i UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MAR -5 1985
OFFICE OF ENFORCEMENT
AND COMPLIANCE
MONITORING
MEMORANDUM
SUBJECT: Update of General Enforcement Policy Compendium -
.Memorandum
FROM: Covlrtney M.
Assistant Administrator for Enforcement
and Compliance Monitoring (LE-133)
TO: Assistant Administrators
Office of General Counsel
Associate Administrators
Regional Administrators
The attached seven documents are an update of the General
Enforcement Policy Compendium. Six of these new documents
should be added to the second edition of the compendium that
was issued on October 11, 1984. The new policies are:
0 Guidance for Implementing EPA's Contractor
Listing Authority (GM-31)
0 Implementation of Mandatory Contractor
Listing (GM-32)
0 Guidance for Calculating the Economic Benefit
cf Noncompliance for a Civil Penalty Assess-
ment (GM-33).
0 Policy Against "No Action" Assurances (GM-34)
0 Implementing Nationally Managed or Coordinated
Enforcement Actions: Addendum to Policy Frame-
work for State/EPA Enforcement Agreements (GM-35)
0 The Use of Administrative Discovery Devices in
the Development of Cases Assignee to the Office
of Criminal Investigations (GM-36)
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2
The seventh policy, "Functions and General Operating
Procedures for the Criminal Enforcement Program (GM-15)," is a
replacement for a similar previously issued document contained
in Volume I of the Compendium. Since the establishment of the
Office of Criminal Enforcement, operational changes have
necessitated revising operating procedures for the criminal
enforcement program. On January 1, 1985, OECM issued this new
procedures document. Please discard the previously issued
operating procedures for the criminal enforcement program
dated October 27, 1982, and the interim operating procedures
issued in January of 1984. Please label the new document
"GM-15" in the Compendium.
Also attached is a revised chronological table of contents
and a topical index of the currently effective general enforce-
ment policies and guidance documents. The revised table of
contents and index replaces all previously issued versions.
Please inform your staff that the complete Compendium
consists of 36 documents numbered sequentially GM-1 through
GM-36. Copies of the Compendium updates are available through
OECM's Legal Enforcement Policy Division until the supply is
exhausted.
If you or your staff would like copies of any of the
Compendium documents, please contact Arthene Pugh at
FTS 475-8784.
Attachments
cc: Regional Counsels
NEIC
EPA Library
Department of Justice
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c.
V-' - ' '' ' ' '''> ' -l--'"> '- ri;OTi:CTI()N AGENCY
OCT 30 1985
Ol I IC1 Ol [SK1RCI Ml NT
AMI COMIM IASCF
MOMIOKINl.
MEMORANDUM
SUBJECT: Update of General Enforcement Policy Compendium
Transmittal Memorandum
FROM: Courtney M. Price'
Assistant" Administrator for Enforcement and
Compliance Monitoring (LE-133)
TO: Assistant Administrators
Associate Administrators
Office of General Counsel
Regional Administrators
The attached seven documents are an update of the General
Enforcement Policy Compendium. This update consists of new
policies which have been implemented since the issuance of the
March 5, 1985, update. The new policies are:
0 The Role of EPA Supervisors During Parallel
Proceedings (GM-37)
0 Remittance of Fines and Civil Penalties (GM-38)
0 Enforcement Settlement Negotiations (GM-39)
0 Revised Regional Referral Package Cover
Letter and Data Sheet (GM-40)
0 Implementing the State/Federal Partnership
in Enforcement: State/Federal Enforcement
"Agreements" (GM-41)
0 Form of Settlement of Civil Judicial Cases
(GM-42)
0 Enforcement Document Release Guidelines (GM-43)
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-2-
Also attached is a revised chronological table of contents
and a topical index of the currently effective general enforce-
ment policies and guidance documents. The revised table of
contents and index replaces all previously issued versions.
The complete Compendium now consists of 43 documents
numbered sequentially GM-1 through GM-43. As new policies are
developed, OECM will transmit them to you for inclusion in the
Compendium. Copies of the complete Compendium including all
updates are available through OECM's Legal Enforcement Policy
Division.
If you or your staff would like copies of any of the
Compendium documents, please contact Arthene Pugh at FTS
475-8784. We are also planning to print up binders for the
General Enforcement Policy Compendium. If you would like a
binder for your office's Compendium, please also contact
Arthene Pugh.
Attachments
cc: Regional Counsels
NEIC
EPA Library
Department of Justice
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TABLE OF CONTENTS - GENERAL ENFORCEMENT POLICY COMPENDIUM
TITLE OF
DOCUMENT
DATE OF
DOCUMENT
TAB
Visitor's Releases and Hold 11/8/72
Harmless Agreements as a Condition
to Entry to EPA Employees on
Industrial Facilities
Professional Obligations of
Government Attorneys
Memorandum of Understanding Between
the Department of Justice and the
Environmental Protection Agency
"Ex Parte" Contacts in EPA
Rulemaking
Conduct of Inspections After the
Barlow's Decision
Contacts with Defendants and
Potential Defendants in
Enforcement Litigation
"Ex Parte" Rules Covering Communica- 12/10/81
tions Which are the Subject of Formal
Adjudicatory Hearings
Quantico Guidelines for Enforcement 4/8/82
Litigation
Agency Guidelines for Participation 4/30/82
in Grand Jury Investigations
Reorganization of the Office of 5/7/82
Regional Counsel (includes
Administrator's Memorandum of
September 15, 1981)
Coordination of Policy Development 6/23/82
and Review
GM - 1
4/19/76
6/15/77
8/4/77
4/11/79
10/7/81
GM -
GM -
GM -
GM -
GM -
2
3
4
5
6
GM - 7
GM - 8
GM - 9
GM - 10
GM - 11
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TABLE OF CONTENTS
PAGE 2
TITLE OF
DOCUMENT
DATE OF
DOCUMENT
TAB
General Operating Procedures for 7/6/82
EPA's Civil Enforcement Program
Case Referrals for Civil Litigation 9/7/82
Criminal Enforcement Priorities 10/12/82
for the Environmental Protection
Agency
Functions and General Operating 1/7/85
Procedures for the Criminal
Enforcement Program
Regional Counsel Reporting 8/3/83
Relationship
Guidance for Drafting Judicial 10/19/83
Consent Decrees
Implementation of Direct Referrals 11/28/83
for Civil Cases
Consent Decree Tracking Guidance 12/16/83
Guidance on Evidence Audit of
Case Files 12/30/83
Policy on Civil Penalties 2/16/84
A Framework for Statute-Specific 2/16/84
Approaches to Penalty Assessments
Guidance Concerning Compliance with 11/21/83
the Jencks Act
Working Principles Underlying EPA's 11/22/83
National Compliance/Enforcement
Programs
GM - 12
GM - 13
GM - 14
GM - 15
GM - 16
GM - 17
GM - 18
GM - 19
GM - 20
GM - 21
GM - 22
GM - 23
GM - 24
Federal Facilities Compliance
1/4/84
GM - 25
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TABLE OF CONTENTS
PAGE 3
TITLE OF
DOCUMENT
DATE OF
DOCUMENT
TAB
Headquarters Review and Tracking
of Civil Referrals
Guidelines for Enforcing Federal
District Court Orders
Liability of Corporate Shareholders
and Successor Corporations for
Abandoned Sites Under CERCLA
Guidance on Counting and Crediting
Civil Judicial Referrals
Policy and Procedures on Parallel
Proceedings at the Environmental
Protection Agency
Guidance for Implementing EPA's
Contractor Listing Authority
Implementation of Mandatory
Contractor Listing
Guidance for Calculating the
Economic Benefit of Noncompliance
for a Civil Penalty Assessment
Policy Against "No Action"
Assurances
Implementing Nationally Managed or
Coordinated Enforcement Actions:
Addendum to Policy Framework for
State/EPA Enforcement Agreements
The Use of Administrative Discovery
Devices in the Development of Cases
Assigned to the Office of Criminal
Investigations
The Role of EPA Supervisors
During Parallel Proceedings
3/08/84
4/18/84
6/13/84
6/15/84
1/23/84
7/18/84
8/08/84
11/05/84
11/16/84
1/04/85
2/16/84
GM - 26
GM - 27
GM - 28
GM - 29
GM - 30
GM - 31
GM - 32
GM - 33
GM - 34
GM - 35
GM - 36
3/12/85
GM - 37
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TABLE OF CONTENTS
PAGE 4
TITLE OF
DOCUMENT
DATE OF
DOCUMENT
TAB
Remittance of Fines and Civil
Penalties
Enforcement Settlement
Negotiations
Revised Regional Referral
Package Cover Letter and
Data Sheet
Implementing the State/
Federal Partnership in
Enforcement: State/Federal
Enforcement "Agreements"
Form of Settlement of Civil
Judicial Cases
Enforcement Document Release
Guidelines
4/15/85
5/22/85
5/30/85
6/26/84
7/24/85
9/16/85
GM - 38
GM - 39
GM - 40
GM - 41
GM - 42
GM - 43
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TOPICAL INDEX
GENERAL ENFORCEMENT POLICY - CIVIL
Administrative and General Procedures
Memorandum of Understanding Between the Department
of Justice and the Environmental Protection Agency GM - 3
Quantico Guidelines for Enforcement Litigation GM - 8
Reorganization of the Office of Regional Counsel GM - 10
Coordination of Policy Development and Review GM - 11
General Operating Procedures for EPA's Civil
Enforcement Program GM - 12
Case Referrals for Civil Litigation GM - 13
Regional Counsel Reporting Relationship GM - 16
Policy on Civil Penalties GM - 21
A Framework for Statute-Specific
Approaches to Penalty Assessments GM - 22
Working Principles Underlying EPA's
National Compliance/Enforcement Programs GM - 24
Federal Facilities Compliance Program GM - 25
Liability of Corporate Shareholders
and Successor Corporations for Abandoned
Sites Under CERCLA GM - 28
Guidance for Implementing EPA's
Contractor Listing Authority GM - 31
Implementation of Mandatory Contractor
Listing GM - 32
Guidance for Calculating the Economic
Benefit of Noncompliance for a Civil
Penalty Assessment GM - 33
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TOPICAL INDEX
PAGE 2
Implementing Nationally Managed or Coordinated
Enforcement Actions: Addendum to Policy Framework for
State/EPA Enforcement Agreements GM - 35
Remittance of Fines and Civil Penalties GM - 38
Implementing the State/Federal Partnership
in Enforcement: State/Federal Enforcement
"Agreements" GM - 41
Enforcement Document Release Guidelines GM - 43
Attorney Conduct
Professional Obligations of Government Attorneys GM - 2
Case Development/Litigation
Memorandum of Understanding Between the Department
of Justice and the Environmental Protection Agency GM - 3
Ouantico Guidelines for Enforcement Litigation GM - 8
Case Referrals for Civil Litigation GM - 14
Guidance for Drafting Judicial Consent Decrees GM - 17
Implementation of Direct Referrals for Civil Cases GM - 18
Guidance on Evidence Audit of Case Files GM - 20
Guidelines for Enforcing Federal District
Court Orders GM - 27
Guidance on Counting and Crediting
Civil Judicial Referrals GM - 29
Policy Against "No Action" Assurances GM - 34
Revised Regional Referral Package Cover
Letter and Data Sheet GM - 40
Form of Settlement of Civil Judicial Cases GM - 42
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TOPICAL INDEX
PAGE 3
Inspections
Visitor's Releases and Hold Harmless Agreements as a
Condition to Entry to EPA Employees on Industrial
Facilities GM - 1
Conduct of Inspections After the Barlow's Decision GM - 5
Rules Regarding Outside Contacts
"Ex Parte" Contacts in EPA Rulemaking GM - 4
Contacts With Defendants and Potential Defendants
Enforcement Litigation GM - 6
"Ex Parte" Rules Covering Communications On Issues
Which are the Subject of Formal Adjudicatory
Hearings GM - 7
Tracking and Monitoring
Consent Decree Tracking Guidance GM - 19
Headquarters Review and Tracking of
Civil Referrals GM - 26
Negotiation and Settlement
Guidance for Drafting Judicial Consent Decrees GM - 17
Enforcement Settlement Negotiations GM - 39
GENERAL ENFORCEMENT POLICY - CRIMINAL
Administration and General Procedures
Criminal Enforcement Priorities for the Environmental
Protection Agency GM - 14
Functions and General Operating Procedures for the
Criminal Enforcement Program GM - 15
Guidance Concerning Compliance with the
Jencks Act GM - 23
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TOPICAL INDEX
PAGE 4
Policy and Procedures on Parallel Proceedings
at the Environmental Protection Agency GM - 30
The Role of EPA Supervisors During Parallel
Proceedings GM - 37
Investigations
Agency guidelines for Participation in Grand Jury
Investigations GM - 9
The Use of Administrative Discovery Devices in the
Development of Cases Assigned to the Office of
Criminal Investigations GM - 36
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UNITED STA S ErJVIRON'MLNTAL PROTECT M AGENCY
WASHINGTO;.'. D.C. 20-100
OFFICE OF THL' CKfliiRAI, COUNSEL
UATCUSlDi: MALL
KOV 81372
1 Memorandum
' To: All Regional Counsels
f
From: Assistant Administrator for Enforcement and
General Counsel
i V ' .
Subject: Visitors' Releases and Hold I'.nralops Anreerncnts
as a Condition to Entry of Ei'A Employees on
Industrial Facilities _
FACTS
As a condition to entry on industrial facilities, certain
firms have refiuii'ed li?A cmployenn to sign ngrce.~rncs \;iiich
purport to release the company from tort liability.' The followius
"Visitors Release" required by the Owens-Corning Fiberglas
-Corporation is an example:
VISITORS RELEASE
.
In consideration o! permission to enter the
premises of Owens-Corning Fiberglas Corporation
and- beiny aware of the risk of injury from
equipment, negligence of employees or of other
visitors, and froir other causes, the undersigned
assumes nil risk, releases said corporation,
and agrees to hold it harmless from liability
^ for any injury tto him or his property while upon
*" its premises. . . .
READ CAIUTULIY BEFORE SICKING
In addition to such "Visitors Releases" employees or
their supervisors have been asked to sign entry permits which
include an ncrceinent that EPA will pay for any injury or damage
resulting frora our activities at the facility.
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.QUESTIONS
1. Docs. signing such a "Visitors Release" effectively
waive the employee's right to obtain damages for tortiuus injury?
2. Hay EPA employees contractually obligate the Agency
to pay for any injury or damage caused by our activities?
3. May firms condition EPA's entry upon signing such
agreements?
/ .
AKSIJERS -
f
* .*
1. Generally, yes; enploye.es waive their right to
damages and the government is prevented froia^ exercising its
right of subrogation under the Federal Enployeos1 Compensation \
Act. .
2. Ko; federal tort liability is established and limited
by the Federal Tort Clains Act, and such agreements are also
invalid as violative of the Anti-Deficiency Act.
3. Ko; EPA employees possess a right of entry under
both the Clean Air Act and the Federal Water Pollution Control
Act Amendments of 1972.
DISCUSSION
Although the precise effect of an advance release of
liability for negligence cannot be determined without reference
to the law of the state in which the tort occurs, we must
assume that such agreements are generally valid. By signing
such agreements EPA employees nay effectively waive their right
to sue for damages and the government's right of subrogation
under the Federal Employees' Compensation Act, 5 USC 8101 et seq.
The Restatement .of Contracts. Ch. 18, § 575 states:
*
j A bargain for exemption from liability for the
consequences of a willful breach of duty is illegal,
and a bargain for exception from liability for
the consequences of negligence is illegal if
(a) the parties are employer and employee and
the bargain relates to negligent injury of
the employee in the course of the employment,
or,
(b) one of the parties is charged with a duty of
public service, and the bargr.iu relates to
negligence in the performance of any part
of its duty to the public, for which it has
received or been promised compensation . . .
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With the exceptions mentioned in the Rest-.af.rr.gnt.Ht
supra, no general public policy secns to e>:iut against express
agreements for assumption of risk-, and they need nut be
supported by consideration. 10 Prosro.r on Tores § 55 and
RcstatoncMit of Torts 2d, Ch. 17A, §/i96H. Despite thia general
rule, cases arising under the Federal Tort Claims Act'involving
releases signed by civilian passengers prior to boarding ill-£.-ttod
government aircraft indicate that the courts do not favor such
agreements. (Friedman v. T.ocUhncfl Alrr.rnft Corn.. 138 .F. Sup?.
530 (1936)a release is no defense-against cross, willful, or
wanton negligence in Kew York; Rot-.o-.? v. -U.S.. 173 F. Supp. 547
(1959)a release is ineffective unless the flight is gratuitous;
Mongol 1 :u»r v. U. S. . 315 F2d ICO (1963)n release does not
destroy a cause of action for wrongful death in Massachusetts.)
Such apparent judicial disfavor of advance releases is, of course,
insufficient justification for assuming the risk of signing then,
and ordinary prudence requires us to assume their validity. Although
signing a release docs not affect the. employee's ri;;ht to benefits
under 3'KCA, such compensation will ordinarily be much less than
might he recovered in a tort action against the negligent
corporation.
Since the Federal Employees' Cor.peanation Act, 5 USC 8131
and 8132,. provides f.hac an enployee nr.y be required to assign
his right to sue third parties- to the United States ami that
the employee must, within limitations, p.-iy over any recovery
from third parties as reimbursement of l-'KCA benefits, the
employee's release prejudices the government's rights as well
as.his own. Employees should t'nerp.foro be instructed not to
sign s\ich releases under any clrcumstancp.s.
Although an EPA employee's express assumption of the risk
of injury to himself may be valid, an agreement which purports
to obligate EPA to pay all dairages caused by our activities is
not. The Federal Tort Claims Act, 28 USC 2674 provides:
«
The United State:: shall be liable, respecting
^ the provisions o:: this title relating to tort
claims, in the s.ine manner and to the sastc
extent as'a private individual under like
circumstances, but shall not be liable for
interest prior to judgment or for punitive damages .
Congress has granted only a limited waiver of the government's
sovereign immunity, and 28 USC 26SO lists exceptions to the
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general wnivor .stated in 28 U3C 267/», £ii£r«i.. Exceptions which
might: be relevant in cnr.cn arising out of the acuious of Ei'A
employees include 28 USC 26i'.0(a):
Any claim based upon an net or omission of an
employee of the Government, cxcrcir.in;; due care,
in the execution of a statute or regulation,
whether or not such statute or regulation be
valid, or based upon the exercise or performance
or the failure to exercise or perforn a discretionary
function or duty on the part of.-a federal agency
or an employee of the Government, whether or not
. the discretion involved be abused;
;'
and-28 USC 26SO(b): .....
» 4
Any claim arising out of assault, battery,
false inprisonnsnt, false arrest, Malicious
prosecution, abur.e of process, libel, Blander,
misrepresentation, deceit, or interference
with contract: rights . . .
Since the. government's tort liability is limited by statute,
an ndr.viuiatrative undertaking to expand such liability by
contract is probably invalid. In any event, J-TA should not
create the occasion for judicial resolution of thu question.
An additional basis for considering such indemnification
agreements invalid is the Anti-Deficiency Act, which provides
at 31 USC 665(a):
No officer or euj'loyee of the United States shall
raake or authorize an expenditure from or create
or authorize an obligation under any appropriation
or fund in excess of the amount available therein. . .
Sr.nce the extent of the government's obligation is uncertain,
the Comptroller General has seated that a contractual assumption
of tort''liability is not a lawful obligation of the. United States,
and payment may not be r.ade pursuant to such agreements. (7 CG 507,
15 CG 803, and 35 CO 86.) In fairness to companies which may
rely upon the validity of such indemnity provisions, employees
should be instructed not to sign them.
Inasmuch as the Clean Air Act and the Federal Water
J'ollution Control Act Amendments of lST72~~grant EPA employees
a right of entry to corporate facilities, a company may not
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lawfully condition the e::crcise of this riyaU upon ti.c signing
of a release or indemnity agreement. The Clean Air Act
provides, at 42 USC 1837c5(a) (2) :
. . . thn Administrator or his authorized
representative, upon presentation of his
credentials(A) r.hall have n right of entry
to, upon, or through any premises in which
an emission source is located or in which any
records required to be maintained' under paragraph
(1) of this section are located . . .
' f
»
The procedure for enforcement of this right is provided in
42 USC 1857c 8:
*
(a)(3) Whenever, on the basis 6T any information
available to him, the Administrator finds that any
person is; in violation of. . . any requirement
of section 1857c9 of this title, he r.ny issue an
order requiring such person ro comply with such section
or requirement, or he may briny a civil action in
accordance with subsection (b) of this section.
(b) The Administrator may coir.TRncc »a civil action for
appropriate relief, including a permanent or temporary
injunction, whenever any person(A) fails or refuses
to comply with any requirement of section lS57c9
of this title.
When, n firm refuses entry to an KPA employee performing his
functions under the Clean Air Act, the employee may appropriately
cite the statute and remind the company of EPA's right to seek
judicial enforcement. If the company persists in its rcf-usal,
EPA should go to court in preference to signing a "Visitors
Release."
In addition to procedure for judicial enforcement
similar^to that of the Clean Air Act, the Federal Water
Pollution Control Act Amendments of 1972 reinforce UPA's
right of entry with criminal and civil penalties. Section 309
states:
(c)(1) Any person who willfully or negligently violates
section . . .308 of this Act (NoteSection 308 establishes
the rij;ht of entry). . . shall be punished by a fine of not
less than $2,500 nor wore than §25,000 per day of violation,
or by imprisonment for not more than one year, or by both.
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If the conviction is for a violation co:iroi(.CcJ nftcr
a first conviction of sucli person under this paivu-.rap'.i,
puni.'O'.r.ant nhall be by .". fine of noc i:iorc than $;>U,OOvJ
per day of violation, or by irsipriconiiient for not more
than two years, or by both.
(3) For the purposes of thin subsection, the term 'person'
shall inc:in, in addition to the definition contained in
section 502(5) of this Act, any responsible corporate
officer.
(d) Any person who violates section . . ,308 of this Act.
and any person who violates any order issued by the
Administrator under subsection (a) of this section
(Notesubsection (a) provides for administrative orders
to enforce the right of entry), shall be subject to a
. civil penalty not to exceed $10,000 per day of such
violation.
In SRC v. Sen trie. 387 U.S. 5-U0.967) the Supreme Court
reversed the conviction of a corporation for refusal to admit
building inspectors of the City of Seattle. Justice White
held that the Fourth nnd Fourteenth Arr.cnJir.cnts required a
warrant for such inspections, even where the search \7as
reasonably related to protecting the public health and safety
and even where a corporation, rather than an individual, was
the; subject. Under Sen evidence obtained by inspectors; of
the Food and Druy Administration has been held inadmissible
v.'iisrc thu inspectors obtained consent to entrcr by threatening
prosecution under 21 USC 331, which provides criminal penalties
for refusal to permit entry, U.S. v.' Kramer Cror.ory Co..
418 F2d 987 (iJth Cir., 1969). Although two sioru recant Supreme
Court, decisions, Colonnade entering Corn, v. U.S.. 397 U.S. 72
(1970) and U.S. v. Cisunll. 92 S. Ct. 1593 (1972), may create
c'.oubt as to whether See retains its original vijjor (sec
Memorandum of the Assistant to the Deputy General Counsel,
September 29, 1972), the possibility that evidence obtained
under the FWPCA Amendments of 1972 will be ruled inadmissible
is a risk EPA need not assume.
S£nce the Amendments provide for judicial enforcement of
the rijjht of entry, EPA employees should be instructed not
to mention the civil or criminal penalties of Section 309
when faced with a refusal to permit entry. When such refusals
occur, this office, should be informed inmed lately so that a
decision can be made as to whether to issue
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UN'TED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
19 APR 1976
OFFICE Of
GENERAL COUNSEL
MEMORANDUM
TO: All Attorneys - Office of General Counsel and
Office of Enforcement
Regional Counsel
FROM: Robert V. Zener
General Counsel
Stanley I.'. Legro
Assistant Administrator for^nforcemejrt
SUBJECT: Professional Obligations of Government Attorneys
We believe it might be useful to discuss some of the obligations
that we have as attorneys for the Agency, both under the Canons of
Professional Ethics and under various provisions of law. The following
is not intended to be a complete statement of a government attorney's
professional obligations; rather, it is intended to highlight some
matters which may deserve attention.
1. Confidential commercial or financial information. The
Agency frequently is the recipient of confidential commercial or.
financial information. Under 18 U.S.C. 1905, disclosure of such
information without consent of the firm.involved is against the
law, and the Agency's regulations carry out this prohibition.
40 C.F.R. 2.119. Of course, this prohibition is binding on all
employees of the Agency. But we think it especially appropriate
to remind Agency attorneys of this obligation of confidentiality,
since Agsncy attorneys are so frequently entrusted with this type
of information.
2. Civil or criminal investigations. Agency attorneys are
frequently involved in investigations which could lead to referral
of cases to the Department of Justice for civil or criminal prose-
cution. Extreme care should be taken in making any public statement
-------
concerning such investigation, particularly where a possible criminal
violation is involved. Neither the fact that an investigation 1s in
progress nor the fact that a case has been referred to the Department
of Justice should be disclosed except where authorized by current
policy or specifically authorized. And in any event, a public
statement should not go beyond the corrjnent that an investigation is
in progress; no conclusions should be stated. Any statement that
the Agency believes a violation has occurred may be unfair to the
company or individuals involved, and could prejudice the Agency's
position in the enforcement action.
3. Attorney-client communications. The professional
obligations of an attorney to his client attach to a government
attorney's relationship to his agency. This includes the confi-
dentiality of attorney-client communications. This also includes
the obligation to represent the client's interest within the
bounds of the law and professional ethics. The following points
deal with specific problem areas:
i) Communications with the Department of Justice. These
should be held in confidence unless the consent of the attorney
involved at the Department of Justice is obtained.
ii) Legal advice. In the case of written opinions, some
judgment has to be exercised with respect to public release. Some
written opinions may constitute "statements of * * * interpretations
which have been adopted by the agency", in which case they must be
disclosed under the Freedom of Information Act, 5 U.S.C. 552(a)(2)(B).
In some cases, a written opinion is supplied on the understanding
that it will be widely distributed and made available to the public.
On the other hand, written opinions may be supplied on a confidential
basis, in which case the confidence should be respected. In any case,
oral opinions are to be held in confidence unless the program people
involved agree to disclosure.
iii) Support of Agency positions. An attorney's duty is to
represent his client's position; and this duty applies to government
attorneys. Of course, while a question is the subject of internal
debate, an attorney is free to take any position he feels 1s
reasonable and lawful on an issue; and this could include disagreement
with the position taken by any particular program office. However,
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once the Agency has taken a position, the attorney should support it '
in dealings with the outside world. If he feels he cannot support
it, he should request to be reassigned from that matter or resign.
iv) Dealing with outside parties represented by an attorney.
When you are dealing with outside parties whom you know to be
represented by an attorney in connection with the natter in question,
the Canons of Ethics require you to communicate with the attorney,
unless the attorney consents to direct communication with his client.
This can be especially significant in enforcement actions, where it
would be highly unethical to attempt to obtain leads and evidence
through direct communication with a party you know to be represented
by an attorney on that particular matter, unless the party's attorney
has agreed to this method of proceeding. Enforcement attorneys can,
of course, participate in general or routine plant inspections and
investigations. However, once the company becomes aware of any
potential enforcement action and their counsel assumes responsibility
for the matter, consent from opposing counsel would be necessary before
any interviewing of company employees occurs during subsequent inspections.
See Disciplinary Rule 7-104(a)(l) of the American Bar Association's Code
of Professional Responsibility.
4. Commitments on behalf of the Aoency. EPA lawyers are often
asked to make commitments to persons dealing with the Agency which
would bind EPA to taking (or not taking) certain actions or authorize
the other party to embark on a certain course of conduct. Such
commitments may significantly impact on other parts of the Agency
and it is important that final commitments not be made until the
necessary coordination with the affected offices has been accomplished.
This is, of course, a problem of working in'a large organization, but
as a natter of fairness to outside parties and effective representation
of the Agency, it is essential that there be internal agreement before
such commitments are made. Of course, the practicalities of negotiation
frequently make it necessary to reach an agreement at the staff level
with outside parties without first obtaining the necessary approvals
within the Agency. In this situation, the outside parties should be
advised that approval within the Agency is necessary before the Agency
is committed.
5. Ex Parte Communications. EPA attorneys are involved in a
number of different types of formal adversary proceedings, e.g., FIFRA
cancellations or f.'PDES hearings. Usually an independent decision
maker is involved, such as a Federal court judge or an ALJ, but
sometimes the decision maker may be an EPA employee assigned to that
particular proceeding. Where formal APA procedures apply, or the
Agency's rules of practice limit gA parte. communication, it is
-------
important that these prohibitions against ejx parte communications
be observed. To insure continued public confidence in the integrity
of our proceedings, it is imperative that there be no actual or
apparent improper influence by the staff presenting the Agency's
case to the presiding officer.
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3
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MEMORANDUM OF UNDERSTANDING
BETWEEN
THE DEPARTMENT' 0? JUSTICE
AND
THE ENVIRONMENTAL PROTECTION AGENCY
WHEREAS, the Department of Justice conducts the civil
litigation of the Environmental Protection Agency;
WHEREAS, the conduct of that litigation requires a
close and cooperative relationship between the attorneys
* .
of the Department of Justice and of the Environmental
Protection Agency;
WHEREAS, the achievement of a close and cooperative
.
relationship requires a clarification of the respective
roles of the attorneys of the Department of Justice ana of
the Environmental Protection Agency;
WHEREAS/ the Attorney General may decline to represent
the Agency in particular civil actions, in which case the
t
Agency nay be represented by its o*m attorneys; and
WHEREAS, most challenges to and enforcement of regulatory
standards and procedures adopted by the Environmental Pro-
tection Agency involve]scientific, -technical, and policy
issues and determinations developed in lengthy rulemaking
proceedings in which the Agency's attorneys have-been involved
and can provide the necessary expertise.
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- 2 -
?;0iv", therefore, the following memorandum of under-
standing is entered into betv/een the Attorney General of
the United States and the Administrator of the Environmental
*
Protection Agency for the purpose of promoting the efficient
and effective handling of civil litigation involving the ' .
Environmental Protection Agency;
1. The Attorney General of the United States (herein-
after referred to as.the "Attorney General") shall have
control over all, cases to which the Environmental Protection
Agency (hereinafter referred to as the "Agency") or the
Administrator of the Environmental Protection Agency (herein-
after referred to as the "Administrator") is a party.
2. Khen requested by the Administrator, the Attorney
General shall permit attorneys employed by the Agency
(hereinafter referred to as-MAgency participating attorneys")
to participate in cases involving direct review in the Courts
of Appeal, and shall also permit such attorneys to participate
in other civil cases to which either the Agency or the
.
Adminlrstrator are a party, provided, however, that:
(a) the Administrator or his delegate shall
designate a specific Agency participating attorney for
each cnso and shall communicate the name of such attorney
in writing to the Attorney General;
(b) such Agency participating attorney shall be
subject to the supervision and control of the Attorney
General; and
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- 3 -
(c) if required by the Attorney General, an
Agency participating attorney shall be appointed as a
Special Attorney or Special Assistant United States
Attorney and take the required oath prior to conducting
or participating in any kind of Court proceedings.
3. Agency attorneys shall not file any pleadings
*
or other documents in a court proceeding without the prior
" ^.
approval of the. Attorney General.
-4. 'It is 'understood that participation by Agency
attorneys under -this memorandum includes appearances in
Court, participation in trials and oral arguments, partici-
^.
pation in the preparation of briefs, memoranda and pleadings,
participation in discussions with opposing counsel, -including
settlement negotiations, and"all other aspects of case
preparation normally associated with the responsibilities
of an attorney in the conduct of litigation; provided,
however, that the Attorney-General shall retain control ovtr
the conduct of all litigation. Such control shall include
the rignt to allocate tasks between attorneys employed by
the Department of Justice and Agency participating attorneys.
In allocating tasks between the Department's and the Agency's
»
*
attorneys, the Attorney General shall give due consideration
*:o the substantive knowledge of the respective attorneys
of the matter at issue so that the Government's resources
are utilized to the best advantage.
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- 4 -
5. In the event of any disagreement between attorneys
of the Department of Justice and of the Agency concerning
the conduct of any case, the Administrator may obtain a
review of the matter in question by the Attorney General.
The Attorney General shall give full consideration to the views
and requests- of the Agency and shall make every effort to
eliminate disagreements, on a mutually satisfactory basis. In
carrying out such reviews, the Attorney General shall consult
with the Administrator. In implementing this provision, it
is understood that-the Attorney General will not be expected
by the Administrator to interfere with the direction of any
trial in progress.
6. The settlement of any case in which the Department
of Justice represents the Agency or the Administrator shall
require consultation with and concurrence of both the Adminis-
trator and the Attorney General.
7. The Administrator and the Attorney General shall
make an annual review of both .the Department's and the
Agency's personnel requirements for Agency litigation. The
Attorney General and the Administrator will cooperate in
making such appropriation requests as are required to main-
rain their respective staffs at a level adequate.to the needs
f«
of the Agency's litigation.
« *
8.' The. Attorney General shall establish specific
deadlines, not longer than 60 days, within which the Depart-
ment's Attorneys must either file complaints in Agency cases
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- 5 -
or report to the Attorney General why any such complaint
has not been filed. In the event any Department Attorney
does not file a co.-nplaint, he shall thereafter submit further
periodic reports to the Attorney General until the complaint*
is filed or a decision is reached*that it shall 'not be filed.
.
Copies of the reports required by this section shall be pro-
viced to the Agency.if requested.
9. If the Attorney General fails to file a complaint
within 120 days, of the referral of a request for litigation
and a litigation report by the Agency to the Attorney General,
then the Administrator may request the Attorney General to
%
"file a complaint within 30 days. Failure of the Attorney -
General to thereafter file a complaint within the said 30
*
days may be considered by tHe Administrator or his delegate
to be a failure of the Attorney General to notify the Adminis-
trator within a reasonable time that he will appear in litiga-
tion for purposes of Section 305 of the Clean Air Act, 42
U.S.C. 1857h-3, Section 506 of the Federal Water Pollution
Control Act, 33 U.S.C. 1366, or Section 1450 of the Safe
Drinking Water Act, 42 U.S.C. 300j-9; provided, however, that
the failure of the Attorney General to file a coinplair.t
within the time period requested by the Administrator in a
case in which the Administrator requested iimcdiate action
under Sections 311(e) and 504 of the Federal Water Pollution
Control Act, 33 U.S.C. 1321, 1364; Section 303 of the Clean
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- 6 -
Air Act, 42 U.S.C. 1857h-l; or Section 1431 of the Safe
Drinking Water Act, 42 U.S.C; 300i; to protect public
health may also be considered by the Administrator to be
a failure of the Attorney General to so notify the
Administrator under Section 305 of the Clean Air Act, 506
of the Federal Water Pollution Control Act or Section 1450
of the Safe Drinking Water Act.
V.
10. All requests of the /xgcncy for litigation shall
be submitted by the Agency through its General Counsel or
its Assistant Administrator for Enforcement to the Assistant
Attorney General for the Land and Natural Resources Division
%
or for the Civil Division, except matters requiring an
immediate temporary restraining order may be submitted by
regional Administrators of the Agency simultaneously to a
United States Attorney and the appropriate Assistant
Attorney General. All requests for litigation shall be
accompanied by a standard litigation report which shall
contain such information as shall be determined from tir.e-
to-time by the Attorney General to bo necessary in order to
prosecute Agency litigation. Similar reports shall also' be
provided for suits in which the Agency or the Administrator
is a defendant, as requested by the Attorney General.
11. The Agency shall make the relevant file of any
mo'ctcr that is the subject of litigation available to
attorneys for the Department of Justice at a convenient
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- 7 - . .
location when a request for litigation is submitted or
when the Department is required to defend the Agency or
the Administrator.
12. The Administrator shall undertake to review the
Agency's procedures for the preparation of the record in
cases involving direct review in the Courts of Appeal,
including analyses of such natters as assembly, indexing,
pagination, timing of preparation, and the allocation of
tasks between the Agency and the Department. The Adminis-
trator shall consult with the Attorney General on the
re-examination of these procedures.
13. The negotiation of any agreement to be filed in
court shall require the authorization and concurrence of
the Attorney General.
14. In conducting litigation for the Administrator,, the
Attorney General shall defer to the Administrator's inter-
pretation of scientific and technical matters.
15. Nothing in''this agreement shall-affect any authority
-of the Solicitor General to authorize or decline to authorize'
appeals by the Government from any district court to any
' ..
§
appellate court or petitions to such courts for the issur.r.cs
of extraordinary writs, such as the authority conferred by
28 CFR 0.20, or to carry out his traditional functions with
regard to appeals to or petitions for review by the Suprc*r.e:
Court.
16. In order to.effectively implement the terns of this
Memorandum, the Attorney General and the Administrator will
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- 8 -
transmit co.pics of this Memorandum to all personnel affected
by its provisions. This Memorandum shall not preclude the
Department and the Agency from entering into mutually satis-'
factory arrangements concerning the handling of a particular
case.
17. This Agreement shall apply to all cases filed on or
after the date of approval of this Agreement by the .Attorney
General and the Administrator.
18. The Attorney General and ths Administrator nay
delegate their respective functions and responsibilities
under this Agreement.
*» . *
19. The Department and the Agency shall adjust the
conduct of cases arising before the effective date of this
Agreement in a manner consistent with the spirit of this
Agreement.
GRIFFIN B. BELL
Attorney General
Date;
.
Adminii'trr.tor
Environme'-.taJ. Protection Agency
Date
ronmcjvcaj. rrotccticn AC
/ I .^» ^^ *
I " " f *.
-------
-' ' UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20-150
AUG 2 11981 -.
' - 0
. THE ADMINISTRATOR
Honorable William French Smith .
The Attorney General
Washington, O.C. 20530
RE: Memorandum of Understanding Between the Department
of Justice And the Environmental Protection Agency
Dear Mr. Attorney General:
Under Paragraph 10 of the Memorandum of Understanding
between the Department of Justice and the Environmental
Protection Agency dated June 15, 1977 (copy enclosed),
EPA's General Counsel and Assistant Administrator for
Enforcement, EPA, were given authority to request civil
litigation from the Department of Justice.
On July 1, 1981, the Environmental Protection Agency
underwent an'internal reorganization which resulted, in
part, in the abolishment of the Office of Enforcement as
well as the position of Assistant Administrator for
Enforcement. In addition, the Office of General Counsel was
placed under an Associate Administrator for Legal Counsel and
and Enforcement*.
\
The principal enforcement authorities previously
delegated to the Assistant Administrator for Enforcement
vere redelegated to the Associate Administrator for Legal
Counsel and Enforcement on July 14, 1981. Therefore, the
authority previously vested in the Assistant Administrator
for Enforcement under the above referenced memorandum now
resides in the Associate Administrator for Legal Counsel and
Enforcement.
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-2-
Accordingly, requests to the Department of Justice for
routine civil litigation under the terms of the Memorandum
of Understanding will now come from the Associate Administrator
for Legal Counsel and Enforcement. The present Associate
Administrator for Legal Counsel and Enforcement is Mr. Frank
A. Shepherd.
This reorganization and redelegation does notr of
course, affect the authority of Regional Administrators who
may continue to request litigation under Paragraph 10 of the
Memorandum of Understanding in matters requiring an immediate
temporary restraining order.
Sincerely yours,
Anne M. Gorsuch
cc: Assistant Attorney General
Land and Natural Resources Division
Assistant Attorney General
Civil Division
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r
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\ X3S? UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
|p ' WASHINGTON.-D.C. 2WGO IP '
AUG - 4 1977
. . ' . THE ADMINISTRATOR -
""."*
.""" ' . *
StlB'JECT: "Ex Parted Contacts in EPA Rulesaking
» *
... ^ .. . . .
FROM: . The Administrator V- . '."
- >. .>' . ;:-.: . . -.... .'
TO: . Addressees . " ' . " '. »-_: : -
- . - ' ' ' . ' ^ * ' ' . .- . .
In this memorandum I set-forth 'the guidelines all EPA
employees should follow in. discussing the merits of proposed
rules with interested persons outside the Agency during the '. .
period between proposal and promulgation.- the Deputy Administrator
and I and our immediate staffs will al.so observe these' guidelines.
'-..' .-.. . - ' - " .'
. " The General Counsel has recently informed -you. that such
conversations'might result in -a rule being held-illegal if they
took place without notice and opportunity for other interested
persons' to participate. .That advice was based on a recent decision
of the United States Court of Appeals for the District of Columbia ' . ,
Circuit. Home Box Office Inc. v. FCC. D. C. Cir. Ko. 75-1230 .: ".;. .
(decided March 25, 1977).A subsequent opinion by the sane court "
has moderated that legal danger substantially. 'Action for Childrens*
Television v. FCC, D. C. Cir. Ho. 74-2005 (decided July 1, 1377).
' . -.... '. ' .§
However, the legal danger has not disappeared. .More fundamentally,
I do not believe .that EPA. should base or appear to bsse its regulatory . '
decisions on- information or arguments presented informally that do not
appear on the public record. .Accordingly, I am estaolisMng the following
guidelines. ":-.... . . " " **
- . " - - * '.-'.
Behavior during crucial period between Proposal and Promulgation '
... . ' " '
. : '' During the period between proposal .and promulgation of a -rule all
employees may arid shou.ld be encouraged to respond to-inquiries about . .
the rulej explain how it would work* and attend public meetings of
interested groups (such as trade association conventions).
.-.-,. . . *.
During this period agency employees may (and often should) hold
meetings with interested persons for.the purpose of better understanding
any technical scientific and engineering issues involved or discussing
-------
.
»
*
the broader questions involved. In all cases, however, a-written
summary of the significant points made at the meetings must bs placed
in the ccwment file. * .' . . .
...
* »
This requirement applies to every form of discussion with outside-
interested persons whether -at. a trade association meeting, at EPA, -or
over the telephone as long as the discussion is significant. The .
memorandum should be prepared and forwarded within'two or three days'
of the meeting at the latest. .All net? data or significant arguments
presented at the meeting .should be reflected in tha nsnorandun. ' .
Discussions of generalities or. simple explanations of how tha rule
v/ould v/ork' need not be included. / . . '
. '.' . ' '.
I will continue to explore with the General Counsel's office and
others whether further actions to ensure that we provide full notice
and opportunity for comment in all our procedure
.. -
-.fr^rM-sA'riaa-ssj.BBff.
ADDRESSFFC ' " ' ' ' ' ' ' ' . ' "
ADDRESSEES
' '
Deputy.Administrator . .
Assistant Administrators '
Deputy. Assistant Adainistrators .
Office Directors
Regional Administrators m .('
Associate General Counsels * . '. V
Regional Counsels ' " *' "
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MEM3RSSDUM OFF1CE or enroRCEMENT
TO: Regional Administrators
Surveillance and Analysis Division Directors
Enforcement Division Directors
FROM: Assistant Administrator
for Enforcement _____ ____ - ........ - _- .
SUBJECT: Conduct of Inspections After the Barlow's Decision
I. Sunroary
This document is intended to provide guidance to the Regions in
the conduct of inspections in light of the recent Supreme Court decision
in Marshall v. Barlow's, Inc., _ U.S.^ _ , 98 S. Ct. 1816 (1978).
The decision bears upon the need to obtain warrants or othef process fcr
inspections pursuant to EPA-administered Acts.
In Barlow' s , the Supreme Court held that an QSHA inspector was not
entitled to enter the non-public portions of a work site without either
(1) the owner's consent, or (2) a varrant. The decision protects the
owner against any penalty or other punishment for insisting upon a warrant.
In summary, Barlow's should only have a limited effect on EPA
enforcement inspections:
o Inspections will generally continue as usual;
o Vhere an inspector is refused entry, EPA will seek a warrant through
the U.S. Attorney;
o Sanctions will not be imposed upon owners of establishments who insist
on a varrant before allowing inspections of the non-public portions
of an establishment.
The scope of the Barlow's decision is broad . It affects all current
inspection programs of EPA, including inspections conducted by State
personnel and by contractors. The Agency's procedures for inspections,
particularly vtoere entry is denied, vere largely in accord with
the provisions of Barlow's before the Supreme Court issued its ruling .
Nevertheless, a number of changes in Agency procedure are terranted.
Thus, it is important that all personnel involved in the inspection
process be familiar with the procedural guidelines contained in this docu-
ment.
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- 2 -
This document focuses on the preparation for and conduct of inspec-
tions, including (1) how to proceed when entry is denied, (2) under what
circumstances a warrant is necessary, and (3) what showing is neces-
sary to obtain a warrant.
II. Conduct of Inspections
The following material examines the procedural aspects of conducting
inspections under EPA-administered Acts. Inspections are considered in
three stages: (1) preparation for inspection of premises, (2) entry onto
premises, and (3) procedures to be followed where entry is refused.
A. Preparation
Adequate preparation should include consideration of the following
factors concerning the general nature of warrants and the role of personnel
conducting inspections.
(1) Seeking a Warrant Before Inspection
The Barlow's decision recognized that, on occasion, the Agency may
wish to obtain a warrant to conduct an inspection even before there has
been any refusal to allow entry. Such a warrant may be necessary when
surprise is particularly crucial to the inspection, or when a company's
prior bad conduct and prior refusals make it likely that warrantless
entry will be refused. Pre-inspection warrants may also be obtained where
the distance to a U.S. Attorney or a magistrate is considerable so that
excessive travel time would not be wasted if entry were denied.
At present, the seeking of such a warrant prior to an initial inspection
should be an exceptional circumstance, and should be cleared through
Headquarters. If refusals to allow entry without a warrant increase, such
warrants may be sought more frequently. (For specific instructions on
how to obtain a warrant, see Part D.)
(2) Administrative Inspections v. Criminal Investigations
It is particularly important for both inspectors and attorneys to
be aware of the extent to which evidence sought in a civil inspection can
be used in a criminal matter, and to know when it is necessary to secure a
criminal rather than a civil search warrant. There are three basic rules
to remember in this regard: (1) If the purpose of the inspection is to
discover and correct, through civil procedures, nonconpliance with regulatory
requirements, an administrative inspection (civil) warrant may be used;
(2) if the inspection is in fact intended, in whole or in part, to gather
evidence for a possible criminal prosecution, a criminal search warrant
must be obtained under Rule 41 of the Federal Rules of Criminal Procedure;
and (3) evidence obtained during a valid civil inspection is generally
admissible in criminal proceedings. These principles arise from the recent
Supreme Court cases of Marshall v. Barlow's, Inc., supra; Michigan v. Tyler,
U.S. , 98 S.Ct. 1942 (1978); and U.S. v. LaSalle National Bank,
_U.S. r, 57 L. Ed. 2d 221 (1978). It is not completely clear whether
a combined investigation for civil and criminal violations may be properly
conducted under a civil or "administrative" warrant, but we believe that
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- 3 -
a civil warrant can properly be used unless the intention is clearly to
conduct a criminal investigation.
(3) The Use of Contractors to Conduct Inspections
Several programs utilize private contractors to aid in the conduct
of inspections. Since, for the purpose of inspections, these contractors
are agents of the Federal government, the restrictions of the Barlow's
decision also apply to them. If contractors are to be conducting
inspections without the presence of actual EPA inspectors, these con-
tractors should be given training in how to conduct themselves when
entry is refused. With respect to obtaining or executing a warrant,
an EPA inspector should always participate in the process, even if
he was not at the inspection where entry was refused.
(4) Inspections Conducted by State Personnel
The Barlow's^ holding applies to inspections conducted by State
personnel and to joint Federal/State inspections. Because some EPA
programs are largely implemented through the States, it is essential
that the Regions assure that State-conducted inspections are conducted
in compliance with the Barlow^s decision, and encourage the State inspec-
tors to consult with their legal advisors when there is a refusal to
allow entry for inspection purposes. State personnel should be encouraged
to contact the EPA Regional Enforcement Office when any questions con-
cerning compliance with Barlow's arise.
With regard to specific procedures for States to follow, the
important points to remember are; (1) The State should not seek for-
cible entry without a warrant or penalize an owner for insisting upon
a warrant, and (2) the State legal system should provide a mechanism for
issuance of civil administrative inspection warrants. If a State is
enforcing an EPA program through a State statute, the warrant process
should be conducted through the State judicial system. Where a State
inspector is acting as a contractor to the Agency, any refusal to allow
entry should be handled as would a refusal to an Agency inspector as
described in section II.B.3. Where a State inspector is acting as a
State employee with both Federal and State credentials, he should utilize
State procredures unless the Federal warrant procedures are more advantageous,
in which case, the warrant should be sought under the general procedures
described below. The Regions Should also assure that all States which
enforce EPA programs report any denials of entry to the appropriate
Headquarters Enforcement Attorney for the reasons discussed in section
II.B.4.
B. Entry
(1) Consensual Entry
One of the assumptions underlying the Court's decision is that
most inspections will be consensual and that the administrative inspec-
tion framework will thus not be severely disrupted. Consequently, inspec-
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- 4 -
tions will normally continue as before the Barlow's decision was issued.
This means that the inspector will not normally secure a warrant before
undertaking an inspection but, in an attempt to gain admittance, will
present his credentials and issue a notice of inspection where required.
The establishment owner may complain about allowing an inspector to enter
or otherwise express his displeasure with EPA or the Federal government.
However, as long as he allows the inspector to enter, the entry is voluntary
and consensual unless the inspector is expressly told to leave the premises.
On the other hand, if the inspector has gained entry in a coercive manner
(either in a verbal or physical sense), the entry would not be consensual.
Consent must be given by the owner of the premises or the person in
charge of the premises at the time of the inspection. In the absence
of the owner, the inspector should make a good faith effort to determine
who is in charge of the establishment and present his credentials to
that person. Consent is generally needed only to inspect the non-public
portions of an establishment - i.e., any evidence that an inspector obtains
while in an area open to the public is admissible in an enforcement
proceeding.
(2) Withdrawal of Consent
The owner may withdraw his consent to the inspection at any time.
The inspection is valid to the extent to which it has progressed before
consent was withdc3wn. Thus, observations by the inspector, including
samples and photographs obtained before consent was withdrawn, would be
admissible in any subsequent enforcement action. Withdrawal of consent
is tantamount to a refusal to allow entry and should be treated as
discussed in section II.B.3. below, unless the inspection had progressed
far enough to accomplish its purposes.
(3) When Entry is Refused
Barlow's clearly establishes that the owner does have the right
to asX for a warrant under normal circumstances. Therefore, refusal
to allow entry for inspectional purposes will not lead to civil or criminal
penalties if the refusal is based on the inspector's lack of a warrant
and one of the exemptions discussed in Part C does not apply. If the
owner were to allow the inspector to enter his establishment only in
response to a threat of enforcement liability, it is quite possible that
any evidence obtained in such an inspection would be inadmissible. An
inspector may, however, inform the owner who refuses entry that he intends
to seek a warrant to compel the inspection. In any event, when entry is
1
FIFRA inspections are arguably not subject to this aspect of Barlow's
See discussion, p. 5 and 6.
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- 5 -
refused, the inspector should leave the practises immediately and telephone
the designated Regional Enforcement Attorney as soon as possible for
further instructions. The Regional Enforcement Attorney should contact
the U.S. Attorney's Office for the district in which the establishment
desired to be inspected is located and explain to the appropriate Assistant
United States Attorney the need for a warrant to conduct the particular
inspection, The Regional Attorney should arrange for the United States
Attorney to meet with the inspector as soon as possible. The inspector
should bring a copy of the appropriate draft warrant and affidavits.
Samples are provided in the appendix to this document.
(4) Headquarters Notification
It is essential that the Regions keep Headquarters informed of
all refusals to allow entry. The Regional Attorney should inform the
appropriate Headquarters Enforcement Attorney of any refusals to enter
and should send a copy of all papers filed to Headquarters. It is
necessary for Headquarters to monitor refusals and Regional success in
obtaining warrants to evaluate the need for improved procedures and to
assess the impact of Barlow*s on our compliance monitoring programs.
C. Areas Where a Right of Warrantless Entry Still Exists
1. Emergency Situations.
In an emergency, where there is no time to get a warrant, a warrant-
less inspection is permissible. In Camara v. Municipal"Court, 387 U.S. 523
(1967), the Supreme Court states that "nothing we say tcoayTs intended
to foreclose pronpt inspections, even without a warrant, that the law has
traditionally upheld in emergency situations". Nothing stated in Barlow's
indicates any intention by the court to retreat from this position. The
Regions will always have to exercise considerable judgment concerning
whether to secure a warrant when dealing with an emergency situation.
However, if entry is refused during an emergency, the Agency would need
the assistance of the U.S. Marshal to gain entry, and a warrant could
probably be obtained during the time necessary to secure that Marshal's
assistance.
An emergency situation would include potential imminent hazard
situations, as well as, situations where there is potential for destruction
of evidence or where evidence of a suspected violation may disappear during
the time that a warrant is being obtained.
(2) FIFRA Inspections.
There are some grounds for interpreting Barlow's as not being
applicable to FIFRA inspections. The Barlow's restrictions do not apply
to areas that have been subject to a long standing and pervasive history
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of government regulation. An Agency administrative law judge held recently
that even after the Barlow's decision/ refusal to allow a warrantless
inspection of a FIFKA regulated establishment properly subjected the
owner to civil penalty. N. Jonas & Co., Inc., I.F. & R Docket No. III-121C
(July 27, 1978). For the present, however, FIFRA inspections should be
conducted under the same requirements applicable to other enforcement
programs*
(3) "Open Fields" and "In Plain View" situations.
Observation by inspectors of things that are in plain view, (.!£,
of things that a member of the public could be in a position to observe) does
not require a warrant. Thus, an inspector's observations from the public
area of a plant or even from certain private property not closed to
the public are admissible. Observations made even before presentation of
credentials while on private property which is not normally closed to the
public are admissible.
D. Securing a Warrant
There are several general rules for securing warrants. Three
documents have to be drafted: (a) an application for a warrant, (b) an
accompanying affidavit, and (c) the warrant itself. Each document should be
captioned with the District Court of jurisdiction, the title of the action,
and the title of the particular document.
The application for a warrant should generally identify the statutes
and regulations under which the Agency is seeking the warrant, and should
clearly identify the site or establishment desired to be inspected
(including, if possible, the owner and/or operator of the site).
The application can be a one or two page document if all of the factual
background for seeking the warrant is stated in the affidavit, and the
application so states. The application should be signed by the U.S.
Attorney or by his Assistant U.S. Attorney.
The affidavits in support of the warrant application are crucial
documents. Each affidavit should consist of consecutively numbered para-
graphs, which describe all of the facts that support warrant issuance. If
the warrant is sought in the absence of probable cause, it should recite
or incorporate the neutral administrative scheme which is the basis for
inspecting the particular establishment. Each-affidavit should be signed
by someone with personal knowlege of all the facts stated. In cases where
entry has been denied, this person would most likely be the inspector
who was denied entry. Note that an affidavit is a sworn statement that
must either by notarized or personally sworn to before the magistrate.
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- 7 -
The warrant is a direction to an appropriate official (an EPA
inspector, U.S. Marshal or other Federal officer) to enter a
specifically described location and perform specifically described
inspection functions. Since the inspection is limited by the terms of
the warrant, it is important to specify to the broadest extent possible
the areas that are intended to be inspected, any records to be inspec-
ted, any samples to be taken, any articles to be seized, etc. While
a broad warrant may be permissible in civil administrative inspections,
a vague or overly broad warrant will probably not be signed by the
magistrate and may prove susceptible to constitutional challenge
The draft warrant should be ready for the magistrate's signature at the
time of submission via a motion to quash and suppress evidence in
Federal District court. Once the magistrate signs the draft warrant, it
is an enforceable document. Either following the magistrate's signature
or on a separate page, the draft warrant should contain a "return of
serv-ice" or "certificate of service". This portion of the warrant should
indicate upon whom the warrant was personally served and should be signed
and dated by the inspector. As they are developed, more specific warrant-
issuance documents will be drafted and submitted to the Regions.
E. Standards or Bases for the Issuance of Administrative Warrants.
The Barlow's decision establishes three standards or bases for the
issuance of administrative warrants. Accordingly, warrants may be obtained
upon a showing: 1) of traditional criminal probable cause, 2) of civil
probable cause, or 3) that the establishment was selected for inspection
pursuant to a neutral administrative inspection scheme.
1. Civil specific probable cause warrant.
Where there is some specific probable cause for issuance of a warrant,
such as an employee complaint or competitor's tip, the inspector should be
prepared to describe to the U.S. Attorney in detail the basis for this
probable cause.
The basis for probable cause will be stated in the affidavit in
support of the warrant. This warrant should be used when the suspected
violation is one that would result in a civil penalty or other civil
action.
2. Civil probable cause based on a neutral administrative
inspection schemed
Where there is no specific reason to think that a violation has been
committed, a warrant may still be issued if the Agency can show that the
establishment is being inspected pursuant to a neutral administrative
scheme. As the Supreme Court stated in Barlow's;
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- 8 -
"Probable cause in the criminal law sense is not required. '
For purposes of an administrative search, such as this, probable
cause justifying the issuance of a warrant may be based not only
on specific evidence of an existing violation, but also on a
showing that "reasonable legislati\« or administrative standards
for conducting an ... inspection are satisfied with respect
to a particular [establishment]". A warrant showing that a speci-
fic business has been chosen for an OSHA search on the basis of a
general administrative plan for the enforcement of the act derived
from neutral sources such as, for example, dispersion of employees
in various type of industries across a given area, and the desired
frequency of searches in any of the lesser divisions of the area,
would protect an employers Fourth Amendment rights."
Every program enforced by the Agency has such a scheme by which it prioritizes
and schedules its inspections. For example, a scheme under which every permit
holder in a given program is inspected on an annual basis is a satisfactory
neutral administrative scheme. Also, a scheme in vftich one out of every three
known PCB transformer repair shops is inspected on an annual basis is satis-
factory, as long as, neutral criteria such as random selection are used to
select the individual establishment to be inspected. Headquarters will prepare
and transmit to the Regions the particular neutral administrative scheme under
which each program's inspections are to be conducted. Inspections not based
on specific probable cause must be based on neutral administrative schemes for
a warrant to be issued. Examples of two neutral administrative schemes are
provided in the appendix. (Attachments II and III)
The Assistant U.S. Attorney will request the inspector to prepare and
sign an affidavit that states the facts as he knows them. The statement
should include the sequence of events culminating in the refusal to allow
entry and a recitation of either the specific probable cause or the
neutral administrative scheme which led to the particular establishment's
selection for inspection. Die Assistant U.S. Attorney will then present
a request for an inspection warrant, a suggested warrant, and the inspector's
affidavit to a magistrate or Federal district court judge.2
3. Criminal Warrants.
Where the purpose of the inspection is to gather evidence for a
criminal prosecution, the inspector and the Regional Attorney should request
that the U.S. Attorney seek a criminal warrant under Rule 41 of the Federal
Rules of Criminal Procedure. This requires a specific showing of probable
cause to believe that evidence of a crime will be discovered. Agency policy
on the seeking of criminal warrants has not been affected by Barlow* s. The
2
The Barlow's decision states that imposing the warrant requirement
on OSHA would not invalidate warrantless search provisions in other
regulatory statutes since many such statutes already "envision resort
-------
-9-
distinction betveen administrative inspections and criminal varran't
situations is discussed in Section II.A.2.
F. Inspecting with a Warrant
Once the warrant has been issued by the magistrate or judge, the
inspector may proceed to the establishment to commence or continue the
inspection. Where there is a high probability that entry will be refused
even with a werrant or vfcere there are threats of violence, the inspector
should be accompanied by a U.S. Marshal when he goes to serve the warrant
on the recalcitrant owner. The inspector should never hajnself attempt
to make any forceful entry of the establishment. If the owner refuses
entry to an inspector holding a warrant but not accompanied by a U.S.
Marshal, the inspector should leave the establishment and infom the
Assistant U.S. Attorney and the designated Regional Attorney. They will
take appropriate action such as seeking a citation for contempt. Where
the inspector is accompanied by a U.S. Marshal, the Marshal is principally
charged with executing the warrant. Thus, if a refusal or threat to
refuse occurs, the inspector should abide by the U.S. Marshal's decision
whether it is to leave, to seek forcible entry, or otherwise.
The inspector should conduct the inspection strictly in accordance
with the warrant. If sampling is authorized, the inspector must be sure
to carefully follow all procedures, including the presentation of receipts
for all samples taken. If records or other property are authorized to be "
taken, the inspector must receipt the property taken and maintain an
inventory of anything taken fron the premises. This inventory will be
examined by the magistrate to assure that the warrant's authority has
not been exceeded.
2 continued from page 8.
to Federal court enforcement when entry is refused". There is thus
some question as to vnether the existence of a non-warrant Federal
court enforcement mechanism in a statute requires the use of that
mechanism rather than warrant issuance. We believe that the Barlow's
decision gives the agency the choice of whether to proceed through warrant
issuance or through an application for an injunction, since the decision
is largely based on the fact that a warrant procedure imposes virtually
no burden on the inspecting agency. In addition, an agency could attempt
to secure a warrant prior to inspection on an ex parte basis, something
not available under normal injunction proceedings. Several of the acts
enforced by EPA have provisions allowing the Administrator to seek
injunctive relief to assure compliance with the various parts of a
particular statute. There may be instances where it would be more appro-
priate to seek injunctive relief to gain entry to a facility than to
attempt to secure a warrant for inspection, although at this point we
cannot think of any. However, since the warrant process will be far
more expeditious than the seeking of an injunction, any decision to
seek such an injunction for inspection purposes should be cleared through
appropriate Headquarters staff.
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- 10 -
G. Returning the Warrant.
After the inspection has been completed, the warrant must be returned
to the magistrate. Whoever executes the warrant, (i.e., whoever performs
the inspection), must sign the return of service form indicating to whom
the warrant was served and the date of service. He should then return
the executed warrant to the U.S. Attorney who will formally return it to
the issuing magistrate or judge. If anything has been physically taken
from the premises, such as records or samples, an inventory of such items
must be submitted to the court, and the inspector must be present to certify
that the inventory is accurate and complete.
III. Conclusion
Except for requiring the Agency to formalize its neutral inspection
schemes, and for generally ending the Agency's authority for initiating
civil and/or criminal actions for refusal to allow warrantless inspections,
Barlow's should not interfere with EPA enforcement inspections.
Where there is doubt as to how to proceed in any entry case,
do not hesitate to call the respective Headquarters program contact for
assistance.
Marvin B. Burning
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APPENDIX
The Appendix contains three attachments.
Attachment I is a warrant application, affidavit and warrant to
conduct an inspection, where the Agency has specific probable cause to
believe that a civil violation of an EPA regulation or Act has occured.
In particular, care should be taken in spelling out the specific facts
that give rise to probable cause. Note also, that the scope of the
warrant is carefully articulated.
Attachment II is a warrant application, affidavit and warrant to
conduct an inspection in which the establishment to be inspected has
been selected under a neutral administrative inspection scheme. Note
the extraordinary detail of the administrative scheme describe in
paragraphs 8-20 of the affidavit. Such detail should not be necessary
for most EPA neutral administrative inspection schemes. Note also
the executed inventory and return of service forms attached to
Attachment II.
Attachment III contains a neutral administrative scheme for
CFC inspections. In implementing such a scheme, the Regions must still
utilize neutral criteria in selecting the individual establishment to
be inspected.
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OK LOUISIANA
IN TJtE MATTER OF :
CLEAN LAND AIR AND WATER, : NO-,
CORPORATION. D/3/A CLAW:
ROLLINS ENVIRONMENTAL SKRVICSS: APPLICATION FOR WARRANT TO
OF LOUISIANA INCORPORATED: : n~ER, INSPECT. PHOTOGRAPH.
ENVIRONMENTAL PURIFICATION : SAMPLE, COLLECT INFOF.MATIO;,'.
ADVANCEMENT IHCORPORATCD? : INSPECT AND COPY RECORDS
EPA, INC.: IN I3ERVILLE :
PARISH, LOUISIANA. t
TO THE UNITED STATES MAGISTRATE, by Che United
States of America, Environmental Protection Agency, through
Janes Stanley Leaelle, Assistant United States Attorney, for
the Middle District of Louisiana, hereby applies for A
warrant pursuant to section 308 of the Federal Water Pollution
Control Act, 33 U.S.C. 1318. and the Resource Conservation
and Recovery Act of 1976, 42 U.S.C. 6927, for the purpose of
conducting an inspection as follows:
To enter to, upon, or through the premises of a
waste disposal operation known by various names including
<
' the CLAW facility, vhich consists of three sites, to wit:
»
an injection veil site, a field office and storage tanks,
and waste pits and landfill site located in Iberville Parish,
*
Louisiana in or near the Bayou Sorrells coocunity. The
facility can be reached for disposal purposes by truck or
barge. The ownership and operation of the CLAW facility
waste disposal operation has been known, by several different
names, to wit: Clean Land Air Water Corporation (CLAW);
EPA, Incorporated; Environmental Purification Advancement;
Environmental Purification Abatement (EPA. Inc.) and Rollins
Environmental Services of Louisiana. .A company letterhead
using the names of CLAW and EPA, Inc. lists an address of
Route 2, Box 380B, Plaquemine, Louisiana 70764.' It is
reported in the newspapers and elsewhere, that on July 28,
1978 - three days after the death of the truck driver on the
*
CLAW facility - that the injection well on the CLAW facility
vas sold to the Rollins Environmental Services of Louisiana.
Unsubstantiated reports say that CLAW no longer has any
-------
of EPA, Inc. and the injection veil under the ownership of
Rollins. CLAW and EPA, Inc. are reported to be different
company and/or corporate names for the same people. Despite
these possible ownership changes, the CLAW facility apparently
continues to be operated as a single unit. Further, it is
reported that CLAW or Rollins is under .a federal court order
Co honor its contract with a client co accept waste. For
purposes of this application, affidavit and warrant, the
three sites and all operations will be referred co as CLAW.
The field office and storage .tanks are in or on
the edge of Bayou Sorrells; the injection well site is about
1.6 miles northwest of Bayou Sorrells oa che road; Che waste
* t
open pies-landfills are located approximately 7.7 miles
northwest "of Bayou Sorrels on che levee road. The address
of Che CLAW facility is Clean Land Air Water Corporation EPA
' Incorporated, Route 2. Box 380 B, Plaquesine, Louisiana.
These CLAW facilities are known Co EPA inspectors and well
known to local people. *
. The CLAW facility is an establishment subject Co
Che requirements and prohibitions of che Federal Water Pol-
lution Control Act, including but not limited co seccions
301, 308 and 311, and seccions 3007 and 7003 of che Resource
Conservation and Recovery Act of 1976 (42 U.S.C. 6901 et
Oa Friday, August 4, 1978, Edward McHaa, an
employee of che U.S. Environnenc Protection Agency, requested
permission to enter and inspect Che said preaises. Despite
ruch request, employees of said facility refused Co grant
access to said preaises to Mr. McHaa, & duly authorized
Inspector of Che Environneneal Protection Agency.
The determination eo inspect said premises was
eased on the following:
The sheriff's office of Iberville Parish requested
EPA's assistance and reported a death at said premises.
-------
Local unrest and fear of che facility was reported eo che
Enforcement Division of Region VI, Dallas,-Texas on Tuesday,
August 1. 1979 and £?A was requested to inspect the facility
vhich is a disposal site for chesical wastes and numerous
oil wastes of a hazardous and toxic nature.
Much local unrest, and agitation and coeplaines
have been reported on television and in newspapers concerning
Che operation of the CLAW facility as veil as the untimely
death of « 19 year old truck driver at said facility while
he was discharging waste into an open pic at the facility.
The death was possibly caused by his inhalation of toxic
fumes caused by a reaction of nixing incoepatible toxic
wastes in the open pit. Allegedly two eye witnesses to the
*
death of the driver reported the presence of choking fumes
in the area when they opened the doors to their truck eo
assist the driver who died. They also reported that his
truck was parked at the edge of che open pit truck ramp,
with doors open at the time of his dea'th. Subsequent
laboratory tests of waste taken froa the pits have shown
waste materials present in the pit, which, when mixed with
the speae caustic being discharged from the driver's truck
could have caused the death. Final autopsy reports arc
ccill pending. It is reported and alleged that CLAW facility
officials directed the driver to take and discharge his
wastes at che truck ramp in che open pic, rather than in che
injection well. Discharging toxic waste into an open pie,
at che edge of * pie* is not a safe, desirable, or acceptable
practice since toxic chemical reactions are very probable
and can result in the death of anyone nearby.
Edward.HcHam made a preliminary inspection
la which he obtained two pic samples and observed evidence
of oil, hazardous wastes, waste spillage and a "sloppy"
operation which appears to be dangerous to the environment
3-
-------
as veil as hazardous to che healch and welfare of citizens.
He further observed high water markings on the adjacent
trees ac the pit site and a lack of levees between the sites
"
and the Grand River and other waterways. In addition, there
tcay be hazardous wastes and conditions which cay pose a
tubsrantial present, or potential hazard to human health
or the environment when improperly treated, stored, trans-
ported, or disposed of, or otherwise managed.
The inspection will be commenced in daytime
.
vithin regular business hours and will begin as soon as
practicable after issuance of this warrant and will be
completed with reasonable promptness.
The inspection will be conducted by the
, *
United States Environmental Protection Agency (EPA) inspec-
tors, vho will be accompanied by the United States Marshal
to ensure entry so that the EPA inspectors may perform an
inspection of the premises, inspect and copy records, take
photographs, gather information and evidence and collect
' samples in accord with 33 USC 1313 and 42 USC 6927.
f A return will be made to the .Court upon completion
«
of the inspection. '
VEE3EFORE. it is respectfully requested that a
warrant to enter and inspect the CLAW facility be issued.
. Respectfully submitted,
DONALD L. BECOER
UNITED STATES ATTORNEY '
Xrrjiu. N^» //y,_i/», (>
,S STANLEY LtTlELLi
--, _
Assistant U.S. Attorney
-------
AFFIDAVIT .
STATE OF LOUISZAKA
PARISH OF EAST BATON ROUC2
I, Ecvard McKam, being duly sworn, hereby depose
and say:
1. I am a duly authorized employee of Che United
States Environmental Protection Agency, and my title is
Chemical Engineer, Surveillance and Analysis Division,
Region VI, which includes the State of Louisiana. In my
capacity, I am responsible for inspecting facilities subject
to various federal environmental statutes as directed by my
supervisors.
2. On Tuesday, August 1. 1973 from about 7:65
. p.m. Co 8:45 p.m., I made a preliminary inspection of the
CLAW facility and took two samples at the open pics. On
Wednesday, August 2. 1978, I took a few photographs of Che
facilities from around 3:30 p.m. until 5:30 p.m. On Thursday,.
August 3, 1978 aceonpanied by another £?A employee, I visited
Che facility and area from about 11:30 a.m. Co 2:00 p.m. and
also took a few additional photographs. These brief visits
Co Che site have only involved facility employees a few
minutes each tise in order to obtain passes from Che field
office and to open gates at various guard houses.
3. On Friday, August 4, 1978, a local depucy
sheriff, scace and local officials and I were refused admit-
Cance Co che CLAW facility. Also, CLAW officials were no
'
longer ac Che field house or available elsewhere co issue
passes Co enter. My previous sampling and inspection was
HOC sufficient for laboratory purposes* and needs Co be
resumed.
4. Information I have gathered in Che local
community, in newspapers, on television, from laboratory
-------
tests of the samples, frors the Iberville Sheriff's Office.
and at the CLAW facility strongly suggest and support the
need to enter and inspect the facilities for possible Section
301, 311 and other violations of the Federal Water Pollution
Control Act. Further, it is possible that there are hazardous
vastes and conditions on the premises as defined in Section
s
1004(5) of the Resource Conservation and Recovery Act of 1976.
(42 USC 6903) (5).which constitute an ixcainent hazard under
section 7003 of the Resource Conservation and Recovery Act
of 1976 (42 USC 6973). These observations are:
a. Obvious spillage of waste material on
the grounds of the CLAW facility subject to entering waterways.
b. Contaminated landfills with obviously
exposed and damaged barrels with their contents emptied or
nearly empty.
e. Drainage from landfills into a "fishing"
lake and other adjacent areas leading to various waterways.
d. Open pits containing oil wastes and
hazardous, toxic cheaical wastes with the appearance of
overflow wastes on the adjacent grounds as well as high
water marks on trees next to the open pits equal to or
higher than the pits.
«. The lack of levees becveen the facility
grounds and drainage areas to the Grand River, "fishing
lake", bayous and barrow ditches. * '
f.' Copies of a few facility log records and
other documents which were previously copied by the local
Sheriff's office. These records indicate the receipt and con-
tent of oil and hazardous chemical wastes accepted at the
facility.
g. "Poor maintenance and sloppy Housekeeping"
practices at the facility which leads a reasonable person to
recognize the likelihood of these prohibited pollutants
-2-
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UNITED STATES DISTRICT COURT
KIDDLE DISTRICT OF LOUISIANA
IN THE MATTES OF
CLEAN LAND AIR AND WATER,
CORPORATION, d/b/a CLAW;
ETC.,. £T AX..
SO. ?-
WARRANT OF ENTRV, INSPECTION
AND MONITORING PURSUANT TO
33 U.S.C.S131B ar.d 42 U.S.C.S6927
TOs THE UNITED STATES OF AMERICA, UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, THROUGH ITS DULY DESIGNATED REPRESENTATIVE
. OR REPRESENTATIVES, TEE UNITED STATES MARSHAL OR ANY OTHER
. FEDERAL OFFICES
An -application having been made by the United States of
America, United States Environmental Protection Agency, for a
warrant of entry, inspection and monitoring pursuant to 33 U.S.C.51318
and 42 O.S.C.S6927, as part of an inspection program designed to
assure compliance with the Federal Hater 'Pollution Control Act
(commonly referred to as the Clean Water Act}, 33 U.S.C.51251, et
scq., and the Resource and Recovery Act of 1976 (42 U.S.C.SSSQl.^ «t
seq.),.and an"affidavit having been made before me by Edward MeHam,
a duly authorized employee of the United States Environmental
Protection Agency, that he'has reason to believe that on the premises
-hereinafter described there exist a danger to the public's health,
*
welfare and safety and to the property, rivers and environment of
the United States, and that in order to determine whether the
Federal Water Pollution Control Act (commonly referred to as the
dean Water Act), 33 U.S.C.$1251, et »eq., and the Resource and
Recovery Act of 1976 (42 U.S.C.$6901, et seq.), and the rules,
regulations and orders issued pursuant to the Acts have been or
*
are being violated, an entry on, and inspection and monitoring
. *
of tho said described property is required and necessary;
-------
And, the Court being satisfied that there has been a
sufficient showing that reasonable legislative or administrative
standards for conducting an inspection and investigation have been
satisfied with respect to the said described property and -that
probable cause exist to issue a warrant for the entry, inspection,
investigation and monitoring of the said described premises*
X? IS KSP.S3Y ORDERED-ASO COS-IAN DEO that the United States
of America, United States Environmental Protection Agency, through
its duly designated representative or representatives, the Dnited
States Marshal, or any other federal officer are hereby entitled to
and shall be authorized and permitted to have entry upon the
following described property which is located in the Middle District
of Louisiana:
Those premises known as the Claw Corporation
waste disposal facility in Iberville Parish,
Louisiana, also known as EPA, Inc., Clear Land
Air Water Corporation, Environmental Purification *
Advancement, Environmental Purification Abatement
and possibly as the Rollins Environmental Services
of Louisiana, or which are owned or operated by
any other person or company,- corporation or part-
nership, which premises and property are more
particularly and further described as follows:
"From the intersection of La. Highway 75 and
^a. Highway 3066, proceed South for approximately
7 miles; turn right and travel across the Bayer-
Sorrel-Pontoon Bridge, a distance of approximately
0.2 miles; turn right, proceed northwest on Rout*
2, the Lower-Levee Scad, for approximately 1.6
niles at which point the pavement ends; at this
point turn right, travel approximately 0.1 miles
to the entrance of the injection well, which is
believed to be owned by Rollins Environmental
Services of Louisiana, Incorporated, all as is
shown on the attached photos identified as
Government Exhibits 1 and 2.'
Prom the Rollins Environmental Services of
° Louisiana, Incorporated office, proceed South on
the shell/gravel road for approximately 1.4 miles
until the road deadends. This is the location of
the field office of Clean Land Air and Water
(CLAW), and storage tanks which are believed to be
owned by Rollins Environmental Services of Louisiana
Incorporated, all as is shown on the attached photos
identified as Government Exhibits 3, 4, and 5.
-------
rrora the field office of CLAW, return to the
site of the intersection at the paved lower levee
road and the road leading to the dee? well injection
«ite (Rollins Environmental). Proceed nor.thwest
on the unsaved shell/gravel lower levee road
approximately 6.1 miles to the entrance road and
bridge leading to the gate guard house and gate
of the EPA, Inc. waste disposal pits. This sase
entrance road is 7.7 miles"northwest along the
lower levee road from the intersection of the lover
levee road and Bayou Scrrel Pontoon Bridge Road.
XT ZS FUaiKSR OSDSaSD that the entry, inspection,
investigation and monitoring authorized herein shall be conducted
during regular working hours or at other reasonable tines, within
reasonable linits and in a reasonable manner fxoa 6:00 a.m. to
10:00 p.m.
IT ZS FUKTESS ORDESEO that the warrant issued herein shall
be for the purpose of conducting an entry, inspection, investigation
and monitoring pursuant to 33 U.S.C.5131B and 42 U.S.C.$6.927
consisting of the following:
(1) entry to, open or through the above described
precises, including all buildings, structures,
equipment, cachines, devices, materials and
sites to inspect, sample, photograph, monitor
. or investigate the said premises;
(2)- access to, seizure of and copying of all records
. * pertaining to or related to the operation of
the facility, equipment, waste materials
which are accepted and stored on the premises
and records which are required to be maintained
under 33 U.S.C.51318(a)(A), and 42 O.S.C.S6901,
et seq., including any rules and regulations
and orders promulgated thereto;
(3) inspection, including photographing, of any
monitoring equipment or methods required by
33 U.S.C.S1318U) (A), and 42 O.S.C.S6927;
(4) inspection, including photographing,of any
equipment, processes or methods used in sampling,
monitoring or in waste characterization;
(5) inspection, including photographing, of any
equipment or methods used to dispose of or store
waste substances;
(6) sample and seize any pollutants, effluents,
.runoff, soil, or other materials or substances
which may reasonably be expected to pollute
the waters of the United States under various
conditions or threaten the public health, safety
or welfare of the people of the United States;
-------
(7) seize. Inspect, sample, and phctgraph any
evidence which constitutes or relates to or
is part of a violation of the Federal Water
Pollution Control Act (cotmonly referred to
*s the Clean Water Act, 33 U.S.C.51251, et
ceq., and the Resource and Recovery Act of 1976
.(42 U.S.C.$6901, et seq.J; . -
(8) . take such photographs of -the above authorized
procedures as nay be required or necessary.
2? IS FURTHER ORDERED that A copy of this warrant shall
be left at the premises at the tine of the inspection.
IT IS FURTHER ORDERED that if any property is seized,
the officer conducting the search and seizure shall leave a receipt
for the property taJcen and prepare a written inventory of the property
seised and return this warrant with the written inventory before
«e within 10 days from the date of thia warrant.
IT IS FURTHER ORDERED that the warrant authorized herein
shall be valid for a period of 10 days from the date of this warrant.
IT IS FURTHER ORDERED that the United States Marshal Is
hereby authorized and directed to assist tha representatives of the
United States Environmental Protection Agency in such manner as
say be reasonably necessary and required to execute this warrant
.and the provisions contained herein, including but not limited to
.gaining entry upon tha premises, the inspection and monitoring
thereof, the seizure and sampling of materials, docunents or equipment,
And the photographing of the premises, and the materials or equipment
thereon. * '
BATED this /<> day of Cuu^^^J- , 1978.
CNIXED STATED MAGISTRATE
-------
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
APPLICATION FOR
ADMINISTRATIVE WARRANTS
IN TEE MATTER OF: '
GENERAL MOTORS CORPORATION
GENERAL MOTORS ASSEMBLY DIVISION
KILLCW RUN AIRPORT
YPSILANTI, MICHIGAN 48197
AND
VEHICLE EMISSION LABORATORY
GENERAL MOTORS PROVING GROUND
MILFORD, MICHIGAN 48042
NOW COMES the Adainistrator for the Environmental
Protection Agency (EPA), by and through the United States
Attorney, and applies for administrative warrants to
enter, to observe a Selective Enforcement Audit (SEA) test
on a configuration of aotor vehicles manufactured by the
General Motors Corporation (CM) as specified in a SEA test
order issued on July 28, 1978, by the Assistant Administrator
for Enforcement of EPA, and to inspect GM's records, files,
papers, processes, controls, and facilities which are
involved in and associated with the manufacture and testing
of said configuration pursuant.to said test order at the*
premises of the GM Willow Run vehicle assembly plant, Ypsilanti,',
Michigan, and the GM vehicle emission laboratory at Milford,
Michigan, in accordance with Sections 206(b) and (c), 208(a)
and 301(a)*of the Clean Air Act, 42 U.S.C. S7S25(b) and (c),
7542(a) and 7601(aJ, and regulations promulgated thereunder.
In support of this application, the Administrator respectfully
submits an affidavit and proposed warrants.
James K. Robinson
United States Attorney
Assistant United States Attorney
-------
I'.? T:!£ UI.'ITEO STATES DISTRICT CO'JRT
FOR TU£ EASTS:::: DISTRICT or MICHIGAN
sc'jTHEr.:-: DIVISION .
IH TEE KATTSR 0?:
cni'sp-M, MOTO?.S CORSOPJVTXOH
GSKEJwiL KG7GRG ASSEHELY DIVISION
WILLOW HUN AI3POOT
Y?SILA?:TI, HICHICAI; 48197
AOMIXISTFATIVE WARP-KIT FOR
E::TRY AND u:??EC7io;c uxscs
THE CLEAN AIIl ACT
TO: MATTHEW A. LOW, Acting Chief, Manufacturers Programs
Branch, Mobile Source Enforcement Division, Office of
Enforcement, United States Environmental Protection Agency
(EPA), and any other duly designated enforcement officers or
employees of the EPA:
.Application having been made, and Matthew Low having shown
probable 'cause for the issuance of an administrative warrant
for entry; observation of a Selective Enforcement Audit
(SEA) test on the configuration of motor vehicles manufactured
by General Motors Corporation (GM) of engine family 84082
and engine code 2, with 4000-pound inertia weight. A-3
transmission and 2.56 rear axle ratio, as specified -in a SEA
tast order issued on July 28, 1978, by the Assistant Administrator
for Enforcement of EPA; and inspection of GM's records,
files, papers, processes, controls and facilities which are
involved in and associated with the manufacture and testing
of said configuration pursuant to said test order at the
premises of the CM Willow Run-vehicle assembly plant, Ypsilanti,
Michigan;
H3E3EF03S, pursuant to the Clean Mr Act as amended, 42 U.S.C.
57401 «*: 2£3>' and the regulations thereunder, you end any duly
designated enforcement officers and employees of the Environmental
Protection Agency are hereby authorized to enter the above-described
premises at reasonable times during normal operating hours for the
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purpose of conducting an administrative inspection pursuant.
to Sections 206(b) and (c), 20e(a) and 301(a) of the Clean .
Air Act, 42 'J.S.C. 55752S(b) and {c), 7542{a) s.r.4 7601, and
40 C.F.R. 585.601 et, sec. You and any duly designated
enforcement officers and employees of E?A are authorized to
observe activities conducted by CM pursuant to the SEA test
order issued on July 28, 1978, concerning the vehicle
configuration specified in said test order to determine
whether CM is complying with 40 C.F.R Part 8S and with the
test order. The activities that you and the designated
persons are authorized to observe include the following:
vehicle and engine nanufacture, assembly, and storage
procedures; sample test vehicle selection procedures;
and related activities. You and any designated enforcement
officers and employees are authorized to inspect at reasonable
tines during normal operating hours the records, files,
papers, processes, controls and facilities which are
involved in and associated with the above activities and
are maintained, used and generated by CM at that location.
You and any duly designated enforcement officers and ecployees
are authorized -to copy documents and photograph components,
test vehicles and facilities.
The duration of this inspection shall be of such reasonable
length as to enable you and the authorized enforcement officers
*
and employees of EPA satisfactorily to complete such inspection
according to 40 C.F.R. 536.601 et sea.
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-3-
A prompt return of this warrant shall be made to
this court showing that the warrant has bean executed and that
inspection has bean completed within such reasonable tine.
DATED: fU-fc../ 3* , 1978
t-*/ V!»
* . - »
cS^x <*M-J //.
TiJ. ST.VJiS KAGIilSATS
: -. '.:: * ' .
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RSTSR:? or ssr.vics
I hereby certify that a copy of the within warrant was
sarved by presenting a copy of same to Jv^ofgM ire.VQ-Vr c-4 ^f-f-<
an acent of General Motors Corporation (G::) on A'Jf'-'S"*" i ,
j
1973, at the GN Willow Run vehicle assembly plant, Ypsilanti, Mich
s^a 'tf- ~2*^
(Kane of parson making service)
iiciil Titla w i th in th e^b'ni t ed
Scat-zs Environmental Protection Agency)
RETURN
Inspection of the establishment described in this
warrant was completed on rlvqvS'r V _ , 1978.
employee
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inventory of Property Received Pursuant to Administrative
Warranty
GM Assembly Division, V.'illcv; Run Airport, Ypsilanti,
Michigan 4C1S7
1. Vehicle Inspection Secord Form (Chassis No. 2 (yellow)
JXR:;-7i-S4)
2. Xeroxad copies of lists cf VIM Hu.-bers of Cars making up
Batches 4, 5, 6, 7, 8, 9 (7 sheets)
These are the items that EPA has received under
the authority granted it pursuant to the Administrative
Warrant for Entry- and Inspection
Bruce Luncy
Enforcement Officer
11:30 aa 8/4/78
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FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
AFFIDAVIT IN SUPPORT OF
APPLICATION FOR WARRANTS
TO ENTER AND INSPECT
PURSUANT TO THE CLEAN AIR
ACT (42 U.S.C. 57401 e£ ser.)
IN THE MATTER OF t
GENERAL MOTOR CORPORATION
GESEF.AL MOTORS ASSEMBLY DIVISION
WILLOW RUN, AIRPORT
YPSILANTI, MICHIGAN 48197
AND .
VEHICLE EMISSION LABORATORY
GENERAL MOTORS PROVING GROUND
MILFORD, MICHIGAN 48042
Matthew Low being duly sworn upon his oath, according to
law, deposes and says:
1. I an Acting Chief, Manufacturers Programs Branch,
Mobile Source Enforcement Division, Office of^ Enforcement,
United States Environmental Protection Agency (EPA),
Washington, D.C. Z an in charge of a program known as the
Selective Enforcement Audit (SEA) program, which will be
described below. I report to the Director of the Mobile
Source Enforcement Division, who is under the Deputy Assistant
Administrator for Mobile Source and Noise Enforcement; in
turn, he is under the Assistant Administrator for Enforcement,
who reports to the Administrator of the Environmental
Protection Agency.
2. This affidavit is made in support of an application
for Administrative warrants to enter; observe a Selective
Enforcenerit Audit (SEA) test on the configuration of motor
vehicles manufactured by the General Motors Corporation (CM)
of engine family 840B2 and engine code 2, with 4000-pound
inertia weight, A-3 transmission and 2.56 rear axle ratio as
specified in a SEA test order issued on July 28, 1978, by
the Assistant Administrator for Enforcement of EPA; and
inspect GM's records, files, papers, processes, controls,
and facilities which are involved in and associated with
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-2-
the manufacture and testing of said configuration pursuant
to said test order at the preaises of the GM Willow Run vehicle
assembly plant at. Ypsilanti, Michigan, and the GM vehicle
eaission laboratory at Hilford, Michigan* pursuant to
Sections 206(b) and (c), 208(a) and 301(a) of the Clean Air
Act, 42 O.S.C. S7525(b) and (c), 7S42(a), and 7601{a), and 40
C.F.R. 586.601 «t «£., 41 Fed. Reg. 31472 (July 23, 1976).
3. Title ZZ of the Clean Air Act, 42 O.S.C. S57401,
7520-7551, establishes the Federal program for control of
aotor vehicle emissions. Eaission standards for motor
vehicles are prescribed pursuant to Section 202 of the Act,
42 O.S.C. S7521. Section 206(a), 42 O.S.C. S7S25(a), authorizes
the EPA Administrator to require new motor vehicles to be
tested to determine whether such vehicles conform with the
emission standards and other regulations prescribed pursuant
to Section 202. Such standards are applicable for the vehicles'
useful life (5 years or 50,000 miles). The vehicles that are
tested during this certification process are usually pre-productior
prototypes. Zn the certification process the manufacturer
submits applications for certification, each covering one or more
engine families and setting forth the corresponding technical
descriptions, specifications, and operating parameters for
each family covered. An engine family is made up of a group **
of vehicle models, known as "configurations", with the same
basic engine and emission control system specifications. One
or more prototypes, known as durability vehicles, from each
engine family are subjected to testing over 50,000 miles to
determine deterioration in emissions performance for that
engine family. Thereafter, prototypes, known as.emission-data
vehicles, of individual configurations within a given family
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-3-
are subjected to a 4000-mile test. The emission levels of
the emission-data vehicles during their useful life are determined
by applying the "deterioration factor* calculated from the
50,000-mile test results for that engine family to the emission
data obtained after 4000 ailes of operation. Zf it is demonstrated
that the prototype vehicles of the various configurations within
an engine family comply with the emission standards over their
useful life and with other regulations, the Administrator issues
to the manufacturer a certificate of conformity for the particular
engine family described in the application. '
4. To determine whether new motor vehicles actually being
manufactured, as distinguished from pre-production prototypes,
neet the regulations, including emission levels, with respect to
which the certificate of conformity was issued. Section 20fi(b),
42 O.S.C. S7525(b), authorizes the Administrator to test and to
require the testing of new production vehicles. Zn addition, to
enforce Section 206, Section 206(c) provides that officers or
employees designated by the Administrator may enter a manufacturer's
plant to conduct tests of vehicles and to inspect records, files,
papers, processes, controls, and facilities. Section 208(a), 42
O.S.C. 57542(a), further requires manufactuers to establish and
maintain such records, make such reports, and provide such
information as the Administrator may reasonably require to enable
bia to determine whether the manufacturer has acted or is acting
in compliance with Title ZZ of the Act and the regulations
promulgated thereunder and to permit duly-designated EPA officers
or employees to have access to and copy such records. Section
301(aJ, 42 O.S.C. $7601(a), authorizes the Administrator to
prescribe such regulations as are necessary to carry out his
functions under the Act and to delegate to any EPA officer or
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employee such of his powers and duties under the Act, except the
n-
making of regulations, as he may deem necessary, of
Based upon the authority of Section 206, 208 and 301, 42 U.S.C,
SS7525, 7542 and 7601, EPA has established a program for spot
assenbly-line testing known as the Selective Enforcement Audit
(SEA) prog ran. Regulations concerning the SEA program are set
forth at 40 C.F.R. $86.601 et Sjea. , 41 Fed. Reg. 31472 (July 28,
1976).
5. Under the SEA program, the manufacturer can be required
to test a representative sample of production vehicles from a
designated motor vehicle configuration to determine whether the
configuration is being manufactured to conform to the applicable
emission requirements. The SEA regulations prescribe specific
procedures by which SEA testing is to be conducted, including
procedures for vehicle selection, preparation and pre-conditioning,
for dynamometer operation to simulate driving conditions and for
collection of vehicle exhaust gas samples for analysis. A SEA
is initiated by the issuance of a test order to a manufacturer
requiring that manufacturer to conduct emissions testing and
specifying, among other items, the motor vehicle configuration
to be tested, the plant or storage facility from which vehicles
must be selected and the procedures to be employed in selecting
sample vehicles for SEA testing. Section 206 (b) of the Act,
^
42 U.S.C. S7525(b), authorizes the Administrator to issue a
test order. Pursuant to Section 301 (a) of the Clean Air Act,
42 U.S.C. $7601(8), the Administrator has delegated the authority
to conduct testing through the issuance of test orders to EPA's
Assistant Administrator for Enforcement along with the further
authority to redelegate this power to the Deputy Assistant
Administrator for Mobile Source and Noise Enforcement, and in
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-5-
turn to redelegate to the Director, Mobile Source Enforcement
Division. EPA Delegation 7-30, Hovember 10, 1977. Such re-
delegation to the Deputy Assistant Administrator was made on
November 14, 1977. .
6. Under Sections 206(b) and (c), 208(a) and 301(a) of
the Clean Air Act, 42 D.S.C. $S7525(b) and (c), 7542(a) and
7601(a), and 40 C.P.R. $86.601 ejt se£., duly designated EPA
enforcement officers and employees are authorized under the
SEA program to enter the manufacturers' facilities at reasonable
times during normal working hours for the purpose of observing
activity relating to the SEA testing and inspecting records,
files, papers, processes, controls and facilities to determine if
the manufacturer is acting in compliance with regulations and the
test order. Ordinarily, the EPA-monitoring includes observation
of vehicle and engine manufacture, assembly and storage procedures
sample test vehicle selection procedures; sample test vehicle
preparation, pre-conditioning, mileage accumulation, emi-ssion test
maintenance and soaking procedures, as well as the calibration of t
i
equipment; and related activities. Commonly, EPA inspects
records, files, papers, processes, controls, and facilities which
are involved in and associated with the above activities and are
maintained, used or generated by the manufacturer at the locations
where test vehicle assembly, SEA test vehicle selection and
testing take place. Also, EPA is authorized to copy documents,
photograph components, test vehicles and facilities and obtain
reasonable assistance from facility personnel in executing its
functions under the SEA program. EPA attempts to enter and
conduct these inspection-related activities in conjunction with
each SEA test order for the purpose of monitoring* the activity of
the manufacturer undertaken pursuant to the test order to ensure
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-6-
that such activity conforms to the requirements of the test
order -and the SEA regulations.
7. The manufacturer is notified by the test order of
the configuration (or alternate) to be tested, the location
from which test vehicles will be selected, when the testing
is to begin and when E?A officers and employees will be
present. The date of completion of the test, and therefore
the duration of the EPA inspection, is not specified at the
outset because it is not possible to do so. SEA selection
aad testing normally take up to two weeks. If the manufacturer
elects to retest vehicles in an attempt to avoid failing an
audit, or if upon failing an audit a re-audit is necessary,
audit activity under the test order Day continue for a
month. The Clean Air Act Selective Enforcement Audit
regulations, 40 C.P.R. $86.601 et sec., 41 Fed. Reg. 31472
(July 28, 1976), and the test order define the scope and
purpose of.the audit. The test order identifies the EPA
' *
enforcement officers and employees who have been designated
to enter,, observe activities, and inspect records, files,
papers, processes, controls and facilities used in or
associated with the audit.
8. Under the regulations and the Clean Air Act, a SEA
test order may be issued to any manufacturer at any time for
any motor vehicle configuration being manufactured. When a
SEA test order provides less than 24 hours notice to the
manufacturer, the SEA test order must be authorized in
writing by the EPA Assistant Administrator for Enforcement.
9. The frequency with which SEA test orders are issued
to any given manufacturer is generally based on that manufacturer's
proportionate share of total vehicle production. A manufacturer's
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-7-
projected sales volume is used as the basis for establishing
the preliminary number cf SEA test orders to which that
manufacturer nay be subject annually. A higher production
volume requires more audits for sufficient review of the
manufacturer's production. The maximum number of SEA test
orders that may issue to a given manufacturer during a given
model year is preliminarily set at the number obtained by
dividing that manufacturer's total projected sales for that
model year by 300,000 and rounding to the nearest whole
number. 40 C.F.R. $86.603(f). Any manufacturer with
projected sales of less than 150,000 may be subject to an
initial annual licit ofi one SEA test order. One additional
SEA test order may issue to a manufacturer for each configuration
failing an audit and, when the annual limit figure, inceased
by these additional test orders, has been met, for each
configuration for which evidence exists indicating noncompliance.
Because the agency's resources are limited, EPA may undertake
fewer SEA's than are authorized by its regulations.
10. Within these annual limits on the number of test
orders EPA may issue to each manufacturer, EPA employs a
systematic process, as dispussed .below, for .choosing which
configuration of which manufacturer to subject to an audit.
Initially, EPA seeks to issue test orders proportionately among
manufacturers according to their respective annual projected
sales and to distribute those test orders evenly over the course
of a model year. This process then employs three primary sources of
information, assembly-line test data, projected sales volume, and
certification data, as bases for assigning points to rank
configurations for the purpose of determining which configuratin
*
would be most appropriate for an audit at a given time. Once
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-8-
configurations are ranked, the process also considers other,
non-quantifiable factors in reaching an ultimate decision about
which configuration to audit.
11. Where data being evaluated by EPA from any of these
three sources pertains to individual configurations, points are
assigned to the respective individual configurations according to
the guidelines of the ranking system. If the data evaluated
pertains to engine families, points based on a engine family's
data will be assigned for ranking purposes to an individual
configuration within the engine family. The 'configuration
receiving the engine family's points will be identified according
to two factors. To begin with, its production rate must be high
enough to enable sample test vehicles to be selected for testing
in an expeditious manner. Once that determination has been made,
its actual physical characteristics (such as engine code, inertia
weight, type of transmission, or rear-axle ratio) which distinguish
It from other configurations within the engine family must make
it the configuration most likely to produce the highest level of
emissions of the configurations in that family.
12. Before ranking configurations, SEA's systematic
configuration selection process applies the general objective
that each manufacturer should receive at. least one half of
its annual limit of audits as computed froa its projected _
sales during the model year, with those audits distributed
over the model year, to ensure proper review of the total
production of each manufacturer. Thus under the plan
described below, a configuration of a particular manufacturer
may replace another configuration of any manufacturer which
otherwise would have been chosen for an audit. This result
.
occurs whenever issuing the test order to the manufacturer
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-9-
of the replaced configuration would have subjected that
manufacturer to a disproportionate number of audits as of
that tiae in the model year.
13. . The most important factor considered quantitatively
by EPA is a configuration's emissions data which have been
generated by a manufacturer's own quarterly assembly-line
testing and submitted to EPA. The data allows EPA to
evaluate both the rate at which production vehicles coming
off the assembly line fail to meet an emission standard
for a given pollutant and the mean emission value measured
froa assembly-line vehicles as compared to a pollutant's
emission standard. Points due to failure rates .are assigned
to a vehicle configuration as follows:
Failure Rate
Range Points
0-10% 0
11-20% 5
21-30% 15
31-40% 30
40% and above SO
Points according to the configuration's mean emission value
compared (to the emission standard (std) are assigned as follows:
Range Points
Mean value is between 0.9 5
of the std and th* std
Mean value is greater than 15
the std but less than or
equal to 1.1 of the std
Mean value is greater than 30
1.1 of the std
Application of the point total derived from these calculations
will take into account the reliability that can be attributed
to the data submitted by a manufacturer. For example, EPA
will assess the number of vehicles tested in order to
determine the failure rate or mean emission value. Data
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-10-
rellability also depends upon the extent to which a discrepancy
is found in a comparison between past SEA data pertaining to
the configuration in question and the manufacturer's most
recently submitted internal assembly-line data. Furthermore/
evaluation of this point total also will consider both
whether a manufacturer has failed to provide test data for
one or more configurations in production at the time the
assembly-line data was generated and whether any "running
changes" incorporated into the manufacturer of a configuration
since that tine may be expected to cause the emissions level
of the configuration to exceed standards for a pollutant.
14. The next most important factor in this point
ranking system is the configuration's (or engine family'*)
*
projected annual sales figure as provided by the manufacturer
in its application for certification. Points based upon
projected sales are assigned as follows:
Annual Projected Sales Points
0-20,000 0
20,000-50,000 10
50,000-100,000 20
100,000 and above 30
This factor focuses on higher-production models and tends to
assure through SEA review that a high percentage of vehicles
produced complies with the emission standards.
15. Finally, certification data generated from prototype ~
testing and regarding configurations currently in production
are examined; that is, EPA reviews the pertinent certification
data on configurations being manufactured either according to
the manufacturer's original application for certification or
according to its latest running change application for an amended
certificate of conformity. If the configuration'-s emission
performance level based on that data is within 10% of the emission
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-11- : '
standard for a given pollutant, 15 points are assigned to that
configuration. Application of this factor may be adjusted where
analysis by EPA's certification group indicates that certification
test data may not be indicative of whether production vehicles of
that configuration are likely to meet emission requirements. The
focus of this factor is en vehicles that have demonstrated only
marginal compliance during the certification or running change
approval process.
16. Aside from these quantitative factors and the
objective of distributing audits among manufacturers
throughout the model year, in choosing which configuration
of which manufacturer to audit EPA takes into account the
-1
location of the manufacturer's assembly plant and test
' i facilities. This factor generally is given significant
consideration if these establishments are located overseas
or are otherwise geographically removed from the Midwestern
United States. Most manufacturing and testing establishments
are located in the area, and therefore most audit activity
can be expected to take place there. EPA also considers
i
whether a configuration is being manufactured at a sufficiently
high rate to allow sample vehicles to be sele'cted expeditiously
. for testing. Information on current production rates of
configurations might not be requested from a manufacturer
so as to avoid suggesting to manufacturers which configur-
ations may be subject to an imminent test order. Thus, a
test order can designate an alternate configuration of that
manufacturer for testing, chosen according .to the normal
systematic process described above subject to the constraints
regarding location and production rate, in the event that the
primary configuration is unavailable for testing.
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-12-
17. Automobile manufacturers for the cost part have
centralized their testing facilities in eastern Michigan.
Consequently, they generally have expressed a preference
that vehicle selection for any audit of any configuration
produced in that area and others take place at a plant in
that area. Pursuant to 40 C.F.R. $86.603(d), EPA complies
with these indicated preferences when specifying locations
for vehicle selection pursuant to a test order unless the
Administrator determines that information exists indicating
noncompliance at other plants. Zf a manufacturer does not
indicate a preferred plant for a configuration being
i audited, the test order vill specify that test vehicle
selection be conducted at the location closest to the
' manufacturer's testing facility at which a sufficient number
of vehicles are available from which a sample representative
of the configuration can be chosen expeditiously, unless it
is determined that evidence exists indicating non-
compliance at another plant. Since the goals of the EPA'
program can be accomplished with a relatively high percentage
of audits testing vehicles selected from locations in eastern
Michigan, « relatively high percentage of vehicle selection
for SEA's takes place in that area. Once a test order has
, ' been issued covering a specific manufacturer, configuration _
* il "
and facility for sample test vehicle selection, EPA sends a
team of enforcement officers to the manufacturer's facilities
where selection and testing take place for the purpose of
monitoring the manufacturer's activity performed in response
to the test order.
18. Experience with the administration of the SEA program
'
has produced indications that providing a manfacturer with advance
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-13- :
notice of an intent to require SEA testing before EPA enforcement
officers can gain access to the manufacturer's facilities pursuant
to that test order can give the manufacturer an opportunity to
alter its production processes. The manufacturer thereby can
bias production of a vehicle configuration so that sample vehicles
elected for SEA testing will not provide representative data
which would enable EPA to review accurately the manufacturer's
production of that configuration on the whole. Such
notice would occur if EPA enforcement officers requested
permission to enter a facility to monitor activity related
to the SEA, and permission to enter were refused, before
a warrant authorizing that entry were obtained.
19. On the basis of 1978 model year projected sales
alone General Motors may be subject to 20 test orders during
the model year and has been subject to 10 orders thus. far.
Ford may receive 11 test orders on the basis of projected
sales and has been issued 8. Chrysler may receive 5 test
orders based on projected sales and has received 6, since
one of its configurations -failed an audit. See 40 C.F.A.
S86.603(f). American Motors may be issued 1 test order
based on projected sales and has not yet received any. Four
European and three Japanese auto manufacturers have been
audited during the current model year.
20. GM is a manufacturer of automobiles and operates
facilities devoted to that purpose at its Willow Run vehicle assea
. plant in Ypsilanti, Michigan. GM also operates emission
testing facilities at its vehicle emissions testing laboratory
ia Milford, Michigan, where GM usually ships cars for
SEA testing after such cars have been selected at a vehicle
assembly plant as SEA sample test vehicles. GM produces
hundreds of different configurations during the model year.
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-14-
21. CM is still eligible to receive 10 SEA test orders
for model year 1978 configurations. The configuration specified
in the SEA test order issued on July 28, 1978, has been chosen
as the subject for SEA testing because of the configurations
currently under production and available for selection it has
accumulated the greatest number of points under EPA's systematic
process for choosing configurations to audit and because no
non-quantitative factors indicate that another configuration is
more appropriate for auditing. Assembly-line test data submitted
by GH which, according to our analysis, pertains to its engine
code 2 configuration of its 840B2 engine family with 4000-pound
inertia weight, A-3 transmission and 2.56 rear axle ratio shows a
56% failure rate of vehicles tested with respect to the emission
standard for nitrous oxides (NOx), giving that configuration
50 points for ranking purposes. The mean emission value for NOx
derived from this assembly-line testing (1.99 grams/mile) falls
within 0.9 of the NOx emission standard {2.J3Q grams/mile),
contributing another 5 points. The projected annual sales
for this configuration is 63,741, giving the configuration
an additional 20 points. Certification testing conducted for
this cqnfiguration produced data which showed the prototype
CO emissions level (15 gram/mile) to be within 10% of the CO
emission standard (also 15.0 grams/mile), thereby assigning the
configuration 15 more points. The configuration's point total
of 90 is the highest for any configuration remaining in production
long enough and at a rate high enough to allow for expeditious
sample test vehicle selection pursuant to the SEA regulations.
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-15-
22. The document, which_is attached and incorporated
by"reference, and sets forth the SEA test order for this
configuration will be delivered to CM by an EPA enforcement
officer at the same time the designated officers and employees
appear at GM's vehicle assembly facilities in Tpsilanti,
Michigan, to begin monitoring GM's activities performed
pursuant to the SEA test order. The entry, observation and
inspection there and at GM's vehicle emission testing
laboratory in Hilford, Michigan will be consistent in
purpose, scope, location and timing with the Clean Air Act,
this Court's administrative warrants, EPA regulations, the
test order and the program described in this affidavit.
MATTHEW LOW
Sworn and subscribed before m«
this * day of , 1978
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ATTACSMS!T III
NEUTRAL INSPECTION SCHEME FOR AETOSOL FILLERS
1. The rule published by EPA on March 17, 1978 (43 FR 11318) bans
processing of fully halogenated chlorofluoralkanes, or CFC's,
for aerosol propellant uses after December 15, 1978, except for
certain essential uses. Such processing would be done by busi-
nesses known as aerosol fillers.
2. Only aerosol fillers who have bought CFC's since October 15, -
1978 or who are otherwise known to be in the position to fill
aerosols with CFC's after DecerJber IS, 1978 will be candidates
for inspection. Such fillers may be identified by inspections
of the records of CFC manufacturers, by information frcm the
Consumer Product Safety Conmission (CPSC), or by other means.
3. Such candidates for inspection will be ranked according to the
relative quantity of CFC's estimated to have been received after
December IS, 1978. Fillers estimated to have received more CFC's
will be assigned higher priorities for inspection. Such esti-
mates shall be based on the records of quantities distributed
by CFC manufacturers. If the amount of CFC's received by a
candidate for inspection is unknown, then that filler will be
assigned a ranking in the middle of the ranked list.
4. A ranked list of candidates for inspection will be sent to each
Regional office. Such lists may be amended later by information
frcm the CPSC or other sources.
5. The total number of aerosol fillers to be inspected in FY 79
by each Regional Office will be determined first. Then the
ranked list will be used to identify the particular fillers to
be inspected. The total number to be inspected in each Region
will be inspected, and so that an approximately equal proportion
of the fillers in each Region will be inspected.
6. The sequence of inspection shall be determined by the rank order
of the list, except that this sequence may be adjusted to conserve
Agency resources (such as by combining several inspections in one
trip.)
7. This neutral inspection scheme will be modified after the annual
reports required by the CFC rule to be submitted by March 31/
1980 have been analyzed.
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entering into nearby waterways Including waters of the
United States and its tributaries, as well as posing a
threat to the environment and the public health and welfare
of the United States.
a. The reported death of a 19 year old
truck driver at the CLAW (EPA, Inc.) open pits on July 25,
1978 while he was discharging waste into an open pit at th«
facility. The death was possibly caused by his inhalation
of toxic fumes caused by a reaction of mixing incoopatibl*
toxic wastes in the open pit. Two eye witnesses to the
death of the driver reported the presence of choking funes
Ila the area when they opened the'doors to their truck to
assist the driver who died. .They also reported that his
truck was parked at the edge of the open pit with the doors
open at the tiae of death. Subsequent laboratory.tests of
waste taken from the pits have shown waste materials were
present in the pit, which,when mixed with the spent caustic
being discharged from the driver's truck could have caused
the death. Final autopsy reports are still pending. It is
allegedly reported that CLAW facility officials directed the
driver to take and discharge his wastes to the truck rasp on
the edge of an open pit. Discharging toxic waste into an
open pit at the edge of a pit is not a safe, desirable, or
acceptable practice since toxic chamical. reactions are very
probable and can result in the death of anyone nearby.
5. Section 308 of the.Federal Water Pollution
Control Act, 33 USC 1318,'and section 3007 of the Resourca
*
Conservation and Recovery Act of 1976, (42 USC 6927), pro-
viding for entry, inspection, record inspection and copying
and sampling are reasonable, in the public interest and
accessary in order 'to" carry out the provisions of these
Acts, which Acts are designed to protect the environment, as
-3-
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natter ic is reasonable Co assume Che need for inspection
based on the information and observations sec out in paragraph
4 above and in the public interest.
C
E£ WARD C .~tl
CK1LMICAL ENGINEER
UNITED STATES
PROTECTION AGENCY
Subscribed and svorn to before me
At Baton Rouge, State of Louisiana,
this /o of f>.. ^tJ- 1978.
-4-
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C, 20460
I iWl ' OFFICE OF
LE,OAL COUNSEL AND ENFORCEMENT
MEMORANDUM
SUBJECT: Contacts with Defendants and "Potential
Defendants in Enforcement Litigation
TO: Addressees
FROM: William A. Sullivan,
Enforcement Counsel
Most of the Agency's staff is aware of the need to
consult with the Department of Justice (DOJ) before contacting
defendants in enforcement litigation or potential defendants
in cases referred to Justice for filing. Z want to stress the
importance of giving DOJ an opportunity to participate in any
meetings with such persons or firms to review their compliance
status. Failure to observe proper practice in this regard can
seriously undermine the Department's ability to effectively
represent EPA and ultimately diminish the prospects for satis-
factory enforcement of environmental laws.
Headquarters and regional enforcement personnel snould
already be aware of the importance of including Justice in
such discussions when they r .*e initiated by EPA, and of giving
the Department notice of and opportunity to attend meetings
requested by potential defendants or their counsel. Justice's
caseload may not always permit them to send a representative,
in which case EPA staff should thoroughly coordinate the
ground rules of the contact with DOJ in advance. Follow-up
information should be provided to the Department's attorneys
promptly after the conclusion of any meetings. This is the
procedure Z shall expect to be followed at all times.
Z also want to urge enforcement staff to caution their
client* program offices and others within the Agency about
the sensitivity of contacts with persons or firms that have
been named in cases referred to Justice for filing. There
are many natters unrelated to an enforcement action proces-
sing of grants, development of rules, etc. in which a party
nay be interested and which may be discussed without counsel
present. Care should be taken, however, to determine the
purpose(s) for which meetings are sought by defendants and
potential defendants so that appropriate arrangements can be
«aade. Zf Batters related to a pending case are raised by such
arsons during the course of a meeting arranged for other
purposes, the discussion should be interrupted and continued
only after consulation with in-house enforcement counsel and
DOJ.
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- 2 -
Your cooperation will assure that litigation strategy
is not compromised by inappropriate discussions, and can avoid
embarrassment from last minute cancellation or rescheduling .
of meetings. Zf you have questions about whether a particular
person, firm, or state or local government is a defendant in
enforcement litigation or is a potential defendant in a case
which has been referred to the Department of Justice, please
contact Jonathan Libber of ay staff at 426-7503*
Addressees: John Daniel, Chief of Staff ;
Assistant Administrators
Enforcement Office Directors
Regional Administrators
Regional Enforcement Division Directors
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7
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
i . WASHINGTON, D.C. 20460
DEC i 0 !33I
ernes or
GENERAL. COUNSEL.
MEMORANDUM
SUBJECT: Ex Parte Rules Covering Communications
on Issues Which are the Subject of Formal
Adjudicatory Hearings
FROM: Robert M. Perry &***' "**- y^-~*<.
General Counsel (A-130) v
TO: John E. Daniel
Chief of Staff
Office of the Administrator (A-100)
The Office of General Counsel has been asked to advise your
office on the handling of ex parte communications on issues
arising in formal Agency adjudications. This question is irapor-
.ant because ex parte communications may occur when, for example,
a party to pending or ongoing litigation seeks a speedier, more
direct resolution of the litigation than is offered by the formal
adjudication. In some cases, telephone calls, letters or even
casual remarks relating to a substantive issue in litigation can
constitute an improper ex parte communication. In general, such
communications concerning the merits of a proceeding create the
risk that an adjudicatory decision may be set aside by a reviewing
court. However, the ex parte rules do not preclude the Administrator
from engaging in discussions with persons regulated by .EPA
merely because those persons happen to be involved in a formal
adjudication.
Accordingly, we have prepared this memorandum to guide your
staff (1) in recognizing and avoiding improper ex parte communi-
cations and (2) in taking remedial steps if an Improper ex parte
communication occurs. Sections I-III of this memorandum define ex
arte contacts and describe the rules governing them. Section
V describes measures for minimizing the adverse legal impact of
such communications when they occur.
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- 2 -
I. Why do we have rules about ex parte contacts, and to what
do they apply?
The Agency conducts formal adjudicatory hearings in a number
of areas, including:
0 Hearings to decide whether pesticide registrations
should be denied, cancelled, suspended, or modified,
under Section 6 of the Federal Insecticide, Fungicide,
and Rodenticide Act, as amended (7 U.S.C. S136d).
0 Hearings to decide whether to assess any civil penalty
under Section 14(a) of the Federal Insecticide, Fungicide,
and Rodenticide Act, as amended (7 U.S.C. $1361(a)).
0 Hearings to decide whether to assess any civil penalty
under Section 211 of the Clean Air Act, as amended (42
U.S.C. §7545).
0 Hearings to decide whether to assess any civil penalty
or to revoke or suspend any permit issued under Section
105 (a) and (f) of the Marine Protection, Research,
and Sanctuaries Act, as amended (33 U.S.C. $1418(c))
0 Hearings on the issuance of a compliance order or the
assessment of any civil penalty conducted under Section
3008 of the Solid Waste Disposal Act, as amended (42
U.S.C. $6928).
0 Hearings to decide whether to assess any civil penalty
under Section 16(a) of the Toxic Substances Control Act
(15 U.S.C. S2615(a)).
0 Hearings conducted in connection with the termination
of a hazardous waste permit under the Resource Conser-
vation Recovery Act. (42 U.S.C. $6928(b)).
0 Hearings to challenge the issuance of any individual
National Pollutant Discharge Elimination System permit
for a point source discharge under Section 402 of the
Clean Water Act. (33 U.S.C. $1342).
0 Hearings to determine data compensation amounts under
the Federal Insecticide, Fungicide, and Rodenticide Act,
as amended. (7 U.S.C. $136(d)).
Under the Administrative Procedure Act (APA), (5 U.S.C. §551 et
seq.), the decisions which result from these adjudicatory hearings
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-3-
must be based solely on the formal record compiled during the
proceeding, i.e., the pleadings, transcripts, exhibits, and
briefs. In order to safeguard the integrity of the adjudicatbry
process, the Administrative Procedure Act prohibits all extra-
record communications relevant to the merits of an adjudicatory
proceeding between Agency decision-makers and interested persons
inside or outside the Agency. 5 O.S.C. 554(d), 557(d)(l). A
decision made in a formal adjudication may also be subject to legal
challenge if there is reason to think that it was based on any
material fact which is not a part of the formal record. 5 O.S.C.
554(d)(l), 556(e).- In recognition of these statutory provisions,
the various Agency regulations concerning hearing procedures
(see 40 CFR §§22.01, 124.78 and 164.7) and pertinent judicial
precedent establish rules dealing with "ex parte" communications
made to or by persons responsible for malcTng decisions in adjudi-
catory hearings. The remainder .of this memorandum will discuss
what "ex parte" communications are, and the rules that apply to
them.
II. What is an ex parte communication?
One definition appears in the APA, 5 O.S.C. §551(14):
"Ex parte communications means an oral
or written communication not on the public
record with respect to which reasonably prior
notice to all parties is not given, but it
shall not include requests for status
reports. ..."
This definition is somewhat cryptic and incomplete, however. A
more useful working definition is:
"Ex parte communication" means any
communication (written or oral) concerning the
merits of an ongoing formal adjudicatory pro-
ceeding, between any decision-maker and either
(A) any interested person outside the Agency,
or (B) any member of the Agency trial staff,
if^ any of the parties to the hearing did not
receive prior written notice that the communi-
cation would be made or were not invited to be
present and participate in the communication.^/
An ex parte communication could take the form of a letter, telephone
conversation, meeting, or other informal discussion. (Of course,
I/This definition is in large part a paraphrase of the definition
In 40 CFR §124.78.
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pleadings, testimony, and the like presented or filed according to (
the hearing rules are not covered.)
III. What are the rules governing ex parte communications? |
*:
In brief, the APA and related EPA regulations state that ex
parte communications concerning the merits of a proceeding are
improper but also recognize that they may nonetheless occur and
provide mechanisms designed to counteract their possible influence
on decision-making.
A. What kinds of communications concern
"the merits" of a hearing?
As indicated above, the prohibition against ex parte contacts
covers communications regarding the merits of an ongoing adjudi-
catory proceeding. This restriction is to be construed broadly
and covers not just communications regarding facts in issue, but
any statement which could affect the Agency's decision on the
merits. Inquiries about scheduling and other procedural matters
(such as requests for status reports) may properly be made ex
parte. (The Administrator has traditionally referred such inquiries
to the appropriate trial staff for a response.) In doubtful cases,
the prudent course is for the Agency decision-maker to treat the
communication as one which may concern the case's merits.
B. What communications within the Agency are prohibited?
In almost every formal adjudication conducted by EPA,^/
one of the parties is the Agency trial staff. Typically, the
order by which the Administrator (or his delegate) initiates the
hearing contains a designation of the Agency personnel who will
make up the Agency trial staff. That order often also designates
those persons who will serve as adjudicators in the proceeding
(typically the Administrator or the Regional Administrator, the
Judicial Officer, an Administrative Law Judge, and sometimes
others.)
Members of the Agency trial staff are forbidden from
communicating with the Administrator (or other designated adjudi-.
cators) on an ex parte basis concerning the merits of the proceeding.
Although the Administrator theoretically can consult with other
27There is one exception:hearings under FIFRA S3(c)(l)(D) to
determine data compensation payment amounts are disputes between
private parties which are decided by EPA. The Agency is not a
party in these cases.
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-5-
Agency personnel who are not (and have not been) involved in
trial staff functions (and who do not represent other interested
persons), no substantive consultation which may concern facts at
issue should occur unless all parties are notified and given an
opportunity to participate. Otherwise, there exists a substantial
risk that the Administrator's decision might be based on evidence
that has not properly been made a part of the record of the
proceeding.
C. What communications with persons outside the Agency
are prohibited?
The APA also prohibits e_x parte communications between the
Agency adjudicators and "interested persons" outside the Agency.
The legislative history says that the term
"is intended to be a wide, inclusive term. . . .
The interest need not be monetary, nor need a
person be a party to, or intervenor in, the
agency proceeding to come under' this section.
The term includes, but is not limited to,
parties, competitors, public officials, and
non-profit or public interest organizations
and associations with a special interest in
the matter regulated."
Government in the Sunshine Act, Committee on Goverment Operations,
H.R. REP No. 94-880, 94th Cong., 2d Sess. (1976), at 19-20,
Source Book: Legislative History, Texts, and other Documents,
Committees on Government Operations, U.S. Senate and House of
Representatives, 530-531. With certain exceptions,^/ it seems
logical to treat the very fact of a communication concerning the
merits of an adjudicatory proceeding as evidence that the person
making it is "interested." Certainly anyone whose communication
seems designed to influence the outcome of the case (or the
timing of rulings) should be treated as an interested person.
Again, where there is doubt about a communication's status, it
should be treated as one by an interested person.
As noted earlier, the ejc parte rules prohibit not only
communications by interested persons to Agency adjudicators, but
also communications by Agency adjudicators to interested persons.
This could present problems in situations where the adjudicator
does not know whether the persons to whom he or she is speaking
_3/ Routine inquiries from the news media, or from persons whose
interest in the case is purely academic, normally would fall
outside the rule's coverage.
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-6-
are "interested." Moreover/ as in the case of communications
with non-interested Agency personnel, the adjudicator should
avoid substantive communications with any person outside the
Agency (whether interested or not) concerning facts at issue
in the proceeding, unless all parties are notified and given an
opportunity to participate. Finally, discussion by the adjudi-
cator of the merits of an ongoing proceeding may lead people to
assume the matter has been pre-judged even if technically there
is no violation of the ex parte rules.
IV. How can ex parte communications be minimized, and what
should be done if they occur?
It is probably impossible to prevent entirely the occurrence
of improper e_x parte communications. In a discussion of general
matters between industry representatives and the Administrator,
for instance, the conversation may inadvertently move to a matter
which is involved in an adjudication. The Administrator must deal
with a wide variety of topics, most of which are not covered by
the ex. parte rules, and should not feel constrained to avoid
discussions with persons who are regulated by EPA merely because
those persons also may be involved in some formal adjudication.
But the ex parte doctrines must be kept in mind if such discussions
are to be held.
There are two kinds of measures preventive and curative
that should be taken by your office to lessen the likelihood of
problems. Preventive measures should include:
(1) An awareness on the part of the Administrator and her
immediate staff of the importance of the principles
discussed in this memorandum;
(2) A system designed to keep the staff aware of the
adjudicatory proceedings that are in process, and the
parties to and issues in those proceedings;
(3) Attention to potential ex parte problems when scheduling
meetings, drafting speeches, and screening telephone
calls, and reminders by the staff of topics that should
be avoided; and
(4) Similar attention to the problem by those who handle
incoming and outgoing written correspondence; and
(5) For "ex parte* purposes, members of the Administrator's
personal staff should consider themselves to be part
of the decision-making team headed by the Administrator.
Otherwise, serious practical and legal problems could
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-7-
arise in insulating decision-makers from staff members
who have received or initiated ex parte communications.
The principal curative measure, once an improper ex parte
communication has occurred and has been recognized as such, is to
make the content and circumstances of 'the communication a part of
the official record of the proceeding and afford the parties a
chance to respond on the record. (If the communication was oral,
a written memorandum of it must be prepared.) The written communi-
cation (or the memorandum summarizing the oral communication)
must be.forwarded to the Office of the Hearing Clerk, A-110, with
a request that copies of it be furnished to all parties. This
procedure is designed to nullify the "secret" nature of the
communication and thereby preserve the fairness and integrity
of the decision-making process.
In cases where an interested party outside the Agency has
knowingly and egregiously violated the ex parte rules, the APA
permits the Administrator or other adjudicator to render a deci-
sion adverse to that person.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, DZ 25460
OFFICE OF
UCCAL. AND CNFOnCEMCNT COUNSEL.
MEMORANDUM
SUBJECT:
FROM:
TO:
Draft DOJ/EPA Litigation Procedures
Robert M. Perry
Associate Administrator for Legal
Counsel and General Counsel
Associate Adminis-trator
Assistant Adninistra-tors
Regional Administra-to^e
.Office Directors
Regional Counsels
nd Enforcement
In furtherance of the Administrator's policy to strengthen
and improve this Agency's enforcement capability, particularly
with regard to litigation, a meeting with the Department of
Justice to discuss these matters occurred yesterday at Quantico,
Virginia. I am pleased to report tha'i it was highly productive
and successful. Attached is a surrnary of the matters discussed,
the recommendations produced and a process that will strengthen
our enforcement efforts. Each of you has a critical role to
insure the success of this vital endeavor, and I look forward
to discussing it with you ahd receiving any comments you may
have.
Attachment
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ENFORCEMENT GOALS AND OBJECTIVES
Of .
C77JCS C? LEGAL AND ENFORCEMENT COUNS:
J. S. ENVIRONMENTAL PROTECTION AGENCY
1. The role of enforcement is to support and advance
the regulatory policies of EPA through use of all
available enforcement means; to insure compliance
with applicable laws and regulations; to deter
unlawful conduct and to remove any incentive to
non-compliance.
2. The regulated community is entitled to fair notice
of EPA's policies and the requirements they impose
on the regulated community. All members of the
regulated community should expect that they will be
treated in a consistent, fair manner which
removes any- corapeti-tive-advantage-gained--by-non=- ^
compliance.
3. EPA is responsible for establishing regulatory policies
and enforcement goals, priorities and procedures to
effectuate its policy initiatives. These policies
and priorities are what guide the Department of Justice
in its role as EPA's litigation counsel. This litiga-
tion will be conducted pursuant to the Qu:-r.tico Guide-
lines for Enforcement Litigation developed between
the Environmental Protection Agency and the Department
of Justice. - -
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QUAN7ICO GUIDELINES FOP. ENFORCEMENT LITIGATIOK
1. GOALS AND PURPOSES
?or SPA
To achieve compliance with applicable law
through effective enforcement.
To inform the regulated communities, Congress
and the public that EPA will enforce the statutues
it administers in a prompt, fair and even-handed manner.
For DOJ
To provide the litigation support necessary to
aid EPA in the accomplishment of these goals. .
2. GZHSRAL OBSERVATIONS
A. Emphasis will be placed on bringing meaningful
enforcement cases, particularly hazardous waste cases,
criminal cases and enforcement of existing consent
decrees;
B. Especially with regard to recently-enacted
«
statutes, DOJ needs policy guidance from EPA to
give direction on enforcement activity and to main-
tain consistency;
C. Regional offices of EPA will be the lynch-
pin of the agency f cr identifying and developing
enforcement matters ;
trators p-i-ay Key rcj.es in me enxorcemeut
which are being clarified;
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E. States, where possible, should be givun the
opportunity and incentive to initiate enforce-
ment cases. Effectiveness of state enforcement
actions will be considered;
F. While national enforcement priorities are
necessary, flexibility is desirable for region-
by-region determinations;
G. Criminal enforcement priorities and
processes are being developed separately from
civil matters;
H. United States Attorneys play a critical
role and should be involved wherever possible;
_!.__jtetgeenEpA^Headquarters and the regions.
areas of responsibility will be identified
to allow regional flexibility.
J. Focused use of administrative discovery
powers is necessary for effective investigation
of the factual/technical basis for cases.
3. RESPECTIVE COMMITMENTS
A. On enforcement policy formulation, EPA
will seek, where appropriate, to confer and
coordinate with DOJ concerning potential in- .
pacts on litigation;
3. Policy guidance given, to R.A.'s and R.C.'s
v'11. also be orovided to DOJ:
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- 3 -
C. Informal working groups in all media
will continue (or be established) to pro-
vide DOJ/EPA-OGC input to address legal issues;
D. Associate Administrator Ferry and Assistant
Attorney General Carol E. Dinkins will be available
to discuss new enforcement guidance with R.A.'s
and K.C.'s in U.C. To be discussed will be R.A.
accountability and commitment to a sustained,
orderly enforcement program that includes litiga-
tion as a desirable component;
£. Associate Administrator Ferry will meet with
Assistant Administrators on enforcement policy.
to clarify roles and secure commitments from
program side for sufficient technical support;
F. Assistant Attorney General Dinkins will
make similar presentations to United States
Attorneys on policies, processes and roles;
G. Violations will be discovered through
self-reporting, regular inspections, citizen
complaints, administrative discovery and
trained criminal investigators;
H. Administrative powers, to be used for
investigatory purposes, should be delegated
to regions by eliminating need for Head-
quarter's concurrence;
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- 4 -
I. Ones a case is referred, the government
will remain open to negotiation but will con-
tinue to move the case to trial.
4. PROCESS
A. DOJ attorneys assigned on a regional basis
to handle All nedia;
B. EPA regional enforcement attorneys are media-
specific;
C. A lead agency attorney (generally an attorney
from the region) will be designated to manage the
case for the agency and coordinate with DOJ;
D. Regular, monthly meetings will be held in
.the regions, attended by DOJ and EPA attorneys,
with technical staff present and AUSA's invited
to discuss:
1. general enforcement actions, in-
cluding EPA administrative processes
and investigations exclusive of criminal
matters;
2. cases targeted-by EPA as likely
candidates for litigation, to deteriae
a. whether DOJ assistance prior
to referral would be helpful; and
b. adequacy of agency de-
velopment of case;
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- 5 -
3.. cases previously discussed as
tie cters to be identified for case
development to DOJ;
4. separate meetings will be
held in the regions with program
heads to discuss program enforce-'
Bent priorities and concerns;
£. Following discussions at monthly meetings
regarding potential matters for case develop-
ment, when region determines that natter is a
potential civil enforcement case, R.C. requests
DOJ assistance for case development
1. team is formalized at this point,
in anticipation of litigation;
2. technical support is committed;
3. goal is resolution through nego-
tiated settlement or final judgment;
F. Vlien a case hasCrnaturedT^he regional
administrator requests the Associate Admin-
is tator to refer the case to DOJ for litiga-
tion;
G. Seme cases will be referred directly to
DOJ without foraing a case development teas.
H. For true emergencies, telephonic authori-
zaticr. to file vill suffisa;
\
V
\
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- 6 -
I. A new reiarral package format, mor-,.
streaa-lined and appropria:*'. to the case
development process identified above will
be produced;
J. For cases referrsd before monthly
meetings begin, DOJ and EPA will confer
informally prior to referral;
K. Associate Administrator Ferry and
Assistant.Attorney General Dinkins are
available for dispute resolution if
difficulties or disputes cannot be
handled at intermediate levels;
L. Coordination for all of these efforts
%
will include
1. Perry and Dinkins visits Co
regions;
2. Perry and Dinkins bi-weekly
meetings with staff;
3. Perry and Dinkins monthly
meetings without staff:
4. regular monthly meetings at
staff level in regions;
5. working groups in D.C. on
DOJ input into policy formulation
re litigation impact;
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6. Basic understanding by both
agency and DOJ lawyers of their
respective roles and the need
for a cooperative spirit.
5. SPECIFIC ISSUES DISCUSSED
A. EPA is establishing guidelines for
Superfund national strategy including
especially criteria for which injunctions
are appropriate and whether the regions
or headquarters has the initiative for
Superfund enforcement;
B. Existing Consent Decrees
1. collection and analysis of
compliance status of all existing
consent decrees to be accelerated;
2. uniform policy to be adopted
on modification of existing decrees
through judicial action;
3. violations of existing consent
decrees are a top priority for
enforcement;
4. collection cf stipulated penalti
\
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, DC 20460
30 APR 1982
OFFICE OF
LEGAL ANO ENFORCEMENT COUNSEL
MEMORANDUM
SUBJECT: Agency Guidelines for Participation in
Jury Investigations
FROM: "Robert M. Perry/Associate Administrator
for Legal ana Enforcement Counsel
TO: Associate Adminstrators
Regional Administrators, Regions I-X
Regional Counsels, Regions I-X
Director, National Enforcement Investigations Center
Federal grand juries are almost always used to develop
EPA's criminal cases following referral to the Justice Depart-
ment. Frequently, EPA employeesincluding investigators,
lawyers and technical personnelassist in these grand jury
investigations under the supervision of the Justice Department.
The conduct of Agency employees involved in grand jury investi-
gations- is frequently subjected to close judicial scrutiny,
since defense counsel routinely challenge aspects the grand jury
presentation during post-indictment motions. Accordingly,
Agency employees who assist the Justice Department during
grand jury investigations must be familiar with, and abide
by, the rules of conduct established for this institution
by case law and the Federal Rules of Criminal Procedure.
The attached "Agency Guidelines for Participation in Grand
Jury Investigations" have been drafted to provide Agency employees
with a general knowledge of the most important rules surrounding
grand jury investigations. Please take immediate steps to insure_
that personnel working within your offices who are assigned to
assist in grand jury investigations are completely familiar with
the details of this guidance document.
Questions on any matter raised in this document should be
directed to Peter Beeson, Acting Director, Office of Criminal
Enforcement (FTS 382*4543).
Attachment
cc: Carol Dinkins
Assistant Attorney General
Land and Natural Resources Division
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AGENCY GUIDELINES
FOR
PARTICIPATION
IN
GRAND JURY INVESTIGATIONS
United States Environmental
Protection Agency
Effective Date:
APR 30B82
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TABLE OF CONTENTS
INTRODUCTION 1
I. BACKGROUND: THE ROLE OF THE GRAND JURY 2
II. THE OPERATION OF THE GRAND JURY 3
Authorized Persons Before the Grand Jury 4
The Statutory Recording Requirement 5
The Indictment Process 5
III. GRAND JURY SECRECY 6
The Rule and its Exceptions 6
Disclosure of Grand Jury Materials to
Agency Supervisors 9
Disclosure of Grand Jury Materials in
Parallel or Subsequent Civil/
Regulatory Proceedings 10
Media Inquiries Concerning Grand Jury
Proceedings 12
IV. CARE AND CUSTODY OF GRAND JURY MATERIALS 12
V. CONCLUSION 13
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AGENCY GUIDELINES FOR PARTICIPATION IN GRAND JURY
INVESTIGATIONS
INTRODUCTION
In the past, EPA has relied extensively on the grand
jury to develop its criminal referrals. With the projected
hiring of criminal investigators who will be capable of
more complete, pre-referral case development, this reliance
may decrease somewhat. Given the nature of EPA's criminal
jurisdiction, however, the grand jury will always be a
significant component of the criminal case development
process.
This guidance document is written to provide a
general understanding of the grand jury process, and of
the particular responsibilities born by EPA employees
involved in grand jury investigations. In drafting
this document, the Agency has coordinated closely with
the Department of Justice, since its participation in
grand jury investigations will occur only in partnership
with attorneys of the Justice Department and the offices
of its local United States Attorneys. In addition,
the views of regional offices were solicited on one
issue of particular sensitivity: the need for access
to confidential grand jury materials by EPA managers.
The guidance contained within is not intended to
supplant rules of procedure for the conduct of grand
jury investigations contained in the United States Attorneys'
Manual, or developed by the specific United States Attorneys.
It will, however, provide internal guidelines for EPA
employees where no specific Justice Department rules
exist. This document will replace any previous Agency
guidance on this subject.
Finally, this guidance is strictly advisory in
nature, and is not intended to create or confer any rights,
privileges or benefits on prospective witnesses or defen-
dants. It is not intended to, does not, and may not be
relied upon to create any'rights, substantive or proce-
dural, enforceable at law by any party in any matter,
civil or criminal. Any attempt to litigate any portion
of this guidance should be brought directly to the
attention of the Office of Criminal Enforcement, EPA
Headquarters.
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I. BACKGROUND; THE ROLE OF THE GRAND JURY
The grand jury serves two basic functions: investi-
gative and protective. In cases where traditional field
investigation techniques have failed to produce adequate
evidence to support a criminal prosecution, the grand
jury's compulsory process, in conjunction with statutory
immunity grants, can be used to compel testimony and the
production of documents. This is particularly important
in white collar crime cases, in which the loyalty of the
investigative targets, together with the privateoften
inaccessiblesettings of the suspect activity, often
frustrate more traditional field investigative methods.
The grand jury also acts as a check on independent
and overzealous prosecutorial decision-making. The Fifth
Amendment to the United States Constitution guarantees
that Federal felonies_JL/ will be charged by grand jury
indictment. Misdemeanors can and often will be charged
by indictment. This is not a constitutional requirement,
however, and they are sometimes charged in an "information"
filed independently by the prosecutor without prior
consideration of the underlying evidence by a grand jury.
It is the function of the grand jury to determine whether
there is probable cause to believe that a Federal offense
has been committed by the defendant(s) named in the proposed
indictment.
The Supreme Court has described the dual functions
of the grand jury as "both the determination whether
there is probable cause to believe a crime has been
committed and the protection of citizens against unfounded
criminal prosecutions." United States v. Calandra, 414
U.S. 338, 343 (1974). Stated alternatively, the purpose
of the grand jury is "to provide a fair method for
instituting criminal proceedings" by a body that is
"independent and informed." Costello v. United States,
350 U.S. 359, 362 (1956).
I/ A felony is defined at 18 U.S.C. §1 as "any offense
punishable by death or imprisonment for a term exceeding
one year." Any other offense is a misdemeanor, id. In
EPA's statutes, felony provisions are found in Section
3008(d-e) of the Resource Conservation and Recovery Act,
42 U.S.C. §6928(d-e), and for second offenders under Section
309(c)(l) of the Clean Water Act, 33 U.S.C. S1319(c)(l),
and Section 113(c)(l)(A) of the Clean Air Act, 42 U.S.C.
§7413(c)(l)(A).
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In Berger v. United States, 295 U.S. 78, 88 (1935),
the Court described the responsibilities of a prosecutor
appearing before a grand jury:
(A) prosecutor who presents a case to a grand
jury has the obligation of preserving the fairness,
impartiality, and lack of bias of this important
governmental investigative body. He can not
inflame or otherwise improperly influence
grand jurors against any person...; and he
must always remember that he is a representative
not of an ordinary party to a controversy but
of a sovereignty whose obligation to govern
impartially is as compelling as its obligation
to govern at all....
The obligation placed on the prosecutor is shared by
all government personnel assigned to the investigation.
II. THE OPERATION OF THE GRAND JURY
Backgroundt Regular grand juries can be empanelled for
up to 18 months, see Rule 6(g), Federal Rules of Criminal
Procedure (FRCP). In many districts, terms of regular
grand juries are far shorter. "Special" grand juries--
normally empanelled to hear a particularly complex and
lengthy investigationsit for a term of 18 months and
may be extended for an additional 18 months. 18 U.S.C.
§3331.
Federal grand juries consist of not less than sixteen
nor more than twenty-three members. Rule 6(a), FRCP. The
grand juries are empanelled before the district court,
who will then appoint one member to be Foreman, and one
to be Deputy Foreman. The Foreman has the power to administer
oaths to all witnesses, and signs all indictments. Rule
6(c), FRCP. An indictment may be found with the concurrence
of twelve or more jurors. Rule 6(f), FRCP. Sixteen
or more jurors must be present for the grand jury to
conduct business. Thus, before beginning any session
the prosecutor will insure that at least sixteen grand
jurors are present.
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Authorized Persons Before the Grand Jury; The only
persons allowed to be present at a session of the grand
jury are "attorney(s) for the government"; the witness
under examination; an interpreter if necessary; a
stenographer or operator of a recording device; and
the grand jurors. Rule 6(d), FRCP. The presence
of unauthorized persons before the grand jury is a per se
basis for dismissal of an indictment, without a demon-
stration of prejudice. United States v. Phillips Petro-
leum, 435 F. Supp. 610 (D. Okl. 1977); United States v.~
Braniff Airways, Inc., 428 F. Supp. 579 (D. Tex..1977);
United States v. Echols, 413 F. Supp. 8 (D. La. 1975).
Adherence to the terms of Rule 6(d) is mandatory.
In the context of Rule 6(d), the phrase "attorney
for the government" does not include EPA or other Federal
agency attorneys. See Rule 54(c), FRCP. 2_/ See also.
In re Grand Jury Proceedings, 359 F. 2d 440, 443 (3d.
Cir. 1962)(FTC attorney); In re Grand Jury Investigations,
414 F. Supp. 476 (S.D.N.Y. 1976) (SEC attorney); United"
States v. General Electric, 209 F. Supp. 197, 202 (E.D.
Pa.1962)(TVA attorney). Thus, unless a special appoint-
ment is made, 3_/ EPA attorneys will appear before the
grand jury only as witnesses, and only during those
sessions when their testimony is presented.
2/ Rule 54(c), FRCP, defines "attorney for the government,"
Tn pertinent part, as:
...the Attorney General, an authorized assistant
of the Attorney General, a United States Attorney,
an authorized assistant of the United States Attorney..
3_/ In those cases in which the particular expertise and
experience of an EPA attorney is considered necessary
to the successful investigation and prosecution of a
criminal case, that attorney can be appointed an authorized
assistant of the Attorney General pursuant to 28 U.S.C.
§515(a), or of the United States Attorney pursuant to
28 U.S.C. §543. In either case, the EPA attorney would
meet the definition of "attorney for the government"
found at Rule 54(c), FRCP. Such appointments may only
be made at the request of the Justice Department attorney
overseeing the investigation.
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At least two courts have held that a prosecutor
presenting evidence to a grand jury who also testifies
as a witness before that grand jury is an "unauthorized
person in the grand jury room" in violation of Rule
6(d). United States v. Gold, 470 F. Supp. 1336, 1351
(N.D. 111. 1979); United States v. Treadway, 445 F.
Supp. 959 (N.D. Tex. 1978).In addition, this conduct
has been found to violate the ABA's Code of Professional
Responsibility. United States v. Birdman, 602 F.2d 547,
551-555 (3d. Cir. 1979).Under no circumstances should
an EPA attorney appointed to act as a Special Assistant
United States Attorney testify before a grand jury to which
that attorney is also presenting evidence as a prosecutor.
The Statutory Recording Requirement: As of August 1,
1979,"all proceedings (before a grand jury), except
when the grand jury is deliberating or voting" must
be recorded. Rule 6(e)(l), FRCP.
The precise meaning of this mandate has not been
clarified by case law; nor do we knowas yetwhat
sanctions will flow from violations of this requirement.
In the absence of decided case law to the contrary, this
rule should be interpreted strictly. Beyond the
exchange of pleasantriesi.e., personal greetings,
observations on the weather, etc.EPA employees should
not engage in conversations with grand jurors unless
that coversation is being recorded as part of a formal
grand jury session. If a grand juror asks a question
prior to or after a formal session, you should politely
advise the grand juror that it is not proper to respond
at that time, and request that the question be raised
again after a recorded session begins.
In the case of an inadvertant breach of this rule,
you should immediately notify the prosecutor supervising
the investigation, who may in turn wish to ask that the
conversation be repeated on the record before the entire
grand jury.
The Indictment Process: At the end of an investigation,
the prosecutor will ask a grand jury to vote on a re-
commended indictment. The indictment itself will have been
drawn up in advance, and will be presented unsigned to
the grand jury for consideration. Procedures on the
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-6-
manner of presentation will vary by district and the
nature of the case. The recommended indictment will
normally be marked and introduced as a grand jury exhibit,
and the grand jury will be informed that all documents,
records and witness transcripts are available for review
if necessary. The deliberations of the grand jury are
not recorded; in addition, no one is present during deliber-
ations except members of the grand jury itself. If the
grand jury votes to indict, the indictment is signed
by the Foreman, as well as the United States Attorney,
and is returned to a judge in open court. 4/
"^
III. GRAND JURY SECRECY
Confidentiality is often crucial to the success of
a criminal investigation. In addition, the Agency has a
responsibility to protect the targets of criminal investi-
gations from the adverse publicity that can result from the
premature disclosure of a criminal inquiry. UNDER NO
CIRCUMSTANCES SHOULD AGENCY OFFICIALS DISCUSS THE EXISTENCE
OF A CRIMINAL INVESTIGATION, EITHER WITHIN OR OUTSIDE
THE AGENCY, EXCEPT ON A NEED-TO-KNOW BASIS. This rule
applies with equal force during EPA's dealings with
Federal, State and local officials.
Given the provisions of Rule 6, FRCP, confidentiality
is particularly important during grand jury investigations.
The Rule and its Exceptions; Rule 6(e)(2) of the Federal
Rules of Criminal Procedure establishes an overall bar to
the disclosure of "matters occurring before the grand
jury" except as in compliance with the terms of Rule
6(e). Grand jury secrecy is of crucial importance to
the preservation of the grand jury as an investigative
agency. Grand jury secrecy exists to encourage complete and
willing testimony by witnesses; to minimize the risk of
flight by prospective defendants; to safeguard the grand
jury from extraneous pressures and influences; and to avoid
prejudicial disclosures concerning investigative targets.
See United States v. Proctor and Gamble, 356 U.S. 677
(1958).A breach of grand jury secrecy is punishable by
contempt of court.
Rule 6(e) of the Federal Rules of Criminal Procedure
establishes strict procedures to ensure the secrecy of
grand jury proceedings. For purposes of this document,
we are concerned with the following portions of Rule
6(e):
4/ In appropriate circumstances the indictment can be
"sealed", i.e., kept secret, until some future date. This
procedure is often used when the defendant is not in
custody and may flee.
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(2) General Rule of Secrecy - A grand juror,
an interpreter, a stenographer, an operator
of a recording device, a typist who transcribes
recorded testimony, an attorney for the govern-
ment, or any person to whom disclosure is made
under paragraph (3) (A) (id.) of this subdivision
shall not disclose matters occurring before the
grand jury, except in accordance with this
rule. A knowing violation of Rule 6 may be
punished as a contempt of court.
(3) Exceptions.
(A) Disclosure otherwise prohibited by this
rule of matters occurring before the grand
jury, other than its deliberations and the
vote of any grand juror, may be made to
(i) an attorney for the government for
use in the performance of such attorney's
duty; and
(ii) such government personnel as are
deemed necessary by an attorney for the
government to assist an attorney for the
government in the performance of such
attorney's duty to enforce Federal criminal"
law.
(B) Any person to whom matters are disclosed
under subparagraph (A)(ii) of this paragraph
shall not utilize that grand jury material for
any purpose other than assisting the attorney
for the government in the performance of such
attorney's duty to enforce Federal criminal
law. An attorney for the government shall
promptly provide the district court, before
which was empanelled the grand jury whose
material has been so disclosed, with the names
of the persons to whom such disclosure has been
made.
(Emphasis supplied)
In sum, the general rule of secrecy established
in Rule 6(e) has two exceptions of particular interest
to EPA personnel involved in grand jury investigations:
(1) disclosure to an "attorney for the government" (which
requires no judicial authorization) and (2) disclosure
to government personnel assisting the attorney for the
government in the enforcement of Federal criminal law
(which requires timely notification to the district
court supervising the grand jury investigation).
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As was indicated earlier, EPA attorneys do not
fall automatically within the category of "attorney(s)
for the government." Rule 54(c), FRCP. Thus, except in
those cases in which the Agency attorney is appointed
an authorized assistant of a Justice Department prosecutor
under 28 U.S.C. §§515(a) or 543, the first exception
is inapplicable to EPA employees.
Of far greater significance within EPA's context
is Rule 6(e)(3)(A)(ii), which authorizes disclosure
to government personnel assisting an attorney for the
government in the enforcement of Federal criminal law.
For example, EPA technical personnel will frequently
be asked to review scientific documents received pursuant
to grand jury subpoena and to analyze them for the grand
jury. Similarly, EPA attorneys familiar with Agency
regulations may be asXed to determine whether the facts
developed in a grand jury inquiry constitute violations
of specific regulatory programs. Finally, EPA's criminal
investigators will normally be made agents of the grand
jury to serve subpoenas, receive and review grand jury
materials, and interview subpoenaed witnesses prior
to testimony.
Decisions on the scope of disclosure to government
personnel under this exception are vested, under Rule
6(e), with the prosecutor supervising the grand jury
investigation. The identity of these government personnel
must be disclosed to the court that empanelled the grand
jury. There is no statutory obligation to give the
court prior notice of such disclosure, see In re Grand
Jury Proceedings (Larry Smith), 578 F. 2d 836 (3d. Cir.
1978); however^ prior notification is the preferable
practice where feasible. Finally, the purpose of the
disclosure must be to assist in the enforcement of Federal
criminal law. Rule 6(e)(3)(A)(ii).
Rule 6(e)(3)(A)(ii) disclosures will be used with
restraint and will be limited to situations in which
they are necessary for the furtherance of the criminal
investigation. Under no circumstances can information
disclosed under this provision be communicatedin any
formto any Agency employee not specifically authorized
to receive this information under the provisions of Rule
6(e). This would include, for example, even members
of EPA's Office of Criminal Enforcement and criminal
investigators hired in our field offices. It would also
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-9-
include, of course, Congressional, State or local
officials interested in the matter under investigation.
The bar imposed by Rule 6(e) is total.
Disclosure of Grand Jury Materials to Agency Supervisors
In the past, the question has arisen whether an
Agency employee assigned to a grand jury investigation
and authorized to review grand jury materials must there-
after cease all discussions of his or her work with
supervisory personnel.
Strict confidentiality is required for "matters
occurring before the grand jury." This phrase should
be read to include, at a minimum, the substance of grand
jury testimony and any transcripts or memoranda reflecting
that testimony; the substance of documents subpoenaed
by the grand jury; the identities of witnesses appearing
before the grand jury; and the identity of investigative
targets, corporate or individual, developed during the
grand jury investigation.
On the other hand, grand jury secrecy does not
preclude necessary discussion within the Agency of
publicly-filed motions relating to the grand jury investigation
(i.e., motions to quash grand jury subpoenas); or the
discussion of legal issues arising during grand jury investigations,
if they can be discussed in the abstract, without reference
to evidence developed before the grand jury. Of course,
where there is doubt about whether a matter is protected
by grand jury secrecy, the question should always be raised
with the "attorney for the government" overseeing the
investigation prior to disclosure.
On occasion, when unexpected and significant Agency
resource commitments are required during the course of
a grand jury investigation, limited disclosure of grand jury
materials to EPA managers not actively involved in the case
may be appropriate. However, such disclosure will be made
by, and with the prior approval of, the Justice Department
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-10-
attorney supervising the investigation; further, it will be
limited to the facts necessary for the supervisor to make an
intelligent decision on the use of his or her resources.
In addition, care must be taken to ensure that the manager
receiving this information is not supervising a simul-
taneous- civil, administrative or regulatory proceeding
involving any of the investigative targets. Of course,
appropriate notification to the Court under Rule 6(e) must
occur at the time of the disclosure.
Disclosure of Grand Jury Materials in Parallel or Sub-
sequent Civil/Regulatory Proceedings;The grand jury's
sole legitimate investigative purpose is to determine
whether probable cause exists to believe that Federal
criminal law has been violated. Thus, it has been held
that it is an abuse of the grand jury to continue presenting
evidence once a decision has been made not to seek an
indictment. United States v. Proctor and Gamble Co.,
175 F. Supp. 198, 199 (D.N.J. 1959). In a variation
of the same theme, the District Court for the Southern
District of New York has held that the government may not
use the grand jury to inquire into civil as well as
criminal liability:
The grand jury's role is properly confined,
and amply respected, when it is held empowered
to conduct investigations that are in their
inception exclusively criminal. To hold other-
wiseto confer court approval upon the kind
of concurrent criminal and civil inquiries
projected by the instant application would
expand the already awesome powers of the grand
jury beyond tolerable limits.
United States v. Doe, 341 F. Supp. 1350, 1352 (S.N.D.Y.
1972) (emphasis supplied).
These holdings do not mean that evidence acquired
by the grand jury in a good faith criminal investigation
can not subsequently be used in a civil action. Rule
6(e)(3)(C)(i) establishes that disclosure of matters
before the grand jury may also be authorized by court order
when that disclosure is "preliminary to or in connection
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-11-
with a judicial proceeding." 5/
Courts are split on the scope of this exception,
and disclosure will not, by any means, follow automati-
cally on the heels of a motion. The government must
demonstrate three things to be entitled to a disclosure
motion: First, that the grand jury investigation was
conducted to ascertain whether or not violations of
criminal law had occurred, and not as a subterfuge to
obtain grand jury records for a civil investigation
or proceedings, In re Grand Jury Subpoenas, April 1978,
581 F. 2d 1103, 1110 (4th Cir. 1978); second, that dis-
closure of grand jury records would be preliminary to a
judicial proceeding, Rule 6(e)(3)(i), FRCP; and third,
that there is either a "particularized need" for the
records, In re Grand Jury Investigation, Sells Engineering
Inc. , 642 F.2d 1184 (6th Cir. 1981) or that the records
are "rationally related" to the civil proceedings, In re
Grand Jury Subpoenas (Baltimore), 581 F.2d. 1103, 1110
(4th Cir. 1978); In re Grand Jury Proceedings (LTV) 583
F.2d 128 (5th Cir. 1978).
Rule 6(e) motions will be made only with the author-
ization and assistance of the prosecutor who supervised
the grand jury investigation.
To avoid both the appearance, as well as the potential,
that a grand jury investigation will be misused to accumulate
evidence for a noncriminal purpose, employees assigned to
work on or review materials accumulated in grand jury
investigations should have no responsibilities, either
staff or supervisory, on other simultaneous or subsequent
civil or regulatory proceedings involving the subject(s)
5_/ One court has observed, in this regard:
Nothing said herein is meant to overlook the Supreme
Court's realistic observation that evidence acquired
in a legitimate grand jury inquiry may later be
usable even though it has been concluded that no
indictment should issue. See United States v. Proctor
and Gamble, 356 U.S. 677, 684 (1958).That is wholly
different from the proposition that the inquiry may
start out or continue with the explicit purpose of
discovering evidence for civil claims.
United States v. Doe, 341 F. Supp. 1350, 1352 (S.D.N.Y.
1972).
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-12-
of the grand jury investigation. Exceptions to this
general prophylactic rule may well be appropriate in
certain casesas, for example, where the subject
matter of the grand jury investigation is unrelated
to the civil/regulatory matter. However, exceptions
should not be made without prior discussions with the
Office of Criminal Enforcement, EPA Headquarters, and
the Justice Department prosecutor supervising the
investigation.
Media Inquiries Concerning Grand Jury Investigations; EPA
personnel should never confirm the existence of an ongoing
grand jury investigation in response to press inquiries.
If pressed, questions should be referred to the Justice
Department or local United States Attorney.
IV. CARE AND CUSTODY OF GRAND JURY MATERIALS
This final section recommends procedures to be
employed by EPA personnel granted access to and custody
of grand jury materials during the course of a criminal
investigation--as, for example, when voluminous technical
documents are subpoenaed and transferred to EPA personnel
for review. As a general rule, procedures for the care
and custody of these materials should first be discussed
with the Justice Department prosecutor. - If local rules--
or procedures exist, they should be followed. In the
absence of such specific local guidance, however, the
following procedures, if followed, will provide adequate
assurance against breaches of security and subsequent
allegations of grand jury abuse.
1. The identity of all Agency employees who will
have access to grand jury materials should be included
in a notice to the Court pursuant to Rule 6(e)(3)(B).
If additional Agency personnel later prove necessary,
these additional names should be provided to the
Court in a timely fashion.
2. If grand jury materials are to leave the Federal
district in which they are subpoenaed (for example,
to be transported to a Regional office of review)
consideration should be givenalong with the
prosecutorto seeking the prior approval of the
grand jury. The anticipated transportation of
materials from the district might also be included
in the 6(e)(3)(B) notice to the Court.
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3. Grand jury materials should be transported
personally where feasible (rather than by mail).
If the postal system is used, the materials should
be sent by certified mail, return receipt requested.
4. Grand jury materials should be totally segregated
from the regular files of the Agency. Where possible,
a separate room should be used, since this allows
both control of access and a private working space
for personnel authorized to review these materials.
Finally, the materials should be clearly labelled
to avoid inadvertant disclosures.
5. Grand jury materials, once segregated, should
be secured, either in locked file cabinets, behind
locked doors, or both. Access to the materials
should thereafter be limited solely to personnel
on the 6(e) list.
6. A system of accountability for grand jury
materials should be established. The system should
allow the government to demonstrate, if challenged,
the materials that were received, and those that
have been returned. Any indexing system that is
workable for the prosecutor is acceptable. One
traditional system uses the number of the grand jury
subpoena, followed by sequential numbers for the
documents or exhibits received in response to that
subpoena.
N.B. This indexing should occur before the
substantive review begins and documents are taken
out of their original order. If this is done, it
will always be possible to identify the order and
date on which documents were received, and the
subpoenas to which they responded. It will also
facilitate response to subsequent allegations that
documents have been lost.
V. CONCLUSION
This document will assist Agency personnel to perform
effectively and responsibly in the context of grand jury
investigations. Agency employees assigned to grand jury
investigations should be thoroughly familiar with its
contents before they begin their work. Questions should
be directed to the Office of Criminal Enforcement (FTS 382-
4543).
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r
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Note on Regional Organization Structure
of September 15, 1981
Since the Agency issued this memorandum, the Regional
structure has changed such that the Regional Counsels report
to the Regional Administrators. The Office of General Counsel
also retains some authority over the Regional Counsels. (See
memorandum entitled "Regional Counsel Reporting Relationship"
of August 3, 1983, GM-16.)
It should also be noted that although this memorandum
generally discusses the role of the Regional Counsel, the
specific legal authority of the Regional Counsel is often
covered in the Agency's delegations of authority. In those
cases where the Regional Counsels' authority is covered in
a delegation, the delegation is determinative of the Regional
Counsels' authority.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE Of
LEGAL COUNSEL AND 6N*OBCEM6NT
MEMORANDUM
SUBJECT: Reorganization of the Offices of Regional Counsel
FROM: Robert M. Perry, associate Administrator for Legal and
Enforcement Counsel and General Counsel
TO: Regional Administrators I-X.
Regional Counsels 1-X
INTRODUCTION.
Since September 15, 1981, when the Administrator authorized
the Regional reorganizations, nearly all Regions have transferred
or detailed th-,.ir enforcement attorneys and support staffs to
the Offices of Regional Counsel. In most cases, former organi-
zations and positions remain intact.
This memorandum contains guidance on completing the reorganization
process. The guidance allows flexibility so that varying needs
among Regions may be met while at the same time providing for
basic organizational consistency. Regional Counsels may choose
from among the four basic organizational structures shown on
Tabs A, B, C, and D. I have also attached standard position
descriptions for each of the new positions to be established
in the Offices of Regional Counsel. These position descriptions
are attached as Tabs E, F, G, H, I and J.
As soon as the permanent SES Regional Counsel is in place,
the Region should begin the process of fully implementing
this guidance. Until then, other Regional Counsels and
Acting Regional Counsels should take interim steps which are
consistent with this guidance, provided that, in each case, the
concurrence of the Regional Administrator and my approval are
" rst obtained. Such interim steps should not unduly limit
options available to the permanent SES Regional Counsel.
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-2-
'.I. THE ADMINISTRATOR'S OBJECTIVES FOR THE REGIONAL
REORGANIZATIONS.
The Administrator'a objectives for the Regional reorganizations
are reflected in this guidance. These objectives are stated
in her memorandum of September 15, 1981 (a copy of which is
attached as Tab K). The following excerpts from that memorandum
apply to the reorganization of the Regional legal offices:
Reorganization Objectives. Regional organization
decisions include consideration of the following
objectives:
- Clarifying accountability for regional
programs.
"- Facilitating communication links between
related Headquarters and regional components.
- Improving regional policy and management
decision-making.
- Placing functions in organizations where
they can best be integrated with related
activities.
- Favoring fewer and larger organizations to
avoid subsequent further consolidation and
reorganization in a time of declining resources.
. . . Major features of the authorized organization include
the following:
1. Enforcement functions of permit issuance and
related compliance monitoring are assigned to the appropriate
program divisions. This includes issuance of notices of
violation and administrative orders, after consulting with
the Office of Regional Counsel. (Permit coordination
functions and placement are optional.)
2. Legal work associated with Enforcement litigation
and current Regional Counsel functions will be performed
in newly structured and expanded Offices of Regional
Counsel reporting to the General Counsel with the following ~
provisions:
a. Regional Counsels will provide the Regional
Administrator with legal advice and assistance for all
program areas in an attorney client relationship.
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b. The Regional Administrator will con-
tinue to initiate enforcement actions. These
actions will be based upon guidance from the
Enforcement Counsel, Office of Legal and Enforcement
Counsel, and with legal concurrence of the Regional
Counsel.
c« As in the past the Regional Adminis-
trator will participate in and concur with the
General Counsel in selections, promotions, awards
and disciplinary actions for Regional Counsels.
Regional Adminis-trators will be a party to perfor-
mance agreements for and will participate in the
performance ratings of Regional Counsels by the
General Counsel*
d. The Regional Administrator will also
continue to manage the resources of the Office of
Regional Counsel and will provide certain administrative
support such as space allocations, processing of
personnel actions, and the management of travel
and training accounts.
III. BASIC PRINCIPLES FOR REORGANIZATION OF THE OFFICES
OF REGIONAL COUNSEL.
I have established the following basic principles for the
reorganization of the Offices of Regional Counsel:
A. All Attorneys in the Offices of Regional Counsel.
.iere are to be no series 905 attorneys in any other offices in
the Regions without my concurrence. This is to ensure that
the Agency speaks with one legal voice.
B. The Attorney-Client Relationship. All attorneys are
to serve program clients in the context of an attorney-client
relationship. This applies no matter what activities the
attorneys are performing. Although attorneys are free to
offer program and policy advice when asked to do so, it should
be recognized that program and policy decisions (and the conse-
quences of those decisions) are the responsibility of Regional
program managers. Where there is a mixture of legal and policy
issues, attorneys and program managers are expected to work
collaboratively, with each party recognizing the professional
responsibilities of the other in seeking a joint resolution
of those issues.
C. Organization Along Media Lines. As shown on the four
organizational structure options attached to this memorandum,
every Office of Regional Counsel should be organized along media
lines, as opposed to functional lines. This means that the attorneys
are to be grouped according to the different media areas which
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they serve (air, water, hazardous waste, etc.) and are to perform
both general legal work and enforcement legal work. The media
iplits are to follow roughly the same media lines as in the
Office of General Counsel and in the Regions. With my concurrence,
a Region nay elect to combine media areas in combinations
which are different from those found in the four options provided,
but in such a case the burden would be on the Region to show that
this would be consistent with the objectives of this memorandum.
IV. HOW THE ORGANIZATIONAL STRUCTURE WOULD WORK.
& The Regional Counsel. The Regional Counsel reports
directly to the Associate Administrator for Legal and Enforcement
Counsel and General Counsel. He serves as the principal legal
adviser to the Regional Administrator for all legal matters arising
within the Region. Be has an attorney-client relationship with the
Regional Administrator and the Regional program managers. The Office
of Legal and Enforcement Counsel provides nationally uniform guidance
to the Regional Counsel on the legal aspects of enforcement matters.
B. Deputy Regional Counsel and Enforcement Coordinator.
In certain cases, a Regional Counsel may establish a Deputy
Regional Counsel and Enforcement Coordinator position. Generally,
this would be appropriate only in a Region with a large Office
of Regional Counsel staff (such as where the Office contains
formal branches). The Deputy would perform enforcement coordination
functions and, therefore, the Region would not have a Senior
Associate Regional Counsel for Enforcement Coordination.
The Deputy would not serve as a team leader. He would have
^nagement functions in addition to enforcement coordination.
ne organizational options available to a Region with a
Deputy are the same as Options A, B, C and D, except that
the Senior Associate position would be deleted and a Deputy
position would be substituted. A Regional Counsel considering
the establishment of a Deputy position should furnish justification
for the position in connection with his reorganization plan
to be submitted as provided in Section IX. A position description
for the Deputy will be provided as soon as a request to
establish the position has been approved by me. The grade
level of the Deputy position would be determined after an
analysis of the position by the Regional position classification
specialist.
C. The Associate Regional Counsels. The Office will be
grouped into teams which are to handle all enforcement and
general legal matters arising within their assigned media
areas, as shown on the attached options. Each media team
will have a team leader who is to be called an "Associate Regional
Counsel.* This person will be the principal coordinator for
that media area and will be responsible for all matters arising
within that area. This will ensure that Regional program managers
and others dealing with the Office of Regional Counsel will.
know who is responsible for each legal matter in the Region.
The grade level of each Associate Regional Counsel will be
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-5-
determined'after an analysis of his projected duties and respon-
sibilities by the Regional position classification specialist.
See the position description attached as Tab H.
1. Management of the Work of Staff Attorneys. Each
Associate will be responsible for the work of the staff
attorneys working within his media area. Under Options A and
B, each Associate will have a defined group of staff attorneys
assigned to work with hira. Under Options C and 0, the Associate
will draw upon a pool of staff attorneys. Individual attorneys
in the pool could at any given time be dividing their tine
between two different media.
2. Rotation of Associates. The Associates will be expected
to rotate among media areas from time to time so as to broaden
their exposure and expertise.
3. Administrative Functions. The Regional Counsel may
assign certain administrative functions to the Associate in
charge of grants, etc., as one of this Associate's "other duties,
as assigned." Such functions could include: administrative
management of the Office of Regional Counsel; preparation of
all documents needed for resource management within the Office,
including the annual program plans and budget submissions;
preparation and submission of required reports on Office
activities and accomplishments, including current information
for automated data systems (coordinating reports on enforce-
ment matters with the Deputy or the Senior Associate Regional
Counsel for Enforcement Coordination); oversight of the annual
performance evaluation process for all staff members and preparation
f documentation required for such process; responsibility for
.nagement of the physical properties of the Office, including
-pace procurement and recommendations for allocation of space;
management of the process for recruiting and hiring attorneys,
interns and clerical personnel; and management of all timekeeping
systems. t
'i
Since this Associate would normally handle most legal
matters for the administrative offices of the Psgion (personnel,
financial management, etc.), assignment of these functions
would ensure close coordination between the Office of Regional
Counsel and these offices. This would ensure clear accountability
for these matters in a uniform manner throughout the Office of
Regional Counsel system and close coordination with the Grants,
Contracts and General Administration Division of the Office of
General Counsel.
D. The-Senior Associate Regional Counsel for Enforcement
Coordination. In those Regions where there is no Deputy, one
of the Associate Regional Counsels (except, under Options
A and C, for the Associate in charge of grants, etc., who has
no enforcement responsibilities) will be designated the "Senior
Associate Regional Counsel for Enforcement Coordination." Re
will be the enforcement coordinator for the Office and he will
also lead one of the media teams. Several Regions suggested that
the Senior Associate should not lead a media team, but should only
-------
have coordinating functions. However, coordination functions ,
alone will not svr port a high grade level and assigning other '
enforcement functa ns simply in order to support the grade
/ould be inconsistent with my objective of holding team leaders
accountable for all enforcement activities in their respective
media areas. Therefore, I have decided not to authorize the
establishment of a "floating" Senior Associate, that is, a
Senior Associate who is not also a media team leader.
The grade level of the Senior Associate Regional Counsel
for Enforcement Coordination will be determined after an analysis
of his projected duties and responsibilities by the Regional
position classification specialist. For this reason, it may
be desirable that the Senior Associate be assigned to lead the
media team with the most complex, difficult and nationally
significant workload in order to support a high grade level.
However, a Senior Associate may instead be assigned to lead a
media team with a less heavy workload where it appears that
this would also sustain the grade of the position or where grade
is not a controlling factor. This decision should be based
upon the balancing of all relevant factors including the extent of
the actual workload involved in coordinating enforcement functions.
See the position descriptions attached as Tabs I and J.
1. The Reason for the "Senior Associate" Title. In those
Regions with a Senior Associate, the title "Senior Associate
Regional Counsel for Enforcement Coordination" is preferable to the
title "Deputy Regional Counsel for Enforcement Coordination." Since
the Senior Associate would be in charge of only one of the media
teams, it would be confusing to persons dealing with the Office
£ he were called a "Deputy," since the commonly-understood
otion of a "deputy" is that he is a supervisor at a level
which is between the senior manager and the operating staff.
Regional Counsels in those Regions would have a closer working
familiarity with the work of their Offices and not be cut off
by a separate organizational layer.
2. Enforcement Responsibilities of the Senior Associate.
The Senior Associate Regional Counsel for Enforcement Coordination
will be responsible for coordinating all enforcement activity
within the Office of Regional Counsel. In addition to carrying
his own load of enforcement work, he will ensure that all enforce-
ment policy guidance from the Office of Legal and Enforcement Counsel
is received and distributed to the other attorneys and the program
offices, that the reporting system is kept current with accurate
data, that enforcement cases are assigned to the appropriate media
attorneys (and lead roles assigned where more than one medium
is involved), that Regional policy determinations are properly
staffed from a legal standpoint, and that the Office is generally
responsive to the enforcement needs of the Office of Legal and
Enforcement Counsel. These enforcement responsibilities are
spelled out in the position descriptions attached as Tabs I
and J.
3. Acting as Regional Counsel. The Senior Associate will
*. as the Regional Counsel in the absence of the Regional Counsel.
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-7-
E. Staff Attorney Positions. Staff attorneys at the
GS-11 level will be called "General Attorneys." Staff
attorneys at the GS-12 and GM-13 levels will be called
"Assistant Regional Counsels."
1. Grouping Staff Attorney in a Media Unit Arrangement;*
Options A and B provide that the staff attorneys will be grouped
in media units, each to be led by an Associate Regional Counsel
(except that one media unit will be led by the Senior Associate
Regional Counsel for Enforcement Coordination). Although a staff
attorney will generally work only in the media area for which his
unit is responsible, he can, as needed, be assigned as lead
attorney in a matter involving two or more media in which he
has expertise. For example, he can take the .lead on a case
which has both hazardous materials and air quality aspects.
He will also rotate anong media units, as discussed below.
2. Grouping Staff Attorneys in a Pool Arrangement.
Options C and 0 provide that a staff attorney will not be assigned
to a single media area, but will be permitted and encouraged
to divide his time between two different media at one time.
His work will be coordinated and directed by the Associates
(or Senior Associate) with responsibility for the given
media areas. As a staff attorney develops expertise in one
media area, he can expand the scope of his workload to include
matters from a second media area. Then, over time, he can
rotate into a third media area while dropping out of one of
the original areas. Several Regional Counsels have already
tried this pool concept and have reported that it works well
and is highly favored by both supervisors and staff attorneys.
3. Multi-media. _Rotation Policy. I want each Regional
Counsel to follow a policy of rotating all staff attorneys
through each of the different media areas. Staff attorneys in
the unit arrangement will be encouraged to move from media
unit to media unit as needs of the Office and preferences of
the attorneys permit. Staff attorneys in the pool arrangement
will obtain multi-media exposure as described above. Associates
will be required to maintain careful records of media assignments
so as to ensure that no one is on the sane track for too long.
The form of Attorney Rotation Record to be used for this purpose
is attached as Tab L. I believe that this policy will, over
time, provide all of our Regional attorneys with a broadly
based experience, thereby improving the quality of their legal
advice.
V. THE BENEFITS OF THE MEDIA-ORIENTED LEGAL OFFICE.
The principal benefits which I expect to accrue from organizing
the Offices of Regional Counsel along media lines are:
A. One Source of Legal Advice: One Legal Opinion.
There will no longer be two sets of attorneys involved in
and giving legal and other advice on different aspects of
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-8-
the same situation, a practice which has sometimes led to
conf-asion within the Agency and caused difficulty for regulated
parties and others in dealing with EPA.
B. Acting as "Counsel to the Situation." Instead of
approaching a problem with an "enforcement" perspective or
a "general legal" perspective/ attorneys will be able to act aa
"counsel to the situation*" This will encourage an attorney
to develop and apply a broadened perspective and thus improve
the quality of his overall legal advice.
C. Better Coordination of Litigation. Where an enforcement
action spawns a counter-suit, counterclaim, or an appeal to
a Court of Appeals, thereby causing an enforcement case
to involve or become a defensive case, the came attorneys will
handle the matter as a "situation," thereby ensuring a proper
coordination of strategy and a balanced assessment of all legal
implications.
D, Better Teamwork With Regional Program Staffs and
Headquarters Attorneys. The Regional program offices having
enforcement functions, the Office of General Counsel and the
Office of Enforcement Counsel are each organized along media
lines: it is clear that a media-oriented Office of Regional
Counsel will improve professional ties and working relationships
with all of these groups. Program personnel will always know
who their lawyers are. Attorneys are likely to.develop closer
working relationships with program staffs when the groups are
working together on many issues at the same time as part of a
+ eam. The same can be said of professional relationships with
sadquarters lawyers, who will get to know the Regional attorneys
jetter by sharing more working experiences with them. Regional
attorneys will be available to assist program personnel in
developing the factual basis for enforcement actions, including
actual field work such as sampling, inspections, and other
types of compliance activities. This will foster a better
understanding by the attorneys of the roles of their program
counterparts, thereby promoting closer teamwork.
E. Improved Legal Expertise of Attorneys. In a functional
division, at any given time an attorney must spend his time
trying to keep up with a large number of different statutes
and regulations governing all the media served by that function.
In a media-oriented Office, the attorneys will be allowed to
concentrate on keeping up with legal developments in one or
at most two media areas at a time. Attorneys become better
experts in an area when they are allowed to specialize in
that area and keep current on legal developments. The need
for Agency attorneys to attain the greatest level of expertise
possible is incontrovertible.
P. Better Accountability for Legal Advice. Under the
proposed system, it will be clear who is responsible
for all of* the legal advice in any given situation.
G. No Distinctions Among Groups of Attorneys. I am
.d that there are some Regional attorneys who have the
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-9-
perception that, in the past, one group of attorneys may have
seen more highly regarded and/or better treated than another.
I do not know whether there is any basis for this perception,
but any alleged problem will be eliminated by implementing
this guidance.
H. Maximum Utilization of Attorney Resources. Staff
attorneys can easily be shifted from one type of work to
another as workload and priorities change. This is particularly
true under the pool arrangement. Further, the new system
eliminates redundancy and duplication of effort which
existed under the past system; no longer will two sets of
attorneys be required to review matters, and the time and
energy previously needed to coordinate among different sets
of attorneys will now be available for additional legal
work. Here are two major examples of how the new arrangement
will improve efficiency and coordination:
1. Superfund Site Issues. One attorney should be given
the legal lead for each Superfund site. This attorney will
be responsible for providing legal advice to the program managers
on all alternative legal strategies for handling that site
so that all of the issues involved in deciding which course
of action (enforcement, cooperative agreement, state action,
etc.) will be given a consistent legal analysis. If enforcement
actions are initiated, the same attorney will handle them.
Conversely, if federal and state funds are to be used, the
'.Attorney will advise on the cooperative agreements. The lead
ttorney will be supported by the specialists in the various
-iedia teams where additional skills are needed.
2. Eliminating Duplieatiye Review of SIP Revisions,
Delegation Packages and Other Matters. Whereas, in the past,
two sets of attorneys would review SIP revisions, program
delegations, etc., each for different reasons, the new role
of the staff attorney will be to review a state statute,
regulation, etc., both from the point of view of its general
compliance with EPA requirements as well as for its "enforce-
ability." This should save a considerable amount of attorney
time otherwise spent on duplicative reviews and coordination
among reviewers.
VI. PROBLEMS WITH SEPARATION OF FUNCTIONS.
In those rare instances when the Office of Regional Counsel
might be called upon to advise a decision-maker on a problem
when it is-also involved as an advocate for the Agency's official
position, such as in an adjudicatory hearing on a permit
appeal, it may be necessary for the the Regional Counsel,
after consultation with the Office of General Counsel, to
make arrangements for separate attorney representation of
the different interests.
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-10-
VII. ENFORCEMENT.
A. Top Priority to Enforcement Work. The Office of
Regional Counsel is expected to give top priority to enforcement
work, while at the came time carrying out its general legal
duties.
B. Establishing Lead Attorney Roles in Enforcement
Matters. Whenever both the Office of Regional Counsel and
the Office of Enforcement Counsel are to become involved in
a particular enforcement litigation matter, a lead attorney
shall be assigned to manage and coordinate the litigation
activities according to the following principles:
1. Lead Attorney Role Defined. Having the lead attorney
role means that the lead attorney shall generally manage the
Agency's participation in the conduct of the matter. In
particular, he shall: (a) act as the liaison with the Department
of Justice and/or the U.S. Attorney on the matter; (b) coordinate
the development of the enforcement strategy and the preparation
of all documents; and (c) take the lead in negotiations with
opposing parties.
2. Basis for Assignments. The lead attorney role
shall be assigned on the following basis:
(a). Regional Matters. Normally, the Office of
Regional Counsel shall take the lead on matters arising in
he Regions, except where the Regional Counsel and the
.he appropriate supervisor within the Office of Enforcement
Counsel agree/ after conferring at an early point in the develop-
ment of the matter, that the matter is of overriding national
significance and that the lead role should be assigned to
an attorney in the Office of Enforcement Counsel. In cases
where the Regional Counsel and the supervisor within the
Office of Enforcement Counsel are unable to agree as to
which level should be assigned the lead role, the matter
will be resolved by the Associate Administrator for Legal
and Enforcement Counsel and General Counsel.
(b). Enforcement/Defensive Matters: Appeals. In
instances where enforcement litigation and defensive litigation
arise involving essentially the same parties and the same set
of circumstances, the Associate Administrator for Legal and
Enforcement Counsel and General Counsel shall determine the
allocation of roles (including, where deemed necessary, the
establishment of a lead attorney for the entire matter) so
as to ensure that both aspects of the matter are properly
represented and that the positions of the respective Offices
are well-coordinated. Generally, the Office of General
Counsel (or the appropriate Office of Regional Counsel)
shall have the lead on all matters before Courts of Appeals,
even though the lead on the natter was previously taken by
-------
-li-
the Office of Enforcement Counsel. The Associate Administrator
for Legal and Enforcement Counsel and General Counsel may
make exceptions to this rule in the case of individual enforcement
programs.
3. Obligations to Other Attorneys. The lead attorney
shall provide other Agency attorneys assigned to the matter with
adequate opportunities to contribute to the litigation effort,
including participation as supporting counsel in the development
of the litigation strategy« the preparation of legal documents,
and the conduct of negotiations with opposing parties.
VIII. GENERAL LEGAL MATTERS? RELATIONSHIPS WITH OGC..
The reorganization will not change the working relationships
between the Office of General Counsel and the Offices of
Regional Counsel. All existing lines of communication and
all existing procedures should continue to be used until
further notice.
IX. STEPS TO TAJCE IN IMPLEMENTING THIS GUIDANCE.
A. Interim Steps. As stated above, a Region should
take interim steps towards the final reorganization of the
Office of Regional Counsel before the new SES Regional Counsel
is in place. Such steps may include such matters as selecting
the organizational option, making tentative media team leader
selections, and moving attorneys into media teams. Specific
Bequests should be directed to me in writing by the incumbent
egional Counsel or Acting Regional Counsel, together with a
orief explanation for the proposal.
B. Reorganization Plans. When the permanent SES Regional
Counsel is in place, he should begin at once to prepare a
reorganization plan for the final implementation of this
guidance. The plan must have the written concurrence of
the Regional Administrator. It should include at least the
following:
1. An organization chart showing the structure of the
Office, based upon one of the four options attached to this
memorandum. Larger Regions may establish sub-units within media
groups. If official branches or sections are to be established,
they should be indicated on the chart.
2. A list of the personnel of the Office.*, showing their
current grade levels, titles and areas of responsibility.
3. A list of the new positions to be established,
together with a list of changes, if any, to be made in the
attached standard position descriptions. The position
descriptions may be altered to fit unusual situations, but
no such alteration may be made without my concurrence and
-------
-12-
consultation with the Headquarters Personnel Office. Proposed %
changes in the position descriptions should be stated in the
reorganization plan and my approval of the plan will be my
concurrence with thase changes.
4. A brief description of the procedures to be
followed in selecting personnel to fill the newly-created
positionn.
5. A plan for meeting the needs of any personnel whose
existing grade levels and/or skills do not fit into the organi-
zational structure to be established under the reorganization.
Individual cases should be discussed with me during the preparation
of the reorganization plan.
6. A timetable for implementing the plan.
C. Submission of Reorganization Plans and Proposals for
Interim Steps. £ac"\ SES Regional Counsel should submit a final
reorganization plan for my approval within three weeks after
the date of this memorandum or three weeks after the date
that he begins work in his new position, whichever is later.
In Regions where an SES Regional Counsel is not expected to
be in place by June 1, 1982, requests for approval of interim
steps should be submitted by that date.
D. Approval of Reorganization Plans and Proposals for
'nterim Steps. I must approve reorganization plans and
proposals for interim steps before they are implemented. This
means that no new positions may be established or personnel
selections made prior to approval.
Questions on this g-jidance may be referred to Robert C. Thompson,
Associate General Counsel for Regional Coordination, at 382-4148.
For information and guidance on the legal issues arising out of
proposed personnel changes, contact Gerald H. Yamada at 755-0768.
-------
GENERAL COUNSEL
I
Regional Gbunsel
±
Senior Associate Regional Counsel
for Enforcement
o Coordinates enforcement natters
o Leads one of the media teams
o Acts as Regional Counsel in
Regional Counsel's absence
o o o o o o o oooooooooo
o o
Regional Administrator
Secretary
o o o o o o
o
Air Team
Solid Waste
and Emergency
Response Team
feter Team
Grants, Contracts
and General
Administration Team
Leader:
xriate Regional
Jisel
Staff Attorneys;
Assistant Regional
Counsels and
General Attorneys
Clerical
Hajor Functions:
o Air general
legal natters
o Air enforce
sent matters
o Air litigation
Team Leader;
Associate Regional
Counsel
Staff Attorneys;
Assistant Regional
Counsels and
General Attorneys
Clerical
Major Functions:
O RCRA, Superfund,
Besticides, Toxics:
- General legal
aattezs
- Dif orceaent
- Litigation
Team Leader:
Associate Regional
Connscl
Staff Attorneys;
Assistant Regional
Counsels and
General Attorneys
Clerical
Major Functions:
o Water general
legal natters
o Water enforce-
ment matters
o Water litigation
Team Leader:
l
Associate Regional
Counsel
Staff Attorneys;
Assistant Regional
Counsels and
General Attorneys
Clerical
Major Functions;
o Grants, etc.:
- General legal
natters
- Litigation
direct reporting; o o o * coordination; - - - » attorney-client relationship
-------
GENERAL COUNSEL
1
Ragional Counsel
I
Senior Associate Regional Counsel
for Deforcement
o Coordinates enforcement matters
o Leads one of the media teams
o Acts as Regional Counsel in
Regional Counsel's abser
oooooooooooooo
o o
Air Team
Team Leader:
Associate Regional
Counsel
Staff Attorneys:
Assistant Regional
Counsels and
General Attorneys
Clerical
Major Functions;
o Air general
legal natters
o Air enforce-
ment natters
o Air litigation
Regional Administrator
Secretary
o o o
oooooooo
o
Solid Waste
and Emergency
Response Team
Team Leader;
Associate Regional
Counsel
Staff Attorneys:
Assistant Regional
Counsels and
General Attorneys
Clerical
Major Functions;
o RCRA, Superfundr
Pesticides, Toxics:
- General legal
natters
- Enforcement
- Litigation
Water Team
Tteam Leader;
Associate Regional
Counsel
Staff Attorneys;
Assistant Regional
Counsels and
General Attorneys
Clerical
Major Functions;
o Water, Grants, Contracts
and General Administration
General legal matters
- Enforcement (water)
- Litigation
direct reporting; o o o « coordination; - - - attorney-client relationship
-------
GENERAL COUNSEL
I
Ragional Counsel
1
* Senior Associate Regional Counsel
for Enforcement
o* Coordinates enforcement natters
o Leads one of the media teams
o Acts as Regional Counsel in
Regional Counsel's absence
ooooooooooooooooo
Regional Administrator
Secretary
o o o o o o
Air Team
Solid Waste
and Emergency
Response Team
Water Team
Grants, Contracts
and General Admin-
istration Team
Team Leader;
Associate Regional
"-unsel
Major Functions;
o Air general
legal natters
o Air enforce-
ment matters
o Air litigation
Staff Attorney Paol:
Team Leader;
Associate Regional
Counsel
Major Functions;
O RCRA, Superfund,
Pesticides* Toxics:
General legal
natters
- Enforcement
- Litigation
Team Leader;
Associate Regional
Counsel
Major Functions;
o Water general
legal matters
o Water enforce-
ment matters
o Water litigation
Clerical
Team Leader:
Associate Regional
Major Functions;
o Grants, etc.:
General legal
natters
- Litigation
Assistant Regional Counsels
and General Attorneys
KEY:
direct reporting; o o o « coordination; - - - * attorney-client relationship
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF GENERAL COUNSEL
OFFICES OF REGIONAL COUNSEL
BENCHMARK POSITION DESCRIPTION
GS-11 General Attorney
(General Attorney)
NOTE: This position description has been reviewed by the
Headquarters Office of Personnel and has been
approved for use in the Offices of Regional
Counsel. In cases where the duties of the
incumbent would not be sufficiently described
. in this benchmark position description, the
Regional Classification Specialist is authorized
to make appropriate changes, after conferring
the the Headquarters Office of Personnel and
with the concurrence of the General Counsel.
-------
General Attorney
CS-905-11
I. Introduction.
Serves as a General Attorney in the Office of Regional
Counsel. Provides legal advice and assistance on legal
matters, including enforcement natters, arising in the Region.
Advice, assistance and recommendations are provided to the
Regional Counsel,, aenior attorneys and Regional program
managers. Has an attorney-client relationship with all
Regional program managers for whom work is performed and
with the Office of Enforcement Counsel in Headquarters.
ZZ. Major Duties and Responsibilities.
At this level, the General Attorney will be assigned to work
on the least complex and routine matters which can be resolved
with standard research and analysis, and with a moderate
degree of expertise. Examples of this includes the review
of routine revisions on state implementation plans under the
Clean Air Act, participation in preparation of the less complex
notices of violation and administrative orders,- conduct of the
less complex administrative and judicial litigation, and
preparation of advice on routine and less complex legal
issues.
A. Legal Research and Problem Resolution. Researches
the legal questions which arise under regulations, ;
lawsuits, enforcement actions, executive orders and
other administrative actions involving major Federal
statutes affecting the Agency's programs, which may
include such statutes as the Clean Water Act, the Clean
Air Act, the Toxic Substances Control Act, the Safe
. Drinking Water Act, the Resource Conservation and
: Recovery Act, the National Environmental Policy Act,
the Comprehensive Environmental Response, Compensation
and Liability Act and the Federal Insecticide, Fungicide
and Rodenticide Act (in each case as from time to time
amended). -
B. General Legal Advice. Acting through the Regional
Counsel or an Associate Regional Counsel, provides the
Regional Administrator, Deputy Regional Administrator
and the Regional Divisions and Offices with general
legal advice concerning those Regional matters which
have been assigned.
C. Legal Advice on Enforcement Matters. Provides
legal advice on Regional enforcement matters. Assists
in the preparation of legal correspondence, notices
of violation, administrative orders, litigation
-------
GS-905-11
referrals and other enforcement documents and reviews
such documents for legal sufficiency and consistency with
Agency legal interpretations and policy guidance. Conducts
investigations into criminal matters in conjunction
with Agency criminal investigatory personnel and law
enforcement agencies*
D. Legal Advice to Grant Programs. Provides legal
advice to managers of EPA grant programs, including the
construction grants program administered under Title XX
of the Clean Water Act. Advises on the eligibility for
Agency funding of cost items under Agency grants* including
cost overruns by contractors on Agency-funded projects.
Works closely with the Agency's Office of Inspector
General in resolving problems arising under audit activities
and investigations. Drafts special grant conditions to
cover unusual or unique situations. Assists state
attorneys in interpreting statutes and regulations
administered by the Agency, advising on the handling of
claims matters and generally serving the needs of programs
which have been delegated by the Agency to state agencies.
Prepares final Agency decisions on bid protests arising
under grantee procurement. Conducts the Region's participa-
tion in grant appeal proceedings.
E. Drafting of Determinations, Regulations, Notices, etc.
Drafts and reviews final Agency determinations* proposed *
and final regulations, notices and other documents to .
be published in the Federal Register, including Agency
actions on state air pollution laws, designations of
sole source aquifers under the Safe Drinking Water Act,
approvals and authorizations of state programs under
the Clean Water Act, the Clean Air Act, the Resource
Conservation and Recovery Act, the Federal Insecticide,
Fungicide and Rodenticide Act and other Federal environ-
mental statutes.
F. Litigation Matters. Coordinates defensive and enforce-
ment litigation in connection with specific Regional
matters arising under the statutes referred to above. -
Assists in the conduct of discovery and prepares drafts
of motions, briefs, interrogatories, and other documents
in connection with cases in litigation. Works closely
with attorneys in the Offices of General Counsel and
Enforcement Counsel at Headquarters and the Department
of Justice or U.S. Attorneys. Assists D.S. Attorneys
in seeking indictments in criminal matters and in prosecuting
such matters. Coordinates with state attorneys general.
Represents the Region in administrative proceedings of
EPA and other agencies.
-------
General Attorney
GS-905-11
G. Negotiation and Informal Dispute Resolution. Represents
the Region in its dealings with outside parties, including
negotiation of bilateral agreements, consent orders and
judgements, and memoranda of understanding. Represents
the Region in negotiating the settlement of disputed matters
In many cases, this avoids protracted and expensive
litigation and facilitates expeditious administration
of Agency programs*
H. Liaison with Offices of General Counsel and Enforcement
Counsel.Serves as liaison between the Region and the
Offices of General Counsel and Enforcement Counsel to
provide an effective channel of communication in order
to assure that the Region obtains legal judgments from
the Office of General Counsel and policy advice from
the Office of Enforcement Counsel and also to assure
that, .such Offices are able to base such judgments and
such advice upon accurate perceptions of the pertinent
facts and Regional program objectives.
X. Other Duties. Performs other duties as assigned.
III.* Supervisory Controls.
The General Attorney reports to the Regional Counsel. .
The General Attorney has an attorney-client relationship - '
with Regional program managers and the Office of Enforcement
Counsel in Headquarters, Areas of responsibility are assigned
by the Regional Counsel. Work assignments are made by the
Regional Counsel or by senior attorneys who will direct and
coordinate the General Attorney's work in specific subject
matter areas. In some cases, work is performed at the request
of Regional program managers. The work of the General Attorney
.is closely supervised by senior attorneys on a case-by-case
basis to assure that a correct approach is made to research,
analysis and formulation of legal advice. Finished work is
carefully'reviewed in almost all cases to assure consistency
with Agency policy, precedential effect and overall quality.
XV. Qualifications.
The General Attorney must have the equivalent of a JO
or LLB degree from an accredited law school and must be a
member of the bar. Other qualification requirements may be
established by the Regional Counsel depending upon the needs
of the Office.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF GENERAL COUNSEL
OFFICES OF REGIONAL COUNSEL
BENCHMARK POSITION DESCRIPTION
GS-12 General Attorney
(Assistant Regional Counsel)
NOTE; This position description has been reviewed by the
Headquarters Office of Personnel and has been
approved for use in the Offices of Regional
Counsel. In cases where the duties of the
incumbent would not be sufficiently described
in this benchmark position description* the
Regional Classification Specialist is authorized
to make appropriate changes, after conferring
the the Headquarters Office of Personnel and
with the concurrence of the General Counsel.
-------
General Attorney
GS-905-12
I. Introduction.
Serves as an Assistant Regional Counsel in the Office of
Regional Counsel. Provides legal advice and assistance and
policy recommendations on legal matters, including enforcement
nattersr arising in the Region. Advice, assistance and
recommendations are provided to the Regional Counsel* senior
attorneys and Regional program managers. Has an attorney-client
relationship with all Regional program managers for whom
work is performed and with the Office of Enforcement Counsel
in Headquarters.
XI. Major Duties and Responsibilities.
At this level, the Assistant will be assigned to work on
a broad range of legal problems and issues affecting the Agency's
programs. These matters require a thorough knowledge of appli-
cable laws and regulations, and may require extensive legal
research and analysis, and consideration of complicated
factual and policy issues. Examples of these include: the
review of a broad range of revisions of state implementation
plans under the Clean Air Act, preparation of notices of
violation and administrative orders which affect large amounts
of money, or involve a broad range of issues, and the conduct of
complicated administrative and judicial litigation.
A. Legal Research and Problem Resolution. Researches
the legal questions which arise under regulations,
lawsuits, enforcement actions, executive orders and
other administrative actions involving major Federal
statutes affecting the Agency's programs, which nay
include such statutes as the Clean Water Act, the Clean
Air Act, the Toxic Substances Control Act, the Safe :
Drinking Water Act, the Resource Conservation and
Recovery Act, the National Environmental Policy Act,
the Comprehensive Environmental Response, Compensation
and Liability Act and the Federal Insecticide, Fungicide
and Rodenticide Act (in each case as from time to time
amended).
B. General Legal Advice and Policy Recommendations.
Acting through the Regional Counsel or an Associate
Regional Counsel, provides the Regional Administrator,
Deputy Regional Administrator and the Regional Divisions
and Offices with general legal advice and policy recom-
mendations concerning those Regional matters which have
been assigned.
-------
General Attorney
GS-905-12
C« Legal Advice and Policy Recommendations on Enforcement
Matters. Provides legal advice and policy recommendations
on Regional enforcement matters. Assists in the preparation
of major legal correspondence, notices of violation,
administrative orders, litigation referrals and other '
enforcement documents and reviews such documents for legal
sufficiency and consistency with Agency legal interpretations
and policy guidance. Conducts investigations into criminal
matters in conjunction with Agency criminal investigatory
personnel and law enforcement agencies.
D. Legal Advice and Policy Recommendations to Grant
Programs.Provides legal advice and policy recommendations
to managers of EPA grant programs, including the construction
grants program administered under Title II of the Clean
Water Act. Advises on the eligibility for Agency funding
of cost items under Agency grants, including cost overruns
by contractors on Agency-funded projects. Works closely
with the Agency's Office of Inspector General in resolving
problems arising under audit activities and investigations.
Drafts special grant conditions to cover unusual or
unique situations. Assists state attorneys in inter-
preting statutes and regulations administered by the
Agency, advising on the handling of claims matters and
generally serving the needs of programs which have been
delegated by the Agency to state agencies. Prepares *
final Agency decisions on bid protests arising under
grantee procurement. Conducts the Region's participation
in grant appeal proceedings.
E. Drafting of Determinations, Regulations, Notices, etc.
Drafts and reviews final Agency determinations, proposed
and final regulations, notices and other documents to
be published in the Federal Register, including Agency
actions on state air pollution laws, designations of
sole source aquifers under the Safe Drinking Water Act,
approvals and authorizations of state programs under
the Clean Water Act, the Clean Air Act, the Resource
Conservation and Recovery Act, the Federal Insecticide,
Fungicide and Rodenticide Act and other Federal environ-
mental statutes.
F. Litigation Matters. Coordinates defensive and enforce-
ment litigation in connection with specific Regional
matters arising under the statutes referred to above.
Conducts discovery and prepares motions, briefs and
other litigation documents. Appears before Federal
courts from time to time to conduct trials, hearings
and oral arguments. Works closely with attorneys in the
Offices of General Counsel and Enforcement Counsel at
Headquarters and the Department of Justice or D.S.
Attorneys. Assists U.S. Attorneys in seeking indictments
-------
General Attorney
GS-905-12
in criminal natters and in prosecuting such matters.
Coordinates with state attorneys general. Represents
the Region in administrative proceedings of EPA and
other agencies.
G. Negotiation and Informal Dispute Resolution.
Represents the Region in its dealings with outside
parties, including negotiation of bilateral agreements,
consent orders and judgements, and memoranda of understanding.
Represents the Region in negotiating the settlement of
disputed matters. In many cases, this avoids protracted
and expensive litigation and facilitates expeditious
administration of Agency programs.
B. Representation of the Region. Represents the Region
at conferences and meetings held with other Federal
departments and agencies, Congressional committees and
.individual congressmen and senators, the General Accounting
Office, governors of states and staff offices of governors,
state and local officials, representatives of private
industry and farm groups, etc. and in this.capacity is
required to give expert legal advice with respect to
many novel legal situations and problems arising from
the administration of Regional programs. Prepares and
delivers testimony to state legislative bodies in connection
with their deliberations on assumption of responsibilities »
for programs to be delegated by the Agency. '
I. Liaison vith Offices of General Counsel and Enforcement
Counsel. Serves as liaison between the Region and the
Offices of General Counsel and Enforcement Counsel to
provide an effective channel of communication in order
to assure that the Region obtains legal judgments from
the Office of General Counsel and policy advice from
the Office of Enforcement Counsel and also to assure.
that such Offices are able to base such judgments and
such advice upon accurate perceptions of the pertinent
facts and Regional program objectives.
J. Lead Region Matters. Serves as a coordinator of
one or more subject matter areas of interest to the
Offices of Regional Counsel. Maintains specialized
expertise in such area[s] and serves as a consultant to
other attorneys in the Agency. May manage a task force
of Regional attorneys in seeking solutions to common
legal problems or in preparing guidance documents,
model agreements, regulations, pleadings, etc. In this
capacity, serves as the liaison between the Office of
General Counsel and the Offices of Regional Counsel.
Arranges conference calls, meetings and other means of
exchanging information among Regional attorneys.
-------
General Attorney
GS-905-12
K. Coordination of Work of Junior Attorneys. Where the
Assistant is responsible for coordinating the work of
junior attorney-advisors, the Assistant reviews all
major efforts to assure that written material is clear,
precise and of high quality/ that work is completed on
time, and that oral presentations, whether before courts
or other public bodies, are of high quality.
L. Other Duties. Performs other duties as assigned.
III. Supervisory Controls.
The Assistant Regional Counsel reports to the Regional
Counsel. The Assistant has an attorney-client relationship
with Regional program managers and the Office of Enforcement
Counsel in Headquarters. Areas of responsibility are assigned
by the Regional Counsel. Work assignments are made by the
Regional Counsel or by senior attorneys who will direct and
coordinate the Assistant's work in specific subject matter
areas. In some cases, work is performed at the request of
Regional program managers. Work will be discussed generally
with senior attorneys while in process and finished work
will generally be reviewed by senior attorneys to assure
consistency with Agency policy, precedential effect and
overall quality.
IV. Qualifications.
The Assistant must have the equivalent of a JD or
LLB degree from an accredited law school and must be a member
of the bar. Other qualification requirements may be established
by the Regional Counsel depending upon the needs of the Office.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF GENERAL COUNSEL
OFFICES OF .REGIONAL COUNSEL
BENCHMARK POSITION DESCRIPTION
GM-13 General Attorney
(Assistant Regional Counsel)
NOTE: This position description has been reviewed by the
Headquarters Office of Personnel and has been
approved for use in the Offices of Regional
Counsel. In cases where the duties of the
incumbent would not be sufficiently described
in this benchmark position description, the
Regional Classification Specialist is authorized
to make appropriate changes, after conferring
the the Headquarters Office of Personnel and
with the concurrence of the General Counsel*
-------
*«/
General Attorney
GM-905-13
I. Introduction.
Serves as an Assistant Regional Counsel in the Office of
Regional Counsel. Provides legal advice and assistance and
policy recommendations on legal matters, including enforcement
matters, arising in the Region. Advice, assistance and
recommendations are provided to the Regional Counsel, senior
attorneys and Regional program managers. Has an attorney-client
relationship with all Regional program managers for whom
work is performed and with the Office of Enforcement Counsel
in Headquarters.
II. Major Duties and Responsibilities.
At this level, the Assistant will be assigned to work on
highly complex and unusual matters. These matters require a
very high degree of expertise on the part of the Assistant and
may require extensive legal research, by more than one attorney
and on a number of subjects, and analysis of a wide variety
of issues, together with consideration of highly complicated
factual and policy issues in response to the specialized
needs of program clients. Examples of these include: the
review of highly complex and extremely unusual revisions of
state implementation plans under the Clean Air Act, participation *
in the preparation of highly complex and unusual notices of
violation and administrative orders, and the conduct of
highly complex administrative and judicial litigation.
A. Legal Research and Problem Resolution. Researches
the legal questions which arise under regulations,
lawsuits, enforcement actions, executive orders and
other administrative actions involving major Federal
'statutes affecting the Agency's programs, which may ,
include such statutes as the Clean Water Act, the Clean
Air Act, the Toxic Substances Control Act, the Safe
Drinking Water Act, the Resource Conservation and
Recovery Act, the National Environmental Policy Act,
the Comprehensive Environmental Response, Compensation
and Liability Act and the Federal Insecticide, Fungicide
and Rodenticide Act (in each case as from time to time
amended)
B. General Legal Advice and Policy Recommendations.
Acting through the Regional Counsel or an.Associate
Regional Counsel, provides the Regional Administrator,
Deputy Regional Administrator and the Regional Divisions
and Offices with general legal advice and policy recom-
mendations concerning those Regional matters which have
been assigned*
-------
General Attorney
GM-905-13
C. Legal Advice and Policy Recommendations on Enforcement
Hatters. Provides legal advice and policy recommendations
on Regional enforcement matters. Assists in the preparation
of major legal correspondence, notices of violation,
administrative orders, litigation referrals and other
enforcement documents and reviews such documents for
legal sufficiency and consistency with Agency legal
interpretations and policy guidance. Conducts investi-
gations into criminal matters in conjunction with Agency
criminal investigatory personnel and law enforcement
agencies*
D. Legal Advice and Policy Recommendations to Grant
Programs. Provides legal advice and policy recommendations to
managers of EPA grant programs, including the construction
grants program administered under Title XI of the Clean
Water' Act. Advises on the eligibility for Agency funding
of cost items under Agency grants, including cost overruns
by contractors on Agency-funded projects. Works closely
with the Agency's Office of Inspector General in resolving
problems arising under audit activities and investigations.
Drafts special grant conditions to cover unusual or
unique situations. Assists state attorneys in inter-
preting statutes and regulations administered by the
Agency, advising on the handling of claims matters and
generally serving the needs of programs which have been
delegated by the Agency to state agencies. Prepares
final Agency decisions on bid protests arising under
grantee procurement. Conducts the Region's participation
in grant appeal proceedings.
E. Drafting of Determinations, Regulations, Notices, etc.
Drafts and reviews final Agency determinations, proposed
and final regulations, notices and other documents to
be published in the Federal Register, including Agency
actions on state air pollution laws, designations of
sole source aquifers under the Safe Drinking Water Act, -
approvals and authorizations of state programs under
the Clean Water Act, the Clean Air Act, the Resource
Conservation and Recovery Act, the Federal Insecticide,
Fungicide and Rodenticide Act and other Federal environ-
mental statutes.
F. Litigation Matters. Coordinates defensive and enforce-
ment litigation in connection with specific Regional
matters arising under the statutes referred to above.
Conducts discovery and prepares motions, briefs and
other litigation documents. Appears before Federal
courts from time to time to conduct trials, hearings
-------
General Attorney
©1-905-13
and oral arguments. Works closely with attorneys in the
Offices of General Counsel and Enforcement Counsel at
Headquarters and the Department of Justice or U.S.
Attorneys. Assists D.S. Attorneys in seeking indictments
'in criminal matters and in prosecuting such matters.
Coordinates with state attorneys general. Represents
the Region in administrative proceedings of EPA and
other agencies.
G. Negotiation and Informal Dispute Resolution.
Represents the Region in its dealings with outside
partiesr including negotiation of bilateral agreements*
consent orders and judgements, and memoranda of understanding.
Represents the Region in negotiating the settlement of
disputed matters. In many cases, this avoids protracted
and expensive litigation and facilitates expeditious
administration of Agency programs.
H. Hearing Officer Duties. Serves as hearing officer
in hearing and deciding matters brought before the
Agency and assists the Regional Administrator in preparing
formal administrative decisions. Some of these decisions
(e.g. bid protest decisions arising under the construction
grants program) are final Agency action subject to
direct review in the Federal courts. At the request of
the Regional Counsel, performs responsibilities which '
the Administrator has delegated to the Regional Counsel, '
such as rendering decisions on confidentiality of business.
information under 40 C.F.R. Part 2, which decisions
also become final Agency action.
Z. Representation of the Region. Represents the Region
at conferences and meetings held with other Federal
departments and agencies, Congressional committees and
individual congressmen and senators, the General Accounting
Office, governors of states and staff offices of governors,
state and local officials, representatives of private
industry and farm groups, etc. and in this capacity is '-'
required to give expert legal advice with respect to
many novel legal situations and problems arising from
the administration of Regional programs. Prepares and
delivers testimony to state legislative bodies in connection
with their deliberations on assumption of responsibilities
for programs to be delegated by the Agency.
J. Liaison with Offices of General Counsel and Enforcement
Counsel.Serves as liaison between the Region and the Offices
of General Counsel and Enforcement Counsel to provide an
effective channel of communication in order to assure that
the Region obtains legal judgments from the Office of General
-------
General Attorney
©1-905-13
Counsel and policy advice from the Office of Enforcement
Counsel and also to assure that such Offices are able to
base such judgments and such advice upon accurate perceptions
of the pertinent facts and Regional program objectives.
K. Lead Region Matters. Serves as a coordinator of one
or more subject matter areas of interest to the Offices of
Regional Counsel. Maintains specialized expertise in
such area[s] and serves as a .consultant to other attorneys
in the Agency. May manage a task force of Regional attorneys
in seeking solutions to common legal problems or in preparing
guidance documents, model agreements, regulations, pleadings,
etc. In this capacity, serves as the liaison between the
Office of General Counsel and the Offices of Regional
Counsel. Arranges conference calls, meetings and other
means of exchanging information among Regional attorneys.
L. Coordination of Work of Junior Attorneys. Where the
Assistant is responsible for coordinating the work of
junior attorney-advisors, the Assistant reviews all
major efforts to assure that written material is clear,
precise and of high quality, that work is completed on
time, and that oral presentations, whether before courts
or other public bodies, are of high quality.
M. Other Duties. Performs other duties as assigned. .
III. Supervisory Controls.
The Assistant Regional Counsel reports to the Regional
Counsel. The Assistant has an attorney-client relationship
with Regional program managers and the Office of Enforcement
Counsel in Headquarters. Areas of responsibility are assigned
by the Regional Counsel. Work assignments are made by the
Regional Counsel or by senior attorneys who will direct and
.coordinate the Assistant's work in specific subject matter
areas. In some cases, work is performed at the request of
Regional program managers. Completed work is normally assumed
to be accurate with respect to legal citations, treatment of
facts, and other aspects of technical treatment. However, all
written work is subject to review for soundness of approach and
argument, application of legal principles, and consistency
with governing policies, procedures, and regulations of the
Agency.
IV. Qualifications.
The Assistant must have the equivalent of a JD or LLB
degree from an accredited law school and must be a member of
the bar. Other qualification requirements may be established
by the Regional Counsel depending upon the needs of the Office.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF GENERAL COUNSEL
OFFICES OF REGIONAL COUNSEL
BENCHMARK POSITION DESCRIPTION
GM-14 General Attorney*
(Associate Regional Counsel)
NOTE: This position description has been reviewed by the
Headquarters Office of Personnel and has been approved
for use in the Offices of Regional Counsel. In
cases where the duties of the incumbent would not be
sufficiently described in this benchmark position
description, the Regional Classification Specialist
is authorized to make appropriate changes, after
conferring the the Headquarters Office of Personnel
and with the concurrence of the General Counsel.
Attached to this position description are two cover .sheet*.
The cover sheet indicating that the position will be
filled by a GM-13 ia intended for use in those situations
where the incumbent is not yet entitled to assume a
GH-14 position due to inadequate time in grade. When
the time in grade requirements have been fulfilled,
the incumbent will be eligible for promotion to the
GM-14 level. The second cover sheet may be used at
that point.
Depending upon the organizational structure of the Office of
Regional Counsel, this position could be classified as that
of a Supervisory General Attorney.
-------
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-------
General Attorney*
GM-905-14
I. Introduction.
Serves as an Associate Regional Counsel in the Office of
Regional Counsel. The Associate has responsibility for
providing legal advice and assistance and policy recommendations
to the Regional Counsel and Regional program managers in
major areas of responsibility.* The Associate coordinates
and directs the entire workload of"the Office in assigned
areas of responsibility, and is responsible for the work of
other attorneys in the Office who are assigned to work on
matters within such areas of responsibility.
II. Major Duties and Responsibilities.
At this level* the Associate will be responsible for all
legal aspects of an entire media area within the Region. These
matters will involve a wide variety of highly complex and
unusual matters requiring extensive knowledge and a very
high degree of expertise as well as extensive legal research
and analysis, together with consideration of highly complicated
factual and policy issues. The Associate will be the principal
attorney in the Region for interpreting for the Regional
Administrator and the Regional program managers a substantial
body of Agency regulations and defending these regulations
and Agency actions before Federal trial and appellate courts.
Matters assigned may have precedential effects, may have the
effect of substantially broadening or restricting the Agency's
activities and may have an important impact on major industries
in the Region. These natters often involve substantial sums
of money and often are rigorously contested by some of the
nation's most distinguished, capable and highly paid attorneys.
The Associate will direct and coordinate the activities of junior
attorneys assigned to help carry out the specific elements of
the Associates duties and responsibilities.
A. Legal Research and Problem Resolution. Researches
and resolves the legal questions which arise under all
regulations, lawsuits, enforcement actions, executive -
orders and other administrative actions involving major
Federal statutes affecting the Agency's programs, which
may include (depending upon the specific areas assigned
by the Regional Counsel) such statutes as the Clean
Water Act, the Clean Air Act, the Toxic Substances
Control Act, the Safe Drinking Water Act, the Resource
Conservation and Recovery Act* the National Environmental
Policy Act, the Comprehensive Environmental Response,
Compensation and Liability Act and the Federal Insecticide,
Fungicide and Rodenticide Act (in each case as from
time to time amended). In areas assigned by the Regional
Counsel, is the focal point within the Region for resolution
* May be Supervisory General Attorney if appropriate.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF GENERAL COUNSEL
OFFICES OF REGIONAL COUNSEL
BENCHMARK POSITION DESCRIPTION
GM-14 General Attorney*
(Associate Regional Counsel)
NOTE: This position description has been reviewed by the
Headquarters Office of Personnel and has been approved
for use in the Offices of Regional Counsel. In
cases where the duties of the incumbent would not be
sufficiently described in this benchmark position
description, the Regional Classification Specialist
is authorized to make appropriate changes, after
conferring the the Headquarters Office of Personnel
and with the concurrence of the General Counsel.
Attached to this position description are two cover sheets,
The cover sheet indicating that the position will be
filled by a GM-13 is intended for use in those situations
where the incumbent is not yet entitled to assume a
GM-14 position due to inadequate time in grade. When
the time in grade requirements have been fulfilled,
the incumbent will be eligible for promotion to the
GM-14 level. The second cover sheet may be used at
that point.
*Depending upon the organizational structure of the Office of
Regional Counsel, this position could be classified as that
of a Supervisory General Attorney.
-------
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-------
General Attorney
GM-905-14
of legal Issues arising under such statutes (except for
matters of national importance which require consultation
with the Offices of General Counsel or Enforcement
Counsel).
B. General Legal Advice and PolicyRecommendations.
Either acting directly or through the Regional Counsel,
directly, provides the Regional Administrator, Deputy
Regional Administrator and the Regional Divisions and
Offices with general legal advice and (upon request)
policy recommendations concerning thosie Regional programs,
operations and activities in areas assigned.by the
Regional Counsel BO that their major decisions are made
with applicable legal considerations in mind*
C. Legal Advice and Policy Recommendations on Enforcement
Matters.Provides legal advice and policy recommendations
to the Regional program managers responsible for enforcement
matters. Assists in the preparation of major legal
correspondence, notices of violation, administrative
orders, litigation referrals and other enforcement
documents and reviews such documents for legal sufficiency
and consistency with Agency legal interpretations and
policy guidance. Is responsible for assuring that the
Agency's centralized data reporting systems are kept
current with information on Regional enforcement matters. "-
Conducts Investigations into criminal matters in conjunction
with agency criminal investigatory personnel and law
enforcement agencies.
D. Legal'Advice and Policy Recommendations to Grant
Programs. Provides legal advice and policy recommendations
to managers of Agency grant programs, including the
construction grants program administered under Title II
of the Clean Water Act. Advises on the eligibility for
Agency funding of cost items under Agency grants, including
cost overruns by contractors on Agency-funded projects. ;
Works closely with the Agency's Office of Inspector
General in resolving problems arising under audit activities
and investigations. Drafts special grant conditions to
cover unusual or unique situations. Assists state
attorneys in interpreting statutes and regulations
administered by the Agency, advising on the handling of
claims matters and generally serving the needs of programs
which have been delegated by the Agency to state agencies.
Prepares final Agency decisions on bid protests arising
under grantee procurement. Conducts the Region's partici-
pation in grant appeal proceedings.
-------
General Attorney
GM-905-14
E. Drafting of Determinations, Regulations, Notices, etc.
Drafts and reviews final Agency determinations, proposed
and final regulations, notices and such other documents
to be published in the Federal Register, including
Agency actions on state air pollution plans, designations
of sole source aquifers under the Safe Drinking Water
Act, approvals and authorizations of state programs under
the Clean Water Act, the Clean Air Act, the Resource
Conservation and Recovery Act, the Federal Insecticide, .
Fungicide and Rodenticide Act and other Federal environ-
mental statutes.
F. Litigation Matters. Manages and coordinates defensive
and enforcement litigation resulting from the Region's
activities under the statutes referred to above. Conducts
discovery and prepares motions, briefs and other litigation
documents. Appears before courts from time to time to
conduct trials, hearings and oral arguments. Works
closely vith the Offices of Enforcement Counsel and
General Counsel at Headquarters and the Department of
Justice or U.S. Attorneys. Assists U.S. Attorneys in
seeking indictments in criminal matters and in prosecuting
such matters. Coordinates vith state attorneys general.
Represents the Region in administrative proceedings of
EPA and other agencies.
Go Negotiation and Informal Dispute Resolution. Represents
the Region in its dealings with outside parties, including
negotiation of bilateral agreements, consent orders and
judgments, and memoranda of understanding. Represents
the Region in negotiating the settlement of disputed
matters so as to avoid protracted and expensive litigation
and facilitate expeditious administration of Agency
.programs.
H. Hearing Officer Duties. Serves as hearing officer
in hearing and deciding matters brought before the
Agency and assists the Regional Administrator in preparing
formal administrative decisions. Some of these decisions
(e.g. bid protest decisions arising under the construction
grants program) are final Agency action subject to
direct review in the Federal courts. At the request of
the Regional Counsel, performs responsibilities which
the Administrator has delegated to the Regional Counsel,
such as rendering decisions on confidentiality of business
information under 40 C.F.R. Part 2, which decisions
also become final Agency action.
I. Representation of the Region. Represents the Region
at conferences and meetings held with other Federal
departments and agencies, Congressional committees and
-------
General Attorney
GM-905-14
Individual congressmen and senators, the General Accounting
Office, governors of states and staff offices of governors,
state and local officials, representatives of private^
industry and farm groups, etc. and in this capacity is'
required to give expert legal advice with respect to
many novel legal situations and problems arising from
the administration of Regional programs. Prepares and
delivers advice and testimony to state legislative bodies
in connection with their deliberations on assumption of
responsibilities for -programs to be delegated by the
Agency.
J. Liaison with Offices of General Counsel and Enforcement
Counsel. Serves as liaison between the Region and the
Offices of General Counsel and Enforcement Counsel to
provide an effective channel of communication in order
to assure that the Region obtains legal judgments from
the Office of General Counsel and policy advice from
the Office of Enforcement Counsel and also to assure
that such Offices are able to base such judgments and
such advice upon accurate perceptions of the pertinent
facts and Regional program objectives.
K. Coordinating and Directing Legal Work. Coordinates
and directs the work of one or more junior attorney-
advisors. Makes day-to-day work assignments and reviews
all major efforts of such attorney-advisors. The review
functions include ensuring that (1) written material is
clear, precise, and of high quality, (2) work is completed
on time, (3) prompt advice is provided to the Regional
managers of programs within assigned areas, and
(4) oral presentations, whether before courts or other
public bodies, are of high quality. Participates in
the recruiting and hiring of attorneys, and provides
attorney-advisors under supervision with opportunities
for professional growth through work experience and
training. Assists the Regional Counsel in conducting
performance evaluations of junior attorney-advisors.
L. Lead Region Matters. Serves as a national legal
expert in one or more subject matter areas of interest
to the Offices of Regional Counsel. Maintains specialized
expertise in such area[s] and serves as a consultant to
other attorneys in the Agency. May. manage a task force
of Regional attorneys in seeking solutions to common
legal problems or in preparing guidance documents,
model agreements, regulations, pleadings, etc. In this
capacity, serves as the liaison between the Office of
General Counsel and the Offices of Regional Counsel.
Arranges conference calls, meetings and other means of
exchanging information among Regional attorneys.
-------
General Attorney
GM-905-14
Mo Other Duties. Performs other duties as assigned.
III. Supervisory Controls.
The Associate reports to the Regional Counsel and
has an attorney-client relationship with all Regional program
managers for whom work is performed and with the Office of
Enforcement at Headquarters. Areas of responsibility are
assigned by the Regional Counsel, and within those areas of
responsibility the Associate has wide latitude in prioritizing
workload, directing and coordinating the efforts of staff
members/ conducting research, preparing documents and exercising
judgment and initiative in completing assignments and making
legal judgments and policy recommendations. Legal advice,
policy recommendations and advocacy during adversarial pro-
ceedings are normally considered expert. Within assigned
areas of responsibility, the Associate accepts work requests
directly from Regional program managers. The Associate is
expected to represent the Regional Counsel from time to tine
in areas of assigned responsibility, although consultation
and discussion with the Regional Counsel is required when
necessary in connection with major legal judgments or policy
recommendations. Completed work is reviewable for consistency
with Agency policy, precedential effect and overall quality.
The Associate is expected to rotate areas of assigned responsi-
bility with other Associates within the Office of Regional
Counsel from time to time. The Regional Counsel is to be
consulted generally on matters arising in the course of
coordinating and directing the work of junior attorneys who
work in the assigned areas of responsibility.
IV. Qualifications,
The Associate must have the equivalent of a JD or LLB
degree from an accredited law school and be a member of the
bar. Other qualifications requirements may be established
by the Regional Counsel, depending upon the needs of the
Office.
-------
TAB I
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF GENERAL COUNSEL
OFFICES OF REGIONAL COUNSEL
BENCHMARK POSITION DESCRIPTION
GM-14 General Attorney*
(Senior Associate Regional Counsel for Enforcement)
NOTE: This position description has been reviewed by the
Headquarters Office of Personnel and has been approved
for use in the Offices of Regional Counsel. In
cases where the duties of the incumbent would not be
sufficiently described in this benchmark position
description, the Regional Classification Specialist
is authorized to make appropriate changes, after
conferring the the Headquarters Office of Personnel
and with the concurrence of the General Counsel.
*
^
Attached to this position description are two cover sheets.\ ~'
The cover sheet indicating that the position will be
filled by a GM-13 is intended for use in those situations
where the incumbent is not yet entitled to assume a
GM-14 position due to inadequate time in grade. When
the time in grade requirements have been fulfilled,
the incumbent will be eligible for promotion to the
GM-14 level. The second cover sheet nay-be used at
that point.
Depending upon the organizational structure of the Office of
Regional Counsel, this position could be classified as that
of a Supervisory General Attorney.
-------
POSITION DESCRIPTION
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GM
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POSITION DESCRIPTION
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-------
General Attorney*
GM-905-14
I. Introduction*
Serves as the Senior Associate Regional Counsel for En-
forcement in the Office of Regional Counsel. The Senior
Associate has responsibility for providing legal advice and
assistance and policy recommendations to the Regional Counsel
and Regional program managers in major areas of responsibility,
including coordination of all enforcement activities within
the Office. The Senior Associate coordinates and directs
the entire workload of the Office in assigned areas of respon-
sibility and is responsible for the work of other attorneys
in the Office who are assigned to work on matters within
such areas of responsibility. The Senior Associate acts as
the Regional Counsel when the Regional Counsel is out of the
office.
II. Major Duties and Responsibilities.
At this level, the Senior Associate will be responsible
for all legal aspects of an entire media area within the
Region, together with coordination of all enforcement activities
of the Office. These matters will involve a wide variety of
highly complex and unusual matters requiring extensive knowledge
and a very high degree of expertise as well as extensive
legal research and analysis, together with consideration of
highly complicated factual and policy issues. The Senior '
Associate will be the principal attorney in the Region for
interpreting for the Regional Administrator and the Regional
program managers a substantial body of Agency regulations
and defending these regulations and Agency actions before
Federal trial and appellate courts. Hatters assigned may
have precedential effects, may have the effect of substantially
broadening or restricting the Agency's activities and may
have an important impact on major industries in the Region.
These matters often involve substantial sums of money and
often are rigorously contested by some of the nation's most
distinguished, capable and highly paid attorneys. The Senior
Associate will direct and coordinate the activities of junior
attorneys assigned to help carry out the specific elements of
the Senior Associates duties and responsibilities.
A. Coordination of Enforcement Hatters.
1. Expertise in Enforcement Hatters. Develops and
maintains expertise in all Agency enforcement
policies, including guidance on prioritization of
enforcement actions, development of enforcement
cases, preparation of administrative letters and
orders, preparation of litigation referral packages,
management of litigation matters, negotiation and
* May be Supervisory General Attorney if appropriate.
-------
General Attorney
GM-905-14
settlement of case, etc.
2. Liaison with the Office of Enforcement Counsel*
Acts as the Region's principal liaison attorney
with the Office of Enforcement Counsel. Receives
guidance from the Office'of Enforcement Counsel
and transmits it to the other attorneys in the
Office of Regional Counsel. Keeps the Office of
Enforcement Counsel informed on Regional matters,
as needed. Attends briefings and training sessions
as needed.
3. Liaison with other Legal Offices. Acts as
the liaison with other Offices of Regional Counsel
on the development of enforcement policies and
procedures in connection with lead Region efforts.
Acts as liaison with the Department of Justice,
the affected U.S. Attorneys and the Attorneys
General of states within the Region on overall
enforcement policy and procedural matters.
4. Development of Regional Enforcement Policies
and Procedures. Assists Regional program managers
in developing Regional enforcement policies and
procedures and reviews such policies and procedures
for consistency with national policies and procedures.
This work is done in coordination with the Associate
Regional Counsels for the other major areas of
responsibility within the Office of Regional Counsel.
5. Coordination of Enforcement Matters in Office
of Regional Counsel.Is responsible for informing
the other Associate Regional Counsels of developments
in enforcement policy. Coordinates legal work
on enforcement matters being handled by the Office
of Regional Counsel so as to assure that all
enforcement activities are consistent with national
policies and procedures. Maintains files on
current enforcement policies.
6. Multi-media Enforcement Case Assignments.
Reviews enforcement matters involving more than
one major area of responsibility and makes recom-
mendations to the Regional Counsel as to which
Associate Regional Counsel should be given the
lead responsibility for handling the matter.
Reviews the handling of multi-media enforcement
matters so as to assure adequate coordination
within the Office.
-------
-3-
General Attorney
(24-905-14
7. Review of Resources Available for. Enforcement'
Legal Services.Periodically reviews the allocation
of resources for enforcement matters within the
Office of Regional Counsel and makes recommendations
to the Re.gional Counsel for obtaining adequate
resources to meet the requirements of the Region's
enforcement efforts.
8. Coordination of Criminal Investigators. Coordinates
the work of any criminal investigatory personnel who
are assigned to the Office. Ensures that such personnel
attend to the highest priority matters in the Region,
that they are assigned staff attorneys to work with
them to assist in proper case development, and that
they properly coordinate their activities with the
Office of Inspector General.
B. Acting Regional Counsel Duties. Acts as the Regional
Counsel when the Regional Counsel is out of the Office.
C. Legal Research and Problem Resolution. Researches
and resolves the legal questions which arise under all
regulations, lawsuits, enforcement actions, executive
orders and other administrative actions involving major "
Federal statutes affecting..the Agency's programs, which
may include (depending upon the specific areas assigned
by the Regional Counsel) such statutes as the Clean
Water Act, the Clean Air Act, the Toxic Substances
Control Act, the Safe Drinking Water Act, the Resource
Conservation and Recovery Act, the National Environmental
Policy Act, the Comprehensive Environmental Response,
Compensation and Liability Act and the Federal Insecticide,
Fungicide and Rodenticide Act (in each case as from :
time to time amended). In areas assigned by the Regional
Counsel, is the focal point within the Region for resolution
of legal issues arising under such statutes (except for :
matters of national importance which require consultation
with the Offices of General Counsel or Enforcement
Counsel).
D. General Legal Advice and Policy Recommendations.
Either acting directly or through the Regional Counsel,
directly, provides the Regional Administrator, Deputy
Regional Administrator and the Regional Divisions and
Offices with general legal advice and (upon request)
policy recommendations concerning those Regional programs,
operations and activities in areas assigned by the
Regional Counsel so that their major decisions are made
with applicable legal considerations in mind.
-------
General Attorney
GM-905-14
E. Legal Advice and Policy Recommendations on Enforcement
Hatters.Provides legal advice and policy recommendations
to the Regional program managers responsible for enforcement
matters. Assists in the preparation of major legal
correspondence, notices of violation, administrative
orders, litigation referrals and other enforcement
documents and reviews such documents for legal sufficiency
and consistency with Agency legal interpretations and
policy guidance* Is responsible for assuring that the
Agency's centralized data reporting systems are kept
current with information on Regional enforcement matters.
Conducts investigations into criminal natters in conjunction
with agency criminal investigatory personnel and law
enforcement agencies.
F. Legal Advice and Policy Recommendations to Grant
Programs.Provides legal advice and policy recommendations
to managers of Agency grant programs, including the
construction grants program administered under Title XX
of the Clean Water Act. Advises on the eligibility for
Agency funding of cost items under Agency grants, including
cost overruns by contractors on Agency-funded projects.
Works closely with the Agency's Office of Inspector
General in resolving problems arising under audit activities
and investigations. Drafts special grant conditions to
cover unusual or unique situations. Assists state
attorneys in interpreting statutes and regulations
administered by the Agency, advising on the handling of
claims matters and generally serving the needs of programs
which have been delegated by the Agency to state agencies.
Prepares final Agency decisions on bid protests arising
under grantee procurement. Conducts the Region's partici-
pation in grant appeal proceedings.
G. Drafting of Determinations, Regulations, Notices, etc.
Drafts and reviews final Agency determinations, proposed
and final regulations, notices and such other documents :
to be published in the Federal Register, including
Agency actions on state air pollution plans, designations
of sole source aquifers under the Safe Drinking Water
Act, approvals and authorizations of state programs under
the Clean Water Act, the Clean Air Act, the Resource
Conservation and Recovery Act, the Federal Insecticide,
Fungicide and Rodenticide Act and other Federal environ-
mental statutes.
E. Litigation Matters. Manages and coordinates defensive
and enforcement litigation resulting from the Region's
activities under the statutes referred to above. Conducts
discovery and prepares motions, briefs and other litigation
documents. Appears before courts from time to time to
-------
General Attorney
GM-905-14
conduct trials, hearings and oral arguments. Works
closely with the Offices of Enforcement Counsel and
General Counsel at Beadguarters and the Department of
Justice or U.S. Attorneys. Assists U.S. Attorneys in
seeking indictments in criminal matters and in prosecuting
such natters. Coordinates with state attorneys general.
Represents the Region in administrative proceedings of
EPA and other agencies.
X, Negotiation and Informal Dispute Resolution. Represents
the Region in its dealings with outside parties, including
negotiation of bilateral agreements, consent orders and
judgments, and memoranda of understanding. Represents
the Region in negotiating the settlement of disputed
matters so as to avoid protracted and expensive litigation
and facilitate expeditious administration of Agency
programs.
J. Hearing Officer Duties. Serves as hearing officer
in hearing and deciding matters brought before the
Agency and assists the Regional Administrator in preparing
formal administrative decisions. Some of these decisions
(e.g. bid protest decisions arising under the construction
grants program) are final Agency action subject to
direct review in the Federal courts. At the request of
the Regional Counsel, performs responsibilities which
the Administrator has delegated to the Regional Counsel,
such as rendering decisions on confidentiality of business
information under 40 C.F.R. Part 2, which decisions
also become final Agency action.
K. Representation of the Region. Represents the Region
at conferences and meetings held with other Federal
departments and agencies, Congressional committees and
individual congressmen and senators, the General Accounting
Office, governors of states and staff offices of governors,
state and local officials, representatives of private '
industry and farm groups, etc. and in this capacity is
required to give expert legal advice with respect to
many novel legal situations and problems arising from
the administration of Regional programs. Prepares and
delivers advice and testimony to state legislative bodies
in connection with their deliberations on assumption of
responsibilities for programs to be delegated by the
Agency.
L. Liaison with Offices of General Counsel and Enforcement
Counsel.Serves as liaison between the Region and the
Offices of General Counsel and Enforcement Counsel to
provide an effective channel of communication in order
to assure that the Region obtains legal judgments from
-------
General Attorney
GM-905-14
the Office of General Counsel and policy advice from
the Office of Enforcement Counsel and also to assure
that such Offices ire able to base such judgments and
such advice upon accurate perceptions of the pertinent
facts and Regional program objectives.
M, Coordinating and Directing Legal Work. Coordinates
and directs the work of one or more junior attorney-
advisors. Makes day-to-day work assignments and reviews
all major efforts of such attorney-advisors. The review
functions include ensuring that (1) written material is
clear, precise, and of high quality, (2) work is completed
on time, (3) prompt advice is provided to the Regional
managers of programs within assigned areas, and
(4) oral presentations, whether before courts or other
public bodies, are of high quality. Participates in
the recruiting and hiring of attorneys, and provides
attorney-advisors under supervision with opportunities
for professional growth through work experience and
training. Assists the Regional Counsel in conducting
performance evaluations of junior attorney-advisors.
M. Lead Region Matters. Serves as a national legal
expert in one or more subject matter areas of interest
to the Offices of Regional Counsel. Maintains specialized.
expertise in such area[s] and serves as a consultant to
other attorneys in the Agency. May manage a task force
of Regional attorneys in seeking solutions to common
legal problems or in preparing guidance documents,
model agreements, regulations, pleadings, etc. In this
capacity, serves as the liaison between the Office of
.General Counsel and the Offices of Regional Counsel.
Arranges conference calls, meetings and other means of
exchanging information among Regional attorneys.
0. Other Duties. Performs other duties as assigned.
III. Supervisory Controls.
The Senior Associate reports to the Regional Counsel and
has an attorney-client relationship with all Regional program
managers for whom work is performed and with the Office of
Enforcement at Beadquarters. Areas of responsibility are
assigned by the Regional Counsel, and within those areas of
responsibility the Senior Associate has wide latitude in prior-
itizing workload, directing and coordinating the efforts of
staff members, conducting research, preparing documents and
exercising judgment and initiative in completing assignments
and making legal judgments and policy recommendations.
Legal advice, policy recommendations and advocacy during
adversarial proceedings are normally considered expert.
-------
General Attorney
GM-905-14
Within assigned areas of responsibility, the Senior Associate
accepts work requests directly from Regional program managers.
The Senior Associate is expected to act as the Regional Counsel
when the Regional Counsel is out of the office. The Senior
Associate is also expected to represent the Regional Counsel
from time to time in areas of assigned responsibility, although
consultation and discussion with the Regional Counsel is
required when necessary in connection with major legal judgments
or policy recommendations. Completed work is reviewable for
consistency with Agency policy, precedential effect and
overall quality. The Senior Associate is expected to rotate
areas of assigned responsibility with other Senior Associates
within the Office of Regional Counsel from time to time.
The Regional Counsel is to be consulted generally on matters
arising in the course of coordinating and directing the work
of junior attorneys who work in the assigned areas of respon-
sibility.
IV. Qualifications.
The Senior Associate must have the equivalent of a JD or LLB
degree from an accredited law school and be a member of the
bar. Other qualifications requirements may be established
by the Regional Counsel, depending upon the needs of the
Office.
-------
TAB J
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF GENERAL COUNSEL
OFFICES OF REGIONAL COUNSEL
BENCHMARK POSITION DESCRIPTION
GM-15 General Attorney*
(Senior Associate Regional Counsel for Enforcement)
NOTE: This position description has been reviewed by the
Headquarters Office of Personnel and has been approved
for use in the Offices of Regional Counsel. Zn
cases where the duties of the incumbent would not be
sufficiently described in this benchmark position
description, the Regional Classification Specialist
is authorized to make appropriate changes, after
conferring the the Headquarters Office of Personnel
and with the concurrence of the General Counsel.
Attached to this position description are two cover sheets
The cover sheet indicating that the position will be
filled by a GM-14 is intended for use in those situations
where the incumbent is not yet entitled to assume a
GM-14 position due to inadequate time in grade. When
the time in grade requirements have been fulfilled,
the incumbent will be eligible for promotion to the
GM-15 level. The second cover sheet may be used at
that point.
Depending upon the organizational structure of the Office of
Regional Counsel, this position could be classified as that
of a Supervisory General Attorney.
-------
POSITION DESCRIPTION
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-------
POSITION DESCRIPTION
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Version of 3/18/82
General Attorney*
GM-905-15
I. Introduction.
Serves as the Senior Associate Regional Counsel for Enforce-
ment in the Office of Regional Counsel. The Senior Associate
has responsibility for providing legal advice and assistance
and policy recommendations to the Regional Counsel and
Regional program managers in major areas of responsibility,
including one or more major areas of national lead region
responsibility and coordination of all enforcement activities
within the Office. The Senior Associate coordinates and
directs the entire workload of the Office in assigned areas
of responsibility, and is responsible for the work of other
attorneys in the Office who are assigned to work on matters
within such' areas of responsibility. The Senior Associate
acts as the Regional Counsel when the Regional Counsel is
out of the Office.
II. Major Duties and Responsibilities.
The Senior Associate will be responsible for all legal
aspects of an entire media area within the Region, together with
one or more major national lead region responsibilities and
coordination of all enforcement activities of the Office.
The Senior Associate's responsibilities include the most
complex, difficult, and important matters to be handled by
the Office, requiring extensive knowledge and a very high
degree of expertise. These matters often require extensive
legal research and analysis, together with consideration of
highly complicated factual and policy issues. The Senior
Associate will be the principal attorney in the Region for
interpreting for the Regional Administrator and the Regional
program managers a substantial body of Agency regulations
and defending these regulations and Agency actions before'
Federal trial and appellate courts. Matters assigned may
have precedential effects, may have the effect of substantially
broadening or restricting the Agency's activities and may
have an important impact on major industries in the Region.
These matters often involve substantial sums of money and
often are rigorously contested by some of the nation's most
distinguished, capable and highly paid attorneys. The Senior
Associate will direct and coordinate the activities of junior
attorneys assigned to help carry out the specific elements
of the Senior Associate's duties and responsibilities.
A. Major Lead Region Matters. Serves as a national
legal expert in one or more major subject matter areas.
These areas involve highly complex matters relating to
May be Supervisory General Attorney if appropriate
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General Attorney
GM-905-15
significant aspects of the Agency's policies and
programs and require a very high degree of expertise.
Maintains specialized expertise in such area[s] and
serves as a consultant to other attorneys in the
Agency. May manage a task force of Regional attorneys
in seeking solutions to common legal problems or in
preparing guidance documents, model agreements, regulations,
pleadings, etc. In this capacity, serves as the
liaison between the Office of General Counsel and the
Offices of Regional Counsel. Arranges conference
calls, meetings and other means of exchanging information
among Regional attorneys.
B. Coordination of Enforcement Matters.
1. Expertise in Enforcement Matters. Develops and
maintains expertise in all Agency enforcement
policies, including guidance on prioritization of
enforcement actions, development of enforcement
cases, preparation of administrative letters and
orders, preparation of litigation referral packages,
management of litigation matters, negotiation and
settlement of cases, etc.
2. Liaison with the Office of Enforcement Counsel.
Acts as the Region's principal liaison attorney
with the Office of Enforcement Counsel. Receives
guidance from the Office of Enforcement Counsel
and transmits it to the other attorneys in the
Office of Regional Counsel. Keeps the Office of
Enforcement Counsel informed on Regional matters,
as needed. Attends briefings and training sessions
as needed.
3. Liaison with other Legal Offices. Acts as
the liaison with other Offices of Regional Counsel
on the development of enforcement policies and
procedures in connection with lead Region efforts. '
Acts as liaison with the Department of Justice,
the affected U.S. Attorneys and the Attorneys
General of states within the Region on overall
enforcement policy and procedural matters.
4. Development of Regional Enforcement Policies
and Procedures. Assists Regional program managers
in developing Regional enforcement policies and
procedures and reviews such policies and procedures
for consistency with national policies and procedures.
This work is done in coordination with the Associate
Regional Counsels for the other major areas of
responsibility within the Office of Regional Counsel.
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-3-
General Attorney
GM-905-15
5. Coordination of Enforcement Matters in Office
of Regional Counsel*Is responsible for informing
the other Associate Regional Counsels of developments
in enforcement policy. Coordinates legal work
on enforcement matters being handled by the Office
of Regional Counsel so as to assure that all
enforcement activities are consistent with national
policies and procedures. Maintains files on
current enforcement policies.
6. Multi-media Enforcement Case Assignments.
Reviews enforcement matters involving .more than
one major area of responsibility and makes recom-
mendations to the Regional Counsel as to which
Associate Regional Counsel should be given the
lead responsibility for handling the matter.
Reviews the handling of multi-media enforcement
matters so as to assure adequate coordination
within the Office.
7. Review of Resources Available for Enforcement
Legal Services^Periodically reviews^the allocation
of resources for enforcement matters within the
Office of Regional Counsel and makes recommendations
to the Regional Counsel for obtaining adequate *
resources to meet the requirements of the Region's -
enforcement efforts.
8. Coordination of Criminal Investigators. Coordinates
the work of any criminal^nvestigatory personnel who
are assigned to the Office. Ensures that such personnel
attend to the highest priority matters in the Region,
that they are assigned staff attorneys to work with
them to assist in proper case development* and that
they properly coordinate their activities with the
Office of Inspector General.
C. Acting Regional Counsel Duties. Acts as the Regional
Counsel when the Regional Counsel is out of the Office.
D. Legal Research and Problem Resolution. Researches
and resolves the legal questions which arise under all
regulations, lawsuits, enforcement actions, executive
orders and other administrative actions involving major
Federal statutes affecting the Agency's programs, which
may include (depending upon the specific areas assigned
by the Regional Counsel) such statutes as the Clean
Water Act, the Clean Air Act, the Toxic Substances
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General Attorney
GM-905-15
Control Act, the Safe Drinking Water Act, the Resource
Conservation and Recovery Act, the National Environmental
Policy Act, the Comprehensive Environmental Response, .
Compensation and Liability Act and the Federal Insecticide,
Fungicide and Rodenticide Act (in each case as from
time to time amended}* In areas assigned by the Regional
Counsel, is the focal point within the Region for resolution
of legal issues arising under such statutes (except for
matters of unusual national importance which require
consultation with the Offices of General Counsel or
Enforcement Counsel).
E. General Legal Advice and Policy Recommendations.
Either acting through the Regional Counsel, or, at the
direction of the Regional Counsel, directly, provides
the Regional Administrator, Deputy Regional Administrator
and the Regional Divisions and Offices with general
legal advice and (upon request) policy recommendations
concerning those Regional programs, operations and
activities in areas assigned by the Regional Counsel so
that their major decisions are made with applicable
legal considerations in mind.
F. Legal Advice and Policy Recommendations on Enforcement
Matters* Provides legal advice and policy recommendations
to the Regional program managers responsible for enforcement .
matters. Assists in the preparation of major legal
correspondence, notices of violation, administrative
orders, litigation referrals and other enforcement
documents and reviews such documents for legal sufficiency
and consistency with Agency legal interpretations and
policy guidance. In assigned areas, is responsible for
assuring that the Agency's centralized data reporting
.systems are kept current with information on Regional
enforcement matters. Conducts investigations into .
criminal matters in conjunction with Agency investigatory
personnel and law enforcement agencies.
G. Legal Advice and Policy Recommendations to Grant Programs."
Provides legal advice and policy recommendations to
managers of Agency grant programs, including the construction
grants program administered under Title II of the Clean
Water Act. Advises on the eligibility for Agency funding
of cost items under Agency grants, including cost overruns
by contractors on Agency-funded projects. Works closely
with the Agency's Office of Inspector General in resolving
problems arising under audit activities and investigations.
Drafts special grant conditions to cover unusual or
unique situations. Assists state attorneys in interpreting
statutes and regulations administered by the Agency,
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General Attorney
GM-905-15
advising on the handling of claims matters and generally
serving the needs of .programs which have been delegated
by the Agency to state agencies. Prepares final Agency
decisions on bid protests arising under grantee procurement.
Conducts the Region's participation in grant appeal
proceedings.
B. Drafting of Determinationsy Regulations, Notices, etc.
Drafts and reviews final Agency determinations, proposed
and final regulations, notices and such other documents
to be published in the Federal Register, including
Agency actions on state air pollution plans, designations
of sole source aquifers under the Safe Drinking Water
Act, approvals and authorizations of state programs under
the Clean Water Act, the Clean Air Act, the Resource
Conservation and Recovery Act, the Federal Insecticide,
Fungicide and Rodenticide Act and other Federal environmental
statutes.
I. Litigation Matters. Manages and coordinates the
Region's participation in defensive'and enforcement
litigation resulting from the Region's activities
under the statutes referred to above. Conducts discovery
and prepares motions, briefs and other litigation documents.
Appears before courts from time to time to conduct
trials, hearings and oral arguments. Works closely
with the Offices of Enforcement Counsel and General
Counsel at Headquarters and the Department of Justice
or U.S. Attorneys. Assists U.S. Attorneys in seeking
indictments in criminal matters and in prosecuting such
matters. Coordinates with state attorneys general.
Represents the Region in administrative proceedings of
EPA and other agencies.
J. Negotiation and Informal Dispute Resolution. Represents
the Region in its dealings with outside parties, including
negotiation of bilateral agreements, consent orders and
judgments, and memoranda of understanding. Represents :
the Region in negotiating the settlement of disputed
matters so as to avoid protracted and expensive litigation
and facilitate expeditious administration of Agency
programs.
K. Hearing Officer Duties. Serves as hearing officer
in hearing and deciding matters brought before the
Agency and assists the Regional Administrator in preparing
formal administrative decisions. Some such decisions
(e.g. bid protest decisions arising under the construction
grants program) are final Agency action subject to
direct review in the Federal courts. At the request of
the Regional Counsel, performs responsibilities which
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General Attorney
GM-905-15
the Administrator has delegated to the Regional Counsel,
such as rendering decisions on confidentiality of business
information under 40 C.F.R. Part 2, which decisions
also become final Agency action.
L. Representation of the Region, Represents the Region
at conferences and meetings held with other Federal
departments and agencies. Congressional committees and
individual congressmen and senatorsr the General Accounting
Office, governors of states and staff offices of governors,
state and local officials* representatives of private
industry and farm groups, etc. and in this capacity is
required to give expert legal advice with respect to
many novel legal situations and problems arising from
the administration of Regional programs. Prepares and
delivers advice and testimony to state legislative bodies
in connection with their deliberations on assumption of
responsibilities for programs to be delegated by the
Agency.
M. Liaison with Offices of General Counsel and Enforcement
Counsel. Serves as liaison between the Region and the
Offices of General Counsel and Enforcement Counsel to
provide an effective channel of communication in order
to assure that the Region obtains legal judgments from
the Office of General Counsel and policy advice from
the Office of Enforcement Counsel and also to assure
that such Offices are able to base such judgments and
such advice upon accurate perceptions of the pertinent
facts and Regional program objectives.
N. Coordinating and Directing Legal Work. Coordinates
and directs the work of one or more attorneys. Makes
day-to-day work assignments and reviews all major efforts
of such attorneys. The review functions include ensuring
that (1) written material is clear, precise, and of
high quality, (2) work is completed on time, (3) prompt
advice is provided to the Regional managers of programs,
and (4) oral presentations, whether before courts or
other public bodies, are of high quality. Participates
in the recruiting and hiring of attorneys, and provides
attorneys under supervision with opportunities for
professional growth through work experience and training.
Assists the Regional Counsel in conducting performance
evaluations of junior attorneys.
O. Other Duties. Performs other duties as assigned.
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General Attorney
GM-905-15
III. Supervisory Controls.
The Senior Associate reports to the Regional Counsel and
has an attorney-client relationship with all Regional program
managers for whom work is performed and with the Office of
Enforcement at Headquarters. Areas of responsibility are
assigned by the Regional Counsel, and within those areas of
responsibility the Senior Associate has wide latitude in
prioritizing workload, directing and coordinating the efforts
of staff members, conducting research, preparing documents
and exercising judgment and initiative in completing assignments
and making legal judgments and policy recommendations. Legal
advice, policy recommendations and advocacy during adversarial
proceedings are normally considered expert. Within assigned
areas of responsibility, the Senior Associate accepts work
requests directly from Regional program managers. The Senior
Associate .is expected to act as the Regional Counsel when
the Regional Counsel is out of the Office. The Senior Associate
is also expected to represent the Regional Counsel from time
to time in areas of assigned responsibility, although consultation
and discussion with the Regional Counsel are required when
necessary in connection with major legal judgments or policy
recommendations. Completed work is reviewable for consistency
with Agency policy, precedential effect and overall effectiveness.
The Senior Associate is expected to rotate areas of assigned
responsibility with other Associates within the Office of
Regional Counsel from time to time.
IV. Qualifications.
The Senior Associate must have the equivalent of a JD or
LLB degree and be a member of the bar. Other qualifications
requirements may be established by the Regional Counsel,
depending upon the needs of the Office.
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2. Basis for Assignments. The lead attorneys role
thall be assigned on the following basisi
(a). Regional Matters. Normally, the Office of
Regional Counsel shall take the lead on matters arising in
the Regions, except where the Regional Counsel and the
the appropriate supervisor within the Office of Enforcement
Counsel agree* after conferring at ah early point in the develop*
ment of the natter, that the matter is of overriding national
significance and that the lead role should be assigned to
an attorney in the Office of Enforcement Counsel. In cases
where the Regional Counsel and the supervisor within the
Office of Enforcement Counsel are unable to agree as to
which level should be assigned the lead role, the matter
will be resolved by the Associate Administrator for Legal
and Enforcement Counsel.
(b). Enforcement/Defensive Matters: Appeals. In
instances where' enforcement litigation and defensive litigation
arise involving essentially the same parties and the same set
of circumstances, the Associate Administrator for Legal and
Enforcement Counsel shall determine the allocation of roles
(including, where deemed necessary, the establishment of a
lead attorney for the entire matter) so as to ensure that
both aspects of the matter are properly represented and that
the positions of the respective Offices are well-coordinated.
The Office of General Counsel (or the appropriate Office of
Regional Counsel) shall have the lead on all matters before
Courts of Appeals, even though the lead on the matter was
previously taken by the Office of Enforcement Counsel.
3. Obligations to Other Attorneys. The lead attorney
shall provide other Agency attorneys assigned to the matter with
adequate opportunities to contribute to the litigation effort*
including participation as supporting counsel in the development
of the litigation strategy, the preparation of legal documents,
and the conduct of negotiations with opposing parties.
VIII. GENERAL LEGAL MATTERS? RELATIONSHIPS WITH OGC.
The reorganization will not change the working relationship*
between the Office of General Counsel and the Offices of
Regional Counsel. All existing lines of communication and
all existing procedures should continue to be used until
further notice.
IX. STEPS TO TAKE IN IMPLEMENTING THIS GUIDANCE.
A. Completion of Interim Reorganization. A Region which
has not yet made arrangements for its enforcement attorneys
to report to the Regional Counsel should do so without delay,
regardless of the status of its overall reorganization.
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STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON.-B.C. 20463
ADMINISTRATOR
KZM3MKBOM
SUBJECT* Regional Organization Structure
TOt Associate Administrators
Assistant Administrators
Regional Administrators
Staff Office Dirtctora .
This siemorandum provides guidance for regional organization
and will subsequently be incorporated into the Agency Organization
and Functions Manual*
*
Reorganization Objectives, Regional organization decisions include
consideration of the following objectives:
Clarifying accountability for regional programs.
Facilitating communication links between related
Headquarters and regional components* '
> Improving regional policy and management decision*
Baking processes*
- Placing functions in organizations where they ,. :
can best be integrated with related activities.
. * Favoring fewer and larger organizations to avoid
subsequent further consolidation and reorganization
in a tine of declining resources*
Xn organizing to carry out these objectives, regions will select
one of the two organization patterns described below*
yeeomrnended Organization. Regional Administrators are authorized
to establish a regional structure and organization of functions as
outlined in Attachment 1. Major features of the authorized organi-
zation include the following!
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2. Enforcement functions of pernit issuance and related
compliance monitoring Are assigned to the appropriate program ..,
divisions. This includes issuance of notices of violation '
find administrative orders,'after consulting with the Office of
Regional Counsel. (Permit coordination functions and placement
Are optional.)
2. Legal vork associated with Enforcement litigation and
current Regional Counsel functions vill be performed in newly
structured and expanded Offices of Regional Counsel reporting to
the General Counsel with the following provisional
i
a. Regional Counsels vill provide the- Regional
Administrator with legal advice and assistance for all program
areas in an attorney client relationship.
b. The Regional Administrator vill continue to initiate
enforcement actions. These actions vill be based upon guidance
from the Enforcement Counsel, Office of Legal and Enforcement
Counsel, and vith legal concurrence of the Regional Counsel.
e. As in the past the Regional Administrator vill
participate in and concur vith the General Counsel in selections,
promotions, awards and disciplinary actions for Regional Counsels.
Regional Administrators vill be a party to performance agreements
for and vill participate in the performance ratings of Regional '
Counsels by the General Counsel. ^^
.
d. The Regional Administrator vill also continue to
manage the resources of the Office of Regional Counsel and vill
provide certain administrative support such as space allocations,
processing of personnel actions, and the management of travel and
training accounts.
3. Two staff offices are authorized an Office of
Congressional and Intergovernmental Liaison and an Office of
Public Affairs. . -'
4. The preferred option for policy and Management functions
is to establish an Office of Assistant Regional Administrator for
Policy and Management. The Assistant Regional Administrator vill
function, as a key jnember of the regional management team by guiding
the internal decision-making processes, including the analysis and
evaluation of issues requiring policy or management decisions by
the Regional Administrator. The other option is to structure vith
a Management Division as discussed later.
a. The management systems and analysis function vill
include the development of program strategies, including State/EPA
Agreements, program evaluations, and analytic studies.
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b. Internal equal employment opportunity functions vill
be strengthened by being integrated as part of the personnel Manage-
ment program with oversight and assistance from an E.Z.O. Officer
in the Office of the Assistant Regional Administrator. ./,
e. As currently operating in some regions, all grants .
administration functions, including those for "construction grants,
vill be consolidated in this office.
d. Environmental" Assessment (EIS) functions vill be
carried out under direction of the Assistant Regional Administrator.
5. Three programmatic divisions are authorized: Water
Management} Air and Waste Management} and Environmental Services.
Written requests to establish separate divisions for Air Management
and for Waste Management vill be considered, primarily for larger
regions. Approval by the Assistant Administrator for Administration
will be based on the overall rationale for the request measured
against the objective of achieving organizational efficiency and
economy. ..
C. External civil rights compliance and ainority business
enterprise functions are assigned to the Water Management Division
to be integrated with the construction grants program.
7. Comprehensive Environmental Response, Compensation'and
Liability Act of 1980 (Superfund) coordination and remedial action
functions are assigned to the Air and Waste Management Division. .
Superfund and CWA Section 311 emergency response activities vill'.
be performed by the Environmental Services Division.
8. Toxics and Pesticides program activities are assigned to
the Air and Waste Management Division. The Pesticide sampling
function is to be integrated with other field activities in the
Environmental Services Division.
Optional Organisation. Regional Administrators may elect, vith
approval from the Assistant Administrator for Administration, to
adopt the alternative regional organization reflected in Attach-
ment 2. Selection of this structure should depend on the Regional,.-
Administrator's management style and other management considera-: -''
tions. This option reflects a regional Management Division concept
vith less responsibility in the policy and decision-Baking process
than that assigned to an Assistant Regional Administrator. Under
this alternative, placement of the Environmental Assessment and
State/EPA agreement functions is optional. The same flexibility
exists to request separate Air Management and Waste Management
Divisions*
State Liaison. The extent and kind of liaison that Regional Offices
develop and maintain vith each State is left to the discretion of
the Regional Administrator. XPA assignments may be a viable option.
Consideration of on-site State Offices (ranging from one employee
-------
to a full operating contingency).is encouraged where such Offices
can contribute effectively to enhancing our relationship with
the States end to improving EPA'a efforts to delegate its programs.
i
However, a nunber ef factors Bust be weighed before deciding to*-'
establish & State Office. Criteria for use in aafcing these
decisions are included in Attachment 3. Zf S^ate Offices
with substantial programmatic functions are established their
placement say vary from the approved organizational alignments
Achieving efficiency and Economy, Establishment of subordinate
organization structures and positions vithin them below the
Division and Office level is at the Regional Administrator'*
discretion. However, this shall be accomplished observing sound
organizational judgment and position management principles
contained in EPA guidance.documents* Grade levels of positions
sust be supportable by appropriate position classification
standards. This guidance is reflective of the management
philosophy of this Administration. To achieve and maintain an
acceptable management posture within each region. Regional
Administrators are expected to establish a viable personnel
management function in the region at a level consistent with its
importance to our management objectives and to consult with the
Personnel Officer regarding management issues'on a regular basis.
Implementation. New Regional Administrators are authorised'to
implement the recommended organization structure as early as
possible, consistent with management's responsibilities to
employees and employee unions. Acting Regional Administrators .
should consult with Clif Killer (FTS 755-0442) or Seth Hunt (FTS
327-3895), Special Assistants to the Administrator, prior to
implementation ef any reorganization*
The main purpose of regional reorganization is to provide
a more effective structure which is closely aligned to the
Headquarters organization. Our experience to date with the
Headquarters organization has been gratifying in that it provides
for stronger and more consistent management and has received ~
widespread favorable reaction. Zn this, as in any organization,
its effectiveness will depend on its people. Z am confident _-:
that EPA personnel will help cake.EPA an effective, well managed :"
entity.
Anne M. Corsuch
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-------
Criteria for State Offices
/
2. Type of Office to be established (coordination/liaison,
operationsr guni-regions 7 single or rcuIti-prograrr.Sr etc.) and the
programs to be "representedAre the proposed functions and
activities the best way of. achieving the Office.1* purpose, what
priority are the programs within the Regional Office, and are
they the ones with which the State &<*«ds the nost assistance?
2. State and Regional Office purpose, qoalsf and objectives
Are they in concert and will the office further the goals and
objectives of the Region and 1PA?
3. Status of state programs/assumption cf delegated authority
Are the State programs at the proper stage of development where a
State Office could aafce a significant impact and will the Office
further the goal of delegating Bore responsibility to the State?
4* Keeeptivity to EPA presenceIs there a genuine interest in
as well as a need for an £PA State Office?
5. Cost ef establishing and operating the office and aoving
peopleDo the financial costs outweigh the anticipated benefits?
. Effect on resources within the Regional OfficeWill State *
Offices fragment and deplete the critical mass of expertise within
the Regional Office? (This will vary depending on the~size of the
Regional Office and the number and size of State Offices.)
7« The quality of employees available for the particular Office
Are they experienced and highly activated?
8. 'Accessibility by public transportationIs the location remote
and difficult to reach so that direct communications are less
frequent?.
9* Past and current relationship between top management and the~<
stafT~IeveIs"withan the Regional Office and the StateIs there a'
strong commitment and backing from top management along with a
history of trust and a good working relationship between the staffs?
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OFFICE OF REGIONAL COUNSEL
ATTORNEY ROTATION RECORD
Attorney
X. Major Areas of Responsibility*
Dates Assigned
From "So
1. Air. .
2. Hater.
A. NFEES.
b. Jbn-flPDES Clean Water Act ........ ...
c. Safe Drinking Vfater Act. . ......... .
d. Other
(1) _ . ....
(2) . ....
3. Grants, Contracts and General Administration ...
a. Construction grants
b. Program grants (including State/EPA
Agreements) ..... . ...... .
C. HEPA
d. FOIA
e. Personnel ....... ... ..... ...
f . Conflict of interest ........... .
g. Other
(1) _ . ...
. (2) .
4. Hazardous Substances and Emergency Response. ...
a. RCRA Delegation Matters ............
b. Other RCRA Hatters ....... .......
c. Super-fund and Section 311 of Clean Water Act .
d. TCSCA and FIFRA ................
e. Other
(1) . ....
5. Lead Region
a.
b.
c.
d.
6. Coordination of Enforcement Natters.
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Note on Coordination of Policy Development
and Review of June 23, 1982
Since this memorandum was written, OLEC has split into two
organizations: Office of Enforcement and Compliance Monitoring
(OECM) and Office of General Counsel (OGC). The office identi-
fied in the attached memorandum as being responsible for coordi-
nation of policy development and review, OLEP, only handles
enforcement questions.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. DC 204(0
M 23
OFFICE OF
LEG At. AMD eNFOHCCMCNT COUNSEL
MEMORANDUM
SUBJECT:
FROM:
TO:
Coordination of Policy Development and Review
Robert M. Perry
Associate Administrator for Lega
ment Counsel and General Counsel
Enforcement Counsel
Deputy General Counsel
Associate Enforcement Counsels
Associate General Counsels
Regional Counsels (Regions I-X)
and Enforce-
The proposed reorganization of the Office of Legal and
Enforcement Counsel (OLEC) and the enforcement task force
report have been helpful in identifying areas in which OLEC
needs to develop standard operating procedures and to more
clearly define respective areas of responsibility for
various offices within OLEC. Policy development and review
were two areas so identified.
Specifically, problems identified in those areas
include the need for better coordination between the Office
of General Counsel and the Office of Enforcement Counsel in
matters of legal and enforcement policy development and
review; the need to establish operating procedures and
policies for the uniform and effective conduct of legal
and enforcement activities by OLEC; and the need for some
OLEC focal point for dealing with other Agency offices in
policy activities relating to legal and enforcement matters.
To address these problems, I have established the
Office of Legal and Enforcement Policy (OLEP). This office
will report directly to me and will serve as my representative
for overseeing legal and enforcement policy development and
review work within OLEC.
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-2-
OLEP will assume an active management role with regard to
policy activities. In this role, its initial responsi-
bilities will be:
1) to coordinate the participation of OLEC on policy
related matters with other Agency offices (including
participation in the review of regulations during
Steering Committee and Red Border reviews);
2) to ensure the participation of all necessary
OLEC and program Headquarters and Regional components
in the policy development stage;
3) to designate which group(s) in OLEC should parti-
cipate or take the Office lead in policy and
guidance development; and
4) to assume the lead on policy and guidance develop-
ment in matters which significantly impact more
than one media area and those matters in which a
national policy perspective is important.
Obviously, your cooperation is vital in order for
OLEP to perform these functions effectively. I have
asked OLEP to seek your advice on how their assigned
responsibilities can best be integrated into OLEC activities.
Accordingly, OLEP staff will be contacting you shortly in
that regard.
In the meantime, please continue your current interim pro-
cedures for ensuring that OLEC activities are coordinated properly
among the different components of our Office. Should you have any
questions regarding the matters contained in this memorandum,
please contact Richard Smith, Acting Director of the Office of
Legal and Enforcement Policy, at 382-4550.
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Note on General Operating Procedures
for the Civil Enforcement Program
There have been many changes in the structure and function
of Agency's enforcement program, since the Agency issued this
memorandum. OECM is currently preparing a summary of the
changes. The summary should be ready the next time the Compen-
dium is updated.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. DC 104(0
Jll 8
erne* or
bCa*k AND KNf ONCKMKMT COUMCKt.
MEMORANDUM
SUBJECT: General Operating Procedures for the
Civil Enforcement Program
FROM: Robert M. Perry
Associate Administrator for L&'gal and Enforcement
Counsel and General Counsel
TO: Associate Administrator for
Policy and Resource Management
Assistant Administrators
Regional Administrators
Staff Office Directors
I. Introduction
This memorandum provides general guidance regarding EPA's
enforcement process, consistent with new Regional and Headquarters
structures. The memorandum describes the respective roles and
relationships of the various EPA offices which participate in
enforcement activities.
I greatly appreciate tne contributions which you and your
respective staffs have made in participating in the development
of this general guidance. This guidance has reached the point
at which it has received the consensus support of all affected
Agency offices on virtually all matters which it addresses.
More detailed guidance on operating procedures for each media-
specific program will be forthcoming from the responsible
Assistant Administrators and myself. '
The guidance contained in this document on responsibilities
and working relationships of all offices involved in the enforce-
ment process (which includes both enforcement compliance activities
and enforcement legal activities) has received a strong endorsement
from the Administrator. The prescribed procedures provide explicit
guidance for implementing the Administrator's general policies on
these matters and are consistent with
The Administrator's June 12, 1981 announcement of a new
Headquarters structure;
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-2-
- The Administrator's September 15, 1981 memorandum regarding
a new regional organization structure;
- My May 7, 1982 memorandum regarding the reorganization
of the Offices of Regional Counsel;
- The June, 1977 Memorandum of Understanding between the
Department of Justice and EPA.
The operating procedures specified in this document are
designed to help accomplish the following objectives of the
Regional reorganizations stated in the Administrator's September
15, 1981 memorandum: /
Reorganization Objectives* Regional organization
decisions include consideration of the following objectives:
- Clarifying accountability for regional programs.
- Facilitating communication links between related
Headquarters and regional components.
- Improving regional policy and management
decision-making.
Placing functions in organizations where they can
best be integrated with related activities.
- Favoring fewer and larger organizations to avoid
subsequent further consolidation and reorganization
in a time of declining resources.
". . . . Major features of the authorized organization
include the following:
"1. Enforcement functions of permit issuance and related
compliance monitoring are assigned to the appropriate program
divisions. This includes issuance of notices of violation and
administrative orders, after consulting with the Office of
Regional Counsel. (Permit coordination functions and place-
ment are optional.)
"2. Legal work associated with enforcement litigation and
current Regional Counsel functions will be performed in newly
structured and expanded Offices of Regional Counsel reporting
to the [Associate Administrator for Legal and Enforcement
Counsel and] General Counsel with the following provisions:
"a. Regional Counsels will provide the Regional
Administrator[s] with legal advice and assistance for all
program areas in an attorney client relationship.
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-3-
"b. The Regional Administrator will continue to
initiate enforcement actions. These actions will be based
upon guidance from the [Associate Administrator for Legal
and Enforcement Counsel and General Counsel, through]
the Enforcement Counsel .... and with legal concurrence
of the Regional Counsel. I/
"c. As in the past the Regional Administrators
will participate in and concur with the [Associate Adminis-
trator for Legal and Enforcement Counsel and) General Counsel
in selections, promotions, awards and disciplinary actions
for Regional Counsels. Regional Administrators will be a
party to performance agreements for and will participate in
the performance ratings of Regional Counsels by the [Associate
Administrator for Legal and Enforcement Counsel and] General
Counsel.
"d. The Regional Administrator will also continue
to manage the resources of the Office of Regional Counsel and
will provide certain administrative support such as space
allocations, processing of personnel actions, and the management
of travel and training accounts."
T/Note that the Regional Counsel's formal concurrence
responsibility for enforcement actions as referenced in paragraph
2(b) (when read in conjunction with paragraph 1 of this excerpt)
arises at the point at which the Regional Administrator is prepared
to initiate a case referral by forwarding a case to the Office
of Legal and Enforcement Counsel for subsequent referral to the
Department of Justice. For further specifics on these procedures,
please see Section IX below. Note also that enforcement actions
(i.e. actions responding to specific instances of detected
violations), and enforcement activities generally, also should
be consistent with relevant guidance from Headquarters program
offices.
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-4-
The guidance in this memorandum on the enforcement process
applies to the internal Agency working relationships and
processes involved in identifying and resolving violations
using informal, administrative and judicial enforcement
activities. It does not apply in any respect to the development
and referral of criminal cases, which is being addressed in
a separate memo on general operating procedures for the criminal
enforcement program. Moreover, any existing program-specific
guidance on enforcement operating procedures remains in
effect until it can be expressly superseded by new guidance
which is consistent with the policies and procedures articulated
in this document. /
II. Enforcement Objectives
This guidance prescribes operating procedures which the
the Adminstrator has endorsed as vital to assist EPA in
discharging its responsibility to administer a strong,
aggressive, and fair enforcement program. The procedures
described here also are designed to achieve the following
enforcement objectives along with the general objectives
associated with the Regional reorganizations:
- Establishing an enforcement program which deters unlawful
conduct and advances the regulatory policies of EPA through
use of all available enforcement means.
- Maintaining a credible enforcement program which encourages
prompt, voluntary compliance, but deals firmly with
significant violations which cannot be resolved cooperatively
and includes the use of litigation where appropriate.
- Directing all enforcement activities towards the achievement
of maximum environmental benefits.
In order to help achieve these objectives, these procedures
emphasize:
- Continuing close and cooperative relationships
among the Office of Legal and Enforcement Counsel
(OLEC), which includes the Regional Counsel offices,
the Department of Justice (DOJ), and all EPA program
offices with enforcement responsibilities.
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-5-
- Working closely with States as partners in the enforcement
process. 2/
III. Roles and Relationships
EPA's enforcement program is intended to induce regulated
parties to meet environmental requirements and to rectify instances
of noncompliance. In order to accomplish these goals, EPA's
enforcement effort includes both compliance-oriented activities
and legal-oriented activities. The compliance activities are
primarily the responsibility of EPA's program offices, while the
legal activities are primarily charged to OLEC (including the
Offices of Regional Counsel).
While there are certain enforcement activities in which lead
responsibility is clear, there are other EPA activities which
include both compliance and legal elements. Moreover, different
activities for which a given office has lead responsibility can call
for varying degrees of involvement with other EPA offices. It is
crucial to the success of the Agency's enforcement program that
OLEC and the program offices work closely together in developing
policies, establishing coordination procedures and implementing
actions in areas where both elements are present. Similarly, it
is important that both OLEC and the program offices diligently
coordinate activities in their respective areas of primary responsi-
bility to ensure that EPA appropriately focuses all phases of its
enforcement program on achieving common objectives.
In the area of enforcement policy development, Assistant
Administrators have the lead in developing policies governing
compliance activities, while the Adminstrator has assigned me to
take the lead in developing policies governing legal matters.
OLEC and the Assistant Administrators are responsible for working
together in developing enforcement policy regardless of who has
the lead, and should jointly issue those policies which significantly
involve both of their respective areas of primary responsibility.
The Administrator has decided that I shall be responsible for
ensuring that all enforcement policies which EPA develops are
capable of being applied effectively and are consistent with the
goals of the Administrator under Federal law. The Associate
Administrator for Policy and Resource Management is responsible
for overseeing the formulation of all Agency policy.
2/ For a more specific discussion on coordinating enforcement
activity with States, see Section III(H) below.
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-6-
Program offices in Headquarters and the Regions are responsible
for identifying and establishing priorities for handling instances
of noncompliance within their respective areas of authorityr
evaluating the technical sufficiency of actions designed to remedy
violations, identifying for formal action those cases which cannot
be resolved less formally* and providing the technical support
necessary for developing cases and conducting litigation.
OLEC (including the Offices of Regional Counsel) serves
EPA's respective program offices in enforcement matters in an
attorney-client relationship. This means that OLEC is respon-
sible as legal counsel for providing client program offices with
support for informal and formal administrative resolution of
violations/ for the conduct of litigation (which includes
identifying evidence needed to support litigation), for interpreting
statutes, regulations and other legal precedent covering EPA's
activitiesr and for advising program managers on the legal
implications of alternative courses of action.
Close cooperation among all parties (including DOJ) during
the case development process is critical to a successful and
legally supportable enforcement program. Early and frequent
consultation of Regional Counsels by the Regional programs is
vital in case identification and development. Moreover, a close
working relationship with program or technical staff is vital
to the Regional Counsels to ensure that the Regional Counsels
can serve the clients' interests.
Regional Counsels are responsible for consulting with
the Associate Administrator for Legal and Enforcement Counsel and
General Counsel, through the Enforcement Counsel, and with
DOJ, where appropriate, to ensure that unresolved legal issues
do not subsequently become impediments to litigation. Similarly,
Regional Administrators are responsible for consulting early
with Assistant Administrators on program policy matters to resolve
expeditiously any issues that may cause problems in developing a
case for litigation. Representatives of EPA and DOJ offices
with enforcement responsibilities will work as a case development
team on a particular matter to coordinate their efforts and to
minimize or eliminate all problems prior to the Regional Counsel's
concurrence in a civil referral.
Finally, OLEC will develop management procedures to ensure
that Enforcement Counsel and General Counsel attorneys work
closely together to identify and resolve expeditiously any legal
issues pertaining to enforcement matters, and thus enable EPA to
speak with one legal voice.
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-7-
The following synopsis of roles and relationships state in
more detail the respective organizational responsibilities regarding
enforcement matters:
»
A. Regional Administrators. The Administrator's September
15, 1981 memorandum makes clear that Regional Administrators
have responsibility (consistent, as explained in Section IV
below, with applicable delegations of authority and concurrence
requirements) for enforcement compliance functions such as
issuing permits, monitoring compliance, collecting compliance
information according to Headquarters' guidance, and issuing
notices of violation and administrative orders. They are also
responsible for initiating enforcement legal actions arising out
of these functions. In executing these functions, the Regional
Administrator's responsibilities include building relationships
with State compliance programs, identifying violations of Federal
environmental laws, resolving those violations in a timely fashion
and a cooperative manner whenever possible, handling administrative
enforcement actions, and referring cases to Headquarters when
judicial action is necessary. Because the Regional Administrators
are primarily responsible and accountable for the successful
operation of Regional enforcement programs, they are the principal
clients in enforcement matters.
Notices of violation, administrative orders, administrative
civil penalty complaints, and many intermediate decisions are
actions with legal consequences. Since the Regional Administrators
must bear the responsibility for the legal sufficiency of their
actions, they should consult with their respective Offices of
Regional Counsel prior to taking these actions, as indicated in
the Administrator's September 15, 1981 memorandum. In addition,
because the Regional Administrators also are responsible for the
technical sufficiency of their actions, they are further responsible
for budgeting and supplying the necessary technical resources
and support, or otherwise arranging for that support (e.g., from
a Headquarters program office or the National Enforcement
Investigation Center), to permit the Agency to develop and pursue
enforcement actions, including litigation where appropriate.
The Regional Administrators are also responsible for obtaining
adequate Regional Counsel participation in preparing a case
(including final formal concurrence of the Regional Counsel)
prior to forwarding the case to Headquarters for formal referral
to DOJ.
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-8-
The Regional Administrators will be responsible for
ensuring that they follow all policy directives from an Assistant
Administrator. The Regional Administrators must ensure early in
the case development process that proposed enforcement actions
in response to specific instances of noncompliance are consistent
with national program policy directives established by the respon-
sible Assistant Administrator(s), and that Assistant Administrators
have the opportunity to participate in and review case development
activity. The Regional Administrators also must ensure that
they satisfy any national program review or concurrence require-
ments, consistent with Section IV below. OLEC normally will not
take responsibility for those program concurrences or reviews,
although staff attorneys will be available to assist throughout
the review process.
Regional Administrators also are responsible for following
up on.enforcement actions (including litigation) to ensure that
violations remain corrected and that regulated parties are complying
with the requirements which those enforcement actions impose.
B. The Assistant Administrators. As the national program
managers, the Assistant Administrators are responsible for
establishing enforcement compliance priorities, providing overall
direction to and developing accountability measures for their
respective Regional enforcement compliance programs, Keeping
compliance statistics (based on input as necessary from Regional
offices), providing technical support (including appropriate
Headquarters technical support for litigation activity), providing
resources in Regional program budgets to support enforcement
activities, taking the lead role in preparing guidance and policy
decisions on enforcement compliance issues, and concurring as
necessary on enforcement actions at as early a stage in the case
development process as possible. In addition, Assistant Adminis-
trators may retain responsibility for issuing civil administrative
complaints and other administrative orders in cases of first
impression, overriding national significance, or violations by
any entity in more than one region.
The Assistant Administrators are responsible for developing
and implementing program policies, and should rely on OLEC to
help them put enforceable, defensible programs in place. The
Assistant Administrators also are responsible for participating
with OLEC in handling enforcement legal issues and for preparing
joint guidance for areas in which compliance and legal issues
overlap.
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OLEC acts as attorney to the Assistant Administrator and
the Headquarters program offices on enforcement matters. OLEC
attorneys are available to consult with program staff during the
development of program regulations, policies and guidance in
order to ensure the legal sufficiency of decisions and documents
relating to enforcement matters.
C. OLEC; The Regional Counsel (Enforcement Functions). In
accordance with the Administrator's September 15, 1981 memorandum
and the May 7, 1982 memorandum regarding reorganization of the
Offices of Regional Counsel, the Regional Counsels are to provide
the Regional Administrators and Regional program managers with
legal advice and assistance for all program areas in the attorney-
client relationship. Thus, for example, in enforcement matters
the Regional Counsels are available to assist the Regional program
managers in drafting or reviewing the terms and conditions of
permits, notices of violation, administrative orders, or adminis-
trative complaints (particularly where new or unique matters
are involved). Because the Regional Administrators and Regional
program managers are responsible for ensuring the enforceability
and defensibility of documents with legal effects, they should
not hesitate to seek to involve Regional Counsels in developing
these documents.
The Regional Counsels also provide assistance throughout the
case development process, participate in litigation activities
under the EPA/DOJ Memorandum of Understanding, and formally
concur on civil referrals prior to signature by the Regional
Administrator. Regional Counsels' formal concurrence ensures
that any legal issues associated with the referral have been
addressed appropriately and that these referrals are consistent
with OLEC guidance. Regional Counsels also are available to
assist in negotiating enforcement matters and should be present
whenever outside parties are represented by counsel in those
negotiations.
Regional Counsel attorneys normally serve as lead Agency
counsel in handling specific enforcement actions, consistent with
the discussion of that concept in Section VII(B) of the May 7,
1982 memorandum on regional reorganization. As lead Agency attorney,
the Regional attorney is responsible for managing an enforcement
case for EPA and for coordinating case development and litigation
activity with DOJ as discussed in Section VIII below. The Regional
Counsels should establish practices to coordinate the participation
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-10-
of DOJ and Headquarters Enforcement Counsel attorneys so as to
resolve any potential legal problems for litigation as early in
the case development process as possible. Regional Counsels
also provide legal representation fcir the Agency in administrative
hearings originating in the region, including NPDES evidentiary
hearings, and administrative appeals from those hearings.
Let me emphasize that in all these matters the Regional
Counsels must make every effort to ensure that they continue
to maintain the close working relationships with their counterparts
in the Regional program offices, apd that they also maintain
clear and open lines of communication.
D. OLEC; Enforcement Counsel Matters. Consistent with
attorney-client relationships, the Associate Administrator for
Legal and Enforcement Counsel and General Counsel provides,
through the Enforcement Counsel, legal advice regarding enforce-
ment matters to the Assistant Administrators to assist them in
performing their programmatic functions, including advice on
enforcement activities for which Headquarters program offices
are responsible. The Associate Administrator for Legal and En-
forcement Counsel and General Counsel, through the Enforcement
Counsel, also develops legal enforcement policies and guidance;
confers, where appropriate, with DOJ on the potential impact of
enforcement policy on litigation; and cooperates with the Assis-
tant Administrators in the development of enforcement policies
which involve both enforcement compliance and enforcement legal
activities.
The Enforcement Counsel checks both cases forwarded from
the Regions for referral to DOJ and consent decrees prior to
submitting them for approval to the Associate Administrator for
Legal and Enforcement Counsel and General Counsel to ensure that
they are complete and that they identify and properly address
all precedential or nationally significant questions. (See
Section X below.) Enforcement Counsel attorneys may be assigned
a more active role in case development or litigation-related
activities in a limited number of actions involving precedential
or overriding nationally significant issues as described in
Section VII(B) in the Nay 7, 1982 OLEC memorandum on regional
reorganization. Otherwise, Regional Counsel attorneys will
assume the Agency lead, and Enforcement Counsel attorneys will
function in a supporting role by keeping apprised of the issues
from the start of the case development process as OLEC's Headquar-
ters representatives and by coordinating legal activity and the
contribution of case information to the case development effort
from Headquarters and the Regions.
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The National Enforcement Investigation Center (NEIC), which
reports to the Enforcement Counsel, is a national technical resource
with special expertise in matters asociated with investigations,
case development, litigation support, and evidence. The Regional
Administrators and Assistant Administrators, in support of enforce-
ment compliance and case development activities, may draw upon
the NEIC's resources as they deem necessary, consistent with
priorities which OLEC establishes regarding NEIC's availability.
Regional and Assistant Administrators should give closest
consideration to involving NEIC in cases which have precedential
implications, national significance, or are multi-Regional in
nature, as opposed to cases which Involve more routine matters.
E. OLEC; General Counsel Matters. Within the Agency,
tne Associate Administrator for Legal and Enforcement Counsel
and General Counsel, through the Deputy General Counsel, will
continue to be responsible for interpreting statutes and regula-
tions, reviewing proposed policy for consistency with national
law, providing national legal interpretations, and assisting in
resolving legal issues which arise in connection with policies
and regulations, in order to assure that the Agency speaks with
one legal voice. Consistent with present practices and existing
guidance, the Associate Administrator for Legal and Enforcement
Counsel and General Counsel will manage, through the Deputy
General Counsel, all matters resulting from judicial appeals
(with either General Counsel attorneys or Regional attorneys
acting as lead Agency counsel, depending on the nature of the
matter). The Regional Counsels will manage the Agency's legal
role in hearings and administrative appeals of actions origina-
ting in the Regions, including proceedings relating to permits
and administrative civil penalty actions.
F. The Department of Justice and the U.S. Attorneys' Offices.
The Agency's working relationship with the Department of Justice
and the U.S. Attorneys continues to be governed by the June 1977
Memorandum of Understanding. DOJ's and the U.S. Attorneys'
primary roles will normally be that of conducting judicial enforce-
ment matters and participating in case development activities as
described in Section VIII below. OLEC's Headquarters and Regional
components are expected to use their best efforts to ensure that
they maintain constructive working relationships with DOJ in
these areas.
6. Policy Coordination. As indicated above, the Assistant
Administrators and I should work closely together during the
formulation of all policies which affect enforcement to make
sure that the Agency conducts its enforcement activity in a
credible and legally supportable manner. The Administrator has
affirmed my responsibility to take the lead in coordinating
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work on establishing systematic procedures for developing and
tracking Agency enforcement policy. As part of this effort, I
am planning to propose the joint development with each of the
Assistant Administrators of a comprehensive set of enforcement
operating procedures for each program, in order to provide
consistent guidance for all stages of the case development
process. Program guidance which is currently in effect remains
operative except to the extent it is inconsistent with the
operating procedures prescribed in this document and is not
superseded by future guidance.
As policy or guidance documents affecting Regional enforce-
ment programs are developed, Regional offices should be consulted
or otherwise receive an opportunity to be involved at an early
stage to make sure that the final guidance documents can be
implemented effectively.
H. Coordination with States. Coordination with States is
normally the responsibility of the Regional Administrator, subject
to national guidance. Because this responsibility encompasses
many areas in addition to enforcement, this memorandum does not
cover general issues associated with the Region-State relationship.
On enforcement matters, however, Regional Administrators
should maintain close working relationships with appropriate
State program officials. As part of enforcement planning activities
independent of the case development process, Regional offices (with
participation from Headquarters program offices and consistent
with national guidance) should consult with States to develop
general strategies for handling noncompliance, for promoting
local resolution of noncompliance problems, and for facilitating
open lines of communication by
0 Consulting on which enforcement actions States should
manage and which Regional Offices should manage.
0 Agreeing on appropriate time frames and parameters for case
resolution.
0 Agreeing on circumstances under which EPA may assume the
lead on a case from the State.
0 Coordinating activity on tracking the progress of enforcement
actions.
0 Following up on the application of agreed-upon strategies to
ensure their effectiveness.
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-13-
On legal matters specifically, the Office of Regional Counsel
should develop a close working relationship with State Attorneys
General and/or other appropriate legal authorities in each State
in order to support the Regional .Administrator in coordinating
activity with that State. The Office of Regional Counsel is also
available to consult with the Regional program managers regarding
delegations/ the legal sufficiency of State remedies, or other
legal aspects of State actions.
National environmental laws do assign major roles to the
States for administering pollution control programs. Those laws
also place ultimate responsibilities for effective enforcement
on the Federal Government. The States' respective abilities to
enforce environmental requirements can vary according to the
elai-utory authorities, personnel, or other resources available
to them. It is the Administrator's policy to uphold the
environmental statutes which EPA administers, and the Regional
Administrators are responsible for complementing State efforts
with Federal action in order to achieve compliance with those
laws in a timely manner.
I. EPA's Accountability System. EPA's accountability system,
overseen by the Associate Administrator for Policy and Resource
Management, monitors the performance of the Agency's entire enforce-
ment program, including both compliance and legal activities.
It is the Administrator's policy that pursuant to national program
direction from the Assistant Administrators, Regional Administrators
will establish specific measures of compliance and enforcement
performance for which they will be held accountable in the
accountability system. As the Agency's "law firm", OLEC will be
similarly accountable for providing consistent legal advice,
decisions and policies; for expediting all referrals; and for
reducing backlogs of cases which have already been filed or
referred to the Department of Justice.
IV. Delegations and Concurrence Requirements.
The Administrator has endorsed an initiative to streamline
the enforcement process through a high-priority review of both
existing delegations of authority and concurrence requirements
imposed through those delegations or through other actions.
Each of the Assistant Administrators and OLEC should expeditiously
review all delegations and concurrence requirements relating to
enforcement activities in their respective areas of responsibility
to identify requirements which are unnecessary or inconsistent
with a streamlined approach to enforcement. Until the Administra-
tor has an opportunity to act on the recommendations resulting from
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-14-
this review, existing delegations (with any conditions) remain
in effect and should be followed until appropriate changes are
approved to implement the guidance provided in this document.
The Assistant Administrators and I shall announce any changes
of specific enforcement concurrence requirements in our respec-
tive areas of responsibility.
V. Reporting Requirements and OLEC Oversight
OLEC's Enforcement Counsel will keep to a minimum requests
for case development records and reports from Regional or
program offices. Enforcement Counsel staff will place priority
on direct access to files or tracking and reporting systems for
case information to minimize additional information collection
and reporting burdens. I expect the Regional Counsels to continue
to update the automated enforcement docket for cases which will
be or which already have been referred from the Regional offices,
and to provide periodic updates on all cases as necessary.
Consistent with historical practices. Regional Counsels must
keep complete records of recommendations, decisions and documents
relating to the legal aspects of all cases, including cases which
are in early stages of development. This requirement is intended
to ensure that an adequate legal record exists for each case that
the Agency ultimately refers for judicial action and to facilitate
evaluations of Regional Counsels' performance on enforcement
matters.
The Regional Counsel should work closely with the Regional
Administrator to assist the Regional Administrator in following
similar recordkeeping practices to ensure that maintained files
are legally sufficient.
VI. Reviewing Compliance and Determining Responses.
The process of identifying violations and conducting Federal
compliance activities is the responsibility of the Regional
Administrator, consistent with national guidance and statutory
authorities and with applicable working agreements with States.
This process includes the following activities:
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-15-
- Identifying noncomplying sources and potential enforcement
..,.... . targets.
- Coordinating enforcement actions with States, as appropriate.
- Determining the appropriate Agency response to violations,
including:
Requests for information (formal or informal).
Informal discussions with the source.
/
0 Warning letters or notices of violation.
Administrative orders or administrative civil penalty
complaints.
0 Referrals to Headquarters for civil judicial action.
- Participating in a client's role in settlement discussions
to resolve administrative or judicial proceedings*
Throughout the process, the Regional Counsel will act as
attorney to the Regional program client. Since the Regional
Administrator must make decisions and take actions with legal
consequences, the Regional Administrator should ensure that the
Regional Counsel is consulted as appropriate throughout the process,
particularly with regard to the legal consequences of selecting
alternative enforcement tools. Attorneys are available to
ensure that all enforcement documents, especially administrative
orders and administrative civil penalty complaints, meet all
Agency legal requirements and are enforceable. Regional program
officers should avail themselves of Regional Counsel attorney
participation in discussions with an outside party who is represented
by counsel.
As the likelihood increases that judicial remedies will
become necessary to resolve a case, the importance of attorney
involvement also increases. This includes meaningful coordination
with DOJ attorneys at early stages of the case development process
consistent with the procedures specified in Section VIII below.
Rigorous standards of evidence and conduct will apply in any
adjudicative proceeding; thus, it is crucial that cases be built from
the outset in a legally supportable way. This memorandum discusses
in more detail in subsequent sections the referral process and the
conduct of settlement negotiations.
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VII. Escalation
The Regional Administrator is responsible for the timeliness
of informal solutions to violations of environmental laws and
for initiating the case development process. This concept is
central to a credible enforcement program. The Regional
Administrator (subject to Headquarters program office guidance)
and OLEC share responsibility for achieving timely resolution of
cases once the case development process begins.
Responses to violations should be meticulously tracked within
each Region to make sure that each violation Is responsibly resolved
as expeditiously as practicable. Time deadlines or goals should
be established within each Region as optimum response times; in
so? areasr these deadlines or goals have already been established
in national guidance.
The Administrator has given strong general support to the
use of reasonable "deadline" dates in conducting negotiations to
ensure that negotiations do not become a means for delay. In
any particular case, the Regional Administrator (in consultation
with the Regional Counsel) should always be prepared to escalate
to the next-most-serious response, when necessary, to avoid pro-
tracted negotiations resulting in unreasonably delayed remedial
action.
It remains the Administrator's policy to take formal enforce-
ment action when negotiations or other efforts fail. I shall
accept--and the Administrator will encourage--well-documented
civil judicial referrals from Regional Administrators whenever,
in their judgement, such action is necessary to ensure continued
progress toward compliance, even though active negotiations
still may be underway.
VIII. The Case Development Process
A group from OLEC (including Regional Counsel representatives)
has been conferring with DOJ for the purpose of, among other things,
formulating a process for developing cases for civil litigation.
This process involves periodic meetings in the Regions, at which
EPA attorneys and technical staff will meet with DOJ attorneys
(and invite Assistant U.S. Attorneys) to:
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discuss approaches to developing cases targeted as likely
candidates for litigation;
review appropriate ways to handle developments relating to
cases discussed at prior meetings;
provide information on program enforcement issues and
priorities;
refine procedures for handling enforcement actions generally;
and
-- form litigation teams and assign case preparation and
responsibilities where the Region has identified matters
which require a litigation enforcement response.
Once the Regional Administrator determines that a case has
a strong potential for referral, the Region will form a case
development team consisting of the lead Agency attorney and
representatives from the Regional program staff and DOJ. 3/ The
goal of this team is to reach a resolution of the enforcement
action, based on the technical support of the Regional Administrator,
through negotiated settlement or final judgement in litigation.
For each case, EPA will designate a lead Agency attorney.
As stated in the Hay 7, 1982 memorandum regarding reorganization
of the Office of Regional Counsel, the lead Agency attorney will
normally be a Regional attorney, but may be a Headquarters attorney
under some circumstances. Section VII(B) of that memorandum
provides a more detailed discussion of circumstances in which a
Headquarters attorney might be assigned the Agency lead (for
example, in cases of overriding national significance or in some
cases in which the Agency is involved in enforcement and defensive
litigation). The lead Agency attorney will coordinate case
development activities with DOJ.
3/ Headquarters program and Enforcement Counsel staff may participate
more actively in the case development process if precedential or
nationally significant issues are involved, especially under newly
developing programs.
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IX. The Referral Process
Consistent with the Administrator's September 15, 1981
memorandum, the Regional Administrator will initiate referrals
of enforcement cases in which settlement negotiations outside
the context of litigation either have been unsuccessful or are
otherwise inappropriate due, e.g^L, to the need to halt the
violation quickly. The Regional Administrator initiates a
referral by forwarding a case to me with a recommendation to
refer that case to DOJ for litigation. The Regional Counsel's
formal concurrence shall ensure that the initiated referral is
legally sufficient and consistent /with national guidance. Early
involvement by appropriate EPA and DOJ staff, through the case
development procedures articulated in Section VIII above, is
important to the successful development of a judicial referral.
This early involvement will reduce the need for development and
review of documents in a formal referral package late in the
case development process. Regional Administrators are responsible
for supporting this practice within their programs.
As the initiator of the referral, the Regional Administrator
is ultimately responsible for the completeness and quality of the
development of the forwarded case. This includes conformance with
all applicable national guidance and policies established by OLEC
and by the appropriate program office.
Inasmuch as a case developed for referral can require the
drafting of important legal documents (e.g. complaint, consent
decree, memoranda on points of law), it is highly advisable that
the Regional Administrator assign the actual task of preparing
those documents in conjunction with DOJ to the lead Agency attorney
on the litigation team. A case developed for referral will rely
upon technical information and support from the Regional program
office and, where appropriate, from the Headquarters program
office. This method is likely to ensure the legal sufficiency
of the case when the Regional Administrator initiates the referral.
Every request for judicial action must have the formal concurrence
of the Regional Counsel before the Regional Administrator initiates
referral by forwarding the case to Headquarters.
To support a referral, the Regional Administrator must be
in a position to identify all technical assistance needed to
bring the case to successful completion. Jhe act of forwarding
the case to Headquarters for referral constitutes the Regional
Administrator's commitment to ensure that this technical assistance
and technical support which may later be identified is available
when needed.
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-19-
X. Headquarters Review of Case Development
Under the June 1977 EPA/DOJ Memorandum of Understanding",
the Associate Administrator for Legal and Enforcement Counsel
is responsible for formally transmitting a civil referral to the
DOJ. 4/ Headquarters attorneys will conduct a limited final
legal~review on my behalf of cases forwarded for referral from
the Regions primarily to ensure completeness, consistent applica-
tion of law and enforcement policy, and appropriate development
of legal precedent. For some cases involving important precedent
or issues of overriding national significance, Headquarters
attorneys also may be assigned a more active role in the case
development process. /
Again, Regional Counsel lead attorneys must undertake
early consultation with Headquarters and DOJ attorneys through the
case development team format as cases are being prepared. In
this manner, case development teams can identify precedential
or nationally significant issues early and can reduce the likeli-
hood that DOJ or the U.S. Attorney will raise concerns late in
the referral process regarding the advisability of pursuing
civil litigation.
4/ The term "Assistant Administrator for Enforcement" in the
Memorandum was changed to "Associate Administrator for Legal
and Enforcement Counsel" by letter of the Administrator to the
Attorney General, in order to reflect the Agency's new organi-
zational structure.
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-20-
Similarly, close coordination by the lead Agency attorney
with technical personnel in the Regional program office (who
in turn should work closely with the Headquarters program office)
and any NEIC participants is also essential in order to achieve
early agreement on appropriate remedies, schedules/ and other
technical aspects of the case prior to referral. Headquarters
program review of case development on behalf of Assistant
Administrators also will begin early in the process to identify
and resolve problems quickly and will focus on ensuring technical
completeness and appropriate application of program policy. In
this area as well, Headquarters program officials may be assigned
a more active role in cases involving important precedent, overrid-
ing national program significance', or activity in more than one
region. Headquarters program officials must ensure that they
perform their review function in a manner that avoids impeding
the expeditious referral of cases to DOJ once the Regional
Administrators have forwarded those cases to Headquarters.
XI. After EPA Refers a Case to DOJ
Following the referral of a case to DOJ, the lead Agency
attorney on the case will be responsible for coordinating responses
to all requests for supplemental information by the Department
or by the U.S. Attorney's Office. Program office staff will be
responsible for providing needed technical support. The lead
Agency attorney is responsible for keeping program officials and
other previously involved Agency attorneys apprised of case
developments after referrals.
XII. Negotiations
The Regional Administrators will normally be responsible for
ensuring a sound technical and scientific basis for resolutions of
identified violations. Prior to EPA referring an enforcement case
to DOJ, the Regional Administrators normally will be responsible
for directing or conducting informal settlement negotiations (subject
to the program-specific guidance which will be forthcoming). The
Regional Counsel should be present at discussions in which outside
parties are represented by counsel. Once the case has been referred,
DOJ normally is responsible for managing settlement discussions,
with the active participation of Regional personnel, in the context
of an attorney-client relationship. Regional Counsels will make
every effort to identify resources needed for negotiations
in close consultation with program managers.
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The Administrator has affirmed that I urge OLEC staff at
Headquarters and in the Regions to caution their "client" program
offices and others within the Agency about the sensitivity of
contacts with persons or firms that are involved in cases
referred to DOJ for filing. There are many matters unrelated
to a specific enforcement actione.g., processing of grants,
development of rulesin which a party may be interested and
which may be discussed without counsel present. Care should be
taken, however, to determine the purpose(s) for which meetings
are sought by defendants and potential defendants so that appro-
priate arrangements can be made. ,If matters related to a pending
case are raised by such persons during the course of a meeting
arranged for other purposes, any discussion of the case should
be interrupted and continued only after consultation with an
Agency attorney assigned to the case.
XIII. Enforcing Consent Decrees and Final Orders
Following the entry of a consent decree or final order,
compliance assessment is the responsibility of the Regional
Administrator, in the same way that the Regional Administrator
assesses compliance with statutory or regulatory requirements.
In the event that a source violates a consent decree or order,
^motion for contempt or modification of the decree may be appro-
priate. The decision to file for contempt or to negotiate a
modification will normally be the Regional Administrator's,
based upon the advice of the Regional Counsel and subject to
national guidance issued by the responsible Assistant Administrator
or OLEC. Since the violation would concern a filed case and a
consent decree modification would involve a court order, DOJ and
the U.S. Attorney's Office should be given the opportunity to
take part in any of those discussions. Negotiations with affected
parties should be conducted in the manner described previously
in this document (with an opportunity for Assistant Administrator
participation). All modifications to consent decrees must be
approved in the same manner as the original consent decrees.
XIV. Appeals
General Counsel attorneys serve as the Agency's principal
defense lawyers and are responsible for any matter before Courts of
Appeals, including appeals of decisions re-la ting to enforcement
actions. In such cases, the lead General Counsel attorney will
continue to be determined in accordance with a memorandum of
December 14, 1979 on the subject from the Deputy General Counsel.
The lead Agency attorney on the appeal will be responsible for
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-22-
working closely with the lead Agency attorney appointed to the
original enforcement case, as well as the appropriate Regional and
Headquarters program office personnel. The lead Agency attorney
originally appointed to an administrative enforcement action
which is subsequently appealed normally will serve as co-counsel
with the General Counsel attorney in the Court of Appeals.
'With regard to hearings before an administrative law judge
or appeals of administrative actions to the Administrator, the
Regional Counsel will normally provide legal representation for the
Agency on matters arising in the Regions, including permit conditions
and administrative civil penalty decisions. However, in accordance
with the OLEC memorandum of May 7, 1982, on regional reorganization,
when issues of overriding national significance exist, or when
Headquarters initiates the administrative action, the lead nay be
assigned to a Headquarters attorney, upon the agreement of the
Regional Counsel and the appropriate supervisor in the Enforcement
Counsel's office.
XV. Communications/Press Relations
Throughout the enforcement process, the Regional Administrator
is responsible for ensuring that the appropriate information
flows openly and smoothly to all parties with a legitimate interest
in the final outcome. Once a matter is referred to DOJ, however,
all Agency personnel should exercise care in releasing any infor-
mation or statement, including press releases, in connection with
the matter without previously consulting DOJ. The lead Agency
attorney is responsible for the smooth and complete flow of
information to supporting attorneys within the Agency and in DOJ.
The Regional Administrator and the Regional program managers
are responsible for communicating with States, except if a State
is a party to a filed judicial action. In that case, the U.S.
Attorney and DOJ should participate in or be consulted about any
such communications.
Likewise, the Regional Administrator will normally be
responsible for handling any press inquiries or releases concerning
an enforcement action. The Regional Counsel is available to provide
legal advice on the handling of those matters. Upon occasion,
such inquiries or press releases may be handled best by the Enforce-
ment Counsel or the appropriate Assistant Administrator, but only
when all parties and the press office agree that this procedure is
the best course of action. For filed actions, DOJ or the U.S.
Attorney's office should be consulted before interacting with the
press.
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In the event of inquiries from Congress, OLEC will work
closely with the Regional Administrators, the appropriate
Assistant Administrator, and the Congressional Liaison Office
prior to releasing any information or making any public
statements.
XVI. Reservation
The policy and procedures set forth herein, and internal
office procedures adopted pursuant hereto, are intended
solely for the guidance of government personnel. They are
not intended to, do not, and may hot be relied upon to create
a right or benefit, substantive or procedural, enforceable
at law by a party to litigation with the United States
Environmental Protection Agency. The Agency reserves the
right to take any action alleged to be at variance with
these policies and procedures or not in compliance with
internal office procedures that may be adopted pursuant to
these materials.
XVII. Delegation of Authority
Through a memorandum issued as a cover to this document,
the Administrator is delegating to me the authority to construe,
interpret or amend the guidance prescribed here. She similarly
has delegated to me the authority for issuing any follow-up
guidance for implementing the general operating procedures
prescribed here, unless the follow-up guidance is limited to
matters for which a single Assistant Administrator or Regional
Administrator is solely responsible. Of course, I shall work
closely with affected Assistant or Regional Administrators
in deciding how to exercise these delgated authorities, and
in appropriate cases shall issue national guidance jointly with
the relevant national program managers.
XVIII. Superseded Policy
These procedures supersede the policies and procedures issued
by the Enforcement Counsel on February 26, 1982, which are revoked
in their entirety.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, DC 20460
SEP ?
OFFICE OF
LEGAL AND ENFORCEMENT COUNSEL
MEMORANDUM
SUBJECT: Case Referrals for Civil-Litigation
FROM: Michael A. Brown vJJJv^^-*-^
Acting Enforcementcounsel
Deputy General Counsel
TO: Regional Counsels
A review of our recent enforcement referrals for proposed
civil litigation JL/ and conferences with the Department of Justice
have revealed that certain points relating to case development
and litigation activities must again be emphasized and some new
"ground rules" should be set forth. This memorandum is intended
to supplement the General Operating Procedures memorandum governing
EPA's enforcement activity which was issued on July 6, 1982.
Quality of Referrals
I want to stress that a case should not be forwarded to
Headquarters for referral to DOJ unless you fully intend that the
case should be filed. Sending a case forward merely to get credit
for the case is a waste of your time and ours. We want to
concentrate on properly developed cases that will actually be
filed, not merely paper to be referred to DOJ that results in no
action. In addition, referrals to Headquarters and DOJ for the
purpose of applying pressure on a party to settle should not be
made unless the Regional Office is willing to carry the case
through a suit.
My review of the past numbers of referrals by EPA to DOJ
compared to the actual number of cases that are filed reveals
that past practices resulted in a considerable disparity between
the two numbers. You, and especially the Regional Administrator,
should be prepared to support a case that is referred to
Headquarters all the way through trial.
This memorandum applies only to referrals for civil litigation,
Guidance for referral of cases for criminal proceedings will
be addressed in a subsequent memorandum.
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Case Development Process
We expect that DOJ and Headquarters' involvement in the case
development process will continue to be intensive in hazardous
waste and Superfund cases in the future. This is because these
are new areas of the law, without much precedent. In the more
mature areas (air and water cases) we expect the case development
process to be more informal. For example, in many cases the
coordination between Headquarters, DOJ attorneys and Regional
attorneys may be accomplished by infrequent meetings and telephone
contacts.
The need for Headquarters Enforcement Counsel or DOJ
involvement in a case at an early stage depends upon sound
judgment. If the case, even though in a mature program, presents
national issues, contains novel problems, requires extra support,
or has other areas in which you or your attorneys would like
support from or the views of Headquarters, the Department of
Justice or both, we will provide it. However, we do not want
to make the case development process a burden on the Regions in
air and water cases which do not require it.
It is essential that Regional attorneys apprise Headquarters
and DOJ counsel of new cases which are under development as soon
as sufficient information is acquired about the cases to enable a
determination to be made that they have potential for referral.
This is necessary in order that the Regions, Headquarters and DOJ
can plan resource needs, litigation support and budgetary requests.
We anticipate that increased use of our computer system by the
Regional Offices will aid in the advance notification of emerging
cases.
Referral Package
As the case development process, including early DOJ
involvement, becomes widespread, we will be able to significantly
reduce the supporting paperwork you send to EPA Headquarters to
accompany a referred case. In order to achieve this result, it
is highly desirable for the Regional attorney to acquaint the
appropriate Headquarters and DOJ attorneys with developing cases
by telephone and at regional meetings at an early stage. In any
event, as described in the following paragraph, certain basic
information in the form of a referral memorandum should accompany
the litigation report at the time the case is formally referred
to Headquarters, in addition to the more comprehensive litigation
report.
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When a case is forwarded to Headquarters for referral to
DOJ, the referral memorandum, at a minimum, should include
identification of the potential defendants, a factual summary,
identification of issues, status of past Agency enforcement efforts,
and the names of Agency and DOJ attorneys who are involved in
the case, including the lead attorney. This should be accompanied
by the litigation report, together with a copy of the relevant
papers in the case file and such other accompanying explanatory
memoranda or analyses as have been agreed to between the Regional
attorney, the Headquarters attorney and the DOJ attorney working
on the case.
One particular need in a case referral is to identify the
problems that may exist with the case. In the past many documents
forwarding cases to EPA Headquarters have been pure advocacy
documents. By this I mean they stressed only the positive side
of a case. However, once the case was referred to DOJ and work
began, problems that might complicate the prosecution of the case
would then be revealed. In order to properly focus your resources
and ours, it is necessary that initial forwarding paperwork
include a description of all problems that may accompany the
prosecution of the case. Further, if problems are identified
after the case has been forwarded to Headquarters, the referral
paperwork should be supplemented to include these problems.
Early involvement by Headquarters, and DOJ where appropriate,
should provide for early identification and resolution of such
problems. Your credibility with Headquarters and EPA's credibility
with DOJ are not aided by selling a case that must be "unsold"
when reality sets in.
Lead Attorney
The lead attorney responsibility establishes an accountable
party for the progress of the case. It has become apparent that
many times the failure of a case to move forward is a direct
result of the lack of an identifiable lead attorney who bears
the responsibility for the progress of that case. Responsibility
cannot be vaguely shared between two or three attorneys. Someone
has to have the lead designation if for no other reason than to
act as a focal point, prescribe milestones, and make appropriate
reports.
At such time as you begin the case development process there
should be a clear understanding between the Agency attorneys
about who will take the lead in the case development phase.
Ordinarily the lead attorney in the development phase will be a
Regional attorney. However, in cases of national significance
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-4-
or cases without precedent, the lead attorney, even in the develop-
ment phase, may be an attorney from Headquarters or DOJ. After
the case has been referred to DOJ., there should again be a conference
between the appropriate Regional, Headquarters and DOJ attorneys
to determine if the lead in the case should shift. If so, the
new lead attorney should be designated and his/her identity
clearly understood by all parties to the case, including technical
support personnel. When the case is filed, the lead responsibility
should again be agreed to by the attorneys and conveyed to all
other parties involved in prosecuting the case. At all times,
the computer system should be kept current on the identity of
the lead attorney.
Regardless.of who has the lead, the responsibility for the
initial" documentation of statutory violations and development of
supporting data that justifies referral of a case to DOJ for
litigation always rests with EPA attorneys. In addition, I expect
that EPA attorneys will be responsible for developing and
maintaining a thorough understanding of the facts of the case,
the issues involved or which may be raised, Agency policies which
affect or may be affected by the case, and to serve as spokesperson
on the case development and litigation team for EPA's views.
When a case is referred to the Department of Justice, the
Department will, in consultation with EPA, and in accordance with
the Memorandum of Understanding between the agencies, designate a
lead case attorney. The DOJ lead attorney will be responsible
for and have authority to require development of case strategy
and tactics; evaluate the quality and quantity of evidence necessary
to prove the government's case; assign and coordinate responsibilities
to litigation team members, including technical personnel; and
insure that all necessary government personnel are fully informed
of case progress. The lead attorney will also communicate as
the government's spokesperson with defendants; and undertake the
necessary case preparation to move the matter expeditiously to
trial.
Generally, the lead attorney after referral of a case will
be from the Department of Justice or United States Attorneys
Office. This is consistent with the Attorney General's statutory
responsibility for litigation involving the United States and
its Agencies and the Memorandum of Understanding. On a case by
case basis EPA attorneys may be assigned lead responsibility.
When this occurs, the EPA attorney assigned lead responsibility
will be supervised by the Chief of the Environmental Enforcement
Section of the DOJ with respect to litigation matters.
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It is essential that all litigation team members understand
their respective responsibilities and cooperate in the litigation
effort. Experience demonstrates that cases which are actively
moved to trial provide a full opportunity for each attorney to
gain meaningful experience in litigation. Without this support
our litigation effort cannot succeed.
The computer system should at all times reflect the identity
of the lead case attorney. In each case, EPA will designate an
EPA attorney who will continue to be responsible for coordinating
agency input.
Further Clarification
I realize that this guidance does not prescribe exact
procedures for every conceivable situation. However, I am looking
to you as Regional Counsels to exercise your best professional
judgment in supervising your Regional attorneys. Please let me
know in those instances where attorneys from Headquarters and the
Regional attorneys are unable to reach agreement on the handling
of cases. Further, the Headquarters Associate Enforcement Counsel
and I stand ready to help you in any dealings with DOJ, if
necessary.
Goal
I want to emphasize that the goal of EPA is for expeditious,
efficient, and successful prosecution of our enforcement cases.
It does not matter who gets the credit or the lead; what does
matter is whether the cases are worth the time of all the parties
involved, are filed and prosecuted in a timely manner, and achieve
protection for the public and the environment.
cc: Robert M. Perry
Steve Ramsey
Associate Enforcement Counsels
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, DC X04«0
CCT I 2 JS82
L*OAL AND CNFOMCCMENT COUNCCl.
MEMORANDUM
SUBJECT: Criminal Enforcement priorities for the
Environmental Protection Agency
FROM: Robert M. Perry
Associate Administrator
TO: Regional Counsels, Regions I-X
Criminal case development and referrals will constitute
an important component of EPA's overall enforcement effort.
The success of the criminal enforcement program will depend
on the Agency's ability to act with professionalism, and with
one mind, in identifying, investigating and referring cases
for criminal prosecution.
To achieve this objective, our Criminal Enforcement
Division is currently recruiting a staff of 25 experienced
criminal investigators. In addition, the Office of Legal
and Enforcement Counsel, working with the assistance and
guidance of EPA's media program offices, has developed the
attached "Criminal Enforcement Priorities" for the Agency.
These guidelines have been drafted so that the objectives
and interests of EPA's program offices are reflected in,
and furthered by, the Agency's criminal enforcement efforts.
In addition, the implementation of these guidelines will
guarantee that the legal and investigative resources of the
Office of Legal and Enforcement Counsel, and the technical
resources of EPA's program offices, are focussed on cases
of the most serious environmental misconduct.
The attached Criminal Enforcement Priorities are effective
immediately, and replace any existing Agency guidance on this
subject. Please ensure that these priorities are circulated
with the appropriate Regional program offices. Any questions
on these priorities can be directed to Peter Beeson, Director,
Criminal Enforcement Division, Office of Legal and Enforcement
Counsel (FTS 382-4543).
Attachment X
cc: Assistant Administrators
Regional Administrators, Regions I-X
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CRIMINAL ENFORCEMENT PRIORITIES
United States Environmental
Protection Agency
Effective Date:
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TABLE OF CONTENTS
PART I: THE DECISION TO PURSUE CRIMINAL
SANCTIONS 1
A. The Scienter Requirement*...............I
B. The Nature and Seriousness
of the Offense. .2
C. The Need for Deterrence.................3
D. Compliance History of the
Subject(s) 3
E. The Need for Simultaneous
Civil or Administrative
Enforcement Action......................3
PART Us CRIMINAL ENFORCEMENT
PRIORITIES 5
A. Investigative Priorities:
Resource Conservation and Recovery Act
(RCRA) 5
1. Knowing Endangerment 5
2. Illegal Transportation and
Disposal of Hazardous Waste... 6
3. Falsification of RCRA Records 6
4. Destruction, Concealment or
Alteration of RCRA Records ...6
B. Investigative Priorities:
Comprehensive Environmental Response,
Compensation and Liability Act
(Superf und) 6
1. Failure to Notify of a Release
of a Hazardous Substance 6
2. Destruction or Falsification
of Super fund Records 7
C. Investigative Priorities:
Clean Water Act (CWA) 7
1. Violations of the NPDES
Permit Program 7
2. Falsification of CWA Records *
and Monitor Tampering ...7
3. Unpermitted Discharges .....8
D. Investigative Priorities:
The Clean Air Act (CAA) B
1. Violations of State
Implementation Plans 8
2. Violations of Hazardous...,
Air Pollutant Standards 8
3. Falsification of CAA Records
and Monitor Tampering 9
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E. Investigative Priorities:
The Toxic Substances Control
Act (TSCA) .9
1. Falsification of Data Required
under a Testing Rule or the
Premanufacture Notification
Program 9
2. Failure to Report Substantial
Risk Information .......9
3. Violation of PCB or Dioxin
Regulations .9
F. Investigative Priorities:
The Federal Insecticide/ Fungicide
and Rodenticide Act (FIFRA) 10
1. Failure to Report Information
on the Unreasonable Adverse
Effects of a Registered
Pesticide 10
2. Falsification of FIFRA
Records 10
3. Violation of Suspension or
Cancellation Orders. 10
4. Violation of Stop Sale
Orders 10
5. Unlawful Uses of Pesticides 11
6. Illegal Distribution of
Unregistered Pesticides 11
G. Investigative Priorities:
The Marine Protection, Research,
and Sanctuaries Act (MPRSA) 11
H. Investigative Priorties:
Willful Contempt of Environmental
Consent Decrees ...11
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PREFACE
A broad range of potential overlap exists among
the criminal, civil and administrative enforcement options
provided by most environmental statutes. Theoretically
at least, the Agency is free to pursue criminal sanctions
in every situation presenting evidence supporting the
requisite elements of proof.
As a matter of enforcement policy and resource
allocation, such an unrestrained use of criminal sanctions
is neither warranted nor practical. The commitment of
investigative and technical resources necessary for the
successful prosecution of a criminal case is high. More
importantly, a criminal referral for investigation or
prosecution can entail profound consequences for the subject
of the referral, and should reflect a considered, institutional
judgment that fundamental interests of society require the
application of Federal criminal sanctions to a particular
set of facts. Accordingly, criminal referrals will be
confined to situations thatwhen measured by the nature of
the conduct, the compliance history of the subject(s)
or the gravity of the environmental consequences
reflect the most serious cases of environmental misconduct.
This memorandum provides guidelines for the use of
criminal sanctions under all environmental statutes.
It is divided into two parts. Part I sets out several
general factors that Agency personnel should consider
in determining whether a criminal referral is warranted
in a specific situation. These factors will apply with
equal force to referral decisions under each of the Agency's
statutes, thereby ensuring cross-media consistency in
the use of this enforcement option. Part I has also been
drafted so as to reflect guidelines for the exercise
of Federal prosecutorial discretion found in the Justice
Department's Principles of Federal Prosecution.
Following this general overview, Part II establishes
investigative priorities in each of the Agency's program
areas. The purpose of this section is to focus the limited
criminal investigative resources of the Office of Legal and
Enforcement Counsel on the most serious cases of environmen-
tal misconduct. These media-specific priorities will be
fluid, and will be modified to reflect additional regulatory
programs in the Agency as they develop. In addition, the
creation of investigative priorities does not preclude the
possibility of a criminal referral for conduct not falling
within these priorities. Each case will be considered on an
individual basis. Furtherto emphasize the obviousthese
guidelines relate only to the use of criminal sanctions, and
do not reflect administrative or civil enforcement priorities.
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These guidelines, and internal office procedures
adopted in accordance with these guidelines, are not
intended to, do not, and may not be relied upon to
create a right or benefitsubstantive or procedural
enforceable at law by a party to litigation with the
United States. Any attempt to litigate any aspect of
these guidelines should be brought immediately to the
attention of the Criminal Enforcement Division, Office
of Legal and Enforcement Counsel, EPA Headquarters.
These guidelines are effective immediately, and
replace any existing guidance on criminal enforcement
priorties within the Agency.
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PART Ji THE DECISION TO PURSUE CRIMINAL SANCTIONS
This Agency's choice among its varying enforcement
options-civil, administrative and criminalis, and must
remain, a discretionary judgment that balances essentially
subjective considerations. No litmus paper test exists
that will reliably distinguish cases falling into each
category. This section discusses the varying factors,
or considerations, that should be addressed as EPA reaches
an institutional decision on the appropriate enforcement
option to employ in addressing a specific violation.
In essence, it is a discussion of those factors that
will normally distinguish a criminal case from all the
others.
A. The Scienter Requirement
An individual who engages in conduct prohibited
by statute or regulation can be prosecuted civilly or
administratively without regard to the mental state
that accompanied the conduct. Criminal sanctions, on the
other hand, will ordinarily be limited to cases in which
the prohibited conduct is accompanied by evidence of
"guilty knowledge" or intent on the part of the prospective
defendant(s). Referred to as the scienter requirement, this
element of proof exists under virtually every environmental
statute enforced by the Agency.I/ For example, falsification
of records under the Resource Conservation and Recovery Act
must be done "knowingly," (42 U.S.C. §6928(d)(3)); violation
of hazardous air pollutant standards under the Clean Air Act
must be done "knowingly," (42 U.S.C. §7413(c)(1)(c)); and
failure to establish or maintain records required under the
Toxic Substances Control Act must occur "knowingly or
willfully," 15 U.S.C. §2615(b).
I/ One exception to this general rule is the Refuse
Act, 33 U.S.C. §407, which has generally been interpreted
as a "strict liability" statute. See, e.g. United States
v. White Fuel Corporation, 498 F.2d 619 (1st Cir. 1974). In
addition, a prosecution for illegal discharges under the
Clean Water Act can be based on negligent or willful conduct,
33 U.S.C. §1319(c)(l). "Negligence" is not, strictly
speaking, a form of scienter.
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The requirement to prove a culpable mental state,
as well as a prohibited act, is certainly the clearest'
distinction between criminal and civil enforcement actions.
Special care will be taken both in investigations,
and in drafting criminal referral packages, to assemble
and highlight evidence available to meet the specific
statutory acienter requirement.
B. The Nature and Seriousness of the Offense
Resources currently available to EPA for criminal
case development are limited. In addition, this Agency
is only one of dozens that are making demands on the limited
prosecutorial staffs of the Justice Department. As a
matter of resource allocation, therefore, as well as
enforcement philosophy, EPA will investigate and refer
only the most serious forms of environmental misconduct.
Of primary importance to this assessment is the extent
of environmental contamination or human health hazard
that resulted from, or was threatened by, the prohibited
conduct. This determination depends in turn on consider-
ations such as the duration of the conduct; the toxicity
of the pollutants involved? the proximity of population
centers? the quality of the receiving land, air or water? the
amount of Federal, State or local cleanup expenditures? and
public sentiment supporting strong enforcement action
in response to a specific situation.
Also of significance in assessing the seriousness
of the illegal conduct is the impactreal or potentialon
EPA's regulatory functions. This factor is of particular
importance in cases of the falsification or concealment
of records, reports or information. For example, even if a
technical falsification case can be made, criminal sanctions
may not be appropriate if the distortion of information
could not reasonably have been expected to have a significant
impact on EPA's regulatory process or decision-making.
Where the materiality of the falsification is clear,
however, criminal sanctions should be pursued. For example,
falsification activity might cause EPA to register a pesticide
with demonstrated carcinogenic potential; to omit effluent
limitations for toxic pollutants in an NPDES permit; or to
postpone necessary regulatory action. In such situations,
the need for criminal sanctions should be considered.
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C. The Need for Deterrence
Deterrence of criminal conduct by a specific individual
(individual deterrence) or by the community at large
(general deterrence) has always been one of the primary
goals of the criminal law. Where the offense is deliberate
and results in serious environmental contamination or
human health hazard, the need to achieve deterrence through
the application of strong punitive sanctions will almost
always exist.
The goal of deterrence may, on occasion, justify a
criminal referral for an offense that appears relatively
minor* This would be true, for example, for offenses
thatwhile of limited importance by themselveswould
have a substantial cumulative impact if commonly committed.
This might also be true when addressing violations by an
individual with an extended history of recalcitrance and
noncompliance.
D. Compliance History of the Subject(s)
The compliance history of the subject(s) of a potential
criminal referral is relevant, and should be considered in
determining the appropriateness of criminal sanctions. As a
general rule throughout Federal criminal enforcement, first
offenders will be treated less severely than recidivists.
Stated alternatively, criminal sanctions become more
appropriate as the incidents of noncompliance increase. The
occurrence of past enforcement actions against a company, or
the failure of civil/administrative enforcement, is certainly
not a prerequisite to a criminal referral. However, a
history of environmental noncompliance will often indicate
the need for criminal sanctions to achieve effective individual
deterrence.
E. The Need for Simultaneous Civil or Administrative
Enforcement Action
Simultaneous civil and criminal enforcement proceedings
are legally permissible, United States v. Kordel, 397
U.S. 1, 11 (1970), and on occasion are clearly warranted.
However, separate staffs will be appointed with the
initiation of a grand jury investigation, if not before.
Further, the pursuit of simultaneous proceedings provides
fertile grounds, for legal challenges to one or both
proceedings th>t, even if unsuccessful, will consume
additional time and resources. Thus, parallel proceedings
should be avoided except where clearly justified.
In this regard, it should be noted that some of
the goals of a criminal prosecution, including a degree
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of deterrence and punishment, can be achieved through
a civil action that secures substantial civil penalties
in addition to injunctive relief. Moreover, recent exper-
ience indicates that while some cases may result in periods
of incarceration, criminal sentences will often be limited
to monetary fines and a probationary period. In light of
this reality, the use of the additional time and resources
necessary to pursue a criminal investigation-as well as a
civil enforcement actionis often not justified.
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PART Hi CRIMINAL ENFORCEMENT PRIORITIES
The previous section has discussed the general
considerations that will guide this Agency's decisions
on the investigation and referral of criminal cases.
Part II details the substantive investigative priorities
that will be pursued in the Office of Legal and Enforcement
Counsel's developing criminal enforcement program. The
priorities are listed by statute. The order of listing is
random, and is not. intended to'achieve further ranking
either within each statute or on a cross-media basis.
Unless otherwise stated below, all listed categories of
conduct are considered equally significant and worthy of
investigation within the constraints of our limited criminal
investigative resources.
The criminal investigative staff of the Office of
Legal and Enforcement Counsel, acting in partnership
with the legal and technical staffs of the Agency, will
focus criminal enforcement efforts in the future primarily
on cases falling within the categories listed below. The
issuance of these priorities is not, however, intended to
preclude the possibility of a criminal referral in other
cases.2/ As was indicated previously, each case will be
considered on its own merits.
A. Investigative Priorities; Resource Conservation
and Recovery Act (RCRA):
1. Knowing Endangerment
Section 3008(e) of RCRA, 42 U.S.C. §6928(e), establishes
the crime of "knowing endangerment." The provision carries
maximum penalties of up to five years of imprisonment
and a $1,000,000.00 fine, and reflects a Congressional
mandate to pursue strong criminal sanctions for knowing,
life-threatening conduct that violates RCRA statutory
prohibitions or interim status standards and regulations.
RCRA and its legislative history indicate that the "knowing
endangerment" provision is intended to apply only in
the most serious instances of environmental misconduct.
Where the elements of proof can be met, however, EPA
will give a high priority to the investigation, referral and
prosecution of "knowing endangerment" cases.
2_/ For example, because the enforcement provisions of the Safe
Drinking Water^Act, 42 U.S.C. §§300f et. seq., contain compara-
tively mild monetary penaltiesand no potential terms of
incarceration--the statute is not listed as a criminal enforcement
priority. This does not, however, preclude the possibility of
a criminal referral under the Safe Drinking Water Act to address
aggrevated cases of non-compliance.
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2. Illegal Transportation and Disposal of Hazardous
Waste
Section 3008(d)(l-2) of RCRA, 42 U.S.C. §6928(d)(1-2),
carries felony penalties of two years of imprisonment and
a $50,000.00 fine for the knowing transportation of
hazardous wastes to an unpermitted facility (Section
3008(d)(l)) and the knowing disposal of hazardous wastes
without obtaining a permit (Section 3008(d)(2)). Both
provisions are potentially applicable to midnight dumping
in its various forms, i.e., in abandoned sites, company
yards, open fields or waterways, or unpermitted waste
disposal facilities. A high investigative priority
will be placed on illegal transportation or disposal
activities that result in, or threaten, serious environ-
mental contamination or human health hazard.
3; Falsification of RCRA Records
Section 3008(d)(3) of RCRA, 42 U.S.C. §6928(d)(3),
carries misdemeanor penalties of one year of imprisonment
and a $25,000.00 fine for the knowing falsification
of material information in records "maintained or used
for purposes of compliance" with RCRA. Emphasis will be
placed on falsification activity that hasor could reasonably
be expected to havea significant impact on EPA's regulatory
process or decision-making.
4. Destruction, Concealment or Alteration of RCRA
Records
Section 3008(d)(4) of RCRA, 42 U.S.C. §6928(d)(4),
carries misdemeanor penalties of one year of imprisonment
and a $25,000.00 fine for incidents of knowing destruction,
concealment or alteration of records maintained under
RCRA regulations. As in falsification cases, emphasis
will be placed on conduct that hasor could reasonably
be expected to havea significant impact on EPA's
regulatory process or decision-making.
B. Investigative Priorities: Comprehensive Environmental
Response, Compensation and Liability Act (Superfund);
1. Failure to Notify of the Release of a Hazardous
Substance
Section 10$(b)(3) of Superfund, 42 U.S.C. §9603(b)(3),
carries misdemeanor penalties of one year of imprisonment
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and a $10,000.00 fine for failure to notify the appropriate
Federal agency of a release of a hazardous substance
in amounts equal to or greater than those determined
pursuant to Section 102 of Superfund. The Agency will
place a high investigative priority on cases where the
"release" results in, or threatens, significant environmental
contamination or human health hazard.
2* Destruction or Falsification of Superfund Records
Section 103(d)(2) of Superfund, 42 U.S.C. §9603(d)(2),
carries misdemeanor penalties of one year of imprisonment
and a $20,000.00 fine for the knowing destruction or falsi-
fication of specified Superfund records. Investigative
priority should be placed on conduct that hasor could
reasonably be expected to havea significant impact
on EPA1s regulatory process or decision-making.
C. Investigative Priorities; Clean Water Act (CWA);
1. Violations of the NPDES Permit Program
Section 309(c)(l) of the CWA, 33 U.S.C. §1319(c)(l),
carries misdemeanor penalties of one year of imprisonment
and a $25,000.00 fine for the willful violation of conditions
or limitations in NPDES permits issued by the Administrator
or a State. The NPDES permit program is a mature regulatory
scheme and the primary mechanism for monitoring and controlling
water pollution under the CWA. The Agency will place a high
investigative priority on willful NPDES permit violations
that result in, or threaten, significant environmental
contamination or human health hazard.
.2. Falsification of CWA Records and Monitor Tampering
Section 309(e)(2) of the CWA, 33 U.S.C. §1319(c)(2),
establishes misdemeanor penalties of six months of imprison-
ment and a $10,000.00 fine for knowing falsification of
records and for tampering with monitoring devices "required
to be maintained" under the CWA. Investigative priority
should be placed on cases in which the falsification
or tampering has--or could reasonably be expected to
havea significant impact on EPA's regulatory process
or decision-making.
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3. Unpermitted Discharges
Section 301 and 309(c)(l) of the CWA, 33 U.S.C. §§1311,
1319(c)(l)), establish misdemeanor penalties of one year of
imprisonment and a $25,000.00 fine for willful discharges
into navigable waters without an NPDES or "dredge and fill"
permit.3j A high investigative priority will be placed
on willful, unpermitted discharges that cause, or threaten,
significant environmental contamination or human health
hazard.
D. Investigative Priorities; The Clean Air Act (CAA)i
1. Violations of State Implementation Plans
Section 113(c)(l)(A) of the CAA, 42 U.S.C. §7413
(c)(l')(A), carries misdemeanor penalties of one year of
imprisonment and a $25,000.00 fine for knowing violations
of State implementation plans. SIPs are the cornerstone
of a well-established and mature regulatory program and
constitute the CAA's primary mechanism for implementing
and enforcing air quality standards for criteria pollutants.
A high investigative priority will be placed on cases
of knowing violation of SIP limitations that result
in, or threaten, significant environmental contamination
or human health hazard.
2. Violations of Hazardous Air Pollutant Standards
Section 113(c)(l)(C) of the CAA, 42 U.S.C. §7413
(c)(l)(C), establishes misdemeanor penalties of one year
of imprisonment and a $25,000.00 fine for knowing violations
of standards for hazardous air pollutants. A high invest-
igative priority will be placed on knowing violations
of these standards that result in, or threaten, signi-
ficant environmental contamination or human health hazard.
3/ Also applicable are the provisions of the Refuse Act,
3"3 U.S.C. S407, which establish misdemeanor penalties of
one year of imprisonment (including a 30-day minimum sentence)
and a $2,500.00 fine.
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3. Falsification of CAA Records and Monitor Tampering
Section 113(c)(2) of the CAA, 42 U.S.C. §7413 (c) (2),-
establishes misdemeanor penalties of six months of imprison-
ment and a $10,000.00 fine for knowing falsification
of records and for tampering with monitoring devices
"required to be maintained" under the CAA. A high invest!-.
gative priority will be placed on cases in which the
falsification or tampering hasor could reasonably
be expected to havea significant impact on EPA's
regulatory process or decision-making.
E. Investigative Priorities; The Toxic Substances Control
Act (TSCA)*
1. Violations of Section 4 Testing Rules or the
Section 5(b) Premanufacture Notification Program
Sections 15(1) and 16(b) of TSCA, 15 U.S.C. §§2614(1)
and 2615(b), establish misdemeanor penalties of one year of
imprisonment and a $25,000.00 fine for knowing or willful
violations of any rule promulgated under Section 4 or any
requirement prescribed by Section 5 of TSCA. A high
investigative priority will be placed on violations
that have a significant impact on the Agency's ability to
act under Section 4(f)(l), 15 U.S.C. §2603(f)(l), and on
situations of falsified test data submitted pursuant to
Section 5(b), 15 U.S.C. §2604(b), and the premanufacture
notification program.
2. Failure to Report Substantial Risk Information
Sections 8(e), 15(3)(B) and I6(b) of TSCA, 15 U.S.C. §§2607(e),
2614(3)(B) and 2615(b), establish misdemeanor penalties of one
year of imprisonment and $25,000.00 fine for knowing or willful
failure to submit information to EPA which reasonably supports
the conclusion that a chemical substance or mixture
manufactured, processed, or distributed in commerce presents
a substantial risk of injury to health or the environment.
A high investigative priority will be placed on all violations
of this reporting requirement.
3. Violation of PCS or Dioxin Regulations
Sections 15(1)(C) and 16(b) of TSCA, 15 U.S.C. §§2614(1)(C)
and 2615(b), establish misdemeanor penalties of one year of
imprisonment apd a $25,000.00 fine for knowing or willful
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violations of rules issued under Section 6 of TSCA.
The Agency has issued regulations governing polychlori-
nated biphenyls and the disposal of dioxin-contaminated
pesticide wastes. A high investigative priority will
be placed on knowing or willful violations of these
regulations that result in, or threaten, significant
environmental contamination or human health hazard.
F. Criminal Enforcement Priorities: The Federal
Tnsecticide, Fungicide and Rodentieide Act (FIFRA);
1. Failure to Report Information on the Unreasonable
Adverse Effects of a Registered Pesticide
Section 14(b) of FIFRA, 7 U.S.C. Il361(b), establishes
misdemeanor penalties for the knowing violation of any
provision of the Act. Section 12(a)(2)(N) provides that
it is unlawful to fail to submit information required by
Section 6(a)(2). This section requires a registrant to
report-to EPA any information regarding unreasonable
adverse effects on the environment which the registrant
has after the time of registration. A high investigative
priority will be placed on knowing violations of this
reporting requirement.
2. Falsification of FIFRA Records
Sections 12(a)(2)(M) and 14(b) of FIFRA, 7 U.S.C.
§§136j(a)(2)(M) and 1361(b), establish misdemeanor penalties
for the knowing falsification of specified records maintained
or filed under FIFRA, including registration data. A high
investigative priority will be placed on falsification
activity that hasor could reasonably be expected to
havea significant impact on EPA's regulatory process
or decision-making.
3. Violation of Suspension or Cancellation Orders
Sections 12(a)(2)(J), 12(a)(2)(K) and 14(b) of FIFRA,
7 U.S.C. §§136j(a)(2)(J), 136j(a)(2)(K) and 1361(b), establish
misdemeanor penalties for knowing violations of the terms
of cancellation and suspension orders issued under Section
6 of FIFRA. A high investigative priority will be placed on knowing
violations that result in, or threaten, significant environmental
contamination or human health hazard.
4. Violation of Stop Sale Orders
Sections lJr(a)(2)(I) and 14(b) of FIFRA, 7 U.S.C. §§136j
(a)(2)(I) and 1361(b), establish misdemeanor penalties for
knowing violations of the terms of stop sale orders under
Section 13(a). A high investigative priority will be placed
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on knowing violations that result in, or threaten,
significant environmental contamination or human
health hazard.
5. Unlawful Uses of Pesticides
Sections 12(a)(2)(G) and 14(b) of FIFRA, 7 U.S.C.
§§136j(a)(2)(G) and 1361(b), establish misdemeanor penalties
for the knowing use of a pesticide in a manner inconsistent
with its labelling. If referred by a State with primary
use enforcement responsibilities, a high investigative
priority will be assigned to misuse cases that result
in, or threaten, significant environmental contamination
or human health hazard.
6. Illegal Distribution of Unregistered Pesticides
Sections 12(a)(l)(A) and 14(b) of FIFRA, 7 U.S.C.
§§136j(a)(1)(A) and 1361(b), establish misdemeanor penalties
for the knowing distribution, receipt etc. of an unregistered
pesticide. The pesticide registration process outlined
in Section 3 of FIFRA, 7 U.S.C. Section 136(a), is the
cornerstone of EPA's program to monitor and regulate
the safety of pesticides. A high investigative priority
will be placed on illegal transactions involving unregistered
pesticides that result in, or threaten, significant environ-
mental contamination or human health hazard.
G. Investigative Priorities; The Marine Protection^
Research, and Sanctuaries Act (MPRSAj
1. Unauthorized Ocean-Dumping
Section 105(b) of the MPRSA, 33 U.S.C. §1415(b),
establishes misdemeanor penalties of one year of imprisonment
and a $50,000.00 fine for the knowing violation of regula-
tions or permits issued under the ocean-dumping program.
The Agency will place a high investigative priority on
violations that result in, or threaten, significant environ-
mental contamination or human health hazard.
H. Criminal Enforcement Priorities; Willful Contempt
of Environmental Consent Decrees
18 U.S.C. §401(3) establishes criminal sanctions
for contempt of court resulting from "disobedience or
resistence to (the court's) lawful writ, process, order.
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rule, decree, or command." The punishment, which may
be by fine or imprisonment, is left to the discretion of
the court. Historically, most of the EPA's civil litiga-
tion referrals have been settled in judicially-enforceable
consent decrees containing requirements for plant modifi-
cation, upgrading or installation of pollution control
equipment, and other forms of injunctive relief. Insuring
compliance with the terms of these consent decrees will
be a significant element of this Agency's enforcement
program. A high investigative priority will, therefore,
be placed on incidents of willful or deliberate noncompliance
with the terms of environmental consent decrees that result
in, or threaten, significant environmental contamination
of human health hazard.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
-"- WASHINGTON, D.C.204M
JAN
OTF1CS Of ENFORCEMENT
AND COMPLIANCE
MONITORING
MEMORANDUM
SUBJECT: Functions and General Operating Procedures for
the Criminal Enforcement Program
FROM: Courtney M. Price V^^jl f\ ,
Assistant Administrator*^ O .
To: Assistant Administrators
General Counsel
Inspector General
Regional Administrators
Regional Counsels
I am pleased to transmit the final operating procedures
for the criminal enforcement program. These procedures were
developed after extensive coodination with and comments from
the Regional offices and program staffs. Your assistance has
been valuable in developing procedures that will accomodate
the interests and needs of the various offices of the Agency
and enhance our ability to conduct a rigorous and effective
criminal enforcement effort. These procedures replace the
interim operating procedures which were issued in January,
1984.
We have attempted in this guidance to recognize the
significant role that the Regional Counsels, Regional Program
Offices and the National Program Managers play in the criminal
enforcement program. Active participation by all of us is
essential to its success. I look forward to working closely
with you.
Specific questions concerning this guidance may be
directed to Randall M. Lutz, Assistant Enforcement Counsel
for Criminal Enforcement (FTS 382-4543; E-Mail Box EPA2201).
Attachment
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FUNCTIONS
and
GENERAL OPERATING PROCEDURES
for the
CRIMINAL ENFORCEMENT PROGRAM
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I. PURPOSE AND PHILOSOPHY
These General Operating Procedures establish the process by
which suspected criminal activity is investigated and prosecuted
by the various agencies and officials involved. In addition,
the functions, roles and relationships of these entities are
set forth under a variety of circumstances. Because of the
need in each case to involve many geographically dispersed
professionals of various disciplines, this guidance emphasizes
a "team" approach to the investigation and prosecution of
criminal cases. The procedures set forth below are not to be
rigidly interpreted. It is recognized that certain cases may
require flexibility to proceed successfully.
II. ROLES AND RELATIONSHIPS * '
Most aspects of the Agency's enforcement program have
been delegated in significant measure to the Regional Offices.
The critical stage in development of the criminal enforcement
program, the need for specialized expertise and consistency,
however, dictate a centralized management approach for the
program. Management of criminal legal and policy functions will
be focused at Headquarters, and the management of criminal
investigative functions will be focused at the National Enforce-
ment Investigations Center (NEIC). It is understood that the
actual enforcement efforts in each case will require a team
effort which relies upon the contribution of Headquarters
and regional legal and technical staff and the Department of
Justice (DOJ). -
The Office of Enforcement and Compliance Monitoring (OECM);
The Assistant Administrate!:^foJTEnforcemehYand Comprfance
Monitoring
The Administrator has delegated the responsibility to
develop and implement this program to the Assistant Administrator
for Enforcement and Compliance Monitoring (the Assistant Admini-
strator). The Assistant Administrator maintains policy and
operational control for this program through the Associate
Enforcement Counsel for Criminal Enforcement and Special
Litigation (the Associate Enforcement Counsel) and the Director,
NEIC.
Criminal enforcement policies and priorities are established
through the Assistant Administrator. The Assistant Administrator
oversees the criminal investigating program, and reviews and
approves criminal referrals to DOJ. The Assistant Administrator
ensures consistent and complementary use of the civil and
criminal enforcement authorities available to the Agency
(including, where appropriate, parallel proceedings), develops
and defends the budget, and allocates investigative resources
for the program.
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The Associate Enforcement Counsel for Criminal Enforcement and
Special Litigation ITZZZ ~~~~~ -
The Associate Enforcement Counsel, through the Assistant
Enforcement Counsel for Criminal Enforcement (the Assistant
Enforcement Counsel), is responsible for providing legal
guidance to the Agency on all aspects of the criminal enforcement
program, informing the Assistant Administrator of ongoing
case activity and articulating investigation and litigation
priorities by developing an enforcement strategy, together with
the HEIC, for the program. To implement these responsibilities,
the Associate Enforcement Counsel through the Assistant Enforcement
Counsel, supervises the Criminal Enforcement Division.(CED)
which coordinates the team investigation and prosecution of
criminal cases with DOJ's Land and Natural Resources Division
end local federal and state agencies; provides legal advice and
support to the NElC's Office of Criminal Investigations (OCI)
and to the Regional Counsels; reviews all criminal referrals
to DOJ; participates in the prosecution of selected cases of
national importance or that exceed the resources of local or
regional offices; makes recommendations on the use of parallel
proceedings; develops training programs for agency legal and
regional program staff; issues legal updates of significant
decisions by the United States Supreme Court and other courts;
and reviews the legal soundness and consistency of guidances
and procedures developed throughout the Agency.
The National Enforcement Investigations Center (NEIC)
The Director, NEIC, through the Assistant Director for
Criminal Investigations (the Assistant Director) , monitors
end supervises all investigative activities arising under the
criminal enforcement program through the Office of Criminal
Investigations' Area Offices (and Resident Offices), the Washington
Staff Office, and the NEIC Investigative Unit. The NEIC
formulates procedural and technical guidance for the conduct
of Agency investigations.
The Director, NEIC, assumes overall responsibility for
recruiting the Agency's investigative staff; informing the
Assistant Administrator of investigative activity; and recom-
mending how investigative resources should be allocated among
the Regions consistent with national enforcement strategies.
The NEIC develops and implements training programs on operational
aspects of criminal case development for Agency personnel. It
assumes responsibility for technical support in Agency criminal
investigations that have inter-regional ramifications or
that exceed the resources of the technical staffs of individual
Area or Regional Offices.
The NEIC oversees the criminal investigative activity in
each of the Area Offices. Further, while day-to-day investigative
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decioions are usually made in the Area Office under the super-
viaion of a Special-Agent-in-Charge (SAIC), in designated ' .1
cases of national significance or of particular sensitivity,
the Assistant Director has the authority to direct the investi-
gative activity of any Area Office. The Assistant Director
also reviews and concurs in performance evaluations of the
criminal investigators (Special Agents) and conducts the _
performance evaluations of the SAICs. Final approval of .SAIC -
performance evaluations is given by the Director, NEIC,
Area Offices: A key component of the.NEIC's centralized
management approach to the criminal enforcement program has
been the development of Area Offices. Special Agents constitute
Headquarters rather than regional resources and are part of the
staff of NEIC. They are housed in an Area Office and are supervised
by a SAIC who reports to the Assistant Director. The management
of any given investigation is the primary responsibility of
the Special Agent, acting under the immediate supervision of
the SAIC. . . .:..,,....
The SAIC in each Area Office ensures that events (witness
interviews, investigative developments, opening and closing
of investigations) in each of the cases and investigations are
properly documented by the investigative staff utilizing standard
agency forms. In certain Regions, the numbr of Special Agents
assigned and the investigative caseload has not yet risen to
a level justifying the presence of an Area Office. A Resident
Office will be located in each such Region, directed by a
Resident-Agent-in-Charge who reports in turn to the SAIC who
is responsible for the Region in which the Area Resident Office
is located.
NEIC Investigative Unit: A Special NEIC Investigative
Unit, also staffed by experienced Special Agents, is located
at the NEIC headquarters in Denver. Unlike Area Offices,
this unit has national jurisdiction, focusing on cases that
span the jurisdiction of two or more Area Offices, that set
national precedent or where investigative demands are beyond
the capacity of a particular Area Office. .Investigators
assigned to this unit also participate, where appropriate, in
investigations in which the NEIC is providing technical support.
The NEIC Investigative Unit like the Area Offices --is
managed on a day-to-day baais by a SAIC, who reports in turn to
tha Assistant Director.
Washington Staff Office; The Washington Staff Office
serves as the OCI's focal point, at EPA Headquarters and provides
a liaison with all Headquarters program offices and with law
enforcement agencies located in the Washington area. This
office selectively participates in investigations of national
importance.
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_ -__=_._ _. --_, .A.
The Office of Regional Counsel (ORC)
Special Agents will coordinate closely vith Regional Attoneys
throughout the investigative process and will utilize the
expertise of selected Regional Attorneys for advice on specific
cases and EPA's statutes and regulations. To facilitate this
consultation, each ORC will designate a Regional Attorney to
serve as a contact with the criainal enforcenent prograc.
Furthermore, this Regional Attorney will be assigned to & case
early in the case development process to assist as needed in
the investigation, indictment, and prosecution. Both the
Regional Attorney and the Special Agent coordinate and consult
with the CED in resolving issues concerning the application
of criminal law to the criminal enforcement of envircnnental
statutes.
The Regional Attorney may become a member of the prosecu-
tion team, Joining the prosecutor, the attorney from the CED,
technical and program personnel and the Special Agent. The
Regional Attorney may assist in evidence review or documenta-
tion and statutory and regulatory interpretation and other
functions as assigned by the Regional Counsel necessary for
the successful prosecution of the case. The CED supports such
activities by providing specialized expertise in the application
of criminal law to environmental enforcement.
The Regional Administrator
The Regional Administrator, or his designee, will be kept
apprised of criminal enforcement matters occurring in the
Region. To coordinate criminal investigations with other
Agency activities, notification to the Regional Administrator
should occur, for example, when a decision io made to pursue
parallel civil/criminal enforcement proceedings, or when inves-
tigations involve companies or individuals who are also involved
with the Agency on other, unrelated matters. It is the respon-
sibility of the Regional Counsels (as advised by the Regional
Attorney assigned to assist in a criminal investigation; to
timely notify the Regional Administrators of appropriate cases
and developments. The Director, NEIC, and .appropriate Regional
Program Division Directors will notify the Regional Administrators
of appropriate investigative situations. Once apprised of a
criminal enforcement activity, it is the Regional Administra-
tor's function to notify State regulatory agencies of important
developments in criminal investigations as appropriate. *
Th*i Program Assistant Administrators
As the national program managers, the Program Assistant
Administrators work with the CED in the establishment of
Agency-wide and media-specific compliance and enforcement
priorities. These priorities will provide a framework for
dccicions on the allocation of EPA's criminal investigative
end technical resources.
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As in other enforcement areas, Program Assistant Adminis-
trators provide technical support and other resources to Head-
quarters and to the regions to support criminal investigations,
case development and prosecution. NEIC and the CED will provide
the Program Assistant Administrators with projections of
anticipated resource needs to ensure adequate technical end
legal support for such purposes.
.Each.Program Assistant Administrator will appoint one
individual to coordinate with the CED and the NEIC on criminal
enforcement matters. Subject to the normal constraints on
dissemination of information concerning criminal cases,
consultation will occur during the referral review process
to ensure that a specific case does not raise policy issues
that should be brought to the attention of the Assistant
Administrator prior to the referral decision.
The Regional Program Division Directors
The Regional Program Division Directors play an important
role in the case development process by providing upon request
technical support for an investigation through consultation or
actual field work, as needed and as resources are available.
The expertise of the technical staff in the various media is
an excellent resource for case development. Also, in those
cases that are prosecuted and go to trial it will often be
necessary for the regional technical staff to testify as deter-
mined by the prosecutor.
The Regional Program Division Directors will designate a
contact staff member for support of criminal investigations
involving the functions of that division.
The Office of General Counsel (OGC)
In criminal enforcement matters, as in other areas of Agency
activity, the General Counsel is responsible for interpreting
laws and regulations to ensure their consistent application.
OGC attorneys also assist in resolving legal issues involving
the interpretation of environmental statutes that arise
during investigations, during the review of criminal referrals,
or during the prosecution of criminal cases. OGC also partici-
pates in the preparation of briefs and other court documents
in criminal cases, and, in consultation with CED, makes
determinations whether to appeal adverse court decisions.
The Department of Justice (DOJ)
DOJ and local United States Attorneys provide legal advice
upon request during field investigations and obtain criminal
search warrants and other court processes in support of EPA
criminal cases. They direct the conduct of grand jury investi-
gations and proceedings, and all prosecutions and appeals of
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federal criminal environmental cases. In^conault&tioc with
EPA attorneys and investigators, DOJ prosecutors negotiate and
accept plea agreements and make sentencing recommendations..
In addition, DOJ monitors the exercise of law enforcement .
powers by EPA Special Agents. >
III. INITIATION AND CONDUCT OF AN INVESTIGATION
This Section describes the interaction of the participating
offices in the initiation and pursuit of a routine investigation.
The roles described herein are for guidance and cau be changed
to accommodate the special circumstances of the investigation
and prosecution of a specific case.
Initiation of an Investigation: Preliminary Inquiry
An initial "lead" or allegation of potential criminal
activity may come to the Agency from any of several sources,
including State agencies, routine compliance inspections,
citizens or disgruntled company employees, among others.
Regardless of its source, the SAIC and/or the Resident-Agent-in
Charge (RAIC) should be immediately notified. The SAIC or
RAIC evaluates the lead and, if necessary, assigns a Special
Agent for follow-up, assigns a case number and opens an investi-
gative file.
If the reliability of the lead is unclear, the Special.
Agent conducts a preliminary inquiry to determine the credibility
of the allegation and makes an initial assessment of the need
for a more thorough investigation. - This initial inquiry is
brief, and involves no extensive commitment of resources or
tine. The purpose is to reach an initial determination on the
need for a complete investigation. The CED is consulted if
this determination concerns legal issues of criminal liability.
Conduct of an Investigation :. jon^-
'.;- .^
( Because the complexity of many environmental criminal
investigations requires the skills of various disciplines, a
teem approach to the prosecution is necessary. If, after the
preliminary inquiry, the SAIC feels that the lead warrants
thorough investigation, the Special Agent will immediately
contact the appropriate Regional Counsel to determine whether
any civil enforcement action is pending or contemplated against
the investigative target. The Special Agent contacts the
designated regional program contact person for assistance and
transoittal of information when necessary. 'The Special Agent
contacts the appropriate Regional Program Division Directors
tc determine whether any administrative enforcement action is
pending or contemplated against the target. For any particular
case where technical support during the investigation is needed,
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the appropriate Regional Program Division Director will be
asked to designate specific individuals to work with the Special
Agent during the investigation. These activities are carried
out in consultation with the NEIC. ,
f
Overall management of the investigation is the sole responsi-
bility of the Special Agent, acting under the supervision of
the RAIC or SAZC. The Special Agent is responsible for determining
the basic investigative approach, and takes the lead in conducting
interviews, assembling and reviewing records, planning and
executing surveillances, coordinating with the United States
Attorney's offices and other federal, state and local law
enforcement agencies, obtaining and executing search warrants,
communicating with informants, contacting other witnesses and
performing other investigative functions.
In pursuing an investigation, the Special Agent is responsible
for completing all required reports and coordination and
notification requirements (interview summaries, reports of
investigation, etc.). As a general practice, only one member
of the investigative team will record or document any stage or
development in the investigation.
Issues and problems concerning the use of discovery devices,
the confidentiality of business information, delegations of
authority within the Agency, interpretation and application of
State statutes and enforcement proceedings, internal EPA policy
and guidance, the impact of decisions by the United States
Supreme Court and other courts, and elements of proof under
EPA's environmental criminal provisions are legal issues that
will have to be resolved by the CED, ORC and OGC contact. It is
the responsibility of'the Special Agent to consult with and
seek the guidance of the legal contact of the ORC and the
Assistant Enforcement Counsel on these and similar issues
throughout the pre-referral investigative process.
Parallel Investigations and Proceedings 1/
* -.
While simultaneous administrative/civil and criminal enforce-
ment actions are legally permissible, they are resource-intensive
1/ Agency guidelines on parallel proceedings were issued on
January 23, 1984. (See memorandum "Policy and Procedures on
Parallel Proceedings at the Environmental Protection Agency",
Assistant Administrator, Office of Enforcement and Compliance
Monitoring to Assistant Administrators, Regional Administrators,
Regional Counsels, and Director, NEIC, January 23, 1984).
Agency officials and staff should consult these guidelines
prior to conducting parallel investigations or proceedings.
Further guidance on specific issues concerning parallel
proceedings is expected to be published.
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and fraught with potential legal pitfalls. Parallel proceedings
will nevertheless be pursued where the public interest requires
a dual approach, e.g., where both injunctive relief or remedial
action and criminal sanctions are warranted. Where injunctive
relief is not needed, and where the conduct warrants criminal
sanctions, an administrative or civil proceeding seeking punitive
penalties would generally be held in abeyance by the Region
pending the resolution of the criminal investigation. The
criminal referral and the parallel administrative/civil action
of the Regional Office will each be considered to be separate
referrals for Regional management reporting purposes. Where
parallel proceedings are Justified, the criminal investigation
will be pursued in accordance with Agency guidance on the
conduct of a parallel proceeding. The Assistant Administrator
will approve the conduct of parallel proceedings upon the
advice of the Associate Enforcement Counsel and will notify
the Regional Administrator of the approval.
Coordination with State/Local Enforcement
It is recognized that many investigations and cases can be
prosecuted at either the federal or state/local level. It is
the goal under this policy over time to refer more cases more
frequently to the state/local level as the abilities and resources
at those levels increase and the case load at the federal
level becomes more difficult to manage. Although this concurrent
Jurisdiction raises some issues (e.g., how to avoid duplication
of effort, how to obtain the best result, should separate
cases ever be brought, etc.), they do not warrant the issuance
o.f a foroal general operating policy in this area. If the
need becomes apparent, a policy will be drafted for review and
cocment.
Whatever determinations are made about the level at which
environmental criminal cases should bo prosecuted, it is
vitally important that at the investigative level close
coordination is maintained between and among federal and state/
local law enforcement and regulatory agencies. SAICs are
responsible for ensuring regular communication, exchanges of
information under appropriate assurances of security, and
coordinated actions between OCI and such agencies in investigative
activities generally and with respect to specific investigations.
IV. REFERRAL PROCEDURES
Routine Referrals
Criminal cases shall be developed as thoroughly as possible
prior to referral to DOJ. During this investigative and case
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preparation process, informal coordination among the Special
Agent, the CEO, the Regional Attorney, DOJ and local United
States Attorneys is encouraged.
A referral recommendation will be developed when the field
investigation has been completed. At this point, the results
of the investigation are assembled in a referral package by the
Special Agent. The Special Agent assigned to the investi- - - - -
gation is responsible for coordinating the preparation of the
overall referral package and consulting with other members of
the investigative team. A separate legal analysis is drafted
by the Regional Attorney.
Once the referral package is prepared, it is reviewed by
the SAIC and the Regional Counsel, who act as joint signatories.
Technical portions of the package are also reviewed by the
Region or Headquarters program office or the NEIC, depending
upon the source of technical support. During this technical
review, the technical resources to support the ensuing
prosecution should also be identified and their availability
specifically confirmed by the appropriate technical office.
Following completion of the referral package and concur-
rence in the referral recommendation by the SAIC and the
Regional Counsel, five copies of the referral package (with
all exhibits) should be directed to the Associate Enforcement
Counsel, and one copy to the Director, NEIC. No copies of
this referral package will be sent to the local United States
Attorney or DOJ until Headquarters has reviewed the referral
package and the Assistant Administrator has approved the
referral. However, the' Special Agent is encouraged to consult
and review documents with the local AUSA or DOJ prosecutor who
will be handling the case at the earliest possible time, as
needed for legal advice and for case development strategy at
any point in the invesigative process, even if the formal
referral has not yet been made.
The Headquarters review will focus on the adequacy of case
development, adherence to the criminal enforcement priorities
of the Agency, legal issues of first impression, consistency
with related program office policy, and overall prosecutorial
merit. In cases involving particularly complex issues of law,
the CED will also consult with OGC and DOJ attorneys. If,
following this review process, the referral recommendation is
accepted by the Assisistant Administrator, copies of the referral
package will be directed simultaneously to the local United
States Attorney and to DOJ. Appropriate cover letters will be
drafted by the CED for the signature of the Assistant Administrator.
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Emergency Assistance from United States Attorneys
In unusual circumstances, it may be necessary to secure
the immediate assistance of the local United States Attorney
for legal process. For example, immediate resort to the grand
jury's compulsory process may be required in investigations of
ongoing illegal activity, or when there are grounds to anticipate
the flight of a witness or defendant. Such situations will
arise..infrequently. When they arise, the SAIC, with the
knowledge of the Regional Counsel, will contact the NEIC,
which will in turn consult with the CED. Following approval
by the Assistant Administrator, telephonic authorization to
'contact the AUSA for appropriate assistance will be granted in
appropriate cases. Copies of all materials normally included
in a referral package (which have been transmitted to the
local AUSA in connection with the emergency situation) will
then be directed immediately and simultaneously to NEIC, to
the CED and to the Environmental Crimes Unit (ECU) of DOJ's
Land and Natural Resources Division. These copies will be
sent within 48 hours. Appropriate follow-up letters to the
AUSA and DOJ will be drafted by the CED confirming the emergency
situation.
V. POST-REFERRAL PROCEDURES
Following referral to DOJ, responsibility for managing
the prosecution rests with the prosecutor assigned to the
case. Usually, the prosecutor is a member of the local United
States Attorney's office. In cases of national significance
or beyond the resources- of the local United States Attorney,
the case may be managed by the ECU. The ECU monitors the
progress of federal environmental criminal referrals throughout
the country. Within EPA, oversight of the criminal prosecution
docket is the responsibility of the CED.
The Special Agent responsible for the investigation," working
in close cooperation with the Regional Attorney assigned to the
case, acts as primary liaison with DOJ or the local AUSA. '*
This Special Agent performs and coordinates additional investi-
gation as required and usually will be designated a special .
agent of the grand jury if a grand Jury presentation or investi-
gation is initiated.
Many of EPA's criminal cases are developed further
through the grand jury. Stringent, closely-monitored rules
govern the conduct of grand jury investigations. To ensure
the secrecy of the grand jury process, no one may have access
to information received by the grand jury without court per-
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mission or rule authorization unless otherwise permitted by lav.
Agency officials are responsible for familiarizing themselves
completely with these rules prior to participating in a
grand jury investigation. 2/
" ' . I . i ( J i r
The CED and ORC attorneys are responsible for fulfilling
requests for legal assistance during the litigation of the *-
case. CEO attorneys will coordinate with Regional Attorneys
and OGC in responding to these requests. Regional program
offices and NEIC technical staff will be available to provide
technical support as needed. "-.>-.*
VI. PLEA BARGAINING
' »-.-' ;-,
Negotiation of settlements in criminal cases (i.e., plea
bargaining) is the sole responsibility of OOJ and the local
AUSA although consultation with the investigative team and
the Regional Administrator is strongly encouraged. Following
referral of A criminal case, Agency officials should never
enter into independent negotiations or discussions with
the subject(a) of that referral without prior coordination.
with and approval from the DOJ attorney or the AUSA overseeing
the case. It is, of course, entirely appropriate for Agency
officials working on the criminal prosecution including
investigators, attorneys and technical personnel -- to provide
input, suggestions and advice during the negotiation process.
DOJ or the AUSA conducting settlement negotiations should
consult the CED before entering into any final settlement.
VII. CLOSING INVESTIGATIONS
A case may be closed prior to or after referral to DOJ for
one or more of the following reasons: initial allegation unfounded,
referral for administrative/civil enforcement action, referral
to another agency or law enforcecent office, lack of prosecutorial
"" - - -.i
2/ Agency guidelines on grand jury investigations were* cir-
culated on April 30, 1982. (See memorandum "Agency Guidelines
for Participation in Grand Jury Investigations , Associate
Administrator for Legal and Enforcement Counsel and General
Counsel to Assistant Administrators, Regional Administrators,
Regional Counsels and Director, NEIC, April 30, 1982.) Agency
officials should consult these guidelines prior to participa-
tion with DOJ in a grand jury investigation.
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...... -12- -
eric, declination by DOJ or resolution of the case after the
filing of charges. The decision to close an investigation
(unless it occurs because of court action or a jury decision)
is one which usually is made after consultation among EPA
attorneys, the SAIC and the prosecutors (if it occurs after
referral to DOJ).
VIII. DEBARMENT AND SUSPENSION - ~ - ._. J.. ' ..~. ~
As stated at 40 C.P.R. § 32.100, "it is EPA's policy to do _
business only with participants which properly use federal
assistance." To protect the interests of the Government, EPA
has the authority to deny participation in its programs to
those who are either debarred or suspended (listed) for their
illegal or improper activities. This guidance sets forth when
and how a referral for debarment is to be made.
Upon Conviction
Under the regulations, only convictions mandate listing.
Immediately upon obtaining a conviction for the violation
of either the Clean Air Act or the Federal Water Pollution
Control Act concerning a "facility", as defined in 40 C.F.R.
§ 15.3(1), the SAIC in the region where the conviction was
obtained will telephonically notify the CED for purposes of
further referring the matter for "listing" the violating facility.
The CED will verify the conviction by obtaining a copy of the
court's judgment of conviction and referring the matter with
the relevant information and documents to the listing official
in OECM.
At Other Times
At any time during the investigation or prosecution of a
case, but before the case is closed, the SAIC may review the
facts of the case to recomnend to the Assistant Director whether
a referral should be made to the Director, Grants Administration
Division, for debarment and/or suspension of the person or
company from the opportunity to participate in EPA assistance
or subagreements pursuant to 40 C.F.R. Part 32. If the decision
by the Assistant Director, after reveiw by the Director, NEIC,
to refer the matter for debarment is made at the time the case
is to be closed, the Assistant Director will send the relevant
documents along with a report (stating the reasons for the
referral) to the CED, which will review those materials and,
if meritorious, make a recommendation for referral through
the Associate Enforcement Counsel to the Assistant Administrator.
If approved by the Assistant Administrator, the matter will
then be referred to the Director, Grants Administration Division.
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Any deciaion by the Assistant Director to refer the natter
for debarment while the investigation is ongoing or whilethe
prosecution is pending will be done in accordance with the
procedures for parallel investigations set forth in Section II
of these General Operating Procedures.
IX. REQUESTS FOR ASSISTANCE IN CRIMINAL INVESTIGATIONS
CONDUCTED BY THE JUSTICE DEPARTMENT AND THE FBI
EPA nay receive requests for technical, legal or investiga-
tive .assistance in environmental criminal cases that are initi-
ated independently by DOJ or the Federal Bureau of Investigation
(FBI).
It is the policy of EPA to provide support for these requests
to the extent resources perait. Requests for legal assistance in
criminal investigations from DOJ or the FBI are reviewed by the
CED and the Assistant Administrator. Requests for investigative
assistance involving substantial investigative and technical
resources are reviewed and determined by the Director of NEIC
and the Assistant Administrator. Accordingly, Regional Offices
that receive any such requests should forward the request to
the appropriate Area Office SAIC.
X. SECURITY OF CRIMINAL INVESTIGATIONS
Information on criminal investigations nust be provided with
restraint, and only to persons who "need to know" the information.
Additionally, special attention must be given to the care and
custody of written materials pertaining to an investigation.
Active criminal investigations shall never be discussed with
personnel outside of the Agency except as is necessary to pursue
the investigation and to prosecute the case. Agency policy is
neither to confirm nor deny the existence of a criminal investi-
gation. Requests for information on active investigations from
the news media must be handled by the appropriate SAIC, the Office
of Public Affairs or the CED consistent with the official
guidance.3/
3/ Agency guidelines on press relations concerning investigations
Eas been circulated in draft. (See memorandum "Press Relations
on Matters Pertaining to EPA's Criminal Enforcement Program",
Assistant Administrator, Office of Enforcement and Compliance
Monitoring and Assistant Administrator for External Affairs to
Assistant Administrators, Regional Administrators, Regional
Counsels, Director of NEIC and all SAICs).
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Finalty, in the event of Inquiries from Congress, the te.i
of the Asaiatant Adminiterator vill work eloaely with the
Congressional Liaison Office prior to releasing any infernation
or aaking any public atataenta.
The NEIC criminal inveatigative offices and CED offices are
equipped with secure office space, filing cabinets, and eviden.ce
vaults. Similar security measures Bust be utilized by Regional
staff assigned to an investigation.
xi. RESERVATIONS
The policy and procedures set forth herein, and internal
office procedures adopted pursuant hereto, are not intended
to, do not, and may not be relied upon to, create a right or
benefit, substantive or procedural, enforceable at lav by a
party to litigation with the United States. The Agency
reserves the right to take any action alleged to be at variance
with these policies and procedures or not in compliance with
internal office procedures that may be adopted pursuant to
these materials.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
KD 3B33
MEMORANDUM
. >"*
SUBJECT: Regional Counsel Reporting Relationship
OFFICE OF
THE ADMINISTRATOR
FROM: Alvin L. Aim
Deputy Administrator Designate
TO: Assistant Administrators
Associate Administrators
Regional Administrators
Regional Counsels
j
As part of an overall review of headquarters-regional "
matters, I have recently reviewed the relationship among the
Regional Counsels, the Regional Administrators, the Office of
General Counsel, and the Office of Enforcement Counsel, and
have met with a number of you to discuss this topic. My cen-
tral desire has been to reconcile the need for strong legal
support to allow the Regional Administrators to succeed in
their duties with the need for national consistency in inter-
preting and applying the laws under which the agency operates.
The decisions which follow are an effort to meet both goals.
Accountability of the Regional Administrators for
Enforcement. The Regional Administrator, rather than the
Regional Counsel, will be fully accountable for enforcement
activities and enforcement results. I believe this is prefer-
able to the current system, under which accountability is
divided between the Regional Administrator and the Regional
Counsel. With my decisions today, the Regional Administrators
now have control of the full range of resources needed for an
effective regional enforcement program and thus are the appro-
priate focus of accountability for that function. The Assistant
Administrator for Enforcement will have the same policy-setting,
review, and oversight responsibilities as the other Assistant
Administrators have for their regional counterparts.
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Allowance holder for Regional Counsel resources. The
Regional Administrator will be the allowance holder for Regional
Counsel budget allocations. Administering these allowances in
headquarters has proved cumbersome and confusing, with no off-
setting benefits. The allowance holder shift will take effect
October 1, 1983, for FY 1984. * '
Program direction of Regional Counsels* The Regional
Administrator is the policy-maker for his region, and is the
Regional Counsel's client. Accordingly, the Regional Counsel
and his staff must be responsive to the policj.es and priorities
established by his client, the Regional Administrator. This
means that the activities of the Regional Counsel will be
determined on a day-to-day basis by the Regional Administrator,
and'that the Regional Counsel is accountable for the quality,
timeliness, and adequacy of the legal services provided to the
Regional Administrator.
Selection and rating of Regional Counsels. Given the
complexity of EPA's regulatory programs, and the possibility
of confusion and damage from divergent legal approaches, I
think we should continue to maintain a single national law
office of which the Regional Counsels are parts. Accordingly,
the lead responsibility for selecting the Regional Counsel and
his staff shall remain with the General Counsel, with the
concurrence of the Regional Administrator on the selection of
the Regional Counsel. Similarly, the General Counsel shall
review and rate the performance of the Regional Counsel, in
consultation with the Assistant Administrator for Enforcement,
and with the concurrence of the Regional Administrator. The
General Counsel shall also have the lead in establishing rating
and promotion criteria for attorneys in the Regional Counsel
. offices.
National Consistency. The General Counsel shall review
pleadings filed in regional cases to the extent necessary to
assure consistency in Agency legal arguments and statements on
issues of national significance. The General Counsel should
speak for EPA in interpreting the law. The Regional Counsels
must of course deal with interpretive problems in carrying out
their duty to advise the Regional Administrators. However,
the Regional Counsels should consult with the Office of General
Counsel to the extent necessary to assure consistency in Agency
statements on legal issues.
These decisions will make the delivery of legal services
more efficient Agency-wide, and will help support an effective,
vigorous enforcement program. Additional directives will detail
how these general decisions will be implemented.
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L_
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GUIDANCE FOR DRAFTING JUDICIAL CONSENT DECREES
EPA GENERAL ENFORCEMENT POLICY f GM - 17
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY
EFFECTIVE DATE: OCT i 9 1983
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THE POLICIES AND PROCEDURES ESTABLISHED IN THIS DOCUMENT ARE
INTENDED SOLELY FOR THE GUIDANCE OF GOVERNMENT PERSONNEL.
THEY ARE NOT INTENDED AND CANNOT BE RELIED UPON TO CREATE
ANY RIGHTS, SUBSTANTIVE OR PROCEDURAL, ENFORCEABLE BY ANY
PARTY IN LITIGATION WITH THE UNITED STATES. THE AGENCY RESERVES
THE RIGHT TO ACT AT VARIANCE WITH THESE POLICIES AND PROCEDURES
AND TO CHANGE THEM AT ANY TIME WITHOUT PUBLIC NOTICE.
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TABLE OF CONTENTS
TOPIC PAGE
I. Introduct ion ." ' 1
II. Front End Standard Provisions - Providing the
Factual and Legal Background for the Consent Decree .. 3
A. Parties -/ 3
Plaintiffs - example 3
Defendants - example 4
Intervenors - example 5
B. Procedural History 5
Examples 5
III. Transitional Clause - Providing a Lead into the
Court's Order 6
Example .' 7
IV. Provisions of the Court's Order- : 7
A. Jurisdiction and Statement of the Claim 7
Jurisdiction - example ' 7
Statement of the claim - example 7
B. Applicability Clause
Example
C. Public Interest Provision 9
Example 9
D. Definitions Section 9
Example 10
E. Compliance Provisions 10
1. Generally 10
Example 12
Example - Sinter Plant 13
2. Compliance Provisions for Repeat Violators .. 14
3. Performance Bonds 15
Example 15
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F. Provisions Defining Other Responsibilities of
the Parties to the Decree 15
1. Notification 15
Example - ' 16
2. Penalties 16
a. Generally 16
Examples __.. 16, 17
- '7
b. Other Obligations Assumed by Defendants .. 18
Example 19
3. Dispute Resolution Provisions 19
4; Nonwaiver Provision 20
Example 21
5. Stipulated Penalties .- 22
Example 23
j
6. Force Majeure 24
Example 26
7. Public Comment on the Decree 27
Example 27
8. Retention of Jurisdiction 27
Example 28
9. Confidentiality of Documents 28
Example 28
10. Modification of the Consent Decree 28
Example 29
11. Termination of the Decree and Satisfaction .. 29
Examples 29, 30
12. Costs of the Action 30
Example 30
13. Execution of the Decree 31
APPENDIX A - Consent Decree Checklist
APPENDIX B - Sample Consent Decrees
(ii)
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I. Introduction
The purpose of this document is to provide guidance on
provisions which EPA should include when drafting a settlement
agreement covering a civil enforcement action for which the
Federal government has decided that judicial remedies are
appropriate. The document explains the appropriate use of
various standard provisions and provides sample language for
these provisions.
Each judicial consent decree negotiated by EPA differs,
because each deals with a different noncompliance problem and
embodies the results of a separate negotiating process. Pro-
visions contained in decrees must differ to reflect the agree-
ment resulting from these negotiations. Most consent decrees,
however, also must contain certain relatively standard provi-
sions to address matters which are relevant in virtually all
enforcement actions. Use of this standard language will
lessen the review necessary of the resulting draft consent
decree. Of course, local court rules may also mandate specific
forms which must be followed or provisions which must be
included in settlement agreements.
The settlement of a potential civil judicial action
should almost always result in a negotiated consent decree.
Occasionally, in the past, EPA has entered into voluntary
agreements to settle some enforcement actions. Those EPA
officials negotiating settlements in EPA enforcement actions
are not encouraged to use such voluntary agreements and they
should be limited to unique situations, for example,
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2
in cases in which no prospective action is required from the
defendant.
A consent decree may operate as a release from liability
for the defendant for the violations addressed by the decree.
For this reason, the decree must be narrow.ly drawn and address
- -*'
only the allegations made in the complaint. The consent decree-
should release the defendant from liability only after the
defendant has complied with all the terms of the decree. In
all cases, settlements must be carefully drafted. Many
parties may be involved as defendants or potential defendants,
particularly in hazardous waste cases; therefore, you should
be certain that non-settling defendants or potential defendants
are not released from liability because EPA has settled with
one or some of the defendants. (See, Nonwaiver Provision,
page 20).
This guidance is meant to apply generally to all EPA media
areas and does not attempt to discuss unique issues limited
to a specific media. Therefore, EPA attorneys drafting
consent decrees should consult any applicable media-specific
policies for guidance in dealing with these issues. You
should follow separately issued guidance for procedures to
use in conducting negotiations and for the review and approval
of proposed consent decrees.
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II. "Front End" Standard Provisions - Providing the Factual
and Legal Background for the Consent Decree.
A. Parties and Cause of Action
It is obvious that each consent decree must identify
the parties and the cause of action. The plaintiff in every
action is the United States of America, on-;behalf of the
United States Environmental Protection Agency. Identify the
cause of action by specifying the legal authorities allegedly
violated by the defendant and by briefly describing those
actions by the defendant which led to the filing of the complaint
The decree should make some reference to the complaint which
has been or will be filed to demonstrate the decree's relation-
ship to pending litigation.
EXAMPLES
1. Plaintiff, United States of America, on behalf
of the United States Environmental Protection
Agency (EPA), has filed the complaint herein on
(date) This complaint alleges that the
defendant violated the Clean Air Act, 42 U.S.C.
§ 7401 e_t seq. and the State Implemen-
tation Plan (the SIP) adopted under the Clean
Air Act by the following actions:
2. Plaintiff, United States of America, on behalf
of the United States Environmental Protection
Agency (EPA), filed the complaint herein on
(date) . This complaint alleges that the
defendant violated the Clean Water Act, 33
U.S.C. §1251 e_t seq. and National Pollutant
Discharge Elimination System (NPDES) Permit No.
by the following actions:
Every consent decree should identify the defendant in terms
of the defendant's status as an individual, corporate entity,
partnership, etc. This section should give enough factual
information to establish the court's personal jurisdiction
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over the defendant and to establish venue. In some situations,
the defendant will own or operate several facilities. Facilities
covered by this decree should .be specified with particularity.
If the decree fails to identify precisely those facilities
or sources which are in violation of the relevant statute(s)
and for which relief is provided in the decree, there may be
some question as to the scope of the decree.
EXAMPLE
Defendant, XYZ Steel Corporation (Defendant),
is a Delaware corporation, registered to do
business in the Commonwealth of Virginia
with its prinicipal place of business at 6004
Main Street, Alexandria, Virginia.
Defendant owns and operates an integrated steel-
making facility known as the "Karefull Works",
in Karefull Hills, Smith County, in the Southern
District of Virginia. Defendant owns and
operates various facilities at the Karefull
Works, including among others, a sinter plant,
comprised of two sintering lines; an open hearth
furnace; three blast furnaces; an electric
arc fan shop, comprised of two electric arc
furnaces; and two coke oven batteries. All
of the above facilities are alleged by the
Plaintiff to be sources of air pollution operating
in violation of the State Implementation Plan
and are covered by this decree.
In addition to the plaintiff and defendant(s), any inter-
venors in the suit (often affected States) should be identified
as parties to the decree. Making the intervenors parties to the
decree is necessary for full settlement and can give them the
ability to enforce the decree's provisions. Binding intervenors
to the decree's provisions also provides the defendant with
complete information as to the extent of its liability. If
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motions to intervene are pending, those, as well as any other
outstanding motions, should be resolved by the decree.
EXAMPLE
The State of Ohio has moved to intervene as
Plaintiff. The Commonwealth of Pennsylvania
has also moved to intervene as Plaintiff to
protect its interest insofar ;as resolution of
the allegations of the complaint affect water
quality in the Mahoning River at the Ohio-
Pennsylvania State line. The motions to
intervene are hereby granted.
B. Procedural History
The decree should include provisions regarding proce-
dural history if the defendant in the case at bar has been
involved in prior relevant enforcement proceedings. It is helpful,
in these cases, to specify the relationship between this decree
and previous decrees and orders in effect with regard to this
defendant. The decree you are drafting may abrogate or add to
the provisions of a previous decree or order. If so, you
should detail these facts in the decree. In some instances,
the previous decree or order may have resolved violations at
the same facility which are so similar to those presently being
addressed that the existence of two decrees would be confusing.
A new decree which incorporates those provisions of the prior
decree still in effect may clarify the obligations of the
defendant. Finally, if the violation of an administrative
order preceded this judicial action, you should note that
fact in this section of the decree.
EXAMPLES
1. Plaintiff and Defendant entered into a
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Consent Decree to resolve a prior case,
Civil Action No. , and the
Defendant has fully and satisfactorily
complied with that prior Decree.
Plaintiff and Defendant entered into a
Consent Decree, to resolve violations of the
Clean Air Act at defendant's
facility. That Decree retains full force and
effect. .'-
Plaintiff issued an administrative order
pursuant to §309 of the Clean Water Act to
the Defendant on (date). The Defendant has
failed to comply with the terms of this
administrative order.
Ill. "Transitional" Clause - Providing a Lead into the Court's
Order
Traditionally, every consent decree contains a transi-
tional clause which signals the end of the introductory
portions of the decree and the beginning of the Court's
order.
You will most likely draft and execute a consent decree
which is the result of a settlement before the introduction
of any evidence or the finding of any facts. In these instances,
it is inappropriate to recite that these events took place.
In some instances, settlement may be reached without the
defendant admitting any facts or points of law and refusing to
admit any liability. It is appropriate to use this clause to
indicate this fact.
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EXAMPLE
There has not been a trial on any issue of fact
or law in this case. However, the parties wish
to settle the dispute described above. Accordingly,
they have agreed to the following order through
their attorneys and authorized officials.
THEREFORE, it is ORDERED as follows:
-'"'
However, if the defendant has admitted certain facts,
these should be explicitly noted in the decree.
IV, Provisions of the Court's Order
A. Jurisdiction and Statement.of the Claim
Every decree must contain a provision reciting that the
court has subject matter and personal jurisdiction. The decree
should recite the statutory authority for the court's jurisdic-
tion. This is particularly important if the defendant disputed
the court's jurisdiction. The following example states the fact
of the court's jurisdiction and provides a waiver by the defen-
dant of any objections to the court.'s jurisdiction.
EXAMPLE
This Court has jurisdiction over the
subject matter and over the-parties
pursuant to 23 U.S.C. §1345; 42 U.S.C. §7603
and 42 U.S.C. 6973. The Defendant
waives any objections it may have to the
jurisdiction of the Court.
Additionally,' Federal Rule of Civil Procedure 8(a) requires
that a complaint state a claim for which relief can be granted.
Obviously, courts cannot grant relief where no cause of action
will lie. It is essential to state- in the decree that the com-
plaint met this requirement, e.g., "The Complaint filed herein
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states a claim for which relief can be granted". Such a state-
ment does not constitute an admission of liability by the
defendant, but only that the allegations of the complaint, if
proved, would support the judgment.
B. Applicability Clause . ;r
The applicability clause defines those to whom the
decree applies. It binds the successors in interest to both
the plaintiff and the defendant, thus providing for those
instances when ownership of facilities or sources may change
after entry of the decree. The language used parallels the
language of Federal Rule of Civil Procedure 65(d) since that
rule sets out the scope of injunctions.
EXAMPLE
The provisions of this consent decree shall
apply to and be binding upon the parties to
this action, their officers, agents, servants,
employees and successors. Defendant shall
give notice of this consent decree to any
successors in interest prior to transfer
of ownership and shall;simultaneously verify
to plaintiff that defendant has given such
not ice.
In some cases, particularly hazardous waste site cases,
the decree may include a further provision which will ensure
that subsequent purchasers of the property have notice
that the site was or is a hazardous waste site and that a
consent decree exists which affects the property. For example,
the decree could provide that it be recorded with the local
office having responsibility for the recording of deeds and
other such instruments. Alternatively, the defendant could
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agree to note the decree on the deed to the property.
C. Public Interest Provision
All consent decrees should contain a provision that the
parties agree and the Court has found that the decree is in the
public interest. Such a statement by the. parties and a finding
-'
by the Court makes it more difficult for others to later attack
the decree's terms. (This is especially true for those decrees
which are subject to public comment. See the discussion at
page 27.)
EXAMPLE.
The parties agree and the Court finds that
settlement of these matters without further
litigation is in the public interest and
that the entry of this decree is the most
appropriate means of resolving these matters.
D. Definitions Sect ion
Consent decrees which contain many technical or poten-
tially ambiguous terms, or define terms according to agreement
reached between the parties should contain a separate section
listing those definitions. This section can also give defini-
tions for potentially misleading terms.
Of course, definitions given must conform with definitions
given in statutes and regulations. ' Do not attempt to redefine
terms that have specific legal definitions; however, examples
or illustrations of these terms may be appropriate.
For consent decrees that are very short and limited in
scope a separate section devoted to definitions may be unne-
cessary. Terms defined in specific decrees will, of course,
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vary. The following example demonstrates one form of such a
section.
EXAMPLE
The following terms used in this consent
decree shall be defined as follows:
a. The term "days" as used;jierein shall
mean calendar days.
b. The term "permanently cease operation",
when used in such phrases as "per-
manently cease operation of the six (6)
open hearth furnaces", shall mean the
complete cessation of production at the
relevant source and the termination of
all power or fuel to the source.
E. Compliance Provisions
1. Generally
Consent decrees must require compliance with applicable
statutes or regulations and commit the defendant to a particular
remedial course of action by a date certain. Consent decrees
negotiated by EPA contain compliance provisions whenever it
is necessary for defendant to take remedial action to -cure
or prevent violations unless no injunctive relief is necessary
to obtain compliance with applicable law (i.e., penalties
only case ) .
Compliance provisions set out-what steps the defen-
dant must take to remedy violations of various environmental
statutes and usually define methods EPA can use to determine
the. defendant's success in meeting these provisions. The
specific compliance provisions of each decree will vary
depending on the facts of the specific case and the media
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involved. Drafters should consult media-specific policies
for guidance.
Compliance provisions should specify the standard or level
of performance which a source ultimately must demonstrate it
has met. Other than interim standards to be attained until
*-*'
" /
final compliance is achieved, a decree should not set a
standard less.stringent than that required by applicable law because
a decree is not a substitute for regulatory or statutory change.
You should avoid including compliance provisions which
require the defendant to comply solely by installing certain
equipment, unless specific technical standards are required by
applicable regulations. Such provisions should require
compliance with the appropriate standard as well. Such a
provision may allow the defendant to argue that installation
of the equipment fulfills the requirements of the consent
decree even if the equipment fails to achieve compliance
with statutes and regulations. You may include provisions
which require the installation of necessary control technology.
However, the provisions must be clear that installation of
specific equipment does not relieve the defendant from the
responsibility for achieving and.maintaining compliance with
the applicable laws and regulations.I/
\_/ Under some statutes, CERCLA, for example, standards for
clean-up are rarely available. When the decree involves
future clean-up activities rather than cash settlements, the
decree may usefully specify continuing State/EPA responsibilities
for determining future clean-up activity.
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An important part of the compliance section of a decree
is the inclusion of provisions which provide a means of
monitoring the defendant's performance. Depending upon the
performance standard required by the decree, monitoring
provisions might, for example, require periodic tests or reports
r
by -the defendant. Test protocols may be set out in technical
appendices to the decree. Generally, in choosing monitoring
provisions you should consider such factors as the impact
on Agency resources of different monitoring requirements
and the ease with which the Agency can proceed with monitoring,
as well as the need for some type of Federal oversight to
ensure that the defendant is addressing noncompliance problems
adequately. For example, you will want to provide for site
entry and access and document review by the Agency in the
decree. You should not waive the Agency's right to assert
or utilize its statutory authorities, such as right of entry
or document production.
EXAMPLE
Any authorized representative or contractor
of U.S. EPA or Intervenors, upon presentation
of his credentials, may enter upon the premises
of the Karefull Works at any time for
the purpose of monitoring compliance with
the provisions of the Consent Decree.
The decree should specify timetables or schedules for
achieving compliance requiring the greatest degree of remedial
action as quickly as possible. Such timetables are particularly
relevant in decrees which mandate construction the defendant
must undertake or cleanup the defendant must accomplish.
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These schedules should include interim dates so that the
Agency can monitor the defendant's progress toward compliance.
EXAMPLE
III. Sinter Plant
A. Applicable Emissions Limitations.
'f
1. Emissions from the sinter plant at Defendant's
Karefull Works shall comply with the emission
limitations in 25 Pa. Code §§123.41, 123.3 and
123.1 as follows:
a. Visible emissions from any sinter plant
stack shall not equal or exceed 20% opacity
for a period or periods aggregating more
than three (3) minutes in any sixty (60)
minute period and shall not equal or exceed
60% at any time, as set forth in 25 Pa. Code
§123.41.
b. Visible emissions from any part of sinter
plant operations shall not equal or exceed
20% opacity for a period of periods aggregat-
ing more than three (3) minutes in any sixty
(60) minute period and shall not equal or
exceed 60%, as set forth in 25 Pa. Code
§123.41.
c. Mass emissions from the sinter plant
windboxes and from all gas cleaning
devices installed to control emissions at
the sinter plant shall not exceed
grains (filterable) per dry standard cubic
foot (the applicable emission limitation).
d. Fugitive emissions from any source of
such emissions at the sinter plant shall
not exceed the emissions limitation set
forth in 25 Pa. Code §123.1
2. The air pollution control equipment described
below shall be installed in accordance with
the following schedule:
Submit permit application November 1, 1980
to DER and to EPA for
approval
Issue purchase orders May 1, 1981
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C eminence installation November 1, 1981
Complete installation September 1, 1982
and start up
* *
Achieve and demonstrate November 1, 1982
compliance
B. Sinter Plant Compliance Program
1. In order to bring Defendant"'!' sinter plant into
compliance with the requirements specified in
paragraph III.A.I.e. above, Defendant shall
install the following air pollution control
equipment on sintering line #1.:
a. Defendant shall install an air pollution
control device which complies with the
emission limitation of paragraph III.A.I.e.
on if 1 sinter plant windbox to control sinter
plant windbox stack emissions.
b. Defendant shall install a scrubber or a
baghouse (or separate baghouse, as appro-
priate) on if 1 sinter line and appropriate
ductwork to replace the existing cyclone
for control of emissions from the discharge
end of if 1 sinter line.
c. Installation of this equipment in no way
relieves the defendant of the require-
ment of achieving and maintaining comp-
liance with the emission limitations set
out in paragraph III.A.I.
2. Compliance Provisions for Repeat Violators
When negotiating with a source with a long history of
repeated violations negotiators should consider including
more stringent compliance monitoring provisions in resulting
.consent decrees. The decree could include provisions for
more frequent monitoring and testing by the source to ensure
continued future compliance or opportunities for more SPA
monitoring and testing in addition to self-monitoring by the
source.
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2. Performance Bonds
EPA may require performance bonds from a defendant to ensure
that actions required by the decree (i.e., clean-up of a site,
installation of pollution control equipment) are actually com-
pleted. The amount of any such bond will vary from case to
-~r
case. The provision should state those circumstances under
which the bond becomes payable. The bond itself is a separate
instrument which sets out more fully those circumstances
under which the bond is forfeited and those conditions under
which the bond is released, as well as any sureties guaranteeing
the bond. Therefore, the bond instrument itself should be
closely review.ed for adequacy.
EXAMPLE
The defendant shall comply with the follwing
provisions at Blast Furnaces 1, 2, 3 and 4.
a. Defendant shall install an emission
suppression system on furnaces 1 and 4.
c. Defendant has posted a bond payable to
United States Treasury in the amount of
$1,000,000 for each of blast furnaces
1 and 4 payable immediately and in full
if defendant fails to certify installation
of an emission suppression system by December
31, 1982, and demonstration of compliance
with the above emission limitation by December
31, 1982.
F. Provisions Defining Other Responsiblities of the
Parties to the. Decree.
1. Notification Provision
Various provisions in consent decrees may require
not i f ica.t ion of different events to the plaintiff, defendant
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and/or the court. When this is the case, it is appropriate
to include a provision setting out to whom such notices should
be given.
EXAMPLE
Whenever, under the terms of this decree,
notice is required to be given by one party to
another party and/or the court, such notice
shall be directed to the individuals specified
below at the addresses given, unless those
individuals or their successors give notice in
writing to the other parties that another
individual has been designated to receive
such communications.
(appropriate names .and addresses)
2. Penalties
a. Generally
Often, the defendant will be liable for a civil penalty for
its violation of the statute. Some decrees may contain only
penalty provisions in situations 'in which some sanctions are
appropriate to respond to past violations and to deter future
misconduct, yet compliance provisions are unnecessary because
the defendant has achieved compliance before the execution
of the decree. The decree should state that the payment is
a penalty so the defendant does not obtain a tax advantage
from its payment.'
EXAMPLE
Defendant shall pay a civil penalty in the
amount of as a result of the defen-
dant's violation of with regard to
facilities which are the subject of this decree.
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The decree should also state terms for payment of any penalty.
Normally, payment should be in a lump sum within a short time
from the entry of the decree." Installment payments may be allowed
in the following circumstances:
- if the defendant can demonstrate an inability both to pay the
- 'T
lump sum penalty and to finance remedial action or continue
in operations; and,
- if there is no reason to believe that further payments will
not be forthcoming.
If the defendant agrees to pay by 'installments, the decree
can provide for interest at the appropriate judgment interest
rate.
Payment provisions should recite the amount of the payment,
to whom paid, how -payment is made and when payment is due. Normally,
the provisions should require defendants to submit a cashier's
check payable to "Treasurer, United States of America" to the
appropriate Regional Counsel.
EXAMPLE
Defendants agree to pay a civil penalty in the
total sum of ONE MILLION, THREE HUNDRED AND FIFTY
THOUSAND DOLLARS ($1,350,000). The terms of
this paragraph do not limit remedies available
for violation of this decree. Payment of ONE
MILLION DOLLARS ($1,000,000) of such penalty
. shall be made within five days of the entry of
this decree, by cashiers check payable to
"Treasurer, United States of America", delivered
to the Regional Counsel, USEPA, Region V, 230
South Dearborn Street, Chicago, Illinois 60640.
The remaining THREE HUNDRED AND FIFTY THOUSAND
DOLLARS ($350,000) of such penalty shall be paid
in the same manner, either by December 31, 1982,
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in which event there will be no interest charge,
or by June 30, 1984, in which event interest
shall be charged at the rate provided in 28 U.S.C.A.
§1961, for the time period between the date of entry
of this decree arfd the date of payment.
b. Other Obligations Assumed by Defendants
During negotiations, defendants may offer to take certain
"T
action in order to offset or in lieu of a cash penalty. For
example,, the defendant may offer to install extra pollution
control equipment which is not necessary to meet legal requirements.
If EPA has agreed to accept lesser amounts in settlement
because of extra pollution control activity by the defendant,
drafters of consent decrees must be sure that this agreement
is explicitly noted in the decree, and that the decree requires
the defendant to operate and maintain any "extra" equipment.
Consent decrees have precedential value, and any such trade-off
between the Federal government and defendants must be readily
apparent to readers of the decree. This provision will also
ensure that the defendant is bound by its agreement to undertake
these actions. You should refer to applicable civil penalty
policies for guidance in evaluating credit-worthy activities and
their appropriate use.
An effective means of ensuring the defendant's performance
of these actions is to include a provision which defers
collection of some or all of a penalty amount until performance
is completed, so long as the amount ultimately paid is acceptable
under any applicable penalty policy. The provision could
then excuse payment of the deferred portion of the penalty
entirely when performance has been satisfactorily completed.
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EXAMPLE
The payment of the penalty amount due on (date)
shall be excused by the plaintiff if the plaintiff
finds that the following conditions have been
met.
a) By jdate) , defendant shall install and operate
a coke-side shed (as described in paragraph I.B.l.b.)
on each battery to control pushing emissions.
Each shed shall be evacuate'6 continuously to
capture and clean emissions from both the pushing
operation and all door leaks.
b) Defendant shall achieve, maintain and demonstrate
compliance with the emission limitation set forth
in paragraph I.A.l.d. with respect to mass emissions
attributable to coke oven pushing operations by
(date) . Defendant shall achieve and demonstrate
compliance with the emissions limitation set forth
in 25 Pa. Code §123 . 44(a ) (3 ) with respect to
door emissions under the shed by (date).
c) Defendant shall certify completion of the conditions
listed in subparagraphs (a) and (b) above to the
plaintiff by certified letter. This notification
should be sent by U.S. Mail, return receipt
requested to (name, title and address) by (date) .
3. Dispute Resolution Provision
Disputes may arise between EPA and the defendant after
execution of the decree as to the defendant's compliance with
the terms of the decree. The decree can provide its own mechanism
for resolving some or all of these potential disputes by the
parties before resorting to the court for resolution of the dispute.
Dispute resolution by the parties should be limited to a specific
amount of time. Such a dispute resolution provisionwill
allow EPA to avoid resolution of each dispute by the court.
Advantages of such a provision include:
a) speedier resolution of disputes because resort to
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the court may not be necessary; and
b) technical disputes can be resolved by those with the
requisite expertise, thus avoiding the need to
educate the court before evidence can be evaluated.
A number of dispute resolution devices can be used in
- -r
decrees. For example:
a) EPA and the defendant could agree to negotiate for a
a limited period of time any such dispute or specified
disputes which arise.
b) The parties could agree to submit the matter to
arbitration. Again, a limited time period should be
specified during which the parties could submit the
matter to arbitration. A specific time'limit would be
appropriate for the arbitration process as well.
c) Failing resolution by the parties, the decree should
provide for application to the court to resolve disputes.
If the matter is submitted to the court for resolution,
the decree should provide that the defendant bears the
burden of proof.
4-. Nonwaiver Provision
At times a set of actions by a defendant may violate
separate statutory requirements. One violation may be settled
while other claims are litigated. In all decrees, it is
proper to state that the decree does not affect the defendant's
liability with regard to other statutes or regulations. The
following sample is acceptable.
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EXAMPLS
This consent decree in no way affects or
relieves defendant of responsibility to
comply with any o'ther State, Federal or
local law or regulation.
If a consent decree settles a portion of a dispute under a
statute, the consent decree should clearl^- indicate that other
aspects of the case have not been settled. For example,, in
some hazardous waste cases an agreement may be reached
dealing with surface clean-up of a site but issues on ground
water contamination may be reserved for later resolution. These
partial consent decrees should clearly state that the defendant
is not fully released from liability*
Various statutes grant EPA specific powers to deal with
emergency situations. The decree may specify that the Agency
retains the power to act in these situations.
EXAMPLE
This decree in no way affects the ability of
EPA to bring an action pursuant to Section
303 of the Act, 42 U.S.C. §7603.
Additionally, you may want to include a provision to
preserve the government's cause of action against third parties
who are not parties to the suit and who may be responsible along
with the named defendant ( s )..
EXAMPLE
This decree does not limit or affect the
rights of the defendants or of the United
States as against any third parties.
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5. Stipulated Penalties
Most decrees should contain provisions for stipulated
penalties. These provisions encourage compliance and simplify
enforcement by providing a significant, clearly defined sanction
in the event the defendant violates a pro.vision of the decree.
f
Stipulated penalties are appropriate for violation of the
following types of provisions:
a) final and interim compliance requirements,
b) reporting, testing or monitoring requirements,
c) any other performance requirements (including
requirements to pay civil penalties).
Provisions for stipulated penalties should include the amount
of the penalty, how the penalty should be paid, and to whom the
penalty should be paid. To set the amount of a proposed stipulated
penalty, you should be guided by applicable statutes, regulations
and EPA policies. Normally, defendants should pay stipulated
penalties by delivering a cashiers, check made payable to "Treasurer
United States of America" to the appropriate Regional Counsel.
The decree may also provide that the court issuing the
decree will resolve disputes between the parties as to liability
for and the amount of an assessed stipulated penalty. The provision
should also make clear that stipulated penalties are not the
plaintiff's exclusive remedy for the defendant's violation of
the decree and that the plaintiff reserves its right to seek
injunctive relief.
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EXAMPLS
Failure by the defendant to achieve full compliance
as required by Paragraphs IV.A.I through 9, except
as excused pursuant to Paragraph V herein (force
majeure), shall require defendant to pay a stipulated
penalty of 57,500 per day for each day that such
failure continues.
Stipulated penalties are payable upon demand as follows:
Cashiers check payable to: Treasurer, United States
of America
Address for payment: USEPA, Region III
Curtis Building, Second Flo<
6th and Walnut Streets
Philadelphia, PA. 19106
Attn: Regional Counsel
Any dispute with respect to defendant's liability
for a stipulated penalty shall be resolved by this
court. The provisions of this paragraph shall not be
construed to limit any other remedies, including
but not limited to institution of proceedings for
civil or criminal contempt, available to plaintiff or
. intervenors for violations of this consent decree or
any other provision of law.
You may want to provide for stipulated penalties which esca-
late based on the number of days the source is not in compliance
or on the amount of excess emissions or effluents discharged
by the source in violation of the decree. For example, for days 1
through 30 of violation the stipulated penalty could be $1000
per day. This could increase to S2000 per day for days 30 through
60 and so on. Similarly, excess di-scharges or emissions could
be expressed as a percentage over the daily limitation and a scale
could be devised for these as well. For example, discharges which
are.less than 10% over the daily discharge limitation would be
subject to a stipulated penalty of $500, from 10% to 25%, $1000
and so forth.
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Another approach which may aid the negotiation process is
to use a stipulated penalties provision which allows the payment
of penalties for interim violations into some kind of escrow
account. The clause could provide for the return of these payments
to the defendant if timely final compliance is achieved and the
terms of the consent decree are satisfied. If such an escrow
. account arrangement is used, EPA staff should review the escrow
agreement itself. The agreement should clearly give the escrow
agent the authority to turn the fund over to EPA in the event
of noncompliance .
6. Force Majeure
The purpose of a force rnajeure clause is to excuse the
defendant's performance pursuant to the decree because of cir-
cumstances beyond the defendant's control (e.g., acts of God).
Therefore, such a clause should not be included in a decree
unless the defendant insists on its inclusion.
Although a force majeure clause is something the clef ^i-^ -1
may want in the decree, it normally will be to EPA's negotiating
advantage if Agency representatives draft the clause. Generally,
the following elements should be included in drafting such a
clause.
a) The clause must clearly limit excused delays in per-
formance to those events which are beyond the control of the
defendant. The decrse may define specifically which circum-
stances would trigger the force majeure clause. Arriving at
a list of such circumstances, however, may consume a good deal
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of negotiating time. For this reason, the term "circumstances
beyond the control of the defendant" is acceptable. The language
in the example (circumstances "entirely beyond the control of the
defendant) is better.
The clause should not allow the defendant to claim economic
hardship or increased costs as circumstances beyond defendant's
control which trigger the force majeure clause.
b) The clause should clearly place the burden on the
defendant to prove that the events causing the delay are based
on circumstances beyond its control. The burden should be one
satisfied by clear and convincing evidence, if possible.
c) The clause should include a provision requiring
notification within a time certain by the defendant to the
plaintiff and the court of any delay or anticipated delay
the defendant claims triggers the force majeure clause. This
notification should include the cause of the delay and the ex-
pected duration of the delay. Failure to give notice of a
particular problem should preclude the defendant from invoking
the force majeure provision based on that problem.
d) The clause should provide that the defendant take
measures to prevent or minimize the delay to the maximum extent
reasonable and to.propose a time when the preventive measures
will be fully implemented.
e) The clause should state that events triggering the force
majeure clause do not automatically excuse the defendant from
complying with the terras of the decree. Ultimate compliance
should occur as quickly as possible, consistent with the decree's
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terms and any extensions granted because of the force majeure
clause.
f) Finally, the clause should provide some mechanism
for dispute resolution, since there may be instances in which EPA
and the defendant cannot agree that a specific delay is caused by
circumstances beyond the defendant's control. (See the discussion
of dispute resolution provisions on page 19.) It is acceptable
to allow tRe defendant to submit such disputes to 'the court for
resolution if agreement cannot be reached between the parties.
EXAMPLE-
a) If any event occurs which causes or may cause delays
in the achievement of compliance at Defendant's faci-
lities as provided in this decree, Defendant shall
notify the Court, the Plaintiff and Intervenors, in
writing within 20 days of the delay or anticipated
delay, as applicable. The notice shall describe in
detail the anticipated length of the delay, the precise
cause or causes of the delay, the measures taken and to
be taken by Defendant to prevent or minimize the delay,
and the timetable by which those measures will be
implemented. The Defendant shall adopt all reasonable
measures to avoid or minimize any such delay. Failure
by Defendant to comply with the notice requirements
of this paragraph shall render this paragraph void and of
no effect as to the particular incident involved and
constitute a waiver of the defendant's right to request
an extension of its obligation under this Decree
based on this incident.
b) If the parties agree that the delay or anticipated delay
in compliance with this decree has been or will be caused
by circumstances entirely beyond the control of Defendant,
the time for performance hereunder may be extended for a
period no longer than the delay resulting from such
circumstances. In such event, the parties shall stipulate
to such extension of time and so inform the Court. In the
event the parties cannot agree, any party may submit
the matter to this Court for resolution.
c) The burden of proving that any delay is caused by
circumstances entirely beyond the control of the
Defendant shall rest with the Defendant. Increased
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-27-
. costs or expenses associated with the implementation
of: actions called for by this Decree shall not, in any
event, be a basis for changes in this decree or extensions
of time under paragraph b. Delay in achievement of one
interim step shall not necessarily justify or excuse delay
in achievement of subsequent steps.
7. Public Comment on the Decree
A Department of Justice regulation ca~lls for a thirty day
public comment period on consent decrees which enjoin the dis-
charge of pollutants. (See, 28 CFR §50.7) A provision should
be included in these decrees which acknowledges this reguire-
ment.
EXAMPLE
The parties agree and acknowledge that final
approval and entry of this proposed decree
is subject to the requirements of 28 CFR
§50.7. That regulation provides that notice
of the proposed consent decree be given to
the public and that the public shall have
at least thirty days to make any comments.
In the usual case, the proposed consent decree is executed
by the parties and forwarded to the court with a cover letter
advising the court that the decree should not be signed by the
Judge or entered until the thirty day comment period has passed.
When the comment period has passed, the court is advised either
that no adverse comments were received or is advised of comments
received and the EPA/DOJ responses to the comments. The court is
then requested to sign and enter the decree.
8. Retention of Jurisdiction
The decree should include a provision which recites that the
court will retain jurisdiction of the case in order to enforce
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the decree and resolve disputes under the decree not specifically
provided for elsewhere.
EXAMPLE
The Court shall retain jurisdiction to modify and
enforce the terms and conditions o£ this decree
and to resolve disputes arising hereunder as
may be necessary or appropriate for the construction
or execution of this decree. .
- -'
9. Confidentiality of Documents
In some actions, defendant will claim that documents
provided by it are confidential in nature. In these cases,
the decree should provide that EPA regulations will control with
regard to such documents.
EXAMPLE
All information and documents submitted by
defendants to EPA/State pursuant to this
decree shall be subject to public inspection
unless identified and deemed confidential by
defendants in conformance with 40 CFR Part 2.
The information and documents so identified
as confidential will be disclosed only in
accordance with EPA and State regulations.
10. Modification of the Consent Decree
Consent decrees entered by the court are court orders and
as such, may not be modified without the court's approval.
Currently, consent decrees are executed on EPA's behalf by
the Special Counsel for Enforcement or her delegatee. There
fore, modifications of decrees should be similarly executed.
A provision in the decree reciting these principles will
help to make clear to defendants what they must do in
order to modify the decree.
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EXAMPLE
Any modification of this consent decree must be
in writing and approved by the Court. Any such
written modification must be executed on EPA's
behalf by the Special Counsel for Enforcement
or her delegatee or successor.
11. Termination of the Decree and Satisfaction
Since the defendant has agreed to settle the case and avoid
--
trial, it is appropriate that EPA agree to a termination of the
consent decree after the defendant has complied with all consent
decree provisions. This provision is most appropriately placed- at
the conclusion of the decree or in the introductory 'front end'
provisions of the decree.
This termination may be automatic upon completion of the terms
of the decree. However, a provision calling for a motion for
termination by the plaintiff is preferred. This'required action
by EPA would aid in eliminating disputes as to whether compliance
was achieved or not and as to when the consent decree terminated.
The decree may provide for a time lag between the time the defen-
dant comes into compliance with the decree and the termination of
the decree. This time lag ensures that the defendant continues to
comply for a specified period of time. When termination is delayed
in this manner, the time period specified is at least 180 days in
most instances.
EXAMPLE
The defendant must demonstrate to the plaintiff's
satisfaction that the defendant has complied with
all oE the terms of the decree. One hundred and
eighty days (180) after such a showing by the
defendant, the plaintiff agrees to move the court
to terminate the decree.
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Additionally, during negotiations the defendant may insist
on a provision which recites that the decree constitutes a full
settlement of the action contained in the complaint and that this
settlement bars the plaintiff from any other action against the
defendant based on those violations. Such a clause should not
be included in a decree unless the defend-a^it specifically insists
on its inclusion. These clauses should be narrowly drawn so that
it is clear that only the specific action in the complaint is
covered. Also, cases with multiple defendants or potential defen-
dants require extra care so that these other parties are not
released from liability when that is not intended.
EXAMPLE
Plaintiff and Intervening Plaintiff will refrain from
initiating any other civil enforcement action pursuant
to Section 113(b) of the Act, 42 U.S.C. §7413"", Section
304 of the Act, 42 U.S.C. §7604, or applicable state
law, with respect to the limitations contained in
this Decree for the emission of particulate
matter and visible emissions from the bark boiler
while Defendant is in compliance with this Decree.
12. Costs of the Action
A consent decree should contain a provision which allocates
responsibility for payment of court costs incurred in the action
up to the date of settlement. In most negotiated settlements,
each party bears its own costs.
EXAMPLE
Each'party in this action shall bear its
own costs.
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13. Execution of the Decree
The decree should include signature lines for those who
will execute the decree on be'half of the parties and for the
court.
The authority to settle judicial actions is currently
* "T
delegated to the Associate Administrator for Legal and Enforce-
ment Counsel. Therefore, consent decrees-must be signed by
the AA for OLEC or his delegates. Additionally, in keeping with
EPA's Memorandum of Understanding with the Department of Justice,
settlements of cases in which DOJ represents the Agency require
the consultation and concurrence of the Attorney General.
Therefore, the decree should be signed by the Attorney General
or his delegatee.
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APPENDIX A
CONSENT DECREE CHECKLIST
(This checklist can be used as a guide for inclusion of
consent decree.provisions.)
NAME OF CASE:
U.S. v.
Civil Action No.
PROVISION
INCLUDED
I YES NO
COMMENTS
Identification of Parties
and cause of action -
Plaintiff & initiation
of the action
Defendant - where defen-
dant does business or is
incorporated, facilities
covered by decree
Intervenors
Procedural history - prior
consent decrees and status
prior administrative action
Transitional Clause
Jurisdiction
Statement of claim - com-
plaint states claim for
relief
Applicability clause -
to whom decree applies
Public Interest - decree
is in the oublic interest
Definitions
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-2-
PROVISION
INCLUDED
YES I NO
COMMENTS
Compliance Provisions -
Test method for demonstra-
tion of compliance
Monitoring provisions
Entry and access
Standards defendant must
mee t
Schedules - final deadline
and interim schedules
construction schedules
Operation & maintenance
procedures
Performance bonds
Notification provision
Civil penalties -
Amount and form of payment
(lump sum or installment)
Penalty payment to State
Credi ts
Dispute Resolution
Nonwaiver provision
Stipulated penalties -
I terns covered
How payed
Dispute resolution
Escrow arrangements
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PROVISION
INCLUDED
I YES I NO
Force Majeure
Events covered
Burden of proof on
defendant
Defendant's duties
(notification requirement)
Dispute resolution
Public comment on decree
(28 CFR §50.7)
Retention of jurisdiction
(by the Court)
Confidentiality of
documents
Modification of decree
Termination & satisfaction
Costs of the action
Execution of decree
COMMENTS
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APPENDIX B
SAMPLE CONSENT DECREES
(Attached are consent decrees from the Air and Water
Programs. Although these decrees do not contain all
of the provisions discussed in the guidance, they
can be used as examples of completed decrees.)
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
)
) CIVIL ACTION NO. G 81-289 CA 7
) JUDGE BENJAMIN F. GIBSON
r
UNITED STATES OF AMERICA, )
Plaintiff, '
and
STATE OF MICHIGAN, _et al. ,
)
Intervening Plaintiff, )
v. )
PACKAGING CORPORATION OF AMERICA )
Defendant )
CONSENT DECREE
Plaintiff, United States of America,.representing the
United States Environmental Protection Agency (hereinafter, the
"EPA"), having filed the Complaint herein on June 3, 1981;
And the State of Michigan, representing the Michigan
Department of Natural Resources (hereinafter, the "DNR") and the
Michigan Air Pollution Control Commission (hereinafter, the
"Commission" or "MAPCC"-) , having moved to intervene as a party
plaintiff on June ^, 1981, and this Court having granted said
Motion;
And Plaintiff and Intervening Plaintiff having acted in
concert in this action against Defendant, Packaging Corporation
of America;
And Plaintiff, Intervening Plaintiff and Defendant
having agreed that settlement of this matter is in the public
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interest and that entry of this Decree without further litigati-on
is the roost appropriate means of resolving this matter;
And Plaintiff, Intervening Plaintiff and Defendant
having moved the Court to entej" this Consent Decree;
NOW, THEREFORE, before the taking of any testimony, upon
the pleadings, without adjudication of any issue of fact or law,
without any admission or denial of the violations alleged in the
Complaint and upon consent and agreement of the parties of this
Decree, it is hereby Ordered, Adjudged and Decreed as follows:
STIPULATIONS
1. This Court has jurisdiction of the subject natter
herein and of the parties consenting for the purpose of entering
this Consent Decree.' The Complaint states a claim upon which
relief can be granted against Defendant, under Section 113 of the
Clean Air Act, as amended, (hereinafter, the "Act"), 42 U.S.C.
7413.
2. The provisions of this Consent Decree shall apply to
and be binding upon all the parties to this action, their
officers, directors, agents, servants, employees, successors and
assigns, and all persons, firms and corporations having notice of
the Consent Decree and who are, or will be, acting in concert and
privity with the Defendant to this action or its officers, direc-
tors, agents, servants, employees and successors and assigns. In
the event Defendant proposes to sell or transfer its real
property or operations subject to this Consent Decree, it shall
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ad Vise such purchaser or transferee of the existence of this
Decree} and shall notify all parties to this Decree of such
proposed sale or transfer.
3. The partiesagree* and acknowledge that final ap-
proval and entry of this Decree is subject to the requirements of
28 C.'F.R. §50.7, which provides that notice of proposed Consent
Decrees be given to the public and that the public shall have at
least 30 days in which to make any comments,
4. Defendant owns and operates a facility in Filer
City, Michigan (hereinafter, the "Filer City facility") which
includes a niley bark-fired boiler (hereinafter, the "bark
boiler"). The bark boiler is a source of air pollution emissions
subject to the provisions of Michigan Air Pollution Control
Commission Rules and the federally approved Michigan State
Implementation Plan (hereinafter, the "Michigan SIP").
5. Former MAPCC Rule R 336.44 established an emission
limitation for partlculate matter of 0.65 pound of particulate
matter per 1000 pounds of exhaust gases, corrected to 50 percent
excess air, for the bark boiler.
6. Former MAPCC Rule R 336,41 established a smoke plume
opacity limitation of 40 percent, generally, with certain exemp-
tions not material to this Decree.
7.- On May 31, 1972, the Administrator of the EPA ap-
proved, as part of- the Michigan SIP, MAPCC Rules R 336.44 and R
336.41.
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8. On or about November 19, 1979, Defendant received
from the EPA a Notice of Violation citing, inter alia, the bark '
boiler for violations of R 336. M and R 336. iU of the approved
Michigan SIP. On December 19,"1979, a conference was held at EPA
offices in Chicago, Illinois, with representatives of Defendant
and the DNR, to discuss the cited violations.
9. MAPCC Rule R 336.1331 currently establishes an
emission limitation for particulate matter of 0.50 pound of
particulate matter per 1000 pounds of exhaust gases, corrected'to
50 percent excess air, for the bark boiler.
10. MAPCC Rule R 336.1301 currently establishes a smoke
plume opacity limitation of 20 percent, generally, with certain
exemptions not material to this Decree.
11. On May 6, 1980, the Administrator of the EPA condi-
tionally approved MAPCC Rules R 336.1331 and R 336.1301, as part
of the Michigan SIP (45 Fed. Reg. 29791).
12. On or about August 17, 1982, Defendant received from
the EPA a Notice of Violation citing the bark boiler for viola-
tions of R 336.1301 of the Michigan SIP.
13- Defendant owns and operates a boiler (hereinafter,-
the "No. 5 boiler") at its Filer City facility, which boiler was
formerly a recovery boiler but is currently fired with natural
gas. Defendant has applied to the Michigan DNR for an installa-
tion permit to convert the No. 5 boiler to multi-fuel operation
(including the combustion of coal, wood, bark, wood waste,
sludge, and natural gas). The Commission has recently approved.
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the Issuance of such installation permit. The converted No. 5'
boiler will have a baghouse collector as its air pollution con-.
trol equipment (hereinafter the "No. 5 baghouse").
ORDER
In consideration of the foregoing and the representa-
tions made in open Court by the parties 'Hereto, IT IS HEREBY
ORDERED:
Defendant shall achieve, demonstrate, and maintain final
compliance with MAPCC Rules R 336.44, R 336.41, R 336.1331 and R
336.1301, and other emission limitations specified in this
Consent Decree, in accordance with the following paragraphs:
COMPLIANCE PROGRAM
1. Defendant shall install an add-on collector (side-
stream separator) to the existing pollution control equipment of
the bark boiler according to the following schedule:
a. commence engineering and
preparation of plans and
specifications Completed
b. submit copies of plans
and specifications to EPA
and DNR; submit applica-
tion to DNR for installation
permit Completed
c. issue purchase order for
collector 1/31/83
d. begin on-site construction 8/31/83
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e. complete construction and
installation 10/31/83
f. complete "shakedown" and
achieve compliance with a
particulate emission limita-
tion of-.'lJO pound of particu- ,
late matter per 1000 IDS of
exhaust gases, corrected to
50 percent excess air, and
MAPCC Rule R 336.1301 11/30/83
g. demonstrate compliance with
the emissions limitations set
forth in Subparagraph l(f) in
accordance with Appendix A 12/31/83
2. If Defendant elects to proceed with the No. 5 boiler
conversion and construction of the No. 5 baghouse in lieu of the
-s
compliance program set forth in Paragraph 1 it shall, on or
before March 15, 1983, so notify the EPA and the DNR, in writing,
and certify that it has sent out requests for bids for the com-
pletion of the No. 5 boiler conversion and No. 5 baghouse and
that the necessary funds have been appropriated. Upon such
notification and certification, Defendant shall proceed with the
compliance program set forth in Paragraph 3 and shall be there-
after excused from complying with subsequent requirements of
Paragraph 1; provided, that if any stipulated penalties have
accrued, prior to the date of such notification and certifica-
tion, for failure to comply with the requirements of Paragraph 1
such penalties shall then become due and payable upon demand. If
the notification and certification described herein is not given
to the EPA and the DNR on or before March 15, 1983, Defendant
shall not be relieved from the obligation under Paragraph 1 to
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install the sidestream collector in accordance with the terms .
thereof.
3. If Defendant elects to proceed with the No. 5 boiler
conversion and complies with the notice and certification re-
quirements of Paragraph 2 on or before .March 15, 1983, it shall
install the No. 5 baghouse and either (a) route the bark boiler
exhaust through the No, 5 baghouse, or (tr^)' complete the No. 5
boiler conversion such that no bark or wood wastes are burned in
the bark boiler, but will be burned instead in the No. 5 boiler,
the emissions of which will be controlled by the No. 5 baghouse,
in accordance with the following schedule:
Completed
Completed
6/30/83
2/28/814
a. prepare specifications.and
submit copies to EPA and DMR
b, obtain installation permit
c. award contract
d. begin on-site construction
e. complete construction and
installation and achieve com-
pliance at the bark boiler
with a particulate emission
limitation of .05-pound of
particulate matter per 1000
Ibs of exhaust gases, cor-
rected to 50 percent excess
air, and MAPCC Rule R-336.1301
f. demonstrate compliance with the
emissions limitations set forth
in Subparagraph 3(-e) in accor-
dance with Appendix A 7/31/8*1
If Defendant elects to proceed with the compliance program set
forth in this paragraph it shall not operate the bark boiler
6/30/84
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after June 30, 1984, unless the emissions thereof are controlled
by the No. 5 baghouse.
4. If the No. 5 boiler and bark boiler are both con-
trolled by the No. 5 baghouse", at no time shall' they be operated
simultaneously.
5. If Defendant proceeds with construction and instal-
' De-
lation of the sidestream collector in accordance with the terns
of this Decree, nothing herein shall preclude it from proceeding
with conversion of the No. 5 boiler at a later date (after March
15, 1983); provided, that such later election to proceed with the
conversion shall not relieve Defendant from any obligation
arising under this Decree to complete the requirements of Para-
graph 1, hereof.
INTERIM REQUIREMENTS
6. Until final compliance is achieved pursuant to
Paragraph 1 or 3, whichever is applicable, Defendant shall
achieve and maintain compliance by the bark boiler with MAPCC
Rule R 336.1331 and limit the density of visible air contaminants
to a maximum of 44 percent opacity, determined as a six-minute
average, except that a maximum of one six-minute average of up to
51 percent opacity shall be permitted in any one hour. Com-
pliance shall be determined in accordance with EPA Method 9,
Appendix A', 40 CFR, Part 60.
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7. The operation and maintenance procedures set forth
in Appendix B shall be implemented and followed until such time'
as bark boiler emissions are controlled by the No. 5 baghouse.
8. Upon request -of the EPA or the DNR,' and within
thirty (30) days of any such request, Defendant shall perform
stack testing at the bark boiler in accordance with Appendix A.
Defendant shall notify the EPA and the DNR of the date of the
stack test in sufficient time to allow said agencies to observe
the testing^ Such tests shall not be requested more often than
every three months unless evidence is shown .of noncompliance with
the interim limits specified above.
CONTINUOUS MONITORING REQUIREMENTS
9. Defendant has installed and calibrated, and shall
maintain and operate, a continuous opacity monitoring system in
the stack which serves the bark boiler, in accordance with the
procedures set forth in 40 CFR Part 60, Appendix 8, or any other
applicable procedures approved by the EPA.
10. Beginning with the calendar quarter commencing on
January 1, 1983, Defendant shall prepare quarterly reports of
"excess" emissions as measured by the opacity monitor identified
in Paragraph 9 above. The reports shall be submitted to the EPA
and the DNR within 30 days from the end of eachcalendar quarter
and shall include-the following information:
a. The magnitude of "excess" emissions in percent
opacity, the date and time of commencement and
completion of each time period of excess emis-
sions, and the cause of each such exceedance.
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b. If a malfunction Is indicated in the report, the
corrective actions taken, if any,
c. The date and times the opacity monitor was
inoperative, or of system repairs and adjust-
ment "
d. When the opacity monitor is inoperative,
all equipment malfunctions and corrective
actions taken.
e, Where no "excess" emissions have occurred, such
shall be stated.
For the purposes of continuous emissions reporting pursuant to.
this Decree, "excess" emissions are those opacity monitor
readings which exceed the applicable opacity standard. Average
values may be obtained by integration over 6 minutes or by
arithmetically averaging a minimum of 2^ equally spaced, instan-
taneous opacity measurements in each 6 minute pe'riod.
11. During the period from January 1, 1983, through
March 31, 1983, and for the first 90 days following a demonstra-
tion of compliance pursuant to paragraph l(g), Def-endant shall
report all six-minute averages of excess emissions during boiler
operation, including startup and shutdown. During all other
times. Defendant shall maintain records of opacity during startup
and shutdown and shall report all six-minute averages of excess
emissions during boiler operation. During startup and shutdown,
unless requested otherwise by the EPA or the DNR, Defendant need
only report the times of excess emissions and the highest and
lowest opacity readings.
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12. After termination of this Consent Decree, Defendant
shall continue to maintain the . information required for "excess"
emissions reports at its Filer City facility and make such infor-
mation available to the EPA a"nd the DNR upon request,
13- Beginning with the calendar quarter commencing on
January 1, 1933, and continuing until all necessary work is
completed, Defendant shall send to the EPA and the DNR,, within 30
days from the end of each calendar quarter, quarterly reports on
progress toward the achievement of final compliance with the
terms of this Decree. If Defendant fails to meet a compliance
schedule increment, it shall notify the EPA and the DNR within 10
days of such failure and set forth the cause therefor.
14. EPA and DNR repesentatives may at any time during
normal business hours enter upon the premises of the Filer City
facility to monitor compliance with this Decree including, but
not limited to, performing stack tests on the bark boiler.
Authorized contractors of the EPA or the DNR may, upon five days
notice to Defendant, enter upon said premises for purposes of
inspecting the facility or records pertaining to the bark boiler
or stack testing of the bark boiler.
15- All information, reports, and notifications required
by this Decree to be submitted by Defendant shall be sent to the
following addr'esses:
Chief, Air Compliance Branch Chief, Air Quality Division
United States Environmental Michigan Department of
Protection Agency, Region V Natural Resources
-230 South Dearborn P.O. 3ox 30028
Chicago, Illinois 60604 Lansing, Michigan 48909
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GENERAL PROVISIONS
16. As consideration for Defendant's entry Into this
Consent Decree and the assumption of the obligations provided for
herein, Plaintiff and Intervening Plaintiff will refrain from
initiating any other civil enforcement action pursuant to Section
113(b) of the Act, 42 U.S.C. §7413, Section 304 of the Act, 42
U.S.C. §7604, or applicable state law, with respect to the limi-
tations contained in this Decree for the emission of particulate
matter and visible emissions from the bark boiler while Defendant
is in compliance with this Decree.
17. This Consent Decree in no way affects Defendant's
responsibility to comply with any other state, federal or local
regulations or any Order of the Court including, but not limited
to-, Section 303 of the Act, 42 U.S.C. §7604.
18. Defendant acknowledges that it has been advised that
it rnay be subject to the applicable requirements of Section 120
of the- Clean Air Act, 42 U.S.C. §7420, but reserves the right to
contest the assessment of any penalties under such Section.
19. Nothing in this Decree shall be construed as an
admission by Defendant of violations of any provisions of the Act
or of the Michigan SIP.
20. Notwithstanding any other provision of this Decree,
Defendant may achieve compliance with any emission limitation or
compliance requirement herein applicable to the bark boiler by
permanently ceasing operation of the bark boiler. Stipulated
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penalties associated with failure to perform any such requirement
or achieve such limitation shall cease to accrue on the date of
actual shutdown and written certification thereof to the EPA and
the DNR. All stipulated-penalties which have a'ccrued prior to
such actual shutdown and certification shall become due and
payable upon demand.
r
21. The EPA and the DNR reserve the right to seek a
modification of this Decree to impose raore. stringent emission
limitations on the bark boiler, and to enforce such more strin-
gent emission limitations, by reason of any revised (federally
enforceable) state or federal law or regulation, including any
revised implementation plan. Defendant reserves the right to
seek a modification of this Decree if the EPA promulgates or
approves a revised SI? that contains requirements that are less
stringent than the emission limitations set forth in the Michigan
SI? for the bark boiler as of the date of lodging of this Decree.
It is the intent of the parties that any such modification of
this Decree be accomplished through mutual agreement on a revised
control strategy or compliance schedule (if necessary), followed
by a joint application to the Court.
22. The parties anticipate that the installation of the
add-on collector (sidestreara separator) referred to in Paragraph
1 of- this Consent Decree will result in compliance with the
particulate and Visible emission limitations further specified in
Subparagraph l(f). Should such compliance not be achieved with
proper operation and maintenance of such equipment, PCA may apply
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bo' the MAPCC for the establishment of an alternate visible emis-
sion limitation, pursuant to MAPCC Ru.is R 336 ,1301 (1)( c ) t the
<«
establishment of a particulate mass emission limitation (not to
exceed 0.5 lb per 1,000 pounds of exhaust gases, corrected to 50
percent excess air), or both. In either case, the DNR agrees not
to oppose such application on the basis that compliance can be
achieved by the installation of pollution*control equipment
additional to that required by this Consent Decree, unless such
additional pollution control equipment is required because of a
change in the applicable lav/. Such application shall in no way
relieve PCA of its obligation to fully and timely comply with all
interim and final requirements as set forth in this decree or
from any liability for payment of stipulated penalties pursuant
to Subparagraph 27(e)(l).
23- No provision of any installation permit necessary to
implement the compliance program set forth in Paragraph 1 shall
be construed to conflict with any express provision of this
Consent Decree.
24. Nothing in this Consent Decree shall be construed to
limit the right of the MAPCC and the DNR to impose and enforce
more stringent emission limitations or "pollution control equip-
ment requirements for the bark boiler as the result of any revi-
sion to the Commission's rules.
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CIVIL PENALTY AND COSTS
25. In consideration of Intervening Plaintiff's agree-
ment to settle this action. Defendant agrees to reimburse the
State of Michigan the sura 'of $_40,000 for its cos,ts and expenses
associated with this case. Payment shall be made by certified
check payable to "Treasurer, State of Michigan" and sent to the
Assistant in Charge, Environmental Protection Division, Depart-
ment of the Attorney General, Law Building, Lansing, Michigan
48913, "within 15 days after final entry of this Decree.
26. The United States has .determined that, pursuant to
Section 113 of the Act, 42 U.S.C. §7413 and the Civil Penalty
Policy of July 8, 1980, Defendant should pay a civil penalty of
$40,000. Payment shall be made by certified check payable to
"Treasurer, United States of America" and sent to the Regional
Hearing Clerk, United States Environmental Protection Agency,
Region V, 230 South Dearborn, Chicago, Illinois 60604, within 15
days after final entry of this Decree.
STIPULATED PENALTIES
27. It is hereby stipulated and agreed aniong the parties
that unless excused by the provisions of Paragraph 28 of this
Decree the following stipulated penalty provisions shall apply
and may be enforced by the United States:
a. If Defendant fails to complete the installation of
all pollution control equipment required by this Decree by
the date specified (in Paragraph 1 or 3, whichever is
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applicable) it shall be liable for a stipulated penalty of
£7,500 for each day it operates the bark boi.ler without the
required pollution control equipment.
b. If Defendant Tails to issue a purchase order for the
sidestream collector by the date specified in Paragraph l(c),
it shall be liable for a stipulated penalty of $2,000 for
each day such failure continues. "'*
c. If Defendant fails to meet any other interim date of
a construction schedule (in Paragraph 1 or 3, whichever is .
applicable), it shall be liable for a stipulated penalty of
$1500 for each day such failure continues. Any penalty
liability under this subparagraph will be forgiven if
Defendant meets the final compliance date in the applicable
schedule for completion of the installation of the required
pollution control equipment.
d. If Defendant fails to meet any interim testing
requirement or emission limitation for the bark boiler it
shall be liable for the following stipulated penalties:
1) The sura of $1000 for each day that the
failure to meet a testing requirement
continues;
2) The SUED of $1,500 for each day that a
violation of an interim opacity limic
continues;
-16-
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3) The sum of $7,000 for each day that a
violation of an interim particulars mass
emission limitation continues.
e. If Defendant Tails to demonstrate final compliance
with the applicable emission limits under Paragraph 1 (if
applicable) by December 31, 1983, or fails to maintain
compliance thereafter, it shall be liable for stipulated
penalties'as follows:
1) The sum of $2,500 per day for each day
failure to demonstrate and/or maintain
compliance with the specified particu-
late mass emission limit in Subparagraph
l(f) continues. Defendant's total
liability under this subparagraph shall
not exceed $20,000.
2) The sum of $7,000 for each day failure
to demonstrate and/or maintain com-
pliance with MAPCC Rule R 336.1331
continues.
3) If Defendant fails to demonstrate and/or
maintain compliance with MAPCC Rule R
336.1331 and also fails to comply with R
336.1301, the additional sum of $2,500
for each day failure to demonstrate and/
or maintain compliance with MAPCC Rule R
336.1301 continues.
-17-
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f. If Defendant fails to demonstrate final com-
pliance with the applicable emission limits under
Paragraph 3 (if applicabl-e) by July 31, 198'^, or fails
to maintain compliance thereafter, it shall be liable
for stipulated penalties as follows:
r
1) The sum of $2,500 for each day failure
to demonstrate and/or maintain coc-
pliance with the specified particulate
mass emission limit in Su'oparagraph 3(e)
continues. Defendant's total liability
under this subparagraph shall not exceed
$20,000.
2) The sum of $7,000 for each cay failure
to demonstrate and/or maintain com-
pliance with MAPCC Rule R 336.1331
continues.
3) The sum of $2,500 for each day failure
to demonstrate and/or maintain com-
pliance with MAPCC Rule R 336.1301
continues.
g. .If Defendant fails to comply with any of the
operation and'maintenance requirements set forth in
Appendix B of this Decree, it shall be liable for a
-13-
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1 stipulated penalty of $2,500 for each day such failure
continues .
h. If Defendant fails to submit any quarterly
"excess" emissions report's pursuant to Paragraph 10 or
progress reports pursuant to Paragraph 13, it shall be
liable for a stipulated penalty of $500 for each day
-,*
such failure continues.
One-half of any payment made under this paragraph shall be by
certified check payable to "Treasurer, United States of America"
and sent as specified in Paragraph 26, within 15 days after a
demand for payment has been made. The remaining one-half of any
payment made under this paragraph shall be by certified check
payable to "Treasurer, State of Michigan" and sent as specified
in Paragraph 25, within 15 days after a demand'for payment has
been ir.ade. Such payments shall not be considered the exclusive
remedy for violation of this Decree,
FORCE MAJEURE
28. Defendant's obligation to meet any requirement set
out in this Decree, including achievement of compliance with any
specific emission standard or regulation, may only be excused to
the extent that such delay is beyond the control of,-and without
the faul-t of Defendant. Defendant shall notify the EPA and the
DNR in writing within twenty (20) days of the event which causes
or may cause the delay, describing in detail the anticipated
length of the delay, the precise cause or causes of delay, the
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TERMINATIOK
31. This Decree shall terminate one year after the date'
scheduled for demonstration of compliance in Paragraph l(g) or
3(f), whichever' is applicable, or at such earlier date as Defen-
dant has demonstrated and maintained compliance with the require-
ments of Paragraph l(f) or 3(e), whichever is applicable, as may
f
be -modified by the MAPCC pursuant to Paragraph 22, for a con-
tinuous period of six months, unless either party petitions the
Court for an extension of this Decree and the Court grants such
^extension. Until termination of this Decree, jurisdication is
retained by this Court for the purpose of enabling any party to
this Decree to apply to this Court at any time for the enforce-
ment of any terms of this Decree.
For Plaintiff - United States of America
F. HENRY F^tyCKT II
Acting Assistant Attorney General-
Land and Natural Resources Division
United States Deoartment of Justice
Dated \
By
Assistant United States Attorney
Vestfern Dis/triot of Michigan
VALDAS iy. ADA^KUS
Regional Adrnirtistra'
U.S. Environmental ---
Protection Agency, Region V
Dated
Dated
0 1
c. ~
-------
3y
__ ___
DEBORAH CAREER
Assistant Regional Counsel
U.S. Environmental
Protection Agency, Region V
Courtney M'.G Price
Special Counsel for Enforcement
United States Environmental
Protection Aaencv
Dated
For Intervening Plaintiff - State of Michigan, et _al
-
By _
"' -s
_..
E. E. -VALENTIN E
Assistant Attorney General,
Environmental Protection Division
TEWART FREEMAN
Assistant-In-Charge
Environmental Protection Division
Dated
7 /?/3
Datec
For Defendant - Packaging Corporation of America
aU.
M.R. HAYMON
President
Packaging Corporation of America
Dated JJ^^U
Attest
A. A. Kaller
Assistant Secretary
Packaging Corporation of America
-22-
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Consent Decree entered in accordance with the foregoing
this day of , 19?-3.
Judge Benjamin ?. Gibson
United Spates District Court
For The Western District of
Michigan
3y
Deputy Clerk
-2?-
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JUL 15
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF WEST VIRGINIA
Civil Action No. 77-1163-BL
UNITED STATES OF AMERICA, )
)
Plaintiff, )
v. )
) CONSENT ORDER
CITY OF WELCH, McDOWELL COUNTY, )
WEST VIRGINIA, a municipal )
corporation, WELCH SANITARY )
BOARD, and the STATE OF WEST )
VIRGINIA, )
) .
Defendants. )
THIS MATTER having come before the Court upon the
application of the United States of America for entry of this
order; and
WHEREAS, the United States of America, the City of Welch
(hereinafter, "Welch"), Welch Sanitary Board (hereinafter,
"Board"), and the State of West Virginia have consented to
entry of this order;
WHEREAS, this Court has jurisdiction of this action
pursuant to 28 U.S.C. 1345 and 33 U.S.C. 1319(b);
WHEREAS, venue is proper in this Court pursuant to 28
U.S.C. 1391 (b) and (c); and
WHEREAS, the Court finds that: Welch owns a sewage
collection system in McDowell County, West Virginia, which
discharges pollutants into Tug Fork; Welch controls the
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measures taken and to be taken by Defendant to prevent or mini-
mize the delay, and the timetable by which those measures will be
implemented. Defendant will adopt all reasonable measures to
avoid or minimize any such del"ay*
29- If the parties agree that the delay or anticipated
delay was beyond the control of, and without fault of, Defendant
---*'
this IT.ay be so stipulated and the parties may petition the Court
for appropriate modification of this Decree. If the parties are
ur.able to reach such agreement, any party may petition the Court
for appropriate relief. The burden of proving that any delay was
beyond the control of, and without fault of, Defendant is on
Defendant. Failure by Defendant to comply with the notice re-
quirements of this paragraph shall render Paragraphs 28 through
30 void, and of no force and effect as to the particular incident
involved and constitute a waiver of Defendant's right to request
an extension of its obligations under this Decree based on such
incident. Increased cost, by Itself, shall not constitute an
appropriate Justification, for the purposes of this paragraph, to
excuse noncompliance with any of the terms of this Decree.
30. An extension of one compliance date based upon a
particular incident does not necessarily mean that Defendant
qualifies for an extension of a subsequent compliance date or
dates. Defendant must make an individual showing of proof re-
garding each incremental step or other requirement for which an
extension is sought.
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financing and initiation of construction of sewage treatment
works for that city, Welch created the Board to supervise,
control, administer, operate and maintain any and all works for
the collection and treatment of sewage which are owned by Welch;
Tug Fork is a navigable waterway as defined in the Clean Water
Act, section 502(7), 33 U.S.C. 1362(7); on August 23, 1974,
pursuant to 33 U.S.C. 1342, and based upon an application
submitted.on behalf of the Board, the United States (through
the U.S. Environmental Protection Agency) issued a national
pollutant discharge elimination system (hereinafter, "NPDES")
permit for the discharge of pollutants from the Board's sewage
treatment system; the terms or conditions of the permit were
not contested by the Board, Welch, or the State; the permit
became effective on September 22, 1974; the permit required
the Board to submit to the United States not later than March
22, 1975, a compliance schedule for termination of its discharge
in accordance with 33 U.S.C. 1311 (b) (1) (B); the Board has
failed to submit the compliance schedule in violation of the
permit; on May 17, 1976, the United States pursuant to 33
U.S.C. 1319(a)(3) and (4) issued findings of violation and an
order for compliance to the Board,citing the Board for
violations of its- permit conditions and directing the Board to
submit to the United States not later than June 18, 1976, a
schedule for compliance; the Board has failed to submit the
schedule for compliance in violation of the May 17, 1976,
order; neither Welch nor the Board have constructed a sewage
treatment works capable of achieving effluent limitations
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- 3 -
based upon secondary treatment as defined by the Adainstrator
of the Environmental Protection Agency pursuant to 33 U.S.C.
1314 (d)(l); Welch and the Board have continued to discharge
pollutants within the meaning of 33 U.S.C. 1311; the discharge
of pollutants by Welch and the Board is noj: in compliance with
an NPDES permit and is in continued violation of 33 U.S.C.
1311; and
WHEREAS, the parties have agreed that this order shall be
lodged and made available for public comment prior to entry by
the Court, pursuant to the procedures identified at 28 C.F.R.
50.7; and
WHEREAS, entry of this order is in the public interest;
NOW THEREFORE,
Pursuant to F.R.C.P. 65, IT IS on this day of
, 1983, ORDERED that:
1. Municipal compliance plan.
Within 120 days of the entry of this order, or by November
30, 1983, whichever is earlier, the Board shall pursuant to
F.R.C.P. 5 file with the Court and serve upon an individual
designated by the United States Environmental Protection Agency
(hereinafter, "EPA designate") and.serve upon an individual
designated by the V/est Virginia Department of Natural Resources
(hereinafter, "VJVDNR designate") a plan (hereinafter,
"municipal compliance plan") for achieving compliance with the
Clean Water Act. The Board shall file a municipal compliance
olan which:
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- 4 -
(a) has been certified by a registered professional
engineer;
(b) identifies a treatment technology which the Board
proposes to use and which will achieve the level of effluent
quality attainable through the application of secondary
treatment;
(c) proposes that construction of the treatment facility
which will achieve the level of effluent quality attainable
through the application of secondary treatment will be started
by no later than May 1, 1984;
(d) proposes that construction of the- treatment facility
will be completed no later than May 1, 1986;
(e) proposes that the level of effluent quality
attainable 'through the application of secondary treatment will
be achieved no later than August 1, 1986;
(f) estimates the capital requirements of the treatment
technology proposed;
(g) estimates the operation and maintenance costs of
the treatment technology proposed;
(h) identifies the financial mechanisms proposed to be
used by the Board for facility cons-truction;
(i) identifies the financial mechanisms proposed to be
used by the Board for generating adequate revenues for operation
and maintenance;
2. Modifications to municipal compliance plan: The
United States may inform the Board of any modifications which
the United States proposes to the municipal compliance plan.
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- 5 -
In Che event the Board agrees to modify the municipal compliance
plan as proposed by the United States, the Board shall pursuant
to F.R.C.P. 5 file with the Court, and serve upon the EPA
designate and the WVDNR designate, the modifications to which
the Board and the United States have agreed. In the event the
Board does not agree to modify the municipal compliance plan
as proposed by the United States (or in the event the Board
fails to file with the Court modifications to which the United
States and the Board have agreed), the United States may
pursuant to F.R.C.P. 5 file with the Court and serve upon the
Board proposed modifications to the municipal-compliance plan.
The municipal compliance plan shall be deemed to be modified
as proposed by the United States unless, within fourteen days
of the filing of the proposed modification, American Cyanamid
applies to the Court pursuant to F.R.C.P. 7 for further order.
3. Implementation of municipal compliance plan. The
Board shall implement the municipal compliance plan filed by
the Board, as modified by (a) modifications filed with the
Court to which the Board and the United States have agreed,
(b) modifications filed by the United States and for which
timely motion for further order has-not been made by the Board,
and (c) further order of the Court.
4. Minimum effluent limitations. After August 1, 1986,
the Board and Welch are enjoined from discharging any effluent
from the collection system or treatment works that does not
achieve the following effluent limitations:
(i) the arithmetic mean of the values for biological
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- 6 -
oxygen demand for effluent samples collected in any period of
thirty consecutive days shall_ not exceed 30 milligrams per
liter;
(ii) the arithmetic mean of the values for biological
oxygen demand for effluent samples collexSted in any period of
seven consecutive days shall not exceed 45 milligrams per
liter;
(iii) the arithmetic mean of the values for biological
oxygen demand for effluent samples collected in any period of
thirty days shall not exceed 15 percent of the arithmetic mean
of the values for influent samples collected at approximately
the same times during the same period; . .
(iv) the arithmetic mean of the values of suspended
solids for effluent samples collected in any period of thirty
consecutive days shall not exceed 30 milligrams per liter;
(v) the arithmetic mean of the values of suspended
solids for effluent samples collected in any period of seven
consecutive days shall not exceed 45 milligrams per liter;
(vi) the arithmetic mean of the values of suspended
solids for effluent samples collected in a period of thirty
consecutive days shall not exceed 15 percent of the arithmetic
mean of the values for influent samples collected at approximately
the same time during the same period;
(vii) the effluent values for pH shall be maintained
within the limits of 6.0 to 9.0; and
(viii) the fecal coliforra content of the effluent shall
not exceed 200 per. 100 milliliter as a 30-day geometric mean
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- 7 -
based on not less than five samples during any 30-day period
nor exceed AOO per 100 milliliter in more than ten percent of
all samples during any 30-day period.
5. Compliance with NPDES permit. After August 1, 1986,
the Board and Welch are enjoined from discharging any pollutant
from the collection system or treatment works except in
compliance with an NPDES permit issued pursuant to the Clean
Water Act.
6- Penalty. The Board shall pay a civil penalty of
[amount], by tendering a check in that amount payable to the
order of the Treasurer of the United .States within thirty
days of the entry of this order.
7 Stipulated penalties. If the Board violates any
provision of this order, the Board shall pay a civil penalty
of
(i) $100 per day for each of the first 30 days of
violation,
(ii) $200 per day for each of the next 60 days of
violat ion,
(iii) $500 per day for each of the next 60 days of
violation, and
(iv) $1000 per day for each of the next 60 days of
violation. Thereafter, the United States may apply to the
Court for appropriate penalties. The United States may apply
to the Court at any time for other non-penalty relief in the
event of any violation of the Act, of any permit issued
pursuant to the Act, or of this order.
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- 8 -
8. Nonwaiver provision. This order in no way relieves
any defendant of responsibility to comply with any other State,
Federal or local law or regulation. The order dated May 17,
1976, of the United States EPA retains full force and effect.
U.S.D.J.
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GUIDANCE ON EVIDENCE AUDITS OF CASE FILES
r
EPA GENERAL ENFORCEMENT POLICY #GM - 20
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY
EFFECTIVE DATE: ^EC ^
-------
I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
/ WASHINGTON. D.C. 20460
*'<. it--'.'-''
DEC a u I963
MEMORANDUM
SUBJECT: Guidance for Evidence Audit of Case Files for
Civil Referrals
FROM: Courtney M. Pric<
Assistant Administrator foV Enforcement and
Compliance Monitoring
TO: Assistant Administrators
Regional Administrators, Regions I-X
Regional Division Directors, Regions I-X
Regional Counsels, Regions I-X
I recently forwarded to you a draft policy relating to
the performance of an evidence audit in all cases which were
to be referred to Headquarters for possible judicial enforcement
and invited comments upon that draft policy.
I have received comments from many of you, and have
considered them carefully. Most of the comments were directed
to the requirement that evidence audits be mandatory in all
cases which were about to be referred to Headquarters. While
I firmly believe that evidence audit would be useful in all
cases, ,1 agree that it should not be mandatory. I have,
therefore, revised the policy so that those cases which, in
the opinion of the Regional Administrator, are sufficiently
complex or involve substantial quantities of documents, may
be subjected to an evidence audit before referral at the
option of the Regional Administrator. After referral, I may
order an evidence audit should I believe one to be warranted.
Attached is the final policy on evidence audits which
incorporates the approach described above. Your comments on
the draft were appreciated, and I would welcome additional
suggestions as experience with evidence auditing is gained
under this policy.
Attachment
cc: Director, NEIC
Deputy Admi r. i strator
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GUIDANCE FOR EVIDENCE AUDIT OF
CASE FILES FOR-CIVIL REFERRALS
INTRODUCTION
r
Cases developed by EPA, pursuant to the environmental statutes,
and referred to the Department of Justice for potential civil
litigation, must be based upon rigorously documented evidence.
and supporting data in order to minimize delay in filing,
facilitate discovery proceedings, present a convincing case for
the EPA and DOJ attorneys engaged in pre-trial negotiations,
and finally, to prevail in the courtroom. EPA Headquarters
and Regional staffs have demonstrated widely varying approaches
to the provision of well-ordered referral packages and the
supporting documentation.
The types and volume of documents relating to a case are often
overwhelming. For instance, a single hazardous waste case may
involve 100,000 or more documents. The attorneys are confronted
with difficult tasks of assembling and organizing all documents,
preparing witness lists, and extracting information necessary to
conduct interrogatories and depositions. Documents supporting
EPA civil referrals may originate in Regional and Headquarters
program offices,- State files and/or contractors performing sup-
i
port services for the Agency. Records obtained from the prospec-
tive defendants are often so voluminous and/or disorganized that
-------
it is difficult for the EPA/DOJ case management team to effec-
tively review them. Lack of sufficient assembly and organiza-
tion of this material becomes obvious at the time of discovery
(production of documents) or during settlement and negotiation
discussions. The consequences may include unknowingly exposing
* *r
case strategy, inadvertently releasing privileged or confiden-
tial material, or being unaware of documents that could strength-
en or weaken the case. The Agency position is vulnerable to
attack if the EPA/DOJ case management team is not assured of
the integrity of the supporting documentation, as well as a
case file that is organized for rapid and efficient access.
Indeed, attack of the government's documentation and procedural
weaknesses is now being advocated in journals and papers of the
legal profession as a tactic for defending attorneys.
Evidence Auditing
An evidence audit includes the review,, inventory and organization
of the documents that make up a case file. The audit of a
simple case may involve only the assembly and handwritten com-
pilation of the documents present and a review of the case files
to ensure that all pertinent documents are present. The audit
of a highly complex case involving large numbers of documents
may involve, in addition to assembly and inventory, computerized
-------
listing and sophisticated categorization, construction of evi-
dence profiles, and elaborate formatting as an aid to understand-
ing the material content of the documents. These audits assist
case attorneys in their preparations for pre-trial and trial
phases of Agency litigation efforts. The evidence audit system
is designed to: (1) establish an overall case document control
system, (2) provide quick and complete access to records, and
(3) provide a means for assuring adraissibility of the evidence.
The system is flexible to accommodate the increase of material
as the case progresses and is adaptable to changes in case
strategy.
With the advent of the hazardous waste enforcement programs and
the conduct of a major portion of the Agency's hazardous waste
site investigations by contractors, the National Enforcement
Investigations Center was assigned responsibility for making
evidence audits available to Regional and Headquarters staffs
for enforcement case referrals developed as a result of these
activities. Accordingly, an evidence audit capability has now
been available -for approximately three years and is extensively
used and endorsed by Regional and Headquarters case management
teams who have availed themselves of -this service.
Evidence audits lend a major advantage to the case develop-
ment process; enhancing the supportive rationale and develop-
ment of legal strategy of cases; detecting flaws in evidence
-------
with timeliness that permits repair; the avoidance of presenting
questionable evidence in the court room; and perhaps most impor-
tantly, conserving the time and case-handling capacities of the
case attorneys and Regional and Headquarters Technical staff.
ff
PROPOSED PROCEDURE
It is recognised that EPA cases vary greatly in terms of com-
plexity involving volume and types of records generated. The
scope of the audit should be tailored to the complexity of the
case and to the number of documents involved.
Because each case is unique, and not all cases may require an
evidence audit, the decision on. whether an evidence audit will
be performed,, either for cases referred directly to the Depart-
ment of Justice by the Region or before referral to Headquarters
Office of Enforcement and Compliance Monitoring prior to trans-
mittal to the Department, will be made by the Regional Administra-
tor or his/her designee. For those cases referred to the Assist-
ant Administrator for Enforcement and Compliance Monitoring,
the Assistant Administrator may require an evidence audit after
referral by the Region and prior to transmittal to the Depart-
ment of Justice, should it become apparent during the review
process that, such an audit is necessary. In general, the
audits should include:
o document assembly
o document organization and review
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;u.-..,... :^^,;;^.;
o evidence profiles .
o document storage and retrieval
Each of these elements is discussed briefly in the following
sections. " ;..
?
Document Assembly
The case management team is responsible for identifying all EPA
and contractor groups generating records for the case. Each of
these organisational components should be instructed to gather
and transmit complete files to the Regional case attorney or
Headquarters case attorney (for nationally managed cases).
Continuing investigation and data collection, if any, should be
described in the transmittal memo from the document generating
group to the case management team and a date specified when the
remaining documents will be transmitted. The attorney should
also gather all of the documents obtained from the prospective
defendant(a) and place them in one location for review.
The NEIC Contract Evidence Audit Team (CEAT) can provide assist-
ance to Regional and/or Headquarters case management teams for
identification of organizational elements generating documents
participating in the case and to track receipt of records. The
team can also assist in the assembly of documents.
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Document Organization and Review
This process establishes a complete case file of readily retriev-
able records. The case management team decides on an organiza-
tional format. A variety of formats is available (chronological,
by subject matter, author, recipient, type of document, etc.).
Once this decision is made, the documents are examined by the
Evidence Audit Team and placed in the proper order. Each docu-^
ment is stamped with a serial number and pertinent identifying
information is recorded on an inventory sheet. Computer services
enhance this effort and can provide keyword search capability.
Computerized document databases are accessible to all members of
the case management team and printouts can be provided to facili-
tate document retrieval. Databases are secured and access is
limited to those persons authorized by the case management team.
In addition to describing each document, the review process is
designed to identify originals, duplicates, confidential business
information, enforcement sensitive records, privileged material
and evidentiary records.
Files obtained from the prospective defendant(s) are also organ-
ized and reviewed in a similar manner. As new documents are
generated or received, they are added to the system.
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Evidence Profiles
Evidence profiles are graphic or narrative presentations of the
history and chain-of-custody of evidence from the time of collec-
tion through final disposition. They are particularly useful for
- *f
demonstrating integrity of samples and analyses where multiple
laboratories, field teams, or other entities are involved. Field
and laboratory records must be located and audited. Information
documenting the transfer, handling, and storage of samples is
extracted and summarized. The profile identifies the following:
o when evidence was collected
o who collected it
o all transfers of custody
o when received by a laboratory
o who received it
o how it was secured
o who performed analytical tasks
o when tasks occurred
o where samples are stored after analysis
The source and serial number of documents containing this infor-
mation is also recorded. This procedure enables the case attor-
ney to assess the adequacy of sampling and analysis records and to
rehabilitate deficient areas in the paper trail. The goal is to
demonstrate integrity of the evidence in order to arrive at a
stipulation for uncontested entry of the data.
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Document Storage and Retrieval
Completed files must be controlled to provide quick and complete
access to the documents and to prevent deterioration of the filing
system. Document control procedures must be followed to keep
^ track of the location and distribution of all records. A document
control officer (DCO) or the case attorney must assume this respon-
sibility.. Files should be securely stored and made available only
on a check-out basis. Computerized inventories enable multiple
users of the files to identify documents they need to access.
The NEIC, through its evidence audit -capability has developed an
additional litigation support service to assist Regional case
management teama with large and complex cases. The procedures
provide for assembly of records, categorizing, stamping, and in-
ventorying the documents, and making microfiche copies. A com-
puterized listing of the documents is prepared which includes the
following information:
o document control number
o document date
o document type
o source of document
o author
o recipient
o title or subject
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^--'r'"-> - |1;i'-v---'-f'!-t r'-"!-" -'-->"'!*-*' I'-'^-n--...^--'--.--^''^.--^^..-..''^^!.'^^^.';'-:..'^-'' '..^r^^jC:^','-:"^'^''''^"':.'"^?' . J: '. -:''.."..''.''i- T.'^Trcr'igr '"-'
Information retrieval can be selected on any of these categories.
Complete microfiche sets can be* provided to all members of the
litigation team and hard copies can be made available as needed.
This procedure enables the team to work with .the information while
'?'
keeping the original files intact.
The evidence audit procedures described above are intended to
lead to admissibility of evidence and to assure that supporting
documents for allegations listed in the complaint are controlled
and available.
«
OPERATIONAL OUTLOOK
Based on historical data, completion of evidence audits in re-
sponse to requests for assistance from the NEIC Evidence Audit
Team can be expected to be from two weeks for cases involving
small numbers of documents to four to six weeks for complex cases
with large numbers of documents.
During fiscal year 1984, the NEIC Evidence Audit Unit can assist
Regions and Headquarters elements in establishment and implemen-
tation of internal document control and evidence audit procedures
as requested.
To secure evidence audit services, the Regional Administrator or
his/her designee should contact either of the two Deputy Project
-------
10
Officers (Mr. Robort Laidlaw or Ms. Geraldine Hilden) at FTS
234-4656 to describe the nature .of the case and documents and
work out schedules and logistics. The requestor should then
confirm the request, in writing, to the DPO.
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''t PROI*
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, DC E0460
MEMORANDUM
SUBJECT: Guidance on Evidence Audit of Case Files for
Civil Referrals
TO:
FROM:
Assistant Administrators
Regional Administrators
Associate Administrator for Regional Operations
Courtney M. Price
Assistant Administrator for Enforcement
and Compliance Monitoring
Attached is the most recent addition to the General
Enforcement Policy Compendium, the Guidance on Evidence
Audit of Case Files. Also attached are revised Index
and Table of Contents sheets, reflecting thisaddition.
Please update your Policy Compendium, and if any documents
are missing, contact Glenn Unterberger, Office of Legal and
Enforcement Policy, at 382-4541.
Attachments
cc: F. Henry Habicht II, DOJ
Regional Counsels
Associate Enforcement Counsels
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POLICY ON CIVIL PENALTIES
EPA GENERAL ENFORCEMENT POLICY SGM - 21
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY
['? :" : f, 10? ?
EFFECTIVE DATE:
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Introduction
This document, Policy on Civil Penalties, establishes a
single set of goals for penalty assessment in EPA administrative
and judicial enforcement actions. These goals - deterrence,
fair and equitable treatment of the regulated community, and
swift resolution of environmental problems - are presented here
in general terms. An outline of the general process for the
assessment of penalties is contained in Attachment A.
A companion document, A Framework for Statute-Specific
Approaches to Penalty Assessments, will also be issued today.
This document provides guidance to the user of the policy on
how to write penalty assessment guidance specific to the user's
particular program. The first part of the Framework provides
general guidance on developing program-specific guidance; the
second part contains a detailed appendix which- explains the basis
for that guidance. Thus, the user need only refer to the appendix
when he wants an explanation of the guidance in the first part of
the Framework.
In order to achieve the above Agency policy goals, all
administratively imposed penalties and settlements of civil
penalty actions should, where possible, be consistent with the
guidance contained in the Framework document. Deviations from
the Framework's methodology, where merited, are authorized as
long as the reasons for the deviations are documented. Documen-
tation for deviations from the Framework in program-specific
guidance should be located in that guidance. Documentation for
deviations from the program-specific guidance in calculating
individual penalties should be contained in both the case files
and in any memoranda that accompany' the settlements.
The Agency will make every effort to urge administrative
law judges to impose penalties consistent with this policy and
any medium-specific implementing guidance. For cases that go
to court, the Agency will request the statutory maximum penalty
in the filed complaint. And, as proceedings warrant, EPA will
continue to pursue a penalty no less than that supported by the
applicable program policy. Of course, all penalties must be consis-
tent with applicable statutory provisions, based upon the number
and duration of the violations at issue.
Applicability
This policy statement does not attempt to address the
specific mechanisms for achieving the goals set out for penalty
assessment. Nor does it prescribe a negotiation strategy to
achieve the penalty target figures. Similarly, it does not
address differences between statutes or between priorities of
different pro'--- = ms. Accordingly, it cannot be used, by itself,
as a basis? frr determining an appropriate penalty in a specific
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action. Each EPA program office, in a joint effort with the
Office of Enforcement and Compliance Monitoring, will revise
existing policies, or write new policies as neede'd. These
policies will guide the assessment of penalties under each
statute in a manner consistent with this document and, to the
extent reasonable, the accompanying Framework.
Until new program-specific policies are issued, the
current penalty policies will remain in effect. Once new
program-specific policies are issued, the Agency should
calculate penalties as follows:
0 For cases that are substantially settled,
apply the old policy.
0 For cases that will require further sub-
stantial negotiation, apply the new policy
if that will not be too disruptive.
Because of the unique issues associated with civil penal-
ties in certain types of cases, this policy does not apply to
the following areas:
° CERCLA §107. This is an area in which
Congress has directed a particular kind
of response explicitly oriented toward
recovering the cost of Government cleanup
activity and natural resource damage.
° Clean Water Act §311(f) and (g). This also
is cost recovery in nature. As in CERCLA
§107 actions, the penalty assessment
approach is inappropriate.
0 Clean Air Act §120. Congress has set out in
considerable detail the level of recovery
under this section. It has been implemented
with regulations which, as required by law,
prescribe a non-exclusive remedy which
focuses on recovery of the economic benefit
of noncompliance. It should be noted, how-
ever,- that this general penalty policy builds
upon, and is consistent with the approach
Congress took in that section.
Much of the rationale supporting this policy generally
applies to non-profit institutions, including government entities.
In applying this policy to such entities, EPA must exercise judg-
ment case-by-case in deciding, for example, how to apply the
economic benefit and ability to pay sanctions, if at all. Further
guidance on the issue of seeking penalties against non-profit
entities will bf forthcoming.
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Deterrence
The first goal of penalty"assessment is to deter people from
violating the lav/. Specifically, the penalty should persuade the
violator to take precautions against falling into noncompliance
again (specific deterrence) and dissuade others from violating the
law (general deterrence). Successful deterrence is important
because it provides the best protection fo-r the environment. Tn
addition, it reduces the resources necessary to administer the
laws by addressing noncompliance before it occurs.
If a penalty is to achieve deterrence, both the violator and
the general public must be convinced that the penalty places the
violator in a worse position than those who have complied in a
timely fashion. Neither the violator nor the general public
is likely to believe this if the violator is able to retain an
overall advantage from noncompliance. Moreover, allowing a
violator to benefit from noncompliance punishes those who have
complied by placing them at a competitive disadvantage. This
creates a disincentive for compliance. For these reasons, it
is Agency policy that penalties generally should, at a minimum,
remove any significant economic benefits resulting from failure
to comply with the law. This amount will be referred to as the
"benefit component" of the penalty.
V7here the penalty fails to remove the significant economic
benefit, as defined by the program-specific guidance, the case
development team must explain in the case file why it fails to do
so. The case development team must then include this explanation
in the memorandum accompanying each settlement for the signature
of the Ass is tant'Administrator of Enforcement and Compliance
Monitoring, or .the appropriate Regional official.
The removal of the economic benefit of noncompliance only
places the violator in the same position as he would have been if
compliance had been achieved on time. Both deterrence and funda-
mental fairness require that the penalty include an additional
amount to ensure that the violator is economically worse off than
if it had obeyed the law. This additional amount should reflect
the seriousness of the violation. In doing so, the penalty will
be perceived as fair. In addition the penalty's size will tend
to deter other potential violators.
In some classes of cases, the normal gravity calculation may
be insufficient to effect general deterrence. This could happen
if, for example, there was extensive noncompliance with certain
regulatory programs in specific areas of the United States. This
would demonstrate that the normal penalty assessments had not been
achieving general deterrence. In such cases, the case development
team should consider increasing the gravity component sufficient to
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achieve general deterrence. These extra assessments should
balance the other goals of this policy, particularly equitable
treatment of the regulated community.
This approach is consistent with the civil penalty
provisions in the environmental laws. Almost all of them
require consideration of the seriousness of the violation.
This additional amount which reflects the seriousness of the
violation is referred to as the "gravity component". The
combination of the benefit and gravity components yields the
"preliminary deterrence figure."
As explained later in this policy, the case development
team will adjust this figure as appropriate. Nevertheless, EPA
typically should seek to recover, at a minimum, a penalty which
includes the benefit component plus some non-trivial gravity
component. This is important because otherwise, regulated
parties would have a general economic incentive to delay
compliance until the Agency commenced an enforcement action.
Once the Agency brought the action, the violator could then
settle for a penalty less than their economic benefit of
noncorapliance. This incentive would directly undermine the
goal of deterrence.
Fair and Equitable Treatment of the Regulated Community
The second goal of penalty assessment is the fair and
equitable treatment of the regulated community. Fair and
equitable treatment requires that the Agency's penalties must
display both consistency and flexibility. The consistent
application of a penalty policy is -important because otherwise
the resulting penalties might be seen as being arbitrarily
assessed. Thus violators would be more inclined to litigate
over those penalties. This would consume Agency resources and
make swift resolution of environmental problems less likely.
But any system for calculating penalties must have enough
flexibility to make adjustments to reflect legitimate differences
between similar violations. Otherwise the policy might be
viewed as unfair. Again, the result would be to undermine
the goals of the Agency to achieve swift and equitable resolu-
tions of environmental problems.
Methods for quantifying the benefit and gravity components
are explained in the Framework guidance. These methods signifi-
cantly further the goal of equitable treatment of violators.
To begin with, the benefit component promotes equity by re-
moving the unfair economic advantage which a violator may have
gained over complying parties. Furthermore, because the benefit
and gravity components are generated systematically, they
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will exhibit relative consistency from case to case. Because
the methodologies account for a wide range of relevant factors,
the penalties generated will be responsive to legitimate
differences between cases.
However, not all the possibly relevant differences between
cases are accounted for in generating the preliminary deterrence
amount. Accordingly, all preliminary det-eXrrence amounts should
be increased or mitigated for the following factors to account
for differences between cases:
0 Degree of willfulness and/or negligence
0 History of noncompliance.
0 Ability to pay.
0 Degree of cooperation/noncooperation.
0 Other unique factors specific to the
violator or the case.
Mitigation based on these factors is appropriate to the extent
the violator clearly demonstrates that it is entitled to miti-
gation.
The preliminary deterrence amount adjusted prior to the
start of settlement negotiations yields the "initial penalty
target figure". In administrative actions, this figure
generally is the penalty assessed in the complaint. In judicial
actions, EPA will use this figure as the first settlement goal.
This settlement goal is an internal target and should not be
revealed to the violator unless the case development team feels
that it is appropriate. The initial penalty target may be
further adjusted as negotiations proceed and additional
information becomes available or as the original information is
reassessed.
Swift Resolution of Environmental Problems
The third goal of penalty assessment is swift resolution
of environmental problems. The Agency's primary mission is to
protect the environment. As long as an environmental violation
continues, precious natural resources, and possibly public
health, are at risk. For this reason, swift correction of
identified environmental problems must be an important goal of
any enforcement action. In addition, swift compliance conserves
Agency personnel and resources.
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Th e Agency will pursue two basic approaches to
quick settlements which include swift resolution of
problems without undermining deterrence. Those two
are as follows:
promoting
environmental
approaches
1. Provide incentives to settle and institute prompt
remedial action.
EPA policy will be to provide specific incentives to settle,
including the following: _;..
0 The Agency will consider reducing the
gravity component of the penalty for
settlements in which the violator already
has instituted expeditious remedies to
the identified violations prior to the
commencement of litigation.^/ This would
be considered in the adjustment factor
called degree of cooperation/noncoopera-
tion discussed above.
0 The Agency will consider -accepting additional
environmental cleanup, and mitigating the
penalty figures accordingly. But normally,
the Agency will only ac-cept this arrangement
if agreed to in pre-litigation settlement.
Other incentives can be used, as long as they do not result in
allowing the violator to retain a significant economic benefit.
2. Provide disincentives to delaying compliance.
The preliminary deterrence amount is based in part upon
the expected duration of the violation. If that projected period
of time is extended during the course of settlement negotiations
cue to the defendant's actions, the case development team should
adjust that figure upward. The case development team should
consider making this fact known to the violator early in the negoti
ation process. This will provide a strong disincentive to delay
comoliance.
T/Forthepurposesotthisdocument, litigation is deemed to
begin:
0 for administrative actions - when the
respondent files a response to an adminis-
trative complaint or when the time to
file expires or
0 for judicial actions - when an Assistant
United States Attorney files a com-
plaint in court.
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Intent of Policy 'a'nd Information Requests for Penalty Calculations
The policies and procedures, set out in this dqcument and in
the Framework for Statute-Specific Approaches to Penalty Assessment
are intended solely for the guidance of government personnel.
They are not intended and cannot be relied upon to create any
rights, substantive or procedural, enforceable by any party in
litigation with the United States. The Agency reserves the right
to act at variance with these policies and procedures and to change
them at any time without public notice. In addition, any penalty
calculations under this policy made in anticipation of litigation
are exempt from disclosure under the Freedom of Information Act.
Nevertheless as a matter of public interest, the Agency may
elect to release this information in some cases.
Courtney M. Price
Assistant Administrator for
Enforcement and Compliance Monitoring
Attachment
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ATTACHMENT A
Outline of Civil Penalty Assessment
I. Calculate Preliminary Deterrence Amount
* ff
A. Economic benefit component and
B. Gravity component
(This yields the preliminary deterrence amount.)
II. Apply Adjustment Factors
A. Degree of cooperation/noncooperation (indicated through
pre-settlement action.)
B. Degree of willfulness and/or negligence.
C. History of noncompliance.
D. Ability to pay (optional at this stage.)
E. Other unique factors (including strength of case,
competing public policy concerns.)
(This yields the initial penalty target figure.)
III. Adjustments to initial Penalty Target Figure After
Negotiations Have Begun
A. Ability to pay (to the extent not considered in
calculating initial penalty target.)
B. Reassess adjustments used in calculating initial
penalty target. (Agency may want to reexamine
evidence used as a basis for the penalty in the
light of new information.)
C. Reassess preliminary deterrence amount to reflect
continued periods of noncompliance not reflected
in the original calculation.
D. Alternative payments agreed upon prior to the
commencement of litigation.
(This yields the .vJjusted penalty target figure.)
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5 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
? WASHINGTON. D.C.
«;'"
MEMORANDUM
'f
'SUBJECT: New Civil Penaltv Policy
~ M , L ^.
FROM: Courtney M. Price -v. . . _L -.. \ ' >. / -- ----.
Assistant Administrator for Enforcement-V.-.^
and Compliance Monitoring :£.£,
TO:
Associate Administrators
Assistant Administrators
General Counsel
Inspector General
Regional Administrators
Staff Office Directors
-C.
.>-*
Attached is the Agency's new civil penalty policy. This
new penalty policy will establish a consistent Agency-wide
approach to the assessment of civil penalties while allowing
substantial flexibility for individual cases within certain
guidelines. It is designed to promote the goals of deterrence,
fair and equitable treatment of the regulated community and
swift resolution of environmental problems. No attempt is
made to address issues specific to -each statute the Agency
administers. Instead, this will be left to guidance developed
by each program.
The policy
Penalt i es and A
Penalty
consists of t
Framework for
o documents: Policy on Civil
Statute-Specific Approaches to
Assessments. The
behind
each
first document focuses on the
the penalty policy. The Framework
program on how to develop medium-
general philosophy
provides guidance to
specific penalty policies.
The new penalty policy will not be truly effective until
the medium-specific penalty policies are completed. Thus it
is important that work begin on the medium-specific policies
as soon as possible. I am therefore requesting that each
program office meet with their counterparts in OECM and develop
workplans for the development of those policies. Please submit
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2
those workplans to me byCEflBfflBH^@|jp& The Deputy Adminis-
trator has requested that we add the workplans to the Action
Tracking System as we receive them. If you have any questions
regarding this memorandum or the -new civil penalty policy,
please contact Jonathan Libber of the Office of,Legal and
Enforcement Policy. He may be reached at 426-7503.
Attachment
cc: Enforcement Policy Workgroup Members^
Associate Enforcement Counsels ''*
OECM Office Directors
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A FRAMEWORK FOR STATUTE-SPECIFIC APPROACHES
TO PENALTY ASSESSMENTS:
IMPLEMENTING EPA19- POLICY ON CIVIL PENALTIES
EPA GENERAL ENFORCEMENT POLICY =GM - 22
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY
FTP | 6 1984
EFFECTIVE DATE:
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Contents Pa q e
Introduction
Writing a Program-Specific Policy 2
I. Developing a Penalty Figure 2
11. Calculating a Preliminary' 6eterren.ee Amount 2
III. Adjusting the Preliminary Deterrence Amount 3
to Derive the Initial Penalty Target Figure
IV. Adjusting the Initial Penalty Target Figure 4
During Negotiations
Use of the Policy in Litigation
Use of the Policy as a Feedback Device
Append ix 6
Introduction 6
The Preliminary Deterrence Amount 6
I. The Benefit Component ' 6
A. Benefit from delayed costs 7
B. Benefit from avoided ccsts . 9
C. Benefit from competitive advantage 10
D. Settling a case for an amount less than 11
the economic benefit component
II. The Gravity Component 13
A. Quantifying the gravity of a violation 13
B. Gravity factors 14
Initial and Adjusted Penalty Target Figure 16
I. Flexibility-Adjustment Factors 17
A. Degree of willfulness and/or negligence 17
B. Degree of cooperation/noncooperation 19
C. History of nonccrnpliance 21
D. Ability to pay 23
Other unique factors 24
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Appendix (Con't)
II. Alternative Payments 24
III. Promoting Consistency 27
_~^-
" f
Use of Penalty Figure in Settlement Negotiations 28
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Introduction
This document, A Framework for Statute-Specific Approaches
to Penalty Assessment, provides guidance to the user of the
Policy on Civil Penalties on how to develop a medium-specific
penalty policy. Such policies will apply to administratively
imposed penalties and settlements of both.administrative and
judicial penalty actions. '*'
In the Policy on Civil Penalties, the Environmental
Protection Agency establishes a single set of goals for penalty
assessment. Those goals - deterrence, fair and equitable
treatment of the regulated community, and swift resolution of
environmental problems - will be substantially impaired unless
they are pursued in a consistent fashion. Even different
terminology could cause confusion that would detract from the
achievement of these goals. At the- same time, too much rigidity
.will stifle negotiation and make settlement impossible.
The purpose of this document is to promote the goals of
the Policy on Civil Penalties by providing a framework for
medium-specific penalty policies. The Framework is detailed
enough to allow individual programs to develop policies that
will consistently further the Agency's goals and be easy to
administer. In addition, it is general enough to allow each
program to tailor the policy to the relevant statutory provi-
sions and the particular priorities of each program.
While this document contains detailed guidance, it is not
cast in absolute 'terms. Nevertheless, the policy does not
encourage deviation from this guidance in either the development
of medium-specific policies or in developing actual penalty
figures. Where there are deviations in developing medium-
specific policies, the reasons for those changes must be
recorded in the actual policy. Where there are deviations from
medium-specific- policies in calculating a penalty figure, the
case development team must detail the reasons for those changes
in the case file. In addition, the rationale behind the deviations
must be incorporated in the memorandum accompanying the settlement
package to Headquarters or the appropriate Regional official.
This document is divided into two sections. The first one
gives brief instructions to the user on how to write a medium-
specific policy. The second section is an appendix that gives
detailed guidance on implementing each section of the instruc-
tions and explains how the instructions are intended to further
the goals of the policy.
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Writing a Program Specific Policy
Summarized below are those elements that should be present
in a program-specific penalty policy. For a detailed discus-
sion of each of these ideas, the corresponding portions of the
appendix should be consulted.
-r
I. Developing a Penalty Figure
The development of a penalty figure is a two step process.
First the case development team must calculate a preliminary
deterrence figure. This figure is composed of the economic
benefit component (where applicable) and the gravity component.
The second step is to adjust the preliminary deterrence figure
through a number of factors. The resulting penalty figure is
the initial penalty target figure. . In judicial actions, the
initial penalty target figure is the penalty amount which the
government normally sets as a goal at the outset of settlement
negotiations. It is essentially an internal settlement goal and
should not be revealed to the violator unless the case development
team feels it is appropriate. In administrative actions, this
figure generally is the penalty assessed in the complaint.
While in judicial actions, the government's complaint will request
the maximum penalty authorized by law.
This initial penalty target figure may be further adjusted
in the course of negotiations. Each policy should ensure that
the penalty assessed or requested is within any applicable
statutory constraints, based upon the number and duration of
violations at issue.
II. Calculating a Preliminary Deterrence Amount
Each program-specific policy must contain a section on
calculating the preliminary deterrence figure. That section
should contain materials on each of the following areas:
° Benefit Component. This section should
explain:
a. the relevent measure of economic benefit
for various types of violations,
b. the information needed,
c. where to get assistance in computing
this figure and
d. how to use available computer systems
to compare a case with similar previous
violations.
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3
0 Gravity Component. This section should first
rank different types of violations according
to the seriousness of the act. In creating
that ranking, the"following factors'should be
considered:
a. actual or possible harm,
b. importance to the regulatory
scheme and .'-f-
c. availability of data from other
sources.
In evaluating actual or possible harm, your scheme should
consider the following facts:
0 amount of pollutant,
0 toxicity of pollutant,
0 sensitivity of the environment,
0 length of time of a violation and
0 size of the violator.
The policy then should assign appropriate dollar amounts
or ranges of amounts to the different ranked violations to
constitute the "gravity component". This amount, added to the
amount reflecting economic benefit, constitutes the preliminary
deterrence figure.
Ill. Adjusting the Preliminary Deterrence Amount to Derive the
Initial Penalty Target Figure (Prenegotiation Adjustment)
Each program-specific penalty .policy should give detailed
guidance on applying the appropriate adjustments to the pre-
liminary deterrence figure. This is to ensure that penalties also
further Agency goals besides deterrence (i.e. equity and swift
correction of environmental problems). Those guidelines should
be consistent with the approach described in the appendix. The
factors may be separated according to whether they can be con-
sidered before or after negotiation has begun or both.
Adjustments (increases or decreases, as appropriate) that
can be made to the preliminary deterrence penalty to develop an
initial penaly target to use at the outset of negotiation include:
0 Degree of willfulness and/or negligence
0 Cooperation/noncooperation through pre-
settlement action.
0 History of noncompliance.
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0 Ability to pay.
0 Other unique factors (including strength of
case, competing public policy considerations).
The policy may permit consideration of the violator's ability
to pay as an adjustment factor before negotiations begin. ' It
may also postpone consideration of that factor until after negoti-
ations have begun. This would allow the''violator to produce
evidence substantiating its inability to pay.
The policy should prescribe appropriate amounts, or ranges
of amounts, by which the preliminary deterrence penalty should
be adjusted. Adjustments will depend on the extent to which
certain factors are pertinent. In order to preserve the penalty's
deterrent effect, the policy should also ensure that, except for
the specific exceptions described in this document, the adjusted
penalty will: 1) always remove any 'significant economic benefit
of noncompliance and 2) contain some non-trivial amount as a
gravity component.
IV. Adjusting the Initial Penalty Target During Negotiations
Each program-specific policy should call for periodic reas-
sessment of these adjustments during the course of negotiations.
This would occur as additional relevant information becomes avail-
able and the old evidence is re-evaluated in the light of new
evidence. Once negotiations have begun, the policy also should
permit adjustment of the penalty target to reflect "alternative
payments" the violator agrees to make 'in settlement of the case.
Adjustments for alternative payments and pre-settlement corrective
action are generally permissible only before litigation has
begun.
Again, the policy should be structured to ensure that any
settlement made after negotiations have begun reflects the
economic benefit of noncompliance up to the date of compliance
plus some non-trivial gravity component. This means that if
lengthy settlement negotiations cau'se the violation to continue
longer than initially anticipated, the penalty target figure
should be increased. The increase would be based upon the extent
that the violations continue to produce ongoing environmental
risk and increasing economic benefit.
Use of the Policy In Litigation
Each program-specific policy should contain a section on
the use of the policy in litigation. Requests for penalties
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should account for all the factors identified in the relevant
statute and still allow for compromises in settlement without
exceeding the parameters outlined in this document. (For each
program, all the statutory factors are contained in the Frame-
work either explicitly or as part of broader factors.) For admin-
istrative proceedings, the policy should explain how to formulate
a penalty figure, consistent with the policy. The case develop-
ment team will put this figure in the administrative complaint.
In judicial actions, the EPA will use^the initial penalty
target figure as its first settlement goal'. This settlement
goal is an internal target and should not be revealed to the
violator unless the case development team feels it is appro-
priate. In judicial litigation, the government should request
the maximum penalty authorized by law in its complaint. The
policy should also explain how it and any applicable precedents'
should be used in responding to any explicit requests from a
court for a minimum assesment which the Agency would deem
appropriate.
Use of the Policy as a Feedback Device
Each program-specific policy should first explain in detail
what information needs to be put into the case file and into the
relevant computer tracking system. Furthermore, each policy
should cover how to use that system to examine penalty assessments
in other cases. This would thereby assist the Agency in making
judgments about the size of adjustments to the penalty for the
case at hand. Each policy should also explain how to present
penalty calculations in litigation reports.
Courtney M. Price
Assistant Administrator for
Enforcement and Compliance Monitoring
Attachment
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APPENDIX
Introduction
This appendix contains three sections. The first two sections
set out guidelines for achieving the goals of the Policy on Civil
Penalties. The first section focuses on achieving deterrence by
assuring that the penalty first removes -syr\y economic benefit from
noncompliance. Then it adds an amount to the penalty which reflects
the seriousness of the violation. The second section provides
adjustment factors so that both a fair and equitable penalty will
result and that there will be a swift resolution of the environmental
problem. The third section of the framework presents some practical
advice on the use of the penalty figures generated by the policy.
The Preliminary Deterrence Amount .
The Policy on Civil Penalties establishes deterrence as an
important goal of penalty assessment. More specifically, it speci-
fies that any penalty should, at a minimum, remove any significant
benefits resulting from noncompliance. In addition, it should
include an amount beyond removal of economic benefit to reflect
the seriousness of the violation. That portion of the penalty
which removes the economic benefit of noncompliance is referred to
as the "benefit component;" that part of the penalty which reflects
the seriousness of the violation is referred to as the "gravity
component." When combined, these two components yield the "prelim-
inary deterrence amount."
This section of the document .provides guidelines for calcu-
lating the benefit component and the gravity component. It will
also present and discuss a simplified version of the economic
benefit calculation for use in developing quick penalty deter-
minations. This section will also discuss the limited circum-
stances which justify settling for less than the benefit component.
The uses of the preliminary deterrence amount will be explained
in subsequent portions of this document.
I. The Benefit Component
In order to ensure that penalties remove any significant
economic benefit of noncompliance, it is necessary to have
reliable methods to calculate that benefit. The existence of
reliable methods also strengthens the Agency's position in both
litigation and negotiation. This section sets out guidelines for
computing the benefit component. It first addresses costs which
are delayed by noncompliance. Then it addresses costs which are
avoided completely by noncompliance. It also identifies issues
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-7-
to be considered when computing the benefit component for those
violations where the benefit of noncompliance results from factors
other than cost savings. This section concludes with a discussion
of the proper use of the benefit component in developing penalty
figures and in settlement negotiations.
A. Benefit
from
delaved costs
In many instances, the economic advantage to be derived from
noncompliance is the ability to delay making the expenditures
necessary to achieve compliance. For example, a facility which
fails to construct required settling ponds will eventually have to
spend the money needed to build those ponds in order to achieve
compliance. But, by deferring these one-time nonrecurring costs
until EPA or a State takes an enforcement action, that facility
has achieved an economic benefit. Among the types of violations
which result in savings from deferred cost are the following:
0 Failure to install equipment needed to meet
discharge or emission control standards.
0 Failure to effect process changes needed
to eliminate pollutants from products or
waste streams.
Testing violations, where the testing still
must be done to demonstrate achieved com-
pliance .
Improper disposal, where proper disposal is
still required to achieve compliance.
Improper storage where proper storage is still
required to achieve compliance.
to obtain necessary permits for dis-
permits would probably be
.e avoided cost for many
negligible, there are pro-
permit process can be
Failure
charge, where such _.
granted. (While the avoided
j _
programs would be
grams where the the
expensive).
The Agency has a substantial amount o
the air and water programs in calculating
that results from delaying costs necessary
This experience indicates that it is possible
benefit of delayed compliance through the use
Specifically, the economic benefit of delayed
estimated at: 5% per year of the delayed one-time capital cost
for the period from the date the violation began until the date
f experience under
the economic benefit
to achieve compliance.
to estimate the
of a simple formula
compliance may be
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compliance was or is expected to be achieved. This will be
referred to as the "rule of thumb for delayed compliance" method.
Each program may adopt its own "rule of thumb" if appropriate.
The applicable medium-specifric guidance should state what that
method is.
The rule of thumb method can usually be used in making
decisions on whether to develop a case or in setting a penalty
target for settlement negotiations. Infusing this rule of thumb
method in settlement negotiations, the Agency may want to make
the violator fully aware that it is using an estimate and not
a more precise penalty determination procedure. The decision
whether to reveal this information is up to the negotiators.
The "rule of thumb" method only provides a first-cut estimate
of the benefit of delayed compliance. For this reason, its use
is probably inappropriate in situations where a detailed analysis
of the 'economic effect of noncompliance is needed to support or
defend the Agency's position. Accordingly, this "rule of thumb"
method generally should not be used in'any of the following cir-
cumstances:
0 A hearing is likely on the amount of the
penalty.
0 The defendant wishes to negotiate over the
amount of the economic benefit on the basis
of factors unique to the financial condition
of the company.
0 The case development team has reason to
bel.ieve it will produce a substantially
inaccurate estimate; for example, where the
defendant is in a highly unusual financial
position, or where noncompliance has or will
continue for an unusually long period.
There usually are avoided costs associated with this type
of situation. Therefore, the "rule of thumb for avoided costs"
should also be applied. (See pages 9-10). For most cases, both
figures are needed to yield the major portion of the economic
benefit component.
When the rule of thumb method is not applicable, the economic
benefit of delayed compliance should be computed using the Meth
odology for Computing the Economic Benefit of Noncompliance.
This document, which is under development, provides a method
for computing the economic benefit of noncompliance based on a
detailed economic analysis. The method will largely be a refined
version of the method used in the previous Civil Penalty Policy
issued July 8, 1980, for the Clean Water Act and Title I of the
Clean Air Act. It will also be consistent with the regulations
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implementing Section 120 of the Clean Air Act. A computer
program will be available to the Regions to perform the analysis,
together with instructions for its use. Until the Methodology
is issued, the economic model contained in the July 8, 1980,
Civil Penalty Policy should be used. It should be noted that
the Agency recently modified this guidance to reflect changes in
the tax law.
B. Benefit from avoided costs . \f-
Many kinds of violations enable a violator to permanently
avoid certain costs associated with compliance.
0 Cost savings for operation and maintenance of
equipment that the violator failed to install.
0 Failure to properly operate and maintain
existing control equipment.
0 Failure to employ sufficient number of
adequately trained staff;
0 Failure to establish or follow precautionary
methods required by regulations or permits.
0 Improper storage, where commercial storage is
reasonably available.
0 Improper disposal, where redisposal or cleanup
is not possible.
0 Process, operational, or maintenance savings
from removing pollution equipment.
0 Failure to conduct necessary testing.
As with the benefit from delayed costs, the benefit com-
ponent for avoided costs may be estimated by another "rule of
thumb" method. Since these costs will never be incurred, the
estimate is the expenses avoided until the date compliance is
achieved less any tax savings. The use of this "rule of thumb"
method is subject to the same limitations as those discussed in
the preceding section.
Where the "rule of thumb for avoided costs" method cannot
be used, the benefit from avoided costs must be computed using
the Methodology for Computing the Economic Benefit of Ncncom-
pliance. Again, until the Metnolology is issued, the method
contained in the July 8, 1980, Civil Penalty Policy should be
used as modified to reflect recent changes in the tax law.
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C. Benefit from competitive advantage
For most violations, removing the savings which accrue
from noncompliance will usually be sufficient to remove the
competitive advantage the violator clearly has gained from
noncompliance. But there are some situations in which noncom-
pliance allows the violator to provide goods or services which
are not available elsewhere or are more attractive to the
consumer. Examples of such violations irrelude:
0 Selling banned products,
0 Selling products for banned uses.
0 Selling products without required labelling
or warnings.
0 Removing or altering pollution control
equipment for a fee, (e.g., tampering with
automobile emission controls.)
0 Selling products without required regula-
tory clearance, (e.g., pesticide registra-
tion or premanufacture notice under TSCA.)
To adequately remove the economic incentive for such viola-
tions, it is helpful to estimate the net profits made from the
improper transactions (i.e. those transactions which would not
have occurred if the party had complied). The case development
team is responsible for identifying violations in which this
element of economic benefit clearly is present and significant.
This calculation' may be substantially different depending on the
type of violation. Consequently the program-specific policies
should contain guidance on identifying these types of violations
and estimating these profits. In formulating that guidance, the
following principles should be followed:
0 The amount of the profit should be based on
the best information available concerning
the number of transactions resulting from
noncompliance.
0 Where available, information about the
average profit per transaction may be used.
In some cases, this may be available from
the rulemaking record of the provision
violated.
0 The benefit derived should be adjusted to
reflect the present value of net profits
derived in the past.
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lt is recognized that the methods developed for estimating ,
the profit from those transactions will sometimes rely substan-
tially on expertise rather than verifiable data. Nevertheless,
the programs should make all reasonable efforts to ensure that
the estimates developed are def-ensible. The programs are encour-
aged to work with the Office of Policy, Planning and Evaluation
to ensure that the methods developed are consistent with the
forthcoming Methodology for Computing the Economic Benefit of
Noncompliance and with methods developed by other programs. The
programs should also ensure that sufficient, contract funds are
available to obtain expert advice in this area as needed to
support penalty development, negotiation and trial of these kinds
of cases.
D. Settling cases for an amount less than the economic .
benefit
As noted above, settling for an amount which does not remove
the economic benefit of noncompliance can encourage people to
wait until EPA or the State begins an enforcement action before
complying. For this reason, it is general Agency policy not to
settle for less than this amount. There are three general areas
where settling for less than economic benefit may be appropriate.
But in any individual case where the Agency decides to settle for
less than enconomic benefit, the case development team must detail
those reasons in the case file and in any memoranda accompanying
the settlement.
1. Benefit component involves insignificant amount
It is clear that assessing the benefit component and
negotiating over it will often represent a substantial commitment
of resources. Such a commitment of resources may not be'warranted
in cases where the magnitude of the''benefit component is not likely
to be significant, (e.g. not likely to have a substantial impact on
the violator's competitive positions). For this reason, the case
development team has the discretion not to seek the benefit com-
ponent where it appears that the amount of that component is
likely to be less than $10,000. (A program may determine that
other cut-off points are more reasonable based on the likelihood
that retaining the benefit could encourage noncomplying behavior.)
In exercising that discretion, the case development team should
consider the following factors:
0 Impact on violator: The likelihood that
assessing the benefit component as part
of the penalty will have a noticeable
effect on the violator's competitive
position or overall profits. If no such
effect appears likely, the benefit com-
ponent should probably not be pursued.
° The size of the gravity component: If the
gravit component is relatively small, it
.Tiay provide a sufficient deterrent, by
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itself, to achieve the goals o£ this policy.
° The certainty o£ the size of the benefit
component: If the economic benefit is quite
well defined, it is. not likely to require
as much effort to seek to include it in the
penalty assessment. Such circumstances also
increase the likelihood that the economic
benefit was a substantial motivation for the
noncompliance. This would make the inclusion
of the benefit component more "'necessary to
achieve specific deterrence.
It may be appropriate not to seek the benefit component in
an entire class of violation. In that situation, the rationale
behind that approach should be clearly stated in the appropriate
medium-specific policy. For example, the most appropriate way
to handle a small non-recurring operation and maintenance vio-
lation may be a small penalty. Obviously it makes little sense
to assess in detail the economic benefit for each individual
violation because the benefit is likely to be so small. The
medium-specific policy would state this as the.rationale.
2. Compelling public concerns
The Agency recognizes that there may be some instances where
there are compelling public concerns that would not be served by
taking a case to trial. In such instances, it may become necessary
to consider settling a case for less than the benefit component.
This may be done only if it is absolutely necessary to preserve
the countervailing public interests. Such settlements might be
appropriate where the following circumstances occur:
0 There is a very substantial risk of creating
precedent which will have a significant
adverse effect upon the Agency's ability
to enforce the law or clean up pollution
if the case is taken to trial.
0 Settlement will avoid or terminate an
imminent risk to human health or the
environment. This is art adequate
justification only if injunctive relief
is unavailable for some reason, and if
settlement on remedial responsibilities
could not be reached independent of any
settlement of civil penalty liability.
0 Removal of the economic benefit would
result in plant closings, bankruptcy, or
other extreme financial burden, and there
is an important public interest in allow-
ing the firm to continue in business.
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Alternative payment plans should be fully
explored before resorting to this option.
Otherwise, the Agency will give the per-
ception that shirking one's environmental
responsibilities -is a way to keep a- failing
enterprise afloat. This exemption does not
apply to situations where the plant was
likely to close anyway, or where there is a
likelihood of continued harmful noncompliance.
3. Litigation practicalities
The Agency realizes that in certain cases, it is highly unlikely
the EPA will be able to recover the economic benefit in litigation.
This may be due to applicable precedent, competing public interest
considerations, or the specific facts, equities, or evidentiary
issues pertaining to a particular case. In such a situation it is
unrealistic to expect EPA to obtain a penalty in litigation which
would remove 'the economic benefit. The case development team then
may pursue a lower penalty amount.
II. The Gravity Component
As noted above, the Policy on Civil Pena_lties_ specifies that
a penalty, to achieve deterrence, should not only remove any eco-
nomic benefit of noncompliance, but also include an amount reflecting
the seriousness of the violation. This latter amount is referred
to as the "gravity component." The purpose of this section of the
document is to establish an approach to quantifying the gravity
component. This approach can encompass the differences between
programs and still provide the basis for a sound consistent treat-
ment of this issue.
A. Quantifying the gravity of a violation
Assigning a dollar figure to represent the gravity of a vio-
lation is an essentially subjective process. Nevertheless, the
relative seriousness of different violations can be fairly
accurately determined in most cases. This can be accomplished
by reference to the goals of the specific regulatory scheme and
the facts of each particular violation. Thus, linking the dollar
amount of the gravity component to these objective factors is a
useful way of insuring that violations of approximately equal
seriousness are treated the same way.
Such a linkage promotes consistency. This consistency
strengthens the Agency's position both in negotiation and before
a trier of fact. This approach consequently also encourages
swift resolution of environmental problems.
Each program must develop a system for quantifying the
gravity of violations of the laws and regulations it administers.
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This development must occur within the context of the penalty
amounts authorized by law for that program. That system must
be based, whenever possible, on objective indicators of the
seriousness of the violation. -Examples of such indicators are
given below. The seriousness of the violation should be based
primarily on: 1) the risk of harm inherent in the violation at
the time it was committed and 2) the actual harm that resulted
from the violation. In some cases, the seriousness of the
risk of harm will exceed that of the actual harm. Thus, each
system should provide enough flexibility to allow EPA to consider
both factors in assessing penalties.
Each system must also be designed to minimize the possi-
bility that two persons applying the system to the same set of.
facts would come up with substantially different numbers. Thus,
to the extent the system depends on categorizing events, those
categories must be clearly defined. That way there is little
possibility for argument over the category in which a violation
belongs. In addition, the categorization of the events relevant
to the penalty decision should be noted in the penalty develop-
ment portion of the case file.
B. Gravity Factors
In quantifying the gravity of a violation, a program-specific
policy should rank different types of violations according to the
seriousness of the act. The following is a suggested approach to
ranking the seriousness of violations. In this approach to rank-
ing, the following factors should be considered:
° Actual or possible harm: This factor
focu-ses on whether (and to what extent)
the activity of the defendant actually
resulted or was likely to result in an
unpermitted discharge or exposure.
° Importance to the regulatory scheme; This
factor focuses on the importance of the
requirement to achieving the goal of the
statute or regulation. For example, if
labelling is the only method used to pre-
vent dangerous exposure to a chemical,
then failure to label should result in a
relatively high penalty. By contrast, a
warning sign that was visibly posted but
was smaller than the required size would
not normally be considered as serious.
0 Availability of data from other sources:
The violation of any recordkeeping or
reporting requirement is a very serious
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matter. But if the involved requirement
is the only source of information, the
violation is far more serious. By contrast,
if the Agency has-another readily available
and cheap source for the necessary infor-
mation, a smaller penalty may be appro-
priate. (E.g. a customer of the violator
purchased all the violator's illegally
produced substance. Even though the
violator does not have the re'quired
records, the customer does.)
0 Size of violator; In some cases , the
gravity component should be increased
where it is clear that the resultant
penalty will otherwise have little
impact on the violator in light of the
risk of harm posed by the violation.
This factor is only relevant to the
extent it is not taken into account by
other factors.
The assessment of the first gravity factor listed above,
risk or harm arising from a violation, is a complex matter. For
purposes of ranking violations according to seriousness, it is
possible to distinguish violations within a category on the basis
of certain considerations, including the following:
° Amount of pollutant: Adjustments for the
concentration of the pollutant may be
appropriate, depending on the regulatory
scheme and the characteristics of the
pollutant. Such adjustments need not be
linear, especially if the pollutant can
be harmful at low concentrations.
0 Toxicity of the pollutant: Violations
involving highly toxic pollutants are more
serious and should result in relatively
larger penalties.
° Sensitivity of the environment; This
factor focuses on the location where the
violation was committed. For example,
improper discharge into waters near a
drinking water intake or a recreational
beach is usually more serious than dis-
charge into waters not near any such use.
° The length of time a violation continues:
In most circumstances, the longer a
violation continues uncorrected, the
grerter is the risk of harm.
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Although each program-specific policy should address each
of the factors listed above, or determine why it is not relevant,
the factors listed above are not meant to be exhaustive. The
programs should make every effort to identify all factors rele-
vant to assessing the seriousness of any violation. .The programs
should then systematically prescribe a dollar amount to yield a
gravity component for the penalty. 'The program-specific policies
may prescribe a dollar range for a certain category of violation
rather than a precise dollar amount wit'ni_a.. that range based on
the specific facts of an individual case.
The process by which the gravity component was computed must
be memorialized in the case file. Combining the benefit component
with the gravity component yields the preliminary deterrence amount
In some classes of cases, the normal gravity calculation may
be insufficient to effect general deterrence. This could happen
if there was extensive noncompliance with certain regulatory
programs in specific areas of the United States. This would
demonstrate that the normal penalty assessments had not been
achieving general deterrence. The medium specific policies should
address this issue. One possible approach would be to direct the
case development team to consider increasing the gravity component
within a certain range to achieve general deterrence. These extra
assessments should be consistent with the other goals of this
policy.
Initial and Adjusted Penalty Target Figure
The second goal of the Policy on Civil Penalties is the
equitable treatment of the regulated community. One important
mechanism for promoting equitable treatment is to include the
benefit component discussed above in a civil penalty assessment.
This approach would prevent violators from benefitting economi-
cally from their noncompliance relative to parties which have
complied with environmental requirements.
In addition, in order to promote equity, the system for
penalty assessment must have enough^flexibility to account for
the unique facts of each case. Yet it still must produce enough
consistent results to treat similarly-situated violators similarly.
This is accomplished by identifying many of the legitimate differ-
ences between cases and providing guidelines for how to adjust
the preliminary deterrence amount when those facts occur. The
application of these adjustments to the preliminary det'errence
amount prior to the commencement of negotiation yields the initial
penalty target figure. During the course of negotiation, the case
development team may further adjust this figure to yield the
adjusted penalty target figure.
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Nevertheless, it should be noted that equitable treatment is
a two-edged sword. While it means that a particular violator will
receive no higher penalty than a similarly situated violator, it
also means that the penalty wij.1 be no lower.
I. Flexibility-Adjustment Factors
The purpose of this section of the document is to establish
additional adjustment factors to promote "flexibility and to iden-
tify management techniques that will promote consistency. This
section sets out guidelines for adjusting penalties to account for
some factors that frequently distinguish different cases. Those
factors are: degree of willfulness and/or negligence, degree of
cooperation/noncooperation, history of noncompliance, ability to
pay, and other unique factors. Unless otherwise specified, these
adjustment factors will apply only to the gravity component and
not to the economic benefit component. Violators bear the burden
of justifying mitigation adjustments they propose based on these
factors.
Within each factor there are three suggested ranges of
adjustment. The actual ranges for each medium-specific policy
will be determined by those developing the policy. The actual
ranges may differ from these suggested ranges based upon program
specific needs. The first, typically a 0-20% adjustment of the
gravity component, is within the absolute discretion of the case
development team. £/ The second, typically a 21-30% adjustment,
is only appropriate in unusual circumstances. The third range,
typically beyond 30% adjustment, is only appropriate in extra-
ordinary circumstances. Adjustments in the latter two ranges,
unusual and extraordinary circumstances, will be subject to scrutiny
in any performance audit. The case- development tsam may wish to
reevaluate these adjustment factors as the negotiations progress.
This allows the team to reconsider evidence usjed as a basis for
the penalty in light of new information.
Where the Region develops the penalty figure, the appli-
cation of adjustment factors will be part of the planned Regional
audits. Headquarters will be responsible for proper application
of these factors in nationally-managed cases. A detailed dis-
cussion of these factors follows.
A. Degree of Willfulness and/or Negligence
Although most of the statutes which EPA administers are
strict liability statutes, this does not render the violator's
!_/ Absolute discretion means that the case development team
may make penalty development decisions independent of EPA
Headquarters. Nevertheless it is understood that in all
judicial matters, the Department of Justice can still review
these determinat >ns if they so desire. Of course the authority
to exercise th- . /.-.cy's concurrence in final settlements is
covered hv (-.h;> n:i.-\" ' -.--il-jlpi r. ^- ' .-.,1 A » i one
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willfulness and/or negligence irrelevant. Knowing or willful
violations can give rise to criminal liability, and the lack
of any culpability may, depending upon the particular program,
indicate that no penalty action is appropriate. Between these
two extremes, the willfulness and/or negligence of the violator
should be reflected in the amount of the penalty.
In assessing the degree of willfulness and/or negligence,
all of the following points should be considered in most cases:
0 How much control the violator had over the
events constituting the violation.
0 The forseeability of the events consti-
tuting the violation.
0 Whether the violator took reasonable
precautions against the events con-
stituting the violation.
0 Whether the violator knew or should have
known of the hazards associated with the
conduct.
0 The level of sophistication within the
industry in dealing with compliance issues
and/or the accessibility of appropriate
control technology (if this information is
readily available). This should be balanced
against the technology forcing nature of the
statute, where applicable.
0 Whether the violator in fact knew of the
legal requirement which was violated.
It should be noted that this last point, lack of knowledge
of the legal requirement, should never be used as a basis to
reduce the penalty. To do so would encourage ignorance of
the law. Rather, knowledge of the law should serve only to
enhance the penalty.
The amount of control which the violator had over how
quickly the violation was remedied is also relevent in certain
circumstances. Specifically, if correction of the environmental
problem was delayed by factors which the violator can clearly
show were not reasonably foreseeable and out of its control, the
penalty may be reduced.
The suggested approach for this factor is for the case
development team to have absolute discretion to adjust the
penalty up or down by 20% of the gravity component. Adjustments
in the +_ 21-30"' vange should only be made in unusual circumstances
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Adjustments for this factor beyond +_ 30% should be made only in-
extraordinary circumstances. Adjustments in the unusual or
extraordinary circumstance range will be subject to scrutiny in
any audit of performance.
B. Degree of Cooperation/Moncooperation
The degree of cooperation or noncooperation of the violator
in remedying the violation is an appropriate factor to consider in
adjusting the penalty. Such adjustments..^re mandated by both the
goals of equitable treatment and swift resolution of environmental
problems. There are three areas where this factor is relevant.
1. Prompt reporting of noncompliance
Cooperation can be manifested by the violator promptly
reporting its noncompliance. Assuming such self-reporting is not
required by law, such behavior should result in the mitigation of
any penalty.
The suggested ranges of adjustment are as follows. The case
development team has absolute discretion on a'ny adjustments up to
+_ 10% of the gravity component for.cooperation/noncooperation.
Adjustments can be made up to +_ 20% of the gravity component, but
only in unusual circumstances. In extraordinary circumstances,
such as self reporting of a TSCA premanufacture notice violation,
the case development team may adjust the penalty beyond the +_ 20%
factor. Adjustments .in the unusual or extraordinary circumstances
ranges will be subject to scrutiny in any performance audit.
2. Prompt correction of environmental problems
The Agency should provide incentives for the violator to
commit to correcting the problem promptly. This correction must
take place before litigation is begun, except in extraordinary
circumstances.£/ But since these incentives must b.a consistent
with deterrence, they must be used' judiciously.
2/ For the purposes of this document, litigation is deemed to
begin:
0 for administrative actions - when the
respondent files a response to an adminis-
trative complaint or when the time to
file expires or
0 for judicial actions - when an Assistant
United States Attorney files a com-
plaint in court.
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The circumstances under which the penalty is reduced depend
on the type of violation involved and the source's response to
the problem. A straightforward reduction in the amount of the
gravity component of the penalty is most appropriate in those
cases where either: 1) the environmental problem is actually cor-
rected prior to initiating litigation, or 2) ideally, immediately
upon discovery of the violation. Under this approach, the reduction
typically should be a substantial portion of the unadjusted gravity
component. _;r
In general, the earlier the violator instituted corrective
action after discovery of the violation and the more complete
the corrective action instituted, the larger the penalty
reduction EPA will consider. At the discretion of the case
development team, the unadjusted gravity component may be
reduced up to 50%. This would depend on how long the environ-
mental problem continued before correction and the amount of any
environmental damage. Adjustments greater than 50% are permitted,
but will be the subject of close scrutiny in auditing performance.
It should be noted that in some -instances, the violator
will take all necessary steps toward correcting the problem but
may refuse to reach any agreement on penalties. Similarly, a
violator may take some steps to ameliorate the problem, but
choose to litigate over what constitutes compliance. In such
cases, the gravity component of the penalty may be reduced up
to 25% at the discretion of the case development team. This
smaller adjustment still recognizes the efforts made to correct
the environmental problem, but the benefit to the source is not
as great as if a complete settlement is reached. Adjustments
greater than 25% are permitted, but will be the subject of close
scrutiny in auditing performance.
In all instances, the facts and rationale justifying the
penalty reduction must be recorded in the case file and in-
cluded in any memoranda accompanying settlement.
3. Delaying compliance
Swift resolution of environmental problems will be encour-
aged if the violator clearly sees that it will be financially
disadvantageous for the violator to litigate without remedying
noncompliance. The settlement terms described in the preceding
section are only available to parties who take steps to correct a
problem prior to initiation of litigation. To some extent, this
is an incentive to comply as soon as possible. Nevertheless, once
litigation has commenced, it should be clear that the defendant
litiaates at its own risk.
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In addition, the methods for computing the benefit component
and the gravity component are both structured so that the penalty
target increases the longer the violation remains uncorrected.
The larger penalty for longer noncompliance is systematically
linked to the benefits accruing to the violator and to the con-
tinuing risk to. human health and the environment. This occurs
even after litigation has commenced. This linkage will put the
Agency in a strong position to convince fehre trier of fact to
impose such larger penalties. For these reasons, the Policy
on Civil Penalties provides substantial disincentives to litigat-
ing without complying.
C. History of noncompliance
Where a party has violated a similar environmental require-
ment before, this is usually clear evidence that the party was
not deterred by the Agency's previous enforcement response.
Unless the previous violation was caused by factors entirely out
of the control of the violator, this is an indication that the
penalty should be adjusted upwards.
In deciding how large these adjustments should be, the case
development team should consider the following points:
0 How similar the previous violation was.
0 How recent the previous violation was.
0 The number of previous violations.
° Violator's response to previous violation(s)
in regard to correction of the previous
problem.
Detailed criteria for what constitutes a "similar violation"
should be contained in each program-specific policy. Neverthe-
less a violation should generally be considered "similar" if the
Agency's previous enforcement response should have alerted the
party to a particular type of compl-iance problem. Some facts
that indicate a "similar violation" was committed are as follows:
0 The same permit was violated.
0 The same substance was involved.
0 The same process points were the source
of the violation.
0 The same statutory or regulatory provision
was violated.
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0 A similar act or omission (e.g. the failure
to properly store chemicals) was the basis
of the violation.
For purposes of this section, a "prior violation" includes
any act or omission for which a formal enforcement response has
occurred (e.g. notice of violation, warning letter, complaint,
consent decree, consent agreement, or final order). It also
includes any act or omission for which the violator has pre-
viously been given written notification, however informal, that
the Agency believes a violation exists. ''
In the case of large corporations with many divisions or
wholly-owned subsidiaries, it is sometimes difficult to deter-
mine whether a previous instance of noncompliance should trigger
the adjustments described in this section. New ownership often
raises similar problems. In making this determination, the case
development team should ascertain who in the organization had .
control and oversight responsibility for the conduct resulting
in the violation. In some situations the same persons or the
same organizational unit had or reasonably should have had
control or oversight responsibility for violative conduct. In
those cases, the violation will be considered part of the com-
pliance history of that regulated party.
In general, the case development team should begin with
the assumption that if the same corporation was involved, the
adjustments for history of noncompliance should apply. In
addition, the case development team should be wary of a party
changing operators or shifting responsibility for compliance to
different groups as a way of avoiding increased penalties. The
Agency may find a consistent pattern-of noncompliance by many
divisions or subsidiaries of a corporation even though the
facilities are at different geographic locations. This often
reflects, at best, a corporate-wide indifference to environmental
protection. Consequently, the adjustment for history of noncom-
pliance should probably apply unless the violator can demonstrate
that the other violating corporate facilities are independent.
The following are the Framework's suggested adjustment
ranges. If the pattern is one of "dissimilar" violations,
relatively few in number, the case development team has absolute
discretion to raise the penalty amount by 35%. For a relatively
large number of dissimilar violations, the gravity component can
be increased up to 70%. If the pattern is one of "similar"
violations, the case development team has absolute discretion to
raise the penalty amount up to 35% for the first repeat violation,
and up to 70% for further repeated similar violations. The case
development team may make higher adjustments in extraordinary
circumstances, -but such adjustments will be subject to scrutiny
in any performance audit.
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D. Ability to pay
The Agency will generally not request penalties that are
clearly beyond the means of the violator. Therefore EPA should
consider the ability to pay a penalty in arriving at a specific
final penalty assessment. At the same time, it is important
that the regulated community not see the violation of environ-
mental requirements as a way of aiding a financially troubled
business. EPA reserves the option, in appropriate circumstances,
of seeking a penalty that might put a company out of business.
For example, it is unlikely that EPA would reduce a penalty
where a facility refuses to correct a serious violation. The same
could be said for a violator with a long history of previous vio-
lations. That long history would demonstrate that less severe
measures are ineffective.
The financial ability adjustment will normally require a
significant amount of financial information specific to the
violator. If this information is available prior to commence-
ment of negotiations, it should be assessed as part of the
initial penalty target figure. If it. is not available, the
case development team should assess this factor after commence-
ment of negotiation with the source.
The burden to demonstrate inability to pay, as with the
burden of demonstrating the presence of any mitigating circum-
stances, rests on the defendant. If the violator fails to
provide sufficient information, then the case development team
should disregard this factor in adjusting the penalty. The
National Enforcement Investigations Center (NEIC) has developed
the capability to assist the Regions in determining a firm's
ability to pay. Further information on this system will be made
available shortly under separate cover.
When it is determined that a violator cannot afford the
penalty prescribed by this policy, the following options should
be considered:
0 Consider a delayed payment schedule: Such a
schedule might even be contingent upon an
increase in sales or some other indicator of
improved business. This approach is a real
burden on the Agency and should only be
considered on rare occasions.
i
° Consider non-monetary alternatives, such as
public service activities; For example, in
the mobile source program, fleet operators
who tampered with pollution control devices
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-24-
on their vehicles agreed to display anti-
tamper ing ads on their vehicles. Similar
solutions may be possible in other industries.
° Consider straight -penalty reductions' as a last
recourse; If this approach is necessary, the
reasons for the case development team's
conclusion as to the size of the necessary
reduction should be made a part of the formal
enforcement file and the memorandum accompany-
ing the settlement. V
° Consider joinder of the violator's individual
owners; This is appropriate if joinder is
legally possible and justified under the
circumstances.
Regardless of the Agency's determination of an appropriate
penalty amount to pursue based on ability to pay considerations,
the violator is still expected to comply with the law.
E. Other unique factors
Individual programs may be able to predict other factors
that can be expected to affect the appropriate penalty amount.
Those factors should be identified and guidelines for their use
set out in the program-specific policies. Nevertheless, each
policy should allow for adjustment for unanticipated factors
which might affect the penalty in each case.
It is suggested that there be absolute discretion to adjust
penalties up or down by 10% of the gravity component for such
reasons. Adjustments beyond the absolute discretion range will
be subject to scrutiny during audits. In addition, they will
primarily be allowed for compelling public policy concerns or the
strengths and equities of the case. The rationale for the reduction
must be expressed in writing in the case file and in any memoranda
accompanying the settlement. See the discussion on pages 12 and
13 for further specifics on adjustments appropriate on the basis
of either compelling public policy concerns or the strengths and
eauities of the case.
II. Alternative Payments
In the past, the Agency has accepted various environmentally
beneficial expenditures in settlement of a case and chosen not to
_3/ If a firm fails to pay the agreed-to penalty in an adminis-
trative or judicial final order, then the Agency must follow
the Federal Claims Collection Act procedures for obtaining the
penalty amount.
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pursue more severe penalties. In general, the regulated community
has been very receptive to this practice. In many cases,
violators have found "alternative payments" to be more attrac-
tive than a traditional penalty. Many useful projects have been
accomplished with such funds. But in some instances, EPA has
accepted for credit certain expenditures whose actual environ-
mental benefit has been somewhat speculative.
The Agency believes that these alternative payment projects
should be reserved as an incentive to settlement before litigation,
For-this reason, such arrangements will be allowed only in preliti-
gation agreements except in extraordinary circumstances.
In addition, the acceptance of alternative payments for
environmentally beneficial expenditures is subject to certain
conditions. The Agency has designed these conditions to prevent
the abuse of this procedure. Most of the conditions below applied
in the past, but some are new. All of these conditions must be
met before alternative payments may be accepted :_V
0 No credits can be given for activities
that currently are or will be required
under current law or are likely to be re-
quired under existing statutory authority
in the forseeable future (e.g., through
upcoming rulemaking).
0 The majority of the project's environmental
benefit should accrue to the general public
rather than to the source or any particular
governmental unit.
° The project cannot be something which the
violator could reasonably be expected to do
as part of sound business practices.
_4_/ In extraordinary circumstances, the Agency may choose not to
pursue higher penalties for "alternative" work done prior to
commencement of negotiations. For example, a firm may recall a
product found to be in violation despite the fact that such
recall is not required. In order for EPA to forgo seeking
higher penalties, the violator must prove that it has met the
other conditions herein stated. If the violator fails to prove
this in a satisfactory manner, the case development team has the
discretion to completely disallow the credit project. As with
all alternative projects, the case development team has the dis-
cretion to still pursue some penalties in settlement.
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26-
0 EPA must not lower the amount it decides
to accept in penalties by more than the
after-tax amount the violator spends on
the project.£/
In all cases where alternative payments are allowed, the
case file should contain documentation showing that each of
the conditions listed above have been met in that particular
case. In addition when considering penalty credits, Agency
negotiators should take into account the following points:
0 The project should not require a large
amount of EPA oversight for its comple-
tion. In general the less oversight
the proposed credit project would
require from EPA to ensure proper
completion, the more receptive EPA
can be toward accepting the project
in settlement.
0 The project should receive stronger
consideration if it will result in the
abatement of existing pollution,
ameliorate the pollution problem that
is the basis of the government's claim
and involve an activity that could be
ordered by a judge as equitable relief.
0 The project should receive stronger
consideration if undertaken at the
facility where the violation took place.
0 The company should agree that any publicity
it disseminates regarding its funding of
the project must include a statement that
such funding is in settlement of a lawsuit
brought by EPA or the State.
_5/ This limitation does not apply to public awareness activities
such as those employed for fuel switching and tampering violations
under the Clean Air Act. The purpose of the limitation is to
preserve the deterrent value of the settlement. But these viola-
tions are often the result of public misconceptions about the
economic value of these violations. Consequently, the public
awareness activities can be effective in preventing others from
violating the law. Thus, the high general deterrent value of
public awareness activities in these circumstances obviates the
need for the one-to-one requirement on penalty credits.
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Each alternative payment plan must entail an identified
project to be completely performed by the defendant. Under the
plan, EPA must not hold any funds which are to be spent at EPA's
discretion unless the relevant-statute specifically provides
that authority. The final order, decree or judgment should
state what financial penalty the violator is actually paying and
describe as precisely as possible the credit project the violator
is expected to perform.
-f
III. Promoting Consistency
Treating similar situations in a similar fashion is central
to the credibility of EPA's enforcement effort and to the success
of achieving the goal of equi'table treatment. This document has
established several mechanisms to promote such consistency. Yet
it still leaves enough flexibility for settlement and for tailor-
ing the penalty to particular circumstances. Perhaps the most
important mechanisms for achieving consistency are the systematic
methods for calculating the benefit component and gravity compo-
nent of the penalty. Together, they add up to the preliminary
deterrence amount. The document also sets out guidance on uniform
approaches for applying adjustment factors to arrive at an initial
penalty target prior to beginning settlement negotiations or an
adjusted penalty target after negotiations have begun.
Nevertheless, if the Agency is to promote consistency, it
is essential that each case file contain a complete description
of how each penalty was developed. This description should cover
how the preliminary deterrence amount was calculated and any
adjustments made to the preliminary deterrence amount. It should
also describe the. facts and reasons which support such adjustments.
Only through such complete documentation can enforcement attorneys,
program staff and their managers learn from each others' experience
and promote the fairness required by the Policy on Civil Penalties.
To facilitate the use of this information, Office of Legal
and Enforcement Policy will pursue integration of penalty infor-
mation from judicial enforcement actions into a computer system.
Both Headquarters and all Regional offices will have access to
the system through terminals. This~would make it possible for
the Regions to compare the handling of their cases with those of
other Regions. It could potentially allow the Regions, as well
as Headquarters, to learn from each others' experience and to
identify problem areas where policy change or further guidance
is needed.
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Use of Penalty Figure in Settlement Discussions
The Policy and Framework do not seek to constrain negotiations,
Their goal is to set settlement" target figures for the internal
use of Agency negotiators. Consequently, the penalty figures
under negotiation do not necessarily have to be as low as the
internal target figures. Nevertheless, the final settlement
figures should go no lower than the internal target figures unless
either: 1) the medium-specific penalty policy so provides or
2) the reasons for the deviation are properly documented.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. DC 204*0
NOV 2 I I2S3
KNPOMCKMKMT COUMSKL.
MEMORANDUM
SUBJECT:
FROM:
TO:
Guidance Concerning Compliance with the Jencks Act
with
\^
Courtney M. PricJUo-
Assistant Administrator ()
Office of Enforcement and Compliance Monitoring
Assistant Administrators
Regional Administrators
Regional Counsels
Associate Enforcement Counsels
Director, NEIC
Background
The Jencks Act (18 U.S.C. §3500) provides that in a
federal criminal prosecution, after a witness called by the
United States has testified on direct examination, the court,
on motion of the defendant, shall order the United States to
produce any "statement", as defined in the Act, in the
possession of the United States that relates to the subject
matter as to which the witness has testified. Any witness
called by the United States is subject to the Jencks Act.
Therefore, the 'statements* of environmental engineers,
technicians, laboratory personnel, criminal investigators,
inspectors, and EPA lawyers may be ordered turned over to
the defense if any of these individuals testifies for the
Government. The need for a complete understanding of the
requirements of the Jencks Act, by all EPA personnel, can-
not be underestimated. The identity of government witnesses
cannot be accurately predicted in advance, and the sanctions
for losing, destroying or misplacing "Jencks Act material"
can be severe.
t
The Act (the text of which is set forth in Appendix A)
has- generated a considerable amount of case law. Litigation
has mainly concerned questions as to what is a "statement"
and what sanctions should be imposed should the Government
fail to produce Jencks Act material. This memorandum will
discuss these points and the procedures which must be used
to preserve the material.
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Issue
What written materials will be considered "statements"
subject to production to the defense during the course of
criminal litigation?
*'
Discussion
A "statement" is defined in part in 18 D.S.C. §3500(e)
as (D a written statement made by the witness and signed or
otherwise adopted or approved by him; or (2) a stenographic,
mechanical, electrical, or other recording, or a transcription
thereof, which is a substantially verbatim recital of an oral
statement made by the witness and recorded contemporaneously
with the making of such oral statement.
*(e)(l) Statements"; Under subsection (e)(l), a written
statement can be a report written by an agent and adopted by
the witness. That is, if an agent writes up a report and
either reads it back to the witness or lets the witness read
it and then has the witness, in writing or orally, approve
what has been written, then the witness has "adopted" the
statement and it becomes the witness's statement. This
statement or report does not have to be written at the time
of the interview of the witness. If an agent talks to a wit-
ness, types up a report a few days later and shows the report
to the witness who approves it, it is an "(e)(l) statement"
of the witness. A document written by a witness, whether
signed or unsigned, is also a statement and, if turned over
to an agent, must be, retained as Jencks Act material.
Criminal investigators or agents intentionally obtaining
statements from potential witnesses are not the only EPA
personnel who may create "(e)(l) statements." If an EPA
technician or inspector writes a report which a facility
manager reads and certifies as being accurate* then this
report may be considered the "statement" of the facility
manager. The manager has "adopted" the report. Also, the
notes or laboratory reports of a technician or inspector
are («)(!) statements" as to that technician or inspector.
If the technician or inspector testifies, then these notes
or reports must be turned ov-er to the defense if they relate
to the subject matter of the direct testimony. It does not
matter who records the statement or for what purpose; it
remains Jencks Act material. EPA technical personnel must
keep any notes that they have made of interviews with facil-
ity personnel (or other potential witnesses) as well as notes
recording actions which may later be the subject of a criminal
prosecution.
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(e) (-2) Statements*: Statements which are "(e)(2) statements"
include, not only tape recordings, but any notes which can be
considered a "substantially verbatim recital" of a witness's
oral statement. If an agent takes notes quoting, or writing
down in a substantially verbatim form, the words of a witness
and these notes are taken either at or near the time of the
witness's oral statement, these notes become the witness's
*(e)(2) statement*. The agent taking the notes is viewed in
the manner of 8 stenographer who accurately memorializes the
witness's words*. The witness does not have to approve or
adopt the agent's notes. He does not have to even know that
notes were being taken. If the agent has captured the witness's
words on paper, then these words are the witness's statement
even if he is unaware that he is making a statement.
Agents who testify in court become witnesses whose
statements also must be turned over to the defense. Investi-
gative reports, written interpretations or impressions of a
case, and written analyses of case problems and issues may
all be "statements" of an agent. For instance, a report of
a witness interview may not be a witness's "(e)(l)" or "(e)(2)"
statement because it does not directly quote the witness or
capture the witness's words in a substantially verbatim form.
However, it may be the "(e)(l) statement" of the agent who
wrote the report. "The written report of the agent, however,
is just as much a verbatim statement of the agent who prepares
it as a written statement of an informer, incorporated in
the report, is the statement of the informer." Holmes v.
United States, 271 F.2d 655, 658 (4th Cir. 1959).
Running resumes" of F.B.I, agents, detectives or EPA
agents are "(e)(l) statements" of the agent and may be
producible. If a Criminal Enforcement Division Special Agent
testifies, it can be anticipated that his/her notes, reports
to SAICs, case referral reports, and investigative reports
will be producible if the direct testimony covers areas
which are discussed in these previously written documents.
United States v. Sink, 586 F.2d 1041 (5th Cir. 1978), cert.
denied, 443 U.S. 912 (1979); Holmes v. United States, supra.
Although it is incumbent upon the txial judge to separate
out personal evaluations and "discussions of legal and
practical problems of a prosecution" from the "running '
resumes" (or from any document which contains Jencks Act
material),-the writer who includes extraneous material always
runs the risk of a judge decidirig against excision. United
States v. Pfinqst, 377 F.2d 177, 195 (2d Cir.), cert, denied,
412 U.S. 941 (1973). Material in an agent's report which
is sensitive or which might affect the security of EPA's
investigative techniques is not exempt .from Jencks Act
requirements. West v. United States, 274 F.2d 885 (6th Cir.
1960), cert, denied, 365 U.S. 819 (1961).
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Notes, reports, etc., in the hands of any EPA employee
including criminal investigators, lawyers and technical
personsare considered "in the possession of the government."
Therefore, if an EPA employee fails to disclose Jencks Act
material to the prosecutor, that failure will be held against
the Government even though it is the agent rather than the
prosecutor who has failed to preserve something. United
States v. Bryant, 439 F.2d 642 (D.C. Cir. 1971); Emmett v.
Ricketts, 397 F. Supp, 1025 (N.D. Ga. 1975); United States v.
Niederberger, 580 F.2d 63 (3d Cir. 1978); United States v.
Williams, 604 F.2d 1102 (Bth Cir. 1979). As soon as a case
is opened by the Criminal Enforcement Division, the agent
assigned to the case should inventory all existing notes and
reports concerning potential government witnesses in the
possession of, or known to, all Agency personnel involved in
the case, and inform them of their obligation to retain such
material. Copies of this Agency's guidance on the Jencks Act
should also be distributed to such personnel.
Courts will require the Government to turn over any material
which fits the "statement" definition if it relates to the
subject matter of the witness's direct testimony. Any material
which either is not a statement of the witness or does not
relate to the subject matter of the witness's direct testimony
will be excised from the document. A judge may not exercise
his or her own judgment as to what material is important,
helpful or necessary for the defense. If it is a statement
that relates to the direct testimony, it must be turned
over.
Courts have broadly interpreted the phrase "relates to
the subject matter as to which the witness has testified," in
Section (b) of the Act. However, courts have more restric-
tively defined "statements" under Section (e). Acknowledging
that it is unfair to cross-examine a witness using material
which does not represent what the witness in fact said,
courts have excluded material that is really the agent's
words or impressions rather than those of the witness. In
Palermo v. United States, 360 U.S. 343 (1959), the Court
affirmed the denial ofthe production of a 600-word memoran-
dum in which the Government agent summari-zed a three and a
half hour interrogation of a witness who testified at trial.
In one of the first Supreme Court decisions discussing the
statement" definition of the Jencks Act, the Court attempted
to clarify what courts may exclude:
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uminaries of an oral statement which evidence substan-
tial selection of material* or which were prepared after
the interview without the aid of complete notes, and hence
rest on the memory of the agent, are not to be produced.
Neither, of course, are statements which contain the
agent's interpretations or impressions.
360 U.S. at 353. . If a court describes an agent's notes as
"rough", "random* or "brief", it will be signaling its finding
that the notes are not "statements" as to the witness referred
to in" the notes.
To determine whether notes accurately reflect a witness's
words, ^courts -will co?*fii
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Issue
When must Jencks Act material be made available to the
defense and what are the sanctions if it is not made
available?
Discussion
If a prosecutor decides to follow strictly the letter
of the law, he or she need not turn over Jencks Act material
until after the witness has testified at trial for the Govern-
ment. However, because of the delay which this creates (while
the defense reviews the material)* most courts expect that a
prosecutor will agree to turn over Jencks Act material either
at the start of each day of. trial or before the witness testi-
fies on direct examination. Some prosecutors even allow the
defense to examine the material before trial.
As in any area of the law, different courts interpret
the Jencks Act differently. Prosecutors who are aware of
previous rulings by a court on Jencks Act issues will conform
their practice accordingly. Therefore, what one prosecutor
considers Jencks Act material, another may not. EPA personnel
must accommodate themselves to the practice of the prosecutor
within their jurisdiction.
The Congressional purpose of the Act is to allow the
defendant to have, for impeachment purposes, "relevant and
competent statements of a governmental witness in possession
of the Government touching the events or activities as to
which the witness has testified at trial.' Campbell v. United
States, supra, 365 U.S. at 92. If the defense's ability to
cross-examine is impeded by the deliberate or inadvertent
loss, by the Government, of Jencks Act material, the Court
may decide not to allow the witness to testify at all or to
strike the witness's entire testimony. Of course, the effect
of completely excluding the testimony of a Government witness
may be significant.
Although the Act does not require the automatic imposi-
tion of sanctions for failure to preserve potential Jencks
Act material, courts have warned law enforcement agencies of
their duty to promulgate procedures to ensure preservation.
lS]anctions for non-disclosure based on loss of evidence
will be invoked in the future unless the Government can
show that it has promulgated, enforced, and attempted in
good faith to follow rigorous and systematic procedures
designated to preserve all discoverable evidence gathered
in the course of a criminal investigation. The burden,
of course, is on the Government to make this showing.
Negligent failure to comply with the required procedures
will provide no excuse.
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United States v. Bryant, 439 F.2d 642 (D.C. Cir. 1971)
(footnote omitted}(emphasis in original).
Jn light of the sanctions that can flow from a failure
to preserve Jencks Act material, as well as Government's
inherent responsibility to preserve discoverable evidence, it
is incumbent upon EPA to develop procedures that will ensure
this end.
I-ssue
What procedures should be implemented throughout the
Agency to preserve Jencks Act material?
Discussion
As a general rule, after a matter is referred to the
Criminal Enforcement Division for investigation, investi-
gators from that Division will be responsible for reports
written to document factual developments in ongoing cases.
This would include, for example, interview write-ups, sur-
veillance reports, documentation of the receipt of physical
evidence, etc. One clear exception to this general rule
will be Agency technical personnel who will continue to
draft reports documenting sampling data and analysis, chain
of custody information, etc.
If more than one investigator is involved in an investi-
gation, only one report should be written documenting a
specific event unless circumstances mandate otherwise.
All work notes should be retained by Agency personnel
working on the criminal investigation until the final disposi-
tion of the case. This potential Jencks Act material must
be kept in secured files when not in immediate use. Any
notes taken at the time of the event, or at the time of the
interview, as well as reports composed from the notes must be
retained. Intermediate drafts need not be retained.
Investigative reports and technical reports should not
include the writer's subjective thoughts, impressions or
general opinions concerning a case. If it is thought necessary
to reduce to writing information that is not strictly factual,
this should be kept separately in secured files. It is more
likely that material which is arguably not producible under
the Act will be withheld from the defense if it is kept apart
from material which is clearly Jencks Act material. Rather
than disputing in court which portions of reports should be
excised, everything within a report should be relevant and
objective material. Extraneous material which does not
directly relate to a case should not.be included in investi-
gative reports on that case.
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APPENDIX A
$3500 Demands for production of statements and reports of
witnesses.
(a) In any criminal prosecution brought by the United
States, *no statement or report in the possession of the United
States which was made by a Government witness or prospective
Government witness (other than the defendant) shall be the
subject of subpoena, discovery, or inspection until said wit-
ress has testified on direct examination in the trial of the
case.
(b) After a witness called by the United States has tes-
tified on direct exami-nartitJn, the court shall, on motion of
the defendant, order the United States to produce any state-
ment (as hereinafter defined) of the witness in the possession
of the United States which relates to the subject matter as to
which the witness has testified. If the entire contents of
any such statement relate to the subject matter of the testi-
mony of the witness, the court shall order it to be delivered
directly to the defendant for his examination and use.
(c) If the United States claims that any statement
ordered to be produced under this section contains matter
which does not relate to the subject matter of the testimony
of the witness, the court shall order the United States to
deliver such statement for the inspection of the court in
camera. Upon such delivery the court shall excise the portions
of such statement which do not relate to the subject matter of
the testimony of the witness. With such material excised, the
court shall then direct delivery of such statement to the
defendant for his use. If, pursuant to such procedure, any
portion of such statement is withheld from the defendant and
the defendant objects to such withholding, and the trial is
continued to an adjudication of the guilt of the defendant,
the entire text of such statement shall be preserved by the
United States and, in the event the defendant appeals, shall
be made available to the appellate court for the purpose of
determining the correctness of the ruling of the trial judge.
Whenever any statement is delivered to a defendant pursuant to
this section, the court in its discretion, upon application of
said defendant, may recess proceedings in the trial for such
time as it may determine to be reasonably required for the
examination of such statement .by said defendant and his
preparation for its use in the trial.
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(d) If the United States elects not to comply with an
order of the court under subsection (b) or (c) hereof to
deliver to the defendant any such stateraentr or such portion
hereof as the court may direct, the court shall strike from
the record the testimony of the. witness, and the trial shall
proceed unless the court in its discretion shall determine
that' the interest interests of justice require that a mistrial
be declared.
(e) The term "statement"r as used in subsections (b),
(c)» and (d) of this section in relation to any witness
called by the United States, means
(1) a written statement made by said witness and
signed or otherwise adopted or approved by him;
(2) a stenographic, mechanical, electrical, or other
recording, or a transcription thereof, which is
a substantially verbatim recital of an oral
statement made by said witness and recorded
contemporaneously with the making of such oral
statement; or
(3) a statement, however taken or recorded, or a
transcription thereof, if any, made by said
witness to a grand jury.
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I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. OC 2B4CO
HOY 22 BBS
OFFICC or
CMFOMCKMKMT COUMKU
MEMORANDUM
SUBJECT: Working Principles Underlying EPA16
National Compliance/Enforces«jt Programs
FROM: Courtney M. Prid
Assistant Administrator1 for Enforcement
and Compliance Monitoring
TO: Assistant Administrators
Associate Administrators
Regional Administrators, Regions I - X
The working principles for EPA's national compliance/
enforcement programs set out below were developed by the
Compliance/Enforcement Task Group and are intended to establish
the framework and philosophy for the compliance and enforcement
programs administered by EPA.
I believe it is important for us to strive to apply the
principles set out below in managing the compliance/enforce-
ment components of the Agency's programs. To that end,
please make sure Office Directors and staff members with
responsibilities in these areas receive copies of this memorandum
so they that can use it as a guide in making choices for
managing these programs.
I expect these principles to be dynamic and to change as
we proceed to implement the program specific compliance and
enforcement strategies the Task Group has developed.
The fundamental objective of EPA18 national compliance/
enforcement program administered by EPA and the States is to
protect public health and the environment through a comprehensive
effort to foster full and expeditious compliance with environmental
laws and regulations. Different components of the national
program are designed to achieve this goal through
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-- setting program goals and priorities to achieve the
environmental benefits;
identifying the regulated community to understand the
cope of the problem;
.. promoting compliance by the regulated community;
monitoring compliance by the regulated community to
reliably detect violations of lavs and regulations and
establish program priorities;
responding appropriately to detected violations;
working with State and local governments to achieve
national compliance and enforcement goals;
continually evaluating our progress in meeting our
goals and objectives in each area of the compliance/
enforcement program and refining our efforts accordingly;
building public confidence in our compliance and enforcement
efforts.
Each of these components will be discussed in more detail
below.
I. Setting Program Goals and Priorities to Achieve Environmental
Benefits"
* Federal and State governments must share responsibility
for developing and implementing national compliance and
enforcement strategies.
4 EPA*s national compliance and enforcement programs
will be based on realistic and attainable goals,
considering the size of the regulated community and
the scope of the requirements governing its activities.
0 Although statutes enforced by EPA may require strict
compliance in all cases. EPA oust establish priorities
for enforcement since it is unlikely that EPA could
respond with the same level of effort to each detected
violation. Individual programs -may establish both
long term and short term goals to achieve full,
expeditious compliance. In establishing and pursuing
these specific goals, national strategies for compliance/
enforcement activities will base priorities and
targets on the following factors:
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Likelihood that a violation by a source or
category of sources will result in pollution
presenting a signiffcant risk to human health and
the environment (based xm, £or example, the
* pollutant(s) at issue, the type and sire of the
source, or the likely scope of exposure to the
excess pollution),.
-- Likelihood that a source or category of sources
will violate environmental laws or regulations
(based on, for example, their sophistication or
compliance history, the newness or rampl-exity of
the regulations, or the economic incentives for
noncompliance) .
Likelihood that an action will contribute
significantly toward assuring a credible enforcement
presence (for example, if the action is precedential
in nature, highly visible to the regulated community,
or necessary to ensure that some attention is
paid to a particular compliance/ enforcement area.)
National programs must achieve a balance between those
compliance and enforcement actions which aost clearly
result in significant, immediate environmental benefit
and those designed primarily to support a credible
enforcement presence (and the environmental benefits
which that presence produces less directly).
The type of compliance or enforcement action chosen in
individual cases will depend on the priority or relative
importance of the action in light of the considerations
listed above and the amount of resources necessary to
pursue a given type of action relative to other possible
actions.
II. Identifying the Regulated Community to Understand the Scope
of the Problem'
* To the extent practicable, EPA's national compliance
and enforcement programs must be able to identify
parties subject to environmental laws and regulations
according to the types of requirements governing
their activities and the1 types of activities they
perform. Such "inventories are useful to establish
priorities and select targets across a program.
This identification also aids in evaluating the
effectiveness of compliance/enforcement programs.
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0 EPA will pursue all available, cost-effective means
for identifying the regulated community, including
in-house investigators and regulatory mechanisms.
* Priority will be given to identifying those parties
in the regulated community who, if in noncompliance,
would have a significant impact on the environment,
public health or the credibility of the enforcement
'program.
III. Promoting Compliance by theHegulated Community
Compliance promotion entails ensuring that the
regulated community has adequate information, tools,
and techniques available to achieve compliance and
the incentive to use them. Compliance promotion
includes:
clarifying responsibilities for the regulated
community;
providing technical information on compliance
t echn iques; and,
encouraging voluntary efforts to achieve, maintain
and monitor compliance.
* EPA will promote compliance by resolving issues affecting
permit issuance and by issuing required permits in a
timely manner. Permits should clearly state the
compliance responsibilities of the permittee.
* Regulated parties bear responsibility for ensuring
their own compliance. Nevertheless, because preventing
violations is more beneficial for environmental
protection than remedying the violations after they
occur, national programs should provide for compliance
promotion activity.
* A credible enforcement, presence based on credible
enforcement responses is a prerequisite to ensure
that regulated parties have incentive to follow
through on compliance promotion efforts.
i
* Discretion end flexibility should generally be given
to an individual regulated party for deciding on
the best ways it can prevent noncompliance.
* Compliance promotion activities should focus on
making accessible meaningful information on compliance
techniques and systems for monitoring compliance
and correcting noncompliance.
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0 Compliance promotion activities should focus most
seriously on situations which involve newly-imposed
or complicated requirements or inexperienced.
'unsophisticated parties.
IV. Monitoring Compliance; Collecting and Assessing Compliance
Information
* Objectives of compliance monitoring by the Federal
government and States include:
collecting evidence necessary to support enforcement
actions regarding identified violations;
reviewing source compliance to identify potential
violations;
developing an understanding of compliance patterns
of the regulated community to aid in targeting
activity, establishing compliance/enforcement
priorities, evaluating strategies, and communicating
information to the public; and.
helping to establish an enforcement presence.
* Priorities for compliance monitoring activities should
be set by EPA to achieve the objectives set out above.
Factors to consider in setting priorities among these
objectives and targeting compliance monitoring
activities should include:
the seriousness of violations which have
been identified in the past for a particular
source or category of sources;
the extent to which compliance patterns already have
been identified;
the extent of source review needed to establish a
credible enforcement presence; and,
the criteria listed in Part I above.
* Methods for compliance monitoring will depend upon the
objective of the monitoring activity and the resource
requirements associated with the activity. Thus, evidence
collection efforts to support enforcement actions will
employ more resource-intensive methodologies (e.g.,
on-site inspections by expert, in-house criminal
investigators) than will surveys of regulated community
compliance patterns (which can rely nore easily on
contractors or self-monitoring reports).
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Regulated parties should keep track of their own
compliance status using any required Methods, as
veil as whatever other means they deem reasonable
to provide themselves with Tellable Information.
Where reliable, cost-effective and authorized by law,
national programs will rely on enforceable 6 elf-report ing
requirements as a primary screening tool for identifying
potential violations.
Because of the importance of »elf-report ing to the Agency's
task of compliance monitoring, national programs will
place high priority upon enforcement actions, including
criminal prosecutions, in cases of deliberate distortion
and/or falsification of self-reporting data.
National programs should use any available legal
authorities to collect useful information, but
must ensure that information requests are precisely
formed to avoid imposing any unnecessary information
collection requirements and should carefully consider
the extent to which the requests nay inhibit the
regulated party's own voluntary self-compliance
efforts.
All information requests not qualifying under the
enforcement exemption must conform to Che requirements
of the Paperwork Reduction Act.
Programs should identify and use, where cost-effective,
all sources of information concerning violations
(including citizen groups and outside regulatory
and law enforcment agencies).
Clear protocols should be identified to provide adequate
assurance of the quality and reliability of compliance
monitoring data in light of the purpose for vhich the
data will be used.
Compliance monitoring activity must, where feasible, assess
regulated parties' success at maintaining compliance as
well as at achieving it initially.
To the extent feasible, national programs will track
compliance patterns across all segments of the regulated
community in order to target enforcement intiatives
by identifying the relative seriousness of problem
areas. Where not presently feasible, national programs
should attempt to identify and pursue ways for attaining
that capability.
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V. Responding to Violations (Enforcement Responses)
* Federal or State officials, as appropriate, will evaluate
.each detected violation and make a conscious decision as
to the appropriate enforcement response.
* Enforcement responses to violations will seek to
balance the following
Correction of the violation as quickly as practicable
in light of governing law, technological feasibility
and ongoing environmental risk.
Deterrence of future violations by the same party
or other parties.
Equitable treatment of the regulated community
through a uniform approach to selecting enforce-
ment responses and by taking responses which
remove significant benefits the violator may
gain through non compliance.
Punishment of serious, willful wrong-doing by
imposition of criminal sanctions.
-- Effective use of enforcement resources through the
least resource- intensive enforcement response
which still permits achievement of the other national
enforcement goals.
Priorities for targeting violations for enforcement
responses should be based on criteria listed in Part 1.
Government officials may decide according to these
criteria that a technical violation merits such low
priority that no further response action need be
considered.
The severity of the response necessary to pursue these
national enforcement goals will depend upon the following
considerations:
the range of responses authorized by law;
the actual or potential harm to public health
and the environment presented by the violation;
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other significant public expense or injury caused
by the violation;
economic benefit accruing to the violator;
? the violator's efforts to identify, report, and
correct the violation independent of the enforcement
response;
the violator's previous history of compliance/non-
compliance;
the culpability of the violator;
the sufficiency of evidence demonstrating a violation
linked to the party in question;
the likelihood that a given response may establish
good or bad precedent; and,
the importance of the action to maintaining a
credible enforcement presence.
These same factors, as veil as a violator's ability to
pay, should be considered in deciding whether to pursue
civil penalties, and for what amount. The economic
benefit to a violator from noncompliance is a particularly
important objective to consider in deciding on an appro-
priate amount. Civil penalty actions are appropriate,
even if the underlying violation has been corrected, if
necessary to establish adequate deterrence against future
violations or to restore equity relative to other members
of the regulated community which have been in compliance.
The fora of the enforcement response (e.g., administra-
tive vs. Judicial) is not important per re, as long as
the response can achieve desired results. Programs
vill chose responses based on the facts of the case
and the factors set out above. Each available enforce-
ment tool (including judicial litigation) oust be
used often enough to establish the credibility of
that tool and provide real incentives for regulated
parties to pursue solutions in the context less
drastic aeasures (e.g., negotiations).
If a lover level enforcement response does not
result in achievement of the objectives for that
response, EPA vill escalate its enforcement response
accordingly.
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Negotiated resolution of enforcement actions should
be viewed as a cost-effective way of responding to
violations as long as the response still achieves
national enforcement goals. However, a credible
threat of litigation or enforceable administrative
action is necessary for an effective negotiation
program.
Negotiations and other response activity must adhere to
definitive, government-established schedules to ensure
expeditious completion and remedy. Government officials
U6t
apprise the alleged violator of the violation quickly
so as to facilitate its correction;
develop prior to the start of negotiations a common
and clear understanding of the desired remedy or
relief; and,
in litigative enforcement matters, communicate through
the attorneys representing each side.
Government officials must avoid taking any actions
or making representations which may foreclose possible
future enforcement actions in a case, particularly
in the event that new information subsequently comes
to light.
To preserve a credible enforcement presence, the
use of exemptions or relaxation of operative permit
provisions instead of enforcement responses as a
means of addressing committed violations should be
avoided unless exemptions or revisions are truly
warranted (i.e., the source qualifies for exemption
through straightforward application of criteria).
When Agency officials have determined that a response to
a violation should be developed as a potential criminal
enforcement action, civil proceedings typically
should await completion of the criminal action
unless injunctive relief is necessary.
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0 Unless expressly exempted, non-profit institutions,
including government entities, have the same compliance
responsibilities as entities operated for profit.
The factors set out below, in light of the seriousness
of the violations, say affect the length of the
violator's compliance schedule or the amount of
penalties imposed, but not the institution's ultimate
.obligation to comply? nevertheless, because of the
unique characteristics of these institutions, selec-
tion of responses to violations by these institutions
must carefully consider:
the availability of funds to the institution to
meet the costs of compliance;
the extent, if any, to which economic benefit from
non-compliance may have motivated the institution
or have disadvantaged complying competitors; and,
the ability of the institution to pay penalties.
* EPA will respond to violations by Federal facilities
through the mechanisms provided by Executive Order 12088
* Enforcement responses to violations once initiated,
must be completed expeditiously and monitoring must
be undertaken to ensure that affected parties comply
with the requirements which the responses impose.
0 Administrative or judicial orders should be drafted in
a manner which facilitates their enforcement. Require-
ments and responsibilities should be clear and
capable of being enforced.
* Significant violations of requirements imposed in prior
enforcement responses to address comparable violations
aerit responses of their own which are At least as
severe as the prior response. Such a response should
include, in appropriate cases, actions for civil or
criminal contempt. Responses which are inadequate
to bring continuing violations to a halt can undermine
the establishment of a credible enforcement presence.
VI. Coordinating Federal and State Activities
0 Most environmental protection statutes provide States
with the lead role in compliance and enforcement
activities once EPA has authorized the State program.
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EPA retains the lead compliance and enforcement role
for statutory programs requiring national administration
(e.g., programs which .regulate nationally-marketed
products). Otherwise, it has been EPA policy to
transfer the administration of such compliance and
enforcement programs to State and local governments
in a nanner consistent with applicable statutory
requirements.
EPA and the States oust work together to develop national
and local strategies and to plan their respective roles
in implementing these strategies. "Roles may vary accord-
ing to the programs and States involved, but in all cases
should be articulated clearly at the planning stage of
strategy implementation.
EPA responsibilities include formulating national compliance
and enforcement goals and priorities; development of
necessary policy, guidance, and procedures; overseeing
State performance; providing grants, technical assistance,
and training to States; and pursuing compliance and
enforcement action directly for nationally-administered
programs and for other cases where necessary to ensure
successful implementation of national strategies.
Such activities should reflect early and continuing
consultation with States.
State responsibilities include direct implementation of
authorized compliance and enforcement programs consistent
with national strategy and policy; putting federal grants
and technical assistance to effective use; contributing
meaningfully to the development of national policy and
strategy; and providing EPA with information necessary
to oversee and evaluate State activities and national
program implementation.
Oversight of State activities by EPA is undertaken to
ensure that compliance/enforcement responsibilities
are being carried out by the States. Moreover,
oversight is a tool EPA uses to improve both Federal and
State enforcement programs by identifying problem areas
and aiding States in resolving problems identified.
EPA must base its oversight of State compliance and
enforcement activities according to clearly articulated
measures of State success in pursuing the goals of the
national compliance/enforcement program.
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States must provide EPA with the information necessary
to perform oversight. EPA must define information
needs clearly and uniformly, limit information gathering
-to that necessary to oversee State activities and
national program Implementation, and avoid frequent
changes to the scope of reporting requirements, to the
extent feasible.
-EPA will take the following action (or a combination
of these actions) when oversight identifies an ineffective
state compliance and enforcement program (depending on
the degree of
provide more training for State employees or technical,
or on- site administrative assistance; or
implement more detailed reporting requirements;
take a more active role in compliance and enforcement
actions;
-- withdraw State program authorization (but only in the
most extreme cases).
EPA will consider providing additional funds to help
States improve effectiveness if it is clear that
inadequate funding is causing the ineffectiveness,
that additional funding at the State level is not
readily available, and that Federal funds are available.
The level of scrutiny EPA gives to individual State
actions will depend on:
demonstrated State success in implementing a
given program, i.e., achieving acceptable rates
of compliance;
the extent to which the State requests direct
involvement;
the environmental importance of a given individual
action; and,
the minimum level necessary to ensure the integrity
of the national enforcement effort.
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* Where legal authority exists. States generally will
have primary responsibility for monitoring compliance
and pursuing responses to identified violations.
-However, EPA has ultimate responsibility for ensuring
effective national enforcement of environmental
laws. Therefore, EPA will take an active role in
natters in which the State is unable or unwilling to
act, adequately or expeditiously, or if the natter
'is one which has national implications or precedential
Impact. EPA will exercise this authority based upon
clear criteria and will assure proper coordination
with 'State programs.
* States will have flexibility in choosing appropriate
enforcement responses, which need not be identical to
the response which EPA might have chosen. Nevertheless,
EPA will take its own action, despite ongoing State
action, if EPA finds that State response to a significant
violation is not expeditious or is clearly inappropriate
or inadequate to achieve the relevant goals of an
enforcement response (as listed in Section V).
* EPA vill not expect States to take enforcement actions
which are more severe or expeditious than EPA Itself
would take in practice under comparable authorities.
0 Both EPA and the States are responsible for keeping each
other informed on significant ongoing compliance and
enforcement activity of Interest to the other to promote
proper coordination, mutually-supportive action, and
effective use of resources at both levels of government.
VII. Implementing. Evaluating and Refining Strategies
* Regional offices and State agencies, in consultation with
each other, aust develop their own plans for implementing
national program strategies.
0 Each national program must track compliance and enforce-
ment activity implementing its national strategy in order
to
evaluate the success of the program in achieving
the strategies goals;'
-- maintain understanding of patterns of compliance and
noncompliance in the regulated community.
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* EPA will pursue the establishment of national tracking
Bystems which can facilitate strategy evaluation and
refinement by indicating, at a minimum:
* compliance rates and patterns for significant
sources;
- the extent of compliance review activity (i.e.,
inspections, self-monitoring reports, etc.);
the extent of complete and expeditious imple-
mentation of enforcement responses.
* Periodic evaluation of strategy implementation on
the national, Regional, and State level vill be
undertaken within EPA to influence the annual budget
process and operating guidance.
0 Periodic refinement of strategies will take place
based on formal evaluation results and other relevant
information. Refinement can focus both on new ways
to achieve the original goals of the program or on
achieving new goals established for the refined
strategy.
VIII. Building Public Confidence in EPA's Enforcement and
Compliance Programs
* A credible enforcement program is the foundation of
an effective national strategy which ensures that
regulated parties have the requisite incentive to
achieve full and expeditous compliance. National
programs oust possess the following characteristics
to promote establishment of a credible enforcement
presence:
-- Fairness. Oversight of the activities of regulated
parti««~«u«t be conducted in .an unbiased Aanixer.
Enforcement responses must be commensurate with the
seriousness of a violation, yet be flexible enough to
account for extraordinary circumstances relevant to
the violation. Violators should not benefit
from their violations relative to parties which
are in compliance.
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-- Certainty. Compliance requirements must be defined
with sufficient clarity and precision to communi-
cate expected standards of behavior. The national
programs must be effective in identifying significant
. violations and establish an adequate likelihood
that any kind of violation can be detected.
Responses to identified violations must be
consistent, expeditious and follow these principles
and specific national guidance.
-- Uniformity. EPA should follow a uniform view
of which actions constitute a violation of a
given legal requirement. EPA and States should
employ reasonably similar treatment toward parties
in comparable situations.
-- Openness. Final actions taken in the compliance
and enforcement areas will be available for public
scrutiny to the extent allowed by law and the
extent to which the success of future enforcement
activity is not jeopardized.
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