OSWER # 9834.0 S*9n», a , \S2Zi *< •MO'* UNITED STATES ENVIRONMENTAL PROTECTION AGE\C- WASHINGTON. D C 20460 JAN 26 m MEMORANDUM SUBJECT: FROM; Releasing Identities of Potentially Responsible Parties in Response to FOIARequests Gene A. Lucero, Director (p&vJL f\, Office of Waste Programs Enforcement Kirk F. Sniff Associate Enforcement Counsel Was te TO: Office of Enforcement and Complrence Monitoring Directors, Waste Management Division, Regions I, v Director, Office of Emergency 4 Remedial Response, Region 1". Director, Hazardous Waste Management Division, Region III Directors, Air & Waste Management Division, Regions IV, VI, VII,' VIII Director, Toxics & Waste Management Division, Region IX Director, Air s, Waste Division, Region .X Regional Counsels - Regions'I - X PURPOSE This memorandum states the policy of EPA for responding to 'requests under the Freedom of information Act (FOIA") for the names of potentially responsible .parties (PRPs) at CERCLA sites. II. BACKGROUND On March 30, 1983, EPA issued guidance on releasing the ' identities-of potentially responsible parties under CERCLA. --This' guidance provided for case-by-case review and discretionary disclosure of the identities of¦PRPs in certain limited circum- stances. In general, before the March 30 guidance, EPA did not. release the names of PRPs in response to FOIA requests. On June 28, 1983, the Federal District Court for the District of Columbia decided in Cohen v. EPA that EPA had hot met its burden of establishing that Disclosing the identities of PRPs would harm the Agency's enforcement efforts. The case involved EPA1s decision to withhold the identities of potentially responsible parties as provided by FOIA exemptions under S U.S.C. 5.5552 t bP t A) , 1(C), and 5. The court granted the p.la i nt i f f ' s motion for summary judgment on finding that: ------- OSWEr, 3 9834 1. Fcr Ex?-.;;?'A! -- notice letters era investigatory records compiled for law enforcement purposes, but EPA did not establish that disclosure of"the notice letters wou 1 z harm the investigation; 2 For Exemption 1(C) --'the identities of the PP.Ps who received notice letters does not fall into the cateoorv of a protected privacy interest; and ¦3. For Exemption 5 -- notice letters are no: predecisional documents , III. POLICY ¦ " '* ' As a result of the Cohen decision and the" Ac- i ni s tr a tor' s policy of conducting business in a more open 3tmosp.nere, anc in light of the resource demands involved in case-ny-case rsview of the nsr.es of notice letter recipients", the Marcn 30, 1983, guidance has- been reevai us te; . " Tne new g u i : s r, t ¦¦ is forth below. 1. In response to a POIA request, EPA will release the names cf PRPs wno have received notice letters aoout a CE.-.ZL-. site, 2. An exception- to the. policy cf. disclosing the names of P?.?s wro received" notice letters mey pe made only when E?,~ determines t.-at disclosure of a particular name will cause such, interf-rence.with an ongoing enforcement proceeding that discretionary disclosure is clearly unwarranted, if '»;?a decides t,o wi t. h n c I i the- n3n€ of b PHP wr.o i'vso s notice tts? f EPA must support the conclusion-that disclosure will cause substantial harm to tne law enforcement proceeding in writing with concurrence by the Regional Counsel.- The written documentation may net consist of general statements; it must include the particular facts relating' to the specific PRP and site that led to-the conclusion to withhold. " 3. The names cf parties who have not yet received 'notice letters may be predecisiona1 and therefore exempt from disclosure under Exemption. 5 of the FOIA. These names al so may be exempt, as investigatory records under Exemption 7(A) . However# in its discretion EPA may release this material . .. ¦ 4. Although EPA usually will release the names of PRPs only i-n response to FOIA requests, the Agency may elect to release the information on its own initiative in appropriate* circumstances . - 5,. Disclosure of the names of PRPs and the names of sites does, not constitute a waiver of EPA1s right to withhold other information developed for an enforcement action that EPA determines is exempt from disclosure. Even if information is exempt fror, disclosure under Exemotion 2, 5, or ~i of FOIA, EFA has discretion ------- OSWER ¥ 9834.0 -3- to release the information; however, EPA tnav exercise its discretion to release the information only after the appropriate Regional Counsel reviews the information to ensure that disclosure will not interfere with an enforcement action. IV. PROCEDURES.TO IMPLEMENT POLICY EPA Headquarters or a Regional Office should follow the procedure below to respond to a FOIA request for the names of PRPs or other informatior, aoout a CERCLA site. 1. Quality assure the list o£ PRPs regularly and particularly before sending notice letters to PRPs for a site. Perform an in depth quality assurance of PR? lists every 6 months. Headquarters will hold Regional Offices accountaole for inadequate quality assurance of PR? i nf orma t ior,. 2. Intmeciate 1 y notify Headquarters whenever a Regional Office decides, in accordance with tne gjidance in Item in.2 a do v e, that disclosing the name of a PRF will cause substantial harm to an enforcement effort, Regional Offices also should notify Headquarters if withholding a name is no longer required. 3. If additional information is- requested a ecu t a PR? or a site, consult w11n the Regional Counsel for a decision or, whether disclosure will interfere with enforcement at the site. 4. Suomit the list of names, or names and information, to the requester with a brie: explanation of how E?A defines PR? for -purposes of sending notice letters. 5. Include with the list of names the following disclaimer": This list represents EPA's preliminary findings on tne identities of potentially -responsible parties. EPA makes no assertions that parties on this list are liaole for any hazard.or contamination at any CERCLA site." 6. 'use the term "-potentially responsible party" in responses to FOIA requests if none of the parties named in a notice letter has been found liable by a court. V. FIRST RESPONSE TO FOIA REQUESTS Ten working days after the date of this policy».Headquarters will respond to the current oacklog of requests for all PR? names with the quality assured list. Any Regional Office that intends to withhold any PR? names, as' provided by Item III, 2 above, must have completed the required documentation and notified Headquarters before the FOIA response date,.If you have any cuestions about this policy, contact Susan Cary Watkins (FTS 382-2032). ------- |