2010-26524. Access in Litigation to Confidential Business Information

AGENCY:

Environmental Protection Agency (“EPA”).

ACTION:

Notice of Transfer of Information Claimed as Confidential Business Information to the United States Department of Justice and Parties to Certain Litigation.

SUMMARY:

The EPA has authorized the United States Department of Justice (“DOJ”) to disclose, in response to discovery requests received in the litigation styled, Tronox Incorporated, et al., v. Anadarko Petroleum Corp., et al., Adv. Proc. No. 09-01198 (ALG), pending in the United States Bankruptcy Court for the Southern District of New York (the “Litigation”), information which has been submitted to EPA by its contractors that is claimed to be, or has been determined to be, confidential business information (“CBI”). The EPA is providing notice of past disclosure and of ongoing and contemplated future disclosure. Interested persons may submit comments on this Notice to the address noted below.

DATES:

Access by the DOJ and/or the parties to the Litigation to material discussed in this Notice that has been either claimed or determined to be CBI is ongoing, and is expected to continue in the future during the pendency of the Litigation. The EPA will accept comments on this Notice through October 30, 2010.

ADDRESSES:

For further information contact Craig Kaufman, Attorney-Advisor, Office of Site Remediation Enforcement, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW. (Mail Code 2272A), Washington, DC 20460; telephone number: [phone]; e-mail address: [e-mail].

SUPPLEMENTARY INFORMATION:

In accordance with 40 CFR 2.209(c)(1), the EPA has disclosed information, including CBI, to the DOJ in response to a written request for information from the DOJ and/or on the initiative of the EPA because such disclosure was necessary to enable the DOJ to carry out a litigation function on behalf of the EPA. The DOJ has been served with discovery requests seeking, among other things, documentation supporting the proofs of claim filed by the United States of America in the bankruptcy styled, In re Tronox Incorporated, et al., Case No. 09-10156 (ALG) (Chapter 11), pending in the United Stated Bankruptcy Court for the Southern District of New York (the “Bankruptcy”). Those proofs of claim were filed on behalf of, inter alia, the EPA regarding the debtors' environmental liabilities, including liabilities at sites at which the EPA's contractors may have provided services.

The parties to the Litigation have entered into an Agreed Protective Order, see Document No. 248 in the Bankruptcy docket, as amended on August 12, 2009, see Document No. 622 (together, the “AGP”), that will govern the treatment of information, including CBI, that is designated “Confidential” pursuant to the AGP. The AGP provides for limited dissemination of confidential information and for the return or destruction of confidential information at the conclusion of the Litigation. See, e.g., AGP, at ¶¶ 1, 10, 12-16, 21.

In accordance with 40 CFR 2.209(d), the EPA is hereby giving notice that it has authorized the DOJ to disclose information that originated from the EPA to the extent required to comply with the discovery obligations of the United States in the Litigation, including its obligations under the AGP. Accordingly, business information that is ordinarily entitled to confidential treatment under existing Agency regulations (40 CFR Part 2) may be included in the information that the DOJ will release to parties in the Litigation pursuant to the AGP.

As explained by EPA's Office of General Counsel at its Web site, http://www.epa.gov/​ogc/​documents.htm,, the CBI that may be disclosed in the Litigation could include, but is not limited to, business information submitted by contractors and prospective contractors, see generally Class Determination 1-95; business information submitted in technical and cost proposals, see generally Class Determination 2-78; and business information submitted in contract proposals and related documents, see generally Class Determination 2-79. CBI may also include information obtained by the EPA under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”), including information provided to the EPA, directly or indirectly, pursuant to section 104 of CERCLA. All CBI that is disclosed in the Litigation will be designated “Confidential” pursuant to the AGP.

Information, including CBI, discussed in this Notice may relate to certain companies and agencies that have provided services for the EPA at sites involved in the Litigation, including but not limited to the following: Agency for Toxic Substances and Disease Registry; Alion Science & Technology Corporation; Alpha Woods Hole Laboratories; Arctic Slope Regional Corporation; ASRC Management Services, Incorporated; CDM Federal Programs Corporation; CH2M Hill Incorporated; Clayton Environmental Consultants; Columbia Analytical Services; Computer Services Corporation; Contract Laboratory Program; Datachem Laboratories, Incorporated; DynCorp International; Ecology & Environment, Incorporated; Environmental Control Technology Corporation; EnviroSystems, Incorporated; Foster Wheeler Environmental Corporation; GRB Environmental Services, Incorporated; Illinois Environmental Protection Agency; Industrial Economics, Incorporated; InStep Software, LLC; Integrated Support Systems, Incorporated; Keystone Environmental Resources Incorporated; Lancaster Laboratories; Lata-Kemron Remediation, LLC; Laucks Testing Laboratories, Incorporated; Liberty Analytical Corporation; Lockheed Environment Systems and Technologies Company; Lockheed Environmental & Technologies Remote Sensing Support; Lockheed Martin Services Incorporated; Malcolm Pirnie, Incorporated; Metcalf & Eddy, Incorporated; Mitkem Laboratories; NewFields; OHM Remediation Services Corporation; Resource Applications, Incorporated; Ronson Management Corporation; Routine Analytical Services; Roy F. Weston, Incorporated; Science Applications International Corporation; Special Analytical Services; S.S. Papadopulos & Associates, Incorporated; Stevenson; STN Environmental Joint Venture; TechLaw, Incorporated; Tetra Tech EM Incorporated; The Conti Group; Toeroek Associates, Incorporated; TRC Environmental Corporation; United States Environmental Services, LLC; United States Army Corps of Engineers; United States Department of the Interior; and Westinghouse Remediation Services, Incorporated; Weston Solutions, Incorporated; Wisconsin Department of Natural Resources; WRS Infrastructure and Environment Incorporated; York Laboratories.

Dated: October 18, 2010.

Sandra Connors,

Acting Deputy Director, Office of Site Remediation Enforcement.