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118568332
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JGR/Environmental Protection Agency - [Lawsuit] (4 of 7)
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118568332
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JGR/Environmental Protection Agency - [Lawsuit] (4 of 7)
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Records of the Office of Counsel to the President (Reagan Administration)
John Roberts' Subject Files
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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Environmental Protection Agency -
[Lawsuit] (4 of 7)
Box: 23
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
V. United States, 360 U.S. 109 (1959), there is no reason why, in
the compelling and unique circumstances present here, such
principles should bar review in this case.
In arguing that the Speech or Debate Clause bars this action,
defendants focus largely on the impropriety of the issuance of any
injunctive or "coercive" relief against members of the House.
While it is true that the original complaint in this action
contained a prayer for injunctive relief, the amended complaint
seeks declaratory relief only. Much of the defendants'
arguments are therefore no longer applicable. For example,
defendants argue that Eastland V. United States Servicemen's Fund,
421 U.S. 491 (1975), bars this suit because the Supreme Court
there rejected the proposition that a court could "enter a 'coer-
cive order' which in context would mean that the Subcommittee
would be prevented from pursuing its inquiry by use of a subpoena
to the bank." 421 U.S. at 512. Defendants' brief at 16-17. But
in Eastland, injunctive and declaratory relief were sought immedi-
ately after the issuance of the Subcommittee subpoena. In that
context, injunctive or declaratory relief would have effectively
interfered with the ongoing investigation. Here, on the other
hand, a declaratory judgment will produce none of the coercive
effects that would have resulted had either an injunction or a
declaratory judgment been entered in Eastland.
At the time the original complaint was filed, the contempt
resolution had not been certified or delivered to the United
States Attorney.
- 45 -
Indeed, as noted above, the situation here is similar to that
in United States V. A.T.&T., 567 F.2d 121 (D.C. Cir. 1977).
There, the United States filed suit and invoked executive privi-
lege to prevent A.T. & T. from complying with a congressional
subpoena which sought highly sensitive national security informa-
tion in A.T. & T.'s possession. The House Subcommittee seeking
that information intervened. It contended that Speech or Debate
principles barred the suit because a judicial resolution of the
dispute would interfere with its investigatory activities.
The Court of Appeals for this circuit flatly rejected this
contention. After reviewing Watkins, Barenblatt and Senate Select
Committee V. Nixon, the court stated:
individual members of Congress are
not impermissibly 'questioned in any other
place' regarding their investigatory activities
merely because the validity and permissibility
of their activities are adjudicated
As
is clear from Watkins, Barenblatt and Senate
Select Committee, however, the [Speech or
Debate] Clause does not and was not intended to
immunize congressional investigatory actions
from judicial review. Congress' investigatory
power is not, itself, absolute.
[567 F.2d
at 1291.
The court, therefore, concluded that judicial intervention was not
precluded by Speech or Debate principles because those principles
are primarily intended to protect individual legislators from
personal suits against them for legislative activities. Where
that is not the case, "the Clause cannot be invoked to immunize
the congressional subpoena from judicial scrutiny." 567 F.2d at
130.
46 1 I
C.
The Clause May Not Be Asserted To
Immunize Non-Legislative Activities.
It is well-established that judicial review of a congres-
sional action is available if employees of the Congress take steps
to implement that action beyond the purely legislative sphere. As
noted by the defendants in their brief at p. 15, the defendant
Clerk of the House certified the contempt resolution to the United
States Attorney for prosecution under 2 U.S.C. § 194. Moreover,
*
the defendant Sergeant-at-Arms of the House delivered the
contempt citation to the United States Attorney. Each of these
defendants, therefore, was responsible for carrying out the House
resolution that the contempt citation against Mrs. Gorsuch be
certified and delivered to the United States Attorney for prosecu-
tion. In these circumstances, the Supreme Court has held that
suits can be maintained against the congressional employees in
order to review the legality of the underlying legislative order
pursuant to which they were acting.
This principle was recognized by the Court in Powell V.
McCormack, 395 U.S. 486 (1969). There the House of Representa-
tives passed a resolution excluding Rep. Powell from the House.
Pursuant to that resolution, the Clerk of the House threatened to
refuse to perform the duties due a Representative, the Sergeant-
at-Arms refused to pay his salary and the Doorkeeper refused to
admit him to the House Chamber. Powell filed suit against certain
Congressmen as well as these employees challenging the legality of
the House's exclusion order. The defendants moved to dismiss,
*
The Sergeant-at-Arms was mistakenly omitted from the Amended
Complaint. We have, therefore, moved to amend the Complaint to
join him as a party defendant to this action.
- 47 -
arguing that the Speech or Debate Clause protected both the legis-
lators and their employees from suit. The Supreme Court refused
to dismiss the employees and reaffirmed the doctrine that:
although an action against a Congressman
may be barred by the Speech and Debate Clause,
legislative employees who participated in the
unconstitutional activity are responsible for
their acts
That House employees are acting
pursuant to express orders of the House does not
bar judicial review of the constitutionality of the
underlying legislative decision. [395 U.S. at 504].
The Court therefore permitted the suit to proceed against the
House employees in order to review the legality of the exclusion
order adopted by the members of the House.
In reaching this conclusion, the Court specifically reaf-
firmed its decision in Kilbourn V. Thompson, 103 U.S. 168 (1881).
There, the House had passed a resolution ordering the Sergeant-at-
Arms to arrest and imprison a witness who had refused to respond
to a House Committee subpoena. The witness filed a false impris-
onment suit against certain members of the House as well as
against the Sergeant-at-Arms who had actually executed the arrest
warrant, contending that the House resolution was unconstitu-
tional. The Court held that while the members were immune from a
damage action based upon their legislative act, the Sergeant-at-
Arms did not share in that immunity, even though he had merely
implemented the House resolution. Indeed, the Court emphasized
the importance of permitting the case to proceed against the House
employee to ensure that the House's action not escape judicial
review:
- 48 -
Especially is it competent and proper for this
court to consider whether its [the legislature's]
proceedings are in conformity with the Constitution
and laws, because, living under a written consti-
tution, no branch or department of the government
is supreme; and it is the province and duty of the
judicial department to determine in cases regularly
brought before them, whether the powers of any
branch of the government, and even those of the
legislature in the enactment of laws, have been
exercised in conformity to the Constitution; and
if they have not, to treat their acts as null and
void." 103 U.S., at 199.
The instant case is indistinguishable from Powell or
Kilbourn in this regard. Plaintiffs here, as in Powell and
Kilbourn, seek judicial review of a House resolution. Similarly,
as in Powell and Kilbourn, the legislative process has terminated
SO that judicial intervention could not interfere with any ongoing
legislative activity. Moreover, as in Powell and Kilbourn, the
implementation of the resolution here required the participation
of House employees. Without the certification and delivery of the
contempt citation to the United States Attorney, the House resolu-
tion that Mrs. Gorsuch be prosecuted for contempt would have had
no effect. This case, therefore, can proceed against the House
employees who carried out the House resolution, just as the Powell
and Kilbourn actions were permitted against the House employees
who implemented the House resolutions challenged in those cases.
Moreover, contrary to the House's assertions, this conclusion
is perfectly consistent with the Supreme Court's Speech or Debate
analysis in cases such as Gravel V. United States, 408 U.S. 606
(1972). In Gravel, the Court emphasized that Speech or Debate
immunity attaches to either Members or employees if the action
they took was a protected legislative act. Thus, the Court held
that
- 49 -
the Speech or Debate Clause applies
not only to a Member but also his aides
insofar as the conduct of the latter would
be a protected legislative act if performed
by the Member himself. [408 U.S. at 621]
Therefore, to determine whether the House employees here are
immune from suit, it is necessary to decide whether they performed
"protected legislative acts. As noted by the Court in
Gravel, and in United States V. Brewster, 408 U.S. 501 (1972),
members of Congress engage in a wide range of unprotected
activities, including constituent "errands", communicating with
federal agencies regarding their administration of programs, news
releases and speeches outside the Congress. Indeed, the Court
held in United States V. Johnson, 383 U.S. 169 (1966), that the
Speech or Debate Clause did not immunize a Member's attempt to
influence the Department of Justice. In light of the wide
range of congressional activities, the Court in Gravel cautioned
that:
The Gravel analysis suggests that a distinction between
legislators and legislative employees may not be appropriate,
particularly in an action for declaratory relief. But see Powell
V. McCormack, 395 U.S. at 517-18. Under the Gravel approach,
however, plaintiffs would be entitled to seek declaratory relief
against all defendants who participated in conduct outside the
scope of "protected legislative acts, including Members of
Congress.
Had the member sought to influence the Department of Justice
solely through legislative activities such as floor speeches,
committee hearings, or voting on a resolution or bill, Speech or
Debate immunity would have attached. Similarly, here, had the
defendants sought to influence the Executive Branch through
such legislative activities, they would be immune from suit.
However, when Congress took the unprecedented step of certifying
the contempt resolution to the United States Attorney and
purporting to require him to prosecute Mrs. Gorsuch, it went
beyond the legislative arena as did the member in Johnson who
similarly sought to influence the Executive Branch through
extra-legislative means.
- 50 -
Legislative acts are not all-encompassing.
The heart of the Clause is speech or debate in
either House. Insofar as the Clause is construed
to reach other matters, they must be an integral
part of the deliberative and communicative
processes by which Members participate in
committee and House proceedings with respect to
the consideration and passage or rejection of
proposed legislation or with respect to other
matters which the Constitution places within the
jurisdiction of either House. [408 U.S. at 625]
The test has been applied to immunize the issuance of a duly
authorized congressional subpoena, Eastland V. United States
Servicemen's Fund, 421 U.S. 491 (1975), and the preparation of a
Committee report, Doe V. McMillan, 412 U.S. 306 (1973), because
those activities were held to be integral parts of Congress'
deliberative and communicative processes. However, the private
publication or public distribution of materials received or
prepared by a congressional committee have been held to be
unprotected activities. Gravel V. United States, supra; Doe V.
McMillan, supra. Such activities are simply not essential to the
internal processes of the Congress.
Under the Gravel analysis, the certification and delivery of
the contempt citation to the United States Attorney in an attempt
to compel criminal prosecution is not a protected legislative
activity.
Those acts have nothing to do with "speech or
debate" nor are they an integral part of the House's internal
deliberative and communicative processes. Instead, the
The Speaker's letter of January 5, 1983 (Harris Dec., Exhibit
C), which explicitly seeks to compel the United States Attorney to
bring a criminal prosecution against Mrs. Gorsuch, is also not a
protected legislative act. See United States V. Johnson, 383 U.S.
169 (1966).
- 51 -
*
certification and delivery of the contempt citation consti-
tute an effort to enforce the legislative decision, just as the
physical exclusion of Rep. Powell by the House doorkeeper in
Powell and the arrest of the witness in Kilbourn constituted
efforts to enforce the legislative decisions reached in those
**
cases.
As the Court stated in Eastland, 421 U.S. at 508,
the arrest by the Sergeant-at-Arms of a witness who had been held
in contempt was unprotected because it was not "essential to
legislating." For the same reason, the certification and delivery
in the present case are not protected legislative activities.
Therefore, although the Speech or Debate Clause may immunize the
Member defendants for their legislative activities in this case,
that immunity extends only through the vote on the contempt
resolution by the House. Beyond that point, the legislative
process ends and the enforcement process begins; any acts by the
defendants beyond that vote can therefore form the basis for
judicial resolution of the underlying controversy as in Powell and
Kilbourn.
* The House argues that the certifiction of bills and resolu-
tions are protected legislative actions and that the Department of
Justice took this position in a recent case. See Defendants'
Brief at 15, 20. Ordinarly, this proposition is accurate because
the certification is part of the process by which a bill or
resolution becomes law. Here, however, 2 U.S.C. $ 194 provides
that certification is a necessary step in obtaining criminal
prosecution by the United States Attorney, an activity which is
not part of the process by which a bill or resolution becomes
law.
** / Indeed, the statutes pursuant to which the contempt citation
was certified and delivered, 2 U.S.C. $ 192 and 194, were enacted
to provide Congress with an additional means to enforce its con-
tempt resolutions as an alternative to the method employed in
Kilbourn. See Cong. Globe, 34th Cong., 3d Sess. 427 (remarks of
Rep. Davis) (the statute "makes a mere substitution of a judicial
proceeding for the ordinary proceeding by attachment by a parlia-
mentary body"), quoted in Defendants' Brief, at 28-29.
III. Mrs. Gorsuch Properly Withheld
The Documents In Dispute Under A
Claim Of Executive Privilege
The Executive has asserted a privilege to withhold only a
smattering of hard-core, enforcement sensitive documents. That
action was ordered by the President because he and the Attorney
General believed disclosure of the documents could compromise
effective law enforcement, a responsibility given the Executive by
the Constitution. The defendants have done nothing to satisfy
their burden of showing that the privilege was wrongly asserted or
that they had a compelling need for the documents.
A. The Claim of Executive Privilege Is
Rooted In Separation Of Powers Principles
And Should Be Reviewed By This Court
Executive privilege was invoked here in order to preserve the
fundamental principle of separation of powers, "which is at the
heart of our Constitution." Buckley V. Valeo, 424 U.S. 1, 119
(1976) (per curiam). The judiciary has indeed often checked
actions by the other branches which represent
an assumption by one branch of powers that
are central or essential to the operation of a
coordinate branch, provided also that the
assumption disrupts the coordinate branch in
the performance of its duties and is
unnecessary to implement a legitimate policy
of the Government.
Chadha V. Immigration and Naturalization Service, 634 F.2d 408,
425 (9th Cir. 1980). See Buckley V. Valeo, 424 U.S. 1, 118-24
(1976) (per curiam) ; United States V. Nixon, 418 U.S. 683 (1974) ;
Youngstown Sheet & Tube Co. V. Sawyer, 343 U.S. 579 (1952) ;
- 53 -
Myers V. United States, 272 U.S. 52 (1926). Judicial intervention
in these disputes was essential in order to maintain the delicate
balance of powers among the branches created by the constitution.
Congress does have the power to investigate. That power is
broad, but it is not without limitations. Watkins V. United
States, 354 U.S. 178, 187 (1957). As the Supreme Court stated in
Barenblatt V. United States, 360 U.S. 109 at 112:
Lacking the judicial power given to
the Judiciary, it cannot inquire into
matters that are exclusively the concern
of the Judiciary. Neither can it supplant
the Executive in what exclusively belongs
to the Executive. (emphasis added).
When the Congress uses its power to investigate in a manner that
threatens to impair the Executive's ability to fulfill constitu-
tional responsibilities, as here, the courts have stepped in to
resolve the dispute. As the Court of Appeals for this Circuit
stated in Senate Select Committee V. Nixon, 498 F.2d 725, 729
(D.C. Cir. 1974), in which a claim of executive privilege was
similarly invoked in response to a congressional subpoena, "it is
the responsibility of the courts to decide whether and to what
extent executive privilege applies." See also United States V.
Nixon, supra. The Court of Appeals, after a thorough review of
the issues raised, concluded that the materials in question were,
indeed, subject to a claim of executive privilege. The court
further held that the committee had failed to demonstrate that the
materials were "demonstrably critical to the responsible fulfill-
ment of the Committee's functions" so as to overcome the claim of
privilege. 498 F.2d at 731.
- 54 -
This case is like Senate Select Committee. As will be demon-
strated below, the documents are subject to a valid claim of
privilege. Since the committee has failed to demonstrate any
compelling investigative need for them, the investigative inter-
ests of the Legislative Branch must yield to the necessity for the
Executive to preserve its ability faithfully to execute the law.
B. Executive Privilege May Be Invoked For
Sensitive Documents In Open Law
Enforcement Files
Here the Subcommittee's demands threatened damage to a funda-
mental responsibility of the Executive -- the obligation to
enforce the laws. Therefore, in response to the demands of the
congressional subpoena here at issue, Mrs. Gorsuch followed the
instructions of the President in interposing a claim of executive
privilege to protect from disclosure materials that consist of
"sensitive memoranda or notes by EPA attorneys
and investigators reflecting enforcement
strategy, legal analysis, lists of potential
witnesses, settlement considerations and
similar materials the disclosure of which
might adversely affect a pending enforcement
action, overall enforcement policy, or the
rights of individuals."
Perry Dec., Exhibit E at 4. This claim was based on a determina-
tion that dissemination of such documents to the public or to
Congress would impair the Executive's constitutional duty to
ensure that the laws be faithfully executed. See U.S. Const.
,
Art. II, $ 3; United States V. Nixon, 418 U.S. 683 (1974).
Accordingly, the claim of executive privilege has been properly
asserted.
- 55 -
The doctrine of executive privilege defines the constitu-
tional authority of the Executive Branch to protect documents or
information in its possession from public disclosure and from the
compulsory processes of the legislative and judicial branches.
See United States V. Nixon, 418 U.S. 683 (1974). The privilege
protects two different constitutional interests. Executive privi-
lege protects material where disclosure would either significantly
impair the performance of the constitutional responsibilities of
the Executive or where it would interfere with its functioning as
an independent branch of government. Id.
Executive privilege may properly be invoked to protect
several distinct aspects of the Executive's constitutional
responsibilities. It may be invoked, for example, where there is
a danger that disclosure of the material will impair the conduct
of foreign relations or the national security. See e.g., United
States V. Reynolds, 345 U.S. 1 (1953) ; Halkin V. Helms, 598 F.2d 1
(D.C. Cir. 1978). See also United States V. Nixon, 418 U.S. at
706. It may also be invoked to shield confidential deliberative
communications which have been generated within the Executive
Branch from compulsory disclosure, unless there is a strong
showing that access to the documents is critical to the responsi-
ble fulfillment of a constitutional function. See Nixon V.
Administrator of General Services, 433 U.S. 425, 441-55 (1977) ;
United States V. Nixon, 418 U.S. 683, 711-12 (1974) ; Senate Select
Committee V. Nixon, 498 F.2d 725, 730-31 (D.C. Cir. 1974)
- 56 -
(en banc). Similarly, it may be invoked to protect from disclosure
investigative files compiled for law enforcement purposes. See
Ass'n For Women In Science V. Califano, 566 F.2d 339, 343 (D.C.
Cir. 1977); Black V. Sheraton Corp. of America, 564 F.2d 531 (D.C.
Cir. 1977).
The assertion of a claim of executive privilege is based on
the practical need for the confidentiality of communications
within the Executive Branch to carry out its constitutional
responsibilities, as well as the doctrine of separation of powers
that provides that each branch of government is "suprem[e]
...
within its own assigned area of constitutional duties." United
States V. Nixon, 418 U.S. at 705. In United States V. Nixon, the
Court recognized the need for confidentiality within the Executive
Branch to assist the President in the discharge of his constitu-
tional powers and duties, by ensuring discussion that is free-
flowing and frank, unencumbered by fear of disclosure or intrusion
by the public or the other branches of government. It stated that
"[h]uman experience teaches that those who expect public dissem-
ination of their remarks may well temper candor with a concern for
appearances and for their own interests to the detriment of the
decisionmaking process." United States V. Nixon, 418 U.S. at
705. Such "temper[ed] candor" in executive deliberations would
impede the President's performance of his constitutional duty to
exercise the Executive powers granted in Art. II, § 3 of the
Constitution. See Nixon V. Administrator of General Services,
- 57 -
433 U.S. 425 (1977) ; United States V. Nixon, 418 U.S. at
705.*/
Because its invocation is infrequently challenged in court,
there has not been much litigation in the area of executive privi-
lege. However, courts have long recognized the need for the
privilege in the area of civil discovery with respect to "intra-
governmental documents reflecting advisory opinions, recommenda-
tions and deliberations comprising part of a process by which
governmental decisions and policies are formulated." Carl Zeiss
Stiftung V. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C.
1966), aff'd mem. sub nom. V.E.B. Carl Zeiss, Jena V. Clark, 384
F.2d 979, cert denied, 389 U.S. 952 (1967). See Kaiser Aluminum &
Chemical Corp. V. United States, 157 F. Supp. 939 (Ct. Cl. 1958).
In addition, the courts have recognized that a related privi-
lege, commonly known as the law enforcement evidentiary privilege,
protects from disclosure investigative files compiled for law
enforcement purposes. Black V. Sheraton Corp. of America, 564
F.2d 531 (D.C. Cir. 1977). See United States V. A.T.&T., 86
F.R.D. 603, 639-42 (D.D.C. 1979). Courts have long recognized a
strong public interest in minimizing the disclosure of documents
which would tend to reveal law enforcement strategies, investiga-
tive techniques or sources. See e.g., NLRB V. Robbins Tire &
Rubber Co., 437 U.S. 214, 224-25 (1978); Black V. Sheraton Corp.,
The Supreme Court and lower federal courts have made clear
that the presumption of confidentiality accorded executive
communications is intended to protect not only the substance of
sensitive communications but the integrity of the decision-making
process within the Executive Branch as well. See Nixon V.
Administrator of General Services, supra; Senate Select Committee
V. Nixon, supra; Nixon V. Sirica, 487 F.2d 700 (D.C. Cir. 1973)
(en banc).
- 58 -
564 F.2d at 535, 536; Center for National Policy Review on Race
and Urban Issues V. Weinberger, 502 F.2d 370, 374 (D.C. Cir.
1974) ; Aspin V. Department of Defense, 491 F.2d 24 (D.C. Cir.
1973) ; Frankel V. SEC, 460 F.2d 813, 817-18 (2d Cir.), cert.
denied, 409 U.S. 882 (1972) ; Jabara V. Kelly, 62 F.R.D. 424 (E.D.
Mich. 1974) ; Philadelphia Resistance V. Mitchell, 63 F.R.D. 125
(E.D. Pa. 1972). See generally 2 Weinstein's Evidence [509[07]
(1975). This privilege is rooted in the same concerns as the
privilege accorded to intra-governmental documents -- the need to
minimize disclosure of documents the revelation of which would
both impair the functioning of the Executive Branch in its law
enforcement efforts and impair its ability to operate as an
independent branch of government. See Black V. Sheraton Corp. of
America, 564 F.2d at 542.
Effective law enforcement relies heavily on the assurance of
confidentiality within the enforcement process. The need for
confidentiality is even stronger, of course, while enforcement is
being carried out and enforcement policies and strategies are
still being developed. Without that assurance of confidentiality,
efforts of the Executive Branch to enforce the law effectively
would be undercut by disclosure of sensitive investigative techni-
ques, methods or strategies, forewarning of suspects under
investigation, deterrence of witnesses from coming forward,
endangering the safety of confidential informants or prejudicing
the rights of those under investigation. Moreover, disclosure of
investigative files in a particular case could interfere with
ongoing administrative enforcement proceedings and could obviously
- 59 -
prejudice or harm the government's case. See e.g., NLRB V.
Robbins Tire & Rubber Co., 437 U.S. 214, 224-25 (1978); Center for
National Policy V. Weinberger, 502 F.2d 370, 374 (D.C. Cir. 1974) ;
Aspin V. Department of Defense, 491 F.2d 24, 29-30 (D.C. Cir.
1973) Frankel V. SEC, 460 F.2d 813, 817-18 (2d Cir.), cert.
denied, 409 U.S. 882 (1972); ; Kinoy V. Mitchell, 67 F.R.D. 1, 11-12
(S.D. N.Y. 1975). Indeed, the government may shrink from conduct-
ing a thorough investigation if there is a risk that the informa-
tion gathered. may be prematurely disclosed. Perhaps most
importantly, the fear exists that the integrity, impartiality and
fairness of the law enforcement process as a whole would be
damaged if sensitive material were distributed beyond those
persons necessarily involved in the investigation and prosecution
process. See Perry Dec., paras. 17, 18, 24, 32 and 33; Dinkins
Dec., paras. 6-9.
The disclosure of open law enforcement files could also
seriously impair the Executive Branch's functioning as an
Congress itself has recognized the vital importance for such a
privilege in the Freedom of Information Act, which greatly
expanded information that government agencies must make available
to the public. That Act specifically contains an exemption for
certain types of investigatory records compiled for law enforce-
ment purposes. 5 U.S.C. $552(b) (7). As the Second Circuit con-
cluded in analyzing the purposes behind the $552(b) (7) exemption:
[the Senate and House Reports] indicate
that Congress had a two-fold purpose in
enacting the exemption for investigatory
files: to prevent the premature disclosure
of the results of an investigation so that
the Government can present its strongest
case in court, and to keep confidential
the procedures by which the agency conducted
its investigation and by which it has obtained
information. Both these forms of confiden-
tiality are necessary for effective law
enforcement. Frankel V. SEC, 460 F.2d 813
817 (2d Cir.), cert. denied, 409 U.S.
889 (1972).
50 1 1
independent branch of government. Were the documents at issue
here disclosed to congressional subcommittees, members of Congress
would become partners in the enforcement process, possessing the
information necessary to participate in or interfere with ongoing
enforcement actions. The Executive Branch would lose control of
the documents and thus would be unable to ensure that the
strengths and weaknesses of the government's case not be revealed
to the targets of the case under development.
As stated by the Attorney General, in explaining the bases
for the invocation of the privilege in the instant case, there is
ample historical precedent for the assertion of privilege to
preclude disclosure to the Congress of sensitive memoranda in
files of ongoing law enforcement cases.
The policy which I reiterate here was first
expressed by President Washington and has
been reaffirmed by or on behalf of most of
our Presidents including Presidents Jefferson,
Jackson, Lincoln, Theodore Roosevelt,
Franklin Roosevelt, and Eisenhower. I am
aware of no President who has departed from
this policy regarding the general confiden-
tiality of law enforcement files.
Perry Dec., Exhibit E at 5.
Executive privilege has been invoked throughout the history
of the United States by virtually all of our Presidents in
response to Congressional demands for information. See The
Committee Report, p. 90 (Memorandum for the Attorney General,
History of Executive Privilege vis-a-vis Congress, December 14,
1982). Many of these claims were made to prevent the disclosure
of investigatory files. See id., p. 94-95 (President Monroe) ;
p. 96-97 (President Jackson); p. 99-100 (President Tyler) ; p. 103
- 61 -
President Buchanan); p. 103-04 (President Lincoln) ; p. 104 (Presi-
dent Johnson) ; p. 105 (President Cleveland) ; p. 106-07 (President
Theodore Roosevelt) ; p. 107 (President Coolidge) ; p. 107-08
(President Franklin Roosevelt) ; P. 109-110 (President Truman) .
See also Cox, Executive Privilege, 122 U. Pa. L. Rev. 1383,
1400-02 and nn. 61-67.
Thus, it has been the general policy of the Executive Branch
throughout this Nation's history to withhold from Congress sensi-
tive documents from open law enforcement files except in the most
extraordinary circumstances. For example, President Tyler invoked
executive privilege against a request by the House of Representa-
tives to the Secretary of War to produce investigatory reports
submitted to the Secretary by Lieutenant Colonel Hitchcock
concerning his investigation into frauds perpetrated against the
Cherokee Indians. See The Committee Report, p. 99-100.
Similarly, President Truman invoked the privilege and directed
officials not to disclose files bearing on the loyalty of certain
State Department employees after the Senate subpoenaed those
files. See id. at 109-110. And President Franklin Roosevelt
directed Attorney General Jackson to invoke the privilege con-
cerning a House request to view certain FBI records. See id. at
107-08. As Attorney General Robert Jackson stated to Congress
over forty years ago:
)
It is the position of [the] Department
[of Justice], restated now with the approval
of and at the direction of the President, that
- 62 -
all investigative reports are confidential
documents of the executive department of the
Government, to aid in the duty laid upon the
President by the Constitution to 'take care
that that laws be faithfully executed,' and
that congressional or public access to them
would not be in the public interest.
Disclosure of the reports could not do
otherwise than seriously prejudice law
enforcement. Counsel for a defendant or
prospective defendant, could have no greater
help than to know how much or how little
information the Government has, and what
witnesses or sources of information it can
rely upon. This is exactly what these
reports are intended to contain.
40 Op. A.G. 45, 46 (1941).
Attorney General Smith also relied upon the reasoning of
former Assistant Attorney General Thomas F. Kauper, who stated:
The Executive cannot effectively investigate
if Congress is, in a sense, a partner in the
investigation. If a congressional committee
is fully apprised of all details of an
investigation as the investigation proceeds,
there is a substantial danger that congres-
sional pressures will influence the course of
the investigation.
Exhibit F, p. 3.
The Attorney General found that promises of confidentiality
by a congressional committee or subcommittee do not remove the
basis for the policy of nondisclosure of law enforcement files.
He agreed with the position stated by Attorney General Jackson in
writing to Congressman Carl Vinson, then Chairman of the House
Committee on Naval Affairs, in 1941:
- 63 -
I am not unmindful of your conditional
suggestion that your counsel will keep this
information 'inviolate until such time as the
committee determines its disposition.' I have
no doubt that this pledge would be kept and
that you would weigh every consideration
before making any matter public. Unfortu-
nately, however, a policy cannot be made
anew because of personal confidence of the
Attorney General in the integrity and good
faith of a particular committee chairman.
We cannot be put in the position of
discriminating between committees or of
attempting to judge between them, and their
individual members, each of whom has access
to information once placed in the hands of
the committee.
As the Attorney General noted, Assistant Attorney General
Kauper articulated additional considerations in explaining why
congressional assurances of confidentiality could not overcome
concern over the integrity of law enforcement files:
[S]uch assurances have not led to a relaxation
of the general principle that open investiga-
tive files will not be supplied to Congress,
for several reasons. First, to the extent
the principle rests on the prevention of
direct congressional influence upon
investigations in progress, dissemination
to the Congress, not by it, is the critical
factor. Second, there is the always present
concern, often factually justified, with
'leaks.' Third, members of Congress may
comment or publicly draw conclusions from
such documents, without in fact disclosing
their contents.
- 64 -
Perry Dec., Exhibit F, p. 6 There are, therefore, a
number of compelling reasons why documents such as those at issue
here must remain privileged and why "[a]t bottom, the President
has the responsibility vested in him by the Constitution to
protect the confidentiality of certain documents which he cannot
delegate to the Legislative Branch." Id. p. 7.
C. The Documents At Issue In This
Case Are Properly Subject To
A Claim Of Executive Privilege
The administration of the Superfund Act involves a continuous
process of investigation and law enforcement efforts. The process
may ultimately result either in an administrative action, criminal
Guarantees of confidentiality by the Levitas Subcommittee can
not overcome the concern over the integrity of law enforcement
files in this instance either. Rule XI, cl.2, $ 706c of the Rules
of the House of Representatives provides that "[a]ll committee
hearings, records, data, charts, and files
shall be the
property of the House and all members of the House shall have
access thereto (emphasis added). Thus, Subcommittee
access to the documents is equivalent to access by all of the
members of the House of Representatives and, accordingly, to the
general public. Nor will an offer to receive the privileged
documents in "executive session" pursuant to Rule XI, cl.2, § 712
of the Rules of the House of Representatives alleviate that
concern. The only protection given the documents by that
provision is that they shall not be made public without the
consent of the Subcommittee. Since such consent could be given
any time in the future, this assurance fails to provide the
Executive the protection and control to which it is
constitutionally entitled.
Furthermore, there is always the possibility that information
will be leaked to the public by House members or their staffs.
Although the same danger exists in the Executive Branch, the
Executive can assert control over Executive Branch employees
through a variety of potential sanctions, including loss of
employment. With disclosure of documents to Congress, the Execu-
tive Branch loses that power to ensure the confidentiality of its
records. Ultimately, it is the Executive's responsibility to
enforce the law and to maintain the confidentiality of information
that is necessary for this purpose.
- 65 -
prosecution or civil litigation. As such, the enforcement func-
tions of EPA under the Superfund are similar to those functions
carried out by the FBI or the Department of Justice in a criminal
prosecution. Accordingly, the same concerns for protecting the
law enforcement investigatory files of those agencies are equally
applicable with respect to the enforcement of the Superfund
program. Cf. Center for National Policy Review V. Weinberger, 502
F.2d 370, 373 (D.C. Cir. 1974).
The documents which form the focus of this dispute are all
part of open law enforcement case files. A number of cases are in
early stages of investigation, where public disclosure could be
particularly destructive. Many of the documents contain EPA's
proposed settlement strategies, including the bottom-line figure
it would accept from a particular responsible party. The memo-
randa also describe, in detail, anticipated defenses, the elements
of proof required in a given case, the legal issues involved and
possible precedential impact. Also included are lists of poten-
tial witnesses and descriptions of available evidence. Perry
Dec., para. 16.
Threatened disclosure of these documents raises serious
fears. The documents in question all stem from ongoing
enforcement actions which EPA and/or the Department of Justice are
developing for litigation or which are actually being litigated in
the courts. Thus, disclosure of these documents would reveal the
strategy of the investigation and forewarn the suspects under
investigation. It would also undercut the investigation of the
hazardous waste sites by premature disclosure of the facts of the
government's case. Such information would be of obvious benefit
- 66 -
to the targets of the investigation and destroy the adversarial
element crucial to the law enforcement process. For example, EPA
would be at an enormous disadvantage in attempting to negotiate an
environmentally appropriate settlement agreement with a party who
knew EPA's bottom-line settlement position, its negotiation
strategy, and its perception of the strengths and weaknesses in
the government's case. In addition, the withheld documents
identify potential targets for enforcement actions; the disclosure
of those names could have great impact upon those persons
identified, by harming the reputation of possibly innocent
persons.
Moreover, the information sought is not factual data, which
has already been made available to the Subcommittee. Rather, the
documents withheld consist of legal and strategic analyses of
individual cases, lists of potential witnesses, settlement
considerations and similar materials. These are the kind of work
product documents that would be immune from production under Fed.
R. Civ. Proc. 26 (b) (3).
Thus, in this instance, the need for the privilege is very
strong. As demonstrated below, Congress cannot overcome the
presumption of the privilege in this instance because it cannot
establish a compelling and specific need for the documents.
D.
Congress Has Not Shown A Specific
And Compelling Need For Disclosure
Of The Documents That Overcomes
The Presumption Of Executive
Privilege
Defendants seem to assert an absolute right to any documents
held by the Executive; at least, they insist that the House should
be the sole arbiter of what documents the Executive may withhold.
67 1 1
As discussed above, that simply is not the law. Instead, while
executive privilege is not absolute, it may be overcome only by a
specific showing that Congress has a compelling need for the docu-
ments in question. See pp. 54-55, supra. In some cases, there
may be a need for delicate balancing of competing interests.
Here, however, the decision is an easy one because the Subcom-
mittee has made no showing whatsoever of a specific need for the
documents in question.
The power of Congress to conduct investigations is inherent
in the legislative process. When this "power of inquiry" is
directed at the Executive Branch, however, it is bounded by
principles imposed by the separation of powers doctrine. See
Senate Select Committee V. Nixon, supra. Thus, the power of
Congress to investigate is subject to claims by the Executive that
the release of certain information would impair the President's
obligation to discharge the responsibilities assigned to him by
the constitution. See p. 54, supra. When such a claim is inter-
posed, it cannot be overcome absent a showing of some compelling
need for the information sought. See Senate Select Committee V.
Nixon, supra, 498 F.2d at 730; United States V. A.T.&T., 567 F.2d
121 (D.C. Cir. 1977). Indeed, this Circuit has held that the
general oversight and fact-finding functions of a particular
congressional committee were insufficient to override the inter-
ests of the Executive Branch in protecting privileged information
from disclosure. See Senate Select Committee V. Nixon, supra, 498
F.2d at 732. The Court in Senate Select Committee contrasted the
general congressional interest in oversight and fact-finding with
the specific and compelling need for disclosure in the face of a
- 68 -
grand jury subpoena, such as that involved in Nixon V. Sirica, 487
F.2d 700 (D.C. Cir. 1973).
The subcommittee here has not and indeed cannot show any
need -- much less any compelling need -- for the withheld docu-
ments sufficient to overcome the valid claim of privilege invoked
by the Executive Branch. The Subcommittee issued the subpoena in
question in order "to review the integrity and effectiveness of
EPA's enforcement program and to evaluate the adequacy of existing
law." The Committee Report, p. 61. (Legal Memorandum of the
General Counsel to the Clerk of the House of Representatives to
Chairman Levitas Regarding Executive Privilege, December 8, 1982).
The information requested is very broad in scope and the reasons
for the request are very general. It is difficult to understand
why the withheld documents, a small number of sensitive materials
from open law enforcement files, are necessary to enable the
Subcommittee to conduct its investigation. What is critical,
however, is that the House cannot possibly make a showing that
they are necessary because the House has not reviewed the docu-
ments actually made available to it. In fact, the Subcommittee
actually refused to inspect the documents produced. Perry Dec.
,
para. 25. Since the Subcommittee refuses to inspect the tremend-
ous bulk of material that has been offered, it cannot possibly
show any compelling need for the miniscule number of documents
*
that have been withheld.
*
Moreover, the Subcommittee has not shown that whatever
information it may have wanted from EPA could not have been
obtained by some means other than the production of sensitive law
enforcement documents from open Superfund Act enforcement files.
- 69 -
Moreover, the access that has been denied to the Subcommittee
is only temporary. EPA has offered to turn over memoranda in the
enforcement files as they lose their enforcement sensitivity. The
Subcommittee has failed to demonstrate why its need to view these
documents is critical at this point and cannot wait until the
sensitive nature of the documents has abated.
Furthermore, the documents that have been made available to
the Subcommittee may well fulfill its legislative needs. They
consist of notes and internal memoranda from both open and closed
cases involving enforcement of the Superfund. The documents
include data on the amounts, nature, and origin of wastes present
at hazardous waste sites; correspondence between EPA and the
generators of the hazardous waste; records of interraction with
state and local government officials; correspondence with
responsible parties, contractors, state officials and representa-
tives of other federal agencies; memoranda discussing the alloca-
tion of monies to particular sites by EPA; cooperative agreements
arranged with the states involved; and memoranda reflecting the
process of having the Superfund Office begin working on a site
while initiating settlement negotiations with the contractor.
Perry Dec., para. 16. A review of these materials would certainly
enable the Subcommittee to conduct a detailed and comprehensive
investigation of the adequacy of EPA's Superfund enforcement
efforts. They reflect the various steps that have been taken
concerning numerous hazardous waste sites. An evaluation of the
effectiveness of the law as it has been applied and implemented by
EPA clearly may be culled from these documents.
- 70 -
Accordingly, defendants have not and cannot meet their burden
of demonstrating a specific, articulable need for the documents in
question that would overcome the presumption of the asserted
privilege. They have not even attempted to demonstrate such a
specific need nor attempted to accommodate the interests of
confidentiality required by the Executive in its law enforcement
efforts. Instead, they continue to rely on the Subcommittee's
generalized request for production of documents, failing to
recognize that such a request is insufficient in and of itself to
overcome the constitutionally protected interests of another
branch of the government. Since defendants cannot establish any
compelling need for the documents in question sufficient to over-
come the claim of privilege, the Court should enter a judgment
declaring that the Administrator acted lawfully in refusing to
disclose them to the Subcommittee.
CONCLUSION
For all of the foregoing reasons, the plaintiffs' motion for
summary judgment should be granted.
Respectfully submitted,
J.
PAUL McGRATH
Assistant Attorney General
STANLEY S. HARRIS
United States Attorney
Richard K. Willard
RICHARD K. WILLARD
Deputy Assistant Attorney General
- 71 -
Luis K. Wise
LEWIS K. WISE
ANDREW Andrew M. WOLFE m WBI/E
Betsy 1. Shee
BETSY J. GREY
Attorneys, Department of Justice
Civil Division - Room 3531
10th & Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Tel: (202) 633-4020
Attorneys for Plaintiffs United
States of America and Anne M.
Gorsuch
- 72 -
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
UNITED STATES OF AMERICA
)
)
Plaintiff,
)
)
Civil Action
V.
)
No. IP 80-457-C
)
SEYMOUR RECYCLING CORP. ,
)
et al.,
)
)
Defendants.
)
MEMORANDUM
This matter comes before the Court for consideration of a
proposed Consent Decree which the United States has lodged with
the Court. The proposed Consent Decree provides for a surface
cleanup of the approximately 60,000 barrels of toxic chemicals,
bulk storage, and contaminated soil at the Seymour Recycling
Site in Seymour, Indiana.
The United States filed the original complaint in this
action on May 19, 1980, alleging violations of Section 7003 of
the Resource Conservation and Recovery Act (RCRA), 42 U.S.C.
$ 6973 and Section 311 of the Clean Water Act (CWA), 33 U.S.C.
$ 1321 against various parties including those who owned and
operated the Seymour Recycling Site. Named defendants answered
the complaint, and discovery proceeded.
ATTACHMENT A
PAGE
1
OF
19
On October 26, 1982, the United States filed with this
Court an amended complaint adding additional allegations as to
the original defendants under the Comprehensive Environmental
Response, Compensation, and Liability Act (known as "CERCLA" or
"Superfund"), 42 U.S.C. $ 9606 and $ 9607, enacted after the
filing of the original complaint. In addition, the United
States named in the amended complaint 24 new defendants, who
are alleged to have "generated and caused to be transported
solid and hazardous wastes and hazardous substances to the
Seymour Site for handling, storage, treatment, or disposal."
Motions to intervene were filed by the State of Indiana and the
County of Jackson on October 26, 1982. On the same day the
United States, the State of Indiana, the County of Jackson,
Indiana, the City of Seymour, Indiana, the Board of Aviation
Commissioners of Seymour, Indiana, and the 24 companies who were
the new defendants added by the amended complaint filed a
proposed Consent Decree with the Court.
This Consent Decree provides a mechanism by which the
surface cleanup of the Seymour Recycling Site may promptly
occur. The Decree provides that each of the 24 companies
shall, within 15 days after the entry of the Decree, pay to the
Seymour Site Trust Fund, established at a bank in Indianapolis,
the sum for that company which is shown in Exhibit A to the
ATTACHMENT A
PAGE 2 OF 19
-2-
Decree. 1 The Trustees of the Fund shall use the money in the
Trust Fund to pay Chemical Waste Management, a firm specializ-
ing in hazardous waste removal, to perform the surface cleanup
at the Seymour Site. The precise scope of work to be done by
Chemical Waste Management is set forth in detail in Exhibit B
to the Consent Decree. The Decree also provides that Chemical
Waste Management shall be responsible for the completion of the
work regardless of its ultimate actual cost and that Chemical
Waste Management shall purchase a performance bond in the
amount of $15,000,000, which bond shall further assure comple-
tion of the work. The Decree specifies the obligations of
Chemical Waste Management to purchase and to maintain in force
insurance policies to protect the United States, the State and
the public. It is contemplated that this project shall take
¹The 24 companies and the amount which each shall pay is
as follows: International Business Machines Corporation --
$2,241,001; General Motors Corporation -- $1,032,961; E.I. du
Pont de Nemours & Company, Inc. -- $682,805; General Electric
Company -- $665,297; Western Electric Company, Inc. --
$385,172; United Technologies Corporation -- $350,156; Atlantic
Richfield Company on behalf of The Anaconda Company, Anaconda
Wire & Cable Company, Anaconda Aluminum Company, Anaconda
Industries, and Anaconda Magnet Wire -- $245,109; Borg-Warner
Chemicals, Inc. -- $245,109; RCA Corporation -- $175,078; Bemis
Company Inc. -- $175,078; Ford Motor Company -- $175,078;
Whirlpool Corporation -- $140,062; McDonnell Douglas Corpora-
tion -- $105,047; Dow Corning Corporation -- $105,047; Pennwalt
Corporation -- $100,000; Owens-Illinois, Inc. -- $100,000; The
Procter & Gamble Company -- $100,000; General American Trans-
portation Corporation -- $100,000; American Can Company --
$100,000; Olin Corporation -- $100,000; AM General Corporation
-- $100,000; Cummins Engine Company Inc. -- $100,000; NCR,
Corp. -- $100,000; Waste Resources of Tennessee, Inc. (an
affiliate of Chemical Waste Management, Inc.) -- $100,000.
ATTACHMENT A
PAGE 3 OF 19
-3-
approximately one year to complete. The Decree provides for
continuing observation and monitoring of the progress of the
work by the United States and the State as well as their
approval of the satisfactory completion of the work.
The Decree contains a provision requiring the preservation
of documents relating to their business transactions with
Seymour Recycling Inc. by the 24 companies. It contains a
provision by which the United States, the State and the local
governments covenant not to sue, execute judgment or take any
civil judicial or administrative action against the 24 com-
panies.
At the time of lodging, the Court set a hearing on the
Consent Decree for November 10, 1982. On October 29, 1982,
pursuant to its regulations published in 28 CFR 50.7, the
United States Department of Justice published notice in the
Federal Register, 47 Fed. Reg. 49107, of the lodging of the
Consent Decree and invited public comment on it. The public
comment period which is normally thirty (30) days was shortened
to ten (10) days, pursuant to these regulations, because in the
judgment of the Department of Justice there was a need to begin
the surface cleanup expeditiously to abate a serious public
health hazard because the advent of winter in the Seymour area
could adversely affect the ability of the contractor to begin
work at the Site.
In response to the Federal Register notice, comments were
received from sixteen corporations. No comments were received
ATTACHMENT A
-4-
PAGE
4
OF
19
from any individual citizens. On November 10, the United
States filed with the Court copies of comments which it had
received as well as its Response to those comments.
At the November 10 hearing, the United States explained the
background to the Decree, and all interested persons, including
those who were objecting to the entry of the Decree and were
not a party in the action, were provided with an opportunity to
participate in the hearing and to present their various posi-
tions to the Court. At this hearing, representatives of
several objecting companies made statements to the Court. At
the conclusion of the hearing the Court indicated, in response
to objections that the comment period was too short, that the
period for public comment would be extended to November 26,
1982, and that a further hearing would be scheduled by the
Court for November 30. Several additional comments were
received during this period. These were filed with the Court
along with the Response of the United States to the Comments.
At the hearing on November 30, the Court once again per-
mitted all interested persons, including those who were not
parties in the action, to participate and to present any
objections which they might have to the Decree. Again, several
objectors made statements to the Court. There were no requests
made for formal intervention, notwithstanding the government's
statement that it would not oppose such intervention. Those
participating in the hearing on November 30 included, in
addition to the United States, representatives of the City of
ATTACHMENT A
-5-
PAGE
IS
19
Seymour and the Seymour Aviation Board, the State of Indiana,
the Seymour Chamber of Commerce, the League of Women Voters of
Seymour, representatives from companies within the group of 24,
and representatives of companies opposing the decree. The
United States presented sworn testimony from an official of
Chemical Waste Management, from an official of the Environ-
mental Protection Agency of the United States Government, and
from two officials from the State of Indiana. An opportunity
was provided for cross-examination of these witnesses. Final-
ly, in addition to the materials submitted by the Department of
Justice and the information presented at the hearings on
November 10 and November 30, a number of comments about the
Consent Decree were submitted directly to the Court. The
United States filed its Supplemental Response to Comments as it
is required to do so by its regulations. See 28 C.F.R. 50.7.
After consideration of the comments, the United States con-
tinues to advocate the entry of the proposed Decree and gives
its consent to the entry of the Decree.
The Court has concluded, based upon a careful review and
consideration of all the information presented to it, that the
Court should approve the Consent Decree. The surface cleanup
authorized by this Decree is a very valuable and important part
of the overall cleanup of the Seymour Site, which is in the
public interest and particularly in the interest of those
citizens affected by the Site. The Court is persuaded that
time is of the essence in commencing this cleanup before the
ATTACHMENT A
-6-
PAGE
6
OF
19
onset of winter. Accordingly, this cleanup should proceed as
promptly as possible without any further delay.
In deciding whether to approve a proposed decree, a court
must inquire whether the decree is consistent both with the
Constitution and with the mandate of Congress. See United
States V. Kitchikan Pulp Co., 430 F. Supp. 83, 86 (D. Alaska
1977) i United States V. Hooker Chemicals and Plastics Corp.,
540 F. Supp. 1067, 1072 (W.D.N.Y. 1982). Second, the court
"must assure itself that the terms of the dècree are fair and
adequate." See United States V. Hooker Chemicals and Plastics
Corp., 540 F. Supp. at 1072. Finally, the court must inquire
whether the settlement is a reasonable one. See In re Cor-
rugated Container Antitrust Litigation, 659 F.2d 1322, 1325
(5th Cir. 1981), cert. denied, 102 S.Ct. 2283 (1982), cert.
denied, 102 S.Ct. 2308 (1982) The underlying purpose of the
court in making these inquiries is to determine whether the
decree adequately protects the public interest. United States
V. Ketchikan Pulp Co., supra, 430 F. Supp. at 86. The court
"must eschew any rubber stamp approval in favor of an inde-
pendent evaluation," United States V. Hooker Chemicals and
Plastics Corp., supra, 540 F. Supp. at 1072, but because of the
clear public policy favoring settiements the court must not
substitute its judgment for that of the parties. See Airline
Stewards V. American Airlines, 573 F.2d 960, 963 (7th Cir.
cert. denied, 439 U.S. 876 (1978) .
ATTACHMENT A
PAGE 7 OF 19
-7-
(1) Legality. With regard to the factors of legality and
constitutionality, no objection has been raised to the entry of
the Decree. Those statutes under which the amended complaint
has been filed empower the United States to bring enforcement
actions. See 42 U.S.C. $ 9606, 42 U.S.C. S 6928, 42 U.S.C.
$ 1321(e). Furthermore, the authority of the United States and
the Attorney General to compromise during litigation is well
established. See United States V. Hooker Chemicals and
Plastics Corp., supra, United States V. Kitchikan Pulp Co.,
supra. Here the Consent Decree is not violative of any law;
indeed, it furthers compliance with the statutes under which
the action was brought, most particularly with Superfund. In
addition, all of the parties to the Decree have consented to
the jurisdiction of the Court for the purposes of this Decree.
(2) Fairness. With respect to the rights and obligations
of the parties consenting to the Decree, there is no objection
as to fairness. All of these parties have urged its entry.
This Court has, however, looked beyond the parties consenting
thereto and considered the arguments raised by non-parties,
both in comments filed with the Department of Justice and in
arguments presented to this Court that the entry of the Decree
is unfair to them. However, no objecting party requested an
opportunity to intervene in this action to offer any evidence
of alleged unfairness nor asked to cross-examine any witness.
No citizen of Seymour has objected to the entry of the
Decree. However, the unfairness issue has been raised by
ATTACHMENT A
-8-
PAGE
OF
19
companies who also generated and/or caused to be transported
hazardous waste to the Seymour Site, but who are not included
within the group of 24 companies who are a party to the Consent
Decree. These objecting companies argued to this Court that
the 24 companies who are parties to the Consent Decree and who
shipped approximately 50% of the waste to the Site will be
paying $7.7 million for the surface cleanup, while the remain-
ing more than 300 companies who shipped the other 50% of the
waste to the Site are being asked to pay in separate settlement
negotiations with the United States, which are unrelated to
this Consent Decree, the sum of $15 million for ground water
cleanup at the Site. The Court has considered carefully and in
detail the arguments being advanced by these objectors. It has
decided, however, to reject these arguments on the basis of the
evidence presented to the Court and arguments by counsel for
the United States and for one of the 24 companies.
These facts show that the United States, mindful of its
responsibility to clean up the Seymour Site in an expeditious
manner in the public interest, decided to split the task into
two separate parts, each of which the United States estimates
comprises approximately one-half of the work required to
achieve a total cleanup of the Site. The first of these parts
is the cleanup of the surface at the Site. The evidence
presented demonstrated that this surface cleanup must neces-
sarily proceed before any subsurface or ground water cleanup
because only when the barrels have been removed from the Site
ATTACHMENT A
PAGE
9
-9-
OF
19
will it be possible to clean-up the subsurface. Moreover, the
evidence showed that the continued presence of leaking barrels
of waste on the surface will exacerbate any groundwater con-
tamination.
The group of 24 companies came to the United States with a
proposal by which they would arrange with a contractor to
perform the surface cleanup in accordance with specifications
agreed to by the companies, the United States and the State,
regardless of the cost of that work and regardless of cost
overruns. Specifically, the Consent Decree provides a $7.7
million cash fund plus a $15 million completion bond for a
total cash fund of $22.5 million to pay for completion of the
work described in Exhibit B to the Consent Decree. In addition
the United States may look to the contractor's assets to
require completion of the work, and the contractor is obligated
by the terms of the Decree to complete the surface cleanup set
forth in Exhibit B to the Decree regardless of its ultimate
cost.
At the same time, the United States has set in motion,
through negotiation, a procedure by which each of those com-
panies who sent waste to the Site, but are not parties to the
Consent Decree may pay at fixed suria of money, based upon the
volume of material which they sent to the Site, and thereby
obtain a: covenant not to sue by the United States. This is a
"cash out" proposal which does not require these parties to
arrange for the performance of any work. While in total the
ATTACHMENT A
-10-
PAGE
OF
sum being asked from those who are not a party to the Consent
Decree is greater than the sum being paid by the 24 who are
parties to the Decree, this does not render the government's
approach unfair to any parties. Those who are parties to the
Consent Decree took upon themselves the obligation to hire the
contractor and to develop a work proposal by which the surface
cleanup is to be completed without active management (but with
monitoring) by the United States and without respect to cost.
Those companies who are not parties to the Decree have a number
of choices. They may accept the government's offer for a cash
settlement in return for a covenant not to sue; they may try to
form a group of their own to deal with the ground water cleanup
in a manner comparable to that dealt with by the 24 companies
with respect to the surface; or they may choose to litigate
with the United States in which case they may end up with a
smaller payment on a proportional basis than those who are in
the group of 24.
One of the factors that the Court found persuasive on this
issue of unfairness is that by the time of the November 30
hearing approximately 140 companies of those not part of the
group of 24 decided to accept the government's "cash out"
offer. Their total sum of payment will be in excess of $3
million. To the Court, the large number of acceptances of the
government's "cash out" offer indicates that this offer was not
unfair and that the government was dealing fairly with those
who were not parties to the Consent Decree.
ATTACHMENT A
-11-
PAGE
11
OF
19
There is a public interest in encouraging parties to come
forward first in an effort to settle enforcement cases. This
is consistent with the general policy favoring the compromise
of claims.
Finally, with respect to the fairness issue, no evidence,
such as sworn testimony (as opposed to written statements or
arguments of counsel) was ever presented to the Court on this
issue by the objectors. Based upon the record before the Court
as a whole, the Court finds that the United States has not
dealt unfairly with those companies who are not parties to the
Consent Decree.
(3) Reasonableness.
In considering the reasonableness of the consent decree,
the Court has considered five factors: 1) the nature and extent
of the potential hazards at the site; 2) the availability and
likelihood of alternatives to the Consent Decree which would
result in cleanup of the surface of the site; 3) the adequacy
of the technical proposal of the work which will be undertaken;
4) the extent to which the Consent Decree furthers the goals of
the statutes which form the basis for this litigation; 5) the
extent to which the Court's approval of the Consent Decree is
in the public interest.
At the hearing on the Consent Decree, the United States
presented the testimony of Beverly Kush, employed as on-scene
ATTACHMENT A
-12-
BACE
19
19
coordinator for the Seymour site by the United States Environ-
mental Protection Agency, James Hunt, Division of Land Pollu-
tion Control of the Board of Health of the State of Indiana,
David Lamb, Director of the Division of Land Pollution Control
of the Board of Health of the State of Indiana and Raymond W.
Bock, Director. of Sales and project supervisor for Chemical
Waste Management, Inc. which will perform the actual cleanup
work at the Seymour site. No other evidence was presented by
any other party or participant in the hearing. No one chose to
cross-examine the government's witnesses.
The unrebutted testimony of Kush, Hunt and Bock established
that there are approximately 60,000 barrels of hazardous
chemicals, numerous bulk storage tanks and laboratory chemicals
present at the Seymour site. Although.fenced, the site is
relatively unsecure and is susceptible of vandalism or easy
entry. The site is located within one-half mile of a resi-
dential area which depends on wells for drinking water. The
runoff of rainwater from the site flows into a drainage ditch
which leads off the site and ultimately connects with the East
Fork of the White River. Beverly Kush testified that the flow
of underground water in the aquifer beneath the site is away
from the site towards the residential drinking water wells and
the White River.
Through the testimony of Hunt, Bock and Kush the government
established that the drums on the site were in an extremely
deteriorated condition. The witnesses estimated that between
ATTACHMENT A
-13-
PAGE 13 OF 19
35-75% of all drums on site were corroded and rusting and were
leaking materials into the ground. Government's exhibits 1-27
(a video-tape and twenty-six slide photographs of the site)
graphically depicted the dilapidated condition of the barrels
on the site. Through the testimony of Hunt and Bock the
government showed that the conditions of the barrels had
significantly deteriorated during each of the past two years.
Kush and Hunt testified that, in their opinions, the site
presented an immediate, substantial endangerment to public
health and the environment and that fire, explosion and ground
water contamination were possible hazards which the conditions
at the site could cause.
In the opinion of Kush, Hunt and Bock it is essential that
the surface cleanup of the site. begin as expeditiously as
possible. Bock testified that delaying the beginning of the
project until the on-set of winter would make timely completion
substantially more difficult if not impossible. He further
testified that if frozen ground conditions occurred before the
initial site preparation (such as road grading and construction
of barrel crushing facilities) was completed, the cleanup
activities would in all likelihood not be able to begin until
Spring of 1983. Hunt, Kush and Bock all testified that many of
the barrels might not withstand another winter at the site and
that the condition of the barrels was continuing to deteriorate
and would do so if allowed to remain on site.
ATTACHMENT A
14 OF 19
-14-
PAGE
The Court is persuaded that clean-up of the surface of the
site must start as soon as possible to protect against the
potential hazards testified to by Kush, Hunt and Bock. The
court is very concerned that delay in clean-up will exacerbate
the potential for groundwater contamination from the leakage
and spillage of chemicals and other substances onto the surface
of the site. The government's evidence showed that chemicals
and substances which are spilled on the ground at the site may
and are getting into groundwater under the site. The Court
believes that a prompt cleanup of the surface coupled with
analysis of the potential groundwater contamination is es-
sential to the protection of public health and the environ-
ment. Kush and Hunt testified that both the federal and state
governments place high priority on the determination of the
existence and scope of groundwater contamination and the
undertaking of the appropriate remedy for it. Both testified
that completion of groundwater studies and implementation of a
groundwater remedy cannot take place until the surface cleanup
is completed. Accordingly, the Court finds the hazardous
conditions at the site require an expeditious cleanup of the
surface of the Seymour site.
Through the testimony of David Lamb from the Board of
Health of the State of Indiana the government established that
the State of Indiana lacks any fund with which to match federal
expenditures at the site which could come from the Hazardous
Response Trust Fund (of "Superfund"). Matching funds are
ATTACHMENT A
PAGE
15
OF
19
-15-
required under Section 104(c) (3) of the Statute, 42 U.S.C.
6904 (c) (3) Mr. Lamb testified that the earliest time the
State could realistically expect to provide as much as $1
million in matching funds would be the summer or fall of 1983.
Matching funds in the amount of $3.5 million would, in Mr.
Lamb's opinion, be available no sooner than the summer of
1984. Ms. Kush from EPA testified that no Superfund monies
were available to undertake the surface clean-up. Thus, it
appears to the Court that the expenditure of funds under
authority of Superfund is not a viable alternative to the
Consent Decree as a method of insuring expeditious cleanup of
the surface of the site.
The Court judicially notices, and it is the unrebutted
testimony of Kush and Hunt, that prior to the clean-up plan
embodied in the Consent Decree, no plan insuring full cleanup
of the surface had been forthcoming from any party to the
litigation or any other persons, other than a temporary,
emergency action by EPA. No objecting party could assure the
Court that the surface cleanup could promptly be accomplished
through any other mechanism than the Consent Decree. Govern-
ment counsel represented to the Court that previous negotia-
tions for cleanup had proved unfraitful. The oral and written
representations of counsel for both objecting parties and
counsel for one of the defendants which are parties to the
decree confirm the past failure of negotiations.
No party disputes the technical adequacy of the plan for
surface cleanup. The testimony offered by the government from
ATTACHMENT A
-16-
PAGE
16
OF
19
Kush, Hunt and Bock convinces the Court that the plan submitted
to the Court is acceptable to the state and federal agencies
charged in the first instance with assuring that the proposal
is adequate to protect public health and the environment. The
Court has satisfied itself through expert testimony that the
plan is adequate to accomplish the surface cleanup of the site
consistent with the protection of public health and the en-
vironment which are the goals of the Resource Conservation and
Recovery Act (RCRA) ; Comprehensive Environmental Response
Compensation Liability Act and the Clean Water Act.
In addition, the Court has determined that the approach
taken here by the United States with respect to hazardous waste
cases generally is reasonable from the standpoint of the
long-range public interest. It is desirable to settle such
cases, without the necessity for litigation.
In considering the reasonableness of the approach taken by
the government, the Court has inquired of counsel as to how the
group of 24 was developed. The Court is satisfied that the
approach taken by the government in negotiating with this group
was a reasonable one, having in mind the statutory goals of
Superfund. Counsel has represented to the Court the fol-
lowing: As a part of the surface' cleanup the 24 companies have
created a Trust Fund utilizing a Trust Agreement as their legal
mechanism and that IBM, General Motors, Cummins Engine and
Merchants National Bank & Trust Company of Indianapolis will be
the Trustees. The purpose of this Trust Agreement is to
ATTACHMENT A
-17-
DECE
17
on
19
provide for the creation of the Fund which will make payments
to Chemical Waste Management to perform the work described in
Exhibit B to the Consent Decree. In this regard, the Trust
Fund has an agreement with Chemical Waste Management to perform
the work described in Exhibit B. This agreement contains a
schedule for payments to Chemical Waste Management, and it
establishes rights and responsibilities as between Chemical
Waste Management and the Trust Fund. The purpose of both of
these agreements is to create a funding mechanism to insure
prompt completion of the work. Neither the United States nor
the State is a party to either of these two agreements. There
is a further agreement being negotiated between the United
States and the City of Seymour and the Seymour Aviation Board
pertaining to the covenant not to sue being given to those
companies who are not a party to this group of 24. Counsel has
represented to the Court that the United States has no other
agreements with the 24 consenting companies listed in Exhibit A
to the Consent Decree concerning the cleanup of the Seymour
Site.
Under the standards enunciated above, the Court finds that
the government's action in entering into this decree is reason-
able and is in the public interest. In reaching this deter-
mination, the Court has particularly considered the need to
abate the hazardous conditions at the site as expeditiously as
possible and the unavailability of any other prompt plan to
undertake the cleanup.
ATTACHMENT A
PAGE 18 OF 19
-18-
In its review of the Consent Decree, as originally filed
with the Court, the Court observed that the Decree provided
that the 24 companies were required to preserve records and
documents relating relating to Seymour Recycling Corporation
only for a six month period after the effective date of the
Decree. In response to a proposal by the Court, the companies
agreed to modify that provision (which is in Paragraph XI of
the Decree) to require that the companies will each preserve
"pending further Court order" records and documents relating to
Seymour Recycling Corporation. By this modification of the
Decree, the Court has insured the availability of documents and
records should a discovery request be made for them in the
ongoing litigation with those who are not a party to the
Consent Decree. Of course any party to whom a request for the
production of documents is made may assert any claims which he
has under the Federal Rules of Civil Procedure.
In summary, for the foregoing reasons, the Court believes
that the Consent Decree (as modified in Paragraph XI), is in
accordance with the public interest. It satisfies the require-
ments of legality, fairness and reasonableness. Accordingly,
the Court has this date signed and entered the Consent Decree.
Dated this
15th day of December, 1982.
Ailliam
UNITED STATES DISTRICT JUDGE
ATTACHMENT A
-19-
PAGE
19
OF
19
H 30
CONGRESSIONAL RECORD-HOUSE
January 3, 1983
feet. Under this bill, Panhandle can
do-leading
the
Nation-rather
than
ment from carrying out its responsibilities
get a handle on that contract. Or, like
on the next
in prosecuting under the Congressional
Columbia under Judge Levant's ruling,
I hope that the 98:h Congress will
Contempt Statute
which
is
exactly
it can face the music.
give serious attention to this proposal.
what they have failed and refused to do.
Mr. Speaker. in the many months
Under the circumstances, I renew my re-
since my good friend Bud Brown first
quest that your staff consider whether im-
FURTHER
INFORMATION
ON
introduced this bill, many interested
peachable offenses may have been commit-
CONTEMPT CITATION OF AD-
ted and also whether a Special Prosecutor
parties have suggested certain changes
MINISTRATION OF EPA
should be appointed.
to this text. I do not want anyone to
think that I have forgotten this be-
The SPEAKER pro tempore. Under
Very truly yours.
cause the original text is being reintro-
8 previous order of the House, the gen-
ELLIOTT H. LEVITAS,
Member of Congress.
duced verbatim. These suggestions
tleman from Georgia (Mr. LEVITAS) is
have been duly noted and are on file.
recognized for 10 minutes.
Mr. LEVITAS. Mr. Speaker. in an
[From the Congressional Record. Dec. 20,
But it was important to me to reintro-
effort to keep the Members of this
19821
duce the bill today, the very first day
House informed about the proceedings
RECENT OFFENSIVE LAWSUIT FILED AS UNITED
of the new Congress. For this reason, I
of the contempt citation of the Admin-
STATES GOVERNMENT VERSUS HOUSE OF
employed the original text.
istrator of the Environmental Protec-
REPRESENTATIVES OF THE UNITED STATES
Thank you, Mr. Speaker.
tion Agency, I am inserting for the
Mr. LEVITAS. Mr. Speaker, I take this time
RECORD & copy of 8 letter with enclo-
to update the Members on the Gorsuch con-
CONSTITUTIONAL AMENDMENT
sures, that I sent on December 29.
tempt of Congress matter that is now in
FOR A 6-YEAR PRESIDENTIAL
1982, to the Honorable PETER W.
process.
TERM
RODINO, JR., chairman of the House
Subsequent to the action of the House
Judiciary Committee:
last week in citing for contempt the Admin-
The SPEAKER pro tempore. Under
HOUSE OF REPRESENTATIVES,
istrator of the Environmental Protection
a previous order of the House, the gen-
Washington, D.C., December 29, 1982
Agency, the Department of Justice filed
tleman from Texas (Mr. BROOKS) is
Hon. PETER W. RODINO, Jr.
lawsuit unprecedented in the history of this.
recognized for 5 minutes.
Chairman, House Committee on the Judici-
Nation entitled the United States of Amer-
Mr. BROOKS. Mr. Speaker, nearly
ary, Rayburn House Office Building.
ica versus the House of Representatives of
200 years ago, at the Constitutional
Washington, D.C.
the United States et al. which in and of
DEAR MR. CHAIRMAN: In furtherance of
Convention in Philadelphia, our
itself is not only unprecedented, it is obvi-
our conversations about the contempt cita-
Founding Fathers debated the idea of
ously offensive by its very name.
tion of the Administrator of the Environ-
providing for a chief executive who
This Justice Department suit has been de-
mental Protection Agency (H. Res. 632) and
would serve one single 6-year term. As
the response of the Attorney General, I am
scribed by Lawrence Tribe, a professor of
enclosing a copy of a statement I made on
law at Harvard University. as totally with-
we know, this proposal was set aside in
the floor of the House on December 20.
out basis or merit. He accused the Justice
favor of 4-year terms, with a limit of
Subsequently, I received a copy of the en-
Department officials who filed the case with
two such terms placed on our Presi-
closed letter. dated December 27, 1982 from
"either abject ignorance of the Constitution
dents under the 22d amendment to the
the United States Attorney for the District
or contemptible cynicism about constitu-
Constitution. Events of our recent his-
of Columbia addressed to The Speaker con-
tional separation of powers."
tory have shown that it is time to give
cerning the same matter.
By instructing the U.S. attorney of the
additional consideration to single 6-
In addition to the matter of possible im-
District of Columbia not to fulfill his duties
year Presidential terms.
peachable offenses by the Attorney General
to prosecute the contempt as required by
The stresses and complexities of the
and the U.S. Attorney, the question also
the law, the Attorney General of the United
office of President of the United
arises whether a Special Prosecutor should
States has failed to faithfully execute the
be appointed to handle this case.
States have grown to almost unimag-
law and is engaging. in my judgment, in an
The U.S. Attorney's letter clearly spells
inable proportions in recent times. It
out his conflict of interest. Furthermore. his
obstruction of justice..
is vital that we do everything that we
conclusion that there is no requirement as
I would hope that the Judiciary Commit-
can to make this office as effective as
to any time (e.g. timely manner) when he is
tee will take action as promptly as possible
possible and to relieve those pressures
required to present the case to the grand
to inquire into whether the actions of the
that we can. We would all benefit if
jury under Section 194 of Title 2 USC is ob-
U.S. attorney and the Attorney General of
the occupant of the Oval Office were
viously an abandonment of his statutory
the United States constitute inpeachable of-
free to concentrate on running the
duties since under his interpretation he
fenses for failing to carry out and faithfully
could take 5 or 10 or 20 years or more to get
execute the law.
country instead of running for a
around to doing his duty. His statement
This is a very serious and grave matter
second 4-year term.
that he recognizes "the likelihood" that he
raising the most fundamental constitutional
Mr. Speaker. too often we have seen
is in disagreement with the House "over the
questions. Mr. Speaker, and I think that
how distracting and damaging to effec-
underlying merits of the controversy" fur-
when the highest law officer of this land
tive governance the pressures of re-
ther raises questions about his ability or
fails to obey the law. it brings the entire
election can be. Our Presidents have
willingness to discharge his statutory re-
system into discredit and into disrepute.
been forced to spend the entire year
sponsibilities.
The civil action to which the U.S. Attor-
Accordingly. I would hope that the Judici-
before an election undergoing grueling
ney refers is frivilous to begin with. but
ary Committee would promptly look into
primary and general election contests.
beyond that, the suit has no preliminary in-
this -matter to determine what further
while at the same time attempting to
junctive relief prohibiting the U.S. Attorney
action might be taken.
carry out their constitutional responsi-
or the House from proceeding under 2 USC
The truth is that what we really want is
bilities. I think it is clear that these
194. His startling decision that it would not
the information from EPA to proceed with
dual demands have been one source of
be "appropriate" to bring the matter before
our oversight investigation of the Super-
our failed Presidencies, and may in
the grand jury while the civil action is pend-
fund program to clean up the hundreds of
part account for the fact that no
ing is simply joining in with the Attorney
dangerous abandoned hazardous waste
General's flaunting of the law and reflects a
President since Dwight Eisenhower
dumps. This investigation is our constitu-
determination by both individuals not to
tional duty. It affects the health of the
has completed two terms in office.
take care that the law is faithfully execut-
American people.
Mr. Speaker, we must not add to the
ed.
burdens of the Presidency. The job
Finally, I enclose for your consideration
We do not want subpenas. We do not want
will call upon the full range of talent
copy of & portion of the transcript of the
contempt citations. We do not want im-
and capability of whoever holds the
hearing at which our Subcommittee cited
peachment proceedings. We do not want
office. A 6-year term will give our
the Administrator for contempt. The perti-
confrontation. We only want the facts so
nent, sworn testimony is that of Assistant
that we can do our job.
Presidents the time they need to carry
Attorney General Ted Olson. who stated,
However, the administration seems to
out their programs. Limiting them to &
under oath. that the role of the Justice De-
want a fight. They have failed to cooperate:
single 6-year term will allow them to
partment in advising the EPA Administra-
failed to respond to a subpena: and now are
focus on the job they were elected to
tor would not inhibit the Justice Depart-
failing to faithfully execute the law. That is
ATTACHMENT B
January 3, 1983
CONGRESSIONAL RECORD HOUSE
H31
our only way to get the facts. we must go
Mr. LEVITAS. Thank you, Mr. Olson.
only bankruptcy and banksuptcy-re-
forward.
Let me just ask you this question again. It
lated cases as under present law.
is preliminary in nature. I don't want to get
U.S. DEPARTMENT OF JUSTICE, U.S.
down the line and see if there is any prob-
Article III bankruptcy judges would
ATTORNEY. DISTRICT OF COLUM-
lem. As you are aware, these proceedings
receive an annual salary of $65,000.
BIA,
may, as a matter of law, hopefully not but
The current salary of a bankruptcy
Washington, D.C. December 27, 1982
may lead to prosecution under the congres-
judge is $58,500. It is important that
Hon. THOMAS P. O'NEILL, Jr.,
sional intent statute. I am trying to inquire.
the level of salary be raised slightly in
Speaker, U.S. House of Representatives,
whether it is the Department of Justice's
order to attract article III bankruptcy
Washington, D.C.
position that you may furnish information
judges of the highest caliber and
DEAR MR. SPEAKER. This is in response to
to Mrs. Gorsuch notwithstanding the fact
your communication of December 17. 1982,
qualifications, particularly experi-
that later prosecution for contempt may
certifying to me House Resolution 632 re-
result from these proceedings and that fur-
enced, mid-career practitioners from
garding the production of documents by
nishing such representation will neither in-
the private sector.
The Honorable Anne M. Gorsuch, Adminis-
hibit nor prevent the department from car-
Somewhat improved retirement
trator of the United States Environmental
rying out its statutory responsibilities.
benefits are provided under the bill to
Protection Agency.
Mr. OLSON. This is not the appropriate
former bankruptcy judges who are not
On December 16, 1982. Civil Action
time for the Attorney General or Depart-
Number 82-3583 was filed by the Depart-
appointed to the article III court pro-
ment of Justice to make a determination as
ment of Justice in the United States District
vided that they meet certain service
to who might represent an individual in &
Court for the District of Columbia. In that
qualifications and provided that they
particular case or what particular case may
case, the Department seeks to have the Dis-
be prosecuted under circumstances that
remain on the bench during the tran-
trict Court declare that the compelled pro-
have not yet developed, Mr. Chairman.
sition to the article III bankruptcy
duction of the documents sought by the
Mr. LEVITAS. Therefore, it is your position.
court. It is important that there be a
House of Representatives unconstitutional-
as I understand it. that the fact that you
smooth and orderly transition to the
ly would contravene important separation
have advised Mrs. Gorsuch, as I understand
article III court system and that can
of powers principles. and that the subpoena
it, concerning this matter and the Attorney
issued for those documents is constitutional-
only occur, particularly under the cur-
General has, and your participation in these
ly defective. Pursuant to Section 547 of
rent workload. if experienced judges
proceedings today, would not prevent the
Title 28. United States Code, I am responsi-
remain on the bench for the transition
Justice Department from discharging its
ble within this district for prosecuting, for
statutory responsibilities under the congres-
period. These retirement provisions
the Government, all civil actions, suits. or
sional contempt statute if that should,
provide an incentive for bankruptcy
proceedings in which the United States is
which we hope it will not, eventuate?
judges-particulariy many who may
concerned. Accordingly, although the prin-
Mr. OLSON. We do not believe that any-
not be appointed solely for political
cipal work in the pending case is being done
thing we have done to date or intend to do
reasons-to continue to serve during
by the Civil Division of the Department of
at this hearing would jeopardize the ability
Justice, I nonetheless am in the posture of
the transition period.
of the Attorney General to discharge his re-
being legally responsible for the prosecution
The retirement provisions of the bill
sponsibilities under the Constitution and
of that civil action for the Government.
laws of the United States.4
are less generous than those contained
Under the same statutory section, I also
in H.R. 6978 as it was reported by the
am responsible for prosecuting, within this
committee last year. Qualifying transi-
district. all offenses against the United
BANKRUPTCY COURT ACT OF
tion judges would receive retirement
States. As part of the discreation which I
1983
pay at a rate equal to 2½ percent of
must exercise as the chief prosecuting offi-
cer of this district. a. determination must be
The SPEAKER pro tempore. Under
average pay times years of service,
made as to when a matter should be submit-
a previous order of the House. the gen-
never to exceed 80 percent of salary.
ted to a grand jury.
tleman from New Jersey (Mr. RODINO)
There are several other amendments
I am keenly aware of the provisions of
is recognized for 5 minutes.
to the bill as it is being introduced
Section 194 of Title 2, United States Code.
Mr. RODINO. Mr. Speaker, today, I
today from the version that was re-
It should be noted that that section of the
am introducing & bill to resolve the
ported by the Judiciary Committee
Code quite properly does not include & man-
date as to the timing of submitting a matter
constitutional crisis created in the
last year. The bill provides that bank-
bankruptcy courts by the Inaction of
ruptcy judges cannot be even tempo-
to & grand jury.
I recognize the degree of interest which
the 97th Congress and the denial by
rarily assigned to the district or circuit
you and your colleagues have in this pro-
the Supreme Court of the application
court. Article III bankruptcy judges
ceeding. Accordingly, as & matter of courte-
of the Solicitor General of the United
are not authorized to hear any non-
sy I wish to advise you that I have conclud-
States for an extension of the stay
bankruptcy related case.
ed that it would not be appropriate for me
granted by the Court in the Northern
One of the major reasons for the
to consider bringing this matter before &
grand jury until the civil action has been re-
Pipeline Construction Co. against Mar-
separate bankruptcy court, which has
solved. While I recognize the likelihood that
athon Pipe Line Co.
long been in existence, is the need for
we are in disagreement over the underlying
Congress inaction undermines re-
expedition in bankruptcy cases. While
merits of the controversy, we do have a.
spect for the law by blatantly ignoring
all litigation should be expeditiously
common interest-namely, achieving & reso-
a constitutional mandate handed down
terminated, by the nature of bank-
lution of the disputed questions as expedi-
by the highest court in the land.
ruptcy, assets are deteriorating in
tiously as possible and with a minimum of
I believe resolution of the constitu-
value. In & liquidation case, the faster
adverse consequences to good government
tional problem in the bankruptcy
a case is terminated the more creditors
and to the country as a whole. Accordingly.
I urge that you pursue with us the use of
court system needs to be the first leg-
will receive. In a reorganization case,
the pending civil suit as the most effective
islative Item on the agenda of the Ju-
speed is absolutely essential if there is
medium in which to advance the judicial
diclary Committee in the 98th Con-
to be any chance for a successful reor-
resolution of the controversy.
gress and, for that reason, I am intro-
ganization. If bankruptcy judges are
You may be assured of my continuing and
ducing legislation which solves the
authorized to sit on nonbankruptcy
careful attention to this matter.
problem with the least cost and with
cases, there is a real danger that they
Respectfully,
the least change and displacement in
will be assigned to criminal cases be-
STANLEY S. HARRIS,
the present system. This bill simply
cause of Speedy Trial Act consider-
U.S. Attorney,
District of Columbia.
provides that U.S. bankruptcy judges
ations or used to clear up the large
be appointed by the President during
civil case backlog in the district courts.
Mr. LEVITAS. Also, I want to direct this to
good behavior, rather than for 14-year
If these matters took precedence over
the representative from the Justice Depart-
terms as is the case under the existing
bankruptcy cases there would not be
ment, Mr. Olson.
law.
any effective bankruptcy law-since
Mr. OLSON. Yes, Mr. Chairman.
This bill does not create 8 new court.
speed is critical.
Mr. LEVITAS. Since I am going to ask you &
question, I am required that I administer
does not authorize additional numbers
This bill also provides that the ap-
the oath to you for your response, if you
of judges or personnel, and does not in
pointment of the 227 article III bank-
would.
any way alter the jurisdiction of the
ruptcy judges authorized under the
(Witness sworn.]
bankruptcy courts, which encompasses
bill be staggered over a 3-year period-
ATTACHMENT B
PAGE
2
OF
2
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, et al.,
)
)
)
Plaintiffs,
)
)
V.
)
Civil Action No.
)
THE HOUSE OF REPRESENTATIVES OF
)
82-3583
THE UNITED STATES, et al.,
)
)
Defendants.
)
)
DECLARATION OF ROBERT M. PERRY
I, Robert M. Perry, declare:
1. I am the Associate Administrator for Legal and Enforce-
ment Counsel and the General Counsel of the United States
Environmental Protection Agency ("EPA"). I have held this
combined position since March of 1982.
2. The Office of Enforcement Counsel is within my super-
visory responsibilities and is headed by Michael A. Brown,
Enforcement Counsel. It has as its primary responsibility the
conduct of enforcement litigation actions, both civil and
criminal, against persons who violate environmental protection
legislation and regulations.
3. One such environmental law is the Comprehensive Environ-
mental Response, Compensation and Liability Act of 1980, P.L.
95-510, 94 Stat. 2767, December 11, 1980, codified at 42 U.S.C.
$$9601, et seq. and commonly known as "The Superfund Act."
Administrative Enforcement Of
The Superfund Act
4. The Superfund Act was designed to provide the federal
government with the tools to abate the risks posed by hundreds of
inactive and abandoned hazardous waste sites across the country.
The Act provides two basic mechanisms by which the federal govern-
ment may affect the cleanup of such sites. One mechanism allows
the government to expend money from the $1.6 billion "Superfund,"
which is derived from congressional appropriations and taxes on
crude oil, petroleum products and certain chemical products. See
42 U.S.C. § 9631. Once spent, the money may be recovered from
parties made liable for the cleanup costs pursuant to Section 107
of the Act. See 42 U.S.C. $ 9607. The second mechanism author-
izes the President to require the Attorney General to institute
judicial proceedings to "secure such relief as may be necessary to
abate" an imminent and substantial endangerment to public health
or welfare or the environment. See 42 U.S.C. $ 9606. See
generally United States V. Charles Price, 688 F.2d 204 (3rd Cir.
1982) ; United States V. Reilly Tar & Chemical Corporation, 546
F. Supp. 1100 (D. Minn. 1982) -
5. On August 14, 1981, President Reagan issued Executive
Order 12316, "Responses to Environmental Damage." By that order,
the President delegated part of his authority to carry out the
provisions to the Superfund Act to the Administrator of EPA.
Pursuant to that delegation, EPA now has the authority to identify
hazardous waste sites and to determine, among other things, the
parties potentially responsible for the generation of the hazard-
ous wastes located there. The Administrator of EPA may request
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the Attorney General to institute judicial actions, but only the
President may require him to do SO. See 42 U.S.C. § 9606.
6. Both mechanisms are part of an overall law enforcement
effort designed to protect the public health and welfare and the
environment from the effects of the release or threatened release
of hazardous substances which may present an imminent and substan-
tial danger. 42 U.S.C. § 9604(a). In addition to the institution
of judicial proceedings, the Act provides broad enforcement
powers, authorizing the President or his delegate to issue admin-
istrative orders necessary to protect the public health and
welfare or the environment and to require designated persons to
furnish information about the storage, treatment, handling or dis-
posal of hazardous substances. See 42 U.S.C. §§ 9606, 9604 (e) (I).
The Act also contains criminal penalties. 42 U.S.C. § 9603.
7. As with any new program, the implementation and enforce-
ment of the Superfund Act has required the government to put into
place the policies and personnel needed to carry out the statutory
mandates. In the two years since the Superfund Act became law,
EPA has pursued the implementation of this new statutory mandate
with vigor. It has developed and published the National Contin-
gency Plan required by Section 105 of the Act, 42 U.S.C. § 9605,
which serves as the basis for Superfund-financed cleanups. See 47
Fed. Reg. 31180 (July 16, 1982). It has developed an Interim
Priorities List identifying the 160 sites which pose the greatest
risk to the public health and welfare and the environment. With
assistance and input from the states, EPA has recently published
- 3 -
a proposed National Priorities List identifying the 418 sites
which, in EPA's judgment, require priority in use of the Superfund
to effect cleanup. See 47 Fed. Reg. 58476 (December 30,
*
1982)
It has developed and published enforcement guide-
lines, as required by Section 106 of the Act, in consultation with
the Attorney General. See 47 Fed. Reg. 20664 (May 13, 1982).
8. EPA has also pursued the enforcement of the Superfund Act
vigorously. Since the passage of Superfund, EPA has sent more
than 1,760 notice letters, undertaken Superfund-financed action at
112 sites involving the obligation of more than $236 million,
filed Superfund claims in 25 judicial actions and obtained two
criminal convictions. In its hazardous waste site efforts, the
government has reached settlements in 33 civil actions calling for
the expenditure of more than $121 million to conduct cleanup oper-
ations. In addition, the Agency and the Department are actively
negotiating with responsible parties concerning the cleanup of 56
sites around the country. A recent judicial decision under the
Superfund Act termed the government's approach in these cases
"reasonable from the standpoint of the long-range public
interest." United States V. Seymour Recycling Corporation, Civil
Action No. IP-80-457-C, F. Supp. , (S.D. Ind. Dec. 15,
1982), Slip. Op. (Attachment A to Plaintiffs' Points and
Authorities) at 17.
* / The National Priorities List is required by Section 105 (8) (B)
of the Act, 42 U.S.C. § 9605 (8) (B). Completion of the list must
be preceded by notice and opportunity for public comment, 42
U.S.C. $ 9605, para. 1, and may also be subject to legislative
veto. 42 U.S.C. $ 9655. The date for final promulgation of the
National Priorities List has not yet been determined.
- 4 -
9. EPA's goal in the implementation of the Superfund Act is,
of course, to effect cleanups which protect the public health and
welfare and the environment as expeditiously as possible. Since
the Superfund cannot pay for the cleanup of all sites and since
enforcement litigation is complex and time-consuming, EPA has
adopted an approach which seeks in the first instance to obtain
cleanup from parties it has identified as responsible for or
having contributed to the presence of hazardous substances at the
sites. If voluntary cleanup cannot be achieved, the Agency then
determines whether it will spend Superfund monies and sue for cost
recovery under Section 107 or use its enforcement authority under
Section 106 to obtain cleanup.
10. Before any meaningful contact with responsible parties
can occur or administrative or judicial enforcement proceedings
can be initiated, substantial time must be spent on investigation
and case preparation. Of necessity, this is a time-consuming,
resource-intensive process. It includes studying the nature and
extent of the hazard present at sites, identifying potentially
responsible parties and evaluating the evidence which exists or
must be generated to support the government's action. This
initial investigation is conducted by EPA attorneys and technical
staff. Since many sites have literally hundreds of "generators"
-- parties who produced or sent hazardous substances to the site
-- the initial investigation of such a site typically will consume
hundreds of hours and involve the examination of tens of thousands
of documents.
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11. Each continuing investigation is treated by EPA as an
enforcement matter, since the government will, in almost every
instance, proceed against responsible parties either for cost
recovery or for injunctive relief. Moreover, even where voluntary
settlements are obtained, EPA develops a strategy for conducting
negotiations which is part of its overall enforcement effort. The
staff which conduct the investigations are part of the Office of
Enforcement Counsel and the Office of Solid Waste and Emergency
Response, which are charged with the development and implementa-
tion of EPA's program in the hazardous waste area. At an early
stage in the case development process, prior to the time EPA form-
ally refers a case for the institution of judicial enforcement
proceedings, a Department of Justice attorney is assigned to
assist in the case evaluation and development process.
12. Once a case strategy has been developed, EPA notifies
responsible parties that it intends to take action at the site
unless they undertake an adequate program to clean up the site.
Typically, following the issuance of notice letters, EPA enters
into negotiations with responsible parties to reach an agreement
which would require those parties to clean up the site. Such
negotiations may involve hundreds of potentially responsible
parties and millions of dollars in cleanup costs. Moreover, EPA
may settle the case with some but not all parties and then have to
continue negotiations as to the remaining parties.
13. Because the enforcement process can be lengthy and
extremely complex, an enormous amount of paperwork is generated.
This includes data on the amounts, nature, and origin of waste
9 I 1
present at a site; records of interaction with state and local
government officials; records of the storage or disposal facility
itself, as well as of the generators, treaters, transporters, and
handlers of the substances which found their way to the site. It
also includes correspondence with responsible parties, contrac-
tors, state officials, and representatives of other federal
agencies, legal opinions and interpretation, internal memoranda on
such matters as negotiation strategy, rights and remedies, case
strengths and weaknesses and notes and logs from meetings, tele-
phone conversations, and private deliberations.
The Subpoena
14. On March 10, 1982, the Subcommittee on Investigations and
Oversight ("the Subcommittee") of the House Committee on Public
Works and Transportation ("the Committee") opened hearings on
certain environmental matters, including implementation of the
Superfund Act.
15. On September 15, 1982, Chairman Elliott J. Levitas, on
behalf of the Subcommittee, wrote a letter to the Administrator of
the EPA, Mrs. Gorsuch, which letter stated in pertinent part:
this letter, in conformance with
the provisions of section 104 (e) (2) (D)
of [the Superfund Act], is to request
that all information being reported to
or otherwise being obtained by [EPA] or
any other acquiring such information on
behalf of [EPA], be made available to
the subcommittee.
Exhibit A hereto.
- 7 -
16. In response to the Subcommittee's concerns, EPA made
available to the Subcommittee almost all documents from EPA's
files on the 160 interim priority sites. Those documents, from
open and closed Superfund enforcement cases, include data on the
amounts, nature, and origin of wastes present at hazardous waste
sites; correspondence between EPA and the generators of the
hazardous waste; records of interraction with state and local
government officials; correspondence with responsible parties,
contractors, state officials and representatives of other federal
agencies; notes and memoranda discussing the allocation of monies
to particular sites by EPA; cooperative agreements arranged with
the states involved; and notes and memoranda reflecting the
process of having the Superfund Office begin working on a site
while initiating settlement negotitions with the contractor. EPA
declined, however, to make available to the Subcommittee certain
sensitive law enforcement documents generated by government
attorneys and other enforcement personnel in the development of
potential litigation. Those documents, which are part of open law
enforcement files, are memoranda, notes, correspondence and other
written material discussing:
(a) the strengths and weakness of the government's
case against potentially responsible parties;
(b) legal issues presented by cases;
(c) anticipated defenses to the government's claims;
(d) timetables and other enforcement plans;
(e) negotiation and litigation strategy; and
(f) the names of potential witnesses, their anticipated
testimony and other evidentiary matters.
17. EPA's ability to conduct settlement negotiations with, or
litigation against, responsible parties would be seriously
hampered if sensitive law enforcement documents about such cases
were prematurely released to them. EPA would, for example, be at
an enormous disadvantage in attempting to negotiate an
environmentally appropriate settlement agreement with a party who
knew EPA's bottom-line settlement position, its negotiation
strategy, and its perception of the strengths and weaknesses of
the government's case. An enormous disadvantage would also be
imposed if the government had to litigate cases against parties
who were aware of the government's litigation strategy, its
evidence, its plans and its perceptions of the strengths and
weaknesses of its case.
18. Premature disclosure of sensitive enforcement documents
might also have an adverse effect upon the reputation of persons
whom EPA has preliminarily determined to be potentially responsi-
ble parties.
19. After EPA made its decision not to make sensitive law
enforcement documents available to the Subcommittee, there were a
number of meetings, letters and telephone conversations between
the Subcommittee on the one hand and EPA and the Department of
Justice on the other in an effort to work out an accommodation
with respect to those documents. EPA sought to accommodate the
Subcommittee's concerns about the withheld documents in a manner
which would satisfy the need to prevent their premature disclos-
ure. The Subcommittee attempted to assure EPA that, if EPA
produced the documents to the Subcommittee, an effort would be
made to maintain their confidentiality. However, such documents,
if produced, could be disclosed to other members of Congress
and that Congress could decide to make the documents public even
if EPA objected. See my letter of October 7, 1982 to Chairman
Levitas, Exhibit B hereto; Transcript of Subcommittee Hearing,
*
December 2, 1982, at 14-15; Exhibit E at 7.
20. On November 16, 1982, the Subcommittee issued, and on
November 22, 1982, the Subcommittee served on Mrs. Gorsuch a
subpoena ("the Subpoena") calling for her to appear before the
Subcommittee on December 2, 1982 and to produce at that time the
following described documents:
all books, records, correspondence,
memorandums, papers, notes and
documents drawn or received by the
Administrator and/or her repre-
sentatives since December 11, 1980,
including duplicates and excepting
shipping papers and other commercial
or business documents, contractor
and/or other technical documents,
for those sites listed as national
priorities pursuant to Section
105 (8) (B) of [the Superfund Act].
Exhibit D hereto.
21. Even though EPA had not promulgated the above-mentioned
statutory list of national priority sites, EPA undertook to meet
the Subcommittee's apparent concerns by beginning to gather all
documents pertinent to EPA's Interim Priorities List of 160 sites.
Some of those 160 cases were at that time in litigation and others
were in earlier stages of development and negotiation. While
gathering those documents, EPA segregated sensitive law enforce-
ment documents for separate review.
*
/ Cited portions of this lengthy hearing transcript are
attached hereto as Exhibit C. The entire transcript is available
upon request.
- 10 -
22. Because the controversy with the Subcommittee was
assuming more critical significance, it was brought to the atten-
tion of the Attorney General and by him to the President. There-
after the Attorney General and the President found that sensitive
law enforcement documents from open Superfund Act law enforcement
files might, if disclosed, adversely affect pending Superfund
enforcement action, overall enforcement policy or the rights of
individuals. Exhibit E hereto.
23. On November 30, 1982, the President concluded that dis-
semination of such documents would impair his solemn responsi-
bility to enforce the law and, pursuant to the authority vested in
him by the Constitution and laws of the United States, instructed
Mrs. Gorsuch that such documents should not be made available to
Congress or the public except in extraordinary circumstances.
Exhibit E. On the same day, the Attorney General wrote to
Chairman Levitas advising him of that policy. Exhibit F hereto.
24. Upon receiving this instruction, EPA intensively
reviewed sensitive law enforcement documents from open Superfund
Act law enforcement files to insure that no document was withheld
from the Subcommittee except as instructed by the President.
Michael Brown or I personally reviewed every such document pre-
liminarily identified by EPA staff. We concluded that certain of
those documents, if prematurely disclosed, would impair the
government's ability to enforce the Superfund Act. Those docu-
ments were also reviewed by the Department of Justice. As of
December 15, 1982, we had jointly decided to withhold sixty-four
such documents. The Subcommittee was provided with lists, Exhibit
G hereto, which identifed each of those documents and briefly
explained why each document was being withheld. The harm which
disclosure of such documents would cause is discussed in
paragraphs 16-18 above.
25. On December 2, 1982, Mrs. Gorsuch appeared before the
Subcommittee and advised it that, because no National Priorities
List of sites had yet been designated, no documents of the type
described in the Subpoena were in existence. Exhibit C at 1.
Nevertheless, in "a spirit of cooperation and comity,"
Mrs. Gorsuch advised the Subcommittee that she had instructed her
staff to gather all documents concerning the 160 interim priority
sites for production to the Subcommittee. Ibid. Such production
would include more than 750,000 pages of documents and, if
expedited, would cost approximately $245,000 and take more than
two months to complete it would cost $145,000 and take more than
five months to complete if done without overtime. Id. at 1-2.
She tendered to the Subcommittee the first five file boxes of such
documents, which she had brought with her to the hearing, but the
Subcommittee declined to accept delivery of those documents. Id.
at 4. Neither at that time nor at any subsequent time has the
Subcommittee asked to examine any of the documents Mrs. Gorsuch
brought to the hearing or offered to produce thereafter.
26. At the hearing, Mrs. Gorsuch also advised the Subcommit-
tee that, pursuant to the President's instructions, sensitive law
enforcement documents from open Superfund Act law enforcement
files would not be made available. Id. at 3.
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27. At the conclusion of the hearing, the Subcommittee
passed a resolution finding Mrs. Gorsuch to be in contempt for
failure to comply with the Subpoena and reporting the matter to
the full Committee. H.R. Rep. No. 968, 97th Cong., 2d Sess.
(1982) ("Committee Report") at 57.
28. A further attempt was made to resolve the impasse
between the Subcommittee and the Executive Branch at a meeting on
December 8, 1982, but that attempt was unsuccessful. See letter
from Assistant Attorney General Robert McConnell to Chairman
Levitas, December 9, 1982, Exhibit H hereto; Committee Report at
22-23.
29. On December 10, 1982, the Committee reported the matter
to the full House of Representatives together with a recommenda-
tion that she be cited for contempt of Congress. Committee Report
at 70.
30. On December 16, 1982, the House of Representatives
cited Mrs. Gorsuch for contempt of Congress. Exhibit I hereto at
3.
31. On December 17, 1982, the Speaker and Clerk of the
House of Representatives certified the contempt citation to the
United States Attorney for the District of Columbia for criminal
prosecution pursuant to 2 U.S.C. $§192 and 194. Exhibit I.
32. To develop cases effectively, EPA personnel both at
Headquarters and the Regions must discuss each case in an open and
candid manner among themselves and with the Department of Justice.
The defendants' demand for sensitive law enforcement documents
from open Superfund Act law enforcement files and their efforts to
- 13 -
prosecute Mrs. Gorsuch for her refusal to produce such documents
have impaired EPA's ability to enforce the Superfund Act by
impairing EPA's ability to assure its enforcement personnel that
sensitive enforcement information, if reduced to writing, will not
be prematurely disclosed.
33. The effective development of enforcement cases sometimes
involves the use of information provided by confidential
informants. The defendants' demand for sensitive law enforcement
documents from open Superfund Act law enforcement files and their
efforts to prosecute Mrs. Gorsuch for her refusal to produce such
documents impair EPA's ability to enforce the Superfund Act by
impairing EPA's ability to assure informants that, if they
cooperate with the Agency, their identities and the information
they provide will be effectively protected from premature
disclosure.
I declare under penalty of perjury that the foregoing is true
and correct to the best of my knowledge, information and belief.
Executed on January 10, 1983.
Robert ROBERT M. m. PERRY Peny
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LARRY SELIA, AUTHORITY -
September 15, 1982
Honorable Anne M. Gorsuch
Administrator
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
Dear Mrs. Gorsuch:
In March of this year, the Subcommittee on Investigations
and Oversight of the Committee on Public Works and Transportation
initiated a series of hearings to examine the regulation of
hazardous and toxic substance releases into the environment and
their effects on ground and surface water quality. As part of
this review, the Subcommittee is examining the efforts being made
by federal, state and local governments, and others, to carry out
the provisions of the "Superfund" law, the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980,
P.L. 96-510.
The effective conduct of this investigation will
necessarily require the review of the progress being made to
cleanup specific abandoned waste sites. Accordingly, this
letter, in conformance with the provisions of Section
104 (e) (2) (D) of P.L. 96-510, is to request that all information
being reported to or otherwise being obtained by the U.S.
Environmental Protection Agency or any others acquiring such
information on behalf of the agency, be made available to the
Subcommittee.
In that the Subcommittee's inquiry is of an ongoing
nature, and can be expected to involve all activities underway in
your Agency's ten regions, I recommend that you have the
appropriate person on your staff contact Bob Prolman (225-3274)
of the Subcommittee staff to work out the arrangements necessary
to facilitate this request.
PERRY DEC. EXH.
A
PAGE
OF
2
Honorable Anne M. Gorsuch
Page Two
September 15, 1982
I look forward to your full cooperation and assistance in
this matter.
With best wishes, I am,
Elliott E. Levitas
Chairman
Subcommittee on
Investigations and Oversight
EHL/tjm
CC: Mr. Robert Perry
PERRY DEC. EXH. A A
PAGE 2 OF 2
UNITED
STATE
AGENCY
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
PROTECTION
Oct7
WASHINGTON, DC 20460
OFFICE OF
LEGAL AND ENFORCEMENT COUNSEL
Honorable Elliott H. Levitas
Chairman
Subcommittee on Investigations and Oversight
Committee on Public Works and Transportation
U.S. House of Representatives
Washington, D.C. 20515
Dear Congressman Levitas:
I would like to express my appreciation to you and the
other members of your Subcommittee and staff who met with
Dr. Hernandez, John Daniel, members of my staff and me last
Friday morning. I realize that your schedules were extremely
crowded, particularly at that time, but I believe that the
time spent was very, productive.
On behalf of the Administrator, I acknowledge receipt
of your letter to her of September 15, 1982, requesting that
information being reported to or otherwise being obtained by
this Agency, or any others acquiring such information on
behalf of the Agency, within the purview of $104(e) (2) (D) of
the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, be made available to the Subcommittee.
As you know, in addition to our meeting last Friday, we
have had other meetings and telephone conferences with reprez
sentatives of your Subcommittee in an effort to understand
the general universe of information you wished to have made
available, and in order that our concerns regarding the sensi-
tivity and confidentiality of enforcement-related material
in our files be expressed and understood. We believe that
we have embarked on an aggressive and effective enforcement
program which is producing positive environmental results,
and are most concerned that nothing jeopardize that program.
Our discussion with you helped alleviate our concerns.
Pursuant to our discussions, we have contacted our Regional
offices in New York and Boston, which we understand to be the
two which your staff will visit first. We have instructed our
Regional attorneys to cooperate fully with your staff, and to
make available documents or information in our files regarding
the sites or facilities in which you are interested.
PERRY DEC. EXH. B
PAGE
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Internal enforcement documents which form the basis for
on-going or anticipated civil or criminal prosecutions are
extremely sensitive. These documents include, for example,
memoranda by Agency or Department of Justice attorneys containing
litigation and negotiation strategy, settlement positions,
names of informants in criminal cases, and other similar
material. Should you feel the need to review these documents,
we would be very willing to discuss further with you the
need or desirability of review of such documents, safeguards
for protection of confidentiality, Agency policy regarding
release or disclosure of such material, and the effect such
disclosure may have on the enforcement or prosecution of the
case. I am confident that, as we continue to work with you
on this matter, we will be able to satisfy your Subcommittee's
need for information, while at the same time, fully protecting
the internal Executive Branch deliberative process associated
with our execution of the law.
From our discussion, I know that you are fully aware of
the sensitive nature of much of the information which will be
reviewed or made available to you. For example, you will
undoubtedly have access to the names of persons, firms or
corporations who may, for a variety of reasons, be thought
initially to have contributed hazardous substances to a site,
only to find upon further investigation that the person, firm
or corporation was not involved in such contribution. Any
release of that information prior to its use in litigation
could cause substantial damage, not only to the person, firm
or corporation involved, but to the credibility of EPA's
enforcement program.
You, the other Subcommittee members and your staff have
all assured us that the information which you will receive or
review will be treated with the utmost confidence, and will
not be released to the press, the public or even to other
members of Congress until the Agency has advised you in writing
that such release would not jeopardize our enforcement efforts.
I sincerely appreciate those assurances, which are being
relied upon most heavily by us as the basis for our agreement.
Some of the documents in our files may be entitled to
protection under 18 USC $1905, and improper disclosure
of such documents can result in criminal penalties under
that statute and $104 (e) (2) (B) of the Comprehensive Environ-
mental Response, Compensation, and Liability Act of 1980.
We will endeavor to identify such documents at the time they
are made available, but your staff should also be aware of
the potential consequences of improper disclosure of such
material.
PERRY DEC. EXH. B
DACE
0
-3-
I believe that it is important to maintain close communi-
cations between your Subcommittee and the Agency regarding
any issue which might arise regarding your request. Should
your staff need to discuss any problem which arises, please
have them contact Richard Mays, Special Assistant to the
Enforcement Counsel, whose number is FTS 382-4146. Of course,
I hope that you will call me directly if I can be of service.
Sincerely,
Robert M. Perry
Associate Administrator
and General Counsel
CC: Anne M. Gorsuch
PERRY DEC. EXH. B
PAGE 3 OF 3
ESTIMONY OF MR. PROLMAN OF THE SUBCOMMITTEE STAFF]
NAME: HPW336010
PAGE
14
312 latter advising us that it was the Department of Justice's
313
opinion that the subcommittee did not have the authority
314
under the Superfund law to review the EPA's program
315
enforcement related files.
316
On September 30, 1982, the subcommittee met in executive
317
session and authorized the issuance of a subpoena to the EPA
318
Administrator, and other Agency officials as necessary, and
319
for documents, if EPA refuses the subcommittee access
320
request.
321
This took place at that time due to the pending recess of
322
the Congress and the fact that there were still outstanding
323
matters to take place, specifically a response to the
324
subcommittee chairman's earlier letter to the Administrator.
325
On October 1, 1982, EPA Deputy Administrator, John
326
Hernandez, General Counsel Robert Perry, and other EPA staff
327
with the subcommittee's chairman, Ranking Minority Member
328
and Congressman Molinari, and subcommittee staff at Dr.
329
Hernandez's request.
330
The EPA officials present assured the subcommittee that
331
they would cooperate and provide access to, and copies of
332
pertinent Superfund enforcement related files, and that they
333
would so indicate in a response to the subcommittee
334
chairman's earlier letter to the Administrator.
335
In response to questions bythe EPA officials present, the
336
subcommittee members and, as usual, you, yourself, Mr.
PERRY DEC. EXH. C
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NAME: HPW336010
PAGE
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337 Chairman, assured that the confidentiality of the Agency's
338
sensitive materials would be maintained.
339
On October 7, 1982, the subcommittee received a response
340
to the chairman's letter to the EPA Administrator, signed by
341
EPA Associate Administrator and General Counsel, Robert
342
Perry, advising that the Agency would make their files
343
available to the subcommittee, with the exception of
344
enforcement related material.
345
On October 8, 1982, the subcommittee staff met with Mr.
346
Perry and his staff at EPA headquarters to clarify the above-
347
mentioned letter. Mr. Perry advised that he would send an
348
additional letter clarifying the points of concern, and that
349
the subcommittee would have access to the information it
350
desired.
351
On October 12, 1982, the above-referenced follow-up letter
352
from EPA, signed by Mr. Perry, was received by the
353
subcommittee. The letter did not clarify or eliminate the
354
enforcement-related information access exception noted in
355
Mr. Perry's October 7 letter.
356
October 13-15, 1982, the subcommittee staff traveled to
357
EPA Regions I and II (Boston and New York) to review certain
358
Superfund site enforcement-related cases and attempted to
359
obtain these enforcement-related documents.
360
This trip was taken at that time based on the comments
361
that were being taken in good faith by the subcommittee that
PERRY DEC. EXH. C
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[TESTIMONY OF MRS. GORSUCH]
NAME: HPW336010
PAGE 55
1278 Administration's response to your subpoena of November 16
1279
and to offer the reasons for that response.
1280
Your subpoena, which I accepted personally on November 22,
1281
required "all books, records, correspondence,
1282
memorandums[sicl, papers, notes and documents" created by
1283
EPA since December 11, 1980, for all hazardous waste sites
1284
''listed as national priorities pursuant to Section
1285
105(8)(B) of Public Law 96-510, the 'Comprehensive
1286
Environmental Response, compensation, and Liability Act of
1287
1980. ...
1288
As the committee is no doubt aware, no sites have been
1289
listed pursuant to that public law which requires, among
1290
other things, public notice and comment, and is finally
1291
subject to congressional veto. To date, the Agency has
1292
issued only an interim priority list, not under Section
1293
105(8)(B). The subpoena, however, does not apply to any
1294
documents, therefore, in the possession or custody of EPA.
1295
Nevertheless, in a spirit of cooperation and comity, and
1296
trying to assume the intent of the subcommittee, I have
1297
directed my staff to begin to gather all documents
1298
pertaining to the 160 sites now on EPA's interim priority
1299
list.
1300
Applying the wording of your subpoena to the interim
1301
priority list would require the location, segregation,
1302
duplication, photocopying and shipping of more than 787,000
PERRY DEC. EXH. C
PAGE 3 OF 6
NAME: HPW336010
PAGE 56
1303 pages of documents. This material would fill more than 260
1304
standard government file drawers--or about 52 filing
1305
cabinets.
1306
Although I personally have grave doubts about the wisdom
1307
and the cost of requiring EPA to deliver such a volume of
1308
paper, following the direction of the President to cooperate
1309
with Congess wherever possible, the Agency is prepared to
1310
produce the majority of these documents as soon as possible.
1311
The time and cost of providing all the documents
1312
associated with the interim priority list obviously depends
1313
on the importance placed on the request by the subcommittee.
1314
We estimate that a ''rush'' job, with the use of
1315
contractors, overtime, and the reassignment of resources and
1316
personnel within the Agency, could be completed between
1317
February 15th and March 1st, and would cost approximately
1318
$245,000. This will also require the virtual halt of some
1319
segments of our enforcement programs for several weeks.
1320
Complying with the request without overtime, without
1321
neglecting the vital aspects of enforcement, and without the
1322
reassignment or reallocation of personnel or resources,
1323
would take more than 10,000 hours of staff time, which will
1324
cost roughly $145,000 and could probably be completed
1325
between May 15th and June 15th.
1326
At this point, we estimate that EPA has already devoted
1327
nearly 1,000 staff hours and spent roughly $15,000 in our
PERRY DEC. EXH. C
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NAME: HPW336010
PAGE 57
1328 efforts. I believe certain documents have already been
1329
produced for the committee today.
1330
In the interest of being perfectly candid with the
1331
subcommittee, however, I would like to inform you that
1332
sensitive documents found in open law enforcement files will
1333
not be made available to the subcommittee. To date, at
1334
least 23 such documents from our headquarters have been
1335
preliminarily identified, and a list of these is attached.
1336
As the Attorney General stated in his letter of November
1337
30:
1338
"It has been the policy of the Executive Branch
1339
throughout this Nation's history generally to decline to
1340
provide committees of Congress with access to or copies of
1341
law enforcement files except in the most extraordinary
1342
circumstances.
1343
Attorney General Robert Jackson, later Justice of the
1344
Supreme Court, wrote to Chairman Vinson in April of 1941:
1345
"Counsel for a defendant or prospective defendant, could
1346
have no greater help than to know how much or how little
1347
information the Government has, and what witnesses or
1348
sources of information it can rely upon. "
1349
This was neither a new policy nor an innovative one, but
1350
one that dates from the founding of our nation. Even in the
1351
specific terms of law enforcement investigations, as early
1352
as 1904, Attorney General Knox refused to supply to the
PERRY DEC. EXH. C
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NAME: HPW336010
PAGE 135
3188 further to say or members of the committee would care to
3189
pursue it further. But I am going to try to restrict
3190
repetitious covering of the same subject.
3191
MIS. GORSUCH. I understand.
3192
Mr. LEVITAS. As far as the documents that you have
3193
brought with you today, insofar as the committee is
3194
concerned they are not fully responsive to the subpoena of -
3195
the committee. Under the circumstancs I would suggest that
3196
they be held in abeyance until the matter is resolved one
3197
way or the other, and that they be maintained in your
3198
custody until that time.
3199
MIS. GORSUCH. All right, Mr. Chairman. Thank you very
3200
much.
3201
Mr. LEVITAS. Thank you very much.
3202
Mr. Prolman, Mr. Esposito.
3203
Mr. BONER. Mr. Chairman, while they are making their way
3204
up may I ask an inquiry to Representative Molinari? Did I
3205
hear him say that you had sought a particular case in your
3206
State, had sought information and on the grounds of what I
3207
would assume to be enforcement sensitive you were denied
3208
right to see that and that the cleanup of the disposal site
3209
was even approved by EPA itself. Yet finally after once
3210
again being told no, for whatever reason, I assume under the
3211
auspices of enforcement sensitivity, that you realized that
3212
the company that was cleaning up the site, in fact was
PERRY DEC. EXH.
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ORIGINAL
BY AUTHORITY OF THE HOUSE OF REPRESENTATIVES OF THE CONGRESS OF THE
UNITED STATES OF AMERICA
To Robert S. Prolman and/or Sante J. Esposito
You are hereby commanded to summon ANNE M. GORSUCH, Administrator,
United States Environmental Protection Agency,
401 M Street, S. W., Washington, D. C. 20460
Subcommittee on Investigations and Oversight
to be and appear before the
of the Public Works and Transportation
Committee of the House of Representatives of the United States, of which the Hon.
Elliott H. Levitas
is chairman, and to produce all
books, records, correspondence, memorandums, papers, notes and documents drawn
or received by the Administrator and/or her representatives since December 11, 1980,
including duplicates and excepting shipping papers and other commercial or business
documents, contractor and/or other technical documents, for those sites listed as
national priorities pursuant to Section 105(8)(B) of P.L. 96-510, the
"Comprehensive Environmental Response, Compensation, and Liability Act of 1980,"
in their chamber in the city of Washington. on
December 2, 1982
, at the hour of
10:00 a.m.
then and there to testify touching matters of inquiry committed to said Committee; and thexis she is
not to depart without leave of said Committee.
Herein fail not, and make return of this summons.
Witness my hand and the seal of the House of Representatives
of the United States, at the city of Washington, this
16th day of November
. 19 82
Chairman.
Attest:
EDMUND L. HENSHAW, JR. Clerk.
PERRY DEC. EXH. A
PAGE
I
OF 2
ORIGINAL
Subpena for ANNE M. GORSUCH
Administrator,
U.S. Environmental
Protection Agency
before the Committee on the
Served 1-32-82
RSOwh
PERRY DEC. EXH. D
PAGE 2 OF 2
House of Representatives
U.G. GOVERNMENT PRINTING OFFICE 80-433-h