[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