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GUIDELINES FOR ENFORCING FEDERAL DISTRICT COURT ORDERS
IN ENVIRONMENTAL CASES
Purposes •
This guidance emphasizes the importance of enforcement of
Federal district court orders that embody either consensual or
nonconsensual resolutions of environmental enforcement litigation.
It establishes uniform Agency objectives in preparing for and in
responding to violations of court orders. The goal of this
initiative is to minimize the number of violations of court
orders and to facilitate enforcement efforts when such violations
are detected. Recently, the Agency developed the Consent Decree
Tracking System which will provide a centralized data base and
reporting system to upgrade consent decree enforcement. Ultimately,
the lists of "significant violators" maintained in each program
area should include all significant violations of court orders.
Pol i cy
EPA places a very high priority on enforcement of court orders.
This policy ensures that defendants meet the requirements of each
court order in order to achieve the objectives of the underlying
civil action. Moreover, vigorous enforcement of court orders is
essential to enable the Agency to maintain its credibility with
the courts, the public, and the regulated community, and to achieve
the desired environmental objective.
Scope
This guidance specifically applies to the enforcement of consent
decrees and nonconsensual orders entered in Federal district court
that remedy violations of any of EPA's laws or regulations. It
also covers the following areas:
— Drafting court orders to ensure enforceability.1
— Selecting responses to violations of consent decrees
and other court orders.
— Considering other procedures in implementing an
enforcement response.
_!/ Additional guidance on drafting enforceable consent decrees
can be found in Agency policy entitled, "Guidance for Drafting
Judicial Consent Decrees" (General Enforcement Policy Compendium,
GM-17, dated 10/19/83).
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Drafting Orders to Ensure Enforceability
EPA should obtain terms that are legally enforceable in
negotiating a consent decree or writing an order at the request
of the court. The order should provide for reasonable methods
for monitoring compliance with the order's requirements and should
establish adequate incentives for compliance.
Careful elimination of areas for future dispute can
facilitate enforceability. Requirements in the order should
be clear, understandable, and should avoid any possible
ambiguities. The order should both clearly require compliance
with the applicable regulations and establish the method or
procedure that will be used to determine compliance. In some
cases, it may be appropriate to specify the pollution control
technology to be used. In no event, however, should the order
deem compliance to mean anything but compliance with the
applicable legal requirement.
In every case, the obligation to comply must rest solely
with the defendant. Provisions that operate to "excuse" non-
compliance, e.g., a force majeure clause, should be narrowly and
explicitly drawn.2 The order should avoid any ambiguities
regarding the defendant's compliance obligations associated with
revisions to the underlying requirements. If the litigants
expect future legislative or regulatory changes to the underlying
requirements, the court order must clearly establish the procedures
that would change the order's compliance obligations. The order
should provide that revision to the underlying requirement does
not excuse noncompliance with the terms of the order unless and
until the court amends the order.
The order should establish explicit compliance verification
procedures. Because inspections are likely to be more objective
than self-monitoring, the order should provide authority for EPA
to conduct inspections at reasonable times. If resources will
not permit detailed inspections by EPA or State or local
authorities, some alternative form of compliance verification
(e.g., self-monitoring, self-reporting, third-party verification)
should be required. In such cases, the order should require the
defendant to conduct compliance tests at its own expense on the
basis of the test methods established in the order. In addition,
2/ Economic hardship should not be established as a force majeure
event. Instead, the defendant suffering the hardship should
petition the court for a modification of the order. See,
Federal Rules of Civil Procedure Rule 60. EPA should oppose
such petitions unless the defendant convincingly demonstrates
extreme circumstances that justify modifications to the order.
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the order should provide for prior notice to EPA to enable the
Agency to observe the test or other critical event. However,
the order should always preserve EPA's authority to inspect or
otherwise obtain information on its own, and should also provide
for inspections by EPA contractors.
Compliance verification requirements should not be more
burdensome to the defendant than is necessary to determine
compliance. EPA should carefully review each report that the
defendant submits to verify that it includes all of the information
that the order requires. The order should provide that the
information used by defendants to generate self-reports must be
retained for a reasonable period of time, and that EPA must have
access to such information during that period of time. A provision
which establishes that self-monitoring and third party verification
information is admissible in proceedings to enforce the order is
highly desirable.
To facilitate verification of compliance with penalty payment
provisions, the Regional Office must ensure that, at a minimum,
it receives notice when penalties that are due have been paid.
The Regional Office should maintain organized records indicating
penalty collection dates.
It is essential to include in court orders the mechanisms
necessary to assure compliance with the terms of those orders.
Such mechanisms may include stipulated penalties, posting and
forfeiture of performance bonds or letters of credit, suspension
of operation, increased reporting requirements, and advance
approval from EPA for certain activities. Regional Offices
should determine appropriate mechanisms on a case-by-case basis
taking into account the factors described below.
The compliance mechanisms should be strong enough to deter
noncompliance by, for example, removing the economic incentives
for noncompliance, yet flexible enough to deal equitably with
the possible range of future violations. The force majeure
clause and prudent exercise of prosecutorial discretion are the
proper mechanisms for providing flexibility. In addition, the
compliance incentive provisions should not be excessive although
stipulated penalties should permit assessments which are large
enough to take into account that the violator of a court order
is, by definition, a recividist or a recalcitrant and, therefore,
in need of more serious incentive to comply.
l
The order should expressly provide that the compliance
mechanisms therein are not the exclusive remedies available to
the government. This type of provision preserves the government's
ability to seek civil or criminal contempt penalties, specific
performance of compliance provisions, and such other relief
as the government may deem appropriate to obtain final compliance
or to provide adequate deterrence against future violations.
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Court orders should generally require the defendant to
maintain and be able to demonstrate compliance for a specified
period of time after the initial demonstration of compliance.
This requirement ensures that the defendant is likely to remain
in compliance. This provision should be consistent with the
order's termination clause.
Finally, the order should explicitly state that it is binding
on subsequent owners, operators, assignees, and other successors
in interest in the facility. The order should require that these
successors, etc., receive notification of the existence of the
court order. The order should also require notification to EPA
of any transfer of interest.
Selecting Responses to Violations of Court Orders
The primary objectives of enforcement of court orders are to
correct the violation expeditiously, deter future violations by
the defendant and by the regulated community, and preserve the
integrity of court ordered remedies so as to achieve the desired
environmental protection objective. Responses to violations
must be prompt and firm to reflect the importance which EPA
attaches to the court ordered requirements.
The government may pursue a range of remedies to address
violations of court orders. These remedies include specific
performance of the order's requirements (e.g., through a motion
to enforce the order), additional specific performance requirements,
stipulated monetary penalties, civil and criminal contempts,
contractor suspension and debarment proceedings in appropriate
cases involving the Clean Air Act or the Clean Water Act, and
revised or extended compliance schedules (in the limited circumstances
described below). These remedies may be used individually or in
combination.
The government must weigh several factors in deciding upon
the type and extent of relief to pursue. The chief factors are
the environmental harm or risk caused by the violation, the
degree of willfulness or negligence displayed by the defendant,
the degree of economic benefit accruing to the defendant from the
noncomplying behavior, any attempts to mitigate the violation, the
deterrence value of the response, and the likelihood that the
response will remedy the violation. It is also appropriate to
consider the defendant's history of noncompliance and any
extraordinary costs borne by the public. In addition, and
as a secondary consideration, the government must assess the
resource implications of the enforcement response.
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All responses must require compliance with the order's
terras as quickly as possible. This requirement includes initiation
of postjudgment proceedings to collect civil penalties originally
imposed in?the decree for the underlying violation if the defendant
has failed to pay such penalties. Collection should be for the
full penalty amount.
Responses to violations of court orders typically should be
more severe than those which the government normally would seek
for a comparable initial violation of a statute, regulation, or
administrative order. Absent a convincing demonstration by the
defendant of mitigating circumstances, the government typically
should pursue significant monetary penalties unless the violations
are clearly de minimis. Penalties roust remove any appreciable
economic benefit accruing to the violator. In addition to recouping
economic benefit, the penalties should reflect the recidivistic
or recalcitrant behavior of the defendant. The case file must
include an explanation of why the case managers have decided to
pursue a particular penalty figure or no penalty.
The government should seek imposition of specific relief
beyond that already required in the court order when necessary to
provide adequate assurances of future compliance. Factors to
consider in determining the need for such assurances are the like-
lihood of future violations, the environmental harm or risk which
a future violation would be likely to pose, and the government
resources involved in monitoring compliance with the additional
requirements. Examples of further specific relief include more
stringent reporting requirements, advance EPA approval of relevant
activities by the defendant, temporary or permanent shutdown of
violating facilities, more stringent operation and maintenance
obligations, and posting of revocable or irrevocable letters of
credit or performance bonds.
Normally, the government should avoid agreeing to extensions
of compliance schedules without pursuing significant monetary
penalties. Extensions without penalties typically should be
limited to cases in which the defendant can prove that the violation
was caused by circumstances falling squarely within the force
majcure clause of the order. Moreover, an extension without
penalties is permissible only if the extension poses limited
environmental harm or risk, and a substantial public interest
basis exists for extending the deadline. Extensions of compliance
schedules must set realistic timetables for compliance aimed at
securing compliance as quickly as possible. In any event, the
defendant must continue to otherwise comply with the order.
The government should also consider-the possibility of
criminal contempt under the provisions of 18 U.S.C. S 401(3)
in situations of aggravated noncompliance with consent decrees
for which punishment is a legitmate objective of an enforcement
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response. Factors to be considered in determing the appropriate-
ness of criminal sanctions include: (1) the scope and duration
of the noncompliance involved in the violation of the consent
decree; -(2) the environmental contamination or human health
hazard resulting from that noncompliance; (3) the willfulness of
the violation (in a criminal contempt action the government must
show that the violation was willful and deliberate); (4) any
falsification activity involved in the noncompliance (i.e.,
misrepresentation by the party subject to the consent decree
concerning compliance with that consent decree); (5) the ability
of the party that is subject to the consent decree to achieve
compliance; and (6) the evidence of motivation for the noncompliance.
When dealing with deliberate noncompliance with a civil
consent decree, one is by definition dealing with a corporation
or individual that has already gone through less severe enforcement
actions which have proven ineffective. The potential for using
criminal contempt should, therefore, be considered in all
significant cases of noncompliance with judicial consent decrees.
Other Matters To Consider In Implementing An Enforcement Response
The government should make every effort to coordinate enforcement
responses with any governmental co-plaintiff. If no satisfactory
agreement is possible, EPA must still fulfill its mandate to enforce
environmental laws. Similarly, the government should give careful
consideration to the enforcement concerns of private co-plaintiffs,
particularly regarding final settlements. Even if the private
party's role is limited to commenting on the settlement, the
government should carefully consider such comments.
The government should establish a timetable for responding
to a violation which reflects the high priority EPA places on
enforcement of court orders. The timetable should take into
consideration the nature of the violation, the need, if any, to
take immediate action, the sufficiency of the available proof,
and the complexity of the potential enforcement litigation. In
uncomplicated cases that do not present an emergency to the public
health or environment and, absent time requirements specifically
imposed by the court order, the Regional Office should attempt
to develop and refer the case to Headquarters within 45 days from
the date the violation was detected. Headquarters and the Justice
Department should process cases according to the timetable
established in the September 29, 1983, agreement between the EPA
Deputy Administrator and the Assistant Attorney General for
Land and Natural Resources.
Any consent decrees and modifications to consent decrees must
be in writing and signed by the Assistant Administrator for the
Office of Enforcement and Compliance Monitoring and the Assistant
Attorney General for Land and Natural Resources. Attorneys must
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make clear to the defendant that the government requires such
signatures to legally bind the United States notwithstanding
"ecommendations of acceptance of the terms of the document by
the government negotiators.
The policies and procedures set forth 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.
Courtn M. Price
Assistant Administrator for
Enforcement and Compliance Monitoring
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1 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
f WASHINGTON. D.C. 20460 .
JUN 13 1984
MEMORANDUM
SUBJECT:
FROM:
TO:
OFFICE OF
ENFORCEMENT AND
COMPLIANCE MOMITOMNG
Liability of Corporate Shareholders and Successor
Corporations For Abandoned Sites Under the Compre-
hensive Environmental Response, Compensation, and
Liability Act (CERCLA) /
j\ r\
Courtney M. Price Lj&*~J*—\ V ^ •
Assistant Administrator for Enforcement
and Compliance Monitoring
Assistant Administrator for
Solid Waste and Emergency Response
Associate Enforcement Counsel for Waste
Regional Administrators
Regional Counsels
Introduction
The following enforcement memorandum, which was prepared
in cooperation with the Office of General Counsel, identifies
legal principles bearing on the extent to which corporate
shareholders and successor corporations nay be held liable
for response costs that arise as a result of a release of a
hazardous substance from an abandoned hazardous waste facility.
In the discussion section pertaining to each part, the memorandum
reviews the law on the subject from established traditional
jurisprudence to current evolving standards. Although general
rules of liability are delineated, these principles must be
carefully applied to the unique fact pattern of any given
case.
I. THE LIABILITY OF CORPORATE SHAREHOLDERS UNDER CERCLA
Background
i
Normally, it is the corporate entity that will be held
accountable for cleanup costs under CERCLA. In certain
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instances, however, EPA may want to extend liability to include
corporate shareholders. This may arise, for example, where a
corporation, which had owned or operated a waste disposal site
at the ti»e of the contamination, is no longer in business.
The situation may also occur if a corporation is still in
existence, but does not have sufficient assets to reimburse
the fund for cleanup costs. There are two additional policy
reasons for extending liability to corporate shareholders.
First, this type of action would promote corporate responsibil-
ity for those shareholders who in fact control the corporate
decision-making process; it would also'deter other shareholders
in similar situations from acting irresponsibly. Second, the
establishment of shareholder liability would aid the negotiation
process and motivate responsible parties toward settlement.
Traditional corporation law favors preserving the corporate
entity, thereby insulating shareholders from corporate liability.
Nevertheless, as will be discussed below, there are exceptions
to this general principle that would allow a court to disregard
corporate form and impose liability under CERCLA on individual
shareholders.
Issue . •
f
What is the extent of liability for a corporate share-
holder under CERCLA for response costs .that arise as a result
of a release of a hazardous substance from an abandoned hazardous
waste facility?
i
Summary :
The question of whether EPA can hold a shareholder of a
corporation liable under CERCLA is a decision that must turn
on the unique facts specific to given situation. Generally,
however, in the interests of public convenience, fairness, and
equity, EPA may disregard the Vbrporatte entity when the shareholder
controlled or directed the activities of a corporate hazardous
waste generator, transporter, or facility.
Discussion
Section 107(a)(2) of CERCLA provides that any owner or
operator of a facility which releases a hazardous substance
shall be liable for all necessary response costs resulting
from such a release. Section 101(20)(A)(iii) of CERCLA clearly
states that the term "owner or operator" as applied to abandoned
facilities includes "any person who owned/ operated, or otherwise
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controlled activities at such facility immediately prior to
such abandonment" (emphasis added).
In addition, Sections 107(a)(3) and 107(a)(4) of CERCLA
impose liability for response costs on any person who arranged
for the disposal or treatment of a hazardous substance (the
generator), as well as any person who accepted a hazardous
substance for transport to the disposal or treatment facility
(the transporter).
The term 'person" is defined in CERCLA Section 101(21)
as, inter alia, an individual, firm, corporation, association,
partnership, or commercial entity. A 'shareholder may exist
as any of the forms mentioned in Section 101(21). Therefore, a
shareholder may be considered a person under CERCLA and, conse-
quently, held liable for response .costs incurred as a result
of a release of a hazardous substance from a CERCLA facility
if the shareholder:
• Owned, operated, or otherwise controlled activities
at such facility immediately prior to abandonment
[CERCLA Section 107(a)(2); Section 101(20)(A)(iii)];
• Arranged for the disposal or treatment (or
arranged with a transporter for the disposal or
treatment) of the hazardous substance [CERCLA
Section 107(a)(3)]; or
0 Accepted the hazardous substance for transport to
the disposal or treatment facility selected by such
person (CERCLA Section 107(a)(4)].
Notwithstanding CERCLA's statutory language, courts
normally seek to preserve the corporate form and thus maintain
the principle of limited liability for its shareholders. V
In fact, fundamental "to the theory of corporation law is
the concept that a corporation'is a Legal separate entity, a
legal being having an existence separate and distinct from
See Pardo v. Wilson Line of Washington, Inc., 414 F.2d
1145, 1149 (D.C. Cir. 1969); Krivo Industrial Supply Co.
v. National Distillers & Chem. Corp., 483 F.2d 1098,
1102 (5th Cir. 1973), modified per curiam, 490 F.2d 916
(5th Cir. 1974); Homan and Orimen, Inc. v. Harris, 626
F.2d 1201, 1208 (5th Cir. 1980).
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that of its owners." Ł/ This concept permits corporate
shareholders "to limit their personal liability to the extent
of their investment." Ł/ Thus, although a shareholder may
be considered a "person" under CERCLA (and therefore subject
to the Act's liability provisions), the application of corporate
law would tend to shield the shareholder from such liability.
Nevertheless, a court may find that the statutory language
itself is sufficient to impose shareholder liability notwith-
standing corporation law. V Alternatively, to establish
shareholder liability, a court may find that the general prin-
ciples of corporation law apply but, nonetheless, set aside
the limited liability principle through the application of
the equitable doctrine of "piercing the corporate veil."
Simply stated, the doctrine of piercing the corporate
veil refers to the process of disregarding the corporate
Ł/ Krivo Industrial Supply Co^ v. National Distillers & Chem.
Corp., 483 F.2d 1098, 1102 (5th Cir. 1973), modified per
curiam, 490 F.2d 916 (5th Cir. 1974).
V Id.
j|/ See United States v. Northeastern Pharmaceutical and
Chemical Company, Inc., et al., 80-5066-CV-S-4, memorandum
op. (W.D. Mo., 1984). In Northeastern Pharmaceutical the
district court noted that a literal reading of Section
101(20)(A) "provides that a person who owns interest in a
facility and is actively participating in its management
can be held liable for the disposal of hazardous waste."
(Memorandum op. at 36.) The court went on to find that
there was sufficient evidence to impose liability on one
of the defendants pursuant to this statutory definition
of "owner and operator," and the Section 107(a)(l) liability
provision of the Act. The fact that the defendant was a
major stockholder did not necessitate the application of
corporate law, and thus the principle of limited liability:
"To hold otherwise and allow [the defendant] to be shielded
by the corporate veil 'would frustrate congressional purpose
by exempting from the operation of the Act a large class
of persons who are uniquely qualified to assume the burden
imposed by [CERCLA].'" (Memorandum op. at 37, citation
omitted.)
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entity to hold either corporate shareholders or specific
individuals liable for corporate activities. Ł/
In order to determine whether to disregard corporate form
and thereby pierce the corporate veil, courts generally have
sought to establish two primary.elements. Ł/ First, that the
corporation and the shareholder share such a unity of interest
and ownership between them that the two no longer exist as
distinct entities. ?/ Second, that a failure to disregard the
corporate form would* create an inequitable result. Ł/
The first element may be established by demonstrating
that the corporation was controlled by an "alter ego." This
would not include "mere majority or complete stock control,
but complete domination, not only of finances, but of policy
and business practice in respect to the transaction attacked
5/ See_ Henn, LAW OF CORPORATIONS 5S143, 146 (1961). This
~ doctrine applies with equal force to parent-subsidiary
relationships (i.e., where one corporation owns the
controlling stock of another corporation).
Ł/ Generally, courts have sought to establish these elements
in the context of various theories, such as the "identity,"
"instrumentality," "alter ego," and "agency" theories.
Although these terms actually suggest different concepts,
each employs similiar criteria for deciding whether to
pierce the corporate veil.
2/ See United States v. Standard Beauty Supply Stores,
Inc., 561 F.2d 774, 777 (9th Cir. 1977); FMC Fin. Corp.
v. Murphree, 632 F.2d 413, 422 (5th Cir. 1980).
®/ See Automotriz Del Golfo de Cal. S.A. v. Resnick, 47 Cal.
2d 792, 796, 306 P.2d 1 (1957); DeWitt Truck Broker, Inc.
v. W. Ray Flemming Fruit Co., 540 F.2d 681, 689 (4th
Cir. 1976). Some jurisdictions require a third element
for piercing the corporate veil: that the corporate
structure must have worked an injustice on, or was the
proximate cause of injury to, the party seeking relief.
See e.g., Berger v. Columbia Broadcasting System, Inc.,
453 F.2d 991, 995 (5th Cir. 1972), cert, denied, 409
U.S. 848, 93 S.Ct. 54, 34 L.Ed.2d 89 (1972); Lowendahl
v. Baltimore & O.R.R., 247 A.D. 144, 287 N.Y.S. 62, 76
(1936), aff'd 272 N.Y. 360, 6 N.E.2d 56 (Ct. App. 1936),
but see, Brunswick Corp. v. Waxman, 599 F.2d 34, 35-36
(2d Cir. 1979).
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so that the corporate entity as to this transaction had at the
time no separate mind, will or existence of its own." Ł/
In analyzing this first element, courts have generally
considered the degree to which corporate "formalities have
been followed [so as] to maintain a separate corporate iden-
tity." *°/ For example, the corporate veil has been pierced
in instances where there had been a failure to maintain adequate
corporate records, or where corporate finances had not been
kept separate from personal accounts. *V
The second element of the test is satisfied when the
failure to disregard the corporate entity would result in
fraud or injustice. ŁŁ/ This would occur, for example, in
cases where there has been a failure to adequately capital-
ize for the debts normally assocated with the business
undertaking, *3/ or where the corporate form has been employed
to misrepresent or defraud a creditor. *V
V Berger v. Columbia Broadcasting System, Inc., 453 F.2d
"" 991, 995 (5th Cir. 1972), cert, denied, 409 U.S. 848,
93 S.Ct. 54, 34 L.Ed.2d 89 (1972).
1°/ Labadie Coal Co. v. Black, 672 F.2d 92, 96 (D.C. Cir.
1982); See DeWitt Truck Broker, Inc. v. W. Ray Flemming
Fruit Co., 540 F.2d 681, 686 n. 14 (collecting cases)
(4th Cir. 1976).
H/ Lakota Girl Scout C., Inc. v. Havey Fund-Rais. Man., Inc.,
519 F.2d 634, 638 (8th Cir. 1975); Dudley v. Smith, 504
F.2d 979, 982 (5th Cir. 1974).
some courts require that there be actual fraud or injustice
akin to fraud. See^ Chengelis v. Cenco Instruments Corp.,
386 F. Supp 862 (W.D. Pa.) aff'd mem., 523 F.2d 1050 (3d
Cir. 1975). Most jurisdictions do not require proof of
actual fraud. See DeWitt Truck Brokers v. W. Ray Flemming
Fruit Co., 540 F.2d 681, 684 (4th Cir* 1976).
_ See Anderson v. Abbot, 321 U.S. 349, 362, 64 S.Ct. 531,
88 L.Ed. 793 (1944); Machinery Rental, Inc. v. Herpel
(In re Multiponics, Inc.), 622 F.2d 709, 717 (5th Cir.
1980).
14/ See FMC Fin. Corp. v. Murphree, 632 F.2d 413, 423 (5th
CTr. 1980).
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In applying the dual analysis, courts act under consider-
ations of equity; therefore, the question of whether the
corporate veil will be lifted is largely one of fact, unique
to a given set of circumstances. However, the substantive
law applicable to a case nay also have great importance. For
example/ in applying state corporation law, state courts have
been generally reluctant to pierce the corporate veil. 15/
Federal courts, however, in applying federal standards,~Eave
shown more willingness to disregard the corporate entity and
hold individuals liable for corporate actions. 16/
In many instances federal decisions do draw upon state
law and state interpretations of common law for guidance. *7/
However, federal courts that are involved with federal
question litigation are not bound by state substantive law
or rulings. ŁŁ/ In such cases, either federal common law
/ See discussion in Note, Piercing the Corporate Law Veilt
The Alter Ego Doctrine Under Federal Common Law, 95
Harvard L.R. 853, 855 (1982).
it is well settled that a corporate entity must be dis-
regarded whenever it was formed or used to circumvent
the provisions of a statute. See United States v. Lehigh
Valley R.R., 220 U.S. 257, 259, 31 S.Ct. 387, 55 L.Ed.
458 (1911); Schenley Distillers Corp. v. United States,
326 U.S. 432, 437, 66 S.Ct. 247, 90 L.Ed. 181 (1945);
Kavanaugh v. Ford Motor Co., 353 F.2d 710, 717 (7th
Cir. 1965); Casanova Guns, Inc. v. Connally, 454 F.2d
1320, 1322 (7th Cir. 1972).
See Seymour v. Hull fc Moreland Eng'g, 605 F.2d 1105 (9th
Cir. 1979); Rules of Decision Act, 28 U.S.C. $1652 (1976).
Generally, federal courts will adopt state law when to
do so is reasonable and not contrary to existing federal
policy. United States v. Polizzi, 500 F.2d 856, 907 (1974)
See also discussion in note 19, infra.
18/ UNITED STATES CONSTITUTION art. VI, cl. 2.
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or specific statutory directives may determine whether or not
to pierce the corporate veil. 19 '
If/ See Anderson v. Abbot, 321 U.S. 349, 642 S.Ct. 531, 88
L/Ed. 793 (1944); Town of Brookline v. Gorsuch, 667 F.2d
215, 221 (1981). For a general discussion of federal
common law and piercing the corporate veil see, note 15,
supra. The decision as to whether to apply state law or
a federal standard is dependent on many factors:
!
•These factors include the extent to which: (1) a
need exists for national .uniformity; (2) a federal
rule would disrupt commercial relationships predicated
on state law; (3) application of state law would
frustrate specific objectives of the federal program;
(4) implementation of a particular rule would cause
administrative hardships or would aid in administrative
conveniences; (5) the regulations lend weight to the
application of a uniform rule; (6) -the action in
question has a direct effect on financial obligations
of the United States; and (7) substantial federal
interest in the outcome..of the litigation exists.
*
Even with the use of these factors, however, whether
state law will be adopted as the federal rule or
a unique federal uniform rule of decision will be
formulated remains unclear. The courts have failed
to either mention the applifcable law or to state the
underlying rationale for their choice of which law to
apply." Note, Piercing the Corporate Veil in Federal
Courts; Is Circumvention of a Statute Enough?, 13 Pac.
L.J. 1245, 1249 (1982) (citations omitted).
^*
In discussions concern*ng^CERCLAj^ the courts and Congress
have addressed several of the above mentioned factors.
CERCLA. For example, the need for national uniformity to
carry out the federal superfund program has been clearly
stated in United States v. Chem-Dyne, C-l-82-840, slip op.
(S.D. Ohio, Oct. 11, 1983). In Chem-Dyne, the court stated
that the purpose of CERCLA was to ensure the development
of a uniform rule of law, and the court pointed out the
dangers of a variable standard on hazardous waste disposal
practices that are clearly interstate. (Slip op. at
11-13.) See also, Ohio v. Georgeoff, 562 F. Supp. 1300,
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The general rule applied by federal courts to cases in-
volving federal statutes is that "a corporate entity may be
disregarded in the interests of public convenience, fairness
and equity." ŁŁ/ In applying this rule, "federal courts
will look closely at the purpose of the federal statute to
determine whether that statute places importance on the
corporate form." 21/ Furthermore, where a statute contains
specific directives on when the corporate entity may be
disregarded and individuals held liable for the acts or debts
of a valid corporation, courts must defer to the congressional
mandate. ŁŁ/
t
Thus, even under general principles of corporation law,
courts may consider the language of statute in determining
whether to impose liability on corporate shareholders.
Therefore, a court may use the statutory language of CERCLA
either as a rationale for piercing a corporate veil (when
corporation law is applied) or as an independent statutory
basis for imposing liability (notwithstanding the general
principles of corporation law). 23/
19 (continued)/
1312 (N.D. Ohio, 1983)? 126,Cong. Rec. H. Ilr787 (Dec.
3, 1983).
Tne Chem-Dyne court stated that "the improper disposal
or release of hazardous substances is an enormous and
complex problem of national magnitude involving uniquely
federal interests." (Slip op. at 11.) The court further
noted that "a driving force toward the development of
CERCLA was the recognition that a response to this
pervasive condition at the State level was generally
inadequate: and that the United States has a unique
federal financial intQfesi in thte trust fund that is
funded by general and excise tares." (Slip op. at 11,
citing, 5 U.S. Code Cong. fc Ad. News at 6,142.) See
also, 126 Cong. Rec. at H. 11,801.
ŁŁ/ Capital Telephone Company, Inc. v. F.C.C., 498 F.2d 734,
738 (D.C. Cir. 1974).
21/ Town of Brookline v. Gorsuoh, 667 F.2d 215, 221 (1981).
22/ Anderson v. Abbot, 321 U.S. 349, 365, 64 S.Ct. 531,
88 L.Ed 793 (1944).
See discussion, supra, note 4.
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Conclusion
The Agency should rely upon the statutory language of the
Act as the basis for imposing liability on any person who
controlled or directed the activities of a hazardous waste
facility immediately prior to abandonment, or on any person
who is a generator or transporter, notwithstanding the fact
that that individual is a shareholder. Additionally, and
alternatively, the Agency may rely on the general principles
of corporation law to pierce the corporate veil by applying
the current federal standard of public convenience, fairness,
and equity. However, when seeking to pierce the corporate
veil, the Agency should be prepared to apply the traditional
dual test previously discussed in order to provide additional
support for extending liability to corporate shareholders.
II. THE LIABILITY OF SUCCESSOR CORPORATIONS UNDER CERCLA
Background
Section 107(a)(2) of CERCLA extends liability for response
costs to 'any person who at the time of disposal of any hazardous
substance owned or operated any facility at which such hazardous
substances were disposed of." Situations may arise, however,
where a corporation, which previously had owned or operated a
hazardous waste facility, now transfers corporate ownership to
another corporation. In such cases, it is important to determine
whether the liability of the predecessor corporation's action
regarding the disposal of hazardous waste is also transferred
to the successor corporation. 24/
Issue
What is the extent of liability for successor corporations
under CERCLA?
ŁV The discussion that follows is equally applicable to
successor corporations of generators and transporters
associated with hazardous substances released from CERCLA
facility.
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Summary
When corporate ownership is transferred from one cor-
poration ?to another, the successor corporation is liable for
the acts of its predecessor if the new corporation acquired
ownership by merger or consolidation. If, however, the
acquisition was through the sale or transfer of assets, the
successor corporation is not liable unless:
a) The purchasing corporation expressly or
impliedly agrees to assume such obligations;
b) The transaction amounts to a "de facto" consoli-
dation or merger;
c) The purchasing corporation is merely a continu-
ation of the selling corporation; or
d) The transaction was fraudulently entered into
in order to escape liability.
Notwithstanding the above criteria, a successor corpora-
tion may be held liable for the acts of the predecessor
corporation if the new corporation continues substantially
the same business operations as the selling corporation.
Discussion
The liability of a successor corporation, according to
traditional corporation law, is dependent on the structure of
the corporate acquistion. 2V Corporate ownership may be
transferred in one of three ways: 1) through the sale of stock
to another corporation; 2) by a merger or consolidation with
another corporation; or 3) by the sale of its assets to another
corporation. 26/ where a corporation is acquired through the
"purchase of aTl of its outstanding stock, the corporate
entity remains intact and retains its liabilities, despite
25/ See N.J. Transp. Dep't v. PSC Resources, Inc., 175 N.J.
Super. 447, 419 A.2d 1151 (Super. Ct. Law Div. 1980).
26/ Note, Torts - Product Liability - Successor Corporation
Strictly Liable for Defective Products Manufactured by
the Predecessor Corporation, 27 Villanova L.R. 411, 412
(1980)(citations omitted) [hereinafter cited as Note,
Torts - Product Liability].
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the change of ownership." 27/ By the same token, a purchasing
corporation retains liability for claims against the predecessor
company if the transaction is in the form of a merger or con-
solidation. 28/ Where, however, the acquisition is in the form
of a sale or other transference of all of a corporation's assets
to a successor corporation, the latter is not liable for the
debts and liabilities of the predecessor corporation. ŁV
There are four exceptions to this general rule of non-
liability in asset acquisitions. A successor corporation
is liable for the actions of its predecessor corporation if
one of the following is shown:
1) The purchaser expressly or impliedly
agrees to assume such obligations;
2) The transaction amounts to a "de facto"
consolidation or merger;
3) The purchasing corporation is merely a
continuation of the selling corpor-
ation; or
4) The transaction is entered into fraudulently
in order to escape liability. 30/
The application of the traditional corporate law approach
to successor liability has in many instances led to particularly
N.J. Transp. Dep't v. PSC Resources, Inc., 175 N.J.
Super. 447, 419 A.2d 1157 (Super. Ct. Law Div. 1980).
ŁŁ/ id. A merger occurs when one of the combining corpor-
ations continues to exist; a consolidation exists when
all of the combining corporations are dissolved and an
entirely new corporation is formed.
29/ see N.J. Transp. Dep't v. PSC Resources, Inc., 175 N.J.
Super. 447, 419 A.2d 1151 (Super. Ct. Law Div. 1980),
citing, Jackson v. N.J. Manu. Ins. Co., 166 N.J. Super.
488, 454 (Super. Ct. App. Div. 1979), cert, denied, 81
N.J. 330 (1979).
' i
30/ Id., Note, Torts - Product Liability, supra note, 26 at
413 n. 15-18.
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harsh and unjust results, especially with respect to product
liability.cases. 31/ Therefore, in an effort to provide an
adequate remedy and to protect injured consumers, courts
have broadened the exemptions to the general rule by either
modifying or recasting the "de facto" and "mere continuation1
exemptions to include an element of public policy. 32/
Hore recently, however, the general rule has been aban-
doned altogether by several jurisdictions and, in essence, a
new theory for establishing successor liability has evolved
based upon the similarity of business operations. 33/ The
new approach has been cast by one court in the following way:
"[W]here...the successor corporation acquires
all or substantially all of the assets of the
predecessor corporation for cash and continues
3V See McKee v. Harris-Seybold Co., 109 N.J. Super. 555,
264 A.2d 98 (Super. Ct. Law Div. 1970), aff'd per curiam,
118 N.J. Super. 480, 288 A.2d 585 (Super. Ct. App. Div.
1972); Kloberdanz v. Joy Mfg. Co., 288 F.Supp. 817 (D.
Colo. 1968).
32/ See N.J. Transp. Dep't v. PSC Resources, Inc., 175 N.J.
Super. 447, 419 A.2d 1151 (Super. Ct. Law Div. 1980);
See also, Knapp v. North Am. Rockwell Corp., 506 F.2d
361 (3d Cir. 1974), cert, denied, 421 U.S. 965 (1975);
Cyr v. B. Offen t Co., 501 F.2d 1145 (1st Cir. 1975);
Turner v. Bituminous Gas Co., 397 Mich. 406, 244 N.W.2d
873 (1976).
33/ The theory has also been referred to as the "product-
line" approach. In adopting this new approach to
successor liability, some courts have abandoned the
traditional rule of non-liability in asset acquisitions.
See e.g., Ray v. Alad Corp., 19 Cal. 3d 22, 560 P.2d
3, 136 Cal. Rptr. 574 (1977). Other courts have con-
sidered the new approach as,an exemption to the general
rule. See e.g., Daweko v. Jorgensen Steel Co., 290 Pa.
Super. Ct. 15, 434 A.2d 106 (1981); Note, Torts - Product
Liability, supra note, 26 at 418 n. 38. And, a few
jurisdictions have rejected the new approach. See
Travis v. Harris Corp., 565 F.2d 443 (7th Cir. 1977);
Tucker v. Paxson Mach. Co., 645 F.2d 620 (8th Cir. 1981).
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-14-
essentially the same manufacturing operation
as the predecessor corporation the successor
remains liable for the products liability claims
of its predecessor."
This theory of establishing successor liability differs
from the "de facto" and "mere continuation" exemptions in that
the new approach does not examine whether there is a continuity
of corporate structure or ownership (e.g., whether the predecessor
and successor corporation share a common director or officer).
Instead, according to the new theory, liability will be imposed
if the successor corporation continues^essentially the same
manufacturing or business operation as its predecessor corporation,
even if no continuity of ownership exists between them. 35/
Until recently, this new approach for establishing successor
liability was confined mostly to product liability cases.
However, a recent New Jersey decision extended its application
to the area of environmental torts. The Superior Court of New
Jersey, in N.J. Transportation Department v. PSC Resources,
Inc. 36/f rejected the traditional corporate approach to
successor liability where the defendant and its predecessor
corporation had allegedly discharged hazardous wastes. The
court reasoned that the underlying policy rationale for
abandonment of the traditional approach in defective product
cases is applicable to environmental torts. Therefore, the
court held that a corporation which purchased assets of another
corporation and engaged in the practice of discharging hazar-
dous waste into a state-owned lake is strictly liable for
present and previous discharges made by itself and the prede-
cessor corporation because the successor continued the same
waste disposal practice as its predecessor.
4*-x t
34/ Ramirez v. Amstead Indus., Inc.,-171 N.J. Super. 261, 278,
408 A.2d 818 (Super. Ct. App. Div. 1979), aff'd, 86 N.J.
332, 431 A.2d 811 (1981).
IV See Ray v. Alad Corp., 19 Cal. 3d 22, 560 P.2d 3, 136 Cal.
Rptr. 574 (1977); some form of acquisition, however, is
still required. See Meisal v. Modern Press, 97 Wash.
2d 403, 645 P.2d 693.
36/ 175 N.J. Super. 447, 419 A.2d 1151 (Super. Ct. Law Div.
1980);
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A similar "continuity of business operation" approach has
been used in cases involving statutory violations. *'/ The
Ninth Circuit, for example, held in a case involving the Federal
Insecticide, Fungicide, and Rodenticide Act [FIFRA] 38/r that
•EPA's authority to extend liability to successor corporations
stems from the purpose of the statute it administers, which is
to regulate pesticides to protect the national environment." 39/
Furthermore, the court noted that "[t]he agency may pursue the
objectives of the Act by imposing successor liability where it
will facilitate enforcement of the Act." 40/ After establishing
that there had been violations of FIFRA by the predecessor
corporation, the court found that there was substantial continuity
of business operation between the predecessor and successor
corporations to warrant imposition of successor liability.
Although CERCLA is not primarily a regulatory statute,
public policy considerations and the legislative history of
the Act clearly indicate that federal law would be applicable
to CERCLA situations involving successor liability. *V
Therefore, it is reasonable to assume that courts wouTd similarly
adopt the federal "continuity of business operation approach"
in cases involving CERCLA.
Conclusion
— - -.-..— *
In establishing successor liability under CERCLA, the
!!/ See Golden State Bottling Co. v. *NLRB, 414 U.S. 168, 94
S.Ct. 414, 38 L.Ed2d 388 (1973); Slack v. Havens, 522
F.2d 1091 (9th Cir. 1975). v
7 U.S.C. 5136 et^ seq.
Oner II, Inc^ v. United -Spates Environ. Protection
Agency, 597 F.2d 184, 186 (9th Cir. 1979).
id.
See discussion, supra, n. 19; One of Congress1 primary
concerns in enacting CERCLA was to alleviate the vast
national health hazard created by inactive and abandoned
disposal sites. See e.g., Remarks of Rep. Florio, 126
Cong. Rec. H. 9,154 (Sept. 19, 1980), 126 Cong. Rec.
H. 11,773 (Dec. 3. 1980).
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Agency should initially utilize the "continuity of business
operation" approach of federal law. However, to provide
additional support or an alternative basis for successor
corporation liability, the Agency should be prepared to apply
the traditional exemptions to the general rule of non-liability
in asset acquisitions.
cc: A. Janes Barnes, General Counsel
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*
3 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
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BACKGROUND
For.approximately three years, OECM and its predecessors
have relied primarily on the use of the automated DOCKET
as the official Agency record of the number of referrals of
civil cases to Headquarters, the number of referrals to the
Department of Justice, and as the tracking system for the
current status of active judicial enforcement cases. For the
most part, the DOCKET system has proved to be very satisfactory,
provided an effort is made to maintain the information in the
system up-to-date. The system currently reflects the best
information available about our judicial enforcement system.
The information in the DOCKET system also serves as a
measure used in the Strategic Planning and Management
System (SPMS) and, therefore, the crediting of certain
activities provides measures used to evaluate Regional
offices. Because information in DOCKET is used for this
purpose, we must be certain we are properly crediting the
activities of the Regional offices, and that everyone with
responsibilities in these areas knows the ground rules for
the system.
MULTI-FACILITY REFERRALS
THE DOCKET SYSTEM WILL MAINTAIN BOTH A "FACILITY" AND A
"CASE" COUNT, AND THE REGIONAL OFFICES WILL BE GIVEN CREDIT
FOR REFERRALS ON THE "FACILITY" BASIS. THIS GIVES THE
AGENCY FLEXIBILITY IN ITS APPROACH TO COUNTING REFERRALS
AND AN ADDITIONAL DIMENSION IN QUANTIFYING THE EXTENT OF
OUR JUDICIAL ENFORCEMENT PROGRAM.
DISCUSSION; Cases against multiple facilities owned or
operated by the same defendant may be and frequently are
joined by the Regions into one referral, or if made the
subject of separate referrals, are frequently joined into
the same case by the Department of Justice or the courts.
The question then becomes whether those cases are to count
as one referral or multiple referrals, depending on the number
of facilities.
There are several compelling and logical reasons for
counting such referrals on a facility basis, rather than
strictly on the case basis, at least insofar as internal
Agency record-keeping is concerned. The resources required
to discover, develop and manage these cases must generally
be considered on the facility basis, since each facility is
usually separate and unique, and requires being addressed
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-3-
independently regardless of whether they are consolidated
into the same proceeding because of commonality of the
parties. ' In addition, the Regions can easily achieve
credit for a referral on each facility on the case basis
by preparing separate referrals for each facility. This
procedure, however, would only achieve an expenditure of
additional time and paperwork, which should not be encouraged.
On the other hand, it would be impossible to use a
facility basis of counting referrals to the exclusion of
the case basis. There are occasions when the number of
cases referred or pending by EPA are significant, and it
would be misleading to the public, Congress or other interested
persons to represent the Agency as having the number of
cases pending which are reflected by the number of facilities
involved.
Since DOCKET currently maintains information on both a
case and a facility basis, it is a simple matter to continue
to utilize that information, and for internal purposes, to
credit the Regional offices with the number of referrals
represented by the number of facilities included in the
cases. An additional advantage to maintaining this dual
system of counting is that it would give the Agency, the
public and Congress a more accurate picture of the extent
of the Agency's enforcement program.
ADDING COUNTS TO PREVIOUSLY REFERRED CASES
THERE IS A PRESUMPTION THAT CREDIT FOR A NEW REFERRAL WILL
NOT BE GIVEN FOR THE ADDITION OF A NEW CAUSE OF ACTION TO
AN EXISTING CASE. IF A REGIONAL OFFICE THINKS CREDIT FOR A
NEW REFERRAL IS APPROPRIATE IN SUCH A PARTICULAR SITUATION,
THEN THE BURDEN IS ON THAT REGIONAL OFFICE TO DEMONSTRATE:
(1) THAT THE NEW CAUSE OF ACTION IS SIGNIFICANTLY DISTINCT
AND DIFFERENT FROM THE ORIGINAL CAUSE(S) OF ACTION; (2) THE
EVIDENCE REQUIRED TO SUPPORT THE NEW CAUSE OF ACTION IS SO
DIFFERENT THAT SUBSTANTIAL ADDITIONAL RESOURCE REQUIREMENTS
ARE IMPOSED UPON THE REGIONAL OFFICE; AND (3) THAT THE NEW
CAUSE OF ACTION ARISES FROM CIRCUMSTANCES UNFORESEEN AT THE
TIME OF THE ORIGINAL REFERRAL. THE ADDITION OF NEW CAUSES
OF ACTION UNDER $107 OF CEP.CLA TO CASES WHICH WERE ORIGINALLY
FILED FOR INJUNCTIVE RELIEF UNDE& RCRA OR CERCLA WILL
NORMALLY QUALIFY AS EXCEPTIONS.
DISCUSSION: The issue of whether to allow an additional
referral due to the addition of a cause' of action which was
not included in the original referral arises most frequently
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in hazardous waste cases which were initiated as suits for
injunctive relief under the "imminent and substantial endanger*
ment" provisions of RCRA and/or CERCLA, and which are subsequently
being converted to cost-recovery actions under 5107 of CERCLA
due to cleanup of the site.
Occasionally, however, causes of action are authorized
to be added to pending cases which were inadvertently
omitted in the initial referral, or which are intended to
merely fortify the legal basis for the Government's claims,
but.do not require significant additional evidence to support
those claims.
It is difficult to expound a universal policy stating
that the addition of a cause of action to an existing suit
will or will not be counted as a new referral under all circum-
stances. The test here should be: Is the new cause of action
so distinct and different from the original cause(s) of action,
and is the evidence required to support the new cause of action
so different, that in deference to the resource requirements
imposed upon the Region to support it, the Region should be
credited with a new referral? In addition, the circumstances
under which the case was originally referred without the
new cause of action should be examined to determine whether,
in the exercise of good legal judgment and diligence, the
new cause of action should have been included at that time.
Under the test set forth above, credit should usually
be given for the addition of a cause of action under S107
of CERCLA, since those normally change the objectives of
the case from those originally involved, and raise substantial
new legal and evidentiary requirements.
Decisions as to whether the presumption has been
overcome for these cases will be made by the appropriate
Associate Enforcement Counsel in consultation with the
Regional Counsel. If the AEC and RC cannot agree, the issue
should be raised to me and the appropriate Regional
Administrator for resolution.
CONTEMPT ACTIONS
THE REGIONAL OFFICES CURRENTLY RECEIVE AND WILL CONTINUE TO
RECEIVE CREDIT FOR A NEW REFERRAL FOR THE REFERRAL OF
CONTEMPT ACTIONS FOR VIOLATION OF CONSENT DECREES.
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DISCUSSION: There are several reasons why this activity
should be, credited as a new referral. First, the monitoring
of consent decrees to ensure compliance by the defendant is
an Agency priority, and should be encouraged. To refuse to
credit the Regions with referrals for contempt of those
decrees discourages the assignment of resources to those
monitoring efforts.
Second, the amount of resources necessary to conduct
the monitoring of consent decrees may be as substantial as
that required to determine the initial violation upon which
the decree is based.
Third, from a "bookkeeping" viewpoint, the original
case is removed from the active case docket when the consent
decree is entered, and placed on the consent decree docket.
Therefore, there is no problem of "double counting" of such
cases on the active docket. In any event, contempt cases
are usually so noted in the docket, and can be related to
the original cases if necessary for historical counting
purposes.
AMENDMENT'OR MODIFICATION OF CONSENT DECREES
A PRESUMPTION EXISTS THAT MODIFICATION OR AMENDMENT TO AN
EXISTING CONSENT DECREE WILL NOT RESULT IN CREDIT FOR A NEW
REFERRAL. HOWEVER, THE REGION CAN REBUT THAT PRESUMPTION
AND GAIN CREDIT FOR A NEW REFERRAL BY DEMONSTRATING (1)
THAT THE MODIFICATION OR AMENDMENT IS SIGNIFICANT AND
SUBSTANTIAL IN RELATION TO THE CASE AS A WHOLE; (2) THAT IT
AROSE FROM CIRCUMSTANCES WHICH WERE UNFORESEEN AT THE TIME
OF ENTRY OF THE ORIGINAL DECREE; AND (3) THAT IT REQUIRED
THE COMMITTMENT OF SUBSTANTIAL AND SIGNIFICANT RESOURCES TO
INVESTIGATE AND NEGOTIATE IN EXCESS OF THOSE WHICH WOULD HAVE
BEEN EXPENDED FOR TRACKING COMPLIANCE WITH THE ORIGINAL
DECREE.
DISCUSSION; As in the case with the addition of a new cause of
action to a pending suit, it is difficult to state a simple
policy regarding the credit of a new referral for an amendment
to an existing consent decree. The resources required to
determine or confirm the need fojr such amendments varies
from case to case, and with the complexity of the problem
giving rise to the necessity to amend the decree. Some
amendments arise from circumstances which were unanticipated
at the time the original decree was entered, and can be very
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complex and resource-intensive. In such cases, it would be
fair to encourage the Regional Offices in their tracking of
consent decrees to allow them credit for a new referral for
an amendment to a consent decree. However, most amendments
are merely to extend a deadline for completion of construction
or for-other minor adjustments, and do not require a signi-
ficant committment of resources to negotiate or accomplish
over those which would be required to track the performance
of the original decree.
. Decisions as to whether the presumption has been over-
come in these cases will be made by the appropriate Associate
Enforcement Counsel in consultation with the Regional Counsel.
If the AEC and RC cannot agree, the issue should be raised
to me and the appropriate Regional Administrator for resolution.
REFERRALS RETURNED TO REGIONS AND RE-REFERRALS
REFERRALS ARE CREDITED IN THE QUARTER INDICATED BY THE DATE
SHOWN ON THE COVER MEMORANDUM FROM THE REGIONAL OFFICE.
RETURNED REFERRALS WILL NOT BE DEDUCTED FROM REGIONAL
TOTALS. THEREFORE, ADDITIONAL CREDIT WILL NOT BE GIVEN FOR
RE-REFERRALS. A SEPARATE CATEGORY OF CASES RETURNED TO THE
REGION WILL BE MAINTAINED BY DOCKET AND OECM WILL TRACK THE
NUMBER OF CASES RETURNED ON A QUARTERLY AND REGIONAL BASIS.
CASES RETURNED TO THE REGIONS AND NOT RESUBMITTED TO HEADQUARTERS
WITHIN 90 DAYS WILL BE RECLASSIFIED AS CONCLUDED CASES DECLINED
BY EPA.
DISCUSSION; After a case has been referred from the
Regional Office to Headquarters or the Department of Justice
(depending on whether it is a regular or "direct" referral),
that case may be returned by Headquarters or DOJ to the
Regional Office for a number of reasons, usually for addi-
tional development.
At the present time, the DOCKET maintains data on a
category of cases designated as "Returned to Region", so that
there is a record of returned referrals. These cases are
counted as active enforcement cases because the category is
used for cases Headquarters expects will be pursued after
further development. Therefore,,we have never attempted to
deduct those returned cases from the Regional totals in
arriving at a net number of referrals.
Deducting returned cases from the number of referrals
leads to many questions as to whether the case will be
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-7-
deducted jfrom the total of referrals for the fiscal year
and/or quarter in which the case was originally referred,
or the year in which the case was returned to the Region,
if those years are not the sane. This could lead to a
constant readjustment of the number of referrals for any
given quarter.
Due to the usual demand for specific and definite
numbers of referrals from within and without the Agency at
the conclusion of a quarter or a fiscal year, it is highly
desirable to have a relatively definite number of referrals
ascertained as soon as possible after the conclusion of the
quarter and fiscal year. In order to achieve this, and for
simplicity in recordkeeping, it is preferable to maintain
on a regional and quarterly basis the number of referrals
and the number of cases returned to that Region. This will
provide an indication of the number of cases a specific
Region has referred which required return for further
development, without requiring re-calculation of quarterly
and fiscal year referral numbers.
However, we need to be certain that these cases do
not continue to be counted as active cases when they are
not resubmitted by the Regions. Therefore, if a case
returned to the Region is not resubmitted to Headquarters
within 90 days, the case will normally be reclassified as a
concluded case which was declined by EPA.
EFFECTIVE DATE FOR CASE REFERRALS
CASE REFERRAL PACKAGES (OR COPIES THEREOF, IN THE CASE
OF DIRECT REFERRALS) ARE CREDITED IN THE QUARTER AND FISCAL
YEAR ACCORDING TO THE DATE OF THE COVER MEMORANDUM FROM THE
REGION, PROVIDED THAT THE REFERRAL PACKAGE IS RECEIVED
BY HEADQUARTERS WITHIN FIVE CALENDAR DAYS FOLLOWING THE
CLOSE OF A FISCAL QUARTER.
DISCUSSION; While this is admittedly a minor issue, it is
one which has proved troublesome in the past, particularly
at the end of fiscal years and quarters. Some referral
packages dated immediately prior to the end of the fiscal
year or of a quarter have been received well into the
following months, necessitating a readjustment in the
number of referrals over a considerable time period. Due to
the interest in these numbers within and without the Agency,
it is desirable that those numbers be fixed as soon as
possible following the end of a quarter.
Use of the date on the package would not necessarily
resolve the concerns expressed above, and would still
require readjustment in referral numbers over a period of
time due to delays in the mail service. Use of the date on
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which the package was received in Headquarters may not be
entirely fair to the regional offices due to delays in mail
service and to potential delays in internal Headquarters
mail distribution. The allowance of a reasonable specified
time beyond the end of the quarter would allow for delays
in mail service, and seems fair to both Headquarters and
regional concerns.
Regions do not receive credit for any referral unless
and until that referral is received and entered in the
DOCKET system. This is particularly true of "direct"
referrals, where a copy of the referral package must be
forwarded to Headquarters to be entered into the DOCKET.
EFFECTIVE DATE OF THIS GUIDANCE
THE PROCEDURES SET OUT IN THIS GUIDANCE WILL BECOME
EFFECTIVE BEGINNING WITH REFERRALS RECEIVED IN THE FOURTH
QUARTER OF FISCAL YEAR 1984.
cc: Associate Enforcement Counsels
OECM Office Directors
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WASHINGTON. D.C. 20460
JAN Łi
0"
fcr,. o=--.
cr •.••-. ~v i
MEMORANDUM
SUBJECT: .Policy and Procedures on Parallel Proceedings at the
Environmental Prelection Agency
FROM: Courtney M. Price'vJD'U*'^>Y i Xxu-t^
Assistant Administrator
Office of Enforcement and
Compliance Monitoring
TO: Assistant Administrators
Regional Administrators
Regional Counsels
Director, NEIC
Background
Civil or administrative actions pursued simultaneously with a
criminal investigation or prosecution of the same party(ies), and
relating to the same essential sutject matter, are called parallel
proceedings. Violations of most of the environmental laws within
EPA's jurisdiction carry the potential of both civil and criminal
sanctions. EPA's enforcement options therefore often include
administrative proceedings or referral to the Department of Justice
for civil or criminal litigation. In addition, EPA will occasion-
ally seek to conduct a criminal investigation in a matter also
requiring a remedial response to eliminate environmental contamin-
ation or potential human health hazards. In short, the potential
for parallel proceedings at EPA is high.
In the face of due process arguments to the contrary, it has
been held unequivocally that parallel proceedings are constitu-
tional. Recognizing that the government often must pursue both
civil and criminal routes to protect the public, the Supreme Court
in United States v. Kordel. 397 U.S. 1 (1970), established the
legality of parallel proceedings. This case involved an in rem
action for the seizure of certain misbranded drugs, as well as a
criminal referral with respect to those responsible for the mis-
branding. The Court pointed out that prompt action in both the
civil and the criminal courts can be necessary to protect the
public interest. This same rationale can be used in the environ-
mental field, where misconduct may create a danger which can only
be addressed by a civil or administrative action for remedial
relief. Proceeding civilly, however, does"not foreclose pursuit of
other remedies, such as a criminal prosecution, where appropriate.
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It would stultify enforcement of Federal law to require
a governmental agency such as the FDA invariably to
choose either to forego recommendation of a criminal
prosecution once it seeks civil relief, or to defer
civil proceedings pending the ultimate outcome of a
. criminal trial.
397 U.S. at" 11 . Since Kordel, other courts have sanctioned paral-
lel proceedings barring "special circumstances".
- The SEC cannot always wait for Justice to complete the
criminal proceedings if it is to obtain the necessary
proir.pt civil remedy; neither can Justice always await
the conclusion of the civil proceedings without endan-
gering its criminal case. Thus, we should not block
parallel investigations by these agencies in the absence
of "special circumstances" in which the nature of the
proceedings demonstrably prejudices substantial rights
of the investigated party or of the government.
SEC v. Dresser Industries, Inc.. 628 F.2d 1368, (D.C. Cir.Ken bane)
cert, denied, ^9 U.S. 993 (I960).
Notwithstanding the legality of parallel proceedings, a number
cf circumstances militate in favor of keeping such dual actions to
a minimum. Inherent in the simultaneous pursuit of civil, adminis-
trative and/or criminal sanctions is'the possibility of legal chal-
lenges and administrative difficulties. First, it would be an
inappropriate use of Agency resources,, as well as a questionable
exercise of enforcement discretion, for EFA to seek criminal and
civil sanctions in every case where both are legally permissible.
Because of considerations discussed within this memorandum, separ-
ate staffs will often be used for the civil/ administrative action
and the parallel criminal investigation. The number of EPA staff
involved in an enforcement action against one party may, therefore,
be doubled while not substantially changing the nature of the relief
obtained.
Further, when parallel actions are initiated by the govern-
ment, J/ defense allegations of abuse often arise. Whatever the
substance of the charges, the delay and effort occasioned by the
need to respond to and litigate these charges can counterbalance
the potential benefits of the dual actions. Typical objections to
parallel proceedings include the.allegation that the government
I/ Parallel actions may develop when a defendant in a criminal •
case initiates a civil suit against the government or when an
individual or corporation who is the plaintiff in a civil action
becomes a defendant in a criminal case involving the same matters,
In such a situation, even though the government has not created
the dual actions, similar parallel proceedings issues arise.
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has acted deceptively by seeking more than one type of relief
without promptly notifying the party involved, or that the
government is using one of the actions to assist the other.
Conversely, the government may find that the criminal defendant
seeks to obtain information about the prosecution of the criminal
case through the use of civil discovery devices.
Because of the above stated resource and legal considerations,
parallel proceedings should be undertaken only when clearly warranted
by the facts of a given situation.
Issue
Under What Circumstances Are Parallel Proceedings Warranted?
Policy
In light of the limited criminal investigative resources
available to the Agency, criminal investigations and referrals
are necessarily limited to situations of the most significant
and/or flagrant environmental misconduct. Accordingly, the
issue of parallel proceedings should arise in only a limited
number of cases.
Within this limited category of cases, if the environmental
misconduct is ongoing, or if circumstances otherwise necessitate
injunctive relief or remedial action, a parallel proceeding is
appropriate. Where there is no need for injunctive or remedial .
relief, and the purpose of a civil/administrative action would
be limited to the assessment of penalties for past misconduct,
parallel proceedings will normally be avoided and the civil
action held in abeyance while the criminal enforcement process
proceeds. In such situations, Agency officials should monitor
the criminal case closely to ensure that it is developed as
expeditiously as possible.
Discussion
This policy supports the use of parallel proceedings
in those situations in which the public interest necessitates
dual actions, i.e., cases involving significant and flagrant
environmental misconduct that also require injunctive/remedial
response through the civil enforcement apparatus. However,
where the purpose of enforcement is limited to the assessment
of penalties, the simultaneous pursuit of civil as well as
criminal sanctions through parallel proceedings is discouraged.
By"so limiting the use of parallel proceedings, unnecessary
legal challenges as well as resource strains will be avoided.
In addition, the policy recognizes the reluctance frequently
manifested by Federal prosecutors to penalize a defendant through
both administrative/civil and criminal sanctions.
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Finally, by deferring the civil proceedings until after the com-
•pletion of the criminal action in penalty-only cases, the government
will'be able to take advantage of the doctrine of res judicata.
That is, identical issues which have been resolved in the govern-
ment's favor in the criminal case do not have to be relitigated in
the civil action. On the other hand, any issues or verdicts con-
trary to the government's position in the criminal case will not
bind the court hearing the subsequent civil case because of the
lesser burdep which the government (if plaintiff) must bear in a
civil action.
Issue
In Those Situations in Which Parallel Proceedings Are Necessary,
When Should Notice of the Existence of the Parallel Proceeding Be
Given to the Conmcn Subjects?
Policy
Notice that a criminal investigation has commenced, or that a
referral for criminal prosecution has been made, is not a legal
requirement. A target does not have to be made aware of the en-
forcement steps that the Agency is pursuing or contemplating. However,
the Agency should consider giving notice of the potential for a
criminal prosecution to the common subject(s) at the initiation of
every parallel proceeding. A statement advising the suhject(s)
that "the Agency is free to choose civil, criminal or administra-
tive enforcement actions and taking one type of action does not
preclude pursuing another type of action" may be appropriate.
Whether or not the Agency elects to affirmatively make such a
statement, this type of answer should be given routinely to ques-
tions from targets about the existence of, or the potential for,
parallel actions. The Agency must be careful never to affirm-
atively misrepresent the potential for a criminal case.
Discussion
Before a criminal investigation is initiated, the Special
Agent from the Office of Criminal Investigations routinely contacts
the Regional Counsel and the regional program office in the region
where the investigation is to be conducted. This is to discover
whether administrative/civil enforcement action is pending or contem-
plated. This initial coordination is meant to ensure that a paral-
lel proceeding does not occur without the knowledge of appropriate
Agency personnel. When a civil action commences, it would likewise
be advisable for the Regional Counsel and/or regional program
offices to check with the Office of Criminal Investigations if
there is any question of the existence of a criminal investigation.
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Ui. (.lie puiem.i.a.1. tot yai aj.j.c.1 V.AVJLJ. auu wj. imina j. y«.w —
ceedings should be given to the subject(s), either orally or in
writing (depending upon the previous methods of communication in
the particular matter or upon the nature of the situation), when-
ever it will not unduly jeopardize pursuit of the criminal inquiry.
The timing, as well as the mechanics of how and who should give
the notice, should be decided jointly by the attorneys and agents
assigned to the criminal enforcement case and the Agency personnel
assigned to the civil/administrative action. Unilateral notifica-
tion without coordination by personnel assigned to either case can
disrupt and?confuse the parallel investigations and should not
occur.
While not always legally mandated, this prophylactic measure
allows the common subject to protect himself against self-incrimina-
tion by moving the court for a stay, a protective order, or other
relief in the civil proceeding, while shielding the government
from subsequent charges of deception or abuse of the civil proceed-
ing. In cases in which parties have testified or have' provided
incriminating information, courts have been critical of the govern-
ment where there have been previous misrepresentations or unfulfilled
promises of immunity. See, e.g., SEC v. ESM Government Securities,
Inc., 645 F.2d 310 (5th Cir. 1981); United States v. Parrott, 248
F. Supp. 156 (D.D.C. 1965); United States v. Guerina, 112 F. Supp.
126 (E.D. Pa. 1953); United States v. Rand, 308 F. Supp. 1231
(N.D. Ohio 1970).
If the Agency chooses not to notify the target of the start of
a criminal investigation, the execution of a criminal search warrant,
tho presentation of credentials by an EPA criminal investigator in
an interview context, or the issuance of grand jury subpoenas'wi11
accomplish the same function by making the criminal focus obvious.
So long as the Agency has not previously misrepresented the poten-
tial for a criminal action, it can not be accused of being deceptive
just because the targets have not been notified until the investi-
gation has become public knowledge.
If directly asked whether a criminal investigation has been
undertaken or whether such an investigation (or prosecution) is
contemplated, an EPA employee may of course decline to reply.
However, in some circumstances a court may find that silence
constitutes a form of deception. (See below). An alternative
response would be a statement that "the Agency is free to choose
civil, criminal or administrative enforcement actions and taking
one type of action does not preclude pursuing another type of
action". It is clear, however, that the government cannot deny
the existence of a criminal investigation or referral or mislead
the party into believing that cooperation with the civil action
will preclude a criminal case, if this is untrue. SEC v. ESM
Government Securities, Inc., supra. In United States v. Fields,
592 F.2d 638, 643 '(2d Cir. 1978), cert, denied, 442 U.S. 917 (1979),
the Court criticized the conduct of two SEC employees who (while
negotiating a consent decree in a civil suit) failed to-disclose
that a criminal referral had been made. The District Court con-
cluded that defense counsel had interpreted the SEC's silence
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- 6 -
regarding the referral as an agreement not to make the referral.
Perhaps the key fact in the case, however, was that the defense
had made it expressly known that it was entering into the decree
to avoid a referral. Although the Second Circuit held that dis-
missing the indictment was too severe a sanction, it did chastise
the SEC for its conduct and warned against such misleading silence
in the future. Id. at 647. See also United States v. Rodman,
519 F.2d 1058 (1st Cir. 1975).
In a series of cases involving the Internal Revenue Service,
courts have held that, in the absence of affirmative misrepresen-
tations, a taxpayer has not established that information was
obtained through deceit and trickery. Specifically discounting
silence as per se fraud, one court stated that "silence can only
be equated with~Traud where there is a legal or moral duty to
speak or where an inquiry left unanswered would be intentionally
n-isleading". United States v. Prudden, 424 F.2d 1021 (5th Cir.
1970). In United States v. Tonahill, 430 F.2d 1042, 1044 (5th Cir.
1970), the Court found that, when specifically asked whether they
were investigating a crime, IRS Special Agents did not engage in
impermissible trickery when they did not directly answer that a
"criminal investigation" was occurring but iristead stated that
"their function was to reconcile the laige discrepancies to see if
they were the result of innocent errors".
Where circumstances require that notice of the potential
fo: a criminal prosecution be delayed until the investigation
(either field or grand jury) is completed ,_2/ then not only must the
government be extremely caieful not -to mislead the party but infor-
mation provided by the common subject in the parallel civil
proceeding will generally not be transferred to the attorneys and
agents involved in the criminal inquiry. The transfer of infor-
mation from a civil to a parallel criminal enforcement action
when the party is unaware that he may be the subject of a criminal
investigation has not been directly addressed and condemned by the *
courts._3/ However, such a procedure would invite allegations of
improper use of the civil proceedings to further the criminal
investigation.
_2/ If there is strong likelihood of evidence destruction, witness
intimidation, or ongoing criminal activity, reasons certainly
exist to delay disclosure or notice of the potential for a criminal
investigation or referral. ,
_3/ Where defendants have been aware of the parallel proceeding and
have objected in advance to their statements being transferred from
an agency to the Department of Justice, courts have nevertheless
approved such transfers. SEC v. Dresser 'Industries, Inc. , supr a.
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Should Miranda-type Warnings Be Given Under Any Circumstances To
'Subjects of Parallel Proceedings?
Policy
Full Miranda warnings are unnecessary in non-"custodial" set-
tings. However, modified warnings should be given before a common
subject is required to provide evidence testimonial in nature^/
during civil proceedings. That is, warnings should occur before
a common subject is deposed, and before an administrative hearing
or trial is held at which a party may testify. An administrative
request for business documents is not considered "testimony"
and need not trigger a disclosure of a criminal investigation.
Schmerber v. California, 384 U.S. 757 (1966).
Discussion
These warnings are separate and apart from the "notice" dis-
cussed earlier in this memorandum. "Notice" pertains to a state-
ment from the Agency that a matter may result in both criminal and
civil action by the Agency. It is issued to avoid criticism that
tt-.p Agency has acted deceptively or that it has misrepresented the
nature of its contacts with an individual or company. "Warnings",
on the other hand, are a response to the Fifth Amendment consider-
ations which arise whenever an individual is compelled by the
government to provide information. It informs the individual that
his responses may be used against him in subsequent proceedings.
Full Miranda warnings, or advice of rights, are not required,
or advisable, in connection with the compulsion of testimony in
the civil proceeding, since the testimony is not elicited in a
"custodial" setting._5/ A warning which will adequately inform the
party may consist of a simple statement that violations of environ-
mental statutes may subject an individual to both civil and crimi-
nal sanctions and that statements made by the individual may be
used against him in any further proceedings. Warnings are crucial
when the subject is asked to give testimonial evidence and she/he
Ł/ "Testimonial evidence" is that which is communicative in nature
or "from the witness's own mouth." Private papers (such as a
diary) or oral testimony come within the zone of privacy protected
by the Fifth Amendment but ordinary documents or books which may
include incriminating information do not. United States v. Fisher,
425 U.S. 391 (1976).
_5/ The Supreme Court in United States v. -Miranda, 384 U.S. 436 (1966),
held that a suspect's Sixth Amendment right to the assistance of
counsel attaches as soon as government agents take him into custody
or otherwise restrict his freedom of action in any significant way.
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-8-
is -not represented by counsel. The Court in United States v.
Kordel, supra, expressly distinguished the facts in that landmark
case from the situation in which a party is unrepresented by coun-
sel in the civil proceeding, noted the Fifth Amendment considera-
tions at .issue, and implied that it might have held differently if
the defendant had not had counsel.
Issue
Where Parallel Proceedings Are Initiated, When and How Should
Staffs Be Separated?
Policy
If the defendant or target is on notice of the existence of
the parallel proceeding and no grand jury work has begun, staffs
may be interchanged.
Once a grand jury investigation is initiated, personnel with
access to grand jury materials should have no further involvement
in the parallel civil action in light of the statutory requirements
pe:taining to grand jury secrecy. Because almost every environ-
mental criminal case will require grand jury investigation prior-
to indictment, and because at least partial separation of civil
an^ criminal staffs will be required after the initiation of the
g.and jury investigation, it is usually best to separate staffs
at the time of initiation of the parallel proceeding.
Pi scus-sion
The separation of staffs does not require a separation of
supervisory personnel so long as grand jury material is not dis-
closed to any supervisor who is involved in supervising staff
working on the civil or administrative proceedings.^/ Supervisors
who are not involved in the civil/administrative proceedings and
who believe it necessary to become familiar with the grand jury
investigation, should raise this issue with the Justice Department
prosecutor supervising the case.
Ł/ Even the recent Supreme Court opinions (United States v. Sells
Engineering, Inc., U.S. , 33 Crim. L. Rep. 3243 (June 30,
1983); United sTates v. Bagcot, U.S. , 33 Crim. L. Rep.
3259 (June 30, 1983)), which have directly discussed the topic of
"grand jury material" have not clarified what is meant by this
term. Broadly interpreted, "grand jury material" might be consid-
ered to include not only the testimony of grand jury witnesses and
the documents subpoenaed by the grand jury but also any of the
substantive matters which are the subject of the grand jury investi-
gation.
-------
Separating the staffs which are working on each action can also
negate the defense argument that one proceeding is being used to
develop the other. Although the courts have approved parallel
proceedings, there must be a legitimate purpose for each proceeding.
A "legitimate purpose" is found where independent goals exist
for each action and neither action is being pursued solely to
advance or strengthen the other. Public interest considerations
justifying parallel proceedings would disappear should the government
abuse its power to initiate both actions by interfering with the
independent integrity of either action. A separation of staffs
avoids the conflict in roles that may be
involvement in both of the actions. The
or of an abuse of the grand jury process
civil action) is also avoided by the early separation
perceived if there is
appearance of a conflict
(by assisting in a parallel
of
staffs.
Issue
May Information Developed in Criminal Proceedings Be Provided for
Use in Parallel Civil Proceedings and Vice-versa?
Pol icy
Grand jury material may never be passed to anyone working on
a parallel civil proceeding. In fact, grand jury material may
never be discussed with anyone who is not on the so-calTed H6(e)"
list. Fed. R. Crim. P. 6(e). Information developed in criminal
field investigations may be passed to civil staff for their use.
However, such information must be clearly documented to show where
ar.3 when the information was obtained so that allegations of grand
jury abuse may be countered at a subsequent date. The Agency
should be prepared to demonstrate that the information passed to
the civil side from personnel working on the criminal case was not
ohtained by the use of a grand jury.
Information obtained in civil cases from subjects of a paral-
lel proceeding may be provided to personnel working on the criminal
case, if the subjects were on notice of the potential for a parallel
criminal proceeding when the information was provided by the subjects,
and if warnings were given prior to testimonial situations. If
the subjects were not on notice or were not given warnings, then
information provided by them should not be turned over to personnel
working on the criminal case.
Discussion
nal p
Where there has been no notice (of the potential for a c
iroceeding) or warnings (of the Fifth Amendment considera
•imi-
cons iderat ions
naj. proceeding) or warnings (or tne rittn Amendment consiaeratio
or there are other indicia of potential unfairness to the target
t
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information obtained in a civil proceeding from the subject of a
parallel criminal proceeding should be isolated and withheld. See
United States v. Kordel, supra, 397 U.S. at 12.
In SEC v. Dresser Industries, Inc.r supra, the Court did not
object to the transfer of information from government attorneys
involved ijn civil/administrative matters to prosecutors on the
criminal sid^e. "Where the agency has a legitimate non-criminal
purpose for the investigation, it acts in good faith under the
[United States v. LaSalle National Bank, 437 U.S. 298 (1978)]
conception even if it might use the information gained in the
investigation for criminal enforcement purposes as well." 628
F.2d at 1387 (footnote omitted). Notice was not an issue in this
case because the company records were subpoenaed simultaneously by
both the SEC and the grand jury, placing the company on notice of
the parallel proceeding. Moreover, it would not be legitimate
for information to go in the opposite direction (i.e., information
obtained through a grand jury passing to the civil/administrative
enforcement authorities)^/
Finally, it should be noted that the bar on exchange of infor-
mation froir. a civil to a criminal proceeding pertains only to
information obtained (1) from the common target--corporate or indi-
vidual, and (2) after the initiation of the parallel proceeding.
Information in the possession of the government prior to the initi-
ation of a criminal investigation may be freely exchanged.
Information sought by an agency which has already been subpoe-
naed by a grand jury, while not available from the members of the
prosecution team, can be obtained by the civil side of the agency '
by use of civil discovery devices, if it is sought for its own
sake and not for the purpose of uncovering what took place before
the grand jury. United States v. Interstate Dress Carriers, Inc.,
280 F.2d. 52, 54 (2d Cir. 1960), cited ijn SEC v. Dresser Industries,
Inc. , supra, 628 F.2d at 1382; accord, Capitol Indemnity Corp. v~I
First Minnesota Construction Co., 405 F. Supp. 929 (D. Minn. 1975);
United States v. Saks and Co., 426 F. Supp. 812 (S.D.N.Y. 1976);
Davis v. Romney, 55 F.R.D. 337 (E.D. Pa. 1972). This is consistent
with the general proposition that, so long as each investigation
and proceeding has it own legitimacy, then the tools available to
each may be used accordingly.
2/ The Federal grand jury exists for and can satisfy only one
purpose—to enforce Federal criminal law. Information developed
in the course of a grand jury proceeding may not be made available
for use in administrative or civil proceedings absent a court, order.
Fed. R. Crim. P. 6(e). A "special circumstance" indicating an im-'
proper use of a parallel proceeding is the use of a grand jury to
help a civil or administrative case. United States v. Proctor &
Gamble Co., 356 U.S. 677, 683 (1958); United States v. John Doe,
341 F. Supp. 1350 (S.D.N.Y. 1972).
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-11-
Issue
To What Extent May the Government Use Civil Discovery Tools When
There Is a_ Pending Parallel Action?
Policy *
So long as the above stated policies on notice, warnings,
and separate staffing are pursued, the government may use
whatever civil discovery tools are available to pursue legitimate
aims in the civil proceeding. Civil discovery may not, however,
be used to pursue evidence solely relevant to the criminal
case. At the court's discretion, stays or protective orders
may be granted upon a party's motion.
Discussion
The presumption under the Federal Rules of Civil Procedure is
that discovery should be available to each party to the fullest
extent possible. On the other hand, the Federal Rules of Criminal
Procedure lirrit discovery to only that information specifically
covered within the rules. Prior to trial, a criminal defendant
has the right to obtain from the government any statements alleged
to have been made by the defendant to agents of the government,
the defendant's criminal record, and documents, tangible objects
anj any reports of examinations or tests which the government
intends to use as evidence in its case in chief.
In a criminal action, this difference (in discovery rules) can
lea-i to an unfair advantage being gained, by either side, through
the use of the more liberal civil discovery rules. For example,
information about defense witnesses, strategy, and anticipated
testimony (otherwise unavailable prior to a criminal trial) can be
uncovered by the government through the use of interrogatories,
depositions and/or requests to produce. Similarly, a defense
attorney, by initiating a civil suit against the government or as
a respondent in a civil suit, could take advantage of the civil
discovery rules to depose government witnesses and file interroga-
tories to reveal information normally unavailable to a criminal
defendant. Therefore, courts have been sensitive to the need to
ensure the integrity of each branch of the parallel proceeding.
In SEC v. Dresser Industries, Inc., supra, the Court held
that the limitations placed on the use of the IRS administrative
summons enunciated in United States v. LaSalle National Bank,
supra, are inapplicable to the SEC. , Accord, SEC v. First Financial
Group of Texas, 659 F.2d 660 (5th Cir. 1980). Under LaSalle, the
IRS is precluded from using its administrative summons authority
after a case has been referred to the Department of Justice for
criminal prosecution. EPA, like the SEC but unlike the IRS, pos-
sesses statutory authority to pursue investigations of both a
civil and a criminal nature. Therefore, while the IRS has no prac-
tical authorized purpose for issuing a summons after a referral
-------
to Justice, if EPA decides to pursue both civil and criminal cases,
•its summons authority continues undiminished even after referral,
provided that the purpose is to develop the civil action. SEC v.
Dresser Industries, Inc., supra, 628 F.2d at 1381.J3/ Many of the
IRS cases can be viewed as sui generis because of the particular
statutory authority under which that agency operates.
Courts historically have been sympathetic to claims by both
the government and individuals that civil discovery rules are
being exploited to benefit the party in the criminal proceeding.
In deciding the appropriate remedy, the court will weigh the public
and the plaintiff's interest in the speedy resolution of the civil
suit against the potential for prejudice to the defendant and the
interest in maintaining the procedural integrity of the criminal
justice system. SEC v. Control Metals Corp., 57 F.R.D. 52 (S.D.N.Y.
1972); Campbell v. Eastland, 307 F.2d 478 (5th Cir. 1962), cert.
denied, 371 U.S. 955 (1963). Both the government and individuals/
corporations have successfully sought stays of civil proceedings.
Unless the interests of justice weigh against the equitable relief
of a stay, courts generally will grant stays of the entire civil
proceeding, or at least of the discovery process, pending the dis-
position of the criminal matter. Protective orders can also be
er.ployed to prevent the transfer of information between branches
of government or to limit the scope of the information transferred.
Difficulties can be anticipated in EPA-initiated cases when
the government must oppose a stay because of its need to proceed
civilly and criminally. The defendant will seek to use civil dis-
covery to depose government witnesses while resisting the govern-
ment's attempts to uncover defenses. If the government can negoti-
ate a stipulated injunctive relief together with a stay of the
remainder of the civil suit pending the criminal disposition, some
of these difficulties may be resolved. Otherwise, a mixture of
partial stays and narrowly framed protective orders may be the
only alternative.
Protective orders or stays (Fed. R. Civ. P. 26(c),(d)) may be
granted at the discretion of the trial judge. At least one court
has found it to be violative of due process to force the defendant
to go forward in an administrative hearing while a criminal proceed-
ing is pending. Silver v. McCamey, 221 F.2d 873 (D.C. Cir. 1965).
J5/ This is distinguishable from the situations discussed in the
EPA guidance on the "Guidelines for the Use of Administrative
Discovery Devices in the Development of Potential Criminal Cases."
In that guidance, the issues were presented in the context of
cases which were.going to be either civil/administrative or criminal
actions, but not both. If an Agency decision is made that a case
should be referred for criminal prosecution alone, then it would
be clearly improper to use administrative discovery devices, after
such referral.
-------
However, there are other alternatives to a stay, such as a narrowly
framed protective order, sealing the responses to interrogatories,
or precluding the use of the products of civil discovery at crimi-
nal trials, which can be employed instead of an all-encompassing
stay/ McSurely v. McClellan, 426 F. Supp. 664 (D.D.C. 1970).
Claims of Fifth Amendment privilege are an oft-cited reason
for a request for a stay. If a civil defendant is "compelled" to
testify, h~is testimony cannot later be used to incriminate him.
But a civil defendant is not compelled to testify merely because
the fact-finder may draw adverse inferences from his failure to
testify. Baxter v. Palroigiano, 425 U.S. 308, 317-18 (1976). Some
court* have granted Stays where a defendant must either invoke the
Fifth Amendment, and thereby jeopardize his civil/administrative
case, or provide information which may be used against him in the
criminal case. United States v. American Radiator and Standard
Sanitary Corp., 272 F.Supp.691 (W.D.Pa.), rev'd on other grounds,
383 F.2d 201 (3d Cir. 1967), cert, denied, 390 U.S. 922 (1968);
Dienstag v. Bronsen, 49 F.R.D. 327 (S.D.N.Y. 1970); Perry v.
McGuire, 36 F.R.D. 272 (S.D.N.Y. 1964); Paul Harrigan and Sons v.
Enterprise Animal Oil Co., 14 F.R.D. 333 (E.D. Pa. 1953).
Other courts have sympathized with the defendant but refused
to grant protective orders, a stay or other relief despite Fifth
Amendment issues. In SEC v. Rubinstein, 95 F.R.D. 529 (S.D.N.Y.
1982), the Court cited a statutory authorization to»pass informa-
tion from the SEC to the Department of Justice, and prior judicial
approval of such action in United States v. Fields, supra, and in
SEC v. Dresser Industries, Inc., supra, and denied the motion to
seal discovery.
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31
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I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
^/ WASHINGTON. D.C. 20460
1984
OFFICE OF
ENFORCEMENT AND
COMPLIANCE MONITORING
MEMORANDUM
SUBJECT:
FROM:
TO:
Guidance for Implementing EPA's Contractor
Listing Authority
Courtney M. PriceV_4/u-/x-s
Assistant Administrator tor Enforcement
and Compliance Monitoring
Assistant Administrator for Air and Radiation
Assistant Administrator for Water
Assistant Administrator for External Affairs
Assistant Administrator for Policy, Planning
and Evaluation
General Counsel
Inspector General
Regional Administrators
I. Purpose
The purposes of this document are to briefly describe:
1) EPA's contractor list.ing authority, 2) the interim agency
policy prior to final promulgation of revisions to the listing
regulations at 40 C.F.R. Part 15, and 3) the proposed revisions
to 40 C.F.R. Part 15. Further, the document gives some general
guidance on when to bring a contractor listing action, and
explains how the Agency's Strategic Planning and Management
System will account for listing actions as enforcement responses,
•
II. Background
The Clean Air Act1 and the Clean Water Act^, as implemented
by executive order^ and Federal regulation,4 authorize EPA to
I/ Clean Air Act, Section 306, 42 U.S.C S7606.
2/ Clean Water Act, Section 508, 42 U.S.C. $1368
3/ Executive Order 11738, September 12, 1973
4/ 40 C.F.R. Part 15
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-2-
preclude certain facilities from obtaining government contracts,
grants, or loans, if the facility is violating pollution control
standards. Commonly called "contractor listing", this program
assures that each Federal Executive Branch agency undertakes
procurement and assistance activities in a—manner that will
result in effective enforcement of the air and water acts.
Contractor listing also ensures that owners of noncomplying
facilities do not receive an unfair competitive advantage in
contract awards based on lower production costs.
In the past, EPA has seldom used contractor listing in
the enforcement program. Currently, one facility (Chemical
Formulators, Inc., Nitro, West Virginia)5 is on the List of
Violating Facilities. Contractor listing can be an effective
enforcement tool, and EPA policy calls for Regional Office
enforcement personnel to actively consider the viability of
this option to obtain compliance with Clean Air Act and Clean
Water Act standards.
With a view toward improving and streamlining the contractor
listing program, EPA has proposed revisions to 40 C.F.R Part 15
(copy attached). The proposed revisions provide additional
procedural protections to facilities which are the subject of
listing recommendations and expand the range of situations which
may trigger the listing sanction.
III. Interim Listing Policy While Regulations Undergoing Revision
A. Grounds; By statute, EPA must list a facility which
has given rise to a person's conviction under Section 309(c)
of the CWA or Section 113(c)(l) of the CAA, and that person
owns, leases, or supervises such facility (mandatory listing).
Otherwise, prior to promulgation of the revised Part 15 regulations,
EPA may list a facility only on the following grounds set forth
in the current Section 15.20(a)(l) (1979) (discretionary listing).
Specifically, EPA may list a facility only if there is continuing
or recurring non compliance at the facility and
0 The facility has given rise to an injunction,
order, judgment, decree, or other form of civil
ruling by a Federal, State, or local court issued
as a result of noncompliance with clean air or
clean water standards, or the facility has given
rise to a person's conviction in a State or local
court for noncompliance with clean air or clean
water standards, and that person owns, leases, or
supervises the facility.
0 The facility is not in compliance with an order
under Section 113(a) of the CAA or Section 309(a)
of CWA, or has given rise to the initiation of
I/ 46 F.R. 16324, March 12, 1981
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court action under Section 113(b) of the CAA or
309(b) of the CWA, or has been subjected to
equivalent State or local proceedings to enforce
clean air or clean water standards.
B. Procedures; Prior to promulgation of the revised
regulations/ EPA will employ the procedures proposed in the
revised regulations for discretionary listing and the procedures
in the current regulations [Section 15.20(a ) (2)(1979)] for
mandatory listing, explained below. EPA will use the procedures
proposed in the revised regulations for discretionary listing
because these regulations provide greater procedural protections
than the current regulations6. Because the revised mandatory
listing; regulations authorize less procedural protections than
the current procedures, however, EPA will continue to employ
the current regulations until the revised mandatory listing
procedures are legally effective. i- '
We recognize that some confusion may result during the
interim period, so you should not hesitate to contact the EPA
Listing Official? to resolve any problems. .Upon promulgation
of the final rules, we will revise this guidance as necessary.
IV. The ^Listing program and the Proposed Revisions to Part 15
Even under the revised regulations as proposed, the basic
framework for listing actions is substantially the same as
established by the present regulations. The proposed revisions
to Part 15 clarify the distinctions between mandatory and
discretionary listing, and establish some different procedures
for each type of listing.8
A. Mandatory Listing
If a violation at a facility gives rise to a criminal
conviction under Section 113(c)
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automatically upon a conviction. As soon as a conviction occurs,
the Associate Enforcement Counsel for Criminal Enforcement
must notify the Listing Official.
The Listing Official is responsible for sending written"
notification to the facility and to the Federal Register. Both
documents must state the basis for and the effective date of
the mandatory listing.
Removal from the mandatory list may occur only if: (1) the
Assistant Administrator certifies that the facility has corrected
the condition that gave rise to the criminal conviction'under
Section 113(c)(l) of the CAA or Section 309(c) of the CWA, or
(2) a court has overturned the criminal conviction.
B. Discretionary Listing
1. Basis for Discretionary Listing
Discretionary listing may occur if the recommending person
can show a "record of continuing or recurring noncompliance,"
and that a requisite enforcement action has been initiated or
concluded. The proposed revisions broaden the discretionary
listing authorities by including additional statutory provisions
under which EPA can bring enforcement actions that can trigger
applicability. Under the proposed regulations/ any of the
following enforcement actions may serve as a basis for listing
if there is also a record of continuing or recurring noncompliance
at the facility:
1. A federal court convicts any person under Section
113(c)(2) of the CAA, if that person owns, leases,
or supervises the facility.
2. A State or local court convicts any person of a
criminal offense on the basis of noncompliance
with clean air or clean water standards if that
person owns, leases, or supervises the facility.
3. A federal, state, or local court issues an injunction,
order, judgment, decree, or other form of civil
ruling as a result of noncompliance with clean air
or clean water standards at the facility.
4. The facility is the recipient of a Notice of
Noncompliance under Section 120 of the CAA.
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5. The facility has violated an administrative order
under: ~~ __
Section 113(a) CAA
Section 113(d) CAA
Section 167 CAA
Section 303 CAA
Section 309(a) CWA
6. The facility is the subject of a district court
civil enforcement action under:
Section 113(b) CAA
Section 204 CAA
Section 205 CAA
Section 211 CAA
Section 309(b) CWA
2. Initiating the Discretionary Listing Process
The listing process begins with a recommendation to list
filed by a "recommending person" with the Listing Official.
Recommending persons include any member of the public, Regional
Administrators, the Assistant Administrator for Air and Radiation,
the Assistant Administrator for Water, the Associate Enforcement
Counsel for Air, the Associate Enforcement Counsel for Water,
and Governors. The recommendation to list is a written request
that: (1) states the name, address, and telephone number of
the recommending person, (2) describes the facility, and (3)
describes the alleged continuing or recurring noncompliance,
and the parallel enforcement action. Section 15.11(b).
The Listing Official must review the recommendation to
determine whether it meets the requirements of Section 15.1Kb).
If it does, the Listing Official then must transmit the
recommendation to the Assistant Administrator for Enforcement
and Compliance Monitoring who shall in his/her discretion,
decide whether to proceed with the listing action. If he/she
decides to so proceed, the Listing Official then must notify
the facility of the filing of a recommendation to list. The
facility then has 20 working days to request EPA to hold a
listing proceeding. If the facility requests the proceeding,
the Listing Official must schedule it and notify the recommending
person and the facility of the date, time, and location of the
proceeding. The Assistant Administrator must designate a Case
Examiner to preside over the listing proceeding.9
j>/ If the facility does not make a timely request for a listing
proceeding, the Assistant Administrator will determine whether
to list the facility based upon the recommendation to list
and any other available information.
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3. The Discretionary Listing Proceeding
The discretionary listing proceeding is informal, i.e.,
there are no formal rules of evidence or procedure. The
recommending person and the facility may be represented by
counsel, present relevant oral and written evidence and, with
the approval of the Case Examiner, either party may call,
examine, and cross-examine witnesses. The Case Examiner may
refuse to permit cross-examination to the extent it would:
(1) prematurely reveal sensitive enforcement information which
the government may legally withhold, or (2) unduly extend the
proceedings in light of the usefulness of any additional
information likely to be produced. Section 15.13(b). A trans-
cript of the proceeding along with any other evidence admitted
in the proceeding constitutes the record. For the Case Examiner
to approve a recommendation to list, the recommending person
must persuade the Case Examiner that he/she has proved each
element of a discretionary listing by a preponderance of the
evidence.
The Case Examiner must issue a written decision within 30
working days after the proceeding. The Listing Official then
must notify the recommending person and the facility of the Case
Examiner's decision. The party adversely affected may appeal
the decision to the General Counsel. The appeal, which is
filed with the Listing Official, must contain a statement of
(1) the case and the facts involved, (2) the issues, and (3)
why the decision of the Case Examiner is not correct based on
the record of the proceeding considered as a whole. The General
Counsel must issue a final decision, in writing, as soon as
practicable after reviewing the record. The Listing Official
then must send written notice of the decision to the recommending
person and to the facility, and must publish the effective
date of the listing in the Federal Register if the General
Counsel upholds the Case Examiner's decision to list.
Removal from the list of Violating Facilities can occur in
any of the following circumstances:
1. Upon reversal or other modification of the criminal
conviction decree, order, judgment, or other
civil ruling or finding which formed the basic
for the discretionary listing, which reversal or
modification removes the basis for the listing;
2. If the Assistant Administrator for OECM determines
that the facility has corrected the condition(s)
which gave rise to the listing;
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3. If, after the facility has remained on the
discretionary list for one year on the basis of
Section 15.11UH4) or Section 15.11(a)(5) and
a basis for listing under Sections 15.11(a)(l),
(2), or (3) does not exist, then removal is
automatic; or
4. If the Assistant Administrator for OECM has
approved a plan for compliance which ensures
correction of the cohdition(s) which gave rise to
the discretionary listing.
The removal process begins with a request for removal
filed with the Listing Official by the original recommending
person or by the facility. The Assistant Administrator for
OCCM then must review the request and issue a decision as soon
as possible. The Listing Official then must transmit the
decision to the requesting person.
If the Assistant Administrator for OECN denies a request
for removal, the requesting person may file a written request
for a removal hearing. A Case Examiner designated by the
Assistant Administrator then conducts a removal hearing. The
removal hearing is an informal proceeding where formal rules
of evidence and procedure are not applicable. The parties to
the proceeding may be represented by counsel and may present
written and oral testimony, in addition, with the approval of
the Case Examiner, the parties may call, examine, and cross-
examine witnesses to the extent that any further information
produced will be useful in light of the additional time such
procedures will take. The Case Examiner must base his/her
written decision solely on the record of the removal hearing.
Within 20 working days of the date of the Case Examiner's
decision, the party adversely affected may file with the Listing
Official a request for review by the Administrator. The
Administrator will determine if the Case Examiner's decision
is correct based upon the record of the removal hearing considered
as a whole. The Administrator then must issue a final written
decision.
V. Increased Use of Discretionary Listing.
We believe that the revisions to the discretionary listing
regulations are only the first step in the improvement of our
contractor listing program as an effective enforcement tool.
The second step, actually using the listing authority, will
gain for us the necessary experience in this area. Note that
for purposes of the Strategic Planning and Management System,
regions may show recommendations to list as enforcement actions
taken in tracking regional progress toward bringing significant
violators into compliance.
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-8-
Currently, our lack of experience in this area inhibits
our ability to offer explicit guidance based upon known formulas.
However, we believe that some general points are worth noting.
Listing is a very severe sanction and, therefore, should
usually be reserved for the most adversarial situations. If
such an adversarial situation already involves time consuming
litigation, however, recommending persons employed by EPA
should consider the additional resource requirements associated
with both the listing proceeding and the potential judicial
challenges to the administrative action. When enforcement
litigation is in progress, recommending persons employed by
EPA should also consider whether the listing proceeding will
provide grounds for collateral attack against EPA's case, and
whether such attack would be a benefit or hindrance to successful
prosecution of the underlying judicial litigation.
In some cases, listing may be an effective alternative to
litigation. Note specifically that EPA has the option of using
listing as an enforcement response if a facility fails to
comply after being subject to an administrative or judicial
order. Note further that EPA may bring a listing proceeding
based on present "recurring or continuing" violations and a
prior judicial or administrative judgment even if the prior
action did not address the present violations. Specifically,
EPA should consider listing actions for violating facilities
for which previously concluded enforcement actions have not
stopped the violator from continuing practices constituting a
pattern of chronic noncompliance.
Listing may be especially effective if the value of the
facility's government contracts, grants, and loans exceeds the
cost of compliance. If the value of these assets is less than
the compliance costs, listing probably would not provide adequate
incentive to comply. On the other hand, if the value of such
assets is considerably greater than the cost of compliance, a
listing proceeding could conceivably impede progress toward
resolving the environmental problem because the facility is
more likely to vigorously contest the listing both at the
administrative and Federal court levels. Therefore, we believe
that listing will be most appropriate for "middle ground cases"
for which there is an ongoing parallel action, i.e., ones
where the government contract, grants and loans for the facility
in question exceed compliance costs but not considerably.
Finally, a listing proceeding is likely to be more
efficient/ and therefore more effective, if the continuing
or recurring noncompliance involves unambiguous and clearly
applicable clean air or clean water standards. If the standards
are fraught with complications pertaining to the appropriate
compliance test method or procedure, for example, the listing
proceeding is probably ill-suited to handle such iscuos.
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Prior to filing a recommendation to list, recommending
persons employed by EPA must consult with my office to ensure
that a recommendation to list comports with national policy
and priorities and is otherwise appropriate. We expect that
experience, as usual, will prove to be the best teacher. As
we gain experience and after final promulgation of the revisions,
we will provide further guidance.
Attachment
cc: Assistant Attorney General for Land and Natural Resources'
Associate Enforcement Counsels
OECM Office Directors
Regional Counsel I-X
Steve Ramsey, Chief Environmental Enforcement Section, DOJ-—
Director, Stationary Source Compliance Division ..
Director, Enforcement Division, Office of Water
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ENVIRONMENTAL PROTECTION AGENCY
40 C.F.R. Part 15.
Administration of the Clean Air Act and the Clean Water Act with
Respect to Federal Contracts* Loans, and Grants.
AGENCY: Environmental Protection Agency (EPA)
ACTION: - .Proposed rule. k 5 3fi " 3
SUMMARY: EPA is responsible for implementing several suspension
and debarment programs. This action is to revise 40 C.F.R.
Part 15, the regulation that establishes a special air and water
enforcement-related suspension and debarment program. Commonly
referred to as the "contractor listing program", this program
•
makes a facility.ineligible for contracts, grants, or loans
issued by an Executive Branch agency if the facility has a record
of poor compliance with Federal clean air or clean water standards.
EPA is revising 40 C.F.R. Part .15 to ensure that the program
•../
established by this regulation is consistent with existing legal
requirements and is more easily understood.
DATES: Comments. Comments must be received on or before (45 days
from publication in Federal Register).
ADDRESSEES: Comments: Comments should be submitted (in duplicate
if possible) to: Central Docket Section (LE-131), Attention:
Docket Number G-84-01, U.S. Environmental Protection Agency,
401 M St., S.W., Washington. D.C. 20460.
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Docket Number G-84-01, containing supporting information used in
developing the proposed standard, is available for public inspection
and copying between 8:00 a.m. and 4:00 p.m., Monday through Friday,
at EPA's Central Docket Section, West Tower Lobby, Gallery 1,
Waterside Mall, 401 M St., S.W., Washington, D.C. 20460. A
reasonable fee may be charged for copying.
FOR FURTHER INFORMATION CONTACT: Edmund J. Gorman, Listing Official,
Office of Enforcement and Compliance Monitoring, Environmental
Protection Agency, Room 32191 (LE-130A), 401 M St. S.W.,
4~1$'Wl*
Washington, D.C. 20460. Telephone: (202) 4'r€»7SC3.
SUPPLEMENTARY INFORMATION: Section 306 of the Clean Air Act
(42 U.S.C. 57401 et seq.) and Section 508 of the Clean Water Act
(33 U.S.C. 51251 et seq.), as implemented by Executive Order
11738 (38 F.R. 25161, September 12, 1973) authorize EPA to
establish procedures for ensuring that Executive Branch agencies
conduct their procurement and assistance programs in a manner
consistent with the President^"responsibility of ensuring compliance
with the Clean Air Act (CAA) and the Clean Water Act (CWA).
On April 16, 1975, EPA promulgated 40 C.F.R. Part 15 to
provide procedures for ensuring that Executive Branch agencies
conduct their procurement and assistance programs in accordance
with the President's responsibility for ensuring compliance .with
CAA and CWA standards. 40 C.F.R. Part 15 accomplishes this by
establishing the List of Violating Facilities, a list of facilities
which are ineligible for any nonexempt contract, grant, or loan
issued by an Executive Branch agency. 40 C.F.R. Part 15 provides
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procedures for placing a facility on this list because of a criminal
conviction under section 113(c)(l) of the CAA or section 309(c)
of the CWA or because of a record of continuing or recurring
noncompliance with CAA or CWA standards. 40 C.F.R. Part 15 also
provides procedures for removing a facility from the list where
there is sufficient indication that the CAA or CWA noncompliance
problems at the facility have been or are being corrected.
The purposes of this revision to 40 C.F.R. Part 15 are: •
— to conform the language of the regulation more closely
with statutory authority.
-- to make even more certain that EPA provides adequate
procedural due process for facilities which are candidates
for placement on the discretionary List of Violating
Facilities. The revision does not provide for a formal
evidentiary hearing. Instead, it provides for fairness
and flexibility through an informal proceeding.
-- to improve readability arvd make the regulatory requirements
easier to understand.
— to reflect EPA organisational changes made since the
regulation was promulgated.
The &o»t noteworthy revisions include:
-- Raking automatic the listing of facilities that gave
rise to cnrun.^i convictions under section 113{c) (1). CAA
*nd s«»ct:on 309(c) CWA as required by those statutes,
-- adding as a basis for discretionary listing facilities
with continuing or recurring violations a-fc-facilities^ 4C
which have been the subject of enforcement actions under
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sections 113(d), 120, 167, 204, 205, 211, and 303 of the
CAA, and
— stating more explicitly the procedural opportunities
which EPA will afford facilities party to listing or
removal actions.
Executive"Ofder 12291
Under Executive Order 12291, EPA is required to judge whether
a regulation is "major" and therefore subject to the requirement
of a Regulatory Impact Analysis. This is not & major regulation
because it will not entail a major increase in costs or prices
for consumers, individual industries, Federal, State, or local
Government agencies, or geographic regions.
Regulatory Flexibility Act
EPA has determined, pursuant to the Regulatory Flexibility
Act, that this regulation will not have a significant economic
impact on a substantial number of small entities because the
decision to "list" any facility is made on a case-by-case basis.
/s/ WILLIE D. RV:KILŁ:-:.V:S
William D. Ruckleshaus
v.-.i Administrator
Date
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PART 15—ADMINISTRATION OF THE CLEAN AIR ACT AND THE
CLEAN WATER ACT WITH RESPECT TO CONTRACTS, GRANTS,
AND LOANS
Subpart A—Administrative Matters
Sec.
15.1 Policy and Purpose
15.2 Scope
15.3 Administrative responsibility
15.4 Definitions
15.5 Exemptions
Subpart B—Procedures for Placing a Facility
on the List of Violating Facilities
15.10 Mandatory listing
15.11 Discretionary listing
15.12 Notice of filing of recommendation to "list and
opportunity to have a-listing proceeding
15.13 Listing proceeding
15.14 Review of the Case Examiner's decision
15.15 Effective date of discretionary listing
15.16 Notice of listing
Subpart C—Procedures for Removing a Facility from
the List of Violating Facilities
15.20 Removal of a mandatory listing
15.21 Removal of a discretionary listing
15.22 Request for removal from
the List of Violating Facilities
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15.23 Request for removal hearing
15.24 Removal hearing __
15.25 Request for review of the decision of the
Case Examiner
15.26 Effective date of removal
15.27 Notice of removal
' Subpart D—Agency Coordination
15.30 Agency responsibilities
15.31 Agency regulations
15.32 Contacting the Assistant Administrator
15.33 Investigation by the Assistant Administrator
prior to awarding a contract, grant, or loan
15.34 Referral by the Assistant Administrator to
«
the Department of Justice
Subpart E—Miscellaneous
15.40 Distribution of the List of Violating Facilities
15.41 Reports
Authority: 42 U.S.C. S 7401 et seq.; 33 U.S.C. § 1251 et_ seq.;
Executive Order 11738 of September 10, 1973 (38 F.R. 28161).
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SUBPART A—ADMINISTRATIVE MATTERS
S 15.1 Policy and purpose. _____
(a) It is the policy of the Federal Government to improve and
enhance environmental quality. This regulation is issued to
ensure that each agency in the Executive Branch of the Federal
Government empowered to enter into contracts for the procurement
of goods,-materials, or services or to extend Federal assistance
by way of grant, loan, or contract undertakes such procurement
and assistance activities in a manner that will result in effective
— enforcement of the Clean Air Act and the Clean Water Act.
(b) This regulation establishes the List of Violating Facilities,
procedures for placing a facility on the List of Violating Facilities,
removing a facility from the List of Violating Facilities, and
procedures for ensuring that agencies in the Executive Branch of
the Federal Government undertake their procurement and assistance
activities in a manner that will result in effective enforcement
of the Clean Air Act and the Clean Water Act.
S 15.2 Scope
(a) This regulation applies to all agencies in the Executive
Branch of the Federal Government which award contracts, grants,
or loans. This regulation also applies to contractors and
subcontractors and to recipients of funds under grants and loans.
The debarment or suspension that results from a mandatory or
discretionary listing is facility specific and does not npply to
other facilities of the same company.
(b) This regulation only applies to contracts, grants, or loans
involving the use of facilities located inside the UniteO Spates.
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(c) The rights and remedies of the Government hereunder are not
exclusive and do not affect any other rights or remedies provided
by law. —
S 15.3 Administrative responsibility.
(a) Except for the power to issue rules and regulations, the
Assistant Administrator for Enforcement and Compliance Monitoring
and the General Counsel are delegated authority and assigned
responsibility for carrying out the responsibilities assigned to
the Administrator of the Environmental Protection Agency under
Executive Order 11738.
l(b) The Assistant Administrator and the General Counsel are
authorized to redelegate the authority conferred by this regulation.]
S 15.4 Definitions.
*
Administrator means the Administrator of the United States
Environmental Protection Agency or his or her designee.
Agency means any department, agency, establishment, or
instrumentality in the Executive Branch of the Federal Government,
including corporations wholly owned by the Federal Government
which award contracts, grants, or loans.
Air Act means the Clean Air Act, as amended (42 U.S.C.
S 7401 ojt seq.).
Air Pollution Control Agency means any agency which is
defined in section 302(b) or section 302(c) of the Air Act.
Applicant means any person who has applied but has not yet
received a contract, grant, or loan and includes a bidder or
proposer for a contract which is not yet awarded.
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Assistant Administrator means the Assistant Administrator
for Enforcement and Compliance Monitoring, United States
Environmental Protection kgency, or his or her successor.
Borrower means any recipient of a loan as defined below.
Case Examiner means an EPA official familiar with pollution
control issues who is designated by the Assistant Administrator
to conduct a listing or removal proceeding and to determine
whether a facility will be placed on the List of Violating
Facilities or removed from such list.
Clean air standards means any enforceable rules, regulations,
guidelines7, standards, limitations, orders, controls, prohibitions,
or other requirements which are contained in, issued under, or
otherwise adopted pursuant to the Air Act or Executive Order
11738, an applicable implementation plan as described in section
110(d) of the Air Act, an approved implementation procedure or
plan under section lll(c) or section lll(d), respectively, of
the Air Act or an approved implementation procedure under section
112(d) of the Air Act.
Clean water standards means any enforceable limitation,
control, condition, prohibition, standard, or other requirement
which is established pursuant to the Water Act or contained in a
permit issued to a discharger by the United States Environmental
Protection Agency, or by a State under an approved program, as
authorized by section 402 of the Water Act, or by a local government
to ensure compliance with pretreatment regulations as required
by section 307 of the Water Act. :
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rompliance means compliance with clean air standards or
clean water standards. For the purpose of these regulations-^-^
compliance also shall mean compliance with a schedule or plan
ordered or approved by a court of competent jurisdiction, the
United States Environmental Protection Agency, or an air or
water pollution control agency, in accordance with the requirements
of the Air Act or the Water Act and regulations issued pursuant
thereto.
Contract means any contract or other agreement made with an
Executive Branch agency for the procurement of goods, materials,
or services (including construction), and includes any subcontract
made thereunder.
Contractor means any, person with whom an Executive Branch
agency has entered into, extended, or renewed a contract as
defined above, and includes subcontractors or any person holding
a subcontract.
Facility means any building,-plant, installation, structure,
nine, vessel or other floating craft, location or site of operations
owned, leased, or supervised by an applicant, contractor, grantee,
or borrower to be used in the performance of a contract, grant,
or loan. Where a location or site of operations contains or
includes more than one building, plant, installation, or structure,
the entire location or site shall be deemed to be a facility,
except where the Assistant Administrator determines that independent
facilities are co-located in one geographic area.
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General Counsel means the General Counsel of the^ U.S.
Environmental Protection Agency, or his or her designee, and
successor.
Governor means the governor or principal executive officer
of each State.
Grant means any grant or cooperative agreement awarded by
an Executive Branch agency including any subgrant or subcooperative
agreement awarded thereunder. This includes grants-in-aid,
except where such assistance is solely in the form of general
revenue sharing funds, distributed under the State and Local
Fiscal Assistance Act of 1972, 31 U.S.C. § 1221 et_ seq.
i
Grantee means any person with whom an Executive Branch
agency has entered into, extended, or renewed a grant, subgrant,
or other assistance agreement defined under "grant" above.
List of Violating Facilities means a list of facilities
which are ineligible for any agency contract, grant or loan.
Listing Official means an"EPA 'official designated by the
Assistant Administrator to maintain the List of Violating
Facilities.
Listing proceeding means an informal hearing conducted by
the Case Examiner held to determine whether a facility should be
placed on the List of Violating Facilities.
Loan means an agreement or other arrangement under which
any portion of a business, activity, or program is assisted
under a loan issued by an agency and includes any subloan issued
under a loan issued by an agency.
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-8-
Person means any natural person, corporation, partnership,
unincorporated association, State or local government, or any
agency, instrumentality, or subdivision of such a government or
any interstate body.
Recommendation to list means a written request which has
been signed and sent by a recommending person to the Listing
Official asking that EPA place a facility on the List of Violating
Facilities.
Recommending person means a Regional Administrator, the
Associate Enforcement Counsel.for Air or the Associate Enforcement
Counsel for Water (or their successors), the Assistant Administrator
i
for Air and Radiation or the Assistant Administrator for Water
(or their successors), a Governor, or a member of the public.
State means a State, the District of Columbia, the Commonwealth
of Puerto Rico, the Virgin Islands, Guam, American Samoa, the
Commonwealth of the Northern Mariana Islands, or the Trust
Territories of the Pacific-Islands.'
Water Act means the Clean Water Act, as amended (33 U.S.C.
S 1251 e_t sea.).
Water pollution control agency means any agency which is
defined in section 502(1) or section 502(2), 33 U.S.C. S§ 1362
(1), (2), of the Water Act.
5 15.5 Exemptions
(a)(l) Transactions of 5100,000 and under. Except as provided
in section 15.5(b) below, contracts, grants, and loans not exceeding
$100,000 are exempt from these regulations. This exemption
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includes contracts for indefinite quantities as long as the
purchaser has reason to believe that the amount to be ordered in
any year under such an agreement will not exceed $100,000.
(a)(2) Assistance to abate, control, or prevent environmental
pollution. Except as provided in section 15.5(b) below, a contract,
grant, or loan will be exempt from these regulations when the
principal purpose of a contract, grant, or loan is to assist a
facility or facilities to comply with any Federal, State, or
local law, regulation, limitation, guideline, standard, or other
requirement relating to the abatement, control or prevention of
environmental pollution.
(b) The exemptions in section 15.5(a) do not apply where work
under the contract is to be performed at a facility that has
f
been placed on the List of Violating Facilities on the basis of
a criminal conviction under section 113(c)(l) of the Air Act or
section 309(c) of the Water Act, and the person^convicted owns,
supervises, or leases the facility.
.. — •-* •
(c) Authority of Agency Head to Grant Exemptions.
(1) Individual exemptions. Where an Agency head determines that
it is in the paramount interest of the United States to enter
into, renew, or extend a contract, grant, or loan in connection
with any facility that is on the List of Violating Facilities, he
or she may exempt the agreement from the provisions of this
regulation for a period of one year. The Agency head granting
the exemption shall notify the Assistant Administrator of the
exemption as soon before or after granting the exemption as may
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-10-
•• - practicable. The justification for such an exemption, or any
renewal thereof, shall fully describe the purpose of the contract,
grant, or loan and shall show why the paramount interest of the
United States requires the exemption.
(2) Class exemptions. Where an agency head determines that it
is in the paramount interest of the United States for the agency
to enter into, extend, or renew any class of contracts, grants,
or loans, he or she may exempt the class of agency contrac.ts,
grants, or loans from the provisions of this regulation by rule
or regulation after consultation with the Administrator.
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SUBPART B-PROCEDURES FOR PLACING A FACILITY ON THE
LIST OF VIOLATING FACILITIES
S 15.10 Mandatory listing.
The Listing Official must place a facility on the List of Violating
Facilties if the facility which gave rise to the conviction is
owned, leasedr or supervised by any person who has been convicted
of a criminal offense under section 113(c)(l) of the Air Act or
section 309(c) of the Water Act. The mandatory listing is
automatically effective upon conviction.
S 15.11 Discretionary listing.
(a) The Listing Official must place a facility on the List of
Violating Facilities if there is a final agency action under
section 15.12(d); 15.14(c), or 15.14(d) which determines that
there is a record of continuing or recurring noncompliance with
clean air standards or clean water standards at the facility
recommended for listing and that:
(1) A federal court has convicted any person under section
113(c)(2) of the Air Act if that person owns, leases, or supervises
a facility recommended for listing;
(2) A state or local court has convicted any person of a criminal
offense on the basis of noncompliance with clean air standards
or clean water standards if that person owns, leases, or supervises
a facility recommended for listing;
(3) A federal, state, or local court has issued an injunction,
order, judgment, decree, or other form of civil ruling as a
result of noncompliance with clean air or clean water standards
at a facility recommended for listing;
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-12-
(4) The facility has violated any administrative order issued under
section 113(a), 113(d), 167, and 303 of the Air Act or section
309(a) of the Water Act has been violated, if the violator owns,
leases, or supervises a facility recommended for listing;
(5) EPA has issued a Notice of Noncompliance under Section 120 of
the CAA as a result of noncompliance at the facility; or
(6) EPA has filed an enforcement action in court under sections
113(b), 167, 204, 205, or 211 of the Air Act or section 309(b)
of the Water Act due to noncompliance with clean air standards
or clean water standards at the facility recommended for listing.
(b) A recommendation to list from a recommending person initiates
the process for discretionary listing. A recommendation to list
must contain:
(1) The name, address, and telephone number of the person filing
• •
the recommendation;
(2) A description of the facility alleged to be in noncompliance
with clean air standards or clean water standards, including the
name and address of the facility;
(3) A description of the alleged continuing or recurring non-
compliance, including any available data and any other pertinent
information supporting the allegation of noncompliance; and
(4) A description of the criminal, civil, or administrative
action or conviction under section 15.11(a)(l), (a)(2), (a)(3),
(a) (4), or (a)(5) which is pertinent to the facility end the
alleged continuing or recurring nonconpliance.
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(c) The Listing Official shall review each recommendation to list
to ensure it complies with all of the requirements under section
15.11(b). If there is a deficiency in a recommendation the
Listing Official must return it to the recommending person for
correction. If there is no deficiency in the recommendation
to list, the Listing Official shall transmit the recommendation
• ".... '"* • •
to the Assistant Administrator. The Assistant Administrator, in
his or her discretion, may
4
(i) decline to proceed, or
(ii) designate a Case Examiner in accordance with section
< , T
15.12(a), or
i
(iii) decide to list the facility in accordance with section
(d) A recommending person may withdraw a recommendation to list
. » v
at any time before the conclusion of the listing proceeding.
The recommending person should withdraw the recommendation to
list if the conditions which gave rise to the recommendation to
list have been corrected or if the facility recommended for
• • 1 • • c. . , -.
listing is on a plan for compliance which has been approved by
cither the Assistant Administrator or the recommending person
and which will ensure that the condition(s) which gave rise to
recommendation to list will be corrected.
S 15.12 Notice of filing of recommendation to list and opportunity
to have a listing proceeding.
(a) The Listing Official shall send to the facility named in the
recommendation to list written notice that a recommendation that
. i . • ....
the facility be placed on the List of Violating Facilities has
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-14-
been filed with the Listing Official and has been transmitted to
the Assistant Administrator. Within twenty (20) working days of
the receipt of the notice, any person who owns, leases, or
supervises the facility may request the Assistant Administrator
to designate a Case Examiner to hold a listing proceeding to
determine the propriety of the proposed listing.
(b) If a listing.proceeding is requested, the Listing Official
shall schedule a listing proceeding and notify in writing the
recommending person and the person requesting the listing proceeding
of the date and time of the listing proceeding.
(c) The Listing Official shall respond to any requests from the
recommending person and the person requesting the listing proceeding
•
concerning the procedures for discretionary listing.
(d) If there is no timely request for a listing proceeding under
section 15.12(b) above, the Listing Official will place the
facility named in the recommendation to list on the List of Violating
Facilities on the basis of discretionary listing if, upon reviewing
the recommendation to list and any other available information,
the Assistant Administrator determines that there is a record of
continuing or recurring noncompliance with clean air standards
or clean water standards at the facility recommended for listing
and the requisite criminal, civil, or administrative enforcement
action has been taken or criminal conviction has occurred. Such
a determination by the Assistant Administrator constitutes final
agency action.
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-15-
S 15.13 Listing proceeding.
(a) No listing proceeding for mandatory listing. Mandatory
listing is effective upon conviction and no listing proceeding
will be provided when a facility is listed on the basis of mandatory
listing. For purposes of updating the List of Violating Facilities,
the Associate Enforcement Counsel for Criminal Enforcement shall
notify the Listing Official of the conviction as soon as it
occurs.
(b) Listing proceeding for discretionary listing.
(1) A listing proceeding for discretionary listing shall be
conducted in an informal manner without formal rules of evidence
*
or procedure. The recommending person and the person requesting
the listing proceeding under section 15.12(a) above may be
represented by legal counsel, present oral and written evidence
relevant to the proposed listing/ and, with the approval of the
case examiner, may call, ask questions of, and cross-examine
witnesses, except to the extent any testimony would prematurely
reveal sensitive enforcement information which the government
may legally withhold or would unduly extend the proceedings in
light of the usefulness of any additional information likely to
be produced. The Case Examiner may take official notice of
facts, law, and any other information available to him or her.
The Case Examiner may also request any party to supplement the
record by submitting additional information.
(2) The listing proceeding shall be transcribed, and EPA shall
wake available a transcribed record of the proceeding to any
person, ut cost upon request.
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(3) To demonstrate an adequate basis for listing a facility, the
recommending person must show by a preponderance of the evidence
that there is a record of continuing or recurring noncompliance
at the facility named in the recommendation to list and that the
requisite enforcement action has been taken.
(c) Case Examiner's decision. Not later than thirty (30) working
days after conclusion of the listing proceeding and any
supplementation of the record, the Case Examiner shall issue a
written decision on whether or not to list the facility based on
the record of the listing proceeding and shall file that decision
with the Listing Official.
(d) Notification of Case Examiner's decision. The Listing Official
shall notify in writing the recommending person and the person
who requested the listing proceeding under section 15.12(a) of
the Case Examiner's decision and of the opportunity to request
the General Counsel to review the Case Examiner's decision under
section 15.14.
S 15.14 Review of the Case Examiner's decision.
(a) Within twenty (20) working days after the Case Examiner's
decision, the party adversely affected may file with the Listing
Official a written request asking the General Counsel to reviev;
the Case Examiner's decision. The request to review the Case
Examiner's decision must contain:
(1) Ł statement of the case and the facts involved in the
recoitCT.endation to list;
(2) a statement of the issues presented by the recommendation to
list; and
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(3) a statement showing why the decision of the Case Examiner is
«?t correct based on the record of the listing proceeding
considered as a whole.
(b) The party adversely affected may raise on review only those
issues raised before the Case Examiner, unless the General Counsel
determines that there is good cause to include consideration of
any new issues.
(c) If the Listing Official receives a timely request for review
of the Case Examiner's decision, the General Counsel shall review
the record of the listing proceeding to determine if the decision
of the Case Examiner is correct based on the record of the listing
proceeding considered as a whole. As soon as practicable after
receiving the request for review, the General Counsel shall
" *
issue a final decision in writing which is based on this
determination and explains the basis for the final decision.
The General Counsel's decision shall constitute final agency
action. The General Counsel shall file the decision with the
Listing Official. •' •
(d) The Case Examiner's decision constitutes a final agency
action for purposes of discretionary listing unless a timely
request for review of the Case Examiner's decision is filed with
the Listing Official in accordance with section 15.14(a).
5 15.15 Effective date of discretionary listing.
(a) Discretionary listing is effective immediately upon the
issuance of a final agency action filed with the Listing Official
to place the facility recommended for listing on the List of
Violating Facilities, or upon the failure to file a timely written
request for a listing proceeding under section 15.12(d).
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!L', discretionary listing remains effective until a removal
occurs under section 15.26
5 15.16 Notice of listing.
(a) Mandatory listing. The Listing Official shall send written
notice to the facility which shall state that the facility has
been placed on the List of Violating Facilities on the basis of
mandatory listing and the effective date of such listing.
(b) Discretionary listing. The Listing Official shall send
written notice to the recommending person and any person who
requested a listing proceeding informing them of the effective
date of the discretionary listing. The Listing Official shall
send written notice to the facility if no listing proceeding was
requested.
(c) Federal Register notice. The Listing Official shall publish
the effective date of the placement of the facility on the List
of Violating Facilities in the Federal Register"in accordance
with section 15.40.
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SUBPART C—PROCEDURES FOR REMOVING A FACILITY
FROM THE LIST OF VIOLATING FACILITIES
S 15.20 Removal of a mandatory listing.
When the Listing Official has placed a facility on the List
of Violating Facilities on the basis of mandatory listing under
section 15.10, the facility shall remain on the List of Violating
Facilities until the Assistant Administrator certifies that the
condition giving rise to mandatory listing has been corrected.
S 15.21 Removal of a discretionary listing.
*
(a) When the Listing Official has placed a facility on the List
of Violating Facilities on the basis of discretionary listing
under section 15.11, the Listing Official shall remove the facility
from the List of Violating Facilities as provided below:
(1) If the conviction, decree, order, judgment, or other form of
civil ruling or finding which formed the basis for discretionary
listing under section 15.11(a) has been reversed or otherwise
modified to remove the basis for discretionary listing;
(2) If the Assistant Administrator has determined that the
condition(s) which gave rise to discretionary listing have been
corrected; or,
(3) Automatically after one year of a discretionary listing
under section 15.11(a)(4), (a)(5) or (a)(6), unless before the
expiration of the one-year period c basis for wendstory listing
arises under cection 15.10 or a basic for discretionary listing
arises under 15.11(a)(l), (a)(2), or (?.)(3).
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-20-
(b) The Listing Official shall remove a facility from the List of
Violating Facilities at the direction of the Assistant Administrator
if the facility is on a plan for compliance which has been approved
by the Assistant Administrator and which will ensure that the
condition(s) which gave rise to discretionary listing will be
corrected.
— 5 15.22 Request for removal from the List of Violating Facilities.
(a) The original recommending person or any person who owns, leases,
or supervises a facility that is on the List of Violating Facilities
may file with the Listing Official a request to remove the facility
from the List. This request must set forth the proposed basis
for removal from the List under section 15.20 or 15.2I/
(b) The Assistant Administrator shall review the request for
removal and shall issue a decision as expeditiously as practicable
after receiving the request as to whether the facility will be
removed from the List of Violating Facilities.
(c) The Listing Official shall send written notice to the person
requesting removal informing that person of the Assistant
Administrator's decision concerning removal and of the opportunity
to request a removal hearing under section 15.23 if the Assistant
Administrator denies the request for removal.
S 15.23 Request for removal hearing.
(a) Within twenty (20) working days after the Assistant Administrator
denies a request for removal from the List of Violating Facilities,
the facility or the original recomnending person may file with
the Listing Official a written request for a removal hearing
under section 15.24.
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(b) If a timely request for a removal hearing under section
15.23(a) is not filed, any person who may make a request for
removal under section 15.22(a) may file a new request for removal
under section 15.22(a) if a new basis for removal under section
15.20 or 15.21 arises at a later date.
S 15.24 Removal hearing.
(a) A removal hearing shall be conducted by a Case Examiner
designated by the Assistant Administrator. The person requesting
the removal hearing must demonstrate at the removal hearing by a
i
preponderance of the evidence that a basis for removal is present.
(1) The person requesting the removal hearing and the Agency may
be represented by legal counsel, present oral and written evidence
relevant to the proposed removal, and, with the approval of the
Case Examiner, call, ask questions of, and confront witnesses to
the extent it is relevant to the issue of removal and to the
extent that any additional information produced will be useful
in light of the additional time such procedures will take.
(2) The removal hearing shall be transcribed and a transcribed
record of the proceeding shall be made available to the owner,
operator, or lessee of the facility or to any person represented
at the hearing at cost upon request.
(b) The Federal, State, or local authority responsible for the
enforcement of clean air standards or clean water standards with
respect to the listed facility may participate in the removal
hearing.
(c) The Case Examiner's decision concerning removal bhall be
based solely upon the record in the removal hearing.
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-22-
(d) The Listing Official shall send written notice to the person
requesting the removal hearing and the Federal, State, or locaT~
authority responsible for the enforcement of clean air standards
or clean water standards with respect to the listed facility,
informing them of the decision of the Case Examiner and of the
opportunity to request the Administrator to review the Case
"....••••»- ' ' '
Examiner's decision under section 15.25.
5 15.25 Request for review of the decision of the Case Examiner.
(a) Within twenty (20) working days of the date of the Case
Examiner's decision under section 15.24, the party adversely
affected by the Case Examiner's decision may file with the Listing
Official a request for the Administrator to review the Case
Examiner's decision. The, request shall contain:
f
(1) a statement of the issues presented by the request for removal;
(2) a statement of the case and the facts involved in the request
-~j
for removal; and
(3) a statement showing why the decision of the Case Examiner is
not correct based upon the record of the removal hearing considered
as a.whole.
(b) Upon receiving a timely request for review of the removal
hearing, the Administrator shall review the record of the removal
hoaring to determine if the decision of the Case Examiner is
correct based upon the record of the removal hearing considered
as a whole. As soon as practicable after receiving the request
for review, the Administrator shall issue a final decision in
writing which shall be based on this determination and shall set
forth the reasons for the decision.
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-23-
The decision shall constitute final agency action.
(c) If a timely request asking the Administrator to review the
Case Examiner's decision under section 15.25(a) is not filed,
the Case Examiner's decision constitutes final agency action at
the expiration of such period.
(d) If the request for removal is denied upon review, any person
who may file a request for removal under section 15.22(a) may
"*" file a new request for removal under section 15.22(a) if a new
basis for removal under section 15.20 or 15.21 arises at a later
date. The new request shall set forth the new basis claimed for
»
removal.
S 15.26 Effective date of removal.
(a) Mandatory listing. Removal of a facility placed on the List
of Violating Facilities on the basis of mandatory listing shall
be effective immediately upon the certification by the Assistant
Administrator that the conditibn('s) which gave rise to the mandatory
listing under section 15.10 has been corrected, or upon the issuance
of a final agency action filed with the Listing Official to remove
the listed facility from the List of Violating Facilities under
Sections 15.24 or 15.25.
(b) Discretionary listing. Removal of a facility placed on the
List of Violating Facilities on the basis of discretionary listing
shall be effective immediately upon the expiration of one year
under 15.21(a)(3) or upon tbethe Assistant Administrator's
decision to remove the listed facility based upon a timely written
request for removal under section 15.22(a), or upon the issuance
of a final agoncy action filed with the Listing Official to remove
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-24-
the listed facility from the List of Violating Facilities under
sections 15.24 or 15.25.
(c) Federal Register notice. The Listing Official shall publish
the effective date of the removal of the facility from the List
of Violating Facilities in the Federal Register in accordance
with section 15.40.
§ 15.27 Notice of removal.
The Listing Official shall send written notice to the
recommending person and any person who made a timely written
request for removal under section 15.22(a) informing them of the
effective date of the removal of the facility from the List of
Violating Facilities. The Listing Official shall publish the
effective date of the removal in the Federal Register in accordance
with section 15.40.
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SUBPART D-AGENCY COORDINATION
§ 15.30 Agency responsibilities.
Each agency shall take appropriate steps to ensure that all
officers and employees whose duties include ensuring that all
agency contracts, grants, and loans are in compliance with
applicable requirements are familiar with the requirements set
forth in Executive Order 11738, this regulation, 48 F.R. 42102
(September 19, 1983), and 49 F.R. 8834 (March 8, 1984).
15.31 Agency regulations.
(a) Any agency responsible for promulgating contract, grant, and
loan regulations, shall ensure that its regulations require
•
every non-exempt .agency contract, grant, and loan and every
subagreement issued thereunder to include the following provisions:
(1) A promise by the contractor, grantee, or borrower that he or
she will not use any facility on the List of Violating Facilities
in the performance of any nonexempt contract, grant, or loan.
(2) A promise by the contractor, grantee, or borrower that he or
she will notify the awarding agency if a facility he or she
intends to use in the performance of the contract, grant, or
loan is on the List of Violating Facilities or has been recommended
to be placed on the List of Violating Facilities.
(3) A promise by the contractor, grantee, or borrower that in
the performance of the contract, grant, or loan, he or she will
comply with all requirements of the Air Act and the Water Act,
including the requirements of section 114 of the Air Act and
section 308 of the Water Act, and all applicable clean air standards
and clean water standards.
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S 15.32 Contacting the Assistant Administrator.
(a) Any agency employee whose duties include ensuring that all
agency contracts, grants, and loans are in compliance with applicable
requirements, shall promptly report to his or her agency head,
or the designee of the agency head, any condition which may
involve noncompliance with clean air standards or clean water
standards at any facility that is being used, or will be used in
an agency contract, grant, or loan. The report shall include at
a minimum the following information:
(1) The name, telephone number, and agency of the employee
discovering the condition.
(2) The name of the facility at which the condition exists.
t
(3) A description of the condition.
(4) The contract, grant, or loan the agency has issued or may
issue, extend, or renew to the facility at which the condition
exists. _^
(b) The agency head, or his or her designee, shall transmit any
reports made under section*15.32(a) to the Assistant Administrator
as soon as practicable, after he or she receives the report. In
response to the report, the Assistant Administrator shall take
any action that is consistent with the policy and purpose of
this regulation.
S 15.33 Investigation by the Assistant Administrator prior to
awarding a contract, grant, or loan.
(a) If the Assistant Administrator is notified under section 15.32(b)/x
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-27-
»y
v^j that a condition which may involve noncompliance with clean
air standards or clean water standards exists at a facility thaT
is or may be used in the performance of any nonexempt agency
contract, grant, or loan, the Assistant Administrator may, after
consultation with the awarding agency involved, request that the
award, extension, or renewal of the nonexempt contract, grant, or
loan be withheld for fifteen (15) working days to determine if a
basis exists for placing the facility on the List of Violating
Facilities under sections 15.10 and 15.11.
(b) If the Assistant Administrator requests that an award,
extension, or renewal of a contract, grant, or loan be withheld
•
under section 15.33(a), the awarding agency shall comply
with the Assistant Administrator's request unless it determines
that the delay is substantially contrary to the best interests
of the government. The awarding agency shall promptly notify
the Assistant Administrator of any such determination.
(c) At the end of the fifteen (15) day working period, the
Assistant Administrator shall notify the awarding agency and the
applicant of the results of any investigation undertaken under
section 15.33(a).
5 15.34 Referral by the Assistant Administrator to the Department
of Justice.
The Assistant Administrator may recommend to the Department
of Justice or other appropriate agency that legal proceedings be
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:.:-t.; . . . ;:- ^. • .. ; .
brought or other appropriate action be taken whenever the Assistani
Administrator becomes aware of a breach of any provision required
to be included in a contract, grant, or loan under section 15.31.
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SUBPART E-MISCELLANEOUS
§ 15.40 Distribution of the List of Violating Facilities
(a) The List of Violating Facilities shall be transmitted to the
General Services Administration and published in the Federal
Register on or about February 1 and August 1 of each year, and
updated in the Fjederal Register as necessary to reflect changes
to the list as they occur. The list shall contain the following
information:
(1) the name of each facility on the List;
(2) the location of the facility;
(3) the basis for the listing;
(4) the effective date of the listing; and
(5) any removal of any facility from the List.
$ 15.41 Reports.
(a) Agency reports. Each Agency head will report each exemption
granted under S15.5(b) to the Administrator. Reports should be
made by November 1 of each .year...and should indicate all exemptions
granted during the previous fiscal year.
(b) Reports by the Administrator.
(1) The Administrator shall report annually to the President on
the measures he or she has taken toward implementing the purpose
and intent of section 306 of the Air Act, section 508 of the
Water Act, Executive Order 11738, and this regulation, including
but not limited to the progress and problems associated with
such implementation.
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(?) The Administrator shall notify the President and the Congress
annually of all exemptions granted or in effect under section
15.5 during the preceding year. -.«.--
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I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
/ WASHINGTON. D.C. 20460
08
CŁ Of
ENFORCEMENT AND
COMPLIANCE MONITORING
MEMORANDUM
SUBJECT: Implementation of Jjandatory Contractor Listing
FROM:
TO:
Courtney M.
Assistant Administrator for Enforcement
and Compliance Monitoring
Assistant Administrator for Air and Radiation
Assistant Administrator for Water
Associate Enforcement Counsel for Air Enforcement
Associate Enforcement Counsel for Water Enforcement
Associate Enforcement Counsel for Criminal Enforcement
Assistant Attorney General for Land and Natural
Resources
Regional Counsels I-X
Introduction and Purpose
Pursuant to statutory requirements, the proposed revisions
to 40 CFR Part 15 require that the List of Violating Facilities
("the List") automatically include any facility which gives rise
to a criminal conviction of a person under Section 113(c)(l) of
the Clean Air Act or Section 309(c) of the Clean Water Act.
Any facility on the List is ineligible to receive any non-exempt
Federal government contract, grant, or loan. Removal of a
facility from the List occurs only if I certify that the condition
giving rise to the conviction has been corrected or if a court
reverses or vacates the conviction. This memorandum establishes
the procedure to implement the mandatory portion of the contractor
listing program. ^ '
V Guidance on implementation of the discretionary listing
authority issued on July 18, 1964.
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-2- -/V .
Procedure for Mandatory Listing
I. A federal district court must enter a guilty verdict or
guilty plea of a person under Section 113(c)(l) of the
Clean Air Act or Section 309(c) of the Clean Water Act.
The convicted person must own, operate, lease, supervise
or have a financial interest in the facility which gave
rise to the conviction. Note that criminal convictions
under Section 113(c)(2) of the Clean Air Act and criminal
convictions entered by a State or local court do not qualify
a facility for mandatory listing.
II. Upon notification of an entry of a guilty verdict or guilty
plea by the clerk of the district court, the Department of
Justice-must immediately notify the Associate Enforcement
Counsel for Criminal Enforcement (LE-134E). This notification
must occur even if the defendant still awaits sentencing,
has moved for a new trial or a reduced sentence, or has
appealed the conviction.
[II. The Associate Enforcement Counsel for Criminal Enforcement
must independently verify that the court has entered the
guilty verdict or guilty plea.
.IV. Upon such verification, the Associate Enforcement Counsel
for Criminal Enforcement shall notify EPA's Listing Official
(LE-130A) in writing, of the name and location of the facility
and of the condition giving rise to the guilty verdict or
guilty plea.
V. The Listing Official shall then update the List by publishing
a notice in the Federal Register, and shall notify the
Associate Enforcement Counsel for Air or Water; the appropriate
Regional Counsel; the Compliance Staff, Grants Administration
Division, Office of Administration and Resource Management;
the General Services Administration, and the facility. A
facility remains on the mandatory List indefinitely until
it establishes a basis for removal.
Procedure for Removal from the Mandatory List
I. Any person who owns, operates, leases, supervises, or has
a financial interest in the listed facility may file with
the Listing Official a request to remove that facility from
the List. The request roust establish one of the following
grounds for removal:
A. The condition at the facility that gave rise to the
conviction has been corrected.
B. The conviction (not just the sentence) was reversed or
vacated.
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II. The Listing Official must transmit the request for removal
to the Assistant Administrator for OECM.
III. The Assistant Administrator for OECM, or her or his designee,
shall review the request for removal and shall consult the
appropriate Regional Counsel to determine whether the
condition at the facility giving rise to the conviction
has been corrected, or if the conviction has been reversed
or vacated.
IV. The Assistant Administrator for OECM shall determine as
expeditiously as practicable whether to remove the facility
from the list.
V. If the Assistant Administrator for OECM decides to remove
the facility from the list, a written notification of
such determination shall be sent to the facility and to
the Listing Official who shall promptly publish a notice
of removal in the Federal Register.
VI. If the Assistant Administrator for OECM decides not to
remove the facility from the List, the Listing Official
shall send written notice of the decision to the person
requesting removal; The notice shall inform the person
owning, operating, leasing, supervising or having a
financial interest in the facility of the opportunity
to request a removal hearing before a Case Examiner
(See 40 CFR Part 15 for the selection and duties of the
Case Examiner).
VII. If the Case Examiner, or the Administrator upon appeal of
the Case Examiner's decision, decides to remove the facility
from the List, the Listing Official shall be notified.
The Listing Official shall then promptly remove the facility
from the List. If the Case Examiner or the Administrator
upon appeal, decides not to remove the facility from the
list, then the Listing Official shall send written notice
of the decision to the person requesting removal.
It is important to note that any decision regarding the
listing or removal of a facility from the List does not affect
any other action by any government agency against such a facility,
including debarment from government contracting.
I believe these procedures will enable us to conduct the
mandatory listing program in an efficient manner. If you have
any questions, please contact EPA's Listing Official, Allen J.
Danzig, at (FTS) 475-8777.
cc: Stephen Ramsey, DOJ
Belle Davis, GAD/OARM
Judson W. Starr,/DOJ
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33
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USB
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
NOV 51984
OFFICE OF ENFORCEMENT
AND COMPLIANCE
MONITORING
MEMORANDUM
SUBJECT: Guidance for Calculating the Economic Benefit of
Noncompliance for a Civil Penalty Assessment
FROM: Courtney M. Price
Assistant Administrator-or Enforcement
and Compliance Monitoring
TO: Regional Administrators
Associate Enforcement Counsels
OECM Office Directors
I. PURPOSE
This guidance amplifies the material in the Appendix of
GM-22, "Framework for Statute-Specific Approaches to Penalty
Assessment." The Appendix presents a description of how to
calculate the economic benefit of noncompliance as part of
developing a civil penalty. A new computer model, BEN, is a
refinement of the methodology for calculating the economic
benefit of noncompliance. •
By refining the methods by which we calculate the economic
benefit of noncompliance, we will:
1. Respond to the problems that enforcement and program
offices identified concerning methods for calculating the
economic benefit component of a civil penalty;
2. Ensure among the media programs appropriate consistency
in calculating the economic benefit component of a civil penalty;
3. Ensure that the economic benefit of noncompliance con-
tinues to be a fairly valued, reasonable component of a civil
penalty; and
4. Ensure that the assumptions and data used in BEN to
calculate the economic benefit component can be defended at
either an administrative hearing or a judicial proceeding.
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-2-
II. SCOPE ..
This guidance describes BEN, the new computer model, in
terns of how this model resolves the identified problems related
to the use of CIVPEN. EPA personnel can use BEN to calculate the
economic benefit a violator gains from delaying capital expendi-
tures for pollution control equipment or from avoiding the costs
of operating and maintaining pollution control equipment.
Exhibit I .summarizes BEN.
EPA personnel cannot use BEN to calculate the economic
benefit component of a civil penalty if a violator's action
does not involve a delayed or avoided expenditure. Under
these circumstances, program offices may elect to develop
statute-specific formulas as provided in GM-22 for calculating
the economic benefit component of a civil penalty. These
formulas would be used to develop civil penalties in response
to actions such as certain TSCA marking/disposal violations or
RCRA reporting violations. The rule of thumb in the general
penalty policy would not be appropriate for these types of
violations.
OPPE is considering the feasibility of developing a second
computer model or rule of thumb formula that could be applied
uniformly to violations that do not involve delayed or avoided
expenditures.
III. NEW CIVIL PENALTY POLICY APPROACH
Regional personnel may use the rule of thumb described in
GM-22 to develop a preliminary estimate of the economic benefit
component of a civil penalty. The rule of thumb is for the
convenience of EPA and is not intended to give a violator a lower
economic benefit component in a civil penalty. Regional personnel
should consider whether an estimate of economic benefit derived
with the rule of thumb would be lower than an estimate calculated
with BEN. For example, the longer the period of noncompliance,
the more the rule of thumb underestimates the economic benefit
of noncompliance.
If EPA proposes and a violator accepts the rule of thumb
calculation, Regional personnel can develop the civil penalty
without further analysis of economic benefits. If a violator
disputes the economic benefit figure calculated under the rule
of thumb, a more sophisticated method to develop the economic
benefit component of the penalty is required.
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-3-
In general, if the estimate under the rule of thumb is
less than $10,000, the economic benefit component is not needed
to develop a civil penalty;1 the other factors in GM-22 still
apply. If the rule of thumb estimate is more than $10,000,
Regional personnel should use EEN to develop an estimate of
the economic benefit component.
IV. USING BEN TO CALCULATE ECONOMIC BENEFIT OF NONCOMPLIANCE
EPA personnel should use the revised computer model BEN
whenever:
1. the rule of thumb indicates that the
economic benefit of noncompliance is
greater than $10,000; or
2. the violator rejects the rule of thumb
calculation.
BEN uses 13 data variables. At the option of the user,
BEN substitutes standard values for 8 of the 13 entries, and
the user only provides data for 5 variables. (See Exhibit I.)
BEN also has the capability for EPA personnel to enter
for those 8 variables the actual financial data of a violator.
In appropriate cases, EPA should notify a violator of the
opportunity to submit actual financial data to use in BEN
instead of the 8 standard values. If a violator agrees to
supply financial data, the violator must supply data for all
the standard values.
V. ADVANTAGES OF BEN OVER OTHER CALCULATION METHODS
The computer model BEN has advantages over previously
used methods for calculating the economic benefit component
of a civil penalty. BEN does not require financial research
by EPA personnel. The five required variables are information
about capital costs, annual operation and maintenance costs,
and the dates for the period of noncompliance. Further, BEN
has the flexibility to allow a violator who cooperates with
EPA to provide actual financial data that may affect the penalty
calculation.
I/ Although the general penalty policy cut off point is $10,000,
each program office may establish a cut off point for the
progrea's medium-specific policy.
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-4-
An economic benefit component calculated with BEN
defended in an administrative or judicial proceeding on the
grounds that the standard values used in BEN are derived from
standard financial procedures and the violator had an opportu-
nity to provide financial data to help develop the civil penalty.
The use of BEN or statute-specific formulas when appro-
priate gives the Regional Offices flexibility in determining
the economic benefit of noncompliance. Regional personnel
have a consistent method for developing a civil penalty under
several statutes for multiple violations that involve delayed
capital costs and avoided operation and maintenance costs.
BEN is easy for a layman to use. The documentation is
built into the program so that a Regional user always has
updated documentation and can use the program with minimal
training. States are more likely to follow EPA's lead in
pursuing the economic benefit of noncompliance through civil
penalty assessments because the method available from EPA to
serve as a model does not require extensive financial research.
cc: Regional Enforcement Contacts
Program Compliance Office Directors
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Exhibit I .
. -- ; : ...--.» j.=
' • • - BEN • '••::,' ,
A. Accessed via terminal to EPA's IBM computer in Durham, N.C.
B. Can be run in either of two modes:
1. Standard mode:
a) Requires 5 inputs:
i. Initial Capital Investment
ii. Annual Operating and Maintenance Expense
iii. First Month of Noncompliance
iv. Compliance Date '
v. Penalty Payment Date
b) Relies on realistic standard values for
remaining variables: '< •
i. A set of standard values for private
companies
ii. A set of standard values for munici-
pally-owned or not-for-profit companies
c) Would be used for final calculation of economic
benefit unless the violating firm objected and
supplied all its own financial data
2* Specific node:
a) Requires 13 inputs
b) Would be used if violating firm supplied data or
if EPA staff researched data
C. Is easy to use
1. Optional on-line documentation will guide inexperienced
users through each step of the model
2. Written documentation will be available by December
1984 . . - i
D. Is based on modern financial principles
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* I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
\/ WASHINGTON. D.C. 20460
16/964
OFFICE OF
ENFORCEMENT AND
COMPLIANCE MONITORING
MEMORANDUM
SUBJECT: Policy Against "No J^ction" Assurances
FROM: Courtney M. Price
Assistant Administrator for Enforcement
and Compliance Monitoring
TO: Assistant Administrators
Regional Administrators
General Counsel
Inspector General
This memorandum reaffirms EPA policy against giving
definitive assurances (written or oral) outside the context of
a formal enforcement proceeding that EPA will not proceed with
an enforcement response for a specific individual violation of
an environmental protection statute, regulation, or other
legal requirement.
"No action" promises may erode the credibility of EPA's
enforcement program by creating real or perceived inequities
in the Agency's treatment of the regulated community. This
credibility is vital as a continuing incentive for regulated
parties to comply with environmental protection requirements.
In addition, any commitment not to enforce a legal
requirement against a particular regulated party may severely
hamper later enforcement efforts against that party, who may
claim good-faith reliance oh that assurance, or against other
parties who claim to be similarly situated.
This policy against definitive no action promises to
parties outside the Agency applies in all contexts, including
assurances requested:
0 both prior to and after a violation has been committed;
0 on the basis that a State or local government is
responding to the violation;
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0 on the basis that revisions to the underlying legal
requirement are being considered;
• on the basis that the Agency has determined that the
party is not liable or has a valid defense;
* on the basis that the violation already has been
corrected (or that a party has promised that it will
correct the violation); or
0 on the basis that the violation is not of sufficient
priority to merit Agency action.
The Agency particularly must avoid no action promises
relating either to violations of judicial orders, for which a
court has independent enforcement authority, or to potential
criminal violations, for which prosecutorial discretion rests
with the United States Attorney General.
As a general rule, exceptions to this policy are warranted
only
0 where expressly provided by applicable statute or
regulation (e.g., certain upset or bypass situations)
0 in extremely unusual cases in which a no action
assurance is clearly neccessary to serve the public
interest (e.g., to allow action to avoid extreme risks
to public health or safety, or to obtain important
information for research purposes) and which no other
mechanism can address adequately.
Of course, any exceptions which EPA grants must be in an area
in which EPA has discretion not to act under applicable law.
This policy in no way is intended to constrain the way in
which EPA discusses and coordinates enforcement plans with
state or local enforcement authorities consistent with normal
working relationships. To the extent that a statement of EPA's
enforcement intent is necessary to help support or conclude an
effective state enforcement effort, EPA can employ language
such as the following:
"EPA encourages State action to resolve violations of
the Act and supports the actions which (State)
is taking to address the violations at issue. To the extent
that the State action does not satisfactorily resolve the
violations, EPA may pursue its own enforcement action."
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I am requesting that any definitive written or oral no
action commitment receive the advance concurrence of my office.
This was a difficult decision to reach in light of the valid
concerns raised in comments on this policy statement; neverthe-
less/ we concluded that Headquarters concurrence is important
because the precedential implications of providing no action
commitments can extend beyond a single Region. We will attempt
to consult with the relevant program office and respond to any
formal request for concurrence within 10 working days from the
date we receive the request. Naturally, emergency situations
can be handled orally on an expedited basis.
All instances in which an EPA official gives a no action
promise must be documented in the appropriate case file. The
documentation must include an explanation of the reasons
justifying the no action assurance.
Finally, this policy against no action assurances does not
preclude EPA from fully discussing internally the prosecutorial
merit of individual cases or from exercising the discretion it
has under applicable law to decide when and how to respond or
not respond to a given violation, based on the Agency's normal
enforcement priorities.
cc: Associate Enforcement Counsels
OECM Office Directors
Program Compliance Office Directors
Regional Enforcement Contacts
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
. . !~. - U
WASHINGTON. D.C. 20460
4 isb5
t or
THE ADMINISTRATOR
MEMORANDUM
SUBJECT: Implement ing Nationally Managed or Coordinated
Enforcement Actions: Addendum to Policy Framework
for State/EPA Enforcement Agreements
FROM: Alvin L. Aim
Deputy Administrator
TO: Assistant Administrators * -
Regional Administrators
Regional Enforcement Contacts
Steering Committee on the State/Federal Enforcement
Relationship
Associate Administrator for Regional Operations
I am pleased to transmit to you a copy of EPA's policy
statement on Implementing Nationally Managed or Coordinated
Enforcement Actions, as an addendum to the Agency's Policy
Framework for State/EPA Enforcement Agreements, issued en
June 25, 1984.
The policy statement was developed at the request of
Courtney Price and myself by an OECM work group with repre-
sentatives from the Headquarters Program Offices and Regions.
The draft policy statement was reviewed by the Steering
Committee on the State/Federal Enforcement Relationship.
This final policy statement reflects the Steering Committee's
comments.
I think this policy is an important addition to our
efforts to build both a more effective national enforcement
program and a strong working relationship with the States.
Coordinated case preparation will have an increasingly
important role in establishing precedent for our new programs,
in creating a greater deterrent effect when dealing with
numerous small sources and in addressing recurring patterns
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of noncorapliance within regulated entities. This policy
clarifies not only the circumstances under which nationally
managed or nationally coordinated cases are appropriate, but
most important, it clarifies the roles and relationships
among EPA headquarters, Regions and State or local governments
with delegated programs.
This additional policy guidance, in concert with the
recently completed State/EPA Enforcement Agreements, should
provide a consistent framework for enhancing our joint Federal
and State-efforts to achieve a strong"and effective national
enforcement presence.
Attachment
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12/2R/R4
EPA POLICY ON IMPLEMENTING NATIONALLY MANAGED OP
COORDINATED ENFORCEMENT ACTIONS
This policy addresses how EPA will handle the small
subset of federal civil enforcement cases, bcth administrative
and judicial, which are managed or coordinated at the EPA
Headquarters level. The policy was developed to ensure these
actions are identified, developed and concluded consistent
with the principles set forth in the Policy Framework for
State/EPA" Enforcement "Agreements." it covers the criteria
and process for deciding what cases might best be managed or
coordinated nationally; the roles and relationships of EPA
Headquarters and regional offices and the States; and protocols
for active and early consultation with the involved States
and Regions.
A. Criteria for Nationally Managed or Coordinated Enforcement
Cases
Most enforcement cases are handled at the state, local
or EPA regional level for reasons of efficiency and effectiveness
and in view of the primary role that States and local governments
have in enforcement under most of the major environmental
statutes. The Policy Framework identifies several instances
in which direct enforcement actions may be taken by EPA, which
in most instances will be handled by EPA Regions pursuant tc
the State/EPA Enforcement "Agreements." However, seme of
those cases may most appropriately be managed or coordinated
at the national level by EPA Headquarters.
In addition to instances in which an EPA Region requests
Headquarters assistance or lead in an enforcement case, these
"national" cases will usually arise within the context of
three of the criteria for direct EPA action mentioned in the
Policy 'Framework:
— National Precedent (legal or program precedent): the
degree to which the case is one of first impression
in law or the decision is fundamental to establishing
a basic element of the national compliance and
enforcement program. This is particularly important
for early enforcement cases under a new program or
issues that affect implementation of the program on
a national basis.
-- Repeat Patterns of Violations and Violators; the
degree to which there are significant patterns of
repeat violations at a given facility or type of
source or patterns of violations within multi-facility
regulated entities. The latter is of particular
concern where the noncompliance is a matter of national
(e.g., corporate) policy or the lack of scund environ-
mental management policies and practices at 2 national
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- 2 -
. level which can best be remedied through settlement
provisions which affect such national policies and
practices. * • ' ~-c^~-
— Interstate Issues (multiple States or Regions): the
degree to which a case may cross regional or state
boundaries and requires a consistent approach. .
This is particularly important where there may be a
potential for interregional transfers of pollution
problems and the case will present such issues when
EPA Regions or States are defining enforcement remedies.
EPA's response to any of these circumstances can range
from increased headquarters oversight and legal or technical
assistance, to close coordination of State and Regional
enforcement actions, to direct management of the case by
Headquarters.
There are essentially two types of "National" cases. A
nationally managed case is one in which EPA Headquarters has
the responsibility for the legal and/or technical development
and management of the case(s) from the time the determination
is made that the case(s) should be nationally managed in
accordance with the criteria and process set forth in this
policy. A nationally coordinated case(s) is one which preserves
responsibility for lead legal and technical development and
management of the cases within the respective EPA regio-s
and/or state or local governments. This is subject, however,
to the oversight, coordination and management by a lead
Headquarters attorney and/or program staff en issues of
national or programmatic scope to ensure that all cf the
cases within the scope of the nationally coordinated case are
resolved to achieve the sane or compatible results in furtherance
of EPA's national program and enforcement goals.
Section C below describes more fully the roles and
relationships of EPA headquarters and regional and state
personnel, both legal and technical, in either nationally
managed or nationally coordinated cases.
There are several factors to apply to assess whether, in
addition to the normal Headquarters oversight, a case should
be handled as: (1) nationally managed; or (2) nationally
coordinated. None of these factors may necessarily be sufficient
in themselves but should be viewed as a whole. These factors
will include:
— availability or most efficient use of State or EPA
Regional or Headquarters resources.
— ability of the agency to affect the outcome through
alternative means. One example is issuance of
timely policy guidance which would enable the States,
local governments or EPA Pegior.s to establish the
appropriate precedent through independent action.
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— favorable venue considerations. —-
environmental results which could be achieved through
discrete versus concerted and coordinated action,
such as potential for affecting overall corporate
environmental practices.
—- location of government legal and technical expertise
at EPA Headquarters or in the Regions, recognizing
that expertise frequently can be tapped and arrangements
be made to make expertise available where needed.
To the extent possible, where cases warrant close national
attention, EPA Headquarters will coordinate rather than
directly manage the case on a national basis thereby enabling
Regions and States to better reflect facility-specific enforcement
"^Considerations.
B. Process for Identifying Nationally-Managed or Coordinated
Cases — Roles and Responsibilities
EPA recognizes the importance of anticipating the n.eed
for nationally managed or coordinated cases to help strengthen
our national enforcement presence; and of widely snaring
information both on patterns of violations and violators and
on legal and program precedent with EPA Regions and States.
To do this:
Headquarters program offices, :.n cooperation with the
Office of Enforcement and Comyiiance Monitoring should
use the Agency's Strategic plaining process to help
identify upcoming enforcement cases of national precedence
and importance. They also should develop and disseminate
to Regions information on anticipated or likely patterns
or sources of violations for specific industries and
types of facilities.
Regional offices are responsible for raising to Headquarters
situations which pose significant legal or program
precedent or those in which patterns of violations are
occurring or which are likely to be generic industry-
wide or company-wide which would make national case
management or coordination particularly effective.
State and local officials are encouraged to raise to EPA
Regional Offices situations identified above which would
make national case management or coordination particularly
effective.
Whether a case will be managed or coordinated at the national
level will be decided by the Assistant Administrator for Enforce-
ment and Compliance Monitoring after full consultation with the
affected program Assistant Administrators, Regional Administrators
and state or local governments with approved or delegated programs
in what is intended to be a consensus building process. There
will be a full discussion among all of the parties of all of
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- 4 -
the ramifications for the program and a review of all of the
important criteria involved in the decision. In the event of
a lack of consensus as to whether the case should be managed
or coordinated at the national level, the AA for OECM shall
make the determination, with an opportunity for a hearing
and timely appeal to the Administrator or Deputy Admini-
strator by the Regional or other EPA Assistant Administrator.
The Regions will be responsible for communicating with
any affected States using mechanisms -established in the State/
EPA Enforcement "Agreements," to raise the possibility of
national case management or coordination and to ensure that
timely information on the status of any independent state,
local or regional enforcement actions can and would be factored
into the decisions regarding: (1) whether to manage the case
nationally; (2) whether to coordinate the case nationally; (3)
what legal and technical assistance might be provided in a State
lead case; and (4) what facilities to include in the action.
C. Case Development — P.oles and Responsibilities
Nationally managed cases are those that are managed out
of SPA Headquarters with a lead headquarters enforcenent
attorney and" a designated lead headquarters program contact.
Notwithstanding headquarters lead, in most instances, timely
and responsive Regional office legal and technical support
and assistance is expected in developing and managing the
case. In these instances, the Regions will receive credit
for a case referral (on a facility basis) for this effort.
The decision en the extent of Regional office involvement
anc case referral credit will be made at the time of decision
that the case should be nationally managed. Regions which
play a significant role in the development and/or prosecution
of a case will be involved in the decision-making process in
any case settlement proceedings and the Regional Administrator
will have the opportunity to formally concur in sr.y settlement.
Nationally coordinated cases are those that are coordi-
nated out of EPA Headquarters with lead regional and/or state
or local attorneys and associated program office staff. The
headquarters attorney assigned to the case(s) and designated
headquarters program office contact have clear responsibility
for ensuring national issues involved in the case which
require national coordination are clearly identified and
developed and in coordinating the facility-specific actions
of the regional offices to ensure that the remedies and
policies applied are consistent. This goes beyond the normal
headquarters oversight role. The headquarters officials have
both a facilitator role in coordinating information exchange
and a policy role in influencing the outcome for the identified
issues of national concern.
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Whether a case is nationally managed or nationally
coordinated, as a general rule if EPA is managing a case,
States will be invited to participate fully in case develop-
ment and to formally join in the proceedings if they so
desire by attending meetings and planning sessions. States
will be consulted on settlement decisions but will be asked
to formally concur in the settlement only if they are parties
to the litigation.
On a case-by-case basis, the National Enforcement and
Investigations Center (NEIC) may be asked to play a role in
either type of national case to coordinate evidence gathering,
provide needed consistency in technical case development
and policy, witnesses and chain of custody, and/or to monitor
consent decree compliance.
D. Press Releases and Major Communications
A communications plan should be developed at an early
stage in the process. This should ensure that all of the
participating parties have an opportunity to communicate
their role in the case and its outcome. Most important, the
communications plan should ensure that the essential message
from the case, e.g., the anticipated precedents, gets sufficient
public attention to serve as a deterrent for potential future
violations.
All regional and state co-plaintiffs will be able to
issue their own regional, state-specific or joint press
releases regarding the case. However, the timing of chose
releases should be coordinated so that they are released
simultaneously, if possible.
It is particularly important that the agencies get
maximum benefit from the deterrent effect of these significant
national cases through such mechanisms as:
more detailed press releases to trade publications
i.e., with background information and questions and
answers
development of articles
— interviews with press for development of more in-
depth reporting
— press conferences
— meetings with public/environmental groups — including
meetings on the settlement of national cases which
have'generated intense local or national interest
speeches before industry groups about actions
communications with congressional committees
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USB
,.
o UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
^f? WASHINGTON, DC 20460
OFFICE OF
ENFORCEMENT COUNSEL
MEMORANDUM
SUBJECT: The Use of Administrative Discovery Devices in the
Development of Cases Assigned to^the Office of
Criminal Investigations
FROM: Courtney M. Price
Assistant Administrator
Enforcement and Compliance Monitoring
TO: Assistant Administrators
Regional Administrators
Regional Counsels
Introduction
Most of the environmental statutes for which the U.S.
Environmental Protection Agency (EPA) has responsibility contain
one or both of the following information-gathering provisions:
(1) provisions which empower EPA to require responses to requests
for information; and (2) provisions conferring upon EPA the
right to enter and inspect .physical premises. This document has
been prepared to provide guidance concerning the use of these
provisions in the investigation of cases assigned to EPA's Office
of Criminal Investigations. This guidance supersedes any previous
EPA document which addresses the issues arising from the use of
administrative discovery devices in the development of a criminal
case.
This guidance was developed through an examination of the
use of administrative discovery devices in cases that have
resulted in criminal prosecutions. Because there is currently
very little case law concerning such provisions in environmental
statutes, a review was made of cases under similar statutory
schemes. The guidance is a rather conservative application of
the broad principles established in these decisions.
The use of administrative discovery devices in parallel
proceedings—that is, instances in which both a criminal investi-
gation and a civil or administrative proceeding concerning the
same circumstances take place simultaneously—is not addressed in
this document. This issue is addressed in separate guidance on
parallel proceedings.
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The importance of this guidance cannot be over-stated.
Where the use of administrative discovery devices is found to
be improper, the ultimate remedy may be suppression of evidence
in the subsequent criminal prosecution.
This guidance is strictly advisory in nature. It is not
intended to create or confer any rights, privileges or bene-
fits. This policy is not intended to, does not, and may not be
relied upon to create any rights, substantive or procedural,
enforceable at law by any party in any matter, civil and criminal.
Any attempts to litigate any portion of this guidance* should be
brought to the attention of the Criminal Enforcement Division,
Office of Enforcement and Compliance Monitoring, EPA Headquarters.
I. USE OF'EPA'S INFORMATION REQUEST AUTHORITY
Background
For purposes of this guidance, the term "information request
authority" will be used to describe those provisions contained in
EPA-adiainistered statutes which provide the Agency with the
authority to compel the production of information. Sections 308
of the Clean Water Act and ll(e) of the Toxic Substances Control
Act are typical of such provisions. Courts have upheld the use
of such provisions both in cases where the information sought is
relevant to investigations into pending charges and where it is
relevant to investigations into whether charges should issue.I/
Information requests pursuant to these provisions are enforce"
able upon a showing that the information is relevant to a
purpose properly authorized by Congress.Ł/
The enforcement provisions of environmental statutes contain
both civil and criminal provisions. Therefore, evidence obtained
through the use of such information request authority may subse-
quently be used in a criminal prosecution. This fact raises
concerns that such summons authority will be used, in some instances,
solely for purposes of gathering evidence for a criminal prosecution;
such a use has been viewed as infringing upon the role of the
grand Jury.
Issue
To what extent can the information request authority
granted to EPA under the environmental statutes be utilized to
gather evidence of statutory violations in cases under develop-
ment by EPA's Office of Criminal Investigations?
I/ Oklahoma Press Publishing Company v. Walling. 327 U.S.
186 (1946).
2J United States v. Morton Salt Company. 338 U.S. 632 (1950).
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-3-
Guldance
EPA's information request authority may properly be
cases being developed by EPA's Office of Criminal Investigations
until the case is referred to the Department of Justice. The
decision to refer a case, however, may not be artificially delayed
solely to pursue further evidence through the use of this authority.
Where an investigation is being directed by the Justice Departnent
even though no formal referral from EPA has been made, EPA's
information request authority should .not be used as an investigative
tool. ' This..situation, however, should be' distinguished frcm the
situation where the Justice Department has merely been advised
of an investigation and has not exhibited any control over its
course.
The various environmental statutory provisions which grant
authority to request information from members of the regulated
community also contain limitations on the type of information
which nay be obtained through the use of this authority. Care
should be taken to draft any request to conform to these limita-
tions. In addition, it should be noted that a request based on
this statutory authority may only be made by an Agency employee
to whom the authority has been delegated by the Administrator.
Reference should be made to a properly updated EPA Delegations
Manual to ensure that any request is made by an employee with
proper authority. Finally, each such request should contain a
notice indicating that violations of the particular statute may
be the subject of either civil or criminal .penalties.
Discussion
The starting point for a discussion on the proper use of
information request provisions is a review of instances where
the Courts have found the use to be absolutely improper. The
Supreme Court has made it clear that information requests may not
be used to gather evidence in a criminal investigation once the
case has been referred to the Department of Justice for criminal
prosecution.^/ La Salle involved the use of an administrative
summons in a tax fraud investigation by.a Special Agent of the
IRS Intelligence Division. Although the statute provides both
civil and criminal remedies for violations, the agent testified
that the purpose of his investigation was to uncover any criminal
violations of the IRS code. During the course of his investiga-
tion and prior to referral of the case to the Department of
Justice, the agent issued an administrative summons for records.
The bank challenged the use of the summons as improper claiming
that the summons was issued solely to aid in a criminal
investigation.
United States v. La Salle National Bank. 437 U.S. 298
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-n-
Although the Supreme Court held that the summons should be
enforced, it used this case as an opportunity to elaborate on the
bounds of such summons authority. An administrative summons
must be used in good faith and for a Congressionslly authorized
purpose. Use solely to pursue a criminal investigation is not
good faith. However, a case may not be considered criminal
until an "institutional decision" is made to prosecute criminally.
The intent of the individual agent is not dispositive of this
issue. Thj.s institutional decision generally occurs at the
point of referral to the Department of Justice. However, the
Court made it"clear that a delay in submitting a case to the
Department of Justice merely to gather additional evidence for
the prosecution through use of administrative discovery devices
would not be tolerated. The Court also indicated the Agency cannot
use this administrative authority merely to become an information
gathering tool for other agencies regardless of the referral status
of the criminal case.
Although the wisdom of the La Salle decision has been ques-
tioned, the results have been followed in all other cases addressing
this issue succeeding that decision. Therefore, the "institutional
decision" to prosecute criminally should signal the end to a use
of all administrative discovery devices in any EPA case. As a
natter of policy, no use of administrative discovery devices to
secure evidence should be made once a case has been referred to
the Department of Justice.
A more difficult issue, within EPA's context, is whether
an "institutional decision" to use criminal sanctions may occur
at a point before referral to the Department of Justice. It is
clear that merely bringing an allegation of misconduct to the
attention of the Office of 'Criminal Investigations for investi-
gation does not constitute an "institutional decision" in favor
of criminal prosecution. Many of these investigations will, in
fact, become the basis for administrative or civil sanctions,
where initial allegations cannot be substantiated, or where the
case is otherwise lacking in prosecutorial merit. Further,
EPA's referral procedure for criminal cases requires review at
Headquarters before a case is referred. The final decision
rests with the Assistant Administrator for Enforcement and
Compliance Monitoring. Until that point is passed, the Agency
nay yet choose to proceed by civil action. Accordingly, this
policy adopts the La Salle holding that an "institutional decision"
occurs at the point of criminal referral, not before.
Information request authority may not be used in situations
where the Agency is perceived as merely an information gathering
tool for another agency. The Supreme Court in La Salle has made
it clear that where this is the case, evidence obtained may be
suppressed at trial. Of particular concern are those instances
where EPA has been requested to assist in an ongoing criminal
investigation by the Justice Department. Accordingly, a decision
by EPA to participate in such an investigation constitutes an
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-5-
"institutional decision" to proceed criminally that requires
approval by the Assistant Administrator for Enforcement and
'Compliance Monitoring, and precludes thereafter any use of
information request authority in that -case.
Justice Department involvement in an investigation prior to
referral does not necessarily negate the Agency's-ability to use
administrative discovery devices. Where the Justice Department
has merely been advised of the investigation and exhibits no
control over it, administrative discovery .devices may be used.
However, where the Justice Department attorney has assumed the
role of prosecutor and is directing the investigation, E?A
should re'fraih from making use of these tools. This will be the
case whether .the investigation is. initiated by EPA or whether
the Justice Department requests assistance with an ongoing
investigation.
It is necessary to remember that the character of the
information request authority does not change when utilized to
gather evidence in cases assigned to EPA's Office of Criminal
Investigations. Any limitations on the use of this authority
and the type of information which may be sought continue to
apply. The individual statute and Agency .guidance on the use of
such authority should be consulted before information request
authority is utilized.
Additionally, most environmental statutes grant such authority
directly to the Administrator.* The Administrator has^" delegated
this authority to various Agency employees. Reference should be
made to a properly updated EPA Delegations Manual to ensure
that any request is made by an Agency employee with appropriate
authority.
Finally, each information request made in a case being
developed by the Office of"Criminal Investigations should
contain a notice indicating that the statute under which the
request is made contains both civil and criminal sanctions for
violations. Such notice will negate any argument that the
individual receiving the request was misled into believing that
only civil or administrative sanctions could be imposed.
II. USE OF ADMINISTRATIVE INSPECTIONS AND ADMINISTRATIVE SEARCH
WARRANTS
Background
Each of the statutes enforced by EPA provides the Admini-
strator with the authority to conduct inspections to determine,
inter alia, the state of compliance with statutory requirements.
Statutory inspection authority is enforceable, where consent
is withheld, through the use of an administrative search warrant.
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The Supreme Court has determined that the Fourth Amendment
guarantee against unreasonable searches and seizures has equal
force for searches authorized by such regulatory scher-es as for
those necessary to obtain evidence of a crime.5/ In making this
determination, however, the Court has also recognized the inherent
differences between criminal searches and regulatory inspections
of commercial enterprises. The enforcement of regulatory schemes
such as those created by environmental statutes require regular
inspections. These inspections are limited in scope, and involve
b'usiness premises rather than private homes. Therefore, compliance
inspections are considered to pose a lesser threat to, expectations
of privacy.- 'To require a showing of probable cause in the tradi-
tional criminal law sense for an administrative warrant would
frustrate the enforcement of these systems.
As a result, the Supreme Court established a new standard
for administrative warrants, which can best be termed "administra-
tive probable cause." This standard requires a balawoir.g of
interests. "If a valid public interest justifies the intrusion
contemplated then there is probable cause to issue a suitably
restrictive warrant."_6/ The issuance of an administrative
warrant can be justified upon a showing that the premises
to be inspected were selected on the basis of a "...general
administrative plan for the enforcement of the [statute in ques-
tion]," or upon specific evidence of an existing violation of
regulatory requirements.7/ The Supreme Court was also willing
to create an exception from the need for even an administrative
warrant in the case of certain "pervasively regulated" industries
such as mining, firearms and liquor.8/ That exception, however,
is very narrow.
The issues addressed by this guidance arise from the
fact that most enforcement provisions of environmental statutes
contain both civil and criminal penalties for violations.
Therefore, most inspections conducted to determine compliance
with a particular statute or regulation may result.in the discovery
of evidence subsequently offered in a criminal, prosecution.
Because inspections may be conducted pursuant to an administrative
warrant requiring a less demanding showing of probable cause,
there is concern that such inspections will be used to circumvent
the traditional standards for criminal search warrants.
5/ Camera v. Municipal Court. 387 U.S. 523 (1967); See v. Cit:
of Seattle. 387 U.S. 541 (1967). '
6/ Camera v. Municipal Court, supra at 539 (1967).
y Marshall v. Barlow's Inc.. U36 U.S. 306 (1978).
Ł/ Donovan v. Dewey. 1*52 U.S. 59^ (1981); Colonnade Catering
Corp. v. United States. 397 U.S. 72 (1970) and United
State's v. Biswell. 405 U.S. 311 (1972).
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-7-
Issue
To what extent may administrative search warrants, based on
EPA's statutory inspection authorities, be used to gather evidence
in cases developed by the Office of Criminal Investigations?
Guidance
Administrative inspections may be conducted to gather
evidence «f. statutory violations until probable cause exists to
believe that a crime has been committed and it is clear that the
predominant purpose of such an inspection is to gather evidence
of a crime. This does not preclude the use of such inspections
to substantiate allegations. Rather, it limits the use of this
administrative discovery device once there is actual evidence of
a crime rising to the level of probable cause and further use of
inspections are for purposes of developing various aspects of
the government's criminal case. Once this point is reached,
entry must be gained only through pure consent (i.e. consent
gained without the assertion of statutory inspection authority)
or a criminal warrant.
Administrative inspections and warrants should not be used
to gather evidence for a criminal inquiry directed by the Depart-
ment of Justice even though no formal referral of the case, has
been made by EPA.
Discussion
Although the La Salle decision (see discussion in previous
section concerning Information Request Authority) deals with the
administrative summons authority of the IRS rather than inspection
authority, the rationale of that case is of value in inspection
situations as well. This position appears to have support in
case law regarding statutory schemes similar to the environmental
statutes. Although most of the cases examined were decided
prior to La Salle, evidence gathered during administrative
inspections has been found to be admissible in criminal trials
only where the inspections were properly conducted prior to the
referral decision by the Agency. Thus, as a starting point, the
guidelines adopted for use of information request authority as a
result of the La Salle decision also apply to administrative
inspections. At a minimum, administrative inspections—either
by consent or under administrative warrants—should not be conducted
once a case has been referred to the Department of Justice with
a recommendation for criminal prosecution. Similarly, if a
criminal investigation is being directed by an attorney from the
Department of Justice, administrative inspections should not be
conducted to gather evidence for the case even though the case
has not yet officially been referred to the Department.
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Where the institutional decision to prosecute has not yet
been made—i.e., where the case is under development by the
Office of Criminal Investigations prior to the initiation of
the referral process—courts have permitted the use of adminis-
trative inspections within particular parameters. 'Evidence
gathered during the execution of an administrative warrant may
be admissible during a criminal trial provided that the inspec-
tion under the warrant was properly limited to the scope of
authority provided by the statute.Ł/ This has been the case
even though., the administrative inspection was'conducted as a
result of allegations of criminal misconduct.lj)/ However, where
the evidence in question could not be discovered in a properly
limited inspection, these cases require the government to obtain
the informed consent of the facility or a criminal warrant based
on traditional criminal probable cause, prior to conducting a
search.
Both Goldfine and Consolidation Coal were decided prior
to La Salle. These cases each involve the admissibility of
evidence gained during searches conducted pursuant to an adminis-
trative warrant based on administrative inspection authority and
administrative probable cause. Each search occurred prior to
referral to the Justice Department for criminal prosecution. In
Goldfine, the broader of these cases, the evidence was obtained
during an audit by a DEA Compliance Officer. The defendants,
owners of a pharmacy, were not informed at the time of the audit
that their activities were under investigation. The investigation
at that point included reports of large orders of controlled
substances, surveillance of the pharmacy and arrests of some of
its-customers.
Consolidation Coal involved the validity of an inspection
based on an administrative warrant supported by an affidavit
which recited an allegation by an unnamed ex-employee that the
company was systematically evading the respirable coal dust
concentration standards. The company claimed that the criminal
standard of probable cause should have been used to judge the
affidavit. The company was indicted 16 months after this inspec-
tion for violations of the Coal Mine Health and Safety Act of
1969.
9/ United States v. Goldfine, 538 F2d 615 (9th Cir.) cert.
denied ^39 U.S. 1069 (1977).
10/ United States v. Consolidation Coal Company, 560 F2d 2U
T5th Cir. 1977) vacated and remanded ^36 U.S. 9^2 [for further
consideration in light of Marshall v. Barlow's Inc., supra]
judgment reinstated 579 F2d 1011 (6th Cir.1976} cert, denied
«3!Tu.5. 1069 (1979).
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-9-
In these cases, each court concluded that the inspections
were sanctioned by the statutes pursuant to which they ware
undertaken. The fact that these inspections were based .upon a
suspicion -of criminal misconduct did not erase their regulaToFy
character. Each statute, like environmental statutes, contained
both civil and criminal sanctions and no final decision had been
Bade to choose one type of sanction over another. .The real
issue was the scope of the search. Thus, the courts concluded
that, in order for the evidence to be admissible, the search
must retain the character of an administrative inspection. It
cannot extend beyond the bounds authorized .by .the statute. This
result has .been supported in at least one case since the La Salle
decision.11/
An administrative inspection may not change in character
when it is conducted in support of an investigation assigned to
the Office of Criminal Investigations. The authority granted is
that belonging to any EPA inspector conducting a compliance
inspection. The person conducting the inspection must have
iproperly delegated authority, Ca,re should be taken -to -follow
the Agency procedures for administrative inspections. This
includes such practices as the splitting of samples. Finally,
if a criminal investigator accompanies the inspection team,
credentials will be presented so that the facility is aware of
the participation of the Office of Criminal Investigations.
The next case which has impact on this issue is Michigan v.
Tyler.127 This case raises the issue of whether a criminal
warrant is required once an investigation has progressed to' the
point where probable cause to obtain such a warrant has been
gained. It does not address the use of administrative inspections
and administrative search warrants in criminal investigations.
It is included here becausfe other courts have referred to this
opinion in cases involving the administrative inspection issue.
Michigan v. Tyler involves the admissibility of evidence
of arson gained during a number of warrantless, non-consensual
searches of the burned premises both during and after the fire.
The Supreme Court concluded that while in the building to put
out the blaze, firefighters may seize any evidence of arson which
ll/ In United States v. Prendergast. 585 F2d 69 (3d Cir. 1978),
the Court considered its decision in light of La Salle. It
concluded that no violation of the La Salle standard had occurred
because DEA had not made a commitment to a criminal prosecution
prior to obtaining a warrant. 585 F2d at 71 n.l.
12/ 436 U.S. 499 (1978).
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is in plain view. Officials may remain in the building for a
reasonable period after the fire has been extinguished to
investigate the cause. However, if during the investigation
they discover probable cause to believe that arson was conoit
and they wish further entry after the fire has been extinguished
to gather evidence, a warrant upon a showing of traditional
criminal probable cause must be obtained.13/
The Supreme Court's decision was based on its view of the
privacy expectations of an owner of a burned building. Initially,
.the owner's expectation of privacy must give way to a need of
'entry by firefighers to fight a blaze. However, once the fire
is extinguished an expectation of privacy returns despite the
condition of the building. From that point on, the Court concluded,
a search warrant is required for further entry onto the premises.
In United States v. Lavson,IV the District Court for Maryland
turned to Michigan v. Tyler while reviewing the admissibility of
evidence gained during an administrative search conducted by DEA
agents. The Court found that the agent applied for the warrants
at the request of the Assistant United States Attorney after the
Agency had made an "institutional commitment" to a criminal
prosecution. In reviewing the case law on use of administrative
warrants, the Court cited Michigan v. Tyler as requiring a criminal
search warrant for entry whenever "the purpose behind the search
shifts from administrative compliance to a quest for evidence to
be used in a criminal prosecution. "1_5/ Clearly, once a case has
been referred to the Department of Justice for a criminal prose-
cution, this point has been reached. However, the Lawson Court
left open the question of whether this point can be reached at
an earlier stage in the investigation prior to the institutional
decision to refer the case for criminal prosecution.
In United States v. Jateieson-McKames Pharnaceuticals,l6/
the Eighth Circuit also reviewed the application of Michigan v.
Tyler. This case concerned regulatory inspections by DEA agents
prior to referral of the case for prosecution. The Court concluded
that Tyler did not have application to a pervasively-regulated
1j / Michigan v. Tyler, 'Supra at 508.
_U/ 502 F. Supp. 156 (MD, 1980).
jj/ United States v. Lawson, supra at 165.
JI6/ 651 F2d 532 (8th Cir. 1981).
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-11-
industry such as drug manufacturing. 1J/ In a pervasively-regulated
industry, there is a limited expectation of privacy. Therefore,
the rationale for the Tyler decision was inapplicable. The
Court concluded that a criminal warrant was not required despite
the fact that evidence was available prior to the inspection to
indicate that a criminal violation may have occurred. The Court
re-turned to the rationale of Goldfine and Consolidation Coal and
held that the warrants based on administrative probable cause
were valid in this situation as long as the intrusion was limited -
to the purpose specified in the statute. This result has also
been supported by the Sixth Circuit.18/
The full impact of Michigan v. Tyler on administrative
inspection cases is not yet clear. Although La Salle seems' to
limit use of administrative discovery devices in investigations
of criminal misconduct only after an institutional decision to
prosecute is made, MichigŁj>-v. Tyler can be read as a limit on
the use of these devices prior to referral, at that point where
probable cause exists to believe a crime has been committed.
Where an investigation focussing on potential criminal violations
has'progressed to a stage where there is probable cause to believe
that a crime has been committed and the predominant purpose for
an inspection is to gather evidence of the crime, administrative
inspection authority should not be utilized. Rather, entry
should be obtained by pure consent (i.e., consent obtained -vithout
the assertion of statutory inspection authority) or by use of a
criminal search warrant obtained under Rule ^41 of the Federal
Rules of Criminal Procedure.
III. WARRANTLESS INSPECTIONS
Background
The language of the inspection provisions of environmental
statutes can be read to grant authority to conduct inspections
without a warrant where entry is denied. Although the Supreme
17/ The Eighth Circuit in this case determined that the drug
manufacturing industry falls within the exception to a warrant
requirement created in Colonnade Catering Corp. v. United States,
supra and United States v. Biswell, supra. This is not
necessarily the case with environmental statutes. See discussion
on warrantless inspections, infra.
^8/ United States v. Acklen. 690 F2d 70 (6th Cir. 1982).
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-12-
Court has sanctioned warrantless inspections for certain
pervasively-regulated industries,!Ł/ this has not been the case
for every regulatory program. In Marshall v. Barlow's Inc., -t&e,
Suprene Court held that an OSHA inspector was not entitled to
enter the non-public .portions of a work site unless "he,.Deceived
the owner's consent or possessed a warrant. The Court indicated
that warrantless entry would be upheld only in very rare cases—
pervasively-regulated industries with a long history of government
regulation or where the government could demonstrate that a
warrant requirement would substantially impair the regulatory
scheme.
Issue
Are warrantless inspections authorized under environmental
statutes where entry is denied following the assertion of "statutory
inspection authority?
Guidance and Discussion
. At least one Court has indicated that the result of the
Barlow*s decision was equally applicable to environmental
statutes.2^)7 The Court commented that in light of Barlow's
a warrant was required for entry pursuant to the Clean Air Act
absent consent by an authorized individual. The Agency has also
taken this position in guidance to Agency inspectors after the
Barlow's decision.2\J We will not deviate from the that guidance.
Where consent to inspect is not granted, an administrative warrant
should be sought. This applies to all statutes including the
Federal Insecticide, Fungicide and Rodenticide Act.
19/ Donovan v. Dewey, supra (mining facilities), United States
v. Biswell, supra (firearms), and Colonnade Catering Corp.
v. United States, supra (liquor).
20/ Public Service Company v. EPA. 509 F. Supp. 720 (S.D. Ind. 1981)
21/ One possible exception recognized in Agency guidance is
an inspection conducted pursuant to authority under the Federal
,Insecticide, Fungicide and Rodenticide Act (FIFRA). There is
a long history of federal regulation concerning pesticide
manufacture. The first federal statute in this area was
enacted in 1910. In addition, these regulations are limited
to one industry rather than applying a set of regulations to
industry across the board. Finally, in an administrative
case decided after Barlow's, a civil penalty was assessed
against the owner of a FIFRA regulated establishment for
refusal to allow a warrantless inspection, N. Jonas & Co.
Inc.. I.F.&R. Docket No. III-121C (July 27, 1976).Despite
this fact, the Agency has taken the position that inspections
under FIFRA should be conducted pursuant to a warrant where
consent is not given.
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IV. APPLICATIONS FOR ADMINISTRATIVE WARRANTS IN CASES
TO THE OFFICE OF CRIMINAL INVESTIGATIONS
Background
As indicated in the previous section, unless consent is
granted, an administrative warrant will be necessary in order
to gain entry to conduct an administrative inspection under any
of EPA's .statutes. The Supreme Court in Marshall v. Barlow's
Inc. offered" guidance on the type of showing necessary to
justify the issuance of an administrative warrant. Probable
cause to support the issuance of an administrative warrant
nay be based upon a showing either (1) that there is specific
evidence of an existing violation of regulatory requirements
or (2) that the decision to inspect is based on a neutral
inspection scheme.Ł2/ This showing must demonstrate that
the public interest in conducting the inspection outweighs
the invasion of privacy which the inspection may entail.23/
Issues
When should such warrant be obtained? What type of
showing must be made in order to obtain an administrative
search warrant? How should the inspection be characterized?
Guidance
On routine inspections, EPA generally has not sought an
administrative warrant until an inspector has been refused entry.
The law, however, does not preclude the Agency from seeking
a warrant before entry is 'denied. Where surprise is crucial
to the inspection or prior conduct makes it likely that
warrantless entry will be refused, a warrant should be sought
prior to inspection.
Neutral inspection schemes should be used as a basis for
administrative warrants only where there is no evidence of an
existing violation. Since cases assigned to the Office of
Criminal Investigations will almost invariably involve specific
allegations of misconduct, the neutral inspection scheme rationale
v/ill normally be inapplicable. Once evidence of a potential
violation has been discovered, this evidence should be used as
22/ Neutral inspection schemes are those which are non-discri-
minatory, such as a scheme which requires the inspection of every
third facility on the list of facilities with NPDES permit.
,2_3/ Camera v. Municipal Court, s_up_ra_.
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the basis for obtaining a warrant. The evidence available should
be described with specificity in the affidavit supporting the
warrant. For example, if the warrant is sought on the basis of
an employee's complaint, the affidavit should set forth in detail
the substance of the complaint, the circumst-ances in which the
complaint was provided and the relationship of the complainant
to the facility to be inspected. In addition, the application
should include all corroborative evidence available. The applica-
tion oust also describe the alleged violation. Simply stating
that there are reasonable grounds to believe that some violation
of an environmental statute had occurred will not be sufficient.
Both potential civil and criminal violations should be listed.
Finally, the application should also state with specificity
the objects of the search. This should be done with the sane
degree of detail that would be used if applying for a criminal
warrant. However, the scope of the search described must be
limited to the traditional scope of an administrative inspection.
The objects of the search may not be outside o-' that authority.
In addition, where an alleged violation is the basis for a warrant,
the objects of the search must relate to that violation.
The use of administrative discovery devices in investigations
assigned to the Office of Criminal Investigations also raises an
issue regarding the appropriate characterization of the investi-
gation. Because an institutional decision to refer the case for
criminal prosecution has not been made, the case is not exclusively
criminal in nature. However, care oust be taken not to mislead
the individual to believe that criminal charges will not be
contemplated. If the issue is raised, EPA officials should
indicate that environmental statutes contain both criminal and
civil penalties, and that the Agency considers all enforcement
options open.
Discussion
Recent cases concerning administrative inspections under
OSHA have raised issues concerning the standard of probable
cause required for the issuance of administrative warrants
and the scope of an inspection where the warrant is based on a
complaint rather than a neutral inspection .scheme. The
rationale used by the courts in these decisions arguably also
has application in the area of inspections under environmental
statutes.
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Several circuit courts have concluded that where a complaint
alleging a violation is the basis for an administrative warrant,
the information necessary to establish probable cause for such a
warrant will be more extensive than that required for a warrant
based upon a neutral inspection scheme.2J{/ This showing, however,
is still significantly less than that necessary to establish
probable cause for a criminal search warrant. These decisions
are based on the view that questions .of reliability of evidence
and probability'of violation are not raised when a warrant is
issued pursuant to a neutral inspection scheme since the subject
of the inspection is chosen through the application of neutral
criteria. The magistrate need only ensure that the inspection
comports with the legislative or administrative guidelines con-
cerning such inspections.
Where the inspection is based upon evidence of a violation,
there are no assurances that the target was not chosen for purposes
of harassment. Therefore, these courts require that the affidavit
contain sufficient information to allow the magistrate to make an
independent assessment of the reliability of the claim that a
violation exists. For example, in cases involving employee
complaints, the ideal affidavit would indicate the person who
had received the complaint, the relationship of the complainant
to the target facility—i.e., employee, customer, competitor—the
underlying facts and any steps taken to verify the complaint.25/
If the complaint was made in writing, a copy should be attached.
Although this requirement has not yet been adopted in ail
circuits or by the Supreme Court, it may be assumed that such a
requirement may be placed 'on EPA in a number of jurisdictions.
Therefore, affidavits for administrative warrants issued in.
conjunction with a case assigned to the Office of Criminal
Investigations should set forth in detail the substance of the
2V Donovan v. Sarasota Concrete Co., 693 F2d 1061 (llth Cir,
1962); Marshall v. Horn Seed Co.. Inc.t 6^7 F2d 96 (10th
Cir. 1961); BuFkart Randall Division of Textron Inc. v.
Marshall. -625 F2d 1313 (7th Cir. I960).
25 / Marshall v. Horn Seed Co., Inc., supra at 103-
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-16-
violation and provide all corroborative evidence available.
The application should also specifically describe the alleged
violation.26/
The scope of an administrative inspection also presents an
issue. As previously noted, such inspections do not lose their
administrative character simply because their purpose is, in
part, to corroborate an allegation that may become part of a
criminal prosecution. Any limitations contained in the statutes
apply with equal force and oust be observed.
A further'issue is raised where inspections are conducted
pursuant to an administrative warrant issued as a result of an
allegation of a violation. The Eleventh Circuit, in an OSHA
case, concluded that where an administrative warrant was obtained
as a result of a complaint regarding a localized condition at
the facility, the search should be limited to that localized
"Verea.S^T/ The thrust of this opinion is that the scope of the
inspection should be limited to what is reasonably related to
the violation which is the basis for the warrant. Although
there are other decisions to the contrary,Ł8/ as a matter of
policy such inspections should be limited to those areas which
bear a relationship to the violation alleged.
26/ Weyerhaeuser v. Marshall, 592 F2d 373, 378 (7th Cir. 1979)
Tn that"case the Court concluded that a showing of probable
cause had not been made where the warrant application contained
the following language:
"2. On June 24, 1977,. the Occupational Safety and
Health Administration' (OSHA) received a written
complaint from an employee of Weyerhaeuser Company,
a corporation. This complaint alleged, in pertinent
part, that violations of the Act exist which threaten
physical harm or injury to the employees, and an
inspection by OSHA was requested. Based on the
information in the complaint, OSHA has determined
that there are reasonable grounds to believe that
such violations exist, and desires to make the
inspection 'required by Section 8(f)(l) of the Act."
592 F2d at 378 n.l.
277 Donovan v. Sarasota Concrete Co., supra at 1069. The
complaint dealt with improper maintenance of cement-mixer
trucks. However, OSHA inspectors used the administrative
warrant issued on the basis of this complaint to inspect
the entire facility including the trucks.
'28/ See, e.g., Hern Iron Works, Inc. v. Donovan, 670 F2d 838 (9th
ZTr. 19^2); In re Establishment Inspection of Seaward International
v. Marshall, 510 F. Supp. 3U (W.D. Va. 1980) aff'd without opinion
F2d 860 (4th Cir. 1981).
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I XW7 a UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
\ &l^/ WASHINGTON, D.C. 20460
*'«< P***
OFFICE OF ENFORCEMENT
AND COMPLIANCE
MAR I 2 1985
MEMORANDUM
SUBJECT: The Role of EPA Supervisors During Parallel Proceedings
FROM: Randall M.
Director, Office of Criminal Enforcement
TO: General Distribution
Attached is a copy of the recently issued guidance
explaining the role of EPA supervisors during parallel civil
and criminal proceedings. All supervisors and staff who may
become involved in matters that have both criminal and civil
enforcement potential should become familiar with the guidelines
set forth in the memorandum.
Although the concepts in the guidance may appear difficult
upon a first reading, it is necessary to have a full understanding
of the issues in order to make an informed decision about whether
the supervisor should remain on the civil side of the case or
the criminal side (or in rare circumstances, on both sides).
Questions concerning the guidance should be directed to
Peter Murtha or myself (FTS 557-7410, 703-557-7410).
Attachment
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^1° sr«v
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MAR I 21985
OFFICE OF ENFORCEMENT
AND COMPLIANCE
MONITORING'
The Role of EPA Supervisors During .Parallel Proceedings
MEMORANDUM
SUBJECT:
FROM: Courtney M. Price V
Assistant Administrator for1 Enforcement
and Compliance Monitoring
TO: Assistant Administrators
Office Directors
Regional Administrators
Regional Counsels
Inspector General
Director, NEIC
I. Introduction
The Agency's mission is on occasion best served by the
pursuit of simultaneous civil/administrative enforcement actions
and criminal investigations and prosecutions of the same party(ies)
and relating to the same essential subject matter, i.e., parallel
proceedings.!/ Parallel proceedings are applicable, for example,
where a person's willful environmental misdeed both merits a
criminal sanction and requires a "cleanup" response. Such
proceedings require special caution by both supervisors and
staff in their use. Failure by Agency personnel to recognize
and understand the unique problems raised by parallel proceedings
could delay or otherwise jeopardize both the civil/administrative
and criminal proceedings. This guidance establishes supervisory
procedures for persons whose responsibilities involve management
of staff who work on both sides of the parallel proceedings.
I/ Supervisors who do not exercise such dual responsibilities
are not covered specifically in this document. These individ-
uals, as well as non-supervisory personnel who could be poten-
tially involved in parallel proceedings, should refer to the
memorandum entitled "Policy and Procedures on Parallel Proceed-
ings at the Environmental Protection Agency," issued on
January 23, 1984 ("General Parallel Proceedings Guidance")
(Attachment).
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-2-
This guidance is designed to avoid two primary~prtf-ail-s .
associated with parallel proceedings. First, for a variety of
reasons, 2/ care must be taken to ensure that each side of parallel
proceedings has a legitimate and independent basis. Second,
safeguards must be employed to guarantee that grand jury proceedings,
and the information developed therein, are devoted exclusively
(except as noted at Section (V)(A), pp. 6-7 note 10; and Section
(V)(D), pp. 9-10, infra) to their sole intended use: prosecution
of criminal cases.
Each supervisor subject to this guidance is responsible
for ensuring that staff are aware of and conform to the procedures
set forth below. Particular care should be taken to note the
evolving nature of these requirements as the criminal matter
proceeds from a mere allegation made to the Agency to an active
grand jury investigation. Supervisors are encouraged to supple-
ment this guidance by developing policies and practices for
individual cases as needed to achieve its objectives.
II. The Supervisory Role Prior to the Active Involvement of
the Department of Justice (DOJ)
Prior to the active involvement of DOJ 3/ in the criminal
case, the Agency supervisor generally may continue managing
his/her staff on both sides of the parallel actions.4/ The
degree of permissible involvement by the supervisor Tn the
criminal investigation is not dependent upon the course or
the stage of the civil/administrative action.
2/ See General Parallel Proceedings Guidance at 1.-4.
V In this context, "DOJ" refers to any United States Attorney's
Office, as well as to DOJ Headquarters, but does not include
the Federal Bureau of Investigation.
\J This guidance presumes that ordinarily DOJ would become
actively involved in a case soon after EPA became aware that
there was probable cause to believe that a particular individual
or entity had committed a potentially criminal violation. This
will be the case whether DOJ's involvement is initiated by
informal contacts, e.g., by the case agent from EPA's Office
of Criminal Investigations, or through the formal referral
(continued)
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-3-
At no point may a supervisor request that any personnel
working on the criminal case use any criminal investigative
or discovery tools for the primary purpose of benefitting the
Agency's position in the civil/administrative matter or vice
versa. Strictly as a matter of law, information obtained by
the criminal and the civil/administrative staffs ordinarily
may be freely exchanged at this stage, assuming that each
proceeding is designed to meet its own distinct and legitimate
goal. (In many cases, however, preserving the secrecy of the
criminal investigation and preventing the disclosure of documents
to the defendant through the liberal civil/administrative
discovery process would militate against the use by the civil/
administrative staff of documents or other information produced
by the criminal investigation team.) Nonetheless, supervisors
may wish to consider withdrawing from their case supervision
duties 5/ on one side of the parallel proceedings to minimize
the possibility that abuse of either process is alleged later.
Even prior to criminal referral a defendant/respondent in
a civil/administrative proceeding may not be misled into believing
that information he/she/it supplies will not be used in a criminal
proceeding.6/ Moreover, individuals who are not aware that they
are targets of the parallel criminal investigation and who give
testimonial evidence at an administrative hearing, a civil trial,
or in the form of interrogatories or depositions, may have a
Fifth Amendment privilege which, arguably, has not been waived..
In such a situation, DOJ- will evaluate the matter in a effort
process. Generally, the assignment of a DOJ prosecutor to a
criminal matter at any stage, e.g., to obtain a criminal search
warrant, would constitute "active involvement." In any event,
ordinarily DOJ will be presumed to be "actively involved" no
later than the date of its receipt of the criminal referral
from the Assistant Administrator for Enforcement and Compliance
Monitoring.
j>/ Case supervision, in this context, includes the supervisor
advising the staff about such matters as strategy, investigative
procedures, legal issues and the course of the case development
for a specific case.
Ł/ If the Agency attempted to use information in a criminal
proceeding that was gained through such misrepresentations, the
defendant could argue that the evidence should be suppressed,
or (in extreme cases) that the indictment should be dismissed,
due to violation of the right to due process-and (in the case
of individuals) the right against self-incrimination. (Corpora-
tions, in contrast to individuals, are not protected by the
Fifth Amendment's self-incrimination clause.) See General
Parallel Proceedings Guidance at 4-6.
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-4-
to determine whether or not it is appropriate to transrniT"such
evidence to members of the criminal enforcement team.!/ Where
the criminal target has been made aware of the existence or
potential for parallel criminal action, however, such information
may be freely exchanged.
•
Staff members working on the parallel civil/administrative
case must document when and under what circumstances any testi-
monial information from a current or potential criminal individual
target—who has not been made aware of the potential for criminal
enforcement—was obtained before transmitting that information
to a supervisor who has not withdrawn from the criminal action.
Such material should be specially marked to prevent inadvertent
disclosure. This will alert the supervisor to consult with
DOJ prior to reviewing such material or disseminating it to
Agency personnel pursuing the criminal matter.
III. After the Active DOJ Involvement: The Supervisor's
Decision Whether to Withdraw from the Criminal (or the
Civil) Matter
Prior to the commencement of the grand jury, there is no
strict legal bar to an Agency supervisor being a member of the
prosecution team and directing the civil/administrative matter.
Once DOJ begins to direct the day-to-day investigative activities
of the prosecution team, the Agency supervisor who has been
performing case supervision activities on either side of a
parallel investigation or prosecution should re-evaluate his/her
continuing role in the investigations. To avoid any appearance
that one proceeding is being used to impermissibly bolster the
other, it is generally the better practice for a supervisor to
withdraw from one side of the parallel proceeding or the other.
Discretionary withdrawal will reduce the possibility that the
Agency will need to defend its position regarding the conduct
of an investigation or prosecution.
An Agency supervisor who chooses to retain case super-
visory responsibilities and become a part of the prosecution
team will work under the direction of the prosecutor(s) 8/ in
designing and conducting the investigation and prosecution.
7/ See General Parallel Proceedings Guidance at 6, 9-10.
8/ Often, there will be one prosecutor from the Environmental
Crimes Unit of the Land and Natural Resources Division of DOJ
Headquarters and another from the United States Attorney's
Office where the prosecution is being brought, in which case
joint guidance to the prosecution team would be provided.
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-5-
A supervisor who has chosen to withdraw from case supervision
duties associated with one side of parallel proceedings is not
precluded from being informed about non-sensitive information
concerning the proceeding from which he/she has withdrawn
necessary for the performance of his/her routine management
functions. Supervisors can know the amount of staff and labora-
tory support required, the need for outside consultants, the
dates and expense of travel, the duration of the investigation,
and the facilities and individuals being investigated except as
precluded by Fed. R. Crim. P. 6(e) (see pp. 6-7, infra), etc.
IV. The Role of the Agency Supervisor in Parallel Proceedings
After the Active Involvement of DOJ in the Criminal Matter
but Prior to the Commencement of a Grand Jury Investigation
A. Permited Communications and Decision-making
An Agency supervisor may generally be privy to all inform-
ation about both cases (except that supplied by an individual
unaware of a parallel criminal investigation, see Section II,
at 3-4, supra) and may fully participate in all Agency decision-
making concerning them. Notwithstanding this rule, it is wise
for a supervisor to consider whether his/her involvement in the
case supervision of both sides of parallel proceedings is truly
desirable, given the possibility that allegations of abuse of
either process could arise.
Where the Agency supervisor is both part of a prosecution
team and involved in the case supervision of the civil/admini-
stration matter, the following rules must be adhered to:
1. With Respect to the Criminal Investigation. Communi-
cations by the supervisor pertaining to the criminal case must
be directed only to members of the prosecution team or to those
Agency or DOJ units devoted exclusively to criminal investigations
and prosecutions, i.e., the Criminal Division of the local
United States Attorneys' Offices, DOJ's Environmental Crimes
Unit, EPA's Office of Criminal Investigations and EPA's Criminal
Enforcement Division.
2. With Respect to the Civil/Administrative Investigation.
Communications by the supervisor pertaining to the civil/admini-
strative matter must be directed only to Headquarters, Regional
program and/or NEIC staff involved in the civil/administrative
matter. Such communications shall be withheld from all Agency
personnel on the prosecution team and those Agency units devoted
exclusively to criminal investigations and prosecutions.
3. Staff Meetings and Documents. Supervisors should hold
separate staff meetings for the personnel working on the respective
sides of parallel proceedings to the extent that the case will
be discussed. Supervisors must not allow distribution of infor-
mation, documents, memoranda or other writings which should be
withheld from respective parts of their staffs.
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-6-
B. Alerting Supervisors to Commencement of Grand Jury
Proceedings
Supervisors directly involved in the management (but not
case supervision) of a criminal matter must be aware of exactly
when a grand jury proceeding is commenced to assure that he/she
will not inadvertently learn about grand jury information.
In situations in which the supervisor is not integrally involved
with the prosecution team and therefore might not automatically
be informed of such event, his/her staff pursuing the criminal
matter should be alerted to immediately so inform (or request
the DOJ prosecutor(s) to so inform) him/her. This notification
must be limited solely to the fact that the grand jury will
investigate the same essential matter being pursued in the
civil/adminstrative proceeding, and must not include what has
transpired in the grand jury.9/
In most cases, once a case is referred to DOJ for investi-
gation or prosecution, a grand jury will be initiated soon
thereafter. Thus, the guidance presented in this section
regarding the supervisor's role during parallel proceedings
usually will quickly be supplanted by the even more stringent
guidance pertaining to the period after the initiation of the
grand j.ury decribed below.
V. The Role of the Agency Supervisor After the Commencement
of a Grand Jury Investigation
A* Access to Grand Jury Material under Rule 6(e)
An Agency supervisor is not allowed to have access to grand
jury material 10/ unless specifically authorized (see below)
due to the limitations on disclosure found in Rule 6(e) of the
Federal Rules of Criminal Procedure. A limited exception to
_9/ Alerting such supervisors to the commencement of the grand
3ury is intended solely as a prophylactic measure to prevent
disclosure of priviledged material. Supervisors who have been
so alerted must not inform anyone of the existence of a grand
jury and, if pressed on the matter, should refer the person
requesting the information to the DOJ prosecutor(s).
10/ To prevent unauthorized dissemination of grand jury material,
it is necessary to define "grand jury material." The broadest
view of this term would include: all witness testimony, the
names of grand jury witnesses, the subject matter of the grand
(continued)
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-7-
the general rule of nondisclosure, Rule 6(e)(3)(C)(ii ) , specifies
that only "such government personnel as are deemed necessary
by an attorney for the government [i.e., the DOJ prosecutor(s)
and Agency attorneys that have been designated as Special
Assistant United States Attorneys for particular cases]" to
assist in the enforcement of federal criminal law are to be
granted such access (emphasis supplied). Rule 6(e) has two
primary purposes: to preserve grand jury secrecy and to prevent
prosecutorial abuse. Thus, some courts have narrowly construed
this provision to allow only agents and experts actively involved
in the investigation to have access to grand jury material. It
is the policy of DOJ not to place an individual on the so-called
"6(e) list,"ll/ allowing access to grand jury material, merely
because that~~Tndividual supervises a person who is on the
list.
jury investigation, sununarizations of grand jury testimony,
documents submitted to the grand jury, the direction and focus
of the grand jury investigation, conclusions reached as a
result of the grand jury investigation, and information obtained
as a result of grand jury testimony. See, e.g. , Fund for
Constitutional Government v. National Archives and Records
Service, 656 F.2d 856 (D.C. Cir. 1981).However, documents
which are obtained by means independent of the grand jury or
created for a purpose independent of the grand jury are typically
not within the scope of Rule 6(e). See, e.g., United States
v. Interstate Dress Carriers, Inc., 280 F.2d 52, 54 (2d Cir.
1960). (To be prudent, it is best to check with the DOJ prose-
cutor(s) to ascertain what precisely constitutes "grand jury
material" under the interpretation of a particular federal
district court.) Therefore, documents and records which would
be otherwise available as part of a civil/administrative proceeding
can generally (depending upon the prosecutor's evaluation of
the law of the relevant court) continue to be available to the
civil/administrative staff (and the supervisor if he/she has
withdrawn from the criminal matter) even if the grand jury has
been presented with copies of these same records and documents.
Such "otherwise available" documents could include, for example,
information produced pursuant to an administrative letter audit
or inspection or materials produced by the criminal investigations
team prior to the convening of the grand jury, such as interview
reports, sampling results, audits, etc. (however, see caveat
concerning sharing of criminal and civil information at
Section II, p. 3). Additionally, grand jury material used in
open court or contained in the public court papers in the
criminal case may then be utilized in the civil/administrative
proceeding.
ll/ The DOJ prosecutor(s) are required under Rule 6(e) to promptly
disclose to the court a list of the names of the government person-
nel assisting in the prosecution to whom grand jury material
has been disclosed.
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-8-
B. Mandatory Withdrawal from the Civil/Administrative
Action by a Supervisor on the 6(e) List
When a supervisor believes that it is necessary to have
access to grand jury material, it may be appropriate for him/
her to join the criminal prosecution team (if he/she has not
already done so). In such a case, a request together with the
reasons therefor should be made to the DOJ prosecutor(s) for
the supervisor to be placed on the 6(e) list.
After a grand jury has been convened, if a supervisor is
part of the prosecution team then he/she must without exception
withdraw completely and immediately from all responsibilities.
involving the parallel civil/administrative action other than
routine management functions.
Note that failure to conform to the nondisclosure require-
ments of Rule 6(e) may lead to a variety of court sanctions
which could have significant adverse effects on the Agency's
criminal case, the individuals involved and the Agency's
entire criminal enforcement program. These potential sanctions
include contempt citations, the removal of the prosecuting
attorney(s) from the case, disclosure of the grand jury material
to the opposing party, and, in extreme cases, dismissal of the
indictment.
C. Requests for Information by a Supervisor Not on the
6(e) List
It is essential that substantive information about a parallel
criminal case released to a supervisor who is not on the 6(e)
list be within permissible bounds. Where the supervisor
anticipates that he/she will make numerous inquiries regarding
the criminal matter, the supervisor should request routine
briefings by the DOJ prosecutor(s), who would determine what
information may be revealed.
Alternatively, once a grand jury proceeding has begun, all
communications concerning the transfer of information potentially
subject to Rule 6(e) between such a supervisor and his/her
staff who are on the 6(e) list should be made only in writing.12/
12/ The disclosure of management-related information clearly
not within the purview of Rule 6(e) (see discussion at
Section III, p. 5, supra) would not need to be so documented.
If the "in writing" approach is taken, it would be useful for
the supervisor to maintain a log for each such parallel proceeding
indicating, with respect to each such request for information:
the date of the information request, to whom the request was
made, a brief indication of the response to the request, and,
if information was disclosed, the reason it was not privileged.
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-9-
This procedure allows the staff member responding to the request
to determine carefully (if necessary, after consultation with
the prosecutor(s)) which material (for example, because of its
pre-grand jury genesis or because of its independent source)
may be properly disclosed. However, this procedure would
probably prove more cumbersome than briefings by the prosecutor(s),
and could have the added cost of possibly creating material
which arguably could be required to be turned over to the
defense under the Brady doctrine.13/
Under rare circumstances, a supervisor might not anticipate
that a question to Agency personnel could elicit grand jury
material. To avoid inadvertent transfer of improper information,
the Agency will consider both the supervisor and the respective
staffs to be responsible for ensuring that privileged information
is not disclosed. A staff member must decline to respond to a
supervisor's information request which would disclose grand
jury information. Similarly, a supervisor must decline to
respond to a staff member's information request that would
disclose any information revealed by the defendant/respondent
in the civil/administrative proceeding which (as discussed at
Section II, pp. 3-4, supra) might be inappropriate to disclose.
(In either case it would also be appropriate to refrain from
disclosing information and to refer the person requesting the
information to the DOJ prosecutor(s) concerned with the matter.)
The supervisor must rely upon the judgment of the staff member,
and vice versa, in withholding the requested information when
necessary.
D. Request by Agency Supervisor on the 6(e) List to
Disclose Grand Jury Information to Agency CiviT/
Administrative Personnel
Supervisors on the 6(e) list who believe that there exists
a "particularized need" for grand jury material to be disclosed
to their staff working on a pending (or anticipated) parallel
civil suit may not release, directly request the court to release,
or request their staff to seek the release of, that material.14/
13/ The Brady doctrine, in essence, requires that upon specific
request by a criminal defendant, a prosecutor must disclose
evidence favorable to the accused that is material to guilt or
punishment. Brady v. Maryland, 373 U.S. 83 (1963).
14/ It is DOJ policy that only "attorneys for the government"
may request the disclosure of grand jury material. Moreover,
if a supervisor were to disclose to his/her staff (not on the
6(e) list) the existence of such material so that they might
then seek it, it is probable that such disclosure, in and of
itself, would violate Rule 6(e).
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-10-
However, the supervisor may request the DOJ prosecutor(s) to
seek the release of such material. See United States v. Sells
Engineering, Inc., U.S. , 103 S. Ct. 3133, 3168-69 (1983).
DOJ prosecutors who through a grand jury investigation become
aware of information which is unknown to the Agency and for
which the Agency has a "particularized need"—for example,
evidence of a serious public health hazard—may initiate appro-
priate action through the courts to seek disclosure»j.5/
VI. Communications with DOJ
If a supervisor wishes to communicate with DOJ with respect
to a particular investigation or litigation in connection with
the practices set forth herein, but has not yet established a
DOJ contact for that particular matter, he/she should use
generally the following procedures. Headquarters and other
non-Regional supervisors should contact the Office of Criminal
Enforcement (FTS 557-7410) and request the assistance any of
the staff attorneys. Regional supervisors should request the
assistance of the Criminal Enforcement Contact within the
Regional Counsel's Office for his/her Region. These attorneys
will help ensure that necessary contacts with the appropriate
DOJ prosecutor(s) are expeditiously made.
VII. Reservations
The policies and procedures set forth herein, and internal
office procedures adopted pursuant hereto, are not intended, do
not, and may not be relied upon to, create a right or benefit,
substantive or procedural, enforcible at law 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.
15/ Ordinarily, DOJ should designate the lead EPA attorney on
the pending civil litigation (generally the Regional Attorney
assigned to the case), if one has been established, to receive
such information. However, if no lead attorney has been
established, the information may be transferred to the appro-
priate Regional Counsel.
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3f
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
APR 15 (985
OFF1CF OF ESFORCFMFNT
ANDCOMPLKNCF
MONITORING
MEMORANDUM
SUBJECT: Remittance of Fines and Civil Penalties
FROM: Courtney M.
Assistant Administrator for Enforcement
and Compliance Monitoring (LE-133)
TO: Associate Enforcement Counsels
Director, Office of Compliance, Analysis and
Program Operations
Regional Counsels
This is to inform you of a new Agency remittance procedure
instituted by the EPA Office of the Comptroller. The procedure
applies to payments on all debts owed EPA, including civil
penalties assessed by the Agency.
All EPA orders requiring payment of fines or civil penal-
ties — or letters transmitting those orders — will include language
consistent with the new procedure, which is described below.
EPA has adopted the Department of Treasury's Nationwide
Lockbox System for receipt of payments on debts owed to the
Agency. Under the Lockbox System, debtors are directed to remit
payments to the Post Office Box address used by the designated
EPA lockbox bank. Payments received at that "lockbox" are
deposited immediately by the responsible bank, and the Agency
receives a copy of the remittance and all accompanying documents
within one working day. Users of the system have found that
the lockbox has several benefits: Improved cash management,
increased physical security for the checks, stronger internal
controls, and a reduced administrative burden.
For your information, I have attached a listing that shows,
for each region and for EPA Headquarters, the lockbox address
to which payments of penalties owed the Agency will be sent.
(Remittances for Superfund billings nationwide are sent to a
single lockbox address. )
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-2-
Chief Administrative Law-Judge Edward Finch is directing
all Agency administrative law judges and hearing clerks to
implement this new procedure.
The new procedure supersedes the requirement in the Consol-
idated Rules of Practice (CROP), 40 CFR §22.31(b), that payment
is to be forwarded directly to the regional hearing clerk.
This paragraph in the CROP will be formally revised in the
near future. Because this revision is procedural only, it may
be implemented prior to the completion of formal rulemaking.
Under the new procedure, the servicing financial management
offices will contact the appropriate hearing clerk as soon as
they receive notification of a remittance, and will provide
the hearing clerk with a copy of'the check and accompanying
documents. Accordingly, questions concerning the status of a
civil penalty may be directed to either of those offices. In
addition, the headquarters Financial Reports and Analysis
Branch (FTS 382-5131) maintains a computerized record of civil
penalty receivables and collections nationwide.
More detailed procedures for penalty collections are being
developed by EPA's Office of the Comptroller. In the meantime,
any questions concerning the lockbox procedure should be directed
to your financial management office.
Attachment
cc: General Counsel
Edward B. Finch, Chief Administrative Law Judge
Assistant Administrators
Associate Administrators
Regional Administrators
C. Morgan Kinghorn, Comptroller
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' -J
3?
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OM ll I Ol 1 ShuK, ! V: S
AM) OUMI'i I\V I
MOM1URINC.
MEMORANDUM
SUBJECT: Enforcement Settlem^nt^ Negotiations
L^
FROM: Richard H.
Senior Enforcement Counsel
TO: Regional Counsels
During the past year, a number of Regions have submitted
settlements for OECM approval that had been communicated to and
tentatively agreed upon with a defendant without Headquarters
knowledge, involvement or approval. In some of these instances,
defendants were told that the Region was willing to settle for
no penalty, where a penalty was clearly in keeping with Agency
policy.
A copy of all draft settlement agreements should be
transmitted by the Regional Counsel to the appropriate Associate
Enforcement Counsel for review before it is presented to the
defendant. This policy has been set forth in two memoranda by
the Assistant Administrator for Enforcement and Compliance
Monitoring. See "Implementation of Direct Referrals for Civil
Cases Beginning December 1, 1983," and "Headquarters Review and
Tracking of Civil Referrals."
The basis for this policy is the need for the Agency to
speak with one voice which reflects a national as well as
Regional perspective. This purpose is frustrated if individual
staff members or Regional offices unilaterally establish an
Agency negotiation settlement position which may be contrary
to Agency policy or positions taken in other casess. OECM
review ensures consistency of Agency positions in all settlements,
Failure to follow that policy could also lead to potentially
embarrassing changes of position in a case, since no enforcement
settlement can be final until the Assistant Administrator for
Enforcement and Compliance Monitoring has signed it.
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-2-
A primary purpose of OECM review is to ensure that Agency
policies and guidelines are being followed. It is not our
purpose or desire to substitute our judgment for that of the
Region or to "nitpick" the Region's product when it follows
Agency policy. OECM will approve an Agency settlement position
or draft decree that falls within existing, broad policy
boundaries. In the absence of existing policy on a particular
issue, OECM will approve a position that will promote — or
not hinder — the Agency's enforcement efforts in other cases.
The vast majority of Regional recommendations conform to
Agency guidance and are approved. Nevertheless, in the recent
past a number of Regional settlement positions that had already
been communicated to and tentatively agreed upon with the
defendant have been presented to our office, placing OECM and
the Region in a potentially embarrassing position. These cases
are appearing with increasing frequency, and it is clear that
they can interfere with the effectiveness of the Agency's
enforcement effort, and create inconsistent results and
precedents.
Consequently, OECM will not assign any weight to Regional
recommendations that Headquarters should approve a settlement
position made without prior authorization because it already
had been communicated to the defendant. If such a proposed
settlement contravenes Agency policy, if it would establish
bad precedent for future cases, or if it would produce results
inconsistent with those obtained in previously-approved
settlements, it will be returned to the Region for further
negotiations.
cc: Courtney M. Price, Assistant Administrator, OECM
Deputy Regional Administrators
Associate Enforcement Counsels
Regional Water Program Division Directors
Regional Waste Program Division Directors
Regional Air Program Division Directors
Headquarters Program Compliance Office Directors
David Buente, Department of Justice
Linda Fisher, Office of the Administrator
LaJuana Wilcher, Office of the Deputy Administrator
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MAY 3 0 1985
ANDCOMPLUNCF
MOMTORISG
MEMORANDUM
SUBJECT: Revised Regional Referral Package_^Cover Letter
and. Data Sheet . ""*
FROM: Courtney M. Price
Assistant Administrator for Enforcement
and Compliance Monitoring (LE-133)
TO: Regional Administrators
Regional Counsels
Associate Enforcement Counsels
As part of our on-going efforts to improve the civil
judicial case referral process, I have requested my staff to
formulate a standard referral package cover letter and data
sheet (see attached outline). The new cover letter has been
substantially streamlined. Most of the case information will
now be contained in the data sheet. This approach is the
result of discussions held at the Regional Counsels' meeting
last January in Denver and is designed to aid my staff in
tracking referrals. This memorandum supersedes all previously
issued guidance concerning referral package cover letters.
The letter and data sheet with its 11 critical elements
have been designed to facilitate ease of preparation and
to give a very brief capsule description of the case to
the reviewer. In short, once the system is in place, anyone
who reads the letter and data sheet will get an excellent
summary of the case's major elements.
Please put this standard referral cover letter and data
sheet into effect by June 14, 1985. I suggest you implement
this approach by drawing up forms listing these 11 elements.
We have attached a suggested model data sheet. If you have
any Questions please contact Bill Quinby of the Legal
Enforcement Policy Division at FTS 475-8781.
cc: Program Office Directors
Chief, Environmental Enforcement Section,
Land and Natural Resources Division, DOJ
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CONTENTS OF REGIONAL COVER LETTER AND DATA SHEET
FOR REFERRAL PACKAGES
The cover letter itself should be signed by the Regional
Administrator and consist of one short paragraph requesting EPA
Headauarters to review the attached litigation report and
refer it to the Department of Justice, or in the case of
direct referrals requesting DOJ to file a civil action.
Attach to this cover letter a very brief description of
the following in a data sheet. Certain items may not be
appropriate in every case.
1. The statute(s) and regulation(s) which are the basis for the
proposed action, including state regulations, if applicable.
2. The name and location of the defendant(s).
3. The violation(s) upon which the action is based.
4. The proposed relief to be sought, including injunction,
and proposed amount of penalty to be sought at settle-
ment, if applicable.
5. The recent contacts with the defendant(s), including any
previous administrative enforcement actions taken, and
neaotiations , if any.
6. The significant national or precedential legal or factual
issues.
7. Date of inspection, information response, or receipt of
evidence of violation which led to decision to initiate
enforcement proceedings.
8. Date, if applicable, that the technical support documents
from the program, or support documents necessary for
preparation of a referral reach the Regional Counsel's
office.
9. Date referral is signed by Regional Administrator.
in. Any other aspect of the case which is significant or should
be highlighted including any extraordinary resource demands
which the case may require.
11. The identity of lead regional legal and technical personnel.
[PLEASE SEE ATTACHED MODEL DATA SHEET]
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-2-
Model Data Sheet - Cont.
The recent contacts with the defendant(s), including any
previous administrative enforcement actions taken, and
neaotiations, if any.
The sinnificant national or precedential legal or factual
issues.
Date of inspection, information response, or receipt of
evidence of violation which led to decision to initiate
enforcement proceedinns.
R. Date, if applicable, that the technical support documents
from the proaram, or support documents necessary for
preparation of a referral reach the Regional Counsel's
office.
9. Pate referral is signed by Pegional Adminstrator.
10. Any other aspect of the case which is significant or should
be hiahliohted including any extraordinary resource demands
which the case may reauire.
11. The identity of lead regional legal and technical personnel
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MODEL DATA SHEET
1. The statute(s) and requlation(s) which are the basis for the
proposed action, including state regulations/ if applicable.
2. The name and location of the defendant(s).
3. The violation(s) upon which the action is based,
4. The proposed relief to be sought, including injunction,
and proposed amount of penalty to be sought at settlement,
if applicable.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
JUN 2 6 1984
OFFICE OP
THE ADMINISTRATOR
MEMORANDUM
SUBJECT: Implementing the State/Federal Partnership in Enforcement:
State/Federal Enforcement "Agreements"
FROM: Alvin L. Aim Ł<&>*^ /— •
Deputy Administrator
TO: Assistant Administrators
Regional Administrators
Regional Enforcement Contacts
Steering Committee on the State/Federal Enforcement
Relationship
Associate Administrator for Regional Operations
I am pleased to transmit to you a copy of the Agency's
Policy Framework for State/Federal Enforcement "Agreements."
This document, along with the program specific guidance identified
in the Appendix to the Policy, will provide the basis for
implementing an effective State/Federal enforcement relationship
through national program guidance and Regional/State "agreements."
The Policy Framework and related program guidance reflect an
extraordinary effort for which I commend the members of the
Steering Committee on the State/Federal Enforcement Relationship
and staff of the Office of Enforcement and Compliance Monitoring.
The Policy Framework clearly identifies oversight criteria
and measures for assessing good compliance and enforcement
program performance, criteria for direct federal enforcement,
notification and consultation protocols, and state reporting
requirements. In addition, each media program has succeeded
in identifying what constitutes timely and appropriate enforcement
response. When fully developed and implemented, these State-specific
enforcement "agreements" should result in significant improvements
in the combined capacity of the States and EPA to achieve and
maintain high levels of continuing compliance and to sustain a
stable, predictable enforcement presence.
I have informed the State Associations and the members of
the Steering Committee that I personally intend to see that
each Region and program follows through in applying the guidance
provided by the Policy Framework and national program guidance
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in the form of "agreements" Regions will be formulating with
the States. The success of these efforts will depend largely
on the continued support and attention of Regional and Headquarters
senior management. We are making a substantial commitment to
strengthening the State/Federal enforcement relationship and
our investment in this partnership should continue to grow
with the development of the "agreements." Our experience over
the next fiscal year will provide us with valuable feedback
which will better enable us to refine the Policy Framework,
our national program guidance, and the "agreements" themselves.
Specifically, to ensure the success of this effort I ask:
o Assistant Administratorst
- to issue final program guidance by June 30 in conformance
with the Policy Framework;
- to report to me by July 16, 1984 on how existing
information and management systems will be used to
follow progress of cases against milestones for
timely and appropriate enforcement action; and
- to continue to provide staff support to Regions,
answering questions and providing support throughout
the process.
o Regional Administrators;
- to have "agreements" in place by the beginning of FY
1985 and submit to OECM summary indices of where the
"agreements" can be located;
- to submit copies of one sample "agreement" per Region
to OECM before the first quarter of FY 1985 so OECM
can transfer useful ideas from one Region to another;
and
- to surface significant problems to OECM for senior
management attention.
o Office of Enforcement and Compliance Monitoringi
- to monitor our progress in implementing these
•agreements," raising issues and problems as appropriate,
reporting to me on progress, and fielding questions
on the process;
- to implement the communications strategy e.g.,
distributing copies to States through State
Associations;
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- 3 -
- to review and recommend to me refinements to the
Policy Framework and "agreements" process, as necessary,
by April 15, 1985 in consultation with the Steering
Committee; and
- to provide leadership and staff support to the Steering
Committee on long-term issues that were identified by
them.
Attachments
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POLICY FRAMEWORK FOR STATE/EPA ENFORCEMENT "AGREEMENTS"
Achieving and maintaining a high level of compliance with
environmental laws and regulations is one of the most important
goals of federal and state environmental agencies, and is an
essential prerequisite to realizing the benefits of our regulatory
programs. While States and local governments have primary
responsibility for compliance and enforcement actions within
delegated or approved States, EPA retains responsibility for
ensuring fair and effective enforcement of federal requirements,
and a credible national deterrence to non-compliance. An
effective State/Federal partnership is critical to accomplishing
these goals, particularly given limited state and federal resources.
The task is difficult and one of the most sensitive in the
EPA/State relationship, often compounded by differences in
perspectives on what is needed to achieve compliance.
To establish an effective partnership in this area, and
implement the State/Federal enforcement relationship envisioned
in the Agency Oversight and Delegation policies, the Deputy
Administrator has called for State-specific enforcement
"agreements" to be in place by the beginning of FY 1985 which
will ensure there are: (1) clear oversight criteria, specified
in advance, for EPA to assess good State —or Regional— compliance
and enforcement program performance; (2) clear criteria for
direct federal enforcement in delegated States with procedures
for advance consultation and notification; and (3) adequate
State reporting to ensure effective oversight.
This document is the Agency's policy framework for imple-
menting an effective State/Federal enforcement relationship
through national program guidance and Regional/State "agreements".
It is the product of a Steering Committee effort involving all
major national EPA compliance and enforcement program directors,
State Associations, State officials from each of the media programs,
and the National Governor's Association. EPA anticipates that
the relationship, and the use of the "agreements" first established
in FY 1985, will evolve and improve over time. They will be
reviewed and updated where necessary on an annual basis. There
are several areas which the Steering Committee identified for
longer term evaluation and development. The policy framework also
will be subject to mid-course review and possible refinement
during FY 1985.
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Policy Framework Overview
The policy framework applies both to headquarters program
offices in their development of national guidance and to Regions
in tailoring program guidance to State-specific needs and
"agreements." The policy framework is divided into sis sections,
to address the following key areas:
A. State/Federal Enforcement "Agreements"t 'Fora, Scope and
Substance (pages 4-7)
This section sets forth the priorities for Regions and States
to develop enforcement "agreements," the areas that should be
discussed and the degree of flexibility that Regions have in
tailoring national guidance to state-specific circumstances.
B. Oversight Criteria and Measures: Defining Good Performance
(pages 8-14)
This section is primarily addressed to EPA's national programs,
setting forth criteria and measures for defining good
performance generally applicable to any compliance and
enforcement program whether administered by0EPA or a State.
It forms the basis for EPA oversight of State programs.
A key new area that should receive careful review is the
definition of what constitutes timely and appropriate
enforcement response, Section B, Criterion $5, pages 11-13.
C. Oversight Procedures and Protocols (pages 15-16)
This section sets forth principles for EPA's approach and
process for and follow-up to our oversight responsibilities.
D- Criteria for Direct Federal Enforcement in Delegated States
(pages 17-20)
This section sets forth the factors EPA will consider before
taking direct enforcement action in a delegated State and
what States may reasonably expect of EPA in this regard
including the types of cases and consideration of whether a
State is taking timely and appropriate enforcement action.
It also establishes principles for how EPA should take enforce-
ment action so that we can be most supportive of strengthening
State programs.
E. Advance Notification and Consultation (pages 21-23)
This section sets forth EPA's policy of "no surprises" and
what arrangements must be made with each State to ensure the
policy is effectively carried out by addressing planned
inspections, enforcement actions, press releases, dispute
resolution and assurances that publicly reported performance
data is accurate.
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F. State Reporting (pages 24-28)
This section sets forth seven key measures EPA will use, at a
minimum, to manage and oversee performance by Regions and
States. It summarizes state and regional reporting requirements
for: (1) compliance rates; (2) progress in reducing significant
non-compliance; (3) inspection activities; (4) formal adminis-
trative enforcement actions; and (5) judicial actions, at
least on a quarterly basis. It also discusses required
commitments for inspections and for addressing significant
non-compliance.
In addition, it sets forth state and regional requirements for
recordkeeping and evaluation of key milestones to assess the
timeliness of their enforcement response and penalties imposed
through those actions.
Appendix
The Appendix provides a summary index of what national
program guidance has been or will be issued by programs to
address the areas covered by the Policy Framework for State/EPA
Enforcement "Agreements."
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BSTjJI
A. STATE/FEDERAL ENFORCEMENT "AGREEMENTS": FORM, SCOPE, AND SUBST.
This section sets forth the form, scope and substance of the
State/Federal Enforcement "Agreements" as well as the degree of
flexibility Regions have in tailoring national policy to individual
States.
1. What Form Should the "Agreements" Take?
We do not anticipate the need for a new vehicle or document
for the State/Federal enforcement "agreements." Wherever possible,
State/Federal "agreements" should be set forth in one or more of
a number of existing formats: grant agreements, State/EPA Agreements
Memoranda of Agreement or Understanding or a statement of Regional
Office operating policy. To the extent the areas covered by
this policy framework translate into specific output commitments
and formal reporting requirements, they may belong in the grant
agreements as specified in national program grant guidance.
2. What is the Scope of the "Agreements"?
This guidance and the State/EPA "agreements" cover all
aspects of EPA's civil compliance and enforcement programs,
including those activities involving federal facilities. The
criminal enforcement program is not included and will be addressed
elsewhere.
Discussions between EPA Regions and States should cover the
minimum areas listed below:
o Oversight Criteria and Measures; G6od Performance Defined
—See Section B.
o Oversight Procedures and Protocols — See Section C.
o Criteria for Direct EPA Enforcement — See Section D.
o Procedures for Advance Notification and Consultation ~ See
Section E.
o Reporting Requirements ~ See Section F.
However, Regions and States are not expected to duplicate national
program guidance in their "agreements" — we are not looking for
lengthy documents. Written "agreements" resulting from these
discussions would cover topics which are not clearly specified
elsewhere. If not otherwise specified, national policy will_
apply and should be so stated in the state "agreements."
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For FY 1985, the Regions and States should reflect the
following priorities in discussions and "agreements":
- Defining expectations for timely and appropriate enforcement
action —particularly:(a) establishing a management
ŁPJ
hir
framework with the State for following progress for significant
non-complier cases against timely and appropriate milestones;
and (b) identifying where penalties or equivalent sanctions
are important;
- Reporting of State data -- ensuring timeliness and resolving
definitional and quality control problems in reported
data; and
~ Establishing Protocols for Advance Notification and
Consultation.
Oversight criteria would generally be provided in national
program guidance but Regions may need to tailor definitions
of timely and appropriate action and other specific areas of
concern that are unique to an individual State, including areas
targeted for improvement. Similarly, while this document sets
forth general criteria for direct EPA enforcement, programs
and Regions may need to tailor the criteria not only to define
timely and appropriate enforcement action, but also to address
environmental and other priorities of the program, Region or
State.
Each "agreement* should be careful to note that nothing in
them would constitute or create a valid defense to regulated
parties in violation of environmental statutes, regulations or
permits.
3. What Flexibility do Regions Have?
Regions must be allowed substantial flexibility to tailor
"agreements" to each state. However, that flexibility should be
exercised within the framework of national program policy and
the Agency's broad objectives. Specifically,
Definitions; Regions should reach agreement with States as
to how certain state enforcement actions will be reported
to and interpreted by EPA. This should be based upon
the essential characteristics and impact of state enforcement
actions and not merely upon what the actions are called.
Where penalties are required, for example, state actions
for equivalent sanctions also are acceptable. National
program guidance setting forth consistent criteria for this
purpose should be followed. Also, see the discussion in
Section B. pages 11-13. r
Timeliness: The national program guidance on key milestones
and timeframes should be applied to all States with adjustments
to accommodate each state's laws and procedures. Such adjustments
can be important particularly where the proposed enforcement
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action cannot possibly take place within the proposed timeframes
or where a State chooses to address problems more expeditiously
than the federal guidelines. Other adjustments should not
be made solely because a state program consistently takes
longer to process these actions due to constraints other
than procedural requirements, e.g., resources. However, if
this is the case the timeframes should serve as a basis for
reviewing impediments with the State to identify how problems
can be overcome and to explore ways over time for the state
program to perform more efficiently.
The timeframes are not intended to be rigid deadlines for
action, but rather are: (1) general targets to strive for
in good program performance; (2) trigger points that EPA
and States should use to review progress in individual
cases; and (3) presumptions that, if exceeded, EPA may take
direct enforcement action after consideration of all pertinent
factors and consultation with the State. It is not the
Agency's intention to assume the major enforcement role in
a delegated State as a result of these timeframes. The
trigger points should be realistic expectations, but within
modest variance from the national goals. It must also be
realized that in some programs we need experience with the
timeframes to assess how reasonable and workable they really
are and further, that judgments on what is a reasonable
timetable for action must ultimately be case specific. For
example, complex compliance problems may require longer-term
studies to define or achieve an appropriate remedy.
Appropriate Enforcement Response; National program guidance
on appropriate enforcement response should be followed.
There is usually sufficient flexibility within such guidance
to allow the exercise of discretion on how best to apply
the policies to individual cases. The Agency is making
every effort to set forth a consistent national policy on
enforcement response for each program. It is therefore
essential that in setting forth clear expectations with
States that this guidance not be altered. For example,
program guidance should not be altered simply because of
differing State views on where penalties should be assessed.
State actions imposing equivalent sanctions, however, are
acceptable e.g., license revocation. Further, with limited
exceptions noted on page 18, EPA will not override a State
action based upon penalty amounts in the absence of clear
guidance applicable to both States and Regions. See discussion
in Section D. page 18.
Procedures and Protocols; Regions and States should have
maximum flexibility to fashion arrangements that are most
conducive to a constructive relationship, following the
broad principles outlined in this document.
Adjusting outputs and commitments to State resources;
Because the FY 1985 Budget has already been developed, the
Oversight Criteria and Protocols should be implemented so
as not to impose additional resource requirements or expected
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output levels for FY 1985 beyond those already established
for States. This does not apply to the minimum reporting
requirements identified by the Steering Committee to ensure
effective oversight. In FY 1985 this policy framework is
intended to affect how we do business, not how much of it
we do. In addition, while of necessity EPA must emphasize
commitments by States to address significant non-compliance
and major sources of concern, Regions should be sensitive to
the broad concerns of State programs including minor sources
and the need to be responsive to citizen complaints.
4. What Does it Mean to Reach "Agreement*?
To the extent possible, these "agreements" should reflect
mutual understandings and expectations for the conduct of federal
and state enforcement programs. Agreement may not be possible
in all States. At a minimum, EPA Regions must: (1) be clear
and ensure there are "no surprises"; (2) make arrangements with
the States so that actions taken are constructive and supportive;
and (3) tailor the application of the national program guidance
to the States' programs and authorities. Where mutual agreement
cannot be achieved, clear unilateral statements of policy will
have to suffice, with commitments to try to seek further agreements
over time. Areas where agreements have not been reached should
be clearly identified for senior Agency management attention.
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8
B. OVERSIGHT CRITERIA AND MEASURES: DEFINING GOOD PERFORMANCE
The first step to achieving strong and effective national
compliance and enforcement programs is a clear definition of
what constitutes good performance. Because each of EPA's programs
embodies unique requirements and approaches, good performance
must be defined on a program-specific basis. Adjustments also
must be made in applying criteria and measures to the States
and Regions, based upon their environmental problems and
authorities. Nevertheless-, there are several basic elements
which will generally be applicable to a good compliance and
enforcement program in any of our media-specific programs.
The following outlines the criteria and measures that form
that common framework for defining a quality program. The
framework is to serve as a guide to the national programs as
they develop, in cooperation with Regions and States, the
criteria they will use to assess their performance in implementing
national compliance and enforcement programs.
The framework is not intended to be adopted word-for-word
by the programs, nor is there any format implied by this list.
What is important are the concepts. This section addresses
only the elements of a quality program. Issues such as how
oversight should be conducted are addressed in section C. Each
national program may choose to focus on certain elements of
performance in a given "year.
These criteria and measures are intended to apply to
the implementing agency, that is, to an approved or delegated
State or to an EPA Region in the event a program is not
"delegated." Our philosophy is that EPA should be held to
the same standards as we would apply to the States if they
were implementing the program. Portions may also apply to
those non-approved or non-delegated States which are
administering portions of the programs under cooperative
agreements.
CRITERION »1 Clear Identification of and Priorities for
the Regulated Community
A quality compliance and enforcement program is based
upon an inventory of regulated sources which is complete,
accurate and current. The data should in turn be accessible,
preferrably in automated data systems which are accurate, and
up-to-date. The scope of coverage for the inventory should
be appropriately defined by each program as it is probably
not feasible to identify every person or facility subject to
environmental laws and regulations, especially when they are
numerous small sources. Those priorities should be clearly
established in national program guidance and tailored to
State-specific circumstances as appropriate.
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The inventory of sources should be utilized as a basis for
a priority setting system established by the administering agency,
These priorities should reflect and balance both national
priorities and state-specific priorities. A quality program
uses those priorities as a basis for program management.
National priorities are generally set forth in EPA's Operating
Year Guidance and program specific compliance and enforcement
strategies. State-specific priorities should address not
only efforts to achieve broad based compliance but also should
assess the expected environmental impact of targeting enforcement
and compliance monitoring to specific geographic areas or
against certain source types. Ambient monitoring systems
can provide an important point of departure for priority
setting.
CRITERION 12 Clear and Enforceable Requirements
Requirements established through permits, administrative
orders and consent decrees should clearly define what a
specific source must do by a date certain* in enforceable
terms. It is not EPA's intention in this policy framework to
suggest that EPA conduct a top down review of a State or
Regional program's entire regulatory program. However,
areas where provisions cannot be enforced due to lack of
clarity or enforceable conditions should be identified and
corrected.
CRITERION 13 Accurate and Reliable Compliance Monitoring
There are four objectives of compliance monitoring:
reviewing source compliance status to identify
potential violations;
- helping to establish an enforcement presence;
collecting evidence necessary to support enforcement
actions regarding identified violations; and
- 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.
The two factors in assessing the success of a compliance
monitoring program are coverage and quality.
Coverage; Each program's strategy should reflect a balance
between coverage: (1) for breadth/ to substantiate the reli-
ability of compliance statistics and establish an enforcement
presence; and (2) for targeting those sources most likely to
be out of compliance or those violations presenting the most
serious environmental or public health risk.
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10
Inspections; Each administering agency should have a
written and reviewable inspection strategy, reviewed and
updated annually, as appropriate: in some programs a
multi-year strategy may be preferable. The strategy
should demonstrate the minimum coverage for reliable
data gathering and compliance assessment set forth in
national program guidance and meet legal requirements
for a "neutral inspection scheme". The strategy should
also address how the inspections will most effectively
reach priority concerns and potential non-compilers including
the use of self reported data, citizen complaints and
historic compliance patterns. The strategy will be
assessed on whether it embodies the appropriate nix of
categories of inspections, frequency and level of detail.
Inspections should then be carried out in a manner
consistent with the inspection strategy.
Source Self-Monitoring and Reporting; The administering
agency should ensure that minimum national requirements
for source self-monitoring and reporting are imposed
and complied with, either through regulation or permit
condition, pursuant to national guidance as appropriate.
Quality: Each program should define minimum standards for
quality assurance of data and data systems, and timely and
complete documentation of results. At a minimum, each program
should have a quality assurance program to insure the integrity
of the compliance monitoring program. This quality assurance
program should address essential lab analysis and chain of
custody issues as appropriate.
Inspections; Inspectors should be able to accurately
determine the nature and extent of violations, particularly
the presence of significant violations. Documentation
of inspection findings should be timely, complete and
able to support subsequent enforcement responses, as
appropriate to the purpose of the inspection. Federal
oversight inspections should corroborate findings.
Oversight inspections are a principal means of evaluating
both the quality of an inspection program and inspector
training.
Source Self Monitoring: The administering agency should
have a strategy for and implement quality assurance
procedures, with sufficient audits and follow-up action
to ensure the integrity of self-reported data.
CRITERION 14 High or Improving Rates of Continuing Compliance
The long-term goal of all of our compliance and enforcement
programs is to achieve high rates of continuing compliance
across the broad spectrum of the regulated community. Until
that goal is achieved, compliance rates can fluctuate for
several reasons. In assessing how well an administering
agency is meeting the goal of high or improving rates of
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11
compliance, other factors must be assessed in addition to
the overall compliance rate. Improved inspections or inspection
targeting often can result in a temporary decrease in rates
of compliance until newly found violations are corrected and
the regulated community responds to the more vigorous attention
to specific compliance problems. In these instances, a
decrease in the rate of compliance would be a sign of a
healthy compliance and enforcement program. At a minimum,
programs should design mechanisms to track the progress of
all sources out of compliance through major milestones up to
achieving final physical (full) compliance with applicable
regulations and standards.
Program quality must also be assessed in terms of how well
the program is returning significant non-compliers to compliance.
The use of lists of significant violators and specific commitments
to track and resolve significant non-compliance should be
part of the planning process of the administering agency,
and, between States and Regions. The lists should be developed
and continually updated each fiscal year and sources on it
tracked through to final physical compliance.
CRITERION 15 Timely and Appropriate Enforcement Response
Quality enforcement programs ensure that there is timely
and appropriate enforcement response to violations. Expectations
for what constitutes timely and appropriate action should be
based upon national program guidance, tailored to the procedures
and authorities in a given State and assessed in regard to
particular circumstances surrounding each instance of violation.
National programs must establish benchmarks or milestones
for what constitutes timely and appropriate enforcement
action, forcing progress in enforcement cases toward ultimate
resolution and full physical compliance. This concept is a
key new feature to our compliance and enforcement program
implementation.
In designing oversight criteria for timely enforcement
response, each program will attempt to capture the following
concepts:
1. A set number of days from "detection* of a violation
to an initial response. Each program should clearly
define when the clock starts, that is, how and when
a violation is "detected."
2. Over a specified period of time, a full range of enforce-
ment tools may be used to try to achieve compliance,
including notices of violation, warning letters, phone
calls, site visits, etc.. The adequacy of these responses
will be assessed based upon whether they result in
expeditious compliance.
3. A prescribed number of days from initial action within
which a determination should generally be made, that
either compliance has been achieved or an administrative
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12
enforcement action has been taken (or a judicial
referral has been initiated, as appropriate) that,
at a minimum:
0 Explicitly requires recipient to take some corrective/
remedial action, or refrain from certain behavior,
to achieve or maintain compliance;
' Explicitly is based on the issuing Agency's deter-
mination that a violation Has occurred;
0 Requires specific corrective action, or specifies
a desired result that may be accomplished however
the recipient chooses, and specifies a timetable
for completion;
0 May impose requirements in addition to ones relating
directly to correction (e.g., specific monitoring,
planning or reporting requirements); and
0 Contains requirements that are independently enforce-
able without having to prove original violation and
subjects the person to adverse legal consequences
for non-compliance.
4. A specific point at which a determination is made
either that final physical compliance has been
achieved, that the source is in compliance with a
milestone in a prior order, or that escalation to a
judicial enforcement action has been taken if such
actions have not already been initiated.
In developing program-specific guidance, this
milestone may be treated more as a concept than as
a fixed timetable. This is because often times
the process is out of the control of the administering
agency, e.g., the administrative hearing process
or the State Attorney General's action. What is
important, is the embodiment of the concept of
timely follow-up and escalation, in requirements
for tracking and management.
5. Final physical compliance date is firmly established
and required of the facility. Although it is not
possible for programs to establish any national
timeframes, the concept of final physical compliance
by a date certain should be embodied in EPA and
State enforcement actions.
6. Expeditious physical compliance is required. It may
not be possible for programs to define •expeditious"
in terms of set time periods, but some concept of
•expeditious* (i.e., that the schedule will result
in a return to full physical compliance as quickly
as can reasonably be expected) should be embodied
in each program's guidance.
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13
Timeframes established by the national programs for each
of these minimum milestones are principally intended to
serve as trigger points and not as absolute deadlines, unless
specifically defined as such. Whatever tiroeframes are established
are intended to apply only to federal requirements as adopted
by the States, and do not apply to state statutes and require-
ments that go beyond those required by federal law. The
tiroeframes are key milestones to be used to manage the program,
to trigger review of progress in specific cases, and a presumption
of where EPA may take direct enforcement action after consideration
of all pertinent factors and consultation with the State.
Timeframes and their use in management will evolve over
time as they will have to reflect different types of problems
that may warrant different treatment. For example, programs
will have to take into account such factors as new types of
violations, the difference between operating and maintenance
violations versus those that require installation of control
equipment, emergency situations which may fall outside the
scope of the normal timeframes for action, etc.
Administering agencies are expected to address the full
range of violations in their enforcement responses considering
the specific factors of the case and the need to maintain a
credible enforcement presence. However, the new management
approach setting forth desired timefraroes for timely action
could have resource implications beyond what is currently
available to or appropriate for the full range of sources
and violations. Therefore, as we begin to employ the concept
of timely and appropriate enforcement response, at a minimum,
the focus should be on the greatest problems, i.e., the
significant non-corapliers. Over time, and with more experience,
this concept should be phased-in to cover a broader range of
violations. This in no way should constrain the programs
from applying the concepts broadly.
The choice of appropriate response is to be defined
by each national program and applied by the administering
agency based upon consideration of what is needed: (1) in
general, to achieve expeditious correction of the violation,
deterrence to future non-compliance and fairness; and (2)
in individual circumstances, based upon the gravity of the
violation, the circumstances surrounding the violation, the
source's prior record of compliance and the economic benefits
accrued from non-compliance. With three exceptions, the
form of the enforcement response is not important by itself,
as long as it achieves the desired compliance result. The
exceptions generally fall into the following three categories:
1. If compliance has not been achieved within a certain
timeframe, the enforcement response should meet
minimum requirements, usually associated with at
least the issuance of an administrative order (»ee
criteria listed above) or judicial referral.
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14
2. Because of the need to create a strong deterrence
to non-compliance, it is important to assess penalties
in certain cases, and only certain enforcement vehicles
can provide penalties. Each program must clearly
define, as appropriate, the circumstances under which
nothing less than a penalty or equivalent sanction
will be acceptable.
3. In some circumstances, a judicial action or sanction
is usually the only acceptable enforcement tool. Each
program must define these circumstances as appropriate.
For example, a judicial action night be required
where a compliance schedule for federal requirements
goes beyond federal statutory deadlines.
A good program should have adequate legal authority to
achieve the above objectives. Where deficiencies have been
identified, steps should be taken to fill identified gaps.
CRITERION 16 Accurate Recordkeeping and Reporting
A quality program maintains accurate and up-to-date
files and records on source performance and enforcement
responses that are reviewable and accessible. All record-
keeping and reporting should meet the requirements of
the quality assurance management policy and procedures
established by each national program consistent with the Agency's
Monitoring Policy and Quality Assurance Management System.
Reports from States to Regions, Regions to Headquarters must
be timely, complete and accurate to support effective program
evaluation and priority setting.
CRITERION 17 Sound Overall Program Management
A quality program should have an adequate level, nix
and utilization of resources, qualified and trained staff,
and adequate equipment. The intention here is not to
focus on resource and training issues unless there is poor
performance identified elsewhere in the program. In those
instances, these measures can provide a basis for corrective
action by the administering agency. There nay be, however,
some circumstances in which base level of trained staff and
equipment can be defined by a national program where it
will be utilized as an indicator of whether the program is
adequate.
Similarly, a good compliance and enforcement program
should have a clear scheme for how the operations of other
related organizations, agencies and levels of government fit
into the program. Again, this is a natter which would be
given attention to the extent problems have been identified.
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15
C. OVERSIGHT PROCEDURES AND PROTOCOLS
This section addresses how EPA should conduct its oversight
function, its approach, process and follow-up, to build and improve
individual programs and overall national performance.
1. Approach
The goal of oversight should be to improve the state (or Regional)
compliance and enforcement program. To accomplish this, oversight should
be tailored to fit State performance and capability. The context must
be the whole state compliance and enforcement program, although EPA's
focus for audit purposes will be on national priority areas.
No new oversight process is intended here. Existing procedures
such as mid-year reviews, periodic audits and oversight inspections as
established by each program and Region should be used. However, EPA
oversight of state performance should be consistent with the following
principles:
a. Positive oversight findings should be stressed as well as the
negative ones.
b. Positive steps that can. be taken to build the capability of state
programs in problem areas should be emphasized. This should include
providing technical assistance and training ~ by EPA staff to the
extent possible.
c. EPA action to correct problems should vary, depending on the
environmental or public health effect of the problem and whether it
reflects a single incident or a general problem with the state
program.
d. Feedback between the States and EPA should be a two-way street.
The States should be given an opportunity to comment on EPA's
performance.
e. EPA should give States sufficient opportunity to correct identified
problems, and take corrective action pursuant to the criteria for
direct enforcement established in Section D.
f. EPA should use the oversight process as a means of transferring
successful regional and state approaches from one Region or State
to the other.
2. Process
Several actions can result in the most constructive review of the
State's programs:
a. To the extent possible, files to be audited will be identified
in advance, with some provision for random review of a percentage
of other files if necessary.
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16
b. Experienced personnel should be used to conduct the audit/review
— EPA staff should be used to the extent possible to build
relationships and expertise.
c. There should be an exit interview and every opportunity should be J
made to discuss findings, comment on and identify corrective steps
based upon a review draft of the written report.
d. Opportunity should be made for staffs interacting on enforcement
cases and overseeing State performance to meet personally rather
than rely solely upon formal communications — this applies to both
technical and legal staffs.
3. Follow-Up and Consequences of Oversight
When State performance meets or exceeds the criteria and measures
for defining good program performance, EPA should, reward this perfor-
mance in some of the following ways:
a. reduce the number, level or scope, and/or frequency of reviews or
of some reporting requirements consistent with statutory or regu-
latory requirements;
b. reduce the frequency and number of oversight inspections; and
c. allow the program more flexibility in applying resources from an
almost exclusive focus on national priorities e.g., major sources,
to addressing more priorities of concern to the State e.g., minor
sources.
When State performance fails to meet the criteria for good state
performance, EPA may take some of the following actions, as appropriate:
a. suggest changes in State procedures;
b. suggest changes in the state's use of resources or training of
staff;
c. provide technical assistance;
d. increase the number of oversight inspections and/or require submittal
of information on remedial activities;
e. provide other workable state models and practices to States with
problems in specific areas and match state staff with expertise in
needed area;
f. if state enforcement action has not been timely and appropriate,
EPA may take direct enforcement action;
g. grant awards could be conditioned by targeting additional resources
to correct identified problems or reduced based on poor performance
where such performance is not due to inadequate resources; and/or
h. consider de-delegation if there is continued poor performance.
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17
CRITERIA FOR DIRECT FEDERAL ENFORCEMENT IN DELEGATED STATES
This section addresses criteria defining circumstances under
which approved State programs might expect direct federal enforce-
ment action and how EPA will carry out such actions so as to be
most supportive of strengthening State programs.
1. When Might EPA Take Direct Enforcement Action?
A clear definition of roles and responsibilities is essential
to an effective partnership. In delegated programs, primary
responsibility for action resides with State or local governments
with EPA taking action principally where a State is "unwilling
or unable" to take "timely and appropriate" enforcement action.
Many States view it as a failure of their program if EPA takes
an enforcement action. This is not the approach or view adopted
here. There are circumstances in which EPA may want to support
the broad national interest in creating an effective deterrent
to non-compliance beyond what a State may need to do to achieve
compliance in an individual case or to support its own program.
Because States have primary responsibility and EPA clearly
does not have the resources to take action on or to review in
etail any and all violations, EPA will circumscribe its actions
the areas listed below and address other issues concerning
tate enforcement action in the context of its broader oversight
responsibilities. Following are factors which EPA will consider
in deciding whether to take direct action:
Type of Case
a. Violation of EPA order or consent decree
b. State requests EPA action
c. Cases specifically designated as nationally significant
(e.g., significant non-compliers, explicit national or
regional priorities)
d. Legal precedents
e. Interstate issues
f. Significant environmental or public health damage or
risk involved
c,. Significant economic benefit gained by violator
h. Repeat violators
i. Areas where State authority may be inadequate
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18
Based on this general guidance, each program office may develop
more specific guidance on the types of violations on which EPA
should focus.
Timely and Appropriate Action by the State
The fact that a case may fit into one of the categories
listed above does not mandate nor imply that EPA will take
enforcement action. Several factors must be taken into account
including the judgment of EPA staff, the availability of EPA
resources, and a determination of whether the State has taken or
can take timely and appropriate enforcement action as defined by
national program guidance and State/Regional "agreements." These
considerations are determining factors for cases falling within
the following criteria: (c) national priorities; (e) interstate
issues; (f) significant environmental damage or health effects;
or (g) significant economic benefit. In the case of (h) repeat
violators, Regions must assess whether the State response is
likely to prove effective given the pattern of repeat violations
and prior history of responses.
For types of violations based upon criteria: (a) violations
of EPA order or consent decrees, or (d) legal precedent, EPA
action need not be tied to whether a State has or is taking
"timely and appropriate action." These are limited exceptions to
the State-lead concept. In these circumstances, EPA should work
with the State as early as possible in the case, well before
completion of a State action which, if resulting in expeditious
compliance by the facility, would render any subsequent EPA
involvement unconstructive, ineffective or moot.
Regions also should identify, with their States, particular
areas in which arrangements can or should be made, in advance,
for direct EPA enforcement support where State authorities are
inadequate — (i) above — or compliance has been a continuing
problem.
Adequacy of Penalty
For types of violations identified in national program
guidance as requiring a penalty or equivalent sanction, EPA generally
will not consider taking direct enforcement action on the basis
of the adequacy of the amount of penalty imposed unless clear
national guidance has been defined, in consultation with States,
and is being applied in practice in EPA Regions. EPA may, however,
take direct enforcement action for recovery of additional penalties
in instances in which a State penalty is determined to be grossly
deficient e.g., de minimis, after considering all of the circumstances
of the case and the national interest. In making this determination,
EPA will give every consideration to the State's own penalty
authority and any applicable State penalty policy.
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19
In FY 1985, except for the limitation noted above, the
Agency will focus on whether the State has imposed a penalty in
appropriate cases and not on the amount of the penalty for the
purposes of considering direct action unless guidance on penalty
amounts applicable to States is in place. Where it is needed,
each program will be developing more explicit guidance to both
EPA Regions and States on penalty amounts to be applicable in FY
1986. State and Regional penalty assessments will, however,
continue to be an area of review as EPA conducts audits and
oversight of State programs.
2. How Should EPA Take Action So As To Better Support Strong
State Programs?
Section E describes in some detail the principles and
procedures for advance notification and consultation with States.
These are imperatives for a sound working relationship. There
are several other approaches identified here for how EPA can take
enforcement action, where it is appropriate, in a manner which
can better support States.
To the maximum extent possible, EPA should make arrangements
with States to:
a. Take joint State/Federal action — particularly where a
State is responsibly moving to correct a violation but
lacks the necessary authorities, resources or national
or interstate perspective appropriate to the case;
b. Use State inspection or other data and witnesses, as
appropriate;
c. Arrange for penalties (in part or in whole) to accrue
to States —to the extent it is legally possible to do
so e.g., through joint action;
d. Involve States in creative settlements — BO that the
credibility of States as the primary actor is perceived
and realized;
e. Issue joint press releases and share credit with the
State -- to ensure EPA is not in competition with the
State and that EPA action is not erroneously perceived
as a weakness or failure in the State's program; and
f. Keep States continually apprised of events and reasons
for federal actions —to avoid conflicting actions
and to build a common understanding of goals and
the State and federal perspectives.
^
3. How Do the Expectations cor "Timely and Appropriate Action*
Apply to EPA in Delegated States?
In delegated States, EPA performs an oversight function,
standing ready to take direct federal enforcement action based
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20
upon the factors stated above. In its oversight capacity, in
most cases EPA will not obtain real-time data. As indicated in
Section F on State Reporting, EPA will receive quarterly reports
and will supplement these with more frequent informal communi-
cations on the status of key cases. Therefore, we do not expect
EPA Regions through their oversight to be able to take direct
enforcement action following the exact same timeframes as those
that apply to the administering agency. However, when EPA does
determine it is appropriate to take direct federal action, EPA
staff are expected to adhere to the same timeframes as applicable
to the States starting with the assumption of responsibility for
enforcement action.
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21
E. ADVANCE NOTIFICATION AND CONSULTATION
A policy of "no surprises" must be the centerpiece of any
effort to ensure the productive use of limited federal and
state resources and an effective "partnership" in achieving
compliance. This principle should be applied to all aspects of
the compliance and enforcement program covering inspections,
enforcement activities, press releases and public information,
and management data summaries upon which State and national
performance are assessed.JJL
In order to guarantee that there is ample advance notification
and consultation between the proper state and federal officials,
EPA Regions should confer annually with each State, discuss the
following areas and devise agreements as appropriate. The
agreements should be unique to each State and need not cover
all areas — so long as there is a clear understanding and
discussion of how each area will be addressed.
^
1. Advance Notification to Affected States of Intended
Inspections and Enforcement Actions
Agreements should identify:
- who should be notified, e.g.
— the head of the program if it involves potential
federal enforcement; and
— who is notified of proposed/planned federal
inspections.
- how the State will be notified, e.g.
— the agencies share inspection lists; and
— the agency contact receives a telephone call on a
proposed federal enforcement case.
- when they will be notified — at what point(s) in
the process, e.g.
— when a case is being considered; and/or
— when a case is ready to be referred, or notice
order issued.
In cases where other States or jurisdictions may be directly
and materially affected by the violation, i.e., environmental
or public health impacts, EPA's Regional Offices should attempt
to notify all of the States that are interested parties or are
affected by the enforcement action through the communication
channels established by the State "agreements," working through
the appropriate Regional Office. This notification process is
particularly important for hazardous waste cases in which
regulatees often operate across State boundaries.
J_l Note that the Policy Framework does not apply to the criminal
enforcement program.
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22
Protocols for advance notification must be established
with the understanding that each party will respect the other's
need for confidentiality and discretion in regard to the information
being shared, where it is appropriate. Continuing problems in
this regard will be cause for exceptions to the basic principle
of advance notification.
Many of our statutes or regulations already specify pro-
cedures for advance notification of the State. The State/Federal
"agreements" are intended to supplement these minimum requirements.
2. Establishment of a Consultative Process
Advance notification is only an essential first step and
should not be construed as the desired end result of these
State/Federal "agreements." The processes established should
be consultative and should be designed to achieve the following:
a. Inspections
Advance notice to States through sharing of lists of
planned federal inspections should be designed so
that state and federal agencies can properly coordinate
the scheduling of site inspections and facilitate
joint or multi-media inspections as appropriate.
This should generally be done for all programs whether
or not they are delegated, except for investigative
inspections which would be jeopardized by this process.
b. Enforcement Actions
Federal and state officials must be able to keep one
another current on the status of enforcement actions
against non-complying facilities. Regularly scheduled
meetings or conference calls at which active and
proposed cases and inspections are discussed may
achieve these purposes. At any point in the process,
federal officials may defer to an appropriate state
response.
3. Sharing Inspection Results
The Region and State should discuss the need for a process
to share, as much as practicable, inspection results, monitoring
reports, evidence, including testimony, where applicable for
federal and/or state enforcement proceedings.
4. Dispute Resolution
The Region and State should agree in advance on ajprocess
for resolving disputes, especially differences in interpretation
of regulations or program goals as they may affect resolution of
individual instances of non-compliance.
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23
5. Press Releases and Public Information
EPA has made commitments to account publicly for its
compliance and enforcement programs. EPA also has made use of
press releases as a means of enhancing the deterrence potential
of its enforcement actions. While state philosophies on these
matters may vary, the Region and State should discuss opportuni-
ties for joint press releases on enforcement actions and public
accounting of both state and federal accomplishments in compliance
and enforcement.
Discussions should address how and when this coordination
would take place. To the extent possible, EPA generated press
releases and public information reports should acknowledge and
give credit to relevant state actions and accomplishments.
6. Publicly Reported Performance Data
Regions should discuss with States mechanisms for ensuring
the accuracy of data used to generate monthly, quarterly and/or
annual reports on the status of state and federal compliance
and enforcement activities. Opportunities should be provided
to verify the accuracy of the data with the States prior to
transmittal to headquarters. Time constraints nay be a real
limitation on what can be accomplished, but it is important to
establish appropriate checks and control points if we are to
provide an accurate reflection of our mutual accomplishments.
If there are no data accuracy concerns these mechanisms may
not be needed.
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24
P. STATE REPORTING
This section reviews key reporting and recordkeeping
requirements for management data and public reporting on
compliance and enforcement program accomplishments. It also
addresses related reporting considerations such as reporting
frequency and quality assurance.
1. Overview
A strong and well managed national compliance and enforce-
ment program needs reliable performance information on which
to judge success and identify areas needing management attention.
The following outlines the reporting and recordkeeping framework
for monitoring enforcement and compliance program performance
that will form the basis of EPA's FY 1985 Strategic Planning
and Management System component on enforcement. The information
will be used by the Agency's chief executives to manage EPA
operations, and to convey our combined federal and state
performance record to others outside the Agency. This framework
is limited in its application to information gathered for
management purposes. It is not intended to apply to the
environmental data and reporting on a source-by-source basis
which is gathered routinely by the Agency from Regions and
States under its source reporting programs and ongoing operations,
The framework should serve as a stable guide to the national
programs as they develop, in cooperation with the Regions
and States, the measures and reporting requirements they
will use to assess performance in implementing national
compliance and enforcement programs.
In FY 1985 we will use five measures of compliance and
enforcement performance for reporting purposes, identified in
sequence below. The first two measure compliance results:
(1) overall compliance rate for the regulated community; and
(2) correction of the most significant violations. The
Agency is working diligently to establish clear and reliable
indicators for these two measures, recognizing the desirability
of managing based as much as possible on results. While it
is most desirable to find ways to ultimately examine the
environmental benefits of compliance and enforcement actions,
i.e., pollution levels reduced, this will not be accomplished
in time for the FY 1985 planning and management cycle.
The two compliance results measures are supplemented
with three measures of enforcement activity: (3) inspection
levels as an indicator of the reliability of compliance data
and as an indicator of field presence for deterrence purposes;
(4) formal administrative enforcement actions undertaken; and
(5) judicial referrals and filed court cases, the latter two
measures of enforcement activities both serving as indicators
of enforcement strength and the will to enforce.
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25
In addition to these five reporting requirements, the
Agency is introducing two new areas of recordkeeping require-
ments to support general management oversight of the national
enforcement effort: (1) success in meeting new management
milestones for defining timely and appropriate enforcement
action; and (2) the level of penalties assessed and collected.
For FY 1985 records should be maintained by States and Regions
for review during the course of the year and to support an
assessment at the end of the year on.how well the agencies
have done and how appropriate performance expectations might
best be defined.
2. Reported Measures of Performance
Programs and Regions should ensure the first five measures
of performance are required to be reported on a quarterly
basis:
a. Compliance levels can be measured according to several
different approaches. National program guidance shojuld
describe the approach each has selected as most appropriate
given the characteristics of its program and regulated
community. Each program should, at a minimum, report
full physical compliance rates and also distinguish
where relevant in reporting compliance levels between
final "physical* compliance (compliance with emissions
limits) and "paper" compliance (violation of emissions
limits but following a compliance schedule).
b. Progress in Returning Significant Violations.to Compliance;
Each program In putting together Its guidance should
specifically define what it measures as significant
violations. Lists of significant violators must be
compiled by Region and State. The Agency has two indicators
of performance in this area: one is a static measure
of progress against a beginning-of-year backlog of
significant violators not yet brought into compliance.
The second is a dynamic balance sheet which adds to the
beginning-of-year inventory any new significant violators
as they are found and keeps a running tally of those for
which a formal enforcement action was taken, those
which were brought into compliance, or those which
remain, pending enforcement action. Each program should
provide for reporting against both measures.
Each program should also anticipate being required to set
quarterly targets for reduction of its beginning-of-year
backlog of significant violators. Targets will be set
for States and Regions on the basis of either returning
the violator to compliance or taking a formal enforcement
action which will lead to expeditious physical (full)
compliance. Reporting of progress against significant
violations will be set on the basis of these same two
categories of response. In developing its guidance, each
program should specify the types of enforcement actions
which qualify as having taken "a formal enforcement action."
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26
c. Inspections are conducted for many purposes, including
confirmation of compliance levels. Reporting on
inspections has been a long standing practice.
Regions and States should be asked to provide specific
quarterly commitments and reporting on the number of
inspections to be conducted. Where programs have
broken down inspection reporting into different
classes to reflect the different purposes, for example,
sampling inspections, "walk-through," or records
check inspections, this reporting is expected to
continue. Each program, as it draws up its guidance,
should be as clear and specific as possible in defining
the different categories of inspection activity to
be reported.
d. Formal administrative enforcement actions will be
reported as the critical indicator of the level of
administrative enforcement activity being carried on
by environmental enforcement agencies. It is not
our intention to provide a comprehensive reporting
of all actions, both informal and formal, being
taken to secure compliance. At the same time, it is
recognized that there are many different informal
techniques used which succeed in getting sources to
return to compliance. What is sought here is a
telling indicator which will keep reporting as clear
cut and unburdensome as possible.
In preparing its guidance each program should list
the specific actions to be included under this reporting
area. Each program should be guided by the characteristics
of a formal administrative action set forth in Section
B on "Timely and Appropriate Enforcement Action."
For programs without formal administrative authority,
such as Drinking Water, other surrogate measures
should be defined.
e. Judicial Actions is an area where there has been a
long standing practice of federal reporting with no
corresponding State data. Commensurate with current
reporting practices within EPA, the number of State
civil referrals and filed cases will now be reported.
We will also now include criminal judicial actions.
These should be reported as a separate class and be
counted only after they are filed in court in recognition
of their sensitive nature.
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27
3. Recordkeeping for Performance Measurement
There are two performance areas for which States and
Regions will be asked to retain accessible records and
summary data: (1) timeliness and appropriateness of response
to violations; and (2) penalties. These categories of
information will be considered for future development as
measures for possible inclusion in the Agency's management
and reporting systems.
a. Timeliness and appropriateness of state and federal
response to violations is the principal subject of
new guidance being developed by each program. Each
program will report to the Steering Committee on
how it will evaluate performance in this area during
this developmental year including a listing of the
information and its source(s) it will rely on to
assess timeliness and appropriateness of actions on
an ongoing basis. At the end of a year's experience
with implementing these oversight agreements, and
in preparing for the FY 1986 operating year, each
program will conduct a review to determine whether
there are measures which might be useful for management
purposes. At that time, each program should consider
developing a measure for routine reporting, if
appropriate.
b. Penalty programs, are essential to the effective working
of an environmental enforcement program. Records
need to be kept of the number and amount of penalties
issued by state and federal program offices regularly
assessing penalties both those assessed and collected.
These records and summary data should be available
for review at the time of annual program audits
and, in the event of information requests by external
groups, on the extent of penalties assessed at any
point in time. Each program office in preparing
its guidance should specifically address the need
for recordkeeping on penalties.
f
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28
4. Reporting Considerations
There are two areas for special consideration by the
programs as they put together their guidance on reporting
requirements:
a. Quality Assurance and quality control of reported
data is essential as these are the critical indicators
of program performance which will be used in
making program management decisions of priority,
resource levels, and direction. This information
must be as reliable as possible. Quality assurance
and quality control of data encompases three types
of activities including: (1) setting up initial reporting
procedures; (2) building in information review and
confirmation loops; and (3) conducting routine
audits and reviews of reports and reporting systems.
Each program in preparing its guidance should describe
the safeguards it uses in its reporting, review and
confirmation procedures, and describe the audit
protocols it will use to ensure the, reliability of
enforcement and compliance data.
b. The frequency of reporting in order to be most useful
for management purposes, at a minimum, should be done
on a quarterly basis — for some programs monthly
reporting may be necessary on an interim basis due
either to their newness or their importance. This
reporting frequency is designed for oversight purposes.
It is not designed to provide for "real time" infor-
mation, that is, instant access to information on
the status of a case. However, it is anticipated
that formal reporting will be supplemented with
more frequent informal communications between the
Regions and States on the progress of key cases of
concern.
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A SUMMARY INDEX OF NATIONAL PROGRAM GUIDANCE APPD^^ g TO STATE/FEDERAL ENFORCEMENT "AGREEMENTS"
A. State/Federal Enforcement •Agreements" i Fora, Scope and Subetance
Introduction! Regions and States are not expected to duplicate national program guidance.Written ""
"agreements* resulting from discussions between Regions and States should cover topics not clearly
specified elsewhere. If not otherwise specified, the Agency-wide Policy Framework will apply. This
Framework should be used for establishing the tenor in working with the States and for filling in
identified gaps in the national program guidance. The form of the agreement is up to the Regions unless
specified by national program guidance. The Regions should decide 1C there will be a Region-wide
•agreement* or whether each Division will separately develop the "Agreements", and what torn they will
take.
MATER - NPDES
DW-PWS
AIR
RCRA
FIPRA
Primary
bocumentst
FORM!
1. oversight Criteria
and Measures
2. Oversight Procedures
and protocol*
3. Criteria for Direct
•PA Enforcement
4. Procedures for
Advance Notification
and Consultation
5. Reporting Require-
ments
New Guidance
Regions have totaJ
items identified 1
New Guidance
I flexibility to c
>elow are requirec
X
New Guidance
letermine the foi
) to be included
RCRA Implementation
Plan
•m ot the ^Agreement*
in the grant negotii
X
a
• •' . x
Grant Guidance
t" , except the
itionsi
X
X
X
X
X
-------
B. Oversight Criteria and Heasuraaj Defining Good Performance
Introduction! Regions should make cure that States have copies of program oversight criteria ana
measures and that the State* end Ragione agree upon the "timely and appropriate" definitions and
expectations. In particular, States should be made familiar with the new Milestones for timely
enforcement action and the situations where penalties are important. Regions should address
specific areas of concern that are unique to the States, including areas targeted for improvement.
NKllUt IftUO
DH-IWS
AIR
RCRA
PIFHA
Primary
Documents!
tieneral Oversight
Criteria!
1. Clear Identi-
fication of th*
regulated
• ccaiuilty
2. Clear and
enforceable
requirements
3. Accurate and
reliable
compliance
monitoring
4. High 6 improving
rates of
continuing
ULB^>! lance
5. Timely and
appropriate
enforcement
iva^iOnoe
^. Accurate
reoordKeeping
and reporting
7. Overall Program
1. Nw Guidance
1
1
1
1
1
1
1
1. Grant Guidance
2. Rega
3. Reporting
System
4; New Guidance
1 64
2 ft 4
2*4
3 t 4
4
1 §4
1§4
1. National Air
Audit System
2. New Guidance
1
1
1 .
1
2
1
1
1. National Criteria
for Program
Quality
2. RCRA Iiftplenent-
atlon Plan
3. RCRA Enforcement
Response Guidance
1
1
1
1*2
•2t3
2
1
1. Grant Guidance
2. Primacy Regs
N/A
N/X
1
1
2
1
1
-------
In
oo
-ftioru Regions have maximal flexibility to fashion arrangemerV
AC to a constructive relationship. Regions should follow ptogv
che Agency-Wide Policy Fraiuuwork to fill gaps where appropriate.
vJi the States that are met
pecific guidance, where available,
HKTER-HPGeS
HCRA
FIFRA
Primary
Documental
1. Approach t
Process
2. Oonaequenon
of Oversight
New Guidance
New Guidance
New Guidance*
New Guidance*
Air Audit
System*
*
RCRA Inplesen-
tation Plan
National*
Criteria foe
Quality Program
and Enf orcefnent
Response Policy
Grant
Guidance
Grant
Guidance
, Agency-wide Policy Ftaaewuitfc also applies
D. Criteria for Direct, federal Enforcement in Delegated States
Introduction! In negotiations with the States, the Regions mist clearly define circumstances under
which EPA nay take direct enforcement action. In general, the Agency-wide Policy Framework should be
used to identify the factors to be considered. The program guidance should be followed for determining
when to take direct Federal enforceMent action based on lack of "tixely and appropriate* action,
including what classes of violation* merit penalties. The Regions should discuss with the States how
to take these actions in ways that are supportive of a state action using the Agency-wide Policy
FjraroworJt as • guide. , ;
MMTBl
w-ne
AIR
RCRA
FIFRA
*rt»ay
Docunentst
1. Factors ft* .
Consideration
of Direct Action
( excluding "tiwly
and appropriate'
and penal tiss)
2. Tinely and
Appropriats
Factor
<•'*
3. Penalties
Factors on where
appropriats
Nsw Guidance*
Nsw Ouidmos
To bs dBvelopsd
during FT 15
New Guidance*
New Guidance
t& bs developed
during FT BS
*
New Guidance
New Guidance
<
RCRAEnforoe-
•ent Response
Guidance*
RCRA Bnf ores-
sent Response
Guidance and
National Cri-
teria for s
Quality Pro-
gras.
RCRA Enf orce-
— •- Response
nee and
Penalty
y
Primacy Regs*t
PriMcy Megs
PtiMsey Rsgs
-------
B.
fication end Consultation
Regions should osvelop agreanenta with the States
a policy of "no surprises";
I In general. Region* should use the Agency-wide Policy Pranewock foe developing this pcction of the
|agiiu«uit, suppleMented by ptogiam specific guidance where presided (see below).
MKR3HIPIXS
OHMS
AIR
RCRA
FIFRA
Priasiy
Dexxnentai
1. AdvsnoB
Motif lotion
i. ConuulUtivt
Pttwessi
Inspections
Enforoasmt
Actions
3. Dtspubt
Rnolutlon
4. Press Aeleases
5. Publicly
Reported
PvrfooMnos
Osta
NewQuidanc**
NewQuidanos*
•
if
NowGuidanot*
•
*
*
A
*
National Air
Audit System*
Hot Guidance*
•
*
A
OS Guidance
He*D*
•
•
*
A
•
N/X
*
N/fc
N/A
Grant Guidanoa
Policy
also applie*
-------
P. State Hapotttng
intieductioniRegions ahould vortt »lth the State* to ensure tleely Hi-porting
of Stata data, and teanlvw definitional and quality cent to 1 problem. Raglona
ahould reach agteaaunt with State aa to how certain Stata enforcement actions
will ba reported, following ptuuiam guidance.
AI*
ICTW
PI PDA
5 export lna Iu-1
1* Report on Compliance)
Lave la
I. Tatgeta for WC
lists -report a t
ccawltarnta
3. Report on rtaeber of
actions'
J. Inappctiona
- repotta t
4. Kkpott on njaber at
filed
, ttnafOa^Ani Hewi
1. Evaluate tlavly and
Appropriate action
1. Haumda on penalties
iWf intttonat
1* Poraail adjofiutrfltiw
enf oropaawA act iofv
I. inspect tona
* MoncoaplUn ISNC)
Guidance for all
Stata Reporting
RaquUamjnta Pound
In *SI»«5 - PT 198S
Goal*. C
CoMettM
Neeeurw
\
A>)ectivae,
inta and
i
t
TOW»
"
Hew Ouldenoa*
None
ft^poeec
tlon
I Hagule-
See DM
Report
Reguln
i
Vrual
Inj
x all
r
Gulden
all SI,
Reputt
Requln
Pound
198% Gc
Object
Coniti
an) Itoi
i
oe for
it a
Ing
want*
In
- n
»la,
we,
•ante
mirea*
r
to the
National Air
Audit Syetaai
a
National Air
Audit Syatee)
Guldenoa
See ROU
irentat it
for all
Report!
i
^ laple*
30 Plan
t) Iteaei
r
Pcnthly Coapl-
iance and
CnforceMent tog
.
RCKA Ccrpllanoe ft
Enforcorant
Strateglea Naao
RCRA l«plimi«.-
atlon Plan
RCVA luriluaam-
ation Plan
H/A
sue
Guldanoa
Grant Outdance
Grant Guidance
Grant Guidance
Grant Guidance
Grant Guidance
Catered md by
State Lex
Grant Guidance
SMJ
Guidance
-------
RKVISKO:
identification of Documents Cited in Append!«
Crosscutt ingi *SPMS PY 1985 Goals, Objectives, and Measures* issued June 1984, by OMSK.
Water - NPDES
Drinking Water
Air
RCRA
FIFRA
o New Guidance - o
•National Guidance
for Oversight of
NPDES Programs
PY l«tfi.' Memo
fro* Jack Ravan
issued July 6,
1994; O
o CNCR System -
Quarterly Non-
compliance Report*
which each state/
Region submits o
regarding permit
no n -coup 1 i a nee
with purnit o
conditions by
aajor dischargers.
o
o Propoeed Regu1a tlon-
Definttion ot
instances of non-
compliance report'*
ed in ONCR
contained in
proposed regula-
tion cleared by
OMB «/22/84, will
be transmitted
to R»yions with
New Guidance.
New Guidance - "PY 1985
Initiatives on Compliance
Monitoring and Enforcement
Oversight,* Memo from
Vic Kimm Issued
June 29, 1984.
Grant Guidance - "Final
Guidance on PWS Grant
Program Implementation*
Memo from Vic Klmm on
March 20, 1V84.
Regs - NIPDWR, 40 CPR
Part 141 and 142.
Reporting Systems - SPNS
and PROS.
DM annual Reporting
Requirements - "Guidance
for Public Water System
Supervision Program .
Reporting Requirements*
memo froea Vic Kinm
issued July 9, 1984.
o New Guidance -
•Guidance on Timely
and Appropriate" EPA/
State Enforcement
Response for Signi-
ficant Air Violators"
Memo from Joe Cannon
issued June 28,
1984.
O National Air Audit -
•National Air Audit
System Guidelines for
FY 84", November 19BJ.
o CDS Guidance Mesa -
Memo from John Rasnic
to Air Branch Chiefs
dated April 10, 1984
with April 25, 1984
supplement.
o "Interim National
Crlteri.i for a
Quality ;'.
-------
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
JUL24
OFFICE OF ENFORCEMENT
AND COMPLIANCE
MONITORING
MEMORANDUM
SUBJECT: Form of Settlement of Civil Jud'ftial Cases
FROM: Courtney M.
Assistant Administrator for Enforcement
and Compliance Monitoring (LE-133)
TO: Regional Counsels
Associate Enforcement Counsels
This memorandum is intended to confirm the Agency's
general policy regarding the form of settlement of civil
judicial enforcement cases. The need for a statement of Agency
policy on the form of settlement recently arose because a case
had been settled without a consent decree, and the defendant
later refused to abide by the terms of the informal settlement.
In order to make sure that the problem does not recur, OECM is
reducing this policy to writing.
Agency policy is that after a complaint is filed, all civil
judicial cases should be settled only (1) by consent decree, or
(2) where appropriate, by a stipulation of dismissal. This
second approach should be utilized only when the settlement
requires payment of a penalty, and the penalty has been paid in
full at the time of settlement. In such cases, the continued
jurisdiction provided by a consent decree is not needed or
required. This form of settlement policy is the established
practice of the Department of Justice, and all EPA enforcement
attorneys should continue to abide by it.
Extraordinary and compelling circumstances may arise when
EPA, in consultation with DOJ, might wish to settle a case with-
out the use of a consent decree or a stipulation of dismissal.
If such a situation arises, then the involved Agency attorneys
should obtain my advance concurrence before representing to
the defendants any willingness to settle a case without either
a consent decree or stipulation of dismissal.
-------
•— 2—
Regardless of which form of settlement is used, a copy of
the settlement documents should be provided to the Docket Control
Office following my concurrence in the settlement so that the
appropriate data can be entered.
cc: F. Henry Habicht, II
-------
I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
/ WASHINGTON, D.C. 20460
\ 6 /9Q5
OFFICE OF
ENFORCEMENT AND
COMPLIANCE MONITORING
MEMORANDUM
SUBJECT: Enforcement Document Release Guidelines
FROM: Courtney M. Price
Assistant Administrator for Enforcement
and Compliance Monitoring
TO: Assistant Administrators
General Counsel
Inspector General
Associate Administrators
Regional Administrators
Regional Counsels
Attached are the Agency's new "Enforcement Document Release
Guidelines". These Guidelines will provide Agency-wide consis-
tency in the release of enforcement related documents. At the
same time, they are designed to release as much information as
possible to the public while still satisfying the Agency's
legal obligations and maintaining its enforcement program.
Accordingly, the Guidelines will assist program personnel
and enforcement attorneys in their decisions to withhold or
release enforcement documents requested by the public. As
indicated in the document, most of these decisions will be made
in response to FOIA requests. Nevertheless, it is important to
emphasize that all decisions for the release of any enforcement
document should be made on a case by case basis. If there are
any questions, the case attorney, the Regional Counsel, or an
OECM attorney should be consulted.
Questions regarding these Guidelines, should be addressed
to Bill Quinby of my staff. He may be reached at FTS 475-8781.
cc: Associate Enforcement Counsels
Program Enforcement Office Directors
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
ENFORCEMENT DOCUMENT RELEASE GUIDELINES
-------
Enforcement Document Release Guidelines
Table of Contents
Page
I. Purpose 1
II. Goal 2
III. Scope 2
IV. General Principles 4
V. Releasing General Enforcement Documents 7
A. Enforcement Policy 7
B. Enforcement Strategic Planning 9
C. Management/Administrative 10
D. Deliberative Support Documents 11
E. Reference Files 12
F. Documents Containing Attorney-Client
Communications 12
VI. Releasing Case-Specific Documents 13
A. Case Files 13
In General 13
Attorney Work Product/Attorney-Client 16
Settlement Documents 18
Other Documents 19
B. Case Status Reports 21
VII. Conclusion 22
APPENDIX 24
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I. Purpose
The purpose of this memorandum is to provide interpretive
guidelines for releasing EPA enforcement related documents to
the public in situations when the law provides discretion. The
Agency seeks to enhance national consistency in the release of
Agency documents by providing these guidelines to enforcement
attorneys and program personnel. Such consistency will promote
fairness to all public interests and ensure that EPA meets its
legal responsibilities while protecting the effectiveness of the
enforcement program.
This memorandum is intended to provide general guidelines.
The decision to release a particular document may vary, depending
on the type of document, function of the document in the Agency
process, and the status of that process. The memorandum seeks
to articulate the common principles which can be applied to
situations in which release decisions must be made. Each program
office can tailor these guidelines to meet its individual statu-
tory and programmatic needs. If the law provides EPA with the
discretion to release documents, these guidelines will assist
Agency personnel in their case by case determinations.
Agency personnel should always contact the appropriate case
attorney before releasing documents relating to enforcement
activities. Notifying the appropriate enforcement attorney is
important because of the possible impact on potential or pending
enforcement actions and the changing case law related to document
release. All decisions for the release of any enforcement document
-------
-2-
should be made on a case by case basis, taking into account the
guidelines set out in this memorandum.
II. Goal ~
The EPA recognizes that an effective enforcement program is
essential to the Agency's overall mission of protecting the
environment. EPA will release as much information as possible to
the public consistent with satisfying legal obligations while
still maintaining its enforcement program. The Agency will
satisfy all statutory requirements to release or withhold docu-
ments. If the Agency has discretion to release documents, it
should generally release the documents, or portions thereof,
unless such release will interfere with the effectiveness of
its enforcement effort.
III. Scope
The guidelines apply to any type of enforcement document,
and include written information, material recorded on magnetic
tape, material contained in a computer, video tape, film, etc.
These guidelines apply whether or not there has been a specific
request for the document.
The document must be an Agency record. A document is
considered an EPA record if it has some or all of the following
characteristics: it was produced in the context of Agency work;
-------
-3-
its creation or physical possession arose within established
Agency procedures, and/or it was distributed to others, including
the file. Generally, if a document is within the custody and the
control of the Agency, it is considered an Agency record. Personal
notes, message slips, appointment calendars, etc., of an Agency
staff member may not be an EPA record if they were not circulated
to or used by other EPA employees, were unrelated or only partially
related to EPA activities, or were used only to jog the memory of
the author. Bureau of National Affairs v. U.S Department of
Justice 742 F.2d 1484 (D.C. Cir. 1984).
Although the focus of the memorandum is on the release of
documents, the 'import of this guidance pertains to information
contained within documents. In most cases, after EPA determines
that it will withhold certain information, the Agency will make
reasonable efforts to segregate out those portions of documents
which can be released. In addition, the principles in the
guidance are applicable to the release of information during
oral communications with persons outside the Agency.
This guidance does not attempt to address in any detail how
or when EPA will release documents requested under the Federal
Rules of Procedure during civil and criminal litigation. The
release of documents pursuant to discovery proceedings during
litigation will depend on the issues being litigated and the
strategy employed. Any request for documents outside of estab-
lished discovery procedures that relate to potential or pending
civil and criminal litigation should be brought to the attention
of the case attorney.
-------
-4-
This guidance also does not apply to requests for information
received from Congressional committees or subcommittees. For
guidance on handling such requests, Agency personnel should con-
sult previously issued policy statements which are specific to
Congressional inquiries, Memoranda of Understanding which EPA
has entered into with several committees, and OECM's Congressional
Liaison Officer in coordination with the Office of External Affairs
and, when appropriate, with the Office of General Counsel.
IV. General Principles B
There are a number of statutes, regulations and rules of pro-
cedure which place constraints on the Agency's discretion in
releasing enforcement documents to the public. These statutes
include: the Administrative Procedure Act, (APA); the Freedom
of Information Act (FOIA) which is included in the APA, and
requires publication and release of certain Agency documents;
the Privacy Act which prohibits release of certain information
pertaining to individuals; and various environmental statutes
which prohibit release of trade secrets and mandate release of
certain pollution data. Other rules of procedure, such as Rule 6
of the Federal Rules of Criminal Procedure, require safeguarding
grand jury material. The EPA has promulgated regulations which
implement FOIA and state Agency policy on how it will use its
discretion to release information in certain cases. These
statutes and regulations are described more fully in the Appendix
(page 24).
-------
— 5—
Congress has required that agencies release all requested
records unless FOIA provides a specific exemption authorizing
the withholding of those records. This guidance is based in large
part on whether specific documents fall within one of the exemp-
tions from mandatory disclosure. If a document fits within
one or more of the exemptions that are discretionary under EPA's
regulations (exemptions b(2), b(5) and b(7))f the Agency's
decision to release a document should be determined on a case
by case basis. The EPA should consider releasing the document
if no important purpose would be served by withholding it.
Generally, once EPA releases a document, it may not later
withhold the document unless the Agency can show: 1) that it was
disclosed under explicitly limited and controlled conditions, and
2) that EPA preserved the rationale for the privilege established
in the exemption. An unauthorized leak of a document does not
necessarily waive an EPA privilege.
On occasion, a party already engaged in an administrative
enforcement proceeding or litigation with the Agency may use
FOIA to enhance, replace, or otherwise modify the discovery
rules. These rules are traditionally available under the
Federal Rules of Civil Procedure, Federal Rules of Criminal
Procedure, discovery rules of other Federal courts and normal
Agency discovery procedures. Whether or not there is an estab-
lished administrative discovery procedure (e.g., the consoli-
dated rules of practice found in 40 C.F.R. Sections 22.01 et
seq.) the Agency may consider withholding documents where a
privilege exists to withhold the document under a FOIA exemption.
-------
-6-
For example, EPA is able to withhold investigatory records
compiled for law enforcement purposes the release of which would
generally interfere with a prospective or pending enforcement
proceeding under exemption 7(A) of FOIA. Investigatory records
(files) were defined originally by Congress as "related to enforce-
ment of all kinds of laws, labor and securities laws as well as
criminal laws. This would include files prepared in connection
with related Government litigation and adjudicative proceedings."
H.R. Rep. No. 1497, 89th Cong., 2d Sess. 11 (1966). Expressed
another way, the information must be compiled for a demonstrated
law enforcement purpose within the Agency's enforcement authority,
or gathered in the good faith belief that the prospective defendant
might violate or has violated federal law. This is in contrast
to information gathered for routine regulatory purposes or from
customary compliance monitoring. However, an evaluation is still
necessary to determine whether the release of a document will
interfere with an investigation.
Exemption 7 of FOIA contains five additional withholding
privileges for investigatory records which EPA will less fre~
quently encounter in an administrative, civil or criminal
enforcement context. They are documents whose release would
result in at least one of the following five consequences:
7(B) deprive a person of a right to a fair
trial or an impartial adjudication,
7(C) constitute an unwarranted invasion of
personal privacy,
7(D) disclose the identity of a confidential
source,
-------
— 7 —
7(E) disclose investigative techniques-and
procedures,
7(F) endanger the life or physical safety of
law enforcement personnel.
EPA will not provide any person with exempt documents the
release of which would harm a case in litigation. Nevertheless,
the Agency must respond to any FOIA request on a case by case
basis. Aqency personnel, including the appropriate attorney,
should first determine whether an exemption applies. If an
exemption does apply, the Agency may withhold the document, or
at its discretion, release it to the requesting party. If an
exemption does not apply, EPA must release the document. Under
FOIA, a party's rights are neither enhanced nor diminished by
his or her status as a private litigant. NLRB v. Robbins Tire
and Rubber Co. 437 US 214 (1978).
Various policy memoranda explain the need to segregate and
secure those documents related to criminal investigations and
enforcement activity (e.g., a Memorandum from the Assistant
Administrator dated January 7, 1985, entitled "Functions and
General Operating Procedures for the Criminal Enforcement
Program"). EPA personnel should follow such guidance to prevent
the release of documents related to criminal proceedings. This
Document Release guidance is consistent with existing procedures
and, as a general matter, is applicable to documents related
both to criminal and civil enforcement activity.
V. Releasing General Enforcement Documents
A. Enforcement Policy Document
These documents generally instruct Agency staff on how EPA
will conduct its enforcement activities. Examples include a
-------
Memorandum from the Administrator dated September 20, 1982, on
enforcement action against stationary air sources which will
not be in compliance by December 31, 1982, and a Memorandum from
the Assistant Administrator for Air, Noise and Radiation dated
September 15, 1982, on issuing notices of violation under the
Clean Air Act.
EPA will release to the public those documents containing
final enforcement policy. Such documents are signed by at least
a Divison Director or equivalent. This policy is consistent
with the Agency's objective of informing the public about how it
conducts business.
Even if documents contain predecisional or deliberative
information, EPA will not necessarily withhold such documents or
portions of them under FOIA exemption 5. The Agency will withhold
those documents only if an important purpose would be served by so
doing. An important purpose for withholding might be found where
release would be likely in the future to inhibit honest and frank
communications necessary to effective policy making or might
inaccurately reflect or prematurely reveal the views of the Agency.
Such predecisional documents include draft copies which are often
circulated within the Agency for review and comment, documents
which discuss recommendations and options for the establishment
of enforcement policy, and documents which transmit them if such
documents reveal content. These documents play an integral part
in development of final enforcement policy.
A waiver of this deliberative process privilege can occur,
as in other contexts, if EPA distributes a document outside the
-------
-9-
Federal government. Nevertheless, if the Agency can show that
the disclosure was limited and controlled, waiver may not apply.
For example, disclosure to a state agency may result in waiver
unless the responsible office has determined that state comment
is important to the Agency decision-making process and has taken
steps to ensure that the state will keep the distributed draft
confidential (e.g., transmittal of the draft with a cover letter
explaining the need for limited distribution, numbering the docu-
ments sequentially, and requesting that all copies be returned to
EPA after state comment).
B. Enforcement Strategic Planning
These documents relate to enforcement initiatives and
strategies which the Agency develops to ensure that sources
comply with environmental statutes and regulations. An example
is a guidance Memorandum from the Assistant Administrator for
Solid Waste and Emergency Response dated June 18, 1982, which
broadly describes fiscal year 1983 RCRA permit and inspection
numbers. Agency personnel should release documents which pertain
to a broad class of sources, but withhold documents which are so
specific that an individual source could use the information to
circumvent EPA enforcement activity.
For example, final Agency documents detailing enforcement
expenditures for compliance inspections during a fiscal year are
documents which EPA should release to the public. On the other
hand, EPA should consider withholding documents, or portions
thereof, specifically detailing the projected inspection of
enforcement targets in various metropolitan areas. These
-------
-10-
documents are primarily intended for internal use and their re-
lease could enable a source to circumvent environmental statutes
and regulations. This rationale will likely be available only in
the narrow context of detailed regional plans to implement a
specific enforcement effort. If the document is not an investi-
gative record associated with a specific enforcement case, EPA
may be able to apply exemption 2 of FOIA. This exemption relates
to documents involved with internal agency personnel rules and
practices. The case law has extended the exemption to certain
predominantly internal documents, the release of which would
significantly risk circumvention of agency regulations or statutes.
Crooker v. Bureau of Alcohol, Tobacco and Firearms, 670 F.2d 1051,
1074 (D.C. Cir. 1981). Of course, a regional plan that is in the
form of a recommendation rather than a final agency policy could
also be withheld under exemption 5's deliberative process
privilege.
C. Management/Administrative
These documents relate to the day-to-day operation and
management of the Agency. An example is a Memorandum from the
Associate Administrator and General Counsel dated November 28,
1983, which explains the requirement for clearance of significant
enforcement pleadings.
Although the Agency has discretion to withhold internal
personnel rules and routine management documents under FOIA
exemption 2, EPA will generally release these documents unless
their release would interfere with Agency operations. The
-------
-11-
release of most final documents related to routine budget matters
and internal Agency management will not interfere with overall
Agency activities. If the program office responsible for such
operations considers that a release would interfere with Agency
operations, it may withhold the documents under exemption 2 of
FOIA. Instances of interference are rare, and consultation with
the office of General Counsel or Regional Counsel is recommended
in such cases.
EPA can also withhold documents containing preliminary
enforcement budget information if their release would interfere
with the frank exchange of ideas prior to final budget decisions.
These documents may be exempted from disclosure under exemption 5.
D. Deliberative Support Documents
These documents accompany other enforcement documents. They
include certain transmittal memos, memos containing recommendations/
evaluation of enforcement options, suggestions, analyses, etc.,
related to general enforcement matters.
In most cases, EPA will use its discretion to release doc-
uments which are predecisional intra- and interagency documents,
unless such production would cause harm to the enforcement process.
The rationale for retention includes the protection of open and
frank discussion of enforcement options. The Agency can withhold
the deliberative portions of such requested documents under
exemption 5 of FOIA.V
I/ "Guidance for Assertion of Deliberative Process Privilege"
Tssued by the Administrator, October 3, 1984; and memorandum
from acting General Counsel, same subject, issued April 22, 1985.30
-------
-12-
E. Reference Files
These are materials that enforcement personnel use for
assistance in performing general Agency business. They include
technical files, sample forms, etc. Generally, EPA will make
reference documents available to the public with the exception
of materials which EPA employees own and materials published by
non-federal organizations which already are readily available
from other sources. (See 40 C.F.R. §2.100(b) for definition of
agency record.)
F. Documents Containing Attorney-Client Communications
These documents which are not necessarily case specific
contain communications made in confidence between Agency staff
and attorneys for the purpose of obtaining or providing legal
advice related to EPA matters in which the "client" is authorized
to act.
EPA legal personnel will not disclose, without the client's
consent, communications made in confidence to or from an Agency
attorney for the purpose of obtaining or providing legal advice
related to an EPA matter. EPA may withhold documents containing
such information, if drafted by the client or the attorney. Also
in order to protect the inadvertent disclosure of the client's
*
confidential factual information it may withhold documents whether
or not the communication is made in the context of litigation.
The documents may be exempted from disclosure under the attorney-
client privilege included in exemption 5. Mead Data Control v.
U.S. Department of the Air Force, 566 F.2d 242 (D.C. Cir. 1971).
-------
-13-
There are instances when the Agency may choose not to claim
this privilege and therefore will release documents containing
these communications. For example, EPA will release the docu-
ments if the program personnel do not consider the factual
information confidential either at the time it is communicated
or subsequently thereto. If EPA wants to withhold documents,
it should be prepared to demonstrate that the program client
expected confidentiality. Personnel making intra-regional com-
munications between a program office and a Regional Counsel's
office should be sensitive to the fact that the communications
may be confidential and not available for disclosure at a later
date. For example, the document may be stamped "confidential,
not for release under FOIA" thus limiting distribution only to
the EPA personnel who need to know and are authorized to act for
EPA on the particular matter. EPA should release documents in
which the attorney is only stating general Agency policy or if
the advice is later adopted as Agency policy. EPA should consider
release of documents, or portions thereof, containing attorney-
client communications if the release would not harm future frank
exchanges between Agency staff and its attorneys.
VI. Releasing Case-Specific Documents
A. Case Files
In General
Documents in case files contain legal and/or technical
information related to a specific case or party. Case files are
frequently located in a number of offices, including offices
-------
-14-
that conduct field investigations, perform technical evaluations,
or provide legal assistance.
Case file documents accumulate at these separate offices
during different stages in the enforcement process (e.g., while
EPA is investigating a party, while EPA is initiating an admini-
strative enforcement action, or after EPA issues a formal enforce-
ment document). Whether EPA will release the information may
depend on the stage of the enforcement activity. Release is
generally appropriate when the party is in compliance with the
law or the compliance status is unknown. Documents containing
technical information related to the party's routine compliance
monitoring or tracking are available to the public or to poten-
tially responsible parties in CERCLA litigation.
Once EPA identifies a potential violation, it may withhold
investigatory documents in order to prevent interference with
any potential or pending enforcement proceeding. In such cases,
EPA should withhold the documents to prevent harm to any potential
enforcement action which may occur by the premature release of
evidence or information. If EPA wants to withhold the documents,
it has the burden of demonstrating the potential harm to an
enforcement proceeding. This decision should be made on a case
by case basis. EPA would be able to withhold these requested
documents under exemption 7(A) of FOIA. NLRB v. Robbins Tire and
Rubber Co., 437 U.S. 214 (1978).
In many cases, the Agency will use its discretion and release
investigatory data. This policy (with the exception of criminal
investigations) serves the useful purposes of helping a source
-------
-15-
identify the environmental problem, allowing the source to comment
on the accuracy of EPA factual findings, and informing the public
of the extent of the environmental problem.
In other instances the Agency will consider withholding of
investigatory documents. The further the Agency proceeds in any
enforcement action or the more data the Agency interprets, the
more reluctant it will be to use its discretion and release
documents without a mutual document exchange with the source.
The Agency will also be reluctant to release investigatory
findings where adequate quality assurance checks have not been
made, and the release of the findings could interfere with the
enforcement activity. Finally, the necessity to protect confi-
dential information, and the greater need to maintain secrecy in
criminal investigations provide valid reasons for the Agency to
retain documents. Agency personnel should always discuss
investigatory documents which relate to enforcement activity
with the case attorney, the Regional Counsel or an OECM attorney
prior to the release decision.
Once an enforcement action is concluded, EPA will be more
willing to release investigatory documents because their release
is less likely to interfere with an enforcement proceeding.
Nevertheless, if their disclosure would interfere with other
similar or related proceedings, reveal the identify of informers,
or if other exemption 7 privileges still apply, EPA may withhold
the documents.
Case files may contain information in documents which a com-
pany considers confidential business information. As discussed
-------
-16-
in the Appendix, part D, EPA is statutorily prohibited from
releasing confidential business information.
Attorney Work Product And Attorney-Client Materials
Other types of documents which EPA may withhold are those
prepared by, for, or at the request of an attorney in anticipa-
tion of litigation. The courts allow EPA to withhold such
attorney work product documents in order to create a zone of
privacy around the attorney to protect the adversarial process.
Hickman v. Taylor, 329 U.S. 495 (1947). While EPA may withhold
such documents under exemption 5, it may make a discretionary
release of the documents. In such a case, the Agency staff,
including the attorney, would determine on a case by case basis
that the release would not result in harm to the attorney's
ability to operate freely in litigation. In order for EPA to
withhold a document under the attorney work product privilege,
the document must have been prepared at the time when there
was some articulable violation. Litigation need not have been
pending; however, there should be some prospect of litigation,
either administrative or judicial.
Specific types of documents which may be protectable as
attorney work products and which EPA may choose not to release
are:
0 Investigative reports prepared by field
investigators under the general direction
of attorneys to verify further a viola-
tion, and which would be relied upon by a
reviewing attorney;
0 Documents prepared at the request of
technical staff working with attorneys
in anticipation of, or preparing for, an
administrative hearing or litigation;
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0 Reports prepared by consultants under
direction of attorneys to assist attorneys
in preparation for litigation;
0 Reports from experts prepared under direction
of attorneys which organize and summarize the
evidence for a particular enforcement action;
0 Attorney-prepared factual synopses of, and
opinions on, a particular case;
0 Attorney notes summarizing the facts and
observations on th'e evidence;
0 Attorney notes of conversations with program
personnel, company representatives, etc.; and,
0 Witness interviews conducted by attorneys or
employees working on their behalf.
Below are examples of documents which may not be protected as
attorney work products, but could be protected as investigatory
records if they meet the requirements of exemption 7:
0 Routine investigatory reports gathered
during regular compliance monitoring; and,
0 Verbatim witness reports and statements.
Whether or not a document is an attorney work product will
depend on a case by case review of the document in the context of
the particular enforcement activity. Even if the attorney work
product privilege does not apply, other exemptions, such as for
investigatory records (exemption 7), may permit the Agency to
withhold the document.
Case files may also contain documents with attorney-client
communications. EPA policy related to attorney-client documents
is discussed above on pages 12 - 13 in the context of general
documents.
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Settlement Documents
In negotiating a settlement of an enforcement action, EPA
will frequently exchange draft settlement terms with the opposing
party. These terms are often embodied in a draft administrative
or judicial order. The drafts facilitate Agency consideration
of settlement.
The law on whether an agency may withhold settlement docu-
ments under exemption 5 of FOIA is currently unresolved. If
there is the likelihood that non-parties will request settlement
documents during litigation, the lead counsel should consider
seeking a protective order. Or at the minimum he should seek a
stipulation between parties that they will not release the
settlement documents. Although in this latter case, the stipu-
lation would not negate EPA's obligation to honor a FOIA request,
insofar as it is valid.
In all such settlement situations, even if no protective
order or stipulation exists at the time of a request under FOIA,
EPA may consider withholding such documents under the theory
that review and comments are necessary for intra-agency review
of the settlement (exemption 5). However, before such records
are withheld, consultation with the Office of General Counsel or
Regional Counsel is recommended in view of the unsettled law in
this area. Any transmittal of settlement documents to an opposing
party should explain that the Agency expects that party to keep
the documents confidential. It should also contain language indi-
cating that the limited dissemination is only intended to help the
Agency decide whether the settlement is appropriate.
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The above guidance is consistent with the Agency goal of
providing for public participation in the litigation settlement
process. If a non-party feels that it needs to protect its
interests in particular litigation, the non-party may seek
intervention in a civil suit. Depending upon the scope of
intervention permitted by the Court, the party-intervenor may
participate in resolving the litigation by reviewing a negotiated
order or even participating in the negotiations. In addition,
the Department of Justice will notify the public in the Federal
Register of any proposed judicial consent decree. The public
will then have the opportunity to comment on the decree before it
becomes final.
Other Documents
Other documents which may be located in case files are law
enforcement documents which discuss unique investigative techni-
ques not generally known outside the government. EPA need not
disclose such documents when they describe specific investigatory
techniques employed to detect violations or report on techniques
for a particular investigation (e.g., a document which lists
those particular facts which a field investigator will examine
during the inspection of a narrow class of sources). EPA should
not disclose such documents if the release of the document could
assist a potential target of investigation in avoiding EPA's
detection of an existing violation. EPA is able to withhold
these requested documents under exemption 7(E) of FOIA.
Document retention should not extend to routine procedures
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already known to the public, such as common scientific tests,
technical reports which discuss indicators of compliance,
and methods for interviewing witnesses.
EPA will generally release to the public enforcement docu-
ments which it issues to sources during formal enforcement
actions (other than pre-final settlement documents). Examples
of such documents include notices of violation under the Clean
Air Act, administrative orders, and pleadings which are filed
with an administrative hearing officer or court. Since the
decision in Cohen v. EPA, 575 F. Supp. 425 (D.D.C. 1983), EPA
has decided to release, except in very limited circumstances,
the names of potentially responsible parties for hazardous waste
site clean-up in response to FOIA requests. EPA will enter the
names into the data base of a computer system and will provide
requesters with a list of potentially responsible parties who
have received notice letters. (See Memorandum from Gene A.
Lucero, Director of the Office of Waste Programs Enforcement to
Waste Management Division Directors dated December 9, 1983.)
Documents may be in enforcement files which relate to how
EPA should use its enforcement discretion to prosecute a particular
polluter. As a general matter, EPA need not release such documents
if to do so would cause harm to the enforcement process. The
EPA is able to withhold these documents, if predecisional, because
under exemption 5 they would compromise the deliberative process
of the Agency, as attorney work product, and/or as attorney-client
privileged. In addition, they may be withheld if they are investi-
gatory documents, the release of which would interfere with a
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potential or pending enforcement action (exemption 7(A)). EPA
will release documents containing general enforcement discretion
policy statements, unless it is clear that their release would
interfere with enforcement proceedings and therefore qualify
them as investigatory records.
The need to withhold documents discussing enforcement
discretion may diminish once a final decision is made or a case
is concluded. At that time, in responding to a FOIA request
after final action, the office considering a document release
should assess whether the release of a predecisional delibera-
tive document or an attorney-client communication would hinder
free and frank.discussion. The attorney work product privilege
is not necessarily lost if litigation, or the potential for
litigation, no longer exists. FTC v. Grolier, Inc. 103 S.Ct.
2209 (1983). Even in the case of concluded or halted criminal
actions, additional concerns might preclude the release of the
documents. EPA will not release documents if they disclose the
identity of a confidential source, confidential information, or
investigative techniques and procedures, or if this release
would endanger the life or physical safety of law enforcement
personnel. These exemptions under FOIA related to criminal
cases are found in exemptions 7(D), (E) and (F). (See page 6.)
B. Case Status Reports
These are manually created or computerized documents in which
the Agency reports enforcement activities. The documents may be
related to compliance tracking, general enforcement planning, and
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ongoing specific enforcement actions including active cases
against violating sources.
These case status reports serve a number of functions,
including compliance monitoring. The Agency will make available
to the public documents containing information relating to track-
ing various matters related to pollution sources. The EPA will
consider withholding documents (including non-public documents
after a case is referred or filed) once a source is identified
as violating an environmental standard. Whether the Agency will
release a document after it makes that identification depends on
the degree to which its release will interfere with enforcement
proceedings. For example, the release of a list of suspected
violating sources for which EPA is completing its investigations
might interfere with the normal enforcement process. The EPA is
able to withhold these requested investigatory reports under
exemption 7 (A) of FOIA. Other case status reports are used as
litigation planning and management tools. These reports,
whether prepared by attorneys or program personnel working with
the attorneys, might fall within the category of attorney work
product as discussed above.
VII. Conclusion
All determinations for the release of any document must be
made on a case by case basis, in light of applicable legal
authorities and the guidelines discussed in this document.
Enforcement attorneys are available at headquarters and in all
regional legal offices for additional consultation on these
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matters. Regions are encouraged to establish internal procedures
to ensure that the Regional Counsel is notified of all written
requests for enforcement-related documents.
The policies and procedures set out 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.
Courtney M. Price
Assistant Administrator for
Enforcement and Compliance Monitoring
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APPENDIX
There are a number of statutes and regulations which place
constraints on the Agency's discretion to release enforcement
documents to the public. The statutes listed below expressly
require or prohibit disclosure of records; the regulations
address EPA policy.
A. Administrative Procedure Act (APA)
The Freedom of Information Act (FOIA) is contained in Section
552 of the APA. 5 U.S.C. § 552. Congress enacted FOIA for the
express purpose of increasing disclosure of agency records. The
first part of FOIA mandates the disclosure of certain agency
documents. An agency is required to publish- in the Federal
Register certain enumerated types of material. In addition,
FOIA requires all agencies to index and make available for public
inspection and copying other enumerated types of material. Such
documents include statements of policy and interpretation adopted
by the agency, administrative staff manuals, and instructions to
staff that affect members of the public. Finally, FOIA requires
disclosure, on request, of all reasonably described records,
unless the documents can be classified within one or more of the
nine categories of records that are exempt from the disclosure
requirements. Court decisions have clarified which documents
are properly classified as exempt from mandatory disclosure.
Although FOIA permits the Agency to withhold certain
documents from disclosure, it does not provide guidance on how
the Agency should use its discretion to release "exempt" or
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"privileged" documents. Because FOIA contains an exemption
from release for certain documents it does not automatically
mean EPA should withhold them.
Accordingly, EPA has promulgated regulations which clarify
how the Agency will utilize its discretion to release documents
which it could withhold as exempt under the statute. These
regulations are found in 40 C.F.R. Part 2.
B. The FOIA Regulations
The Agency has determined that it will not release any
document which falls within certain of the exemptions unless it
is so ordered by a federal court or in "exceptional circumstances"
with the approval of the Office of General Counsel or Regional
Counsel. 40 C.F.R. Section 2.119. These documents include those
related to national defense or foreign policy; documents for which
a statute prohibits disclosure; trade secrets; personnel/medical
and related files, release of which would constitute an unwarranted
invasion of personal privacy; reports prepared by, or for, an
Agency responsible for regulating financial institutions; and
geological and geophysical information. On the other hand, the
regulations allow the Agency to utilize its discretion in decid-
ing whether to release requested documents related to internal
personnel practices, intra-agency or interagency memoranda, and
investigatory records. Disclosure of such records is encouraged
if no important purpose would be served by withholding the records.
40 C.F.R. Section 2.119(a)
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C. Privacy Act
Congress enacted the Privacy Act in 1974 to promote govern-
mental respect for the privacy of citizens. 5 U.S.C. § 552a.
Section 3(b) of the Act prohibits agencies, except in 12 specified
instances, from releasing or disclosing any record maintained in
a system of records pertaining to an individual (other than to
that individual) without prior written consent of the individual.
If EPA must release a document in response to a FOIA request, it
is exempt from the nondisclosure provisions of the Privacy Act.
D. Confidentiality
The environmental statutes which EPA enforces prohibit ,the
release of documents or information that contain trade secrets
or confidential commercial or financial information. This pro-
hibition is usually located in the individual section of the
statute dealing with EPA investigatory authority, e.g., Section
114 of the Clean Air Act, 42 U.S.C. § 7414; Section 308 of the
Clean Water Act, 33 U.S.C. § 1318; Section 3007 of the Resource
Conservation and Recovery Act, 42 U.S.C. § 6927; and Section 104
of the Comprehensive Environmental Response, Compensation, and
Liability Act, 42 U.S.C. § 9604. In addition, The Trade Secrets
Act, 18 U.S.C. § 1905, contains an independent prohibition against
certain release of confidential business information by agencies.
Section 1905 makes it a crime for a federal employee to disclose
such information.
On September 1, 1976, EPA promulgated procedures and substan-
tive rules on how to handle information that may be confidential.
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These regulations at 40 C.F.R. Part 2, Subpart B, establish
basic rules governing the handling of business information.
The regulations at 40 C.F.R. § 2.204 require that before docu-
ments are released, EPA personnel must determine whether the
documents are confidential, or whether the business asserts a
claim of confidentiality. In general, if there is a claim, the
material cannot be released prior to a review and confidentiality
determination by the appropriate EPA legal office and notice to
the submitter. Agency guidance explaining the procedures for
handling business information under the regulations can be found
in a Memorandum from the Deputy Administrator dated November 6,
1980, and entitled "Disclosure of Business Information under FOIA.1
E. Statutes Requiring Disclosure
Many of the environmental statutes EPA enforces generally
require the disclosure of certain information. For example the
Clean Air Act requires that information EPA obtains under Section
114, other than trade secrets, shall be available to the public.
CERCLA has a similar provision in Section 104(e)(2). Where the
environmental statute generally requires disclosure of information
obtained under the investigatory authority, EPA will interpret
this language consistent with FOIA.
F. The Federal Rules of Civil Procedure and Federal Rules
of Criminal Procedure
Although exemption 5 has not been construed to incorporate
every privilege in civil discovery, generally, those documents
which are privileged under Rule 26 of the Federal Rules of Civil
Procedure are documents which the Agency can withhold under FOIA.
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Federal rules of procedure do not in themselves qualify under
exemption 3 of FOIA, which protects information specifically
exempted from disclosure by statute. However, when Congress
subsequently modifies and enacts a rule of procedure into law
the rule may qualify under the exemption. For example, it has
been held that because Congress altered Rule 6(e) of the Federal
Rules of Criminal Procedure (concerning matters occurring before
a grand jury), that rule satisfies the "statute" requirement of
exemption 3. Therefore, grand jury material in the hands of
Agency personnel can be withheld under FOIA. Other rules require
the release of certain documents to criminal defendants.
G. Bibliography
1. Freedom of Information Case List, U.S. Dept. of
Justice, 1985 Edition;
2. Litigation under the Federal Freedom of Information
Act and Privacy Act, Adler & Halperin, Center for
National Security Studies (9th Edition, 1983);
3. Federal Information Disclosure 2 Vols. James T.
O'Reilly, McGraw-Hill, 1979 (Supplement Available);
4. Guidebook to the Freedom of Information and Privacy
Acts, Clark Boardman Co., Ltd., 1983.
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I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
SEP J6
1985
OFFICE OF
ENFORCEMENT AND
COMPLIANCE MONITORING
MEMORANDUM
SUBJECT: Enforcement Document Release Guidelines
FROM: Courtney M. Price C—^-^-^ /^V
Assistant Administrator for Enforcement
and Compliance Monitoring
TO: Assistant Administrators
General Counsel
Inspector General
Associate Administrators
Regional Administrators
Regional Counsels
Attached are the Agency's new "Enforcement Document Release
Guidelines". These Guidelines will provide Agency-wide consis-
tency in the release of enforcement related documents. At the
same time, they are designed to release as much information as
possible to the public while still satisfying the Agency's
legal obligations and maintaining its enforcement program.
Accordingly, the Guidelines will assist program personnel
and enforcement attorneys in their decisions to withhold or
release enforcement documents requested by the public. As
indicated in the document, most of these decisions will be made
in response to FOIA requests. Nevertheless, it is important to
emphasize that all decisions for the release of any enforcement
document should be made on a case by case basis. If there are
any questions, the case attorney, the Regional Counsel, or an
OECM attorney should be consulted.
Questions regarding these Guidelines, should be addressed
to Bill Quinby of my staff. He may be reached at FTS 475-8781.
cc: Associate Enforcement Counsels
Program Enforcement Office Directors
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
ENFORCEMENT DOCUMENT RELEASE GUIDELINES
-------
Enforcement Document Release Guidelines
Table of Contents
Page
I. Purpose 1
II. Goal 2
III. Scope 2
IV. General Principles 4
V. Releasing General Enforcement Documents 7
A. Enforcement Policy 7
B. Enforcement Strategic Planning 9
C. Management/Administrative 10
D. Deliberative Support Documents 11
E. Reference Files 12
F. Documents Containing Attorney-Client
Communications 12
VI. Releasing Case-Specific Documents 13
A. Case Piles 13
In General 13
Attorney Work Product/Attorney-Client 16
Settlement Documents 18
Other Documents 19
B. Case Status Reports 21
VII. Conclusion 22
APPENDIX 24
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I. Purpose
The purpose of this memorandum is to provide interpretive
guidelines for releasing EPA enforcement related documents to
the public in situations when the law provides discretion. The
Agency seeks to enhance national consistency in the release of
Agency documents by providing these guidelines to enforcement
attorneys and program personnel. Such consistency will promote
fairness to all public interests and ensure that EPA meets its
legal responsibilities while protecting the effectiveness of the
o
enforcement program.
This memorandum is intended to provide general guidelines.
The decision to release a particular document may vary, depending
on the type of document, function of the document in the Agency
process, and the status of that process. The memorandum seeks
to articulate the common principles which can be applied to
situations in which release decisions must be made. Each program
office can tailor these guidelines to meet its individual statu-
tory and programmatic needs. If the law provides EPA with the
discretion to release documents, these guidelines will assist
Agency personnel in their case by case determinations.
Agency personnel should always contact the appropriate case
attorney before releasing documents relating to enforcement
activities. Notifying the appropriate enforcement attorney is
important because of the possible impact on potential or pending
enforcement actions and the changing case law related to document
release. All decisions for the release of any enforcement document
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should be made on a case by case basis, taking into account the
guidelines set out in this memorandum.
II. Goal
The EPA recognizes that an effective enforcement program is
essential to the Agency's overall mission of protecting the
environment. EPA will release as much information as possible to
the public consistent with satisfying legal obligations while
still maintaining its enforcement program. The Agency will
satisfy all statutory requirements to release or withhold docu-
ments. If the Agency has discretion to release documents, it
should generally release the documents, or portions thereof,
unless such release will interfere with the effectiveness of
its enforcement effort.
III. Scope
The guidelines apply to any type of enforcement document,
and include written information, material recorded on magnetic
tape, material contained in a computer, video tape, film, etc.
These guidelines apply whether or not there has been a specific
request for the document.
The document must be an Agency record. A document is
considered an EPA record if it has some or all of the following
characteristics: it was produced in the context of Agency work;
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its creation or physical possession arose within established
Agency procedures, and/or it was distributed to others, including
the file. Generally, if a document is within the custody and the
control of the Agency, it is considered an Agency record. Personal
notes, message slips, appointment calendars, etc., of an Agency
staff member may not be an EPA record if they were not circulated
to or used by other EPA employees, were unrelated or only partially
related to EPA activities, or were used only to jog the memory of
the author. Bureau of National Affairs v. U.S Department of
Justice 742 F.2d 1484 (D.C. Cir. 1984).
Although the focus of the memorandum is on the release of
documents, the import of this guidance pertains to information
contained within documents. In most cases, after EPA determines
that it will withhold certain information, the Agency will make
reasonable efforts to segregate out those portions of documents
which can be released. In addition, the principles in the
guidance are applicable to the release of information during
oral communications with persons outside the Agency.
This guidance does not attempt to address in any detail how
or when EPA will release documents requested under the Federal
Rules of Procedure during civil and criminal litigation. The
release of documents pursuant to discovery proceedings during
litigation will depend on the issues being litigated and the
strategy employed. Any request for documents outside of estab-
lished discovery procedures that relate to potential or pending
civil and criminal litigation should be brought to the attention
of the case attorney.
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This guidance also does not apply to requests for information
received from Congressional committees or subcommittees. For
guidance on handling such requests, Agency personnel should con-
sult previously issued policy statements which are specific to
Congressional inquiries, Memoranda of Understanding which EPA
has entered into with several committees, and OECM's Congressional
Liaison Officer in coordination with the Office of External Affairs
and, when appropriate, with the Office of General Counsel.
IV. General Principles „
There are a number of statutes, regulations and rules of pro-
cedure which place constraints on the Agency's discretion in
releasing enforcement documents to the public. These statutes
include: the Administrative Procedure Act, (APA); the Freedom
of Information Act (FOIA) which is included in the APA, and
requires publication and release of certain Agency documents;
the Privacy Act which prohibits release of certain information
pertaining to individuals; and various environmental statutes
which prohibit release of trade secrets and mandate release of
certain pollution data. Other rules of procedure, such as Rule 6
of the Federal Rules of Criminal Procedure, require safeguarding
grand jury material. The EPA has promulgated regulations which
implement FOIA and state Agency policy on how it will use its
discretion to release information in certain cases. These
statutes and regulations are described more fully in the Appendix
(page 24).
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Congress has required that agencies release all requested
records unless FOIA provides a specific exemption authorizing
the withholding of those records. This guidance is based in large
part on whether specific documents fall within one of the exemp-
tions from mandatory disclosure. If a document fits within
one or more of the exemptions that are discretionary under EPA's
regulations (exemptions b(2), b(5) and b(7))f the Agency's
decision to release a document should be determined on a case
by case basis. The EPA should consider releasing the document
if no important purpose would be served by withholding it.
Generally, once EPA releases a document, it may not later
withhold the document unless the Agency can show: 1) that it was
disclosed under explicitly limited and controlled conditions, and
2) that EPA preserved the rationale for the privilege established
in the exemption. An unauthorized leak of a document does not
necessarily waive an EPA privilege.
Oh occasion, a party already engaged in an administrative
enforcement proceeding or litigation with the Agency may use
FOIA to enhance, replace, or otherwise modify the discovery
rules. These rules are traditionally available under the
i
Federal Rules of Civil Procedure, Federal Rules of Criminal
Procedure, discovery rules of other Federal courts and normal
Agency discovery procedures. Whether or not there is an estab-
lished administrative discovery procedure (e.g., the consoli-
dated rules of practice found in 40 C.F.R. Sections 22.01 et
seq.) the Agency may consider withholding documents where a
privilege exists to withhold the document under a FOIA exemption.
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For example, EPA is able to withhold investigatory records
compiled for law enforcement purposes the release of which would
generally interfere with a prospective or pending enforcement
proceeding under exemption 7(A) of FOIA. Investigatory records
(files) were defined originally by Congress as "related to enforce-
ment of all kinds of laws, labor and securities laws as well as
criminal laws. This would include files prepared in connection
with related Government litigation and adjudicative proceedings."
H.R. Pep. Sc. 149", 89th Cong., 2d Sess. 11 (1966). Expressed
another way, the information must be compiled for a demonstrated
law enforcement purpose within the Agency's enforcement authority,
or gathered in the good faith belief that the prospective defendant
might violate or has violated federal law. This is in contrast
to information gathered for routine regulatory purposes or from
customary compliance monitoring. However, an evaluation is still
necessary to determine whether the release of a document will
interfere with an investigation.
Exemption 7 of FOIA contains five additional withholding
privileges for investigatory records which EPA will less fre-
quently encounter in an administrative, civil or criminal
enforcement context. They are documents whose release would
result in at least one of the following five consequences:
7(B) deprive a person of a right to a fair
trial or an impartial adjudication,
7(C) constitute an unwarranted invasion of
personal privacy,
7(D) disclose the identity of a confidential
source,
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7(E) disclose investigative techniques-and
procedures,
7(F) endanger the life or physical safety of
law enforcement personnel.
EPA will not provide any person with exempt documents the
release of which would harm a case in litigation. Nevertheless,
the Agency must respond to any FOIA reguest on a case by case
basis. Agency personnel, including the appropriate attorney,
should first determine whether an exemption applies. If an
exemption does apply, the Agency may withhold the document, or
at its discretion, release it to the requesting party. If an
exemption does not apply, EPA must release the document. Under
FOIA, a party's rights are neither enhanced nor diminished by
his or her status as a private litigant. NLRB v. Robbins Tire
and Rubber Co. 437 US 214 (1978).
Various policy memoranda explain the need to segregate and
secure those documents related to criminal investigations and
enforcement activity (e.g., a Memorandum from the Assistant
Administrator dated January 7, 1985, entitled "Functions and
General Operating Procedures for the Criminal Enforcement
Program"). EPA personnel should follow such guidance to prevent
the release of documents related to criminal proceedings. This
Document Release guidance is consistent with existing procedures
and, as a general matter, is applicable to documents related
both to criminal and civil enforcement activity.
V. Releasing General Enforcement Documents
A. Enforcement Policy Document
These documents generally instruct Agency staff on how EPA
will conduct its enforcement activities. Examples include a
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-8-
Memorandum from the Administrator dated September 20, 1982, on
enforcement action against stationary air sources which will
not be in compliance by December 31, 1982/ and a Memorandum from
the Assistant Administrator for Air, Noise and Radiation dated
September 15, 1982, on issuing notices of violation under the
Clean Air Act.
EPA will release to the public those documents containing
final enforcement policy. Such documents are signed by at least
a Divison Director or equivalent. This policy is consistent
with the Agency's objective of informing the public about how it
conducts business.
Even if documents contain predecisional or deliberative
information, EPA will not necessarily withhold such documents or
portions of them under FOIA exemption 5. The Agency will withhold
those documents only if an important purpose would be served by so
doing. An important purpose for withholding might be found where
release would be likely in the future to inhibit honest and frank
communications necessary to effective policy making or might
inaccurately reflect or prematurely reveal the views of the Agency.
Such predecisional documents include draft copies which are often
circulated within the Agency for review and comment, documents
which discuss recommendations and options for the establishment
of enforcement policy, and documents which transmit them if such
documents reveal content. These documents play an integral part
in development of final enforcement policy.
A waiver of this deliberative process privilege can occur,
as in other contexts, if EPA distributes a document outside the
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Federal government. Nevertheless, if the Agency can show that
the disclosure was limited and controlled, waiver may not apply.
For example, disclosure to a state agency may result in waiver
unless the responsible office has determined that state comment
is important to the Agency decision-making process and has taken
steps to ensure that the state will keep the distributed draft
confidential (e.g., transmittal of the draft with a cover letter
explaining the need for limited distribution, numbering the docu-
ments sequentially, and requesting that all copies be returned to
VT A rt 1 1 e i a I .t t « »' * \n\m«» \\ M .
Thrno ilorum^ntn lulato to cut 01 rtimoitt InltlMlveM
atrntugios which the Agency develops to ensure that sources
comply with environmental statutes and regulations. An example
is a guidance Memorandum from the Assistant Administrator for
Solid Waste and Emergency Response dated June 18, 1982, which
broadly describes fiscal year 1983 RCRA permit and inspection
numbers. Agency personnel should release documents which pertain
to a broad class of sources, but withhold documents which are so
specific that an individual source could use the information to
circumvent EPA enforcement activity.
For example, final Agency documents detailing enforcement
expenditures for compliance inspections during a fiscal year are
documents which EPA should release to the public. On the other
hand, EPA should consider withholding documents, or portions
thereof, specifically detailing the projected inspection of
enforcement targets in various metropolitan areas. These
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documents are primarily intended for internal use and their re-
lease could enable a source to circumvent environmental statutes
and regulations. This rationale will likely be available only in
the narrow context of detailed regional plans to implement a
specific enforcement effort. If the document is not an investi-
gative record associated with a specific enforcement case, EPA
may be able to apply exemption 2 of FOIA. This exemption relates
to documents involved with internal agency personnel rules and
practices. The case law has extended the exemption to certain
predominantly internal documents, the release of which would
significantly risk circumvention of agency regulations or statutes.
Crocker v. Bureau of Alcohol, Tobacco and Firearms, 670 F.2d 1051,
1074 (D.C. Cir. 1981). of course, a regional plan that is in the
form of a recommendation rather than a final agency policy could
also be withheld under exemption 5's deliberative process
privilege.
C. Management/Administrative
These documents relate to the day-to-day operation and
management of the Agency. An example is a Memorandum from the
Associate Administrator and General Counsel dated November 28,
1983, which explains the requirement for clearance of significant
enforcement pleadings.
Although the Agency has discretion to withhold internal
personnel rules and routine management documents under FOIA
exemption 2, EPA will generally release these documents unless
their release would interfere with Agency operations. The
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release of most final documents related to routine budget matter*
and internal Agency management will not interfere with overall
///*" / *'.*;,. -.', * , * ,-, -, ;.r'str«x( '.??;-..-. r -. -.S.KZ : •:. \a fr.c S
operations considers that a release would interfere with Agency
operations, it may withhold the documents under exemption 2 of
FOIA. Instances of interference are rare, and consultation with
the office of General Counsel or Regional Counsel is recommended
in such cases.
EPA can also withhold documents containing preliminary
enforcement budget information if their release would interfere
with the frank exchange of ideas prior to final budget decisions.
These documents may be exempted from disclosure under exemption 5.
D. Deliberative Support Documents
These documents accompany other enforcement documents. They
include certain transmittal memos, memos containing recommendations/
evaluation of enforcement options, suggestions, analyses, etc.,
related to general enforcement matters.
In most cases, EPA will use its discretion to release doc-
uments which are predecisional intra- and interagency documents,
unless such production would cause harm to the enforcement process.
The rationale for retention includes the protection of open and
frank discussion of enforcement options. The Agency can withhold
the deliberative portions of such requested documents under
exemption 5 of FOIA.1/
I/ "Guidance for Assertion of Deliberative Process Privilege"
Tssued by the Administrator, October 3, 1984; and memorandum
from acting General Counsel, same subject, issued April 22, 1985.30
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E. Reference Files
These are materials that enforcement personnel use for
assistance in performing general Agency business. They include
technical files, sample forms, etc. Generally, EPA will make
reference documents available to the public with the exception
of materials which EPA employees own and materials published by
non-federal organizations which already are readily available
from other sources. (See 40 C.F.R. §2.100(b) for definition of
agency record.)
F. Documents Containing Attorney-Client Communications
These documents which are not necessarily case specific
contain communications made in confidence between Agency staff
and attorneys for the purpose of obtaining or providing legal
advice related to EPA matters in which the "client" is authorized
to act.
EPA legal personnel will not disclose, without the client's
consent, communications made in confidence to or from an Agency
attorney for the purpose of obtaining or providing legal advice
related to an EPA matter. EPA may withhold documents containing
such information, if drafted by the client or the attorney. Also
in order to protect the inadvertent disclosure of the client's
confidential factual information it may withhold documents whether
or not the communication is made in the context of litigation.
The documents may be exempted from disclosure under the attorney-
client privilege included in exemption 5. Mead Data Control v.
U.S. Department of the Air Force, 566 F.2d 242 (D.C. Cir. 1971).
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There are instances when the Agency may choose not to claim
this privilege and therefore will release documents containing
these communications. For example, EPA will release the docu-
ments if the program personnel do not consider the factual
information confidential either at the time it is communicated
or subsequently thereto. If EPA wants to withhold documents,
it should be prepared to demonstrate that the program client
expected confidentiality. Personnel making intra-regional com-
munications between a program office and a Regional Counsel's
office should be sensitive to the fact that the communications
may be confidential and not available for disclosure at a later
date. For example, the document may be stamped "confidential,
not for release under FOIA" thus limiting distribution only to
the EPA personnel who need to know and are authorized to act for
EPA on the particular matter. EPA should release documents in
which the attorney is only stating general Agency policy or if
the advice is later adopted as Agency policy. EPA should consider
release of documents, or portions thereof, containing attorney-
client communications if the release would not harm future frank
exchanges between Agency staff and its attorneys.
VI. Releasing Case-Specific Documents
A. Case Files
In General
Documents in case files contain legal and/or technical
information related to a specific case or party. Case files are
frequently located in a number of offices, including offices
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that conduct field investigations, perform technical evaluations,
or provide legal assistance.
Case file documents accumulate at these separate offices
during different stages in the enforcement process (e.g., while
EPA is investigating a party, while EPA is initiating an admini-
strative enforcement action, or after EPA issues a formal enforce-
ment document). Whether EPA will release the information may
depend on the stage of the enforcement activity. Release is
generally appropriate when the party is in compliance with the
law or the compliance status is unknown. Documents containing
technical information related to the party's routine compliance
monitoring or tracking are available to the public or to poten-
tially responsible parties in CERCLA litigation.
Once EPA identifies a potential violation, it may withhold
investigatory documents in order to prevent interference with
any potential or pending enforcement proceeding. In such cases,
EPA should withhold the documents to prevent harm to any potential
enforcement action which may occur by the premature release of
evidence or information. If EPA wants to withhold the documents,
it has the burden of demonstrating the potential harm to an
enforcement proceeding. This decision should be made on a case
by case basis. EPA would be able to withhold these requested
documents under exemption 7(A) of FOIA. NLRB v. Robbins Tire and
Rubber Co., 437 U.S. 214 (1978).
In many cases, the Agency will use its discretion and release
investigatory data. This policy (with the exception of criminal
investigations) serves the useful purposes of helping a source
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identify the environmental problem, allowing the source to comment
on the accuracy of EPA factual findings, and informing the public
of the extent of the environmental problem.
In other instances the Agency will consider withholding of
investigatory documents. The further the Agency proceeds in any
enforcement action or the more data the Agency interprets, the
more reluctant it will be to use its discretion and release
documents without a mutual document exchange with the source.
The Agency will also be reluctant to release investigatory
findings where adequate quality assurance checks have not been
made, and the release of the findings could interfere with the
enforcement activity. Finally, the necessity to protect confi-
dential information, and the greater need to maintain secrecy in
criminal investigations provide valid reasons for the Agency to
retain documents. Agency personnel should always discuss
investigatory documents which relate to enforcement activity
with the case attorney, the Regional Counsel or an OECM attorney
prior to the release decision.
Once an enforcement action is concluded, EPA will be more
willing to release investigatory documents because their release
is less likely to interfere with an enforcement proceeding.
Nevertheless, if their disclosure would interfere with other
similar or related proceedings, reveal the identify of informers,
or if other exemption 7 privileges still apply, EPA may withhold
the documents.
Case files may contain information in documents which a com-
pany considers confidential business information. As discussed
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1f.
in the Appendix, part D, EPA is statutorily prohibited from
releasing confidential business information.
Attorney Work Product And Attorney-Client Materials
Other types of documents which EPA may withhold are those
prepared by, for, or at the request of an attorney in anticipa-
tion of litigation. The courts allow EPA to withhold such
attorney work product documents in order to create a zone of
privacy around the attorney to protect the adversarial process.
Hickman v. Taylor, 329 U.S. 495 (1947). While EPA may withhold
such documents under exemption 5, it may make a discretionary
release of the documents. In such a case, the Agency staff,
including the attorney, would determine on a case by case basis
that the release would not result in harm to the attorney's
ability to operate freely in litigation. In order for EPA to
withhold a document under the attorney work product privilege/
the document must have been prepared at the time when there
was some articulable violation. Litigation need not have been
pending; however, there should be some prospect of litigation,
either administrative or judicial.
Specific types of documents which may be protectable as
attorney work products and which EPA may choose not to release
are:
0 Investigative reports prepared by field
investigators under the general direction
of attorneys to verify further a viola-
tion, and which would be relied upon by a
reviewing attorney;
0 Documents prepared at the request of
technical staff working with attorneys
in anticipation of, or preparing for, an
administrative hearing or litigation;
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0 Reports prepared by consultants under
direction of attorneys to assist attorneys
in preparation for litigation;
0 Reports from experts prepared under direction
of attorneys which organize and summarize the
evidence for a particular enforcement action;
0 Attorney-prepared factual synopses of, and
opinions on, a particular case;
0 Attorney notes summarizing the facts and
observations on the evidence;
0 Attorney notes of conversations with program
personnel, company representatives, etc.; and,
0 Witness interviews conducted by attorneys or
employees working on their behalf.
Below are examples of documents which may not be protected as
attorney work products, but could be protected as investigatory
records if they meet the requirements of exemption 7:
0 Routine investigatory reports gathered
during regular compliance monitoring; and,
0 Verbatim witness reports and statements.
Whether or not a document is an attorney work product will
depend on a case by case review of the document in the context of
the particular enforcement activity. Even if the attorney work
product privilege does not apply, other exemptions, such as for
investigatory records (exemption 7), may permit the Agency to
withhold the document.
Case files may also contain documents with attorney-client
communications. EPA policy related to attorney-client documents
is discussed above on pages 12 - 13 in the context of general
documents.
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Settlement Documents
In negotiating a settlement of an enforcement action, EPA
will frequently exchange draft settlement terms with the opposing
party. These terms are often embodied in a draft administrative
or judicial order. The drafts facilitate Agency consideration
of settlement.
The law on whether an agency may withhold settlement docu-
ments under exemption 5 of FOIA is currently unresolved. If
there is the likelihood that non-parties will request settlement
documents during litigation, the lead counsel should consider
seeking a protective order. Or at the minimum he should seek a
stipulation between parties that they will not release the
settlement documents. Although in this latter case, the stipu-
lation would not negate EPA's obligation to honor a FOIA request/
insofar as it is valid.
In all such settlement situations, even if no protective
order or stipulation exists at the time of a request under FOIAr
EPA may consider withholding such documents under the theory
that review and comments are necessary for intra-agency review
of the settlement (exemption 5). However, before such records
are withheld, consultation with the Office of General Counsel or
Regional Counsel is recommended in view of the unsettled law in
this area. Any transmittal of settlement documents to an opposing
party should explain that the Agency expects that party to keep
the documents confidential. It should also contain language indi-
cating that the limited dissemination is only intended to help the
Agency decide whether the settlement is appropriate.
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The above guidance is consistent with the Agency goal of
providing for public participation in the litigation settlement
process. If a non-party feels that it needs to protect its
interests in particular litigation, the non-party may seek
intervention in a civil suit. Depending upon the scope of
intervention permitted by the Court, the party-intervenor may
participate in resolving the litigation by reviewing a negotiated
order or even participating in the negotiations. In addition,
the Department of Justice will notify the public in the Federal
Register of any proposed judicial consent decree. The public
will then have the opportunity to comment on the decree before it
becomes final.
Other Documents
Other documents which may be located in case files are law
enforcement documents which discuss unique investigative techni-
ques not generally known outside the government. EPA need not
disclose such documents when they describe specific investigatory
techniques employed to detect violations or report on techniques
for a particular investigation (e.g., a document which lists
those particular facts which a field investigator will examine
during the inspection of a narrow class of sources). EPA should
not disclose such documents if the release of the document could
assist a potential target of investigation in avoiding EPA's
detection of an existing violation. EPA is able to withhold
these requested documents under exemption 7(E) of FOIA.
Document retention should not extend to routine procedures
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already known to the public, such as common scientific tests,
technical reports which discuss indicators of compliance,
and methods for interviewing witnesses.
EPA will generally release to the public enforcement docu-
ments which it issues to sources during formal enforcement
actions (other than pre-final settlement documents). Examples
of such documents include notices of violation under the Clean
Air Act, administrative orders, and pleadings which are filed
with an administrative hearing officer or court. Since the
decision in Cohen v. EPA, 575 F. Supp. 425 (D.D.C. 1983), EPA
has decided to release, except in very limited circumstances,
the names of potentially responsible parties for hazardous waste
site clean-up in response to FOIA requests. EPA will enter the
names into the data base of a computer system and will provide
requesters with a list of potentially responsible parties who
have received notice letters. (See Memorandum from Gene A.
Lucero, Director of the Office of Waste Programs Enforcement to
Waste Management Division Directors dated December 9, 1983.)
Documents may be in enforcement files which relate to how
EPA should use its enforcement discretion to prosecute a particular
polluter. As a general matter, EPA need not release such documents
if to do so would cause harm to the enforcement process. The
EPA is able to withhold these documents, if predecisional, because
under exemption 5 they would compromise the deliberative process
of the Agency, as attorney work product, and/or as attorney-client
privileged. In addition, they may be withheld if they are investi-
gatory documents, the release of which would interfere with a
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potential or pending enforcement action (exemption 7(A)). EPA
will release documents containing general enforcement discretion
policy statements, unless it is clear that their release would
interfere with enforcement proceedings and therefore qualify
them as investigatory records.
The need to withhold documents discussing enforcement
discretion may diminish once a final decision is made or a case
is concluded. At that time, in responding to a FOIA request
after final action, the office considering a document release
should assess whether the release of a predecisional delibera-
tive document or an attorney-client communication would hinder
free and frank discussion. The attorney work product privilege
is not necessarily lost if litigation, or the potential for
litigation, no longer exists. FTC v. Grolierr Inc. 103 S.Ct.
2209 (1983). Even in the case of concluded or halted criminal
actions, additional concerns might preclude the release of the
documents. EPA will not release documents if they disclose the
identity of a confidential source, confidential information, or
investigative techniques and procedures, or if this release
would endanger the life or physical safety of law enforcement
personnel. These exemptions under FOIA related to criminal
cases are found in exemptions 7{D), (E) and (F). (See page 6.)
B. Case Status Reports
These are manually created or computerized documents in which
the Agency reports enforcement activities. The documents may be
related to compliance tracking, general enforcement planning, and
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ongoing specific enforcement actions including active cases
against violating sources.
These case status reports serve a number of functions,
including compliance monitoring. The Agency will make available
to the public documents containing information relating to track-
ing various matters related to pollution sources. The EPA will
consider withholding documents (including non-public documents
after a case is referred or filed) once a source is identified
as violating an environmental standard. Whether the Agency will
release a document after it makes that identification depends on
the degree to which its release will interfere with enforcement
proceedings. For example, the release of a list of suspected
violating sources for which EPA is completing its investigations
might interfere with the normal enforcement process. The EPA is
able to withhold these requested investigatory reports under
exemption 7(A) of FOIA. Other case status reports are used as
litigation planning and management tools. These reports,
whether prepared by attorneys or program personnel working with
the attorneys, might fall within the category of attorney work
product as discussed above.
VII. Conclusion
All determinations for the release of any document must be
made on a case by case basis, in light of applicable legal
authorities and the guidelines discussed in this document.
Enforcement attorneys are available at headquarters and in all
regional legal offices for additional consultation on these
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matters. Regions are encouraged to establish internal procedures
to ensure that the Regional Counsel is notified of all written
requests for enforcement-related documents.
The policies and procedures set out 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.
Courtney M. Price
Assistant Administrator for
Enforcement and Compliance Monitoring
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APPENDIX
There are a number of statutes and regulations which place
constraints on the Agency's discretion to release enforcement
documents to the public. The statutes listed below expressly
require or prohibit disclosure of records; the regulations
address EPA policy.
A. Administrative Procedure Act (APA)
The Freedom of Information Act (FOIA) is contained in Section
552 of the APA. 5 U.S.C. § 552. Congress enacted FOIA for the
express purpose of increasing disclosure of agency records. The
first part of FOIA mandates the disclosure of certain agency
documents. An agency is required to publish in the Federal
Register certain enumerated types of material. In addition,
FOIA requires all agencies to index and make available for public
inspection and copying other enumerated types of material. Such
documents include statements of policy and interpretation adopted
by the agency, administrative staff manuals, and instructions to
staff that affect members of the public. Finally, FOIA requires
disclosure, on request, of all reasonably described records,
unless the documents can be classified within one or more of the
nine categories of records that are exempt from the disclosure
requirements. Court decisions have clarified which documents
are properly classified as exempt from mandatory disclosure.
Although FOIA permits the Agency to withhold certain
documents from disclosure, it does not provide guidance on how
the Agency should use its discretion to release "exempt" or
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"privileged" documents. Because FOIA contains an exemption
from release for certain documents it does not automatically
mean EPA should withhold them.
Accordingly, EPA has promulgated regulations which clarify
how the Agency will utilize its discretion to release documents
which it could withhold as exempt under the statute. These
regulations are found in 40 C.F.R. Part 2.
B. The FOIA Regulations
The Agency has determined that it will not release any
document which falls within certain of the exemptions unless it
is so ordered by a federal court or in "exceptional circumstances"
with the approval of the Office of General Counsel or Regional
Counsel. 40 C.F.R. Section 2.119. These documents include those
related to national defense or foreign policy; documents for which
a statute prohibits disclosure; trade secrets; personnel/medical
and related files, release of which would constitute an unwarranted
invasion of personal privacy; reports prepared by, or for, an
Agency responsible for regulating financial institutions; and
geological and geophysical information. On the other hand, the
regulations allow the Agency to utilize its discretion in decid-
ing whether to release requested documents related to internal
personnel practices, intra-agency or interagency memoranda, and
investigatory records. Disclosure of such records is encouraged
if no important purpose would be served by withholding the records.
40 C.F.R. Section 2.119(a)
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C. Privacy Act
Congress enacted the Privacy Act in 1974 to promote govern-
mental respect for the privacy of citizens. 5 U.S.C. § 552a.
Section 3(b) of the Act prohibits agencies, except in 12 specified
instances, from releasing or disclosing any record maintained in
a system of records pertaining to an individual (other than to
that individual) without prior written consent of the individual.
If EPA must release a document in response to a FOIA request, it
is exempt from the nondisclosure provisions of the Privacy Act.
D. Confidentiality
The environmental statutes which EPA enforces prohibit the
release of documents or information that contain trade secrets
or confidential commercial or financial information. This pro-
hibition is usually located in the individual section of the
statute dealing with EPA investigatory authority, e.g., Section
114 of the Clean Air Act, 42 U.S.C. § 7414; Section 308 of the
Clean Water Act, 33 U.S.C. § 1318; Section 3007 of the Resource
Conservation and Recovery Act, 42 U.S.C. § 6927; and Section 104
of the Comprehensive Environmental Response, Compensation, and
Liability Act, 42 U.S.C. § 9604. In addition, The Trade Secrets
Act, 18 U.S.C. § 1905, contains an independent prohibition against
certain release of confidential business information by agencies.
Section 1905 makes it a crime for a federal employee to disclose
such information.
On September 1, 1976, EPA promulgated procedures and substan-
tive rules on how to handle information that may be confidential.
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These regulations at 40 C.F.R. Part 2, Subpart B, establish
basic rules governing the handling of business information.
The regulations at 40 C.F.R. § 2.204 require that before docu-
ments are released, EPA personnel must determine whether the
documents are confidential, or whether the business asserts a
claim of confidentiality. In general, if there is a claim, the
material cannot be released prior to a review and confidentiality
determination by the appropriate EPA legal office and notice to
the submitter. Agency guidance explaining the procedures for
handling business information under the regulations can be found
in a Memorandum from the Deputy Administrator dated November 6,
1980, and entitled "Disclosure of Business Information under FOIA."
E. Statutes Requiring Disclosure
Many of the environmental statutes EPA enforces generally
require the disclosure of certain information. For example the
Clean Air Act requires that information EPA obtains under Section
114, other than trade secrets, shall be available to the public.
CERCLA has a similar provision in Section 104(e)(2). Where the
environmental statute generally requires disclosure of information
obtained under the investigatory authority, EPA will interpret
this language consistent with FOIA.
F. The Federal Rules of Civil Procedure and Federal Rules
of Criminal Procedure
Although exemption 5 has not been construed to incorporate
every privilege in civil discovery, generally, those documents
which are privileged under Rule 26 of the Federal Rules of Civil
Procedure are documents which the Agency can withhold under FOIA.
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Federal rules of procedure do not in themselves qualify under
exemption 3 of FOIA, which protects information specifically
exempted from disclosure by statute. However, when Congress
subsequently modifies and enacts a rule of procedure into law
the rule may qualify under the exemption. For example, it has
been held that because Congress altered Rule 6(e) of the Federal
Rules of Criminal Procedure (concerning matters occurring before
a grand jury), that rule satisfies the "statute" requirement of
exemption 3. Therefore, grand jury material in the hands of
Agency personnel can be withheld under FOIA. Other rules require
the release of certain documents to criminal defendants.
G. Bibliography
1. Freedom of Information Case List, U.S. Dept. of
Justice, 1985 Edition;
2. Litigation under the Federal Freedom of Information
Act and Privacy Act, Adler & Halperin, Center for
National Security Studies (9th Edition, 1983);
3. Federal Information Disclosure 2 Vols. James T.
O'Reilly, McGraw-Hill, 1979 (Supplement Available);
4. Guidebook to the Freedom of Information and Privacy
Acts, Clark Boardman Co., Ltd., 1983.
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