2011-2991. Access in Litigation to Confidential Business Information; Transfer of Information Claimed as Confidential Business Information to the United States Department of Justice and Parties to Certain Litigation

AGENCY:

Environmental Protection Agency (“EPA”).

ACTION:

Notice.

SUMMARY:

EPA has authorized the United States Department of Justice (“DOJ”) to disclose, in response to discovery requests received by the United States 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 “Anadarko Litigation”), and in response to discovery requests received by defendants Kerr-McGee Corporation and Anadarko Petroleum Corporation (the “Anadarko Securities Litigation Defendants”) in the litigation styled, In re Tronox, Inc., Securities Litigation 09-cv-06220 (SAS), pending in the United States District Court for the Southern District of New York (the “Tronox Securities 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”). On October 21, 2010, EPA provided notice in the Federal Register, 75 FR 65013 (the “Anadarko Litigation FRN”), of past disclosure and of ongoing and contemplated future disclosure in the Anadarko Litigation. EPA is providing notice of contemplated future disclosure in the Tronox Securities Litigation. Interested persons may submit comments on this Notice to the address noted below.

DATES:

Access by DOJ and/or the parties to the Tronox Securities 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 Tronox Securities Litigation. EPA will accept comments on this Notice through February 22, 2011.

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), EPA has disclosed information, including CBI, to DOJ in response to a written request for information from DOJ and/or on the initiative of EPA because such disclosure was necessary to enable DOJ to carry out a litigation function on behalf of EPA. 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, EPA regarding the debtors' environmental liabilities, including liabilities at sites at which EPA's contractors may have provided services.

The parties to the Anadarko 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), and pursuant to the Anadarko Litigation FRN, EPA authorized DOJ to disclose information that originated from EPA to the extent required to comply with the discovery obligations of the United States in the Anadarko Litigation, including its obligations under the AGP.

The lead plaintiffs in the Tronox Securities Litigation have served the Anadarko Securities Litigation Defendants with document requests seeking, inter alia, the production of documents that have been produced to the Anadarko Securities Litigation Defendants in the Anadarko Litigation. The Anadarko Securities Litigation Defendants are seeking to produce documents to the lead plaintiffs in the Tronox Securities Litigation, which will include documents the United States produced to the Anadarko Securities Litigation Defendants in the Anadarko Litigation, some of which was designated “Confidential” (the “USA Confidential Documents”) pursuant to the AGP.

On December 28, 2010, the parties to the Tronox Securities Litigation entered into an Agreed Protective Order, see Document No. 113 in the District Court docket (the “Tronox Securities Litigation AGP”), that will govern the treatment of information that is designated “Confidential” pursuant to the Tronox Securities Litigation AGP. The Tronox Securities Litigation 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., Tronox Securities Litigation AGP, at ¶¶1, 9-10, 12-17, 21.

In accordance with 40 CFR 2.209(d), EPA is hereby giving notice that it has authorized DOJ to consent to the production of the USA Confidential Documents by the Anadarko Securities Litigation Defendants to the lead plaintiffs in the Tronox Securities Litigation, so long as the USA Confidential Documents may be re-designated as “Confidential” pursuant to the Tronox Securities Litigation 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 Anadarko Securities Litigation Defendants will release to parties in the Tronox Securities Litigation pursuant to the Tronox Securities Litigation 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 Tronox Securities 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 EPA under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”), including information provided to EPA, directly or indirectly, pursuant to section 104 of CERCLA. All CBI that is disclosed in the Tronox Securities 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 EPA at sites involved in the Anadarko Litigation, including but not limited to the companies and agencies set forth in the Anadarko Litigation FRN.

Dated: February 3, 2011.

Elliott Gilberg,

Director, Office of Site Remediation Enforcement.