06/21/89
Model Litigation Report for CERCLA Sections 106 and 107 and RCRA Section 7
OSWER Directive No. 9835.11-1
9835.11-1
MEMORANDUM JUN 21, 1989
SUBJECT: Model Litigation Report for CERCLA Sections 106 and 107 and RCRA
Section 7003
FROM: /s/ Edward E. Reich
Acting Assistant Administrator
TO: Regional Administrators
Regional Counsel
I have attached the Model Litigation Report for CERCLA Sections 106 and
107 and RCRA Section 7003. This model supplements previous Agency guidance
entitled "Model Litigation Report Outline and Guidance" ( OECM, August 23,
1984 ), which addressed the preparation of a litigation package under most
statutes, but excluded, among others, packages to be prepared for
prosecution of civil judicial actions under CERCLA Sections 106 and 107 and
RCRA Section 7003.
The model is intended for use in all civil judicial cases referred to
the Department of Justice for prosecution under CERCLA Sections 106 and 107
and RCRA Section 7003. For those actions referred in conjunction with a
settlement, a full litigation report is not required. Rather, the Regions
should follow soon-to-be-issued guidance on pre-referral negotiations and
current policy governing the preparation of settlement analyses accompanying
the referral of consent decrees. See, 52 Fed. Reg. 2034 ( "Interim CERCLA
Settlement Policy" ). This document also does not specifically address
preparation of litigation reports for prosecution of penalty actions under
CERCLA Sections 106(b), 109 or 122(l), although many sections of this
document may be applicable to the preparation of such litigation reports.
-2- 9835.11-1
I would like to express my appreciation to you to the members of your
staffs that have reviewed and commented on the drafts of the document. If
you have any questions regarding this guidance, please call Glen Unterberger
or David Van Slyke of my staff at 382-3050.
Attachment
9835.11-1
MODEL LITIGATION REPORT
CERCLA Sections 106 and 107 and RCRA Section 7003 Actions
This guidance and any internal procedures adopted for its implementation are
intended solely as guidance for employees of the U.S. Environmental
Protection Agency. Such guidance and procedures do not constitute
rulemaking by the Agency and may not be relied upon to create a right or
benefit, substantive or procedural, enforceable at law or in equity, by any
person. The Agency may take action at variance with this guidance and its
internal implementing procedures.
9835.11-1
MODEL LITIGATION REPORT
CERCLA Sections 106 and 107 and RCRA Section 7003 Actions
TABLE OF CONTENTS
I. Cover Page . . . . . . . . . . . . . . . . . . . . . . . . . . .1
II. Table of Contents . . . . . . . . . . . . . . . . . . . . . . .1
III. Synopsis of the Case ( Executive Summary ) . . . . . . . . . . .1
IV. Significance of Referral . . . . . . . . . . . . . . . . . . . .2
V. Statutory Bases of Referral / Legal Theory of Case . . . . . . .2
VI. Description and History of the Site . . . . . . . . . . . . . .3
VII. Status of Cleanup Process . . . . . . . . . . . . . . . . . . .4
VIII. National Resource Damage Claims . . . . . . . . . . . . . . . .7
IX. Prima Facie Case, Liability and Description of
Proposed Defendant(s) and Miscellaneous
Issues Regarding Liability and Cost Recovery . . . . . . . .8
X. Enforcement History / Contacts with Potential Defendants . . 18
XI. Cost Recovery . . . . . . . . . . . . . . . . . . . . . . . . 21
XII. Penalties and Punitive Damages . . . . . . . . . . . . . . . . 25
XIII. Injunctive Relief . . . . . . . . . . . . . . . . . . . . . . 26
XIV. Other Legal Issues . . . . . . . . . . . . . . . . . . . . . . 29
XV. Litigation / Settlement Strategy . . . . . . . . . . . . . . . 30
XVI. Other Imminent Hazard Provisions . . . . . . . . . . . . . . . 31
XVII. Witnesses / Litigation Support . . . . . . . . . . . . . . . . 33
APPENDIX I - RCRA Section 7003 Prima Facie Case . . . . . . . . . . . .A-1
9835.11-1
MODEL LITIGATION REPORT
CERCLA Sections 106 and 107 and RCRA Section 7003 Actions
I. Cover page 1/
1/ The cover page should be in addition to the "Data Form" prepared as a
one to two page fact sheet on the case.
A. Region, statute(s) involved and judicial district.
B. Name of defendant(s) by category ( e.g., owners, operators,
generators, transporters ).
Include names, addresses and telephone numbers of all proposed
defendants in an appendix to the litigation report. The list
of all other potential defendants, with addresses and
telephone numbers ( where available ) also should be attached
as an addendum.
C. Name, address and EPA ID Number of facility or facilities.
Include name, address and telephone number of all facilities /
sites subject to the referral.
D. Regional contacts.
Include names, addresses and telephone numbers of regional
program ( technical ) and legal contacts who prepared the
report.
E. Stamp date of referral on cover page.
II. Table of Contents
Include headings, subheadings and page numbers.
III. Synopsis of the Case ( Executive Summary )
This should be a concise narrative summary statement briefly
describing the site, the environmental problem, cleanup /
enforcement to date, projected future removal /
2 9835.11-1
remedial efforts, past / future response costs, the proposed
defendants and the relief sought.
IV. Significance of Referral
Indicate if the case is part of a special Agency initiative or
may present issues of national significance.
V. Statutory Bases of Referral / Legal Theory of Case
A. Applicable statutes.
Reference briefly all applicable Federal statutes by United States
Code ( USC ) citation and by section of the Act.
B. Enforcement authority; jurisdiction and venue.
Summarize briefly the enforcement authority and the jurisdiction
and venue provisions of applicable statutes. If there is reason
to file the action in a district other than where the site is
located, note each available district and indicate the reasons for
filing there. ( Note that CERCLA Sections 106 and 113(b) contain
specific statements of available venues for CERCLA actions, but
that RCRA Section 7003 and other imminent and substantial
endangerment causes of action typically do not. Venue for cases
involving such counts may need to depend upon the general Federal
venue provisions of 28 USC Section 1391. )
C. Bankruptcy petitions.
If the referral is for the filing of a bankruptcy claim, describe
the status of bankruptcy petition, including (1) whether Chapter
7, 11, or 13, (2) whether reorganization plan filed, and (3) bar
date for proof of claim. See, "Guidance Regarding CERCLA
Enforcement Against Bankrupt Parties" ( OECM, May 24, 1987 );
"Revised Hazardous Waste Bankruptcy Guidance" ( OECM, May 23,
1986 ). If the case involves a PRP that has filed for
bankruptcy, obtain and attach schedule and any other court
documents previously filed. Discuss the significance of the
bankruptcy to the overall enforcement or cost recovery action and
the likelihood of obtaining the relief sought.
NOTE: It is important to inform DOJ of a bankruptcy filing or a
pending bankruptcy action as soon as the
3 9835.11-1
Region becomes aware of such action. See, "Coordination of Agency
Involvement in Bankruptcy Proceedings Affecting RCRA or CERCLA
Enforcement" ( OECM, June 10, 1988 ).
D. Cross-media coordination
State whether coordination across media has occurred. Cross-media
regional review should ensure that consideration has been given to
including all available causes of action pertaining to that
particular owner / operator and site. 2/
2/ Review of other potential causes of action is particularly important in
cases involving RCRA facilities that were in operation after November
19, 1980 and facilities involving PCB contamination that may be
regulated under TSCA. In addition, review and coordination is critical
under those exceptional circumstances where the Agency might contemplate
a release from liability under several statutes / media.
Discuss reasons for including or omitting cross-media claims.
Where the secondary cause of action is minor, or where the case
development will take an inordinate amount of time, the case
should be referred with the excluded secondary cause of action
clearly identified. However, if the secondary cause of action is
major, and if development will not unreasonably delay the
referral, all such causes of action that are appropriate for
filing should generally be referred together. This is
particularly true for endangerment cases that may be brought under
several environmental statutes simultaneously, if considerations
such as defenses, scope of liability and record review warrant it.
See discussion regarding other imminent and substantial
endangerment provisions of Federal statutes in Section XVI, below.
VI. Description and History of the Site
A. Site location ( include here, or as attachments to Litigation
Report ( e.g., in ROD ), appropriate maps ). See Section IX.A.2.
( Page 10, infra ).
B. Facility processes - Describe the manufacturing, recycling or
disposal processes that are pertinent. See Section IX.A.2. ( Page
10, infra ).
C. Site description ( photographs, diagrams, etc., as appropriate ).
See Section IX.A.2. ( Page 10, infra ).
4 9835.11-1
D. NPL status
Include status of NPL listing. If not on the NPL, state status of
HRS scoring, whether the site has been proposed for the NPL and,
if so, the date the site made ( or is expected to make ) the final
NPL. Include appropriate Federal Register cite(s). Also indicate
whether State, PRPs or citizens object to the proposed listing.
E. General description of environmental problem posed by the site.
VII. Status of Cleanup Process
A. Cleanup activities by parties other than EPA prior to or
contemporaneous with EPA involvement.
Describe, chronologically, all response efforts undertaken at the
site by PRPs, or state or local governments, that have occurred
prior to EPA involvement or outside the scope of EPA oversight.
B. EPA cleanup actions.
The referral must clearly identify each of the Agency responses
undertaken at the site, including each removal and remedial
operable unit, and, if the action seeks to compel PRP response
under Section 106, the proposed response action. If the site
involves multiple operable units ( and multiple RI/FSs and
RD/RAs ), discuss those operable units that are the subject of
the referral and generally describe any planned investigations
and studies. The action must have been sanctioned ( e.g., action
memo or record of decision ), there must be an adequate
administrative record for each response action decision, and the
actual action must be documented.
1. Removals
a. Identify and include the authorizing document ( Action Memo ).
b. Describe the status of the Administrative Record supporting
the removal decision. See Section VII.C., below.
c. Describe the major community relations activities relating to
the removal, including any public comment periods held ( how
long and what for ) and public meetings held. Identify and
describe any particular portion of the response action in
which
5 9835.11-1
the public ( including PRPs ) has expressed interest. Include
responsiveness summaries published following any public
comment period.
d. Identify and describe each activity completed, when those
activities were completed and the status of activities
underway or planned. Include a discussion of the entity that
performed the activity ( e.g., name of contractor and primary
contractor contact ) or the Agency personnel or office that
undertook the activity. Also identify each OSC that worked on
the project.
2. Remedial Investigation / Feasibility Study through Record of
Decision
a. Identify and describe each RI/FS completed, when those
activities were completed and the status of activities
underway or planned. Include a discussion of the entity that
performed the RI/FS ( e.g., name of contractor ( and any major
subcontractors ) and primary contractor contact ) or the
Agency personnel or office that undertook the activity. Also
identify each RPM that worked on the project.
b. Describe the major community relations activities relating to
the each RI/FS, including public comment periods held ( how
long and what for ) and public meetings held. Identify and
describe any particular portion of the RI/FS in which the
public ( including PRPs ) has expressed interest. Include
responsiveness summaries published following any public
comment period.
c. Discuss and include the authorizing document ( Record of
decision ( ROD ) ). Discuss any significant issues likely to
be raised by defendants regarding adequacy of the ROD.
d. Describe the status of the Administrative Record supporting
the remedial decision. See Section VII.C., below.
e. ATSDR Evaluation - Discuss ATSDR evaluation and any potential
litigation problems raised by differences between EPA and
ATSDR evaluations. Identify who at ATSDR did the evaluation.
f. Posture of State regarding ROD and Participation in Settlement
- Describe any contacts with the state regarding concurrence
in the remedy selected.
6 9835.11-1
Identify any EPA / State enforcement issues, such as whether
the State has indicated interest in intervening in any
potential Federal action / settlement. Attach pertinent
correspondence.
g. A risk assessment / endangerment assessment, typically part of
an RI/FS, is generally performed to support remedial action
selection decisions. Such an assessment will be the vehicle
normally used to establish the imminent hazard portion of a
CERCLA Section 106 or RCRA Section 7003 claim. Such an
assessment should be undertaken pursuant to the Superfund
Public Health Evaluation Manual ( OSWER, October 1986 ). See
also, "Risk Assessment Guidance for Superfund -- Environmental
Evaluation Manual" ( Interim Final, OSWER March 1989 ).
Discussion of the risk assessment / endangerment assessment
should take place in conjunction with Sections IX and XIII,
below.
Appendix Two of the RCRA / CERCLA Case Management Handbook
( August 1984 ) contains a checklist of facts necessary for
CERCLA imminent and substantial endangerment cases. Appendix
I hereto discusses the RCRA Section 7003 prima facie case.
h. Discuss and include any CERCLA Section 111(k) Inspector
General audits of the RI/FS.
3. Remedial Action(s)
a. Identify and describe each operable unit RD/RA, 3/ when
those activities were started and ( if appropriate )
completed, and the status of activities underway or planned.
3/ while remedial design ( RD ) is technically a "removal" action under
the terms of the statute ( See CERCLA Sections 101(23) and 101(24), it
is appropriate to discuss RD in conjunction with remedial action, given
the nature of the remedial design and remedial action process.
Include a discussion of the entity that performed each
operable unit RD/RA ( e.g., name of contractor ( U.S. Army
Corps of Engineers, XYZ Environmental Removal, etc. ) ),
important subcontractors and primary contractor contacts ) or
the Agency personnel or office that undertook the activity.
Also identify each RPM that worked on each operable unit.
b. Describe the major community relations activities during the
RD/RA, notices of significant differences
7 9835.11-1
( Section 117(c) ), revisions to the ROD including public
comment periods held ( how long and what for ) and public
meetings held. Identify and describe any particular portion
of the response action in which the public ( including PRPs )
has expressed interest. Include responsiveness summaries
published following any public comment period.
C. Administrative Record For Each Removal / Operable Unit
Judicial review of the adequacy of response action selection
decisions in the context of CERCLA Section 106 and 107 actions will
be based upon the administrative record supporting the decision.
Thus, it is essential that the administrative record in support of
all pertinent Agency response decisions be completed prior to
referral. See, "National Oil and Hazardous Substances Contingency
Plan: Proposed Rule." 53 Fed. Reg. 51394 ( December 21, 1988 );
"Interim Guidance on Administrative Records for Selection of CERCLA
Response Actions" ( Porter, March 1, 1989 ); "Guidance on CERCLA
Section 106 Judicial Actions ( Reich / Porter 2/24/89 ). A list
( index ) of all documents in the record must be included in the
referral package. The record itself must be compiled, collated and
stored in a secure location in the Region by the time of the
referral. 4/
4/ In those exceptional circumstances where statute of limitations
concerns indicate it may be appropriate ( consistent with Agency
guidance ) to file as soon as possible, a case can be referred without
an index to or final compilation of the administrative record.
Any outstanding issues regarding compilation of the administrative
record should be noted and the plan for resolution of those issues
should be identified.
VIII. Natural Resource Damage Claims
A. Identify potentially interested Federal and/or State natural
resource trustees. See, Memoranda of understanding with NOAA and
Department of Interior, 5/ and 40 CFR 300.72 - 300.74 ( Trustees
for Natural Resources ).
5/ These Memoranda of Understanding have been transmitted to the Regional
Counsel Branch Chief's under separate cover.
8 9835.11-1
Summarize contacts, if any, with each trustee, and identify lead
trustee representatives and telephone numbers.
B. Briefly describe natural resources that may have been affected by
contamination at or from the site as identified by the trustee
agency.
C. Status of site survey / damage assessment by trustee(s).
Briefly describe status of trustees' efforts to determine
whether significant injury to natural resources has occurred
at the site and, if applicable, to evaluate measures to
restore or replace injured resources and assess damages
resulting from the injury.
D. Participation by trustee(s) in selection of remedy or negotiations.
Briefly describe the role, if any, natural resources trustees
have played in the RI/FS process, consideration given to
trustee comments in the ROD, and the trustee's participation
or expressed level of interest in participating in
negotiations with PRPs.
IX. Prima Facie Case, Liability and Description of Proposed
Defendant(s), and Miscellaneous Issues Regarding Liability and Cost
Recovery
A. Prima Facie Case
There are three core elements 6/ to the prima facie case for cost
recovery or injunctive relief under CERCLA:
6/ To complete a CERCLA prima facie case, additional elements include: an
imminent and substantial endangerment ( for CERCLA section 106
injunctive relief ), or that the government incurred response costs
( for CERCLA Section 107 recovery ). See, Sections XI and XIII, infra.
* There is a release or threat of release of a hazardous
substance;
* the release or threat of release is from a facility;
9 9835.11-1
* the Defendant is in one of those categories of liable parties
in CERCLA Section 107(a). 7/
7/ It should be noted that, under particular circumstances, a CERCLA
Section 106 action may lie against parties other than those identified
in Section 107. For example, a Section 106 action may be available to
compel a state or local entity to remove unwarranted procedural barriers
to site cleanup. See, e.g., United States v. Town of Moreau, No. 88-CV-
934 ( N.D.N.Y. Sept. 6, 1988 ).
This section of the litigation report should focus on the first two elements
8/ of the core of the CERCLA prima facie case:
8/ As noted in Section XI, infra ( See, footnote 11 and accompanying
text ), the evidence to establish these first two elements should be
based on documents in the administrative record.
1. Release or threat of release of a hazardous substance.
Often, this element will established by on / off-site sampling
showing that there has been an actual release. Such sampling
results may need to be supplemented by an evaluation of the
physical conditions on or around the site that suggest the threat
of release. A summary of each different sampling program
undertaken with regard to the site should be included here ( along
with a discussion of any chain of custody or QA/QC issues /
problems ) and any witnesses that may be needed to testify about
these procedures should be identified.
It is critical that all materials justifying the response activity
be identified and that each is shown to be a hazardous substance.
9/
9/ A list of substances that are hazardous substances under CERCLA is
contained in 40 CFR Part 302. That regulation designates under CERCLA
Section 102(a) those substances in the statutes referred to in CERCLA
Section 101(14). It should also be noted that a RCRA solid waste, as
defined in 40 CFR 261.2, which is not excluded from regulation as a
hazardous waste under 40 CFR 261.4(b), is a hazardous substance under
CERCLA Section 101(14) ( as well as a hazardous waste under RCRA ) if it
exhibits any of the characteristics identified in 40 CFR 261.20 through
261.24.
Much of this evidence should be gathered as part of the Preliminary
Assessment and Site Inspection ( See 40
10 9835.11-1
CFR Section 300.64, 40 CFR Section 300.66 and CERCLA 104(b) ) and
in the RI/FS ( 40 CFR Section 300.68 ).
2. From a facility.
CERCLA Section 101(9) describes in broad terms what is included in
the definition of a "facility." Describe the evidence indicating
that a "facility" exists.
When the site is on or proposed for NPL listing, one must be
conscious of the manner the facility is defined in the litigation
vis-a-vis the parallel discussion of the "facility" in the NPL
listing. Any deviation from the NPL listing should be discussed.
If the proposed litigation involves multiple sites or a remote
sites theory, discuss each site / facility and the theory of
liability with regard to each site. In those discussions,
describe, as appropriate, the impact of multiple sites on the
allocation of costs and the allocation of harm.
The next section of the litigation report should focus on the third core
element of the prima facie case -- liability of the proposed defendants.
B. Liability and Description of Proposed Defendants
Much of the basis for the liability case against all PRPs will be
established during the EPA PRP search. Procedures for conducting PRP
searches and the type of information that should be obtained are included in
"Potentially Responsible Party Search Manual" ( OSWER Directive 9834.6,
August 1987 ). Pertinent information also may be contained in responses to
CERCLA Section 104(e) / RCRA Section 3007 letters and CERCLA Section 122(e)
subpoenas.
As a general matter, the litigation report should describe the basis for
asserting liability against each proposed defendant and explain why EPA does
not propose to sue certain potentially responsible parties at this time.
However, the complete package of information described below in Sections
B.1., B.2 and B.3. is not required at this time for those PRPs EPA does not
propose to sue as a result of this referral. In addition, some of the
information required below may be available in the PRP Search Report for the
site, which should be included as an attachment to the litigation report, if
available. If the PRP Search Report covers the material needed in
particular sections of the litigation report,
11 9835.11-1
attaching the PRP Search Report and citing to the appropriate pages may be
appropriate.
The report should includes names of all PRPs, the volume and nature of
substances contributed by each PRP and a ranking by volume, to the extent
available, as done under Section 122(e)(1) of CERCLA. Especially difficult
issues of liability, such as individual corporate officer liability,
corporate parent / subsidiary liability and successor corporation liability,
should be highlighted in this section of the litigation report.
Information regarding liability of PRPs generally is not included in the
administrative record for selection of the response action except to the
extent that PRP-specific ( typically, substance-specific ) information is
needed for response selection decisions. However, all PRP liability
documents must be collated, separated by PRP to the extent possible, and
available in the Regional office at the time of referral. The format for
discussing PRP liability and describing the proposed defendants is noted
below.
1. Owner or Operator and Former Owner or Operator.
( CERCLA Sections 107(a)(1) and (2) )
a. Description of facility and activities undertaken at facility
during period of ownership.
Briefly discuss the business of the defendant, providing
details about the facility in question. When the defendant is
a manufacturer, describe what is produced. Describe the plant
and processes used. Emphasis should be on the source of the
release / threatened release that necessitates the response
action. Legal description of the property must be in the
title search done during the PRP search.
Past owners are responsible if they owned the property when
hazardous substances were disposed of. Title search will
establish ownership; documents ( business records, permits,
manifests, etc. ) and witnesses ( names of employees,
neighbors should be included ) will establish disposal at time
of ownership.
b. State of incorporation / principal place of business.
If there is a question whether the corporation has been
dissolved or subsumed into a different entity, discuss the
issue, ascertain status of
12 9835.11-1
corporation and attach a Dun and Bradstreet report and
corporation papers from the Secretary of State's office ( if
not too voluminous ).
Give a brief synopsis of any name changes and changes in
corporate form of the proposed defendant(s). Include dates
during which the corporation managed the business responsible
for the problem.
c. Agent for service of process.
Include name, address, and telephone number, if known.
d. Legal counsel.
Include name, address and telephone number. Note if there are
liaison counsel, separate negotiation and litigation counsel
or a steering committee involved and include pertinent names
and affiliations.
e. Identity of any parent or successor corporation(s).
Discuss evidence available or needed to show corporate control
or assumption of liabilities. Merger, acquisition and
divestiture papers should be attached, if available and not
too voluminous.
f. Deed / purchase agreement with former owner.
This may be part of the title search completed during the PRP
search.
f. Lease Agreements.
If the property is or has been leased, include a copy of the
lease agreement(s), if not too voluminous.
h. Financial viability / insurance information.
Where financial viability of a potential defendant is an
issue, financial and insurance information will be important.
Discuss the issue and attach prior 10K, 10Q or other SEC
filings, Dun and Bradstreet or other similar report, and
recent bank loan applications, if not too voluminous. See,
"PRP Search Manual"
13 9835.11-1
and "Guidance on Use and Enforcement of Information Requests
and Administrative Subpoenas" ( OECM 08/25/88 ).
Where insurance coverage may be available, describe and
attach, if available, any current or previous potentially
applicable insurance policies. If the case is a multi-
generator case, insurance information is not needed in the
referral package itself. See, "Guidance on Use and
Enforcement of Information Requests and Administrative
Subpoenas" and "Procedural Guidance on Treatment of Insurers
Under CERCLA" ( OECM, 11/21/85 ).
i. Personal liability issues.
If proposed defendants include corporate officers or managers,
discuss facts surrounding corporate officers' / managers'
personal involvement in the activities resulting in liability
and the degree of their personal direction of corporate
affairs.
j. Potential CERCLA Section 107(b) defenses.
The only defenses available to liability under CERCLA Section
107(a) for owner / operators are set forth in Section 107(b).
The defendant must demonstrate by a preponderance of the
evidence that the release was caused solely by (1) an act of
God, (2) an act of war, (3) a third party ( under certain
conditions ), or (4) any combination of the above. Discuss
any potential Section 107(b) defenses associated with the
potential actions and include documents that may tend to
support or negate such defenses.
In general, the third-party defense in CERCLA Section
107(b)(3) is available if the PRP can establish, by a
preponderance of the evidence, that an entity, not related to
the PRP by contract, agency or otherwise, was solely
responsible for the release, and the PRP exercised due care
concerning disposal at the site in light of the circumstances
and took precautions against foreseeable acts or omissions of
such third parties.
The litigation report should identify and address any events
or circumstances that may show "sole cause," "due care" or
14 9835.11-1
"foreseeability." Discussion of the availability of the
third-party defense in light of those facts should also be
included in the report.
Discuss fully whether the "innocent landowner" defense may be
available based upon the parameters set forth in CERCLA
Section 101(35). Review "Guidance on Landowner Liability
under Section 107(a)(1) of CERCLA, De Minimis Settlements
Under Section 122(g)(1)(b) of CERCLA and Settlements with
Prospective Purchasers of Contaminated Property" ( OECM /
OSWER 6/6/89 ) and SARA Conference Report. Discuss how
factors relating to the landowner fit within the guidance.
Include all administrative discovery and documents from the
landowner which may tend to support or negate this defense.
The referral should also asses the nature and weight of
available evidence regarding the defense as it may apply to
each owner / operator.
2. Generators and Others Persons Who Arranged for Disposal ( CERCLA Section
107(a)(3) )
The following information should be provided for those parties that
the Region recommends as defendants. A lesser amount of information
regarding other potential generator-type PRPs that are not proposed
defendants at this time should be provided as well, along with a short
explanation of the determination not to include those parties as
proposed defendants in this referral package. See Section IX.B., page
10, supra.
a. As a starting point, the referral must contain a list of amount and
types of wastes generated by and contributed to the site by each
generator, to the extent known, ranked by volume. The list should
include an indication of whether the material is a RCRA hazardous
waste or other CERCLA hazardous substance and the source of that
determination ( e.g., it is a listed waste, it fails the Extraction
Procedure ( EP ) Toxicity Test, etc. ). See, Section IX.A.1.,
below. IF ATSDR is or will be writing a report, so note ( and
attach copy if appropriate and not too voluminous ).
b. Identification of generator's facility and description of and
evidence documenting amount and type of hazardous substances sent
to the site ( e.g., manifests, Section 104(e) / Section 3007 letter
responses,
15 9835.11-1
subpoenas, interviews, etc. ). Such information should be
organized, summarized and collated separately for each defendant.
If such documentary information is not available or is somewhat
equivocal ( assuming, of course, a good faith basis to proceed ),
the litigation report must identify the reasons for including the
party as a proposed defendant and the strategy for linking the
defendant to the site ( e.g., proposed discovery strategy or use of
process chemistry ).
c. Indication of the current level(s) at the site of each contaminant
sent to the site by the proposed defendant(s), if available. It is
important that the hazardous substances at the site be identified,
to the extent possible, with each potential defendant.
d. Description of the transporter of and the method of transporting
the material for disposal.
Facts should be included detailing whether the company used an
independent contractor, company owned vehicles, etc. for
delivering the waste material.
e. State of incorporation.
See, Section IX.B.1.b. above.
f. Agent for service of process.
See, Section IX.B.I.c., above.
g. Legal counsel.
See, Section IX.B.1.b., above.
h. Identity of any parent or successor corporation(s).
Where financial viability of a subsidiary is questionable or
when a PRP has been acquired by another entity subsequent to
disposal of the hazardous substances, discuss evidence
available or needed to show corporate control or assumptions
of liability. Merger, acquisition and divestiture papers
should be attached, if available and not too voluminous.
i. Description and evidence of financial viability.
See, Section IX.B.1.h., above.
16 9835.11-1
j. Potential CERCLA Section 107(b) defenses.
See, Section IX.B.1.j., above.
3. Transporters - CERCLA Section 107(a)(4)
a. Description of transporter's business.
b. List of generators each transporter worked for.
c. List of amount and types of waste transported and destination.
d. Description of evidence documenting pickup point and destination
point, and amount and type of hazardous wastes or hazardous
substances transported.
e. Discussion of evidence to be used in showing that the transporter
selected the site. See, "Policy for Enforcement Actions against
Transporters under CERCLA" ( OECM / OWPE, December 23, 1985 ).
f. Description of any potential trans-shipments beyond disposal
facility in question. See also, discussion at Section IX.B.2.j.,
above.
g. State of incorporation.
See, Section IX.B.1.b., above.
h. Agent for service of process.
See, Section IX.B.1.c., above.
i. Legal counsel.
See, Section IX.B.1.d., above.
j. Identity of any parent or successor corporation.
See, Section IX.B.2.h., above.
k. Description and evidence of financial viability.
See, Section IX.B.1.h., above.
l. Potential CERCLA Section 107(b) defenses.
See, Section IX.B.2.j., above. Also note "ICC" defenses in
CERCLA Section 101(20).
17 9835.11-1
C. Miscellaneous Issues regarding Liability and Cost Recovery
1. Special Defendants
Identify and discuss any issues regarding special defendants
( e.g., municipal or State agency defendants ). Include here any
discussion of Federal PRPs involved with the site.
2. Divisibility of Harm
Discuss any divisibility issues presented by separate sites or
potentially segregable harms presented at a single site. Discuss
any proposed allocation of costs that is based upon such potential
divisibility.
3. Exemption from Liability Issues - Discuss if applicable:
a. Federally permitted release ( CERCLA Section 101(10) ). See,
"Reporting Exemptions for Federally Permitted Releases of Hazardous
Substances; Proposed Rule" 53 Fed. Reg. 27268 ( July 19, 1988 ).
b. Petroleum, natural gas, synthetic gas, and crude oil exclusions
( CERCLA Sections 101(10), 101(14), 101(33) ).
For cases involving waste oil, used oil or other petroleum
based materials, set forth a preliminary determination of why
the parties dealing with such materials should be sued and the
bases for this determination.
Review "Scope of the CERCLA Petroleum Exclusion" ( OGC, July
31, 1987 ) and state how analysis in this case complies with
that guidance. Once promulgated, RCRA Section 3014
regulations should be discussed, if relevant.
c. Nuclear materials ( CERCLA Section 101(22) ).
d. Fertilizers - Normal application is not a "release" ( CERCLA
Section 101(22) ).
e. Pesticides - Cost recovery may not be available for response to
releases of pesticides registered under FIFRA. See CERCLA Section
107(i). Discuss any "pesticide reformulation facility" issues
that may be relevant.
18 9835.11-1
f. Consumer products - Products for consumer use not included in
definition of "facility" in CERCLA Section 101(9).
4. Equitable Considerations 10/
10/ The government has consistently taken the position that, aside from
proving that they are not one of the parties that may held liable under
CERCLA Section 107(a), a PRP's only possible defenses in a CERCLA
action are those delineated in CERCLA Section 107(b). It should be
noted, however, that certain courts have held that equitable defenses
are available under CERCLA.
In certain circumstances, the Region may be able to anticipate
additional arguments that will be asserted by certain PRPs. Such
arguments may include equitable defenses, negligent permitting of a site
by a State or Federal agency, etc. Any such potential issues known to
the Region should be identified and addressed in the litigation report.
5. Ability to Recover Costs / NCP Issues
Discuss any potential arguments that may be asserted by defendants
regarding costs, including such things as gross errors in implementing
the remedy and inconsistency of the response with statutory or NCP
provisions. This discussion may be deferred to Section XI.D., below, if
appropriate.
6. Potential Criminal Liability
The referral memo should briefly describe if there is a State or Federal
criminal investigation ongoing, contemplated or completed and
relationship to current Agency guidance on parallel proceedings.
X. Enforcement History: Contacts with the Potential Defendants
To ensure that the Department of Justice has a complete history of EPA's
course of dealings with the site and the potential defendants, the following
information should be discussed if applicable.
A. Pertinent contacts with potential defendants. Indicate dates,
duration, nature of contact and any conclusions drawn, including
evidence of recalcitrance or cooperation. Initial contact may be
made during the PRP search. The following is a partial list of the
types of
19 9835.11-1
contacts that should be discussed in the litigation report.
1. Information requests, subpoenaed documents / testimony.
See, "Guidance on Use and Enforcement of CERCLA
Information Requests and Administrative Subpoenas" ( OECM
08/25/88 ).
2. Interviews with site or generator employees, truck drivers,
etc.
3. FOIA requests.
4. Demand letters ( CERCLA Section 107 actions only ).
5. Warrants, access orders or agreements.
6. Administrative order(s)
Describe any State or Federal AOs that have been issued to
anyone involved at the site and the current status of the
order(s). If the case involves enforcement of a Federal AO
under RCRA or CERCLA, the AO should be attached to the report
and the basis for and the facts surrounding any claim for
penalties or treble damages ( CERCLA only ) need to be
discussed.
7. Permit(s) ( State or Federal ) and permit applications
relevant to the referral.
List all permits issued to the facility or site and
discuss those that are relevant to this referral and any
actions required to enforce the conditions of the permit.
8. Federal lien - See, "Guidance on Federal Superfund Liens"
( OECM 9/22/87 ).
B. Involvement of State, local agencies and citizens.
Identify pertinent contacts or actions taken or anticipated by State
or local agencies and citizens. In particular, discuss local or State
civil or criminal enforcement actions taken or pending and describe
any role the State anticipates playing in an ongoing action. Any
notable positions that the State has taken regarding this site or
other CERCLA sites in the area of State involvement in remedy
selection or implementation decisions, or ARAR selection should
specifically be
20 9835.11-1
noted. Media coverage regarding the site should also be noted and
print media articles should be attached, if available.
C. Citizen suits filed.
Identify any relevant citizen suits. Identify plaintiffs and
defendants. Summarize claims asserted. Indicate date case was filed
and in what court. Describe case status.
D. Administrative or judicial actions ( regarding the site only ) filed by
State or filed or referred by Federal government under environmental
statutes other than RCRA, CERCLA or State counterparts thereof should be
discussed.
Include recent actions in all media and under all statutes. Include
any related or pending administrative enforcement proceedings ( e.g.,
CAA Section 113 / 120, TSCA Section 16(a), RCRA Section 3008, FIFRA
Sections 13 or 14(a), CWA Section 309, and MPRSA Section 105(a)
proceedings ). Generally discuss defendant's responses. Also
indicate recent contacts by / with program office permits staff.
E. RCRA facilities.
Where the site / facility is a RCRA facility or former RCRA facility
( e.g., LOIS, WOIS, or protective filers of a RCRA Part A permit ),
the rationale must be given for the decision to pursue Section 7003 or
Section 106 injunctive relief for site remediation, instead of
corrective action or closure pursuant to RCRA Section 3008(h) or, if
appropriate, Section 3004(u) or (v), where permitted. IMPORTANT:
See, NPL deferred listing policy for RCRA Sites, as described at 51
Fed. Reg. 21057 ( June 10, 1986 ) and 53 Fed. Reg. 30002 ( August 9,
1988 ). See also, "National Oil and Hazardous Substances Contingency
Plan; Proposed Rule." 53 Fed. Reg. 51394, 51415 ( December 21,
1988 ).
F. Prior Orders or Consent Decree(s)
Certain facilities or sites may have been subject to prior
administrative orders or consent decrees addressing other cleanup
actions or access. The Litigation report should include a general
description of the terms of the decree, whether the facility or site
owner complied with the terms of the decree and what statute and
claims were involved.
21 9835.11-1
XI. Cost Recovery
There are four elements to the prima facie case for cost recovery
relief under CERCLA:
* There is a release or threat of release of a hazardous
substance;
* The release or threat of release is from a facility;
* The release or threat of release caused the United States to
incur response costs,
* The defendant is in one of those categories of liable parties
in CERCLA Section 107(a).
Elements 1, 2, and 4 have been discussed in Section IX, above. 11/
11/ These three elements are typically part of the government's
"liability" case and should be established, in most cases, through
summary judgment. The evidence to establish the "release / threat"
and "facility" elements should be based on documents in the
administrative record for the selection of the response action.
The third element ( expenditure of response costs ), as described below,
has several facets to it. 12/
12/ To the extent that this element of the Section 107 prima facie case
involves review of remedy selection decisions, Section 113(j) requires
that review be on the administrative record. It is EPA's view that
under Section 107 of CERCLA, judicial review of costs incurred by EPA
is confined to proof that the implemented cleanup was consistent with
the response action selected by EPA, that the response action was
performed and that the claimed costs were actually incurred.
There are two general types of evidence that must be available to prove
costs: "work" evidence and "cost" evidence. The "work" evidence typically
will be in the form of documents and testimony detailing the activities
undertaken. The "cost" evidence will primarily involve documents detailing
the cost of those activities. The major guidance documents discussing
CERCLA costs and cost documentation requirements are:
* "Procedures for Documenting Costs for CERCLA Section 107
Actions" ( OWPE January 1985 )
22 9835.11-1
* "Financial Management Procedures for Documenting Superfund
Costs" ( FMD September 1986 )
* "Cost Documentation Requirements for Superfund Cooperative
Agreements, Appendix U" ( OSWER Directive 9375.14u )
* "Resource Management Directive 2550D - Financial Management of
the Superfund Program" ( Comptroller July 25, 1988 )
* "Superfund Cost Recovery Strategy" ( OSWER Directive No.
9832.13, July 25, 1988 )
Work and cost documents must be available for each of the cost areas in
a cost recovery case. In addition, official determinations regarding
expenditures of money should be discussed in the litigation report and the
corresponding documents included in the appendices ( e.g., approval memo for
removals exceeding $2.0M ). The referral should also indicate whether the
Region has redacted the cost documents for confidential business information
( CBI ) and, if not, a date by which it will do so.
A. Past cost summary ( by category of costs ).
As noted in prior guidance, the cost summary ( but not the entire cost
documentation package ) must be included in the litigation report.
Nonetheless, the complete cost documentation package must be compiled
in the Region at the time of the referral and supplemented thereafter
on a timely basis.
B. Response action cost elements and documentation.
The referral must clearly identify each of the Agency responses
undertaken at the site ( i.e., Removal(s), RI/FS, RD and RA ) and each
operable unit of each response.
Each phase of a response action will have certain types of
documentation required for proof of the costs for that phase of
response. Some of the documentation may be similar to that used in
proof of other phases of an overall response to a site. For each of
the response actions at a site, the following information and
documents must be gathered, organized and available in the Region at
the time of referral. Definitive guidance on the documents necessary
for cost recovery is contained in the manuals noted above.
23 9835.11-1
1. Each Federal contractor used and tasks performed.
a. Work done ( e.g., contracts, subcontracts, letter reports,
Technical Directive Documents ( TDDs ), work assignments, scopes of
work, work progress reports, TDD Acknowledgment of Completion );
b. cost of that work ( e.g., invoices, vouchers ); and
c. that payment was made ( e.g., paid / processed invoices, contract
status notifications, and Treasury Schedules ).
2. Each Interagency Agreement ( IAG ) employed and tasks performed.
a. Work done ( e.g., each IAG, contracts entered into by the other
Agency, work assignments, scope of work, work progress reports, and
acknowledgements of completion );
b. cost of that work ( e.g., invoices, vouchers, drawdown vouchers and
the pertinent reports to the agency );
c. that payment was made ( e.g., paid / processed invoices ).
3. Each cooperative agreement signed, tasks performed and contractors hired
by the State. 13/
13/ CERCLA Section 111(k) requires an Inspector General audit of the
Hazardous Substances Superfund and random audits of cooperative
agreements and State Superfund contracts. EPA's Inspector General also
does periodic site-specific general audits. The results of any site-
specific audits pertinent to the referral should be described and, if
not too voluminous, attached. Copies of audit reports may be obtained
from the Inspector General Division of the Office of General Counsel.
a. Work done ( e.g., each cooperative agreement and all amendments
thereto, contracts entered into by the State, work assignments,
scope of work, work progress reports, and acknowledgements of
completion );
24 9835.11-1
b. cost of that work ( e.g., invoices, vouchers, drawdown vouchers and
the pertinent reports to the Agency );
c. that payment was made ( e.g., paid / processed invoices ).
4. Agency personnel activities performed at the site.
a. Work done ( e.g., timesheets, travel authorizations );
b. cost of that work ( e.g., Agency financial management ( SPUR )
report, Travel Vouchers, etc. );
c. that payment was made ( Treasury Schedules ).
5. EPA indirect costs - Indirect cost calculation worksheets and summary
sheet should be included in the litigation report. See, "Superfund
Indirect Cost Manual for Cost Recovery Purposes: FY 1983 through
FY 1986" ( OARM March 1986 ); "Superfund Indirect Cost Rates for
Fiscal Years 1985 and 1986" ( OARM 12/17/87 ).
6. Interest
a. Identify date of demand and include copy of demand letter or other
document indicating initiation date used for calculation of
prejudgment interest.
b. Include spreadsheet or other documents showing prejudgment interest
calculations.
See, CERCLA Section 107(a); Comptroller Policy Announcement 87-17:
"Interest Rates for Debts Recoverable Under the Superfund Amendments and
Reauthorization Act of 1986" ( 09/30/87 ); "Interest Rates for Superfund
Related Debts" ( Comptroller 6/15/88 )
C. Projected future costs.
1. An estimate of the types, amounts and basis of future expenditures,
if they are planned or can reasonably be projected, should be
included.
25 9835.11-1
2. Future costs ( or even a declaratory judgment concerning liability
for future costs 14/ ) are, for tactical reasons, not always
sought in each case.
14/ See, CERCLA Section 113(g)(2).
If they are not sought ( i.e., no potential statute of limitations
problem ), an explanation why not should be included.
D. Potential problems with costs. ( See also, IX.C.5., above )
1. The referral should describe and include any documents discussing
or criticizing any cost figures or activities undertaken, including
the On-Scene Coordinator's Report ( 40 CFR 300.40 ) or any
Congressional investigations or Inspector General audits not
described previously that refer to or directly discuss the site
cleanup activities or costs.
2. Any potential problems regarding consistency with the National
Contingency Plan should also be discussed.
E. Statute of Limitations ( CERCLA Section 113(g)(2) )
Discuss any potential statute of limitations issues. See, "Timing of
Cost Recovery Actions" ( OWPE, October 7, 1985 ). See also, "Cost
Recovery Actions / Statute of Limitations" ( OWPE, June 12, 1987 ).
Indicate relevant dates.
F. Identify any prior proceeds received.
1. Ten percent state share
2. Prior settlement proceeds ( received and expected )
3. Bankruptcy proceeds
XII. Penalties and Punitive Damages
A. Section 106(b) - State whether defendant has violated an order issued
under Section 106. The referral must describe all evidence showing
that defendant willfully violated or failed or refused to comply
with the order, without sufficient cause. Discuss all arguments
that defendant may raise justifying failure to comply with the
order ( e.g., not a responsible party, terms of order were
arbitrary ).
26 9835.11-1
Set forth calculation of penalties. Discuss all opportunities
defendant had to meet with Agency prior to issuance of the order.
Note the possibility that, under Tull v. United States, 481
U.S.___, 107 S.Ct. ___, 95 L.Ed. 2d 365 (1987), the case may
involve a jury trial. 15/
15/ Under Tull, the Supreme Court held that the Seventh Amendment to the
Constitution may guarantee a jury trial to determine liability in Clean
Water Act civil enforcement cases seeking civil penalties. Under that
ruling, however, a jury does not assess the amount of penalties, nor is
a jury required in an action brought solely for injunctive relief. The
government's position is that a jury trial is not available to decide
liability issues where a court can decide the case through summary
judgment ( e.g., where no issues of material fact are present ).
Any referral that proposes civil penalties must contain some
analysis of the penalty aspects of the case in light of Tull.
B. Section 107 - Defendant may be liable for punitive damages in an amount
equal to and not more than three times the amount of costs incurred
by the Hazardous Substances Superfund if defendant failed without
sufficient cause to properly carry out removal or remedial action
under a CERCLA Sections 104 or 106 order. Discuss the nature of
and evidence supporting proof of defendants' violations, the amount
and basis for damages sought under this authority, and any
justifications defendant may have for failing to perform the
action.
XIII. Injunctive Relief
Under this section of the litigation report, the substantive
requirements of the relevant portions of the applicable statute should be
presented. Applicable case law should be cited and analyzed. If a novel
theory is proposed, support for that theory should be included. In
addition, any determinations that are required by statute or regulations
( e.g., that an imminent and substantial endangerment exists at the site )
should be described and documented in the administrative record.
A. CERCLA Section 106 16/
16/ See, "Guidance on CERCLA Section 106 Judicial Actions" ( Reich /
Porter, 2/29/89 ) for factors considered in selecting and initiating
Section 106 actions.
CERCLA Section 113(j) clearly provides that CERCLA remedy selection
decisions are entitled to review based upon the
27 9835.11-1
administrative record. 17/
17/ To assist in ensuring record review of the remedy selection decision,
the Region also should typically issue a unilateral administrative
order under CERCLA Section 106 after the ROD is signed.
That decision will be based on, among other things, evidence of two of
the three core elements of the CERCLA prima facie case ( noted in detail
in Section IX.A., above ): (1) the release or threat of release of
hazardous substances, (2) from a facility.
The key additional element for a Section 106 action, aside from
liability, is that there be a condition which presents or may present an
imminent and substantial endangerment to public health or welfare or the
environment. Evidence on this subject generally will be available
through the results of activities undertaken pursuant to Subpart F -
Hazardous Substance Response of the NCP ( 40 CFR Part 300 et seq. ).
The endangerment assessment / risk assessment typically contained in the
RI, or as a separate document, is the critical piece of information.
The evidence to support these three elements of the Section 106
prima facie case should be addressed in and be part of the RI and FS and
will be documented in the ROD as part of the Agency's remedy selection
decision. The remedy selection decision in the ROD itself should define
the injunctive relief EPA will seek and should be upheld if it is
supported by the administrative record and is not arbitrary and
capricious. 18/
18/ The case law on the standard of review for remedy selection decisions
in the context of CERCLA Section 106 actions that were filed pre-SARA
has been split. However, it is the Agency's position that record
review with an arbitrary and capricious standard is applicable.
Of course, to complete the CERCLA Section 106 prima facie case, the
United States will still have to present evidence on liability ( i.e.,
that the party is a responsible party ( including but not limited to
these classes of persons liable under CERCLA Section 107(a) ) ) and may
have to present evidence showing that any alleged affirmative defenses
under Section 107(b) are inapplicable, 19/ both of which might be
reviewed by the court de novo.
19/ The Section 107(b) defenses to liability typically are available in
Section 106(a) actions for injunctive relief.
See, Section IX., above.
28 9835.11-1
B. RCRA Section 7003 ( See Appendix I )
The prima facie case for RCRA Section 7003 is slightly different
than that for CERCLA Section 106. Success on the merits under RCRA
Section 7003 requires proof of the following elements:
* Past or present handling, storage, treatment, transportation
20/ or disposal,
* of a hazardous or solid waste,
* may present an imminent and substantial endangerment to health
or the environment, and
* the party has contributed or is contributing to such handling,
storage, treatment, transportation or disposal.
20/ Note that RCRA Section 7003 contains an exemption from liability for
certain transporters, similar to the exemption in CERCLA Section
101(20).
If a RCRA Section 7003 count ( or other non-CERCLA statutory
"endangerment" claim ) is proposed, causation and record review of
remedy selection will probably be raised by defendants. Since RCRA does
not on its face provide for record review, and the reach of CERCLA
Section 106 and RCRA Section 7003 is generally coextensive, 21/ the
referral should identify the specific reason for inclusion of the RCRA
Section 7003 ( or other "endangerment" ) claims.
21/ RCRA Section 7003 applies to "solid or hazardous wastes," which is a
broader universe of materials than "hazardous substances."
These RCRA Section 7003 prima facie case elements are discussed briefly
below and more extensively in Appendix I:
1. Past or present handling, storage, treatment, transportation or
disposal.
Describe the facility or PRP activities that come within the
meanings of these terms. ( "Treatment", "storage" and
"disposal" are all defined in RCRA Section 1004. )
2. Hazardous or solid waste.
Each material that is the subject of the referral for which
liability is sought to be imposed must be
29 9835.11-1
identified as a hazardous waste or a solid waste. See, RCRA
Sections 1004(5) and 1004(27), respectively. See also, 40 CFR
261.3 and 40 CFR 261.2, which, while not directly governing
Section 7003 actions, also delineate materials as hazardous
wastes due to their characteristics or because they are
specifically listed as such in the regulations.
3. May present an imminent and substantial endangerment to health or
the environment.
Although we will argue for record review in these cases,
additional evidence may need to be adduced. A discussion of
the types of evidence that may be needed to support this
element of the RCRA Section 7003 case is included in Appendix
I.
4. The party has contributed or is contributing to such handling,
storage, treatment, transportation or disposal.
This aspect of the RCRA Section 7003 prima facie case may be
an additional, different burden than faced under CERCLA. The
referral must discuss the available documentary and
testimonial evidence that will be used to show that a
particular generator's waste ( or at least the same type of
waste when the wastes have commingled ), or an owner /
operator's actions "has contributed or is contributing to" a
situation that may present an imminent and substantial
endangerment.
XIV. Other Legal Issues
A. Potential defenses / exclusions ( other than those noted in
Sections IX.B.1.j., IX.B.2.j. and IX.C., above ).
B. Statute of limitations
See, Section XI.E., above, regarding the CERCLA statute of
limitations. Since RCRA contains no specific statute of
limitations, underlying facts relating to the timing of any
action under RCRA, including any potential limitations, should
be included.
C. Applicability of prior consent decree or A.O. entered for this
site. See, Section X.F., above.
D. Res judicata / collateral estoppel / equitable estoppel.
30 9835.11-1
XV. Litigation / Settlement Strategy
A. Case Management Planning
1. A preliminary draft case management plan should be prepared.
See "Case Management Plans" ( Adams / Marzulla 3/11/88 ).
Availability of and proposed assignments for Regional legal
and technical personnel should be noted in the draft plan.
B. Settlement Negotiations
1. Prior efforts to settle.
Describe history or attempts to settle by way of notice /
demand / special notice letters, PRP meeting, etc.
2. Special notice
Discuss whether special notice was sent and the results.
See, "Interim Guidance on Notice Letters, negotiations, and
Information Exchange" ( OWPE, 10/19/87 )
3. History of negotiations.
Describe nature, extent and duration of prior or ongoing
settlement discussions regarding subject of this referral,
or negotiations concerning other pending environmental civil
or administrative actions. ( When available, include
discussions and attempts to settle by State. ) Describe
attempts at compromise and why process failed. Attach a copy
of latest version of AO or CD discussed with PRPs before
negotiations were terminated.
4. Planned Future Negotiations
If additional negotiations are to be pursued immediately
after filing, include a brief settlement evaluation ( See,
Interim CERCLA Settlement Policy, 50 Fed. Reg. 5034 ),
recommending a bottom line and a suggested negotiation
strategy. See also, "DRAFT CERCLA RD/RA Settlement
Negotiations Checklist" ( OECM, 01/26/88 ).
a. State whether this case may appropriate for mixed
funding. See, "Evaluating Mixed Funding Settlements
under CERCLA" ( OECM / OSWER, 10/20/87 ).
31 9835.11-1
b. State whether this case has the potential for de minimis
settlements. See, "Interim Guidance On Settlements with
De Minimis Waste Contributors under SARA Section 122(g)"
( OECM / OSWER 06/19/87 ) ( 52 Fed. Reg. 24333,
06/30/87 ).
5. Include discussion of and a copy of any Non-Binding
Preliminary Allocation of Responsibility ( NBAR ) and
responses by PRPs.
See, "Interim Guidelines for Preparing Preliminary Non-
Binding Allocations of Responsibility" ( OSWER, 5/16/87 )
( 52 Fed. Reg. 19919, 5/28/87 ).
C. Litigation Strategy
1. Discovery 22/
22/ Despite the availability of record review for issues regarding the
adequacy of remedy selection, discovery will be available for certain
other aspects of CERCLA cases, such as for issues regarding liability.
Indicate general need for obtaining evidence ( especially for
critical facts ) by discovery ( interrogatories, depositions
and requests for admissions ) on issues of liability and, in
certain instances, response costs. ( Include names and
addresses, if available, of potential witnesses and the
evidence to be sought from such persons. )
Discuss the approach to be taken in managing discovery and
document production if the action involves multiple parties or
massive numbers of documents.
2. Summary Judgment
Indicate if case has potential for summary judgment or partial
summary judgment and on what issues. Explain briefly.
XVI. Other Imminent Hazard Provisions
The referral should carefully consider whether claims exist under the
imminent hazard provisions of the other Federal statutes listed below.
The Appendices to the RCRA / CERCLA Case Management Handbook describe
and discuss each element of
32 9835.11-1
proof, listed below, for these other statutes and should be consulted.
A. Clean Air Act Section 303, 42 USC Section 7603
1. A pollution source or combination of sources ( including
moving sources ) ( See, 42 USC Sections 7521-7574; 42 USC
Section 7602(j) ),
2. is presenting an imminent and substantial endangerment to the
health of persons.
3. State and local authorities have not acted to abate such
sources.
4. Defendant is a person causing or contributing to the alleged
pollution.
5. EPA has confirmed the correctness of its information.
B. Clean Water Act Section 504, 33 USC Section 1364
The Administrator may seek injunctive action to stop the discharge
of pollutants or take such other action as may be necessary ( See,
CWA Sections 504(a), 502(12), (6), (7), (9), (10), (14) ) where the
Administrator receives evidence that:
1. A pollution source or combination of sources ( See, CWA,
Section 504(a), 502(19), (12), (6), (7), (14), (9), (10),
306(a)(3) ),
2. is presenting an imminent and substantial endangerment to (1)
the health of persons or (2) to the welfare of persons where
such endangerment is to the livelihood of such persons, such
as inability to market shellfish ( 504(a) ).
3. Defendant is a person causing or contributing to the alleged
pollution ( 504(a), 502(19) ). See also, discussion on RCRA
Section 7003, Section XIII.B., above.
C. Safe Drinking Water Act Section 1431, 42 USC Section 300i
The Administrator may seek appropriate relief to protect health of
affected persons, including injunctive relief, when the
Administrator is in receipt of evidence that:
1. A contaminant or contaminants ( Section 300i(a), Section
300f(6) ),
33 9835.11-1
2. present in or likely to enter ( Section 300i(a) ),
3. a Public Water System ( Section 300i(a), Section 300f(4) ) or
an underground source of drinking water,
4. may present an imminent and substantial endangerment to the
health of persons, and
5. appropriate State and local authorities have not acted to
protect the health of such persons.
6. Where practicable, EPA consulted with State and local
authorities.
7. Information on State or local action taken, if any. ( Note:
This provision is silent as to definition of responsible
parties. )
XVII. Witnesses / Litigation Support
A. Witnesses
1. For fact witnesses identified in the litigation report that
have potentially relevant information, the following should be
referenced in the referral package:
* Present place of employment
* Home and business phone
* Substance of testimony
* Whether statement is on file.
2. For potential expert witnesses, the following are required in
addition:
* Field of expertise ( include resume and any reports
generated by expert regarding this site or facility )
* Whether individual is under EPA contract, and if so
through what contracting mechanism.
* Other cases where the expert has testified, been deposed
or otherwise been retained in the past.
34 9835.11-1
3. Potential adverse witnesses ( fact or expert ) should also be
identified, to the extent known, and the substance of their
potentially adverse testimony should be indicated.
B. Litigation Support
1. Identify any contractor resources necessary and present plans
for procuring such resources.
2. Provide an estimate of the relative resource demands that the
Region anticipates will be required for the proposed
litigation and indicate any specific workload model
projections attributed to this case.
9835.11-1
This document was prepared
as suggestion and guidance
only.
PRIMA FACIE CASE
RCRA SECTION 7003;
( 42 USC Section 6973 )
___________________________________________________________________________
FACTS TO BE PROVEN STATUTORY BASIS COMMENTS
___________________________________________________________________________
I. Administrator must
present evidence
of:
A. 1. Handling, Disposal includes when waste
2. Storage, 1004(33) 1/ is first deposited, dumped,
3. Treatment, 1004(34) spilled, or placed onto the
4. Transportation 1004(3) 2/ ground and also when wastes
or later migrate. It includes
5. Disposal leaking ( i.e., discharging
and "repositioning" ) as
well as "reposing" wastes.
See, U.S. v. CCC, 619 F.
Supp. 162, 199-200.
B. Of either:
1. Solid Waste, 1004(27) Very broad definition of
or 40 CFR 261.2 solid waste, but note
specific exceptions. See
also, American Mining
Congress v. EPA, 842 F.2d
1177 ( D.C. Cir. 1987 )
holding that EPA exceeded
its authority under RCRA in
seeking to regulate as
"solid wastes" secondary
materials reused in an
ongoing manufacturing
process. See also, 53
Fed. Reg. 519 ( January 8,
1988 ), for EPA's
interpretation of that
decision.
2. Hazardous 1004(5) The definition states that a
Waste 40 CFR 261.3 waste is hazardous if it
"may . . . cause, or
significantly contribute to
an increase in illness or
mortality, or if it "may
. . . pose a substantial
present or potential hazard
to human health or
environment" when managed.
These terms indicate a scope
broader than the strict,
conventional "causation."
Listing in RCRA regulations
( 40
1/ 42 USC Section 6903 is the definitions section of RCRA.
2/ See also Hazardous Materials Transportation Act, 49 USC Sections 1801,
1802(6), 1809, 1810.
-2- 9835.11-1
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FACTS TO BE PROVEN STATUTORY BASIS COMMENTS
___________________________________________________________________________
CFR Part 261 ) or evidence
that it is a
"characteristic" waste under
Part 261 is sufficient to
establish that a material is
is a "hazardous waste."
C. May present
D. An imminent and Imminence applies to nature
of threat rather than the
identification of the time
when the endangerment
actually materialized. 3/
An endangerment is imminent
if factors giving rise to it
are present, even though the
harm may not be realized for
years. U.S. v. CCC, 619 F.
Supp. 162, 193 ( W.D. Mo.
1985 ).
substantial endangerment An endangerment is not
necessarily an actual harm
but may also arise from
threatened or potential
harm; no actual injury need
even occur. Evidence must
show only risk of harm.
See, CCC at 192; Ethyl Corp.
v. EPA, 541, F.2d 1 ( D.C.
Cir. 1976 ), cert. den. 426
U.S. 941 (1976); United
States v. Reserve Mining,
514 F.2d 492 ( 8th Cir.,
1975 ); United States v.
Vertac, 489 F. Supp. 870,
885 ( E.D. Ark. 1980 ).
Similarly, the U.S. need not
quantify the harm to
establish endangerment. An
endangerment is substantial
if there is reasonable cause
for
3/ H.R. Committee Print ( 96-IFC 31, 96th Cong. 1st Sess. 32 (1979) ).
-3- 9835.11-1
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FACTS TO BE PROVEN STATUTORY BASIS COMMENTS
____________________________________________________________________________
concern that someone or
something may be exposed to
risk of harm by a release
or threat of release if
response action is not
taken. CCC at 191-197.
See also legislative
history and case law
interpreting other
"endangerment" provisions
of Federal law, including
Sections 504(a) and 311(e)
of the Clean Water Act,
Section 1431 of the Safe
Drinking Water Act, Section
303(a) of the Clean Air
Act, Section 7 of the Toxic
Substances Control Act;
Section 6(c) of the Federal
Insecticide, Fungicide and
Rodenticide Act; Section
2601 of the Consumer
Product Safety Act; Section
662 of the Occupational
Safety and Health Act;
Section 1810(b) of
Hazardous Materials
Transportation Act; Section
1511(b) of the Deep Water
Ports Act; Section 1415 of
the Marine Protection,
Research and Sanctuaries
Act, and Section 355(e) of
the Federal Food, Drug and
Cosmetic Act.
E. To
1. Health, or
2. The environment The term incorporates
surface water, groundwater,
soil, and air, and probably
includes fish, mammals,
biota, and plant life.
-4- 9835.11-1
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FACTS TO BE PROVEN STATUTORY BASIS COMMENTS
____________________________________________________________________________
II. Liable Persons Any person ( including any
past or present generator,
past or present
transporter, or past or
present owner or operator
of a treatment, storage or
disposal facility ) who has
contributed or who is
contributing to the alleged
handling, storage,
treatment, transportation
or disposal of a solid or
hazardous waste that may
present an imminent and
substantial endangerment to
health and environment.
Such liable persons may
include owners or operators
of the site, former owners
or operators, ( both of
which may include
landowners or lessors ),
corporate officers and
directors ( in their
official and, in
appropriate circumstances,
individual capacities )
waste generators, and
( unless exempted by
Section 7003 ) waste
transporters. See, e.g.,
U.S. v. Aceto Agricultural
Chemicals Corp., No. 88-
1580 ( 8th Cir. April 25,
1989 ), U.S. v. NEPACCO,
810 F.2d at 740, 745 ( 8th
Cir. 1986 ), cert. denied
108 S.Ct. 146 (1987); U.S.
v. CCC, 619 F. Supp. at
198.
III. Relief:
A: To restrain Included in relief granted
liable persons by courts in Section 7003
from: actions are: restraint of
continued leaking,
1. Handling requirement to undertake
2. Storage 1004(33) investigative activities
3. Treatment 1004(34) ( Price, 688 F.2d 204 ( 3rd
4. Transportation Cir. 1982 ) ); preparation
5. Disposal 1004(3) and implementation of plans
for removal of wastes
( Midwest Solvents
Recovery, 484 F. Supp. 138
( N.D. Ind. 1980 ) );
injunction against further
activities on site,
formulation of plans for
security and removal of
-5- 9835.11-1
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FACTS TO BE PROVEN STATUTORY BASIS COMMENTS
____________________________________________________________________________
wastes ( Ottati and Goss,
Civil No. C80-225-L ( D.
N.H. ) ( Memorandum opinion
December 2, 1980 ) ). See
also, U.S. v. Diamond
Shamrock, Civil No. C80-
1857 ( N.D. Ohio )
( Memorandum Opinion, May
29, 1981 ).
B. To order such Authorizes affirmative
other action as equitable relief to extent
may be necessary necessary to clean up site.
See, Price, 688 F.2d at
213-14; CCC, 619 F. Supp.
162, 201.
C. To recover U.S. A right to recovery Federal
expenditures funds has been implied
since Section 7003 does not
contain any express
authority to seek cost
recovery. See, U.S. v.
NEPACCO, 810 F.2d at 747;
U.S. v. Price, 688 F.2d
214; U.S. v. CCC, 619 F.
Supp. at 201. See also,
Wyandotte Trans. Co. v.
U.S. 389 U.S. 191 (1967)
( Clean Water Act ); U.S.
v. Moran Towing and
Transportation Co., 409
F.2d 961 ( 4th Cir. 1969 )
( Clean Water Act );
Restatement, Torts Section
919(l).
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