Not PRP
Determination Made. The Noticed/ Enforcement Action box indicates that the party has been sent a general or special
notice letter or has been associated with an enforcement instrument or litigation action. If you associate the party with a
General or Special Notice Letter, Litigation action, or Enforcement Instrument, WasteLAN will automatically check the
Noticed/Enforcement Action box.
NOTE: Users cannot uncheck the Noticed/Enf Action box after it has been system generated or has been saved. Parties
where the Noticed/Enf Action box has been checked are snapshot to the national database and the other regions.
Last Required Update: March 2003 (Version 3.13)
-------
Quick Reference Guide
Party Information
4. The Not PRP Determination Made checkbox indicates that determination has been made that the party is not a PRP.
Similar to the Noticed/Enf Action checkbox, the Not PRP Determination Made checkbox can be manually entered or
system generated. WasteLAN will automatically check in the Not PRP Determination Made box if you check "Other"as
the only Involvement and select "Prospective Purchaser" as the only Other Involvement Type. If the checkbox is system
generated, a message will pop up alerting you that the box has been checked. You can uncheck the Not PRP
Determination Made box at anytime.
NOTE: Once a party has been snapshot it will always be available in the National database even if you later decide a
party should not have received a notice letter or you make a determination that a party is not a PRP and check the Not
PRP Determination Made checkbox.
5. The Involvement tab also contains data fields to indicate the Basis of Liability and the Financial Viability of the party.
These fields are drag and drop fields so that several selections may be made. To select a value in any of these drag and
drop boxes, highlight the desired item in the 'Financial Viability' box or the 'Basis of Liability' box and click the right
arrow button or drag and drop it from the left box to the right box.
r/,
e Substance Tab
The Substance tab allows you to associate the party with the wastes at a site.
1. To access the Substance tab click on the Substance tab.
2. To add a substance, click the Add button. You can enter a waste by selecting a Waste ID or Waste Name from the
dropdown lists, or typing the substance name in the Substance Name field. If you select a Waste ID the system will
display the Waste Name and vice versa.
Party Name: fARTY NAME
Originating Region: 01
Select a
WastelD or
Waste Name
from the
appropriate
dropdown list
Summary I Party Details I Associated Sites Involvement Substance Enf. History I Contacts
site: ^HVIROCHEM CORP.
Waste Name
Click this
button to
add a
^substance
Last Required Update: March 2003 (Version 3.13)
-------
Quick Reference Guide
Party Information
U
sing the Enforcement History Tab
The purpose of the Enforcement History tab is to enter confidential information on your enforcement experiences with a
party.
1. To access the Enf History tab click on this tab.
2. The information on the top of the tab is automatically filled based on your User information. The arrow keys on the
bottom right of the screen allow you to scroll through multiple entries. The History Records field shows how many
entries there are for the party. The enforcement history is shared with all regions.
3. To enter comments on your experiences with the party, click in the Confidential Enforcement History field and begin
typing.
4. To add a new record, click the Add button and enter the appropriate information. To delete an existing record, click the
Delete button.
WasteLAN
User
information
Enter
Enforcement
History
Information in
this free form
text field
Party Name: f>ARTV NAME Originating Region: | 01
Summary Party Details Associated Sites Inuoluement Substance Enf. History Contacts Comments
WasteLAN User -
Name: [Joan Powers
Internet: |
Phone: [)
Fax: ITT
Confidential Enforcement History (Agency Use Only): Created Date: | 07/20/2000
History Recon
This information is shared nationally.
I
Add
Use scroll
bars to
scroll
^.through
records
Last Required Update: March 2003 (Version 3.13)
-------
Quick Reference Guide
Party Information
Contacts Tab
On the Contacts tab, you can enter information about people related to a party, for example, the party's attorney. The tab is
the same as the Name List screen in WasteLAN. However, the only roles you will see are those related to a party. You must
select a role for the contact by choosing one from the dropdown list.
1. To access the Contacts tab, double-click in the Contacts field on the Summary tab, or select the Contacts tab.
2. Enter the contact's name and address information and select a role. To see all the contacts for the party, use the arrows at
the bottom of the screen.
3. To add a new contract click the Add button and enter the appropriate information. To delete an existing contact, click the
delete button.
' vParly Information
Party Name: fflRTY NAME Originating Region: |~01
Summary | Party Details ] Associated Sites j Involvement ] Substance Enf. History Contacts | Comments
Site: ^NVIROCHEM CORP.
Last Name:
Title:
Company:
Address:
City, ST, ZIP:
Phone #1:
Fax:
Role:
1 _TJ 1 -
[ ) - Phone #2: |t ) -
( ) - Internet: |
3
NJ_
Use the scroll bars
to scroll through the
Contacts
Click the Add or
Delete buttons to
add or delete a
Contact
Last Required Update: March 2003 (Version 3.13)
-------
Quick Reference Guide
Party Information
(Comments Tab
The Comments tab allows you to enter comments about the party. The comments are not site specific and can only be
viewed in your region. If you wish to make comments about a party that are specific to a site, you can do that on the
Involvement tab.
1. To access the Comments tab click on the Comments tab.
2. To enter comments about the party click in the Party Comments field and begin typing.
I Party Name: pARTY HAME Originating Region: | 01
Summaiy Party Details Associated Sites I Inuolvement I Substance Enf. History 1 Contacts Comments
Party Comments (This information is not shared nationally):
Enter Comments here
Exiting the Party Information Screens
To exit the Party Information screens and save the site association and the information on the party, you must go back to
the Summary tab. Clicking the OK button will bring up a message asking if you want to save your changes. Click Yes to
save your changes and exit the Party Information screens.
Last Required Update: March 2003 (Version 3.13)
-------
PRP SEARCH ENHANCEMENT TEAM
September 28, 2009
Reaion
Region 1
Region 2
Region 3
Region 4
Region 5
Region 6
Region 7
Region 8
Region 9
Region 10
Headquarters
Headquarters
Headquarters
Headquarters
Headquarters
Team Member
James Israel
(p) (617) 918-1270
Carol Berns
(p) (212) 637-3177
(f) (21 2) 637-31 04
Carlyn Prisk
(p) (21 5) 81 4-2625
(f) (21 5) 81 4-3005
Herb Miller
(p) (404) 562-8860
(f) (404) 562-8842
Blake Sterling (Alt.)
(p) (404) 562-8852
Gladys Watts
(p) (312) 886-7591
Fouad Dababneh (Alt.)
(p) (31 2) 353-3944
Courtney Kudla
(p) (21 4) 665-8008
Robert Werner (Alt.)
(p) (21 4) 665-6724
Cheryle Micinski
(p) (913) 551-7274
(f) (91 3) 551-7925
Norma Tharp (Alt.)
(p) (913) 551-7076
Mike Rudy
(p) (303) 31 2-6332
Monika O'Sullivan
(p) (41 5) 972-31 11
(f) (41 5) 947-3520
Susan Haas
(p) (206) 553-21 20
Grechen Schmidt (Alt.)
(p) (206) 553-2587
Nancy Deck, Team Leader
(p) (202) 564-6039
(f) (202) 564-0074
Monica Gardner, Manager
Advisor
(p) (202) 564-6053
Clarence Featherson
(p) (202) 564-4234
(f) (202) 501-0269
Eric French
(p) (202) 564-0051
(f) (202)564-0074
Stephen Keim
(p) (202) 564-6073
(f) (202)564-0074
Address
U.S. EPA, Region 1
One Congress Street, Suite 1100 (HBS)
Boston, MA 02 11 4-2023
Office of Regional Counsel
290 Broadway, 17th Floor
New York, NY 10007-1866
Office of Enforcement and Cost Recovery
1650 Arch Street (3HS62)
Philadelphia, PA 19103
Superfund Enforcement and Information
Management Branch
Waste Management Division
61 Forsyth Street, S.W.
Atlanta, GA 30303
Remedial Enforcement Services Section
77 West Jackson Blvd. (SR-6J)
Chicago, IL 60604
Cost Recovery Section
Superfund Division (SF-TE)
1445 Ross Avenue (Fountain Place)
Dallas, TX 75202-2733
USEPA Region 7
Regional Counsel
901 North 5th Street
Kansas City, KS66101
Office of Enforcement, Compliance, and
Environmental Justice
(8ENF-RC)
999 18th Street, Suite #303
Denver, CO 80202-2466
Case Development and Cost Recovery
Superfund Division
75 Hawthorne Street
San Francisco, CA 94105
1200 6th Avenue
(M/SECL-110)
Seattle, WA 981 01
Office of Site Remediation Enforcement
1200 Pennsylvania Avenue, N.W. (2273-A)
Washington, DC 20460
Office of Site Remediation Enforcement
1200 Pennsylvania Avenue, N.W. (2273-A)
Washington, DC 20460
Office of Site Remediation Enforcement
1200 Pennsylvania Avenue, N.W. (2272-A)
Washington, DC 20460
Office of Site Remediation Enforcement
1200 Pennsylvania Avenue, N.W. (2273-A)
Washington, DC 20460
Office of Site Remediation Enforcement
1200 Pennsylvania Avenue, N.W. (2273-A)
Washington, DC 20460
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Table of Contents
Business Information 2
EPA Resources - Public 7
EPA Resources - Internal 9
Directories 10
Financial Information 13
Government Agencies 14
Government Directories 17
Investigative Tools 18
Law, Legal Sites 20
Libraries and Public Information 22
Maps and Aerial Photos 24
Real Property 26
Technical Information 27
Denotes a fee for service Page 1
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Business Information
Annual
Reports and
SEC filings
Bankruptcy
Compliance
Information
Annual
Report
Service*
10K
Wizard*
U.S.
Securities
and
Exchange
Commission
American
Bankruptcy
Institute*
Public
Access to
Court
Electronic
Records
(PACER)*
Occu. Safety
and Health
Admin.
(OSHA)
http://www.annualreportservice.com/
http ://www. 1 OKWizard. com
http ://www. sec. sov/edsar/searchedsar/webusers.htm
http ://www.abiworld. org/
http://pacer.psc.uscourts.gov/
http://www.osha.sov/pls/imis/establishment.html
Free directory of online annual reports.
Search for company SEC filings.
Subscription required.
Company information, shareholder
information, and SEC filings including annual
reports.
Numerous online resources including
headlines, news, meeting information, court
opinions and other bankruptcy info.
Subscription is required.
Access to federal court documents.
Registration is required. Fees are generally
$.08 a page.
Search for information on OSHA inspections
and violations.
Denotes a fee for service
Page 2
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Company
Profiles and
Information
American
Business
Directory
Corporate
Information
Dun and
Bradstreet*
Hoovers
Online
http://library.dialog.com/bluesheets/html/bl0531 .htm
http ://www. corporateinformation. com/
http://www.dnb.com
http ://www.hoovers. com
Contains company contact, SIC, financial, and
linkages on over 12 million U.S. business
establishments.
Information on companies in 55 different
countries. Free snapshots reports as well as
more comprehensive reports for a fee.
Search for business and financial information
on companies. Certain D & B information is
available through Lexis. Your region may
already have a subscription to access D & B
reports.
Excellent source of company information,
including fmancials and links to websites.
Free snapshot reports and more
comprehensive reports available for a fee.
Corporate
Affiliates
Dun and
Bradstreet*
http://www.dnb.com
Lexis
Corporate
Affiliations*
http://www.corporateaffiliations.com/
Financial information on many companies.
Database of relationships between companies.
Corporate
Financial
Information
Hoovers
Online
http ://www.hoovers. com
Motley Fool
http://www.fool.com/
Financial information on many companies.
A variety of financial information.
Denotes a fee for service
Page 3
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Corporate
Records
International
Business
Mergent
Yahoo!
Finance
Government
Files
Online*
National
Association
of
Secretaries
of State
Search
Systems
Coordinated
Legal.com
British
Columbia
Assessment
Canadian
government
Canadian
Stock
Exchange
Corporate
Information
http://www.mergentonline.com
http://fmance.yahoo.com/
http ://www. governmentfilesonline. com/search/
http://nass.org/index. php?option=com content&task
=view&id=89&Itemid=l
http://www.searchsvstems.net/list.php?nid=ll
http://www.coordinatedlegal.com/SecretarvOfState.
html
http://www.bcassessment.bc.ca/
http://www.canada.gc.ca/main e.html
http ://www. sedar. com/
http ://www. corporateinformation. com/
A variety of tools available.
Financial news and information.
This site provides links to Secretary of State's
Offices. It offers a "free one day
membership" but otherwise charges a hefty
fee.
National SOS organization. Provides links to
every State.
Free link to public records by state, county, or
city.
Similar to NASS, provides a link to the
Secretary of State in each State as well as
information about the cost.
Property ownership in British Columbia.
Information on the Canadian government.
Access to most public securities documents
and information filed by public companies in
Canada.
Search for information about companies in 55
different countries.
Denotes a fee for service
Page 4
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Manufacturing
information
News
Industry
Canada
Candian
Business
Kompass
Mergent
Online*
Ministry of
Mining
Oncorp
Direct
UK
Business
and Finance
Industry
guide
Business
Week
Journal of
Business
http : //stratesi s . i c . sc . ca/csi -
bin/sc mrksv/corpdir/dataOnline/search.csi?lans=e
http://www.ic.sc.ca/app/ccc/srch/cccBscSrch.do71an
s=ens&prtl=l.
http://www.kompass.com
http://www.mergentonline.com/
http://www.em.sov.bc.ca/Minins/Geolsurv/Publicati
ons/catalos/cat arpts.htm
http://www.oncorp.com/
http://www.news-review.co.uk/
http://www.thomasresister.com/
http ://www.businessweek. com
http ://www.bizi ournal s . com/
Search for information about Canadian
companies.
Similar to Hoovers.com for Canadian
companies.
Search for information about companies from
70 different countries.
Obtain information on international
companies, including annual reports.
Mining reports from the British Columbia
Ministry of Mining.
Search for information about Canadian
companies.
Information on British based companies.
Registration is required but free.
Search by product service, company name,
brand name or industry.
A weekly business news magazine that has an
online issue with the information more
frequently updated.
This is nation's largest publisher of
metropolitan business journals and updates
websites for 41 print business journals.
Denotes a fee for service
Page 5
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Local
business
news
TheStreet
Wall Street
Journal
http://www.dbusiness.com/
http ://www.thestreet. com
http://www.wsi .com
Covers business news and information for 50
local markets nationally.
Investment news.
International market and economic news.
Denotes a fee for service
Page 6
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
EPA Resources - Public
Administrative Record on
the Web
Compliance and
Enforcement
Economic Models
Environmental Response
Team
Environmental Terms and
Acronyms
EPA Libraries
Finding Potentially
Responsible Parties
Hazardous Waste Clean Up
Information
Links to State
Environmental Agencies
National Enforcement
http://losserhead.epa.sov/arweb/public/advanced se
arch.jsp
http://www.epa.sov/compliance/
http://www.epa.sov/compliance/civil/econmodels/
http://www.ert.ors/
http://www.epa.sov/OCEPAterms/
http://www.epa.sov/natlibra/ols.htm
http://www.epa.sov/compliance/cleanup/super
fund/find. html
http://www.clu-in.ors/
http://www.epa.sov/epahome/state.htm
http://www.neti online, com/
EPA's Superfund Administrative Record
Database.
EPA's Compliance and Enforcement
website.
EPA's link to all financial computer models,
which evaluate a PRP's ability to pay clean
up costs.
EPA's Environmental Response Team's
website.
A glossary of environmental terms,
abbreviations and acronyms.
Provides the ability to search EPA libraries
for specific information and/or publications.
Search for parties that have received
General or Special Notice of liability at
Superfund Sites. This resources its
information from CERCLIS.
Provides information about innovative
treatment and site characterization
technologies to the hazardous waste
remediation community.
EPA's web link to state environmental
Agencies.
Listing of classes that are provided by EPA's
Denotes a fee for service
Page 7
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Training Institute (NETI)
National Locator
National Priority List
OSC website
PRP Search Manual
Superfund
Enforcement Directory
(SFED)
Superfund
Enforcement
Documents
Superfund Information
System (CERCLIS)
Where You Live Site
http ://cfpub . epa. gov/locator/index.cfm
http ://www. epa. sov/superfund/sites/npl/frli st. htm
http://www.epaosc.ors
http://www.epa.sov/compliance/cleanup/super
fund/prpmanual .html
http ://cfpub . epa. sov/compliance/sfed/
http ://cfpub .epa. sov/compliance/resources/pol
icies/cleanup/superfund/
http ://cfpub . epa. sov/supercpad/cursites/srchsit
es.cfm
http://www.epa.sov/epahome/wherevoulive.ht
m
enforcement training institute.
EPA's electronic phone book.
Provides information concerning sites that
are proposed, listed and/or deleted from the
National Priorities List.
EPA's web site for Removal Actions.
Link to EPA's PRP Search Manual.
EPA Superfund Enforcement Directory.
It can be searched by Region or by area
of expertise.
Link to Superfund guidance documents.
Publicly available access to EPA's
Superfund Information System.
Link to various web locations that
provide information concerning the
location of hazardous substances within
a community.
Denotes a fee for service
PageS
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
EPA Resources - Internal
Office of Site Remediation
Enforcement
http://intranet.epa.gov/oeca/osre/index.httnl
Internal list of Superfund Enforcement
subject matter contacts.
Office of Site Remediation
Enforcement
http://intranet.epa.gov/oeca/osre/
Primary link to EPA's Office of Site
Remediation Enforcement.
Office of Superfund
Remediation and Technology
Innovation
http ://intranet. epa. gov/oerrinet/
Office of Superfund Remediation and
Technology Innovation main website.
CERCLA Enforcement
Project Manager Handbook
http://intranet.epa.gov/oeca/osre/documents/hbk-pdf/
The link provides an overview of the roles
and responsibilities of the remedial project
manager and the on-scene coordinator
(RPM/OSC) in identifying and
communicating with PRPs; coordinating with
communities, states, tribes, and natural
resource trustees; negotiating agreements for
site cleanup; initiating administrative and
judicial enforcement actions; selecting site
remedies; recovering EPA's response costs;
and overseeing PRP-lead response actions.
Office of Site Remediation
Enforcement
http ://intranet. epa. gov/oeca/osre/documents/internal.
html#104
Links to EPA Information request letters and
standard questions.
Denotes a fee for service
Page 9
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Directories
All-purpose
directories
Credit
Reports
Bigfoot
Freeality
Infobel
Search Systems
Starting Page
Superpages
Switchboard
Whowhere
Experian
http://www.bisfoot.com/
http://www.freealitv.com/fmdc.htm
http://www.infobel.com/teldir/
http://www.searchsvstems.net/
http://www.startingpase.com/html/lookup.html
http ://vp 1 0. superpases. com/
http ://www. switchboard, com
http ://www. whowhere. com
https://www.infolookup. experian.com/metronet*
Email, white pages, yellow pages
and reverse searches are available.
Search public records by category or
state or nationwide.
Find anyone anywhere in the world.
General Information Search (i.e. zip
code, area code).
Lists categories of searches, then it
lists websites of where to conduct
those types of searches. Lists links
to search websites for various types
of information.
Business Directory
Personal and Business Directory.
White and yellow pages.
Credit Reports, business searches,
and personal searches.
Denotes a fee for service
Page 10
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Email
addresses
Search Tips
nvironmental
Enforcement Resources
Find people-
general
Find people
comprehen-
sive
Yahoo
Semaphore
Searchbug
Westlaw*
AutoTrak XP*
Dialog*
http://mv.email.address.is/
https://rain.alacop.sov/downloadfiles/files/cvbersch.htm
http://www.vahoo.com/search/people/email.html
http://www.semaphorecorp.com/default.html
http ://www. searchbus.com/peoplefmder/
http://www.westlaw.com
http ://atxp. choicepoint. com/
http://www.dialos.com
Searches Yahoo!, Switchboard,
W.E.D, InfoSpace, and Look4U, as
well as reverse email address search
and tips on finding email addresses.
Directory of EPA, law enforcement,
and other Sites.
Search for people and businesses
information.
Software development company
with a few free search programs.
Personal and Business directory with
additional services if you submit an
email address in which the
information can be sent.
Search for legal information, as well
as parties to lawsuits. Your legal
office may have an account.
Search for business or personal
information with an address or
name. This service was previously
known as ChoicePoint.
Search for business information.
Denotes a fee for service
Page 11
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Reverse
Directories
Public Data*
Anywho
Reverse address
directory
Reverse phone
directory
Search Engines
Toll free
numbers
Zip codes
A&T
USPS
http://www.publicdata.com
http : //www. anv who . com/rl . html
http://www.reverseaddressdirectory.com
http://www.reversephonedirectorv.com/
http://searchengine.com
http://www.tollfree.att.net/tf.html
http://www.usps.com/zip4/
Search criminal, motor vehicle,
drivers' license, sex offenders, voter,
property tax, federal, Secretary of
State, and professional license from
select states.
Reverse phone.
Reverse address, phone.
Reverse address, phone.
Register and receive weekly updates
on search engine changes and new
search techniques.
Toll free number directory.
Find zip code for an address.
Denotes a fee for service
Page 12
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Financial Information
Calculators
Financial
Models
Interest
rates;
industry
discount
rates
Investment
Information
Loan rates
Commerce Bank
EPA Enforcement
Models
Federal Reserve
MorningStar*
Bankrate.com
Bestrate.com
Quicken loans
Salary.com
http://www.commerceonline.com/fmancial cal
culators.cfm
http://www.epa.sov/compliance/civil/econmod
els/index. html
http://www.federalreserve.sov/releases
http://www.morninsstar.com/7psi d=hetabhome
http://www.bankrate.com/brm/default. asp
http ://www.bestrate. com/
http://www.quickenloans.com
http://www.salarv.com
A variety of financial calculators.
Download BEN, ABLE, INDIPAY,
MUNIPAY, and PROJECT.
Current and historical information on interest
rates, industry discount rate, etc.
Investment news, information, tools and
calculators. Registration (free regular
membership required to use portfolio feature.
Premium (fee) membership for access to analyst
research and stock reports.
Current mortgage and other loan rates.
Current mortgage and other loan rates.
Current mortgage and other loan rates.
Salary comparisons by profession and location.
Denotes a fee for service
Page 13
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Government Agencies
Bureau of Economic Analysis
Bureau of Prisons
Census Bureau
Census Bureau (Pre-set profiles
of communities)
County Courthouses
Courts (district, appeals,
bankruptcy)
Department of Justice
(attorneys)
Department of Labor
Federal Election Commission
Federal Reserve Board
http://www.bea. sov/
http://bop.gov/
http ://www. factfmder . census . sov
http://censtats.census.gov/pub/Profiles.shttnl
http://www.senealosv.com/00000229.html7We
lcome=1085073621
http://www.uscourts.sov/links.html
http://www.usdoi .sov/usao/
http://www.bls.sov/
http://www.fec.sov/fmance/disclosure/norindse
a.shtml
http://www.federalreserve.sov/rnd.htm
Link to various economic indicators.
Link to the Bureau of Prisons. It includes the
ability to search for inmates who have been
located in federal prisons.
Link to United States census information.
Link to pre-established sets of census
information for communities in the United
States.
Link to county websites.
Link to federal court information.
Link to information on the United States
Attorney's Office.
Link to the Department of Labor. Provides
information concerning various economic
indicators.
Individual contributions.
Link to the Federal Reserve Board's economic
research information.
Denotes a fee for service
Page 14
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Financial Crimes
Network
Enforcement
Government Phone Numbers
Government Printing Office
Internal Revenue
Service
Money Service Business
National Archives
Occupational
Safety & Health
Administration
Index to site
Inspection
Information
Office of Patents*
Trademarks
Securities and Exchange
Commission (EDGAR)
US, State & Local Government
http://www.fmcen.gov
http ://www.info. sov/phone. htm
http://www.spoaccess.sov
http://www.irs.sov
http://www.msb.sov
http : //archives . sov/
http ://www. osha. sov
http ://www. osha. sov/oshstats/index.html
http://www.uspto.sov/main/trademarks.htm
http://www.sec.sov/edsar/searchedsar/companv
search.html
http://www.usa.sov/Topics/Reference Shelf. sht
ml
Main web link to the Department of Treasury's
Financial Crimes Enforcement Network.
Listing of federal state and local government
phone numbers.
Main link to the Government Printing Office.
Useful access portal to all U.S. government
publications.
Main access point for information provided by
the Internal Revenue Service.
Money Services Business link from the
Financial Crimes Enforcement Network.
Main link to the National Archives.
Main link to the Office of Safety and Health
Administration.
Link to OSHA inspection and accident
investigation information.
Main link to information concerning patents and
trademarks.
Link to the Securities and Exchange
Commission's ("SEC") Electronic Data
Gathering, Analysis, and Retrieval System
(EDGAR). This database allows the ability to
research company filings with the SEC.
Link to federal, state and local websites.
Denotes a fee for service
Page 15
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
U.S. Bureau of Prisons
http://www.bop.gov/iloc2/LocateIntnate.isp
Locate PRP or witness who may be in a Federal
Prison
U.S. Marshals Service
http://www.usdoi.gov/marshals/
The U.S. Marshals Office can assist EPA by
serving notices and may accompany EPA staff
in questionable locations.
Find out whether an individual is a
fugitive/wanted by the U.S. Marshals using the
search tool.
Denotes a fee for service
Page 16
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Government Directories
Federal
Government
State and
local
government
FedStats
Louisiana State
University
Libraries
GovEngine.com
State and Local
Government on
the Net
USA.gov
http://www.fedstats.sov/
http://www.lib.lsu.edu/sov/fedsov.html
http ://www. sovensine. com/
http://www.statelocalsov.net/index.cfm
http ://www.firstsov. sov
Statistics from 100 government agencies.
Federal agency directory.
Federal, state and local government information.
Directory of state, county, city government
websites.
"Government made easy."
Denotes a fee for service
Page 17
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Investigative Tools
Bureau of Justice Statistics
Investigators Guide to
Sources of Information
(GAO)
National Criminal Justice
Reference Service
Personal
Property
Public
records
directory
Collect.com
EBay
Kelley Blue
Book
Kovels.com
Nada
Guides
Search
Systems*
http://www.oip.usdoi .sov/bi s/welcome.html
http://www.fas.ors/irp/sao/osi-97-2/soi ch4.htm
http://www.nci rs. sov
http://www.collect.com/
http://www.ebav.com/
http ://www.kbb . com/
http://www.kovels.com/
http://www.nadasuides.com/
http ://www. searchsvstems.net
Crime statistics and court statistic information;
no individual or company information.
Lists and describes investigator and law
enforcement databases; no links to databases;
can be found by using Google.
Federally funded resource offering justice and
substance abuse information.
Antiques, collectibles values. Registration
required.
Online auction.
Car values.
Antiques, collectibles values. Registration
required.
Car, boat, RV, motorcycle, mobile home
values.
Lists 38,541 searchable public record
databases; no direct link unless a paying
member, but will show which databases are
free or charge.
Denotes a fee for service
Page 18
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Regional Information
Sharing Systems*
http://www.iir.com/riss/
National program of regionally oriented
services designed to enhance the ability of
criminal justice agencies to share information;
membership required.
Denotes a fee for service
Page 19
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Law, Legal Sites
Code of Federal
Regulations
Code of Federal
Regulations, Federal
Register, and more
Federal Acquisition
Regulation
Federal Register
Lawyers
Legal
research
pages
Martindale
locator
Find a
lawyer
Bar
associations
Westlaw
http://www.access.spo.sov/nara/cfr/cfr-table-
search.html
http://www.heinonline.ors/HOL/Welcome7collec
tion=fedres
http ://www. arnet. sov/far
http://www.spoaccess.sov/fr/index.html
http://www.martindale.com
http://www.fmdlaw.com
http://www.bestcase.com/statebar.htm
http://www.westlaw.com
Searchable CFR database from 1996.
ABA journals, most cited journals, criminal
justice journals, intellectual property library,
CFR from 1938, FR from 1936, U.S. Attorney
General opinions, legislative history,
Presidential and Supreme Court libraries,
statutes.
FAR regulations and GSA forms library.
Federal Register from 1994 with links to
libraries for FRs prior to 1994.
Find a lawyer.
Find a lawyer.
State bar association links.
Online legal research service for legal and law
related materials and services.
Denotes a fee for service
Page 20
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Legislation
pending in
Congress;
votes, bills,
laws
Lexis
Senate
House
Legislative information
Supreme Court Decisions
U.S. Code
U.S. House
Cornell
University
U.S. Courts
http://www.lexis.com
http ://www. senate, sov
http://www.house.sov
http://thomas.loc.sov
http://supct.law.cornell.edu/supct/index.html
http://uscode.house.sov
http://www.law.cornell.edu/uscode/
http ://www.uscourts. sov/courtlinks/
Comprehensive databases of law, business,
public records and news. Your legal office
may already have an account. *
U.S. Senate.
U.S. House of Representatives.
Bills, resolutions, congressional record,
committee reports, searchable by bill text.
Supreme Court decisions, briefs, links to briefs,
oral argument recordings 1990 - present.
U.S. House of Rep.; searchable code from
1988; link to Federal Register.
Searchable U.S. Code.
Links to all U.S. Courts. Documents are
available using PACER.
Denotes a fee for service
Page 21
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Libraries and Public Information
Almanacs
Environmental News
Environmental
Research Foundation
Library of Congress
Linda Hall Library
News-
papers
News
Choice
Newspaper
Link
http://www.infoplease.com/index.html
http : //www. earthvi si on . net/
http://www.rachel.org/home eng.htm
http://lcweb.loc.gov
http ://www.lindahall . org
http://www.newschoice.com
http://www.newspaperlinks.com
Miscellaneous information.
Contains information resources on
environmental news, innovative
environmental technologies, government
environmental technology programs,
contracting opportunities, market
assessments, market information, current
events and other material of interest to
the environmental technology
community.
Web site under repair as of 5/15/07.
Largest library in the work; services include
Ask a Librarian, photo duplication; see FAQs.
Library of science, engineering and
technology; document delivery services;
searchable catalog; reference and search
services.
Selected newspaper links in selected states.
Links to all major newspapers; search by state,
no logins.
Denotes a fee for service
Page 22
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
National Archives
Non-Profit Entities
Public Records Search
U.S.
Geological
Survey
Earth
Sciences
Library
http://www.nara. sov
http ://www.suidestar. ors/
http ://www.brbpub .com/pubrecsites. asp
http ://library .usgs. gov/
Searchable databases of historical information.
Web link that provides information concerning
non-profit entities.
Public records databases by state; links to free
databases (similar to Search Systems before it
became a pay service).
The largest earth science library in the world.
Denotes a fee for service
Page 23
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Maps and Aerial Photos
Enviromapper
Freeality.com
Geography network
Google Earth
Google Maps
Mapquest
Microsoft Maps Live
NationalAtlas.gov
Terraserver.com
U.S. National
Geological Geologic Map
Survey Database.
http://www.epa.sov/enviro/emef/
http://www.freealitv.com/maps.htm
http://www.seosraphvnetwork.com/maps/index.ht
ml
http : //earth . soosl e . com/
http://maps.google.com/maps
http ://www.mapquest. com/
http://maps.live.com/
http : //nati onal atl as . gov/
http://terraserver.microsoft.com/
http://nsmdb.usss.sov/nsmdb/nsm catalos.ora.htm
1
U.S. EPA's interactive maps and aerial
photography to display facility-based
information from the Envirofacts Warehouse.
Directory of map-related sites.
Static, browser and GIS-access maps.
Satellite imagery, maps, terrain and 3D
buildings. Free service but requires a software
download.
Maps and directions. Limited aerial photos.
Maps and directions.
Similar to Google Earth. View 3d aerial photos,
maps, and more. Free service but requires a
software download.
Maps of North America.
Aerial photos - Search by address or longitude &
latitude.
National Geologic Map Database. Search USGS
maps.
Denotes a fee for service
Page 24
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
National Map
USGS
national map
viewer -
http://nationalmap.gov/
http://nmviewogc.cr.usgs.gov/viewer.htm
Information on the USGS National Map.
View the USGS National Map.
Denotes a fee for service
Page 25
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Real Property
ABC's of Real Estate
DataQuick*
HomeSeekers.com
Netronline.com
RealEstate.com
Rent-O-Meter
ZWillow
http ://www.realestateabc. com/
http ://www. dataquick.com/
http://www.homeseekers.com/
http://www.netronline.com/
http://dowjones.homepricecheck.com/
http ://www. rentometer. com
http://www.zillow.com/?kws=zwillow
Real estate and mortgage resources.
Real property ownership, appraisal information.
Residential property sales and value information.
Real estate information and public records
search.
Residential property sales and value information.
Residential rental comparison.
Real estate information and property values.
The information available varies by region
searched.
Denotes a fee for service
Page 26
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Technical Information
Agency for
Toxic
Substances
and
Disease
Registry
(ATSDR)
CERCLA
Hazardous
Substances
Hazardous
Substances
Cleaner Solutions Database
Efunda (Engineering
Fundamentals)
Envirofacts Master
Chemical Integrator
Material
Safety Data
Sheets
(MSDS)
Product Name
Manufacturer
Military specification
lubricant products
http://www.atsdr.cdc.sov/cercla/
http://www.atsdr.cdc.sov/toxfaq.html
http://www.cleanersolutions.ors/?action=vendor search&pa
se=0& submit=Submit& sortbv=product& sortasc= 1
http://www.efunda.com/processes/processes home/process. c
fin
http ://www. epa. sov/enviro/html/emci/chemref/
http://www.setonresourcecenter.com/MSDS/search.html
http://www.setonresourcecenter.com/msds/docs/wcdOOOOO/
wcd00014.htm
http://www.mtpinc-
exporter.com/chemicals/chem mil spec. htm
Hazardous substance and toxicological
information.
ToxFaqs: Frequently asked questions
about contaminants found at hazardous
waste sites.
Search for products based on vendor-
recommended contaminant, substrate
and equipment information.
Descriptions of industrial processes.
Search the EMCI Chemical References
Web Pages.
MSDS search by chemical, product
name.
MSDS search by manufacturer name.
Listing by specification number and
title of specification.
Denotes a fee for service
Page 27
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
National Library of
Medicine
Radiochemistry Society
Toxnet- Toxicology Data
Network
US Metric Association
http://sis.nlm.nih.gov/enviro.html
http://www.radiochemistry.org/periodictable/
http://toxnet.nlm.nih.gov/
http://lamar.colostate.edu/~hillger/evervdav.htm
Environmental health and toxicology
information. Also, access to TOXNET,
a collection of databases on hazardous
chemicals, toxic releases, and
environmental health.
Periodic table.
Data on toxicology, hazardous
chemicals, environmental health, toxic
releases.
Metric conversions.
Denotes a fee for service
Page 28
-------
^DIVIDUAL AMLITYTOPAYCLAm
Financial Data Request Form
This form requests information regarding your financial status. The data will be used to evaluate your ability to pay
for environmental cleanup or penalties. If you need more space for your answers, please attach additional sheets of
paper. Note that further documentation may be requested of any of your responses. Any other information you wish
to provide supporting your case is welcome, particularly if you feel your situation is not adequately described
through the information requested here.
Certification
Under penalties of perjury, I declare that this statement of assets, liabilities, and other information is true, correct,
and complete to the best of my knowledge and belief. I further understand that I will be subject to prosecution by the
U.S. Environmental Protection Agency to the fullest extent possible under the law should I provide any information
that is not true, correct, and complete to the best of my knowledge.
Signature:
Name:
Spouse's Name:
Names of Additional Household Members:
Date:
Street Address:
City:
County:
State:
Zip:
-------
Household Members' Income
List all income that household members earn and provide tax returns for last three years.
Name
Relationship to Applicant
Age
Gender
Employer
Years Employed
Gross (Pre-Tax) Income
Wages/Salaries
Sales Commissions
Investment Income
Net Business Income
Rental Income
Pension Income
Child Support
Alimony
Other (attach description)
serf
spouse
For income
period, specify
either Weekly,
Monthly,
Quarterly, or
Yearly.
W
M
0
Y
-------
Household Living Expenses
List household living expenses typical of last year, indicating if any are likely to change significantly in the current
year. If you own an operating business, exclude any business expenses; instead, attach any available financial
statements for your business.
Expense
Rent
Home maintenance
Transportation (inc. auto maint.)
Home heating oil, gas, etc.
Electricity
Water & sewer
Telephone
Food
Clothing, personal care
Medical (other than premiums)
Mortgage payments (principal and interest only)
Car payments
Credit card interest
Educational loan payments
Other debt payments
Home insurance
Life insurance
Auto insurance
Medical insurance
Property taxes
Federal income taxes (net of any refunds)
State & local income taxes (net of any refunds)
PICA
Other taxes
Childcare
Tuition
Legal or professional fees
Other (attach description)
Amount
Period
W
M
0
Y
-------
Net Worth
Provide the following information to the best of your ability. Data should be as current as possible. Estimates are
acceptable; if you wish note such items with an "E". If you are the sole proprietor of a business, please list business
assets and liabilities to the extent that the information sought is not already provided in your tax returns, in addition
to personal assets and liabilities. Mark these entries with a "B" to identify them as business assets and liabilities.
Bank Accounts
Assets
Balance
Checking, NOW, Savings, Money Market, CDs etc.
Financial Investments (stocks, bonds, etc.)
Retirement Funds and Accounts
Market Value
Market Value
IRA, 401(k), Keogh, vested interest in company retirement fund, etc.
Life Insurance Policies (with cash value)
Cash Value
Whole life, universal life, etc.
Vehicles Used for Commuting
Market Value
Liabilities
Loan Balance
Cars, trucks, motorcycles, etc.: list up to two vehicles used for commuting purposes.
Vehicles (other than for commuting)
Market Value
Loan Balance
Cars, trucks, motorcycles, recreational vehicles, motor homes, boats, airplanes.
Primary Residence
Real Estate (other than primary residence)
Market Value
Market Value
Mortgage Balance
Mortgage Balance
Lands, buildings, land with buildings.
Comments
-------
Personal Property
Market Value
Debt Balance
Household Goods and Furniture, Jewelry, Art, Antiques, Collections, Precious Metals, etc.; list only items with a
value greater than $500.
Credit Cards and Lines of Credit
Other Debts and/or Assets
Market Value
Balance Due
Debt Balance
Any other assets and any debts on those assets, plus any other debts owed to individuals, fixed obligations, taxes
owed, overdue alimony or child support, etc.
-------
Additional Information
For any question that you check off as applicable, provide additional information below or on separgtejyqges.
Reason to believe financial situation will change during the next year?
Currently selling or purchasing any real estate?
Property held by other person/entity on applicant's behalf?
Party in pending lawsuit (other than this enforcement action)?
Any belongings repossessed in last three years?
Is applicant a Trustee, Executor, or Administrator?
Participant or beneficiary of estate or profit-sharing plan?
Declared bankruptcy in last seven years?
Receive any type of federal aid or public assistance?
-------
Ability To Pay
Individual Request for Information
1. Please complete and sign the following forms.
• IRS Form 8821
• INDIPAY Data Request Form
2. Please provide the following:
a. A substantive statement with supporting information which explains the specific
reason(s) why you are claiming an inability to pay the proposed penalty. If supporting
information is being provided as part of EPA's request (items 2.b. - 2.j.), please indicate.
b. Federal Tax Returns True, complete and signed copies of your federal tax returns
for the years , , - the review period.
c. Annual Financial Statements If you own a business, provide true and complete
copies of annual financial statements, including but not limited to, an Income Statement
and Balance Sheet. If available, also provide Cash Flow and Expense Statements. The
fiscal years provided should coincide with the tax year returns requested above.
If an outside CPA prepares the financial statements, please provide, in order of
preference, audited, reviewed, or compiled financial statements, and include any attached
notes. If an outside CPA does not prepare these statements, then your internally
generated annual financial statements for your business activities should be provided. In
the event that final financial statements are not yet ready for a recently completed fiscal
year, then provide a draft copy.
d. Year To Date Financial Statement If more than three months have elapsed from the
end of your business' most recently completed fiscal year, please provide year-to-date
financial statements for your business through the end of the most recent prior month; at
a minimum, provide the income statement and balance sheet. If no tax return has been
completed for the most recent tax year, financial statements for that year should also be
included.
e. Litigation Provide a statement (with relevant details) as to whether you or your
business currently is, or anticipates being a party to, any litigation which has not been
noted in the most recent financial statement and which could impact your financial
situation.
f. Financial Settlements Provide a statement with relevant details as to whether you or
your business currently is, or anticipates, receiving or paying a financial settlement which
has not been noted elsewhere or in the most recent financial statement.
ATPIndividualRequest.wpd
-------
Ability To Pay
Individual Request for Information
g. Company Control and Affiliations For the period under review, to the present,
provide a statement to indicate whether you controlled, or are affiliated with, any other
entity, domestic or foreign. For each entity named, provide the names of senior officers
and board of directors, type of control or affiliation (e.g., provides
administrative/financial/marketing services), and describe the percentage of ownership
and means of control.
h. Insurance Provide a statement as to whether you or your business had any liability
insurance in effect during the review period which provided or would provide coverage
for this specific environmental issue. If 'Yes', provide a true and complete copy of each
policy.
i. Market Conditions If you or your business claims that market conditions are a factor
in your inability to pay claim, provide supporting information to substantiate any such
claim(s).
j. Other Assets Do you have a financial or beneficial interest in, or control of, any asset,
domestic or foreign, that has not been identified in your federal tax returns or other
financial information to be presented to the EPA.? If 'yes', please identify each asset by
type of asset, estimated value, and location.
k. Additional Information The EPA encourages you to provide any additional
information which substantiates your inability to pay claim. This can include an
explanation of economic events that are not reflected in the above questions and that may
have a material impact on the your ability to pay.
Also, please be aware that the EPA may request additional information as part of its
review of this case material.
ATPIndividualRequest.wpd
-------
INDIVIDUAL ABILITY TO PAY CLAIM
Financial Data Request Form
This form requests information regarding your current financial status. The data will be used to
evaluate your ability to pay for environmental clean-up or penalties. If there is not enough space
for your answers, please use additional sheets of paper. Note that we may request further
documentation of any of your responses. We welcome any other information you wish to
provide supporting your case, particularly if you feel your situation is not adequately described
through the information requested here.
Financial data should be entered for the last day of the month preceding this month.
Certification
Under penalties of perjury, I declare that this statement of assets, liabilities, and other
information is true, correct, and complete to the best of my knowledge and belief. I further
understand that I will be subject to prosecution by the Environmental Protection Agency to the
fullest extent possible under the law should I provide any information that is not true, correct,
and complete to the best of my knowledge.
Signature
Date
Name:
Spouse's Name;
Address:
County of Residence:
-------
PART I. BACKGROUND INFORMATION
1. MEMBERS OF HOUSEHOLD (List the head of the household and all persons
living with you)
Name
Age
Relationship to Head
of Household
Currently
Employed?
2. EMPLOYMENT (List all jobs held by persons in household)
Name
Employer
Length of
Employment
Annual
Salary
-------
3. INCOME (List all income earned by persons in household. If members of the
household other than you and your spouse earn income, please itemize on separate
page.)
Source
Wages/Salaries
Sales Commissions
Investment Income (interest,
dividends, capital gains, etc.)
Net Business Income
Rental Income
Retirement Income
(Pension, Social Security, etc.)
Child Support
Alimony
Other Income
(please itemize)
Gross (Pre-Tax)
Period of Payment (check one)
Weekly
Monthly
Quarterly
Yearly
-------
PART H, CURRENT LIVING EXPENSES
Please list personal living expenses which were typical during the last year and indicate if any of these values are likely to change
significantly in the current year. Please do not include business expenses. If you are the owner of an operating business, please
attach any available financial statements.
Expense
A. Living Expenses
1. Rent
2. Home maintenance
3, Auto fuel, inRintenance, other transp.
4.TTfilifiei
a. Fuel (gas, oil, wood, propane)
b. Electric
c. Water/sewer
d. Telephone
5, Food
6. Clothing, personal care
7, Medical costs
B. Debt Payments
1. Mortgage payments
2. Car payments
3. Credit card payments
4. Educational loan payments
C. Insurance
1, Household insurance
2. Life insurance
3. Automobile insurance
4. Medical insurance
D, Taxes
1 . Property taxes
2. Federal income taxes
3. State income taxes
4. FICA
E. Other Expenses
l.Childeare
2. Current School tuition/expenses
3. Legal or professional services
Amount
Period of Payment (check one)
Weekly
Monthly
Quarterly
Yearly
For Ascncv Use Onlv
-------
4. Other (itemize on separate page)
Total Current Expenses
PAST III NET WORTH
Please provide the following information to the best of your ability. Data should be as current as
possible. Estimates are acceptable. Note estimated items with an "E",
If you are the sole proprietor of a business, list business assets and liabilities in addition to personal
assets and liabilities, and mark these business entiles with a "B",
1. BANK ACCOUNTS (Checking, NOW, Savings, Money Market, CDs, etc.)
Name of Bank or Financial Institution
Type of Account
For Agency Use Only - Total Current Balance in Bank Accounts
Current Balance
2.
INVESTMENTS (Stock, Bonds, Mutual Funds, Options, Futures, Real Estate
Investment Trusts (REITs), etc.}
Investment
Number of Shares or Units
For Agency Use Only - Total Current Market Value of Investments
Current Market Value
3, RETIREMENT FUNDS AND ACCOUNTS {IRA, 401(k), Keogh, vested interest in
company retirement fund, etc,}
Description of Account
For Agency Use Only - Total Estimated Market Value of Retirement Funds and
Accounts
Estimated Market Value
4. LIFE INSURANCE POLICIES (Whole Life, Universal Life, etc.)
Policy Holder
Issuing Company
Policy Value
Cash Value
-------
For Agency Use Only - Total Value of Life Insurance Policies
5a.
VEHICLES USED FOR COMMUTING PURPOSES (Cars, Trucks, Motorcycles,
etc. Only list up to two vehicles used for commuting purposes.)
Model
Year
For Agency Use Only - Total Estimated Market Value of Vehicles
Estimated Market Value
5b.
OTHER VEHICLES (Cars, Trucks, Motorcycles, Recreational Vehicles, Motor
Homes, Boats, Airplanes etc.)
Model
Year
For Agency Use Only - Total Estimated Market Value of Vehicles
Estimated Market Value
6. PERSONAL PROPERTY (Household Goods and Furniture, Jewelry, Art, Antiques,
Collections, Precious Metals, etc. Only list items with a value greater than $500.00)
Type of Property
For Agency Use Only - Total Estimated Market Value of Personal Property
Estimated Market Value
7a. REAL ESTATE — PRIMARY RESIDENCE (Home — List only one such residence.)
Location
Description of Property
For Agency Use Only - Total Estimated Market Value of Real Estate
Balance
Owed on
Mortgage
Estimated
Market
Value
-------
7b. OTHER REAL ESTATE (Land, Buildings, Land with Buildings)
Location
Description of Property
For Agency Use Only - Total Estimated Market Value of Real Estate
Estimated Market Value
8. OTHER ASSETS
Type of Asset
For Agency Use Only - Total Other Assets
Estimated Market Value
9. CREDIT CARDS AND LINES OF CREDIT
Credit Card/Line of Credit (Type)
Owed To
Monthly
Payment
For Agency Use Only - Total Balance Due on Credit Cards and Lines of Credit
Balance Due
-------
10. VEHICLE LOANS (Cars, Trucks, Motorcycles, Recreation Vehicles, Motor Homes,
Boats, Airplanes, etc.)
Vehicle (Model and Year)
Owed To
For Agency Use Only - Total Balance Due on Vehicle Loans
Balance Due
Monthly
Payment
Start
Date
End
Date
11. FURNITURE AND HOUSEHOLD GOODS LOANS:
List Item
Owed To
For Agency Use Only - Total Balance Due on Furniture and
Household Goods Loans
Balance Due
Monthly
Payment
Start
Date
End
Date
12. MORTGAGES AND REAL ESTATE LOANS
Type of Loan
Owed To
Property Secured
Against
For Agency Use Only - Total Balance Due on Mortgages and Real Estate
Loans
Balance
Due
Monthly
Payment
Start
Date
End
Date
-------
13, OTHER DEBT (Amounts due to individuals, fixed obligations, Taxes Owed,
Overdue Alimony, Child Support, etc.)
Type of Debt
Owed To
For Agency Use Only - Total Balance Due on Other Debt
Balance
Due
Monthly
Payment
Start
Date
End
Date
-------
PART IV. ADDITIONAL INFORMATION
Please respond to the following questions. For any question that you answer "Yes", please provide
additional information on separate pages or at the bottom of this page.
QUESTION
1.
2.
3.
4.
5.
6.
7.
Do you have any reason to believe that your financial situation
will change during the next year?
Are you currently selling or purchasing any real estate?
Is anyone (or any entity) holding real or personal property on
your behalf (e.g., a trust)?
Are you a party in any pending lawsuit?
Have any of your belongings been repossessed in the last three years?
Are you a Trustee, Executor, or Administrator?
Are you a participant or beneficiary of an estate or profit-sharing plan?
8. Have you been denied a loan or new credit card within the last six
months?
9.
10.
Have you declared bankruptcy in the last seven years?
Do you receive any type of federal aid or public assistance?
YES
NO
Explanations for any of the above questions with a "Yes" answer.
Question
Number
Explanation
Explanations for any of the above questions with a "Yes" answer.-. (continued)
Explanation
Question
Number
10
-------
FINANCIAL DISCLOSURE STATEMENT
TO BE COMPLETED BY INDIVIDUAL DEFENDANT
A. GENERAL INSTRUCTIONS - READ CAREFULLY
The information requested in the following form is to be submitted concerning a current case in connection
with an asset investigation. Prior to completing and submitting this form, you should discuss this matter and
this form thoroughly with your own attorney.
The purpose of this form is to determine what assets you may have or are in control of. If you are married
or have a live-in companion, you must list assets held by your spouse or companion, as well as yourself, and
show whether each asset is owned individually or jointly. By completing and signing this financial disclosure
statement, you acknowledge that the information provided will affect action by the United States Department
of Justice and further understand that any false answers can lead to the termination or nullification of any plea
agreement ultimately reached and/or prosecution for false statements as provided under Title 18, United States
Code, Section 1001 (maximum prison sentence of five (5) years and/or a fine of not more than $250,000).
Each separate question must be answered completely. If the answer is "none" you must state "none." Do not
leave any question unanswered.
You must date and initial each page, and sign the last page and accompanying Release. If there is insufficient
space on the form, please attach additional sheets as necessary, and date and initial each additional page.
ACKNOWLEDGMENT* IJOUEgEESgNTJED BY COUNSEL
I am am not (check one) represented by counsel hi the collection of this debt. If I am
represented by retained or appointed counsel, I acknowledge having reviewed the foregoing instructions
with my counsel. My counsel's name is •
Date: Name;
Last First Middle
Signature
Authority for the solicitation of the requested Information Includes one or more of the following: 5 U.S.C. § 301,901 (see Note, Executive Order
6166, June 10,1§33); 38 U.S.C. § S01 -SWA; 26 U.S.C, § 1651,3201 -3208j 31 U.S.C. f 3701 -3731; 44 U.S.C. § 3101; 4 C.F.R. § 101 -101.8; 28 C.F.R.
§ 0.180, 0.171 and Appendix to Sybpart Y; 18 U.S.C. § 38B4(dM3).
The principal purpose for gathering this information Is to evaluate your ability to pay the government's claim or judgment against you. Routine
uses of the information are established in the following U.S. Department of Justice Case File Systems published In Vol. 42 of the Federal Register,
Justice/CIV*001 at page S332; JustlcefTAX-OOl at page 1S347; JusticeAJSA-005 at pages 53406-53407; Justlce/USA-007 at pages 53406-53410;
Jusrtlce/CRIM-016 at pages 12774. Disclosure of the information is voluntary. If the requested Information IB not furnished, the United States may
seek disclosure through other means.
-------
FINANCIAL DISCLOSURE STATEMENT
A. PERSONAL IDENTIFYING DATA
FUIL
NAME:
(Uurt)
Circle appropriate title: Mr. Ms, Mrs, Dr.
2. STATE ALL OTHER NAMES BY WHICH YOU HAVE EVER BEEN
KNOWN.
b.
3. YOUR DATE OF BIRTH 4. YO
MONTH/DAY/YEAR NO. A
/ 119 No.
Stale
8. PRESENT HOME ADDRESS
UR DRIVER'S LICENSE
ND STATE OF ISSUANCE.
AMnu
SUtt Zip CM*
EDUCATION
11. PROVIDE YOUR EDUCATIONAL
BACKGROUND,
12, PROFESSIONAL LICENSES!
(Unt)
Jr. 11!
a.
c.
6,
5, YOUR SOCIAL
SECURITY NO.
/ / (
9, DATES OF RESIDENCE 10
/ /19
(o Present
Chock all th
Less Than 12 years
High School Diploma or equivalent
Vocational School
College (provide degree or no. of years
attended
Fort Graduate (provide degree of no. of yean
attended
Vocational School
Types
Expiration Da
(Middle)
YOUR HOME 7. YOUR CELLULAR
TELEPHONE TELEPHONE
NUMBER NUMBER
> ( 1 -
. YOUR EMAIL ADDRESS
a
at apply location of School
te:
B. EMPLOYMENT INFORMATION
13. FULL NAME OF PRESENT EMPLOYER:
14. OCCUPATIONS
15. DATES OF EMPLOYMENT: From:
16. BUSINESS ADDRESS: ^
/ 119
to Present
State Zip Tel, No.f
)
PREVIOUS EMPLOYER (List all prevtoui employers for p»rt five (5) yean.) Pleaie Include addreuia and dates of employment
17. COMPANY NAME!
OCCUPATION:
ADDRESS:
Dates Emuiovtds From! /
/19 to I 119
STATE ZIP Telephone No.( J
OSAO (IWJ-Q4/OS) Page-1
Initials
-------
18, COMPANY NAME:
OCCUPATIONS
ADDRESS:
19, COMPANY NAME:
OCCUPATIONS
ADDRESS!
20. COMPANY NAME!
OCCUPATION:
ADDRESS:
Dates Employed; From: /
119 to / /I9
STATE ZIP Telephone No.( >
Date! Employed: From! /
J\9 to / /19
STATE ZIP Telephone No,{ )
Dates Employed: From: /
/I9 to / /I9
STATE ZIP Telephone No.f )
C. EARNINGS (SALARY, WAGES, COMMISSIONS, ETC.) AND BACKGROUND INFORMATION
21. YOUR GROSS SALARY FROM YOUR PRESENT EMPLOYER. $
MARK ONE; a. Weekly Q b. BI-WecUyQ c. Monthly Q
22. ARE YOU CURRENTLY AN ACTP
NATIONAL GUARD AND RESERVES?
a, IF YES, PLEASE GIVE THE NAME,
ENLISTMENT.
ft. MEMBER OF THE ARMED FORCES, INCLUDING
d, YOUR $
TAKE
HOME
PAY.
Yes
No
ADDRESS AND TELEPHONE NUMBER OF YOUR UNIT AND HOW MANY YEARS REMIN1NG IN YOUR
b. Unit
e.Term
23. DO YOU HAVE ANY OTHER EARNED INCOME FROM ANY OTHER SOURCE OR
BUSINESS?
Ye*
No
«. IF YES, PLEASE IDENTIFY EACH SOURCE AND STATE YOUR MONTHLY GROSS EARNINGS (SALARY, WAGES, COMMISSIONS. ETC.)
FROM EACH SOURCE,
b. Source
c. Income
U3A.O (IAU-04/Oe) Page-2
Initials
-------
24. GARNISHMENT: An yam or your spouse/companion's wages under garnishment at this time?
IF YES, PROVIDE SPECIFIC DETAILS.
YM
No
25, LIST EACH PREVIOUS HOME ADDRESS (Include ill permanent or temporary residences and dates of Occupancy for the last five (5) year:.)
a. Dates of residence: Addre
b. Date* of residence: Addre
c, Dates of residence: Addri
d. Dates of residence: Addre
u City
State Zip Code
is City
State Zip Code
as Glty
State Zip Code
u City
State Zip Code
16. RENTAL AGREEMENT. Do you or your spouse/companion rent the premiss on which you live? If YES
the following:
' Name of Landlord b. Address/telephone num
1 Landlord
her of e. Payment d. Rent Faym*
Schedule (weekly,
montfaly^nmiiHy)
$
picas* complete Yes
No
at c. Utilities f. Depositor
included in rent other funds held
by landlord
$
27. MARITAL STATUS (Mark one boi to show your current marital itahw and provide Information about your ipouse{s) below.).
a. Never Married: LJ b. Married LJ c. Separated :U
28, NAME OF SPOUSE/COMPANION
(Last)
«u SPOUSE/COMPANION'S DATE OF BIRTH
Month/Daj/Ye»r
1 119
e, SPOUSE/COMPANION'S OCCUPATION
d. Legally Separated LJ e. Divorced LJ
(Firit)
b. SPOUSE/COMPANION'S HOME
TELEPHONE NUMBER
( )
f. Widowed LJ
(Middle)
e. SPOUSE/COMPANION'S
CELLULAR TELEPHONE NUMBER
( )
d. BUSINESS TELEPHONE NUMBER
( )
29, SPOUSE/COMPANION'S EMPLOYER
B, NAME
b. ADDRESS
STATE ZIP
Telenhone No.
UiAO (IMT-04/06) Page-3
Initials
-------
30. LIST NAME OF EACH FORMER SPOUSE AND DATES OF MARRIAGE(S) DATES OF MARMAGE
a. Name
b. Name
c, Name
d> Name
Proms / /19 »o / /19
From: 1 119 to I J19
From: / /19 to / 119
from: 1 119 to / /19
31, DEPENDENT CHILDREN/RELATIVES (Lilt type of reUtiomhip and date of birth of each person Us ted.)
a. Complete Nime(s)
b. Relationship
c. Date of Birth
d. Cellular telephone e. Do these relatives reside
number with you. (Circle one)
YES NO
YES NO
YES NO
YES NO
YES NO
YES NO
32, CHILD SUPPORT PAYMENTS RECEIVED - Do you or your spouse/ comp»n!on receive child support
payments? If yes, complete the following;
Name of dependent
Dependent*!
Date of Birth
Name of non-custodial parent
CHILD SUPPORT PAYMENTS MADE - Do you or your qxnuc/comptn
answer the following:
Name of dependent
Dependent's
Date of Birth
Name of Custodial Parent
on make child support payments? If yes,
Name of non-custodial parent
Name of Cuitodlal Parent
Ye$
No
List arrearage (if any)
Yes
No
List arrearage (If any)
I!
1
TJSAO (IAN-04/06) Page-4
Initials
-------
33. Do you receive or expect to receive aid to families with dependent children, unemployment compensation or any other type of assistance from the United
States, your cnro stale, any other governmental agency or any other person? If yes, list the source and amount.
a. Source of Payment (name of
• ion, state, etc.)
b. Program
c. Payment Amount
d. Payment schedule
34. Name of each bank, credit union and any other financial institution or company with which you, your spouse/companion, or any other person or entity
associated with you have or have ever had any account at any time during the past flve (5) years.
a, Nime of Financial Institution and Address
b. Name(i) on Account
e. Account No. and Type
d. Current Balance in
Account
35, SAVINGS BONDS: Do you, your spouse/companion or your defendants own U.S. Savings Bonds?,
». Demoninatlon of Bond
b. Name{s) on Bond
c. Purchase Date
36. INDIVIDUAL RETIREMENT ACCOUNT. Do you or your spouse have any Individual Retirement Account ("IRA"),
Keogh Account, other retirement account or savings, or any Interest In any profit-sharing or pension plan?
If YES, please identify each account by name of financial institution, address, account number and name on account.
a. Name of Financial Institution and address
b. Name(i) on Account
c. Account No. And Type
37. SAFETY DEPOSIT BOXES: Do you, or your spouse, or any other person maintain or rent a safety deposit box fa your
name(i) or in any other name? If YES, give name and address of bsnks(s) and name(s) utilized to open or maintain the
safety deposit boi(es).
a. Nsme of Financial Institution sndAddren
b. Safety Deposit Box No.
c. Account No.
d. Value
Yes
No
d. Current Balance
In Account
Yea
No
d. Type of Account
OTAO (IAN-04/06) P«ga-5
Initials
-------
D. ASSETS AND LIABILITIES
38. Do you or your spouse/companion have any interest in any real estate anywhere In the world? (Thisinclud
currently being sold under contract) If YES, Identify each real estate interest as stated below.
t. Complete Address b
(Include State and County)
g. LEASEHOLD INTERESTS. If any real
estate holdings ire income producing
properties, identify teninti name and
address and current lease temu. Provide
income itatemens and/or tax returns Tor
the l»st two yean for each rental property,
Name on
Deed
Name on tea
Address:
City;
Zip:
e. Purchase Price
$
S
s
$e:
TERM;
d. Fair Market
Value
$
S
S
Ye*
n »n¥ real estate
No
e. Balance Due f. Monthly g, DateMlg,
on Mortgage Payment Paid Off
S S
S S
s s
State
Name on lease:
Address:
City:
Zip;
TERM;
State
Name on lease:
Address;
Cily:
Zip:
TERM:
State
39, Do you or your spouse/ companion or dependents own or'have possession of any automobiles, boats, aircraft*, oilier vehicles or mobile homes? If YES,
specify at stated below.
a, DeKriptton: Include Year, Make and Model
Automobile
Automobile (2nd)
Automobile (3rd)
Boat
Truck
Recreational Veehicles (eampert, Motor homes)
Utility Trailer
Any other vehicle* (Including ATVt, Jct-Sldt, snowmobiles)
Aircraft
Mobile Home
Motorcycle
b. Do you own the vehicle or property?
Yw
No
e. Purchase Price
$
$
S
$
$
$
$
$
$
S
$
d. Loan Balance
$
$
$
$
$
$
$
$
S
$
$
DSAO (1AM-04/06) Page-6
Initials
-------
140. Do you or your spouse/companion or dependents own or have possession of Any sporting goods? If YES, specify as slated below.
" "
. , Description: Include Year, Mate and Model
Guns
Hunting Gear
Recreational Equipment (pool table, plnball machine)
Swimming Pool
Jacuzzi/Hoi Tub
Sinn*
Any other equipment
b. Do you own the property?
Yes
No
c. Purchue Price
S
$
S
S
S
$
S
d, Loan Balance
$
$
S
S
S
$
$
41. Do you or your spouse/companion or dependent! own or hive poitesilon of any miscellaneous assets? If YES, specify u staled below.
a, Description:
Animals
Seiwn Ttek*t»
Time Shares
E-Trade Account!
jdnen/Deposlt*/Advanc» Payments
Mineral Interest*
Other (describe)
b, Do you own tbe asset?
Yes
No
42, SECURITIES: Do you or youripoiue own any Securities (bonds, stocks, mutual funds, etc.)?
If YES, please furnlih toe following Information for each such awet.
a, Nameof Issuing Company
b. Number of
Unit* or
Shares
c. Purchue Price
S
$
$
S
$
S
$
d. Lain Balance
$
$
$
$
S
$
Ye*
No
c. Fair Market d- Amount of
Value Indebtedness
e. Are yon a member of any Investment or barter trading clubs? If yes, provide account itatementa for the last two years showing Yes
Investments «nd current club value.
No
DSAO (IAN-04/OG) Page-?
Initimls
-------
43. GIFTS/TRANSFERS. Hive you or your spouse transferred, Mid, gifted, or in any other w»y disposed of any assets
or property with a cert or filr market value of $300 or more at any rtme In the past three (3) years?
If YES, please furnish the following tnfomutlon for each such *sset.
a. Description of Asset
b. Date of
Tramfer
c. Fair Market d. Amount
Value When Received
Transferred
f S
S $
S S
S $
44. RECEIVEABLES Do you or your spouse or your companion have my accounts receivable or nates owed to you? ff YES,
specify as stated below.
a. Account Name
b. Book Value
$
S
$
c. Liquidation d. Amount of
Value Indebtedness
S S
S S
S $ _
45. JUDGMENTS Do you or your spouse hive any judgment* owed to you? If YES, spec! fy is stated below.
Yes
No
e. Name and
Relationship of
Transferee to
• Defendant
Yes
Ko
e. Date, If Pledged
Yes.
No
». Amount of Judgment b. Full Name of Debtor
46. list all other forms of compensation which you or your spouse receive and which you have not already disclosed (Including Insurance annuity, disability
benefits, lottery winnings, pensions, etc.)
a. Identify Source of b. Schedule for Receipt (c,g., Weekly, Monthly)
Compensation
c. Amount
$
$
1
$
47. Doet anyone or any entity owe may money to you or yoar spouse not prevlauily dMoied? If yet, please state specific
Information listed below.
a. Name of Penan/Entity
b. Their Address
Yes
No
c. Date of Loin d. Amount Owed
I
I
OSAO (IAN-04/065 ?af*>8
Initials
-------
48, Do you or your spouse hive any life insurance policy now in force with right to change beneficiary reserved?
If YES, state specific information listed below.
Yei
Company Name
b. Policy
Number
c. Amount of
Policy
d. Present Cash
Surrender
Value Plui
Accumulated
Dividends
e. Policy Loan
f, Date
Made
g. Premium
Date
h. Amount
of
Payments
Made
49, Do you or your spouse hive any life Insurance policy assigned or pledged on my indebtedness?
Yes
No
If any of the policies listed In Item 49, above, are assigned or pledged on indebtedness, except with Insurance companies, give the following Information ibout
each poltcys . ^^^^^^^^
a. Policy Number
b. Name and Address of Pledge or Assignee
c. Amount of Indebtedness
Date, if
Pledged
50. Do you or your spouse/companion or dependents own or h»ve any ownership Interest in any jtwelry, antiques, precious
m*Wi,art objects, itamp or eota collections or other asset! of any Mad wltta total value in excess of 5500? If YES, state
specific Information listed below.
Yes
No
a. Awe*
b. Date
Acquired
c. Value at
Acquisition
d. Present Value
Yes
51, Do you or your spouse/companion or dependents own any furniture and fixtures, Including machinery or equipment?
If YES, state specific information listed below.
No
B. Description
b, Purchase Price
c. Current Value
d. Amount of Indebtedness
e. Date, if Pledged
1. Furniture and Fixtures (business)
2, Furniture (household/residence)
3, Machinery (specify type)
4. Equipment (specify type)
Total
DSAO (IAH-04/06) Page-9
Initials
-------
52. STATEMENT OF YOUR INCOME
a. Gross Income *
b. Salaries, Wages, Commissions
c. Dividends
d. Interest
e. Income (torn business or profession
f, Partnership Income
g. Capital Gains or Losses (from Schedule D,
Form 1040)
b, Annuities and pensions
I. Rents and royalties
j, Income from estates and trusts
k. Total Cross Income
1, Federal Income Tax Itemized Deductions
m. Contributions
n. Interest Paid
o. Taxes Paid
p. Cssuilty Losses (by fire, storm, etc,}
q, Bad Debts
r Depreciation
S. Total Deductions
t. Net Income (loss)
u. Nontaxable income
v. Total Net Income
Per Pay Period
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$'
S
$
J
J
This Year to Date
$
$
$
$
$
$
$
$
S
$
$
$
S
$
$
$
5
$
S
$
$
Last Year Total
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
S
5
$
53. Hare you any Inheritance, life Interest or remainder Interest, either vested or contingent, In any trust or estate, or are
you a beneficiary of any trust or estate? ITY1S, pleas* furnish a copy of the Instrument creating the trust or estateand Yes
also, give the following information.
a. Name of Trust or Estate
b. Present c. Value of
Value of Assets Interest
Ho
Your d. Annual Income
Received from this Source
$ $ s
$ $ $
$ $ *
$ $ $
U3AO (IAN-04/OS) Paga-10
Initials
-------
54. Are you the grantor or donor of any trust, or the trustee or fiduciary for any trust? If YES, please furnish a copy of
the Instrument creating Lhe trust and give present value of corpus of trust, and any other pertinent Information,
Trust
55, Have you an; oilier assets or any interest in assets, either actual or contingent, other than those previously identified
here? If YES, please describe each such asset Including present value.
a. Description
56. Are foreclosure proceedings pending on any real estate which you ORB or have an interest in?
Yes
No
b. Value of Trust
Yes
No
b. Presort Value
Yes
No
If YES, please give location of real estate, court caption and case number of foreclosure proceedings.
a. Court Caption;
Location;
b. Court Caption;
Local] DO:
Court Caption:
Location:
Case No,
Case No.
Case No.
Was the Government made a party to any such foreclosure suit? If YES, please describe.
Yes
No
57. Do yon have any bankruptcy or recdveranlp proceedings pending? Have you Bled any bankrutpcy proceeding in the
last 7 years? If YES, list court caption and case cumber of all pending cases.
a. Court Caption;
Location:
b. Court Caption:
Location:
c. Court Caption:
Location;
Yes
No
Caw No.
Date Closed (If applicable)
Case No.
Date Closed (if applicable)
Case No,
Date Closed (if applicable}
58. What is the prospect of an Increase ta value of your assets or your presort Income? (Please give a general statetntnt,)
DSAO (1AN-04/06) Page-11
Initials
-------
59. Are you a parly to any civil lawsuit now pending? If YES, please describe each such Lawsuit by court name and case
number.
Yes
No
a, Court Caption:
Location:
Case No.
b. Court Captions.
Location;
Case No.
c. Court Caption;
Location:
Case No,
60. Is anyone holding any money or other property of any Idad on your behalf or for you?
If YES, please identify each persoa by name and address and amount of money or other property beta)
a. Name
b. Address
Yes
No
l held for you.
c. Amount of Money/or Value of Property Being
Held For You.
$
$
$
$
$
61. Do you receive, or under any circumstances expect to receive, any benefits from m claim for compensation or
damages? If YES, please Identify In specific detail.
Yes
No
62, Did you fflc a federal Income tax return last year?
Yes
No
Please attach complete copies of each federal Income tax return yon (Bed for the last three (3) yean. Mark yes or no to
Indicate whether copies of your ta returns are attached as required.
63. Has the IKS audited any of your tax returns?
64. Are your federal taxes current?
-------
I 66. CREDIT CARDS;
credit?
Do you have any credit card, charge account or line of
Yes
No
, yes, please identify each type of account or credit/charge card, the name and address of the Issutr, the credit limit,
.Aount owed and the minimum monthly payment.
ft. Type of Account or Card
b. Name and Address of Issuer
c. Credit Limit
d. Amount
Owed
Monthly
Payments
07. OUTSTANDING LOANS; Do you h«e any outstanding loans payable to
hanks, finance companies, etc?
Yea
No
If yes, pleas* Identify each type of account, the name and address of the Issuer, the credit Emit, amount owed and the minimum monthly payment.
B. Type of Account
b. Name and Address of Institution
c. Credit limit
d. Amount
Owed
e. Minimum
Monthly
Payments
68. JUDGMENTS Do you or your sponie hive my Judgment* «|«laft yoB? If YES, apedfy u ittted btlow.
Yes
No
Amount of Judgment
b. Full Name of Creditor
69. OTHER ASSETS; Do you own or control any asset or thing of value, mcJudlng cash or any certificate of deposit or
other Instrument or account, not previously disclosed with » value In excess of $300?
Yes
No
If ves. dense Ideotlfr each such asset or thine of value and state the worth of each and tts present location.
a. Asset
b. Current Value
c. Location
USAO (tAN-04/06) Page-13
Initials
-------
70. PRESENT FINANCIAL NEEDS
In order to help determine your financial needs as well as those of your dependents, provide the following Information as to present monthly Income and
expenses.
EARNINGS/OTHER INCOME
a. Net salary
b. Overtime
c. Part-tlmojob
d. Commission
e. Net profit from business
f. Net rental Income
g. Pension
hi Social Security
I. Interest
j. Dividends
k. Alimony/Child support
1. Income of other dependents
m. Social Services
n. Food Stamps
o. Benefits from the U.S.
p. Disability Compensation
4. Military Pay
i. Income from relatives
t. Other (lottery winnings,
royalties, user fees, tax refunds,
etc.)
L TOTAL
Youri
Spouse
Total
MONTHLY EXPENSES
a. Home Rent or Mortgage
b. Utilities: Electric
Heating OILf GasAVood
Water/Sewer
Telephone
Cdl Phones
c. Groceries
d. Insurance:
Auto
Health
Life
Homeowners/ renters
e, Minimum Installment
payments
f. Transportation
g. Medical
h. Clothing
i. Alimony
j. Daycare/Babyrftticg
k. Cable TV/SateBto System
L Tuition (college/private)
m. Child Support
D. Entertainment
o, Personal Care/Hygiene
p. Dry Cleaning/Laundromat
q. Gift*
r. Newspaper/Magazines
a. Tobacco
t . Internet Access
u. Organhatioo/Heallh C!ub
v. Veterinary Fees
w. Charitable contributions
i. Other
y. Other
x. Other
I
!
USAO (IAN-04/06) Page-14
Initials
-------
•Explain folly here any unusual, recurring monthly expenses you have for yourself or any dependent.
71, Criminal AclJvtty
How long were you engaged In the criminal activity to which you pled guilty?
Did you make any gains or profits from the criminal activity? If no, why not?
Where did you deposit and/or spend the {legal gains and profits? list specifically what property you purchased (I.e., can, jewelry, guns).
Name the bani(s)( account name(s), and account numbers) where Dlegal gains and profits were deposited and from which they were spent.
Specifically, identify the location of other gains and profits which were made.
How much, did you viin gftiuMfng with your iflggM profits?
72. Pursuant to the instructions to thb Financial Disclosure Statement, I have attached additional pages to complete this
document*
Yes
No
If YES, there art (Insert Dumber) of supplemental paga attached to tliU Itandal Disclosure Statement.
73. Declaration Under Pgnaltigs of Perjury
With knowledge of the maximum penalties for false statements provided by Title 18 U.S.C. § 1001 |flve
(5) years imprisonment and/or a fine of not more than $250,000} and with the knowledge that this financial
disclosure statement is submitted by me to affect action by the United States Department of Justice, I certify
that the above responses are all true and correct and represent that this is a complete statement of all my
income, assets and liabilities, real and personal, either held in my name or by any others, as well as
expenses as of this date.
Date: Signature; ^__
USAO 0AN-04/06) Page-15 Initials
-------
74. AUTHORITY TO RELEASE INFORMATION
1 hereby authorize the United States Attorney's Office to speak to the following
regarding this debt, if this release is not provided, the United States Attorney will
questions nor provide any information to any other party in this matter.
i, FULL
NAME:
(Last) (First) (Middle)
individuals
not answer
Date Signature
75. AUTHORITY TO OBTAIN CREDIT REPORT
1 hereby authorize the United States Attorney's Office to obtain a credit report at any time,
I understand that my signature below allows the United States to use a credit report for identifying
information as well as for collection of any debt. This permission Is given to the United States
pursuant to 15 U.S.C. § 1681b. That statute provides authority for a credit reporting agency to
furnish my consumer report with my written permission.
NAME:
(Last) (First) (Middle)
Date Signature
76. SPOUSE/COMPANION AUTHORITY TO RELEASE INFORMATION
I certify that I am the spouse/companion of the debtor in this case. By signature below, I am granting the United
States the permission to obtain a copy of my cedit report to verify financial information and assist in the
collection of the debt of this case.
», FULL
NAME:
OuaiO
(FIrat) (Middle)
b. SIGNATURE, OF
SPOUSE/COMPANION
c, DATE OF BIRTH /
/
USAO{IAN-04/06) Pao»-i6 Initials
-------
d, ADDRESS:
U SOCIAL SECURJTY NO. / /
STATE ZIP
f. TELEPHONE NUMBER { )
77. AUTHORITY TO RELEASE INFORMATION
TO WHOM IT MAY CONCERN;
In connection with the financial investigation being conducted by the UNITED STATES
ATTORNEY, I hereby authorize any authorized representative or agent of the UNITED STATES
ATTORNEY bearing this release, or copy thereof, within five years of its date, to obtain any
information in your files pertaining to my employment, military, credit or educational records,
including, but not limited to, academic achievement, attendance, athletic, personal history, and
disciplinary records, medical records, credit records, financial records, city, state, and federal tax
records, returns and supporting documentation; bank records or records of any financial institution
or entity; and records maintained by any city, county, state, or federal agency. 1 hereby direct you
to release such information upon request of the bearer.
This release is executed with fuii knowledge and understanding that the information will be
used in connection with the consideration of my liability on a debt claimed by the UNITED STATES
and my financial ability to pay said debt and/or to determine what income and assets I may have
ailable to contribute toward restitution, fines and forfeitures of any nature, and that the
...formation will be disseminated only to those individuals or agencies directly involved in this
determination or to fulfill other obligations imposed bylaw, regulation or presidential directive or
executive order,
I hereby release you, as the custodian of such records, and school, college, university or
other educational institution, financial institution, hospital, or other repository of medical records,
credit bureau, lending institution, consumer reporting agency, retail business establishment, or
public agency, including its officers, employees, or related personnel, both individually and
collectively, from any and all liability for damages of whatever kind, which may at any time result
to me, my heirs, family or associates because of compliance with this authorization and request
to release information, or any attempt to comply with it. Should there be any question as to the
validity of this release, you may contact me as indicated below.
». FULL
NAME!
(Lait) (Flwt) (Middle)
Date Signature
USAO (IAN44/06) Page-17 Initials
-------
Acronyms and Abbreviations
AA Assistant Administrator
AAG Assistant Attorney General
ACL Alternate Concentration Limit
ADR Alternative Dispute Resolution
AM Action Memorandum
AO Administrative Order
AOA Advice of Allowance
AOC Administrative Order on Consent
AOC Area of Contamination
AR Administrative Record
ARARs Applicable or Relevant and Appropriate Requirements
ARCS Alternative Remedial Contracts Strategy
ASTSWMO Association of State and Tribal Solid Waste Management Organizations
ATP Ability To Pay
BFPP
BIA
BLM
BPA
BRAC
BUREC
Bona Fide Prospective Purchaser
Bureau of Indian Affairs
Bureau of Land Management
Blanket Purchase Agreement
Base Realignment and Closure
Bureau of Reclamation
CA Cooperative Agreement
CAA Clean Air Act
CAG Community Advisory Group
CBI Confidential Business Information
CD Consent Decree
CD-ROM Compact Disk Read-Only Memory
CEC CERCLA Education Center (OSWER)
CERCLA Comprehensive Environmental Response, Compensation, and Liability Act of
1980
CERCLIS Comprehensive Environmental Response, Compensation, and Liability
Information System
CFR Code of Federal Regulations
Cl Civil Investigator
CIC Community Involvement Coordinator
CLP Contract Laboratory Program
CO Contracting Officer
COI Conflict of Interest
COR Contracting Officer's Representative
CR Community Relations
CR Cost Recovery
CRC Community Relations Coordinator
CRC Cost Recovery Coordinator
CRP Community Relations Plan
CWA Clean Water Act
-------
DA
DAA
D&B
DCN
DD
DFO
DOD
DoD
DOE
DOI
DOJ
DOT
DPO
DQO
Deputy Administrator
Deputy Assistant Administrator
Dunn and Bradstreet
Document Control Number
Division Director
Designated Federal Official
Deputy Office Director
Department of Defense
Department of Energy
Department of Interior
Department of Justice
Department of Transportation
Deputy Project Officer
Data Quality Objective
EDGAR
EE/CA
EJ
EMSL
ENRD
EPA
EPAAR
EPCRA
EPIC
EPM
EPS
ERGS
ERNS
ERS
ERT
ESAT
ESD
ESD
ESI
Electronic Data Gathering, Analysis, and Retrieval
Engineering Evaluation/Cost Analysis
Environmental Justice
Environmental Monitoring and Systems Laboratory
Environment and Natural Resources Division (DOJ)
Environmental Protection Agency
EPA Acquisition Regulation (Manual)
Emergency Planning and Community Right-To-Know Act of 1986
Environmental Photographic and Investigation Center
Enforcement Project Manager
Environmental Protection Specialist
Emergency Response Cleanup Services
Emergency Response Notification System
Environmental Response Services
Environmental Response Team
Emergency Services Assistance Team
Environmental Services Division
Explanation of Significant Differences
Expanded Site Investigation
Enforcement Support Services
FACA Federal Advisory Committee Act
FAR Federal Acquisition Regulation
FEMA Federal Emergency Management Agency
FFA Federal Facility Agreement
FFEO Federal Facilities Enforcement Office (OECA)
FIFRA Federal Insecticide, Fungicide, and Rodenticide Act
FINDS Facility Index System
FMD Financial Management Division
FOIA Freedom of Information Act
FR Federal Register
FRC Federal Records Center
FS Feasibility Study
FSAP Field Sampling and Analysis Plan
-------
I" continued
FTE Full-Time Equivalent
FTP File Transfer Protocol
FUDS Formerly Used Defense Sites
FWPCA Federal Water Pollution Control Act
FY Fiscal Year
GAAPs Generally Accepted Accounting Principles
GAAS Generally Accepted Accounting Standard
GAO General Accounting Office
GFO Good Faith Offer
GIS Geographic Information System
GNL General Notice Letter
GPRA Government Performance and Results Act
GSA General Services Administration
H
HASP
HAZWOPER
HQ
MRS
HSWA
Health and Safety Plan
Hazardous Waste Operations and Emergency Response
Headquarters
Hazard Ranking System
Hazardous and Solid Waste Amendments (RCRA)
IAG
IFMS
IG
IGCE
IMC
Interagency Agreement
Integrated Financial Management System
Inspector General
Independent Government Cost Estimate
Information Management Coordinator
LAN
LDR
LOE
LSI
LTRA
LUST
Local Area Network
Land Disposal Restrictions
Level of Effort
Listing Site Inspection
Long-Term Response Action
Leaking Underground Storage Tank
M
MARS
MCL
MCLG
MOA
MOU
MSCA
Management and Accounting Reporting System
Maximum Contaminant Level
Maximum Contaminant Level Goal
Memorandum of Agreement
Memorandum of Understanding
Multi-Site Cooperative Agreement
-------
IVI continued
MSDSs Material Safety Data Sheets
MSW Municipal Solid Waste
MUNIS Municipalities
N
NAAG
NARPM
NEAR
NCLP
NCR
NEIC
NEJAC
NEPA
NESHAPS
NETI
NFRAP
NOAA
NOSC
NOV
NPDES
NPL
NRC
NRC
NRDs
NRT
NTCRs
NTIS
National Association of Attorneys General
National Association of Remedial Project Managers
Non-Binding (Preliminary) Allocation of Responsibility
National Contract Laboratory Program
National Contingency Plan
National Enforcement Investigation Center
National Environmental Justice Advisory Council
National Environmental Policy Act
National Emissions Standards for Hazardous Air Pollutants
National Enforcement Training Institute (OECA)
No Further Remedial Action Planned
National Oceanic and Atmospheric Administration
National Association of OSCs
Notice of Violation
National Pollution Discharge Elimination System
National Priorities List
National Response Center
Nuclear Regulatory Commission
Natural Resource Damages
National Response Team
Non-Time-Critical Removals
National Technical Information Service
O&F Operational and Functional
O&M Operation and Maintenance
OAM Office of Acquisition Management
OARM Office of Administration and Resources Management
OD Office Director
ODCs Other Direct Costs
OECA Office of Enforcement and Compliance Assurance (formerly known as OECM)
OECM Office of Enforcement and Compliance Monitoring (now known as OECA)
OEJ Office of Environmental Justice
OERR Office of Emergency and Remedial Response (now known as OSRTI)
OGC Office of General Counsel
OIA Office of International Activities
OIG Office of the Inspector General OMB Office of Management and Budget
OPA Oil Pollution Act of 1990
ORC Office of Regional Counsel
ORD Office of Research and Development
OSC On-Scene Coordinator
OSHA Occupational Safety and Health Administration
OSRE Office of Site Remediation Enforcement (OECA)
-------
continued
OSRTI Office of Superfund Remediation and Technology Innovation (formerly known as
OERR)
OSW Office of Solid Waste
OSWER Office of Solid Waste and Emergency Response
OTIS On-Line Targeting Information System
OU Operable Unit
PA Preliminary Assessment
PA/SI Preliminary Assessment/Site Investigation
PCB Polychlorinated Biphenyl
PCOR Preliminary Close Out Report
PNRS Preliminary Natural Resources Survey
PO Project Officer
POLREP Pollution Report
POTW Publicly Owned Treatment Works
PPA Prospective Purchaser Agreement
PPB Parts per Billion
PPED Policy and Program Evaluation Division (OSRE)
PPM Parts per Million
PR Procurement Request
PRP Potentially Responsible Party
PRSC Post-Removal Site Control
QA Quality Assurance
QA/QC Quality Assurance/Quality Control
QAPP Quality Assurance Project Plan
R&D Research and Development
RA Remedial Action
RA Regional Administrator
RAC Response Action Contractor
RACS Response Action Contracting Strategy
RCMS Removal Cost Management System
RCRA Resource Conservation and Recovery Act
RCRAInfo Resource Conservation and Recovery Act Information System
RD Remedial Design
RD/RA Remedial Design/Remedial Action
RDT Regional Decision Team
Rl Remedial Investigation
RI/FS Remedial Investigation/Feasibility Study
RMP Risk Management Program
ROD Record of Decision
RODS Record of Decision System
RP Responsible Party
RPM Remedial Project Manager
-------
continued
RPO Regional Project Officer
RQ
RRT
RSD
RSE
RSI
RTP
Reportable Quantity
Regional Response Team
Regional Support Division (OSRE)
Removal Site Evaluation
Removal Site Inspection
Research Triangle Park, North Carolina
SACM Superfund Accelerated Cleanup Model
SAM Site Assessment Manager
SAP Sampling and Analysis Plan
SARA Superfund Amendments and Reauthorization Act of 1986
SAS Special Analytical Services
SBA Small Business Administration
SBREFA Small Business Regulatory Enforcement Flexibility Act
SCA State Cooperative Agreement
SCAP Superfund Comprehensive Accomplishments Plan
SCORES Superfund Cost Organization and Recovery Enhancement System
SDWA Safe Drinking Water Act
SDMS Superfund Document Management System
SEE Senior Environmental Employee
SEP Supplemental Environmental Project
SESS Superfund Enforcement Support Service
SETS Superfund Enforcement Tracking System
SF Superfund
SI Site Inspection
SMOA State Memorandum of Agreement
SNL Special Notice Letter
SOL Statute of Limitations
SOP Standard Operating Procedure
SOW Scope of Work
SOW Statement of Work
SREA Superfund Recycling Equity Act
SSC Superfund State Contract
SSI Screening Site Investigation
STARS Strategic Targeting Activities Reporting System
START Superfund Technical Assessment and Response Team
TAG
TAT
TBC
TBD
TC
TCLP
TDD
TDD
TDM
TIO
Technical Assistance Grant
Technical Assistance Team
To Be Considered (Material)
To Be Determined
Time-Critical (Removal)
Toxicity Characteristic Leaching Procedure
Technical Directive Document
Telecommunications Device for the Deaf
Technical Direction Memorandum
Technology Innovation Office (OSWER) (now known as TIP)
-------
T continued
TIP Technology Innovation Program (OSWER) (formerly known as TIO)
TRI Toxic Release Inventory
TSCA Toxic Substances Control Act
TSDF Treatment, Storage, and Disposal Facility
u
UAO
UCC
USAGE
U.S.C.
USCG
USDA
USFWS
USGS
UST
Unilateral Administrative Order
Uniform Commercial Code
U.S. Army Corps of Engineers
U.S. Code
U.S. Coast Guard
U.S. Department of Agriculture
U.S. Fish and Wildlife Service
U.S. Geological Survey
Underground Storage Tank
w
WA
WACR
WAF
WAM
WasteLAN
Work Assignment
Work Assignment Completion Report
Work Assignment Form
Work Assignment Manager
Waste Local Area Network
-------
Glossary
Administrative
Order on Consent
(AOC):
A legal agreement signed by EPA and an individual, business, or other
entity through which the entity agrees to take an action, refrain from
an activity, or pay certain costs. It describes the actions to be taken,
may be subject to a public comment period, applies to civil actions, and
can be enforced in court. AOCs are most commonly used for removal
actions and RI/FSs, but may be used for de minimis and cost recovery
settlements.
Administrative
Record (AR):
Administrative
Subpoena:
Alternative
Dispute
Resolution
(ADR):
Arbitrary and
Capricious:
Arbitration:
The body of documents that "forms the basis" for the selection of a
particular response at a site. For example, the AR for remedy selection
includes all documents that were "considered or relied upon" to select
the response action. An AR must be available at or near every site to
permit interested individuals to review the documents and to allow
meaningful public participation in the remedy selection process. This
requirement does not apply to other ARs, such as those for deletion.
A command issued by EPA requiring testimony and, if necessary, the
production of documents deemed necessary to the administrative
investigation of a site. CERCLA section 122(e)(3)(B) authorizes the
issuance of administrative subpoenas as is "necessary and appropriate"
to gather information to perform a non-binding preliminary allocation
of responsibility or "for otherwise implementing CERCLA section 122."
No legal mandate prohibits the use of an administrative subpoena as
an initial information gathering tool; however, the Agency prefers using
104(e) requests before issuing administrative subpoenas.
A process that allows parties to resolve their disputes without litigating
them in court. ADR involves the use of neutral third parties to aid in
the resolution of disputes through methods that include arbitration,
mediation, mini-trials, and fact finding.
Characterization of a decision or action taken by an administrative
agency or inferior court meaning willful and unreasonable action
without consideration or in disregard of facts or without determining
principle. Under CERCLA section 130(j)(2), a court ruling on a
challenge to a response action decision will apply the arbitrary and
capricious standard of review.
An alternative dispute resolution technique that involves the use of a
neutral third party to hear stipulated issues pursuant to procedures
specified by the parties. Depending upon the agreement of the parties
and any legal constraints against entering into binding arbitration, the
decision of the arbitrator may or may not be binding.
-------
Brownfields: In general, the term refers to real property, the expansion,
redevelopment, or reuse of which may be complicated by the presence
or potential presence of a hazardous substance, pollutant, or
contaminant. The term does not include:
• a facility that is the subject of a planned or ongoing removal
action under CERCLA;
• a facility that is listed or proposed for listing on the National
Priorities List (NPL);
• a facility that is the subject of a unilateral administrative order, a
court order, an order of consent or judicial consent decree that
has been issued to or entered into by the parties under CERCLA,
the Solid Waste Disposal Act (SWDA), the Federal Water Pollution
Control Act (FWPCA), the Toxic Substances Control Act (TSCA), or
the Safe Drinking Water Act (SDWA);
• a facility that is subject to corrective action under SWDA section
3004(u) or 3008(h), and to which a corrective action permit or
order has been issued or modified to require the implementation
of corrective measures;
• a facility that is a land disposal unit with respect to which a
closure notification under Subtitle C of the SWDA has been
submitted, and closure requirements have been specified in a
closure plan or permit;
• a facility that is subject to the jurisdiction, custody, or control of a
department, agency, or instrumentality of the United States for
an Indian tribe;
• a portion of a facility at which there has been a release of
polychlorinated biphenyls (PCBs), and that is subject to
remediation under the TSCA; or
• a portion of a facility, for which portion, assistance for response
activity has been obtained under Subtitle I of SWDA from the
Leaking Underground Storage Tank Trust Fund established under
section 9508 of the Internal Revenue Code of 1986.
Cash Out: j\ settlement that requires PRPs to provide up-front financing for a
portion of the response action, rather than performing the work
themselves. There are several types of cash out settlement. A mixed-
funding cash out settlement requires the settling PRP to provide a
substantial portion of the total response costs whereas a de minimis
cash out settlement requires a minor portion of the response costs to
be paid by the settling PRPs.
-------
CERCLA 106(b)
Reimbursement
Petition:
Petition by an entity, which has complied with a unilateral
administrative order, requesting reimbursement from EPA for
reasonable costs plus interest of conducting a response action. A
person may be entitled to reimbursement if the person can establish
that he or she is not liable for response costs under CERCLA section
107(a) or if the person can demonstrate that the Agency's selection of
the response action was arbitrary and capricious or was otherwise not
in accordance with law.
CERCLIS:
Cleanup
Activities:
Comment Period:
Community
Relations
(Involvement):
The acronym for the Comprehensive Enforcement Response,
Compensation, and Liability Information System; a national
information management system for the CERCLA program. CERCLIS
inventories and tracks releases, accomplishments, expenditures, and
planned actions at potential and actual Superfund sites.
Actions taken to deal with a release or threatened release of a
hazardous substance that could affect humans or the environment.
The term "cleanup" is sometimes used interchangeably with the terms
remedial action, removal action, response, or corrective action.
Period provided for public to review and comment on a proposed EPA
action, rulemaking, or settlement.
EPA's program to inform and encourage public participation in the
Superfund process and to respond to community concerns and
incorporate them into the Agency decision-making process.
Community
Relations Lead Agency staff who works to involve and inform the public about the
(Involvement) Superfund process and cleanup actions.
Coordinator (CRC
orCIC):
Community
Relations Plan
(CRP):
A document that identifies techniques used by EPA to communicate
effectively with the public during the Superfund cleanup process at a
specific site. This plan describes the site history, the nature and
history of community involvement, and concerns expressed during
community interviews. Additionally, the plan outlines methodologies
and timing for continued interaction between the Agency and the public
at the site.
-------
Consent Decree
(CD):
Contribution:
A legal document, approved by a judge, that formalizes an agreement
reached between EPA and one or more potentially responsible parties
(PRPs) outlining the terms under which that PRP(s) will conduct all or
part of a response action, pay past costs, cease or correct actions or
processes that are polluting the environment, or comply with
regulations where failure to comply caused EPA to initiate regulatory
enforcement actions. The CD describes the actions PRPs will take, is
subject to a public comment period prior to its approval by a judge,
and is enforceable as a final judgment by a court.
A legal principle according to which an entity can seek to recover some
of the response costs for which it has already resolved liability with the
United States. For example, when several PRPs are liable for a
hazardous substance release, EPA is not required to pursue all of the
PRPs. If EPA settles with or wins its case against a subset of PRPs,
then the right of contribution enables the PRPs (i.e., the settling PRPs
or those against whom a judgment is rendered) to seek recovery of a
proportional share from other PRPs who were not named as defendants
in EPA's suit or settlement, but who nonetheless contributed to the
release.
Contribution
Protection:
Cooperative
Agreement (CA):
Cost Recovery:
A statutory provision that provides that any PRP who resolved its
liability to the United States in an administrative or judicially approved
settlement is not liable to other PRPs for claims of contribution
regarding matters addressed in the settlement.
Mechanism used by EPA to provide Fund money to states, political
subdivisions, or Indian tribes to conduct or support the conduct of
response activities. Subpart O of the NCP, 40 CFR Part 35, outlines
specific response actions that may be conducted using CA funds.
A process by which the U.S. government seeks to recover money
previously expended in performing any response action from parties
liable under CERCLA section 107(a). Recoverable response costs
include both direct and indirect costs.
Covenant Not to
Sue:
A contractual agreement, such as those authorized by CERCLA section
122(f) and embodied in a consent decree or administrative order on
consent, in which the Agency agrees not to sue settling PRPs for
matters addressed in the settlement. EPA's covenant not to sue is
given in exchange for the PRPs' agreement to perform the response
action or to pay for cleanup by the Agency, and does not take effect
until PRPs have completed all actions required by the consent decree
and administrative order on consent.
-------
Covenant Not to
Sue (cont'd):
Declaratory
Judgment:
Defendant:
Demand Letter:
De Micromis
Exemption:
De Minimis
Contributor:
Covenants not to sue are generally given in either consent decrees or
administrative orders. Under CERCLA, the use of covenants not to sue
is discretionary. In effect, the Agency is authorized to agree to such a
release of future liability only if the terms of the covenant include
"reopeners."
A binding adjudication of rights and status of litigants. Within the
context of CERCLA, the United States may file a claim seeking
declaratory judgment on liability for past and future response costs at
the site. If declaratory judgment on liability is granted, the United
States does not have to prove liability in any future action with the
defendant.
A person against whom a claim or charge is brought in a court of law.
A written demand for recovery of costs incurred under CERCLA. The
primary purposes of written demands are to formalize the demand for
payment of incurred costs plus future expenditures, inform potential
defendants of the dollar amount of those costs, and establish that
interest begins to accrue on expenditures. A demand letter may be
incorporated into the special notice letter.
In general, a party shall not be liable under CERCLA section 107 if it
can demonstrate that the total amount of the material containing
hazardous substances that it generated and arranged for disposal at,
or accepted for transport to, an NPL site was less than 110 gallons of
liquid materials or less than 200 pounds of solid materials, unless those
substances contributed significantly to the cost of the response action
or natural resource restoration with respect to the facility; or the party
has been uncooperative with EPA's response actions at the site; or the
party has been convicted of a criminal violation for the conduct to
which the exemption would apply.
PRPs who are deemed by the settlement agreement to be responsible
for only a minor portion of the response costs at a particular facility. A
determination of a PRP's responsibility is made based on the volume,
toxicity, or other hazardous effects in comparison with other wastes at
the facility. CERCLA section 122(g)(l)(A) expressly defines de minimis
contributor.
De Minimis
Landowner:
PRPs who are deemed by the settlement agreement to be past or
present owners of the real property at which the facility is located who
did not conduct or permit the generation, transportation, storage,
treatment or disposal of any hazardous substance at the facility, did
not contribute to the release or threat of release of a hazardous
substance at the facility through any act or omission, and had no
-------
De Minimis
Landowner
(cont'd):
De Minimis
Settlement:
actual or constructive knowledge that the property was used for the
generation, transportation, storage, treatment, or disposal of any
hazardous substance at the time of purchase. CERCLA section
122(g)(l)(B) expressly defines de minimis landowner.
An agreement, either administrative or judicial, authorized by CERCLA
section 122(g), between EPA and PRPs for a minor portion of response
costs.
De Novo:
Discovery:
Easement:
Generally, a new hearing or a hearing for the second time. At a de
novo hearing, the court hears the case as the court of original and not
appellate jurisdiction. Under CERCLA, for example, a judge may hear a
case de novo if the administrative record is found to be incomplete or
inaccurate. Such a hearing would allow judicial review that is not
limited to the administrative record. A potential result of a de novo
trial could be the court selecting the remedy.
A pre-trial procedure that enables parties to learn the relevant facts
about the case. The Federal Rules of Evidence provide for extremely
broad discovery. The basic tools of discovery are depositions,
interrogatories, and requests for production of documents. One of the
few limitations on the scope of discovery is that the material sought
must be relevant to the subject matter of the pending suit, or likely to
lead to the production of relevant material.
A right afforded to an entity to make limited use of another's real
property. An easement is one form of institutional control that may be
required at a Superfund site if all the hazardous substances cannot be
removed from the site. Easements may include limiting access or
control of surface activities.
Eminent Domain:
Enforcement
Actions:
Environmental
Justice (EJ):
The power to take private property for public use. Under the U.S.
Constitution, there must be just compensation paid to the owners of
this property. EPA exercises its power of eminent domain through the
process of condemnation.
EPA, state, or local legal actions to obtain compliance with
environmental laws, rules, regulations, or agreements, or to obtain
penalties or criminal sanctions for violations.
The fair treatment of people of all races, incomes, and cultures with
respect to the development, implementation, and enforcement of
environmental laws, regulations, and policies. Fair treatment implies
that no person or group should shoulder a disproportionate share of
negative environmental impacts resulting from the execution of
environmental programs.
-------
Explanation of
Significant
Differences
(BSD):
Extraordinary
Circumstances:
A document regarding a significant change to the record of decision
when new information is discovered about a site or difficulties are
encountered during the remedial design/remedial action phase of
cleanup. An BSD is appended to the administrative record to inform
the public of any significant changes that are being made to the
selected remedy.
Situations that justify the deletion of a standard reopener in a consent
decree. This release is granted infrequently and is given in response to
unusual conditions related to liability, viability, or physical
circumstances.
Federal Lien:
Federal Register:
Force Majeure:
A lien in favor of the United States authorized by CERCLA section
107(1) that may be imposed upon a PRP's property subject to a
response action. The lien arises when the PRP receives written notice
of its potential liability for response costs under CERCLA, or the Agency
actually incurs response costs at a particular site. The lien continues
until the PRP's liability is fully satisfied or the claim becomes
unenforceable by operation of the statue of limitations.
A federal government publication that includes proposed regulations,
responses to public comments received regarding proposed
regulations, and final regulations. The Federal Register is published
every working day by the Office of Federal Register, National Archives
and Records Administration, Washington, DC 20408. The Federal
Register publishes regulations and legal notices issued by federal
agencies. These include presidential proclamations and executive
orders, federal agency documents required by Congress to be
published, and other federal agency documents of public interest. The
Federal Register is available to the public through public libraries that
are federal depositories, law libraries, and large university libraries.
A clause common to construction contracts which protects the parties
in the event that a portion of the contract cannot be performed due to
causes that are outside of the parties' control (i.e., problems that could
not be avoided by the exercise of due care, such as an act of God).
These causes are known as force majeure events. Force majeure
provisions are included in administrative orders on consent and
consent decrees. These provisions stipulate that the PRPs shall notify
EPA of any event that occurs that may delay or prevent work and that
is due to force majeure. Two examples of force majeure may be raised
as defenses to liability. CERCLA section 107(b) releases from liability
any person who can establish by a preponderance of the evidence that
the release or threat of release of a hazardous substance was caused
solely by an act of God or an act of war (i.e., force majeure.}
-------
Full Release:
An agreement by EPA to release a PRP from any further liability for
response costs. Under CERCLA section 122(j)(2), natural resource
trustees may grant full releases of liability for damages to natural
resources.
Fund (Hazardous A fund set up under CERCLA to help pay for cleanup of hazardous
Substance waste sites and for legal action to force cleanup actions on those
Superfund or responsible for the sites. The fund is financed primarily with a tax on
Superfund Trust crude oil and specified commercially used chemicals.
Fund):
General Notice
Letter (GNL):
Generator:
A notice to inform PRPs of their potential liability for past and future
response costs and the possible future use of CERCLA section 122(e)
special notice procedures and the subsequent moratorium and formal
negotiation period.
Any person who by contract, agreement, or otherwise arranged for
disposal or treatment, or arranged with a transporter for disposal or
treatment of hazardous substances owned or possessed by such a
person, by any other party or entity, at any facility or incineration
vessel owned or operated by another party or entity and containing
such hazardous substances.
Good Faith Offer
(GFO):
Hazard Ranking
System (HRS):
Indian Tribe:
A written proposal submitted by a PRP to the EPA to perform or pay for
a response action. PRPs are given 60 days from the special notice to
provide EPA a written GFO. The GFO must be specific, consistent with
the ROD or proposed plan, and indicate the PRPs' technical, financial,
and management ability to implement the remedy.
The principal screening tool used by EPA to evaluate risks to public
health and the environment associated with abandoned or uncontrolled
hazardous waste sites. The HRS calculates a score based on the
potential for hazardous substances spreading from the site through the
air, surface water, or ground water, and on other factors such as
nearby population. This score is the primary factor in deciding if the
site should be on the NPL and, if so, what ranking it should have
compared to other sites on the list. A site must score 28.5 or higher to
be placed on the NPL.
As defined by CERCLA section 101(36), any Indian tribe, band, nation,
or other organized group or community, including any Alaska Native
village, but not including any Alaska Native regional or village
corporation, which is recognized as eligible for the special programs
and services provided by the United States to Indians because of their
status as Indians.
-------
Information
Repository:
Where the administrative record, current information, technical
reports, and reference materials regarding a Superfund site are stored.
EPA or the state establishes the repository in the community as soon
as a site is discovered. It provides the public with easily accessible
information. Repositories are established for all sites where cleanup
activities are expected to last for more than 45 days. Typical
community repository locations include public libraries and municipal
offices.
Information
Request Letter:
Innocent
Landowner:
Joint and Several
Liability:
Judicial Review:
Formal written requests for information, authorized by CERCLA section
104(e)(2)(A) through (C), issued during an administrative
investigation. EPA is authorized to request information from any
person who has or may have information relevant to any of the
following:
• the kind and quantity of materials that have been or are being
generated, treated, disposed of, stored at, or transported to a
vessel or facility;
• the nature or extent of a release or threatened release of a
hazardous substance, pollutant, or contaminant at or from a
vessel or facility; and
• the ability of a person to pay for or perform a cleanup.
Failure to respond to or incomplete response to an informational
request is subject to statutory penalties.
A person who purchased or acquired real property without actual or
constructive knowledge that the property was used for the generation,
transportation, storage, treatment, or disposal of any hazardous
substances. PRPs may assert this claim as part of their defense, but
only the court may make this determination based on CERCLA sections
107(b) and 101(35).
A legal doctrine defining the scope of a defendant's liability. When
more than one PRP is involved at a site and the harm is indivisible, the
court may impose joint and several liability upon all parties involved at
the site. In this instance, each PRP involved at the site may be held
individually liable for the cost of the entire response action.
The court's review of a decision rendered by a federal agency or
department or a court's review of an appeal challenging either a finding
of fact or finding of law. Under CERCLA, for example, the court
provides judicial review prior to entry of the consent decree. In
addition, the court would provide judicial review of an EPA decision if a
-------
Judicial Review
(cont'd):
PRP submitted a "petition to review" to a federal court of appeals. The
jurisdiction of the court and the scope of its review are defined by
CERCLA section 113(h) and the Judicial Review Act, 28 U.S.C. §§2341-
2351.
Lead Agency:
Mixed Funding:
Mixed Work:
Moratorium:
The agency that primarily plans and implements cleanup actions. This
could be EPA, state, or political subdivisions, other federal agencies, or
Indian tribes. Other agencies may be extensively involved in the
process, but the lead agency directs and facilitates activities related to
a site, often including enforcement actions.
Settlements whereby EPA settles with fewer than all PRPs for less than
100 percent of the response costs. The settlement must provide a
substantial portion, greater that 50 percent of the total response costs,
and there must be viable non-settlers from which remaining response
costs may be pursued. The three types of mixed funding settlement
are preauthorization, cash-out, and mixed work.
A type of mixed funding settlement whereby EPA and the PRPs agree to
conduct discrete portions of the response action. Often EPA's portion
of the work is paid for or performed by other PRPs as a result of
subsequent settlements or unilateral administrative orders.
The period of time after special notice letters are issued during which
the Fund will not be used to begin work at the site on the RI/FS or RA.
EPA also will not seek to compel PRP action at the site during the
moratorium.
Municipal Solid
Waste:
Waste material generated by a household; and waste material
generated by a commercial, industrial, or institutional entity, to the
extent that the waste material:
• is essentially the same as waste normally generated by a
household;
• is collected and disposed of with other MSW as part of normal
MSW collection; and
• contains a relative quantity of hazardous substances no greater
than the relative quantity of hazardous substances contained in
waste generated by a typical single family household.
-------
National Oil and The NCR is the major framework regulation for the federal hazardous
Hazardous substances response program. The NCR sets forth procedures and
Substances standards for how EPA, other federal agencies, states, and private
Pollution parties respond under CERCLA to releases or threats of releases of
Contingency Plan hazardous substances, and under Clean Water Act section 311, as
(NCP): amended by the Oil Pollution Act of 1990, to discharges of oil.
Natural
Resources:
Land, fish, wildlife, air, water, ground water, drinking water supplies,
and other such resources belonging to, managed by, or controlled by
the United States, state or local government, any foreign government,
any Indian tribe, or any member of an Indian tribe.
Natural Resource
Damages:
Damages for injury or loss of natural resources as set forth in CERCLA
sections 107(1) and lll(b) and NCP section 300.615.
Non-Binding
Preliminary
Allocation of
Responsibility
(NBAR):
An allocation of the total cost of response among PRPs at a facility.
CERCLA section 122(e)(3) allows EPA to provide NBARs to PRPs to
facilitate settlement. An NBAR is not binding on the United States or
the PRPs and cannot be admitted as evidence in court.
Orphan Share:
A portion of cleanup costs that cannot be assessed to a PRP as a result
of either the PRP's insolvency or EPA's inability to identify PRP(s).
Owner or
Operator:
Any person owning or operating a vessel or facility, or in the case of a
hazardous substance being accepted for transportation, the common or
contract carrier. It does not include a unit of state or local government
that acquired ownership or control involuntarily through bankruptcy,
tax delinquency, or abandonment.
Performance
Bond:
A guarantee given by a contractor that a work assignment will be
completed according to its terms and within the agreed time.
Performance
Standards:
Provisions in consent decrees and administrative orders specifying
specific levels of performance that site activities must achieve; often
incorporated by reference into the record decision. The inclusion of
such performance standards enables the Agency to assure measurable
levels of cleanup that provide the protection desired.
Person:
An individual, firm, corporation, association, partnership, joint venture,
commercial entity, U.S. government, state, municipality, or any
interstate body.
Plaintiff:
A party who brings a legal action; the party who complains or sues in a
civil action and is so named on the record.
-------
Potentially
Responsible
Party (PRP):
Preauthorization:
Premium:
Record of
Decision (ROD):
Any individual or entity including owners, operators, transporters, or
generators who may be liable under CERCLA section 107(a).
A type of mixed funding settlement whereby EPA preauthorizes a claim
against the Fund by the PRPs for a portion of costs of conducting a
response action. Once the preauthorization agreement is finalized, the
PRPs conduct the response action, as outlined in settlement
agreement, petition non-settling PRPs for reimbursement, and, if
necessary, seek reimbursement from the Fund for the preauthorized
amount not received from non-settling PRPs.
A sum paid or agreed to be paid by a PRP to cover risks associated with
settlement. This sum represents an amount in addition to the cost of
the response action. For example, a premium may be part of an early
de minimis settlement due to potential inaccuracy of total response
cost estimates or remedy failure.
The official Agency document that explains which remedial cleanup
alternatives have been considered, the selected remedy, technical
background relative to the decision, and how the decision complies
with the law.
Recalcitrant:
Recusal:
Remand:
A PRP that is persistently uninterested in or refuses to reach settlement
or that fails to comply with a settlement or order.
The voluntary or involuntary removal of a government official from any
involvement in a specific matter. Recusal is used to preserve the
ethical standards of public service. Recusal generally occurs when
there is an appearance of a conflict between governmental
responsibilities and private interest. Once a person is removed through
recusal, she cannot participate in any activity relating to the matter;
specifically, she cannot see any correspondence or participate in any
meetings or negotiations related to the issue.
A legal term used when a court sends a case back to either a lower
court or an administrative agency for further action. For example,
under CERCLA, if an administrative record is found to be incomplete or
inaccurate, one option of the reviewing court is to remand the case to
EPA with instructions to compile an accurate and complete
administrative record.
-------
Remedial Action:
Removal:
Reopeners:
Remedial
Investigation/
Feasibility Study
(RI/FS):
A remedial action is one that is "consistent with permanent remedy
taken instead of or in addition to removal actions in the event of a
release or threatened release of a hazardous substance into the
environment." Generally, response actions that take longer than a
non-time-critical removal and are more complex than removals.
A removal is "the clean up or removal of released hazardous
substances from the environment, such actions as may be necessary
taken in the event of the threat of release...[and] such actions as may
be necessary to monitor, assess, and evaluate the release or threat of
release of hazardous substances..." Such evaluations include RI/FS.
Removals are classified according to urgency as "emergency," for those
requiring immediate response; "time-critical," for those that take no
more than six months; and "non-time-critical" for removals that need
up to a year or more.
Contractual provisions that preserve the Agency's right to compel the
PRPs to undertake additional response actions or to pay costs for
Agency response actions in addition to those agreed to in the
settlement. Reopeners to liability are triggered when previously
unknown conditions at the site are discovered, or information
previously unknown to EPA is received, that indicates the remedial
action is not sufficiently protective. Reopener provisions restrict the
covenant not to sue by defining the conditions under which the
settlement may be re-examined.
Activities conducted at an NPL site by EPA, or a PRP acting under an
administrative order on consent (AOC) or (rarely) a unilateral
administrative order (UAO), to assess site conditions and evaluate
alternatives to the extent necessary to select a remedy, described in
the record of decision (ROD), that will clean up the site in accordance
with CERCLA section 121.
Remedial Response actions performed at an NPL site by EPA or a PRP under a
Design/Remedial consent decree (CD) approved and entered by a federal court. RD is
Action (RD/RA): the engineered design of the remedy selected by the RI/FS; RA is the
construction and continuing operation and maintenance of the remedy.
Settlement: Resolution of a claim. Settlement occurs when a federal or state
agency has a written agreement with PRPs regarding payment for and
conduct of specified response actions. Settlements may be achieved
administratively through an administrative order on consent or
judicially through a consent decree.
-------
Special Account:
A sub-account of the Fund in which cash-out settlement funds may be
deposited to segregate the funds and ensure that they are readily
accessible for work at the site covered by the settlement.
Special Master:
A court-appointed individual who oversees the progress of a complex
case before it goes to trial. The scope of the special master's authority
is set forth in an order of reference. Special masters are appointed
only under exceptional conditions. For example, special masters may
be appointed in cases requiring the interpretation of complicated
technical data or voluminous information.
Special Notice
Letter (SNL):
A written notice to a PRP providing information on potential liability,
conditions of the negotiation moratorium, future response actions, and
demand for past costs. The SNL is authorized under CERCLA section
122(e)(l) and triggers the start of the negotiation moratorium.
Statute of
Limitations
(SOL):
The statutorily defined period of time within which the United States,
on behalf of EPA, must file a claim for cost recovery. If the United
States does not file a case within the SOL, it may not be able to
recover its costs from the PRPs.
Stipulated
Penalties:
Fixed sums of money that a defendant agrees to pay for violating the
terms of a settlement. Procedures for invoking and appealing
stipulated penalties and penalty amounts are agreed to in the
administrative order on consent or the consent decrees.
Strict Liability:
Legal responsibility for damages without regard to fault or diligence.
The strict liability concept in CERCLA means that the federal
government can hold PRPs liable without regard to a PRP's fault,
diligence, negligence, or motive.
Transporter:
A person who "accepts or accepted any hazardous substances for
transport for disposal" to any site selected by such person, "from which
there is a release or threatened release which causes the incurrence of
response costs, of a hazardous substance..."
Waste LAN:
The acronym for Waste Local Area Network. For historical reasons,
EPA's regions use it when referring to CERCLIS.
-------
PRP Search Manual
September 2009
Chapter 1 References
Name
Section
Location
Comprehensive Environmental 1.1
Response, Compensation, and
Liability Act of 1980, as
amended by the Superfund
Amendments and
Reauthorization Act of 1986
1.1.1
1.1.1
1.1.3
National Oil and Hazardous
Substances Pollution
Contingency Plan
Oil Pollution Act of 1990
Interim Guidance on the
Ability to Pay and De minimis
Revisions to CERCLA Section
122(g) by the Small Business
Liability Relief and Brownfields
Revitalization Act (May 17,
2004
Clean Air Act 1.2.2
Clean Water Act 1.2.2
Toxic Substances Control Act 1.2.2
Resource Conservation and 1.2.2
Recovery Act
CERCLA Hazardous 1.2.2
Substances
Comptroller Policy 1.2.3
Announcement 87-17,
Interest Rates for Debts
Recoverable Under the
Superfund Amendments and
Reauthorization Act of 1986
(September 30, 1986)
42 U.S.C. §9601 etseq.
http://www.epa.gov/emergencies/lawsreg
s.htm#laws
40 C.F.R. Part 300
http://www.epa.gov/emergencies/lawsreg
s.htm#laws
33 U.S.C. §2701 etseq.
http://www.epa.gov/emergencies/lawsreg
s.htm#laws
http://www.epa.gov/compliance/resources
/policies/cleanup/superfund/atp-demin-
122g-04.pdf
42 U.S.C. §7401 etseq.
http://www.epa.gov/emergencies/lawsreg
s.htm#laws
33 U.S.C. § 1251 etseq.
http://www.epa.gov/emergencies/lawsreg
s.htm#laws
15 U.S.C. §2601 etseq.
http://www.epa.gov/agriculture/lsca.html
42 U.S.C. §6901 etseq.
http://www.epa.gov/epawaste/index.htm
40 C.F.R. Part 302
http://www.epa.gov/emergencies/lawsreg
s.htm#laws
http://www.epa.gov/ocfo/finstatement/
superfund/int_rate.htm
Chapter 1: Overview of CERCLA and PRP Searches
-------
PRP Search Manual
September 2009
Chapter 1 References
Name
Section
Location
Small Business Liability Relief 1.2.5
and Brownfields Revitalization
Act of 2002
Standards and Practices for All 1.2.5
Appropriate Inquiries, 40
C.F.R. Part 312 (November 1,
2005)
Fact Sheet on All Appropriate 1.2.5
Inquiries Final Rule (October
2005)
Internal Revenue Code of 1.2.6
1986
Contiguous Property Owner 1.2.6
Guidance Reference Sheet
(February 5, 2004)
Superfund Recycling Equity 1.2.6
Act (CERCLA Section 127)
Standards for the 1.2.6
Management of Used Oil
Federal Insecticide, Fungicide, 1.2.6
and Rodenticide Act
Revised Settlement Policy and 1.2.7
Contribution Waiver Language
Regarding Exempt "De
micromis" and Non-Exempt
"De micromis" Parties
(November 6, 2002)
Interim Policy on CERCLA 1.2.7
Settlements Involving
Municipalities or Municipal
Wastes (December 6, 1989)
Policy for Municipality and 1.2.7
Municipal Solid Waste CERCLA
Settlements at NPL Co-
Disposal Sites (February 5,
1998)
Public Law 107-118 (H.R. 2869)
http://www.epa.gov/brownfields/pdf/
hr2869.pdf
http://ecfr.gpoaccess.gov/cgiA/text/text-
idx?c=ecfr&tpl=/ecfrbrowse/Title40/40cfr3
12_main_02.tpl
http://www.epa.gov/brownfields/aai/aaLfi
nal_factsheet.pdf
http://www.irs.gov/taxpros/article/0,,id=9
8137,00.html
http://www.epa.gov/compliance/resources
/policies/cleanup/superfund/contig-prop-
faq.pdf
42 U.S.C. §9627
http://www.epa.gov/emergencies/lawsreg
s.htm#laws
40 C.F.R. Part 279
http://www.access.gpo.gov/nara/cfr/waisi
dx_08/40cf r279_08.html
7 U.S.C. § 136etseq.
http://www.epa.gov/agriculture/lfra.html
http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
wv-exmpt-dmicro-mem.pdf
TBD
http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
munic-solwst-mem.pdf
Chapter 1: Overview of CERCLA and PRP Searches
-------
PRP Search Manual
September 2009
Chapter 1 References
Name
Section
Location
Interim Guidance on the
Municipal Solid Waste
Exemption Under CERCLA
Section 107(p) (August 20,
2003)
Policy Toward Owners of
Property Containing
Contaminated Aquifers
(May 24, 1995)
Bona Fide Prospective
Purchasers and the New
Amendments
(May 31, 2002)
Windfall Lien Administrative
Procedures (January 8, 2008)
Interim Enforcement
Discretion Policy Concerning
"Windfall Liens" Under Section
107(r) of CERCLA (July 16,
2003)
Policy Towards Owners of
Residential Property at
Superfund Sites
(JulyS, 1991)
Interim Guiding Principles for
Good Samaritan Projects at
Orphan Mine Sites and
Transmittal of CERCLA
Administrative Tools for Good
Samaritans (June 6, 2007)
Sample General Notice Letter
(April 30, 2008)
1.2.7
Revised Final Guidance on
Disseminating EPA's SBREFA
Information Sheet to
Businesses at the Time of
Enforcement Activity
(August 31, 1999)
Small Business Information
Sheet
(October 2007)
1.2.7
1.2.7
1.2.7
1.2.7
1.2.7
1.2.7
1.3.1
1.3.1
1.3.1
http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
interim-msw-exempt.pdf
http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
contamin-aqui-rpt.pdf
http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
bonf-pp-cercla-mem.pdf
http://www.epa.gov/compliance/resources
/policies/cleanup/superfund/wf-admin-
mem.pdf
http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
interim-windfall-lien.pdf
http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
policy-owner-rpt.pdf
http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
cercla-goodsam-principles-mem.pdf
http://www.epa.gov/compliance/resources
/policies/cleanup/superfund/gnl-mod-
08.pdf
http://www.epa.gov/compliance/
resources/policies/civil/sbrefa
http://www.epa.gov/compliance/resources
/publications/incentives/smallbusiness/sm
allbusresources.pdf
Chapter 1: Overview of CERCLA and PRP Searches
-------
PRP Search Manual
September 2009
Chapter 1 References
Name Section Location
Orphan Share Policy 1.3.2 http://www.epa.gov/compliance/
(June 3, 1996) resources/policies/cleanup/superfund/
orphan-share-rpt.pdf
Super-fund Removal 1.3.2 OSWER Directive 9360.3-06; NTIS Product
Procedures Code PB92963409
Removal Enforcement http://www.ntis/search/index.aspx
Guidance for On-Scene
Coordinators (April 1992)
Addendum to the Interim 1.3.3 http://www.epa.gov/compliance/
CERCLA Settlement Policy resources/policies/cleanup/superfund/
Issued on December 5, 1984 adden-settle-mem.pdf
(September 30, 1997)
Chapter 1: Overview of CERCLA and PRP Searches
-------
PRP Search Manual
September 2009
Chapter 2 References
Name
Section
Location
Entry and Continued Access 2.0
Under CERCLA (June 5, 1987)
Applicable or Relevant and 2.0
Appropriate Requirements
(ARARs)
Superfund Program 2.0
Implementation Manual (SPIM)
Fiscal Year 2009/2010
Performance Work Statement for 2.1.1
Enforcement Support Services
Environmental Programs 2.1.1
Assistance Act (June 12, 1984)
Title V of the Older Americans Act 2.1.1
(1965)
Revised Final Guidance on 2.1.2
Disseminating EPA's SBREFA
Information Sheet to Businesses
at the Time of Enforcement
Activity (August 31, 1999)
Small Business Information Sheet 2.1.2
(October 2007)
Confidentiality of Business 2.1.2
Information
Transmittal of Sample Documents 2.1.2
for More Effective Communication
in CERCLA Section 104(e)(2)
Information Requests (June 30,
1995)
Documentation of Reason(s) for 2.1.2
Not Issuing CERCLA §106 UAOs to
All Identified PRPs
(August 2, 1996)
Checklist of PRP Search Tasks 2.2
http://www.epa.gov/compliance/resou
rces/policies/cleanup/superfund/cont-
access-mem.pdf
http://www.epa.goV/superfund/poliy/r
emedy/sfremedy/arars.htm
http://www.epa.gov/superfund/action/
process/spim09.htm
Appendix A
http://www.epa.gov/epahrist/see/
brochure/law.htm
42 U.S.C. §3056etseq.
http://www.doleta.gov/seniors/
other_docs/owp-106-501.pdf
http://www.epa.gov/compliance/
resources/policies/civil/sbrefa
EPA Publication 300-F-07-003
http://www.epa.gov/compliance/
resources/publications/incentives/
smallbusiness/smallbusresources.pdf
40 C.F.R. Part 2, Subpart B
http://ecfr.gpoaccess.gov
http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
sampledoc-cercla-mem.pdf
http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
reason-cer!06-rpt. pdf
Appendix B
Chapter 2: PRP Search Planning Overview
-------
PRP Search Manual
September 2009
Chapter 2 References
Name
Section
Location
Checklist for Removal/Pre- 2.2.1
remedial Sites
Performance Work Statement for 2.2.1
Enforcement Support Services
Revised Policy on Discretionary 2.3
Information Release Under
CERCLA (March 31, 1993)
Privacy Policy (September 27, 2.3
2007)
Confidentiality of Business 2.3
Information
Freedom of Information Act 2.3
(Reference Guide)
Privacy Act 2.3
Quick Reference Guide for Using 2.4.2
CERCLIS/WasteLAN
Appendix C
Appendix A
http://www.epa.gov/compliance/resou
rces/policies/cleanup/superfund/rev-
discre-info-rel.pdf
http://www.epa.gov/irmpoli8/ciopolicy
72151.0.pdf
40 C.F.R. Part 2, Subpart B
http://ecfr.gpoaccess.gov
5 U.S.C. § 552 etseq.
http://www.epa.gov/foia/guide.html
5 U.S.C. § 552 etseq.
http://www4.law.cornell.edU/5/552a.ht
ml
Appendix D
Chapter 2: PRP Search Planning Overview
-------
PRP Search Manual
September 2009
Chapter 3 References
Name
Section
Location
Checklist of PRP Search Tasks
PRP Search Enhancement Team
Members/Contacts
Information Requests - 104(e)
Question Categories
Potentially Responsible Party
Internet Information Sources
(PRPIIS)
Superfund Enforcement
Directory
3.0 Appendix B
3.2.1 Appendix E
3.3 http://www.epa.gov/compliance/resources7p
ublications/cleanup/superfund/104e/index.ht
ml
3.3.1 Appendix F
3.3.1 http://www.epa.gov/compliance/cleanup/
superfund/sfed/index.html
Transmittal of Sample 3.3.1
Documents for More Effective
Communication in CERCLA
Section 104(e)(2) Information
Requests (June 30, 1995)
False Statements Act 3.3.1
Federal Debt Collection 3.3.1
Procedures Act
Releasing Information to 3.3.1
Potentially Responsible Parties
at CERCLA Sites (March 1,
1990)
EPA Regulations Governing 3.3.3
Business Confidentiality Claims
Federal Rules of 3.4.1
Evidence 801-817
Federal Perjury Statute 3.4.2
Performance Work Statement 3.5.1
for Enforcement Support
Services
http://www.epa.gOv/compliance/resources/p
olicies/cleanup/superfund/sampledoc-cercla-
mem.pdf
http://www4.law.cornell.edu/uscode/18/100
l.html
http://www.uscode.house.gov/download/pls/
28C176.txt
http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
release-prp-rpt.pdf
40 C.F.R. § 2.201-2.215
http://www.access.gpo.gov/nara/cfr/
wa isidx_0 l/40cf r2_01. html
http://www.law.cornell.edU/rules/fre/rules.h
tm
18 U.S.C. § 1621
http://www.law.cornell.edu/uscode/html/usc
odel8/usc_sec_18_00001621—-OOO-.html
Appendix A
Chapter 3: Baseline PRP Search
-------
PRP Search Manual
September 2009
Chapter 3 References
Name Section Location
Final Guidance on Preparing 3.8 http://www.epa.gov/compliance/
Waste-In Lists and Volumetric resources/policies/cleanup/superfund/guide-
Rankings for Release to volumet-rpt.pdf
Potentially Responsible Parties
(PRPs) Under CERCLA
(February 22, 1991)
Streamlined Approach for 3.8 http://www.epa.gov/compliance/
Settlements With De Minimis resources/policies/cleanup/superfund/app-
Waste Contributors Under deminimis-rpt.pdf
CERCLA Section 122(g)(l)(A)
(July 30, 1993)
Chapter 3: Baseline PRP Search
-------
PRP Search Manual
September 2009
Chapter 4 References
Name
Section
Location
Information Requests - 104(e) 4.1
Question Categories
Model Administrative Order for 4.2
CERCLA Information Requests
(September 30, 1994)
Civil Monetary Penalty Inflation Rule 4.2
Final Model Litigation Report and 4.2
Complaint for CERCLA Section 104(e)
Initiative (January 1990)
Recommendations Concerning the Use 4.3
and Issuance of Administrative
Subpoenas under CERCLA Section 122
(August 30, 1991)
Guidance on Use and Enforcement of 4.3
CERCLA Information Requests and
Administrative Subpoenas
(August 25, 1988)
Federal Rules of Civil Procedure, Rule 4.4
27
General Policy on Superfund Ability to 4.5.1
Pay Determinations
(September 30, 1997)
Model Notice Approving Reduction in 4.5.1
Settlement Amount Based on Inability
to Pay (April 30, 2008)
Model Notice Denying Reduction in 4.5.1
Settlement Amount Based on Inability
to Pay (April 30, 2008)
Interim Guidance on the Ability to Pay 4.5.1
and De Minimis Revisions to CERCLA §
122(g) by the Small Business Liability
Relief and Brownfields Revitalization
Act (May 17, 2004)
http://www.epa.gov/compliance/reso
urces/publications/cleanup/superfund/
104e/index.html
http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
modao-cerinf-mem. pdf
40 C.F.R. Part 19
http://ecfr.gpoaccess.gov
http://intranet.epa.gov/oeca/osre/
docs.html
http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
subpoena-cercla-mem.pdf
http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
cerc-infreq-mem.pdf
28 U.S.C. App.
http://www.uscourts.gov/rules/CV200
8.pdf
http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
genpol-atp-rpt.pdf
http://www.epa.gov/compliance/reso
urces/policies/cleanup/superfund/app-
B-arc.pdf
http://www.epa.gov/compliance/reso
urces/policies/cleanup/superfund/app-
D-arc.pdf
http://www.epa.gov/compliance/reso
urces/policies/cleanup/superfund/atp-
demin-122g-04.pdf
Chapter 4: Follow-up PRP Search
-------
PRP Search Manual
September 2009
Chapter 4 References
Name
Section
Location
Enforcement Economic Models
Individual Ability To Pay Claim
(INDIPAY) Financial Data Request
Form
Ability To Pay Individual Request for
Information
Individual Ability To Pay Claim
Financial Data Request Form
Financial Disclosure Statement To Be
Completed by Individual Defendant
EDGAR
Potentially Responsible Party Internet
Information Sources (PRPIIS)
Interim Enforcement Discretion Policy
Concerning "Windfall Liens" Under
Section 107(r) of CERCLA
(July 16, 2003)
Interim Guidance on Orphan Share
Compensation for Settlors of Remedial
Design/Remedial Action and Non-
Time-Critical Removals (June 4, 1996)
Addendum to the Interim CERCLA
Settlement Policy Issued on
December 5, 1984
(September 30, 1997)
4.5.2 http://www.epa.gov/compliance/civil/
econmodels; http://www.indecon.com
/iec_web/econmodels/practice/models
4.5.2 Appendix G
4.5.2 Appendix H
4.5.2 Appendix I
4.5.2 Appendix J
4.5.2 http://www.sec.gov/edgar.shtml
4.5.2 Appendix F
4.5.3 http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
interim-windfall-lien.pdf
4.6 http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
orphan-share-rpt.pdf
4.6.1 http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/
adden-settle-mem.pdf
Chapter 4: Follow-up PRP Search
-------
Ef^™"1'' Publication # EPA 330-K-09-001A
(November 2011)
Addendum to the
EPA PRP Search Manual
November 2011
The purpose of this addendum is to inform users of the EPA PRP Search Manual (September
2009) of three recent guidance documents that address Superfund potentially responsible party
(PRP) search issues. These documents were developed by EPA's Office of Site Remediation
Enforcement in response to recommendations made by EPA's Office of Inspector General in the
report EPA Needs to Improve Internal Controls to Increase Cost Recovery (October 7, 2009),
which is available at http://www.epa.gov/oig/reports/2009/20090427-09-P-0144.pdf. These
documents supplement, but do not supersede, the existing contents of the PRP Search Manual.
1. "EPA's Continued Efforts to Enhance CERCLA Cost Recovery" (July 2, 2010).
This guidance document addresses a number of CERCLA cost recovery issues, one of which
relates to documentation of the results of PRP searches. Section VI. ("Appropriately
Document All Costs") discusses close-out memoranda that memorialize decisions not to
pursue cost recovery for removal or remedial costs under CERCLA. The guidance notes
that, in addition to the decision document itself, "the Region should also place in the
permanent site file all supporting documentation, such as an index of all PRP search
documents . . . used in making the decision not to pursue further cost recovery" and the index
should include "the physical or electronic location of the supporting documents."
2. "PRP Search Documentation Summary Requirements for Decision Documents to Not
Pursue Cost Recovery Where Unaddressed Past Costs Are Greater Than $200,000"
(March 8, 2011).
o Attachment A: "PRP Search Reference Summary"
o Attachment B: "PRP Search Activities Verification Form"
This guidance document "establishes standard and mandatory PRP search documentation
requirements to be included in Decision Documents . . . memorializing the Agency's
determination to not pursue cost recovery, where total unaddressed past costs are greater than
$200,000." The guidance identifies minimum PRP search documentation requirements and
provides as attachments: (a) the "PRP Search Reference Summary," which can be used to
document PRP search tasks that were completed and where the results are located; and (b)
the "PRP Search Activities Verification Form," which can be used to attest that all
reasonable PRP search tasks have been completed to support the decision not to pursue cost
recovery. The guidance also provides that the regions may use alternative methods of
documenting a PRP search and its results, provided that they meet key requirements
identified in the guidance.
-------
3. "Transmittal of preliminary Potentially Responsible Party Search Completion'
Measure Definition for Incorporation into the Superfund Program Implementation
Manual for FY2012" (June 23, 2011).
o Attachment: "Preliminary Potentially Responsible Party Search Completion
Definition and Documentation/Reporting Requirements"
This memorandum transmitted the final text of a new "Preliminary PRP Search Completion"
Superfund enforcement program measure to be included in the Superfund Program
Implementation Manual. The measure identifies preliminary PRP search activities "taken to
make an initial identification of PRPs at a site in order to determine if there are PRP(s) that
are able to perform or finance all or a portion of the initial non-emergency CERCLA removal
or remedial response action at a site." A preliminary PRP search is complete when the
following tasks, as described in the measure and where applicable, have been completed and
properly documented: (a) site location and property description; (b) current and past site
ownership identification/notification; (c) site operation identification/notification; (d) site
owner/operator liability/financial viability determination; and (e) arranger/transporter
identification/notification. Alternatively, a preliminary PRP search is deemed complete if the
region has "entered into a settlement with or issued orders to compel the identified PRPs to
perform the initial non-emergency response action at the site" after completing some of the
preliminary PRP search tasks. The measure also defines CERCLIS reporting requirements
for preliminary PRP search completions and requirements for documenting the results of
preliminary PRP searches in the site file, which can be satisfied using the "PRP Search
Reference Summary" format described in the March 8, 2011, "PRP Search Documentation
Summary Requirements" guidance document (which is discussed above).
-2-
-------
'$ UNtTED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
II If ~ 9 iflin OFFICE OF
OUL t £UIU ENFORCEMEHT AND
COMPLIANCE ASSURANCE
MEMORANDUM
SUBJECT: EPA's Continued Efforts to Enhance CERCLA Cost Recovery
FROM: Elliott J. Gilberg, Director Mjjjj^
Office of Site Remediation Enforcement
TO: Regional Counsel, Regions I-X
Superfund Division Directors, Regions I-X
Over twenty years ago EPA issued the Superfund Cost Recovery Strategy ("Strategy"),'
which noted that "cost recovery is one of the highest priorities of the Superfund program." This
is as true today as it was in 1988. Many of the practices set forth in that Strategy and other
relevant guidance are still in use today, and OSRE encourages the continued and enhanced use of
these practices. In addition, we encourage the Regions to look for new ways to increase the
effectiveness of EPA's cost recovery efforts. The purpose of this memorandum is to highlight
some important cost recovery practices, and to encourage Regions to reevaluate their
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA,
commonly referred to as "Superfund") cost recovery programs with an eye toward looking for
areas of potential improvement.
Currently, OSRE is taking steps to reinforce and evaluate areas of the cost recovery
program. We have begun to evaluate Regional cost recovery documentation practices when EPA
decides not to pursue cost recovery and we are examining the types of write-off or close-out
documents (e.g., "Ten Point" summaries) prepared by Regions.3 Our evaluation focuses on the
Regions* justifications for preparing write-off or close-out documents and how the Regions
memorialize their write-off or close-out decisions in these documents. OSRE is also determining
how and where the Regions maintain their decision documents and other related correspondence.
Additionally, OSRE is surveying the Regions for enhanced cost recovery practices that can be
1 Transmittal of the Supcrfiind Cast Recovery Strategy. J Winston Porter, July 29,I 988, OSWER Dir, No, 9832,13,
2 This memorandum is intended solely For the guidance of employees of EPA. It is not a regulation and does not impose legal obligations.
EPA will apply the guidance only to the extent appropriate based on the facts. Nothing in this memorandum supersedes existing guidance
and, as always, the Regions have the discretion to use an approach that has the greatest likelihood of success and will maximize the amount
of recovery.
1 See EPA Needs to Improve internal Controls to Increase Cost Recovery (October 7.20091 (This OIG Report evaluated cost recovery
activities ttt non-NPL removal sites to determine the Agency's internal controls to monitor cost recovery, document PRP searches and
removal milestones, and ensure accurate cost recovery data).
Internet Address (URL) • http://www.epa.gov
H*cycl«l/H*cycIiBle . PriMea wttfi VegaiaWe Oil Based Inks MI fiecyirfe*! P^jer Minimum 29% Pwfcontmmer)
-------
shared with other Regions. OSRE will also work with the Regions on developing sample or
model documents to aid EPA's cost recovery, focusing on areas such as potentially responsible
party (PRP) search documentation, field letters for removal actions, and compromises in
administrative settlements.
I. Appropriate and Aggressive Use of Demand Letters
We encourage the aggressive use of demand letters in all appropriate cases. Often an
initial demand for remedial costs is incorporated in a Special Notice Letter notifying the recipient
of its potential liability as well as providing the recipient with the government's incurred costs to
date and anticipated future costs. As noted in guidance, however, EPA may issue a written
demand letter anytime after costs (removal or remedial) have been incurred under CERCLA.4 In
some instances, it might be appropriate for EPA to issue a "stand-alone" written demand letter.
The most common example is issuing a written demand letter at the conclusion of a removal
action. Not only does a written demand letter create a formal mechanism for the Agency to
recover its costs, but it also initiates the accrual of interest on expended costs.5
In addition, it is not necessary for a Region to anticipate referring a matter to the
Department of Justice (DOJ) in order to issue a written demand letter. The Strategy states, "a
demand letter should be issued . . . where response costs have been incurred under CERCLA
regardless of whether a decision has been made to initiate a judicial proceeding for cost
recovery"6 (emphasis added). It is not a prerequisite that the Region must contemplate referring
a matter to DOJ if payment is not received in order to issue a demand letter.7 Issuing a written
demand letter does not negatively impact the cost recovery program if, at some later date, the
Region decides that it would not be appropriate to refer the matter to DOJ or that it is not an
appropriate use of the Agency's limited resources to negotiate a settlement.8 Nevertheless, if
EPA elects to issue a written demand letter, it must have a reasonable basis for believing the
recipient is a PRP under section 107 and is therefore responsible for EPA's costs under the
statute.
II. Continued Use of CERCLA Section 107(1) Liens
We recommend that Regions routinely use section 107(1) liens to preserve cost recovery
opportunities. Under section 107(1) of CERCLA, a lien exists by operation of law in favor of the
United States at any site at which EPA has spent Superfund monies. The Superfund lien arises
on property subject to or affected by Superfund removal or remedial response actions when EPA
incurs costs for such action and provides written notice of potential liability to the owner of the
property. To perfect the lien, the Region should send the property owner a Notice of Intent to
4 See Written Demand for Recovery of Costs Incurred Under the Comprehensive Environmental Response. Compensation, and Liability Act
(CERCLA), Bruce Diamond, March 21, 1991.
5 See 42 U.S.C. § 9607(a). Demand letters should explicitly state that interest begins to accrue on expended costs at the time of demand.
6 Transmittal of the Superfund Cost Recovery Strategy. J. Winston Porter, July 29, 1988, page 22.
7 In many cases, however, failure to respond to a demand or failure to provide a good-faith offer will result in enforcement action by the
Agency.
8 In fact, in low dollar cases the Region might know early on that it will not refer the matter to the Department of Justice. Nevertheless
issuing a demand might still be appropriate.
-------
Perfect Federal Lien and provide an opportunity for a hearing before a neutral official. If a
hearing is requested, the Region may wait to record the lien after the neutral official has
concluded that the statutory elements for recording the lien have been satisfied. Section 107(1)(3)
of CERCLA provides that if the State has not by law designated an office for receipt of the notice
of the lien, then the notice shall be filed in the office of the clerk of the United States district court
for the district in which the real property is located.
EPA has encouraged the use of CERCLA section 107(1) liens in various guidance
documents.9 Although the Regions expend resources perfecting and maintaining liens, in many
instances a lien is an effective cost recovery tool.10 For example, in one case a bankruptcy court
approved a Stipulation and Order that reimbursed EPA approximately $2.6 million in response
costs from the filing of a lien. The money was disbursed from the proceeds of the sale of the
source property at a Superfund site. EPA received 75% of the property sale proceeds by
advancing an argument that the vast majority of its CERCLA lien took priority over the next
largest claim, a county's real property tax lien, which was filed after EPA's lien arose. EPA
argued its lien had priority because a plain reading of section 107(1)(3) of CERCLA made it clear
that a CERCLA lien is subject only to the rights of purchasers, holders of security interests, or
judgment lien creditors whose interests are filed under applicable State law before notice of the
CERCLA lien has been filed.
Liens provide EPA the opportunity to recover CERCLA section 104(b) investigation and
monitoring costs incurred by EPA regardless of whether an enforcement document is in place.
In addition, filing a lien and demonstrating a willingness to proceed to a lien hearing can
sometimes encourage an uncooperative party to move toward settlement. Finally, at some sites
the only asset is the property and the lien allows the Agency to recover some of its costs once the
property is sold.
III. Using Section 106(a) Unilateral Orders to Preserve Cost Recovery Resources
It is not unusual with a time-critical removal action to initiate the response as a Fund-lead
activity. With a time-critical removal, the necessity to address the release, or threat of release,
initially takes precedence over conducting a PRP search to find a liable party that can perform
the response. Regardless, Regions should initiate a PRP search as early as practicable because it
is vital to identify any viable PRPs that will be able to complete the removal action as a PRP-lead
activity. Regions should routinely assess the possibility of converting Fund-lead removal actions
into enforcement-lead. We encourage the Regions to develop a formal evaluation process for
removal actions that will allow the Regions to reassess the status of liable parties and explore the
option of issuing a section 106(a) order to a liable party to complete the removal action.11 Such
an approach fulfills the "enforcement first" policy of the Agency and allows Regional removal
9 See Guidance on Federal Superfund Liens. Thomas L. Adams Jr., September 22, 1987; Supplemental Guidance on Federal Superfund
Liens, William A. White, July 29, 1993; Use of Federal Superfund Liens to Secure Response Costs, Barry Breen, May 28, 2002.
10 We recognize that in cases where the value of the site property is extremely low and is not likely to appreciate it might not be appropriate to
expend resources perfecting a 107(1) lien.
11 For more on issuing UAOs for time-critical removal actions, see Issuance of Administrative Orders for Immediate Removal Actions. Lee
M. Thomas, Feb. 21, 1984. It should be noted that issuing aUAO is not the only possible option for the Agency. Time permitting, Regions
might find it more beneficial to negotiate an Administrative Order on Consent rather than issue a UAO.
-------
resources to be preserved for other Sites where a viable, liable party is not available to perform
the response.12
IV. Consider Pursuing Costs Where the Total Site Costs are Less Than $200.000
In 1995, EPA issued guidance stating that Regions may prepare an abbreviated Decision
Document for cases where total response costs are less than $200,000.13 Unfortunately, this
brief guidance may have inadvertently given the impression that it is generally not appropriate
for EPA to pursue claims under $200,000. The intent was not to discourage the pursuit of these
smaller dollar claims, but rather to provide the Regions with flexibility to decide how best to
manage smaller dollar claims by using an informal cost-benefit analysis. With very small dollar
claims it will rarely make sound financial sense to perform an extensive and costly PRP search or
to issue numerous demands or information requests. However, considering the numerous and
varied cleanup cases EPA manages, it is very likely that Agency enforcement action would be
appropriate in some cases.14
Additionally, the Agency has become more adept at recovering CERCLA costs due to a
standardized cost recovery approach, and it is now possible to pursue some of these smaller
dollar claims more efficiently. While it is true that the Agency has historically placed, and
continues to place, a higher priority on cost recovery cases over $200,000, there may be other
reasons besides the dollar value of the case to pursue enforcement.15
Since the inception of the Superfund program EPA has recovered nearly $138 million at
sites where total costs were less than $200,000, and we strongly encourage the Regions to
continue pursuing smaller dollar claims whenever appropriate. The standard for pursuing these
smaller dollar claims is the same for any other claim for response costs — the Regions should
weigh the resources needed to recover the costs against the amount that may be recovered, while
considering the likelihood of recovery.16
V. Anticipate and Pre-empt Bankruptcy's Impact on Cost Recovery
Although EPA settlements often allow for "periodic" billing of future response costs, the
Agency strives to bill its costs annually.17 The importance of annual billing has been highlighted
recently by a number of bankruptcy filings involving companies that were historically considered
highly solvent that have extensive environmental liabilities at Superfund sites nationwide.18
12 See Enforcement First for Remedial Action at Superfund Sites. John Peter Suarez and Marianne Lament Horinko, September 20, 2002
(PRPs should conduct removal actions whenever possible, and EPA should pursue enforcement opportunities throughout the Superfund
process).
13 See Cost Recovery Cases Where Site Costs Total Less Than $200.000.00. Bruce M. Diamond, May 12, 1995.
14 For example, when the PRP is known; where the evidence is straightforward and uncontested; and where the PRP is viable.
15 There are some cases, where, even if the enforcement costs to the Agency potentially exceed the estimated recovery, EPA might decide that
it is appropriate to pursue its claim because of an important legal or policy issue or the party's recalcitrance.
16 Interim CERCLA Settlement Policy. Lee M. Thomas, Courtney M. Price, F. Henry Habicht, December 5, 1984.
17 See CERCLA Future Response Costs: Settlement. Billing and Collection. Kenneth Patterson, June 20, 2002.
18 Within the last few years, many companies, including Chrysler, General Motors, ASARCO and W.R. Grace, have filed for protection under
Chapter 11 of the United States Bankruptcy Code.
-------
Sending annual bills in the years prior to a company's bankruptcy filing increases the probability
that the Agency's annually incurred costs would be paid in full by the party before a potential
bankruptcy filing. Once a PRP files for bankruptcy, all of EPA's unpaid response costs are
lumped together in its proof of claim, with the potential that EPA will not recover all if its costs.
As a way of maximizing our recovery of incurred costs, Regions should continue to strive to bill
future response costs annually, recognizing the potential impact any subsequent bankruptcy
filing would have on our recovery.
VI. Appropriately Document All Costs
As noted in the 1988 Cost Recovery Strategy, if a Region decides not to pursue a cost
recovery action for either removal or remedial costs, a decision must be documented in a close-
out memorandum.19 The Region should prepare a similar document in cases where the Agency
has settled either administratively or judicially for less than 100% of costs and does not
contemplate pursuing non-settling parties for the balance of the Agency's unrecovered costs. In
the judicial context, this is typically done in the Ten Point Settlement Analysis that accompanies
the referral to DOJ for entry of the consent decree.20
In the administrative context, it is equally important to perform a similar analysis and
generate a final decision document.21 It is essential for EPA's final decision document to
identify total costs incurred by EPA, noting the amount of costs recovered, and any compromise
of costs, including a justification for the compromise. The final decision document memorializes
the Region's evaluation of the remaining cost recovery potential at the site and its decision to
remove the case from further consideration by the Agency. This documentation should be
retained in the site file so that a Region can easily provide justification for the decision not to
pursue costs in response to any internal or external audit or cost recovery review.22 In addition
to the final decision document, the Region should also place in the permanent site file all
supporting documentation, such as an index of all PRP search documents and financial analyses
used in making the decision not to pursue further cost recovery. The index should include the
title of the final decision document, the date the document was created/finalized and the physical
or electronic location of the supporting documents. The final decision document is enforcement
confidential and should not be included in the administrative record.
Along with preparing the appropriate decision document, the Regions should continue to enter
decision document information in the Comprehensive Environmental Response, Compensation,
and Liability Information System (CERCLIS).23 When entering this information, the Region
19 See Guidance on Documenting Decisions Not to Take Cost Recovery Actions. Jonathan Z. Cannon, June 7, 1988.
20 If the decision not to pursue unrecovered costs is made after the Ten Point is finalized the Region should create a close-out memorandum
that documents the basis of the decision not to pursue unrecovered costs. See Transmittal of the Superfund Cost Recovery Strategy. J.
Winston Porter, July 29, 1988, page 39-40.
21 The name of the final decision document may vary by Region, for example, the "close-out" Memorandum, a "write-off memorandum or a
"decision not to take cost recovery action."
22 Creation of a final decision document to not pursue cost recovery does not bar the Agency from re-opening the case in the event additional
parties or evidence is discovered at a later date. Any subsequent action, however, might be barred by the statute of limitations in
section 113(g).
23 For consistency the CERCLIS justification should be explicitly stated in the closeout document.
-------
will include the appropriate basis for not pursuing costs.24 CERCLIS provides seven possible
justifications for the decision not to pursue costs.25 These are:
(1) No PRPs identified;
(2) No viable PRPs;
(3) Insufficient evidence;
(4) Questionable case;
(5) Insufficient Resources;
(6) Consideration of Response Work; and
(7) Other.
As a point of clarification, "insufficient resources" refers to Regional resources, not PRP
resources, and can only be used in cases where the total costs of response do not exceed
$200,000.26 If a PRP is defunct, bankrupt, or insolvent, the proper category is "no viable PRPs."
"Questionable case" generally refers to a legal impediment to filing a cost recovery action (e.g.,
the statute of limitations has run). "Consideration of Response Work" is for cases where costs
are written off due to consideration of response work that the party has performed at the Site.
The "Other" category should be used sparingly to represent cases that truly do not fall
within one of the other specific categories. When the "Other" category is selected, Regions are
strongly encouraged to use the comment field in CERCLIS to provide additional details of the
decision and avoid the necessity of any additional follow-up to determine the basis of the
decision.
The following CERCLIS data pull shows the approximate use of each category for not
pursuing cost recovery since the inception of the Program:
Justification
No Viable PRP
No PRPs Identified
Questionable Case
Insufficient Evidence
Insufficient Resources
Other
Two or more justifications provided
No justification provided
Percentage of Write-offs
29%
11%
3%
2%
2%
20%
13%
20%
Based on the data, approximately twenty percent of the time, the Regions failed to select
a category or use the comment field in CERCLIS to justify the write-off. Another twenty
percent of the time, the Region selected the "Other" category, but failed to provide a reason in
24 CERCLIS refers to the decision not to pursue costs as a "write-off."
25 Six of the justifications are taken directly from Guidance on Documenting Decisions not to Take Cost Recovery Actions. Jonathan Z.
Cannon, June 7, 1988.
26 See Guidance on Documenting Decisions not to Take Cost Recovery Actions. Jonathan Z. Cannon, June 7, 1988, page 5. If a Region needs
additional resources for a cost recovery case over $200,000 it should contact OSRE for assistance.
-------
CERCLIS for the write off.27 Thus, in roughly forty percent of the cases where costs were
written off, CERCLIS provides no assistance in determining why costs were not pursued.
OSRE recognizes that there are final decision documents for these cases, but without the
additional details as to why the cases fit into the "Other" category, CERCLIS does not provide a
quick and easy way to report why the costs were not pursued. It is important for the Regions to
accurately identify the bases of the decisions not to pursue costs in CERCLIS, as accurate data
entry is critical to a more robust review and analysis of these write-off cases.
VII. Conclusion
This memorandum is the first step in a continuing dialogue with the Regions on
maintaining and improving CERCLA cost recovery. OSRE encourages Regions to revisit
current cost recovery practices and adopt suggestions from this memorandum where appropriate.
In addition, we look forward to working with the Regions to identify opportunities to improve
the efficiency and effectiveness of the cost recovery program. Questions or comments regarding
this document may be directed to David Dowton (dowton.david@epa.gov) 202-564-4228,
Carolyn Lane-Wenner (lane-wenner.carolyn@epa.gov) 202-564-5129 or Ruth Broome
(broome.ruth@epa.gov) 202-564-6077.
cc: Superfund Removal Managers, Regions I-X
Superfund Regional Counsel Branch Chiefs, Regions I-X
Information Management Coordinators, Regions I-X
Stefan Silzer, Director, Office of Financial Management (OFM), OCFO
Rafael Stein, Director, Financial Services Division, OCFO
lantha Gilmore, Director, Program Costing Staff, OFM, OCFO
Meshell Jones-Peeler, Deputy Director, Program Costing Staff, OFM, OCFO
27 Although many of the "Other" or "no reason given" selections in CERCLIS occurred early in the Program, Regions are still selecting
"Other" often enough that it poses a concern.
-------
ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D C. 20460
MAR 8 2011
MEMORANDUM
SUBJECT; PRP Search Documentation Summary Requirements for Decision Documents to Not
Pursue Cost Recovery Where Unaddressed Past Costs are Greater Than $200,000
FROM: Elliott J. Gilberg, Director 'L.'*• *._ u -U. / X (. I,...
Office of Site Remediation Enforcement \
TO; Superfund National Policy Managers, Regions I - X
Regional Counsel, Regions I - X
I. Background/Purpose
In 2009, the Environmental Protection Agency's (EPA) Office of Inspector General (IG)
evaluated cost recovery activities at removal sites not on the National Priorities List (NPL) to
identify EPA's internal controls for monitoring cost recovery, documenting potentially responsible
party (PRP) searches, documenting removal milestones, and ensuring accurate cost recovery data.1
As a result of the evaluation, the IG recommended that EPA's Office of Enforcement and
Compliance Assurance (OECA) develop standard and mandatory PRP search documentation
requirements that Regions would complete as part of the cost recovery decision document (closeout
memo).
OECA agreed with the IG's recommendation. As such, this guidance establishes standard
and mandatory PRP search documentation requirements to be included with Decision Documents
(DD) memorializing the Agency's determination to not pursue cost recovery, where total
unaddressed past costs are greater than $200,000. This will ensure that standard and consistent PRP
search information is available and easily locatable for all situations where EPA issues such decision
documents- Based on this guidance, in the future these decision documents should:
• describe the PRP search activities undertaken for the site,
• summarize the results from those activities,
* include references for all PRP search documents used to make the decision to not
pursue the unaddressed costs, and
* identify where those PRP search documents are located.
1 See EPA Needs to Improve Internal Controls to Increase Cost Recovery (October 7,2009} available at
>' I r 4 I ( 'i (i >RLl • I I | « , • i V
Recycled/RiicyclBble » Pmnmj ,v,th i ,, , Procois Chloric* Hee n,.,.¥.,i=d
-------
The attached documentation tool is intended as a standard format for documenting the PRP
search activities a Region has completed prior to issuing a decision to not pursue cost recovery.
II. Minimum Documentation Requirements
The PRP Search Documentation Reference Summary (hereafter referred to as the Reference
Summary (Attachment A) should include, at a minimum, the following information in order to
sufficiently document the site-specific PRP search activities that were conducted by the Region. The
reference summary should be attached to the PRP Search Activities Verification Form identified
under Section III and/or the cost recovery Decision Document. The minimum PRP search
documentation requirements include:
A. Site name/identifiers
This section includes the official site name, aliases, operable units, and the site-spill identifier
(SSID) from the Integrated Financial Management System (IFMS).
B. Point of Contact
This section includes the name of the individual(s) responsible for the site-specific PRP
search activities at the time the Reference Summary or Regional Alternative, provided for in
Section VII, is completed and verified. The Region should provide the individual's contact
information for follow-up.
C. PRP Search Activities Accomplished
This section includes the title/description of the PRP Search activities completed. The
Reference Summary divides PRP search activities into several major categories based on
those essential tasks defined in Chapter 2 of the PRP Search Manual . Those categories are
further detailed in the Reference Summary and include several mandatory activities relating
to the property owners, site operational history, and liability/viability3 determinations for
identified responsible parties.
D. Activity Completion Date
This section includes the date on which each specific PRP search activity was completed.
This may be the date on which a specific reference document was created or reviewed by the
PRP Search staff person referred to in paragraph B, above.
2 http://www.epa.gov/oecaerth/resources/publications/cleanup/superfund/prpmanual/prp-search-man-cmp-09.pdf
3 In this context, viability relates to the continued existence of a PRP in some form. It does not necessarily include a
formal ability to pay determination.
- 2 -
-------
E. Reference Document Location
This section includes the specific location in the site file, including, but not limited to
Superfund Document Management System (SDMS) index information, folder locations, and
Bates stamping numbers, for documents supporting each PRP search activity listed in the
Reference Summary.
III. PRP Search Activities Verification
The Reference Summary should be attached to either (1) the PRP Search Activities
Verification form or (2) the Decision Document. The subject PRP Search Activities Verification
form or associated Decision Document should contain the site name and the SSID, a
synopsis/summary of the results of the PRP search efforts for the site, or portion of the site in
question. If this information is included in the Decision Document in lieu of a separate PRP Search
Activities Verification form, it should also include the amount of past costs being addressed through
the action. If the PRP Search Activities Verification form is for a portion(s) of a defined site, the
Region should indicate the unique SSID for the subject portion(s), or assign another unique site
identifier to the portion(s) in question.
The PRP Search Activities Verification form should contain a signed statement by the
individual in the Region (e.g., investigator or the investigator's supervisor), responsible for
overseeing PRP search activities at the site (or portion thereof), attesting that sufficient PRP search
tasks have been completed at the site to support the decision to not pursue unaddressed past costs.
The document should be addressed to the person responsible for oversight of PRP search activities in
the Region, as well as to the site file. An example/sample is attached (Attachment B). Once the PRP
Search Activities Verification form is signed, the date of the final signature should be entered into
CERCLIS as the PRP search completion date. After entry into CERCLIS, the signed document
should be added to the official site file.
IV. Scope
The Reference Summary is only required for sites where the Region decides to not pursue
cost recovery and unaddressed past costs are greater than $200,000. Regions may, at their
discretion, choose to use the associated Reference Summary and PRP Search Activities Verification
form as a supporting document when proceeding with Fund-lead remedial action sites, certain Fund-
lead removal actions, as determined by the Regions, and at sites where EPA issues a Decision
Document to not pursue cost recovery less than $200,000.
V. Alternative Methods for Satisfying Guidance Requirements
As an alternative to completing and attaching the "PRP Search Reference Summary" and
associated PRP Search Activities Verification form, Regions may include a formal PRP Search
Report to satisfy the requirements of this guidance, provided that the report contains a detailed
summary/bibliography of the documents cited in the report. If the documents cited in the formal
- 3 -
-------
PRP Search Report are included in the report or its appendices, this shall be deemed sufficient to
satisfy the requirements of this guidance. The PRP Search Report should be annotated to identify
the physical or electronic location of the documents referenced in the report.
In addition, should the Region have an alternative mechanism that meets the key
requirements of the Reference Summary and associated PRP Search Activities Verification form,
such as the 10-point settlement analysis, it may use that mechanism as an alternative to the examples
provided in this guidance. Questions concerning whether the alternative mechanism meets the
requirements of this guidance should be directed to the OSRE Leader, National PRP Search
Enhancement Team.
VI. Prior Applicable Guidance
EPA has previously issued the following guidance and policy memoranda that address
Superfund cost recovery and what is required of EPA when it makes a decision to not pursue cost
recovery which remain pertinent and relevant today.
- Superfund Cost Recovery Strategy (J. Winston Porter, July 29, 1988) available at
http://www.epa.gov/compliance/resources/policies/cleanup/superfund/cost-recover-
mem.pdf:
- Guidance on Decisions not to Take Cost Recovery Action (Jonathan Z. Cannon,
June 7, 1988) (attached); and
- Cost Recovery Cases Where Site Costs Total Less Than $200,000 (Bruce M.
Diamond, May 12, 1995)
http://www.epa.gov/compliance/resources/policies/cleanup/superfund/costrecovcase-
mem.pdf.
These three guidance documents address, among other subjects: (1) when it is appropriate to make a
decision to no longer pursue cost recovery; (2) what types of PRP search activities should generally
be performed prior to making a decision to not pursue cost recovery; (3) how to document the basis
for decisions to not pursue cost recovery; and (4) the universe of sites/cases that are subject to PRP
search and documentation requirements. This guidance document supplements the above referenced
documents. This guidance does not supersede the above referenced documents or affect existing
requirements related to preparation of 10-point settlement analyses for CERCLA judicial
enforcement actions.
-------
VII. Enforcement Confidentiality
The attached Reference Summary and any associated documents (or alternative documents
used to meet these requirements), once completed and submitted to the site file, should be evaluated
by the Region on a case by case basis to determine if they should treated as "enforcement
confidential" and therefore not to be released under FOIA.
VIII. Contact Information
If you have any questions, please contact Bruce Pumphrey or Nancy Deck of the Program
Evaluation and Coordination Branch, at 202-564-4222 or 202-564-6039, respectively.
Attachments
cc: National PRP Search Enhancement Team
Superfund Regional Counsel Branch Chiefs
Monica Gardner
Kenneth Patterson
Benjamin Lammie
Helena Healy
Reference Summary Guidance Development Team
- 5 -
-------
Attachment A
PRP Search Documentation Reference Summary
for Decision Documents to Not Pursue CERCLA Cost Recovery
Site/Case Identification Information
Site Name:
Operable Unit (Where appropriate):
Site Spill Identifier:
Enforcement/Cost Recovery Contact Name:
Site Attorney Name:
Prior Site Enforcement/Cost Recovery Contact:
Amount Covered by Decision Document (direct and Indirect Costs):
Basis for not pursuing cost recovery:
No PRPs Identified at the site
PRPs Identified in Search Not Financially Viable
Available evidence does not support one or more elements of a prospective case
Pursuit of costs is not justified. Cost of pursing cost recovery will exceed likely
cost recovery and/or documented response costs
Legal case is so questionable that cost recovery should not be pursued
Limited Agency resources are being directed at higher priorities.
Other Reasons (please describe)
PRPs Investigated:
Name
Current
Owner/
Operator
Owner/
Operator at
Disposal
Arranger
Transporter
-------
Attachment A
PRP Search Documentation Reference Summary
for Decision Documents to Not Pursue CERCLA Cost Recovery
A. Information Collection/Associated Party ID
Al - Property Ownership (Mandatory)
A2 - Operational History (Mandatory)
A3 - Waste Contribution/Other Party ID
A4 - Transporter Identification
A5 - Other Investigative Information
A6 - Ground Water- Specific Party Information
A7 - Mining-Specific Party Information
B. Liability Evaluation (Mandatory)
C. PRP Contribution Evaluation (as appropriate)
D. PRP Financial Viability/ATP/Insurance
E. PRP Notification
F. Other Site Specific PRP Analysis (as determined necessary
by Region)
Applicable
(Y/N?)
Completed
(FY/Q)
-------
Attachment B
PRP Search Activities Verification Form
for Decision Documents to Not Pursue CERCLA Cost Recovery
Date:
Subject: Verification of PRP Completion for Site Name/SSID site located in
(City/State)
From: Site Enforcement/Cost Recovery Specialist (or other Regional designee)
To: Designated Regional Official/Site File
The purpose of this memorandum is to verify that as of (Date) attesting that all reasonable
PRP search tasks have been completed at the site in support of the Regional decision not to
pursue cost recovery, heretofore referred to as the "Decision Document," in the amount of
$ (Decision Document Amount Addressed) dated (Date Decision Document signed by
designated Regional Official).
Attached is the PRP Search Reference Summary or Regional Alternative which list all PRP
search documents that were used in making this determination and their respective location.
Questions regarding this verification or the contents of the attached reference summary
should be address to the Site Enforcement/Cost Recovery specialist for this site.
-------
*• •» \ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
<.t OF
JUN 23 2011 ENFORCEMENT AND
••^URANCE
MEMORANDUM
SUBJECT: Transmitted of "Preliminary Potentially Responsible Party Search Completion"
Measure Definition for Incorporation into the Superfund Program Implementation
Manua1forFY20I2
FROM: Elliott J. Gilberg, Director £ &U+tf(
Office of Site Remediation Enforcement
TO: Superfund National Policy Managers, Regions I — X
Superfund Regional Counsel Branch Chiefs, Regions I - X
Attached is the "Preliminary Potentially Responsible Party (PRP) Search Completion"
guidance document which describes preliminary search activities for identifying PRPs related to a
site. This document also provides guidance on how to properly document the activities conducted in
order to determine if there are PRPs to perform, or finance, all or a portion of the initial non-
emergency CERCLA removal or remedial response action at a site. The guidance contained in this
document will be incorporated as a reporting measure into the Superfund Program Implementation
Manual (SPIM) for implementation beginning in FY2012.
The "Preliminary PRP Search Completion" measure was developed in response to the Office
of Inspector General(OIG) Evaluation Report titled "EPA Needs to Improve Internal Controls to
increase Cost Recovery," Report Number: 09-P-0144, dated April 27, 2009. The OIG recommended
that the Assistant Administrator for the Office of Enforcement and Compliance Assurance (OECA)
develop and implement a control to "monitor the status and timeliness of PRP searches at non NPL
sites." OECA agreed with the recommendation and worked with the Regions, via the National PRP
Search Enhancement Team, Superfund Policy Managers and Office of Regional Counsel Superfund
Branch Chiefs to develop the measure. "Preliminary PRP Search Completions" will be tracked in
CERCLIS to help EPA determine if basic PRP search activities have been completed and if they led
to timely PRP response and/or cost recovery actions. When developing the measure, our focus was
to ensure that the completion of the activities outlined in the guidance would maximize the
opportunity for PRP response while not causing undue delays in initiating a timely Fund or PRP-lead
initial "non-emergency" response action at a site.
iniamel Andres* rURi) • imn.rfwww.apa gov
PnntKtl with Vegetable OH Based inks en i ,jor , PcEi^ansumsr. Process CNanrw Frais RsoyelBii Paper
-------
Regions are expected to begin reporting "Preliminary PRP Search Completions" beginning in
FY2012 for NPL and non-NPL sites where a non-emergency removal or remedial response action is
expected at a site. The Preliminary PRP Search enforcement action is being added to CERCLIS and
will be available for update beginning in FY2012. Should you have any questions or concerns,
please contact Bruce Pumphrey of my staff at 202-564-4222 or via e-mail at
pumphrey.bruce@epa.gov.
Attachment
cc: National PRP Search Enhancement Team
Monica Gardner
Karin Leff
Benjamin Lammie
Helena Healy
-------
Attachment
Preliminary Potentially Responsible Party
Search Completion Definition and Documentation/Reporting Requirements
Definition: "Preliminary PRP Search Completion:" the completion of certain activities
taken to make an initial identification of PRPs at a site in order to determine if there are
PRP(s) that are able to perform or finance all or a portion of the initial non-emergency
CERCLA removal or remedial response action at a site.
The Preliminary PRP Search will be considered complete when the Regions perform the
PRP Search tasks steps outlined in section 1 or 2 below.
1. Regions have completed and properly documented PRP Search tasks A-E, below,
as appropriate and practicable.
A. Site Location and Property Description
The Region has, as thoroughly as possible, identified the site location (including
one or more of the following: street address; parcel ID#; legal description from
current deed of ownership; and/or tax map) as necessary to complete requirement
l.B. below.
B. Current and Past Site Ownership Identification/Notification
The Region has, using the tools most appropriate for the site, conducted activities
to identify current site owners as well as past site owners at the time of disposal of
hazardous substances and where those site owner PRPs exist and can be located
within a reasonable time, considering the exigencies of the situation, the Region
has provided verbal notice and/or issued General Notice Letters to those parties
the Region determines to be liable and capable of performing the initial response
action at the site1. In addition, as a part of this task, Regions have obtained
information necessary to secure site access in order to allow for performance of
the initial non-emergency response action at the site.
C. Site Operation Identification/Notification
If the operator(s) of the site/facility that caused the release or threat of release of
hazardous substances are different from the site/facility owner(s) at the time of
disposal, the Region has undertaken PRP Search activities necessary to identify
site/facility operators and where those site operator PRPs exist and can be located
within a reasonable time, considering the exigencies of the situation, the Region
has provided verbal notice and/or issued General Notice Letters to those parties
the Region determines to be liable and capable of performing the initial non-
1 Regions may decide not to provide notice to certain liable and capable parties identified under tasks IB,
1C, and IE,, but should document the basis for such decisions to the site file through such mechanisms as
the Removal Action Memo Enforcement Addendum or the RI/FS Enforcement Decision Document.
-------
emergency response action at the site
D. Site Owner/Operator Liability/Financial Viability Determination
For each party identified under A., B. or C. of this section, the Region has
determined, based on publicly available information whether: (1) the party may be
liable under Section 107(a) of CERCLA; and (2) the party may be financially
capable of performing or paying for all, or a portion of, the initial non-emergency
response action at the site.
E. Arranger/Transporter (A/T) Identification/Notification
The Region has determined, based on readily available information such as site
records, that either (1) no A/T PRPs appear to exist at the site or (2) there are A/T
PRPs at the site, and the Region has provided verbal notice and/or issued General
Notice Letters to those A/T PRPs initially identified through such information
who the Region determines to be liable and capable of performing the initial non-
emergency response action at the site and determined that, to the extent that A/T
PRPs exist, additional PRP search efforts may be required.
OR
2. The Region has completed all, or a portion of, the above PRP Search tasks and
entered into a settlement with or issued orders to compel the identified PRPs to
perform the initial non-emergency response action at the site.
Reporting and requirements for documentation of Preliminary PRP Search
Completion
If the Region has satisfied the Preliminary PRP Search Completion requirement by
satisfying the tasks identified in Section 1, above, the Region should document this
accomplishment in CERCLIS and in the site file. The documentation of the Preliminary
PRP Search Completion for the site file should include a summary of the PRP Search
tasks completed for each site. Such documentation can follow the format referenced in
the January 2011 PRP Search Reference Summary guidance document, or the Region can
follow a format already established, as long as it documents the Preliminary PRP Search
Completion tasks performed and results (e.g., Removal Action Memorandum
Enforcement Addendum, RI/FS Enforcement Decision Document as outlined in the 2005
RI/FS Guidance, OSWER Directive 9355.2.21(August 9, 2005)). The date that the
documentation summarizing the PRP search tasks is created should be recorded as the
completion date of the Preliminary PRP Search Completion milestone in CERCLIS.
If the Region has satisfied the Preliminary PRP Search Completion requirement by
performing the tasks identified in Section 2., above, the date of the enforcement
action/settlement to compel the initial non-emergency response action at the site should
be recorded in CERCLIS. That date should also be used as the completion date of the
-------
Preliminary PRP Search Completion milestone in CERCLIS, while not required, Regions
may also want to document the PRP search activities accomplished prior to meeting the
requirements in section 2 in the site file, through the use of the PRP Search
Documentation Summary or other Regional mechanism.
------- |