[Federal Register Volume 76, Number 28 (Thursday, February 10, 2011)]
[Notices]
[Pages 7559-7560]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-2991]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-9265-2]
Access in Litigation to Confidential Business Information;
Transfer of Information Claimed as Confidential Business Information to
the United States Department of Justice and Parties to Certain
Litigation
AGENCY: Environmental Protection Agency (``EPA'').
ACTION: Notice.
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SUMMARY: EPA has authorized the United States Department of Justice
(``DOJ'') to disclose, in response to discovery requests received by
the United States in the litigation styled, Tronox Incorporated, et
al., v. Anadarko Petroleum Corp., et al., Adv. Proc. No. 09-01198
(ALG), pending in the United States Bankruptcy Court for the Southern
District of New York (the ``Anadarko Litigation''), and in response to
discovery requests received by defendants Kerr-McGee Corporation and
Anadarko Petroleum Corporation (the ``Anadarko Securities Litigation
Defendants'') in the litigation styled, In re Tronox, Inc., Securities
Litigation 09-cv-06220 (SAS), pending in the United States District
Court for the Southern District of New York (the ``Tronox Securities
Litigation''), information which has been submitted to EPA by its
contractors that is claimed to be, or has been determined to be,
confidential business information (``CBI''). On October 21, 2010, EPA
provided notice in the Federal Register, 75 FR 65013 (the ``Anadarko
Litigation FRN''), of past disclosure and of ongoing and contemplated
future disclosure in the Anadarko Litigation. EPA is providing notice
of contemplated future disclosure in the Tronox Securities Litigation.
Interested persons may submit comments on this Notice to the address
noted below.
DATES: Access by DOJ and/or the parties to the Tronox Securities
Litigation to material discussed in this Notice that has been either
claimed or determined to be CBI is ongoing, and is expected to continue
in the future during the pendency of the Tronox Securities Litigation.
EPA will accept comments on this Notice through February 22, 2011.
ADDRESSES: For further information contact Craig Kaufman, Attorney-
Advisor, Office of Site Remediation Enforcement, U.S. Environmental
Protection Agency, 1200 Pennsylvania Ave., NW. (Mail Code 2272A),
Washington, DC 20460; telephone number: (202) 564-4284; e-mail address:
[email protected].
SUPPLEMENTARY INFORMATION: In accordance with 40 CFR 2.209(c)(1), EPA
has disclosed information, including CBI, to DOJ in response to a
written request for information from DOJ and/or on the initiative of
EPA because such disclosure was necessary to enable DOJ to carry out a
litigation function on behalf of EPA. DOJ has been served with
discovery requests seeking, among other things, documentation
supporting the proofs of claim filed by the United States of America in
the bankruptcy styled, In re Tronox Incorporated, et al., Case No. 09-
10156 (ALG) (Chapter 11), pending in the United Stated Bankruptcy Court
for the Southern District of New York (the ``Bankruptcy''). Those
proofs of claim were filed on behalf of, inter alia, EPA regarding the
debtors' environmental liabilities, including liabilities at sites at
which EPA's contractors may have provided services.
The parties to the Anadarko Litigation have entered into an Agreed
Protective Order, see Document No. 248 in the Bankruptcy docket, as
amended on August 12, 2009, see Document No. 622 (together, the
``AGP''), that will govern the treatment of information, including CBI,
that is designated ``Confidential'' pursuant to the AGP. The AGP
provides for limited dissemination of confidential information and for
the return or destruction of confidential information at the conclusion
of the Litigation. See, e.g., AGP, at ]]1, 10, 12-16, 21. In accordance
with 40 CFR 2.209(d), and pursuant to the Anadarko Litigation FRN, EPA
authorized DOJ to disclose information that originated from EPA to the
extent required to comply with the discovery obligations of the United
States in the Anadarko Litigation, including its obligations under the
AGP.
The lead plaintiffs in the Tronox Securities Litigation have served
the Anadarko Securities Litigation Defendants with document requests
seeking, inter alia, the production of documents that have been
produced to the Anadarko Securities Litigation Defendants in the
Anadarko Litigation. The Anadarko Securities Litigation Defendants are
seeking to produce documents to the lead plaintiffs in the Tronox
Securities Litigation, which will include documents the United States
produced to the Anadarko Securities Litigation Defendants in the
Anadarko Litigation, some of which was designated ``Confidential'' (the
``USA Confidential Documents'') pursuant to the AGP.
[[Page 7560]]
On December 28, 2010, the parties to the Tronox Securities
Litigation entered into an Agreed Protective Order, see Document No.
113 in the District Court docket (the ``Tronox Securities Litigation
AGP''), that will govern the treatment of information that is
designated ``Confidential'' pursuant to the Tronox Securities
Litigation AGP. The Tronox Securities Litigation AGP provides for
limited dissemination of confidential information and for the return or
destruction of confidential information at the conclusion of the
Litigation. See, e.g., Tronox Securities Litigation AGP, at ]]1, 9-10,
12-17, 21.
In accordance with 40 CFR 2.209(d), EPA is hereby giving notice
that it has authorized DOJ to consent to the production of the USA
Confidential Documents by the Anadarko Securities Litigation Defendants
to the lead plaintiffs in the Tronox Securities Litigation, so long as
the USA Confidential Documents may be re-designated as ``Confidential''
pursuant to the Tronox Securities Litigation AGP. Accordingly, business
information that is ordinarily entitled to confidential treatment under
existing Agency regulations (40 CFR Part 2) may be included in the
information that the Anadarko Securities Litigation Defendants will
release to parties in the Tronox Securities Litigation pursuant to the
Tronox Securities Litigation AGP.
As explained by EPA's Office of General Counsel at its Web site,
http://www.epa.gov/ogc/documents.htm, the CBI that may be disclosed in
the Tronox Securities Litigation could include, but is not limited to,
business information submitted by contractors and prospective
contractors, see generally Class Determination 1-95; business
information submitted in technical and cost proposals, see generally
Class Determination 2-78; and business information submitted in
contract proposals and related documents, see generally Class
Determination 2-79. CBI may also include information obtained by EPA
under the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (``CERCLA''), including information
provided to EPA, directly or indirectly, pursuant to section 104 of
CERCLA. All CBI that is disclosed in the Tronox Securities Litigation
will be designated ``Confidential'' pursuant to the AGP.
Information, including CBI, discussed in this Notice may relate to
certain companies and agencies that have provided services for EPA at
sites involved in the Anadarko Litigation, including but not limited to
the companies and agencies set forth in the Anadarko Litigation FRN.
Dated: February 3, 2011.
Elliott Gilberg,
Director, Office of Site Remediation Enforcement.
[FR Doc. 2011-2991 Filed 2-9-11; 8:45 am]
BILLING CODE 6560-50-P