SrEPA
PRP Search Manual
UNITED S-
environm
PROTECTION
Prepared for:
Personnel Performing PRP Searches
United States Office of Enforcement 330-B-i 7-001
Environmental Protection and Compliance Assurance September 2017
Agency Office of Site Remediation Enforcement
OSRE-GUID-2017-001 -RO
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A
UN-, rtii Ll \ r-.S ENVIRONMENTAL Pt '01 FX * SUN AGENCY
WASHINGTON, D.C. 20460
23B£
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9
MEMORANDUM
SUBJECT: Transmittal of the 2017 PRP Search Manual
FROM: Cynthia L. Mackey, Director \ Y Vf.,
Office of Site Remediation finforeemetit •
1
TO:
Super fund National Polic\ Managers (Region I - X)
Regional Counsels {Regions I - X)
1 am pleased to announce the issuance of the 2017 FRF Search Manual, -which is puhlich
available oe the Agency's website, The manual was updated by Agency staff involved in
the potentially responsible party (PRP) search process and members of the National PRP
Search Enhancement 1 earn. Their collective effort has resulted in a useful resource that
will enhance the PEP search process, fhe 2017 edition of the manual supersedes the
2009 edition.
The manual is a working document intended to provide information to persons involved
in the PRP search process. Users are encouraged to provide comments to the team
members listed below and in the manual. Changes made necessary by new legislation,
new policy or guidance, or relevant comments will be documented by the team, and the
manual will be updated through addenda posted on line.
Information arid procedures set forth in the manual are based on current EPA policy,
guidance, and practice. References to guidance documents and other resources mentioned
in the text are provided either at the end of each chapter or in the appendices.
The manual is available on line at https://www, epa, go v/enforce nicrn pro-search -manual,
The Agency is pleased to make the on-line manual available to our state, tribal, and other
federal agency peers who are involved in enforcement and PRP search activities.
If you have any questions or comments regarding the manual, please contact the Team
Lead, Nancy Deck at (202) 564-6039 (deck .nancy a epa.go v) or any team member.
Recycled/Recyclable • Printed with ;ess Chlorine Free Recycled Paper
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National PRP Search Enhancement Team
Region 1
James Israel
Donna Murray (Retired)
Region 2
Sharon Kivowitz
Robert Montgomery
Region 3
Carlyn Frisk
Region. 4
Johnny Morgan
Blake Sterling
Region 5
Carolyn Boh ten
Lance Vleek
Region 6
Stephen Capuyan
Robert Werner (Retired)
Region 7
Micheie Drennen
Milady Peters
Anna Rock
Region 8
Shawo McCaffrey
Mike Rudy
Region 9
Carl Hrickner
Kim Muratore
Region 10
Stephanie 1.bright
HQ;
Nancy Deck
Clarence leatherson
Monica (iardner
Stephen K.eim
Nadya Spice
cc: Rafael Deleon, Deputy Director, OSRL
Monica Gardner. Division Director. PPKD
Helena Healy. Deputy Division Director. PPED
Kenneth Patterson. Division Director, RSI)
Benjamin Laramie, Acting Deputy Division Director, RSD
Jill 1 .owe. Lead Region Coordinator
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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, ongoing, or considered
sufficiently complete to pursue a response or cost recovery enforcement action or to
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 its
liability provisions, and discusses how and why the Agency gathers, exchanges, and
manages PRP search information.
Chapter 2
PRP Search Overview 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 phase of
the PRP search.
Chapter 4
Follow-up PRP Search describes more specialized tasks that may be performed during
follow-up to the baseline phase of the PRP search.
NOTE: An electronic copy of the PRP Search
Manual is available on line at
https://www.epa.aov/enforcement/prp-search-
manual
Future updates will also be posted at this address.
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Acknowledgments
The PRP Search Manual was prepared under the oversight of the U.S. Environmental
Protection Agency's Office of Enforcement and Compliance Assurance, Office of Site
Remediation Enforcement (OSRE), and is the result of a joint effort of the National PRP
Search Enhancement Team and subject matter experts in EPA's headquarters and regional
offices. OSRE's Nancy Deck and Monica Gardner served as Project Manager and Manager
Advisor, respectively. The product of this teamwork is a guidance and reference document
that covers all aspects of the PRP search process.
National PRP Search Enhancement Team
Donna Murray and James Israel (Region 1); Sharon Kivowitz and Robert J. Montgomery
(Region 2); Carlyn Prisk (Region 3); Blake Sterling and Johnny Morgan (Region 4); Carolyn
Bohlen and Lance Vlcek (Region 5); Stephen Capuyan and Robert Werner (Region 6);
Michele Drennen, Anna Rock, and Milady Peters (Region 7); Mike Rudy and Shawn
McCaffrey (Region 8); Kim Muratore and Carl Brickner (Region 9); Stephanie Ebright
(Region 10); Victoria van Roden, Clarence Featherson, Stephen Keim, Nadya Spice, Nancy
Deck (Team Leader), and Monica Gardner (Manager Advisor) (OSRE).
Headquarters Contractor: DPRA Incorporated
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Disclaimers
This manual supersedes the 2009 PRP Search Manual 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 set forth in this
manual.
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PRP Search Manual
September 2017
1.0 Overview of CE RCLA and PRP Searches 1
1.1 Overview of CERCLA 1
1.1.1 Overview of the Superfurid 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
1.2.2 Prima Facie Ca se 11
1.2.3 Strict Liability 14
1.2.4 Joint and Several Liability 14
1.2.5 Statutory Defenses to CERCLA Liability 16
1.2.6 Statutory Exemptions and Protections from CERCLA Liability 18
1.2.7 EPA Enforcement Discretion Policies 28
1.3 PRP Notification of Potential Liability 35
1.3.1 General Notice Letters 35
1.3.2 Special Notice Letters 37
1.3.3 Types of Settlements 38
References 40
Chapter 1: Overview of CERCLA and PRP Searches
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PRP Search Manual
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2.0 PRP Search Overview 45
2.1 Roles and Responsibilities 46
2.1.1 PRP Search Team 48
2.1.2 Opportunities for PRP Input 56
2.2 PRP Search Plan 61
2.2.1 Timing and Duration 63
2.2.2 Streamlining Considerations 73
2.3 Information Disclosure Issues 75
2.3.1 Release of Information 75
2.3.2 Handling Sensitive Records 75
2.3.2.1 Confidential Business Information 76
2.3.2.2 Enforcement-Confidential/Enforcement-Sensitive 76
2.3.2.3 information Requested Pursuant to FOIA 77
2.4 Document Management 84
2.4.1 Superfund Enterprise Management System 85
References 87
Chapter 2: PRP Search Overview
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PRP Search Manual
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3.0 Baseline PRP Search 89
3.1 Review Files and Collect Records 91
3.1.1 Federal Files 92
3.1.2 State Files 93
3.1.3 Local Government Files 95
3.1.4 Other Records 96
3.1.5 Special Planning Considerations 98
3.2 Organize Records and Track Correspondence 104
3.2.1 Organization 104
3.2.2 Correspondence Tracking 107
3.3 Issue Information Requests 109
3.3.1 Identify Recipients/Draft Information Requests 111
3.3.2 Mail and Track Information Requests 129
3.3.3 Analyze Responses 131
3.3.4 Develop Response Summaries 133
3.3.5 Information Request Follow-up 134
3.4 Conduct Interviews 135
3.4.1 Interview Considerations 136
3.4.2 Who Should Perform the Interview? 140
3.4.3 Identifying Interviewees 142
3.4.4 Conducting Interviews 144
3.4.5 Interview Documentation 149
3.5 Perform Title Search 152
3.5.1 Determine Ownership Interests 153
3.5.2 Develop a Title Tree or Chronology 159
3.5.3 Additional Uses for Title Documents 161
3.5.4 Updating Title Information 161
3.6 Business Status and Financial Research 162
3.6.1 Introduction 162
3.6.2 Forms of Business Organization 163
3.6.3 Person 163
3.6.4 Business Organization 164
3.6.5 Sole Proprietorships 164
Chapter 3: Baseline PRP Search
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3.6.6 Partnerships: General Partnerships and Limited Partnerships 165
3.6.6.A Elements Specific to a General Partnership 166
3.6.6.B Elements Specific to a Limited Partnership 167
3.6.7 Corporations 168
3.6.7.A Elements Unique to Corporations 170
3.6.7. B Classification of Corporations 171
3.6.7.C Evolution of Corporations 173
3.6.7.D Sale of Stock in a Corporation 175
3.6.8 Indemnification Agreements 175
3.6.9 Other Entities 176
3.6.10 Additional Liability Theories 179
3.6.10.A Direct Liability of a Person as an Operator or Arranger 179
3.6.10.B Corporate Officers, Directors, Shareholders, or Employees 180
3.6.10.C Liability of Parent and Affiliated Corporations 181
3.6.10. D Piercing the Corporate Veil 183
3.6.10.E Successor Liability 186
3.6.11 Financial Research 190
3.6.11.A Corporation and Partnership Filings Required by States 190
3.6.11.B Court Filings 191
3.6.11.C Federal Sources 191
3.6.11.D Corporate Directories Summary 191
3.6.11. E Credit Reporting and On-Line Services 192
3.7 Develop Site Summary 192
3.8 Compile Waste-In Information 194
3.8.1 Transactional Databases 195
3.8.2 Waste-In Lists and Volumetric Rankings 197
3.9 Classify PRPs 203
3.9.1 Identify PRPs 203
3.9.2 Define PRP Categories 205
3.10 Prepare Baseline PRP Search Report 206
3.10.1 Report Format and Content 207
3.10.1.A Deliverable 1: Site Chronology and Property History 208
3.10.1.B Deliverable 2: PRP Synopsis 208
3.10.2 Report Review and Distribution 209
References 213
Chapter 3: Baseline PRP Search
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EPA SUCERFUNO SSTl 3 V H
h fid\ 1 m' M Hfl
4.0 Follow-up PRP Search 215
4.1 Issue Follow-up Information Request Letters 216
4.2 Compel Compliance with CERCLA § 104(e) 218
4.3 Issue Administrative Subpoenas 221
4.4 Perpetuate Testimony Using Rule 27 224
4.5 Perform ATP Determinations 226
4.5.1 General Policy on Superfund ATP Determinations 227
4.5.2 ATP Information Sources 230
4.5.3 Performing Property Appraisals 237
4.6 Perform Insolvent and Defunct Determinations 239
4.6.1 Definition 239
4.6.2 Insolvent and Defunct Determinations 240
4.7 Perform Waste Stream Analyses 245
4.7.1 Industrial Surveys 245
4.7.2 Process Chemistry Analysis 245
4.7.3 Waste Stream Inventory 246
4.7.4 Mine Sites 247
4.8 Interim-Final Report Preparation and Review 247
4.8.1 Interim-Final Report Follow-up 248
4.9 Pursue Litigation and Cost Recovery 248
References 257
Chapter 4: Follow-up PRP Search
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PRP Search Manual
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1.0 Overview of CE RCLA and PRP Searches 1
1.1 Overview of CERCLA 1
1.1.1 Overview of the Superfurid 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
1.2.2 Prima Facie Ca se 11
1.2.3 Strict Liability 14
1.2.4 Joint and Several Liability 14
1.2.5 Statutory Defenses to CERCLA Liability 16
1.2.6 Statutory Exemptions and Protections from CERCLA Liability 18
1.2.7 EPA Enforcement Discretion Policies 28
1.3 PRP Notification of Potential Liability 35
1.3.1 General Notice Letters 35
1.3.2 Special Notice Letters 37
1.3.3 Types of Settlements 38
References 40
Chapter 1: Overview of CERCLA and PRP Searches
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PRP Search Manual
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1.1
Overview of
CERCLA
I' IWZAIIUOIIS WASTE SIIeH
II'1 NOT ESTER
TOXIC SII!iSTAKCES JUT HE
I'HESENT. VIOLATORS SUBJECT
TO LIAIIILITY. FOR FURTHER
INFORMATION CONTACT: j
1.0 Overview of CERCLA and PRP Searches
The objective of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA) as amended by
the Superfund Amendments and Reauthorization Act of 1986
(SARA) (see Chapter 1 References, p. 40) is to reduce or eliminate
threats to human health and the environment posed by
uncontrolled contaminated sites. To meet this objective, CERCLA
created:
• a contaminated 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 respond to releases or threatened
releases of hazardous substances using funds from annual
appropriations, which include monies from the revolving trust fund
called the Hazardous Substance Superfund ("Superfund," "Trust
Fund," or "Fund"), supplemented by general revenues.1
CERCLA provides the U.S. Environmental Protection Agency (EPA or
"the Agency") with three basic options for cleaning up a hazardous
waste site:
• Under CERCU\ §§ 104 and 107, EPA can perform a response
action at the site using Superfund money and recover
response costs from potentially responsible parties (PRPs). A
1 The Superfund program is funded through annual appropriations
from general revenues and the available balance in the Trust Fund. The
Trust Fund balance includes revenues derived from cost recoveries, fines,
penalties, and interest. Prior to 1996, it was also funded via a petroleum
and chemical feed stocks tax and an environmental income tax, but the
authority for levying those taxes expired at the end of 1995.
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PRP is a person, including owners, operators, arrangers and
transporters, for whom EPA has sufficient information to
make a preliminary determination of liability under CERCLA
§ 107(a).
Under CERCLA § 106, EPA can order, or ask a court to order,
PRPs to clean up the site.
Under CERCLA § 122, EPA can enter into settlement
agreements with PRPs that require them to clean up sites or
reimburse the United States for doing so under CEPnCLA
S 107.
1.1.1
Overview off the
Superfund
Cleanup Process
CERCLA § 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 by conducting removal and
remedial response actions or requiring responsible parties to
conduct them. (These terms are defined below and in Section
1.2.2.) 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 Ust (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. The Agency 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 § 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
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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 § 104(c)(1),
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 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 a site. Issuance of such "consistency"
waivers requires that a site be proposed for or listed on the NPL.
"Remedial action" is defined in CERCLA § 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 § 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
(NCP).
EPA may perform a removal, site investigation (SI), or remedial
design (RD), or enforce a remedial action (RA) at a site not listed
on the NPL. A site must be listed on the NPL, however, for EPA to
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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 § 104(c)(3) exempts tribes
from the requirement that states provide assurances regarding
future maintenance and cost sharing at remedial action sites.
CERCLA § 104(a)(3) limits EPA's authority to respond to a release
or threat of release:
• of 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.
1.1.2
Overview of
CERCLA
Enforcement
CERCLA § 104(a)(4) gives the President authority to respond
notwithstanding the limitations in § 104(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 in a timely manner.
The NCP is the major regulation implementing CERCLA. (See
Chapter 1 References, p. 40.) 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. 40) and is occasionally supplemented with
regulations implementing amendments of CERCLA.
EPA has adopted an "enforcement first" policy for removal and
remedial actions and remedial investigation/feasibility studies
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(RI/FSs) at CERCLA sites. This means that EPA will first seek to use
its enforcement authorities to have PRPs conduct response activity,
prior to turn to the use of appropriated Superfund monies. (See
Chapter 1 References, p. 40, for policy and guidance on
"enforcement first.")
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 A PRP search seeks to establish evidence of liability by identifying
Objectives of the PRPs and associating their waste type and volume with that found
PRP Search at a s'te- EPA identifies PRPs and collects evidence by collecting site
documents, performing title searches, sending CERCLA § 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 as a
current owner or operator, prior owner or operator at the time of
disposal, arranger, or transporter who selected the disposal
location as described in Section 1.2.4. 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, secured creditor). In addition, EPA should assess whether
any of the PRPs may have a limited ability to pay (ATP) or is
insolvent or defunct. Finally, the PRP search should assist in the
early identification of contributors of relatively small quantities of
hazardous substances (i.e., de minimis and "de micromis" parties)
and orphan shares.
One of the primary objectives of the PRP search is to identify the
entire universe of PRPs. Thorough PRP searches enhance EPA's
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September 2017
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
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 § 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 § 122(g) by the
Small Business Liability Relief and Brownfields Revitalization Act"
(May 17, 2004), Chapter 1 References, p. 41.)
1.2
CERCLA
Liability
The liability scheme is an important component of CERCLA. This
section discusses categories of PRPs, defenses to and exemptions
from liability, and those circumstances in which EPA may use
enforcement discretion in determining liability.
1.2.1
Categories of
Potentially
Responsible
Parties
CERCLA § 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; and
• transporters of hazardous substances who selected the
disposal site.
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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.)
Current Owners and Operators of a Facility
CERCLA § 107(a)(1) imposes liability on the current owners and
operators 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 CERCLA § 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 § 101(20)(A) and the discussion of secured
creditors in Section 1.2.6 for more details.) In addition, current
owners who meet the statutory criteria of bona fide prospective
purchasers in § 101(40) are not liable as owners or operators
under CERCLA. (See CERCLA § 107(r) and Section 1.2.7.)
Courts have imposed owner/operator liability on officers and
personnel of both a corporation that operated a facility and its
parent corporation. 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
§ 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.
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In some instances, federal courts have applied traditional principles
of corporate law to "pierce (or lift) the corporate veil" and hold such
parties liable indirectly as CERCLA owners. In addition to setting
forth the 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 (or lifting) of 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 whether courts should apply
veil-piercing standards arising from federal or state common law.
Bestfoods at 63-64. (See Section 3.6.10.C for further discussion of
the liability of parent corporations and corporate individuals.)
Former Owners and Operators of a Facility
CERCLA § 107(a)(2) imposes liability on any person who owned or
operated a facility at the time any hazardous substance was
disposed of there. 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 Section 3004 of the Resource Conservation and
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Recovery Act (RCRA). It has been interpreted by some courts to
include releases 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
CERCLA § 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. The term "generator" is often used interchangeably
with "arranger." Although it is common for arrangers also to be
generators of materials containing hazardous substances,
pollutants, or contaminants, the statute does not use the term
"generator" and its use may be misleading as the Supreme Court
has affirmed that liability is based not on generating such materials
2 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., Carson Harbor 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); United States v. CDMG Realty, 96 F.3d 706
(3rd Cir. 1996); Joslyn Mfg. Co. v. Koppers Co. Inc., 40 F.3d 750 (5th Cir.
1994) (interpreting disposal to require active human conduct); but see
also Nurad, Inc. v. William Hooper & Sons Co., 966 F.2d 837 (4th Cir.
1992) (upholding CERCLA liability for passive migration).
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per se but on arranging for their disposal or treatment. (See
discussion of Burlington Northern & Santa Fe Ry. Co. v. United
States, 129 S.Ct. 1870 (U.S. 2009) below.)
Arrangers may include corporations that entered into disposal
contracts, waste brokers, or corporate officers who are involved in
or responsible for disposal activities. A person may be held liable as
an arranger even if that person did not select the disposal location.
In addition, an arranger's liability may follow its waste from site to
site. For example, if an arranger sends its waste to site A and site
A's operator sends some of that waste to site B, the arranger may
be liable for the cost of cleaning up both site A and site B. To
establish arranger liability, EPA must demonstrate that there was a
release or threatened release of a hazardous substance from a
facility, but does not need to prove that the arranger'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, a
"sham" sale agreement, or a toll-processing agreement where
disposal of hazardous substances is inherent in the work to be
performed under the agreement.
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 one hand, liability will
attach if the "sole purpose" is to discard 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's knowledge of spills alone was insufficient to prove that the
3 Burlington Northern & Santa Fe Ry. Co. v. United States, 129
S.Ct. 1870, 1878 (2009).
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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
Transporters
CERCLA § 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 § 107(a)(4).
1.2.2
Prima Facie Case
• 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 § 107(a).
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:
4Burlington Northern & Santa Fe Ry. Co. v. United States, 129
S.Ct. 1870, 1876 (2009).
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There are several key definitions associated with the elements
listed above:
« "Person" is defined in CERCLA § 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 § 101(22) as "any spilling,
leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, or disposing into the
environm ent."
« "Hazardous substance" is defined in CERCLA § 101(14) as
any substance EPA has designated under specified
provisions of the Clean Air Act, the Clean Water Act (CWA),
the Toxic Substances Control Act (TSCA), and RCRA. (See
Chapter 1 References, p. 41.) EPA also may designate
additional substances as hazardous substances under
CERCLA. EPA maintains and updates a list of CERCLA
hazardous substances in 40 C.F.R. Part 302. (See Chapter 1
References, p. 41.) 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
« "Pollutant or contaminant" is defined in CERCLA § 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.
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.
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• "Facility" is defined in CERCLA § 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 § 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
• the recovery of costs associated with these actions
(including costs incurred by EPA and other entities,
such as the Department of Justice (DOJ), Coast
Guard, and the states).
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• 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.
CERCLA § 104(a)(1) specifically provides for recovery of oversight
costs for PRP-conducted RI/FS work. Response costs do not include
civil penalties for violations of statute, but they do include interest
on past expenditures.6 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 § 113(g)(2) and described in more detail in Section 4.9.
1.2.3 CERCLA § 107(a) imposes strict liability on the four classes of
Strict Liability parties described and listed in Section 1.2.1. 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.
In addition, CERCLA liability is usually joint and several. This
means that any one PRP can be held liable for the entire cost of site
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.
6 Comptroller Policy Announcement 87-17, "Interest Rates for
Debts Recoverable Under the Superfund Amendments and Reauthorization
Act of 1986," September 30, 1986. (See Appendix A.)
1.2.4
Joint and Several
Liability
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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.7 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, the defendant might 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.8 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.'"9
Where hazardous substances are commingled following disposal at
a site, PRPs face a particularly difficult challenge to prove that the
harm is divisible. 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
7 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).
8 Restatement (Second) of Torts § 433B.
9 Burlington Northern, 129 S.Ct. at 1881, citing Restatement
(Second) of Torts § 433A, Comment /.
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to a site caused an environmental harm divisible from other
environmental harm at the site.10
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 carefully reviews 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 as to
why the harm is distinct. A reasonable basis for such
determinations should be well documented. (See PCS Nitrogen Inc.
v. Ashley II of Charleston LLC, 714 F.3d 161 (4th Cir. 2013) 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 PRP may claim a statutory defense to
liability based on CERCLA § 107(b), which provides that a party is
not liable if a release was caused solely by:
• an act of God, as defined in CERCLA § lOl(l)11;
• an act of war12; 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).
10 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").
11 See, e.g., U.S. v. Stringfellow, 661 F. Supp. 1053 (C.D. Cal.
1987) (heavy rainfalls are not the kind of exceptional natural phenomena
to which the narrow act of God defense applies).
12 See, e.g., Cedar & Washington Associates, LLC v. Port Authority
of New York & New Jersey, eta!., 931 F. Supp.2d 496 (S.D. N.Y. 2013)
(the owner of the World Trade Center had an act of war defense to
CERCLA liability for the 9/11 release of contaminated dust).
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Third-Party Defense
In order to establish a third-party defense under § 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 with whom the person has no contractual relationship. In
addition, it must be established that the person exercised due care
with respect to hazardous substances and 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 while
an owner and subsequently transfers the property without
disclosing the release or threatened release. In addition, the person
may not have caused or contributed to the contamination.
CERCLA § 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.
This third-party defense is often referred to as the "innocent
landowner" defense.
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The Small Business Liability Relief and Brownfields Revitalization
Act of 2002 ("Brownfields Amendments") (see Chapter 1
References, p. 41) clarified the "all appropriate inquiries" into the
previous ownership and uses of the property required by the
statute. For purchasers of residential property, CERCLA
§ 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, § 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, § 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,
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.
' ' In addition to the statutory defenses to CERCLA liability, CERCLA
Statutory provides statutory exemptions and protections from liability for
Exemptions and certain parties.
Protections from
CERCLA Liability
13 "Fact Sheet on All Appropriate Inquiries Final Rule," EPA 560-F-
05-240, November 2005. (See Chapter 1 References, p. 41.)
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"De Micromis" Parties
The Brownfields Amendments added CERCLA § 107(0), which
provides a qualified statutory exemption from liability for response
costs for "de micromis" arrangers 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 for discussion of EPA's enforcement discretion policy toward
non-exempt "de micromis" parties.)
Municipal Solid Waste Exemption
CERCLA § 107(p), also added 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:
• 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
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thereof, and is a small business concern from which was
generated all of the MSW attributable to the entity with
respect to the facility; and
• an organization described in § 501(c)(3) of the Internal
Revenue Code (IRC) of 1986 (see Chapter 1 References,
p. 41) and exempt from tax under IRC § 501(a) 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 CERCLA § 107(a)(1) or (2) or as
transporters under CERCLA § 107(a)(4). (See Section 1.2.7 for
discussion of EPA's enforcement discretion policies related to
MSW.)
Contiguous Property Owners
Another liability protection established by the Brownfields
Amendments is CERCLA § 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
• conducts "all appropriate inquiries" prior to purchase and
demonstrates that it did not know or have reason to know of
contamination. (See Section 1.2.5 for discussion of the "all
appropriate inquiries" requirement.)
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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 5, 2004), Chapter 1 References, p. 42 and Section 1.2.7
for discussions 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 § 101(40), such a person now
may become a bona fide prospective purchaser (BFPP).
CERCLA § 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 of a
CERCLA response action. CERCLA § 101(40) defines a BFPP as a
person, or tenant of that person, who acquires ownership of a
facility after January 11, 2002, and:
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• establishes that disposal at the facility occurred prior to
acquisition;
• is not a PRP or affiliated with a PRP;
• made all appropriate inquiries into previous ownership and
uses of the facility in accordance with generally accepted
practices and new standards contained in CERCLA
§ 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 (CPO) provisions is that
the BFPP can purchase with knowledge of the contamination and
still have CERCLA liability protection. CERCLA § 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 Section 1.2.7 for discussion of
EPA's enforcement discretion policies toward prospective
purchasers.)
Scrap Recyclers
CERCLA § 127 exempts from the arranger and transporter liability
provisions of CERCLA certain arrangers and transporters who
"arranged for recycling of recyclable materials." Owners and
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operators of sites are ineligible for the exemption, as are arrangers
and transporters of non-recyclable materials or arrangers 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 that a party is eligible for
the exemption absent either a demonstration of proof by the party
that it was recycling consistent with CERCLA § 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 batteries, spent nickel-cadmium
batteries, and other spent batteries. (See CERCLA § 127 for more
detail on SREA.)
Secured Creditors
CERCLA § 101(20)(A) and (E) exempt from owner/operator liability
any person who, without participating in the management of a
facility, holds indicia of ownership primarily to protect the person's
security interest in the facility. Holding a security interest means
having a legal claim of ownership in order to secure a loan,
equipment, or other debt. This exemption protects from CERCLA
§ 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.
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Under CERCLA § 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
participation in management as defined in CERCLA § 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 § 107(d)(1) or
under the direction of an on-scene coordinator (OSC);
• providing financial or advisory support of an effort to
prevent or cure default; or
• restructuring or renegotiating the terms of the security
interest.
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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 § 107(d)(1) 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 § 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 § 107(n), fiduciary liability under any provision of
CERCLA cannot exceed the assets held in the fiduciary capacity. In
addition, a fiduciary will not be liable in its personal capacity for
certain actions, such as:
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• 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 § 114(c) for
an exemption from liability as an arranger or transporter of
hazardous substances under CERCLA § 107(a)(3) or (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. 42.) A
service station dealer still may be held liable under CERCLA
§ 107(a)(1) and (2) as an owner or operator. Moreover, this
exemption does not affect potential liability under the underground
storage tank program.
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State and Local Governments
CERCLA § 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
§ 107(d)(1), a person rendering care or assistance in accordance
with the NCP, 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. Liability for costs or damages may
result from such a person's negligence.
CERCLA § 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 § 107(b)(3) as discussed in Section 1.2.5.
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.
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Federally Permitted Releases
CERCLA § 107(j) excludes from CERCLA liability response costs
resulting from a "federally permitted release." CERCLA § 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 CWA). Although it
has full authority under CERCLA to respond to federally permitted
releases, EPA must pursue recovery of response costs under the
statute governing the permit.
Application of a Registered Pesticide
CERCLA § 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. 42.)
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 § 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 DOJ jointly issued "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. 42.) As discussed above,
CERCLA § 107(o) provides a statutory exemption for certain "de
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micromis" parties. This settlement policy 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 utilized its MSW policies
to inform decisions related to MSW parties and owners/operators of
co-disposal sites. In 1989, EPA issued the "Interim Policy on
CERCLA Settlements Involving Municipalities or Municipal Wastes"
(December 6, 1989) ("1989 MSW Policy"). (See Chapter 1
References, p. 42.) The 1989 MSW Policy sets forth the criteria by
which EPA generally determines whether to exercise enforcement
discretion to pursue MSW arrangers or transporters as PRPs under
CERCLA. The 1989 MSW Policy provides that EPA generally will not
identify an arranger 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 the "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. 42.) The 1998 MSW Policy states that
EPA will continue its policy of generally not identifying arrangers
and transporters of MSW as PRPs at NPL sites.
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In an effort to reduce contribution litigation by third parties, the
1998 MSW Policy also identifies a methodology for settlements with
arrangers and 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 § 107(p), EPA
and DOJ jointly issued the "Interim Guidance on the Municipal Solid
Waste Exemption Under CERCLA § 107(p)" (August 20,
2003) ("2003 Interim Guidance"). (See Chapter 1 References,
p. 42.) 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 the "Policy Towards Owners of Property
Containing Contaminated Aquifers" (May 24, 1995). (See Chapter 1
References, p. 42.) Although the 1995 policy is similar to the
exemption in favor of contiguous property owners (CPOs) in
CERCLA § 107(q), in some ways the 1995 policy is broader, and
may apply to parties that do not qualify for the CERCLA § 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:
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• 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
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 landowners liability for
the contaminated aquifer, such as liability as an arranger or
transporter under CERCLA § 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, 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
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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 guidance describes
when, primarily because of significant public benefit, EPA may
consider providing a prospective purchaser with a covenant not to
sue. (See "Bona Fide Prospective Purchasers and the New
Amendments" (May 31, 2002), Chapter 1 References, p. 43.)
On July 16, 2003, EPA and DOJ issued the joint "Interim
Enforcement Discretion Policy Concerning "Windfall Liens" Under
§ 107(r) of CERCLA." The "windfall lien" policy explains when EPA
generally will, and will not, seek compensation for increasing a
property's market value through a Superfund response action.
Under § 107(r), BFPPs are not liable as owner/operators for
CERCLA response costs. While a BFPP may not be liable, the
property acquired may be subject to a windfall lien if an EPA
response action has increased its fair market value. 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. 43, for the policy, related attachments and
frequently asked questions, and "Windfall Lien Administrative
Procedures" (January 8, 2008).)
CERCLA § 101(40) defines a BFPP as "a person (or a tenant of a
person) that acquires ownership of a facility" after January 11,
2002 and satisfies the other BFPP requirements. In other words, a
tenant may derive BFPP status from an owner who satisfies the
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BFPP criteria. EPA may exercise its enforcement discretion in favor
of tenants who leased contaminated or formerly contaminated
property. In such cases, EPA will treat tenants as having acquired
ownership if their lease agreements were executed after January
11, 2002 and the tenant meets the BFPP provisions in CERCLA
§§ 101(40) and 107(r). The guidance was developed as part of
EPA's RE-Powering America's Land Initiative to encourage lessees
of contaminated properties to reuse them for renewable energy
development, but it applies across all industries. (See "Revised
Enforcement Guidance Regarding the Treatment of Tenants Under
the CERCLA Bona Fide Prospective Purchaser Provision" and Model
Comfort/Status Letters for Lessees of Renewable Energy Projects
(December 5, 2012), Chapter 1 References, p. 43.)
Non-Affiliation
CERCLA imposes a "non-affiliation" requirement on persons seeking
protection from liability as BFPPs or CPOs under CERCLA
§§ 101(40)(H) or 107(q)(l)(A), respectively. In either case, the
person seeking liability protection may not be "affiliated with any
other person that is potentially liable" for response costs at the
facility through direct or indirect familial relationship; contractual,
corporate, or financial relationship; or as the result of
reorganization of a potentially responsible business entity.
Recognizing the "uncertainty regarding the potential liability of
certain parties" under these provisions, EPA issued "Enforcement
Discretion Guidance Regarding the Affiliation Language of CERCLA's
Bona Fide Prospective Purchaser and Contiguous Property Owner
Liability Protections" (September 21, 2011) (see Chapter 1
References, p. 43.) for applying the non-affiliation criteria in favor
of persons who satisfy the other requirements of the BFPP or CPO
provisions except the requirement prohibiting parties from being
"affiliated with any other person that is potentially liable."
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Residential Homeowners
In 1991, EPA issued its "Policy Towards Owners of Residential
Property at Superfund Sites" (July 3, 1991). (See Chapter 1
References, p. 43.) 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
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") who are willing to voluntarily clean up some of
these sites. Concerns about incurring potential liability under
CERCLA and the 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. (See "Interim Guiding Principles for Good
Samaritan Projects at Orphan Mine Sits and Transmittal of CERCLA
Administrative Tools for Good Samaritans" (June 6, 2007), Chapter
1 References, p. 43.)
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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
(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; SNLfor 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/CERCLA § 104(e) letter; and combined GNL/demand
letter.
1.3.1
General Notice
Letters
A GNL is a notice that informs PRPs of their potential liability for
past and future response costs. GNLs generally contain the
following information:
• notification of potential liability under CERCLA §§ 106 and
107(a), including notification that:
• CERCLA § 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 § 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;
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• 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;
• 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,
• the name and phone number of the EPA contact for
PRPs or their attorneys,
• information about development of the AR pursuant
to the NCP, and
• a demand for reimbursement of EPA costs.
GNLs 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 § 104(e) information requests, and, ultimately,
more productive negotiations with PRPs for performance of the
work under a settlement agreement.
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1.3.2
Special
Notice Letters
The SNL, authorized under CERCLA § 122(e)(1), is a written notice
to PRPs that triggers an enforcement moratorium — a period in
which EPA postpones Fund-lead response actions and withholds
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 § 122(e) 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. 44) and, if so, the maximum
amount appropriate for compensation.
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EPA may, in 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, § 122 does not require
EPA to follow special notice procedures when conducting them,
but a decision to follow special notice procedures does not
preclude EPA from taking emergency or time-critical removal
action, if necessary. Although it is common practice to issue
SNLs to all PRPs at a site, EPA is not required to do so. If the
Agency decides not to issue SNLs to all PRPs, it will send a
letter to PRPs whom it is not inviting into negotiations to
explain why they are not being included. For procedures
applicable to removals, refer to the "Superfund Removal
Procedures Removal Enforcement Guidance for On-Scene
Coordinators" (April 1992). This volume is one of a ten-volume
series of removal guidance documents collectively titled
Superfund Removal Procedures. (See Chapter 1 References,
p. 44.)
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 a
removal, RI/FS, or RD, EPA usually requests that the PRPs enter
into an administrative settlement agreement and order on
consent (ASAOC). An ASAOC is a legally binding administrative
settlement and order that EPA and the PRPs agree to and sign.
A consent decree (CD) is required for an RA; it is similar to an
ASAOC in that negotiations are bilateral. A CD, however, is a
judicial action that must be approved by DOJ and a federal
judge before it becomes final. It is generally filed in federal
court with or shortly after a complaint. Approval by DOJ is also
required for an ASAOC under CERCLA § 122(h) if total site
response costs exceed $500,000.
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These settlement documents are discussed in more detail in the
"Addendum to the Interim CERCLA Settlement Policy." (See
Chapter 1 References, p. 44.)
EPA maintains an online collection of sample notice and demand
letters and model settlement documents, including GNLs, SNLs,
ASAOCs, and CDs, in its Cleanup Enforcement Model Language and
Sample Documents database (see Chapter 1 References, p. 44).
The database makes sample and model documents available for
downloading in Word format and provides links to relevant policy
and guidance documents on their appropriate use.
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.
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Chapter 1 References
Name
Section
Location
Comprehensive Environmental
Response, Compensation, and
Liability Act of 1980, as
amended by the Superfund
Amendments and
Reauthorization Act of 1986,
42 U.S.C. § 9601 et seq.
1.1
https://www.epa.aov/laws-
reaulations/summarv-comDrehensive-
environmental-resDonse-comDensation-
and-liabilitv-act
National Oil and Hazardous
Substances Pollution
Contingency Plan
1.1.1
httDS: //www.a Do.aov/fdsvs/Dka /CFR-2011-
title40-vol28/Ddf/CFR-2011-title40-vol28-
part300.pdf
Oil Pollution Act of 1990
1.1.1
httDS://www.eDa.aov/laws-
reaulations/summarv-oil-Dollution-act
Enforcement First for
Remedial Action at Superfund
Sites (September 20, 2002)
1.1.2
https://www.epa.aov/enforcement/auidanc
e-e nforcement-fi rst-remedial-act ion-
suDerfund-sites
Enforcement First at
Superfund Sites: Negotiation
and Enforcement Strategies
for Remedial
Investigation/Feasibility
Studies (RI/FSs) (August 9,
2005)
1.1.2
httDs://www. eDa.aov/enforcement/au id anc
e-e nforcement-fi rst-su Derfu nd -sites-
nea ot iat ion-and-enforcement-st rateaies-r if s
Enforcement First to Ensure
Effective Institutional Controls
at Superfund Sites (March 17,
2006)
1.1.2
httDs://www. eDa.aov/enforcement/au id anc
e-e nforcement-fi rst- pol icv-su perfu nd -
institutional-controls
Enforcement First for Removal
Actions (August 4, 2011)
1.1.2
httDs://www. eDa.aov/enforcement/au id anc
e-e nforcement-fi rst-removal-act ions
Promoting Enforcement First
for Remedial
Investigation/Feasibility
Studies at Superfund Sites
(March 20, 2012)
1.1.2
httDs://www. eDa.aov/enforcement/au id anc
e-Dromotina-enforcement-fi rst-rifs-
su perfu nd-sites
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Chapter 1 References
Name
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)
1.1.3
https://www.epa.aov/enforcement/auidanc
e-abilitv-Dav-and-de-minimis-revisions-
cercla-sect ion- 122a -2002- brownfield
Clean Air Act
1.2.2
42 U.S.C. § 7401 et seq.
httDs://www.eDa.aov/laws-
reaulations/summarv-clean-air-act
Clean Water Act
1.2.2
33 U.S.C. § 1251 et seq.
https://www.epa.aov/laws-
reaulations/summarv-clean-water-act
Toxic Substances Control Act
1.2.2
15 U.S.C. § 2601 et seq.
httDs://www.eDa.aov/laws-
reaulations/summarv- toxic-substances-
control-act
Resource Conservation and
Recovery Act
1.2.2
42 U.S.C. § 6901 et seq.
httDS://www.eDa.aov/eDawaste/index, htm
CERCLA Hazardous
Substances
1.2.2
40 C.F.R. Part 302
httDS://www.eDa.aov/laws-
reaulations/reaulations
Small Business Liability Relief
and Brownfields Revitalization
Act of 2002
1.2.5
httDs://www. eDa.aov/brownfields/brownfiel
ds-laws-and-reaulations
Standards and Practices for All
Appropriate Inquiries, 40
C.F.R. Part 312 (November 1,
2005)
1.2.5
https://www.epa.aov/brownfields/brownfiel
ds-all-aDDroDriate-inauiries
Fact Sheet on All Appropriate
Inquiries Final Rule (October
2005)
1.2.5
https://www.epa.aov/brownfields/brownfiel
d s-a 11 -a DDroDriate- i na u i ries-f i na 1 - ru le-
october-2005
Internal Revenue Code of
1986
1.2.6
26 U.S.C.
http://uscode.house.aov/view.xhtml?path=
/Drelim@title26&edition=Drelim
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Chapter 1 References
Name
Section
Location
Contiguous Property Owner
Guidance Reference Sheet
(February 5, 2004)
1.2.6
https://www.epa.aov/enforcement/interim-
auidance-enforcement-discretion-
reaardina-contiauous-DroDertv-owners
Superfund Recycling Equity
Act (CERCLA § 127)
1.2.6
42 U.S.C. § 9627
httDs://www.eDa.aov/laws-
reaulations/summarv-comDrehensive-
environmental-response-compensation-
and-liability-act
Standards for the
Management of Used Oil
1.2.6
40 C.F.R. Part 279
http://www.access.apo.aov/nara/cfr/waisid
x 08/40cfr279 08.html
Federal Insecticide, Fungicide,
and Rodenticide Act
1.2.6
7 U.S.C. § 136 et seq.
httDs://www.eDa.aov/laws-
rea u lat ions/sum ma rv-fed era l-in sect icide-
and-rodenticide-act
Revised Settlement Policy and
Contribution Waiver Language
Reg a rd i ng Exem pt " De
micromis"and Non-Exempt
"De micromis" Parties
(November 6, 2002)
1.2.7
httDs://www.eDa.aov/enforcement/auidanc
e-settlement-Dolicv-contribution-waiver-
la na u aa e-rea a rdina-de-micromis-parties
Interim Policy on CERCLA
Settlements Involving
Municipalities or Municipal
Wastes (December 6, 1989)
1.2.7
httDs://www.eDa.aov/enforcement/auidanc
e-interim-municiDal-settlement-Dolicv
Policy for Municipality and
Municipal Solid Waste CERCLA
Settlements at NPL Co-
Disposal Sites (February 5,
1998)
1.2.7
httDs://www.eDa.aov/enforcement/auidanc
e-policv-municipalitv-and-msw-cercla-
settlements-nDl-co-disDosal-sites
Interim Guidance on the
Municipal Solid Waste
Exemption Under CERCLA
§ 107(p) (August 20, 2003)
1.2.7
httDs://www.eDa.aov/enforcement/auidanc
e-policv-municipalitv-and-msw-cercla-
settlements-nDl-co-disDosal-sites
Policy Toward Owners of
Property Containing
Contaminated Aquifers
(May 24, 1995)
1.2.7
httDs://www.eDa.aov/enforcement/auidanc
e-owners-propertv-containina-
contam i nated -aa u ifers
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Chapter 1 References
Name
Section
Location
Bona Fide Prospective
Purchasers and the New
Amendments
(May 31, 2002)
1.2.7
httDs://www.eDa.aov/enforcement/auidanc
e-bfpps-and-new-amendments-cercla
Interim Enforcement
Discretion Policy Concerning
"Windfall Liens" Under
§ 107(r) of CERCLA (July 16,
2003)
1.2.7
httDs://www.eDa.aov/enforcement/interim-
auidance-enforcement-discretion-
concernina-windfall-liens-cercla-section-
107r
Windfall Lien Administrative
Procedures (January 8, 2008)
1.2.7
httDs://www.eDa.aov/enforcement/auidanc
e-windfall-lien-ad ministrative-procedures-
107r-lien-and-model-letter-Drovidina
Transmittal of "Revised
Enforcement Guidance
Regarding the Treatment of
Tenants Under the CERCLA
Bona Fide Prospective
Purchaser Provision" and
Model Comfort/Status Letters
for Lessees at Renewable
Energy Projects (December 5,
2012)
1.2.7
httDs://www.eDa.aov/enforcement/auidanc
e-treatment-tenants-under-cerclas-bona-
fide-DrosDective-Durchaser-bfDD-Drovision
Enforcement Discretion
Guidance Regarding the
Affiliation Language of
CERCLA's Bona Fide
Prospective Purchaser and
Contiguous Property Owner
Liability Protections
(September 21, 2011)
1.2.7
httDs://www.eDa.aov/enforcement/auidanc
e-affi Nation-la nauaae-cerclas-bfpp-and-
CDO-liabilitv-Drotections
Policy Towards Owners of
Residential Property at
Superfund Sites
(July 3, 1991)
1.2.7
httDs://www.eDa.aov/enforcement/auidanc
e-owners-residential-DroDertv-suDerfund-
sites
Interim Guiding Principles for
Good Samaritan Projects at
Orphan Mine Sites and
Transmittal of CERCLA
Administrative Tools for Good
Samaritans (June 6, 2007)
1.2.7
https://www.epa.aov/enforcement/interim-
auidance-cercla-administrative-tools-aood-
samaritans-orDhan-mine-sites
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Chapter 1 References
Name
Section
Location
Orphan Share Policy
(June 3, 1996)
1.3.2
httDs://www.eDa.aov/enforcement/auidanc
e-omhan-share-comDensation-rdra-and-
non-time-critical-removal-settlors
Superfund Removal
Procedures -
Removal Enforcement
Guidance for On-Scene
Coordinators (April 1992)
1.3.2
httDs://ntrl.ntis.aov/NTRL
Addendum to the Interim
CERCLA Settlement Policy
Issued on December 5, 1984
(September 30, 1997)
1.3.3
https://www.epa.aov/enforcement/auidanc
e-cercla-settlement-Dolicv-interim
Cleanup Enforcement Model
Language and Sample
Documents
1.3.3
https://cfpub.epa.aov/compliance/models
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2.0 PRP Search Overview 45
2.1 Roles and Responsibilities 46
2.1.1 PRP Search Team 48
2.1.2 Opportunities for PRP Input 56
2.2 PRP Search Plan 61
2.2.1 Timing and Duration 63
2.2.2 Streamlining Considerations 73
2.3 Information Disclosure Issues 75
2.3.1 Release of Information 75
2.3.2 Handling Sensitive Records 75
2.3.2.1 Confidential Business Information 76
2.3.2.2 Enforcement-Confidential/Enforcement-Sensitive 76
2.3.2.3 information Requested Pursuant to FOIA 77
2.4 Document Management 84
2.4.1 Superfund Enterprise Management System 85
References 87
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IIAZAIlDOliS IV
2.0 PRP Search Overview
The primary purpose of the potentially responsible party (PRP)
search is to identify parties who may be liable under the
Comprehensive Environmental Response, Compensation, and
Liability Act (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 maximizing PRP involvement in
conducting response activities. Moreover, information obtained in
the course of PRP searches serves a variety of other purposes in
the site response process. These include:
• finding out from whom to obtain site access;1
• facilitating site characterization by providing information on
hazardous substances, site boundaries, disposal practices,
and promising locations for RI/FS sampling activities;
• saving time and money associated with performing required
National Historic Preservation Act evaluations. (See Chapter
2 References, p. 87);
• identifying individuals for organizations that may have
historical information or historical knowledge of site
activities;
• assessing potential applicable or relevant and appropriate
requirements (ARARs) (See Chapter 2 References, p. 87.);
• developing waste-in lists and volumetric rankings; and
• assessing settlement prospects and litigation risks.
1 "Clarification of CERCLA Entry Policy" (March 3, 2010); "Entry
and Continued Access Under CERCLA" (June 5, 1987) (See Chapter 2
References, p. 87.)
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Exhibit 1 presents a typical FRP search, but the process is not lineal
and there will be many times when tasks are not performed in the
crder presented. For example, removal GNLs may be issued after
the preliminary stages of the search due to time constraints.
Likewise, remedial GNLs may be issued on a "rolling" basis if the
site is large and a party has been thcrcughly reviewed.
Achieving the Agency's goals of accelerating cleanups, maximizing
FRP involvement in response actions, and reaching fair settlements
with PRPs requires careful and coordinated planning of the PRP
search. Planning involves identifying key personnel involved in the
FRP search, outlining their rdes 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.
2b-| Management Team
Roles and jn some regions, this strategy has been facilitated by a standing
Responsibilities management team of regional EPA decision makers. The purpose of
such a team is to ensure appropriate and effective coordinaticn,
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 pricrities 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
O
The National Prioritization Panel also will consider PRP search
information when prioritizing sites proposed for Fund-financed remedial
action.
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Exhibit 1. Overview of Typical PRP Search Process
Share tactual, Non-Enforcement-Sensitive Information with PRPs as Appropriate
{e.g., Site Chronology and Property History, PRP Names, Waste-in Information)
Management Review and Issue General Notice Letters
Site
Preliminary
PRP Search
Initial
Baseline
Search Tasks
Discovery
Search
Plan
Letters/
Interviews
Compile, Organize
& Analyze
Responses
Follow-up
Baseline
Report
104(e) Follow-up/Compel
Compliance with 104(e)
Requests as Necessary and
Appropriate
Specialized
Tasks
Follow- up
Interim-Final
Report
Follow-up
Update
Report*
Issue General Notice Letters
Management Review and Issue Special Notice Letters **
Ongoing Review and Quality Assurance
* Completed at least 90 days prior to issuance of RD/RA Special Notice Letters.
** Timing of special notice is generally dictated hy response planning. The baseline phase of the PRP search
should he essentially complete for the purpose of RI/FS Special Notice at least 90 days before the planned
RI/FS start date. Improved evidence on liability and ability to pay will be collected during the RI/FS and follow-
up phase, if necessary. Collection of such improved evidence will be completed, reviewed, and updated, if
necessary, prior to issuance of RD/RA Special Notice Letters.
NOTE: This exhibit presents an
overview of a typical PRP search. It is
not intended as a prescribed process
for every search. The appropriate
process for a particular search is a
matter for the professional judgment of
the PRP search team.
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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.
2.1.1 Each EPA region has its own unique organizational structure and
procedures for performing PRP searches, and the titles of persons
PRP Search K K y K
performing search tasks vary from region to region. Search and
"*"eam 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. Moreover, specialization varies
from region to region. In some, persons with these titles devote all
their time to PRP searches, while in others they may be involved in
additional and different phases of the enforcement process. As
some general descriptions of key roles and responsibilities may cut
across regional variations, duties frequently associated with certain
job titles are presented below. For simplicity's sake, however,
persons performing PRP search-related tasks are thereafter referred
to as "PRP search personnel."
PRP Search Manager
The PRP search manager has the lead for overseeing each site-
specific PRP search. The search manager is responsible for selecting
an appropriate combination of the search personnel to ensure an
effective team to perform the following tasks as necessary and
appropriate:
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• 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 draft, interim, and final contractor deliverables;
• introduce the contractor to state and local government
contacts, as needed;
• issue information request letters, GNLs, and SNLs;
• 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 SNLs;
• perform ATP analysis (see discussion of ATP determinations
in Section 4.5);
• gather adequate evidence of PRP liability and ability to pay;
• obtain site costs as appropriate for potential cost recovery;
and
• give PRPs an opportunity to provide input into the Agency's
PRP search efforts.
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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) may 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 § 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
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 from the investigation.
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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 PRP searches, or assist other Agency
personnel performing or overseeing the searches. RPMs are
responsible for overseeing most of the settlement and UAO
obligations (e.g., deliverables on remedy design and
implementation) 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 ASAOC 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, RPMs should
familiarize themselves with Agency policies and procedures for
completing thorough PRP searches whether or not they are
involved in performing one.
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 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
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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 a search. (See
Section 2.2.1 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 § 104(e) information requests and review
and summarize PRP responses to those requests.
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. (See
discussion of these and other liability theories in Section 3.6.10.)
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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 the
scope of the search is appropriate and information collected meets
evidentiary standards. It is very important to obtain attorney input
regarding title searches, interviews, and questions relating to the
definition of the site, classification of PRPs {e.g., "de micromis",
insolvent), and sufficiency of evidence. As most PRPs retain legal
counsel to represent them throughout performance of the response
action, it is important that the case attorney, at a minimum, be
involved in identification of critical PRP search planning and
implementation milestones. EPA attorneys play a major role in all
phases of the Superfund process, from site discovery through
cleanup and post-construction activities, in addition to preparing
litigation referrals to and serving as EPA's main contact with DOJ.
They sometimes also play the primary role in overseeing certain
obligations (e.g., filing of deed restrictions) required of PRPs at
enforcement-lead sites.
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 B for a sample "Performance Work Statement for
Enforcement Support Services," including PRP search support.)
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Contractors may not perform inherently governmental functions.
Prohibited activities include making legal or liability determinations
and approving and signing CERCLA § 104(e) information request
letters. Contractors may, however, draft and mail § 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
ATP 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, and sometimes play the primary role in
overseeing certain obligations {e.g., filing of financial assurance)
required of PRPs at enforcement-lead sites.
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. 87.) 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
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References, p. 87.) The Act specifies that individuals age 55 and
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
investigative 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 investigative 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 § 104(e) letters or
other EPA correspondence.
Community Involvement
The PRP search team should consider establishing
communication with the community involvement coordinator
(CIC) early in the search process as community involvement
activities may produce many benefits, including information on
additional PRPs. People living in areas adjacent to Superfund
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sites often include long-time residents who may have specific
knowledge of the site and may be willing to share their
information. Local communities should routinely be considered
potential sources of information.
2.1.2
Opportunities for
PRP Input
» GH\-
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 an
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 § 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 will
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:
3 Planning of response and enforcement actions should allow
sufficient time for EPA to issue follow-up CERCLA § 104(e) information
request letters to newly identified parties.
4 Model CERCLA § 104(e) letters include questions seeking
information from PRPs about other PRPs. (See "Transmittal of Sample
Documents for More Effective Communication in CERCLA § 104(e)(2)
Information Requests" (June 30, 1995), Chapter 2 References, p. 87, for
sample information request letter questions.)
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• whether the PRPs have the ability to provide needed
information;
• 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.
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• The PRPs should be in compliance with any CERCLA
§ 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.
• Do not share with the PRPs any confidential business
information (CBI), trade secrets, personally identifiable
information (PII), any other information withholdable under
the Freedom of Information Act (FOIA), 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 in order 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 AR or for use as evidence in federal
court.
5 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.
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• 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
claimed as CBI or PII. FOIA-withholdable information may
not be shared with PRPs except pursuant to a confidentiality
agreement with PRPs who are co-litigating partners with
EPA. (See Section 2.3 for discussion of information
disclosure issues.)
• 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
6 EPA personnel are required to document in an enforcement-
confidential memorandum their decisions either to exclude certain PRPs
from any issued CERCLA § 106 unilateral administrative orders (UAOs) or
not to issue § 106 UAOs to late-identified PRPs. (See "Documentation of
Reason(s) for Not Issuing CERCLA §106 UAOs to All Identified PRPs"
(August 2, 1996), Chapter 2 References, p. 87.)
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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;7
• funding neutral alternative dispute resolution (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.
7 EPA may choose to re-interview witnesses originally interviewed
by other PRPs and obtain its own affidavits or witness statements.
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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 PRP search team — is responsible for performing the
primary search functions and bringing the search to a successful
conclusion. The Agency's prerogatives include:
• determining the timing and extent of the PRP search;
• deciding which parties should receive CERCLA § 104(e)
information request or notice letters;8
• evaluating information developed in the course of the
search; and
• deciding which parties to name as PRPs.
2.2
PRP Search
Plan
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.
8 EPA notifies small businesses of their right under the Small
Business Regulatory Enforcement Fairness Act to comment on regulatory
enforcement activities when the Agency makes its initial enforcement
contact with the business. In the CERCLA context, this initial enforcement
contact is typically the GNL or SNL accompanied by the Small Business
Information Sheet. (See Chapter 2 References, p. 87.)
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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 C for a fillable PDF 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 the RPM, OSC, case attorney, and all other
PRP search personnel working on the site in 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 arrangers,
• PRPs that may qualify for an exemption,
• area-wide ground water contamination or surface
water contamination where sources are not apparent,
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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,
• 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
7.
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. Search activities may
be initiated during a removal response or during the 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 D provides a checklist
for removal and pre-remedial sites that was developed to assist
early on-site res ponders {e.g., OSCs, PRP search personnel) in
documenting valuable information on PRPs and site conditions.
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To avoid duplication of these tasks, early on-site responders may
fill out the checklist as completely as possible, forward a copy to
regional PRP search personnel conducting the 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, additional search tasks may be undertaken. In practice,
depending on resources and the urgency of site response actions,
there may or may not be a break between phases of the 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 archives, 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.
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Exhibit 2. Typical PRP Search Process Flow Chart
o
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 WORK ASSIGNMENT KICK-OFF MEETING WITH CONTRACTOR
• REVIEW, REVISE, AND APPROVE WORK PLAN
• COLLECT FEDERAL, STATE, LOCAL, OWNER/OPERATOR/ARRANGER/TRANSPORTER, AND OTHER NON-GOV'T RECORDS
• CONDUCT INTERNET AND SUBSCRIPTION DATABASE RESEARCH
• OBTAIN AND ANALYZE HISTORICAL SERIAL PHOTOS
• PREPARE LIST OF POTENTIAL INTERVIEWEES
• DEVELOP AND REVIEW INTERVIEW QUESTIONS
• CONDUCT FIRST-ROUND INTERVIEWS; GOV'T OFFICIALS AND PRIVATE PARTIES, IF POSSIBLE)
• PERFORM TITLE SEARCH
• ACCESS SEMS FOR EXISTING PRP INFORMATION
• UPDATE PRP NAMES AND MAILING ADDRESSES
• CONDUCT CORPORATE SUCCESSORSHIP RESEARCH
• PREPARE LIST OF 104(e) LETTER RECIPIENTS
• DEVELOP AND REVIEW 104(e) LETTER QUESTIONS/ASK FOR INFORMATION ABOUT OTHER PARTIES
• ISSUE FIRST-ROUND 104(e) LETTERS
•SET UP CORRESPONDENCE TRACKING SYSTEM
• REVIEW FIRST-ROUND 104(e) LETTER RESPONSES
• DEVELOP ADDITIONAL PRP NAMES AND MAILING ADDRESSES
• 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
BASELINE REPORT PHASE
FOLLOW-UP PHASE
LEGEND
• SUGGESTED STARTING
POINT
» UPDATE PRP SEARCH STRATEGY
» MEET WITH CONTRACTOR (IF APPLICABLE) TO DISCUSS FOLLOW-UP TASKS
• IMPLEMENT BASELINE REPORT RECOMMENDATONS
• PREAPRE LIST OF SECOND-ROUND INTERVIEWEES
• DEVELOP AND REVIEW SECOND-ROUND INTERVIEW QUESTIONS
• CONDUCT SECOND-ROUND INTERVEIWS
• 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
OFPRPS
PREPARE INTERIM-FINAL PRP SEARCH REPORT *
ISSUE GENERAL NOTICE LETTERS Q
ISSUE SPECIAL NOTICE LETTERS g
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.
07/06/09
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In conducting the PRP search, regions should consider which of the
tasks outlined below are cost-effective and reasonable relative to
anticipated overall cleanup costs at the site.9 (The Superfund
Program Implementation Manual (SPIM) indicates that Task 1 is
mandatory, but this is so only for purposes of getting credit for a
"PRP Search Completion" as defined by SPIM's tracking guidelines.)
Regions should document in the site file that they have taken all
reasonable, achievable steps to identify PRPs. Ideally, those steps
should be taken prior to initiation of cleanup negotiations, but 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.
2. All relevant and material leads from CERCLA § 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. GNLs have been issued to all PRPs being pursued.
9 Superfund Program Implementation Manual (SPIM) Fiscal Year
2017, Chapter X.A.7.b, pp. X-6-7, September 30, 2016. (See Chapter 2
References, p. 87.)
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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 important.
A PRP search should be part of the removal site evaluation
conducted by the OSC. An important reason for initiating a PRP
search during the removal site evaluation is to identify and locate
the property(s) and owner(s) in order to obtain access. To the
extent 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 appropriation, additional search
activities 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 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.
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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 in
which 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 ASAOC process before the
removal begins. Such activities may include notifying PRPs orally of
their potential liability after consulting the ORC, and following up
with a notice letter as soon as possible after the oral 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 B.)
Once the site is stabilized, a second, more extensive phase of PRP
identification can 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
§ 104(e) information requests that include questions pertaining to
arrangers, transporters, and financial viability may be used to
obtain additional evidence.
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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.
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, arranger
information, business records (business partners, financial
status), payroll records (former employees who may have
information about arrangers, operators, or on-site waste
disposal);
• issuing CERCLA § 104(e) letters; and
• conducting title searches.
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Other considerations applicable to all removal searches include:
• 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 case attorney should be advised promptly if criminal
activity is suspected.
Agency guidance requires regions to consult with the Office of Site
Remediation Enforcement (OSRE) when contemplating Fund-
financed removal actions that exceed the $2 million limit set by
CERCLA § 104(c)(1). The region is expected to submit a
consultation package that includes an enforcement addendum to
the removal action memorandum setting forth information on the
status of the PRP search. The addendum should include, but not
necessarily be limited to, information on the PRP search, efforts to
contact viable PRPs, the rationale for using Fund monies in lieu of
PRP resources, and whether additional PRP search work or contact
with any known PRPs is appropriate at the site. (See "Timing and
Procedures for Review of Certain Time-Critical Removal Actions by
EPA Headquarters Offices" (February 26, 2013) and "Checklist of
Information to Include for Consultation on Time-Critical Removal
Actions by the Office of Site Remediation Enforcement" (July 8,
2015), Chapter 2 References, pp. 87-88.)
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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 quality for
listing on the NPL and that a long-term response is appropriate.
Remedial sites are those that would score 28.5 under the hazard
ranking system (HRS) or otherwise satisfy 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 are 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, I.e., before issuance of the record of decision (ROD);
• identify the insolvent and detunct 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
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• 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 follow-up 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-arranger 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 ideally should be completed for specific
parcels of land that identifies the owner/operator 90 days before
the start of the RI/FS, and the interim-final PRP search report
ideally should be completed at least 90 days prior to issuing RD/RA
SNLs.
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Adhering to these schedules may be problematic or impractical for
ground water and sediment sites as RI/FS sampling data may be
necessary for PRP identification. (See Section 3.10 for detailed
discussion of the baseline PRP search report.)
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, case teams10 should
carefully consider their available options in the context of ongoing
litigation.
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;
10 The case team generally includes the search team. Although
there is often considerable overlap between members of each, the case
team's responsibilities include negotiation, settlement, litigation, and
enforcement in addition to PRP search activities.
2.2.2
Streamlining
Considerations
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• 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
basis. (See Tasks 1 and 2 of the "Performance Work Statement for
Enforcement Support Services" in Appendix B.) Consult your
region's CO or 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.
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2.3
Information
Disclosure
Issues
An early on-site responder's checklist (Appendix D) is another
useful tool for streamlining the process and reducing duplication of
activities.
The Agency adheres to EPA guidelines and 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" issued
by the Agency's Chief Information Officer (September 14, 2015),
Chapter 2 References, p. 88.)
2.3.1
Release of
Information
Information may be released through direct contact with PRPs, in
conjunction with issuance of GNLs or SNLs, 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.
2.3.2
Handling
Sensitive
Records
Information release also may occur when the region invokes special
notice procedures under § 122(e)(1) of CERCLA. When invoking
these 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." Contact information
{e.g., addresses) of individuals may not be released in an SNL,
however, as it is exempt from disclosure as PII. Documents may
include manifests, logbooks, waste tickets, receipts, and CERCLA
§ 104(e) responses.
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2.3.2.1
Confidential
Business
Information
Confidential business information (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 in, for example, 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 § 104(e). EPA does not have to decide whether the
information is CBI unless someone requests its release, but EPA
maintains 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. 88, for information on EPA
procedures for making CBI determinations.)
2.3.2.2
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
(see Section 2.3.2.3) to ensure that the designation remains
appropriate. For FOIA purposes, the record would be analyzed
under Exemption 7(A). Exemption 7(A) protects records or
information compiled for law enforcement purposes but only to the
extent that production of such law enforcement records could
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reasonably be expected to interfere with or harm EPA's
enforcement proceedings. The harm cannot be speculative or an
abstract fear. You will need to point to a specific pending or
contemplated proceeding that could be harmed by disclosure (i.e.,
release would hinder the Agency's ability to control or shape
investigations, would enable targets to elude detection or suppress
or fabricate evidence, or would prematurely reveal the Agency's
enforcement strategy). The exemption may only be invoked as long
as the law enforcement proceeding involved remains pending. (See
Section 3.3.3 for further discussion of reviewing documents for
discovery.)
FOIA11 imposes two basic requirements:
• a duty to publish or otherwise make publicly available
certain classes of agency records; and
• a duty to make all other agency records publicly available
upon written request, unless specifically exempted by
statute.
FOIA applies to federal agency records. A two-part test must be
used to determine if a document is an agency record. Records must
be (1) created by or obtained by the agency and (2) in the
agency's possession and under its control at the time a request is
received. FOIA does not require an agency to create a record in
response to a request for information or require an agency to
provide future records. A record would be any item, collection, or
grouping of information that pertains to the subject of a specific
FOIA request. FOIA amendments enacted in 2007 expanded the
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.
11 5 U.S.C. § 552 et seq. See also Chapter 2 References, p. 88.
2.3.2.3
Information
Requested
Pursuant to FOIA
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A FOIA search requires that a reasonable search be conducted, one
"reasonably calculated to uncover all relevant documents." A
reasonable effort must be made to search for records in multiple
formats, including electronic formats. 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.
Once an agency determines that something is a "record," it must
process it in its entirety for exemption applicability. Only those
portions that are exempted may be redacted. It is no longer
permissible to redact information within a record as "non-
responsive." In light of this, you will want to ensure that you
carefully define a "record" responsive to a request so that you are
not unnecessarily processing material that is not what the
requester is seeking.
Under the FOIA Improvement Act of 2016, an agency can withhold
information under FOIA only if the agency reasonably foresees that
disclosure would harm an interest protected by an exemption or if
disclosure is prohibited by law.
I On June 30, 2016, President Obama signed into law the FOIA Improvement |
1 Act of 2016 (Act). The Act makes important changes to the existing FOIA |
I passed 50 years ago. The Act contains several substantive and procedural
I changes, including the requirements that agencies establish a minimum of 90
1 days for requesters to file an administrative appeal and that they be provided
1 dispute resolution services at various times throughout the FOIA process. The
I Act also codifies the Department of Justice's "foreseeable harm" standard,
1 amends Exemption 5, creates a new "FOIA Council," and adds two new
I elements to Agency annual FOIA reports.
II
The initial response should inform the requester of the agency's
decision to release or deny records, when it will release records,
the anticipated cost to the requesting party, and that the requester
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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.
When the extension is for more than 10 working days, the agency
is also required to provide the requester an opportunity to limit the
scope of the request so that it can be processed more quickly or to
arrange an alternative time to respond. Failure of the agency to
respond within deadlines may constitute an exhaustion of
administrative remedies, allowing the requester to go to court
immediately. FOIA precludes 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.
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.
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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 may 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 OGC or ORC. OGC is responsible
for making final determinations for all headquarters CBI requests
and only for those regional CBI requests involving FIFRA and TSCA.
All other CBI determinations are made by the appropriate 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
contact the FOIA requester directly (by phone or e-mail) to ask if
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the requester is willing to narrow the scope of the request to
exclude the CBI. In addition, a request for substantiation 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.
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.
Under the FOIA Improvement Act of 2016, the privilege will not
apply to records created 25 years or more before the date on which
the records are requested.
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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 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. The work that PRP search personnel do is covered under
this privilege, and materials they create should be coded as such
when sent to the regional records center for indexing. Consult
regional counsel to determine if such materials may also qualify for
the deliberative or attorney-client privileges.
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Exemption 6 - Personal privacy
This exemption protects personal information whose disclosure
would constitute a "clearly unwarranted" invasion of personal
privacy. PII qualifies for this exemption and also Exemption 3 as it
falls under the Privacy Act.12 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.
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 violate a person's 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.
12 5 U.S.C. § 552a et seq. See also Chapter 2 References, p. 88.
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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. Respondents to
§ 104(e) letters may be able to claim well data as confidential.
Consult regional counsel or your regional FOIA officer if a
respondent makes such a claim.
As EPA employees risk criminal liability by releasing protected
information such as CBI materials or Privacy Act information,
regional FOIA officers/experts or regional attorneys should be
consulted whenever responding to FOIA requests and OGC or ORC
should be consulted whenever a question arises about releasing or
withholding records.
2.4
Document
Management
a JS
C3 —
o -,
(3 •- A
* "J
'
During the planning process, the search manager should establish
a file structure for the search, considering factors such as existing
regional file structures, 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.
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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 evidence summary sheets and the PRP search report. Section 3.2
discusses some factors involved in database creation and the
storage and special handling of documents.
2.4.1
Superfund
Enterprise
Management
System
The Superfund Enterprise Management System (SEMS) is an
internal information management tool used by program staff and
managers to plan and track activities for the removal, site
assessment, remedial, federal facility, and enforcement programs.
SEMS allows users to manage information about PRPs identified at
sites as well. In addition to basic information such as the party's
name, address, and telephone number, its involvement at a site
{e.g., owner, operator, arranger) and type {e.g., municipality,
private company, state agency) are entered and tracked in SEMS.
Likewise, SEMS tracks whether a party has been issued a GNL,
SNL, or § 104(e) information request, or if a party is associated
with a litigation referral. SEMS also tracks any enforcement
instruments a party may be associated with, including what
investigation and cleanup actions the party has agreed to perform
itself or what actions the party has agreed to reimburse EPA for
performing.
Regional SEMS users can enter the details about a new party or
search for information about an existing party. SEMS's data-
sharing capability across all ten regions makes it easy for regions
to locate an existing party and documents relating to that party,
reducing the need to repeat preliminary work that has already been
performed.
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Party information tracked in SEMS is available to all regions and
headquarters the same day the data are entered. Any SEMS user
can access party information. Check with your regional information
management coordinator for more information.
A summary of SEMS's capacity and the type of PRP-related date
gathered, along with examples of screens used when entering data,
can be found in Appendix E.
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Chapter 2 References
Name
Section
Location
Clarification of CERCLA Entry
Policy (March 3, 2010)
2.0
htt ps: //www. epa. aov/enforcement/a u i
dance-clarification-suDerfund-entrv-
doMcv
Entry and Continued Access
Under CERCLA (June 5, 1987)
2.0
htt ds : //www. eDa .aov/enforcement/a u i
d ance-superfund-entrv-and-continued -
access
Applicable or Relevant and
Appropriate Requirements
(ARARs)
2.0
https://www.epa.aov/superfund/applic
able-or-relevant-and-aDDroDriate-
requirements-arars
Environmental Programs
Assistance Act (PL 98-313)
(June 12, 1984)
2.1.1
htt ds : //www. a do . a ov/fd svs/ d ka /U S CO
DE-2009-title42/html/USCODE-2009-
title42-chap55-subchapIII-
sec4368a.htm
Title V of the Older Americans Act
(1965) 42 U.S.C. § 3056 et seq.
2.1.1
https://www.doleta.aov/seniors/other
docs/owD-106-501.Ddf
Transmittal of Sample Documents
for More Effective Communication
in CERCLA § 104(e)(2)
Information Requests by Subject
Category (June 30, 1995)
2.1.2
htt ps: //www. epa. aov/enforcement/su p
erfund-104e-information-request-
a uestions-cateaorv
Documentation of Reason(s) for
Not Issuing CERCLA §106 UAOs to
All Identified PRPs
(August 2, 1996)
2.1.2
htt ds : //www. eDa .aov/enforcement/a u i
dance-documentina-reason-not-
issuina-uaos-all-identified-prps
Small Business Information Sheet
(June 2017) EPA Publication 300-
B-17-001
2.1.2
htt ds : //www. eDa. aov/com dI ia nce/sma 11
-business-resources-information-sheet
Superfund Program
Implementation Manual (SPIM)
Fiscal Year 2017
2.2.1
httDS: //www. eDa. aov/su Derfu nd /su Derf
und-proa ram-implementation-manual
Timing and Procedures for Review
of Certain Time-Critical Removal
Actions by EPA Headquarters
Offices (February 26, 2013)
2.2.1
htt ps: //www. epa .aov/enforcement/a u i
d a nee-ha-review-certain-time-crit ical-
removal-actions-timina-and-
procedures
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Chapter 2 References
Name
Section
Location
Checklist of Information to
Include for Consultation on Time-
Critical Removal Actions by the
Office of Site Remediation
Enforcement" (July 8, 2015)
2.2.1
httDs://www.eDa.aov/enforcement/che
cklist-consultation-time-critical-
removal-act ions
Privacy Policy CIO 2151.1
(September 14, 2015)
2.3
httDs://www.eDa.aov/Drivacv/Drivacv-
policv-cio-21511
Confidentiality of Business
Information, 40 C.F.R. Part 2,
Subpart B
2.3
httDs://www.ecfr.aov/cai-bin/text-
idx?ran=div5&node=40:1.0.1. 1.2#sd4
0.1.2.b
Freedom of Information Act
(Reference Guide), 5 U.S.C. § 552
etseq.
2.3
httDs://www.eDa.aov/foia/auide.html
Privacy Act, 5 U.S.C. § 552a
et seq.
2.3
htt ps: //www. a po. a ov/fd svs/ p ka /U S CO
DE-2010-title5/Ddf/USCODE-2010-
title5-partl-chap5-subchapll-
sec552a.pdf
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3.0 Baseline PRP Search 89
3.1 Review Files and Collect Records 91
3.1.1 Federal Files 92
3.1.2 State Files 93
3.1.3 Local Government Files 95
3.1.4 Other Records 96
3.1.5 Special Planning Considerations 98
3.2 Organize Records and Track Correspondence 104
3.2.1 Organization 104
3.2.2 Correspondence Tracking 107
3.3 issue Information Requests 109
3.3.1 Identify Recipients/Draft Information Requests 111
3.3.2 Mail and Track Information Requests 129
3.3.3 Analyze Responses 131
3.3.4 Develop Response Summaries 133
3.3.5 Information Request Follow-up 134
3.4 Conduct Interviews 135
3.4.1 Interview Considerations 136
3.4.2 Who Should Perform the Interview? 140
3.4.3 Identifying Interviewees 142
3.4.4 Conducting Interviews 144
3.4.5 Interview Documentation 149
3.5 Perform Title Search 152
3.5.1 Determine Ownership Interests 153
3.5.2 Develop a Title Tree or Chronology 159
3.5.3 Additional Uses for Title Documents 161
3.5.4 Updating Title Information 161
3.6 Business Status and Financial Research 162
3.6.1 Introduction 162
3.6.2 Forms of Business Organization 163
3.6.3 Person 163
3.6.4 Business Organization 164
3.6.5 Sole Proprietorships 164
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3.6.6 Partnerships: General Partnerships and Limited Partnerships 165
3.6.6.A Elements Specific to a General Partnership 166
3.6.6.B Elements Specific to a Limited Partnership 167
3.6.7 Corporations 168
3.6.7.A Elements Unique to Corporations 170
3.6.7. B Classification of Corporations 171
3.6.7.C Evolution of Corporations 173
3.6.7.D Sale of Stock in a Corporation 175
3.6.8 Indemnification Agreements 175
3.6.9 Other Entities 176
3.6.10 Additional Liability Theories 179
3.6.10.A Direct Liability of a Person as an Operator or Arranger 179
3.6.10.B Corporate Officers, Directors, Shareholders, or Employees 180
3.6.10.C Liability of Parent and Affiliated Corporations 181
3.6.10. D Piercing the Corporate Veil 183
3.6.10.E Successor Liability 186
3.6.11 Financial Research 190
3.6.11.A Corporation and Partnership Filings Required by States 190
3.6.11.B Court Filings 191
3.6.11.C Federal Sources 191
3.6.11.D Corporate Directories Summary 191
3.6.11. E Credit Reporting and On-Line Services 192
3.7 Develop Site Summary 192
3.8 Compile Waste-In Information 194
3.8.1 Transactional Databases 195
3.8.2 Waste-In Lists and Volumetric Rankings 197
3.9 Classify PRPs 203
3.9.1 Identify PRPs 203
3.9.2 Define PRP Categories 205
3.10 Prepare Baseline PRP Search Report 206
3.10.1 Report Format and Content 207
3.10.1.A Deliverable 1: Site Chronology and Property History 208
3.10.1.B Deliverable 2: PRP Synopsis 208
3.10.2 Report Review and Distribution 209
References 213
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3.0 Baseline PRP Search
This initial phase of the potentially responsible party (PRP) search
is focused on collecting evidence that establishes the liability of
owner/operator PRPs and identifies arranger/transporter PRPs.
Although the exact nature, number, and sequence of search tasks
will vary from site to site, this chapter describes ten tasks that are
often completed as part of the baseline PRP search. Keep in mind
that the specific activities undertaken will depend on what is
needed to achieve the Agency's PRP search goals for a specific site.
The ten baseline PRP search tasks are:
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 C for a checklist of PRP search tasks.)
Preliminary Search Documentation
The Superfund Program Implementation Manual (SPIM) includes a
Superfund enforcement program measure called "preliminary PRP
search completion."1 The measure defines "preliminary" PRP
search activities as those undertaken "to make an initial
identification of PRPs at a site in order to determine if there are
1 Superfund Program Implementation Manual (SPIM) Fiscal Year
2017, Chapter X.A.7.C, pp. X-7-8, September 30, 2016. (See Chapter 3
References, p. 213.)
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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 have been completed and documented as appropriate and
practicable:
• site location and property description;
• current and past site ownership identification/notification;
• site operation identification/notification;
• site owner/operator liability/financial viability determination;
• arranger/transporter identification/notification.
The preliminary search may also be deemed complete when only
some of these tasks have been performed but the region has either
entered into a settlement or issued orders requiring the identified
PRPs to conduct the initial non-emergency response action.
The preliminary search will often consist of a subset of the tasks
performed for the baseline search and detailed in the baseline PRP
search report, which is discussed in Section 3.10. Depending on
site-specific circumstances, however, the two searches may be
coextensive. It is important to understand that while baseline PRP
search reports vary in format and content from region to region
and by site type, the documentation requirements for "preliminary
PRP search completion" are uniform and mandatory.
Completion of the preliminary search must be documented and
reported in SEMS for all searches at NPL and non-NPL sites where a
non-emergency removal or remedial response action is expected.
The measure's definition and documentation/reporting
requirements are set forth in both the SPIM and "Transmittal of
'Preliminary Potentially Responsible Party Search Completion'
Measure Definition for Incorporation into the Superfund Program
Implementation Manual for FY 2012" (June 23, 2011) (see Chapter
3 References, p. 213).
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3.1
Review Files
and Collect
Records
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
violation (NOVs), complaints, investigations, site owner records,
fire department chemical reports, litigation files, bankruptcy files,
local newspaper accounts and records, microfilm, microfiche, and
information available on line.
These records are potential sources of information on site history,
identity of PRPs, and additional contacts. Before an effective
records search can take place, it is critical to become familiar with
the site and all background information. This task generally starts
with a review of existing 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 pertaining to the site is
available in the site file and also should check with current and
former staff who have worked on the site to see if they have
relevant documents that have not yet been sent to the records
center for indexing. 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 at other federal agencies, local offices,
and other sources also should be conducted. This task can be
performed 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" (PRPIIS)
(Appendix F), a detailed compendium of links to business, financial,
legal, real property, and technical information sources, including
EPA and other government agency websites, investigative tools,
directories, libraries, maps, and aerial photographs.
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3.1.1 Federal records may be found in EPA's regional record centers or in
Federal Files ^''es 'n t^ie ^ERCLA, 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 in their regulatory capacity with the site
or a PRP. Other federal agencies may have been sued as PRPs
themselves in private CERCLA litigation. The resultant release of
documents in such litigation can be an enormously significant
resource for EPA's PRP search efforts. Finally, EPA's own intra-
agency communications and databases, such as the SEMS
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
Potential Information
Obtained
Department of the Interior
maps and aerial photographs
Nuclear Regulatory
Commission
licenses, permits, studies
U.S. Geological Survey
studies and ground water data
Environmental Photographic
Interpretation Center
aerial photographs
National Oceanic and
Atmospheric Administration
meteorological data
U.S. Army Corps of Engineers
(USACE)
studies, permits, records at
federally owned sites
Occupational Safety and
Health Administration (OSHA)
inspection reports, health and
safety incident information
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Potential Sources
Potential Information
Obtained
Securities and Exchange
Commission (SEC)
current and archival PRP
documents, including financial
statements, corporate business
publications, quarterly and
annual reports
U.S. Coast Guard
incident response reports
Food and Drug Administration
inspection reports
Federal Emergency
Management Agency
relocation information
Federal Records Center
retired federal record files
U.S. Forest Service
maps, title searches, studies
Bureau of Land Management
mining information
Bureau of Indian Affairs
information on historical
ope rat ions/ leases occurring on
tribal lands
State Files
3 12 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
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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 states will
compile information that they have on file for each site (e.g., spills,
permits issued, compliance history, orders, citizen complaints).
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, sampling
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 (These offices may have
archives of old corporate
information that may have to be
searched separately.)
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Potential Sources
Potential Information
Obtained
Historical Library and
Archives
historical state agency records,
collections of historical
Polk/Haines city directories, and
old telephone books
Mining Bureau/Agency
mining ownership records,
mining bulletins, and mine
journals
Department of Transportation
historical aerial and ground-
level photos
Cities and counties regulate and keep records of activities and
resource use within their jurisdictions. 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 have
prepared site history memoranda and lists of hazardous materials.
As 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
Potential Information
Obtained
Office of the City or County
Attorney
correspondence, permits,
licenses, enforcement actions
Health Department
accident reports, lists of
hazardous materials
3.1.3
Local
Government Files
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Potential Sources
Potential Information
Obtained
Department of Public Works
operations maps, applications,
inspection and violation reports
Wastewater Management or
Pollution Department
permits and licenses,
correspondence, inspection and
violation reports
Planning, Land Use, and
Engineering Departments
plat maps, aerial photographs,
operations maps,
correspondence, applications
Zoning Boards
applications, plat maps, aerial
photographs
Police and Fire Departments
accident reports, lists of
hazardous materials
City or Township
Clerk/County
Clerk/Recorder's Office/Tax
Assessors Office
deeds, leases, grants,
addresses, mortgages and liens,
easements, agreements, legal
property descriptions
Other good sources of information can include:
The PRPs
• PRP management;
• current employees;
• former and retired employees;
• suppliers;
• independent contractors; and
• customers.
Sources of information commonly in PRPs' possession are:
• information on other PRPs, including those not previously
identified;
3.1.4
Other Records
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• 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.
PRPs also have useful information about their corporate
organizational structure, relationship to affiliated companies,
corporate successorship, and financial information, which is difficult
to obtain otherwise if the company is privately held.
Public and University Libraries, Museums, 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
individuals in the community;
• specialized categories of collections {e.g., mining, aerial
photographs); and
• corporate collections donated by individual companies.
Individuals Living Near the 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.
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Other Sources of Information
• on-line sources of free information {e.g., internet searches,
historical aerial photographs, business journal collections);
• subscription on-line information sources (e.g., Accurint,
Autotrack XP, Dataquick, LexisNexis, Westlaw, Dun &
Brad street);
• 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 a dialogue with EPA, 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 special
planning considerations such as:
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 POs and
COs 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 initially want to accompany the
contractor in reviewing the records to determine which documents
are relevant and need to be copied.
2 When contractor support is being contemplated for any PRP
search task, make sure that all conflict of interest (COI) checks have been
completed before the task begins. Coordinate with the regional PO or 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.
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Depending on the volume of records or the release policy of the
custodian of the documents, it may be more efficient to:
• 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 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 specify that the contractor who is reviewing and copying
records is to scan the documents in a format compatible
with the requirements of the records center; 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.)
A major advantage of scanning records instead of copying them is
that scanned images can be sent to the records center for indexing
without the center having to scan them itself for entry into SEMS.
Processing of Reviewed Documents
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
3 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.
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placed in a public docket, the technology available to the public for
accessing them should be taken into account.
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 stamping4
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 Section 3.2.1.)
Privilege and FOIA Considerations
The government's documents may be subject to claims of privilege,
the most common of which are attorney work product, attorney-
client, and deliberative process. (See Section 2.3 for discussion of
these privileges.) Privilege 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 DOJ and EPA attorneys. When
making a claim of privilege, the government must prepare a
privilege log (a list of all documents being withheld and the
particular privilege(s) that are being asserted) and provide it to the
party requesting the document(s). Assertion of deliberative process
privilege has special requirements, including an affidavit from the
4 Bates stamping, either manual or electronic, is often used in the
legal industry to number or date/time-mark images as they are processed.
In recent years, more sophisticated marking technologies have been
developed that can, e.g., 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.
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appropriate assistant administrator or regional administrator
supporting the assertion. A designation of privilege may be
litigated by the opposing party.
Not all documents subject to a potential claim may be marked as
such. Therefore, if there is a possibility that documents being
reviewed are privileged, the reviewer should contact the assigned
attorney, who can review the documents and determine whether
they are subject to a claim of privilege. Some documents may be
marked "enforcement-sensitive," "enforcement-confidential," or
"confidential settlement document." These designations do not
necessarily support a claim of privilege and must be reviewed by
the assigned attorney to determine whether the documents so
designated are subject to claims of privilege or are releasable.
Bear 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. Documents subject to a FOIA
exemption must be reviewed in light of the FOIA exemptions set
forth at 40 C.F.R. § 2.105. (See Section 2.3 for discussion of FOIA
exemptions.) Consult the regional records management
coordinator regarding special procedures for managing privileged,
enforcement-sensitive, confidential, and FOIA-exempt documents.
Confidential Business Information
Files obtained from PRPs may be subject to CBI claims. Although
claims of government privilege are discretionary, CBI privilege is a
matter of law. Generally, enforcement contracts include CBI
clauses. Contractor personnel sign CBI agreements when contracts
are awarded, allowing them access as authorized representatives
of EPA to documents containing PII as well as CBI. The PRP search
manager, PO, and CO, however, can verify that fact and provide
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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 the 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. 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 or 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.
If the work environment of the EPA staff or its contractors
performing the records reviews is not safe or healthy for the period
of time required for the records reviews and copying (e.g., if the
records are located in a shed), then provision should be made for
moving the records temporarily to another location.
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Preservation of Original Records
EPA staff or contractors performing the records reviews may come
across documents that they believe may prove useful to retain in
their original hard-copy condition (in addition to being copied or
scanned) for purposes of litigation. If the persons doing the records
reviews notice that the original documents are deteriorating, or
they have been informed by the owner of the documents that the
owner plans to destroy them, the persons conducting the records
reviews should immediately inform the PRP search manager and
site attorney.
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. Parties refusing access often
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.
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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.
Electronic copies of all records placed into a PRP search records
tracking database should simultaneously be sent to the records
center to be indexed so that the site file in SEMS is kept up to
date. This is especially important for searching site files in SEMS
for purposes of responding to FOIA requests. If the electronic
records in the PRP search database are too voluminous to send on
an ongoing, timely basis to the records center (i.e., the intention is
to send all of the scanned images to the records center at the end
of the PRP search), inform the person who is responsible for
responding to any FOIAs received for your site that potentially
FOIA-responsive records are being maintained outside SEMS and
that he or she should ask you to search the PRP search database if
a FOIA related to that site is received.
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;
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• 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 in chronological order or by subject
matter, PRP, or author. The documents are then assigned an index
number {e.g., using a Bates stamp or 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 determined 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 SEMS, and some regions use it to store and
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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-related information, and may have PRP search
applications. (There may, however, be prohibitions against using
FTP sites to store or share records, even with an enforcement
contractor, if they are outside EPA's security firewall.) 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 G) 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
these 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).
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When establishing a database for site documents, keep in mind
that new documents will be added periodically. The database index
may require significant revision 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
requirements for database maintenance and modifications should
be considered in order to assure the continued usefulness of the
database.
222 Tracking correspondence with PRPs and other parties often requires
use of a database due to the large number of parties involved. If a
Correspondence
database is necessary, the following factors should be considered
Tracking prjor t0 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;
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• resource requirements for database development and
maintenance;
• contractor support requirements;
• period of performance of the contract;
• expected period of database use;
• compatibility of Agency and contractor 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 superfluous
information or 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
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.
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3.3
Issue
Information
Requests
Sections 104(e) of CERCLA and 3007(a) of RCRA authorize the
Agency to issue information request letters.
CERCLA § 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 § 104(e) is delegated to specific individuals within each
region. Issuing information request letters is a basic component of
nearly all PRP searches. Under CERCLA § 104(e)(2), "[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 § 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
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relating to such wastes and permit such person [officer, employee,
or representative of the President] at all reasonable times to have
access to, and to copy all records relating to such wastes."
RCRA § 3007(a) authority is in some ways narrower than CERCLA
§ 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,
such wastes. On the other hand, information the Agency may seek
about hazardous wastes under § 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 PRP. A compilation of model
information request letters, questions, and additional relevant
resources can be found on EPA's "Superfund Information Request
Letters" Web page. (See Chapter 3 References, p. 213.) The
letters and questions are specifically tailored to the type of site
(e.g., chemical plant, dry cleaner, landfill), 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
Section 3.3.1 for additional information on the nature and content
of information request letters.)
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3.3.1
Identify
Reci pi ents/D raft
Information
Requests
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 § 104(e), the Agency is sensitive to the substantial
burden that may be imposed on parties who receive an information
request.
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:
• 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.
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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 Appendix F, "Potentially
Responsible Party Internet Information Sources (PRPIIS).")
PRP search personnel should start by contacting their information
support staff, regional librarian, or enforcement staff to determine
what subscription on-line sources are currently available in the
region and if any use restrictions apply to them.
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, arranger) 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
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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 an individual 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. Model information request letters, including initial
request letters tailored to individuals and small businesses, are
attached to "Guidance on Use and Enforcement of CERCLA
Information Requests and Administrative Subpoenas" (August 25,
1988) and "Transmittal of Sample Documents for More Effective
Communication in CERCLA § 104(e)(2) Information Requests"
(June 30, 1995), both of which are available via EPA's "Superfund
Information Request Letters" Web page. (See Chapter 3
References, p. 213.)
Confidentiality Considerations
The PRP search team must insert confidentiality language into the
information request letter that is consistent with 40 C.F.R. Part 2,
Subpart B (40 C.F.R. §.201-2.311). This is a legal requirement that
also serves two practical, search-related 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 (See CERCLA § 104(e)(7)(A).) 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 any concerns the recipient may have.
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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 § 104(e) letter,
GNL, or SNL so the letter is releasable under FOIA. If a home
address is used, the letter generally ought 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 designed to avoid liability. This belief
can be 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 expressly asserts
EPA's authority and explicitly describes the recipient's
responsibilities.
For instance, the False Statements Act (see Chapter 3 References,
p. 213) 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. 213) if the party
transferred property or assets to avoid a federal debt under
CERCLA.
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When seeking information from a corporation, § 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 to confirm the most recent maximum penalty amount,
which is revised annually. (See Section 4.2 for further discussion of
penalties under the heading "Judicial Action to Compel
Compliance/Referrals to DOJ.")
The PRP search team also may 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.
Site/PRP Information Needed
Issuing a § 104(e) letter serves to obtain information for both
enforcement- and cleanup-related purposes. Responses to a
§ 104(e) letter can help identify additional contaminants of
concern, locations of operations, and disposal locations that the
RPM or OSC may be unaware of, and which can be used to help
focus the RI/FS. Also, it is advisable to provide a copy of the draft
letter to the RPM and OSC to give them an opportunity to include
questions relating to their work on the site that you might not have
considered.
The PRP search team should determine;
• what information is needed to identify PRPs (e.g., manifest
data, names, addresses);
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• 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 search team can
draft the letters to ensure that the responses contain information
that will advance the PRP search and the site cleanup.
Need for More Detailed PRP Financial Information
Under CERCLA § 104(e)(2)(C), EPA has the right to collect financial
information in order to determine a PRP's ability to pay response
costs or perform response work. In the baseline search, the PRP
search team is expected to make a preliminary determination of
the PRP's financial viability, such as whether the PRP is defunct.
(See Section 3.0.) The team subsequently needs to determine
whether to seek more detailed financial information and, if so,
when. Generally, it should not seek such information until after
the PRP first raises concerns about its financial condition. Thus,
questions about the PRP's financial resources usually should not be
included in the initial information request, which likely should be
focused on liability. If it appears that the PRP's financial condition
might not be an issue, then an EPA request for detailed financial
documentation might be perceived by PRPs as an unnecessary
burden. They may try to object to the Agency's request, which
could lead to a delay in obtaining other information necessary for
the PRPs to coalesce or for a site response to be initiated.
Accordingly, EPA will often wait until it issues GNLs before asking
PRPs if they believe that they may have an ATP concern.
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One exception, however, may be when the case team is already
aware that the PRP's financial condition may be an issue. In this
circumstance, it may be more efficient for the case team to include
financial questions in its initial information request.
Another exception may involve removal actions that ought to start
relatively soon. In this circumstance, the case team may feel that
it would be useful to solicit financial information at the outset so
that it can quickly determine whether to issue a CERCLA § 106
administrative order obligating the PRP to conduct the removal.
If the case team does decide to seek financial information, either in
a subsequent information request or, less commonly, in the initial
information request, it generally should include questions about the
PRP's assets and liabilities. (See discussion of ATP determinations
in Section 4.5.) Significantly, the Agency should strongly consider
requesting information about a PRP's insurance policies. Such a
request should be worded as a request for information about any
policies the PRP currently has and previously had, going back to
when the contamination commenced.5 The request should try to
obtain copies of the policies themselves or other evidence of their
existence, e.g., documentation of payments for insurance
premiums. Requests for insurance information can be particularly
relevant in bankruptcy and other situations. (See the discussion of
insolvent and defunct determinations in Section 4.6.2.)
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:
5The request should not be worded as a request for policies
covering liability relating to the contamination. If the PRP's § 104(e)
response to a request worded in this manner fails to identify a particular
policy, the insurer may later argue that such failure constitutes evidence
that the PRP did not believe that this policy was applicable.
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• a written response for each question;
• a fill-in-the-blanks checklist; and
• 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 from party to party,
but questions should always be written in as clear and concise a
manner as possible and ask for only one piece of information per
question. If one and the same question asks for several pieces of
information, the response is more likely to omit one or more of
them than if each were the subject of a separate question. If it is
necessary or more efficient to tie related questions together into
one question (e.g., when you are asking about operations at a
site), the question can be broken down into subparts. For example,
"Please provide the following information related to your use of
trichloroethylene (TCE):
(a) Describe each type of operation that used TCE;
(b) Describe each physical, on-site location where TCE was
used;
(c) Identify the volume per month of TCE used at each
location;
(d) Describe the process for handling wastes from each
operation that contained TCE; and
(e) List the volume per month of waste TCE generated from
each operation."
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
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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 website 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 website is to make non-confidential
information available 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.6 The nature and location of a repository or
publicly accessible website 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,
• previous site response reports, if applicable (e.g., an
OSC report), and
• a copy of CERCLA, the NCP, and relevant guidance,
6 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. 213.)
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• 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 timelier 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.
When you develop a list of questions, imagine yourself receiving
such a request and consider limiting the number of questions you
include. You can always issue a supplemental letter to obtain more
information. Also consider the resources required on your end to
evaluate the response and process the documents received. Your
goal should be to ask as many questions as it takes to get the
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information you need without eliciting extraneous information. For
example, instead of making an overly broad request of all board of
director meeting minutes for ten years, you might narrow it down
to only the years of most importance and only minutes of meetings
at which your subject of interest was discussed.
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
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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
appropriate to either a Bestfoods or successor liability inquiry. (See
Section 3.6 for further discussion of 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.
Information request letters also may be useful in pursuing specific
legal theories of liability (e.g., piercing the corporate veil based on
a parent company's failing to observe corporate formalities and
treating the subsidiary as a division of the parent instead of as a
separate company. (See Section 3.6.10 for discussion of liability
theories.) 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.
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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;
• cite EPA's statutory authority under CERCLA § 104(e)
and/or RCRA § 3007(a) 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 § 104(e) and RCRA § 3007 may
be challenged if the EPA official who signs the letter has
been delegated only CERCLA § 104(e) authority.);
• indicate that the Agency plans to enforce its information-
gathering authority under CERCLA § 104(e)(5);7
• 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 CERCLA
§ 104(e);
7 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.
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• advise the recipient that it must supplement its response if
new information comes to light;
• advise the recipient to contact the Agency with questions or
for clarification about what is being requested; and
• clearly indicate when the response is due.
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;
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• information regarding operations at the property, including
disposal practices (amounts, types of substances, locations,
timeframe) and site conditions, including any Phase 1 or
Phase 2 investigation, of both present and past
owners/operators;
• surveys, maps, photographs (including aerial photographs)
of the property;
• copies of insurance policies covering the property;
• 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"); and
• 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, 524 U.S. 51 (1998). The PRP search
team should give special attention to parent/subsidiary and
successor liability issues.
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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. (See the cautionary language in "Need for More Detailed
PRP Financial Information" on p. 116 about determining whether to
request information on insurance coverage.)
When an owner/operator's financial records survive, they often
contain the amounts and dates of customer invoices and
payments. These may serve as both primary sources of information
and secondary sources of conversion rates that may allow a
customer's "one load at $5.00" to be converted to an accurate
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 arrangers 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.
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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 ARAR for future response actions, or may
be used later in an allocation of PRP responsibility.); and
• 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.
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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.
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 Arrangers/Transporters
Arranger/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
arrangers/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.
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Information request letters to arrangers/transporters are typically
similar in scope to the letters issued to owners/operators.
Information request letters issued to arrangers/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.
Model CERCLA § 104(e) information request letters and questions
for all categories of PRP may be found via EPA's "Superfund
Information Request Letters" Web page. (See Chapter 3
References, p. 213.)
3.3.2
Mail and Track
Information
Requests
V
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 of 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 returned due
to incorrect addresses.
Information request letters may be sent via:
Certified mail, return receipt requested. Delivery may also
be accomplished through commercial delivery services. 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
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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 for reasons such as
"address unknown", "no forwarding address", or "refused
receipt";
• Priority mail. The U.S. Postal Service (USPS) will provide the
sender a tracking number to check on line at the
www.usps.gov website. The recipient does not have to sign
for the letter. If the recipient is located at the address on
the letter, 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 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
send the information request again. Although this requires some
effort, any effect on the schedule will likely be relatively minor
while the rewards from successful delivery could be significant.
Tracking information request letters should be planned for in
advance of their mailing. Bear in mind that USPS does not deliver
to foreign countries, so although it is generally less expensive to
use it to deliver § 104(e) letters, you will need to use a commercial
service to deliver one to an entity in another country.
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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 PRP search staff or search manager.
Process servers may also be used to deliver § 104(e) letters, notice
letters, and lien notifications when the recipient refuses to sign for
them. 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.
3.3.3 Analyzing responses received is among the most important
Analyze elements of the PRP search. Information request letters are a basic
_ component of most PRP searches, and responses may be the only
Responses
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 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;
• evidence of availability of defenses to 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.
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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 parties with
significant liability concerns as 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.
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.8 PRP search
managers and others should segregate any materials claimed as
CBI in order to assure that they are not released. A determination
8 40 C.F.R. § 2.201 etseq. (see Chapter 3 References, p. 213)
sets out the procedures for making CBI determinations. EPA may
determine the confidentiality of business information as soon as it is
received. 40 C.F.R. § 2.204(a)(2) authorizes EPA to make a CBI
determination even though no request for release of the information has
been made.)
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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 determination that
materials are 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 40 C.F.R. §§ 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 as civil
and criminal penalties may be imposed for improper disclosure of
CBI materials.
3 3 4
' ' After analyzing responses to the information request, it may be
Develop Response helpful to develop summaries of all responses received. Response
Summaries summaries aid development of the site history and encourage PRP
involvement. Summaries can be useful for decision makers and
other parties involved in the PRP search as they are easier to
review than each response individually.
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.
These functions must be performed by EPA personnel.
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3.3.5
Information
Request Follow-up
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;
• issuing an administrative order to compel compliance;
• issuing an administrative subpoena pursuant to CERCLA
§ 122(e)(3)(B); 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. (See Section 4.1 for detailed
discussion of issuing follow-up information request letters.)
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. Consider using a less
time-consuming approach than the previous two methods by
developing a "speedy type memo", such as a generic pre-formatted
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"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 should 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. Regions are strongly encouraged
to use CERCLA § 122(e)(3)(B) administrative subpoenas and
§ 104(e)(5)(A) administrative orders in the initial phase of the
search if the PRP is being recalcitrant.
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, disposal
locations, and 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 the right to be notified of the
3.4
Conduct
Interviews
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interview and to be present for it. These considerations may apply
even if the EPA attorney is not present, as PRP search personnel,
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 Interviews are generally performed to identify additional PRPs or
Interview gather evidence for liability determinations. If site documents do
^ not exist, interviews may be the only method available to obtain
Considerations
the information needed to complete the search. Interview
questions, therefore, should generally focus on whether the
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;
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• 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.
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 RI 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 current, former, and
retired employees, who are likely to be among the best sources of
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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.
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 instead of sending 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.
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It is helpful to have access to PRP search personnel 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
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,
the site team may first want to conduct an interview and then
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3.4.2
Who Should
Perform the
Interview?
depose the interviewee as a potential witness. This is especially
desirable if it appears that the individual may die or suffer loss of
memory by the anticipated date of litigation.9
Interviews should be performed by EPA staff members who have
experience or specialized training in how to conduct them. They
are usually performed by PRP search personnel, 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 aware of any ethical rules or state bar rules restricting contact
with represented parties. Even though the interviewer may 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. Both the site attorney and RPM/OSC should review a
draft list of proposed interview questions to see if they want to
include any others.
i m
Signed Statements
Interviews are conducted pursuant to the authority of CERCLA
§ 104(e). Face-to-face, in-person interviews conducted by PRP
search personnel can be a good source of information that cannot
9 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. 213, for more information on
use of recordings and signed statements.)
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be matched by written questions and answers due to the free-
flowing nature of an interview.10 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
have faded from his or her memory.
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." (See Federal Perjury
Statute, Chapter 34 References, p. 213.). 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.
10 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 § 104(e) information request or an administrative subpoena
may be appropriate.
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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 Interviewees are typically persons who may be able to identify or
. . ... . locate PRP and site documents. After a thorough review of collected
Identifying
site information, the PRP search team should develop a list of
Interviewees 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
Section 3.4.1. The PRP search manager should also review the
prioritized list of interviewees in light of resources available (e.g.,
time, staff, funds) to conduct the interviews.
Potential interviewees include:
Site Operators and Employees (Present and Past)
• plant manager
• plant engineer
• supervisors
• equipment operators
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• 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
• Department of Veterans Affairs
• OSHA
• USPS
State Government Officials
• environmental agencies
• bureau of vital statistics
• secretary of state
• attorney general
• professional licensing boards
• probate/superior courts
• department of public health
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Local Witnesses
• police officers
• firefighters
• city/county clerks and assessors
• neighbors
• building inspectors
• local government
• meter readers (water, gas, electric)
• county health department
• local library
• historical societies
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;
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• 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 and 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 his or her knowledge {e.g., first-hand
information, rumors).
Government Officials
Interviewing federal, state, or local government officials can be
very productive because these officials, especially state and local
ones, often have 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 PRP search
personnel instead of contractors as PRP search personnel 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 or herself orally 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;
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• 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 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.
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 as would any other private party. As always,
contractors performing interviews should be required to obtain
approval from the PRP search team before contacting interviewees.
Interview Facts and Tips
Although PRP search personnel 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.
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• Investigators do not have authority to grant anonymity to
interviewees.11
• Consider hiring a private investigator who is skilled in
interview techniques to conduct interviews.
• Obtain the cooperation of the interviewee as the interview
may lead to a deposition. For example, if the interviewee is
a former employee with health problems, ask if the facility
ever provided them with warnings or safety
equipment/training for the chemicals he or she handled.
• Never lie to or deceive the interviewee.
• 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.
11 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 or she may choose to
discontinue the interview pending disposition of the request.
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• 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 or her story once before
challenging or asking detailed questions.
• Attempt to resolve inconsistencies in the interviewee's
responses before leaving the interview.
• 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.
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• The interviewer should indicate in his or her interview notes
what can be substantiated and what is speculation.
Interviews are generally documented in one of three ways:
• written summaries;
• 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.
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.
3.4.5
Interview
Documentation
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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
whether the interviewee understands that the interview is being
recorded, and verify that it is being done with his or her
permission. Obtain the interviewee's name, address, and date of
birth, making sure to confirm the spelling of the interviewee's
name. The interviewer also may ask for the interviewee's 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.
After the interview is over, verify that the interviewee understood
that the conversation was being recorded and had granted
permission for the recording. The interviewer should provide a
closing that includes his or her name, the name of the interviewee,
and the date and time the interview ended. A transcript of the
recorded interview serves as the written record of the
conversation. After transcription is completed, the original tape
should be secured in a safe location, and its location and the
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.
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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 himself or 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 provided in the interview. The interviewee will be
apprised of and given the opportunity to make changes to the
summary before signature. The interviewee 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
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 charges of
penury if the interviewee changes his or her mind. Great care must
therefore be taken to ensure that any affidavit is taken voluntarily
and the interviewee has an opportunity to review and edit any
statement it contains before signing it.
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.
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3b5 A title search is a review of public records for information about
past and current ownership of real property. These records may be
Perform Title
located at county, township, or parish clerks' and recorders' offices.
Search (iax 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;
• identifying current encumbrances of the 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;
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• 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);
• obtaining a legal description so that the property
encompassed by the deed can be plotted over an aerial
photograph to determine visually whether site operations or
contaminants are located on a specific parcel;
• 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.
3.5.1
Determine
Ownership
Interests
Scoping a Title Search
A title search seeks to identify current owners and matters that
currently affect the property (e.g., easements, mortgages, taxes)
and former owners and leaseholders, if leases were recorded. 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.
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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 PRP search personnel or other
EPA employee, 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 B) 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
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
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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
conveyance of the property from one party to another, generally
called a deed, will usually include the legal description and perhaps
the tax assessors 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
current owner's deed can be obtained from the recorders 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.
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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 is unclear, for example, a survey may
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 may 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;
• the area the title search is to cover (identified by site parcel
legal descriptions, county tax assessor parcel numbers,
street addresses, or section, range, and township
numbers);
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• 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
• liens (e.g., tax, mechanics, lis pendens, declaration of
takings)
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• declarations of restrictive and maintenance covenants
• leases
• mineral leases
• oil and gas leases
• parcel maps
• plat and subdivision maps
• tax statements/appraisals
• Uniform Commercial Code (UCC) Article 9 statements
• financing statements
• real estate contracts
• bills of sale
• powers of attorney
• assignments
• affidavits
• wills
• bankruptcy proceedings
• judgments
• land trust
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.
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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 Sections 3.6.1 through 3.6.9 and 3.6.11 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);
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• 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 geographic
information system 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 illegible;
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• 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 USACE historical records on rivers and
creeks as USACE projects can effect changes in property
boundaries that are often not documented in local property
records.
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3.6
Business Status
and Financial
Research
3.6.1
Introduction
It is important to bear in mind that in some circumstances,
institutional controls cannot be placed on property without the
written consent of the property owner, whether the owner is a PRP
or not.
• CERCLA § 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.)
• Individuals and a variety of commercial and governmental
entities may qualify as persons because of their own acts
and omissions or because of the acts or omissions of others.
(See Section 3.6.3 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.)
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• 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.
• 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.
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 establish 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 accurately to identify the PRP and 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.
You should consult the appropriate attorney in your region when
assessing the potential liability of PRPs associated with a particular
site.]
3.6.3 In order to understand the significance of various business forms
Person as re'ate t0 the CERCLA liability scheme, it is helpful to review
the definition of "person" in the statute. CERCLA § 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."
3.6.2
Forms of
Business
Organization
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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
consequence of these commercial acts, persons can be liable,
under both civil and criminal statutes, for the consequences of their
acts or failures 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 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, and
corporations.
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 Schedule C, which is attached to Form 1040, the
individual income tax return.
3.6.5
Sole
Proprietorships
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Ownership and Liability: The individual owns all the assets of
the business, controls its activities and direction, and is liable for all
its debts and obligations. Accordingly, any asset owned solely by
the individual can 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 law of
the state where the asset is located or the individual(s) 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.
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.
3.6.6
Partnerships:
General and
Limited
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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
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 or her 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.
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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.
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 controlling authority to direct or run the business.
Limited partners may sell their interests 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 duty 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, however, is normally limited to the amount of his
or her investment.
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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.
3.6.7
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 matters. 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.
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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.
"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 Section 3.6.7.B for
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 only
to the extent of their investment in the corporation.
Regulation: Corporations must be incorporated under state law
and 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
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3.6.7.A
Elements Unique
to Corporations
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 SEC, and
must provide substantial disclosure to the public, as noted in
Section 3.6.11.C.
• Continuity. A corporation is established in perpetuity, and
can continue to operate even in the event of death,
disability, or withdrawal of shareholders, directors, or
officers.
• 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.
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3.6.7.B Public vs. Private Corporations
Classification of
In a public corporation, stocks or shares are listed on a stock
Corporations
exchange such as the NYSE or 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 TD
Ameritrade. 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 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 incorporated 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.
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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 no more than 100 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
qualified to do business in a state in this country, but incorporated
in a different country. 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.
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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 Ford
Motor Company operating in a state at any one time).
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, which may be
different from the state in which Superfund liability arose, and
determine its current status.
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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
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 § 107(a)(2) if it owned the
facility at the time of disposal. Therefore the PRP search should
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continue to investigate the selling corporation with particular
attention to the proceeds of the asset sale. (See Section 3.6.10.F
for discussion of exceptions to this general rule.)
3.6.7.D Ownership of stock in a corporation may change over time.
Sale of Stock in a Exchange of stock in and of itself does not change the corporate
Corporation person. Accordingly, if the only change in a corporation is the
ownership of its stock, then there is no change in the identity of
the liable party.
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
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 Section 3.6.10.
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. CERCLA statute allows such
indemnification agreements, while also prohibiting any transfer of
CERCLA liability. (See CERCLA § 107(e)(1).) Resolution of disputes
and alleged failures to perform arising from indemnification
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
resou rces.
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
3.6.8
Indemnification
Agreements
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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. Agreement of the indemnifying
party must not be obtained in a way that inadvertently effects a
waiver of the United States' enforcement authority over the PRP
who is being indemnified.
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. It is therefore important 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. As trustees are fiduciaries, their liability is limited by
CERCLA § 107(n) to the trust's assets.
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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, real or personal,
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 his or her mind. Other trusts are revocable, which
means that the grantor retains the right to revoke 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.
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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
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 UCC or
Business Corporations Act to allow for the creation of a business
entity known as a "limited liability company" (LLC). Members of the
LLC enjoy the limited liability protection generally afforded to
shareholders of corporations. Requirements include public notice or
registration of the entity as an LLC and, in some cases, use of the
term "limited liability" in the company name.
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Foreign Companies
EPA has successfully litigated against companies that do not
currently operate in the United States but whose predecessor
companies had presences here at the time of disposal. For
example, the Agency obtained a cost recovery judgment against a
Canadian company in connection with the Lava Cap site in
California. Make sure you understand what information you need
and what procedures to follow to obtain jurisdiction over entities
not based in the United States.
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
validity and interpretation of these liability theories may be viewed
or applied differently in among federal judicial districts and from
state to state, it is strongly recommended that ORC and DOJ 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
Arranger
Subject to the appropriate legal defenses and exemptions outlined
in Sections 1.2.5 and 1.2.6, 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 Section 1.2.4, liability may also be imposed upon
operators and on "persons" who arranged for treatment or disposal
of hazardous substances and transporters. As the PRP search
proceeds, many additional "persons" are often identified who
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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
§§ 101(21) and 107(a) under a 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, and
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
Section 3.6.10.C) 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.
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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 or
her position. Evidence that shows that an individual's activities
exceeded the scope of his or her 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 TCE into a disposal trench, he or she 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 § 107(a)(2) for parent corporations as operators of
facilities owned or operated by subsidiary corporations. 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 § 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
facility12. The court also stated that a parent's control over a
12 In United States v. Kayser-Roth Corp., 272 F.3rd 89 (1st Cir.
2001), for example, Kayser's control over its subsidiary's environmental
operations at the facility satisfied the Bestfoods requirements for direct
operator liability of a parent corporation.
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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 Supreme
Court emphasized the importance of corporate decisions that are
not made in the best interests of the subsidiary.
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;
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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?);
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.D
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 a shareholder's liability is limited to his or her
investment.
In Bestfoods, the Supreme Court left open the question whether
state law or federal common law should apply to veil-piercing
claims in actions to enforce indirect liability under CERCLA.13
13 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.
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Federal courts are divided on this issue. Most courts (federal and
state) apply a multi-pronged test to determine if a shareholder is
liable for the wrongdoing of the corporation with which the
shareholder 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.14
In order to pierce the corporate veil successfully, the party seeking
to do so has the burden of showing why the veil should be pierced
and what injustice, fraud, inequity, or other detriment will occur if
it is not (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
14 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.
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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; sometimes it is state-specific and
sometimes it may be federal common law. It is very important,
therefore, to consult ORC and, when appropriate, DOJ 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.
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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:
• 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.E
Successor
Liability
As a general rule, a person who purchases some or even all of the
assets of a business from another person during the course of an
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:
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• The buyer expressly or implicitly agrees to assume the
seller's liabilities. Because EPA was not a party to this
transaction or contract, advice of regional council should be
sought to determine whether EPA may 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 Section 3.6.7, when there is a
formal merger between two or more corporations,15
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;
15 Whether a merger has occurred can often be determined by
reviewing 10-K forms and other federal and state filings.
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• use of the same production facilities in the same
location;
• production of the same product;
• 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, and 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.
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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. In such cases, the PRP search would need to
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.
• Given the statutory prohibition on transfers of CERCLA
liability and the fact that 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 ORC and DOJ when
making a liability determination based on successor liability.
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3.6.11
Financial
Research
Effective financial research starts with 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. 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.
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3.6.11.B Federal and state courts are often good sources of information that
Court Filings 's 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.
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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. (See Appendix F for a compilation of on-line
resou rces.)
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 repeat 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 consistently with the information management provisions
of the PRP search plan and reviewed for pertinent site data,
information linking parties to the site, sufficiency of evidence
establishing the liability of PRPs, financial viability, and potential
leads about other parties involved with the site. This review should
3.6.11.E
Credit Reporting
and On-line
Services
3.7
Develop Site
Summary
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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 ttie 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 or
containers) and, to the extent such 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 owners/op era tors;
• when operations began;
• type of operations at the site;
• types of substances manufactured, treated, stored, or
disposed of;
• permits applied for or granted; and
• warnings or NOVs issued by regulatory agencies.
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All information contained in this summary 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 use of the property due to wastes
deposited at the site or past industrial practices should be noted.
In addition to developing evidence for CERCLA §§ 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
§ 122(e)(1), 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. Addresses will be
provided subject to FOIA restrictions (i.e., addresses of individuals
must be redacted). Aside from the statutory provisions for
development and release of such information, experience has
demonstrated that waste-in lists and volumetric rankings are a
valuable tool in bringing about settlements. When presented with
an estimate of the nature and volume of hazardous substances
3.8
Compile
Waste-in
Information
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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 arranger and
transporter liability and volumetric rankings. Since current Agency
policy calls for early settlement with small-volume waste
contributors, however, arranger-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 § 122(g)(1)(A)" (July 30, 1993) for detailed
guidance on the use of waste-in information in settlements with
small-volume contributors, Chapter 3 References, p. 214.)
3.8.1 Sections 3.2 and 3.3 discuss the value of databases for tracking
_ . correspondence and information requests. Similarly, large amounts
Transactional
of information on arranger and transporter waste types and volume
gathered from previous baseline tasks can best be managed with a
transactional database. Transactional databases are used at
recycling sites, landfills, and other such sites with large numbers of
arrangers. 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.
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Evidence Summary Sheets - Arrangers
A separate evidence summary sheet generally is prepared for each
shipment or group of shipments of a hazardous substance sent by
an arranger to a site for treatment or disposal. The evidence
summary sheet for the arranger 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 arranger 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
site, since they can identify the arrangers. Although the
transporters may not have selected the site, and consequently may
not be liable, the transporter's customer may be liable as an
arranger. By identifying all transporter volume, the database can
ensure that each transporter volume is linked to an arranger,
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thereby making sure that all arrangers 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 database, 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,
number, 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 should 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
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:
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• 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
Arrangers are usually included on a waste-in list when evidence
indicates they contributed hazardous substances to a Superfund
site. Transporters should be included when the transporter, not the
arranger, determined where the hazardous substances were to be
taken for treatment or disposal. As a policy matter, EPA
implements CERCLA §§ 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.
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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 arrangers, waste-in lists should be
organized by arranger, with a column provided for listing the
transporter of each shipment in order to link the arranger to the
site. When there are multiple transporter PRPs, it may be advisable
to prepare separate waste-in lists for generators and transporters.
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 a facility. This ranking lists hazardous
substances and their respective volumes in descending volumetric
order. It can be developed from waste-in list information.
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Volumetric Rankings of PRPs
Volumetric PRP rankings (sometimes referred to as arranger
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
§ 122(e)(1)(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.
Special Considerations
Commonly Contributed Volumes
When hazardous substances are contributed both by an arranger
and a transporter that designated the treatment or disposal site,
regions are advised to:
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• attribute the volumes to both parties when compiling
waste-in information;
• not try to apportion responsibility for a hazardous substance
shipment arranged 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, because of both poor recordkeeping practices and the
mixture of different wastes disposed of at landfills. In many
instances, most of the wastes in a municipal or co-disposal landfill
are not hazardous substances and do not belong on a waste-in list
or a volumetric ranking.
Non-exempt arrangers and transporters of MSW or municipal
sewage sludge will generally not be notified as PRPs unless
information obtained through CERCLA § 104(e) letters or by other
means shows that:
• the waste or sludge contains a hazardous substance; and
• the hazardous substance came from a commercial,
industrial, or institutional process or activity.
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(See Sections 1.2.6 and 1.2.7 and Chapter 1 References, p. 42, for
discussion of the CERCLA § 107(p) MSW exemption.)
Arrangers and transporters of commercial trash will generally not
be notified as PRPs if such parties demonstrate that:
« none of the hazardous substances contained in the trash are
derived from a cornrn ercial, 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
waste-in lists can be developed. Even after the work has been
started, however, there may be a need to prepare a 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 irnportantto
notice as many parties as possible to limit due process issues that
may be raised by PRPs. At NTCR sites, the creation of waste-in lists
and volumetric rankings should be seriously considered as there is
more time available to preparethern than at other removal sites.
When adequate transaction documentation exists and settlement
seerns possible, regions should prepare waste-in lists and rankings
as described in CERCLA § 122(e)(1) for release to PRPs. Because
removals may proceed at an accelerated pace, it is irnportantto
start the waste-in preparation early, spend less time fine-tuning
lists and rankings, and release the information to PRPs as early as
possible.
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(See "Final Guidance on Preparing Waste-In Lists and Volumetric
Rankings for Release to Potentially Responsible Parties (PRPs)
Under CERCLA" (February 22, 1991) for more information on
preparing waste-in lists and volumetric rankings; special
considerations for solvent recycling and transshipment, lead
battery, and mining sites; and releasing waste-in information,
Chapter 3 References, p. 213.)
3.9
Classify PRPs
The objective of this task is to classify identified parties into the
broad categories of owner, operator, transporter, or arranger, and
then more specifically into other categories, such as de minimis,
"de micromis", and insolvent or defunct.
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 that 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
those steps.
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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 about 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 GNLs or SNLs and helps ensure that
PRPs receive adequate notice and due process rights. Failure to
satisfy these procedural requirements may lead to significant
problems later in the Superfund enforcement 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.
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3.9.2
Define PRP
Categories
PRP classification initially involves grouping PRPs into one of the
following CERCLA categories:
• owners (past or present);
• operators (past or present);
• arrangers; 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:
• ATP parties;
• de minimis arrangers;
• "de micromis" arrangers;
• MSW generators;
• residential homeowners;
• insolvent or defunct parties;16 and
• 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;
16 During the baseline phase of the PRP search, it may not be
possible to determine conclusively if a party is insolvent or defunct due
to the time-consuming nature of this determination. Preliminary
determination 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.
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• 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 contains available information on
the owners/operators, generators, and transporters. It provides a
chronological summary of site history and the facts pertaining to
PRPs' liability. Information supporting the report's conclusions is
generally included in appendices. The baseline report is generally
followed by the interim-final PRP search report except in simple
owner/operator situations where the baseline report will usually
suffice. (See Section 4.8 for further discussion of the interim-final
report.)
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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 are subject to discovery production demands and FOIA
requests, several EPA regions have adopted 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.
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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 Sections 1.2.5 and 1.2.6);
• major reference sources;
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• 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 separate 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 site chronology and property history 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.
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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 underwhose direction
• list of contacts - public agencies that were contacted to collect information
• overview of report - the basic layout of the report.
Site Discussion
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
• whetherthe 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.
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EXHIBIT 1: SUGGESTED PRP
SEARCH REPORT FORMAT (cont'd)
Deliverable 2: PRP Synopsis
Introduction
Site Discussion - 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 - Owner s/Operators
~ PRP name
~ status (current owner, successor, etc.)
~ current address
~ headquarters address, if applicable
~ registered agent
~ president/CEO
~ 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, ATP issues
PRPs -Arrangers (same information as for owners/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 owners/operators)
Provide information in both a PRP summary and a volumetric format similar to the arranger lists as
described above.
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EXHIBIT 1: SUGGESTED PRP
SEARCH REPORT FORMAT (cont'dJ
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 Sections 1.2.5 and
1.2.6), and insolvent or defunct 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 not yet sufficient to characterize
them as PRPs. Present all relevant information here, such as names, addresses, telephone numbers,
basis for inclusion, 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 balancingthe
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.
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Chapter 3 References
Name
Section
Location
Superfund Program
Implementation Manual
(SPIM) Fiscal Year 2017
3.0
httDs://www.eDa.aov/suDerfund/suDerfund
-proa ram-implementation-manual
Transmittal of "Preliminary
Potentially Responsible Party
Search Completion' Measure
Definition for Incorporation
into the Superfund Program
Implementation Manual for
FY 2012 (June 23, 2011)
3.0
httDs://www.eDa.aov/enforcement/auidanc
e-Dreliminarv-DrD-search-comDletion-
measu re-definition-a nd-superfund -
Droaram
Superfund Information
Request Letters
3.3
https://www.epa.aov/enforcement/superfu
nd-information-request-letters
False Statements Act
3.3.1
18 U.S.C. § 1001
http://www4.law.cornell.edu/uscode/18/10
01.html
Federal Debt Collection
Procedures Act
3.3.1
28 U.S.C. 176
htt ps: //www. a po. a ov/fd svs/a ra nu le/USCO
DE-201 l-title28/USCODE-201 l-title28-
DartVI-chapl76
Releasing Information to
Potentially Responsible
3.3.1
httDs://www.eDa.aov/enforcement/auidanc
e-releasina-information-Dms-cercla-sites
Parties at CERCLA Sites
(March 1, 1990)
EPA Regulations Governing
Business Confidentiality
Claims
3.3.3
40 C.F.R. § 2.201 etseq.
htt p s: //www. ecf r. a ov/ca i - b i n/text-
idx?ran=div5&node=40:1.0.1.1.2
Federal Rules of
Evidence 801-817
3.4.1
htt d : //www. law. co r ne 11. ed u /ru les/f re/ ru les.
htm
Federal Perjury Statute
3.4.2
18 U.S.C. § 1621
htt ds : //www. a do. a ov/fd svs/a ra nu le/USCO
DE-201 l-titlel8/USCODE-201 l-titlel8-
partl-chap79-secl621
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Chapter 3 References
Name
Section
Location
Final Guidance on Preparing
Waste-In Lists and Volumetric
Rankings for Release to
Potentially Responsible
Parties (PRPs) Under CERCLA
(February 22, 1991)
3.8
httDs://www.eDa.aov/enforcement/auidanc
e-DreDarina-waste-lists-and-volumetric-
ra n ki na s- release-d ms- waste-a u id a nee
Streamlined Approach for
Settlements With De Minimis
Waste Contributors Under
CERCLA § 122(g)(1)(A)
(July 30, 1993)
3.8
httDs://www.eDa.aov/enforcement/auidanc
e-d e- m i n i m i s-waste-co nt ri b uto rs-
su Derfund -sett lements-st ream lined -
approach
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^ EM SUPERFUND SITE ' ^
iM H »' Em MM
4.0 Follow-up PRP Search 215
4.1 Issue Follow-up Information Request Letters 216
4.2 Compel Compliance with CERCLA § 104(e) 218
4.3 Issue Administrative Subpoenas 221
4.4 Perpetuate Testimony Using Rule 27 224
4.5 Perform ATP Determinations 226
4.5.1 General Policy on Superfund ATP Determinations 227
4.5.2 ATP Information Sources 230
4.5.3 Performing Property Appraisals 237
4.6 Perform Insolvent and Defunct Determinations 239
4.6.1 Definition 239
4.6.2 Insolvent and Defunct Determinations 240
4.7 Perform Waste Stream Analyses 245
4.7.1 Industrial Surveys 245
4.7.2 Process Chemistry Analysis 245
4.7.3 Waste Stream Inventory 246
4.7.4 Mine Sites 247
4.8 Interim-Final Report Preparation and Review 247
4.8.1 Interim-Final Report Follow-up 248
4.9 Pursue Litigation and Cost Recovery 248
References 257
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4.0 Follow-up PRP Search
The potentially responsible party (PRP) search team should analyze
the information collected during the initial phase of the PRP search
• PRP contributions to the site have been determined; and
• each PRP's liability has 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 ensure 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 FRCP Rule 27 testimony.
(See the discussion of FRCP Rule 27 in Section 4.4.);
• waste stream analysis, including industrial surveys, process
chemistry analysis, and waste stream inventory (See the
discussion of waste stream analysis in Section 4.7.);
to determine whether:
• all reasonable leads on PRPs were pursued;
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• miscellaneous tasks, including financial assessments;
corporate research; compelling compliance with CERCLA
§ 104(e) information requests; and orphan share and
insolvent and defunct determinations;
• insurance analysis; and
• other expert analysis, such as independent cost allocation
analysis or waste stream analysis by mining experts.
4.1
Issue Follow-up
Information
Request Letters
As stated in Section 3.3.5, 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 complies only
partially with the initial information request, the initial response
raises additional questions for EPA, or 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 begin 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 § 104(e) questions organized by subject matter are
available at EPA's Superfund § 104(e) Information Request
Questions by Category Web page. (See Chapter 4 References,
p. 257.)
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Specialized questions are listed for the following categories:
Arranaer/Generator
Owner/Operator
Auto Shops
Chemical Manufacturing Plants
Dry Cleaning
General Manufacturer Process
General Question
Grain Fumigants
Innocent Landowner
Landfills
Lead Battery Facilities
Mining Processes
PCB Sites
Solvents
Tar and Oil Byproducts
Waste Oil
Insurance
Ability to Pay PRPs
Brokers
Insurers
Transporters
Financial
Dissolution of Corporation
Estates
General Ability to Pay
General Questions
Individual Ability to Pay
Other Entities
Parent Corporation
Piercing the Corporate Veil
Successor Liability
Trusts
Superfund Recycling Eauitv Act
Batteries
Electrical Equipment
General Questions/Document
Requests
Scrap Metal
Paper, Plastics, and Textiles
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4.2
Compel
Compliance
with CERCLA
§ 104(e)
If a recipient of a CERCLA § 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 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 the recipient an
opportunity to contact EPA with questions or concerns. The
reminder letter also satisfies the notice and opportunity for
consultation requirement of CERCLA § 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 may pursue the following enforcement options:
• issue an administrative order to compel compliance with the
request for responsive written information; or
issue an administrative subpoena pursuant to CERCLA
§ 122(e)(3)(B); 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.
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Administrative Order to Compel Compliance
Under CERCLA § 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 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 may
prepare a referral package to DOJ requesting enforcement of its
administrative order. (See "Model Administrative Order for CERCLA
Information Requests" (September 30, 1994), Chapter 4
References, p. 257.)
Judicial Action to Compel Compliance/Referrals to DOJ
CERCLA § 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 who unreasonably fails to respond to a proper
§ 104(e)(5)(B) demand for information potentially faces substantial
monetary penalties ($53,907 per day effective August 1, 2016) for
violations that occurred after November 2, 2015 and were assessed
on or after August 1, 2016.2 These civil penalties are based on
1 See CERCLA § 104(e)(5)(B)(ii), 42 U.S.C. § 9694(e)(5)(B)(ii);
also United States v. Crown Roll Leaf, Inc., 29 Env't Rep. Cas. 2018 (BNA)
(D. N.J. 1988) (holding that EPA information request was not arbitrary or
capricious); United States v. Pretty Products, Inc., 780 F. Supp. 1488
(S.D. Ohio 1991) (same).
2 The CERCLA § 104(e)(5)(B) penalty is statutory, not a matter of
EPA policy. The penalty is periodically increased pursuant to the Civil
Monetary Penalty Inflation Rule, December 31, 1996. (See Chapter 4
References, p. 257.) The most recent increase was announced at 81 Fed.
Reg. 43091, 43095 (July 1, 2016).
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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 § 104(e)
information request. The region should be prepared to present the
facts of the case when seeking DOJ action to compel compliance.
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 DOJ. 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 § 104(e)(2)(A)-(C);
• the respondent did not comply with the request in a timely
manner; and
• any significant factor, such as more costs incurred, more
time required, or threats to human health and the
environment continued and/or increased as a result of non-
compliance.
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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. Resources to assist in
drafting litigation referrals are available on EPA's intranet site.
43 An administrative subpoena is an information-gathering tool that is
available to the PRP search team. CERCLA § 122(e)(3)(B)
Issue authorizes EPA to issue administrative subpoenas, which require
Administrative live testimony of witnesses (subpoena ad testificandum) or the
production of documents (subpoena duces tecum) deemed
Subpoenas
necessary for performing a non-binding preliminary allocation of
responsibility (NBAR) or "for otherwise implementing" CERCLA
§ 122, e.g., reaching ATP or de minimis settlements under
§ 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 a settlement activity. The
expected testimony/documents do not have to assist EPA in
reaching a settlement with the party being subpoenaed. If the
expected testimony/documents will assist the Agency in analyzing
the potential for settlement with another party connected to the
site, that is sufficient for invoking this authority. The purpose of the
testimony should be clearly set forth in the supporting documents.
The Agency strongly encourages the issuance of administrative
subpoenas during the initial phase of the PRP search, especially
when dealing with recalcitrant persons. 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), both of which may be found on EPA's Use and Enforcement
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of CERCLA Information Requests and Administrative Subpoenas
Web page. (See Chapter 4 References, p. 257.)
Administrative subpoenas may be judicially challenged. Therefore,
it is important to document the rationale for invoking the authority
provided in CERCLA § 122(e)(3)(B). In particular, it is important to
show how the subpoena's issuance 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.
When the Agency issues an administrative subpoena pursuant to
CERCLA § 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 § 104(e) information requests before issuing
administrative subpoenas.3 Information request letters are less
intimidating and generally more conducive to expeditious and
3 Regional consultation with headquarters is not required prior to
issuing an administrative subpoena 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. 257. If the subpoena deviates significantly from the model,
consultation with the Office of Enforcement and Compliance Assurance is
required.
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favorable settlements than administrative subpoenas, but
administrative subpoenas are useful for preserving testimony and
they can be effective with recalcitrant persons.
Witnesses who have received an administrative subpoena are
entitled to receive the same fees and mileage reimbursement that
are paid by 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.
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
§ 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 cited in footnote 3. (See Chapter 4
References, p. 257) The appropriate documents must be prepared
by the case attorney, who will seek any 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.
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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 AR documenting the subpoena
process.
4.4
Perpetuate
Testimony
Using FRCP
Rule 27
Where FRCP Rule 27 May Be Appropriate
Rule 27 of the Federal Rules of Civil Procedure (see Chapter 4
References, p. 257) 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 situations 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. PRP search 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
be an important way to preserve the testimony of these witnesses
in the event they are later "unavailable" under the legal definition
of that term. If you are considering a Rule 27 deposition, be sure to
consult your regional and DOJ counsel before taking any action.
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Use of FRCP 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. The deponent has the right to counsel, may be
cross-examined, and testifies under oath subject to the penalties of
penury. 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 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 § 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
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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
27(a)(1) 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.
In cases where EPA is considering an ATP settlement, EPA
considers competing interests. On one hand, the Agency is charged
with ensuring that contaminated 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
4.5
Perform ATP
Determinations
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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.
EPA's "General Policy on Superfund Ability to Pay Determinations"
(September 30, 1997) (see Chapter 4 References, p. 257) 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
§ 122(g), titled "De Minimis Settlements," specifically authorizes
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. These include guidance on
evaluating ability to pay a civil penalty in an administrative
enforcement action. (See Chapter 4 References, pp. 257-258).
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. For example, although under EPA's policy an applicant's
ability to borrow against the value of a personal residence is a valid
4.5.1
General Policy on
Superfund ATP
Determinations
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option for obtaining settlement funds, the ATP assessment would
not include funds obtained by selling a personal residence as this
would be considered an undue hardship. In addition to determining
the dollar range of a PRP's ability to fund a settlement, the purpose
of an ATP assessment is to identify a number of actions that the
applicant might select from in order to obtain the necessary funds,
without specifying or requiring that the applicant take any
particular course of action.
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.
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.
4 United States v. Bay Area Battery, 895 F. Supp. 1524 (N.D. Fla.
1995).
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• 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. 257)
In seeking an ATP-based settlement, the burden is on the applicant
to prove that it cannot afford to pay all EPA's costs at a site; the
burden is not on EPA to prove that the applicant can afford to pay.
Moreover, an ATP-based settlement will not be allowed if EPA does
not receive all the information it requests from the applicant to
make a thorough ATP assessment. In other words, the applicant
cannot "cherry pick" the information it provides, nor should the ATP
assessment be performed based on incomplete information. EPA's
assessment needs to consider the applicant's complete financial
condition, including present as well as future funding needs. For
example, in the case of an individual the analysis would consider
future potential earnings, which can include reductions in income
during retirement as well as increased or projected uncovered
medical expenses.
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
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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. 258.)
4.5.2
ATP Information
Sources
EPA has developed computer models for analysis of financial issues
affecting enforcement actions. (See Chapter 4 References,
p. 258.) As the models are updated periodically, it is advisable to
consult both web sites to make sure you have the latest versions.
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. NEIC staff with
financial analysis expertise also may be available to conduct
financial analyses.
ABEL Model
ABEL is a computer program designed to evaluate the ability to pay
of firms held liable for environmental penalties or Superfund
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
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tax return data, analysis of private corporations can be performed
using sources such as financial statements, loan applications, and
Dun & Bradstreet (D&B) 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 Ability to Pay Claim
Financial Data Request Form (see Appendix H), which can be
generated from within the model. EPA financial analysts, however,
generally prefer to evaluate up to five years of returns in addition
to using 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.
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.
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(See Appendix I and Chapter 4 References, p. 258 for additional
individual financial data forms that may be useful in lieu of or in
addition to the Individual Ability to Pay Claim Financial Data
Request Form or in special situations.)
MUNIPAY 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:
Financial Statements
• 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 (GAAP) 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
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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 request that each ATP candidate
(business or individual) submit federal income tax returns for the
past three to five years, based on the recommendation of the
financial analyst assigned to review the information, and a
completed financial questionnaire.
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;
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• Form 1120S plus supporting schedules for Subchapter S
corporations (Subchapter S corporations may not have more
than 100 shareholders and must meet other requirements
to qualify for this tax treatment.);
• Form 1065 plus supporting schedules including Schedule
K-l for each partner of 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.).
Reports
• Dun & Bradstreet
D&B reports provide financial information about companies
for a fee. They are frequently used to evaluate
creditworthiness 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.
• Securities and Exchange Commission
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 SEC. These reports provide a
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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 Electronic Data
Gathering, Analysis, and Retrieval (EDGAR) database on the
SEC's Web site.
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
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 also available
from the EDGAR database. (See Chapter 4 References,
p. 258.)
• Annual Shareholder Reports
Annual reports can be useful indicators of the health of a
corporation and can be used to highlight any inconsistencies
between the financial picture the company reports to its
shareholders and the information it provides to EPA via
CERCLA § 104(e) responses.
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Court Records
These are a potential source of information, but locating them
requires someone familiar with courthouse searches. Many state
and local court records are now available on line. Federal records
can be accessed through Public Access to Court Electronic Records
(PACER). (See Appendix F, "Potentially Responsible Party Internet
Information Sources (PRPIIS).")
On-line Sources
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 Appendix F, "Potentially Responsible Party Internet
Information Sources (PRPIIS).") Moreover, EPA has a national
contract with D&B Hoovers™, and many regions have accounts with
CLEAR®, LexisNexis®, and Lexis Advance®.
Information Request Letter Responses
Non-PRPs, such as owners of nearby properties, often have
valuable information about sites and their 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 § 104(e) requests to any party who might have
information, whether or not the party is likely to be named as a
PRP.
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4.5.3
Performing
Property
Appraisals
The Agency may need to assess the monetary value of certain
contaminated real property to suppcrt remedial actions evaluated
cr undertaken in acccrdance with the NCP. Appraisals may be
necessary when imposing a notice of lien under CERCLA § 107 (/)
and subsequently pursuing an in rem action against the property.
Prcperty appraisals may be conducted both before and after
response action. If EPA's response action increases the fair market
value of property, EPA may have a CERCLA § 107(r) "windfall" lien
fcr 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. (See "Interim Enfcrcement
Discretion Policy Concerning 'Windfall Liens' Under Section 107(r)
of CERCLA" (July 16, 2003), Chapter 4 References, p. 258.) If the
Agency is obtaining an appraisal for purposes of acquiring an
interest in real property, it must be conducted in compliance with
the requirements of the Uniform Relocation Assistance and Real
Property Acquisition Act (URA), 42 U.S.C. §§ 4601 to 4655; the
regulations issued thereunder, 49 C.F.R. Part 24; the Uniform
Standards of Professional Appraisal Practice; and the Uniform
Appraisal Standards for Federal Land Acquisitions (the "Yellow
Book"). (See Chapter 4 References, p. 258.) If the appraisal is
needed for purposes other than property acquisition, the URA, its
regulations, and the Yellow Bock do not apply.
Since professional real estate appraisals may be expensive, each
appraisal shculd be specifically authorized by the EPA primary
contact when a contractor is ccnducting 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
one. The researcher should also obtain the names of all Agency and
DOJ personnel who may be using the information cbtained from
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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
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
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performing the property appraisal. Close contact and coordination
should 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. USACE 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.
At sites where PRPs have agreed to perform cleanup (either
remedial action under a CD or non-time-critical removal (NTCR)
activity under an ASAOC), 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).5 (See Chapter 4 References, p. 258.)
This interim guidance applies where:
Definition
• EPA initiates or is engaged in ongoing negotiations for RD,
RA, or NTCR at an NPL site;
• a PRP or group of PRPs agrees to conduct the RD/RA or RA
pursuant to a CD or the RD or the NTCR pursuant to an
ASAOC or CD; and
• an orphan share exists at the site.
5 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 NTCR. 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. 258), which provides the regions with
direction for addressing potential compromises of CERCLA cost recovery
claims due to the existence of a significant orphan share.
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4.6
Perform
Insolvent and
Defunct
Determinations
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The orphan share guidance does not apply at Superfund sites that
only involve owners and operators {i.e., the guidance only applies
at Superfund sites that include arrangers and/or transporters as
PRPs). The guidance also does not apply at federal facility sites.
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
• unaffiliated with any party potentially liable for response
costs at the site.
The orphan share does not include liability attributable to:
• unallocable waste;
• the difference between a party's share and its ability to pay
(the "delta"); or
• 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
Determ in ati ons
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.
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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
insolvent or defunct, e.g., a CERCLA § 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. 258) 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 undue financial hardship, i.e., will prevent a PRP
from paying for ordinary and necessary business expenses or
ordinary and necessary living expenses. If payment is likely to do
so, the proposed settlement amount should be reduced. The undue
financial hardship standard 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;
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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.
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 ORC
attorney. This may save time and prevent duplicative effort. If he
or 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 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, which is 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.
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• 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.
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 petition
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 PRP
search personnel and financial analysts to identify further
steps to take.
• Check 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, making responses to
§ 104(e) information requests regarding ownership and
company viability extremely important.
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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.
• Check to see when the last annual filing was made. If one
has not been made recently, this may indicate that the
corporation is going out of business or has ceased to
operate. It could, however, simply indicate late filing, so
look beyond this record.
• Check to see if the state has revoked a corporate license.
States may revoke corporate licenses if corporations are not
in good standing due to non-payment of the annual fee or
for 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 § 104(e)
requests or financial questionnaires. A potential insolvent or
defunct PRP, like an ATP candidate, may be able to recover
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expenses from other sources, such as insurance,
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 party cannot be considered
insolvent or defunct. Refer to the discussion in Section 3.3.1
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.
4Y The primary focus of an industrial survey is to identify parties who
owned or operated the site and may have contributed hazardous
Industrial
substances to the site. This is accomplished through surveying local
Surveys
businesses, reviewing government records, and reviewing various
industrial manuals and directories. This task is particularly useful
when little information is available about the site from documents,
interviews, and other sources discussed previously, 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
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fi ^ i
has a history of receiving wastes from off-site arrangers. A
thorough knowledge of industrial technology is essential for the
analysis, which should be performed by an environmental scientist
or process chemistry engineer.
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.
The primary objective of performing a waste stream inventory is to
Waste Stream compile an accurate list of wastes that were stored or disposed of
Inventory 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 needs to 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 year
for which there are no records if manufacturing remained at 50
units.
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For mine, mill, and smelter sites, it can be 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 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.
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 provides a complete discussion of the
suggested report format.
An interim-final PRP search report:
• provides justification for notice to a party of potential
liability;
• identifies owners/operators, persons who arranged for
treatment or disposal, and transporters;
• serves to support litigation by identifying and presenting all
the evidence against each party together with an analysis of
potential defenses to liability of each party;
4.7.4
Mine Sites
4.8
Interim-Final
Report
Preparation and
Review
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• 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.
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 § 122(e)(1), which includes the PRP names,
addresses of PRPs that are not individuals, and the volume and
nature of the substances at the site.
4.8.1
Interim-Final
Report Follow-up
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 GNLs and SNLs, 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 §§ 106 and 107 Litigation6
In the case of a cost recovery referral, EPA sends a 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
6 If PRPs do not agree to perform work, whether the RD/RA,
removal, or RI/FS, EPA's first and strong preference is to issue a unilateral
administrative order (UAO). If EPA fails to reach an agreement with the
PRPs to conduct the work, EPA should consider issuing a CERCLA § 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 a judicial action
requesting injunctive relief and/or CERCLA § 106 penalties for
noncompliance. EPA may also initiate a Fund-financed response action.
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$500,000 were spent on the response action.7 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
liability information that meets evidentiary standards, and
thorough and accurate financial analyses;
• ensuring that the AR is complete;
• documenting costs and work performed that 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.
(See the discussion of CERCLA § 107(/) liens in "EPA's Continued
Efforts to Enhance CERCLA Cost Recovery" (July 2, 2010), (Chapter
4 References, p. 258).
7 Regions are free to pursue costs under $500,000, however,
balancing the resources needed to recover them against the amounts that
may be recovered and the likelihood of recovery.
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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. A thorough PRP search is necessary for the success of either
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 pursue
the non-settlors separately for unreimbursed response
costs.
3. If the Agency funds the RD/RA because there was no
settlement, it may seek all costs, including any pre-RD/RA
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 pursue past costs and
seek a declaratory judgment on liability for future costs in
order to satisfy the SOL in CERCLA § 113(g)(2).
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5. Where there are multiple remedial operable units (OUs),
EPA may pursue cost recovery at one and seek declaratory
judgment on liability for its costs at the others, assuming
that the OUs 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 does
subsequently file for bankruptcy. For more information, consult
"Guidance on EPA Participation in Bankruptcy Cases" (September
30, 1997) (Chapter 4 References, p. 258), the "Continued Efforts"
memorandum, or your regional bankruptcy coordinator.
Statute of Limitations
CERCLA § 113(g)(2) states that a cost recovery action must be
commenced:
• 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 § 104(c)(1)(C) for continued response
action; and
• within six years after initiation of physical on-site
construction of the RA, except that if the RA is initiated
within three years after the completion of the removal
action, costs incurred in the removal action may be
recovered in the cost recovery action.
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While CERCLA outlines the general parameters for timing of a cost
recovery action, site-specific issues may be involved in determining
when the statute of limitations (SOL) runs. For example, under
CERCLA § 113(g)(2)(B), removal costs may be pursued as part of
the remedial cost recovery action if the RA is initiated within three
years of completion of the removal. Applying the SOL in this
situation requires site-specific determinations as to when the
removal action was completed and when the remedial action was
initiated.
While EPA generally considers RD to be a removal action, several
courts have held that for SOL purposes, removal ends with the
ROD, and RA begins with the RD. Therefore, to be safe, regions
should use the ROD issuance date as the end point for removal
action and the starting point for remedial action.
At sites where there has been a series of remedial and removal
actions, close attention should be paid to the SOL for each action.
Moreover, whether multiple removal actions at a site are
considered part of one removal action for SOL purposes is both a
case-specific inquiry and an issue on which courts in different
jurisdictions differ. In these situations, regions should consult ORC
and OSRE regarding factual issues and the applicable case law in
their jurisdictions.
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 potential liability for EPA's
cleanup costs. If negotiations result in a settlement, EPA and the
PRPs may enter into an ASAOC or CD whereby the PRPs agree to
reimburse EPA for its costs. If total United States response costs at
a site exceed $500,000 (excluding interest), DOJ must concur on
the terms of the settlement. (See the "Continued Efforts"
memorandum for a discussion of aggressive use of demand
letters.)
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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
the completion date unless the region plans to recover removal
costs at the same time as remedial costs under CERCLA
§ 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 expires. Cost recovery actions for RAs
should be referred to DOJ when physical on-site construction of the
RA begins.
When the SOL 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 SOL either for a specified period or until a
specified event occurs. The period or the event is defined in the
agreement. A tolling agreement must be signed by DOJ on behalf
of the government and by the PRPs. The effect of the agreement is
to provide additional time to work out a settlement in a case by
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. In order to
encourage expeditious negotiations, DOJ ordinarily prefers that
tolling agreements be for a period of six months, and in most cases
will not approve an agreement that extends the SOL more than one
year.
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EPA SUPERFUND SITE
t WOOD TKEA1
PALAfO* STMB
Cost Recovery for Removals
Completing a removal will generally trigger an action to recover the
costs thereof. EPA will seek recovery of all costs if the removal was
Fund-lead, cr oversight costs if it was performed by the FRPs
pursuant to a UAO. (See the "Continued Efforts" memorandum for
more information on using UAOs to "preserve cost recovery
resources.") As a general rule, cost recovery cases involving
removals (except those with CERCIA § 104(c)(1)(C) waivers) are
filed within three years of completion of the removal. If RA 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 "completicn" of a
removal has occurred at a site, and when the SOL begins to run.
Out of an abundance of cauticn, SEMS conservatively defines
removal action completion for SOL purposes as the date on which
the OSC determines that no further on-site activities will be
required. This date may differ from the date of demcbilization of
deanup personnel at the site, as some pcst-removal, on-site
activities may remain to be performed before the OSC determines
that he cr she will not have to return to the site to perfcrm
additional work. The OSC's decision date and the demobilization
date should be documented in a Pdlution Report cr removal
dcseout memorandum. Due to the fact-intensive nature of removal
completion determinations, however, OSRE cr OGC should be
consulted whenever ccncern exists regarding the SOL for ccst
recovery, as an inccrrect determination could 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, cr RD; the
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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.
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 important, such that OSRE or OGC should be
consulted when concern exists regarding the determination of the
date of initiation of physical on-site construction for SOL purposes.
Consultation is critical because a mistaken determination could bar
the Agency from recovering its costs.
Documentation Requirements
EPA guidance describes procedures for documenting cost recovery
decisions. The region should document a decision not to pursue a
cost recovery action in a close-out memorandum, which justifies
the decision and serves as the basis for entering the write-off into
SEMS. Where EPA proposes to settle for less than 100 percent of its
costs and does not plan to pursue non-settling parties for the
balance, this justification should form part of the ten-point
settlement analysis, which is drafted by the site attorney with
assistance from Superfund enforcement staff. The ten-point
settlement analysis serves as a briefing tool for management, who
are being asked to approve the proposed settlement, and as the
basis for entering a write-off into SEMS when a valid rationale
exists for not pursuing unrecovered costs remaining after the
settlement. The close-out memorandum serves the same purposes
when there is no settlement or litigation.
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The memorandum should evaluate the remaining cost recovery
potential at the site so that the region can explain and justify its
decision in response to future audits or inquiries. The region should
place all supporting documentation and financial analyses in the
permanent case file and enter the appropriate basis for not
pursuing cost recovery in SEMS. (See the "Continued Efforts"
memorandum and "Submittal of Ten-Point Settlement Analyses for
CERCLA Consent Decrees" (August 11, 1989) (Chapter 4
References, p. 259) for further discussion of these requirements.)
Additional documentation requirements apply to decisions not to
pursue cost recovery where unaddressed past costs are greater
than $500,000. These requirements are discussed in detail in "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).8 (See Chapter
4 References, p. 259.)
8The ceiling was raised from $200,000 to $500,000 in 2013, but the
documentation requirements have not changed.
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Chapter 4 References
Name
Section
Location
Superfund § 104(e) Information
Request Questions by Category
4.1
https://www.epa.aov/enforcement/su
Derf und-104e-information-rea uest-
auestions-cateaorv
Model Administrative Order for
CERCLA Information Requests
(September 30, 1994)
httDs://www.eDa.aov/enforcement/aui
dance-model-cercla-section-104e5a-
4.2
ad mi nist rati ve-order-information-
col lection
Civil Monetary Penalty Inflation Rule
4.2
40 C.F.R. Part 19
httDs://www.eDa.aov/enforcement/en
vironmental-protection-aaencv-40-cfr-
Darts-19-and-27-civil-monetarv-
Denaltv-inflation
Recommendations Concerning the Use
and Issuance of Administrative
Subpoenas under CERCLA Section 122
(August 30, 1991)
https://www.epa.aov/enforcement/aui
dance-use-and-enforcement-cercla-
4.3
information-reauests-and-
administrative-subpoenas
Guidance on Use and Enforcement of
CERCLA Information Requests and
Administrative Subpoenas
(August 25, 1988)
https://www.epa.aov/enforcement/aui
dance-use-and-enforcement-cercla-
4.3
information-reauests-and-
administrative-subpoenas
Federal Rules of Civil Procedure,
Rule 27, Depositions to Perpetuate
Testimony
4.4
28 U.S.C. App.
htt ps: //www. a po. a ov/fd svs/a ra nu le/U
SCODE-2010-title28/USCODE-2010-
title28-aDD-federalru-duDl
General Policy on Superfund Ability to
Pay Determinations
(September 30, 1997)
4.5.1
https://www.epa.aov/enforcement/aui
da nce-su Derfu nd -a bi 1 itv- Da v-
determinations
Model Notice Approving Reduction in
Settlement Amount Based on Inability
to Pay (April 30, 2008)
4.5.1
htt d s: //cf du b. e Da. a ov/com olia nce/mo
dels/view.cfm?model ID=427
Model Notice Denying Reduction in
Settlement Amount Based on Inability
to Pay (April 30, 2008)
4.5.1
htt d s: //cf du b. e Da. a ov/com olia nce/mo
dels/view.cfm?model ID=428
Chapter 4: Follow-up PRP Search
257
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PRP Search Manual
September 2017
Chapter 4 References
Name
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)
4.5.1
httDs://www.eDa.aov/enforcement/aui
dance-abilitv-Dav-and-de-minimis-
revisions-cercla- sect ion - 122a
Guidance on Evaluating a Violator's
Ability to Pay a Civil Penalty in an
Administrative Enforcement Action
4.5.1
httDs://www.eDa.aov/enforcement/aui
dance-evaluatina-abilitv-pav-civil-
Denaltv-administrative-enforcement-
actions
Penalty and Financial Models
4.5.2
https://www.epa.aov/enforcement/pe
naltv-and -financial-models
Financial Disclosure Statement To Be
Completed by Individual Defendant
4.5.2
www.flmD.uscourts.aov/file/32/downl
oad?token=kHZhEPiO
EDGAR
4.5.2
httD://www.sec.aov/edaar.shtml
Interim Enforcement Discretion Policy
Concerning "Windfall Liens" Under
Section 107(r) of CERCLA
(July 16, 2003)
4.5.3
httDs://www.eDa.aov/enforcement/int
erim-auidance-enforcement-
discretion-concernina-windfall-liens-
cercla-section-107r
Uniform Appraisal Standards for
Federal Land Acquisitions
4.5.3
httDS://www. i ust ice. a ov/file/408306/
download
Interim Guidance on Orphan Share
Compensation for Settlors of Remedial
Design/Remedial Action and Non-
Time-Critical Removals (June 4, 1996)
4.6
httDs://www.eDa.aov/enforcement/aui
dance-orphan-share-compensation-
rdra-and-non-time-critical-removal-
settlors
Addendum to the Interim CERCLA
Settlement Policy Issued on
December 5, 1984
(September 30, 1997)
4.6.1
httDs://www.eDa.aov/enforcement/aui
dance-cercla-settlement-policv-
interim
General Policy on Superfund Ability to
Pay Determinations
(September 30, 1997)
4.6.2
httDs://www.eDa.aov/enforcement/aui
da nce-su Derfu nd -a bi 1 itv- Da v-
determinations
Chapter 4: Follow-up PRP Search
258
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PRP Search Manual
September 2017
Chapter 4 References
Name
Section
Location
EPA's Continued Efforts to Enhance
CERCLA Cost Recovery (July 2, 2010)
4.9
httDs://www.eDa.aov/enforcement/aui
dance-efforts-en ha nce-cercla-cost-
recoverv
Guidance on EPA Participation in
Bankruptcy Cases (September 30,
1997)
4.9
https://www.epa.aov/enforcement/aui
dance-eDa-DarticiDation-bankruDtcv-
cases
Submittal of Ten-Point Settlement
Analyses for CERCLA Consent Decrees
(August 11, 1989)
4.9
httDs://www.eDa.aov/enforcement/aui
dance-suDerfund-settlement-ten-
point-analysis
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)
4.9
httDs://www.eDa.aov/enforcement/aui
dance-documentina-DrD-search-
decision-documents-and-
unadd ressed -cost-recoveries
Chapter 4: Follow-up PRP Search
259
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Appendices
Comptroller Policy Announcement No. 87-17
A
Performance Work Statement for
Enforcement Support Services
B
Checklist of PRP Search Tasks
C
Checklist for Removal/Pre-Remedial Sites
D
SEMS Quick Reference Guide for
Partv Association and Search
E
Potentially Responsible Party Internet
Information Sources CPRPIIS)
F
National PRP Search Enhancement Team
G
Individual Ability to Pay Claim
Financial Data Reauest Form
H
Ability to Pay Individual Request for
Information
I
Acronvms and Abbreviations
J
Glossarv
K
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pa87-17.txt
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
Sep 30, 1987
COMPTROLLER POLICY ANNOUNCEMENT
NO. 87-17
MEMORANDUM
SUBJECT: Interest Rates for Debts Recoverable Under
the Superfund Amendments and Reauthorization
Act of 1986
FROM: David P. Ryan
TO: Assistant Regional Administrators
Management Division Directors
Senior Budget Officers
Regional Comptrollers
This Policy Announcement establishes Agency policy and
procedures for interest to be assessed on debts recoverable under
the Superfund Amendments and Reauthorization Act of 1986 (SARA).
BACKGROUND
Section 107(a) of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (CERCLA) made responsible
parties liable for the costs related to remedial and removal
actions taken under that Act. Section 107(b) of SARA amended
that section to require that amounts recovered under the
authority of section 107(a) accrue interest at the same rate as
interest on investments of the Hazardous Substance Superfund
("Superfund").
The Treasury Department currently invests Superfund monies
in 52-week U.S. Treasury MK Bills (MK-bills) that mature in early
September of each year. When funds are needed for Superfund
activities (e.g., to pay EPA contractors conducting removal
actions), MK-bills are sold and the proceeds are used to pay EPA
costs. When funds are received (e.g., revenues or recoveries
deposited in the Superfund), additional MK-bills of the same
maturity are purchased. Thus, MK-bills of a single annual
maturity provide the basis for assessing interest for Section
107(a) debts.
page break
-2-
POLICY
In accordance with SARA, EPA will assess interest on costs
recoverable under CERCLA section 107(a). Interest will accrue
from the later of (1) the date payment of a specified amount is
demanded in writing, or (2) the date of the expenditure concerned.
The MK-bill yield rate at the time of Treasury's annual
purchase will be the interest rate used for the following fiscal
year in assessing interest on recoverable costs. Like the
securities from which this rate is derived, interest will be
compounded annually. On October 1 of each year outstanding
receivables, which includes interest accrued during the previous
fiscal year, will begin accruing interest at the new rate.
Page 1
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pa87-17.txt
The Financial Management Division will transmit annually the
appropriate rates to all EPA financial management offices as soon
as it obtains the yield rate from Treasury.
INTEREST RATE FOR FISCAL YEAR 1987
The rate of 5.63% will apply for the period October 1, 1986,
through September 30, 1987.
FOR ADDITIONAL INFORMATION
Your servicing financial management office can provide
additional information on EPA's policies and procedures for
preparing billings, calculating interest rates, and other debt
collection questions.
If you have questions on this specific Policy Announcement,
please contact Bob Cluck, Fiscal Policies and Procedures Branch,
at FTS 382-5160.
cc: J. Richard Bashar
Alvin Pesachowitz
John J. Sandy
Vincette L. Goerl
J. Daniel Berry
Edward Reich
Financial Management Officers
FMD Branch Chiefs
END OF DOCUMENT
Page 2
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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 Transactional 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
Task 3 - 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
li
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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
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ACRONYMS
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
CRI
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
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D
DD Decision Document
DNAPL Dense Non-Aqueous Phase Liquid
DOI Department of the Interior
DOJ Department of Justice
DQO Data Quality Objective
E
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 Project Manager
ERCS Emergency Response Cleanup Services
ERNS Emergency Response Notification System
ESI Expanded Site Inspection
V
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 Good Faith Offer
GNL General Notice Letter
II
HASP Health and Safety Plan
HRS Hazard Ranking System
I
IAG Interagency Agreement
IEUBK Integrated Exposure Uptake Bio-Kinetic
IFMS Integrated Financial Management System
IMC Information Management Coordinator
v
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L
LDRs
LOE
LTRA
M
MOA
MOU
MPE
MSW
N
NBAR
NCP
NEIC
NMFS
NOAA
NOD
NOID
NOIPD
NOPD
NPL
NRC
NRT-1
NRT-1A
NRRB
NTC
O
O&F
O&M
oc
OE
OECA
OERR
OGC
OIRM
OLS
OMB
OPA
OSC
OSHA
OSRE
OSWER
Land Disposal Restrictions
Level of Effort
Long-Term Response Action
Memorandum of Agreement
Memorandum of Understanding
Multi-Phase Extraction
Municipal Solid Waste
Non-Binding Preliminary Allocation of Responsibility
National Contingency Plan (National Oil and Hazardous Substances Pollution
Contingency Plan) (Abbreviated as National Contingency Plan in this document)
National Enforcement Investigation Center
National Marine Fisheries Service
National Oceanic and Atmospheric Administration
Notice of Deletion
Notice of Intent to Delete
Notice of Intent for Partial Deletion
Notice of Partial Deletion
National Priorities List
National Response Center
National Response Team Hazardous Material Emergency Planning Guide, 03/87
National Response Team Criteria for Review of Hazardous Materials Emergency
Plans, 05/98
National Remedy Review Board
Non-Time-Critical
Operational and Functional
Operation and Maintenance
Office of Compliance or Office of the Comptroller
Office of Enforcement
Office of Enforcement and Compliance Assurance
Office of Emergency and Remedial Response
Office of General Counsel
Office of Information Resources Management
Office of Litigation Support
Office of Management and Budget
Oil Pollution Act
On-Scene Coordinator
Occupational Safety and Health Administration
Office of Site Remediation Enforcement
Office of Solid Waste and Emergency Response
VI
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OU Operable Unit
OWPE Office of Waste Programs Enforcement
P
P&C Participate and Cooperate
PCOR Preliminary Closeout Report
PDD Pre-Authorization Decision Document
PNRS Preliminary Natural Resource Survey
PO Project Officer
POLREP Pollution Report
PPA Prospective Purchaser Agreement
PPED Policy and Program Evaluation Division
PRN Pre-Referral Negotiation
PRP Potentially Responsible Party
PWS Performance Work Statement
2
QA Quality Assurance
QA/QC Quality Assurance/Quality Control
QAO Quality Assurance Office
QAPP Quality Assurance Project Plan
QAPP/FSP Quality Assurance Project Plan/Field Sampling Plan
QC Quality Control
R
RA Remedial Action or Regional Administrator
RAC Response Action Contract
RAGS Risk Assessment Guidance for Superfund
RAR Remedial Action Report
RCRA Resource Conservation and Recovery Act
RD Remedial Design
RD/RA Remedial Design/Remedial Action
RSD Regional Support Division
REM Remedial Engineering Management
RI Remedial Investigation
RI/FS Remedial Investigation/Feasibility Study
RO Regional Ombudsman
ROD Record of Decision
RPM Remedial Project Manager
RRT Regional Response Team
S
SAIC Special-Agent-In-Charge
SAP Sampling and Analysis Plan
SARA Superfund Amendments and Reauthorization Act of 1986
SCAP Superfund Comprehensive Accomplishments Plan
vii
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SCORPIOS Superfund Cost Recovery Package Imaging and Online System
SDMS Superfund Document Management System
SE State Enforcement
SEP Supplemental Environmental Project
SIP Site Inspection Prioritization
SMOA Superfund Memorandum of Agreement
SMP Site Management Plan
SNAP Superfund National Assessment Program
SNL Special Notice Letter
SPCC Spill Prevention Controls and Countermeasures
SOL Statute of Limitations
SOW Statement of Work
SPIM Superfund/Oil Program Implementation Manual
SSC Superfund State Contract
START Superfund Technical Assistance and Response Team
I
TAG Technical Assistance Grant
TBC To Be Considered
TOM Contract Manager
TRT Technical Review Team
TSCA Toxic Substances Control Act
TST Technical Support Team
U
UAO Unilateral Administrative Order
US ACE United States Army Corps of Engineers
USC United States Code
USCG United States Coast Guard
USGS United States Geological Survey
V
VCP Voluntary Cleanup Program
VE Value Engineering
VOC Volatile Organic Compound
W
WasteLAN Waste Local Area Network
viu
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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
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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.
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• 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
TASK 1 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.
3
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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.
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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
5
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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 (AOLV
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.
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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 (AOL):
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.
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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 (AOL):
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 (AOL):
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.
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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 transactional 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.
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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)(1)(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 (AOL):
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 transactional 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 &
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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
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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.
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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 (AOLV
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.
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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 (AOLV
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.
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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
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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.
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Acceptable Quality Level (AOL):
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 (AOLV
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.
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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.
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TASK 3 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
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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
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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 (AOLV
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
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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.
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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 (AOL):
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.
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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;
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• 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 fAOL):
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.
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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 (AOL):
The Contractor meets all performance standards.
Monitoring Methods:
The EPA COR will review the Contractor's monthly progress reports.
Task 7 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;
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• Arrange and pay for security; and,
• Arrange for transportation and other support for 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
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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 proof read 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.
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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.
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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 (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.
7.6 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.
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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 (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.
7.7 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 (AOL):
The Contractor meets all performance standards.
Monitoring Method:
The EPA COR will review the Contractor's monthly progress reports.
TASK 8 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:
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• 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
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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 fAOL):
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
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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 (AOL):
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
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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
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SOW Performance Standards
Proposed Monitoring Methods Percentage Deduction* AQL Deviation5
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 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 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.
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.
36
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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 DeveloDment of Waste-In Lists. Volumetric Ranking
ReDorts. and Waste-In Transactional ReDorts from PRP
Scarc-li Activities
Protocols are adhered to in all cases where possible. The proto-
cols incorporate standard unit conversion factors.
The Waste-in List accurately represents the supporting documen-
tation in the file. The report identifies the specific sources of in-
formation used to attribute volumes of waste to each PRP.
The record number assigned to a document identifies each docu-
ment source. All double counts are identified (i.e., waste ship-
ments attributed to both generators and transporters).
The report summarizes analyses performed to estimate volumes
of hazardous waste attributable to PRPs including chemical proc-
esses, chemical fate, and waste modeling.
The government may review the Contractor's
self-inspection records and may independ-
ently verify the accuracy of waste-in data en-
tries against a random sampling of transac-
tional source documents from which the vol-
umes were derived.
The EPA COR may perform a random sam-
pling of up to 10% of the information to en-
sure that the standards have been met.
The EPA COR and site attorney will review
the draft and final reports 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.
Exceptions for new
documentation or in-
formation submitted
by the PRP in nego-
tiations.
37
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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-approvedreport 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
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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
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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-
tions); 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 Reauest Letter SuDDort
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
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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)
SpjiivIui*
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 labove.
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
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SOW Performance Standards
Proposed Monitoring Methods
Percentage Deduction*
AQL Deviation**
Task 3- Kxpedited General Knl'orcement 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 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.
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.
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 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.
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.
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
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SOW Performance Standards
Proposed Monitoring Methods
Percentage Deduction*
AQL Deviation**
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 Suooort
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.
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.
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 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 SuDDort
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
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SOW Performance Standards
Proposed Monitoring Methods Percentage Deduction* AQL Deviation5
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 (lost 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.
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 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.
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 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
No deviations are
permitted.
44
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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
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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 Communitv Involvement Administrative
SuDDort
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
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SOW Performance Standards
Proposed Monitoring Methods
Percentage Deduction*
AQL Deviation**
TASK 8 Project Management, Planning and Support
8.1 Project Management. Planning, and SuDDort
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 Oualitv 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
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CHECKLIST OF PRP SEARCH TASKS
[This document is not an official EPA form and its use is not mandatory. It is intended as a sample that oudines types
of information that PRP search personnel may find useful for determining whether a PRP qualifies for an ATP
setdement. To the extent this form and/or its contents are used, you may wish to delete from, add to, or otherwise
modify them, depending on PRP- or site-specific information needs.]
[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 sequences in which tasks are performed should be governed by site strategy rather than the order
listed below.]
Region: Site Name:
Location:
TASK TASK SELECTION CRITERIA/CONDITIONS
Gather and organize the information, review records to extract
PRP information and leads
i_ Files are: j File Location | # of Pages i
I ~ Federal
I ~ State
~ Local
[ ~ Other * [ [ j
* Counties, libraries, museums, etc.
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.
1. ~ RECORD
COLLECTION AND
FILE REVIEW
2. ~ TITLE SEARCHES
Note:
A. ~ Simple Title Search
B. ~ Complex Title Search
C. ~ Unknown Title Search
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.
-1 -
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TASK
TASK SELECTION CRITERIA/CONDITIONS
D. ~ Title Search for
Recorded Instruments
E. ~ Uncertified Copies
F. ~ Certified Copies
G. ~ Chain of Title
H. ~ Property History
Narrative
3. ~ INTERVIEWS WITH
GOVERNMENT
OFFICIALS
4. ~ RECORDS
COMPILATION
5. ~ COMPLIANCE
HISTORY
6. ~ PRP STATUS/PRP
HISTORY
7. ~ PRP NAME AND
ADDRESS UPDATE
8. ~ CERCLA 104(e)
LETTERS
9. ~ FINANCIAL STATUS
Includes deeds, leases, mortgage, 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.
Obtain uncertified copies unless litigation is anticipated
(certified are costlier). If the site ends up in litigation and title is
an issue, obtain certified copies.
Includes deeds, leases, mortgages, liens, death records, wills,
lawsuits and contracts. Obtain certified copies if litigation is
expected and the case attorney requires certified copies for court
admissibility.
A chronological list of title instruments for quick reference to
title transactions over time.
Requested for more complex sites when a detailed narrative
description of property history would assist case development.
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.
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.
-2-
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TASK
TASK SELECTION CRITERIA/CONDITIONS
Develop financial information for (Identify public vs. private companies, etc.)
A. ~ Individual PRPs
B. ~ Partnership
C. ~ Corporation
D. ~ Exempt
Organizations
E. ~ Other
F. ~ CERCLA
104(e)/RCRA
3007(c) Letters
10. ~ HISTORY OF
SITE OPERATIONS
11. ~ REPORT
PREPARATION
12. ~ HISTORICAL
AND CURRENT
AERIAL
PHOTOGRAPHS AND
SANBORN MAPS
13. ~ CERCLA SUBPEONA
AUTHORITY
14. ~ FIELD SURVEY
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.
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.
-3-
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TASK
TASK SELECTION CRITERIA/CONDITIONS
15. ~ INDUSTRIAL
SURVEY
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
provide if no other information is available. May serve as a
starting point of more detailed research into disposal practices of
local industries.
16. ~ PRP FILE REVIEW
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. ~ PRIVATE Interviews with persons known or suspected to possess unique
CITIZEN/PRP information about the site. Interviews can be conducted via
INTERVIEW telephone, or in person at the discretion of the investigator
and/or enforcement specialist. Detailed interviews, when
needed, can be documented by a transcript.
18. ~ EPA
INVESTIGATIONS
19. ~ SEMS
20. ~ WASTE STREAM
INVENTORY
21. ~ PROCESS
CHEMISTRY
ANALYSIS
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.
SEMS 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, arranger, or
transporter). [See SEMS Guide, Appendix F.]
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.
-4-
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TASK
TASK SELECTION CRITERIA/CONDITIONS
22. ~ DATABASE(S)
A. ~ Correspondence
B. ~ Inventory
C. ~ Transactional
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 key word, 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 Arranger Ranking)
23. ~ FINANCIAL
ASSESSMENT
This task provides a more detailed analysis of a PRP's financial
situation than the financial status task.
24. ~ ARRANGER
RANKING
This is usually a work product (printout) from a transactional
database project (see #22 above). The ranking orders arrangers
by waste volume or other comparable unit.
25. ~ PROPERTY
APPRAISAL/
PROPERTY
SURVEY
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 #:
Mailing Address:
-5-
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CHECKLIST FOR
REMOVAL/PRE-REMEDIAL SITES
[This document is not an official EPA form and its use is not mandatory. It is intended as a sample that outlines
types of information that PRP search personnel may find useful for determining whether a PRP qualifies for an
ATP setdement. To the extent this form and/or its contents are used, you may wish to delete from, add to, or
otherwise modify them, depending on PRP- or site-specific information needs.]
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 (CI), 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
Contact Name
Phone #
~
State
~
National Response Center
~
Other:
3. Basic site information was requested to be submitted to the regional office from the
above referral contact:
~ Yes ~ 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. Site Team reviews information to ascertain responsible corporate officers,
registered agents, and principal environmental and/or health and safety
contacts. Examples of information to be reviewed and source, include but are
not limited to the following:
~
U.S. EPAmediafiles(NPDES permits, RCRA information, EPCRA
releases, CAA permits)
~
State mediafiles
~
Local health department files
~
Historical society information/historical photos
~
Newspaper archives
~
Local university archives
~
Sanborn fire insurance maps
~
Other: [insert information type here]
8. Obtain access agreement(s) with last known owner(s) of site property:
ED Yes EH No Date obtained:
9. Identification of the property to be visited:
EH Copy of deed
~ Address:
~ Plat #:
~ Cross Street Location:
-2-
-------
10. 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.
Owner/25 yr
Joe Smith
123 Any Street
City, State 12345
012-345-6789
(Select "Tab" in last cell of row to add new row.)
11. Interviews were conducted with the following contacts:
Interviewee
Association with
Site and Number
of Years
Date
Interview
Conducted
Interviewer
Transcript
Available
Yes/No
John Smith
Owner/29 yrs
03/21/20XX
Jane Jones
Yes
(Select "Tab" in last cell of row to add new row.)
12. Information about records located onsite:
Type of Records*
Location of Records
Condition of
Records**
Name of Person in
Possession of
Records
Letterhead
File cabinet
Good quality
Joe Smith
(Select "Tab" in last eel
of row to add new row.)
* 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
-3-
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13. Are there file cabinets on site? If yes, complete table below.
Number of File Cabinets
Location of File Cabinets
Condition of
Cabinets/Files
(Select "Tab" in last cell of row to add new row.)
14. Were photographs taken? [Note: photographs should conform to accepted
photographic record protocol Refer to TAT, site assessment, and criminal investigators
for EPA photographic protocol]
~ Yes ~ No
List photographs taken:
15. Were drums found at the Site? EH Yes EH No
Number of Drums:
Number of Drums with Labels:
16. Was sampling done? EH Yes EH No
17. Neighbors near the site:
Name
Association
With Site and
Number of
Years
Address
Phone No.
Interviewed and
Date
Yes/No
Joe Smith
Neighbor/12 yrs
123 Street
City, State, Zip
123-456-7890
Yes (8/29/17)
(Select "Tab" in last cell of row to add new row.)
-4-
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18. Additional potential sources for gathering site information:
~ Neighboring Businesses
~ County Recorder:
~ Deed Information
~ Past Tax Information
~ Sidwell Maps
~ Financial Information
~ Financial Institutions
~ Accountant Information
~ Commerce Clearing House (CCH) Publications (Capital Transactions)
~ PRP Information on EPA Databases
~ CERCLIS
~ IDEA
~ FINDS
~ ERNS
~ Electronic Database Review
~
Choice Point
~
Dun & Bradstreet
~
Lexis/Nexis (or Westlaw)
~
Corporate Information
~
Prior lawsuits, bankruptcy filings, SEC filings
~
Internet sources
19. OSC plans for:
~ Removal action
~ Removal scoping
~ Public participation
~ Establish administrative record
-5-
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21. Based on information gathered to date, appropriate enforcement activities
should be taken:
~ Issue information request
~ State an opportunity, in the information request, for the PRPs to provide
information on additional PRPs
~ Initiate title search
~ Review relevant site records
~ Initiate PRP search report
~ Oral/written general notice letters issued to known PRPs
22. OSC prepares Action Memorandum
~ Develop negotiation strategy
~ Prepare draft administrative order on consent (AOC)
~ Negotiate AOC or issue unilateral administrative order (UAO)
[Note: When issuing UAOs, the enforcement team shouldfollow 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 UAO is not issued to all PRPs, if
appropriate. J
22. Site cleanup:
~ PRP-lead
~ Fund-lead
23. Cost recovery phase:
Complete enforcement investigations:
~ Follow-up on earlier PRP search
~ Update title search if necessary Cost recovery activities:
~ Itemized cost summary
~ Send demand letters
~ Cost recovery referral
~ Close-out memorandum (where appropriate, if case is not referred to DOJ)
~ Cost documentation package
~ Work performed documents
-6-
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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.
-7-
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SEMS Quick Reference Guide
Party Details, Site Association & Party Search
May 2017
1 Purpose
The purpose of this quick reference guide is to provide instructions to users for managing party
information and party associations to sites in SEMS. Party information includes party name, address,
party involvement, party type, and liability information for a specific site. Sites the party is currently
associated with are also managed on these screens.
1.1 Accessing Party Information & Site Associations
Users can access party information and site associations in the following ways:
¦ By selecting a site on the SEMS site schedule and then selecting the Party Association/Search
drop-down from the Site Schedule menu navigation (Figure 1).
SEMS Site Management
Home ~ Site Management ~ ' Stte ScftedujJ'J
Edit Site Schedule
Site Details
EPA I
Street Nan
Site Schedule
Party Assooatjon/Search
Land Reuse
Environment Indicators)
Remedy Decisions
Figure 1. Party Association/Search Menu Item
By selecting the Manage Party Information drop-down from the Site Management menu
navigation (Figure 2) and using the various search filters to search for a party among all parties
entered in SEMS.
SEMS Site Management - Site Search
n
Home ~ |
Site Management H Site Schedule »"
S
Site List
Custom Site Search
Edit Site Detail(s)
Compliance by Site
Manage Section(s)
¦N
S
Manage Party Information
1
May 2017
2 DCN: SEMS-15811.009-01-2017-MngPartylnfo-1.0
-------
SEMS QRG Manage Party Information
Figure 2. Navigation Menu for Manage Party Information
2 Party Association/Search Screen
The Party Association/Search screen allows SEMS users to view and manage party information for the
selected site. There are two tabs (Figure 3):
1. Parties Currently Associated to the Site
~ Note that users can access the Manage Party Information module from this tab
2. Additional Parties
Party Assodation(s)
Site: ILN000510056 TEST SITE 31
Parties Currently Associated Additional Parties
Currently Assigned Parties
Party Name: |
Searci |
Clear |
Viw ^ Format - | Number of Parties: 1 | J|!
j|l 1
-------
SEMS QRG Manage Party Information
2.1.1.1.1 Summary Tab
On the Summary Tab, Users see a summary of the data in the Manage Party Information module:
summary of the selected Party Information, including Party Name, Address, and Party Type; Associated
Sites; Contacts; and Activities.
Manage Party Information
Site Name: ILN000510056 TEST SITE 01
Site ID: 0510056
Party Name: TESTPRP1
Party ID: 2270017
Summary Party Details Associated Sites
Contacts
Summary
Name: TEST PRP 1
Facility Name:
Address: 123 MAIN STREET
County:
City/State/Zip: METROPOLIS NJ 08612
Party Type: Federal Agency
2.1 Associated Sites
2.1 Contacts
2.1 Activities
Figure 4. Manage Party Information, Summary Tab
2.1.1.1.2 Party Details Tab
On the Party Details tabs, users are able to enter and edit the Party Name, address, and contact
information; Involvement Type; Liability Indicator; and Party Type. Users select the Save button
after entering the required data.
Save
May 2017
3
DCN: SEMS-15811.009-01-2016-MngPartylnfo-1.0
-------
SEMS QRG Manage Party Information
Manage Party Information
Site Name: ILN000510056 TEST SITE 01
Party Name: TEST PRP 1
| Site Associations kJ Party Search |
Site ID: 0510056
Party ID: 2270017
Summary Party Details Associated Sites Contacts
Party Details
1 Party Name: IflESTPRP 1
( City: | METROPOLIS
* Address: 1123 MAIN STREET
* State: | Sew Jersey
Phone: |
Facility: |
1 Zip Code 108612
County: I—Select One— |v|
Country: |— Select One —
s Involvement Types:
* Involvement Type(s)
Select
Owner
0
Operator
~
Transporter
~
Generator
~
104e Info. Request
~
Noticed/Enf. Action
~
Non-Settlor
~
Adjacent (Contiguous) Property Owner
~
Arranger
~
Attorney - federal government
~
V
Please select a Liability indicator:
O Liable Party O Non-Liable Party® P
MadeO Undetermined
Party Type(s)
| Select
County/Parish Agency
~
Federal Agency
0
Financial Institution
~
Individual
~
Municipality
~
Non-Profit Organization
~
Private Company
~
Public Utility
~
School
~
State Agency
~
V
1 JnlcncAvn
n
Figure 5. Manage Party Information, Party Details Tab
2.1.1.1.3 Associated Sites Tab
There are three features on the Associated Sites tab that allow users to:
¦ View the list of sites currently associated with the selected Party
¦ View a list of available sites that may be associated with the selected Party
¦ Select an available site to associate to a Party and enter the required association information
May 2017
4
DCN: SEMS-15811.009-01-2016-MngPartylnfo-l.O
-------
SEAAS QRG Manage Party Information
Manage Party Information
Site Name: ILN000510056 TEST SITE 01
Party Name: TEST PRP 1
Site ID: 0510056
Party ID: 2270017
Associated Sites
Site Association
Sites Currently Associated to Party:
View ~ Format - • ! Freeze
COSDEN CHEMICAL COATINGS CORP.
TEST
TEST SITE
TEST SITE 01
1 Maximize | <}U Wrap
Available Sites:
View ' Format»
j Freeze Maximize | $j] Wrap
) Site Associations £3 Party Search
Spill ID
BURLINGTON
EPA ID
NJD000565531
TMP000001380
TST123456789
ILN000510056
Site ID
0200022
0521537
0120015
0510056
r 1 i i i t i i
Select
Site Name
Region
State
Spill ID | County
EPA ID
O
"NEW ARMY AVIATION SUPPORT
Region 2
Puerto Rico
PRSFN0204194
0204194
o
#1 BRUNSWICK QUADRANGLE
Region 4
Tennessee
SHELBY
TND980726616
0403911
o
#1 CLEANERS
Region 9
California
LOS ANGELES
CAN000909554
0909554
o
#1 OLD SANITARY LANDFILL TILLMAN ROAD
Regions
Indiana
ALLEN
1ND980897862
0501828
o
#1 RAVINE UNDER LAKE MONROE
Region 5
Indiana
MONROE
IND980825657
0501825
o
*16 RED OPEN FIELD SES-16
Region 4
Tennessee
SHELBY
TND980726608
0403910
o
#2 BRUNSWICK QUADRANGLE
Region 4
Tennessee
SHELBY
TND980726665
0403912
o
#2 FELGER ROAD DUMP
Region 5
Indiana
ALLEN
1ND98G897870
0501829
o
#2 MULE HOLE AT BENNETT QUARRY
Region 5
Indiana
MONROE
IND98O825608
0501824
Please select a
2 Involvement Types:
* Involvement Type{s)
Select
~
Operator
~
A
Transporter
~
Generator
~
104e Info. Request
~
Noticed/Enf. Action
m
Non-Settlor
u
Adjacent (Contiguous) Property Owner
~
Arranger
~
Attorney - federal government
u
V
Please select a Liability indicator:
O Liable PartyO Non-Liable PartyO Not PRP Determination Made® Undetermined
Figure 6: Manage Party Information, Associated Sites Tab
2.1.1.1.4 Contacts Tab
The Contacts tab (Figure 7) allows users to add a new contact for the party or edit information about
existing contacts.
Existing contacts appear in the table. When users select the row of the contact, the information appears on
the form below where they may edit the information.
To add a new contact, users select the Add Contact button and complete the fields. The following fields
are required: First Name, Last Name, Address, City, State, Zip Code and Role.
Users select the Save button
Save
when complete.
May 2017
5
DCN: SEMS-15811.009-01-2016-MngPartylnfo-1.0
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SEMS QRG Manage Party Information
Manage Party Information
Site Name: ILN000510056 TEST SITE 01
Party Name: TEST PRP l
(jjj Site Associations Party Search
Site ID: 0510056
Party ID: 2270017
Summary
Party Details
Associated Sites
Contacts
Contacts
View» |
ff Maximize
Rrst Name
Last Name
Tide
! Primary Phone
Primary Email | Address
No data to display.
Add Contact 1 Save Caned
Figure 7. Contacts Tab
2.1.2 Additional Parties
The Additional Parties tab is available for users to search for and select an existing party to associate to
the selected site or to access the Manage Party Information screen to add a new party that may then be
associated to the site.
2.1.2.1 Associate Additional Parties to a Site
Users can search for and select additional parties to associate with a site. To find a party, users can
navigate through the list of parties in two ways:
¦ By searching on Party Name, Party Alias, City, State, and the Global Notice indicator (Figure 8)
¦ By selecting the pagination buttons: First, Previous, Next, Last
Select I
Users select the radio button ——in the Select column next to the relevant Party Name; and select an
Involvement Type and Liability Indicator to describe the party's association with the site (Figure 8).
Users select the Save and Associate to Site button 5ave and Associate to Site | to save par^y to the Site or
select the Reset button to revert the values back to their original value.
Parties Currently fcsocicted
Additional Parties
v Search for Additional Parties:
Nome; Lebl
Global Noticed? [] State:
TZ] Search | Reset |
v Search Results
View -r First I -rev Next Last I The search criteria returned 78 results. Shewing 78 from page 1/1
Select | Party Name
Facility Name I Street Address
Global Noticed?
<•; TEST PRP i
123 MAIN ST1EET
METROPOLIS
rtease »e*ect one or it
" Ifwufcenwit T
7<0«putef
Geioa&i
Jfri# Infa.
ftoo-'ietfof
((.coyjous) prceerty
Altoney • teCerd uuvwnnwl
Allon^v - niKlniniMiii nl
~
D
~
~
D
~
~
a
~
~
n
Pifiv vlrrt .i I InhiUty in/liratnr
O O H,»'' J Pfr
May 2017
Figure 8. Additional Parties Tab
6 DCN: SEMS-15811.009-01-2016-MngPartylnfo-1.0
-------
SEMS QRG Manage Party Information
2.1.2.2 Add a New Parly
The Party Details tab within the Manage Party Information module is displayed when users select the
Add New Party button
Add New Party
from the Additional Parties tab located at the bottom right-hand
corner of the screen. Users can enter information about a new party to be associated to the site (Figure 9),
including Party Details (Party Name, Address City, State, and Zip Code are required), Involvement Type,
and Liability Indicator.
Party Drtalk
• Party Name:
Atom
' Address:
Phones
F.vdlty"
Please select one or more Involvement I ypes:
* Iranfremw* Typefr) | Mat |
Una*
•City: r
" Slate:
• Zip Code
3
Cmlntyi —UtetlW—3
Country; —meet one —
"3
Oprfttnr
Transcccter
10«e Info. Request
Ku(ud/Ent. Adkn
Nw>-SeiUw
Xftytrrtl (Corftlpjaut) Preprrty Ownft
Mmgrr
Attorney federal government
ATtivr^v - muTM-rtal nnwwnnvni
Plr.iw wlrrt a I kthllrty ladlratnr:
O Party® Non UiMe PartyO ** P
leO llndrtrmwd
Party TyyeW
CoureWVanah Agency
J — 1
~
heJaal AgaK.y
u
A
firurwal LibtiUAKri
Mirtid
~
~
Mjr**ifcy
~
Non rtnftr
~
Pr*«te UxrcHTf
~
PubkUOfcty
~
School
a
Slata Agency
~
n
V
Sj*| OKd|
Figure 9. Manage Party Information, Party Details Tab
Users select the Save button
Save
to add the new party or select the Cancel button
Cancel
to exit the
screen. User can navigate to the Site Associations screen by selecting the Site Association button
; and the Party Search screens by selecting the Party Search button
O Site Associations
o Party Search
3 Manage Party Information by Searching for a Party Among All
Parties
After selecting the Manage Party Information option from the Site Management top navigation menu,
users can view the list of all parties in the SEMS Site Management application, filter the list, and select to
edit the Party Details (Figure 10).
Search for Parties
Name: testprp
~ Stale. f~
_a^J _e^J
Search Result*;
Vew--
First | Prev Next
Last The search criteria returned 1 results. Showing 1 from page 1/1
Maximize
Select
Party Name
Facility Narre | Street Address
|Alias Name
lOty
| State
| Gbbal Ncticed?
~
May 2017
7 DCN: SEMS-15811.009-01-2016-MngPartylnfo-1.0
-------
SEMS QRG Manage Party Information
Figure 10. All Parties, Search for Parties Screen
3.1 View 8: Filter All Parties
All Parties in the Site Management application are listed by default. Users can filter the list of Parties by
typing in the Party Name, Alias, and City; selecting the Global Noticed flag; and selecting a State. The
filters are inclusive: the Party must meet all the criteria entered in order to be displayed in the Search
Results table. Users can change the columns displayed in the Search Results table using the Manage
Columns feature.
3.2 Party I nformation
~
next to the Party Name in the
Users can edit the details for the Party by selecting the edit button
Search Results table. The application displays the Party Details screen for the selected Party. In
addition, users can disassociate an existing site on this screen, or select to associate a Site to the selected
Party.
3.2.1 Edit Party Details
Users can edit the Party Name, Alias, Address, City, State, Zip Code, and Party Type on the screen
(Figure 11). In addition, users can navigate to the Party Search by selecting the Party Search button
Party Search
Party Details Q Party Search
Party Name:
TEST PRP 1
Party Types
1 Select |
Alias:
TEST
County/Parish Agency
~
51 Address:
123 MAIN STREET
Federal Agency
Financial Institution
~
Phone:
Individual
~
Facility:
Municipality
~
Email:
Non-Proftt Organization
~
Private Company
~
'City:
METROPOLIS
New Jersey ~v~]
Public Utility
~
¦ State:
School
~
* Zip Code
08612
State Agency
~
County:
— Select One — 1 v|
Unknown
~
Country: — Select One — 0
Save Reset
vj Party Site Associations Associate Site
View » Maximize
Site Name
EPA ID
State
Site Spill ID
NPL Status
Non NPL Status Noticed at Site?
~
~
COSDEN CHEMICAL COATINGS CORP.
NJD00056S531
02
NJ
02P8
Currently on the Fi
No
~
~
TEST
TMP000001380
OS
Not Valid Site or I...
No
~
TEST SITE
TST123456789
01
Not Valid Site or I...
Status Not Specified No
~
TEST SITE 01
ILN000510056
05
IL
Not Valid Site or I...
Not a valid site or... No
Disassociate Party from Site |
Figure 11. Party Details Screen
3.2.2 Party Site Associations
In the Party Site Associations table, users can disassociate a Party from the selected site and select to edit
the Party Information for the site.
May 2017 8 DCN: SEMS-15811.009-01-2016-MngPartylnfo-1.0
-------
SEMS QRG Manage Party Information
To disassociate an existing site from the selected Party, users select the checkbox next to the
Party Name (Figure 12) and then select the Disassociate Party from Site button
Disassociate Party from Site
To edit the Party Information for a site, users select the edit button
next to the Site Name.
This navigates users to the Manage Party Information module for the selected site.
^ Party Site Associations
Associate Site
View »
j-jji Maximize
1 Site Name
EPA ID
| Region
State
Site Spill ID
NPL Status | Non NPL Status
| Noticed at Site?
~
y COSDEN CHEMICAL COATINGS CORP.
NJD000565531
02
NJ
02P8
Currently on the Fi...
No
~
TEST
TMP000001380
05
Not Valid Site or I...
No
~
y TEST SITE
TST123456789
01
Not Valid Site or 1... Status Not Specifi
No
~
y TEST SITE 01
ILN000510056
05
IL
Not Valid Site or 1... Not a valid site or
. No
Disassociate Party from Site |
Figure 12. Party Site Associations Section
3.2.3 Associate Site to Party
To associate a site to the selected Party, users select the Associate Site button
Associate Site
The
application displays a pop-up window that allows users to search for a site to associate to the Party
(Figure 13). Users select the green plus sign
# 01TESTSITE 01TEST5ITE
01TESTSITE 01TESTSITENAME
EPA ID
Site Name
06
08
Region | State
Select Site
EPA ID:
View
Close
Maximize
Name: OltestJ
Apply |
Figure 13. Select Site to Associate Pop-up
After users select to associate the Site, the application displays the Add Party Site Association screen
(Figure 14). On this screen, users select one or more Involvement Types, and one Liability Indicator.
The default Liability Indicator is 'Undetermined' However users should always select the appropriate
May 2017
9 DCN: SEMS-15811.009-01-2016-MngPartylnfo-1.0
-------
SEMS QRG Manage Party Information
liability indicator i.e., Liable Party, Non-Liable Party, Not PRP Determination Made or Undetermined.
Users select the Save button
,ave II to save the association.
Add Party Site Association
Party ID: 2270017
^ Party Details ^ Party Search
Party Name: TEST PRP 1
e Involvement Types:
* IiivulvcnicrilTypc(b)
5cl«.l
Owner
~
A
Operator
~
Transporter
~
Generator
~
lOie info. Request
~
Ncticed/Enf. Action
~
Ncn-Settior
~
Adjacent (Contiguous) Property Or/ner
~
Arranger
~
Attorney - federal government
~
V
flttnmw - miinif inal nrv/pranv>nt
n
Please select a Liability indicator:
O Liable Party O Non-Jable PartyO Not P*P Deterrrination Made® Undetermined
Save Cancel
Figure 14. Add Party Site Associations
Users can select the Party Details button
Party-
Details
about the Party and the Party Search button
selected Site.
o Party Search
to navigate to the screen to edit the information
to find another Party to associate with the
May 2017
10 DCN: SEMS-15811.009-01-2016-MngPartylnfo-1.0
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Current through September 2017
Table of Contents
Business Information 2
EPA Resources - Public 8
EPA Resources - Internal 10
Government Agencies 13
Law, Legal Sites 16
Investigative Resources 18
Maps and Aerial Photos 25
Mining Site Specific Resources 26
Real Property 28
Technical Information 29
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Current through September 2017
Business Information
The Public
Register
Online
http://www.annualreportservice.com/
Free directory of online annual reports.
Annual
Reports and
SEC filings
U.S.
Securities
and
Exchange
Commission
http://www.sec.20v/ed2ar/searched2ar/webusers.htm
Company information, shareholder
information, and SEC filings including annual
reports.
Annual
Reports
http://www.annualreports.com/
Free directory of online annual reports.
Intelligize*
https://www.intelli2ize.com/
News collections, regulatory insights, and
powerful analytical tools for compliance and
transactional professionals
American
Bankruptcy
Institute*
http://www.abiworld.or2//AM/Template.cfm?Sectio
n=Home
Numerous online resources including
headlines, news, meeting information, court
opinions and other bankruptcy info.
Subscription is required.
Bankruptcy
Public
Access to
Court
Electronic
Records
(PACER)*
http ://www.pacer. 20 v/
Access to federal court documents.
Registration is required. Fees are generally
$.08 a page.
* Denotes a fee for service
Page 2
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Current through September 2017
Company
Profiles and
Information
Proquest
Dialog*
www.proauest.com
Subscription service allowing detailed search
of hundreds of trade journals and market
sources.
Corporate
Information
*
http ://www.corporateinformation. com/home, aspx
Information on companies in 55 different
countries. Free snapshots reports as well as
more comprehensive reports for a fee.
Corporation
Wiki
www.coiDorationwiki.com
Claims to have summaries on over 20 million
companies.
Dun and
Bradstreet*
http ://www.dnb. com
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.
Hoovers
Online*
http: //www. ho overs. c om
Source of company information, including
financials and links to websites. Free
snapshot reports and more comprehensive
reports available for a fee.
Mergent
Intellect
http://www.mergentintellect.eom/index.php/search/i
ndex
Mergent Intellect: Powered by Hoover's™, a
Dun & Bradstreet Solution, Mergent Intellect
offers access to private and public U.S and
international business data, industry news,
facts and figures, executive contact
information, and the ability to access industry
profiles and much more.
* Denotes a fee for service
Page 3
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Current through September 2017
Compliance
Information
Occu.
Safety and
Health
Admin.
(OSHA)
http://www.osha. gov/pls/imis/establishment.html
Search for information on OSHA inspections
and violations.
Corporate
Affiliates
Dun and
Bradstreet*
http ://www.dnb. com
Financial information on many companies.
Lexis
Corporate
Affiliations
*
http://www.corporateaffiliations.com/
Database of relationships between companies.
Corporate
Financial
Information
Hoovers
Online*
http: //www. ho overs. c om
Financial information on many companies.
Motley Fool
http://www.fool.com/
A variety of financial information.
Mergent*
http://www.mer2entonline.com/lo2in.php
A variety of tools available. This site requires
a subscription.
Yahoo!
Finance
http://finance.vahoo.com/
Financial news and information.
Corporate
Records
E-Secretary
of State
http://www.e-secretarvofstate.com/
Free link to States' SOS websites.
* Denotes a fee for service
Page 4
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Current through September 2017
Corporate
Records
(cont'd)
National
Association
of
Secretaries
of State
htto://www.nass.or2/state-business-
National SOS organization. Provides links to
every State under Business Services section.
services/corporate-registration/
Search
Systems
htto://t)ublicrecords.searchsvstems.net/United States
Free Public Records bv State/
Free link to public records by state, county, or
city.
Coordinated
Legal Tech
htto://www. coordinatedle2al.com/SecretarvOfState.
html
Similar to NASS, provides a link to the
Secretary of State in each State as well as
information about the cost.
Lexis*
advance.lexis.com
www.lexisnexis.com
Pay service, provides one-stop access to
corporate records for most states (Delaware
and NJ not covered).
International
Business
Global 2000
htto://www.forbes.com/2lobal2000/
Forbes list of the World's 2000 biggest public
companies.
British
Columbia*
https://www.bconline.gov.bc.ca/
Access to Land Titles, Property Assessments,
BC Companies, registrations under the
Personal Property Security Act (i.e. Liens and
Security Agreements), and a range of other
useful information services.
* Denotes a fee for service
Page 5
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Current through September 2017
International
Business
(cont'd)
Industry
Canada
https://www.ic.gc.ca/app/scr/cc/CorporationsC
Search for Federally incorporated Canadian
companies.
anada/fdrlCrpSrch.html?locale=en CA
Canadian
Stock
Exchange
http://www.sedar.com/
Access to most public securities documents and
information filed by public companies in Canada.
Corporate
Information
http ://www.corporateinformation. com/home, as
m
Search for information about companies in 55
different countries.
Canadian
Business
http: //www. i c. 2C. c a/e ic/s ite/c cc -
rec.nsf/eng/home
Search for information on Canadian companies.
Kompass
http: //www. kompas s. c om
Search for information about companies from 70
different countries.
Mergent
Online*
http://www.mer2entonline.com/lo2in.php
Obtain information on international companies,
including annual reports.
Ministry of
Mining
http://www.empr.20v.bc.ca/MINING/GEOSCI
ENCE/Pages/default.aspx
Mining reports from the British Columbia Ministry
of Mining.
Oncorp
Direct
http://www.oncorp.com/
Search for information about corporations in
Ontario, Canada.
UK
Company
Registration
https://www.20v.uk/2et-information-about-a-
companv
Select Find Company Information to search for
companies in England, Wales, Northern Ireland,
and Scotland.
Companies
in the UK
http://www.companiesintheuk.co.uk/
General info on companies in the UK.
EuroPages
http: //www. europ a2e s. c 0. uk/ #
A Business to Business search engine with
information on more than 500,000 businesses
Kyckr*
https://portal.kvckr.eu/home.aspx
Download information on company registrations in
many countries.
* Denotes a fee for service
Page 6
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Current through September 2017
Manufacturing
information
Industry
guide
http ://www.thomasnet. com/
Search by product service, company name, brand
name or industry.
SIC Codes
http://www.osha. gov/pls/imis/sicsearch.html
Obtain industry specific information by SIC code.
Searchable by keyword as well.
NAIC
Codes
http://www.census.gov/eos/www/naics/
Obtain industry specific information by NAIC and
SIC code. Searchable by keyword as well.
News
Business
Week
http://www. businessweek.com
A weekly business news magazine that has an
online issue with the information more frequently
updated.
Journal of
Business
http: //www. b iz i ournal s. com/
This is nation's largest publisher of metropolitan
business journals and updates websites for 41 print
business journals.
The Street
http: //www .the stre et.com
Investment news.
Wall Street
Journal
http://online.wsi.com/home-pa2e
International market and economic news.
Non-Profits
Guidestar
http ://www2. guidestar. org/
Provides detailed information on non-profits,
including IRS Form 990. Free to register.
Additional information available with premium
membership, $350/mo.
* Denotes a fee for service
Page 7
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Current through September 2017
EPA Resources - Public
Enforcement
https ://www.epa. gov/enforcement
EPA's Compliance and Enforcement website.
Economic Models
https://www.eDa. 20v/enforcement/penaltv-
and-financial-models
EPA's link to all financial computer models,
which evaluate a PRP's ability to pay cleanup
costs.
Environmental Response
Team
https ://www.eoa. aov/ert
EPA's Environmental Response Team's website.
Environmental Terms and
Acronyms
https://iaspub.epa. sov/sor internet/resistrv/te
rmreg/searchandretrieve/termsandacronyms/s
earch.do
A glossary of environmental terms, abbreviations
and acronyms.
EPA Libraries
https://www.epa. aov/libraries
Provides the ability to search EPA libraries for
specific information and/or publications.
Finding Potentially
Responsible Parties
https://www.epa. gov/enforcement/finding-
potentiallv-responsible-parties-prp
EPA's PRP Search website.
Hazardous Waste Clean Up
Information
http: //www. c lu- in. or 2/
Contaminated Site Clean-up Information.
Provides information about innovative treatment
and site characterization technologies to the
hazardous waste remediation community.
Links to State
Environmental Agencies
https ://www.epa. 20v/home/health-and-
environmental-a2encies-us-states-and-
EPA's web link to state environmental Agencies.
territories
National Enforcement
Training Institute (NETI)
https ://www.epa. 20v/compliance/national-
enforcement-trainin2-institute-neti-elearnin2-
center
Listing of classes that are provided by EPA's
enforcement training institute.
* Denotes a fee for service
Page 8
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Current through September 2017
National Locator
http://cfDub.em. 20v/locator/index.cfm
EPA's electronic phone book.
National Priority List
https ://www.epa. gov/superfund/superfund-
national-priorities-list-npl
Provides information concerning sites that are
proposed, listed and/or deleted from the National
Priorities List.
Office of Site Remediation
Enforcement (OSRE)
Information Request Letters
https://www.epa. gov/enforcement/superfund-
information-reauest-letters
Links to EPA 104(e) Information request letters and
standard questions.
OSC website
https ://response. epa. gov/
EPA's web site for Removal Actions.
PRP Search Manual
https://www.epa. gov/enforcement/report
-prp-search-manual-2009-edition-2011-
addendum
Link to EPA's PRP Search Manual.
Superfund
Enforcement Guidance
Documents
http://cfpub.epa.gov/compliance/resourc
es/policies/cleanup/superfund/
Link to Superfund guidance documents.
Superfund Enterprise
Management System
(SEMS)
https ://www.epa. gov/enviro/sems-
overview
Publicly available access to EPA's Superfund
Enterprise Management System.
Superfund Records
Collections
https://semspub.epa.gov/src/search
EPA's Superfund Administrative Record
Collections.
Search for Superfund
Sites Where You Live
https://www.epa. gov/superfund/search-
superfund-sites-where-vou-live
Link to various web locations that provide
information concerning the location of
hazardous substances within a community.
* Denotes a fee for service
Page 9
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Potentially Responsible Party Internet Information Sources
(PRPIIS)
Current through September 2017
EPA Resources - Internal
CERCLA Enforcement
Project Manager Handbook
http ://intranet.epa. aov/oeca/osre/tools/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 (OSRE)
Intranet
http ://intranet.epa. aov/oeca/osre/index.html
Home page for OSRE's Intranet.
Office of Superfund
Remediation and Technology
Innovation
htto ://intranet.eoa. aov/oerrinet/
Office of Superfund Remediation and Technology
Innovation main website.
OSRE Subject Matter
Contact Roster
http://cfint.rtpnc.epa.gov/ioic/sme/
Roster identifies whom to contact in OSRE
regarding more in-depth information. The topics
are specific to cleanup enforcement and site
remediation.
* Denotes a fee for service
Page 10
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Potentially Responsible Party Internet Information Sources
(PRPIIS)
Current through September 2017
Financial Information
Calculators
Yahoo! Finance
htto://finance. vahoo.com/calculator/index
A variety of financial calculators.
Financial
Models
EPA Enforcement
Models
httos://www. eDa.gov/enforcement/Denaltv-and-
financial-models
Download BEN, ABEL, INDIPAY,
MUNIPAY, and PROJECT.
Home
Yahoo Homes
https://www.vahoo.com/news/tagged/realestate/
Values
Zillow
htto://w w w. z ill o w. com/
Interest
rates;
industry
discount
Federal Reserve
httos://www. federalreserve.gov/data.htm
Current and historical information on interest
rates, industry discount rate, etc.
rates
Investment
Information
MorningStar*
htto://www. morningstar.com/?r) gid=hetabhome
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.
Loan rates
Bankrate.com
htto ://www.bankrate. com/
Current mortgage and other loan rates.
Loan.com
htto ://www.loan. com/
Current mortgage and other loan rates.
* Denotes a fee for service
Page 11
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Current through September 2017
Municipalities
Munifilings.com*
http://www.munif1lin2s.com/munif1lin2s/Index
Action.do
Budget, annual reports, other information
related to municipalities, school districts, and
many municipally owned or operated entities.
Registration and search is free, pay per report.
City-Data
http: //www. citv-data. com/
Useful Site for Municipal ATPs.
Non-Profits
Guidestar
http: //www2. guidestar. org/
Provides detailed information on non-profits,
including IRS Form 990. Free to register.
Additional information available with premium
membership, $350/mo.
Salary
Salary.com
http://www.salarv.com/index.htm
Salary comparisons by profession and location.
* Denotes a fee for service
Page 12
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Current through September 2017
Government Agencies
Bureau of Economic Analysis
http: //www. bea. 20 v/
Link to various economic indicators.
Bureau of Justice Statistics
http: //www. bi s. gov/
Crime statistics and court statistic information;
no individual or company information.
Bureau of
Land
Management
Global Records
http://www.glorecords.blm.gov/
Search Federal land records, surveys, plats, field
notes, status, etc.
Land and
Mineral Use
http://www.blm.gov/lr2000/
Provides reports on BLM land and mineral use
authorizations for oil, gas, and geothermal
leasing, rights-of-ways, coal and other mineral
development, land and mineral title, mining
claims, withdrawals, classifications, and more
on federal lands or on federal mineral estate
Bureau of Prisons
http: //www. bop. gov/
Link to the Bureau of Prisons. It includes the
ability to search for inmates who have been
located in federal prisons.
Census Bureau
http: //factfinder2 .census. go v/faces/nav/i sf/pages
Link to United States census information.
/index.xhtml
Census Bureau (Pre-set profiles
of communities)
http: //censtats .census. go v/pub/Profiles. shtml
Link to pre-established sets of census
information for communities in the United
States.
Courts (district, appeals,
bankruptcy)
http://www.uscourts.gov/court locator.aspx
Link to federal court information.
Department of Interior —
Bureau of Land Records
http://www.glorecords.blm.g0v/search/default.a
spx
Searchable database of BLM's General Land
Office Records
* Denotes a fee for service
Page 13
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Current through September 2017
Department of Justice
(attorneys)
http://www.iustice.gov/usao/
Link to information on the United States
Attorney's Office.
Department of Labor
http://www.bls.gov/
Link to the Department of Labor. Provides
information concerning various economic
indicators.
Federal Election Commission
http://www.fec. 20v/finance/disclosure/norindse
a.shtml
Individual contributions to political campaigns.
Federal Reserve Board
http://www.federalreserve.gov/econresdata/defa
ult.htm
Link to the Federal Reserve Board's economic
research information.
Financial Crimes Enforcement
Network
http: //www. fincen. gov
Main web link to the Department of Treasury's
Financial Crimes Enforcement Network. This
Site now includes the Money Services Business
information formerly available at
www.msb.gov.
Government Phone Numbers
https://www.usa.gOv/federal-agencies/a
Listing of federal state and local government
phone numbers.
Government Printing Office
https://www. gpo. gov/fdsvs/
Main link to the Government Printing Office.
Useful access portal to all U.S. government
publications.
Internal Revenue Service
http: //www. irs. gov
Main access point for information provided by
the Internal Revenue Service.
National Archives
http: //www. archives. gov/
Main link to the National Archives.
National Criminal Justice
Reference Service
http: //www. nc i rs. go v
Federally funded resource offering justice and
substance abuse information.
* Denotes a fee for service
Page 14
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Current through September 2017
Nuclear Regulatory
Commission T racking
https://www.nrc.gOv/securitv/bvproduct/ismp/n
Search for complex NRC sites and expired NRC
licenses.
sts.html
Office of Surface Mining
Reclamation and Enforcement
https: //www. osmre. aov/resources. shtm
Provides links to OSM's databases and other
websties on abandoned mines, applications,
permits, operators, and environmental violations
at mines, maps and geospatial and natural
resource information,
Occupational
Safety & Health
Administration
Index to site
http: //www. osha. 20 v
Main link to the Office of Safety and Health
Administration.
Inspection
Information
http://www.0sha.20v/0shstats/index.html
Link to OSHA inspection and accident
investigation information.
Office of Patents &
Trademarks
https: //www. uspto. 20v/trademark
Main link to information concerning patents and
trademarks.
Securities and Exchange
Commission (EDGAR)
http://www.sec.20v/ed2ar/searched2ar/companv
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.
search.html
State & Local Government
http: //www. state lo cal 20 v. net/
State, County, and City government websites.
US State & Local Government
http: //www. usa. 20v/
Link to federal, state and local websites.
U.S. Marshals Service
https: //www. usmarshals. 20 v//
The U.S. Marshals Office can assist EPA by
serving notices and may accompany EPA staff
in questionable locations.
* Denotes a fee for service
Page 15
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Current through September 2017
Code of
Federal
Regulations
Gov't
Printing
Office
htto ://www. access. st)o. aov/nara/cfr/cfr-table-
Searchable CFR database from 1996.
search.html
Cornell
University
htto://www. law. cornell.edu/cfr/text
Searchable CFR database.
Code of Federal
Regulations, Federal
Register, and more
htto://www.heinonline.or2/HOL/Welcome?collec
tion=fedreg
ABAjournals, most cited journals, criminal
justice journals, intellectual property library,
CFR from 1938, FRfrom 1936, U.S. Attorney
General opinions, legislative history,
Presidential and Supreme Court libraries,
statutes.
Federal Acquisition
Regulation
httos ://www. acquisition. 20 v/far/
FAR regulations and GSA forms library.
Federal Register
https://www.federalregister. gov/
Federal Register from 1994 with links to
libraries for FRs prior to 1994.
Lawyers
Martindale
locator
htto://www. martindale. com
Find a lawyer.
Find a
lawyer
htto://www. findlaw.com
Find a lawyer.
Bar
associations
http: //www. b e stc as e. c om/st at eb ar. htm
State bar association links.
* Denotes a fee for service
Page 16
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Current through September 2017
Legal
research
pages
Westlaw*
htto: //www. we stl aw. com
Online legal research service for legal and law
related materials and services.
Comprehensive databases of law, business,
public records and news. Your legal office
may already have an account.
Lexis*
advance.lexis.com
www.lexisnexis.com
Justia
htto://dockets. iustia.com/
Search Federal Court dockets.
Legislation
pending in
Congress;
votes, bills,
laws
Senate
htto ://www. senate. 20V
U.S. Senate.
House
http://www.house.gov
U.S. House of Representatives.
Legislative information
(The Library of Congress)
htto s: //www. consre s s. 20 v/
Bills, resolutions, congressional record,
committee reports, searchable by bill text.
Supreme Court Decisions
htto://www. law. Cornell, edu/suoct/
Supreme Court decisions, briefs, links to briefs,
oral argument recordings 1990 - present.
U.S. Code
U.S. House
http://uscode.house.20v
U.S. House of Rep.; searchable code from
1988; link to Federal Register.
Cornell
University
httos ://www.law. Cornell, edu/suoremecourt/text/h
ome
Searchable U.S. Code.
U.S. Courts
htto://www.uscourts.20v/court locator.asox
Links to all U.S. Courts. Documents are
available using PACER.
* Denotes a fee for service
Page 17
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Potentially Responsible Party Internet Information Sources
(PRPIIS)
Current through September 2017
Investigative Resources
Almanacs
http://www.infoplease. com/index, html
Miscellaneous information with links to
almanacs, atlases, encyclopedias and more.
Archived
webpages
Cyber
Cemetery
http://govinfo.librarv.unt.edu/default.htm
Search for archived copies of government
webpages.
Way Back
Machine
http://www. archive. org/ web/web .php
Search for archived copies of websites.
Anywho
http://www.anvwho.com/reverse-lookup
Reverse phone.
AT&T
https ://www.att. com/2en/2eneral?pid= 12046
Find a business or person using AT&T's
Directory Assistance.
Email
addresses
http://mv.email.address.is/
Searches Yahoo!, Switchboard, W.E.D,
InfoSpace, and Look4U, as well as reverse
email address search and tips on finding email
addresses.
Directories
Freeality
http://www.freealitv.com/findc.htm
Search public records by category or state or
nationwide.
Infobel
http ://www. infobel. com/en/world/index, aspx
Find anyone anywhere in the world. Available
in multiple languages.
Reverse
address
directory
https://people.vellowpa2es.com/whitepa2es/addre
ss
Reverse address, phone.
Search
Systems
http://publicrecords.searchsvstems.net/index.php
General Information Search (i.e. zip code, area
code).
* Denotes a fee for service
Page 18
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Current through September 2017
Superpages
http://www.superpa2es.com
Business Directory
Directories
(con't)
Switchboard
http: // www. s wit chb oard. c om
Personal and Business Directory.
Toll Free
Numbers
http://inter800.com/
Toll free number directory.
Whowhere
http: // www. whowhere .com
White and yellow pages.
FedStats
https://fedstats.sites.usa.20v/
Statistics from 100 government agencies.
Federal
Gov't
Directories
Louisiana
State
University
Libraries
http://www.lib.lsu.edu/gov/index.html
Federal agency directory.
USA.gov
http ://www.usa. 20 v/
"Government made easy."
Yahoo
https://search.vahoo.com/?fr=people
Search for people and businesses information.
Find people
Searchbug
http://www.searchbug.com/peoplefinder/
Personal and Business directory with
additional services if you submit an
email address in which the information
can be sent.
Westlaw*
http://web2.westlaw.com/si2non/default.wl?fn=%
5Ftop&newdoor=true&rs=WLW 1 l%2E04&vr=2
%2E0
Search for legal information, as well as
parties to lawsuits. Your legal office
may have an account.
Clear*
https://clear.thomsonreuters.com/index.isp
Search for business or personal
information with an address or name.
This service was previously known as
ChoicePoint, Autotrack, and CP Clear.
* Denotes a fee for service
Page 19
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Current through September 2017
Public
Data*
http://www. oublicdata.com
Search criminal, motor vehicle, drivers'
license, sex offenders, voter, property
tax, federal, Secretary of State, and
professional license from select states.
Experian/
MetroNet*
http s: //www. infolookuo .exoerian. c om/metr
onet/
Credit Reports, business searches, and
personal searches.
Find
People
Lexis*
advance.lexis.com
www.lexisnexis.com
People finder, real property searches,
liens and encumbrances, etc.
(con't)
Accurint*
http://www.accurint.com/
Lexis product, provides comprehensive
information on individuals with one
search.
Federal
Prisoners
http://www.bop.gov/inmateloc/
Locate inmates in Federal prisons.
Zaba
http://www.zabasearch.com/
People and address research.
New
Ultimates
http: //www. ne wult imate s. c om/
People, phone number, and address
research.
Investigator's Guide to
Sources of Information
http://www.fas.org/irp/gao/osi-97-2/soi ch4.htm
List of investigative databases.
Library of Congress
http://www.loc.gov/index.html
Largest library in the world; services include
Ask a Librarian, photo duplication; see FAQs.
* Denotes a fee for service
Page 20
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Current through September 2017
Linda Hall Library
httt) ://www. lindahall. ore
Library of science, engineering and
technology; document delivery services;
searchable catalog; reference and search
services.
Marine
Vessels
NOAA
htto://www.st.nmfs.noaa. aov/stl/CoastGuard/Ves
selByName.html
Searchable database of vessel names and
information.
Boat Info
World
http://www.boatinfoworld.com/
Searchable database of vessel names and
information.
USCG
httt)://c2mix.usc2.mil/PSIX/PSIXSearch.ast)x
Searchable database of vessel names and
information.
Municipal-
ities
City Data
httt) ://www.citv-data. com/
Includes photos, statistics, maps, home values,
crime data, etc.
Munifilings.
com*
htto://www. munif1lin2s.com/munif1lin2s/IndexAc
tion.do
Budget, annual reports, other information
related to municipalities, school districts, and
many municipally owned or operated entities.
Registration and search is free, pay per report.
National Archives
httt)://www.archives. 20v/index.html
Searchable databases of historical information.
National Response Center
httt): //nrc. us c 2. mi 1/
Query reported releases of hazardous
substances by company or location.
(Temporarily disabled while they deal with
security vulnerabilities. Summary date is
available.)
News-
papers
US
Newspapers
httt) ://www.usnol. com/
Selected newspaper links in selected states.
Newspapers,
com
www. ne ws t) at) ers. c om
Collection of historic - present day
newspapers.
* Denotes a fee for service
Page 21
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Current through September 2017
Personal
Property
Krause
Books
http: //www. kraus ebo oks. c om/
Antiques, collectibles values. Registration
required.
Personal
Property
(cont'd)
EBay
http ://www.ebav. com/
Online auction.
Kelley Blue
Book
http: // www. kbb .com/
Car values.
Kovels.com
httt): // www. ko ve Is .com/
Antiques, collectibles values. Registration
required.
Nada
Guides
http://www. nadasuides.com/
Car, boat, RV, motorcycle, mobile home
values.
Photo
editing Tool
JPegSnoop.
com
http://ipegsnoop.en.softonic.com/
Free software that claims to analyze photos and
determine whether they have been edited.
Public
Records
Directories
BRB
Publication
http://www.brbpub.com/free-public-records/
Public records databases by state; links to free
databases (similar to Search Systems before it
became a pay service).
Search
Systems
http://publicrecords.searchsvstems.net/
Lists 38,541 searchable public record
databases; no direct link unless a paying
member, but will show which databases are
free of charge.
Regional Information
Sharing Systems*
https://www.iir.eom/Initiatives/#information
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 22
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Current through September 2017
Sanborn
Maps
EDR Net*
http://edrnet.com/Drods/sanborn-maps/
Order Sanborn Fire Insurance maps.
Library of
Congress*
http://www.loc.20v/rr/2eosmap/sanborn/
Over 6,000 maps available online. Over
675,000 available in person. The searchable
database includes only those sheets added since
1981.
Local
Universities
(examples:
Penn State,
University
of Florida,
University
of Utah, UC
Berkley)
https://libraries.psu.edu/about/libraries/donald-w-
hamer-maD-librarv/sanborn-fire-insurance-maDS
Check with universities in your State - many
have extensive collections of area Sanborn
Maps available.
htto: //ufdc. ufl. e du/s anb orn
httDs://collections.lib.utah.edu/search?facet setna
me s=uum sfim
httD://www.lib.berkelev.edu/libraries/earth-
sciences-librarv
Local Public
Libraries
(examples:
Chicago, IL;
Ann Arbor,
MI; Everett,
MA; Iowa;
Georgia)
httD://www.chiDublib.or2/resource/illinois-
sanborn-maDs/
httD://www.aadl.or2/node/9308
httD://www.statelibrarvofiowa.or2/services/online
-resources/resources/sanborn-lo2in
httD ://dl2.2alileo.us2. edu/sanborn/?W elcome
Many state libraries and public libraries in
large urban areas have collections of Sanborn
Maps available.
* Denotes a fee for service
Page 23
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Potentially Responsible Party Internet Information Sources
(PRPIIS)
Current through September 2017
State and
Local Gov't
Directories
GovEngine.
com
htto://www. 20ven2ine.com/
Federal, state and local government
information.
State and
Local
Government
on the Net
htto://www. statelocal20v.net/index.cfm
Directory of state, county, city government
websites.
State
Agencies
httt)://wikis.ala.or2/2odort/index.oho/State A2en
cv Databases
Links to State agencies.
U.S.
Geological
Survey
Earth
Sciences
Library
http://librarv.us2s. 20V/
The largest earth science library in the world.
Zip codes
USPS
httDs://tools.usDs.com/2o/ZiDLookuoAction!inDut
.action
Find zip code for an address.
* Denotes a fee for service
Page 24
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Potentially Responsible Party Internet Information Sources
(PRPIIS)
Current through September 2017
Maps and Aerial Photos
Bing Maps
http: //www. bing. com/maps/
Similar to Google Earth. View 3d aerial photos,
maps, and more. Free service but requires a
software download.
Enviromapper
http://www. eoa. aov/emefdata/ em4ef.home
U.S. EPA's interactive maps and aerial
photography to display facility-based
information from the Envirofacts Warehouse.
FreeaUty.com
http://www.freealitv.com/maps.htm
Directory of map-related sites.
Google Earth
http://www.2002le.com/earth/index.html
Satellite imagery, maps, terrain and 3D
buildings. Free service but requires a software
download.
Google Maps
https://www.2002le.com/maps
Maps and directions. Limited aerial photos.
Historic Aerial Photos
http: //www. hi storic aerial s. c om/
Obtain older aerial photos for some areas. Free
to use, photos available for purchase.
iT ouch Map
www. itouchmap. com
Maps and Utilities for the PC, Mac, iPhone, iPod
touch and Smartphones
Mapquest
http://www.mapauest.com/
Maps and directions.
Track Plotter
http://www.tractplotter.com/
Map by latitude and longitude.
U.S.
Geological
Survey
National
Geologic Map
Database.
https: //n2mdb .us 2s. 20 v/n2mdb/n2mdb home .html
National Geologic Map Database. Search USGS
maps.
National Map
http: //nationalmap. 20v/
Maps of North America
* Denotes a fee for service
Page 25
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Current through September 2017
Abandoned Mine Land
Inventory System
http ://amlis. osmre. go v/Default. aspx
Computer system used to store, manage, and
report on the Office of Surface Mining
Reclamation and Enforcement's Inventory of
Abandoned Mine Land Problems
Applicant/Violator System
htto s: //avs s. osmre. 20 v/
DOI, Office of Surface Mining database.
Information on applicants, permittees,
operators, application and permit records, as
well as unabated or uncorrected environmental
violations of SMCRA are maintained in this
nationwide database.
Coalex Research Reports
htto://www.osmre.20v/resources/Coalex.shtm
Reports are products of research and analysis
conducted on specific issues relating to the
regulation of Surface Mining Control and
Reclamation Act of 1977.
Department of Interior —
Bureau of Land Records
htto ://www. slorecords.blm. aov/search/default. aso
X
Searchable database of BLM's General Land
Office Records
Land and Mineral Use
htto://www.blm.2ov/lr2000/
Provides reports on BLM land and mineral use
authorizations for oil, gas, and geothermal
leasing, rights-of-ways, coal and other mineral
development, land and mineral title, mining
claims, withdrawals, classifications, and more
on federal lands or on federal mineral estate.
National Mine Map
Repository
htto: //mmr. 0 smre. 20 v/
Searchable index of OSMRE's mine map
repository.
* Denotes a fee for service
Page 26
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Current through September 2017
University of Idaho
http://www. lib. uidaho.edu/soecial-collections/
This collection has information about the Day
Mining Co. and associated mining companies.
Also personal records of Jerome Day.
University of Utah
http: //www. 1 ib. Utah, edu/
Mining company records—covering Utah,
Idaho, Wyoming
University of Washington
http://www.lib.washington.edu/specialcollections/
Major resource for rare and archival materials
covering a broad range of topics, formats, and
periods. Research strengths include the history
of the Pacific Northwest, Alaska and Western
Canada.
University of Wisconsin,
Ecology and Natural
Resources Collection
http://di2ic0ll.librarv.wisc.edu/Ec0NatRes/Search.
Searchable collection of Mineral Yearbooks
1933-1993.
html
* Denotes a fee for service
Page 27
-------
Potentially Responsible Party Internet Information Sources
(PRPIIS)
Current through September 2017
Real Property
ABC's of Real Estate
htto: //www. re ale state abc. com/
Real estate and mortgage resources.
DataQuick*
htto://www.corelo2ic.com/landin2-
oaaes/dataauick. asox
Real property ownership, appraisal information.
HomeSeekers.com
htto://www. homeseekers.com/
Residential property sales and value information.
Netronline.com
htto ://www.netronline. com/
Real estate information and public records
search. Also includes aerial photos resource.
RealEstate. com
http: //www. re ale state .com/
Residential property sales and value information.
Rent-O-Meter
http ://www.rentometer. com
Residential rental comparison.
Zillow
https://www.zillow.com/
Real estate information and property values.
The information available varies by region
searched.
* Denotes a fee for service
Page 28
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Potentially Responsible Party Internet Information Sources
(PRPIIS)
Current through September 2017
Technical Information
Agency for
Toxic
Substances
and
Disease
Registry
(ATSDR)
Hazardous
Substances
http://www.atsdr.cdc.20v/SPL/ index, html
Hazardous substance and toxicological
information.
ToxFAQs
http://www.atsdr.cdc.20v/toxfaas/index.asp
ToxFaqs: Frequently asked questions
about contaminants found at hazardous
waste sites.
Cleaner Solutions Database
http://www.cleanersolutions.ors/?action=vendor search&pa
2e=0&submit=Submit&sortbv=product&sortasc=l
Search for products based on vendor-
recommended contaminant, substrate
and equipment information.
Efunda (Engineering
F und amentals)
http://www.efunda.com/processes/processes home/process.c
fin
Descriptions of industrial processes.
Material
Safety Data
Sheets
(MSDS)
MSDS.com
http://www.msds.com/
MSDS search by chemical, product
name.
Military specification
lubricant products
http ://www.mtpinc-
exporter.com/chemicals/chem mil spec.htm
Listing by specification number and
title of specification.
* Denotes a fee for service
Page 29
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Potentially Responsible Party Internet Information Sources
(PRPIIS)
Current through September 2017
National Library of
Medicine
htto://sis.nlm.nih. aov/enviro.html
Environmental health and toxicology
information. Also, access to TOXNET,
a collection of databases on hazardous
chemicals, toxic releases, and
environmental health.
Radiochemistry Society
htto://www. radiochemistrv. ora/oeriodictable/
Periodic table.
Toxnet- Toxicology Data
Network
htto://toxnet.nlm.nih. aov/
Data on toxicology, hazardous
chemicals, environmental health, toxic
releases.
US Metric Association
htto://www.us-metric.ora/commonlv-used-metric-svstem-
Metric conversions.
units-symbols-and-prefixes/
* Denotes a fee for service
Page 30
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NATIONAL PRP SEARCH ENHANCEMENT TEAM
September 2017
Region
Team Member/Contact
Address
Region 1
Donna Murray
(p)(617) 918-1409
James Israel
(p)(617)918-1270
U.S. EPA, Region 1
5 Post Office Square - Suite 100 (OSRR07-2)
Boston, MA 02109-3912
Region 2
Sharon Kivowitz
(p)(212)637-3183
Robert J. Montgomery
(p)(212) 637-4332
U.S. EPA Region 2
Sharon: Office of Regional Counsel, 17th Floor
Robert: ERRD-PSB, 18th Floor
290 Broadway
New York, NY 10007-1866
Region 3
Carlyn Prisk
(p)(215)814-2625
U.S. EPA Region 3
Office of Enforcement, Cost Recovery Branch
1650 Arch Street (3HS62)
Philadelphia, PA 19103
Region 4
Blake Sterling
(p)(404)562-8850
Johnny Morgan
(p)(404)562-8822
U.S. EPA Region 4
Superfund Enforcement and Information Management
Branch, Superfund Division
61 Forsyth Street, S.W.
Atlanta, GA 30303
Region 5
Carolyn Bohlen
(p) (312) 886-6541
Lance Vlcek
(p)(312)886-4783
U.S. EPA, Region 5
Superfund Division
Enforcement Services Support Section #2
77 West Jackson Blvd. (SE-5J)
Chicago, IL 60604
Region 6
Stephen Capuyan
(p)(214)665-2163
Robert Werner
(p)(214)665-6724
U.S. EPA Region 6
Enforcement Assessment Section
Superfund Division (6SF-AC)
1445 Ross Avenue (Fountain Place)
Dallas, TX 75202-2733
Region 7
Michele Drennen
(p)(913)551-7624
Anna Rock
(p) ( 913) 551-7451
Milady Peters
(p)(913)551-7882
U.S. EPA Region 7
Regional Counsel
11201 Renner Blvd.
Lenexa, KS 66219
Region 8
Mike Rudy
(p)(303)553-6332
Shawn McCaffrey
(p))(303)312-6515
U.S. EPA Region 8
Office of Enforcement, Compliance, and Environmental
Justice (8ENF-RC)
1595 Wynkoop Street
Denver, CO 80202-1129
Region 9
Kim Muratore
(p)(415)972-3121
Carl Brickner
(p) (415) 972-3814
U.S. EPA Region 9
CERCL A Enforcement
Superfund Division
75 Hawthorne Street, SFD-7-5
San Francisco, CA 94105
Region 10
Stephanie Ebright
(p)(206)553-0774
U.S. EPA Region 10
1200 6th Avenue, Suite 900, ORC-113
Seattle, WA 98101
Headquarters
Nancy Deck, Team Leader
(p)(202)564-6039
Office of Site Remediation Enforcement
1200 Pennsylvania Avenue, N.W. (2273-A) Washington,
DC 20460
Headquarters
Monica Gardner, Director, Policy and
Program Evaluation Division, Manager
Advisor
(p)(202)564-6053
Office of Site Remediation Enforcement
1200 Pennsylvania Avenue, N.W. (2273-A) Washington,
DC 20460
Headquarters
Victoria Van Roden, Chief, Program
Evaluation and Coordination Branch
(p)(202)564-4235
Office of Site Remediation Enforcement
1200 Pennsylvania Avenue, N.W. (2273-A) Washington,
DC 20460
Headquarters
Clarence Feather son
(p)(202)564-4234
Office of Site Remediation Enforcement
1200 Pennsylvania Avenue, N.W. (2272-A) Washington,
DC 20460
Headquarters
Stephen Keim
(p)(202)564-6073
Office of Site Remediation Enforcement
1200 Pennsylvania Avenue, N.W. (2273-A) Washington,
DC 20460
Headquarters
Nadya Spice
(p)(202)564-3408
Office of Site Remediation Enforcement
1200 Pennsylvania Avenue, N.W. (2273-A) Washington,
DC 20460
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INDIVIDUAL ABILITY TO PAY CLAIM
Financial Data Request Form
[This document is not an official EPA form and its use is not mandatory. It is intended as a sample that outlines
types of information that PRP search personnel may find useful for determining whether a PRP qualifies for an
ATP setdement. To the extent this form and/or its contents are used, you may wish to delete from, add to, or
otherwise modify them, depending on PRP- or site-specific information needs.]
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:
-1 -
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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.)
Period of Payment (check one)
Source
Gross Pay
(Pre-Tax)
Weekly
Monthly
Quarterly
Yearly
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)
-2-
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PART II. 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.
i Period of Payment (check one) j
Expense
Amount J Weekly
i
i
Monthly
Quarterly
Yearly J For Agency
| Use Only
A. Living Expenses
1. Rent
i
i
i
i
2. Home Maintenance
i
i
i
i
3. Auto fuel,
Maintenance, Other
i
i
i
i
i
i
i
i
4. Utilities
i
i
i
i
a. Fuel (gas, oil,
wood, propane)
i
i
i
i
i
i
i
i
b. Electric
i
i
i
i
c. Water/Sewer
i
i
i
i
d. Telephone
i
i
i
i
5. Food
i
i
i
i
6. Clothing, Personal
Care
i
i
i
i
i
i
i
i
7. Medical Costs
i
i
i
i
B. Debt Payments
1. Mortgage Payments
i
i
i
i
2. Car Payments
i
i
i
i
i
i
3. Credit Card
Payments
i
i
i
i
i
i
i
i
4. Educational Loan
Payments
I
i
i
i
I
i
i
i
C. Insurance
1. Household Insurance
i
i
i
i
i
i
2. Life Insurance
i
i
i
i
3. Automobile
Insurance
I
i
i
i
i
I
i
i
i
i
4. Medical Insurance
i
i
i
i
-3-
-------
i Period of Payment (check one) i
Expense
Amount i Weekly
i
i
Monthly
Quarterly
Yearly i For Agency
! Use Only
D. Taxes
1. Property Taxes
i
i
i
i
2. Federal Income
Taxes
i
i
i
i
i
i
i
i
3. State Income Taxes
i
i
i
i
4. FICA
i
i
i
i
E. Other Expenses
1. Childcare
i
i
i
i
i
i
2. Current School
Tuition/Expenses
i
i
i
i
i
i
i
i
3. Legal or Professional
Services
I
i
i
i
i
I
i
i
i
i
4. Other (itemize on
separate page)
i
i
i
i
i
i
i
i
TOTAL CURRENT
EXPENSES
i
i
i
i
i
i
i
i
-4-
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PART 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 entries with a "B".
1. BANK ACCOUNTS (Checking, NOW, Savings, Money Market, CDs, etc.)
Name of Bank or Financial Institution
Type of Account
Current Balance
For Agency Use Only - Total Current Balance in Bank Accounts
2. INVESTMENTS (Stock, Bonds, Mutual Funds, Options, Futures, Real Estate
Investments Trusts (REITs), etc.)
Investment
Number of Share or
Units
Current Market
Value
For Agency Use Only - Total Current Market Value of Investments
3. RETIREMENT FUNDS AND ACCOUNTS (IRA, 401(k), Keogh, vested interest in
company retirement fund, etc.)
Description of Account
Estimated Market
Value
For Agency Use Only - Total Current Market Value of Retirement
Funds and Accounts
4. LIFE INSURANCE POLICIES (Whole Life, Universal Life, etc.)
Policy Holder
Issuing Company
Policy Value
Cash Value
For Agency Use Only - Total Market of Life Insurance Policies
-5-
-------
5a. VEHICLES USED FOR COMUTING PURPOSES (Cars, Trucks, Motorcycles, etc.
Only list up to two vehicles used for commuting purposes.)
Model
Year
Estimated Market
Value
For Agency Use Only - Total Estimated Market Value of Vehicles
5b. OTHER VEHICLES (Cars, Trucks, Motorcycles, Recreational Vehicles, Motor Homes,
Boats, Airplanes, etc.)
Model
Year
Estimated Market
Value
For Agency Use Only - Total Estimated Market Value of Vehicles
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
Estimated Market Value
For Agency Use Only - Total Estimated Market Value of
Personal Property
7a. REAL ESTATE - PRIMARY RESIDENCE (Home - List only one such residence)
Location
Description of Property
Estimated Market
Value
For Agency Use Only - Total Estimated Market Value of Real Estate
7b. OTHER REAL ESTATE (Land, Buildings, Land with Buildings)
Location
Description of Property
Estimated Market
Value
For Agency Use Only - Total Estimated Market Value of Real Estate
-6-
-------
8. OTHER ASSETS
Type of Asset
Estimated Market
Value
For Agency Use Only - Total Other Assets
9. CREDIT CARDS AND LINES OF CREDIT
Credit Card/Line of Credit
(Type)
Owed To
Monthly
Payment
Balance Due
For Agency Use Only - Total Balance Due on Credit Cards and Lines of Credit
10. VEHICLE LOANS (Cars, Trucks, Motorcycles, Recreation Vehicles, Motor Homes,
Boats, Airplanes, etc.)
Vehicle (Model and Year)
Owed To
Balance
Due
Monthly
Payment
Start
Date
End
Date
For Agency Use Only - Total
balance Due on Vehicle Loans
11. FURNITURE AND HOUSEHOLD GOODS LOANS
List Item
Owed To
Balance
Due
Monthly
Payment
Start
Date
End
Date
For Agency Use Only - Total Balance Due on Furniture and Household
Goods Loans
12. MORTGAGES AND REAL ESTATE LOANS
Type of Loan
Owed To
Property
Secured Against
Balance
Due
Monthly
Payment
Start
Date
End
Date
For Agency Use Only - Total Balance Due on Mortgages and Real
Estate Loans
-7-
-------
13. OTHER DEBT (Amounts due to individuals, fixed obligations, Taxes Owed, Overdue
Alimony, Child Support, etc.)
Type of Debt
Owed To
Balance
Due
Monthly
Payment
Start
Date
End
Date
For Agency Use Only - Total Balance Due on Other Debt
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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
YES
NO
1. Do you have any reason to believe that your
financial situation will change during the next year?
2. Are you currently selling or purchasing any real estate?
3. Is anyone (or any entity) holding real or personal
property on your behalf (e.g., a trust)?
4. Are you a party in any pending lawsuit?
5. Have any of your belongings been repossessed in the last three
years?
6. Are you a Trustee, Executor, or Administrator?
7. 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. Have you declared bankruptcy in the last seven years?
10. Do you receive any type of federal aid or public assistance?
Explanations for any of the above questions with a "YES" answer
Question
Number
Explanation
-9-
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Ability to Pay
Individual Request for Information
[This document is not an official EPA form and its use is not mandatory. It is intended as a sample that outlines types
of information that PRP search personnel may find useful for determining whether a PRP qualifies for an ATP
setdement. To the extent this form and/or its contents are used, you may wish to delete from, add to, or otherwise
modify them, depending on PRP- or site-specific information needs.]
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.
-1-
-------
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.
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 your ability to pay.
Also, please be aware that the EPA may request additional information as part of its
review of this case material.
-2-
-------
Acronyms and Abbreviations
A
ADR Alternative Dispute Resolution
AR Administrative Record
ARAR Applicable or Relevant and Appropriate Requirement
ASAOC Administrative Settlement Agreement and Order on Consent
ATP Ability to Pay
B
BFPP Bona Fide Prospective Purchaser
BIA Bureau of Indian Affairs
C
CBI Confidential Business Information
CD Compact Disk
CD Consent Decree
CD-ROM Compact Disk-Read-Only Memory
CEO Chief Executive Officer
CERCLA Comprehensive Environmental Response, Compensation, and Liability Act of 1980
C.F.R. Code of Federal Regulations
CI Civil Investigator
CIC Community Involvement Coordinator
CIO Chief Information Officer
CO Contracting Officer
COI Conflict of Interest
COR Contracting Officer's Representative
CPO Contiguous Property Owner
D
D&B Dunn & Bradstreet
DOJ Department of Justice
E
EDGAR Electronic Data Gathering, Analysis, and Retrieval
EE/CA Engineering Evaluation/Cost Analysis
EPA Environmental Protection Agency
EPCRA Emergency Planning and Community Right-To-Know Act of 1986
-------
Fed. Reg. Federal Register
FIFRA Federal Insecticide, Fungicide, and Rodenticide Act
FOIA Freedom of Information Act
FS Feasibility Study
FTP File Transfer Protocol
G
GAAP Generally Accepted Accounting Principles
GAAS Generally Accepted Accounting Standards
GNL General Notice Letter
H
HRS Hazard Ranking System
I
IC Institutional Control
IRS Internal Revenue Service
L
LLC Limited Liability Company
M
MSDS Material Safety Data Sheet
MSW Municipal Solid Waste
N
NASDAQ National Association of Securities Dealers Automatic Quotations
NBAR Non-Binding (Preliminary) Allocation of Responsibility
NCP National Contingency Plan
NEIC National Enforcement Investigation Center
NOV Notice of Violation
NPL National Priorities List
NTCR Non-Time-Critical Removal
NYSE New York Stock Exchange
-------
o
OECA
OECM
OGC
OLEM
OPA
ORC
OSC
OSRE
OSWER
OTIS
OU
P
PA
PACER
PA/SI
PCB
PDF
PII
PO
PPA
PR
PRP
PRPIIS
Q
QA/QC
R
RA
RCRA
RD
RD/RA
RI
RI/FS
ROD
RPM
Office of Enforcement and Compliance Assurance (formerly known as OECM)
Office of Enforcement and Compliance Monitoring (now known as OECA)
Office of General Counsel
Office of Land and Emergency Management (formerly known as OSWER)
Oil Pollution Act of 1990
Office of Regional Counsel
On-Scene Coordinator
Office of Site Remediation Enforcement
Office of Solid Waste and Emergency Response (now known as OLEM)
On-Line Targeting Information System
Operable Unit
Preliminary Assessment
Public Access to Court Electronic Records
Preliminary Assessment/Site Investigation
Polychlorinated Biphenyl
Portable Document Format
Personally Identifiable Information
Project Officer
Prospective Purchaser Agreement
Procurement Request
Potentially Responsible Party
Potentially Responsible Party Internet Information Sources
Quality Assurance/Quality Control
Remedial Action
Resource Conservation and Recovery Act
Remedial Design
Remedial Design/Remedial Action
Remedial Investigation
Remedial Investigation/Feasibility Study
Record of Decision
Remedial Project Manager
-------
s
SARA
SBREFA
SEC
SEE
SEMS
SF
SI
SNL
SOL
SPIM
SREA
SWDA
T
TCE
TSCA
U
UAO
UCC
USACE
U.S.C.
USPS
w
WAM
Superfund Amendments and Reauthorization Act of 1986
Small Business Regulatory Enforcement Flexibility Act
Securities and Exchange Commission
Senior Environmental Employee
Superfund Enterprise Management System
Standard Form
Site Investigation
Special Notice Letter
Statute of Limitations
Superfund Program Implementation Manual
Superfund Recycling Equity Act
Solid Waste Disposal Act
Trichloroethylene
Toxic Substances Control Act
Unilateral Administrative Order
Uniform Commercial Code
U.S. Army Corps of Engineers
United States Code
U.S. Postal Service
Work Assignment Manager
-------
Glossary
Adit
A horizontal opening into an underground mine from the side of a
mountain.
or
Administrative
Settlement
Agreement and
Order on
Consent:
A legal agreement between EPA and an individual, business, or other
entity requiring the other entity to perform or refrain from performing
specified actions or to pay specified costs. ASAOCs apply to civil causes
of action and can be enforced in court. They describe the required or
proscribed actions, and may be subject to a public comment period.
ASAOCs are commonly used for removal actions and RI/FSs, but also
may be used for de minimis and cost recovery settlements.
Administrative The body of documents that "forms the basis" for the selection of a
Record: 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 from
the National Priorities List (NPL).
Administrative A command issued by EPA requiring testimony and, if necessary, the
Subpoena: production of documents deemed necessary to the administrative
investigation of a site. CERCLA § 122(e)(3)(B) authorizes the issuance of
administrative subpoenas as "necessary and appropriate" to gather
information to perform a non-binding preliminary allocation of
responsibility (NBAR) or "for otherwise implementing" § 122. No legal
mandate prohibits use of administrative subpoenas as initial information
gathering tools, but EPA prefers using § 104(e) requests before resorting
to them.
Alternative
Dispute
Resolution:
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.
Arbitrary and Characterization of a decision or action taken by an administrative
Capricious: agency or inferior court meaning willful and unreasonable action without
consideration or in disregard of facts or without determining principle.
Under CERCLA § 130(j)(2), a court ruling on a challenge to a response
action decision will apply the arbitrary and capricious standard of review.
Arbitration: 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.
-------
Arranger: 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 the person
or 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.
Cleanup Actions taken to deal with a release or threatened release of a hazardous
Activities: 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.
Co-Disposal Site:
A landfill containing municipal sewage sludge and/or municipal solid
waste (collectively referred to as MSW) and other wastes, such as
industrial wastes, containing hazardous substances.
Comment Period:
Period provided for the public to review and comment on a proposed EPA
action, rulemaking, or settlement.
Community
Involvement:
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 Plan:
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 the concerns expressed during
community interviews. In addition, the plan outlines methodologies and
timing for continued interaction between the Agency and public at the
site.
Condemnation: The legal process by which a governmental body exercises its right of em
inent domain to acquire private property for public use. Condemnation
includes a resolution of public need and an offer to purchase. If the
parties cannot agree on a purchase price, the governmental body brings
a condemnation suit, which allows it to take the property if it deposits
money with the court in the amount of its appraisal.
Consent Decree: A legal document, approved by a judge, that formalizes an agreement
reached between EPA and one or more PRPs outlining the terms under
which the PRPs 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.
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Contribution: 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 them. If EPA
settles with or wins its case against a subset of PRPs, the right of
contribution enables 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 A statutory provision that provides that any PRP who resolves its liability
Protection: 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.
Cooperative Mechanism used by EPA to provide Fund money to states, political
Agreement: subdivisions, or Indian tribes to conduct or support the conduct of
response activities. Subpart 0 of the NCP, 40 C.F.R. Part 35, outlines
specific response actions that may be conducted using CA funds.
Cost Recovery: The process whereby the United States seeks to recover money
previously expended in performing any response action from parties
liable under CERCLA § 107(a). Recoverable response costs include both
direct and indirect costs.
A contractual agreement, such as those authorized by CERCLA § 122(f)
and embodied in a CD or ASAOC, 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 pay for cleanup conducted by the Agency, and does
not take effect until PRPs have completed all actions required by the CD
or ASAOC.
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.
Defendant: A person against whom a claim or charge is brought in a court of law.
Demand Letter: 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 an SNL.
Covenant Not to
Sue:
Declaratory
Judgment:
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De Micromis In general, a party is not liable under CERCLA § 107 if it can
Exemption: demonstrate that the total amount of the material containing hazardous
substances that it 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 (1) those substances contributed
significantly to the cost of the response action or natural resource
restoration at the facility, (2) the party has been uncooperative with
EPA's response actions at the site, or (3) the party has been convicted of
a criminal violation for the conduct to which the exemption would apply.
De minimis PRPs who are deemed by the settlement agreement to be responsible for
Contributor: 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 § 122(g)(1)(A) expressly defines nde minimis
contributor."
De minimis PRPs who are deemed by the settlement agreement to be past or present
Landowner: owners of the real property at which the facility is located who (1) did
not conduct or permit the generation, transportation, storage, treatment
or disposal of any hazardous substance at the facility, (2) did not
contribute to the release or threat of release of a hazardous substance at
the facility through any act or omission, and (3) had no 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 § 122(g)(1)(B) expressly
defines "de minimis landowner."
De minimis An agreement, either administrative or judicial, authorized by CERCLA §
Settlement: 122(g), between EPA and PRPs for a minor portion of response costs.
Discovery: 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.
Easement: A right to make limited use of someone else's real property. Utility
companies, for example, commonly have easements that allow them
access to real property they do not own for purposes of installing,
inspecting, maintaining, or repairing equipment. Easements are one
form of institutional control that may be required at Superfund sites if
hazardous substances remain there after remedial action is complete as
they can be used to limit access or control surface activities.
Eminent Domain: The power to take private property for public use. Under the U.S.
Constitution, there must be just compensation paid to the owners of such
property. EPA exercises its power of eminent domain through the process
of condemnation.
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Enforcement
Actions:
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.
Escheat: Reversion of property to the state when the owner dies without leaving a
will or relatives who are entitled to inherit the property in the absence of
a will.
Federal Lien: A lien in favor of the United States authorized by CERCLA § 107(1) that
may be imposed on 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 statute
of limitations.
Federal Register: 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 on line and through public libraries that are federal
depositories, law libraries, and large university libraries.
Force Majeure: 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 the parties' control (i.e., problems that could not
be avoided by the exercise of due care, such as war). These causes are
known as force majeure events. Force majeure provisions are included in
CDs and ASAOCs. 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 types of force majeure may be raised as
defenses to liability. CERCLA § 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.
Fund (Hazardous A fund set up under CERCLA to help pay for cleanup of hazardous waste
Substance sites and for legal action to force cleanup actions on those responsible for
Superfund or the sites.
Superfund Trust
Fund):
General Notice A notice to inform PRPs of their potential liability for past and future
Letter: response costs and the possible future use of CERCLA § 122(e) special
notice procedures and the subsequent moratorium and formal
negotiation period.
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Hazard Ranking The principal screening tool used by EPA to evaluate risks to public
System: 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 rank it should have compared to other
sites on the list. A site must score 28.5 or higher to be placed on the
NPL.
Indian Tribe: As defined by CERCLA § 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 Where the AR, current information, technical reports, and reference
Repository: 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 Formal written request for information, authorized by CERCLA §
Request Letter: 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 an information request or providing an incomplete
response is subject to statutory penalties.
Innocent A person who purchased or acquired real property without actual or
Landowner: 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 §§ 107(b) and
101(35).
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Institutional Non-engineered instruments, such as administrative and legal controls,
Controls: that help minimize the potential for exposure to contamination and/or
protect the integrity of a response action. ICs typically are designed to
work by limiting land and/or resource use or by providing information
that helps modify or guide human behavior at a site.
Joint and Several A legal doctrine defining the scope of a defendant's liability. When more
Liability: 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.
Judicial Review: Review by a court of a decision rendered by a federal agency or
department or of an appeal challenging either a finding of fact or finding
of law. Under CERCLA, for example, courts provide judicial review prior
to entry of CDs. In addition, federal appellate courts will provide judicial
review of EPA decisions if PRPs submit a "petition to review." Courts'
jurisdiction and the scope of their review are defined by CERCLA §
113(h) and the Judicial Review Act, 28 U.S.C. §§ 2341-2351.
Lead Agency: The agency that primarily plans and implements cleanup actions. This
could be EPA, a state or political subdivision of a state, another federal
agency, or Indian tribe. 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.
Lien: The legal claim of a creditor to the property of a debtor. When a lien is
"executed" or "perfected," it becomes the legal right of the creditor to
sell the debtor's property to satisfy the debt. CERCLA §107(1), (m), and
(r) create liens in favor of the United States on real property, marine
vessels, and "windfall" increases in property value, respectively, as a
result of EPA response action.
Moratorium: The period of time after special notice letters are issued during which the
Fund will not be used to begin work on the RI/FS or RA. EPA also will not
seek to compel PRP action at the site during the moratorium.
Municipal Solid Waste material generated by a household and waste material generated
Waste: 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.
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National Oil and
Hazardous
Substances
Pollution
Contingency Plan:
The NCP is the major framework regulation for the federal hazardous
substances response program. The NCP sets forth procedures and
standards for how EPA, other federal agencies, states, and private
parties respond under CERCLA to releases or threats of releases of
hazardous substances, and under Section 311 of the Clean Water Act, as
amended by the Oil Pollution Act of 1990, to discharges of oil.
National
Priorities List:
The list compiled by EPA pursuant to CERCLA § 105 of uncontrolled
hazardous substance releases that are priorities for long-term remedial
evaluation and response.
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, a 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 §§
107(1) and 111(b) and NCP § 300.615.
Non-Binding
Preliminary
Allocation of
Responsibility:
An allocation of the total cost of response among PRPs at a facility.
CERCLA § 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 PRPs as a result of
either the PRP's being insolvent or defunct or EPA's inability to identify
PRPs.
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 levels
of performance that site activities must achieve; often incorporated by
reference into the ROD. The inclusion of such performance standards
enables EPA 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.
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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 Any individual or entity including owners, operators, transporters, or
Responsible generators who may be liable under CERCLA Section 107(a).
Party:
Record of The official Agency document that explains which remedial cleanup
Decision: alternatives have been considered, the selected remedy, technical
background relative to the decision, and how the decision complies with
the law.
Recalcitrant: A PRP that is persistently uninterested in or refuses to reach settlement
or that fails to comply with a settlement or order.
Remedial Action: 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.
Removal: A removal is "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...[and] such actions as may be necessary
to monitor, assess, and evaluate the release or threat of release of
hazardous substances..." Such evaluations include the 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.
Reopeners: 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
ASAOC or (rarely) a UAO to assess site conditions and evaluate
alternatives to the extent necessary to select a remedy that will be
described in the ROD and clean up the site in accordance with CERCLA §
121.
Remedial
Investigation/Fe
asibility Study:
Remedial
Design/Remedial
Action:
Response actions performed at an NPL site by EPA or a PRP under a CD
approved and entered by a federal court. RD is the engineered design of
the remedy selected by the RI/FS; RA is the construction and continuing
operation and maintenance of the remedy.
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Settlement: Resolution of a claim. Settlement occurs when a federal or state agency
enters into a written agreement with PRPs requiring them to pay for or
perform specified response actions. Settlements may be achieved
administratively through an ASAOC or judicially through a CD.
Special Notice A written notice to a PRP providing information on potential liability,
Letter: conditions of the negotiation moratorium, future response actions, and
demand for past costs. The SNL is authorized under CERCLA § 122(e)(1)
and triggers the start of a negotiation moratorium.
Statute of The statutorily defined period of time within which the United States, on
Limitations: 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.
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.
Unilateral An order issued by EPA under the authority of CERCLA § 106(a) requiring
Administrative a person to perform or refrain from performing specified actions in order
Order: "to protect public health and welfare and the environment" once EPA has
determined that there may be "an imminent and substantial
endangerment to the public health or welfare or the environment
because of an actual or threatened release of a hazardous substance
from a facility." UAOs are typically issued when settlement negotiations
have failed or an emergency situation exists.
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