Many businesses located in or near Superfund sites eventually will receive a Section 104(e) Information Request from EPA. This is particularly true at large aquatic sites such as the Portland Harbor Superfund Site in Oregon, the Lower Duwamish Superfund Site in Seattle, the Fox River in Wisconsin and other sites involving industrial corridors adjacent to waterways. Often, the number of entities receiving these requests can be in the hundreds for each site (my last count for the Duwamish had over 200 entities on EPA’s list). This post gives some background on what these requests are, what they mean, and how a business should go about responding to these requests.
What is a Section 104(e) Information Request?
Section 104(e) information requests are one mechanism EPA uses to gather information regarding releases of hazardous substances at federally-listed cleanup sites, and are the central component of EPA’s search for parties that may be responsible for contamination at a Superfund site (so-called “Potentially Responsible Person” or “PRP” searches). In short, a Section 104(e) information request is the first step in evaluating a party’s liability under CERCLA. EPA has, pursuant to CERCLA Section 104(e) (the federal “Superfund” law) the ability to require any person (not just those thought to be responsible for the contamination at a Superfund site) to furnish information or documents related to hazardous substances that were either generated, treated, stored or disposed of at a “vessel or facility” or information regarding the release or threatened release of a hazardous substance, pollutant, or contaminant from a “vessel or facility.” Section 104(e) also gives EPA the authority to inquire into the ability of a person to pay for or perform a cleanup. Because the terms “vessel” and “facility” are defined broadly under CERCLA, this authority is sweeping in scope—allowing EPA to inquire into activities at a broad range of properties and businesses.
How do you respond to Section 104(e) Information Requests?
EPA often requires a response within a short time period (often 30 days), and responding to these requests is mandatory. Failure to respond can result in significant fines (up to $25,000 per day). EPA will, however, grant time extensions and work with parties as they respond to these requests-particularly where such requests involve searches of business records that can span many decades. Such extensions may be necessary, as these information requests have the potential to upset day-to-day business operations as parties scramble to respond.
Parties receiving such requests often prepare responses without consulting an attorney, either by utilizing in-house resources or a consultant. Because these requests are often first steps in evaluating liability under CERCLA, it is worth considering whether to consult with an attorney. Having an attorney prepare the response may have many practical and strategic advantages. For instance, there are open-ended questions as to what constitutes an adequate search of records; whether materials prepared in response are protected from future disclosure under the attorney work product doctrine; and how to protect confidential business information. Cooperating with EPA early in the process may help to diffuse tensions, and being recalcitrant in this phase of the process rarely yields positive business results. I’ve seen some responses that were downright flippant and dismissive of EPA. While it may be frustrating to receive these types of requests, being flippant and dismissive is like pulling on the proverbial tiger’s tail.
Finally, responding to these requests can be expensive. A recent decision out of Oregon ruled that a Section 104(e) request triggers an insurer’s “duty to defend” under certain insurance policies. This duty to defend may be an important source of funds for a party responding to the request, and can potentially be used to finance the use of an attorney and/or a consultant in responding to the request.